author: Mr. Justice O’Connor

text:
    People of the State of Illinois for use of Alan C. Hammond, Appellant, v. Charles E. Graydon and Standard Accident Insurance Company, Appellees.
    Gen. No. 40,986.

      Opinion filed June 24, 1940.
    Rehearing denied July 8, 1940.
    Henry C. Ferguson, of Chicago, for appellant.
    Barrett, Barrett, Costello & Barrett, of Chicago, for certain appellee.
    Dent, Weichelt & Hampton, of Chicago, for certain other appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

July 11, 1938, plaintiff brought an action against Charles E. Graydon, former sheriff of Cook county and the Standard Accident Insurance Company, a corporation, surety on the sheriff’s official bond, to recover damages claimed to have been sustained on account of the action of the sheriff in levying a writ of execution on Hammond’s property July 30, 1928. The sheriff answered denying liability and filed a counterclaim against the Hartford Accident & Indemnity Company, as surety, which had executed a bond in connection with the levy. Defendant, Standard Accident Insurance Company, filed a motion to dismiss the complaint, and the order was that the motion of the surety company and the sheriff be allowed; plaintiff refused to plead further, suit was dismissed at plaintiff’s costs and he appeals.

The complaint was in three counts, the first avers the execution and delivery of the bond for $100,000 by the sheriff and his surety December 27, 1926, conditioned that the sheriff would faithfully discharge the duties of his office; that July 30,1928, an execution of the circuit court of Cook county issued on a judgment rendered in that court in favor of John C. Bowers and against A. L. Hammond, alias Albert L. Hammond; that the sheriff, by his deputy, levied on goods and chattels belonging to the use plaintiff Alan C. Hammond; conducted a fraudulent sale of the property and fraudulently neglected to return the writ or to make a record of the goods or of the levy or sale; that afterward the ownership of the goods and chattels was litigated in a creditor’s bill filed September 5, 1928, by George Stevens; that John C. Bowers, who was the judgment creditor named in the execution, intervened April 6,1929; that September 20, 1934, the creditor’s bill, on motion of plaintiff and Bowers, was dismissed over the objection of defendants in that case; that by reason of the result of the creditor’s suit, the goods and chattels were wholly lost to the use plaintiff Alan C. Hammond; that the foregoing was a breach of the condition of the sheriff’s official bond and plaintiff suffered actual damages of $1,700, the value óf the property. This sum was claimed, plus 6 per cent interest from July 30, 1928; $700 attorney’s fees for “prosecuting case of trial of right of property in the County Court and for defending said case in the Circuit Court of Cook County; and the said defendants became liable to the plaintiff under Section 50 of Chapter 77 of the Hlinois Revised Statutes for five times $1700.00, or $8500.00 plus 6% interest on $1700.00 from July 30, 1928.”

The second count is substantially the same as the first but omitting the allegations of fraud and claiming judgment only for actual damages, plus interest. The third count was substantially the same as the second, except that it was alleged that Graydon refused to deliver the goods and chattels to Hammond.

The theory of plaintiff is (1) “that this is a common law action upon a written instrument under seal and may be brought at any time within ten years”; and (2) “that if the statute of limitations had in fact barred the claim against defendant, Graydon, his suit upon the levy bond in 1935, founded upon his liability to the plaintiff ... on his official bond and his counter claim on the levy bond in the case at bar . . . removed the bar.”

On the other side, the theory of defendant, Standard Accident Insurance Company is (1) “that the alleged cause of action, if any ever existed, is barred by the five-year Statute of Limitations, since the acts complained of are alleged to have occurred on or within 90 days after July 30, 1928”; and (2) “that the plaintiff has failed to allege an actionable breach of the condition of the bond and that consequently the complaint does not state a cause of action against this defendant. ’ ’

The theory of the former sheriff is that the suit was properly dismissed, notwithstanding he filed his answer.

The gist of an action on the sheriff’s official bond is the officer’s wrongful act and is barred by the 5-Year Statute of Limitations (§ 15, ch. 83, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.275]); People for use of Stubblefield v. Wochner, 244 Ill. App. 30; County of Sonoma v. Hall, 132 Cal. 589; Commissioners of Graham Co. v. Van Slyck, 52 Kan. 622; Spokane Co. v. Prescott, 19 Wash. 418; Hillyard ex rel. Tanner v. Carabin, 96 Wash. 366; Ryus v. Gruble, 31 Kas. 767; People v. Van Ness, 76 Cal. 121; People v. Putnam, 52 Colo. 517, Ann. Cas. 1913 E. pp. 1264-1266, 22 R. C. L. § 196.

In the Wochner case [244 Ill. App. 30], suit was brought against the sheriff and his sureties on his official bond in 1926. It was alleged in the declaration that the sheriff on January 10, 1917, without authority of law, took a promissory note from Stubblefield and surrendered possession of it to the circuit court of McLean county. Defendants filed two special pleas, viz., the 2-Year Statute of Limitations and the 5-Year Statute of Limitations. A demurrer to the first plea was sustained but overruled as to the second. Plaintiff elected to stand by his demurrer, judgment was entered against him, and he appealed. The court there said: “Appellant contends that the 5-Year Statute of Limitations does not apply, and as the action was brought within 10 years after the breach charged, the demurrer should have been sustained, as the action is based upon a written instrument and is governed by Cahill’s St. Ch. 83, par. 18. ’ ’ The court overruled this contention and held that the action was barred in five years, citing and discussing a number of authorities. Continuing the court there quoted from the Hillyard case [96 Wash. 366]: “ ‘While it is true this is an action against a bond, it is not an action on a written contract, as the basis of the action is the wrongful and illegal act of the principal upon which the liability of the surety is dependent.’ . . .” The Appellate Court continues: “The gist of the action is not the bond but the wrongful act of the officer. The bond is more in the nature of a collateral security and the cause of action is the misfeasance or malfeasance of the officer.” Citing authorities. And quotes with approval from the Gruble case [31 Kan. 767], the following: “The bond does not give the cause of action; the wrongs or delicts do; and the bond simply furnishes security to indemnify the persons who suffered by reason of such wrongs or delicts; . . . When the principal debt or cause of actions fails, the security must also fail; and, as we have stated before, a sheriff’s bond is simply a security, collateral to the main cause of action.”

In § 196, p. 510, 22 R. C. L. in discussing the Statute of Limitations in connection with official bonds it is said that the statute does not commence to run against the action until the close of the principal’s term of office “though the conversion of which he is found guilty took place at a much earlier time. . . . Since a bond normally does not increase the liability of a public officer but operates as collateral security against his wrongful acts, it follows that when a cause of action is barred as against the principal it is barred against the sureties.”

The Van Ness case [76 Cal. 121], was an action against the commissioner of immigration and his surety. The court after holding the Statute of Limitations barred the action said: “public officers and their bondsmen cannot be harassed by suits brought after the statutory periods of limitation have expired. ’ ’ And in the Hall case, [132 Cal. 589], an action was brought on the official bond of the county recorder for failure to pay over to the county fees collected by him. The court there referred to a number of authorities and held that the gist of the action was the failure of the principal to pay over the money; that the bond imposed on the principal no obligation different from that created by the statute and it was not the gist of the action but merely collateral thereto. “The bond is not the cause of action, but collateral thereto, and a means of which the county might avail itself. ’ ’

In the instant ease, the court did not err in sustaining the defense of the Statute of Limitations. We are also of opinion that the court did not err in dismissing the suit as to the former sheriff, although he had filed his answer, because he there pleaded the Statute of Limitations as a bar to the action. This he was authorized to do. Section 48, C.P.A. ch. 110, Ill. Rev. Stat. 1939 [ Jones Ill. Stats. Ann. 104.048]; Randall Dairy Co. v. Pevely Dairy Co., 278 Ill. App. 350.

Counsel for plaintiff says that “if the statute of limitations had in fact barred the claim against defendant, Graydon, his suit upon the levy bond in 1935, founded upon his liability to the plaintiff ... on his official bond and his counterclaim on the levy bond in the case at bar founded upon his liability to the plaintiff without regard to time, removed the bar, if any, of the statute.” Obviously this contention, if allowed, would in no way affect defendant, Standard Accident Insurance Company, but we are of opinion the contention cannot be sustained. The former sheriff, in his answer, set up the bar of the 5-Year Statute of Limitations. He also filed a counterclaim in which he sought to have his rights adjudicated on the levy bond.

This was a matter of precaution and we think in no way waived his defense of the Statute of Limitations.

■We are also of opinion that the suit brought February 21,1935, by the identical plaintiffs as those in the instant case, which was dismissed as to the Standard Accident Insurance Company and Sheriff G-raydon, is of no importance here except that we might add from the judgment entered in that case it appears that plaintiff in that case was of opinion his claim should be against the Hartford Accident & Indemnity Company, the surety on the levy bond, and it was in that judgment order made a party defendant, all pleadings were amended accordingly and summons was issued against it. In the instant case, each defendant interposed the 5-Year Statute of Limitations as a defense, and what both or either of them pleaded in the other case, is not controlling here.

The judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

Matchett, P. J., and McSurely, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    William H. Tegtmeyer et al., Defendants in Error, v. Daisy C. Tegtmeyer, Plaintiff in Error.
    Gen. No. 40,991.

      Opinion filed June 24, 1940.
    Rehearing denied July 8, 1940.
    Gold & Liebman, of Chicago, for plaintiff in error; Charles Liebman, of counsel.
    George L. Wire, of Chicago, for defendants in error.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this writ of error, Daisy C. Tegtmeyer seeks to reverse an order entered June 12,1933, awarding a writ of ne exeat republica and an order entered January 5, 1934, adjudging her to be in contempt of court for failure to answer questions and turn over property. Having failed to make bail fixed at $30,000 in the ne exeat proceeding, she was taken into custody July 27, 1933. She was also held by the sheriff under a mittimus issued pursuant to the contempt order.

