author: Mr. Justice Edwards

text:
    In re Estate of John Trapp, Deceased.

      Opinion filed January 23, 1933.
    Rehearing denied February 25, 1933.
    J. A. Lamkin, for appellant.
    P. J. Kolb, for appellees.
   Mr. Justice Edwards

delivered the opinion of the court.

During the summer of 1928, John Trapp and Matilda Trapp, of Wabash county, were wedded, it being the second marriage for both parties. Each at the time was possessed of considerable property, he having several thousand dollars in notes, and certain chattels, while she had a home near Mt. Carmel, which had come to her through her first husband. After the marriage, Mr. Trapp moved to the residence of his wife, where he lived until his death on September 9,1930, and during which time he improved her place by installing electric lights, a water system and bath, and the addition of a furnace, spending for same in the neighborhood of $800.

In August of 1930, Mr. Trapp was taken ill with what proved to be his last sickness; he lingered for three weeks, when he died. About August 15th, he asked his son Oliver, one of the appellees, to get a lawyer for him, as he desired to arrange some business matters. The son called at the law office of Mr. Kolb of Mt. Carmel. The attorney not being in, the son so reported to the father, who then said not to mind, as he would be getting better, and attend to it himself. Mr. Trapp grew worse, required the care of an attendant, and his children took turns sitting up with him at night.

The proof shows that on the night of August 27, Oliver and his wife were attending the father; that the latter arose from his bed, went to a closet off the room, took from an overcoat pocket a package of notes amounting to $7,400, in his favor, severally executed by his sons, Peter, Ben and Sylvester, and his son-in-law Herman Steckler, gave them to Oliver, telling him to see that his debts, amounting to about $1,400, were paid; that the balance of the proceeds -of the notes be •distributed equally among his nine children and one grandchild, the son of a deceased son, and then turn the notes back to the makers. Oliver took the notes, retained them until September 15, or six days after the death of John Trapp, when he and the other children accounted together, arranged to pay the debts of deceased, including funeral expenses, and divided the proceeds of the notes, first deducting the amount of debts; after which the notes were returned to the makers.

Matilda Trapp, having been appointed administratrix of her husband’s estate (he having died intestate), filed a petition in the county court against the appellees, Oliver Trapp, Peter Trapp and Sylvester Trapp, under section 81 of the Administration Act, Cahill’s St. ch. 3, If 82, for the discovery of assets, and particularly to reach the promissory notes in question. The court, after a hearing, denied the prayer of the petition; the administratrix appealed to the circuit court, where again the cause was heard, and the issue found in favor of the appellees. From an order to that effect, she has prosecuted this further appeal.

Appellant, in her brief and argument, tersely states that the decision of the case turns upon the question whether Oliver Trapp was agent for the decedent, or was acting as trustee for the beneficiaries. With this declaration, we agree. It then becomes necessary to determine whether John Trapp, at the time he delivered the notes to Oliver, and directed him as to their disposition, made the son his own agent, or whether he thereby created him a trustee of the fund, represented by the notes, for the benefit of his said grandchild and his nine children, of whom "Oliver was one.

It will be observed that the deceased did not, by any word or act, indicate that he retained a right of recall of the notes, or that he reserved any control over or beneficial interest in them. He appeared to yield all dominion over the instruments, and it seems reasonably clear that his intent was to pass .at once, to his children and grandchild, the ownership of the fund represented by the notes, less the amount of his debts; and that Oliver was the trustee of the securities, for their future division, as directed by Mr. Trapp.

The law seems to be well settled that where a person understandingly and clearly makes evident a purpose to present others with personal property, and in consummation of the purpose, delivers same to a third party for the benefit of the intended donees, relinquishing all dominion and control over the property, the person to whom the delivery is made, in the absence of controverting circumstances, is regarded, in law, as trustee for the donees, and not as agent of the donor; and where, in addition, as here, the person to whom the delivery is made is one of the beneficiaries, and receives the deposit as trustee, coupled with an interest, it follows that he takes and holds the property as trustee for the donees. Martin v. McCullough, 136 Ind. 331, 34 N. E. 819; Mollison v. Rittgers, 140 Iowa 365, 118 N. W. 512. It seems clear that Oliver Trapp was a trustee of the fund for the beneficiaries, and not the agent of his father.

The rule is that “title to personal property by gift may be passed by delivery of it by the owner to another as trustee for the donee. In such case, delivery to the trustee is deemed, in law, delivery to the donee, and divests the donor of all control over or right or title in the property, and the gift is irrevocable. When a trust has been perfectly created, it is not revocable by the death nor at the will of the party who created it.” Trubey v. Pease, 240 Ill. 513, at page 521; Light v. Scott, 88 Ill. 239.

The acceptance, by a donee, of a gift which is beneficial to him, will be presumed; and the presumption prevails, in the absence of a showing to the contrary. If the gift is to a third party, as trustee for the beneficiary, this presumption will obtain, although the latter have no knowledge of the transaction. In such case the acceptance of the trustee inures to the benefit of the donee. Warner v. Keiser, 93 Ind. App. 547, 177 N. E. 369; Martin v. McCullough, supra; In re Stochham’s Estate, 193 Iowa 823, 186 N. W. 650. Here, the gift was to the advantage of the beneficiaries, and there appearing no circumstances to show that they rejected same, within the rule as stated, their acceptance is implied.

For the reasons stated, we are of opinion that John Trapp created Oliver Trapp a trustee for the benefit of the intended donees, of the proceeds of the notes, less the amount of the indebtedness of the deceased; that his action divested him of all control over, or right, to the property, and that his death before the actual distribution of the funds, and the return of the notes to their makers, did not work a revocation of the gift.

Appellant also argues that a confidential relation existed between Oliver Trapp and his father, and that as a consequence, the burden was thus cast upon appellees to so clearly and unequivocally establish the gift, that no contrary suspicion might arise, and that such quantum of proof is lacking. Upon a careful examination of the record, we fail to find any evidence of the existence of a confidential relation, as claimed. Nothing more than the ordinary family affiliations seems to have existed between the children and their father; they were severally, in turn, caring for him and trying to ease the suffering of his last illness, nothing more than would be expected of any dutiful and affectionate child. Where this is true, there is no fiduciary relation. Bishop v. Hilliard, 227 Ill. 382.

Upon a consideration of the record, it is our conclusion that the trial court rightly dismissed the petition, and its judgment in so doing will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Fulton

license: Public Domain

text:
    Earl Wasem, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Opinion filed January 23, 1933.
    Rehearing denied February 25, 1933.
    Brown & Burnside and Kramer, Campbell, Costello & Wiechert, for appellant.
    Arthur Bob and Chas. B. Myers, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

Appellee, Earl Wasem, the insured in an accident and health policy issued by appellant, Metropolitan Life Insurance Company, recovered a judgment for $2,280 and costs in an assumpsit suit in the circuit court of Fayette county. The case comes to this court on appeal from that judgment. The declaration consisted of one count, in which the policy sued on was set out and declared on and in which it alleged the execution and delivery of the accident and health policy by appellant to appellee on June 6, 1929.- It further set forth what the policy provided by way of benefits to be paid appellee in the event of disease or sickness, directly or independently of all other causes, should it wholly disable or prevent the insured from performing any and every kind of duty pertaining to his occupation: -also an additional indemnity for an additional 100 weeks in case the insured was disabled and prevented from performing any kind of duty pertaining to his occupation for the period of one year by reason of being partly paralyzed in one arm and one leg. The count further averred that after - the execution and delivery of the policy the appellee did contract a disease and sickness, whereby he became totally disabled and prevented from performing any duty pertaining to his occupation; that he remained so disabled for a period of more than one year; that such disease caused a paralytic condition of one arm and one leg, whereby he had lost the total use of same; that he gave notice of said sickness to appellant under the terms of the policy and has paid the premiums and complied with all the provisions of the policy on his part. To the declaration the appellant filed the general issue and five special pleas, which in substance alleged that in the application, appellee’s answers to certain questions were untrue and made with an attempt to deceive appellant; that each of said answers did materially affect the acceptance of said insurance and did materially affect the hazard assumed by appellant in the issuance of the policy; that appellee did not contract the disease or sickness during the term of the policy but that the disease was an infirmity existing prior to the date of said policy; that no notice was given of the sickness within 10 days after the commencement of disability from such sickness and that appellant had never been furnished with proof of loss covering the claim of appellee.

