author: Mr. Justice Kerher Scanlan, P. J.,

text:
    Morrison H. Castle, Appellant, v. Lester H. Powell and Luella M. Powell, Appellees.
    Gen. No. 34,366.

      Gridley, J., dissenting.
    Opinion filed March 24, 1931.
    Rehearing denied April 6, 1931.
    Stedmah, Kesler, Lewis & Feinstein, for appellant.
    West & Eckhart, for appellees.
   Mr. Justice Kerher

delivered the opinion of the court.

In an action in assumpsit, commenced by the City State Bank of Chicago based upon a written agreement of guaranty signed by-defendants, there was a trial without a jury on a stipulation of facts resulting in a finding and judgment against defendants for $1,697.30. Morrison H. Castle became the assignee of the bank’s claim and was substituted as plaintiff. He prosecutes this appeal and claims that the judgment should have been for $30,000. Under the pleadings and the stipulated facts the question whether he is entitled to a judgment for the larger sum is wholly one of law.

The agreement of guaranty (bearing the signatures and seals of the parties and signed by the bank by its vice president, Guy L. Bush) states that it is made on September 25, 1926 (amended on December 18, 1926, and again on April 18, 1927); that it is “between the City State Bank of Chicago, a corporation, Frederick B. Warner and Lester II. Powell and Luella M. Powell, -his wife”;'that “whereas” Warner, doing business as Fred Warner Agency of Insurance, “is desirous of a line of credit” in the bank, the same “to be guaranteed” by the two Powells .personally, and by certain shares of the common stock of the Wells Brothers Construction Company; and that; therefore, in consideration of one dollar ($1) and other good and valuable considerations and this agreement it is agreed:

1. The Bank “shall extend a line of credit” to Warner, not to exceed $30,000, “upon notes given for insurance premiums.”

2. The Bank “shall discount the said insurance premium notes at 5 per cent of the full face amount of said notes.”

3. The Bank “shall deduct 5 per cent of the full face amount of said notes and hold same to the credit of said Lester H. Powell, provided, however, that it reserves the right to apply any part or portion of said sum so set aside for said Powell upon the payment of any past due notes, which may be discounted under the terms of this agreement for said Frederick R. Warner.”

4. The two Powells “hereby agree, and simultaneously with this agreement deposit 1211% shares of the common stock of the Wells Brothers Construction Company ... as collateral, to guarantee the payment of said loans made by and credit herein provided to be made to or extended to said Frederick R. Warner,” and that, upon the “refusal or failure of said Fredérick R. Warner” to pay to said Bank “the said notes so discounted, credit extended or loams made by him upon maturity thereof,” the Bank is authorized, upon giving 15 days’ notice by registered letter addressed to the two Powells, to sell part or all of said stock and “to apply the proceeds thereof to the payment of any debts or indebtedness, including costs and charges due the City State Bank from the said Frederick R. Warner.”

5. The two Powells “hereby bind themselves jointly and severally to pay to the City State Bank the entire amount or any residue thereof which may from time to time become due and payable by said Frederick E. Warner to said City State Bank, including court costs and attorneys’ fees, and all other charges incurred for the enforcement of this agreement.”

The declaration consists of three counts, in each of which the agreement of guaranty is set out in full. In the first count it is alleged in substance that in September, 1926, Frederick E. Warner, doing business as the “Fred Warner Agency of Insurance,” applied to the bank “for certain loans, credits, discounts and accommodations”; that thereafter the agreement of guaranty was executed; that the bank, confiding in and expressly relying upon the promises of the two Powells as set forth in the agreement, “afterwards on September 25,1926, and on divers other days thereafter to and including October 22, 1927, loaned and advanced to said Frederick E. Warner, doing business, etc., the sum of $30,000, — all of said loans and advances being made to him upon insurance premium notes, payable to the Fred Warner Agency of Insurance and by him, so doing business, etc., duly endorsed and delivered to the bank”; that he has failed and refused to repay said loans and advances and that there is now due from him to the bank the sum of $30,000, together with interest charges, costs and attorneys’ fees; and that by reason of his failure and refusal to pay to the bank said sum the two Powells are liable therefor.

In the second count the allegations are substantially the same, and there are additional allegations that on September 26,1927, the bank had advanced and loaned to Warner upon insurance premium notes presented by him a sum in excess of $30,000, to wit, $40,000; and that on that day Lester H. Powell signed and delivered to the bank a letter or instrument in writing, addressed to its vice president, Bush, and dated September 26, 1927, as follows:

“I owe you an apology for not having written sooner confirming our agreement in connection with the Fred Warner account but it had slipped my mind.

“It is agreeable to me that you extend the credit on the F.-Pb. Warner account, which account is covered by certain of my collateral in your possession, up to the amount of $40,000. In the event anything should occur to give you any misgivings as to the condition of the account, etc., I wish you would be kind enough to advise me promptly so that I may take whatever steps may be necessary to protect my interests in the matter. . . .”

In the third count the allegations are substantially the same as in the second count, except that it is alleged that the bank, confiding in and expressly relying upon the promises of the two Powells as set forth in said agreements, on September 25, 1926, and on divers other days thereafter to and including October 22, 1927, loaned and advanced to said Frederick B. Warner, doing business, etc., divers sums of money aggregating $40,000, “upon purported notes for insurance premiums,” presented by Warner and duly endorsed by him, — “some of which notes . . . being forgeries, and some being fictitious notes, the same bearing the purported signatures of persons who did not exist, said signatures of the alleged makers being affixed to said notes by said Warner, or by other persons unknown to the bank”; that Warner, intending to defraud the bank, and without its knowledge that said notes were not genuine and valid, 1 ‘ endorsed and delivered the same to the bank”; that, by reason of such endorsement and delivery, Warner “vouched and warranted to the bank that said notes were genuine”; that the bank, relying upon Warner’s endorsements upon such forged and fictitious notes and believing that they were genuine notes, “advanced and loaned to said Warner the sum of $40,000 upon said notes, so presented by him,” and that immediately upon the discovery by it (the bank) that some of said notes so presented were forgeries and fictitious notes, it (the bank) “notified defendants and demanded of them that they make good their guaranty and repay to it the amount of said advances and loans made by it to said Warner.”

To the declaration defendants filed a plea of the general issue. In the affidavit of defense, made by Lester H. Powell and accompanying the plea, he states that “by said declaration it appears that the liability of defendants, if any, is limited to the notes of said Warner, secured by notes given for insurance premiums., and that various of said notes, deposited as collateral security to the obligations of said Warner, were not for insurance premiums, but were forgeries and purported notes deposited by said Warner, for which said defendants are not liable; that from the declaration it is not possible to determine whether or not any of said notes were in fact given for insurance premiums; and that, therefore, affiant says that said defendants have a good defense to the whole of plaintiff’s demand.”

The stipulation of facts, on which the case was submitted to the court, is in substance as follows:

1. That said City State Bank was and is an Illinois corporation and authorized to do a general banking business.

2. That on or .about September 25, 1926, Warner, doing business as the Fred Warner Agency of Insurance, applied to the bank “for certain loans, credit, discounts and accommodation”; that then and from time to time thereafter he presented to the bank what were termed “insurance premium notes of the Fred Warner Agency of Insurance,” and which varied in amount, date and name. (A copy of the form of a judgment note, payable to said Agency, is here set out, headed “Insurance Premium Note op Fred Warner Agency op Insurance.”) That each of such notes so presented was signed, apparently, by one of Warner’s customers and was endorsed in Warner’s genuine handwriting by the name of said agency and also by “Fred Warner.” (A long list of such notes is here set forth, giving the name and address of each purported maker, the face amount of each note, what had been paid thereon and the balance due. The aggregate of the sums apparently due is $38,452.22.)

3. That on September 25, 1926, the bank, Warner and the two Powells signed and delivered said agreement of guaranty. (The agreement, as above set forth in the declaration, is here set forth in full.)

4. That the two Powells “did conform to that portion of the agreement of guaranty and did deposit 1211% shares of the common stock of the Wells Brothers Construction Co., a corporation, said stock being represented by certificates Nos. 87 and 88, as collateral to said guaranty

5. That thereafter, on March 7, 1927, Warner applied to the bank for an “additional line of credit increasing the same to $40,000, “which was refused by said bank up to the time said Lester H. Powell, on March, 1927, directed said bank, by telegram (and later by oral agreement), to extend an additional temporary credit of $1,500 to said Warner, and that he (Powell) would arrive on March 15th, and take the matter up with said bank.”

6. That thereafter Warner asked for an additional line of credit to the amount of $40,000, and “Lester H. Powell did at said time agree to guarantee, and did then guarantee, an additional line of credit to the amount of $40,000 to said Warner; and that said oral agreement was confirmed by a communication under date of September 26, 1927, as follows:” (Said letter of Lester H. Powell, as above set forth in the second and third counts of the declaration, is here set forth in full.)

7. That subsequent to the execution of said original agreement of guaranty, and relying upon it, the bank “advanced to and paid over to said Warner $30,000, in excess of any sum received by it in installments paid upon said notes or from moneys received from said Warner or from any other parties in payment upon the account of said Fred Warner Agency of Insurance.” . . .

9. That said Warner, doing business as the Fred Warner Agency of Insurance, was a general insurance agent for the Reliance Life Insurance Co. of Pittsburgh, Pa., represented no other insurance company, and wrote no policies of life insurance except those issued by said Reliance Co.; that no applications for life insurance were received by said Reliance Co. from the persons “whose names are appended to the notes hereinbefore listed, and no policies of insurance were issued to said persons, except as hereinafter stated”; that the foregoing facts were unknown to the bank, or the present plaintiff, “until subsequent to the discount by the bank of said notes hereinbefore listed”; and that said notes, “for which applications for life insurance were made and for which life insurance policies were issued,” are as follows: (Here is set forth a list of twenty-seven [27] genuine premium notes, giving the name and address of each maker, the face amount of each note, what has been paid thereon and the balance due. The aggregate of the sums due is $1,697.30.)

