text:
    Jack J. Melody and James N. Melody, Trading as Arcola Motor Company, Appellees, v. Arcola State Bank, Appellant.
    Gen. No. 8,139.

      Opinion filed January 25, 1928.
    Craig & Craig, for appellant.
    Cotton & Nichols and A. C. & Ben F. Anderson, for appellees.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

The issues in this case arise out of a trial over the right of personal property brought by- appellees, petitioners, in the county court of Coles county, against appellant. On January 27, 1927, one Ed Radcliff executed a promissory judgment note to appellees for the sum of $1,000, and to secure said note' said Rad-cliff executed a chattel mortgage to appellees, covering various items of personal property and including “also twenty acres of growing wheat, located in the S. W. corner of the S. W. % of Section 25, Twp. 14 North, Range 8 East of 3rd P. M. Coles County, Illinois.” The chattel mortgage described Radcliff as of Humboldt Township, Coles county, Illinois, and was properly acknowledged before a justice of the peace and recorded with the recorder of deeds in said county.

On February 11, 1927, appellant bank caused a note which it held against said Radcliff to be entered in judgment and an execution issued, which was placed in the sheriff’s hands, who proceeded to levy upon the same property described in the chattel mortgage, including the growing wheat, described “as the south 20 acres of the west one-half of the northwest quarter of Section 25, Town 14 North, Range 8 East of 3rd P. M., Coles County, Illinois.” The growing wheat was. actually upon the lands described in the levy by the sheriff, and was not upon the southwest quarter of said section 25. Appellees gave the notice required by the statute. There was a hearing and trial before the court, a jury having been waived, and a finding and judgment for appellees, from which appellant has prosecuted this appeal.

Appellant assigns error that the wheat growing was improperly described in the chattel mortgage, so that appellees secured no lien upon the same by virtue of the chattel mortgage, and that parol testimony was erroneously admitted in regard to the location of the growing wheat. It was shown that said Radcliff did not own or cultivate any part of the southwest quarter of said section, and that no wheat was growing upon the same, and that the only growing wheat owned by Radcliff was situated upon a part of his farm which was in the northwest quarter of said section. We cannot agree with the appellant’s contention. It was held in Brenneman v. Dillon, 296 Ill. 140, 147: “A deed will not be held void for uncertainty in description if by the aid of extrinsic evidence it can be made certain and the property located. A false description may be rejected for the purpose of giving effect to the deed if the true words are sufficient to designate the land. (8 R. C. L. 1071-1073.) A deed to ‘two entire sections of land lying and situated in the marine settlement and State of Illinois and patented to’ the grantor was held sufficiently definite by the aid of extrinsic evidence showing the two sections of land which had been patented to the grantor and that no other sections had been entered by him to which the description could apply, in Choteau v. Jones, 11 Ill. 300. It has uniformly been held by this court that a description is sufficiently definite which will enable a surveyor to locate the property, either with or without the aid of extrinsic evidence. (Koelling v. People, 196 Ill. 353; Kleiner v. Bowen, 166 id. 537; Hayes v. O’Brien, 149 id. 403; Colcord v. Alexander, 67 id. 581.)”

It was further held in this case: “Deeds are to be construed most favorably to the grantee, and conflicting descriptions should be reconciled, if possible, and the construction adopted which best comports with the intention of the parties. A deed to ‘my house- and lot,’ or to ‘one-half of my lot,’ may be made sufficient by extrinsic evidence.” Decker v. Stansberry, 249 Ill. 487, 492, is very enlightening upon this subject, and based upon extrinsic evidence the court construed the deed so that it conveyed the land which the grant- or actually owned. (Sharp v. Thompson, 100 Ill. 447, 450; Boone v. Clark, 129 Ill. 466, 501.) The rule is that where there is a true description of- the property, but containing within it a circumstance, not of the property itself, but of the location of the property, its geographical position, that is ambiguous or incorrect, then the words creating the ambiguity should be rejected as surplusage. (Myers v. Ladd, 26 Ill. 415, 417; Hutton v. Arnett, 51 Ill. 198, 201; Spaulding v. Mozier, 57 Ill. 148, 150.) The rule is much more liberal in connection with the description of personal property, and extrinsic oral testimony is admissible to explain ambiguities and to point out the property • which it was the intention of the parties to convey.

In Morrison v. Elsy, 190 Ill. App. 374, 379, this court held: “An incorrect description of a part of the property included in a chattel mortgage will not invalidate the mortgage as to the part correctly described. If the description of the property in a chattel mortgage is such as will enable third persons to identify the property, aided by inquiries which the mortgage indicates, then the mortgage is constructive notice to parties even who purchase in good faith. A description wholly false voids the mortgage,' but if a part of the description only is false, this may be rejected and the mortgage will take effect, if the remainder of the description is sufficient, aided by inquiries which the mortgage suggests, to enable the property to be identified. Boyle v. Miller, 93 Ill. App. 627, 5 Am. & Eng. Encyc. of Law, 958; 6 Cyc. 1036.”

Error is assigned based upon the ground that a part of said indebtedness, secured by said chattel mortgage, was for an indebtedness to accrue in the future and that a portion of said indebtedness represented a contingent liability only. As to the indebtedness to accrue in the future at the time the mortgage was given, Badcliff had left his tractor with appellees to be repaired and the work of repairing had not been completed or the bill for repairs rendered. The work was performed by appellees in accordance with the contract, and the repair bill amounted to the sum of about $208, making the total indebtedness $1,117.60, for which the one thousand-dollar note was given. This indebtedness was properly secured by the chattel mortgage. In Good v. Woodruff, 208 Ill. App. 147, 150, it was held: “A mortgage may be made to secure future advances and become a prior lien for the amount loaned, although no money is advanced until after subsequent mortgages are in force. Schimberg v. Waite, 93 Ill. App. 130; Collins v. Carlile, 13 Ill. 254; McConnell v. Scott, 67 Ill. 274; Ackerman, v. Hunsicker, 85 N. Y. 43; Platt v. Griffith, 27 N. J. Eq. 207; 1 Jones on Mortgages, sec. 372. And this is true although the mortgage does not state that it is given to secure future advances. Collins v. Carlile, supra; Shirras v. Caig, 7 Cranch (U. S.) 50; Platt v. Griffith, supra.

Error is assigned on the ground that a portion of said indebtedness represented a contingent liability, appellees having signed a note with said Badcliff at the bank for $394, which note was not yet due and it is contended that the proofs do not show that appellees will have to pay the note. It was held in Goodheart v. Johnson, 88 Ill. 58, 61: “It is insisted that upon the state of facts appearing, the chattel mortgage was fraudulent and void as against creditors. The transaction, was in fact somewhat different from what it appeared to he on its face. Still, if the mortgage, for the most part, was not to secure the payment of an absolute debt, as it purported, but was in truth, and in good faith, to secure against a contingent liability as surety, the latter would be a good consideration and sufficient to sustain the mortgage. And although appellee had not in fact paid the debts for which he was surety, if he would have them to pay, as was the undisputed testimony, he might well hold the property or its proceeds to apply to the payment of such debts.”

From all the testimony in this case it is reasonable to infer that appellees will be required to pay the note at the bank which was signed by them, with Badcliff, and that it and the other indebtedness which the chattel mortgage was given to secure, constituted bona fide indebtedness owing by said Badcliff.

Finding no error in the record which will warrant a reversal of the cause, the judgment of the county court of Coles county is affirmed.

Affirmed. ,


source: Caselaw Access Project

author: Mr. Presiding Justice Shurtleff

license: Public Domain

text:
    A. H. Wright and Fred Wright, Trading as A. H. Wright & Son, Appellees, v. Helen Baird, Appellant.
    Gen. No. 8,142.

