author: Mr. Justice Shurtleff

text:
    United Cigar Stores Company of America, Appellant, v. J. F. Friend, Appellee.
    Gen. No. 8,340.
    Opinion filed April 22, 1930.
    Gunn, Penwell & Lindley and George R. Faust, for appellant.
    Acton, Acton & Snyder, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

Appellant brought suit against appellee upon a lease for rent and claimed to recover the sum of $548. Appellee denied the claim and pleaded a set-off in the sum of $350. The lease covered a store building in the City of Danville and contained a great many provisions. The term extended from April 1, 1926, to April 29, 1934. The lease was first executed between appellant and one Eansom Lewis. By the written agreement of the parties the interest of Eansom Lewis in the lease was assigned to Claude A. Johnson and in the same manner was assigned by Claude A. Johnson, on August 1, 1927, to appellee, under seal, and appellee assumed and agreed to perform all of the covenants and provisions of the lease. Appellee paid the rent for a period, but made default in the payment of the rent from January 1st to May 1st, 1928.

It was provided in said lease as to fire:

‘ ‘ The tenant agrees that in case the premises hereby leased shall be damaged by fire at any time during said term, the tenant shall give immediate notice thereof to the landlord, who shall thereupon cause the same to be repaired, and a proportionate reduction of rent shall be allowed the tenant for the time occupied in repairing such part or parts of said premises as may be rendered untenantable and incapable of use and occupancy.”

The lease further provided: “Any entry or re-entry by the landlord, whether had or taken under what are known generally as summary proceedings, or otherwise, shall not be deemed to absolve or discharge tenant from liability hereunder.

“In consideration of the foregoing covenants and agreements, and the sum of One Dollar by the landlord in hand paid, the receipt whereof is hereby acknowledged, the tenant does hereby agree to and does deposit with and pay over to the landlord the sum of Three Hundred and Fifty ($350.00) Dollars, to be held by the landlord for the punctual payment of the rent and performance of the covenants and agreements in the within lease set forth to be paid and performed by the tenant. In the event that the tenant shall faithfully and fully pay the said rent and keep and perform each and every of the covenants, agreements and provisions in the said lease to be kept and performed by the tenant up to the end of and during the full term and period of this lease, then the landlord shall nse and apply the said sum so deposited, for the rent hereinbefore provided to be paid by the said tenant for the last two months’ rent so far as the same will apply. In the meantime the tenant shall be credited with and be entitled to interest on the said sum so deposited at and after the rate of two per cent per annum payable at the end of each calendar year.

“In the event, however, that the tenant shall be dispossessed from, or shall vacate or abandon the premises, or shall fail, neglect or omit at any time during the said term to perform and fulfill each and every of the covenants, agreements and conditions in the within lease set forth to be kept, performed and fulfilled by the tenant, including among others the agreements hereinbefore provided to be kept and performed by the tenant after dispossession, eviction, and/or abandonment, or other termination, that then the landlord may, at the landlord’s option at any time or times use and apply the said sum so far as it will apply towards the payment of the rents reserved and any other sums by the tenant agreed to be paid and to the performance of the covenants and agreements therein contained to be kept, performed or fulfilled by the tenant, including any loss and/or deficiency which the tenant has agreed to pay up to the end of the term for which said lease was originally entered into; and it is agreed that no action nor proceedings of any kind may nor shall be instituted, begun or carried on by the tenant in relation to said moneys so deposited or any part thereof until six months after the expiration of the full term of this lease as originally made. The tenant shall remain liable for any loss, deficiency or amount that said sum shall be insufficient to pay hereunder and if there be any surplus after making and applying the payments herein provided for, such surplus, if any, shall six months after the expiration by limitation of the original full term hereof and any renewals thereof herein provided for, be turned over by the landlord to the tenant. In the event that it shall become necessary upon such default to execute, acknowledge or deliver any instrument in writing, under seal or otherwise for the purpose of carrying out any of the provisions of this lease and this instrument by the tenant, the landlord is hereby made and constituted the attorney in fact irrevocably and coupled with an interest of the tenant, with full power and authority to sign, seal, execute and acknowledge and deliver any and every such instrument; and nothing herein contained shall be deemed to postpone nor preclude nor modify any and all rights and remedies which the landlord has or may have under said lease. The landlord may if it so elects, exhaust all or any of its rights and remedies against the tenant, before resorting to said deposit, but nothing herein contained shall require or be deemed to require the landlord so to do.”

There were other provisions of the lease to which it is not necessary to refer. Appellant’s declaration is based upon a special count covering the lease and 'the common counts.

Appellee filed four pleas. The first plea was the general issue. The second plea was a plea of set-off for the sum of $350, which appellee claimed. The third plea charged a destruction of the premises by fire on January 18, 1928, and the fourth plea averred the surrender of the premises and the acceptance of the same by appellant.

There was a trial by jury and a verdict and judgment for appellee in the amount of the set-off and interest upon the same, and appellant has brought the record to this court, by appeal, for review.

There is substantially no dispute as to the facts in this case, which are as follows: On July 2, 1927, Eansom Lewis assigned this lease to C. A. Johnson. On August 1, 1927, the said Johnson requested permission from the appellant to assign said lease to J. F. Friend, appellee. Appellee assumed the lease on the following terms: “I assume the lease above referred to and agree to perform and be bound by all the terms, covenants and conditions thereof, with the same force and effect as though originally the lessee thereunder. Date August 1, 1927, J. F. Friend (L. S.),” and the appellant consented to said assignment upon the conditions of said assumption.

Appellee thereupon entered into a heating contract with appellant, whereby he agreed to pay appellant the sum of $10 per month for each month between October 1st and April 30th in each year for heat to be furnished by appellant for said premises.

Thereafter, an August 24, 1927, an amendment to said lease was entered into between the appellant and appellee under the terms of which the rental on said premises was reduced from the amount provided in the original lease, namely, $1,800 per annum for the period beginning April 1, 1926, and expiring March 31, 1931, and the sum of $2,100 per annum for the balance of the term, to the sum of $1,500 per annum from August 1,1927, to April 29,1934. In said agreement, the said 'appellee further agreed to pay the sum of $2 per month for water.

Appellee took possession of said premises on August 1, 1927, and paid the rental provided in the lease and amendments thereto until December 31,1927, but did not pay rental for the months of January, February, March and April, 1928.

Appellee operated a barber shop in said premises and had working for him Edward Sheets. Appellee abandoned the premises and moved his property out in November, 1927. Appellee claimed that he assigned his lease to Edward Sheets under date of November 3, 1927. Under the terms of such assignment, however, the said appellee was not released or discharged from any liability whatsoever under the said lease. Sheets never paid any rent for the premises,. never paid any water rent or any heat rent. Appellee paid some rent on the premises after he turned it over to Sheets. He did it because the plaintiff sued him and made him pay it.

After appellee assigned the lease to Sheets, the property in the barber shop still belonged to appellee and it was moved out either by appellee or by Sheets in November, 1927. After moving out all the fixtures, either appellee or Sheets took the key to the premises in the local store of the appellant company, left the key on the counter and said, “Here is the key.” The clerk in the store testified that he said, “I won’t accept it.” Sheets testified that he turned the key to the room over to the manager of the cigar store and said, “Here is the key. The man has moved out. I can’t run it that way,” and that the manager of the store said nothing, but took the key.

Thereafter, some time in January, 1928, there was a fire in another part of the same building in the basement under a restaurant, operated by Peponis Brothers. The premises involved in this litigation were vacant at that time and were not damaged hy the fire. The local manager of the cigar store testified that after the fire, he put some merchandise that had been damaged by the fire in there and left it there for not over three or four days, after which it was packed up and shipped to Chicago. The owner of the restaurant placed some chairs in this vacant room for a short time after the fire. Appellee testified that the goods of the Cigar Store were in this vacant room for two or three months.

After the premises had been abandoned by Friend, it appears that in one of the windows of the premises there was placed a sign reading: “For Rent. Inquire United Cigar Stores next door.” This testimony was admitted over objection of the plaintiff. The lease specifically provided that lessee would allow notice “For Salé” or “To Let” to be put up and remain on the premises.

The premises were vacant and unoccupied, except as above stated, until May 1, 1928. At that time, the premises were leased to the Vermilion County Abstract Company for a term beginning May 1, 1928, and ending April 30, 1934, at an annual rental of $1,200. Under a rider attached to the lease no rental was due or payable thereunder for the period beginning May 1, 1928, and ending October 25, 1928, which period of time the lessee was to have rent free for the purpose of making alterations.

By the terms of the assignment from appellee to Sheets, appellee had assigned to Sheets his interest in the deposit made under the lease for security. On discovering this, Sheets, during the course of the trial, made an assignment back to Friend for that $350 deposit. Plaintiff offered to show that Sheets received no consideration whatsoever for signing said assignment, but the court refused such evidence.

