author: Mr. Presiding Justice Matchett

text:
    The People of the State of Illinois ex rel. Dennis O’Connor, Plaintiff in Error, v. John Cole and Mary Cole, Defendants in Error.
    Gen. No. 29,501.
    1. Habeas corpus — final order in prior proceeding as bar to different disposition of subsequent proceeding. A final order denying the petition of a relator in habeas corpus proceedings is not a bar to an order granting his petition in a subsequent proceeding, where the circumstances controlling the right to the writ have changed in the interim.
    2. Habeas corpus — sufficiency of evidence to show change of conditions warranting grant of writ to relator previously denied relief. Evidence in habeas corpus proceedings to secure custody of the relator's daughter held to show such a change of the circumstances affecting the welfare of the child since the denial of a former application by the relator as to warrant a different order.
    3. Adoption of children — collateral attack upon adoption decree in habeas corpus proceedings to secure custody of child. If a county court had jurisdiction to enter a decree of adoption, the decree cannot successfully be attacked in habeas corpus proceedings by the parent to secure custody of the child, but if the county court was without such jurisdiction the decree was void and the relator is entitled to the custody of his child.
    4. Adoption of children — construction of authorizing statute. Since the proceeding by which a child may be adopted into a family other than that into which it was born is one wholly unknown to the common law, it is the duty of the court, in determining whether the jurisdictional provisions of the statute have been complied with, to apply a strict rule of construction.
    5. Adoption of children — necessity that child be made party. The provision of the statute (Cahill’s St. ch. 4, If 2) that all persons named in the petition for the adoption of a child shall be made defendants by name, etc., is mandatory, and refers to and includes the child who is the subject of the proceeding.
    6. Adoption of children — consent of natural parent as prerequisite to jurisdiction to decree adoption. Where the record of a proceeding for the adoption of a child affirmatively shows that the child’s natural parent was not in default of an answer in such proceeding, but did not appear and consent to the proposed adoption, the county court was without jurisdiction to enter a decree of adoption.
    Error by plaintiff to the Superior Court of Cook county; the Hon. Timothy D. Hubley, Judge, presiding. Heard in the first division of this court for the first district, at the October term, 1924.
    Reversed and remanded with directions.
    Opinion filed November 23, 1925.
    Houlihan & Michels, for plaintiff in error.
    Robert E. Hogan, for defendants in error.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

The relator, Dennis O’Connor, filed his petition for a writ of habeas corpus for the purpose of securing the custody and control of his daughter,' Frances Bernadette O’Connor, who is also known as Frances Bernadette Cole.

The child at the time of the hearing was about five years of age. The court entered an order directing that she should be remanded to the custody of John and Mary Cole and the writ dismissed. The trial judge intimated that the order would have been otherwise if he had not been precluded by a previous order entered upon a prior petition, which was also sued out by the relator, in which proceeding also the child was remanded to the respondents.

The court seemed to be of the opinion that Cormack v. Marshall, 211 Ill. 519, was controlling, and that under the rules of law as announced in that case the order in the former proceeding was a bar to the entry of any different order.

The cause is now before this court upon a rehearing granted upon the petition of the respondents, showing that through inadvertence they failed to appear in this court to sustain the judgment as entered. The questions involved are of great importance not only to the parties but to others in a similar situation, and to the general public.

We now think, as stated in the former opinion, that the trial judge misapprehended the rule stated in Cormack v. Marshall, supra. While it was there held that an order of a judge having jurisdiction in a proceeding of this sort is a final order and binding upon the parties, the rule is expressly stated to be final only “under the same facts and so long as the same conditions exist as did at the time of the hearing and order.” In the later case of Sullivan v. People, 224 Ill. 474, our Supreme Court expressed this limitation as follows:

“An order in an habeas corpus proceeding for the custody of a child is held to be final for the purpose of a writ of error only in the sense that the parties are concluded under the particular circumstances existing when the order is made. The order is final when pronounced but may not be final at any subsequent time, and its finality afterwards is to be determined, not from its character, but from extrinsic truth. If there is any change in the conditions and circumstances the order is not final or conclusive and the parties are free to try the issue again upon a second application.”

In the recent case of People v. Burr, 316 Ill. 166, the Supreme Court again stated the rule in substantially the same language, saying:

“The order is final when pronounced but may not be final at any subsequent time, and its finality afterward is to be determined not from its character but from extrinsic proof. If there is any change in the conditions and circumstances, the order is not final or conclusive and the parties are free to try the issue again upon a second application.”

This petition of relator was filed July 15,1924. His former petition was filed in the superior court of Cook county March 21, 1922, and the order remanding the child to the custody of respondents was entered on March 29, 1922.

The evidence shows that in several respects conditions had changed since the former hearing, and that the particular circumstances affecting the welfare of this child are not the same as the circumstances existing at the time the. former order was made.

The mother of Frances died February 2, 1922, at the home of the respondents where she went (taking the child with her) after some misunderstanding with the relator, her husband. The respondent, Mary Cole, at the time of the former hearing, was physically able to care for the child. The evidence discloses that she has now become a paralytic, walking with the assistance of a crutch or cane, and that she is able to move about the house only by the use of a wheel chair.

Again, the father of the child, Dennis O’Connor, has since the former hearing remarried, and the evidence, which is in part given by another daughter (a girl thirteen years of age who is living with him and his present wife), indicates this wife is an intelligent woman of good character, respected by her neighbors, kind and considerate to the two children by relator’s former marriage, and that she is willing to assist her husband in caring for and rearing this child.

It further appears from the evidence (and this without contradiction) that the respondent, John Cole, since the former hearing has refused the father permission either to see or to visit his child, and that in fact he on one occasion assaulted the father when he sought to do so.

Aside from the decree hereafter discussed, the evidence in this record also tends to show that the relator is an industrious man of good character; that he is providing a good home to which he is anxious to take his child, where she may grow up in association with his other children, and that she will be properly cared for therein. The change of circumstances, as shown by the evidence, were such that the trial judge was not, as he supposed, precluded by the former order from entering a different order in this proceeding.

The real defense set np, however, and the controlling question in the case is raised by the answer of respondent, John Cole, in which he claims the custody of the child under an adoption decree entered in the county court of Cook county after a full hearing. That decree was entered on November 28, 1922 (shortly after the first habeas corpus proceeding), and the question here is whether the county court had jurisdiction to enter that decree. If it had such jurisdiction, then the decree cannot be successfully attacked in this collateral proceeding. On the contrary, if it did not have such jurisdiction, the decree is void and the relator is without question entitled to the care and custody of his child.

The petition upon which the decree was entered was as follows:

In the County Court of Cook County “In re Petition of John Cole and Mary Elizabeth Cole to Adopt Frances Bernadette O’Connor.
“To the Honorable Judge of Said Court in Chancery Sitting :
“Your petitioners, John Cole and Mary Elizabeth Cole, his wife, of the City of Chicago, County of Cook and State of Illinois, respectfully represents unto the Honorable Court as follows:
“That they are husband and wife and reputable persons, and are now residents of the City of Chicago, County of Cook and State of Hlinois and have been such residents for several years last past.
“Your petitioners further show unto the court that Frances Bernadette O’Connor is a female child of about the age of two years, that the father of said child, Dennis O’Connor, abandoned the said child on the 29th of January, 1922.
“Your petitioners further show unto the court that the said Dennis O’Connor was guilty of extreme and repeated cruelty to the said child and for the reason of Ms depravity, he is unfit to have the care and custody of the minor cMM.
“Tour petitioners further show unto the court that Jennie O’Connor, the mother of the said cMM, is deceased, and your petitioners further show unto the court that they are related to the said cMld as uncle and aunt, your petitioner being the sister of the deceased mother, and the grandmother of the said cMld being willing that your petitioners adopt the said child.
“Tour petitioners further show unto the court that each and both of them are of sufficient ability to roar the said child and to furnish smtable nurture and education therefor, and it is fit and proper for the best interest of the said child that your petitioners adopt the said child according to the statute in such case made and provided.
“Tour petitioners therefore pray this Honorable Court by its decree to authorize and confirm the adoption of said Frances Bernadette O’Connor by your petitioners and that the said Frances Bernadette O’Connor be changed to that of Frances Bernadette Cole and that such other and further orders may be entered in the premises as to tMs court shall seem meet and proper.
“May it please your Honor to grant unto your petitioners the writ of summons in chancery directed to the sheriff of Cook County, commanding him that he summon the said defendant, Dermis O’Connor to appear before the said Court on the 6th day of May, 1922, at the Court House in the County of Cook, then and there to answer tMs petition.
John Cole
Mart Elizabeth Cole.
“John Cole and Mary Elizabeth Cole, after being first duly sworn on oath, deposes and says that they have read the foregoing petition by them subscribed, that they know the contents thereof, and that the same is true in substance and in fact.
John Cole
(Seal) Mary Elizabeth Cole.
Subscribed and sworn to before me this 17 of April, A. D. 1922.
Robert B. Hogan.”

