text:
    Thomas E. Graham and Katherine Graham, Appellees, v. Logan L. Mullins, Appellant.
    Gen. No. 9,091.

      Opinion filed September 3, 1936.
    Gerald C. Snyder, of Waukegan, for appellant.
    John V. Mooradian and Bernard Decker, both of Waukegan, for appellees.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

This was a suit in equity by appellees to redeem certain premises from appellant on the grounds that the title held thereto by appellant was held by him as mortgagee. The court entered decree in favor of appellees. This appeal follows.

Appellees were the owners of the premises in question. The same were then subject to a mortgage indebtedness. The mortgage was foreclosed and the premises sold thereunder for $2,047.76. Appellees* statutory period of redemption, as mortgagors, had expired. Appellant was a judgment creditor of appellees,, on a $320 note. Prior to the expiration of 15 months,, he redeemed the premises from the foreclosure sale,. Appellees had solicited appellant to loan them the money to redeem, or to take such action on their behalf in order that they might later repay him and thus save their farm. It appears that they had made efforts to secure the money necessary for the redemption, before going to see appellant, but that the parties with whom they had been negotiating were at that time unable to obtain possession of the necessary cash. Appellant, at the solicitation of appellees, made redemption of the premises as aforesaid, on next to the last day of the 15-month period, and executed and delivered to appellees a contract for the resale of the premises, a portion of which is as follows:

“Whereas, I, Logan L. Mullins of Chicago, Illinois, have obtained a judgment in the Circuit Court of Lake County, Illinois, against Thomas E. Graham, and,

“Whereas, it is my desire and intention to exercise my legal rights as holder of such judgment for the purpose of redeeming the real estate hereinafter described owned by the said Thomas E. Graham, from the foreclosure sale upon a certain mortgage dated December 17, 1928 and recorded in the Recorder’s Office of Lake County, Illinois, in Book 417 of Mortgages, on page 16, as Document No. 329387, which mortgage was foreclosed in a cause entitled Merchants & Farmers Bank, a corporation, vs. Thomas E. Graham, et al., in the Circuit Court of Lake County, Illinois, Gen. No. 31155; and

“Whereas, it is my intention to permit the said Thomas E. Graham to purchase said real estate from me if and in the event I acquire the same by such redemption or purchase of any certificate of sale;

“Now, Therefore, in consideration of the sum of Ten Dollars ($10.00) to me in hand paid by the said Thomas E. Graham of Round Lake, Illinois, I do hereby give to the said Thomas E. Graham, his heirs and assigns, the privilege of purchasing on or before the 15th day of February, A. D. 1935, the' following described real estate, situated in the County of Lake and State of Illinois, to-wit:”

Then follows the description of the premises together with the price to be paid, and fixing as the date for resale, February 15, 1935. Appellees instituted this suit at the March term, 1935, of the circuit court of Lake county, to compel appellant to convey the premises to them in accordance with the terms of the contract of resale.

Cases dealing with bills in equity to redeem from alleged mortgages, under circumstances similar to those existing in this case, are numerous. Where land is conveyed in fee by deed, and there is no condition or defeasance either in the deed or in a collateral paper, parol evidence may be resorted to for the purpose of establishing that the deed was given as a mortgage. Keithley v. Wood, 151 Ill. 566, 572, 578. And in the same case at p. 573, it is said: “But where there is a conveyance by deed, and a defeasance in a collateral paper, or a contract for resale, and the evidence leaves it in doubt whether the transaction was intended as a conditional sale or a mortgage, it will, as a general rule, be treated as a mortgage.” To the same effect are the cases of Illinois Trust Co. v. Bibo, 328 Ill. 252, 256, 257; and State Bank of St. Charles v. Burr, 283 Ill. App. 337. It is competent to show by parol that a sheriff’s deed was intended as a mortgage, between the owner of the premises and the purchaser thereof. Trogdon v. Trogdon, 164 Ill. 144. In this case at p. 148, it is said: “The fact that the assignment of the certificate of sale and the sheriff’s deed purport to convey absolutely to appellant the appellee’s interest in the land here in question is not conclusive of their true character, for it is competent to show by parol evidence that they were in fact intended as a mortgage. ’ ’ To the same effect is the case of McDonnell v. Holden, 352 Ill. 362, 369.

It is apparent from the position of appellant in his testimony that he treated the contract for resale more in the nature of a conditional sale agreement, and considered February 15, 1935, which was the date fixed for the resale, as an absolute bar of all rights of appellees under the contract, providing the money was not actually paid on or before said date. Evidence on behalf of appellees is to the effect that they went to see appellant in company with Dr. Charles F. Gettsinger, on February 15, 1935, for the purpose of paying to appellant the money necessary to redeem the property. It was proposed at that time by these parties that the doctor give to appellant his check for $1,000 and return with the balance in cash within not less than 48 hours. Appellant then stated that the contract was expiring on that day, and refused to further discuss the matter. With respect to this contention of appellant, it has been said that, “the date named in the writing for the payment of the amount due, simply fixed the time when appellant might foreclose his lien.” Trogdon v. Trog-don, supra, p. 148.

From an examination of the record in this case, our conclusion is that the decree of the trial court was right, and it is accordingly affirmed.

The abstract as filed by appellant is incomplete. The cost of additional abstract filed by appellees is to be taxed against appellant.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Dove

license: Public Domain

text:
    H. M. Cornell and B. W. Rosenstone, Appellants, v. Board of Education for High School District No. 99, Appellee.
    Gen. No. 9,062.
    Opinion filed September 3, 1936.
    Weightstill Woods, of Chicago, for appellants.
    William E. Hooper and Herbert A. Grotefeld, both of Downers Grove, for appellee; George P. Foster, of Chicago, of counsel.
   Mr. Justice Dove

delivered the opinion of the court. The trial court sustained a motion to strike the plaintiffs ’ complaint and accompanying bill of particulars and the plaintiffs elected to abide by their pleadings and their action was dismissed at their costs and this appeal follows.

The complaint alleged that the plaintiffs were the owners of all beneficial interest and avails of sundry lots in Lyman Park Subdivision in Downers Grove, Illinois; that in 1934 they first learned that none of this land lies within the territorial area of the defendant corporation and therefore the defendant never had any authority or power to levy, extend, collect or receive any taxes with reference to said real estate; that the defendant levied, assessed, extended, demanded and collected taxes from the plaintiffs wrongfully and without any color or warrant of authority for the years 1925 to 1930, amounting to the aggregate sum of $1,000, which amount the plaintiffs paid through the regular DuPage county officers and which amount the defendant now holds to the use and for the benefit of the plaintiffs. The bill of particulars filed with the complaint recites that the tax rate of the defendant district was $2.75 for each $100 valuation for 1925 and 1926, $2 for each $100 valuation for 1927, and for each of the other years; that the valuation for tax purposes of the properties of the plaintiffs and upon which they paid taxes as demanded was, for the year 1925 $2,095, for 1926 $2,315, for the year 1927 $17,430, for the year 1928 $12,350, and for each of the years 1929 and 1930 the valuation was $12,300. The bill of particulars further recited that the share of moneys demanded as taxes by the constituted public authority and paid by the plaintiffs and received and retained by the defendant, upon lands of the plaintiffs in said Lyman Park Subdivision, which were never within the geographical area of defendant district amounted to $1,000.

It is insisted by counsel for appellants that the lands of the plaintiffs being outside of the appellee district were not assessable for high school taxes, that they were wrongfully assessed and the taxes paid by mistake, and as the district has obtained appellants ’ money without any color of authority, appellants are entitled to recover. In support of their contention they cite and rely particularly upon United States v. Norton, 97 U. S. 164, and Pederson v. Stanley County, 34 S. D. 560, 149 N. W. 422. In the Norton case it appeared that the treasury agent of the government, having possession of claimant’s cotton, had exacted from the owner, on June 13, 1865,. a payment equivalent to one-fourth of its value as provided by a statute of1 the United States. It appeared that the President, by proclamation, acting in pursuance of law, removed the restriction under which the treasury agent ivas acting. The court held that the proclamation of the President took effect at the beginning of that day, and that the payment, while voluntary, was made under a mutual mistake of law and could be recovered. The Pederson case, supra, was an action by Pederson to recover from Stanley county taxes paid by him upon lands, afterwards found to be in Lyman county. It appeared that the Pederson lands were situated on a strip of land at one time claimed to be in both Lyman and Stanley counties. The Supreme Court of South Dakota held that this strip of land was in and belonged to Lyman county, but prior to the time that decision was rendered, Pederson paid the taxes in both counties. In holding that Pederson was entitled to recover, the court said: “It is the contention of appellant (the county) that under the general rule that taxes voluntarily paid cannot be recovered, the respondent was not entitled to recover a judgment for the said amounts so paid to Stanley county. We are of the view that the said rule has no application to the facts of this case. The property of respondent was wholly outside of the taxing jurisdiction or taxing district of Stanley county, and was therefore not taxable at all in the county, and the amounts so paid by respondent to said Stanley county were in fact not a tax at all. Stanley county was wholly without jurisdiction or authority to levy and collect such sums as a tax against the property of respondent.”

