text:
    The People of the State of Illinois for use of American Automobile Insurance Company, Appellant, v. Dennis J. Egan and United States Fidelity & Guaranty Company, Appellees.
    Gen. No. 30,655.
    1. Sheriffs and constables — duty and liability of officer charged with service of writ of replevin. The duty of an officer charged with the service of a writ of replevin is to exercise reasonable diligence in so doing, and liability will not attach to his acts or omissions in respect thereof unless it shall be made to appear that, under the facts of the particular case, he has been lacking in such diligence.

      2. Sheriffs and constables — sufficiency of evidence to show want of diligence on part of bailiff in serving writ of replevin. Evidence in an action upon the bond of a bailiff for his alleged negligent failure to serve a writ of replevin held to warrant a finding that the officer was not guilty of negligence as alleged.
    3. Appeal and error — presumptions in favor, of finding of court. The finding of a court is entitled to the same presumptions as the verdict of a jury.
    4. Appeal and error — conclusiveness of verdict upon reviewing court. A verdict will not be set aside where there is a contrariety of evidence, and the facts and circumstances, by fair and reasonable intendment, will authorize the verdict, notwithstanding it may appear to be against the strength and weight of the testimony.
    5. Trial — propriety of refusal of court to malee special finding of fact not controlling ultimate issue nor inconsistent with finding of court thereon. Refusal of a trial court to make a requested finding of fact is not error where such fact, if found, would not be controlling on the ultimate issue of the case, nor inconsistent with the finding of the court thereon.
    6. Appeal and error — presumption as to nonconsideration of improper evidence by court trying cause without jury. Where a case has been tried by a court without a jury, it will be presumed that the court did not consider improper evidence.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. John A. Swanson, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed June 14, 1926.
    Rehearing denied July 2, 1926.
    Loucks, Eckert & Peterson, for appellant; A. R. Peterson and Tom Leeming, of counsel.
    McInerney & Power, for appellees.
   Mr. Justice Johnston

delivered the opinion of the court.

This is an action brought by the American Automobile Insurance Company, a corporation, the plaintiff, against Dennis J. Egan and the United States Fidelity and Guaranty Company, the defendants, on the bond of Egan as bailiff of the municipal court of Chicago, to recover damages in the sum of $3,000 for the alleged negligence of Egan in failing to replevy an automobile owned by the plaintiff.

The case was tried before the court without a jury. The court found in favor of the defendants and entered judgment on the finding. From the judgment the plaintiff has prosecuted this appeal.

The principal grounds on which the plaintiff asks for a reversal of the judgment are (1) that the judgment is manifestly against the weight of the evidence; (2) that the court erred in its ruling in regard to a special finding of fact requested by the plaintiff; and (3) that the court admitted incompetent evidence prejudicial to the plaintiff.

The ultimate fact to be determined on the evidence is whether the defendant Egan was negligent in failing to replevy the automobile.

According to the general rule the defendant was under a legal duty to exercise reasonable diligence in serving the writ of replevin (Dunlap v. Berry, 5 Ill. [4 Scam.] 327, 331; Gilbert v. Gallup, 76 Ill. App. 526, 530), and he is not liable unless he has been lacking-in such diligence. 35 Cyc. p. 1628. What constitutes reasonable diligence depends upon the particular facts in each case. Guiterman v. Sharvey, 46 Minn. 183, 184; State v. Porter, 1 Har. (Del.) 126, 127.

In the case at bar the evidence shows that the automobile had been stolen from the original owner, Walter S. Baer, on December 10,1920; that after the theft of the automobile Baer executed a bill of sale of the automobile to the plaintiff; that a police officer of the city of Chicago recovered the automobile on June 25, 1921, and delivered it to a man named Clemens at the Municipal Pier of the city of Chicago, who was an employee in the custodian’s department of the city of Chicago, and who was in charge of automobiles that were kept by the custodian at the Municipal Pier; that the automobile was seen at the Municipal Pier by Baer and Charles Briem, an employee of the plaintiff, some time between July 4 and July 7, 1921, and was identified by Baer; that on July 7,1921, the writ of replevin was delivered to George H. Woods, chief deputy bailiff of the city of Chicago.

On the questions as to what directions, if any, were given to Woods when the replevin writ was delivered to him, and the manner in which the writ was served, the evidence is conflicting.

On behalf of the plaintiff his atttorney, Bernard W. Vinissky, testified that on July 7, 1921, accompanied by Briem, he went to the bailiff’s office between the hours of 9:30 and 9:45, gave the deputy bailiff in charge of the levy department the writ of replevin and an indemnity bond; that he paid $3.50 as “fees” for the service of two defendants, Charles C. Fitzmorris, chief of police of the city of Chicago, and Joseph F. Kapp, city custodian of the city of Chicago, both of whom were named in the writ of replevin; that he talked first to the deputy bailiff in charge of the levy department about the service of the writ of replevin; that the deputy bailiff referred him to Chief Deputy Woods; that he saw Woods and told him that he, Vinissky, had a replevin writ for an automobile in°the care of the custodian at the Municipal Pier and that he wanted to get the automobile “right away”; that Briem would identify the automobile and would take a deputy bailiff with him in an automobile to the Municipal Pier; that Woods asked who the defendants were and that he, Vinissky, handed Woods the writ of replevin; that Woods said, “We haven’t any man to go with you now”; that he, Vinissky, said, “When can I get' a man?”; that Woods said “he wouldn’t take the automobile anyway”; that it was “in the custody of the custodian of police”; that he, Vinissky, said he knew the automobile would be “there”; that it was taken from the man who stole it; that Woods said “in due course it will be served on the chief of police”; that Woods did not send anyone with him, Vinissky, to get the automobile.

On cross-examination Vinissky testified that Woods said: “I want to get you a special man; we don’t take them away from the police department; we merely leave a copy of the writ with the chief’s office”; that Woods said he would not send a man; that he, Vinissky, then went down to the custodian’s office. Vinissky was cross-examined as follows:

“Q. Do you know how much the bailiff’s office charge for the serving of one defendant in a replevin writ?
“A. To my knowledge $3.50.
“Q. Do you know what the charges are?
“A. I don’t remember.
“Q. Don’t you know it is $3.50 for the service of one defendant?
“A. I told him I wanted to serve three defendants.
“Q. Who did you tell that to?
“A. The filing clerk.
“Q. And you paid $3.50?
“A. $3.50.”

Vinissky further testified on cross-examination that after he went down to the custodian’s office he never went back to the bailiff’s office, and never had any further dealings with the bailiff’s office in connection with the case.

Charles Briem, an employee of the plaintiff, testified on behalf of the plaintiff that on July 7, 1921, he went with Vinissky to the bailiff’s office and from there he and Vinissky went to the office of the city custodian. He did not testify as to what took place between Vinissky and Woods.

On behalf of the defendants, George H. Woods, chief deputy bailiff, testified on direct examination that he had probably seen Vinissky; that he never told Vinissky that he wouldn’t send a man “over there”; that to his recollection Vinissky did not ask him to send a man; that Vinissky may have; that he, 'Woods, has some recollection of the transaction; that he went down to the custodian’s office [in the City Hall] and was told by Captain Norton, a police officer, who had charge of the automobile matters, that “they didn’t have the car at the Pier”; that Joseph C. Crawford, a deputy bailiff, was with him, Woods; that he, Woods, thinks “there was some man to go to the Pier to turn the car over to if we got it”; that there was some man there [in the custodian’s office in the City Hall] who was interested in the writ; that Norton said he had telephoned to the Pier and said that the car was not there; that Crawford served the writ of replevin on Chief of Police Fitzmorris, but he is not sure of that; that “about the talk he [presumably Vinissky] says I had with him, I told him that the police department and the City of Chicago wanted us to serve those writs in the chief’s office so they wouldn’t be all over Chicago, and the corporation could get some service. For that reason we served the writ in the chief’s office. ’ ’

On cross-examination Woods testified that he never went to the custodian’s office at the Municipal Pier to get the automobile; that Crawford had the writ; that he, Woods, thinks that Briem was along there in the chief’s office; that he might be mistaken; that he knows somebody was there connected with the writ representing the plaintiff; that he has no recollection of any particular conversation with Vinissky on July 7, 1921; that Vinissky may have talked to him; that he, Woods, has no recollection about that particular auto-. mobile.

