text:
    Charles F. Barnett, Administrator of the Estate of Lewis L. Hudnall, Deceased, Appellee, v. Brotherhood of Railroad Trainmen, Appellant.
    Gen. No. 31,240.
    1. Fraternal associations — who may be beneficiary. A person not of a class for whose benefit a mutual benefit association is organized cannot be a beneficiary thereunder.
    2. Fraternal associations — reversion of certificate on death of member failing to designate qualified beneficiary. Where a benefit certificate providing for payment, on the death of the member, of the amount stated in the constitution of the association to one named in such certificate as the wife of such member, if then living, and, if not, then to his administrator, was issued upon such member’s designation of that person as his wife, but she was not then or thereafter his wife and he died unmarried, no rights under such certificate accrued to his administrator, the agreement between the association and the member providing that if the member designated as his beneficiary any other than one permitted by the constitution, the certificate should revert to the association, and the designated beneficiary not being one of the permitted class.
    3. Fraternal associations — validity of agreement for reversion of eertifieate on death of member failing to name qualified beneficiary. A provision of ^a mutual benefit association certificate that in the event the member to whom it is issued shall have designated as beneficiary thereunder one not of the class of persons permitted to be beneficiaries under the constitution of the association, such certificate, on the death of the member, shall revert to and become the property of the association, held not unenforceable as contrary to public policy.
    Appeal by defendant from the Superior Court of Cook county; the Hon. George A. Sentel, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1926.
    Reversed with findings of fact.
    Opinion filed February 1, 1927.
    Busby, Weber, Miller & Donovan, for appellant.
    H. Clay Calhoun and Edward Bernhard Zahn, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

This action was brought by the administrator of the estate of Lewis L. Hudnall, against appellant Brotherhood, to recover on a benefit certificate issued by it to said Hudnall as á member thereof.

The case was tried before the court without a jury, on stipulated facts and proof showing the heirs at law of said Hudnall, for whose benefit the suit is brought. The court found the issues for plaintiff and entered judgment on the finding for the face of the certificate, $2,000, and interest thereon, amounting to $2,704.80.

It is stipulated that the Brotherhood was organized and carried on for the sole benefit of its members and beneficiaries, and not for profit, and does not do what is commonly known as life insurance business; that said Hudnall applied for membership therein October 19,1923, and became a member December 7, 1923, and in compliance with his signed application said benefit certificate was issued to him and made payable to Mary Hudnall, whom he stated in the application was his wife, a member of his family and lawfully dependent upon him for support, which statements he warranted to be true, full and complete.

The benefit certificate declares him entitled to participate in the beneficiary department of the Brotherhood to the amount set forth in its constitution and provides that it “at his death shall be paid to Mary Hudnall, his wife, if living; if not, to the executor or administrator of said member’s estate * * * for * * * his heirs at law.”

The certificate requires the member to comply with the constitution, general rules and regulations of the Brotherhood, and makes them, together with his application for the certificate and the medical examination a part thereof, and provides that they “together with this certificate constitute the contract between said L. L. Hudnall and said Brotherhood.”

Section 63 of the constitution and general rules of the Brotherhood provides as follows:

“Payment of death benefits shall be only made, or certificates transferred to parents, children, legally adopted children, lawful wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, step-father, stepmother, step-children, blood relation, or persons lawfully dependent upon the member, provided that a member having no wife or children living may, with the consent of the Grand Lodge, make a charitable institution or a subordinate lodge of the Brotherhood his beneficiary. In case a member makes a designation other than permitted by this section the benefits of his certificate shall revert and belong to the Brotherhood. * * *”

It was further stipulated that at the time Hudnall applied for membership and when the benefit certificate was issued to him he was not married and never married thereafter; that the person referred to as Mary Hudnall in the application and certificate, and designated as his wife, is living; that she was never the wife of said Hudnall nor dependent upon him, and “does not come within any of the classes of eligible beneficiaries mentioned in said section 63”; that said Hudnall was at one time engaged to be married to her, but that she was married to one Grotty at the time Hudnall applied for membership in defendant and is still married to Grotty, although Hudnall did not know of her marriage until after he had applied for membership in defendant.

The declaration is in one count and predicated on the right of the administrator to have the amount of the certificate paid to him for the benefit of decedent’s heirs at law.

It is apparent that the application failed to designate a beneficiary to whom payment could be made under the terms of the constitution, which forms a part of the contract, and it is so stipulated. That fact would seem to foreclose the necessity of any discussion. But appellee argues in substance that because a member could properly designate a “wife” as his beneficiary, and the certificate speaks at the time of his death and there was then no wife living, the facts present a contingency upon which payment may be made to the administrator for the benefit of the heirs at law. We fail to see any force to this argument. The constitution of the society and the contract manifestly contemplate the applicant shall designate as beneficiary a person that belongs to some one of the classes to whom payment of benefits may be made thereunder. The member admittedly designated one who did not come within any of those classes, because she was not his wife at any time, regardless of his intentions. A person not of a class for whose benefit a mutual benefit association is organized, cannot be a beneficiary. (Alexander v. Parker, 144 Ill. 355; Warner v. Modern Woodmen of America, 67 Neb. 233.) It seems perfectly clear, therefore, that the contingency upon which payment may be made to the administrator did not arise, and the member having made a designation other than permitted by the constitution the benefits of his certificate must, according to the express terms of the constitution and the contract, revert to and belong to the Brotherhood.

If the contract does not contravene any principle of sound public policy — and it is not shown, nor does it appear, that it does — we must uphold the conditions of the certificate and enforce the contract, for it is fundamental that the courts cannot make a new contract for the parties. (Covenant Mut. Life Ass'n v. Kentner, 188 Ill. 431, 440; Kelly v. Brotherhood of Railroad Trainmen, 308 Ill. 508, 512; Steen v. Modern Woodmen of America, 296 Ill. 104, 118.) Cases before our Supreme Court cited by appellee, where the beneficiary designated was not eligible to take, and it was held the fund was payable to some one or more of a class to whom benefits may be paid, are not in point and need not be discussed, for in none of those cases was there a provision of the contract that the fund should revert to the society, nor did the society question its liability, but filed a bill of interpleader admitting it. While it is said that there is no case in this State bearing directly upon the validity of such a clause, it may be inferred from the language of the court in Knights & Ladies of Honor v. Menkhausen, 209 Ill. 277, that such a provision is enforceable, for it says:

“If societies of the character of appellant desire to be protected from such contingency,” (failure to designate an eligible beneficiary) “that object must be accomplished by a condition to that effect written into their contracts, failing which the law will not absolve them from liability. * * * In the absence of a contract to that effect, public policy will not permit the society to appropriate unto itself the fund which it has agreed to pay, merely because the life of the insured has been unlawfully taken. ’ ’

There was a like ruling in Supreme Lodge, N. E. O. of P. v. Hine, 82 Conn. 315, 73 Atl. 791, where there was no provision for reversion of the fund to the society and the society, admitting liability to some one, filed a bill of interpleader. The court said:

“Where statutes fix the classes of persons for whom the fund shall be accumulated, the persons so indicated will take where there has been no designation or a void designation, of a beneficiary, unless otherwise provided by statute or the laws of the society.”

But here no statute is pointed out or relied upon as governing this case, or that renders invalid the express provision for reversion of the fund. It is not ambiguous and the only question arising is, Is it enforceable?

While, as pointed out, there is no direct decision of that question in this State, it has been passed on in other jurisdictions. Grand Lodge A. O. U. W. v. Cleghorn (Tex. App.), 42 S. W. 1043; Walker v. Young Men’s St. M. Mut. Aid & Benev. Ass’n, 148 La. 962, 88 So. 232; Reichle v. Perkins, 232 N. Y. 435, 134 N. E. 336; Grand Circle, Women of Woodcraft v. Rausch, 24 Colo. App. 304, 134 Pac. 141, 144. In each of these cases a provision for the reversion of the fund to the society, or for its nonliability, for failure to designate an eligible beneficiary, was held binding. In the Gleghorn case the laws of the society provided that each member might designate the person to whom his mortuary fund should be paid; that should such person die before the member, the fund should be paid to the member’s surviving widow and children; and if there should be no one living, entitled to the fund, it should revert to the society. The member never designated any beneficiary. The court held that there could be no beneficiary to take, unless at some time the member has made a designation, that he alone had the power to make it and he having failed to exercise it and thus comply with the terms of the contract there was no liability on the part of the association, and that the fund by the express terms of the contract reverted to it.