Counsel for plaintiffs contend that a writ of error is abolished as a means of review in civil cases and § 74 of the Civil Practice Act, ch. 110, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.074], and cases construing that act are relied upon. We do not stop to discuss this phase of the case except to say that the Civil Practice Act went into effect January 1, 1934. The suit in this case was filed in 1925 and the writ of ne exeat issued in 1933, so that the procedure is not controlled by the Civil Practice Act. See Rule 1 of the Supreme Court.

In 1925, plaintiffs filed their bill in equity in the circuit court of Cook county to compel Mrs. Tegtmeyer to account for a $4,000 trust fund and any profits from the investment thereof. After the issue was made up, the cause was referred to a master who took the evidence, made up his report and recommended that a decree be entered in accordance with the prayer of the bill. Afterward the matter was heard before the chancellor and March 18, 1930, a decree was entered substantially as recommended by the master, from which Mrs. Tegtmeyer prosecuted an appeal to this court, where the decree was affirmed by another division of this court, the opinion being by Mr. Justice Gridley, Tegtmeyer v. Tegtmeyer, 259 Ill. App. 661 (Abst.). A further appeal was prosecuted to the Supreme Court where the judgment of this court was affirmed April 23,1932. Tegtmeyer v. Tegtmeyer, 348 Ill. 434. After the affirmance by the Supreme Court, the cause was referred to a master in chancery to take the account and while the matter was being there heard the record discloses that plaintiffs had considerable difficulty in having Mrs. Tegtmeyer appear before the master. June 12, 1933, plaintiffs filed their verified petition praying that Mrs. Tegtmeyer be required to answer the petition, but not under oath, and that she be stayed by the People’s writ of ne exeat repiMica from departing out of the jurisdiction of the court; that she be removed as trustee of the claimed trust funds; that a receiver be appointed to take charge, custody and control of all property found to belong to the trust fund, and that she be required to immediately turn over the property to such receiver or successor trustee. August 5, 1933, Mrs. Tegtmeyer filed her answer to the petition.

In the petition, which is 29 pages, it is alleged the decree was entered March 18,1930, in which it was found that Mrs. Tegtmeyer had in her possession certain property and securities which were charged with a trust in favor of plaintiffs and that she was ordered to account; that the matter was afterward referred to a master to take the account. It then sets up the proceedings had and the findings of the decree, the affirmance by the Appellate and Supreme Courts and specified certain property received by Mrs. Tegtmeyer, and that she was ordered to account. These facts will sufficiently appear from the opinions of the Appellate and Supreme Courts and need not be repeated here. We might say, however, that the petition goes into specific details as to the property, real and personal in which the trust fund, together with other funds, was invested and which the court decreed should be accounted for by Mrs. Tegtmeyer ; that there were various hearings before the master on the accounting and diligent efforts to secure an attendance by Mrs. Tegtmeyer before the master so that she might be interrogated as to the use made of the trust fund in investments, reinvestments, etc.; that prior to November 1, 1932, Mrs. Tegtmeyer regularly appeared before the master but since that date and subsequent to the sale of certain of the securities by Mrs. Tegtmeyer (for which it was claimed she was required to account), she did not attend before the master and that counsel for Mrs. Tegtmeyer stated their reason for being unable to have her present was that they were unable to communicate with her; that on April 18, the master issued his subpoena for her to appear which was served on her at her residence in Chicago but that she did not obey the subpoena and did not attend the hearing before the master; that at the request of counsel for defendant, the hearing was continued before the master from time to time and in the meantime Mrs. Tegtmeyer sold many of the securities which were the subject matter of the accounting; that upon learning of such sales, plaintiffs filed their petition and obtained an injunction restraining the transfer of some stock standing in the name of Mrs. Tegtmeyer; that she was not administering the trust in the interest of the beneficiaries but was antagonistic to them and stood in defiance of orders and processes of the court in refusing to give information as to the trust fund; that she “has converted into cash stocks, bonds and property belonging to the said trust fund with the design and intent to conceal herself and said funds and depart from the jurisdiction of this court, and remove said cash and all trust property and all her property from the jurisdiction of this court, ’ ’ and that petitioners would be greatly hindered and delayed in their efforts to realize the amounts due them upon the stating of the account; that she had threatened to depart from the State and the jurisdiction of the court and take her property with her and prevent petitioners from realizing anything on account of the trust property, regardless of the result of the litigation.

Mrs. Tegtmeyer, in her answer, admitted the entry of the decree of March 18, 1930; that pursuant to the decree she filed her report and account; that by the terms of the decree the $4,000 was adjudged to’ belong to complainants, together with $13,000 which belonged to her and was invested in Chicago real estate; that the decree finds this real estate was sold and a net balance realized of more than $46,000 but she avers that the net balance was $37,562.65. The answer further avers that she was required to deposit with the Chicago Title & Trust Company $10,000 so that the title to the real estate would be guaranteed by the Title Company, -etc. The answer then sets up in considerable detail what she did about the sale of certain of the property claimed to belong to the trust fund; admits that at different times she sold certain of the stocks but that they were her own property and what she has received for them is “much less than her proportionate share” of the property mentioned in the decree; “denies that she at any time threatened to leave the State of Illinois or the jurisdiction of this Court or to take from Illinois and jurisdiction of this Court any of said property so decreed as belonging to complainants or any part thereof. ’ ’

■Defendant contends (1) that the decree of March 18,1930, “and consequently, the ne exeat and contempt orders ancillary to it, are void, because the Courts in Illinois have never had jurisdiction of the subject matter of this proceeding. Although this was generally treated by the Courts and counsel as a lawsuit involving the preservation and administration of a trust, it appears from the record that in truth and in fact the proceedings constituted an administration by the Illinois Courts of assets admittedly belonging to an administrator appointed and acting under the laws and Courts of Iowa. We contend that the Circuit Court, and also the Appellate Courts acting in proceedings initiated in the Circuit Court, do not have jurisdiction of the subject matter of the proceedings, because under the Illinois Constitution, Circuit Courts have no original jurisdiction in Probate proceedings; and because the Courts in Illinois do not have jurisdiction, in any event, of the subject matter of proceedings for the distribution of property of a foreign administrator, acquired by him as such in a foreign jurisdiction. ’ ’ And the argument in support of this is that the assets of the estates of Louise Tegtmeyer and Henry Tegtmeyer were being administered in the District Court of Des Moines county, at Burlington, Iowa. There is no merit in this contention. That question was litigated and decided adversely to Mrs. Tegtmeyer when an appeal was taken from the decree of March 18,1930. In the opinion of this court, written by Mr. Justice G-ridley, the court said: “Equally without merit, in our opinion, is Counsel’s further contention that the circuit court was without jurisdiction to enter the decree in question for the reason that the situs of the trust fund was in Iowa. The fact that the present proceeding is against the widow [Daisy C. Tegtmeyer] of Edward Tegtmeyer, deceased (on whose estate no administration was had), does not prevent a court of equity from taking jurisdiction, as she may be considered a trustee de son tort. (Lehnard v. Specht, 180 Ill. 208, 216.) Furthermore, as a suit to enforce a trust is transitory and not local, a court of chancery has jurisdiction of such a suit whenever the trustee may be found, regardless of where the property is located. (22 Ency. Pl. & Pr., p. 20; Johnson v. Gibson, 116 Ill. 294, 302; Craft v. Indiana etc. R. Co., 166 Ill. 580, 593.) And it appears that, after the creation of the trust in 1913, the fund was invested in land in Cook County, Illinois (where both the trustee, Edward, and his wife, Daisy, resided, and continued to reside until his death, and she thereafter), and the title to the land was taken in both as joint tenants. Hence the situs of the trust fund and the avails thereof remained in Cook County, Illinois. ’ ’ Moreover when the case was here on another occasion (292 Ill. App. 434) another ground for quashing the writ was urged — the law does not permit reviewing cases by piecemeal.

But counsel for defendant says: “Even though the original decree below [1930] has been affirmed by this Court and by the Supreme Court on appeal, the question of jurisdiction of the subject matter may be raised at this point,” and cites the case of People v. May, 276 Ill. 332; same case reported in 251 Ill. 54.

In 251 Ill. 54, suit was brought on his official bond against the clerk of the circuit court of St. Clair county on the ground that in approving an appeal bond as directed by the court, he accepted as sole surety a nonresident of Illinois. A demurrer to the declaration was sustained, which was affirmed by the Appellate Court but reversed-by the Supreme Court. In that case the question of the jurisdiction was in no way mentioned. After the case was retried in the circuit court, plaintiff filed an amended declaration; 32 pleas were interposed, general replications were filed to 17 of them and demurrers were sustained to the remainder. There was a verdict and judgment in plaintiff’s favor which, on appeal, was affirmed by the Appellate Court and by the Supreme Court. [276 Ill. 332.] The Supreme Court in its opinion said defendants moved to dismiss the suit “on the ground that this court had no jurisdiction of the subject matter when the record was in this court before, and therefore the judgment reversing the judgment of the Appellate Court was a nullity and the judgment of the Appellate Court in their favor was final.” But the court continuing said: “it is never too late to question the jurisdiction of a court over the subject matter of a particular case and consent of the parties will not confer such jurisdiction.” The court overruled defendants’ motion to dismiss and affirmed the judgment. As stated in the May case, the question of jurisdiction was not passed upon by the trial or Appellate Courts. If it had been, that question would have been determined and could not again be relitigated. Stoll v. Gottlieb, 305 U. S. 165.