The relator, Dennis O’Connor, answered, admitting the facts alleged as to the age, parentage, etc., of the child, but denying that he had abandoned her or that he was guilty of extreme and repeated cruelty, or that he was in any way unfit to have the care and custody of the child.

The decree recites that having heard the evidence in open court, the court finds:

“That the father Dennis O’Connor had abandoned the child and that Dennis O’Connor is a depraved person; that Jennie O’Connor, the mother, is dead; that said child is a female child of the age of two years; that its present name is Frances Bernadette 0 ’Connor ; that the petitioners John and Mary Cole are of sufficient ability to bring up the said child and furnish suitable nurture and education therefor; and that it is fit and proper that such adoption should be made, and for the best interests of the child. * * *
“It is therefore Ordered, Adjudged and Decreed, in accordance with the statute in such case made and provided, that from this date said child Frances Bernadette O’Connor shall, to all legal intents and purposes, be the child of the petitioners John and Mary Cole and for the purposes of inheritance and all other legal incidents and consequences, shall be the same as if she had been born to them in lawful wedlock.”

The proceeding by which a child may be taken out of one family and adopted into another is a proceeding wholly unknown to the common law. It is derived from the civil law and the proceedings are wholly statutory.- The statute forms the subject matter of chapter 4 of the Bevised Statutes. See Smith and Hurd Rev. St. 1923, pp. 25-26 [Cahill’s St. ch. 4],

It has been held by the Supreme Court that this statute must be strictly construed. In Keal v. Rhyderck, 317 Ill. 231, that court says:

‘ ‘ The adoption proceeding being statutory, the validity of a decree of adoption depends upon the compliance with every essential requirement of the statute authorizing it. (In re Sharon’s Estate, 179 Cal. 447, 177 Pac. 283.) Being in derogation of the common law, the statute conferring the right of adoption must be strictly construed. (Watts v. Dull, 184 Ill. 86.) * * * The attack made on the proceedings to adopt the child being collateral, the only inquiry proper to be made is whether the county court had jurisdiction to enter the decree. Before the decree can have vitality the court must have jurisdiction of the subject matter and of the person. (Rabbitt v. Weber & Co., 297 Ill. 491.) Where a court is exercising a special statutory jurisdiction the record must show upon its face that the case is one where the court has authority to act. Jurisdiction in such cases is never presumed, and if it does not appear the judgment will be void and subject to collateral attack. (Rice v. Travis, 216 Ill. 249; Payson v. People, 175 Ill. 267; Haywood v. Collins, 60 Ill. 328.) Whatever the rank of the court exercising a special statutory jurisdiction, it is governed by the same rules as courts of limited jurisdiction.”

In the yet more recent case of Musselman v. Paragnik, 317 Ill. 597, our Supreme Court said:

“The petition required to put the court in motion and give it jurisdiction must be in conformity with the statute granting the right and must show all the facts necessary to authorize it to act.”

The provisions of the statute must therefore be in every material respect complied with, and in determining whether the proceedings do so comply, it is the duty of the court to apply a strict rule of construction.

The requirements of a proper petition are set forth in section 2 of the statute, supra. It provides that the petition shall state one or more causes of adoption, the name, if known, the sex, the approximate age of the child sought to be adopted, and if it is desired to change the name, the new name, and either the name, or that the name is unknown to petitioner (first) of the person having the custody of such child, and (second) of each of the parents or of the surviving parent of a legitimate child or of the mother of an illegitimate child; or (third) if it allege that both such parents are or that such mother is dead, then of the guardian, if any, of such child; or (fourth) if it allege that both such parents are, or that such mother, is dead and that no guardian of such child is known to petitioner, then, of a near relative, or that none such is known to petitioner.

That section of the statutes also provides that the petition shall state “the residences of such parties, so far as the same are known to such petitioner. All persons so named in such petition shall be made defendants by name and shall be notified of such proceedings by summons, if residents of this State, in the same manner as is now or may hereafter be required in chancery proceedings by the laws of this State, except only that the summons shall be made returnable at any time within twenty days after the date thereof.”

Even a slight examination of this petition discloses the significant fact that the child is not named as a defendant, and that the petition fails to show any request that any person should be named as guardian ad litem for her or to represent her interests.

According to usual practice in courts of law, she could not be deprived of any property right in a proceeding to which she was not a party and in which she was not represented; and it is difficult indeed to understand on what theory she can be deprived of rights which are even more fundamental without being made a party thereto. We think the provision of the statute, “All persons so named in such petition shall be made defendants by name,” etc., is mandatory and that it refers to and includes the child who is the subject of the proceeding.

A more difficult question arises when we come to a consideration of the interpretation of the provisions of section 3 when applied to this proceeding. The record affirmatively shows that Dennis O’Connor, the father of the child, was not in default of an answer and that he did not appear or consent to the supposed adoption. The language of section 3 [Cahill’s St. ch. 4, ft 3] is that: “On default of answer of all the defendants, the court shall proceed to hear evidence, and if the court shall find,” etc., then a decree of adoption shall he made. It is the contention of the relator that this section properly construed shows the county court of Cook county without jurisdiction; that it could only hear evidence and enter a decree of adoption in a case of default, and that it was therefore without jurisdiction because the parent appeared and withheld his consent.

When we consider the profound effect upon the rights of the parties in interest, it does not seem unreasonable that this section should be so construed. True, the further provisions of the statute indicate an intention to grant to the court power to find that the parent was unfit for the reasons enumerated in the statute; but this is not inconsistent with the construction for which relator contends, which is that if the parent is unfit in any" of the ways enumerated, and also defaults, then the court has jurisdiction to deprive the parent of his natural right to his child, but that if he does not so consent then the court is without jurisdiction.

Of course the question of the right of adoption is easily distinguished from the right to custody, and any court of chancery has on well-recognized grounds jurisdiction to take from the parent the custody of his child in ease he or she is found unfit to have it. Custody, however, is one thing; the right of adoption, which changes the course of inheritance, deprives the child of the place in which it was placed by nature, and by force of law thrusts it into another relationship, is another and very different matter.

Elementary rules in the construction of statutes are that the object is to find the legislative intent; that the intention must be found in the words of the statute. An examination of this particuar statute indicates that the use of the word “of” in the first clause of section 3 was not by an inadvertence. If it had been the intention of the legislature to grant to the county court jurisdiction to enter a decree of adoption as against the wish of an unwilling parent, that result might have been easily affected by the substitution of the word “or” for the word “of” in the first clause of the sentence.

It has been often pointed out that it is not the duty of courts to make law but to interpret it; and in the interpretation of statutes the rules which we have pointed out are fundamental. It is also not improper, in arriving at the true interpretation, to consider whither the contrary interpretation will lead and what its effect will be. It is significant, we think, that in providing for this statutory proceeding, unknown to the common law, no review by writ of error was provided. The legislature also failed to provide for review by appeal. It has been held in well-considered cases (see Meyers v. Meyers, 32 Ill. App. 189; In re Warner’s Petition, 193 Ill. App. 382; Holman v. Brown, 215 Ill. App. 247) that such decrees are not subject to review by either method.

It is hardly to be thought that the legislature would provide a procedure by which, without the right of trial by jury and without the right to a review of the evidence by a higher court, a parent could, as against his will, have his child taken from him and given to another. The evidence in the record before us indicates that is precisely what has been done in this proceeding. Other than the findings of the decree which are so general in their nature as to leave us unconvinced, there is uncontradicted evidence in this record indicating that this father loves and cares for his child, has provided a good home for her where he desires she may be allowed to grow up with her sisters; that he is a frugal, industrious man, worthy of. the confidence and respect of the community; yet the law has taken his child from him against his earnest protest.

It is contended by the respondents that another division of this court, upon a similar state of facts, has decided directly the contrary in People v. Fahey, 230 Ill. App. 143. In considering that decision, however, certain facts which distinguish the record there considered from the one now before us should be pointed out. In the first place, the defendant in error in that case did not appear to support the judgment of the trial court, and the case was heard and decided on an ex parte hearing. The question of the construction of section 3 does not appear to have been presented to the court and did not receive consideration in its opinion. The petition and the decree upon which the court acted in that case are not set up at length. It does appear that no guardian ad litem was appointed to represent the child, and the court in its opinion indicates that while that was error, had the decree been attacked on appeal or by writ of error, failure to appoint a guardian ad litem would not subject the decree to collateral attack. Apparently it was not called to the attention of the court that such a decree was not, under our practice, subject to review either by appeal or writ of error.

