author: Mr. Justice Friend

text:
    The People of the State of Illinois, Defendant in Error, v. Walter Kiley, Plaintiff in Error.
    Gen. No. 34,478.

      Opinion filed April 15, 1931.
    Elliodor M. Libohati, for plaintiff in error; Everett Jenkings and Harold Sitllivah, of counsel.
    Johh A. Swaksok, State’s Attorney, for defendant in error; Otho S. Fasig, Hehry T. Chace, Jr. and Edward E. Wilson, Assistant State’s Attorneys, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Walter Kiley, James Giano and Anthony Di’Giovanni were convicted at the July Term 1929 of the criminal court of Cook county for the crime of conspiracy to manufacture a bomb and to destroy certain property. Kiley’s punishment was fixed by the jury at imprisonment in the penitentiary and a fine of $2,000. After overruling his motions for a new trial and in arrest of judgment, the court sentenced Kiley to the penitentiary for a term fixed by statute and ordered him to pay the sum of $2,000 and the costs of the trial. Neither Giano nor Di’Giovanni moved for a new trial. This writ of error is prosecuted on behalf of Kiley to reverse the judgment entered against him.

As grounds for reversal defendant urges that (1) the alleged confessions of Giano and Di’Giovanni made subsequent to their arrest were involuntary and inadmissible and their introduction in evidence was prejudicial to defendant’s rights; that (2) the evidence fails to show guilt beyond a reasonable doubt; that (3) substantial error was committed by the court in giving and refusing instructions to the jury.

Upon motions made by defendants to suppress and exclude the alleged confessions of Giano and Di’Giovanni on the ground that they were obtained by duress, and to exclude articles obtained by police officers from the home of Di’Giovanni and the automobile in which he and one Venuti were riding when arrested, the court, out of the presence of the jury, heard evidence bearing upon the defendant’s motions. The essential facts disclosed by this examination show that shortly after 12 o’clock p. m. on February 4, 1929, Daniel F. Healy and his police squad arrested Di’Giovanni and one Venuti who were riding in the former’s car just south of Twelfth Street on Halsted Street, in the City of Chicago; that when they searched Di’Giovanni’s automobile they found therein a package containing a gas pipe, caps, fuses and some powder, which, upon analysis, was shown to be of a highly explosive nature; that upon interrogation Di’Giovanni stated to Healy that the paraphernalia found in the package was a bomb to be laid at 8144 Blackstone Avenue; that Di’Giovanni had received the name and address of the owner of the premises on a piece of paper, but had prior thereto thrown it away; that he was hired to lay the bomb by Giano, known as Blackie, one of the defendants, who was employed as clerk in a drug store at Buena Avenue and Broadway, in the City of Chicago; that Giano had introduced him at the drug store to the defendant, Kiley, whom he remembered as a stout fellow with reddish hair; that Kiley had paid Giano $50 on account for services, and was to pay an additional $50 after the bombing; that upon receiving this information from Di’Giovanni the officers left instructions to have Di’Giovanni taken to the detective bureau, and hurried to the Flanders Hotel, where Giano was found in the lobby and Kiley in his room, and both were arrested and brought to the detective bureau; that while there, and later on the same day at the State’s Attorney’s office, Giano and Di’Giovanni made statements, in the presence of Kiley, implicating him in. the conspiracy. On both occasions Kiley sat by, heard the statements and remained silent. When interrogated by Healy he refused to discuss the matter. At the State’s Attorney’s office, Charles Mueller, who conducted the examination of the defendants Giano and Di’Giovanni, first fully advised Kiley of his constitutional rights, and then asked him whether he wished to make a statement, to which Kiley replied, “I don’t care to talk about anything unless I have counsel.”

The record contains several hundred pages of evidence adduced upon the motions to suppress the confessions and other evidence. Numerous witnesses testified in great detail as to the circumstances under which Giano and Di’Giovanni made statements to Healy in the presence of officers Greer, Kelly and Quiller, at the time of the arrest, later at the detective bureau, and finally in the office of the State’s Attorney. Giano and Di’Giovanni testified that they were beaten, tortured and threatened. They claim to have sustained bruises and injuries and to have been otherwise mistreated by various police officers before they were finally taken to the State’s Attorney’s office. These charges were denied by police officers, court attaches and others who stated that no threats, force or violence was exerted to induce the statements, but that the same were freely and voluntarily made. Judge Daniel P. Trudé, among others, was called as a witness. He testified that on February 6, 1929, there appeared before him as judge of the municipal court, the defendants Giano, Di’Giovanni and Kiley; that one of them, Di’Giovanni, complained of violence used by members of the police department; that he had Di’Giovanni taken to his chambers and stripped for examination; that the defendant displayed a bruise on the right side of his body about the size of a quarter, which appeared to the witness to have been made four or five days prior thereto, but that he saw no bruises on the defendant’s back or on other parts of his body as Di’Giovanni contended.

The evidence is too yoluminous to permit of a summary in detail. It suffices to say that the charges made by defendants are denied by numerous other witnesses and that the evidence relative to the circumstances under which the statements are alleged to have been made is extremely conflicting. The court heard all the evidence patiently, and after a careful and lengthy examination finally overruled the motions to suppress. Upon the hearing before the jury the defendants Giano and Di’Giovanni denied having made any statements, and repeated the charges of violence attributed to the police officers prior to their examination at the State’s Attorney’s office. The jury heard the testimony of all these witnesses. Whether the confessions are of such a character as to entitle them to be considered by the jury is a question for the -court, and the rules to be invoked by the court in determining this preliminary question are well settled in this State.

In determining the competency of the confessions as a preliminary question, the court cannot, of course, disregard the evidence of defendants that the confessions were forced from them by torture or physical violence and threats, but where the evidence is contradictory, as here, all the charges of violence being denied, the decision of the court admitting the confessions will not be reversed unless it is manifestly against the weight of the evidence. It was so held in People v. Guido, 321 Ill. 397, where it was also stated that it was not necessary that the court “should be convinced, beyond a reasonable doubt, of their voluntary character,” and then proceeded in its opinion to say, “though there may be evidence of threats or promises made to induce the making of the confession, if there is sufficient in the facts and circumstances proved to show that the confession was voluntarily made there can be no abuse of judicial discretion in allowing it to be presented to the jury.”

It is urged by defendant, however, that the court should not have permitted evidence of the confessions to be presented to the jury until the State had examined every police officer and those present when the confessions were made, so that the full facts might be disclosed. This was held to he unnecessary in the case of People v. Fox, 319 Ill. 606, where the court said :

“While the burden of showing that no improper inducement existed when the confession was made. is upon the prosecution, it is not necessary for the prosecution to produce all its evidence before any evidence is produced on behalf of the accused. After the State has made a prima facie case, then the burden of going forward with the proof properly shifts to the accused. ... In order to meet its burden of showing the confession to be voluntary, the prosecution must show by its witnesses the circumstances under which the confession- was made, with sufficient detail to enable the court to determine the question.”

The procedure outlined in the foregoing opinion was substantially followed in the case before us. The prosecution introduced sufficient evidence to make a prima facie case, then followed the evidence of threats, ■ violence and duress by the testimony of defendants, and thereafter the State produced evidence in rebuttal of defendants’ statements. The court carefully examined into all of the facts and circumstances necessary for its decision as to whether or not the confessions were admissible. Healy, Schumacher, who was also a police officer, and others categorically denied the contentions of defendants as to threats, violence and duress, and their testimony is corroborated by Judge Trude, who refuted Di’Giovanni’s statements as to injuries, which, if inflicted as contended for, would necessarily have still been visible 36 hours after arrest. We have carefully examined the record and are satisfied that the ruling of the trial court should not be disturbed as being against the manifest weight of the evidence.

Moreover, it cannot be contended that the ruling of the court was prejudicial to Kiley. His rights were more fully safeguarded by the court’s instruction to the jury that the confessions were not admissible as to him than the law requires. The fact that he remained silent, both at the detective bureau and later during the examination in the State’s Attorney’s office, and failed in both instances to deny incriminating statements made in his presence by G-iano and Di’Giovanni, made the confessions binding and admissible in evidence against him, and the court might well have so qualified the instruction. It was said in People v. Buckminster, 274 Ill. 435: “It has long been the settled rule of law that the voluntary confession of one person made after the commission of the crime cannot be admitted against a co-defendant unless made in the presence of the co-defendant and assented to by him. ’ ’

The doctrine enunciated in the Buckminster case and authorities there cited was approved in People v. Cardinelli, 297 Ill. 116, wherein the court stated: “The principle upon which statements made in the presence of one accused of crime are admitted in evidence against him is, that his silence when he might and naturally would deny the accusations of guilt if they were untrue is regarded as an acquiescence of their truth and an implied admission of guilt.”

