text:
    Harry Rosenthal and Samuel Becker Co., trading as Rosenthal & Becker, Appellees, v. Louis Wald, trading as Louis Wald & Company, Appellant.
    Gen. No. 33,120.
    Opinion filed April 17, 1929.
    Lambert K. Hayes, for appellant.
    No appearance for appellees.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an action for rent which terminated in a judgment by default against defendant for the lack of an appearance on his part, rendered on the verdict of a jury in the sum of $375.65.

The cause was originally upon the short cause calendar and on March 4, 1927, owing to the plaintiff not being present in court in person or by counsel, when the cause was called for trial, it was ordered that the “cause be stricken from short cause calendar and placed on regular place on jury calendar. ’ ’ On May 29, 1928, there was a trial ex parte before the court and jury with a resulting verdict against defendant for $375.65, with a judgment thereon. On July 16, 1928, the defendants filed a motion to vacate the judgment of May 29,1928, and to set aside the verdict, and with such motion there was also filed a petition in which it is alleged that on the 18th day of June, 1926, defendant caused his appearance and a jury demand to be filed, and on the 2nd day of July, 1926, an order was entered placing the cause “on the next jury calendar”; that on October 11,1926, an order was entered on motion of plaintiff, ordering the cause placed on the short .cause calendar and setting the same for trial on November 22, 1926, at 9:30 a. m., and that said cause came on for trial on the last-mentioned date on the short cause calendar, and that the same was thereafter continued from time to time until the 4th day of March, 1927; that on said last-mentioned date defendant and his witnesses were present and answered “ready for trial”; that the plaintiff in said cause being absent, it was then ordered that the cause be stricken from the short cause calendar, and placed on the jury calendar, the half sheet showing the order as follows: “Cause stricken from short cause cal. and pi. on reg. pi. J. Cal.” which being extended means that the cause was stricken from the short cause calendar and placed on regular place jury calendar; that between October 11, 1926, and March 4, 1927, the regular jury calendar of the municipal court was printed and distributed and the cause then being on the short cause calendar was not printed on the jury calendar or given a number or place thereon, as shown by the regular printed jury calendar of said court dated February 19, 1927; that said jury calendar, which provided no place for the above entitled cause, was called and extended from week to week, and that the call of the jury calendar was not completed and the end of such call not reached; that the cause was never on the jury calendar and never given a calendar number thereon, and therefore had no place thereon; that at the time of the order, the jury calendar then in circulation, being that of February, 1927, was the guide of attorneys who had pending litigation thereon who were obliged to watch the same from day to day; that the cause having been on March 4, 1927, ordered stricken from the calendar, it was then ordered on the jury calendar, and that the attorney for defendant believing that the same would appear in its regular place on the next jury calendar thereafter to be published, with all other cases ordered placed thereon, so that in consequence thereof informed his client that the matter would appear on the next jury calendar and accordingly he was awaiting the completion of the call of the then jury calendar and the issue of the next jury calendar, which would show, as he believed, the calendar position and number of this cause; that on the 8th day of May, 1928, the cause was called before Judge Robert E. G-entzel, and was set for trial for May 29,1928; that neither defendant nor his attorney received any notice from plaintiff or his attorney, or in any other manner, that the cause had been placed on Judge Gentzel’s call on May 8,1928, and that no notice was had by defendant or his attorney that the trial had been set for May 29, 1928, and that in the absence of defendant there was an ex parte trial before the court and jury, and the judgment aforesaid was rendered, and that defendant did not discover that said judgment had been entered until the 9th day of July, 1928, and the petitioner prayed that because of the error in the facts alleged in said petition, which do not appear on the face of the record, that the court enter an order vacating and setting aside the judgment last aforesaid, and setting the cause for trial on its merits at a short date. Plaintiffs did not answer the petition, neither were any of its averments of fact denied by plaintiff on the hearing. *

On July 31,1928, the motion to vacate the judgment was overruled and this appeal from such order prayed and perfected.

The abstract of the record shows that “the court holds on the face of this petition that there has been no showing made of any error of fact that would justify me as a matter of law in vacating the judgment entered May 29, 1928.”

Plaintiff has not followed this appeal.

There is no evidence in this record as to how the cause was put upon any other calendar, if it was so put, after it was stricken from the short cause calendar. It is surmised without warrant, and is the only explanation afforded regarding the matter, that the clerk placed the cause on the February, 1927, civil jury trial calendar of the court. It is admitted that no notice of the calling of the case for trial or the placing of the same on any other calendar than that of the short cause calendar was given to plaintiff or its attorney, and if it was so placed without such notice by the clerk, then, there being no order of court authorizing him so to do, the so doing was a misprision of the clerk. The order of March 4, 1927, is “cause stricken from short cause calendar and placed on regular place on jury calendar.” Since the entry of that order and up 'to the time of the ex parte trial and the resulting judgment, there had been no trial calendar of the municipal court made up subsequent to that of February, 1927. Certainly it cannot be said, with any reasonable construction of the order, that it directed that the cause should be placed upon the February jury calendar. If the order had read on the regular place on the present jury calendar, there might be some reason for the argument that it was properly placed upon the February jury calendar. In striking the case from the short cause calendar the court had power to make such direction as it might see fit. We find no rule of the municipal court regulating the disposition of short cause calendar cases when they are stricken from that calendar. In the light of these facts, we must construe the order as a direction to the clerk to place the cause on the next jury calendar, succeeding the February, 1927, jury calendar. In ordinary procedure such would have been the course the cause would have taken.

By paragraph 407 of chapter 37, Cahill’s St. 1927, it is provided: “That until otherwise determined in the manner hereinafter provided, and except as by this Act is otherwise prescribed, the practice in the municipal court shall be the same, as near as may be, as that which may from time to time be prescribed by law for similar suits or proceedings in circuit courts. . . .” And by the following paragraph 408, it is provided: “That the judges of said municipal court shall have power to adopt, in addition to or in lieu of the provisions herein contained prescribing the practice in said municipal court or of any portion or portions of said provisions, such rules regulating the practice, in said court as they may deem necessary or expedient for the proper administration of justice therein; Provided, however, that no such rule or rules so adopted shall be inconsistent with those expressly provided for by this Act. . . .”

Paragraph 29 of chapter 110, Cahill’s St. provides: “If the trial of any suit which is upon the ‘Short Cause Calendar’ shall occupy more than one hour’s time, then the court may in its discretion, stop the trial, take the case from the jury, and continue it, and the suit shall, unless otherwise ordered by the court, go to the foot of the docket and shall not again be placed upon the ‘Short Cause Calendar.’ . . .”

And Paragraph 31 provides that: “If a suit which is upon the regular calendar shall be placed upon the ‘Short Cause Calendar,’ it shall be stricken off the regular trial calendar and shall not again be placed thereon, except upon notice to all the other parties to the suit, his, or their agent or attorney.”

It therefore follows that, by interpretation, in the orderly course of procedure, that the order was tantamount to a direction to the clerk to put the cause at the “foot of the docket.” The record shows the cause on the short cause calendar, when the same was tried, resulting in the order appealed from. Such proceedings were not before the same judge, but two different judges of the same court. Plaintiff, having no notice that the cause would be called for trial, was not barred from mailing a motion to vacate the judgment under paragraph 89 of chapter 110, Cahill’s St. The motion could have been made at any time within five years.

In Loew v. Krauspe, 320 Ill. 244, it was said:

“Error coram nobis was abolished by section 89 of the Practice Act, which provides that all errors of fact committed in the proceedings of courts of record which could have been corrected by error coram nobis may he corrected upon motion in writing within five years after rendition of the judgment, upon reasonable notice. The motion is not addressed to the equitable powers of the court, and it is not intended to relieve the party from the consequences of his own negligence. (Consolidated Coal Co. v. Oeltjen, 189 Ill. 85; Cramer v. Commercial Men’s Ass’n, 260 id. 516.) The object and purpose of the motion under section 89 have been frequently discussed in decisions of this court, and it has always been held that errors of fact which could he made the basis of the motion are facts which, if known to the court, would have prevented the entry of the judgment, and not the lack of knowledge on the part of the court of facts constituting a cause of action or a defense to it. Marabia v. Thompson Hospital, 309 Ill. 147; Village of Downers Grove v. Glos, 316 id. 563.”

The fact which was unknown to the trial judge was a misprision of the. clerk in not, under the order, striking the cause from the short cause calendar, putting said cause at the foot of the docket.

In Chapman v. North American Life Ins. Co., 292 Ill. 179, it was held inter alia that error in the process or through the default of the clerk, which is not sufficient to preclude the judgment, hut which was unknown to the court at the time the judgment was rendered and does not appear on the face of the record is sufficient to reverse or recall the judgment under a writ of error coram nobis. The error of the clerk in not having placed the cause at the foot of the docket was an error of fact unknown to the trial judge at the time of the trial when the judgment was entered. Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516.

In Brady v. Washington Ins. Co., 82 Ill. App. 380, it was said:

“A default of the clerk is one of the recognized grounds for a writ of error coram nobis. Pickett’s Heirs v. Legerwood, 7 Pet. 144; Watson v. Chadsey, Ill. App., Oct. T. 1898, Gen. No. 7,927, unreported.
“In Tidd’s Practice, Section 1137, the author says: ‘So, upon a judgment in the King’s Bench, if there be error in the process or through the default of the clerk, it may be reversed in the same court by writ of error coram nobis.’ ”

In Holbrook v. Lawton, 207 Ill. App. 497, the court said:

“The tendency of the law in this State is to allow the motion under section 89 whenever it is obvious that the action of the court is based upon the fault (either of omission or of commission) of the clerk of the court. ’ ’

For the foregoing reasons the order of the municipal court of July 31, 1928, denying defendant’s motion to vacate and set aside the judgment of May 29, 1928, is reversed, and the cause is remanded with directions to grant defendant’s motion of July 16, 1928, to vacate said judgment, and that defendant be permitted to defend on the merits of the action.