The main question in the case is, whether the lease means what it reads'and states, or whether it means nothing.

It has been held in numerous cases that a provision in a lease giving the lessor the right to re-enter, after lessee’s default, without forfeiting the lease, is valid. (Central Investment Co. v. Melick, 267 Ill. 564; Grommes v. St. Paul Trust Co., 147 Ill. 634; Hicks v. Simons, 207 Ill. App. 83.) It has also been held that the delivery of the keys of abandoned premises to the landlord and their retention by him is not an acceptance of an attempted surrender. (West Side Auction House Co. v. Connecticut Mut. Life Ins. Co., 186 Ill. 156; Hirsch v. Home Appliances, Inc., 242 Ill. App. 418 (Certiorari denied 246 Ill. App. xxvii); Scanlan v. Hoerth, 151 Ill. App. 582; Bradley v. Walker, 93 Ill. App. 609; Robinson v. Henaghan, 92 Ill. App. 620; Gaines v. McAdam, 79 Ill. App. 201.) Neither does the fact that the landlord puts up signs “To Rent” on the premises, after an abondonment, show an acceptance of such attempted surrender. (West Side Auction House Co. v. Connecticut Mut. Life Ins. Co., 186 Ill. 156; Hirsch v. Home Appliances, Inc., supra; Bradley v. Walker, 93 Ill. App. 609.)

In Grommes v. St. Paul Trust Co., supra, the court held:

“There is nothing illegal or improper in an agreement that the obligations of the tenant to pay all 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 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.”

It has alway been the law that when a tenant abandons leased premises, without fault of the landlord, the landlord may re-enter and re-rent the premises, crediting the former tenant with the proceeds, and the landlord so taking possession does not relieve the tenant from liability for the stipulated rent. (West Side Auction Co. v. Connecticut Mut. Life Ins. Co., supra; Marshall v. Grosse Clothing Co., 184 Ill. 421; Humiston, Keeling & Co. v. Wheeler, 175 Ill. 514; Grommes v. St. Paul Trust Co., supra; Hirsch v. Home Appliances, Inc., supra; Harmon v. Callahan, 214 Ill. App. 104; Hicks v. Simons, supra; Scanlan v. Hoerth, supra; Spikings v. Fox, 145 Ill. App. 337; Rau v. Baker, 118 Ill. App. 150; Bradley v. Walker, supra; Gaines v. McAdam, 79 Ill. App. 201.)

In Humiston, Keeling & Co. v. Wheeler, supra, the court held:

“In order to constitute an eviction, the tenant must abandon the premises on account of the act of the landlord, and if defendant had already abandoned them, the entry by plaintiff would not constitute an eviction. In cases showing abandonment without fault of the landlord, or as a result of his acts, he may reenter and again rent premises and credit the lessee with the proceeds, and his so taking possession does not relieve from the payment of rent.”

■ It has also been held that a landlord has the right to hold a deposit until after the end of the original term (and even until six months after the end of the original term in this case) where an agreement to that effect is in the lease, and the landlord may apply the deposit to the liquidation of any deficiency of rent which the landlord may suffer during the entire pe-riod until the end of the original term, and the tenant has no claim to the deposit and no right to recover any part of the deposit until after the expiration of the original term (and even not until six months after the end of the original term as in this case.)

No proofs were offered tending to support any of appellee’s pleas. The clerk in the store, to whom the key was handed, had no authority to accept a surrender of the lease, and no such surrender was intended by either of the parties or contemplated by the terms of the lease. Neither was any plea of set-off possible, under the terms of the lease, and it was not shown by any competent testimony that fire in January, 1928, did any damage to the particular premises in question.

The instructions in this case were contradictory and numerous instructions were given for appellee for which there was no foundation in the proofs or law. Appellant’s first given instruction stated the law of the case: “You are instructed that under the terms of the lease which the defendant assumed the plaintiff herein had a right to enter or re-enter upon the premises described in said lease and repossess said premises without in any manner discharging the liability of the defendant for rent and specified in said lease.”

For the numerous errors pointed out, the judgment of the circuit court of Vermilion county is reversed. and the cause remanded for further proceedings.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    The National City Bank of Ottawa, Illinois, Appellee, v. Fred P. Cowdin and Margaret B. Cowdin, Appellants.
    Gen. No. 8,343.

      Opinion filed April 22, 1930.
    Doyle, Sampson & Giffin, for appellants.
    Masters & Masters and Walter T. Day, for appellee.
   Mr. Justice Shurtleff

delivered the! opinion of the court.

We subjoin a portion of the chancellor’s statement of the case in the court below:

On August 8, 1923, Fred P. Cowdin acquired title to lot 49 in Oak Knolls Second Platt in the City of Springfield. At that time and other times subsequent thereto, he told his wife he intended to build a residence on the lot and when completed, he would convey the property to her.

Cowdin is a practicing physician and surgeon. His practice nets about $10,000 a year. In November, 1925, the erection of the dwelling house began and it was completed in June, 1926, at a cost of approximately $30,000. During the progress of the construction, he and his wife executed and delivered to the defendant Fayart, a mortgage to secure an indebtedness of $15,000. On May 20, 1926, or approximately one month after the completion of the building, he conveyed it by warranty deed to his wife, without any money consideration. Shortly thereafter, he and his family occupied the premises as their home.

Several years prior to the execution of the deed, Doctor Cowdin, together with a number of other men, became associated together in a corporation known as the American Magnestone Corporation, for the purpose of manufacturing a building material known as “stucco.” Doctor Cowdin was one of the directors. For a time the principal office of the corporation was at Ottawa, Illinois. The record discloses that the corporation proved itself to be an unsuccessful venture for its stockholders. It became largely indebted to banks in Springfield and to the appellee, The National Dity Bank of Ottawa. Such was the financial condition and stress of the corporation, that in order to maintain it as a going concern, some of the directors, including Doctor Cowdin, indorsed, guaranteed and otherwise secured the obligations of the corporation at the banks. In this course of conduct, Doctor Cowdin became involved, on account of direct and contingent liabilities, far in excess of his financial worth. His liability in direct obligations was $32,000 and his direct or contingent liability amounted to $28,000. This was the situation at the time he executed the deed to his wife. An examination of the record in this case will bring all minds to the conclusion that the corporation was insolvent in May, 1926; that its insolvency was known to all of the directors, including Doctor Cowdin; that he was alarmed about the condition of affairs and expressed himself as intending to convey his residence property and provide his wife a home, “if worse came to worse.” Doctor Cowdin’s intent to protect his wife and family against the hazards of an unsuccessful business in which he was engaged is thoroughly established by the proof in the case.

As early as 1924 the American Magnestone Corporation was indebted to The National City Bank of Ottawa, but it was not until March 2, 1927, almost a year after the execution of the deed, that Doctor Cowdin became personally obligated to the bank on account of the indebtedness of the American Magnestone Corporation. On December 19, 1927, he became personally liable to the appellee on a judgment note executed by him. Judgment by confession was entered against him on that note under warrant of attorney in the sum of $4,528.12 and costs. An execution was issued on said judgment and was returned nulla bona. The bill in this case was filed by appellee in aid of an execution and seeks to have the deed from Doctor Cowdin to his wife declared void on the ground that it was a voluntary conveyance made in secret trust for the benefit of the grantor, and to hinder, delay and defraud his creditors. The master found the facts to be very much the same as above stated but he further found and held that Doctor Cowdin did not intend by said conveyance to defraud the appellee in particular, or future creditors in general; that the evidence did not show that Cowdin expected to become indebted on new obligations in the future, and that the conveyance was not merely colorable and a secret trust for the benefit of the grantor, but was intended as an absolute conveyance. He recommended that a decree be entered dismissing the bill for want of equity. Objections to the master’s report were filed by the appellee and also by appellants Fred P. Cowdin and Margaret B. Cowdin. Such objections having been overruled, the report was duly filed and exceptions thereto were filed by the appellee and separate exceptions by the appellants, Margaret B. Cowdin and Fred P. Cowdin.

Going more particularly into the affairs of appellant Fred P. Cowdin, the master’s report shows:

That at the time • of said transfer (May 20, 1926), the said Fred P. Cowdin’s indebtedness was as follows :

To the First National Bank of Springfield, on a note in the sum of $3,100, secured collaterally by one hundred shares of stock of the American Magnestone Corporation.

To the Springfield Marine Bynk, on a note in the sum of $6,000, secured collaterally by 125 shares of stock of the American Magnestone Corporation and by other stocks and bonds which latter stocks and bonds were afterwards sold by the said bank and the proceeds applied on said $6,000 indebtedness, leaving a balance of $500 unpaid on this indebtedness at the time of the hearing.

To the Springfield Marine Bank as one of five guarantors, namely, George B. Smith, J. W. Zollars, Don Deal and A. E. Prince, of an obligation in the sum of $10,000 of the American Magnestone Corporation..