In the Walicer case, the suit for recovery was brought for the member’s minor children, but the court held that the designation of the member’s concubine, an ineligible beneficiary, was no designation at all, and that under the express terms of a by-law in such case that the “society will not be liable,” etc., it was not liable.

In the Reichle case no beneficiary was designated and suit was brought by the administratrix of the estate. The by-laws of the society provided that a member might at any time designate a beneficiary, but that if the member did not, and if he left no widow, minor children, or dependent relations — and he left none— all right and claim of any person "to the death benefit should wholly cease and determine. The court sustained the right of the parties to make the agreement and held that the administratrix could not recover.

In Grand Circle, Women of Woodcraft v. Rausch, supra, the husband of the member was named as beneficiary and later killed his wife and then himself. But the court felt bound to uphold a provision of the policy for reversion of the fund in case the member to whom the certificate was issued should be murdered by any beneficiary named therein.

Other cases are cited by appellant where the non-liability of the society for failure to designate an eligible beneficiary was upheld. But as in those cases there was no express provision for forfeiture or reversion of the fund they will not be considered.

In some cases a distinction, which we need not dwell upon, is noted between mutual benefit societies and regular life insurance companies' in the fact that the latter are operating upon a reserve basis and the policy always has a pecuniary or cash surrender value. (Cook v. Supreme Conclave, etc., 202 Mass. 85, 88 N. E. 584; Eastman v. Provident Mut. Relief Ass'n, 62 N. H. 555; Warner v. Modern Woodmen of America, 67 Neb. 233.)

We, therefore, hold with the weight of outside authority, there being no authority to the contrary in this State, and it not appearing that the provision of reversion contravenes sound public policy, and the contract being one which the parties were competent to make, it must be enforced according to its plain provisions.

Accordingly the judgment is reversed with findings of fact.

Reversed with findings of fact.

G-ridley, P. J., and Fitch, J., concur.

Findings of fact. We find that the decedent, L. L. Hudnall, failed to designate an eligible beneficiary, and that the provision in his benefit certificate for reversion of the fund to .the society for such failure does not contravene sound public policy.


source: Caselaw Access Project

author: Mr. Justice Fitch

license: Public Domain

text:
    Anna M. Hintz, Administratrix of the Estate of John Hintz, Appellant, v. Minnie Moldenhauer, Administratrix of the Estate of August Moldenhauer, et al., Appellees.
    Gen. No. 30,956.
    1. Bills of review — when hill to set aside judgment m slander action properly dismissed for want of equity. A bill in the nature of a bill of review, filed 20 years after recovery of a judgment against complainant’s intestate in an action for slander, seeking to have such judgment set aside on the ground of newly-discovered evidence tending to show that certain testimony given in the slander suit was perjured and that the perjury was known to the plaintiff and fraudulently concealed from the intestate until shortly before the bill was filed, held properly dismissed for want of equity where the evidence showed that the issues sought to be raised wer,e res adjudicóla by reason of prior efforts to obtain a new trial, that the complainant was guilty of laches, and that it would be prejudicial to the rights of the parties to permit a retrial of the slander suit, in view of the decease of most of the important witnesses in the case.
    2. Bills of review — insufficiency of impeaching evidence to support hill. Evidence which simply tends to impeach testimony given in a former case will not be regarded as sufficient to sustain a bill of review.
    3. Bills of review — what essential to set aside decree. A court of equity will not set aside a decree upon the ground that it was obtained by false evidence, but only for fraud that gives the court colorable jurisdiction of the defense presented.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. .Oscar Hebel, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1926.
    Affirmed.
    Opinion filed February 1, 1927.
    Litsihger, Healy & Reid, for appellant.
    Castle, Williams, Long & Castle, for appellees; Jesse R, Long, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

In March, 1890, the defendant Mary Granpner, nee Moldenhauer, recovered a judgment for $2,000 in an action for slander against complainant’s intestate, John Hintz. This judgment was affirmed by the Supreme Court in June, 1891. (Hintz v. Graupner, 138 Ill. 158.) Twenty years thereafter, in June, 1911, the bill in this case was filed by John Hintz, in the nature of a bill of review, seeldng to' have the judgment against him set aside upon the ground of newly-discovered evidence tending to show that certain testimony given in the slander suit was perjured and that the perjury was known to the plaintiff and fraudulently concealed from John Hintz until a short time before the bill was filed. John Hintz died in 1913, while a demurrer to the bill was pending. In 1916 his death was suggested and his granddaughter, the administratrix of his estate, was substituted as complainant. An amended bill was filed in 1917, to which the defendants filed answers, and the cause was then referred to a master in chancery who heard the testimony and reported in favor of the defendants. In December, 1925, the report was approved and a decree entered dismissing the.bill for want of equity. The complainant appeals.

The action for slander was based on statements made in 1888 by John Hintz to the effect that Mary Moldenhauer had stolen the money of Mrs. Kolberg. All the parties and witnesses lived at that time in Des Plaines. Upon the trial of that suit it appeared that in October, 1887, Mrs. Kolberg’s house had been entered in the daytime, while she was away, and $80 of her money stolen from a flour barrel in which it had been concealed by her. There was evidence tending to prove that Mary Moldenhauer had stopped over night at Mrs. Kolberg’s house the second night before the burglary and was told at that time.where the money was kept, and that on the day of the burglary she was seen by one of the neighbors (Mrs. Mary Schaefer) to enter and leave Mrs. Kolberg’s kitchen in the absence of the latter, and by another neighbor (Carl Schaefer) was seen to “come out of Kolberg’s gate” with one hand “covered with flour”; that when Mrs. Kolberg returned and discovered her loss, she went to the house of Mrs. Schaefer, who related what she had seen, and thereupon Mrs. Kolberg accused Mary Moldenhauer of the theft, but the latter denied it; that this story spread through the village and was the subject of much excited discussion, but no arrest was made; that Mary Moldenhauer was then engaged to be married to a minister named Graupner, and soon after the burglary her engagement was announced in church, whereupon John Hintz, with others, visited the clergyman who made the announcement and openly charged her with stealing Mrs. Kolberg’s money.

A man named Ira Barchard lived in Des Plaines at that time. He was a constable, a deputy United States marshall, a collector of debts, sometimes a detective, and altogether apparently a man of some local importance and influence. Miss Moldenhauer sought his assistance, with the result that he testified in the slander suit, in rebuttal, to facts which made it appear that Mary Schaefer, instead of Mary Moldenhauer, stole Mrs. Kolberg’s money. His testimony was to the effect that soon after the burglary “William T. Lee,” whom he did not otherwise identify, wrote Bar-chard’s name and address upon three envelopes; that “Lee” kept one of them, and that Barchard marked the other two, put stamps on them and delivered one to Mary Schaefer and one to Mary Moldenhauer, telling each of them in turn that he had been authorized by Mr. Kolberg to say that he would be satisfied if half of the stolen money was returned, and that she could use the envelope he handed her, for that purpose; that Mrs. Schaefer protested that she did not “have” the money, but finally took the marked envelope, and that the next day, in the presence of several persons whom he had called as witnesses, he took from the post office in Des Plaines the identical envelope he had delivered to Mrs. Schaefer, opened it and found in it $40 in money and a letter. He produced and identified the marked envelope, but when asked to produce the letter, he testified that he had “not seen it for some time,” that he had “put it some place” and could not find it. From the bill of exceptions in the slander suit, it appears that he was not asked to give and did not state the contents of- the letter; that he was not asked who “Lee” was, and that the only questions asked of him as to Lee’s whereabouts were: “Is he in court?” and, “He is not in the city?” and that Bar-chard answered both questions in the negative. Mrs. Graupner testified that Barchard gave her a similar envelope, which was produced on the trial, and that she saw him give one to Mrs. Schaefer. Mrs. Schaefer denied that she ever received such an envelope from Barchard and denied sending him a letter with money in it at any time.