Reversed and remanded with directions,

Wilson and Byner, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Ryner

license: Public Domain

text:
    Henry L. Schiele, Defendant in Error, v. George Anderson et al., Plaintiffs in Error.
    Gen. No. 32,934.

      Opinion filed April 17, 1929.
    Clark & Clark and Edward M. Keating, for plaintiff in error Rubin.
    Brown, Fox and Blumberg, for defendant in error; Charles LeRoy Brown, Jacob Logan Fox, and Nathan S. Blumberg, of counsel.
   Mr. Justice Ryner

delivered the opinion of the court.

This writ of error was sued out. by a purchaser, pendente lite, of real estate in process of foreclosure. The plaintiff in error, Rubin, contends that the bonds foreclosed were violative of the statute against usury and that the complainant in the foreclosure suit failed to establish his ownership of the securities.

In the latter part of the year 1922, John. J. Loughlin and his brother were the owners of real estate located at Seventy-third street and Bennett avenue in the City of Chicago. For the purpose of financing the construction of a building upon the premises they applied to Wollenberger & Company to sell an issue of bonds of the aggregate par value of $150,000. The entire issue was sold.

In November, 1923, Edward E. Loughlin, who held the legal title to the property, sold it to Albert D. Shockley for a consideration of $203,000, subject to the lien of the trust deed securing the $150,000 of bonds. After a full investigation of the facts Shockley was given credit on the purchase price for the par value of the bonds. He gave to Loughlin a purchase money mortgage in which he agreed to pay the bonds. Later Shockley conveyed an undivided one-half interest in the premises to Goldman,

On April 30, 1925, a partial foreclosure suit was instituted in the circuit court of Cook county. Shockley , and Goldman were made parties defendant and were defaulted. The Loughlins answered but made no claim of usury.

After the cause had been pending for some time, a supplemental bill of complaint was filed charging default as to additional bonds and coupons. Shockley and Goldman were again defaulted. The Loughlins answered as before. Proof was made before a master in chancery of the bonds and coupons in default. Proof was also offered by the holders of $38,000 of second mortgage notes, by the holders of $15,400 of notes1 secured by third and fourth mortgages and by mechanic’s lien claimants to the extent of $1,448.50.

When the hearing before the master had been almost concluded Eubin appeared upon the scene. He filed of record a quitclaim deed from Shockley and Goldman to himself. The deed recited a consideration of two dollars and other valuable considerations, and Eubin was brought in as a party defendant by amendment to the bill of complaint. He answered charging usury and denying the complainant’s ownership of the bonds in question. A supplement and amendment to the bill were then filed setting up facts showing that Eubin’s predecessors in title had waived the defense of usury. Eubin and his wife answered, making the same defenses. A re-reference was had. The master found in favor of the complainant. His report was approved by the court and a decree entered in accord with his recommendations.

Upon the hearing the complainant, Schiele, produced the bonds and coupons and testified that he was the owner of them. There was no evidence produced to overcome the prima facie case thus made.

Counsel for Eubin make much ado about the fact that the complainant, on cross-examination, testified that the bonds under foreclosure were first sold by Wollenberger & Company and then bought in by them; that the complainant was the auditor of that company and in that capacity made the entries in the books which effected the transfer of the securities to himself. They further contend that the complainant paid no money for the bonds but was merely charged with their value on the books of Wollenberger & Company. It is further argued that no proof was offered to show the complainant’s authority to transfer the bonds to himself. These contentions are without merit. The facts disclosed may be sufficient to arouse a suspicion that Wollenberger & Company owned the bonds and coupons but they fall far short of sustaining the defense that the complainant was without sufficient interest to maintain his action.

The trust deed, securing the bonds, contains a provision that,

“Beginning on the first day of April, 1923, on the first day of each month thereafter during the lifetime of the said indebtedness, the Mortgagor will, and he does hereby, covenant and agree to deposit with Wollenberger & Co., a corporation, at Chicago, Illinois, a sum of money equal to one-twelfth (1/12) of the total amount interest charges and installments of principal falling due during each successive year thereafter during the lifetime of said indebtedness.”

It is argued by counsel for Rubin that this provision tainted the transaction with usury. The contention is untenable. The provision is not an unusual one. It does not result in any increase of interest to the holders of bonds. It simply provides for additional security to them. Its effect is to obligate the mortgagor to conserve a sufficient amount of the monthly rents, issues and profits to enable him to pay the bonds and coupons as they mature. It is deemed unnecessary to cite authorities to show that the arrangement in question does not result in the payment to the bondholders of interest at an unlawful rate or in the acceleration of payments of either principal or interest.

Even if it be assumed that the original transaction required the payment of interest in excess of the maximum legal rate, Rubin is in no position to complain. The defense of usury is a right personal to the debtor and he may waive it. Hibernian Banking Ass’n v. Davis, 295 Ill. 537. In the early history of judicial construction of our statute against usury the courts invented the fiction that, in the absence of any agreement to the contrary, there was implied authority from the mortgagor of property to his grantee to make the defense. This fiction has become a part of the substantive law of the state. Crawford v. Nimmons, 180 Ill. 143. The defense, however, may be waived. It is waived where the mortgagor, selling property securing a usurious loan, deducts the amount of the obligation from the purchase price and takes an agreement from the grantee to assume and pay the indebtedness. This constitutes an affirmance of the debt by the mortgagor and overcomes the implication that the defense of usury has passed to the grantee. Crawford v. Nimmons, supra.

In the case at bar Shockley bought the property, securing the bonds in question, from the mortgagor. Upon the consummation of the sale he was credited with the deposits made with Wollenberger & Company under the provisions of the trust deed and permitted to deduct from the purchase price the sum of $144,375, the amount remaining to be deposited to pay the bonds and coupons as they matured. He executed a purchase money mortgage wherein he agreed to pay all of the bonds executed by the mortgagor. The defense of usury was thereby waived. Rubin was bound by the waiver because he was a grantee pendente lite claiming under Shockley. In addition to this, neither the mortgagor nor Rubin’s grantors interposed the defense of usury in the foreclosure proceedings.

The decree of the circuit court of Cook county is affirmed. . i, •

Affirmed.

Holdom, P. J., and Wilson, J., concur.


text:
    Miles & Miles, Inc., Appellee, v. Hugo Meyer, Appellant.
    Gen. No. 33,056.

      Opinion filed April 17, 1929.
    Rehearing denied May 1, 1929.
    Rufus M. Potts and C. W. Armstrong, for appellant.
    Good, Childs, Bobb & Wescott, for appellee; Walter E. Beebe and F. M. Hartman, of counsel.
   Mr. Justice Ryner

delivered the opinion of the court.

On June 11, 1927, the defendant executed and delivered to the plaintiff his promissory note as follows:

“1986.39 Chgo, June 11, 1927
Ninety days after date I promise to pay to the order of Miles & Miles, Inc., the sum of $1986. and 39 Cts. Dollars Payable at 2400' S. Mich. Ave. Value received with interest at......per cent per annum.
Hugo Meyer”

After maturity of the note, the plaintiff instituted suit in the municipal court of Chicago where the case was tried before the court, without a jury, resulting in a judgment in favor of the plaintiff for the full amount of the principal, together with the interest due.

The defendant in his affidavit of merits set up three inconsistent defenses, i. e'., want of consideration, and total, and partial failure of consideration. In support of these defenses he was permitted to introduce’in evidence a written contract between the parties, dated June 4,1927. The writing was under seal and recited that the parties had been mutually interested in certain insurance transactions and were desirous of making a final accounting and settlement of their respective rights and liabilities.

