author: Mr. Justice Scanlan

text:
    George J. J. Guerten, Complainant, v. Stanislaw Zachas et al., Defendants. Stanislaw Zachas and Rozalia Zachas, Cross-Complainants, v. George J. J. Guerten et al., Cross-Defendants. George J. J. Guerten, Appellant, v. Stanislaw Zachas and Rozalia Zachas, Appellees.
    Gen. No. 33,710.

      Opinion filed March 11, 1930.
    Townley, Wild, Campbell & Clark, for appellant; Charles Y. Clark and Frederick D. Carroll, of counsel.
    Edwin Terwilliger and Pearl M. Hart, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.

George J. J. Guerten filed his bill in the superior court of Cook county to foreclose a trust deed securing certain notes and interest coupons. Stanislaw Zachas and Eozalia Zachas, his wife, and Edmond Ostronski, as trustee, were made defendants. The defendants Stanislaw Zachas and his wife filed an answer to the bill and also a cross-bill to have the notes held by Guerten canceled and the trust deed removed as a cloud upon the title. Guerten, cross-defendant, filed an answer to the cross-bill. The bill was taken as confessed against the defendant Ostronski, as trustee. The case was tried before a chancellor, who entered a decree dismissing the original bill for want of equity and granting the relief asked in the cross-bill to the extent- of canceling the trust deed held by the complainant Guerten, and removing it as a cloud upon the cross-complainants ’ title. The decree provided that it was without prejudice to the rights, if any, of the parties to the case to begin, maintain or defend any suit or suits at law on the notes held by Guerten. The complainant and cross-defendant Guerten will be hereinafter referred to as the appellant, and the defendants and cross-complainants Stanislaw Zachas and Eozalia Zachas will be hereinafter referred to as the appellees.

The bill was in the usual form of one for foreclosure and alleged that the appellees had executed the trust deed, notes and interest coupons described therein; that the same were held and owned by the appellant; that there had been a default in the payment of the principal and interest, and that, pursuant to the terms of the trust deed, he had elected to declare due and payable the entire amount of the indebtedness secured by the trust deed. The appellees, in their answer, alleged (inter alia) that they were of Polish nationality and were unable to read or write the English language; that about April 1, 1925, “they were having domestic difficulties between themselves”; that one Ostronski, also of Polish nationality, had been engaged for several years in the real estate, mortgage loan and insurance business and had held himself out to the appellees and others of said nationality as a competent legal adviser in and about their property rights and domestic relations, and thereby gained the confidence of the appellees; that Zachas consulted him in reference to the proper manner of establishing his interest in the property described in the bill of complaint in the event of a separation between him and his wife; that Ostronski stated that the property was worth about $7,000; that Zachas said that he wanted something to show his interest in the property, that he thought he should have an interest of about $3,000 and that his wife could have the balance of it, or about $4,000; that Ostronski advised him “that a proper and safe method to establish his interest in the said property would be to have a mortgage in the sum of $3,000 executed against said property,” which mortgage should be retained and held by him, the said Zachas; that thereupon, at the request of Zachas, Ostronski prepared mortgage notes in the sum of $3,000, together with coupon notes evidencing the interest thereon, and also a trust deed on the said property in the amount of $3,000; that at the same time Ostronski, intending to cheat and defraud appellees, falsely and fraudulently represented to them that the mortgage notes then and there submitted to them were in the amount of $3,000, but that, as a matter of fact, as appellees were informed and believed, Ostronski, by fraud and circumvention, surreptitiously and without the knowledge of appellees, included among the said notes additional or duplicate notes in the further sum of $3,000, with coupon notes evidencing the interest thereon, which appellees thereupon executed, believing and intending at the time that they were executing mortgage notes in the sum of $3,000 only; that Ostronski thereupon offered to hold the said notes for $3,000 “for safe keeping” for Zaehas, to which the latter agreed; that afterwards Zaehas demanded the return to him of the said $3,000 in principal notes and said coupon notes and said trust deed, and that Ostronski thereupon delivered to Zaehas the said principal notes aggregating $3,000, with interest coupon notes evi-' dencing the interest thereon, but failed to return to him the trust deed, Ostronski representing to him that the trust deed was on file in the recorder’s office and could not be returned to him; that no consideration was received by appellees from Ostronski or any other person for or on account of said trust deed or notes, and that said notes and interest coupon notes described in the bill of complaint, “are, as these defendants are informed and believe, the same additional notes and coupons, the signatures to which were obtained surreptitiously and by fraud and circumvention of the said Ostronski. ”

The cross-bill of appellees sets up substantially the same matters as are set forth in their answer to the bill. It also alleged that appellees are in possession of the premises in question and that the trust deed described in the bill of complaint is a cloud upon the title of appellees, and it prayed that the trust deed might be declared null and void and as a cloud upon the title of the appellees and that the notes held by-appellant should be delivered up and canceled.

In his answer to the cross-bill appellant denied that the notes and trust deed which he held were .obtained surreptitiously or by fraud and circumvention in the execution thereof; alleged that about April 13, 1925, the principal notes and interest coupons were offered for sale to him and that he took said notes to the residence of appellees and there interviewed Mrs. Zachas and her daughter, and that he showed them the notes and interest coupons described in the bill and asked them if they were genuine and if they were signed by the appellees and that Mrs. Zachas stated that the notes were genuine and that the appellees owned the property conveyed by the said trust deed, and that thereupon he completed the purchase of said notes and received the trust deed securing the same, and then placed them in the Second Security Bank of Chicago for collection of the notes, and that since that time the appellees have paid all the interest and the first instalment of the principal, amounting to $500, as the notes representing the same matured, except that some of the payments were not made promptly and were delayed for some time after maturity; that the appellees paid the first $500 represented by principal note No. 1 after they were fully aware of all the facts which they now claim to know with respect to the fraud or dishonesty of Ostronski; that he, appellant, bought the notes in question in good faith for value before their maturity; that if any fraud was perpetrated by Ostronski it had been made possible by the' action of appellees in executing the notes and trust deed sought to be foreclosed and placing them in the hands of Ostronski; that appellees were estopped to deny the genuineness of the notes, even assuming that they were executed without consideration, because of their acts in placing the notes in the hands of Ostronski knowing that the same were fair and valid on their face and that they could be easily negotiated by Ostronski; that they were also es-topped by the action of Mrs. Zachas in informing appellant, before he purchased the notes, that they were genuine, and by the failure of the appellees to assert the invalidity of the notes when the same were presented to them for payment, and also because of their action in paying the first principal note of $500 and the interest which accrued on all of the notes prior to April 1, 1927.

There is but little conflict in the testimony material to the issues. About April 1, 1925, Stanislaw Zachas and his wife were about to separate because of domestic discord. They owned the premises in question in joint tenancy. In a talk with his wife, Zachas proposed that he be given “some kind of paper on this property” to show his interest in the same, as he was about to depart from the premises and leave her in possession. Mrs. Zachas agreed to the proposition and Zachas went to Ostronski and stated the situation to him and the latter advised Zachas that he, Zachas, “should have a mortgage for $3,000 and that the balance of $4,000 of the value of the property should be left for the family. ’ ’ Zachas told Ostronski to prepare notes for 5 years for $3,000. On or about April 1,1925, Zachas and his wife went to Ostronski’s office and it is conceded that they there, knowingly and intentionally, signed and acknowledged the trust deed which appellant sought to foreclose, and also signed certain principal notes for $3,000 and the interest coupon notes for the same. There were three principal notes signed: One for $500, due April 1,1926; one for $500, due April 1, 1927, and one for $2,000, due April 1, 1928. These notes were made payable to themselves and were by them indorsed in blank. The testimony of appellees as to the circumstances surrounding the execution of the trust deed and notes is rather meager. Their counsel thus states appellees’ theory of fact as to the execution of the same: “Ostronski told them that the notes and mortgages were for $3,000, together with interest coupon notes covering interest for the period of the mortgage, which was five years. Instead, however, of signing only the $3,000 in principal notes which they had asked Ostronski to prepare and which they supposed they were signing, they were made to sign principal notes totalling $6,000, with appropriate coupons. One set of interest coupon notes and principal notes in the amount of $3,000 was an exact duplicate of the other set held by Zachas. . . . The two sets of notes, of exactly the same appearance and tenor, were all typed at the same time, one set being printed through a black ink ribbon and the other through black carbonized paper. ’ ’ Counsel for the appellant states that ‘ ‘ the testimony does not show what happened at the time the papers were executed, but apparently Ostronski caused the defendants to execute not only the original notes aggregating $3,000 with interest coupons, but also carbon copies of these notes and interest coupons, which copies had apparently been made with the same impression on the typewriter as the originals. . . . The complainant owns the original notes and interest coupons. The defendants produced in court the carbon copies thereof duly signed and indorsed by them.”

