text:
    Charles J. Sup, Appellee, v. John Cervenka et al., Appellants.
    Gen. No. 31,349.

      Officers — ehcmge in pay of active firemen as affecting pension of retired. Under Cahill’s St. ch. 24, % 950, which provides that any fireman in active service who becomes physically or mentally disabled shall be retired on a pension of one-half his salary but may be recalled to active duty if his disablement is found to have left, such a fireman continues in the service of the city and his pension is to be computed, not on the basis of his salary at retirement, but on the basis of the salary of firemen holding the rank he did at retirement, as their salaries may be changed from time to time.
    Appeal by defendants from the Superior Court of Cook county; the Hon. William J. Lindsay, Judge, presiding.
    Heard in the second division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed May 17, 1927.
    Francis X. Busch, Corporation Counsel, for appellants; George F. Mulligan, Assistant Corporation Counsel, of counsel.
    Oscar F. Nelson and Joseph A. Ricker, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

This appeal is from an order directing a writ of mandamus to issue, commanding the hoard of trustees of the firemen’s pension fund of the city of Chicago and certain' officers of that city to cause a monthly pension to be paid to the petitioner, 11 equal to one-half the amount of monthly salary attached to the rank of fireman, first class, in the service of the city of Chicago. ’ ’

The facts are stipulated. On June 1, 1924, the petitioner was a member of the fire department of Chicago and held the rank of ‘1 Fireman, First Class. ’ ’ On that day he was placed on the pension roll because of disability incurred in the service. The salary attached to his rank at that time was $2,000 per annum, and petitioner has been receiving, since that day, a pension equal to one-half of that amount. By the annual appropriation bill for the year 1924, the salary attached to the rank of fireman, first class, was increased from $2,000 to $2,200, beginning October 1, 1924. The petition was filed April 15,1926, and seeks to have petitioner’s pension computed and paid on the basis of such increased salary, instead of the salary he received at the time of his retirement.

The question involved turns upon the proper construction to be given to section 9 of the Firemen’s Pension Fund Act of 1917 (Cahill’s St. ch. 24, U 950). The pertinent part of that section reads as follows:

“ § 9. If any fireman of any such city while in active service or on leave of absence shall become and be as so physically or mentally disabled as to render necessary his retirement from active service, said board shall order the retirement of such disabled fireman and he shall be paid a monthly pension equal to one-half the amount of salary attached to the rank which he may have held in such fire service at the date of his retirement. * * *
“If, after placing a fireman on the pension roll, the board shall become satisfied that such retired fireman has recovered from such physical or mental disability, said board shall order the suspension of the payment of his pension and that said'fireman report back to the marshal or chief of the fire department of such city, who shall thereupon order the reinstatement of such fireman in active service in the same rank or grade that such fireman held at the time of his retirement. ’ ’

Section 8, Cahill’s St. ch. 24, ¶ 949, of the same act states in substance that any fireman who has served 20 years “may retire from active service,” and if and when such retired fireman shall reach the age of 50 years,- “the board shall order and direct that such fireman shall be paid a monthly pension equal to one-half the amount of monthly salary attached to the rank which he may have held in the fire service at the date of his retirement.”

It will be noted that the language used in the two sections is the same, so far as it purports to fix the amount of the monthly pension to be paid to retired firemen, whether such firemen be retired because of length of service or because of disability. But in other respects, the difference between the two sections is marked. By the terms of section 8 a fireman who retires because of length of service does so voluntarily and when drawing a pension under that section is entirely out of the service, while the pensioner under section 9 is a fireman who has been ordered to retire because he has become disabled while in the service, and his pension is subject to the condition that the board may stop his pension and order his reinstatement “in active service” whenever his disability is removed. In other words, a fireman who asks for and receives ° a pension under section 8 is permanently separated from the service, while a fireman who is ordered to retire and is given a pension under section 9 remains in the service and subject to be called into “active service” as soon as he recovers from his disability.

In O’Neil v. Harding, 314 Ill. 516, the Supreme Court construed section 8 of this statute. The opinion filed in that case shows that it was there contended that the amount of the pension payable under that section should vary as the salary attached to the rank of active fireman varies. After stating that such a construction finds no basis in the context of that section, the court said: “The amount of the pension is determined by the amount of the salary ‘attached to’ the rank held by the pensioner at the date of his retirement. This indicates that the pension shall be a fixed amount determined at the time the pension begins, and there is nothing to indicate that the amount of the pension is to fluctuate from month to month. A pensioner who is drawing a pension under the section under consideration is entirely severed from the public service and is not subject to call.” This language implies that if a pensioner is drawing a pension under some other section (as, for example, section 9) which leaves the pensioner still in the service and subject to be called into active service upon certain specified contingencies, a different conclusion might reasonably be reached.

In Aitken v. Roche, 48 Cal. App. 753, this distinction was recognized and given effect. There, a member of the police department of San Francisco, who was retired and pensioned, under a statute similar to section 9 of the statute here involved, on account of physical disability received in the performance of his duty, sought by mandamus to have the amount of his pension increased because the salary attached to his rank had been increased while he was receiving his pension. The statute under which he was receiving his pension provided that members of the police department might be retired “upon an annual pension equal to one-half of the amount of salary attached to the rank which he may have held three years prior to the date of such retirement, to be paid him during his life and to cease at his death. In case his disability shall cease his pension shall cease, and he shall be restored to the service in the rank he occupied at the time of his retirement.” The court held that because of the sentence last quoted, pensioners who were retired on account of disability were entitled to one-half of the pay attached to their retirement rank when pension instalments became due, and not merely one-half of the pay which was attached to that rank when they were retired. The opinion of the court in that case cites and relies upon the opinion of the Supreme Court of the United States in the case of United States v. Tyler, 105 U. S. 244, where the court recognized a similar distinction in the acts of Congress between those pensioners who were permanently retired from the military service of the United States and those who were retired only from active service, the court holding that because officers of the latter class “may be assigned to such duty as the laws' and regulations permit,” they were entitled to the benefit of the Federal statute which increases the pay of officers by 10 per cent for every period of five years’ service.

While the question is not free from difficulty, we are of the opinion that the same distinction has been recognized by the legislature in the act in question between firemen who voluntarily retire and receive pensions under section 8, and firemen who are compelled to retire because of disability and are pensioned under section 9. Pensioners of the first class are no longer in the service of the city. Those in the latter class are still in the service of the city and liable to be called into active service, and the amount of their pensions is therefore to be computed on the basis of the salaries paid, from time to time, to firemen in active service holding the same rank the pensioners held at the time of their retirement.

For the reasons stated, the judgment is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: Mr. Justice Fitch

license: Public Domain

text:
    Alexander St. Clair, Appellant, v. J. C. Goldie and Elenor Goldie, Appellees.
    Gen. No. 31,447.
    1. Negotiable instruments — maturity of note authorizing confession of judgment at any time. A note containing a warrant of attorney authorizing confession judgment “at any time hereafter for such amount as may appear to be unpaid thereon” makes the note due for the purposes of judgment whenever the creditor asserts his right, and when he has entered judgment, he is entitled to have execution issue thereon.
    2. Appeal and error — when appeal will not lie from interlocutory order. An order staying proceedings under a writ of execution, issued on a judgment confessed on note under warrant of attorney, until the note’s maturity “or until the further order of the court,” is merely interlocutory and not appealable, and will so remain until a final order is entered, as an order denying a motion for an alias execution upon the sole ground that the debt is not due, or denying a motion to vacate the stay, or some similar order.
    Appeal by plaintiff from the Municipal Court of Chicago; the Hon. Charles F. McKinley, Judge, presiding.
    Heard in the second division of this court for the first district at the October term, 1926.
    Appeal dismissed.
    Opinion filed May 17, 1927.
    Kenneth F. Simpson, for appellant.
    Ross Lee Laird, for appellees.
   Mr. Justice Fitch

delivered the opinion of the court.

