author: Mr. Justice Debts E. Sulliyab Hebel, P. J.,

text:
    John G. Eeingenburg, Appellee, v. Lincoln-Lansing Drainage District et al., Defendants. Appeal of Lincoln-Lansing Drainage District, Appellant.
    Gen. No. 41,499.
    Burke, J., dissenting.
    Opinion filed April 23, 1941.
    Rehearing denied May 15, 1941.
    Egbert E. Downs, of Chicago, for appellant; Edward T. Howe, of Chicago, of counsel.
    Simoh T. Suttoh, P. J. McCarthy and Chester D. Kerb", all of Chicago, for appellee.
   Mr. Justice Debts E. Sulliyab

delivered the opinion of the court.

This is an appeal from a judgment for $3,500, entered in the superior court against the Lincoln-Lansing Drainage District, a body politic and corporate, upon the verdict of a jury. The original suit was brought against Lincoln-Lansing Drainage District, as a body politic and corporate and Peter Bultema, Ben Bniter and Otto F. Kalvelage, who were commissioners for the district, to recover damages alleged to have been sustained to plaintiff’s crops when his land was overflowed, as a result of defective drainage. The jury returned a verdict against the Drainage District, assessed damages at $3,500, but rendered no verdict as to the three commissioners, the other defendants. It is from the judgment against the Lincoln-Lansing Drainage District that this appeal is brought.

On page 2 of appellant’s brief, this statement is made:

“The defendant took this appeal from the judgment and from the order overruling motions for new trial. Motion for Judgment Notwithstanding Verdict and Motion in Arrest of Judgment. Since the defendant raises no issue of fact in this appeal a report of proceedings was not filed.”

In its assignment of errors, defendant states the following:

1. That the court erred in overruling defendant’s motion for judgment notwithstanding the verdict.
2. The court erred in overruling defendant’s motion to set aside the verdict and for a new trial.
3. The court erred in entering judgment against the defendant.
4. The court erred in overruling defendant’s motion in arrest of judgment.

Plaintiff points out in his brief that the defendant-appellant has filed no report of the proceedings or certificate of evidence or a certificate of the trial judge stating that what is now set forth as an abstract of record is correct. Consequently, we have no way of knowing what took place at the trial.

The principal contention of defendant-appellant, so far as we have been able to gather, is that even though the acts of the defendant did cause the damage alleged by plaintiff, there could be no recovery. Bight to sue a drainage district for damages caused By it, has been passed upon many times by courts of this state.

In Bradbury v. Vandalia Levee & Drainage District, 236 Ill. 36, the court after discussing the Elmore case, said: “The court held that the drainage district was not a private corporation, formed by voluntary agreement for private purposes, which was undoubtedly correct. It was also said that while drainage districts had been classed as municipal corporations in Commissioners of Drainage District v. Kelsey, 120 Ill. 482, and other cases, there were substantial grounds of distinction, and that they were to be regarded as mere public involuntary quasi corporations, and therefore not liable to respond in damages to an individual injured by the negligent or wrongful act of their officers, agents or servants. That doctrine was repeated in Heffner v. Cass and Morgan Counties, 193 Ill. 439, but it is quite evident that it needs some revision or limitation. The ground of distinction between corporations which are liable for the negligent or wrongful act of their agents or servants and those which are not, is, that public involuntary quasi corporations are mere political or civil divisions of the State created by general laws to aid in the general administration of the government and are not so liable, while those which are liable have privileges conferred upon them at their request, which are a consideration for the duties imposed upon them. (Kinnare v. City of Chicago, 171 Ill. 332.) Neither the State, nor any part of it, is divided by the legislature into drainage districts, nor do they have public duties thrust upon them without their consent. The organization of a drainage district is for the sole and exclusive benefit of the territory within the district, (Commissioners of Union Drainage District v. Highway Comrs. 220 Ill. 176,) and the lands within the district are assessed to pay the whole costs on the theory that they alone are benefited. A drainage district can only be organized, upon the petition of a majority of the owners of lands within the proposed district who shall have arrived at lawful age and who represent one-third of the area of the lands to be reclaimed or benefited, and the organization is not different, in principle, from the organization of cities, villages or towns under a general law, on a petition of a certain proportion of the legal voters within the territory. It is correct to say that a drainage district is a quasi corporation if the act under which it is organized does not make it a corporation in fact, but it is not created for political purposes or for the administration of civil government.”

“So far as appears, this district, with its scheme for a levee, was organized for the purpose of improving the lands within the district for agricultural purposes, which is not an exercise of the police power, and it was organized upon the petition of a majority of the owners of lands in the belief that they would be benefited by the organization. To deny to the plaintiffs a recovery of the damages which they have suffered by the effort of the owners of lands within the district, to benefit themselves would be against natural right and every sentiment of justice, and we find no sufficient reason for exempting the district from liability, whether the levee is regarded as a wrongful obstruction to the waters of the river or as a lawful one under the decree of the county court.”

In the case of Lindstrom v. City of Chicago, 331 Ill. 144, which involved a school district maintained by the city, a demurrer was sustained to the complaint and the cause dismissed. In dismissing the cause the court said at page 148:

“In People v. Board of Education, 255 Ill. 568, and Bradbury v. Vandalia Drainage District, 236 id. 36, the distinction between corporations liable for negligent or wrongful acts of their agents and those which are not is made clear. The latter, being public involuntary quasi corporations, which are mere political or civil divisions of the State created by general law to aid in the general administration of the government, are not so liable, while those which are liable are so liable because they have privileges conferred upon them at their request, which are a consideration for the duties imposed. To the same effect is Johnston v. City of Chicago, 258 Ill. 494.”

In Farrow v. Eldred Drainage & Levee District, 268 Ill. App. 432, plaintiff recovered a judgment against the Drainage District for damages in the sum of $3,000 for alleged injury to crops upon the real estate of the plaintiff located adjacent to a levee and drainage ditch constructed and maintained by the defendant. In affirming the judgment below the Third District Appellate Court said at page 447:

“It is also well settled that under the circumstances and conditions averred in the declaration, ‘ each overflow of the land of an adjoining owner caused by the negligent or improper construction of a railroad embankment is a fresh nuisance, and creates a new cause of action, and the railroad company is liable. ’ Chicago, P. & St. L. Ry. Co. v. Reuter, supra; Ohio & M. Ry. Co. v. Thillman, supra; Handfelder v. East Side Levee & Sanitary Dist., 194 Ill. App. 262; Sanitary District of Chicago v. Ray, 199 Ill. 63.

Atherton v. East Side Levee & Sanitary Dist., 211 Ill. App. 55; Drda v. Illinois Terminal R. Co., 210 Ill. App. 640. . . .

“It is also well settled that, ‘it is the duty of a drainage district to keep its own natural water courses open and free from obstruction, so none of the waters of the district will be forced upon the land of the adjoining district in times of flood.’ Bay Bottoms Drainage Dist. v. Cache River Drainage Dist., 295 Ill. 301; Bradbury v. Vandalia Levee & Drainage Dist., 236 Ill. 36.”

In Bates v. Drainage Commissioners, 273 Ill. App. 335, the complaint consisted of only one count claiming damages for the negligent burning and destroying of appellant’s property in the maintenance of a drainage ditch. The defendant filed a pleading of not guilty and the trial was had before a jury. At the close of plaintiff’s case the court on motion directed a verdict in favor of the Drainage District which was returned by the jury. A motion for a new trial was overruled and from a judgment against him in bar the plaintiff appealed. The Appellate Court in reversing the judgment and remanding the cause for a new trial held that as a Drainage District was not acting* in a ministerial capacity in maintaining the ditch, it was not immune from a claim for damages arising from the torts of its agents. The court at page 337, said:

“The controlling question of law raised is whether a drainage district organized under the Farm Drainage Act, Cahill’s. St. ch. 42, ¶ 120 et seq., can in the performance of its duties, negligently and wrongfully damage and destroy the property adjoining its right of way without liability for such damage. Appellant contends that because of the constitutional provision that private property cannot be taken or damaged for public use without just compensation and the further provision that urges a remedy for every wrong and under the holdings of the Supreme Court of this State he is given a right of action under the facts proven in this case. Appellee relies chiefly upon the case of Elmore v. Drainage Com’rs., 135 Ill. 269, whcih held expressly that a drainage district was a mere public involuntary quasi corporation, and that there is no corporate liability to respond in damages to an individual injured by the negligent or wrongful act of its officers, agents or servants — in other words, that a drainage district was a governmental agency and in performance of its duties as such could not be held liable for negligence. It seems to us that this doctrine is not only modified but repudiated by the court in the case of Bradbury v. Vandalia Levee & Drainage District, 236 Ill. 36. It clearly holds that a drainage district is not a governmental agency and that the commissioners thereof do not have public duties thrust upon them nolens volens.