Joseph C. Crawford, deputy bailiff, testified on be•half of the defendants that he got the writ of replevin on July 7, 1921, the day he made the service; that on the date of the writ he served the writ on Chief of Police Fitzmorris, who directed that the writ be turned over to Captain Norton; that a lawyer for the plaintiff was with him, Crawford, in the chief’s office; that Norton said, “We have no such car by that number”; that some representative of the company was with him, Crawford, at the time; that he thinks it was Vinissky and that he thinks there was another man along with him, Vinissky; that he is “pretty sure” there were two there that day; that his instructions were to serve the chief of police; that the man who represented the plaintiff told him whom to serve — in fact the man said that writ runs against the chief of police and that is the way the writ reads. On cross-examination Crawford testified that when he went to the office of the chief of police he thinks there were two people with him; that he remembers now one person there with him at that time; that it was Vinissky; that he had seen him several times before that day; that he, Crawford, read the writ to the chief of police ; that he, Crawford, never went to the Municipal Pier to find the automobile; that he spoke to Vinissky to find out where the automobile was; that Vinissky did not tell him it was at the Municipal Pier; that Vinissky said the “police department had got it”; that all stolen cars are not kept in the city custodian’s office on the Municipal Pier; that they are kept at every station in Chicago; that Vinissky did not himself know where the automobile was on July 7, 1921; that before he, Crawford, went to the office of the chief of police he asked Vinissky where the automobile was and he said he didn’t know; that he, Crawford, said to Vinissky, “Old man, you heard what Captain Norton said, that he has no car by that number”; that Vinissky and Captain Norton started to talk and that he, Crawford, went out of the office.

On rebuttal Briem testified for the plaintiff that he never in the presence of Woods nor anyone else went to Chief Fitzmorris ’ office in connection with the replevin suit; that he did go to the custodian’s office in the City Hall; that there was no bailiff with him; that he just went there to be there; that he did not go to the office of the chief of police; that he went to the custodian’s office in the City Hall with Vinissky to be an assistant in case he, Vinissky, wanted to send him somewhere. On rebuttal Vinissky, on behalf of the plaintiff, testified that on the day the writ was served he did not go with the deputy bailiff or anybody else to the office of the chief of police, and that nobody went there at his instruction; that nobody was in charge of the service of the writ for the plaintiff except Briem and himself; that he, Vinissky, said that he wanted to serve two defendants; that he did not say to serve one defendant; that Woods “said $3.50”; that he, Vinissky, assumed “it was $1.75 apiece”; that he told Crawford that the automobile was at the Municipal Pier; that he never told Crawford that he, Vinissky, didn’t know where the automobile was; that he never had any conversation with Crawford in reference to the automobile; that after he had placed the writ for service he went down to the custodian’s office [in the City Hall] with Briem; that he, Vinissky, didn’t wait for the deputy bailiff because Woods said “it will take the regular course and the man will leave a copy in the Chief’s office.”

It is provided by statute that the fees of the bailiff of the municipal court in cases of replevin shall be $1.75 for service on each defendant, and a further sum of $1.75 when a levy upon or seizure of property is to be made. Section 56, Municipal Court Act [Cahill’s St. 1925, ch. 37, [[449, subd. 6].

We have set out the testimony at length on the controlling issues, and the conflicts in the testimony are so direct and obvious that no discussion of the evidence is required. In our opinion there is ample evidence to support the finding of the court. The finding of the court is entitled to the same presumptions as the verdict of a jury. Fisk v. Sopping, 169 Ill. 105, 108. As to the verdict of a jury where the evidence is conflicting, it was said in the case of Illinois Cent. R. Co. v. Gillis, 68 Ill. 317, 319: “If any rule of this court can be so well established as to be neither questioned nor require the citation of authorities to support it, it is that a verdict will not be set aside whenever there is a contrariety of evidence; and the facts and circumstances, by fair and reasonable intendment, will authorize the verdict, notwithstanding it may appear to be against the strength and weight of the testimony.” To the same effect are the following cases: Bradley v. Palmer, 193 Ill. 15, 89; Carney v. Sheedy, 295 Ill. 78, 83; Blackhurst v. James, 304 Ill. 586, 592. It has also been held that a reviewing court should not set aside the verdict of a jury merely because there may be a doubt of the correctness of the verdict. Illinois Cent. R. Co. v. Cowles, 32 Ill. 116, 121; De Forrest v. Oder, 42 Ill. 500, 501.

Counsel for the plaintiff contend that the testimony of Crawford is inherently improbable. We cannot say, as a matter of law, that it is inherently improbable. It was the province of the trial court to determine the credibility of the witnesses, and the probability or improbability of their testimony, and a court of review will not interfere with the finding of the court unless it is manifestly against the weight of the evidence.

The plaintiff has assigned error on the refusal of the court to find specially that on July 7, 1921, the automobile was in the possession of Joseph F. Kapp, city custodian. Section 61 of the Practice Act [Ca-hill’s St. ch. 110, [[ 61] provides that upon a trial by the court, the court shall find specially upon any material question or questions of fact, which shall be submitted in writing by either party before the commencement of the suit. We have not been referred to any case in which the Supreme Court has construed the phrase “material question or questions of fact” as used in section 61. But in section 79 of the Practice Act [Cahill’s St. ch. 110, ¶ 79] providing for special findings by the jury, the identical phrase “material question or questions of fact” is used, and the Supreme Court has construed the phrase to mean ultimate facts upon,which the rights of the parties directly depend. Chicago & N. W. Ry. Co. v. Dunleavy, 129 Ill. 132, 143; Smith v. Sanitary Dist. of Chicago, 260 Ill. 453, 464; Wicks v. Cuneo-Henneberry Co., 319 Ill. 344, 350. It is also the rule in regard to special interrogatories submitted to the jury that such interrogatories are not proper unless some answer responsive thereto would be inconsistent with the general verdict. Wicks v. Cuneo-Henneberry Co., supra (pp. 349, 350). And the inconsistency must be so irreconcilable as to be incapable of being removed by any evidence under the issues. Devine v. Federal Life Ins. Co., 250 Ill. 203, 206.

We do not think that the court erred in refusing to grant the plaintiff’s request for the special finding. Such finding would not be an ultimate or controlling finding of fact. It would be an evidentiary fact. Even though it should be assumed for the sake of argument that the automobile was in the possession of the city custodian on July 7, 1921, that fact aloné would not be controlling on the ultimate question whether in the circumstances the bailiff exercised reasonable diligence in serving the writ of replevin, and would not be inconsistent with the finding of the court.

Counsel for the plaintiff further contend that the court erred in admitting, over the plaintiff’s objection, hearsay testimony as to what Captain Norton told Woods and Crawford in regard to information he received from the custodian at the Municipal Pier to the effect that the automobile was not there.

Since the case was heard by the court without a jury, it will be presumed that the court did not consider improper evidence in reaching a decision. Merchants’ Despatch Transp. Co. v. Jœsting, 89 Ill. 152, 155; Kreiling v. Nortrup, 215 Ill. 195, 198; Pratt v. Davis, 224 Ill. 300, 305, 309. Independently of the evidence objected to there is sufficient evidence to sustain the finding of the court.

For the reasons stated the judgment of the trial court is affirmed.

Affirmed.

Hatchett, P. J., and Me Surely, J., concur.


source: Caselaw Access Project

author: Mr. Justice Johnston

license: Public Domain

text:
    Odette H. Dire, Appellant, v. Balaban and Katz, Inc., Appellee.
    Gen. No. 30,716.
    1. Exhibitions and shows — duty of proprietors in respect of safety of premises. Proprietors of theaters are not insurers of the safety of their patrons, but are required to use only ordinary care to make the premises as reasonably safe as may be consistent with the practical operation of the business.
    2. Exhibitions and shows — sufficiency of evidence to warrant direction of verdict in action for injury to theater patron by fall down stairway. Evidence in an action for injury to a theater patron by falling down a stairway leading to a rest room, construed in the light most favorable to plaintiff, held as a matter of law not fairly to tend to prove any negligence on the part of the proprietor either in regard to the construction or maintenance of the stairway.
    McStjbely, J., dissenting.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed June 14, 1926.
    Rehearing denied and opinion slightly modified July 2, 1926.
    Albert Bettcher and Forest Garfield Smith, for appellant.
    George A. Schneider, Stanley L. Shetler and Cassels, Potter & Bentley, for appellee.
   Mr. Justice Johnston

delivered the opinion of the court.

This is an action brought by Odette M. Dire, the plaintiff, against Balaban and Katz, a corporation, the defendant, to recover damages for personal injuries sustained by the plaintiff in a fall on a stairway in a theater controlled and operated by the defendant in Chicago, which stairway, it is alleged, the defendant negligently failed properly to construct and to maintain.

The case was tried before the court and a jury. At the close of the plaintiff’s case the court peremptorily directed the jury to find the defendant not guilty. The court entered judgment on the verdict and the plaintiff appealed from the judgment.