The substantive provisions of the contract were as follows:

“First: Said first party agrees to pay to said second party, in cash herewith, the receipt of which is hereby acknowledged by said second party, the sum of Five Hundred Fifty Seven and 60/100 Dollars ($557.60); also, the sum of Six Hundred Eighty Two and 52/100 Dollars ($682.52); also, the sum of One Hundred Thirty Dollars ($130.00), and not later than Saturday, June 11, 1927, subject to the audit hereinafter mentioned in a later clause hereof, in cash such sum as may be shown by said audit to be due said second party from said first party from the records of said second party in relation to the so-called 'pool account’ maintained by said second party concerning its business in handling the insurance of the members of the Motorists Association of Illinois.
“Said first party further agrees to give to said second party, on Saturday, June 11, 1927, his promissory note, dated this date and due in 90 days, for such sum as may be found to be due said second party from said first party on an accounting to be made by said first party of the records of the original policyholders of the Inter-Insurance Exchange of the Illinois Automobile Club, showing their credits; if said audit is not completed, or found impracticable by said June 11, 1927, then said first party is to give his note to said second party of like tenor and effect, in the amount of One Thousand Nine Hundred Eighty Six and 69/100 Dollars ($1,986.69) on account of such credits of said policyholders, subject to the amount of said note being later checked by a completed audit. Said second party agrees to accept such cash and note as complete and final settlement of all and everything due said second party from said first party by reasons of the transactions hereinabove described. It is agreed by the parties, however, that in the event any recovery is had from the Receiver of the Integrity. Mutual Casualty Company on account of unearned premiums and the payment thereof to said second party on said second party’s claim heretofore filed therefor with said Receiver, then, and in such event, in addition to the one-half of such recovery which said second party has heretofore in writing assigned to said first party, said second party agrees to pay to said first party in cash, so much of such recovery on account of such unearned premiums as may amount to such sum as is to be ascertained by the audit of the records of the policyholders at the Inter-Insurance Exchange of the Illinois Automobile Club.
“Second:" Said second party agrees to return by Saturday, June 11, 1927, to the first party, each and all of the cards and records showing the expiration dates of the insurance of members of the Motorists Association of Illinois, secured and procured by said second party during said second party’s occupancy of a portion of the premises at 2400 South Michigan Avenue, Chicago, Illinois.
‘‘Third: Said second party agrees to file with the Receiver or Liquidator of the Inter-Insurance Exchange of the Illinois Automobile Club, a claim in the amount of Three Thousand Nine Hundred Seventy Three and 38/100 Dollars ($3973.38) for moneys due from the subscribers at said Exchange, and said second party further agrees to pay to said first party out of fifty per cent (50%) of any amount which may be recovered from such Receiver or Liquidator, less collection expenses or attorney fees, the sum of One Thousand Nine Hundred Eighty Six and 69/100 Dollars ($1986.69).
“Fourth: The parties hereto agree that with the execution of this agreement' all the amounts herein provided for to be paid, have been paid and received, and the rights and liabilities of the parties hereto by reason of the matters and things hereinbefore assigned, have been fully satisfied and complied with, and this agreement is to stand and be as a release between the parties hereto of all of their said rights and liabilities.
“Signed, sealed, executed and delivered by the parties hereto the day and date first above written.”

The sole contention of the defendant is that the plaintiff violated paragraph “Second” of the contract by failing to deliver to the defendant all of the cards and records which it agreed to return. The defendant testified that on June 11, 1927, when he executed and delivered the note in question, William A. Miles, representing the plaintiff, handed to him “a carton box, with some three-by-five cards in them all thrown together in a jumble pile in this box, not sorted as they had been originally in the files”; that he complained about their condition but received the assurance of Miles that the box contained all of the records which the plaintiff had agreed to return; and that an examination disclosed that a great many of the cards and records were missing. Miles testified that he returned all of the records of which he had any knowledge.

Assuming, however, that the facts were as contended by the defendant, he wholly failed to sustain any of the defenses interposed by him. In his affidavit of merits he stated that the note was given without a good and valuable consideration, and in the same affidavit said that the consideration was the “plaintiff’s promises and agreements contained in a written agreement dated June 4, 1927.” The most cursory examination of the contract discloses that he successfully challenged his own defense.

His defense of total failure of consideration likewise failed. The plaintiff agreed not only to return the records and cards but also to perform certain other acts of material benefit to the defendant. Ño evidence was offered to show that the plaintiff breached his contract in any respect other than his failure to return all of the records in question.

The defense of partial failure of consideration was not supported by the evidence. The burden of proving this plea was upon the defendant. McMicken v. Safford, 197 Ill. 540; Clement v. Bladworth, 166 Ill. App. 68. He introduced no evidence showing or tending to show the value, if any they had, of the missing records. His failure in this respect was fatal to the defense. Hall v. Marks, 56 Ill. 125; Farrar & Wheeler v. Toliver, 88 Ill. 408.

There are also authorities holding that the nonperformance of an agreement which constitutes the consideration for a note does not result in a failure of consideration unless the agreement is rescinded. Jones v. The Council Bluffs Branch of the State Bank of Iowa, 34 Ill. 313; Shepard v. Mills, 70 Ill. App. 72.

. A party to a contract should stand by it as a whole and seek its enforcement or repudiate it entirely.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

Holdom, P. J., and Wilson, J., concur.


text:
    Dan Longo, Plaintiff-Appellee, v. F. J. Lewis, Defendant-Appellant.
    Gen. No. 33,104.

      Opinion filed April 17, 1929.
    Nelson, Wilson & McFall, for appellant.
    Schnackenberg & Hansen, for appellee; Elmer J. Schnackenberg, of counsel.
   Mr. Justice Ryner

delivered the opinion of the court.

Under date of October 10, 1925, the plaintiff, Dan Longo, addressed a written proposal to McGrath & Swanson Construction Company at Chicago, Illinois, in which he,offered to do the necessary filling upon a tract of approximately two hundred acres of land, located in the southern portion of the City of Chicago and bounded on the east by the Illinois-Indiana state line, to bring the surface of the land up to six inches below the established grade. The work was to be done at a cost of fifty cents per cubic yard, payments to be made weekly as the work progressed on the basis of eighty-five per cent of the cost of the work completed. The remaining fifteen per cent was to be paid when all of the work had been done. The document was received in evidence and at the bottom of it and below the signature of the plaintiff appeared the words:

“Accepted:
“McGrath & Swanson Const. Co.
“ A., S. Billingsley. ’ ’

On May 9, 1927, the plaintiff brought his suit in the superior court of Cook county against the defendant, F. J. Lewis. The declaration consisted of the common counts. An affidavit of claim was attached in which the plaintiff stated that his demand was for “work and labor furnished to the defendant, F. J. Lewis, at his special instance and request” and that there was due to the plaintiff the sum of $17,771.04. The defendant filed a plea of the general issue and an affidavit of merits. The affidavit set out in haec verba the written proposal and concluded “that all of the work and labor and material done and performed by the said plaintiff in the said declaration mentioned was done and performed at the special instance and request of the said McGrath & Swanson Construction Company, a corporation, and not at the special instance and request of this defendant.” It was executed by Billingsley as agent for the defendant.

A jury trial was had, resulting in a verdict and judgment upon the verdict in favor of the plaintiff for the full amount claimed together with interest and costs. The defendant appealed.

Much of the brief filed by counsel for the defendant is devoted to the presentation of authorities which announce well recognized principles of law but having no application to the facts in the instant case. Plaintiff does not charge fraud nor does he ask that corporate entities be ignored. He takes the position that his judgment should stand or fall on the proposition as to whether he adduced sufficient evidence upon the trial to warrant a jury in finding that, in the transaction in question, the defendant was an undisclosed principal acting through the McGrath & Swanson Construction Company as his agent.

There is little conflict in the evidence. The principal witnesses were the defendant and his agents and employees. The defendant, according to the statement of his attorney, was a man of considerable means and reputed to be worth $13,000,000. He conducted his business through about fifteen corporations in which he owned all of the stock except a few shares used for the purpose of qualifying directors and officers. The .officers and directors of the various corporations were employees of the defendant or of some one or more of . the corporations organized by him. The principal corporations involved in this proceeding are the Mc-Grath, & Swanson Construction Company, the Forest Preserve Real Estate Improvement Corporation and the F. J, Lewis Manufacturing. Company.

The lands which the plaintiff improved were purchased with the moneys of the defendant and he was the equitable owner of them. As he acquired them parcel by. parcel he had the legal title, at first, placed in certain individuals and finally in the Forest Preserve Real Estate Improvement Corporation, where it remained at the time of the proceedings in the trial court. The president of this corporation was a brother of the defendant, and O’Connor, the secretary and treasurer, was an accountant employed by the F. J. Lewis Manufacturing Company. Ernest Swanson was one of the incorporators. He was also an officer of the company but testified that he knew nothing about the assets or who was president or who the directors were. He said this notwithstanding the fact that he also testified that he had custody of the minutes of the meetings of the company. He was assistant superintendent of the F. J. Lewis Manufacturing Company and secretary and treasurer of the McGrath & Swanson Construction Company. The other incorporators were Lux, the personal attorney of F. J. Lewis, and A. L. Schoeman, a stenographer in the office of the F. J. Lewis Manufacturing Company.

The defendant testified that he caused to be organized the Forest Preserve Real Estate Improvement Corporation and the other corporations because of the uncertainty of life; that he followed the advice of men of large affairs to the effect that it was better to operate through corporations than, at his death, to have his personal estate tied up and involving many people. Attorney Lux testified that he recommended the incorporation of the Forest Preserve Real Estate Improvement Corporation. He gave as his reasons for the suggestion that it was contemplated the company should own a large amount of unimproved land which would require a long time to improve and it was unwise, from an economical view, to tie up such an immense project with the life of one man. He further testified that the defendant’s health was very delicate at times.

Raymond E. McGrath testified that he was president of the McGrath & Swanson Construction Company. He was the traffic manager of the Liquid Dispatch Line, which had its place of business at the office of the F. J. Lewis Manufacturing Company. Attorney Lux asked him.to be an officer. He paid no money but received a certificate of stock which he indorsed in blank and turned over to Lux. He never saw the lands in question except once when he drove by them on a pleasure trip. He further stated that Billingsley was the general manager of the company but he did not know who appointed him and that he was not consulted in the matter. He was not connected with the outside work in the subdivision and had no consultations with Billingsley about the contract with the plaintiff. He did not know the terms of the contract and knew nothing about" the assets of the company.

Ernest Swanson testified that he was assistant superintendent of F. J. Lewis Manufacturing Company, superintending the repair of tank cars. He acted as secretary and treasurer of the McGrath & Swanson Construction Company at the request of Lux. He devoted all of his time to the affairs of F. J. Lewis Manufacturing Company, and never saw the lands in question. He did not know what salary Billingsley received. Otherwise his testimony was almost identical with that given by McGrath. Neither one paid the slightest attention to the company’s affairs, if any it had.