“If the court finds that defendants are only liable for the notes admitted by Paragraph 9 hereof to be insurance premium notes, then judgment for $1,697.30, the amount due on said notes, shall be entered herein against defendants. Upon the payment of any judgment entered herein, the certificates of stock ... for 1211% shares of Wells Brothers Construction Co. shall be surrendered to defendants, otherwise said stock shall be disposed of by plaintiff as by law required. ’ ’

10. “That'for the purpose of this action the truth of the facts contained in this stipulation is admitted by all of the parties hereto; that the facts herein contained shall be considered in evidence so far as they are material, but none of the parties admit the materiality, relevancy or competency thereof; that all material, competent and relevant facts herein shall be of the same force and effect and as binding upon the parties hereto as if said facts were duly proven by competent evidence in the regular manner at the trial of this cause before the court.”

We agree with plaintiff that the determination of this case depends upon the construction to be given the contract of guaranty. It is his contention that the defendants guaranteed to pay the residue of the account of Frederick B. Warner. The defendants contend that the notes were not insurance premium notes except in the sum of $1,697.30 and that they are not liable under the terms of the contract of guaranty beyond that amount. The contract of guaranty must be considered and interpreted as a whole and from it, as a whole, must be gathered the intention of the parties. It must be construed by and from its own terms and provisions, as far as they furnish a guide; the contract should be construed so as to make it effective and enforceable where it can be done without violence to the intent of the parties to be gathered within the language of the four corners of the writing. (Mamerow v. National Lead Co., 206 Ill. 626; Corn Exchange Nat. Bank of Chicago v. Curtiss, 146 Ill. App. 489.) Courts will seek to discover and give effect to the intention of the parties, and contracts of guaranty will be construed in the same way as other contracts (Whalen v. Stephens, 193 Ill. 121), and as favorably to the creditor as any other written contract. (Swisher v. Deering, 204 Ill. 203; Taussig v. Reid, 145 Ill. 488.) But it is not the province of courts to interpolate new terms into contracts against the evident intentions of the parties. (Robinson v. Stow, 39 Ill. 568, 572.) The contentions of the parties to the contract are not the criterion which should guide the court in determining whether the written contract is a full expression of the agreement of the parties. The court must determine this from the writing itself. (Armstrong Paint & Varnish Works v. Continental Can Co., 301 Ill. 102, 106; Peoria Savings, Loan & Trust Co. v. Elder, 165 Ill. 55.)

It is contended by the plaintiff that Holm v.-Jamie-son, 173 Ill. 295, is decisive of the instant case. We have examined that case and cannot agree with his contention. In the Holm case, supra, the guaranty was indorsed upon the note in the suit. It was a guaranty of that specific note and, therefore, a promise to pay it at all events. Such are not the facts in this case. In the instant case the contract of guaranty was not indorsed upon the notes listed in the stipulation, but was separate and distinct therefrom. The court in the Holm case, supra, page 300, said:

“By a guaranty of this character the guarantor undertakes to every subsequent holder that the names of the maker and previous endorsers are really in the handwriting of those to whom they respectively purport to belong; and this is carried to the extent that where a promise has been written upon the note itself, a person guaranteeing the payment of that note is bound, even though the names of the prior parties, or some of them, were in fact forged, ... the guaranty was, in effect, the representation that the instrument or claim was perfectly valid, as well as a promise to pay it.” Had the defendants guaranteed the notes listed in the stipulation the Holm, case would apply, but they did not. They never represented at any time that the notes listed in the stipulation were valid notes given for insurance premiums. The City State Bank was not induced to accept the notes in question because of defendants’ guaranty and it is not claimed that the defendants misled the bank.

Plaintiff also relies upon the case of Pennsylvania Trust Co. v. McElroy, 112 Fed. 509, which was a claim upon Henry Butterfield’s guaranty of a judgment note for $75,000 of Lyons, Butterfield & Company, a limited partnership, given by the partnership to the bank. The judgment note was given and accepted as collateral security for a line of commercial paper which the partnership might receive from its customers for merchandise sold and delivered, and which the bank might purchase from the partnership as indorser. The bank did purchase from the partnership, as indorser, commercial paper. It was discovered that this paper was nearly all worthless, because the apparent makérs were fictitious persons or their names were forged. The defense was that "the guaranty covered only notes that the partnership received from its customers for merchandise sold and delivered, and did not cover the forged and fictitious notes. The court said, page 511:

“The limited partnership, by its indorsement having avouched that these notes were genuine business paper, and thus induced the bank to purchase them, certainly could not successfully set up as against its liability upon the collateral judgment note that the notes here in question were not received from customers for merchandise sold and delivered, but were fictitious or forged. As then the limited partnership could not make such defense, neither under the peculiar circumstances of the case is it available to the guarantor Henry Butterfield. He was a member of the limited partnership, and its secretary and treasurer. Although not individually liable for its debts, he was personally interested in its financial success. Undoubtedly the purpose of his guaranty was that the limited partnership might realize upon and receive the proceeds of commercial paper indorsed by the limited partnership and purchased from it by the bank. Now, the limited partnership did receive from the bank the proceeds from the purchase of these notes. To hold the guarantor then liable therefor violates no express provision of the judgment note or the indorsed guaranty, and does not go beyond the substantial purpose and true intent of the guaranty.” (Italics ours.)

It will be noted that the court in this case justified its ruling, because of the “peculiar circumstances of the case.” Henry Butterfield was a member of the partnership and he was interested in its financial success and its secretary and treasurer. While the guaranty was indorsed only on the collateral note, nevertheless the partnership by its indorsement on the customers’ notes vouched that they were genuine and thus induced the bank to buy.

As we read the contract in the instant case, it is entirely clear and does not leave room for any doubt as to the meaning and intentions of the parties. It is unambiguous in its terms and must, therefore, be interpreted and construed according to the language used, and the parties must be presumed to have meant that which their language clearly imports. (Peoria Savings, etc. Co. v. Elder, supra.) A guarantor may impose any terms or conditions in his guaranty which he may choose and will only be liable to the holder according to the terms of the agreement. (Ryan v. Trustees of Town of Shawneetown, 14 Ill. 20, 24; Finney v. Condon, 86 Ill. 78, 81; Illinois Surety Co. v. Munro, 289 Ill. 570, 574.) The nature and extent of the liability of a guarantor depends upon the terms of his contract, and he will be held liable for all that is done by his principal that was contemplated by his-contract, but he will not be held liable beyond the strict terms of his contract. Brandt in his work on Suretyship and Guaranty (3d. Ed.) Vol. 1, sec. 106, said:

“A rule never to be lost sight of in determining the liability of a surety or guarantor is, that he . . . has a right to stand upon the strict terms of his obligation, when such terms are ascertained. . . . It will not be implied that the surety has undertaken to do more or other than that which is expressed in such obligation. . . . Nothing can be clearer, both upon principle and authority, than the doctrine that the liability of a surety is not to be extended by implication beyond the terms of his contract. To the extent and in the manner and under the circumstances pointed out in his obligation, he is bound and no further. ’ ’

The measure of the liability of a guarantor is fixed by his contract and his undertaking cannot be enlarged or varied by judicial construction. (Mix v. Singleton, 86 Ill. 194.) His undertaking is to be strictly construed, and his liability will not be extended beyond the precise words of his agreement, either by implication or by construction; to do so would be to enlarge his undertaking. (Burlington Ins. Co. v. Johnson, 120 Ill. 622; People v. Toomey, 122 Ill. 308; Abbott v. Brown, 131 Ill. 108; Bullen v. Dawson, 139 Ill. 633; Tolman Co. v. Rice, 164 Ill. 255; Scovill Mfg. Co. v. Cassidy, 275 Ill. 462; Phoenix Mfg. Co. v. Bogardus, 231 Ill. 528; Schiff v. Continental Nat. Bank & Trust Co., 255 Ill. App. 333, and Michaelson v. Doonan, 259 Ill. App. 337.)

In the case of Lininger & Metcalf Co. v. Webb, 51 Neb. 10, the plaintiff sued to recover money alleged to be due by virtue of a written contract between plaintiff and one Webb whereby Webb became the agent of plaintiff and as such agent he received certain merchandise, which he was to sell and receive either cash or notes of the purchasers, which would be delivered to plaintiff. Cowden guaranteed the faithful performance of the contract. Webb delivered certain notes to plaintiff which were not paid by the makers, and plaintiff sued Cowden for the amount of these notes. The court said:

‘ ‘ Some of the notes for the payment of which it was sought to charge the defendants . . . were not taken on sales made by the agent for plaintiff, but were notes which he had received in other business transactions. . . . With their payment the surety or guarantor could not be charged. His obligation could not be extended beyond the terms of the agreement by which it was created, and this did not include notes taken in the course of defendant’s business as agent other than in sales made for the plaintiff company, and which might for any purpose have been transferred to it by the defendant principal in the contract in suit.”

In the case of Locke v. McVean, 33 Mich. 474, the plaintiff entered into a written contract to sell to David McVean sewing machines for which David McVean was to pay by the execution of notes, said notes to be on four months’ time. David McVean gave notes payable six months after date. The court said:

“I discover no ambiguity and find nothing uncertain. . . . For every machine David was to give at the time of purchase his note on four months’ time without interest, and in case he desired was to have an extension for sixty days, but for the time of the extension there was to be interest at the rate of eight per cent; ... No other or different notes were provided to be given by David to the plaintiff, and under the contract the plaintiff could not require any other.

