author: Pee curiam.

text:
    John H. Wedig, Appellee, v. The Kroger Grocery and Baking Company, Appellant.

      Opinion filed September 16, 1935.
    Rehearing denied October 21, 1935.
    O. W. Burton, of Edwardsville, for appellant.
    M. R. Sullivan, of Edwardsville, for appellee.
   Pee curiam.

John H. Wedig instituted this suit against the appellant, hereinafter referred to as the defendant, to recover damages for injuries he sustained when his automobile collided with defendant’s truck and trailer. Wedig recovered a judgment and pending appellant’s appeal to this court, he died. Representatives of his estate petitioned to be substituted as plaintiff-appellee and appellant filed a plea alleging that by reason of the death of Wedig the suit abated. We sustained appellee’s motion to strike the plea. 278 Ill. App. 378. For convenience, we will refer to appellee as plaintiff.

The negligence charged in the three counts of the declaration upon which the case was tried is that the defendant left a truck and trailer standing upon State Highway Route No. 3 without any light or other warning; that the defendant violated the statute prohibiting the driver of a vehicle from stopping on a State highway so that there is not ample room for two vehicles to pass; and, that the defendant violated the statute requiring each motor vehicle or trailer when upon any public highway to be lighted with one light which shall throw a red light visible in the reverse direction. The defendant pleaded the general issue. The jury returned a verdict for plaintiff for $15,000. Motions for a directed verdict made by the defendant at the close of plaintiff’s evidence and at the close of all the evidence were overruled. Motions for a new trial and in arrest of judgment were likewise overruled. The court’s rulings on these several motions are assigned as error.

Defendant contends that Wedig did not prove that he exercised due care for his own safety and that his negligence was such as to bar recovery.

The accident occurred about 2:30 a. in., February 11, 1933, on State Highway Route No. 3 on a bend or curve in the road near the Hackenthal farmhouse. The road at this point extends in a general northerly and southerly direction but the bend or curve was slightly to the west. The pavement at this point was of brick, 18 feet wide with the center line marked. There is a conflict in the evidence as to the width of the earth shoulder on the east side of the pavement, plaintiff’s witnesses fixing it at six to eight feet, while the truck driver fixes it at not over four feet.

Defendant’s truck with a trailer attached loaded with merchandise, a total weight of 25,000 pounds, was traveling north. The driver of the truck testified that when he was about a mile south of the scene of the accident, the motor “sputtered” but did not stop. When he crossed canal bridge a half a mile from the scene of the collision, it missed fire again but the driver made no investigation. When near the place of the accident, the motor “sputtered” again and soon stopped. The truck and trailer rolled approximately 40 feet after the motor died and stopped on the pavement in the north-bound traffic lane. While it was standing in this position, plaintiff, driving a Dodge coupé, approached from the south and in undertaking to pass the trailer collided with the left rear corner. After the collision the coupé came to a stop in the field 16 to 18 feet west of the trailer, headed south. The front part of the coupé did not come in contact with the trailer, the force of the impact being about the center of the right side.

Plaintiff testified that when he crossed the canal bridge, approximately a half mile south of the scene of the accident, he was driving 40 to 45 miles per hour with his bright lights burning; that soon thereafter, he saw an automobile approaching from the north with bright lights and traveling at a high rate of speed; that he reduced his speed and when he was 200 to 300 feet south of where the collision occurred, and before he met the south-bound car, he switched his lights from bright to dim; that he passed the south-bound car 40 to 70 feet south of the scene of the accident and "immediately thereafter turned his lights from dim to bright and then for the first time, he saw defendant’s truck and trailer standing on the pavement 15 to 20 feet ahead of him; that he immediately applied his brakes, turned his car to the left to pass the trailer but that he was so close the collision could not be avoided. He testified that just before and at the time of the collision, he was not traveling more than 20 to 23 miles per hour.

Defendant’s evidence shows that the truck and trailer had been stopped on the pavement five to seven minutes when the collision occurred. The truck driver testified that when the truck stopped, he got out of the cab, examined the carburetor on the left side of the motor and found that there was gasoline in it; that he then went to a tool box on the right side of the cab to get some lights to put out as warning signals; that while he was removing the lights from the box, the collision occurred; that in going to plaintiff’s car on the west side of the truck, he passed to the rear of the trailer and that the three colored lights at the top of the trailer and the tail light were lighted; that he did not at any time turn off the rear lights. He testified as to seeing plaintiff’s car coming towards the trailer, that it had headlights burning and was traveling 45 to 50 miles per hour. Plaintiff testified that after his car came to a stop on the west side of the highway, he saw the truck driver climb out of the truck cab and that he told the driver to turn on his lights and that he went back to the cab and the lights both forward and rear immediately came on.

There is evidence in the record describing the color of the trailer as “dirty” and that it was about the same color as the highway; that it was a “gray” night and visibility was not good; that there was some snow and ice in the fields but none on the pavement.

The question of the care exercised by the plaintiff Avas one for the jury unless his conduct was so clearly and palpably negligent that all reasonable minds would agree that he did not exercise that degree of care and caution that a reasonable, ordinary and prudent person would exercise under the same circumstances.

The statute which was in force at the time of the collision, section 16(e), par. 17, ch. 95a, Cahill’s Statutes (section 17 E, ch. 95½, Smith-Hurd), provided that any person in charge of a motor vehicle when approaching another vehicle proceeding in an opposite direction, and when not less than 250 feet of the same, should dim, drop or extinguish his headlights. It appears that plaintiff’s act in switching his lights from bright to dim when approaching the south-bound car was in compliance with that statutory requirement.

Defendant’s contention that plaintiff’s contributory negligence bars his action may be summarized under two heads, viz.: that it was negligence per se for plaintiff to drive his car at the speed he did at a time when his vision was obstructed by the bright lights of the south-bound car and, secondly, that he was negligent in not having his car under control so that he could stop within the range of his vision.

The evidence shows that under the atmospheric conditions as they existed at the time of the accident, the bright lights gave plaintiff a vision of 200 to 300 feet while with the dim lights he could see but 75 feet. Plaintiff testified in this case that the bright lights of the passing car did not shine in his face but did interfere to a certain extent. Evidence was offered of an impeaching nature which showed that plaintiff in another trial had testified that the lights did shine in his face.

There are many cases in other jurisdictions holding that it is negligence per se for a person to continue driving an automobile at night when he is blinded by a glare of a light from a car coming’ in the opposite direction and places the duty upon the driver of coming to a full stop if necessary and to standstill until he can see. Ruth v. Vroom, 245 Mich. 88, 222 N. W. 155, 62 A. L. R. 1528; Mathers v. Botsford, 86 Fla. 40, 97 So. 282, 32 A. L. R. 881; Woodhead v. Wilkinson, 181 Cal. 599, 185 Pac. 851, 10 A. L. R. 291; and notes and annotations in each of said A. L. R. reports following said cases.

In Hazel v. Hoopeston-Danville Motor Bus Co., 229 Ill. App. 125, the plaintiff sued the owner of the approaching car bearing the bright lights which plaintiff claimed had blinded him so that he was prevented from seeing a wagon in the highway ahead of him and that by reason of such bright lights, he collided with the wagon, causing damage. It was there held that the plaintiff in continuing to drive his car at a time when he was blinded by the lights of the approaching car was guilty of contributory negligence. The Supreme Court in reviewing the case at 310 Ill. 38 held that there was evidence which tended to sustain the finding of the Appellate- Court that the plaintiff was guilty of contributory negligence.

On the othér hand, there are cases where the plaintiff was blinded by bright lights from an approaching car and it was held that the question of contributory negligence of the plaintiff was a question of fact for the jury. For illustration, in Griffith v. Thompson, 148 Wash. 243, 268 Pac. 607, it appeared that the lights of the approaching car intermittently blinded plaintiff before he collided with a truck. In Providence v. Young, 227 Ky. 690, 13 S. W. (2d) 1022, plaintiff while blinded by headlights drove on to an unlighted concrete mixer located on a village street; and to the same effect are Buzick v. Todman, 179 Iowa 1019, 162 N. W. 259; Aubin v. Duluth Street R. Co., 169 Minn. 342, 211 N. W. 580; West v. Marion County, 95 Ore. 529, 188 Pac. 184.

