author: Per Curiam.

text:
    Claus Wickstrom, Appellee, v. Ringling Bros., Barnum and Bailey Combined Shows, Inc., Appellant.
    Gen. No. 41,597.
    Opinion filed March 18, 1942.
    Bennett & Colbach and Moses, Kennedy, Stein & Bachbach, all of Chicago, for appellant; Ebnest C. Reniff, Herbert H. Kennedy and Robert M. Wood, all of Chicago, of counsel.

      Francis J. Gariepy and Charles E. Mallon, both of Chicago, for appellee.
   Per Curiam.

This is an appeal prosecuted by the defendant from a judgment for $6,500 entered by the court (upon a remittitur of $3,500 entered by plaintiff) upon a jury verdict in the sum of $10,000, in a personal injury action.

The complaint alleged in substance that on July 23, 1939, the defendant was engaged in conducting a circus performance; that plaintiff attended this circus, paid an admission, and was directed to occupy a seat in the general admission temporary grandstand at the south end of the main tent; that at all times the plaintiff was in the exercise of due care and caution for his own safety; that it was the duty of the defendant (1) “to furnish plaintiff a reasonably safe means of approach to secure a seat in said stand,” and (2) “to furnish plaintiff a reasonably safe place to sit in order to view said circus performance”; but that the defendant notwithstanding this duty negligently, carelessly and improperly (1) “Failed to provide plaintiff a reasonably safe means of approach to secure a seat in said stand”; (2) failed “to provide a reasonably safe place to sit”; (3) “maintained temporary stands for plaintiff and others to sit without providing any footboards or other suitable means to enable them to get to a seat in said stands”; and (4) “directed and required plaintiff to change his seat at said performance without providing any reasonably safe means to secure another seat.”

It is further alleged that while plaintiff was in the act of securing a seat in the upper part of the general admission temporary grandstands, the plaintiff was caused to and did fall through the temporary stands to the ground by means of said negligent, careless and improper acts aforementioned, and sustained certain injuries.

The defendant’s answer denied that any of the alleged injuries to plaintiff resulted from any of the alleged negligent, careless or improper acts set forth in the complaint, and further denied that plaintiff was in the exercise of due care and caution for his own safety at the time of the alleged accident.

From the "facts called to our attention it appears that on the afternoon of July 23, 1939, at 2:00 p.m., the plaintiff, a man 56 years old, employed 27 years with the Chicago Surface Lines, attended a circus performance given hy defendant just south of Soldier’s Field in Chicago. Plaintiff’s health was good and he attended the circus alone, purchasing a general admission ticket for $1.10 to the main performance in the big* tent. This main tent was about a block long and a block wide, and all the shows went on in the center of the tent. The reserved seats were in the middle of the tent on either side of the three rings. The general admission seats were at the south end of the main tent. When he got there, the usher directed him to take a seat about ten boards up. Plaintiff walked up about ten boards and sat down near the aisle, the aisles being* marked by white lines painted on the boards. The hoards, or planks, making up the seats in the bleachers were about six to eight inches in width and about two feet apart. The elevation from the lower seat to the next seat above was about eight or ten inches, with a space of about two feet between the seats. When plaintiff sat down on the tenth row where he had been told to sit by the usher he was approximately 20 feet above the ground. When he sat down, there was no one in the seat below him and he put his feet on the board below, believing that to. be the footboard. After sitting there for about ten minutes, an usher came and told him to move over. He put his hands to either side of his body on the board on which he was sitting and, keeping his feet on the board below, slid over “nice and easy” two or three feet. About ten minutes later, the usher came again and told plaintiff to move over farther to his right. In the meantime, the usher had filled the board below with people, and plaintiff had to take Ms feet off, leaving them hanging in the air between the board on which he was sitting and the board below. This time plaintiff moved along in the same manner as the first time and put Ms hands on the boards, but lost his balance and slipped in between the boards, falling to the ground and thus sustaining injuries. After he fell, an usher came and took him to the doctor on the premises, who examined him and then took plaintiff and gave him a seat in the reserved seat section. Here there were regular folding chairs with a wooden platform underneath and no open space between the boards. The pain in Ms back became so intense that plaintiff had to leave the show before it was over and returned to his home. The next morning Ms family doctor was called, and plaintiff was taken to St. George’s Hospital where X-rays were taken, which showed compression fractures of the 1st, 2nd, 4th and 5th lumbar vertebrae. Plaintiff was placed in a body cast which was kept on until August 19, 1939. He remained at home until October 24, 1939, when he returned to work part time, and he was still working only part time on the date of the trial because his back still hurt him. He could not straighten his back, and had a 10 per cent to 15 per cent restriction of motion in his back which his doctor considered permanent.

The defendant suggests upon the facts in evidence that no duty existed to protect a patron of a circus against all hazards; that the patron is not relieved of all duty towards himself for his own safety, and that, to the extent that the duty of self-protection rests upon the patron, the duty of the proprietor of a circus is reduced. It is further urged that the extent of these relative duties depends on many factors involving the capacity and opportunity of the proprietor to protect the patron and the capacity and opportunity of the patron to protect himself.

The defendant goes on to argue this phase of the case and says that in the instant case one is confronted with the relative duties of persons sui juris and equally cognizant of all the hazards of the situation in which the plaintiff has placed himself by his voluntary act, and that neither the plaintiff nor defendant have misled the other. That this is not a case where an invitor has superior knowledge of some hazard and has failed to guard or warn an inexperienced invitee against it. It is further stated that it is not a case where there is some defect in the condition of the premises of which the invitor alone had knowledge. The evidence discloses that the plaintiff was not obligated to sit or remain in the bleachers since other seats with backs and more comfortable foot rests were provided at a slightly higher charge. It is contended that defendant discharged his full duty to the plaintiff in safeguarding him from any danger which might have existed in connection with the manner in which the bleachers were constructed by providing reserved seats where the plaintiff might have sat had he so desired and leaving the choice to the plaintiff between these seats, even at increased prices, and the bleacher seats at the general admission charge. This is not altogether a fair argument that plaintiff could have fully protected himself by taking the opportunity to obtain reserved seats, at increased prices, which were more fully protected and not subject to the dangers of the bleacher seats which6 were to be used by the ' patrons at the general admission charge. The sole questions as we understand the rule, is whether the defendant was guilty of negligence in failing to provide the plaintiff a reasonably safe place to sit, whether the defendant negligently maintained temporary ■ stands for plaintiff to sit in without providing any footboard or other safeguard, and whether defendant negligently directed and required plaintiff to change his seat at the performance without providing any reasonably safe means to secure another seat. These questions were all proper to be submitted to the jury under the evidence in the case.

When we consider the evidence in this case, we find that the plaintiff was directed by the usher to take a seat in the tenth row of the so-called bleacher boards. Plaintiff walked up about ten boards and sat down near the aisle. While sitting in this seat about 10 rows' up, the plaintiff was about 20 feet above the ground. The boards which were used for seats were six inches wide, and each board was about 10 inches above the other. The space between -the boards was estimated at two feet.

At the time plaintiff took his first seat, there was no one in the seat below him, and he put his feet on the boards below, believing this to be the footboard, nothing appearing to indicate that no footboards were provided upon which to rest his feet. It appears from the record that plaintiff had never seen this circus and did not know what kinds of seats there were before he entered the circus. After plaintiff had been seated for about ten minutes, an usher came and told him to move over. Plaintiff put his hands to either side of his body on the board on which he was sitting and keeping his feet on the board below, slid over two or three feet. However, in a few minutes the usher came again and told plaintiff to move over farther to the right. In the meantime the usher had filled the board below with people, and plaintiff had to take his feet off, leaving them hanging in the air between the board he was sitting on and the board below. From the record it appears that this was the first time plaintiff realized that he would have no footboard upon which to rest his feet. It was thus, while his feet were hanging free in the air, that he was directed by an usher to move over for the second time. Plaintiff moved along as he did the first time and slid over by placing both his hands fiat on top of the board on which he was sitting. ' He pulled with his right hand and pushed with his left. While thus moving over, plaintiff lost his balance and fell between the boards to the ground below. He fell on his back and, as we have heretofore indicated in this opinion, was examined by a doctor on the premises and then given a seat in the reserved seat section. As a result of the fall the pain became so severe that plaintiff had to leave the show before it was over. X-rays were taken which showed compression fractures of the 1st, 2nd, 4th and 5th lumbar vertebrae.

There was, therefore, submitted to the jury the facts that plaintiff was a paid patron; that he was told where to sit by defendant’s ushers; that the board on which he sat was six inches wide; that there was no footboard between the rows of seats; that the board which plaintiff originally thought was a footboard and used as such, was filled with other patrons after plaintiff had been seated for some time; that when plaintiff fell while moving over the second time his feet were hanging in the air; that when he fell it was not during any voluntary change of seats on his part but was upon the direction of defendant’s usher; and that there was an open space of two feet, through which plaintiff fell. This would, therefore, seem to be a question of fact as to whether the plaintiff was in the exercise of due care for his own safety and as to whether defendant was negligent in respect to the condition as appeared, considering the number of patrons present. Surely the plaintiff was not guilty of contributory negligence from anything which we find from this record.

When we come to apply the law to the facts of this case, we find in the case of Schenkl v. Sheffield Theatre Co., 291 Ill. App. 603 (Abst.), that it was said by the court on matters pertaining to the duty of an operator of a place of public entertainment, as follows:

“Applying this rule to the facts of this case, we do not entertain a doubt that the court did not err in refusing at the close of the evidence to grant the motion of the defendants for an instructed verdict in their behalf. Considering (as we must in passing on such a motion) the evidence in the light most favorable to plaintiff with all inferences to be drawn therefrom, we think the jury could reasonably find that defendants were negligent with respect to one or more of the matters charged in the first three counts submitted to the jury; that plaintiff was in the exercise of due care for her own safety, and that the negligence of defendants was the direct and proximate cause of the injuries which plaintiff received at that time.” Applying the rule as adopted by this court, it would seem that plaintiff was in the exercise of due care for his own safety and that it is a question of fact whether the defendant was negligent in building these bleachers and failing to provide for a foot rest and in leaving an open space of two feet between the bleacher boards and directing the plaintiff to move over causing him to lose his balance and fall as Ave have indicated, to the ground beIoav, thus sustaining the injuries complained of.