Also that the organization of a drainage district is for the sole and exclusive benefit of the territory within the district, citing Commissioners of Union Drainage District No. 3 v. Commissioners of Highways of Township No. 40, 220 Ill. 176. In the case of Ringering v. Wood River Drainage & Levee District, 212 Ill. App. 170, the court in relying on the Bradbury case held that drainage commissioners in adopting plans and specifications for drainage work act in a judicial or quasi judicial character, and hence are not liable for such acts, but when they undertook to carry into effect such plans, they acted in a ministerial capacity and the drainage district was liable for the consequences of their acts', citing City of Chicago v. Seben, 165 Ill. 371, and Johnston v. City of Chicago, 258 Ill. 494. It seems to us that in burning off the weeds and brush on the right of way, the commissioners of the drainage district were pursuing their proprietary or private functions and are liable for damages caused by their negligent or wrongful acts.”

In Farrow v. Eldred Drainage & Levee District, 268 Ill. App. 432, a judgment was recovered against the Drainage District for the sum of $3,000 for alleged injury to crops upon the real estate of the plaintiff located adjacent to a levee and drainage ditch constructed and maintained by the defendant. After the judgment was affirmed by the Appellate Court for the Third District, the case was taken to the Supreme Court. The opinion of the Supreme Court in Farrow v. Eldred Drainage District & Levee District, 359 Ill. 347, states at page 348:

“The judgment above referred to was affirmed by the Appellate Court for the Third District (268 Ill. App. 432,) and later a petition for certiorari was denied by this court.” A branch of that case went to the Supreme Court, entitled, Eldred Drainage & Levee District v. Wilcoxson, 365 Ill. 249, to review a judgment of the county court against the lands lying in the drainage district. In affirming the judgment the Supreme Court, held:
“Under Section 37 of the Levee act a drainage district may levy an assessment to pay a judgment for damages inflicted upon a property owner by reason of the work of the district, no funds being available to pay the judgment; and it cannot be contended that such an assessment is invalid under section 31 of article 4 of the constitution on the ground that the assessment will not benefit the lands of the district.”

Most of the questions raised in the so-called assignment of errors cannot be reviewed owing to the lack of a certificate of evidence, but we think sufficient appears from the authorities which we have cited which clearly shows that such action may be maintained against a drainage district for having caused damage to the property of another. The complaint charges that agents and servants of the District, other than the commissioners, were guilty of negligence. In the absence of a certificate of evidence, we cannot tell which of them was responsible for the acts which caused the damage.

In the state in which we find this record, we must indulge the presumption that the trial judge had sufficient evidence before him to justify the action which he took.

For the reasons herein given the judgment of the superior court is affirmed.

Judgment affirmed.

Hebel, P. J.,

concurs.

Mr. Justice Burke dissenting: It will be observed that plaintiff brought his action against the Lincoln-Lansing Drainage District, a body politic and corporate, and Peter Bultema, Ben Ruiter and Otto F. Kalvelage. The individuals were the duly appointed qualified and acting commissioners of the district during the time the events complained of took place. The case was submitted to the jury as to all the defendants. The jury found the Drainage District guilty and assessed plaintiff’s damages at the sum of $3,500. The verdict of the jury, however, made no finding as to the individual defendants despite the fact that forms of verdict as to such defendants were given to the jury. The action of the jury in returning no verdict as to the individuals is equivalent to a finding of “not guilty” with reference to them. (Wilderman v. Sandusky, 15 Ill. 59; Wabash R. Co. v. Keeler, 127 Ill. App. 265.) The Drainage District argues that the individual commissioners having been found “not guilty,” there can be no recovery against the district. The complaint charges that the Drainage District and its agents and servants “including the commissioners of said Drainage District” were guilty of various acts of negligence and also wilful and wanton conduct, all of which resulted in damage to plaintiff’s leased land. It is manifest that the liability of the District is grounded upon the rule of respondeat superior. The individuals were the officers or servants of the district. The order to dynamite the right angle dam, bulkhead, weir and spillway could only be given by the commissioners. Clearly, if the dynamiting was done without authority of the commissioners, the Drainage District would not be liable. The complaint is grounded on the theory that the dynamiting was by authority of the District. If the individual commissioners were guilty of the negligence and wilful and wanton conduct charged in the complaint, then they were primarily liable. Plaintiff, however, had the right to join the District and the commissioners. He could have dismissed the commissioners out of the case before it was submitted to the jury. He did not do so. According to the weight of authority, where a master and servant are sued jointly in an action based solely on the tortious conduct of the servant, and the servant is acquitted, there can be no recovery against the master. A verdict against a master and acquitting the servant is equivalent to a finding that no cause of action exists and will not support a judgment against the master. (Corpus Juris 39, page 1367, sec. 1602.) The reason for the rule is that the servant’s liability is primary and that of the master secondary or derivative, depending on his duty to respond for the fault of his servant in the line of his employment. When relations between the two are left undisturbed, the master has the right to recover over against the servant for any liability imposed upon the former by the misconduct of the latter, but if the latter is exonerated in an action between him and the injured person, this status is destroyed and the master prevented from such recovery.

Plaintiffs do not question the propositions of law. They seek to overcome the argument of the Drainage District by pointing out that paragraph 18 of the complaint charges that the “Drainage District, its agents and servants, including the commissioners of said Drainage District, and the defendants, Peter Bultema, Ben Ruiter and Otto F. Kalvelage, were each guilty of the acts of negligence set out.” They argue that in view of the fact that no transcript of testimony has been brought to this court that the judgment should be sustained on the basis that the “agents and servants, including the commissioners” of the District were guilty of the acts charged. This is a Drainage District of limited area and resources, and the commissioners who are the individual defendants were well acquainted with all of the activities of the district. The action of the District in dynamiting was directed by the commissioners. If it was done without the authority of the commissioners, then the District would not be liable. No one will argue that if a trespasser went on the property of the District and did the dynamiting that the District would be responsible. It is obvious that the complaint is based on the theory that the dynamiting was done on orders of the commissioners.

My view is that the Drainage District’s motion for a judgment notwithstanding the verdict should be granted.


source: Caselaw Access Project

author: Mr. Justice Denis E. Sullivan

license: Public Domain

text:
    Wm. Wallace McCallum, Appellant, v. Baltimore and Ohio Railroad Company, Appellee.
    Gen. No. 41,550.

      Opinion filed April 23, 1941.
    Wm. Wallace McCallum and Murphy O. Tate, both of Chicago, for appellant.
    Rawlins & Wright, of Chicago, for appellee; Erich W. Lademann, of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

Plaintiff, who is a practicing attorney, brought suit to enforce an alleged attorney’s lien under a contract which he alleges he had with one Lucy Burton, administratrix, to represent her, as attorney, in a claim against the Baltimore & Ohio Railroad Company in an endeavor to recover damages for the death of her husband, Harvey Burton. The cause was tried without a jury and judgment was entered by the trial judge in favor of defendant, from which judgment plaintiff brings this appeal.

It is alleged that the contract made between plaintiff and his client was executed at Chicago, Illinois. There does not appear to be any dispute as to the plaintiff having a contract under the attorneys’ lien law with his client nor that the lien was not in proper form and was served upon the defendant corporation. Defendant is a transportation line which services several states. There does not appear to be any dispute as to the facts, except in a few instances, to which we shall later refer.

It appears that after the contract was made and after plaintiff had investigated the case and prepared to file suit and was negotiating in an attempt to make a settlement with said defendant railroad company, that said defendant railroad company, through some of its agents, met plaintiff’s client in Cincinnati, Ohio, and without the knowledge of plaintiff herein, agreed upon a certain sum of money as a settlement in the case.

The cause of action herein grew out of the death of one Harvey Burton, husband of Lucy Burton, plaintiff’s client, which death it is alleged was the result of injuries sustained by him while employed by defendant railroad, on August 24, 1937, at or near Cannelburg, Indiana, through which the railroad of the defendant runs and negligence was charged on the part of the defendant railroad company.