Under the evidence in this case, we are of the opinion that the facts bring it within the rule announced in the latter cases. If, as plaintiff testified, the color of the truck and trailer blended with the ground and'roadway so as to make it difficult to see the outline of the trailer and that the bright lights of the approaching car did not shine in his face but furnished some interference and the fact that it occurred on a bend or curve in the road where the rays of the approaching light would follow the curve in the road, makes it a question for the jury to say whether plaintiff V failure to see the truck and trailer was because he was blinded by the approaching lights or whether it was by reason of the surrounding conditions and defendant’s failure to have the truck and trailer properly lighted. Whether there were lights on the truck and trailer was disputed and was a question of fact for the jury.

It is defendant’s further contention that plaintiff was traveling at an excessive rate of speed, and that the court erred in not directing a verdict on those grounds. On such a motion the court could only determine whether there was any evidence which tended to prove plaintiff’s case and if there was, the motion could not be sustained. Plaintiff’s evidence which is most favorable to his case is that he was driving 20 to 23 miles per hour at the time of the accident. When he first saw the trailer, he was about 20 feet from it and he testified that he applied his brakes as hard as he could and turned his car to the left to avoid the collision. There is no direct evidence that plaintiff’s car could not be stopped within 20 feet when traveling at 20 to 25 miles per hour but the fair inference is that it could not.

The general rule is that it is negligence as a matter of law to drive an automobile at such a rate of speed that it cannot be stopped in time to avoid a collision with an object discernible within the driver’s length of vision ahead of him. Murphy v. Hawthorne, 117 Ore. 319, 244 Pac. 79, 44 A. L. R. 1397; Morehouse v. Everett, 141 Wash. 399, 252 Pac. 157, 58 A. L. R. 1482, and Lindquist v. Thierman, 216 Iowa 170, 248 N. W. 504, 87 A. L. R. 893, and cases cited in the annotations following .each of said cases as reported in A. L. R.

There are cases which hold that by reason of certain conditions, it is a question of fact for the jury. The case of Moyer v. Vaughan’s Seed Store, 242 Ill. App. 308, recognized the general rule and held that under the facts of that case the question of plaintiff’s negligence was for the jury. The conditions referred to in the Vaughan case which took it out of the general rule are so similar to the facts in this case that we are of the opinion that it should control. The circumstances referred to by the court in the Vaughan case as making it a question for the jury is stated as follows: “In the instant case we think it cannot reasonably be said that the driver of plaintiff’s automobile was guilty of negligence as a matter of law. The night was dark and misty. The plaintiff was driving along a country road where standing vehicles were not to be expected. There is evidence to the effect that there was no rear light on the truck; that the color of the truck and its load blended with the coloring of the surface of the road. These, and many other circumstances which might be alluded to, show that all reasonable minds would not reach the conclusion that the driver of plaintiff’s automobile was acting as no rational person would act under like circumstances, and, therefore, the question to be determined was one of fact and not law. ’ ’

Defendant also. contends that plaintiff’s testimony that he was driving 20 miles per hour around a bend or curve in the highway was prima facie negligence under section 23, ch. 95a, Cahill’s (1933); sec. 27, ch. 95½, Smith-Hurd (1933). Defendant’s photographic exhibits attached to the record shows that the view of a driver of a car approaching the scene of the accident from the south was in no way obstructed and therefore the statute has no application for it applies only to those cases where the driver’s view in going around a corner or curve is obstructed.

Defendant’s final contention is that the evidence does not show it to have been guilty of the negligence charged. The negligence charged in the first and third counts was that the defendant did not have the truck and trailer properly lighted. We have already referred to the conflict in the evidence as to the lights on the truck and trailer and we are satisfied that that question was properly submitted to the jury. The second count charged a violation of the statute prohibiting a driver of a vehicle stopping on the pavement except in case of an emergency. Defendant contends that the emergency existed which caused it to stop. In the recent case of Rhoden v. Peoria Creamery Co., 278 Ill. App. 452, the court reviewed the various decisions construing this statute and held that the rule to be deduced from them was that the exigency which will excuse a person from leaving a car on the public highway in violation of the statute is when the driver has no choice about leaving his car in that position. The evidence is in conflict as to whether the earth shoulder on the east side of the highway was sufficient width for the truck. If plaintiff’s evidence was to be believed, then there was sufficient width for the truck and trailer to drive on. The truck driver testified that the truck rolled forward about 40 feet after the motor had stopped and that being true, he could have guided it on to the shoulder and off the pavement. There was defective operation of the motor at times for more than a mile and in that distance he passed a side road, yet he made no attempt to get off the pavement. We are of the opinion that an emergency which would excuse defendant for stopping on the pavement did not exist.

The court did not err in its rulings on any of defendant’s motions and we find that the evidence supports the verdict.

The judgment of the circuit court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Hall

license: Public Domain

text:
    Jesse A. Rothschild et al., Appellants, v. Sears, Roebuck and Company, Appellee.
    Gen. No. 37,742.
    Opinion filed November 20, 1935.
    Mayer, Meyer, Austrian & Platt, of Chicago, for appellants; Frederic Burnham.and Miles G. Seeley, both of Chicago, of counsel.
    Lederer, Livingston, Kahn & Adler, of Chicago, for appellee"; Charles Lederer,- Sigmund Livingston ' and Archie H. Siegel,' all of Chicago, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

This is an appeal from an order of the superior court of Cook county, overruling demurrers to a series of pleas to the declaration filed in the case.

On January 20, 1931, the plaintiff, Rothschild & Co., a copartnership, consisting of Jesse A. Rothschild, Samuel I. Karger, Sidney W. Karger, Victor Kunzer, Jr., and Fuller M. Rothschild, who were engaged in the stock brokerage business, brought suit against Sears Roebuck & Co., a corporation, upon an alleged contract of the defendant to “take over from the plaintiff through the firm of Stein, Alstrin & Co., another brokerage firm, the brokerage account* of one Carl Reiss, an employe of the defendant corporation. ’ ’

The declaration recites inter alia that on October 29, 1929, plaintiffs received from defendant corporation the following telegram:

“Sears Roebuck & Co. guarantees the account of Miss L. Brown and the accounts of any other Sears Roebuck and Co employes where the margin is short at present time stop We will arrange for the collateral you need a little later —

John Higgins Sears Roebuck and Co Vice Pres.”
It is further alleged that on November 1, 1929, the defendant sent the following letter which was received by the plaintiff company on November 2, 1929:
“November 1, 1929.
“Rothschild & Co.
105 W. Adams St.,
Chicago, Ill.
‘ ‘ Gentlemen:

‘ ‘ This week you received from us either a telegram, special delivery letter, or both, advising you that we guaranteed certain accounts. In some instances we mentioned the name, and in nearly every instance we included employes whose margins had become weak, but whose names we did not know at the time. The market has strengthened up some, and we know that a great many of the accounts we were guaranteeing have now become safe without our guarantee.

“If, by any chance, there is an account in your office of an employe of ours not fully protected at this moment, please write us, giving the name, the amount owed to you, and a list of the collateral being held by you for the account, and we will give you further instructions.

“It is assumed, of course, that in none of these accounts has a purchase been made since the receipt of our guarantee.

“We trust that while the market is so uncertain, you will advise us before you sell out the account of any one of our employes.

“We are grateful to you for your hearty co-operation and assistance in this matter, and thank you very much.

