text:
    Anna B. Sweesy, Individually and as Administratrix of the Estate of Harry M. Hess, Deceased and as Guardian of Harry M. Hess, Jr. (Complainant and Cross-Defendant), Appellant, v. Alfred C. Hoy, et al. (Defendants and Cross-Complainants), Appellees.
    Gen. No. 31,735.

      Witnesses — when beneficiaries of trust incompetent to testify against administratrix of deceased beneficiary and guardian of his son. In an action by one as administratrix of the estate of one of four beneficiaries of an active trust, and as guardian of the decedent’s minor son by his first wife, to set aside as a fraud on heirs and creditors a conveyance by the trustee conveying, at the request of the three living beneficiaries, title to the trust property ultimately to a new trustee for the benefit of the three living beneficiaries and also the second and living wife of the decedent, and both declarations of trust having been signed and sealed by the respective beneficiaries, the three living beneficiaries, who are parties defendant with the trustees and others, are incompetent to testify for the defendants as being within the prohibition of Cahill’s St. ch. 51, ¶ 2, that no person directly interested in the event of a civil action shall testify against an adverse party suing as administrator or guardian when not called by the adversary.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. Oscar Hebel, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Reversed and remanded.
    Opinion filed November 23, 1927.
    Rehearing denied December 9, 1927.
    Earl J. Walker and Alanson C. Noble, for appellant.
    Carnahan & Slusser and George W. Thoma, for appellees.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This cause was appealed from the superior court to the Supreme Court, and subsequently, on the ground that a freehold was not involved, and there was no other question which would give that court jurisdiction, it was transferred to this court. Sweesy v. Hoy, 324 Ill. 319. In the opinion in that case, the general purport of the pleadings is stated, so that it becomes unnecessary in this opinion to reiterate them.

The questions that arose before the master, before whom the evidence was taken, and before the chancellor, who considered the master’s report and the exceptions thereto, were whether the complainant, as administratrix of the estate of Harry M. Hess, deceased, husband by a former marriage of complainant’s deceased daughter, and as guardian of Harry M. Hess, Jr., his only child, was entitled to an undivided 1-10 interest in the personal property in the hands of the trustees, on the ground that the alleged conveyances from the Chicago Title & Trust Company to Preschern, and from the latter to the Union Bank of Chicago, were fraudulent as to the heirs and creditors of Harry M. Hess, or whether the cross-defendant, Mary Olive Hess, widow of Harry M. Hess, deceased, was entitled to an undivided 1-10 interest in the personal property in question by way of a resulting trust.

To reverse the decree that was entered, and which established a one-tenth interest in the property in the widow, Mary Olive Hess, it is now claimed by the complainant that the defendants and the cross-complainant were permitted to introduce evidence over the objection of the complainant in support of the claim of the alleged resulting trust, which was incompetent and without which there is no sufficient support for the decree.

The complainant, in support of the allegations of her bill proved that on January 12, 1923, one Ahern conveyed the property in question to the Chicago Title & Trust Company; that on the same date, the Chicago Title & Trust Company executed a written declaration of trust, in which it stated that it would hold the property in question, being 412 acres, more or less, as trustee, “for the ultimate use and benefit of the following named persons according to the respective interests herein set out, to-wit: Carl D. Baker, an undivided 5/10ths interest, Alfred C. Hoy an undivided 3/10ths interest, John L. Hess an undivided 1/10 interest, Harry M. Hess an undivided 1/10 interest; ’ ’ that the above-named declaration of trust, was signed and sealed by all four of the above-named beneficiaries ; that on October 1, 1923, Harry M. Hess died, leaving Harry M. Hess, Jr., a minor child nine years of age, as his only surviving heir, and his widow, Mary Olive Hess, the defendant and cross-complainant; that on October 3, 1923, two days after the death of Harry M. Hess, the Chicago Title & Trust Company, a defendant, upon the written request of Baker, Hoy and J. L. Hess, brother of the deceased, conveyed the title to the property in question to one George T. Preschern, Secretary of the Union Bank of Chicago; that on the same day Preschern conveyed the property to the Union Bank of' Chicago, and on the same day, the Union Bank of Chicago executed a trust agreement, in which it was stated that it, the Union Bank of Chicago, would hold the property in question, being 412 acres, more or less, “for the ultimate use and benefit of the following named persons according to the respective interests herein set out, to-wit: Carl D. Baker 5/10ths share, Alfred C. Hoy 3/10ths share, John L. Hess 1/10 share, and Mary Olive Hess 1/10 share;” that the trust agreement in question was signed by the Union Bank of Chicago, and signed and sealed by the four just mentioned beneficiaries; that on April 25, 1924, she, the complainant was appointed administratrix of the estate of her son, Harry M. Hess, deceased, and was at the same time the duly appointed guardian of Harry M. Hess, Jr., his surviving minor son.

Having made that proof, the complainant rested, and thereupon the defendant and cross-complainant, Mary Olive Hess, introduced evidence in defense and in support of her cross-bill in an endeavor to show that, notwithstanding the evidence introduced on behalf of the complainant, administratrix and guardian, she, Mary Olive Hess, was entitled to a resulting trust in a 1/10 interest in the property in question. In making her proof before the master she was permitted to introduce in evidence the testimony of Baker, J. L. Hess and Hoy, all of whom had signed and sealed the original declaration of trust before the death of Harry M. Hess, in which it was stated that Harry M. Hess was entitled to an undivided 1/10 interest in the property in question. They were permitted to testify to an alleged series of facts, all of which transpired prior to the death of Harry M. Hess. As a result of the introduction of that' evidence, over the objection of the complainant, it is now contended by the complainant that, under ¶ 2, Ch. 51 of the statutes of the state (Cahill’s St. 1925, ch. 51, ¶ 2), Baker, J. L. Hess and Hoy being parties to the suit, and as she claims, directly interested in its result, they were incompetent as witnesses, and that, as without their testimony the evidence failed to establish a resulting trust, but made out the complainant’s cause of action, the decree should be reversed.

The statute, ¶ 2 (supra), provides that “No party to any civil action * * * or person directly interested in the event thereof, shall be allowed to testify therein of his own motion or in his own behalf * * * when any adverse party sues or defends as. the * * * Administrator * * * of any deceased person, or as guardian * * * unless when called as’a witness by such adverse party so suing or defending.”

Section 2 of Chap. 51, Cahill’s St. 1925, ch. 51, ¶ 2, has been considered many times. It has been held that the purpose of the statute is to protect estates from the assault of strangers, and relates to proceedings wherein the decision would tend to reduce or .impair it, Pigg v. Carroll, 89 Ill. 205; Fleming v. Mills, 182 Ill. 464; Alward v. Woodward, 315 Ill. 150, 162; that it was enacted to guard against the temptation to give false testimony, Van Meter v. Goldfarb, 317 Ill. 620; that at the time of the enactment of ¶ 2, the words “person having a direct interest in the event of such action, suit or proceeding,” had a well-known meaning in the law of evidence, and that they were presumed to be used to express that meaning, Off v. Trapp, 109 Ill. App. 49; that ¶ 2 should be construed according to its spirit and not literally or technically, Kitz v. Scudder Syrup Co., 199 Ill. App. 605; that generally where the parties to a transaction are living, they are, as to giving evidence, on a plane of equality, and each may testify, but when one is dead, the others are not permitted to give evidence, and thus take advantage of the heirs of the deceased, who may be wholly ignorant of the facts; that doubts are to be resolved in favor of the competency of a witness, Christiansen v. Dunham Towing & Wrecking Co., 75 Ill. App. 267; that if the interest is of a doubtful nature, it goes to the credibility of the witness, and not to his competency, Stephens v. Hoffman, 263 Ill. 197; that an interest consisting of an inchoate dower right does not render a witness incompetent, Pain v. Farson, 179 Ill. 185; that the interest of a party will be determined by matters of substance, rather than by those of form, Bardell v. Brady, 172 Ill. 420; that if the interest is direct, certain and vested, its extent is immaterial, Bellman v. Epstein, 202 Ill. App. 247; that the interest must be a legal interest in the outcome of the suit, and be certain, direct, and immediate, Ackman v. Potter, 239 Ill. 578; Flynn v. Flynn, 283 Ill. 206; Holland v. People’s Bank & Trust Co., 303 Ill. 381; that the test of interest is whether the witness will gain or lose by the suit, or whether the verdict can be given in evidence either for or against him in another suit. Feitl v. Chicago City Ry. Co., 211 Ill. 279; Jones v. Abbott, 235 Ill. 220; Barnes v. Earle, 275 Ill. 381; Bellman v. Epstein, supra; that a witness whose interest is fixed and cannot be affected by the result of the suit, is competent, Weaver v. Ritchie, 152 Ill. App. 130; that the interest to be a disqualifying one, must be legal, certain and immediate, either in the result of the suit or in the record as an instrument of evidence in support of his own claims in another action, Stephens v. Hoffman, 263 Ill. 197; Allen v. North, 271 Ill. 190; that the interest must be present, certain and vested, and not an interest uncertain, remote or contingent, Southern Collegiate Inst. of Albion v. In re Avery’s Estate, 157 Ill. App. 568; that where the adverse party sues in a representative capacity, a party defendant is not competent for his codefendant, even though not a necessary party and though he expressly waives the benefit of his testimony as to himself, Sullivan v. Corn Products Ref. Co., 147 Ill. App. 227; that the interest of the party may lie solely in his liability for costs in the event of defeat, Smith v. Smith, 168 Ill. 488; that where A conveyed property to B, and then conveyed- it to C, and C brought a bill against B’s heirs to have the first conveyance set aside, A was not a competent witness against B’s heirs, McCann v. Atherton, 106 Ill. 31; that the complainant in a cross bill is incompetent as a witness in her own behalf to establish a resulting trust, where those defending against such claim are heirs of her deceased husband, Boyd, v. Boyd, 163 Ill. 611; that the complainant in a suit against the heirs at law, to compel a deed on the ground that their ancestor held in trust, is not a competent witness, Holderman v. Gray, 130 Ill. 443; and that defendants who seek to disprove the title of a deceased person whose heirs are asserting such title as the complainant’s in a bill for partition, are not competent witnesses. Wilson v. Wilson, 158 Ill. 567.