      Opinion filed January 25, 1928.
    O’Harra, O’Harra & O’Harra, for appellant.
    Clyde P. Johnson and Hartzell, Cavanagh & Martin, for appellees.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

Appellees filed their suit based upon the common counts to the December term, A. D. 1923, of the county-court of Hancock county, to recover for alleged work, labor and services rendered and for materials claimed to have been furnished in changing the plumbing, installing plumbing fixtures, repairing and changing the heating plant in the summer of 1923, in the residence in which appellant and her husband, James D. Baird, then lived and which they owned as tenants in common. Appellant filed the general issue and two separate pleas. The first special plea set out the nature of the work claimed to have been performed by appellees, and further set out the names of said firm and all of their employees' and of all persons claimed to have performed any work in connection with said premises, and charged that none of said persons had a certificate authorizing them or either of them to engage in or work at said business of plumbing, but that said persons were engaged in and working at said business of plumbing in violation of the statutes of this State.

The second special plea was the same as the first except in addition thereto it set out an ordinance of the city of Carthage, in said county, regulating the obtaining of licenses for plumbers in said city and passed in pursuance of the act of the general assembly regulating plumbers and the obtaining of licenses to do plumbing work, passed June 29, 1917. Appellees demurred to the two special pleas, which demurrer was sustained by the court. Appellant stood by the special pleas. There was a trial by jury and a verdict in favor of appellees in the sum of $572.39. A motion for a new trial was overruled and judgment entered against appellant for the amount found by the verdict, and appellant has brought the record to this court for review.

There are numerous assignments of error made, and we shall not undertake to cover all of them. The chief error assigned arises out of the ruling of the court in sustaining the demurrer to appellant’s two special pleas. Appellant contends that appellees cannot recover for any work done or material furnished in the line of plumbing without having complied with the act of the general assembly regulating plumbers, passed June 29, 1917, and that is one of the principal questions in the case. Appellees contend that the act is a measure merely to procure revenue and in no manner affects the validity of the contract expressed or implied. The title of the act (Cahill’s St. ch. 109a) is: “An Act to provide for the licensing of plumbers, and to provide for the supervision and inspection of plumbing and providing penalties for the violation thereof. ’ ’ The act provides: “Any person now or hereafter engaging in or working at the business of plumbing * * * shall first receive a certificate thereof in accordance with the provisions of this Act.” Section two, Cahill’s St. ch. 109a, IT2, provides: “Any person desiring to engage in or work at the business of plumbing either as a master plumber or employing plumber or as a journeyman plumber, shall make application to a board of examiners * * * and be compelled to pass such examination as to his qualifications as said board with the approval of the Department of Registration and Education may direct.” The act provides for the creating of a board of examiners, their meetings, the scope of the examination, namely, that said board shall examine said applicants as to their practical knowledge of plumbing, house drainage and plumbing ventilation and other matters, and if satisfied of the competency of such applicant, shall thereupon issue a certificate to such applicant authorizing him to engage in or work at the business of plumbing, whether as a master plumber, employing plumber, or as a journeyman plumber. The act provides for the fees to be paid for such certificates and that they shall be renewed each year. Section five, Cahill’s St. ch. 109a, ft 5, of the act requires each city, town or village in the State, having a system of water supply or sewerage, by ordinance or by-laws, within three months after the passage of the act, and with the advice of the department of public health, to prescribe rules and regulations for the materials, construction, alteration and inspection of all plumbing and sewerage placed in or in connection with any building in such city, town or village, and section five further provides: “and the board of health or proper authorities shall further provide that no plumbing work shall be done except in case of repairing of leaks without a permit being first issued therefor and upon such terms and conditions as such city, town or village shall prescribe.”

The enforcement of the act as against cities, towns and villages is specially placed in the hands of the Attorney General of the State and the department of registration and education, with directions to use the writ of mandamus. The act further provides that any person violating' any provision of the act shall be guilty of a misdemeanor and penalties are provided therefor.

It seems plain from the reading of the statute that the measure is broader than a mere act to procure revenue, and that its purport is to conserve the health of the citizens of the State, passed under the police power of the State. Under a substantially similar act, passed in 1897, when before the. court in Douglas v. People, 225 Ill. 536, the court said:

“It is first contended that the act hereinbefore referred to is in conflict with those provisions of the constitution of this State and of the United States which provide that no person shall be deprived of life, liberty or property without due process of law. The right of the citizen to follow any legitimate business, occupation or calling which he may see fit to engage in, and to use such right as a means of livelihood, is fully recognized in the constitutions of this State and of the United States. (Gillespie v. People, 188 Ill. 176; Bessette v. People, 193 id. 334.) Such right, however, is subject to the paramount right of the State to impose upon the enjoyment thereof any reasonable regulation the public welfare may require, and the courts have frequently held that the legislatures of the several States may impose any restraint and prescribe any requirement they, may deem proper for the protection of the public against the evils resulting from the incapacity and ignorance of persons engaged in the plumbing business, as master plumbers, employers of plumbers or journeymen plumbers. Singer v. State of Maryland, 8 L. R. A. 551; People v. Warden of the City Prison, 27 id. 718; State v. Gardner, 58 Ohio St. 599; 41 L. R, A. 689.”

And the court further said: “In People v. Warden of the City Prison, supra, the Court of Appeals of New York was considering the constitutionality of an act providing for the licensing of employing plumbers, and that court said: ‘We know that important plumbing work calls for plans and designs and requires skilled supervision. It is some guaranty of these requirements being met that the plumber employed upon the particular work, and who must employ plumbers and assistants in carrying out the work engaged upon, is competently certified and therefore held out to be skilled and capable in his business. The layman, in his ignorance, is obliged to put some trust in the plumber he engages, for the plumber’s work is not only one calling for the exercise of skill, but it is done in places which are dark or more or less inaccessible. The legislature, in creating a system by which the qualifications of plumbers who propose to have work performed by others under their direction shall be determined, as it seems to me, aids the citizen, in an important degree, in placing his confidence and furnishes some safeguard against the performance of bad and unsafe work. That the men employed by the master plumber may prove untrustworthy in practice or may neglect the work committed to them certainly can furnish no ground for attacking the purpose of the statute, for the presumption and the natural probability are the other way, — that a master plumber who has been certified by the board will exercise care in the selection of his employees, and he will be competent to see and correct their faults and omissions. Every reason, in my opinion, which bears upon the citizen’s comfort and health demands that we sustain this statute as a step in the right direction.’ ”

But it is contended by appellees that inasmuch as the act, in terms, does not declare contracts in violation of the act void, appellees may recover. We are not in accord with this view. The nature of the certificate or license is fully defined in Wilkie v. City of Chicago, 188 Ill. 444, 453: “It is insisted that the term ‘certificate,’ used in the law, does not mean a license, and therefore the provisions are not inconsistent. The object of the act is to be stated in its title, and one of its purposes is there declared to be the ‘licensing’ of plumbers. The certificate, by express terms, authorizes the recipient to engage in the business of plumbing. A certificate or paper having that effect is a license, which, in its general sense, is an authority to do something which without such authority is prohibited. Webster defines a license to be a formal permission from proper authorities to perform certain acts or carry on a certain business which without such permission would be illegal. The certificate is within that definition and is a license.”

It has been held in Douthart v. Congdon, 197 Ill. 349, 355: “ ‘Where, by the terms of a statute or city ordinance, it is made illegal for a broker to exercise his business without a license, a broker cannot recover commissions for services rendered without such license.’ ” In this case the court further said:

“The ordinance in the case at bar denounced as unlawful the prosecution of the business of a broker in grain without a license, and also provided for the infliction of a fine as a punishment or penalty for each transaction of a broker in violation of the ordinance.The particular transaction for which the sum of $31.25 was charged and included in these notes was an unlawful act, and subjected the said brokers to punishment by way of a fine. It was illegal, and entered into and formed a part of the consideration for the promise contained in each of the notes. The rule has long been established that if any part of an entire consideration for a promise or any part of an entire promise be illegal the whole contract is void. (Henderson v. Palmer, 71 Ill. 579; Tenney v. Foote, 95 id. 99; Metcalf on Contracts, 246; Addison on Contracts, 905; Chitty on Contracts, 730; 1 Parsons on Contracts, 456; 1 Parsons on Notes and Bills, 217; Story on Promissory Notes, 190; Byles on Bills, 211; Chitty on Bills, 94; 4 Am. & Eng. Ency. of Law, — 2d ed. — 192; 17 Am. & Eng. Ency. of Law, — 2d ed. — 308, Didoe v. Webb, 20 Ohio St. 431.)”