“Very truly yours,
Sears, Roebuck and Co. Ry Jno. Higgins,
Vice President.”
It is alleged that after the receipt of both of the before mentioned documents, Rothschild & Company, on November 2, 1929, mailed to the defendant corporation the following letter:
“November 2, 1929.
“Sears Roebuck & Company,
Chicago, Illinois
‘‘ Attention: Mr. Jolnf Higgins:
“Dear Sir:

“One of your employees, Mr. Carl Reiss, has an account with us, his debit balance as of October 31, was $61,761.85, and his account is long the following securities :

1 M Unterelbe Pwr. & Lite 6s 1953 A

1 M Dept. Cauca Valley 7s 1948

1 M Vicksburg Bridge Term 6s 1958

1 M May Bldg, of Cal. 5½s 1932

1 M 1088 Park Ave. Apt. 6s 1939

1 M Dodge Bldg. 7s 1935

$500 Straus Bldg. 6s 1940

1 M Amer. Tel. & Tel. 5%s 1943

1 M Cities Service 5s 1958

100 Madison Kedzie Bank

1 M Assoc. Gas & Elec. 6s 1999

“Kindly advise us when you will take up this account as per your message of October 29, and your letter of November 1.

“Yours very truly,”
It is alleged that thereafter plaintiffs received from defendant the following:
“November 7, 1929.
“Rothschild & Co.,
105 W. Adams St.,
Chicago, Ill.
“Re: Account of Carl Reiss.
‘ ‘ Gentlemen:
“In order not to scatter Mr. Rosenwald’s collateral into a hundred or more brokerage houses and banks where the collateral would be tied up for an indefinite period, we think it best that, where there are not more than few individuals with one broker or bank, they be transferred into one place. We have accordingly made arrangements with Stein, Alstrin & Co. to take over these scattered accounts. We believe this will be more agreeable to you than your holding of collateral that does not belong to the individual, and could not be sold to protect you until Mr. Rosenwald was so notified.
“We wish again to thank you for your kindness in holding this account until something could be done with it.
“Very truly years,
Sears, Roebuck & Co.
By Jno. Higgins,
Vice President.”

The declaration further alleged that in consideration of the promises of the defendants, plaintiffs refrained from selling any of the securities of the account of Carl Reiss, that the market value of these securities thereafter greatly depreciated, that the plaintiff company thereby lost the greater part of the benefit of the securities for the debit balance which they held against Reiss consisting of the securities held in the account of Reiss, that Rothschild & Company neither purchased additional securities for the Reiss account, nor sold any securities held by them for this account after the receipt of the telegram from the defendants ; that plaintiffs have been and were at the time of, and since the filing of the declaration herein, ready, able and willing to deliver the securities held in the account upon the payment of the debit balance held against Reiss; that Reiss has failed and refused to pay the debit balance, and that by reason of the promises of the defendants, it is indebted to the plaintiffs in the sum of $61,761.85, together with interest at the rate of five per cent per annum from October 31, 1929. There are two counts to the declaration, which are similar in import.

■ It is the theory of the plaintiffs that the correspondence between the parties made a contract between them, by which defendants, for a consideration, promised to purchase the securities from the plaintiffs.

A series of pleas were filed by the defendants, the substance of which is that the agreement between defendants and plaintiffs was merely one of guarantee, and that the alleged contract, even if made, as alleged, was and is ultra vires and beyond the power of defendant to make.

Our construction of the correspondence is that it makes an absolute promise on the. part of the defendant company to take over the securities held by the plaintiffs on account of Reiss, in consideration of plaintiffs’ not selling Reiss out in order to protect themselves. There was no alternative mentioned. Sears Roebuck & Company did not, by these voluntary communications to the plaintiff company, agree to take over these stocks in case Reiss failed or refused to do so. The defendant corporation voluntarily requested and urged the plaintiffs not to sell the securities pledged to plaintiff company in order to reimburse themselves for the balance owned by Reiss to plaintiffs. In our opinion, there was an agreement made by defendant that in consideration of such forbearance it would purchase these securities through another broker.

The pleas filed by defendants in which they allege that the contract, between plaintiffs and defendants is ultra vires and beyond the power of defendants to make in that respect, contain, among other things, the following:

“That it is a corporation organized under the general corporation laws of the State of New York and is a business corporation for the purpose of to manufacture, buy, sell, import, export, distribute and deal in goods, wares and merchandise of- every kind and any and all materials and articles required for or used or useful in connection with all or any of the objects aforesaid, and to do a general printing and publishing business; ar 1 that it has and is now conducting a general merchandising business, buying and selling merchandise and in the manufacture of merchandise which it so sells. That it was not at any time heretofore and is not now authorized by law to enter into the said supposed contracts set forth in said first count of said declaration and that said supposed- obligation was not within the corporate powers of the. defendant and is ultra vires and that the said defendant was in no manner connected with or interested in the transactions between said plaintiffs and said Carl Reiss, nor. was it in any manner interested or connected with the said alleged debit balance and indebtedness in favor of the plaintiffs and due and owing from said Carl Eeiss.

“And the defendant for further plea in this behalf says that the several supposed causes of action in said declaration mentioned are one and the same, to-wit, the supposed cause of action in the first count mentioned, and not different causes of action. ’ ’

Also:

“ That said defendant is a corporation organized under the laws of the State of New York and qualified as such foreign corporation in the State of Illinois, that it is a corporation organized for pecuniary profit and not for banking, insurance, building and loan or surety business. That as such foreign corporation it was duly qualified to do business in the State of Illinois, to-wit, the 26th day of June, 1906, on which date there was issued to it by the Secretary of State of the State of” Illinois license and permit to do business as a foreign corporation in the State of Illinois for the following purposes: ‘To manufacture, buy, sell, import, export, distribute and deal in goods, wares and merchandise of every kind, and any and all materials or articles required for, or used or useful in connection with, all or any of the objects aforesaid, and to do a general printing and publishing business, also to purchase or otherwise acquire, own and hold such real property as may be necessary for the proper carrying on of its legitimate business, and to build, erect, construct, purchase, hire or otherwise acquire, own, provide, establish, maintain, hold, lease and operate factories, warehouses, agencies, depots, buildings, structures, offices, houses, works, machinery, plants, and all other things of whatsoever kind and nature, suitable, necessary, useful or advisable in connection with any or all of the objects hereinbefore or hereinafter set forth, and to convey, sell, assign, transfer, lease, mortgage, pledge, exchange or otherwise dispose of any of such property as far as, and to the extent that the same may be permitted by the laws of the State of Illinois, and in general to exercise all the powers conferred by the laws of the State of Illinois consistent with the foregoing objects above expressed, it being hereby ex.pressly provided that the foregoing enumeration of specific powers shall not be held to limit or restrict in any manner such general powers.’

“That since the aforesaid date it has maintained an office in the State of Illinois and transacted the business of buying and selling merchandise as provided for in the aforesaid license and permit, and that ever since the aforesaid issuance of said license and permit it has acted thereunder and is still acting thereunder as a foreign corporation doing business in the State of Illinois. That it in no manner was interested in the transactions between said plaintiffs' and said Carl Reiss, which resulted in said supposed debit balance and indebtedness due from said Carl Reiss to said plaintiffs and that it was in no manner interested in said debit balance and 'indebtedness or in any collateral deposited by said Carl Reiss with said plaintiffs. That said supposed obligation of this defendant set forth in said first count of said declaration was made in the State of Illinois and the said supposed writings obligatory set forth in said count of said declaration were made and delivered to the plaintiffs in the State of Illinois and not any other place and that said supposed obligations of said defendant declared upon by the plaintiffs in said first count of the declaration were not within the authorized power of the defendant under its permit and license issued to it by the State of Illinois as a foreign corporation and were not within its corporate powers as a foreign corporation in the State of Illinois and were and are wholly ultra vires.”

