author: Mr. Presiding Justice Partlow

text:
    Matteo Zalapi, Plaintiff in Error, v. Holcomb & Hoke Manufacturing Company, Defendant in Error.
    Gen. No. 7,604.
    1. Rescission and cancellation — false representations as ground. False representations, to be sufficient to justify the rescission of a contract, must be as to material facts.
    2. Rescission and cancellation — false expressions of opinion as to value or utility of object of sale as ground. Mere expressions of opinion, by a vendor or his agent, as to the value or utility of a machine, although falsely made, are not sufficient to justify the rescission of the contract of sale, where the parties dealt on equal terms and no special confidence was reposed in -such expressions of opinion.
    3. Rescission and cancellation — sufficiency of evidence to show making of false representations warranting rescission of contract of sale. The fact that the agent of the vendor of a pop corn machine, in order to induce vendee to purchase, statfed to vendee that he had an ideal location for such a business, that the agent would guarantee that the machine would increase vendee’s business 50 per cent, that if it did not the agent would take back the machine and return the money, that the agent would help vendee get started in the business and teach him how to run it, held not to warrant the rescission of the contract of sale on the ground of false representations of material facts, the -statements in question being mere expressions of -opinion for which the vendor was not bound.
    4. Contracts — order, note and mortgage as evidence of contract of sale. Where, in connection with the sale of a machine, a written order therefor was prepared and signed by the parties, and a note and mortgage were executed, the contract between the parties consisted -of the order, the specifications, the note and the mortgage, and all of such instruments must be construed together to determine the agreement between the parties.

      5. Contracts — merger in written contract of prior oral negotiations and conversations. Where following oral negotiations for the purchase and sale of a machine the parties enter into a written contract of sale, all previous negotiations and conversations are merged in the written agreement.
    6. Contracts — admissibility of evidence as to terms of agreement where written contract stipulates against binding effect of unincluded representations, etc. Where a contract for the sale of a machine provided that no agreement, representation or claim of any kind should be binding unless contained in the contract, it was error, in a suit to rescind such contract, to permit proof by vendee of alleged false representations made by vendor’s agent in procuring the sale, such representations not having been included in the contract.
    7. Chattel mortgages — sufficiency of provisions to show date of maturity and of termination of lien. Where a chattel mortgage provided that it was given to secure “the sum of $663.50, as evidenced by a certain promissory note dated -1-for $663.50, payable in 38 installments, 37 of said installments being in the sum of $17.50 each and one for $15.00, and due every two weeks with interest at the rate of 6 per cent per annum from the date of the mortgage,” the court was not precluded from decreeing foreclosure on the ground that there was no way to determine from the mortgage when the payments became due, when they would cease, or whether the lien would extend for more than three years in violation of statute, it being evident from the mortgage that payments were to begin on the day the contract was executed and were to continue at intervals of two weeks until the entire amount was paid.
    8. Chattel mortgages — right to attorney’s fees on foreclosure under provision therefor if litigation necessary. Where a chattel mortgage note provided for the payment of a 15 per cent attorney’s fee if .litigation became necessary, and the mortgagee, after default and refusal to surrender the property to the mortgagee as provided in the contract under which he purchased it, filed a bill in equity to set aside the contract on the ground of fraud, the court, in dismissing the bill for want of equity and decreeing foreclosure under the defendant’s cross-bill, properly allowed the 15 per cent attorney’s fees as provided in the note.
    Error by plaintiff to the Circuit Court of Winnebago county; the Hon. Earl D. Reynolds, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed May 29, 1926.

      Roy F. Hall, for plaintiff in error.
    Early & Early, for defendant in error.
   Mr. Presiding Justice Partlow

delivered the opinion of the court.

Plaintiff in error, Matteo Zalapi, filed his bill in the circuit court of Winnebago county against appellee, Holcomb & Hoke Manufacturing Company, in which he sought to set aside a written contract for the sale of a pop corn machine upon the ground that the contract was obtained by false and fraudulent representations, to cancel a note and chattel mortgage given in payment for the same to secure the return of money paid on said contract, and for an injunction restraining the foreclosure of the chattel mortgage. Appellee answered the bill and alleged that if its agent, who was charged with making the representations, did make them, he had no authority to do so, and they did not bind defendant in error. Attached to the answer was a copy of the order for the machine in which it was stipulated that the title and right of possession should remain in defendant in error until the machine was fully paid for, and that upon failure to make any payment, defendant in error was entitled to take possession, and retain any payments made to cover usage, wear, tear, and expenses. Defendant in error also filed a cross-bill praying that the chattel mortgage be foreclosed. Plaintiff in error failed to answer the cross-bill; although a rule was entered against him, to do so, he was defaulted, and the cross-bill was taken as confessed. Upon a hearing, the original bill was dismissed for want of equity, and a decree was entered upon the cross-bill.

The decree found there was a balance due of $500, to which was added 15 per cent attorney’s fees; that the representations made by the agent who sold the machine were not knowingly made with intent to deceive; that they were not material, but constituted mere puffing in expectation of what the machine would do if properly run; that they were not relied upon and plaintiff in error did not purchase on the faith of these representations; that he was not justified in holding the machine as security for the performance of these representations; that the agent was not authorized to make such representations so as to bind the defendant in error except those appearing contained in the order which was in writing, and that the representations alleged in the bill did not appear in the order.

An agent of defendant in error called at the place of business of plaintiff in error in the city of Rockford, for the purpose of selling him a pop corn machine. The evidence on behalf of plaintiff in error is that the agent said that plaintiff in error’s location was a good one, a wonderful one, and if plaintiff in error put in a pop corn machine it would do some good for his business; that the agent would guarantee it would improve the business at least 50 per cent; that he was absolutely sure the business would pay for the machine out of the proceeds; that if it did not he would take the machine back and return the money, or sell it at small loss; that the agent would do all he could for plaintiff in error when he started the machine, would show him how to start it, how to sell pop corn, and would teach him the business until he knew it; that the agent figured out the expense and profit and stated the price at which certain sized bags of pop corn could be sold; that after the machine had been in for some time plaintiff in error made complaint to the agent that he was not making any money and that he could not operate the machine at a profit and asked the agent to take the machine back or sell it to someone else; that plaintiff in error wrote to defendant in error and that the defendant in error sent another agent to interview plaintiff in error, and this agent promised to either take the machine back or to sell it.

It is insisted by plaintiff in error that these representations made by the agent were material, were relied upon by plaintiff in error, were afterwards ratified by defendant in error, and for this reason plaintiff in error is entitled to the relief prayed.

It is a well known rule of law that false representations which are sufficient to justify the rescission of a contract must be as to material facts. Mere matters of opinion, between parties dealing upon equal terms, though falsely made, are not sufficient. Exaggerations and commendations of articles offered for sale will not avoid a contract. It has been held that such conduct may be reprehensible, but the law does not hold parties responsible for the truth or falsity of expressions of opinion, or as to values where no special confidence as to the merits of an article offered for sale is reposed, and mere puffings and exaggerations are not sufficient to avoid a contract. Fuchs & Lang Mfg. Co. v. R. J. Kittredge & Co., 242 Ill. 88. We are of the opinion that all of the representations proven by plaintiff in error come within this rule and they were not sufficient to justify a rescission of the contract upon that ground.

After plaintiff in error had decided to buy the machine a written order was prepared and signed by the parties, and a note and mortgage were executed. The contract consisted of the order, the specifications, the note and the mortgage. All of these instruments must be read together and construed as one contract. Lotus Grain & Coal Co. v. Zimmer, 217 Ill. App. 591; Gould v. Magnolia Metal Co., 207 Ill. 172. All previous negotiations and conversations between the parties were merged in the written contract and the parties are bound by the written contract whatever it provides. Radzinski v. Ahlswede, 185 Ill. App. 513; Best Tailoring Co. v. Clancey, 185 Ill. App. 408; Ford Motor Co. v. Osburn, 140 Ill. App. 633. The contract provided that no agreement, representation or claim of any. kind shall be binding, or of any force, unless contained in the contract. This provision was binding upon plaintiff in error, and for that reason plaintiff in error should not have been permitted to prove the representations made by the agent prior to the sale.