In Edwards v. Board of Com’rs of Oklahoma County, 169 Okla. 87, 36 P. (2d) 6, it appeared that plaintiffs’ property was wrongfully assessed for the taxable years 1929 and 1930 in a school district where it was not situate. The tax rate of this district was considerably higher than in the district where the land lay. The plaintiff did not know of the mistake and voluntarily paid the tax, but upon discovering the mistake he sued to recover the difference between the amount he paid and what he should have paid. The court in its opinion said that county officials were not infallible and that the plaintiff was negligent in not discovering the error and held there could be no recovery. In its opinion the court cited the cases of Wilson v. Allen County, 99 Kan. 586, 162 Pac. 1158 and San Diego Land & Town Co. v. La Presa School District, 122 Cal. 98, 54 Pac. 528. In the Wilson case it appeared that the plaintiff owned land lying in School District No. 9, but it was assessed as lying in School District No. 10, being the school district embracing the City of Iola and where the tax rate was much higher than the tax rate in School District No. 9. The plaintiff paid his taxes at the rate of district No. 10 and upon discovering the error, brought suit to recover the excess which he had paid. In denying the plaintiff relief the court stated that it was incumbent upon the landowner to know what school district his lands are a part of and that the payment of school taxes without protest and in the belief that the land constituted part of a school district comprising a city of the second class is a voluntary payment, and, after the taxes have been paid over to the board of education and have been disbursed for school purposes, it is too late for the landowner to maintain an action to recover them. In San Diego Land & Town Co. v. La Presa School Dist., supra, it was held that “where property was assessed in a district in which it was not situate, and the owner, having the means of discovering the mistake, voluntarily paid the tax, he could not recover it back.”

In 94 A. L. R. following the report of the case of Edwards v. Oklahoma County, supra, there is an annotation upon the question of the right to recover back taxes paid upon property assessed in the wrong district and at the top of page 1225 the author of the annotation says that in several instances the amount of taxes paid on property assessed in the wrong tax district has been recovered, citing the cases of Bridgeport Hydraulic Co. v. Bridgeport, 103 Conn. 249, 130 Atl. 164, Churchill v. Highland Park Graded School, 28 Ky. L. Rep. 162, 89 S. W. 122, and Fremont, E. & M. U. R. Co. v. Holt County, 28 Neb. 742, 45 N. W. 163. “In the majority of cases,” continues the annotator, “the recovery back of taxes paid by mistake upon property assessed in the wrong county, town or school district has been denied” and among others the case of Walser v. Board of Education, 160 Ill. 272, is cited. In that case the court said that a taxpayer who pays the amount of a school tax erroneously assessed upon his land by reason of the public officers mistaking the school district in which it belongs, does so voluntarily even though he is ignorant of the mistake and cannot recover such payment even though the amount is substantially greater than the amount of school taxes to which the land would have been subjected had such mistake not been made, and held that an illegal and void tax voluntarily paid cannot be recovered by the person paying the same from the municipality which receives such illegal and void tax.

Counsel for appellant insist that the Walser case is not in point as the individual complainant tax payers had a duty to pay taxes to one of the school districts, while in the instant case there was no such duty as the land of plaintiffs was not assessable for high school taxes. However, in the Walser case the county clerk by mistake entered certain described real estate which was in fact situated in District No. 2 as being located in District No. 1 and the land was so taxed and the owners of the land did not know of the mistake of the county clerk and paid their taxes. In its opinion the court said: “The tax levied by District No. 1, as extended on lands belonging to District No. 2, was an illegal and void tax. . . . The books were open to inspection by the taxpayers and the means of knowledge existed to learn and know all the facts. Money paid voluntarily by one with knowledge or means of knowledge of all the facts cannot be recovered back (citing cases). To recover from a municipality taxes illegally collected and paid out, the tax must have been illegal and void, paid under compulsion, or, what would be equivalent thereto, received to the use of the municipality from the collecting officer. ’ ’

The appellee school district has nothing to do with the extension of taxes in this State; all it does is to certify to the county clerk the amount of money which 'will be necessary for its purposes during the year. The county clerk then extends a rate upon the assessed value of the property in the district sufficient to produce the amount levied. The records of the county clerk and collector, showing the tax rate and the property against which it was extended, are matters of public record as are also the boundaries of the appellee district. Appellants had the means of ascertaining the facts and herein is the distinction between the instant case and Pederson v. Stanley County, supra. There the taxpayer would not have been able, under any circumstances, to determine in which county his property was located and taxable, so also in United States v. Norton, which we think is clearly distinguishable from the instant case.

In Yates v. Royal Ins. Co., 200 Ill. 202, which was an action by the insurance company against the State superintendent of insurance to recover taxes paid by it under an act of the legislature thereafter held void, the court held there could be no recovery and quoted the following from Cooley on Taxation: ‘ ‘ That a tax voluntarily paid can not be recovered back, the authorities are generally agreed. And it is immaterial, in such a case, that the tax has been illegally laid, or even that the law under which it was laid was unconstitutional. The principle is an ancient one in the common law, and is of general application. Every man is supposed to know the law, and if he voluntarily makes a payment which the law would not compel him to make, he cannot afterwards assign his ignorance of the law as the reason why the State should furnish him with legal remedies to'recover it back.” And in Swanston v. Ijams, 63 Ill. 165, which was an action brought against the county treasurer of McLean county to recover back taxes illegally assessed, the court held that there were two reasons why the plaintiff could not recover: first, he did not assert his rights when he might have done. so, and second, he voluntarily paid the tax even though he did so in order to prevent a sale of his lands.

In onr opinion, under the foregoing authorities, there can be no recovery under the allegations of the complaint and the judgment of the trial court will therefore be affirmed.

Judgment affirmed.


text:
    Frances McCoy, Appellee, v. Montgomery Ward and Company, Inc., and Thomas P. Riordan, Appellants.
    Gen. No. 9,066.
    Opinion filed September 3, 1936.
    Early & Early, of Rockford, for appellants.
    Ryan & Hood, of Rockford, for appellee.
   Mr. Justice Dove

delivered the opinion of the court. On and prior to March 29, 1930, E. 0. Stockburger was in the business of loaning money, selling notes sc-cured by mortgages and trust deeds, writing insurance and doing a general real estate business in Rockford as the Stockburger Agency. Frances McCoy, a widow, had written him that she had $1,150 to invest in trust deeds on Rockford property and on that day the Stock-burger Agency advised her that if she would send the money to them, they would issue to her an interest bearing receipt and would procure such a loan as she desired within a short time. On April 1, 1930, Mrs. McCoy sent him the $1,150' and on June 10, 1930, he mailed to her a note of that date for $1,150, executed by Carl E. Larson, payable to bearer, one year after date, and advised her that it was secured by a mortgage upon property worth about $2,600 owned and occupied by Mr. Larson. The note was secured by a trust deed executed by Larson and his wife upon lots 13, 14, 26 and 27 of block three of a subdivision known as Palmwood acres, a couple of miles outside the city limits of Rockford. The trust deed was duly recorded and it and the abstract of title were retained by Stock-burger and the note was held by Mrs. McCoy. On December 23, 1930, Larson executed another note for $650 to Stockburger and he and his wife, to secure its payment, executed their trust deed on lots one and two in the same subdivision. On the same day Stockburger executed a release of the trust deed of June 10, 1930 as to lot 13 therein described and this release was duly filed for record on the following day and upon this lot Larson commenced the construction of a dwelling and on January 6, 1931, executed a note for $4,700 securing its payment by a trust deed on said lot 13 to Thos. P. Riordan, trustee. Mrs. McCoy never authorized the release of lot 13, did not receive the $650 or any part thereof and knew nothing of the release or the transaction in connection therewith until June, 1933. In January, 1932, Stockburger sent her $22.75, which, with other amounts she had received from him, paid her interest on the principal sum of $1,150 in full to December 10, 1931. This was the last payment Mrs. McCoy ever received, Stockburger having absconded on May 9, 1932, being short in many of his accounts. He was adjudicated a bankrupt and Mrs. McCoy received her trust deed and abstract from his trustee in bankruptcy.

This suit was thereupon filed by Mrs. McCoy to foreclose her trust deed upon the four lots therein described. The complaint alleged that the release of lot 13 was without her knowledge or consent, that she received no consideration therefor, and that it was fraudulently executed and placed on record by Stock-burger. The complaint set forth the execution of the trust deed by Larson to Biordan and made him and all subsequent grantees parties defendant. Biordan answered denying that the partial release was unlawful and averring that Larson paid Stockburger as the duly authorized agent of the plaintiff $650 in payment for said release and averred that his trust deed was a first and prior lien on said lot 13. The answer further averred that at the time the McCoy mortgage was made lot 13 was only improved by an old building and that its value as so improved was not to exceed $300 and that therefore the lien of the plaintiff therein cannot exceed that sum. It was further averred in the answer that subsequent to the making of the McCoy mortgage lot 13 has been improved by the expenditure of $4,700 so secured by the Biordan trust deed. After the issues were so made up, a hearing was had resulting in a decree finding that there was due the plaintiff $1,572, that the release as to lot 13 was invalid as to the plaintiff and in default of paying the amount so found due that lots 14, 26 and 27 should first be offered for sale and in the event that they do not bring an amount sufficient to pay the amount so found due the plaintiff and costs, that then lot 13 be sold. From this decree an appeal has been prosecuted to this court.

Counsel for appellant insist that the release of lot 13 by Stockburger was valid as he, Stockburger, was then the agent of appellee and authorized to invest and collect her funds and that when Larson paid $650 on December 23,1930 for the release of lot 13, Stockburger immediately reinvested it in a new loan to Larson and it was this loan secured by a trust deed on Lots one and two of Palmwood acres which Stockburger embezzled and failed to account for and there was therefore a valuable consideration paid to appellee for the release of lot thirteen. The trouble with this argument is that it is not based upon any evidence in the record. Stock-burger was not the agent of appellee and he was not authorized by her to collect her money and he was not acting for her on December 23, 1930, when he accepted a trust deed from Larson on lots one and two, and she knew nothing about it. See Culhane v. Layman, 273 Ill. App. 557. Neither the note which appellee held nor the accompanying trust deed contained any prepayment privilege and the note was not due for almost six months after the release of lot thirteen was executed. In Kennell v. Herbert, 342 Ill. 464, it was held that where a release is executed by a trustee before the maturity of the indebtedness it was given to secure, and the trust deed contained no prepayment privilege that the trustee had no authority to receive payments on the note or execute a release of the trust deed. See also Marsh v. Stover, 363 Ill. 490.