Lux testified that he had been the attorney for the defendant since 1920 and that he received a salary from F. J. Lewis Manufacturing Company. One thousand dollars was paid in on the capital stock of the McGrath & Swanson Construction Company. Lux held the certificates of stock for the benefit of the ultimate owners. He advised the defendant to have the Company organized so that the development of the lands in question would be in the hands of one organization with its own competent mechanics, engineers and architects. The object, he stated, was to relieve the defendant from the burden of advertising for and considering bids and attending to the letting of contracts to various contractors.

On the trial of the case the attorney for the defendant said the various corporations were not organized for the purpose of deceiving anybody but to relieve the defendant from responsibility “so that he wouldn’t be pestered on account of credit relations with the banks.” When the court asked him what tangible assets the McGrath & Swanson Construction Company had, he replied, ‘ They have responsibility back of them. ’ ’ He admitted that the defendant’s moneys paid for the lands.

Billingsley testified that in 1924 he had been employed by the F. J. Lewis Manufacturing Company. He was an engineer and for about three and one-half years was in charge of the work of improving the property. At first his salary was paid by checks of the F. J. Lewis Manufacturing Company, but later he started getting checks from McGrath & Swanson Construction Company. He and the plaintiff prepared the contract. He discussed the proposal of the plaintiff with the defendant and the latter advised him to enter into the contract. He further stated that if the defendant had advised against accepting the proposal the matter would probably have been held up. The defendant was frequently upon the premises, consulting with the witness about the improvements. No official of the McGrath & Swanson Construction Company was ever there. Three small buildings were erected for office facilities. The matter of constructing these buildings was discussed with the defendant but not with McGrath or Swanson. He observed officers of the Forest Preserve Company going over the property and inspecting the work done. The officers mentioned by him were the defendant and his brother. He looked to the defendant for instructions as to work to be done and made many estimates to him in connection with possible special sales. When asked about the assets of the company he said it had operating equipment; that he could not give the amount of tangible assets without reference to the books, but that he would say that it had physical assets of $10,000 to $15,000 in equipment alone.

The defendant testified that he was chairman of the board of directors of the F. J. Lewis Manufacturing Company and interested in a large number of other business enterprises. He reluctantly admitted that he furnished part of the money for the acquisition of the lands. ‘He thought that his attorney held the custody of the deeds. He thought the Forest Preserve Beal Estate Improvement Corporation was the grantee in the deeds but if not, it would be his brother. He could not tell who suggested placing Billingsley in charge of the improvements, yet he admitted that Billingsley showed him the proposal of the plaintiff and he approved it as being satisfactory as to form and price, and directed that it be accepted. He further said that in 1925 he was appointed an agent of the McGrath & Swanson Construction Company.

The financing of this company sheds a great amount of light upon the transaction here involved. Its authorized capital stock was $20,000. The amount of stock subscribed and paid for was ten shares of the par value of $100 each. The defendant admitted that since its incorporation in 1924 he had advanced money to the company to the extent of $200,000 or $300,000. Counsel for the plaintiff contends that the record discloses an advancement of several hundred thousand dollars in excess of this amount. There was paid to the plaintiff on account of his contract, as evidenced by forty checks introduced in evidence, the sum of $56,731.66. One of the checks was signed, “Frank J. Lewis Trust, W. H. Lewis,” three were signed “Frank J. Lewis Trust, by F. J. Lewis,” nine were signed “F. J. Lewis, by W. H. Lewis,” and twenty-seven were signed “F. J. Lewis by F. J. Lewis. ’ ’ The Frank J. Lewis Trust was one of the defendant’s numerous creations and W. H. Lewis was his brother. The defendant’s attorney, Lux, supervised the issuance of the checks and caused them to be charged to the account of the Mc-Gfrath & Swanson Construction Company. He said that the purpose of issuing the checks was to make a loan fo the company to enable it to pay its obligations. This would seem to indicate quite clearly that the company had no funds.

The defendant was a shrewd business man. His counsel admits that because he says in his brief, “Lewis and Billingsley had enough intelligence to have a contract executed in the form it was intended to be executed. ” If he was loaning hundreds of thousands of dollars to this company what security or what guaranty of a repayment of these large advancements did he have? The company had never declared a dividend and the only' assets it appeared to have were about $15,000 worth of equipment. This was evidently paid for with money of the defendant.

The plaintiff and his brother, Anthony Longo, testified that the defendant was frequently on the premises being improved, and expressed his approval of the work done.

The plaintiff also testified that the checks aggregating the sum of $56,731.66 received bj" him were in payment of 85 per cent of the work done and that there was due Mm under Ms contract a balance of $17,771.04. To tMs testimony no objection was interposed.

The plaintiff produced enough proof to make out a clear prima facie case, sufficient to require the defendant to make a showing that the Forest Preserve Real Estate Improvement Corporation and the McGrath & Swanson Construction Company were the real parties in interest in connection with the transaction here involved. Particularly was it incumbent upon the defendant to offer some explanation to account for the total lack of knowledge on the part of the officials of the McGrath & Swanson Construction Company of the making of the contract with the plaintiff or of the work being done under it. This he wholly failed to do. He offered no evidence to show the source of Billingsley’s authority to make the contract or supervise the work on behalf of the company. We have the conclusions of the witnesses that he was appointed general manager but by whom is not disclosed. It requires no exercise of the imagination to infer that he was appointed by the defendant. Likewise no evidence was offered to show that the company had any moneys with which to make payments under the contract. The inference is that it had none, because all payments were made by the defendant. No attempt was made to show that the company had any contract or understanding whereby it was to receive from anybody reimbursement for moneys paid out under the contract or any compensation by way of profit, commission or otherwise for having the improvements made.

Counsel for the defendant says that he was deprived of the opportunity to present all of the facts because he was taken by surprise at the wide latitude allowed by the court in permitting the introduction of evidence not pertinent to the issues raised by the pleadings. But he had no occasion to be surprised. The declaration and affidavit of claim warned him that the plaintiff was seeking to hold the defendant personally liable. The nature of the plaintiff’s claim was fully recognized by the affidavit of merits, which set out the contract in haec verba and charged that it was not the undertaking of the defendant.

Finally it is said that there was no proof made that the plaintiff performed his contract. He was permitted to testify, without objection, as to the amount of the balance due him. In addition to this, the defense of failure to perform was not mentioned in the affidavit of merits. Inferentially it admitted compliance by the plaintiff on his part. Counsel says that this defense was not available to the defendant because his defense was that he was not bound by the contract and he could not make the defense on behalf of the McGrath & Swanson Construction Company. The contention is wholly without merit. The defense of failure of performance would have been consistent with the defense of non-liability.

The question presented by this appeal is not a new one. It has been passed upon by the Supreme Court of this state many times. It cannot be disputed that a corporation as well as a natural person may act as the agent for an undisclosed principal. Likewise it must be conceded that a party to a contract, upon discovery of the fact that he has been dealing with the agent of an undisclosed principal, may hold the latter liable in damages for any breach of the contract.

In the case of Chicago Economic Fuel Gas Co. v. Myers, 168 Ill. 139, the question arose as to the liability of the Economic Fuel Gas Company to respond in damages for injuries sustained by Myers in connection with the laying of certain gas mains and pipes in the City of Chicago. The defense was that the work was being done by an independent contractor, the Chicago Contract Construction Company. We quote at length from the opinion of the court because of the many facts recited which bear close resemblance to the facts in the case at bar, as follows:

“We are of the opinion, however, that the doctrine of ‘independent contractor’ does not apply to the present case. In the first place, the construction company was a mere means or mode, adopted by the gas company for the construction of its system of gas-pipes and gas works. The construction company was a mere instrument or tool used by the gas company for that purpose. The evidence tends fairly and clearly to show, that the construction company was organized and acted simply as the agent or servant of the appellant company. An attempt is here made to evade liability by interposing a construction company as the guilty party. The officers of the gas company were also officers of the construction company. The construction company and the gas company had their offices in the same building, the offices of the gas company being on the first floor and the offices of the construction company being on the second floor. One Judson was the president of the gas company, and at the same time was consulting and supervising engineer of the construction company. One Yuille was paymaster of the construction company and also an officer of the gas company. One Bryant was supervising the office and fixtures of the construction company in December, 1893, and was also secretary and treasurer of the gas company. One Jelps was in the .employ of the gas company and left such employment and worked for the construction company, but at once went back into the service of the gas company. All the officers and employees of the construction company, who testified in this case, were either at the same time connected in some way with the gas company, or passed alternately from the service of one to the service of the other. The contract between the construction company and the gas company contained a provision, that the size of the pipes to be laid should be determined by the gas company; and there are other provisions in the contract, which go to show that the gas company was not to be entirely without control and supervision over the construction of the pipes and the gas plant. The evidence shows, that, on the afternoon of December 1, 1892, two or three hours before the accident occurred, Judson gave the order for letting the natural gas into the pipes; and he testifies, that he is unable to state whether he gave such order as the president of the gas company, or as the supervising engineer of the construction company. Certain it is, that he supervised the construction of the gas-pipes and the gas plant; and it is just as natural to suppose, that he did it as the president of the gas company, as that he did it as the supervising engineer of the construction company. The law is quite clear, that a corporation cannot thus shift its responsibility upon another corporation which is its mere agent and tool. It cannot be doubted, that, if the appellant had employed a natural person to construct its gas-pipes and mains, and used them for the purpose of passing its own gas through them during the process of construction, it would be liable jointly with such natural person for its torts. ‘There is no magic in a corporate organization, where the corporation itself is in fact employed for the accomplishment of the same result, which can exempt the employer from the same responsibility.’ (Kankakee Railroad Co. v. Horan, supra; West Chicago Street Railroad Co. v. Morrison, etc. Co., 160 Ill. 388).”