Baker, J. L. Hess and Hoy were parties defendant to the original bill filed by the complainant as the administratrix and guardian, and they were, also, defendants to the cross bill of May Olive Hess, widow of the deceased.

At the time of Harry M. Hess’ death on October 1, 1923, on the face of the writings that passed the title to the property to the Chicago Title & Trust Company, and expressly declared the interests of all the parties — one of which writings, the declaration of trust, was signed and sealed by the four whose interests represented the whole transaction, and the whole of the property — Harry M. Hess was admittedly and affirmatively stated to be the absolute owner of an undivided 1/10 interest in the whole of the trust estate. With the signed and sealed documentary evidence of the title and the mutual rights of the parties in that condition, and without any act on the part of Harry M. Hess, two days after his death, Hoy, J. L. Hess and Baker, executed a series of new documents, by which, on the face of them, they repudiated their former signed and sealed trust agreement, which set forth that Harry M. Hess owned an undivided 1/10 interest, and undertook to annul and wipe out their former written and sealed agreement that he was the owner of an undivided interest, and set up and declare that neither Harry M. Hess, nor his estate had any interest whatever in the property, but that they, Hoy, J. L. Hess, Baker and Mary Olive Hess, together, owned it all. In undertaking to justify their conduct, they were called to the stand by Mary Olive Hess, and permitted to testify that Harry M. Hess did not furnish any part of the consideration that was given for the property in question, when it was originally bought, and that the consideration for the undivided 1/10 interest which had been stated by the three to be in him, was furnished by Mary Olive Hess, and that at no time did he have any interest in the property. Of course, if they had no right after his death to change the terms of the trust so as to make Mary Olive Hess the beneficiary, instead of Harry M. Hess, they violated their authority in agreeing upon and designating her, a stranger, as having a 1/10 interest in the trust estate, and a court of equity properly guarding a minor’s interest, such as complainant’s ward, would not allow them to charge that interest with any part of the expense it cost to establish the trust in the Union Bank of Chicago instead of the Chicago Title & Trust Company.

It is not practicable to set forth here even a reasonable summary of all the testimony of Hoy, J. L. Hess and Baker as to what transpired prior to the death of Harry M. Hess in regard to the history of the purchase of the property and the creation of the four trust estates in Hoy, J. L. Hess, Baker and Harry M. Hess, and then the creation of the four trust estates in the first three and Mary Olive Hess.

The record shows that all three, Hoy, J. L. Hesand Baker, were interested in the litigation and its result in many ways. They were interested in explaining why they had announced in a signed and sealed instrument that Harry M. Hess was the owner of an undivided one-tenth interest when they knew at the time, according to their testimony, that he was not; they were interested in explaining away the charge of fraud, which was made in the bill and which the evidence for the complainant suggested; they were interested in the suit because if the complainant succeeded in proving that Harry M. Hess was at the time of his death the owner of a one-tenth interest, they would have to bear themselves alone the expense of the transfers from the Chicago Title & Trust Company to Preschern, and from the latter to the Union Bank of Chicago and the trustee’s expense, provided for in the trust deed, for the time intervening; they were interested in the question whether or not they would have to pay some part of the court hosts involved in the litigation itself, for if the complainant succeeded, the three defendants, together with the cross-complainant, would be properly mulcted in costs; and they were interested in an effort to support the transfer of the property to Preschern and then to the Union Bank of Chicago because, according to their testimony, the transfer had permitted them to work out a saving by way of a large discount on an indebtedness of the trust estate. But whatever the reasons which moved them to make the change and to eliminate Harry M. Hess’ heir as a beneficiary, they were directly interested in supporting the change which they had wrought. Further, where the total beneficial interest of an active trust is held by four different parties, and each interest is an undivided one, each beneficiary is directly interested in the other three and as to who they are; and especially.is that true where, as here, any three may upon agreement change the trustee.

Inasmuch, therefore, as in our judgment the witnesses Baker, J. L. Hess and Hoy were incompetent, under the statute, to testify as to conversations and transactions had with Harry M. Hess in his lifetime, and as without their testimony, as it appears in the record, there is not sufficient evidence to support the claim of the cross-complainant, or to overcome the case made out by the complainant herself, the decree will be reversed and the cause remanded for a new trial.

Reversed and remanded.

Holdom and Wilson, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Holdom.

license: Public Domain

text:
    Andrew Lino and Lee W. Wolfe, trading as Lino & Frank, Appellees, v. Northwestern Pacific Railroad Company, Appellant.
    Gen. No. 31,462.
    1. Carriers — one of two railroads as initial carrier. Where a carload of grapes is billed to a steam railroad but is carried a short distance by an electric railway, which has the freight prepaid for its haul and is not freight operated and owns no ears, and which delivers the car to the steam railroad which issues a through bill of lading and receives a bond to avoid prepayment of freight to destination, held the steam railroad and not the electric railway was, under the Carmack amendment, the initial carrier responsible for damage sustained after leaving the steam railroad point of origin.
    2. Carriers — right to limit liability for damage to shipment. A railroad company issuing a through bill of lading for a carload of grapes “in apparent good order” cannot, under the Carmack amendment, limit its liability for damage by a recital in a special typewritten clause that, as no refrigerator cars are available^ all claims are waived for loss or damage on account of insufficient or improper equipment, or lack of refrigeration or ventilation.
    3. Carriers — rule in construing bill of lading. A bill of lading will be construed against the carrier and in favor of the shipper, as the carrier made the contract.
    4. Carriers — burden of showing goods were not in good order when received by carrier. In order to defeat the operation of a recital in a bill of lading that grapes 'were received “in apparent good order,” the burden is on the railroad company to show the grapes were not in good order when received for shipment.
    5. Carriers — prima facie case from evidence of damage to goods at destination. Where a. railroad company issues a through bill of lading reciting that grapes were received “in apparent good order,” proof of damage at the point of destination make a prima facie case against the railroad.
    6. Carriers — right of holder of bill of lading to sue for damage to goods. The lawful holder of a through bill of lading is entitled under the Interstate Commerce Act, § 20, to maintain an action against the railroad for damage to the goods in transit, although the holder may not be the owner of the goods.
    7. Appeal and error — presumption that inadmissible evidence was not considered. It will be judicially assumed on appeal that in arriving at a conclusion upon facts the trial judge in a non jury ease founded his judgment upon legally admissible evidence and did not take into consideration evidence which was improperly admitted after objection.
    8. Harmless error — improper admission o.f evidence where other evidence is sufficient. A judgment in a nonjury case may be sustained although evidence was improperly admitted after objection, where there is sufficient legally admissible evidence of probative force.
    Appeal by defendant from the Circuit Court of Cook county; the Hon. David M. Brothers, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed November 23, 1927.
    John A. Sheean, for appellant.
    J. V. Delaney, for appellee.
   Mr. Justice Holdom.

delivered the opinion of the court.