If the law was as counsel for defendant contends, then there would be no end to litigation. If in the trial court its jurisdiction over the subject matter was questioned and overruled and the same contention was made on appeal to the Appellate and Supreme Courts, and denied, obviously that would be a termination of the question and the matter could not be litigated in any other court at any other time or place. This is the holding of our United States Supreme Court in the Gottlieb case, and we think no case in any court has ever held to the contrary. The question of jurisdiction was settled in 259 Ill. App. 661.

As to the sufficiency of the petition for the writ of ne exeat, counsel for defendant says the petition “shows that it does not contain a single fact upon which to base the conclusion that Daisy C. Tegtmeyer was about to depart from the state,” and Brophy v. Sheppard, 124 Ill. App. 512, is cited to the point that the writ should not have been issued. We might say that since we hold the trial court had jurisdiction both of the person and the subject matter, and since the contention now made was not urged in the trial court, it is elementary that in the state of the record such point can not be urged for the first time in a court of review. But, as stated in our former opinion, [292 Ill. App. 434] “although it was charged in the petition filed by plaintiffs for the writ of ne exeat, that defendant was about to remove from the State and take therefrom the property which the court had theretofore decreed belonged to plaintiffs; and although defendant denied this allegation in her . . . answer, yet so far as we are advised, there was no hearing of- the issue raised by the petition and answer. Obviously if the charge in the petition was not sustained by proof, the writ would necessarily be quashed.” We have quoted from both the petition and answer and think that a prima facie case was made by the allegations of the verified petition and nothing to the contrary was held in the Brophy case and the issue raised by the petition and answer is still undetermined in the trial court.

We might suggest, however, that if application were made to the chancellor to reduce the amount of the bond, which was fixed in July, 1933 at $30,000, in view of what has transpired since that time, the amount of the bond might well be very materially reduced. July 8, 1937, this court ordered that the appeal operate as a supersedeas in the ne exeat phase of the case, upon Mrs. Tegtmeyer giving bond for $5,000, and also that the appeal operate as a supersedeas in the contempt proceeding upon her entering into a bond for $2,000.

Such bonds were approved and Mrs. Tegtmeyer released. [See 292 Ill. App. 434.] After the affirmance by us she voluntarily returned to the custody of the sheriff. Afterward in the writ of error proceeding now before us, we ordered that the writ be made a supersedeas as to both phases of the case upon her giving bond of $1,000. Such bond was approved and filed and she was released. There is no complaint so far as we are advised that Mrs. Tegtmeyer has left the jurisdiction of the court or intends to do so.

We might also say that although the original bill sought to recover only the $4,000 with interest thereon at 4%, which $4,000 was, left with the administrator under the terms of the written agreement entered into between all of the parties, including defendant, on October 20,1913, yet defendant, Mrs. Tegtmeyer, sought to prevent the recovery from her of the $4,000 although there was no defense, legal or equitable, of any kind or character. By the terms of the trust agreement, the $4,000 should have been returned without question.

As to the contempt order:

Defendant contends that the order finding her guilty of contempt is erroneous and must be reversed because “It is so drawn that this Court cannot tell from inspecting it that the defendant could have performed the acts mentioned therein, or that she was guilty of a contempt in not performing them” — that the order is ambiguous and this court can not, from a reading of it, “determine what acts on her part would amount to compliance therewith.” And counsel says that the order of commitment is not punitive but remedial. Continuing counsel says defendant “was directed in open Court to surrender to the receiver the money and property mentioned and described in the order of August 5,1933, but refused to do so;” that she was ordered and directed to discover and disclose the disposition and location of moneys described in the order and persisted in her refusal to do so; that she was directed to answer fully and correctly without evasion the questions propounded to her before the master and to answer “competent, pertinent, relevant, proper and material questions” which are not set out in the order and which she had refused to answer; that she was ordered and directed to report and account fully and disclose all investments, etc., concerning the proceeds of the sale of the property which she refused to do and that in each of these defendant’s conduct was willful and contumacious.

The order finding defendant guilty of contempt covers more than 112 printed pages of the record. It contains a copy of the decree of 1930, recites what had theretofore taken place in the suit; a certificate of the master in chancery; questions put to Mrs. Tegtmeyer on the hearing before the master, which she refused to answer (which were clearly pertinent), and that she stated she refused to answer them not on the ground that her answer would tend to incriminate her but “that is my private funds, and, as I said, I am the only one that is being made to comply with the laws, and if others can break the laws, then so can I, and I am going to take that stand.”

We think it would serve no purpose to detail the questions put to her before the master but we are clearly of opinion that her refusal to answer them was contrary to the law and wholly unwarranted. That if the order was too broad in requiring defendant to answer ‘ competent, pertinent, relevant, proper and material questions,” neither the master nor the trial court will have any difficulty in passing on that phase of the matter. But on the whole we think the questions were pertinent and proper. And as said in our former opinion [292 Ill. App. 434-447], “Nor is any argument made by counsel for defendant that defendant is unable to comply with the contempt order, and we think it obvious that if she did so she would be released in the contempt and ne exeat phases of the matter. ... If a showing were made that defendant was now unable to turn over the money to the receiver as ordered and if she would truthfully answer the question a different question would be presented and the ruling of the Georgia court in the Nisbet case would be applicable. But no such showing has been attempted. If defendant has been long confined in jail it is because she has defied the court. As has often been quaintly expressed, defendant carries the key to her prison in her own pocket. ’ ’ The record is in the same condition now as it was when it was here on the former appeal. The order awarding the writ of ne exeat and the order holding defendant to be in contempt of court are affirmed.

Orders affirmed.

Matchett, P. J., and McSurely, J., concur.


text:
    Truscon Steel Company of Canada, Ltd., Appellant, v. Peter Biegler, Appellee.
    Gen. No. 41,013.

      Opinion filed June 24, 1940.
    Musgrave, Oppenheim, Price & Ewins, of Chicago, for appellant.
    Cummings & Wyman, of Chicago, for appellee; Edwin O. Schiewe, of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action on a judgment obtained by him against defendant in the Supreme Court, a court of general jurisdiction, of the Province of Ontario, in the city of Windsor, Canada, to recover $1,315.85 (being the amount of the judgment and costs), with interest at 5 per cent per annum from October 16, 1933. The 5-Year Statute of Limitations was interposed as a defense. The case was tried by the court without a jury on an agreed statement of fact. The court sustained the defense, entered judgment accordingly, and plaintiff appeals.

From the stipulation of facts it is agreed that judgment was entered October 16,1933 for $1,315.85 in favor of plaintiff and against defendant by the Canadian court; that October 27, 1936, and again on August 11, 1938, defendant promised to pay the amount of the judgment but was not financially able to do so at the time. The suit was filed December 16,1938, more than five years after the judgment was entered but less than five years after the two promises of payment were made.

Sec. 15, ch. 83, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.275] provides: “Actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued.”

An action based upon a judgment rendered in another State must be brought within five years. Schemmel v. Cooksley, 256 Ill. 412, and such action is a “civil action” within the meaning of sec. 15. Bemis v. Stanley, 93 Ill. 230. The Bemis case was an action of debt upon a judgment rendered in the State of Ohio instituted in the circuit court of Cook county more than 10 years after judgment was entered by the Ohio court. The court, after quoting sec. 15, which is still in full force and effect without change, said: “An action brought in this State upon a judgment rendered in another State, is undoubtedly a civil action, within the intent and meaning of this section of the statute.” And by the rule of comity, the same force and effect is given to judgments of foreign countries as is given to the judgments of sister States. Baker v. Palmer, 83 Ill. 568; Roth v. Roth, 104 Ill. 35. It is also the law that a promise of a debtor to his creditor that he will pay the debt takes the case out of the 5-Year Statute of Limitations. Abdill v. Abdill, 292 Ill. 231-234. The court there said: “No formal set of words is necessary to constitute an acknowledgment of a debt and a promise to pay it. An absolute acknowledgment of the continuance of the debt and a promise to pay it is sufficient, and any language of the debtor to the creditor clearly admitting the debt and showing an intention to pay it will take the case out of the statute. ’ ’ But counsel for defendant say, “The Statute of Limitations applying to foreign judgments is not tolled by an oral promise of payment, ’ ’ citing Ludwig v. Huck, 45 Ill. App. 651 and Brammell v. Wolf, 173 Ill. App. 156.

In the Ludwig case, suit was commenced before a justice of the peace in 1892 to recover the amount of two judgments rendered in 1880 in a justice’s court. On appeal to the county court, plaintiff had judgment. The Statute of Limitations was interposed as a defense. Plaintiff sought to overcome the defense by proof of a parol promise to pay made in 1891. The Appellate Court reversed the judgment and held that where a judgment was barred by the Statute of Limitations it could not be revived by parol promise to pay by defendant. The court said it was immaterial whether the 5 or 10-Year Statute of Limitations applied because the suit was not brought until more than 12 years after the judgment was rendered, and continuing said: ‘ Having been barred, the question arises, did the parol promise relied on create a new cause of action upon which appellee was entitled to maintain a suit and recover a judgment? The original indebtedness of appellants to appellee was merged in the two judgments sued on in this case; the original causes of action were discharged by these judgments and no contract or debt remained which could be made the subject-matter of a new promise to pay. Richardson v. Aiken, 84 Ill. 221; Wayman v. Cochrane, 35 Ill. 151; Boynton v. Ball, 105 Ill. 627; Mount v. Scholes, 120 Ill. 394.” None of these four cases sustained the rule announced in the quotation just made.