It is next insisted that the chattel mortgage did not specify the date of the note; that there was no way to determine from the chattel mortgage when the payments became due, when they would cease, or whether the lien would extend for more than three years in violation of the statute; that unless the mortgage was reformed it could not be foreclosed, and as there was no prayer to reform it, the court was not justified in entering the decree of foreclosure. The mortgage provided that it was given to secure “the sum of $663.50, as evidenced by a certain promissory note dated ■-- for $663.50, payable in 38 installments, 37 of said installments being in the sum of $17.50 each, and one for $15.00, and due every two weeks with interest at the rate of 6 per cent per annum from the date of the mortgage.” We do not think there could be any difficulty in determining when the payments became due, nor when they were to cease. They began on the day the contract was. executed and continued at the rate of $17.50 every two weeks until the entire amount was paid.

It is contended that the defendant in error sought to take advantage of the acts of his agent who sold the machine; that the rule is that where one of the parties seeks to enforce the instrument, and the other party seeks to set it aside, then all that was said and done in the making of the instrument may be used to avoid it; that defendant in error ratified the act of its agent and is therefore bound by those acts. What we have already said with reference to the negotiations prior to the making of this contract, the written instruments executed thereafter, and the law with reference to exaggerations and puffings is a sufficient answer to this contention and it does not need to be considered at any greater length.

The note provided for 15 per cent attorney’s fee if litigation became necessary. It is contended by plaintiff in error that the note did not provide that the attorney’s fee should be a part of the decree of foreclosure, nor be a part of the costs of suit, but merely that in case litigation was necessary that an attorney’s fee should be allowed; that litigation would not be necessary until it was commenced, therefore the amount provided for attorney’s fees could not be due until after the litigation was commenced. There is no merit in this contention. Plaintiff in error made default under his contract in the payments for this machine and refused to surrender the machine as provided in the contract, although the title remained in defendant in error. He began litigation by filing the bill in this case in which he sought to set aside the contract upon the grounds of fraud, and to cancel the note and mortgage. To the bill defendant in error filed an answer and a cross-bill, the original bill was dismissed, and relief was granted under the cross-bill. The litigation was started by plaintiff in error. It was necessary in order to protect its rights that appellee should answer the bill and file a cross-bill, therefore litigation was necessary, and the court properly allowed the 15 per cent as provided in the note.

We find no reversible error and the decree of the circuit court will be affirmed.

Decree affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    J. H. Vincent, Appellee, v. Gust Peterson et al. Gust Peterson, Appellant.
    Gen. No. 7,607.
    1. Mortgages — sufficiency of evidence to support decree correcting deeds and giving them effect as mortgages. Evidence on a bill to correct the descriptions in certain deeds, and to have them declared mortgages with a lien prior to certain other deeds, held sufficient to support a decree granting the relief sought.
    2. Equity — waiver of demurrer by filing answer before obtaining ruling thereon. Where a defendant to a bill of equity files an answer thereto, without first securing a ruling of the court upon a demurrer previously filed by him, he will be deemed to have waived the demurrer.
    3. Trusts — conveyance to wife of creditor as rendering grantee trustee for husband. Where instruments conveying certain realty of the grantor were in fact mortgages to secure the payment of an indebtedness of the grantor to the grantee’s husband, such grantee held the naked legal title conveyed by such instruments as a mere trustee for her husband.
    4. Descent and distribution — devolution of title of trustee in realty upon death intestate. Upon the death, intestate, of one holding the naked legal title to realty in trust for her husband, such title descended to her husband and her other heirs at law.
    5. Mortgages — proper and necessary party to maintain bill to have deed given effect as mortgage following death intestate of grantee holding naked legal title in trust for. husbandt Where following the death, intestate, of one holding the naked legal title to realty by virtue of deeds which were in fact mortgages to secure payment of an indebtedness of the grantor to the husband of the grantee, the heirs at law of the intestate other than the husband conveyed to the husband all of their interest in the property, such husband, being the owner and holder of the indebtedness secured, and being vested with all of the legal title conveyed by the deeds, was the only necessary and proper party to maintain a bill to reform such deeds and to have them declared and given effect as mortgages.
    6. Mortgages — propriety of decreeing relief sought by bill to give deeds effect as mortgages and deferring for later hearing issues between defendants raised by cross-bill. Where a bill in equity sought merely to correct the description in certain deeds, to have them, declared mortgages, and to have the amount of the debt fixed and ordered paid, or in default thereof to have the deeds foreclosed as mortgages, and the defendants by cross-bill asked for an adjustment of the equity of redemption between them, it was proper for the court, on determining the issues raised by the answer and the bill, to decree the relief sought by the complainant, deferring for later hearing the questions raised by the cross-bill.
    7. Mortgages — when mortgage foreclosure decree should include provision for, immediate sale by master. In view of Cahill’s St. ch. 77, ¶ 16, it was error for the court, in entering a decree for complainant in a mortgage foreclosure suit based upon an instrument dated July 14, 1921, to direct the master to issue a certificate, and at the expiration of 15 months to sell the property, the amended statute effective July 1, 1921, requiring the master to make the sale at once and issue a certificate thereof, and to issue a deed at the expiration of the 15 months.
    Appeal by defendant from the Circuit Court of Winnebago county; the Hon. Earl D. Reynolds, Judge, presiding. Heard in this court at the June term, 1925.
    Reversed and remanded with directions.
    Opinion filed June 19, 1926.
    Hinchcliff & Miller, for appellant.
    Knight & Mohr and Welsh & Welsh, for appellee.
   Mr. Presiding Justice Partlow

delivered the opinion of the court.

Appellee, J. H. Vincent, filed his bill in the circuit court of Winnebago county against appellant, Gust Peterson, and others, in which he sought to correct the descriptions in certain deeds, to declare the deeds to be mortgages, and to foreclose them as prior liens to certain other deeds. Appellant, Peterson, demurred to the bill, but later filed an answer without the demurrer having been heard. There was a hearing on the bill and answer. The chancellor announced that a decree would be entered in accordance with the prayer of the bill, whereupon Peterson filed a cross-bill, and some evidence was taken thereunder. When it appeared that the litigation under the cross-bill would take considerable time, the chancellor entered a decree granting the relief under the original bill, retaining jurisdiction to determine the issues under the cross-bill, and an appeal has been prosecuted by Peterson.

The evidence shows that Salem Siffren was the owner of lots 11, 12, and 13, in W. T. Robertson’s subdivision of the south half of block 3, of W. T. Robertson’s addition to the city of Rockford. Some time in 1920, he began the construction of a flat building on the east 38 feet of lot 13. A short time later he began the construction of another flat on lot 12, and the west 12 feet of lot 13, and the east 12 feet of lot 11. He became involved financially and was unable to proceed with the improvements. He was indebted to appellee, Vincent, for materials purchased, and on May 6, 1921, made a deed to Ella M. Vincent, the wife of appellee, under the erroneous description of the east 38 feet of lot 13, in block 3, "of W. T. Robertson’s addition to the city of Rockford. This deed was in fact a mortgage to secure $2,213.57, due appellee. On July 17, 1922, Siffren executed to Ella M, Vincent another deed, in which the property was correctly described. This deed was made to correct the error in the deed dated May 6, 1921.

On July 14, 1921, Siffren executed to Ella M. Vincent a deed in which he conveyed to her, under an erroneous description, lot 12, the west 12 feet of lot 13, and the east 12 feet of lot 11. The description was “all in block 3, of W. T. Robertson’s Addition to the city of Rockford.” This deed was also a mortgage given to secure $3,967.77 due appellee. On July 17, 1922, Siffren made a correction deed to Ella M. Vincent, in which the land last described was properly described.

On August 3, 1921, Siffren made a warranty deed conveying to Peterson lots 11, 12, and 13. This deed erroneously described the lots as being “in Block 3, in W. T. Robertson’s Addition to the city of Rockford.” Peterson went into possession of all of the property, or at least a part of it, collected rents, paid taxes, made improvements, and assumed indebtedness created by Siffren, which would have been a lien on the property.

Ella M. Vincent died intestate on August 12, 1923, prior to the filing of the bill of complaint herein, leaving her husband, her brother, and a half brother as her only heirs at law. The brother and half brother conveyed to appellee all of their interest in the lots as held by Ella M. Vincent.

It is insisted by appellant that the property was conveyed to Peterson subject only to the deed to Ella M. Vincent, to the east 38 feet of lot 13; that Peterson paid a valuable consideration for the conveyance, and that the court should have so decreed; that the only incumbrance held by Ella M. Vincent, which was prior and paramount to Peterson, was the first mortgage or deed dated May 6, 1921; that at the time Peterson obtained his deeds he had no knowledge of any subsequent deeds; that they were not on record prior to the date of his deed, consequently his deed had priority over the deed of July 14, 1921, and the correction deed of July 17, 1922.