It further appears that thereafter a suit was commenced in Daviess County, Indiana, by an attorney other than plaintiff herein and a judgment was entered in favor of plaintiff Lucy Burton and against the defendant railroad company for the sum of $8,250; that the proceedings in the court of Indiana and the settlement óf the cause by the defendant railroad company, up to the point of judgment, were all transacted without either the knowledge or consent of plaintiff; that thereafter the defendant railroad company paid to the clerk of the Indiana court the sum of money which had been agreed upon, namely, $8,250 and for which judgment had been entered by said Indiana court. It appears from the record in that case the order directed the money to be paid to the said clerk of the Indiana court and that the claim of plaintiff McCallum as claimant for part of said money was made a matter of record for the first time; that the money was ordered to be impounded with the clerk and that notice be served upon McCallum, plaintiff herein; that said notice so ordered was mailed by the said clerk of the Indiana court and immediately thereafter one of the Chicago attorneys for defendant railroad company, served a similar notice upon plaintiff McCallum, as provided by the statutes of Indiana. The notices in substance stated that on a day and date named therein, the court in Indiana would proceed to adjudicate the rights of the plaintiff MeCallum for any attorney’s fees or claim which he might have against the defendant railroad company or the funds in the hands of the clerk of said court. It appears that plaintiff herein did not appear in the Indiana court. The notice which was served upon plaintiff MeCallum, reads as follows:

“You are hereby notified that on the 20th day of September, 1937, the following proceedings were had in the Daviess Circuit Court of Daviess County, Indiana, to-wit:
‘ ‘ ‘ Comes now the plaintiff by Joseph R. Smith and Herbert W. Lane, her attorneys, and also come the defendants by Allen, Hastings & Allen, their attorneys. And now the defendants file their joint and several answers in two paragraphs to the plaintiff’s complaint herein. And now the plaintiff files her reply in general denial to the second paragraph of defendant’s said answer, putting this cause at issue.
“ ‘And now by agreement of the parties this cause is submitted to the court, without the intervention of a jury, for trial, finding and judgment.
“ ‘The court having heard the evidence and being fully advised in the premises, finds for the plaintiff, that the material averments of the complaint are true and that the plaintiff should recover of and from the defendants on the complaint sued upon herein the sum of Eight Thousand Two hundred fifty dollars ($8,250.00), together with the costs of this action.
“ ‘The court further finds for the defendants on their second paragraph of answer herein and that Joseph P. Smith and Herbert W. Lane are the attorneys for the plaintiff herein and as such will be entitled to file and assert liens against any judgment that may be rendered against the defendants in this cause of action, and that William Wallace McCallum of Chicago, Illinois, has notified the defendants that he is employed by the plaintiff to prosecute her claim against the defendants for damages and that because of such employment he has to prosecute her claim against the defendants for damages and that because of such employment he has and holds a lien against any judgment that may be rendered in any court in favor of the plaintiff herein against the defendants for damages.
“ ‘The court further finds that any money paid by the defendants in satisfaction and discharge of plaintiff’s claim for damages against the defendants should be paid to the Clerk of this court in trust and the same impounded in the hands of said Clerk and held by him until such time as there is a final adjudication of any and all claims that may be asserted against such judgment. Provided, however, that said Clerk may be authorized by proper order of this court to pay from such impounded fund to the plaintiff sufficient money for their immediate needs.
“ ‘It is, therefore, ordered and adjudged by the court that the plaintiff recover of and from the defendants the sum of $8,250.00 together with the costs of this action. It is further ordered and adjudged by the court that upon the payment of said amount by the defendants to the Clerk of this court in trust in payment and satisfaction of said judgment said money shall be impounded and remain in the hands of said Clerk until there shall have been a final adjudication and determination of the claims of the said Joseph P. Smith, Herbert W. Lane and William Wallace MeCallum for services rendered, if any, by them as attorneys, for the plaintiff in the prosecution of plaintiff’s cause of action herein against the defendants and until all proper steps may be taken to protect the interests of the plaintiff herein.
“ ‘It is further ordered and adjudged by the court that the second day, at 1:30 P. M. o ’clock of the next term of this court to be held on the third Monday of November, 1937, be, and the same is hereby fixed as the day when the court will hear and finally adjudicate any and all claims that may be asserted by any person or persons to any part of the money impounded in the hands and held by the Clerk of this court as herein provided and that the Clerk issue summons notice to the said Joseph P. Smith, Herbert W. Lane and William Wallace McCallum, to be served upon each of them notifying them of the time and place of hearing of their claims to any part of said money.
“ ‘You are, therefore, notified to be and appear in said Daviess Circuit Court at the hour of 1:30 o’clock P. M. on the 16th day of November, 1937, the same being the second day of the next November Term of said court to be begun and held on the 15th day of November, 1937, at the Court House in the city of Washington in said County and State, at which time said court will hear and determine your rights, if any, as to a lien against said judgment and the amount thereof, if any, that you should be paid from the fund now impounded in the hands of the Clerk of said Court.
“ ‘In Witness Whereof, I have hereunto set my hand and affixed the seal of said Court at the City of Washington, Indiana, this 28th day of September, 1937.
“(Seal)
“ ‘Roscoe T. Myers,
Cleric, Daviess Circuit Court.’ ”
“To the State of Illinois, Cook County, ss:
“Erich W. Lademann, being duly sworn, upon his oath, says that he served the notice to which this affidavit is attached, on William Wallace McCallum at the city of Chicago, State of Illinois, on the 4th day of October, 1937, by delivering to him a true copy of said notice and informing and explaining to him the purpose of the same.
“Affiant further says that the said William Wallace McCallum is not a resident of the State of Indiana, and that the said William Wallace McCallum, on whom said notice was served, is the identical person named in the judgment set forth in the foregoing notice.
“Erich W. Lademann.
“Subscribed and sworn to before me, a Notary Public, in and for Cook County, Illinois, this 4th day of October, 1937.
“Thomas M. Butters,
Notary Public.
“My Commission expires March 13, 1938.”

It is claimed by defendant here that the statutes of Indiana authorize and give to the courts of that State jurisdiction of nonresidents'. The statute, sec. 2-807 (338) Burns Indiana Stats. Ann. 1933, p. 98, reads as follows:

“The Clerk, by order of the court, if in session, or in vacation without such order, shall cause notice of the pendency of any such action, and the term at which the same will stand for trial, to he published for three (3) weeks successively in some paper of general circulation. . . .”

Paragraph 3 of said act, which further defines the character of cases in which such service may be had, reads in part as follows:

“Where the defendant is not a resident of the state, and the cause of action is founded upon or connected with a contract, or arises from a duty imposed by law, in relation to real estate in this state, or the object of the action is to enforce or discharge a lien, or to obtain a divorce. . . .”

Section 2-808 (339) Burns Indiana Stats. Ann. 1933, p. 100, provides for service on parties without the state, as follows:

“When the defendant is a nonresident, personal service of the summons out of the state is equivalent to publication; and such service may be proved by the affidavit of a competent person, made before any officer authorized to administer oaths; which affidavit shall state the time and place and mode of giving the notice, and set forth that the person thus served with notice is the identical person named in the action or proceeding; or the identity of the person may be proved by the affidavit of the plaintiff or any other person.”

In the instant case, the notice which we have quoted was served upon plaintiff herein on October 4, 1937, some six weeks prior to the hearing on said liens in said Indiana court as the date was set for November 16, 1937, the second day of the November term. As heretofore stated, plaintiff did not appear in Indiana or submit to the jurisdiction of that court, and the Indiana court did not allow any part of the fund to be awarded to the plaintiff in this suit.

It further appears that the plaintiff in the original suit hired certain lawyers in Indiana to commence said action for damages in Indiana and in substance it is alleged that this was done at the behest of the defendant railroad company and was in the nature of a conspiracy to destroy the plaintiff’s claim for fees under the laws of Illinois. Aside from the statements made in plaintiff’s brief, we find no evidence that such was the fact. At this point we might say that the briefs of the contending parties contained allegations, charges and counter charges intended to impugn the honesty and integrity of the parties and counsel connected with this case, either by sarcastic innuendo or intimation which is termed as comments on the evidence. No motions were made in this court to strike the briefs because they were scandalous. We might at this time add that such statements, either true or false, are not at issue and they reflect no credit upon the counsel responsible ■ therefor and are of no assistance to this court in deciding the questions presented for our consideration.

The main question we believe is whether or not the Indiana court had the right and jurisdiction to determine the issues which were submitted to it. Plaintiff in his brief at page 21, makes the following statement:

“It must ever be kept in mind that so far as the proceeding in Indiana went and so far as they attempted to go, that William Wallace MeCallum was not attorney of record in that suit: that he never was before that Court: and that the Indiana Court never at any time had any jurisdiction over him.”

