author: Mr. Presiding Justice Pulton

text:
    Adda Williams, Appellee, v. Walter W. Williams, Appellant.
    Gen. No. 8,837.

      Opinion filed January 14, 1935.
    Rehearing denied April 2, 1935.
    Lederer, Livingston, Kahn & Adler, of CMcago, for appellant; Sigmund Livingston, of counsel.

      Whitmore & Whitmore, of Bloomington, for appellee.
   Mr. Presiding Justice Pulton

delivered the opinion of the court.

On February 24, 1931, Adda Williams, the appellee, filed her bill for separate maintenance against her husband, Walter W. Williams, the appellant. The bill alleged their marriage on August 21, 1924; that they continued to live together until March 22, 1930, when the appellant wilfully left and abandoned his home and took up his residence separate and apart from appellee; that no children were born of the marriage ; that appellant had used intoxicating liquor to excess for more than two years, and during that time had been guilty of habitual drunkenness; that during the five years just previous to the separation, appellant regularly deposited $2,000 a month in the bank subject to her checks; that in August, 1930, the checking account was closed; that the appellant gave appellee many costly presents during their married life such as a $7,000 Packard sedan; that the separation was without any fault on her part; that in August, 1930, appellant asked her to sue for a divorce and threatened that unless she complied with such request he would cut off her credit with the merchants and no longer furnish her with the amount of money she had been accustomed to spend; that after August, 1930, appellant paid her $50 per week and paid bills for purchases she had charged to him until February, 1931, when he notified her by letter that he was sending her a check for $200, and that a like amount would be paid to her monthly as her allowance; that he would refuse to pay any further bills; that appellant wa,s a man of great wealth and at the time of separation was drawing a salary of $50,000 a year. The bill prayed for a decree of separate maintenance and support in accordance with the station in life in which appellee had lived as the wife of appellant, and in accordance with his ability to pay her, and also for support money pendente lite, and attorneys’ fees.

The answer of appellant admits the marriage and denies that he wilfully abandoned the home without fault on her part; alleges that it was the reckless and extravagant expenditures of money on the part of appellee which caused him to leave the home; that .he furnished appellee with a well furnished apartment, the use of an automobile and paid her bills until they became unduly large and unbearable; that the sum of $200 per month was amply sufficient to provide appellee with all the wants and comforts and necessities of life; that he had given appellee a large number of shares of stock in the Williams Oil-O-Matic Heating Corporation, and also money to buy other stocks; that appellee draws $50 per month from the United States Government under a war insurance policy on her former husband, and that there was no intent on his part to deprive appellee of ample support at all times.

Exceptions to the second and third paragraphs of appellant’s answer were sustained by the court. In the second paragraph the appellant admitted the excessive use of intoxicating liquor but averred that appellee knew of his habits in that regard before and after marriage and participated and joined with appellant in the use thereof. The third paragraph alleged facts concerning prior marriages of both parties and that appellee had advised appellant in the abandonment of his former wife.

Three petitions for temporary alimony were filed, but no allowance made by the court upon the representation made by appellant that he was paying appellee the sum of $200 each and every month. On May 8, 1931, the cause was referred to the master and in the order of reference the court reserved for further consideration and adjudication the question of alimony, temporary and permanent, solicitors’ fees and suit money to be allowed appellee. The master in chancery filed his report to which objections were filed by the appellant, and by order of court made to stand as exceptions. Upon a hearing of the exceptions the court sustained the same in part and overruled the balance, and entered a decree of separate maintenance for appellee, from which decree appellant appeals.

The facts are not materially controverted except as to financial matters. Appellant admits that he left the family abode and lived separate and apart from appellee, due to her very large expenditures. Appellee is 50 years of age and in fairly good health. She had been married twice before her marriage to appellant. The appellant had been married once previously and was divorced. Appellee had 2,100 shares of Williams Oil-O-Matic Heating Corporation stock, which she had. received either directly or indirectly from appellant. She also owned some Sears, Roebuck & Co. stock paid for by appellant, and receives $57 per month from war insurance. She lived in an apartment completely furnished which had been their home since the marriage. The appellant drew a salary of $50,000 from the Williams Oil-O-Matic Heating Corporation some years ago. In 1930 this was cut down to $24,000. In 1932 he resigned his position due to ill health and had drawn no salary since that time. Appellee introduced in evidence a trust agreement between appellant and the American State Bank, trustee, together with a schedule of bonds and stocks, deposited with the bank finder said' agreement, which were originally worth approximately $205,000. It was admitted that appellant owned 160,000 shares of Williams Oil-O-Matic Heating Corporation stock as well as other stocks and bonds. An analysis of the assets and liabilities of appellant as testified to by Gilbert B. Geiger, a certified public accountant, indicates that the net worth of appellant was not to exceed $50,000. This witness also testified that the value of the bonds and stocks listed under the trust agreement had depreciated from the face value of $205,000 down to $127,000. The main provisions of the decree so far as they affect this controversy provide:

Par. B. That the appellant is to pay the sundry merchants for debts contracted by the appellee for all purchases made prior to February 13, 1931, and that the same were due and payable by him at the time of the filing of the bill of complaint.

Par. D. That appellant pay the appellee in addition to other items provided for, $350 per month as long as she has the free use of the apartment now occupied by her in the Lafayette Apartment Building together with the payment of proper upkeep thereof and of the incidental expenses of said apartment, and that in the event she should voluntarily move or be compelled to move out of said apartment, then the appellant should pay appellee the additional sum of $75 per month.

Par. E. That the appellee is entitled to and shall be permitted to retain all household goods and effects, free from hindrance or claim thereto on the appellant’s part.

Par. F. That the appellee be paid the balance due her computed at the rate of $350 per month from the date of the filing of the bill to the entry of the decree, less the monthly payments made to her hy appellant, and that the amount be paid her in a lump sum in lieu of temporary alimony, consideration of which was- reserved by the court until final hearing.

Par. Gr. That the corpus of the trust which the appellant established in the American State Bank shall be held intact as security for the prompt payment by the appellant of the several amounts herein decreed to be paid by him.

Par. H. That as long as appellee occupies the apartment, the appellant was chargeable with the expense of reasonable repairs, upkeep and decoration of said apartment.

Par. I. That in addition to the other payments, defendant pay the appellee $3,600 for reasonable solicitors’ fees.

It is apparent that appellant does not seriously question the correctness of the decree in awarding separate maintenance to appellee but challenges all of the provisions which provide for the payment of money to the appellee, and that the decree should be reversed because of the failure of the court to sustain each of the exceptions to the master’s report.

It is first contended that the allowance of $350 per month as permanent alimony is grossly excessive and not warranted under the evidence in the record. It is true that shortly after the marriage appellee had been given almost every luxury and extravagance that money could afford. She had the benefit of a monthly deposit of $2,000 in the bank for personal and general expenses. Her husband for a number of years and down to the date of the separation drew a salary of $50,000 per year. Appellant and appellee had traveled extensively and always stopped at the most expensive hotels; appellant was the owner of 160,000 shares of stock in the Williams Oil-O-Matic Heating Corporation besides many other investments, but the depression, coming in 1930, had changed his financial standing. His salary had been reduced to $2,000 per month and his investments had suffered heavy losses. However he urges that he has been earning no salary since 1932 and that his entire net assets do not now exceed $50,000 and therefore the allowance of $350 per month in the decree is excessive. Appellant’s own testimony shows however that he and his father are the owners of a controlling interest in the Williams Oil-O-Matic Heating Corporation; that in 1932, he voluntarily resigned in order to regain his health; that he traveled to Hot Springs and other similar places with a special nurse and received treatment from the best doctors in the pursuit of health; that at the time of the hearing he had partially recovered his former health but had been able to assume only part of his regular duties and that he was still under the care of a doctor. The testimony is not convincing that he is out of employment. His assets have clearly been diminished in value but the plain inference from the evidence is that at any time his health will permit he can reassume his position with the Heating Corporation controlled by himself and his father at a handsome salary. He was responsible for furnishing appellee with a most expensive living, and with the opportunity afforded under the law to make a showing at any time as to changed conditions that would warrant a modification of the decree, we do not feel that the order awarding permanent alimony of $350 per month is excessive. Objection is further made to the provision of the decree which allowed temporary alimony in a lump sum at the rate of $350 per month from the date of the filing of the bill to the date of the decree less all monthly payments made by appellant during that period. In our judgment this provision of the decree partakes too much of the character of allowing alimony in gross, which cannot be done in separate maintenance cases. Cox v. Cox, 192 Ill. App. 286. While in the order of reference to the master in chancery, the court reserved the question of temporary alimony for further consideration, and to be provided for upon final hearing, it appears clear that upon the first application before Judge Barry he refused to enter an order awarding temporary alimony pendente lite because the husband was making provision for the wife monthly, sufficient to take care of her needs until such time as a hearing on the merits of the case could be had.

It is further urged that the allowance to complainant of $3,600 for reasonable solicitors’ fees was grossly excessive and not warranted by the record in this case. In fixing the reasonable amount of solicitors ’’ fees the proper inquiry is as to what is customary for such legal services where contracts have been made with persons competent to contract. Amberson v. Amberson, 349 Ill. 249. The courts have held that the fee to be allowed in separate maintenance cases should be limited to preparing and trying the maintenance suit proper. McAdams v. McAdams, 267 Ill. App. 124. While the zeal in behalf of their client and the care given by the solicitors for appellee are .commendable, the award of $3,600 for her reasonable solicitors’ fees cannot be justified by the record in this case where no defense was interposed to the awarding of separate maintenance to appellee and we believe that an allowance of $2,500 for such solicitors’ fees would be ample and reasonable.

