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    The People of the State of Illinois, Defendant in Error, v. Charles Bischoff et al., Plaintiffs in Error.
    Gen. No. 29,957.
    1. Conspiracy — sufficiency of evidence to show guilt of employees of principal defendant. In prosecution for conspiracy to get money by false pretenses or a confidence game, evidence held not to show guilt on the part of certain defendants who were merely employees of principal defendant.
    2. Conspiracy — investment of own money by alleged conspirator with principal defendant as proof of guilt of conspiracy to defraud: others. Persons misled by representations into the belief as to soundness of transactions to the extent that they invested large sums themselves were not guilty of conspiracy to obtain money by false pretenses or a confidence game by reason of the fact that they induced others to invest their money.
    3. Conspiracy — sufficiency of evidence to show guilt of defendants related to principal defendant. In prosecution for conspiracy to obtain money by false pretenses and a confidence game, evidence held to sustain conviction of certain defendants who were related to the main defendant.
    4. Conspiracy — sufficiency of evidence to show intent, motive, design and concerted action. In prosecution for conspiracy to obtain money by means of false pretenses and a confidence game, evidence held sufficient to establish intent, motive, design and concerted action with knowledge of the fact.
    5. Conspiracy — participation by concealment of fraud. It is a fraud to conceal fraud, and by such concealment one becomes in the eye of the law an accomplice.
    6. Conspiracy — proof requisite to conviction. In prosecution for conspiracy to obtain money by means of false pretenses and a confidence game, it was not necessary to show whether or how each of the defendants was to participate in the receipts, it being sufficient to show that they participated in the conduct, the overt acts, which constitute, considered as a whole, a conspiracy to obtain money by false pretenses or the confidence game.
    7. Conspiracy — sufficiency of evidence to show conspiracy to defraud persons named. In prosecution for conspiracy to obtain money by means of false pretenses and a confidence game, evidence held to show a conspiracy to defraud the specific persons named in the indictment.

      8. Criminal procedure — other offenses admissible to show intent

      and knowledge. In prosecution for conspiracy to obtain money by means of false pretenses and a confidence game, evidence of other offenses tending to show the intent and knowledge on the part of the conspirators was admissible.
    9. Cbiminal pbocedtjbe — election t>y state in misdemeanor case. In prosecution for conspiracy to obtain money by means of false pretenses and a confidence game, where indictment charged conspiracy to defraud different persons, it was discretionary with the court to deny a motion of the defendants that the State be required to elect as to which offense it would seek a conviction on, the crime charged being a misdemeanor.
    Error by defendants to the Criminal Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed October 28, 1925.
    Litsinger, Healy & Reid, for plaintiffs in error.
    Robert E. Crowe, State’s Attorney, Edward E. Wilson and Clarence E. Nelson, for defendant in error.
   Mr. Justice Taylor

delivered the opinion of the court.

The defendant, Charles Bischoff, was indicted and charged with taking part in a conspiracy to obtain money by means of false pretenses and a confidence game. There was a trial before the court, with a jury, and he was found guilty and sentenced to imprisonment in the penitentiary and fined $2,000. This is a writ of error to reverse the judgment on that verdict and sentence.

The indictment was against the following: Raymond J. Bischoff, Charles Bischoff, Thomas 0. Davis, E. G-. Gear, T. D. Wilson, Charles Darwin, Stephen Bagowitz, Walter Silver, Frank Shaput, Karl Joblowski, Walter Tuskovski, Matthew Venckus, James Jomak, John Mickevitz, John Karbanski, Charles Stankus, Adolph Sparkevitz, Alex Kissel, Anton Walukas, Joseph Chatro, Felix Jawgill and Frank Dalkus.

It charged that on February 10, 1922, they did unlawfully, fraudulently and maliciously combine, conspire, confederate and agree together and with divers other persons whose names are unknown, with the fraudulent and malicious intent to wrongfully, wickedly and unlawfully obtain certain sums of money from certain specified persons and unknown sums of money from persons whose names were unknown, by false pretenses, and by means of the confidence game.

The indictment contained twelve counts. The third and fourth counts were dismissed and the eleventh and twelfth counts were quashed, and the case was tried on the remaining eight counts. The latter counts charged the obtaining of $2,000 from Walter Butkiewicz; $3,900 from Frank Lokis; $1,900 from Francis Laurinaitis; and $2,100 from Alice Jankus; four counts charged false pretenses, and four the confidence game. A separate trial was granted to Wilson, Darwin, Mickevitz and Sparkevitz. The State caused a nolle prosequi to be entered as to Bagowitz, Silver, Jomak, Kissel, Walukas and Jawgill. Raymond J. Bischoff: was not apprehended; and the record is silent as to Joblowski and Chatro. Thomas O. Davis was presumed to have died. The defendants Venckus and Stankus were tried and found guilty and fined, and the fines paid. Writs of error have been sued out by Charles Bischoff, E. G. Geer, Frank Dalkus, Walter Tuskovski and John Karbanski and Frank Shaput, and all were consolidated for the purpose of a hearing.

In this opinion, we shall consider not only the case of Charles Bischoff, but all the writs of error that were consolidated for hearing, and shall adopt this opinion in each of the other, cases in so far as it is pertinent and appropriate.

Raymond J. Bischoff and Charles W. Bischoff were brothers. In 1920, the former was about 26 years old, and the latter a few years older. Earl Geer was their brother-in-law, having married their sister. Davis was the stepfather-in-law of the Bischoff brothers and stepfather of their sister. In 1920, the two Bischoffs had letterheads printed with the title, Bischoff & Bischoff, and had offices in the Marshall Square Building, at Marshall Boulevard and 22nd street, Chicago. The testimony of Charles Bischoff is that at that time they were not partners; that each did his own business although they used the same office; that he, Charles, at that time was selling insurance; that he solicited insurance from the numerous clientele of his brother. The business of Raymond J. Bischoff in Chicago seems to have started by dealing in stocks. What he actually did is shown only by the evidence of others. He was not apprehended and did not testify. One Karbanski testified that he first met him on August 30, 1919, and that Raymond said he was a Boy Scout master; that he told him, the witness, that if he would give him some money to invest, he would make money for him, the witness; that at the time he gave Raymond J. Bischoff $100, and several months afterwards the latter paid it back, and he, the witness, then let him have $300 and later Raymond J. Bischoff paid him $500; that when he first spoke to Raymond J. Bischoff, the latter mentioned the stock market.

The testimony of Charles Bischoff is that in February, 1920, he left the Rock Island arsenal where he had been supervisor of personnel, and came to Chicago to work for his brother; that his brother, having purchased a patent on an aluminum cooking utensil, was trying to put it on the market; that his, the witness’s, duty was to have the dies made and have the utensil manufactured; that he continued at that work' for about three months; that in the early part of 1920, he went with his brother to a stock broker’s office and watched him make some trades, and at his brother’s suggestion took a “flyer” in Vanadium Steel and Polodium Steel, buying, together, 50 shares, on which, in the course of two weeks, he made $110 on a $100 investment; that after working on the patent kitchen utensil, for about three months, he went back to his former work of selling insurance and real estate, which he continued until January, 1921; that then, at •the request of his brother, he went to LaCygne, in Kansas, to represent his brother as to some oil properties that his brother had bought there; that his duties were to complete certain drilling developments that his brother had already inaugurated.

In June, 1919, Earl Geer married a sister of the two Bischoffs. He had spent two years in the army, one of which was in France, and had worked for some time for several automobile agents. In the spring of 1920, he went to work for Raymond J. Bischoff as manager of an automobile salesroom which Bischoff had on Western avenue. Geer testified on direct ex-animation that he was manager of that business for Raymond J. Bischoff, but on cross-examination, that although Bischoff financed it in 1920, it was practically his, Geer’s own business; and that it was not incorporated, though operated in the name of Bischoff & Company. In the fall of 1920, Geer went to work for Raymond J. Bischoff in the latter’s office, in the clerical department. He says that at no time did he have anything to do with the management of Raymond J. Bischoff’s business, and was never consulted about any investments; that he never invested any money in that business, but that his wife did, and lost about $1,150. One Wilson, who worked for Raymond J. Bischoff as cashier, testified that Geer was a general handy-man; that some times he worked in the cashier’s cage and some times ran errands ; that he also sold wind shields and patent pots; and that if there were mistakes in the records he would try to .settle them, and would try to settle difficulties between customers and agents as to amounts of money in dispute. When Geer first went to work for Raymond J. Bischoff he got $50 a week, and later about $90 a week. Wilson, the cashier, testified that Geer was assigned to the cashier’s cage and took money in, and was in R. J. Bischoff’s office practically every day; and also talked with customers. Poska testified that Raymond J. Bischoff told him that Geer was manager, and what he said should be obeyed and carried out.