A case somewhat similar to the instant case is that of Noell v. Missouri Pac. R. Co., 335 Mo. 687, 74 S. W. (2d) 7, where on page 13, the court, after pointing out that the proceeding was not a bill of interpleader but a proceeding to distribute property and adjudicate liens, said:

“Its object was not to bring rival claimants into court to litigate a dispute between them, but to distribute property already there. The property in this case, the Arkansas judgment, was the same as a fund already in the court’s custody, ... No other court did or ever could have custody of it. Therefore, that court alone had exclusive jurisdiction to dispose of it by determining the distribution of it and adjudicating plaintiff’s lien upon it. . . . In doing so, by proper notice, it could require any person anywhere to come there and assert his claim or be thereafter barred. ’ ’

In Heidritter v. Elizabeth Oil Cloth Co., 112 U. S. 294, 28 L. Ed. 729, the court at page 732, said:

“This proceeding was undoubtedly in rem, and it is quite immaterial whether the law authorized an absolute forfeiture of the res, including all interests and estates in it, so as to overreach antecedent liens and adverse claims, or only of the actual interest of the owner charged with the violations of law at the time of the alleged offenses. In either view and for either purpose, the court had taken possession of the property itself, and that possession was necessarily exclusive. ’ ’

In Wabash R. Co. v. Adelbert College, 208 U. S. 38, 52 L. Ed. 379, the court at page 386, said:

“When a court of competent jurisdiction has, by appropriate proceedings, taken property into its possession through its officers, the property is thereby withdrawn from the jurisdiction of all other courts. The latter courts, though of concurrent jurisdiction, are without power to render any judgment which invades or disturbs the possession of the property while it is in the custody of the court which has seized it. For the purpose of avoiding injustice which otherwise might result, a court during the continuance of its possession has, as incident thereto and as ancillary to the suit in which the possession was acquired, jurisdiction to hear and determine all questions respecting the title, the possession, or the control of the property.”

In Amparo Min. Co. v. Fidelity Trust Co., 74 N. J. Eq. 197, 71 Atl. 605, the court in holding the case was quasi rem, at page 608, said:

“The state must control all property within its territorial limits. Parties interested in that property, and residing within the state, or voluntarily coming into the state, in order to have their rights in respect of the property in question enforced or protected, have a right to be heard in the courts of the state, and the utmost that can be demanded on the part of nonresident defendants is that they shall be fairly notified of the action so as to have an ample opportunity to appear and be heard therein. When these conditions exist, the rights of all parties interested in the res are determined by due process of law.”

Again referring to the case of Noell v. Missouri Pac. R. Co., 335 Mo. 687, 74 S. W. (2d) 7, the Supreme Court of Missouri after pointing out that the Arkansas court had the physical custody of the fund in question, stated at pag*e 14:

“Therefore, that court alone had exclusive jurisdiction to dispose of it by determining the distribution of it and adjudicating plaintiff’s lien upon it. Heidriiter v. Elizabeth Oil Cloth Co., 112 U. S. 294, 5 S. Ct. 135, 28 L. Ed. 729. In doing so, by proper notice, it could require any person anywhere to come there and assert his claim or be thereafter barred. Plaintiff, having been properly served in accordance with the laws in that state in such a proceeding, is bound by its decree in so far as it determined his lien upon the property in its custody.”

In the instant case, we think the Indiana court had jurisdiction of the subject matter and also under the law had jurisdiction of the parties thereto. Much has been said regarding the action taken by the Indiana lawyers in commencing suit and settling the case and the action of the defendant railroad company in submitting to the jurisdiction of the Indiana court. The plaintiff, evidently employed several lawyers, one of whom commenced suit in Indiana on behalf of his client, and settled the case which, no doubt, they had a right to do and the defendant in that jurisdiction had a right to submit to the jurisdiction imposed upon it. If one has a right to do a certain act, the motive which causes him to do it is of no great consequence. The briefs filed in this court by plaintiff contain a review of the action of the Indiana court and a detailed criticism of the action taken by that court. We do not have the power or the inclination to review the action of the Indiana court and it occurs to us that it was the duty of counsel for plaintiff in this suit to have appeared in the Indiana court and pointed out wherein such court was committing error, so that justice might be rendered. That was his duty to his client as well as to himself as having an interest in the res. Whether or not the interest of plaintiff Mc-Callum was by that time adverse to that of his client would be perhaps a question for the Indiana court to decide. It might well be that if counsel appeared in the Indiana court and had given that court the benefit of his suggestions (inasmuch as he had received the notice, creating jurisdiction in the Indiana court, some six weeks prior to the time the cause was decided) then possibly, the errors of which he now complains would not have occurred.

From the record in this cause and the law as we construe it, the trial court committed no error in deciding this cause in favor of defendant. For the reasons herein given the judgment of the superior court is affirmed.

Judgment affirmed.

Hebel, P. J., and Burke, J., concur.


text:
    J. H. Hedley, Appellee, v. Michigan Central Railroad Company, Appellant.
    Gen. No. 41,570.
    Opinion filed April 23, 1941.
    Sidney C. Murray, of Chicago, for appellant; Frederick W. Flott and John B. Kneipple, both of Chicago, of counsel.
    J. Kendall S. Mitchell, of Chicago, for appellee; Charles S. Harvey, of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

Defendant Michigan Central Railroad Company brings this appeal from a judgment entered on the verdict of a jury in favor of plaintiff, J. H. Hedley and against defendant for $1,500. The suit was instituted to recover the alleged value of certain property contained in a handbag belonging to plaintiff which was lost while in the custody of a porter or “red cap.”

From the facts it appears that on January 26, 1939, plaintiff purchased a ticket from Chicago to Detroit via lines of the defendant railroad company; that he also made a reservation for space on a Pullman car on defendant’s train, scheduled to leave Chicago at approximately midnight on the same day; that a short time before his departure Hedley gave his baggage, consisting of a Gladstone bag and a typewriter, to a “red cap,” who took it to the platform and returned to the waiting room for more baggage; that the Gladstone bag was stolen when the “red cap” returned for more baggage, and its contents were never recovered.

It further appears that Hedley thereafter filed a claim with the carrier which is set out in detail, listing the items claimed to have been lost; that the total amount claimed to have been lost was $283.95, which included $153 in cash.

During the trial, defendant admitted the loss of additional items, namely, stamps valued at $3.50 and a fraternity pin valued at $15. These amounts added to the original claim would make a total amount of $302.45. Of this amount defendant is contesting only the recovery of the $153 in currency and the manuscript hereinafter mentioned.

It appears that the only items in controversy are the money, namely, $153 and a certain unfinished manuscript, and as to the manuscript, at the time of filing claim plaintiff claimed no particular sum for that.

It further appears that when. the Gladstone bag was stolen it contained plaintiff’s wearing apparel, the money and the manuscript; that plaintiff made out a written claim on forms furnished by the defendant company setting forth the loss of the money and at that time he valued the manuscript at $75; that he was taking the money to Detroit as he stated he intended to pay two insurance premiums.

During the trial, however, plaintiff testified that the money herein referred to was to be used to- pay his traveling and personal expenses, hotel bills, etc., until he received his next expense check; that “I do not think I was to use it for any other purpose, other than just the ordinary run of expense.”

Plaintiff further testified that it was practically impossible to place a value on the manuscript which he alleges he lost, but later placed a value of $2,500 for manuscript and diaries.

At the hearing the defendant introduced, without objection, the tariff of the transportation company filed with the Interstate Commerce Commission of Washington, D. C., and certified under the hand of the Secretary of Interstate Commerce Commission, which reads as follows:

‘ ‘ Title page 1:
“ ‘Baggage Buies, Regulations, Rates and Charges applying in connection with the Transportation of Baggage and other Articles and Property as Classified herein; also Corpses.’
“Page 8 — Application of Tariff.
“ ‘The rules, regulations, rates and charges contained herein apply in the checking, storage and transportation of baggage, other articles, property and corpses in connection with valid transportation between stations on the lines of the issuing and initial participating carriers shown herein. ’
“Page 25 — Rule 9.
“ ‘Baggage or Property Prohibited because of Weight, Size, Value or Character.
“ ‘(a) The acceptance of property described below, or not authorized in this tariff, is expressly prohibited in baggage service under any circumstances whatever (except as provided in Rule 6 covering transportation of Public Entertainment Paraphernalia). If such property is delivered to the carrier contrary to the terms of this rule, the carrier will not be responsible for loss, damage or injury to such property; but such property shall be entirely at the risk of the passenger or owner. . . .
“ ‘Money. . . .
“ ‘Papers of Value (Negotiable Papers, such as Stocks, Bonds and similar valuables).’ ”

At the time of the trial the court instructed the jury as to said tariff schedule, as follows:

“The Court instructs the jury that the parties herein are expressly bound by the provisions and conditions of the defendant’s tariff covering the transportation of baggage.” This tariff limits the recovery to the actual value of baggage for personal use on the trip. If the jury had followed the instructions of the court its verdict would have been in harmony therewith. On the contrary, the jury returned a verdict for $1,500, which clearly shows that they did not follow the instructions of the court and did not properly consider the evidence.

"When the defendant made a motion for a new trial, in view of the verdict of the jury which is not supported by the evidence or in compliance with the instructions given by the court to the jury, a new trial should have been granted. The judgment which the court entered was not based upon any theory upon which the cause was tried. The trial court committed error in refusing to grant the motion made for a new trial.