See also West Chicago St. R. Co. v. Morrison, 160 Ill. 288; Auto Parts Co. v. Roberts, 194 Ill. App. 417; Gause v. Venango Const. Co., 188 Ill. App. 130; Limousine & Carriage Mfg. Co. v. Shadburne, 185 Ill. App. 403.

The McG-rath & Swanson Construction Company was a mere empty shell. Its principal officers were totally ignorant of any activities on its part. It had no money and it had no assets of any consequence. Those it did have were seemingly paid for with moneys of the defendant. All of the facts and circumstances justify the inference that the defendant appointed himself as agent of the company and that he likewise, without knowledge of the president and secretary of the company, designated Billingsley as general manager. The defendant told Billingsley to enter into the contract with the plaintiff. The contract was made for the sole purpose of improving lands belonging to the defendant. True, the legal title was held by one of the defendant’s numerous corporations, but there" would have been no difficulty in shifting the title upon a moment’s notice. The contract entered into with the plaintiff was the .defendant’s personal obligation.

The judgment of the superior court of Cook county is affirmed.

Affirmed.

Holdom, P. J., and Wilsoh, J., concur.


text:
    Clarence F. Buck, Receiver of Integrity Mutual Casualty Company, Appellee, v. West Irving State Bank, Appellant.
    Gen. No. 33,135.

      Opinion filed April 4, 1929.
    Theodore Johnson, for appellant; Elmer H. Heitmann, of counsel.
    Schuyler, Weinfeld & Parker, for appellee; C. Ernest Heaton, of counsel.
   Mr. Justice Ryner

delivered the opinion of the court.

The only question presented by this appéal is the proper construction to be placed upon section 7 of an act of the legislature of this State entitled, “An Act to provide for the organization and management of mutual insurance corporations, other than life; and repealing certain Acts and parts of Acts therein referred to,” in force July 1, 1915, Cahill’s St. ch. 73, If 293.

In defense to a suit brought by the plaintiff, as receiver of the Integrity Mutual Casualty Company, to recover upon a check for $1,000, the defendant interposed a defense and set-off, claiming that it had paid to the insurance company the sum of $1,451.25 on account of premiums on insurance policies which were void. In support of the claim that' the policies were void the defendant charged, in its amended affidavit of merits and amended statement of set-off, that the insurer was organized under the statute in question, but that it

“was licensed only to write the kinds of insurance authorized by Sections 4, 5, 6 and 7 of Section 7 of said Act; that under the terms and provisions of said Sections 4, 5, 6 and 7 of said Section 7,” it “was not authorized to write policies of insurance to indemnify persons, firms and corporations against the direct loss sustained through any dishonest act of any employees, through robbery, burglary, larceny, theft or hold-up, or against direct loss through forgery of any check or draft drawn upon the insured, or of any promissory note or domestic trade-acceptance or bank acceptance payable at the insured bank, etc., or against loss sustained by the insured or by the owner by burglary of money and securities feloniously abstracted during the day or night from within any safe or vault in such bank, or by robbery of money and securities from any part of the premises occupied by assured, etc., that notwithstanding” its “want of power to write such classes of insurance, nevertheless” it “purported to write and did, . . . write such insurance . . . and thereby induced the defendant, West Irving State Bank, to accept from it, . . . policies of insurance purporting to insure said West Irving State Bank against said losses.”

The sections of the statute referred to authorize the making of contracts for certain kinds of insurance as follows:

“4. Against loss, expense, and liability resulting from the ownership, maintenance or use of any automobile or other vehicle.
“5. Against loss or liability to persons or property resulting from explosion, or accident, to boilers, containers, pipes, engines, fly wheels, elevators and machinery in connection therewith and against loss of use and occupancy caused thereby, and make inspections and issue certificates of inspection thereon.
“6. Against loss from interruption of trade or business which may be the result of any accident or casualty.
“7. Against any loss or liability arising from any other casualty or insurance hazard which may lawfully be the subject of insurance, excepting life or fire.”

The municipal court held the pleadings of the defendant insufficient in law, struck them from the files and entered judgment in favor of the plaintiff for the full amount claimed.

Subsections 1 to 6 inclusive of § 7 of the statute provide for insurance against six different classes of risks. Subsection 7 authorizes the issuance of policies of insurance covering “any loss or liability arising from any other casualty or insurance hazard which may lawfully be the subject of insurance, excepting life or fire.” Section 7 in the introductory part contains a further inhibition that corporations organized under the act shall not have power to write any kind of insurance which is not permitted to be written by stock companies under the laws of this State. Section 9 of the statute provides for the compliance with certain special requirements by corporations organized to transact the kinds of insurance described in subsections 4, 5, 6, and 7, thus recognizing that subsection 7 was designed to authorize the taking of risks of a kind other than those described in the preceding subsections.

Counsel f.or the defendant in support of his contention that the judgment should be reversed invokes the doctrine of ejusdem generis and says that the word “other” in subsection 7 should be construed to mean the same kind of losses specified in the preceding subsections. But this is only a rule of construction and we do not think it applicable to the instant case.

The Supreme Court of this State in speaking of the application of the rule, in the case of McReynolds v. People, 230 Ill. 623, said:

“It is a cardinal rule of construction that every clause, sentence, and word in the statute should, if possible, be given effect. The rule ejusdem generis, moreover, does not apply ‘where the specific words signify subjects greatly different from one another, for here the general expression might very consistently add one more variety. In such case, the general term must receive its natural and wide meaning.’ 26 Am. & Eng. Ency. of Law (2d Ed.) p. 610.”

Subsections 1 to 6 inclusive specify subjects of insurance different from one another and the language of subsection 7 should be given its natural meaning. This construction finds strong support in the fact that the subsection in question concludes with a Specific limitation that the doing of life or fire insurance business is forbidden.

For the foregoing reasons the judgment of the municipal court of Chicago is affirmed:

Affirmed.

Holdom, P. J., and Wilson, J., concur.


text:
    Rose I. Davis, Complainant—Appellee, v. Anne Blair et al., Defendants. Appeal of Oliver F. Smith, Defendant—Appellant.
    Gen. No. 33,444.

      Opinion filed April 17, 1929.
    Rehearing denied May 1, 1929.
    Ossian Cameron and Edward H. S. Martin, for appellant.
    Sonnenschein, Berkson, Lautmann & Levinson, for appellee; Ben Rothbaum, of counsel.
   Mr. Justice Ryner

delivered the opinion of the court.

This is the appeal of the defendant, Oliver F. Smith, from an interlocutory order of the circuit court of Cook county, appointing a receiver in a foreclosure proceeding. The only allegation in the bill of complaint as to Smith’s interest in the premises being foreclosed was that he claimed “some right, title, interest and lien in and to” the property.

On January 11, 1929, and before the cause was at issue, a motion for the appointment of a receiver was made and continued. Smith was represented by counsel. After several continuances of the motion, the court on January 23, 1929, appointed 0. H. Penikoff as receiver. The order of appointment recited that the record owner of the premises had been duly notified of the motion. The complainant was excused from giving bond by the language following: “And for good cause shown, after notice and full hearing*, the complainant herein is not required to give bond.” The receiver gave bond which was approved by the court on January 24, 1929.

On February 14,1929, the receiver filed his petition asking for a rule upon Smith to show cause why he should not pay to the receiver rent for the premises at the rate of $125 per month. Smith was ruled to show cause. On February 19, 1929, he filed a verified answer in which he stated, “that the premises involved in said suit are being purchased by Catherine C. Smith, said defendant’s wife, under contract from Anne Blair, and that defendant’s only interest therein is his inchoate right of dower and homestead; that said Catherine C. Smith has been in possession of said premises for several years last past, occupying the same with her family as her homestead; that said Catherine 0. Smith is not a party to this suit and has never been served with process and has had no notice of the appointment of a receiver; that she is a necessary party to this proceeding and the appointment of a receiver is void and should be rescinded and said receiver discharged.”

On the next day Smith filed his appeal bond. On February 23, 1929, an order was entered requiring Catherine C. Smith to show cause within five days why she should not pay rent to the receiver at the rate of $125 per month.

The errors assigned are that the bill of complaint failed to set forth facts sufficient to entitle the complainant to have a receiver appointed and that the court erred in not requiring bond from the complainant.

The complainant has made a motion to dismiss the appeal, urging that it appears of record that Smith is without appealable interest.

The bill of complaint discloses no interest of Smith in the premises. It merely charges that he claims an interest. A careful examination of his answer to the petition of the receiver shows that he in fact disclaims any present interest in the property. He first says that his wife is purchasing the premises under contract and that his “only interest therein is his inchoate right of dower and homestead. ” The use of the word “only” apparently was designed to disclaim any present interest in himself. He then says that his wife has been occupying the premises “with her family as her homestead”; that she was not served with process and had no notice of the appointment of a receiver; that she was a necessary party to the proceeding and that the order appointing the receiver is void and should be “rescinded and said receiver discharged.”