Apparently, in the early part of 1920, there was brought into being by Raymond J. Bischoff a business called R. J. Bischoff & Co. Just when and exactly how it was started does not appear to be clearly shown. It was not a corporation. What.the purpose of Bischoff & Bischoff was is not clearly shown. The chief business of R. J. Bischoff & Co. seems to have been to borrow money, and in return give promissory notes, with the representation, express or implied, that interest would be paid at 10 per cent, or more. The cashier, Wilson, testified that he understood that R. J. Bischoff & Co. was made up of Raymond J. Bischoff alone.

Davis, the stepfather of the Bischoffs ’ sister, worked in the office of R. J. Bischoff & Co. At the time of the trial representations were made that he was dead. In his lifetime, he had acted as office manager for R. J. Bischoff & Co. Wilson, the cashier, stated that towards the last the offices of R. J. Bischoff & Co. consisted of four rooms and the cage; that one was used by Raymond J. Bischoff, one, the middle room, was occupied by Davis, and an office girl, one was used for a loafing place for men, and one for the clerical help. Wilson also testified that Davis was the office manager, or in charge of the office of R. J. Bischoff & Co., and was in charge of the office in the absence of Raymond J. Bischoff. Wilson went to work for R. J. Bischoff & Co. in May, 1920, and worked there until the company went into bankruptcy in 1922. His duties were to receive the money that was brought in and to pay all notes that were due and account for the money during the business day. There were employed in the office of R. J. Bischoff & Co., according to his testimony, himself, as cashier, Faza, an assistant to him, Geer, Davis, Mrs. Talbot, stenographer and secretary, Beatrice Marr, a stenographer, Miss Corrigan, general office work, and Miss Faza. He testified that Charles Bischoff was at the office on different occasions, but, as far as he could see, as a visitor.

Although Wilson was a defendant, with the others, who were named in the indictment, he was granted, on motion, a separate trial. He was called as a witness by the State, and his testimony contains the chief statement concerning the business methods and business done by B. J. Bischoff & Co. His evidence is that Raymond J. Bischoff (or R. J. Bischoff & Co.) had a number of men he called agents or field men whom he employed at $25 to $35 a week to go out among the people and tell them that he had a 1 ‘ special” on for a certain date and if they wanted to invest in it they could bring the money in to the office themselves, or the agents could do it for them; that when the people paid their money they were given promissory notes, which ran for a month or more up to a year; that Raymond J. Bischoff held meetings of the agents, known as field agents meetings, about once a week upstairs in the Marshall Square offices; that some of the field agents who were present from time to time were Shaput, Bagowitz, Venckus, Stankus, Silver, Walukas, Tuskovski, Karbanski, Jornak and others; that he attended 50 or 75 of those meetings; that at the meetings he heard Raymond J. Bischoff talk about his various enterprises and what returns he expected to get from them; that he heard him speak of his oil lands, how well they were going, of an automobile body factory at Columbus, Ohio, and of the Universal Stamping Factory; that he heard Bischoff say that they were drilling wells and that some of the property was already producing; that he would say, for example, that he had a “special” for a couple of months in the future and that he expected it to pay 10 or 15 per cent; and that he had a good deal on in which he was going to use more money and expected it to return big profits; that he told the agents to go out and tell the people, the customers, about it. He further testified that there were about 50 specials; that a special, according to his understanding of Raymond J. Bischoff, was a special transaction that he had on hand, such as a transaction on the stock market or in oil lands, or concerning the body factory at Columbus, for which he wanted to use a certain amount of money for two to six months, which money he was going to use and invest in one or two of those various enterprises; and that in return for the money he would give each investor his own simple promissory note, running for a month or a longer time, up to a year, and bearing interest at 10 or more per cent. He further testified that the notes were made out in series and numbered, such as “5, series, 100010”; that as a series matured, Raymond J. Bischoff would tell him how much interest to pay, 10 or 15 per cent, for example; that if he said 10 per cent and the customer presented a note of that series for $100, he would pay him $110; that he had authority as cashier to pay all notes of a particular denomination as they came due, unless he was told otherwise; that before the bankruptcy proceedings he was so told and stopped making payments; that the amount of money taken in on specials from day to day ran from $10 to $200,000, though there were not more than two days when the latter amount was received.

As to the conduct of customers, he testified that they presented their notes at the cage and were paid in cash if they wanted it; that some of the customers took the money away with them, that a great many others walked around the office and then reinvested it; and others would keep it two or three days and then bring it back. The evidence showed that generally after the agents had received their instructions and information about “specials” there would be a very large increase in the amounts that customers brought or sent in.

The agents, many of whom lived in the stock yards district, according to Augustiniak, were first customers then agents. They would bring in money from various people and then notes would be made out for the particular amounts; the investments were usually small at first, but frequently grew into larger and larger amounts.

Three of the six defendants, Karbanski, Tuskovski and Shaput, were field agents. Karbanski first met Raymond J. Bischoff and made his first investment on August 30, 1919. He later became an agent. He had worked in the stockyards for Nelson Morris & Co. for 25 years. On his investment in R. J. Bischoff & Co. he lost $5,500. Tuskovski, who had been in the saloon business, became a field agent, the exact time is not shown, and, as a customer, invested in R. J. Bischoff & Co. and lost about $7,000. Shaput, who had been a laborer for Armour & Co. at the stockyards, began work for R. J. Bischoff & Co. as a field agent in April, 1920. He testified that his loss was about $7,000. The defendant Dalkus first dealt with R. J. Bischoff & Co. in April 1920 or 1921, first as a customer, then as an employee. Prior to that, he had been in the restaurant business, and before that, from 1911 to 1917, he was a wrestler. He was employed as door tender and to run errands. He testified he lost throught R. J. Bischoff & Co. about $16,000. The other defendants were Charles W. Bischoff and G-eer.

Apparently, one of the chief things considered by Raymond J. Bischoff as a plausible asset in his business, and which he used as the basis of obtaining money, was stock in the Y Gas & Oil Company. Venckus said it was Bischoff’s “main.”

In April, 1921, R. J. Bischoff got up an excursion to take field agents and customers to certain places in Kansas and Louisiana to see what he claimed were his oil properties. A special train of four Pullmans was engaged. It cost about $7,000, all of which was paid for by R. J. Bischoff. The passengers numbered about 125. All the defendants were aboard, except Charles W. Bischoff, who at the time was already at the property in Kansas which was to be visited. The first stop was at LaCygne, Kansas, where they met Charles W. Bischoff, who had already prepared, pursuant to a telegram he had received from his brother, a dinner for 125 people. The party was then taken around with Charles W. Bischoff in charge, and shown various oil wells, and witnessed the “shooting” of one particular well. Raymond J. Bischoff, according to Wilson, the cashier, said the property belonged to him. They were shown, altogether, 12 or 13 small wells. They were then taken to Vivian, Shreveport, Harmon and Eldorado, Louisiana. Charles W. Bischoff was with them. At Harmon, they were shown 15 to 20 wells, with derricks, which Raymond J. Bischoff said he owned. At Vivian, they looked over some oil fields. Wilson testified that, though not positive, he thought Raymond J. Bischoff said they belonged to him. At Eldorado, they looked at oil fields, covered, as Wilson says, with oil wells in such numbers that he could not estimate them. Both Raymond J. and Charles W. Bischoff were there with all the others. Raymond J. Bischoff told them that he wanted to take them out and show them a well that he was contemplating buying. Wilson testified that he could not state positively whether Charles W. Bischoff was present at any time when Raymond J. Bischoff said he owned the various oil wells. From Eldorado, they came back to Chicago, making an intermediate stop, for pleasure, at Hot Springs, Arkansas. The witness Augustiniak testified that they also stopped at Momingsdale and saw some oil wells and fields; that Raymond J. Bischoff said he owned oil wells in the Kado Lake region in Texas; that he took the trip because Raymond J. Bischoff asked him' to go and see his oil wells. He also testified that Raymond J. Bischoff expected 3,000 barrels of oil, but that later the engineer said they were getting 2.

Poska, a physician who was on the trip, testified that they saw three oil fields; that Raymond J. Bischoff said there were 108 wells; that he made a speech and said that some of them belonged to the company. On the trip, Geer, according to Poska, went around talking to the men. Paulanski, a customer, testified that on the trip Charles W. Bischoff said to him, “We are going to do a big business,” and told him that he, Charles W. Bischoff, was manager of the wells.

Butkiewicz testified that he was on the trip and saw oil wells and drilling, but saw no oil.

The evidence as to the market value of the Y Oil and Gas Company stock is somewhat indefinite. Charles W. Bischoff testified that, at his brother’s request, he bought 2,500 shares at 85 or 86 cents a share and later sold it at 22 or 23. Butkiewicz testified that Raymond J. Bischoff was president of the Y Oil and Gas Company; that he paid $400 for 500 shares, that Dalkus told him they would be able in a few months to sell them to Bischoff & Co. for $2 a share; that at the time of the trial they were worth from 5 to 10 cents a share. Tiedebohl testified that Y Oil was dealt in on the New York curb.

