author: Mr. Justice MoSurely

text:
    Andrew W. Mellon, Director General of Railroads, as Agent, Operating Illinois Central Railroad, Plaintiff in Error, v. G. J. Landeck and L. J. Pomeroy, Trading as Landeck Lumber Company, Defendants in Error.
    Gen. No. 32,514.

      Opinion filed April 9, 1928.
    Fred H. Montgomery, Herbert J. Deany and John T. Quisenberry, for plaintiff in error; Vernon W. Foster, of counsel.
    Harry A. Biossat, for defendants in error.
   Mr. Justice MoSurely

delivered the opinion of the court.

Plaintiff brought suit to recover from defendants on three claims for freight and switching charges aggregating $367.76. Upon trial by the court it had judgment on the first claim amounting to $22.97 and suffered an adverse judgment as to the balance. Plaintiff by this writ of error seeks the reversal of the adverse judgment and asks that it be given judgment for the entire amount in this court.

There is virtually no dispute as to the facts, most of which are stipulated. As there is no controversy as to the first claim, we shall refer only to the second and third.

The second claim is for freight and other incidental carrier charges aggregating $295.20 on a carload shipment of lumber from Forest, Louisiana, to Chicago, Illinois, consigned to the defendants in Chicago. Plaintiff claims that defendants reconsigned this car and caused it to be reconsigned three times after its arrival in Chicago and exercised other acts of ownership, thus becoming liable for the charges.

The third claim is for freight undercharges on two carload shipments of lumber from Texas, both consigned to the defendants and both reconsigned by them to the G-lobe-Bosse-World Furniture Company, Evansville, Indiana. Upon the delivery at Evansville the furniture company paid the freight charges on the cars, amounting to $170.47 and $159.32 respectively, whereas the amounts actually due in accordance with the proper tariffs were $200.78 and $178.60 respectively, which left an undercharge due and unpaid of $30.31 and $19.28, or a total of $49.59.

Did the defendants, as consignees, exercise acts of ownership as to the car involved in the second claim which made them liable for the carrier charges ? August 9, 1918, the car of lumber arrived at Chicago from Louisiana and notice of this was given the defendants on the same day. August 13th defendants wrote a letter to plaintiff requesting that .this car be delivered to the International Harvester Company, Weber Wagon Works, Chicago, Hlinois. August 17th the car was transported and delivered to the Weber Wagon Works of the International Harvester Company. August 20th the Harvester Company ordered the car rebilled to its Plano Works, which was done. August 23rd the car was ordered reconsigned by the Harvester Company to the E. L. Cook Lumber Company, Twenty-Second street and Ashland avenue, Chicago, and the charges for this particular switching movement were paid in advance by the Harvester Company. August 28th the car was unloaded by the Cook Lumber Company and the lumber placed in storage. August 23rd the defendants wrote a letter to the Harvester Company inclosing a check for $15.45 “in payment of switching charges” on the car. October 26th the defendants wrote the E. L. Cook Lumber Company referring to a conversation with reference to this lumber and requested the Cook Company to secure a permit to reload the lumber on this same ear and ordered it to be shipped to the Shafer Lumber Company, Cairo, Illinois. The Cook Lumber Company’s bill for storage of the lumber was rendered against and paid by the defendants. Over objection of plaintiff, certain letters were introduced in evidence, written some time subsequent to the disposition of this car. They were incompetent and not important. They refer to a request by defendants upon the plaintiff to collect this freight from a third party in Memphis, Tennessee, and a reply by plaintiff and one by this third party. One of the defendants testified that when the lumber arrived in Chicago it was inspected and rejected as not up to grade. This testimony was immaterial, as the fact of its rejection was not then communicated to plaintiff but only an order to reconsign the same to the Harvester Company.

A consignee by accepting a shipment becomes liable to the carrier for the lawful freight charges accrued thereon. The greater weight of authority and the most convincing reasoning favor the rule that, when a consignee orders a reshipment, acceptance of the shipment is necessarily implied. It has been so held in Chicago, I. & L. Ry. Co. v. Monarch Lumber Co., 202 Ill. App. 20, and especially in the exhaustive opinion of New York Cent. R. Co. v. Platt & Brahm Coal Co., 236 Ill. App. 150, and in the recent case of Indiana Harbor Belt R. Co. v. Lieberman, 245 Ill. App. 503. The opinions in these cases contain an examination and citation of a large number of decided cases involving the instant point. In New York Cent. R. Co. v. Warren Ross Lumber Co., 234 N. Y. 261, it was said:

“While no contractual relation arises between carrier and consignee by the mere designation of the latter as consignee, the consignee becomes liable for the freight charges when an obligation arises on his part from presumptive ownership, acceptance of the goods and the services rendered and the benefits conferred by the plaintiff for such charges. ’ ’ And a consignee must be held to have accepted the goods “when it exercised dominion over them by giving directions for their delivery.”

We note in opinions in Chicago, I. & S. R. Co. v. D. E. McMillan & Brother Coal Co., 207 Ill. App. 58, and Pere Marquette R. Co. v. American Coal & Supply Co., 239 Ill. App. 139, but do not think they should control our conclusion on the facts now before us.

Defendants exercised dominion over the shipment from the time it arrived in Chicago. At their request it was reconsigned to the Harvester Company and again reconsigned to the Cook Lumber Company, whose storage charges were paid by the defendants. They also requested the Cook Lumber Company to reload and ship the lumber to the Shafer Company at Cairo, Illinois. These were clearly acts of presumptive ownership exercised by the defendants and they are therefore liable for the carrier charges.

The third claim arose out of two cars shipped from Texas to defendants in Chicago and while in transit reconsigned by them to Evansville, Indiana, where, by mistake, the freight charges collected were $49.59 less than the tariff charges. The letter to plaintiff ordering the reconsignment ordered that the defendants’ name should appear as shippers. When plaintiff made a demand on the ultimate consignee at Evansville for the shortage in the charges, defendants wrote plaintiff advising that the Evansville Company was not responsible for these charges and requested information so that “we can handle the matter without further delay.”. Defendants are liable for the difference between the freight actually collected from the furniture company at Evansville, Indiana, and the applicable tariff charges. At the request of defendants they became the shippers of this lumber from Mounds, Illinois, the point of reconsignment, to Evansville, Indiana, and in their letter they particularly advised plaintiff that the Evansville company was not responsible for these charges, as it had settled with defendants for the same.

Where a freight charge has mistakenly been paid which is later discovered to be less than the applicable tariff rate, the difference may be collected by the carrier. Pittsburgh, C., C. & St. L. Ry. Co. v. Fink, 250 U. S. 577; Louisville & N. R. Co. v. Maxwell, 237 U. S. 94.

Under the law and the undisputed facts plaintiff was entitled to recover the entire amount of its claim, and as the case was tried by the court without a jury, the judgment will be reversed with a finding of fact and judgment will be entered in this court for plaintiff and against defendants in the sum of $367.76.

Reversed with finding of fact and judgment here for plaintiff for $367.76.

Finding of fact: We find that defendants accepted the shipments in question and became liable to pay all transportation charges therefor and became liable for and agreed to pay the full tariff rates, or the difference between the rates actually collected and the applicable tariff rates, on the shipments reconsigned from Mounds, Illinois, to Evansville, Indiana.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    Mabel L. Wagner, Appellant, v. Guy Watts Wagner, Appellee.
    Gen. No. 32,446.

      Opinion filed April 9, 1928.
    Ernest D. MacDotjgall, for appellant.
    Haeeenberg, Kopald & Burns, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal Mabel L. Wagner, the complainant, seeks to reverse an order of the circuit court of Cook county denying the prayer of her petition as amended, whereby she sought to have an order entered requiring the defendant, her former husband, to pay to her $2,600 for the support of their child.

The record discloses that on April 18, 1925, complainant obtained a decree of divorce from defendant and the custody of their child, Margaret, was awarded to her. Margaret was born June 10,1910, and defendant was required to pay to the complainant $25 a week as alimony and $10 a week for the support and maintenance of Margaret during her minority. The alimony and the money for the support of the child seem to have been paid regularly by the defendant, at least there is no question made concerning this matter. On May 10, 1927, complainant filed her petition praying that an order be entered requiring the defendant to pay $50 a week to the complainant for the support, maintenance and education of Margaret. It appears that Margaret graduated from the Nicholas Senn high school on January 27, 1927; that since that time she has been studying domestic art and would finish that course by June 4, 1927; that complainant desired to have Margaret enter a college to obtain a collegiate education, and that it would cost $2,600 a year. The defendant answered the petition and the matter was heard before the chancellor, who found that there had been no change in the financial condition of the defendant since the divorce decree had been entered which would warrant an increase in the allowance for the support, maintenance and education of the daughter Margaret, and the prayer of the complainant was denied.