A suggestion is offered by plaintiff’s brief that, whether there Avere reserved seats or not, the defendant still oAved a duty of reasonable care toAvard those occupying the general admission seats. They were on the premises at the invitation of defendant; they had paid their $1.10 for their seats; and they, too, just as reserved seat patrons, Avere entitled to a safe place in Avhich to sit in order to view the performance. To furnish a reasonably safe place to sit it was the duty of defendant to supply the patrons with a foot rest so that they could go to and from their seats on these bleachers and to change seats if necessary without endangering their safety.

There is another contention called to our attention by defendant that the plaintiff was guilty of contributory negligence as a matter of law. A rather interesting suggestion is offered that either the negligent manner in which the plaintiff conducted himself in changing his position from the seat where he had been sitting or the actions of other patrons in moving against or sitting alongside of the plaintiff in the same row, was the independent act which proximately caused this accident. So far as we can determine, there was nothing in the evidence to indicate that the actions of other patrons was in any way responsible for causing plaintiff to fall. The thing that caused him to fall was the request of the usher that he move, and in moving over the plaintiff was caused to fall between the bleachers. The accident ivas caused by the construction of these bleacher seats and the open space between the seats which permitted plaintiff to fall through for want of foot rests, in making the change as requested by the usher. However, it appears that the question of plaintiff’s contributory negligence under the facts in the record was properly submitted to the jury as a question of fact. There is nothing in the record to make it a question of law, it only becoming a question of law when it can properly be said that all reasonable minds would reach the conclusion under the facts stated that such facts did not establish due care and caution on the part of the plaintiff. (Thomas v. Buchanan, 357 Ill. 270; Hill v. Richardson, 281 Ill. App. 75.)

A further contention made is that the trial court erred in refusing to permit the defendant to introduce evidence that the seats in question were the standard type of seats used by circuses as general admission seats and that the same had been inspected and approved by a municipal inspector. The question of importance here is whether defendant had exercised reasonable care in providing plaintiff a safe place to sit. Of course, it is the established rule that the defendant owed to plaintiff the duty of furnishing seats which were reasonably safe for the purpose for which they were intended and the purpose for which they were likely to be used by the spectators. Under the law, reasonable care is the proper standard. The question of whether the seats used were of the standard type used by circuses as general admission seats would not prove ordinary or reasonable care under the facts of a particular circus or the circumstances surrounding a particular case.

The defendant raises <be other question as to whether the court erred in excluding testimony that the seats in question had been inspected and approved by a park district employee. As suggested, there is some force to the contention of plaintiff that the approval of the defendant’s witness, from his inspection of the seats, was simply an expression of his own personal opinion as to their safety. It does not appear that he was guided by any ordinance or building code or specifications, nor was it shown what kind of inspection he had made before he approved them. Under the circumstances, the court was fully justified in sustaining the objection of plaintiff to the admissibility of his testimony as an expert witness.

There are objections, made to the admissibility of certain evidence of the plaintiff, but we find no such erroneo'us ruling in this regard as would justify the reversal of this cause. We have given it careful consideration and the authorities submitted by the parties have been studied. We have reached the conclusion that there was no error which would justify the reversal of the judgment, and are satisfied that the judgment for plaintiff be affirmed. 0

Judgment affirmed.

Per Curiam.


source: Caselaw Access Project

author: Justice Culbertson.

license: Public Domain

text:
    F. C. Bryant, Administrator of Estate of Merle Bryant, Deceased, Appellee, v. Donald Taylor and William C. Taylor, Copartners, Trading as William Taylor Drilling Company, Appellants.
    opinion filed March 2, 1942.
    Pope & Driemeyer, for appellants; Ward P. Holt and John B. Kramer, for appellee.
   Opinion by

Justice Culbertson.

“Not to be published in full.”


text:
    John Dowson, Appellant, v. Walter Smith, Appellee.
    opinion filed March 2, 1942.
    Ward P. Holt and John B. Kramer, for appellant; Wham & Wham, for appellee; Charles Wham and George V. Kemp, of counsel.
   Opinion by

Justice Culbertson.

“Not to be published in full.”


text:
    Horace McCaughan, Administrator of Estate of Pete McCaughan, Deceased, Appellee, v. Stanley Boswell, Appellant.
    opinion filed March 2, 1942;
    rehearing denied April 1, 1942.
    B. Wallace Karraker and Gordon Franklin, for appellant; Grover E. Holmes and Ford L. Bendleman, for appellee.
   Opinion by

Justice Culbertson.

“Hot to be published in full.”


text:
    E. Frank Jones et al., Appellees, v. Jos. Greenspon’s Son Pipe Corporation, Appellant.

      opinion filed March 2, 1942;
    rehearing denied March 26, 1942.
    MeGlynn & MeGlynn and Taylor, Mayer, Shifrin & Wilier, for -i appellant; John J. Hoban and Ben L. Shifrin, of counsel; Harry C. Moore and Andrew O. Niehoff, for appellees.
   Opinion by

Justice Culbertson.

“Not to be published in full.”


author: Justice Dady.

text:
    Ella Freeman, Appellant, v. Leader Mercantile Company, Appellee.
    opinion filed March 2, 1942.
    Wliitnel, Browning, Listeman & Walker and Manuel M. Wiseman, for appellant; Altman & Bremser, of counsel; Lashly, Lashly, Miller & Clifford and Kramer, Campbell, Costello & Wiechert, for appellee; Oliver J. Miller, of counsel.
   Opinion by

Justice Dady.

“Not to be published in full.”


text:
    A. H. Sebastian, Appellant, v. School Directors of District No. 17, County of Marion, Illinois, Appellees.

      opinion filed March 2, 1942.
    William A. Miller and Alfred S. Pfaff, for appellant; no appearance for appellees.
   Opinion by

Justice Dady.

“Not to be published in full.”


text:
    St. Anthony’s Hospital of Sisters of St. Francis, Inc., Appellant, v. County of Fayette and Town of Avena in County of Fayette, Appellees.
    opinion filed March 2, 1942.
    Parker, Bauer & Parker, for appellant; Robert G. Burnside, State’s Attorney, and J. Richard Royal, Assistant State’s Attorney, for appellee.
   Opinion by

Justice Dady.

“Not to be published in full.”


text:
    Kassly Undertaking Company and John Kassly, Appellees, v. Flxible Company, Appellant.

      opinion filed March 2, 1942;
    rehearing denied April 1, 1942.
    MacDonald, Meyer & Meyer, for appellant; Stanford S. Meyer, of counsel; Louis Beasley and Edward C. Zulley, for appellees.
   Opinion by

Justice Dady.

“Not to be published in full.’’


author: Justice Hebel.

text:
    Hallie E. McCowan, Appellee, v. Don C. McCowan, Appellant.
    Gen. No. 41,819.
    opinion filed March 18, 1942.
    Irving Breakstone, for appellant; William Rosenthal, of counsel; Brooks, Coleman & Peterson, for appellee; Robert L. Pendergast, of counsel.
   Opinion by

Justice Hebel.

“Not to be published in full.”


author: Justice Kiley.

text:
    Betty Lois Smith, Appellee, v. Ferdinand J. Karasek et al., Appellants.
    Gen. No. 41,681.
    opinion filed March 18, 1942.
    Oscar M. Meusel and Ferdinand J. Karasek, pro se; Erich E. Paeyna, for appellee.
   Opinion by

Justice Kiley.

“Not to be published in full.’’


author: Mr. Presiding Justice Stone

text:
    In re Estate of Fatimma Herrin, Deceased, et al., Appellants, v. Everett Stocks, Administrator of Estate of Fatimma Herrin, Deceased, Appellee.
    Heard in this court at the October term, 1941.
    Opinion filed March 2, 1942.
    Rehearing denied April 15, 1942.
    A. D. Morgan, of Herrin, for appellants.

      Snyder E. Herrin, of Herrin, and Stone & Fowler, of Marion, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Williamson county, in the matter of the estate of Fatimma Herrin, deceased, wherein said court denied the petition of John Herrin and Cora Dawson, appellants (hereinafter designated as petitioners) for the revocation of letters of administration theretofore issued in the county court of Williamson county, to Everett Stocks, appellee (hereinafter designated as respondent), administrator of the above estate.

It appears from the record that Fatimma Herrin died intestate January 7, 1939, leaving surviving her, four children, John Herrin, Cora Dawson, the petitioners; Jeff Herrin and Mark Herrin. Fatimma Herrin was preceded in death by her husband, Ephraim Herrin, who died January 5, 1918, leaving surviving him the widow, and the four children as above. His will disposed of considerable property, and provided that his son, John Herrin and widow, Fatimma Herrin, should be co-executors and trustees of the estate; that his widow should have a life estate with power to sell any property and that after her death, John Herrin was to continue to act as executor and trustee.

Upon the death of Fatimma Herrin, — Jeff Herrin, Cora Dawson and John Herrin, met at the home of Cora Dawson, where the deceased had made her home and where she died, and each of them picked out certain articles, the property of the mother, that they wanted and Jeff Herrin picked out certain things for Mark Herrin, who then lived in Colorado. The value of these articles seems to have been very nominal. This settlement seemed agreeable to all concerned. The funeral expenses, digging of the grave, construction of the vault and expenses of last illness of Fatimma Herrin, were all paid by John Herrin, out of the estate of Ephraim Herrin.

On October 18,1939, a petition was filed in the county court of Williamson county, by Jeff Herrin, stating that Fatimma Herrin died January 7, 1939, intestate, leaving personal estate consisting of wearing apparel, household goods and personal ornaments to the value of about $500, and asked that Everett Stocks be appointed administrator of her estate. Stocks filed his bond and oath and letters of administration were issued to him.

