author: Baker, J« Separate opinion by Laoet, J„

text:
    Chicago, Burlington & Quincy Railroad Company v. Henry C. Young.

      Railroads—Collision—Action by Engineer to Recover Damages for Personal Injuries—Evidence—Res Gestas—Improper Evidence—Pleadings — Instructions—•Contributory Negligence—Speed of Train—Question for Jury—Rules of Defendant—Fellow-Servants.

    1. In action by an engineer against a railroad company to recover damages for personal injuries received in jumping from, his engine immediately before a collision, it is held: That evidence as to the character of the road at the place of the collision, its grade, the cuts through which it was constructed, the curves in the track, and the nature of the ground on each side of the road-bed, was properly admitted as part of toe res gestae; that evidence concerning the lack of air-brakes on the engine in charge of the plaintiff, and of the omission of a semaphore from the locality of the accident, for signaling trains, was improperly admitted, such evidence not being relevant to the issues presented by the pleadings; that there was no substantial error in the instructions; and that it is at least doubtful whether the plaintiff was, at the time of the accident, in the exercise of ordinary and due care.
    2. A train dispatcher or division superintendent of a railroad company, under whose orders trains are run, is not in the same line of employment as an engineer who runs a locomotive under his orders.
    3. Lacey, J., in a concurring opinion, concludes that the facts as they appear in the record do not warrant a recovery.
    [Opinion filed March 1, 1888.]
    Appeal from the Circuit Court of Kane County; the Hon-Isaac GL Wilson, Judge, presiding..
    Messrs. A. J. Hopkins, FT. J. Aldrich, F. H. Thatcher and O. F. Price, for appellant.
    Messrs. Charles Wheaton and R FT. Botseorb, for appellee.
   Baker, J«

On the 16th day of Uovember, 1888, at thirty or forty-five minutes after twelve o’clock, noon, or at some time between those times, a freight train running “ wild” from Aurora to Streator, on the Fox River branch of appelJant’s railroad, and on which appellee was engineer, ran into & regular passenger train, also en route from Aurora to Streator, hut which at the time of the collision was standing still upon the track, and the rear car of the passenger train was telescoped by the engine of the freight train, and a dozen or more passengers either killed or seriously injured, and property to the value of over $100,000 destroyed. Immediately before the collision, appellee jumped from his engine and received serious bodily injuries, for which he recovered in this suit, in the Circuit Court of Kane County, against the appellant corporation, as the result of a jury trial, damages to the amount of $7,000.

The place of the collision was just north of the twin bridges over Otter Creek, and was between Streator, the southern terminus of said branch road, and Kichards, which was over a flag station thereon, and distant about a mile and a quarter north from the scene of the disaster.

There is in the evidence legitimate ground for argument that negligence on the part of at least four different officers or employes of the company was, to some extent, involved in the unfortunate transaction.

There is testimony tending to show that Dake, the conduct- or of the construction train which was stalled on the track at Otter Creek, was guilty of negligence in taking, in disregard of directions given him by the roadmaster at Streator, about double the usual number of ear loads of slack to be unloaded near the twin bridges, thereby rendering it impossible for him to comply with the orders given him to be back at Streator by 12:30 p. m., and thus leave the railroad track clear before the schedule time of the regular passenger.train from the north. There is also ground for the claim that the conductor of the passenger train, when his train was stopped by the construction train which blocked the track, was guilty of negligence in not acting with the promptness required, both by the rules of the company and the exigences of the circumstances which surrounded him, in immediately protecting his train, and warding off the imminent danger that threatened the lives and the safety of the passengers intrusted to his safe-keeping, by sending a flagman with the danger signals to the rear of his train. There is also evidence tending to establish that appellee, who was engineer of the freight train that was running “wild” behind the passenger train and collided with it shortly after it came to a halt, was running at a much greater rate of speed than the rules and regulations of the company permitted it to run, or than, even in the absence of any such rules or regulations, was consistent with duty and common and ordinary care in view of the proximity of the passenger train and his knowledge of the character of the road there, the down grade, the cut, the reverse curve in the railroad track, and the hills on both sides of the road that obstructed the view, and was thereby guilty of contributory negligence. There is also evidence of culpable negligence on the part of the train dispatcher at Aurora. One of the rules of the company provides that when construction or other trains are working within, prescribed limits, wild and extra trains must be advised of their limits, and cautioned to keep a sharp lookout for the working trains. Another rule of the company prescribed that the superintendent, or the train dispatcher on duty, acting for and in the name of the superintendent, has full power to run any train or engine by telegraph that he may think proper. The slack train was on the track between Streator and Richards from about half past ten in the forenoon of the day in question under orders from the train dispatcher to “work between Streator and Richards until 12:30 p. m. wild.” Then orders required the train should be back in the yards at Streator within the limits fixed, that is, by half past twelve in the afternoon. The arrival of all trains at Streator is required to be registered by the conductor with the telegraph operator there, and by him forthwith telegraphed to the train dispatcher. If the slack train had arrived at 12:30, it would have been necessary to have sidetracked it at a place in the yards distant some half mile north from the telegraph office, and a considerable space of time would have intervened between the time of its arrival and the receipt by the train dispatcher of a notification thereof.

In the case under inquiry, the train dispatcher, assuming all orders had been literally obeyed and that the slack train had duly reached Streator in safety within the time limited, telegraphed to the operator at Grand Ridge, a station some five and a quarter miles north of the place where the collision occurred, “don’t hold all south bound trains for orders,” and this telegram was dated 12:30 p. m., and was delivered to appellee at Grand Ridge when he slowed up at that station, in response to a signal, at 12:32 p. m. The evidence is conclusive that neither the passenger train nor the freight train on which appellee was engineer, had any notification that a construction train was working between Streator and Richards. It is contended by appellant that as the right of the construction train to any part of the road between Richards and Streator expired at 12:30, the freight train which was running wild would not be notified of such construction train under the rule we have above referred to, because such latter train would have no right to the road at any time when the freight train would be on the road, between the stations to which the construction train was limited. It is urged that in such case as this, the train dispatcher must presume bis orders fixing limits have been obeyed, and evidence is introduced to show it would not have been good railroading to have stopped the passenger and freight trains at Grand Ridge and retained them there until the Aurora office was notified from Streator of the return of the slack train, and that a railroad can not be successfully operated in that way. This is probably so, but no good reason is perceived why the extra freights could not and should not have been notified at Grand Ridge to look out for the construction train between Richards and Streator'. We are unable to see how this would have interfered with the operators of the railroad, and it would have had the effect to put the employes on the extra train on their guard. The limits within which the construction train was working, were limits both of time and space, until 12:30 p. h., and between Richards and Streator, and it would seem the reasonable construction of the rule of the company is that all wild or extra trains should he advised of such limits before leaving the last telegraph station before reaching the prescribed limits, and cautioned to keep a sharp lookout, provided the train dispatcher has not before then been notified the train to which the limits were given had registered, or at least xvas in fact clear of the limits given, both in respect to time and space. It xvould seem that common prudence would dictate that an extra train should not have been permitted, under the circumstances of this case, to go south of Grand Ridge xvithout such notification, and that if it can properly be held the rule in question does not so require, then it must be regarded either that the. znatter of giving such notice was intrusted, without any special rule in that behalf, to the division superintendent, or to the train dispatcher, acting in his name, or that the company was guilty of negligence in not having a rule such as the exigencies of the situation demanded. The Case of the C., B. & Q. R. R. Co. v. McLallen, 81 Ill. 109, is, in its circumstances, somewhat similar to this, and is an authority that in legal principle is in point.

During the trial, the court, over the objections of appellant, permitted various xvitnessos to testify in regard to the character "of the railroad at the place of the collision, the grade of the road, the cuts through which it was constructed, number and description of the curves in the track, and the nature of the ground on each side of the road-bed, and that it was so broken and uneven as to cut off the view for any considerable distance. It is objected that there is no change in the declaration that the railroad was improperly constructed. In our opinion that fact is wholly immaterial. We think such evidence was plainly admissible as a part of the res gestee. It would be utterly impossible, properly, to understand the character of the transactions under investigation, and judge of the conduct of the several persons whose actions are supposed to have caused or contributed to the disaster, without knowledge of the matters mentioned.