The decree finds that Ostronski, in April, 1926, returned to Zachas “the carbon printed set of said notes with like interest coupons attached.” The notes and trust deed were left with Ostronski. As it is conceded that there were but two sets of notes signed by the appellees, the decree, in effect, finds that the notes held by appellant were the original ones executed, and all the circumstances clearly sustain this finding.

Shortly after April 1, Ostronski delivered the original notes and coupons and the trust deed to Mr. Smith, head of the real estate loan department of the Second Security Bank of Chicago, for the purpose of having the bank find a purchaser for the same. Ostronski was a' customer of the bank. The appellant is a druggist and had been doing business with the bank for years and had bought “quite a few” mortgages from it. Smith had been told by appellant that he would like to purchase a mortgage for $3,000 or $4,000, and on April 13, 1925, he told appellant of the mortgage and notes in question and appellant said that he thought he would like to purchase the same, and thereupon it was agreed between them that appellant should leave with Smith his note and a check amounting to the purchase price of the notes, and it was further agreed that appellant should take the notes, visit the premises, examine the same, see the owners and have them identify their signatures on the notes, and that appellant was then to telephone to Smith as to whether or not the deal was satisfactory, the latter agreeing that he would hold the note and check until, appellant advised him that the deal was satisfactory. Appellant testified that he went to the premises, examined the same and interviewed Mrs. Zaehas, to whom he talked through a girl about 12 or 13 years of age who was there and who he presumed was the daughter of Mrs. Zaehas; that he showed the notes in question to Mrs. Zaehas and asked her whether she had signed them, and she said that she had; that he then asked her if she owned the property and she indicated by a nod of her head that she did, and he told her that he was figuring on buying the mortgage. Mrs. Zaehas testified that appellant called on her not very long after she signed the notes and “just asked her whether that was her name on there . . . He just showed me the papers and that is all he asked me,” but she did not specifically deny appellant’s testimony as to what was said and done. She did not testify .that she did not fully and completely understand what was said and done at the time of the conversation; nor did she deny that appellant told her that he was going to buy the mortgage. Thereafter appellant telephoned Smith that he had visited the premises and that the deal was satisfactory to him and that he would take the mortgage. Appellant then delivered the various notes and interest coupons to the bank for collection and on October 1,1925, the first interest coupon became due and was paid at the bank, but by whom the records of the bank do not show. The son of the appellees testified that “neither my father nor mother, nor anyone for them, nor anyone of our family paid the prior instalments of interest or the partial payments on those notes,” but neither of the appellees testified in reference to this payment. Appellant testified that when the second instalment of interest and the principal note for $500 became due on April 1,1926, he went to the premises and there saw Zaehas and told him that the mortgage would have to be paid or he would start foreclosure proceedings. Although Zaehas testified, he did not deny this conversation, and when the solicitor for appellant sought on cross-examination to interrogate him in reference to it the solicitor for appellees objected to the interrogation on the ground that it was not proper cross-examination, that they had not gone into that matter on direct. The interest coupon which matured April 1, 1926, was paid at the bank. The son of appellees testified that “they” did not make the payment, but neither of the appellees testified in reference to this payment. After April 1, 1926, when the principal note Ño. 1 for $500 matured, and until it was paid in full on October 20, 1926, Smith wrote various letters to appellees telling them that unless the note was paid foreclosure proceedings would be started. In one, dated July 30, 1926, Smith stated that only $300 had been paid on the said note and that unless the balance of $200 was paid on or before July 31, the owner of the mortgage would deliver the same to his attorneys with instructions to start foreclosure proceedings. The appellees produced a letter addressed to them, dated October 18, 1926, signed by Smith, in which the latter advised them that unless the balance of $100 then due on the said note and the interest which was due October 1, 1926, were paid promptly, foreclosure proceedings would be started. The appellees appear to have ignored all the letters but the last one. After the receipt of that one, they and their adult son and a daughter had a conference with Smith at the bank. The appellees then paid $75 that represented the interest due October 1, 1926, and they agreed to pay, on the next day, the said $100 balance. On the following day this son went to the bank and paid to Smith the said $100. Smith testified that when appellees called on him on October 1, they did not tell him that the notes did not belong to Ostronski, that they said that Ostronski was holding them, for them but that they did not expect that he would sell them; that they did not state that Ostronski had no right to offer the notes for sale. Smith further testified that the bank never sent any notices to Ostronski in reference to the notes.

The appellees have assigned two cross errors: “First, that the Court erred in decreeing that the decree should be without prejudice to the right to bring a suit at law upon the notes, and second, that the Court erred in refusing to decree that the notes and coupons be surrendered and cancelled as having been obtained by fraud or circumvention in the execution thereof.”

The appellant contends that the chancellor erred in dismissing his bill for want of equity and in entering a decree in favor of appellees on the cross-bill. After a very careful consideration of the record we are satisfied that this contention is a meritorious one. The appellees strenuously argue that “the complainant’s notes were obtained by fraud or circumvention in the execution thereof and without negligence on the part of the defendants,” and in support of this contention they frequently state that the decree finds that the notes held by the appellant were the notes executed through the fraud of Ostronski. The decree makes no such finding. It finds that Ostronski prepared “a trust deed or mortgage in the sum of $3,000 but he then and there falsely and fraudulently represented to the cross complainants, who could not read or write the English language, that the mortgage notes then and there submitted for their signature were in the amount of $3,000 with appropriate interest coupons, whereas, as a matter of fact, the said Edmond Ostronski by fraud and circumvention surreptitiously and without the knowledge of the cross complainants included among said mortgage notes and coupons to be signed by the cross complainants in addition to one set of principal notes for $3,000, with interest coupons, certain additional notes in the sum of $3,000, making a total of $6,000 in notes with interest coupons, both $3,000 sets of said notes with interest coupons, except for signatures thereon, being typewritten, one set being exact carbon duplicates of the other, all of which said notes the cross complainants executed believing and intending at the time they were executing mortgage notes in the sum of $3,000 only.” The decree further found that Ostronski returned to the appellees the carbon printed set of said notes with interest coupons attached, and that the original notes were purchased by appellant ■ “in good faith, without notice.” That the appellees went to the office of Ostronski for the purpose of executing a trust deed and one set of principal notes for $3,000 and interest coupons is conceded by appellees in their pleadings and evidence. The appellees executed the trust deed for $3,000, in accordance with their purpose, but instead of executing only one set of principal notes for $3,000, through the fraud of Ostronski they executed two sets, each for the sum of $3,000. What are called the “original” notes were purchased by appellant from the bank, and what are called the “carbon copy” notes were returned to Zachas by Ostronski in April, 1926. It is a familiar principle that a party cannot urge fraud as a defense unless it appears that he has sustained damage by reason of the fraud. The act of Ostronski which caused injury to Zachas was not his fraud in having two sets of notes executed, but his fraud in delivering the original notes and coupons with the trust deed to the Second Security Bank for the purpose of having the bank find a purchaser for the same, which Zachas enabled him to do by leaving them with him indorsed in blank. Zachas, under the agreement between him and his wife, became the sole owner of the original principal and coupon notes and was entitled to the immediate possession of the notes and the trust deed. Zachas stated to Ostronski, in the presence of Mrs. Zachas, “the papers are mine,” but he added that he did not wish to keep them as he might lose or sell them, and when Ostronski agreed to keep the mortgage and notes Zachas said to him: “You keep the notes. When I can’t work or have sickness I can live on them.” It is clear from the testimony that Mrs. Zachas made no objection to anything that was said or done by her husband at the time of the execution of the papers. Zachas testified: “I left the notes with him.” Ostronski, in his possession of the notes and mortgage, was acting as the agent of Zachas. It was this agent who committed the fraud that caused the damage. Where one of two innocent parties must suffer by reason of the fraud or wrongful conduct of another,, the burden must fall upon him who put it in the power of the wrongdoer to commit the fraud or do the wrong. (Connor v. Wahl, 330 Ill. 136.) We think that case controls the instant one.

The appellees claim that Olds v. Cummings, 31 Ill. 188, 192, governs the present case and that under the decision in that case it was the duty of the appellant to inquire of the appellees if there was any reason why the mortgage should not be paid, and that “if Mr. Guerten had gone either to Mr. Zachas or Mrs. Zachas with a competent interpreter and made them understand that he was inquiring if there was any reason why they should not pay the mortgage, and that, if not, he would purchase it, there would have been an immediate effective protestation against any liability on the notes.” In Connor v. Wahl, supra, in distinguishing the Olds case, the court said:

“The only question before the court in the Olds case was whether the defense of usury, which was good as against the mortgagee, could be enforced against Ms assignee, with or without notice. There was no question in that case as to the effect of the release of a trust deed by the trustee, or the failure of the mortgagor to take up the first note and mortgage before he executed the second note and mortgage, or the right of the assignee to rely on what the public record showed with reference to the title. There was no evidence showing any equities between the mortgagor and the assignee except that the mortgagor claimed usury as against the mortgagee. The mortgagor had not by any negligence on his part defeated or curtailed Ms right to impose that defense against" the assignee. On account of these additional questions wMch enter into the case at bar, the Olds case is not conclusive of the questions raised in tMs case.”