This action involves a shipment of 930 lugs of grapes under a through bill of lading issued by the defendant railroad company, as initial carrier, to transport said grapes from Petaluma, California, to Chicago. They were shipped in a so-called “box car.’’

The cause was tried before the court by agreement, and it was stipulated that if there was a finding in favor of plaintiff the amount of the damages should be assessed at $800. There was such a trial and a finding of the issues in favor of plaintiff and an assessment of damages under the agreement of the sum of $800, with a judgment on the finding, and defendant brings the record to this court for review asking a reversal.

It is first disputed strenuously that defendant was not the initial-carrier. As a matter of fact the grapes started on their journey east from Ross, California, on the Petaluma & Santa Rosa Railroad, which was an electrically operated road extending from Ross to Petaluma, twenty-one miles in length. The box car in which the grapes were shipped was numbered 205,948 and was a Chicago, Milwaukee & St. Paul Railway Company car. The Petaluma & Santa Rosa Railroad Company was not a freight operated road, and did not own any freight cars; the car was billed to defendant Northwestern Pacific Railroad Company at Petaluma, and the freight charges, amounting to $53.97, prepaid to that point. The defendant received the carload of grapes at Petaluma and issued its bill of lading from that point to the point of destination. In order to avoid prepayment of. the freight to destination, a bond was given to the defendant railroad company.

In the Carmack amendment to the Hepburn bill the initial carrier is liable for damage occurring between the initial point and the point, of destination, and defendant argues that the Petaluma & Santa Rosa Railroad Company was the initial carrier, and is therefore responsible for the damages complained of and that defendant is not so responsible.

We think that the trial judge might reasonably find, as he did, from the evidence on this point, that within the meaning of the Carmack amendment, the Petaluma & Santa Rosa Railroad Company was not the initial carrier, and that defendant was, both on the facts as disclosed by the evidence and the stipulation of the parties in evidence, and that the defendant by its bill of lading issued at Petaluma constituted itself, the initial carrier. Its bill of lading was its contract, so that the holding in Pere Marquette Ry. Co. v. J. F. French & Co., 254 U. S. 538, to the effect that where an attempt is made after delivery at the first designated point to reconsign without consent of the initial line and without its knowledge, makes a new shipment and releases the first carrier is not in point. We are therefore of the opinion, and so hold, under the facts in this case, that defendant is, under the Carmack amendment, the initial carrier.

The grapes were shipped in a box car because a refrigerator car was not available at Ross, where the car was originally loaded.

A large portion of defendant’s argument, in the light of our determination that defendant was the initial carrier and not the electric road which carried the car from Ross to Petaluma, is eliminated from the case and our consideration of it.

Defendant’s bill of lading, dated October 9, 1920, recites the grapes were received “in apparent good order” and then proceeds thus “(contents and condition of contents of packages unknown)”. Then follows a special typewritten clause which reads: “It is agreed anything in this bill of lading to the contrary notwithstanding, that the within described shipment is to move in box ventilator and or/other equipment because the originating carrier has no refrigerator cars available for it that all claims for loss or damage on account of insufficient or improper equipment lack of refrigeration or ventilation in transit are hereby waived."

That part of the Carmack amendment to the Hepburn act governing the shipment in question is contained in section 20 of the Interstate Commerce Act, and inter alia provides that the carrier “shall issue a receipt a bill of lading therefor, (for the shipment), and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass * * * and no contract, receipt, rule, regulation or other limitation of any character whatsoever, shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed; and any such common carrier * * * shall be liable to the lawful holder of said receipt or bill of lading or to any party entitled to recover thereon, whether such receipt or bill of lading has been issued or not, for the full actual loss, damage or injury to such property caused by it or by any such common carrier, * * * to which such property may be delivered or over whose line or lines such property may pass, * * * notwithstanding any limitation of liability or limitation of the amount of recovery * * *."

The bill of lading being a through bill of lading, the attempt by defendant to limit its liability therein was impotent to effect such purpose. The shipment was in all respects governed by and subject to the Carmack amendment quoted from supra, and there could be no deviation therefrom, so far as the act by its provisions imposed liability upon the carrier.

The bill of lading will be construed against the carrier and in favor of the shipper as the carrier made the contract. The bill of lading recites that the grapes were received “in apparent good order,” and the vague recitation of an absence of such knowledge will not be received to modify in any manner the express acknowledgment of defendant that they were received “in apparent good order.” To defeat the operation of such admission the burden was on defendant to show by pertinent evidence that the grapes were not in good order when they were received for shipment by the carrier defendant. Such exculpating proof we do not find in the record. The grapes being in good order, according to defendant’s bill of lading, at the time of shipment, proof of damage at point of destination, Chicago, made a prima facie case against defendant, entitling it, in the absence of contrary proof, to recover. The only excepted causes of damage are the act of God, the public enemy or innate nature of the article shipped. There is no evidence that the damage and loss was occasioned or brought about by any of the foregoing excepted clauses. Paden v. Rockford Palace Furniture Co., 220 Ill. App. 534; Galveston, H. & S. A. Ry. Co. v. Wallace, 223 U. S. 481. The damage was proven and the amount of recovery $800 fixed as the measure of damages by the stipulation of the parties.

To the contention that plaintiffs were not the owners of the grapes so as to entitle them to sue for the damages thereto in transit, it is sufficient to say that they were the lawful holders of the bill of lading, and as such were entitled to maintain this action under section 20, aforesaid, of the Interstate Commerce Act. There is no evidence in the record challenging this fact. As said in Galveston, H. & S. A. Ry. Co. v. Wallace, supra, “The burden of proof that the loss resulted from some cause for which the initial carrier was not responsible in law or by contract is cast upon the carrier (when the plaintiff has shown good condition at point of origin, and damage at destination).” The proofs before us fully rises to the quantum of proof as above laid down and is sufficient to entitle the shipper to recover.

There is some evidence in this record to which defendant unavailingly objected, which was subject to the objections made. However, the trial was by the court without a jury, and it will be judicially assumed that in arriving at a conclusion upon the facts the trial judge founded his judgment upon evidence which was legally admissible and did not take into consideration at all evidence heard which was not legally admissible. We find from the proofs in the record that there was evidence of sufficient probative force to sustain the judgment which the court rendered, which evidence was not amenable to any objection made thereto on the part of defendant.

Finding no reversible error in the record, the judgment of the circuit court is affirmed.

Judgment affirmed.

Taylor, P. J. and Wilson, J., concur.


author: Mr. Justice Holdom

text:
    Polish Peoples Home Association and Printpress Company, Appellants, v. Stanley V. Atlas and Esther Atlas, Appellees.
    Gen. No. 31,476.
    1. Corporations — when corporation cannot claim its officers exceeded authority in the executing instrument. On a bill by a corporation presenting question whether its warranty deed was a mortgage, the corporation cannot claim that the execution of the deed by its officers was ultra vires of their powers and authority, where the corporation offers to pay whatever amount may be legally due to the grantee and admit that part of a claimed amount was rightfully found to be due by the chancellor.
    2. Mortgages — sufficiency of evidence that deed was intended to he a mortgage. A deed absolute upon its face was held to be a mortgage under evidence that at the time of the execution the grantee was willing to help the grantor out of financial difficulty if given proper security, that the grantee had no intent of ultimately acquiring the fee title except on a failure of timely reimbursement, and that the grantee executed a formal option to reconvey within a year.
    3. Appeal and error — presumption that only admissible evidence was considered. On the review of alleged errors in the admission and exclusion of evidence in a suit in equity, the court will assume that the chancellor, in arriving at his conclusions, as evidenced by the decree, took into consideration only such proofs as were properly admissible.
    4. Tender — effect on interest. A tender of much less than the amount due under a deed intended to be a mortgage does not stop the interest.
    5. Equity — necessity of performing promise to do equity. A grantor who asks that a deed be declared to be a mortgage, but who does not perform his promise in the bill to pay the amount due, has no further standing in equity to obtain any relief whatsoever.
    6. Tender — necessity of keeping tender good. A tender which is not kept good does not stop interest.
    7. Mortgages — money advanced for benefit of mortgagor. In determining the amount to be due to a grantee of a corporate deed intended to be a mortgage, held an amount advanced by the grantee at the direction of the corporation to purchase property usable by the corporation within its charter powers was properly allowed.
    8. Usury — loan to corporation. Where a corporation agrees to pay premiums or bonuses which amount to more than the legal rate of interest for financial advances, and gives a deed intended as a mortgage as security, the statutes on usury and interest do not prevent the mortgagee from having its amounts included in the sum the corporation is required to pay as part of the money necessary to redeem, the alleged usurious amounts being not more than adequate compensation for the valuable service in making the advances.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. Oscar Hebel, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Affirmed with directions, etc.
    Opinion filed November 23, 1927.
    Carl Strover, for appellants.
    Charles P. Molthrop and Alexander M. Smietanka, for appellees.
   Mr. Justice Holdom

delivered the opinion of the court.