The only question to be determined is whether the plaintiff’s evidence, if taken as true and most favorably considered for her, fairly tends to prove the defendant guilty of negligence. If there is no evidence of negligence, or if there is but a scintilla of evidence, the jury should have been directed to return a verdict for the defendant. Libby, McNeill & Libby v. Cook, 222 Ill. 206, 213; Kelly v. Chicago City R. Co., 283 Ill. 640, 642.

The evidence in regard to the question of negligence for the plaintiff consisted of the testimony of the plaintiff and her husband, Nicholas J. Dire.

The plaintiff testified on direct examination that on the evening of January 27, 1923, she and her husband attended the show at the theater of the defendant; that it was a “very slushy evening”; that they had seats on the main floor; that she had been to the theater many times before, but that this occasion was the first time she had ever had a seat on the main floor; that on previous occasions she had sat in the balcony; that after the performance, on the way out she suggested to her husband to inquire if there was a rest room down stairs; that he inquired of one of the ushers, who directed them downstairs; that there is a landing at the foot of the first flight of the stairs; that she started down the stairs on the right-hand side, “right next to the railing,” reached the landing, and “went off the landing there (indicating) with my right foot”; that she remembers “her right foot touching the first step,” but that it “did not seem to get ahold on it”; that she “recalls striking the first step” on her “back side,” and that then she “rolled down that one step to the floor”; that when she started to fall she “put out” her “right hand to grab the railing,” but that “there was no railing there”; that at the time people were going up the stairs on her left; that she has been back to the theater to look at the stairway; that if you stand on the first step down, and put your hand out to guide yourself, it will touch the railing; that in stepping from the landing down to the first step if you put your hand out it will not reach the railing; that she believes the railing “only goes down to the middle of the second step, that it turns there to the side.”

On cross-examination she testified that as she went down the stairway she was holding on the railing slightly; that she fell as she took the first step down from the landing; that her feet went down towards the foot of the stairway; that she does not know whether her feet went right straight down; that she knows that she went down, but does not know just how she went; that there were no people in front of her going down the stairway; that there were a number of people starting up the stairway.

Nicholas J. Dire, the husband of the plaintiff, testified on direct examination that they sat on the main floor of the theater for the first time; that “the stairway leading to the rest room is of slippery marble and not carpeted”; that the upper stairs leading to the seats are carpeted; that he and his wife went downstairs to the rest room directed by one of the attendants, who called his attention to the stairway; that on this particular evening it was raining or snowing outside, sort of slush; that his wife was on his right and was close to the railing; that the accident occurred as his wife started to step from the landing; that she was about to step off with her right foot and suddenly she slipped from the landing to the first step, “at the first step here” (indicating); that “her foot suddenly gave way and as she went forward she endeavored to right herself by grasping for the railing and there was no railing there, and she went down”; that she fell to the bottom of the stairway (five steps); that her feet were on the lower floor and her head was up the stairway.

On cross-examination he testified that as his wife went down the stairway, “occasionally she would rest her hand” on the side railing and “then off as an ordinary person would”; that he had her left arm slightly; that as he got to the middle of the landing he released his hold on her; that he was not expecting her to fall; that he endeavored to protect her from falling by reaching out for the railing, but there was no railing there; that if there had been a railing there she would have broken her fall. This question was asked Dire: “As she stepped off this landing, will you just tell how she went down? ’ ’ Dire answered: “Well, I don’t recall it, so consequently I could not tell you how she went down. The only thing I know is she went down.”

In addition to the description of the stairway that has been given a further description is as follows: At the landing on the side of the stairway there was a large pillar. A railing curves around the pillar but does not extend completely around it. The first step from the landing is about 6 inches wide at the pillar and about 8, 9 or 10 inches wide at about a foot and a half down from the pillar. The tread of the steps overhangs the riser ahont 1% inches. The overhanging part slants down and the face of the steps is a curve. A photograph of the stairway was introduced in evidence and appears in the record.

Counsel for the plaintiff contend that the proprietor of a theater is held to the same degree of care as is required of a common carrier of passengers; that is, the highest degree of care consistent with the practical operation of the business. We have not been referred to any decision of either the Supreme Court of Illinois or the Appellate Courts in which such a rule is announced. In the case of O’Callaghan v. Dellwood Park Co., 242 Ill. 336, it was held that a company operating an amusement device known as a scenic railway was required to exercise the same degree of care to prevent injury to passengers as is imposed on common carriers of passengers. We do not think, however, that the analogy between a scenic railway and a common carrier of passengers fairly and reasonably could be extended to include theaters. Proprietors of business houses are held only to the exercise of reasonable and ordinary care in the maintenance and supervision of stairways on their premises. Davis v. South Side Elevated R. Co., 292 Ill. 378, 384; Pauckner v. Wakem, 231 Ill. 276, 279.

The rule requiring the highest degree of care on the part of railroad companies for the protection of passengers does not apply to station buildings and other appurtenances of railroad companies. As to stations and other appurtenances, railroad companies are required to exercise only ordinary care to keep them in a reasonably safe condition. Davis v. South Side Elevated R. Co., supra (p. 382).

Although the question as to what degree of care is imposed on proprietors of theaters has not been decided in Illinois, the question has been determined in other jurisdictions. In our opinion, according to the weight of authority the correct rule is that proprietors of theaters are not insurers of the safety of their patrons, but are required to use only ordinary care to make the premises as reasonably safe as may be consistent with the practical operation of the business. Glynn v. Lyceum Theater Co., 87 Conn. 237, 241; Hollenbaek v. Clemmer, 66 Wash. 565, 566; Andre v. Mertens, 88 N. J. L. 626, 628; Dalton v. Hooper, — Tex. Civ. App. —, 168 S. W. 84, 85; Valentine Co. v. Sloan, 53 Ind. App. 69, 72; 26 R. C. L. sec. 15, p. 714; 21 Amer. & Eng. Encyc. of L., p. 472, 2nd ed.; 38 Cyc. of L. and P., pp. 268, 269. To the same effect are the following analogous cases: Schofield v. Wood, 170 Mass. 415, 418; Fox v. Buffalo Park, 21 App. Div. 321, 47 N. Y. Supp. 788, 792; Williams v. The Mineral City Park Ass’n, 128 Iowa 32, 37, 38; Smith v. Cumberland County Agricultural Society, 163 N. C. 346, 350; Greene v. Seattle Athletic Club, 60 Wash. 300, 303.

In the case at bar, taking the evidence as true and construing it most favorably for the plaintiff, we are of the opinion, as a matter of law, that the evidence does not fairly tend to prove that the defendant was negligent, either in regard to the construction or the maintenance of the stairway.

No expert testimony was introduced to show that the stairway was improperly or negligently constructed, and the testimony of the plaintiff and her husband relating to the construction of the stairway fairly and reasonably construed does not tend to prove that the stairway was improperly or negligently constructed. The only evidence that possibly could be considered as relevant to the question of negligent construction is that the steps consisted of “slippery marble”; that the railing extended only to the second step below the landing; that the landing at the pillar was about six inches in width; that the overhanging part of the steps curved down. In our view this evidence in itself alone is insufficient to show an improper or negligent construction of the stairway. We think it may be said, as a matter of law, that this evidence reasonably and fairly construed does not tend to establish any obvious or apparent danger in the construction of the stairway. This conclusion is supported by the testimony of the plaintiff’s husband. He testified that he was not expecting his wife to fall; that he had her left arm as they were descending the part of the stairway leading to the landing, but that he “released his hold on her” when they “got down to the middle, that is, of the landing.” It is clear, therefore, that the husband did not see anything dangerous in regard to the construction of the stairway. Furthermore, neither the plaintiff nor her husband is able to tell just what caused the plaintiff to fall. Plaintiff testified as follows: “Well, I went off the landing there with my right foot. I do remember my right foot touching the first step, but it did not seem to get hold of it. * * * I went down. My foot went out and my body went backwards.”

The testimony of the plaintiff’s husband is as follows: “Q. As she stepped off this landing, well you just tell how she went down. A. Well, I don’t recall it, so consequently I could not tell you how she went down. The only thing I know is, she went down.” They both testified that she fell as she was stepping with her right foot off of the landing. They did not testify what there was about the landing that would have caused her to fall. They did not testify to any facts or circumstances which would justify the inference that she slipped and fell due to the fact that the composition of the stairway was “slippery marble,” and reasonably we cannot indulge the presumption that she slipped and fell merely because the composition of the stairway was “slippery marble.” Evidence showing a causal connection between the slippery marble and the fall would be necessary before such a presumption legitimately would be permissible and there are no such facts or circumstances in evidence. On the contrary the evidence negatives the presumption that the fall was due to the “slippery marble.” The plaintiff had descended the steps of the stairway leading to the landing’, and if those steps had been slippery she would have observed that fact. Yet she did not testify that she experienced any difficulty in descending those steps. Furthermore, if she had fallen because of the slipperiness of the steps, undoubtedly she would have been aware of the fact. She would have known that she slipped. In considering the question whether it may be inferred that the fall was caused by the slipperiness of the steps, it must be borne in mind that it is not contended by the plaintiff that the steps were worn slippery. The declaration merely alleges that the stairway was constructed of “marble or stone,” and the evidence tends to show that only the material of which the stairway was composed was slippery, and not that the slipperiness was due to' wear. There is no evidence that the material of which the stairway was composed was not material customarily used in such construction.