On October 24, 1939, John Herrin and Cora Dawson filed their petition in the county court, asking for the removal of Everett Stocks as administrator of the estate of Fatimma Herrin, and at the same time a petition was filed by Cora Dawson, setting forth that Fatimma Herrin died intestate and possessed of real and personal estate consisting chiefly of certain choses in action, all of said personal estate being estimated to be worth $500. Various motions were filed, a consideration of which is not material here. Eventually, an amended petition was filed by petitioners, John Herrin and Cora Dawson, which prayed for the revocation of the letters of administration to Everett Stocks, upon the ground that said letters were granted to him upon false pretenses made by Jeff Herrin in his petition for the appointment of the said Stocks; that the said Jeff Herrin had falsely represented that Fatimma Herrin died seized of personal property consisting chiefly of wearing apparel, household goods and personal ornaments, worth about $500; that the said Fatimma Herrin was not so possessed of this property at the time of her death, all of which was known to the said Jeff Herrin.

The amended petition further set forth that no administration was necessary on the estate of Fatimma Herrin, for the reason that all claims against the estate were paid by John Herrin, surviving executor of the last will and testament of Ephraim Herrin, with the knowledge and consent of the other heirs; that the other heirs allowing that to be done and being under no disability and of lawful age waived any alleged right to administer; that the said petition of Jeff Herrin was null and void for the reason that said petition was not joined in by a majority of the other heirs. Failure of the trial court to take cognizance of this last proposition was not assigned as error and not argued here.

After a hearing in the county court on amended petition and answer thereto, an order was entered by said court denying the prayer of the petition. From this judgment petitioners prosecuted an appeal to the circuit court of Williamson county, which court heard the matter ele novo and entered judgment denying the prayer of the amended petition, from which judgment appeal was prosecuted to this court.

It is the contention of petitioners, in this court, that under the will of Ephraim Herrin, deceased, there were no assets in the possession of Fatimma Herrin, at the time of her death, which at law could be considered as property belonging to her. At one place in their brief counsel for petitioners say that the petitioners are vitally interested in the estate of Ephraim Herrin. This court does not feel constrained in this case, in any way to construe the will of Ephraim Herrin. It is also hinted that the court should approve the family settlement alleged to have been entered into. It is our understanding from the evidence that the property in controversy, which was to have been administered upon by Everett Stocks, as administrator of the estate of Fatimma Herrin, was property that was not involved in the estate of Ephraim Herrin, nor in the so-called family settlement.

In the county court, Cora Dawson, one of the petitioners filed a verified petition, asking that she be appointed administrator of the estate of Fatimma Herrin, setting forth that the said Fatimma Herrin died possessed of personal estate, consisting chiefly of certain chose in action, estimated to be worth about $500. In the hearing in the circuit court, Cora Dawson admitted signing said petition. The other petitioner, John Herrin, testified in the same hearing that Cora Dawson and he executed a motion in the county court and along with the motion, he filed the petition of Cora Dawson for letters of administration.

Parties may not thus shift their ground. A litigant cannot try a case on one theory in the trial court and on another theory in a court of review. Levy v. Payne, 208 Ill. App. 141; Lanser v. Fidler, 158 Ill. App. 94; Lewy v. Standard Plunger Elevator Co., 296 Ill. 295, aff’g 218 Ill. App. 306. Petitioners can hardly be heard to argue in this court, that no administration was necessary because there was no property, when they presented to the county court, the petition, under oath of Cora Dawson, representing that there was an estate estimated at $500, and such fact was admitted in the circuit court. What that property consisted of, was not required to be described in the petition for letters, only the amount of value of the personal estate being required. Section 20, chapter 3, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 110.020]. What the personal estate consists of, is the office of the inventory required by statute.

The only real question presented here, for the consideration of this court, is whether the trial court erred in denying the petition of John Herrin and Cora Dawson, for a revocation of the letters of administration issued to Everett Stocks, because of false pretense on the part of Jeff Herrin, in the obtaining of those letters. The county court is powerless to revoke letters of administration for any other than statutory causes, and it has no jurisdiction to act until some one of the causes mentioned by the statute are presented to it. Munroe v. People for use of Young, 102 Ill. 406; Clark v. Patterson, 214 Ill. 533; In re Estate of Hebblethwaite, 293 Ill. App. 493,12 N. E. (2d) 923.

In the testimony of the two petitioners, the only testimony abstracted to any .extent, might well in the opinion of the trial court have failed to show any such false pretense on the part of Jeff Herrin as would justify a revocation of the letters of administration to Everett Stocks. John Herrin testified that he never heard of any other personal estate belonging to Fatimma Herrin, except through the petition of Jeff Herrin. Cora Dawson testified that she did not know of any other estate until the filing of the petition by Jeff Herrin. This testimony would hardly justify the trial court in finding that in accordance with the allegations of the amended petition, Jeff Herrin had falsely represented that Fatimma Herrin had died seized of personal estate worth $500 and that he knew that such statement was untrue at the time he made it, particularly as the value of the estate was the only necessary allegation in the petition for letters and both Cora Dawson and John Herrin had represented to the county court that Fatimma Herrin did have an estate valued at $500. The judgment of the trial court is conclusive on all questions of fact, if not manifestly against the weight of the evidence. Paterson v. Whitney, 67 Ill. App. 290; Shapleigh Hardware Co. v. Enterprise Foundry Co., 305 Ill. App. 180, 27 N. E. (2d) 1012. We do not believe that the finding of the court in this case was contrary to the manifest weight of the evidence. On the record before us there can be no other conclusion reached than that the judgment of the trial court should be sustained.

Affirmed.


text:
    G. W. Johnson, Appellee, v. Ben Campanella, Appellant.
    Heard in this court at the October term, 1941.
    Opinion filed March 2, 1942.
    Rehearing denied April 15, 1942.
    Harold N. Harrison, of Benton, and Hugh V. Murray, Jr. and Lester B. Carlson, both of Centralia, for appellant.
    Ward P. Holt and John B. Kramer, both of Salem, for appellee.
   Mr. Presiding Justice Stone

The original suit herein was filed in the circuit court of Marion county, as a narr and cognovit action, by Joe Blalack, asking for a judgment in the sum of $6,946.50 against Ben Campanella, appellant (hereinafter designated as defendant), on a demand note, dated June 29, 1939, for $6,000, executed by Ben Campanella to A. F. Grohe, as payee, which note was indorsed by said Grohe and delivered to G. W. Johnson, appellee (hereinafter designated as plaintiff). After judgment was entered by confession, on motion of the defendant, the court permitted the case to be reopened and tried on its merits. After the institution of the suit and the reopening of the case, G. W. Johnson, having reacquired the note was substituted as plaintiff.

The case was tried before a jury which returned a verdict of $6,570. Judgment was entered thereon and this appeal followed.

Plaintiff’s theory of this case, as evidenced by the testimony of G. W. Johnson, was that plaintiff acting as the attorney in fact for R. E. Davis, acquired a lease upon a piece of ground known as the Chitwood strip for approximately $20,000 and thereafter assigned a three-eighths interest in the lease to A. F. Grohe in exchange for which Grohe agreed to pay him $15,000, and agreed to drill an oil well on the leasehold. Thereafter Grohe assigned an undivided one-eighth interest in the lease to Ben Campanella, for which Campanella paid Grohe $6,000 in cash and made and executed a demand note in the sum of $6,000 and delivered same to Grohe.

Johnson and Grohe had purchased some leases near Keensburg, Illinois, upon which Grohe was indebted to Johnson in the sum of $10,000. Several notes were made by A. F. Grohe to Johnson and renewed, but never paid. , Upon Johnson pressing Grohe for payment of this $10,000 indebtedness, Grohe asked him for additional time and gave Johnson the $6,000 demand note as additional security for the payment of his indebtedness of $10,000. This note was transferred to plaintiff the last few days in January 1940, and was dated June 29, 1939.

Defendant’s theory was that at the time Campanella executed the note involved in this suit, Grohe signed and gave to Campanella a letter acknowledging that there was to be no liability on the note until Grohe had completed a well on the Chitwood strip. No well was completed there and it is claimed that when, after the lapse of some six months Grohe indorsed the note and delivered it to plaintiff, that Johnson had full knowledge of the circumstances under which the note was delivered, and did not become a holder in due course thereof, and hence was not entitled to recover on the note.

It is the contention of counsel for defendant that plaintiff could not be held to be a holder in due course for the reason that the note was a demand note and was negotiated an unreasonable length of time after its issue; that as a matter of law, from the • facts and circumstances Grohe and Johnson were partners and all knowledge that Grohe had in relation to the note including the defenses to which the note was subject, must be imputed to Johnson.

Section 53 of the Negotiable Instruments Law (Ill. Rev. Stat. 1939, ch. 98, par. 73; Jones Ill. Stats. Ann. 89.073) provides: “Where an instrument payable on demand is negotiated an unreasonable length of time after its issue, the holder is not deemed a holder in due course.” Section 192 (Ill. Rev. Stat. 1939, ch. 98, par. 215; Jones Ill. Stats. Ann. 89.215) of the same act provides: “In determining what is a 'reasonable time’ or an 'unreasonable time,’ regard is to be had to the nature of the instrument, the usage of trade or business (if any), with respect to such instruments, and the facts of the particular case.” Counsel for defendant contend that it should be the judgment of the court that as a matter of law, in the absence of special circumstances, the negotiation of an instrument payable on demand more than six months from the date of its issue be regarded as a negotiation an unreasonable length of time after its issue, so that the taker of the instrument cannot be regarded as a holder in due course. Counsel for plaintiff insist that it is a question of fact for the jury.

It is a well-established principle of law in this State that what is a reasonable length of time is a question of fact for the jury. Nagle v. J. L. Hanson Co., 262 Ill. App. 160; Jefferson Trust & Savings Bank v. Heller & Son, Inc., 305 Ill. App. 644. In the latter case which is cited by defendant, the court said, ‘1 There is no precise time when as a matter of law a demand note should be deemed to be dishonored. Under the evidence found in this record, we are unable to say that the jury wére not warranted in finding that a reasonable time had elapsed at the time appellant became the owner of the original note and therefore not a holder in due course.”