To those pleas appellee filed replications denying the facts alleged in the pleas and averring that at the time of signing the application appellee was not afflicted with any form of disease so far as he knew; that he had. not had medical or surgical advice or treatment within the last five years: that the answers were true so far as appellee knew; that if he did have any medical advice or treatment during the five-year period prior to making the application it was of such a minor or slight nature that it would not affect the acceptability of the risk or in any way materially affect the hazard; also that notice was given of the sickness through the agent of appellant. Rejoinders and surrejoinders were filed. The questions and answers in the applicátion referred to in the pleadings were as follows: “25. Are you now affected with any form of bodily or mental disease, disorder, infirmity or impairment?” Answered by appellee “No.” “27. Have you within the last five years had medical or surgical advice or treatment or any departures from good health?” Answered by appellee “No.” The policy provided for benefits practically as set forth in the declaration. It also provided that in consideration of the statements in the application and the payment of the premium, the appellant insured appellee against results of sickness or disease contracted while policy was in force; further provided that insurance did not cover any disease resulting from or the sequel to any disease contracted or infirmity existing prior to the date of the policy; also provided that application was attached to and made part of policy, and that policy was issued subject to provision that if any of the statements or answers in the application were false or made with intent to deceive, or if they materially affected the acceptance of the risk or the hazard assumed by appellant, policy should be void.

Appellee testified he was working in a grocery store at the time the policy was issued but quit the latter part of July, 1929. He then worked in a restaurant until the latter part of August. He then went to work for a candy company but quit in a short time because he could not walk and carry trays on account of his leg and arm. After that he only worked at odd jobs up until January, 1930, at which time he was compelled to cease doing any kind of labor; that prior to the issuance of the policy in question he was examined for a life insurance policy and was in perfect health. The only medical testimony offered on behalf of appellee was that of Dr. Easley who examined appellee in February, 1930, and found a paralysis of the right leg and arm.

The evidence on the part of appellant shows that Dr. Kaeser of Highland, Illinois, on December 4, 1922, treated and examined appellee for a deformity of the spine and found that he was suffering from a curvature of the spine. The history given him was that he had been suffering with this curvature for some time. Afterwards on August 23, 1928, he made an X-ray of the sinus for appellee and treated him later for headaches and pain along the spine. On July 12, 1929, the doctor made a clinical examination of appellee and found a curvature of the spine and gave him treatment at that time. In the doctor’s opinion the headaches were caused by the curvature of the spine and that paralysis was caused by pressure of the spine on fluids as they leave the spinal column.

Dr. Herman of Highland testified that he treated appellee on August 19, 1928, for complaints which had dated back three months.

Dr. H. D. Cartwell, who had known appellee for about 20 years, testified that he took an X-ray picture of appellee’s spine and neck sometime between 1921 and 1924, and found a curvature of his neck, a little twist; also that he noticed appellee around Greenville at various times and noticed the twist of appellee’s head to the left and one shoulder was carried a little higher than the other; that appellee consulted him in June or July, 1929, complaining of severe headaches, for which the doctor treated him several times and advised him to consult some specialist.

Dr. A. M. Keith of Greenville testified that he treated appellee in October, 1929, for a curvature of the spine; that he found quite a marked curvature of the spine and appellee was complaining of his arm and legs, and that in his opinion there was a connection between the condition of appellee’s spine and the condition of his arm and leg when he came to the doctor for treatment in October, 1929. Appellee on cross-examination admitted that he knew there was a slight curvature of his spine and that he had consulted Dr. Kaeser and Dr. Herman for headaches prior, to June, 1929.

In Hancoch v. National Council of Knights and Ladies of Security, 303 Ill. 66, it was said: “Whether a representation is material is determined by the question whether reasonably careful and intelligent men would have regarded the fact stated as substantially increasing the chances of the event insured against, so as to cause a rejection of the application or different conditions. That the representations in this case as to either of the parents of Patrick Foley having been afflicted with consumption and as to his having an habitual cough met the test and were material would necessarily be agreed to by everybody. ... A misrepresentation is a statement of something as a fact which is untrue and material to the risk, and which the insured states, knowing it to be untrue, in an attempt to deceive, or which he states positively is true without knowing it to be true and which has a tendency to mislead.” In Dodson v. Loaleen Mut. Benefit Ass’n, 247 Ill. App. 283, it was held that a representation by an applicant for life insurance that he had never had tuberculosis is material. In Metropolitan Life Ins. Co. v. Moravec, 214 Ill. 186, it was held that the statement in an application that the assured had never had heart disease was a material representation, and if false would avoid the policy.

The policy in this case was issued without a medical examination and in reliance upon the truth of the answers in the application for insurance. The answers to questions 25 and 27, noted above, were not true, and were answered in such a manner as to become material misrepresentations that affected the risk such as would avoid the policy.

For the reasons stated the judgment of the trial court is reversed.

Reversed.

The clerk will insert in the judgment the following: “The Court finds that because of material misrepresentations made by Appellee in his application for insurance he cannot recover on the policy sued upon in this case.”


author: Mr. Presiding Justice McSurely

text:
    The People of the State of Illinois ex rel. Mario Pollastrini, Appellee, v. Emmett Whealan et al., Appellants.
    Gen. No. 36,204.

      Opinion filed February 6, 1933.
    John A. Swanson, State’s Attorney, John E. Pedderson and Louis H. G-eiman, Assistant State’s Attorneys, for appellants; Hayden N. Bell, of counsel.
    Victor Frohlich, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Petitioner, a deputy bailiff of Cook county, under the sheriff, seeks by mandamus to have the defendants, who are Cook county officials, certify and issue vouchers for his salary for the first half of September, 1931, at the rate of $180 monthly, and also for the period from December 1, 1931, to March 13, 1932, at the rate of $180 per month. Defendants filed an answer, and petitioner a replication. Evidence was heard, after which the court rendered a decision in favor of the petitioner and awarded the writ.

The question presented is whether the county board of Cook county, after it has made the appropriation for the salary of a county employee, may, during the period covered by the appropriation, change the rate of his compensation. Judge Thomas Taylor, who heard the case, rendered an oral opinion which is in the record and which we shall follow.

Under the Constitution, Article 10, section 9, the number of the deputies and assistants of the county officers shall be determined by rule of the circuit court, and their compensation shall be determined by the county board. The number so fixed by the circuit court cannot be changed by the county commissioners. The number being fixed, each head of the department is, alone, entitled to employ his deputies and assistants. The county board has nothing whatever to do with their actual employment or discharge; its only function is to fix their compensation. In determining what they shall be paid the county board has a financial report prepared, and from that a budget, and then a final formal appropriation is made which is published and in which is set forth in detail the compensation to be paid to each employee.

The department head, in this particular case the sheriff, after receiving from the comptroller a printed form, fills in the name of each deputy and assistant, the date and wages as fixed in the appropriation made, and the daily time and services rendered. He signs this under oath or otherwise as a pay roll and it is then transmitted to the county comptroller. The amount due each employee is thus on the books and in the officially recorded proceedings of the county board, in the hands of the county comptroller, and the amount admittedly due each employee is thus shown as an ascertained, liquidated and admitted sum, due at a particular time, for specific services to a particular person, by name, and all that remains to be done to consummate actual payment to the employee are a few simple administrative acts, which do not call for judgment or discretion on the part of the county comptroller, the county treasurer, or any other county official.

These acts are, the county comptroller prepares a paper which is an identification slip and also a receipt for salary, to be signed by the employee; he then prepares an appropriate warrant or check on the county treasurer which is given to the employee upon his signing the identification slip and receipt; the employee then presents this to the county treasurer who pays the same.

The financial report prepared by the county board, and the budget and the appropriation for the fiscal year beginning the first Monday in December, 1930, were made as provided by statute, Cahill’s St. ch. 34, ¶ 66 (6). In the appropriation bill it is provided:

“4. That the salaries or rates of compensation of all officers and employees of the County as hereinafter named, when not otherwise provided by law, shall be in accordance with the salaries and rates of compensation of the offices and places of employment as fixed in the resolutions adopted by the Board of County Commissioners prior to the adoption of this annual appropriation bill and shall not be changed during the year for which the appropriation is made.” This included a provision for the payment of deputy bailiffs in the sheriff’s office at the rate of $180 per month.