For the reasons herein given the judgment of the municipal court is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded.

Hebel, P. J., and Bueke, J., concur.


author: Mr. Justice Deris E. Sublevar Mr. Justice Burke

text:
    Metropolitan Life Insurance Company, Appellee, v. Ralph A. Schwarz, et al., Appellants. Ralph A. Schwarz, et al., Appellants, v. Warner G. Baird, Receiver, and Metropolitan Life Insurance Company, Appellees. Appeal of Ralph A. Schwarz, et al., Appellants.
    Gen. No. 41,581.

      Burke, J., dissenting.
    Opinion filed April 23, 1941.
    Rehearing denied May 15, 1941.
    Thare S. Cooley, of Chicago, for appellants.
    Follarsbee, Shorey & Schupp, of Chicago, for appellees; Elsdor C. Smith, of Chicago, and Mitchell D. Follársele and Clyde E. Shorey, of counsel.
   Mr. Justice Deris E. Sublevar

delivered the opinion of the court.

The appellees herein state that defendants’, preliminary statement of the form of action and judgment rendered, the nature of the pleadings and theory of the defendants are, in the main, accurate, but that the theory of the plaintiff is not clearly given. Consequently, we shall avail ourselves, in so far as they have agreed, of the following statement of facts.

Plaintiff, Metropolitan Life Insurance Company, filed its complaint' on April 19, 1939,. praying for the foreclosure of a mortgage executed by the defendants in 1930. The mortgage in question was in the principal amount of $100,000 and was secured by a trust deed conveying real estate improved with a 34 apartment building. A receiver was appointed who proceeded to collect the rents until February 5, 1940. At that time, the net rents in his hands amounted to $5,901.86.

During the pendency of the foreclosure proceeding, negotiations were conducted between counsel for each side for the purpose of settling the case. As a result of these negotiations, a written settlement agreement, dated February 5, 1940, was executed and under that agreement the plaintiff accepted a conveyance of the real estate in full satisfaction of the mortgage indebtedness. No foreclosure decree was ever entered in this proceeding.

After the settlement agreement between the plaintiff and the defendants was executed and fully consummated, the question for the first time arose as to the disposition of the rents in the receiver’s hands. The receiver filed his final account and report showing the net amount of rents on hand, viz: $5,901.86, on March 19,1940. On the same day, defendants, by their attorney, filed their petition pleading a discharge of the mortgage indebtedness as evidenced by the settlement agreement, and praying that an order be entered on the receiver directing him to turn over the net rents to them.

In opposition to defendants’ petition, the plaintiff filed its answer and cross petition and likewise claimed the rents in question.

At the hearing before the trial court, the defendants introduced in evidence the written settlement agreement and then rested their case. The plaintiff introduced evidence attempting to show an understanding between its attorney and the former attorney for the defendants, to the effect that the receivership rents were to go to the plaintiff. All of this evidence was objected to on the ground that it was parol in character and sought to vary the express terms of the written settlement agreement.

We are setting forth plaintiff’s theory haec verba:

Plaintiff contends that, upon default in payment under the note and trust deed, it is by law entitled to the rents and profits, where, as here, the trust deed pledged and assigned the rents, issues and profits; that this right was further confirmed by the management agreement given to its agent, the Great Lakes Mortgage Corporation; that the settlement was made with the matter clearly understood by both parties that the Metropolitan Life Insurance Company, plaintiff, was to receive the net rents in the hands of the receiver, and that when the deed was received in full discharge of the mortgage indebtedness it was to be taken as discharging the balance of the indebtedness after that part, represented by the net rents, had been applied to the indebtedness. In the trial court plaintiff, to make the matter clear, also asked for a reformation of the contract, but as the decision was given in favor of the plaintiff, a decree for reformation was not entered.

Defendants’ theory is set forth as follows:

(1) That plaintiff’s written acceptance of a conveyance of the real estate in full discharge of the mortgage indebtedness, resulted in a release of plaintiff’s lien against the rents collected by the receiver.
(2) That plaintiff’s voluntary satisfaction of the indebtedness made the entry of both a foreclosure decree and a deficiency decree impossible. Since the defendants’ obligation was satisfied in full, plaintiff could have no claim to the rents in the receiver’s hands.
(3) That apart from the written settlement agreement, there exists in the record no evidence whatsoever which establishes any additional understanding, either oral or written, as to the disposition of the rents in the receiver’s hands.
(4) That “inadvertence” on the part of the plaintiff (who prepared the settlement agreement) in failing to insert a provision governing rents in the receiver ’s hands, will not warrant the court in making a new contract for the parties.
(5) That there exists no “custom” as urged by the plaintiff, to the effect that rents in a receiver’s hands are always given to the mortgagee.
(6) That the management agreements between the defendants and their agent, the Great Lakes Mortgage Corporation, have nothing to do with rents collected by the receiver in the foreclosure proceeding.
(7) That the facts in this case establish that defendants, as the owners of the equity of redemption, are equitably entitled to the rents.

It appears from the evidence in this case that this foreclosure suit was never concluded; that while it was pending in court the parties got together and entered into a written agreement which on its face shows that the case was settled. Under that agreement the owners of the equity of redemption agreed to convey their equity in full payment and satisfaction of the mortgage indebtedness, and the plaintiff accepted such conveyance in discharge of the debt. On that subject the contract reads as follows:

“Now, Therefore, said party of the first part (plaintiff) has agreed to accept and does accept said conveyance in full payment, satisfaction and discharge of said mortgage indebtedness and all unpaid interest thereon, and it is agreed by and between the parties hereto in consideration of said conveyance, that all of said mortgage indebtedness and interest thereon secured by said trust deed has been and is hereby can-celled, satisfied and extinguished, ... ”

Where a receiver is appointed to collect rents in the foreclosure of a mortgage, there is no way of knowing until after the sale whether the rents so collected, upon which the mortgagee has a lien for the payment of any deficiency, will be needed. Without a deficiency, there is nothing upon which the rents could be applied.

In Davis v. Dale, 150 Ill. 239, and Talcott v. Peterson, 63 Ill. App. 421, the real estate was bid off for the full amount of the decreed indebtedness. Obviously, no deficiency could result. In those cases the rents were held to belong to the mortgagor. In the instant case the debt of the defendants was fully satisfied under the settlement agreement, a conveyance of the real estate having been accepted by the plaintiff and a full discharge thereof. The conveyance had the same effect as a foreclosure sale for the full amount of the indebtedness.

In Corcoran v. Witz, 252 Ill. App. 473, rents were collected and the suit was ultimately dismissed without the entry of any decree. The court in awarding the rents to the mortgagor, at page 475, said: “The owner of the mortgaged premises was entitled to the rents unless, upon a bill filed on account of some default, a receiver was appointed who might collect and hold the rents and pay them to complainants in case there was a deficiency; but in case there were no deficiency, the rents belong to the owners of the equity. Davis v. Dale, 150 Ill. 239.” Levin v. Goldberg, 255 Ill. App. 62.

West Frankfort Building & Loan Association v. Dorris, 260 Ill. App. 21, was a case wherein a decree of strict foreclosure was entered and plaintiff accepted a conveyance in full payment of the debt. The court in that case said at page 28: “The complainant . . . by accepting the property in full payment of the mortgage debt, interest and costs, is now estopped from any claim or title to the funds in the hands of the receiver.”

In the instant case the trial court in the order appealed from, makes a finding concerning which the appellee does not complain, but which on its face reads as follows: “ £ . . . and the Court having read said report finds therefrom and from the file and records herein that the Metropolitan Life Insurance Company accepted title to the premises in lieu of the completion of the foreclosure and in cancellation of the mortgage indebtedness, on February 5, 1940. . . . ’ ” This finding by the trial court exactly conforms to the terms of the written settlement between the parties. The court does not find in its order other than that the agreement was the entire consideration for the conveyance of the appellant to the appellee of the premises in settlement of the debt. It cannot be contended that if there had been a sale and a conclusion of the foreclosure and if the property had been sold by the master for enough to pay the indebtedness, that in addition thereto the plaintiff should be entitled to the rents which had been collected and were in the hands of the receiver. Rents are merely additional security upon which the plaintiff would have a lien, and such rents are held by the court to be used to satisfy the debt in case there is a deficiency. Such was the prayer in the complaint to foreclose. In this case, no decree having been entered, the debt having been satisfied by an agreement in writing, no lien existed against the rents, therefore, we do not think it would be legal or equitable to give to plaintiff the rents which had accumulated in payment of a deficit which does not exist.