In the Richardson case, plaintiff sued Aiken alleging an indebtedness to Richardson by a corporation of which Aiken was a stockholder. A statute involved in that case rendered stockholders liable for the debts of the corporation to the extent of the stock held by them. Defendant pleaded nil debit. There was a trial without a jury and a finding and judgment in plaintiff’s favor which, was reversed on appeal. A number of counts were in the declaration. On the trial plaintiff proved items of account due him by the corporation and that the promissory note mentioned in the count on the note was given for such indebtedness. The evidence showed that a judgment had been rendered on the note and a transcript of the judgment was offered in evidence. This was objected to on the ground that there was no service of process in that case and therefore the court had no jurisdiction of the defendant corporation. The evidence of the judgment was excluded on that ground. This was held to be error and the judgment was reversed. The court said: “The transcript was proper evidence, whether void or valid. If valid, it was proper to support the count upon the judgment. If void, it was competent, under the count upon the note, for the purpose of rebutting the inference that the note was merged in a judgment, and thus showing that the note was still a subsisting canse of action.”

In the Way man case [35 Ill. 151], it was held that by a judgment or decree the contract or instrument upon which the proceeding is based was merged in the judgment and although the instrument bore interest at 10 per cent, the judgment but 6 per cent under the statute.

In the Boynton case [105 Ill. 627], an action of debt was brought upon a decree rendered in the circuit court several years prior to the commencement of the action. Defendant filed a plea of general issue. Afterward he was adjudged a bankrupt in the United States court and this was interposed as a defense but it was overruled and the judgment was affirmed by the Appellate Court and by the Supreme Court, the latter holding that a judgment obtained against one after he is adjudged a bankrupt creates a new debt which cannot be proved in bankruptcy. And in the Mount case, [120 Ill. 394] the declaration contained a special count on notes and also money counts. Defendant filed a plea of nonassumpsit and after the, issue was joined nothing further was done until about two years thereafter, when defendant filed a plea of former recovery to which a demurrer was sustained. The court held the plea bad, saying: “we think its failure to state the time when the judgment was obtained, rendered it substantially defective.”

From what we have said of the four cases cited in the Ludwig case, we think it clear that nothing can be found in any of them to warrant the statement by the Appellate Court that after the two judgments were rendered, “no contract or debt remained which could be made the subject-matter of a new promise to pay.” Certainly the amount of the two judgments was a debt remaining due and unpaid. A money judgment requires that defendant pay plaintiff the amount of the judgment and whether the judgment is a debt, or any other terminology is used to describe it, it means that the amount of it must be paid by defendant to relieve him of his obligation.

Webster’s Dictionary defines “judgment” as “an obligation especially of a debt created by decision or decree of a court.” It defines “debt” as “a debt of record,” “a judgment.” The Century Dictionary defines “debt” as a “debt which is evidenced by legal record”; and MacMillan’s Modern Dictionary defines “judgment” as a “debt which a court of law finds to be due and orders to be paid.”

It is well established by our Supreme Court that an oral promise to pay the amount due “on unwritten contracts express or implied” will lift the bar of sec. 15 of our Limitation act, above quoted. Such unwritten contracts are mentioned in sec. 15. In the same category that section also specifically mentions “all civil actions not otherwise provided for.” If the oral promise to pay the amount claimed under an “unwritten” contract lifts the bar, for the same reason should the oral promise to pay a judgment which is a “civil action” as mentioned in the same section, lift the bar. Whether the Appellate Court was right in stating that after the judgment there was no contract is not in our opinion of importance in passing on the question before us.

In the Brammell case [173 Ill. App. 156], suit was commenced May 9, 1910, on a judgment rendered by a justice of the peace January 13,1900. Defendant interposed the Statute of Limitations in bar. The court there quoted from sec. 16, article 11, of the act of 1895 in relation to Justices and Constables (ch. 79, par. 134, p. 1950, Ill. Rev. Stat. 1939 [ Jones Ill. Stats. Ann. 71.130]), as follows: “An action may be brought upon a judgment of a justice of the peace at any time within ten years next after the rendition thereof and not after-wards.” And continuing the court said: “More than ten years having elapsed after the original judgment was rendered, and before this suit was commenced, appellants were entitled to rely upon the bar provided for by the statute. ’ ’ But the court said that plaintiff relied upon a new promise to pay the debt by offering evidence tending to show that in 1900, 1901 and 1902, one of defendants had performed services for plaintiffs for which credit upon the judgment was given. The court then refers to the Ludwig case (which was decided before the enactment of sec. 16, above quoted), followed the Appellate Court and quoted from that case saying that after judgment was rendered “no contract or debt remained which could be made the subject-matter of a new promise to pay. ’ ’ And the judgment was reversed. The Ludwig case is the only authority cited in that case.

Counsel for defendant further say: “A judgment is not a contract and therefore an oral promise to pay a judgment will not toll the running of the Statute of Limitations since no contract or debt remains which can be made the consideration for such promise, ’ ’ citing Belford v. Woodward, 158 Ill. 122; Ambler v. Whipple, 139 Ill. 311; Rae v. Hulbert, 17 Ill. 572, and in support of this counsel say: “There is considerable conflict of authority among the various states on the proposition of law as to whether a judgment is or is not a contract”; and that our Supreme Court in the Rae case [17 Ill. 572], says: “A judgment is no more a contract than a tort. ’ ’

A consideration of these cases, we think, shows that the courts were construing particular statutes as to the meaning of the word “contract” as used in the several statutes. As we have heretofore stated, whether a judgment is a “contract” within the meaning of sec. 15 of our Statute of Limitations is not of importance for the reason that the instant case, which is a suit on a foreign judgment, is a “civil action” within the meaning of sec. 15 [Bemis v. Stanley, 93 Ill. 230], and therefore, like other civil actions, the 5-year bar of the Statute is' lifted when a new promise to pay the judgment is made within five years before the suit is commenced. And in New York where the law is that a judgment is not a contract, yet it is held that a promise to pay the judgment tolls the Statute of Limitations. See also Jennings v. Loucks, 297 N.Y.S. 893; Stevens v. Hewitt, 30 Vermont, 262; McCormick v. Brown, 36 Cal. 180; Darsey v. Mumpford, 58 Ga. 119; Spilde v. Jolmson, 132 Iowa 484.

The judgment of the municipal court of Chicago is reversed and the cause remanded with directions to enter judgment in plaintiff’s favor for the amount of its claim.

Reversed and remanded with directions.

Matchett, P. J., and McSurely, J., concur.


author: Mr. Presiding Justice O’Connor Mr. Justice Matchett Mr. Justice McSurely

text:
    Thomas Broniewicz, Appellant, v. John Wysocki, Appellee.
    Gen. No. 41,065.

      McSurely, J., dissenting.
    Opinion filed June 24, 1940.
    John A. Dill, of Chicago, for appellant; Emil Seerup, of Chicago, of counsel.
    Buzane, Berkos & Fillmore, of Chicago, for appellee; Davis P. Buzane and Ralph Marrandino, of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

April 30, 1938 plaintiff as lessor and defendant as lessee, entered into a written lease whereby the second floor of a building in Chicago was leased to defendant for a period commencing April 30, 1938 and expiring April 29,1939, at a rental of $36 per month, payable in advance. Defendant paid the rent for the first two months of the term but having failed to pay for the third month plaintiff on July 1 [the abstract erroneously shows July 18] 1938, served a five-day notice demanding payment of the rent due and that unless payment was made within five days “your Lease of said premises, will be terminated. ’ ’ Afterward the rent not having been paid, plaintiff brought an action of forcible detainer and had judgment on July 11, 1938. Defendant, within 10 days, vacated the premises in compliance with the judgment in the forcible detainer suit. May 19, 1939, plaintiff caused judgment by confession to be entered on the lease for $421.50, being rent for 10 months at $36 per month and $61.50 attorneys’ fees. August 2, 1939, defendant filed an amended petition to vacate and set aside the judgment. Plaintiff filed an answer, the matter was heard by the court on the facts as stipulated, August 31, 1939, the judgment was reduced to $36, and plaintiff appeals.

The law is, and it seems to be conceded by both parties, that the obligation of the tenant to pay rent ceases when he is dispossessed by the landlord but that the tenant is not relieved in such case where there is an express covenant in the lease that the tenant will be liable for rent notwithstanding the re-entry of the landlord before the expiration of the term, and although the landlord has obtained judgment for possession in the forcible detainer suit. But counsel for defendant say: “The rule that where it is stipulated in the lease that the tenant shall remain liable for all rent to the end of the term notwithstanding there has been a re-entry for default, the obligation of the tenant is not released by a judgment for possession for the non-payment of rent' applies to cases where the landlord elects to take advantage of the provisions in the lease by keeping the lease in force and effect, and not to cases where he elects to terminate and end the lease by his own acts.” And in support of this the argument seems to be that the five-day notice given by plaintiff to defendant, as above mentioned, stated that unless the amount due was paid within five days “your Lease of said premises, will be terminated,” and that if plaintiff desired to keep the lease alive, the notice should have stated “that unless the rent due is paid by a specified time ‘your lease will be terminated under the terms of the said lease’ or words to that effect.” We think this argument is without substance and hypercritical.