The county comptroller made out and sent to the sheriff a document entitled “Payroll Covering Services Rendered,” showing the names, among others, of 47 deputy bailiffs, including specifically the name of petitioner, and the amount due him on September 15, 1931, namely, $90; this was approved and signed as a correct pay roll by the chief deputy sheriff and was transmitted to the county comptroller. The evidence shows that petitioner has made a demand upon the county comptroller to issue the usual identification slip and receipt for salary for said half month, and a warrant or check upon the county treasurer; this demand has been refused and petitioner’s salary for the half of September, 1931, has not been paid to him.

The defendants base their refusal to pay petitioner upon a resolution adopted by the county board June 29, 1931. This resolution refers to the present economic depression and the serious increases in tax delinquencies and states that this requires definite action on the part of all public officials in the way of retrenchment. It therefore proposed to repeal all prior resolutions authorizing vacations and other leaves of absence with pay, and the heads of the various county offices were requested and directed to make arrangements whereby “all employees and officers, including all elected officials, shall each take an enforced vacation without pay of not less than two weeks.” It further directed:

“that the heads of the departments prepare and submit to the county board the semi-monthly payroll for the first half of September, certifying to the periods of enforced vacations without pay of all officers and employees and all such payroll deductions for enforced vacations without pay of all officers and employees and all such payroll deductions for enforced vacations shall be made in all of the offices, departments and institutions on such semi-monthly payroll record.

“that all County offices, departments and institutions in preparing all future payrolls shall report the periods of vacation without pay of all officers and employees, and the County Comptroller and the Civil Service Commission in checking' the payrolls of the various offices, departments and institutions shall keep a record of the vacation periods without pay, of the various officers and employees and the Comptroller shall withhold certification to the salary of any officer or employee, nor shall any payment be made or allowed by the County Treasurer where the vacation without pay of any officer or employee during this fiscal year is less than that provided for under this resolution.

“that copies of this resolution shall be sent to the heads of each of the County Offices, departments and institutions for their guidance in arranging and designating vacation periods without pay to all officers and employees and to the Civil Service Commission, the County Comptroller and County Treasurer for fiscal and payroll control in accordance with the provisions of this resolution.”

As we have heretofore said, the county board has no authority or power to employ or discharge any employees in the offices of the county under consideration. Neither has it any authority to order the heads of the various county offices to make arrangements whereby employees shall take an enforced vacation without pay.

It is not seriously contended that the county board has any authority over the rate of compensation or vacations of the “elected officials,” such as the superior and circuit court judges and elected clerks, sheriff, treasurer and recorder, or any officer whose compensation is fixed by statute. The compensation of the judges of the superior and circuit courts cannot be changed during their term of office. Section 25, Article 6, Constitution. People v. Sweitzer, 280 Ill. 436, held that it was beyond the power of the legislature to increase or diminish these salaries during the term of office, for otherwise there would be “a suspicion of such a thing as coercion by reducing salaries or a reciprocal interchange of favors by increasing salaries.” If the legislature cannot do this, certainly no such power is or should be in the county board, which is a frequent litigant and has many other significant contacts with the courts. Sec. 10, Article 10, provides that “the compensation of no officer shall be increased or diminished during his term of office.”

Cahill’s St. ch. 34, ¶ 66 (9), provides that “The salaries or rate of compensation of all officers and employees of said county, when not otherwise provided by law, shall be fixed by the board of commissioners and shall be fixed prior to the adoption of the annual appropriation, and shall not be changed during the year for which the appropriation is made. ’ ’ The county appropriation bill also contained a provision that the salaries and rates of compensation of the employees shall not be changed during the year for which the appropriation is made. It follows, therefore, that the resolution of the county board adopted June 29, 1931, in so far as it attempted to change the compensation of the county officers and employees, was invalid. As it is shown that petitioner performed services for the county during the first two weeks of September, 1931, for which he has not been paid, he is entitled to the writ of mandamus in this respect.

In People v. Stevenson, 272 Ill. 215, it was held that ‘ ‘ The issuance, signing or countersigning of a warrant upon the proper fund may be compelled by mandamus where the claim has been duly liquidated, audited and allowed or where it clearly appears that the claim is properly due and payable.” In People v. County of Cook, 274 Ill. 158, it was held that mandamus would lie against a municipal corporation to enforce the payment of a claim ascertained to be due, such as the salaries of officers fixed by law.

The same considerations apply to the claim of petitioner for compensation at the rate of $180 a month for the period from December 1, 1931, to March 13, 1932. He was employed in the sheriff’s office continuously during this time and was certified upon the pay rolls for this time at a salary of $180 a month.

By statute, Cahill’s St. ch. 34, ¶ 66 (6), it is provided that:

‘ ‘ Said board of commissioners shall, within the first quarter of each fiscal year adopt a resolution, to be termed the annual appropriations bill, in and by which resolution said board shall appropriate such sums of money as may be necessary to defray all necessary expenses and liabilities of Cook County, to be by said County paid or incurred during and until the time of the adoption of the next annual appropriation bill under this section.” That “such appropriation bill shall not take effect until after it shall have been once published in a newspaper published in Chicago”; and (Cahill’s St. ch. 34, ¶ 66 [9]) “the salaries or rate of compensation of all officers and employees of said county, when not otherwise provided by law, shall be fixed by the board of commissioners and shall be fixed prior to the adoption of the annual appropriation, and shall not be changed during the year for which the appropriation is made.”

It follows, as a matter of law, that the reduction to the extent of 15 per cent in the salary of the petitioner as provided in the appropriation of March 5, 1932, and published on March 13, 1932, took effect as to salaries from that time on, and did not relate back; and that, therefore, the petitioner was entitled to $180 per month from December 1, 1931, until the appropriation bill of 1932 became effective on March 13, 1932. There is therefore due to the petitioner a balance of $618, being the amount of his salary at the rate of $180' a month for that time. All that remains to be done on the part of the defendants is merely the administrative acts involved in issuing the appropriate vouchers and warrants. “The above seems to be consonant with that which is reasonable. To decide otherwise would be to injure public employees by arbitrary ex post facto conduct upon the part of the employer; to obtain service without compensation. ’ ’ (Judge Taylor’s opinion.) Respondents make no argument against this view.

The purposes of the county board as set forth in the preamble to the resolution of June 29, 1931, may be highly commendable, but this would not justify actions contrary to law. The board cannot usurp functions which legally it has no power to perform.

Defendants assert in this court that the county of Cook is a necessary party to any proceeding affecting the finances or affairs of the county. The petitioner is not asking that the county of Cook perforin any functions. These have already been performed by the passage of the annual appropriation bill fixing the salaries.

In addition to the power to fix the compensation of county employees, subject to the conditions just stated, the county board has powers relating to orders and the purchase of supplies, material, equipment, and like matters. It was the purchase of supplies that was under consideration in Kreeger v. Zender, 332 Ill. 519. In such matters courts will not interfere in the management of the county affairs where such acts are done under the legislative and discretionary powers of the board. In Fitzgerald v. Harms, 92 Ill. 372, quoted at length in defendants’ brief,,the court was considering the construction of a county courthouse. The opinion said the courts were powerless to interfere with the conduct of the commissioners “so long as they keep within their jurisdiction.” By the resolution above mentioned the board attempted to control matters which were beyond, its jurisdiction.

No authority is cited which supports the contention that the burden is on the petitioner to show that the county treasurer has in his hands sufficient funds to pay the amount due him for salary. Counsel for defendants erroneously assume that the petitioner is requesting some action by the county board. We'repeat, the decree simply orders the defendants to sign vouchers and issue warrants payable to the petitioner in the amounts set forth in the decree. These are purely administrative acts.

The reasons moving the trial court to his conclusion can hardly be questioned. The decree-was proper and is affirmed.

Affirmed,.

Hatchett and O’Corra or, JJ., concur.


text:
    Katherine A. Murtaugh, Appellee, v. Chicago Motor Coach Company, Appellant.
    Gen. No. 36,281.
    Opinion filed February 6, 1933.
    Walter N. Murray and John E. Kehoe, for appellant.
    Lewis C. Murtaugh, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit claiming damages caused by the negligent operation of one of defendant’s coaches in running into and destroying trees near an apartment building in Chicago owned by her. Upon trial by the court she had judgment for $200, from which defendant appeals.