The amended hill in the present case charges that the testimony of Barchard and of Mary Graupner in the slander suit, that he gave an envelope to Mrs. Schaefer for the purpose stated by him, was false and perjured; that Barchard never delivered such an envelope to Mrs. Schaefer and she knew nothing of it or its contents; that Barchard, Mrs. Graupner and August Moldenhauer, Mrs. Graupner’s father, conspired to manufacture and introduce the false evidence to make it appear that Mary Schaefer was the confessed thief; that in pursuance of such conspiracy, they drafted a letter reading as follows:

“Mr. Barchat: You find fourty dolars you Told me if I give this Bank you would make it al stil and I would get no truple if you do this and Choule dont find out I wil give you ten Dolers for you when is al still” and caused the same to be written “in imitation of the handwriting of the said Mary Schaefer” by William T. Low, Barchard’s confidential clerk, and placed in an envelope addressed by Low to Barchard containing $40 in money, and themselves caused the envelope so prepared and filled to be deposited in the post office in Des Plaines; that when Barchard testified that he had “lost or mislaid” this letter, he and they knew it was in Barchard’s possession and was wilfully suppressed by him for the reason that its production at the trial “would have established the perjury of Barchard and other witnesses in behalf of defendant and their fraud”; that Mary Schaefer could write nothing in English except her name, and if the letter had .been produced, “it could have been clearly demonstrated” that it was a forgery and that Bar-chard’s testimony with reference thereto was false; that “directly after” the burglary, Mary Moldenhauer admitted her guilt to Barchard, but at her request and that of her father, he proceeded to “unlawfully procure” as witnesses persons who were willing to testify that she was elsewhere at the time it was claimed she entered Mrs. Kolberg’s house, and to have such persons rehearse the testimony they were to give; that the alleged conspirators also caused Barchard to testify that the name of the man who addressed the envelopes was Lee, instead of Low, in order that Hintz might not be able to locate him; and that because of these matters, Hintz was prevented from discovering the alleged perjury and fraud and “the necessary evidence thereof” until August 19, 1910 — 20' years after the trial, six years after Barchard’s death and nearly a year before this suit was commenced — at which time, it is alleged, John Hintz learned, from a son of Bar-chard and from his divorced wife, that the latter could testify that the real facts were as charged in the bill.

All these charges of the bill were specifically denied in defendants’ joint answer, and they set up as an affirmative defense that in January, 1892, John Hintz filed a bill containing the same charges of conspiracy, perjury and fraud; that he alleged' in that bill that he had then learned that the letter which Barchard claimed he received from Mrs. Schaefer was in the possession of Barchard’s wife; that it was not written by Mrs. Schaefer and that if granted a new trial he would be able to prove this to be true and to compel the production of the letter; that the bill also prayed for an injunction, restraining the sheriff from levying an execution on certain of the real estate of John Hintz; that a temporary injunction was issued which, after answers were filed to the bill, was dissolved, on motion of the defendants, supported by certain affidavits, which were attached to defendants’ answer in this case. Among such affidavits was one of Ira Barchard, made and filed in July, 1892, denying the charges of conspiracy, perjury and fraud, alleging that his testimony in the slander suit was true, including his statement that the letter referred to in the bill had been lost or mislaid; that at the time of the trial, “no particular stress was laid upon the letter”; that he was not asked by either side to make a search for it, and that he afterwards found it at his home in Des Plaines; that the facts and circumstances connected with the “letter episode” were common talk in Des Plaines and were known to complainant’s attorneys, Van Burén & Moak, long before the trial, and that “the deposition of William T. Lee, who addressed said envelopes at this affiant’s request, was taken at the office of Walker, Furthmann & Judd long before the trial, when the several envelopes were produced and identified by said Lee.” Bar chard’s affidavit also contained a verbatim copy of the letter. The answer further alleges that a final decree was entered in that case in May, 1893, dismissing the bill for want of equity; that the appeal of Hintz therefrom to the Appellate Court was dismissed for failure to file a transcript of the record in time; that thereafter Hintz sued out a writ of error in the Appellate Court, and in October, 1898, the decree of the lower court was affirmed. (The opinion of the Appellate Court shows that the praecipe record there filed did not contain the evidence. 78 Ill. App. 514.)

At the time of the hearing before the master in chancery in 1919, many of the 32 witnesses who testified in the slander suit were dead and the whereabouts of others were unknown. Mrs. G-raupner in her testimony enumerated 20 of such witnesses who had died since that suit was tried, including John Hintz, August Moldenhauer, Ira Barchard, Mary Schaefer, Carl Schaefer, William Kolberg, and the clergyman who, 39 years ago, made the announcement that preceded the utterance by complainant’s grandfather of his alleged slanderous statements. Apparently, all who were living and were then available testified. The transcript of this testimony covers 500 pages in a record of over 1,500 typewritten pages. The master found, in substance, that John Hintz knew, or should have known, when he filed his first bill of review in 1892, all the material facts regarding the alleged conspiracy, perjury and fraud; that while the alleged conspiracy and fraud charged in complainant’s bill of complaint were incidental to the issues presented in the slander suit, they became and were direct and material issues in the subsequent proceedings brought by Hintz in 1892, in which he sought to obtain a new trial, and that such issues were determined in that suit by a court of competent jurisdiction and are now res adjudicata; that upon the question of fact in the present suit, as to whether there was a conspiracy or fraud as charged, the evidence was conflicting, being supported by the testimony of Mrs. Doane, the former wife of Ira Barchard, and Frank Barchard, his son, with some slight corroboration by William. T. Low, and being contradicted by the evidence of eight persons, most of whom were witnesses in the slander suit and all of whom testified that they knew of no conspiracy or school for perjury; that the evidence does not preponderate in favor of complainant; that the complainant was guilty of laches; and that because of the death- of most of the important witnesses, including all but one of the parties to the alleged conspiracy, it would be prejudicial to the rights of the parties to require the issues of the slander suit to be again tried without the personal presence of such witnesses.

We have carefully studied the abstract and much of the transcript of the evidence in this case, and after due consideration of the same and the arguments of counsel, we are convinced that the chancellor did not err in approving the master’s report and dismissing the bill for want of equity.

The case of Boyden v. Reed, 55 Ill. 458, bears a striking resemblance to this case, in many respects. There, in 1868, a bill was filed to impeach for fraud a decree rendered in favor of one Kemp and against the complainant in 1855, which had been affirmed by the Supreme Court. The bill of review charged that the decree was obtained by Kemp through his fraud and the perjury of John Shank and his wife, Parmelia, who were suborned, bribed and procured by Kemp to bear false wdtness to the effect that a certain writing was an absolute agreement to convey land in fee simple, well knowing that it was intended to be merely a security for the payment of money loaned. The opinion states that the bill was not filed until five years after the death of Kemp and not until after the death of John Shank, and holds the evidence of fraud to be insufficient and that complainant was guilty of laches. The evidence principally relied upon to establish the fraud of Kemp in procuring the former decree was the testimony of Parmelia Shank, and her daughter and one other witness, as to alleged admissions of Kemp and Shank. As to such testimony and its weight, the court said (p. 464):

“No doubt is entertained of the power of a court of chancery to look into a judgment or decree of any court, and if it is found that such a decree or judgment was obtained by fraud, to cancel and vacate the same. (Citing authorities.) But this will never be done, except upon the most satisfactory evidence. Such evidence is wholly wanting in this case. After the lapse of many years, and after the death of the principal actors in the original cause, for the purpose of impeaching the former decree, Parmelia Shank, and her daughter, Minnie, are brought forward to testify to admissions made by Kemp, in his life time, and the witness, John Shank, both of whom have long since been dead. * * # To the same effect, also, is the testimony of Cummings Cherry. The testimony of all these witnesses is clouded with grave suspicion, and is given under such circumstances as tend, most strongly, to weaken and destroy its force. Mrs. Shank is now an old woman, * * * and she not only testifies to her own crime of perjury in swearing falsely on the former hearing, but she and her daughter both testify, that their now dead husband and father was guilty of the crime of willful and corrupt perjury, and reproduce his deliberate admissions of that fact. Such conduct, to us, seems unnatural, and * * * their evidence, to say the least of it, is too unsatisfactory in its nature to be relied upon with sufficient confidence to set aside and vacate a solemn decree of court that has stood for thirteen years, and has been affirmed by the highest judicial tribunal in the State.” We think the same conclusion must be reached in this case as to the testimony of the former wife and son of Ira Barchard. Moreover, in one important particular at least — that of the marking of the envelopes by Barchard — the testimony of Low contradicts the testimony of Barchard’s wife and supports his testimony.