Presumably the child was in that case made a defendant to the proceeding. A collateral matter arising out of that case was considered by the Supreme Court in People v. Burr, 316 Ill. 166, but the points which have been argued here do not seem to have been presented there. As is said in 1 Corpus Juris, p. 1384: “Consentlies at the foundation of statutes of adoption, and, if they require it to be given, the jurisdiction of the subject matter cannot be acquired without it. Where certain facts obviate the necessity of consent, the existence of those facts must be shown.”

Our conclusion is that the decree of the county court upon which respondents rely is subject to collateral attack and is void for the reasons that the court was without jurisdiction to enter it. The judgment will therefore be reversed and the cause remanded to the superior court with direction to enter an order remanding the child, Frances Bernadette O’Connor, to the custody of her father, Dennis O’Connor.

Reversed cmd remanded with directions.

McSurely and Johnston, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Royal Manufacturing Company, Plaintiff in Error, v. Garfield Sanitary Felt Company, Defendant in Error.
    Gen. No. 30,010.
    1. Trial — right of defendant to move for judgment non obstante veredicto. A judgment for the defendant entered upon an order granting the motion of the defendant for judgment non obstante veredicto must he reversed, since such a motion could not appropriately he made by a defendant.
    2. Appeal and error — necessity for remand on reversal of judgment entered upon order erroneously granting defendant’s motion for judgment non obstante veredicto. Where judgment is entered for defendant upon an order erroneously granting his motion for a judgment non obstante veredicto, the reviewing court may not enter judgment on the verdict, but must remand the cause in order that the defendant may renew his motion for a new trial.
    Error by plaintiff to the Municipal Court of Chicago; the Hon. Daniel P. Trude, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1925.
    Reversed and remanded with directions.
    Opinion filed November 23, 1925.
    Solberg, Hummeland & Winslow, for plaintiff in error; A. J. W. Appell, of counsel.
    Lewis, Adler, Lederer & Kahn, for defendant in error.
   Mr. Presiding Justice Matchett

delivered the opinión of the court.

Plaintiff below is the plaintiff in error here. In a suit for goods sold and delivered there was an affidavit of merits, trial by jury and verdict for plaintiff. Defendant made a motion for a new trial, which was withdrawn, and it then moved for judgment non obstante veredicto, which was granted.

It is conceded this was error, for the reason that the motion could not be appropriately made in behalf of a defendant, and that the judgment must be reversed for that reason. Tribune Co. v. Dunlap Mfg. Co., 201 Ill. App. 408.

The plaintiff says, however, that judgment should be entered in this court on the verdict, while defendant urges that the cause should be remanded in order that the motion for a new trial may be renewed. We hold the cause must be remanded for the reasons stated in Stein v. Chicago & Grand Trunk Ry. Co., 41 Ill. App. 38, and Teehan v. Union Bridge Co., 84 Ill. App. 532.

Plaintiff says the opinions in these cases purport to follow Quick v. Indianapolis & St. L. Ry. Co., 130 Ill. 334, and that no motion for judgment non obstante veredicto was involved in that case. This is true, but the question there as to the entry of judgment on the special findings of a jury was analogous.

Plaintiff cites Mahoney v. St. Paul City Ry. Co., 140 Minn. 516; Pine Tree Lumber Co. v. City of Fargo, 12 N. D. 360; Henry v. Heilman Bros., 114 Pa. St. 499. The Minnesota and Dakota cases were apparently decided under provisions of the Codes of Practice in those States. Cruikshank v. St. Paul Fire & Marine Ins. Co., 75 Minn. 266. An examination of the Pennsylvania case indicates that in that jurisdiction, unlike ours, the motion for a verdict non obstante veredicto may properly be made in behalf of a defendant. The practice in the States is divergent. Illinois adheres to that of the common law, which is, we think, consistent and logical.

The judgment is reversed and the cause remanded* with directions to entertain a motion for a new trial if one shall be made; otherwise, to enter judgment on the verdict.

Reversed cmd remanded with directions.

McSurely and Johnston, JJ., concur.


text:
    Charles R. Gold, Appellee, v. J. Rousso and Samuel Wolf, Appellants.
    Gen. No. 30,210.
    1. Harmless and prejudicial error — admission of improper evidence where trial to court without jury. It is not reversible error that on the trial of a case to the court without a jury improper evidence was admitted, where there is evidence in the record which will sustain the finding made by the court.
    2. Bailments — admissibility of lease to defendants as evidence as to identity of persons operating restaurant check room. In an action for the loss of an overcoat alleged to have been checked with defendants as operators of a restaurant check room, held that a written lease whereby that part of the premises used as a check room was demised to the defendants was admissible as evidence on the issue whether the defendants were operating the check room at the time in question.
    3. Bailments — sufficiency of evidence to show defendants were operating restaurant check room. Evidence in an action for the loss of an overcoat alleged to have been checked with defendants as operators of a restaurant check room, held sufficient to sustain a finding that the defendants were operating the check room at the times in question.
    4. Evidence — admissibility of testimony characterizing document not offered in evidence as check. It was not error to permit a witness to describe a document which she received as office manager as a check, although the instrument itself was not offered in evidence.
    5. Evidence — admissibility of testimony by office manager of lessor that checks received by her from lessees were for rent. It was not error to permit the office manager of lessors of a restaurant check room to testify that cheeks received by her from the lessees were for rent, where the question whether the checks so received were given for rent was not an ultimate question of fact in the case.
    6. Evidence — sufficiency of foundation proof for admission in evidence of written lease. In an action for the loss of an overcoat alleged to have been checked with defendants as operators of a restaurant check room, proper foundation was laid for the admission in evidence of a written lease to defendants of that part of the premises used as a check room by testimony of the lessor’s office manager that she had received from defendants checks in payment of rent, the suit not being based upon the lease nor upon a violation of any of its covenants.
    7. Damages — sufficiency of evidence as to value of overcoat lost from restaurant check room. Testimony by the owner of an overcoat lost from a restaurant check room as to the amount which he paid therefor to the tailor who made it to his measure from materials of his selection, held prima facie evidence of its value and not overcome by testimony as to the cost .of making overcoats at the times in question of the retail value of coats of that style.
    8. Damages — measure of value of second-hand wearing apparel. The rule that proof of the market value of personal property alleged to have been negligently lost is essential to a recovery therefor has no application to the loss of a used article of personal apparel.
    Appeal by defendants from the Municipal Court of Chicago; the Hon. John P. Haas, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed November 23, 1925.
    Church, Haft & Robertson, for appellants.
    No appearance for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

The defendants appeal from a judgment in the sum of $100 entered upon the finding of the court.

The statement of claim alleged that on February 3, 1924, the plaintiff was at the Mandarin Inn; that upon entering the place at that time he checked his overcoat with the defendants,' paid the customary fee therefor and received a check; that the overcoat was of the value of $125; that he presented the check and requested the return of the overcoat and was informed by the checker in charge that the overcoat had been lost or mislaid; that he had requested the defendants to make good the loss, which defendants failed to do.

Attached to the statement of claim was an affidavit of claim in which it was alleged that the suit was upon contract for the payment of money, and that the nature of plaintiff’s demand was as stated, and that there was due, after allowing just credits, deductions and set-offs, the sum of $125.

The defendants filed an affidavit of merits, in which they denied that plaintiff was a guest at the Mandarin Inn on February 3, and denied that he had checked his overcoat with the defendants or either of them, or that he paid the customary, fee or any fee to them or either of them, or that he received a check from the defendants, or either of them, as evidence of checking his overcoat. Defendants further denied that the overcoat was of the value of $125, or that the plaintiff upon leaving the Mandarin Inn requested the defendants, or either of them, to return his overcoat, and denied that plaintiff was at any time informed by any checker in charge that his overcoat had been lost or mislaid. Plaintiff has not appeared in this court to support the judgment.

The first error assigned and argued by defendants is the admission of improper evidence. However, as the trial was by the court without jury, this granted would not be reversible error, provided there is evidence in the record which will sustain the finding made by the court.

The defendants contend that improper evidence was received upon the issue as to whether the defendants were in fact at the time in question operating the check room in the Mandarin Inn, and particularly complain of the introduction in evidence of a written lease, whereby that part of the premises in which the check room was operated was demised to the defendants.

The affidavit of merits did not deny that defendants were operating the check room at the time in question. Moreover, after a careful consideration of all the evidence, we hold the lease was properly admitted in evidence. We think, too, there was sufficient evidence (other than the lease) to sustain a finding that defendants were operating the check room.

The manager of the Mandarin Inn testified that his business was managing the resturant known as the Mandarin Inn; that there was a place there to check wearing apparel but that it was not operated by him and did not belong to the restaurant; that there was a check room in the restaurant operated in the premises conducted by the Mandarin Inn, and that there was a lease out, a concession for it; that his private secretary, Miss O’Farrell, conducted the affairs of the Mandarin Inn, and that she was then present.