Plaintiff testified as to her ownership of the apartment building at the corner of Marshfield avenue and Jonquil terrace; her building extends along Jonquil terrace about 125 feet, with a southern exposure; in the parkway between the sidewalk and the curb are several very large trees- — Lombardy poplars, with branches extending about six feet over the roof of plaintiff’s building. Plaintiff saw one of the busses of defendant going west on Jonquil terrace turn up over the curb and at great speed run into one of the large trees in the parkway, bending it over and breaking off the top half, which contained all the branches; this fell against the next tree to the west, knocking off all its branches on the side. The defendant, after the accident, removed its coach but did not remove the branches and trunk of the tree which were left hanging. Plaintiff testified that the destruction of the tree left an unsightly gap and the tenants have complained about the appearance; that the tree when standing was a valuable protection from the hot midday sun to the windows exposed on the south on Jonquil terrace; the tree that was completely destroyed shaded the windows of the dining rooms of three of the apartments; the trees were not on plaintiff’s property but were in the parkway. Another witness testified that the trees afforded “a park-like outlook to the rooms adjoining,” and gave shade and protection to the south side of the building. It took two men two half days to remove the debris; plaintiff’s husband and another man did the work.

Defendant says that the fee of public streets is in the city and that shade trees in such streets are the property of the municipality, and therefore an abutting property owner has no right of action for damages to the trees. There is no doubt but that between the municipality and the abutting property owner the municipality has the control of the street, with any trees therein. Such cases are Baker v. Town of Normal, 81 Ill. 108, and City of Mt. Carmel v. Shaw, 155 Ill. 37. But this is not a question between the city and the owner of the lot adjoining the street. Plaintiff is complaining of the negligence of the Motor Coach Company, a third party. Such a case was under consideration in Rockford Gas Light & Coke Co. v. Ernst, 68 Ill. App. 300, where the plaintiff recovered damages for injuries to trees growing upon the street fronting her lot caused by escaping* gas from a break in the gas company’s street main. The court said:

“We do not agree with counsel for appellant, that appellee could not recover damages for the destruction of the two elm trees, planted by her nineteen years before, in the street immediately in front of her premises. While it is true she could have no property in, or control of, the trees as against the municipality, yet as against third persons negligently injuring or destroying them, she may recover.”

In Donahue v. Keystone Gas Co., 181 N. Y. 313, there was injury to trees through escaping gas from de-. fendant’s pipes in the soil. It was claimed that plaintiff, having no legal interest in the trees because he did not even own the land upon which they stood, could not maintain an action against the gas company for damages. The court considers the question at considerable length. It held that the gas company was liable, and in the opinion used these pertinent words:

“The shade trees of our cities and villages are the pride of the people. On many streets they add largely to the commercial value of land. Is the law so tender toward wrongdoers as to virtually say to them, ‘If you cut down every graceful elm or beautiful maple standing in the streets of any city and can adjust matters with the authorities, you are safe, for no individual can call you to account, even if twenty per cent is taken from the value of his property?’ The announcement of such a rule, directly or indirectly, would spread consternation throughout the state.”

In Skinner v. Buchanan, 101 Vt. 159, the trees were cut down by Buchanan, tree warden of the village. The court held that the warden in so- doing was not acting within the scope of his official duties and authority, and that plaintiff had a right to recover damages, saying in the opinion:

“Why allow damages for the obstruction of light and air and not for the destruction of ornamental shade trees ? Or, why allow damages for unnecessary interference with lateral support, which usually consists of merely removing the soil that supports abutting soil, and withhold them for the unnecessary removal of trees which grow above the soil, and enhance the value of abutting property perhaps as much as does its lateral support?”

In Norman Milling & Grain Co. v. Bethurem, 41 Okla. 735, after considering a long list of reported decisions on the instant point, the court concluded that:

“An abutting lot owner, even though the fee of the street and general ownership of the trees be in the city, has, without the aid of statute, an equitable easement, and therefore a special ownership, in the trees which will enable him to maintain an action for wrongful injury thereto which depreciates the value of his lot. ’ ’ To the same effect is Robbins v. Hartford City Gas Light Co., 82 Conn. 394. See also 13 R. C. L. 209.

These cases express our opinion upon the point presented. In Aldis v. Union Elevated R. Co., 203 Ill. 567, it was held that the property owners adjacent to a street retain the right of action and the right to enjoy “the air and light which pass over said streets, the view and the comfortable and safe enjoyment of their property.” If these rights are destroyed, thereby damaging the adjacent property, it would seem too clear for argument that the owner may recover compensation for such damages.

The testimony on behalf of plaintiff clearly shows that the destruction of the trees which afforded shade to her property caused damages for which she may recover. This being a fourth class case, no pleadings were necessary. However, plaintiff alleged and proved special damages.

The Chicago ordinance quoted by defendant, Article 6, section 793, fixes only the rights between the municipality and a gas company whose leaking mains, damage' or kill trees in the streets. It does not and could not affect the rights of the adjacent property owner to recover damages to his special easement.

The last point made by defendant is that the amount assessed as damages is excessive. The witness testifying on behalf of plaintiff gave his opinion that the replacement value of such a tree was from $375 to $400. Defendant introduced a witness who said the cost of the replacement would amount to about $72. While there might be some question as to whether this was the proper method of proving damages, yet both plaintiff and defendant followed this method without objection on either side. The finding of the trial court, assessing the damages at $200, was within the scope of the testimony.

We see no reason to disturb the judgment and it is affirmed.

Affirmed.

Hatchett and O ’Connor, JJ., concur.


author: Mr. Presiding Justice MoSurely

text:
    Chicago Bank of Commerce, Appellee, v. J. L. Kraft, Appellant.
    Gen. No. 36,299.

      Opinion filed February 6, 1933.
    Nicholson, Crandall & Snyder,-for appellant; John I1. Chadwell and Russell Greenacre, of counsel.
    Francis E. Matthews, for appellee; Joseph R. Harmon and Clement F. Springer, of counsel.
   Mr. Presiding Justice MoSurely

delivered the opinion of the court.

January 2, 1930, defendant made his promissory note to the order of the Old Dearborn State Bank for $11,428, due January 2, 1932. It contained a power of attorney to confess judgment, which was exercised February 4, 1932, when judgment by confession was entered against defendant for $12,413.23. Motion was made to vacate and set aside the judgment, supported by an amended affidavit; the court denied this motion and defendant appeals from this • order. Defendant asserts here that his amended affidavit shows that there was no consideration for the note and that the plaintiff, Chicago Bank of Commerce, a corporation, is not a holder in due course.

Defendant’s amended affidavit alleged that the Old Dearborn State Bank, the payee in the note, did not part with any consideration when it received the note; that the defendant received no consideration on account of the execution and delivery of the note; R. A. Drum, then president of the payee bank, told defendant, who was a stockholder, that the bank had incurred a loss of $17,142 in connection with liquidating a certain indebtedness owed to it by one Coambs; that Drum said that he desired to donate to said bank two-sixths of said deficit, or the sum of $5,714, and Drum requested the defendant to execute and deliver his note to the bank for that amount, and Drum would give defendant his note for this amount. Defendant agreed to this. The affidavit further states that thereafter Drum suggested to defendant that defendant also donate to the bank two-sixths of the aforesaid loss or deficit, and that in making the contributions of Drum and of defendant, each in amount equal to two-sixths of the deficit, the defendant should execute and deliver to the bank a note for four-sixths of said deficit, or for $11,428; that voluntarily and without any consideration, but in compliance with Drum’s request, defendant executed and delivered the note for this amount, upon which judgment was confessed in this case, and Drum delivered to defendant his note for $5,714; that at the time he, defendant, was a stockholder of the bank and that no statement or representation was made to him that the bank was or might become insolvent by reason of sustaining the aforesaid loss upon the Coambs transaction, and the defendant gave no thought to any such possibilities, and that no representations were made to him as to the effect of his said judgment note upon the value of his shares of stock in the bank; that the only reason for signing the note was that defendant thereby made a contribution to the bank.