The power given to defendant corporation upon which the "plaintiffs seem principally to rely, is that contained in its eighth plea, which is to the effect that it has power, “to purchase . . . own . . . hold . . . factories and all other things of whatever kind and nature, suitable, necessary, useful or advisable in connection with any or all of the objects hereinbefore or hereinafter set forth, ’ ’ and it is argued that this clause gave the defendants the power and right to purchase these securities. By section 103 of chapter 32, Ill. State Bar Stats. 1935, it is provided that:

“No foreign corporation shall transact in this State any business which a corporation organized under the laws of this State is not permitted to transact. A foreign corporation which shall have received a certificate of authority under this Act shall, until a certificate of revocation or of withdrawal shall have been issued as provided in this Act, enjoy the same, but no greater, rights and privileges as a domestic corporation organized for the purposes set forth in the application pursuant to which such certificate of authority is issued ; and, except as in this Act otherwise provided, shall be subject to the same duties, restrictions, penalties and liabilities now or hereafter imposed upon a domestic corporation of like character.”

In Wheeler v. Some Savings & State Bank, 188 Ill. 34, an action of replevin was brought by a corporation organized under the laws of the State of Illinois to carry on a wholesale drug business, to recover certain warehouse receipts, the property of the corporation, representing certain whiskey, which certificates had been pledged with the bank as security for a debt of one of the directors of the corporation, who was also its general manager. In holding that the corporation had no power under its charter to pledge any of its assets as security for a debt of one of its officers, the Supreme Court said:

“It is not claimed that the company was in any way responsible for or interested in the debt of its general manager, Peter J. Singer, to the bank, or that the pledging of its property to secure this debt was for its benefit or for any corporate purpose. Such a corporation has no corporate power to become the mere surety of another or to pledge its property for the payment of the debt of another in which it has no interest or for which it is in no wise responsible and for mere accommodation. Its charter is the measure of its powers, and all power not expressed or fairly to be implied is denied to it. The power to lend its credit to another or pledge its property to secure the debt of another in a manner in which it has no interest or is not for its benefit, cannot, as a general rule, be implied. 7 Am. & Eng. Ency. of Law (2d ed.) 788.”

It is claimed by plaintiff, however, that in protecting this employee Reiss, among others, in their stock purchases, and in preventing their stocks from being sold for the purpose of settling any margin accounts which they might owe to brokers, the power to do so can be said to be implied and to be comparable to that assumed by certain corporations in establishing a pension fund for its employees, and the case of Hems v. National Bank of Commerce, 237 Fed. 942, among other cases, is cited as authority for this claim. In that case, the court held that the corporation in question had the power to establish such a fund for its employees, but, among other things, said:

“The tests in regard to all such matters are: Is the act or transaction prohibited by the charter or other law? Is the act or transaction reasonably suitable and necessary for the carrying on of the business for which the corporation was created and organized? Is the act or transaction performed in good faith, or as a mere cloak to some illegal or fraudulent act?”

In Best Brewing Co. v. Klassen, 185 Ill. 37, the brewing company was sued on an appeal bond given in a forcible entry and detainer suit brought against one of its customers. The bond was signed by the brewing company by its president. The'defense was that the act of signing and giving the bond was ultra vires, and beyond the corporate power of the defendant corporation. From a reading of the opinion, we conclude that in answer to such plea, it was represented by the plaintiff in the suit on the bond, that in so signing the bond for one of its customers, that the brewing company had the implied power to execute such a bond for one of its customers, inasmuch as it would reap a benefit by so doing, and the Supreme Court said:

“We think the primary question here is not whether appellant has reaped a benefit from the act of becoming surety for Bounds upon the bond, but whether the act of signing it was within the scope of its corporate authority. The purpose of the corporation, as expressed in its charter, is to manufacture and sell ale, beer and porter and carry on a general brewing business. It would seem no acts could be more unlike than the doing of those authorized by the charter of the company and the signing of appeal bonds as surety. The instrument was executed in a suit not by or against the corporation, but by a third person against another to recover possession of a house. Prima facie the signing by the company of an appeal bond in such a suit was an act beyond the purpose for which it was organized, and consequently illegal. If it had been shown that it was executed clearly for the purpose of promoting or protecting its own business of brewing or selling beer, etc. — that is to say, if the act had been reasonably necessary to accomplish the end for which the corporation was formed, — it would have been within the scope of the corporate power. But it cannot be held that every act in furtherance of the interests of a corporation is inter vires. Many acts can be suggested which, though beneficial to the business of a corporation, are too remote from its general purposes to be deemed reasonably within its implied powers. What is and what is not too remote must be determined according to the facts of each case. The rule has been stated to be: In exercising powers conferred by its charter, a corporation ‘may adopt any proper and convenient means tending directly to their accomplishment, and not amounting to the transaction of a separate, unauthorized business.’ Clark v. Farrington, 11 Wis. 340.” See also People ex rel. v. Wiersema State Bank, 361 Ill. 75.

We are of the opinion that the making of this contract by defendant, to purchase these stocks for the purpose of protecting one of its employees in his stock speculations, which the record indicates is the fact, was so remote from any of the powers granted to the defendant corporation, that such contract must be held to be ultra vires and beyond the power of the corporation to make. The judgment of the superior court is affirmed.

Affirmed.

Hebel and Denis E. Sullivan, JJ., concur.


text:
    Eli F. Seebirt et al., Appellees, v. Benjamin D. Ritholz, Appellant.
    Gen. No. 37,844.
    Opinion filed November 20, 1935.
    Rehearing denied December 4, 1935.
    Aaron Soble, of Chicago, for appellant; Irving Goodman, of Chicago, of counsel.
    Guy M. Blake, of Chicago, for appellees.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

By this appeal the defendant, Benjamin D. Ritholz, seeks the reversal of a judgment against him for the sum of $12,179, entered in the circuit court of Cook county on the 14th day of July, 1934. The trial was by the court without a jury. The court found for plaintiffs and entered judgment on its finding.

On June 15, 1924, the Ritz-Surf Building Corporation executed its 10 bonds in the sum of $1,000 each, with interest thereon at the rate of 6% per cent per annum, evidenced by interest coupon notes, payable semiannually, which coupon notes were attached to said bonds. By the terms of the bonds, they matured on June 15, 1934. On the back of each of the bonds, at the time of their issuance, there appeared the following :

“Guaranty”

“For the purpose of negotiating the sale of this bond, in which sale the undersigned, Benjamin D. Ritholz, has a pecuniary interest, and for other valuable considerations, the receipt whereof by the undersigned is hereby acknowledged, the undersigned does hereby guarantee prompt and punctual payment of the within bond, and of the interest coupons thereto attached, as they respectively become due, whether by lapse of time or by virtue of any provision in the Mortgage or Deed of Trust securing the same.

“The undersigned hereby expressly authorizes the maker of the said bonds, its successors and assigns, without notice to the undersigned, to obtain any extension or extensions of time of said bonds, and of any or all of the interest coupons thereto attached, which it may see fit; and for the same consideration the undersigned also waives any notice of nonpayment of said bonds or bond and of any of the coupons thereto attached whether such payment shall become due by lapse of time or by virtue of any provision in the Mortgage and Deed of Trust securing the same; and for the same consideration, the undersigned also agrees that in case of non-payment of this bond or of any of the interest coupons thereto attached whenever and howsoever the same or any part thereof may become due, suit may be brought against the undersigned to enforce liability hereunder, and that in any such suit the maker of said bonds or bond and others may be joined as defendants with the undersigned, at the option of the plaintiff or complainant in such suit, and for all of the above the undersigned hereby binds himself, his heirs, legal representatives and assigns, jointly and severally.

Benjamin D. Bitholz’’

Bach of the bonds contains the following provision:

“The bond is one of an issue of coupon bonds of the mortgagor, designated as the Bitz-Surf Apartments, Six and One-Half Per Cent First Mortgage Serial Gold Bonds, of like tenor and effect, excepting as to denomination, number and date of maturity, amounting in the aggregate to the principal sum of Two Hundred Fifteen Thousand Dollars ($215,000.00) and maturing serially, and all issued under and pursuant to a first mortgage and deed of trust (hereinafter termed the ‘Indenture’), dated as of June 15, 1924, duly executed by the mortgagor, to Simon J. Straus, as Trustee, to which indenture reference is hereby made for a description of the properties mortgaged, the nature and extent of the security, the nature and extent of the liability of the mortgagor, the rights of the holders of the bonds, and the terms and conditions upon which said bonds are issued and are secured.