To the said Springfield Marine Bank as a joint maker of a note together with said George B. Smith, A. E. Prince, Don Deal and one C. S. Dines, in the sum of $4,500, which note was collaterally secured by 153 shares of the said American Magnestone Corporation stock.

To the said Springfield Marine Bank on a note in the sum of $3,775 signed or indorsed by the American Magnestone Corporation, C. S. Dines, George B. Smith, Don Deal and Fred P. Cowdin.

To the Springfield Marine Bank on a note in the sum of $10,000 signed by the said George B. Smith, C. S. Dines, M. P. McCarthy and. Fred P. Cowdin, which note was collateral secured by 130 shares of stock of the George B. Smith Chemical Works, Incorporated.

To the Springfield Marine Bank, in the sum of $2,-350 on a note executed by the said C. S. Dines' and indorsed by the said Dines, George B. Smith and Fred P. Cowdin.

To the Bidgely Farmer’s Bank on a note in the snm of $1,500, executed by the said M. P. McCarthy, as principal and by the said Fred P. Cowdin as surety.

To the Merchants and Manufacturers Securities Company of Chicago, on a guarantee signed by said Fred P. Cowdin, American Magnestone Corporation, George B. Smith and M. P. McCarthy, to reimburse said company for any losses on moneys advanced by it on accounts to the American Magnestone Corporation under contract between them; that at the time of the conveyance said company had advanced to the American Magnestone Corporation the sum of $17,452.43 and held for such advancement $22,000 worth of accounts of the American Magnestone Corporation, which last mentioned accounts were, however, all subsequently collected, but that later additional sums were advanced under said contract and guarantee and additional accounts of the American Magnestone Corporation turned over to the said Securities Company, and that at the time of the hearing there was due and unpaid the said Securities Company from the said American Magnestone Corporation, the payment of which was guaranteed by the above named parties, the sum of $25,432.12.

After said conveyance, on April 20, 1927, Fred P. Cowdin executed and delivered a note to the George B. Smith Chemical Works, Incorporated, for $3,500, due six months after date, being the amount assumed by him of a $15,000 obligation in favor of the said George B. Smith Chemical Works, Incorporated, existing at the time of the conveyance, to which obligation he was a joint signer, together with the said George B. Smith, Don Deal, C. S. Dines and M. P. McCarthy; that at the time of the conveyance aforesaid the said Fred P. Cowdin had the following assets:

Deposits in Springfield banks, subject to check, $634.50. One lot in West Grand Place worth approximately $1,000, two bonds in the Conover-McHenry Elevator Company, worth approximately $700; accounts receivable for professional services as a physician and surgeon $13,000, one-half of which were collectible and from which would necessarily have to be deducted the cost of collection; 275 shares of stock of the American Magnestone Corporation, having a par value of $100 per share, but for which there was no market and which afterwards in a little over a year turned out to be worthless; that the yearly average income of the said Fred P. Cowdin as physician and surgeon during the last three years has been approximately $10,500 a year; that the said Fred P. Cowdin had been one of the directors of the said American Magnestone Corporation for six or seven years prior to the fall of 1927, when he resigned as such director; that the notes given by him as aforesaid to the appellee were given it by the said Cowdin and other notes by other directors at the same time to cover in part overdrafts of the American Magnestone Corporation at said bank; that the indebtedness at the time of the conveyance aforesaid of the said American Magnestone Corporation to the appellee bank was direct $32,132.07, indirect $28,689.83; that the premises conveyed to Mrs. Cowdin, as aforesaid, cost the Cowdins upwards of $30,000 and that the cash market value thereof now is about $25,000; that said premises are now and were at the time of the conveyance encumbered by a mortgage indebtedness of $15,000; that the said Fred P. Cowdin at the time of the conveyance aforesaid did not retain sufficient property to pay his obligations and was in fact then and is now insolvent, although at the time of the conveyance he may have believed himself solvent; that at the time of the conveyance the said Fred P. Cowdin was apprehensive that the American Magnestone Corporation might fail and that he might not be able to pay the indebtedness for which he had obligated himself and apparently made the conveyance to provide his wife a home in case of a crisis.

However, the evidence is insufficient to establish that Cowdin intended by said conveyance either to defraud the appellee specifically or future creditors in general, or that he expected to become indebted on new obligations in the future. The evidence is further insufficient to warrant the conclusion that the conveyance was and is merely colorable and a secret trust for the benefit of the grantor; it rather appears that as between the grantor and grantee, the intention was that the conveyance be absolute and beyond recall.

The master recommended a decree dismissing the bill for want of equity. Under this state of facts the chancellor sustained exceptions to the master’s conclusions and entered a decree granting the prayer of appellee’s bill and appellants have brought the record, by appeal, to this court for review.

Dr. Prince, one of appellant’s associates, testified that Dr. Cowdin (appellant) stated to him that he made the conveyance to protect himself and George B. Smith; that Dr. Cowdin stated he was undertaking to protect himself by making the transfer, and upon a reading of the entire record there can be no question but that, at the time the transfer was made, appellant Cowdin was, in fact, insolvent. He knew better than anyone else that he was engaged in a new and hazard^ ous business, the risks of which he was more than willing should be cast upon his associates and creditors, and he intended that the home should be preserved for his wife and himself in any. event. Appellant knew that the Magnestone Corporation had no credit and could obtain funds to keep the corporation afloat only by pledging the individual notes of the promoters, and appellant further knew that his own notes were pledged to that end far beyond his individual means with which to pay.

It is argued that the grantee had no motive to defraud anyone in accepting the title to the premises and therefore the conveyance cannot be set aside. In cases of voluntary transfers from husband to wife the intent with which the grantee accepts the. conveyance is immaterial. (Marmon v. Harwood, 124 Ill. 104; Clark v. Harper, 215 Ill. 24, 32; Higgins v. Higgins, 219 Ill. 146, 151 and Jarvis v. Jarvis, 286 Ill. 478, 482.)

The law is that subsequent creditors may attack and impeach a prior conveyance where it is shown that the grantor had an intent to hinder, delay or defraud ex-, isting creditors, or where by a voluntary transfer to one in the family relation the grantor retains the beneficial use and enjoyment of the property conveyed and thereby deprives his creditors of a valuable right. (Moritz v. Hoffman, 35 Ill. 553; Bittinger v. Kasten, 111 Ill. 260; Jones v. King, 86 Ill. 225; Springer v. Bigford, 160 Ill. 495; Morrill v. Kilner, 113 Ill. 318; Higgins v. Higgins, supra; Gordon v. Reynolds, 114 Ill. 118, 127; Lowentrout v. Campbell, 130 Ill. 503; Jarvis v. Jarvis, supra; Hauk v. Van Ingen, 196 Ill. 20, 37; Highley v. American Exchange Nat. Bank, 185 Ill. 565; Frank v. King, 121 Ill. 250.) Where it appears that the conveyance was made in anticipation of debts or to avoid debts already incurred, the conveyance is fraudulent, as a continuing fraud as against either existing or subsequent creditors. (Patterson v. McKinney, 97 Ill. 41, 47; Tunison v. Chamblin, 88 Ill. 378; Kennard v. Curran, 239 Ill. 122; Bongard v. Block, 81 Ill. 186, 187; Continental Portland Cement Co. v. Koch, 211 Ill. App. 94; McKey v. Cochran, 262 Ill. 376; Dillman v. Nadelhoffer, 162 Ill. 625.) Subsequent creditors may impeach a voluntary settlement on the ground of prior indebtedness if they can show antecedent debts sufficient in amount to afford reasonable evidence of a fraudulent intent; they are not obliged to show absolute insolvency of the person making the settlement; it is enough to show him deeply indebted. Wait on Fraudulent Conveyances, sec. 97, page 196. A grantor engaged in or about to become involved in hazardous business ventures will not be permitted to shift the loss of his venture to his creditors by making a voluntary conveyance to a near relative, so as to enjoy all the benefits of the property,, and at the same time place his property beyond the reach of his creditors. (Morrill v. Kilner, supra; Highley v. American Exchange Nat. Bank, supra; Continental Portland Cement Co. v. Koch, supra; Eames v. Dorsett, 147 Ill. 540; Bridgford v. Riddell, 55 Ill. 261, 264; Moritz v. Hoffman, supra.)

‘ ‘ Since one to whom a debt accrues has the right to expect that his debtor has dealt fairly with him, a conveyance is void as to subsequent creditors if the grantor executes it in expectation of shortly contracting debts, and with the design of so placing the property conveyed that if misfortune befall him and he becomes unable to pay his debts, it shall be beyond the reach of his creditors.” (27 Corpus Juris, page 521, sec. 199.) “Where a conveyance is made with a view of entering a new and hazardous business, the risk of which the grantor intended should be cast upon the parties having dealings with him in the new business, it is fraudulent as to subsequent creditors.” (27 Corpus Juris, page 522, sec. 200.)