As touching defendant’s claim that plaintiff was not a holder in due course of the note, the affidavit alleges that on or about March 28, 1931, plaintiff acquired all the assets and assumed the deposit liabilities and other liabilities of the Old Dearborn State Bank; that the Old Dearborn State Bank executed and delivered to plaintiff its note in the amount of the deposit liabilities and certain other liabilities, which note was for' the principal sum of $2,468,529.79, payable 18 months after date, and that all of the assets of the Old Dearborn State Bank were pledged as collateral for the aforesaid note, and included in the collateral was the note made by defendant upon which judgment was confessed in this case; that since that time plaintiff has continued to carry on the business theretofore conducted by said payee bank; at the time plaintiff acquired defendant’s note it also acquired possession of, and its officers and agents had access to and took possession of, all files, books and records of said payee bank, including letters, correspondence and documents, showing the facts of the transactions between defendant and said payee in connection with the note upon which judgment was confessed.

We shall first consider this last point. As the note was due January 2, 1932, and was taken by plaintiff as collateral on March 28, 1931, it became the holder before maturity. Paragraph 79 of the Negotiable Instruments Act, chapter 98, Illinois Stats. (Cahill) provides that every holder is deemed prima facie to be a holder in due course. Paragraph 72 defines a holder in due course as one who has taken the instrument under the following conditions:

(1) That the instrument is complete and regular upon its face.

(2) That he became the holder of it before it was overdue, and without notice that it has been previously dishonored, if such was the fact.

(3) That he took it in good faith and for value.

(4) That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.

Defendant concedes that the first three conditions exist, but argues the irregularity of plaintiff’s title by virtue of the fourth condition, for the reason that where one bank takes over and assumes liabilities of another bank, the bank taking over such assets is not a holder in due course of negotiable instruments included in such assets. Defendant cites in support of this proposition National Bank of Rochester v. Erion-Haines Realty Co., 123 N. Y. Misc. 873. Here a bank was organized for the purpose of taking over the assets of two national banks and by contract assumed certain liabilities. The New York court held that the transaction was controlled by provisions of the National Bank Act, which provides that upon consolidation of two national banks, the new bank owns the property of the old bank in the same manner and to the same extent as it was held by the old bank. The plaintiff bank in the present case is not governed by the provisions of the National Bank Act. Baach v. Bank of Pocahontas, 157 Va. 274, is not applicable, as, under the contract whereby the plaintiff bank acquired the assets of another bank, it was provided that the assignee bank should have discretion in collecting the assets of the assignor bank, but if the assignor bank should demand, the assignee bank must take such action as the assignor bank might direct with reference to the collection of assets. Counsel for plaintiff says the decision in this case has been criticised in 80 University of Pennsylvania Law Review, 447. In Bank of Tallassee v. Jordan, 200 Ala. 182, the holding bank was under contract to render an accounting in one year and a final accounting in two years, of its efforts to collect the assets and bills of the other bank. The decision in this case has also been criticised in Brannan on Negotiable Instruments, 4th ed., page 374. A similar state of facts is found in Farmers’ & Merchants’ State Bank & Trust Co. v. Cole (Tex. Civ. App.), 220 S. W. 354, where the holding bank was under contract to deliver to the assignor bank at the end of two years all its uncollected assets. In all these cases the holding bank was held to be the agent or trustee to collect for the assignor bank. Fehr v. Campbell, 288 Pa. 549, held that a person who takes paper, payable to a corporation, from one of its officers in satisfaction of the officer’s personal indebtedness, is not a holder in due course because of his bad faith in taking such paper under such circumstances. In Drumm Const. Co. v. Forbes, 305 Ill. 303, the court said:

“The act (The Negotiable Instruments Law) in using the term ‘holder in due course’ used it as an equivalent for the old expression, ‘bona fide holder for value without notice.’ (8 Corpus Juris, 464.) The act, in so far as it defines a holder in due course, does not change the common law rule as to who is a bona fide holder, except, perhaps, by eliminating the requirement that the transfer must be in the regular course of business. (8 Corpus Juris 465.)”

In Sturdivant Bank v. Houck (Mo. App.), 47 S. W. (2d) 135, the court, considering a contention almost identical with that made by counsel for defendant, said:

“With respect to the suggestion" of defendant that the transfer of the note in suit, along with all the other assets of the bank,’ was not a transfer in the usual course of business, it will suffice to say that section 2680, R. S. 1929 (The Negotiable Instruments Law), defining a holder in due course eliminates this requirement of the common law.”. In that case the court discussed the relation between the Cape Exchange Bank and the Sturdivant Bank, which took over its assets and liabilities, and held that the latter bank was not merely a trustee or liquidating agent, but that it was obligated to pay the liabilities of the Cape Exchange Bank without regard to the amount it might realize from the assets transferred to it. In Trustees of American Bank of Orange v. McComb, 105 Va. 473, the American Bank transferred all of its property to the plaintiff trustees. Defendant claimed that plaintiffs were not holders in due course as they did not acquire the paper by indorsement and delivery. The Supreme Court of Virginia held that the trustees were holders in due course, notwithstanding they did not acquire the note in the usual course of business. It should be noted that in the instant case the note was regularly indorsed by the Old Dearborn State Bank to the order of the plaintiff bank.

Defendant’s affidavit precludes the idea that plaintiff bank in taking the note in question was merely the trustee or agent of the Old Dearborn State Bank. Plaintiff took the note as collateral to the note of the Old Dearborn State Bank. As stated in 8 Corpus Juris, 471, under the Negotiable Instruments Act, a holder may be a holder in due course notwithstanding he has not received the paper in the ordinary course of business, yet, where one receives paper as collateral to another note, such collateral is received in the ordinary course of business. This applies to the instant case, and we are of the opinion that the plaintiff was the holder of the note in question in due course.

But defendant asserts that the plaintiff took the note with knowledge of0 the fact that defendant had received no consideration for it, and hence plaintiff took with notice of an infirmity in the instrument. Section 56 of the Negotiable Instruments Act, Cahill’s St. ch. 98, ¶ 76, provides that to constitute notice of an infirmity in the instrument “the person to whom it is negotiated must have had actual knowledge of the infirmity ... of knowledge of such facts that his action in taking the instrument amounted to bad faith. ’ ’ Defendant says that its amended affidavit alleged that when plaintiff acquired possession of the note in question it took possession of the records, papers, and letters of the Old Dearborn State Bank, which records included correspondence and documents with respect to the aforesaid note showing the facts of the transactions out of which the note arose. The affidavit does not state that plaintiff had actual knowledge of any infirmity, but defendant argues that plaintiff should or could have known of the circumstances, and therefore it was guilty of bad faith in taking the note. The affidavit merely asserts that the letters and documents showed “the facts of the transactions between the Old Dearborn State Bank and defendant as set out herein-above,” but does not show what were the facts contained in such letters and documents. In Crossman v. Wohlleben, 90 Ill. 537, the court said, in applications to set aside judgments entered by default or entered in ex parte proceedings, affidavits in support of said applications are to be construed most strongly against the party making the application. In Duddleston v. Eckhart, 134 Ill. App. 656, it was held that such affidavits must set forth “the particular evidentiary facts . . . substantially as they should be proven on a trial. ’ ’ In many other cases it has been held that the statement of mere conclusions in such affidavits is not sufficientthat they should set forth the facts from which the court can draw the conclusions. Carpenter v. White, 43 Ill. App. 448; Schultz v. Plankinton Bank, 40 Ill. App. 462, affirmed in 141 Ill. 116.

From the allegations of defendant’s affidavit setting forth what are said to be the facts of the transaction, it appears that the alleged agreements between president Drum of the Old Dearborn State Bank and the defendant with reference to the notes were oral agreements. It is a reasonable inference that they would not be shown by any letters, correspondence, or documents.

It should be noted that the affidavit does not assert that any officer read or had knowledge of any documents showing the facts of the transaction, but merely that they had “access to” and had “taken possession of” such documents. This is not sufficient. In Comstock v. Hannah, 76 Ill. 530, it was said of a party who takes commercial paper before due, that:

“Suspicion of defect of title, or the knowledge of circumstances which would excite such suspicion in the mind of a prudent man, or gross negligence on the part of the taker, at the time of the transfer, will not defeat his title. That result can only be produced by bad faith on his part.” To the same effect was the holding in Corn Belt Bank of Bloomington v. Forman, 264 Ill. App. 589, and cases there cited. See also Mt. Vernon Nat. Bank v. Kelling-Karel Co., 189 Ill. App. 375; Biegler v. Merchants’ Loan & Trust Co., 164 Ill. 197; Zollman v. Jackson Trust & Savings Bank, 238 Ill. 290 ; also Aldrich v. Peckham, 74 N. J. L. 711. Applying the rule stated in these cases, it follows that when plaintiff acquired defendant’s note it became a holder in good faith, for value, without notice of any infirmities.