The court held in that case: “The whole consideration is the basis of the whole promise. The parts of the consideration are inseparable. Such is the doctrine of the text books.”

Substantially the same rule is laid down in Friedland v. Isenstein, 191 Ill. App. 109, and in Weinshenker v. Epstein, 176 Ill. App. 104. It has been held that a person practicing one of the professions could not recover for his services unless he had a license to practice. Baxter v. City of Venice, 271 Ill. 233; Valley Terminal Railway v. Eggman, 222 Ill. App. 457.

It was shown by the special pleas that the claim for the services rendered and material furnished by appellees was to cover services and material in appellant’s home in the city of Carthage, in the county of Hancock, where appellant resided, and that the city of Carthage had complied with the said act. Appellees bring their suit under the common counts and claim to recover upon a completed contract to do specified work and furnish materials. The price for the labor was agreed upon. It is plain that appellees cannot recover upon this contract under the proofs and record in this cause. It is the opinion of this court that appellees can recover nothing for work and services performed in the line of plumbing or doing plumbing-work or while engaged in the business of plumbing-under the proofs in this case, unless they have complied with the legislative act. As to whether appellees may recover for any material furnished by appellees to appellant for the work in question, we can only add that the record in this case does not raise that question, and the proofs are too incomplete to enable us to pass upon it.

There is merit in the assignment of error that the proofs do not show the fair cash market value of the goods and materials furnished by appellees, and objection should have been sustained to the method of proving that fact. Objection was made to the introduction of the testimony as to the goods furnished. It was shown that nearly all of the goods -and materials sold or furnished were recorded on an original slip by a salesman, and that the slips were turned into the bookkeeper to post upon the books. Appellees had destroyed the slips nearly four years ago. The books were admitted in evidence over the objection of appellant. There should have been some further testimony as to the delivery of the goods and materials. Some other errors are pointed out which doubtless will be avoided on another trial.

For the reasons stated the judgment of the county court of Hancock county is reversed and the cause remanded with directions to that court to overrule the demurrer to appellant’s first and second special pleas, and for further proceedings in accordance with the views expressed in this opinion.

Reversed and remanded ivith directions.


text:
    R. V. Carroll et al., Appellees, v. Stella Wilkerson et al. Lester Yard and Earl Yard, Appellants.
    Gen. No. 8,147.

      Opinion filed January 25, 1928.
    Harold B. Tunnell and Frank M. Ramey, for appellants.
    Harry C. Stuttle, guardian ad litem for George W. Carroll, appellee.
    Geo. P. O’Brien, for appellees.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

Appellees filed their amended bill in the circuit court of Montgomery county to construe the will of James Carroll, deceased. One of the defendants, George W. Carroll, who was under legal disability, answered by his guardian ad litem. All of the other defendants demurred to the amended bill. Their demurrer was overruled and defendants answered. Replications were filed and evidence was taken in open court. The chancellor found the allegations of the bill to be true, and entered a decree in accordance with the prayer of the bill.' Two of the eleven defendants in the court below have appealed from the decree. One of the defendants, George W. Carroll, by his guardian ad litem, joins with appellees in seeking to uphold the decree of the circuit court.

James Carroll, who executed the will under construction, died on October 11, 1925, at the age of 95 years. R. Y. Carroll, a son of the testator and one of the appellees,"was named executor and qualified as such. The will involved was executed and published on May 10, 1919. At that time testator was 89 years old.

Decedent died leaving a widow, Elizabeth Carroll, who died on November 3, 1925, less than one month after decedent’s death. Decedent died leaving children, namely, Richard V. Carroll, Mary I. Wright, Laura Bell Burton, Lulu May Willis and George W. Carroll, all of whom survived each of their parents. Another daughter, Ethel Flowers, died on September 25, 1918, before the execution of the will, leaving two children, Oval Hunt and Kathryn Rademacher, grandchildren of decedent, both of whom survived their grandparents. A daughter, Minerva Yard, died on September 3,1893, leaving Earl Ward, Lester Yard and Chester Yard, grandchildren of said decedent, and Dorothy Freeman and Delberta Freeman, a son and daughter of deceased daughter of said Minerva Yard and great grandchildren of said decedent, all of whom survived the said decedent and his widow. Another daughter of decedent, Martha Treadway, died on September 13, 1893, leaving Stella Wilkerson and Grover C. Treadway, her children and grandchildren of said decedent, both of whom survived their grandparents. Hattie C. Paul, William Carroll, Elizabeth A. Carroll, Emma D. Carroll and Ella N. Carroll, all children of decedent, died a great many years prior to the execution of said will, leaving no children or descendants of a child or children them or either- of them surviving.

By his will testator gave all of his property to his widow for and during her natural life. Upon the death of his widow testator made specific devises of real estate in separate portions to his children and grandchildren, namely, to Richard Y. Carroll, Mary I. Wright, Laura Bell Burton, Lulu May Willis and George W. Carroll. Likewise he made separate devises of real estate to his grandchildren, the daughters of Ethel Flowers, deceased, reciting thereafter: “This will make my grandchildren, daughters of my deceased daughter, Ethel Flowers an equal portion of my estate,” to his grandchildren, the sons and daughters of Minerva Yard, deceased, and to Ms grandcMldren, the son and daughter of Martha Treadway, deceased, the various devises being followed by the descriptions of the property devised in each case about which there is no contention in this cause. The last paragraph of the will, which immediately precedes the nomination of an executor, reads as follows:

“Furthermore, I give, devise, and bequeath that after the death of my wife, Elizabeth Carroll, all the notes, bonds, money and personal property that shall remain a part of my estate shall be divided equally among my children, with the exception of Mary I. Wright, who has received a larger bequest than the others.”

By a codicil R. V. Carroll was named as the sole executor of the will. After the administration of the estate there remained in the hands of the executor as a part of said estate the sum of $9,000, proceeds of notes, bonds, money and personal property, to be distributed, and the complainants prayed a construction of said will and that said funds be distributed to the living children of said decedent (except Mary I. Wright), namely, Richard V. Carroll, Laura Bell Burton, Lulu May Willis and George W. Carroll, in accordance with the terms of the will.

Appellants by their answer denied that said James Carroll intended in said will that all notes, bonds, money and personal property should go to his children living at the date of the making of the will and surviving said James Carroll, with the exception of Mary I. Wright, but they say that said testator intended, and the correct construction of said will is, that after the death of Elizabeth Carroll, widow, all notes, bonds, money and personal property remaining part of said estate, after paying costs of administration and debts of said estate, should be divided equally among the surviving children of said James Carroll, except Mary I. Wright, and among the issue of such of the testator’s children as had died before said testator, leaving issue surviving said testator and said Elizabeth Carroll, such issue to take per stirpes the shares to which their respective parents would have been entitled, had they survived said James Carroll and said Elizabeth Carroll.

In the order construing the will the court found that it was the intention of the testator to give the personal property involved to testator’s living children, except Mary I. Wright, and construed the will and decreed that the fund should be distributed in accordance with the prayer of the bill of complaint. Appellants have brought the record by appeal to this court for review.

