text:
    School District No. 39, Fayette County, Illinois, Appellant, v. H. F. Casey, Appellee.
    1. Officers and public employees — liability of school director withholding property of district. Where a school director purchases materials for the school district and receives in connection therewith certain tickets which the merchant is distributing to each customer in proportion to the amount of his purchase, such tickets being for a drawing for a prize, and one of the tickets so received by the school director wins and he retains the prize, the school district may, by reason of the fact that the director, in making the purchase, was acting as its agent, and also by reason of the statutory prohibition against the director being interested in contracts of his board (Callaghan’s 111. St. Ann. eh. 122, 1Í 379), recover of the director the value of the prize.
    2. Agency — when agent cannot question principal’s title. An agent who has received money or property belonging to his principal will not be heard to say that the principal received it in an illegal transaction or as the fruits of an illegal contract.
    Appeal by plaintiff from the County Court of Fayette county; the Hon. C. E. Torrence, Judge, presiding. Heard in this court at the October term, 1926.
    Eeversed and judgment entered here.
    Opinion filed February 19, 1927.
    Albert, Webb & Albert, for appellant.
    Arthur Bob, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

This case was tried by the court, without a' jury, upon a stipulation of facts. With a view to the stimulation of trade, the merchants of Bamsey, Illinois, purchased a Ford touring car and advertised that it would he' given away to the one holding the lucky number. Each merchant was furnished with numbered tickets, one of which was delivered to each purchaser with every 50 cents worth of goods purchased. Appellee was a school director of the appellant district and purchased $22 worth of materials for the district for the repair of its schoolhouse. With the materials so purchased 44 tickets were delivered to him and appellant paid the purchase price. At the drawing one of the 44 tickets so received by appellee bore the lucky number and the car was delivered to him. He insisted that it was his property and refused to deliver it upon demand made by appellant. It was stipulated that at the time of said demand the car was of the value of $235. The court found the issues in favor of appellee and rendered judgment accordingly.

It is evident that the materials and the 44 tickets were purchased for one undivided price and were paid for by appellant. Davenport v. City of Ottawa, 54 Kan. 711, 39 Pac. 708; State v. Mumford, 73 Mo. 647. It is a criminal offense for a director to be interested, directly or indirectly, in a contract made by the board of which he is a member. Callaghan’s Ill. St. Ann. ch. 122, U 379. If the money of the district is paid to a director under a contract in which he is interested he may be sued and compelled to refund the same. School Directors v. Parks, 85 Ill. 338.

In the purchase of the materials and the tickets appellee was the agent of appellant. It is an elementary rule in the law of agency that the agent shall not be heard to deny the title of his principal. If the agent has received money or property belonging to his principal, he will not be heard to say that the principal received the money in an illegal transaction, or that the contract of agency was illegal or that the principal engaged in business illegally. 21 R. C. L. 831. Where money or property has been actually paid or delivered to an agent for his principal, it is usually held that the latter may recover such money or property from the agent, although it was received by the agent as the fruits of an illegal contract or transaction. The fact that the contract or transaction between the principal and the third person, in pursuance of which the funds or property were delivered to the agent, was illegal and unenforceable does not affect the liability of the agent to account therefor to his principal. Wilson v. Owen, 30 Mich. 474; Hertzler v. Geigley, 196 Pa. St. 419, 46 Atl. 366; 2 C. J. 746.

While the law will not enforce an illegal contract, yet if a servant or agent of another has, in the prosecution of an illegal enterprise for his master, received money or other property belonging to his master, he is bound to turn it over to him, and cannot shield himself from liability therefor upon the ground of the illegality of the original transaction. Wood on Master and Servant, If 302; Kiewert v. Rindskopf, 46 Wis. 481, 1 N. W. 163.

The courts appear to be agreed that the fact that the owner of money or property embezzled obtained it in an illegal transaction does not constitute a defense to an indictment'against an agent who • embezzles it from said owner. State v. Blakemore, 226 Mo. 560, 126 S. W. 429, 27 L. R. A. (N. S.) 415. The fact that the money embezzled was collected by an agent for his principal on a lottery ticket issued in the transaction of illegal business does not constitute a defense to an indictment against the agent. Woodward v. State, 103 Ind. 127, 2 N. E. 321.

If, under the stipulated facts, appellee might be found guilty of embezzlement, we cannot perceive any valid reason why he may not be held liable in an action of trover for the same conversion.

The purchaser of a lottery ticket became entitled to receive $2,000 and went to Chicago to get his money. He there met a Mr. Brady who told him that he was an agent of the company and that he had had his money but had spent it, and that he would pay him. Brady paid $500 and then refused to pay any more. A judgment for $1,500 against Brady was sustained. Brady v. Horvath, 167 Ill. 610. The action was in assumpsit and the court said:

“We do not think that defendant can be permitted to set up in this suit the illegality of the consideration as between the company and plaintiff. In his hands it is money which he ought not, in equity and good conscience, to be permitted to retain, (Barnes v. Johnson, 84 Ill. 95,) and we see no reason why his promise to pay it over to plaintiff was not supported by a sufficient consideration.”

In that case the plaintiff’s money came to the hands of one who was not his agent, but there was an express promise to pay it to the plaintiff. In the case at bar appellee was a director of appellant and was prohibited by statute from being interested, directly or indirectly, in any contract made in its behalf. Appellefeweceived the car by virtue of a ticket which was purchased and paid for by appellant. In equity and good conscience he is not entitled to retain it. While appellee made no promise to deliver the car to appellant, or to pay over the proceeds from the sale thereof, yet the law implies a promise that he would do so. Canfield Mfg. Co. v. Paddock, 96 Vt. 41, 116 Atl. 115; Floyd v. Patterson, 72 Tex. 202, 10 S. W. 526.

It is contrary to public policy and good morals to permit employees, agents or public servants to seize or retain the property of their principals, although it may be employed in an illegal business and under their control. No consideration of public policy can justify a lowering of the standard of moral honesty required of persons acting in such capacities. 2 0. J. 748. To permit appellee to retain the car or the proceeds thereof would be to judicially sanction his violation of an express statutory provision and the breach of his duty as an agent of appellant. This we are not disposed to do. The judgment is reversed without remanding, and the clerk of this court will enter judgment here in favor of appellant and against appellee for $235, appellee to pay the costs in this court and the court below.'

Reversed and judgment entered here.


source: Caselaw Access Project

author: Mr. Presiding Justice Barry

license: Public Domain

text:
    Robert R. Thomplson, Appellee, v. Kate Andrews, Appellant.
    1. Instruction — basis on evidence as essential. In an action to recover damages alleged to have been caused by an attack by defendant’s dog, in the absence of evidence tending to show that the dog had ever previously attacked or bitten any person, it is reversible error to give, at plaintiff’s request, an instruction that if defendant knew a dog was vicious and accustomed to bite mankind but harbored it without proper restraint, defendant was liable for damages to the plaintiff bitten without negligence on his part.
    2. Animals — inadmissibility of evidence as to previous complaints as to vieiousness. In an action to recover damages alleged to have been caused by an attack on plaintiff by defendant’s dog, evidence of members of the village board that complaints had been made to the board of the dog’s vicious character and of the president of the board that the board had taken some action as to the dog and that he had instructed the clerk to send the defendant a notice is inadmissible, in the absence of any evidence of the nature of the complaints or that the notice was sent to defendant.
    3. Instructions — basis in evidence as essential. In an action to recover for damages alleged to have been caused by defendant’s dog, in the absence of any evidence that complaints about the dangerous nature of defendant’s dog as made to the village board were communicated to her, the court’s instruction that the jury should disregard evidence of such complaints ‘ ’unless you believe from the evidence such complaints were communicated to the defendant” is erroneous.
    4. Argument op counsel — impropriety of reference to defendant’s wealth. A statement to the jury by plaintiff’s attorney in his opening that defendant was a wealthy woman was improper where, under the evidence, the jury had no right to award exemplary damages against defendant.

      Appeal by plaintiff from the Circuit Court of Fayette county; the Hon. Wm. B. Wright, Judge, presiding. Heard in this court at the October term, 1926.
    Reversed and remanded.
    Opinion filed February 19, 1927.
    Preihs & Preihs, for appellant.
    Matheny & Welker, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee filed a declaration consisting of two counts. The record shows that a demurrer was sustained to both counts and appellee was given leave to amend each count of his declaration and to file an additional count. Appellant states in her abstract that no amendment was made to the first or second count, but that a third count was filed. Appellee states in his brief and argument that the second count was amended and that a demurrer was interposed to that count as amended and the same was overruled. We find nothing in the record to indicate that appellee was granted leave to amend that count on its face, nor is there anything to show that this original count was in any way amended.

The third or additional count charged appellant with keeping a dog known to her to be fierce and ferocious and accustomed to attack and bite mankind; that on September 25, 1924, the dog attacked and bit appellee’s hand and leg, by reason whereof he became sick, sore, lame and disordered; that he suffered great pain and was prevented from transacting any business ; that he was put to great expense, to wit: $500, in endeavoring to be cured of his injuries, etc. In the second count the scienter is alleged as follows: “The defendant then and there well knowing the said dog was of a fierce, ferocious and mischievous and dangerous nature, and that said dog had a tendency to attack and bite mankind, and that it was dangerous and improper to allow said dog to go unconfined and not properly secured * * *.” The trial resulted in a verdict and judgment for $866.57.