According to the testimony of Paulanski, in the summer of 1921, there was a picnic given at Willow Springs, at which 4,000 people were present, and that they were addressed by both the Bischoff brothers; that Dalkus and Geer were present; that he did not' hear anything that was said.

The defendant Charles W. Bischoff testified on October 14, 1921, he was present at a birthday party given for his brother; that besides himself and his brother there were present Mr. Wetten, Raymond J. Bischoff’s confidential attorney; H. A. Massey, of H. A. Massey and Co., Roberts, of Roberts, Hitchcock & Co., George Genie, manager of the Chicago office of E. H. Clark, Geer and two or three others; that in the course of the conversation, it was stated that his brother, through stock purchases in the market, had obtained control of the Y Oil and Gas Company; that Mr. Wetten proposed a toast, that they all drank to the solvency of Raymond J. Bischoff, and that the “ Y ” oil alone, would, with the prospects it had in sight at that time, enable him to liquidate all of his indebtedness without touching a single dollar of his investments, and leave him close to a million dollars’ profit.

One Tiedebohl, a lawyer, testified that on February 11, 1922, in the office of the receivership department, he had a conversation with Raymond J. Bischoff; that at that time the Central Trust Company had been appointed receiver and that bankruptcy proceedings were begun on February 11, 1922; that at that conversation Raymond J. Bischoff stated that he owed about $4,500,000 to about 4,000 different persons; that he had bought Y Oil & Gas Co. stock through various brokers for his own account, and paid various prices for it; that he had bought general listed stocks on the New York Stock Exchange on margin; that he stated on another occasion that he had lost $2,000,000 in Y Oil & Gas Co. stock. Upon motion for the defendants, his testimony as to what Raymond J. Bischoff said after the bankruptcy proceeding was stricken from the record.

Wilson, the cashier, testified that there was a demonstration at the offices somewhere around October, 1921, and that Davis said, “I have just received a telegram from Mr. Bischoff and the substance of it is to tell the men and the customers I have over $7,000,000.00 in assets, more than enough to pay off every obligation I owe.”

On February 11, 1922, bankruptcy proceedings were instituted. On the morning that that occurred, Zylius testified there was a crowd of persons present at the offices, and C. W. Bischoff stood on a table and addressed them. He said they were having trouble on account of the banks; that if the people would stick together with R. J. Bischoff & Co. and have money enough in case there are court proceedings to cover courts costs, they would never lose and the business would go on as before; that the banks were paying only a small per cent, and R. J. Bischoff & Co. was paying a large per cent, and so the banks were jealous and trying to destroy them.

The question arises whether the evidence sufficiently proves that the defendants were guilty of a conspiracy to obtain $2,000 from Butkiewiez, or $3,900 from Lokis, or $1,900 from Lauranaitis, or $2,100 from Alice Jankus by means of false pretenses, or by the confidence game. Considering the conduct of Raymond J. Bischoff, as shown above, he was evidently engaged in and furthered a gigantic swindle. There is no evidence that he owned anything of substantial value at any time. Seemingly, when practically penniless, he began in the stock market, in a small way, dealing on margins, and in a short time was exploiting oil properties. He got, in the aggregate, fabulous sums of money merely by making extravagant representations and giving promissory notes with a promise of unusual interest. To get the money, he hired so-called field agents, who went about among a class of people, apparently, easily impressed by suggestions of large and quick profits. At the same time, by what he said and by keeping concealed his accounts and the exact nature and quantity of his assets and liabilities, he succeeded even in deceiving those he employed, whether as field agents or in the office; so that the defendants themselves, who are charged with conspiracy, all except Geer, though his wife was a loser, became investors and, ultimately, losers. So effective were his machinations that on each of several days the amounts received- at his offices aggregated $200,000.

The first amount charged in the indictment as having been obtained by the alleged conspiracy is $2,000 from one Butkiewicz. He was, by trade, a tailor. He testified that sometime in 1920 he met Shaput, one of the defendants, who told him about the business and said that it sometimes paid 50 sometimes 100 per cent; that he then invested $100, and then later, $250, though whether he paid the money to Shaput or some one else he was not sure; that the first month he got 75 per cent on the $100; that then in two or three months he got 50 or 60 per cent; that he, also, did business in August, 1921, with one Dalkus; that on September 17, 1921, he gave a check to Dalkus for $2,000, and in five or six weeks got $200, and in a month, in the fall of 1921, got $420 more, but nothing thereafter; that he got from Dalkus a Bischoff note for $3,000; that he gave Dalkus $400 for 500 shares of the T Oil stock; that Dalkus told him that in a few months Bischoff was going to buy them back at $2 a share; that he, also, did business with Stankus, giving him $300 on specials; that Dalkus told him he had invested money in Bischoff’s; and, after the bankruptcy, Dalkus told him that he too had lost money in the business. Butkiewicz testified that he lost altogether over $3,000. Dalkus testified that he never solicited money from Butkiewicz, but did receive a $2,000 check and indorsed Butiewicz ’s name on it, and cashed it and turned the money in to B. J. Bischoff & Co. Shaput testified that in June, 1920, he explained to Butkiewicz the business of B. J. Bischoff & Co., and solicited him to invest; that Butkiewicz then gave him $250 to invest; that at that time he had invested $300 of his own money; that he did not tell Butkiewicz that he would get 75 per cent on his money.

The second amount alleged to have been obtained by the alleged conspiracy is $3,900 from Frank Lokis. He testified that he first heard of B. J. Bischoff & Co. through a janitor; that he dealt with the company for about nine months; that sometime in August, 1920, he went to the offices and talked with the defendant, Karbanski, and gave him $1,000; that Karbanski later brought him a receipt from the company; that after that investment Karbanski called on him and asked him to invest further; that he said they would make money; that he said they would pay 6 per cent and a good bonus; that the company’s business was in oil lands; that he invested ten or eleven times, a total of $3,907. Karbanski testified that Lokis first came to the office of E. J. Bischoff & Co. and asked him about the business, and invested $1,000, and later invested more; that he told Lokis about specials that Raymond J. Bischoff had told him, the witness, about. He further testified that he invested himself and lost $5,200, part of which he had saved from 25 years of work.

The third amount alleged to have been obtained by the alleged conspiracy is $1,900 from Francis Laurinaitis. He testified that he dealt with Matthew Venckus; that in 1921 he was taken to the offices of R. J. Bischoff & Co. and Venckus told him he was agent for Bischoff and that Bischoff had oil and gold mines and big farms, and that good interest would be paid, and he would get a guaranty; that he gave Venckus $1,000, then $500, then $400, and then $200; that he received $100 interest on the $1,000; $50 on the $500, and nothing further; that he never got back his $2,100; that Venckus spoke English, was an educated man; that he canvassed from house to house. Venckus did not testify.

The fourth amount alleged to have been obtained by the alleged conspiracy is $2,100 from Alice Jankus. She testified, partly through an interpreter, that she gave Tuskovski, who lived near her, four or five sums amounting to $900, for which she received four notes; that he told her it was partly for oil stock and partly for a special; that the money belonged to her and her husband. Tuskovski testified that he induced her to invest $900; that he invested, himself, and lost $7,000. Quite a volume of evidence was introduced tending to show various amounts of money which were obtained from persons other than the four above mentioned.

Considering the evidence as it pertains to Shaput, Dalkus, Karbanski and Tuskovski, does it show that they took part in the alleged conspiracy? We do not think it does. Shaput worked for B. J. Bischoff & Co. from April, 1920, to February, 1922, and his ultimate loss from investments he made in B. J. Bischoff & Co. was $7,000. Dalkus went to work for the company in September, 1921, as a door tender. In a short time, beginning before he went to work there, he made a number of investments in the company, which together amount to about $26,000. When he started to invest he had about $35,000 in bonds, mortgages and money. He made his last investment amounting to $19,000 in December, 1921. He was given notes representing his investment. He lost $16,000 and his sister, also, lost at least $3,000.

Karbanski started to work for Baymond J. Bischoif in March, 1920. He got $9,200 in notes and lost $5,500, having received $4,000 in dividends. The money he invested he had saved from 25 years of work. Considerable evidence was introduced in regard to large investments, amounting to about $41,000, that were made by Father Briszko, out of which he lost about $24,000. Also, evidence was introduced concerning representations made by Karbanski to him. It would extend this opinion too much, however, to set forth even a résumé of the evidence in regard to Father Briszko’s relations with the company. Suffice it to say, it does not show that Karbanski did more than exploit what he had been led to believe and on which belief he acted and relied in making investments himself.

Tuskovski worked for B. J. Bischoff & Co. He had formerly been a saloon keeper. He got $28.50 a week. He invested $7,000 and lost all of it. The last investment he made was in December, 1921, and was for $1,000. There is no evidence whatever that Shaput, Dalkus, Karbanski or Tuskovski conspired or took part in any conspiracy.