Since the amendment of 1911 to section 50 of the Chancery Act, Cahill’s St. ch. 22, ft 50, the existence of a trust is not essential to the jurisdiction of equity to construe wills where there is doubt or uncertainty as to the rights and interests of parties arising out of ambiguous language in the will. (Bimslager v. Bimslager, 323 Ill. 303; McCarty v. McCarty, 275 Ill. 573; Sherman v. Flack, 283 Ill. 457; Wakefield v. Wakefield, 256 Ill. 296; Ward v. Caverly, 276 Ill. 416.) But it has also been held that where the only point in issue in a bill to construe a will is clearly laid down in a line of decisions, so that it can be regarded as settled law, the will is neither uncertain nor ambiguous and a court of equity will not take jurisdiction under the Act of 1911 where there is no equitable estate to be protected nor equitable right to be enforced. (Greenough v. Greenough, 284 Ill. 416; McCarty v. McCarty, supra; Metsker v. Metsker, 320 Ill. 547.)

The question at issue in this case involves a construction of section 11 of the act concerning “descent,” Cahill’s St. ch. 39, fí 11, and particularly in a case where there are children (legatees) who have died prior to the execution of the will leaving issue, and children who have died many years prior to the execution of the will, leaving no issue, and where there is a provision in the will bequeathing a fund to “the children of testator,” as a class, that it “should be divided equally among my children, except Mary I. Wright.” The section in general has been exhaustively construed, possibly against the weight of authority, but with the better reasoning in Kehl v. Taylor, 275 Ill. 346, and it was held that in a case where the legatee or' devisee died leaving issue, the issue would succeed to the legacy or devise, whether the legatee or devisee died before or after the execution of the will. In Kehl v. Taylor, supra, William M. Miller died testate seized of certain lands. Five children were born to the testator, three of whom had died prior to the execution of the will in question. Two of the children had died intestate, leaving no child or children or descendants thereof. The third, Nancy Bell Walton, had died two years prior to the execution of the will, leaving her surviving a daughter, Nancy Bell Leinweber, one of the parties to said suit. The testator devised certain lands to his wife to have and use during her life “and at her death to my children in fee simple absolutely.” In a partition suit the question arose squarely whether the grandchild, Nancy Belle Leinweber, took an interest in the land, and the court, reversing the circuit court of Mason county, held that under the terms of the will and the construction of said section 11, Cahill’s St. ch. 39, If 11, that the granddaughter took one-third interest in the lands. In that case the facts were identical with the facts in the case at bar. There were two children who had died prior to the execution of the will, leaving no issue, but there was no contention that they came within the class denominated “children” by testator’s will. In Kehl v. Taylor, the court, citing the rule in other States, held:

“The decisions in In re Nicholson’s Estate and Pimel v. Beljemann lose much of their force as authority in this State under the uniform holdings of our court above cited, that the statute applies to gifts to children as a class as well as to gifts to them by name. In the following cases, in construing similar statutes, the legatees died before the will was made, but it was held that the children of such legatees took what such legatees would have taken had they survived the testator: Nutter v. Vickery, 64 Me. 490; Bray v. Pullen, 84 id. 185; 24 Atl. Rep. 811; Minter’s Appeal, 40 Pa. 111; Bradley’s Estate, 166 id. 300; 31 Atl. Rep. 96; Wildberger v. Cheek, 94 Va. 517; 27 S. E. Rep. 441; Jamison v. Hay, 46 Mo. 546; Mower v. Orr, 7 Hare, 473; Winter v. Winter, 5 id. 306; Barkworth v. Young, 4 Drew, 1; Wisden v. Wisden, 2 Smale & G. 404.

“Without reviewing the various decisions, on this question and the reasons given to sustain the conclusions there reached, we think the construction most in harmony with both the spirit and intention of the act as well as the policy of our law is that which allows all devisees or legatees of the class named in the statute to take, irrespective of the time of their death, either before or after the time of the execution of the will, so long as their death occurred prior to that of the testator, leaving issue, and no provision is made for such contingency. Justice and equity would seem to require that all children, in the absence of special circumstances, should inherit equally from their parents, and that in case of the death of one or more of them their children should take the portion which their deceased parent would have taken had he or she survived the testator, and such is the policy of our laws of descent.”

The court further held: “Under the harsh rule of the common law all gifts and devises were avoided by the death of the devisee or legatee before that of the testator. At common law a bequest or devise by will to a child of the testator who was dead when the will was made was void, and a bequest or devise to a child who died after the will was made and before the testator, lapse; and such rules would prevail in this State but for the statute in question, and do prevail where the beneficiaries are other than children or grandchildren.”

And the court further said: “It was to provide against such contingencies that this statute was enacted. It does not, in direct terms or by implication, take any notice of the time of the execution of the will or impose as a condition to its operation or non-operation upon a gift or devise that the devisee or legatee shall be in esse at the date of the execution of the will. The only conditions imposed by it are, that the devisee or legatee shall die before the testator, leaving issue surviving the testator, and that no provision shall be made in the will for the contingency of the death of such devisee or legatee before that of the testator. The words ‘shall die’ refer not to the time of the execution of the will but to the death of the devisee or legatee before the testator, and, we think, include those whose death occurred prior to the execution of the will as well as those whose death occurred in the interim between the making of the will and the death of the testator.”

Section 11 of the Statute of Descent, Cahill’s St. ch. 39, TI 11, provides as follows: “Whenever a devisee or legatee in any last will and testament, being a child or grandchild of the testator, shall die before such testator, and no provision shall be made for such contingency, the issue, if any there be, of such devisee or legatee, shall take the estate devised or bequeathed as the devisee or legatee would have done had he survived the testator, and if there be no such issue at the time of the death of such testator, the estate disposed of by such devise or legacy shall be considered and treated in all respects as intestate estate.”

Appellees in this case contend strenuously that the wording in the will — “-shall be divided equally among my children” — indicates that the beneficiaries are to take as individuals, and again appellees contend that if the bequest in the case at bar is to be treated as a gift to a class, then the class includes all of testator’s children, living or dead. As to the first contention, we can see no distinction in the wording of the wills between that in Kehl v. Taylor and the case at bar, except in the Kehl case it is a devise of real estate and in the case at bar personalty is bequeathed. The contention is in direct conflict with the rule laid down in Kehl v. Taylor, supra. The second contention is that if children are to be taken as a class, then those dying without issue should be included as well as those dying leaving issue; that under the last clause in section 11, Cahill’s St. ch. 39, 11, the five children of testator who died leaving no issue — some of them dying in infancy and four of them dying about 50 years -before the execution of the will — would take their equal part and portion in the bequest, as a bequest, which would become intestate estate to be divided among the heirs at law of testator. This would include Mary I. Wright, excluded by the terms of the bequest.

There are several answers to this contention. It might be said that the same situation was before the court in Kehl v. Taylor, supra, and was ignored by the court and counsel. That part of section eleven, upon which appellees base their contention, reads, “and if there be no such issue at the time of the death of such testator, the estate disposed of by such devise or legacy shall be considered and treated in all respects as intestate estate.” It must be noticed particularly that the statute uses the terms “the estate disposed of by such devise.” But under the common law the devise or legacy to a child of the testator who was dead when the will was made was void, and unless such child left issue surviving the common law remains in force in this State and is not changed by the statute in question. It was only a bequest or devise to a child who died after the will was made and before testator

that lapsed under the common law, .or that could, by any reasoning under the statute in question, be construed as intestate estate, and that question does not arise in this case. There was no estate disposed of to the five children of testator, who died long prior to the making of said will leaving no issue surviving, for the reason that no such devise or bequest could be made. It would be void in its inception. In this connection the language of the statute referring to “the estate disposed of by such devise or legacy,” contemplates an estate, inchoate in its nature that may ripen into a succession except for the happening of some contingency, and cannot contemplate an estate which is void and beyond all possibility of inception. Appellees urge strongly that the testator is presumed to have intended by his will to dispose of all of his property and to leave no part of it as intestate, and that the court will adopt any reasonable construction of the will rather than hold that the testator intended to die intestate as to any of his property, citing Suiter v. Suiter, 323 Ill. 519; Pontius v. Conrad, 317 Ill. 241; Wells v. Dalies, 318 Ill. 301; Watts v. Killian, 300 Ill. 242; Jensen v. McMahon, 324 Ill. 574. Such is the law, and the presumption is so strong that it is conclusive that testator did not intend to bequeath any of his property to children who had died without issue over 50 years before the execution of the will, for the purpose of producing an intestacy as to a portion of his estate. The testator is presumed to have known the law and to have been familiar with or had counsel upon the ruling made in Kehl v. Taylor, supra, which was the law of this State three years prior to the execution of said will, and which has been followed in McNamara v. McNamara, 293 Ill. 54, 58.