We may add that in the Olds case the decree found that the complainant had notice of the usury and therefore he failed to show any equitable ground why the defendant had not the right to interpose the defense of usury. In our judgment the case of the appellant presents stronger equitable grounds than Connor v. Wahl, supra, why the doctrine of the Olds case should not control. By the agreement Mrs. Zachas became the equitable owner of the premises in question, and while no deeds passed to give her a legal title to the same, equity will presume that to be done which should be done; and even if the rule in Olds v. Cummings, supra, could be applied to a case like the present one, she was the equitable owner of the property, and we think the evidence shows that the appellant, prior to the time that he purchased the notes, brought himself fairly within the spirit of that rule. That the appellant showed her the notes is admitted, and that he told her he was figuring on buying the mortgage is not disputed. She recognized the right of her husband, under the agreement, to sell the notes, and, according to her own testimony, she did not state or intimate to the appellant at the time that he called on her that there was any good reason why he should not purchase the notes. She and her husband were then separated and not living in the same premises, and it is a reasonable inference from all the facts that she supposed from what the appellant said to her that her husband was about to sell the notes. Moreover, as she was present and sanctioned the action of her husband in leaving the notes and trust deed with Ostronski, she is hardly in a position to interpose the rule of the Olds case. As Zaehas made it possible for his agent, Ostronski, to sell the notes, he is in no position to invoke that rule, and therefore the fact that the appellant did not inquire of Zaehas concerning the notes, before he purchased them, can avail Zaehas nothing.

The appellees contend that there was no consideration for the notes and that this is a good defense “even if the execution of the notes were ratified.” There is no merit in this contention, as the notes and mortgage were executed in furtherance of the agreement between the appellees and there was, therefore, adequate consideration for the same.

The appellant contends that “with full knowledge of all the facts, the defendants, by paying part of the principal note which matured on April 1, 1926, and the interest which matured on October 1,1926, ratified and confirmed the act of Ostronski in transferring the defendants’ notes to the complainant.” This conten tion has been argued strenuously and with force, but in the view that we have taken of this appeal we do not consider it necessary to pass upon the same.

The decree of the superior court of Cook county is reversed and the cause is remanded with directions to dismiss the cross-bill and to enter a decree for the appellant on the original bill.

jReversed and remanded with directions.

Barites, P. J., and Gridley, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    In Re Estate of Frank F. Wood, Deceased, Minnie I. Wood, Administratrix, Appellee, v. William V. Tyler, Appellant.
    Gen. No. 33,893.

      Opinion filed March 11, 1930.
    Rehearing denied March 24, 1930.
    C. R. Adams, for appellant.
    E. R. Hartigan, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

In the probate court of Cook county, Minnie I. Wood, administratrix of the estate of Frank F. Wood, deceased, filed a petition for a citation against the respondent, William V. Tyler, in which she alleged that he had in his possession moneys belonging to the deceased. A citation issued and the cause was heard by the court upon evidence offered by the petitioner and the respondent. The court found that on September 8, 1925, Frank F. Wood received from A. V. Booth & Company its check for $4,374.53, the proceeds of the sale of a certificate of membership of Wood in the Chicago Board of Trade; that the check was payable to the order of Wood and that on September 8, 1925, he indorsed it to W. V. Tyler, Trustee, and delivered it to the respondent; that the latter, as trustee and individually, indorsed the check and is chargeable thereon for the moneys evidenced thereby; that Tyler never paid to Wood or his estate the moneys evidenced by the check; that the said moneys belonged to Frank F. Wood, deceased, and now to his estate, and that the respondent withholds the moneys from the estate, and the court ordered that the respondent turn over or pay to the administratrix the sum of $4,374.53 within 30 days from the date of the order. Respondent appealed from this order. When the cause was called for trial de novo in the circuit court he demanded a jury trial, and thereafter the cause was tried befor.e the court, with a jury, and a verdict was returned finding that the respondent had in his possession $4,374.53 belonging to the estate. Judgment was entered upon the verdict and respondent has appealed.

Respondent contends that “the great weight of the evidence preponderates in favor of the respondent.” From an examination of the abstract it was apparent that the record had been insufficiently and inaccurately abstracted and we were therefore compelled to read the entire bill of exceptions to ascertain the actual evidence heard upon the trial. We found that, frequently, material evidence, prejudicial to respondent, was omitted from the abstract and that it also contains many mere conclusions, comments and arguments of the drafter. The petitioner not only failed to file a supplemental abstract, but in her short and inadequate brief failed to challenge in any way the accuracy or sufficiency of the abstract. Under the practice we might well have affirmed the judgment of the lower court for want of a sufficient and proper abstract.

Frank F. Wood died March 16, 1926. He had been a member of the Chicago Board of Trade. The respondent had been his attorney for a number of years. Wood was in debt and harassed by his creditors. On September 8, 1925, he sold to A. V. Booth & Company his membership on the Board and received from that company, in payment of the same, its check for $4,374.53, payable to the order of F. F. Wood. On the same date Wood took this check to the office of the respondent and there made the following indorsement on it: “Pay to the order W. V. Tyler, Trustee. F. F. Wood. ’ ’ Respondent made the following indorsements on the check, “W. V. Tyler, Trustee W. V. Tyler,” and deposited it in his bank to his personal account. On September 8, 1925, he wrote out and gave to Wood the following receipt: “Sept. 8th 25 Rec’d of F. F. Wood Check $4,374.53 for settlement of outstanding troubles W. V. Tyler.” The administratrix found the check and receipt in the pocket of her husband after his death. In support of the petition there was also introduced evidence tending to prove that the respondent, after the death of Wood, admitted that he was indebted to the latter. Respondent conceded that he never paid anything to Wood, or on account of Wood, from the proceeds of the check. His defense, as we understand it, is substantially as follows: In the same office with him was an organization called the Anti-Vice League, which was maintained by contributions; that the respondent was its attorney, and from evidence introduced in his behalf it appears that he participated, to some extent, in the business affairs of the League; that H. C. Wells and J. P. Harris were officers of the corporation, and oh October 8 they, acting for the League, cashed the check in question for Wood; that the League then owed respondent for legal services rendered, and on October 9 Harris gave respondent the check “in settlement for a sum due me from the Anti-Vice League”; that respondent did not receive the check from Wood and therefore did not have to account to Wood or to his estate for the proceeds he received from the check; that on October 8, when Harris and Wells stated that they were going to cash the check for Wood, respondent indorsed the check “W. V. Tyler, Trustee,” “because he then had no interest in it”; that respondent indorsed the check “W. V. Tyler” on October 9, after it had been given to him by Harris in payment of his account against the League.

Respondent admitted that in the hearing in the probate court he testified that he could not explain why the check had been made payable to him as trustee and that “Mr. Harris suggested it as a way that I could do that. He would take it and cash it and put it through my bank, a matter of deal between man and man.” He further stated that on September 8 Harris and Wood came to the respondent and asked him for something that “the^ could use, that he could show to fix his creditors.” At the time of the hearing in the probate court Wells and Harris were dead, and the evidence as to the occurrences that respondent claims took place on October 8 and 9 in his office, was given by him alone. No one connected with the League was called by him to give testimony of any kind, nor were any of the bank books, account books or records of the League introduced in evidence, although, as we have heretofore stated, evidence offered by respondent tends to show that he had to do with certain business matters of the League. Respondent was unable to produce any statement of account between him and the League and he testified that he had destroyed his bank statements and checks that related to the period in question. The respondent was unable to give a satisfactory reason as to why Wood indorsed the check to him as trustee, when, according to his testimony, Wood’s dealings were with the League and it cashed the check for Wood; or why, when Harris and Wood brought the check to him for his indorsement, and he found that it was indorsed to him as trustee, he did not indorse it back to Wood instead of indorsing it in blank; ór why, when the League gave him the check in payment of his fees, he did not require or even request it to indorse the check, especially in view of the fact that the check was first indorsed to him as trustee. The respondent, in Ms reply brief, admits that the receipt he gave Wood on September 8, on its face, created a trust. The check and the receipt, especially in view, of the fact that the respondent is a lawyer, are silent but powerful witnesses to the actual transaction that took place in the respondent’s office in September, 1925.

Respondent called certain witnesses who testified to alleged statements made to them by the deceased. Bach testified to an alleged conversation with the deceased when no third person was present. The judge of the probate court and the jury in the circuit court refused to believe this evidence, and the judge of the circuit court, by his action in entering judgment on the verdict, approved the finding of the jury in that regard. When the evidence of these witnesses is tested in the light of certain established facts in the case, it seems clear to us that no weight can be given to it. We shall not attempt to give, in detail, the reasons that have forced us to this conclusion. We will, however, briefly refer to certain parts of this evidence.