In re Estate of Philpott, 169 Iowa 555, 151 N. W. 825, it was held that whether a demand note had been negotiated an unreasonable time after issue so that the holder was not one in due course, is a question for the jury. To the same effect is the holding of the Supreme Court of Connecticut in Tomlinson Carriage Co. v. Kinsella, 31 Conn. 268. The general proposition of whether or not plaintiff was a holder in due course was a question for the consideration of the jury. Renfrow v. Kramer, 341 Ill. 398,173 N. E. 390; Foncannon v. Lewis, 327 Ill. 455.

Correlated to the proposition, as to whether or not plaintiff took the note without notice of the agreement between Campanella and Grohe, is the question of a partnership existing between plaintiff and Grohe, for a principal is chargeable with and is bound by the knowledge of, or notice to, his agent received while the agent is acting within the scope of his authority and which is in reference to a matter over which his authority extended. United States Cold Storage Co. v. Central Mfg. Dist. Bank, 343 Ill. 503; Mullanphy Sav. Bank v. Schott, 135 Ill. 655; Stimpson Computing Scale Co. v. Ehmsen, 246 Ill. App. 271. A partnership may be established, if there be no written agreement, by the conduct and declaration of the parties. The State Nat. Bank of Springfield v. Butler, 149 Ill. 575. However, whether a partnership has been established by an oral agreement or by conduct of the parties is a question of fact. Fitch v. King, 279 Ill. 62; Field v. Crawford, 146 Ill. 136. In the instant case these questions were properly submitted to the jury, there being no error assigned as to instructions, and under all the facts and circumstances as shown by this record, we do not feel that the finding should be disturbed. The court did not err in refusing to direct a verdict for defendant.

We find no reversible error in the admission or rejection of testimony, as complained of by defendant. The trial court might well have sustained the objection to some of the testimony of plaintiff, as to conversation between him and Malan of the City National Bank, and as to information imparted to Malan by the banker at the Steeleville Bank, as hearsay, but we do not regard the admission of this testimony as sufficiently prejudicial to justify a reversal of this cause upon that ground alone. In our opinion while this record is not entirely free from errors, there was no reversible error committed by the trial court in the admission or rejection of evidence.

The jury saw and heard the witnesses, were in a position to observe their demeanor and conduct while upon the witness stand, and to judge of their credibility. The controverted questions in this case were questions of fact for the determination of the jury. By their verdict the jury determined those issues in favor of the plaintiff and we are not inclined to hold that their finding was contrary to the manifest weight of the evidence. Where a fair question of fact is raised by the proof, an Appellate Court will not set aside the jury’s finding as being against the manifest weight of the evidence. Summers v. Hendricks, 300 Ill. App. 498; Jones v. Esenberg, 299 Ill. App. 551; Gregory v. Merriam, 294 Ill. App. 483.

Finding no reversible error the judgment of the trial court "will be affirmed.

Affirmed.


author: Mr. Justice Dady

text:
    F. W. Reynolds et al., Appellees, v. Elmer H. Wangelin et al., Defendants, Illinois State Trust Company, Appellant.

      Heard in this court at the October term, 1941.
    Opinion filed March 2, 1942.
    Rehearing denied April 11, 1942.
    Pope & Driemeyer, of East St. Louis, for appellant.
    T. A. O’Cohnor and Thos. L. Fekete, Jr., both of East St. Louis, for appellees.
   Mr. Justice Dady

delivered the opinion of the court.

This is an appeal from a decree of foreclosure entered by the circuit court of St. Clair county, which in addition to ordering a sale of the mortgaged real estate found the defendant Illinois State Trust Company, hereinafter referred to as the 1 ‘ Trust Company,” guilty of fraud and as a consequence thereof liable to certain noteholders for the amount of any deficiency which might be found to be due to such note-holders after a sale of the mortgaged property and an application of the proceeds thereof upon the decree indebtedness. At the time the appeal was taken the decree of foreclosure had not been executed and there had been no sale of the mortgaged real estate.

The Trust Company is the only party appealing from the decree and it does not question any provision of the decree relating to the simple foreclosure. All of the assignments of error are directed to that portion of the decree which imposes a liability upon the Trust Company to pay the amount of any deficiency that may be found to be due after a sale.

Although the point has not been raised by any of the parties, it appears that the appeal taken by the defendant in this case is premature. It was determined in the case of Eggleston v. Morrison, 185 Ill. 577, that a conditional deficiency decree entered in a foreclosure suit in advance of sale is not a final decree. The basis for this ruling is found at page 579 of the opinion where the court makes these observations which we consider equally pertinent to the case before us: “While the statute authorizes the decree to be entered conditionally at the time of decreeing the foreclosure, its only effect is that of a finding* that the complainant is entitled to a personal decree for any balance that may be due after the application of the proceeds of the sale. An appeal will not lie from a finding or conclusion, either of law or fact, not accompanied by any final judgment or decree, and there can be no personal decree until there is a judicial determination of the amount due. That amount can only be ascertained after the sale, and such a decree as this is not final in that respect. (Cotes v. Bennett, 183 Ill. 82.) This decree lacks all the forms of a personal decree for the payment of money, and no action could be brought upon it. Whether anything, ór how much, will ever be due from the defendants is unknown. It has never been judicially determined that there is, or will be, any balance of money due over and above the proceeds of the sale. Unless a decree should be rendered against the defendants in the future, they will be entirely unaffected by the interlocutory finding* or conclusion of the court that they will be liable for a deficiency in case it shall exist.” The rule laid down in the Eggleston case has been approved and followed in Thomson v. Black, 208 Ill. 229; Lewis v. Matteson, 257 Ill. App. 1; Eglin v. Glats, 287 Ill. App. 44; Patek v. Baim, 299 Ill. App. 405; State Bank of St. Charles v. Burr, 375 Ill. 379. In State Bank of St. Charles v. Burr, the court points out that no final deficiency decree is entered until the court has determined the amount of the deficiency and has entered judgment thereon and that act cannot take place until after the foreclosure sale. (See also Bride v. Stormer, 368 Ill. 524.)

In Hartman v. Pistorius, 248 Ill. 568, the court assumed jurisdiction to pass upon the propriety of a decree finding a deficiency in advance of sale, but in doing so recognized the general rule as laid down in the Eggleston case, and explained its action on the ground that the decree before it involved something more than the mere right to a deficiency. The reasons given by the court for assuming jurisdiction in that case are not at all clearly developed and the case of Attebery v. Blair, 244 Ill. 363, which is cited in the Hartman case as authority for the proposition that it was improper for the court to order execution to issue on confirmation of the master’s report for any deficiency that might exist, does not decide that point. We do not feel that this single case furnishes sufficient precedent to make the case before us an exception to the general rule as laid down in the Eggleston case and the line of decisions following that case.

Under the provisions of section 77 (1) of the Civil Practice Act (Ill. Rev. Stat. 1941, ch. 110, par. 201 [Jones Ill. Stats. Ann. 104.077]) our jurisdiction is limited to a review of final judaments, orders, and decrees. (Daab v. Ritter, 294 Ill. App. 203; Prange v. City of Marion, 297 Ill. App. 353.) This provision of the Civil Practice Act is substantially the same as section 91 of the Practice Act of 1907 and under section 91 it was repeatedly held that appeals could be taken only from final judgments or orders. (Heilbrunn v. Ellsworth, 184 Ill. App. 223; Lavin v. Wells Bros. Co., 195 Ill. App. 108; People ex rel. Pantier v. Pantier, 221 Ill. App. 574; Meyers v. Ackerlund, 224 Ill. App. 417; Kircher v. Hamill, 239 Ill. App. 496.) It is equally established that whenever an appeal is taken from other than a final judgment or decree, except where specifically authorized by statute, we have no alternative except to dismiss it. (Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill. 200; Eglin v. Glatz, supra; Daab v. Ritter, supra; Prange v. City of Marion, supra.) In Eglin v. Glatz, supra, the sole question raised by the appeal was whether certain parties were personally liable for any deficiency that might arise because the premises might sell for less than the amount found due to complainant. In dismissing the appeal, the court there said at page 48 of its opinion: “The conditional decree establishing the right of complainant to a personal money decree against appellants, not being a final decree, we are without authority to review the same. The action of the court can be reviewed only after final decree.” In the absence of a final appealable order, the parties cannot confer jurisdiction on us by consent (Daab v. Ritter, supra) and it is our duty to dismiss a premature appeal on our own motion even where the question of jurisdiction is not raised by any of the parties. (Chicago Portrait Co. v. Chicago Crayon Co., supra; Prange v. City of Marion, supra.)

We would prefer to entertain the present appeal on its merits but in view of the foregoing authorities we are powerless to assume a jurisdiction which we do not possess. The appeal will, therefore, be dismissed.

Appeal dismissed.


author: Mr. Justice Matchett

text:
    William H. Tegtmeyer et al., Appellees, v. Daisy C. Tegtmeyer, Appellant.
    Gen. No. 41,733.

      Heard in the first division of this court for the first district at the June term, 1941.
    Opinion filed March 23, 1942.
    Rehearing denied April 7, 1942.
    Charles S. Harvey, of Chicago, for appellant.
    John Harrington and Lord, Bissell & Kadyk, all of Chicago, for appellees; L. Duncan Lloyd, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

This case in various phases has been before this court and the Supreme Court several times. Tegtmeyer v. Tegtmeyer, 259 Ill. App. 661; 348 Ill. 434; 292 Ill. App. 434 ; 306 Ill. App. 169.