This involves the question of whether or not Peterson at the time of the delivery to him of his deed on August 3, 1921, knew of the execution and delivery to appellee of the deed of July 14, 1921. Peterson admits that he knew that on May 6, 1921, Siffren conveyed to Ella M. Vincent, to secure appellee’s indebtedness, the east 38 feet of lot 13, which deed was recorded May 9, 1921, and that it constituted a lien prior to any rights acquired by him under his deed of August 3, 1921. The deed of July 14, 1921, was delivered to Vincent on the day it bears date, but at the request of Siffren, in order that a first mortgage on the lots conveyed might be cleared up, it was temporarily withheld from record and was not recorded until September 14, 1921. On August 3, 1921, Siffren conveyed to Peterson, and the deed was filed for record September 9, 1921. At the request of Siffren, Peterson delivered to Siffren at the time this deed was given, and as a part of the same transaction, the following which was in the handwriting of Peterson:

“Rockford, Illinois, August 3, 1921.
“I do hereby agree with Salem Siffren that I shall not record deed given to me on Saturday 11-13-13, Block 3, W. T. Robertson’s Addition to the city of Rockford, until a former deed given not now recovered (recorded) to Siffren, or will at which time a settlems A. R. to be made. Gust A. Peterson.”

There is nothing in the record which would justify Peterson in claiming that on account of the mistake in the Vincent deeds he had no legal notice of what these deeds or either of them covered, or intended to convey. A similar mistake in description was contained in all the deeds, including the two to Vincent, and the one to Peterson. The memoranda written by Peterson contains the same mistake. Peterson took this property under the mistaken description. He had full knowledge of the existence of the deed of July 14, 1921, to Vincent, and the purpose and intent of it, before Siffren gave him the deed of August 3, 1921. This appears from the testimony of Siffren and his wife, by the written memoranda signed by appellant, and by some parts of appellant’s own testimony. The only evidence to the contrary is the statement of Peterson himself. Appellee testified that he had a talk with Peterson and the latter admitted the existence of the Vincent liens and promised to pay the indebtedness, or secure money to pay them. The written memoranda did and could refer only to the deed of July 14, 1921. The chancellor was not in error in holding that both deeds to appellee were prior to the deed to Peterson.

It is urged that the court should have sustained the demurrer of Peterson to the bill because Ella M. Vincent had died before the suit was commenced; that letters of administration had been issued upon her estate; that the administration on her estate had not been terminated; that the payment of the debts claimed to be due to Vincent would not bar the administrator from later demanding and recovering the same debts.

Where a defendant to a bill in equity files an answer thereto, without securing a ruling of the court on his demurrer which he has previously filed, he will be held to have waived the demurrer. Noth v. Noth, 292 Ill. 536; Long v. Fox, 100 Ill. 43. By answering a bill after the overruling of a demurrer thereto, the defendant waives the demurrer and cannot assign as error the overruling of the demurrer. In order to preserve the right to assign error on the overruling of a demurrer the party must stand by his demurrer. Eddy v. Eddy, 302 Ill. 446; Baumgartner v. Brandt, 207 Ill. 345. Under the averments of the bill, the lack of denial in the answer, and under the proofs submitted, all necessary parties were included in the bill.

The original bill was filed November 23, 1923. It alleged that Ella M. Vincent died intestate, August 12,1923, leaving as her sole heirs at law, her husband, the appellee, her brother, and her half brother. Both the brother and half brother, prior to the filing of the bill, conveyed all their interests in the property to appellee. It was alleged in the bill, not denied in the answer, and established by appellee’s evidence, that the two items of indebtedness of Siffren, to secure which two deeds involved in this case were given, were due and belonged to appellee. Under these facts, Ella M. Vincent was a mere trustee holding the naked legal title for the benefit of appellee. Upon her death intestate, the naked legal title passed under the law to her husband and heirs at law. Appellee, at the time the original bill was filed, held the legal title which passed from Siffren and wife to Ella M. Vincent by these deeds. It necessarily follows that appellee, being the holder and owner of the indebtedness secured, and being vested with all the legal title which passed by these deeds, was the only necessary, or even proper party to file the bill in this case. It is conceded that the deeds were mortgages and therefore the whole title under the two deeds was vested in appellee.

It is insisted that Peterson has not been granted the relief to which he is entitled, namely, that the description of the land as contained in the deed to him should be corrected; that he be decreed to be the owner of the land; that he has a right to have determined at the same time, in the same decree, all rights to the real estate in question; that there was no good reason for postponing the determination of his rights under the cross-bill, and subjecting his property to foreclosure proceedings and sale under the original bill; that unless this decree is reversed he will be required to pay the costs of foreclosure and sale, and in all probabilities his entire equity in the property will be wiped out by reason of the fact that the property will not bring its real value on a sale with the title so incumbered.

The original bill sought merely to have the deeds declared to be mortgages, to have the amount of the debt fixed and ordered paid, and in default thereof to have the deeds foreclosed as mortgages. The bill did not involve a controversy between Peterson and Siffren as to who was the owner of the equity of redemption. The cross-bill was filed by Peterson to determine that question. When the court determined the questions which were raised under the original bill, the court properly entered a decree granting the relief prayed for in the original bill and provided in that decree that appellant and Siffren, without delay proceed to settle their differences under the cross-bill.

In Handly v. Munsell, 109 Ill. 365, which was a foreclosure case where there was a dispute between two defendants, the court said: “Complainant in the original bill has not now, and never had, the slightest interest in the litigation between the defendants to his bill, so far as the pleadings disclose, and certainly the law will not require him to wait for the amount of money it is conceded by all parties to be due to him, until their controversy can be adjudicated, which litigation might continue for an indefinite period.” The court properly entered a decree upon the original bill and retained jurisdiction to later determine the rights of Peterson under the cross-bill.

The decree provided that the master in chancery should issue a certificate under the deed of July 14, 1921, and that at the expiration of 15 months should make a sale. In this respect the decree was erroneous. Under the law as it existed from July 1, 1917, to July 1, 1921, upon a foreclosure proceeding, it was the duty of the master in chancery to issue a certificate to the mortgagee and at the expiration of 15 months to sell the premises. On July 1, 1921, this law was changed so that the master was required to sell and issue a certificate, and to make a deed at the expiration of 15 months [See Cahill’s St. ch. 77, jf 16]. This error should be corrected so as not to affect the title to the property. For this reason the decree will be affirmed in all respects except as to this one item, but as to this item it will be reversed and the cause remanded to the trial court, with directions to modify the decree so as to comply, with the provisions of the law which became effective July 1, 1921. It will also be the judgment of this court that the appellants pay the costs of this appeal.

Reversed and remanded with directions.


text:
    George O. Smith, Appellant, v. County of Bureau, in State of Illinois, Appellee.
    Gen. No. 7,629.
    1. Statutes — intent of legislature as fundamental rule of construction. A fundamental rule in statutory construction is to ascertain and give effect to the intention of the legislative body which passed the act.
    2. Statutes — rules for determination of legislative intent in construction of statutes. The intent of the legislature in adopting an act is to be ascertained from a consideration of the entire act, the law existing prior to its passage, any changes made in the law by the act, the apparent motive for making such changes, and the consequences which will result from construing it one way or the other.
    3. Schools — resolution of county board allowing additional salary to county superintendent as effective after subsequent salary increase by act of legislature. In June, 1919, following the reelection of a county superintendent of schools for a 4-year term to begin in August, 1919, the county board, pursuant to section 27 of the Fees and Salaries Act of 1909, then in force, voted payment to such officer out of the funds of the county a salary of $500 in addition to the $2,250 salary allowed to him out of the State school fund by such act, and on July 1, 1919, there became effective an amendment to such act increasing the salary of such superintendent to $2,800. Held that the resolution of the board aforesaid was superseded by -such amendment and did not have the effect of fixing the salary at $3,300 for the term beginning in August, 1919.
    4. Schools — validity of salary increase act as applied to county superintendent re-elected prior to enactment for term, to begin after its effective date. Laws 1919, p. 559, amending section 27 of the Fees and Salaries Act of 1909 by increasing the salaries of county superintendents of schools in counties of a certain population who entered upon the discharge of their duties after July 1, 1919,-from $2,250 to $2,800, was not invalid as increasing the salary of an officer during his term of office as applied to a county superintendent of a county of that class who was re-elected in 1918 to serve for a term of four years to begin in August, 1919.
    Appeal from the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed June 19, 1926.

      Cairo A. Trimble and Perry D. Trimble, for appellant.
    Josef T. Skinner, for appellee.
   Mr. Presiding Justice Partlow

delivered the opinion of the court.

