text:
    Albert Reinhardt and Leonhard Jay, Complainants, v. Martin Matheson et al., Defendants. Chicago Title & Trust Company, Trustees, Cross-complainant and Appellee, v. Albert Reinhardt and Leonhard Jay, Cross-defendants and Appellants.
    Gen. No. 33,301.
    Opinion filed May 31, 1929.
    Edward J. Kelley, for appellants.
    Lyle L. Richmond and Frederick W. Janson, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is an appeal from a decree of the superior court of Cook county, entered May 4,1928, wherein the court overruled complainants’ (cross-defendants’) demurrer to the amended cross-bill of the Chicago Title & Trust Company, trustee, and, upon their election to stand by ■their demurrer, ordered that the cross-bill (as further then amended by striking out certain words from its prayer) be taken as confessed; and further ordered that said complainants and cross-defendants “be and they are hereby directed to file their affidavit or other instrument in writing, renouncing and disclaiming any and all interest or claim of interest by themselves, their heirs, administrators, executors and assigns, in and to” certain real estate in DuPage county, Illinois (describing it); and that, “upon their failure so to do within 30 days, that Wirt E. Humphrey, a master in chancery of this court, prepare and file of record in said DuPage county an affidavit or instrument in writing, to the end (effect) that this court, having jurisdiction of said Reinhardt and Jay, has ordered, and decreed that the affidavit of Edward J. Kelley, recorded on August 2, 1927, ... in the office of the recorder of deeds of DuPage county, be decreed a cloud upon the title of Chicago Title & Trust Company, . . . and that said Reinhardt and Jay have no right, title, interest or claim, nor have any person or persons under them, in or to said real estate or any part thereof, under or by virtue of the said writing mentioned in said affidavit of Edward J. Kelley.”

The appeal was first taken to the Supreme Court but on December 20,1928, the cause was transferred to this Appellate Court as “no freehold is involved.” (Reinhardt v. Matheson, 333 Ill. 56, 57.)

Complainants’ amended bill was filed on January 19, 1928, against Martin Matheson, J. B. Cook, Cook and Matheson, managers of the Medinah Highlands, of which Chicago Title & Trust Company is trustee (hereinafter called the Trust Co.), and said Trust Co., as trustee. It is alleged in substance that on February 21, 1927, Cook and Matheson, as snch managers, etc., entered into a written contract whereby they, for a total consideration of $27,000 to be paid by Reinhardt, agreed to cause the title to said real estate, to be conveyed by the Trust Co. to Reinhardt; that part of the purchase price had been paid to Cook and Matheson; that on June 2, 1927, Reinhardt had assigned with their consent all his right, title and interest in the contract to Jay; and that the execution of the contract by Reinhardt, the payments made thereon, and the assignment of Reinhardt’s interest therein to Jay, had all been brought about by certain false and fraudulent representations made by Cook and Matheson, which were not known to be false and fraudulent when the contract was signed, the payments made, or the assignment executed. The prayer of the'bill is that the contract of February 21, 1927, “be cancelled and held for naught,” and that Cook and Matheson be required to return all moneys and certain notes received, etc. Answers were filed to the bill.

On April 3, 1928, the Trust Co., by leave of court, filed an amended cross-bill in which it alleged that on February 27, 1925, by a certain deed in trust delivered to it, it became vested with the legal title to said real estate, “in trust, nevertheless, to pay the proceeds of rentals or sales of the premises to certain beneficiaries named in a certain trust agreement, dated February 27, 1925, and known as trust number 14449, or as they might direct”; and that “it still retains its said title.” The contract of February 21, 1927, between Cook and Matheson and Reinhardt, as well as Reinhardt’s assignment to Jay, are set out in full. It is then alleged that by the terms of the contract it was provided that, in case of the failure of the purchaser (Reinhardt) to make any of the payments as provided, the contract should at the option of Cook and Matheson be determined and canceled, in which case all payments should be retained by them as liquidated damages; that $500, due under the contract on August 1, 1927, had not been paid, and that on October 7, 1927, they had “elected and declared said contract determined and cancelled and the right, title and interest of said Reinhardt and Jay forfeited and terminated,” and the same have “ceased and terminated.”

It is further alleged that on August 2, 1927, Reinhardt and Jay caused to be filed of record in the office of the recorder of deeds of DuPage county, by their solicitor, Edward J. Kelley, an affidavit wherein it is stated that Reinhardt on February 21, 1927, signed a contract with said Cook and Matheson for the purchase of said real estate in DuPage county, that the contract had been assigned to Jay, and that “Reinhardt and Jay were about to commence proceedings to rescind and cancel said contract.”

It is further alleged that in the contract it was expressly covenanted that it “shall not be recorded, and, if recorded, shall become void”; and that the recording of the Kelley affidavit constituted a violation of the spirit and intention of the contract and a wilful and mala fide attempt on the part of Reinhardt and Jay to injure cross-complainant and cloud its title to the real estate.

The prayer of the cross-bill was that the affidavit “be declared null and void, expunged from the records, and caused to be removed as a cloud upon the title”; that Reinhardt and Jay be ordered to file of record in DuPage county their affidavit or instrument in writing, renouncing and disclaiming any and all claim of interest in the premises, and that, upon their failure so to do, the court direct a master in chancery to prepare and there file of record an appropriate instrument to that effect, etc.

Reinhardt and Jay filed a demurrer to this cross-bill, showing as cause for demurrer that no proper case is stated therein as entitles the Trust Co. to the relief prayed, because (a) the real estate to be affected is not located in Cook county; (b) the cross-bill is not germane to the original bill; (c) the Trust Co. does not offer to do equity; and (d) all proper relief to it can be granted under the original bill, and a cross-bill is unnecessary.

After a hearing upon the demurrer the court ordered that it be overruled, except that it be sustained as to that portion of the prayer of the cross-bill wherein it is prayed that the Kelley affidavit be “expunged from the records ’ ’ of DuPage county. Thereupon leave was given to the Trust Co. to strike those words from the prayer and the same were stricken. Thereupon the court overruled the demurrer to the cross-bill, as thus amended, and (Reinhardt and Jay electing to stand by their demurrer) entered the decree as first above mentioned.

We are of the opinion that the demurrer to the amended cross-bill, as amended, should have been sustained.

In the first place we do not think that the court had jurisdiction to grant the relief as prayed in the cross-bill, because the premises to be affected were outside of Cook county and in DuPage county. The Trust Co. asked that the Kelley affidavit “be declared null and void, expunged from the records, and cause to be removed as a cloud” upon the Trust Co.’s title to the premises. The court, upon the hearing on the demurrer, evidently treated the affidavit as such a cloud, and, while the court refused to order that it be “expunged from the records, ’ ’ it did order, after overruling the demurrer, that Reinhardt and Jay file an instrument in writing in DuPage county disclaiming all interest in the land, and that, in case of their failure so to do, a master in chancery there file an instrument showing that a Cook county court had decreed that the Kelley affidavit was a cloud upon the Trust Co.’s title and that Reinhardt and Jay had no right, title, interest or claim to the premises nor did anyone under them. This order or decree attempted to do by an indirect method what under the law, as we understand it, could not be done directly by a Cook county court. It purported on its face to affect the Trust Co. ’s title to premises lying in DuPage county. In Hayes v. O’Brien, 149 Ill. 403, 410, it is said: “Where the relief sought does not require the court to deal directly with the estate itself, the proceeding does not affect real estate, within the meaning of the third section of the Chancery Act, and the court having the parties in interest all before it, may proceed,' although the land to which the controversy relates may lie without the jurisdiction of the court.” In Bevans v. Murray, 251 Ill. 603, 623, it is said: “When it is necessary, to accomplish justice between the parties, to act directly upon the property itself, it is indispensable that the real estate to be affected must be within the territorial jurisdiction of the court.” And in the dissenting opinion of three ■ justices in said Bevans case it is said (p. 628): “The decree is not a mere personal decree, but purports to affect- directly the title to the land itself. ’ ’

And we. are of the opinion that the overruling of the demurrer to the cross-bill was erroneous for another reason, viz., because the allegations of the cross-bill do not disclose that said affidavit is a cloud upon the Trust Co.’s title. In Petty v. Beers, 224 Ill. 129, 130, it is said: “A cloud exists only where a claim of title or encumbrance appears to be valid upon the face of the instrument creating it.” In the cross-bill, after setting forth the contract of February 21, 1927, relating to the premises in DuPage county, the Trust Co. alleged that the contract had been “determined and cancelled” and that the rights of the purchaser (Reinhardt), and of his assignee (Jay), have “ceased and terminated.” There is no allegation that the contract was recorded in DuPage county, but it is alleged that on August 2, 1927, Reinhardt and Jay caused to be there filed of record, by their solicitor, Kelley, an affidavit, setting forth the fact of the making of said contract, between Cook and Matheson and Reinhardt (afterwards assigned to Jay) for the purchase from Cóok and Matheson of the real estate in question, and alleging that Reinhardt and Jay “were about to commence proceedings to rescind and cancel said contract.” It therefore appears from the allegations of the cross-bill that neither Reinhardt nor Jay had any valid outstanding claim of title to the real estate, and further that neither of them claimed that they had any claim of title.