“In the event of certain defaults specified in said' indenture, the principal of the bonds issued thereunder may become or be declared due and payable before maturity, in the manner and with the effect provided in said indenture.

“Mb recourse shall‘be had for the payment of the principal of or the interest upon this bond, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the said indenture, against any incorporator, stockholder, officer or director, past, present or future, of the mortgagor, or of any successor or predecessor corporation, whether by virtue of any constitution, statute, or rule of law, or by the enforcement of any assessment or penalty, or otherwise.

“This bond shall not become valid or be obligatory for any purpose, until it shall have been authenticated by execution by the trustee under said Indenture, of the certificate endorsed hereon.”

The trust deed given to secure the bonds contains the following provision;

“The Mortgagor covenants that if any one or more of the aforesaid events of default shall happen, then, and in every such case, it will pay to the Trustee for the benefit of the holders of the bonds and coupons then outstanding, the whole amount which then shall have become due and payable on all such bonds and coupons then outstanding, for interest or principal or both, as the case may be, and with interest upon the overdue principal and installments of interest at the rate of seven per cent (7%) per annum; and in case said Mortgagor shall fail to pay the same forthwith upon demand, the Trustee in his own name, and as Trustee of an express trust, shall be entitled to recover judgment against said Mortgagor for the whole amount so due and unpaid. ’ ’

By the declaration filed in the cause, it is alleged that certain of the interest coupon notes due and payable on the 15th day of June, 1931, and on the 15th day of December, 1931, in the amount of $32.50 each, were not paid; that default was made in their payment, and that the said default continued for a period of more than 30 days thereafter; that thereupon the successor trustee in the deed of trust, in accordance with the terms thereof, by notice in writing mailed to the Ritz-Surf Building Corporation, declared that the principal of all of the bonds secured and then outstanding were due and payable immediately, and that said principal' sum then became forthwith due and payable; that thereafter the successor trustee filed a suit to foreclose the trust deed in the circuit court of Cook county, Illinois, and that on April 18, 1932, a decree of sale was entered on the whole of the mortgaged premises, whereby the principal of all of the said bonds became due and payable in accordance with the terms of the bonds and the indenture securing the same, and that no part of the principal or interest due on said bonds since June 15, 1931, had been paid, to the damage of the plaintiffs in the sum of $15,000. In addition to the special count containing the allegations mentioned, plaintiffs also filed the common counts, together with a copy of the account sued on, and an affidavit of claim, in which it is recited that plaintiffs ’ action is based upon the written guaranty signed by defendant hereinbefore referred to, and that there was due and owing plaintiffs, at the time of the filing of the declaration on June 10,1932, the sum of $10,673.46, together with interest on said sum at the rate of seven per cent from April 28, 1932. Defendant filed various pleas to the declaration together with an affidavit of merits.

It is not denied that defaults in payment had taken place, as alleged. Defendant’s position, however, is that, notwithstanding this fact, still, by the terms of the trust deed, the exclusive right to sue on the bonds is vested in the trustee; that the right of the trustee to accelerate the maturity of the bonds is for the sole purpose of enabling the trustee to institute foreclosure proceedings, and does not confer upon the bondholder the right to sue upon an unmatured bond; that after the trustee had chosen to accelerate the maturity of the bonds by foreclosure proceedings, a bondholder cannot maintain a suit at law until after a sale has been held and a deficiency shown; that to permit plaintiffs to recover on the bonds in a suit, would be contrary to the provision of the trust deed, which, it is claimed, forbids preferences between bondholders, and that the bonds sued on expressly provide that no officer of the defendant corporation shall be in any way liable on the bonds, and that, therefore, the defendant, being admittedly an officer of the defendant corporation, cannot be thus sued. It is to be noted that in the “Guaranty,” upon which this action is based, the defendant, the signer thereof, by its terms, “does hereby guarantee prompt and punctual payment of the within bond, and of the interest coupons thereto attached, as they respectively become due, whether by lapse of time or by virtue of any provision in the mortgage or deed of trust securing the same”; that the guarantor, the defendant, “waives any notice of non-payment of said bonds or bond, and of any of the coupons thereto attached, whether such payment shall become due by lapse of time or by virtue of any provision in the mortgage or deed of trust securing the same, ’ ’ and that the guarantor, the defendant, also “agrees that in case of non-payment of this bond or of any of the interest coupons thereto attached whenever and howsoever the same or any part thereof may become due, suit may be brought against the undersigned (the defendant) to enforce liability hereunder.” It is also to be noted that there is a provision in the trust deed to the effect that if “default shall happen” as to any of the covenants in the trust deed, “then, and in every such case, the mortgagor (defendant) will pay to the benefit of the holders of the bonds and coupons then outstanding, the whole amount which then shall have become due and payable, with interest,” etc.

This court, in Goodman v. Fridstein, 277 Ill. App. 307, cited the case of Levy v. Barley, 211 Ill. App. 498, where this court held that under a similar situation as that ’presented here, and where suit was brought against a guarantor, that “the bonds, and trust deed which was executed to secure their payment, appear to be but a single transaction, and in determining the liability of defendant upon his guaranty, these instruments should be read together..” Citing Kraft v. Hora, 159 Ill. App. 363. The court, also in Levy v. Barley, supra, said that “the time of payment as fixed in the note may be controlled by a separate written agreement made at the time of the execution of the note.” Citing Hunter v. Clarke, 184 Ill. 158. Further, in Levy v. Barley, supra, it was said that “the obligation of the defendant was to pay the bonds and interest becoming due thereon at maturity, and the date of maturity is not necessarily the date specified in the bonds themselves. It may be, and we think in this case, recourse should be had in determining the date of the maturity of the trust deed. This instrument provides that if the maker of the bonds ‘shall fail or refuse to pay the bonds, or any of them, or any installment of interest thereon, when due and payable upon presentation at the office of the Metropolitan Trust & Savings Bank of Chicago in the state of Illinois, and the same shall remain unpaid for a period of 30 days, then all of the bonds secured by this deed of trust shall become due and payable.’ ”

We can see no material distinction between the cases cited and the case at bar. As to the cases cited by defendant, they all seem to turn upon the question as to whether an individual bondholder can proceed against the mortgagor in defiance of the terms of the mortg-age. No such case as that is presented here. In this case, the guarantor agreed to pay each of these bonds in case defaults in the payment thereof oc-, cnrred, as it is admitted, they did. The “guaranty” executed by the defendant recites that it was made “for the purpose of negotiating the sale of the bond.” Bach bond sued upon contained this guaranty, and it is our opinion that the guaranty was given for the purpose of meeting just such a situation as is presented in this case, that is, that the guarantor would pay in case of the defaults in payment by the mortgagor, which admittedly took place.

We are of the opinion that the trial court was correct in its findings, and that the judgment should be, and it is hereby affirmed.

Affirmed.

Hebel, J., concurs.

Denis E. Sullivan did not take part.


text:
    Joseph Eiger et al., Appellants, v. Jarvis Hunt, Appellee.
    Gen. No. 37,854.
    Opinion filed November 20, 1935.

      Lederer, Livingston, Kahn & Adler, of Chicago, for appellants; Irving S. Adler, of counsel.
    Allen G-. Mills, of Chicago, for appellee; Richard Sherman Bennett, of Chicago, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

This is an appeal from a decree entered in a foreclosure proceeding, by which complainants are denied a decree for a deficiency, found by a master in chancery to be due, after a sale made by the master of the mortgaged property, under a decree ordering the sale of the property.