Appellant, George 0. Smith, began suit in the circuit court of Bureau county against- appellee, the County of Bureau, to recover $2,000, being a balance of salary alleged to be due him as county superintendent of schools. A demurrer was sustained to the declaration, appellant elected to stand by his declaration, judgment was entered accordingly, and this appeal was prosecuted.

The declaration consisted of two counts. The first count alleged that at the general election in November, 1918, appellant was elected county superintendent of schools for a term of four years to begin on the first Monday of August, 1919; that at the June meeting, 1919, of the board of supervisors, a motion was adopted as follows: “Moved by Cadwalader, seconded by Brown that the salary of Geo. 0. Smith, Co. Supt. of Schools, be raised $500 to begin August 1, 1919. On vote motion carried”; that subsequent thereto, before the first Monday in August, 1919, appellant qualified in the manner provided by law; that the board of supervisors had not prior to said June meeting, 1919, passed any motion or resolution affecting the compensation of appellant; that appellant entered upon his duties on the first Monday of August, 1919, and continued to discharge them for the full term of four years until August 5, 1923; that by reason thereof the appellee became liable to pay appellant said sum of $500 per annum, and being so liable, and in consideration thereof, appellee promised to pay said sum on request, yet the appellee has not paid said sum to the damage of appellant.

The second count is substantially the same as the first, and in addition thereto, alleged the election of appellant to said office at the general election in 1910, his re-election in 1914, and in 1918, and that he duly qualified and served.

Section 27 of the Fee and Salary Act of 1909 [J. & A. St. f 5628] provides that county superintendents of schools shall receive in full, for their services in counties which according to the census of 1900 contained a population of more than 36,000 and not exceeding 50,000, $2,250 per annum, payable quarterly from the State school fund, provided, however, that the board of supervisors may allow additional compensation for such services, payable quarterly from the county treasury.

After the board of supervisors passed the resolution to raise the compensation and make $500 payable out of the county treasury, the legislature, in 1919, amended section 27 so as to provide that county superintendents who shall enter upon the discharge of their duties, after July 1, 1919, shall receive for their services, in counties which according to the census of 1910 contained a population of more than 36,000 and not exceeding 50,000, $2,800 per annum, payable quarterly from the State school fund; provided, however, that the board of supervisors may allow additional compensation for such services payable quarterly from the county treasury [Callaghan’s St. 1920, [[5628].

By the census of 1910, appellee had a population of more, than 36,000 and not to exceed 50,000. During his term of office appellant received $2,800 per year beginning August 1, 1919, which was paid out of the State school fund, but he received no part of the $500, as provided in the resolution of June, 1919.

Appellant contends that the motion passed by the board of supervisors in June, 1919, to raise the salary $500, operated as an additional salary to be paid from the county treasury, regardless of the amendment of section 27 in 1919; that the motion was passed pursuant to the provision of the Act of 1909, which was rewritten in the amendment of 1919; that the statute, when rewritten, should be construed as a continuation of the prior statute and not as a new enactment ; that the action of the county board should continue in force being authorized by the Act of 1919, and, therefore, the total salary which appellant should have received was $3,300 instead of $2,800 per annum.

Appellee contends that the effect of the motion passed by the county board to raise the salary $500 was to increase the salary to the extent of $500 above the salary as then fixed by the existing law; that the amendment of 1919 repealed the pre-existing law, including the action taken by the board of supervisors under it; that appellant was entitled only to the $2,800 salary as fixed by the amendment of 1919, and was not entitled to an additional $500 by reason of the action of the county board; that the motion passed by the county board was in violation of section 11, article 9 of the Constitution, for the reason that it increased the salary of appellant after he had been elected in 1918.

A fundamental rule in statutory construction is to ascertain and give effect to the intention of the legislative body which passed the act. Commerce Commission ex rel. Danville Brick Co. v. Cleveland, C., C. & St. L. Ry. Co., 320 Ill. 214; Smith v. County of Logan, 284 Ill. 163; O’Neill v. Harding, 233 Ill. App. 444; City of Spring Valley v. Chicago, O. & P. Ry. Co., 200 Ill. App. 352. The intent is to be ascertained from a consideration of the entire act, the law existing prior to its passage, any changes made in the law by the act, the apparent motive for making such changes, and the consequences which will result from construing it one way or the other. Armour Grain Co. v. Pittsburgh, C., C. & St. L. R. Co., 320 Ill. 156; City of Rockford v. Schultz, 296 Ill. 254; People v. Chicago, B. & Q. R. Co., 290 Ill. 327; People v. Commissioners of Highways of Sullivant Tp., 270 Ill. 141; Lee v. Board of Education, Marshall Tp. High School Dist. No. 200, Clark Co., 234 Ill. App. 141.

During the 4-year term beginning with 1914, appellant received a salary of $2,250, payable out of the State school fund, but he received nothing from the county. He was re-elected in 1918, and under the statute his term of office was to begin on the first Monday of August, 1919. The statute of 1909 recognized the fact that there might be cases in which the county superintendent would be entitled to more salary than was provided by section 27 payable out of the school fund. In order that he might receive more salary, section 27 provided that, in addition to the salary to be received out of the State school fund, the board of supervisors might increase the salary, which increase was to be paid out of the county treasury. It is apparent in this ease that the board of supervisors, in June, 1919, determined that the salary of $2,250 received by appellant was not adequate, and that it should be raised. The language of the resolution is that it be raised $500. In other words, it was the purpose and intention of the board of supervisors that during the next 4-year term, appellant should receive $500 more than the $2,250 provided in section 27, making a total salary of $2,750. The motion to increase the salary was necessarily made under the Act of 1909, for the reason that the Act of 1919 had not been passed, was not in force and effect, and the board of supervisors had no knowledge that it would be passed, therefore it cannot be claimed that the board of supervisors intended to raise the salary $500 in addition to the $2,800 provided in the amendment of 1919. The conclusion is therefore irresistible that it was the intent and purpose of the board of supervisors to increase the salary only to $2,750.

The 1919 amendment went into effect after the increase in salary was made by the board of supervisors. It expressly provided that it should apply to all county superintendents who should enter upon the discharge of their duties after July 1, 1919. It provided a new scale, or basis of salaries, after July 1, 1919, to take the place of the old scale under the Act of 1909. It fixed the salary at $2,800 and such additional amount as the board of supervisors might see fit to allow. It did not provide that the salary should be $2,800 and such further sum as the board of supervisors had, prior to that time, allowed and fixed. To place such a construction upon the amendment would be contrary, not only to the language used, but it would also be contrary to the apparent intent of the legislature. If the Act of 1919 superseded the Act of 1909, then, after the amendment was made, it became the duty of the board of supervisors to determine whether the $2,800 should be the entire salary, or whether, in their judgment, appellant was entitled to an additional amount payable out of the county treasury. The effect of the amendment was not only to supersede the $2,250 fixed by the Act of 1909, but it also superseded the additional allowance as made prior to the date of amendment of 1919. In order for appellant to receive more than $2,800, it was necessary for the board of supervisors to vote the increase after the amendment had been made and before appellant assumed his office. It is true that most of the language of the. Act of 1919, is identical with the language of the Act of 1909, but this fact is not conclusive in determining the effect of the amendment. If the board of supervisors, prior to the amendment, was of the opinion that appellant should receive a salary of only $2,750 and that such a salary was sufficient and adequate, it certainly is not true that the board in the absence of any affirmative action intended to make the salary $3,300. After the amendment went into effect and before appellant entered upon his duties, the board of supervisors took no steps to allow an additional salary and for that reason appellant was only entitled to $2,800 per year.

In support of the contention that the amendment of 1919 is unconstitutional as far as appellant is concerned, our attention is called to People v. Sweitser, 280 Ill. 436. In that case superior and circuit judges were elected in Cook county on June 7, 1915. On June 24, 1915, the legislature passed an act increasing the salary of the judges. The new salaries were not paid, and a mandamus proceeding was instituted to compel the payment at the increased amount. The question was as to the constitutionality of this statute increasing the salaries. It was held that the statute was constitutional in so far as it applied to judges thereafter elected, but that it was unconstitutional as to the judges who were elected on June 7, 1915; that the constitutional provision prohibiting any increase of salary of officers during their term of office applies to officers who have been elected and are sure of holding office as well as those who are in office. In other words, that the constitutional provision is applicable from the date an officer is elected notwithstanding the fact that he has not qualified and is not occupying the office; that the term of an elective office, when not fixed as to the date of its beginning and ending, begins on the date of the election, and the fact that when an officer holds over, the holding over is construed as a part of the original term, does not change the lawful term. The decision is based upon several grounds but it is there held that because of the fact that the statute increasing the salaries was passed after the election it was unconstitutional as to the judges who were elected prior to its passage.