The evidence shows that the defendant was a practicing physician in Chicago and had received from his practice the following: From August 12, 1923, to the end of that year $7,902.57; for the year 1926, $9,098.76, and from January 1st until June 8,1927, $4,304.41.

We think the question for decision should not be determined alone from the fact that defendant’s earnings had not materially increased from the date of the divorce decree, but that the court might be warranted in allowing an increase for the support, maintenance and education of Margaret, it appearing that her demands had increased since that time, but we do not think the income of defendant would warrant the allowance of $2,600 requested by complainant for the education of Margaret for the ensuing collegiate year. From the evidence, no less amount would have sufficed,, therefore the court was warranted in denying the prayer of the petition. This conclusion is emphasized by the fact that under the decree defendant must continue to pay complainant alimony of $25 a week or $1,300 annually.

Matchett, P. J., and McSurely, J., concur.


author: Mr. Justice Boggs

text:
    Harry L. Hardy, Appellee, v. George Dobler and Ralph E. Johnson, Trading as Dobler & Johnson, Appellants.
    Gen. No. 7,703.

      Opinion filed March 14, 1928.
    Walker F. Hull and Hall & Dusher, for appellants.
    Fisher, North, Linscott & G-ibboney, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.

An action in assumpsit was instituted by appellee against appellants in the circuit court of Winnebago county, to recover for commissions alleged to be due appellee under a parol contract for planning and supervising the construction of certain buildings.

The declaration consists of one special count and the common counts. The special count avers among other things that “plaintiff then and there being a carpenter and builder by occupation, and the defendants being engaged in building and erecting houses and buildings, by a certain oral agreement then and there entered into between the plaintiff and the defendants, the defendants agreed to and did employ the plaintiff to superintend building operations for and on behalf of the defendants, and did employ the plaintiff to act for and on behalf of the defendants in the purchasing of material, procuring contracts for material and labor in the building of buildings then in contemplation, and as compensation for such services to be rendered from time to time, the defendants agreed to pay to the said plaintiff the sum of five per cent (5%) on the cost of such building operations,” etc.

To said declaration, appellants filed a plea of the general issue, with notice of special defenses. In said notice appellants aver in substance that an oral contract was entered into on or about January 1, 1924, in and by which appellee was to furnish cost statements to include a commission to appellee, for which he would construct certain buildings for appellants; that appellee was to order the materials, hire the labor, etc., and issue orders therefor on appellants; that appellee, as his profit, was to have the difference between said cost price and the actual cost of the labor and materials on said buildings; that pursuant thereto certain buildings were constructed, and, as to all such buildings except three, the actual cost of the same, for labor and materials, was largely in excess of the cost price given by appellee; that, including house known as number 23, for which appellee had submitted a plan, but which was not completed by him, the aggregate cost was some $11,000 more than the aggregate of the cost sheets submitted by appellee.

A trial was had, resulting in a verdict and judgment in favor of appellee for $4,190.71. To reverse said judgment, this appeal is prosecuted.

It is first contended by appellants that the court erred in denying appellants leave to file a special plea, setting forth that appellee was practicing architecture, without being licensed by the Department of Registration and Education, and that by reason thereof he was not entitled to recover in this case.

The record discloses that appellee’s declaration was filed on February 10, 1925, and that appellants from time to time obtained an extension of the rule to plead and did not finally plead until August 31st of that year. The trial was begun on December 17th, and the leave to file said additional plea was applied for on December 21st, after appellee had closed his case'. No showing was made for the delay in malting such application. It was therefore within the sound discretion of the court to permit or refuse the filing of such additional plea. Millikin v. Jones, 77 Ill. 372-374; Dow v. Blake, 148 Ill. 76-88; City of Chicago v. Cook, 204 Ill. 373-375; Goldstein v. Chicago City R. Co., 286 Ill. 297-301; People v. Roy, 206 Ill. App. 406-413. In Dow v. Blake, supra, the court in discussing a question of this character at page 88 says:

“It is further assigned as error that the trial court denied defendant’s application to file additional pleas. The application was made only three days before the cause was reached for trial, and more than seventeen months after the issues had been made up. It was discretionary with the court to allow the pleas to be filed at a date so late in the progress of the cause, and we can not say that, under the circumstances, there was any abuse of discretion in denying the application.” Citing Brown v. Booth, 66 Ill. 419; Millikin v. Jones, supra; Fisher v. Greene, 95 Ill. 94; Chicago & E. I. R. Co. v. O’Connor, 119 Ill. 586.

In City of Chicago v. Cook, supra, the court at page 375 says:

“The application for leave to file the additional plea was addressed to the discretion of the court. (Fisher v. Greene, 95 Ill. 94; Dow v. Blake, 148 id. 76; Phenix Ins. Co. v. Stocks, 149 id. 319; Davis v. Lang, 153 id. 175.) A defendant who presents such an application after the cause has gone to trial, in order to entitle the application to the favorable consideration of the court, should support the motion by showing some reasonable excuse for not having presented the defense before the calling of the cause for trial.” Citing Phenix Ins. Co. v. Stocks, supra; 21 Encyc. of Pl. & Pr. 686, 695.

The court did not err in denying appellants leave to file said additional plea, no showing having been made.

The record discloses that appellee constructed 24 houses for appellants, following the making of said verbal contract, and started on the erection of what is known as house 23, but, on orders from appellants, did nothing on the same after the construction of the basement. It is also contended by counsel for appellants that they are entitled to recover against appellee as on a plea of set-off, the difference between the aggregate cost of the 25 houses mentioned, and the price submitted by appellee thereon, a difference of approximately $11,000.

Under the pleadings, appellants could not recover a judgment against appellee, even on their version of the contract, as no plea of set-off was filed, and, in their notice of special defense, appellants do not ask for a recovery over against appellee.

The evidence on the part of appellee is to the effect that he was to construct certain buildings for appellants, some to be on property owned by them individually, and some to be on property owned by others; that he was to and did draw plans for such buildings, superintend the erection of the same, furnish estimates of the cost of each of said buildings, and that he was to have for his compensation therefor the sum of five per cent on the total cost for labor and materials; that, pursuant to such contract, he constructed to completion 24 buildings and entered upon the construction of what is known as house 23, but got no farther than the building of the basement or foundation; that he furnished appellants an estimate of the cost of this building prior to entering upon its construction; that appellants had paid him something like $1,700, but had refused to make any further payments. Appellee further testified that he was not to be responsible for the cost price of the buildings, and that the statements which he furnished to appellants were his estimates of the cost of labor, materials, etc.

The evidence on the part of appellants is to the effect that appellee was to furnish them an estimate of the amount for which he would construct the buildings, and that he was to be entitled to a commission of five per cent on the first 10 buildings constructed, and four per cent on the buildings which he thereafter constructed, but Which amount was to come out of the difference between the estimated cost and the actual cost of the buildings as paid by them on the orders of appellee; that if there was anything left after payment of such orders, appellee was to have the same as his profits. Appellants insist that the court erred in excluding certain testimony offered by them on the theory of a set-off, based on the alleged difference between the estimated cost as furnished by appellee and the actual cost of said buildings.

Appellants are not in a position to urge with effect this assignment of error, having failed to abstract said estimate or cost sheets. Staude v. Schumacher, 187 Ill. 187-188; Gibler v. City of Mattoon, 167 Ill. 18-22; Traeger v. Mutual Building & Loan Ass’n, 189, Ill. 314-316; Kellogg Newspaper Co. v. Corn Belt Nat. Building & Loan Ass’n, 210 Ill. 419-421.

The testimony in the record discloses that the aggregate cost of said buildings exceeded the aggregate estimated cost thereof furnished by appellee, by more than appellee’s claim. The court, in the third, fourth and sixth instructions given on behalf of appellants, stated to the jury that if they found from the evidence that appellee agreed to construct the buildings in question for the amount of the estimate furnished by him, and if they further found that the aggregate cost of said buildings over the estimate was in excess of the amount claimed by appellee, they should find for appellants. Appellants were therefore not prejudiced by the rulings of the court excluding said evidence.

Appellants also insist that the evidence discloses that appellee was performing the services of an architect in the work done for them, and that, not having a license so to do, he is not entitled to recover.

Even if it should be held that appellee was contracting to practice architecture without being licensed so to do by the Department of Registration and Education, appellants are not in a position to raise this proposition, for the following reasons:

1. We have held, on the question of denying appellants leave to file said additional plea, that this issue was not raised in apt time.

2. While the court denied the leave to file said plea, at the same time, in the instructions given to the jury at the instance of appellants, the court adopted their theory of the case, and instructed the jury that, as to any of the buildings in question, the cost of which exceeded $7,500, appellee, under the provisions of the statute (Cahill’s St. ch. 10a, jf 4), was not entitled to recover any commission.