After judgment by confession was entered on a promissory note, and an execution thereon was issued, an order was entered on defendants’ motion staying further proceedings under the writ “until the maturity date of the promissory note thereunder confessed, or until the further order of the court.” Plaintiff prayed and perfected an appeal from that order and the point is made that the order is not final or appealable. The words “or until the further order of the court” imply that the order is merely temporary and interlocutory. (O’Hara v. Pennsylvania R. Co., 2 Grant [Pa.] 241.)

There is a bill of exceptions in the record, but there is nothing in it showing upon what ground the court entered the order staying the execution except a statement that the motion of the defendants was to stay the execution “until the maturity date of said judgment note, namely, April 16, A. D. 1928.”

In Raban v. Mahr, 244 Ill. App. post, we held, on the authority of Sherman v. Baddely, 11 Ill. 622, that where, as in this case, a note contains a warrant of attorney authorizing a confession of judgment “at any time hereafter * * * for such amount as may appear to be unpaid thereon,” the effect of that stipulation is to make the note due, “for the purposes of the judgment,” whenever the creditor chooses to assert his right under the contract to enter judgment thereon, and having done so, the judgment creditor' is éntitled to an execution. The same ruling was made in Adam v. Arnold, 86 Ill. 185; McDonald v. Chisholm, 131 Ill. 273; Farwell v. Huston, 151 Ill. 239; Thomas v. Mueller, 106 Ill. 36; Alldritt v. First Nat. Bank of Morrison, 22 Ill. App. 24 and 192; Elkins v. Wolfe, 44 Ill. App. 376; Great Western Hat Works v. Pride Hat Co., 224 Ill. App. 249; Bradshaw v. Hansen, 232 Ill. App. 44.

If the order appealed from had merely stayed the execution until the “maturity date” of the note, it would have had no practical effect, for the note was then past due by the election of the judgment creditor, but the remainder of the order implies that either party may apply to the court for a further order. Hence, until some final order is entered, such as, for example, an order refusing to vacate the stay order, or an order denying a motion for an alias execution, upon the sole ground, in either case, that the debt is not due, or some similar order indicating a final disposition of the matter, the order remains interlocutory and is not appealable.

For the reasons stated, the appeal must be dismissed and it is so ordered.

Appeal dismissed.

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


text:
    Daniel J. Coyne and Richard J. Coyne, trading as Coyne Brothers, Appellees, v. Oregon Short Line Railroad Company, Appellant.
    Gen. No. 31,461.
    1. Carriers — when railroad cannot be held liable as warehouseman. A count in assumpsit for damages for a common carrier’s negligent handling of a shipment as warehouseman is not sustained by evidence showing that the shipment was delivered to the consignee before the arrival of the time, prescribed by the bill of lading for the carrier’s liability as warehouseman to begin.
    2. Carriers — when delay in delivery of freight excused by congestion at point designated for delivery. Although before a shipment is accepted a common carrier must notify shippers of any inability to move goods in the regular course to a certain point, yet consignment to “Chicago, Illinois,” will not make the carrier liable for failure to deliver the shipment on time in Chicago to one station of congested delivery demanded by consignee out of many stations of free delivery in the city.
    3. Carriers — construction of shipper’s instruction as to place of delivery. A shipper’s instructions to a common carrier to advise the consignee of a shipment to Chicago cannot be construed to mean that, the shipment was to be made to any particular station in Chicago even though one station was the customary receiving point of the consignee, and hence the carrier cannot be held liable for failure to deliver to that point in schedule time upon notifying the consignee of congested delivery there.
    4. Carriers — nonliability for delay in delivery where consignee has notice of embargo at point designated. Consignees who are notified by a common carrier that a certain freight receiving station is under embargo due to congested delivery there before they give any diversion or reeonsignment orders, cannot hold the carrier liable for damages due to delay at that point at which they have demanded delivery after the carrier’s notice.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Jesse Holdom, Judge presiding.
    Heard in the second division of this court for the first district at the October term, 1926.
    Reversed with a finding of facts.
    Opinion filed May 17, 1927.
    Rehearing denied May 28, 1927.
    John A. Sheean, for appellant.
    J. V. Delaney, for appellees.
   Mr. Justice Fitch

delivered the opinion of the court.

This appeal is from a judgment against defendant for $85.43, the agreed amount of the loss sustained by the plaintiffs through the alleged negligent handling of five interstate shipments of potatoes. The trial was before the court without a jury and most of the essential facts were stipulated, although some evidence was heard in addition to the stipulation.

The shipments in question were made from points on the line of defendant’s railroad in Oregon and Idaho. The first carload was shipped on September 5, 1923, the second on September 11, 1923, and the last three on September 13, 1923. The shipper was the California Vegetable Union, and two of the cars were consigned to itself at North Platte, Nebraska, and three to itself at Denver, Colorado. While in transit, all were “diverted” and reconsigned by the shipper to itself at Chicago, with directions to “advise Coyne Brothers.” In the reconsignments, the cars were routed over the Chicago & Northwestern Railway. In making these reconsignments, the specified destination was “Chicago, Illinois,” without designating any particular team track in that city, although there were 25 places in Chicago at which there were team tracks ordinarily available for the delivery of such shipments. The stipulation states that the customary track for the delivery of potatoes handled by the Northwestern was at Grand Avenue, and it was shown that in July, 1922, plaintiffs had sent a written request to the Northwestern “to forward all cars of potatoes billed to Coyne Brothers straight or to shipper’s order, notify or advise Coyne Brothers, to Grand Avenue team track,” and that the Northwestern had acknowledged receipt of that letter, stating that it “will be governed accordingly,” and had acted upon that request.

It was stipulated that all the shipments were handled without negligence, over the prescribed route, to Proviso, Illinois, where the outer Chicago yards of the Northwestern Railway are located, and all arrived there on schedule time. As each car arrived at Fortieth Street, Chicago (a distributing yard of the Northwestern located 10 or 12 miles east of Proviso), an arrival notice was given to plaintiffs, who, on the same day, instructed the Northwestern to reconsign the car to the Grand Avenue team track. At that time, and for some time prior thereto, there was a congestion of potato shipments at Grand Avenue and such shipments were sent to Grand Avenue in the order in which reconsigning orders were received, without dscrimination in favor of any shipper, and the cars involved in this case were sent to Grand Avenue in their turn, in accordance with this practice.

On September 4,1923 (before the first of these shipments was made), the Northwestern Railway Company published and declared, in the manner prescribed by the Interstate Commerce Commission, an embargo on “all carload shipments of potatoes consigned to, for reconsignment to, or intended for delivery on any specified or designated team tracks at Chicago,” unless such carload shipments were “waybilled to Fortieth Street, Chicago, with notation on waybills and bills of lading — ‘Subject to such team track delivery as may be available. ’ ” The notice of the embargo, directed “To all Superintendents and Agents,” further stated that the embargo “does not interfere with shipping potatoes to Chicago, but merely means that team track assignment cannot be made in advance of arrival of cars at Fortieth Street.” It was shown that this embargo continued during all the time the shipments in question moved and until September 29, 1923, when it was superseded by a tariff to the same effect.