In regard to the question whether the stairway was negligently maintained, we are of the opinion that the evidence does not fairly tend to establish any negligence. The evidence does not show any specific fact or circumstance from which reasonably it could be inferred that the stairway was negligently maintained. The evidence does not show that any of the steps were worn or had holes or depressions in them. The evidence does not show that anything that might have caused the accident was allowed to remain on the stairway. The evidence does not show that the stairway was not properly lighted. The only fact that has any relevancy whatever to the question whether the stairway was negligently maintained was that it was not carpeted. But in our opinion that fact alone would not make a prima facie case of negligence. As we view the evidence it does not show anything in regard either to the construction or the maintenance of the stairway which would cause an ordinarily careful person to fall.

Counsel for the plaintiff attempt to supply the failure of the evidence to show any specific negligence by invoking the doctrine of res ipsa loquitur. We clearly are of the opinion that the maxim res ipsa loquitur does not apply. In the case of Feldman v. Chicago Rys. Co., 289 Ill. 25, the court said (p. 35):

“The rule is that negligence is never presumed, but that the circumstances surrounding the case where the maxim of res ipsa loquitur applies, amount to evidence from which the facts of negligence may be found; that is, in a case within the maxim of res ipsa loquitur, the proof of the circumstances of such case and of the injury constitutes a prima facie case of negligence, and will justify a verdict unless such prima facie case is overcome by proof showing that the party charged is not at fault.”

In the case at bar in our view “the proof of the circumstances of” the case and “of the injury” does not constitute “a prima facie case of negligence.”

Counsel for the plaintiff have cited the following cases in support of their contention that the evidence is sufficient to show negligence on the part of the defendant: Scott v. University of Michigan Athletic Ass’n, 152 Mich. 684; Schofield v. Wood, supra; Stair v. Kane, 156 Fed. 100; Weiner v. Scherer, 64 Misc. 82, 117 N. Y. Supp. 1008; Nephler v. Woodward, 200 Mo. 179; Bennett v. Jordan Marsh Co., 216 Mass. 550. We think that the cases are not in point; that the facts in all of the cases are materially different from the facts in the case at bar. In all of the cases there were facts from which specific negligence could be inferred. In the case of Scott v. University of Michigan Athletic Ass’n, supra, evidence showed that the accident was caused by the collapse of a stand or bleacher erected by the defendant. In the case of Schofield v. Wood, supra, the accident was due to the falling of the guardrail in front of the gallery in a public hall. In Stair v. Kane, supra, the accident was caused by the falling of a fire extinguisher which was kept on the sill of an open window at the side of a stairway leading to the gallery of a theater. In the case of Weiner v. Scherer, supra, the accident was caused by the falling of a balcony in a moving picture house. In the case of Nephler v. Woodward, supra, the accident was caused by a hole in the carpet on the floor of a theater. In the case of Bennett v. Jordan Marsh Co., supra, the accident was due to the negligence of a proprietor of a store in allowing the treads on a stairway in the store to wear smooth and to become rounded and slippery.

For the reasons stated the judgment of the trial court is affirmed.

Affirmed.

Hatchett, P. J., concurs.

MoSurely, J., dissents.


text:
    International Mutual Fire Insurance Company, Appellee, v. Griff S. Carrington, Appellant.
    Gen. No. 31,144.
    1. Injunctions — restraining breach, of negative covenant in con* tract of employment. The rule that equity will not enjoin the breach of a negative covenant where the effect of such decree will be to compel performance of a contract without mutuality of obligation, has no application to a covenant in a contract of employment of an insurance agent whereby he agrees not to solicit insurance for himself or for another during a period of one year after the termination of his employment with the complainant, in the territory for which he was employed.

      2. Injunctions — when equity will not refuse to restrain breach of negative covenant in contract of employment as without consideration. Equity will not refuse to enjoin the breach of a negative covenant in a contract of employment upon the ground that it was without consideration, where by the express terms of the contract such covenant was a part of the consideration for the employment.
    3. Injunctions — when equity will not refuse to restrain breach of negative covenant in contract of employment as harsh and unfair. A covenant in the contract of employment of an insurance agent whereby he agreed not to solicit insurance for himself or for another during a period of one year following the termination of his employment by the complainant, in the territory for which he was employed, is not so harsh and unfair that equity will refuse to enjoin its breach, where it appears that the defendant, an intelligent business man, entered into the contract voluntarily and as the result of negotiations in which the parties dealt on equal terms.
    4. Injunctions — sufficiency of answer to bill seeking relief against breach of covenant to raise question as to performance by complainant. An allegation in the answer to a bill seeking an injunction against breach of a negative covenant in an employment contract, that “complainant failed and neglected to pay him (defendant) all the commissions, salaries and bonuses he was led to believe he would receive,” was not an averment sufficient to raise the question whether there had been full performance of the contract on the part of the complainant.
    Interlocutory appeal by defendant from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed June 14, 1926.
    Ekern & Meyers and Luther F. Binkley, for appellant.
    Thomas W. Reilly, for appellee.
   Mr. Justice Johnston

delivered the opinion of the court.

This is a bill in equity brought by the International Mutual Fire Insurance Company, the complainant, against Griff S. Carrington, the defendant, to restrain the defendant from soliciting insurance for any other person, firm, association or corporation than the complainant, in certain territories in the city of Chicago, in violation of the defendant’s covenant not to solicit insurance in such territories.

Motion was made by the complainant for a temporary injunction. A hearing was had on the bill, answer and affidavits, and the court granted a temporary injunction as prayed for in the bill. From the order granting the temporary injunction, the defendant has prosecuted this appeal.

The principal grounds on which the defendant asks for a reversal of the order are (1) that there was a want of mutuality in the contract, and that where there is a want of mutuality in a contract equity will not enjoin the breach of a negative covenant; (2) that the covenant sought to be enjoined was without consideration; (3) and “that the entire contract is so hard featured, palpably one sided and unfair that a court of equity will not grant any relief whatever under it. ’ ’

The pertinent allegations in the bill, as they appear in the aostract, are in substance as follows: That the complainant “is an insurance corporation with its principal office in the City of Chicago; that long prior to, on October 8, 1925, and ever since it has been engaged in writing fire insurance, the greater portion of which is on the industrial plan; that in order to do so it employs agents to solicit applications for insurance and collect premiums; that each agent is assigned to a particular territory called a ‘debit’; that such agents became familiar with the company’s business and the people who live in the ‘debit’ and have more or less influence over such people in matters of insurance, and that such agents, if not prevented are in a position to do injury to complainant’s business in such ‘debit’; that the building of a ‘debit’ is very expensive, and becomes very valuable to the company in that premiums are collected weekly from persons holding policies in such ‘ debit, ’ and that to interfere with such ‘debit’ and cause policy holders to drop their policies will result in irreparable injury to complainant; that as part of the consideration of complainant’s employment of its agents it requires each agent to agree that he will not for a period of one year, after the termination of his employment, solicit insurance for himself or any other person in the ‘debits’ on which he has worked, nor interfere with the business of the complainant, nor directly or indirectly induce any of complainant’s employees to abandon complainant’s employment; that on October 8, 1925, complainant employed defendant as an agent in ‘debit’ No. 4, which was from 26th street to 30th street and from Indiana avenue to Wentworth avenue, in the City of Chicago, and the City of Chicago Heights; that he was employed by contract which is attached to the complaint and made part thereof; that the defendant contrary to the terms of said contract did solicit insurance for other companies during the time he was employed by complainant; that the defendant terminated his services with complainant on January 11, 1926, and entered the employ of others, namely, United Lloyds of America and Meyers-Campbell Co. for whom defendant is now soliciting insurance in the ‘debit’ for which he worked for complainant, and is trying to induce complainant’s policy-holders to take policies in the companies for which he now works; that complainant is advised that defendant is falsely stating to certain of complainant’s policyholders and others that complainant has or is going out of business; that the company for which defendant is working has taken over complainant and its business, for the purpose of inducing such persons to drop complainant’s policies and take others; that unless defendant is restrained by injunction he will continue to so do, as a result whereof, complainant will suffer irreparable injury, because defendant is insolvent.”