He does not say in his answer that he is living with his wife and family or that he is asserting any rights in his own behalf because of his inchoate right of dower and homestead. He merely advises the court that a 'receiver was erroneously appointed in the absence of notice to a necessary party with a substantial interest. Particularly is this construction of the answer warranted in view of the facts that he was represented in court by counsel when the motion for the appointment of a receiver was made and that he made no protest until almost a month after the appointment and then only when he was confronted with a rule to show cause why he should not pay rent in a substantial amount.

If Smith had made of record facts showing that his wife had a homestead interest in the property, that he was a member of her family, and that he opposed the receivership by virtue of his present right of occupancy under the homestead laws of this State, as distinguished from the inchoate right of homestead, a different question would arise. This he did not do. He negatived any present interest in himself and relied upon the rights of his wife.

The answer of Smith, however, was sufficient to apprise the court of facts requiring it to proceed with caution. One of the principal duties of a chancellor in receivership matters is to exercise unusual care to protect the rights of all parties in interest. Before he appoints a receiver he should search the record to determine if a sufficient foundation has been laid for such action. If he appoints a receiver and finds that he has been imposed upon he should correct the results of the imposition immediately.

In the instant case, the verified bill of complaint was the only evidence, so far as the record discloses, presented in support of the motion for the appointment of a receiver. It contained no allegation that the maker of the mortgage note was insolvent, that waste was being committed or that the premises were not ample security. Anna Blair, the holder of the record title was notified by mail without any showing that personal service could not be had. She did not appear. No mention was made of parties in possession or of their rights or claims.

Under such circumstances the proper procedure to be followed is well stated in the case of Bothman v. Lindstrom, 221 Ill. App. 262, where the court said:

“And indeed it has been held that even where the trust deed expressly pledges the rents as security for the debt and authorizes the appointment of a receiver, the court will not make such appointment where it would be inequitable to do so. Bagley v. Illinois Trust & Savings Bank, 199 Ill. 76. And in the case of Aetna Life Ins. Co. v. Broeker, 166 Ind. 576, it was held that the provision in a trust deed authorizing the appointment of a receiver to collect the rents would not be enforced in a court of chancery except where the equities of the case required that it be done. In the Bagley case the court said (p. 79): ‘The court is not bound to enforce such a provision where it is not necessary to enforce the lien on the rents and profits for the payment of the mortgage debt. But it has been held that such an'agreement in the mortgage is entitled to weight in determining whether the power of the court to make the appointment should be exercised or not. ’ From a- consideration of the authorities we are clear that upon an application for the appointment of a receiver in a foreclosure proceeding, a provision of the trust deed pledging the rents and authorizing the appointment of a receiver is not of controlling force, but that a court of chancery will appoint or refuse to appoint a receiver as may be proper upon a consideration of all the equities of the case.”

Despite the provisions of the usual trust deed authorizing the appointment of a receiver without notice and without complainant’s bond, interested parties are entitled to equitable consideration in a court of chancery. They are entitled to be heard in opposition to the motion for the appointment. If the security appears to be ample it is inequitable to encumber the property with the needless expenses of a receivership. Likewise they are entitled to be present and have the assurance that a competent and trustworthy person is appointed.

Ño showing whatever was made to warrant the action of the court in excusing the complainant from giving bond. In addition the order does not comply with the statute. No facts are set forth and it is not even recited that the chancellor was of the opinion that the bond should be waived. This form of order has been repeatedly held bad. Sherman Park State Bank v. Loop Office Building Corp., 238 Ill. App. 450, and cases cited.

In view, however, of what we have previously said about Smith’s right to prosecute this appeal, we are of the opinion that the appeal should be dismissed and it is so ordered.

Appeal dismissed.

Holdom, P. J., and Wilson, J., concur.


author: Mr. Justice Wilson

text:
    Glen B. Pettit, Plaintiff in Error, v. Weil-McLain Company, Defendant in Error.
    Gen. No. 32,931.
    Opinion filed April 17, 1929.

      John A. Bloomingston, for plaintiff in error.
    John Clark Baker, for defendant in error.
   Mr. Justice Wilson

delivered the opinion of the court.

This was an action in tort brought by the plaintiff, Glen B. Pettit, against the defendant Weil-McLain Company, a corporation, to recover damages by reason of a collision occurring on Ashland avenue, at or near its intersection with 52nd street, two intersecting streets in the City of Chicago. A trial was had with a jury, resulting in a verdict in favor of the defendant, upon which verdict judgment was entered and an appeal taken to this court.

But two points are urged for reversal: first, that the trial court erred in admitting in evidence on behalf of the defendant, a certain ordinance of the City of Chicago, known as section 3822; second, that the court erred in giving certain instructions on behalf of the defendant.

The ordinance in question provides as follows:

“Before turning the corner of any street or public way the driver or person in possession, charge or control of any vehicle, being driven or propelled around such corner, shall give a signal by raising his hand or whip, so that such signal can be plainly seen from behind such vehicle and from the side toward which the turn is to be made, and such signal shall be given in a manner which shall plainly indicate the direction in which such vehicle is about to turn. In turning corners to the right, vehicle shall turn to the right of the center of the street into which they turn. In turning corners to the left vehicles shall pass to the right of the center of the intersection of the two streets.”

It is insisted that this ordinance is superseded by the Motor Vehicle Act contained in chapter 121, Hurd’s Revised Statutes of 1927, Cahill’s St. eh. 95a ft 1 et seq. It is argued that there is nothing in said statute requiring the driver of an automobile turning a corner to raise “his hand or whip, so that such signal can be plainly seen from behind such vehicle and from the side toward which the turn is to be made.”

The statute contains the following provision:

“Nor shall such owner . . . be required to comply with other provisions or conditions as to the use of said motor vehicles or motor bicycles except as in this Act provided. . . . Provided, that nothing in this Act contained shall be construed as affecting the power of municipal corporations to make and enforce ordinances, rules and regulations affecting motor trucks and motor driven commercial vehicles used within their limits for public hire, or from making and enforcing reasonable traffic and other regulations except as to rates of speed not inconsistent with the provisions hereof.” Cahill’s St. ch. 95a, ff 27.

Prior to the passage of the Motor Vehicle Act, municipalities of the State possessed power to legislate upon the subject covered by this act. The original act as amended in 1911, with the foregoing proviso contained in said amended act, provided that municipalities were not prohibited from making and enforcing reasonable traffic and other regulations except as to rates of speed not inconsistent with the amended act.

The Supreme Court in the case of City of Chicago v. Shaw Livery Co., 258 Ill. 409, in its opinion said:

“Section 12 of the act of 1911 deals with the same subject matter as section 13 of the act of 1907 and is practically the same in its scope and intent, except that by the act of 1911 the following language is added to the last proviso of said section 12: ‘or from maldng and enforcing reasonable traffic and other regulations except as to rates of speed not inconsistent with the provisions hereof. ’ That provision was nowhere contained in the act of 1907; and” the intent and purpose of the legislature in incorporating it into the act of 1911 was undoubtedly to meet the statement in the Ayres case that it was clearly the purpose of the legislature to pass a new and complete law designed to take the place of all municipal ordinances or rules regulating the equipment and operation of motor vehicles. By the addition of the language last quoted to the act of 1911 the legislature has invested municipalities with the power and authority to make any regulation of the use of motor vehicles not inconsistent with the provisions of the act, except as to rates of speed. ’ ’

The ordinance in question did not deal with the speed of motor driven vehicles, but might well be classified as a traffic regulation and we cannot say that it is in conflict with the statute. A similar ordinance was before the Supreme Court of this State in the case of Johnson v. Pendergast, 308 Ill. 255, and while the question here involved was not directly raised in that case, the ordinance and the statute were considered as if both were to be given their full force and effect. Inferentially it might be said that the Supreme Court did not consider that the ordinance in question was abrogated by the statute.

We are of the opinion that the ordinance involved in this case is not in conflict with the Motor Vehicle Act, but a valid traffic regulation and not inconsistent with that statutory enactment.

It is also urged for reversal that the court erred in giving certain instructions on behalf of the defendant. From the record it appears that at the close of the evidence, instructions in writing were submitted by both parties and the presiding judge thereupon called counsel into his chambers to discuss them. The court in chambers raised certain objections to the giving of some of defendant’s instructions. Thereupon, counsel for the plaintiff said: £ £ Give him everything he wants, Judge, I don’t care what you give.” Thereupon the court gave the instructions as submitted. One of the instructions in question was to the effect that plaintiff’s failure to observe the provisions of the ordinance in question constituted prima facie evidence of negligence. The other was in regard to the Motor Vehicle Act. Neither instruction is set out in the brief, but we are referred to the record. Under the practice here, the giving or refusing of instructions as relied upon for reversal should be set out in the brief and this court should not be required to search the record in order to find 'them.

We are of the opinion, however, that it is sufficient to say that the action of counsel for plaintiff in telling the court to give the instructions and that he did not care what the court gave, was sufficient to preclude him from thereafter objecting to the giving of such instructions. It may be that counsel for the plaintiff was so certain of obtaining a verdict that he did not care to have any error in the record by reason of the court refusing instructions tendered on behalf of the defendant. This does not, however, entitle counsel to predicate error on the giving of such when he, himself, has led the court into the belief that he waived error, if any, contained in them, and would not take advantage of the giving of the same. Under the circumstances, we do not believe plaintiff, by reason of the action of his counsel, should be entitled to be heard on this question.

For the reasons stated in this opinion the judgment of the superior court is affirmed.