All the reconsignments from the destinations named in the original bills of lading were made during the life of this embargo, and while the stipulation states that the “shipper or party issuing the reconsignment in any instance did not have actual, as distinguished from constructive, notice of the embargo in question,” an agent of the Northwestern Railway, located at Fortieth Street, testified, without contradiction, that he personally notified the plaintiffs of the existence of the embargo “the first day after the embargo came out” (which was before the first reconsignment of any of the cars) and “that cars would go down to Grand Avenue in turn, ’ ’ if plaintiffs would not take any other team track. The same witness also testified that as each of the cars in question arrived at Fortieth Street, he called up the plaintiffs and notified them “that the car was being held for orders,” advising them at the same time that on account of the congestion at Grand Avenue, plaintiffs could have the cars taken to any one of several other specified team tracks, but that plaintiffs replied that “they would not take anything else but Grand Avenue,” whereupon the witness told them “the car would have to take its turn to Grand Avenue. ’ ’ One of the team tracks so offered to plaintiffs was at Clinton Street, four blocks from Grand Avenue, which had a capacity of 200 cars and was not congested.

It was stipulated that on account of these facts, four. of the cars in question were delayed one day each, and the remaining car was delayed two days, and as to each car, “that had it not been for the congestion hereinbefore referred to and the said embargo, the car would have arrived at Grand Avenue” that much sooner, and that by reason of such delays plaintiffs sustained losses aggregating $85.43 on the five cars.

Each of the bills of lading issued by defendant contains a provision that “no carrier * * * shall be liable for any * * * delay caused by * * * the act or default of the shipper or owner.”

The action is in assumpsit. There are three counts in the declaration as to each of the five carloads in question. The first count in each series alleges that defendant did not carry out its promise to safely and securely carry a specified carload to Chicago, Illinois, and there deliver the same to the plaintiffs. The second of such counts alleges a duty on defendant’s part to safely and securely carry the property to Chicago and there deliver it to the plaintiffs within a reasonable time, and that defendant so negligently handled the shipment that by reason of such negligence plaintiffs sustained the damage complained of. The third count of each series is based upon the alleged negligence of the defendant as a warehouseman. There is no evidence to sustain such third counts. It was shown that all the cars were delivered to the plaintiffs before the time prescribed by the bill of lading for the liability of a warehouseman to begin had arrived. We agree with defendant’s counsel that the only counts of the declaration to which the evidence applies are the second counts in each series of counts, which expressly charge negligence in not transporting and delivering the shipments within a reasonable time. Under those counts, it being stipulated that the cars were carried without negligence and on schedule time up to the time they reached Proviso, the main question presented is whether the defendant is liable for the subsequent delays.

Upon this question defendant contends that under the circumstances shown by the stipulation and the evidence, the delay was not its fault and could have been avoided by the plaintiffs if they had not refused to accept defendant’s offer, made upon the arrival of the cars at Fortieth Street, to send them .to the Clinton Street track or some track other than the congested track at Grand Avenue. Plaintiffs contend, and the trial court apparently found, that the defendant was negligent as a matter of law upon the undisputed facts, in failing to notify the shipper of the congestion and the embargo at the time the defendant accepted, the diversion orders reconsigning the shipments to Chicago over the line of the Northwestern Railway.

In support of these contentions both parties cite and rely upon the opinion of the Supreme Court of the United States in Eastern Ry. Co. of New Mexico v. Littlefield, 237 U. S. 140. That was a suit for damages resulting from the failure of the carriers to furnish cars for the shipment of cattle after a proper demand for the same had been made, and the answer of the defendants to the plaintiffs’ declaration alleged that an unprecedented rush of settlers to the southwest had created such an unprecedented demand for transportation facilities of all kinds, including cars for live stock, that the carriers were unable to furnish the cars to the plaintiffs. The court held that defendant’s answer did not meet the issue nor set out facts which would constitute a defense to the plaintiffs’ alleged cause of action for the reason that the answer indicated that the car shortage was known to the carriers at the time of the plaintiffs ’ demand for such cars, and made no claim that the cattle company was notified that conditions were such as to make it impossible for the carrier to furnish cars at the time and place designated. This was on the principle that “where, without fault on its part, a carrier is unable to perform a service due and demanded, it must promptly notify the shipper of its inability, otherwise the reception of goods without such notice will estop the carrier from setting up what would otherwise have been a sufficient excuse for refusing to accept the goods or for delay in shipment after they had been received.” The court said, however, that “if such notice had then been given to the shipper, or promptly upon subsequent discovery, that the defendants would be unable to supply the cars, a different question would have arisen.”

In the present case, it is obvious there was no duty on the part of the defendant to notify the shipper of team track conditions in Chicago when the shipments were originally made, for at that time the cars were not consigned to Chicago. When they were diverted or reconsigned in transit, the specified destination was “Chicago, Illinois,” and not the team track at Grand Avenue, or any other team track. In the absence of any suggestion in the diversion orders that the shipper desired or intended the shipments to be delivered to the plaintiffs at the Grand Avenue team track only, defendant could not reasonably be expected or required to notify the shipper of the congested condition of that track, or of the embargo, especially in view of the fact that so many other tracks in Chicago were available that were not congested. The mere fact that the shipper’s instructions at that time were to “advise Coyne Brothers ’ ’ cannot be construed to mean that the cars were to be delivered to any particular team track, even though it had been customary theretofore for the Northwestern Railway Company to deliver cars of potatoes to the plaintiffs at Grand Avenue. Such a custom, even while it was followed, gave plaintiffs no rights superior to those of other consignees to have their cars delivered at that point. But in any event, the custom, if any, was ended "by the embargo, and the evidence shows, without dispute, that before any diversion or reconsigning orders were given, plaintiffs were in fact notified of the embargo, and of the consequences of the embargo and congestion at Grand Avenue. This notice to plaintiffs was supplemented by the express warning given to them by the agent at Fortieth Street. Under these circumstances there is no room for plaintiffs’ contention, and defendant’s contention must prevail.

Having arrived at this conclusion, it will not be necessary to notice the other contentions of appellant. No other ground of liability is shown or claimed, and, therefore, for the reasons stated, the judgment is reversed with a finding of facts.

Reversed with a finding of facts.

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

Finding of facts to be incorporated in the judgment. The court finds that defendant is not guilty of the negligence charged in the declaration, and that loss sustained by the plaintiffs on account of delays in delivering the shipments in question was due to the acts of the plaintiffs.


author: Mr. Justice Jones

text:
    Nellie Wilson, Plaintiff in Error, v. Harry A. V. Josephson, Defendant in Error.
    Gen. No. 7,624.
    1. Confession of judgments — power of cleric to enter. Judgments by confession can be entered by the clerk in vacation only; during term time they must be entered in open court.
    2. Confession of judgments — when cleric not authorized to enter during adjournment. A judicial day is a unit, and the court is not in vacation during the period intervening between the hour of its adjournment on one day and the hour of its convening on the next, so as to permit the clerk to enter judgment by confession during such interval.

      3. Courts — when acts of party do not confer jurisdiction of subject matter. The defendant’s right to raise the question of the court’s want of jurisdiction of the subject matter is not waived by the fact that he moved to vacate the judgment, called and examined witnesses and resisted a motion to amend the clerk’s record.
    Error by plaintiff to the Circuit Court of Warren county; the Hon. Waites C. Frank, Judge, presiding.
    Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed May 17, 1927.
    Lauder & Lauder, for plaintiff in error; Louis H. Hanna, of counsel.
    Hanley & Cox and Grier, Safford & Soule, for defendant in error.
   Mr. Justice Jones

delivered the opinion of the court.