The Supreme Court, when the case was before it, stated the facts, which need not be repeated, and held Mrs. Tegtmeyer should account for a trust fund of $5,000 created by the written agreement of her husband Edward with other heirs of his parents, Henry and Louise Tegtmeyer, who died at Burlington, Iowa (Louise on March 19, 1907, and Henry on October 12, 1912). The written agreement was entered into October 20,1913. The occasion for making it was that Frank Tegtmeyer (son of Henry and Louise) who had been accustomed to disappear from home, had not appeared to claim his share of the estate of his father. The agreement provided that $5,000 should be deposited in a reliable bank by Edward, who was administrator of Henry’s estate, for a period of ten years, and if Frank did not appear by that time it should be distributed equally among the heirs of Henry and Louise. Mrs. Tegtmeyer signed the agreement (it is expressly stated) as a guarantor. Edward did not keep the money in a reliable bank. On the contrary he used it with $13,000 more, belonging to himself and wife, in purchasing August 21, 1913, vacant real estate in Chicago known as 5463-69 Everett avenue. Title was taken in the names of himself and Mrs. Tegtmeyer as joint tenants. Edward died intestate November 1, 1924. Mrs. Tegtmeyer became the sole owner of the premises. She was asked to account, refused, and this suit was begun by other parties to the agreement March 11, 1925.

March 18, 1925, Mrs. Tegtmeyer contracted to sell the real estate. She applied to the Chicago Title & Trust Company for a guaranty policy. The Trust Company required a deposit of $10,000 to indemnify it against the suit. She deposited the $10,000 and completed the sale on April 20, 1925, delivering the deed to the purchaser and receiving proceeds to the amount of $46,240.01.

For this amount the decree- of March 18, 1930 (affirmed by this court in 259 Ill. App. 661, by the Supreme Court, 348 Ill. 434) directs Mrs. Tegtmeyer to account.

This appeal is from the final decree on the accounting entered on the report of a master March 13, 1941. The decree finds there is due from Mrs. Tegtmeyer to plaintiffs $24,654.26, and directs payment and distribution to them according to their respective interests.

Mrs. Tegtmeyer contends the decree should be reversed with directions to dismiss the suit for alleged laches of plaintiffs in failing to present the report of the master at an earlier date. The delay was unusual. The cause was referred March 18, 1930. The master reported December 20,1933. Mrs. Tegtmeyer filed objections June 9, 1934. The report was filed in the circuit court on the same day. The decree as stated was entered March 13, 1941. For much of the delay Mrs. Tegtmeyer must herself be held responsible. Every appeal in this long litigation has been taken by her. She refused to testify when directed to do so (292 Ill. App. 434); she refused to comply with orders of the court, and when committed sought release hut not in the way indicated by this court (306 Ill. App. 169). She is in no position to urge the defense of laches. In 292 Ill. App. 436, we said of this litigation: “. . . Neither party has rested on its oars but the battle has been continuous throughout the years.”

Mrs. Tegtmeyer says the decree should be reversed because just credits were not allowed to her. The decree of March 18, 1930, directed she file her account within 30 days. She filed it and afterwards a corrected account on September 6, 1932. This account showed the purchase of the vacant land for $18,000 and the payment of taxes and special assessments to the proper officials by Edward and Daisy Tegtmeyer during the time they held title. She also claimed interest from the respective dates of payment. The report and the decree say Mrs. Tegtmeyer acted wrongfully and was not, therefore, entitled to these credits. This rather than lack of proof seems to have been the reason for disallowance. The statement of account is in the record. There is no specific objection to it on this ground. Mrs. Tegtmeyer’s first exception was to the failure of the master to allow these items. Two days after the decree was entered she filed a petition to set it aside. In support she filed her verified petition setting up in detail these payments. Mrs. Tegtmeyer obtained a guaranty policy from the Chicago Title and Trust Company. She would have to clean up such items as taxes and special assessments to get it. Judges are not supposed to he ignorant of what everybody else knows. It is suggested Mrs. Tegtmeyer was a trustee de son tort and should not he allowed these items claimed for that reason. Mrs. Tegtmeyer did not stand in that position up to the time the sale of the land was made. At the inception of the trust Mrs. Tegtmeyer had no interest in the trust fund nor any duty to perform with reference to it. The trust agreement provides her signature is attached in order to guarantee performance of the trust. Her initial obligation was therefore purely contractual and contingent. The purchase of the vacant land was made by Edward. The agreement provided the money should be deposited in a reliable bank. Plaintiffs would have been entitled to disavow the investment and recover the principal amount due to them with interest. They elected to regard the vacant land as trust property and to accept their share of the proceeds derived from the purchase in lieu of interest. In an accounting on that basis we hold Mrs. Tegtmeyer is entitled to these credits.

The whole amount paid for taxes and special assessments (as indicated by Mrs. Tegtmeyer’s account) with interest thereon, from the dates of payment, at 5 per cent per annum, amounts to the sum of $10,536.20. The trust fund was owned by the parties ^sths by Mrs. Tegtmeyer and %sths by the plaintiffs. Plaintiffs’ share of the whole amount thus paid is, therefore, $2,341.38. This sum should have been deducted from the whole amount for which judgment was rendered against Mrs. Tegtmeyer. The whole amount she should have been decreed to pay is $22,312.92, and the amounts found due from her to the respective parties should be reduced proportionately on that basis. The whole amount due to Minnie Tegtmeyer as administratrix of the estate of William Tegtmeyer, deceased, should be reduced from $5,181.01 to $4,595.67. The amount found due to Louis J. Boock and Philip F. Abboud, executors of the estate of Anna L. Boock, deceased, should be reduced from $5,181.01 to $4,595.67. The amount due to William White should be reduced from $1,727 to $1,531.89. The amount due to Wesley White should be reduced' from $1,151.33 to $1,021.26. The amount found due to George White should be reduced from $1,151.33 to $1,021.26. The amount found due to Robert White should be reduced from $1,151.33 to $1,021.26. The amount found due to Louise A. Taubert (sometimes called Lillian Tegtmeyer Wilson) should be reduced from $2,590.50 to $2,297.83. The amount found due to Albert Nave Wilson (sometimes called Albert Nave) should be reduced from $2,590.50 to $2,297.83.

The net proceeds from the sale of the land were $46,240.01. Of this amount Mrs. Tegtmeyer deposited with the Chicago Title and Trust Company $10,000. For this and the proceeds of it the court later appointed a receiver, and it is in the custody of the court. If this $10,000 were applied on the amount due to plaintiffs at the time the proceeds of the sale of the real estate were received and credit given Mrs. Tegtmeyer for the payment of taxes and special assessments with interest thereon, it would be probably true (as she contends) that the rest of the proceeds would have belonged to her to do with it as she might please. This apparently is her theory. It cannot be accepted for the reason that neither at that time nor since has Mrs. Tegtmeyer made any accounting. She has never throughout this extended litigation offered to pay the whole or any part of the money she owes these plaintiffs. She cannot refuse to account and then claim the same benefits she would have had if she had accounted when she should have done so. This attitude of Mrs. Tegtmeyer has brought her into conflict with the law and the orders of the courts. For her misfortunes she has only herself to blame. Her wrongdoing began April 20, 1925, when she failed on demand to pay plaintiffs what was due to them.

The decree continues in force the ne exeat writ which was issued in 1933 pending the suit. The power of a court in this State to issue such a writ is regulated by statute (Smith-Hurd’s Ann. Stats., ch. 97, § 1, p. 822). Section 11 of the' Act (p. 827) provides the court at any time may determine whether the writ should be quashed or set aside. The manifest purpose of such a writ (as its name indicates) is to prevent a defendant from going beyond the jurisdiction of the court and to compel an answer. It is not intended to be used as a substitute for punishment or as a means of life imprisonment. Mrs. Tegtmeyer has remained in the jurisdiction until the entry of the final decree. She answered the petition for the writ and denied the material averments of the petition. We hold she is entitled to be discharged from detention under that writ on her motion, as it has served its purpose. The commitment for contempt for refusal to answer proper questions is another matter and controlled by different principles so long as the case is pending.

In another respect (inadvertently, we cannot doubt) the decree errs. It directs that “until this decree and any decree that may be subsequently entered herein . . . shall have been fully satisfied,’’ she shall stand committed. This manifestly violates article 2, section 12 of the State Constitution.

The decree entered on the accounting will be modified by reducing the whole amount found due from Mrs. Tegtmeyer to be $22,312.92, .and the sums found due from her to the respective plaintiffs will be proportionately reduced as above set forth. So modified, that part of the decree will be affirmed. Those parts of the decree which direct the continuance in force of the writ of ne exeat and that Mrs. Tegtmeyer stand committed until this decree, or any decree that may be subsequently entered, shall have been fully satisfied, will be reversed.

Modified in part and affirmed and in part reversed.

McSurely, P. J., and O’Connor, J., concur.


text:
    In re Ernest T. Wolf and Chicago and Northwestern Railway Company, Appellees, v. Village of Mt. Prospect and William Mulso, Defendants. Appeal of William Mulso, Appellant.
    Gen. No. 41,831.
    Heard in the first division of this court for the first district at the October term, 1941.
    Opinion filed March 23, 1942.
    Rehearing denied April 6, 1942.
    Henry O. Nickel, of Chicago, for appellant.

      Stewart Reed Brown, of Chicago, for certain appellee.
    Nelson J. Wilcox, of Chicago, for certain other appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

In a suit for mandamus on trial by the court there was an order the writ issue directing Mulso, superintendent of building and construction of the Village of Mount Prospect, to issue a certificate of occupancy and license to plaintiff Wolf to conduct a coal yard in conformity with his applications of October 24, 1938, and April 11, 1940. The applications were for a license to conduct the business and erect buildings deemed necessary and appropriate. Both applications were denied by the commissioner. The pleadings consist of the petition of plaintiff, the answer of defendant and reply of plaintiff. Evidence also was taken.

Attached to the petition was a plat showing the location in the village of the coal business which has been conducted there by plaintiff for a number of years and the proposed new location on which it is intended to conduct it. This new location is on the right of way of the plaintiff Northwestern Railway Company, which is about 100 feet wide at the place in question. The particular piece of ground is irregular in shape and has a width of about 50 feet and a length of about 250 feet. Plaintiff has a lease from the railway company dated December 27, 1939. The lease was obtained after his first and before his second application to the building commissioner. The lease authorizes the use of the land for a coal business and is approved by the Illinois Commerce Commission as provided by statute (Ill. Rev. Stat. 1939, ch. 114, § 174a [Jones Ill. Stats. Ann. 114.079]). The lease provides “that the lessee will . . . comply with all laws, ordinances and regulations respecting its business and its use and occupation of said premises.” It may be terminated on 30 days’ notice. Plaintiff’s application to the Illinois Commerce Commission for approval of the lease stated the property was not needed for railway purposes. A portion of the leased land has been hitherto used for dwellings for employees working on this section of the railway. There are no other buildings on it except a small tool house.