It is next urged that the evidence is insufficient to show Kiley’s guilt beyond a reasonable doubt. The indictment charges in apt words that the defendants conspired to destroy or injure a building at 8144 Blackstone Avenue, in the City of Chicago. While the corpus delicti may not be proved by an extrajudicial confession alone, it may be considered in connection with the other evidence to establish a corpus delicti, and it is sufficient if evidence of other facts and circumstances so fully corroborates the confession as to show the commission of the offense beyond a reasonable doubt. (People v. Hein, 315 Ill. 76.) We believe that there is ample proof in this record to prove the conspiracy charged in the indictment, Di’Giovqnni was found in an automobile containing a powder bomb and fuse. The powder was analyzed and shown to be of an explosive character. Di’Giovanni was to be paid for planting the bomb at 8144 Blackstone Avenue the sum of $100, $50 of which was to be given him by Giano and the balance to be paid by Kiley after the service was rendered. The evidence discloses that Kiley had agreed to pay $100 to have the premises bombed. He made this contract with Di’Giovanni through Giano after a conversation in the drug store at Buena Avenue and Broadway. Kiley and Di’Giovanni were brought together through Giano as an intermediary, who paid part of the consideration to Di’Giovanni. Fifty dollars was found on Di’Giovanni’s person when apprehended. Aside from the confessions there is the undisputed evidence that Kiley and Giano were arrested by the- police in the same hotel. Giano admitted that he knew Kiley and Di’Giovanni. There is also the evidence of Charles Bundo that he had known Kiley for about two years; that he was employed in the Ideal Bond & Service Corporation; that he was asked by Kiley to intercede with one Koerber for the purpose of having the latter “lay off.” Koerber testified that he was in business with Kiley under the name of Ideal Bond & Service Corporation, of which he was president; that Koerber told Kiley that the business of the corporation was a “racket” and that he, Koerber, had decided to retire from business; that Koerber lived at 8144 Blackstone Avenue, which was the place that the conspirators had undertaken to bomb. All of this evidence, together with the statements of defendants made in Kiley’s presence and undenied by him, was submitted to the jury, together with the denials of the defendants Giano and Di’Giovanni that such statements had been made. It was the function of the jury to pass upon the question of fact whether the conspiracy, as charged, existed. They had an opportunity to hear all the witnesses and judge of their credibility. We are of the opinion that this evidence amply sustains the verdict finding the defendant, Kiley, guilty beyond a reasonable doubt.

Lastly defendant complains of instructions given and refused by the court. On request of the State’s Attorney the court gave to the jury the following instructions :

“The court instructs the jury, as a matter of law, that, to constitute the offense charged in this case, the intent alleged in the indictment is necessary to be shown, but that direct and positive testimony is not necessary to prove the intent; it may be inferred from the facts and circumstances shown by the evidence.” This instruction is criticized on the ground that the jury and not the court must pass on whether or not intent had been proved, and People v. Johnson, 333 Ill. 469, is cited in support of defendant’s contention. While it is true that the instruction given in the Johnson case was held to be erroneous, it was not because the instruction per se was improper, but because the facts, as disclosed by the evidence, did not warrant the giving of the same. It also appears in the Johnson case that, the judgment was reversed because of error committed by the cross-examination of a court’s witness, and the giving of other erroneous instructions.

It is further urged that the court erred in refusing an instruction offered on behalf of defendant which informed the jury that where an original confession is involuntary, subsequent confessions by the same defendant are inadmissible unless the influence which induced the original confession has been withdrawn. This instruction relates to the several statements made by the defendants. It is contended on behalf of Kiley that if Giano’s and Di’Giovanni’s first confessions made at the police station and the detective bureau, respectively, were induced by threats and violence, sufficient time did not elapse between these occurrences and their statements made at the State’s Attorney’s office to remove the influence that induced them and to render the latter confessions admissible in evidence. However, Kiley’s contention is predicated on the assumption that the original confessions were inadmissible,- and in view of the court’s ruling as to their admissibility and our finding as to the propriety of this ruling, we believe that the refusal of the instruction tendered by the defendant was proper.

There being no reversible error, the judgment of the criminal court will accordingly be affirmed.

Affirmed.

Wilson, P. J., and Hebel, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    S. R. Burgoyne, Appellee, v. J. L. Pyle et al., Defendants. Appeal of George W. Keeley and Marie A. Keeley, Appellants.
    Gen. No. 34,639.

      Opinion filed April 15, 1931.
    Nicholson, Crandall & Snyder, for appellants.

      John E. Owens, for appellee; Clyde C. Fisher, of counsel. A. S. & E. W. Froehlich, for complainant S. R. Burgoyne.
   Mr. Justice Friend

delivered the opinion of the court.

This is a mechanic’s lien proceeding which, together with case number 34538, comes up on appeal from a decree of the superior court of Cook county, finding liens in favor of complainant and two intervening petitioners, and fixing their claims as first liens upon the property in question. These cases were filed by the same complainant against the same general contractor, involving two adjacent and contiguous properties, one owned by the Crepps and the other by the Keeleys, defendants in this case. The two buildings, built from the same plans and specifications, are substantially identical in their construction and were erected under a single building permit. The same lien claimants who intervened in one case intervened in the other, and the attorneys for the respective owners in the two proceedings are identical. Both cases were referred to the same master, and heard at the same respective timés throughout. Substantially the same grounds for reversal are urged in both cases, with the exception that in number 34538 it is urged as an additional ground that the master and chancellor erred in accepting as evidence in that proceeding a carbon copy of a transcript of testimony given in this case.

The facts disclose that the real estate involved in this proceeding is located at 7945 Crandon Avenue, in Chicago, Illinois; that immediately adjoining this property on the south is the Crepps property, known as 7949 Crandon Avenue; that J. L. Pyle had separate general contracts for the construction of brick apartment buildings on these two lots for the Keeleys and Crepps at $20,000 and $20,250 respectively, the difference in price being represented by an incinerator to be installed in the Crepps building; that the subcontracts of Burgoyne, the complainant, and of Heitmann Lumber Company, an intervening petitioner, embracing both buildings, were made orally with Pyle, the general contractor; that Pyle constructed the buildings contemporaneously and the work and material furnished proceeded at the same time on both buildings.

As applicable to all the lien claims it is first urged that no affidavit was filed as a basis for the issuance of process against unknown owners. There was an affidavit attached to the bill of complaint which bears no separate title but refers specifically to “the above entitled cause” and “the foregoing bill of complaint.” Defendants argue that the statute requires the affidavit to be filed and “that it cannot be said that handing to the clerk of the court a five page document with the legend on the back ‘Bill for Mechanic’s Lien’ amounts to anything more than a request to the clerk to file the document as a bill of complaint.” This contention is not supported by the weight of authority however. In Harris v. Lester, 80 Ill. 307, one of the principal contentions made to show want of jurisdiction was that the affidavit of nonresidents of several defendants was a nullity because it bore no title either as to the court in which it was filed or the parties to the proceeding. The court in passing upon the validity of this affidavit as a basis of jurisdiction said that:

“An affidavit is simply a declaration, on oath, in writing, sworn to by a party before some person who has authority under the law to administer oaths. It “does not depend on the fact whether it is entitled in any cause or in any particular way. Without any caption whatever, it is nevertheless an affidavit.

“All the statute requires in such cases is, that petitioner shall file an affidavit in the office of the clerk of the court in which his petition is pending, showing that any defendant resides or has gone out of the State, to authorize the clerk to make publication as to such defendant. It does not require the affidavit shall be in any particular form, or even that it shall be entitled in the cause.” McCormick v. Wells, 83 Ill. 239; Hays v. Loomis, 84 Ill. 18, and Connely v. Rue, 148 Ill. 207, are to like effect, and we regard these authorities as expressive of the correct rule in this State.

It is further contended that the affidavit is inadequate and insufficient in that it fails to state that upon diligent inquiry the names of the persons who are unknown cannot be ascertained. In advancing this argument counsel clearly confuses two sections of the statute. It is necessary, of course, in order to obtain service upon unknown owners to file two affidavits,' one under section 7 and the other under section 12 of the Chancery Act, Cahill’s St. ch. 22, M 7 and 12. The latter affidavit was duly filed in this case, and no contention is made with reference thereto. It is the affidavit filed under section 7 that is assailed. This section of the statute provides: “An affidavit shall be filed by the party desiring to make any unknown person a party, stating that the names of such persons are unknown; and process shall be issued against all parties, by the name and description given as aforesaid; and notices given by publication, as is required in this Act, shall be sufficient to authorize the court to hear and determine the suit, as though all parties had been sued by their proper names. ’ ’

Notwithstanding the language of this statute, it is contended that the affidavit should contain an averment that upon diligent inquiry the names of the parties cannot be ascertained. The statute requires no such words nor do the authorities cited in support of the contention. The citations contained in defendants’ brief are rulings upon affidavits of nonresidence under section 12 and are therefore- inapplicable. The affidavit is further criticized on the ground that it describes unknown parties as “unknown owner or owners, holder or holders of the notes” described by the trust deed in question. This criticism is based upon the description being more specific than required by the statute. This is mere surplusage, however, and cannot vitiate the validity of the affidavit. Moreover this appeal is prosecuted by the owners of the property only. These defendants are not unknown and the decree adjudicates nothing between them and the mortgage holders. The only party who could complain of a failure to file a proper affidavit to acquire jurisdiction over the unknown owners would be the unknown owners themselves, holders of the mortgage notes.