In the same case (55 Ill. 463) it was said that “The general rule is, that evidence that tends simply to impeach testimony given in the former case will not be regarded as sufficient to sustain a bill of review. Smith v. Lowry, 1 Johns. Ch. 320.” The rule thus stated is also mentioned in the following additional cases: United States v. Throckmorton, 96 U. S. 61; Vance v. Burbank, 101 U. S. 514; Estes v. Timmons, 199 U. S. 391; Lewis v. Topsico, 201 Ill. 320, 329; Adamski v. Wieczorek, 93 Ill. App. 357; Wieczorek v. Adamski, 114 Ill. App. 161; Karsten v. Winkelman, 126 Ill. App. 418, 423. In Evans v. Woodsworth, 213 Ill. 404, 407, this rule is referred to in the following language: “Courts of equity will not, however, set aside a decree upon the ground that it was obtained by false evidence, but only for fraud which gives a court colorable jurisdiction over the defense presented. (Burton v. Perry, 146 Ill. 71, citing Caswell v. Caswell, 120 id. 377.)”

For the reasons given the decree is affirmed.

Affirmed.

Gridley, P. J., and Barnes, J., concur.


text:
    Emilie W. Peacock et al., Appellants, v. Charles H. Feltman et al., Appellees.
    Gen. No. 30, 934.
    1. Landlord and tenant — what constitutes a waiver of grounds for forfeiture. The technical breach of a lease by reorganizing the lessee corporation without lessor’s written consent to sublet was waived by lessor’s continuing to receive rent with full knowledge of the alleged breach for 77 months thereafter, when lessee’s threat of a damage suit was followed by the instant action for forcible detainer.

      2. Landlord and tenant — when, clause against waiver of breach not available. In an action for forcible detainer based on breach, of a lease providing for no subletting without the lessor’s consent, the lease clause that the receipt of rent should not constitute waiver of any breach did not prevent a waiver of forfeiture from the receipt of rent for 77 months after a sublease, with full knowledge of the facts.
    3. Landlord and tenant — how provisions for forfeiture construed. A forfeiture covenant of a lease, that subletting without lessor’s written consent breaches the lease, is to be construed strictly so as not to extend beyond the express stipulation.
    4. Landlord and tenant — incorporation of department of lessee’s business as a subletting. In a lessor’s action for forcible detainer based on the alleged breach of a lease by subletting without written consent, the nominal use of the building by a corporation which is really only an incorporation of a department of the lessee’s business, for convenience in cost accounting does not constitute such a subletting as to constitute a breach.
    Appeal by plaintiffs from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1926.
    Affirmed.
    Opinion filed February 1, 1927.
    Rehearing denied February 28, 1927.
    Butler, Lamb, Foster & Pope, for appellants; Beverly. B. Vedder and Allah J. Carter, of counsel.
    Wilsoh, McIlvaihe, Hale & Templetoh, for appellees.
   Mr. Justice Fitch

delivered the opinion of the court. This appeal is from a finding and judgment for defendants in a forcible detainer proceeding, brought to recover possession of the building known as No. 118 South State Street, Chicago, because of alleged violations of the covenants in the lease.

The lease was made in 1917. By its terms, Augusta Lehmann (plaintiffs’ mother, who died in 1918) leased the building to The Curme-Feltman Shoe Company, an Indiana corporation, Arthur H. Curme and Charles H. Feltman, for 15 years from January 1, 1918, “to be occupied for shoe store and general mercantile purposes”; and the lessees covenanted and agreed “that said premises shall not * * * be occupied in whole or in part by any other person, and will not sublet the same, nor any part thereof, nor assign this lease, without in each case the written consent of the party of the first part first had. ’ ’ The lessees took possession of the building soon after the lease was executed, and ever since that time the building has been continuously occupied for the purposes mentioned in the lease and the stipulated rental of $3,000 a month was regularly paid to the lessors by the occupants thereof, until December, 1925, when a statutory ten days’ notice to quit was served on defendants specifying the following default, viz: “Inhaving sublet the premises, having assigned the lease, and having permitted the premises to be occupied by persons other than the lessees.” No other ground of forfeiture is claimed.

"When the lease was made in 1917, the Indiana corporation, named in it as one of the three lessees, owned and operated eight retail shoe stores, two of which were located in Chicago and six in other cities. Curme and Feltman, the other two lessees named in the lease, were the president and secretary, respectively, of that corporation, who owned all but a few shares of its capital stock. In May, 1919, that corporation was dissolved and a new one formed under the laws of Delaware, with a much larger capital, called “The Feltman & Curme Shoe Stores Company,” which, in exchange for all its capital stock, acquired all the property and assumed all the liabilities of the Indiana corporation. The defendant Curme was elected president of the new corporation, and the defendant Feltman was elected general manager, secretary and treasurer. All of its common stock, all of the second preferred stock, and a majority of its first preferred stock was issued to them, and the remainder ($275,000) of its first preferred stock was sold to two other persons to provide additional working capital for the business. Feltman and Curme retained full control of the new corporation, and the shoe business theretofore conducted at 118 South State Street was carried on thereafter by the same individuals as before but the name of the new corporation was placed on the front of the store, and the corporate name of the Delaware corporation was used thereafter in its business transactions and in all its letters to the “Estate of E. J. Lehmann,” which appears to have been the name used by the lessors in their transactions with the lessees subsequent to the time when the estate of Mrs. Augusta Lehmann was closed in the probate court.

While this reorganization was being effected, Felt-man and Curme went together to the office of the E. J. Lehmann Estate to obtain the lessors’ written consent to an assignment of the lease to the new corporation. There they met Mr. Behr, the manager, arid Mr. Praesent, then the assistant manager and afterward the -manager, of the “Estate.” The testimony of these four witnesses as to what was said on that occasion is conflicting. That of Feltman and Curme is to the effect that they explained the reorganization to Mr. Praesent and told him their attorney had asked them to get the lessors’ written consent to transfer the lease; that Praesent said it was “not necessary at all,” since they remained in control and “it was practically the same concern,” and to “go right along as before,” and they testified that because of what Praesent said at that time, no formal assignment of the lease from the old to the new corporation was ever executed. The testimony of .Behr and Praesent as to that interview is to the effect that the request of Feltman and Curme was referred to E. J. Lehmann and refused by him two days later. Which version of this conversation is correct is immaterial, beyond the admitted facts that such a request was made; that the reorganization was mentioned and that no written consent of the lessors was secured.

For the purposes of this case, it may be conceded that the use and occupation by the Delaware corporation at any time thereafter “without the written consent of the lessors first had” was, prima facie, a technical breach of the covenants of the lease, and this prima facie showing forms the basis of one of plaintiffs’ claims.

As to this alleged breach, however, the record shows that, for 77 consecutive months after the breach occurred, the Delaware corporation each month sent its check for $3,000 to the Lehmann Estate for the rent due under the lease, and that from October, 1919, to October, 1925, the plaintiffs, with full knowledge of the breach, accepted such checks and caused the Lehmann Estate to give its receipts to the Delaware corporation, by name, for such payments as rent of the building in question. There is also other documentary evidence tending to prove that plaintiffs knew that the Delaware corporation was in possession of the leased premises, claiming to be a tenant, during all that time, and there is no evidence fairly tending to prove the contrary. It also appears from the evidence that, notwithstanding plaintiffs were fully aware of this technical breach, the first objection made by anyone on their behalf to the continued occupancy by the Delaware corporation as their tenant was made soon after two letters had been written by defendants’ attorney to the plaintiffs, complaining of the alleged negligent manner in which plaintiffs were “shoring up” the building occupied by defendants to provide for the construction of an adjoining building. The date of the notice to quit is four days after the date of the second of such letters, which threatened “injunctional proceedings” and hinted at a suit for damages.

Upon consideration of these facts, we think the trial court did not err in finding therefrom that the technical breach shown was waived by the plaintiffs, and that by their own conduct they were estopped from asserting that breach as a ground of forfeiture.