Appellant further insists that the court erred in providing that the corpus of the trust fund established in the American State Bank should be held intact as security for the prompt payment by appellant of the several amounts decreed to be paid by him, relying upon a well established principle of law in divorce cases that a court of equity has no power to make a decree for alimony, a lien on personal property. Griswold v. Griswold, 111 Ill. App. 269; Peck v. Peck, 214 Ill. App. 41. However the circumstances of this case warrant the court in resorting to sequestration as a remedy to enforce obedience to a decree, and we do not believe any substantial error was committed in such provision of this decree. We do not deem the objections to the provisions of the decree requiring appellant to pay debts contracted by appellee for merchandise prior to February 13, 1931, or for the upkeep and necessary repairs of the apartment in which appellee lived, or for the use of the household effects to be any abuse of the discretion or beyond the powers of a court of chancery.

After the report of the master in chancery was filed and before the argument of the exceptions thereto, appellant filed a petition to offer evidence as to the depreciation of assets. The court ruled that he would permit proof as to value of the bonds on deposit with the American State Bank but refused to reopen the case for proof on the other items prayed for in the petition. The application was made about a year after the closing of proofs before the master and we do not think it was any abuse of discretion on the part of the court to deny the petition. Neither was it error for the court to permit the filing of the supplemental bill which for the first time developed the information concerning the trust fund in the American State Bank belonging to and under the control of appellant.

The testimony is discussed by counsel for both parties in great detail and we have not attempted to discuss all of the questions raised. We are satisfied that the decree entered by the chancellor based upon the testimony taken before the master is equitable and fair except as to the allowance of the temporary alimony prior to the entry of the decree and the amount of the complainant’s reasonable solicitors’ fees. It is therefore the judgment of this court that the decree of the circuit court of McLean county be modified to conform to the views herein expressed and that in all other respects it be affirmed.

Affirmed in part and reversed in part with instructions to the circuit court to enter anew decree containing the modifications herein set forth.

Affirmed in fart qnd reversed in fart with instructions,


source: Caselaw Access Project

author: Mr. Justice Davis

license: Public Domain

text:
    H. C. Freitag, Appellant, v. Daniel R. Buck et al., Appellees.
    Gen. No. 8,828.
    Opinion filed January 14, 1935.
    Rehearing denied April 2, 1935.

      DeWitt S. Crow, of Springfield, for appellant.
    Frank L. Trutter, Lyle K. Wheadon and Oscar J. Putting, all of Springfield, for appellees.
   Mr. Justice Davis

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Sangamon county in favor of appellee on a bill to foreclose a mortgage and to set aside a release of the same which is alleged to be fraudulent.

Appellees, Daniel B. Buck and Lela E. Buck, being indebted to John S. Schnepp in the sum of $5,000, executed and delivered their two promissory notes to him, each for the sum of $2,500, with interest notes attached and dated June 4,1923, both principal and interest payable at the office of John S. Schnepp, due in five years, and secured the payment of the same by two mortgages, in which John S. Schnepp was mortgagee, each conveying the premises involved in this proceeding, one of which mortgages was filed for record on June 7, 1923, and recorded in Volume 293 of Mortgages, page 294, and the other of which was filed for record on June 28, 1923, and recorded in Volume 293 of Mortgages, page 301; in the recorder’s office of Sangamon county.

On June 26,1923, John S. Schnepp sold and assigned the mortgage which was recorded in Volume 293 of Mortgages, at page 294, together with a principal note of $2,500 with interest notes attached, to H. C. Freitag, appellant, for a consideration of $2,500. The notes were indorsed and delivered to appellant and a separate written assignment was executed by Schnepp of the mortgage which was not filed for record by appellant until April 26, 1932. Appellant also received from Schnepp insurance policies upon the mortgaged premises and an abstract of title, but did not receive the mortgage that had been assigned to him.

The other $2,500 note with the mortgage securing the same was assigned to persons other than those who are parties hereto, and is not involved in this proceeding. Both of these mortgages were released by John S. Schnepp on the margin of the record of said mortgages in the recorder’s office of Sangamon county on July 17, 1930. On September 24, 1923, appellees, Daniel R. Buck and Lela E. Buck, conveyed the premises involved in this proceeding to George A. Baker, subject to an incumbrance of $5,000, and during the time that he owned the premises Baker paid to Schnepp the sum of $300 on the same. On March 19, 1925, George A. Baker and wife conveyed said premises to Everett J. Fleming and Margaret Fleming, subject to a mortgage indebtedness of $4,700. Interest on said amount together with $700 of the principal was paid by them to John S. Schnepp during the time they were the owners of the property. They sold and conveyed the premises to Boy L. Poland and Alice M. Poland on June 14, 1927, subject to two mortgages upon which there was a balance due of $4,000, together with the interest from June 4, 1927, which, by the terms of said deed, the grantees assumed and agreed to pay. Poland and his wife paid the interest on said indebtedness and also most of the principal to John S. Schnepp, and on June 5, 1930, there was a balance due of $552.31, principal and interest, when they applied to appellee, the German-American Savings and Loan Association, for a loan of $3,000. Upon making the loan to ‘Poland and his wife, the association issued three checks, one for $143.50, being for the amount due the association for accrued interest, premiums and other expenses in connection with the loan; one for $552.31, the balance due on the mortgage indebtedness, principal and interest; and one for $2,304.17, being the amount that was due to Poland and his wife out of the $3,000 they had borrowed. The check for $552.31 for balance due on the mortgage indebtedness and the one for $143.50 were both made payable to Boy L. Poland, and by him indorsed and delivered to the association.

This loan was evidenced by a note for $3,000, executed by Boy L. Poland and Alice M. Poland and secured by mortgage on the property in question. Marie Herman, secretary of the association, conducted the negotiations with Boy Poland and his wife Alice, in connection with this loan, and at this time the two mortgages were still unsatisfied of record and standing in the name of John S. Schnepp, and the check for $552.31, the balance due, was to be given to Schnepp upon the release of the mortgages. When the check was handed to Mr. Schnepp by Marie Herman he said he would go over and release the mortgages of record, which he finally did on July 17,1930. At the time payments were made on the principal and interest by the various parties and at the time the $3,000 loan was negotiated the record title to the mortgages in question was in the name of John S. Schnepp, and it appears from the evidence that none of the persons dealing with Schnepp had any knowledge that appellant was the assignee of the notes and mortgage in question. John S. Schnepp at the time the $3,000 loan was made by the German-American Saving's and Loan Association was a director of the association and had been president for one or two years and acted as attorney at times, but was not its president at the time the $3,000 loan was made, and he did not act as attorney in the making of the loan, nor pass upon the title for the association.

It appears that John S. Schnepp had been a resident of Springfield for many years. He was an attorney at law and did quite an extensive business in making loans and selling notes, and was also in the insurance business. He was at one time the mayor of the city of Springfield, and had been a member of the board of supervisors of Sangamon county and president of the German-American Savings and Loan Association, appellee, and was a director of said association, and he had the confidence of all of the parties concerned in this litigation and so far as the record discloses no one questioned his sincerity and honesty. He disappeared from Springfield about the month of January, 1932.

The cause was referred to Edward Free, special master in chancery, to take the evidence and report the same together with his conclusions. He took the proofs of the respective parties and made a report of his findings; objections were filed by appellant to the findings which were overruled by the master, and by agreement of the parties to said cause the court ordered that said objections filed to the report of the master stand as exceptions before the court. Upon a hearing by the court upon the exceptions to the report and findings of the master in chancery the same were overruled, and the bill of complaint was dismissed for want of equity by a decree entered in said cause on December 29, 1933.

In dismissing the bill for want of equity the court made certain findings of fact in support of the decree. It is not necessary when a bill is dismissed for want of equity to recite findings of fact in the decree, and such findings of fact have no place in a decree dismissing a bill for want of equity. The rule that the party in whose favor a decree is entered must preserve the evidence, and that such decree must be reversed if not sustained by the evidence in the record applies only in cases where affirmative relief is obtained. But a decree dismissing a bill needs no evidence to support it because it is supported by the absence of any evidence, since that is the proper decree in case there is no evidence or if the evidence is insufficient to authorize the relief asked for. A complainant aggrieved by such a decree must show that the evidence entitled him to the relief for which he prayed, and to do this must preserve the whole of the evidence. First Nat. Bank of Chicago v. Baker, 161 Ill. 281; Kelly v. Funkhouser, 171 Ill. 205; State Bank of Chicago v. Christensen, 195 Ill. App. 496, 499; Hyde Park Investment Co. v. Hyde Park State Bank, 257 Ill. App. 539, 541.

We will not consider the objections of appellant to the findings in the decree dismissing the bill for want of equity but will determine as to whether the evidence is sufficient to entitle appellant to the relief for which he prayed.

The general rule in Illinois is that a mortgage is not a negotiable instrument, but is a mere chose in action and an assignee to be protected against payments by the mortgagor must either, have the assignment recorded or the mortgagor must have notice of the rights of the assignee. Buehler v. McCormick, 169 Ill. 269; McAuliffe v. Reuter, 166 Ill. 491; Towner v. McClelland, 110 Ill. 542.