The bill in this case presents for decision, first, whether the warranty deed of complainant, the Polish Peoples Home Association, to the defendant Stanley V. Atlas, of date June 9, 1925, was what upon its face it purported to be, or was in fact a mortgage to secure to Atlas payment of moneys then or thereafter to be advanced by him for the grantor; and secondly, if it be decided to be a mortgage, then how much is necessarily to be paid to Atlas to effect a redemption.

The learned chancellor, after a somewhat protracted hearing, decreed that the warranty deed, in equity, was a mortgage, and that the amount necessary for redemption at the date of the decree was $8,534, with legal interest thereon from the decree date, July 17, 1926, until payment, and directed that the same should be paid within thirty days, and if not so paid within that limitation of time, an execution should issue for the amount so found to be due, with legal interest thereon, and a sale of the premises conveyed by the said warranty deed in form, but held to be a mortgage in fact, be made under such execution.

Among other objections raised by the grantor in the aforesaid deed is the validity of thé execution by the officers of the grantor, that their action in so executing the deed was ultra vires, of their powers and authority. Suffice it to say that in their bill, the complainants offer to do equity and to pay whatever amount may be found legally due to defendant, Stanley V. Atlas, and further complainants admit in their brief that the amount found due by the chancellor, less about $2,000, is rightfully due. Under these circumstances the doctrine of ultra vires is not invocable.

Defendant has assigned cross-error, and in support of such assignment contends that he is entitled to $4,000 more than awarded him by the decree.

From the proofs in this record we can hardly see how the learned chancellor could conscientiously have come to any other conclusion than that the deed, while in form conveying a fee simple title, was in fact a mortgage and so understood at the time by all the parties to it. It is evident that complainants were in financial straits at the time the deed was executed and delivered and that defendant was willing on proper security to help complainants out of their financial difficulties.. There was no word spoken at the time of the transaction by Atlas or any of the other interested parties from which 'the conclusion may be reasonably inferred that Atlas had any idea or intention of ultimately acquiring the fee title, except as the result of the failure of complainants to reimburse him for his outlays within a reasonable time.

Furthermore, on June 9, 1925, Atlas executed a formal option to the Home Association to reconvey at any time within one year. This option read in the light of other testimony lends weight to the contention that the deed was not intended to operate as an absolute conveyance, but only as security for such payments or advances which Atlas might make for and on account of the property conveyed, which as a matter of law would include reasonable compensation for his services. The parties in their respective briefs, in effect, conceded that the deed was a mortgage. Atlas in asking for $4,000 more than the chancellor awarded him assumes that the deed was a mortgage and thereby fixes the amount necessary to redeem therefrom. As to that part of the decree holding that the deed in question was in equity a mortgage, we agree.

We have scanned the record for the errors complained of in the ruling of the court on the admission and exclusion of evidence, and having in mind the rule that this court will assume that the chancellor, in arriving at his conclusions, as evidenced by the decree, took into consideration only such proofs as were properly admissible. So far as the exclusion of proffered evidence is concerned, we find nothing which detracts from the force of the ultimate findings of the decree.

We come now to the consideration of the question. of the amounts which .should have been allowed to Atlas, whether more or less than the sums found by the decree.

The tender made, if good, would stop interest, but being bad, it stopped nothing. When the tender was made it was much short of the amount then due, as found by the decree. An injunction was unnecessary under the findings of the decree. If complainants had complied with the decree at the time of its entry and paid the amount awarded Atlas, they would have gone into the undisturbed possession of the mortgaged property. Failing to do so they must suffer the penalty of such failure. However this may be, the failure of complainants to abide by the decree of the court, their bill should be dismissed for want of equity. A party who proffers equity must perform, otherwise he is not entitled to equitable relief which he asks for himself. When he fails to perform the promise to do equity made in the bill, as may be adjudged by the court, which promise gave the court jurisdiction and moved the chancellor to grant the relief which he did, then such party has no further standing in equity to any relief whatsoever.

Complainants never even tendered the amount which in their argument they admit to be due. Furthermore the amount actually tendered on the trial was made before the decision and decree of the court and not thereafter renewed. In other words, the tender was not kept good. Complainants were accorded the benefit of their tender by the refusal of the chancellor to allow interest on the sum tendered from the date of the tender to the date of the entry of the decree. This action was more than generous toward complainants.

Defendant in his brief accepts of the decision of the learned chancellor that the deed in question is not absolute, but in the nature of a mortgage. This leaves for our further decision the correctness of the accounting as set forth in the decree. These are encompassed within three items, viz., money advanced by Atlas to the Express Company and Publishing Company, $2,000, with interest thereon to date of decree at 6% $132, making $2,132; also $6,042.65 advanced by Atlas to the Bank, with interest thereon at 6% to January 19, 1926, $140.35, making $6,183; moneys expended by Atlas for insurance, $215 with interest- thereon to last mentioned date at 6% $4, making $219; the whole three items making $8,534, the amount decreed to be paid within thirty days.

Complainants object to the first item of $2132, only with the exception of a claim for $25, so-called rent payment. As to that $25 item, we see nothing in the record which would justify this court in varying the decree on that item.

The charter of the Home Association authorized it, among other things, to do a printing business. As appears by the decree the item of $2,132 objected to, was paid by Atlas at the direction of the Home Association to purchase a printing plant from the receiver of the Polish Peoples Publishing Company. Atlas had no personal responsibility for this payment. He made it at the direction of the Home Association. Even were the doctrine of ultra vires invocable, which it is not, the purchase of property usable by the Home Association was within its charter powers and Atlas in paying that item by direction is absolved from further responsibility in the matter in a court of equity. 'What we have said regarding the $2,132 item disposes of all complainants’ objections to the account found in the decree.

We now come to the defendant’s assignment of cross-errors by which he contends that there should be added to the monetary findings of the decree two other items of $1,000 and $3,000 respectively, which the Home Association agreed to pay Atlas for his financial advances, as found in the decree before us for review.

The two items were in the nature of premiums or bonuses to be paid Atlas for financial advances made by him in the transactions in question. Complainants contend that these two items are usury in disguise. The deed in question was dated June 9, 1925, and defendant contends that it is immaterial whether the premium or bonus was in fact usury under the Illinois statutes then in force as to corporations.

The existent Corporation Act of 1919 provides in ¶ 6, subd. 7 ch. 32, Cahill’s 1925 Statutes, regarding powers of corporations: “To borrow money at such rate of interest as the corporation may determine without regard to or restrictions under any usury law of this State, and to mortgage or pledge its property, both real and personal, to secure the payment thereof. ’ ’

At the time of the passage of the foregoing act, interest chargeable by statute was limited to 7 per cent annually. Paragraph 4, ch. 74, Callaghan’s Annotated Statutes, Cahill’s St. ch. 74, ¶ 4. And by ¶ 11, of the same act, it was provided, “that no corporation shall hereafter interpose the defense of usury in any action.” On July 1, 1925, ¶ 11, supra, was repealed, and ¶ 4, supra, rewritten, in which 7 per cent annually was fixed as the maximum rate of interest, with the following exemption from its operation, “provided, however, with respect to money loaned to or in any manner due and owing from a corporation, the parties may stipulate or agree upon any rate of interest whatsoever, and take and pay the same.” Paragraph 6, ch. 74, supra, was rewritten to read, “If any person or corporation in this state shall contract to receive, except from a corporation, a greater rate of interest or discount than 7 per cent” etc. The foregoing amendments harmonize effectually the interest statutes with the Corporation Act of 1919. So whether these two items are adjudged as bonus or usurious interest, the result is the same. They are recoverable on either theory. These charges do not shock the sense of equity or good conscience, because thereby Atlas receives not more than adequate compensation for his advances, and his services in the matter involved, which were of considerable value, for he has had rather a rugged time with complainants and their various aids, legal and lay. The money has been well earned, and in the condition of the statutes are just claims against complainants, and proper to be charged against them as part of the money necessary to redeem.

In complainants ’ reply brief they state they have no objection to the modification of the decree so as to provide that on failure to pay the amount found due by the decree within 30 days, their bill may be dismissed for want of equity on the authority of Ladd v. Ladd, 175 Ill. App. 101. It will therefore be so ordered.