The Village of Mount Prospect passed a zoning ordinance December 4, 1923. It divides all the real estate in the village into industrial, business or residential districts. This particular tract is zoned as residence property. The village has a board of appeals as provided by sections 73-4 and 5 of the Zoning Act (Ill. Rev. Stat. 1941, p. 477 [Jones Ill. Stats. Ann. 21.2125 and 21.2126]). Plaintiffs did not appeal to this board from the orders denying his applications. Their petition alleges that there was no such board but the evidence shows there was.

The contention of plaintiffs seems to be that the general control of public utilities which has been vested by statute in the Illinois Commerce Commission by the Public Utilities Act has taken from towns and villages the power conferred by the zoning statute to enact ordinances zoning property within the village and defining its particular use. Plaintiffs cite Village of Atwood v. Cincinnati, I. & W. R. Co., 316 Ill. 425; Northern Trust Co. v. Chicago Rys. Co., 318 Ill. 402, and Tjardes v. New York, C. & St. L. R. Co., 357 Ill. 162, at 165 and 166. We have examined the cases and hold the contention cannot be sustained. In the Atwood case the village by ordinance undertook to compel the railroad company to provide a flagman at a certain crossing. It was held the Public Utilities statute had vested the exclusive power in that regard in the commerce commission, and it had acted. In the Northern Trust Co. case the question was whether an ordinance of the city requiring street cars to be equipped with headlights was valid, and it was held the authority of the commission was superior in that respect. In the Tjardes case the question was whether the commerce commission had exclusive jurisdiction to determine the charge which might be made for the use of a switch track by a shipper who owned an elevator on the property of the railway. The answer was in the affirmative. There is no conflict of jurisdiction here between the commerce commission and the zoning board of the Village of Mount Prospect. The application for approval of the lease expressly stated the land was not needed for railway purposes and the lease provided that the lessee should obey all ordinances, etc.

Plaintiffs cite Taylor v. Village of Glencoe, 372 Ill. 507. The suit there was for an injunction to restrain the Village of Glencoe from enforcing its zoning ordinance as applied to a particular piece of property of which the plaintiffs were owners. The Supreme Court held that the classification established by the zoning ordinance as applied to plaintiffs’ property was arbitrary and unreasonable and failed to bear any relation to the public health, safety, morals and welfare. The Supreme Court directed an injunction to issue. That is not the procedure adopted by the plaintiffs here.

There is some difficulty in understanding the theory on which plaintiffs here bring their suit. Their petition alleges that the ordinance is unconstitutional and invalid but they ask a mandamus to compel its enforcement and say that plaintiff is entitled to a permit under it. The petition proceeds upon the theory that petitioner is excused from taking an appeal from the decision of the commissioner to the board of appeals because the petition says the village had not created any such board to which an appeal might be taken. The evidence shows this is not true and plaintiffs offered no proof to the contrary. The petition alleges the action of the commissioner was arbitrary and unreasonable and does not promote the general welfare, safety, health, comfort or morals. Evidence was- produced on this issue by the respective parties.

At the time of the first application plaintiff did not have any lease from the railway company. He secured the lease before the second application was made. Plaintiff said he proposed to store coal on the leased property; that the quantities would be received in carload lots, around 700 or 800 tons at a time; that the coal would be Pocahontas Mine Run, Pocahontas Nut and Pocahontas Pea — no hard coal; that the coal would be stacked in 8 or 10 piles. There are no other coal yards on the railroad right of w'ay within the limits of Mount Prospect. This yard would be located east of the depot. The closest residence would be over 100 feet. The property fronts on the Northwest Highway.

The evidence shows that the Village of Mount Prospect has within the past few years expended money to beautify and clean up this railroad right of way and to that end leased some of the property around the railroad station. The village has paid for planting shrubbery. In the opinion of persons interested in the welfare of the village the location of this coal yard at this place would tend very much to lower the value of other properties in the village for residential purposes.

The writ of mandamus is not to issue in a doubtful case. The right to it must be clear and substantially free from doubt. This court has held the remedy in a case of this kind is by certiorari to review the decision of the board of appeals. Cann v. City of Chicago, 241 Ill. App. 21. This is an attempt to coerce the commissioner by mandamus. Plaintiffs’ right to do so is more than doubtful. The judgment will be reversed.

Reversed.

McStjrely, P. J., and O’Connor, J., concur.


author: Mr. Justice O’Connor

text:
    State Bank of Blue Island, Appellee, v. Joseph Benzing et al., Appellants.
    Gen. No. 41,825.
    Heard in the first division of this court for the first district at the October term, 1941.
    Opinion filed March 23, 1942.
    Rehearing denied April 6, 1942.
    Klenk & Klein, of Chicago, for certain appellants; Franklin W. Klein, of Chicago, of counsel.
    Ward H. Harris, of Chicago, for certain other appellants ; Ward H. Harris, of Chicago, of counsel.
    Hummer, Van Ness & Yowell, of Chicago, W. Otto Wielgorecki, of Blue Island, and Scott, MacLeish & Falk, of Chicago, for appellee; John J. Yowell, of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

November 8, 1937, the State Bank of Blue Island brought an action against defendants to enforce a written contract of guaranty executed by defendants whereby they guaranteed the performance by the Blue Island Trust & Savings Bank of a contract entered into between that bank and plaintiff. The case was tried before the court without a jury, there was a finding and judgment in plaintiff’s favor for $93,973.87, and defendants appeal.

The case was before us on a former appeal from a judgment holding that plaintiff had failed to state a cause of action in its amended complaint, in that the contract entered into by the two banks was ultra vires and void. We reversed the judgment (301 Ill. App. 352) and the case was then heard on its merits. Many of the facts are stated in our former opinion and will not be repeated here.

The Blue Island Trust & Savings Bank was conducting its bank in Blue Island. It was in failing circumstances, complaint having been made by the Auditor of Public Accounts as to some of its business transactions and it was decided to organize a new bank. This was done and plaintiff, the State Bank of Blue Island, assumed the deposit liabilities of the old bank, took over its bankable assets and new money was put into the new bank. The contract entered into between the two banks provided that the new bank might at any time require the old bank to repurchase some of the assets, and defendants entered into a written guarantee that the contract would be carried out. Afterward the old bank was wound up by the Auditor of Public Accounts, who appointed a receiver, and the new bank filed its claim with the receiver. The receiver there contended the claim should not be allowed for the reason that the contract entered into between the two banks was ultra vires and void. The matter was referred to a master in chancery who found the contract valid, recommended the allowance of the claim for $145,310.87 and this was approved by the chancellor December 21, 1936, when a decree was entered.

July 3, 1937, the old bank filed its petition in the liquidation proceeding and sought to have the allowance of the claim vacated. Its petition was dismissed and on appeal to this court the order dismissing the petition was affirmed. We there held the receiver was the only one authorized to represent the old bank (301 Ill. App. 398). Before the receiver was appointed assets were sold to the new bank, of the face value of $1,231,366.32, which as well as those not sold, were being liquidated over a period of years until the face value of the assets held by the new bank had been reduced to $84,811.35. June 22, 1936 the new bank tendered these assets to the receiver of the old bank and requested they be repurchased in accordance with the contract entered into between the two banks. The request was refused and there seems to be no dispute that the receiver did not have the money with which to repurchase such assets. The amount of these assets was included in the claim of $145,310.87 allowed the new bank against the receiver. Afterward the receiver filed his petition in the liquidation suit for leave to sell the $84,811.35 of assets as well as the remaining assets of the old bank and April 7, 1937, an order was entered authorizing and directing the receiver to sell all the assets except cash and money due from banks. Offers were to be filed with the clerk of the circuit court of Cook county where the liquidation suit was pending. The order directed the receiver to publish notice of the time and place of the sale once a week for four successive weeks in two secular newspapers of general circulation published in the City of Blue Island, and once every other week day in the Chicago Daily Tribune “so that any person having any interest in this Receivership Estate may have notice.” The provisions of the order were carried out by the receiver who conducted the sale May 10, 1937, and plaintiff, the new bank, bid $63,500 for the assets offered. The bid was on condition that the amount of the bid be applied so as to reduce plaintiff’s claim against the receiver. The court ordered the receiver to accept the bid and to carry out the sale which was accordingly done, and November 6, 1939, a bill of sale was given by the receiver to the new bank transferring such assets of the old bank for the amount of the bid. Other payments were made by the receiver from funds he had collected in administering the winding up of the old bank, credit was given and the claim reduced accordingly.

The record discloses that a written agreement was entered into between the two banks February 27, 1930, whereby the new bank was to assume the deposit liabilities of the old bank, take over certain of its bankable assets above mentioned, etc. It contained a provision that at any time within 6 months from the date of the contract the old bank would £ 1 repurchase for cash or liquid securities any part of the assets which the new bank” may find are not properly bankable securities. And it was expressly understood that the new bank might from time to time renew or extend the liability of any debtor who was obligated on any of the assets turned over to the new bank and such act would in no wise release or affect the liability of the old bank to repurchase.

By the 5th paragraph of the contract it was agreed that the old bank would, on or before one year, repurchase $29,000 of first mortgage bonds issued by the Hazelwood Cemetery Association for the price of $29,000 and accrued interest, and it was further provided that either party might within the year sell or dispose of the bonds, the amount received to be paid to the new bank. At the same time and as a part of the same contract, defendants, except Joseph Jezisik, since deceased, who were directors of the old bank, and other directors of the old hank, severally executed a guaranty for the full performance of the contract entered into between the two banks.