The evidence fails to disclose that any of the appellees had notice of the assignment of the mortgage and such assignment was not filed for record until long after the notes secured by said mortgage were paid and said mortgage released of record by John S. Schnepp, the mortgagee, and under this general rule appellees are entitled to any defense against appellant, the assignee of the mortgage, which they might have interposed against the original mortgagee.

Conceding this to be true appellant, however, contends that this rule is limited to cases where the property is still owned by the mortgagor and that as to the purchasers of mortgaged premises, who take subject to the mortgage and assume and agree to pay it, there is no duty on behalf of the assignee of the mortgage to give notice, but such purchasers of the premises must see to it that he pays the debt to the legal holder of the note. In support of this contention is cited the case of Schultz v. Sroelowitz, 191 Ill. 249.

The evidence fails to disclose that either George A. Baker, Everett J. Fleming or Margaret Fleming assumed and agreed to pay the mortgage indebtedness on the premises when they became the purchasers of the same. While it is true that the deed from Everett J. Fleming and his wife, Margaret, to Boy L. Poland and wife contained a provision that the deed was made subject to two certain mortgages then on said premises, on which was a balance due of $4,000 and interest from June 4, 1927, which grantees assumed and agreed to pay, yet the evidence discloses that the same was inserted in the deed by John S. Schnepp when he prepared the same. Neither the grantors nor grantees in said deed ever had any conversation concerning the assumption of said indebtedness or any agreement that said provision should be inserted in the deed, and grantees never agreed to become personally liable for any indebtedness then on the property, and neither grantors nor grantees knew that the language was in the deed when the same was executed and delivered.

An agreement on the part of a grantee to pay incumbrances on property must be based on sufficient consideration and the assumption clause of the deed be accepted and agreed to by the grantee. The law requires something more than the mere insertion by the grantor of a clause in the deed that the grantee assumes an incumbrance. The assumption of such incumbrance is by way of contract or agreement on the part of grantee, and the grantee’s assent to such contract must in some manner appear. Unless it is shown that the g'rantee in a deed has some reason to suppose that the deed to him contained a personal contract on his part to pay a mortgage or other lien on the property transferred, and that he assented thereto, he cannot be held as a matter of law to have assumed such obligation. Ludlum v. Pinckard, 304 Ill. 449, 452; Thompson v. Dearborn, 107 Ill. 87.

At the time appellant purchased the $2,500 note and mortgage in question he had been acquainted with John S. Schnepp for 20 years and had business dealings with him before he bought the note, having bought other notes and mortgages from him. He knew that Schnepp did a great deal of business in making loans and selling notes. He had a talk with Schnepp who said he had a note for sale. Appellant did not know the makers of the note and made no effort to find out who they were and did not see the property, and does not remember that Schnepp told him where the property was located, but according to the papers he knew about where it was. At that time he did not see any mortgage and never got possession of the same, and testifies that he thought the assignment was the mortgage. He did not know whose name the mortgage was in on the record. Mr. Schnepp told him not to record the paper he gave him; said that it was not necessary and that he, Schnepp, would take care of that. As the coupon notes matured appellant would go to the office of Mr. Schnepp and receive the money due and surrender the note, and after the principal note matured he presented the note to Schnepp and received his interest and the same was indorsed on the back of the note, the last interest indorsed being of date December 4, 1931. Appellant testified that he relied upon Mr. Schnepp in matters pertaining to the loan and relied upon him for the payment of the interest, and that he had purchased other notes from him and trusted him as to the character of the note he purchased, as to who made it, the security and examination of title. He testified that he did not at any time authorize or direct John S. Schnepp to satisfy or release this mortgage. He took no steps to collect the principal of the note until this suit was commenced in April, 1932, about four years after maturity of the same, and the assignment of the mortgage was not recorded until April 26, 1932. He testified that John S. Schnepp indorsed the note because he had to, and he supposed he meant to guarantee it; that he relied upon his honesty and business experience, and left the whole matter to him; that he was not concerned at all whether Schnepp collected any interest or not on the note, he would be paid just the same; that he was not concerned about the makers of the notes or any one else liable on the notes, whether they did or did not pay; that if John Schnepp was here and paid him the interest, he would not mind if that loan ran along for 20 or 30 years.

Each time the property was conveyed the parties went to Schnepp and he drew up the conveyances and did the business for them. Whenever any of the parties made payments they were made to Schnepp. Schnepp received the payments and did not notify them he was not the owner of the notes in question. When the mortgage was executed by Poland and wife to the German-American Savings and Loan Association Schnepp informed them as to what was due on the incumbrance on the premises and gave them the abstract of title to the property. The greater part of the incumbrance on the premises was paid after the notes fell due. It is true that none of the parties who made payments on any of the indebtedness ever demanded the notes of Schnepp, and when the balance due was finally paid all that was required was the releases of the two mortgages of record. All the interested parties had absolute confidence in the honesty of John S. Schnepp, and from the time John S. Schnepp assigned the $2,500 note and mortgage to appellant down to the taking of the mortgage by appellee, the German-American Savings and Loan Association, they depended entirely upon the honesty of Schnepp. They relied upon the record title in the recorder’s office as to the ownership of the property and the records showing that John S. Schnepp was the holder and owner of the two mortgages and the notes secured thereby, it was taken for granted that he bad never sold or assigned the same.

In the case of Schultz v. Sroelowitz, supra, it was held under the facts in that case that the rule requiring the assignee of a mortgage securing notes indorsed in blank to give actual or constructive notice, in order to protect himself against payments to the mortgagee, does not extend to subsequent purchasers of the property who assume and agree to pay the incumbrance; and under the facts in the case of Ludlum v. Pinckard, supra, it was held that a grantee in a deed containing a provision that the grantee assumes and agrees to pay the mortgage indebtedness against the premises, by making payments on the mortgage indebtedness, assented to the assumption clause and negatived any repudiation of said clause in the deed and such payments constituted evidence of the acceptance of the clause, even though grantee did not know such clause was inserted in the deed, but, in view of the evidence in this case, we are of the opinion that these cases are not controlling.

This litigation is the outgrowth of the fraudulent conduct of Schnepp which must result in loss to one or more of the parties concerned, and it is often a difficult matter in such cases to determine upon whom the loss should fall.

Appellant by trusting in Schnepp and permitting him to act for him in the collection of the interest and relying upon him as to the safety of the loan and by not placing his assignment of the mortgage on record on the advice of Schnepp and his statement, that he would take care of that, and from failing to get from Schnepp the original mortgage, and by allowing him to conduct all the business in relation to the loan, put it in the power of John S. Schnepp to perpetrate the fraud which resulted in loss. The only negligence chargeable to any of the appellees is the fact that they made payment of money to Schnepp on the indebtedness without requiring him to surrender the note. Four thousand dollars were paid on the principal of the note after it became due. Even after the maturity of the principal note appellant received payments of interest on the note, and never looked to anyone but Sclmepp for his money for the reason that he apparently relied upon Schnepp for the payment of the same and never took any steps to assert his claim until after the full payment to Schnepp of this indebtedness and the releasing of the mortgages of record, nor until after Schnepp disappeared from Springfield.

It was the duty of appellant, if he wished to protect himself as against subsequent purchasers and incumbrances without notice, to have recorded his assignment of the mortgage, but this he failed to do, and now long after the maturity of the note secured thereby and after the mortgage was released of record by the holder of the record title to the same, he seeks to charge appellees with knowledge of the assignment because, as he charges, they assumed and agreed to pay the incumbrance on the premises when they purchased the same, when the facts are, as disclosed by the evidence, that the deed to Poland and wife was the only one that contained an assumption of indebtedness and this clause was inserted without the knowledge of either the grantors or grantees in said deed by Schnepp when he drafted the same, but that because of the fact that payments were made by Poland and wife to Schnepp on this indebtedness that they thereby assented to such assumption in said deed and were bound to see to it that they paid appellant as the legal holder of the note secured, when he by his own trust in Schnepp put it in the power of Schnepp to fraudulently receive and appropriate to his own use the payments made to him upon the principal of said note.

We are of opinion that appellant has failed to show by the evidence that he is entitled to the relief for which he prayed. It would be inequitable and unjust to deny appellees, Boy L. Poland and Alice M. Poland and the German-American Savings and Loan Association, the right to be credited with the payments of principal and interest made by Boy L. Poland to Schnepp, even though they failed to require John S. Schnepp to surrender the note and mortgage when the same was finally paid.

The decree of the circuit court of Sangamon county is affirmed.

Affirmed.


text:
    Laclede Steel Company et al., Appellees, v. The Hecker-Moon Company et al., Appellants.
    Gen. No. 8,838.

      Opinion filed January 14, 1935.
    Rehearing denied April 2, 1935.
    Harold W. Rudolph and Doyle, Sampson & Gtepin, of Springfield, for appellants; Evan Howell, of Springfield, of counsel.
    Brown, Hay & Stephens, Coy N. Overaker, Hope & Hope, A. M. Fitzgerald, Harry C. Moore and Barber & Barber, all of Springfield, for appellees.
   Mr. Justice Davis

delivered the opinion of the court.