We are also of the opinion that the circumstances disclosed by the affidavit show that the note was executed and delivered for an adequate consideration. We shall discuss this phase only briefly.

“Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party thereto for value.” Chapter 98, ¶ 44, Illinois Statutes (Cahill). This is a presumption of fact and cannot be overthrown except by proof of facts warranting the inference of no consideration of any kind. American Nat. Bank of Mt. Carmel v. Woolard, 342 Ill. 148.

Defendant’s affidavit says that Drum requested him to execute his note to Old Dearborn State Bank for $11,428, and that he, Drum, in turn would give defendant his note for $5,417, and that defendant did so “in compliance with said requests.” Obviously, Drum and defendant gave mutual promises, that if one would give $5,417 on account of -the deficit arising from the Coambs transaction, the other would do the same. Defendant has received Drum’s note for. the amount Drum said he would contribute, and ‘1 said note is still held by defendant.” It is almost uniformly held that a mutual promise to contribute towards a common cause or undertaking is a sufficient consideration for a promise. In Congregational Society v. Perry, 6 N. H. 164, the court said, when several agree to a common object which they wish to accomplish, the promise of each is a good consideration for the promises of the other. Utah Nat. Bank v. Nelson, 38 Utah 169, involved contribution of two bank officers to the bank in order to prevent a run — facts very similar to those in the instant case. It was held, after discussing many cases, that a mutual promise to contribute to a common undertaking is a sufficient consideration for a promise. See also Hostetter v. Hollinger, 117 Pa. 606; Underwood v. Waldron, 12 Mich. 73; Rothenberger v. Glick, 22 Ind. App. 288.

Both Drum, the president of the Old Dearborn State Bank, and the defendant were stockholders. Defendant in his affidavit asserts that in executing the note he gave no thought to this, and that no representations were made to him as to the effect of said note upon the value of his shares of stock. Whatever may have been in defendant’s mind at the time, it is manifest that by his contribution toward the Coambs deficit he did in fact add to the value of his stock. In section 21, Williston on Contracts, volume 1, the author says that the common law does not require any positive intention to create a legal obligation as an element of contract ; that the law and not the intention of the parties fixes the requirements of a legal obligation. Cases cited by defendant, like Turner v. Porter, 264 Ill. App. 15, are not in point. There the maker of the paper was an entire stranger to the transaction. Here both Drum and defendant were interested as stockholders in reducing the loss arising out of the Coambs transaction.

Defendant was personally connected with this transaction. The entire indebtedness of Coambs to the bank was $87,998.93. From the affidavit it appears that a note of defendant for $71,000 was applied against this indebtedness. It is a fair presumption that this note was part or all of the personal property conveyed by Coambs to the bank in consideration of the cancellation of his indebtedness. The balance owed by Coambs which the bank agreed to discharge was over $17,000. The affidavit is meager as to the facts of this Coambs transaction, but construing it most strongly against the defendant, it may be reasonably inferred that this balance of indebtedness of Coambs which the bank agreed to release was a sufficient consideration for defendant’s note, which was given to apply on account of said deficit. Chapter 98, ¶ 45, Illinois Statutes (Cahill) provides that “An antecedent or pre-existing claim . . . constitutes value where an instrument is taken either in satisfaction therefor or as security therefor . . . .” 80 A. L. R. 676. In Elgin Nat. Bank v. Goecke, 295 Ill. 403, it was held that one who has taken a negotiable note before maturity as collateral security for a pre-existing debt is deemed a holder for a vain-able consideration. See also Brannan on Negotiable Instruments, 358, which likewise states this to be the law. Neal v. Wilson, 213 Mass. 336, is also in point. It follows from these considerations that when defendant gave his note at the request of the president of the bank, to cover the balance due from Coambs, the pre-existing indebtedness of Coambs was a sufficient' consideration for the note.

To have discussed all the cases cited by respective counsel would have made this opinion much too long. After giving due consideration to all the points raised, we are of the opinion that the order of the trial court in denying defendant’s motion to vacate the judgment was proper and it is affirmed.

Affirmed.

Matchett and O’Connor, JJ., concur.


author: Mr. Presiding Justioe.McSurely

text:
    The People of the State of Illinois, Defendant in Error, v. John Davies, Plaintiff in Error.
    Gen. No. 36,421.

      Opinion filed February 6, 1933.
    Rehearing denied February 20, 1933.
    Samuel E. Barth and Elwyn E. Long, for plaintiff in error.
    Oscar E. Carlstrom, Attorney General, J. J. Neiger, Assistant Attorney General, and John A. Swanson, State’s Attorney, for defendant in error; Edward E. Wilson and Grenville Beardsley, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justioe.McSurely

delivered the opinion of the court.

Defendant was found guilty of removing marks of identification on an automatic pistol, contrary to the statute, chapter 38, Criminal Code, paragraph 141(2%) (Cahill) 1931, which says that, “Possession of any firearm upon- which any such mark shall have been changed, altered, removed, or obliterated, shall be prima facie evidence that the possessor has changed, altered, removed or obliterated the same.” The case was tried by the court, who fixed the punishment of the defendant at one year in the House of Correction and a $100 fine. Defendant took the case by writ of error directly to the Supreme Court, which has transferred the case to this court.

A large part of defendant’s brief is devoted to the argument that the section of the statute which defendant was charged with violating is unconstitutional. This question was not raised upon the trial. Furthermore, as the Supreme Court has transferred the case to us, we are precluded from considering the constitutional question.

Defendant presented a petition to suppress the evidence, which was denied by the trial court. Defendant argues that this ruling was erroneous. A Chicago police sergeant, Michael P. Naughton, with another police officer called at defendant’s home at about 10 o’clock on the morning of January 16, 1932, for the purpose of talking with him about another case in which defendant was involved; the officers went to the rear door of the second floor and Naughton rang the bell; defendant’s wife came to the door and Naughton talked with her. While the officers were standing on the rear porch they noticed through the window that defendant had an automatic pistol in his hand; he pointed it at the officers and ordered them to get off the porch; they said they were police officers, but the defendant replied, “I don’t give a damn who you are, you bastards, get down off the porch. ’ ’ Naughton then ordered defendant to open the door but he refused and he “cocked the trigger” and kept threatening the officers with the pistol, saying he would shoot them if they did not get off the porch; Naughton then took his police star in his hand and walked up to the window and held it against the window and again ordered defendant to open the door, which was refused; Naughton then said that he would return with a squad and take the defendant into custody, and within 10 minutes came back with two other police officers; Naughton rapped at the door and was admitted. Defendant was found in the kitchen without the pistol; Naughton asked him as to where the pistol was and defendant replied, “I will give you $25, forget about the pistol”; defendant then told his wife to get the gun; defendant’s sister had the gun in her bedroom and she handed it to Naughton; Naughton asked the defendant if this was the gun he had pointed at Naughton and defendant answered, “Yes.” The gun was loaded, the trigger and hammer were back ready to fire; it was a Colt 45-calibre automatic pistol; the manufacturer’s name and serial number had been erased.

Defendant testified that about six months before, while driving in a car, he saw a fellow whom he knew by name of Stork; defendant stopped his car and Stork asked him if he wanted to buy a pistol; defendant said he did and bought it for $15. Naughton testified that he did not threaten to put defendant under arrest until after he had threatened to shoot the officers with the pistol. The officers said they had no search warrant for the defendant, nor warrant for his arrest; that they were not calling upon him with the expectation of arresting him. Defendant testified that his wife and sister had been held up about two years before and that when he saw Naughton and his partner on the back porch he did not know who they were; that when he showed them the gun they both “flashed” stars and told him that they wanted to talk with him; defendant said that he had never made any changes or alterations on the gun since he had purchased it; he had been unemployed for about a year and a half before this time.

Defendant’s counsel argue that there was an unlawful entry into the home of the defendant and an unlawful search and seizure of the pistol, citing People v. Scalisi, 324 Ill. 131, and People v. McGurn, 341 Ill. 632. Both of these cases restate the well established rule that police officers have authority to make arrests without warrants in cases of misdemeanors involving breaches of the peace committed in the presence of the officers. When defendant pointed the loaded pistol at the officers, threatening to shoot them, and, as one witness says, “cocked the trigger,” defendant committed an assault with a deadly weapon, in violation of paragraph 37, chapter 38, Illinois Statutes (Cahill). The officers were thereupon justified in entering the premises and searching the defendant without a search warrant. People v. Kissane, 347 Ill. 385; People v. Caruso, 339 Ill. 258. Paragraph 681, chapter 38, Illinois Statutes (Cahill). Having seen the defendant commit the crime, the officers had the right to take possession of the pistol with which defendant had threatened them.