It is practically conceded that the cost of 22 of said buildings was less than $7,500 each. As to those, appellee was not required to be licensed, under the above section of the statute. While it is claimed that buildings 5 and 11 cost in excess of $7,500 each, appellants have not sufficiently abstracted the evidence in connection therewith for us to determine this question. None of the cost sheets on said buildings, which were offered and admitted in evidence, were abstracted. In order for us to determine with any degree of accuracy the cost of any of said buildings, it would be necessary for us to go to the record. This, under the decisions of our Supreme and Appellate Courts, we are not required to do. Staude v. Schumacher, supra; Gibler v. City of Mattoon, supra; Glos v. Shedd, 218 Ill. 209-217; Laird v. Dickirson, 241 Ill. 380-383; People v. Czarnecki, 268 Ill. 278-282. Appellants are therefore not in a position to urge that appellee cannot recover for the reason that he was not a licensed architect.

It is next contended by appellants that appellee cannot recover for services rendered as an architect, under the pleadings. Appellee would not be entitled to recover under the special count of his declaration, as that was framed on the theory that he was performing the services of a contractor or builder. However, as 24 of said houses were completed at the time suit was instituted, appellee would be entitled to recover therefor under the common counts. Peterson v. Pusey, 237 Ill. 204-207; Catholic Bishop of Chicago v. Bauer, 62 Ill. 188; Sands v. Potter, 165 Ill. 397-407; Union El R. Co. v. Nixon, 199 Ill. 235-243; Concord Apartment House Co. v. O’Brien, 228 Ill. 360-369. A different situation, however, obtains with reference to house 23. The evidence discloses that, shortly after appellee had started work on said house, appellants stopped him, and, according to his own testimony, he did not carry out his contract thereon, although his testimony tended to show a reasonable excuse for not having done so. However, that contract not having been executed, appellee is not in a position to recover on house 23 under the common counts. The special count alleged performance, and not a failure to perform on account of being forbidden so to do by appellants. Appellee is therefore not in a position to recover commissions on said house 23. Baird v. Evans, 20 Ill. 29-32; Ayers v. City of Chicago, 111 Ill. 406-411; Purdy v. Hall, 134 Ill. 298-305; Wabash Ry. Co. v. Billings, 212 Ill. 37-39; Nellis v. Grand Trunk W. Ry. Co., 220 Ill. App. 445-451. In Baird v. Evans, supra, the court at page 32 says:

“The law is well settled, that before a party can recover on a contract, he must have performed his part of the contract, or have been ready and willing to perform, or have been prevented or excused from its performance by the other party. 1 Chit. PI. 351; Taylor v. Beck, 13 Ill. R. 387. The plaintiffs, in their first count, had averred a full performance, and the evidence showed a failure to perform their part of the contract. The averment was material, and to entitle them to recover on the special count, they were bound to prove the performance as averred.”

Appellee in his testimony estimated the cost of house 23 at $12,000, and it is practically conceded that the verdict included commissions thereon. We therefore hold that, as to house 23, appellee would not be entitled to recover a commission, as its cost, according to appellee’s estimate, exceeded $7,500, and this would be true, notwithstanding the evidence discloses that appellants caused said building to be completed after appellee had been forbidden to carry out his contract on the same.

It is also insisted that the court erred in its remarks made during the trial of said cause. This matter was not brought to the attention of the court on the motion for a new trial. The error relied on for reversal must be brought to the notice of the trial court by a motion for a new trial, so that it may be there corrected. Brown v. John L. Paraham Hat Co., 198 Ill. App. 623. Counsel are therefore not in a position to raise the point at this time.

It is also contended that counsel for appellee made inflammatory and prejudicial remarks in their argument to the jury at the close of the case. While the record discloses that objections to the remarks of counsel for appellee were made during the closing argument, the remarks in question are not preserved in the record. Counsel are therefore not in a position to urge with effect this assignment of error. North Chicago St. R. Co. v. Southwick, 165 Ill. 494-495; Chicago City Ry. Co. v. Gemmill, 209 Ill. 638; Sherburne v. McGuire, 197 Ill. App. 486.

It is also insisted that the court erred in denying the motion made by appellants at the close of appellee ’s evidence and again at the close of all the evidence, to exclude the evidence and direct a verdict in favor of appellants. In view of what we have already said, this point is not well taken.

It is also insisted by counsel for appellants that the court erred in giving the four instructions given on behalf of appellee, in modifying certain instructions and refusing certain instructions offered by appellants. In view of the law as laid down herein, appellants were not prejudiced by the rulings of the court on the instructions. Twelve instructions were given on behalf of appellants as tendered, and one instruction tendered by them was modified and given. These instructions submitted to the jury appellants’ theory of the construction of the contract entered into by them with appellee, and as to whether the difference between the aggregate cost of the construction of said buildings was in excess of the amount claimed by appellee.

Appellee assigned cross errors, for the purpose of raising the constitutionality of the statute providing for the licensing of architects, etc., with a motion that said cause be transferred to the Supreme Court. Appellee did not raise this question in the trial court, by his instructions, on the motion for new trial, or otherwise. He is therefore not in a position to urge his motion for the transfer of the cause. Opaque Cloth Shade Co. v. Veight, 161 Ill. 337-338; Board of Sup’rs of Lee County v. Commissioners of Highways, 164 Ill. 574-575; Cleveland, C., C. & St. L. Ry. Co. v. McGrath, 195 Ill. 104-105; Cummings v. People, 211 Ill. 392-401; Moses v. Royal Indemnity Co., 276 Ill. 177-178.

If appellee shall, within 20 days from the filing of the opinion herein, file a remittitur of $600, reducing the amount of the judgment rendered to $3,590.71, the same will be affirmed. Otherwise, the judgment will be reversed and the cause will be remanded.

Affirmed with remittitur; otherwise reversed and remanded.


author: Mr. Justice Eldredge

text:
    The People of the State of Illinois ex rel. Board of Education of City of Chicago for use of The Board of Trustees of Public School Teachers’ Pension Fund, Appellees, v. Board of Education of Chestnut Community Consolidated School District No. 10, Logan County, Illinois, et al., Appellants.
    Gen. No. 8,066.

      Opinion filed October 31, 1927.
    Rehearing denied January 4, 1928.
    Harold F. Trapp and Miller & Miller, for appellants.
    Chapman, Cutler & Parker, H. M. Cassidy, Stanley Eioh and Peter Murphy, for appellees.
   Mr. Justice Eldredge

delivered the opinion of the court.

This is an'appeal from the judgment rendered in the circuit court of Logan county granting a writ of mandamus in a suit brought by appellees against appellants. Appellants being the directors of school districts Nos. 7 and 9, respectively, of Logan county, demurred to the amended petition for mandamus filed by appellees. The demurrer was overruled and appellants, electing to abide by their demurrer, the court entered judgment awarding the writ in accordance with the prayer of the petition. The only question presented to this court for review is the sufficiency of the petition. Many of the questions raised by counsel for appellants are res adjudícala by the decision in the case of People ex rel. Pegram v. Stoll, 322 Ill. 286.