It is contended by appellee that this decision is conclusive upon the question now before us. From a casual reading it would seem that it is conclusive of this question, but upon careful examination it will be found that there is a material distinction between that case and the facts here presented. In that case the term of the circuit judges was not fixed by the constitution, or by statute, and for that reason it was held that the term of office began on the day of the election. In this case, the statute expressly provides that the term shall begin on the first Monday of August next preceding the election, and it cannot be claimed in this case that the term of the county superintendent of schools begins on the date of his election, therefore the increase in salary in this case was not during the term of office of appellant and therefore this decision is not controlling.

The court properly sustained the demurrer to the declaration and the judgment will be affirmed.

Judgment affirmed,


text:
    Robert Corlett, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 7,651.
    1. Pleading — when defect in declaration waived by plea of general issue. Where a defendant files a plea of the general issue he will he deemed, after verdict, to have waived a contention that the declaration failed to state a cause of action, unless the declaration is so defective that it will not" sustain the judgment.
    2. Appeal and error — right to review on question of variance not raised on trial. The reviewing court will not consider a question of variance not presented to the trial court.
    3. Pleading — construction of pleading to sustain judgment. After judgment, a pleading is always construed most liberally for the purpose of sustaining the judgment.
    4. Pleading — when declaration defective in statement of cause of action cured by verdict. Even where a declaration is so defective, in substance or form, that it would have been vulnerable to attack by demurrer, yet if the issues joined were such as necessarily required, on the trial, proof of the facts so defectively set out or omitted, and with which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, a verdict, such defect is cured by the verdict.
    5. Trial — discretion of trial court as to admission on rebuttal of evidence proper to be offered in chief. Where testimony which might properly have been introduced in chief is offered in rebuttal, it is discretionary with the trial court whether such testimony shall be admitted or not, and the discretion will not be reviewed unless it has been abused.
    6. Instructions — propriety of instruction in language of statute. An instruction in the language of the statute is good if it is applicable to the facts of the case.
    7. Railroads — when instruction in language of statute as to duty of railroad to maintain crossings not erroneous in action for injury at obstructed crossing. In an action for injury to an automobile and its occupants alleged to have been due to the negligent failure of the defendant railroad company to maintain a warning barrier at a point where it had excavated across the approach to a crossing, an instruction stating the duty of railroad companies as to the maintenance of crossings, in the language of Cahill’s St. ch. 114, 87, held not erroneous as inapplicable to the facts, as negativing the right of the railroad to obstruct the crossing pending construction work, or as submitting to the jury the construction of a statute.
    8. Negligence — when modification of correct charge on contributory negligence not prejudicial. In an action for injury to an automobile and its occupants alleged due to the negligent failure of the defendant railroad company to maintain a warning barrier at a point where it had excavated across the approach to a crossing, wherein the court was requested to charge that it was the plaintiff’s duty to do certain things while driving his car in the highway, and that if the jury believed that he failed to perform such acts, and that such failure contributed to the injury, they should find the defendant not guilty, the defendant was not prejudiced by the fact that, before giving such charge, the court modified it by inserting the word “materially” before the word “contributed,” although the charge could properly have been given as asked.
    9. Railroads — propriety of refusing requested charge on contributory negligence in action for injury at railroad crossing. In an action for injury to an automobile and its occupants by running into an excavation at a railroad crossing, held that it was not error to refuse to charge, as requested, that it was admitted that the plaintiff, in approaching the crossing, did so at a speed in excess of 10 miles an hour and that under the law he was guilty of negligence, and that if the jury believed that such negligence * contributed to his injury, they should find for defendant, it not being within the province of the court to charge the jury as to what was or was not admitted or to instruct them that the plaintiff was guilty of negligence, these being questions of fact for the jury to determine.
    10. Railroads — when, refusal to direct verdict for defendant proper in action for injury at railroad- crossing. In an action for injury to an automobile and its occupants by running into an excavar tion across the approach of a crossing, alleged to have been due to the negligent failure of the defendant railroad company to maintain a warning harrier across the highway at that point, held that under the evidence it was not error to refuse to direct a verdict for the defendant, it being a question of fact for the jury whether the defendant was guilty of the negligence charged in the declaration.
    Appeal by defendant from the Circuit Court of Kankakee county; the Hon. Arthur W. DeSelm, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed June 19, 1926.
    Hunter & Minor, for appellant; John Gr. Drennan, of counsel.
    Miller & Streeter, for appellee.
   Mr. Presiding Justice Partlow

delivered the opinion of the court.

Appellee, Robert 'Corlett, recovered a judgment for $614, in the circuit court of Kankakee county against appellant, Illinois Central Railroad Company, on account of injuries to appellee and his automobile, and an appeal has been prosecuted to this court.

The scene of the accident was about one mile north of the village of Bradley. At that point the tracks of appellant extend north and south. Just, east of the tracks, and parallel with them, is the right of way and track of the Chicago & Interurban Traction Company. A public highway crossed all of these tracks at right angles. About two years prior to the accident, appellant cut down its grade at this point, and in so doing, excavated its right of way 10 or 12 feet where this public highway crossed the right of way. When the grade was cut down, the highway was closed by a wire fence east of the traction company’s right of way, and public travel turned south through a field for about 800 feet, and then went west to a grade crossing which appellant constructed across both rights of way. About a year before this accident, appellant claims it built a fence across the old highway, at the old crossing, 15 feet east of the excavation and 33 feet west of the interurban track, consisting of two panels each 16 feet long, 4 boards high, nailed to 5 posts. The wire fence east of the interurban track was then removed, and travel south through the field on the east side of the interurban track was abandoned. After this was done the highway crossed the interurban track and turned south between the track of appellant and the interurban. Appellant also claims that later a third panel was added to this fence just east of the excavation; that the highway between the tracks was graded and surfaced with cinders from the old crossing south to the new crossing; that some distance east of this crossing there was a sign with the word “Stop” upon it, but the evidence on behalf of appellee tends to show that this sign had been torn down for some time and was lying on the ground at the time of the accident.

On January 25, 1925, at about two o’clock in the morning, appellee left a dance which he had attended and started west in his automobile along this old public highway which formerly crossed the right of way. There were five persons in the automobile. Three automobiles were ahead of appellee and they turned south between the railroad tracks. It is claimed by appellant that appellee crossed the interurban track at about 20 miles per hour. Appellee did not see that the road turned south, and claims there was no barrier across the old highway just east of the excavation, and, as a result, his car went into the ditch, and he and the car were injured.

The declaration originally consisted of three counts. The court directed a verdict as to the second and third counts. The negligence alleged in the first count was that prior to January 25, 1925, appellant had excavated part of its right of way crossing the public highway to a depth of 10 feet below the surface of the highway on the east, of which appellee had no knowledge; that appellant did not maintain a barrier of any kind to prevent an automobile driven along the highway from plunging off of said highway into said excavation, and did not maintain any warning of any kind, warning people who might be driving along the public highway that there was such an excavation. The second count was based upon a violation of Cahill’s St. ch. 114, 87, and the third count charged wilful negligence.

Appellant insists that the first count did not state a cause of action; that it was not the duty of appellant to erect or maintain a barrier which would prevent an automobile from plunging off of the highway; that to prevent an automobile from plunging off of the highway would require a heavy wall that would resist a collision; that the allegation that appellant did not maintain any warning presents no issue; that in order to have presented an issue it should have alleged that defendant did not maintain an object, or some tangible thing, which would serve as a reasonable warning to travelers; that the issue presented by the plea of the general issue was, “Did appellant construct or maintain a barrier of any kind or nature at said point, and did it maintain any warning of any kind or nature, warning persons that there was such an excavation in the highway?”