Miss O’Farrell testified that she was the secretary and bookkeeper at the Mandarin Inn; that she knew the place where the garments were checked in the Inn, and that it was not operated by the Mandarin Inn; that that space had been rented to someone else; that in response to a subpoena duces tecum she had brought the lease along, which she produced; that she did not know the signature of Clifford Wolf, by whom the lease purported to be executed in behalf of defend-, ants; that she knew the party, Sam Wolf. The lease was thereupon marked for identification as plaintiff’s Exhibit A.

Further, Miss O’Farrell said that she knew who was operating this check room in February, 1924, and in response to the question by plaintiff’s counsel, “Who was?” she answered, “Rousso and Wolf.” She was asked on cross-examination whether she had ever seen Jack Rousso doing anything in connection with the check room and she replied that she saw Sam Wolf but that she did not see Jack Rousso working in the check room, but she knew that he was connected with the check room; that Sam Wolf had been to the Mandarin Inn and had been in the check room; that she did not see him directing the girls because he did not do that.

On redirect examination Miss O’Farrell was asked if she had been receiving any checks from Rousso and Wolf at any time, and she replied that she had, and the answer was allowed to stand over defendants’ objection. She further said that she knew what the checks were for: that they were for the rent, the concession of the check room. The defendants moved to strike out the answer but it was allowed to stand. She further testified that she received these checks twice a year, and the answer was allowed to stand over defendants’ objection.

We think it is apparent that the question of whether the lease was admissible depends upon whether the court erred in receiving this testimony. Defendants say that it was error to permit Miss 0 ’Farrell to characterize the documents which she had received as checks, and that this permitted her to indirectly state the contents of these documents, contrary to the rule laid down in Rawson v. Curtiss, 19 Ill. 473. The instrument of which evidence was given in that case was denominated a letter of credit, a writing the contents of which were by no means so certain or well known in the business world as are the contents of a check. We can see no more reason why a witness should not be permitted to state that she received a check, in the absence of it, than to state that she received a book or any other object not produced.

It is also contended that it was error for the court to permit this witness to testify, in the absence of the checks, that the checks received were those of the defendants; and it is argued that in so doing she was allowed to testify to the authenticity of the signatures of Rousso and Wolf without showing that she knew anything about their signatures. She was not, however, questioned on this, and if it were in fact true that she was unacquainted with the signatures of Rousso and Wolf, that matter could have been easily determined upon cross-examination.

It is also argued that it was error to permit her to testify that the checks were for rent and that the witness was thus permitted to state her conclusion as to the purpose for which the cheeks were given. A witness should not be permitted to testify to any conclusion on the issue to be submitted to the court or jury, but the question of whether those checks were given for rent was not an ultimate question of fact in the case; and here again, if the witness was testifying without knowledge as to what the checks were in fact given for, that fact could have been disclosed upon cross-examination. Every statement of fact is in one sense a conclusion of the person making it.

We think the evidence of Miss O’Farrell was properly received and that it laid the foundation for the introduction of the lease. The. suit was not based upon the lease or for a violation of any of its covenants, and it was therefore not absolutely necessary that the execution of it by defendants should be proved. If defendants recognized it by the payment of rent thereunder, that was sufficient.

It is to be noted that not only did the affidavit of merits fail to deny that defendants were operating the check' room at Mandarin Inn, but no evidence was offered by them tending to show the contrary, although such evidence, if it existed, was necessarily in their power to produce.

The defendants, however, further contend that there was no evidence to sustain the finding of the court as to the amount of the plaintiff’s damages.

The evidence of plaintiff on this point was to the effect that he was forty years of age, had been buying clothes ever since he was fifteen years of age; that he knew the fair and reasonable prices of wearing apparel when he went to buy clothes for himself not only in Chicago but in different parts of the country; that the lost overcoat was made to his order by a tailor named Silverstein, and that it was made from measurements taken of the plaintiff; that it was a gray, medium colored gray, worsted coat of medium weight, with raglan sleeves, imported, and silk lined; that the material in the coat was selected by him, and that he paid Silverstein, the tailor, $125 for the coat.

Plaintiff’s evidence further was to the effect that the coat was made for him in the latter part of November, 1923; that he had not worn it more than five or six times; that he kept it for use as a Sunday coat.

On the question of value the defendants produced a witness, one Horwitch, who testified that he was familiar with the reasonable values of overcoats in the City of Chicago for six years last past, both the retail and wholesale values, and also to a certain extent with the values of such goods after the same had been used. In reply to a hypothetical question he stated that in his opinion the overcoat was worth considerably less than $125. In response to questions by the court he said that the cost of the silk lining in the coat including the lining in the sleeves that would fit plaintiff, of the average quality that was usually put in overcoats, would cost from $10 to $30, depending on the quality of the silk; that the cloth and workmanship determined the value of an overcoat, and that an overcoat could be made for as low as $8 and for as high as $50; that a raglan sleeve overcoat was a drug on the market; that in the prior year, the early part of the season, they had been in good demand, but that overcoat dealers were trying to unload the same at fifty cents on the dollar, below actual cost.

The defendants contend that this evidence does not tend to show what the value of the coat was on February 3, 1924. With other cases Barrett v. Van Pelt, 45 Sup. Ct. Rep. 437, is cited. The question there involved concerned the value of eggs, and the court held that the proof of the market value of eggs at the date the same were delivered to the consignee was essential to the respondent’s case, and that in the absence of this evidence the amount of the loss, if any, could not be determined.

The rule for which defendants contend is applied to ordinary articles of merchandise, the market cash price of which at any given time can be easily ascertained.

It is apparent, however, that the value of a used article of personal apparel cannot thus be proved. The rule plainly cannot be applied to determine the value of a made-to-order overcoat which has been slightly used. The law does not require better evidence than can be reasonably obtained, and we do not know of better evidence of the value to an owner of a secondhand, made-to-order overcoat than the price paid for it within a reasonable time of the date upon which the value is to be ascertained.

Such a sale of property of uncertain value is evidence so persuasive that the opinion of experts, as compared therewith, has little if any weight. What evidence, it may be asked, could have given the court better information as to the actual loss which plaintiff sustained? An1 analogous question was considered by the third division of this court in Cloyes v. Plaatje, 231 Ill. App. 183, with reference to the value of repairs made on an automobile. The court reviewed conflicting authorities and quoted with approval Budd v. Van Orden, 33 N. J. Eq. 143, where that court says: “The only absolute test we can have of the value of a merchantable article is what it has been sold for at a fair sale. All other means of ascertaining the value of a merchantable commodity are speculative and must, to a greater or less extent, be uncertain. A sale is a demonstration of the fact, while estimates, even by the best judges, are simply matters of opinion which, at best, are only approaches to the fact.” The court therefore held that evidence of the amount paid by the plaintiff to the garage proprietor for repairing his automobile, which had been damaged in a collision with the automobile of the defendant, was presumptive evidence of the reasonable value of the repairs, the repairing being done by a regular garage man engaged in the repair business and there being nothing in the evidence to cast suspicion on the good faith of the plaintiff and the garage man.

We adhere to the law as there stated, notwithstanding Probasco v. Crane Co., ante, p. 287. We think the price actually paid for this overcoat was prima facie evidence of its value, and the prima facie showing was not overcome by other evidence.

The judgment is affirmed.

Affirmed.

McSurely and Johnston, JJ., concur.


author: Mr. Justice McSurely

text:
    Mamie Benza, Appellee, v. New Era Association, Appellant.
    Gen. No. 30,038.
    1. Saving questions fob review — exception as prerequisite to review of order sustaining demurrer to plea. The fact that no exception was taken to a ruling of the court sustaining a demurrer to a plea does not preclude a review of alleged error in such ruling, the pleadings being a part of the law record.
    2. Fraternal beneficiary associations — law of domicile as controlling validity of by-law. The asserted rule that the beneficiary of one becoming a member of a fraternal association in a State other than that of the association’s domicile cannot recover on the insurance contract in violation of a by-law valid under the laws of the domicile has no application in the absence of proof that the courts of the domicile have upheld the validity of the identical by-law.
    3. Fraternal beneficiary associations — validity of by-law making approval of tribunals of association a condition precedent to liability under insurance contract. A by-law of a fraternal benefit association requiring the beneficiary of a life insurance contract issued thereby, to submit his claim on appeal to tribunals created or controlled by the association, whose adverse decisions must be accepted as final, held not enforceable as a bar to an action at law on the contract.
    Appeal by defendant from the Superior Court of Cook county; the Hon. John J. Sullivan, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed November 23, 1925.
    Musgrave, Oppenheim, McKeever & Lippincott, for appellant.