The bill of complaint in the cause recites that on February 4, 1928, the defendant, Jarvis Hunt, being justly indebted to complainants in the sum of $543,000, made, executed and delivered a series of promissory notes for said sum, all bearing date of February 4, 1928, with interest at the rate of 6% per cent per annum before maturity, and seven per cent after maturity, all payable at the office of Eiger Brothers, or at such place as the holders of the notes might designate, and that the notes and trust deed given to secure the payment of the same provided that in case of default for three days, at the election of the legal holders of the principal notes, the sum secured thereby, together with accrued interest, should become at once due and payable. It is alleged that at the time of the making of the notes, a trust deed to the Chicago Title & Trust Company on certain real estate in the City of Chicago, county of Cook, was given to secure their payment. The defendant, Hunt, was personally served with summons in the cause. After a reference to a master and upon his report, the usual decree was entered, ordering the sale of the property, and that in the event a deficiency should remain after such sale, then the complainants should have a decree for the amount remaining due them. By this decree, it was found that the sum due and unpaid was $595,266.63. At a sale subsequently made and reported by the master, in pursuance of such decree, the property was bid in for the sum of $500,000, leaving a deficiency in the amount of $98,112.43, which included the costs of the proceeding, as found by the master. There is no question raised here but that the sale was made in strict conformity with the law, except as hereinafter stated. When the master’s report of sale was brought before the court for confirmation, the defendant obtained leave to file objections, which were, in substance, that the complainants in their bill failed to charge that the defendant was personally liable; that the complainants in such bill, and in the prayer for relief, failed to ask for a deficiency decree against the defendant, and that the complainants, or some of them, held the premises in foreclosure for a considerable period of time; that when the owners of the notes, the complainants in the bill of complaint, undertook to bid in, and did bid in, the property at the foreclosure sale, it became, and was, their duty to have bid a reasonable amount for such property, which was an amount at least equal to the amount found to be due by the decree of sale entered in the case, and that complainants had no right in a proceeding in equity to foreclose a mortgage to bid less than the reasonable value of the premises involved, and thereafter obtain a deficiency decree, or judgment, for the difference between the amount voluntarily bid and the actual value of the property.

Upon a hearing on the objections, the court entered a decree approving the master’s report of sale, except as to the claimed deficiency. There is no question raised as to the amount of the deficiency, as found by the master. In its decree, after approving the master’s report of sale, the court found, in terms, “that the equities of the case are with the defendant, Jarvis Hunt, in so far as the entry of a deficiency decree is concerned, and the objections to the conclusions of the Master in Chancery that a deficiency decree be entered, . . . are hereby sustained and the application of the complainants for a deficiency decree against the defendant, Jarvis Hunt, . . . is hereby denied. ” It is from this latter portion of this decree that the appeal herein is being prosecuted.

As stated, defendant insists that a “deficiency decree is not permissible when the bill does not allege personal liability and does not contain a prayer for a deficiency.” By section 16 (¶ 17) of chapter 95, Ill. State Bar Stats. 1935, it is provided that “in all decrees hereafter to be made in suits in equity directing foreclosure of mortgages, a decree may be rendered for any balance of money that may be found due to the complainant over and above the proceeds of the sale or sales.”

“Decree” is defined in Black’s Law Dictionary, page 341, as follows: “Decree. In practice. The judgment of a court of equity . . . answering to the judgment of a court of common law. A decree in equity is a sentence or order of the court, pronounced on hearing and understanding all the points in issue, and determining the rights of all the parties to the suit, according to equity and good conscience. 2 Daniell, Ch. Pr. 986. Decree is the judgment of a court of equity, and is, to most intents and purposes, the same as a judgment of a court of common law.” Standard Dictionary defines “decree” as follows: “Eng. & U. S. Law. A judicial decision made of record in the cause; as, a decree in chancery; commonly made interchangeable with judgment. A sentence of a civil court; final judgment. ’ ’

In Metz v. Dionne, 250 Ill. App. 369, page 373, it is held that “the right to a personal judgment in fore closure proceedings does not rest' on general equity principles, but upon the legal obligation of the maker of the note. ’ ’

Whatever the courts of other jurisdictions may have held with reference to the contentions of defendant, that complainant is not entitled to a decree for a deficiency found to exist after the bona fide sale of the mortgaged property made under this decree of sale, such holdings have no relevancy here. We are of the opinion that it is the law of this State that, under the showing made here, the complainants were entitled to a decree for the amount of the deficiency found to be due after sale of the mortgaged premises, and that the chancellor was in error in refusing to enter such a decree.- The cause is, therefore, reversed and remanded with the direction that the objections to the master’s report of sale be overruled, and that a decree be entered in conformity with that report.

Reversed and remanded with directions.

Hebel, J., and Denis E. Sullivan, J., concur.


author: Mr. Justice Hebel

text:
    Otto Kerner, Attorney General of State of Illinois, Appellant, v. William Hale Thompson and the Waterway and Flood Control Association of the Mississippi Valley, Appellees.
    Gen. No. 37,774.

      Opinion filed November 20, 1935.
    Otto Keener, Attorney General, for appellant; James G. Skinner, Assistant Attorney General, of counsel.
    Jambs W. Breen, of Chicago, for appellee William Hale Thompson.
   Mr. Justice Hebel

delivered the opinion of the court.

It appears from" the record in this court that the plaintiff, Otto Kernel, as attorney general of the State of Illinois, is here on appeal from a certain portion of a decree entered "by the chancellor in a bill filed by the attorney general for an accounting of funds received by the defendants. The action is, as we have stated, one in chancery instituted by the attorney general of the State of Illinois against William Hale Thompson, the Waterway and Flood Control Association of the Mississippi Valley, a corporation, and others to protect and preserve a certain fund of money donated in 1927 for the use and benefit of flood sufferers in the Mississippi Valley, and to require Thompson to account for and restore as a charitable trust the portion of the fund not used for the original purpose.

The case was heard by the court upon the complaint as amended, the answer as amended, the replication of the plaintiff, and upon a stipulation of facts read into the record and set out in full in the decree. No point has been raised on the pleadings.

It appears from the facts in the record that following the great flood in the Mississippi Valley in April, 1927, the defendant, William Hale Thompson, then mayor of the City of Chicago, by proclamation and appeals to the public, received from the public as- donations for the relief of the flood sufferers the sum of $139,772.47. Of this sum the defendant, Thompson, paid for the relief of flood sufferers the sum of $35,846.51, to which allowance by the court in the accounting no objection was made.

On December 16, 1930, the defendants organized an Illinois corporation known as the Waterway and Flood Control Association of the Mississippi Valley, and shortly thereafter the fund was transferred to this corporation. Out of the fund so transferred, a total of $72,794.79 was disbursed for the purposes appearing in the decree entered by the court, and it is from this portion of the decree that plaintiff complains the court erred in allowing such deductions.

At the final hearing of the canse all defendants were dismissed out of the case except Thompson, the Waterway and Flood Control Association of the Mississippi Valley, a corporation, and the First National Bank of Chicago.

The plaintiff’s theory in this case is that under the cy pres doctrine of construction the total sum of $103,925.96 on hand after relief had been given to the flood sufferers in 1927, should have been applied to a purpose as nearly as possible to the charitable purpose for which the monies were originally donated, and that the use and application of the sum of $72,794.79 was not a cy pres use and application. To this theory the defendant answers that the use and application of said sum of $72,794.79 by said Thompson was a proper use under the cy .pres doctrine.

The defendants filed their motion to dismiss this appeal upon the ground that there was entered in the above entitled cause a final decree which found that the defendant, William Hale Thompson, as trustee of the fund “. . . did not act improperly or beyond his authority as such trustee in the use or application of the sum of $72,794.79,” and decreed that the use and application of the sum of $72,794.79 made by the defendant be approved and affirmed; and further ordered :

“That the defendants, William Hale Thompson and The Waterway and Flood Control Association of the Mississippi Valley, a corporation, be and they each are hereby directed to transfer and set over within ten (10) days from the date of this decree to the custody and control of the American National Red Cross, a corporation, as trustee, the said fund or sum of $31,131.17 ... to be used by said American National Red Cross for the relief of those who may be caused suffering in the future by reason of any floods which may occur in the Mississippi-Valley, or for a purpose, as closely related to the original purpose as may be, and in default of the defendants, or either of them, joining in or directing the transfer and setting-over of said fund in the sum of $31,131.17, to said American National Red Cross, then the defendant, The First National Bank of Chicago, upon the expiration of ten (10) days from the date of this decree, shall be and it is hereby ordered and directed to transfer said sum of $31,131.17 ... to said American National Bed Cross, a corporation, as trustee.”