The state of the record is such that we are in grave doubt as to whether the second count to which a demurrer was sustained was ever amended. But conceding that it was amended it is quite apparent that appellee, by his instructions, sought and recovered under the third count. The only instruction requested by appellee as to what it was necessary for him to prove in order to recover reads as follows: “The court instructs you that it is not necessary that it be shown that the defendant was the lawful owner of the dog in question; but if defendant kept and harbored said dog, knowing that said dog was of a vicious nature and before the injuries complained of was and had been accustomed to attack and bite mankind, then, in such case it became and was the duty of the defendant properly to restrain said dog; and if, because of her failure so to do, the plaintiff, without negligence or fault on his part, was attacked and bitten by said dog, then defendant would be liable for all damages occasioned because of such attack.”

That instruction was clearly based upon the third or additional count and made no reference whatever to the.second count. There was no evidence tending to show that this dog had ever attacked and bitten any person. The instruction was not based upon any evidence in the case. If the case were tried solely upon the third or additional count the judgment would have to be reversed. Fritsche v. Clemow, 109 Ill. App. 355; Warrick v. Farley, 95 Neb. 565, 145 N. W. 1020.

In the Fritsche case, supra, the declaration averred that the defendant kept a dog of a ferocious and malicious disposition, well knowing that said dog was accustomed to attack and bite mankind. Because of the fact that the scienter charged in that case did not include the ferocious and malicious disposition of the dog appellee claims the case differs from the one at bar. It is true that the third count in this case charges that appellant well knew that the dog was a fierce and ferocious one, and was accustomed to attack and bite mankind. We think there is no basis for drawing the distinction sought to be made by appellee. An averment that the defendant kept a dog which he well knew to be fierce and ferocious would not state a cause of action. The scienter must refer to the particular propensity of the dog which brought about the injury. A dog may be fierce and ferocious as to other dogs or animals but not so with reference to mankind.

Assuming that the case was tried upon the second count of the declaration as well as the third, we are of the opinion that the giving of the instruction above quoted was reversible error. There was no evidence upon which to base it. An instruction which tells the jury that if a certain fact exists virtually tells them that there is evidence from which they can find that fact, and if there is no such evidence, the instruction is calculated to mislead the jury, and is erroneous. Indianapolis & St. L. R. Co. v. Miller, 71 Ill. 463. In addition to that the instruction did not require the jury to find the facts from the evidence.

Appellee called the president of the village board of trustees and three of the trustees or aldermen. The court permitted all of these witnesses to testify over objections of appellant. One of them testified that complaints came to the village board about this dog, another that complaints came to the said board from citizens of Ramsey as to the vicious character of this dog and that the board ordered its clerk to give appellant notice, another that a complaint reached the board of the character of the dog. The president of the board was permitted to testify that some action was taken by the board relative to this dog and that he instructed the clerk to send appellant a notice. We are of the opinion that all of this testimony was incompetent and highly prejudicial. It was all objected to and motions made to strike it out. Appellee did not even undertake to show the character of the complaints against the dog, nor was there any proof that any notice whatever was sent to appellant by the said board or its clerk. Any notice given to appellant that would be pertinent to the issues in the case would be admissible, but we know of no law that would authorize the admission of the testimony above referred to.

Appellant also requested the court to instruct the jury to entirely disregard all the evidence showing that complaints had been made to the village board in regard to the dog. This instruction was modified by adding the words, “unless you believe from the evidence such complaints were communicated to the defendant.” There is no evidence in the record that such complaints were communicated to appellant and the evidence should have been excluded. In the opening statement of the case before the jury, one of the attorneys for appellee stated that appellant is a woman possessed of a large amount of property. Appellant objected to the statement, but the court made no ruling, and an exception was taken to the refusal of the court to rule thereon. Appellee suggests that the statement was proper because it is a case where the jury were at liberty to award exemplary damages and that in such cases the financial condition of the defendant may be shown. Under the evidence in this case, we are of the opinion that the allowance of exemplary damages would not be proper. Keightlinger v. Egan, 65 Ill. 235.

Appellant contends that the court erred in refusing several of her instructions. She presented and requested the giving of 23 instructions. The number was entirely too large for a case of this kind. The court gave four of them in the form they were presented, and gave four others as modified, and refused fifteen. If the case was tried solely on the third, or additional count, appellant’s fourteenth instruction should have been given, but if the second count of the declaration was still in the case the instruction was properly refused. For the reasons aforesaid the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Ignatz Goldstein, Appellant, v. Edward Guenther, Appellee.
    1. Pleading — insufficiency of plea combining want and failure of consideration. Where, to a declaration on a note which consists of the common counts and a special count on the note, the defendant files the general issue and special pleas which begin and conclude as pleas of total failure of consideration but indicate in their bodies that they are intended as pleas of partial failure, demurrer should be sustained to the pleas.
    2. Set-off, counterclaim and recoupment — when payment to third person cannot be set off. The payment by the purchaser of an ice-box of $275 yet due thereon to a third party cannot be set off by him against a balance he yet owed his seller on all the fixtures and stock sold under a sales contract by which he had agreed to pay the amount yet due on the ice-box if he decided to take it.
    3. Sales — what insufficient to show substitution of new agreement. A memorandum showing that a seller had sold his stock and fixtures to the buyer and received pay for them does not constitute a new agreement relieving the buyer from his sales contract agreement to complete payments on an ice-box in ease he afterwards decided to take it nor allow him to set off such payments against the balance he owed the seller.
    4. Costs — attorneys ’ fees in action on note. Defendant’s note, given for the balance owing on the purchase of a stock of goods, and stipulating a 10 per cent on the principal for attorney fee, made the defendant liable for the. fee upon his refusal to pay at due date and upon the note’s being placed in the hands of attorneys for collection.

      Appeal by plaintiff from the City Court of East St. Louis; the Hon. William F. Borders, Judge, presiding. Heard in this court at the October term, 1926.
    Reversed and remanded.
    Opinion filed February 19, 1927.
    McHale & McHale, for appellant.
    Kramer, Kramer & Campbell and R. E. Costello, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

The parties to this suit entered into a written contract as follows: ‘ ‘ This agreement made and entered into this 25th day of August, 1925, by and between Ignatz Goldstein, hereinafter called the seller, and Edward Guenther, hereinafter called the purchaser, witnesseth:

“The seller hereby agrees to sell to the purchaser all the merchandise, stock, fixtures and equipment used in forming a part of the grocery store and meat market located at. 1600 St. Clair Avenue, East St. Louis, Illinois, on the following terms and conditions, to wit:
“All of the fixtures and equipment in said store, except the Gruendler ice-box and Ford truck for the sum of Four Hundred and Thirty-five Dollars ($435.00.)
“All the stock of merchandise to be paid for by the purchaser at inventory price, said inventory to be taken on the 13th day of September, 1925.
“The purchaser shall have the privilege up until August 27,1925, of purchasing the said Gruendler icebox by paying to the said seller the sum of One Hundred Dollars ($100.00), and in addition thereto the said purchaser shall make all payments still due on the said Gruendler ice-box, amounting to the sum of Two Hundred and Seventy-five Dollars ($275.00).
“The seller further agrees to surrender the lease that he holds now on the premises located at 1600 St. Clair Avenue, aforesaid, to the said purchaser.
“The sum'of One Hundred Dollars ($100.00), part of said purchase price, is to be paid on the signing of this agreement, the balance of said purchase price to be paid on the 14th day of September, on which said date this deal is to be consummated.
“Edward Guenther,
“Ignatz Goldstein.”

Appellee paid appellant $100 at the time the contract was executed. He also decided to purchase the said ice-box. The stock of goods invoiced $1,253.65, and the total purchase price, including the fixtures and the $100 to be paid for the ice-box, amounted to $1,788.65. On September 14, 1925, appellee paid the amount of the invoice which, with the amount paid at the time the contract was executed, made a total in cash of $1,353.65.

On that day appellee gave appellant his note for $435, the balance of the total purchase price, falling due in 14 days with interest at the rate of 7 per cent until paid, together with 10 per cent of the principal as attorneys’ fees to become due when the note was placed in the hands of an attorney for collection.

When the note came due appellee refused to pay the same and this suit was brought. The declaration consists of a special count on the note and the common counts. Appellee filed the general issue and two special pleas. The special pleas begin and conclude as pleas of a total failure of consideration and must be considered as such even though the bodies thereof indicate that they were probably intended as pleas of a partial failure of consideration. The demurrer to the special pleas should have been sustained. The affidavit of merits was not in proper form and should have been stricken.

The defense sought to be made by appellee was that another party had a claim on the ice-box for $275 which he was compelled to pay in order to hold it. He also claimed that appellant took some pans from the store after the contract was made but there was no showing that the pans were included in the inventory or that they were a part of the fixtures.

The jury returned a verdict in favor of appellant for $149.75. He made a motion for a new trial, which was overruled, and judgment was entered on the verdict.