Over similar objections the court allowed evidence to go to the jury that there were no air-brakes attached to the drive-wheels of the engine of the freight train; that had there been such air-brakes the train could have been stopped more easily and quickly, and that appellant had since then placed air-brakes upon freight engines. So complaint was made in the declaration that it was the duty of the company to place air-brakes upon the locomotive or that it was guilty of culpable negligence in failing so to do. Besides this, appellee was well aware when he undertook the service of driving the engine from Aurora, to Streator that there were no air-brakes attached to it. The conclusion the jury would naturally draw from this testimony is that the company was bound to furnish such air-brakes; that in not doing so it had been guilty of a breach of the duty it owed appellee, and that if these improved appliances had been furnished the collision would have either been avoided altogether, or its serious results in great part prevented. So, also, the court, over like objections, permitted appellee .to show there was no semaphore to be used to signal trains in that locality at the time of the accident, but that one had been placed there since and also to show, immediately in connection therewith, that shortly before the injury to appellee another and different accident occurred there. There was no charge in the declaration that the company was negligent in not having a semaphore at that point for the purpose of signaling approaching trains. The admission of this testimony was calculated to induce in the jury a beliéf that the omission to have a semaphore at that point, was cu1pable negligence in appellant. It is uncertain whether the verdict of the jury was predicated solely upon the charges of negligence stated in the declaration, or was based in part upon the ground the company was guilty of culpable negligence in not having provided air-brakes for the engine and in not having erected a semaphore. In view of the issue of contributory negligence which was submitted to the jury, and of the conflicting character of the testimony, the matters of the air-brakes and semaphore were of special importance. It is not unreasonable to suppose that one or both of these matters may have influenced the jury to return the verdict they did, by inducing them to believe that under all the circumstances of the case and taking1 into consideration the absence of air-brakes and semaphores, the negligence of appellant was gross and that of appellee slight, when compared together.

This evidence was of a character that threw no light upon any issue involved in the pleadings and submitted to the jury for decision, and it was calculated to prejudice appellant in the minds of the jury and distract their attention from the real issues. Our conclusion is, that it was a serious error to permit it to go to the jury.

The court properly instructed the jury in the third instruction, that a train dispatcher or division superintendent of a railroad company, under whose orders trains are run, is not in the same line of employment as an engineer who runs a locomotive over such road wiih a train attached under the orders of such train dispatcher or division superintendent.

The point is expressly so decided in C., B. & Q. R. R. Co. v. McLallen, 84 Ill. 109. We do not understand the case of C. & N. W. Ry. Co. v. Moranda, 108 Ill. 576, to he in conflict with that decision. In the latter case it was, under the evidence before the jury, legally admissible there might be a difference of opinion whether the section foreman and engineer or fireman were fellow-servants, and it was held that it should have been left to the jury to determine as a question of fact whether they were or not. But the division superintendent, or train dispatcher, who stands in his shoos and acts in his name, and has full control of the running of trains, stands in respect to the engineers and train conductors whose movements he directs and orders, as the representative of the master, and they are hound to regard and obey his commands as the commands of the master; there is no room for a difference of opinion in respect to the status of the parties. The other criticism made by appellant upon this instruction strikes us as trivial, and not requiring special notice. The fourth instruction contained the requirement of ordinary care on the part of appellee, and properly stated the doctrine of comparative negligence as it has been formulated by our courts. We find no error in the other instructions given for appellee. The three instructions given by the court of its own motion, wore in substantial conformity with the views expressed in this opinion. The only criticism we think them subject to is, that in the form in which they were given the third might possibly have been understood by the jury as dispensing with the necessity of ordinary care on the part of appellee. If properly read, in immediate connection with and as a continuation of the preceding instruction, it is unobjectionable, but to prevent all danger of misapprehension by the jury it would be well enough on another trial to modify it in the respect indicated.

We started out by suggesting that at the time the injuries of appellee were received, negligence on the part of the train dispatcher, the conductor of the passenger train, the conductor of the construction train and of appellee himself, as engineer of the extra or wild train, were all probably involved.

The negligence of the two conductors of trains was the negligence of fellow-servanfs of appellee, and appellant not chargeable therewith as between it and appellee. We have no fault to find with the finding of the jury that the train dispatcher was guilty of negligence, and that such negligence was the negligence of the railroad company. There is grave doubt from the testimony whether the company had any rule regulating the speed of wild or extra trains. There is evidence tending to show it was the usage of the company to allow such trains to run without any limitation upon their rate of speed. If the jury found there was no such rule or regulation, and that the recognized usage was as suggested, then the matter of a violation of the rales of the corporation was eliminated from the case, and it was a question of fact for the jury to determine from the evidence, whether, under all the circumstances of the particular case, appellee, in running at the rate of speed he did, was in the exercise of ordinary and due care, or, on the contrary, was guilty of negligence. The testimony was somewhat conflicting and uncertain in respect to the speed of the extra train at and immediately preceding the time of the collision. It was the province of the jury to settle the conflicts in the testimony and judge of the credibility of the several witnesses.

Were there no errors in the rulings of the court, and the issues had been fairly and fully submitted to the jury, then it would be a matter for serious consideration whether the evidence sufficiently sustained the verdict. Upon a second trial it is probable additional light may be thrown on the matter of the rules, regulations and usage of the company, and upon the questions of controverted fact. From the evidence in the present record, we much doubt the correctness of the finding that appellee was in the exercise of ordinary and due care. In our opinion the errors of the trial court in admitting in evidence the testimony it did in regard to the absence of air-brakes and a semaphore unduly influenced the jury to the detriment of appellant, and probably occasioned the verdict which was returned. For those errors the judgment is reversed, and the cause remanded for a new trial.

lievereed and remanded.

Separate opinion by Laoet, J„

I concur in the reversal of the judgment in this case, but not alone on the grounds stated in the opinion.

I am satisfied, from the facts as they appear in the record, there should he no recovery, for reasons to be stated hereafter. The points in the issue are stated in the opinion. 1st. Was the appellant guilty of the negligence charged in the declaration? 2d. Was the appellee guilty of such contributory negligence as to preclude a recovery? I will consider the latter issue first. The appellee charges in his declaration that he was, at the time of the injury, in the exercise of due care and caution for his own safety. In order to entitle him to recover, the burden of proof is on him to show that he was in the exercise of such care. I think he has clearly failed in this. The particulars in which I think he has failed are as follows: 1st. He disobeyed the rules of the company in running faster than at the rate of fifteen miles per hour under circumstances entirely unjustifiable. 2d. That such disobedience, of which he was guilty at the time the accident occurred, was negligence; that such negligent conduct clearly contributed to the accident It is insisted that there was no such rule of the appellants requiring the appellee, or any other employe, to run a wild train, as this was, at a rate of speed not to exceed fifteen miles per hour. This, I think, is clearly a misapprehension. The objection that wild trains were not classified is based on the peculiar reading of the rules printed on a card which appellee had in his possession and was running by, which classified the trains into 1st, 2d and■ 3d class, which were all regular trains, passenger and freight, and fixed by the rule, to wit, those having a fixed time table. The fifth rule thereon provided that “ all trains which are classified on the regular time table shall he known as regular trains.” “All trains not classified on the regular time table shall be known as extra or wild trains.” Again, rule six fixes the speed of trains as follows: The

“speed of second class trains, eighteen miles per hour; third class, fifteen miles per hour. When behind time, speed may be quickened, under favorable circumstances, for second class trains to twenty miles per hour; third class trains to eighteen miles per hour.”

The interpretation that all the employes of the appellant, including the appellee himself, placed on the above rules, was that wild trains come under the rule as regards speed provided for third-class trains. This they all understood to he the rule as to the speed allowmd to be made by wild trains.

And it was understood to be a violation of the rules of the company to run a wild train at a greater rate of speed than fifteen miles per hour. No less than fourteen of the present and former employes of the appellant, including the appellee himself, testified on the trial, in substance, that such was the rule as they understood it, and not a single witness contradicts it. It could make no difference whether such rule were c early expressed in the card or not if it was so interpreted by the company, or if such were the usage of the company which the appellee understood. All appellant’s servants worked by these rules as a recognized law of the company. The appellee knew that all the wild trains were governed as to speed by the speed of third-class trains; hence it would he negligence in him to run such a train at a higher rate' of speed than fifteen miles per hour. I am of the opinion that the jury had no right from the evidence to find that the wild trains were not governed as to speed by such rule or usage.

Was the appellee observing this rule when the collision occurred? I think clearly nut. The evidence seems to he nearly all against him on that subject, and scarcely any for him. He does not swear, neither was the question directly aslced him, that he was running his train within the rule of fifteen miles per hour when the accident occurred. He was asked on re-examination whether, if he had been running the train only at the rate of fifteen miles per hour coming down the grade and around the curve at the time he first saw the passenger coach, he could have stopped his train any better than he did. He answers he could not; that she would have gone in there anyway under the circumstances. The tenor and aim of his evidence was to offer excuses for running so fast; one excuse being that in going down from Paddy’s Ridge he could not shut off steam for fear of cutting the valves. It almost amounts to a direct admission that he was rdolating the rules. Heither does the firepan SAvear that he Avas not running faster than the rules allowed. When Ave consider the circumstances and the testimony of the three men living along the line of the road between the place of the accident and Grand Ridge, and Avho saw the manner in Avhich the train was running the last six miles prior to the accident, it seems to me there arises an irresistible conclusion that the train was running at least thirty miles per hour.

The passenger train from Ottawa Avas behind time and Avas running at about thirty miles per hour and the appellee’s train started out some 'five minutes behind, yet Avas gaining fast on the passenger train at Richards Station, being only SO to 100 rods behind as seen by Richards and running sorapid'y and so near to the passenger train as to attract his special attention as it did the other two farmers Avho had just previously seen it.