October 10, 1930, the two banks executed another agreement by which the time within which the securities might be repurchased by the old bank was extended for a period of 6 months that is until February 27th, 1931. That agreement recited the execution of the first agreement of February 27, 1930, together with the guaranty agreement, above mentioned, and then recited that the new bank, in accordance with the terms of the first agreement, at that time demanded that the old bank repurchase the then remaining assets which had been turned over to the new bank totalling $532,880.33, and that since the old bank “and the above mentioned guarantors are unable to meet in full the demand” of the new bank “they request an extension of time for the completion of said agreement for a period of six (6) months, that is to say, until the 27th day of February, A. D. 1931” and it was therefore agreed that the old bank would repurchase for cash or other liquid securities any or all of such assets during such period. It was further provided that the new bank ‘ ‘ agrees to take a promissory note” of the old bank “secured by $29,000 first mortgage bonds of the Hazelwood Cemetery Company, which bonds are part of the assets to be repurchased as shown on page 7 of this extension” the note to be dated August 27, 1930, due on demand and to mature on the date of the expiration of the extension agreement, and it was further agreed that the acceptance of the note should in no way affect or nullify the provisions of the original agreement “and does not release” the old bank “or its guarantors from the fifth provision of the original agreement dated February 27, 1930” whereby the old bank agreed to purchase “these bonds within one year from that date.” And “It is hereby specifically agreed and understood that any stipulations or provision in this Extension Agreement shall in no way affect or nullify any provisions or covenants as set forth in the original agreement dated the 27th day of February, A. D. 1930.”

This contract was signed by the two banks and immediately following, as a part of the same document, was a contract of guaranty signed by all defendants, including defendant Jezisik, and others except defendant Joseph Benzing. It is stated in the guaranty that “In consideration of the making of the foregoing extension by the State Bank of Blue Island, we, the undersigned, being directors of the Blue Island Trust & Savings Bank, do hereby jointly and severally guarantee the full performance of all the terms and conditions contained on the part of said Blue Island Trust & Savings Bank to be performed, and do further agree that in the liquidation of the assets of said Blue Island Trust & Savings Bank, the funds so received shall be distributed in the following order”: Then follow some specifications, and the guaranty continues: “It being expressly agreed and understood that the extension shall in no way affect or nullify any provisions in the original contract or our original guaranty.”

Plaintiff’s claim of $145,310.87 allowed against the receiver in the liquidation proceeding is made up of two items with interest on each as follows: (1) $84,811.35, being apparently the face value of the securities tendered by plaintiff, the new bank, to the receiver to be repurchased; interest was computed on this amount at 6 per cent from February 27, 1931, to June 22, 1936, making $27,069.62; the second item, $24,792.14, being the balance due on the promissory note of $29,000, above mentioned, on which there was allowed interest at 6 per cent per annum from August 27, 1930, to June 22, 1936, making $8,637.76, so that the two items of interest amount to $35,707.38.

After the allowance of the claim there was a further liquidation of the remaining assets until the principal amount due was reduced to $34,603.98, and the judgment in the instant case was made up of that item and $59,369.89 interest, or a total of $93,973.87.

Defendants contend the judgment is wrong and should be reversed because plaintiff did not make a demand on the old bank to repurchase the assets prior to the expiration of the first six months, as required by the contract, nor prior to the expiration of the extension agreement. In reply to this contention counsel for plaintiff say (1) that the liability of the old bank “whose performance of its agreement of February 27, 1930 was absolutely and unconditionally guaranteed by the defendants, has been twice adjudicated by this Court,” citing State Bank of Blue Island v. Benzing, 301 Ill. App. 352 and Albers v. Blue Island Trust S Savings Bank, 301 Ill. App. 398. (2) that the contract entered into between the two banks “provided for no demand by plaintiff as a condition precedent to the liability of the Blue Island Trust and Savings Bank.” (3) that even if there was such a requirement the evidence shows a demand was made and (4) “The evidence shows that the demand on Blue Island Trust and Savings Bank to repurchase securities for $532,880.33 was in any event useless and in vain.”

(1) The liability of defendant guarantors was not adjudicated by us in the two cases cited. In the first case we decided that the contract entered into between the two banks was not ultra vires and void and that the allowance of the claim filed with the receiver in the liquidation proceeding where the validity of the contract was squarely raised, was an adjudication of the validity of the contract as between the two banks. In the second case we held that the petition of the old bank filed in the liquidation proceeding, by which it sought to vacate the allowance of the claim, was properly dismissed for the reason that under the statute the receiver was the proper party and not the old bank.

(2) Did the original contract and the extension agreement entered into between the two banks require plaintiff, the new bank, to demand the old bank to repurchase the securities which the new bank thought were not bankable assets 1 We think they did. The original contract was entered into February 27,1930, whereby the old bank sold certain of its- bankable assets to the new bank which assumed the deposit liabilities of the old bank. That agreement provided: “The party of the first part [old bank] hereby agrees that at any time within six months from the date hereof it will repurchase for cash or liquid securities any part of the assets shown upon Exhibit A hereto attached which the party of the second part [new bank] may find are not properly bankable securities.” And the extension agreement, which the evidence shows was executed October 10, 1930, recites some of the provisions of original agreement, one of which is: 11 and, whereas, the party of the second part [new bank] now demands, in accordance with the terms of the above mentioned agreement, that certain assets and securities, totalling $532,880.33 as detailed on pages 4 to 13, inclusive, attached hereto and made a part hereof, be re-purchased by the party of the first part, [old bank] and since the party of the first part [old bank] and the above mentioned guarantors are unable to meet in full the demand of the party of the second part, they request an extension of time for the completion of said agreement for a period of six (6) months, that is to say, until the 27th day of February, A. D. 1931.” Under the provisions just quoted from the two contracts we are of opinion that the guarantors would not be liable unless a demand to repurchase certain of the assets was made by the new bank within the six months’ period mentioned in the first contract or the extension period of six months, and that this was plaintiff’s construction of the two documents is further shown by plaintiff’s complaint in which it is alleged that, in accordance with the terms of the contract “plaintiff demanded that certain of said assets and securities be repurchased.” Substantially the same allegation is contained in the complaint in reference to the demand made under the extension agreement. Furthermore, this view is further sustained by plaintiff’s written demand made on the receiver June 22, 1936. In that demand it is stated “We hand you herewith and hereby make physical tender of the securities described in the Schedule hereto attached and made a part hereof and demand is hereby made upon you to repurchase from the State Bank of Blue Island each of said securities in accordance with the agreements entered into between the State Bank of Blue Island and the Blue Island Trust and Savings Bank dated February 27, 1930 and in October, 1930, respectively.”

(3) Does the evidence show a demand to repurchase the securities 1 Counsel for plaintiff contend the evidence does show such demand and in support of this say the evidence shows that the list of securities, which plaintiff held were not bankable assets, was made up and a demand made both on the old bank through its officer, Fordtran, and upon the defendants and that this is shown by the testimony of the witness Mayne. They say he testified that prior to February, 1930, he was a bank examiner for the state auditor and examined the old bank and then details what was required to create a new bank, and that after the new bank was organized he became its cashier. On cross examination he testified “On the question whether as cashier of the State Bank of Blue Island I ever made a demand on the Blue Island Trust and Savings Bank to repurchase the assets referred to in the agreements, there was a demand served on the bank to the best of my recollection on both occasions at the expiration of the original contract and at the expiration of the extension”; that the demand was oral; that “I made a demand upon the individual guarantors in writing — in that letter of August 27th. I don’t remember at this time whether or not a similar written demand was ever made against the bank.” He further testified several of the directors of the old bank had called upon him relative to the expiration of the original agreement and discussed the possibility of an extension; that when he made the oral demand above referred to, “I don’t think I furnished them definitely with a list at that time, no. I would not say whether or not it was a formal demand, but we had discussed the matter.” There is in evidence a letter on which it appears that it was “Mailed 8-27-30.” It is not addressed to anyone but apparently was signed by the cashier, in which it is said: “In accordance with the terms of an Agreement entered into on the 27th day of February, 1930 between the Blue Island Trust and Savings Bank and the State Bank of Blue Island in regard to the repurchase of certain assets not formally accepted by the State Bank of Blue Island and on which agreement you are a guarantor, please accept this letter as formal notice that in order to conform with the terms of this agreement the State Bank of Blue Island hereby demands the fulfillment of this repurchase agreement. A list of such assets is on file with the cashier of the State Bank of Blue Island.

‘ ‘ Several of the directors of the Blue Island Trust and Savings Bank have requested a six months’ extension of this repurchase agreement, which the State Bank of Blue Island is willing to grant and it was for this purpose that a meeting was called on August 26, at 7:30 p.m.

“Due to the fact that there were only a small number present the meeting was adjourned.

“We will appreciate it if you will call the State Bank of Blue Island upon receipt of this letter.” This letter was mailed to defendants August 27, 1930, at 4:25 p.m.

We think the evidence was sufficient to show there was a demand to repurchase made before the expiration of the six months’ period mentioned in the original contract. The letter of August 27, 1930, shows such a demand was made and that all the guarantors were notified, the letter having been mailed to each of them. Moreover we are of opinion that when the second, or extension agreement was entered into October 10, 1930, the demand required to be made within the six months’ period was waived. In the extension agreement it was expressly provided that “any stipulations or provision in this Extension Agreement shall in no way affect or nullify any provisions or covenants as set forth in the original agreement dated the 27th day of February, A. D., 1930.”