The .covenant in which the defendant agreed not to solicit insurance is as follows:

“I agree that in the event my services with the Company should be discontinued at any time, I will not solicit fire insurance, for myself or for any other person or corporation, in any territory in which or any debit on which I may have worked for the International Mutual Fire Insurance Company during this employment, for a period of one year from the termination of my employment; nor will I interfere with, or procure or assist any other person to interfere with any of the business of the International Mutual Fire Insurance Company. I agree that during the year following the termination of this employment I will not, directly, or indirectly, induce or attempt to induce any employe of said Company to quit or abandon the Company’s employ for any purpose whatsoever. In view of the practical impossibility of determining by computation or legal proof the exact amount of damages resulting to the Company from a violation by me of the provisions of this section, the sum of $300.00 is hereby agreed upon as the liquidated damages for my breach of this section of this agremeent, which I agree to pay on demand, and the Company shall have the right to set off said amount against any amount due or to become due from it to me. It is mutually understood that the fixing of said amount as liquidated damages shall not be construed as a release or waiver by the Company of any right to proceed in equity or otherwise to compel the fulfillment or prevent the violation by me of any of the provisions of this section.”

In regard to the allegations of the bill counsel for the defendant in their brief state their position as follows:

“We do not * * * attack the truthfulness of the allegations of the bill of complaint, but limit our arguments to their sufficiency as a matter of law and equity to justify any relief whatever. We readily can see that the statements of fact set forth in the bill of complaint are such that, if true, they would justify an injunction, then the issuance of an injunction is a matter of sound discretion of the trial court regardless of whether or not they are denied by answer, affidavit or otherwise, but counsel has not cited nor have we been able to find any case holding that the trial court has any discretion whatever to grant a temporary injunction, where the matters and things alleged in the bill of complaint are not sufficient as a matter of law to justify the relief sought.”

We do not think that the contention of counsel for the defendant that a court of equity should not enjoin the breach of the negative covenant in the case at bar is correct. The argument of counsel for the defendant proceeds on the theory that in enforcing the negative covenant the court is, in effect, compelling a specific performance of the contract, and that the rule is well settled in Illinois that a contract should not be enforced specifically unless there is such .mutuality in its obligations that it may be enforced by either party against the other. In support of their contention counsel for the defendant rely mainly on the case of The Bartholomae & Roesing Brewing & Malting Co. v. Modzelewski, 269 Ill. 539, 545, 546. We recognize the rule that a contract should not be specifically enforced unless there is such mutuality in its obligations that it may be enforced by either party against the other. But in our opinion the negative covenant in the case at bar is not such that the enforcement of it would be, in effect, compelling the specific performance of the contract. In the negative covenant the defendant simply agreed not to solicit insurance in the specified territories after the termination of the contract. When the defendant was enjoined from soliciting insurance in those territories, he was not by such injunction, in effect, compelled to do any affirmative specific act. He was merely enjoined from doing a particular act, without any affirmative implications following upon such injunction. In other words, the negative covenant does not connote an affirmative act.

Since we are of the opinion that the element of specific performance is not involved in the negative covenant, the rule that a contract will not be enforced specifically unless the remedy of specific performance is mutual is not applicable to the case at bar.

It has been held in cases involving breaches of negative covenants, which are analogous to the negative covenant in the case at bar, that injunction would lie to restrain the breaches of such negative covenants. Southern Fire Brick & Clay Co. v. The Garden City Sand Co., 223 Ill. 616, 626; Andrews v. Kingsbury, 212 Ill. 97, 98.

The case of The Bartholomae & Roesing Brewing & Malting Co. v. Modzelewski, supra, cited by counsel for the defendant, is materially different from the case at bar. In the former case, in a contract between the Brewing Company, the complainant, and the defendants, the complainant agreed to manufacture and sell its particular kind of beer to the defendants, and the defendants agreed to use continuously and exclusively the beer of the complainant. The defendants violated their agreement by refusing to buy beer from the complainant, and by making arrangements to buy beer from another company. A motion was made by the complainant to restrain the defendants from purchasing beer from any other company than the complainant. The court held that injunction would not lie for the reason that the effect of the injunction would be to compel a specific performance of the contract by the defendants, and that there was no mutuality of the remedy by specific performance as a court of equity would be powerless to compel the complainant to sell the defendants its beer “without taking over and supervising the business” of the complainant. In distinguishing the case of The Bartholomae & Roesing Brewing & Malting Co. v. Modzelewski, supra, from the case of Witkowsky v. Affeld, 283 Ill. 557, the court said in speaking of the bill in the latter case (p. 575): “If the sole purpose of this bill was to enforce a contract specifically, and was, in effect, only a prayer for mandatory injunction to enforce a negative covenant in a contract, requiring specific performance in order to so enforce it, then” the case of The Bartholomae & Roesing Brewing & Malting Co. v. Modzelewski “would control.”

The answer to the second objection of counsel for the defendant, that the covenant sought to be enjoined was without consideration, is that by the terms of the contract that covenant was part of the consideration of the employment of the defendant by the complainant.

We do not think that the third objection of counsel for the defendant, that the contract is so harsh and unfair that equity will not enforce it, is sound. The defendant, who was an intelligent business man, entered into the contract voluntarily, and there is no suggestion that the parties did not deal with each other on equal terms. Furthermore, after assuming the obligations of the contract, the defendant admittedly violated the contract while it was still in existence by soliciting insurance from other insurance companies than the complainant.

Counsel for the defendant further contend that the bill of complaint fails to allege that the complainant fully performed the contract on its part. This question was not raised in the trial court by the pleadings or otherwise. Apparently, on the hearing in the court below, it was admitted that the complainant had performed its part of the contract except as specifically alleged in the answer of the defendant that the “complainant failed and neglected to pay him all the commissions, salaries and bonuses he was led to believe he would receive.” This allegation is insufficient as it does not aver that the complainant failed and neglected to pay the defendant commissions, salaries and. bonuses due to the defendant under the contract, but alleges that the complainant failed and neglected to pay the defendant all of the commissions, salaries and bonuses that the defendant “was led to believe he would receive.”

For the reasons stated the order of the trial court is affirmed.

Affirmed.

Hatchett, P. J., and McSurelv, J., concur.


author: Mr. Presiding Justice Jones

text:
    The Straus Brothers Company, Appellant, v. Harry L. Rush et al., Appellees.
    Gen. No. 7,462.
    1. Estates of decedents — statutory tar against claims not presented or sued upon within year after letters issued. Where there are sufficient personal assets to pay the claims allowed against an estate, all demands which are not presented or sued upon within one year from the date of letters testamentary or of administration are forever barred from participating in the administrator’s distribution of assets, except those which have not been inventoried.
    2. Estates of decedents — right of action against heir or devisee . upon contingent claim not presented or sued upon during yew following issuance of letters. Where a claim against an estate remains contingent during the one-year period following the date of the issuance of letters testamentary or of administration, the bar of the statute against its enforcement thereafter is not absolute, and an action thereon will lie against the heir or devisee to the extent of the value of the lands descended from the ancestor or devisee.
    3. Estates of decedents — noncontingent character of obligation of -mortgage notes where mortgagor dies prior to their maturity. Where a mortgagor died prior to the maturity of the mortgage notes, the obligation thereof was not contingent during the period of administration, although the mortgage provided for acceleration of their maturity in the event of the nonpayment of interest.
    4. Estates op decedents — liability of heirs and devisees for obligations of decedent where personal estate insufficient. Under Cahill’s St. ch. 59, ffif 11-15, there is imposed upon the heirs and devisees of a decedent a positive liability for all the debts, claims and demands of the ancestor or devisor, to the extent of the real estate received by them, whenever there is insufficient personal assets for the payment of such obligations.
    5. Estates op decedents — failure of creditor to assert claim against estate within period of administration as precluding subsequent action against heirs or devisees, where personal estate insufficient to pay obligations. Cahill’s St. ch. 3, If 71, limiting the time within which claimants against the estate of a decedent must act to enforce their claims in order to .share in the administrator’s distribution of the assets, is not a general limitation upon the rights of creditors against the property of the decedent, and does not limit or affect the right of a creditor, under Cahill’s St. ch. 59, If If 11-15, to enforce his claim against the heirs and devisees of such decedent in the event of an insufficiency of personalty to pay debts.
    Appeal by plaintiff from the Circuit Court of Iroquois county; the Hon. Prank L. Hooper, Judge, presiding. Heard in this court at the April term, 1926.
    Reversed and remanded with directions.
    Opinion filed April 5, 1926.
    Rehearing denied July 5, 1926.
    Rearick & Meeks and Pallissard & Benjamin, for appellant.
    Stephen C. Malo and Roscos C. South, for appellees; Free P. Morris, of counsel.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

• The Straus Brothers Company, appellant, brought an action of debt against appellees, the administratrix and heirs at law of Martin J. Rush, deceased. The amended declaration charges that the appellant is the holder and owner of certain notes signed by Martin J. Rush for the principal sum of $42,800 upon which there is due a large amount of accrued interest; that said notes are secured by a mortgage upon 295^4 acres of land in Indiana; that the notes are purchase money notes; that Bush died intestate prior to the maturity of any of them; that at the time of his death he was seized and possessed of real estate both in Illinois and Indiana; that the same descended to his said heirs; that they failed to pay the interest as it accrued; that the mortgage contained an acceleration clause by virtue of which appellant has elected to declare the amount, both principal and interest, due and payable; that the personal assets of said estate were insufficient to pay the claims allowed against it; and that by force of the statute the heirs of said Bush became and are liable to plaintiff to the full extent of the value of the real estate which descended to them from their ancestor.