By the terms of the contract above set out appellee agreed to pay the balance due on the ice-box in the event that he decided to purchase it. When he paid that amount to the party holding the claim against the ice-box, he simply did what he had agreed to do. His counsel argue that he was entitled to reduce appellant’s claim by the amount thus paid, because the parties entered into a new agreement. The so-called agreement was simply a memorandum showing that appellant had sold his stock and fixtures to appellee for $1,788.65, and that appellant had received pay for the same. There is no foundation for the claim that this was a new contract and the jury were not warranted in reducing appellant’s claim by the amount appellee had "paid in accordance with the terms of his original contract. It would also appear that the jury did not allow appellant the attorneys’ fees provided for in the note. That is probably due to his own fault in failing to ask an instruction with reference thereto. The note having been placed in the hands of an attorney for collection appellee became liable for the attorneys’ fees therein specified. Barton v. Farmers’ & Merchants’ Nat. Bank, 122 Ill. 352. The judgment, being contrary to the law and the evidence, is reversed and the cause remanded.

Reversed and remanded.


text:
    Louis Beasley et al., Appellees, v. American Surety Company, Appellant.
    1. Estoppel — notice of suspicious circumstance as preventing application of doctrine. A surety, sued on an appeal bond, cannot defend on the ground that the judgment creditor was estopped from collecting the judgment because of his canceling it on the record and thus leading the surety to return to the judgment debtor bonds taken as security, where the surety had been informed before such return that the cheek given by the debtor to get the judgment satisfied was not paid, a fact so suspicious that the surety could no longer reasonably rely on the judgment record.
    2. Appeal and error — insufficiency of payment by dishonored oheels to release bond. Satisfaction of a judgment on the record or receipt of a check which is afterwards dishonored will not operate to release a surety on an appeal bond from the claims of the judgment creditor,
    Appeal by defendant from the City Court of East St. Louis; the Hon. William F. Borders, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed February 19, 1927.
    C. E. Pope and H. F. Driemeyer, for appellant.
    Louis Beasley, Dan McG-lynn, Jr., Beasley & Zulley and McGlynn & McGlynn, for appellees.
   Mr. Presiding Justice Barry

delivered-the opinion of the court.

Mike Murgic recovered a judgment in the city court of East St. Louis against Fort Dearborn Casualty Underwriters on the 18th day of December, 1924, for the sum of $5,000'. The defendant therein- prayed and perfected an appeal to this court, and the present appellant became a surety upon the appeal bond. Some time after the rendition of the judgment aforesaid Mr. Murgic assigned the judgment to the appellees in the present case. The assignment was filed in the office of the clerk of the city court and was noted upon the judgment docket.

Appellees, as assignees of the judgment, sued the appellant upon the appeal bond. Appellant’s sole defense was estoppel which it pleaded specially. The plea was to the effect that before appellant would execute the appeal bond sued on, it required the judgment debtor to deposit with it certain school bonds of the value of more than $5,000 to protect it against its liability on the bond; that on March 15, 1926, appellees indorsed a satisfaction in full upon the record of the judgment mentioned in the appeal bond; that thereupon the judgment debtor presented to appellant a certified copy of the said indorsement and requested a return of the said school bonds; that appellant, relying upon said indorsement of satisfaction of the said judgment, returned the said school bonds to the judgment debtor on March 19, 1926; that by reason of the premises aforesaid appellees ought not to be heard to say that the said judgment has not been paid and that they should not be permitted to have or maintain their said action, etc.

To the plea appellees replied, inter alia, that appellant knew, before it returned the said school bonds to the judgment debtor, that the said judgment had not been actually paid. A jury having been waived the court found the issues in favor of appellees and rendered judgment for $5,401.04.

The undisputed evidence shows that on March 19, 1926, just before the school bonds were returned to the judgment debtor, the vice president of appellant, who then had possession of the said school bonds, was informed by the attorney for the judgment debtor that the check which had been given in payment of the judgment was not paid but had been sent back for proper indorsement. After the receipt of that information, appellant returned the school bonds to the judgment debtor. It also appears that the check given by the judgment debtor in payment of the judgment has never been paid.

We are of the opinion that appellant cannot successfully invoke the doctrine of estoppel under the undisputed evidence aforesaid. By executing the appeal bond, it became liable for the payment of the judgment if the same should not be paid by the judgment debtor. While the judgment was satisfied of record by appellees and appellant had a certified copy of such satisfaction, yet, before it changed its position by returning the school bonds to the judgment debtor, it was informed that the check which the judgment debtor had given in payment of the judgment had not, in fact, been paid, but had been returned for proper indorsement. Having that information, appellant should not have returned the school bonds until the check was actually paid.

The attempted payment by a draft or check which is dishonored is no payment. Canadian Bank of Commerce v. McCrea, 106 Ill. 281. The essential elements of an estoppel in pais are: Misrepresentation or concealment of material facts, ignorance of the truth of the matter by the party to whom the representations were made, and reliance on his part in acting upon the representations. Holcomb v. Boynton, 151 Ill. 294. A party desiring to claim the benefit of an estoppel cannot shut his eyes to obvious facts or neglect information easily obtainable, and then charge his ignorance to others. Vail v. Northwestern Mut. Life Ins. Co., 192 Ill. 567. The party to whom the representations were made must have been without knowledge or the means of knowledge of the real facts. 21 C. J. 1119. One relying on estoppel must have exercised such reasonable diligence as the circumstances of the case require. If he conducts himself with a careless indifference to means of information reasonably at hand or ignores highly suspicious circumstances which would warn him of danger or loss, he cannot invoke the doctrine of estoppel. 21 C. J. 1129-1130.

With the knowledge appellant had before it returned the school bonds to the judgment debtor, it is not in a position to invoke the doctrine of estoppel. The judgment is in accordance with the law and the evidence and for that reason it is unnecessary to determine whether the court erred in any of its rulings on the propositions of law submitted by appellant. The judgment is affirmed.

Affirmed.


text:
    E. P. Howard et al., Appellees, v. Charles H. Reith, Appellant.
    1. Pleading — amendment joining parties on appeal from justice court. After trial is begun in the circuit court in a ease appealed from the justice court and the defendant has moved for a directed verdict at the close of plaintiff’s evidence on the ground of nonjoinder of plaintiff’s partner as the suit was brought to collect a debt due the firm, the court properly allowed an amendment by plaintiff to join the other partner as coplaintiff and properly overruled the motion for directed verdict.
    2. Pleading — when amendment allowed considered as made. In a suit by one partner to collect a firm debt, and in which the court permitted the plaintiff to join as coplaintiff his partner after defendant’s motion for directed verdict for nonjoinder, the trial then proceeding on the assumption the amendment had been made, the court on appeal will treat the case as though the amendment had actually been made.
    3. Pleading — when amendment allowed considered as made. In a suit brought by one partner to collect a firm debt, after defendant’s motion for directed-verdict on the ground of nonjoinder by plaintiff of his partner had been overruled upon order made allowing plaintiff to join his partner, and defendant proceeded as though amendment had been made and did not renew his motion at the close of all the evidence, he is in no position to urge the question opt appeal.
    4. Appeal and error — when motion to set aside verdict not contained in transcript not considered. A motion to set aside a verdict and enter judgment for defendant on the ground of nonjoinder of a necessary party plaintiff will not be considered by the Appellate Court if it does not appear in the transcript of the record, even though the making of the motion is shown in the abstract of the record.
    Appeal by defendant from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed February 19, 1927.
    J. B. Harris, for appellant.
    Francis J. Manning, for appellees.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellant appealed from a justice of the peace to the circuit court where there was a trial de novo resulting in a verdict and judgment in favor of appellees for $98.

Appellant contends that the suit was brought in the name of one partner to collect a debt alleged to be due to the firm of which he was a member. At the close of appellees’ evidence appellant requested a peremptory-instruction on the ground that there was a nonjoinder of a necessary party plaintiff. The court granted leave to join the other partner as a coplaintiff and overruled the motion for a directed verdict. Appellant insists that the court erred in allowing an amendment at that stage of the proceedings. The court did not err in its ruling. A new party plaintiff may be joined with the original plaintiff, upon an appeal from a justice, after the trial has begun in the circuit court. McDowell v. Town, 90 Ill. 359; Smith v. Martin & Oesterle, 28 Ill. App. 224; Zipp v. Uhland Hain No. 16, 30 Ill. App. 280.

Appellant contends that even if the court had authority to allow the amendment, yet the amendment was never actually made, and for that reason, the judgment must be reversed, "Where there is an order granting leave to amend and the subsequent proceedings in the cause are based upon the assumption that the amendment has been made, the course is to consider the order as standing for the amendment itself. Where a motion to amend has been granted but no amended pleading appears in the judgment roll, it may be treated, on appeal, as if actually made. Hinchliffe v. Wenig Teaming Co., 274 Ill. 417-424; Deutsch-Roemisch Katholischer Central Verein v. Lartz, 192 Ill. 485; Ohlendorf v. Bennett, 241 Ill. App. 537.

After the overruling of appellant’s motion for a directed verdict, he introduced his evidence and at the close of all the evidence again requested a peremptory instruction. There is nothing in the record to indicate that he in any way informed the court that the amendment had not been made. In his motion for a new trial he set up that the court erred in denying his motion to dismiss the suit, on the ground in nonjoinder of necessary parties plaintiff, which was made at the close of the plaintiff’s evidence, but he made no complaint whatever in regard to the court’s refusal to direct a verdict at the close of all the evidence. It is quite apparent that after the leave to amend was granted appellant proceeded with the trial of the case upon the theory that an amendment had been made. Having failed to bring the matter to the attention of the trial court, he is in no position to urge the question in this court.