“. . . the guarantors only undertook for paper of a specific description, . . . and the plaintiff and David had no power to extend the obligation to other securities. ’ ’

In Byrne v. Aetna Insurance Co., 56 Ill. 321, the court said: “The liability of the surety ought not to be enlarged on account of the laches of the agent.” (p. 326.) In the instant case plaintiff is endeavoring to hold defendants for the dishonesty of Warner. If a guarantor cannot be held for laches, he certainly ought not to be for his dishonesty unless he so agrees. We think it clear the purpose of the defendants was to enable Warner to obtain a line of credit not to exceed $30,000 upon notes given for insurance premiums, and to confine their obligations to the City State Bank of Chicago, to money that was loaned upon notes given for insurance premiums. This undertaking of the defendants speaks for itself. They cannot be required to assume more than they promised. To hold the defendants liable under the facts in this case would violate the express provisions of the guaranty and would go beyond the purpose and the true intent of the guaranty.

The judgment of the circuit court is affirmed.

Affirmed.

Scanlan, P. J.,

concurs.

G-ridley, J., dissenting: I am of the opinion, under the pleadings, the agreement of guaranty and the stipulated facts, that defendants should be held liable to plaintiff in the sum of $30,000, instead of only $1,697.30.


source: Caselaw Access Project

author: Mr. Justice Keeker

license: Public Domain

text:
    James J. Brown Plastering Company, Defendant in Error, v. Gustav H. Gottschalk, Plaintiff in Error.
    Gen. No. 34,516.
    Opinion filed March 24, 1931.
    Jacobses, Merrick, Nieemak & Silbert, for plaintiff in error.
    A. S. and E. W. Froehlich, for defendant in error.
   Mr. Justice Keeker

delivered the opinion of the court.

This was an action in assumpsit brought by plaintiff, James J. Brown Plastering Company, against the defendant Gustav H. Gottschalk, upon a written guaranty of the defendant. Plaintiff obtained judgment for $18,300, which the defendant seeks to have reversed.

Plaintiff filed the common counts and a special count in which it is alleged that on August 26, 1926, Shore-land Hotel Company was a corporation of Illinois, having outstanding as a part of its capital certain preferred stock, and that plaintiff received from Shoreland Hotel Company upon the settlement and adjustment of a certain claim then and there held and owned by plaintiff against the Shoreland Hotel Company, a certain certificate for 150 shares of the preferred stock of the Shoreland Hotel Company and that the plaintiff entered into a contract with the Shoreland Hotel Company as follows:

“This Memorandum of Agreement made and entered into this 26th day of August, A. D. 1926, by and between Shoreland Hotel Company, a corporation, hereinafter called the ‘Corporation’ and James J. Brown Plastering Co., a corporation, hereinafter called the ‘Stockholder’ Witnesseth:

“That for and in consideration of the sum of One Dollar ($1.00) to it this day in hand paid, and other valuable consideration, the receipt whereof is hereby confessed, and as a part and portion of the transaction whereby said Stockholder did this day receive and pay for one hundred and fifty (150) shares of the Preferred Stock of said Corporation, being evidenced by certificate No. P-27, the Corporation does hereby contract, covenant, undertake and agree to repurchase of and from said Stockholder on or before August 26, 1929 said one hundred and fifty (150) shares of Preferred Stock above referred to at the price of One Hundred Dollars ($100.00) per share plus all accrued, accumulated and unpaid dividends thereon from the date hereof to and including the date of said repurchase.”

And the plaintiff further averred that on the same day and as a part of the transaction evidenced by the issuance of said stock and the making of said contract the defendant entered into a contract in writing with the plaintiff, as follows:

“Chicago, Ill. August 26, 1926.

“James J. Brown Plastering Co.,

53 W. Jackson Boul.

Chicago, Illinois.

‘ ‘ Gentlemen:

“As a part of the transaction this day consummated between yourself and Shoreland Hotel Company, whereby you received in part payment for work done and labor and material furnished for the construction of said hotel one hundred and fifty (150) shares of the Preferred Stock of said Company, which stock said company did this day, as a part of the same transaction undertake and agree to repurchase of you on or before August 26, 1929, at the price of One hundred dollars ($100.00) per share, plus all accrued, accumulated and unpaid dividends thereon, the undersigned Gustave H. Gottschalk, being personally financially interested in said Shoreland Hotel Company, does hereby guarantee the performance by .said Shore-land Hotel Company of its said agreement of re-purchase of said stock.

“In the event of the neglect, failure or refusal on the part of said Shoreland Hotel Company to comply with its said contract, he, the undersigned, will, upon demand, at any time after August 26, 1929, purchase said shares of stock from you at said price of Fifteen thousand Dollars ($15,000.00) plus accrued, accumulated and unpaid dividends thereon.

“This guaranty shall be deemed an original undertaking and notice of default on the part of said Shore-land Hotel Company is hereby waived.

Tours very truly,

(Signed) Gustav H. Gottsehalk.”

And plaintiff further averred that no dividends have at any time been paid on said stock; that on August 26, 1929, it tendered to the Shoreland Hotel Company said certificate and demanded of the Shoreland Hotel Company the purchase price thereof in accordance with its said contract of purchase, and that the Shoreland Hotel Company failed, neglected and refused to purchase said stock or to pay to the plaintiff the purchase price or any part thereof; that plaintiff notified the defendant of said refusal of the Shoreland Hotel Company to comply with its contract and tendered to the defendant said certificate of stock and demanded of the defendant that he purchase said certificate of stock from the plaintiff in accordance with his said contract, which the defendánt refused to do. The plaintiff also filed an affidavit of claim. The defendant pleaded non assumpsit and two special pleas, which raised the defense that the defendant’s agreement was without consideration or that the consideration therefor has failed, for the reason that the plastering work done by plaintiff was defective; that plaintiff breached its plastering contract, and that the resulting damages to the Shoreland Hotel Company exceeded the amount of plaintiff’s claim; that the agreement of the Shore-land Hotel Company for the repurchase of the stock is illegal and void, and that the defendant’s contract is void for that reason. The trial court, on motion of the plaintiff, struck from the files for insufficiency the affidavit of merits, defaulted defendant for want of a sufficient affidavit tif merits and entered judgment against him on plaintiff’s affidavit of claim for $18,300. The trial court made no disposition of the pleas. Where an affidavit of merits is insufficient it is proper to strike it from the files, and the plaintiff is then entitled to judgment as in case of default. After an affidavit of merits has been stricken from the files it is not necessary to strike the pleas from the files, although such practice is not improper and is common. (Firestone Tire & Rubber Co. v. Ginsburg, 285 Ill. 132, 134.)

The question for decision is, Did the defendant’s second amended affidavit of merits state any legal defense to the action? The instant case is not upon the plastering contract between the plaintiff and the Shoreland Hotel Company, nor upon any note or other obligation evidencing any unpaid portion of the contract price. When the contract under which the plaintiff purchased the preferred stock of the hotel company was executed, the Shoreland Hotel Company ceased to be a debtor of the plaintiff, and before the pláintifFreceived from the Shoreland Hotel Company in settlement and adjustment of its claim against the Shoreland Hotel Company the 150- shares of the preferred capital stock of the Shoreland Hotel Company, it insisted that the Shoreland Hotel Company agree to repurchase the stock on or before August 26,1929, and that said contract of repurchase be guaranteed. The defendant being personally financially interested in the Shoreland Hotel Company, guaranteed the performance by the Shoreland Hotel Company of said contract of repurchase, and in his contract of guaranty the defendant stated:

“In the event of the neglect, failure or refusal on the part of said Shoreland Hotel Company to comply with its said contract, he, the undersigned, will, upon demand, at any time after August 26, 1929, purchase said shares of stock from you at said price of Fifteen thousand Dollars ($15,000.00) plus accrued, accumulated and unpaid dividends thereon.

“This guaranty shall be deemed an original undertaking. ...”

It is very evident to us that the contract of guaranty was executed by the defendant and given to the plaintiff to induce the plaintiff to purchase the stock, the defendant guaranteeing the performance by the Shore-land Hotel Company of its contract to repurchase the stock. The contract was an unconditional original undertaking in which the defendant guaranteed the purchase and the payment of the preferred stock. It has been repeatedly held that in a suit upon a guaranty the guarantor is estopped to deny the consideration of the guaranty or the validity of the original undertaking (Malleable Iron Range Co. v. Pusey, 244 Ill. 184; Automatic Electric Co. v. Campbell, 197 Ill. App. 591), and where the guaranty is founded upon a new and independent consideration, as in the instant case, the sufficiency of the consideration of the original debt cannot be inquired into, it forming no part of the consideration of the guaranty. (Automatic Electric Co. v. Campbell, supra.) A guarantor cannot plead illegality in the contract of a principal which he guarantees. (Holm v. Jamieson, 173 Ill. 295, 299, 301; Weger v. Robinson Nash Motor Co., 340 Ill. 81.) In the case of Bank of Plant City v. Canal-Commercial Trust & Savings Bank, 270 Fed. 477, at page 480, the court said:

“Moreover, the guarantor may be liable, despite the invalidity of the principal obligation, if the guaranty is a separate and independent transaction binding the guarantor independently of the original contract. ... In such a case the liability of the guarantor is not affected by the invalidity of the principal obligation.” 12 R. C. L. 1073.

The contention that the contract of the Shoreland Hotel Company to repurchase is invalid where the corporation is insolvent at the time of making the agreement is without merit. A corporation may purchase its own stock; it has the right to purchase its own stock for a legitimate purpose. (Chicago, Pekin & Southwestern R. Co. v. Marseilles, 84 Ill. 145; First Nat. Bank of Peoria v. Peoria Watch Co., 191 Ill. 128; Merchants Loan & Trust Co. v. Ummach, 228 Ill. App. 67.)

We are of the opinion that the court did not err in holding that the affidavit stated no defense to plaintiff’s claim.

The judgment is affirmed.

Affirmed.

Scahlah, P. J., and Gridley, J., concur.


author: Mr. Justice Keener

text:
    Scene-In-Action Corporation, Appellant, v. Knights of the Ku-Klux-Klan, Appellee.
    Gen. No. 34,628.

      Opinion filed March 24, 1931.
    Rehearing denied April 6, 1931.
    Albert Sabath, for appellant.
    Justus Chancellor and Justus Chancellor, Jr., for appellee.
   Mr. Justice Keener

delivered the opinion of the court.