These holdings render unnecessary any discussion of the other points, raised by the demurrer and here argued by opposing counsel.

For the reasons indicated the decree appealed from is reversed and the cause is remanded to the superior court with directions to sustain the demurrer of Reinhardt and Jay to the amended cross-bill, as amended, of the Chicago Title & Trust Company, as trustee.

Reversed and remanded with directions.

ScantjAn and Barnes, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Barnes

license: Public Domain

text:
    Helen D. Orr, Appellant, v. G. Frank Croissant and Union Bank of Chicago, Appellees.
    Gen. No. 33,259.

      Opinion filed May 31, 1929.
    Maximilian J. St. George, for appellant.
    Kirkland, Fleming, Green & Martin, for appellees; Robert N. Golding, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

In this case the court granted the motion of the defendant Union Bank of Chicago to strike the amended statement of claim, and plaintiff standing by the same has appealed. It is recognized that such motion operates in the municipal court of Chicago as a demurrer and thus raises the question whether the statement of claims stated a cause of action against the bank.

In substance said statement alleged that the bank is an Illinois corporation doing a general banking and trust business in this State, and being a trustee, agent, etc., of a certain syndicate sold to plaintiff class “D” securities, i.e., 20 units of said syndicate in the form of two certificates signed by the other codefendant, G. Frank Croissant, for which plaintiff paid $10,000, and that he has made a demand for the return of the money and for reasonable attorneys’ fees, and has tendered back the securities.

The action purports to be based on section 37 of the Securities Act, Cahill’s St. ch. 32, 290, and the court’s decision was based on paragraph 3, sec. 5.of said Act, Cahill’s St. ch.-32, H 258, subd. 3, which states that securities in class “B” shall comprise securities:

“Sold by or to any bank, trust company or insurance company or association organized under any law of this State or of the United States,- or doing business in this State under the supervision of the Department of Trade and Commerce; or of the Auditor of Public Accounts; . . .”

Appellant recognizes that the main question presented by the record is whether the defendant bank comes within the provisions of said paragraph, appellant contending that the exemption of a bank or trust company from the Securities Act thus provided for is limited to those securities which a bank owns and sells as a banking corporation, and appellee contending that the exemption applies to any security sold by a bank or a trust company in any capacity.

We think the question has already been decided in the case of Stewart v. Brady, 300 Ill. 425. In that case the constitutionality of the act was attacked among other grounds because of the special privilege said provision conferred upon banks, trust companies and other organizations. In upholding the act the court after stating its aim and intention said that the classification of the act was based not only on the securities but on the persons who deal in them and the circumstances under which the transactions take place; that the distinction as to the organizations mentioned is apparent, the banks or other organizations named being under Federal or State supervision. The court then said:

“The legislature'might well believe that because of their character, financial responsibility and methods of doing business, and of the public supervision and inspection of them, no necessity existed for requiring further guaranties for the protection of the public in dealing with them, and a classification based upon such a distinction cannot be regarded as arbitrary or unreasonable.” (p. 443.)

Notwithstanding the resultant situation stated in Mr. Justice Duncan’s dissent from the majority opinion in that case, the court nevertheless held that the statute was not rendered unconstitutional by reason of the claim that such provision conferred a privilege on banks as sellers of securities. We cannot escape the conclusion, therefore, that the decision clearly recognizes that banks and trust companies are exempt from liability under section 37 of that act.

Appellant argues that the act was not intended to confer on banks powers they do not possess under the Banking Act under which they are organized. In our opinion it is not a question whether the bank has exceeded its powers in dealing with such securities but whether they being' class “B” securities because sold by the bank it is amenable to an action brought under said section 37, Cahill’s St. ch. 32, ¶ 290. We think the scope of the Supreme Court decision requires us to answer that question in the negative.

In sustaining the motion of the bank to strike the amended statement of claim the court dismissed the suit and gave judgment to the bank as in a case of nonsuit. Appellant urges that the suit should have been dismissed as to the bank only. The action is the same in character and form as that brought in the casé of Stewart v. Brady, supra, which was there held to be properly brought in the form of assumpsit, being for money alleged to be due the plaintiff under the provisions of a statute that does not restrict him to any other remedy. Hence, if the action would not lie against one of the joint defendants it could not be maintained against both of them. As appellant stood upon the theory of the right to maintain an action against the defendants jointly he cannot complain that the suit was dismissed as to both, it appearing it could not be maintained against one of them.

The judgment is affirmed.

Affirmed.

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


text:
    Jules W. Jouvenat for use of Strath-Haven Inn Co., Appellant, v. Continental National Bank & Trust Company of Chicago (Garnishee), Appellee.
    Gen. No. 33,307.

      Opinion filed May 31, 1929.
    Townley, Wild, Campbell & Clark, for appellant; Charles V. Clark and Frederick D. Carroll, of counsel.
    Mayer, Meyer, Austrian & Platt, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

Appellee herein was garnisheed upon a judgment for $1,218.77 against Jules Jouvenat (called defendant herein) in favor of Strath-Haven Inn Co., a corporation (called plaintiff herein). Answering the interrogatories filed, appellee (into which the Trust Company named in the will has since merged) stated that it was not indebted to defendant and had no possession, charge or control of any moneys, rights, credits or effects owned or due to defendant. It stated that it holds certain stocks, bonds and other securities and cash of $159.91 under the terms and provisions of the last will and testament of Charles Jouvenat, deceased, dated June 14, 1926, who departed this life July 14, 1926, and sets forth the will in full. The particular provision therein referred to reads as follows:

“Second: After the payment of such funeral expenses "and debts, I give, devise and bequeath to my son,. Jules W. Jouvenat, my diamond ring and silver table'-.'ware, and a fund of" Eight Thousand Dollars ($8,000.00) to be deposited by my executor with the Continental and Commercial Trust Co. of Chicago, Illinois, in money and securities, to be kept by them invested and accumulate for three years after my death, then to be paid at the rate of Three Hundred Dollars ($300.00) quarterly, to the said Jules W. Jouvénat, or his legal heirs. Said fund shall not be assignable by said Jules W. Jouvenat. or his said heirs. . . .”

The court overruled plaintiff’s motion for judgment against the garnishee on its answer and discharged the latter.' Plaintiff appeals.

That such a provision creates a spendthrift trust is conceded. But it is contended that its terms are not such as put- the trust property beyond the reach of creditors of the beneficiary; that the provision against assignment has reference to a voluntary transfer and not one by operation of law. We need discuss the point only with reference to whether said trust property can be reached under operation of the law of garnishment as it exists in this State.

One of the primary principles in this class of cases is to ascertain and carry out the intention of the testator. (Steib v. Whitehead, 111 Ill. 247; Congress Hotel Co. v. Martin, 312 Ill. 318.) Looking then to the provision in question it is manifest that the testator intended that a fund of $8,000 should be set aside and held in trust for investment and accumulation therefrom for three years after his death before the beneficiary should receive any payment or benefit therefrom, and that the person or persons to whom payraents thereafter should be made would depend upon whether his son Jules would then be alive. It is apparent, therefore, that no legal claim to the fund or proceeds therefrom could be asserted by Jules prior to the lapse of said three years, which have not yet expired. The character of the fmid, therefore, was not such as could be reached by garnishment. Not only was Jules Jouvenat’s interest therein equitable in character and therefore not subject to garnishment (May v. Baker, 15 Ill. 89; Webster v. Steele, 75 Ill. 544), and not such an indebtedness as could have been recovered by the judgment debtor in his own right and for that reason not subject to garnishment (Hibernian Banking Ass’n v. Morrison, 188 Ill. 279), but to constitute an indebtedness or “legal debt due or to become due” that is subject to garnishment under our statute it must “be owing absolutely and subject to no contingency.” (Hanover Fire Ins. Co. v. Connor, 20 Ill. App. 297; Pressed Steel Equipment Co. v. Thornburgh Pressteel Co., 228 Ill. App. 1.) Because, therefore, there was no absolute indebtedness, due or to become due, and the “effects” are of an equitable character, the conclusion is irresistible from the authorities cited that the fund is not one such as can now be reached by garnishment. Whether it may be otherwise alienated is not before us for consideration, and that fact obviates the necessity of discussing or distinguishing the authorities cited.

Affirmed.

Gtridley, P. J., and. Scanlan, J., concur.


author: Mr. Justice Scanlan

text:
    New York Bond & Mortgage Company, Appellee, v. H. E. McWilliams, Appellant.
    Gen. No. 33,189.

      Opinion filed May 31, 1929.
    A. W. Martin and Edward H. S. Martin, for appellant.
    Epstein, Féiwell, Arvey & Sachs, for appellee; Louis M. Mantynband and Norman Asher, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

In the municipal court of Chicago, in an action of the fourth class, New York Bond &■ Mortgage Company, a corporation, plaintiff, sued H. E. McWilliams, defendant. The trial court, upon motion of the plaintiff, struck from the files the defendant’s amended affidavit of merits and entered a default against the defendant, and found from “the evidence contained in the affidavit of plaintiff’s claim” that there was due to the plaintiff the sum. of $660. Judgment was entered on the finding and this appeal followed.