In his abstract of the record appellant shows that he made a formal motion to set aside the verdict and to enter judgment in his favor, notwithstanding the verdict, for the reason that there was a nonjoinder of necessary parties plaintiff, etc. No such motion appears in the transcript of the record. An abstract should not contain anything that does not appear in the transcript. If appellant made such a motion, he should have seen to it that it was properly made a part of the transcript.

Counsel for appellant criticises the trial judge rather severely because of the fact that he asked appellant some questions while upon the witness stand. No objection or exception was taken to the action of the court in that regard. While it is usually better for the court to leave the examination of the witnesses to the attorneys, yet we find nothing in the record to warrant the criticism of the trial court in this case. Appellant makes no claim that he is not justly indebted to the partnership in the amount for which the judgment was rendered. No reversible error having been pointed out, the judgment is affirmed.

Affirmed.


author: Mb. Presiding Justice Barry

text:
    Commercial Casualty Insurance Company of Newark, New Jersey, Appellant, v. David A. Campfield, Appellee.
    1. Insurance — amount of benefits recoverable under casualty policy. A casualty policy providing for a monthly indemnity to continue for five years after total disability while injured was under a doctor’s care and treatment, only allows judgment to be entered in suit thereon for the sum of the monthly payments due at the time suit is begun.
    2. Insurance — right to recover benefits accruing after action on casualty policy. Monthly payments falling due after the commencement of suit to collect for injuries under a casualty policy for five years’ monthly payments while under doctor’s care for total disability may be eoUected in a subsequent suit.
    3. Insurance — admission of disability as dispensing with proof of medical treatment. An insurance company’s concession in a suit on a casualty policy allowing five years’ monthly payments for a total disability while under doctor’s care, that the plaintiff was totaUy disabled makes unnecessary proof that plaintiff was under treatment by a doctor during the period sued for, as treatment in such ease would be useless.

      Appeal by plaintiff from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1926.
    Eeversed and judgment entered here.
    Opinion filed February 19, 1927.
    T. P. Moore, for appellant.
    W. J. MacDonald, for appellee.
   Mb. Presiding Justice Barry

delivered the opinion of the court.

Appellant, issued an accident policy in which it agreed that if appellee should sustain bodily injury through external, violent and accidental means, which would wholly and continuously disable and prevent him from performing any and every duty pertaining to any business or occupation, it would pay him $45 per month from the date of the accident for a period not exceeding five consecutive years, nor in excess of the time appellee was under the regular treatment of a legally qualified physician or surgeon.

Appellee was in the employ of the National Enameling & Stamping Company at Granite City, Illinois, and on February 25, 1924, had an accident which resulted in a complete fracture of the skull and other injuries. This suit was brought to recover the weekly indemnity for total disability. A jury was waived and the trial resulted in a verdict and judgment in favor of appellee for $3,500. The evidence shows that appellant paid appellee $45 for the month ending March 25, 1924. This suit was begun on December 2, 1925, so that, in any view of the case, there was no more than 20 months ’ indemnity due at the time the suit was filed. Appellant filed a motion .for a new trial, one of the grounds of which was that the amount found to be due by the court was excessive. The motion was overruled and judgment entered for $3,500. Appellee admits in this court that the judgment is excessive and argues that it should have been entered for $2,700 instead of $3,500.

The parties contracted for the payment of a monthly indemnity and we are of the opinion that, in any event, appellee was not entitled to recover any more than the amount due at the time this suit was begun. The most that could have accrued between the date of the accident and filing of the suit was 21 months, or $945, and $45 of that amount had been paid. Benefits accruing after the commencement of a suit are not recoverable in an action of indemnity for benefits. Baltimore & Ohio Employes Relief Ass'n v. Post, 2 L. R. A. 44.

Appellee contracted for a monthly indemnity in case of total disability and in any event the payments were not to continue longer than five years. At the time this suit was begun some of the payments would not be due for more than three years. It is more than likely that if appellee died before the expiration of the five-year period, payments would cease. The contract was not for the payment of $2,700, presently, but in monthly payments covering not to exceed a period of five years. The court could not enter a judgment for $2,700 under such circumstances. It would be making a new contract for the parties. Another suit may be brought for monthly p'ayments falling due since the commencement of this suit. Marshall v. John Grosse Clothing Co., 184 Ill. 421.

Appellant does not contend that appellee was not totally disabled, within the meaning of the policy, from the time of the accident until the commencement of this suit. It is argued, however, that under the terms of the policy appellee was not absolutely entitled to a monthly indemnity of $45 for a period of five years, but that the monthly payments were not to exceed the timé appellee was under the regular treatment of a legally qualified physician or surgeon; that the evidence shows that appellee was not under such treatment for more than three months of the time in question, and appellant having paid for one of those months, the recovery should be limited to two months.

As appellant concedes that appellee was totally disabled during all of the time in question, we are at a loss to understand why it should be necessary to do such a useless thing as to remain under the treatment of a doctor. No claim is made that his condition could, or might, have been improved by such treatment.

In many cases the very purpose for which accident insurance is written would be defeated if there could be no recovery for an injury which did not require the regular attendance and treatment by a physician. A recovery may be had if the insured was under the care of a physician, even though no treatment was administered. Rechtzigel v. National Casualty Co., 143 Minn. 302, 173 N. W. 670. An accident policy providing that indemnity should not be paid for more than two years, nor longer than insured is under the regular treatment of a legally qualified physician or surgeon, does not require treatment, where it is undisputed that none of value could be given. Hunter v. Federal Casualty Co. of Detroit, Mich., 199 App. Div. 223, 191 N. Y. Supp. 474. See also Cook v. Benefit League of Minnesota, 76 Minn. 382, 79 N. W. 320.

The policy sued on also insured appellee against disability resulting from illness and against partial disability. In view of the various provisions of the policy, we are of the opinion that the provision relied upon by appellant as a defense to this suit, except for two months’ indemnity, cannot be held applicable to a claim for total disability, where the fact that appellee was totally disabled is conceded by appellant. But in any event, in the state of the proof, we would not be warranted in holding that there was no evidence tending to prove that appellee was under the regular treatment of a doctor during all of the time in question.

The judgment for $3,500 is reversed and the clerk of this court will enter a judgment here in favor of appellee and against appellant for the sum of $900. Bach party will pay one-half of the costs in this court and appellant will pay the costs in the trial court.

Judgment reversed and judgment entered here.


text:
    City of West Frankfort, Appellee, v. Lizzie Pellegrene, Appellant.
    1. Appeal and error — waiver of assignment of error by failure to urge. Errors assigned but not argued or mentioned in the brief and argument must be considered as waived.
    2. Criminal procedure — objection that evidence secured by illegal search. On a prosecution for violation of a prohibition ordinance, objection to the admission of evidence on the ground that it was procured by means of an illegal search warrant must be raised by motion in the trial court before the trial.
    3. Appeal and error — incorporation of motions and rulings thereon in bill of exceptions as essential. Motions in a common-law action and the rulings thereon are not a part of the common-law record but must be preserved by bill of exceptions; the clerk’s recital, in the transcript, of the motion, the court’s ruling and the exception thereto are insufficient.
    4. Intoxicating liquor — proof that wine intoxicating not essential. Under Cahill’s St. ch. 43, 2, no proof that wine is intoxicating is necessary, and the courts will take judicial notice that it is intoxicating.
    5. Intoxicating liquor — possession of liguor without sale as offense. The possession of intoxicating liquor without being authorized by law is an offense under the Prohibition Act, Cahill’s St. ch. 43, and in a prosecution for violation of a prohibition ordinance proof of sale or of possession for the purpose of sale is not required.
    6. Intoxicating liquor — when evidence of intoxication properly excluded. On a prosecution for violation of a prohibition ordinance it is not error to refuse to permit defendant to ask, on cross-examination, how many men the witness had seen go into defendant’s house sober and come out drunk and if the witness had seen any do so before he had made the affidavit for the warrant on which defendant’s house was searched,

      Appeal by defendant from the City Court of West Frankfort; the Hon. James P. Moonbyham, Judge, presiding. Heard in this court at the October term, 1925,
    Affirmed.
    Opinion filed February 19, 1927.
    J. E. Carr and George Sawyer, for appellant. •
    Horatio R. Dial, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Defendant was charged with the violation of a pro•hibition ordinance, and there was a verdict of guilty. Some errors are assigned but not argued or mentioned in the brief and argument, and must be considered as waived. The main ground relied upon for a reversal seems to be that the evidence upon which she was convicted was procured by means of an illegal search warrant. That question must be raised before the trial, in the trial court, by a motion. People v. Brocamp, 307 Ill. 448. It is argued that such a motion was made and overruled and exception taken. Motions made by the parties in a proceeding at law, and the rulings of the court thereon, are not parts of the common-law record but must be preserved by bill of exceptions. People v. Levin, 318 Ill. 227; People v. Weston, 236 Ill. 104. It is not sufficient that the clerk, in writing up the transcript, recites the motion, the ruling of the court and an exception thereto. People v. Faulkner, 248 Ill. 158; People v. Moritz, 238 Ill. 494; People v. Arnett, 317 Ill. 425. If we had jurisdiction to determine the question sought to be presented it is not properly preserved and we are not at liberty to consider it.