The plaintiff, Scene-In-Action Corporation, sued the defendant, Knights of the Ku-Klux-Klan, a corporation, in assumpsit for $2,500 for goods sold and delivered. The summons, directed to the defendant was returned by the sheriff served as follows: “ . . .by delivering a copy thereof to Dr. , Hiram Westley Evans, Imperial Wizard of said corporation.” The defendant appeared specially and filed a verified plea, that before and at the time of the commencement of the cause of action, it was and is still residing and doing business in the State of Georgia, and not in the county of Cook and State of Illinois; that it was not found or served with process in the county of Cook; that it is a fraternal organization incorporated in the State of Georgia; that it never has been nor has it entered the State of Illinois for the purpose of transacting business, nor for any other purpose; that it has no agent, officers or others representing it, and no one in Illinois is authorized by it to accept service or upon whom service of summons can be made, and that Hiram W. Evans was not at the time summons was served upon him in any manner an agent, employee, officer or member of the Knights of the Ku-Klux-Klan, a corporation. There was a replication to this plea to the jurisdiction.

On the trial before the court without a jury the plaintiff introduced the original summons, together with the return of the sheriff, and the testimony of Emanuel Goldstrich, who testified that he accompanied the deputy sheriff to the Eighth Street Theatre where the Knights of the Ku-Klux-Klan were having a convention, and while the convention was in session there saw Dr. Evans, who was 'chairman of the meeting; that Evans .was served with the summons at the Stevens Hotel. The defendant introduced in evidence a certificate of incorporation from which it appears that the Knights of the Ku-Klux-Klan were duly incorporated under the laws of the State of Georgia, its object being purely benevolent and eleemosynary, the principal office being in Fulton County, Georgia; the corporation having power to issue decrees, edicts and certificates of organization to separate branches of the corporation in Georgia and other States of the United States; that there shall be a supreme legislative body in which shall be vested the power to amend and adopt constitutions and by-laws; that the business of the society shall be under the control of the Imperial Wizard (president) who shall be amenable in his official administration to the supreme executive committee. The court found the issues for the defendant and that the service of summons was not sufficient to give the court jurisdiction of the defendant. From the entry of this order plaintiff appealed.

Paragraph 8, ch. 110, Cahill’s Ill. Revised Stats., provides: “An incorporated company may be served with process by leaving a copy thereof with its president, if he can be found in the county in which the suit is brought. . . . ” The summons was served by delivering a copy to the Imperial Wizard of the defendant corporation, which office corresponds to the office of president of the corporation. The method of service prescribed by the statute was accordingly followed. But this is not alone determinative of the question of jurisdiction. The service of process upon the president of a foreign corporation in order to confer jurisdiction must. constitute due process of law under the requirements of the fourteenth amendment to the Constitution of the United States. (Connecticut Mut. Life Ins. Co. v. Spratley, 172 U. S. 602; Armstrong Co. v. New York Cent. & H. R. R. Co., 129 Minn. 104, 151 N. W. 917, and cases cited.) To meet the requirements of due process of law in an action against a foreign corporation there must not only be service of process upon an officer or agent within the State, but the corporation must be doing business in the State. (Goldey v. Morning News, 156 U. S. 518.) It cannot be sued in personam, when it is not doing business in the State where the suit is brought. (Toledo Railways & Light Co. v. Hill, 244 U. S.49; Riverside & Dan River Cotton Mills v. Menefee, 237 U. S. 189; Pembleton v. Illinois Commercial Men’s Ass’n, 289 Ill. 99; Booz v. Texas & Pacific Ry. Co., 250 Ill. 376.) It must appear that the corporation was carrying on its business in the State where' the process was served on its agent and that the business was transacted by some agent or officer appointed by or representing the corporation in such State. (Pembleton v. Illinois Commercial Men’s Ass’n, supra; Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U. S. 516.) No general ruling has been formulated defining what transactions constitute doing business so as to render a corporation liable to service, but in general the business must be such in character and extent as to warrant the inference that the corporation has subjected itself to the jurisdiction and laws of the State, or, as often stated, the business must be such that the corporation is for the time being within the State in which it is sued. (People’s Tobacco Co. v. American Tobacco Co., 246 U. S. 79; Rosenberg Bros. & Co. v. Curtis Brown Co., supra; St. Louis S. W. Ry. Co. v. Alexander, 227 U. S 218; International Harvester Co. v. Kentucky, 234 U. S. 579.)

In the instant case the defendant, a foreign corporation organized under the laws of Georgia, was holding a general convention in Chicago, Cook county, Illinois. Dr. Hiram W. Evans was the Imperial Wizard of the defendant, which office corresponds to the office of a president of a corporation, and as such was presiding at the convention and conducting its business. It is contended .that these, facts do not constitute such transaction of business in the State that the defendant could be said to have ever been in the State. In the case of Booz v. Texas & Pacific Ry. Co., supra, the court said: “Doing business within this State means the transaction of the ordinary business in which the corporation is engaged, by the exercise of some of its charter powers. ’ ’ The officer must be there officially representing the corporation in its business. (Conley v. Mathieson Alkali Works, 190 U. S. 406.) The agent must be one actually appointed by the corporation and representing the corporation in some line of employment authorized by its charter. (Barnard v. Springfield & Northwestern Traction Co., 274 Ill. 148, 151.) The presence of a corporation within a State necessary to the service of process is shown when it appears that the corporation is there carrying on business in such sense as to manifest its presence within the State. The question whether the holding of a general convention by a foreign corporation constitutes “doing business,” within the meaning of the rule here under consideration, is one upon which we have been unable to find authority. The defendant offered no evidence, excepting its certificate of incorporation, to show that it was not doing business in this State, and there was no evidence to show that it did no other business in this State, and that it had not issued certificates of organization to a branch or branches in Illinois. The burden was on the defendant to support its plea. (1 Cyc. 134; Puterbaugh P. & P., 10th Ed., sec. 94.) Our opinion is that after defendant had sent its agent into the State of Illinois to hold a general convention, which is in the exercise of its charter powers, it is not in a position to say that it has never been in the State of Illinois, and we hold that the service made in this case gave the court jurisdiction over defendant.

For the reasons above indicated we think the court erred in dismissing the suit, and the order will be reversed and the cause remanded for a trial upon the merits.

Reversed and remanded.

Scanlan, P. J., and Gridley, J., concur.


author: Mr. Justice Shurtleee

text:
    Catherine Knox, Executrix of the Last Will and Testament of Isabelle Cooney, Deceased, Appellant, v. William Maher and Pleasant Plains State Bank, Appellees.

    Gen. No. 8,319.
    Opinion filed June 11, 1929.

      Barber & Barber, A. M. Fitzgerald and II. C. Moore, for appellant.
    O. B. Irwin and Doyle, Sampson &.Gifein, for appellees.

       This case which was formerly published as an abstract (254 Ill. App. 626) is now directed by the court to be published in full.

   Mr. Justice Shurtleee

delivered the opinion of the court.

This is an appeal by Catherine Knox, executrix of the estate of Isabelle Cooney, deceased, from the judgment of the circuit court of Sangamon county, directing the Pleasant Plains State Bank to deliver to appellee William Maher a certain promissory note held by said bank, but claimed by said executrix as assets of the estate of said deceased. The case was in the circuit court upon appeal from the probate court and by stipulation of the parties the cause was heard in the circuit court upon a transcript of evidence and proceedings had in the probate court. The leading and undisputed facts are substantially as follows:

Isabelle Cooney in her lifetime lived near the village of Pleasant Plains in Sangamon county, and William Maher, a much younger person, practically grew up in her home; in fact, he was commonly known in the neighborhood as “Billy Cooney.” Some years before her death Mrs. Cooney loaned $4,300 to a neighboring farmer, Frank Hergenrother. Upon a renewal of the-note and desiring, as it is admitted, to make a gift to William Maher, Mrs. Cooney, together with said Frank Hergenrother, went to the Pleasant Plains State Bank and by their direction a promissory note was prepared by George Purvines, the cashier of said bank, in words and figures as follows:

“$4300.00 Nov. 25th, 1922.

Pleasant Plains, Ill.

“Five years after date I promise to pay to the order of . . . Mrs. L. C. Cooney or Wm. Maher, in event of the death of Mrs. L. C. Cooney.

Forty-three Hundred................... no Dollars

The Pleasant Plains State Bank Pleasant Plains, Illinois.

“Value received with interest at the rate of 3 per cent from date until paid.

Frank Hergenrother. ’ ’

The note, after being executed, was left by direction of Mrs. Cooney with the bank for safe-keeping, but without any specific order as to the delivery thereof. Mr. Purvines put the note in an envelope, containing no other papers, and placed the same in a cabinet in said bank consisting of open boxes, lettered from A to Z, and in the particular box marked “C.” Mrs. Cooney had other papers in the bank, but the same were in no manner attached to said envelope. Purvines stated that he considered that the bank was holding the note for all the parties thereto as their interests might appear, which the court held, however, was incompetent.

Mrs. Cooney died testate on or about December 20, 1923, and her will was duly probated in the probate court of said Sangamon county. At various times after the making of said note she expressed her wish that the amount thereof should be paid to William Maher, of whom apparently she was always very fond.

On January 16, 1928, the executrix filed a petition in the probate court under section 81 of the Administration- Act, Cahill’s St. ch. 3, H 82, for a citation against said Pleasant Plains State Bank to show cause why said note should not be delivered up to said executrix as assets of said estate, and also prayed therein that said Frank Hergenrother and William Maher be notified, and such citation was duly issued and the parties .thereto served. In the petition it was expressly stated that said promissory note was intended as “an expression of a desire to make a gift to said William Maher,’-’ but it was alleged that “said gift was never effected by the delivery of the possession of said note to said William Maher.”

The hank answered said petition, admitted that it held the note and asked the direction of the court relative thereto. Frank Hergenrother did not answer. William Maher filed an intervening petition and answer setting up that both as a gift to him from Mrs. Cooney, and also by virtue of the contract between her and Frank Hergenrother, said note and the right to collect the same became his own exclusive property.