There Avas no necessity for running his train in this reckless manner. Ilis was a light train and could be started and stopped by him anyAvhere on the road. It needed no momentum to enable it to stand on and ascend any grade on the road. This cut and course was a place where it was especially necessary to observe caution. If there was any place on the road that required that the rule of the company as to speed should have been observed it was there. Other Avitnesses testify as to the rapid rate of speed of the train at the time of the collision. Ho witness and no important circumstances contradict the overwhelming evidence that the train was running at a rate of speed far exceeding fifteen miles per hour, at the time immediately preceding the collision. This was negligence on the part of appellee as held hy the Supreme Court in Ill. C. R. R. Co. v. Patterson, 69 Ill. 650. Can there be a doubt that such rapid rate of speed contributed to the appellee’s own injury? I think not. The evidence shows that if a train be running at a rate of speed not exceeding fifteen mi’es per hour, there is not so great a liability of injury to an engineer jumping from it, as when it runs at a higher rate of speed. Then again, the flagman would have been far enough back to give appellee warning if he had been running at less rate of speed.

The evidence shows that the flagman was on his way to flag appellee’s train after the stoppage of the passenger train and would have ample time so to do if appellee had not been wilfully violating the rules of the company. The appellee was violating another rule of the company in not keeping five minutes behind the passenger train which he must have known from the manner in which he was running, he was not doing.

The passenger train and appellee’s train were in plain sight of each other at Grand Eidge and appellee must have been apprised of its position on the track. From that station he must have run faster than the passenger train. The rule that requires wild trains and others not to start out less than five minutes behind a passenger train would require, hy fair construction, that such train should keep that far in the rear and, as appears from appellee’s testimony, he so understood it.

It is claimed that the appellant was negligent in not notifying appellee at Grand Eidge that the gravel train had not reported and was on the track and to look out for it. If the rule should be so construed as to require such notice after the gravel train had failed to report at 12:30 o’clock we must remember that was just about the time appellee arrived at Grand Eidge, not over two minutes intervening between the time the gravel train should report and the arrival of the appellee at Grand Ridge, and besides this it was the custom to put np the engine before reporting, which would occupy the two minutes. I think that prior to the time the gra\ el train was ordered to return, there was no requirement to notify appellee as his train would not go over the track where the gravel train was at work until after the time fixed for the track being clear. But, if there was negligence in this it was not wilful and the negligence of appellee would prevent recovery. There might have been negligence on the part of the conductor of the passenger train in not flagging with sufficient promptness, though this is not clear; )ret the effort to flag would have been successful in saving accident had it not been for the greater neg'igonce of appellee. This was a most terrible disaster and of all the employes of the appellant against whom negligence can be justly charged in bringing it about, it seems to me that of appellee was the most culpable. I think he may clearly trace his own misfortune to his own recklessness and his wilful disregard of the rules of the company.

I see from the evidence no habitual disregard of the rules of the company in regard to fast running that would give the appellee the right to disregard them in the manner he did. He -was not hurried for time, nor was he behind time, as he had no time, being a wild train. It was not necessary to raise a grade that he should run faster than the rules allowed. He had no excuse. Especially should appellee have been cautious in turning the™ curve and passing through the cut in question, where he could not see what was ahead of him. Instead of using caution he rushed through the cut at a high rate of speed in wilful violation of the rules of the appellant, which he acknowledges he well understood. Under the well recognized rules of the law he can not recover.

I concur with Judge Baker in remanding the cause, as well as in the reversal of the judgment.


source: Caselaw Access Project

author: Bakes, J.

license: Public Domain

text:
    Edgar G. Baum v. Charles L. Parkhurst.

      Insurance■—Renewal Receipt—Delivery—Condition—Evidence—Adm issibilify—Parol Evidence—Action by Agent to Recover Premium■—Escrow —Parties.

    1. A simple contract may be delivered as an escrow, but not directly to the promisee to be so held by him.
    2. Parol evidence is inadmissible to show that a renewal receipt or .extension of a policy of insurance absolute in terms and delivered to the insured, was merely a conditional contract.
    3. An agent of the insurance company who has countersigned such receipt to give it validity, and has himself paid the premium to the comp mv at the request of the insured, may maintain an action in his own name to recover the amount so paid.
    4. In an action by the agent of an insurance company in his own name to recover a premium claimed on account of a renewal receipt extending the defendant’s policy of insurance, it is held: That evidence to show payment of the premium to the insurance company by the plaintiff was improperly excluded; and that parol evidence to show that the delivery of the renewal receipt to the defendant was conditional, was improperly admitted.
    [Opinion filed March 20, 1888.]
    Appeal from the Circuit Court of Whiteside County; the Hon. John V. Eustace, Judge, presiding.
    Mr. J. D. Andrews, for appellant.
    Mr. F. D. Bamsay, for appellee.
   Bakes, J.

Baum, appellant here and plaintiff helow, was agent of the Plicenix Insurance Company of Brooklyn, Hew York, and Parkhurst, appellee here and defendant below, had on his property a policy of insurance in said company which expired on the 16th day of January, 1885, Some eight days prior to said date the former delivered to the latter the renewal receipt of the company countersigncd by himself as agent, acknowledging the receipt of §35 premium on §2,000 insurance under the policy and in express, terms continuing in force such policy and insurance for the period of one year and until the 16th day of January, 1886, at noon. It is a conceded fact that the §35 was not paid to the agent, or any part of it; and this suit was by appellant against appellee to recover said §35. The ease was tried in the Circuit Court before a jury, on appeal from a Justice of the Peace, and the verdict and judgment were for appellee.

Appellant tes tilled at the trial that when he handed the renewal receipt to appellee the latter said he did not have the money then, hut would send it to him within thirty days; that he told appellee that at the end of the month he would have to settle with the company and that appellee replied: 66 Well, you may settle with them and I will send yon the money or note within thirty days.” Thereupon, the court refused to permit appellant to testify that at the end of the month he had actually paid the money to the insurance company. This action of the court was clearly erroneous. The proffered evidence was competent testimony, considered in connection with that above mentioned, of money paid, laid out and expended for appellee at his request. Without such testimony, or proof of some usage or custom from which an implied request could be found, the right of recovery in this ease, if any there be, is in the insurance company and not in appellant.

If the contract evidenced by the renewal receipt was an absolute contract of insurance as between the insurance company and appellee, and the premium of §35 was paid by appellant to the company for appellee and at his request, either expressed or implied, then it would seem to follow that appellant has a just cause of action against appellee. The question, therefore, whether the contract of renewal made between the latter and the company was an absolute contract or merely a conditional contract- had a very important bearing upon the legal rights of appellant involved in this suit.

The court permitted evidence to be introduced for the purpose of showing that the renewal receipt was delivered to appellee and taken and retained by him upon the express condition that it was to extend his policy and be paid for only in case one Patrick, who was also an insurance agent, would not give appellee the same rates of insurance as those given by the Phoenix policy. The court erred in overruling the objections to the introduction of this testimony. The renewal receipt was handed to appellee and he kept it and made no offer to return it until after the commencement of this suit. The contract of renewal contained therein was absolute in its terms; and had the property thereby been destroyed by fire after the expiration of the time limited in the original policy the insurance company would have been legally liable to pay the loss thereby occasioned, notwithstanding the fact the agent had delivered the receipt without having actually received the premium. To allow appellee to show by oral testimony that the delivery of the instrument was not absolute but conditional only, was to permit him to change the terms of the written contract by parol. The conditional delivery of a deed or instrument in writing which is not to be operative or take effect as an absolute delivery until certain conditions shall be performed, is a delivery in escrow. The delivery of the renewal receipt to appellee was not in escrow, for he was a party to the contract witnessed thereby, and an escrow can be delivered only to a stranger or third person and not to a party to such contract. The receipt was not handed to appellee merely for some temporary purpose, such as an examination of its contents, for according to the theory of the evidence of appellee himself the delivery was not in furtherance of some transient and temporary end, but was conditional and to become absolute in ease Patrick would not give him the same rates of insurance. Upon the delivery and acceptance of the receipt the contract of renewal contained therein and created thereby became an absolute contract binding upon both parties and to show the obligation of the contract was to take effect conditionally only, was inconsistent itself and was changing the plain provisions of a written contract by oral testimony. Ward v. Lewis, 4 Pick. 518, 520.

So far as the instrument purported to pass a right or evidence a contract, it was conclusive upon the parties. McCrea v. Purmont, 16 Wend. 460, 473; Stone v. Duvall, 77 Ill. 475.

It is urged by appellee that the paper involved in this case was not under seal and was not a deed, and that, therefore, the law that a deed can not he delivered in escrow to a contracting party has no application here. The law of escrows is not coniined to sealed instruments. A promissory note or other simple contract in writing, as well as a deed, may he delivered as an escrow and the law of escrows is substantially the same in both cases, and such note or contract can not be delivered directly to the promisee to be held by him as an escrow. 1 Parsons on Notes and Bills, 51; Worrall v. Munn, 5 N. Y. 229, 238; Foy v. Blackstone, 31 Ill. 538; O., O. & F. R. V. R. R. Co. v. Hall, 1 Ill. App. 612.

