author: Mr. Justice MoSurely

text:
    John Tulka, Plaintiff in Error, v. Chicago City Railway Company et al., Defendants in Error.
    Gen. No. 34,221.
    Heard in the first division of this court for the first district at the April term, 1930.
    Opinion filed December 1, 1930.
    Hart E. Baker, for plaintiff in error; Gilbert, Rommel, Burger & Baker, of counsel.
    Albert B. Davis and Hubert A. Smith, for certain defendants in error; Frank L. Kriete, of counsel. Marshall E. Gallion, Pro Se.

   Mr. Justice MoSurely

delivered the opinion of the court.

This writ of error brings in review proceedings in the circuit court, in which an order was entered awarding Marshall E. Gallion, an attorney at law, a lien to the amount of $500 for attorney’s fees under section 13, ch. 13, Illinois statutes, Cahill’s St. ch. 13, ff 13.

There is no bill of exceptions, so we shall ignore what is said in the respective briefs about matters outside of the record before us.

May 13, 1927, a declaration was filed on behalf of John Tulka, by attorneys Reuben J. Feldman and S. H. Solomon, against the defendants, Street Railway companies, claiming damages from an accident alleged to be caused by defendants ’ negligence. A settlement was made, whereby defendants agreed to pay plaintiff $1,500, and January 28, 1929, the suit was dismissed. January 31, 1929, Marshall E. Gfallion filed a petition which recites that he is a duly licensed attorney practicing in Chicago; that on or about December 1, 1926, he was employed by John Tulka to prosecute his claim against the Street Railway companies for damages on account of personal injuries received, and that it was agreed that the petitioner should receive one-third of any amount recovered by Tulka on account of said claim, and that shortly thereafter the petitioner filed with the said Street Railway companies a notice of an attorney’s lien, as provided'by statute.

The petition sets forth various activities on the part of petitioner with reference to the matter, but avers that Tulka became dissatisfied with the services of petitioner and without notice to petitioner procured another attorney and effected a settlement of his claim for $1,500, on which petitioner claimed he was entitled to a lien of $500. Petitioner asked that a hearing be had and that an order be entered finding that he was entitled to an attorney’s fee on said $1,500 and that petitioner have and recover $500 from the Street Railway companies.

Upon the hearing the court found that it had jurisdiction of the subject matter and of the parties by service upon them of a notice of the hearing, together with a copy of the petition; that all the material allegations of the petition were true; that by the terms of his employment, petitioner was to receive an amount equal to one-third of any amount recovered by Tulka; that a notice of said employment and claim of lien of one-third was sérved on the Bailway companies; by reason whereof petitioner became entitled to a lien to the extent of one-third of any amount recovered; and that thereafter Tulka made a settlement with the Bail-way companies for $1,500; that petitioner has not been paid his share of said sum or any sum in payment for his services; and that he is entitled to a lien of one-third of $1,500 or $500. It was thereupon ordered that petitioner, Marshall E. Gf allion, have a lien to this extent and that he recover from the Bailway companies this amount and that he have execution therefor.

The validity of the order entered February 4, 1929, is attacked by Tullía only, first on the ground that there was not sufficient personal notice of the hearing given him. We do not determine whether the notice of the hearing or the petition must be preserved by a bill of exceptions, for we are of the opinion that the statute giving an attorney’s lien, Cahill’s St. ch. 13, If 13, does not require that such notice be given to the plaintiff or claimant — in this case Tulka. The statute provides that the attorneys shall serve a notice in writing “upon the party against whom their clients may have such suits, claims or causes of action,” claiming a lien, and that such lien shall attach to any verdict or to any money or property which may be recovered on account of such suits, claims or demands from and after the time of the service of such notice. With reference to the hearing it reads: ‘ ‘ On petition filed by such attorneys or their clients any court of competent jurisdiction shall, on not less than five days’ notice to the adverse party, adjudicate the rights of the parties and enforce such lien in term time or vacation.”

The record shows service of the notice of the hearing on John Tulka and the Bailway companies, but Tulka claims that it was only four days’ service on him instead of five. A reading of the entire statute clearly indicates that the parties contemplated were the attorney or the client, on the one hand, and the party against whom the client had a claim. The notice of lien shall be served “upon the party against whom the clients may have such suits, claims,” etc. On petition filed by “such attorneys or their clients,” the court shall on not less than five days’ notice “to the adverse party,” adjudicate the rights. Clearly, the adverse party means the party other than the attorney or the client, namely, the party against whom the client may have such suits, claims or demands.

This conclusion is fortified by the opinion in Baker v. Baker, 258 Ill. 418, where this statute is construed. The court said:

“In short, when the notice claiming a lien is served on the defendant or debtor under this statute, it has the effect of an assignment of an interest in any judgment or decree that may be rendered or in the proceeds of any settlement that may be made by the client, and is such an assignment that the defendant or debtor is bound to respect. This creates a new and substantial right in favor óf the attorney and divests the client of substantial rights that he theretofore possessed.”

This is also in line with the statement in 2 R. C. L., p. 1071, where it is said that such an agreement in favor of an attorney “will operate as an assignment of the cause of action to the extent of the amount stipulated,” citing many cases. In the case of an assignment the assignor is not made a party in a suit to enforce the obligation of the debtor (section 18 of our Practice Act, Cahill’s St. ch. 110, 1TÍ8). The Attorney’s Lien Act proceeds upon the same theory.