It is further insisted by counsel for appellants that inasmuch as the evidence discloses that lot 13 at the time the trust deed was executed in June, 1930, and also at the time the release was executed in December of that year was not worth more than $300 and that at the time the suit was instituted said lot would not have had a value of more than $50 if the improvements which were made by appellants had not been made, that the chancellor should have decreed that upon the payment to appellee by appellants of $300, that lot 13 should be released from the operation of appellee’s mortgage. In support of this contention, our attention is called to the cases of Miller v. Thomas, 14 Ill. 428; Worth v. Worth, 84 Ill. 442; Cable v. Ellis, 120 Ill. 136, and Clark v. Leavitt, 335 Ill. 184. We have examined these cases and what the court there decided was that as a general rule permanent improvements made upon real estate by one who has no interest in the premises and without the consent of the owner become a part of the realty and vest in the owner but an allowance for such permanent improvements may be made by a court of equity where such permanent improvements are made in good faith by one in possession without notice of defects in his title, believing himself, and justified in such belief, to be a bona fide owner. This is what the court in Cable v. Ellis, supra, said was the true rule and after citing-various Illinois cases, continued: “There is, however, no principle of law permitting the owner or mortg-agor, or his grantee, or a subsequent purchaser with notice of prior equities of first purchaser, to make improvements on the premises and have a prior lien therefor but such improvements will pass upon sale of the premises.” Citing among other cases Martin v. Beatty, 54 Ill. 100. The Martin case was a” foreclosure proceeding- and it was held that a subsequent grantee of the mortgagor could not be reimbursed for improvements made upon the mortgaged premises. In Jones on Mortgages, Vol. 1, sec. 203, the author lays down the rule that a lien of a mortgage extends to all improvements subsequently made on the mortgaged premises whether made by the mortgagor or by a purchaser from him without actual notice of the existence of the mortgage. And in Powell v. Rogers, 11 Ill. App. 98, it is said that a mortgagor or other person making improvements on land subject to a mortgage does so for the benefit of the mortgagee and it makes no difference that the party making the improvements supposed the title to be good.

Appellants argue, however, that appellee should not be permitted to unjustly enrich herself at the expense of appellants; that they, appellants, at no time had any actual notice of the fraud of Stockburger in releasing lot 13 and that the only notice they did have was the constructive notice which the record itself disclosed, and it is contended that such constructive notice alone is not sufficient to disentitle them, as bona fide purchasers, to be compensated for their improvements in this proceeding. Such is the holding* of Warwick v. Harvey, 158 Md. 457, 148 Atl. 592, 68 A. L. R. 284, and the author of the annotation following that case in 68 A. L. R. at page 288 states: “By the weight of authority it is held that constructive notice from the record of the existence of a paramount title or interest, does not deprive an occupying claimant of the right to be reimbursed for his improvements on being ejected from the premises.” In support of this majority rule, cases from Arkansas, Indiana, Iowa, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, North Carolina, Tennessee, Vermont, Washington, Wisconsin and several Federal cases are cited. The author of the same annotation, however, on page 291 of the same volume then states the minority rule to be that constructive notice of an adverse claim to land is held to be as efficacious as actual notice, to preclude a recovery for improvements made by an occupying claimant and among the states listed as so holding is Illinois and the cases of Mettler v. Craft, 39 Ill. App. 193, Clarke v. Leavitt, supra, Montag v. Linn, 27 Ill. 328, and Lagger v. Mutual Union Loan S Bldg. Ass’n, 146 Ill. 283, are cited.

In the instant case Larson’s title to lot 13 was of record and open to inspection. If appellants, when the Riordan trust deed was executed by Larson, examined the record, it then disclosed that this lot, with others, was conveyed by the owner to Stockburger as trustee on June 10, 1930 to secure the payment of $1,150 due one year later. The record disclosed further that on December 23, 1930, Stockburger, a trustee, released this lot from the operation of that conveyance. If appellants concluded from this record that Larson had an unincumbered title and that the Eiordan trust deed was a first lien upon the premises, they were mistaken, not on a question of fact but on a question of law as under the law Stockburger’s purported release was void and under the authorities in this state, appellants are bound by the constructive notice as disclosed by the record just as much as if they had had actual notice of appel-lee’s lien.

It is true that appellants assumed that the Stock-burger release was valid and loaned $4,700 to Larson and secured the payment thereof by the Eiordan trust deed. The record discloses that Larson expended this money in the erection of a dwelling upon this lot and that shortly thereafter he defaulted in making the payments provided in said trust deed and subsequently made a conveyance to some of appellants. Photographs of lot 13 before and after the improvements were introduced upon the hearing and we have examined them in the record, and while the result is that appellee obtained an advantage because Stockburger wrongfully and without authority executed what purported to be a release of her mortgage on lot 13, still the law is well settled in this State that Larson, who made these improvements, made them upon this lot which was then subject to appellee’s mortgage, and it makes no difference even if he and appellants, who furnished the money, supposed the lien of appellee’s mortgage had been released. Powell v. Rogers, supra. The law presumes that every one not only knows the law but that he examines the title to real estate before purchasing or receiving a mortgage. Campbell v. McCahan, 41 Ill. 45. The decree is in consonance with the authorities and should be affirmed.

Decree affirmed.


author: Mr. Justice Wolfe

text:
    Elna Adamsen, Appellant, v. August L. Magnelia, Appellee.
    Gen. No. 9,072.
    Opinion filed September 3, 1936.

      Smith & Menzimer, of Rockford, for appellant; Lisle W. Menzimer, of counsel.
    North, Gibboney & North, of Rockford, for appellee; Frank P. North, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

The defendant, August L. Magnelia, is a licensed physician practicing his profession in the city of Rockford, Illinois. On August 19, 1933, his office consisted of a suite of rooms in the Rockford National Bank Building. In the latter part of July, 1933, the plaintiff, Elna Adamsen, was in an automobile accident whereby she sustained a bruise on her cheek below the left eye. Shortly after the accident, a doctor lanced the wound and suggested electrical treatment for the injury. About August 16, 1933, she consulted the doctor concerning the injury, which at that time was a hard swelling. The defendant recommended electrical treatment, and on August 19, 1933, the plaintiff came to his office for such treatment. She was then about 28 years old and had been acquainted with the defendant for about three years. In the treatment, the defendant used an electro-therapeutic machine of standard manufacture, operated by electricity. The doctor fastened a metal plate on the left cheek of the plaintiff and a metal plate on her right cheek. These plates were attached to the machine by wires. The defendant turned on the electricity and after the machine had been in operation for about 25 to 30 minutes, the plates were removed. During the treatment, the plaintiff received an electric burn on her right cheek.

The plaintiff brought an action for malpractice against the defendant and a summary of the counts of the complaint is given in our former opinion. Adamsen v. Magnelia, 280 Ill. App. 418. The jury found the defendant not guilty and the plaintiff appealed.

The plaintiff tried and submitted her case on the theory that the defendant negligently failed to attend the plaintiff during the treatment, as charged in the complaint and that the plaintiff was in the exercise of due care for her safety during the time of treatment. The verdict of the jury is to the effect that the evidence does not sustain the plaintiff’s case, which she had to prove by a preponderance óf the evidence.

It is contended by counsel for the plaintiff that the judgment should be reversed and the case remanded for a new trial, because the verdict is contrary to the manifest weight of the evidence. She urges that from the facts and circumstances appearing in evidence, it was the duty of the defendant to either remain in attendance during the time the treatment was being given, or to have some competent person, there to properly attend her, since the defendant knew the conditions, and she alleges that the evidence clearly shows that the defendant did not exercise due and reasonable care in the performance of that duty. The question of the alleged negligence of the defendant was thus circumscribed to the determination by the jury, as to whether she was properly and reasonably attended by the defendant during the treatment.

The electro-therapeutic machine used by the defendant is operated by a high-frequency electric current. The amperage used, is regulated and fixed by the operator by a switch with the aid of an indicator, which registers the strength of the current. The diathermic treatment by an electro-therapeutic machine is in general use by physicians to treat such swellings referred to in the evidence in this case, as a hemorrhage of the muscles. The amount of current to be used, is usually determined by the reaction of the patient, the nature of the ailment and the area being treated. It is difficult to ascertain, other than by advice from the patient, whether the machine has too much or too little current going through it. The apparatus is attached to the patient by means of metal plates, or electrodes, which are connected to the machine by wires. These metal plates are also known as poles. If a plate is not firmly fastened to the patient, sparking between the plate and the skin of the patient takes place. The patient usually feels at the time a burning sensation, and if the current is not turned off, an electric burn results. The testimony is to the effect that the burning sensation is a sharp, poignant pain. The use of too much electricity through the machine may also cause a burn, accompanied by such pain to the patient.