      Edward H. Taylor, for appellee; James H. Mahoney, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal by the defendant from a judgment of $2,000 entered upon a directed verdict in a case where the plaintiff claims as a beneficiary under a policy of life insurance issued to her son, Frank Benza, by the defendant. There is no controversy as to the death of the insured nor as to proofs thereof.

The decisive question relates to the ruling of the court sustaining a demurrer to the defendant’s additional plea, which alleged that it is a fraternal benefit association, incorporated under the laws of Michigan; that on June 6, 1919, Frank Benza made written application for membership, in which he agreed that the application, together with the by-laws of the defendant association then in force, should be the sole basis of his admission in the defendant association; that at the time there was in effect, a by-law providing that the cabinet of said association should have power to pass upon all death claims, and if it held such claim invalid should notify the claimant and give her an opportunity to appear before the cabinet within sixty days and present evidence to establish the validity of such claim; that the decision of the cabinet would be final unless an appeal was taken, in which case the claimant should have an option within thirty days after notice of such action to appeal to a board of arbitration of five members, two of whom were appointed by the cabinet, two by the claimant, and these four to appoint a fifth member; that should the claimant be dissatisfied with the finding of the board of arbitration or should it fail to reach an agreement, such claimant may appeal to the senate. The by-laws further provided that unless such appeal was taken no suit at law or in equity should be commenced or maintained by any member or beneficiary against the association on account of any benefit certificate issued, unless the claim sued upon has been allowed by the cabinet or the board of arbitration or the senate; that the beneficiary, the plaintiff herein, presented her claim to the defendant association, and it was duly submitted to the cabinet, which found that said claim was invalid and so notified the claimant, but she failed to appear before the cabinet to present evidence to establish the validity of her claim, and that said cabinet has decided that such claim is invalid and rejected the same; that no appeal has been taken from this decision of the cabinet and that it is a final adjudication according to the contract of the parties.

A demurrer to this plea was sustained, and no exception to the ruling of the court was taken. Plaintiff now argues that without such an exception alleged error in the ruling of the lower court cannot be raised for the first time on appeal. The pleadings are part of the law record, and any alleged error in rulings thereon is reviewable without exceptions. Bennett v. Union Cent. Life Ins. Co., 203 Ill. 439; People v. Powell, 274 Ill. 222.

Citing Modern Woodmen of America v. Mixer, 45 Sup. Ct. Rep. 389, the point-is made that the validity of such a by-law is governed by the law of the State where the association is incorporated, and the beneficiary of one becoming a member in another State cannot recover in violation of a by-law held valid in the State of the association’s domicile. In the instant case the domicile of the defendant is Michigan, while the application was made in Illinois, the residence of the insured and of the beneficiary.

We cannot apply this decision for the reason that it is not shown that the courts of Michigan have pronounced the by-law in question valid. No attempt was made upon the trial to prove the laws of Michigan or any decisions of its courts. Schlee v. Guckenheimer, 179 Ill. 593; Forsyth v. Barnes, 228 Ill. 326.

We are referred in the brief to Monger v. New Era Ass’n, 171 Mich. 622, which is said to uphold these by-laws. Assuming that the association in that case is identical with the one before us, yet we cannot say from the language of the opinion that the by-laws there considered are the same as those set forth in the plea filed in the instant case. Indeed, they appear to be different, as shown by the excerpts in the Michigan opinion. Therefore, in the absence of any showing that the Michigan courts have upheld the validity of the identical by-laws here under consideration, we are free to construe them in accordance with the decisions of our own State and with due regard for the principles of justice.

In the recent case of Kelly v. Brotherhood of Railroad Trainmen, 308 Ill. 508, it was noted that the courts differ in regard to enforcing those provisions of the contract or by-laws which malee the approval of the tribunals of the association a condition precedent to liability, and indicates that the question has not been determined in this State.

Counsel have presented to us a number of decisions in this State in support of their respective claims for and against the validity of such by-laws. We have examined these cases and do not find any of them precisely in point. For instance, in People v. Order of Foresters, 162 Ill. 78, the opinion says that, where the beneficiary of a deceased member claims money due from the society on its contract of insurance, “the right to resort to the courts to coerce payment will not be abridged by the right of appeal from a lower to a higher tribunal of the society, as conferred by its laws and rules.” But this statement was clearly obiter dictum, as the question there related to the judgment of expulsion of a member.

In Timmerhoff v. Supreme Tent of Knights of Maccabees, 155 Ill. App. 395, provisions somewhat similar were held valid, but one of the grounds for so holding was that the provisions in the by-laws with reference to appeals to tribunals gave the claimant the right to prosecute his claim in the courts, which is not this case.

In Railway etc., Conductors’ etc., Ass’n v. Robinson, 147 Ill. 138, the court construed the by-law to limit the power of the board of directors to render final decisions to those questions arising from the examination of the books and accounts of the association and in ascertaining that the business was properly conducted.

All of the other cases cited could thus be readily distinguished from the case before us, which, in its simplest elements, involves the enforceability of a by-law requiring a beneficiary to appeal to the tribunals created or controlled by the organization, whose adverse decisions must be accepted as final, thus depriving the claimant of recourse to the courts.

We conclude that upon principles of justice such provisions cannot properly be pleaded as a bar to an action at law to enforce this claim. Running all through the decisions in this State and elsewhere are found expressions indicating, at least, a strong hostile attitude towards the enforcement of provisions like these.

“Courts of justice are freely open to those who seek money due them on a contract.” Niblack on Benefit" Societies, 2nd Ed., sec. 313.

“While beneficial associations may require members to resort to tribunals within the order for the settlement of controversies and may exhaust such remedies before proceeding at law, they may not, directly or indirectly, wholly deprive members of the right to invoke the aid of the courts.” 7 C. J., p. 1122.

It does violence to one’s sense of fairness and justice to leave to one of the parties to a contract the sole and final decision as to whether or not the contract has been breached. This would be an invitation to the exercise of power arbitrarily to deprive the other contracting party of his property rights. Neither party should have such power, but should be allowed to adjudicate their differences in the courts. It is not satisfactory to say that these are voluntary fraternal organizations and it is competent for the members to agree among themselves that the decision of its tribunal shall be final as to all claims of its members. We can hardly conceive that one would join an organization if he knew that its tribunals would have final and arbitrary power to deprive him of all his property rights under the contract.

A sound distinction is made between those by-laws relating to the discipline, policy or administration of such an organization and those by-laws which attempt to deprive a member of his right to resort to the courts to enforce a claim for money due on the contract.

We are of the opinion that these by-laws are not enforceable in a case of this kind and that the trial court rightly sustained the demurrer to the additional plea, and as the judgment properly followed it is affirmed.

Affirmed.

Matchett, P. J., and Johnston, J., concur.


text:
    Harry A. Satin, trading as H. A. Satin & Company, Appellee, v. Twin City Fire Insurance Company of Minneapolis, Minnesota, Appellant.
    Gen. No. 30,060.

      Judgments — affidavit challenging validity of service of summons as basis for motion in nature of writ of error coram nobis. An affidavit stating facts impeaching the validity of the service of the summons in an action against a foreign corporation on the ground that the plaintiff fraudulently. procured the summons to be served upon a person as agent of such corporation, who was not an agent thereof, forms no basis for a motion under section 89 of the Practice Act, Cahill’s St. ch. 110, V 89, in the nature of a writ of error coram nobis, to vacate the judgment founded upon such service.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Samuel H. Trude, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed November 23, 1925.

      Theodore Johnson, for appellant; Elmer H. Heitmann, of counsel.
    Wolfsohn & Fireman, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendant seeks the reversal of an order of the municipal court of Chicago denying its motion to quash the return of service of summons and to vacate the judgment rendered against it for $2,700.

The return made by the bailiff of the municipal court indorsed on the summons recites that the summons was served on J. D. Martin, agent of the corporation, “The President, Clerk, Secretary, Superintendent, General Agent, Cashier, Principal, Director, Engineer, Conductor, or any other agent of said corporation not found in the City of Chicago.” The defendant not appearing, judgment against it was entered by default on October 15, 1924. After the term had expired and on November 22, defendant filed a special appearance and moved to vacate the default and judgment and to quash the return of the service of summons.

By affidavits defendant alleged in substance that defendant is a corporation organized and existing under the laws of Minnesota; that George L. Martini is its general agent in Illinois; that the Illinois office of defendant is at 166 West Jackson boulevard in Chicago; that its name and address appear in the telephone directory; that J. D. Martin, named in the return as the agent of defendant, has an office at 175 West Jackson boulevard; that the name of this defendant does not appear on the windows, doors, or on any sign in connection with said office; and that said Martin was not the agent of the defendant in any capacity whatsoever.