By filing the general issue, appellant, after verdict, waived the right to contend that the count did not state a cause of action, unless the count was so defective that it would not sustain a judgment. Klofski v. Railroad Supply Co., 235 Ill. 146; Swift & Co. v. Rutkowski, 182 Ill. 18. The question of a variance was not raised in the trial court and therefore is not open to review upon this appeal. Carney v. Marquette Third Vein Coal Min. Co., 260 Ill. 220; Brunnworth v. Kerens-Donnewald Coal Co., 260 Ill. 202; Davis v. Illinois Collieries Co., 232 Ill. 284. If appellee proved by a preponderance of the evidence that he was in the exercise of due care, and that appellant did not maintain any warning to persons who might be driving along the public highway that there was an excavation in the public highway on the right of way, and thereby appellee and his automobile were injured, he was entitled to recover. After judgment, a pleading is always construed most liberally for the purpose of sustaining the judgment. Plew v. Board, 274 Ill. 232. Even if there was a defect in the declaration, in substance or form, which would have been fatal upon demurrer, yet if the issues joined were such as necessarily requires, on the trial, proof of the facts so defectively set out or omitted, and with which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, a verdict, such defect is cured by a verdict. Miller v. S. S. Kresge Co., 306 Ill. 104; Chicago & Grand Trunk Ry. Co. v. Spurney, 197 Ill. 471.

In the latter case it was held that an allegation that the defendant “then and there negligently failed to provide any means of warning the plaintiff when said machine was about to be put in motion” was sufficient under which to prove that the defendant did not provide any means for giving the plaintiff any such notice; that the substance or gist of the charge of negligence was that no warning was given that power was about to be applied to the machine; that there was no variance between the allegations and the proof; that the charge was broad enough to include a charge that the defendant did not provide any means of giving plaintiff notice.

The allegation of the first count of the declaration may be defective in some respects, and might be subject to a demurrer, yet, after verdict, it was sufficient to sustain the judgment.

In rebuttal appellee offered evidence tending to show that there had been a fence of three panels across the highway, but for some time before the accident the middle panel had been broken down. Appellant insists that the court erroneously admitted this evidence in rebuttal, for the reason that it proved negligence of a different kind from that alleged in the declaration, or from that shown in appellee’s case in chief; that the evidence in chief tended to prove a failure to construct or maintain a barrier of any kind, and, by his case in rebuttal, appellee attempted to show that there was a barrier across this highway but that appellant was negligent in keeping it in proper repair; that the only issue in the case was whether there was or was not a barrier or object of warning, and that appellee having alleged specifically that there was none, he should have been confined thereto in his proof; that there was no issue as to whether the fence was out of repair and appellant was not prepared to meet such an issue.

Where testimony which might properly have been introduced in chief is offered in rebuttal, it is discretionary with the trial court whether such testimony shall be admitted or not, and the discretion will not be reviewed unless it has been abused. Hartrich v. Hawes, 202 Ill. 334; First Nat. Bank of Hoopeston v. Lake Erie & W. R. Co., 174 Ill. 36.

When this evidence in rebuttal was offered by appellee, appellant objected. The court announced that while, in all probabilities, the evidence should have been introduced in chief, he would not exclude it for technical reasons because it had not been produced at the proper time, and that he would give the same opportunity to appellant to put in further evidence if it saw fit. At the close of appellee’s evidence appellant made no attempt to offer any additional evidence, and the case was closed.

The contention that appellee abandoned his case in chief, and in rebuttal offered testimony tending to prove a different cause of action, is not sustained by the evidence. Appellee, in chief, proved by four witnesses that at the time of the accident there was no barrier, and that there was no warning that the excavation was there. Appellant offered several witnesses including employees of the railroad company, a rural mail carrier, and some persons living in the neighborhood, to the effect that the fence had been built across the highway at the cut, and had remained there until the date of the accident. Appellee then offered the testimony of five witnesses who resided in the neighborhood. This evidence showed that an automobile was driven through the barrier about a month and a half before the accident, and the middle panel of the fence, about 16 feet long, had been torn away, and that from that time to the day of the accident this panel had not been replaced, and that there was no fence across the center of the roadway at the time of the accident. It was not a question as to whether or not there was a part of the fence on the north and south sides of the highway, but the question was whether there was a panel of fence across the highway so as to warn travelers from driving into the excavation. The issue being tried was not changed by the admission of this evidence and the court did not abuse its discretion in admitting it.

The only instruction given on behalf of appellee told the jury that hereafter at all railroad crossings of highways and streets the several railroad corporations of this State shall construct and maintain said crossings, and approaches thereto, within their respeetive rights of way, so that, at all times, they shall be safe as to persons and property. It is insisted by appellant that this instruction was only applicable to the second count of the declaration which was taken from the jury; that it had no application to the facts in this case; that there was not, and had not been, a railroad crossing at the point where the accident occurred for over two years; that appellant had the right, under its charter, to make this excavation and remove this crossing while the construction was going on, but the instruction negatived this idea, and told the jury, in effect, that appellant was bound at all times to maintain this crossing; that it submitted to the jury a question of law, namely, the construction of a statute.

This instruction is in the language of Cahill’s St. ch. 114, ¶ 87. An instruction in the language of the statute is good, if it is applicable to the facts in the case. Greene v. L. Fish Furniture Co., 272 Ill. 148. The evidence shows that this was a public highway across the right of way two years prior to the accident. The evidence does not show under what agreement, if any, this excavation was made, whether the public highway across the right of way was vacated or abandoned, or whether this crossing was to be reestablished after the excavation was completed. One of the objections to the instruction is that appellant had the right, under its charter, to make the excavation and vacate the crossing while the excavation was being made, but it is claimed that the instruction negatived this idea, and that it in effect told the jury that appellant was bound at all times to maintain the crossing. The instruction is not capable of this interpretation, but from this objection the inference might be drawn that the public road was not to be abandoned ‘or vacated, but was to be re-established after the excavation was complete. If the highway was not to be vacated or abandoned, then it continued to be a public highway during the time of the improvement, but was temporarily out of use. In any event, whether it was vacated permanently or not it was the duty of appellant to guard the excavation so as to protect the public from injury. Under the evidence there was no error in giving the instruction.

Complaint is made of the modification of appellant’s eighth instruction which told the jury that it was appellee’s duty while driving his automobile upon the highway to do certain things; that if the jury believed that he failed to perform such acts, and that such failure contributed to the injury, they should find the appellant not guilty. The court modified this instruction by inserting the word “materially” before the word “contributed.” We think the instruction as offered announced a correct rule of law, but we do not think the modification constituted reversible error. It has been held that slight negligence is not incompatible with due and ordinary care. Hazel v. Hoopeston-Danville Motor Bus Co., 310 Ill. 38; Chicago & E. I. R. Co. v. Randolph, 199 Ill. 126; Chicago City Ry. Co. v. Dinsmore, 162 Ill. 658; Lake Shore & M. S. R. Co. v. Hessions, 150 Ill. 546.

Appellee’s fourteenth refused instruction told the jury that, under the evidence, it was admitted that appellee, when he approached the crossing, was exceeding the rate of 10 miles per hour, and that, under the law, he was guilty of negligence, and if they believed from the evidence that such negligence contributed to the injury for which he was suing they should find appellant not guilty. This instruction was properly refused. It was not the province of the court to tell the jury what was admitted or what was not admitted, or to instruct the jury that appellee was guilty of negligence. These were questions of fact for the jury to determine. The part of the instruction with reference to the rate of speed was covered by the eighth instruction given on behalf of appellant. The fifteenth instruction was also properly refused.

It is insisted by appellant that the court was in error in not directing a verdict in this case. It appears from the evidence that appellee was driving over this road at about two o ’clock in the morning. There was some snow upon the ground. He was not familiar with the road. After he crossed the interurban track, he did not observe that the road turned to the south between the tracks. If the evidence on behalf of appellee is to he believed, the panel of fence across the highway which protected travelers from going into the ditch, was down, and there was nothing there to protect appellee from the excavation. Under this evidence it was a question of fact for the jury to say whether the appellant was guilty of the negligence charged in the declaration. The court would have invaded the province of the jury in directing a verdict, and there was no error in the ruling as made.

We find no reversible error and the judgment will be affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Matchett

text:
    A. L. Horner and Forest G. Gyles, trading as Horner-Gyles Grain Company, for use of Forest G. Gyles, Appellants, v. James E. Bennett et al., trading as James E. Bennett & Company, Appellees.
    Gen. No. 30,532.
    1. Pabteteeship — assignment of partnership demand in settlement of partner’s individual debt, without copartner’s Knowledge* or consent, as bar to action at Taw thereon in name of partnership for use of nonconsenting partner, Where one member of a partnersMp, without the knowledge or consent of the other, made a settlement with a partnership debtor whereby a partnership demand was set off against an individual obligation of such partner, the settlement was a bar to an action in the name of the partnership for the use of the nonconsenting partner, upon such partnership demand, the remedy being in equity.
    2. Partnership — interest of partner in partnership assets as assignable in settlement of partner’s individual debt without co-partner’s knowledge or consent. Under the Uniform Partnership Act, Cahill’s St. ch. 106a, the interest of a partner in the partnership assets is sufficient to support an assignment of a partnership demand in satisfaction of an individual indebtedness of such partner, although made without the knowledge or consent of his co-partners.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. Jesse Hoidom, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed June 14, 1926.
    H. M. Murray, for appellants; D. D. Donohue, of counsel.
    Moses, Kennedy, Stein & Bachrach, for appellees; Walter Bachrach and Walter H. Moses, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This was a suit in assumpsit begun on July 25, 1923, by Forest Gr. Gryles, who sued defendants, copartners, filing a declaration in assumpsit on the common counts. A bill of particulars was filed and stricken on motion of defendants.