The pleas aver that Minnie Bush was appointed administratrix of said estate on August 22, 1922; that she gave notice of adjustment day as provided by law; that an inventory of all the real and personal estate of said deceased was filed and approved on October 21, 1922; that this suit was not commenced until October 15, 1923, being more than one year after the date letters of administration were granted; that the claim now sued on was not filed against said estate; that it is not contingent and that by reason of the statute is absolutely and forever barred.

Sections 60, 61, chap. 3, of the Bevised Statutes [Cahill’s St. ch. 3, 61, 62], known as the Administration Act, provide a method for the presentation of claims against estates. Section 70 of said Act [Cahill’s St. ch. 3, [f 71] provides that all demands not so exhibited within one year shall be forever barred, unless the creditors shall find other estate of the deceased not inventoried or accounted for by the executor or administrator, in which case their claims shall be paid pro rata out of such subsequently discovered estate.

Demurrers were interposed to each of such pleas and were overruled because of the limitation provision of the Administration Act. Plaintiff elected to stand by its demurrers. Judgment was entered in bar of the action and this appeal followed.

■ Appellant contends that the limitation provision of the Administration Act is not applicable to this case, and that a recovery is authorized under sections 11-15, inclusive, of chapter 59, known as the Statute of Frauds. [Cahill’s St. ch. 59, ][][ 11-15.] It takes the position that where there is a deficiency of personal assets with which to pay the claims allowed against an estate, a creditor, who has not filed a claim within one year after letters of administration have been granted, may nevertheless recover his demand from the heirs or devisees to the extent of the value of the lands received by them from their ancestor or devisor.

It is well settled that where there are sufficient personal assets to pay the claims allowed against an estate, all demands which are not sued on or presented for allowance within one year from the date of letters testamentary or of administration are forever barred from participating in the administrator’s distribution of assets, except those which have not been inventoried. But it is conceded that where a claim has remained contingent for that period of time, the bar is not absolute, but an action will lie against the heir or devisee to the extent of the value of the lands descended from the ancestor or devisor.

The claim sued on in this case was not contingent although the maturity of the notes was accelerated because of the nonpayment of interest. But even without such acceleration, they could have been filed as a claim against the estate under the provisions of section 67 of the Administration Act [Cahill’s St. ch. 3, 68], which provides that any creditor, whose debt or claim against the estate is not due, may, nevertheless, present the same in probate and have it allowed subject to a proper rebate of interest. A decision of the question presented in this case involves a study and construction of the above-mentioned sections of the Statute of Frauds. At common law only the personal property of a decedent was liable for the payment of his debts. His real estate was entirely exempt. It descended to his heirs, while the title to his personal property went to the administrator and upon him was devolved the duty of paying the debts of the decedent; but the ancestor might, by a specialty, bind the heir to the payment of a debt by expressly so declaring in the deed, and the heir was then bound to the extent of the land which had descended to him. However, if the land was devised, such devise defeated the creditor, as his remedy was against the heir only and not against the devisee. This incongruous situation led to the enactment of the statutes of 3 & 4 Wm. & Mary, ch. 14, which contained the following preamble :

“An Act for relief of creditors against fraudulent devisees.”
“Whereas it is not reasonable or just that by the practice or contrivance of any debtors their creditors should be defrauded of their just debts; and nevertheless it hath often so happened that where several persons having by bonds or other specialties bound themselves and their heirs, and have afterwards died seized in fee-simple of and in manors, messuages, lands, tenements and hereditaments, or had power or authority to dispose of or charge the same by their wills or testaments, have to the defrauding of such their creditors, by their last wills or testaments devised the same, or disposed thereof in such manner as such creditors have lost their said debts; for remedying of which, and for the maintenance of just and upright dealing,” etc. Important English Statutes, page 103, 3rd Ed.

This statute enlarged the former statutes by making the devisee liable upon a specialty to the same extent as the heir had formerly been. The English enactment has found its way into our statutes and it is provided by section 11 of the Statute of Frauds that:

“Any person * * * who shall die intestate may have the same actions against the executors, administrators, heirs and devisees as were formerly maintainable against executors and administrators upon bonds, specialties, etc.”

In addition to this virtual re-enactment of the English statute, the legislature of this State also enacted four other sections increasing the liability of an heir or devisee with respect to lands descended from the ancestor or devisor. As above stated, section 11 relates to suits upon the ancestor’s specialties and does not apply to his debts generally, but section 12 relates to all classes and kinds of obligations, and if the personal property be insufficient to discharge the just demands against the ancestor’s or devisor’s estate, it imposes a liability upon both heir and devisee to the full extent of the value of the lands, tenements, hereditaments, rents and profits received by him, as if the same were his own proper debts, saving and excepting that if such lands, tenements and profits have been by him bona fide aliened, before action brought, the same shall not be subject to execution. It will thus be seen that the liability of heirs for the debts of the ancestor to the extent of the property descended to them has been thoroughly established both by the common law of England and by legislative enactment in this State.

The doctrine laid down in the preamble of 3 & 4 Wm. & Mary has often been approved by our courts and it is manifestly unjust for an heir to enjoy the accumulations of his ancestor, without the same being subject to the payment of his indebtedness.

Section 13 provides that even if the heir or devisee has aliened the land so descended, judgment may be had against him personally for an amount not to exceed the value of the lands aliened. By section 14 it is provided that the heir and devisee shall be liable in a separate suit where they have received property through the decedent and where a judgment has been obtained against an executor or an administrator and there is not sufficient property in the hands of either to pay the judgment. And by section 15 it is provided that if no administration is had upon the estate of the decedent for a space of one year after his death, then a direct action may be maintained against the heirs and devisees on all the contracts and undertakings of the deceased.

The legislature of this State, through the provisions of the above-mentioned sections of the Statute of Frauds, has fixed and imposed a positive liability on the heir and devisee for all the debts, claims and demands of the ancestor or devisor, to' the extent of the real estate received by them, whenever there is insufficient personal assets for the payment of such debts and demands. A very profound discussion of the history and import of these statutory enactments was made by Mr. Justice Seholfield in the case of People v. Brooks, 123 Ill. 246.

But it is insisted by counsel for appellee that notwithstanding the apparent purpose of the legislature, nevertheless, the remedies against heirs and devisees, as provided by the Statute of Frauds, are hedged about by the limitation contained in section 70 of the Administration Act. Let us examine that section in the light of the decided cases. The provision barring claims, which have not been filed or sued upon within the prescribed time, is not a general limitation upon all remedies of a creditor against the property of a deceased person. It is merely a limitation upon the right to participate in the distribution to be made by an administrator or executor. But can it be said that the limitation affects other remedies of the creditors, or that the said sections of the Statute of Frauds constitute no additional or cumulative remedy? The statute fixing the time for filing a claim is not a general statute, but is a specific act adopted for the purpose of facilitating an early settlement of estates, and the failure to file a claim within the statutory period merely bars the claimant from participating in the inventoried assets of the estate when distributed by the administrator. (Wingate v. Pool, 25 Ill. 118; Waughop v. Bartlett, 165 Ill. 124; Union Trust Co. v. Shoemaker, 258 Ill. 564.) It is the policy of the law to speedily close the administration of estates. This policy is based not alone upon the advantages it gives to an heir or devisee, but upon the advantages afforded to creditors and third persons who may desire to deal in the assets of the estate. The provisions of the Statute of Frauds do not materially militate against this policy, for, if there is sufficient personal assets to pay the debts, the land which descends to the heir or devisee cannot be subjected to the payment of a claim not filed within the period prescribed by the Administration Act; or if there is not sufficient personal assets to pay the debts and the heir has aliened the lands descended to him, the purchaser will not be disturbed and have his land sold upon execution.