This cause is here on writ of error to the circuit court of Warren county. Plaintiff in error, Nellie Wilson, seeks to reverse an order setting aside a judgment by confession and quashing an execution. The note and warrant of attorney upon which the judgment was entered was given by Josephson to plaintiff in error January 21, 1925. The circuit court was in session during the morning of January 26th, and adjourned at 11.30 o’clock of that day until 9.00 o’clock on the next morning. The judgment was entered by the clerk and execution was issued and placed in the hands of the sheriff on January 26th after the adjournment of court.

Josephson had executed a chattel mortgage on certain property to his brother and sister-in-law dated October 25, 1922. On January 21, 1925, he gave another chattel mortgage on some corn to his father. Both mortgages were acknowledged before a justice of the peace and duly recorded. The justice of the peace who took the acknowledgment did not reside in the same township as the mortgagor, so, on January 31, 1925, after the judgment in question was entered, the mortgages were reacknowledged before the county judge and again recorded. Defendant in error also gave a mortgage to his father on other chattels, dated January 31, 1925, which was acknowledged before the county judge and recorded the same day. Thereupon an agent of the mortgagees took possession of the property and posted notices of sale. The sheriff, by virtue of the execution, levied on a part of the property on February 2nd, and posted notices of sale. On February 3rd, defendant in error filed his special appearance and moved to vacate the judgment and to quash the execution. At the hearing plaintiff in error filed her cross motion to amend the clerk’s record. Defendant in error entered his appearance to resist the motion which was subsequently withdrawn.

The principal question for determination is whether the judgment was entered in term time or in vacation. If the period between the adjournment of court on one day and the hour of the next day to which court was adjourned, is to be considered as “vacation,” the clerk" was authorized under the law to enter the judgment, but if the period is to be considered “in term time” he had no authority to do it. It is unquestionably the rule that judgments by confession can be entered by the clerk only in vacation. During term time they must be entered in open court. Conkling v. Nicholas H. Ridgely & Co., 112 Ill. 36. The common-law definition of the term “vacation” was “all the time between the end of one term and the beginning of another.” 6 Jacobs’ Law Dict. 323. Before the passage of the Practice Act of 1872, judgments by confession could only be entered in open court in term time. In Conkling v. Nicholas H. Ridgely & Co., supra, that act was held to be remedial, and the court sustained a judgment by confession entered by the clerk during an interval adjournment of the term for 32 days as being in vacation, but added that: “We would not be understood as holding that under this act, vacation means all the time the court is not in actual session, or that it embraces the time of adjournment from day to day.” This view was again expressed in Field v. Ridgely, 116 Ill. 424, which case involved the same judgment. In Coe v. Hallam, 173 Ill. 461, the court referred to those two cases and said: “The adjournment in those cases was for thirty-two days and in this case it was for sixteen days, but the interpretation of the statute in those cases was that vacation includes any recess during the adjournments of the court not embracing the time between adjournments from day to day. The law ordinarily takes no account of fractions of a day, unless it is necessary for the determination of substantial rights. A day is a unit and one day lasts until another begins, so that if the court is in session on successive days it is term time, without any interval between; but when an adjournment is ordered over a period of time including a judicial day on which the business of the court and clerk might be transacted and judgments entered, there can be no distinction, in reason, between one day and sixteen or thirty-two.”

In First Nat. Bank of Ottawa v. Daly, 34 Ill. App. 173, the adjournment was from Thursday forenoon until the following Monday. Judgments by confession were entered by the clerk in the interim. This court in quoting the language of the opinion in Conkling v. Ridgely, supra, says, “We do not understand by the above language the court means to say that it would not be vacation where a judicial day or days intervene between the adjournment and the day fixed for convening the court. It is only the fractional days of vacation where the court adjourns from day to day that is meant, and possibly nonjudicial days.” In Unbehahn v. Fader, 319 111. 250, Coe v. Hallam, supra, is approved and cited as holding that the term “vacation” is not limited to the intervals between terms of court but includes any recess of the court extending over a judicial day. In Schmieg v. Burkhardt, 215 Ill. App. 240, the court said it is not inclined to hold that, where the record discloses that the court was in session on a certain day, any vacation of the court existed on that day giving the right to the clerk to enter a judgment. Under the decisions it has been declared to be the rule that a judicial day is a unit and that the court is not in vacation between the interval adjournment on one day and the convening of court on the next.

It is further contended that defendant in error by filing his motion to vacate the judgment, calling and examining witnesses and in resisting the motion to amend the clerk’s record, waived all jurisdictional defects. If it be conceded that these acts of defendant in error constituted a waiver of jurisdiction as to his person, it cannot be said that they operated as a waiver of jurisdiction as to the subject matter, which is conferred by law and cannot be waived.

Counsel for plaintiff in error contend that courts should take notice of fractions of a day where substantial rights are involved. Under the circumstances, we do not feel justified in applying the exception to the general rule as above laid down. The circuit court properly set aside the judgment and quashed the execution.

Judgment affirmed.


text:
    Albert Jentink, Appellee, v. County of Lake, Illinois, et al., Appellants.
    Gen. No. 7,686.
    1. Counties — no powers inherent in. A municipality or quasi-municipality such as a county board, created by legislative enactment to better accomplish local government, derives its existence and all its powers from the legislature and has no inherent power.
    2. Counties — what are limits to hoard’s powers. A county board of supervisors can exercise only such powers as are given by law, or arise by necessary implication, or are indispensable to carry into effect the object of their creation.

      3. Counties — what patients may not he admitted to hospitals of. Cahill’s St. 1925, ch. 34, ¶24, providing for a county hospital, and eh. 107, If 29, providing the county board may receive gifts to aid in maintaining the poor house or poor persons, and ch. 107, V 29, providing for appointment of a county physician, do not impliedly confer power on the county board to admit to the hospital patients who pay for their treatment.
    4. Counties — what patients may he admitted, to hospitals of. The county board may admit to the county hospital patients who are not paupers but who at the time have insufficient money or property to pay for hospital treatment.
    5. Counties — implied power of hoard as to emergency hospital cases. The purpose of a statute providing for county hospitals is essentially humanitarian and therefore the power to take care of emergency cases therein is to be implied from the statute.
    6. Statutes — rules of construction. The purpose of construing a statute is to ascertain the legislative intent and to give effect to that if not violative of the constitution, and to so construe the statute, if it is susceptible of more than one construction, as to carry out the legislative purpose.
    7. Counties — nature of duty as to emergency hospital oases. The police power of the State is the law of necessity, extending to all great public needs, and the moral duty of a county to care for emergency cases in the county hospital is closely related thereto.
    8. Injunction — when granted to restrain use of hospital. Courts of chancery will interfere to restrain a county board or county physician from using a county hospital for pay patients, a purpose not warranted by law.
    9. Appeal and error — when admission of incompetent evidence in chancery case not ground for reversal. The admission of incompetent evidence on a chancery hearing is not ground for reversal if there is sufficient competent evidence in the record to sustain the decree.
    10. Costs — discretion of chancery in awarding. Under Cahill’s St. eh. 33, 1f 18, providing the court may award costs at discretion, except the bill is dismissed, the chancery court’s refusal to tax all costs against defendants in a ease wherein decree was mainly for complainant will not be reversed as an abuse of discretion.
    11. Appeal and error — when improper provision of decree not ground for reversal. A decree awarding an injunction which is substantially correct in all particulars will not be reversed merely because of its provision that injunction shall not issue until final judgment is entered upon review.
    Appeal by defendants from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding.
    Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed June 2, 1927.