In Jones v. King, supra, the court held: “It is, however, insisted by appellants that appellees not having been creditors at the time of the conveyance, they cannot assail it. We understand the rule to be settled that where the conveyance is colorable merely, and a secret trust and confidence exists for the benefit of the grantor, the conveyance will be held void both as against precedent and subsequent creditors. This is the doctrine of Bump on Fraudulent Conveyances, page 319, where it is said: ‘If a conveyance is merely colorable and a secret trust and confidence exist for the benefit of the grantor, it is void, not only against precedent but subsequent creditors; for it is in such case a continuing fraud and may actually operate as such, as well in reference to debts contracted after as before the conveyance.’ ”

It is urged that the conveyance between appellants is a bona fide transaction because the deed was placed of record prior to the time appellant incurred the debt to appellee and that appellee had knowledge of the conveyance when he accepted the note. In Sparrow v. Wilcox, 272 Ill. 632, the court held: “Section 30 of the Conveyances Act, providing that deeds and mortgages shall take effect from and after filing the same for record, as to creditors and subsequent purchasers without notice, has no application in determining whether a judgment creditor can enforce his lien against land subsequently acquired by the judgment debtor by fraudulently inducing the owners to execute a deed to him.”

It is further insisted that appellant had shares of stock in the Magnestone Corporation at the time of said transfer, the value of which he had reason to believe was sufficient to pay his debts. We cannot agree with this contention. This stock was purely speculative and had no actual value. As the court said in Dillman v. Nadelhoffer, supra: “Retention by a debtor, at the time of making a voluntary conveyance to his wife, of property of a speculative and uncertain value, consisting of shares of capital stock and credits upon the books of a corporation, which events soon after demonstrated to be insufficient to pay his debts, will not relieve the conveyance of its fraudulent character as to creditors. . . .

“The next contention is, that even regarding the conveyance as a voluntary settlement upon the wife, Lewis E. Dillman was at the time in good circumstances and had ample property left to pay all his debts, — that in fact he had no indebtedness except the contingent liability to appellee. After a careful consideration of the evidence we are forced to the same conclusion reached by the trial and Appellate Courts. The property of Dillman consisted in shares of capital stock of uncertain value in two incorporated companies, and credits on their books. The stock soon declined in value. His shares in the only one that paid any dividends became worthless by the failure of the company, and the other stock he disposed of, at a small percentage of its face value, in payment of a debt created after the guaranty of the notes to appellee. Judged by the results he wholly failed to retain in his hands sufficient property to meet his obligations. This is conceded, but counsel insists that the question whether he retained property amply sufficient to pay all of his debts then existing must be determined from the evidence showing what the value of the property was at the time of the transfer, and not from its sufficiency as shown by the final result as ascertained several years afterward. This is, to a certain extent, true, but the whole evidence bearing upon the question must be considered.”

In Wait on Fraudulent Conveyances and Creditor’s Bills, 3rd Ed., there is a footnote as follows: “Black v. Nease, 37 Pa. St. 438. ‘The law should not be so framed or construed as to tempt men to desert their legitimate business and engage in specious and hazardous speculations concerning the dangers of which they are ignorant, by allowing them to “make a feather bed on which they may fall lightly” under the plea of affection for their wives and children. ’ ”

Finding no error in the record, the decree of the circuit court of Sangamon county is affirmed.

Affirmed.

Eldredge, J., took no part in this case.


text:
    George W. Farley, Appellee, v. James H. Lanham and Maude G. Lanham, Appellants.
    Gen. No. 8,384.
    Opinion filed April 22, 1930.
    Rehearing denied May 31, 1930.
    Stone, McLaren & Webb, for appellants.
    Michael Eckstein and John G. Friedmeyer, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This was a suit brought by appellee George W. Farley against James H. Lanham, Maude G. Lanham and Frank Lanham as administrator of the estate of James E. Lanham, deceased, in an action of debt on an appeal bond for $6,000, executed July 9, A. D. 1927, by James' H. Lanham, Maude G. Lanham and James E. Lanham, since deceased, in accordance with the order and decree of the circuit court of Sangamon county, Illinois, entered on or about June 22, A. D. 1927, in a suit for specific performance entitled George W. Farley, complainant, v. James H. Lanham, J. E. Lanham, et al.

The circuit court by its decree found, among other things, that James H. Lanham was indebted on an accounting to George W. Farley in the sum of $3,052.20 for rents collected by him on certain real estate that said Lanham had agreed to convey to George W. Farley, in accordance with the contracts in issue, after allowing all credits, deductions and set-offs. The circuit court also found that James H. Lanham should pay to George W. Farley the further sum of $750, with interest thereon from January 1, 1919, at the rate of 5 per cent per annum. The court also found by its decree that George W. Farley should convey to James H. Lanham 15 acres of land in Saline county, Illinois, within 20 days from the rendition of said decree, and upon his failure to do so he should give credit to the said James H. Lanham in the sum of $780 upon said decree. The court found that the said James H. Lanham had been in continuous possession of said 15 acres of land from January 1,1919, and was in possession of the same at the time of the rendition of the decree.

The said bill for specific performance was appealed to this court and affirmed in volume 250, page 666, certiorari on the same being denied by the Supreme Court.

Upon failure of said James H. Lanham to comply with the decree this suit was brought against him and the bondsmen. A trial was had upon the issues joined and the court directed the jury to return a verdict in favor of the appellee and against the appellants in the sum of $6,000 in debt and for the sum of $4,745 in damages with costs, to the entry of which judgment appellants James H. Lanham and Maude G. Lanham excepted and prayed an appeal to this court, which appeal was allowed upon proper security being given.

The witnesses for appellee testified in the circuit court that appellants did not pay to appellee the amount provided by the decree. This testimony was uncontradicted. Appellants contend that their failure to pay, as provided in the bond, is due to the fact that the deed offered in court within 20 days, as provided in the decree, covering said 15 acres of land, is not a good and sufficient deed, and a credit of $780 should be allowed upon the decree. The appellants further contend that since the appeal bond was given in the penal sum of $3,052.20 and did not mention the sum of $750 and interest on the same at 5 per cent per annum from January 1, 1919, therefore, the judgment upon the bond should be for the sum of $3,052.20 only, and interest on the same from the time the decree was entered. The plaintiff introduced in evidence the deed heretofore filed on or about July 8, 1927, which was tendered in court at that time to the attorney of appellants, who refused it without saying any reasons for so doing. The court allowed this deed to be introduced in evidence and held it was a good and sufficient deed and in compliance with the decree.

The uncontradicted testimony shows that appellant James H. Lanham had possession of said 15 acres of land from January 1, 1919, and obtained all the benefits as the owner thereof; that said land was sold for taxes and appellee, George W. Farley, obtained a quitclaim deed from the owner of the tax title of said 15 acres and thereafter made the deed to appellant James H. Lanham, in compliance with the decree and within the time as provided in the same. The evidence further shows that the abstract to said 15 acres of land was in the possession of appellant James H. Lanham in addition to his having complete ownership of said land. The evidence shows that the bond which appellants signed was prepared by their attorney, Mr. L. E. Stone; that neither the appellee nor his representatives were present, or knew of the existence of the bond until after the matter was appealed to the Appellate Court. It is further shown that the bond was given to the end that said appellants pay the amount of the judgment, costs, interest and damages rendered and to be rendered against James H. Lanham. No evidence was offered by appellants covering the issues involved in the case. The evidence shows the amount of damages under the bond to be $4,745, which was not paid.

The appeal bond in the case upon which suit has been brought provided that: “Appellants should duly prosecute said appeal and pay the plaintiff the amount of the judgment and all interest thereon, and all such costs and damages as should by said Appellate Court be awarded plaintiff in case the said decree should be affirmed. ’ ’

The provisions of the bond follow the statute and the judgment of the circuit court of Sangamon county follows exactly the decree as affirmed in this court and the proper award following that affirmance. An appeal bond not in 'the exact form prescribed by the statute will nevertheless be obligatory on those executing it as a voluntary bond. George v. Bischoff, 68 Ill. 236, 237; Mix v. People, 86 Ill. 329.

Appellants themselves formulated the bond in question voluntarily, and it may be, either accidentally or intentionally, that they omitted to recite a part of the judgment in the bond, nevertheless it has been held that where, on the filing of an appeal bond, appellant has received and accepted all the benefits of his appeal and the supersedeas, his sureties are estopped to set up misrecital of the judgment, as extinguishing or limiting their liabilities. (4 Corpus Juris, 1254; Dye v. Dye, 12 Colo. App. 206; Kotite v. Title Guaranty & Surety Co., 191 Ill. App. 555.)

The judgment is correct and represents the amount the appellants should pay and the judgment of the circuit court of Sangamon county is affirmed.