In the amended petition it is alleged, in substance, that the Chestnut Community Consolidated School District No. 10, of the County of Logan, was organized on or about April 23, 1920, and that the territory comprising the same was the territory previously occupied by common school districts Nos. 7, 9 and 10 of said county, and that upon the organization of said Consolidated School District No. 10, said common school districts Nos. 7, 9 and 10, ceased to exist as separate school districts; that in January, 1923, by proceedings duly taken and held pursuant to law, the voters of said Consolidated School District No. 10 determined to purchase a site and to build a schoolhouse for the use of the inhabitants of said district; that in order to procure the funds for the purchase of said site, and the construction of said schoolhouse, said Consolidated School District No. 10 proceeded to raise" the sum of $36,000, by borrowing the same on the credit of said district by the issuance of bonds to the above amount; that on January 29,1923, an election was held for the purpose of voting on the propositions to authorize the issue of such bonds and that at such an election the majority of the voters of said district voted in favor thereof; that said bonds were authorized to be issued as of the date of April 1, 1923, to be numbered from 1 to 45 inclusive, some in the denomination of $1,000, and others in the denomination of $4,000, each bond payable in numerical order to the amount of $2,400, on the first day of July in each of the years 1925 to 1939, inclusive, to bear interest at the rate of 5 per cent per annum, payable each year on the first day of July; that said bonds and coupons were made payable at the Merchants Loan and Trust Company, Chicago, and were payable to bearer; that the form of said bonds and the resolution under which the same were issued are set forth in the minutes of the meeting of the Board of Education of said district held on March ,26, 1923, a copy of which is hereto attached, marked Exhibit A, and made a part hereof; that in order to provide for the collection of a direct annual tax sufficient to pay the interest on said bonds as the same should become due, and to pay the principal thereof at maturity, said Consolidated School District No. 10 levied on all the taxable property within said district and a tax sufficient to produce the amount in each of the years 1925 to 1939, inclusive, set forth in the said exhibit; that the uncollected portion of said tax so levied is now a valid and- legally binding lien upon all the property comprising said Consolidated School District No. 10, as the same existed on the date of the delivery of said bonds, to wit, April 17, 1923; that said bonds were duly sold to the Bank of Chestnut, Illinois, for a sum not less than the par value thereof, in manner and form provided by law; that they were duly executed and- registered with the township school treasurer, who receives the taxes of said consolidated school district and were thereupon duly issued and delivered to said bank as the purchaser thereof; that on -or about April 17, 1923, the petitioner became the owner and holder of bonds of said issue in the principal amount of $5,000, by a purchase for value in due course of business, and subsequently, on or about July 10, 1923, petitioner became the owner and holder of certain other bonds of said issue of the aggregate principal amount of $25,000, by purchase for value in due course of business; that petitioner caused said bonds so purchased by it to be registered in its name and that it is now the owner and holder of said bonds; that the principal and interest payable to your petitioner on account of said bonds held by it, which became due prior to July 1, 1926, has been paid, and that the interest on all of said bonds held by petitioner which became due July 1, 1926, has been paid; that the amount due to your petitioner on principal of those bonds held by it, which became due July 1, 1926, to wit, bonds numbered 4 and 5, was not paid although presented for payment; that petitioner is informed and believes certain proceedings were had on or about August 4, 1923, by which the voters residing in that portion of said Consolidated School District No. 10, which formerly comprised Common School District No. 7, undertook to cause said territory formerly comprising Common School District No. 7, to be •detached from said Consolidated School District No. 10, and to be organized as a common school district to be known as Logan County School District No. 7— the same allegations in regard to Common School District No. 9 — that neither the detachment of the territory comprising Common School District No. 7, nor the detachment of the territory comprising Common School District No. 9, was petitioned for by a majority of the legal voters of said Consolidated School District No. 10; that it is provided by the laws of the State that in case any territory shall be set off from a school district that has a bonded debt, the change not being petitioned for by a majority of the legal voters of the district, said original district shall remain liable for the payment of such bonded debt as if not divided and the directors of the original district and the directors of the district into which the territory taken from such original district has been incorporated shall constitute a joint board for the purpose of determining and certifying to the county clerk the amount of tax required yearly for the purpose of paying the interest and principal of such bonded debt, which tax shall be extended by the county clerk against all property embraced within the original district as if it had not been divided; that it is the duty of the board of directors of said Consolidated School District No. 10, and of the board of directors of .Common School District No. 7, and of the board of directors of Common School District No. 9, to meet together as a joint board for the purpose of certifying to the county clerk the amount of tax required for the purpose of paying the interest and principal of the bonds so issued by Consolidated School District No. 10, but said Board of Education and said boards of directors aforesaid, have failed and refused to meet as a joint board and to make such certification; that on August 9, 1926, petitioner caused a demand to be made on each of the members of said boards aforesaid that they meet as a joint board and certify to .the county clerk the tax as hereinafter prayed. The petitioner then concludes with the prayer asking for the relief sought. To the petition is attached a copy of the proceedings of the Community Consolidated School District No. 10, held on the 26th day of March, A. D. 1923, as mentioned in the petition marked Exhibit A.

The first criticism of the petition is that the averment that said bonds were issued as set forth, in the proceedings of the Board of Education shown by the exhibit attached to the bill and made a part thereof does not show the validity of the proceedings because said exhibit is not a certified copy of a record showing the several proceedings, but is merely a certified copy of a resolution adopted By the Board of Education reciting that certain things have theretofore been done and ordering bonds to issue. This exhibit is only referred tó for two purposes: (1) As to the form of the bonds and the resolution under which the same were issued, and (2), the schedule of taxes to be levied for the years 1925 to 1939, inclusive. The averments in the petition are sufficient to show that said bonds were prima facie lawfully issued.

The next objection is that where the validity of the bonds is not admitted the proper procedure is to first recover a judgment establishing their validity and then to compel the levy of a proper tax to pay the judgment. There are two answers to this proposition. The demurrer admits the validity of the bonds and the rule of law suggested has no application to cases of this character.

It is also urged that the averments of petitioner that it is informed and believes certain proceedings were had by which the voters residing in that portion of the Chestnut Community Consolidated School District No. 10, which formerly comprised common school districts Nos. 7 and 9, undertook to cause districts to be detached from said Consolidated District No. 10, and to be organized as common school districts are insufficient to charge that there had in fact been any lawful separation or detaching of the territory mentioned from the original district. We do not think this criticism is well taken for the reason that the petition is brought against the boards of directors of common school districts Nos. 7 and 9, respectively, thus recognizing them as separate entities and they each respectively appear and plead in their corporate capacity. People ex rel. Weber v. City of Spring Valley, 129 Ill. 169. It is, moreover, directly charged in the petition that there is a board of directors for each of said common school districts. Their names are respectively stated and they are made parties to the suit.

Much of the argument of counsel is to the effect that it would be inequitable to compel the seceding territories to pay for a school building constructed and located in the Consolidated District No. 10, as the latter district has the sole benefit and use of said building and should be compelled to pay the bonds issued for the purpose of raising the funds for its construction. This question cannot come up for consideration here because the matter is wholly controlled by Cahill’s St. ch. 122, If 59, which provides that in. case any territory shall be set off from a district that has a bonded debt, the change not being petitioned for by a majority of the legal voters of the district, such original district shall remain liable for the payment of such bonded debt, as if not divided. In the case of People v. Stoll, supra, which involved these same school districts, it was held:

“This section was intended to provide for the case we have before us. In this case territory was set off from district No. 10, which had a bonded debt. The change was not petitioned for by a majority of the legal voters of that district, and the liability of the original district for the payment of the bonded debt remains, under the statute, as if there had been no division of the district. The directors of the original district and the directors of the district into which the detached territory has been incorporated constitute a joint board for determining and certifying the amount of tax required yearly for the purpose of paying the interest and principal of the bonded debt, and upon that certificate being filed with him it becomés the duty of the county clerk to extend the tax against all property within the boundaries of the original school district as if it had not been divided. * * * In such case the duty to levy and collect the tax is imposed by the provision made when the bonds are issued for the appropriation of the amount of each year’s payment during the existence of the debt, and the municipality can be compelled to levy and collect the tax by mandamus against its officers.”

It is our opinion that the petition for mandamus contains all the allegations of fact necessary for the awarding of the writ and that the trial court did not err in overruling'the demurrer to the petition. The judgment of the circuit court is affirmed.

Affirmed.


author: Mr. Justice Niehaus

text:
    Matt Yaple and Charles W. Ainsworth, Appellants, v. Edna Mertz Carman et al., Appellees.
    Gen. No. 8,078.
    Opinion filed November 21, 1927.
    Charles A. Gridley and Thomas D. Masters, for appellants.
    Bradley, Williams, Harper & Farrell, for appellees ; Thomas E. D. Bradley and Edward J. Farrell, of counsel.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case the appellants, Matt Yaple and Charles W. Ainsworth, filed a bill in equity in the circuit court of Cass county against the appellees, who are heirs at law of William K. Mertz, deceased, to enforce an alleged right to equitable contribution. The facts alleged in the bill as a legal basis for the demand for contribution are as follows:

“That the said William K. Mertz died possessed of moneys and securities of the approximate value of $152,000 and seized in fee of various tracts of land situate in the Counties of Cass and Mason, in the bill specifically described.

“That subsequent to the death of the said Mertz and on the 22nd day of May, 1922, letters of administration issued out of the County Court of Cass County to appellant, Matt Yap],e and one, Hugo W. Grreb; that said named persons qualified, agreeable to the orders of the said County Court, gave bond in the penal sum of $200,000 and thereafter administered upon the estate of the said Mertz.

“That the statutory year of administration expired on the 22nd day of May, 1923.

“That previous to the year 1920 appellants and the decedent Mertz were copartners, engaged in private banking at Kilbourne, Illinois; that such banking business was incorporated in 1921; that thereupon áppellants and Mertz became directors, the said. Mertz being elected president and remained so until his death.

“That in the prosecution of the banking business at Kilbourne, it became necessary in December, of 1921, to obtain credit for the use and benefit of the bank; that thereupon appellants and the said Mertz applied to the First National Bank of Chicago to extend credit to the Kilbourne Bank to the amount of $20,000; that in order to procure such credit, appellants and the said Mertz, together with one, S. N. Caldwell, on the 8th day of December, 1921, made, executed and delivered to the First National Bank of Chicago the following instrument:

Individual or Corporation.