In Citizens State Bank v. Goebel, 292 Ill. App. 95, the court had under consideration rents which had been collected by a receiver prior to the entry of a decree, and at page 102 the court said:

“The foreclosure decree could not adjudicate the right to the money in question, because the court could not determine who was entitled thereto until after the sale. (First Nat. Bank v. Illinois Steel Co., 174 Ill. 140, 150; Owsley v. Neeves, 179 Ill. App. 61, 64, 65.)”

The trust deed in this case, by its terms, precludes the idea that the plaintiff was entitled to the rents col-looted, to be paid to it as a bonus, wherein it states: “ ... that said receiver may out of said rents pay prior or coordinate liens, the taxes, assessments, water rates and insurance . . . and the amount of any deficiency decree.” Furthermore, inasmuch as the plaintiff accepted the premises in full satisfaction of the mortgage indebtedness, there could be no deficiency decree entered in this case.

It is claimed by plaintiff that the contract, although it does not provide for the payment of the rents, was left out of the settlement contract through “inadvertence.” There is no evidence in the record, either oral or written, on this subject and we think such contention is precluded by the following language which appears in the settlement contract:

“It is hereby mutually agreed that all promises, undertakings and agreements of any kind or character whatsoever are embodied herein.” This clause in the contract, by which the parties determine and resolve that anything they had agreed to do is incorporated into the contract, is as binding upon them as is any other stipulation of the contract.

In Sterling-Midland Coal Co. v. Great Lakes Coal & Coke Co., 334 Ill. 281, wherein the Supreme Court in passing upon a contract similar to this one, at page 290, said: “If a written contract purports on its face to be a complete expression of the whole agreement it is to be presumed that the parties introduced into it every material item and term, and parol evidence is not admissible to add another term to the agreement about which the contract is silent.

“In the instant case any such rights, duties or liabilities which would arise by implication of law are specifically negatived by the provisions which each contract contains, ‘there are no understandings or agreements relative to this contract or its subject matter that are not fully expressed herein.’ . . . The clause of the contract just quoted not only negatives the fact that there are any contemporaneous parol understandings or agreements existing between the parties relative to the contract, but also expressly negatives the fact that there are any understandings, whether arising by implication of law or otherwise, between the parties as to the subject matter of the contract, — i. e., as to the coal itself which is the subject matter of the contract. This clause of the contract is just as binding upon the parties as any other clause and the municipal and Appellate Courts had no right to disregard it.” See also Armstrong Paint & Varnish Works v. Continental Can Co., 301 Ill. 102.

An attempt was made by plaintiff in the trial court to show by parol evidence that this contract did not cover all the agreements between the parties. The court permitted evidence to be introduced tending to show that parol or extrinsic agreements, in addition to that which is set forth in the written contract. While the evidence was not of any particular value, we think. such evidence would have been inadmissible and that the court should not have permitted this to have been done. It cannot be accepted, and the court has no power to make a new contract for the parties.

Evidence was introduced attempting to show that there existed a custom that in all cases the court usually gave the rents to the plaintiff. If there was such a custom, we have never heard of a court deciding a case as being governed by a certain custom which had grown out of some other case. Custom cannot be invoked to avoid a settled rule of law. Gilbert v. McGinnis, 114 Ill. 28; Bissell v. Ryan, 23 Ill. 566; Entwhistle v. Henke, 211 Ill. 273.

One of the allegations in the pleadings of the plaintiff, is as follows: “It is the custom for the mortgagee to receive the net rents in the hands of the receiver.” A witness produced by plaintiff testified that it was his invariable experience in Chicago that when settlements of this kind are made after foreclosure proceedings are started, the plaintiff receives the net rents in the hands of the receiver. Inasmuch as the contract in this case states that it includes “all promises, undertakings and agreements of any kind or character whatsoever are embodied herein,” such testimony would not be of controlling value. Turner v. Osgood Art Colortype Co., 223 Ill. 629; Gilbert v. McGinnis, 114 Ill. 28.

It further appears from the evidence that at the request of the plaintiff a contract was entered into between the defendants and the Great Lakes Mortgage Corporation, which corporation was controlled by plaintiff, as their agent to manage the property. Said Great Lakes Mortgage Corporation, charged six per cent for the collection of the rents and at the same time they hired one of the defendants to actually do the work of managing said building. Plaintiff now contends that these contracts between the defendants and the Great Lakes Mortgage Corporation should be construed as an assignment of the rents to them; also that these contracts also gave to the Great Lakes Corporation an authorization to apply the net rents in payment of the mortgage indebtedness, general taxes or special assessments. As already stated, these two contracts were adhered to for a period of approximately five years, and the collection of rents and income were applied on the principal indebtedness and other expenses of the property.

Plaintiff further contends that these so-called contracts constituted an absolute assignment of the rents to plaintiff and gave it an absolute right to such rents as distinguished from a lien. These agreements do not carry out the contention of the plaintiff. By the appointment of the receiver, the property and income therefrom was placed in the control of the court through its receiver and had the effect of nullifying the contract with the Great Lakes Mortgage Corporation. It is true the plaintiff had the right to have the rents applied against its debt when so ordered, but only in the event that such rents might be required for that purpose as evidenced by a deficiency decree and the evidence in this case shows that the rents were not required for that purpose. Once a receiver was appointed, plaintiff could no longer have an absolute right to the rents, even though it might be claimed to have such a right before the receiver was appointed. These funds could not be applied before the foreclosure decree or prior to a sale and the establishment of a deficiency.

As was said in Owsley v. Neeves, 179 Ill. App. 61:

“After the deficiency was established appellees [mortgagees] then for the first time were entitled to an order applying the rents to extinguish their judgment, and they were entitled to such an order by reason of the express provisions of the trust deed to which appellant’s rights were subject by the express terms of the deed made to him. The foregoing principles are well established as law and equity in this state.’’ See also Citizens State Bank v. Goebel, 292 Ill. App. 95.

Whilst there is no direct testimony as to the value of this property, yet the income from it would indicate a value in excess of the amount of their loan. The $900 monthly payments, or $10,800 yearly, would have been sufficient to pay the interest on the principal which had been paid down to $96,000, six per cent of which would amount to $5,760. The general taxes amounted annually to about $2,800, which would leave a surplus of approximately $2,240 per annum after having paid the taxes and the interest.

It is contended by the appellees that we should set aside the settlement which was entered into between the parties by their written contract. The mere oral statement that the contract was entered into through “inadvertence” is not sufficient. There is no allegation or proof of a mutual mistake, fraud or misrepresentation. It was a voluntary settlement between two contending parties dealing at arm’s length. The adjustment figure was arrived at, an agreement was entered into and incorporated, and we do not think this court in view of the record before us, should disturb the same.

We do not think there are any equities on behalf of the plaintiff which should be satisfied. Plaintiff has received the building and the indebtedness thereon has been paid down to $96,000. We believe the settlement made should be adhered to, it was openly arrived at, solemnly agreed to and partially executed, and this court would have no power to change those factors. The deed has been delivered and accepted and the plaintiff is now in possession of the real estate. We think the trial court should have entered an order in harmony with its finding as made in its decree, namely, that a settlement was made of the indebtedness by a conveyance of the real estate. Inasmuch as the parties did not choose to dispose of the property in the hands of the receiver, there is no reason why the court should give them an additional premium in this settlement. Agreements in writing, under seal, should be upheld unless for grave reasons it becomes necessary to set the same aside. We believe the money derived from this property which has not been disposed of, properly belongs to the former owner of the equity.

For the reasons herein given the order of the circuit court is reversed and the cause is remanded with directions to enter an order awarding the amount of money in the hands of the receiver to be paid to the appellants in this case.

Order reversed and cause remanded with directions.

Rebel, P. J., concurs.

Mr. Justice Burke

dissenting: Under the facts as disclosed by the record, it is inequitable to give the $5,901.86 in the hands of the receiver to the defendants. The chancellor was right in directing that this sum of money be turned over to the plaintiff. The evidence establishes that the defendants agreed that the plaintiff was to have the net rents in the hands of the receiver. They clearly understood this. The parties also agreed that the rents collected by the defendants should be retained by them. Attorney Austin L. Wyman, who represented defendants at that time, informed defendants that it was agreed that the net rents in the hands of the receiver were to go to the Metropolitan Life Insurance Company, plaintiff. He testified that after a stormy argument the defendants agreed, and that he was authorized to deliver the papers to the insurance company with that understanding." No objection was voiced to the fact that Mr. Wyman, the former attorney for the defendants, testified in behalf of the insurance company. The parties recognized that Mr. Wyman was not doing anything unethical in so testifying. It must be remembered that under the settlement the defendants have been allowed to. keep $2,700 in rents which they collected for February, March and April, 1939, and which they wrongfully retained. It is to be observed that plaintiff sought to declare a cancellation of the settlement agreement and to proceed with the foreclosure, which offer was refused by the defendants. After the foreclosure action was filed the defendants proposed to give a deed for the sum of $2,000, which was refused; they then proposed to give a deed for $1,000, which was also refused. It is unreasonable to suppose that the plaintiff would refuse to pay $2,000 for a deed in lieu of completion of foreclosure, then refuse to pay $1,000, wait until $5,000 was in the hands of the receiver and then take a deed in lieu of completion of foreclosure and agree that the defendants were to have this $5,000 as well as the $2,700, estimated net rents for February, March and April, 1939.


text:
    Frank Ewald, Appellee, v. Pielet Scrap Iron and Metal Company et al., Sued Herein as Co-partners, Trading as Pielet Wrecking and Scrap Iron Company and Frank Kowla, Defendants. Pielet Scrap Iron and Metal Company et al., Sued Herein as Co-partners, Trading as Pielet Wrecking and Scrap Iron Company, Appellants.
    Gen. No. 41,604.
    Opinion filed April 23, 1941.
    Rehearing denied May 15, 1941.