The defendant connected the machine to the face of the plaintiff by placing or fastening a small metal plate on the swelling and another small metal plate on the right cheek of the plaintiff, and then winding- a gauze bandage around her head. A few minutes after the current of 150 milliamperes was turned on by the defendant, the plaintiff told him that she felt a prickling or tingling sensation on her rig-ht cheek under the metal plate, to which the defendant replied, “that is good for you,” or words to that effect. The plate on the right cheek of the plaintiff became loose and the plaintiff so advised the defendant. The doctor replaced the plate under the gauze. The plaintiff again informed him about the prickling feeling under the plate on her right cheek. While the plates were so applied to the plaintiff, and about five minutes after he had turned on the current, the doctor left his office and did not return for about 30 minutes.

The defendant’s suite of offices, so far as can be learned from the testimony, consisted of a reception room with a hallway entrance; two examination rooms and a private office between the two latter rooms. A door to each examination room opened into the private office, and to enter either of these rooms it was necessary to pass through the private office. There was a desk in the private office and an examining table in the room where the electro-therapeutic machine was situated.

The testimony is in conflict whether the defendant left a nurse to attend the plaintiff during his absence. It is urged by the plaintiff that if the nurse was present, with or near the plaintiff during the treatment, she was not competent, under the conditions as shown by the evidence, to properly attend the plaintiff. The defendant also testified that the plaintiff told him that she felt a “tingling,” instead of a “prickling,” feeling. The testimony is also in conflict as to whether the defendant gave the plaintiff instructions that he should be told if she felt a burning sensation while the treatment was being given.

So far as the evidence is to be noted at this time, the plaintiff testified substantially as follows: Dr. Magne-lia said nothing to me when he applied the plates. He went over to the little table next to the door, and about two minutes afterward I said, “Doctor, this is prickling, I feel a pin prickling sensation on my right cheek. ’ ’ I felt nothing where the injury was that was being treated. He just turned his head and said, “That’s good for you.” Just a few minutes later I said, “Doctor, this thing is falling down.” The plate on my right cheek fell down to my shoulder, and the doctor came over to my side, and was putting* it up under the gauze, and I told him, ‘ ‘ There is a prickling, ’ ’ and he said, “I think that will stay there now.” He did nothing further with reference to the plates. Then he left the room and closed the door as he went out. There was no one else there except myself and the doctor from the time I went in there until he left. When he left, no one came in. I was in the room by myself about 25 or 30 minutes. During all that time, I was lying on the table just the way I was when he left. About 25 or 30 minutes later, a girl came into the room. She had on street clothes, and she said, “Well, I’ll take this off now before I get into my uniform. ’ ’ She took it off and didn’t say anything. I got up from the table and went over to pick my hat up from the chair, and I looked into the mirror, while I was putting my hat on, and I saw what had happened to my face. Dr. Magne-lia turned on the electric current after the plates were applied to my face. He did not turn it off before he left, at any time. After he left, I noticed the same prickling sensation that I had told him about when he was there. That continued from the time he put the plate on until the plate was taken off. The prickling sensation ivas on my right cheek where the burn was. His office girl or nurse turned the machine off. I felt nothing, except a prickling sensation that I called attention to. I had no burning sensation and had no sensation after the bandage was removed and I got up to put my hat on. There was no feeling in my cheek when I got off the table.

The mother of the plaintiff testified in part as follows: “I first saw Dr. Magnelia at my daughter’s house on August 28, 1933, I took the bandage off and looked at my daughter’s face. I said to Dr. Magnelia that I could not understand how that could happen, only through carelessness, and Dr. Magnelia said he knew it, and couldn’t tell me how sorry he was. ’’ This was the evidence of the plaintiff bearing on the material facts of the case.

The defendant, testified substantially as follows: I told her (plaintiff) if there was any indication of burning to let me know immediately, or if there was any indication of the electrodes moving, and I told her not to move her head, and keep as quiet as possible. After the machine was turned on about a half a.minute she told me one of the electrodes had become loose. I turned the machine off and replaced the electrode. I don’t think it had moved over half an inch. It was not on her shoulder,, lying loose. I turned back the switch and turned on the power again, and told her if there was any burning to let me know. I told her to be quiet and I walked over to my private office, which is about four or five feet from the room in which Mrs. Adamsen was. My nurse, Margaret Swanson, was in my private office. The door was open between my private office and the room where Mrs. Adamsen was. I told my nurse that Mrs. Adamsen was on the table taking her treatment, and that I had advised her to tell us if any burning sensation was occurring. If so notified, I instructed the nurse to shut off the motor immediately. I gave her the time when the treatment was to cease, and when the machine was to be turned off. I remained in the room with Mrs. Adamsen while giving her the treatment four or five minutes. Mrs. Adam-sen told me she felt heat, after the plate was readjusted. She said she felt a tingling sensation. I said, “that is normal, that is the usual feeling that a person gets when under the apparatus. ’ ’ After the conversation with my nurse, I left the office and went to the end office, which is not in the suite I occupied. It belonged to Dr. Dubiel. When I left the office, the nurse was standing with her hand in the door leading into the room where Mrs. Adamsen was. I saw Mrs. Adamsen about half an hour afterwards in my private office. She had a burn on her right cheek. I did not have a conversation with Mrs. Adamsen’s mother in which she said to me, “I don’t see how this thing could happen if the machine was put on tight; it must have been loose, otherwise it couldn’t have happened, and it all happened through carelessness,” and in which I said, ‘11 know it, and I can’t tell you how bad I feel about it. ’ ’ I was admitted to the practice of medicine in this State in 1928. Before I came to Bockford, I had just finished my interneship at a hospital in St. Louis. I took the State board examination in Missouri, and have practiced continuously at Rockford since coming here. I never practiced medicine and surgery before I came to Rockford. I came to Rockford from my interneship. The machine was a 1933 model. I had had it about seven or eight months before this treatment was given. I never took a course in electrical engineering. My electrical training was in connection with medicine and medical treatment. I was in medical school four years. Mrs. Adamsen’s head was resting on a pillow after the plates were applied. After she told me one plate was loose, I went over and adjusted the plate. I did not change the bandages. I did not add any more bandages. She did not say she experienced a prickling sensation. She said tingling. I remember the words distinctly. I told the nurse if Mrs. Adamsen complained of any burning or any feeling, that the machine should be shut off immediately, and, if not, within 15 minutes. I did not come back to my office before that time expired, nor get in touch with my office. I knew the current was turned on when I left.

Margaret Swanson, the nurse, testified as follows: I am married; my name in 1933, was Margaret Anderson. I am employed by Dr. Magnelia. I was in training at St. Anthony’s Hospital for three years. It was a nurses’ training course. I have been associated with Dr. Magnelia since 1932. I saw the plaintiff on the examining table while I was with a patient in another room. I had a talk with Dr. Magnelia in his office while Mrs. Adamsen was in the room. I was in the doorway between the office and the examining room when I had the conversation. The doctor said to leave her there for 15 minutes from there on and that if she had any complaint, to turn the heat off right away. I was familiar with the operation of the machine. It had been there six months or more. I knew where the switches were. For the next 15 minutes, after I talked to the doctor, I walked between her and the table, and the office, or desk. She did not say anything during the time. I turned off the machine 15 minutes after the doctor spoke to me. The doctor left the room. I did not know where he went. I called the doctor on the telephone where I thought he was, but did not get him, so I started to look for him down the hall. After I turned off the machine, I took off the appliances. During the fifteen minutes after the doctor spoke to me, I had been in to Mrs. Adamsen’s room three or four times, back and forth. The door was not closed into her room. I wore my white uniform that day. The doctor did not tell me where he was going nor when he was coming back. I do not remember how much current was used and I have never turned the machine on. Mrs. Adamsen’s husband came for her in about 30 minutes after the burn occurred. He did not ask me what had happened, and I did not say I did not know, that I was not in the room, or words to that effect.

In rebuttal, Evald Adamsen, husband of the plaintiff, testified that, when he went into the office of the defendant, he had a conversation with the nurse and asked her what happened to his wife, and the nurse said, “I do not know, I was not in the room.” The plaintiff testified as follows: The door to Dr. Mag-nelia’s office was closed. The door was not opened at any time, after Dr. Magnelia left, until his nurse came in, and took off the machine. I did not while I was in the examining room hear any conversation between the defendant and his nurse.

Three physicians and surgeons practicing in Rockford testified on behalf of the defendant. Dr. Erickson had been practicing for seven years. Dr. Quandt, for five years and Dr. Weld, for 25 years. In reply to a hypothetical question, based on the facts testified to by the defendant and the nurse, these doctors each testified that in their opinion, the treatment as administered by the defendant was the usual and customary dia-thermic treatment used by physicians in good practice in Rockford and similar communities in the vicinity of Rockford.

The evidence is in conflict on the material facts upon which the plaintiff bases her cause of action. The evidence is not complicated and the issue of the case turns on the question of the credibility of the witnesses. It was for the jury to say which testimony should be given credence, under all the facts and circumstances appearing in the evidence, and whether the plaintiff had proved her case by a preponderance of the evidence. To overrule the verdict of the jury, this court must be of the opinion that the verdict is contrary to the manifest weight of the evidence. (Masonic Fraternity Temple Ass’n v. Collins, 110 Ill. App. 504.) Questions of fact fairly presented are deemed to have been settled by the verdict. (Skinner v. Sullivan, 127 Ill. App. 657; Shearer v. Aurora, E. & C. R. Co., 200 Ill. App. 225.) The evidence, as above stated, is not complicated, and an analysis thereof is not necessary. The verdict, in our opinion, is not contrary to the manifest weight of the evidence.