It is also claimed by appellee that the renewal receipt in question was a receipt for money, and that parol or other extraneous evidence is admissible to explain, vary, or even contradict a receipt for money. But the writing is more than a mere receipt for money, it is the evidence of a contract and passes a substantial legal right. The rule is that an instrument in writing, so far as it transfers, vests or extinguishes any legal right or is evidence of a contract, can not be contradicted by oral testimony; but so far as it is a simple receipt acknowledging the payment of money, it is susceptible of explanation, and is liable to contradiction by witnesses. In this case the contract of renewal embodied in the writing amounts to full proof of such contract, and concludes the parties to it. At the same time, it is open to explanation in respect to the consideration clause, except that it estops the insurance company from claiming that the contract was without consideration.

It is further objected that this suit is not between the parties to the receipt; that the contract of renewal was between the insurance company and appellee,' and that the litigation is against the latter by appellant, who was a mere agent of the company, in his individual.right. We are unable to see that this circumstance makes any substantial difference in respect to the rights here in controversy. The writing, by its terms, was not to he binding upon the company until it was countersigned by appellant, and be countersigned it and delivered it to appellee, and thereby rendered himself liable to the company for the premium. If appellant, at the request of appellee, and having received a promise from him of re-payment, afterward paid the premium to the company, and if the contract of renewal was an absolute, valid and binding contract as between the company and appellee, then it would seem it should in justice be regarded as an absolute contract in a suit brought by appellant against appellee for money paid, laid out and expended for his use and at his request.

The renewal receipt was effective to keep in force the insurance of appellee in the Phcenix Insurance Company from and after the 16th day of January, 1885. On the 7th day of February following, he applied to and- obtained from Patrick insurance in another company, at the same rates asked by the Phcenix. On the 12th day of March, 1885, appellant made demand for the premium of §35, but payment of the same was refused. Two days thereafter, appellant made an alternative demand, either that the §35 should be paid, or that the renewal receipt should be returned and payment made for the time the policy had been in force, since January 16th; but appellee neglected and refused to comply with either of these requests. Appellee never returned, or offered to return, the renewal receipt to appellant, but after this suit was brought, and upon the trial before the Justice of. the Peace, he handed it to the Justice, who attached it to the papers in the case. For the errors indicated herein, the judgment is reversed and the cause remanded.

Me ver sed and remanded..


author: Bakeb, J.

text:
    Charles Kennedy et al. v. Peter S. Stout.

      Gaming Contracts—Board of Trade—Options—Action under See. 132, Criminal Code, against Brokers—Conflict of Eoidenee—Statute of Limitations—Waiver.
    1. Where a person enters into a gaming contract with a broker or commission merchant, and pays over money or property to cover losses sustained, be may maintain an, action under Sec. 132, Criminal Code, to recover the same.
    2. The right to recover depends upon the character of the contract made between the parties, without reference to the character of any contract made between the broker and a third person.
    3. The bar of the Statute of Limitations is a personal privilege of the defendant, which is waived if not interposed as a defense in the trial court.
    [Opinion filed March 20, 1888.]
    Appeal from the Circuit Court of Kane County; the Hon. Isaac G. Wilson, Judge, presiding.
    Mr. Elbert H. Gary, for appellants.
    It will probably not be seriously disputed that it is lawful for one to contract with another for the purchase and sale of any commodity to be delivered in the future; that it is not invalidated simply because, when the contract is made, the seller has not the commodity on hand, nor any means of obtaining the same; nor because the purchaser has not the means of paying for the same; nor because the contract is closed or settled before the time of delivery has arrived, by the payment of the difference in market prices between the time the contract is made and the time it is settled; nor because it is closed or settled before the time of delivery has arrived, by ringing it up with or off-setting it against another similar "transaction ; nor because the time of delivery, during some particular period, is optional.

      The affirmative of the first proposition and the negative of the others are well settled by the following cases: Pixley v. Boynton, 79 Ill. 351; Wolcott v. Heath, 78 Ill. 433; Logan v. Musick, 81 Ill. 415; Lehman v. Strasberger, 2 Wood’s C. C. 554; Hibblewhite v. McMorine, 5 M. & W. 462; Clark v. Foss, 7 Bis. 540; Rumsey v. Berry, 65 Me. 570; Smith v. Bouvier, 70 Pa. St. 375; Petrie v. Havnay, 3 T. R. 418; Owen v. Davis, 1 Bailey, 315; Porter v. Veits, 1 Bis. 177; Knight v. Fitch, 80 E. C. L. 566; Roservaine v. Billing, 109 E. C. L. 316; Miller v. Bensley, 20 Ill. App. 528.
    There is no doubt, from the evidence, that all the contracts in question made by appellants on the board were not only lawful, but were actually carried out in good faith and in a lawful manner. It is true that reports and settlements were made by them with appellee before the time of delivery arrived ; but, when the manner of doing the business is considered, this fact is unimportant. The commission merchants are the responsible persons, and the only ones recognized on the hoard. The contracts are made in their names, and they secure the same by the deposit of margins when called upon. They may settle with their customers, for whose account the contracts are made, long before the contracts mature, but they are not relieved. For instance, if the customer orders sold one day a certain commodity at a certain price, deliverable at a certain time, and the next day orders bought the same quantity of the same commodity, deliverable at the same time, but at a different price, the commission merchant may render an account to his customer at once, allowing him the profit or charging him the loss, as the case may be, and thus close accounts as between them; but the commission merchant has the contract on his hands, and must carry it out when the proper time arrives. Such a transaction in no manner violates the provisions of the statute. Ashton v. Dakin, 4 H. & N. 867.
    Even though appellee understood he was dealing in illegal contracts and intended to violate the statute, still, if he had no contract to that effect with appellants, if they intended no violation of the law and made no agreement of that kind and actually'made valid contracts, then the plaintiff would not, under any circumstances, be permitted to take advantage of his wrongful desire or intention. Sawyer v. Taggert, 14 Bush. 727; Rumsey v. Berry, 65 Me. 570; Williams v. Carr, 80 N. C. 94; Gregory v. Wendall, 39 Mich. 337; N. N. Bank v. Carr, 15 Fed. Rep. 438; McCormick v. Nichols, 19 Ill. App. 334; Miller v. Wagner, 20 Ill. App. 529.
    If the facts were in accordance with the claim of appellee, he is not entitled to recover. It is a well known rule of law that where a person has been guilty of a wrong, he can not recover upon any promise or obligation growing out of that wrong. The maxims, in pari delicto, potior est conditio possidentis^ and ex turpi causa non oritur actioi apply. Riedle v. Mulhausen, 20 Ill. App. 68; Gregory v. King, 58 Ill. 169; Thimming v. Miller, 13 Ill. App. 595; Setter v. Alvey, 15 Kas. 157; Adams v. Barrett, 5 Ga. 404; Babcock v. Thompson, 3 Pick. 446.
    Mr. Chables Wheaton, for appellee.
   Bakeb, J.

'In this ease appellee brought suit in assumpsit, under the provisions.of See. 132 of the Criminal Code (TL S. 1874), to recover $914, alleged to have been paid by him to appellants as margins on options or gambling contracts. The declaration consisted of the common counts, and the pleas were the general issue, payment and set-off. The case was tried before the court without a jury, and the results were a finding and judgment for appellee for the full amount of his claim.

The evidence was conflicting. The supposed gambling transactions were between appellee and appellants, and the latter were commission mon dealing on the Chicago Board of Trade. The testimony of appellee was to the effect there was an express understanding and agreement that he should deal in options simply, settlements to be made by the payment of differences in price, and that no contracts were to be made for actual delivery. The theory that no actual receipt or delivery of corn or grain was contemplated or intended is corroborated by numerous statements made and expressions used in tlie letters and telegrams which passed between the parties, and by the character and course of the dealings between them for a period of some three months. The testimony of appellant Kennedy was in direct contradiction of that of appellee; and both his evidence and that of the bookkeeper of appellants was that all the contracts made by appellants on behalf of appellee were for actual delivery. There was also testimony introduced before the court tending both to impeach and to sustain the character of appellee for truth and veracity. Upon the evidence as a whole the court found that the contracts made between appellants and appellee were gambling contracts and unlawful. We can not say that the evidence did not justify the conclusion reached. If a person enter into a contract with his broker or commission man which is a mere gambling contract, and pays to him money or property to cover losses sustained thereby, then such broker or commission man is a u winner ” within the meaning of Sec. 132 of the Criminal Code, and such person is given a remedy by said section of the statute against such broker or commission man for the recovery of such money dr property. The true test is the character of the contract made between the parties to tlie particular litigation under investigation. . What the nature of the contract is that the broker may have entered into with some third party, on the Board of Trade or elsewhere, is either wholly immaterial, or a mere circumstance of corroboration. This is the doctrine announced by the Supreme Court in Pearce v. Foote, 113 Ill. 228, and by this court in Carroll v. Holmes, 24 Ill. App. 453, and in Griswold v. Gregg, Son & Co., 24 Ill. App. 384. It would be useless now to review or restate the grounds of those decisions.