Appellees filed their bill of complaint in the circuit court of Sangamon county, on October 25, 1933, alleging that on or about September 29, 1932, the City of Springfield, organized and existing under the general Cities and Villages Act, Cahill’s St. ch. 24, ti 1 et seq., entered into a written contract with the Hecker-Moon Company, an Ohio corporation doing business in Illinois, whereby said corporation agreed to construct and build for said city, in accordance with plans and specifications therefor and also in accordance with the price specified in the bid of said corporation, a bridge known as Fox Road Bridge No. 1, and to furnish and pay for all labor and material used in the performance of said contract; and to secure such performance by said Hecker-Moon Company the Seaboard Surety Company, a New York corporation doing business in Illinois, joined with said Hecker-Moon Company in executing a written bond in the penal sum of $215,000 in favor of said city, for its use and for the use and benefit of all persons or corporations who should furnish labor or materials to the said Hecker-Moon Company for use in the performance of said contract; and in and by said bond jointly and severally agreed to pay in full all persons or corporations who should furnish the said Hecker-Moon Company labor or materials under any agreement, sale or employment for use in the performance of said contract for the construction of said bridge; all as more fully appears from a true copy of said contract, bid, specifications and bond filed herewith, marked Exhibit “A,” and by reference made a part hereof.

That in order to perform said contract for the construction of said bridge the Hecker-Moon Company ordered from the Laclede Steel Company, one of the complainants, and the latter furnished and delivered to said Hecker-Moon Company for use in such construction, a large amount of steel and other building materials to be paid for at the prices shown by itemized statement thereof marked Exhibit “B,” hereto attached as a part hereof, and that the net amount therefor is the sum of $8,150.22, together with interest and attorney’s fees.

Then follow 13 separate paragraphs, in each of which is stated the name of one of the remaining complainants and containing similar allegations together with an allegation of the net amount due such complainant. The bill further alleges that said claims arise out of the same transaction relating to the furnishing of labor or materials to said Hecker-Moon Company for use in the performance of said contract for the construction and completion of said bridge, and involve the same facts and questions of law; that the liability of the defendant, the Seaboard Surety Company, to the complainants and each of them arises out of and by virtue of the same written bond and any alleged defense by said defendant to liability on said bond to the complainants or any of them would be the same as to each of said complainants, and involve the same facts and questions of law; that the complainants have a community of rights and interests in the questions at issue and the remedies available therefor, and unless all of said claims of the complainants are determined in this proceeding the complainants will be obligated to institute and prosecute a multiplicity of suits at a great expense to themselves and inconvenience to the court.

That the Hecker-Moon Company and said Seaboard Surety Company have wholly failed to pay said sums owing to complainants respectively, or any part thereof ; that the Hecker-Moon Company, after performing approximately two-thirds of the work of completing said bridge, abandoned the work thereon, but the cost of completing said bridge and mailing good all defaults of said contractor on its obligations incurred in the performance of said contract, including the payment of the several sums so owing to these complainants, is much less than the amount of said bond.

Complainants named the Hecker-Moon Company and the Seaboard Surety Company as defendants, and prayed for an accounting and that the defendants be decreed to pay severally to the complainants whatever sums appeared to be due the complainants respectively with costs.

The bond referred to and a copy of which was attached to the bill of complaint was executed by the Hecker-Moon Company as principal and Seaboard Surety Company as surety acknowledging themselves to be held and firmly bound unto the City of Springfield, Illinois, a municipal corporation, in the penal sum of $215,000, for the use and benefit of all persons or corporations who furnish labor or material to the Hecker-Moon Company for use in the performance of a contract entered into between said Hecker-Moon Company and said city providing for the construction of certain bridges and their appurtenances known as Fox Road Bridges, Nos. 1 and 2.

° The condition of the obligation was such that,

If said principal shall fully complete and satisfy and perform all of its obligations under said contract and all extensions, alterations and variations of said contract ;

And if said principal shall satisfy all valid claims and demands for injuries or damages caused in the performance of said contract;

And if said principal shall pay in full all persons and corporations who have furnished said principal labor or materials under any nature of agreement, sale or employment for use in performance of said contract ;

And if said principal shall fully indemnify and protect said obligee against all liability or expense suffered or incurred by said obligee by reason of any claim or claims of patent infringement;

And if said principal shall indemnify and protect said obligee from all damage or expense whatsoever which said obligee may suffer by reason of the failure of said principal to fully perform all its obligations under said contract ;

And if said principal shall fully reimburse and repay said obligee all outlay and expense whatsoever which said obligee may incur in mating good any default of said principal;

And if said principal shall reimburse and repay said obligee all outlay and expense, including attorney’s fees, necessarily paid or incurred by obligee in enforcing performance of any of the obligations of said principal under said contract, or under this bond; then this obligation shall be null and void, otherwise, it shall remain in full force and effect.

No alterations which may be made in the terms of the contract or in the work to be done under it, nor the giving by the obligee of any extension of time for the performance of the contract, nor any other forbearance on the part of either the obligee or the principal to the other, nor any other action of the obligee, shall be held to have released said surety from its obligations hereunder, except to the extent that the principal itself is released. Notice to said surety of the acceptance of this bond by the obligee and notice of any such alteration, extension or forbearance and notice of default of the principal is hereby waived. The premium charged by said surety for this bond is included in the contract price and in that manner paid by said obligee, and the rule that guaranties shall be construed in favor of the surety shall not apply to this instrument.

The rights hereunder of persons or corporations furnishing labor or material to said principal for use in performance of said contract may be enforced by bill in equity, but all such rights shall be subordinate to the prior rights of said obligee to full indemnity and reimbursement as above provided.

The defendants were duly served with summons and an order was entered granting them leave to answer by November 20, 1933. Before a hearing on a demurrer by defendants to the bill of complaint six corporations and an individual filed petitions and were permitted to intervene and become parties complainants to said bill of complaint.

The grounds of the demurrer as set forth in the amended demurrer of the defendants, so far as material to the questions raised on this appeal, are that the bill shows upon its face that a court of equity has no jurisdiction thereof and that it is bad for multifariousness, and that from the allegations of the bill it fails to appear that complainants filed any verified notice of claim with the City of Springfield, or any bureau or department thereof, or in any manner complied with the provisions of an Act of the General Assembly of the State of Illinois, entitled “An Act in relation to bonds of contractors entering into contracts for public construction,” approved June 20, 1931. Cahill’s St. 1933, ch. 127, W 71, 72.

The court overruled the demurrer and defendants excepted to the action of the court. The court thereupon ruled defendants to answer the bill of complaint. Defendants refused to answer further and elected to abide by their demurrer to said bill, and thereupon it was ordered that the bill be' taken as confessed and a decree pro confesso was rendered by the court ordering and directing that the complainants respectively recover from the defendants the amounts due them respectively with interest from date of the decree but that each of said complainants have but one satisfaction of the amount of such decree in favor of such complainant.

Appellants jointly and severally excepted to said decree and prayed an appeal, and it was ordered by the court upon an appeal bond being filed in the sum of $35,000 it operate as a supersedeas; a joint and several notice of appeal was filed by appellants, and the bond of the Seaboard Surety Company in the penal sum of $35,000 was filed and approved, and said appeal operated as a supersedeas as to said defendant.

Appellants are here seeking a reversal of said decree, and the errors pointed out and argued by them are that the bill is bad because it is multifarious and that it also fails to show that the complainants complied with the statute relating to bonds of public contractors.

In determining the question as to whether a demurrer should be sustained to a bill in chancery on the ground that the bill is multifarious, our Supreme Court said: “It is impossible to lay down any rule universally applicable and controlling on this question or to say with certainty what constitutes multifariousness as an abstract proposition, under the authorities; that there is no settled and inflexible rule; that the modern tendency of the courts is to relax the rigid rules of pleading and to hold that a bill is not multifarious where causes set forth in the bill may more conveniently be tried in a single suit, where it will avoid a multiplicity of suits, and where the relief sought in each cause is of the same general character and no unreasonable hardship will be caused the parties against whom the relief is aslced.” Abbott v. Loving, 303 Ill. 154, 162.

A court of equity will, in a single suit, take cognizance of a controversy, determine the rights of all parties, and grant the relief requisite to meet the ends of justice, in order to prevent a multiplicity of suits, where a number of persons have separate and individual claims and rights of action against the same party, but all arise from some common cause, are governed by the same legal rule, and involve similar facts, and the whole matter may be settled in one action, brought by all these persons uniting as co-complainants. Fletcher’s Equity Pleading and Practice, sec. 109.

“A bill is not necessarily rendered multifarious by reason of the fact that there may be united in it several causes of action. If all of the different causes of action united in the bill grow out of the same transaction, and if all the defendants are interested in the same rights and the relief against each is of the same general character, the bill may be maintained. No bill is multifarious that presents a common point of litigation, the decision of which will affect the whole subject matter and1 will settle the rights of all the parties to the suit.” Abbott v. Loving, supra; Regan v. Grady, 343 Ill. 423.

We are unable to see that any unreasonable hardship will be caused the defendants, and none is suggested, and as the causes set forth in the hill may inore conveniently be tried in a single suit and thus .avoid a multiplicity of suits, and the relief sought being of the same general character and varying only as to the amount due to each individual complainant, we are of opinion that the bill is not multifarious and the court did not err in so holding.

It is further claimed by appellants that unless restricted by the terms of the statute the words “political subdivision of the state” mean and include cities and other municipal corporations thereof, and that this is the universal rule as conclusively shown by the authorities.