Paragraph 16 of the lease provides: “Sixteenth.— The obligation of Lessee to pay the rent reserved hereby during the balance of the term hereof, or during any extension hereof, or any hold-over tenancy created by acts of the parties shall not be deemed to be waived, released or terminated, nor shall the right and power to confess judgment given in clause fifteenth hereof be deemed to be waived or terminated, by the service of any five-day notice, other notice to collect, demand for possession, or notice that the tenancy hereby created will be terminated on the date therein named, the institution of any action of forcible detainer or ejectment or any judgment for possession that may be rendered in such action, or any other act or acts resulting in the termination of Lessee’s right to possession of the demised premises. The Lessor may collect and receive any rent due from Lessee, and payment or receipt thereof shall not waive or affect any such notice, demand, suit or judgment, or in any manner whatsoever waive, affect, change, modify or alter any rights or remedies which Lessor may have by virtue hereof. ’ ’ There is nothing illegal or improper in such a provision of the lease. Grommes v. St. Paul Trust Co., 147 Ill. 634, 641, 643; Central Invest. Co. v. Melick, 267 Ill. 564, 568; Truly Warner Co. v. Royal Indem. Co., 259 Ill. App. 485; Waller v. Wilson, 282 Ill. App. 418.

In the Grommes case, “The lease provides that, if the lessee shall fail to make any of the payments of rent, or to fulfill any of the covenants of the lease, it shall be lawful for the lessor to re-enter and take and hold possession ‘without such re-entry working a forfeiture of the rents to be paid ... by the' party of the second. part . . . during the full term of this lease. ’ ’ ’ The court, in passing on this provision of the lease said (p. 643): “There is nothing illegal or improper in an agreement, that the obligation of the tenant to pay all the -rent to the end of the term shall remain notwithstanding there has been a re-entry for default; and, if the parties choose to make such an agreement, we see no reason why it should not be held to be valid.”

In the Melick case [267 Ill. 564, 568], after judgment in forcible detainer for the possession of the leased premises, suit was brought to recover rent after the premises were vacated which was after judgment in the forcible detainer suit. The lease contained a provision that in case the tenant defaulted in the payment of rent, the lessor had the right to re-enter and take possession “either by forcible entry, detainer proceedings or otherwise, and hold and enjoy the same fully and absolutely, without the re-entry working a forfeiture of the rents to be paid.” And it was held that the provision of the lease was valid and the tenant was liable after he had vacated the premises. The court there said: “The case of Grommes v. St. Paul Trust Co., 147 Ill. 634, is decisive of the second point raised. There was involved in that case a lease with practically the same provisions as those contained in the third clause of the lease here in question, and it was there said: There is nothing illegal or improper in an agreement that the obligation of the tenant to pay all the rent to the end of the term shall remain notwithstanding there has been a re-entry for default, and if the parties choose to make such an agreement we see no reason why it should not be held to be valid as against both the tenant and his sureties. ... It may not be strictly accurate or correct to call the money to be paid after re-entry rent, or to treat the lease as in force after a re-entry. But the parties have a right to fix the amount of the rent to accrue according to the terms of the lease as the amount of damages to be paid by the tenant in case of a breach of his covenants. It can make but little practical difference whether the sum agreed to be paid be called rent or damages. It may be regarded as damages for the purposes of this suit. — Hall v. Gould, 13 N.Y. 127; Underhill v. Collins, 132 id. 269.’ Whether, as the plaintiff in error contends, by bringing its action of forcible detainer under our statute the defendant in error elected to determine the lease is unimportant under the holding in that case, as the amounts accruing after the re-entry are more properly regarded as the damages agreed upon between the parties in case of a breach of the covenants of the lease. ’ ’

Counsel for defendant cite a number of authorities including Kandl v. Kandl, 261 Ill. App. 76, upon which they seem to place chief reliance. In that case, judgment by confession was entered under the terms of the lease which contained a paragraph almost identical with paragraph 16, which is in the lease before us. The judgment by confession was opened, the matter heard and the court found in favor of defendant. Plaintiff landlord appealed, but the judgment was affirmed. In that case plaintiff had a judgment in a forcible detainer suit based on the failure of defendant to pay rent. A week after the judgment the tenant vacated. In that case plaintiff’s renting agents wrote the tenant that they would expect the rent paid promptly on the first of each month beginning November 1. Four days after, without giving any further notice, they brought forcible detainer. As soon as the tenant was served in the forcible detainer case, he went to the renting agents, tendered them the rent for November but “ ‘ they refused to accept the money,’ — informing defendant that they had been so instructed by plaintiff and also instructed ‘not to accept any rent for said apartment. ’ ’ ’ That a week after the judgment was entered in the forcible detainer suit, defendant received another communication from plaintiff’s attorneys to the effect that he “would be allowed to remain in possession, provided he pay the November rent together with court costs, amounting to $8. ’ ’ At that time the tenant had already vacated- and surrendered the apartment. The court then discusses the authorities and said that in compliance with the judgment in the forcible detainer case defendant had moved out of the premises “and that after he had done so plaintiff’s policy seems to have undergone a change. ’ ’ We think the facts in that case are not substantially the same as in the case at bar. There the court holds that the conduct of the landlord showed he intended to terminate the lease, having refused to accept rent.

Under the holding in the Grommes, Melick and other cases above cited, we hold that defendant was not relieved of his obligation under the lease and the judgment of the municipal court of Chicago is reversed and the cause remanded with directions to reinstate the judgment entered by confession, no complaint having-been made as to the amount of the judgment.

Reversed and remanded with directions.

Mr. Justice Matchett

specially concurring :•

The authorities support the views stated in the opinion of the Presiding Justice. The point made in the dissenting opinion is not argued in the briefs. I therefore concur in the judgment reversing and remanding.

Mr. Justice McSurely

dissenting:

While conceding the applicability of the decisions which support paragraph 16 of the lease, in none of them was the point ¡presented or considered as to whether this will prevail against the provisions of the statute. In French v. Willer, 126 Ill. 611, it was held that a power of attorney, in a lease, to' confess judgment in a forcible detainer suit is unauthorized by law and void, the opinion saying (p. 620), “ ‘Parties can not by their contracts vary the procedure in courts of justice prescribed by the statute. ’ ” This has been followed in other decisions in this State.

The Forcible Detainer statute (ch. 57, sec. 2), prescribes that the action may be maintained when any lessee holds possession without right “after the determination of the lease ... by notice to quit or otherwise,” and the Landlord and Tenant statute (ch. 80, sec. 8), provides that the landlord may serve notice on the tenant demanding payment of rent and unless payment is made within the time mentioned in the notice ‘ ‘ the lease will be terminated, ’ ’ and if the tenant shall not within the time mentioned pay the rent due, “the landlord may consider the lease ended, and sue for possession under the statute in relation to forcible entry and detainer. . . .” These provisions clearly lay down as a condition of maintaining the action of forcible detainer, the end or termination of the lease in its entirety, and applying the holding in French v. Willer, any provision in the lease inconsistent with the conditions stated in the statute is void.


author: Mr. Justice Scanlan

text:
    Mary Kovacs, Appellee, v. Guy A. Richardson et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 41,133.
    Opinion filed June 26, 1940.

      Frank L. Kriete, Warner H. Robinson and Arthur J. Donovan, all of Chicago, for appellants; John R. Guilliams, of Chicago, of counsel.
    Lester E. Williams, of Chicago, for appellee; Alec E. Weinrob and Ben E. Polowsky, both of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

In a tort action a jury returned a verdict finding defendants guilty and assessing plaintiff’s damages at the sum of $1,000. Defendants appeal from a judgment entered upon the verdict.

On the evening of April 25, 1936, plaintiff became a passenger on a southbound Halsted street car on Clark street, operated by defendants. She paid her fare and received a transfer ticket, as she intended to transfer to a Roosevelt road car. When the street car approached Roosevelt road plaintiff walked toward the front platform. She testified that she took hold of the vertical wooden bar near the door and that the motorman opened the door before the street car came to a stop at Roosevelt road; that while the street car was still moving the car jerked and she fell out backwards, landing on the street. George G. Rich, a witness for plaintiff, testified that he saw the car approaching Roosevelt road and that before it came to a stop he saw the front door open and plaintiff fall out; that plaintiff fell from the front platform into the street. During the examination of the witness the following occurred: ‘ ‘ Q. Do you know how far the street car went after the lady was thrown or fell out? A. Oh, two or three feet. Q. Will you describe the type of stop that street car made as well as you can? A. A rather sudden jerky stop.” Defendants’ theory of fact is that “the street car came to a full stop and that while it was standing still and while plaintiff was stepping down on the step, she fell into the street. ’ ’ Some of defendants’ evidence supported this theory of fact.

As usual, defendants have filed an able and ingenious brief. The following are the propositions relied upon for reversal: “1. Plaintiff failed to prove actionable negligence. 2. The verdict is against the manifest weight of the evidence. ■ 3. There was error in the refusal of instructions.”

In support of proposition 1 defendants argue that plaintiff’s evidence is not sufficient to show “the-character, extent and force of the alleged jerk or that it was sufficient to cause a person who was standing on the platform and exercising due care for his or her own safety, to be thrown off the street car ... or that it was such a jerk as could be avoided in the practical operation of the street car and not a jerk or movement as is usually incidental to the stopping of a street car. ’ ’ We have carefully followed the clever argument made in support of proposition 1, but we find it without merit.