A notation on the summons indicates that it should be served on Martin, and defendant’s affidavits state that plaintiff fraudulently caused the summons to be served on Martin, although he knew, or by reasonable diligence might have known, the correct office address of the defendant, and that Martin was not the agent of the defendant in any capacity whatsoever.

Taking the allegations of the affidavits as true, the question presented is, can the trial court vacate a judgment upon motion made under section 89 of the Practice Act [Cahill’s St. ch. 110, [[89] in the nature of a writ of error coram nobis, after the term at which judgment was entered, upon the ground that plaintiff fraudulently procured the service of the summons upon a person as agent of defendant, who was not an agent, and such service is void.

It is stated that the trial court denied the motion under the authority of Chapman v. North American Life Ins. Co., 292 Ill. 179, and Marabia v. Mary Thompson Hospital, 309 Ill. 147.

As we construe the decisions in these cases, the action of the trial court was proper. They clearly define the kind of facts, relating to the defendant, which are grounds for an after-term vacation of a judgment upon such a motion; as where the nominal defendant was dead, or an infant without guardian, or a person insane at the time of trial. Such facts must relate to the disability of the nominal defendant to defend. This was the rule under the old writ of error coram nobis and still controls. Pacts relating to the validity of the service of summons are held not to be a basis for the motion. These decisions and what is said in the opinions must be taken as conclusive of the question before us. Defendant’s remedy was either a suit against the bailiff for making a false return, or a proceeding in chancery, or by petition to the municipal court under section 21 of the Municipal Court Act, ch. 37 [Cahill’s St. ch. 37, [[ 409].

The judgment of the trial court is affirmed.

Affirmed.

Matchett, P. J., and Johnston, J., concur.


text:
    A. C. Wehrwein, Appellee, v. Eastman Springs Beverage Company et al., Appellants.
    Gen. No. 30,155.
    1. Corporations — presence of fraud as condition of liability for sale of stock of foreign corporation not complying with requirements of Securities Law. The facts that the agents of a foreign corporation which had not complied with the requirements of the Securities Law as to filing a statement with the Secretary of State had invested their own money in the corporation, that there was no fraud involved in the sale of stock of the corporation to plaintiff, and that the unprofitableness of the investment was no fault of such agents, form no defense to an action by plaintiff for the return of the sums paid for such stock.
    2. Corporations — admissibility of evidence of losses by agent selling stock of corporation in violation of Securities Law, in action by vendee of stock for refund of consideration. In an action by the purchaser of stock of a corporation which had not complied with the requirements of the Securities Law prerequisite to a valid sale of such stock, to recover from the selling agent the sums paid therefor, evidence that such agent had himself lost considerable sums invested in the corporate enterprise was properly excluded, having no bearing on the agent’s statutory liability to the vendee.
    Appeal by defendants from the Superior Court of Cook County; the Hon. Timothy D. Hurley, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed November 23, 1925.
    James F. Burns, for appellants.
    Charles J. Mueller and Fred B. Silsbee, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit to recover money which he paid for stock sold to him, as he alleges, -in violation of the provisions of the Illinois Securities Law, and upon trial had a verdict and judgment for $625 a,gainst defendants, George W. Beauchamp and Mark Shanks, the cause having been dismissed as to the Eastman Springs Beverage Company, Beauchamp and Shanks appeal.

The statute under which the action was brought is sometimes called the “Blue Sky Law,” approved and in force June 10, 1919, chapter 32, 254, et seq. of Cahill’s Illinois Statutes of 1925. It was analyzed and held constitutional in Stewart v. Brady, 300 Ill. 425. Section 37 of the Securities Law [Cahill’s St. 1925, ch. 32, [[ 290] declares every sale and contract of sale in violation of any of the provisions of the Act void and the seller of the securities so sold and each and every solicitor, agent or broker for such seller who should have knowingly performed any act or in any way furthered such sale, jointly and severally liable, upon -the tender to the seller or in court of the securities sold, to the purchaser for the amount paid, together with his reasonable attorney’s fees in any action brought to recover such amount.

The Eastman Springs Beverage Company is a Michigan corporation and maintained an office in the city of Chicago in the State of Illinois. Under the Securities Law the stock of such a corporation could not be sold here unless it filed with the Secretary of State of Illinois certain statements giving certain specified information about the company. Plaintiff alleges that no such statement was filed and that the Eastman Springs Beverage Company had not complied with the requirements of the Securities Law, 'and that therefore the sale of stock to him was void and that he had tendered to the defendants the certificates and demanded the return of the sum paid by him, viz., $500.

There is virtually no dispute as to the facts. Beau-champ was president and Shanks secretary of the Eastman Springs Beverage Company. There was no compliance with the law with reference to filing a statement with the Secretary of the State of Illinois.

Plaintiff testified that defendants Beauchamp and Shanks were after him to buy stock of the Eastman Springs Beverage Company; that the defendants offered to pay his railroad fare to go to Michigan to examine the plant and went with him, paying all expenses; that he paid $500, for which he received a receipt signed by Beauchamp and a certificate to the, effect that he was the owner of five shares of stock of $100 each, signed by Beauchamp as president and Shanks as secretary.

Defendants argue that the transaction was in good faith; that there was an entire absence of fraud; that both Beauchamp and Shanks had their money invested in the enterprise; that all of the funds were used for corporate purposes; and that the venture turned out to be unprofitable through no fault of theirs.

All of this may be conceded, but the presence of fraud is not a condition of liability of any one selling or furthering the sale of such stock. The statute embraces all such transactions, whether made in good faith or not. Whether it is a harsh law and may frequently work an injustice is no concern of this court. The legislature passed the law and the Supreme Court held it constitutional. If it is shown that the company did not comply with the statute, and the defendants sold or knowingly performed any act in any way furthering the sale of such securities, they are liable upon a tender of the certificates of stock. It does not make any difference whether plaintiff went into the transaction fully informed and with his eyes open. The opinion in the Stewart case, supra, disposes completely of this point.

It is complained that the court excluded testimony of the defendant Beauchamp concerning his financial loss in the Eastman Company. Such testimony was properly excluded, for whether or not Beauchamp profited or lost could not affect in any way his liability under the statute. It may be unfortunate for the defendants, as their counsel says, but the facts bring the case squarely under the liability imposed by the statute, and the judgment must be affirmed.

Affirmed.

Matchett, P. J., and Johnstoh, J., concur.


text:
    William L. O’Day, Appellee, v. O. B. Nugent, Appellant.
    Gen. No. 30,167.
    1. Negotiable instruments — conveyance to trustee of property contracted to he sold to maker of purchase money note as effecting failure of consideration. There was no failure of consideration for a note given as part of the purchase price of real property bought on contract in consequence of a conveyance of the property to a third person in trust for the benefit of the vendor and other parties who had an interest therein, where the trustee was ready and willing to execute a deed to the property upon payment of the note to the assignee of the payee thereof.
    2. Negotiable instruments — right of action hy assignee on note for purchase price of real property where title conveyed to third person as trustee for vendor and other parties in interest. The right of action of an assignee on a note for the purchase price of real property is based upon the note, and is not affected by the fact that the vendor has conveyed the title to the property to a third person, where by the terms of such conveyance the maker will become entitled to a deed to the property on payment of the note.
    3. Negotiable instruments — measure of damages on assigned note for price of real property purchased on contract. In an action by the assignee on a note for the purchase price of real property bought on contract the measure of the plaintiff’s recovery is the face of the note, notwithstanding the fact that the vendor of the property has conveyed title thereto to a third person in trust for the vendor and other parties in interest.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the first division
    of this court for the first district at the March term, 1925.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed November 23, 1925.
    Rehearing denied December 7, 1925.
    Charles A. Williams and Harry S. Ditchburne, for appellant.
    George L. Turnbull, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from a judgment for $1,300 had by the plaintiff in a suit upon a promissory note. The note was executed by defendant in Minot, North Dakota, dated July 3, 1917, to the order of the Western Bankers Investment Company and indorsed by the payee to the plaintiff.

It was asserted that plaintiff was not a bona fide holder in due course. He obtained the note for a good and sufficient consideration sometime in the middle of 1921. The cause was tried on the theory that it was subject to such defenses as might have been made against the original payee.

The evidence shows that at the same time defendant executed the note there was executed a contract between the Western Bankers Investment Company and the defendant, in which the company agreed to convey to Nugent two lots in North Dakota upon the payment of a balance of the purchase price represented by two notes, one for $30 and the other for $900, the latter payable in instalments of $120 or more every six months until the total was paid. This latter note is the one in question.