The plaintiff’s amended statement of claim alleged that the defendant was indebted to it in the sum of $660 for brokerage commissions earned by it; that the defendant on August 6, 1927, made a written application to the plaintiff seeking to employ it to negotiate a loan upon certain real property in Chicago, Illinois; that the plaintiff accepted the terms and conditions contained in the application and instituted negotiations to procure a loan in accordance with the terms in said application; that it did negotiate a loan for said defendant with certain mortgage brokers, who agreed to make the defendant a loan pursuant to the terms of the written application, and who were at all times ready, able and willing to consummate and make a loan to the defendant upon the said terms; that the defendant agreed to pay the plaintiff 6 per cent of the amount of the loan and that there is due the plaintiff from the defendant the sum of $660. • Thereafter the defendant filed the following amended affidavit of merits: “Leave of court first being had and obtained, Heber T. Dotson, makes oath and says that he is the attorney for the defendant, H. E. McWilliams. In this behalf he verily believes that the defendant has a good defense to this suit upon the merits to the whole of the plaintiff’s demand; that the defense of the defendant to said suit is as follows: I. Affiant denies that at the time mentioned in the plaintiff’s statement of claim herein or at any other.time-that the defendant entered into a contract with the plaintiff in the manner and form as set forth in the plaintiff’s statement of claim or that the defendant agreed to pay the plaintiffs, the New York Bond & Mortgage Company, for services rendered the sum of Six Hundred and Sixty ($660.00) Dollars or any other sum whatsoever; but the affiant avers that the defendant did make the said application as set forth in the plaintiff’s statement of claim in the manner and form as set forth. Affiant further avers that the New York Bond & Mortgage Company was not in accordance with defendant’s application. This affiant further avers that on the contrary the New York Bond & Mortgage Company made this plaintiff'a counter offer of a mortgage to the amount of Two Thousand ($2000.00) Dollars less than this defendant applied for to the New York Bond & Mortgage Company. II. Affiant denies that the plaintiff is a duly licensed and authorized broker or has full authority to negotiate loans of the character as set forth in the defendant’s application; the affiant further -avers that there is not nor was at the time of the commencement of this suit any such corporation as the New York Bond & Mortgage Company as by the said statement of claim is alleged. (Signed) Heber T. Dotson.” (Italics ours.) Here follows the jurat.

The defendant has argued several assignments of error, but we need notice only one. The defendant concedes that the amended affidavit of merits contains -matters that do not constitute a defense, but he contends that it does directly and positively aver as a fact, and not as a conclusion or hearsay, “that there is not nor was at the time of the commencement of this suit any such corporation” as the plaintiff; that the defense of nul tiel corporation was a complete defense to the action; that “as the amended affidavit of merits stated one good defense, it was sufficient, regardless of the number of insufficient defenses also contained therein,” and that therefore the trial court erred in striking the amended affidavit of merits from the files. In our judgment, this contention is a meritorious one. A plea denying that a plaintiff is now or ever has been a corporation is a plea in bar, since the sustaining of such a plea will defeat the action. (Keokuk & Hamilton Bridge Co. v. Wetzel, 228 Ill. 253.) “It is the law, even where formal pleadings are required, that a pleading consisting of several parts, counts or pleas is good if any portion or paragraph thereof sets up a legal defense or a legal claim.” (American Hard Rubber Co. v. Howe, 280 Ill. 431, 435.) Paragraph (o) of Rule 15 of the municipal court provides (inter alia) that “in first and fourth class cases for the recovery of money only, the defendant shall, if he makes a defense, file an answer, which shall be an affidavit sworn to by himself, his agent or attorney, stating that he has knowledge of the facts and that he verily believes that the defendant has a good defense to said suit upon the merits to the whole or a portion of the plaintiff’s demand” (italics ours), and the plaintiff contends that a defendant is required by this paragraph to state that he “has knowledge of the facts” and that a failure to do so makes the añidavit fatally defective and the trial court, upon motion, must strike it from the files.

For the purpose of answering this contention of the plaintiff, we will assume that the requirements of paragraph (o) of Rule 15 apply to a case where the defendant avers the defense of nul tiel corporation. It has been frequently held that an affidavit of merits need not be in the language of the statute, but it may be in equivalent language, or it may state in substance what the statute requires, and there is no good reason why a stricter rule should be followed in a case where rules of a court are involved. What does the word “aver” in the italicized portion of the amended affidavit of merits mean? Bouvier defines “averment” as “a positive statement of facts, as opposed to an argumentative or inferential one.” The Century dictionary states that the word “aver,” in law, means “to allege as a fact,” and that the word “averment,” in law, means “an allegation or statement as a fact.” Therefore the affiant stated as a fact “that there is not nor was at the time of the commencement of this suit any such corporation as the New York Bond & Mortgage Company as by the said statement of claim is alleged.” We are unable to see why this is not a substantial compliance with the requirements of paragraph (o) of Rule 15. The law presumes that when the affiant made that statement he had knowledge of the fact, and it holds him to account if he had not such knowledge. Rule 11 of the municipal court provides that “in any action by or against a corporation, it shall not be necessary to prove the existence of such corporation . . . unless . . . the corporate'existence of such plaintiff or defendant ... is denied by affidavit, signed by the party making such denial or by his agent or attorney . . .” And paragraph (q) óf Rule 15 provides that “if a party seeks to controvert the right of another to sue as executor, or as trustee, .or in any other representative capacity, or as a corporation or a partnership, he shall do so hy specific denial.” (Italics onrs.) These provisions are clearly intended to apply to the defense of nul tiel corporation, and other like defenses, and the only requirement of paragraph (q) is a “specific denial.” Under the common-law practice, a plea of nul tiel corporation, “like that of non est factum, is a simple negation, — a denial of the capacity in which the plaintiff sues, — and is not the averment of an affirmative fact. ’ ’ (Bailey v. Valley Nat. Bank, 127 Ill. 332, 340.) But, as we have held that the defense of nul tiel corporation, as averred in the amended affidavit of merits, was in substantial compliance with the requirements of paragraph (o) of Bule 15,_we do not deem it necessary to decide whether or not the defendant, in averring that defense, was bound by the requirements of that paragraph.

The plaintiff argues that the statement in question of the affiant, in the present case, is so worded that it could not be the basis of an indictment for perjury. If we assume that the defendant in stating the defense of nul tiel corporation was bound by the requirements of paragraph (o), still the instant contention is without merit, for if the affiant, at the time that he made the statement in question, knew that it was false, and intended that it should mislead the trial court, he could be prosecuted for perjury, and, further, it would be perjury for the affiant to wilfully and corruptly swear to the said statement, if, at the time he made it, he had no knowledge as to whether or not the plaintiff was a corporation.

Plaintiff further contends that the defense of nul tiel corporation was clearly insufficient in law because the defendant dealt with the plaintiff as a de facto corporation and is therefore estopped to deny that it has been legally organized. Plaintiff, if it sees fit, may invoke that rule of law upon the trial of the case. We are certainly not in a position to sustain the instant contention upon the record before us. In fact, the plaintiff argues that the statements in the amended affidavit of merits,- aside from those in reference to the nul tiel corporation defense “made no sense,” and certainly the statement in reference to the defense of nul tiel corporation cannot be construed as an admission by the defendant that he dealt with the plaintiff as a corporation.

The judgment of the municipal court of Chicago is reversed and the cause is remanded with directions to the court to vacate the order striking the defendant’s amended affidavit of merits from the files.

Reversed and remanded with directions.

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


author: Mr. Presiding Justice Barry

text:
    Ralph McFarland, Plaintiff in Error, v. North America Benefit Corporation, Defendant in Error.

      Opinion filed June 5, 1929.
    Robert Ferdinand Tunnell, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Plaintiff in error sued upon two certificates of insurance, each for $1,000, issued to the mother of plaintiff in error and payable to him upon her death. The declaration averred the issuance of the certificates, payment of all assessments by the insured, the death of the insured, the furnishing of proofs of death and the failure and refusal of defendant in error to pay the same. Upon the trial of the case the jury returned a verdict for $2,175, and a motion for a new trial was overruled.

Thereupon defendant in error moved in arrest of judgment and the motion was allowed and the suit dismissed at the costs of plaintiff in error. The motion in arrest was to the effect that the contracts and bylaws set out as a part of the declaration, or referred to therein, said that all payments by any member are voluntary for the purpose of aiding members; that any benefit mentioned in the contracts or by-laws are only payable upon being collected from the members, if the amount is not already on deposit in the reserve; that the total liability shall not in any case exceed the sum of $1.00 for each member in good standing and shall not exceed the amount collected from the remaining members of the class of which the insured was a member; that the declaration does not aver that there is any fund on reserve, nor does it state that an assessment has been made, nor that there are any living members who may be assessed; that the only judgment that could be rendered would be an order that the directors spread an assessment against the members in the class to which the insured belonged, etc.