It is urged by appellants as a cause for reversal that the money sought to be recovered was paid to them in or prior to October, 1884, and that this suit was not brought until September, 1885, and that Sec. 132 of the Criminal Code limits the time in which the loser of money by gaming or betting may bring his action to six months, and that the legal effect of the statute is to bar the bringing of such action after the lapse of that time. Holland v. Swain, 94 Ill. 154.

The bar of a statute of limitations to a claimed indebtedness is a personal privilege that one entitled thereto may either avail himself of, or waive. In this case no plea was interposed that the cause of action was barred by limitation. Hor did appellants seek in the Circuit Court to take advantage of such a defense by demurrer, or otherwise. The record shows that they submitted to the court, and requested it to hold as the law applicable to the case, twenty-one lengthy propositions of law, covering some seven pages of the record, and yet not one word is contained therein, asking of the court any holding whatever with reference to the bar of the statute that is now claimed. It further appears from the record that said twenty-one written propositions were all the propositions of law that were offered or submitted to the trial court. Hot only, then, is it true that the record nowhere shows the defense now interposed was made below, but it affirmatively appears therefrom it was not made. Appellants must be presumed to have elected to waive any right they may have had to the bar of the statute. Parties can not avail themselves of a defense of this character without they present it in the trial court, and there insist and rely upon it. If appellants desired to set up such a defense, they should have interposed it in the court below. It is too late to introduce and urge it for the first time in an appellate court. The case of Wilson v. Van Winkle, 2 Gilm. 684, is directly in point.

We find no error in the record. The judgment is affirmed.

Judgment affirmed.


author: Baker, J.

text:
    Abraham L. Moore v. The People of the State of Illinois.

      Criminal Law—Assault and Assault and Bdttery—Indictment—Practice.

    1. No conviction can be had in a criminal prosecution for an offense which includes some ingredient which is not necessarily included in the charge set forth in the indictment.

      2. An assault and an assault and battery are separate and distinct offenses under the statutes of this State.
    3. Where the indictment does not support the verdict and the judgment, the defendant may avail himself of the objection in this court, although neither a motion for a new trial nor a motion in arrest of judgment was made in the court below.
    [Opinion filed March 20, 1888.]
    In error to the Circuit Court of Warren County; the Hon. John J. Glenn, Judge, presiding.
    Messrs. William O. Uorcross and Porter & MacDill, for p’aintiff in error.
    The indictment charges in substance “an assault” with a deadly weapon upon one P. .R. Parrish, with intent to inflict a bodily injury upon said Parrish, no considerable provocation for said assault then and there appearing, under Sec. 47, Chap. 38. Upon the trial the jury found defendant “ guilty of assault and battery on the person of P. P. Parrish,” a distinct and separate offense under See. 43 of said chapter and oho not included in the charge in the indictment. Carpenter v. People, 4 Scam. 197; Reynolds v. People, 83 Ill. 479; Young v. People, 6 Ill. App. 434; Commonwealth v. White, 110 Mass. 407; State v. Myers, 19 Iowa, 517; People v. Keefer, 18 Cal. 636.
    “The rule is, where an error appeal's in the record proper as made up by the clerk, no exception to the judgment of the court is necessary.” Randolph v. Emerick, 13 Ill. 344; Wiggins Ferry Co. v. People, 101 Ill. 446; Baker v. People, 105 Ill. 452; People v. Dragstran, 100 Ill. 286; Van Dusen v. Pomeroy, 24 Ill. 289.
    Messrs. John W. Matthews, State’s Attorney, and R. JGrier, for defendant in error.
    The point made by plaintiff in error should have been raised in the court below upon motion for new trial or in arrest of judgment. There is nothing in the record here, in absence of a hill of exceptions, to show such motions. I. C. R. R. Co. v. Palmer, 24 Ill. 43; Gill v. People, 42 Ill. 322; Graham v. People, 115 Ill. 566; James v. Dexter, 113 Ill. 654.
    There being no bill of exceptions every legal presumption will be indulged in favor of the judgment of the court below. Wilson v. McDowell, 65 Ill. 522; Brown v. Clement, 68 Ill. 192; Noy v. Creed, 1 Ill. App. 557.
    This court, in the absence of anything in the record to show to the contrary, may presume that a verdict for assault and battery, a less offense than that charged in the indictment, ■ was taken by consent of defendant—an agreed verdict—to avoid the heavier punishment for the greater offense. Gardner v. Russell, 78 Ill. 292; Cochlin v. People, 93 Ill. 410.
   Baker, J.

Abraham L. Moore, plaintiff in error, was indicted, tried and convicted in the Warren Circuit Court, and judgment was rendered against him for a fine of §50 and costs. The indictment upon which he was tried, charged that he, “ with a certain deadly weapon, to wit, a whip, which he, the said Abraham L. Moore, then and there held in his hand and hands, unlawfully, wilfully and maliciously did make an assault upon one P. R. Parrish, with intent then and there unlawfully and wilfully to inflict upon the person of said P. R. Pan'ish a bodily injury, no considerable provocation for said assault then and there appearing.” The jury returned a verdict finding him “ guilty of an assault and battery on the person of P. R. Parrish,” and the judgment of the court was entered upon such verdict.

The rule of law is, that where a defendant is put upon his trial for a crime which included an offense of an inferior degree, the jury may acquit of the higher offense charged, and convict of the lesser, although there may be no count in the indictment specifically charging that particular offense; but no conviction can be had for an offense which includes some ingredient which is not necessarily included in the charge set forth in the indictment. Carpenter v. The People, 4 Scam. 197; Beckwith v. The People, 26 Ill. 500; Young v. The People, 6 Ill. App. 434. In this case, the indictment was for an assault with a deadly weapon with intent to do a bodily injury, and no actual bodily injury or battery was charged therein; and the verdict found the defendant guilty of the offense of an assault and battery, and the judgment of the court was for the commission of that offense. An assault and assault and battery are separate and distinct offenses under our statute. See Secs. 20 and 21 of-the Criminal Code. An assault with a deadly weapon with an intent to inflict a bodily, injury may be committed either with or without an actual battery; and, as we have seen, no battery is alleged in the present indictment. It follows from what has been said that the indictment did not necessarily include in its pterins the offense of which plaintiff in error was convicted.

There was no necessity in this case that either a motion for a new trial or motion in arrest of judgment should have been made in the court below, and preserved in a bill of exceptions. The error here is patent and manifest upon the face of the record proper, as certified by the circuit clerk. The indictment which was returned by the grand jury does not support the verdict of the petit jury and the judgment of the court. The case is not different, in legal principle, from what it would have been, had the petit jury in this trial upon an indictment for an assault with a deadly weapon returned into court a verdict finding plaintiff in error guilty of larceny, and the court had rendered judgment thereon. Where an indictment or declaration is wholly insufficient to sustain the judgment which is rendered by the court, such ground of objection may be availed of on writ of error, notwithstanding no motion in arrest of judgment was interposed in the lower court. The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Canton Masonic Mutual Benevolent Society v. Charles W. Rockhold.

      Life Insurance—Mutual Benefit Societies—Members Can Not Receive Benefits—Illegal Contract.