The decree of the superior court is affirmed and the cause is remanded to the superior court with directions to enlarge the • amount found due of $8,534 by adding thereto the sum of $4,000, and to make the total amount to be found due by such decree, as enlarged, of $12,534, with interest at the legal rate of 5% from the date of the entry of the original decree, July 17, 1926, to date of payment, and to modify the decree by providing that on failure of complainants, or some one for them, to pay the aforesaid amount of $12,534, within 30 days of the final entry of the decree, as enlarged, complainants’ bill be dismissed for want of equity.

Decree affirmed with directions to add thereto the sum of $4,000, and to dismiss the bill for want of equity on failure to pay amount of decree as .enlarged within thirty days.

Taylor, P.J., and Wilson, J., concur.


text:
    Harry Stancato, Appellee, v. Chicago Business Men’s Racing Association, Appellant.
    Gen. No. 31,719.
    Consolidation and severance of actions — right to consolidate actions by different plaintiffs for tort of single defendant. The action of a trial judge, against the protest of the defendant, in requiring the consolidation for trial before the same jury of separate actions by different landowners for damages to crops from the dumping of manure and rubbish into an adjacent stream is contrary to law, and cannot be sustained as an exercise of judicial discretion.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Worth E. Caylor, Judge, presiding.
    Heard in the third division of this court for the first district at the March term, 1927.
    Reversed and remanded.
    Opinion filed November 23, 1927.
    Rehearing denied November 30, 1927.

      Charles H. Soelke and Albert Sabath, for appellant; Charles Hudson, of counsel.
    Harry O. & Magnus B. Rosenberg, for appellee; Millard C. Eiseman, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

This case has been consolidated under one record, one abstract and one brief with cases, general numbers 31,720, 31,721, 31,722 and 31,723, for hearing in this court.

The actions are all in tort for damages to the crops of the several plaintiffs alleged to have been caused by the dumping by defendant of manure and rubbish in the stream of water known as the “Ogden Ditch” adjacent to the land farmed by the plaintiffs. Against the protest of defendant the trial judge ordered the cases tried at the same time and before the same jury and on the same evidence. There were five separate verdicts and judgments thereon. Plaintiff in this case recovered a judgment for $4,500; the judgment in case No. 31,720 for Leopold Stancato was for $1,600; the judgment in case No. 31,721 for Louis Iannoma was for $5,250; the judgment in case No. 31,722 for Ciacomo Ardita was for $3,700; and the judgment for Harry Stancato, Administrator, in case No. 31,723 was for $2,200.

We have not determined, in the conclusion to which we have arrived, as to the disposition of these appeals, the merits of the several controversies, but we do decide that the judgments cannot be sustained because the rights of the defendant were judicially violated by the action of the trial judge in trying the cases, against defendant’s protest, en omnibus. They were not such cases as could be consolidated for hearing. Each was entitled to a separate trial, and the court could not deprive them of that right. It is certainly true that there is no legal precedent to be found in the reports of this state warranting consolidation of actions in tort for trial. Causes of action in assumpsit by the same plaintiff and against the same defendant might be consolidated and tried together, but as said in Niles v. Danforth, 37 Ill. 157, “it is an impossibility that such a motion (to consolidate) should be granted in a court of law where the parties are different.” In the instant cases the torts alleged are for damages against different pieces of land and to the crops thereon and are personal to the several plaintiffs.

Counsel for appellees have urged in argument in an attempt to sustain the irregularity of conduct of the trial judge in consolidating the cases for hearing before one jury, on the theory that in so doing the court acted within its judicial discretion. In this they are much in error. Judicial discretion is the exercise of the court’s own judgment, within the law. Under the law the discretion reposed in a judge is not an arbitrary one. It is judicial and must conform to the law applicable to the existent condition. A judicial act is one done by a judicial officer which requires the exercise of his discretion and judgment. For a judge to pursue a course which is contrary to law is not the exercise of judicial discretion, but is simply a violation of the law by the judge.

For the foregoing reasons the judgment of the superior court is reversed and the cause is remanded, for a new trial under the law as stated in this opinion.

Reversed and remanded.

Taylor, P. J. and Wilson, J., concur.


text:
    American Appraisal Company, Appellee, v. James Percival Pio, Appellant.
    Gen. No. 31,739.
    1. Attorney and client — liability of attorney contracting without disclosing agency for client. An attorney who does not disclose that he is acting for his clients nor disclose their names in employing an appraisal company to make an appraisal of his clients’ land for use in a condemnation proceeding makes a contract personal to himself and is liable to the company, particularly where the attorney paid - various sums on account of the company’s demand for services and disbursements without making any claim he was acting for a principal until failure to pay the balance due, and where he received many statements of account without disputing them and in writing admitted his liability and promised to pay.
    2. Attorney and client — instruction on liability of attorney on contract benefiting client. In an action against an attorney on conflicting evidence whether he made a contract as personal to himself or as agent for a client, an instruction that if the jury believed the attorney was the agent and the parties knew he was only the agent and that he was not binding himself as agent, that the jury might consider that fact, and if he was acting as agent and binding somebody else as agent, that the jury might consider that fact, held favorable to the attorney and to the giving of which at his instance ho had no cause for complaint.
    3. Trial — right of trial judge to change verdict by increasing the amount. In an action to recover an amount due on a contract to appraise land, the trial judge has no right to change the verdict for plaintiff by increasing it to the full amount of the claim, since the court could only set it aside and award a new trial.
    4. Appeal and error — right to enter judgment for increased amount. On an appeal by the defendant from a judgment for plaintiff in the Municipal Court of Chicago, the court has no power to enter a judgment for plaintiff for an increased amount, particularly where the plaintiff has not assigned any cross-errors and has not asked for a reversal with a demand for a new trial.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Daniel P. Trude, Judge, presiding.
    Heard in the third division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed November 23, 1927.

      William H. Katt, for appellant.
    Dittus & Chatroop, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

In this action plaintiff sought to recover of defendant for services and disbursements made in the appraisal of certain property on South Park avenue, Chicago, for use in condemnation proceedings for defendant, and at his request, in which a balance of $793.83 is claimed to be due.

Defendant denied that he ever employed plaintiff to make the appraisal of the South Park avenue property, as claimed by plaintiff, but avers that he was the attorney for such property in certain condemnation proceedings, and that as such attorney he requested plaintiff to make appraisals, etc., for his clients, the owners of the property, and that defendant was not the owner of the property and had no interest therein. That he collected the sum of $1,300 from the owners, and paid the same to the plaintiff solely as such attorney.

There was a trial before the court and a jury. The verdict was in favor of plaintiff and against defendant for $578.53, on which, after denying the usual formal motions, there was a judgment, and defendant appeals.

Defendant urges for reversal procedural errors in the admission of evidence, in instructions to the jury, and refusal to instruct upon due request a verdict in favor of defendant.

If defendant, in his capacity as lawyer, acting for his clients, employed the plaintiff to render service for such clients and disclosed to plaintiff the names of his clients for whom he was acting, then defendant would not be liable to plaintiff for services rendered for his principals or for disbursements made for their account. This, however, is not the situation as developed by the evidence. The defendant’s employment of plaintiff was personal to himself. He made no mention of representing any clients to the plaintiff or engaged its services for such clients. He made no disclosures to plaintiff regarding his representing clients at the time he engaged its services, or at any time subsequently during the time plaintiff rendered service. It he was acting for others, he did not disclose that fact to plaintiff or disclose the names of his principals. Failing so to do the contract was personal between the parties to the suit. If one contracts for others without disclosing for whom he is acting, then the contract becomes personal. The necessity for disclosing who the principals are is to give the contracting party the opportunity to make inquiry as to the fact, and then to determine whether he is satisfied that such persons are the principals of the agent, and if they are, then whether such party is willing to extend credit to such principals. Failing to disclose his now claimed principals to plaintiff, defendant by his contract bound himself personally. All defendant’s actions stamp him as the party contracted with. He paid plaintiff, in varying sums, $1,300 on account of plaintiff’s demand for services and disbursements, and never represented or claimed that he was paying the same for any principals disclosed or undisclosed, and not until he failed to pay the balance of the account due, did he make any claim that he was acting in the matter for others. Furthermore, defendant received many statements of account without disputing them and in writing admitted his liability and promised to pay the balance claimed to be due at the time of the commencement of this suit. His claim of acting for others comes too late, in the face of his admissions, both verbally and by letter, that he was liable for the debt under the contract, verbally made with plaintiff.