Thus in 43 Corpus Juris, 70: Art. “Municipal Corporations,” sec. 5, it is said that: “In their public and governmental aspect municipal corporations are referred to as political subdivisions of the state.” In Ford v. Delta & Pine Land Co., 164 U. S. 662, 672, 41 L. Ed. 590, it is said that: “A city is a municipal corporation, a political subdivision of the state, charged with certain specified duties of government within its territorial limits, and for the full discharge of those duties it is authorized to levy taxes.” In Jefferson City Gas-Light Co. v. Clark, 95 U. S. 644, 654, 24 L. Ed. 521, it is said: “A city is only a political subdivision of the state made for the convenient administration of the government.”

They contend that the City of Springfield is a political subdivision of the State within the meaning of this act, and appellees not having alleged in the bill a compliance with the provisions of the act, on the part of such appellees, that the court should have sustained the demurrer to the bill because it failed to state a cause of action.

Appellees admit that no attempt was made to comply with the provision of the act, and that the legislature did not intend to make the act applicable to cities or to include them within the words “political subdivision” of the State.

In support of such position appellees call attention to the language in sec. 2 of the act, Cahill’s St. ch. 127, If 72: “Provided, however, that any person having a claim for labor, and material as aforesaid shall have no such right of action unless he shall have filed a verified notice of said claim with the officer, board, bureau or department awarding the contract, within sixty days, etc.,” and say that there is no officer, board, etc., having the power to award contracts except the city council, and that if the legislature had intended to include a city it is only reasonable to assume that it would have so worded the place of filing the notice as to clearly specify a place or person in the city government with whom it would be possible to file the notice.

That a city is not a “political subdivision” of the State; that a “political subdivision” of the State must be a unit which together with all other units of the same kind will constitute the whole State; that “subdivide” means to divide into smaller parts the same being or subject matter, citing the case of Kansas City v. Neal, 122 Mo. 232, 26 S. W. 695; that the State of Illinois has made certain divisions of the State into smaller parts, such as counties and counties into townships, all of which if put together will constitute geographically the whole-State.

Appellees further say that under Illinois decisions only those governmental units which have been imposed upon a territory by the constitution, or legislature without the consent of the inhabitants should be deemed political subdivisions of the State, and cite the cases of People v. Martin, 178 Ill. 611; County of Cook v. City of Chicago, 311 Ill. 234.

We are of opinion that a city organized and existing under the general Cities and Villages Act is a political subdivision of the State within the meaning of this act, it being one of the divisions formed for the exercise of political power within the State, and authorized under its charter to make contracts for public works within its jurisdiction, and to hold otherwise would be to exclude from the operation of this statute many governmental bodies within the State which are so authorized to contract. It could not have been the intention of the legislature, by the use of the words “political subdivision of the State,” to limit the application of the act to counties and townships, when there are many cities in the State that are authorized to and do enter into contracts for public works involving the expenditure of large sums of money to which there is the same or greater reason and necessity for the application of the act as there is to counties and towns.

Appellees also say that even though the terms of the act are applicable to a city, yet rights under the bond herein involved may be enforced without regard to the statute; that the act by its terms demonstrates that the so-called right of action therein mentioned and the restrictions and limitations thereon as to the 60 days’ notice, etc., are applicable solely to a true statutory bond complying strictly with the terms of the act; that the so-called statutory right of action, as such, arises only “when bond shall be executed as provided in this act”; that the legislature did not in any way purport to deal with, limit, abridge, restrict, or impose conditions precedent to the right of action on a bond that was not executed in compliance with or as provided for in this act; that without the existence or aid of the bond of contractors’ act the bond involved herein was lawfully taken; that appellees as third party beneficiaries had the right to enforce the same and said act should not be so construed as to abrogate or impair that right since such construction is not absolutely required; citing Alexander Lumber Co. v. Aetna Accident & Liability Co., 296 Ill. 500, in which case the court in its opinion recognized the right of the Alexander Lumber Co. to sue, and said: “Having been made a beneficiary under the bond with the right to sue thereon there is privity of contract existing between it and the plaintiff in error.”

Appellees also say that the bond involved in this suit is an entirely different bond than the one contemplated in the act, and is not a statutory bond. The statute in speaking of the conditions of a statutory bond, says, it “shall be conditioned for the payment of material used in such work and for all labor performed in such work.5 ’ The condition of the bond in question is broader, and reads: “If said principal shall pay in full all persons and corporations who have furnished said principal labor or materials, under any nature of agreement, sale or employment, for use in the performance of said contract”; that this bond requires no proof that the material was actually used in and became a part of the job, but if the material was furnished the defendant, the Hecker-Moon Company, for use in the performance of the contract that is all that need be proven.

The statute provides that the statutory bond shall be conditioned for the "payment of material used in such work and for all labor performed in such work, whether by subcontractor or otherwise, while the instant bond is conditioned for the payment only of those “who have furnished said principal labor or material.” And the first part of the bond in question reads, that it is for “the use and benefit of all persons or corporations who furnish labor or material to said principal for use in the performance of the contract.” A statutory bond would be for the benefit of subcontractors and sub-subcontractors; but the instant bond by the language thereof is definitely limited to original contractors with the principal and clearly excludes subcontractors and more remote contractors who obviously would not be furnishing materials to the principal but to the subcontractor with whom he dealt.

The statute gives laborers and materialmen rights regardless of those of the political subdivision, while the instant bond subordinates the rights of the laborers and materialmen to those of the city.

The statute requires suit in the name of the political subdivision, while the bond provides that the laborers and materialmen may sue in equity which necessarily means they may sue in their own names.

That the bond in question is not a statutory bond, but must be treated as an ordinary contract voluntarily entered into by the principal and a compensated surety.

Appellants say they have no controversy with the point made by appellees to the effect that if there had been no statute relating to the bonds of public contractors, the bond herein involved might be enforced as a common law obligation. There is certainly nothing to prevent the giving of such a bond, and having been voluntarily entered into, and not being contrary to law, there would be nothing to prevent its enforcement. Such, moreover, are the cases cited and relied on by appellees but in every one of such cases bonds were given under a situation as to which there was no applicable statute. They contain no provisions contrary to law, and they were therefore enforceable according to the terms thereof.

Appellants further contend that the bond is a substantial compliance with the statute and that the statute does not provide that it shall contain certain provisions, and none other, but that it shall be conditioned for the payment of material used in such work, and for all labor performed in such work, whether by subcontractors or otherwise; that the provisions of the statute are regarded as being incorporated in the bond; that the application of the statute is not defeated by the fact that bonds contain provisions in excess of the requirement for the reason that the statute expressly contemplates the existence of such other conditions, the purpose of the statute being to afford adequate protection to subcontractors and also to provide for the protection of sureties; that the statute here involved covers the whole subject matter thereof and it provides a complete system of procedure. It applies to the making of all contracts for public work to be performed by the State or any “political subdivision” of the State, within the meaning of the statute, and this is clearly shown by the last proviso of section 2 of the act which directs that no action shall be brought on the bond provided for in said act until the expiration of 120 days after the performance of the last item of labor or the furnishing of the last item of materials “except in case where final settlement between the officer, board, bureau, or department of the municipal corporation and the contractor” shall have been made prior to the expiration of said period of 120 days, etc.

“Where a statute creates a new right or imposes a new duty or liability unknown to the common law, and at the same time gives a remedy for its enforcement, the remedy so prescribed is exclusive,” citing Lewis’ Sutherland on Statutory Construction (2nd Ed.), sec. 720.

From the allegation of the bill of complaint it is evident that appellees do not seek to recover on a statutory bond provided for under the act in relation to bonds of contractors entering into contracts for public construction.

The provisions of the bond upon which recovery is sought are in conflict with the provisions of that act. Under the act the statutory bond must provide for the payment of material used in such work and for all labor performed in such work whether by subcontractors or otherwise, while the bond in question is for the use of the city and the use and benefit of all persons or corporations who furnish labor or ■ material to the Hecker-Moon Company for use in the performance of said contract.

Under the provisions of the act laborers and materialmen’s rights are protected regardless of those of the political subdivision. The bond in question provides that the rights under said bond of persons or corporations furnishing labor or material to the Hecker-Moon Company for use in the performance of said contract may be enforced by bill in equity, but all such rights shall be subordinate to the prior rights of the city to full indemnity and reimbursement as provided in the bond.

A reading of the bond will disclose that it was entered into primarily for the benefit of the city. It not only guaranteed the complete performance of the contract to the satisfaction of the city and the payment of all claims and demands including attorney’s fees necessarily paid or incurred in enforcing performance of any of the obligations of the Hecker-Moon Company, but it also guaranteed to protect the city from all liability or expenses suffered or incurred by it by reason of any claim or claims of patent infringement and the protection of laborers and materialmen was a secondary consideration.

Appellants contend that when a statute creates a new right or imposes a new duty or liability unknown to the common law, and at the same time gives a remedy for its enforcement, the remedy so prescribed is exclusive.

That the statute here involved purports to cover the whole subject matter thereof and provides a complete system of procedure and applies to all contracts for public work to be performed by the State or any political subdivision thereof.

That because of such act the city was not authorized to accept any bond other than the one provided for under the act, and that the bond in question is therefore the statutory bond required and the remedy provided for in the act for its enforcement is exclusive and because appellees have not alleged in their bill a compliance with such statute that the bill fails to state a good cause of action.