It is urged that the defense of waiver is not available to defendants because the eighth clause of the lease so provides. The pertinent part of that clause is as follows: “Nor shall the receipt of said rent or any part thereof or any other act in apparent affirmance of the tenancy operate as a waiver of the right to forfeit this lease and the term thereby granted for the period still unexpired for any breach of any of the covenants herein.” This language is not free from ambiguity. It may have been intended only to cover the receipt of instalments of rent accruing during the pendency of a suit for possession, as in Palmer v. City Livery Co., 98 Wis. 33, and Granite Bldg. Corp. v. Greene, 25 R. I. 586, both of which are referred to in Vintaloro v. Pappas, 310 Ill. 115, 117; or it may refer to the inadvertent receipt of rent after a breach has occurred, before the lessor has knowledge of the breach. It does not say, and we think it does not mean, that the repeated and long continued acceptance of rents, after a breach has occurred, with full knowledge of such breach, shall not operate as a waiver of the right of forfeiture based upon such breach. At all events, counsel have cited no case, and we know of none, in which such a clause in a lease has prevented the operation of the usual rule, expressed as follows in Webster v. Nichols, 104 Ill. 160, 172: “Any act done by a landlord knowing of a cause of forfeiture by his tenant, affirming the existence of the lease, and recognizing the lessee as his tenant, is a waiver of such forfeiture. (1 Williams’ Saunders, 287; 2 Platt on Leases, 471; 1 Washburn on Real Property, 454.) The receipt of rent subsequently accruing from the tenant by the landlord is suplí an act, and the forfeiture thereby waived.” (Citing authorities.) The language so used in stating the rule is quoted from the case of Ireland v. Nichols, 46 N. Y. 413, 416. In that case the opinion shows that it was contended that where there was a subletting of a portion of the premises without the written consent of the lessor, as required by the lease, there was a continuing cause of forfeiture, so long as the occupancy under the subletting continued; but the court held that the subletting was not continuous but was a distinct act occurring when the sublease was made; that when the sublessees entered into possession under it, the forfeiture was complete; and that when this right was waived by receiving rent subsequently accruing, with knowledge of the forfeiture, “the right founded upon the subletting or the occupancy, in pursuance thereof, was gone.” We are therefore of the opinion that the defense of waiver was available to defendants in this case, notwithstanding the eighth clause of the lease.

When plaintiffs’ case was closed, this was the only breach shown, or claimed by them. Upon cross-examination of the defendants Feltman and Curme, however, it developed that in the summer of 1925 they had organized another Delaware corporation called “Felt-man & Curme, Incorporated,” the specified object of which was “to sell shoes at retail,” which corporation, at the time the notice to quit was served, had several thousand pairs of shoes and some hosiery in the leased building. They testified, in substance, that the new corporation was in fact the mail order department of the business of The Feltman & Curme Shoe Stores Company; that it handled that company’s mail orders and door-to-door canvassing; that it was formed 'for the purpose of keeping a separate account of that part of the business of that company, in order, as Curme testified, “to determine how much profit or loss we had from that department as compared with other departments of our business”; that it was “solely a matter of bookkeeping and accounting”; that the Shoe Stores Company owned all the capital stock of Feltman & Curme, Incorporated; that Curme was its president and Feltman its treasurer; that its shoes were handled by the employees ‘1 engaged in other work at the store, ’ ’ who were hired and paid by the Shoe Stores Company; that one Cramer “was the sales manager for the new corporation,” and he was hired and paid by the Shoe Stores Company.

This, in substance, is all the evidence in the record regarding “Feltman & Curme, Incorporated.” It was all brought out by the plaintiffs and they did not attempt to contradict it. They now rely on it as “clear proof” that a second ground of forfeiture existed when the notice to quit was served. They contend that this evidence shows that a separate legal entity, a “person other than the lessee, ’ ’ was permitted to occupy a part of the leased premises and that such occupancy, “without the written consent of the lessor first had,” was a clear violation of the covenant of the lease.

Covenants of this character in a lease' are not favorably regarded by the courts and are construed liberally in favor of the lessees, and so as to prevent the restriction from extending beyond the express stipulation. Forfeitures are not favored in law, and conditions are taken strictly, because they divest estates. (Boyd v. Fraternity Hall Ass'n, 16 Ill. App. 574, 576; Postal Telegraph-Cable Co. v. Western U. Tel. Co., 155 Ill. 335, 348.) The words of the covenant, “that said premises shall not be occupied in whole or in part by any other person,” must be given a reasonable construction. They cannot be held to include “persons,” whether natural or artificial, whose use, possession or occupancy of the leased premises was that only of the lessees themselves. Such, in effect, was the character of the occupancy of Feltman & Curme, Incorporated. That corporation was a part of the lessees’ business organization, and such possession as it had of any part of the leased premises consisted of such space as was required from time to time to enable the employees of the Shoe Stores Company to pack and ship to customers of the latter such shoes as were ordered by mail or from canvassers. Its so-called “occupancy” of the premises was therefore the occupancy of the Shoe Stores Company — a mere system devised by it for purely cost-accounting purposes. We are clearly of the opinion that the evidence as to Feltman & Curme, Incorporated, is not sufficient to sustain the claim of the plaintiffs or support a judgment of forcible detainer against defendants.

These conclusions make it unnecessary for us to decide other propositions argued by counsel.

For the reasons stated, the judgment is affirmed.

Affirmed.

Gridlet, P. J., and Barnes, J., concur.


author: Mr. Presiding Justice McSurely

text:
    The People of the State of Illinois, Defendant in Error, v. A. L. Whitmer and L. R. Cotter, Plaintiffs in Error.
    Gen. No. 31,222.
    1. Criminal procedure — when information does not comply with constitution. An information which declares that “in his own proper person” the State’s attorney “prosecutes in this behalf for and on behalf of the said People of the State of Illinois” does not comply with the constitutional provision (Illinois Const. art. VI, § 33) which requires all prosecutions to be carried on “in the name and by the authority of the People of the State of Illinois.”
    2. Corporations — exclusive jurisdiction of Illinois Commerce Commission over sales of public utility stock. The Illinois Commerce Commission has exclusive jurisdiction over sales of stock of public utilities.
    3. Corporations — when stock of utility company not Class “D.” Stock of a public utility company issued under the authority of the commerce commission is not within Class “D” under the Securities Law, Cahill’s St. ch. 32, 256, 261, merely because a preliminary, conditional certificate issued by the commerce commission was declared invalid by the Supreme Court, where immediately after the decision the commission issued an order reciting compliance with its previous order and authorizing the issuance of the stock, from which order no appeal was taken.
    Error by defendants to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1926.
    Reversed with finding of fact.
    Opinion filed February 7, 1927.
    Lee D. Mathias, for plaintiffs in error; Harvey E. Wood, of counsel.
    Egbert E. Crowe, State’s Attorney, for defendant in error; Edward H. Taylor, Edward E. Wilson, James H. Mahoney and Mortimer C. Crover, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This writ of error brings in review a prosecution under the Illinois Securities Act [Cahill’s St. ch. 32, if 254 et seg.], in which, upon trial by the court, defendants A. L. Whitmer and L. E. Cotter were found guilty and fined $5,000 each.

Defendants say that the information does not comply with the provisions of section 33, article VI of the Constitution of the State of Illinois, which commands that all prosecutions shall be carried on: In the name and by the authority of the People of the State of Illinois”; the information here does not so run but "is as follows:

“Again on this day comes into open court in his own proper person, Eobert E. Crowe, State’s Attorney in and for the County of Cook and State of Illinois, and prosecutes in this behalf for and on behalf of the said People of the State of Illinois.” This objection is technical, but finds support in a number of decided cases.

“When a constitution or act of the legislature, prescribes a certain form to be used in legal proceedings, it would seem that the court has no power to dispense with that form. Therefore, as the indictment does not pursue the form given in the constitution, that all indictments shall be carred on ‘in the name, and by the authority of the People of the State of Illinois,’ it is bad.” Whitesides v. People, Beecher’s Breese (1 Ill.) 21.

“The motion to quash should have been sustained. The information does not run, ‘in the name and by the authority of the People of the State of Illinois,’ as required by the constitution.

“These words can not be dispensed with. They constitute matter of substance, and advantage can be taken of their omission, in arrest or on error.

“This proceeding is a prosecution, and the language of the constitution must be used, as in indictments.” Hay v. People, 59 Ill. 94.

“Counsel for plaintiff in error is correct in his position that if a suit was a prosecution the court could not dispense with words which are essential in all prosecutions and advantage of their omission can be taken on motion in arrest or on error.” People v. Gartenstein, 248 Ill. 546.

“The provision is mandatory in all prosecutions to which it is applicable, and the omission of the constitutional requirement in such cases may be urged on motion in arrest of judgment or on writ of error.” State v. Froelich, 316 Ill. 77.

No cases to the contrary are presented. We therefore hold that the information is not in compliance with the constitution. The trial court should have sustained the motion in arrest of judgment and this error compels a reversal.

Defendants were charged with having sold Class “D” securities without having first filed in the office of the Secretary of State the documents required by the Illinois Securities Act. Defendants say that the evidence shows that the securities were not Class “D” but Class “A” securities, and that by section 4 of the Illinois Securities Act (Cahill’s St. ch. 32, ]j 257) Class “A” securities are exempt and not subject to the provisions of this act. Section 4 describes Class “A” securities as those:

“(3) Issued or guaranteed by any corporation operating any public utility in the United States or any state thereof or in the Dominion of Canada or any province thereof wherein there is or was at the time of issuance thereof in effect any law regulating such utilities and the issue of securities by such corporation,” etc., and that “securities in Class ‘A’ and the sales thereof shall not be subject to the provisions of this act.”