In the case at bar the certificates set out in the declaration contained this provision: “And in the event of death of said member entitles Ralph E. McFarland, of Granite City, Illinois, named as beneficiary, to an amount not.to exceed the sum of One Thousand Dollars,” etc. Where certificates contained substantially the same language it was held that the amount due on the policy was prima facie the amount stated. It is almost universally held that if the insurer has not sufficient money in the reserve fund to pay the claim, or if a sufficient amount has not been collected from an assessment to pay the claim, those are matters of defense to be averred and proved by the insurer.

The following are some of the many cases which so hold: Wasson v. American Patriots, 148 Iowa 142; Krogh v. Modern Brotherhood, 153 Wis. 397; United Woodmen Benefit Ass’n v. Ivy, 112 Miss. 494, 73 So. 564; Lawler v. Murphy, 58 Conn. 294. In each of these cases the language of the certificate was, in legal effect, the same as those of the case at bar.

Where a certificate issued by a fraternal beneficiary society provides that on the death of the member assured a sum not exceeding $1,000 will be paid to the beneficiary, it is incumbent on the society to show that the proceeds of one assessment at the time of the death of such member would not have yielded the full amount. Maloney v. North American Union, 177 Ill. App. 658. In a suit on a benefit certificate providing for the payment of the amount thereof, if an assessment would yield that much, the damages are presumed to be the full amount of the certificate, in the absence of evidence that they are less because an assessment would not realize the full amount. Covenant Mut. Life Ass’n v. Kentner, 188 Ill. 431.

It necessarily follows, therefore, that the court erred in allowing the motion in arrest of judgment and dismissing the suit at the costs of plaintiff in error. The judgment of the court in that regard is reversed, and the cause remanded with directions to enter a judgment on the verdict.

Reversed and remamded with directions.


text:
    Walter Quillman, Appellee, v. L. F. Cockram, Appellant.
    Opinion filed June 5, 1929.
    E. E. Smith, for appellant.
    D. F. Moore, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

This is an action on a note payable to appellee and purporting to have been executed by appellant and others. Appellant was the only one sued and the- trial resulted in a verdict and judgment in favor of appellee.

Appellant says that the only question involved is whether or not appellee proved by a preponderance of the evidence that appellant signed the note in question. We have carefully considered that question and are of the opinion that there is ample evidence to support the verdict.

We must say, however, that the question has not been properly preserved, and if we had reached the conclusion that there was not sufficient evidence to support the verdict it would be our duty to affirm the judgment. In a jury trial if it is desired to save for review the question of the sufficiency of the evidence to sustain the verdict, the losing party must make a motion for a new trial, and, upon its being overruled, except to said ruling, and include such motion, order overruling the same and his exception thereto, together with the evidence, in a bill of exceptions. Yarber v. Chicago & A. R. Co., 235 Ill. 589; People v. Gabrys, 329 Ill. 101.

The bill of exceptions contains the motion for a new trial, but it does not contain the ruling of the court thereon or an exception thereto. For the reasons aforesaid the judgment is affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Brewerton Coal Company, Plaintiff in Error.

      Opinion filed June 5, 1929.
    West & Eckhart, for plaintiff in error; William M. Klein and Lewis O. Jesseph, of counsel.
    Marion M. Hart, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

The transcript of the record contains no placita. To enable this court to review a cause upon its merits the record must contain a placita. Hardy v. Jones, 307 Ill. 149. The purported judgment of the court below appears in the bill of exceptions and not in the common-law record. The bill of exceptions must not contain the findings and judgment of the court as they are a part of the common-law record and must be found therein. Miller v. Anderson, 269 Ill. 608; People v. Kuhn, 291 Ill. 154.

A recital of the judgment in the bill of exceptions does not show a judgment in the legal sense of the term and where that is the only evidence in the record that a judgment was entered in the court below, this court is without jurisdiction. O’Donnell v. Quinn, 100 Ill. App. 5; Riva v. City of Spring Valley, 129 Ill. App. 167; Ashmore v. Skene Lead Co., 150 Ill. App. 381.

The purported bill of exceptions is included in the transcript of the record. . It shows that the case was tried and judgment entered on September 22,1928, and 60 days were allowed for the filing of the bill of exceptions. ■ The certificate of the trial judge is to the effect that the bill of exceptions was presented to him and signed on December 29, 1928, long after the time for filing the same had expired. There is nothing in the record to show that the time was extended by the trial court. If a bill of exceptions is not presented within the time originally fixed, or within the time as • extended, the judge of the trial, court has no power or authority to sign and settle, the same. Davis v. Wirth, 249 Ill. App. 544. In the state of the record the bill of exceptions is not properly á part thereof and could not be considered even if we had jurisdiction to pass upon the merits of the case.

For the reasons aforesaid the writ of error is dismissed.

Writ of error dismissed.


text:
    Belorodker Loan & Investment Company, Appellant, v. Joe Goldenberg, Appellee.

      Opinion filed June 5, 1929.

      E. P. Rosenbebgeb and Felsen & Kane, for appellant.
    Louis Beasley and Edwabd O. Zulley, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

On August 4, 1926, Gfus Tzinberg borrowed $3,000 from appellant and the note was signed by appellee and others as sureties. It was to be paid in weekly payments of $60. On February 21, 1927,- there was still due on the note the sum of $2,040. At that time Gus Tzinberg had filed, or was about to file, a petition in voluntary bankruptcy. Appellee and two other sureties executed and delivered to appellant a new note for $2,040 payable in weekly instalments of $20. Appellant issued its check for that amount payable to the makers of the new note and the same was indorsed by them. At the same time the said parties signed a written request to appellant as follows: “The undersigned co-makers with Gus Tzinberg of a promissory note originally in the sum of $3,000.00, and on which there is now due you a balance of $2,040.00, hereby request that you accept the offer of composition made in bankruptcy by the said Gustave Tzinberg, to wit, 25% in cash of the amount due, and hereby further request that you file your claim in bankruptcy and also execute any papers necessary to evidence your acceptance of said offer, of composition. It is understood that by doing so you are not waiving any right of claim against any or all of us.” Payments to the amount of $160 were made on the new note and appellant received $477.38 from the trustee in bankruptcy on the original note. This suit was brought to collect the balance due. The first count of the declaration is upon the note for $2,040. The' second count is a consolidation of the common counts. Appellee filed the general issue and four special pleas and the trial resulted in a verdict and judgment in favor of appellee for $198.

The first special plea purports to be a plea of set-off and avers that appellee signed the $2,040 note as a surety; that at the time he signed the same appellant’s president promised and represented that he would obtain the signatures of Gus Tzinberg and six other sureties, which he failed to do; that without appellee’s knowledge of such failure appellant falsely and fraudulently told appellee that the note in question hád been paid by his cosureties except the sum of $198, and that if appellee would pay that amount to appellant his liability as surety would be entirely terminated; that said representations were false and were known to be false at the time they were made and that they were made with the intent of defrauding appellee; that appellee, not knowing of the falsity of said statements, paid the said sum of $198 to appellant and by reason of the premises is entitled to recover the same, etc.

We cannot understand how appellee could be entitled to recover $198. He had signed both of the notes. This plea avers that the alleged representations to the effect that the $2,040 note had been paid except $198 were false and untrue. In that event, or in any event, appellee in paying the $198 simply paid a part of the amount for which he was indebted to appellant. We find no evidence in the record that even tends to sustain the plea of set-off.

The second special plea avers that appellee signed the $2,040 note as a surety for Gus Tzinberg; that appellant’s president then and there promised and represented that he would obtain the signatures of Tzinberg and six other sureties to the said note; that the said representations were false and untrue and were made for the sole purpose of deceiving appellee and fraudulently procuring his signature to the said note; .that appellee, not knowing of the falsity of said representations, signed the said note and appellant failed- to procure the signatures of the said Tzinberg and the other six sureties, etc.

The plea does not aver, nor does the evidence show, that appellee signed the note on condition that it was not to be binding upon him until it was signed by Tzinberg and six other sureties. Even if he had signed the note on such a condition, and the condition was not complied with, his liability on the $3,000 note would remain in full force and effect. Bank of Benson v. Jones, 147 N. C. 419, 61 S. E. 193. The $3,000 note was offered in evidence and was admissible under the common counts.

The third special plea is a plea of want of consideration. It avers that the $2,040 note was supposed to be executed in consideration of the $3,000 note; that appellant never surrendered the $3,000 note but filed it as a claim against the estate of the principal, G-us Tzinberg, in the bankruptcy court and collected dividends thereon, etc. We have already shown that appellee requested appellant to file the claim in bankruptcy and that he had agreed that the filing thereof should not operate as a waiver of appellant’s rights against him.