      Lord, Bissell & Kadyk, of Chicago, for appellants.
    Alfred M. Loeser, of Chicago, for appellee; Harold Z. Novak, of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

Defendants herein, with the exception of Frank Kowla, bring this appeal from a judgment for $4,000 entered in favor of plaintiff for damages alleged to have been sustained because of an assault and battery committed on plaintiff by defendants’ watchman, Frank Kowla, acting within the scope of his authority. The cause was tried before a judge and jury, resulting in a verdict for $5,800, upon which the trial judge requested that a remittitur of $1,800 be made and entered judgment for $4,000, as aforesaid.

Plaintiff’s theory of the case is that he was assaulted by defendants’ watchman acting in the course of his employment, and that as a result of the assault he sustained serious injuries.

Defendants’ theory of the case is that plaintiff sustained only superficial injuries as a result of the encounter and the damages awarded are grossly excessive; that defendants were deprived of a fair trial by the repeated prejudicial misconduct of plaintiff’s counsel and by the admission of irrelevant and prejudicial evidence offered by the plaintiff; that plaintiff should not have been permitted to give his opinion that he had fully recuperated from a prior accident; that the hypothetical question propounded by plaintiff was improper because it omitted material facts and included other facts not in evidence and should have been stricken; that the individual defendants are in no event liable because the watchman was not their employee.

The evidence in this case shows that some of the defendants are engaged in maintaining a junk yard either in their own names or in the name of the corporation as herein set forth; that the junk yard is located at 2641 south Whipple street, Chicago, Illinois.

The evidence further shows that one Frank Kowla was acting as a watchman for the defendants or some of them; that on May 29, 1938,- plaintiff, while walking on the sidewalk in a northerly direction on the east side of Whipple street, as he neared defendants’ junk yard, heard a voice calling to him to come into the junk yard; that plaintiff looked and saw a fellow whom he knew by sight, but whom he does not identify, and that person motioned for plaintiff to come into the yard; that plaintiff walked into the junk yard and when he had proceeded some 30 or 35 feet, he heard someone “cuss” and mumble behind him; that as he turned to see who it was, he heard a shot and at the same time was hit on the head and he fell backwards; that plaintiff was hit on the head with the butt end of a revolver which knocked him unconscious; that plaintiff was severely injured and was taken to a hospital; that according to the testimony of the doctor who examined him shortly thereafter, plaintiff received a head concussion; that he had trouble with his left arm and leg and his eyes bothered him and there was a blurring of vision; that plaintiff’s back was injured when he fell after he had been shot and assaulted; that plaintiff did not recover his health for over a period of two years thereafter and then only after having been put to great expense, loss of time and suffering.

No grave question of law arises in this case, as it is based almost entirely on questions of fact. Some complaint, however, is made that improper questions were asked by counsel for plaintiff which were prejudicial. In looking through the abstract one is cognizant of the fact that counsel for defendants erred in this regard as frequently as did counsel for plaintiff.

Plaintiff apparently bases his theory relative to defendants’ responsibility in this case on the proposition that a master who negligently selects an incompetent servant or who retains in his employ a servant known to be incompetent, is liable for injuries to third persons resulting from the acts of the incompetent servant and he must exercise care in the selection or retention of his servants.

In offering proof in this case plaintiff failed to make any distinction between the Pielet Scrap Iron & Metal Co., a corporation, Bessie Pielet, Dave Pielet and Robert A. Pielet, sued herein as co-partners doing business as Pielet Wrecking & Scrap Iron Company. The verdict of the jury found them all guilty and judgment was entered against all of them for the entire amount. The uncontradicted evidence shows the Pie-lets as individuals had no interest in the junk yard; that the junk yard belonged to the corporation and the watchman was employed by the corporation solely. No proof has been definitely made as to for whom this man Kowla was working, whether he was working for the corporation or for the partnership. Manifestly, these are two different entities and the evidence does not make this point clear, that is whether Kowla was. working for either or both. The judgment should be entered against only those who are legally liable.

Plaintiff’s theory of the case, as stated, is that Kowla made a motion with his hand indicating that plaintiff should come into the junk yard, but no evidence is shown as to what was said at the time. The evidence does not show nor does the plaintiff contend that as a result of this so-called motion by some one not identified by plaintiff, that plaintiff was induced to enter the junk yard and thereby became an invitee of the defendants.

The complaint alleges that the actions of the watchman were pursuant to his employment. It is difficult to believe that a watchman would be hired to invite individuals into the junk yard for the purpose of assaulting or shooting them. Metder v. Layton, 373 Ill. 88.

It further appears that proof was introduced showing that the watchman was in the habit of getting drunk and had theretofore assaulted other persons. If plaintiff’s theory is that the defendants are liable under the doctrine of respondeat superior, the fact that the watchman had previously assaulted someone else, at a different time and place, would throw no light on the assault in the instant case but, on the contrary, would be very prejudicial and we think the court erred in admitting such evidence.

Inasmuch as this case will have to be retried, we shall not comment further on the issues or the evidence. Suffice it to say that the record does not justify the verdict and judgment.

For the reasons herein given the judgment of the circuit court is reversed and the cause is remanded for a new trial.

Judgment reversed and cause rema/nded.

Hebel, P. J., and Burke, J., concur.


author: Mr. Presiding Justice Wolfe

text:
    In re Estate of Clinton D. Ellsworth, Deceased. Esther M. Watkins, Appellant, v. Henry C. Warner, Executor of Last Will and Testament of Clinton D. Ellsworth, Deceased, Appellee.
    Gen. No. 9,638.
    Opinion filed April 25, 1941.
    Dixon, Devine, Bracken & Dixon, of Dixon, for appellant ; J. C. Ryan, of Dixon, and Robert L. Bracken, of counsel.
    Elwin M. Bunnell, pro se.

    Morey O. Pires, of Dixon, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

Clinton D. Ellsworth died on or about the 15th day of September, A. D. 1938, and at the time of his death, resided in Lee county in the State of Illinois. He left him surviving Esther M. Watkins, his daughter, the appellant, as his only heir-at-law. His last will and testament was admitted to probate in the county court of Lee county on the 21st day of September 1938. The testator, after making certain devises and bequests provided by the third and fourth clauses of his will, that his daughter, Esther M. Watkins, the appellant in this case, should have the net.income from all the rest, residue and remainder of the property owned by him at the time of his death, for, and during the term of her natural life. Part of the remainder of the property, owned by the testator at the time of his death, was a farm of 160 acres situated in Lee county, Illinois, which was occupied by the testator at the time of his death, and upon which there was then growing a crop of corn. This corn was later harvested by the executor of the estate, and the net proceeds therefrom, in the amount of $1,010.99, was collected by the executor, and held by him as a part of the residuary estate. The executor filed a report in the county court setting forth the items of receipt and expense, and among them this item of $1,010.99. Esther M. Watkins filed objections to the report, and insisted that the proceeds for the sale of the corn was no part of the estate, but belonged to her as income from the farm, as given her by the will of her father. The county court overruled her objections, and entered an order approving the report. From this order, an appeal was perfected to the circuit court of Lee county, and after a hearing- the circuit court entered an order overruling the objections of the appellant to the executor’s report, and allowed the executor of the last will and testament of the deceased to retain the proceeds of the sale of the corn. It is stipulated between the parties that at the time of the death of the testator, the corn was growing upon the premises devised to Esther M. Watkins, and that it was harvested after his death, and that the sum of $1,010.99 is the net proceeds that the objector, the appellant, claims she is entitled to receive. It is from the order of the circuit court approving the report of the executor, that the appeal is prosecuted to this court.