As to proposition 2: We have seen fit to read the entire part of the transcript of the record that bears upon the manner of the accident and we are satisfied that we would not be justified in holding that the verdict is against the manifest weight of the evidence. Indeed, while it is true that defendants called four witnesses who gave testimony as to the accident, a careful analysis of their testimony satisfies us that the jury were justified in believing plaintiff’s theory of fact as to the manner in which the accident occurred. Three of the witnesses who testified for defendants were employed by them. One of the witnesses, the conductor, did not see plaintiff fall, and the first that he knew of the accident was after the car had stopped at Roosevelt road and he was waiting for the light to turn green so that he might give the bell to the motorman to go ahead. He testified that at that time he ‘ ‘looked out alongside of the car” and saw the motorman helping plaintiff “up off the street” the motorman carried her to the rear of the car but that he, the witness, did not follow them, as he remained at the front to get witnesses. The direct testimony of Cornelius Sheehan, who was working as a watchman for defendants, supported defendants ’ theory of fact, but it was entirely discredited upon cross-examination. Upon direct examination Sheehan testified that he saw the accident happen; that when the southbound Halsted street car approached Roosevelt road it stopped “in the ordinary way.” “Q. Was there any jerking or unusual motion that you saw? A. No. Q. When it stopped, what else did you observe? A. I remember there was a man walked across the street, and a lady got off and she stumbled and fell. Q. What platform did- she get off of? A. The front platform. Q. What was the car doing at the time the woman fell off the car ? A. The car was standing still. ’ ’ He further testified that at the time of the accident he was watching tools and cement belonging to defendants that were on the south side of Roosevelt road. On cross-examination the following occurred: “Q. When you first saw it, it was stopped, is that right? A. That is right, yes. Q. When you first looked up and saw that street car and it was at a stop, what else did you see? A. I looked around and I seen a man cross over ahead of me and then I just happened to look around and a woman stumbled off the car, I guess, and fell on the street, she was laying there. Q. You guess? A. Yes. Q. Didn’t you see it? A. Yes, I saw it. Q. What did she stumble on? A. The way I looked at it, she must have stumbled on the step and fell on the street. Q. You use the words ‘must have.’ Did you see her stumble on the step? A. No, I didn’t. Q. When you first saw her she was already in the street, wasn’t she? A. Yes. Q. When you first looked up she was lying in the street, isn’t that the fact? A. That is right. Q. You didn’t see her fall off of the street car at all, did you? Yes or no. A. I seen her after she fell. Q. After she fell? A. Sure.”

As to proposition 3: Defendants contend that the court erred in refusing to give the following instruction requested by them: “21. If you believe from the evidence that the injury to the plaintiff, if she was injured, was the result of a mere accident which occurred without negligence on the part of the defendants as charged in the complaint, or in some count thereof, then the defendants are not liable in this case.” Under the facts of the instant case this instruction could only confuse and mislead the jury. That was its plain purpose. In the case of Streeter v. Humrichouse, 357 Ill. 234, Mr. Justice Farthing hit the nail on the head when he held that an instruction like the one in question should not be given in a case unless there was evidence that a plaintiff was injured through accident, alone. In the instant case, if the accident to plaintiff occurred through the negligence of defendants, or through the negligence of plaintiff, or through the negligence of plaintiff and defendants, the injuries to plaintiff would not be caused by ‘ ‘ a mere accident. ’ ’ Even if the instruction in question were a proper one, defendants would not be in a position to complain of its refusal. Defendants’ given instruction number 9 states: “The plaintiff does not make out a case against the defendants, Chicago Surface Lines, by proving the mere happening of the accident and an injury . . . .” The instruction then goes on, at length, to detail the law in respect to the proof required of her before she can recover. The rights of defendants were fully protected by other instructions given by the court.

Defendants complain that the court erred in refusing to give the following instruction, offered by them: “26. The court instructs the jury that the mere fact that a street car gives a sudden movement when stopping or that it moves with some unevenness is in itself no proof of negligence in the operation of the car if such sudden or uneven movement is usually and necessarily incident to the movement and stopping of street cars.” This instruction ignores essential facts in plaintiff’s case, viz: that plaintiff approached the front door for the purpose of leaving the car; that the motorman opened the door before the ear was stopped; that while plaintiff was standing by the open door the street car made a ‘ ‘ sudden jerky stop. ’ ’ The instant instruction is highly argumentative and would tend to mislead the jury. Defendants cite no Illinois case where a like instruction was approved. The only Illinois case cited in support of the instruction is Mumaugh v. Chicago City Ry. Co., 180 Ill. App. 229. No such instruction as the instant one was before the court in that case for consideration. There it appears the plaintiff testified that he noticed that the car was crowded, and (p. 233) “without making any effort to get inside the car or upon the platform or the step of the ear, and without any apparent necessity for such action, he voluntarily took a seat upon the rear fender, where two other boys were then riding.” The plaintiff further testified that while he was in that position the car jolted or lurched and he was thrown from the fender to the ground, (pp. 233, 234) “falling to one side of the track in such a position that he was immediately struck on the head by another car which just at that moment came up on the other track.” A passenger on the rear platform testified that plaintiff was not riding on the fender but was on the step on the “blind side” of the car, outside the closed doors of the vestibule. The Appellate Court believed this testimony as to the manner of the accident and held that (p. 233) “a careful study of the evidence has convinced us that no other verdict than one of not guilty could reasonably have been sustained.” In its opinion the Appellate Court states (p. 235): “So far as the evidence shows, the jolt or lurch was one of those inevitable incidents which are inseparable from the practical operation of street cars in public streets.” The Mumaugh case is clearly not an authority in support of defendants’ contention that the instant instruction should have been given.

This case seems to have been well tried. ' No good reason has been advanced why the judgment of the circuit court of Cook county should be disturbed and it is accordingly affirmed.

Judgment affirmed.

Friend, P. J., and John J. Sullivan, J., concur.


text:
    Emilie Barrenscheen, Appellant, v. Katchen Grosch et al., Appellees.
    Gen. No. 41,192.

      Opinion filed June 26, 1940.
    Rehearing denied July 9, 1940.
    Edwin L. Waugh, of Chicago, for appellant; Walter B. Smith, of Chicago, of counsel.
    J. Colburn Hamilton, for appellees; Daniel F. Kemp, of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Plaintiff filed a bill to construe the will of Henry Barrenscheen. The case was heard by the court upon the complaint, with the will of Henry Barrenscheen attached, and the joint and several answer of defendants. The complaint prayed that the court find: “A. . . . that plaintiff was by the will aforesaid vested with a fee simple title to all the real estate aforesaid free and clear of all charges of any and every kind and nature whatsoever,” and that the court find “B. . . . that plaintiff, under the last will and testament of the said Henry Barrenscheen aforesaid, became seized and possessed of all the real estate of which the said Henry Barrenscheen died seized and possessed, free and clear of all charges of any kind and nature whatsoever.” The answer of defendants prayed “that said will be construed by the court, but deny that plaintiff is entitled to the relief prayed for in said complaint, and ask that a decree be entered finding that the payment of $5,000 out of the estate of said Henry Barrenscheen by Emilie Barrenscheen, after her death, to Jacob Brand or his heirs is a charge or equitable lien upon the real estate described in said complaint.” The decree recites the second paragraph of the will (the one which the trial court was called upon to interpret), which provides as follows: “Second: After the payment of such funeral expenses and debts, I give, devise and bequeath unto my wife, Emilie Barrenscheen all my personal and real property- to have and to hold the same forever. Should, however, no child be born to my wife during our matrimonial life, or should a child be born and should the same die before the death of my wife, then my wife shall be held to pay out of my estate after her death, the sum of Five Thousand Dollars ($5,000.00) to Jacob Brand of Biebelnheim, Hene-Darmstadt G-ermany, brother of my first wife or his heirs.” The decree found that no child was ever born to Emilie Barrenseheen during her matrimonial life with Henry Barrenseheen; that said Barrenseheen died seized of certain real estate (the legal description follows); that Jacob Brand departed this life “leaving him surviving Katchen G-rosch, Philipp Brand, Elisabeth Malsy, Anna Brand, and Marie Grurisch, as his only heirs at law.” The decree orders, adjudges and decrees: “1. That the true construction, meaning, interpretation and effect of the second paragraph of said will according to the intent of the testator as gathered from the entire will is that Emilie Barrenseheen, plaintiff herein, takes a fee simple title to said real estate, subject to a charge of $5,000, to be paid to Jacob Brand of Biebelnheim Hene-Darmstadt, G-ermany, or his heirs after the death of the said Emilie Barrenseheen. 2. That Emilie Barrenscheen is the owner in fee simple of the following described real estate: [Here follows a legal description of the real estate.] subject to a charge or lien in the sum of $5,000, to be paid to the heirs of Jacob Brand of Biebelnheim Hene-Darmstadt, G-ermany upon the death of said Emilie Barrenseheen. ’ ’ Plaintiff appeals from the decree.