Frank Heinrich, a client of the respondent for 8 or 10 years, testified that in October, 1925, he was in the office of the respondent and heard the deceased say to respondent: “Here is $25. I want you to give me a check for Mrs. Wood, I sold my certificate—Board of Trade certificate—but she don’t know anything about it.” This evidence was intended to avoid, in part, the effect of the testimony of Mrs. Wood, that from October, 1925, until March, 1926, when her husband died, she received every month the personal check of the respondent for $25. The proof shows beyond question that the respondent knew on September 8 that the deceased had sold his certificate. In fact, the check of that date bears upon its face the words “a/c Membership.” The witness further testified that after he and Wood had left the office of respondent, Wood stated that “the Board of Trade had a couple of fellows and they took money out and cashed his check.” Then the witness stated that the deceased said that “the Anti-Vice League cashed it. ” The witnéss further testified that the deceased also said that “nobody owed him any money.” The witness Arthur Jankey admitted that he had not worked for six years save that he had been “working on a song for six years. ” This"witness testified he first met Wood in February, 1926, and that the second time that he met him (date not mentioned) was in the lobby of the Morrison hotel, where Wood asked him to go on an errand for him, and gave him an envelope in which were inclosed three checks, aggregat-. ing $70, and told him to deliver the envelope to the respondent and to receive from the latter a check in return, and to bring it back to him; that the witness took the envelope and delivered it to the respondent and that the latter wrote out a check for $70, which the witness looked at and then put in an envelope and then went back to the Morrison hotel lobby and delivered the envelope to Mr. Wood. On cross-examination the witness testified that Wood “pulled the envelope out of his pocket and put these checks in one envelope” and “sealed it up” and gave it to the witness. The Morrison hotel is located about two blocks from the office of the respondent. Arthur L. Peticólas testified that he was a “free lance writer” and that in the fall of 1926 the respondent asked him to do some work for the League, and the witness was then put to work sending out literature for the League, and in December, 1926, the respondent asked him what he knew about Wood’s affairs and he then told the ■respondent for the first time of certain conversations that he had with Wood. The principal point in the evidence of the witness was that in December, 1925, he met Wood outside of the Capitol building, located at State and Randolph streets, and that Wood asked him to wait for him there and that Wood then left and was gone about ten minutes and when he returned, and while they were still on the street, Wood pulled out of his pocket a roll of bills large enough to “choke a horse,” and the witness asked him: “When did you get it, just now?” and that Wood answered, “Never mind I got it.” The respondent also relies, in support of his theory of fact, upon respondent’s Exhibit 1, which purports to be an acknowledgment by the League of an indebtedness to Wood, and which the respondent stated he received from Mrs. Wood after the death of her husband. Mrs. Wood testified that after the' death of her husband she found “a contract” and that she handed it to respondent and at the same time told him that she had found it in her husband’s pocket; that the respondent took the paper, “looked at it queerly,” and then said: “You got to leave it here or you wouldn’t be able to get any money”; that thereafter she went to the respondent and asked him to return to her the paper she had left with him and that he said: “What paper? I said, the paper I give you. He turned around and opened his draw of his desk and handed me something like that,” indicating respondent’s Exhibit 1. The witness stated positively that respondent’s Exhibit 1 was not the paper she left with respondent, and that she refused to accept the same from him and demanded the paper she had left with him, and that he became angry and she left his office, and never returned there, and that she at once secured-other counsel to represent the interests of the estate. Respondent’s Exhibit 1 purports to be signed by Harris and Wood as officers of the League, but the respondent failed to call any person connected with the League to testify as to the instrument in question, nor were any records of the League produced in connection with the exhibit. The respondent apparently introduced respondent’s Exhibit 1 in support of his testimony that on September 8 Harris and Wood came to him and asked him for something that “they could use, that he could show to fix his creditors.” In our opinion, the jury were justified in believing that respondent’s Exhibit 1 was not the paper handed to respondent by Mrs. Wood. After a painstaking examination of all the evidence in the case, we are satisfied that the contention of the respondent that the great weight of the evidence preponderates in his favor is without the slightest merit. We are entirely in accord with the findings of the judge of the probate court and the jury in the circuit court in the matter of the evidence.

While the respondent was testifying in his own behalf the following occurred: “Mr. Adams (counsel for respondent): And for what did Mr. Harris give you that check? A. In settlement for a sum due me from the Anti-Vice League. Mr. Hartigan (counsel for petitioner): I object. The Court: Sustained. Mr. Adams: I think we ought to show that. The Court: I agree with you, but he wouldn’t testify at all if I was trying the case. You have a right to show it with competent evidence. Wood, would know too, if he was here to testify, but the law says he cannot say it because Wood cannot say it. Mr. Adams: He knows whether he got that check from Mr. Harris or not. The Court: He cannot tell it because Wood cannot, that is the objection he is making.” The respondent contends that the court committed reversible error in stating that the respondent “wouldn’t testify at all if I was trying the case. ” It is a sufficient answer to the present contention to say that the respondent made no objection to the statement. The trial court was, of course, correct in ruling that the respondent was not a competent witness to testify, in his own behalf, as to the alleged transaction of the respondent with the League. We may add, however, that because of the failure of the counsel for the estate to interpose proper objections the respondent was allowed to testify to the alleged transactions between the League and Wood and between the League and himself. Had the counsel for the estate seen fit to object, the respondent would have been unable to make out a prima facie case as to the alleged transactions between the deceased and the League.

Respondent contends that “a wife cannot testify for or against her husband, dead or alive.” We find it rather difficult to follow the argument of the counsel in reference to this contention. Mrs. Wood was placed on the stand for the purpose of testifying as to conversations she had with the respondent after the death of her husband. She was competent, of course, to give such testimony. In fact, the respondent made no objection as to her competency. During the examination of Mrs. Wood, while she was testifying as to a conversation she had with the respondent, the court asked her if she told the respondent what money he had, to which the witness answered: “Mr. Wood told me he had money.” Counsel for the respondent moved to strike the answer but the court apparently did not pass upon the motion and the respondent now contends that it was prejudicial error to allow the answer to stand. The answer of the witness was not responsive to the question and if the counsel for the respondent had seen fit to call the attention of the court to the nature of the answer it would doubtless have been stricken, as the court ruled on several occasions that such evidence was incompetent. The respondent did not see fit to call the attention of the court to the nature of the answer or to insist upon a ruling, and he is therefore in no position to fairly raise the present contention. The respondent also contends that the court erred in examining Mrs. Wood at too great length. Respondent made no objection to the court’s examination and we do not think that the examination indicated that the court had any opinions respecting the merits of the case. The Supreme Court has held that it is within the province of a court to “propound pertinent and properly-framed questions to a witness to clear up the record when it appears that such questions will' not be asked by counsel,” and we are satisfied from the record that it was necessary for the trial court to ask questions in the present case.

The respondent contends that the court erred in permitting the witness Pinsonnault to testify to alleged conversations he had with the respondent1 over the telephone, for the reason that the witness admitted that he did not know Tyler and therefore could not recognize his voice. There is no merit in this contention. The mere fact that Pinsonnault did not know the respondent and could not identify the voice did not make the evidence inadmissible. (Godair v. Ham Nat. Bank, 225 Ill. 572, 575.) Pinsonnault worked for Hursen, an undertaker, and the respondent admits that he recommended Hursen to Mrs. Wood after the death of Wood. Mrs. Wood testified that she told the respondent that he had money belonging to her husband and insisted that he should pay the undertaker’s bill, and that he promised several times that he would attend to it. Pinsonnault testified that he found the telephone number of the office of the respondent in the telephone book and called that number on the telephone and the man who answered the telephone call stated that he was not Mr. Tyler but that Mr. Tyler was there and that he would call him; that another man came at once to the telephone and that the witness asked him if he was Mr. Tyler and he responded that he was, and that the witness then stated: “Mrs. Wood was here to make arrangements for the burial of her husband,” and that the respondent said that he had funds belonging to Mr. Wood and requested the witness to keep the cost of the funeral within a reasonable amount. The witness further testified that he told the respondent the amount that the funeral bill would be, and that the respondent said that the amount was perfectly all right and to make out the bill and to mail it to him. The respondent, in the trial in the circuit court, testified that he did not talk with Pinsonnault oyer the telephone and that no one in his office, to his knowledge, talked with him, but it appears that in the probate court he admitted that Harris talked with Pinsonnault. The weight to be given the alleged conversation was for the jury to determine. (Godair v. Ham Nat. Bank, supra, 575.)