Appellees rely upon Roberts v. Flatt, 142 Ill. 485, and claim the case holds that if the owner of notes secured by a real estate mortgage desires to have recourse upon any property belonging to the estate of a deceased person, which is not included in the mortgage, he must file his claim or bring suit on the notes within one year or be forever barred from obtaining satisfaction from any property not specifically pledged in the mortgage. We do not so interpret the case. The facts were that Flatt gave a mortgage on certain real estate to Morfoot. Flatt died and letters of administration were issued. Morfoot obtained a decree in the circuit court for foreclosure and sale of the mortgaged premises. The sale did not realize the full amount of the debt but left a considerable deficiency. No deficiency judgment was entered in the circuit court and no claim was filed by Morfoot in the probate court. Nevertheless, Roberts, the administrator, filed a petition in the probate court to sell other real estate to pay debts, including the deficiency due Morfoot. The Supreme Court held that in order to authorize a decree to sell real estate to pay this debt by the administrator, the claim must have been presented within the time limit in accordance with the law in relation to the administration of estates. The fact that the foreclosure proceedings in the circuit court disclosed a deficiency and that the administrator knew of its existence did not answer the requirement of the statute that all claims must be exhibited to the court within a specified time after the granting of letters of administration. And it was further held that' if Morfoot had in apt time obtained a deficiency decree in the circuit court, it would have been tantamount to the presentation of a claim as required by the Administration Act. The question involved in the Roberts case concerned the right of an administrator under the circumstances to petition for the sale of real estate to pay debts, and the provisions of the Statute of Frauds was not even incidentally involved.

Waughop v. Bartlett, 165 Ill. 124, is also cited by counsel for appellee. The Supreme Court was not called upon in that case to define the effect of the provisions of the Statute of Frauds or to determine their application. Ellen Waughop, in her lifetime, had executed certain notes and a mortgage. Her estate was being administered upon. Sometime after the lapse of two_years from the date letters testamentary were issued, a bill was filed in the circuit court to foreclose the mortgage. The executor interposed the provisions of section 70 of the Administration Act as a defense. The Supreme Court again held that the said section was merely a specific act, to facilitate the administration of estates, and that it was not a general statute of limitations affecting the rights of a mortgagee in the mortgaged premises. What is said by the court in regard to the bar of the statute has reference only to the distribution of the assets of an estate by an administrator or executor under the Administration Act, and has no relation whatever to the rights of mortgagees or to the rights of creditors, under the Statute of Frauds. We held in Pickrel v. Doubet, 239 Ill. App. 553, that the holder of an implied vendor’s lien may have his action against an heir, where the decedent’s estate had insufficient personal assets to pay the debts, and that it was not necessary to file the claim with the administrator. A creditor often has an election of remedies and it does not follow, because the claim may not be permitted to share in the distribution by the administrator, that the holder is' barred from pursuing his other remedies. (Union Trust Co. v. Shoemaker, supra.) Such statutes as the limitation provision of the Administration Act operate only upon the remedy. (Suppiger v. Gruaz, 137 Ill. 216, 222.) Hence, it follows, that in enforcing a demand against an estate under the Administration Act, a claim must be filed within the period fixed by that Act, in order for it to participate in the inventoried assets when distributed by the administrator; and it also follows that the limitation of that Act affects only the remedies furnished by it and does not in any way affect the remedies furnished by other acts.

In the Snydacker case, on page 225, the Supreme Court quoted at length from Payson v. Hadduck, 8 Biss. [U. S.] 293, and on page 226 said: “At common law the heir was not liable for the debts of the ancestor except upon covenants or bonds under seal, where the heir was specially named, and in those eases only to the extent of the real estate, because he only received real estate by descent.” And our Supreme Court added “that in such suit the bar of the statute of two years is held not to apply in actions against the heir.”

It has been frequently held that a demand, which remains contingent during the period allowed by law for filing claims, may be recovered in a suit against an heir or devisee and that the provision of section 70 of the Administration Act is not a bar and has no application to such proceedings. (Dugger v. Oglesby, 99 Ill. 410; Suppiger v. Gruas, supra; Snydacker v. Swan Land & Cattle Co., 154 Ill. 220.) Suits of the character just mentioned are generally upon a specialty such as a bond or covenant and, if so, are brought under section 11 of the Statute of Frauds. It does not seem logical to hold that section 70 does not apply to suits brought under section 11 of the Statute of Frauds, but does apply to those brought under section 12, as this suit was.

The first case which squarely presented the questions here involved to the Supreme Court of this State is Ryan v. Jones, 15 Ill. 1. The action was in debt and was brought by Byan against John T. Jones, as executor and devisee of Michael Jones, upon certain promissory notes. The case called for a determination of the very question which is brought before us in this case. It was there contended that the two years’ limitation for filing claims, as provided by the Administration Act then in force, constituted a bar to a suit brought under the said sections of the Statute of Frauds. The court construed the latter act in connection with the provisions of the Administration Act, and said: “The statute (Statute of Frauds) was passed to enable the creditor of a deceased person to reach the lands in the hands of the heir or devisee, where the personal estate is not sufficient for the payment of the debts. Every devise of real estate is made fraudulent and void against the existing creditors of the devisor. It is fraudulent in law without regard to the question of intention. The devisee has no just claim to the lands, unless the debts of the testator are fully discharged. ISTor has the heir any superior right to the lands of his ancestor. They both acquire the lands subject to the payment of the debts of the former owner. * * * If the creditor cannot obtain satisfaction of his debt from the personal estate, he may resort to the real estate in the hands of the heirs or devisees and in the case of bona fide alienation of the same before suit brought, he may charge them personally with its value.” The court held that the limitation of the Administration Act applied to creditors seeking a recovery from an administrator out of the assets of the decedent, but that it has no application to a suit brought against an heir under the Statute of Frauds. On page 5 of the opinion the court said: “In joint actions under the statute, the executor or administrator may insist on this limitation of two years; * * *. But heirs and devisees cannot rely upon this limitation.” That ease constitutes the foundation stone of a long fine of decisions in perfect harmony with the principles which it announces. (Guy v. Gericks, 85 Ill. 429; Hoffman v. Wilding, 85 Ill. 453; Mackin v. Haven, 187 Ill. 480; Monroe v. Becker, 283 Ill. 42; Union Trust Co. v. Shoemaker, supra.) And it forms the text in Horner’s Probate Law (2nd ed.), p. 401.

In People v. Brooks, supra, the doctrine that the Statute of Frauds offers additional and cumulative remedies and that suits brought thereunder are affected only by the general statute of limitations and not by the specific limitation of the Administration Act is fully upheld. A recovery in that case was, however, denied only because it appeared that there was no deficiency of personal assets to pay the debts of the decedent. The heir had received from the administrator $300,000 of personal assets on final distribution. Union Trust Co. v. Shoemaker, supra, also upholds the doctrine and the court said that the remedies given by the Statute of Frauds to creditors against the heirs and devisees of deceased persons are cumulative and are not intended to take away or limit the remedies theretofore existing. The case recognizes the exist-en.ce of a remedy to a creditor against an heir, under certain circumstances, beyond anything given by the Statute of Frauds. It will be observed that the statute does not give to a creditor any recourse to personal property which has descended to the heir or devisee, but such recourse is limited to the value of the real estate descended. However, in the case last cited, it is held that where a claim is contingent during the whole period of administration, resort may-be had to equity to obtain collection from an heir out of personal assets he has received from the administrator. The recovery is allowed upon the established doctrine of equity that creditors who have not been guilty of laches may pursue the assets of the decedent into the hands of the distributees, where distribution has been made without discharging the debts, and it is said that: “Although no action at law lies, or ever did lie, against distributees of personal property * * * the ancient remedy by a bill in equity * * * still continues.”

The remedies afforded by the Statute of Frauds are not affected by the provisions of section 70 of the Administration Act, but the general statute of limitations alone applies to suits brought under sections 11 and 12 of the Statute of Frauds.

It is our opinion that the demurrers to the defendant’s pleas should have been sustained, and this cause is therefore reversed and remanded with directions to the trial court to set aside the judgment herein and the order overruling the demurrer to the defendant’s pleas, to sustain said demurrers and to permit such further proceedings as may be in conformity with the views we have expressed.

Reversed cmd remanded with directions.


author: Mr. Presiding Justice Partlow

text:
    C. H. Lefler, Appellant, v. Board of School Inspectors of City of Peoria and School District Number 150, Peoria County, Illinois, Appellees.
    Gen. No. 7,620.
    1. Evidence — presumption from failure of party to- produce evidence within his power to produce. The failure of a party to produce evidence within his knowledge which it is within his power to produce, and which he naturally would produce were it favorable to him, gives rise to an inference that if such evidence were produced it would be unfavorable to him.
    2. -Contracts — question whether written contraed actually signed by bath parties as one of fact for jury. In an action based upon an alleged contract of employment, the question whether a written contract was actually signed by both parties was one of fact for the jury.
    Appeal by plaintiff from the Circuit Court of Peoria county; the Hon. Frank Lindlet, Judge, presiding. Heard in this court at the April term, 1926.
    Reversed and remanded.
    Opinion filed May 29, 1926.
    Rehearing denied July 5, 1926.
    C. H. Lefler, pro se, for appellant; Clyde Capron, of counsel.
    H. D. Morgan, for appellees.
   Mr. Presiding Justice Partlow

delivered the opinion of the court.