It is next urged that there is a want of necessary parties in that the Greenacre Acceptance Company, which filed a bill to foreclose a mechanic’s' lien for $76.32 in the circuit court of Cook county, and the New City Electric Company, which instituted an action in assumpsit in the municipal court of Chicago, were not made parties to this proceeding. It may be conceded, of course, that necessary parties as defined by the Liens Act, Cahill’s St. ch. 82, should be made parties to a bill for mechanic’s lien. However, a lack of parties in interest, unless they be such that the court cannot proceed to a final decree in their absence, must be taken advantage of by special demurrer. It was so held in LaCrosse Lumber Co. v. Grace M. E. Church, 180 Ill. App. 584. This was not done in the instant case. Moreover, it appears that the bill complained of herein was filed October 17, 1927, the title being registered under the Torrens system. Everyone who had an interest as disclosed by the certificate of title in the registrar’s office was made a defendant. The Green-acre Acceptance Company filed its bill to foreclose on January 25, 1928. This suit involved a demand for $76,32 for some 35% square yards of linoleum contracted for by the defendants, not Pyle, and was filed more than three months after the bill of complaint in this case. In the New City Electric Company suit the plaintiff sought no lien according to the pleadings; it was a plain contract action and the suit therefore constituted no claim against the property in question. Neither is there any evidónce in this record that Burgoyne, the complainant, knew, at the time he filed his bill, of the existence of ’ any parties interested in the premises other than those disclosed by the Torrens certificate,' all of whom were named as defendants, and it has not been shown by the defendants herein that there were any such parties. In the absence of any showing to the contrary, it will be presumed that there were no other lien claimants than those in the case. The burden of showing a lack of necessary parties is on the defendants. (Matot v. Barnheisel, 212 Ill. App. 489.)

Defendants further contend that the amendment to the bill of complaint sets forth a new and different cause of action as to Burgoyne’s claim, and that the new cause of action was not commenced within the four months’ period limited by section 33 of the Liens Act, Cahill’s St. ch. 82, Tf 33. The amendment in question strikes out the words in parenthesis (“excluding excavating, cement work and cut stone”) and substitutes for those words “excluding cement work but including excavating and cut stone.” Numerous cases are cited upon this branch of the case. The question to be determined in each instance is whether the amendment sets forth a new cause of action or is merely a restatement of the same cause of action. For the determination of this question the courts have mainly sought to ascertain (1) whether the same evidence would equally prove the case stated in each pleading, and (2) whether the granting of relief under the original pleading would constitute a bar to the claim as stated in the amended pleading. The case of Carlin v. City of Chicago, 262 Ill. 564, states the rule clearly as to the first inquiry. The court in its opinion says:

“If the amended declaration re-states the original cause of action in a different form, the filing of such an amendment relates back to the commencement of the suit and the Statute of Limitations is not a defense. North Chicago Rolling Mill Co. v. Monka, 107 Ill. 340; Swift & Co. v. Foster, 163 Ill. 50; Swift £ Co. v. Madden, 165 Ill. 41; Chicago and Eastern Illinois Railroad Co. v. Wallace, 202 id. 129; Chicago City Railway Co. v. McMeen, 206 Ill. 108; Wabash Railroad Co. v. Bhymer, 214 Ill. 579; Heffron v. Rochester German Ins. Co., 220 id. 514.

‘ ‘ One test .by which it is determined whether the different counts are for the same or different causes of action is whether the same evidence would support a judgment rendered upon either. This does not mean that the evidence must be admissible, indifferently, under both counts if it was objected to on the ground of variance. The question under this test is, would the same evidence, unobjected to, sustain the substantial averments of both counts ? Another test is, could a judgment under one count be successfully pleaded as a former adjudication against the cause of action set out in the other count? In the case at bar the cause of action stated in the original and amended declarations is the same under either test, and the demurrer to the plea of the Statute of Limitations should have been sustained. ’ ’

As to the second test, the case of Eisendrath Co. v. Gebhardt, 222 Ill. 113, a mechanic’s lien case, is particularly applicable to the facts before us. The court says:

“It is next argued that if the original bill was filed in time the amended bill set forth a new cause of action on November 10, 1904, and the Statute of Limitations had then run. The cause of action was the same. The property, the building, the work done, the price, the architect, the parties and the date and amount of the architect’s certificate were the same. If relief had been granted under the original bill it would have been a bar to the cause of action for the same work on the same property stated in the amended bill. The amended bill did not state a new cause of action.”

As applicable to the claim of Burgoyne, we regard these decisions as controlling. His cause of action is a claim as subcontractor under Pyle for the mason work on the building at a fixed price, $3,815. None of the essentials of his claim is changed by the amendments. According to the record, Burgoyne testified, without objection, that his contract included the excavating and cut stone. The amendment was made long after the proofs were closed and only when defendants pointed out what they believed to be a variance between the pleadings and the proof. Thereupon the amendments were made to conform to the proof, which is the practice approved by all of our courts. The cases cited by defendants involve matters in which there was either a change in the theory of recovery, the inclusion of new property, or the statement of a good cause of action for the first time by the amendment, and are, of course, not applicable to the instant proceedings.

It is further contended that there is no proof of delivery of materials to the premises involved, and that even though this proof had been made, it was also incumbent on complainant and the intervening petitioner to show what materials were used in the construction of each building. Counsel by their argument seek to make this contention applicable to both Burgoyne and the Heitmann Lumber Company. However, Burgoyne had a contract for the mason work, according to plans and specifications, and for a fixed price. His contract did not call for materials to be furnished. Therefore the contention is not applicable as to him, but only as to the Heitmann Lumber Company, which was awarded a lien for lumber delivered to and used in the two buildings. It appears from the testimony of teamsters, who made the deliveries, and from delivery tickets introduced in evidence that the total of $2,674.97 of lumber was delivered to the buildings in question. Defendants argue that because, out of a given delivery of lumber, more was consumed in one building than in the other, the claimant failed to prove its case under the provisions of section 7 of the Liens Act. That part of section 7 which is material to this issue reads as follows: “provided it is shown that such material was delivered either to said owner or his agent for such building or improvement, to be used in said building or improvement. . . . ’ ’ Under the provisions of this section the claimant is given the alternative of proving either that the material for which the lien is claimed was actually used in the building, or that it was delivered for the purpose of being used. This alternative is important only where the evidence fails to show that the materials were used, or where it affirmatively appears from the evidence that they were not used. In the case before us the claimant not only proved delivery, but. also showed that the lumber was actually used in the construction of the buildings. It was not necessary for the intervening petitioner to show that out of every delivery of lumber portions of it were used in one building or the other; it was a sufficient compliance with the statute to prove that all the lumber which was used in the buildings was the identical lumber delivered for the purpose of being used therein, and this fact is abundantly shown by the evidence. These buildings were alike in construction with only some trivial differences. Pyle’s foreman testified, without contradiction, that the lumber was used equally in both buildings. The cases cited in defendants’ brief do not bear out their contention. In Cooper v. Palais Royal Theatre Co., 242 Ill. App. 184, the lumber which was intended for use in form work was never so used, nor does it appear that it was delivered for use. In Hoier v. Kaplan, 313 Ill. 448, the court held that certain items which were not intended to enter into the structure were not lienable, but the court affirmed the right to a lien for materials delivered for the purpose of being used in the structure although never used. In Beidler & Co. v. Hutchinson, 233 Ill. 192, the evidence failed to show that the materials were used in •the structure.

In this connection defendants also claim that there is a variance between the petition of the Heitmann Lumber Company and the proofs made in support of its claim. This contention is based upon the fact that the intervening petition has attached to it an itemized list of all the deliveries of lumber, and states that one-half thereof was used in the Keeley building, whereas it appears from the evidence that each delivery was not equally divided in its incorporation into the respective structures. This variance is not specifically pointed out in the exceptions to the master’s report or in the assignments of error, as is required under the authorities. Edward Hines Lbr. Co. v. Great Lakes Chemical Works, 237 Ill. App. 246. Furthermore, as was said in Moorehead v. Eggmann, 190 Ill. App. 578, discrepancies and irregularities of this character will not defeat the allowance of a lien, provided the substance of the claim is properly set forth.