In the opinion of this court the decree of the circuit court of Montgomery county should be reversed and the cause remanded, with directions to enter a decree directing a division of said fund into seven equal parts to be distributed one part each to the living children of said testator (except Mary I. Wright), and one part each to the descendants of Ethel Flowers, Minerva Yard and Martha Treadway, the three deceased daughters of testator, as found by the decree of the lower court, and it is so ordered.

Reversed and remanded with directions.


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    The Chicago, Springfield & St. Louis Railway Company, Appellee, v. R. D. Martin, Appellant.
    Gen. No. 8,153.
    Opinion filed January 25, 1928.
    Jesse Peebles, for appellant; Don M. Peebles of counsel.

      Aaron Sapiro, Epler C. Mills and Murphy & Hemp-hill, for appellee.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

Appellee filed its suit in the Macoupin county circuit court against appellant to recover upon a subscription for stock, purporting to have been made by appellant in appellee railway company in the sum of $1,000, for 10 shares of the preferred capital stock of said company. The instrument contained the provision that if 2,000 shares were not subscribed by October 1, 1925, that the company should refund to the undersigned all moneys paid in on the subscription. The instrument was dated July 18, 1925, and appellant had paid in $50 upon the subscription.

The appellant filed the plea of the general issue, and filed with it a notice of special matters of defense. These special matters of defense set forth the fact that the plaintiff railway company is indebted to B. D. Martin, the' defendant, in a total sum of $10,303.62. Of this amount it is claimed that the company owes Martin $1,303.62 for expenses paid by Martin or incurred by him in and about the transaction of the business of the company and in performing services for it, and the balance of the cross-demand is for the sum of $9,000, which is claimed for services rendered by Martin at the request of the company in the securing of stock subscriptions and the work of refinancing the corporation. A jury was waived, the proofs submitted to the court and there was a finding and judgment in favor of appellee in the sum of $797.93, and the record is before this court by appeal, for review. Appellant assigns error on the court’s rulings as to the admission of evidence.

To establish the condition precedent, contained in appellant’s written subscription, namely, “If on, or before, the 1st day of October, 1925, two thousand shares of said preferred capital stock are not subscribed said company shall return to the undersigned all moneys' paid in on this subscription, less his or her pro rata share of the costs incurred,” appellee offered the list of subscriptions copied and certified to by the secretary of appellee, with the seal of the corporation attached, and over the objection of appellant the same were admitted in evidence in pursuance of section 15, chapter 51 of the Revised Statutes, Cahill’s St. ch. 51, ¶ 15. Appellant had the right to have the original subscriptions brought into court by a proper subpoena, but he made no effort to obtain them. Some of the subscription agreements appellant attempted to attack by the offer of parol testimony, and attempted to show that they were not made in good faith. When these agreements were reduced to writing and signed, all oral agreements, whether prior to or contemporaneous, were merged in the agreement and parol testimony could not be received to vary the legal import of the writing. (Banet v. Alton & S. R. R., 13 Ill. 504; Dill v. Wabash Valley B. Co., 21 Ill. 91; Tonica & P. R. Co. v. Stein, 21 Ill. 96; Corwith v. Culver, 69 Ill. 502; Stone v. Vandalia Coal & Coke Co., 59 Ill. App. 536; Merrick v. Consumers Heat & Electric Co., 111 Ill. App. 153; Newmann v. Sexton, 156 Ill. App. 517.) We find no errors in the court’s rulings upon the admission or rejection of evidence.

Appellant presented a counterclaim for an indebtedness claimed to be owing to him from appellee in a considerable amount. There was a large amount of testimony taken as to this claim. It was not disputed but that appellant performed services in soliciting stock subscriptions, and other subscribers of stock did the same.

The subscription agreement is prefaced by the statement: “Whereas, the undersigned and others desiring to provide for the continued operation of that part of the railroad formerly known as the main line of the Chicago, Peoria & St. Louis Railroad Company, * * *. Now, therefore, for and in consideration of the premises and of the advantages to the undersigned of the continued operation of said line of railroad, ” etc. It was shown that appellant was a considerable landowner at Palmyra, through which the road ran, and was much interested in the continuance of the service. A large number of witnesses testified that they had heard appellant make statements that he was getting nothing for his services. The most that the testimony shows as a foundation for this claim is that one Stevenson, president of appellee, stated to appellant that if he would help in securing the subscriptions for stock, he (Stevenson) would see that he was reimbursed his expenditures and would ‘1 treat him right.” It was shown that Stevenson or the president of the company had no power or authority under the by-laws of appellee company to bind the company by any such arrangement, and appellant is bound by the by-laws of the corporation of which he is a member. Mandel v. The Swan Land & Cattle Co., 51 Ill. App. 204. The court in its finding did allow to appellant the full amount of his expenditures, but did not allow anything for services. We find no error in the record that would warrant a reversal of the judgment in this case, and the judgment, therefore, of the circuit court of Macoupin county is affirmed.

Affirmed.


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    Ottellia A. Schneider, Appellant, v. Walter G. Schneider, Appellee.
    Gen. No. 8,164.
    Opinion filed January 25, 1928.
    Hogan & Reese and John W. Coale, for appellant.
    John W. Preihs and Carl H. Preihs, for appellee.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

Appellant, as complainant, presented her bill for a divorce from appellee to the circuit court of Christian county, which was based upon the grounds of extreme and repeated cruelty. Appellee answered the bill and upon leave of court presented his cross-bill for a divorce from appellant based, also, upon the grounds of extreme and repeated cruelty. Appellant answered the bill and the cause was set for trial after appellee had amended his cross-bill and charged appellant with adultery. The custody and support of a minor child, Jeannette Schneider, was also involved in the issues as to both bills. Appellant was represented by able and competent counsel.

Before the commencement of the trial there had been some conference between the parties and their counsel as-to the subject of a property settlement and the support and custody of the child. It appears from the record that an accord was arrived at as to all such matters, and that appellant was to have the care and custody of the child from September first to June first of the following year of each year during the school period, with the right of visitation by the father, and that appellee was to have the care and custody of the daughter during the vacation period from June first to September first of each year, with the right of visitation by the mother. Appellee was to pay appellant the sum of SO dollars per month for the support of the daughter and buy her clothing at an expense not to exceed $120 per year, and appellee' also was to pay the necessary doctor’s bills for the child.

Prior to the filing of this cross-bill, appellant had removed from the State of Illinois and with her daughter was living in the State of Missouri.