If a so-called agent invested his own money, and it be assumed honestly expected and believed it would make a profit, how can it be said that, when he persuaded a customer to make a similar investment, he expected and believed that that investment would not make money. The two states of mind are incompatible. If he obtained the money of the customer by making false representations, then when he invested his own money he must have been wittingly cheating himself. The only question then is whether, believing the representations they made to be reasonably true, true enough to justify investing themselves, they were guilty of false pretenses or the confidence game, because the actual truth as to the condition and business methods of Raymond J. Bischoff did not, according to known general economic principles, reasonably justify the making of the representations they acted on themselves when they made their own investments. Having no evil intent, but having insufficient knowledge of the truth, yet enough to inspire them to invest their own money, were their representations, which they believed to be true, a crime, as being part of a conspiracy to get money by false pretenses or a confidence game? We do not think so. Undoubtedly, Raymond J. Bischoff got money from all of them by false pretenses; but because each of the four above mentioned believed them and repeated them to others, did not make them conspirators. Each one might be liable in tort for making representations without having exercised ordinary care as to their truth, but not chargeable with a crime. Because each was the innocent tool of a criminal, they were not necessarily legally particeps criminis.

The evidence as to the conduct of Charles W. Bischoff, the brother, and Geer, the brother-in-law, is of a different quality. It may well be said to show beyond a reasonable doubt that they knew and participated in the gigantic swindle. From February, 3920, when Charles W. Bischoff came from Bock Island and went to work for his brother until bankruptcy, although he says that, after three months, he went back to selling insurance and into the real estate business, it is quite ■ obvious that he was part of and participated in the business of his brother. Their earliest business relationship is shown by having, as Charles W. Bischoff says, letterheads printed in the name of Bischoff & Bischoff. In January, 1921, he says he went to Kansas, at the request of his brother, to represent him as to certain oil property he had bought in Kansas. He apparently had charge of or advised his brother concerning oil properties. He took part in the early part of 1920 with his brother in a small stock deal. He received and helped entertain the company that went on the special train through the West and South, Walukas testified that on that trip Charles W. Bischoff said they had 80 oil wells; that it cost $1.00 a barrel and would sell for $4.00 a barrel; and that after they came back to Chicago, Charles W. Bischoff said to him, the witness, “I have got a good special, and you put on that special. Ton get about dollar to three dollars, you know”; and that he then invested $400. Father Briszko, who lost about $24,000, stated that in 1921 he had a talk with B. J. Bischoff, in his office, in the presence of Charles W. Bischoff; that he was introduced to the latter by his brother; that Charles W. Bischoff, on that occasion, told him of cerin the firm of B. J. Bischoff & Co. and that Bischoff & Co. and showed him, on maps on the walls, where they were in Louisiana, Kansas and other places; that he explained how many hundreds and thousands of barrels of oil they were getting every day; that he showed him a sample bottle of oil; that Baymond J. Bischoff was present during the whole conversation. Zylius, as set-forth above, stated that on the morning of the bankruptcy at the offices of R. J. Bischoff & Co., when there was a crowd of people present, as well as the office force, standing on a table in Raymond J. Bischoff’s private office, Charles W. Bischoff delivered a speech, telling them that they were having trouble on account of the banks, and that they should all stick together; that the banks were jealous because they only paid a small per cent and R. J. Bischoff & Co. paid a large one. Considering all the evidence, we do not feel that the verdict of the jury as to Charles W. Bischoff was erroneous.

The defendant, Earl Geer, married the sister of Raymond J. and Charles W. Bischoff in June, 1919. He had been in the army two years. He went to work for Raymond J. Bischoff in the spring of 1920. In the fall of that year he worked in the clerical department. He did make an investment in Y Oil & Gas Company stock. He claimed that he had no knowledge of the assets and liabilities of Raymond J. Bischoff, and that he believed in his solvency because he was successful in trading on the market. But there is evidence that he acted with more authority than a clerk and that he took part as a responsible executive. Geer not only took in money in the cage, but signed notes as attorney in fact for Raymond J. Bischoff. The evidence of Poska tends to show that Geer had considerable authority. Poska says that, when on the trip West, he had a talk with Raymond J. Bischoff in Geer’s presence in regard to Geer’s authority in the firm of R. J. Bischoff & Co. and that Bischoff said that Geer was manager and that everything that was said by Geer should be obeyed and carried out.

Darwin testified that in July or August, 1921, he talked with Raymond J. Bischoff while Geer was there; that Bischoff said, “Some time when I am not here in the office, Mr. Geer has got to do the same thing I do, what Mr. Geer says has got to be the same thing I say”; that he saw Geer sign several hundred notes “Raymond J. Bischoff by E. G. Geer, attorney in fact,” that he saw Geer at meetings of field agents, and, if Baymond J. Bischoff was not in the office, Geer would tell them about “specials.” There is considerable evidence on this subject. It would be out of place to recite it here in detail; but considering it carefully, we are impelled to the conclusion that the verdict of the jury as to Earl Geer is not erroneous.

It is contended that there is no proof of intent, motive, design or concerted action with knowledge of the facts, no pursuit of a common purpose. That contention is answered by what the court said in People v. Harrington, 310 Ill. 613. In that case three men were indicted on a charge of obtaining money by means of the confidence game. The court said: “The evidence of the People, standing uncontradicted in the record as it does, justifies the conclusion that plaintiffs in error conspired to obtain the money of persons unskilled in business methods and unfamiliar with American customs. Having joined in the common scheme, each of the co-conspirators was liable for the acts and representations of his associates.” In the instant case, Baymond J. Bischoff, Charles W. Bischoff, and Earl Geer were all taking a substantial and important part in the conduct of the business and, it is only reasonable to infer, from what the evidence shows, that they were together, by their joint efforts, knowingly obtaining money on a large scale from thousands of deluded and ignorant customers by false pretenses; in reality, by a form of confidence game, by cheating, by illegal methods that must, in all human' probability, to their knowledge, lead speedily to disaster and loss. It is a fraud to conceal fraud. By such concealment, one becomes, in the eye of the law, an accomplice. It was not necessary to show whether or how each of the three was to participate in the receipts. It was sufficient to show that they participated in the conduct, the overt acts, which constituted, considered as a whole, a conspiracy to obtain money by false pretenses or the confidence game.

In the Harrington case, supra, the court said:

“The returns which plaintiffs in error promised were many times larger than returns ordinarily expected from legitimate undertakings, and the natural inference to be drawn by any well-informed person would be that the proposition offered by plaintiffs in error was fraudulent. Plaintiffs in error represented to their customers that they had connections with Wall street and that they made these extraordinary returns by dealing in stocks and real estate. If these statements were true plaintiffs in error could have proven their truth. With nothing but the description of the scheme before them the jury were fully warranted in believing that the statements were false. The confidence game statute covers any scheme whereby a swindler wins the confidence of his victim and then swindles him of his money or property by taking advantage of the confidence fraudulently obtained. If the transaction is, in fact, a swindling operation, it is immaterial that the form assumed is that of a lawful business transaction.”

People v. Walinsky, 300 Ill. 92; Ochs v. People, 124 Ill. 399.

It is urged that the evidence did not show a conspiracy to defraud the four specific persons named in the indictment. We think it did, and was sufficient to justify the verdict. Lowell v. People, 229 Ill. 227. The case of People v. Mader, 313 Ill. 277, is not in point. There the court found that the proof did not make out a case of conspiracy as charged.

It is contended that it was error to permit evidence of other offenses than those specifically charged. But where the evidence of other offenses tends to show the intent and knowledge, as to the illegal act charged, on the part of the conspirators, it is competent. Considering the situation as it existed, it was not only important, but logically apt, to show what was done in regard to other persons, such as Father Briszko, who were not specifically named in the indictment as having been cheated. People v. Pouchot, 174 Ill. App. 1.

It is contended that the indictment charged four separate and distinct crimes, and that the motion of the defendants that the State elect as to which it would seek a conviction on should have been allowed. The crime charged was a misdemeanor and under the law it was a matter of reasonable discretion with the trial judge whether the motion should be allowed. Considering the nature of the case, we do not think the trial judge abused his discretion. Lamkin v. People, 94 Ill. 501; People v. Munday, 280 Ill. 32; Johnson v. People, 124 Ill. App. 213; People v. Curran, 286 Ill. 303. In the latter case the court said:

“It is claimed that the court erred in not requiring the People to elect upon which count or counts they would proceed. The conspiracies charged in the various counts were different parts of one conspiracy, and the right to demand an election does not apply in such a case.” Citing Andrews v. People, 117 Ill. 195.

It is contended that a certain instruction, which was given, was erroneous, but in People v. Strcmch, 240 Ill. 60, an instruction practically identical with the one here criticised was sanctioned, and Spies v. People, 122 Ill. 1, is cited in support of it.