The defendants were charged with selling securities of the West Suburban Transportation Company, whose corporate purposes according to its charter are “to own, control, operate, mortgage or lease, one or more busses propelled by gas, steam, electricity or other appropriate motive power or drawn by horses, or mules for the purpose of transporting passengers or goods, wares and merchandise on public highways and to do and perform any matter or thing necessary or incidental thereto.”

Section 10, Illinois Commerce Commission Act (Cahill’s St. ch. 111a, H 25) defines a public utility as follows:

“The term ‘public utility’ when used in this Act, means and includes every corporation * * * that now or hereafter:

“ (a) May own, control, operate, or manage, within the State, directly or indirectly, for public use, any plant, equipment or property used or to be used for or in connection with the transportation of persons or property or the transmission of telegraph or telephone messages between points within this State”; etc.

“(b) May own or control any franchise, license, permit or right to engage in any such business.”

If such a corporation desires to issue securities, such issue is under the control of the Illinois Commerce Commission Act, section 20 [Cahill’s St. ch. 111a, 35] of which is as follows:

“The power of public utilities to issue stocks, stock certificates, bonds, notes and other evidences of indebtedness and to create liens on their property is a special privilege, the right of supervision, regulation, restriction and control of which is and shall continue to be vested in the State, and such power shall be exercised by the Commission hereby created according to the provisions of this Act and under such rules and regulations as the Commission may prescribe.” * * *

Section 21 [Cahill’s St. ch. 111a, [[36] is as follows:

“Subject to the provisions of this Act and of the order of the Commission issued as provided in this Act, a public utility may issue stocks and stock certificates, ’ ’ etc.

Pursuant to this act, the West Suburban Transportation Company applied to the Illinois Commerce Commission for a certificate of convenience and necessity to operate a motor bus line between Cicero, Illinois, and Hinsdale, Illinois, and intervening points. April 19, 1922, this commission issued a preliminary certificate providing that after the company complied with certain terms and conditions a certificate of convenience and necessity would be granted. An appeal from this order was taken by the Chicago and West Towns Railway Company to the superior court of Cook county, which court, October 23, 1922, reversed this order. Prom this superior court decision, an appeal was taken to the Supreme Court which affirmed the decision in an opinion filed June 20, 1923, reported in 309 Ill. 87.

June 21, 1922, the Illinois Commerce Commission entered an order finding that the West Suburban Transportation Company had complied with the conditions contained in its order of April 19, 1922, and issued its certificate of convenience and necessity to said company and gave authority to operate motor vehicles between the points set forth in the order. The order further recited that, application having been made to the commission for the consent of the commission to the issue by the West Suburban Transportation Company of $100,000 of stock and the commission having found that the money to be procured by the issuance and sale of said capital stock is “reasonably necessary and required,” it was therefore ordered “that the West Suburban Transportation Company be and it is hereby authorized to issue its capital common stock in the aggregate par amount of $100,000,” and to sell the same under certain conditions as to price and accounts. The order also provided that all certificates of stock should be stamped on the face thereof as follows:

“Illinois Commerce Commission
Authorization No. 1324
June 19,1922.”

No appeal was taken from this order of June 21,1922.

The defendants admitted that the West Suburban Transportation Company had not filed any statements with the secretary of State under the provisions of the Illinois Securities Act [Cahill’s St. ch. 32, [f 254 et seq.].

The evidence shows that on June 11 and 18, 1923, Reverend Michael O’Sullivan purchased 500 shares of the capital stock of the transportation company from a salesman of a brokerage firm.

We fail to see upon what reasonable theory it can be said that these certificates of stock are Class “D” and not Class “A” securities. Clearly they come under the description of Class “A” securities as those issued by a public utility company under the authority and control of the Illinois Commerce Commission Act, Class “D” are securities “other than those falling within Class ‘A,’ ‘B,’ and ‘C,’ respectively.” Section 8, Illinois Securities Act [Cahill’s St. ch. 32, U 261].

The argument seems to be that, because the Supreme Court affirmed the order of the superior court declaring null and void the order of the commerce commission of April 19,1922, the securities are thereby transferred from Class “A” to Class “D” which is described as a kind of “catch-all.” This does not follow. The Commerce Commission Act controls the issuance and sale of Class “A” securities and severe penalties are imposed for the violation of its provisions in this respect. See sections 24, 25, 26, 61 to 64, 76 and 77, Illinois Commerce Commission Act [Cahill’s St. ch. 111a, 39, 40, 41, 80-83, 95 and 96]. The commerce commission has exclusive jurisdiction over the sales of stock of public utilities.

We conclude that the securities involved herein were Class “A” public utility securities subject to the provisions of the Illinois Commerce Commission Act and not subject to the provisions of the Illinois Securities Act, and that the prosecution under the Securities Act cannot be maintained.

For the reasons above indicated, the judgment of the municipal court is reversed with a finding of fact.

Reversed with finding of fact.

Hatchett and Johnston, JJ., concur.

Finding of fact. We find as an ultimate fact that the securities which the defendants were charged with having sold are not Class “D” securities as charged, but are Class “A” securities and exempt from the provisions of the Illinois Securities Act and that the defendants are not guilty of selling Class “D” securities as charged in the information.


text:
    Rose Schramko, by Fred Olson, Plaintiff in Error, v. The Boston Store of Chicago, Defendant in Error.
    Gen. No. 31,255.
    1. Directing verdict — when peremptory instruction for defendant should not he given. A peremptory instruction for the defendant should not be given where there is any evidence, with all the inferences that the jury may justifiably draw therefrom, which fairly tends to prove the cause of action set out in the declaration.
    2. False imprisonment — capacity in which arrester acted as question for jury. In an action for false arrest and imprisonment held that whether the man in citizen’s clothes who arrested plaintiff in defendant’s store for alleged theft therefrom was, on such occasion, acting as a city police officer, as an employee of a detective agency, or under the control and direction of defendant, was a question of fact for the jury.
    3. Trial — relation of parties to contract as question for jury. Even where a contract exists which assumes to determine the relation of the parties, if the facts and circumstances in evidence tend to show the existence of a relationship other than that fixed by the contract, the question of the existence of that relationship becomes one of fact for the jury, notwithstanding the contract.
    4. False imprisonment — adoption and ratification of false arrest hy course of conduct. A person, although not originally responsible for a false arrest, may pursue a course of conduct which will amount to an adoption and ratification thereof.
    5. False imprisonment — adoption and ratification of acts of arrester as question for jury. In an. action for, false arrest and imprisonment, held that it was a question for the jury whether defendant adopted and ratified the acts of the man in citizen’s clothes who arrested plaintiff in defendant’s store for alleged theft therefrom.
    6. Trial — testimony of plaintiff in error required to he taken as true when verdict directed for defendant in error. On writ of error to reverse the judgment entered on an instructed verdict for the defendant in an action for false arrest and imprisonment, plaintiff’s testimony that she was restrained of her liberty in defendant’s store until she had signed an alleged confession of theft therefrom was required to be accepted as true.
    7. False imprisonment — what constitutes “false imprisonment.” Prima facie any restraint put by fear or force on the actions of another is unlawful and constitutes “false imprisonment.”
    8. False imprisonment — arrest without process as trespass. An arrest without process is trespass if no criminal offense is committed or attempted in the presence of the arresting officer, whether the latter has probable cause or not to believe the arrested person guilty; such an arrest can be justified only by proving actual guilt.
    9. False imprisonment — assumption on motion of defendant in action for false arrest and imprisonment for directed verdict. In an action for false arrest and imprisonment, it must be assumed on defendant’s motion for a directed verdict that plaintiff’s testimony that she lawfully bought the articles which she was arrested for stealing from defendant’s store and that such articles were her property, was true.
    10. Libel and slander — whether circumstances amounted to slander as question for jury. Whether charges of theft made by the person making an arrest for the alleged stealing of jewelry from defendant’s store, amounted to slander held a question for the jury.
    11. Assault and battery — whether physical violence amounted to assault as question for jury. Whether physical violence shown by the evidence amounted to an assault on plaintiff, arrested for the alleged stealing of jewelry from defendant’s store, held a question for the jury.
    Error by plaintiff to the Circuit Court of Cook county; the Hon. Philip L. Sullivan, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1926.
    Reversed and remanded.
    Opinion filed February 7, 1927.
    Rehearing denied February 18, 1927.
    Corinne L. Bice and A. H. Banes, for plaintiff in error.
    Moses, Kennedy, Stein & Bachrach, for defendant in error.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

By this writ of error plaintiff seeks the reversal of an adverse judgment entered upon an instructed verdict in an action to recover damages for alleged false arrest and imprisonment.