Upon the hearing in the probate court there was no dispute as to the facts which were as above set forth, and which were testified to by said George Purvines and Frank Hergenrother. There, as here, the sole question was as to the legal right under the facts which were undisputed.

The probate court on March 26, 1928, at the March term, 1928, thereof, entered an order denying the petition of said executrix, finding that the note in question was the property of William Maher and ordering said bank to deliver said note to said William Maher. Neither at the time of entering said judgment nor at any time thereafter did the petitioner pray any appeal in the probate court to the circuit court. But on April 12, 1928, that is to say, at a subsequent term of said probate court, and without any previous order therefor, the appellant herein presented to the judge of the probate court an appeal bond in the sum of $200 for an appeal to the circuit court, which bond was thereupon approved by the probate court and a transcript of record ordered.

Pursuant to that order the transcript of proceedings in said probate court was prepared and certified to the circuit court. And thereupon the said appellee William Maher, limiting his appearance to the special purpose involved, entered his motion in the circuit court to dismiss said attempted appeal from the probate court for the reasons: (a) that no motion or order for such appeal was ever made or entered at the term of said probate court wherein the judgment attempted to be appealed from was rendered; and, (b) that after the term at which said judgment was entered, and without an order entered during said judgment term, the probate court had no further jurisdiction to allow said appeal. Upon an entering of said motion to dismiss the appeal the circuit court denied the same, to which order the said appellee William Maher duly excepted and at the same term a bill of exceptions was duly allowed showing the action on said motion to dismiss.

Thereafter in the circuit court, as already indicated, it was stipulated that the cause might be heard upon the transcript of proceedings and evidence heard in the probate court, and such hearing was accordingly held. The circuit court entered a judgment substantially as was entered by the probate court, finding that said William Maher was the owner of and entitled to possession of the said note and ordering and directing that the Pleasant Plains State Bank deliver the same to said William Maher, and directing the dismissal of said petition. From that judgment the appellant prosecutes this appeal.

It is first contended by appellee upon cross error filed that the circuit court of Sangamon county erred in not dismissing appellant’s appeal to that court for the reason that no appeal was taken by appellant from the probate court within the term at which the judgment was rendered. Appellant attempted an appeal in the manner provided for taking appeals from justices of the peace. It is contended that it did not effect an appeal. No order was entered allowing an appeal, fixing the amount of the bond or taking an appeal during the term at which the final order was entered. Appellant contends that the appeal was taken under section 124 of the Administration Act, Cahill’s St. ch. 3, if 126, and should be perfected in the same manner as appeals are perfected from a judgment of a justice of the peace, citing: Mundy v. Mundy, 230 Ill. App. 266, 269.

There have been various interpretations of the statutes upon this subject by the different Appellate Courts, but no late case of the Supreme Court specifically discussing this question except Hall v. First Nat. Bank, 330 Ill. 234. Appellee contends and presents that under the Constitution of 1818, provision was made for the selection of justices of the peace to exercise such jurisdiction as the General Assembly might provide (secs. 1 and 8, article IV, Constitution 1818), and that pursuant thereto justices of the peace were provided for by a statute enacted in 1845 (ch. 59, stat. 1845), and by another statute enacted in the same year provision was made for a court of probate in each county to be presided over by a justice of the peace. That statute provided that appeals might be taken from the court of such probate justice in the same manner and with like effect as appeals from the judgments and decisions of other justices of the peace (stat. of 1845, pp. 426-429).

The Constitution of 1848 provided for the creation of the county court with jurisdiction in probate matters and to be presided over by a county judge (secs. 16 and 17, article V, Constitution 1848). Under that constitution and by an act passed in 1849 (Laws 1849, pp. 62-67) county courts were established. • By that act it was provided that the jurisdiction of the probate courts theretofore existing should be transferred to the county courts and that appeals from the judgments of such courts might be taken “in the manner prescribed by law,” and section 13 of that act provided that such appeals might be taken as in case of similar judgments rendered by the probate court. It is contended that by statute the appellate procedure of the newly created county courts in probate matters was expressly made to conform to the practice theretofore prevailing and existing in the probate courts, and such probate courts were essentially justice of the peace courts; they were not courts of record.

The Constitution of 1870 continued the county courts (sec. 1, article VI), vested them with probate jurisdiction (sec. 18, article VI) and provided that appeals might be allowed from their judgments, “as may be provided by law” (sec. 19, article VI), and also authorized the General Assembly to provide for the establishment of probate courts (sec. 20, article VT). Section 29 of article VI further provided:

“All laws relating to courts shall be general,'and of uniform operation; and the organization, jurisdiction, powers, proceedings and practice of all courts, of the same class or grade, so far as- regulated by law, and the force and effect of the process, judgments and decrees of such courts, severally, shall be uniform.” This provision of the Constitution and its relation to courts has been considered and applied in Kingsbury v. Sperry, 119 Ill. 279, 286; Dawson v. Eustice, 148 Ill. 346; People v. Hibernian Bank Ass’n, 245 Ill. 522, 524; Pence v. Pettett, 211 Ill. App. 588.

It was held in Dawson v. Eustice, supra, and Kings-bury v. Sperry, supra, that the probate court, when established, and the county courts in other counties, as respects all matters of probate and the application of guardians to sell or mortgage lands of minors, are of the same class or grade.

Under the Constitution of 1870, the Administration Act was passed in the year 1872, Cahill’s St. ch. 3, the provisions whereof throughout assume that the same would be executed by the county courts. That act contained two sections with regard to appeals. The first of said sections, being section 68 (Cahill’s St. ch. 3, IT 69), provided that:

“In all cases of the allowance or rejection of claims by the county court, as provided in this Act, either party may take an appeal from the decision rendered to the circuit court of the same county, in the same time and manner appeals are now taken from justices of the peace to the circuit courts, by appellant giving good and sufficient bond, with security, to be approved by the county judge; and such appeals shall be tried de novo in the circuit court.”

And section 124 of said Act, which is also a copy of section 138 of the Wills Act of 1845, provides as follows (Cahill’s St. ch. 3, ff 126):

“Appeals shall be allowed from all judgments, orders or decrees of the county court, in all matters arising under this Act, to the circuit court, in favor of any person who may consider himself aggrieved by any judgment, order or decree of such court, and from the circuit court "to the supreme court, as in other cases, and bonds with security to be fixéd by the county or circuit court, as the case may be.”

From the above it thus appears that up to the time of the adoption of the Administration Act in 1872, the appellate practice in probate matters was essentially the same as that prevailing in the courts of justices of the peace.

In the year 1874, however, our present county courts were reorganized by an Act approved March 26th of that year and entitled, “An Act to extend the jurisdiction of county courts and to provide for the practice thereof, to fix the time for holding the same, and to repeal an Act therein named.” By that statute the county courts as now existing were completely reorganized. After providing for the establishment and jurisdiction of said courts, including all matters of probate, section 122 of said Act contains the following with respect to appeals (Cahill’s St. ch. 37, if 321):

“Appeals may be taken from the final orders, judgments and decrees of the county courts to the circuit courts of their respective counties in all matters, except as provided in the following section, upon the appellant giving bond and security in such amount and upon such conditions as the court shall approve, except as otherwise provided by law. Upon such appeal the case shall be tried de novo.”

The probate courts were created by an act approved April 27, 1877, entitled “An Act to establish probate courts in all counties having a population of 70,000 or more, to define the jurisdiction thereof, and to regulate the practice therein, and to fix the time for holding the same.” (Cahill’s St. ch. 37, ff1f 331-354.)

After providing for the establishment of such courts, and fixing the jurisdiction thereof to include all probate matters concurrently with the county courts, said Act contains the following provisions in section 11 thereof with respect to appeals to the circuit court (Cahill’s St. ch. 37, If 341):

“Appeals may be taken from the final orders, judgments and decrees of the probate courts to the circuit courts of their respective counties in all matters except in proceedings on the application of executors, administrators, guardians and conservators for the sale of real estate, upon the appellant giving bond and security in such amount and upon such condition as the court shall approve, and upon such appeal the case shall be tried de novo.”

Under the reorganization of the county court in 1874 and the establishment of the probate court in 1877, each was made for the first time a court of record.

In Mundy v. Mundy, 230 Ill. App. 266, 269, cited by appellant, the court holds:

“In a case of this kind the right to appeal is governed by section 124 of the Administration Act (Cahill’s Ill. St. ch. 3, If 126.) Any person who may feel himself aggrieved by the judgment of the county court may appeal whether he is a party to the record or not. Collins v. Kinnare, 89 Ill. App. 236; Weer v. Gand, 88 Ill. 490. The appeal may be perfected in the same manner as appeals from justices of the peace. Beardsley v. Hill, 61 Ill. 354. It is not necessary that an appeal should be prayed in the county court or that the court should enter an order allowing the appeal. Fix v. Quinn, 75 Ill. 232; Haaren v. Miller, 139 Ill. App. 405. It necessarily follows that appellant had a right to appeal without the other respondents' signing the appeal bond.”

Mr. Justice Dibell, in the case of Pence v. Pettett, 211 Ill. App. 588, gave a great deal of consideration to ^ the construction of these various statutes for appeal, and on page 592 held: “If section 68 of the Administration Act (J. & A. if 117) applies to appeals from the allowance or rejection of claims by the Probate Court, then the bond given in this case was insufficient because not double the amount of the judgment and costs. We see no escape from the conclusion that by section 8 of the Probate Court Act (J. & A. if 3266) the Administration Act is embodied therein. If so, there is one general provision for appeals under section 11 of the Probate Court Act (J. & A. if 3269), and a special and different provision for appeals from the allowance or rejection of claims under section 68 of the Administration Act (J. & A. if 117). This does not create any new or unusual condition, for section 124 of the Administration Act (J. & A. if 173) contains a general provision for appeals differing from that of section 68 in regard to appeals from the allowance or rejection of claims. Until the Probate Court Act was passed, the administration of the estates of deceased persons had been for many years conducted in the County Courts and is yet so conducted in most of the counties of the State; yet the County Court Act in section 122 (J. & A. if 3248*) has a general provision for appeals upon appellant giving bond and security in such amount and upon such conditions as the court shall approve. It therefore appears that before the Probate Court Act was adopted there were two general provisions for appeals, one in the County Court Act and one in the Administration Act, and also a different provision specially limited to the allowance or rejection of claims.”