Thereafter an amended declaration was filed in which A. L. Horner was made an additional party, and the suit was thereafter prosecuted in the name of the copartnership for the use of Forest Gr. Gryles.

An amended declaration was filed and an amended bill of particulars, from which it appears that suit was brought to recover the proceeds of five cars of corn shipped by the plaintiffs, doing business as the Horner-Gyles Grain Company, from Saybrook, Illinois, the corn being consigned to the order of the Horner-Gyles Grain Company at Chicago, with directions to notify James E. Bennett & Company.

The defendants filed a plea of the general issue, and pleaded specially that the causes of action alleged in the amended declaration did not accrue to the plaintiffs within five years before the commencement of the suit.

The plaintiffs replied to the plea of the statute that the causes of action did accrue within five years, and in further special replications averred that upon the dissolution of the partnership between plaintiffs on February 24, 1919, Horner turned over to Gyles, as copartner, what purported to be all the books and records of the copartnership, but did not turn over the account sales and other memorandum of these sales of corn, and wrongfully concealed plaintiffs’ cause of action until after the dissolution of the partnership. In another special replication, plaintiffs averred that the indebtedness for which suit was'brought was evidenced in writing.

A demurrer to the first special replication was sustained, and a demurrer to the second replication was overruled. Defendants thereupon rejoined, denying that the evidence of the supposed indebtedness sued for was in writing.

The cause was submitted upon these issues for trial before the court without a jury. The court found in favor of the defendants and entered a judgment of nil capiat and for costs which the plaintiffs seek to reverse.

The facts were stipulated and are as follows:

The plaintiffs were a copartnership composed of A. L. Horner and Forest G. Gyles, engaged in the business of buying grain from farmers and shipping it to Chicago and other places. The business was located at Saybrook, Illinois. The copartnership was dissolved on February 24, 1919, and was at that time insolvent.

The defendants at this time were, and now are, co-partners doing business as commission merchants and brokers in the purchase and sale of grain on the Chicago Board of Trade for their customers. The plaintiff copartnership of Saybrook was a regular customer of the defendants, and from time to time shipped grain consigned to the defendants at Chicago for disposition by them.

These transactions were handled on behalf of the plaintiffs, by A. L. Horner, and the method of business was that plaintiffs would ship a car of grain under billa of lading consigned to their own order and notify defendants. In most instances, drafts were attached to these bills of lading for amounts approximating the estimated net proceeds of the grain. These drafts were directed to defendants at Chicago as drawee, and were payable to the McLean County Bank of Bloomington, Illinois, or the Citizens Bank of Saybrook, .Hlinois. These bills of lading with- these drafts attached were then deposited for collection in the banks and these banks appeared as payees of the drafts. The drafts were forwarded by the banks to their correspondents in Chicago for presentation to defendants, and defendants, upon presentation,. would honor the drafts and thereby obtain possession of the bills of lading.

Defendants kept an account with plaintiffs in which were recorded the facts as to when the bills* of lading were received by the defendants and when the drafts were paid. Defendants would dispose of the grain for. the account of plaintiffs upon the Chicago Board of Trade, and thereupon credit the net proceeds of the sales to the account of plaintiffs upon the books of defendants, first deducting such items as taxes, freight, inspection, weighing, car condition, interest, car service and commissions.

Immediately upon the sale of the grain, defendants were accustomed to send to the plaintiffs at Sayhrook, Illinois, account sales for each shipment. In this account would appear the date of the sale, the number of the car, the character of the grain, the gross proceeds of the sale and the charges against the proceeds with the net amount thereof. Customarily, shortly thereafter, defendants would send to plaintiffs at Saybrook, check of defendants for the net proceeds. The only interest of defendants in said transactions was the commission, the amount of which was fixed under the rules of the Chicago Board of Trade.

A. L. Horner, one of the plaintiffs, also carried an individual personal account with the defendants, and through them, as his brokers, purchased and sold grain on the Chicago Board of Trade. This individual personal account was carried without the knowledge of Forest G. Gyles, his copartner. On September 3, 1918, the plaintiff copartnership shipped to Chicago, consigned to their own order, a carload of corn, which was in due course received by the defendants and by them sold on the Chicago Board of Trade for a gross amount which, after the deductions of expenses and commissions, left net proceeds of $1,734.69. This amount was credited by defendants to the account of the plaintiff copartnership on its books, and an account sales of said transaction was sent to plaintiffs and received by them at Saybrook, on September 21, 1918. On September 26, 1918, defendants transferred from the account of the plaintiffs to the individual account of A. L. Homer with defendants, the net proceeds of said shipment, and on that date confirmed the transfer by sending to plaintiffs at Saybrook a debit confirmation slip showing the transfer. At the same time, they confirmed to Horner individually at Saybrook the said transfer from said account of plaintiffs to his individual account. While this was done by direction of Horner to the defendants, this direction was without the knowledge or the consent of his plaintiff copartner, Forest G. Gyles. Other shipments were made on November 6, 1918, on November 12, 1918, on November 15, 1918, and on November 18, 1918, and the proceeds, by similar directions and under similar circumstances and lack of notice to Gyles, transferred to the individual account of A. L. Horner.

During this time, Gyles lived in Bloomington, Illinois, where he was engaged in another business on his own account, while Horner during the same time, lived in Saybrook and kept the books and records of the corporation. In the book kept by Horner for recording the shipment of grains, the entries were customarily made in ink, but the entries made with reference to these five cars were made in pencil by Horner and failed to show, with reference to each car, who the consignee was.

At the dissolution of the partnership on February 24, 1919, the books, papers and records of it were turned over to Gyles by Horner, and with these was turned over the book showing the records of the shipment of grains. Horner at that time, however, did not turn over to Gyles any of the account sales which he had received from defendants covering the transactions in controversy.

All of the account sales were kept in the office and on the premises of the plaintiff company at Saybrook, Illinois, by Horner, from the date of their receipt from the defendants to the date upon which the books and records were turned over to Gyles. At the request of the defendants, Horner came to Chicago shortly after February 24, 1919, and at that time left with the defendants and their attorneys, without the knowledge or consent of Gyles, the original account sales of these transactions. Gyles never saw the account sales of these cars of grain, or any memoranda relating to or concerning the same, except as the same are contained in the book kept for the purpose of recording the shipment of grain. As a matter of fact, Gyles obtained actual knowledge in February, 1920, of the fact that the cars of grain in controversy were shipped to the defendants.

The defendants, at the time of these transactions and transfers from the account of the copartnership to the individual account of Horner, pursuant to the directions of Horner, had no knowledge that these directions were given by Horner without the knowledge or consent of Gyles. It is admitted that at the time of its dissolution, the assets of the plaintiffs’ copartnership were insufficient to pay its liabilities.

The defendants submitted propositions of law, and in conformity with these, the trial judge held that no plaintiff for the purpose of recovery in a lawsuit may rescind his own act on the ground that such act was a fraud on some other person, and that it makes no difference in the application of this principle that the party who seeks to do this sues not in his own name alone but jointly and for the use of another person who is innocent of any fraud.

The court also held as a proposition of law that no action could be maintained in the names of the co-partners to recover a debt due to the firm which had been paid by set-off of the separate debt of one of the copartners with his assent and discharged by him; . that a suit to recover upon a former cause of action must be brought jointly by the copartners, and if any recovery is had, both copartners must recover.

The court further held as a proposition of law that the action of the plaintiffs was barred by the statute of limitations; that the causes of action sued upon accrued more than five years before the filing of the amended declaration of the plaintiffs on June 20,1924, and held as a proposition of law that plaintiffs could not recover in the action.

Propositions of law were submitted by the plaintiff to the effect that Horner, copartner, had no right to direct the transfer from the copartnership account to his individual account of the proceeds of the sale of the various ears of corn in question, without the knowledge or consent of his copartner; that the transfer of the copartnership fund or property by one copartner from the partnership account to the individual account of one of the copartners was beyond the scope of the co-partnership business, and that Horner had no legal right to direct the defendants to transfer from the copartnership account to his individual account, the proceeds of the sale of the various carloads of corn in question, and apply the proceeds of the corn in payment of his individual indebtedness to the defendants.