Defendant testified to an agreement with the plaintiff made in Minot, North Dakota, to cancel the note and contract and also to other transactions with O’Day, but upon being confronted by O’Day, who testified that he had never been in Minot, North Dakota, and had never seen the defendant before the morning of the trial, defendant admitted that he was mistaken as to any agreements with the plaintiff.

The main defense is based upon the effect of a conveyance of the property in question by the Investment Company to C. A. Beers of Bock Island, Hlinois. Mr. Beers is the president of the First Trust & Savings Bank of Bock Island, and the Investment Company being indebted to the Bock Island bank executed and delivered to Beers a warranty deed conveying a considerable number of lots in North Dakota, said Beers to hold title and out of the proceeds of the sale of the premises to apply as much as was necessary to pay the indebtedness of the Investment Company to the First Trust & Savings Bank. Beers was informed that the two lots in question were under contract to Nugent, and that the contract had been assigned to O’Day, and Beers agreed that out of the proceeds derived from the sale he was to pay 0 ’Day the amount due him and apply the balance on the indebtedness of the Investment Company to the Bock Island bank. It was proven that Beers was ready and willing to execute a good and sufficient warranty deed of the two lots to Nugent upon the payment of the amount due on the note held by O’Day, and a deed to this effect was tendered in open court to the defendant. There is no question as to the sufficiency of the deed or the tender.

It is argued that the Investment Company, having parted with title to the lots, destroyed the consideration for the note, and it is no longer enforceable, citing Epstein v. Rosenfield, 222 Mich. 358. In that case, which was a suit for part of the purchase price, plaintiffs had sold the property to another and could not give a deed, and it was -held that, having parted with all of their interest, performance under the contract was impossible. That is not this case. Beers simply held the naked title as trustee for the benefit of the Investment Company and other parties who had an interest in the real estate. The interest of defendant, Nugent, under his contract was specifically provided for, and his acceptance of the tendered deed with payment of the note would have completely fulfilled the contract. Having refused to accept a conveyance of the lots, he cannot defend on the ground that performance of the contract is impossible.

Defendant asserts that plaintiff was limited to two remedies — either an action at law to recover damages for breach of the contract, or a suit in equity for specific performance — citing Dickson v. Turner, 149 Ill. App. 394. That was a suit to recover the full amount of the purchase price named in the contract as damages for its breach. It was not a suit on a note, and it was held that plaintiff could not recover such damages under the counts there filed.

We have not been favored by any citations in point. Counsel for plaintiff claims to have searched but failed to find any precedents. It is a long-established rule that, where a debt evidenced by a note is secured by a mortgage or a trust deed, the debt is the principal thing and the mortgage merely incidental. Union Mut. Life Ins. Co. v. White, 106 Ill. 67. A suit in assumpsit can be maintained on the note itself without regard to the mortgage. By analogy, this suit on the note can also be maintained, and no convincing reason is presented to the contrary. Essentially the contract is security for the payment of the note, and that the note and contract are part of the same transaction furnishes no bar to an action on the note alone.

It is not convincing to argue that no judgment should run against defendant on the ground that he will be obligated for this and yet not have the lots. Upon the payment of the note at any time he could have had a deed, and if he should pay the note or judgment could demand a deed and maintain an action for specific performance if it should be denied. He cannot plead in defense an embarrassing situation for himself, which he has created by his own breach.

In this view of the case it was not necessary to introduce evidence as to the measure of damages. The suit is not for damages for the breach of a contract, but is upon the promise of the defendant to pay, contained in the note made by him. Under such circumstances plaintiff is entitled to recover the amount which appeared to be due on the face of the note.

The judgment of the municipal court is right and is affirmed.

Affirmed.

Matchett, P. J., and Johnston, J., concur.


text:
    Sherman Park State Bank, Appellee, v. Loop Office Building Corporation, Appellant.

      Gen. No. 30,799.
    1. Receivers — grounds for appointment. A receiver should not be appointed except on proof of grounds showing fraud or immediate danger to the property, unless it is taken into the custody of the court.
    2. Receivebs — unverified bill as basis for appointment. A bill verified only by an affidavit on information and belief affords no competent evidence in support of a motion for the appointment af a receiver.
    3. Receivebs — prerequisites to appointment of receiver upon application unaccompanied by bond. An order based upon the proviso to paragraph 55, chapter 22 of the Chancery Act, Cahill’s St. ch. 22, f 55, waiving the requirement of a bond from the applicant for the appointment of a receiver, is insufficient and improperly entered which does not affirmatively show that the court was of opinion that the receiver should be appointed without such bond, that does not show the facts excusing the giving of such bond, and .that does not recite the specific reason for the appointment of the receiver.
    Interlocutory appeal by defendant from the Superior Court of Cook county; the Hon. Walter P. Steffen, Judge, presiding. Heard in the first division of this court for the first district.
    Reversed.
    Opinion filed November 30, 1925.
    Winston, Strawn & Shaw, for appellant; John C. Slade, of counsel.
    Danaher & Garriott, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from an interlocutory order appointing a receiver solely on the allegations of a bill.

Eeceivers should not be appointed except on proof of grounds showing fraud or immediate danger to the property unless it is taken into the custody of the. court. Nartsik v. Ehman, 191 Ill. App. 71.

If the motion for the appointment of a receiver is based upon the allegations of a bill, it must be sworn to, otherwise there is no competent evidence furnishing a basis for the appointment of a receiver. Daley v. Nelson, 119 Ill. App. 627. An examination of the affidavit attached to the instant bill of complaint shows that the alleged facts are not sworn to. The affidavit purports to be made by an agent and asserts “to the best of his knowledge and belief the facts therein set forth are true, except as to those statements made on information and belief, and as to such statements this affiant states he believes them to be true.” This is no affidavit as to the facts. It asserts only affiant’s belief that the facts therein set forth are true, except as to the statements made on information and belief, which negatives the truth of the statements, for all of the statements are made on information and belief. Such an improperly verified bill proves nothing to justify the appointment of a receiver. Siegmund v. Ascher, 37 Ill. App. 122.

Paragraph 55, chapter 22 of the Chancery Act [Ca-hill’s St. ch. 22, ][ 55] provides that, before a receiver shall be appointed, the party making the application shall give a bond, “provided, that such bond need not be required when for good cause shown, and upon notice and full hearing, the court is of opinion that a receiver ought to be appointed without such bond.” The instant order provides that: “It is further ordered, upon good and sufficient showing, that the bond of the complainant herein be, and the same is, hereby waived.” This is objectionable in several respects: (1) the order does not show affirmatively that the court was of the opinion that the receiver should be appointed without bond. (2) It is not enough to recite that the bond is waived “upon good and sufficient showing.” The facts must be shown which would excuse the giving of a bond. (3) The specific reason for appointing a receiver without bond must be recited in the order. Gibberman v. Stangal, 208 Ill. App. 298; Watson v. Cudney, 144 Ill. App. 624.

The order was improperly entered and is reversed.

Reversed.

Matchett, P. J., and Johnston, J., concur.


author: Mr. Justice Crow

text:
    Julius H. Bohn et al., Appellants, v. Edward M. Stubblefield et al., Appellees.
    Gen. No. 7,822.
    1. Schools and education — construction of statutes giving powers to officers. Statutes conferring powers on school officers, being purely statutory, must be strictly construed, and nothing will be intended to be within the power unless clearly within the terms of statutory authority conferred expressly or by necessary implication.
    2. Schools and education — statutes giving powers construed also as limitation. All statutes granting and defining powers of school officers should be construed not only as a grant of power, but also as a limitation thereon.
    3. Schools and education — discretion of officers not interfered with "by courts. Exercise of power of determining necessity for and the kind of schoolhouse to be constructed by school officers, within their discretion and within the limits defined by statute, cannot be interfered with by the courts except where it has been manifestly abused.
    4. Schools and education — temporary "buildings not constructed without vote. Directors of community high school district cannot construct temporary school building without a vote of the people authorizing it, in view of Cahill’s St. 1921, ch. 122, 99, 137.
    5. Schools and education — officers may lease school building without vote. Directors of a community high school district have the power under Cahill’s St. 1921, ch. 122, Kf 99, 137, to lease a building for school purposes without a vote of the people.

      Appeal by plaintiffs from the Circuit Court of Macoupin county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed.
    Opinion filed June 27, 1925.
    Rinaker & Rinaker, for appellants.
    Jesse Peebles, for appellees.
   Mr. Justice Crow

delivered the opinion of the court.

The only question presented by this appeal is whether defendants, appellees here, have legal authority to construct certain buildings for community high school purposes without a vote authorizing it. There is no controversy as to the integrant facts. Only a question of corporate power, as distinguished from policy or propriety, is to be determined. With the first we must deal. With the latter we are not concerned.