Affirmed.


text:
    William Flint, Plaintiff in Error, v. J. S. Mundy, Defendant in Error.
    Gen. No. 8,394.
    Opinion filed April 22, 1930.
    Albert E. Isley, for plaintiff in error.
    H. J. Buxbaum, for defendant in error.
   Mr. Justice Shurtleff

delivered the opinion of the court.

Plaintiff in error brought his suit in the circuit court of dark county against defendant in error. There was a trial and judgment that plaintiff take nothing by said suit and that the defendant go hence without day. The record has been brought to this court by writ of error .and in this court defendant in error has presented a plea of the statute of limitations, to said writ of error, to which plea plaintiff in error has filed a demurrer and defendant in error has joined in said demurrer.

It appears from the record that plaintiff in error sued out the writ of error within two years from the entry of judgment in the circuit court, but defendant in error is proceeding upon the theory that by reason of the delay in suing out the writ of error in this court the statute of limitations has run against the original cause of action in the court below, and that that question can be raised by pleading the statute of limitations in this court. But the writ of error is brought, and its function is only to review the record in the lower court. (Bocock v. Leet, 210 Ill. App. 402, 416; Kammann v. City of Chicago, 222 Ill. 63, 66; Cass v. Duncan, 260 Ill. 228, 230.)

In Bocock v. Leet, supra, the court held: “The suing out of a writ of error is the commencement of a new suit, and the assignment of errors is the declaration of plaintiff in error. Clowry v. Holmes, 238 Ill. 577; George v. George, 250 Ill. 251; Cass v. Duncan, 260 Ill. 228; Berry v. Turner, 279 Ill. 338. We have no jurisdiction to grant plaintiff in error any relief outside of his assignments of error. Although it is a new suit, yet it is not an original suit in this court, in which new issues of fact may be framed. Its only office is to try the validity of the proceedings had in the court below, and to determine whether reversible error is found therein. The questions of fact whether Mrs. Thompson took possession of this real estate, whether she conveyed the same to Mrs. Stoughton, whether the latter took possession, and whether Mrs. Stoughton has any title to said lands except under said administrator’s sale and deed, are none of them presented by the assignment of errors, nor by the record filed here for review. ’ ’

From these authorities, it is plain that the demurrer of plaintiff in error to the plea should be sustained and that defendant in error’s plea of the statute of limitations should be held for naught.

Defendant in error has moved the court for an extension of time to present briefs and argument and for leave to join in error in case his plea is denied. This is contrary to the practice. Great Northern Refining Co. v. Jeffris Lumber Co., 308 Ill. 342, 346. In this case it is held:

“Where it is sought to have a case reviewed by an appellate court, the assignment of errors as prepared and presented stands as the declaration of the plaintiff in error. The suing out of the writ of error is the beginning of a new suit. (International Bank v. Jenkins, 107 Ill. 291; George v. George, 250 Ill. 251; Cass v. Duncan, 260 Ill. 228.) If the defendant in error files a plea thereto, such plea is, in effect, a confession of error in the record. It has long been the holding in this State that where pleas in bar are filed in an appellate court to a writ of error, such as pleas of release of errors, former adjudication or Statute of Limitations, and such pleas are held not sufficient because they are not supported by the proofs or because bad in law, such pleas confess that there is manifest error in the record, and the judgment or decree must be reversed whether the alleged errors in fact exist or not, and the court refusing to sustain the pleas will not consider whether the errors are or are not correctly assigned. Austin v. Bainter, 40 Ill. 82; Thornton v. Houtze, 91 Ill. 199; George v. George, supra.

The only exception to this rule is as to a plea of release of errors under section 109 of the Practice Act, Cahill’s St. ch. 110, 109, as revised in 1907. It does not apply to the plea in the case at bar.

It follows that the only order that this court can enter is, that the judgment of the circuit court of Clark county be reversed and the cause remanded, which is the judgment entered in this court.

Reversed and remanded.


text:
    William P. Hale, Appellee, v. Henry L. Harms, Appellant.
    Gen. No. 8,405.

      Opinion filed April 22, 1930.
    William F. Smith and F. K. Lemon, for appellant.
    L. O. Williams, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This was an action brought by appellee to recover damages for a malicious assault and battery charged. The declaration charged that appellant, on August 8, 1929, violently and maliciously struck appellee on the head with a shovel, cutting a large gash upon the head and causing appellee to fall and crumple to the ground and causing appellee great pain and suffering, together with other injuries and damage. Appellant filed a plea of not guilty and a second plea of son assault demesne. There was a trial by jury, a verdict and judgment against appellant in the sum of $1,822.50 in favor of appellee, and appellant has brought the record to this court, by appeal, for review.

Some complaint is made upon the rulings of the court in the admission and rejection of evidence, but upon a reading of the record in that connection we are of the opinion that appellant was not prejudiced by such rulings. As to the proofs, the entire case was tried upon the allegations set out in appellant’s second plea, son assault demesne, and appellant testified:

I then pumped the water, and when I turned around to leave I saw my shovel laying there. I picked up that shovel and was going to put it in the smokehouse, and when I picked up that shovel I saw my garden plow on the other side of the water trough, and I thought I would pick that up. When I went to pick up that plow Hale came up behind me and had a neck yoke in his hand, and said, “You lay that right down there, you God-damn son of a bitch; you have been bulling around here all summer. I am going to beat your God-damn brains out.” I turned around and faced Mr. Hale and said, ‘ ‘ This is my plow. ’ ’ He kept coming at me and said he was going to beat my brains out. I backed back, I would say, about three feet, and I thought I would leave and not have any trouble. I stopped. He still kept coming at me and I hit him with the shovel on the head. He fell. I stood there and watched to see that he wasn’t hurt bad and then I turned around and walked out to the lot there and went out and helped unload the calf in the pasture.

Appellant further testified: When he hit him he fell. He did not fall straight down; he just kind of crumbled down. I stopped him. I didn’t think I was going to hit him until I had to. When I made up my mind I aimed to hit him enough to stop him so he wouldn’t hurt me. When he crumbled down I stood right there. I believe I stood there five minutes. His wife was not there then. She came out in the meantime. It was something like five minutes before she came out, but I don’t know; it was long enough that I stood there until I saw that he wasn’t hurt. He fell backwards. He was kind of sitting up when I saw him. He never did lie fiat down. He was kind of sitting down and he was talking to me. I don’t know what he said. He was not bleeding while I was there. He was sitting about five or six feet from me. I didn’t see any blood.

Appellant was not corroborated in any of his testimony. In fact, his story is flatly contradicted by appellee, his daughter Virginia, a small child, and by the conduct of appellee’s wife. It is plain that the jury was compelled to accept one story and not the other. Appellee testified: At that time I was sitting on the little step that leads into the old kitchen door. When I first noticed Harms he was twenty-five or thirty yards south of the fence, at the road. The concrete walk leads out to the gate and the gate opens into the back lot, used as a barn lot. The steps to the west porch lead to the cob house. There is a fence on the south side of the yard. When I saw Mr. Harms, he came on to where there is an old hay rack that we have, with one end on the ground, used for piling anything on that we didn’t have in use, forks, shovels or wire, anything, and he picked up a long handled shovel and he brought it on with him and brought it in the gate; he picked it up in the lot. He came on up on that porch. He came right up that south walk through that gate. He came facing me. When he came up there the children were playing on the concrete, my child and Mr. Perry’s child. The child was around a year and a half old. Mr. Perry’s child was about seven years old, going to school. Mr. Harms ran against and shoved that baby of mine off a little three-wheeled car, a kiddy car; it is a kind of a tricycle, three wheels with a handle, and he plays on that all the time, riding around. The child run to me, squalling, crying. I said, “Doc, that makes two or three times you have run against that baby,” and I said, “There is no need of a man running against a baby that has any eyes.” I said, “He isn’t old enough to get out of your way.” Harms had stepped out on the ground as near as that is to you; that is, about five or six feet. He said, “By God, hain’t I on my own place?” I said, “I don’t know if you are or not; you claim it. I don’t care if it is, it don’t give you any right to run over that baby.” My wife stepped out and picked up the baby, and I was still standing there, and took me by the arm and said, “You come on in the house; there is no need of arguing with a man like that.” I had just started to turn around and never said anything, and like a flash .of lightning I felt something strike me on that side of my head. It left a scar near the top or right front lobe of my head. That is all I know that happened. I don’t know what they done after that, or what was said. The next time I knew anything was some time that evening when I was on the bed.

The daughter Virginia testified: I remember the occasion of Mr. Harms coming there and he and my father having some trouble. At that time I was in the front room. When I heard them talking loud I came out to the kitchen door and saw Mr. Harms and my father talking. My father was standing on the edge of the porch and Mr. Harms on the ground down off the step at the end of the porch. I don’t know what they said. My mother went outdoors and told my father to come in and took him by the right arm and picked up my baby brother and they turned to come in and just as they turned Mr. Harms hit my father over my mother’s shoulder with a shovel. It was a round shovel with a long handle. It wasn’t four feet long. Mr. Harms held the shovel and came back like this (indicating) and brought it around over one shoulder. He hit my father in the head and my father fell. Mr. Harms then run south and jumped over the gate, which was about fifteen or eighteen feet away. The gate is on hinges and swings. Mr. Harms -did not open the gate. He jumped over it while he was running. He went out nearly to the barn. He run part of the' way. He went down to the truck there and put his shovel in and went out to the field.