After carefully considering all the evidence, and the law applicable thereto, we are of the opinion that the judgment as to Charles Bischoff must be affirmed.

Affirmed.

Thomson, P. J., and O’Connor, J. concur.


source: Caselaw Access Project

author: Mr. Justice Taylor

license: Public Domain

text:
    Thomas J. Hudson, for use of Albert Topp, Jr., Henry Topp and Konrad Topp, partners, Plaintiffs in Error, v. Hudson Motor Company of Illinois, Defendant in Error.
    Gen. No. 30,012.

      Garnishment — garnishee paying employee after service of process liable. Under Cahill’s St. 1925, eh. 62, If 13, garnishee on service of garnishment process could deduct indebtedness of employee to it and escape liability, but could not between the date of service of process and date of answer pay the employee his full salary and escape liability on the ground that the employee was indebted to it in an amount in excess of the salary paid.
    Error by plaintiffs to the Circuit Court of Cook county; the Hon. David M. Brothers, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Reversed and judgment here.
    Opinion filed October 28, 1925.
    B. M. Shaffner, for plaintiffs in error.
    Little, Gordon, Adams & King, for defendant in error; George W. Gordon and William H. King, Jr., of counsel.
   Mr. Justice Taylor

delivered the opinion of the court.

Albert, Henry and Konrad Topp, having recovered judgment in the circuit court for $622.30 and costs against Thomas J. Hudson, and an execution thereon having been returned, no property found, an affidavit for a garnishee summons was filed in the name of Thomas J. Hudson, for the use of Albert, Henry and Konrad Topp, which charged that the Hudson Motor Company, the garnishee, was indebted to the defendant. A garnishee summons was served on the garnishee on April 20, 1922. On May 15, 1922, the garnishee entered its appearance, and on May 16, 1922, filed its answer.

The answer set up that on April 20, 1922, it had no money, rights, credits or effects owed or due to Hudson; that on that date it was not indebted to him, nor did it have in its t possession any property or rights belonging to him; that it did not have in its possession any credits dne and owing to him at the date of the service of the writ or at any time since, or which might become dne, except as stated in its answer to the 5th interrogatory. That answer is as follows:

" On the first day of May, 1922, there became due and payable from this garnishee to said Thomas J. Hudson, Jr., the sum of $208.33 for salary for the half month ending on said date, and on May 15,1922, there became due from this garnishee to said Thomas J. Hudson, Jr., the further sum of $208.33 as salary for the half month ending on said date. Said Thomas J. Hudson, Jr., was at the time of the service of said writ and prior thereto indebted to this garnishee in the sum of $859.98 for moneys advanced by this garnishee to said Thomas J. Hudson, Jr., and this garnishee claims that the said moneys which became due from it to said Thomas J. Hudson, Jr., on said first and fifteenth days of May, 1922, as aforesaid, should be applied upon said indebtedness of Thomas J. Hudson, Jr., to this garnishee. This garnishee further answering says that on the first day of May, 1922, it paid or advanced to said Thomas J. Hudson, Jr., the sum of $208.33.”

The answer further stated that Hudson was still employed by the garnishee upon a “salary payable semimonthly. ’ ’ On February 27,1924, a traverse was filed.

On March 17, 1924, pursuant to leave obtained, the garnishee amended its answer by adding the following allegation: “That at the time of this said answer, said garnishee defendant has no money, rights, credits or effects owed or due to the said Thomas J. Hudson, Jr.”

On March 24, 1924, there was a trial before the court without a jury, and a finding and judgment in favor of the garnishee. This writ of error is prosecuted to reverse that judgment.

The evidence consists of the testimony of one Ferguson, accounting manager for the garnishee, and two exhibits, being copies of entries in the books of the garnishee. It shows that Hudson, the judgment debtor, was retail sales manager of the garnishee and had been, at least, since November 1, 1921, and that his salary from April 1, 1922, was $416.66 a month and was paid to him in sums of $208.33 on the first and fifteenth of each month. One of the exhibits showed, between November 1, 1921, and April 29, 1922, eight items of debit and five items of credit, and a balance due from Hudson to the garnishee of $859.98.

The other exhibits showed that between April 1, 1922, and February 28, 1923, the garnishee had paid Hudson his salary of $208.33 each fifteen days from April 1 to May 31, 1922, at the rate of $208.33, and had paid Hudson his salary at an increased rate of $250, each fifteen days from June 1, 1922 to December 31, 1922, and from January 1, 1923 to Februarv 28, 1923, at $312.50.

The argument of the garnishee is that while the payments of salary were made, or paid, or advanced to Hudson, he all the time was and remained its debtor, and that when each payment was made to him, he still was a debtor of the garnishee, and so at no time was there anything due from it to the judgment debtor.

The record, however, does not seem to support that contention. The memorandum, which was furnished at the trial by the garnishee, and which Ferguson, the accounting manager, said was correct, is entitled, “Salary paid to T. J. Hudson, Jr., for a period 4/1/1922 to 2/28/1923,” and then itemizes 22 semi-monthly payments of salary to Hudson within that time. It is true that Ferguson tries to have it understood that each of those payments was an advancement and not an out and out payment. But his own books confute him. Ferguson said, " He was advanced the money on his salary; he was not paid any money on the 15th of April. ’ ’ That, however, is evidently but subterfuge. In answer to the question on what days were wages or salary paid, he answered, “On the 1st and 15th of the month,” and when asked, “and in April, 1922 — he was paid at the end of every two weeks,” he answered, “Yes, sir.” Neither the memoranda from the garnishee’s hooks nor the testimony of the accounting manager justify any other reasonable deduction than that, notwithstanding, Hudson may have remained on the books of the garnishee a debtor in the sum of $859.98, the garnishee continued regularly, from April 15, 1.922, to February 28, 1923, to pay him every two weeks the amount of his salary, qua salary, as salary already earned, and not as an advancement, and that between April 15, 1922, and February 28, 1923, the garnishee paid Hudson, the judgment debtor, $5,583.32 as salary. Under the law, that it could not do, without being subject to the obligation created by the Garnishment Act.

Under section 13, eh. 62, of the Garnishment Act (Cahill’s St. 1925, ch. 62, ¶ 13), the garnishee had the right, upon service of garnishment process, to deduct from Hudson’s salary, as it was or came due, what he owed, but it could not refrain from adjusting the account and go on paying his salary for years, and so, simply by so doing, evade and avoid its statutory obligation. Paisley v. Park Fireproof Storaqe Co., 222 Ill. App. 96.

In support of its contention, the defendant cites the following cases: Chicago & E. I. R. Co. v. Blagden, 33 Ill. App. 254; Hoffman v. Fitswilliam & Sons, 81 Ill. 521; Holmberg v. General Electric Co., 211 Ill. App. 301, and Wilt v. Hartman Trunk Co., 215 Ill. App. 182.

In the Blagden case, no evidence was produced, and the answer denied the indebtedness, and the court there said, that where judgment is demanded upon the answer, it must clearly appear therefrom that the garnishee is chargeable or he will be discharged. It is true that in that case the court goes on to intimate that the employer might legally loan or advance the money to its employee, the judgment debtor, or have an understanding or agreement that he would pay in services thereafter to he rendered, and so escape the application of the Garnishment Act. In the instant case, however, it is our judgment that the evidence does not show that the garnishee loaned or advanced money thus, but that it does show that the garnishee simply paid Hudson his salary semi-monthly after it was earned.

In the Hoffman case, it was held that as the judgment debtor’s wages were less than the sum exempt by the statute and were earned subsequent to the garnishment, the garnishee was justified in paying them and was not liable to the creditors.

In the General Electric Co. case, there was an agreement that the judgment debtor’s salary was to be paid semi-monthly in advance, and the court, undertaking to apply the reasoning in the Blagden case, decided in favor of the garnishee.

In the Hartman Trunk Co. case, the evidence showed that there was an agreement between the garnishee and the judgment debtor that the wages of the latter should be paid in advance, and so the court held that the garnishee was immune, citing the Blagden case. It would seem, therefore, that none of the cases cited is in point here. In our judgment, the evidence shows that Hudson was paid his salary after it was earned.

In Paisley v. Park Fireproof Storage Co., 222 Ill. App. 96, the judgment debtor Paisley, at the time of the service of the garnishment summons, was indebted to the garnishee upon a demand note, which was already due, and the evidence showed that the garnishee had paid Paisley, the judgment debtor, $41 on May 11, 1920, and $41 on May 18, 1920, both payments being after the service of the garnishee summons. In the opinion in that case the court said: “We are of the opinion that upon service of garnishment process the garnishee had the right to adjust the account between itself and the judgment debtor and apply the amount due Paisley for salary on his note of $300, in conformity with the provision of the statute. * * * The garnishee, however, did not see fit to do so, hut after service of garnishment process paid Paisley $82, and in so doing admitted an indebtedness to that amount. Wilcus v. Kling, 87 Ill. 107.”