The only question on this appeal is whether or not the devisee of the net income from the real estate of her deceased father is entitled to the crops growing upon the premises at the time the will became effective, or whether it will become a part of the property which passed to the personal representative, and the life tenant’s interest be limited to the income therefrom. In Mather v. Mather, 103 Ill. 607, at page 613, it is stated: “So in this case a devise of the net income of his estate to his wife and children, during their lives, is a devise of the property to them during their lives. It is clear this was the intention of the testator, and without the aid of technical terms applicable to such matters, it is hardly possible that intention could have been more certainly expressed.” In the case of Mettler v. Warner, 243 Ill. 600, at page 610, we find the following: “It will be noted that by clause 6 of the will the executor is directed to take immediate possession of the real estate devised, and ‘manage, control, rent, cultivate, keep in repair and improve the same as he or they may deem advisable, ’ and after the expenses are paid the net proceeds and income from said real estate are to be paid to the children of the testator, or their descendants, in equal parts, per stirpes and not per capita. There is here an express devise to the testator’s children of all of the proceeds and income from the real estate. It is a well established rule that a devise of all of the rents and profits or income from real estate is a devise of the real estate itself.” Under the will of Clinton D. Ellsworth, deceased, we think it clearly shows that he devised to his daughter, Esther M. Watkins, a life estate in the 160-acre farm.

In the early case of Talbot v. Hill, 68 Ill. 106, it is held as between vendor and vendee, growing crops are real estate, and unless reserved, pass to the purchaser by a deed of the land, as being annexed to and forming a part of the freehold. This court, in an early opinion in the case of Pritchard v. Walker, 22 Ill. App. 286 held, that a devise of the rents and profits or of the income of the land, passes the land itself both at law and in equity, and that the tenant for life is entitled through his lawful representatives to the profits of the annual and growing crops as emolument. To the same effect is Sugden v. Beasley, 9 Ill. App. 71; Damiery v. Ferguson, 48 Ill. App. 224. This has been the established rule of law ever since the decision of these early, cases.

It is conceded that the corn growing upon the 160-acre farm had been planted and cultivated by the testator, but had not been harvested, or severed from the ground at the time of the testator’s death. It therefore was a part of the real estate, and under the will, passed to the devisee and became her property. The trial court erred in holding that the proceeds from the sale of this corn were a part of the estate of Clinton D. Ellsworth, deceased. The order appealed from is hereby reversed and the cause remanded.

Reversed and cause remanded.


author: Mr. Justice Dove

text:
    William Deutsche, Appellee, v. Whitaker Farmers Elevator Company, Appellant.
    Gen. No. 9,587.

      Opinion filed April 25, 1941.
    Eva L. Minor, of Kankakee, for appellant.
    W. H. Dyer, of Kankakee, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

Appellee, William Deutsche, is the owner of a farm located near Monee in Will county which he leased for the crop year beginning March 1, 1938 and ending March 1, 1939 to John Buss under a verbal agreement which provided that the landlord was to receive one half of the crops grown, and $4 an acre cash for pasture rent. The agreement also provided that the corn raised on the farm was to be, by the tenant, delivered at the elevator in Peotone and there divided.

Prior to March 7,1939, Buss had shucked 428 bushels of corn which was raised on this farm and which he had cribbed in a bin on the farm. On that day, he, Buss, without the knowledge or consent of appellee, shelled this corn and had it hauled to the elevator of the Whitaker Farmers Elevator Company located at Whitaker and received in payment therefor a check for $174.19 which he indorsed and. subsequently cashed. The manager of the Elevator Company was not acquainted with Buss and did not know that he lived on appellee’s farm but did know that the corn was raised on rented land and inquired of Buss whether there was any lien upon it and was told by Buss that there was not. The farm of appellee upon which this corn was raised is located about 3 miles north of Peotone where there was an elevator and grain market. The village of Manteno is south of Peotone about 3 miles and Whitaker, the place where the corn was delivered, is east of Manteno, and approximately 15 miles from the farm where the corn was raised. On the back of this check over Buss’ signature appears the following: “I hereby represent to the maker of this check that I am the sole owner of the grain or product in payment for which this check is issued, and there is no mortgage, landlord’s or other lien on such grain or. product.”

On April 15, 1939, appellee brought this suit before a police magistrate against the Whitaker Farmers Elevator Company which resulted in a judgment in favor of the company. Upon appeal to the county court of Kankakee county, a jury was waived and the cause submitted to the court for determination, resulting in a judgment against the defendant and in favor of the plaintiff for $174.19 and defendant appeals.

Counsel for appellant first insist that this is an action by a landlord against a purchaser of grain upon which he, the landlord, had a lien for rent, that such an action is in tort and under the statute the court in which this cause originated had no jurisdiction to hear and determine such an action.

Counsel for appellee relies upon section 16, subdivision 6 of chapter 79 — Ill. Rev. Stat. [Jones Ill. Stats. Ann. 71.012], which provides, among other things, that justices of the peace shall have jurisdiction in actions for damages for fraud in the sale, purchase or exchange of personal property. It is the contention of appellee’s counsel that appellant’s purchase of this corn was fraudulent and, therefore, under the provisions of this statute, the police magistrate did have jurisdiction.

Sullivan v. Board of Trustees, 265 Ill. App. 16 was a suit which originated before a justice of the peace and was brought by a landlord against the Board of Trustees of the University of Illinois who purchased some corn of plaintiff’s tenant, Matt Ohl. In the course of its opinion which affirmed the judgment of the trial court in directing a verdict of not guilty, the Appellate Court said: ‘1 The corn in question was the absolute property of Ohl. Of course, it was subject to a landlord’s lien for rent when such a lien should be enforced. It has long been held in this State that the remedy by a landlord for the impairment of his landlord’s lien resulting from the purchase by a third party of the property covered by the lien is an action on the case, that is, in tort. Finney v. Harding, 136 Ill. 573.”

Lawrence v. Elmwood Elevator Co., 258 Ill. App. 101 was an action brought by a landlord in the circuit court to recover from an elevator company the market value of corn sold the defendant by the tenant of the plaintiff. In its opinion the court said: “If a purchaser of crops knows that they were grown upon rented premises, he is put upon inquiry as to the landlord’s lien for unpaid rent. A landlord’s lien is not defeated by the tenant’s sale of the crop to a person who has notice. One who purchases grain from a tenant with knowledge that he is a tenant is not a bona fide purchaser, but takes subject to the landlord’s lien. (Citing cases.) Where one purchases from a tenant with knowledge of a lien, there exists a right of action in the landlord. Case is a proper remedy but it must appear that the property or its proceeds has been disposed of so that the lien cannot be enforced against either. (Nelson v. First Nat. Bank of La Harpe, 184 Ill. App. 349.) ”

Finney v. Harding, supra, was an action by a landlord to recover of a grain buyer the value of oats and corn raised by a tenant upon the landlord’s premises and sold by the tenant to the defendant. The court held that the landlord had no right of property in the crop sold and no right of possession and, therefore, no action could be maintained by the landlord, except an action on the case for a fraudulent act intended to impair the landlord’s security.

Counsel for appellee agree that case is a proper remedy but insist that it is not the exclusive remedy and call attention to the fact that in the instant case the record discloses that Ben Maass had been the manager for appellant for seven years, that he had never seen John Buss, the tenant, until the morning he purchased this corn, that at that time he knew the corn was raised on rented land 15 miles from the place where it was sold, and knew that the seller was a tenant and was moving away from the farm on which the corn was raised. From these facts counsel argue that appellant’s purchase of this corn ivas fraudulent and, therefore, clearly within the provisions of the subdivision of the statute upon which he relies.

In the instant case the sale of the corn was a transaction between appellant and appellee’s tenant. Appellee himself was not a party thereto. There is no contractual relationship existing between the parties to this suit. The fraud referred to in the provision of the statute relied upon by counsel for appellant is the fraud of the seller in an action brought against bim by the buyer while the instant suit is one to recover damages for the impairment of appellee’s lien. Furthermore, from this record it does not appear that appellant had disposed of -this corn or had mingled it with other grain at the time this suit was instituted. If it had not been disposed of or mingled with other grain, appellee could have enforced his lien, and under the authorities, if appellee could have enforced his lien a recovery for fraudulently impairing his lien as landlord could not have been had. Nelson v. First Nat. Bank of La Harpe, supra.

Under all the authorities, Buss, the tenant, had title to this corn, subject only to the landlord’s lien, and having title thereto had a right to sell and appellant had a right to buy. Appellee, the landlord, had a lien thereon but whether appellant, under the facts as they appear in this record, should be charged with notice of that lien and whether it was guilty of a fraudulent act intended to impair the landlord’s security, need not be determined in view of our conclusion that the judgment is not warranted by the evidence found in this record and that the court in which this proceeding originated did not have jurisdiction to hear and determine the controversy.

The judgment of the- county court of Kankakee county is reversed.

Judgment reversed.