Judgment affirmed.

Holdom, P. J., and Ether, J., concur.


text:
    Robert Blaine Bryant, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 33,080.

      Opinion filed April 17, 1929.
    Fred H. Montgomery and Vernon W. Foster, for appellant; Edward C. Craig, of counsel.
    Joseph D. Ryan, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

The plaintiff Robert Blaine Bryant, brought his action for personal injuries against the defendant Illinois Central Railroad Company, a corporation, in the superior court of Cook county. A trial was had resulting in a verdict for $35,000 in favor of the plaintiff and against the defendant, upon which judgment was entered and an appeal taken to this court.

The declaration filed in the cause consisted of three counts predicated upon the Federal Employers’ Liability Act. At the close of all the evidence, on motion of the defendant, the court directed a verdict for the defendant as to the second count of the declaration, leaving the first and third for their consideration. As to the first and third counts the court refused to direct a verdict, and it is urged, among other grounds for reversal, that in this the court committed error.

The first count charges that on the 6th day of April, 1926, the defendant was a common carrier operating various lines of steam railroads and was, at the time of the accident, engaged in interstate commerce and subject to a certain act of Congress known as the Federal Employers ’ Liability Act; charges further that on the day in question plaintiff was employed as a fireman on a certain locomotive engine which at the time was engaged in interstate commerce and that the work of firing or coaling the said engine was accomplished by means of a certain steam power driven stoker, consisting of divers gears, valves, etc., which wqs customarily in charge of the plaintiff and operated by him in the course of his employment; charges further that on the day in question the said stoker had become inoperative and the engine was brought to a stop at or near a certain inspection pit at a roundhouse used by the defendant in its interstate commerce aforesaid, for the purpose of examining the said stoker in order to determine the cause- of its failure to operate; that while the said engine was stopped and said stoker was at rest, the plaintiff, in the course of his employment, placed his hand in a certain opening in which one of the aforesaid' propellers was situated and that while he was then and there endeavoring to remove a certain obstruction, or piece of iron, that was caught in said' propeller aforesaid and while he was in an obviously dangerous and exposed position, a certain other servant of the defendant who was, then and there, assisting the plaintiff and co-operating with him in the work, carelessly and negligently started said stoker in operation and plaintiff’s hand and arm were caught and drawn into the propeller and crushed and he thereby suffered the loss of said hand and arm; charges further that he suffered other divers injuries as the result of said accident. Count three is very similar and the objections raised to the ruling of the court are the same as to both counts.

It is insisted on behalf of the defendant that the evidence tended to show that the plaintiff had placed his hand in the propeller in order to ascertain the size of the piece of iron which was interfering with the work of the propeller in order that he might tell from the investigation whether it was sufficient to stop the stoker, whereas the declaration charged that he had placed his hand in the propeller for the purpose of endeavoring to remove a certain obstruction or piece of iron which was caught in said apparatus.

The gravamen of the action, as charged in the declaration, was the negligence of the fellow servant in starting the propeller while the plaintiff’s hand was in this piece of machinery, and while the plaintiff was engaged in the course of his employment. If the plaintiff had his arm in this position while engaged in the service of the defendant, and in the course of his employment, we cannot see that it would constitute a material variance as to whether the purpose was to ascertain the cause of the failure of the propeller to operate, or to remove an obstruction which was causing it to fail to operate.

The declaration charges the defendant with being a common carrier, engaged in interstate commerce at the time of the accident; that the plaintiff was employed by the defendant and at the time of the accident was engaged in the course of his employment; that while so employed he was in a position of danger and was injured by reason of the negligence of a fellow servant co-operating with him in the work; that the defendant was liable for the negligence of the fellow servant because of the Federal Employers’ Liability Act. Moreover, it appears that the cause was tried on the theory that both plaintiff and the traveling engineer Buckles were endeavoring to ascertain the cause of the trouble. Upon the motion of the defendant to direct a verdict on the ground of variance at the end of all the evidence, plaintiff made his motion to amend the declaration to conform to the evidence, by adding to each count on the face thereof certain words which would include the “examination” of the said obstruction, as well as the “removal” of the obstruction.

While we are of the opinion that the variance, if any, was immaterial and had no bearing on the merits of the proceeding, nevertheless, the trial court might well have allowed the amendment in order to obviate any question concerning the question of variance. In the view we take of the matter there was not such a material variance as would authorize the trial court to have directed a verdict and there was no error in its refusal so to do.

Our attention is directed to the case of Buckley v. Mandel Bros., 333 Ill. 368. The court in its opinion in that case said:

“When the variance between the declaration and proof is insisted on at the trial, so that the plaintiff has the opportunity to amend his declaration, it is error for the court to refuse to direct a verdict if he fails or refuses to amend the declaration. Wabash Western Railway Co. v. Friedman, 146 Ill. 583; Lake Shore and Michigan Southern Railway Co. v. Ward, 135 id. 511; Chicago Union Traction Co. v. Hampe, 228 id. 346; Republic Iron Co. v. Lee, 227 id. 246; Wabash Railroad Co. v. Billings, 212 id. 37.”

From this reasoning it necessarily follows that if there was a variance the court should have permitted an amendment, as prayed for, and his refusal so to do cannot be charged against the plaintiff. The plaintiff had placed his arm in the propeller while employed in and about the work of the defendant and, in the view we take of the case, it is immaterial whether it was for the purpose of removing an obstruction or attempting to ascertain what, if any, the obstruction was.

As stated by Mr. Justice Holmes in the case of Braithwaite v. Hall, 168 Mass. 38 :

“The meaning of the declaration is plain and sufficient. Nowadays we do not require pleadings to be guarded against all the possible distortions of perverse ingenuity.”

It is also insisted on behalf of the defendant that the testimony offered on behalf of the plaintiff did not tend to show that the automatic stoker was caused to start by reason of the action of Buckles, the traveling engineer of the defendant. But, from the evidence, it appears that there were facts from which the jury could draw the conclusion that the propeller was put in motion by his act. The automatic stoker was a piece of -machinery used to convey coal, by means of a propeller or screw, from the tender of the engine to the fire box. The valves which operated this stoker were on the left hand side of the boiler head and controlled the steam furnished by the locomotive, used for that purpose. There was a conveyor extending from the fire box of the engine to the coal tender underneath the floor of the engine deck. Inside this conveyor or trough there was a spiral screw which revolved and conveyed the coal from the tender to the locomotive fire box. The stoker was operated by a separate engine and by means of two valves located on the side of the engine boiler.

There is evidence tending to show that at the time of the accident the plaintiff was in the tender with his arm in the propeller or screw and that Buckles was in the cab of the engine. It is insisted on behalf of the defendant that a cracked valve set the stoker engine in operation and by cracked valve is not meant a mechanical defect, but a slight opening which caused sufficient steam to issue from the engine to cause the propeller to revolve. On the other hand it is insisted by the plaintiff that the propeller was caused to revolve by Buckles operating the valves in question. This was a question for the jury and decided by them in favor of the plaintiff and there is evidence in the record which, standing alone, would be sufficient for the jury upon which to predicate such a verdict.

It is insisted that the court erred in permitting it to come to the attention of the jury that the plaintiff was a married man, but the records show that this fact was first elicited on cross-examination of the plaintiff when, in answer to a question, he stated that while in the hospital he was not permitted to see visitors, not even his family, bio objection was made to this by defendant nor was a motion made to strike it out. It was again brought to the attention of the jury by reason of a statement of Miss Tobias, an employee of the defendant, who took down in shorthand certain questions and answers propounded to- the plaintiff by agents of the defendant prior to the trial of the cause. Part' of this statement was introduced in evidence by the defendant and plaintiff’s counsel proceeded to introduce the balance of the statement and in this statement the fact of his being married appeared. When part of the written statement was offered, the remainder became competent when offered by the plaintiff. Morris v. Jamieson, 205 Ill. 87. The fact that the evidence was first elicited by the defendant’s counsel on cross-examination and again appeared in a statement presented by him, obviously relieves the plaintiff of any blame in having it called to the attention of the jury.

It is insisted on behalf of the defendant that, at the time of the accident, plaintiff was not engaged in interstate commerce. The train upon which plaintiff was employed as a fireman was known as the Floridan, running between Chicago and Florida, and, on the day in question was northbound. The engine upon which plaintiff was employed as a fireman had been coupled to the train at Centraba and was twenty minutes late in reaching Champaign where it was uncoupled and another engine attached for the purpose of completing the journey. When the train arrived in Champaign, a man by the name of Buckles, an official of the defendant known as a traveling engineer, boarded the engine and discussed with the plaintiff the question of the failure of the propeller to operate. They rode upon the engine to the roundhouse pit and just as the engine was going on to the pit, there is testimony to the effect that Buckles said to Bryant, “I want you to show me what is wrong with the stoker,” and that Bryant replied, “All right, I will show you.” It was while the engine was upon the roundhouse pit that the accident occurred, and while Buckles and the plaintiff were engaged in attempting to ascertain what was the cause of the trouble with the propeller.

It is unquestioned that the defendant in operating the train in question from Florida to Chicago was engaged in interstate commerce in its operation, nor is it questioned but that plaintiff while acting as a fireman for the defendant company from Centraba to Champaign was employed in an interstate operation of the defendant, but it is insisted that after the engine was uncoupled at Champaign and transferred to the roundhouse pit, that the character of this employment ceased and that the work performed by the plaintiff at that place with reference to the examination of the propeller, was not such work or employment as pertained to an operation in interstate commerce, and, consequently, plaintiff was not entitled to the benefit of the Federal Employers’ Liability Act. This question is ordinarily one of fact. Whether the defendant and an injured employee were engaged in interstate commerce at the time, is a question for the jury. Brown v. Illinois Terminal Co., 319 Ill. 326; Bolle v. Chicago & N. W. Ry. Co., 324 Ill. 479.