It follows, therefore, in our judgment, that as the garnishee paid after April 20, 1922, the date of the service of the writ and prior to the date of the answer, the sum of $416.33, the plaintiff is entitled to judgment against the garnishee in that amount. Pressed Steel Equipment Co. v. Thornburgh Pressteel Co., 228 Ill. App. 1; Hanover Fire Ins. Co. v. Connor, 20 Ill. App. 297; First Nat. Bank of Knightstown v. Hosier, 234 Ill. App. 605. As to the item of $88.91, credited to Hudson as of April 29, 1922, on the books of the garnishee, the evidence fails sufficiently to show what it was for or in any way its history.

The judgment will be reversed and judgment entered here in favor of the plaintiff and against the defendant, Hudson Motor Company of Illinois, in the sum of $416.33.

Reversed and judgment here.

Thomson, P. J., and O’Connor, J., concur.


author: Mr. Presiding Justice Thomson

text:
    Marie Peck, Appellee, v. Joseph J. Peck, Ella H. Krause and Bernard W. Snow, Bailiff of the Municipal Court of Chicago. Ella H. Krause, Appellant.
    1. Appeal and eebob — order overruling demurrer not appealable. An order overruling a demurrer was not a final order and was not appealable.
    2. Injunctions — one with equitable right could restrain enforcement of forcible entry and detainer order. Where husband left wife and rented premises used by wife as homestead and lessee brought forcible entry and detainer proceedings, the wife, though she might interpose her homestead right as a legal defense, under Cahill’s St. ch. 68, If 16, was nevertheless entitled to maintain a bill in equity to restrain enforcement of the judgment in the forcible entry and detainer proceedings on the ground that the lease was not a bona fide one, but a pretended one, executed by the husband solely for the purpose of dispossessing her, a matter which could not be set up in the forcible entry and detainer proceeding.
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. William V. Bbothebs, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1925. Appeal from order overruling demurrer dismissed.
    Order granting temporary injunction affirmed.
    Opinion filed November 4, 1925.
    George McMahon, for appellant.
    A. J. Bedard, for appellee.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.

The complainant filed a hill for separate maintenance against her husband, the defendant Joseph J. Peck. In this bill she alleged that her husband was the owner of certain premises, in the first floor of which they had resided since their marriage and in which they were living when she alleged her husband deserted her. The complainant claimed a right of homestead in these premises.

It appears from further allegations in the bill of complaint that the complainant had filed a similar bill against her husband about six months prior to the filing of the bill in the suit at bar, and that such prior suit had been dismissed, and later had been reinstated and then had been dismissed again, for want of prosecution.

It is further set forth by the complainant in the bill filed by her in.the suit at bar that shortly after her prior suit had been dismissed, her husband purported to have executed a lease of the premises, in which she was living, to one Ella H. Krause, and the latter, being unable to secure possession, filed forcible entry and detainer proceedings against complainant in the municipal court of Chicago, based on such written lease; that at such hearing the complainant, Marie Peck, claimed a right of homestead in the premises, but the court rendered a judgment for possession in favor of the plaintiff in that case, from which the complainant, Marie Peck, prayed and was allowed an appeal; and that complainant filed a number of appeal bonds, each of which, after being filed, was stricken on the motion of the plaintiff in that case. In her bill of complaint the complainant then proceeded to allege that she “being without any property to indemnify surety companies and being unable to secure acceptable sureties was forced to abandon her appeal” and that she presented a transcript of the proceedings in that case to the court, and it was marked “accepted” and that she afterward presented it to plaintiff’s attorney for his approval and that he still retained it and had refused to return it. Complainant further alleged that her husband had entered into the lease with Ella H. Krause on the day following the dismissal of complainant’s former suit for separate maintenance, and that “said lease is a pretended one and is solely for the purpose of evicting” complainant and depriving her of her domicile and homestead. She further alleged that she had requested her husband and Ella H. Krause and Bernard W. Snow, bailiff of the municipal court, to desist from proceeding under the judgment for possession, but that they had not complied with her request and she feared that, unless restrained, they would evict her from the premises. Complainant therefore made Ella H. Krause and Bernard W. Snow parties defendant to her suit and prayed that they be restrained and enjoined from enforcing the judgment for possession which had been obtained by Ella H. Krause in the municipal court.

The defendant, Ella H. Krause, filed a demurrer to the bill arid the court overruled the demurrer. She elected to stand by her demurrer and prayed an appeal from the order overruling her demurrer, which was allowed. A temporary restraining order was entered as prayed by complainant, and the defendant also prayed an appeal from that order, and that appeal was likewise allowed. She filed an appeal bond purporting to cover both appeals and it was duly approved.

The order overruling the demurrer was not a final order and was not appealable. The appeal from that order will be dismissed.

In our opinion, the chancellor was warranted in entering the restraining order appealed from. Complainant admits that a bill will not lie to enjoin the enforcement of a judgment for possession in a forcible entry and detainer proceeding, where the complainant has no right in the premises which could not be set up by way of defense in that proceeding, but her contention is that in the case at bar the complainant had an equitable claim to or right in the premises which she could not interpose in the forcible entry and detainer proceeding and which she should, therefore, be permitted to raise by means of this bill in equity. In this connection our attention is called to section 16 of chapter 68 of our Statutes [Cahill’s St. ch. 68, [f 16] and to the case of Jones v. Jones, 281 Ill. 595. The statute referred to provides that, “Neither the husband nor wife can remove the other * * * from their homestead without the consent of the other, unless the owner of the property shall in good faith, provide another homestead suitable to the condition in life of the family * * * .” It is further provided by section 2 of chapter 52 of the Illinois Statutes [Cahill’s St. ch. 52, [f 2], that the exemption of the homestead estate, in case the husband or wife shall desert his or her family, shall continue in favor of the one occupying the premises as a residence. In the Jones case, supra, one Jones, who was a widower, was living in premises, to which he held the legal title, with his married daughter who had contributed in part to their purchase. He became engaged to marry the complainant. The latter knew the title to the property in which her future husband was living was in him. She also knew the daughter had contributed in part to the purchase of the property. Prior to the marriage and unknown to the complainant, Jones conveyed title to the property to his daughter without consideration. After the marriage, complainant and her husband occupied the premises as their home, together with the daughter and her husband. Subsequently the daughter and her husband removed to another home. Jones then abandoned his wife and went to live at a hotel, leaving his wife in possession of the premises. Later the daughter of Jones brought forcible entry and detainer proceedings against her stepmother and secured a judgment for possession and the latter then vacated the premises and went to the hotel where Jones had been living, and thereafter lived there with him. Several months later Mrs. Jones filed a bill in equity, seeking to have the deed from her husband to his daughter set aside as to her, to have the premises decreed to be a homestead as well as to be subject to her inchoate right of dower, and asking to be restored to the possession of the premises. It was held that by her marriage and residence upon the premises complainant had acquired the right to occupy them as a homestead, and that her husband could not deprive her of that right without her consent; that Jones had deserted his wife and left her in the place where she had the right to remain and the statutory provision for continuing the homestead exemption as to her was complete. The court further held that the deed from Jones to his daughter was void as to his wife but that on its face it was valid, “and therefore in a forcible entry and detainer suit the daughter was entitled to recover, and did recover, a judgment for possession. The equitable right of the appellant (wife) to have the deed set aside could not be tried in a forcible entry and detainer suit. She had no legal defense to that proceeding, but in this proceeding her rights in equity can be enforced regardless of the legal title and of the judgment in forcible entry and detainer based on that title.”

In our opinion, the case above referred to is in point. The lease executed by the defendant, Joseph J. Peck, to the defendant, Ella II. Krause, was a valid lease on its face, and, therefore, in the forcible entry and detainer suit Mrs. Krause, on the lease, by itself, would be entitled to possession. It may be that complainant in the suit at bar had a legal defense to that suit, which could be made out by showing such facts as would establish her right to a homestead in and continued possession of the property, under the statutory provisions above referred to, until her husband had established another suitable homestead for her. But she also had an equitable defense to the forcible entry and detainer suit which she was powerless to interpose in the municipal court, namely, as alleged by her in her bill, that her husband had entered into this lease on the day following the dismissal of her former bill for separate maintenance, and that the lease was not a bona fide one, but “a pretended one” which he had executed solely for the purpose of dispossessing her. That allegation made by the complainant in her bill amounts to a charge of fraud and collusion on the part of her husband and Ella H. Krause, and if complainant is able to establish those allegations by her proof, she would be entitled to have the same relief that the complainant recovered in the Jones case, supra, namely, have the lease set aside as to her.

For the reasons stated the appeal from the order overruling the demurrer filed by Ella H. Krause is dismissed, and the order granting a temporary injunction is affirmed.

Appeal from order overruling demurrer dismissed.

Order granting temporary injunction affirmed.