Appellant’s plea confesses the assault charged, and from the proofs submitted the assault was wholly malicious and unwarranted. That, apparently, was the view taken by the jury, and in that view we concur.

Appellant assigns error upon the refusal of the court to give certain instructions for appellant, but we find that the substance of all such instructions was covered by others.

Appellant also assigns error upon the giving of certain instructions for appellee. For example, appellee’s first instruction, which is as follows:

“You are instructed that an assault and battery is the unlawful beating of another and you are further instructed that the least touching of the person of another in a rude, insolent or angry manner is a battery.”

And appellee’s seventh instruction: “The court instructs the jury in this case that if you believe from the evidence that the defendant assaulted and struck the plaintiff, as charged in the declaration, then, in order to find the defendant not guilty you must believe, from the evidence in the case, that the striking was done in necessary self-defense of the defendant.”

Under the pleadings and proofs in this, case both instructions stated the law correctly. The rule is, in an action of trespass for an assault and battery, where the defendant pleacLed son assault demesne, with a replication de injuria by the plaintiff, an instruction which told the jury that under the pleadings in the case, the burden of proof was upon the defendant to establish, by a preponderance of the evidence, first, that the assault was made in necessary self-defense ; second, that in' making the assault, the defendant used no more force than was necessary to protect himself, was a correct statement of the law and a proper instruction. (Gizler v. Witzel, 82 Ill. 322, 326; Reimenschneider v. Neusis, 175 Ill. App. 172, 175; Spenler v. Turley, 158 Ill. App. 146; Wells v. Englehart, 118 Ill. App. 217, 219; Swigart v. Ballou, 106 Ill. App. 226, 227; Hulse v. Tollman, 49 Ill. App. 490, 497; Chicago, R. I. & P. Ry. Co. v. Barrett, 16 Ill. App. 17, 29.) By the plea of son assault demesne the defendant assumes the burden of proving not only that the plaintiff first assaulted him and that he, the defendant, acted in necessary self-defense, but also that in so defending himself he used no more force than was necessary. Spenler v. Turley, supra. And it is further held that in an action for assault and battery, on an issue taken on replication de injuria to a plea of son assault demesne, the burden is upon the defendant to prove that the assault was made in necessary self-defense, and that he used no more force than was necessary. (Reimenschneider v. Neusis, supra; Wells v. Englehart, supra.)

Finding no error in the record that will warrant a reversal of the judgment, the verdict and judgment of the circuit court of DeWitt county is affirmed.

Affirmed.


text:
    Standard Motors Securities Corporation, Appellee, v. Yates Company, Appellant.
    Gen. No. 8,416.

      Opinion filed April 22, 1930.
    A. E. and R. C. DeMange, for appellant.
    Stoke & Taylor, for appellee; Branson Wright, of counsel.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an action in replevin, by which appellee, Standard Motors Securities Corporation, as plaintiff, gained possession of an automobile from William W. -Yates, Robert C. Yates and Richard W. Yates, operating a garage as Yates Company, a partnership.

Carl Anderson, on October 22, 1928, purchased and took possession of an automobile by virtue of a conditional sales contract. The contract was assigned to appellee, Standard Motors Securities Corporation. The automobile was subsequently damaged while in the possession of Anderson and Anderson took it to appellant’s garage for repairs. Appellant repaired and stored the automobile at the request of Anderson and charged the sum of $136.05 for the services. That the services were performed; that they were necessary; and that the charge is reasonable, is not questioned.

After the automobile was repaired and the charges for storage incurred, appellee claimed the right to repossess the automobile under the conditional sales contract and replevied it from appellant’s possession leaving appellant’s charges unpaid.

To the usual declaration in replevin charging unlawful taking and detention, appellant pleaded six pleas, of which the fourth and sixth aver facts claiming a lien upon the automobile to secure payment for the repairs, materials and storage furnished by appellant. The court sustained a demurrer to appellee’s first replications to the fourth and sixth pleas and, on June 3, 1929, appellee filed an additional replication to the fourth plea and two additional replications to the sixth plea. The replication to the fourth plea is in form a pleading in confession and avoidance. All three replications admit the fact, or aver facts, establishing that Anderson was in lawful possession of the automobile under the conditional sales contract when he delivered the automobile to appellant and requested the repairs, but seek to interpose the conditional sales contract as giving appellee the right to possess the automobile as against the lien created by section 1 of the Garage Keepers’ Lien Act (Cahill’s Ill. Rev. Stat. 1929, ch. 82, ¶ 45), and without paying appellant’s1 charges. The replications thus raise the issue that appellee’s right to possession under its sales contract is paramount to appellant’s right to possession under the lien.

Appellant demurred generally and especially to the replications. All pleadings except the declaration, appellant’s fourth and sixth pleas and appellee’s replications of June 3rd to the fourth and sixth pleas were withdrawn. Appellant’s demurrers were overruled; appellant stood by the demurrers and moved in arrest of judgment. .The motion in arrest of judgment was overruled and the court entered judgment against “Tates Company, a partnership, composed of William W. Tates, Bobert C. Tates and Bichard W. Tates,” etc., for one dollar damages for unlawfully detaining the automobile and that appellant, Standard Motors Securities Corporation, retain possession of the automobile replevied. Appellant has brought the record, by appeal, to this court for review.

The statute in question, under which appellant seeks to establish a lien against the machine, is as follows:

“An act for the better protection of any person, firm or corporation expending labor, skill or materials upon, or furnishing storage for, any chattel, creating a lien upon such chattel, and providing for the enforcement of such lien.
“Paragraph 45, Lien for labor, materials, storage— Duration.] Section 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly: Every person, firm or corporation who has expended labor, skill or materials upon any chattel, or has furnished storage for said chattel, at the request of its owner, reputed owner, or authorized agent of the owner, or lawful possessor thereof, shall have a lien upon such chattel beginning on the date of the commencement of such expenditure of labor, skill and materials or of such storage for the contract price for all such expenditure of labor, skill or materials, or for all such storage, or in the absence of such contract price, for the reasonable worth of such expenditure of labor, skill and materials, or of such storage, for a period of one year from and after the completion of such expenditure of labor, skill or materials, or of such storage, notwithstanding the fact that the possession of such chattel has been surrendered to the owner, or lawful possessor thereof.” (Cahill’s Ill. Rev. Stat. 1929, Liens, chapter 82, ¶ 45, p. 1666.) The same statute is found in Smith-Hurd’s Rev. Statutes, chapter 82, section 40.

The ruling of the court below is that appellant has no lien which it can enforce against the holder of the legal title to the car. This question has not, heretofore, been passed upon by the Supreme Court of this State, as the statute may affect conditional sales contracts. The court has passed upon the question as it relates to chattel mortgages. Appellant contends that, until the adoption of the Uniform Sales Act, by this State, Cahill’s St. ch. 121a, If 4 et seq,, the creation of an apparent ownership and the concealment of the true owner by an unrecorded conditional sales contract has by the courts of this State been consistently held to be a constructive fraud upon persons ignorant of the conditional sales contract and in good faith dealing with the conditional sales vendee as owner. (Sherer-Gillett Co. v. Long, 318 Ill. 432.) Possession of a chattel was long held to create a presumption of ownership. (Gilbert v. National Cash Register Co., 176 Ill. 288, 297; McNeil Ill. Evidence, vol. 2, p. 1816.) The adoption by the State of the Uniform Sales Act authorizing conditional sales necessarily reversed the position of the courts upon the question; and the basic statutes, upon which other liens are recognized in this State, are shown to be founded upon the possession of the holder, assuming such possession in all cases to be a lawful possession. The laws of other states are cited by appellant: Davenport v. Grundy Motor Sales Co., 28 Cal. App. 409,152 Pac. 932; Goodman v. Anglo-California Trust Co., 62 Cal. App. 702, 217 Pac. 1078; Smith v. Stevens, 36 Minn. 303, 31 N. W. 55; Laird v. Moonan, 32 Minn. 358, 359, 20 N. W. 354; Monthly Instalment Loan Co. v. Skellet Co., 124 Minn. 144, 144 N. W. 750; Terminal Corp. v. O’Rourke, 193 N. Y. S. 238; Smith v. Pierce-Arrow Sales Corp., 230 N. Y. S. 194; Crosier v. Cudihee, 85 Wash. 237, 147 Pac. 1146, and Cache Auto Co. v. Central Garage, 63 Utah 10, 221 Pac. 862, 30 A. L. R. 1217, which involves a conflict between a garage keeper’s lien and the rights of a conditional sales vendor. The validity of statutes giving garage keepers paramount liens is assumed. Many cases are reviewed ¡and the opinion clearly distinguishes between the Utah statute providing for a lien when the work is done at the request of “owner” and the statutes of other States providing for liens where work is done at the request of the “lawful possessor.” But it is not clear whether the decisions of these courts just cited are based upon provisions of the Uniform Sales Act or upon other statutes. We conclude the latter.