Defendant does not argue that he was not properly found guilty upon the evidence presented.

For the reasons indicated the judgment is affirmed.

Affirmed.

Matchett and O’Connor, J.J., concur.


author: Mr. Justice Matchett Mr. Justice O’CoinsroR

text:
    Rose M. Kagan and Central Republic Bank and Trust Company, Successor by Consolidation to Central Trust Company of Illinois, Appellants, v. Charles W. Gillett, Appellee.
    Gen. No. 36,076.

      O’Connor, J., dissenting in part.
    Opinion filed February 6, 1933.
    Rehearing denied February 21, 1933.
    Fisher, Boyden, Bell, Boyd & Marshall, for appellants ; Earl K. Schiek, of counsel.
    William Friedman, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

Plaintiffs brought an action in the municipal court on contract. . Their claim was based upon a sublease of certain premises in Chicago. This sublease was made a part of the statement of claim. It is dated December 9, 1915, and demised a term beginning February 1, 1916, and ending at noon January 31, 1926. By clause 18 of the sublease, which was in the form of a rider attached, the lessee was given the right, if not in default prior to the expiration of the demised term, to extend the lease for a further period of 10 years.

Plaintiffs claim (1) rent alleged to have become due as represented by a promissory note of defendant for the sum of $2,487.52, dated Chicago, Illinois, September 17, 1929, due 60 days after date; (2) other rent accruing under the covenants of the sublease after the beginning of the term as extended on January 31,1926; and (3) damages claimed to be due on account of defaults in the covenants to keep the premises in repair and to deliver the same at the end of the term in as good condition as received, less ordinary wear and tear. It is claimed that defendant is liable for all these defaults by reason of a guaranty executed by him on December 9, 1915.

By an affidavit of merits defendant denied all liability. There was a trial by the court and a finding for plaintiffs in the sum of $225, on which judgment was entered, from which judgment plaintiff’s appeal.

Neither findings of fact nor propositions of law were submitted. Defendant contends that for this reason no question of law reviewable by this court arises on the record. That contention could have been plausibly made at one time. Harrison v. National Bank of Monmouth, 207 Ill. 630. The question is now settled contrary to defendant’s contention in Pittsburgh, C., C. & St. L. Ry. Co. v. Chicago City Ry. Co., 300 Ill. 162. See also Central Trust Co. of Illinois v. Hagen, 249 Ill. App. 507; Bitzer v. Southern Surety Co., 245 Ill. App. 295.

The trial judge, however, made a statement of his views of the law as applied to the facts from which the theory upon which the case' was decided is apparent.

Defendant was held liable on the note, but payments made which (in the absence of specific directions by him) were applied by plaintiffs upon rent claimed to be due under the lease were by the trial judge credited upon the note, reducing the balance due thereon to the sum of $225, the amount for which judgment was entered.

It is apparent therefore that the court held that defendant was not liable upon his guaranty; that he was not liable on the covenants of the lease, and that neither by reason of the guaranty nor of the covenants was defendant liable for unpaid rent, for failure to keep the premises in repair, or for failure to 'deliver the same in the condition received, excepting ordinary wear and tear as provided by the covenants of the lease.

Upon this theory we must presume (since it was otherwise competent) the evidence of plaintiffs’ agent as to the computation of the amount due under the terms of the lease was stricken out and the tendered evidence of a competent architect produced as a witness by plaintiffs as to the condition of the premises at the termination of the lessee’s possession rejected.

As already stated, the sublease was dated December 9, 1915, and it demised a term beginning February 1,1916, and ending at noon, January 31,1926. On March 4, 1925, the Sher-Lak Hotel Company, which was then in possession, notified the lessors that it would exercise its option for the extension of the lease, and at the end of the stated term on January 31, 1926, it remained in possession. It continued in possession until April 13,1931, when the possession thereof was surrendered to and accepted by plaintiffs. Plaintiffs contend that under the covenants of the lease and by reason of the written guaranty by defendant, defendant is liable for the payment of the rent and the performance of other covenants in the lease not only prior to but after February 1, 1926, until possession was surrendered. Defendant contends that he is not liable; hence this controversy.

On the date of the execution of the sublease, December 9, 1915, defendant as a part of that transaction executed and delivered the following written guaranty, which was attached to the sublease:

“For Value Received, I hereby guarantee the payment of the rent and the performance of all and singular the agreements by the lessee, Johh Percy Baldwin, his heirs, legal representatives or assigns, to be kept or performed, according to the terms of the above rider and the Indenture of Lease to which it is attached, in manner and form as is in the said lease and in the said rider provided, and I do hereby waive any and all notice and any and all right to notice of default on the part of the said lessee, under the terms of the said rider and the said lease.”

Thereafter, on November 26, 1918, defendant became the assignee of the sublease, the sublessors consenting in writing, and in consideration thereof defendant assumed all the obligations of the sublease without limitation. Afterwards, with , the consent of the sublessors, defendant reassigned his interest as lessee to the Sher-Lak Hotel Co., and again in consideration of their consent he in writing guaranteed “the prompt performance ... of all the agreements, covenants and conditions on the part of the lessee in said lease mentioned.”

Defendant, however, contends that these obligations all ceased on January 31, 1926, at which time the demised term would have ended had it not been extended. There was no default in rent which accrued prior to that date, and he claims he is not liable for defaults which occurred thereafter either under the covenant to pay rent or repair or under other covenants of the sublease.

In brief defendant argues that his obligations as expressed in the guaranty should be construed strictissimi juris. He cites Miller v. Stuart, 9 Wheat. (22 U. S.) 680, which has been followed in a large number of Illinois cases. Reynolds v. Hall, 1 Scam. 35 (Rose’s Notes). He also cites Liverpool W. W. Co. v. Atkinson, 6 East. 507, and Lord Arlington v. Merrick, 2 Saund. 411. In all these cases the courts were called upon to construe obligations of persons who had become gratuitous sureties upon certain official bonds. Defendant, assuming that he is a gratuitous surety, argues that the rule of liability as stated in 50 Corpus Juris 78, and the cases there cited should be held applicable.

Plaintiffs contend that the occupancy of the lessee after January 31, 1926, was pursuant to an “extension” of the lease and not a “renewal” of the same. They distinguish between an “extension” and a “renewal” and there are authorities which recognize this distinction.

In Orton v. Noonan, 27 Wis. 272, the covenant in a lease “to extend the term of the lease for the term of 99 years, provided,” etc., was held to be a present demise of a future term. In Salisbury v. Hale, 29 Mass. (12 Pick.) 416, the suit was upon a guaranty which was under seal. The opinion of the. court by Shaw, C. J., was that where the covenant was to pay rent, etc., “for such further term as the lessee may hold the same,” the guarantor was liable.

In Ingram v. Foster 205 Ky. 57, a lease provided that the lessees should have “an option at the end of three years to lease said building for another term of three years.” The lessees gave written notice of the exercise of the option, being then, however, out of possession by reason of a fire which required the building to be repaired. The landlord refused to restore possession, and the lessees brought forcible detainer proceedings and recovered judgment. It was held upon appeal that the authorities recognized a distinction between an option to renew and a right to extend ; that the clause should be construed as granting the right to renew, but that since the lessees by giving-notice had complied with the only requirement which by decisions of that court distinguished an extension from a renewal, the option clause would be construed as if it had granted the right to extend instead of the right to renew.

In Stout v. Tobias, 27 Ohio App. 113, 160 N. E. 874, there was a provision in a lease that the tenant should have the “privilege of four additional years, $35 per month.” The tenant held over without notice. It was held that the landlord could not maintain an action for possession. In Shannon v. Jacobson, 262 Mass. 463, 160 N. E. 245, the lease demised a term for three years “with an option for renewal of said lease for five years more.” This was held to be an option for renewal, and the opinion of the court said that the meaning of that word in leases was settled in that State; that the word renewal “ex vi termini” imports the giving of a new lease like the old one, while an option for an extension did not require or contemplate the execution of a new lease but was a simple prolongation of the original lease for a further term.