The fourth special plea is to the effect that the $3,000 note was the sole consideration for the $2,040 note; that appellee signed the $3,000 note as a surety for Gus Tzinberg; that at the time of the execution of that note and just prior thereto, Tzinberg was financially insolvent and was contemplating the filing of a voluntary petition in bankruptcy; that this fact was well known to appellant’s president; that plaintiff entered into a fraudulent agreement with Tzinberg whereby it agreed to loan to Tzinberg the sum of $3,000 on condition that out of said sum Tzinberg would pay to appellant and its officers the sum of $700, provided Tzinberg would procure appellee as a surety on said $3,000 note; that appellee had no knowledge of said fraudulent agreement and had no knowledge of Tzinberg’s insolvency or contemplated bankruptcy, and innocently attached his signature to the said $3,000 note. The evidence wholly fails to support this plea. The undisputed evidence shows that on the day the $3,000 loan was made Tzinberg gave his personal check to appellant’s president for $700 and on the same day the latter gave his check to Tzinberg for the same amount. It was simply an exchange of checks and Tzinberg’s finances were in no way reduced thereby.

Appellant offered to prove certain matters by the witness Grand, to which appellee objected and the objection was sustained. It also offered in evidence the written request signed by appellee and the other makers of the note in which appellant was asked to accept the offer of .composition in bankruptcy made by Gus Tzinberg and to file its claim in bankruptcy, etc., hereinabove quoted. Appellee objected, and the objection was sustained. We are of the opinion that the court erred in its rulings in regard to both of those matters. The testimony offered would tend strongly to show that appellee and two of the other sureties on the $3,000 note had agreed to take up that note by executing and delivering to appellant their own note for $2,040. The written request would show that appellee had asked that the $3,000 note be filed as a claim in the bankruptcy court and would have disproved appellee’s third special plea. When competent evidence is offered and an objection thereto is sustained, a court of review will consider the case the same as if the evidence had been admitted.

Appellee failed to prove that he signed the $2,040 note on condition that he should not be liable thereon until appellant procured the signature of Gus Tzinberg and six other sureties. But even if he had made such proof, that would not relieve him from liability on the $3,000 note. Under the law and the evidence appellee has no defense. The judgment is reversed and the clerk will enter judgment herein in favor of appellant and against appellee for the sum of $1,402.62, and costs of suit in this court. The appellee will also pay the costs in the trial court.

Reversed and judgment rendered in this court.

The clerk will incorporate in the judgment the following : ‘ ‘ The court finds that appellant is in no way indebted to appellee and that appellee has no claim of set-off. The court finds that appellee is indebted to appellant in the sum of $1,402.62 and that appellee has no defense thereto.”


author: Mr. Justice Newhall

text:
    R. F. Tunnell, Jr., Plaintiff in Error, v. People ex rel. Henry G. Miller, Defendant in Error.

      Opinion filed June 5, 1929.
    E. F. Tunnell, Jr., pro se.

    Pope & Driemeyer, for defendant in error.
   Mr. Justice Newhall

delivered the opinion of the court.

Plaintiff in error sued out of the Supreme Court a writ of error to review judgment against him for contempt of court imposed by the circuit court of Madison county for conduct on the part of the plaintiff in error as counsel in a cause then pending before the court and a jury. The Supreme Court held that it had no jurisdiction, and, accordingly, transferred the cause to this court. (See People ex rel. Miller v. Tunnell, 331 Ill. 307.)

The entire record, certified by the clerk of the trial court (except the placita), is as follows:

“In the Matter of Otto Thurnau vs. J. B. Clifford, R. F. Tunnel for contempt.
“Now on this day January 17,1928 — The Court having admonished counsel for plaintiff as to his conduct in.the trial of the foregoing case and having ruled that counsel for defendant might ask a reasonable number of preliminary cross-questions of plaintiff, and counsel for plaintiff having repeatedly interrupted and by his general attitude, facial expression and conduct in rising .from his chair and pushing papers on counsel’s table shown and expressed his displeasure of the ruling of the Court, and said counsel, E. F. Tunnel having further, notwithstanding said ruling of the Court said ‘Well we have some rights’ and otherwise interrupted the proceedings after warning by the Court that such action would not be tolerated, — and in the presence of the jury — this Court finds that the said R. F. Tunnel is and he hereby is declared and adjudged to be in contempt of this Court, and it is ordered that said R. F. Tunnel be and he hereby is fined the sum of Twenty-five ($25.00) for said contempt and in default of said payment to the Clerk- of this Court instanter, the said R. F. Tunnel is ordered committed to the common jail of Madison County, Illinois, there to remain until he purges himself of said contempt by the payment of said fine.”

Plaintiff in error has assigned as error that the trial court erred in holding plaintiff in error in contempt of court; that the person adjudged to be in contempt was not properly before the court; that the facts set forth in the order are not sufficient showing to warrant the judgment order, and that the judgment is not proper on the showing made upon the face of the order of the trial court.

The commitment having been for an alleged contempt committed in open court, without charge, plea, issue or trial, the only record required to be made is the order of commitment. That order, however, should set out the facts constituting the offense so fully and certainly as to show that the court was authorized to make the order, and the facts stated must be taken to be true. (People v. Hogan, 256 Ill. 496, 499.)

The object of requiring these facts to be shown in the record is to enable the reviewing court to see whether they amount to a contempt, and then to determine from them the jurisdiction of the trial court. (6 R. C. L., sec. 49; People v. Saylor, 238 Ill. App. 142.)

In Lester v. People, 150 Ill. 408, it was said, by the court, on page 423, as follows:

“When the contempt consists of something done or omitted, in the presence of the court, tending to impede or interrupt its proceedings or lessen its dignity, or, out of its presence, in disregard or abuse of its process, or in doing some act injurious to a party protected by the order of the court, which has been forbidden by its order, the proceeding is punitive, and is inflicted by way of punishment for the.wrongful act, and to vindicate the authority and dignity of the People, as represented in and by their judicial tribunals. In such cases, although the application for attachment, when necessary to be made, may be made and filed in the original cause, the contempt proceeding will be a distinct case, criminal in its nature, and may properly be docketed and carried on as such, and the judgment entered therein will exhaust the power of the court to further punish for the same act and offense.”

In People v. O’Meara, 216 Ill. App. 173, it was held that, in a proceeding committing a party to imprisonment for contempt of court committed in the presence of the court, such act constituted a criminal contempt, and it was further held that, being a criminal contempt, all of the proceedings must be prosecuted in the name of the People of the State, and that such is the orderly course of procedure under article VI, section 33 of the present State Constitution.

The record proper in the present case does not purport to be entitled in the name or by the authority of the People of the State of Illinois. The order entered appears to be one entered and entitled as one in a civil proceeding.

In Rawson v. Rawson, 35 Ill. App. 505, 508, the late Judge Moran, speaking for the Appellate Court, said:

“Where the punishment is inflicted for an offense offered to the dignity of the court, as for words or acts in the presence of the court insulting to the judge or in violation of the proper order and decorum of the court r.oom, there the people come to demand judgment and punishment, and there the order and all the proceedings should be in their name.”

The order entered also fails to show whether or not plaintiff in error was present in the court at the time the order was entered. The alleged contempt against the court was in its nature criminal, and the order should show the presence in court of the plaintiff in error when the penalty was imposed. (People v. Saylor, 238 Ill. App. 142; Rawson v. Rawson, 35 Ill. App. 505.)

Being of the opinion that the order is insufficient for the reasons above set forth, the judgment of contempt in the circuit court is reversed.

Judgment reversed.


text:
    W. L. Krone, Appellee, v. Chicago National Life Insurance Company, Appellant.
    Opinion filed June 5, 1929.
    Lannes P. Oakes and Lee D. Mathias, for appellant.

      H. A. Evans, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

Appellee sued appellant in the court below upon the common counts to recover $112.72 as per bill .of particulars filed, in which certain items were listed for charges for telegrams, telephone calls, office rent, stationery, etc. The general issue was filed by appellant, and, after a hearing before a jury, a verdict was rendered for the amount of appellee’s claim.

Appellant contends that the controversy grew out of a contract between appellee and a man by the name of Singer, under date of November 21, 1927. By the terms of this contract, appellee, as president of the Great Northern Mutual Union, sold to Singer the books, records, applications, and certain membership lists of said company for a consideration of $3,000, to be paid upon the assignment of said instruments. The contract further provided that appellee contracted and agreed that he would assist the buyer, or any of the assignees of the buyer, in soliciting and in selling insurance to the members of the Great Northern Mutual Union.

J. O. Laugman, witness for appellant, testified that he was employed by the Illinois National Underwriters Company, and was sent to Metropolis, Illinois, the home office of the Great Northern Mutual Union, to go over the list of names of the policyholders of the latter company for the purpose of securing applications for insurance in the Chicago National Life Insurance Company, the appellant; that the policies, when issued by appellant, were forwarded to the witness for delivery to the respective persons applying for them; that the authority of the witness was limited to that of a special agent of appellant for the purpose of delivering policies; that appellee knew that the witness was employed by the Illinois National Underwriters Company.

Attorneys for appellant contended on the trial that whatever charges or claims appellee had were chargeable against either the witness, Laugman, personally, or were items that should be chargeable against the Illinois National Underwriters Company, and that appellant was not responsible therefor.

Appéllee contended and offered evidence on the trial tending to show that the charges made did not grow out of the work between appellee and Singer, and that Laugman was acting as agent for appellant.

The proof in the record as to the liability of appellant is close and conflicting, and the proof of the ■ alleged agency of Laugman is based to a large extent upon his declarations as testified to by appellee.