It is argued that the evidence does not show that the liquor found in the possession of defendant was intoxicating or that it contained more than one-half of one per cent of alcohol by volume. Section 2 of the Illinois Prohibition Act [Cahill’s St. ch. 43, H 2] and section 1 of the ordinance in question declare that wine is an intoxicating liquor without regard to the alcoholic content. She was charged in the complaint with possessing wine without having complied with the law. The courts take judicial notice that wine and whisky are intoxicating. City of Kewanee v. Puskar, 308 Ill. 167; 48 L. R. A. (N. S.) 305 note.

It is argued that there is no evidence that defendant sold any of the liquor or had it in her possession for the purpose of selling the samé. The possession of intoxicating liquor without being authorized by law to possess the same is an offense under the Prohibition Act. People v. Martin, 314 Ill. 110-114. The complaint charges that she possessed intoxicating liquor without being authorized by law to possess the same. No suggestion or argument has been presented to the effect that the complaint was insufficient to charge a violation of the ordinance. It was not necessary that the evidence should show that she sold any of the liquor or that she had it in her possession for the purpose of selling it.

The witness McBeynolds swore out the search warrant. It is argued that the court erred in refusing to allow defendant, on cross-examination, to ask him how many men he had seen go into her house sober and come out intoxicated, and if he could name any person who went in sober and came out drunk, before he made the affidavit. The court did not err in its rulings in that regard.

No reversible error having been pointed out, the judgment is affirmed.

Affirmed.


author: Mr. Justice Boggs

text:
    City of Carlyle, Plaintiff in Error, v. Village of Beckemeyer, Defendant in Error.
    1. Arbitrations and awards — waiver of objection to want of authority to submit. The objection that submission of a dispute between a city and a village to a board of arbitrators was done without ordinance or resolution of the city and village was waived by the city in participating in the hearing without objecting to the authority of the respective attorneys to agree to the submission.
    2. Arbitrations and awards ^waiver of oath to arbitrators. That arbitrators appointed were not sworn is waived by proceeding with the hearing without objection.
    3. Appeal and error — presumption in favor of award in absence of exceptions. On appeal from a judgment on an award it will be presumed, in the absence of a bill of exceptions, that the arbitrators were duly sworn.
    4. Courts — jurisdiction of circuit court of appeal in arbitration proceeding. An arbitration proceeding being a statutory proceeding and not a suit at law or in equity, an appeal from a judgment of the county court setting aside the award and refusing to enter judgment thereon is properly taken to the circuit court.
    5. Arbitrations and awards — award not conforming to submission. An award of arbitration merely declaring void a contract is void in exceeding and in not covering the matters included in the submission which was solely to construe the contract and determine whether one of the parties could perform.
    6. Appeal and error — when inclusion of petition and award in bill of exceptions not essential on appeal in arbitration proceeding. Notwithstanding there was no bill of exceptions in an arbitration proceeding, the petition and the award of the arbitrators were before the circuit court on appeal from the county court and before the Appellate Court on appeal from the circuit court.
    Error by plaintiff to the Circuit Court of Clinton county; the Hon. F. R. Dove, Judge, presiding. Heard in this court at the October term, 1926.
    Reversed and remanded.
    Opinion filed February 19, 1927.
    H. J. 0. Beckemeyer and Noleman, Smith & Ball-stream, for plaintiff in error.
    Andrew O. Niehoee and Hugh V. Murray, for defendant in error.
   Mr. Justice Boggs

delivered the opinion of the court. Plaintiff in error, City of Carlyle, in 1921 owned and operated a municipal lighting plant, and on October 3rd of said year entered into a contract with defendant in error, Village of Beckemeyer, by which it agreed to furnish, upon certain terms and conditions therein named, its surplus electrical current to said village for lighting its streets and for the use of its inhabitants. Among other things, said contract provided :

“ Should any dispute arise between the parties hereto as to the proper construction to he placed upon any clause herein or the legal effect thereof, or as to the manner in which this agreement is being executed, by either party, or the ability of either party to live up to its portion of this agreement, such questions shall, at the request of either party in writing, be referred to arbitrators. * * * It is further agreed between the parties hereto that the proceedings of the arbitrators shall he under the provisions of the statute relating to arbitrators and disputes, and that both sides shall covenant and agree that no appeal shall be taken therefrom.”

In October, 1924, a dispute having arisen between said parties touching the meaning of said contract, etc., a joint petition was filed by said municipalities, acting through their respective attorneys, in the county court of Clinton county, which, after reciting the making of said contract, alleged:

“Tour petitioners further represent that a dispute has arisen by and between your petitioners as to the meaning of said contract and the ability of your petitioner, the Village of Beckemeyer, Illinois, to carry out and perform its part of said contract.

“Tour petitioners further respectfully represent that they are neighboring municipalities, and that each of them has agreed with the other to submit their misunderstanding to a board of arbitrators, as provided by the statute of the State of Illinois. * * * that your Honor appoint some disinterested, capable and efficient engineer to act with the following named persons, who have been heretofore appointed by your petitioners, Mr. Conrad J. Leonard of; Beckemeyer, Illinois, and Mr. Theodore T. Koelker of Carlyle, Illinois, as Arbitrators, and cause the three persons, when named, by appropriate order of this Court, to constitute themselves a Board of Arbitration to hear and determine all outstanding disputes by and between your petitioners, in relation to said contract, and to cause them to file a written copy of their award, upon arbitration, in this court, as required by law, and petitioners agree that said decision shall be binding and that no appeal shall be taken therefrom by either.”

H. C. Hough was appointed by the county court, with the other arbitrators. Said arbitrators, after a hearing, reported that they caused the witnesses that were submitted by the respective parties to be examined ; that they considered all the evidence produced before them, and made the following finding and report :

“We find that said contract is unenforceable and void because the City of Carlyle has failed and neglected to furnish the Village of Beckemeyer, Illinois, with reasonable electrical current, quality and quantity considered, as intended by the terms and provisions in said contract.”

In addition thereto, said commissioners made certain recommendations as to what said commissioners believed would be for the best interests of said municipalities.

On hearing, the county court set aside said award and refused to enter judgment on the same. An appeal was taken by the Village of Beckemeyer to the circuit court, and on the hearing in that court, the following order was entered:

“This court therefore finds that the City of Carlyle has failed and neglected to furnish the Village of Beekemeyer with electrical current to take care of its reasonable demands, and that said contract of October 3, 1921, was breached by the City of Carlyle in so doing. Judgment accordingly upon the award of said arbitrators, and the judgment of this Court is that said contract of October 3, 1921, has been breached by the City of Carlyle by its failure and neglect to furnish the Village of Beekemeyer electrical current as provided by the terms and provisions of said contract.”

To reverse said judgment, this writ of error is prosecuted:

It is first contended by counsel for plaintiff in error that the submission to arbitration in this case is void, for the reason that, under the law, city and village attorneys have no power to cause a submission to arbitration by the cities or villages represented by them; that such submission must be made by ordinance or resolution of such cities or villages.

However that may be as a general proposition of law, in this case the City of Carlyle and the Village of Beekemeyer respectively appointed arbitrators and appeared before said board as finally organized, and submitted their evidence and took part in the hearing, without raising any question as to the authority of their said attorneys. That being the state of the record, we do not think plaintiff in error is in a position to urge this assignment of error.

It is also contended by counsel that said arbitrators were not sworn. No bill of exceptions was preserved by plaintiff in error. It will therefore be presumed that said arbitrators complied with the law and were duly sworn. It might be further observed that, if the parties proceeded to a hearing before unsworn arbitrators without objection, they will be deemed to have waived that requirement. Kankakee & S. R. Co. v. Alfred, 3 Ill. App. 511.

It is also contended by plaintiff in error that the circuit court did not have jurisdiction of said appeal, and that such appeal should have been to the Appellate Court. No authority was cited in support of this contention. This is not a suit at law or in equity, but is a statutory proceeding. It is therefore properly appealed from the county to the circuit court. Sebree v. Sebree, 293 Ill. 228-234; McMahan v. Trautvetter, 305 Ill. 395; Pick v. Diecks, 218 Ill. App. 295-299.

It is next contended by plaintiff in error that the award did not follow the submission; that the arbitrators failed to make an award on the matters submitted to them, and undertook to make an award on matters that were not submitted. This point, we think, is well taken.

“It is the agreement between the parties submitting the matter in controversy for arbitration that fixes the conditions, limitations and restrictions to be observed by the arbitrators in mailing their award.” Buntain v. Curtis, 27 Ill. 374; Sherfy v. Graham, 72 Ill. 158-160; Clark v. Courter, 280 Ill. 590-604; Podolsky v. Raskin, 294 Ill. 443-450. The award should be as broad as the submission. If it is not, or goes outside of and beyond the submission, it is not binding on the parties. Alfred v. Kankakee & S. W. R. Co., 92 Ill. 609-611; Taylor v. Scott, Foresman & Co., 178 Ill. App. 487-498; Jones v. Bishop, 218 Ill. 318-331.