There remains for consideration the claim of William Borrman, upon which the chancellor awarded a lien in the sum of $394, together with interest. Borrman installed heating systems in both buildings under contracts with Pyle, the general contractor. Before the work was completed he received from the Charles Ringer Company, who made the construction loan, the sum of $1,000 on account, representing $500 on each building, and gave a receipt therefor stating the same to be “ on account of contract with J. L. Pyle for steam fitting and heating at 7945 and 7949 Crandon Avenue,” dated September 19, 1927. Prior thereto on July 7, 1927, he delivered a waiver of lien to Ringer’s representative, Fitch, reading as follows: “the undersigned William Borrman has been employed by J. L. Pyle to furnish labor and heating material to date for the building known as No. 7945 Crandon Avenue; also 7949, in the City of Chicago, Cook County, Illinois,” and it is contended that Borrman’s claim is barred because of this waiver. The evidence discloses that Borrman’s wife prepared the waiver of lien and typed therein the words “labor and heating material to date”; that Borrman talked to Fitch at the time the $500 payment was made on each building, who told him to go ahead and get the building finished as they wanted to occupy the same and rent it, and that he could get the balance of his money when the building was finished. There is thus presented the question as to whether this waiver expressed the intention of the lien claimant to waive his claim. It is evident from the facts in this case that the waiver of lien given by Borrman was intended to be only a partial waiver for labor and materials furnished and was so understood by all the parties. Exhibits in evidence indicate that the installation of the heating systems had not been completed when payment on account was made to Borrman. Bills were subsequently rendered to him by Western Plumbing Supply Co. for $36.59 as of September 23, 1927, by Kewanee Boiler Co. for $269.97 as of September 24, 1927, and the record contains a stipulation that one Graham would testify to the delivery to the Crepps building of the articles enumerated in these bills. There is also a stipulation that two workmen would testify that they were employed by Borrman on the Crepps building on September 27, 1927, and rendered services for 11 hours pursuant to their employment; that another workman employed by the Western Plumbing Supply Co. was hired during the month of September, 1927, and that he delivered the invoice of goods shown on one of the bills in evidence to the Crepps building on September 23, 1927.

It has been held that in cases of ambiguity the doubt should be resolved against the waiver, since it should be presumed, in the absence of clear evidence to the contrary, that one has not disabled himself from the use of so valuable a privilege as that given by statute for the enforcement of builder’s rights in the circumstances involved. (Concord Apt. House Co. v. O’Brien, 128 Ill. App. 437; Davis v. LaCrosse Hospital Ass’n, 121 Wis. 579.) In the former case the court said:

“If the parties had so intended, they would have made it evident by their contract. To be effective, there must be an express covenant or a covenant resulting by implication from the language used, so plain that a mechanic could so understand without seeking a professional interpretation as to its legal effect.”

We find no reversible error in the record, and the decree will accordingly be affirmed.

Affirmed.

Wilson, P. J., and Hebel, J., concur.


text:
    Lincoln Trust & Savings Bank, Appellee, v. Ernst P. Nelson et al., Defendants. Appeal of Efthemios A. Efthemiou and Tom B. Kormas, Appellants.
    Gen. No. 35,054.
    Opinion filed April 15, 1931.

      John C. Q-ekas, for appellants.
    Litsinger, Healt & Reid, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

Lincoln Trust & Savings Bank filed its bill of inter-pleader in the circuit court of Cook county, stating that there was pending in the superior court of Cook county an action at law against it, instituted by the defendants Efthemios A. Efthemiou and Tom B. Kormas, wherein they sought to recover certain money theretofore paid to complainant; that the same fund was claimed by the other defendants, Ernst P. Nelson and Selma W. Nelson, and that it, the Lincoln Trust & Savings Bank, was a mere stakeholder, willing to deposit the money in court, and have the said claimants interplead among themselves and determine its ownership. Upon due notice to all parties in interest, who appeared by counsel, the chancellor heard complainant’s motion for an injunction. Certain minor changes in the bill were suggested by the court, and on amendments being filed, an order was entered directing complainant to deposit the sum of $3,838.74, the amount involved, with "the clerk of the court and restraining Efthemiou and Kormas from prosecuting their action at law in the superior court. From this order defendants Efthemiou and Kormas prayed an interlocutory appeal and filed their bond.

It is urged that the amended bill of complaint is insufficient to support the injunctional order. Briefly stated the amended bill alleges that the complainant, Lincoln Trust & Savings Bank, is a duly organized banking corporation; -that about December 1,1924, the Nelsons deposited in the bank for collection a certain instrument in writing purporting to be a real estate sales contract between Oakton East Prairie Realty Trust, of which the Chicago Title & Trust Company was trustee, and Efthemios A. Efthemiou and Tom B. Kormas, providing for the sale by the Oakton East Prairie Realty Trust to Efthemiou and Kormas of certain real estate described in the agreement, at a purchase price of $4,500, to be paid to the Lincoln Trust & Savings Bank in instalments, with the exception of the first payment of $900, which was acknowledged by the agreement as having been paid to the manager of the trust; that pursuant to the deposit of the agreement with the bank the defendants Efthemiou and Kormas paid monthly, sums aggregating $3,470.68, which represent all the payments listed on the back of the contract, a copy of which was attached to the bill of complaint; that in addition to the foregoing amount there had been paid by Efthemiou and Kormas to the bank $368.06 for taxes and special assessments, making a total sum paid by them of $3,838.74; that on October 25, 1930, Efthemiou and Kormas demanded from the bank the return of the money thus paid, and thereafter on November 18, 1930, instituted suit in the superior court of Cook county for the recovery thereof ; that by their demand in writing and by their declaration filed in said suit in the superior court, Efthemiou and Kormas made known and claimed and still insist that said written agreement was not a valid contract and that they did not receive any consideration for the payments made to the bank, and were therefore entitled to the return thereof; that the Nelsons at the time of the deposit of said written agreement with the bank, and at various times thereafter, claimed and still insist that prior to the execution of said agreement they were the owners of certain of the real estate mentioned in the written agreement, and as such, being desirous of subdividing and selling the same, adopted the trade name of Oakton East Prairie Realty Trust and employed one Edward A. Dato as agent and manager of said premises and through him entered into the contract with Efthemiou and Kormas; that prior to the making of said agreement and for the greater protection of purchasers they had conveyed title to the premises to the Chicago Title & Trust Company, in trust, under an agreement whereby the trustee should hold title, and as the contracts were performed by the purchasers said trustee would, upon direction of the agent and manager of the trust, convey by trustee’s deed the title to purchasers of the property, and providing further that when said contract with Efthemiou and Kormas was fully performed, the manager would direct the trustee to convey the premises to Efthemiou and Kormas by its trustee’s deed; that all the moneys paid by Efthemiou and Kormas to the bank under the provisions of said written agreement were the property of the Nelsons and they were therefore entitled to have the complainant pay to them the sum of $3,838.74 so received from Efthemiou and Kormas, and demanded that complainant pay said sum to them.

It thus appears from the only pleading before us, that the ownership of the fund involves disputed questions of fact and doubtful propositions of law with reference to the existence, nature and effect of the trust agreement, the validity of the contract made by Efthemiou and Kormas, whether the payments thereunder were voluntarily made with knowledge of the facts and the question of privity between the Nelsons and Efthemiou and Kormas. Obviously complainant was not required to determine these questions at its peril and decide which of the defendants was entitled to the fund claimed. It, therefore, properly filed its bill which contains all the essentials of a bill of inter-pleader. Neither was the chancellor required to determine these doubtful questions upon consideration of the motion for a temporary injunction. In urging the numerous grounds relied upon for reversal, counsel evidently misapprehended the purpose of a temporary restraining order, for he argues the merits of the cause as if presented on a demurrer to the amended bill of complaint.

The primary purpose of a temporary injunction is to preserve the matters in statu quo until the court has had an opportunity to consider the cause upon its merits or upon demurrers presented and argued. An interlocutory appeal is not intended as a short cut to a court of appeal and thus to dispose of a cause upon its merits without giving the trial court an opportunity to first consider it. If defendants confidently believed the amended bill to be insufficient they should have interposed their demurrers to it, and if unsuccessful in the trial court, assumed the responsibility of their position. Should we- pass upon the merits of the bill upon this interlocutory appeal, it would still afford defendants an opportunity to present demurrers without requiring them to elect as to whether they would abide by their demurrers or answer the bill.