In the case of Bolle v. Chicago & N. W. Ry. Co., supra, the court in its opinion says:

“Whether or not at the time of the accident plaintiff was employed by defendant in interstate commerce was a controverted question of fact upon which plaintiff had a constitutional right to a trial by jury. This question of fact was the main issue in the case. Whenever an issue is made in a case and evidence must be introduced to maintain the issue, controverted questions of fact are involved which include not only evidentiary facts but ultimate facts, even though there be no conflict in the testimony. (Chicago Title and Trust Co. v. Ward, 319 Ill. 201; Frank v. Hoskins Co., 323 id. 46.) The evidence in the case was not such that all reasonable minds must necessarily agree that at the time of the accident plaintiff’s employment was not such as to bring him within the provisions of the Federal Employers’ Liability Act.”

Defendant cites Chicago, B. & Q. R. Co. v. Harrington, 241 U. S. 177. The facts in this case show that the interstate movement of the cars had long since ended and that the cars which the plaintiff in that case was engaged in switching had been in storage on the tracks for a week or more prior to the accident. It was evident in that case that the interstate movement had long since ceased and that plaintiff’s duty in that case was an intrastate employment.

The facts in the case of Illinois Cent. R. Co. v. Behrens, 233 U. S. 473, show that the train in question on which the plaintiff in that suit was employed, was engaged in a purely intrastate movement.

The Supreme Court of the United States in the case of North Carolina R. Co. v. Zachary, 232 U. S. 248, had occasion to pass upon a somewhat similar question as that involved in this case. From the facts in that case it appears that the plaintiff had been inspecting, oiling and firing his engine preparatory to an interstate commerce trip; that he had left the engine and was proceeding to his boarding house, but was still upon the premises of the defendant. The Supreme Court in its opinion says:

■ “Again, it is said that because deceased had left his engine and was going to his boarding house, he was engaged upon a personal errand, and not upon the carrier’s business. Assuming (what is not clear) that the evidence fairly tended to indicate the boarding house as his destination, it nevertheless also appears that the deceased was shortly to depart upon his run, having just prepared his engine for the purpose, and that he had not gone beyond the limits of the railroad yard when he was struck. There is nothing to indicate that this brief visit to the boarding house was at all out of the ordinary, or was inconsistent with his duty to his employer. It seems to us clear that the man was still ‘on duty,’ and employed in commerce, notwithstanding his temporary absence from the locomotive engine. See Missouri, K. & T. Ry. Co. v. United States, 231 U. S. 112, 119.”

In the case at bar there is evidence tending to show that plaintiff, while examining the propeller of the engine on which he was employed as a fireman, was still on duty as his obligation to the company required his returning the engine to the roundhouse. Moreover, his then employment was for the purpose of preparing the engine for future service upon the road and, from the evidence, it appears that he, himself, had a regular run from Centralia to Champaign, so that it is inferable that the work which he was doing was preparatory to a future employment of the engine in an interstate commerce operation.

Under the authorities, we are of the opinion that the court properly left this question to the jury, particularly as there was evidence on which reasonable minds could differ. Consequently, it became a question of fact for their consideration as to whether or not plaintiff at the time of the injury was engaged in an employment of the defendant that was in furtherance of interstate commerce.

The doctrine of assumed risk is not in the case, nor is the rule in regard to the negligence of a fellow servant involved, because of the fact that these questions are controlled by the provision of the Federal Employers’ Liability Act.

Plaintiff at the time of the accident was 39 years of age and earning approximately $2,400 a year. He had been employed by the defendant for sixteen years and it does not appear that he was familiar with any other calling or occupation. By reason of the injuries it became necessary to amputate his arm and it necessarily follows that the physical and mental suffering was extreme. While the verdict is large, we cannot say that it is excessive. We have examined the instructions objected to and find there was no error on the part of the trial court either in giving or refusing the same.

For the reasons stated in this opinion the judgment of the superior court is affirmed.

Judgment affirmed.

Holdom, P. J,, and Byner, J., concur.


text:
    Robert J. Benedict, Assignee of E. Dorfzaun, Appellant, v. Alvin L. Bear, trading as Bear Steel & Wire Company, Appellee.
    Gen. No. 33,089.
    Opinion filed April 17, 1929.
    Connel M. McDermott, for appellant; Harold M. McGuiggan, of counsel.
    Teller, Levit, Silvertrust & Levi, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

Robert J. Benedict, plaintiff, as assignee of a judgment for $1,516.26, recovered by his assignor E. Dorfzaun, against the defendant, Alvin L. Bear, doing business as Bear Steel & Wire Company, filed his claim based upon said judgment in the circuit court of Cook county. The judgment was a foreign judgment obtained in the municipal court of Cleveland, Ohio, on personal service on the defendant. From the pleadings in the case as shown by the record in the municipal court of Cleveland, the judgment was based upon a contract entered into on or about July 28, 1924, under which E. Dorfzaun shipped to the defendant approximately 70,000 pounds of dead soft, cold rolled, strip steel at a price of $43 a ton. The defendant refused to pay for the steel under this agreement until it had been paid for a loss sustained by him growing out of a previous contract entered into on or about July 3, 1924. This transaction involved approximately 43,740 pounds of hard, cold rolled, steel scrap, which defendant claimed could only be disposed of at a loss as junk, but which he had paid for prior to his discovery of the fact that the shipment under the agreement of July 3 was contrary to specifications.

The declaration filed in the case relied upon the judgment and contained allegations showing that the cause of action upon which the suit was predicated, was based upon the agreement of July 28, 1924. The defendant filed his amended plea to the claim in which he set out the facts practically as stated, and claimed that, by reason of the loss sustained by him under the agreement of July 3,1924, which he had not discovered until payment under said agreement had been made, he had sustained damages to the amount of $799.60, which he claims should be set off against plaintiff’s demand.

A demurrer to the plea was interposed on behalf of the plaintiff which was overruled and, plaintiff electing to stand by his demurrer, judgment was entered by the court in favor of the plaintiff in the sum of $919.42, which was the difference between plaintiff’s claim and the amount claimed by the defendant in its amended plea of set-off. From this judgment plaintiff prayed an appeal.

The amended plea set out matter growing out of a separate and distinct transaction, but it is insisted on behalf of the defendant, that the amount claimed was a liquidated amount and further that, even though it were not liquidated, nevertheless, the defendant could plead and rely upon it because of the fact that plaintiff was a nonresident.

It is a well recognized rule of law in this State that unliquidated damages growing out of a different and distinct contract or agreement, and in no wise connected with the action on which a claim is predicated, cannot be the subject matter of a set-off as to such other or different claim or contract. Duncan Lumber Co. v. Leonard Lumber Co., 247 Ill. App. 469, affirmed by the Supreme Court of this State in 332 111. 104. The facts in that case are very similar to the case at bar and controlling in this action. In that case the plaintiff sued for certain lumber sold and delivered under the contract of February 19, 1926. The defendant attempted to set off a counterclaim by reason of damages growing out of a contract made between the parties on February 2, 1926. This court held that they were distinct and unrelated transactions and that damages growing out of one being unliquidated could not be set off against the other. In passing on the question as to whether or not the damages w.ere liquidated or unliquidated, the Supreme Court in its opinion, said:

“Defendant contends that the damages sought to be recovered by it in its set-off are liquidated damages, and cites two decisions of the Appellate Court that if damages can be ascertained by computation or calculation they are liquidated. This question has been passed upon by this court in numerous of the cases first above cited. Bouvier was quoted as defining ‘liquidated damages’ to be a certain sum due, and that it must appear not only that something is due but also how much is due, or the debt is not liquidated. ‘An unliquidated debt is one which one of the parties cannot alone render certain.’ The damages claimed by defendant in its set-off in this case were not different, in the method of ascertaining the amount, from those in Hawks v. Lands, supra, Higbie v. Rust, supra, and Ewen v. Wilbor, 208 Ill. 492. As we have before stated, this case cannot be distinguished from Higbie v. Bust, supra, where the court distinctly held the damages sought to be set off were unliquidated and grew out of a contract other than the one sued on.”

Under the rule as laid down in this State the damages claimed under defendant’s plea of set-off are, necessarily, unliquidated. A trial of this issue would involve the question as to whether or not there were any damages and, if so, how much, and would, necessarily, require proof as to market values. It could not be said that the amount of damages was fixed and certain.

As to the position of the defendant, that it was entitled to set off its claim against the plaintiff even though the amount claimed by reason of the plea of set-off was unliquidated because of the fact that- the plaintiff was a nonresident, we can only say that this court in the case of Duncan Lumber Co. v. Leonard Lumber Co., already referred to, has held that there is no force in the contention of defendant.

No reason exists for the citation of authorities other than the foregoing decision, wherein the question was given full consideration.

For the reasons stated in this opinion the judgment of the circuit court is reversed and judgment will be entered here for the plaintiff for the sum of $1,516.26, with interest at 5 per cent, from February 19, 1925, together with the costs of this proceeding.

Judgment reversed and judgment here.

Holdom, P. J,, and Ryner, J., concur.