It does not appear upon what theory these propositions of law were refused, but presumably because the court did. not think these propositions of law applicable to the facts which appear in the case.

Assuming, as we do, that the plaintiff copartnership was not barred from maintaining its suit by reason of the statute of limitations (which question, in view of our conclusion on other issues, it is not necessary to decide), the controlling question in the case is whether plaintiff copartnership is precluded from maintaining this suit by reason of the fact that Horner, a necessary coplaintiff, settled the demands of plaintiffs against defendants by securing the application of the same to the discharge of individual debts due from him to the defendants. Since the action brought is one at law, the answer must be in the affirmative, and for the reason that it is well settled by the decisions of this State, of other States, and of England, that the remedy of a partner thus wronged is by a proceeding in equity, instead of a proceeding at law.

It was so held in Jones v. Yates, 9 Barn. & Cres. 532, decided by the court of King’s Bench in 1829, and this case has been followed in the later cases of Wallace v. Keesall, 7 Mees. & W. 264; Gordon v. Ellis, 7 Mann. & Gr. 607, 135 Eng. Rep. 244, and Richmond v. Heapy, 1 Stark., N. P. C. 202.

The same doctrine was announced in the case of Homer v. Wood, 11 Cush. (65 Mass.) 62, decided in 1853. It appeared in that case that the plaintiffs were copartners, doing business under the name of Homer & Company; that Homer lived in Cambridge, and the other plaintiff in Boston; that Homer was in active charge of the business of the firm, but the other partner had at all times access to the books and occasionally examined them; that the defendants were copartners in the grocery business and furnished goods from their store to Homer for family use. Homer and the defendants settled the bill by setting off the same in payment of the bill of plaintiffs against the defendants, and Homer receipted the plaintiffs’ bill in the name of the firm and gave his own note for the small balance due them after the set-off. The settlement was made by Homer without the knowledge or consent of his co-partner, who did not know until after the settlement that Homer was indebted to the defendants, and who never ratified the settlement. It was in that case agreed that the settlement was made in good faith, so far as the defendants were concerned. The court of common pleas gave judgment for the defendants, and plaintiffs appealed. The court there stated that the ease “presents the interesting and important question, never hitherto judicially determined in this commonwealth, whether the equity to which a defrauded partner is entitled under such circumstances, can be supported and worked out in a court of law. ”

The court replied that it could not be held that the action, being in form ex contractu, could be maintained; that the defrauded partner could not recover in his own name alone, but it was necessary that his partner, who had already received full accord and satisfaction for his debt, should join in prosecuting the action. In other words, the plaintiffs could have maintained their action, only by proving fraud in one of themselves, and this was held after a review of all the authorities (including Dob & Dob v. Halsey, 16 John. [N. Y.] 34, in which case the technical difficulty of supporting a joint action by plaintiff under such circumstances was not, it seems, called to the attention of the court), that the judgment of the trial court should be affirmed.

This case was followed by the courts of Massachusetts in the later case of Farley v. Lovell, 103 Mass. 387, where it was held in an action by three plaintiffs as copartners to recover for partnership goods, which after the dissolution of the firm had been delivered to the defendant by one of the plaintiffs, without the knowledge of the others, in payment of his private debt, that the action could not be maintained, although it should be made to appear that the defendant had conspired with the plaintiff to defraud the other plaintiffs.

Jones v. Yates, supra, and Homer v. Woods, supra, have been followed by the Supreme Court of this State in Church v. First Nat. Bank of Chicago, 87 Ill. 68. It appeared in that case that four plaintiffs were in partnership engaged in buying and selling seeds in Chicago, under the firm name of the “Chicago Seed Company.” The partnership deposited money in the First National Bank of Chicago, and, in the course of its business, deposited checks with it. After the fire in 1871, the business was discontinued, and one of the partners, on a check drawn by him, as superintendent of the Chicago Seed Company, drew out $1,700 of the deposit and had the sum placed to his individual credit on the books of the bank. This money he afterwards used in his private business. The partners sued the bank in assumpsit for the amount thus drawn out and appropriated and there was a judgment in favor of the defendant. The Supreme Court, through Mr. Chief Justice Scholfield, stated that the “judgment below must be affirmed, because the plaintiffs have misconceived the tribunal to which they should resort for relief.” The court further stated in substance that the payment was clearly good as against one of the plaintiffs; that he could not be heard to say that it was in fraud of the rights of his copartners, and that as to him it was complete satisfaction of the cause of action, and being complete as to him, it was in a court of law good as to his copartners; that a court of equity was alone competent to grant the relief claimed.

There is a clear distinction between a case where as here the plaintiff copartnership sued (a settlement of this sort having been made by one of the partners) and a case where the defendant in the first instance, when sued, attempts to set off an individual against a copartnership account.

The plaintiffs call our attention to the fact that by reason of the business in which they were engaged, the relationship of defendants to the plaintiff copartnership was a fiduciary one, and that by statute in this State, it is made a criminal offense for commission merchants to fail to turn over the proceeds of sales to the consignor. The degree of turpitude is not, as it seems to us in a case like this, material. The real difficulty is that one of the plaintiffs who sues has by his own action (or perhaps even by his own fraud) disabled himself as a matter of law from maintaining the suit. However, under the facts as stipulated it is not clear that there was any actual fraud in the transaction. It is not at all made to appear what the actual situation as between the partners was with reference to an accounting in connection with the partnership. Notwithstanding anything that appears in the stipulation, it may have been true that Gyles had already drawn out more than his share and that Horner equitably may have been entitled to pay his debt to defendants with the proceeds of the property sold.

As has been pointed out by the courts in the case of the death of one partner the right of action, if any, would be in the survivor, so that in such a case, if it were permissible to maintain a suit of this sort under these circumstances, it might happen that the partner who had applied the assets of the firm to his individual debts, or even one who had been guilty of the worst sort of fraud in connection with a transaction of this kind, could notwithstanding maintain a suit at law for his own benefit and recover. It is apparent that it is absolutely impossible to work out the equities of such a situation by means of a common-law action, and the courts have therefore, by the great weight of authority, decided that relief in such a case must be by appeal to a court of equity which can do entire justice in the matter. The plaintiffs therefore are not without a remedy; they have simply mistaken their remedy.

The plaintiffs, however, contend that under the Uniform Partnership Act [Cahill’s St. ch. 106a], a partner has no specific interest in partnership property; that he has merely the right to possession of the partnership property for partnership purposes; that he therefore cannot sell or assign without the consent of his copartners. Therefore it is said that the attempt of Horner to transfer to defendants an interest in the property of the plaintiff partnership was of no avail; that Horner at once became a trustee for the partnership and of the property so transferred, and that such a trust could not be destroyed by a transfer of the property to defendants.

It is said that the doctrine of the common law has no application to the case at bar, because that, while under the common law, the interest of a partner might be transferred to another under the provisions of the Uniform Partnership Act, a partner has no interest in the specific partnership property which he is able to convey. Wharf v. Wharf, 306 Ill. 79, is the only case cited, but it certainly does not sustain the contention of plaintiffs. As is stated in Morrison v. Austin State Bank, 213 Ill. 472, “the interest of the partners in the firm property is neither that of joint tenants nor of tenants in common, but is sui generis.”

In Abbott v. Anderson, 265 Ill. 290, the Supreme Court said: ‘ ‘ The theory that a partnership is a legal entity distinct from and independent of the persons composing it has never been recognized in the law of this state.” That the “entity,” as opposed to the “aggregate,” or the “mercantile” theory of partnership, has not been adopted under the Uniform Partnership Act, see 24 Yale Law Journal 617.

An examination of the Uniform Partnership Act, Smith-Hurd’s Ill. Rev. St., 1925, ch. 106½, pp. 1914-1924, fails to convince us of the merits of this contention. Section 6 [Cahill’s St. ch. 106a, [[ 6], for example, defines a partnership as “an association of two or more persons to carry on as co-owners a business for profit.” If it had been the legislative intention to adopt the theory for which plaintiffs contend, it seems hardly probable that partners would have been defined as “co-owners” of the business.

Both upon reason and authority, we think, plaintiffs have mistaken their remedy, which is in a court of equity, not in a court of law.

The judgment is affirmed.

Affirmeds

Johnston and McSurely, JJ., concur.