“The undersigned hereby request the First National Bank of Chicago to give and continue to the Kilbourne State Bank, Kilbourne, Illinois, credit as they may desire from time to time, and in consideration of all and any such credit given, the' undersigned hereby guarantee prompt payment when due of any and all indebtedness now due or which may hereafter become due from Kilbourne State Bank, Kilbourne, Illinois, to said Bank, howsoever created or arising or evidenced and waive notice of the acceptance of this guaranty and of any and all indebtedness at any time covered by the same.

“It is understood that while the amount of credit extended to or liability incurred to you by the said Kilbourne State Bank, Kilbourne, Illinois, is not limited, the undersigned’s liability to you hereunder shall not exceed Twenty Thousand Dollars, Chicago, Illinois, December 8,1921.

S. N. Caldwell, (Seal)

Ass’t Cashier

W. K. Hertz, (Seal)

Matt Table, (Seal)

Charles W. Ainsworth, (Seal)

“That in reliance upon such contract the First National Bank of Chicago did, “during the lifetime of the said Hertz, extend credit to the Kilbourne Bank to the amount of $19,089.33, and that at the time of-the death of Hertz the Kilbourne Bank was indebted to the First National in that sum of money.

“That the Kilbourne Bank was a going concern throughout the years, 1922 and 1923, and until March, 1924, and its indebtedness to the First National remained a fixed and primary obligation of the Kilbourne Bank throughout the year of administration upon the estate of William K. Hertz.

“That no demand was made by the First National upon appellants and the said Hertz during his lifetime, on account of said contract of indemnity, or upon appellants after the death of said Hertz, until March, 1924, nearly a year after the year of administration upon the estate of Hertz had expired.

“That in March, of 1924, the First National, upon learning that the Kilbourne Bank had ceased doing business, made demand upon appellants and the said S. N. Caldwell to make payment of the said amount due it from the Kilbourne Bank; that at the time.of such demand the said Caldwell had become insolvent and that in May, 1924, appellants paid to the First National the amount of their respective individual liabilities, upon the basis of one third, amounting to the sum of $12,726.24 and thereafter, upon that item in the sum of $6,363.12 appearing in the report of appellant Matt Tapie and Hugo Greb, as administrators of the estate of the said Mertz, and for which they sought credit, being disallowed, appellants paid the last mentioned sum of money representing the liability of the defendant to the First National Bank, in full discharge of all liability arising by the terms of said contract of indemnity and for the benefit and in discharge of all liability against the estate of William K. Mertz.

“That the claim of the First National against appellants and the said Mertz, arising by reason of the contract of indemnity, was contingent at the time of the death of Mertz and remained so throughout the statutory year of administration upon the estate of Mertz and until March, 1924, when the Kilbourne Bank ceased doing business and the First National then learned of the death of the said Mertz.

“That on the 1st day of August, 1924, a final and complete distribution of the personal assets of the estate of William K. Mertz was made and the defendants, heirs at law of William K. Mertz, then received their distributive shares and no moneys remained in the hands of the administrators of such estate.

“That the legal and equitable title to the various tracts of land described in the bill upon the death of the said Mertz vested in said defendants as his heirs at law and they are now seized as in fee of undivided interests there.

“That because of the contingent character of the claim of the First National Bank, against appellants and the said Mertz and the engagements of the latter as evidenced by the terms of the contract, appellants upon the payment of the sum of $6,363.12 to the First National, in discharge of the liability of the said Hertz, became, in equity and good conscience, subrogated to all legal and equitable rights of the First National; and, because of the equitable doctrine of contribution are entitled to be reimbursed to the amount of $6,363.12 out of and from the real estate of which the said Hertz died seized and are entitled to a lien against said real estate and a sale thereof to satisfy the amount they paid in discharge of the liability of the estate of William K. Hertz. ’ ’

The bill prays for a lien upon the described real estate and a sale to satisfy the alleged claim for contribution.

The appellees demurred to the bill, and the court sustained the demurrer. The appellants stood by their demurrer and thereupon the court entered a decree dismissing the bill for want of equity. This appeal is prosecuted from the action of the court sustaining the demurrer and dismissing the bill.

It is contended by the appellants that their claim against the estate of William K. Hertz, deceased, for which they are asking contribution, was contingent, and that, therefore, the limitation upon the right to enforce the claim against the estate of the deceased during the administration year, provided for in paragraph 71, chapter 3 of the Administration Act, Cahill’s St. ch. 3, If 71, was not operative against the right of recovery thereon, in this proceeding. As averred in the bill, the claim arises on a written guaranty contract entered into by the deceased William K. Hertz, S. N. Caldwell and the appellants for the benefit of the Kilbourne State Bank with the First National Bank of Chicago. The contract is set out in haec verba in the bill and it is apparent from the face of the guaranty contract that the liability created thereby is primary in its character, not only as to the Kilbourne State Bank bnt also as to the guarantors, and the averments in the bill show that the liability under the contract of the deceased William K. Hertz and of the appellants was fixed and ascertained at the time of the death of the deceased, and that the amount was $19,089.33, and therefore no contingency existed as to liability or the amount thereof. It also appears from the averments of the bill that the deceased Hertz and the appellants were directors of the Kilbourne State Bank, and therefore must be charged with a knowledge of the fact that at the time of the death of Hertz the Kilbourne State Bank was not in a financial condition to pay, or would not pay the amount due the First National Bank of Chicago under the contract referred to, and that, therefore, the appellants and the Hertz estate would have to pay the $19,089.33 which was then due and collectible from them by the terms of the guaranty contract. If, therefore, the appellants wanted to enforce contribution from the Hertz estate, they could have done so, at any time, during the administration year, by paying the amount due under the guaranty contract and then filing their claim for contribution against the Hertz estate during the administration year. There appears to be no legal or equitable reason why paragraph 71 of the Administration Act, .Cahill’s St. ch. 3,. 71, should not apply to their claim. It has been definitely settled by recent decisions that claims of this character come within the purview of the Administration Act. Beebe v. Kirkpatrick, 321 Ill. 612; Yaple v. Mahy, 241 Ill. App. 446.

For the reasons stated, the decree is affirmed.

Affirmed.


text:
    American Banking Company, Appellee, v. General Motors Acceptance Corporation, Appellant.
    Gen. No. 8,095.

      Opinion filed November 21, 1927.
    Rehearing denied January 4, 1928.
    Goldman, Allshouse & IIealy and Wm. & P. J. Schlagenhauf, for appellant; Egbert G. Dreffein, of counsel.
    Earl S. Hodges and Hubbard & Lewis, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

This is an appeal from, a judgment in trover for $2,411.82, recovered by the appellee, American Banking Company, against the appellant, General Motors Acceptance Corporation, in the circuit court of Adams county. Concerning the material facts involved in this controversy, the evidence shows that Frank W. Miller was engaged in the business of selling automobiles in' the city of Quincy; that in the month of November 1925, he gave C. E. Hawkins, a sales agent of the Olds Motor Works Company of Lansing, Michigan, an order for the purchase of three Oldsmobile cars; that the Olds Motor Works Company accepted the order, and, pursuant to the order, shipped the three Oldsmobile cars ordered from their works at Lansing, Michigan, to Quincy, Illinois, and the cars arrived at Quincy over the C. B. & Q. Eailroad about November 16, 1925. When the cars arrived at Quincy, it was found that they had been consigned to the appellant, and were held for delivery by the railroad company subject to the order of the appellant, but Miller was notified on the arrival of the cars, by the railroad company, and informed that the delivery of the cars to him was subject to the order and control of the appellant. The appellant insisted that before it would order a delivery of the cars, he would have to satisfy certain financial and other demands, namely a cash payment of 10 per cent of the cost of the cars, plus the freight charges and the amount of excise tax thereon; that he would have to give a promissory note for 90 per cent of the cost of the cars, and also that he would have to execute a trust agreement to the appellant. The trust agreement which the appellant insisted on required Miller to keep the cars in storage brand new, and not to operate them for demonstration purposes, except on explicit instructions from the appellant, and except for the purposes of driving the cars from the railroad freight depot to his place of business in Quincy, also that he would return the cars to the appellant on demand. The trust agreement also provided that Miller would not sell, loan, deliver, pledge, mortgage or otherwise dispose of the cars, except after full payment of the cars and a release of the same by the appellant from the trust agreement. Appellant also required of Miller that before it would consent to the delivery of the cars to him that he pay $1,432 to appellant, which sum it claimed Miller owed appellant by virtue of an understanding had in reference to other cars previously handled by Miller. Miller thereupon in order to raise the necessary money to procure a delivery of the cars, arranged a sale of the cars, one car to Albert Y. Cook and another car to Earl Hagenbaumer, and the remaining car to Arthur Walford. Under the terms of the contract of sale to Cook, he gave his note secured by chattel mortgage for $986.08 in part payment of the price of the car, and Hagenbaumer in part payment of his car gave his note secured by chattel mortgage for $784.08, and Walford gave his note secured by chattel mortgage for $851.28 for the car purchased by him. The sale of the cars to Cook and Hagenbaumer occurred on November 20,1925; and the sale to Walford occurred on November 23, 1925. All these sales took place after the arrival of the cars at Quincy, but while the cars were still in the freight house of the railroad, awaiting delivery to Miller, and before the trust agreement to appellant was executed by Miller to appellant. The notes and chattel mortgages which were taken pursuant to the contracts of sale were duly executed and recorded and thereupon were assigned to the appellee, and the appellee in consideration thereof advanced to Miller the amount of money necessary to satisfy the pecuniary demands of the appellant, namely, the $1,432 required to satisfy a previous indebtedness of Miller which appellant claimed, and the $308 to pay the 10 per cent of the purchase price of the cars, and the amount necessary to liquidate the freight charges and excise tax against the cars, and Miller immediately paid over these sums to the appellant and he gave his note for the balance of the purchase price as required by the appellant. Miller testified at the trial that after he had complied with the money demands of the appellant and had given his promissory note for the balance of the purchase price, the cars were ordered released by the appellant and were unloaded and delivered to him, and that on the same day after the delivery of the cars, he signed the trust agreement for the appellant. After the cars had been delivered,' they were taken to Miller’s place of business in Quincy, and thereupon within a day or two the appellant seized the cars, ostensibly acting by virtue of its rights acquired under the trust agreement, and the cars were removed from Miller’s place of business by appellant, and it afterwards disposed of the cars by a resale to the Olds Motor Works Company. After the appellant had seized and repossessed itself of the cars, the appellee sued out a writ of replevin, claiming rights of property in, and the right to the possession of, the cars under the terms of the chattel mortgages which it held as assignee; but the cars could not be found and could not be recovered under the writ. Thereupon the appellee changed the action to recover damages in trover, alleging a wrongful conversion of the cars by the appellant.