Plaintiff, a minor, by her guardian brought suit al-. leging in her declaration, in various counts, false arrest and imprisonment of plaintiff by defendant; that defendant accused her of stealing a pair of bracelets; that she was forced to remain and sign a so-called confession, the conversion by defendant of a pair of bracelets, the property of plaintiff, and an assault by the defendant upon the plaintiff.

It is the established rule that a peremptory instruction for the defendant should not be given where there is any evidence, with all the inferences that the jury may justifiably draw therefrom, which fairly tends to prove the cause of action set out in the declaration. Libby, McNeill & Libby v. Cook, 222 Ill. 206, and cases therein cited.

Plaintiff was 16 years of age at the time of the occurrence and was employed by Morris & Company to decode and type cables. The evidence tended to show that September 23, 1920, about noon, she went to the store of the defendant to do some shopping. She went to the jewelry counter on the first floor and was waited upon by Bose Chaden, a sales clerk. Plaintiff bought a pair of bracelets, paying $1.19 for them, and the sales clerk helped plaintiff to put the bracelets on her wrist, as she desired to wear them. Plaintiff received a sales slip of the sale, but inadvertently laid it on the counter and walked away without it. After she had gone a little distance she was stopped by Charles Sullivan, in citizen’s clothes, who said to her, “Tour purse is full of stolen jewelry and the bracelets you have on were stolen,” and pulled her by the arm roughly. Plaintiff requested to be taken back to the sales clerk to be identified, but Sullivan would not permit this and told her he would take her upstairs. A crowd of people collected around them. Sullivan held onto her arm all the way to the elevator and while they were in the elevator and. took her to Mr. Mangold, the superintendent of the defendant.

Sullivan told Mangold that the girl had stolen the bracelets and that a clerk in the store had seen that her purse was full of jewelry. Mangold told Sullivan to go out of the office, and the door was closed. Plaintiff asked Mangold to take her back to the counter where she had purchased the bracelets and she would prove that she had bought them, but Mangold refused to let her go back or to go with her. He kept insisting that she had stolen the jewelry and then took out a partly typewritten form having blanks to be filled in. He filled out the blanks and urged the plaintiff to sign the statement or she would be sent to jail. Plaintiff persisted in saying that she did not steal the bracelets, but finally in order to get free she signed the statement without reading it over. Mangold told her that if she would sign, it she would not have to go to jail. After she signed it he called Sullivan and they both signed the statement as witnesses. This was in evidence and purports to be a confession of theft by plaintiff. Then Sullivan led the plaintiff out of the office through the store and told her at the door never to come to the Boston Store again or he would arrest her.

Plaintiff went at once from the store to the office of an attorney and presently returned to the store with her attorney. They sought out the woman who had sold the jewelry to the plaintiff, explained that plaintiff had lost her sales slip and asked that she be given another slip, which the clerk did. Said slip, which was admitted as an exhibit for the plaintiff, recited that two bracelets had been bought from the sales clerk for $1.19 a pair.

Rose Chaden, the sales clerk, testified that she sold the bracelets to the plaintiff and helped put them on her arm; that later in the afternoon, when plaintiff and a man came back, she gave them another sales slip. The defendant retained the bracelets.

The defendant’s witness, Sullivan, testified that he always took persons under such circumstances to the superintendent’s office.

Defendant argues that Sullivan was employed by McGuire & White Detective Agency and was acting for said agency, and was not the servant or employee of the defendant; hence, defendant is not liable for his acts. There was in evidence a contract of defendant with McGuire & White purporting to cover the relations between them, but such contract was for the years 1907 to 1909; whereas, the instant occurrence took place in September, 1920, some 11 years after said contract expired. There was also evidence that Sullivan was appointed to serve as a special police officer by the superintendent of city police.

Whether Sullivan upon this occasion was acting as a city police officer, or an employee of McGuire & White, or under the control and direction of defendant, was a question of fact to be determined by the jury. If he was acting as a city police officer, it was his duty upon making an arrest to take the party directly to the police station. He testified that his usual custom was to take such persons to the superintendent’s office of the defendant. One may be a police officer, but it does not follow that all his acts are in the line of his duty as an officer of the law. Whether or not he represented the public in his actions, or represented the defendant, should have been left to the jury. The fact that he took the plaintiff to defendant’s office and left her with Mangold, the superintendent, as directed by Mangold; that he signed the alleged confession as a witness, as directed by Mangold, and then took plaintiff to the outer door of the store and told her not to return to the store or she would be arrested, with other circumstances, should have been presented to the jury to determine whether Sullivan was acting as an officer of the law or as a representative of the defendant. Moss v. Campbell’s Creek R. Co., 75 W. Va. 62; Zygmuntowicz v. American Steel & Wire Co. of New Jersey, 240 Mass. 421.

Even where a contract exists which assumes to determine the relations of the parties, if the facts and circumstances in evidence tend to show the existence of a relationship other than that fixed by the contract, the question of the existence of that relationship becomes one of fact for the jury, notwithstanding the contract. Vacker v. Yeager, 151 Ill. App. 144.

It was also a question for the jury to determine whether defendant adopted and ratified the acts of Sullivan. Under certain circumstances, even though a defendant may not be originally responsible for an arrest, yet it may pursue a course of conduct which amounts to an adoption and ratification of the acts of the officer. Ehrhardt v. Wells Fargo & Co., 134 Minn. 58; Burke v. Robinson (Mo. App.), 271 S. W. 1005; Hotel Tutwiler Operating Co. v. Evans, 208 Ala. 252.

The evidence tended to show that Mangold, the superintendent, was acting as the representative of the defendant. Plaintiff’s testimony must be accepted as true that she was restrained of her liberty by Mangold in his office and not permitted to leave until she had signed the alleged confession. This evidence tended to support the" allegation of her declaration.

“Prima facie any restraint put by fear or force on the actions of another is unlawful and constitutes a ‘false imprisonment’ for which damages are recoverable.” Wax v. McGrath, 255 Mass. 340, 151 N. E. 317; Meints v. Huntington, 276 Fed. 245; Hines v. Adams, 27 Ga. App. 155, 107 S. E. 618; Coolahan v. Marshall Field & Co., 159 Ill. App. 466; Field v. Kane, 99 Ill. App. 1.

False imprisonment is “any unlawful exercise or show of force, by which a person is compelled to remain where he does not wish to remain, or to go where he does not wish to go.” Durgin v. Cohen, 168 Minn. 77, 209 N. W. 532. False imprisonment is “the unlawful restraint by one person of the physical liberty of another. The true test seems to be, not the extent of the restraint, but the lawfulness thereof.” Weiler v. Herzfeld-Phillipson Co., 89 Wis. 554, 208 N. W. 599.

Mangold did not pretend that he saw the crime committed, but took the word of Sullivan in the matter. It has been held that the arrest of a private person without process is trespass if no criminal offense was committed or attempted in the presence of the officer, whether he had probable cause or not to believe the arrested person guilty. Hight v. Naylor, 86 Ill. App. 508. Such arrest can be justified only by proving actual guilt of the party. Siegel, Cooper & Co. v. Connor, 70 Ill. App. 116; Kindred v. Stitt, 51 Ill. 401.

It is not seriously contended that the plaintiff stole the bracelets in question. At least, it must be assumed upon the motion to direct the verdict that she lawfully bought the bracelets and they were her property.

That defendant retained the bracelets purchased by plaintiff seems to be conceded, so that the fact of conversion by defendant was established.

It is said that defendant corporation cannot be found guilty under the count charging slander. The evidence tending to support this was that Sullivan, in the presence and hearing of a number of persons, said to plaintiff, “You stole some jewelry. This girl stole jewelry,” and that when Sullivan took her to Mangold’s office he repeated the charge that she had taken jewelry; that Sullivan also told some man that she had a bag full of stolen jewelry.” It has been held that under certain circumstances a corporation may be held liable for slanderous words spoken by its agent. Margolis v. United Dairy Co., 214 Ill. App. 613; Rosenberg v. Underwriters Salvage Co., 190 Ill. App. 64; Buckeye Cotton Oil Co. v. Sloan, 250 Fed. 712. It was for the jury to say whether or not the instant circumstances amounted to slander.