Appellant contends that the judgment of the court below was not sustained by the evidence; that Laugman was not' authorized by appellant to contract any liability on its behalf to pay the alleged demands of appellee. Appellant further contends that the trial court erred in not granting appellant a new trial, on the ground that counsel for appellee, by unwarranted and abusive argument, prejudiced the minds of the jury so as to prevent them from giving a fair and impartial consideration of the evidence in the case.

The record, with reference to the alleged prejudicial argument of counsel and the attitude of counsel after being admonished by the court, is as follows:

“All these parties connected with the purchase and transfer of the list of policyholders and business of the Great Northern Mutual Union from Mr. Krone were acting together and the act of any one of them was the act of all, and there was not a thing done by any of these parties or corporations but what it was just as much the act of one as it was of the. other and as much for the benefit of one as it was the other, and I don’t care what they say or what they swear.
“Mr. Oakes: There is no proof of that.
“Plaintiff’s counsel (continuing): Talk about there being no proof of that! Why, there is enough evidence here to convict Jesus Christ himself. They all had the same men for officers, occupied the same building to do their crooked business in, and everything this witness, Laugman, and the man, B. William Singer, did down here from the very beginning was done by them as agents and. representatives of all these corporations, just as much for the benefit of one as it was for the other, just as much for the benefit and with the authority of the Chicago National Life Insurance Company and the United States General Agency Company as it was for the Illinois National Underwriters Company, and Mr. Oakes (meaning defendant’s counsel) knows it; and the defendant and the defendant’s witness, J. O. Laugman, were tied up together with this man, B. William Singer, the purchaser of the Great Northern Mutual Union and his assignee, United States General Agency Company, and the whole bunch was a set of Chicago crooked Jews that would do and swear anything.
“To which argument defendant, by its counsel, then and there objected.
“And the Court thereupon sustained the objection by admonishing plaintiff’s counsel to confine his remarks to a proper discussion of the evidence and not to get outside the record.
“Whereupon, plaintiff’s counsel replied, ‘Well, it is the truth, just the same. ’
“And again the Court admonished counsel and directed him to refrain from such further arguments and remarks.”

Counsel for appellee, in their brief, seek to justify their conduct and refusal to abide by the court’s ruling and admonition by saying that there was no evidence in the record that was believable on the part of appellant. Careful examination of the record does not justify counsel’s conclusion or excuse for resorting to unfair methods in obtaining a verdict.

In the case of Panteles v. Arsht, 227 Ill. App. 488, this court held, in reference to a somewhat similar line of prejudicial argument, as follows:

“By no stretch of the imagination can such language be classed as argument. It could not, in any way, assist the jury in reaching a just and proper verdict and should never be uttered in a court of justice. It was highly calculated to poison and prejudice the minds of those whose duty it was to decide the case according to the law and the evidence. The fact that the court sustained an objection thereto did not destroy its pernicious effect. Counsel and litigants should understand that verdicts so obtained are worthless. In the very recent case of Eshelman v. Rawalt, 298 Ill. 192, the Supreme Court reversed the judgment because of improper remarks and conduct of counsel for appellee even though the trial court had sustained objections thereto.”

We are of the opinion that appellee’s argument after adverse rulings and admonition by the court was extremely prejudicial to the rights of appellant, and that the same was reversible error in view of the fact that the evidence as to the liability of appellant was close and conflicting.

Accordingly, the judgment of the court below is reversed, and the cause remanded for a new trial.

Reversed and remanded.


text:
    The McCaskey Register Company, Appellant, v. Edgar H. Little, Appellee.
    Opinion filed June 5, 1929.
    Robert E. McG-lynn, for appellant.
    Louis Beasley and Edward O. Zulley, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

Appellant sued appellee in the court below on a promissory note signed by appellee, which was given in part payment for a combination physician’s file and desk, under a written order or contract signed by- appellee and delivered to one of appellant’s salesmen.

The written sales contract, which appellee signed, requested appellant to ship to appellee, at Bast St. Louis, Illinois, the combination desk and file, together with certain supplies, for which appellee agreed to pay $310, reciting that there was $25 cash paid down, and the balance to be paid in fifteen monthly instalments of $19 each, beginning 30 days from date.

The contract was dated September 1, 1926, and on its face contained the following statement:

“No goods sold on trial. It is expressly agreed that this order and conditions on the back cover all agreements between the parties, and cannot be altered or varied by any verbal agreement or understanding. Duplicate to purchaser.”

On the back of the contract was indorsed the following guarantee:

“All defects in manufacture to be made good for a period of one year, and if said system should get out of order through ordinary and proper use during period of one year, all necessary repairs and adjustments to be made without charge if the system is returned to the factory; and the company agrees to return said system after repair to original point of shipment1 and pay shipping charges one way. Holder of guarantee to pay charge one way. Delivery to be F. O. B. Alliance, Ohio. . . . We Make Positively No Other Guarantee as to Any of Óur Products Other Than Made Herein.”

The case was originally. tried in a justice court, where judgment was rendered in favor of the plaintiff, and, on appeal to the city court and trial before a jury, a verdict was rendered in favor of appellee, and appellant prosecutes this appeal.

Appellant filed its affidavit in the city court claiming a- balance due on the contract of $273, with interest. Appellee filed an affidavit of merits, in which he claimed that he had a valid claim for damages against appellant arising out of the breach of warranty in the purchase of the desk or file, and for money paid appellant during the time he relied upon the promises and representations made by appellant that said alleged warranty would be made good by appellant at its expense, and claimed that there was due $139, representing the money which appellee had paid to appellant on account of said contract; that appellee’s claim was based upon the alleged facts that appellee purchased through appellant’s traveling salesman, the duly authorized agent of appellant, the desk in question, without appellee having an opportunity to see the desk prior to its purchase; that appellant’s agent warranted that said desk, when delivered to appellee, would be in first-class condition; that, in the event of any defects in said desk, appellant would, at its own expense, remedy the same within one year, or would take back the goods and refund to appellee all moneys paid by him; that appellee relied upon these representations, made the payments in question, but that appellant failed to make good its warranty, and appellee claimed the right to a refund of the money, which had been paid to appellant on the purchase price of said desk. .

Appellee testified that he did not see the desk before purchasing it; that the same was purchased through a salesman of appellant, who came to his office September 1, 1926; that the desk was later delivered at his office, about 10 days thereafter, at a time when he was not in the office; that appellee first saw the desk on September 10, and stated that the leaves of the desk were scratched; that part of the shifting apparatus on the desk was broken; that some of the drawers were warped and would not slide; that the material of the desk was worm-eaten, and had the appearance of being secondhand or used; that, against objection of counsel for appellant, appellee was permitted to testify that, at the time he purchased the desk, the salesman orally guaranteed that, if the desk was not first-class and new in every respect, appellant would make it right or return all moneys paid by appellee.

Appellee further testified, over the objection of counsel for appellant, that, after he examined the desk on September 10, he wrote appellant to send their agent back, and that the salesman, who had made the sale, returned to his office, and told, appellee that he, the salesman, would send and get another desk for appellee, and also told him not to pay any further money until the desk arrived at appellee’s office. Appellee kept the desk in his office and used the same, and on at least one occasion ordered additional supplies to use in connection with the register system, for which purpose the desk was used to keep accounts of appellee.

Appellee further testified that he sent remittances of $57 on July 29, 1927, and $57 on December 7,-1926; that, after appellee had been sued before a justice of the peace, he mailed a check for $95 to appellant, which represented the instalments then due on the note, but evidently from the record it appears that the same was either not accepted by appellant or that payment on the check was subsequently stopped by appellee.

On cross-examination, appellee testified that the first time he saw the desk was on September 10; that the salesman came back about September 14; that appellee admitted signing the certificate of installation (offered in evidence as Exhibit “Gr”), which on its face purported to show the date that the order was given, the date entered by appellant on its books, and the date of shipping, which was September 20, 1926, with a further statement of the amount of the contract, and the terms thereof. On the back of this exhibit, which appears to be dated October 5. 1926. is the following:

“Certificate of Installation.
“The agent will have the purchaser sign the following certificate and return the same without delay to The MeCaskey Register Company.
“To the MeCaskey Register Company.
“The Register purchased of your company has been installed and inspected by your agent, Mr............. He has given satisfactory instructions on operation of the systems.
(Signed) Edgar H. Little, Purchaser.”

Appellant contends that the trial court erred in permitting appellee to testify as to the declarations and statements of appellant’s salesman, whereby appellee sought to change and to vary the terms of the written contract and guaranty, which appellee had signed, and which contained the terms of the purchase contract. No competent proof was offered by appellee tending to show that appellant’s salesman had any express or implied authority to change or vary the terms of the written contract. The contract expressly provided against the making of any other guaranty other than the one indorsed on the purchase contract.

The alleged parol agreement of appellant’s salesman, as testified to by appellee, was incompetent evidence, and was insufficient to bind appellant or vary the terms of the written agreement. (Bixler v. Henson, 197 Ill. App. 101.)

One, who seeks to enforce a warranty imposing mutual and dependent obligations and covenants, must show compliance upon his part. (Eichelroth v. Long, 156 Ill. App. 108.)