    1. A member of an association or society organized under the amendatory and last clause of Sec. 31, Chap. 32, R. S., to benefit the wives, orphans, heirs and devisees of its deceased members, can not receive any money as profit or otherwise from such association or society.
    2. A contract between such a society and a member for the payment of a certain sum of money to him upon his arriving at the age of seventy years, is void.
    3. An agreement to do a thing contrary to law can not be enforced by either party against the other.
    [Opinion filed March 20, 1888.]
    Appeal from the Circuit Court of Peoria County; the Hon. T. M. Shaw, Judge, presiding.
    This was an agreed case submitted to the Circuit Court of Peoria County, at its May term, 1887. That court found the law of the case to be with Charles W. ¡Rockhold, the plaintiff below, and that the defendant society was indebted to him in the sum of §1,836, and thereupon rendered judgment in accordance with such findings and for costs, and awarded execution.
    The agreed case upon which the controversy was submitted, consisted of the following facts and points of law, to wit:
    First. That said defendant is a corporation, organized under the laws of the State of Illinois relating to corporations, not for pecuniary profit and not an insurance company, as defined by the statute under which the said company was organized, its object being to give financial aid and benefit to the widows, orphans and heirs or devisees of deceased members, as set forth in the certificate of organization issued by the Secretary of State, with the accompanying statement of the particular business and objects for which it was formed, said certificate being dated March 30, 1874, and on the 9th day of April, 1874, adopted a constitution and by-laws, and said defendant corporation commenced to do business and continued up to the present time.
    Second. That the constitution of said corporation contained in Art. 7, Sec. 1: That the board of directors shall pay to the members holding certificates a sum equal to one dollar ($1.00) for every member of the division to which he shall belong, upon such surviving member arriving at the age of seventy years, or after he shall have been a member for twenty-five consecutive years; and that Art. 6, Sec. 1, of the by-laws of said defendant corporation requires the board of directors of said corporation to furnish all members of said society with a certificate containing the agreement on the part of the society and its members.
    Third. „That, to wit, on the 24th day of May, A. D. 1875; the plaintiff became a member, and a certificate of membership in said society was issued to the said plaintiff, containing the provisions of said Art. 7 of the constitution of said society, to pay a benefit to said plaintiff on his arriving at the age of seventy years.
    Fourth. That said plaintiff has, since the time of receiving said certificate, paid all assessments, Mos. 1 to 51 inclusive, such assessments amounting in the aggregate to $165.60, the same being all assessments for which said plaintiff was liable by virtue of holding said certificate, and being a member of said society. But in no case has said defendant corporation exercised the power of paying or collecting benefits to be paid to living members of said society, and in no case has the plaintiff been required by said society to pay any such assessments, the defendant believing it had no power to make any such assessments.
    Fifth. Said plaintiff, to wit, on the 25th day of December^ A. .D. 1886, arrived at the age of seventy years, and that thereupon he served notice upon said corporation defendant, making proof that he had arrived at the age of seventy years, and demanded that he be paid the amount due him by the terms of his certificate. Ho objection has been made to said notice.
    That Division A, of which he was a member, then contained 1,836 members; but only 597 members of Division A held certificates containing said clause, to pay benefits to living members, and 1,239 of said members of Division A held certificates in which only benefits were to be paid to the widows, orphans and heirs or devisees of said deceased member.
    And that said president and said officers of said society, or its board of directors, have neglected and refused, and now neglect and refuse to make such assessment, or to pay said sum equal to the members in said Division A, as aforesaid, or any part thereof.
    Sixth. That after notice by the Auditor of the State of Illinois, as set forth in See. 7 of this agreement, the secretary of said defendant corporation, by order of the board of directors, issued and gave notice to each member of said society, that the issuing of certificates containing the endowment clause, to pay benefits to living members, would be discontinued and the same stricken out. That at the annual meeting of said society held April 4, 1883, a resolution was offered in writing that the constitution of said society be so amended that Arts. 1 to 11 be thereafter known as by-laws, and not a part of the constitution.
    That at the annual meeting of said society held April 2, 1884, the said resolution was referred to a committee of said members to report at the next annual meeting.
    And at the next annual meeting of said society held April 1, 1885, said committee reported to amend said resolution, and by the unanimous vote of said society, voting upon that question, said amendment was adopted, and that said Arts. 6 and 7 of the constitution were abolished, and the same became a bylaw of said society.
    That the hoard of directors of said society, at a regular meeting of said board, held on the 21st day of April, A. D. 1885, appointed a committee to revise the by-laws of said society, who reported at the same meeting of said board an amendment to the by-laws of said society (whereby all parts of Arts. 6 and 1 of the by-laws of said society, which paid benefits to living members of said society, now numbered 3 and 4 of the by-laws of said society, were stricken out and abolished), which report was adopted with other amendments made to said by-laws, and the secretary of said board of directors was ordered to have published such amendment as well as other amendments made to said constitution and by-laws and mailed to each member of said society, of which this plaintiff was a member, but said plaintiff has never acquiesced in the validity of the action of said board of directors.
    Seventh. The Auditor oof the State of Illinois, and ex officio Insurance Commissioner of said State, notified the officers of the defendant corporation to cease issuing certificates containing provisions to pay to living members of said society, and that he, as well as the Attorney General of said State of Illinois, stated and so informed the officers of the society, that if they or the said society attempted to carry out the provision of said certificate, paying living members of said society, they would take steps to arrest and cancel the charter of said society, and prosecute said officers for a violation of law governing such corporations.
    Eighth. That said plaintiff was present at the annual meeting, mentioned as being held April 4,1883, in paragraph sixth hereof, at the time said amendments were made in its constitution and by-laws as aforesaid, and objected to having such amendments so made, and has ever since objected to the action of said society, and of its board of directors, in that regard.
    That in consequence of said notice of said Auditor and said Attorney General, as aforesaid, to-wit, on the 21st day of November, A. D. 1881, said society made said change in the form of certificates issued by said society.
    That after the aforesaid action of said society, and of the said board of directors, in regard to the amendments to said constitution and by-laws, and the issuing of amended form of certificate, the plaintiff has continued to pay assessments that have been since then made, with other members who have held the amended form of certificate.
    It is further agreed that the court is to construe the exhibits hereto, and the proceedings of the defendant herein set forth, according to their legal effect, notwithstanding any language herein contained which might deem to give construction to the same by agreement or acquiescence.
    That the said parties to this agreement submit the following points of law at issue between them on the foregoing statement of facts. The said plaintiff maintains the law to be as follows!
    I. The constitution of said defendant constitutes a contract with the plaintiff; that the same is within the legislative power of the defendant, and upon the reception of the said plaintiff as a member of said association, and upon his paying the assessments made upon him until he became seventy years of age, as shown by the agreed state of facts, the defendant became liable to pay him the sum of one dollar for each member of the class to which he belonged, to-wit, §1,836, within sixty days after proof of his having arrived at that age.
    II. Although the said provision in said defendant’s constitution may not be strictly within the scope of defendant’s powers as a corporation, yet, after receiving plaintiff’s money on assessments made by defendant until the time when the money therein mentioned became due and payable, defendant can not now set up in its defense a want of power to make and enter into said contract.
    III. The certificate of membership issued by said defendant to said plaintiff is conclusive evidence of the existence of a contract between plaintiff and defendant, as provided in the defendant’s constitution and by-laws, at the time said certificate was issued, and so long as plaintiff continued to comply with all the conditions of his membership.
    IV. " The said certificate of membership is of itself a valid contract between the plaintiff and defendant, which, upon plaintiff’s complying with all the conditions therein expressed, entitles him to receive from defendant the sum of one dollar for each member of the class to which lie belonged, to-wit. $1,836, sixty days after making proof of liis having arrived at the age of seventy years, which has been done.
    V. The proofs having been made, as set out in the agreed state of facts, and no objection having been made to their sufficiency before the expiration of sixty days thereafter, it is now too ]ate to raise any question as to their sufficiency.
    VI. Plaintiff’s right of recovery does not depend upon the defendant’s ability to collect the assessment provided for in the constitution; for,
    1. The contract is to pay one dollar for each member of Division A, which payment is not made to depend upon the collection of that or any other gum from such members.
    2. Each member is assessed a certain sum upon every death, or upon the members arriving at the age of seventy years, etc., of which sum a portion, together with admission fees, is, by Art. VIII, set apart as a permanent fund to be paid to beneficiaries before assessments are collected from survivors, and to make up deficits in assessments.
    3. If there is a want of power to make and collect the assessments, it only goes to the power of plaintiff to enforce the collection of his judgment, but does not affect his right of recovery.
    4. The converse of defendant’s claim is the law. If there is a legal liability, the right to make and collect the assessments follows, of course.
    5. If the contract originally was valid, defendant could not of its own motion destroy the contract by putting it out of its power to provide for its payment by making assessments.
    VII. If it were true that, by issuing the certificate of membership to plaintiff, and others of like tenor, defendant had undertaken the business of life insurance, in violation of law, yet that would not deprive plaintiff of his right of recovery against defendant. The law in regard to life insurance does not render such contracts void.
    VIII. The defendant did not amend its constitution and by-laws, in respect to the subject-matter of the contract between plaintiff and defendant, at any time before he had arrived at the age of seventy years; because