It further appears from the suggestions in support of defendants’ motion that the defendants complied with the provisions of the decree requiring them to turn over the sum of $31,131.17 to the American National Bed Cross, in accordance with the prayer of the bill and the terms of the decree. The fact that the money was paid is not denied by the plaintiff in this proceeding.

The plaintiff as attorney general of the State of Illinois filed a counter-suggestion to the motion to dismiss the appeal upon the ground that the suit was not a suit for the interest or benefit of the plaintiff, but to restore the funds of a public charitable trust, and that the plaintiff received no benefit personally whatever from this decree, but merely acted in bringing and prosecuting said suit in performance, of his official duty, and contends that the findings and decretal orders are severable for the following reasons:

“ (a) That the court finds that the defendant and appellee, William Hale Thompson, out of. the funds collected by him applied to the purposes of the trust the sum of $35,846.51;

“'(b) That of the fund collected said defendant and appellee applied the sum of $72,794.79 to various objects and purposes, the application of which was approved by the court, but which plaintiff contends under this appeal was improperly applied,” and calls this court’s attention to this part of the decree:

“It Is Further Ordered, Adjudged ahd Decreed that the payment of' said sum of $31,131.17 to the American National Bed Cross, a corporation, shall be without prejudice to the right of said complainant, Otto Kerner, as Attorney Gfeneral of the State of Illinois, to appeal from any part or portion of this decree. ’ ’

' In the consideration of this motion, as no objection has been made to this procedure, we will consider the motion in the nature of a plea of the defendants of a release of errors, and will consider the suggestions and counter-suggestions upon the question as to whether or not the plea of release of errors sets up a good defense which would justify this court in dismissing the proceedings.

One of the contentions urged by the defendants is that the plaintiff having accepted the benefits of the decree and received from the defendants the amount found to be due upon an accounting cannot prosecute a writ of error or take an appeal to reverse the decree entered in the above entitled cause.

The rule that one who accepts the benefits of a decree cannot prosecute a writ of error to reverse it has been passed upon by the Supreme Court of this State, and in a case entitled Kellner v. Schmidt, 237 Ill. App. 428, we follow this rule in its application to the facts in that particular case, and we there said:

‘ ‘ That one who has accepted the benefits of a decree cannot afterwards prosecute a writ of error to reverse it has been frequently passed on by the Supreme Court of this State. (Thomas v. Negus, 7 Ill. 700; Morgan v. Ladd, 7 Ill. 414; Holt v. Rees, 46 Ill. 181; Corwin v. Shoup, 76 Ill. 246; Moore v. Williams, 132 Ill. 591; Trapp v. Off, 194 Ill. 287; Scott v. Scott, 304 Ill. 267; Gridley v. Wood, 305 Ill. 376.) That being, so we need not consider cases cited from other jurisdictions. Many of them are to the effect that a party who has received and accepted a part of a judgment or decree to which he is absolutely entitled, and whose right thereto will not be affected by a reversal, may have the judgment or decree reviewed as to parts that are controverted. ...

“But whether or not the decree in such a case is severable, plaintiffs in error having availed themselves of its benefits must be held, both under the general rule (3 C. J. 682; notes to 29 L. R. A. [N. S.] 2) and the authorities in this State, to have accepted the unfavorable as well as the favorable rulings.”

This quotation is from a case in which certiorari Avas denied by the Supreme Court in this State. See also Langher v. Glos, 276 Ill. 342.

It Avould seem that the performance by the defendants in paying the money as decreed would estop the plaintiff to appeal this case. The action was one for an accounting. The court was to determine from the evidence before it as to the amount of money received by these defendants, as stated in this opinion, and in order to determine the net amount in the hands of the defendant it was necessary to properly consider the deductions that should be alloAved, so that the court could finally determine the balance.

While from the record it is apparent that part of the monies expended by these defendants was considered a proper alloAvance to be deducted from the amount received, as to other deductions, the question was raised whether they Avere a proper allowance, and it Avas for the court to pass on that question. Having passed upon it, and the result reached and a decree entered finding as it did the sum total due on accounting, the performance required by these defendants, and the acceptance by the plaintiff of the result of the accounting by the defendants and acceptance of payment of the monies as required to the American National Red Cross, the plaintiff is estopped to prosecute this appeal.

The plaintiff, hoAvever, suggests that by the decree his right to appeal was preserved by the provision of the decree above quoted in this opinion. In furtherance of this provision the plaintiff limited his appeal to that portion of the decree of the court which found that the defendants in the deduction of the sum totaling $72,794.79, acted properly, and approved such deduction, and points to the Civil Practice Act, ch. 110, as justifying a partial appeal. Section 79 of the act provides that:

“The Supreme Court may, by general rules, regulate and determine the practice and procedure by which cases shall be reviewed in the Appellate and Supreme Court, including ... the manner of giving notices, the specifications of grounds of appeal, . . . and all other matters of practice in connection with the review of cases.” Ill. State Bar Stats. 1935, ch. 110, ¶ 207.

And Rule 33:

“ (Form and Contents of Notice of Appeal.) . . .

(2) It shall specify and describe the order, determination, decision, judgment or decree which is being appealed from, and if the appeal is from a part thereof only, it shall specify which part.”

The rule as cited is controlling in matters which come within its provisions, still in matters of accounting, such as in the instant case, where the sum total received and the sum total expended, also the balance to be accounted for, are for the court to pass' upon, the conclusion of the court is not severable. The-plaintiff cannot split up an action of this kind by questioning the admissibility of the court’s ruling in allowing deductions from the amount which the defendants received. Otherwise, if that were permissible the plaintiff in a bill for an accounting could accept whatever sums were allowed and still raise the question as to the proper allowance in an action of this kind on appeal. That would be against the weight of authorities which have established the rule in' this State that a person who - has accepted the benefits of a decree cannot afterwards prosecute a writ of error on the ground that the court did not properly adjudicate the issue.

It is next pointed out by the plaintiff that the suit in question was not for the interest or benefit of the plaintiff, but rather to restore the funds of a public charitable trust, and. that the plaintiff was acting in his official capacity, and not in a private capacity. Of course that is true, but the question then arises as to whether by acts of the attorney general representing the people of the State of Illinois, the people are bound by a performance of the terms, of a decree entered in a suit instigated by the attorney general in their behalf.

Upon the question as to the binding effect of a decree upon the people of the State of Illinois, the Supreme Court, in Healy v. Deering, 231 Ill. 423, in a proceeding wherein the title was involved as to the possession of a public street, held that the decree against the City of Chicago was binding upon the people of the State of Illinois, and in any action brought by the City of Chicago for the purpose of protecting the public rights, the State would be bound by the result, because in such action the City of Chicago, as trustee, would represent the people of the State by virtue of the authority given it to maintain such actions, and both would be legally bound thereby.

By analogy, the appearance of the attorney general as plaintiff in this case on behalf of the People of the State of Illinois, the entry of the decree in this particular case, the performance of the decree as required by its terms, and the acceptance of such performance, are as fully binding upon the people as if the litigation were between individuals in a bill for an accounting, and where one of the parties accepts the benefits derived from the entry of a decrée, he cannot thereafter complain that the decree was erroneous.

For the reasons stated, the appeal is dismissed.

Appeal dismissed.