In White v. Walker, 31 Ill. 422, a defendant guarantor was held to have been released and discharged by a new agreement which superseded the original lease, the court holding that it was error to reject evidence tending- to show this new agreement, although it was not under seal.

In Brewer v. Thorp, 35 Ala. 9, the lessor made a demise for one year with “the privilege to retain the same house, at the same rent yearly, for as many years as she may wish.” The guarantor of the lease was held not liable beyond the year, the tenant having exercised her privilege to hold over. In Kanouse v. Wise, 76 N. J. L. 423, a lease for a term of one year was given with the privilege “to renew” this lease upon the same1 terms and conditions. The liability of the guarantor was held to cease at the end of the year.

In Woods v. Doherty, 153 Mass. 558, there was a demise for three years, with the right to renew for a further term, and it was held that the guarantor was not liable for the renewed term.

In Cushing v. Cable, 48 Minn. 3, the lessee made an agreement for the use of two boilers for a term of four months and for two months longer if the lessee should “renew.” It was held that the guarantor was not liable for a longer term that six months. In Fasnacht v. Winkelman, 21 La. Ann. 727, a lease was given for one year with a privilege of “renewal” for five years, and it was held that a party who bound himself as surety for the lease, was not liable for the renewed term, unless it was-shown that he consented.

In Gadsden v. Quackenbush, 43 So. Car. Law (9 Rich.) 222, a guarantor guaranteed the faithful performance of the covenants of a lease which was for a term of one year. The tenant continued in possession without objection, failed to pay the rent, and the lessors sued the guarantor. The court held that the guarantor was not liable, saying:

“The circumstances imply consent of both the original parties to a renewal of the contract. The law implies from this subsequent conduct a new contract on like terms with the preceding. To this the guarantor was neither in fact, nor in law, a party. It was a new transaction, and a new credit was given outside, and beyond any previous stipulation, and the plaintiff can look alone to him with whom he dealt.”

In Jones & Brindisi, Inc. v. Breslaw, 250 N. Y. 147, 164 N. E. 887, the Court of Appeals of that State had occasion to consider a case very much like this one. In that case defendants upon the execution of a lease signed the following guaranty: “We hereby guarantee the payment of the rent as stipulated in above lease.” The lease demised the premises for a term of two years and four months and by another clause provided, “It is further understood and agreed by and between the parties hereto that six (6) months before the termination of the present lease, the Landlord will give the tenant the option of renewing the present lease for two (2) years upon the same terms and conditions and at the same rental. ’ ’ The tenants exercised their option, and upon their failure to pay the rent for the extended term, the landlord sued the guarantor. The trial court held that the guaranty applied only to the term of two years and four months and not to the extended term. The Court of Appeals said, “This, we think, is contrary to the intention of the parties, as gathered from the surrounding circumstances and the wording of the instrument, ’ ’ and further said:

“The tenants had the right, which they exercised, of leasing the premises for the full term of four years and two months. The landlord was bound for this period. Why should the guaranty cover only two years of it? The words of the guaranty express no such limitation. They are:' ‘We hereby guarantee the payment of the rent as stipulated in above lease. ’ The rent stipulated in the above lease was for four years and two months if the tenants exercised the privilege of extension. They exercised the option and became bound to pay the rent stipulated in the lease. There was no new lease; none was required; all the stipulations and agreements were contained in the one instrument which by the election of the tenant, continued for four years and two months. (Masset v. Ruh, 235 N. Y. 462; Orr v. Doubleday, Page & Co., 223 N. Y. 334.)”

Without a further review of the authorities we think the question in each case must be decided not precisely upon the use of the word “renewal” or “extension” but rather upon the intention of the parties as expressed in the writing interpreted in the light of all the circumstances under which the agreement was entered into. Such seems to be the thought of the author in 2 McAdam on Landlord and Tenant, 4th ed., sec. 265, p. 948:

“Whether the guaranty is a continuing one or not depends upon the language of the contract interpreted according to the intention of the parties as such intention is manifested by their writings.”

In the instant case, therefore, we look first to the language of the guaranty. It will be noticed that it expressly says that defendant guarantees “all” of the covenants, etc. One of these covenants provides for an extension upon condition. An intention to exclude seems inconsistent with the use of the word “all.” The right to an extension was contained in a rider which was attached to the lease and made a part of it. It was numbered clause 18. The guaranty was attached to this rider.

Again, looking closely to the words of the guaranty it will be noticed that after providing for the guaranty of all the covenants of the lease it expressly adds “and . . . said rider. ’ ’ This language seems to manifest an intention to affirm rather than negative an obligation on the part of the guarantor for the term as extended. If it was the intention of the parties to exclude liability for the extended term, why was the rider which provided for the extension thus specifically mentioned in the guaranty? Thus the language of the guaranty indicates the intention of the parties that the guarantor should remain liable if the term was extended.

Moreover, the evidence does not indicate that this defendant was a mere gratuitous surety. The evidence shows that he had a personal interest in the business. He afterwards became, as we have already stated, an assignee of the lease assuming all its obligations and covenants. He afterward assigned Ms interest upon the condition that he should remain liable upon all the covenants of the lease. We therefore hold that he was not a gratuitous surety and that he was liable upon his guaranty for the performance of the covenants of the lease during the extended period.

We hold, too, that defendant is liable upon covenants of the lease. When defendant became the assignee of the lease and entered into possession he was in privity with the lessors in two ways: he was, first, in privity, of contract with them, and second, in privity of estate. The effect of the assignment by defendant with the consent of the lessors was to destroy tMs privity of estate, but it did not destroy the privity of contract, and defendant therefore remained liable upon his covenants under the lease. The cases are all to this effect. We will cite only a few authorities: Midland Telegraph Co. v. National Telegraph News Co., 236 Ill. 476; Geist v. Kaplan, 195 Ill. App. 299; Thompson v. Western Gasket Co., 219 Ill. App. 184.

The evidence which was stricken shows that at the time the premises were delivered to plaintiffs on April 13, 1931, there was a balance due on account of rent of $12,233.89. It was error for the court to strike out this evidence.

We hold, too, that the court erred in excluding the evidence offered by plaintiffs tending to show the condition of the premises at the time when the same were surrendered. Plaintiffs contended that the lessee in possession had failed to keep the covenants of the lease concerning repair. This was contained in clause 13 of the lease which provided:

“Lessee further covenants and agrees that he will, at his own expense, make any and all ordinary repairs of every kind, nature and sort which may be required at any time during the term demised in the attached Indenture of Lease . . . and will keep the premises and each and every part thereof in good order and repair . . . and upon the termination of the lease to which this rider is attached, in any way, will yield up the said premises to the said lessor in good condition, ordinary wear and tear and loss by fire excepted.”

The trial judge was of the opinion that it was not in contemplation of the parties that the lessee should be liable except where there was wanton and wilful destruction or unless circumstances such as would amount to negligence upon the part of the lessee were shown. We think this is not the reasonable construction of this covenant. Plaintiffs have cited three cases which hold the lessee liable in the construction of similar provisions: Belgus Realty Corp. v. Irom, 212 N. Y. S. 285; Manchester Amusement Co. v. Conn, 80 N. H. 455, 119 Atl. 69; Connell v. Brownstein-Louis Co., 86 Cal. App. 610, 261 Pac. 331. Defendant does not cite authorities to the contrary, and his brief does not undertake to distinguish the cases cited.

We are not unaware of the difficulties which must arise in the determination of the liability imposed by a covenant of this kind under circumstances such as appear in this case. The lessee did not agree to make “extraordinary” repairs. The repairs he agreed to make were “ordinary.” Neither can he be held liable for any condition of the premises at the time the same were surrendered which was the result of “ordinary wear and tear.” Apparently, the lessee was not in default in this respect at the time notice of extension was given, since there was no objection then made on that ground. The liability, if any, of the defendant under this covenant must finally resolve itself into a very difficult and intricate issue of fact. It was, however, error to exclude the evidence tending to show the condition of the premises at the time of surrender. The question of law must await the determination of the facts.

For the reasons indicated the judgment is reversed and the cause is remanded.

Reversed and remanded.

McSurely, P. J., concurs.

Mr. Justice O’CoinsroR

dissenting in part: I think defendant was not liable for the cost of the repairs.