The respondent contends that “if the court refuses to give proper instructions to cover a vital or material issue in the cause, a reversible error is thereby committed,” and “a party to the suit has a right to an instruction presenting the law applicable to his theory of the case.” We find authorities cited in support of the legal principles stated, but no instruction is set out in the brief, nor are we referred to any instruction, even by number, to which the above contentions were intended to apply, nor is there any argument advanced in support of them. It is not our duty to search the record to see if the court erred in the giving or refusing of instructions. “Instructions of which complaint is made should be set out in full, followed by definite and clear reasons supporting the alleged errors incident thereto.” (General Platers Supply Co. v. Charles F. L’Hommedieu & Sons Co., 228 Ill. App. 201, 206; Spencer v. Chicago S N. W. Ry. Co., 249 Ill. App. 463, 473; Roy Iverson Co. v. United States Lloyds, Inc., 251 Ill. App. 150, 155.)

At the outset of the trial the counsel for the respective parties agreed that the following forms of verdict should be submitted to the jury: (1) “We the jury find the respondent, William Y. Tyler, has not in his possession the sum of $4,374.53, belonging to the Estate of Frank F. Wood, deceased.” (2) “We the jury find the respondent, William V. Tyler, has in his possession the sum of $4,374.53, belonging to the Estate of Frank F. Wood, deceased.” The respondent contends that the first judgment entered by the court contained findings not warranted by the verdict. It is sufficient to say in response to this contention that we are concerned only with the judgment that was finally entered by the court. The respondent further contends that the final judgment is in the style of a decree in chancery and contains findings not warranted by the verdict. Equitable rules apply to proceedings under section 81 of the chapter concerning administration of estates, Cahill’s St. ch. 3, ¶82, and while some of the findings in the order were probably unnecessary, nevertheless, we fail to see how the respondent is injured thereby.

The final contention of the respondent, and the one argued most strenuously in the reply brief, is, that even if the theory of fact of the petitioner is to be believed, the receipt given by the respondent to Wood, on September 8,1925, created a trust, and it was necessary for the petitioner “to prove the precise elements of the alleged trust and Tyler’s delinquency thereunder,” and the argument of the respondent is, that the words “for settlement of outstanding troubles,” in the receipt, mean that Tyler was given this money to pay Wood’s debts and that the evidence shows that Wood owed about $11,000 to his creditors, and that it was incumbent upon the petitioner to show that Tyler did not use the money in carrying out the trust. It is a sufficient answer to this contention to say that the respondent admitted that he did not use any of the moneys for the purposes suggested. On the contrary, his theory of fact was, that he received the check from the Anti-Vice League in payment of fees for services he rendered to the League; that the proceeds of the check were his and that therefore he did not have to account to the estate.

As we read and understand the record, the respondent, an attorney at law, betrayed his trust and attempted to withhold moneys belonging to the estate of his friend and client, and in support of his attempt he did not hesitate to present false testimony in two courts of justice. The judgment of the circuit court of Cook county is a just one and it should be and it is affirmed.

Affirmed.

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


author: Mr. Presiding Justice Barry

text:
    The People of the State of Illinois, Defendant in Error, v. Theodore Kahn et al., Plaintiffs in Error.

      Opinion filed February 12, 1930.
    Jesse Black, Jr. and June C. Smith, for plaintiffs in error.
    Ward P. Holt, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

It is insisted that the indictment is unintelligible. The indictment is based on Cahill’s Illinois Statutes, ch. 38, ¶ 116 which provides: “If any two or more persons conspire or agree together, . . . or to commit any felony, they shall be deemed guilty of a conspiracy,” etc. The words “wrongfully and wickedly” found in that portion of the statute omitted from the above quotation have no application to a conspiracy to commit felony. The indictment consists of two counts and there was a general verdict of guilty. If there is one good count it will support the verdict; People v. Lloyd, 304 Ill. 23.

For that reason we will only consider the second count of the indictment. That count is not framed on the theory that there was a conspiracy to burglarize the building of any particular individual or corporation. The charge made is that a large number of individuals and corporations were engaged in buying, storing and selling beef hides, calf hides and horse hides in Marion county, Illinois, and elsewhere in the State; that, at and within the said county of Marion, Boss Henry and Frank Edwards and plaintiffs in error conspired and agreed together with the intent to feloniously and burglariously break and enter the buildings in which such hides might be found and to steal, take and carry them away and convert them to their own use; that in the execution of said agreement the said parties did feloniously and burglariously break and enter a certain building of Robert Merz and did steal, take and carry away 16 beef hides and three calf hides, all of the value of $178; that in furtherance of said conspiracy said Robert Henry and Frank Edwards burglarized a building of the Centraba Packing Company in Marion county, Illinois, and did steal and carry away therefrom 52 beef hides, 12 calf hides and one horse hide, all of the value of $451; that all of the hides aforesaid were received by plaintiffs in error who aided in concealing the same, etc.

While the second count contains much surplusage, yet the gist of it is as above stated. Surplusage does not vitiate. It is proper, in an indictment, to charge that a conspiracy was entered into against a designated class of persons or corporations; Lowell v. People, 229 Ill. 227; People v. Quesse, 310 Ill. 467; People v. Walsh, 322 Ill. 195-207.

It will be observed that the indictment does not charge that the parties entered into a conspiracy especially to burglarize the buildings of Robert Merz or the Centraba Packing Company. It may be that at the time of the formation of the conspiracy the conspirators did not have those buildings particularly in mind. If the indictment had averred that the conspiracy was to burglarize those particular buildings the proof would have to show that the parties had those buildings in mind at the time the conspiracy was entered into or the proof would fail to support the, indictment; Lowell v. People, supra.

It is contended that the count is bad for duplicity; that it is fatal to allege in any one count a conspiracy to commit a number of different specific felonies against the property of different individuals or corporations. We do not think the count is subject to that criticism. It charges a conspiracy to commit burglaries against a designated class of individuals and corporations". An indictment alleging a conspiracy to burglarize more than one house is not bad for duplicity; 5 R C. L. 1086.

Proof that one of the defendants had agreed to buy all the automobiles his codefendants and two other men could deliver to him, having been told by them that it was easy to steal automobiles if they had someone to receive them, is sufficient to show a conspiracy to steal automobiles, and the time and place of the thefts and the persons who committed them are not material matters; People v. Bond, 291 Ill. 74.

In an indictment for a conspiracy to commit a felony, it is necessary only to designate the felony by such description as will apprise the defendants of the exact charge upon which they will be tried, and it is not required that the felony be described with the same accuracy as is required in an indictment for the felony itself. It is not necessary that the language of the indictment be grammatically exact if the offense with which the defendants are charged is stated plainly enough to be readily understood by the jury and to enable the defendants to properly prepare their defense; People v. Lloyd, 304 Ill. 23.

The second count of the indictment clearly charges plaintiffs in error, Boss Henry and Frank Edwards with having entered into a conspiracy to commit burglary. The essence of the offense of conspiracy is the unlawful combination or agreement to accomplish the criminal or unlawful purpose, and the conspiracy is complete when the agreement to do the thing forbidden by law has been made; People v. Lloyd, supra.

It is insisted that the court erred in overruling a motion to quash the search warrant and to suppress the evidence obtained in the execution of the warrant. The property was described in the complaint as “about twenty beef hides and about twelve calf hides and one horse hide.” It is insisted that this description was wholly insufficient to warrant the issuance of the search warrant. A complaint for a search warrant which described the property as “three cases of misses’ and women’s boots, . . . a lot of oak tanned soles, . . . and ten sides of sole leather,” was held to be a sufficient description; Dwinnels v. Boynton, 85 Mass. 310. An indictment for larceny must describe the property stolen with reasonable accuracy. It seems to us that it is just as important in a charge of that kind, that the property should be accurately described, as in a complaint for a search warrant. It has been held by our Supreme Court that an indictment for larceny which described the property stolen as “one cape, of the value” etc., was sufficient, Waller v. People, 175 Ill. 221. An indictment charging the theft of a hide has been held to be sufficient without alleging the name of the animal from which it was taken; 36 C. J. 824.

Counsel do not offer any suggestion as to,what would be a more appropriate description of the hides in question. In the very nature of the property any description thereof must necessarily be rather general. If technical accuracy is required where such property is involved it would simply mean that no search warrant could properly issue. We are satisfied that the description stated in the complaint is sufficient to meet the requirements of the law. There is some evidence tending to show that plaintiffs in error consented to the search and seizure of the hides, but we will not extend this opinion further.

Counsel concede that if the court properly overruled their motion to quash the indictment and their motion to quash the search warrant and the evidence procured thereunder, that the verdict is supported by the evidence. No reversible error having been pointed out, the judgment is affirmed.

Affirmed.


text:
    Charles Ahrens, Appellee, v. Frank Bihss et al., Appellants.
    Opinion filed February 12, 1930.
    Felsen & Kane, for appellants.

      McHale & McHale and Dan McGlynn, Jr., for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee recovered a judgment in debt for $1,200 and damages $988 in an action on a replevin bond executed by appellants. On March 31, 1928, Frank Bihss filed an affidavit for the replevin of 25 hogs from Lee Horn. In that affidavit he stated that the hogs were of the value of $600. The trial of the replevin suit resulted in a verdict and judgment in favor of Horn. The hogs were never returned and this suit was brought upon the replevin bond.