Hall, P. J., and Denis E. Sullivan, J., concur.


text:
    In re Estate of Magdalena W. Cook, an Insane Person. Annie Corr, Plaintiff in Error, v. Chicago Title & Trust Company, Defendant in Error.
    Gen. No. 37,841.
    Opinion filed November 20, 1935.
    Welch & Hoffman, of Chicago, for plaintiff in error ; Minian H. Welch and Lester N. Salwin, of Chicago, of counsel.

      Ashcraft & Ashcraft, of Chicago, for defendant in error; Russell F. Locke, of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

The petitioner in error seeks to review the record for the purpose of a reversal of an order of the circuit court of Cook county entered on November 28, 1933, in a proceeding had upon appeal from the probate court of Cook county. This order denied the petitioner an interest in a bank account in the First Union Trust and Savings Bank, which was formerly in the names of the petitioner and Magdalena W. Cook, the defendant in error. Since the deposit was made, Magdalena W. Cook has been declared an insane person.

The action is based on the petition of Annie Corr, filed in the probate court of Cook county, and the answer of the conservator. The petition alleges that Annie Corr had been employed as a companion and housekeeper by Magdalena W. Cook during 1925, and for many years prior thereto, and that Magdalena W. Cook owed the petitioner, on said date, a debt of gratitude and considerable money; that Magdalena W. Cook established .a bank account at the First Union Trust and Savings Bank in an amount approximating $5,000, and that said amount was established jointly with the petitioner, with direction to the petitioner on the part of Magdalena W. Cook that if the petitioner should ever be in need said account was to be enjoyed by the petitioner jointly with Magdalena W. Cook.

The petition prays that the court direct the conservator to pay out of the proceeds of the estate of Magdalena W. Cook, one-half of the account established at the First Union Trust and Savings Bank. The conservator’s answer was in the form of a denial. The facts in support of the petition are that during 1926 and 1927, the petitioner, Annie Corr and Magdalena W. Cook, lived together in an apartment in Chicago. Mrs. Cook was a widow of substantial means, and employed the petitioner as her companion and housekeeper. It further appears from the facts that in April 1926, Mrs. Cook opened a joint account, in her name and in that of the petitioner, at the First Union Trust and Savings Bank, and in this account made an initial deposit of $4,500; that upon the opening of the account, the petitioner and Mrs. Cook signed an agreement with the bank, contained in the joint signature card. The joint signature card is as follows:

“The undersigned hereby agree to the By-Laws, Bules and Begulations governing the Savings Department of First Trust and Savings Bank, Chicago, and further agree that all deposits in this account, or any part thereof, or any interest or dividend thereon, may be paid to any of the undersigned, whether the other or others be living or not, on the receipt or acquittance of any of the undersigned.”

It appears from the evidence that in the fall of 1926, Mrs. Cook had a conversation with the witness Emily B. McDonald about a bank account, and produced a bank book issued by the First Union Trust and Savings Bank and stated that she had opened the account jointly with the petitioner; that she wished to make a gift to her, and that she wanted her to have the money to use the same as she, Mrs. Cook, used it; that at any time the petitioner wished, she was at liberty to use it; that she, Mrs. Cook, had entered into this joint account for herself and the petitioner; that their names were both on it; that she was fixing this gift for the petitioner to have, and that they were both using it.

There was also the evidence of the witness Edith Hansen that during a visit with Mrs. Cook in the fall of 1926, Mrs. Cook talked with her about a bank account; that Mrs. Cook produced a bank book and stated that she was giving it to Nancy for Nancy to have; and that a passbook was kept in a desk to which Annie Corr had free access at all times.

Magdalena W. Cook was adjudged insane, and on or about October 5, 1927, the Chicago Title & Trust Company was appointed conservator of her estate. The conservator received the passbook, which was found in a hotel vault box and which evidenced the joint account of Mrs. Cook and Annie Corr in the First Union Trust and Savings Bank. On November 25, 1927, the conservator had the joint account, which had a credit balance of $4,163.25, transferred to its own name as conservator, and a new passbook issued to it. This balance was later withdrawn by the conservator.

The question here involved is: Has this court jurisdiction to direct that the petitioner is entitled to one-half of the amount deposited by Magdalena W. Cook in the joint account? In construing this joint account established by the parties, it would seem that it was clearly the intention of Mrs. Cook that either of the parties to the signature card could withdraw moneys from the bank any time prior to the death of one of the parties, and that even after the death of one of the parties the survivor could draw on the fund. But this in and of itself does not give the court the right to direct division to be made of the moneys deposited. The contract is an entire one, and by its terms is not divisible. We doubt the wisdom of the petitioner’s contention that by the terms of the contract the court could divide the moneys between the parties and hold that such division would be proper.

There was a substantial amount on deposit in the account, which was governed by the terms of the contract, and it is not for this court to pass upon the question of the propriety of the contract, but only to determine the question as it is presented. In determining the right of the petitioner to one-half of this fund, it would seem to us that the making of such division would he clearly a violation of the terms of the agreement. As the parties are still living, the question of the right of a survivor is not involved. The language of the contract is plain. The parties could withdraw the fund, or as much of it as they each needed during the continuance of the deposit, and even in the event of the death of one of the parties, which did not occur, the other could withdraw the fund.

If we accept the suggestion made by the petitioner that the fund be divided, we would be interjecting into this contract by construction a provision never intended by the parties. The court always takes the contract as it finds it and attempts from the four corners of the instrument to construe and carry out the intention of the parties.

The position of this court is sustained by what has been said in 13 Corpus Juris on the subject of contracts, at page 561:

“1. As a general rule it may be said that a contract is entire when by its terms, nature and purpose it contemplates and intends that each and all of its parts and the consideration shall be common each to the other and interdependent. On the other hand, it is the general rule that a severable contract is one which in its nature and purpose is susceptible of division and apportionment. Ordinarily when one party contracts to do certain work or to perform certain services, and the other to pay a certain price for the same, the contract is to be regarded as entire, and an agreement to do several things at several times is to be regarded as divisible. But it is very difficult to lay down a rule which will apply to all cases, and consequently each case must depend very largely on the terms of the contract involved. A contract is not entire and indivisible because embraced in one instrument and signed by the same parties, nor is it severable because embraced in more than one instrument, nor because only partially to be performed within the state. A contract in the alternative has been held not severable.

‘ ‘ 2. Primarily the question whether a contract is entire or severable is one of intention, which intention is to be determined from the language which the parties have used and the subject matter of the agreement. A contract may both in its nature and its terms be severable and yet rendered entire by the intention of the parties. ’ ’

Upon the question here discussed, the Supreme Court in the case of City of Chicago v. Sexton, 115 Ill. 230, held:

“We entirely concur in the ruling of the Superior court on the first ground urged for a reversal of the judgment below, which is, that that court erred in not holding that the contract between Sexton and the city is, by its terms, divisible, and that therefore a forfeiture of a part did hot affect the residue. In our opinion, this construction of the contract is not admissible. The undertaking of Sexton is, ‘for and in consideration of the payments to be made. ... to furnish, deliver, set up, place and fix complete all the iron work required in the erection of a building for a city hall,’ etc.; and the undertaking of the city is ‘to pay to said party of the first part, when this contract shall be wholly carried out and completed on the part of said contractor, and when said work shall have been accepted by said mayor, the sum of $105,302.69.’ It is true the amount is made up by stating the estimated cost of each story separately, and the roof, and then adding the whole together; but this was, evidently, merely for the purpose of furnishing the data upon which the estimate was made, for there is nowhere any agreement to receive and pay for the work by stories. On the contrary, it has been seen payment is to be' made of the aggregate amount when the contract shall be wholly carried out. . . .

“We are clear in the opinion that the contract is an entire one, in which the consideration for each undertaking is the consideration for every undertaking, and in which the benefits presumed to result from the performance of the entire contract, instead of benefits presumed to result from the performance of separate parts of the contract, were in anticipation.”

From the conclusions reached by us it would appear from the contract and our opinion that the action by the petitioner was not properly maintainable and for the reasons stated, the order of the trial court is affirmed.

Order affirmed.

Hall, P. J., and Denis E. Sullivan, J., concur.