It was not the intention of the legislature to put it in the power of a contractor for the performance of public works to enter into an obligation for the faithful performance of such contract that was other and different than that provided for in the act and when default is made and suit brought to enforce such obligation to say that the political subdivision had no authority to accept any obligation other than that provided for under the act and that therefore such obligation was a statutory obligation and because the terms of that act were not complied with in regard to the enforcement of the remedy therein provided that no action could be maintained for a recovery of damages for a breach of that obligation.

Appellants executed and delivered the bond in question chargeable with knowledge that its terms and conditions were not in keeping with the provisions of the act and are bound by the terms and conditions of the obligation so entered into by them and should not be permitted to plead in defense of this action that the same is a statutory bond and because the terms of the statute have not been complied with by appellees no recovery can be had on the bond. The circuit court of Sangamon county did not err in overruling the demurrer of appellants to the bill of complaint, and the judgment is therefore affirmed.

Affirmed.


author: Mr. Presiding Justice Edwards

text:
    City of Greenville, Appellant, v. John Nowlan, Appellee.
    Opinion filed March 4, 1935.
    Stanford S. Meter, City Attorney, for appellant.
    C. E. Davidson, of Greenville, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

This is a motion to dismiss an appeal from the county court of Bond county, seeking to reverse a judgment in favor of appellee, rendered in a prosecution brought by appellant, City of Greenville, to enforce the provisions of an ordinance prohibiting unmuzzled dogs from running at large under certain circumstances.

The grounds urged for dismissal are that the validity of the ordinance is involved, under section 2 of article 2 of the constitution, hence the Appellate Court has no jurisdiction of the appeal; also, that the Supreme Court is the only tribunal where a review of a cause involving the validity of a municipal ordinance can be had, and then only when there is a certificate of the trial judge that the public interests require such review, as provided by section 75 of the Civil Practice Act, Cahill’s St. ch. 110, Tf 203. It further asserts that no such certificate being a part of the record, the cause cannot be transferred to the Supreme Court. The motion also sets out the ordinance in haec verba.

As to the proposition that the authority to review a case wherein the validity of a municipal ordinance is involved is by the statute lodged exclusively in the Supreme Court, the law is contrary to the contention of appellee. In Village of Lake Zurich v. Deschauer, 310 Ill. 209, in a proceeding where the validity of a municipal ordinance was in question, and the appeal taken directly to the Supreme Court without a certificate of the trial judge that the public interests so required, the court, on page 210, in construing the provisions of the former Practice Act upon the subject, of which said section 75 of the Civil Practice Act is substantially a re-enactment, said: “Section 118 of chapter 110 of our statutes expressly limits the jurisdiction of this court to hear direct appeals from or writs of error to the circuit court where the validity of an ordinance is involved, to cases wherein the trial judge shall certify that in his opinion the public interests so require, or wherein the decision as to the validity of the ordinance requires a construction of the constitution. The record contains no such certificate of the trial judge, and requires no construction of the constitution in the decision of the case.” The court ordered the cause transferred to the Appellate Court.

It is evident that instead of the Supreme Court having exclusive jurisdiction of the review of causes which involve the validity of municipal ordinances, its authority in such regard is limited to the two instances thus enumerated, and in other situations the appeal is properly taken to the Appellate Court.

As to the other ground assigned, namely, that the validity of the ordinance is involved under section 2 of article 2 of the constitution, which section is, “no person shall be deprived of life, liberty or property without due process of law,” the motion does not set forth how or in what manner the ordinance contravenes such constitutional provision. We think it should assign some cause or reason for the contention, and that mere assertion in a pleading that such is the fact, is not sufficient, under the authority of Beach v. Peabody, 188 Ill. 75; People ex rel. Greer v. City of Chicago, 238 Ill. 146; Iles v. Heidenreich, 271 Ill. 480.

There is a further, and in our opinion, a fatal, omission in the motion. In order to give the Supreme Court jurisdiction of a direct appeal on the ground that the validity of an ordinance is involved, and where the record does not contain the certificate of the trial judge as provided by the statute, it is requisite that the question of the constitutionality of the ordinance be raised in the trial court. Darley v. Thompson, 299 Ill. 122; Cleveland, C., C. & St. L. Ry. Co. v. McGrath, 195 Ill. 104.

This court is not bound to go beyond the terms of the motion and inspect the record to determine whether such proposition was raised in the trial court. Scholfield v. Pope, 103 Ill. 138. The motion should, in itself, be complete, and show with certainty that a question requiring a construction of the constitution was presented at the trial.

Here the motion does not aver that any question was raised in the trial court, that the ordinance was obnoxious to the constitution. For aught that appears the proposition may be now urged for the first time. In our opinion the motion should have shown, upon its face, that the question of whether the ordinance was in contravention of the constitution was raised in the trial court.

For which reasons the motion to dismiss the appeal is denied. Appellee will file his brief and argument within 20 days hereof, and appellant its reply brief within five days after the filing of such brief and argument on the part of appellee.

Motion denied.


author: Mr. Justice Murphy

text:
    Emil Feder, Appellee, v. Perry Coal Company, Appellant.

      Opinion filed March 4, 1935.
    George W. Burton, of Chicago, and M. C. Young, for appellant.
    Preston K. Johnson, of Belleville, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

Appellee, herein referred to as the plaintiff, instituted an action in case against appellant, herein referred to as defendant, to recover damages to his poultry, livestock, crops, habitation and personal injuries to himself, alleged to have been caused by the gases, fumes and smoke coming on to plaintiff’s property from a burning slag pile located on the property of the defendant.

The evidence shows that plaintiff began occupying the lands described in the declaration in 1922 as a tenant farmer under a lease from year to year; that in 1931, he cultivated said lands in corn, oats, soy beans, sweet clover and alfalfa; that he raised and kept on said farm cattle, hogs, sheep and poultry.

The defendant operated a coal mine on land adjacent to the land occupied by the plaintiff and when the coal was hoisted from the mine to the surface, it was run over conveyors and workmen picked out the impurities, which were then put in a container and hauled in trucks a short distance from the mine and dumped onto defendant’s land. This refuse pile varied in depth from two to ten feet. It was composed of blue band, which is dirt or fire clay, rock, sulphur in small quantities and a small amount of slate with a trace of oil in it. On June 12, 1931, it became ignited by spontaneous combustion and burned intermittently until the latter part of November. When the fire was first discovered, defendant endeavored to extinguish it by stirring but without avail. Later, a two-inch pipe line was laid and water was poured onto it. This checked it for a time to such an extent that it was hardly noticeable but later burst forth again. Finally, defendant extinguished it by using teams and scrapers and spreading it thinner.

The declaration, filed in 1933, contains one count in which it is alleged that it was defendant’s duty to operate and manag*e his mine so as not to injure the plaintiff or his property which was located on said premises and that the defendant “however failed to perform such duty and on the contrary permitted and allowed a certain mass or quantity of slag and other refuse from said coal mine to become ignited on, to wit: June 12, 1931, and thereafter to burn and continue for a long space of time, to wit: three months, to burn and smoke, that by reason thereof gases were formed and given off from said material so burning which spread through the air and settled upon crops, grass and other vegetation upon said premises and thereby poisoned and rendered same noxious, ’ ’ and that by reason thereof his crops were damaged, his livestock and poultry were made sick and a part of them died and that he was made sick by inhaling of said gases and that his dwelling house was caused to be uninhabitable for days and hours by reason of the gases diffused therein.

The defendant filed the general issue and certain special pleas in which it denied plaintiff’s ownership of the crops and livestock and his tenancy on the lands.

Motions for a new trial and in arrest of judgment were overruled and judgment entered on the verdict.

Defendant’s first contention is that the court erred in overruling his motion in arrest of judgment for the reason that the declaration does not state a cause of action.

Before verdict and judgment, pleadings are to be construed most strongly against the pleader but after judgment the rule is reversed and the pleadings upon which the judgment is based are liberally construed and given every reasonable intendment to sustain the judgment. Smith v. Rutledge, 332 Ill. 150; Plew v. Board, 274 Ill. 232.

It is defendant’s contention that the declaration is insufficient in that it does not charge the defendant with negligence in the location of its mine or in permitting the slag pile to accumulate upon its premises or in permitting it to become ignited or that the defendant was negligent in not having extinguished the fire sooner than it did.

Plaintiff had the natural right to have the air diffused over his premises reasonably free from smoke, fumes, gases and other impurities. On the other hand, defendant had the right to use its property in such a way as it might choose subject, however, that it did not have the right to use it in a way as to cast smoke, fumes, gases and other impurities upon the lands of plaintiff in such amounts as to materially interfere with plaintiff’s use and the use and enjoyment of his property including his home. Cooper v. Randall, 53 Ill. 24; Chicago-Virden Coal Co. v. Wilson, 67 Ill. App. 443; Matthiessen & Hegeler Zinc Co. v. Ferris, 72 Ill. App. 684.

The declaration alleged plaintiff’s possession of his property, the uses he was making of it, the existence of defendant’s slag pile, its ignition followed by burning and casting of fumes and gases upon plaintiff’s property rendering his habitation uncomfortable, damaging his crops and livestock. By these allegations, plaintiff has alleged facts from which the law gives bim certain rights, a transgression of those rights by the defendant and resulting damages. This is all the law requires in pleading. In Taylor v. Felsing, 164 Ill. 331, the court said: “Where facts are stated which in law raise a duty, and the disregard of duty and consequent injury are properly averred, the count will be regarded as sufficient. The pleader must state facts from which the law will raise a duty and show an omission of the duty and resulting injury, but when that is done an allegation that the fact was negligent is unnecessary. ’ ’ The declaration stated a cause of action.