Taylor and O'Connor, JJ., concur.


author: Mr. Justice Gridley

text:
    Chicago City Railway Company, Appellee, v. City of Chicago, Appellant.
    Gen. No. 29,568.
    1. Appeal and error — when constitutional questions not involved in appeal to Appellate Court. The construction of sections 2 and 13 (relating to the taking of property without due process of law and without due compensation) and of section 4 (relating to the impairment of contracts), of article 2 of the Illinois Constitution and of the 14th Amendment of the Federal Constitution, relating to the taking of property without due process, was held not to be involved in an action by a street railway company against a city to recover for money expended in repairing street pavements which had been removed by the city in installing or repairing sewer pipes, where ordinances required the company to repair pavements; and hence the motion to dismiss the appeal and transfer the case to the Supreme Court was denied.
    2. Street railways — liability of city to reimburse street railway company for cost of repairing pavements. Under ordinances of a city requiring a street railway company, at its own expense, to pave and keep in repair the portions of the streets occupied by it, the expense incurred by the company in repairing and restoring pavements removed by the city to install or repair, sewer pipes for the benefit of users whose houses fronted on the streets occupied by the street railway right of way, could not be recovered in an action against such city.
    3. Street railways — power of city to impose conditions for use of street by street railway company. A city having the exclusive authority to grant or refuse permission to a railroad company to lay tracks upon or cross streets within the city limits, in granting such permission may impose such reasonable limitations and restrictions as it sees fit, such as, by ordinance, requiring the company to fill, grade, pave and otherwise improve the portion of the street occupied by its tracks and between them.
    4. Street railways — voluntariness of repairing of pavements by street railway company as affecting liability of city for reimbursement. The claimed liability of a city to reimburse a street railway company for the expense of repairing and replacing the pavement removed by the city in installing or repairing sewer pipes was not affected by the fact that the replacements and repairs in question were made by the company without any order given by the Commissioner of Public Works and without the approval of the Board of Supervising Engineers, where such repairs were made voluntarily by the company to protect its property and itself from possible damage suits.

      5. Street railways — construction ordinance requiring street railway company to “repair” streets. The word “repair” in an ordinance requiring a street railway company to repair the pavement of streets occupied by its tracks is synonymous with "restore.”
    Appeal by defendant from the Circuit Court of Cook county; the Hon. Oscar M. Torrison, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1924.
    Reversed and remanded with directions.
    Opinion filed November 13, 1925.
    Francis X. Busch, Corporation Counsel, for appellant; James J. Coughlin, C. Morton Doty and James I. McCarthy, Asst. Corporation Counsels, of counsel.
    John R. Guilliams and Church, Haft & Robertson, for appellee; Charles M. Haft, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

This is an appeal from a judgment for $14,676.46, rendered by the circuit court of Cook county July 22, 1924, against the defendant, City of Chicago. The judgment was entered after the city’s demurrer to plaintiff’s last amended declaration had been overruled in part and the city had elected to stand by the demurrer.

The action was commenced in tort on February 15, 1921, but was afterwards changed to assumpsit. The plaintiff railway company sought to recover various amounts expended by it from time to time since March, 1914, in replacing or repairing portions of the pavement in its right of way in various streets, where the pavement had been removed or damaged by employees of the city in laying certain connecting water or sewer pipes. The city’s demurrer was sustained (without objection by plaintiff) as to all expenditures made more than five years prior to the commencement of the action, but was overruled in all other respects. The parties had stipulated that the city could avail itself of the defense of the statute of limitations on demurrer and without special plea, and without waiving its other causes of demurrer. There was no dispute between the parties as to whether the expenditures had been made as alleged or as to the reasonableness of the same. The city contended on the hearing of the demurrer, and here contends, (1) that the last amended declaration failed to state facts showing a legal liability on its part to reimburse plaintiff for any of said expenditures, in that the city ordinances of February 11,1907 and November 13,1913 (attached to the declaration and made parts thereof), imposed on plaintiff the duty to do, at its expense, the work for which it seeks to charge the city; and (2) that, even though the court should hold against this proposition, the demurrer should nevertheless be sustained as to all expenditures made more than five years prior to the filing of plaintiff’s last amended declaration, because that declaration in assumpsit (filed nunc pro time as of July 10, 1924) presented a different cause of action from the original declaration in tort.

Plaintiff’s amended declaration in tort, filed July 20, 1922, consisted of two counts, one relating to expenditures made by it after employees of the city had laid certain connecting water pipes and the other relating to expenditures made after connecting sewer pipes had been laid. Attached to the declaration as exhibits, and made parts of it, were the two city ordinances and two itemized schedules of expenditures made by plaintiff, one showing items caused by the laying of various water pipes and the other by the laying of sewer pipes. It was stipulated that all these exhibits should be considered as parts of plaintiff’s last amended declaration.

In the first count of the last amended declaration it is alleged that both ordinances were accepted and had been complied with by plaintiff; that by the ordinance of 1907 authority was granted to plaintiff, its lessees and assigns to construct and operate its system of street railways in numerous streets of the city, its duties, obligations and liabilities to the city being therein enumerated; that in section 15 thereof it is provided that plaintiff (called the Company) “shall, at its own expense, fill, grade, pave and keep in repair that portion of the streets occupied by it, as more specifically provided for in said ‘Exhibit B’ and that in said Exhibit B, attached to the ordinance, the entire subject of maintenance of streets and pavements is treated and provided for, as follows (in part):

“The Company as respects filling, paving, grading, keeping in repair, * * * , or otherwise improving the streets or parts of streets occupied by its railway, shall fill, grade, pave, keep in repair * * * eight (8) feet in width of all streets and public ways, or portions thereof, occupied by it with a single track railway, and sixteen (16) feet in width of all streets and public ways, or portions thereof, occupied by it with a double track railway. * * *
“The Company, upon the order of the Commissioner of Public Works and approval of the Board of Supervising Engineers, shall pave, repave, or repair the portions of the streets and public ways, which by this grant it is required to keep paved and in repair, whenever and as often as the same shall reasonably require paving, repaving or repairing, and shall at all times keep the surface of all of its paving at least up to the top of the rail.
“The pavement which the Company shall be required to lay down and keep in repair in the portion of any street or way * * * shall be of the following kinds, to-wit:
‘ ‘ First — in all streets or ways in which the Company has in place, at the date of the passage of this ordinance, a good serviceable pavement, it shall repair and maintain the same while serviceable under the direction of the Commissioner of Public Works, as aforesaid.
“Second — Whenever any existing pavement of the Company, in any paved street or way, can no longer be made serviceable by repair; and whenever the portions of any street or public way outside of the strip herein required to be paved by the Company are newly paved or repaved, with asphalt, granite, brick, creosoted block, or other similar material, as aforesaid, and the pavement therein of the Company does not comply with the following specifications; and whenever the Company relays its rails in any such paved street or public way in which its pavement does not comply with the following specifications, then, and in any of such events, the Company shall pave or repave the portion of any such street or public way * * * with granite paving blocks. (Here follow detailed specifications.)
“Third — Whenever any existing pavement of the Company, in any unpaved street or public way, can no longer be made serviceable by repairs; and whenever the Company lays down any track or tracks in any unpaved street or public way, then, and in either of such events, the Company shall pave or repave the portions of any such street or public way * * * with good serviceable granite blocks. * * *”

It is further alleged that the Commissioner of Public Works has at no time ordered plaintiff to do any of the work in this count mentioned, nor has the Board of Supervising Engineers at any time approved any such order of the commissioner; that plaintiff did not construct or reconstruct any portion of its tracks, equipment or roadbed in any of the streets, as shown in the schedule attached, before sewer and water pipes were laid therein or before said streets were paved, and that “it is only the small sewer and water pipes connecting said main sewer and water pipes (running parallel with said tracks) with the property abutting upon said street that are constructed at right angles to the tracks of the plaintiff”; that the city, “in its private as distinguished from its governmental capacity,” maintains ¡and operates a system of water works and mains from which it sells water to private consumers; that, while acting in such capacity, it has on numerous occasions and at numerous places constructed water pipes intersecting plaintiff’s tracks, roadbed and right of way in said streets, as shown in the attached schedule, and in so doing has tom up the roadbed and pavement, placed by plaintiff in its right of way in said streets, all of which were theretofore in good repair and condition, and has also dug trenches along said street car tracks, placing therein water pipes; that although the city has refilled the portion of the trenches lying outside of plaintiff’s right of way, and has restored the pavement over the same, yet the city, in violation of sections 2, 13, and 14 of article 2 of the Illinois Constitution and the 14th amendment of the U. S. Constitution “negligently and wilfully refrained from filling up the portion, of the trenches within the right of way of plaintiff, and likewise neglected to restore the concrete and other foundations of the plaintiff, together with the pavement thereon, all of which it was the duty of the City to restore, thereby leaving the said portions of each of said streets within plaintiff’s right of way * * * in a dangerous condition”; that by reason thereof plaintiff, in order to protect the safety of those having occasion to travel along said several streets, and in order to protect itself from damages and to protect its own property, expended large sums of money, to wit, $15,611.02 in restoring said foundations and pavements, as shown in the schedule attached; that by reason of the premises it became the city’s duty to replace said several roadbeds and pavements, or, failing so to do, to pay to plaintiff the amounts expended by it in so replacing the same; yet the city has wholly failed to pay to plaintiff said amounts, to its damage, etc.