The plaintiff introduced as an expert witness Dr. Wright and propounded to him a hypothetical question embodying the facts as testified to, by the plaintiff. The question concluded as follows: “Have you an opinion as to whether or not the physician (the defendant) exercised such care in that treatment as is ordinarily exercised by physicians and surgeons in good standing, in and about the City of Rockford, Illinois, in the same general practice, having regard for the condition of medical science at that time1?” The question ivas objected to on the ground that it usurps the province of the jury and asks the ultimate questioh in this case. The trial judge then stated, “that an expert can give his personal opinion, but I do not think an expert may give an opinion on the very question which the jury are going to be called upon to pass on.” The court sustained the objection. It is contended by the plaintiff that the court erred in ruling on the objection to the question. The question as to whether the defendant exercised such care in the treatment as is ordinarily exercised by physicians and surgeons in good standing, in and about the city of Rockford, was the ultimate fact to be decided by the jury and the defendant had the right to the judgment of the jury as to the proper inferences to be drawn from all the facts in evidence. Hoener v. Koch, 84 Ill. 408; Keefe v. Armour & Co., 258 Ill. 28. The objection to the question was properly sustained.

The plaintiff complains of instruction number four which was given at the request of the defendant. This instruction is as follows: “And even though you believe from the evidence that the plaintiff was burned as a result of such treatment, still if you further believe from the evidence, that the defendant was not aware of the fact that the said machine, while in operation, was burning the plaintiff, that the only means the defendant had of knowing that the machine had burned the plaintiff’s face was by being advised by the plaintiff, and that the plaintiff’s face was burned, and if you further believe from the evidence that the defendant told plaintiff to tell him if she felt any pain or burning, and if you further believe from the evidence that plaintiff was guilty of negligence in failing to tell defendant of any pain or burning,- and that the silence of plaintiff was the cause of her being burned and damaged, then the plaintiff cannot recover in this case.” The plaintiff complains of this instruction on the ground that it singles out certain facts, which were disputed. The de-fendanffreplies to that objection by stating that all the instructions are not set out in the abstract and that the law is, that the court will not consider an objection to an instruction, unless all the instructions are abstracted so that the court may see whether the instructions, as a series, were correct or not. An instruction which directs a verdict on facts recited in the instruction (probably not good practice) must state all the substantive and controlling facts of the case. And if it does not, no other instructions will cure the defect. We quote from Pittsburg, C., C. & St. L. Ry. Co. v. Banfill, 206 Ill. 553, 556: “They (the instructions) are argumentative, and seek to raise questions not proper to be submitted to the jury. They violate the rule often announced by this court, that instructions which attempt to specify what conduct on the part of a plaintiff is imprudent or negligent should be refused, those being questions of fact for the jury to determine from all the evidence. (Illinois Central Railroad Co. v. Griffin, 184 Ill. 9; Chicago, Burlington and Quincy Railroad Co. v. Pollock, 195 id. 156; Chicago & Eastern Ill. R. R. Co. v. Huston, 196 id. 480.) In the latter case we said that it is not proper for an instruction to tell the jury what acts or omissions constitute negligence, or that it was the duty of the deceased to have looked and listened,” etc.

It was a controverted question whether anyone was present in the room, with the plaintiff during her treatment. Her evidence is positive that there was no one present. The doctor admits that he was not present. Mrs. Swanson testified that she was present part of the time. This instruction assumes that the defendant was present, so that the plaintiff could notify him of the burning. The evidence discloses that the plaintiff was placed in a reclining position, the apparatus applied, and she was directed to lie still, until the end of the treatment. The instruction also assumes that the plaintiff knew that her face was being burned, and the evidence is positive that the plaintiff did not realize that her face was being burned, until after the treatment was over. There is expert testimony that there would be sharp pain from such a burn, but this was a controverted question for the jury to decide. It is our conclusion that it was reversible error for the court to give this instruction.

The judgment of the circuit court of Winnebago county, is hereby reversed and the cause remanded.

Reversed and the cause remanded.


text:
    In re Estate of D. R. Peterson, Deceased. Swedish American National Bank of Rockford, Appellant, v. Martin R. Wahl, Administrator of the Estate of D. R. Peterson, Deceased, Appellee.
    Gen. No. 9,079.
    Opinion filed September 3, 1936.
    Large & Reno, of Rockford, and Ralph S. Zahm, for appellant.
    Nelson & Nelson and Karl C. Williams, all of Rockford, for appellee; J. Phillip Dunn, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

D. R. Peterson and O. E. Landstrom, on December 9, 1927, entered into a written agreement with August P. Peterson relative to the sale of 1375 shares of the common stock of the Free Sewing Machine Company, at a price of $150,000. The agreement is as follows:

“Agreement made this 9th day of December, 1927, by and between August P. Peterson, first party, and O. E. Landstrom and D. B. Peterson, second parties, all of Bockford, Illinois.

“Witnesseth, Whereas, the First Party is the owner of 1375 shares of the common capital stock of the Free' Sewing Machine Company, an Illinois Corporation, Now, Therefore, for and in consideration of the payments hereinafter to be made, the First Party agrees to sell and deliver to the Second Parties, the aforesaid 1375 shares of the common capital stock of the Free Sewing Machine Company for a total consideration of $150,000.00 to be paid in the manner and at the time as hereinafter provided, to-wit:

$25,000.00 on or before April 3, 1928;
12.500.00 on or before January 3,1929;
12.500.00 on or before January 3,1930;
12.500.00 on or before January 3, 1931;
12.500.00 on or before January 3,1932;
12.500.00 on or before January 3,1933;
12.500.00 on or before January 3,1934;
12.500.00 on or before January 3, 1935;
12.500.00 on or before January 3, 1936;
12.500.00 on or before January 3, 1937;
12.500.00 on or before January 3,1938;

“Second Parties agree to pay to the First Party interest on the aforesaid deferred payments at the rate of 6% per annum from January 1, 1928, payable semiannually. Said principal and interest to be payable at such place or bank as First Party may designate; and when payments are made on principal and interest, the payments shall be endorsed on this contract.

“When the Second Parties have made all of the payments provided in this contract, the First Party agrees to deliver to the Second Parties the aforesaid 1375 shares of stock in the Free Sewing Machine .Company.

“It is further agreed that all dividends declared and paid on the aforesaid 1375 shares of Common Stock in the Free Sewing Machine Company shall be applied toward the payment of the principal and interest due on this contract.

“This Agreement shall extend to and be obligatory upon the heirs, administrators, and assigns of the respective parties, and is made, executed and delivered in triplicate.

“In Witness Whereof the Parties have hereunto set their hands and seals the day and year first above written.

August P. Peterson (Seal)
First Party
O. E. Landstrom (Seal)
D. R. Peterson (Seal)
Second Parties.”

On January 31, 1928, the same parties made a supplemental agreement providing for the substitution of 1,375 shares of cumulative preferred stock of Consolidated Industries Inc., for the Free Sewing Machine Stock. The new agreement had additional provision that on the payment of each $25,000 of principal and interest after January 31,1933, 125 shares of said preferred stock should be delivered to O. E. Landstrom and D. R. Peterson. On October 13, 1931, August P. Peterson assigned all of his interest in said written agreement to his seven children.

On July 24, 1933, D. R. Peterson died intestate, and Martin R. Wahl was appointed administrator of his estate. The seven children of August R. Peterson on September 30, 1933, entered into a written agreement with Martin R. Wahl, administrator as aforesaid and O. E. Landstrom, which, recited the former agreement, relative to the sale of said stocks and the reorganization of Consolidated Industries Inc., and provided that 1,400 shares of preferred stock of Consolidated Industries Inc., should be surrendered, and second preferred stock of new Consolidated Industries Inc., should be issued in lieu thereof, on the basis of 24% shares of second preferred stock for each share of first preferred stock. Said contract further provided that such new stock should be issued in the name of O. E. Landstrom and Martin R. Wahl, administrator of the estate of D. R. Peterson, deceased, proportionately and ratably as said bank now holds 1,400 shares of cumulative preferred stock for O. E. Landstrom and Martin R. Wahl, administrator; that the certificates evidencing the new second preferred stock in the new corporation should be deposited with, and held by the bank in accordance with the terms and provisions of the foregoing agreement. The children of August P. Peterson entered into a trust agreement with the Swedish American National Bank, as trustee, providing for the transfer of all interest in, and to said agreement for said stock to be held by the bank, as trustee, under the terms and provisions of a trust agreement. On July 13, 1934, the Swedish American Bank, as trustee, filed its claim against the estate of D. R. Peterson for the sum of $109,671.90, alleging that there was a balance due of this amount on the purchase price of the said stock, from the estate of D. R. Peterson, deceased.

A hearing wTas had before the probate court of Winnebago county, and the claim was allowed for the full amount. The administrator of the estate appealed the case to the circuit court of Winnebago county. Upon hearing, the court entered an order disallowing said claim, and found that said agreements did not constitute a binding contract of purchase on the part of D. R. Peterson or on the part of Martin R. Wahl, administrator of the estate. The court ordered that the claim be dismissed and that procedendo issue to the probate court of Winnebago county, Illinois. It is from this order that the appeal is prosecuted.

The question which confronts us in this appeal is whether the several agreements, as set forth, constitute a valid and binding obligation to purchase the stock in controversy, or are mere options to buy the stock, which bind the seller, but do not bind the purchaser.