Plaintiff contends: “I. By the will . . . the plaintiff was bequeathed all his personal property and was devised an estate in fee simple in and to all the real estate of which he died seized and possessed. Therefore there was no estate remaining from which any further gift might be paid. II. The $5000 referred to in the will was not a lien or charge upon the real estate. III. The condition stated in the second paragraph of said will was impossible of fulfillment and therefore was void. IV. In the construction of a will, any ambiguity should be resolved in favor of the widow in preference to the children of a deceased brother of a former wife of the testator. ’ ’

Defendants contend: “I. A specific bequest of a sum of money directed to be paid out of the testator’s estate by the executrix, who is also the sole devisee, is not void as an attempted limitation on the fee simple title devised to her. A. A charge on real estate is not an interest in land and does not limit a fee subsequently devised. B. An estate in fee simple absolute may be cut down by subsequent language in the will which is clear and unmistakable. II. The bequest directed to be paid by the executrix and sole devisee out of the testator’s estate is a charge upon the real estate devised under the will. A. The intention to charge the payment of a bequest or legacy upon the real estate may be implied from the whole will taken together. B. 'Where real and personal - estate are blended together in one mass in a general disposition, the real estate is charged with payment of'the legacies. C. Where a devisee is expressly directed to pay certain legacies, although not expressly charged by the will, this will charge the legacies on the real estate devised. ’ ’

Our Supreme Court has always followed the old rule that in the construction of wills the intention of the testator is the polar star to guide the court in its interpretation. In Meins v. Meins, 288 Ill. 463, the court states (pp. 465, 466): “The principal rules of construction are: The intention of the testator, if not inconsistent with the established rules of law or public policy, must govern. This intention must be gathered from the whole will and all its parts taken together. Every clause and provision, if possible, should have effect given to it according to the intention of the maker. (Fifer v. Allen, 228 Ill. 507; Lander v. Lander, 217 id. 289; Hamlin v. United States Express Co., 107 id. 443; Henderson v. Blackburn, 104 id. 227; Bland v. Bland, 103 id. 11; City of Peoria v. Darst, 101 id. 609; Giles v. Anslow, supra [128 Ill. 187]; Boyd v. Strahan, 36 Ill. 355.) A later clause of a will, when repugnant to a former provision, is to be considered as intending to modify or abrogate the former. Harris v. Ferguy, 207 Ill. 534; Hamlin v. United States Express Co., supra.” In Keiser v. Jensen, 373 Ill. 184, 187, the court states: “Where, in a will, language is used which, standing alone, is sufficient to create an estate of inheritance in the first taker, any subsequent language, in order to cut down such estate, must be clear and unmistakable. (Sweet v. Arnold, 322 Ill. 597; Hempstead v. Hempstead, 285 id. 448.) If it appears from the entire language of the instrument that it was the intention to impose a limitation upon the estate, that intention will be given effect. Gahan v. Golden, 330 Ill. 624; Tripp v. Krauth, 340 id. 11; Knight v. Gregory, 333 id. 643. The test whether words used in a devise are dispositive or merely precatory is: Does the testator mean by such words to control the disposition of the property? If so, it is his will no matter how mildly the wish is expressed; but if he simply indicates by such words what he regards as a wise disposition, leaving it to the discretion of the person taking the legal title to the property to dispose thereof, then it is not his will. (Hempstead v. Hempstead, supra.)

In our opinion the intention of Henry Barrenseheen is clearly and unmistakably expressed in his will. The testator states: “Should, however, no child be born to my wife during our matrimonial life, . . . then my wife shall be held to pay out of my estate after her death, the sum of Five Thousand Dollars ($5,000.00) to Jacob Brand ... or his heirs.” (Italics ours.) These are not precatory words but positive directions, the testator clearly intending by the language used to impose a charge upon the real estate to insure the payment of the $5,000 bequest. “A‘ charge, ’ as used in the law of wills, as an obligation imposed on a person or estate, when imposed for legacies on property devised or bequeathed, creates a lien to be satisfied out of the specific property charged. . . . This lien is equitable in nature. . . .” (69 C. J., pp. 1159,1160.) In Meins v. Meins, supra, the testator left an estate of 240 acres of land, of the value of approximately $30,000, and $800 in cash. The clauses of the will that the court was called upon to interpret were: “Second — After the payment of such funeral expenses and debts, I give, devise and bequeath to my wife, Lizzie Meins, all of my property, both real and personal, which I may die possessed of. Third — It is iny wish, and I hereby direct, that three years after the death of my wife, Lizzie Meins, $10,000 of my said estate shall be given to my daughter, Annie Oltmans. Fourth — After my daughter, Annie Oltmans, has received her share of $10,000, the remainder of my estate I give, devise and bequeath to my son, Albert Meins.” The chancellor construed the will as vesting an estate in fee in the widow by the second clause of the will, and decreed accordingly. We have heretofore quoted at length from the opinion in the Meins case. The Supreme Court there held that under the will the widow took a life estate; the son, a remainder, charged with the payment of $10,000 to the daughter, Annie Oltmans. In Parsons v. Millar, 189 Ill. 107, the will contained the following clauses (pp. 108, 109): "" Ninth — Having given to my daughter Hannah D. Vause the sum of $1200,1 now give to her the sum of $1000 in money, to be paid to her by my son William E. Millar within two years after my death, in consideration of bequest made by me to him, as hereinafter named. Tenth — Whereas, my daughter Mary Frances VanMeter has received from me, during my lifetime, $1216.50,1 now bequeath to her the sum of $1000, to be paid to her by my son William E. Millar in consideration of bequest made by me to him, as hereinafter provided. Eleventh — I give and bequeath to my son William E. Millar the following described land, to-wit: (here describing land . . .) provided that my son William E. Millar pay, as before specified, to my daughter Hannah Vause, within two years after my death, the sum of $1000, and to my daughter Mary Frances VanMeter, within three years after my death, the sum of $1000, which amounts shall be the sums bequeathed to them in clauses 9 and 10 of this will.” The Supreme Court held (p. 113): “It is evident from the language of paragraph 11 of the will that the title to the lands therein devised passed absolutely to William E. Millar, charged with the payment of the bequests of $1000 each, contained in paragraphs 9 and 10, to Hannah D. Vause and Mary F. VanMeter. Daly v. Wilkie, 111 Ill. 382.” In the Daly case the will contained the following devise (pp. 384, 385): “I will and bequeath unto my son, George Daly, all the following described real estate, to-wit: Lot Number five (5),” etc., “to have and to hold the same to him and to his heirs forever, subject, however, to the terms and conditions herein limited, that is to say, that he shall, within the term of seven years after my death, pay to my daughter, Bridget Daly, the sum of five hundred -, for and on account of the above devise and bequest to him. ’ ’ The Supreme Court held that title to the lot passed absolutely to the son, but that the subsequent clause created a charge upon the same for the payment of $500 to the daughter, there being no dispute but that $500 was the sum intended. (See, also, Haight v. Royce, 274 Ill. 162; Langworthy v. Golden, 28 Ill. App. 119; O’Brien v. Dougherty, 1 App. D. C. 148.) Some of the foregoing cases proceed upon the theory that when a fee simple estate is devised a subsequent bequest or legacy charged upon the real estate does not cut down or limit the fee devised. But the recent case of Reiser v. Jensen', supra, holds that “where, in a will, language is used which, standing alone, is sufficient to create an estate of inheritance in the first taker, any subsequent language, in order to cut down such estate, must be clear and unmistakable. ... If it appears from the entire language of the instrument that it was the intention to impose a limitation upon the estate, that intention will be given effect.” (Italics ours.) The court also overruled a contrary expression in Sweet v. Arnold, 322 Ill. 597, cited by plaintiff. MacGalliard v. Duis, 370 Ill. 230, also cited by plaintiff, does not change or modify the holding in the Keiser case, but reaffirms it. In the MacGalliard case the testator not only made an express gift in fee simple to his wife, but he gave her absolute and general power of disposition of all the property he owned at his death. To quote from the opinion in that case (page 234): “He then expressed a desire that there be paid out of the proceeds of the sale of his property, if any proceeds remained at his wife’s death, certain sums, and that he desired the balance paid to his brothers and sisters.” The court held (p. 235) that this language “was the mere expression of a desire or wish, and did not constitute a devise because it concerned proceeds of sales, alone.”

Many cases cited by plaintiff involve the question of an attempt to limit a fee simple title devised to a devisee, but they do not involve bequests or legacies that are made a charge upon real estate, and, therefore, we do not consider them applicable to the instant case.

In the instant case the intention of the testator is not inconsistent with established rules of law or public policy, and it must govern.

But plaintiff contends that “the condition stated in the second paragraph of said will was impossible of fulfillment and therefore was void. ’ ’ Plaintiff argues that when the testator used the following language, “then my wife shall be held to pay out of my estate, after her death, the sum of $5,000,” he stated an impossible and absurd condition because his wife could do nothing after her death; that impossible conditions have always been held to be void. It is hardly necessary to cite cases in support of the established principle of law that in construing wills the cardinal rule is, and the constant endeavor of the courts must be, to give effect to the true intention and meaning of the testator as found from the language of the will. As we have heretofore held, the intention of the testator in the instant case is clear, and we refuse to hold that the charge against the real estate cannot be enforced because “the wife could do nothing after her death.” The trouble with plaintiff’s argument is that it is based upon an absurd interpretation of the language in question. It is idle to argue that the testator intended, by that language, that the wife should do something after her death. It is our duty to interpret the will so that the plain intent of the testator may be enforced, if possible. The bequest in question became a charge upon the testator’s real estate when he died. That charge was in the nature of an equitable lien that could be enforced after plaintiff’s death, if she failed to pay the $5,000 by a bequest in her will or otherwise.

Counsel for plaintiff has filed an able and ingenious brief in support of this appeal, but we have reached the conclusion that the trial court correctly interpreted the will, and the decree of the circuit court of Cook county is affirmed.

Decree affirmed.

Friend, P. J., and John J. Sullivan, J., concur.


author: Mr. Justice John J. Sullivan

text:
    Charles H. Albers, Appellee, v. Arthur S. Moe et al., Appellants.
    Gen. No. 40,564.