This gives an entirely different construction to section 124 of the Administration Act than is presented in Mundy v. Mundy, supra. We are not concerned with Mr. Justice Dibell’s holding that section 68 of the Administration Act is still in force, applying to a separate and special class of cases, as that question does not arise in this case. Neither are we concerned whether section 8 of the Probate Court Act, Cahill’s St. ch. 37, Ti 338, has effected an “embodiment” of the Administration Act. That section reads:

“The process, practice and pleadings in said court (probate court) shall be the same as those now provided or which may hereafter be provided, for the probate practice in the county courts of the State, and all laws now in force or which may hereafter be enacted, concerning wills or the administration of estates, shall govern and be applicable to the practice in the probate courts of the State.” The County Court Act contained a section somewhat similar. If section 124 of the Administration Act is to be construed as providing for appeals in manner as taken before justices of the peace, how can it be said that the Probate Act and the County Court Act took over that section with its construction, when, in each of the new acts the General Assembly provided for appeals to be taken in an entirely different manner? If appellant’s construction of section 124 of the Administration Act is correct, then we are in the anomalous position in probate matters of having one method of appeal provided for in the Administration Act and an entirely different method of appeal provided in both the County Court ' Act and the Probate Act. If this is the situation, then one of two results must follow: either the provisions of the Constitution have been violated and the practice is not uniform, or the sections providing for appeal in the County Court Act and Probate Court Act have never been adopted and are void. The latter result cannot follow for the reason that the court held in Hall v. First Nat. Bank, supra, that the appeal was properly taken under section 122 of the County Court Act.

In Hall v. First Nat. Bank, supra (330 Ill. 235), one W. C. Hall filed his petition to set aside the will of Thomas N. Hall, deceased. The county court denied the petition and petitioner prayed and was allowed an appeal and the court fixed the amount of the bond, but no time was fixed within which the bond should be- presented and filed. The bond was not presented and filed during the term. It was held that the appeal should be dismissed. In Pence v. Pettett, supra, the court held that the. provisions of section 124 of the Administration Act and the provisions for appeal in the County Court Act and the Probate Act all provided for the appeal to be taken in substantially the same manner. Under section 124 of the Administration Act the appeal is to “be allowed ... in all matters arising under this Act ... as in other cases, and bonds with security to be fixed by the county or circuit court, as the case may be.” “The appeal is to be allowed.” This presumes an order of court. Under section 16 of the Wills Act it is provided that “appeals may be taken,” etc., and under section 68 of the Administration Act the provision is: “Either party may take an appeal,” etc. The term “as in other cases” is in connection with the phrase “and from the circuit court to the supreme court, as in other cases,” and as the statute of 1845 has been rewritten the phrase has no reference to- the appeal from the county or probate court to the circuit court. The “bond with security” is to be fixed by the county or probate court when the appeal is to the circuit court, and is to be fixed by the circuit court when the appeal is to the supreme court 1 ‘as the case may be. ” It is to be noted that the “bond with security is to be fixed by the court.” In a court of record this requires an order of court. In appeals from justices the bond is fixed by law and is merely filed with and approved by the justice of the peace or the clerk of the court to which the appeal is taken. It requires no judicial act. The Act of 1845 from which section 124 descended, reads as follows:

“Sec. 138. Appeals shall be allowed from all judgments, orders or decrees of the court of probate, to the circuit court, in favor of any person who may consider himself or herself aggrieved by any judgment, order or decree of the court of probate as aforesaid, and from the circuit court to the supreme court, as in other cases.”

As we have seen, when the probate court was presided over by a justice of the peace appeals were taken in the manner of justices of the peace. Since the court of probate has become a court of record, the appeals should he taken in accordance with the statute and in a manner becoming the dignity of a court of record.

While there has been some contrariety of opinions in the early cases, it is the opinion of this court that appellant never perfected an appeal of the cause from the probate court to the circuit court of Sangamon county, and that the appeal should have been dismissed by the circuit court.

Coming to the merits of the controversy, appellant contends that the transaction represented merely an unexecuted gift and the beneficial interest in the note not intended to pass to appellee until the decease of Isabelle Cooney, if ever, rendered the provision testamentary and invalid under the statute of wills. Appellant contends there was no delivery or acceptance of the gift. It is conceded by all parties that the deceased intended and desired to give the principal of the note to appellee if she should die before the note became due. It was not intended as a gift causa mortis, for while Isabelle Cooney was about 80 years of age when the note in question was executed, still she was in the enjoyment of good health for a woman of her age. But we think there is another principle operative in this case that counsel on neither side have fully developed. By the Act of 1919 the legislature did not expressly abolish joint tenancies with the right of survivorship in personal property, but it passed an act providing as follows:

“Except as to executors and trustees, and except also where by will or other instrument in writing expressing an intention to create a joint tenancy in personal property with the right of survivorship, the right or incident of survivorship as between joint tenants or owners of personal property is hereby abolished, and all such joint tenancies or ownerships shall, to all intents and purposes, be deemed tenancies in common,” etc., except as to deposits in banks, etc. Cahill’s St. ch. 76, If 2.

The note in question, being an instrument in writing, does not in any manner express an intention to create a joint tenancy with the right of survivorship, as “joint tenants have one and the same interest accruing by one and the same conveyance, commencing at one and the same time and held by one and the same undivided possession.” 2 Blackstone, 179.

At no time was the interest of Isabelle Cooney and appellee in said note the same. By the terms of said note the interests were diverse and the beneficial interests commenced, or rather accrued, conditionally at different times. This note had no terms that affected executors or trustees, and did not express an intention to create a joint tenancy. The full purpose of this statute was to abolish the incident of survivor-ship, except as to executors, trustees and where “by will or instrument in writing, expressing an intention to create a joint tenancy,” etc. but the statute further reads, after abolishing the incident of survivorship: “And all such joint tenancies or ownerships shall, to all intents and purposes, be deemed tenancies in common. ’ ’ It may be said that althoug’h the instrument in writing did not express an intention to create a joint tenancy, yet, that in some manner, by gift, contract, trust or otherwise, about which in this case there has been a great deal of contention, the note or “instrument in writing” did vest appellee with some kind of an interest in the note, which by the statute, has ripened into a tenancy in common. The answer to this is complete. The fund and indebtedness for which the note in question was given was the property of Isabelle Cooney. The note in question was made payable to “Mrs. L. C. Cooney (Isabelle Cooney) or William Maher in event of the death of Mrs. L. C. Cooney.” Appellee had no interest in the subject matter except by the “gift” or “novation” attempted to be made by this note. Appellee’s only possible interest in the subject matter could accrue by his life surviving that of Isabelle Cooney’s life. If appellee died first, the note would be paid to Mrs. L. C. Cooney and that would end the matter. If Isabelle Cooney died first then appellee would take by right of survivorship and by that right only. But we have seen that the legislature passed this act for the very purpose of avoiding the evil of the right or incident of survivorship and abolished the same, except in the instances pointed out, and therefore appellee never entered into the ownership of said note in any manner. Except for the statute quoted and the laws of the State, under the proofs submitted appellee’s interest could be established on the theory of contract and novation, as under the statute the law is applied to bank deposits payable to two or more persons, and by survivorship.

Appellee in this cause has filed a cross error and brought the record of the circuit court of Sangamon county by bill of exception, taken in apt time, to this court, assigning error on the ground that the circuit court of Sangamon county did not dismiss appellant’s appeal from the probate court to the circuit court. Appellee, appearing specially in the circuit court, at his first opportunity moved to dismiss the appeal of appellant to that court. From what has been said it is the opinion of this court that the circuit court erred in not dismissing appellant’s appeal from the probate court, and appellee can properly raise that question on his assignment of cross error. Cahill’s St. ch. 110, ¶ 107. In Pelouze v. Slaughter, 241 Ill. 215, 224, the court held:

“The purpose of the statutory assignment of cross-errors is to enable the court to finally decide the controversy without necessitating a separate appeal or writ of error. Formerly there was no right to assign cross-errors, but any party deeming himself aggrieved by a judgment or decree was compelled to take an appeal or sue out a writ of error. An appellee or defendant in error was not allowed to assign cross-errors except with the consent of the appellant or the plaintiff in error. (Smith v. Sackett, 15 Ill. 528.) In Carter v. Moses, 40 Ill. 55, the appellee asked leave to assign cross-errors, but the court said that in a chancery case an appeal brought the whole case before the court and it would be considered upon its merits without the assignment of cross-errors. In any case a party was permitted to prosecute a writ of error although the opposite party had appealed from the same judgment, and one of the proceedings did not affect the other but both might progress at the same time. (Harding v. Larkin, 41 Ill. 413.) In 1869 an act was passed which provided that the appellee or defendant in error should have the right to assign cross-errors, and the court should proceed in the disposition of the case in the same manner as when cross-errors were assigned by consent. (Laws of 1869, p. 163.) Afterward, in Page v. People, 99 Ill. 418, where the question arose on demurrer to a plea in bar of the writ of error, it was held that it was optional with an appellee or defendant in error to assign cross-errors or prosecute an appeal or writ of error separate and independent of that of his adversary; that if a party assigned cross-errors he could not afterward prosecute a writ of error upon the same record, but if he did not assign cross-errors he was not barred from prosecuting* a writ of error. In general, the cases holding that a party can only protect his right by assigning cross-errors have been where the decree or judgment did not give the party all the relief that he claimed or gave to his adversary more than he was considered entitled to, and where the appellee or defendant in error might have taken an appeal or prosecuted a writ of error. ’ ’ It is only in cases of this kind where parties join in trying the cause in the circuit court without any objection to the jurisdiction of the court that they are held to have waived the error. (Grier v. Cable, 159 Ill. 29, 31; Stafford v. Stafford, 299 Ill. 438, 445; Wabash R. Co. v. People, 196 Ill. 606, 611; Eggleston v. Royal Trust Co., 192 Ill. 101, 102; Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill. 200, 202; Jenkins v. Congreve, 92 Ill. App. 271.) And in Bennett v. Karasik, 164 Ill. App. 362, the court held: “If a party relies upon a waiver to the question of jurisdiction upon failure to file an appeal bond in apt time, he must show by the bill of exceptions that some step was taken prior to the motion to dismiss which effected such waiver. ’ ’

From what has been said, it is apparent that no appeal was actually taken and perfected in accordance with the requirements of the statute from the judgment of the probate court; that the circuit court, therefore, was without jurisdiction to proceed to a trial of the case de novo.