The appellants seriously insist that this is a contract to purchase so many shares of capital stock at a fixed price and that both buyer and seller are bound by it. On the other hand, the appellee contends that the contracts are unilateral and the defendant was not obligated to buy all, or any part of the stock, but if he should buy any of it, and it was delivered to him, then he would have to pay the price as designated in the agreement. In the case of Vogel v. Pekoc, 157 Ill. 339, at page 342, our Supreme Court in discussing what was necessary to constitute a mutual contract use this language : 1 ‘ The next question to be determined is whether the contract is mutual. It is a general rule, well understood, that a contract between parties must be mutual. (Weaver v. Weaver, 109 Ill. 225; Chitty on Contracts, 15; Bishop on Contracts, sec. 78, p. 32; Tucker v. Woods, 12 Johns. 190.) In the case last cited it is said: ‘In contracts, where the promise of the one party is- the consideration for the promise of the other, promises must be concurrent, and obligatory upon both at the same time. ’ (1 Chitty, 297; 1 Carnes, 594.) In Chitty on Contracts, supra, the author says: ‘ The agreement, as before observed, must, in general, be obligatory upon both parties. There are several cases satisfactorily establishing, that if the one party never were bound, on his part, to do the act which forms the consideration for the promise of the other, the agreement is void, for want of mutuality. ’ In 1 Wharton on Contracts, page 5, the author says: ‘ The parties to a contract, therefore, must both be bound. Supposing that one promise in consideration of the promise of the other, the one is not bound unless the other is bound. A promise to do a thing on an executed consideration is not a contract; nor is a promise to do a thing in consideration of an illegal or impossible engagement on the other side. Without this reciprocal obligation no contract can be constituted. ’ ”

It is not seriously contended by either of the parties to this litigation, that this is not the correct rule, but they differ upon the interpretation of the language used in the contract. So far as we have been able to ascertain, neither our Supreme nor Appellate Court of this State have passed upon a similar question as is here presented. In the case of Martin v. Cox, 13 Ga. App. 236, the Supreme Court of Georgia had to construe a contract for the sale of stock and we quote both the contract and the Court’s ruling thereon. “Cox sued Martin, alleging that Martin entered into a contract with him to purchase from him 12 shares of the capital stock of the Martin Furniture Company at a price not less than $1,500, and that he tendered the stock to Martin in pursuance of the contract, stating his desire to sell, but that Martin refused to take the stock, and consequently is indebted to him in the sum of $1,500, with interest. The contract (a copy of which is attached to the petition) was as follows: ‘State of Alabama, Jefferson County. This agreement, entered into this the 19th day of August, 1909, witnesseth: That I, M. M. Martin, do hereby agree to purchase of Wm. J. Cox, one year from date, 12 shares of the capital stock of the C. A. Martin Furniture Company, at a price to be mutually agreed upon of not less than $1,500, should said W. J. Cox wish to sell same. Should the said Wm. J. Cox desire to sell, he shall give to the said M. M. Martin 30 days’ notice of his intention to sell.’ (Signed) M. M. Martin, W. J. Cox.” The jury found a verdict in favor of the plaintiff for $1,500. The defendant excepted to the overruling of his demurrer to the petition, and also to the judgment overruling his motion for a new trial. It is very clear, from a reading of the contract which we have quoted, that the contract is unilateral, and this phase of the case is not affected by the fact that Cox, as well as Martin, signed the instrument. Martin promised to buy the stock from Cox, if Cox, at the time designated, wished to sell it; but Cox did not promise to sell his stock to Martin, even if Martin should wish to buy it at that time, nor did he in any way obligate himself to sell, no matter how anxious Martin might be to buy. Under the provisions of the instrument Martin was bound to buy, but Cox was not bound to sell. It would be profitless for us to elaborate the proposition that a contract, to be enforceable, must be mutual. Negotiations, propositions, and tentative understandings between parties do not become contracts until both parties are bound. Generally speaking, if one party cannot hold the other to the terms of the contract, and compel him to perform under it, or bring an action against him for his refusal to perform, the transaction is unilateral, and no contract exists as against either party.

In the case of Hardwick v. McClurg, 16 Colo. App. 354, 65 Pac. 405, the Supreme Court of Colorado were construing a contract in which the plaintiff agreed to sell and deliver to the defendant, certain shares of stock, also a lease on a mining claim and an undivided one-half interest in a certain tunnel site on said mining claim. Kinney assigned his interest in said agreement to James A. McClurg. Default was made and Hard-wick brought suit for the enforcement of the contract. After discussing and analyzing numerous other cases, the court concluded with the following: “If, in the case at bar, Kinney had covenanted with the plaintiff to make the several payments mentioned in the contract at the times specified, and the plaintiff, averring performance, or tender of performance, of his own agreements, had brought suit against Kinney to recover the installments in default, it would certainly be held that, although the defendant had incurred successive liabilities, his contract ivas entire. The difference between a situation like that and the one in hand is obvious. Kinney bound himself by no contract. It is a misuse of terms to say that his contract was entire, for he entered into none. He was at liberty to make as many payments as he chose, and stop when he saw fit; but, so long as he did pay, the plaintiff was bound to make the deliveries for which the payments called. When he ceased, the option, and the obligation of the plaintiff, were at an end; but the default could not affect rights which had previously attached.”

In the case of Bashinski Brothers v. Lake, 9 Ga. App. 352, 71 S. E. 702, Bashinski Brothers sued Lake for damages for alleged breach of the following contract: “Georgia, Laurens County. This agreement, made and entered into this 19th day of May, 1909, between E. P. Lake, of the County of Laurens, state of Georgia, of the first part, and Bashinski Bros., of the county of Laurens, state of Georgia, of the other part, witnesseth: That for and in consideration of the sum of one ($1.00) dollar, cash in advance, the said E. P. Lake agrees to deliver to the said Bashinski Bros, fifty (50) bales of cotton averaging not under 500 lbs. per bale, at the price of 10 cents per pound, basis of good middling, standard Savannah classifications.” (How the grades of cotton were to be determined and if a dispute arose, how they were to be arbitrated.) The contract was signed by both parties and was under seal.

The court in their opinion say, “the petition alleges that the defendant, Lake, fails and refuses to deliver the 50 bales of cotton as he contracted and agreed to do, by reason of which plaintiffs have been damaged in the sum of $1,093.74, being the difference in the price contracted for and the price of the cotton on the day when the same was to have been delivered under the contract. The court dismissed the petition on oral motion of the defendant, on the ground that the contract sued upon was unilateral, and was of no binding force or effect in law, and that there was no cause of action set out in the petition; and to this judgment exception is taken.

“We are clear that under these rulings the instrument sued upon was, for the reasons stated, unilateral, and not enforceable as an executory contract of purchase and sale. It is true that the contract in this case was signed by both parties, but this fact of itself does not make the contract one of mutuality. The instrument, to be a valid contract and mutually binding, must contain mutual agreements, or mutual promises, or a mutual consideration. In the cases of Harrison v. Wilson Lumber Co., 119 Ga. 6, 45 S. E. 730, and Cooley v. Morse, 123 Ga. 707, 51 S. E. 625, the instruments alleged to be contracts were signed by both parties. In the latter case the Supreme Court says: ‘It is true that the instrument sued on begins with the words, “This agreement, made this day between A. J. Morse and J. L. Cooley,” and is signed by both parties. But Cooley nowhere agrees or promises to do any act, or binds himself in any way. He does not agree to take the. lot, or to pay the purchase price — just as in the present case Lake agrees to deliver, but Bashinski Bros, do not agree to receive or to pay for, the cotton.”

It will be observed in the purported contracts in the present case, that August P. Peterson agreed to sell and deliver to the parties of the second part, certain shares of stock, but nowhere in any of the agreements, do Landstrom and D. R Peterson agree to buy and pay for said stock. The appellant argues that the stock was issued in the name of the appellees and accepted' by them, and so it would then appear, that the seller had wholly performed the obligations of the contract and nothing remained to be done except the payment of the account by the buyer and therefore the defense of want of mutuality is not applicable. The evidence in this case does not show that any stock not fully paid for was delivered to the appellee, but it was delivered in escrow to the bank to be turned over to the appellee if certain payments were made.

It is our conclusion that the several agreements were unilateral and unenforceable and the circuit court properly found that the claim was not valid against the estate of D. E. Peterson, deceased.

Judgment affirmed.


text:
    Maude Kaifer, Appellee, v. Edward Kaifer, Appellant.
    Gen. No. 9,071.

      Opinion filed September 3, 1936.
    Clarence W. Heyl, of Peoria, for appellant; Hudson Ralph Sours, of counsel.
    Barnes & Magoon, of Lacon, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

In January, 1920, the parties hereto were divorced and the custody of a minor son, Harold, was awarded to the mother for nine months of each year and to the father for the three summer months. Subsequently, on January 20,1921, the decree was modified in certain particulars and as modified directed the father to pay to the mother $15 per ¡month during the nine months she had the custody of Harold, to be used and expended by her for the care and support of said child and for his clothing and ordered said sum to be left by the father at the First National Bank of Henry for the use and benefit of the mother. On October 7, 1935, Mrs. Kaifer filed the instant petition, reciting the entry of the foregoing orders and charging that in June, 1925, the respondent ceased paying the monthly instalments and averring that there was due the petitioner $2,025, which sum the respondent wilfully refused to pay. The petition prayed for a rule on respondent to show cause why an attachment should not issue against him and that he be punished for contempt of court for his neglect and refusal to comply with the provisions of the former decree. A citation thereupon issued and on October 23, 1935, respondent filed herein his answer in which he admitted the entry of the order of January 20, 1921, but specifically denied that he had wilfully violated that order and averred that he had at all times endeavored in good faith to comply with the letter and spirit thereof and was not guilty of contempt of court; that after the entry of the order in January, 1921, he deposited $15 in the designated bank for the use and credit of his wife on the first of each month and continued so to do until October 1,1926, and that from and after that date he paid more than the sum of $15 each month to his son for his needs and clothing and for his care and support; that no demand was made by petitioner on respondent after October 1, 1926, and respondent assumed that petitioner was satisfied with the payments respondent was then making. He specifically denied that he had ceased making monthly payments in June, 1925, and denied that the sum of $2,025 was due under the order of January, 1921. Upon the hearing, the respondent was granted leave to file an amendment to his answer, which averred that petitioner was guilty of laches in prosecuting her petition and that her claim was barred by either the five- or ten-year statute of limitation. A hearing was had, resulting in an order finding that respondent should not be adjudged guilty of wilful contempt and discharging the rule previously entered against him to show cause. The chancellor further found from the evidence that payments under the former decree had been made by respondent to and including October 1, 1926; that on October 10, 1933, the minor child became of age and no payments had been made by respondent between October 1,1926 and October 10,1933, except a payment of $10 on December 9, 1926; that there was due and owing petitioner under said decree the sum of $15 per month for nine months of each year for seven years or a total of $945, less a credit of $202.65 for clothing furnished the son by respondent and less the said $10 paid by respondent on December 9, 1926, leaving a balance of $732.35, for which amount a money decree was rendered in favor of petitioner and against respondent. From this order the respondent has perfected this appeal.