But we are further of opinion the evidence fails to show a demand to repurchase was made prior to the 27th day of February, 1931, the date of the expiration of the agreement as extended by the second contract. The testimony of Mr. Mayne, on which plaintiff chiefly relies, we think is insufficient. He testified that to the best of his recollection an oral demand was made on the old bank “at the expiration of the original contract and at the expiration of the extension” that he made a demand on the guarantors as shown by the letter of August 27, 1930. It is contended this evidence together with the fact that the letter of February 24, 1931, was sent to the old bank and mailed to the guarantors including defendants, is sufficient. No demand to repurchase is made in the letter of February 24. It advises that the time within which certain assets were to be repurchased, as shown by the extension agreement, would expire February1 27, 1931, and the letter then continued, “In the event that you desire the agreement to be extended it will be fitting to advise the State Bank of Blue Island accordingly.” We think it clear this was not a demand to repurchase but only suggests that another extension agreement be entered into. We think this is borne out by the fact that afterward, June 22, 1936, when the State Bank made a demand upon the receiver of the old bank to repurchase the assets it presented the receiver with a written demand in which it was expressly stated, “We hand you herewith and hereby make physical tender of the securities described in the Schedule hereto attached . . . and demand is hereby made upon you to repurchase from the State Bank of Blue Island each of said securities in accordance with the agreements entered into between the State Bank of Blue Island and the Blue Island Trust and Savings Bank dated February 27, 1930 and in October, 1930, respectively.” No demand having been made to repurchase prior to February 27, 1931, the guarantors cannot be held liable.

(4) As to whether a demand to repurchase “securities for $532,880.33 was in any event useless and in vain” as counsel contend, we think under the evidence it cannot be said that a demand would have been unavailing as to these assets or at least as to part of them, because the evidence shows that $30,000 face value of the Liberty Theatre bonds were part of the assets tendered to the receiver for repurchase June 22, 1936, and in 1940 they were called for 102 plus accrued interest, and this sum was paid to plaintiff, the new bank.

We might say we have considered all of the other contentions made by defendants and think none of them can be sustained. Without going into detail we think there is no merit in defendants’ contention, that defendants were being sued on the balance due on the $29,000 note, above mentioned, for the reason that defendants did not sign the note but it was signed by the old hank, because plaintiff’s suit is not on the note but on the written guaranty.

As to the contention that defendant, Joseph Ben-zing, is not liable on the second guaranty because he did not sign it, we think it cannot be sustained because as one of the directors he authorized the execution of the extension agreement and guaranty.

For the failure to make demand to repurchase, as above stated, prior to February 27,1931, the judgment of the circuit court of Cook county is reversed.

Judgment reversed.

McSubely, P. J., and Hatchett, J., concur.


text:
    Joseph Plodzien, Minor, by Thomas Plodzien, His Father and Next Friend, Appellant, v. Leona M. Segool and Baird and Warner, Appellees.
    Gen. No. 41,834.

      Heard in the first division of this court for the first district at the October term, 1941.
    Opinion filed March 23, 1942.
    Thaddeus C. Toudor and Irving L. Lansing, both of Chicago, for appellant.
    George C. Bliss, of Chicago, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.

Joseph Plodzien, a minor by his next friend, brought an action against defendants to recover damages for personal injuries claimed to have been sustained by him through defendants’ negligence. At the close of plaintiff’s case there was a directed verdict for defendants and plaintiff appeals.

The record discloses that about 4 o’clock in the afternoon of July 31, 1936, plaintiff, a boy about 14 years of age, and three companions, left the rear of plaintiff’s home (where he lived with his parents, on Richmond street, a north and south street 4 or 5 doors north of Walton street, an east and west street) and walked south in the alley in the rear of his home on their way to a nearby park. Plaintiff was a few steps ahead of his companions and as he passed in the rear of a building located on the west side of the alley, a piano plate which was resting on rollers and leaning against the fence in the rear of that property, rolled or fell on his foot injuring him. The piano plate was four feet by six feet and weighed about 400 pounds. Plaintiff charged that defendant Leona M. Segool owned, and defendant, Baird & Warner, a corporation, managed the property at the rear of which the plate was leaning against the fence and that as a result of defendants’ negligence plaintiff was injured.

There was some evidence to sustain these contentions and further evidence that, a few days before the accident, John Bunyan, the janitor of the building in question, had been seen placing the piano plate in the rear of the premises where it was when it fell or rolled on plaintiff’s foot.

Counsel for defendants contends it was alleged in the complaint Leona M. Segool was the owner of the premises and defendant, Baird & Warner, a corporation, was engaged in the business of property management and was supervising and controlling the premises, acting as agent for Leona M. Segool. They say that “Nowhere in the record is there any evidence that proves or tends to prove the material allegations in the complaint above referred to, which allegations were denied by the defendants in their answer.” The contention is that in these circumstances the verdict in defendants’ favor was properly directed.

Where a motion is made at the close of plaintiff’s case to direct a verdict for defendants, if there is no evidence, or but a scintilla of evidence tending to prove the material allegations of the complaint, the motion should be allowed and a verdict directed but if there is any evidence viewed most strongly in plaintiff’s favor which tends to prove the material allegations of the complaint, the motion must be denied. Libby, McNeill & Libby v. Cook, 222 Ill. 206. It is also the law that where, in such a situation, uncertainty arises as to the inferences that may legitimately be drawn from the evidence so that fair-minded men may honestly draw different conclusions, the question is not one of law but one of fact to be settled by the jury. Denny v. Goldblatt, 298 Ill. App. 325; Chicago & N. W. Ry. Co. v. Hansen, 166 Ill. 623; Moore v. Rosenmond, 238 N. Y. 356; Kavale v. Morton Salt Co., 242 Ill. App. 205; Norris v. Illinois Cent. R. Co., 88 Ill. App. 614; Richmond & Danville R. Co. v. Powers, 149 U. S. 43; Gunning v. Cooley, 281 U. S. 90; Best v. District of Columbia, 291 U. S. 411. And as stated by the Supreme Court of the United States in Union Pac. R. Co. v. Huxoll, 245 U. S. 535, in a negligence case demonstration is not required.

In the instant case plaintiff alleged that defendant, Leona M. Segool, was the owner of the building which was being managed for her by defendant, Baird & Warner, a corporation, acting as her agent. Defendants June 6, 1938, filed their answer admitting these allegations. Afterward, October 25, 1939, defendants by leave of court, filed an amended answer in which they denied these allegations. On the trial plaintiff offered in evidence defendants’ original answer. We think this answer was properly admitted. Bennett v. Auditorium Bldg. Corp., 299 Ill. App. 139; People ex rel. Nelson v. Central Mfg. District Bank, 306 Ill. App. 15.

We think there is some evidence tending to support the material allegations of the complaint and the court erred in directing a verdict. Counsel for defendants further says that “The law is that a presumption can not be based upon a presumption.” Although stated in many cases this is not the law. There never was such orthodox rule. Vol. 1, Wigmore on Evidence 3d Ed. § 41; Burns v. Prudential Ins. Co. of America, 283 Ill. App. 442; Sturm v. Employers’ Liability Assur. Corp., 212 Ill. App. 354; Paoli v. Loyal Protection Ins. Co., 289 Ill. App. 87; Welsch v. Charles Frusch Light & Power Co., 197 Iowa 1012; Devine v. Delano, 272 Ill. 166; Denny v. Goldblatt Bros., Inc., 298 Ill. App. 325; Vol. 1, Jones on Evidence 2d Ed. § 364; Chesapeake & O. Ry. Co. v. Ware (Va.), 95 S. E. 183.

Professor Wigmore, for many years Dean of the Northwestern University School of Law, now Dean Emeritus of the same school, in his excellent work on evidence in § 41, of the 3d Ed. says: ‘ ‘ Sec. 41. Circumstantial Evidence may he proved hy the same Kind. It was once suggested that an ‘inference upon an inference’ will not he permitted, i. e. that a fact desired to be used circumstantially must itself be established by testimonial evidence; and this suggestion has been repeated by several Courts, and sometimes actually enforced.

“There is no such orthodox rule; nor can be. If there were, hardly a single trial could be adequately prosecuted. For example, on a charge of murder, the defendant’s gun is found discharged; from this we infer that he discharged it; and from this we infer that it was his bullet which struck and killed the deceased. Or, the defendant is shown to have been sharpening a knife; from this we argue that he had a design to use it upon the deceased; and from this we argue that the fatal stab was the result of this design. In these and innumerable daily instances we build up inference upon inference, and yet no Court (until in very modern times) ever thought of forbidding it. All departments of reasoning, all scientific work, every day’s life and every day’s trials, proceed upon such data. The judicial utterances that sanction the fallacious and impracticable limitation, originally put forward without authority, must be taken as valid only for the particular evidentiary facts therein ruled upon.

“The fallacy has been frequently repudiated in judicial opinionsand the author cites many authorities in support of what he says.

Mr. Justice Taylor, in delivering the opinion of the court in the Sturm case, [212 Ill. App. 354] said (p. 363): “If any one or more of those inferences is doubtful, the ultimate is doubtful. Of course, an inference from an inference, and then a third and fourth may, under certain circumstances, be admissible (Ohio Building Safety Vault Co. v. Industrial Board, 277 Ill. 96 [14 N. C. C. A. 224], but the more remote the inference the more enfeebled its probative force.”

In holding that an inference may be based upon an inference, the Supreme Court of Iowa in the Welsch case [197 Iowa 1012] said, (p. 1021): “Possibly, however, it is as pertinent here as anywhere to refer to appellees’ frequent appeal to the so-called rule which forbids ‘building inference upon inference.’ The phrase so quoted is one of the many sayings having a legitimate use in some phases of legal discussion, but not rising to the dignity of a universal rule of evidence, and often mistakenly applied or cited in support of an effort to exclude or neutralize competent circumstantial evidence. In proving or disproving any alleged fact by circumstantial evidence, inference is often legitimately drawn from facts established by other inferences. Indeed, if we exclude all inferences which depend in any degree upon other inferences from established or admitted fact, very little human testimony would ever reach the ear of court or jury. . . .

“Ordinarily, proof of a material fact is not accomplished by inference from any one isolated incident or circumstance, but by the combination or aggregation of many related circumstances, each lending more or less support to the other and to the conclusion sought to be established. If some of these contributing circumstances are themselves shown only as matters of inference from other circumstances, it may justify the triers of fact in considering it as diminishing the weight or value of the conclusion or final inference, if it may be so called, but does not render it inadmissible.”

If there is a retrial of the case we have pointed out how the facts can be ascertained before trial in Aarseth v. Stein, 278 Ill. App. 16.

The judgment of the Circuit court of Cook county is reversed and the cause remanded.

Reversed and remanded.

McSurely, P. J., and Hatchett, J., concur.