In this State the court had before it a construction of the provisions of the Uniform Sales Act in the case of Sherer-Gillett Co. v. Long, 318 Ill. 432, in which the court held:

“Before sales became a subject of uniform legislation it was settled by an overwhelming weight of authority that the seller is not estopped by his conduct in delivering the possession of goods to the buyer upon a contract of conditional sale from asserting his title against one who purchases from the buyer, relying upon the apparent title of the latter (1 Williston on Sales, — 2d ed. — sec. 324; Harkness v. Russell & Co., 118 U. S. 663, 7 Sup. Ct. 51; Arnold v. Chandler Motors, 45 R. I. 469, 123 Atl. 85;) but in this State we had held that a delivery of personal property to the purchaser upon a contract of conditional sale, with a retention of title in the seller, amounts to constructive fraud, which postpones the right of the real owner in favor of those who have dealt without notice with the conditional vendee, who has been given the indicia of ownership. (Gilbert v. National Cash Register Co., 176 Ill. 288; Brundage v. Camp, 21 Ill. 330.) Uniformity in the law of the several States pertaining to sales being deemed essential to the commercial welfare of the country, leaders of the American bar prepared and submitted to the legislatures of the several States a uniform sales act and a uniform conditional sales act. The former was adopted in this State in 1915 and is the law today. By section 20 of the act the validity of a contract of conditional sale is recognized. Section 23 declares the law of this State respecting the transfer of title to be that theretofore declared by the great majority of the courts of this country. It provides: ‘Subject to the provisions of this act, where goods are sold by a person who is not the owner thereof, and who does not sell them .under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell.’ . . . The Uniform Sales act recognizes the validity of such contracts and specifically provides that no title can be passed by the purchaser of goods under such a contract ‘unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell.’ There is no basis for the operation of an estoppel in this record.”

As to conditional sales contracts, in Sherer-Gillett Co. v. Long, supra, and in other cases, it has been held in this State that the seller retains the title and ownership of the goods, a vested property right of which he can be in no manner deprived except by his own misconduct, resulting in estoppel.

The same statute as to a lien was before the court in Ehrlich v. Chapple, 311 Ill. 467, 469; where the question involved a lien for the repair of a machine, upon which there was a chattel mortgage, and the court said: “A chattel mortgage executed, acknowledged and filed for record as the statute requires is notice to all the world. Bogasch, the garage keeper, was bound to know of the lien of the chattel mortgage. . . . The main question on this branch of the case is, Gould Bogasch enforce the lien for charges which accrued after the chattel mortgage was filed for record, as a prior lien to that of the chattel mortgage? In our opinion he could not, and in so far as the statute purported to give him that right it was in violation of section 2 of our bill of rights. The lien of the chattel mortgage was a vested property right, which neither he nor his assignee for value could be deprived of by legislative act. — City of Chicago v. Wells, 236 Ill. 129; Barque Great West v. Oberndorf, 57 Ill. 168; Millett v. People, 117 Ill. 294; Ramsey v. People, 142 Ill. 380.”

If the act creating the lien could not be construed to extend to a machine covered by a chattel mortgage, the possession of which by contract is in the mortgagor until default, neither can it by construction be carried to a machine subject to a conditional sales contract, in which the legal title and the vested right of ownership is in the seller, and of which vested right he cannot be deprived except by due process of law.

Some argument is made that the rule is against the best public policy of the State. This question is not before us, and if it were it need only to be suggested that no mechanic is called upon to work upon machines owned by others or without his pay, if he will use suitable diligence in that behalf.

Finding no error in the record, the judgment of the circuit court of McLean county is affirmed.

Affirmed.


author: Mr. Presiding Justice Wilson

text:
    Josephine Nolan, Appellant, v. John J. Nolan, Appellee.
    Gen. No. 33,684.
    Opinion filed May 14, 1930.
    Kern, Stiefel & Stiefel, for appellant; Jacob J. Kern and Charles W. Stiefel, Jr., of counsel.
    John F. Higgins and Myer H. Gladstone, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

The complainant, Josephine Nolan, filed her bill for divorce charging cruelty on the part of the defendant, John J. Nolan. The defendant filed his answer and a cross-bill charging the complainant with adultery. The cause was tried on an amended bill and answer thereto, amended cross-bill and supplemental cross-bill and answer. The chancellor who heard the cause dismissed the amended bill of complainant for want of equity and found for the cross.complainant on his amended and supplemental cross-bill and granted him a decree of divorce because of adultery by the cross defendant. By the decree the chancellor returned the custody of the children to the cross complainant and provided that they should be placed in a school at his cost. From this decree complainant prayed and perfected an appeal and filed her bond. After the filing of the bond, on motion of solicitors for cross complainant, she was ordered to turn the custody of the children over to the school named in the decree. Upon refusal of the complainant and cross defendant to comply with this order, an order was entered directing the sheriff of Cook county to take the children into custody, from which order this appeal was taken.

But one question is involved in this case, viz.: Did the superior court of Cook county lose jurisdiction of the cause upon the filing of the bond and the perfecting of the appeal to this court? It may be stated as a general rule, that the filing of a bond and the perfecting of the 'appeal deprives the trial court of further jurisdiction in the cause, while the appeal is pending. It is insisted on behalf of counsel for cross complainant, however, that there should be an exception in the case of children, inasmuch as they are wards of the court. It is also urged that the said complainant was the custodian of the children under an order of the court and, as such, was still amenable to its order in so far as the children were concerned.

The Divorce Act, chapter 40, If 16, Cahill’s Illinois Revised Statutes of 1929, makes provision for the payment of alimony during the pendency of an appeal. This appears to be the only exception to the rule.

The question of the custody of the children was one of the questions involved in the litigation and the complainant had the right to have this question reviewed by appeal, as well as any other question involved in the proceeding. The perfecting of the appeal operated to stay all further proceedings under the decree. 19 Corpus Juris 361. State ex rel. Gray v. Hennings, 194 Mo. App. 545; In re Dupes, 31 Cal. App. 698.

For the reasons stated in this opinion the order of the chancellor of the superior court is reversed.

Order reversed.

Ether and Holdom, JJ., concur.


text:
    Helen Tarka, a Minor, by her Mother and Next Friend, Anna Tarka, Appellant, v. G. D. Pratt and Henry G. Guillaume, Trading as Pratt-Guillaume Company, and Edwin F. Daniels & Company, Appellees.
    Gen. No. 33,804.

      Opinion filed May 14, 1930.
    Murphy O. Tate, for appellant.
    No appearance for appellees.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

Plaintiff, Helen Tarka, a minor, by her next friend, Anna Tarka, brought suit against G-. D. Pratt and Henry C. Gruillaume, doing business as Pratt-Guillaume Company, and Edwin F. Daniels & Company, a corporation, to recover for personal injuries sustained by her on November 6, 1927. At the conclusion of the plaintiff’s case, the defendant Edwin F. Daniels & Company, a corporation, was dismissed out of said suit on motion of plaintiff, and it becomes unnecessary to further refer to this defendant.

The declaration consisted of three counts. The first count charged that the defendants, Pratt-Ghiillaume Company, were engaged in the business of hauling and cartage and were in possession and control of a certain motor truck, driven along Webster Avenue in the City of Chicago, and that said truck was so carelessly and negligently operated that, as a result, a certain automobile in which plaintiff was riding as a passenger was caused to and did collide with the truck, and plaintiff was injured.

The second count charged negligence on the part of the defendants in their failure to have a tail light on said truck during the hours of the night when the accident occurred.

The third count charged the defendants with negligence in permitting said truck to stand motionless on Webster Avenue without a light on said truck and failure to warn plaintiff of its presence on said street.

Defendants Pratt and Gruillaume filed a plea of the general issue.

At the conclusion of plaintiff’s evidence, the court instructed the jury to return a verdict finding the defendants not guilty, and judgment was entered upon the instructed verdict.

Defendants have failed to follow this appeal and we have not been aided in our consideration of the case by any brief or argument on their behalf.

From the facts it appears that the plaintiff was riding on the right-hand side of the driver in a Ford roadster going west on Webster Avenue in the City of Chicago. It was in the nighttime and the street was dark. The Ford roadster was proceeding at the rate of from 15 to 18 miles an hour. The truck in question was standing upon the street and had no lights and no warning was given to plaintiff or the driver of the Ford roadster. Neither the driver nor plaintiff saw the truck until they had crashed into it and, as a result of the collision, plaintiff was badly injured. It appears from the evidence, although not clearly, that the defendant maintained a garage at Southport and Clybourn Avenues, where there were a number of cars or trucks belonging to the defendants. It also appears from the evidence that there were trucks other than those belonging to the defendant and that the truck in question was the property of Edwin F. Daniels & Company, a corporation, but which on the night in question was left in defendants’ garage.