We think the verdict of the jury and the judgment of the court are sustained by the proofs. Defendant was his only witness, and the burden of his evidence is his claim that he was acting, in making the contract of employment, for clients, whose names he at no time disclosed, until he filed his amended affidavit of merits, and in that document he makes no claim that he told plaintiff or any one for it, at the time of the making of the contract, that he was representing clients or that he named any of them or gave any information in relation to them. The governing rule is stated in Mulligan v. Cannon, 25 Civ. Proc. 348, 41 N. Y. S. 279, cited in defendant’s brief, that:

“The attorney cannot be held personally liable unless upon an express promise to that effect, proof of circumstances from which such promise may be justly inferred or notice to the third party of lack of authority in the attorney.”

Defendant has brought himself within the exception to the general rule as above laid down.

We have carefully studied the oral instructions given by the trial judge to the jury and are of the opinion therefrom that the jury were sufficiently and accurately instructed as to the law applicable to the facts in evidence. After instructing the jury on motion of defendant the court gave an additional instruction which was in part: “On the question of agency you have heard the testimony of the witnesses as to what, how they were acting, and what was said by the parties, and if you believe that Mr. Pio was the agent and the parties knew he was only the agent and that he wasn’t binding himself as agent, why then you may consider that fact; if he was acting as agent and binding somebody else as agent you may consider that fact in determining your verdict.” We think this instruction was quite favorable to defendant and to the giving of which at his special instance he has no cause of complaint.

We find numerous rulings in the admission of certain letters and copies of letters. The proofs regarding them were sufficient under well-settled rules of evidence, making them admissible. Defendant made no suggestion that they were not authentic on his examination as a witness in his own behalf.

Plaintiff insists that the verdict should have been for the full amount of its claim $713.53, and requested the trial judge to change the verdict to that amount, which the court refused to do, as he had no power to change the verdict in any respect, except to set it aside and award a new trial. Now plaintiff asks this court to enter a judgment here for $713.53. This we have no power to do. We might reverse the judgment and remand the cause for a new trial, but plaintiff does not ask us so to do, and has not assigned any cross errors.

As we find no reversible error in the record, the judgment of the municipal court is affirmed.

Affirmed.

Taylor, P. J. and Wilson, J., concur.


author: Mr. Justice Wilson

text:
    James F. McCann, Appellee, v. The Retirement Board of the Policemen’s Annuity and Benefit Fund of the City of Chicago, Appellant.
    Gen. No. 31,586.
    Municipal corporations — basis for ascertaining amount of policeman’s annuity. The provision of Cahill’s St. ch. 24, ¶ 863, that in figuring the annuity of retiring policemen the salary used as a basis shall not be placed at over $2,600, is subject to the exception found in Cahill’s St. ch. 24, ¶ 907, that such salary should be the actual salary in respect to present employees of the age of 50 or over who had served more than 20 years in the department and who resign or are discharged after the first day of the month of January of the first year after the year in which the act becomes effective.

      Appeal by defendant from the Circuit Court of Cook county; the Hon. Hugo M. Friend, Judge, presiding.
    Heard in the third division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed November 23, 1927.
    Francis X. Busch, Corporation Counsel, and George F. Mulligan, Assistant Corporation Counsel, for appellant; Cora B. Hirtzel, Assistant Corporation Counsel, of counsel.
    Day & Beilman and James A. Daley, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

This matter comes to this court on an appeal from an order of the circuit court of Cook county, directing that the officers of the Retirement Board of the Policemen’s Annuity and Benefit Fund of the city of Chicago pay the petitioner, James F. McCann, a pension as prayed for in the petition filed in said cause, and further, to pay to said petitioner certain amounts of back salary, incurred by reason of the failure of the board to pay the full amount of the pension, as found by the trial court to have been due.

The facts are practically undisputed. It appears that James F. McCann, the petitioner below, was born in Illinois in 1872; became a member of the Department of Police of the City of Chicago in June, 1894, at which time he was duly appointed a patrolman in said department and entered upon his duties as such; that petitioner, from the time of his appointment, continued in active service and was paid by the city of Chicago the regular salary of a patrolman until May, 1895, when, by an order of the General Superintendent of Police, he, with seven hundred and fifty other patrolmen was dropped from the payroll and from service in said department. On October 26, 1897, he was again appointed a patrolman in the Department of Police under “An Act to Regulate Civil Service in Cities,” approved and in force March 20, 1895, and adopted by the city of Chicago on July 1, 1895. The facts further show that the petitioner served as patrolman until March 21, 1898, at which time he was promoted and duly appointed to the position of Desk Sergeant in the Department of Police, where he continued to serve until 1908, at which time he was duly appointed to the position of lieutenant in said Department of Police. This position he held until February 25, 1922, when he was promoted and appointed to the position of captain of police in said department, which position he held until the 31st day of October, 1923, at which time he tendered his resignation from the Police Department, and it was duly accepted. It is undisputed that during this entire time he was actively employed in and connected with the Police Department and received his salary during that period. From February 23, 19.22, until October 31, 1923, the date of his resignation, his salary as a captain of police was $3,500 per annum. It further appears that all proper deductions were taxed and made from his salary as a police officer, for the benefit fund, and that he in all respects complied with the regulations of the department governing and concerning this particular fund. It is further apparent from the facts that at the time of his resignation from the service, he was over fifty years of age and had served as an officer in the Police Department of the city of Chicago continuously for more than twenty years. After the retirement of petitioner, he applied to the retirement board for the annuity coming to him under the Act entitled, “An Act to provide for the creation, setting apart, maintenance and administration of the policemen’s annuity and benefit fund in cities having a population exceeding two hundred thousand inhabitants,” approved June 29, 1921, and in force July 1, 1921; and at a regular meeting of the members of that board, held on January 21, 1924, a resolution was adopted granting petitioner an annuity of $1,750, payable in equal monthly instalments of $145.83. It appears from the facts, as charged in the pleadings and admitted by the answer, that the regular annual salary of a captain of police — the position held by petitioner at the time of his severance from service — was $3,500 per annum, and at the meeting of the Retirement Board, as hereinbefore stated, his annuity was granted to him based on an amount equal to one-half of his annual salary. This annuity was paid until November 30, 1924 — a period of thirteen months — and on December 18, 1924, at another meeting of the board another resolution was adopted, by which this annuity was reduced to $1,300; and the facts disclose that the board has withheld from petitioner any payments on account of said annuity, on the theory that because of an over-payment they were entitled to retain future payments to satisfy the amounts claimed by the board to have been illegally paid out. The action of the board changing the amount of the payments under the benefit fund, is based on the proposition that the statute limits the amount which any beneficiary could receive out of any fund, to the amount not to exceed one-half of $2,600.

The defendant below, Retirement Board of the Policemen’s Annuity and Benefit Fund of the city of Chicago, claims that the original resolution and payments made thereunder were made through a mistake of law, and that the amount payable, as a matter of law, should not exceed the amount of $1,300, as provided in section 12 of the Act of 1921, Cahill’s St. ch. 24, ¶ 863. Petitioner’s position is that the act of the Retirement Board, in the first instance, was correct, in fixing the amount at one-half of his then present salary at the time of his retirement, or $1,750.

It becomes necessary, for the purpose of decision, to consider two sections of the act. Section 12, Cahill’s St. ch. 24, ¶ 863, reads as follows:

“§12. The following words and terms as used in this Act shall mean as follows, respectively:
“ ‘Policeman’: Any person appointed and sworn or designated by law as a policeman of such city, and who has served, or is serving, or shall serve in regularly constituted police department of such city as a policeman, or policewoman, or police patrol driver, or police operator, or secretary of such police department, or police dog catcher, or police kennelman, or police matron, and member of the police force of such police department.
“ ‘Further Entrant’: Any policeman who shall be employed as a policeman of such city for the first time on or after the first day in the month of January of the first year after the year in which this Act shall come in force and effect in such city.
‘ ‘ ‘ Present Employee ’: Any policeman who shall be in the employment of such city as a policeman thereof on the thirty-first day in the month of December of the year in which this Act shall come in force and effect in such city.
“ ‘Active Policeman’: Any policeman employed as a policeman by such city.
“ ‘Salary’: Annual salary: Provided that two thousand six hundred dollars ($2,600.00) shall be the maximum amount of the annual salary of any policeman which shall be considered for any purpose under this Act. Any amount of annual salary in excess of said amount of two thousand six hundred dollars ($2,600.00) which any policeman shall receive shall not be considered for any purpose under this Act.”