In Taylor v. Scott, Foresman & Co., supra, the court at page 498 in discussing this question says:

“Asa general rule, an award of arbitrators, in order to be binding, must follow the contract of submission as made by the parties. It is not for a board of arbitrators to change the terms of the submission or to determine any matter not therein contained. Their sole authority is the contract of submission. Their award is broader or narrower than the submission, the whole award is void. Buntain v. Curtis, 27 Ill. 374; Stearns v. Cope, 109 Ill. 340; Tucker v. Page, 69 Ill. 179; Whetstone v. Thomas, 25 Ill. 361; Alfred v. Kankakee & S. W. R. Co., 92 Ill. 609; McDonald v. Bacon, 4 Ill. (3 Scam.) 428; Ingraham v. Whitmore, 75 Ill. 24; Busse v. Agnew, 10 Ill. App. 527; Sherfy v. Graham, 72 Ill. 158; Steere v. Brownell, 113 Ill. 415; McCullough v. McCullough, 12 Ind. 487.”

In this case the arbitrators failed to report on the matter in dispute as to the meaning of said contract and the ability of the Village of Beckemeyer to carry out and perform its part of said contract. No finding or award whatever was made on this matter.

Counsel for defendant in error insists that plaintiff in error is not in a position to urge a reversal of this cause, for the reason that no objections were filed to said award in the circuit court, and that the objections filed in the county court were not before the circuit court on the appeal.

Whether or not counsel for defendant in error is correct in the contention that the objections filed in the county court were not before the circuit court on the appeal, we are of the opinion and hold that the petition and the award were before that court, and are before this court on this writ of error, notwithstanding there was no bill of exceptions.

In Buntain v. Curtis, supra, the court at page 376, in discussing a question of this character, says:

“This was a judgment on an award, made by arbitrators selected by the parties, with an agreement in the submission, that their award should be made a rule of court. On filing the award, exceptions were taken as it is urged, but if. so, they are not preserved in a bill of exceptions. It is first insisted, that the written submission, the award filed in the court below, or the exceptions thereto, are not a part of the record, unless made so by bill of exceptions. The statute having authorized parties by their submission, to have the award made a judgment of the court, it would seem to follow, that the submission and award, upon being filed for that purpose, and being the foundation of the judgment, became as much a matter of record, as the summons and declaration. The submission is as much the basis of the action as the declaration, and the award the foundation of the judgment as a verdict of a jury. By being filed with the clerk for the purpose of moving for a judgment, they clearly become a matter of record.”

Under the authorities above cited, the judgment of the circuit court, confirming the report of said arbitrators, and holding that the “city of Carlyle breached its contract by its failure and neglect to furnish defendant in error electrical current as provided by the terms and provisions of said contract,” cannot stand.

We are further of the opinion and hold that, under the submission as disclosed by the petition filed by said parties, the only question submitted to said arbitrators was with reference to the construction of said contract, and whether or not defendant in error had the ability to carry out and perform its part of said contract. It was certainly not the province of the board of arbitrators to declare the contract entered into between said municipalities null and void, in any view of the submission that could reasonably be taken.

For the reasons above set forth, the judgment of the trial court will be reversed and the cause will be remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. Phil Ripplinger, Plaintiff in Error.
    1. Highways and streets — excuse for failure of motorist to stop after striking motor vehicle on highway. In a prosecution under Cahill’s St. eh. 95a, 42 (1) for defendant’s failure after injuring a person on the highway, it is no defense that defendant was driving at such high speed that he did not see the injured person’s car turn over or know she was injured.
    2. Highways and streets — what required of motorist injuring another on highway. The proper construction of Cahill’s St. eh. 95a, 1Í 42 (1) is that it is the duty of one injuring another while driving his vehicle on the highway to report his name, address and vehicle number to the injured party if the report can be made to the latter, or, if not, to the nearest police officer, or if none is present to the nearest police station or judicial officer; he may not report to any one of the four at his pleasure.
    3. Highways and streets — arrest as affecting duty of motorist causing injury to report name. The arrest of defendant by police officers shortly after his car had caused another to turn over and injure its driver did not excuse him from the duty of reporting his name, address and automobile number to the injured person as required by Cahill’s St. eh. 95a, jf42 (1).
    4. Statutes — construction to effect intent. In construing statutes, the intention of the legislature is to be ascertained and given effect if possible, and if the statute is susceptible of more than one construction, it should be given the construction which will effect its purpose, rather than one which will defeat it.
    5. Instructions — when may properly he given in language of statute. The court did not err in giving as an instruction in the trial of defendant for violating Cahill’s St. eh. 95a, fl 42 (1) a copy of the statute, for though the evidence referred only to defendant’s injuring a person, and the statute refers also to property damage, this, provision is stated in the alternative.
    Error by defendant to the County Court of St. Clair county; the Hon. W. R. Weber, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed February 19, 1927.
    A. A. Huht and Clyde D. Miller, for plaintiff in error.

      H. C. Lindauer, State’s Attorney, for defendant in error; Curt C. Lindauer and John T. Thomas, Assistant State’s Attorneys, of counsel.
   Mr. Justice Boggs

delivered the opinion of the court. On April 15, 1926, an information was filed in the county court of St. Clair county against plaintiff in error, charging him with driving “an automobile on a highway, knowing that an injury had been caused to a certain person, to wit, Elizabeth Vollmer, due to the negligence of the said Phil Bipplinger, and did then and there unlawfully, knowingly, willfully leave the place of said injury without stopping and give his name, residence, including city and street number, motor vehicle number, to the said Elizabeth Vollmer, or to any police officer, police station or judicial officer, contrary to the statute in such case made and provided.” Cahill’s St. ch. 95a, ft42 (1).

A trial was had resulting in a verdict of guilty. The motion made by plaintiff in error for a new trial was overruled, and a sentence of six months in the county jail was imposed. To reverse said judgment, this writ of error is prosecuted.

It is first contended by counsel that the evidence fails to sustain the charge of knowledge on the part of plaintiff in error as to the injury to the said Elizabeth Vollmer.

The witness Elizabeth Vollmer testified: “I was going down on Broadway (East St. Louis) about twelve or fifteen miles an hour; he (plaintiff in error) came from the rear, hit my front wheel and of course that turned the machine around, and we went down the embankment; I don’t know what happened then. * * * They took me to the hospital; my arm was broken.”

Mrs. Anna Fisher, a witness on behalf of the People, testified that she and Mrs. Vollmer were driving “on the right side, real slow;. I don’t know just when the ear come; it come from the back and hit us on the side; heard nothing before and can’t say that I saw any other automobile; I know they came and got us; that is all I know. I don’t know what happened; we go down in the ditch.”

John Wright, a police officer, testified: “I was driving west on Broadway, between Ninth and Tenth, and a Ford sedan drove by with two ladies in it, and a fellow passed us in a Nash roadster; he was making about thirty miles to forty and just did miss me, and he cut in and hit the front part of that Ford sedan, and the Ford went over the embankment; he didn’t stop and I chased him about eight blocks and caught him at No. 15 Main street and arrested him. * * * We asked him why he didn’t Stop. He says, ‘I didn’t know I hit anything.’ ”

Robert Harrison, a police officer who was with Wright, testified: “We followed the lady’s car about ten feet behind, when a car comes in behind us, so he ducked around us, and when he aimed to go by them the same as he went by us, I think it was his fender that hit the lady’s front part of her ear, and I think no man in the world who could have kept it from going down the dump. We figured this fellow, after he looked back at the car — we gave chase to this fellow.” This witness also testified that he asked plaintiff in error, “Why didn’t you stop when you knocked those people down the dump? He says, ‘I didn’t know if it hit.’ That fellow was going fifty miles an hour.”

Plaintiff in error testified, among other things: “It was raining light. I was in the car track going west, and this Ford car was also going west between the rail and the curb on the north side and she started to pass me and cut over in the car track in front of us, the front of her car struck me right in the middle, struck my right front fender; I just heard a little bump, that is all. I kept on driving. * * * I never saw anyone go over. I looked around Broadway. They were driving up the same as I was.” On cross-examination he testified: “I heard a little fender scrape, it sounded to me, just barely hit me. I looked around. They were driving the same direction I was; they followed me after they hit. I would say they were twenty feet behind about half a minute after the accident. I didn’t know the officers were following me — I didn’t know them.”

The testimony of Martin Hendy tended to corroborate plaintiff in error’s testimony to the effect that the car of Mrs. Vollmer turned towards and striick plaintiff in error’s car. W. Holliday, a witness on behalf of plaintiff in error, testified: 1 ‘ The Ford sedan was driving near the curb; it seemed to me she was a little bit in front; she started to pull out in front of the Nash, and it seemed like when she saw she was about to hit this fellow she got excited and went toward the curb; she drove down the street about twenty or thirty feet; she hit the wire, went up on the curb and went over the sidewalk, and the car dropped over the embankment.”

This, in substance, was the testimony in the case.

Counsel, in his argument to show lack of knowledge on the part of plaintiff in error as to any injury to Mrs. Vollmer, says:

“The Ford, then, if it went directly to the bottom, went some fifty feet, and if we take the witnesses for the People the defendant was dashing down Broadway at fifty miles an hour, and would then have been 200 feet or so away from the resting place of the Ford, and twenty feet higher. Therefore, he could not have seen her when she sustained the broken arm, which we assume happened when the Ford hit the bottom, as the testimony is that the only part of her machine struck was the front wheel from the side.”