Appellants, as citizens and taxpayers, filed their bill to restrain the directors of Brighton Community High School District No. 192 from taking further steps toward the construction of any building for the use of the Community High School and for extending any tax for building purposes, and for general relief. An answer was filed and motion made to dissolve the temporary injunction which had been granted without notice and without bond. On hearing of the motion upon bill, answer and affidavits, the temporary injunction was dissolved. By agreement of parties the order dissolving the injunction was vacated and the cause submitted on the merits on the pleadings and affidavits, certain records, letters and communications to the board.

By the decree made by the chancellor upon the final hearing it is found that the proposed sectional portable building proposed to be erected by the board is not a school building within the meaning of the statute, but is a “temporary arrangement” within the power of the school directors of the district without a vote of the people. It was further found that the levy of a tax of $2,500 for building purposes, not having been authorized by vote, is without authority of law. In consonance with those findings the chancellor decreed: (1) That the temporary injunction restraining the erection of the proposed sectional portable building for school purposes be dissolved; (2) that the temporary injunction enjoining the extension of the tax for building purposes be made perpetual.

Two assignments of error are made against the decree: (1) The court erred in finding the proposed building was not a school building within the meaning of the statute, but was within the power of the school directors of said district without a vote of the voters of the Community High School District. (2) The court erred in dissolving the injunction restraining the erection of the proposed temporary building for said district.

What is said above as to questions of propriety and policy of administration is in view of the averment in the bill that in April, 1924, a special election was held for the purpose of voting on four propositions: (1) To select a schoolhouse site for the high school district; (2) to purchase a school site in and for the district; (3) to build a schoolhouse in and for the district; (4) to issue bonds of said district in the amount of $52,000, and that none of said propositions received a majority of the votes cast at the election. It is further said that at a subsequent election held to vote on the question of the dissolution of the district, 480 votes were cast for and 330 against dissolution, and the requisite number (two-thirds) not favoring dissolution, it was not dissolved. It is apparent, therefore, that whatever may be the views of the inhabitants and taxpayers with regard to the policy of providing school facilities, the only question presented by this record is, can the school directors lawfully construct buildings for school purposes though denominated a “temporary building” without a vote of the people? The disposition of this part of the decree will dispose of the other assignment as to the alleged erroneous finding of the chancellor of the fact that such building is not a school building within the power of the directors to construct without a vote of the people.

The elementary doctrine underlying the interpretation of statutes conferring powers on school officers is that, being purely statutory, they must be strictly construed. Nothing will be intended to be within the power unless clearly within the terms of statutory authority conferred, expressly or by necessary implication. Cooley, Const. Lim. (5th Ed.) 226; Stevenson v. School Directors, 87 Ill. 255; School Directors v. Fogleman, 76 Ill. 189; Clark v. School Directors, 78 Ill. 474; Adams v. State, 82 Ill. 132; Peers v. Board of Education, 72 Ill. 508 (510). All statutes granting and defining such powers should be construed not only as a grant of power to such boards or officers, but also as a limitation thereon. Clark v. School Directors, supra. The power of determining the necessity for and the kind of schoolhouse may under different systems be confided either to the school districts or to certain local boards as officers therein; and in such case the exercise of such power is within the discretion of the board or officers, within the limits defined by the statute, and cannot be interfered with by the courts except in cases where it has been manifestly abused. 35 Cyc. 925.

The statute in relation to the powers and duties of the boards of education of community high school districts is:

“For the purpose of building one or more high schools, conducting and supporting such schools and paying all necessary expenses, the territory for the benefit of which a high school is established under any of the provisions of this Act, and all high school districts organized under any statute in force at the time of their organization, and all high school districts legalized by statute shall be regarded as school districts and the board of education of each of said high school districts shall in all respects have the powers and discharge the duties of boards of education elected under the general school law in common school districts having a population of one thousand or more and not exceeding one hundred thousand inhabitants. The board of education of any such high school district shall have the right to build or acquire and maintain one or more sites and erect thereon buildings when in their judgment such additional facilities are needed by the district, and the site or sites therefor have been lawfully selected.” Cahill’s St. 1921, ch. 122, U 99.

The statute with regard to the powers of boards of education referred to provides:

“The board of education shall have all the powers of school directors, be subject to the same limitations, and in addition thereto they shall have the power, and it shall be their duty: * * * Fifth: To buy or lease one or more sites for school houses with the necessary grounds; provided, however, that it shall not be lawful for such board of education to purchase, build or move a school house, unless authorized by a majority of all the votes cast at an election called for such purpose in pursuance of a petition signed by not fewer than five hundred legal voters of such district, or by one-fifth of all the legal voters of such district.” Id. U 137.

Considering those sections of the school law pertinent to the present inquiry, with other sections conferring power on school directors, it is manifest the legislature saw fit to intrust some powers to boards of directors or boards of education and other powers to the inhabitants of the school districts exclusively. The boards of education are intrusted with the power, under all the subdivisions of paragraph 137 of the Act, to perform many important functions. They have the power to establish free schools, repair and improve schoolhouses and furnish them, employ teachers and fix the amount of their salaries, levy taxes, dismiss and remove teachers. But in the important matter of purchasing or locating a school site, or purchasing or building or moving a schoolhouse, questions of economic policy, it is declared unlawful for them to act unless authorized by a majority of all of the votes cast at an election called for the express purpose and then only in pursuance of a petition signed by one-fifth of all the legal voters of the district. Could language be more explicit and imperative in denial of the right of the board to act, and requiring action only by the legal voters of the district? Being so explicit it is not competent for the judiciary to whittle away the limitation on the power and authority fixed and extend limitations the legislature has seen fit to withhold, and by necessary implication has denied. There is no limitation against the discretion of the electorate to construct temporary buildings but the power has not been given to boards of education.

Where shall we stop in extension of limitations and by what standard shall we determine in advance of or after the fact, whether a building is “temporary”? If the condition is the result of casus omissus, the authorities are one way that we may not supply the defect by interpretation, for there is no common law governing or supplying the omission. Bouvier’s Law Diet. (Bawley’s 3rd Revision) , “Casus Omissus The authority of boards to build schoolhouses is limited to those cases only where an election called, as specifically provided, authorizes it. The specific popular authorization is indispensable. School Directors v. Fogelman, 76 Ill. 189. Any act prohibited by a valid statute is void. DeKam v. City of Streator, 316 Ill. 123.

But the school authorities are not without power to supply the need. Appellees contend that a real emergency exists and that it must be met, and therefore the temporary schoolhouse must be a valid expedient. A like situation to that presented here existed in the case of Millard v. Board of Education, 121 Ill. 297, cited by counsel for appellees. A proposition to issue $30,000 of bonds to erect a school building in East St. Louis was defeated at an election held for that purpose. The board of education leased rooms for school purposes in the basement of a church. A school site had been selected by the voters, but the issue of bonds was voted down. Millard as a citizen and taxpayer filed a bill to enjoin the board from carrying out the lease contract for the basement for school purposes. The Supreme Court held that under the statute the board of education had the necessarily implied power to lease rooms for school purposes and that it was its duty to do so that the schools might be kept in operation. Appellees here are under the same obligation to maintain the school. They have the same power under the statute there declared to exist, without the sanction of an election.

Appellees say in their argument that if they are denied the right to erect the building now in controversy it will be impossible for them to carry on the school. But the argument must be met in the cold terms of the law, “it is written.” The legislature, the only source of power and authority, has seen fit to intrust the policy of building sehoolh.ou.ses of any sort only to the determination of the inhabitants and not to their agents, the school directors or boards of education. It has not seen fit to take it from the electorate or qualify it in any degree and we must apply the law as given.

But let it be assumed the school district has in the treasury unlimited funds, but not derived from taxes levied for building purposes pursuant to a vote authorizing the building of a schoolhouse. Those funds not being so derived, are subject to use for other school purposes. The legislative purpose in requiring a favorable vote before building schoolhouses is evaded if money in the treasury may be diverted by the directors or boards of education to building without the consent of the inhabitants expressed by the ballot. The funds belong to the inhabitants and voters of the district. There is no provision in the statute that the board may build, except by vote authorizing it. All property being that of the district in its corporate capacity, the boards of education by whatever name, although collectively a body corporate, are only agents of the inhabitants. They may be unwilling, capriciously or not, to acquire tangible property in the form of school buildings. The legislative purpose clearly expressed is that in its corporate capacity the district may determine whether it shall or shall not have such property. It might be willing to have a substantial building at a greater cost than a mere temporary one at any cost. But no authority is granted to construct such a building, or any building, without a vote favoring it. This court so held in Hysler v. Board of Education, 201 Ill. App. 116. That case was affirmed in 272 Ill. 458, though the question now presented was not considered.

The decree of the circuit court dissolving the injunction restraining the board of education from building a temporary schoolhouse is reversed.

Reversed.