The judgment of the circuit court is, therefore, reversed and the cause remanded to the circuit court of Sangamon county, with directions to dismiss appellant’s appeal to said court from the probate court.

Reversed and remanded with directions.


author: Mr. Justice Niehaus

text:
    Fred Genzel, Administrator of the Estate of Charles Wellman, Deceased, Appellee, v. New York, Chicago & St. Louis Railroad Company, Appellant.
    Gen. No. 8,424.

      Opinion filed November 18, 1930.
    H. M. Steely and H. M. Steely, Jr., for appellant; John B. Cockrum and J. T. Markey, of counsel.
    H. Ernest Hutton and Louis J. Bremer, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the

court.

This action was brought by Fred G-enzel, the appellee, as administrator of the estate of Charles Well-man, deceased, under the Federal Employers’ Liability Act, for the benefit of the next of kin of the deceased, in the circuit court of Vermilion county, against the New York, Chicago & St. Louis Railroad Company, appellant, to recover damages for the alleged wrongful causing of the death of Wellman, which occurred on June 18, 1926. The deceased was an employee of the appellant; and at the time of his death was acting as flagman for an extra gang of workmen who had been at work for several weeks putting in new ballast in the appellant’s roadbed; also some new tracks between Ellsworth and Padua, stations on appellant’s railroad; and on the day referred to, was working on the railroad track just west of Padua; and were putting in new rails at that point. The deceased, upon assuming his duties as flagman, to signal trains coming toward Padua, received particular directions from the foreman of the extra gang of workmen with reference to placing torpedoes on the tracks as-warning to trains; and he was directed to proceed towards Ellsworth, the next station east, and to the top of a hill which was about a mile east of Padua, and here to place two torpedoes on the rails, two rail lengths apart; then to come back to a point near the highway crossing located some distance east of Padua. And the deceased thereupon started out to perform the duties assigned to him as flagman; and apparently to carry into effect the directions given him by .the foreman. It is evident that the deceased had gone to the top of the hill, and had placed two torpedoes on the rails there; but no one appears to have seen him after he had started out in the performance of his duties until he was discovered suddenly by the fireman on the engine of the westbound local passenger train which caused his death, just before the train struck him. He was then lying on the railroad track on which the westbound train was running; and against the south or outside rail of the track, about 46 feet from the west end of an S curve in the track; and at a point 888 feet east of the center of the highway crossing east of Padua, about opposite a wild cherry tree located near the railroad track.

The evidence does not show any reasonable explanation to account - for -Wellman being in the perilous position in which he was discovered;' except that he may have been overcome by some ailment which appeared to affect him on the morning he started ont to perform his duties as flagman.

On a previous review of this case concerning errors which are not now involved, the case was reversed and remanded. 254 Ill. App. 624.

Upon reinstatement in the court below, the case proceeded to another trial, on three amended counts of the declaration charging negligence, namely, the fourth additional count, the seventh additional count and the eighth additional count. In defense the appellant filed the general issue and two special pleas; one special plea alleging contributory negligence and the other based on the defense of assumed risk. The jury found a general verdict of guilty, and assessed the appellee’s damages at $5,000, whereupon the court rendered judgment. This appeal is prosecuted from the judgment.

A number of questions are presented for review on this appeal. It is contended that the verdict is against the weight of the evidence; and that the jury were not warranted in finding the appellant guilty of negligence.

The seventh additional count of the declaration contains the following charges of negligence against the appellant:

“It avers that between said villages, for four weeks next prior to the date of the accident, servants of defendant, called gang or crew, of the number of to-wit: twenty men, among whom was Charles Well-man, were employed in taking up, replacing and relaying rails and ties in said main track, and working on the roadbed thereunder, and in making repairs, and that during the progress of such work' one of said section men would be sent out to act as flagman of such trains approaching along said main track, daily, for the entire day, and had by defendant been stationed along said main track at different points, one and one-half miles in each direction from the place where said section crew were working, and on June 18, 1926, and for every third day for sixty days previous one of said flagmen had been stationed at different points on said railroad one and one-half or two miles east of said village of Padua, and on said date, at nine o’clock in the morning, Charles Wellman, was by defendant, stationed to act as flagman along said main track at a point one mile east of Padua, and he, the said Charles Wellman, then and there was lying, reclining, or sitting, asleep, sick or resting, upon, next to and against the rail and ties of said main track, in such position that he would be struck and injured or killed by trains passing along said main track.

“Further avers that in the repair work on said track and railroad on said date, and for sixty days prior thereto, at a point a mile east, and another point two miles west of where Wellman then and there was, the defendant had placed cautionary signals called ‘slow speed sign’ consisting of a post, to-wit: nine feet from the ground, supporting on top a large board three feet by six feet on which was printed the word ‘Slow’ in large letters twelve inches high, and which slow speed signs were conspicuously placed upon the right and adjoining the track, and were placed where they were clearly visible to the engine crew of the train approaching same in the day time, from the great distance of to-wit: one mile.

“Further avers that defendant in its business had certain rules and regulations prescribing the duties of its servants operating its said trains, and that in said rules it was provided, among other things, that a ‘fixed signal’ was a signal of fixed location, indicating a condition affecting the movement of trains, and that a board called ‘slow speed sign’ indicated slow speed, with the name of ‘slow speed sign,’ and with a location at the point to be protected, and upon the right and adjoining the track to which it refers, and which said slow speed sign had printed upon it in large letters the word ‘slow’ and which slow speed sign was the said cautionary signal so stationed to the east and west of where Wellman was located.

“Further avers that it became and was the duty of defendant, by its servants running and propelling the said train toward Wellman to use reasonable care and diligence to keep the same at slow speed after reaching said slow speed sign to the east of said Charles Wellman, until the train had reached and passed where he was; but that in violation of said duty the engineer and fireman so propelled said train, and carelessly and negligently drove and operated same, up to and past said slow speed sign east of where Wellman was located, at a "high and dangerous speed, ... in consequence of which said train struck Wellman with great force and violence, . . . and in consequence of being so struck said Charles Wellman was so severely injured that within one-half hour thereafter he died.”

The charg’e of negligence in the count referred to constitutes the main controverted question in the case. The record discloses a sharp conflict in the testimony of the witnesses for the appellant and the witnesses for the appellee concerning the issue presented by the count mentioned.

It is insisted by the appellee that the evidence shows that on the day Wellman met his death, there was a “slow board” sign on the east end of an S curve; and on the northerly side of the appellant’s railroad track; on the side used by the engineer in managing the train; and that this “slow board” sign, under the rules and customary operation of appellant’s trains required the engineer to slow down the speed of the train; but that the engineer negligently failed to observe the requirements of this “slow hoard” sign;' and check the speed of the train; but kept on running as if the “slow board” sign had not been there; and that in consequence, he was unable to stop the train in time to prevent it striking Wellman after he had notice of Wellman’s presence on the track, near the west end of the curve referred to.

It is appellant’s contention, that the “slow board” sign was not at the east end of the curve, but had been moved farther west and past the point of the accident. The engineer who propelled and managed the train testified as follows:

“As I went west through the curve I didn’t notice any boards or signs on the engineer’s side except a whistling post. That whistling post is a mile east of Padua. ’ ’

Harry Fry testified concerning the controverted question of the location of the “slow board” sign, as follows:

“I am twenty-five years old and live at Ellsworth and have lived there all my life. I am a farmer. On June 18, 1926, I was working for Charles Kimerly on a farm northwest of Ellsworth, doing farm work. I know where the curve is between Ellsworth and Padua, and where the east end of the curve is. On June 18, 1926, about nine o ’clock in the morning, I was working in an oats field right north and along the railroad track. ... A little west of the east end of the curve. ... I saw this'train the morning of June 18th. It came from the east while I was cutting weeds there. ... I first saw it coming west of Ellsworth. Just for a moment. ... I saw it when it came opposite me. . . . As to the speed as it entered the east end of the curve that day, I observed it for about 200 feet. . . . In my judgment its speed when it entered the east end of the curve was 35 miles an hour. . . . As to whether there were any railroad boards or signs of any kind along that railroad on this day, there was a slow board there a little past the east end of the curve on the north side of the railroad track about eight or ten feet. It is about eight or ten feet high and about four feet square, and had the word ‘slow’ on it. It is about four feet high from the ground up to the board. It was on a post, and the top of the post was about six feet high. The same board was there a few days before and a few days afterwards.”

Glenn Bell who was one of the construction gang who was working on the day of the injury testified concerning’ the location of the slow board referred to, as follows:

“There was such boards in use on June 18,1926, the day Wellman was killed. There was one board. I don’t know what the system was in reference to those boards. This board was at the east end of the S curve, just around the curve a little ways. It was off on the north side of the railroad track six or eight feet, standing up on a post about eight «feet high I expect, and the board was about four feet square, and on the board was the word ‘slow.’ No other words. The board was painted yellow, and the letters in black. Pretty good sized letters, six inches high, anyway. I don’t know whether it was stationed there at the time Charles Wellman was killed. ... I didn’t see the board on that day at all. I saw it a couple of days afterwards. ... I had seen that board on the east end of the curve before the accident, a couple of days before.”