In other words, counsel takes the position that a party may drive down the street of a city at 50 miles an hour, strike an automobile driven by some one else, cause it to go over an embankment, falling some 15 to 20 feet, and then say that, because, at the speed at which he was driving, he had gone such a distance by the time the car reached the bottom of the embankment that he would be unable to see what happened, that therefore, under this statute, he could not be found guilty because the evidence would fail to prove that he actually knew of the injury. We are not willing to give this statute such construction. That construction should be given a statute which will give effect to the intention and object of the legislature in adopting the same. Cummings v. People, 211 Ill. 392-405; City of Decatur, v. Schlick, 269 Ill. 181-185. Courts will not adopt a construction which will lead to absurd consequences, unless the language of the statute will admit of no other construction. Sturges v. City of Chicago, 237 Ill. 46-51.

Plaintiff in error is bound by his testimony that he looked around after the collision, and the jury, in view of the testimony of the witnesses on behalf of the People as to what happened after the collision, were warranted in drawing the conclusion that plaintiff in error must have seen the car of Mrs. Vollmer go pver the embankment, and must have known that under the circumstances she would be injured.

It is next contended by plaintiff in error that the proper construction of this statute allowed him to make report of said accident to any one of four places: “(1) The injured person, (2) a police officer, (3) the nearest police station, (4) a judicial officer.”

We cannot adopt this construction. The statute makes it the duty of the person whose negligence has caused an injury to another, or to the property of another, to give his name, etc., to the injured person or to a police officer. If there be no police officer present, or the report cannot be made to the injured person, then the report may be made to the nearest police station or judicial officer. In this case, the injured person was there at the place of the accident. If she was unconscious by reason of the accident, then there were two police officers in the immediate vicinity. It was therefore plaintiff in error’s duty to make his report to either Mrs. Vollmer or the two police officers.

Counsel in his argument says that, the police officers having arrested him, it was not necessary to report to them, and as they took him to a police station, it must be assumed that they took him to tlie nearest police station and that a report was made there, and therefore there was no occasion for plaintiff in error making any report. That argument is not well founded.

In construing statutes, the intention of the legislature is to be ascertained and given effect if possible, and if the statute is susceptible of more than one construction, it should be given the.construction which will effect its purpose, rather than one which will defeat it. People v. Joyce, 246 Ill. 124-130; People v. Price, 257 Ill. 587-593.

It is next insisted that the court erred in giving the first instruction given on behalf of the People. This instruction is a copy of the statute which was alleged to have been violated. No contention is made that the instruction would tend to mislead the jury because abstract in form, but the contention is that it refers to an injury to the person or to property, and that in this case the evidence is with reference to injury to the person alone.

This is not a valid objection to the instruction, as the statute is in the alternative. The court did not err in giving this instruction.

Finding no error in the record, the judgment of the trial court will be affirmed.

Judgment affirmed.


text:
    William R. Young et al., Plaintiffs in Error, v. William G. Bergner, trading as Bergner Plumbing, Heating & Supply Company, and John R. Kelahan, trading as Peerless Electric Company, Defendants in Error.
    1. Mechanics’ liens — when owner charged with notice of installation of improvements for tenant. Under Cahill’s St. eh. 82, 1, the owners of property are liable in a mechanic’s lien action for heating, plumbing and electric work done thereon at the request of a tenant as they knew the work was being done from being about the property at times, or if the owner did not have actual notice she had constructive notice from that given to her son, her grantor, and also from the fact that her residence was within 200 yards of the work.
    2. Mechanics’ liens — estoppel of owner to claim improvement ordered by tenant unnecessary. Defendant owners of property in a mechanic’s lien action for heating and plumbing work done thereon at the request of a tenant, having been advised of the character of the work being done and not having objected, are in no position to defend on the ground said work was unnecessary.
    3. Mechanics’ liens — effect of owner’s approval of work ordered by tenant. After the plan for an electric sign and other electrical work to be done on a building at the request of a tenant was submitted to one of the owners and had his approval, he is in no position to complain that the sign was not a fixture of the building in a mechanic’s lien action for the work done.
    4. Mechanics’ liens — application of payment to nonlienable part of claim. In a mechanic’s lien action for electrical work, since the record does not disclose how the payments made by the tenant, at whose request the work was done, were to be applied, the court will hold they were made to extinguish what may be considered the nonlienable part of the claim and will hold the owners who had knowledge of such work done liable under a mechanic’s lien for the balance of the claim.
    Error by plaintiffs to the Circuit Court of Madison county; the Hon. J. E. Gillham, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed February 19, 1927.
    Harold J. Bandy, for plaintiffs in error.
    Warnock, Williamson & Burroughs and Wesley Lueders, for defendants in error,
   Mr. Justice Boggs

delivered the opinion of the court. Defendant in error William Gr. Bergner, doing business as Bergner Plumbing, Heating & Supply Company, filed a petition in the circuit court of Madison county for a mechanic’s lien against certain real estate held in the name of plaintiffs in error William R. Young and Addie C. Young, for the installation of a certain steam heating plant, lavatories, shower baths, etc., in certain buildings on said premises, said work and materials having been furnished at the request of one Harry Bricker, who was a tenant in possession of said property.

Defendant in error John R. Kelahan, doing business as Peerless Electric Company, filed an intervening petition in said cause, seeking a mechanic’s lien for $239.80, balance unpaid for certain alterations, repairs, etc., in the electrical work on said buildings, and for the installation of an electric sign.

Plaintiffs in error joined in a general answer to said petition filed by Bergner, in which they admit that Bricker was a lessee óf said premises, but deny any knowledge of a contract between Bricker and Bergner for the installation of said heating plant, plumbing, etc. Ho answer was filed to said intervening petition. Said cause was referred to the master to take the proofs and report the same, together with his conclusions of law and fact thereon.

The master, after having taken the evidence, reported among other things that, with the knowledge of plaintiffs in error, defendant in error Bergner had furnished labor, materials, etc., in the matter of the installation of said heating plant, lavatories, shower baths, plumbing, etc., aggregating $2,484.76; that there had been payments made thereon by Bricker reducing said bill to $1,905.67, and that there should be a further credit of $100 allowed to plaintiffs in error for materials which had been removed from said premises; and that defendant in error Bergner was entitled to a mechanic’s lien for $1,805.67.

As to the claim of defendant in error Kelahan, the master found and reported that he, Kelahan, had furnished labor and materials in and about the electrical work on said building, at the request of Bricker and with the knowledge and consent of plaintiffs in error, under a contract for $700, and that he had furnished extras in and about said work amounting to $39.80, making a total of $739.80; that there had been paid on said contract and extras by the said Bricker the sum of $500, leaving a balance owing to defendant in error Kelahan of $239.80, and that he was entitled to a mechanic’s lien therefor.

The objections filed to said report before the master were ordered to stand as exceptions. On hearing, the court overruled said exceptions and entered a decree in compliance with the findings of the master. To reverse said decree, this writ of error is prosecuted.

It is first contended by plaintiffs in error that they had no notice of the installation of said heating plant, lavatories, shower bath and other plumbing being installed by Bergner, and had no notice of the electrical work on the building in question and the installation of said electric sign.

Without going into a detailed discussion of the evidence, there is a clear preponderance to the effect that plaintiffs in error William R. Young and Charles R. Young were both in and about said building when said heating plant was being installed therein and the other plumbing work above-mentioned was being done. It also clearly establishes that Charles R. Young was in and about said building frequently when said electrical work was being done and said electric sign was being installed, and that William R. Young was there occasionally. ' As to plaintiff in error Addie C. Young, while the evidence may not show actual knowledge on her part, the record is to the effect that the premises in question formerly belonged to Charles R. Young, and were conveyed by him to his father and mother, William R. Young and Addie C. Young. Charles R. Young’s testimony is to the effect that he was indebted to his father and had conveyed said premises for the purpose of securing his father therefor. This evidence is undisputed in the record. The joint answer filed by plaintiffs in error admits that Charles R. Young executed a lease on said premises to Bricker. The evidence is further to the effect that plaintiffs in error resided within some 150 or 200 yards from the premises in question. We are therefore of the opinion and hold that the court was warranted in finding constructive, if not actual, notice on the part of Addie C. Young, of the work being done on said premises.

Therefore, plaintiffs in error having knowledge of the improvements being made on said premises, a mechanic’s lien would lie therefor, if said improvements were of a character for which a lien is given. Cahill’s St. ch. 82, 1; Haas Electric & Mfg. Co. v. Springfield Amusement Co., 236 Ill. 452-459; Boyer v. Keller, 258 Ill. 106-113; Loeff v. Meyer, 284 Ill. 114-117; Fehr Const. Co. v. Postl System of Health, 288 Ill. 634-643.

It is not contended by plaintiffs in error that said heating plant, lavatories, shower bath and other plumbing work done by defendant in error Bergner are not improvements of a character for the installation of which a mechanic’s lien would lie. The only argument against the lien for said items is that the heating plant and other work was not necessary, and did not increase the value of the premises. Plaintiffs in error, having been advised of the character of the heating plant and plumbing work being installed in said premises and not having objected thereto, are not now in a position to defend against a mechanic’s lien therefor on the ground that said work was not necessary. Haas Electric & Mfg. Co. v. Springfield Amusement Co., supra, 459; Fehr Const. Co. v. Postl System of Health, supra, 643.