Upon the trial of this case appellee proved that the hogs weighed about 200 pounds each at the time they were taken under the replevin writ and that they would, in the usual course, weigh 400 pounds each on December 13, 1928, which was the date of the conclusion of the replevin suit; that on the last mentioned date such hogs were worth $7.60 per hundred pounds. The evidence was received over the objection of appel lants and they contend that it was error. The court was clearly in error in admitting this evidence. In legal effect the hogs were converted at the time they were taken from Horn under the writ of replevin. We are satisfied that the proper measure of damages was the value of the hogs at the time they were taken, with interest at the rate of 5 per cent per annum from the date they were taken under the writ until the trial of the case upon the replevin bond; Sturges v. Keith, 57 III. 451.

Appellee offered in evidence the affidavit filed by Bihss for the writ of replevin in which he stated that the hogs were of the value of $600. That was at least prima facie evidence of the value of the hogs, and no evidence having been offered to the contrary, it became conclusive; Martin v. Hertz, 224 Ill. 84. Appellants offered no evidence. Appellee proved, without objection, that the reasonable attorney’s fee for the trial of the replevin suit was $250. No complaint is made in this court as to the amount of the attorney’s fee. The sheriff’s return shows that the hogs were taken from Horn on April 2, 1928, and delivered to Bihss. In the state of the proof appellee was entitled to recover $600 with interest at the rate of 5 per cent per annum from April 2, 1928 until June 4, 1929, the date of the trial in the present suit. That amounts to $635.17, to which should be added the attorney’s fee of $250, making a total of $885.17. That amount is $105.83 less than the damages allowed in the trial court. If appellee will file a remittitur of $102.83 within 15 days from the date of the filing of this opinion, the judgment will be affirmed, and in that event appellee will pay the costs in this court and appellants will pay the costs in the trial court. If the remittitur is not filed then the judgment will be reversed and the cause remanded at the costs of appellee.

Affirmed on filing a remittitur; otherwise reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. John Knash, Plaintiff in Error.

      Opinion filed February 12, 1930.
    J. E. Carr, for plaintiff in error.
    Marion M. Hart, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Plaintiff in error was conducting a grocery and meat market at the northwest corner of North Jefferson and East 5th Streets in West Frankfort. The store faces east on Jefferson Street, 5th Street being on the south side of the building. The building faces to the east, aild the west end is used as the residence of plaintiff in error and his wife. There is a door on the south side of that part of the building used as a grocery and meat market, through which one may pass into the residence portion of the building. On January 11, 1929, the west end of the building was the residence of plaintiff in error and his wife and they had two male boarders.

On the date aforesaid two officers went to the south door and entered the meat market and then passed into the residence portion of the building. They had a search warrant and when they entered plaintiff in error was in the meat market waiting on customers. The officers went into the residence portion of the building and found the two boarders and a friend, and the friend had a small glass in his hand and a milk bottle had been knocked over on the floor and there was about a teaspoonful of white mule whisky in it. No other intoxicating liquor was found. At the time in question neither plaintiff in error nor his wife were in the residence portion of the building. Plaintiff in error testified that he had not been in there for a half hour or more and did not know anyone had liquor there. He also says that the liquor found was not his.

The People argue that when the officers went to the side door they found it locked and that they heard plaintiff in error say something in a foreign language which they did not understand; that this was a signal to the three men in the residence portion of the building to destroy the liquor; that the door was not opened until after the bottle was knocked over and the contents spilled on the floor. We find no evidence in the. record to the effect that the door was locked. Plaintiff in error testified that ,when he saw the two men at the south door he did not recognize them but thought they were Lithuanians and that the remark he made was that they should go to the front door. No witness pretends to say that this was not what he said. In the state of the proof we think it cannot be fairly said that the evidence shows beyond a reasonable doubt that the milk bottle in question and the contents thereof were in the possession of plaintiff in error or in his care or under his control. There is no evidence even tending to show that he had anything to do with it, nor is there anything to show that it was there with his knowledge and consent. It is more reasonable to suppose that the liquor was the property of the two boarders or that it was brought there by their friend. The mere fact that plaintiff in error occupied the premises is not sufficient to establish his guilt. The judgment is reversed.

Reversed.


text:
    Alice Williams, Appellee, v. Leonard T. Stearns, Appellant.

      Opinion filed February 12, 1930.
    Hosea V. Ferrell and Ed. M. Speller, for appellant; John Hay, of counsel.
    D. L. Duty and Geo. T. Carter, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee recovered a verdict and judgment for $1,400 for personal injuries sustained by her when struck by appellant’s car. The first count of the declaration charged general negligence in the operation of the car, and the second a failure to sound the horn or give any other signal of the approach of the car to the crossing in question. Each count averred that appellant provided the car for the use and pleasure of Ms family and that at the time in question it was driven by appellant’s wife as his agent. Appellant filed the general issue and two special pleas in wMch he averred that his wife was not operating the car as his agent, etc.

On the evening of February 19, 1923, appellee, while on her way to church, was going south on the west side of Buchanan Street in the City of Marion and reached the intersection of that street with Thorn Street at about 7 p. m. She waited at the curb while a car turned from Buchanan Street to the west on Thorn Street. She says that after that car passed she looked to the west and saw no car coming from that direction and then started across the street, and when almost across was struck by appellant’s car coming from the west on Thorn Street. Appellant’s wife was alone in the car, driving with dim lights, and did not see appellee until she was struck. No horn was sounded or other warning of the approach of the car was given. There is evidence tending to show that the car was going 20 miles an hour and that when appellee started across the • street the car was 85 feet west of the intersection. The pavement on Thorn Street is 14 feet wide. That street is the third one south of, and Buchanan Street is the second street east of the public square. While the declaration avers that the place in question was in the closely built-up residence section of the city, no evidence was offered in support thereof.

Appellant insists that under our decision in Meyer v. Howlett, 233 Ill. App. 475, he cannot be held liable for the negligence of his wife. At the time, that case was decided, our Supreme Court, in a four to three opinion, had declined to recognize the family purpose doctrine and held that liability of the owner of a car rested upon the relation of master and servant, and that such relation was not established by the mere fact that the purpose for which the father purchased the machine was the pleasure of the family; Arkin v. Page, 287 Ill. 420. That case ha dbeen distinguished in Graham v. Page, 300 Ill. 40, where the court held that a father was liable for the- negligence of his daughter because, at the time of the accident, she was performing the business and duty of the father in the manner and with the means authorized by him. It did not recognize the family purpose doctrine. In that state of the law we held in Meyer v. Howlett, supra, that the husband was not liable for the negligence of his wife where she was driving the car for her own pleasure ; that proof that her husband purchased the ear for the pleasure of the family and permitted her to. use if for her own pleasure was not sufficient to show that she was his agent or servant. While that case was decided in accordance with what we then understood to be the law as .announced by our Supreme Court, yet it is out of harmony with the law at the present time.

We held, in Toms v. Ketterer, 237 Ill. App. 135, that if a parent provides a car for the pleasure of the family and permits his son to use it for his own pleasure, the son is the agent or servant of the parent and the latter is liable for the son’s negligence. Shortly thereafter the Supreme Court reached the same conclusion in Gates v. Mader, 316 Ill. 313, and denied certiorari in the Toms case, supra. In Richardson v. Moore, 254 Ill. App. 511, we held that a wife driving guests to their home at the request of her husband in a car owned jointly by herself and husband, was an agent or servant of her husband in' so doing and they were jointly liable for her negligence. A master and servant were held jointly liable for the negligence of the servant in Barran v. Adanick, 251 Ill. App. 481.

In the case at bar appellant provided a car for the pleasure of his family and his wife was at liberty to use it for her own pleasure whenever she so desired. That being true she was the agent or servant of appellant while driving for her own pleasure, even though her husband was not with her. If appellee was in the exercise of ordinary care for her own safety at and immediately prior to the collision and was injured by reason of the negligence of appellant’s wife, appellant would be liable therefor. As the judgment must be reversed we express no opinion on the merits of the case.

In the state of the proof the questions of negligence and contributory negligence were questions of fact for the jury and the court did not err in refusing to direct a verdict; Coppock v. Schlatter, 193 Ill. App. 255. Section 40 of the Motor Vehicles Act, Cahill’s St. ch. 95a, ¶ 41, provides that upon approaching a person walking upon a public highway, the operator of a motor vehicle shall give reasonable warning of his approach and use every reasonable precaution to avoid injuring such person. In the Coppock case, supra, that statute was applied where the plaintiff was crossing at a street intersection. The court did not err in admitting evidence that the driver of the car failed to sound the horn.

The court permitted an optometrist to testify that some time after her injury appellee had a cataract in her left eye, although he could not say whether it was of a traumatic or senile character. The court erred in admitting this testimony.