      1. The action of the association at its meeting April 1. 1885, simply transferred certain sections of the constitution to, and made them a part of the by-laws. They still retain their status as part of said contract.
    2. When so transferred to the by-laws, they could not he amended until the expiration of one month from the time when the proposed amendment had been submitted in writing to a meeting of the board of directors.
    3. The said sections of the constitution became a part of the by-laws on the first day of April, A. D. 1885; the alleged amendments were made April 21st, A. D. 1885, less than one month from the time when the same came under the jurisdiction of the board.
    IX. But even if the constitution and by-laws of defendant liad been changed by the action of the association or its board of directors, yet, without the consent of plaintiff, such change could not abrogate the contract between him and defendant.
    X. The provisions of the constitution and by-laws of defendant having suffered no change, except a transfer of certain sections from the former to the latter, the standing of plaintiff in the association is the same it has been from the beginning; and inasmuch as the constitution and by-laws, and not the certificate of membership, fix the status of membership, all new members admitted to the class to which plaintiff belongs occupy the same footing with him. The new form of certificate, issued after the controversy with the Auditor, being inconsistent and in conflict with the provisions of the constitution and by-laws, can not deprive plaintiff of any of his rights, nor can it exempt such new members from assessments to pay plaintiff’s claim, and they are bound by the provisions of the constitution and by-laws until lawfully changed, repealed or abolished, notwithstanding the form of their certificate.
    XI. While it may be true that defendant, at the time of plaintiff’s becoming a member thereof, was not an insurance company, as defined by Sec. 31, Chap. 32, B. S., it is equally true it was not a life insurance company so as to bring it within the provisions, or subject it to the penalties of the Act of March 21, 1869, entitled “An act to organize and regulate the business of life insurance ” still in force. Nor is it a company organized under the Act of Jnne 18, 1883, in regard to mutual benefit associations. Its purpose was a lawful one, and its constitution and by-laws contravened no law or constitution of this State or of the United States. Its general purpose is declared in its application for license. The method of ac-co'mplishing that purpose is set forth in the constitution and by-laws. It is not foreign to that purpose to make the benefit payable to the member himself when he shall have arrived at the age of seventy years. The action of the Auditor was therefore uncalled for and unauthorized by law.
    XII. The fact that defendant has never exercised the power of paying or collecting assessments to be paid to living members is of no force, from the fact that none have ever been called for, as appears in proof.
    XIII. The fact that plaintiff has continued to pay his assessments since notified of the action of the society, or its board of trustees, in regard to the alleged changes in the constitution and by-laws, can work him no harm. Defendant continued to assess him. He was bound to pay the assessments in order to preserve his membership, for the benefit of his wife and children, in ease he should die before arriving at seventy years of age. "
    That the said parties to this agreement would submit the following points of law at issue betvzeen them on the foregoing facts, on the part of the defendant corporation.
    That the certificate of membership and the agreement contained therein, so far as the same provides for the payment of any sum to the holder, or member of said society, when he shall arrive at the age of seventy years, or after he shall have been a member for twenty-five consecutive years, is void, of no effect, and can not be enforced against this defendant corporation for the following reasons:
    I. That the said corporation, as shown by exhibit A, issued by the Secretary of State, possesses only the power to pay benefits to, and give financial aid to the widows, orphans and heirs or devisees of deceased members, and no other objects.
    II. That the board of directors in making such contracts exceeded their power and duties, and could not hy such act bind the defendant, of which extent of their power the plaintiff was bound to take notice.
    III. That should the present board of directors attempt to make an assessment to pay said plaintiff his claim, it would be in violation of law and would subject them to punishment under the law, and would afford ground for proceeding to cancel and annul their chartered rights.
    IY. That said defendant corporation, before said plaintiff had arrived at the age of seventy years, had taken the nee'essary steps and had fully amended their constitution and by-laws so as to strike out all that part of the same which required assessments to be made and paid, as claimed by plaintiff, of which he had notice.
    Y. That any rights which the plaintiff might have (if any) would he against the board of directors and officers who issued such certificates exceeding their powers, and not against the defendant corporation, and this defendant is not estopped from setting up such want of authority exercised by its officers.
    YI. That the present board of directors, or the officers of this association, can in no case be required to carry into effect an illegal contract made by their predecessors in office, more especially when by so doing they would subject themselves to penalties for a violation of Jaw.
    YIL That this is a corporation in which all its officers and members are governed and controlled by its constitution and by-laws, and such changes and amendments as may he made in them from time to time; and that the certificate of the plaintiff was received hy him subject to such changes as might be made to the same, or it was affected by any such change so made.
    YIII. That the amendments made in the constitution of the defendant corporation took from its officers and board of directors the power to make such assessments as demanded by plaintiff, and in that regard changed the certificate of the plaintiff; that ho, the plaintiff, was as well hound hy such action as the society or its officers.
    IX. That in the form of action brought by the plaintiff in this cause, the court possesses no power by which it can authorize said defendant corporation or its officers to make any assessment upon its members to pay plaintiff’s claim, nor does said court possess the power to compel members of the division which plaintiff is in, to pay such assessments to said defendant, or its officers, that they might comply with an order of the court, should such be made.
    X. That only 597 members of said Division A, of which the plaintiff was a member, had or held certificates containing the clause upon which the plaintiff claims at the time he arrived at the age of seventy years, and all others of said Division' A are in no wise a party to such contract, or in any degree hound thereby, and never wer'e.
    XL That under the law, the carrying the risk by the defendant corporation, of the plaintiff, has been á sufficient consideration for all assessments by him paid, and should he continue to pay assessments until his death, the defendant will be liable to pay plaintiff’s heirs and executors the amount to which his legal representatives will be entitled, under the said certificate at the time of plaintiff’s death.
    Messrs. Abbott & Benson, for appellant.
    There can be no question that, in making the certificate to appellee to pay him bmefits during his lifetime, appellant ex-ceéded its power, under its license and under the law, and it may plead this want of power. Dartmouth College v. Woodman, 4 Wheat. 518; Hood v. H. Y. & N. H. R. R., 22 Conn. 502; 1 Parsons on Contracts, p. 141; Green’s Brice’s Ultra Vires, 744; Bradley v. Ballard, 55 Ill. 413.
    The court makes this restriction to the plea of ultra vires. When such corporation deals with a stranger, who had no knowledge of its power, or when a corporation gets money and refuses to return it, or when the contract is completely executed and all rights are lost, unless such contract is carried into effect and no other rights exist, then they say it is carrying the doctrine of ultra vires too far, or, where it would be an act of dishonesty, then such corporation would be estopped from setting up such plea. 8 Ill. App. 350; Brown v. Mortgage Co., 110 Ill. 235; Darst v. Gale, 83 Ill. 138.

      Appellee being a member of said society is charged with full knowledge and notice of all the powers of appellant, and of its want of power to pay benefits to living members. Brandt v. Fulton Bank, 3 Wend. 583; Mutual Benefit Ass’n v. Hoyt, 46 Mich. 473.
    The last ease cited fully supports our view that this certificate so far as it requires the payment to appellee while living, is void, and contrary to public policy.
    Messrs. McCulloch & McCulloch, for appellee.
    The statute under which appellant is organized does not require payment of the money to the beneficiaries therein named. It does not point out the channels through which the intended benefit shall reach them. Ho reason is perceived why, that benefit may not be made as effectual by lifting a present burden from their shoulders, in the lifetime of an aged member, as by compensating them after his death.
    Our Supreme Court has gone much further than this in holding that, under a provision in favor of legatees, the member may, by a provision in the certificate of membership, have it made payable to a total stranger. Bloomington Mut. Ben. Ass’n v. Blue, 120 Ill. 121.
    The statutes show that it was the legislative intent to exclude from the operation of the insurance laws all corporations operating under the assessment plan, where there was neither capital stock, dividends of profits nor any other payment of'money by way of profits. It does not follow that because certain characteristics are enumerated, that all companies not possessing the same are necessarily insurance companies within the meaning of the statute.
    A.t the time of the enactment of this statute, there were probably in existence certain voluntary associations for mutual benefit, having the characteristics therein mentioned, and it being doubtful whether or not they might come under the exception relating to insurance, they were specifically excluded from the exception. It does not follow, however, that because they were specifically excepted, others of a like character, but not coming exactly within that definition, were to be treated as insurance companies. The whole tenor of our legislation upon that subject seems to point to the intention to treat all these mutual benefit assessment associations as not coming within the insurance exception. If there could have been any doubt as to the construction of the Act of 1872, all room for such doubt was effectually swept away by the Act of 1883.
   Bakeb, J.

The act approved March 26, 1869, in relation to life insurance companies, provides that before any life insurance company goes into operation under the laws of this State, a guarantee capital of at least $100,000 shall be paid in money and invested in such stocks and securities as are required by said act, and that until the Auditor of Public Accounts shall examine the capital and give a certificate authorizing such company to issue policies, no policy shall be issued. It is a part of the agreed case that the appellant corporation is not an insurance company, as defined by the statute, but that it is a corporation organized under the laws of the State relating to corporations not for pecuniary profit, its object being to give financial aid and benefit to the widows, orphans and heirs or devisees of deceased members. It appears from “Exhibit A,” which is expressly made a part of the agreed case, that the certificate which was filed by the proposed incorporators in the office of the Secretary of State, on the 30th day of March, 1874, stated that the business and object of the society, which was to be known as the “ Canton Masonic Mutual Benevolent Society,” should be to give financial aid and benefit to the widows, orphans and heirs or devisees of deceased members. It also appears from said exhibit that the certificate of the Secretary of State declaring the legal organization of the society was based upon the certificate of the incorporators, so filed, and upon the provisions of the act concerning corporations, approved April 18, 1872, and in force July 1, 1872. Prior to the date of the certificate of the incorporators and its filing, Sec. 31 of the said act concerning corporations was amended by an act approved March 28, 1874, and in force, under an emergency clause, from and after March 28, 1874. The amendment so made provided that, “ associations and societies which are intended to benefit the widows, orphans, heirs and devisees of deceased members thereof, and where no annual dues or premiums are required, and where the members shall receive no money as profit or otherwise, shall not be deemed insurance companies.” It is manifest that the society in question is organized under the provisions of this amendatory act and as a society not for the pecuniary profit of its members. In Commercial League v. The People, 90 Ill. 166, it is held that an association organized under said amendatory clause is not a life insurance company within the meaning of the statute relating to life insurance companies.

In respect to associations and societies, whose charter is the amendatory and last clause of Sec. 31, Chap. 32 of the ¡Revised Statutes of 1874, the language of the clause is mandatory, that “ the members shall receive no money, as profit or otherwise.” In Commercial League v. The People, supra, it is held the word “ profit ” means the gain made upon any business or investment. If appellee, as a member of the appellant society, has invested in and paid to the association the sum of §165, and is entitled to receive and recover from it the sum of §1,836, in consideration of such investment, then it would seem necessarily to follow that he, as such member, is allowed to receive money as a profit upon his investment.