Defendant further contends that the court erred in rulings on evidence. It offered to prove by its mine superintendent that the method used in separating the refuse from the coal was the usual, approved and ordinary method of separating the refuse from the coal. In Cooper v. Randall, supra, plaintiff brought an action to recover damages caused by the erection and operation of a flour mill upon an adjacent lot whereby large quantities of chaff, dust, smut and dirt were thrown into plaintiff’s house. Evidence was introduced by the defendant over the objection of plaintiff for the purpose of showing that the machinery of the mill was excellent and the mill was properly managed. The court held that in the absence of a claim for vindictive damages the evidence was not admissible. The evidence offered was properly rejected in the case at bar.

Plaintiff testified as to the date of the fire and when it was extinguished, that the smoke and gases continued during each of the months, more dense at times than others, that he kept a memorandum as to the dates on which various things occurred. He had this memorandum, which was on a calendar, when testifying and referred to it to refresh his recollection as to what happened on particular dates. Defendant contends that there was error in permitting the witness to use the memorandum. A witness can testify only to such facts as are within his knowledge and recollection but he is permitted to refresh and assist his memory by use of written instrument, memorandum or entry in a book and it is not necessary that the writing should have been made by the witness or that it should have been an original writing, provided that after inspecting the record, he can speak to the facts from his own recollection. Scovill Mfg. Co. v. Cassidy, 275 Ill. 462.

The plaintiff, after refreshing his recollection by reference to the memorandum, was able to testify as to the dates on which certain conditions existed. The exact date was not material except to substantiate the proof as alleged in the bill of particulars and it is apparent that the witness referred to the memorandum for fixing the date and testified to the facts of what occurred on that date independent of the memorandum itself. The court did not err in its ruling on this point.

Objection is made to the court’s ruling in permitting the plaintiff to prove the value of stock which he claimed to have lost as a result of gas, smoke and fumes without first showing by credible evidence that the death of the stock had been caused by the smoke or fumes.

Plaintiff testified that at the beginning of the fire he had 81 sheep, that he pastured them in a blue grass pasture, later changing them to a sweet clover field, that between the dates of July 30, 1931 and November following, 28 of them died, that he saw the sheep eating elm leaves which the evidence shows to have been covered with some kind of a deposit. Plaintiff testified that he had 30 hogs, that they were running in an alfalfa field and on August 14, they became sick and between that date and September following a large number of them died. He called a veterinary who testified that he diagnosed the ailment of the hogs as cholera. He also testified in answer to the hypothetical question that if hogs fed on vegetation that had a deposit of sulphuric acid or sulphuric dioxide coming from a burning pile of slag and refuse it might, if taken in sufficient quantity, cause death. Similar evidence was introduced in reference to poultry and other livestock. Plaintiff was permitted over objection of defendant to prove the value of the poultry and livestock. There is evidence which tends to prove that there was smoke, dust and sediment from the fire that settled on and adhered to the vegetation where the animals were kept but there is no evidence upon which to base a finding that it was in sufficient quantities to cause death of the animals feeding upon it nor the amount that would have to be consumed by animals to cause death nor that the animals that died were poisoned from eating it. So far as the record shows the sheep, chickens and cow might have died from other causes and the veterinary testified that he diagnosed the cause of death of the hogs as cholera. Where resort must be taken to speculation or conjecture for the purpose of determining whether the damages result from the wrongful act from which complaint is made or from some other cause, damage cannot be allowed. The admission of this evidence constitutes reversible error. Johnston v. City of Galva, 316 Ill. 598; Indianapolis, B. & W. Ry. Co. v. Birney, 71 Ill. 391; Daughetee v. Ohio Oil Co., 263 Ill. 518.

The instructions to the jury were in narrative form and complaint is made of the seventh, eighth and eleventh paragraphs. The seventh paragraph told the jury that the claim of the plaintiff is not based upon any charge of negligence but is founded upon the contention that the defendant permitted a condition to exist upon its property which interfered with plaintiff’s use of his own property and thereby caused damage to him; that the plaintiff was not required under his declaration to prove that any action of the defendant was negligent but was only required to show by a preponderance of the evidence that defendant caused or permitted the condition complained of to exist upon its property with damages to plaintiff and his property.

The eighth paragraph told the jury that it was not a defense to plaintiff’s claim that the slag or refuse on defendant’s property was caused to ignite throug'h combustion or other cause not started by defendant, that the declaration charged that the defendant allowed the fire to continue for a space of time and it is sufficient upon this point for plaintiff to prove by a preponderance of evidence that the fire was upon defendant’s property and that it continued for a sufficient time to cause damage to plaintiff’s property.

We have construed plaintiff’s declaration as averring facts from which plaintiff’s rights arise, a violation of those rights by the defendant followed by damage to plaintiff and his property. The averment is that a slag pile was ignited and permitted to burn for three months. The evidence shows that it was ignited by spontaneous combustion and did burn for more than three months. Negligence may arise from failure to act where there is a duty resting upon one to act, and if the gases, fumes and smoke continued to pass over plaintiff’s property for more than three months when by the exercise of reasonable diligence, it could have been extinguished sooner, then defendant’s failure to act was negligence. Defendant offered evidence as to its efforts to extinguish the fire and the evidence shows that the fire burned intermittently from June 12 until the latter part of November and that at times defendant had it under control to such an extent that the odors and gases were scarcely noticeable. These instructions ignored the cause of the fire and the efforts put forth by the defendant in endeavoring to extinguish it. The question as to whether the defendant used due and reasonable diligence in the piling of the slag so that spontaneous combustion would not occur and the care it used in the extinguishing of the fire were questions for the jury to consider. It was error to give these instructions.

The eleventh paragraph of the instructions was in reference to the amount of damage and was misleading in that it did not require the plaintiff to prove each particular item of the damage by a preponderance of the evidence.

Defendant complains on the refusal of certain instructions. We have examined them and find that there was no error in the refusal of such instructions.

For the reasons assigned, the judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.


text:
    Alexander Huff, Appellee, v. Illinois Central Railroad Company, Appellant.

      Opinion filed March 4, 1935.
    Kramer, Campbell, Costello & Wiechert, of Bast St. Louis, for appellant.
    Beasley & Zulley, of East St. Louis, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

Appellee, herein referred to as plaintiff, instituted an action in case in the circuit court of St. Clair county against appellant, herein referred to as defendant, to recover damages for an injury he claims he sustained in an accident on April 12,1933, while in the employ of defendant as a car repairer.

By the pleadings and stipulations of facts, it is conceded that if plaintiff has a right of recovery, it is under the provisions of the Federal Employers’ Liability Act, Cahill’s Ill. St. ch. 114, W 321-325.

The declaration, which was filed prior to January 1, 1934, contains two counts. The first count charges that the defendant directed the plaintiff to work upon a certain car and “that the defendant then and there negligently, carelessly and improperly failed and refused to furnish plaintiff sufficient help to do the work upon said car, to wit, remove the old drawbars and install new drawbars, ’ ’ and that as a result of not having sufficient help to remove the old drawbars and install new ones, and while doing such work with due care and caution, one of the drawbars weighing, to wit, 350 pounds, fell upon him and he was thereby injured.

The charge of negligence in the second count is that the defendant furnished the plaintiff with a defective, worn and broken jack for the purpose of lifting said old drawbars so that the same could be removed from the car, that the condition was known to the defendant, or could have been known to it by the exercise of reasonable care; and that when the plaintiff, with due care and caution for his own safety, attempted to operate the jack, it tripped and permitted the drawbar to fall in such a way as to jerk the plaintiff causing the injury.

Defendant filed a general issue and a plea of the two-year statute of limitations. On a trial, the jury returned a verdict of $8,000 for plaintiff. After ordering a remittitur of $3,000, the court overruled defendant’s motion for a new trial and in arrest of judgment and entered judgment against the defendant for $5,000. Defendant has perfected its appeal to this court.

At the close of plaintiff’s evidence and at the conclusion of all the evidence, the defendant moved for a directed verdict. The motion was overruled and the court’s ruling is assig’ned as error.

The evidence shows plaintiff to be about 50 years of age and that he had been in the employ of the defendant in its yards at East St. Louis for more than 10 years prior to the accident, that for two or three years immediately preceding the accident he was employed as a car repairer. On the morning of the accident, the foreman under whom plaintiff was working gave plaintiff a list of the cars upon which he was to work which included the car upon which he was working at the time of the accident. The nature of the work to be done on this car was not disclosed at the time.of the assignment. After completing work on another car, he went to the car in question and, upon examination of the inspector’s notice, he found that both drawbars were to be removed and new ones installed.