Among other employees, the defendant had a man by the name of Holmeide, who was employed as a mechanic, and whose duties were to repair trucks, get repairs and parts for trucks, and service those which were broken down while in use throughout the city. In the doing of this work, he used his own car, but the gasoline and oil necessary for the operation of the car was furnished by the defendants. This car was kept at the garage at Southport and Clybourn Avenues.

Holmeide testified that he rode home in his car at night, but brought it back each day because it was used in the business of the defendants. On the night in question, he started home at 12 o’clock midnight, and got as far as Robey and Webster Streets when the universal joint of his ear broke down. He then pushed it over to the curb and went back to the garage. There he got the night man and they took the first truck in line, which happened to be the Daniels ’ truck and proceeded toward the point where Holmeide’s car was standing. The gasoline, however, gave out and it became necessary to leave the truck while they returned to the garage and got an additional supply of gasoline. There was no light on the truck.

Objection was made to certain questions asked concerning the duties of the night man employed by the defendants and the objections sustained. We believe that the position occupied by the night man, together with his duties, was pertinent to the issue as bearing upon the question as to whether or not he was acting within the scope of his employment at the time he and Holmeide took the truck out of the garage. It appears that the purpose of taking the truck was to pull Holmeide’s car back to the garage. We gather from the record that the court, in directing the jury to return a verdict in favor of the defendants, was evidently of the opinion that neither Holmeide nor the night man was acting within the scope of his employment in the operation of taking the truck out of the garage for the purpose of pulling back Holmeide’s car. In considering this question, it should be borne in mind that a peremptory instruction should not be given where there is any evidence which fairly and reasonably tends to support the allegations of the declaration. McFarlane v. Chicago City Ry. Co., 288 Ill. 476.

At the time Holmeide left the premises of the defendants and started home in his car, he was not engaged in the business of the defendants and if the accident in question had been caused by reason of a collision with his car, the instructed verdict would have been proper. When, however, he returned to the garage and procured the services of the man left there in charge by the defendants and, with this man, proceeded in the truck to pull his car, it raised a question of fact whether or not the services then performed by these two men or either of them were for the benefit of the employers and in and about the employers ’ business. The fact that the truck was left at the place in question by the servants of the defendants, in and of itself, would furnish some evidence, until overcome, that it was done in and about the defendants’ business. The plea of general issue denied only the wrongful act. It does not put in issue the ownership, operation, nor control of the instrumentality. Mueller v. Hayes, 321 Ill. 275.

The fact that the automobile was used by the defendants in and about their business might raise an inference that Holmeide and the night man were, in fact, servicing the automobile of Holmeide in order that it might be used in and about the business, of the defendants when it had been repaired. The night man was in charge of the garage and the trucks and automobiles on the premises, from midnight on, and in proceeding with the truck to pull in the automobile may well have ■ intended doing it for the benefit of his employers, inasmuch as the automobile was used in the company’s business. Kavale v. Morton Salt Co., 242 Ill. App. 205.

If, in fact, the service was being rendered for the purpose of Holmeide, the court properly instructed a verdict. If, however, it was rendered for the benefit of the defendants, it might well be argued that it came within the scope of the employment of the servants engaged in the operation.

The fact that the defendants furnished the gasoline and oil for the automobile and used it for their own purpose, would readily raise an inference, drawn from the testimony, that they would have performed the act of service on the automobile the following day with full cognizance of the facts. The fact that it was done that night by the man left by them in charge, raises a question of fact which should have been submitted to the jury as to whether the night man was, in fact, engaged in the business of his employers when he undertook to do the act in question.

In the absence of testimony showing that the night-man had no authority, it cannot be said that the evidence is of such a character that it would lead all reasonable minds to conclude that the truck was not being driven on or about defendants’ business.

It might readily be inferred that it was part of the night man’s duty to do the very thing in question and, in the absence of evidence to the contrary, we are of the opinion that the trial court was in error in directing the verdict at the end of plaintiff’s case.

For the reasons stated in this opinion the judgment of the superior court is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Ether, J., concurs.

Holdom, J., not participating.


text:
    The Standard Computing Scale Company, Appellant, v. A. Dombrowski and Max Sugar, Appellees.
    Gen. No. 33,813.

      Opinion filed May 14, 1930.
    G. T. Graham, for appellant.
    Levisohn & Levisohn, for appellees.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

This cause was tried by the court without a jury upon a stipulation of facts and resulted in a finding in favor of the defendants and judgment on the finding.

From the agreed facts it appears that the plaintiff, The Standard Computing Scale Co., sold to Charles A. Griffith a Standard Computing scale, to which was attached certain metal letters bearing the name of the Standard Computing Scale Co. Griffith was operating, a grocery store and the scales were used by him as part of his equipment in the conduct of his business. The sale was made August 24, 1928, and a certain specified sum paid on the purchase price, leaving a balance of $200 due and unpaid. The sale was made under a conditional sales contract which provided as follows:

“It is agreed no title to said property shall vest in the vendee or other person, firm or corporation, until paid for in full.”

Payments of $10 monthly were to be made by the purchaser beginning October 20, 1928, until the purchase price was paid, at which time title was to vest in the vendee. October 17,1928, by reason of an execution issued in the case of Diversey Store Fixture Co. v. Charles A. Griffith and Kurt Wentzel, the scale was levied upon and sold on October 27, 1928, to Max Sugar, and by him in turn sold to Dombrowski on October 28, 1928. These two were the defendants below and are the appellees here.

It is admitted that Dombrowski was an innocent purchaser for value. From the facts it is apparent that the levy on the goods was made before the first payment was due under the conditional sales contract, and the sale was made seven days after this payment matured. It appears that the sale was advertised by the bailiff of the municipal court and the plaintiff took no action to replevy the goods until January 29, 1929, at which time this suit was started in the municipal court. It is insisted that this delay in starting suit was, such conduct as would work an estoppel against the then vendor. With this, however, we cannot agree.

The estoppel contemplated by the Uniform Sales Act, Cahill’s St. ch. 121a, If 26, is the conduct of the vendor while the property is in the hands of the vendee and not after the sale to an innocent purchaser. It is true that if the vendor had left the property in the hands of the vendee for a considerable length of time, after the conditional payment became due, it might be held to be a waiver of his rights to enforce the contract. The innocent purchaser, however, took the property under the bailiff’s sale as of the date of that sale and subject to the rights as they existed between the vendor and the vendee. It may have been that the plaintiff was unable to locate the property after the sale, especially as in the case at bar the execution purchaser subsequently sold it to a third party. From the record it appears that the sale of the property by the bailiff was seven or eight days after the first conditional payment was due, and we are of the opinion that this period of time is insufficient to create a condition of estoppel as against the vendor in the original sales contract. The sale by the bailiff of the municipal court carried only such title to the property as the bailiff had. The bailiff had only such title as Griffith had. Graver Bartlett Nash Co. v. Krans, 239 Ill. App. 522.

Under the'Uniform Sales Act, Cahill’s St. ch. 121a, 1i 4 et seq., in force in this State July 1, 1915, the right of the vendor to reserve possession of property until certain conditions have been fulfilled has been expressly provided for. Under the conditional sales contract in this case, the vendor under this statutory enactment was authorized to reserve title to himself, and there is nothing in the record, in our opinion, showing his right to have been lost by reason of his conduct.

In the case of Dayton Scale Co. v. General Market House Co., 248 Ill. App. 279, it appears from the facts that default was made by the vendee in a number of payments, but the vendor did not exercise its rights to reclaim the property, but by its conduct, in allowing the property to remain in the hands of the vendee after a condition broken, waived its right to a strict compliance with the contract.

The case of Illinois Bond & Investment Co. v. Gardner, 249 Ill. App. 337, was a case where the vendor sold and delivered to the vendee certain automobiles. The vendee was engaged in the business of selling automobiles to the public and there was nothing that would put a prospective purchaser on notice as to a conditional sales contract. In other words, in the case cited, the vendor conveyed to the vendee property which was intended to be sold to the public and in this manner became a party to the sale. In the case at bar, the property involved was a store fixture and Griffith, the purchaser, was not engaged in the business of buying or selling Standard Scales or any other character of store equipment.

In the present case the trial court found in favor of the defendants and was not called upon to .ascertain the damages, if any, sustained by the plaintiff. The cause should be retried for the purpose of ascertaining the damages sustained if any, the facts being stipulated no other question is open for consideration.

For the reasons stated in this opinion, the judgment of the municipal court is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Ryher, J., concurs.

IIoldom, J., not participating.