Under the facts stated, it seems clear as a matter of law that after the appellant had released the cars for delivery to Miller, Miller’s title as owner of the cars became complete; that this title at the same time passed to the purchasers of the cars mentioned, and that the lien of the chattel mortgages given by the purchasers of the cars in conformity with the bargain and sale of the cars by Miller became legally effective. It is contended by the appellant that the chattel mortgages under which the appellee claims the rights of recovery and of possession of the. cars in question are void because there had been no delivery of the cars to the purchasers at the time they executed the chattel mortgages. It may be said concerning this contention that the general rule of the common law in the matter of a bargain and sale of chattels is, that “as between the vendor and vendee no actual delivery, symbolical or otherwise, is necessary — the completion of the bargain being all that is requisite to pass the title.” Wade v. Moffett, 21 Ill. 111. As illustrative of the doctrine referred to, in the above case, the court refers to Noy’s Maxims, which are quoted by Lord Ellenborough, C. J., in Hinde v. Whitehouse, 7 East, 558, and are illustrative of this point: “If I sell my horse for money, I may keep him until I am paid; but I cannot have an action of debt until he be delivered; yet the property of the horse is by the bargain in the bargainor or buyer. But if he do presently tender me my money, and I do. refuse it, he may take the horse, or have an action of detainment. And if the horse die in my stable between the bargain and delivery, I may have an action of debt for my money, because by the bargain the property was in the buyer.” 2nd Blackstone’s Com. 448. The rule of law concerning the element of delivery in a bargain and sale announced in Wade v. Moffett, supra, has been uniformly followed by courts of appeal in this State in a number of cases where a question of the necessity of delivery was involved. Cruikshank v. Cogswell, 26 Ill. 366; Holliday v. Burgess, 34 Ill. 193; Hodges v. Hurd, 47 Ill. 363; Frost v. Woodruff, 54 Ill. 155; Seckel v. Scott, 66 Ill. 106; Shelton v. Franklin, 68 Ill. 333, 336; Barrow v. Window, 71 Ill. 214; Webster v. Granger, 78 Ill. 230; Straus v. Minzesheimer, 78 Ill. 492; Luthy & Co. v. L. Waterbury & Co., 140 Ill. 664; Union Stock Yard and Transit Co. v. Mallory, Son & Zimmerman Co., 157 Ill. 554; Loftis v. Behrens, 187 Ill. App. 598.

Under the facts disclosed by the record, and in view of the law applicable to them as emphasized in the authorities above cited, the case under consideration may properly be summed up as follows: That Frank W. Miller bought the three auto ears in question from the Olds Motor Works Company of Lansing, Michigan, which the company shipped to Quincy, consigned to the appellant but for delivery to Miller subject, however, to such conditions as might be imposed by appellant for delivery of the cars; that appellant refused to order a delivery of the cars to Miller until he had satisfied certain financial and other demands made by appellant as a condition precedent to such delivery; that in order to enable Miller to comply with the appellant’s pecuniary demands, he sold the three cars in advance of their delivery, selling one to each of three customers, who respectively gave Miller in payment, or part payment therefor, their promissory notes secured by chattel mortgages, which were duly executed and recorded, and Miller thereupon assigned the notes and mortgages to the appellee in consideration of procuring from the appellee the money to satisfy the pecuniary demands of appellant, and Miller satisfied these demands with the money procured from the appellee by the assignments of the mortgage indebtedness to the appellee and thereby secured delivery of th cars, also that this delivery of cars occurred before the trust agreement was executed and delivered by Miller to the appellant.

The appellant thereafter seized the cars and appropriated them. In view of these facts, we conclude that the chattel mortgages held by the appellee were valid liens on the respective cars involved at the time the appellant seized them; that appellant had legal notice of such liens at the time of such seizure from the records of the chattel mortgages; that the liens of the chattel mortgages were prior to the rights, if any, of the appellant, to repossess itself of the cars acquired under the trust agreement; that therefore such seizure by appellant was wrongful as to the appellee; that by virtue of its prior lien and under the terms of the chattel mortgages appellee had the legal right to retake the cars under the writ of replevin which was sued out, and had at the time of suing out the writ the right of property in, as well as the right to the possession of, the cars, and that appellant’s subsequent conversion of the cars therefore gave the appellee a legal right of recovery of the damages resulting to appellee from appellant’s wrongful conversion of property.

It is also contended by the appellant that there was error in certain instructions pertaining to the doctrine of estoppel. The doctrine of estoppel as applicable to a certain phase of the case is defined in these instructions. It was contended by the appellee on the trial that there was evidence to show that appellant had knowledge, through its representative or agent, that the appellee was advancing the money which was to be paid to appellant for a release of the ears to Miller; that the appellee was advancing this money for this purpose, on the strength and value of the lien of the chattel mortgages in question, which were to be assigned to appellee; that inasmuch as the appellant received the benefits resulting from the transaction which provided a lien for appellee, the appellant was estopped to deny appellee’s right to the lien under the circumstances referred to. While the instructions are not strictly accurate in presenting the question of estoppel involved in the controversy the jury could not have been misled thereby into an erroneous conclusion concerning the estoppel, if any, which was involved in the case. The doctrine of estoppel at most was merely incidental to the main and real issues in the case, namely, whether the chattel mortgages held by appellee as assignee were valid liens on the cars in question, and whether the liens were prior to the right of the appellant under the trust agreement, to repossess itself of the property and appropriate the same.

We find no reversible error in the record, and the judgment is therefore affirmed.

Judgment affirmed.


text:
    Enoch Nelson, Appellant, v. H. N. Seymour, Appellee.
    Gen. No. 8,119.

      Opinion filed November 21, 1927.
    Rehearing denied January 4, 1928.
    Egbert E. Bodman, for appellant.
    Acton, Acton & Snyder, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

This is an appeal from a judgment for $260 rendered in the circuit court of Vermilion county in favor of the appellee H. N. Seymour. This suit was brought by the appellee for medical and hospital expenses, and the expense for nursing incurred as the result of injuries which the infant child of appellee, of the age of seven years, suffered by coming into collision with the automobile of the appellant Enoch Nelson, while she was crossing the street in the village of Eiley. The automobile causing the injury was driven by the minor son of appellant, Eonald Nelson. The declaration avers that the appellant, at the time of the injury, permitted his son to take, drive and operate the automobile for his pleasure and convenience along the public highway in question, and that the son negligently and improperly drove the same so as to strike and injure the infant daughter of the appellee. It is argued by the appellant that the verdict of the jury, upon which the judgment is based, is contrary to the evidence. This assignment of error, however, cannot be considered as properly before us for determination, inasmuch as the abstract of the evidence does not show that it contains all the evidence adduced at the trial.