The second count is substantially the same as the first, except that it declares on items of expenditures made by it in refilling and repaving openings in the several streets in connection with the installation and repair of sewer pipes,- which work was done in its governmental capacity. The amount of damages claimed in this count is $4,982.53.

After the present transcript was filed in this Appellate Court, plaintiff moved that the appeal be dismissed and the cause transferred to the Supreme Court on the grounds that the construction of sections 2, 13 and 14 of article 2 of the Illinois Constitution and of the 14th amendment of the Federal Constitution was involved. The motion was reserved to the hearing, and it will now be denied. Under the allegations of plaintiff’s last amended declaration we do not think that the construction of said sections of the constitutions is involved. (City of Dawson v. Columbia Ave. etc., Trust Co., 197 U. S. 178, 181; Shawnee Sewerage & Drainage Co. v. Stearns, 220 U. S. 462, 471; McCormick, v. Oklahoma City, 236 U. S. 657, 660.) The declaration discloses that plaintiff is seeking to recover damages for the alleged breach of a constructive or implied contract, and the sole question on this appeal is, as it seems to us, whether the trial court, in overruling the city’s demurrer and entering the judgment in plaintiff’s favor, correctly construed certain provisions of the city ordinances of 1907 and 1913.

Plaintiff does not allege that the particular portions of the pavements in the various streets were wrongfully removed. Its position is that under the ordinances it is not required to replace or repair at its expense pavements in its right of way which are removed by the city, in order that certain water and sewer pipes connecting with the main pipes of its water and sewer systems may be installed or repaired for the benefit of customers or users whose houses front on the several streets, and that when it paid the expenses of the replacements or repairs in question it did so on the city’s behalf, rendering the city liable to it for said expenses on the theory of an implied contract. The city’s position on the contrary is that the ordinance definitely and positively makes it the duty of the plaintiff company to make all replacements or repairs of pavements in the right of way, including those made necessary solely by acts of the city in installing or repairing water or sewer pipes. In section 15 of the ordinance of 1907 it is provided that the plaintiff company “shall, at its own expense, fill, grade, pave and keep in repair” the portions of the streets occupied by it, as more specifically provided in a certain attached exhibit. And in the exhibit it is provided that the Company, upon order of the Commissioner of Public Works and approval of the Board of Supervising Engineers, “shall pave, repave or repair” the portions of the streets and public ways which by this grant it is required to keep paved and in repair, “whenever and as often as the same shall reasonably require paving, repaving or repairing,” etc. The language used in the section of the ordinance and in the exhibit is clear and unambiguous, and we find no limitations in either relating to the cause or condition necessitating the repaving or repairing. And in our opinion the provisions are not unreasonable. And a city, having the exclusive authority to grant or refuse permission to a railway company to lay tracks upon or across streets within the city limits, in granting such permission may impose such reasonable limitations and restrictions as it sees fit (Chicago Terminal Transfer R. Co. v. City of Chicago, 220 Ill. 310); such as, by ordinance, requiring the company to fill, grade, pave and otherwise improve the portion of the street occupied by its tracks and between them. (West Chicago St. Ry. Co. v. City of Chicago, 178 Ill. 339.) Plaintiff’s declaration attempted to make a distinction between those items of expense claimed to have been incurred in the replacement or repair of pavements removed or damaged by the city to facilitate the installation or repair of water pipes and that of sewer pipes, — in the one case claiming that the city acted in its private or corporate capacity and in the other in its governmental capacity. The action being in assumpsit wherein plaintiff seeks damages for the alleged breach of a constructive or implied contract, we do not think the attempted distinction has any bearing on the city’s liability or nonliability. Nor do we think that the city’s claimed liability is in anywise affected by the fact, as alleged, that the replacements and repairs were made by plaintiff without any order given by the Commissioner of Public Works and ■without the approval of the Board of Supervising Engineers. It appears from the allegations that the replacements and repairs were made voluntarily by plaintiff, and to protect its property and itself from possible damage suits. On the main question involved the case of City of New York v. Whitridge, 227 N. Y. 180, decided in October, 1919, is in point. The Court of Appeals in that case reversed judgments rendered against the city by the trial court (177 N. Y. Supp. 122) and by the appellate division thereof (173 N. Y. Supp. 903.) From the opinion of the trial court the following facts appear: The defendant receiver operated a street railway line on a certain street under which the city maintained a sewer. Portions of the sewer collapsed and were in urgent need of alteration and repair, and the city let a contract for the work. In order to properly do it, it was necessary to remove part of the pavement within the rails, and two feet in width outside thereof, of the railway line. Upon notice by the city to remove the pavement the receiver refused, and the city removed it. After the completion of the work the receiver was notified to restore the pavement within said area, but on his refusal the city made the restoration, and afterwards commenced the action to recover the expense of the removal and restoration of the pavement. The receiver demurred to the complaint and the trial court sustained the demurrer and entered judgment against the city for costs, which action subsequently was sustained by the appellate division. The city appealed to the Court of Appeals, where the orders were reversed, and the demurrer was ordered overruled with leave to the receiver to answer. It is said in the opinion of the Court of Appeals (p. 182):

“The only question argued on this appeal is whether the city, after having removed a street pavement in order to make a sewer improvement, may under the provisions of section 178 of the Railroad Law (Cons. Laws, ch. 49) require the defendant street railroad to restore the pavement between its tracks and for a space of two feet outside thereof. The language of the statute is broad:

“ ‘Every street surface railroad corporation, so long as it shall continue to use or maintain any of its tracks in any street * * * shall have and keep in permanent repair that portion of such street * * * between its tracks, the rails of its tracks, and two feet in width outside of its tracks, under the supervision of the proper local authorities, and whenever required by them to do so, and in such manner as they may prescribe. In,, case of the neglect of any corporation to make pavements or repairs after the expiration of 20 days’ notice to do so, the local authorities may make the same at the expense of such corporation, * * *.’
“It has been held repeatedly that the local authorities are vested with the power to determine when and how the repairs should be made at the expense of the street railroad corporation, even to the extent of requiring a new pavement to be laid. * * * ‘The duty of keeping such portion of the streets in permanent repair (by the railroad company) * * * is commanded.’ (Conway v. City of Rochester, 157 N. Y. 33, 38.) It is a duty imposed for the pecuniary benefit of the municipality. No exemption from any burden of repavement is suggested by the language of the statute as thus construed.
‘ ‘ The courts below have reached the conclusion that the statute should now be read with a proviso to the effect that the duty of repaving is limited to the restoration of pavements following surface improvements and that it has no application to the necessary restoration of the pavement following a sewer improvement. Much might be said on the policy of thus limiting the application of the statute, but the argument directs itself to the legislature rather than the court. * * * The legislative intent is found in the legislative language which, as this court has had occasion to say, unqualifiedly commands. The duty is not dependent upon conditions that the railroad creates, such as the interference with the surface of the highway due to the presence of the railroad tracks in the street.”

We think that the reasoning and holdings in this New York case are applicable to the present controversy. The New York statute is very similar to the provisions of the ordinances in question in the present case. Counsel for plaintiff contend in substance that the obligations imposed on the plaintiff company by the portions of the ordinances pleaded do not include the “restoration” of pavements. He attempts to draw a distinction between the words “restore,” and “repair,” but they are synonymous. (State v. Gibson County Com’rs, 80 Ind. 478,. 481.) The Century Dictionary defines the word “repair” as “ To restore to a sound,- good or complete state after decay, injury, dilapidation, or partial destruction; restore; renovate.” In Callender v. Marsh, 1 Pick. (Mass.) 418, 428, the word “repair,” as used in a statute in reference to certain highways being kept in repair, is defined to mean “to replace or remake, reficere, to restore what has been impaired or injured. ’ ’

We are of the opinion, in view of the provisions of the ordinances of the City of Chicago of 1907 and 1913, made parts of plaintiff’s last amended declaration, and the facts alleged, that said declaration failed to state a good cause of action against the city, and that the circuit court erred in overruling the city’s demurrer thereto, and, after the city had elected to stand by its demurrer, in entering the judgment appealed from. Because of these holdings it is unnecessary for us to consider the second contention, above mentioned, of counsel for the city. Accordingly the judgment will be reversed and the cause remanded to the circuit court with directions to sustain the city’s demurrer to plaintiff’s declaration and to dismiss plaintiff’s action.

Reversed cmd remanded with directions,

Fitch, P. J., and Barnes, J., concur.