      Ashbel V. Smith, State’s Attorney, Sidney H. Block, Assistant State’s Attorney, and Max Przyborski, for appellants.
    E. V. Orvis, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.

Albert Jentink, a resident and taxpayer of Lake county, filed his bill in the circuit court of that county against the County of Lake, its board of supervisors and Charles Lieber, alleging that the county, for more than 20 years, has maintained a county hospital for the care of such sick as might by law be proper charges upon the county and that in addition, the county, through its board of supervisors, has for several years been carrying on in said hospital a general hospital business for money, and a general hospital to which the public has access for care and treatment, for which the county is and has been accepting revenue. It is also charged that Dr. Charles Lieber has charge of the hospital under contract with the board of supervisors and is known as “county physician”; that he is engaged in the general practice of medicine and surgery and that his private patients are received, treated and cared for at the hospital for pay to him personally and that he does not account to the county for such receipts. The bill prays for an injunction restraining the county, the board of supervisors and Dr. Lieber from receiving any patient in the hospital for pay, and that Dr. Lieber be enjoined from receiving any pay from any patient in the hospital. It is admitted in the answers to the bill that persons able to pay are treated in the hospital and that charges are made for such treatment in whole or in part as the financial circumstances of the patient or his relatives warrant. This practice is sought to be justified on the ground that all money so received by the county is devoted exclusively to the care, maintenance and operation of the hospital and for the care and treatment of all sick persons therein, irrespective of their financial condition, and for better facilities and appliances. Dr. Lieber’s answer denies receiving any compensation personally from pay patients.

The chancellor found by the decree that four classes of patients are admitted to the hospital: (a) Those without means or relatives liable or able to contribute for their treatment and admitted by approval of the supervisor of the particular township where they reside; (b) those able to pay in part or who wish to pay for treatment out of future earnings and who are admitted by the approval of their supervisors for treatment and who are without relatives liable for their support; (c) emergency cases arising from sudden illness or accident without regard to financial standing and admitted by the superintendent of the hospital; and (d) patients able to pay for their treatment and admitted upon application to the superintendent; that this class is treated by the county physician or any doctor they may designate; that 69 per cent of the patients treated do not pay anything and 31 per cent pay in whole or in part for their treatment; that appellants have exceeded their authority in receiving and treating patients of class (d); and that the charges made to class (d) patients are reasonable and not less than the cost per hospital day for operating the hospital, and that patients of that class have never been admitted in sufficient number to prevent treatment of the other three classes.

The decree enjoins the county, the board of supervisors and Dr. Lieber from accepting as patients in the hospital and rendering surgical or medical treatment to them, any patients who are amply able to pay for such treatment as covered by class (d). It provides that patients of class (a) may be admitted as heretofore, upon application to and approval of the supervisor of their township; that class (b) patients may be admitted upon application to and approval of their township supervisor; that emergency cases may be admitted by the superintendent of the hospital, without approval of any supervisor, to receive treatment either from the county physician or any other physician, and pay said physician for treatment and pay the county for the hospital care and treatment; that the county or the hospital may receive donations from any and all persons for treatment rendered at former times in the hospital, either paying in whole or in part, and that donations from other institutions, societies or individuals may be received for the support of the hospital; and that none of the provisions of the decree shall apply to patients suffering with contagious diseases.

The parties to both sides of this controversy have appealed to this court. The original defendants claim that they are operating the hospital pursuant to the statute and receive every person who is sick and a proper county charge; that when there are vacant beds, patients who are able to pay in part or in whole are admitted and treated, the compensation received from them being applied to the use of the hospital, bettering conditions therein and enabling the county in a more fitting manner to take care of such sick as are county charges; that this does not amount to conducting a hospital for revenue; and that the decree is a judicial interference with the operation of the hospital and not warranted by law.

The original complainant, Jentink, contends that the court erred in not granting the injunction as prayed for in the bill of complaint, prohibiting the defendants from charging any patients and from accepting any patients or emergency cases, who are able to pay in whole or in part.

The statute in enumerating the powers of counties (Cahill’s St. 1925, ch. 34, ¶24, subd. 7) provides that each county shall have power ‘ To cause to be erected, or otherwise provided, suitable buildings for, and maintain a county hospital and necessary branch hospitals for the care of such sick as may by law be proper charges upon the county, and to provide for the management of the same.” Paragraph 2 of section 29 of the Pauper’s Act (Cahill’s St. 1925, ch. 107, ¶ 29, subd. 2) provides that the county board shall have power “To receive in the name of the county gifts, devises and bequests to aid in the erection or maintenance of the poor house, or in the care and support of poor and indigent persons.” Paragraph 5, Cahill’s St. ch. 107, ¶ 29, subd. 5, of the same section grants the power ‘' To appoint a county physician and prescribe his compensation and duties.”

Counties, townships, school districts, cities, villages and other municipal and quasi-municipal corporations are created under the authority of the legislature, to better accomplish the purposes of local government. These municipalities derive their existence and all their powers from the legislature which created them. There is therefore no such thing as an inherent power in any municipality which is created by legislative enactment. (City of Chicago v. M. & M. Hotel Co., 248 Ill. 264.) The rule is well settled that a county board can exercise only such powers as are given by law or such as arise by necessary implication or are indispensable to carry into effect the object and purpose of their creation. (Marsh v. People, 226 Ill. 464; County of Cook v. Gilbert, 146 Ill. 268.) The power to maintain a hospital for the care of such sick as may by law be proper charges upon the county cannot be held to include by necessary implication the power to operate a hospital for the treatment of patients described in class (d); nor can it be said that the power to treat patients in class (d) is indispensable to the object and purpose of the legislature in authorizing the maintenance of hospitals for public charges. The chancellor was right in enjoining the admittance and treatment of such patients.

We are also of the opinion that there was no error in providing that class (b) patients may be admitted to the hospital and treated as set out in the decree. The possession of some property does not always preclude one from a just claim upon the county for relief. (Eshelman v. County of Clinton, 88 Ill. App. 566; Town of Big Grove v. Town of Fax, 89 Ill. App. 84; Rock Island County v. Arp, 118 Ill. App. 521; County of La Salle v. Hatheway, 78 Ill. App. 95.) Persons, not paupers within the meaning of the statute, but having at the time insufficient money or property to pay for medical services, are entitled to county aid. (City of Chester v. County of Randolph, 112 Ill. App. 510.)

The chancellor did not err in reference to the admission and treatment of emergency cases. The purpose of the statute providing for the establishment and the maintenance of a hospital such as the one in question is essentially humanitarian, and for that reason alone the power to take care of emergency cases is embraced within its terms by necessary implication. It is a familiar rule of statutory construction that the purpose of construing a statute is to ascertain the legislative intent and when the intent is ascertained to give it effect if not in violation of the constitution, and when the statute is susceptible of more than one construction the court will give such construction as will effectuate the legislative purpose rather than one that will defeat it. (Yeadon v. Clark, 276 Ill. 424.) In a. sense every man, regardless of his financial standing, when suddenly taken sick or injured is a public charge, at least for the time being. It is a common instinct and duty to render immediate assistance in such cases, and it is no less a collective obligation extending to. organized society than it is an individual duty. If there is any difference in the measure of the duty of the public and that of individuals, the obligation resting upon society is stronger than that of the individual. The duty of an individual to relieve distress is of a moral nature only. That imposed upon society is more nearly a legal obligation by reason of the fact that the purpose to promote the interests and advance the general welfare of the people is expressly declared in constitutions and legislative enactments. If not within the strict letter of the law, the acceptance and treatment of emergency cases is clearly within its spirit. As to such cases the situation is closely akin to the doctrine that the rights of necessity are recognized as a part of the law, necessitas vincit legem, and may be said to be its corollary. The doctrine is often applied in construing the exercise of the police power of the State, which has been described as the law of necessity, and for ages has been a ruling principle of jurisprudence. It extends to all great public needs. (6 R. C. L. Const. L. § 1187.) An impending necessity will often justify and make lawful an act which would otherwise be actionable. The principle is particularly applicable to acts done for the public safety, such as injury to, or destruction of, private property in order to prevent the spread of fire, or disease, or to prevent other public calamity. If such an extreme measure as the destruction of private property may be resorted to in an emergency to prevent the spread of fire, or disease, can the right to use public property, especially devoted to a charitable purpose, for the emergency relief of suffering and the saving of human life be seriously controverted? We think not.