After the foregoing negotiations were carried out appellant, with the full knowledge and approbation of her counsel, withdrew her answer to the cross-bill, dismissed her original bill and sat inside the railing of the court while a default was taken against her and the proofs upon the cross-bill were presented to the court by appellee and his counsel. Appellee charges that appellant’s counsel were also in court at that time, and from the court’s statement in this proceeding it would appear that the charge is true. A decree was granted and the marriage dissolved, and the terms of the settlement approved by the court, although by the terms of the decree the court reserved the full power to modify or change the decree as to the support, care, custody and education of the minor child. The testimony offered at the hearing was not preserved in the record, but the court in the decree found the facts upon which the decree was based, and among other things found, “Ottellia A. Schneider in the month of March, 1926, came into the place of business, used profane language and threatened to take the life of Walter Gr. Schneider. In June, 1926, Ottellia A. Schneider stabbed him with a blunt instrument, cutting a deep wound in the back; further and at a different place in June, 1926, Ottellia A. Schneider struck the complainant violent blows to the head; further at another different time, Othellia A. Schneider struck Walter Gr. Schneider about the body with a crutch, inflicting bodily bruises and injuries.” This decree was entered April 26, 1927. Later, on June 13, 1927, through different counsel, appellant presented a petition by way of suggestion to the court, stating that said decree was entered as a result of negotiations and settlement as to property rights, and that as a result of said negotiations the petitioner did not appear, and that at said time she did not understand or have knowledge of the testimony which appellee proposed to produce against her, and that said testimony was not true in fact. The petitioner denied the allegations in the cross-bill and stated that the evidence heard in said cause was not true, and the petitioner asked leave to offer testimony in support of said motion. There was a motion to strike the petition, which was denied, and appellant was permitted to offer proofs in support of the motion. We have examined these proofs carefully. No attempt was made to establish the testimony heard on the original hearing or the names of the witnesses or their number. One of appellee’s witnesses, William E. Eybel, was sworn and testified, but we are unable to determine how or in what manner his testimony was different from that on the original hearing. The petitioner did deny some of the facts as established by .the decree.

We are much impressed by the statement of the court at the close of the hearing: “I don’t believe the evidence produced here will warrant the Court in setting aside the decree. The defendant in the cross-hill was represented by able and honorable counsel and she seems to have been fully advised as to what her rights were, and at the request of her counsel sat in the court room, inside the railing here, and heard the evidence adduced on the stand, which the Court thought at the time warranted the granting of the decree on the ground of extreme and repeated cruelty, and I have the impression that if the property settlement had been satisfactory this matter would not have been brought here.” The motion was denied. The court saw the parties and the witnesses and was in a better position to exercise his discretion than this court could be, where none of the proceedings that took place are even in the record. It is not a question of the sanctity of the marriage relation or the public interest attaching to the same, but a mere matter of a reasonable excuse for setting aside a default and decree. No excuse of any kind is shown by the petitioner for vacating the decree and the court did not abuse its discretion in so holding. Hillenbrand v. Hillenbrand, 211 Ill. App. 624.

The judgment of the circuit court of Christian county is affirmed.

Affirmed.


text:
    John Siegle, Appellant, v. Harry Mitchell and Irwin Mitchell, Appellees.
    Gen. No. 8,167.

      Opinion filed January 25, 1928.
    Capps & Weaver and L. T. Graham, for appellant.
    William Mumford for appellees.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

This cause was before this court at a former term on an appeal, and the appeal was dismissed for the reason that the record did not show that á proper or sufficient final judgment had been entered by the circuit court of Pike county, although a memorial was found in the minutes of the judge of that court tending to show that the court had intended to enter some kind of a judgment. Upon the remanding of the cause and the redocketing of the same in said court, the court, on motion of appellant, proceeded to enter a proper and formal judgment on June 3,1927, nearly one year after the entry of the memorial, as shown by the record. At that time orders for appeal were entered on behalf of appellant, and appellees now move to strike the purported transcript from the files and to dismiss the attempted and purported appeal on the ground that the original judgment in this cause in favor of the defendants, appellees, was entered on June 22, 1926, and that the clerk should have corrected only his record of said judgment.

There is nothing now before this court showing or tending to show that the court on June 22, 1926, pronounced a legal and final judgment in said cause, further than the record as shown on the former appeal. Appellees assume that a complete and final judgment was pronounced, but was not fully recorded, on June 22,1926. It is not a question of a judgment nunc pro tunc, or of a judgment pronounced but not recorded; but, the record failing to show a legal and final judgment prior to the former appeal, as contended by appellees, the circuit court of Pike county, without error, proceeded to pronounce a legal and final judgment which has been recorded and is now before us. The motion to strike and dismiss on the grounds stated is denied.

Appellant brought suit on two promissory judgment notes, each for the sum of $500, executed by appellees and payable to the order of the Standard Manufacturing Company of Decatur, Illinois, said notes having been assigned by the payee to appellant. Under the pleadings it was claimed, and there was testimony offered tending to prove, that the notes were a part of an agency contract under which appellees accepted an agency in certain territory to sell house-lighting plants for the said Standard Manufacturing Company under an agreement that the notes should be held by the Standard Manufacturing Company merely as a collateral security; that settlements should be made by • purchasers with purchasers’ notes turned over to said company, and that all unsold machines should be returned. It was agreed in writing that if the Standard Manufacturing Company did not sell a certain number of generators in the territory, on behalf of appellees, said notes should be returned and the appellees never would be called upon to pay them. The preponderance of the oral testimony establishes that said company agreed not to transfer or negotiate the said notes, and that upon the completion of the contract said notes should be returned to appellee. The notes did not evidence an indebtedness against appellees and there was more or less testimony introduced tending to establish that the business and methods of the Standard Manufacturing Company constituted a fraud, and that appellant had notice of these facts before he purchased the notes, for which he testified that he gave his check for $700. However, he was not able to produce the check.

There was a verdict and judgment for appellees and appellant has appealed. There are assignments of error in the record on the admission of oral evidence as to the negotiations between the Standard Manufacturing Company and appellees which were not in the presence of appellant, but by this testimony it was sufficiently shown that the title of the Standard Manufacturing Company to said notes was defective, whereupon the burden of proof shifted to appellant to show that he was a holder in due course of said notes. (Paragraph 59, Negotiable Instruments Act, Cahill’s St. ch. 98, H 79.) This issue of fact was submitted to the jury and a finding made in favor of appellees and from a reading of the record we do not find that the verdict is against the manifest weight of the evidence.

Some complaint is made as to certain instructions given on behalf of appellees that they did not cover a phase of the controversy pressed by appellant under an additional clause to the contract, signed by appellees under date of September 12, 1922, with said company, in which clause there was a statement that a portion of appellees’ notes had been sold. But it was shown that appellees never operated under this additional clause to the contract, and it was about this time that appellees claim to have discovered that the business of the Standard Manufacturing Company was a fraudulent scheme and we find no error in the .'instructions.

It is contended by appellees that appellant is es-topped to raise the questions assigned as error upon this record, for the reason that the record does not show that the bill of exceptions contains all of the evidence in the case. The certificate of the court reporter does show “and the foregoing was all of the evidence heard on the trial of the above case,” but the bill of exceptions does not show that appellant closed his case either in chief or in rebuttal, and the judge does not certify that the bill of exceptions contains all of the evidence upon the trial of the cause. It was held in People v. Nelson, 320 Ill. 273, 278:

“Where the bill of exceptions does not purport to contain all the evidence the verdict of the jury will not be questioned. (Ballance v. Leonard, 37 Ill. 43; Board of Trustees v. Misenheimer, 89 id. 151; Village of Des Plaines v. Winkelman, 270 id. 149.) The certificate of the court reporter that the bill of exceptions contains all the evidence is not sufficient for that purpose, (Cogshall v. Beesley, 76 Ill. 445; People v. Clark, 298 id. 170;) but it is sufficient if the fact affirmatively appears from the record itself that the bill of exceptions contains all the evidence. (People v. Henckler, 137 Ill. 580; People v. Scanlan, 265 id. 609; Central Illinois Public Service Co. v. City of Sullivan, 294 id. 101.) Immediately following the testimony in the bill of exceptions in the instant case are the statements, ‘Defendant rests’ and ‘People rest.’ The court reporter then certifies that the bill of exceptions contains all the evidence heard by the court and jury, and the certificate of the trial judge concludes the bill of exceptions. These statements and certificates sufficiently show that the bill of exceptions contains all the evidence upon which the parties relied.”