It is argued that the court erred in giving 8 of the 12 instructions given on behalf of appellee. The first instruction informed the jury, that no person should drive a motor'vehicle upon a public highway or street at a speed greater than is reasonable and proper having regard to the traffic and the use of the way or so as to endanger the life or limb or injure the property of any person; that in determining what is a speed that is reasonable and proper having regard to the traffic and the use of the way, they should consider all the facts and circumstances in evidence bearing upon that question (specifying a number of things) and closing as follows: “and any other fact or facts which would bear upon that question. ’ ’ There was no evidence as to some of the things which the instruction assumed and which the jury were to take into consideration. Then the instruction closed with the statement that the jury should consider any other fact or facts which would bear upon that question even though they did not appear from the evidence.

The fourth instruction informed the jury that the questions involved in this case as alleged in the declaration, of negligence on the part of the defendant, if any, and the exercise of reasonable care on the part of the plaintiff, if any, were questions of fact for the jury to determine under the evidence and the law as given in the instructions. This instruction should not have been given. The fifth instruction defined negligence and then advised the jury that taking the legal definition of negligence they were to. find from all the evidence in the case whethet appellant had committed negligence in manner and form as charged in the plaintiff’s declaration, etc. The sixth instruction told the jury that if they believed from the greater weight of all the evidence that the plaintiff has proven the carelessness and negligence charged in any one or more of the counts in the declaration, etc. Instructions should not refer the jury to the declaration to ascertain what the charges are. It is not proper for the declaration to go to the jury and such instruction should not be given; Bernier v. Illinois Cent. R. Co., 296 Ill. 464.

The eighth instruction advised the jury that it is not alone the testimony of a greater number of witnesses in any case that goes to make up the preponderance or greater weight of the evidence, and that the testimony of one witness may outweigh that of many others, etc. It goes on to say that if the testimony of the witnesses for the plaintiff more firmly brings conviction to your minds of the truth of the things about which they have testified than those testifying for the defendant, then and under such circumstances you may lawfully conclude that the greater weight of the evidence is on the side of the plaintiff, and form your verdict accordingly. This instruction should not have been given. Under it if some of the plaintiff’s witnesses testified to immaterial matters and such testimony brought conviction to the minds of the jury of the truth of such matters, then the jury might lawfully conclude that the greater weight of the evidence was on the side of the plaintiff. An instruction of this kind should not be given; City of Chicago v. Van Schaack Bros. Chemical Works, 330 Ill. 264-278.

The tenth instruction, in so far as the question of reasonable care on the part of appellee, is as follows: “And if you further find and believe from the greater weight of all the evidence that the plaintiff, Alice Williams, while attempting to cross or pass over said street intersection on foot or by walking in the exercise of reasonable care and caution for her own safety, was struck, etc.” The instruction should require the jury to find from the evidence that the plaintiff at and immediately prior to the collision was in the exercise of reasonable care for her own safety. The instruction is defective in this regard. The eleventh instruction is an abstract proposition of law and it informed the jury that the owner of a car kept for family purposes is liable for the negligence of any member of the family even though the car is operated without the owner’s permission. This carries the family purpose doctrine too far as will appear from Gates v. Mader, 316 Ill. 313, where the court distinguishes Arkin v. Page, 287 Ill. 420, and recognizes the latter case as good law where the son took the car without the father’s knowledge or consent. The eleventh instruction concludes with the statement that in the event of injuries sustained by another due-to the negligent operation of such vehicle, then the owner thereof becomes liable, whether such vehicle, at the time of such negligent operation was operated by the owner himself or any member of his family. This leaves out the question of due care on the part of the plaintiff. The twelfth instruction informed -the jury that an automobile driver while upon the street is required to keep the car under reasonable control, and to look out for and observe pedestrians crossing the street, etc. The duty of the driver is to exercise reasonable care and caution. This instruction required the driver to look out for and observe, that is, to see pedestrians. This instruction is also an abstract proposition of law.

As the case will have to be tried again we would suggest that in a case of this kind counsel on either side should reduce the number of instructions presented, avoid abstract propositions of law, avoid repetitions of the same proposition and present instructions in such a way as to direct the jury’s attention to the questions to be determined without referring them to the declaration to find out what they are. to decide. It is not the purpose of instructions to argue the case for either side. Cases may be argued orally but the instructions should not take the form of argument. While no objection has been urged to appellee’s second and third given instructions, yet we think that they are clearly erroneous and should not be given upon another trial. The second instruction tells the jury that the plaintiff is only required to prove the material allegations in her declaration, etc., and that if the evidence preponderates in her favor, however slight, that is all the law requires and is sufficient upon which to base a verdict for the plaintiff. This instruction leaves it to the jury to say what are the material allegations of the declaration and is improper in that regard; Laughlin v. Hopkinson, 292 Ill. 80. It also tells them that if the evidence preponderates slightly in favor of the plaintiff that is sufficient. Such an instruction should not be given; Molloy v. Chicago Rapid Transit Co., 335 Ill. 164; Reivitz v. Chicago Rapid Transit Co., 327 Ill. 207-210. The instruction does not inform the jury as to what the plaintiff must prove before she is entitled to recover. The third instruction is another abstract proposition of law and omits any reference to the care required of the party who may be injured and closes with the words: “when and where such act or omission to act is unlawful.” The jury might very well assume from this language that the court was of the opinion that appellant had committed an unlawful act.

15 instructions were given on behalf of appellant. 7 of them informed the jury as to the care and caution required of appellee. The court should not give so many instructions upon the same proposition. 7 of the instructions close by telling the jury that in such case they should find the defendant not guilty, or words to that effect. The giving of so many instructions in that form and repeatedly instructing the jury on the same proposition of law, has been held to be prejudicial error; Wood v. Illinois Cent. R. Co., 185 Ill. App. 180; Cohen v. Weinstein, 231 Ill. App. 84; Daubach v. Drake Hotel Co., 243 Ill. App. 298; R. A. Watson Orchards, Inc. v. New York, C. & St. L. R. Co., 250 Ill. App. 22-52.

Appellant’s fifteenth instruction informed the jury that if appellee was guilty of negligence which contributed to her injury, they should find the defendant not guilty. His twentieth given instruction informed the jury that if appellee was guilty of any negligence, however slight, that contributed to cause the collision and injury, they should find the defendant not guilty. Both of these instructions were erroneous and should not have been given. Contributory negligence that will bar a recovery must be a proximate cause of the injury; Miller v. Burch, 254 Ill. App. 387; Flynn v. Chicago City Ry. Co., 250 Ill. 460; Lerette v. Director General, 306 Ill. 348.

Appellant’s sixteenth and eighteenth instructions should not have been given. His instruction marked 18-A should not have been given; Cohen v. Weinstein, 231 Ill. App. 84-101. Appellant’s twenty-first instruction should have been refused; Thiele v. Hetzel, 184 Ill. App. 633. The judgment is reversed and the cause remanded.

Beversed and remanded.


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    Louis Berthold, Appellee, v. George Henderson, Appellant.
    Opinion filed February 12, 1930.
    Rehearing denied March 17, 1930.
    G. F. Taylor, for appellant.
    McCallen Bros. & W. S. Holmes, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

On April 1,1929, appellee recovered a judgment for $75 against appellant before a justice of the peace. On the same day appellant filed his appeal bond and the justice prepared a transcript, but the filing fee in the circuit court was not paid by appellant. The transcript was left with the clerk of the circuit court but the cause was not docketed because the filing fee had not been paid.

On June 17, 1929, counsel for appellee moved for leave to docket the cause in the circuit court and with the consent of counsel for appellant who paid the filing fee, the cause was docketed. Thereupon counsel for appellee moved the court to dismiss the appeal and that procedendo be awarded. That motion was allowed and appellant excepted. Prior to the allowance of the motion appellant, by leave of court, filed certain affidavits attempting to show that the parties had agreed upon a settlement of the cause. Counter affidavits were filed by appellee.

Cahill’s Illinois Statutes, ch. 79, ¶ 116, required appellant to pay the filing fee within 20 days from the date of the rendition of the judgment by the justice of the peace. The judgment was rendered April 1, 1929 and the fee was not paid until June 17,1929. The fact that there was talk about a settlement, and even though a settlement had been made, that would not change the law which required the payment of the filing fee within 20 days from the date of the judgment. The court did not err in dismissing the appeal with procedendo and the judgment will be affirmed.

Affirmed.