It is also contended that the court erred in the giving of the following instruction:

“The court instructs you that it is provided by statute in the State of Illinois, that no person shall operate or drive a motor vehicle who is under fifteen years of age, unless such person is accompanied by a duly licensed chauffeur or the owner of the motor vehicle being operated.

“And you are further instructed that if you believe from the preponderance of the evidence that the defendant Enoch Nelson was the owner of a certain automobile, and that he knowingly permitted his son Ronald Nelson to take, drive and operate said automobile on the public highway, and if you further believe from the preponderance of the evidence, that the said Ronald Nelson was then and there under age of fifteen years, then as a matter of law, under such state of the proof, if such is the proof, the driving of the automobile by Ronald Nelson in violation of the statute would be negligence per se, and would make the defendant liable for any damage that was proximately caused by the driving of said automobile by said Ronald Nelson on the public highway to any other person using ordinary care and caution for their own safety.”

The criticism made of this instruction is that the negligence of the appellant charged, namely, in permitting his minor son, who was under the age of 15 years, to drive and operate an automobile upon the public highway, does not contain the legal requirément that the negligence was the proximate cause of the injury to the child of appellee. It will.be noticed, however, that the instruction expressly limits the liability for damages, and the right to recover damages, to such damages which were proximately caused by the negligence defined in the instruction. ■ We conclude, therefore, that this assignment of error is not well taken.

Error is also assigned on the refusal to give the 'following instruction requested by the appellant, namely:

“The court instructs the jury that if you believe from the evidence that ordinary care on the part of Hazel E. Seymour for her own safety required her before stepping upon or crossing the public highway where she was injured, at the time and place in question and under all the circumstances in evidence, to look for the purpose of ascertaining whether automobiles were approaching along said highway and not to advance upon said highway without so looking; and if the jury believe, from the evidence that said Hazel Seymour, if she had looked, could by the exercise of ordinary care have ascertained the approach of the defendant’s automobile along said highway in time to have avoided injury; and if the jury believe, from the evidence, that the said Hazel did not so look to ascertain the approach of the defendant’s automobile and that she was struck and injured in consequence and because of such failure, if she did so fail to look and ascertain, in such case the Court instructs the jury to find the defendant not guilty. ’ ’

The appellant argues that “the law as stated by the above instruction should have been submitted to the jury, notwithstanding the fact that the court gave other instructions of a general character stating the duty of appellee’s child to exercise ordinary care for her personal safety.” We cannot agree with this contention of the appellant concerning the refusal of the instruction, but are of opinion that the instruction was properly refused because it did not call the attention of the jury to the law that in determining the question of the care which an infant of the age of seven years is required to exercise should be such care and caution which an ordinarily prudent child of that age, capacity and intelligence, would exercise under like circumstances and surroundings. Fowler v. Chicago & E. I. R. R. Co., 234 Ill. 619. And other instructions, which were modified by the court, presented this element for the consideration of the jury. The instruction was properly refused for the reasons stated. The record does not disclose any reversible error, and the judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Jones

text:
    Duncan G. Dewar, Defendant in Error, v. George M. Loy, Plaintiff in Error.
    Gen. No. 7,682.

      Opinion filed September 24, 1927.
    Rehearing denied May 1, 1928.
    Lee O’Neil Browne and Woodward, Hibbs & Pool, for plaintiff in error.
    Arthur H. Shay, for defendant in error.
   Mr. Justice Jones

delivered the opinion of the court.

On October 27, 1923, defendant in error, Duncan G. Dewar, brought a suit in assumpsit in the circuit court of LaSalle county against plaintiff in error, George M. Loy, for an alleged breach of warranty as to the quality of certain automobile tires and tubes sold by Loy to Dewar. The declaration contained a special count and the common counts. Attached to the declaration was an affidavit of plaintiff’s claim setting forth that Dewar purchased automobile tires and tubes of Loy to the amount of $1,700 under a representation that they were good, sound and merchantable; that all of them, except a portion thereof valued at $300, were defective, unsound and unmerchantable and of no value, and in consequence thereof were wholly lost to Dewar; that plaintiff’s claim was for $1,400, the purchase price of such defective, unsound and unmerchantable tires and tubes, and that such sum was due and owing to him from Loy. Summons was duly served and on October 31,1923, Loy’s written appearance was entered by his attorney. No plea or affidavit of merits was filed. On June 7, 1924, plaintiff in error was defaulted and judgment entered against him for $1,400.

The first ground urged for a reversal is that the judgment is based solely on plaintiff’s affidavit of claim; that the suit is for the recovery of unliquidated damages, and hence the assessment of damages could only be made upon a hearing of evidence. The judgment recites “The court now here, after hearing all the allegations and proofs submitted herein by the plaintiff and being now fully advised in the premises, assesses the plaintiff’s damages on affidavit of amount due to the sum of $1,400.” While it appears from the recital that the damages were assessed “on affidavit,” it also appears that proofs were submitted and heard. This recital imports verity. The proofs submitted to the court are not preserved in any bill of exceptions, therefore it is presumed that the necessary proofs were introduced in the court below to sustain the findings of the judgment. It always devolves upon a party alleging error to make it appear. (Miller v. Glass, 118 Ill. 443; Boyles v. Chytraus, 175 Ill. 370.)

Yet if it be conceded that the recital shows conclusively that the court in assessing the damages did not consider any proofs outside the affidavit, its right to make the assessment is undoubted, unless the damages were uncertain and the amount necessarily rested in the discretion of a court or jury. Such uncertain damages are generally called “unliquidated damages” and the term is defined as damages which are not ascertained, that is, in which some element of uncertainty as to the amount exists which must be settled before a proper determination can be reached. (Kuntz v. Tonnele, 80 N. J. Eq. 373; 17 C. J. 716.) Contracts of warranty imply an agreement to indemnify or make payment of money to the vendee in the event of a breach of warranty. Actions for breaches of warranty and covenant have always been classed as actions ex contractu, and when the damages are certain and definite, judgment can be rendered upon an affidavit of plaintiff’s claim under section 55 of the Practice Act, Cahill’s St. ch. 110, H 55. Here the suit is in assumpsit. The declaration and the affidavit of claim disclose an indebtedness of a fixed and certain amount. The default of the defendant admits that the defective tires were of no valué and wholly lost to the plaintiff. Nothing was left to the discretion of the court in determining the amount of the damages. Under such circumstances, courts would be out of harmony with the spirit of legislative enactment if they held that an assessment of damages could not be made on an affidavit alone. The record on this branch of the case does not warrant a reversal, because, first, the damages were not uncertain and could be assessed on the affidavit alone under section 55 of the Practice Act, and second, if they were uncertain the recital in the judgment that proofs were heard is sufficient to sustain the judgment in the absence of a bill of particulars.

The position taken by appellant that an action of assumpsit will not lie to recover damages for a breach of warranty in the sale of goods is no longer tenable in this State. Where one is damaged by a breach of warranty, he has the choice of two remedies. He may bring an action on the case, based upon the alleged wrongful act of the defendant in committing the breach, or he may bring an action in assumpsit based upon the contractual relation existing and the defendant’s failure to fulfill his express or implied promise of warranty. (1 Chitty on Pleading, 16th Am. Ed., 198; Nevin v. Pullman Palace Car Co., 106 Ill. 222; Wallace v. Tanner, 118 Ill. App. 639; Greenwood v. John R. Thompson Co., 213 Ill. App. 371.) The remedy by assumpsit was adopted to enable the pleader to be in a position to recover under the money counts. (Schuchardt v. Allen, 1 Wall. [U. S.] 359; Vanleer v. Earle, 26 Pa. St. 277.)

It is next claimed that the court erred in assessing the damages without notice to plaintiff in error or his counsel. The judgment recites that personal service was had upon the defendant and that he was called in open court and defaulted for want of a plea. The statute does not require notice to be given where a person has been defaulted for failure to plead and if any rule of court required it, the rule can only be shown here by a bill of exceptions.

The cases cited by plaintiff in error, in support of his contention, originated in the superior court of Cook county, where under a rule in force no motion will be heard or ‘order made in any cause without notice to the opposite party when an appearance of such party has been entered, except where a party is in default or when a cause is reached on the call of the calendar. Straus v. Biesen, 242 Ill. App. 370, holds that under such rule, a defendant who was defaulted for failure to plead was nevertheless entitled to notice of the assessment of unliquidated damages, and that in view of the large number of suits and the volume of business in Cook county, it was a reasonable application of the rule. It will be observed that the court’s holding is based upon the existence of a rule which applies only to cases involving the assessment of unliquidated damages. But regardless of that fact, it is obvious that where no rule exists or where it is not shown by a bill of exceptions, if it does exist, there is no error in assessing damages without notice to the defendant or his counsel. (Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516; Precision Products Co. v. Cady, 233 Ill. App. 72.)