It is first insisted by counsel for appellant that under the provisions of the Civil Practice Act every complaint must contain specific prayers for the relief to which the pleader deems himself entitled; that the prayer of the petition in the instant case was that a rule be entered requiring appellant to show cause within a reasonable time why an attachment should not be issued and he be punished for a contempt of court for his neglect and refusal to. comply with the former decree ; that instead of punishing defendant for contempt, the court found by the final order herein that defendant should not be adjudged guilty of wilful contempt and discharged the rule previously entered for him to show cause, but did render judgment against appellant and in favor of appellee for $732.35 and awarded an execution. In other words, as we understand counsel, the court under the prayer of the petition did have jurisdiction and would have been authorized to make the findings it did and then order appellant committed to jail for a definite period or until he paid the amount so found due, but inasmuch as there was no specific prayer for a money judgment, the court was without jurisdiction to render that portion of the order appealed from. In our opinion, under the pleadings of the parties and the facts as they appear in this record, there is no merit in this contention. Appellee in her petition set forth the facts upon which she sought relief and averred that appellant had ceased making payments to her in June, 1925, and charged that there was due her from appellant the sum of $2,025, which she said he wilfully refused to pay. Appellant, by his answer, admitted certain allegations of the petition but denied that he had stopped making payments in June, 1925, denied that there was due her the amount she claimed, set forth new matter and insisted that he had not wilfully refused to pay appellee as provided in the decree of 1921 but had at all times endeavored in good faith to comply with its letter and spirit.

Section 34 of the Practice Act, Ill. State Bar Stats. 1935, ch. 110, ¶ 162, does provide that every complaint shall contain specific prayers for the relief to which the pleader deems himself entitled. It further provides: “except in case of default, the prayer for relief shall not be deemed to limit the relief obtainable but where other relief is sought, the court shall, by proper orders, and upon such terms as may be just, protect the adverse party against prejudice by reason of surprise.” In the Historical and Practice Motes following this section in Smith-Hurd Ill. Anno. Stat., it is said that the former practice in equity of granting relief not specifically prayed for where the complaint contained a prayer for general relief and the allegations of the complaint and the proof supported such relief, is preserved by this section, whether or not the complaint contains a general prayer for relief, and under the former practice a general prayer for relief was sufficient to support any order or decree warranted by facts alleged in the bill and established by the evidence. Parker v. Gray, 317 Ill. 468.

Counsel for appellant do not argue that appellee’s claim against appellant is barred by any statute of limitation, but do insist that the evidence discloses that after the year 1925 appellee made no demand upon appellant for any sum that might be due her under the former decree and that therefore having acquiesced in appellant’s failure to pay until she filed her petition herein in October, 1935, she is guilty of such laches as will preclude her from obtaining any relief. We have examined the Illinois cases cited and none of them sustain counsel’s contention. Our attention is called to the case of Price v. Price, 80 Colo. 158, 249 Pac. 648. Counsel insist that the facts in this case are “on all fours” with the facts in the instant case. It appeared in the Price case that more than 15 years had elapsed from the time the original decree was rendered before the wife took any steps to enforce the provisions of the decree for the support of her child and the court there held that where the husband was ordered to pay alimony for the support of a minor child and the wife supports the child for such a long period without receiving alimony, her laches ought to be applied against her the same as where an ordinary recovery of money is sought. In Chicago Medical School v. Wilson, 341 Ill. 170, our Supreme Court said: “A court of equity will apply the doctrine to laches in denial of relief only where from all the circumstances to grant relief to which the complainant would otherwise be entitled will presumably be inequitable and unjust because of the delay. ’ ’ In the instant case appellant was directed by the decree of 1921 to pay to appellee each month the sum of $15 and to do so by leaving the same at the First National Bank of Henry for the use and credit of appellee. Appellant did so, until October, 1926, and thereafter in December of that year he paid appellee $10 and at various times thereafter expended sums aggregating more than $200 for clothing for Harold, Harold became of age in October, 1933, and in less than two years thereafter, the instant petition was filed. This decree was a continuing order and "we are unable to say that its enforcement is inequitable or unjust.

It is finally argued that the amount of the judgment is manifestly against the weight of the evidence, but wherein it is erroneous is not pointed out. We have read the record and it appears that the chancellor accepted appellant’s testimony to the effect that he had paid the monthly requirement to and including October 1, 1926, and credited him with every expenditure which the evidence disclosed he made for the support and maintenance of Harold. In our opinion the chancellor’s findings are sustained by the evidence and the order appealed from therefore should be affirmed.

On page 148 of the transcript of the record appears a notice of cross appeal by appellee. When, if ever, this notice was filed in the office of the circuit clerk does not appear from the record. It states that ap-pellee appeals from that part of the order which denies her interest on the amount directed to be paid to her. On page 28 of the appellee’s statement, brief and argument, being the concluding part of appellee’s argument, counsel say that the trial court erred in refusing to require appellant to pay interest and stating that they had assigned cross errors to this effect. No other reference to this is found in any other part of appel-lee’s statement, brief or argument. Buie 36 of the Supreme Court provides that no assignment of cross errors shall be necessary except the statement in the brief, at the conclusion of the statement of the case, as required in Buie 39 and Buie 39 provides how the briefs of the respective parties should be prepared and where a statement of the errors and cross errors relied upon for reversal should appear. The rule followed in equity is to allow interest where warranted by equitable considerations and to refuse such allowance when it does not comport with justice. Golden v. Cervenka, 278 Ill. 409. Assuming that the question is properly presented for our consideration, we are unable to say that the holding of the chancellor was not in accordance with the equities of the case.

The order appealed from is affirmed.

Order affirmed.


author: Mr. Justice Wolfe delivered

text:
    The First Trust Joint Stock Land Bank of Chicago, Appellant, v. Robert Worrell et al., Appellees.
    Gen. No. 9,084.
    Opinion filed September 3, 1936.
    A. L. & C. M. Granger, of Kankakee, for appellant.
    Vernon G. Butz, of Kankakee, for appellees.
   Mr. Justice Wolfe delivered

the opinion of the court.

The First Trust Joint Land Bank, of Chicago, on May 15,1935, started suit in the circuit court of Kanka-kee county, to foreclose a mortgage for $22,600 on a farm of 226 acres in Kankakee county, Illinois. The principal defendants were Robert and Margaret Maude Worrell. There were other defendants and interests set forth in the complaint, but these are not involved in this appeal. The complaint alleges the making of a mortgage, the default in payment of interest, and that the holders of the note and mortgage had exercised their option to accelerate the debt and declare the whole debt due.

Several of the defendants filed answers to the bill. The answer of Robert and Margaret Worrell admits the defaults alleged, but denies the right of the complainant to accelerate the debt. The defendants averred that they, at the plaintiff’s request, applied for a loan from the Federal Land Bank of St. Louis, and the Land Bank Commissioner, who agreed to loan them $21,500, if that amount would pay all their debts and release the liens against their property; that the complainant agreed to accept $19,900, of this amount in full payment of its debt, and that their 20 or 30 other creditors agreed to accept five per cent of their claim in full settlement of their debts; that it took months to complete the negotiations and at much expense to the defendants; that since April 19, 1935, the plaintiff refused to accept $19,900, which the defendants aver they stand ready and willing to pay. The answer asks that the complaint be dismissed.

The plaintiffs replied to this answer and averred that its offer to accept $19,900 was solely on the condition that the payment was to be made on or before February 1, 1935, but they later extended the time of payment to March 1, 1935, and then to April 19, 1935. They deny the acceptance of the proposed settlement by all the other creditors. They deny that the defendant could obtain a loan from the Federal Land Bank of St. Louis; and they also deny mailing any agreement on April 19, 1935, to accept $19,900.