Section 28, Cahill’s St. ch. 24, ¶ 879, provides for a computation of any benefit granted, based on the American Experience Table of Mortality. This section, however, is not applicable in view of the fact that petitioner’s salary at the time of his severance from the service was over $2,600, so that in any event he would receive not less than $1,300, and for that reason we are not concerned with the provisions of that particular section. Section 55 of the act, Cahill’s St. ch. 24, ¶ 907, and the section relied upon by petitioner, is in words and figures as follows:

“§55. Notwithstanding the provisions of any foregoing section or sections of this Act, any present employee who shall resign or be discharged from the service on or after the first day in the month of January of the first year after the year in which this Act shall come in force and effect in such city, and after he shall have completed twenty (20) or more years of service and for whom the amount of annuity provided in accordance with the foregoing provisions of this Act shall be less than the amount stated hereinafter in this section shall have a right to receive annuity as follows:
“Any such present employee who shall be fifty (50) or more years of age at the time of his resignation or discharge from the service shall have a right to receive annuity, from and after the date of - such resignation or discharge, of an amount equal to fifty (50) per cent of the salary of such present employee as such salary shall be at the time of his resignation or discharge from the service.
“Any such present employee who shall be less than fifty (50) years of age at the time he shall resign or be discharged from the service shall have a right to receive annuity, from and after the date upon which he shall become fifty (50) years of age, of an amount equal to fifty (50) per cent of the salary of such present employee as such salary shall be at the time of his resignation or discharge from the service but not in excess of the sum of nine hundred dollars ($900.00) a year.”

It is argued on behalf of the Retirement Board that it is the general rule in the construction of statutes that any early and declaratory sections, stating particular facts with reference to the statute, are controlling throughout its entire interpretation and it is not necessary to restate those particular statements of the statute in later sections, citing Peoria & P. U. Ry. Co. v. People ex rel. Jaeger, 144 Ill. 458, and Lewis Sutherland’s Statutory Construction, 2d ed., Vol. II, § 382.

On the other hand it is argued for petitioner below that § 55, Cahill’s St. ch. 24, ¶ 907, is controlling by reason of the fact that it is expressly applicable to present employees over fifty years of age at the time of retirement, who have served over twenty years in the employ of the Police Department, and specifically excepts them from the general provisions in regard to all others referred to in the enactment. It is argued further on behalf of petitioner below, that section 55, being a later section of the enactment, is controlling, based on the rule of construction that later sections of a statute are presumed to have been enacted with reference to all prior sections thereof and, therefore, with a full consideration of what is contained in all previous sections.

The language of § 55, Cahill’s St. ch. 24, ¶ 907, is plain, clear and unambiguous. It provides that any “present employee who shall resign or be discharged from the service on or after the first day of the month in January of the first year after the year in which this Act shall come in force and effect in such city, and after he shall have completed twenty (20) or more years of service and for whom the amount of annuity provided in accordance with the foregoing provisions of this Act shall be less than the amount stated hereinafter in this section shall have a right to receive annuity as follows:" It then provides that: “Any such present employee who shall be fifty (50) or more years of age at the time of his resignation or discharge from the service shall have a right to receive annuity, from and after the date of such resignation and discharge, of an amount equal to fifty (50) per cent of the salary of such present employee as such salary shall he at the time of his resignation or discharge from the service.” Moreover, the language, “Notwithstanding the provisions of any foregoing section or sections of this Act," at the very beginning of § 55, Cahill’s St. ch. 24, ¶ 907, would clearly indicate the intention of the legislature to exempt from previous provisions of the enactment anything which might tend to restrict the rights of beneficiaries of the kind and character expressly referred to in § 55 of the Act. It would appear that the language used was such as to exempt from the general provisions, as outlined in § 12, Cahill’s St. ch. 24, ¶ 863, present employees of the age of fifty or more, who had served more than twenty years in the department, who shall resign or be discharged after the first day of the month of January of the first year after the year in which the act shall become in force and effect, all of which requirements were present in the case of the petitioner. This seems to have been the view of the board in passing upon the meaning of the enactment at the time they originally fixed the amount of the benefit which petitioner was entitled to receive, and we are of the opinion that this view, as originally adopted by the Retirement Board of the Policemen’s Annuity and .Benefit Fund of the city of Chicago was the correct view of the statute, and it also appears to have been the view adopted by the trial court in granting the writ of mandamus directed 'to the officials of that board.

For the reasons given in this opinion, the judgment of the circuit court will be affirmed.

Judgment affirmed.

Taylor, P. J., and Holdom, J., concur.


text:
    Frank Freedman, Isaac Freedman and Morris Freedman, trading as Freedman Brothers, Appellees, v. Erie Railroad Company, Appellant.
    Gen. No. 31,732.
    1. Carriers — prima facie evidence of damage to goods in transit. A shipper makes a prima facie ease by showing the goods were delivered to the carrier in marketable condition and were received at the delivery point in deteriorated condition.
    2. Carriers — burden of proof to rebut prima facie evidence of damage to goods. After a shipper has made a prima facie case by proving the carrier received the goods in marketable condition and delivered them in damaged condition, the burden is cast on the carrier to show its own due care and that the damage did not result from its fault.
    3. Carriers — burden of proof of terminal carrier where goods damaged m transit. After a shipper has made a prima facie case by proving the carrier received the goods in marketable condition and delivered them damaged, the terminal carrier, being presumed to have received the shipment in good condition, has the same burden as the initial carrier to show that it used reasonable diligence in handling the shipment.
    4. Carriers — liability of connecting carriers under Carmack Amendment. Under the Carmack Amendment to the Interstate Commerce Act, the bill of lading required to be issued by the initial carrier upon an interstate shipment, so far as valid under the act, governs the entire transportation and fixes the obligations of all connecting carriers.
    5. Carriers — what relieves connecting carrier from bearing shipper’s loss. A connecting carrier will be relieved of liability for damage to a shipment shown to have been received by the initial carrier in good condition, if the connecting carrier can show that the damage occurred before it received the shipment.
    6. Carriers — necessity of connecting carriers overcoming prima facie case. Unless connecting carriers can show that a shipment was damaged before they received it, each of them has the burden of overcoming a prima facie ease by the shipper of the shipment being delivered in good condition and received in damaged condition.
    7. Carriers — presumption that connecting carriers received shipment in good order. Upon evidence showing that an initial carrier received a shipment in good order, the law will presume that all successive connecting carriers also received the shipment in good order.

      8. Evidence — hypothetical question usurping province of court. An objection was properly sustained to a hypothetical question, the answer to which would have been an opinion of an ultimate fact which the court itself was called upon to decide.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding.
    Heard in the third division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed November 23, 1927.
    Rehearing denied December 9, 1927.
    Follansbee, Shorey & Schupp, for appellant; Clyde E. Shorey and Louis W. Becker, Jr., of counsel.
    H. C. Lust, for appellees.
   Mr. Justice Wilson

delivered the opinion of the court.

This is an appeal from a judgment of the municipal court of Chicago in favor of the plaintiffs below, in the sum of $458, for damages sustained by plaintiffs by reason of damage to a certain shipment of grapes.

The facts show that on November 23, 1923, a car of grapes, commonly known as Emperors, was shipped from Madera, California, under a bill of lading (plaintiffs’ exhibit 1) issued by the Southern Pacific Company, and billed to Chicago, Illinois. This car was redirected to Newark, New Jersey, where it arrived December 5, 1923. The car from Chicago to Newark was under the control and direction of the defendant company. It was known as a refrigerator car and was supposed to be iced from time to time during the course of shipment, in order to keep the grapes or whatever perishable articles might be contained therein, from deteriorating by reason of weather conditions.

A number of witnesses have testified on both sides-in the cause, but it would appear that at the time the grapes left California they were in good condition. Certain witnesses who were present at the time they were crated and placed in the car for shipment testified as to this fact, and certain other witnesses testified that upon their arrival in Newark, New Jersey, they were in a bad state and damaged by reason of decay. From the testimony, it appears that they left California in good or fair condition and that they reached Newark in such condition that a large percentage of the shipment was deteriorated and damaged. Aside from the oral testimony of the witnesses, the court is somewhat governed in its opinion by the two exhibits jointly introduced by both parties to the suit, the first being joint exhibit 1 — a copy of the certificate of inspection of the United States Department of Agriculture, made at Madera, which stated that approximately 6 per cent were sunburned and immature, but that the remainder of the stock ivas of good quality and with no decay. The other exhibit, being Moorehead’s inspection certificate, showing the condition of the car and its contents on its delivery at Newark, described the grapes as a fair or good grading, but that most lugs showed from 25 to 30 per cent mould at the time of the inspection. The testimony of the defendant consisted mostly of showing that from the time the car was received at the clearing yard at Chicago, by the defendant company until its arrival in Newark, it was inspected at various points in transit and was iced at Marion, Ohio, December 2nd and again at Hornell, New York. Various witnesses on behalf of the defendant testified that the seals were unbroken throughout the trip; that the car appeared to be in proper condition, and the temperature was taken from time to time, most of which testimony was made by reference to records kept at the time and in the course of their employment. This court is not impressed with the argument that grapes are inherently subject to decay. The purpose of refrigeration is to stay this inherent tendency, and there was no unusual delay in shipment.