It must be considered that the clause of the statute under consideration absolutely prohibits the members of societies organized under said clause from receiving money or profits from the association. The corporators elected to avail themselves of the privilege given them by the statute of forming themselves into a society not for pecuniary profit to themselves, and were by the State, upon that consideration, freed-from the heavy burdens imposed by law upon life insurance companies. To permit the society to contract to pay to one of its members upon his arriving at seventy years of age, or after he has been a member in good standing for twenty-five consecutive years, a sum of money as profits upon his investments in the society, would be in fraud of the charter upon which it depends for existence, would virtually nullify and abrogate the wholesome statutes enacted for the purpose of regulating the business of life insurance companies, would set at naught the legislative intent, and be in conflict with the public policy of the State. Appellee is not a stranger to the corporation, but is himself a member of the society, and as such is chargeable with full knowledge and notice of its charter powers and of the requirements and prohibitions of the statute under which it is organized.

The general rule is that an agreement to do'a thing contrary to law or public policy can be enforced by neither party against the other. When a statute forbids a particular business generally, or to certain corporations, then any contract made in such business in violation of the statute or by a corporation prohibited therefrom is void. 2 Parsons on Cont. 186; Bishop on Cont. (Enlarged Ed.), Secs. 547, 549 and 627. In Penn v. Bornman, 102 Ill. 523, the provision in the bank charter was that “no director of said corporation shall be indebted to said corporation, either directly or indirectly, or individually, at any time, to an amount greater than seventy-five per centum of the capital stock held by such director, in good faith as his own,” and it was held that a director could not enter into a valid contract with the bank, as guarantor or indorser, without regard to his ownership of stock and in violation of such provision, and that no recovery could be had by the bank under such a contract against him of his estate; and it was further held that the prohibition of the charter applied to the bank as well as to the directors. See also, the numerous authorities cited in the opinion of the court in Penn v. Bornman.

In the case just cited, the court said, in substance, that they •found no evidence of overreaching, fraud or bad faith on the part of Bornman, but only found the simple fact that he, like the bank, was a party to an agreement prohibited by its charter; and that if this of itself affords matter of estoppel against the defense of illegality in the contract, then it is manifest such a defense could not successfully be interposed in any case where the agreement is simply prohibited by statute, and that to so hold would, under the pretense of construction, he, in effect, abrogating the provisions of the charter by judicial legislation. These remarks seem to apply, with equal or greater force, to the case we now have in hand.

The provisions of the Acts of May 22, 1883, and June 18, 1883, have no bearing upon the present controversy. Those acts have reference only to contracts for indemnity against accident or permanent disability. The contract here involved is not for indemnity against either accident or permanent disability, and there is nothing in the case to either indicate or suggest that appellee has either met with an accident or is suffering from a permanent disability.

The present case is not governed by and is easily distinguished from the case of Benefit Association v. Blue, 120 Ill. 121, relied upon by appellee. There, the statute did not forbid the contract which was then under consideration; here, the statute does forbid the contract now in question. There the court said: “It is contended that all persons not named in the act are prohibited from becoming beneficiaries. It will be observed that the contract involved is not absolutely prohibited by statute. All that can properly be claimed is, that it was not expressly authorized by the statute.” Here, the charter of the appellant society contains an absolute prohibition against the character of benefits sought to be recovered, and the language of the statute is “the members shall receive no money, as profit or otherwise.”

In our opinion, the members of the Canton Masonic Mutual Benevolent Society, as well as the society itself, were bound to know that a contract, such as that here in suit, was invalid so far as it provided for the payment of a sum or sums of money to a member of the association upon his arrival at the age of seventy years, or after he had been a member in good standing for twenty-five consecutive years, and was binding only in respect to the benefits secured thereby to the widow, orphans, heirs and devisees of such member, or other person entitled thereto after his decease.

Our conclusion is, that the judgment of the Circuit Court was erroneous, and it is reversed.

Judgment reversed..


author: Lacey, J.

text:
    Frances M. Doyle v. E. Sanford et al.

      Mortgages—BUI to Redeem—Second Appeal—Usury—Tender—Res Adjudicate.
    Upon a second appeal in a proceeding to redeem certain mortgaged premises, it is held: That the complainant, having been defeated on the claim of usury, can not now rely upon the claim of tender, the two being inconsistent; and that the claim of tender and the defendant’s claim for attorney’s fees are res adjudícala.

    [Opinion filed March 20, 1888.]
    Appeal from the Circuit Court of Iroquois County; the Hon. Alfred Sample, Judge, presiding.
    This was a bill filed by appellant against appellees, seeking to redeem real estate from a mortgage held by appellees, or one of them. John T. Martin was the original owner of the land in question and, on July 10, 1875, borrowed from E. Sanford §300 for five years at ten per cent, interest per annum, payable semi-annually at the Chemical National Bank of New York, in the State of New York. The said Martin executed to said Sanford a mortgage on the said land to secure said note and also ten per cent, attorney’s fees in case the mortgage was not paid at maturity. The said Martin sold and conveyed the said land to one Hurlburt, who conveyed the same to complainant, January 20, 1880. The bill relied on two points for relief, aside from the right to redeem. 1st. In order to avoid costs and interests the tender of §346.50 at the said bank as well as to Sanford, that sum being the amount of the principal sum, together with interest at ten per cent, at the date of the supposed tender, but claims that the amount was refused, the holder of the note demanding the ten per cent attorney’s fees.

      The appellant claimed in the bill, and still claims, that she kept the tender good by an offer to bring it into court and pay it over at any time. The second contention made by the complainant was that there was usury in the inception of the contract, and she sought to avoid the payment of all interest except six per cent., and to have all payments On interest applied in discharge of the note, pro tanto. The cause was tried in the court below, and resulted in the court deciding that the claim of usury was made out, and deciding that only interest at the rate of six per cent, could be allowed, and rendering decree for appellees for the amount of the note and six per cent, interest on that basis. From this decree the appellees appealed the cause to this court. Upon a hearing herein the court held that the court below- erred in allowing usury in favor of the appellant, she being a purchaser of the land in such manner as to charge her with the payment of the note and interest as given, and remanded the cause to the court below, with directions to that court to fix a day upon which appellant should bring into court the amount due upon the mortgage according to its terms, reckoning interest to the day fixed for payment; also that the appellant herein, appellee then, should pay the costs, and that in default of the payment of the amoxmt so foxind due after allowing just credits, that the bill be dismissed at the appellant’s (Doyle’s) costs. The case will be found reported in 16 Ill. App. 508.
    The cause has been again tried and the court below rendered a decree in favor of appellant in conformity with the direction of this court. The appellant brings the case here and asks a reversal on the' following groxxnds, to wit: The
    court below- erred in not finding and holding that there had been a tender of the full amount of the note and interest at the time it fell due to the holder thereof, and in not decreeing costs against appellees, and in not disallowing interest from date of tendel-, and in not allowing appellant to dismiss her bill after the master’s report had been filed and appellant's exceptions hereto overruled. The appellees assigned cross-errors as follows: The court erred in not allowing the ten per cent, attorney’s fees provided for in the note and mortgage.

      Mr. Bobebt Doyle, for appellant.
    Mr. E. Saneobd, for appellees.
   Lacey, J.

When this case was here on a former appeal the only question presented by either party to the record was whether the appellant, being the purchaser of the mortgaged premises, and having agreed to pay the mortgage debt, could be allowed to claim the benefit of pleading usury.

On that appeal the appellant raised by assignment of cross-error, or otherwise, no question of tender, she claiming alone the benefit of the usury statute.

The position that appellant took prior to the former appeal on the trial of the case in the court below was that she, as the assignee of the mortgagor, was entitled to a large reduction on account of usury, and insisted on and obtained a decree inconsistent with the. claim of tender by procuring the court to allow her claim of usury. The two claims were inconsistent with each other. The appellant had, as she insists here, made a full tender of the amount of the note and interest at ten per cent, up to the time it was due and stood ready all the time to pay that amount over to the appellees upon their signifying a willingness to accept it. If this claim had been insisted upon all the time and the other claim not set up, there would have been much force in the contention made here for the first time.

But after having litigated the matter on an entirely different basis at much expense and delay and having been defeated there is no justice in allowing her now to renew the claim of tendon It should be regarded as having been abandoned.

We regard also that the matter is res adjudieata'by this court on the former appeal and the judgment of the court., The remaining order directed the court below to count the interest on the note according to its terms, to the date to be fixed by the decree for its payment, only allowing just credits. This necessarily cut off any claim of tender; for in case of the allowance of tender all interest from the day of tender would have been cut off as well as costs, which were allowed by our order to appellees. It also follows, as a necessary consequence, tha fc the appellees’ claim for attorney’s fees was cut off. By the order remanding the cause only the principal and interest were to he allowed. It also precluded the court from dismissing the hill, in any other manner than as ordered by this court, and that was to fix a day of payment in which time appellant might pay the amount due and costs and on failure so to do the hill stand dismissed. Gage v. Bally, 119 Ill. 539, and eases cited. The decree of the court below, being in conformity with the former opinion and order of this court, is affirmed.

Decree affirmed.