Upon appeal from interlocutory "orders the reviewing court will simply determine from the averments of the bill whether the party probably is entitled to the relief sought. The rule and the reason therefor are well stated in the case of McDougall Co. v. Woods, 247 Ill. App. 170, recently decided by this court, in which it was said:

“In appeals from interlocutory orders it is not pur province to determine the rights of the parties in the subject matter of the litigation, but simply to determine from the averments of the bill whether the party probably is entitled to the relief sought. Where such an order is improvidently granted without notice, in a case where notice should have been given, or where the statute requires a bond as a condition precedent and none has been given, the interlocutory orders so improvidently granted will be reversed without reference to the merits of the cause. . . . The statute permitting appeals from interlocutory orders was not intended primarily to provide for a review by this court of the rulings of the trial court on demurrers or to secure from this court its judgment on demurrers before the trial court has ruled thereon. A bill, when first filed, is frequently demurrable, especially bills for injunctions which are usually hurriedly prepared, but which may be made good by proper amendments which the first court has power to allow. We have no such power. The primary purpose of the statute is to permit a review of the exercise of the discretion lodged in the chancellor with the purpose of determining whether the interlocutory order probably was necessary to maintain the status quo and preserve the equitable rights of the parties.” High on Injunctions, 4th ed. see. 1696; 32 Corpus Juris, p. 20; Railton v. People, 83 Ill. App. 396, and Friedman v. Peckler, 255 Ill. App. 199, are to same effect.

A reading of the amended bill of complaint, together with the contract attached thereto, sufficiently shows that the Nelsons on the one hand and Bfthemiou and Kormas on the other, claim the same fund; that the dispute between them as to the ownership thereof arises out of the same transaction, based upon a trust deed and contract shown by the pleadings; that the complainant, a stakeholder and disinterested in the fund itself, filed its bill in good faith and that there is no collusion between it and any of the parties to this proceeding. The court had jurisdiction of the parties, who were before the court when the motion was presented, and of the subject matter of the litigation. It was sufficient for the chancellor to inquire whether the complainant was probably entitled to the relief sought. It was not incumbent upon him to pass upon doubtful questions of law and fact. Two groups of defendants were claiming the same fund. One had already instituted suit for the recovery thereof. To have denied the temporary injunction, the chancellor would probably have subjected complainant to another suit at law and possible double liability resulting therefrom. Under the circumstances it was the court’s duty to issue the injunction and thus preserve the status quo until the cause might be heard either upon demurrers to be filed or upon a final hearing. There is nothing to indicate that the chancellor improvidently entered the order appealed from or that he in any way improperly exercised the discretion lodged in him.

It is further contended that the injunction should not have been issued without bond. The court required complainant to deposit the amount of money involved with the clerk of the court as a condition of the issuance of the writ. The statute does not make a bond mandatory except where a judgment is enjoined. (Skelers v. Meyer, 246 Ill. App. 18; Herzberger v. Barrow, 115 Ill. App. 79.) We believe that the allegations of the amended bill of complaint stated sufficient ground for the issuance of an injunction without bond.

For the reasons stated the order appealed from will be affirmed.

Affirmed.

Wilson, P. J., and Hebel, J., concur.


author: Mr. Justice Hebel

text:
    Katherine Rutowicz, Appellee, v. United Motor Coach Company, Appellant.
    Gen. No. 34,384.

      Opinion filed April 15, 1931.
    Wetten, Pegler & Dale, for appellant.
    Kremer, Branand & Hamer, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal from a judgment in the sum of $2,048, entered in the superior court upon the verdict of the jury in favor of the plaintiff, which judgment was entered by the court after overruling motions for a new trial and in arrest of judgment.

The declaration filed by the.plaintiff is based upon an action on the case to recover damages for personal injuries, the first count of which charges the defendant with general negligence in connection with the management and operation of its bus.

The second count is based upon the statutory provision to the effect that no person shall drive a motor .vehicle through portions of any incorporated city, town or village at a speed greater than is reasonable and proper, having regard to the traffic and use of the way, etc.

The third count is based upon a section of an ordinance of the City of Chicago contained in Municipal Code of 1922, section 3821, and alleges that the defendant violated the said ordinance by driving its bus on the left side of the highway so that it ran into and struck the automobile in which the plaintiff was riding.

The fourth and fifth counts were withdrawn by counsel for the plaintiff at the close of the plaintiff’s case. The fifth count set forth the injuries which the plaintiff claimed she sustained as a result of the accident in question. Such allegation was adopted in the preceding counts.

From the evidence it appears that the accident complained of occurred on July 22, 1928, on Sunday evening about 7:00 o’clock on the road known as the Northwest highway. This road runs from a point where it intersects Milwaukee Avenue in the northwest part of Chicago, in a westerly direction through the villages of Park Ridge, Arlington Heights, Palatine, Barrington, etc. It is the main highway in that direction to the forest preserves of Cook county, and is also one of the main routes to the Wisconsin lakes.

The route of the bus operated by the defendant, was from Milwaukee and Lawrence Avenues to Park Ridge and return, the distance one way being about six miles.

There were six passengers in the bus at the time of the accident, and it proceeded in a westerly direction following the line of traffic, running close to the north or right-hand curb as passengers entered and left the bus at any street intersection along the route that might be most convenient to them. Immediately ahead of the bus at the time was an automobile of the ordinary type, and ahead of the machine was a large truck, carrying a load of young people.

The bus was a large vehicle, weighing approximately 12,000 or 14,000 pounds. It was about 28 feet long and about 8 feet wide. It was equipped with a foot brake and also with an emergency brake, the lever of which was pushed forward when it was necessary to use the emergency. The tires on the bus were heavy pneumatics, 38x7 inches. The speed of the bus was controlled by a governor on the engine so that it could not exceed 30 miles per hour.

It is apparent from an examination of the record that there is a conflict in the evidence as to just hoW this accident occurred.

The evidence of the plaintiff’s witnesses is to the effect that the bus operated by the defendant was turned to the left out of the line of traffic in which it was moving, and collided with the car in which the plaintiff was injured. The traffic was heavy on the day in question, and a line of cars was going in the opposite direction. If the facts were as testified to by the witnesses for the plaintiff they would establish the negligence of the defendant in the operation of the bus.

On the other hand some of the witnesses for the defendant who were, passengers on the bus testified that the bus operated by .the defendant’s servant did not turn to the left at any time to pass other vehicles, and it is pointed out in the brief of the defendant that there were certain physical facts resulting from the collision, such as the damage to the left front wheel of the bus, and an exploded tire, that could have been caused only by the driver of the car in which the plaintiff was riding turning to the left and into defendant’s bus.

It is earnestly insisted by the defendant that the testimony of its witnesses tallied in every respect and was perfectly consistent; that, on the other hand, no two witnesses for the plaintiff told the same story. While this court will analyze the facts and determine whether the manifest weight of the evidence is against the verdict, the jury has certain functions under our theory of jury trials, one of which is to determine the weight of the evidence, and in doing so they must pass upon the credibility of the witnesses, apply to the facts the law as given in the written instructions by the court, and determine from the facts the issues between the parties.

We are unable to find from this record that the evidence of the plaintiff is utterly inconsistent with the physical facts, or that the jury was not warranted in finding the issues for the plaintiff.

It is urged by the defendant that the plaintiff was guilty of contributory negligence from the fact that when the bus was about 75 feet from the car operated by her husband she became “scared,” and that in failing to call her husband’s attention to the oncoming bus, she was guilty of negligence. It does not appear from the record that her husband did not see the approaching bus; in fact he testified that when the bus was about 75 feet ahead óf him it cut over to the left onto" the right of way of the automobile operated by him, and that at the time he turned to the right and applied the brakes. The plaintiff under such circumstances could not have aided the driver by an outcry from the back seat, which she occupied at the time. From the facts, the question of contributory negligence is one for the jury, and we are not inclined to disturb the verdict upon that ground.

It is further contended by the defendant that the plaintiff should not be permitted to recover upon the third count of her declaration, which is based upon section 3821 of the Municipal Court Code of 1922 of the City of Chicago, which is as follows:

“Vehicles meeting. In all cases of persons meeting each other in vehicles in any highway or thoroughfare or upon or near any bridge, each person so meeting shall in all cases turn off and go to the right side. ’ ’

It appears that on the trial the ordinance was read to the jury by counsel for the plaintiff, and that at the time of the accident, which occurred on July 22, 1928, this ordinance was not in force, for the reason that the traffic ordinances of the City of Chicago were revised by the city council in March, 1927, and the ordinance quoted is not in the Revised Traffic Regulations. We are of the opinion that the motion of the defendant to exclude this evidence and that the court direct a verdict of not guilty as to said count' of the plaintiff’s declaration, should have been allowed.

The question before us is, was the action of the trial court reversible error? The plaintiff under the evidence was entitled to have the cause submitted to the jury under the allegations of the first count of her declaration, which, in short, is a common law count alleging general negligence. The plaintiff’s action is based upon the negligence of the defendant, in that its servant turned the bus to the left in the path of the car in which the plaintiff was riding, and caused a collision.