On the other hand, one Wagman, testifying for the plaintiff below, stated that he examined the condition of the car at the time it was opened on its arrival at Newark, and that in that particular car there were two or three layers broken and that the grapes were thrown around; that there was a bracing up to the ceiling and one part of the ceiling was gone. Louis Freedman, a witness on behalf of the plaintiffs, testified that he examined the condition of the car on December 5; that he climbed to the top of the tiers, and that strips were taken off the top and lugs were taken out from the next layer; and that the grapes at that time were decayed and mouldy. It appears that these grapes were packed in lugs, which were evidently wooden receptacles, each containing a certain number of grapes; and these lugs were placed in tiers in the cars, and were supposed to be kept in place by uprights.

The goods were shipped, as stated, under what is known as the uniform straight bill of lading issued by the Southern Pacific Company; dated November 23, 1923; from A. J. Sturtevant, Jr., shipper, and consigned to the National Auction Co., Inc., at Chicago. It states in its body that the goods were properly described in the bill of lading and were received in apparent good order. The grapes in question were what are known as juice grapes, and not of the finest quality but of a kind that is generally included in the late shipments from California; it being the custom to make shipments of grapes of the kind and character in question, as late as this and often later.

From the testimony contained in this record we are forced to the conclusion that at the time the grapes were shipped, they were in fair, marketable condition, and at the time of their arrival in Newark they had deteriorated by reason of mould and decay. Such being the facts in the case, it follows, as a matter of law that a prima facie case results in favor of the shipper, and the burden of showing due care is cast upon the carrier, and that the condition resulted without fault on its part.

Some testimony was introduced on behalf of the carrier, to the effect that grapes decayed rapidly if there was any evidence of decay at the time they were shipped. But, in view of the report of the United States Department of Agriculture, as stated in joint exhibit 1, there was no decay apparent in the grapes in question at the time they left Madera. The Erie Railroad was" not the initial carrier in this case but what is known as a terminal carrier; but the terminal carrier is presumed to have received the shipment in good condition, and the same burden is cast upon the terminal carrier, in regard to a showing of reasonable diligence and care in the handling of the shipment. The defendant in this case relies upon the fact that there is no evidence of negligence on its part, as a carrier, and that, consequently, the prima facie case is rebutted. On the other hand plaintiff below contends that it is the duty of the terminal carrier, after it has been shown that damage has resulted, to show that it, the carrier, was not the cause of the condition, and in order to save itself from liability, it must show that the damage resulted from some other cause than the care exercised by the terminal carrier in transporting the goods.

The Carmack Amendment to the Interstate Commerce Act (c 2591, sec. 20, 34 Stat. 593, 595; c 176, 38 Stat. 1196) fixes the responsibility for a shipment on the initial carrier, for any loss or damage occurring during the course of shipment, whether over its own line or lines of any connecting carriers. But, by the interpretation of the Supreme Court of the United States, the contract between the shipper and the initial carrier fixes the obligation of all participating carriers, under and by virtue of the terms of the bill of lading. The United States Supreme Court in its opinion in the case of Georgia, F. & A. Ry. Co. v. Blish Milling Co., 241 U. S. 190, at page 194, says:

“The connecting carrier is not relieved from liability by the Carmack amendment, but the bill of lading required to be issued by the initial carrier upon an interstate shipment governs the entire transportation and thus fixes the obligations of all participating carriers to the extent that the terms of the bill of lading are applicable and valid. ‘The liability of any carrier in the route over which the articles were routed, for loss or damage, is that imposed by the act. as measured by the original contract of shipment so far as it is valid under the act.’ ”

In other words, the responsibility of connecting carriers is that of agents for the initial carrier receiving shipments from that carrier, and each of the carriers is liable for loss or damage to goods shipped over its particular line during the course of the shipment. If it should develop in the course of a hearing that the loss occurred on a line, prior to its receipt by the connecting carrier, and this could be definitely shown, the connecting carrier would be relieved of responsibility. In the absence of such proof, the prima facie case remains as to each one of the connecting carriers, until this prima facie case is defeated by proof on the. part of the carrier.

In the case of Cassone v. New York, N. H. & H. River R. Co., 100 Conn. 262, 123 Atl. 280, a shipment of grapes from California left the point of origin, September 10, 1920, arrived at Maybrook, New York, September 28, and arrived at Stanford, Connecticut, on September 30. It appears that the grapes were decayed and deteriorated, but the court in its opinion found that it was in the hands of the terminal carrier, the defendant in that case, but a few hours, and consequently, under the circumstances, it would be impossible for the deterioration to have taken place within such a short period of time. Moreover, in that case the shipment did not call for icing, so that there were other causes than the care of the carrier involved, but the court in its opinion recognizes the liability of a terminal carrier under

circumstances which might raise a question of liability.' In the case at bar the shipment was in the hands of the defendant carrier from Chicago to Newark, New Jersey, for a period of four or five days, and under the circumstances, it appearing that the initial carrier received the goods in good order, the law would presume that each successive carrier also received them in good order. Trott v. Baltimore & O. R. Co., 192 Ill. App. 239. The court, in the Trott case, supra, at page 243, says:

“When the initial carrier receives goods in good order, the law presumes that each successive carrier, intermediate between the initial and last carrier, receives them in good order; and this presumption, working through to the last carrier who delivers them in bad order, casts the burden upon it to prove that it provided all suitable means of transportation and exercised that degree of care which the nature of the goods required, or to prove that the damage occurred before it received the goods (St. Louis I. M. & S. R. R. Co. v. Coolidge, supra; (73 Ark. 112, 114); Ruddell v. Baltimore & O. R. R. Co., 175 Ill. App. 456, 457), and this presumption is equally applicable to the next preceding carrier where it is shown that the damage did not occur or could not have occurred while the goods were in the possession of the last carrier.”

The Supreme Court of the United States in the case of The Folmina, 212 U. S. 354, at page 361, says:

“It was long since settled in Clark v. Barnwell, 12 How. 272, that where goods are received in good order on board of a vessel under a bill of lading agreeing to deliver them, at the termination of the voyage, in like good order and condition, and the goods are damaged on the voyage, in a proceeding to recover for the breach of the contract of affreightment, after the amount of damage has been established, the burden lies upon the carrier to show that it was occasioned by one of the perils for which he was not responsible.

In the case of Oregon-Washington Railroad & Navi gation Co. v. McGinn, 258 U. S. 409, the court found, as a matter of fact, that the damage to the shipment of horses, involved in that transaction, occurred prior to the time of the receipt of the shipment by the railroad company.

We are of the opinion that the question involved in the case at bar is one purely of fact. On the one hand, as stated hereinbefore, the grapes were received in good condition, -with no evidence of decay, so that we assume that if any such resulted it must necessarily follow that it started and occurred after the grapes were in transit. There is some evidence on behalf of the plaintiff below that the ceiling of the car was in bad shape upon its examination at Newark by the witness for the plaintiff. This, coupled with the legal presumption, constitutes a case which it became necessary for the railroad company to overcome and which it attempted to do by showing that it had exercised proper diligence in handling the shipment. The one outstanding fact appears to be that the grapes were in good condition when shipped and were in bad condition when received at Newark, and the trial court was of the opinion that the prima facie case, coupled with such evidence as was introduced by plaintiff below, was not overcome by the testimony of the defendant, and we see no reason for disturbing its finding.

An objection is made to the fact that the trial court sustained an objection to an hypothetical question propounded to one of defendant’s witnesses, but the hypothetical question was one, the answer to which would have involved the final decision of the cause and was, in fact, an opinion on an ultimate fact which was a fact which the court was itself called upon to decide, and we believe the objection was properly sustained by the trial court.

For the reasons given in this opinion, the judgment of the municipal court is affirmed.

Judgment affirmed.

Taylor, P. J., and Holdom, J., concur.