There is nothing in the- record in this case to show that there was any rule of the circuit court of LaSalle county requiring notice to be given to the defendant or his counsel of a default or of the assessment of damages. This court held in Joseph T. Ryerson & Son v. Crawford Locomotive & Car Co., 187 Ill. App. 640, that where rules of court governing the subject of notices are not shown in the record, the Appellate Court will assume there are none. Courts of appeal will not take judicial notice of rules of trial courts. The rules of stfeh courts can only be taken cognizance of on appeal where they are included in the bill of exceptions or appended thereto and properly certified. (Hooper v. Rooney, 293 Ill. 370.)

While it is true that at the inquest on the assessment of damages, a defendant who has been defaulted has the right to appear and cross-examine plaintiff’s witnesses, introduce evidence on his part upon the question of damages, ask for instructions on that question and preserve his right for review on that branch of the case.by a bill of exceptions, yet, if he would exercise such right he must, in the absence of a rule of court to the contrary, take notice of such proceeding and avail himself of such right (Joseph T. Ryerson & Son v. Crawford Locomotive & Car Co., supra; Domestic Building Ass’n v. Nelson, 172 Ill. 386), and no such rule is shown.

Under the record the judgment of the trial court must be affirmed.

Judgment affirmed. '


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    Equitable Life Insurance Company of Iowa v. Mary L. Mitchell, Appellant, and J. T. Freeman, Appellee. Old Colony Life Insurance Company, v. Mary L. Mitchell, Appellant, and J. T. Freeman, Appellee.
    Gen. No. 7,696.

      Opinion filed September 24, 1927.
    Rehearing denied May 1, 1928.
    Alschuleb, Putnam, Flannigen & Johnson, for appellant.
    Dittus & Chatroop, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.

This consolidated case arose upon two bills of inter-pleader filed by the complainant Insurance Companies against Mary L. Mitchell, sometimes known as Mary Helen Mitchell, and J. T. Freeman. Hugh J. Mitchell, in his lifetime, was insured for $1,000 in each of the companies. His wife is the beneficiary named in both policies and now claims the amounts due thereon because of the death of her said husband. Appellee, Freeman, claims them as assignee or pledgee. The causes were consolidated by agreement, and a decree entered ordering the amounts due under the policies paid to Freeman. This appeal is from that decree.

The facts are undisputed and the only question in the case concerns the right of the insured to assign the policies in question without the consent of the beneficiary. Freeman had sold Hugh J. Mitchell, the insured, 125 shares of the capital stock of a corporation for $25,000 payable in instalments. A stock certificate was issued to Mitchell and by him indorsed and delivered to Freeman as collateral security for the purchase price. A written contract was executed by the parties, but afterwards, at Mitchell’s request, Freeman released the stock as collateral and accepted in lieu thereof several insurance policies, including the two policies in question. At the same time the following memorandum was signed by the parties:

“September 10, 1924.
“In lieu of the loan of one hundred twenty-five (125) shares of the capital stock of the Joliet Warehouse & Transfer Company, held by me as collateral security on contract with H. J. Mitchell, dated March 30, 1923, I hereby accept the insurance policies hereto attached and release said stock temporarily, which is my protection in case of the death of said H. J. Mitchell.
J. T. Freeman.
“I hereby acknowledge receipt of the above one hundred twenty-five (125) shares of the capital stock of the Joliet Warehouse & Transfer Company mentioned above.
H. J. Mitchell.”

Mitchell continued to pay the instalments of the purchase price of the stock and at the time of his death had paid a total of $6,200, leaving an unpaid balance of $18,000. Each of the policies contained clauses relating to change of beneficiary and assignment.

Appellant claims that the pledge of the policies passed no interest of the beneficiary to the pledgee as a creditor of the insured because it is prohibited by statute, citing Cahill’s St. 1925, ch. 73, If 342. And in this connection, it urges that the statute is in the nature of an exemption law, and the pledge of the policies was an attempt to give a creditor a claim on the insurance, contrary to said statute; that by the terms of the assignment the husband undertook, prior to his death, to give his creditor a right to resort to insurance to which as a creditor he would have no right by reason of its exemption under the statute.

The cases cited by appellant construing the statute relate to claims of general creditors, and no case is cited in which the statute has been applied as against the assignee of a policy; nor does the statute purport to prohibit the assignment by a husband of a policy in which he is the insured where that right is embraced" in the terms of the policy.

It is claimed that the assignment in question was an attempt to change the beneficiary, and that such a change can only be made in the manner provided in the policy. In support of this proposition, appellant has cited a number of cases where the insured had in mind a change óf beneficiary, and sought to accomplish it by assigning the policy without conforming to its requirements. There is a wide difference between an assignment of an insurance, policy as collateral security for a debt, and the making of a change in the beneficiary of the policy. In one policy the clause relating to a change of beneficiary provides that “the insured may, at any time, subject to the rights of any assignee, designate a new beneficiary” etc. But in our opinion the assignment of the policies in question was not an attempt to change the beneficiary. In no case cited by appellant was there an attempt to assign the policy as collateral security for a debt, with the single exception of Hotel-Men’s Mut. Ben. Ass’n v. Brown, 33 Fed. 11.

It has been repeatedly held that provisions of a life insurance policy requiring notice of an assignment to be given to the company are for the benefit of the company and it alone may complain or object because of a failure to comply with the terms of the policy. The rule seems to be universal. (37 C. J. 431, and 14 R. C. L. 1005, sec. 183, and cases cited.) Where a written assignment is required by the terms of the policy, such requirement is for the benefit of the insurer who alone can take advantage of the want of a writing. (14 R. C. L. 1001, sec. 174.) In this case the insurers raise no question as to the validity of the assignment and admit liability.

This leaves for consideration the proposition that the assignment or pledge did not vest in the assignee or pledgee any greater or different right than that of the assignor or pledgor. It is urged that there are two assignable interests in an insurance policy — that of the insured and that of the beneficiary, and that the insured by assigning his interest left the interest of the beneficiary unaffected, because it is said the assured cannot assign the interest of the beneficiary. Although neither the Supreme Court nor the Appellate Courts of Illinois have had this question directly presented, nevertheless, the cases of Martin v. Stubbings, 126 Ill. 387, and Mayer v. Illinois Life Ins. Co., 211 Ill. App. 285, practically decide it. They hold that where a policy contains a provision for a change of beneficiary by the insured, the beneficiary has no vested interest, but a mere expectancy and that an assignment of the policy by the insured is valid without the consent of the beneficiary. Other jurisdictions have passed squarely upon this question. (Slocum, v. Metropolitan Life Ins. Co., 245 Mass. 565,139 N. E. 816, 27 A. L. R. 1517; In re Greenberg, 271 Fed. 258, 20 A. L. R. 253; Hutcherson v. Sovereign Camp, W. O. W., 112 Tex. 551, 28 A. L. R. 823; Mutual Ben. Life Ins. Co. v. Swett, 222 Fed. 200, Ann. Cas. 1917 B 298; Rosman v. Travelers’ Ins. Co. of Hartford, Conn., 127 Md. 689, 96 Atl. 875, Ann. Cas. 1918 C 1047; 14 R. C. L. Insurance, 998, 1376; 10 L. R. A. (N. S.) 722; 37 C. J. Life Insurance, sec. 142; and cases cited in note 7.)

Appellant claims that the case of Martin v. Stubbings, supra, is not applicable to the facts in this case, because it concerned a certificate in a mutual benefit society, and it is. pointed out in that case and also in Freund v. Freund, 218 Ill. 189, a distinction is made between the rights of the parties in mutual benefit or fraternal societies and in ordinary life insurance companies. There is a clear distinction between them. In Martin v. Stubbings, supra, the distinction concerned the question whether a creditor pledgee of a certificate in a mutual benefit society comes within the class of beneficiaries for whose benefit the particular society was organized, and it held that he did not. In Freund v. Freund, supra, it was decided that the right of an assured to change the beneficiary would seem to exist under certificates in mutual benefit societies where the contract does not take away that right, while in ordinary life insurance policies the right does not exist, unless given by statute or contract.

It is to be observed that in Hubbard v. Strapp, 32 Ill. App. 541, there was no provision in the policy for the change of beneficiary nor for the assignment of the policy. In such a case the interest of the beneficiary is vested and therefore that case is not applicable to the facts in this record. Jarvis v. Blinkley, 206 Ill. 541, in no way militates against the views we have expressed. The other cases cited by appellant concern changes of beneficiaries by attempted assignments and are not in point.

We are of the opinion that the decree of the circuit court awarding the sums due under the two policies in question to appellee was correct and it is accordingly affirmed.

Decree affirmed.