This is also true of the evidence tending to show that the defendant assaulted plaintiff. There was evidence tending to show physical violence towards plaintiff by Sullivan. It cannot be said, as a matter of law, that this did not amount to an assault.

Industrious attorneys for the defendant have cited a large number of cases which they argue justify the directed verdict. These cases can be distinguished from the instant case and do not dissuade ns from onr conclusion. To point out the differences would unduly lengthen this opinion.

Upon the entire record, we hold that the peremptory instruction to find for the defendant was not justified. The case should have been submitted to a jury.

For the error indicated, judgment is reversed and the cause remanded.

Reversed and remanded.

Hatchett and Johnston, JJ., concur.


text:
    Emil Leeser, Trustee, Appellant, v. Francis Kibort et al., Appellees.
    Gen. No. 31,318.
    1. Notice and record of title — indices which afford constructive notice to subsequent purchasers. Subsequent purchasers of land will not be chargeable with constructive notice of a trust deed thereon by reason of the fact that such deed is indexed in the recorder’s tract books, the keeping of such books not being required by statute; it is only the grantors’ and grantees’ indices which afford constructive notice.
    2. Notice and record of title — to whom record of deed is constructive notice. The recording of a deed is constructive notice only to parties holding in the same chain of title and a purchaser is not required to examine every record that may affect real estate before he can safely take title.
    3. Notice and record of title — effect of misdescription. The record of a trust deed will not operate as constructive notice to subsequent purchasers where the description gives the wrong section number, even though it also gives the correct lot and block numbers and the title of the subdivision, and there was no other subdivision of that title in the county.
    4. Notice and record of title — conveyances not in chain of title as notice. The record of a trust deed given prior to the time when the grantor acquired title to the land is not constructive notice to subsequent purchasers, as it is not in the chain of title and subsequent purchasers are not obliged to search for conveyances made by the vendor prior to Ms acquisition of title.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. Oscar Hebei,, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed February 7, 1927.
    Jerome S. Breakstone, for appellant.
    Sherman C. Spitzes and Charles F. Grimes, for Chicago Trust Company, William P. Johnson and Anna Johnson, appellees.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This is an appeal by complainant from a decree dismissing his bill for want of equity and granting certain cross-complainants relief.

The bill sought to foreclose a trust deed executed by Francis Kibort on April 29, 1920, to secure his promissory note for $2,000, conveying Lot 33, in Block 8, in Cobe and McKinnon’s Fifty-ninth Street and Western Avenue Subdivision of the SB % of the NE % “of Section Twenty-four” Township 38 North, Range 13, east of the Third Principal Meridian, in Cook county, Illinois. It was alleged that this was a mistaken description in that the section should have been 13, instead of 24; that the only subdivision known as the Cobe and McKinnon’s Fifty-ninth Street and Western Avenue Subdivision in Cook county was in Section 13. The bill prayed that the trust deed be reformed and corrected so as to describe the property as in Section 13 and that an accounting be had of the amount due complainant and that he have a decree of foreclosure on Lot 33, Block 8, in Section 13.

The Chicago Trust Company filed an answer disclaiming any notice or knowledge of the aforesaid trust deed and claimed that it was the owner of five promissory notes signed by Francis Kibort dated July 10, 1920, aggregating $3,500, secured by a trust deed conveying Lot 33, in Block 8, in Cobe and McKinnon’s Subdivision in Section 13.

Defendants William P. Johnson and Anna Johnson, his wife, filed a cross-bill alleging that pursuant to a contract made November, 1920, they became the owners of Lot 33, Block 8, in Section 13, and received a warranty deed of the same from Kibort and wife dated April 22, 1921, which was recorded April 26, 1921; that they had no knowledge of the complainant’s trust deed and asserted that it was a cloud upon their title to the premises and asked that it be declared null and void. The complainant filed an answer to this cross-bill, denying the defendants’ right to the relief prayed for.

The cause was referred to a master in chancery who found that both the Trust Company and the Johnsons were innocent purchasers for value without notice, actual or constructive, of the complainant’s trust deed and recommended that the bill be dismissed for want of equity and that the complainant’s trust deed be set aside as a cloud on the title. Exceptions to the master’s report were overruled, and a decree pursuant thereto was entered.

April 29,1920, when Kibort conveyed to Emil Leeser, trustee, to secure the note sought to be foreclosed, the title to Lot 33, in Block 8, in Cobe and McKinnon’s Subdivision, in Section 13, was in Harold B. Nelson, who by warranty deed dated May 14, 1920, and recorded June 8, 1920, conveyed the same by correct description to Francis Kibort. July 10, 1920, Kibort and wife conveyed to Chicago Trust Company, trustee, said premises correctly describing the same, to secure the payment of a loan to him of $3,500, which trust deed was recorded July 13, 1920. April 22, 1921, Kibort and wife conveyed by warranty deed, recorded April 26, 1921, said premises, correctly described, to William P. Johnson and Anna Johnson, jointly. Neither of these defendants, when the loan was made or the property purchased, had any actual notice of the trust deed to Leeser, and in acquiring their interests, respectively, they relied entirely upon the opinions of title of the Chicago Title & Trust Company which made no mention of the Leeser trust deed.

Complainant does not claim that these parties had any actual notice of the Leeser trust deed, but says, if they had examined the recorder’s tract books, they would have noted it. The record before us fails to show that this trust deed appears indexed in the tract books, but, even if it did, such books are not required by statute to be kept. The grantors ’ and grantees ’ in-dices alone afford constructive notice.

The record of the Leeser trust deed was not constructive notice to subsequent purchasers. This trust deed erroneously located the subdivision in Section 24, instead of Section 13. It may be that there was only one Cobe and McKinnon’s Fifty-ninth and Western Avenue Subdivision in Cook county, and that it was in Section 13, but there was no allegation or proof that the Chicago Trust Company or the Johnsons knew that fact; neither was there anything in the description in the Leeser trust deed to indicate this.

It has been held that the recording of a deed is constructive notice only to parties holding in the same chain of title and a purchaser is not required to examine every record that may affect real estate before he can safely take title. If there is an error apparent on the face of the instrument and of such a character as to lead a purchaser of ordinary prudence to make inquiry, and such inquiry would have led him to knowledge of the true condition of the title, he will be held to such knowledge. In this case, however, there was nothing on the face of the instrument to indicate error or anything which would lead a purchaser of ordinary prudence to make any inquiry. Where the notice is constructive resting only on the record of an instrument and there is a misdescription of a substantial nature, the record will not operate as constructive notice and a purchaser will not be affected. Slocum v. O'Day, 174 Ill. 215; Thorpe v. Helmer, 275 Ill. 86, and cases therein cited.

An additional ground for dismissing the bill was that the trust deed from Kibort to Leeser was not in the chain of title. At the time this was made, Kibort had no title to the property in question. He acquired title subsequently by deed from Harold B. Nelson. When the Chicago Trust Company and the Johnsons acquired their interests, they were presumed to have searched the records for instruments made by Kibort on and after May 14, 1920, the date when he acquired title. They were not called upon to search for conveyances made by a party prior to the time he acquired his interest. They are not chargeable with notice of facts shown- by records not in their chain of title. Capper v. Poulsen, 321 Ill. 480; Calder v. Chapman, 52 Pa. 359. The decided cases on this point are admirably summarized in Pomeroy’s Equity Jurisprudence, vol. 2 (4th Ed.), p. 1304, as follows:

“How far back is a purchaser bound to search the record title of his own vendor? If the records show a good title vested in the vendor at a certain date, and nothing done by him after that time to impair or encumber the title, it would seem that the policy of the registry acts is thereby accomplished; the purchaser is -protected; he is not bound to inquire farther back, and to ascertain whether the vendor has done acts which may impair his title prior to the time at which it was vested in him as indicated by the records. This view is supported by many decisions, — it seems by the weight of authority, — which hold that a purchaser need not prosecute a search for deeds or mortgages made by his own vendor, farther back than the time at which the title is shown by the records to have been vested in such vendor; or in other words, a purchaser is not bound by the registry of deeds or mortgages from his vendor made prior to that time. ’ ’

The cases cited by complainant are concerned with facts substantially different from those in the instant case. The decree was in accordance with well-established rules and is affirmed.

Affirmed.

Hatchett and Johnston, JJ., concur.