Cova Curry, also one of the construction gang working on appellant’s railroad on the day of the injury, testified concerning the location of the slow board as follows:

“I know where the S curve is between Ellsworth and Padua. There was a board at the east end of the curve on the north side of the railroad track. I don’t know how far from the track. I judge five or six feet. It was' a board on a pole, six or seven feet high, and the board was about four feet square and faced the east. The board extended north and south and had on it the word ‘ slow. ’ The color of the board was yellow, and the letters were black. When I saw it there was nothing else on it but the word ‘slow.’ The letters were eight or ten inches high up and down, and sideways about an inch and a half or two inches. As to whether that board was there on June 18, 1926, I suppose it was. I saw it afterward when we were going home on Saturday after this Thursday. I had seen it there before the 18th once.”

Lew Curry testified concerning the location of the slow board as follows:

“I live at Hoopeston, Illinois. I am forty-three years old. I was employed in different places in June, 1926. I worked for the railroad some that year. . . . I was working there before the day of Wellman’s death and had been for about two or three weeks. . . . I know where this S curve between Ellsworth and Padua is. There was a board alongside of the railroad at the east end of the curve on the day of his death. It was on the north side of the track and about five or six feet from the track. It was on a post five or six feet high. It was a square board I judge two and one half or three feet. It was painted yellow on the east side, and had in black letters ‘slow.’ There was nothing else on the board. It was put there when we commenced work, and it was there after the accident, at the same place, the next day afterward. It seemed to be the same board.”

Bernard C. Davis, who was employed as a flagman working with the construction gang that was doing repair work on the railroad track between Ellsworth and Padua, testified concerning the location of the slow board on the day of the accident, as follows:

“In that work some slow boards were used. A slow board is a signal for the train to slow down within controlling power within the length of the train. Just one slow board was used, that is, one at each end. The work on the rails was done west of this S curve. There was a slow board stationed for trains coming to the west and that was east of the bend. For trains from the west going east there was another slow board at the west end. For trains going east the slow board was on the south side, and for trains going west it was on the north side. It had the word ‘slow’ on the board, and the board was yellow, with black letters. Its size was about two feet eight inches by four feet, and it was placed on a post six feet in the air, and for a train coming from the east the slow board faced to the east. At the top of the board was a lantern for night signaling that would be seven and one-half or eight feet high. The boards were placed six feet from the outside of the rail, in the vision of the engineer, and just about on a level with the cab window. ’ ’ The same witness also testified as follows:

“After the accident I was sent out to take Well-man’s place. . . . That afternoon a representative of the railroad came up to where I was after I had taken Wellman’s place. It was Mr. Gard, the road master from Bloomington. . . . He walked up the track going east from Padua and came up where I was. I was at the cherry tree when he got there.

“I saw the same board after the accident, and when I saw it Mr. Gard was there. I saw it immediately after he got there, the slow board. I was standing at the west end of the curve, I could see the slow board from the west end of the curve.”

In contradiction of the evidence adduced by the appellee, concerning the kind of slow board in use at the time of the accident, and its location, the appellant called the witness Ward Dawson who testified that he was in the employ of the appellant as section foreman at the time of the accident, and had charge of the construction gang which had been working in and about Ellsworth and Padua. He testified about the kind of a slow board in use at that time, as follows:

“Yes sir, there was a slow board used at all times during our work. It was a big yellow board and had on it reduce speed. I am familiar with Buie 720. There was no board of that kind used on the work at any time during the work with just the word ‘slow’ on it. The board we used was the board designated by Buie 719, and we moved that board as we worked west. When we first started work, it was placed near Ells-worth, and there was a time when it was placed down near the east end of the curve, and on the day of the accident that'board was about eighty rods west of the highway. . . . There was no board of the kind mentioned in our Buie 720 at the east end of the curve, and no board at any place in the curve at all outside of the whistle sign. Myself and two men placed that board there at the culvert, and we took it down there from the east end of the curve. We did that about four days previous to the accident. . . . The sign board, or reduce speed sign, had on it there, ‘reduce speed to ten miles an hour. ’ . . . When a board of this kind, ‘reduce speed sign’ is used, that is a sign to the engineer that at about 3000 feet from that slow board there are men working, and he had to have the train under control. It does not mean that he should come up to that board with the train under control and down to ten miles an hour. At whatever rate of speed he is traveling at, it means that from that point for- 3000 feet, he should be down to the speed that’s ón the board, and if there is no speed written on the board, he should be down to ten miles an hour. He has 3000 feet to do that in.”

George W. Bedd, the conductor on the train that caused Wellman’s death, testified concerning the slow board, as follows:

“As I went west from Ellsworth to where the accident happened, there was no slow board out on the north side of the track that I saw. ’ ’

And on cross-examination he testified:

“I was in the coach, and was not looking for a slow board, and don’t know whether there was any at the east end of the curve or not. There was a slow board by the culvert. No sir, I wasn’t watching for that board. I only know it was a slow board from the general appearance, I saw the back side of that board as the train went by. I don’t know what was bn the east side of it.”

J. A. Gard, the roadmaster in the employ of the appellant, testified as follows:

“In June, 1926, I lived in Bloomington, Illinois, and had charge of the track department from Temple-ton, Indiana to Peoria, Illinois. ... I recall this work that was going on between Ellsworth and Padua, and west of Padua. . . . On June 18, 1926, the day of this accident, I went out there in an automobile. I left Bloomington between eleven and twelve o’clock, and the men had gone to work at the time I got to Padua. That day they were working west of Padua. When I got to Padua I walked east to the top of the hill and to the east end of the job, around through this curve to the east, and went by the cherry tree, clear through the curve to the east end of the job. . . . There was no slow board on the north side of the track east of that cherry tree that day. There was a slow board pretty near the culvert west of the highway about 800 feet. Its color was yellow and it had on it ‘reduce speed ten miles an hour.’ It faced to the east. There was no other board out that day on the north side of the track between Ellsworth and Padua.”

The matter of the weight of the evidence concerning the kind of “slow board” used on the day of the accident, and as to its location, east or west of the place of the accident, were questions for the jury to pass upon and involved the determination of the credibility of the witnesses for the respective parties, concerning the controverted matters of fact. It is evident that the conclusion arrived at by the jury in that regard was that the greater weight of the evidence was on the side of the appellee. This court would not be justified in saying, in view of the proofs made, that the jury were not warranted in reaching this conclusion ; and it is clear that the verdict on the controverted points referred to is not manifestly against the weight of the evidence. Taking this view of the evidence, the jury was warranted in drawing the inference, that the failure of the engineer to observe the requirements of the “slow board” sign may have been the cause of the accident.

Error is also assigned on the first instruction given for the appellee, and on the modification and refusal of instructions presented by the appellant. Concerning the first instruction, the appellant contends that “it entirely ignored the question of assumed risk by' Wellman, contended for by the appellant, which had been pleaded in the case as a defense; that it also ignored the defense of Wellman’s alleged contributory negligence which appellant contends, was the sole cause of the accident.” Concerning these contentions, it is pointed out, that while the appellant pleaded “assumption of risk” as a defense to appellee’s right of recovery, the evidence does not show, nor tend to show, any facts upon which the doctrine of “assumption of risk” as generally defined, could be predicated. In Wheeler v. Chicago & Western Indiana R. Co., 267 Ill. 306, our Supreme Court clearly defined the doctrine as generally recognized by courts of review concerning the elements necessary to constitute this defense, as follows: “The law has long been settled in this State, that the servant, when he engages in an employment, does so in view of the risks incident thereto. He will be presumed to have contracted with reference to such risks, and to have assumed the same, if he receives an injury resulting from the incidental risks and hazards ordinarily connected with the employment. . . . Extraordinary risks, — that is, risks which may be obviated by the exercise of reasonable care on the master’s part, — are not assumed by the servant unless they are, or ought to be, known to and comprehended by him. The servant assumes all the ordinary risks of the service and all the extraordinary risks of which he knows, and the dangers of which he appreciates. (3 Labatt on Master and Servant, — 2d ed. — sees. 1178, 1179, 1186a.) ” In the same case, the court also adopts the definition of contributory negligence in connection with the “assumption of risk” which is referred to in Schlemmer v. Buffalo, R. & P. Ry. Co., 220 U. S. 590, namely, that “the conception underlying the servant’s assumption of a known risk is essentially that of an implied agreement to accept the responsibility for any bodily hurt which may result from his exposure to that risk. The theory upon which contributory negligence is held to preclude him from recovery is that he is guilty of imprudence in the premises, and that his imprudence is entirely or partially the cause of the injury.” 3 Labatt on Master and Servant, 2d Ed. sec. 1219. To the same effect is 8 Thompson on Negligence (White’s Supp.) Sec. 4611. These definitions are directly applicable and pertinent to the facts shown by the evidence in this case. The Federal Employers’ Liability Act, under which this suit was brought, provides that the fact that the employee may have been guilty of contributory negligence shall not be a bar to recovery, but the damages should be diminished by the jury in proportion to the amount of negligence attributable to such employee. Contributory negligence, therefore, although pleaded in defense, was not a defense to a recovery, but was a matter to be considered by the jury merely for the reduction of damages. The instruction complained of correctly instructed the jury concerning the effect of contributory negligence; and the evidence in the record clearly establishes that the defense of assumption of risk was not involved in the case, except that‘this defense is set tip in the special plea filed by appellant. The purpose of the instruction complained of was evidently to bring to the attention of the jury the provisions of the Federal Employers ’ Liability Act; and the legal effect of the matter of contributory negligence in the case.

We find no error in the instruction, nor in the court’s modification or refusal of instructions for the appellant; and the record does not disclose any reversible error. The judgment is therefore affirmed.

Judgment affirmed.