Appellant, C. H. Lefler, obtained a judgment for $167.74, against appellees, Board of School Inspectors of the City of Peoria and School District Number 150, Peoria County, Illinois, in an action of assumpsit, in the circuit court of Peoria county, and an appeal has been prosecuted to this court.

For about 12 years, appellant had been in the employ of appellees as a teacher and supervisor of manual training. In May, 1921, he was re-elected for the school year 1921-1922, at a salary of $2,500. On May 16, 1921, a contract of employment was sent to him by appellees, which contract was on a printed form, and at the bottom the name of appellees was printed, with a blank space for the signature of the secretary of appellees, and a blank line for the signature of appellant. Below the space for the signatures was the following: “These forms are in duplicate. Both copies are to be signed by you and returned to the secretary of the board not later than ten days from date hereon; otherwise your position will be declared vacant. On receipt by the secretary of both copies of the contract properly signed by you, the secretary or assistant secretary will sign both copies and will file the original and return the duplicate to you. ’ ’ The contract contained a clause relative to the membership of appellant in the Men Teachers’ Federation.

Appellant testified that within the 10 days he signed both copies and returned them to the secretary. On May 31, 1921, the teacher’s committee of appellees interviewed appellant with reference to certain letters sent out by the Men Teachers’ Federation, of which appellant was a member, and as a result of this interview, the committee recommended to the school board that appellant be discharged from his employment under his contract for the school year 1920-1921, said discharge to date from June 1, 1921, and as the contract for the school year 1921-1922 had not been signed by the secretary, that it should not be signed, and that appellant should not be employed for the school year 1921-1922. This recommendation was approved by the school board at a special meeting, and the next day the secretary notified appellant of the action of the board. Appellant performed no services after that date, but was not paid for 12 days of service under the contract of 1920-1921. This suit is to recover for these twelve days under the 1920-1921 contract, and for the breach of the 1921-1922 contract.

The declaration consisted of four counts. The first two were based upon the 1920-1921 contract, for the 12 days for which appellant was not paid, and are not in controversy in this case. The third and fourth counts alleged that appellees, on May 20, 1921, entered into a written contract with appellant for the school year 1921-1922, at a salary of $2,500; that appellant was to begin his duties about the first Monday in September, 1921; that he tendered his services according to the contract, which tender was wrongfully refused and appellees wrongfully refused to pay him. Later on, an additional count was filed based upon the 1921-1922 contract, which alleged that on May 16, 1921, appellees, in consideration that appellant would enter its employ, undertook and promised appellant to employ him; that appellant accepted the offer and agreed to its terms; that appellees at its meetings made complete notes and memoranda of all the terms and conditions of the contract, which notes and memoranda were signed by the appellees by its assistant secretary, who was authorized to do so; that appellees wrongfully refused to permit appellant to enter upon the employment, and appellant was damaged thereby.

It is insisted by appellees that the contract was not to be performed within one year, consequently, under the statute of frauds, it had to be in writing, or to be evidenced by some memoranda or note thereof in writing; that the contract was printed with the name of appellant and his salary filled in by a typewriter with a blank for the signature of the secretary; that the name of appellees was printed at the bottom; that appellant was instructed to sign and return this instrument for the signature of the secretary; that it was never signed by the secretary and therefore does not constitute a contract; that the only question in the case is whether the contract relied upon in the third, fourth and additional counts, was reduced to writing as required by the statute of frauds.

It is contended by appellant that while the written contract and all the other written evidence was for the construction of the court, yet each of the several written exhibits taken in connection with the testimony of witnesses to facts and circumstances surrounding the parties were such that this evidence should have been submitted to the jury in order to determine the intention of the parties and whether the contract was executed; that the court should have held, as a matter of law, that appellees signed the contract by affixing their signature in typewriting; that the signing of the contract by the secretary would only have been his ministerial act of attestation, and that the contract became effective upon its unconditional acceptance by appellant; that the offer of the contract by appellees and the acceptance of its terms and conditions, which were reduced to writing in complete notes and memoranda and signed by the assistant secretary of appellees, were sufficient under the statute of frauds to constitute a valid and binding contract.

The contract was not to be performed within a year and for that reason it was necessary that the contract, or some memoranda or note thereof, should be in writing and signed by the party to be charged, or by some other person lawfully authorized.

What is necessary to constitute a writing sufficient to take the case out of the operation of the statute of frauds was considered by this court in Westgate v. City of Aurora, 229 Ill. App. 84. The rules there laid down are correctly stated in so far as they are applicable to the facts in this case. It has been held that the signature at the bottom of the contract need not be in writing, but it may be printed, or may be typewritten, provided there is evidence that it was the intention of the parties that it should constitute their binding obligation. Weston v. Myers, 33 Ill. 424; Hoey v. Alcazar Amusement Co., 197 Ill. App. 411. No particular form of writing is necessary. Any writing which states all of the essential elements of the contract with reasonable certainty which is signed by the party to be charged is sufficient. Kopp v. Reiter, 146 Ill. 437; Morton v. Murray, 176 Ill. 54. It need not be contained in a single document, but may be in two or more documents. Bourland v. County of Peoria, 16 Ill. 538; Esmay v. Gorton, 18 Ill. 483; Mayer v. Hirsch, Stein & Co., 212 Ill. App. 441.

In Baltimore & Ohio Southwestern R. Co. v. People, 195 Ill. 423, the rule is announced that where the parties make the reduction of the agreement to writing and its signature by them a condition precedent to its completion, it will not be a contract until that is done, and this is true although all the terms of the contract have been agreed upon. We think this latter case is applicable to the facts here presented.

It is evident that the election of appellant to this position was not intended by appellees to constitute a contract between the parties, and therefore the facts alleged in the additional count to have been in writing were not sufficient to take the case out of the statute of frauds. On the other hand, it is apparent that it was the intention of the parties that a contract in writing should be entered into between the parties after the election of appellant. This is apparent from the fact that certain conditions are contained in the contract as sent to appellant relative to his membership in the Men’s Federation.

If the records of the school board are not sufficient to constitute a writing under the statute of frauds, the next question is whether there was evidence which shows that the contract sent to appellant was in fact signed by the secretary, thus making a valid contract between the parties. There is no dispute that the contract was received by appellant about May 20, and he testified that within 10 days he signed it and returned it to appellees. It appears from the evidence that this contract was one of about 400 others which were sent out about the same time to other teachers. They were all on printed forms and were alike. On the trial notice was served upon appellees to produce the contract, and a subpoena duces tecum was served for the same purpose, but it was not produced. The secretary testified that he had not made a search for it, but that a search had been made by other persons. His testimony is not very positive, but tends to show that the contract was not signed by him as secretary. The assistant secretary was not called as a witness, and therefore there is no positive evidence whether she signed it. The notice on the contract informs appellant that on receipt by the secretary of both copies of the contract properly signed by him that the secretary or assistant secretary would sign both copies, file the original, and return the duplicate to appellant. It is apparent from this notice that it was the intention of appellees to have the secretary or assistant secretary sign both copies after they had been signed by appellant and complete the contract immediately upon its being returned by appellant.

In 22 Corpus Juris 111, it is said: “The failure of a party to produce evidence which is within his knowledge which he has power to produce, and which he would naturally produce if it were favorable to him,, gives rise to an inference that if such evidence were produced it would be unfavorable to him; and a similar effect attends an effort to suppress evidence. Failure to produce, at the trial, an article which would tend to throw light on the issues may raise a presumption adverse to the party in whose possession it is, although it has been held that mere non-production of such article does not, in the absence of any demand for its production, raise a presumption that it has been suppressed as evidence.” To the same effect are 16 Cyc. 1059; Rector v. Rector, 3 Gilm. 105; Anderson v. Irwin, 101 Ill. 411; Hudson v. Hudson, 287 Ill. 286, 299.

The question of the construction of the contract itself and the written evidence was one of law for the court, but the question as to whether or not the written contract was in fact actually executed and signed by both parties was a question of fact for the jury and depended upon the evidence produced in the case. We think that when the evidence on this point is considered in connection with the presumption of law with reference to the failure of the secretary to produce the written contract that it was such evidence as should have been submitted to the jury in determining the question of fact as to whether the contract was signed and executed by both parties, and the court was in error in directing a verdict on the third, fourth and additional counts.

For. this reason the judgment will have to be reversed and the cause remanded.

Reversed and remanded.