Under the express terms of the written guaranty, if for any reason the goods purchased by appellee were defective, it was the duty of appellee to return the same to appellant’s factory for proper repairs and adjustment. All of the alleged defects in the desk equipment were apparently visible and open to inspection at the time he signed his certificate of installation in October, 1926, and yet he continued to use the equipment thereafter, and to make payments on his purchase for a period of more than a year.

Section 48 of the Uniform Sales Act, Cahill’s St. ch. 121a, ¶ 51, provides as follows:

“The buyer is deemed to have accepted the goods . . . when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.”

Section 49 of the same Act, Cahill’s St. ch. 121a, ¶ 52, also provides as follows:

“In the absence of an express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know of such breach, the seller shall not be liable therefor.”

In providing for the remedies of a buyer for breach of warranty, section 69 of the same Act, Cahill’s St. ch. 121a, ¶ 72 (3), provides:

“Where the goods have been delivered to the buyer, he cannot rescind the sale if he knew of the breach of warranty when he accepted the goods, or if he fails to notify the seller within a reasonable time of the election to rescind.”

In Goodlatte v. Acme Sales Corp., 229 Ill. App. 610, on page 614, it was held:

“Where goods have been received by the buyer and retained by him without objection for a substantial period of time, it is generally a question of fact for the jury as to whether the time that has elapsed before the complaint is made is a reasonable time, but where all reasonable minds would reach the conclusion that the goods were retained an unreasonable length of time before any complaint was made, it then becomes a question of law for the court. (Eureka Waist Co. v. Herrick Bros. & Co., 226 Ill. App. 316.)”

At the close of all the evidence, appellant moved the court for an instructed verdict in favor of appellant and, in view of the evidence offered by appellee in defense, we are of the opinion that the court erred in not directing a verdict for appellant.

For the reasons aforesaid, the judgment of the city court of East St. Louis is reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    John Williams, Appellee, v. Southern Railway Company, Appellant.

      Opinion filed June 5, 1929.
    Kramer, Kramer & Campbell and it. E. Costello, for appellant.
    Louis Beasley and Edward C. Zulley, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

Appellee, John Williams, sued the Southern Bailway Company, a corporation, appellant, in an action on the case in the city court of East St. Louis to recover damages for personal injury. ' The declaration alleged that appellee was employed by appellant as a section hand on one of the main lines of its railroad track, which extends through a part of the City of East St. Louis, through the States of Illinois, Indiana, and other States in the Union; that on May 2, 1928, the day on which appellee received his injury, appellee was engaged in interstate commerce as a common carrier by railroad through various named States in the Union, including Illinois.

The declaration further alleges that while appellee was so engaged in interstate commerce, appellant, by one of its agents, servants, and employees, to wit, another section hand, carelessly, negligently, and improperly struck a heavy blow, with what is commonly called a spike maul, upon certain rocks, gravel, cinders and chat, which were lying just beneath the face and eyes of the plaintiff, while he was so at work and in the exercise of due care and caution for his own safety, as such section'hand upon appellant’s said interstate track; that, as a result of appellant, by its said servant and agent aforesaid, so striking said rocks, gravel, cinders and chat, they were knocked and thrown upon and against appellee’s face and into Ms eyes, and, as a result of said rocks, gravel, cinders and chat striking appellee in Ms eyes, appellee’s left eye was so badly bruised, injured, cut and contused as to destroy the sight of the same.

The declaration further alleged that appellant, by and through the exercise of ordinary care on the part of its servant, agent and employee using said spike maul, knew, or could have known, that, on account of the plaintiff being so close to the place where said agent of appellant was about to strike with said spike maul, if he, the said servant and agent of the appellant, struck such rocks, gravel, cinders and chat, the same would be knocked and thrown against appellee’s face and eyes. Appellee further alleges that he did not know and had no means of knowing, by the exercise of ordinary care, in time to protect his face and eyes from such flying rocks, gravel, cinders and chat, that said appellant, by its said agent' and servant, was about to strike said rocks, gravel, cinders and chat with said spike maul. ’

The declaration further alleges that appellee’s left eye was permanently injured, and that, as a result of the injury to his said left eye, the sight of Ms right has been impaired.

To this declaration a plea of not guilty was filed by appellant, and, after a hearing before a jury, there was a verdict in favor of appellee in the sum of $2,500, upon wMch judgment was entered after a motion for a new trial had been made and overruled.

Proof showed that appellant, at the time in question, was engaged in the business of interstate common carrier by railroad, its main line extending through St. Clair county, Illinois; that appellee was employed by appellant as a track man or section man, and that he, with other men of the section gang, was working on the railroad tracks of appellant spacing and tamping ties; that appellee was working with a man by the name of Yerser; that two other employees of the gang were working together placing ties, and that one of these other employees, named Wood, just immediately before appellee was injured, was about two or three feet away when he struck a blow with the spike maul upon some rocks and cinders, within two or three feet of where appellee was holding a crowbar in the act of raising one of the ties. Appellee testified that, immediately after he heard the maul used by Yerser strike the rock, something struck him in the left eye; that Yerser was working nearest to him at the time; that soon after the accident other employees noticed appellee wiping water away from his eye with a handkerchief; that appellee was bending over at the time he was injured, and did not know that Yerser was about to strike the rock; that appellee worked the rest of the day after the injury, which occurred about 2 o’clock in the afternoon. About five days later he was examined by two doctors.

Appellee further testified that he had been unable to see out of his left eye since the 15th of May, 1928. Testimony was offered on the part of appellee by an eye specialist that appellee’s left eye was injured, and that he had a loss of about 90 per cent vision in his left eye, and that, by reason of the injury to the left eye, the sight of the right eye was impaired.

Testimony was offered on the part of appellant to the effect that appellee had told several witnesses that dust had blown in his eyes, and there was further testimony offered on the part of appellant’s medical witness to the effect that the condition of appellee’s eyes was due to a constitutional condition in his nose, and was not occasioned by any injury to his left eye.

Appellant contends that the evidence shows that appellee did not receive the injury for which he is suing in the manner in which he claims to have received the same, and that his condition was not caused by any injury that he had received, but is caused by a constitutional disorder in appellant’s nose. It is further contended that there was no evidence that appellant was guilty of negligence, and it is argued that appellee assumed the risk incident to his employment.

It is also argued that the court erred in overruling appellant’s peremptory instruction offered at the close of appellee’s evidence and again at the close of all of the evidence, and that the trial court erred in giving to the jury certain instructions offered by appellee.

The court, at the request of appellee, gave the following instruction to the jury:

“The Court instructs the jury that if you believe that the plaintiff has proven by a preponderance of the evidence in this case that on the date of his alleged injury the defendant was engaged in interstate commerce as a common carrier by railroad between various states in the Union, to wit: Illinois, Indiana, Kentucky, Tennessee, Virginia, West Virginia, Maryland and other states; and if you further believe from a preponderance of the evidence that the plaintiff was employed in interstate commerce by the defendant on the date of the alleged accident, and if you further believe from a preponderance of the evidence that the plaintiff on said date was injured as a direct and proximate result of another employe’s striking certain rocks, gravel, cinders and chat with a spike maul, as alleged in the plaintiff’s declaration, then the plaintiff is entitled to a verdict in this case, provided, further, you believe from a preponderance of the evidence that the plaintiff himself was in the exercise of due care and caution at and immediately prior to the accident.”

This instruction was erroneous inasmuch as it undertook to state the necessary grounds for recovery, and omitted altogether the question of defendant’s negligence. (See Swiercz v. Illinois Steel Co., 231 Ill. 456.) From this instruction the jury would undoubtedly be led to believe, in the language of the instruction, that, if appellee was injured as a result of another employee striking certain rocks, gravel, cinders and chat with a spike maul, then plaintiff was entitled to recover. This instruction overlooks and leaves out the necessary ingredient or fact that it must be shown that the employee was negligent, and that his negligence was a proximate cause of appellee’s injury.

There was no other instruction offered by either appellant or appellee which required the jury to find that the injuries suffered by appellee were due to the negligence of appellee’s coemployee. The.evidence in the record is close and conflicting on the question of appellant’s liability, and, in our opinion, the giving of this instruction was reversible error — particularly so, in view of the fact that no other instructions were given which enlightened the jury as to what was necessary to be proved as to appellant’s negligence before there could be a recovery.

Counsel for appellee contend that the use of the words “as alleged in plaintiff’s declaration” was sufficient to refer the jury to the allegation in the declaration that the coemployee’s striking of certain rocks, gravel, cinders and chat with a spike maul was negligently occasioned. There is nothing in the record to show that the jury had any knowledge of the allegation in the declaration, and we do not think that the use of these words in the instruction cures the defect in the same, which would allow a recovery without proof of negligence on the part of the coemployees, which was the proximate cause of the injury.

.Appellant contends that appellee cannot recover, in any event, in this case on the ground that appellee assumed the risks incident to the negligence of his coemployee.