We are all familiar with the rule that the drivers of cars are to remain on the right-hand side of the road, and that in turning out to the left they must operate a moving car so as not to injure or damage a person in an approaching automobile or vehicle rightfully upon the right of the road. The action of the trial court in its ruling upon the admission of this ordinance is not such error as would justify a reversal.

The Appellate Court in the case of Davis v. Missouri & Illinois Coal Co., 186 Ill. App. 478, applies a rule to the facts in that case that is applicable to the question before us, when it says :

“It is next contended by counfeel for appellant that the court erred in not excluding the evidence and in not directing a verdict for the defendant as to the fourth or common law count of the declaration. We are of the opinion that this contention is well founded. Under this count it was as necessary for the plaintiff to prove that he was in the exercise of due care and caution for his own safety as to prove defendant’s negligence. It appears from this evidence clearly that the appellee knew of the dangerous condition of this roof when he was engaged at work thereunder, which was clearly contributory negligence, and being so he was not entitled to recover upon this count of the declaration. We are satisfied, however, from an examination of this case, that the appellee was entitled to recover under the statutory counts, and under the rules as repeatedly laid down by, the Supreme and Appellate Courts, that even though there may be a count in the declaration not proved, if there are other counts in the declaration that are proved, the judgment should not be reversed on account of the failure to exclude the evidence under such count, but that judgment may be rendered and sustained under the counts that have been proved.”

It appears from the bill of exceptions that the defendant objected to the giving of the plaintiff’s offered instruction as follows: “If the jury believe from the evidence that the plaintiff was at and before the time of her injury in the exercise of ordinary care for her own safety and was injured by the negligence of the defendant, the jury should find the defendant guilty” — - and suggested that if the court would modify the instruction to read: “If the jury believe from the evidence that the plaintiff was at and before the time of her injury in the exercise of ordinary care for her own safety and was injured by the negligence of the defendant at the time and in the manner set forth in the plaintiff’s declaration, then the jury should find the defendant guilty” — it would withdraw its objection and agree that said instruction was a proper one to be given to the jury; that the court did give said instruction in its modified form, as suggested by the defendant.

There is attached to the bill of exceptions an addition entitled, “An Interlocutory Bill of Exceptions,” from which it appears that the defendant objected to the insertion that the defendant agreed to the modification of the plaintiff’s instruction in the bill of exceptions, for the reason that the defendant by its counsel did not agree to its modification. By this action the defendant questioned the integrity of the court in signing a bill of exceptions containing the agreement of counsel that the modified instruction was a proper one for the jury. There is not a word in the record to indicate that the agreement made in open court, when the instruction was being considered by the court, was not a fact. The only excuse offered is that the court reporters were not present and that counsel’s recollection was contrary to the recollection of the court. We will rely on the bill of exceptions in the record before us, and believing that it sets forth the truth, we will not consider the objection made by the defendant.

It is further contended by the defendant that upon the withdrawal of the fifth count of plaintiff’s declaration, which was the only count that alleged injuries to the plaintiff, no proper allegation was set forth in the declaration; that the plaintiff’s evidence as to the injuries sustained was incompetent and irrelevant, and that such evidence was erroneously in the record.

It does not appear from any statement in the abstract or in the brief of the defendant that a motion to exclude said evidence for want of a proper allegation was made. However, it would seem from the following instruction of the defendant, which was read by the court to the jury, that no such motion was made:

“With respect to the ailments and disabilities claimed by the plaintiff in this case, the law requires plaintiff to prove by the greater weight of the evidence not only that such ailments really exist or have existed, but also that they are the result of the accident in question. You have no right to guess or conjecture merely that any ailment complained of by the plaintiff was the result of the accident in question, but before plaintiff can recover for such, she must prove by the greater weight of the evidence that they do proceed from and are the result of the accident. The burden is not upon the defendant to show that such ailments arise from any other cause, and even if the evidence is evenly balanced between the plaintiff and the defendant on such question, this rule of law still applies and you cannot allow the plaintiff for any such ailments which are not proved by the greater weight of the evidence to be the result of the accident in question. ’ ’

This action by the defendant in asking that the jury be instructed as it was, amounted to a waiver, and the defendant cannot at this late day ask this court to reverse on the ground contended for by the defendant. Forsyth v. Vehmeyer, 176 Ill. 359.

The question of damages suffered is one for the jury, and from the evidence, the verdict of the jury was not the result of passion, bias or prejudice, and is fully supported by the evidence,

In conclusion, there is no error in the record that would warrant a reversal. Accordingly, the judgment is affirmed.

Affirmed.

Wilson, P. J., and Friend, J., concur.


text:
    Mabel Peacock Browne et al., Plaintiffs in Error, v. Charles J. Vopicka, Defendant in Error.
    Gen. No. 34,403.

      Opinion filed April 15, 1931.
    Rehearing denied April 27, 1931.
    Otto Gresham and Orpheus A. Harding, for plaintiffs in error.
    Mater, Meter, Austrian & Platt, for defendant in error.
   Mr. Justice Hebel

delivered the opinion of the court.

This case comes to this court on a writ of error to review a judgment entered in the municipal court of Chicago in favor of the defendant and against the plaintiffs, in an action in a plea of trespass on the case on promises brought by the plaintiffs against the defendant for a breach of a contract for the sale of certain real estate in Chicago, Illinois.

Plaintiffs’ fifth supplemental and amended statement of claim alleges that on June 27, 1924, the defendant by one Martin Carlson, his agent, bargained for and bought from the plaintiffs for the sum of $80,000, the property known as 1105-1107 South State Street, Chicago, the legal description of which is described in the contract. The defendant failed to carry out his contract, and on April 9, 1926, the plaintiffs sold the property to one Joseph J. Lahowetz for $75,000.

In the affidavit of defense the defendant denies that he entered into or ratified a contract with the plaintiffs for a purchase of the property; that Martin Carlson was an agent of the defendant, or that he had authority in writing to enter into a purchase contract on behalf of the defendant, and by an amendment the defendant more specifically pleads the statute of frauds, and alleges that there was no contract or memorandum signed by the defendant, or by any other person authorized in writing.

A jury trial was waived by the parties and at the conclusion of the plaintiffs ’ evidence the court, on motion of the defendant, entered a finding for the defendant, and judgment on such finding.

The evidence of the plaintiffs is to the effect that on May 31, 1924, the defendant wrote to Martin Carlson, a real estate broker in Chicago, notifying him to call on the defendant with a view to discussing plans for securing options on various pieces of property, and on June 5,1924, the defendant again wrote to Carlson, setting forth the terms and prices upon which the defendant desired to “obtain the option on four different lots, situated on State and Eleventh Streets, in the City of Chicago.” In the same letter it" was further stated:

“However, if the property could not be obtained for the prices above stated, and you should obtain offers for which the owners would sell, then I can decide whether I am willing to pay a bigger price or not, in which case I will give you special authority to obtain the option. ’ ’

Thereafter, the defendant went to New York City, but before leaving he directed Carlson to telegraph him the offer he might secure from the plaintiff; that pursuant to these directions Carlson, on June 26, 1924, sent through his office, a telegram to the defendant signed by the American Traders Corporation, as follows : /

“Western Union Telegram,

Chicago, June 26, 1924.

Charles J. Vopieka,

Biltmore Hotel,

New York, N. Y.

Carlson advises California people will return Chicago next week and are expected to accept Stop Bank here has been authorized by bank in Boston to sign up on price of thirty-five thousand dollars for corner Eleventh and Alley They have written and asked to be authorized to secure Chicago Title Trust Company guarantee policy Stop Brown people have united in agreement to sell at eighty thousand dollars. Appraisers have placed value on this property at ninety-one thousand five hundred fifty but they have compromised and willing to accept eighty thousand Carlson wants you to wire immediately whether you wish him to sign at this price as he fears if delayed until parties arrive from California price will be increased Stop Thatcher expect to receive answer of acceptance from party out of town tomorrow Chicago parties have agreed to sell American Traders Corp.” which message was answered by the defendant, in a telegram dated the next day, as follows:

“Delivery No. 6.

1924 June 27 AM 7 32

NYA205 24

BE New York NY 27

American Traders Corpn

812 Harris Trust Bldg., Chicago, Ills.

Tell Carlson to sign up for eighty thousand and also with bank for thirty-five thousand dollars so that the average price is acceptable.

VO Vopieka.”

It is contended by the defendant that the letters and telegrams admitted in evidence are insufficient to show that the defendant signed a writing such as is required by the statute of frauds, or that Carlson had been given, within the meaning of the statute, written authority to enter into a contract as agent of the defendant for the purchase of the land in question.