It is contended by plaintiffs in error, as to the claim of Kelahan, that the electric sign, for which $270 was to be paid, was not so affixed to said building as to become a part of it, and that no mechanic’s lien should be awarded therefor. They further object to certain other items, to wit, $9 for work done on a sanding machine, $15.20 for stringing certain lights in front of said buildings, and for the cost of installing said electric lighting system, estimated at something around $100.

The evidence on the part of Kelahan is to the effect that before said contract for said electric sign was let by Bricher, he submitted the plan therefor to plaintiff in error Charles R. Young, and had his approval thereof. That being true, so far as plaintiff in error Charles R. Young is concerned, he is not in a position to complain.

On the merits, however, we hold that if this electrical work, including said electric sign, was installed on the premises in question with the knowledge of plaintiffs in error and without objection on their part, a mechanic’s lien would lie therefor.

Without reference, however, to the correctness of this later holding, the decree in this case should be affirmed with reference to the amount allowed to defendant in error Kelahan for said work, for the reason that $500 was paid thereon by Bricher, leaving a balance of only $239.80 owing on said work. So far as the record discloses, there was no direction by Bricher when he made said payment of $500 as to how the same should be applied, that is, as to what particular items of said bill of $739.80 the same should be applied in payment of. That being true, a court of equity may apply the payment upon the contract so as to include work for which the creditor would not under the contract be entitled to a mechanic’s lien, and thus give him the security of a mechanic’s lien upon the amount remaining unpaid. Monson v. Meyer, 190 Ill. 105-108; Barbee v. Morris, 221 Ill. 382-384; Schmeling v. Rockford Amusement Co., 154 Ill. App. 308-312; Fehr Const. Co. v. Postl System of Health Building, 189 Ill. App. 519-524. In the latter case the court at page 524 says:

“The question of value is material because there was paid on this contract the sum of $350; and a court of equity, if it could distinguish between lienable and nonlienable items in a bill for mechanic’s lien, would apply that payment to the nonlienable articles under the contract so as to leave the creditor with his security of a mechanic’s lien for the lienable items.”

Applying the payment of $500 made by Bricker toward the payment of the items for which plaintiffs in error claim there could be no lien, the remainder of said bill clearly comes within the rule laid down in the authorities cited. The court therefore rightly decreed a mechanic’s lien therefor.

For the reasons above set forth, the decree of the trial court will be affirmed.

Decree affirmed.


text:
    Louis J. Oehler et al., Appellants, v. Andrew Serbian, Appellee.
    1. Instructions — duty of one desiring instruction to request it. In an action by the heirs of an estate against their father’s judgment debtor, to which he pleaded bankruptcy exemption and they replied for a new promise, the court is not required of its own motion to insert in an instruction that the jury find the issues on the attachment in favor of the defendant a cautionary instruction that this had nothing to do with the case’s merits; after practically conceding there was no sufficient basis for the attachment, it was plaintiffs’ duty, if they wished the cautionary instruction inserted, to present it to the court.
    2. Bankruptcy — to whom new promise reviving debt given. A new promise of one discharged in bankruptcy to answer for a judgment obtained against him before the discharge, to make him liable therefor must be made to the party whom he owes or to the latter’s agent or attorney.
    3. ’ Bankruptcy — admissibility of evidence as corroborative of new promise. The court was in error in striking testimony, in an action on a judgment obtained against a bankrupt before his discharge, that he had told a disinterested party that he intended to pay the judgment, for this tends to corroborate other testimony that the debtor made a promise to pay, after his discharge, to the executor of the judgment creditor’s estate.
    4. Instructions — inapplicability to issues. The only issue in an action by the estate of a judgment creditor against a bankrupt for judgment obtained before his discharge was that of discharge and the reply of a new promise, hence the court erred in instructing that all debts owing by the bankrupt prior to the bankruptcy were discharged thereby.
    Appeal by plaintiffs from the Circuit Court of Alexander county; the Hon. A. E. Somers, Judge, presiding. Heard in this court at the October term, 1926.
    Reversed and remanded.
    Opinion filed February 19, 1927.
    Charles L. Bice and D. B. Beid, for appellants.
    M. J. O’Shea and Asa J. Wilbourh, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court. An action in assumpsit was instituted by Louis J. Oehler, as executor of the estate of William Oehler, ■deceased, against appellee in the circuit court of Alexander county, to recover the amount of a certain judgment rendered in favor of William Oehler in his lifetime against appellee.

The declaration consisted of the common counts and one special count, which said special count alleged that there had been an accounting between appellants and appellee, and that the amount found due on such accounting was $993.05. To said declaration appellee filed the general issue and a special plea, setting forth that on June 5, 1922, appellee was discharged as a bankrupt by the United States District Court. To said special plea appellant Oehler, as such executor, replied a new promise by appellee to pay said indebtedness, made after the issuance of said order. A trial was had, resulting in a verdict and judgment in favor-of appellee. To reverse said judgment, appellants prosecute this appeal.

It developed on the trial that Louis J. Oehler had been discharged as the executor of said estate, and by leave of court appellants, the children and only heirs at law of said deceased, were substituted as parties plaintiff.

At the close of appellants’ evidence, the court directed the jury to find the issues on the attachment in favor of appellee. It is the contention of appellants that this instruction should not have been given without a cautionary instruction to the effect that the giving of said instruction had nothing to do with the trial of the case on the merits. Appellants practically concede that there was no sufficient basis for the attachment in aid. This being true, if appellants felt that such an instruction should have been given, it was their duty to have presented the same to the court. It was not necessary for the court to give such instruction of its own motion. Illinois Cent. R. Co. v. Atwell, 198 Ill. 200-204; Chicago & A. Ry. Co. v. Hatfield, 109 Ill. App. 556-559; E. B. Conover & Co. v. Baltimore & O. S. R. Co., 212 Ill. App. 29-36. The court did not err in giving said instruction.

It is next contended by appellants that the court' erred in excluding the testimony of the witness Dan F. McCarty, who testified on behalf of appellants to the effect that he had a conversation with appellee in the spring of 1924, in which appellee said, among other things: “He (appellee) told me he would pay him (William Oehler).” Counsel for appellee insists that the court did not err in excluding this evidence, for the reason that a new promise, in order to make a discharged bankrupt liable, must be made to the party to whom the indebtedness was owing, or to his agent or attorney."

This statement of the law governing promises of this character, we believe to be correct. 3 R. C. L. ft 147. We hold, however, that the court should not have stricken this testimony for the reason that it tends to corroborate other testimony in the record tending to show a definite promise to pay such debt, made by appellee to Louis J. Oehler, former executor of said estate.

In St. John v. Stephenson, 90 Ill. 82, there had been a discharge in bankruptcy of the party sued, and the question was as to whether there had been a binding promise made by the debtor to pay the debt, after such discharge. The court at page 84 had this to say with reference to the testimony of a third party:

“Appellee (the creditor) is corroborated by Ezra Chapman, whom appellant’s counsel concede to be a most excellent and worthy man. Chapman says: ‘ * * * Mr. St. John was at my house, and in our conversation I asked him what he was going to do with Stephenson, and if I recollect right he said he was going to pay him, or help him.’ * * *

“On cross-examination Chapman said: ‘He said, “I am going to pay, yes, I am going to help him.” ’ ”

While the question of the admissibility of this evidence was not definitely raised, the court gave weight to it, and evidently deemed it to bé competent. The conversation of a party to a suit, relative to the subject matter of the same, is admissible in evidence against him. Morris v. Jamieson, 205 Ill. 87.

It is next insisted by appellants that the court erred in giving to the jury the second instruction given on be-' half of appellee, said instruction being as follows:

“You are instructed that the Final Discharge introduced herein and issued by the United States Bankrupt Court for the Eastern District of Illinois, is a bar or discharge of the defendant, Serbian, as bankrupt of all debts and obligations, and including the judgment or account of plaintiffs up to the time that the same was issued by said Bankrupt Court, and as to any judgment, claim or account of the said plaintiffs against the defendant Serbian up to and before that time, you will find that such Final Discharge is a full release and bar and no recovery can be had by the plaintiffs as to any such debts, claim or judgment or account, at or before the time the same was issued.”

The only issue in this case was the issue made by the special plea, setting up appellee’s discharge in bankruptcy, and the reply thereto, alleging a new promise. That being the state of the record, the giving of this instruction was clearly misleading. There was no occasion for instructing the jury that there was no liability on appellee’s part to pay any obligations he might have owed prior to his discharge in bankruptcy. That was conceded, and was not an issue in the case. The issue was as to whether or not there had been a new promise. This instruction made no reference whatever to the question of the liability of appellee, if a new promise had been made. Aside from the fact that the instruction is not applicable to the issues, it is involved and abstruse in its construction. We are of the opinion and hold that the court committed reversible error in giving the same.

We express no opinion on the weight of the evidence, further than to say that the evidence was conflicting, and that the instructions should have been accurate and applicable to the issues in the case.

For the reasons above set forth, the judgment of the trial court will be reversed and the cause will be remanded.

Reversed and remanded.