On the hearing of the case, the court entered a decree of foreclosure in the usual form, finding the facts as alleged in the bill of complaint with the following additions. “That Robert and Margaret Maude Wor-rell, at the request and inducement of plaintiff, applied to the Land Bank and Commissioner for a loan, and these agencies agreed in writing to grant them a loan of $21,500.00, provided it pay all their indebtedness in full and release all liens against the premises described in the complaint; that the said premises be offered by the said Robert Worrell and Margaret Maude Worrell as first mortgage security; that said Worrells, through their agent, John Krueger, submitted to plaintiff a request in writing to accept $19,900.00, in full settlement of said mortgage, which request plaintiff granted and by its written agreement and correspondence with these defendants and the Federal Land Bank, agreed in writing to accept the $19,900.00, in full settlement; that the said Worrells submitted a proposition of settlement to all their creditors, from twenty to thirty individuals in number, with claims aggregating approximately $10,000.00, to settle these claims for about 5 per cent thereof, and had meetings with these creditors and with plaintiff, and all of the said creditors agreed, as a result to accept a small percentage in satisfaction of their claims; that plaintiff in said meeting, by its agent, agreed orally in said meeting and later by correspondence in writing to accept $19,900.00, in full settlement of said note and mortgage; that several months were required for these negotiations with creditors, of which plaintiff was informed and to which it consented.”

The decree further finds, “that plaintiff as recently as April 4, 1935, by letter mailed to Robert Worrell and John Krueger, still agreed to accept $19,900.00, out of said loan, but subsequent to April 19,1935, plaintiff refused and still- does refuse to accept said amount in full satisfaction of said note and mortgage; that plaintiff has, by its acts and conduct, and by its written agreement herein set forth, entered into a mutual agreement with the defendants, Robert Worrell and Margaret Maude Worrell and all of their respective creditors, to accept the sum of $19,900.00, in full satisfaction of said note and mortgage, providing however that said defendants pay said sum of $19,900.00, to the plaintiff within a reasonable time thereafter.

“It is ordered and decreed, that plaintiff has a first and prior lien on the premises. The court then orders the defendants or some of them pay to plaintiff within 60 days from date of decree $19,900, with lawful interest from February 1,1935, until paid and that plaintiff accept same in full satisfaction of its note and mortgage, cancel and release same; that if defendants fail so to pay $19,900, within 60 days or to pay $25,824.82, within five days of the expiration of the 60-day period, with interest and costs, the mortgaged premises be sold to satisfy the debt, interest, costs and expenses.” It is from the latter part of this decree that this appeal is prosecuted.

The evidence discloses that the defendants did procure a compromise agreement from all of their creditors and that each had agreed to accept his proportionate amount of the loan they had obtained from the Land Bank and Land Bank Commissioner and that the plaintiff, as one of the creditors, offered to accept $19,900 in full settlement of their claim, with the proviso that it be paid by February 1, 1935. The $19,900 was not paid by the defendants to the complainant on February 15, 1935, and the complainant extended the time to March 1, 1935. Later, the plaintiff extended this time to April 19, 1935. The amount was not paid by April 19, 1935, and the plaintiff immediately gave notice to the defendants that its compromise offer was withdrawn. There is little, if any, controversy about the facts as above stated.

This court, in the case of Union Central Life Ins. Co. v. Weber, 285 Ill. App. 568, had an occasion to pass on the same questions as are presented in this appeal. In the former case, we held that the insurance company was bound by their compromise agreement, when they, the defendants, had offered to perform their part within a reasonable time of the compromise agreement.

This case differs from the Union Central Life Ins. Co. v. Weber, supra, in which there is no definite time fixed when the compromised payment should be made. In the present case, there was a definite time fixed and later extended to a definite time. The last time the payment was extended, the plaintiff notified the defendant that the payments must be made by April 19, or the offer would be withdrawn. The defendants did not comply with the plaintiff’s demand by making the payment, and under the circumstances, the plaintiff then had a right to repudiate» the compromise agreement.

The trial court should have ordered that the mortgaged premises were liable for the full indebtedness of the defendants to the plaintiff, plus the costs of suit, etc. The decree of the circuit court of Kankakee county is hereby reversed and the cause remanded to said court with directions to enter a decree in conformity with the views of this court, as herein expressed.

Reversed and remanded with directions.


author: Mr. Presiding Justice Huffman

text:
    Catherine Moore, Administratrix of the Estate of George B. Moore, Deceased, Appellee, v. Illinois Power and Light Corporation, Appellant.
    Gen. No. 9,067.
    Opinion filed September 3, 1936.
    Rehearing denied October 6, 1936.
    E. Bentley Hamilton, of Peoria, for appellant.
    Cassidy & Knoblock, of Peoria, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

This was an action under the statute by appellee as administratrix of the estate of George B. Moore, deceased, for his wrongful death, alleged to have been caused by the negligence of appellant. The deceased was a laborer 34 years of age. He was struck and killed by one of appellant’s street cars at about 30 minutes past midnight on the night of May 1,1934. He left surviving a wife, Julia Moore, an inmate of an asylum, and three young children. The trial resulted in a verdict in favor of appellee, plaintiff below, in the full statutory amount of $10,000. Judgment was entered upon the verdict and this appeal results.

The accident occurred at a point on Adams street in the city of Peoria, about 75 feet north of the intersection of this street with Evans street. Adams street runs north and south. Appellant has two sets of car tracks upon this street. The east set of tracks is for the northbound cars, and the west set of tracks is for the southbound cars. The accident occurred upon the east set of tracks. At the northeast corner of the intersection of Adams and Evans streets is located a tavern. The deceased was first seen at this tavern at about 8 o’clock on the night of May 1st. The accident happened at 12:30 that night.

The only eyewitness to the accident who testified for plaintiff was one Clarence Randall. He was employed at the same place where the deceased worked. On the night in question this witness saw and talked to the deceased at this tavern. Immediately prior to the accident, the witness saw the deceased sitting on a bench talking to another man. At about 12:30 the deceased arose from the bench upon which he was sitting, and stated to the witness Randall that he was going home. He lived about 11 or 12 blocks from this place. At this time, the witness saw the street car in question approaching the intersection of Adams and Evans streets from the south. He states he paid no particular attention to the street car at this time. He further states that the street intersection was illnminated by an electric street light. He saw the deceased proceed north upon Adams street to a place where he left the walk and started to cross the street in a diagonal manner, going in a northwest direction. The witness states that at this time the street car was passing through the intersection and was in plain view and making the ordinary noise of a street car. He says that he had talked to the deceased at numerous times, and that so far as his observation went, the deceased Avas possessed of normal hearing. He further states that as the deceased started to cross the street, he saw him look south on Adams street toward the direction from Avhich the street car was approaching; that the deceased, after he left the east curb of Adams street, walked rapidly. The attention of the Avitness was arrested as he saAv the deceased walking into the path of the car. He watched the deceased until he saw him proceed to a place near enough to the east rail of the east set of tracks to "be struck by the northeast corner of the front end of the street car. The deceased was knocked to the pavement. He was taken to the hospital, Avhere he died Avithin a short time.

The evidence is undisputed that Adams street was a paved street, level and unobstructed to the view; that a street light was burning at the intersection in question ; that the street car was brilliantly lighted by electric lights both on the inside and on the outside; and equipped with a headlight, which was burning. The testimony of the plaintiff’s witness Eandall discloses that at the time he was talking with the deceased, after he had arisen from the bench upon Avhich he was seated and stated his intention to go home, that this Avitness then saAv the street car entering the intersection of the two streets; that he saAv the deceased look south on Adams street toward the approaching car, and thereafter turn and proceed north along Adams street for a distance, when he stepped fro'm the curb into the street, taking a diagonal course across the street in a northwesterly direction, and thus proceeded until he was struck by the street car.' It is undisputed that the street at this time of night was deserted and no traffic passing thereon except the street car in question.

The deceased was a resident of the city of Peoria. He was acquainted with his surroundings. He had been at the place of the intersection of these two streets on the night in question. It is the duty of a person approaching a place of danger, to do so cautiously and with a proper degree of care for his own safety. The degree of care required is to be determined by the danger to which the individual is knowingly exposed. Illinois Cent. R. Co. v. Batson, 81 Ill. App. 142; Loettker v. Chicago City Ry. Co., 150 Ill. App. 69; Price v. Chicago & E. I. Ry. Co., 270 Ill. App. Ill, 116; Dee v. City of Peru, 343 Ill. 36, 41. While the question of ordinary care is, in the first instance, a question of fact for the jury, yet in this case there is no conflict of testimony that the street in question was paved with brick; was level and unobstructed to the view; that it had two sets of street car tracks down the center; that the street light at the intersection was burning; that the streetcar was brilliantly lighted; that the witness Randall who was talking to the deceased just before he started to cross the street saw the street car entering the intersection; and his testimony on behalf of plaintiff discloses that the deceased looked in the direction of the approaching street car before he started to cross the street.

One having an unobstructed view of a street railway is not justified in going upon the same at points between street intersections, without using reasonable diligence to ascertain if it is safe to cross the same at such time and place. The law will not permit one under such circumstances to claim that he looked and did not see the danger, when the view was unobstructed, and where if he had properly exercised his sight, he would have seen it. Dee v. City of Peru, supra, p. 42; Greenwald v. Baltimore & O. R. Co., 332 Ill. 627, 632; Bushu v. Cordera, 257 Ill. App. 234, 239. Price v. Chicago E. & I. Ry. Co., supra. In this connection it has been said that, “An instruction must not limit the exercise of care and caution of the party injured to the time when he was in danger, regardless of his conduct in putting himself in that position.” Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544, 551. The question of due care, as above stated, is in the first instance a question for the jury, when there is any evidence given on the trial, which, with all legitimate inferences that may be legally and justifiably drawn therefrom, tends to show the use of due care; but where the evidence with all legitimate inferences that may be legally and justifiably drawn therefrom does not tend to show due care, then a verdict for plaintiff should not be permitted to stand. The circumstances in this case are quite similar to those in the case of Micca v. Alton R. Co., 281 Ill. App. 216.

We are of the opinion that the verdict is against the manifest weight of the evidence. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.