Section 2, chapter 59 of the Statute of Frauds, Ca-hill’s Illinois Eev. Stats. 1929, 2, is as follows:

“No action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments or any interest in or concerning them, for a longer term than one year, unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. in writing, signed by such party.”

The question necessarily follows, does the evidence of the plaintiffs comply with the statutes so as to make the telegram such a memorandum or note in writing as to authorize Carlson to enter into a contract upon terms authorized by the defendant1? It appears that authority was given to Carlson to execute a contract to purchase by the two telegrams which we have quoted in full. The message to the defendant in New York from the American Traders Corporation advises to the effect that certain parties would sell, and have invited an agreement to sell for $80,000, and that Carlson wishes to know whether or not the defendant wishes him to sign at that price. The reply to the American Traders Corporation to “Tell Carlson to sign up,” did not constitute written authority to Carlson to execute the contract, the subject of this controversy. Carlson was not authorized to agree to the terms that appear in the contract. This contract was offered in evidence by the plaintiffs, and upon objection of the defendant, was not admitted, which the plaintiffs insist is error. Therefore, it will be necessary to consider whether the contract was lawfully authorized in writing and properly executed by Carlson as agent upon written authority of the defendant.

This contract provides for the purchase of certain real estate from the plaintiffs for $80,000 subject to existing leases, all taxes and assessments levied after the year 1923; unpaid taxes, or special assessments for, improvements not completed, and for unpaid instalments which fall due after delivery of the deed; to party wall agreements of record, and to a first mortgage of $25,000 to be paid by the purchaser; premiums on insurance policies held by the mortgagee, and the contract and earnest money to be held by Carlson. The telegram only authorized Carlson to sign for the purchase of the property for $80,000. The conditions agreed to by Carlson were outside of the written message, which plaintiffs contend is sufficient written authority, and in order to determine whether or not there was authority to agree to the terms of the contract, we are limited to the record. We are unable to find from an examination of the evidence in the record any written authority empowering Carlson, the agent, to agree to the terms which appear in this contract, and such terms are clearly outside of Carlson’s written authority and as such are not binding on the defendant, and also are a violation of the statute of frauds.

The rule of law in this State is well settled by the Supreme Court in the following cases, that an agent can only sign a contract containing such terms as his principal authorized him to execute,.and such authority must be in writing signed by the principal in order to comply with the statute of frauds, and this rule applies to the instant case and is controlling. Georgacopulos v. Hruby, 316 Ill. 439; Peters v. Windmiller, 314 Ill. 496; Stein v. McKinney, 313 Ill. 84; Kohlbrecher v. Guettermann, 329 Ill. 246.

The court did not err in sustaining the objection of the defendant to the admissibility of the alleged contract signed by Carlson, as agent.

The contention of the plaintiffs is that the defendant ratified the acts of Carlson in a manner so as to satisfy the statute, to which contention the defendant replies that a ratification recognizes an original absence of authority, so that if the ratification is relied upon, the evidence to support the same under the statute of frauds would have to be of the same character and completeness as that required by the statute for the original authorization.

It appears that the defendant signed the letter dated May 29, 1925, addressed to and received by Martin J. O’Brien, comptroller of the City of Chicago, which was a proposal to sell various pieces of property to the City of Chicago for $393,000, and which included the real estate of the plaintiff. This letter does not refer to the contract in question, and this proposal of the defendant is to sell property to the City of Chicago. There can be no doubt that the ratification of Carlson’s act would have to be in writing. A case in point and which has been passed upon by our Supreme Court is Kelly v. Fischer, 263 Ill. 184. The court said: “The subsequent arrangement at the bank by which the terms of sale were fixed did not bind the defendant, because a verbal promise by him to carry out the contract made by an agent not duly authorized did not meet the requirements of the statute. (Kesner v. Miesch, 204 Ill. 320.) The payment of the $50, alone, was not sufficient part performance to take the case out of the statute. (Temple v. Johnson, 71 Ill. 13; Dicken v. McKinley, 163 id. 318; Koenig v. Dohm, 209 id. 468.) The defendant had a legal right, if he saw fit, to claim the benefit of the statute, and the fact that he did so does not constitute a fraud which would permit complainant to invoke the rule that the Statute of Frauds cannot be used to perpetrate a fraud. The moral wrong of refusing to be bound by a verbal agreement because it does not comply with the statute does not authorize the application of the doctrine of equitable estoppel. Koenig v. Dohm, supra.”

The letter of the defendant of May 29, 1925, above referred to, is not a ratification of Carlson’s, act in signing without authority the contract that is the subject of this lawsuit. It is self evident that an offer to sell property does not obligate the seller to perform until the offer is accepted. Assuming that the offer to sell the property owned by a third party was not accepted, surely by reason of that fact alone the person making the offer to sell would not be obliged to buy the property from the owner where no contract exists.

It is a matter of common knowledge that offers are frequently made when the proposed seller is not the owner of the goods and property at the time the offer to sell is made. In this case the defendant at the time was not the owner of the real estate when the offer was made to the City, and no doubt the defendant’s offer was made with the expectation that if accepted he would be able to perform. But how can it be said that the writing of the letter is a ratification of the unauthorized terms of a contract signed by Carlson?

Having reached the conclusion that Carlson was not authorized in writing to agree to terms as agent of the defendant, we are of the opinion that there is nothing in this letter that would ratify such terms.

The plaintiffs made offers of proof of certain facts which were not admitted in evidence. They contend that the trial court was in error. The defendant’s reply to this contention is that the offer did not amount to offers of proof, and that his objection both as to form and substance, was properly sustained.

We have examined the offers of proof for the purpose of considering them in connection with the evidence in regard to the authorization of Carlson to execute the contract, and to the ratification of his act, and do not find that any evidence bearing upon such questions was improperly excluded by the trial court.

For the reasons indicated in this opinion the judgment is affirmed.

Affirmed.

Wilson, P. J., and Friend, J., concur.


author: Mr. Presiding Justice Jett

text:
    H. R. Cox and A. B. Cox, Trading as Cox Jewelry Company, Appellees, v. Aetna Casualty and Surety Company of Hartford, Connecticut, Appellant.
    Gen. No. 8,129.

      Opinion filed October 13, 1930.
    Rehearing denied May 14, 1931.
    John E. Cassidy and Stafford, Schoede & Stafford, for appellant.
    Connelly, Weld, Walker & Searle and P. R. Ingelson, for appellees; Franklin P. Searle, of counsel.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

This is an appeal by the Aetna Casualty and Surety Company of Hartford, Connecticut, appellant, from a judgment in favor of H. R. Cox and A. B. Cox, co-partners, doing business under the firm name and style of Cox Jewelry Company, appellees, for the sum of $25,041.67.

This cause was in this court at a former term and is reported in 248 Ill. App. 209, where the material facts in the case are to be found.

The action is one in assumpsit, based upon a policy insuring appellees against loss by robbery, between the hours of 7 a. m. and 12 o’clock, midnight, the policy period extending from December 18, 1923, to December 18, 1924; the maximum liability of insurer, under the terms and provisions of the policy was $20,000. The alleged robbery is said to have occurred on December 21, 1923, between the hours of 11 p. m. and midnight, three days after the policy became effective.

The record discloses that when the case went to trial the pleadings consisted of appellees’ declaration of one count, averring performance by them of all the conditions and terms of the policy to be performed precedent to a recovery; an affidavit of claim; the general issue; an affidavit of merits and special pleas.

A number of reasons are assigned and argued for a reversal of the judgment. It is urged that the robbery was a frame-up and that the judgment should be reversed with a finding of fact; that the trial court should have directed a verdict because there was no proof tending to show a compliance with section D of the policy. This section provides that the insured shall give immediate notice of loss to the home office of the company in Hartford, Connecticut, to the general agent and manager who countersigned the policy, and also to the company’s local authorized agent. The proof shows that the insured gave notice to the local authorized agent but did not give notice to the home office or to the general agent who countersigned the policy.

The declaration does not aver a waiver. Appellant contends that it devolves upon appellees to prove a strict compliance with the terms and conditions of the policy; that the performance of the conditions is a material averment of the declaration, which the appellees must prove as a part of their case.

Appellees’ reply is, that inasmuch as the defense was not set up in the defendant’s affidavit of merits, appellees are not required to prove a performance of those conditions ;• that appellant’s failure to specify this defense in its affidavit of merits, has entirely eliminated this issue, as one of the issues to be tried in the-case.

This question necessarily involves the construction of section 55 of the Practice Act, Cahill’s St. ch. 110, If 55. In this district, however, the rule has long since been determined.