      Opinion filed June 28, 1940.
    McNab, Holmes & Long, of Chicago, for certain appellants; Joseph T. Scott, of Chicago, of counsel.
    Philip J. McKenna and Millard B. Elmes, both of Chicago, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This proceeding was brought by Charles H. Albers, receiver of the Northbrook State Bank, to foreclose a trust deed securing a $4,000 note executed by Arthur S. Moe and to charge the defendants with any deficiency due plaintiff after the sale of the foreclosed property. Plaintiff’s claim for the deficiency judgment against defendants William E. Webster and Sarah Maude Webster, his wife (hereinafter for convenience sometimes referred to as the defendants) is based entirely upon two extension agreements executed by them, one in 1927 and the other in 1930. The cause was referred to a master in chancery and in accordance with his recommendation a decree of foreclosure was entered on July 6,1938, which found inter alia that the Websters were personally liable for the amount found due plaintiff and ordered that if a deficiency existed after the sale of the premises and the application of the proceeds thereof to plaintiff’s indebtedness “the court shall have full power and authority to enter a personal judgment against the defendants William E. Webster and Sarah Maude Webster, his wife, who are personally liable therefor.” The property was sold at a master’s sale and a deficiency of $3,436.36 was reported to the court. By a decree entered August 19, 1928, the master’s report of sale and distribution was approved and a judgment was entered in favor of plaintiff and against the Websters for the amount of such deficiency. William E. Webster and Sarah Maude Webster appeal from that portion of the decree of foreclosure which found them personally liable and authorized a judgment against them for any deficiency after sale and from that portion of the decree of August 19, 1938, which directed that judgment be entered against them for the amount of the deficiency.

On July 22, 1924, Arthur S. Moe executed and delivered his principal promissory note for $4,000, due three years after date and bearing interest at the rate of 6 per cent per annum, together with his trust deed conveying certain real estate in Cook county, Illinois, as security for the payment of said principal note and the interest coupons attached thereto. After the execution and delivery of said note and trust deed Moe conveyed the premises to William E. Webster. In the warranty deed from Moe to Webster there was no assumption by the latter of the pre-existing mortgage indebtedness. After the note matured July 22, 1927, the Northbrook State Bank, the owner and holder thereof, and William E. Webster and Sarah Maude Webster entered into a written agreement on July 25, 1927, which extended the time of payment of said note for a period of three years, with interest at the rate of 6 per cent per annum, evidenced by six interest notes and coupons executed by the Websters. When the note matured under the terms of the extension agreement of July 25, 1927, a second extension agreement was entered into by the bank and the Websters on July 22, 1930, whereby the maturity of said note was extended for a further two-year period with interest at the rate of 6 per cent per annum, evidenced by four interest notes or coupons executed by the Websters. The Websters paid all of the interest notes signed by them and also paid interest until January 22, 1935, which was two and a half years after the expiration of the last extension agreement. Moe was not a party to either of the extension agreements nor did he have any knowledge of same.

Plaintiff’s complaint to foreclose, filed December 3, 1937, named Arthur S. Moe and the Websters parties defendant and included a prayer that in the event the proceeds of the foreclosure sale “were not sufficient to pay the full amount found to be due the plaintiff . . . a deficiency decree be entered in favor of the plaintiff and against such of the defendants as may be found to be personally liable to pay such deficiency.” No service was had on Moe and the suit was dismissed as to him. Plaintiff then amended his complaint by pleading the two extension agreements in haec verba. These agreements are identical in form and language except as to their dates and the periods covered.

Inasmuch as William E. Webster did not assume and agree to pay the mortgage indebtedness in his deed from the mortgagor, Arthur S. Moe, the only question presented for our determination is whether or not the Websters by executing the two extension agreements obligated themselves to pay the principal due on the Moe note.

The agreement of July 25,1927, for the extension of the loan is as follows:

‘ ‘ Memorandum of Agreement, Made and entered into this 25th day of July 1927 between Northbrook State Bank of the County of Cook and State of Illinois party of the first part, and William E. Webster and Sarah Maude Webster of the County of Cook and State of Illinois party of the second part;

“Witnesseth, Whereas said party of the first part is the legal owner and holder of the certain promissory note . . . made by Arthur S. Moe, a bachelor, dated July 22nd, 1924, in the sum of Four Thousand ($4,000.00) Dollars, payable on or before 3 years after said date, to the order of himself and by him endorsed and delivered, which notes are secured by a deed of trust from Arthur S. Moe, a bachelor to W. P. Melzer Trustee, conveying the premises situated in the County of Cook and State of Illinois, described as follows, to-wit: (Legal Description of Premises Conveyed.) which deed is recorded in the Registrar’s Office of Cook County, in the State of Illinois, in Book 275 of Records, on page 262 as Document number 236006 and ...

“And Whereas, Said second party desires to have the payment of Four Thousand ($4,000.00) Dollars of said note . . . of Four Thousand ($4,000.00) Dollars extended for three years from July 22nd, 1927, in consideration of the agreement hereinafter made on his part;

“Now, Therefore, Said party of the first part agrees to extend the payment of Four Thousand ($4,000.00) Dollars of said note of Four Thousand ($4,000.00) Dollars for three years from July 22nd, 1927, that is to say until July 22nd, 1930, so long as the said party of the second part shall promptly pay interest thereon from July 22nd, 1927, at the rate of six per cent, per annum, payable semi-annually at the place in said note . . . mentioned, and shall further keep and perform all and singular the covenants and agreements in said note . . . and trust deed contained.

“And the said party of the second part hereby agrees to and accepts said extension upon the conditions aforesaid, and has executed his six interest notes or coupons of One Hundred Twenty Dollars each, evidencing and securing the interest on said note . . . for the time of such extension,, and agrees that in case of default in the payment of any one of said interest payments, and in case of a failure to keep and perform any one of the covenants and agreements in said notes and trust deed contained, this agreement shall at once become null and void at the option of said party of the first part, and said note — of Four Thousand ($4,000.00) Dollars shall at once become due and payable, and may be collected without notice, together with the accrued interest thereon, at the rate of six per cent, per annum, anything hereinbefore contained to the contrary notwithstanding.

“It Is Further Agreed, That this agreement shall be binding upon and inure to the heirs, executors, administrators and assigns of both parties hereto.

“Witness The hands and seals of the parties hereto the day and year first above written.

Northbrook State Bank

Herman Muir, Cashier (Seal)

William E. Webster (Seal)

Sarah Maude Webster (Seal) ’’(Italics ours.)

Defendants claim that the only obligation they assumed under the extension agreements was to pay the interest for the extended periods as evidenced by the interest coupons which they executed, while plaintiff insists that under said agreements they directly assumed the payment of the principal of the Moe note, as well as the interest thereon.

Under what circumstances was the first extension granted? As heretofore stated, Moe executed the principal note for $4,000 and the trust deed securing same. He then conveyed the premises to Webster by warranty deed, but in said deed there was no assumption of the mortgage by Webster. Subsequent to the purchase of the property by them, the Websters paid the taxes and all the interest coupons on the Moe note. When the Moe note matured on July 22,1927, it was not paid. In order to avoid foreclosure the Websters desired to have the note extended. Their application to the bank for a three-year extension was granted upon their undertaking not only to pay interest on the note during the extended period but to “further keep and perform all and singular the covenants and agreements in said note and trust deed contained.” The most important covenant of the note and trust deed was, of course, that relating to the payment of the principal amount of the note.

What then is the proper interpretation to be given the extension agreements? The primary rule in the construction of contracts is that the court must, if possible, ascertain and give effect to the mutual intention of the parties, so far as that may be done without contravention of legal principles. Greater regard is to be had to the clear intent of the parties than to any particular words which they may have used in the expression of their intent. (13 C. J. pp. 521 and 523, sec. 482.) The contract for the extension of July 25, 1927, after reciting that “said second party [Websters] desires to have the payment” of the $4,000 note “extended for three years from July 22, 1927, in consideration of the agreement hereinafter made on his part,” provided that the bank agreed to the three-year extension “so long as” the Websters “shall promptly pay interest . . . and shall further keep and perform all and singular the covenants and agreements in said note and trust deed contained” and provided further that said second party “agrees to and accepts said extension upon the conditions aforesaid.” There is nothing ambiguous about this language and we think it clearly indicates that it was the intention of the parties that the Websters agreed to and did assume the obligation of paying the $4,000 Moe note.

Much time is devoted in defendants’ brief and argument to distinguishing between conditions subsequent and promises and the legal effect of each. They insist that the language “the said party of the second part . . . shall further keep and perform all and singular the covenants and agreements in said note and trust deed contained,” as employed in the extension agreements, properly construed, constitutes only conditions subsequent limiting the promise made by the bank and that the only promise made by them was to pay the interest on the note for the extended periods. The difficulty with defendants’ position in this regard, in our opinion, is that the purported conditions subsequent were not within the contemplation of the parties when the extension agreements were executed. In consideration of the granting of the extensions by the bank the agreements did impose certain conditions upon the Websters and they expressly agreed to and accepted the extensions upon the conditions heretofore set forth. The conditions referred to and the word “conditions” as used in the extension agreements were not intended to mean conditions subsequent but rather the terms, covenants, stipulations or obligations agreed to by the parties.

We are not unmindful of the rule that to render a grantee personally liable for a pre-existent mortgage indebtedness there must be language in the deed or contract which clearly imports that the grantee assumes the obligation of paying the debt (Siegel v. Borland, 191 Ill. 107; Drury v. Holden, 121 Ill. 130), or of the rule that the assumption of the mortgage by the purchaser will not be presumed (Lange v. Bartlett, 207 Ill. App. 422). However, even though the provisions of the extension agreements before us could have been more aptly phrased, they leave no room for doubt that the defendants directly assumed and agreed to pay the $4,000 Moe note and we are therefore impelled to hold that the Websters are personally liable for the deficiency.

We have carefully examined all the authorities cited by defendants but feel that it would serve no useful purpose to discuss them in view of the interpretation given by us to the extension agreements.

For the reasons stated herein those portions of the decree of foreclosure of July 6,1938, and of the decree of August 19, 1938, from which this appeal is prosecuted, are affirmed.

Portions of decree affirmed.

Friend, P. J., and Scanlan, J., concur.