In view of the holding in Cogshall v. Beesley, 76 Ill. 445, and People v. Clark, 298 Ill. 170, 174, we are of the opinion that none of the questions argued by appellant in this case are before this court for review. Accordingly, the judgment of the circuit court of Pike county is affirmed.

Affirmed.


text:
    Kathryn B. Blackmore, Appellant, v. H. H. Randolph, Appellee.
    Gen. No. 8,175.
    Opinion filed January 25, 1928.
    Fred I. Edgell and Donald McCormick, for appellant.

      Herrick & Herrick and Harold F. Trapp, for appellee.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

On May, 11, 1915, appellant purchased from appellee 108 shares of stock in the American Brick Company, a corporation which appellee was promoting. The sale was induced largely by the close relationship existing between appellant and the wife of appellee and her family. In fact, appellee acted in the sale in a fiduciary relationship towards appellant. The purchase price of the stock was $5,400, which was paid by appellant out of her own funds to appellee. Certificates of shares of stock were issued and the shares placed in the name of appellant, except eight shares of which two were placed in the names of each of appellant’s four minor children. All of the certificates, however, were the property of appellant and remained in her possession and under her control. Appellant, at the time of the purchase, had the intention at some time in the future of presenting said certificates to said minors respectively, but this was never done.

After appellant purchased said shares of stock she learned that they were worthless and had no value whatever, and after learning said facts appellant demanded that said appellee take back said certificates and refund to her the said sum of $5,400. It appears that pursuant to said demand appellee, on December 19, 1917, made appellant a written offer to repurchase said certificates, which was in the following terms:

“St. Louis, Mo., December 19th, 1917. “Mrs. Kathryn B. Blackmore,
St. Louis, Missouri.
“My dear Mrs. Blackmore:
“I hereby offer and agree to repurchase the stock of the American Brick Company which you bought from-me in 1915 at and for the price paid by you, to wit, $5,400.00, together with interest thereon at six per centum per annum, and to pay for the same in cash, or notes, on or before the close of the month of January, 1918. If I can dispose of the notes given me by the Malinite Company, dated September 18, 1917, and aggregating $14,500.00, I will pay cash. If I am not successful in disposing of said notes for cash on or before the close of January, 1918, then I agree to endorse to you enough of said notes to equal the purchase price of said stock above mentioned, paying the difference, if any, in cash. If in the meantime the company desires the certificates of stock surrendered and changed to common stock of the Malinite Company, you are authorized to do so.
“Please note hereon your acceptance of this proposition and oblige,
Tours truly,
(sd.) H. H. Randolph.”

On the 24th day of December, 1917, appellant accepted the offer, signed the writing and duplicates were exchanged between them. On January 29, 1918, appellee wrote appellant’s attorney repudiating the agreement on the ground as stated in appellee’s letter, that appellant had made charges of fraud against him and that his honor was at stake, and that his only means of defending his honor was to defend himself in a lawsuit brought by appellant to recover the said sum of money.

So far as the proofs go in this case, in 1916 the American Brick Company was still trying to float a block of its stock and was not at that time a going concern. It was shown that the Malinite Company was a holding concern, organized during the war, but that before the organization was completed the war was over and the corporation never had anything to do. The notes in the Malinite Company to the amount of $14,500 are still in the possession of appellee, no interest ever having been paid upon them, and they are now and always have been worthless. Appellee testified that he had never offered to turn over to appellant any part of the Malinite notes, with or without recourse, and had never paid to appellant any part of the fifty-four hundred dollars or interest. Appellant tendered back the certificates of stock and brought this suit. A jury was waived and the cause tried before the court. There was a finding and judgment for appellee and appellant appeals.

It was contended on the part of appellee that part of the stock in question issued and delivered to appellant was in the name of her minor children, and that there was no privity of contract between appellee and said minors, and, therefore, appellant had no right to dispose of the stock. The certificates of stock were the property of appellant and had never been delivered to the minors. The form of the certificates was mere evidence of title and that title could be contradicted by parol evidence. (14 C. J., 837; Dows v. Naper, 91 Ill. 44, 46; Corwith v. Culver, 69 Ill. 502; Crowther v. Bell, 190 Ill. App. 48.)

Appellee further contends in affirmance of the judgment that the minds of the parties never met in the formation of the contract under date of December 19, 1917, inasmuch as counsel for appellant, on December 24,1917, in returning the contract to appellee, with appellant’s approval and signature, wrote appellant and ref erring to the Malinite notes stated: “This endorsement, of course to be regular endorsement.” It is claimed that appellee never accepted this additional construction of the contract, but had reserved the right to indorse the notes “without recourse.” There was nothing ambiguous or uncertain about the terms of the contract, and in answer to this contention it is sufficient to point out that on January 19, 1918, appellant repudiated the contract on an entirely different ground. Appellant tendered back the certificates of stock to appellee. It was shown that under the laws of the State of Missouri, where appellant and her minor children resided, that appellant was the natural guardian of the persons and estates of her minor children, except that portion of any such estate as should be derived from some person other than the parent. Not even a bond was required of such natural guardian. In addition, before the bringing of this suit, all of said stock was assigned to appellee by three of said children in their own proper person, they having become of age, and the stock of the one remaining minor was assigned by appellant, as guardian, under a decree of court. While we do not consider that said minors in any manner had any interest in said certificates of stock, and hold that appellant had a perfect right to sell and dispose of the same, still, under the laws of Missouri as cited and under the common law, appellant had a legal right to enter into the contract recited, even if said minors owned an equitable interest in said shares of stock. The law of Missouri would govern in that respect. (Schmidt v. Shaver, 196 Ill. 108, 115.)

The law is that where one party abandons a contract and refuses further performance, the other party is entitled to rescind. He is not, however, bound to rescind, but may keep the contract alive and sue upon it for a breach, or he may adopt a third course and treat the contract as at an end for the purpose of further performance, but as still alive for the purpose of adjusting the rights of the parties to the breach. (13 C. J., 615; McKenna v. McKenna, 118 Ill. App. 240; Stoneking v. Long, 142 Ill. App. 203, 209.)

Under the terms of the contract in question appellee agreed to repurchase the stock in question and repay appellant the sum of $5,400, with interest on said sum at the rate of 6 per cent per annum from May 10, 1915. Appellee has not kept the agreement and from a careful examination of this record we are unable to find any legal excuse in Ms behalf.

No propositions of law were submitted to or passed upon by the court below, and the rule cited by appellee in Simon v. Reilly, 321 Ill. 431, 435, as to the remanding of the cause does not apply. The rule is that where a case is tried before the court without a jury, the Appellate Court may enter such, a judgment as the trial court should have entered. (Manistee Lumber Co. v. Union Nat. Bank, 143 Ill. 490; O’Farrell v. Vickerage, 184 Ill. App. 303; People ex rel. Howard v. Harris, 164 Ill. App. 136.)

Accordingly, the judgment of the circuit court of Logan county is reversed and the clerk of this court is directed to enter a judgment in this court that the appellant have and recover the sum of $5,400, with interest on said sum at the rate of 6 per cent annum from May 10, 1915, from the appellee, with the costs of suit, and this court enters a finding of fact.

Reversed with a finding of fact.