He began work on the drawbar on the front end of the car. It is described as weighing about 350 pounds and is located between two sills that extend the length of the car. It is held in position by tie straps that are fastened at the ends to the sills and other parts of the car. To remove the tie straps, it is necessary to lift the weight of the drawbar from the straps so that the nuts that hold the tie straps may be removed. Defendant furnished plaintiff certain tools with which to work including a-15-ton jack. The jack is described as having a plunger that works up and down in a casing* by the operation of a lever. Inside the casing are certain springs and triggers that by the operation of the lever raises or lowers the plunger whichever way it may be set. Plaintiff’s testimony is the only evidence as to the accident. He testifies that he placed the jack on a block of wood directly under the draw-bar; that he placed ,a small piece of wood on top of the plunger and operated the lever, raising the plunger until the weight of the drawbar rested upon it; that he then cut the tie straps’ fastenings and made ready to lower the jack which was then carrying the weight of the drawbar; that to accomplish this, he stood at the outer end of the drawbar and placed both hands on it to guide and make it come down straight and worked the lever on the jack with his foot; that each upward and downward movement of the lever would lower the plunger about one-half inch; that he had worked the lever of the jack twice and he found that the drawbar was stuck by reason of a broken spring; that he shook the bar with his hands to release it when the jack tripped letting the plunger fall into the casing and the drawbar dropped out of its position onto the ground, jerking him down on top of it. He testified that when he started working on the car, Steger, his foreman, came along and he said to him, “Mr. Steger, there are two drawbars on this car to come out; will you give me somebody to take them out?” and Mr. Steger said, “You get them out; that car goes out at 2:30. If you can’t get them out, I will get somebody who can. It has to go at 2:30.” He testified that the usual and approved method of removing a drawbar was to have two men work together on it The evidence does not disclose the particular part that would be taken by each workman. "Several witnesses testified for the defendant that it was not the usual practice to have more than one man remove a drawbar.

Plaintiff testified that by reason of the jerk and fall caused by the dropping of the drawbar he suffered pain in his back and stomach, became sick and was forced to discontinue work for a few hours; that he returned that afternoon but was unable to work. His fellow employees testified that he did not make any complaint to them on that date of having received injury. The next day after the accident, plaintiff applied to the yard foreman for medical aid and reported that he was suffering from an injury he received while working on a truss rod in 1931. On the third day following the accident he appeared before a board of inquiry investigating the nature of the injury and cause of the accident. He received an order for medical aid and was then sent to the defendant’s hospital in Chicago for an operation. In all of these interviews, he gave the history of the accident as having occurred in April or May, 1931, and made no reference to any accident occurring in April, 1933. On May 9, following the alleged accident, he was operated on in Chicago for double inguinal hernia. The doctor gave it as his opinion that the condition was of long standing.

Defendant contends that the charge of negligence of insufficient help in the first count is a risk that was assumed by the plaintiff.

In actions brought under the Federal Liability Act the State courts are governed in their construction, application and interpretation of the act by the decisions of the federal courts. Brant v. Chicago & A. R. Co., 294 Ill. 606; Central Vermont Ry. Co. v. White, 238 U. S. 507; Walker v. Iowa Cent. Ry. Co., 241 Fed. 395; Beck v. Baltimore & O. R. Co., 244 Ill. App. 441.

Under section 4 of the act, assumed risk is not a defense where the railroad has violated any statute enacted for the purpose of protecting and safeguarding employees and where the violation contributed to the injury but under the facts in this case that section has no application. In this character of cases, assumed risk is a complete defense and the burden of proof on such an issue is on the defendant. Brant v. Chicago & A. R. Co., supra; Seaboard Air Line Ry. v. Horton, 233 U. S. 492; Jacobs v. Southern Ry. Co., 241 U. S. 229; Chicago, R. I. & P. Ry. Co. v. Ward, 252 U. S. 18.

An employee assumes the risk of dangers normally incident to the occupation in which he voluntarily engages, so far as these are not attributable to the employer’s negligence. Gila Valley, G. & N. Ry. Co. v. Hall, 232 U. S. 93.

Under the evidence in this case the plaintiff by his years of experience in car repairing had acquired a full knowledge of the weight of the drawbar, its mechanism, the way it was fastened to the car and the tools necessary to be used in removing it. He also knew the various steps that had to be taken to release the tie straps and to lower the bar on to the ground or axle of the car and was fully acquainted with the tools used in such an undertaking. If plaintiff’s charge of negligence is based upon the assumption that he did not have sufficient knowledge to do the work or that he was not physically strong enough to do it, then, in either event, he is charged with having assumed the risk incident to insufficient knowledge or lack of strength. His knowledge of his own strength and ability was superior to that of the defendant. Hallstein v. Pennsylvania R. Co., 30 F. (2d) 594; Lutgen v. Missouri Pac. R. Co. (Mo. App.), 294 S. W. 444; Lively v. Chicago, R. I. & P. Ry. Co., 115 Kan. 784, 225 Pac. 103; Hines v. Cox, 192 Ky. 94, 232 S. W. 373; Williams v. Kentucky River Power Co., 179 Ky. 577, 200 S. W. 946, 10 A. L. R. 1396; Stenvog v. Minnesota Transfer R. Co., 108 Minn. 199, 121 N. W. 903, 25 L, R. A. (N. S.) 362, 17 Ann. Cas. 240.

If the charge of negligence of furnishing insufficient help is to be based upon the assumption that more men would have prevented the drawbar falling, then plaintiff has failed by his proof to show in what way additional help would have prevented it. It is his contention that there should have been one more man and the record is silent as to what part or parts such additional man would take in the work to be performed. The greater part of the drawbar being under the car and being supported in the way that the evidence discloses, it is not probable that two men eonld have released the fasteners and lowered the drawbar in any different way than the plaintiff undertook to do it.

Plaintiff contends that the defense of assumed risk is an affirmative defense and must be pleaded by defendant. In New York, N. H. & H. R. Co. v. Vizvari, 210 Fed. 118, in considering the necessity and sufficiency of the plea of assumed risk, the court said it is necessary to observe that a difference exists between the assumption of ordinary risk and the assumption of extraordinary risk. If the risk is of the former kind, it is not incumbent on the defense to plead it but if the risk is of the latter kind, the interpretation in some jurisdictions is that if the defendant desires to rely on it, it is a defense he must specially plead.

In this case, the facts upon which plaintiff bases his charge of negligence are the very facts from which the assumption of risks arises and it is our conclusion that the general issue plea traversed it and that it was not necessary for the defendant to plead it specially.

Plaintiff further contends that the question of assumed risk is one of fact for the jury. That is a general rule but when the risk assumed is so obvious and so apparent that the minds of ordinary and prudent men would come to the conclusion that it was a risk, then it becomes a question of law.

Defendant contends that the court erred in not directing a verdict as to the second count for the reason that the burden of proving that the jack was defective and worn and that it caused the injury rested upon the plaintiff and that there is no evidence tending to prove that such was the case or that any negligent act of the defendant was the cause of the drawbar falling.

Plaintiff testified that “From all I could see the jack was all right. When I used it over there to raise it up against the coupler it was all right. In my work as car repairer I use those jacks all the time.” There is no evidence that there was any defect in any of the parts of the mechanism of the jack. Assuming that the jack tripped and the plunger dropped into the casing, this does not of itself establish the fact that the jack was defective or worn. Plaintiff averred that the plunger of the jack dropped because of its defective and worn condition and to maintain that issue, it was necessary for him to furnish evidence tending to prove that the jack was in such condition from which it could be reasonably inferred that the drawbar fell because of such defects. For all that appears in this record, the interior mechanism of the jack may have been in perfect condition and the fall of the drawbar may have been caused by some defect of which the defendant had no knowledge and for which it could not have been charged with knowing.

In New Orleans & N. E. R. Co. v. Harris, 247 U. S. 367, 371, 372, the court says: “The federal courts have long held that where suit is brought against a railroad for injuries to an employee resulting from its negligence, such negligence is an affirmative fact which plaintiff must establish. Nitro-Glycerine Case, 15 Wall. 524, 537; Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, 663; Looney v. Metropolitan R. Co., 200 U. S. 480, 487; Southern Railway-Carolina Division v. Bennett, 233 U. S. 80, 85.”

In Patton v. Texas & Pacific Ry. Co., supra, the court said: “The fact of accident carries with it no presumption of negligence on the part of the employer, and it is an affirmative fact for the injured employee to establish that the employer has been guilty of negligence (Texas & Pacific Railway v. Barrett, 166 U. S. 617). Second. That in the latter case it is not sufficient for the employee to show that the employer may have been guilty of negligence — the evidence must point to the fact that he was. And where the testimony leaves the matter uncertain and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion. If the employee is unable to adduce sufficient evidence to show negligence on the part of the employer, it is only one of the many cases in which the plaintiff fails in his testimony, and no mere sympathy for the unfortunate victim of an accident justifies any departure from settled rules of proof resting upon all plaintiffs. Third. That while the employer is bound to provide a safe place and safe machinery in which and with which the employee is to work, and while this is a positive duty resting upon him and one which he may not avoid by turning it over to some employee, it is also true that there is no guaranty by the employer that place and machinery shall be absolutely safe.”

In Moit v. Illinois Cent. R. Co., 153 Fed. 354, the plaintiff sought to recover damages for an injury caused by a jack slipping and throwing a load on to him and injuring him. The court in the course of its opinion said that “there was no presumption of negligence arising from the accident itself, but the liability of the company to its employee must be made out by proof that the company was negligent, and this negligence brought about the resulting injury. If the testimony left the matter uncertain, indicating only that one of a number of things may have brought about the injury, for some of which the company was responsible and for others not, it was not for the jury to guess between these numerous causes and find that the negligence of the company was the real cause, when there was no satisfactory foundation in the testimony for that conclusion.”

Under such a state of the record, it was the duty of the trial court to direct a verdict in the defendant’s favor. Gulf, M. & N. R. Co. v. Wells, 275 U. S. 455.

Other errors are assigned but from the view we take of this case, it is unnecessary to consider them.

For the reason assigned the judgment of the court is reversed.

Judgment reversed.