We believe the facts present grounds for equitable intervention against the defendants; but it is urged’ that the injunction should not have been extended against the defendant Lieber. The complainant testified he knew that several property owners who are amply able to pay for their treatment had been admitted to the hospital. Such patients paid the county for the hospital charges and some of them paid Dr, Lieber for Ms professional services. TMs, the doctor did not deny in his testimony and in view of these facts it was proper to extend the decree against him. Courts of chancery will interfere to restrain authorities from a misuse of the fund intrusted to them or its appropriation to a purpose not warranted by law. (Adams v. Brenan, 177 Ill. 194 and'cases cited.)

Cross errors have been assigned and it is urged that the court admitted evidence and based some of its findings upon matter in the answer which had been eliminated by sustained exceptions. It is well settled in chancery practice that the admission of incompetent evidence on the hearing is not ground for reversal, provided there is sufficient competent evidence in the record to sustain the decree, because the chancellor is presumed to have disregarded all evidence in the case except that which was competent and relative to the issues. (Miller v. Gordon, 296 Ill. 346; Mix v. People, 116 Ill. 265.)

It is also urged that the trial court erred in not taxing the costs against the defendants. It is provided by the Costs Act (Cahill’s St. 1925, ch. 33, ¶18) that on the dismissal of a bill the defendant shall recover costs, but in all other cases in chancery not otherwise dirécted by law, it shall be in the discretion of the court to award costs or not. The award of costs in a court of chancery is a matter of discretion with the court and that discretion will not be reviewed except for abuse. (Ashew v. Springer, 111 Ill. 662; Schroeder v. Smith, 249 Ill. 574.) We cannot say that the chancellor abused his discretion. It would serve no good purpose to reverse the decree because of the provision that no injunction shall issue until a final judgment is entered upon review. The decree is correct in all substantial particulars and is accordingly affirmed.

Decree affirmed.


author: Mr. Justice Shurtleff

text:
    James H. Butler, Appellee, v. Security Insurance Company of New Haven, Connecticut, Appellant.
    Gen. No. 8,038.
    1. Insurance — measure of value of replacement cost. In an action on a fire insurance policy it was error for the court to instruct that the measure of value of the goods destroyed was their market value at their location or, in ease that could not be shown, their wholesale price plus enough to make the selling price of insured, instead of instructing that, under the policy provision against loss of no more than replacement cost to insured, the value could not exceed wholesale or manufacturer’s price plus transportation and handling.
    2. Insurance — jury finding of excessive value for goods burned as reversible. A finding by the jury in an action on a fire insurance policy of greatly excessive values for goods lost constitutes reversible error.
    3. Insurance — insufficiency of evidence to support finding that mortgage not in effect. In an action on a fire insurance policy which contains a clause avoiding the policy if the insured goods are or shall be incumbered by a chattel mortgage, where the pleadings establish the existence of a debt and the giving and recording of a chattel mortgage on the goods and that the debt did not become due until after the fire and there is evidence of statements by the mortgagor and mortgagee, made after the loss, that the mortgage was still in effect, in addition to other evidence of like import, a special finding that the mortgage was not in force at the time of the fire is against the weight of the evidence.
    4. Insurance — applicability of incumbrance clause as affected by part payment of incumbrance. In an action on a fire insurance policy exempting the insurer in case a mortgage is placed on the property, it is error to refuse an instruction that where a portion of the note secured by a chattel mortgage on the property is paid, and a new note executed for the amount remaining unpaid, the lien of the mortgage is not thereby destroyed unless the parties so intended.
    5. Insurance — burden of proving release of mortgage placed on insured property m violation of incumbrance clause. The court erroneously refused an instruction, in an action on a fire insurance policy providing the policy shall be avoided for placing a mortgage on the property, that the burden of proof was upon the insured to establish payment or cancellation of a note and mortgage where the mortgage was shown to have been executed, delivered and duly recorded and the debt secured was shown to have been not due at the time of the fire.

      6. Insurance — breach of incumbrance clause avoiding the policy. A breach of the incumbrance clause of a fire insurance policy by the existence of a chattel at the time the policy is issued, or by placing a chattel mortgage thereon after its issuance, avoids the policy.
    Appeal by defendant from the Circuit Court of Morgan county; the Hon. Norman L. Jones, Judge, presiding.
    Heard in this court at the October term, 1926.
    Reversed with findings of fact.
    Opinion filed April 22, 1927.
    Rehearing denied June 24, 1927.
    H. P. Samuell and Acton, Acton & Snyder, for appellant.
    John J. Reeve and Hugh P. Green, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an action in assumpsit brought by appellee against the Security Insurance Company of New Haven, Connecticut, appellant, on a declaration of one count. The declaration sets out the policy in haec verba providing for insurance against direct loss or damage by fire, except as provided in said policy for the term of one year from the 23rd day of February, 1924, at noon, to an amount not exceeding $2,500 on the stock of merchandise and barber shop furniture and fixtures.

The policy was of the so-called standard form, and provided among other things that the company should not be liable beyond the actual cash value of the property at the time of any loss or damage, and the loss or damage to be ascertained or estimated according to said actual cash value, with proper deductions for depreciation, and should in no event exceed what it would then cost the insured to repair or replace the same with material of like kind or quality; that the policy should be void in case of any fraudulent or false swearing by the insured touching any matter relating to the insurance or the subject thereof, whether before or after a loss, and would be void if the subject of insurance be personal property and be or become incumbered by chattel mortgage; that the loss should not become payable until 60 days after said notice, ascertainment, estimate, and. satisfactory proofs of loss have been received by the company; that the company shall not be liable for any greater amount than the amount of this policy shall bear to the whole insurance on said property.

The declaration alleged that the plaintiff had an interest in the property to the amount of the insurance stipulated in said policy, and that such property was consumed and destroyed by fire on the 16th day of February, 1925; that notice was given the company on the 17th day of February, 1925, and proofs of loss were submitted on the 17th day of April, 1925, and that the appellee has kept and performed all things on his part to be kept and performed.

There was a demurrer to the declaration which was overruled, and appellant filed a plea of the general issue and various special pleas, the second plea setting out the giving of a chattel mortgage upon the property on February 26,1924, and the third plea averring that at the time the policy was issued there was in full force and effect a chattel mortgage on the property described to one Otto Speith for $500, which was given and executed February 26, 1923, and became due on February 26, 1924. The fourth plea averred other concurrent insurance and the fifth plea averred: That the proof of loss which was submitted showed that at the time the policy was issued no incumbrance of said property existed, nor has any since been made, except the mortgage given to Mrs. William Kintner for $1,500, and that because the proof of loss contained such a recital showing that the terms of the policy had been violated, the defendant had returned said proof of loss and denied liability under the chattel mortgage clause therein pleaded, and no other or further proof of loss has been submitted.