Finding of fact to be incorporated in the judgment: We find as a fact that the appellee is indebted to the appellant in the sum of $5,400, with interest on said sum at the rate of 6 per cent per annum from May 10, 1915, amounting to the sum of four thousand ninety-four and 82/100 ($4,094.82.) dollars, in interest and a total sum of nine thousand four hundred and ninety-four and 82/100 ($9,494.82) dollars indebtedness, under and by virtue of the written agreement dated December 19, 1917, as set out in said opinion.


text:
    Maude Rice et al., Appellants, v. E. W. Barkman, Appellee.
    Gen. No. 8,189.
    Opinion filed January 25, 1928.
    Hutson & Traeger and Wiley & Morey, for appellants.
    T. F. Drew and Lee & Lee, for appellee.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

Appellants brought their suit against appellee in the circuit court of Macon county upon a judgment recovered by appellants against appellee in a suit in the district court of Tama county, Iowa, on December 7, 1920, for the sum of $1,572.98 damages and the sum of $62.27 costs of suit, with interest on said judgment at the rate of 6 per cent per annum from the date thereof until paid. The district court of Tama county, in the State of Iowa, was a court of record and of general jurisdiction. Appellee filed various pleas and there were replications filed and demurrers to pleas and replications. It is only necessary to consider appellee’s first additional plea which set out a “Release of Judgment,” which is in the following form:

“In consideration of the sum of one dollar and other valuable- considerations in hand paid to me by E. W. Barkman in the case of Maude Rice, Rena Bark-man and Howard W. Hill, plaintiffs, against E. W. Barkman, defendant, in the District Court of Tama County, Iowa, at the December Term, A. D. 1920, being Law Case No. 12,407 in said court, I hereby acknowledge full and complete settlement and satisfaction of all my right, title and interest in and to the judgment in said case as appears in combination appearance and judgment Docket No. 23 on page 249 of the records in the Clerk’s Office of Tama County, Iowa, and I hereby release and cancel said judgment and interest of record as one of the plaintiffs in said action.
(Signed) Mrs. Rena Barkman.
“Be it remembered, that on this 2nd day of November, A. D. 1925, before me, a notary public, personally appeared Rena Barkman, to me known to be the person named in and who executed the foregoing release of judgment, and acknowledged that she executed the same as her voluntary act and deed.
(Signed) Katherine Halverson,
(Seal)
Notary Public in and for Tama County, Iowa.
“Filed November 2, 1925. Herbert P. G-iger, Clerk, by S. A. Freet, Deputy Clerk.”

It was shown by the proofs that appellants were the only heirs at law of one P. B. Hill, deceased, who died at Tama, Iowa, about eight years prior to the trial of this cause. Appellant Eena Barkman was at one time the wife of appellee, but they were divorced in 1898. The suit in Iowa and this suit have been brought in the name of appellants as the sole heirs of said P. B. Hill, deceased, claiming to recover upon promissory notes which were the property of said Hill in his lifetime and a part of his estate after his decease. It is claimed by appellee and the said Eena Barkman that she is an involuntary party to these suits and has never consented to the same. In fact, she testified over the objection of the appellants that her father gave her the notes upon which judgment was recovered before his death. Her testimony in this connection was incompetent (Cahill’s St. ch. 51, ¶ 2), and the court very properly held as a matter of law in this case:

“The Court holds that as a matter of law that the parties to the judgment rendered in Iowa are es-topped and concluded as to the matters set forth in the complaint, upon which said judgment was rendered, and that this Court will not retry nor relitigate any matters of fact set forth in said complaint.” Upon this holding of law neither party to this record has assigned error.

Appellant Eena Barkman further testified that appellee paid her only the sum of $1 for the execution of the release, and her whole testimony covers the subject as to her individual ownership of the claim. Appellee testified that after he was sued at Tama, Iowa, upon the claim, he went to Tama and talked with appellant Eena Barkman about the matter, and testified that she did not know anything about the judgment until he informed her of it. Appellee further testified positively that he paid Eena Barkman nothing of value for the judgment, except the said sum of $1, and that he did not see or have any negotiations with appellant Maude Eice upon the matter or the other appellant.

The cause was submitted to the court without a jury, aud the court held the release a valid release and that it discharged the judgment procured in Iowa against appellee, and there was judgment against appellants in this cause for costs. The record is before this court by appeal for review.

The only question in the case is whether the release given by one joint judgment creditor releases and cancels the judgment. In the absence of proof to the contrary, it will be presumed by the courts of this State that the common law prevails in another State. (Forsythe v. Barnes, 228 Ill. 326; Woodbury v. United States Casualty Co., 284 Ill. 227.) It has been held in this State in Lumberman’s Ins. Co. v. Preble, 50 Ill. 332,335:

“The doctrine is equally well settled, that one of several obligees may execute a valid release, by which the entire obligation will be discharged.” But the court also held in the same case: “But to do so, it must be intended, and must be free from all fraud upon the rights of obligees not joining in the execution of. che release. In the case of Parmelee v. Lawrence, 44 Ill. 405, it was held, that where one of several payees of a note paid what he and the creditor estimated as his proportion of the debt, and a release was given, exonerating him from further liability on the note, it did not discharge the other makers; that as the payee did not intend to discharge the entire debt, it would be wrong to enforce the release, contrary to its terms and his intention. While that case differs from this, and in so far as the release was given to one of the payors by the payee, in this it was given by one of the obligees to the obligor, still it announces a rule that must govern this case.”

And the court further held: “Taking all the evidence in the case, we are clearly of the opinion that it was not the intention of Steller and McNaught to release the claim of Preble, and it seems to have been the intention of the agent that they should not, unless he was planning a fraud, and seeking to obtain an unjust advantage.”

The same question was before the Appellate Court of the fourth district in Clark & Bosquit v. Laumann, 52 Ill. App. 637, 639, and Mr. Justice Schofield cited the law: “In 1 Lindley on Partnership, 2d American Edition, marginal page 135, it is said: ‘As one partner can accept payment of a debt due to the firm, so he can effectually release and give a valid receipt for such debt. It is, however, to be remembered, that although one partner has implied authority to get in debts owing to the firm, still a receipt is not conclusive evidence of payment; so that if one partner gives a receipt in fraud of his co-partners it will not preclude the firm from recovering the money. Nor will a release given by one partner bind the firm, if the releasing partner acts in fraud of his co-partners and in collusion with the debtor.’

“In the same work, marginal pages 145 and 146, it is said: ‘If it can be shown that one partner has, in fraud of his co-partners and in collusion with the defendant, executed a release for the purpose of preventing them from enforcing a just demand, the defendant will not be allowed to plead this release as a defense to an action against him.’ ”

The case of Lumberman’s Ins. Co. v. Preble, supra, has been cited and followed in Miller v. Stanley, 186 Ill. App. 340, 343, and in Wallace v. Armstrong, 236 Ill. App. 457, 460, and it is the law of this State. When the appellant, Rena Barkman, for the consideration of $1 undertook to release the judgment which she did not know she had until appellee went to her, she and appellee both knew they were committing a fraud upon the rights of the other two appellants, if it was their purpose to release the entire judgment. Laws are made for the protection of property and the rights of litigants and are not made to afford a device and snare by which one can be stripped of his own. The ■facts in this case warrant the conclusion that if it is the construction of the wording of the release that it was the intention of the parties to it to release the entire judgment, then the words in the release, “and other valuable consideration in hand paid to me,” represent some kind of a benefit or advantage accruing to Rena Barkman, which both parties to the release have fraudulently concealed and carefully avoided, which would constitute a fraud on the part of both and void the release. But the plain reading of the release as this court views it is that appellant Rena Barkman only intended to release whatever right, title or interest she had in the judgment, and, if appellee intended it should cover anything further, it is plain that appellee intended a fraud. The judgment set out in the declaration in this case is entitled to full faith and credit in this State and is not subject to collateral attack (Hanna v. Read, 102 Ill. 596); neither is said judgment cancelled or released by the instrument offered in evidence. The court refused to hold for appellants the following:

“The Court holds as a matter of law that the instrument by the defendant obtained from Mrs. Rena Barkman, and acknowledged on November 2, 1925, is not a release or satisfaction of the judgment declared upon, except as to the amount of $1 paid therefor.”

This was error. The holding stated the law applicable to the case. Being an error of law, the judgment of the circuit court of Macon county is reversed and the cause remanded, with directions to that court to hold the law as submitted by appellants, and to enter a judgment in favor of appellants and against appellees for the amount of said judgment, interest and costs, as shown by the record, less the said payment made.

Beversed and remanded ivith directions.