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    Carrie Cook Horix, Appellee, v. Carl Horix, Appellant.
    Opinion filed February 12, 1930.
    Rehearing denied March 17, 1930.
    Kramer, Kramer & Campbell and Wetten, Pegler & Dale, for appellant.
    C. A. Houts and D. E. Keefe, for appellee; Keefe, Bandy & Listeman, of counsel.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

On October 1,1928, appellee filed her bill for divorce in which she averred that she was then an actual resident of St. Clair county, Illinois. When she testified on the hearing she said she was then living at the Broadview Hotel in Bast St. Louis; that her attorney advised her that it would be necessary for her to be a resident of St. Clair county before she could file her suit; that she made reservations at the Broadview Hotel in the middle of September but did not get there until the first of October; that she was never at that hotel before October 1, 1928; that she came to that hotel for the purpose of securing a divorce; that when she separated from her husband they were living in Chicago and that she has not had a definite home since that time.

The manager of the Broadview Hotel testified that appellee did not register until October 9,1928, at which time she was assigned a room. There is no evidence that she was an actual resident of St. Clair county at the time she filed her bill.

Cahill’s Illinois St. ch. 40, ¶ 6, provides that divorce proceedings shall be had in the county where the complainant resides. Appellee having failed to prove that at the time of the filing of her bill she was a resident of St. Clair county, the decree granting her a divorce must be reversed.

Reversed,


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    Frank Baricevic, Appellee, v. The Peoples Life Insurance Company, Appellant.
    Opinion filed February 12, 1930.
    W. J. McDonald and T. S. Morgan, for appellant.
    McGlynn & McGtlynn, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee sued on a policy of insurance on the life of his wife. To a declaration in the usual form appellant filed the general issue and three special pleas. It averred in each of the special pleas that the insured came to her death as the result of a criminal abortion. The first charged that the abortion was procured by the insured; the second, that it was brought about by the insured and appellee; the third, that it was produced by Charles L. Moeller as a result of a conspiracy. Demurrers were sustained to the special pleas and the trial resulted in a verdict and judgment for $1,000. The only question presented for our consideration is the sufficiency of the special pleas.

Appellant does, not claim that it is relieved from liability by* reason of any provision of the insurance contract. It insists, that, in the absence of such a stipulation, it would be against public policy to allow appellee to recover under the facts averred in the special pleas. Under Cahill’s Illinois Statutes, ch. 38, ¶ 15, the procurement of an abortion is not a criminal offense unless it is done for a purpose other than to preserve the life of the mother. An indictment must negative the necessity to save the mother’s life, Beasley v. People, 89 Ill. 571; State v. DeGroat, 259 Mo. 364.

It is very evident that the procurement of an abortion, necessary to preserve the life of the mother, is not a crime and cannot be contrary to public policy. To raise the question sought to be presented appellant should have averred that the abortion was not necessary to preserve the life of the insured. There is no such averment in any of the special pleas. For that reason it is unnecessary to decide whether a recovery by appellee would be against public policy if he and the insured, or either of them, had procured an abortion that was not necessary to preserve the life of the deceased. The special pleas presented no defense to the action, and the court properly sustained demurrers thereto. The judgment is affirmed.

Affirmed.


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    Maude Kelley, Appellant, v. The First Bank & Trust Co., Appellee.
    Opinion filed February 12, 1930.

      Frank E. Trobaugh, for appellant; L. A. Cranston, of counsel.
    Nelson B. Layman, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellant sought to recover for the death of a boy under six years of age. A demurrer was sustained to the declaration and the question presented by this appeal is whether the declaration states a cause of action.

It avers, in substance, that appellee owned a vacant lot, 50 feet east and west and 175 feet north and south, near the city of DuQuoin; that the north end of said lot abutted upon a public alley, 20 feet wide, running east and west; that there was a pond on the north end of said lot which extended into said public alley; that the pond was about 30 feet in diameter, about 16 feet deep and partly filled with water; that there were a number of residences in the vicinity of the pond; that the said pond had been attractive to children of tender years and for a long time children were in the habit of playing around said pond, amusing themselves by fishing with hook and line, and on some occasions when appellant’s intestate was present, some of the children had caught fish therein by means of hook and line.

It avers that the pond had steep banks from one to three feet above the surface of the water which were unsafe for children upon or near the edge of the pond; that the facts aforesaid were well known to appellee, or could have been discovered by it by the exercise of reasonable care; that on May 1, 1928, appellant’s intestate was attracted by childish curiosity and a desire for pleasure toward the said pond and then and there went upon said vacant lot at a point four feet from the south side of said public alley and along said pond and was then and there fishing therefrom with a hook, line, and a short pole; that appellee had carelessly and negligently failed and neglected to provide any protection around or over the pond or to fill the same with dirt to prevent children from having access thereto; that appellee carelessly and negligently permitted said pond and the bank thereof to be and remain in a condition dangerous to a child approaching the bank and fishing with hook and line from the waters of the pond ; that by reason of appellee’s negligence aforesaid appellant’s deceased, while fishing from the bank of said pond, fell into the same, etc.

The question as to when a nuisance is so attractive to children of tender years so as to come within the doctrine of the “Turn-table” cases, has given the courts much trouble resulting in a contrariety of decisions. Our Supreme Court very recently said: “Without extending this opinion further by quoting from the many authorities on the subject, it is sufficient to say that the courts seem to be of one mind in holding that a canal, a pond, or other open body of water on private property, is not of itself an attractive nuisance, as that term is used in describing an instrumentality which will render the owner liable for injuries to a child attracted to and injured by it (citing cases). The case of City of Pekin v. McMahon, 154 Ill. 141, is not in conflict with these authorities. In that case this court did not hold that a pond of water was an attractive nuisance, but it held that a pond of water in which-floating logs on which children were in the habit of playing were ..permitted to remain, when maintained near a driveway in a populous city, was under the circumstances such a dangerous instrumentality attractive to children as to render the owner liable for the drowning of a child playing there; Mindeman v. Sanitary District, 317 Ill. 529.

We understand from the opinion in that case that even though children are in the habit of fishing in a pond, and that there are fish in the pond, that does not make it an attractive nuisance. A child may see other children catching fish from a pond and may see fish in the pond, and if they undertake to fish and meet with an accident there can be no recovery. But if a child sees floating* logs in a pond on which other children are playing a cause of action will arise if such child engages in the sport and loses its life.- As we understand it, such is the distinction drawn by our Supreme Court and we feel that we are bound thereby. If we are right in our conclusion the trial court did not err in sustaining* the demurrer to the declaration. The judgment is affirmed.

Affirmed.


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    Purple Swan Safety Coach Lines, Appellee, v. Egyptian Transportation Company, Appellant.

      Opinion filed February 12, 1930.
    John W. Freels, for appellant; Bopiequet & Freels, of counsel.
    McGlynn & McGlynn, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

On February 22, 1927, appellee and appellant were common carriers by bus between St. Louis, Missouri, and Addieville, Illinois. On that day appellee sold to Catherine Juenger a round trip ticket from St. Louis to Addieville. She was carried to Addieville by appellee and when she was ready to return to St. Louis appellee directed her to take appellant’s bus to St. Louis, which she did and she was carried by appellant on the ticket sold to her by appellee. Appellee had made an arrangement, or agreement with appellant whereby appellant would carry the holder of the ticket to St. Louis. On her way back to St. Louis she received an injury and owing to an accident to the bus appellant transferred her to another bus. Later she sued appellant and appellee and recovered a judgment for $1,000. Appellee paid the judgment and this suit was brought to recover from appellant the amount so paid by appellee."

It is quite evident that appellant was the agent or servant of appellee in transporting Mrs. Juenger from Addieville to St. Louis and that she was injured through the negligence of appellant on that trip. We. know of no reason why appellant should not be re- ' quired to pay for any damages caused by its negli-’-' gence. Appellant, as agent of appellee, is responsible' ; to it for all damages resulting from appellant’s negligence which appellee was compelled to pay, and the record in the former suit is competent evidence against appellant; Illinois Cent. R. Co. v. Beebe, 69 Ill. App. 363-388; Galena & C. U. R. Co. v. Welch, 24 Ill. 31; Chicago & R. I. R. Co. v. Hutchins, 34 Ill. 108; Gilson v. Collins, 66 Ill. 136.

An employee is directly liable to his employer for any damage occasioned by his negligence, whether such damage be direct to the property of the employer, or . arise from the compensation which the employer has been obliged to make to third persons for injuries sustained by them; 18 R. C. L. 502. A railroad company may act as agent for a connecting road, and where, acting as such within the scope of its authority, it makes a contract for the transportation of passengers over a connecting line, the latter will be responsible for the tort or negligence occurring on its portion of the route to the same extent as if the contract has been made by the connecting carrier itself; 5 R. C. L. 156.

Appellant contends that it and appellee were joint tortfeasors and that by reason thereof appellee is not entitled to recover. Appellee was not guilty of any negligence and was held liable in the former suit because of the fact that it had sold the ticket to Mrs. Juenger and instead of carrying her to St. Louis, it had secured appellant to do so. Under such circumstances appellant is in no position to escape liability to appellee on the ground that they were joint tortfeasors; Griffiths & Sons Co. v. National Fireproofing Co., 310 Ill. 331. No reversible error having been pointed out the judgment is affirmed.

Affirmed.