In Reddig v. Looney, 208 Ill. App. 413, after referring to a number of authorities, relative to the question of practice, under said section of the Practice . Act, at pages 419 and 420, the court, speaking through the late Justice Dibell, said, “The rule above stated will not result in trying cases on issues formed by an affidavit of claim and an affidavit of merits. Though actions at law in the circuit court are to be tried upon the pleadings, yet under this statute the parties are limited also by their affidavit. Plaintiff can prove and recover only what is stated in his affidavit of claim, but he cannot prove and recover even that, unless he has an appropriate declaration on that cause of action. Defendant can only prove such defense as is stated in his affidavit of merits, but he cannot prove that, or have a verdict upon that, unless he has a pleading appropriate to that defense. The proof and the verdict must be under proper pleadings, but no proof can be admitted or availed of under the pleadings unless it is supported by a proper affidavit. ’ ’

In Manufacturers State Bank of East Moline v. American Surety Co. of New York, 230 Ill. App. 474, in discussing the question of practice under section 55 of the Practice Act, at page 482, we said, “Now that we have seen that the amendment of 1907 did not change the practice as it existed prior to that time, except to require the defendant to specifically set forth the defense he intended to rely upon, we must inquire what was the practice prior to 1907, with respect to the duty of a plaintiff to prove the material averments in his declaration. At the time, when an affidavit of defense needed only to state that the defendant had a meritorious defense to the whole, or some specific portion of plaintiff’s demand, the plaintiff was compelled to prove the material averments of his decláration. If his affidavit was so restricted that he could not make proof sufficient to support his declaration, he would fail in his suit. It was always necessary for him to prove his essential averments. There is nothing in section 55, as amended, which relieves him of that duty.”

In McPherson v. Board of Education, 235 Ill. App. 426, at page 429 we said, “It is a well known rule of pleading that where the general issue is filed together with special pleas, the special pleas cannot be utilized as a waiver of some of the allegations of the declaration, even though the averments of the special pleas are inconsistent with the denial under the general issue. Under the general issue, every material allegation of the declaration must be proved as alleged, and if they are not proved, the party bringing the suit has not made out a cause of action. Farnan v. Childs, 66 Ill. 544; Priest v. Dodsworth, 235 Ill. 613; Barker v. Barth, 88 Ill. App. 23; Miller v. Stanley, 186 Ill. App. 340; Bradley v. Illinois Automobile Ins. Exchange, 227 Ill. App. 572. This was the rule prior to the passage of section 55, of the Practice Act (Cahill’s Ill. St. ch. 110, If 55), and it continued to be the rule after the passage of that statute, except in so far as it was changed by the statute. When appellee filed his declaration, accompanied by an affidavit stating the nature of his claim and the amount due, as provided in section 55 of the Practice Act, if appellant had filed no pleas and no affidavit of defense, appellee would have been entitled to judgment against appellant as in a case of default. But when the appellant filed the general issue and a special plea, accompanied by an affidavit, stating the nature of his defense, a different rule was set in operation as far as appellee was concerned. Appellee was no longer entitled to judgment as in case of default, but it thereupon became his duty to prove every material allegation of his declaration, and if he failed to do so, he was not entitled to a judgment. This court so held in the recent case of Manufacturers State Bank of East Moline v. American Surety Co. of New York, 230 Ill. App. 474.”

According to the contention of appellees, a case would be tried in a cause in which an affidavit of claim had been filed by the plaintiff, and an affidavit of merits by the defendant, upon the issues made by the affidavits instead of by the pleadings.

We are of the opinion that the trial court erred in its ruling in holding that it was not incumbent, by reason of the state of the record, upon appellees, to prove the material allegations of the declaration in which a compliance with the provisions of the policy was averred. Moreover, it appears to us that the court should have allowed appellant to amend its affidavit of merits so as to require appellees to prove compliance with section D, or a waiver of such requirements.

The policy declared upon provides that there should be no liability unless books and accounts were kept by the assured, and the loss could be accurately determined therefrom by the company. It was charged in the declaration that books and accounts were kept up to and prior to the date of the robbery, by means of which said loss could be accurately determined by the appellant. In our former opinion we held that insurance companies have the right to require the one it insures to keep books and accounts, correctly detailing purchases, and showing sales, ready to be produced in the event of a loss. It is contended by appellant that appellees did not comply with the last above-mentioned provision of its policy in making their proof, and that incompetent testimony was admitted on the part of appellees when they were endeavoring to make their proof to comply with the terms of the policy.

Referring to the proof of loss, the witness Herbst was asked whether it was an accurate determination of the loss. He was allowed to testify, over the objection of the appellant, that he made it up from books and records of the Cox Jewelry Company, and that it was such an accurate determination. The witness was then allowed to testify, in response to a question put to him, that the books and records of the Jewelry Company were kept and maintained in the usual and customary way in which retail merchants, including jewelers, kept their accounts. The witness then referred in detail to the various books of appellees and testified that ordinarily retail jewelers maintained their accounts in the same manner. Evidently Herbst was put on the stand as an expert witness in the line of business about which he was interrogated. The record discloses that he admitted on cross-examination that preceding his examination of the Cox Jewelry store records, in December, 1923, he had never before gone over or examined a set of books of a jewelry store.

In this connection the witness Riek was examined; she was asked, “With your knowledge of the percentage of profit, and with the inventory that was taken in June, 1923, the invoices and with the record of the daily sales, including the notes, I will ask you, Mrs. Riek, whether by taking the inventory immediately after the robbery, you could have determined the amount of loss by that robbery?” Over objection of the appellant she'answered that she could. On cross-examination she testified that she had not seen the books of appellees for two or three months preceding the date of the loss, and she said “Respecting what the books show, my testimony is based entirely upon what Mr. Cox told me.”

We have read the testimony of H. E. Cox as to what books the Jewelry Company maintained. We are of the opinion that error was committed in the admission of testimony offered by appellees in an endeavor to prove the provisions of the policy, and the averments of the declaration that books and accounts were kept up to and prior to the date of the robbery, by means of which the said loss could be accurately determined by the appellant.

An important matter was presented by reason of the conduct of the juror Elmer Hallgren. The juror violated the instructions of the court. He went to the home of one Mabel Searight on two successive nights, when he was acting as a juror, and after the statements had been made by the respective counsel to the jury. Mabel Searight was the former wife of James Burns, the “Santa Claus” person appellant insists confederated with appellees in the alleged robbery. When the juror was examined before the court, among other things he said, “I went back one evening. I do not recall whether it was the next night. On the first night there were others there besides myself, John Searight and his wife.” He testified with reference to what was said about the case as follows: “Upon leaving Mabel started the conversation about being called as a witness in the Cox case, and stated that if she had known this, she would not have been there, she would have left the State; she only wished she could have gone to Peoria.” Upon my leaving she said, “If I am called as a witness on this, it is going to cost the Insurance Company a whole lot more than it did the last time.” “I felt from what she said that she had been paid by the insurance company as a witness and she stated 6 that if she was called again it would cost them plenty.’ I probably spent an hour there that evening. The subject of the Cox case was brought up not long before I left; probably 15 or 20 minutes, Mabel brought it up. ’ ’ It was not shown that ithe appellant was prejudiced by reason of the visit of the juror to the former wife of James Burns, but under the circumstances we are of the opinion the conduct of the juror was highly improper, and from what the records disclose upon this phase of the case, the court erred in a new trial.

Appellant also insists that it was an error for the court to refuse the motion for a new trial on account of the conduct of H. R. Cox, one of the appellees, who was -instrumental in having an article published in the Moline Dispatch. It appears that the jury were excused on the afternoon of February 21, 1929, until the following Monday morning, on account of Friday, the 22nd, being Washington’s birthday and a holiday. On February 21, he wrote to the Moline Dispatch requesting that a certain communication be published, with assurance that if the newspaper did not wish to run it as a news item, he would pay for its publication. The publication refers to the witnesses of the appellant as safe blowers and crooks; that the evidence of the Insurance Company at the former trial was only given by the various witnesses in order to keep crooks out of jail and the penitentiary; that two former juries of unprejudiced men had vindicated appellees and established their honesty.

The paper in which the' publication appeared, according to the editor thereof, had a circulation in Moline, Rock Island and other towns and cities in the county, in the neighborhood of ten thousand. The editor, upon receiving the statement from Cox, on February 21, published only the substance thereof. On the morning of February 22, Cox went to the editor and insisted that the article be published in full, and accordingly on the 22nd, it was published in full.

It is true affidavits were filed to show that the publication of February 22nd was not read by the jury, but we fail to find anything in the record to disclose that the publication of February 21st was not read by them.

It appears from affidavits filed in support of the motion for a new trial, the jurors indicated at the time the verdict was returned that they had read the publication in question. If they had, the duty of the court was plain. Cox evidently accomplished his purpose in prejudicing the jury.

There are other reasons assigned and argued but owing to the conclusion we have reached, we do not deem it necessary to discuss them.

We conclude that the judgment of the circuit court of Bock Island county should be reversed and the cause remanded, which is accordingly done.

Reversed and remanded.