There was a sixth plea averring false swearing on the part of the insured, which was amended and upon which an issue was made, but we deem it unnecessary to go into the particulars of that issue. The court sustained a demurrer to the second, third, fifth and sixth pleas. The demurrer was sustained to the second and third pleas for the reason that the pleas did not allege that the chattel mortgage was in full force and effect and a lien on the property at the time of the loss complained of, and the demurrer was sustained to the fifth plea on the ground that by returning the proof of loss and denying liability, appellant waived further proof of loss. An amended second plea was filed alleging that the mortgage of $1,500 to Louise Kintner, which was referred to in the original second plea, was a valid and subsisting lien at the time of the loss, and that said mortgage remained unreleased of record and that the note secured by said mortgage remained unpaid on the date of the loss.

Appellants joined issue on the first plea of the general issue, replied to the fourth plea that appellant was liable in an amount in excess of 24-61 of the loss sustained, and to the amended second plea appellee replied that the mortgage described was not a valid and subsisting lien on the property of appellee and that the note secured by said mortgage did not remain unpaid on said day. In substance, appellee pleaded payment or cancellation of said indebtedness' prior to the loss.

Issues were made on these replications and there was a verdict and judgment in appellee’s behalf in the sum of $2,049.17 and appellant has brought the record to this court for review.

Appellant assigns error upon the proofs presented, over appellant’s objection, tending to show the value of the goods destroyed or damaged, or appellee’s loss. The court ruled: “On the question of the value of these, if it has a market value here in Jacksonville, that is the value that should be proven. Where there is no Jacksonville market value and it has no market value, he can prove the value of the wholesale price.” Under this ruling appellee was permitted to testify to the value of the stock of goods from a list made up of prices from the manufacturers, from whom he purchased f. o. b., plus 40 per cent, which amounted to appellee’s selling price of the goods in Jacksonville. In other words, it constituted the wholesale price, plus appellee’s profit of 40 per cent. This was error. The policy provided that the loss in no event should exceed the cost to the insured to replace the same with material of like kind and equal quality. This in no event could exceed the wholesale or manufacturer’s price, plus transportation and handling. Standard Sewing Mach. Go. v. Royal Ins. Co., 201 Pa. 645, 51 Atl. 356. The court erred also for the same reason in not giving appellant’s instruction No. 27 upon that subject.

There was an issue of fact submitted to the jury upon which there was a special finding, determining that the chattel mortgage from appellee to Louise Kintner was not in full force and effect at the time of the fire complained of in the declaration. We have examined all of the testimony and the court’s instructions to the jury upon this issue. The court instructed the jury on behalf of appellant that if they found from a preponderance of the evidence that such mortgage was made and remained a lien on the property at the time of the loss complained of, then such mortgage was a complete defense of appellee’s cause of action. However, three instructions were given for appellee upon this issue, placing the burden of proof upon appellant to establish the chattel mortgage lien, appellee’s third instruction closing as follows: “Yet if the defendant has failed to show by the preponderanee of all of the evidence in this case that the note secured by said chattel mortgage was not paid at the time of the loss complained of, to-wit, on the 16th day of February, A. D. 1925, then, on that issue, you should find in favor of the plaintiff.”

The pleadings established the existence of the indebtedness and mortgage and the recording of the same. The mortgage debt was not due until February 26, 1925. Just how under any ordinary circumstances appellant could, by a preponderance of evidence, establish the negative of a patent fact is hard to comprehend. The execution of the chattel mortgage, its recording and the fact that it had not been released of record were admitted by appellee. Appellee, in his proof of loss, recited: “No encumbrance on said property existed or has since been made, * * * except a chattel mortgage given to Mrs. William Kintner for $1,500.00 to use as additional capital in the business.” Nothing was said as to the release of this mortgage, although appellee employed a professional loss adjuster to make out his proofs of loss. Appellee lived in the same home with the mortgagee, Louise M. Kintner, and appellee testified that he paid the mortgage $500 by cash and check, the larger part by check, on November 26, 1924. He says he gave Mrs. Kintner his personal note on November 26, 1924, for $1,000, and that Mrs. Kintner gave him the note and mortgage; that she did not release the mortgage of record in writing, but said she did not want to hold the mortgage. The indorsement upon the $1,500 note is peculiar, being marked: “Int. Pdd. Nov. 26th, 1500 Pd. Nov. 26, 1924 Louise M. Kintner.” Appellant testified that the check given Mrs. Kintner November 26, 1924, for the larger part of the $500 was drawn upon the Elliott Bank. His account in that bank was examined and on November 26, 1924, appellee’s checking balance was only $125, and from then until into January the largest check given by appellee was $96.15, and the balance of appellee’s checking account ranged from $28.45 to $130'. Appellee’s canceled checks, including the one claimed to have been given to Mrs. Kintner, were, of course, destroyed by the fire.

In addition to this, according to the testimony of the witnesses, on February 20, 1925, four days after the fire, the appellee told James Wise, a deputy fire marshal of the State of Illinois, and who was in no way interested in this case, that such mortgage had not been paid. The same statement was made on March 17, 1925, to James A. Swisher, to Edward M. Muelhausen and to Oscar A. Morris. The last three witnesses 'were adjusters for different insurance companies having policies on this loss. Further, the mortgagee of the property told James Wise, the fire marshal, four days after the fire that she still held this chattel mortgage. A most unusual circumstance about such alleged payment was that the appellee did not call the mortgagee to corroborate his statement as to the discharge of the lien of such chattel mortgage. She was in Jacksonville and was produced in rebuttal to deny the statement testified to by Fire Marshal Wise, that at the time of his conversation with her four days after the fire she said she then held the chattel mortgage. She admitted having a conversation with the fire marshal but her testimony was limited to the denial of the statement that four days after, the fire she had said that she then had such chattel mortgage. She did not deny that at the time of the fire she was the holder of the chattel mortgage. The evidence showed that the appellee lived at Mrs. Kintner’s home, and it is indeed a strange situation that appellee did not offer her testimony in his case in chief to show the payment and discharge of such mortgage, and only called her after her admission in the presence of appellee had been testified to by a public official of the State of Illinois.

Appellee had submitted proofs of loss to his stock of goods, amounting to about $7,000. Various witnesses were produced by appellant whom appellee had solicited to- take an interest in his business during the preceding year, and to whom he had stated that his stock of goods would invoice from $1,600 to $2,000. One witness, H. E. Anthony, a son-in-law of the mortgagee, was produced, who testified that in 1924 appellee solicited him to put money in the business and stated that his stock of goods would invoice around $1,600. It is uncontradicted that on the Friday preceding the trial appellee accosted the witness Anthony upon the street and asked him if he had been subpoenaed as a witness, and appellee, when informed that he had, inquired of Anthony what he was going to testify to. Anthony replied, “I guess you know.” Whereupon, appellee stated to him: “I will tell you or any one else, that beats me out of that money, I will kill you.”

Appellee charged in his proofs of loss a four-chair, wooden mirror case that had been used in the shop for 35 years by various owners, a value of $1,495, the price of a marble top, new, up-to-date case, when the proofs show that the case, somewhat damaged, was never worth to exceed $400. The record is replete with proofs and testimony of other articles and merchandise listed and sworn to on a similar basis. The jury found that the total loss sustained by appellee was the sum of $5,000. This finding and the special finding as to the chattel mortgage, from a reading of the entire record, are so manifestly against the weight of the testimony that either finding constitutes reversible error in this case.