In Reed v. Director General of Railroads, 258 U. S. 92, 95, 66 L. Ed. 480, at page 482, it was held as follows:

“In actions under the Federal act, the doctrine of assumption of risk certainly has no application when the negligence of a fellow servant, which the injured party could not have foreseen or expected, is the sole, direct and immediate cause of the injury. To hold otherwise would conflict with the declaration of Congress that every common carrier by railroad, while engaging in interstate commerce, shall be liable to the personal representative of any employee killed while employed therein, when death results from the negligence of any officers, agents or employees of such carriers.”

In the case of Pennsylvania R. Co. v. Gavin, 234 Ill. App. 28, this court held that an employee, under the Federal Employers’ Liability Act, Cahill’s St. ch. 114, ¶ 321 et seq., does not assume the risk of negligence from fellow employees, with certain exceptions that do not apply to the facts in this case. -

In view of the fact that this cause is remanded for another trial, we deem it unnecessary to discuss any further evidence appearing in the record.

For the reasons aforesaid, the judgment of the city court of East St. Louis is reversed and the cause remanded.

Reversed and remanded.


text:
    Grover Ogden, Administrator of the Estate of Virginia Lee Ogden, Deceased, Appellee, v. Albert J. Keck, Appellant.
    Opinion filed June 5, 1929.
    Farmer & Klingel, for appellant.
    P. K. Johnson, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

This is a suit by appellee, as administrator, to recover damages of appellant for negligently causing the death of appellee’s 6-year-old child, who was struck by a truck controlled and operated by appellant.

The declaration, in general terms, alleged that appellant so carelessly, negligently and improperly drove his truck that he caused the death of appellee’s intestate by running said truck over the deceased.

The case was tried before a jury, who rendered a verdict in favor of appellee for $1,400, and, after motion for a new trial was overruled, judgment was entered thereon.

The proof shows that the injury occurred at the intersection of St. Louis and Fritz Streets in the City of Lebanon. St. Louis Street runs in an easterly direction, and is intersected by Fritz Street, a north and south street. One block west of the Fritz Street intersection State Highway No. 12 runs into St. Louis Street from the south, and from that point runs eastward over St. Louis Street to and beyond the city limits of Lebanon. St. Louis Street is paved with brick, and is about 50 feet in width west of Fritz Street. East of Fritz Street, on St. Louis Street, there is a concrete roadway, 18 feet in width with a black line in the center.

Appellant was engaged in the trucking business, and, at the time in question, was driving a large auto truck. On July 30, 1927, at about 4 o’clock in the afternoon, appellant was driving eastward toward Fritz Street on St. Louis Street on the south or right-hand side of the road. As appellant approached Fritz Street, appellee’s intestate and her older sister and brother were standing on the sidewalk or curb at the northeast corner of the intersection, which was the side of the street opposite the one on which appellant was driving with his truck. While these children were standing near the curb, the witness, Harry Ochs, passed them going west in his truck along the north side of St. Louis Street. Ochs’ truck passed appellant ’s truck either at or near the west side of the intersection. The testimony shows that, as appellant approached the intersection, he was going from 10 to 15 miles per hour, and that, at the time of crossing the intersection, he was traveling at the rate of about 10 miles per hour.

The evidence in the record as to circumstances surrounding the happening of the alleged injury is close and conflicting.

From the testimony produced by witnesses for appellee, it appears that appellant, while driving east across the intersection, turned to the left of the center black line as appellee’s intestate was crossing from the north side of the crosswalk, and that the left front fender of appellant’s truck struck her, knocking her down, and that the' left rear wheel of his truck ran over her, causing her death a few hours later; that the impact occurred about 3 feet .north of the center line of St. Louis Street near the crosswalk, and that, as a result of the impact, the girl was carried or dragged about 10 feet east of the point of impact, and the truck then traveled about 25 feet to the southeast before stopping; that, before the collision, the girls were walking across the roadway, and, just before the injury, the older girl ran back to the north side of the street, while the deceased evidently became confused or frightened at the approaching truck, and, while running south, was struck by the front of the truck.

The testimony of witnesses offered on behalf of appellant tended to show that appellant was driving his truck on the right side of the center of the roadway, and that, without previous warning, appellee’s intestate broke away from her older sister, and ran directly into the path of appellant’s truck some 6 or 7 feet away, and that the left rear wheel of the truck ran over the deceased; that appellant endeavored to avoid the collision by turning his truck to the right and driving off the,roadway.

Appellant contends that the record shows that the death of appellee’s intestate was not caused by any negligence of appellant, but that her death was due to an unavoidable accident; that the court erred in not giving a peremptory instruction for appellant at the close of appellee’s evidence, and in refusing a peremptory instruction offered at the close of all the evidence.

What is the proximate cause of an injury is ordinarily a question of fact, to be determined by the jury from a consideration of all attending circumstances, and it can only arise as a question of law when the facts are not only undisputed but are also such that there can be no difference in the judgment of reasonable men as to the inferences to be drawn from them. (Phillabaum v. Lake Erie & W. R. Co., 315 Ill. 131, 135.)

Appellant, while driving the truck in question, was bound to recognize the fact, when he had knowledge that children were about to cross the street, that they might be unmindful of the danger, and it was his duty to exercise reasonable care under the circumstances. (Morrison v. Flowers, 308 Ill. 189.)

The proof offered on behalf of appellee tended to show that appellant was driving on the wrong side of the street, and that his car was headed toward appellee’s intestate as she was about to cross the street at the crosswalk; that no previous warning was given of his approach to the crossing, and that it was a question of fact for the jury to determine from all the circumstances whether the driver was exercising that degree of care imposed upon him under the law as operator of the truck. After careful consideration of all the evidence, we do not feel warranted in holding that the verdict is manifestly against the weight of the evidence.

It is not contended by appellant that appellee’s intestate, who was 6 years of age, was guilty of contributory negligence, which barred appellee, from a right to recover damages in this suit. Under the decision, it is clear that such claim could not be maintained even if urged.

The jury were fully instructed at appellant’s request as to the law applicable to the facts, and no complaint is made as to the giving or refusing of instructions. The only other error urged by appellant is that the trial court erred in refusing to permit appellant to testify concerning the happening of the injury.

Appellee, as administrator of the estate of Virginia Lee Ogden, prosecuted his suit to recover damages for the wrongful death of his intestate for the benefit of the next of kin under the provisions of the statute.

Neither appellee nor any of the next of kin of the deceased testified as witnesses on behalf of appellee, and, when appellant was tendered as a witness in his own behalf, his testimony was objected to by counsel for appellee for the reason that he was incompetent to testify under the provisions of section 2 of the Evidence Act, Cahill’s St. ch. 51, ¶ 2. Appellant did not bring himself within any of the exceptions provided for in the Evidence Act, which would permit him 'to testify as a witness.

Appellant urges that, under the holding of the Supreme Court in the case of Van Meter v. Goldfarb, 317 Ill. 620, he should have been permitted to testify in view of the fact that Helen Ogden, one of the next of kin, was present at the time of the injury to her sister, and was available as a witness at the time of the trial, but was not called as a witness on behalf of either party; that to thus permit the failure of appellee to call as a material witness one of the next of kin of the deceased and thus render appellant incompetent to testify works a hardship and injustice to appellant.

There is some merit in appellant’s contention in view of the fact that courts in other jurisdictions have held that similar provisions to our Evidence Act do not apply to actions for wrongful death, in view of the fact that the real parties in interest are the next of kin, and do not come under the express provisions of inhibition to testify. (See 40 Cyc., page 2269, and decisions cited therein.)

The Supreme Court, in the case of Forbes v. Snyder, 94 Ill. 374, had occasion to construe our Evidence Act as applicable in suits by administrators for wrongful death, which holding, in our judgment, is controlling in the case at bar.

We quote from page 378 of the Forbes case, as follows:

“Defendants were offered as witnesses generally as to matters anterior to the death of Snyder, and were held incompetent. This ruling we hold to be correct. In this action the adverse party sues as administratrix, and in such case a party or person interested is expressly excepted from the operation of the statute allowing parties to testify on their own motion in their own behalf. But it is insisted that this clause is to be confined to cases wherein the result of the suit must be to increase or diminish the estate of the deceased person, and that the damages in this case do not in any proper sense constitute a part of the estate of deceased, — are not assets for the payment of debts or for distribution to heirs or devisees. It is true these damages are not strictly any part of the estate, but they constitute a fund cast upon his next of kin by means of his death. They surely come within the letter of the statute, and, in our judgment, fall within its spirit. The tongue of Snyder is silent as to the events which led to his death. The same reasons which justify the limitation of the general statute so as to silence adverse parties where the effect of the proceeding is to increase or decrease the estate, seem equally cogent in a case like the present.”

We are not aware that the above ruling of the Supreme Court has been in any way modified or distinguished. The Goldfarb case only permits a defendant to testify where either the administrator or next of kin has testified in the first instance to the facts concerning the happening of the accident, and, in that event, the defendant is then permitted, under the provisions of exception 3 of section 2 of the Evidence Act, Cahill’s St. ch. 51, ¶ 2, to testify to the same transaction.

For the reasons aforesaid, the judgment of the circuit court is affirmed.

Affirmed.