Appellant tendered an instruction to the effect that where a portion of a note secured by chattel mortgage is paid, and a new note executed for the amount remaining unpaid, the lien of the mortgage is not thereby destroyed unless such was the intention of the parties. ' The court refused the instruction. This was error. Keelin v. Postlewait Co., 259 Ill. 135.

Appellant offered an instruction as to the burden of proof being upon appellee to establish the payment or cancellation of a note and mortgage shown to have been executed, delivered and properly recorded, and the debt not due, which instruction was refused. This was error. Home Fire Ins. Co. v. Johansen, 59 Neb. 349, 80 N. W. 1047. Appellee seeks to avoid this assignment of error and support the judgment on the ground that those rules apply only where the action is between the parties to the instrument. We know of no principle upon which any different rule should apply in this case. The precise question in this case is the exact relationship existing between mortgagor and mortgagee, between debtor and creditor, and that relationship should be determined by the same rules of evidence as though mortgagor and mortgagee were the parties litigant in this case.

The more serious question in this record is the existence of a chattel mortgage upon the insured’s property at the time the policy was issued, and the giving of another mortgage after the policy had been issued, regardless of whether it had been canceled at the time of loss. The policy provides that, “This entire policy shall be void * * * if the subject of insurance be personal property, and be or become encumbered by a chattel mortgage.”

Appellee seeks to sustain the judgment on the ground that the policy of insurance is only suspended during the pendency of the lien, in line with the principle laid down in Traders’ Ins. Co. v. Catlin, 163 Ill. 256, where the question arose upon the terms of a policy, declaring it void in case of increased hazard and risk. The court in this case, after reciting numerous cases in our Illinois courts and construing them, said: “These decisions, whilst in conflict with the courts of New York and some other States, have so long been the rule in this State that we are not disposed to qualify or in any manner depart from the rule announced therein. That rule is: though there be a change of risk by reason of an increased hazard, which would avoid the policy if declared forfeited by the company, yet where the company has not declared the policy forfeited and the cause for the increased hazard no longer exists, and there is no increased hazard by reason of former changed conditions, then, the policy being for insurance for a certain period, the contract of insurance will be construed, and the fact determined whether there was an increased risk at the time of the fire which in any manner was conducive to the loss. If a loss occurs during the increased hazard a recovery will be defeated. If a former increase of hazard has ceased to exist, and that increase of hazard at that former time in no way has affected the risk when the loss occurs, no reason exists why a forfeiture should result from a cause which occasions no damage.”

However, under all of the decisions in this State as to the provisions of the policy, in the case at bar we do not consider it an open question. (Reaper City Ins. Co. v. Brennan, 58 Ill. 158; Hebner v. Palatine Ins. Co., 157 Ill. 144; Crikelair v. Citizens’ Ins. Co., 168 Ill. 309; Capps v. National Union Fire Ins. Co., 318 Ill. 353.) In Crikelair v. Citizens’ Ins. Co., supra, the facts were identical to those in the case at bar, except in the Crikelair case no attempt was made to establish a cancellation of the mortgage. In that case the court held :

“By the stipulation in the policy, the terms of which are plain, direct and unambiguous, the parties hereto agreed that if the insured property, at the time the insurance was effected, was encumbered by chattel mortgage, the indemnity should not attach but the policy should be void. This was the contract of the parties deliberately made, and the only question presented is, whether they are bound by it. They were competent to enter into the stipulation, no rulé of law was contravened by it, and there is no ground apparent to us upon which to base a claim of either estoppel or waiver.
“The law declared by the greater weight of authority is, that where a policy contains a stipulation such as the one in the case at bar, and the property be, at the time of the execution of the policy, covered by a mortgage, no recovery can be had unless it appears that there was a waiver or estoppel by which the company is precluded from relying on the contract. It was so expressly ruled in Wilcox v. Continental Ins. Co. 55 N. W. Rep. 188, Wierengo v. American Fire Ins. Co. 57 id. 833, Smith v. Columbia Ins. Co. 17 Pa. St. 253, Pennsylvania Ins. Co. v. Gottsman, 48 id. 151, and Fitchburg Bank v. Amazon Ins. Co. 125 Mass. 431. The principle upon which these decisions rest was recognized and applied by this court in Reader City Ins. Co. v. Brennan, 58 Ill. 158, and Hebner v. Palatine Ins. Co. 157 id. 144.”

Appellee’s only answer to the Crikelair case is, that “a reading of it fails to show that the questions presented in the case at bar, by way_ of special demurrers, were presented to the court in that case and that such a case is no guide for the court under the pleadings in this case.” This same principle and the Crikelair case were affirmed in Capps v. National Union Fire Ins. Co., supra, where the court, on page 353, held: “It is also settled that conditions in a policy of fire insurance rendering the policy void if the interest of the insured be other than unconditional and sole ownership or if the subject of insurance be a building on ground not owned by the insured in fee simple are reasonable and valid, and that a breach of such conditions, or either of them, is a bar to a recovery under the policy in the absence of a waiver of the condition or an estoppel which precludes the company from making its defense. (Crikelair v. Citizens’ Ins. Co. 168 Ill. 309; Hebner v. Palatine Ins. Co. 157 id. 144; Reaper City Ins. Co. v. Brennan, 58 id. 158.). Unless he has been misled by some act of the insurer, it is generally held that a person who accepts and retains the possession of an insurance policy is bound to know its contents. Crikelair v. Citizens’ Ins. Co. supra; In re Millers’ and Manufacturers’ Ins. Co. 97 Minn. 98, 106 N. W. 485; Wierengo v. American Fire Ins. Co. 98 Mich. 621, 57 N. W. 833; Bostwick v. Mutual Life Ins. Co. 116 Wis. 392, 67 L. R. A. 705.”

The court has taken an entirely different attitude in the construction of provisions in a policy affecting ownership of property which would have the effect of leading directly to speculation and pure gambling, from that adopted towards the property actually owned by the insured, around which the hazard and risk are continually changing in degree caused somewhat by the elements and the natural shifting in human affairs.

In view of these decisions and the principles laid down, we feel constrained to hold that by reason of the chattel mortgage existing against appellee’s property at the time the policy was issued, and the additional mortgage given to Mrs. Kintner thereafter, appellant never became liable upon the policy in question, and the court should, at the close of appellee’s case, have instructed the jury to find a verdict for appellant as requested by appellant. There is nothing in the confusion of pleadings that can change the result. As the court said in the Capps case:

“All matters of defense of want of title in the insured set up in the special pleas were tried under the general issue. Since the parties have tried the case on the theory that all evidence supporting the defense of want of title was properly admissible under the general issue and present the case here on the same theory we shall so consider it. There being no objection in the trial court or assignment of cross-error in this court questioning the admissibility of this evidence under the issue as formed we do not consider the question.”

The fact that the mortgages were given and were in existence was before the court and the jury, and were competent under the general issue.

Other errors in this record are pointed out, a consideration of which we do not deem essential to a decision of the case. In the view that this court takes of a law applicable to the provisions of the policy in question, no useful purpose would be served by a remandment of this case.

The judgment, therefore, of the circuit court of Morgan county is reversed.

Reversed with findings of fact.

Findings of fact to be incorporated in the judgment of reversal: We find that at the time the appellee took out the policy of insurance in question the property insured was incumbered by a chattel mortgage, and after the issuance of the policy to him he again incumbered the property by another chattel mortgage, which avoided the policy.