In Standidge v. Chicago Rys. Co., 254 Ill. 524, where the validity of the act was upheld, it was said that, by the language of the act providing that upon five days ’ notice to the adverse party the court will adjudicate the rights and enforce such lien, the legislature intended to confer jurisdiction to enforce such lien upon law courts and indicates that the practice should be the same as in courts of equity.

The order recites that the court has jurisdiction of the subject matter and “of the parties” by service upon them of a notice of this hearing. The Railway companies do not question receiving notice nor the order of the court.

Counsel for Tullca asserts that the petition shows on its face that Grallion was not the attorney of record in the dámage suit brought by Tulka. It was not necessary for him to be the attorney of record. The order found that he was employed by Tulka as an attorney to prosecute the claim for damages against the Railway companies and that he performed legal services for Tulka with reference to such claim. Whether or not he was the procuring cause of the settlement does not appear, in the absence of a bill of exceptions. A client cannot by discharging an attorney, except for good cause, deprive him of his lien. 6 C. J., p. 775 and cases cited; also Standidge v. Chicago Rys. Co., 254 Ill. 524; Sutton v. Chicago Rys. Co., 258 Ill. 551.

It should be remarked that we are passing only upon the record before us. There appears to be no sufficient reason to disturb the order of the court awarding Marshall E. Grallion a lien. If Grallion has not, in fact, rendered any services or there should be any other reasons which would make it unjust for him to retain the $500 in question, we see no reason why Tulka may not proceed against him to recover the same in a suitable action. We are not intimating anything with reference to the facts touching such services, for they are not before us.

For the reason above indicated the order of February 4, 1929, is affirmed.

Affirmed.

Matchett, P. J., and O’Conuor, J., concur.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    C. J. Driever, Complainant, v. Arthur K. Shephard et al., Defendants. In re Foreman State Trust & Savings Bank, Receiver, for the Approval of its Current and Final Accounts. Appeal of Edward M. Bertha, Individually and as Trustee, Appellant.
    Gen. No. 34,297.

      Heard in the first division of this court for the first district at the April term, 1930.
    Opinion filed December 1, 1930.
    Sonnenschein, Berkson, Lautmann & Levinson, for appellant; Roger S. Bloch and Horace A. Young, of counsel.
    Robert N. Erskine, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Edward M. Bertha (hereafter called defendant) appeals from an order approving the receiver’s final report entered in a partial foreclosure proceeding* of a first trust deed, in which C. J. Driever was complainant. Defendant is the holder of a second trust deed and bonds and challenges four payments aggregating $14,707.22 made by the receiver, Foreman State Trust & Savings Bank, to be applied on the principal, interest and income tax payments, pursuant to the terms of the first trust deed.

The first trust deed secured an issue of bonds aggregating $175,000 and provided that the holder of any matured bond and interest coupon could upon certain defaults institute a partial foreclosure; provided, however, that such partial foreclosure should operate to subordinate the lien of the trust deed as to the bonds which were the subject matter of the partial foreclosure to the lien of all the other bonds secured by this first trust deed, and that any sale of the mortgaged premises under the partial foreclosure should be subject to the continuing lien of the trust deed for the security of the other bonds. September 7, 1928, complainant filed his bill for a partial foreclosure. October 1, 1928, Foreman State Trust & Savings Bank was appointed receiver and from the rents and profits it made the payments which defendant questions.

The first trust deed conveyed the rents, issues and profits as additional security and authorized the trustee to take possession of the property, collect the rents and apply the same specifically upon the bonds and coupons secured by the trust deed. Upon the filing of any bill to foreclose, the court might appoint a receiver to collect such rents and could authorize the receiver to apply the net amount in his hands in payment of any or all the following items: “amount due upon the indebtedness secured thereby,” . . . “or (4) . . . any other lien or charge upon said premises that may be or become superior to the lien of this Indenture.” There was a further provision that there should be paid out of the rents or proceeds of any sale the principal bonds and interest not subordinated and that such covenants should be binding upon the grantors’ assigns.

The decree of sale entered October 4, 1929, found complainant had a first lien on the mortgaged premises to secure the sum of $13,066.97; that such lien was subject to the continuing and prior lien rights of the holders of the remaining bonds of the same issue and that the defendant Bertha had a second lien subordinate to that of the complainant and also subordinate to the continuing lien of the first trust deed securing the remaining bonds. November 27, 1929, and before sale, the receiver filed his report showing the payments which are challenged. December 3, 1929, sale was had and complainant purchased for $9,600, subject to the first mortgage, exclusive of complainant’s rights, and a deficiency decree was entered in favor of complainant for $4,519.16, which was subsequently satisfied. January 20, 1930, the receiver’s final report was filed, defendant’s objections thereto were overruled and the report was confirmed.

Defendant contends in this court that the receiver was not authorized in the general order of appointment to make the payments in question without a specific and definite order from the court, after due notice to all parties concerned. While it is the safer practice for a receiver to protect himself by specific orders for expenditures, yet, where his report of such expenditures has been finally ratified and approved by the court, after notice to all parties interested, the failure to obtain specific orders authorizing payments is not vitally important. This is especially true where the receiver shows to the court that the sums thus expended without specific directions were in the interest of the receivership estate and beneficial to it. This has been the general practice in our courts for many years. The court’s order approving the final report was a ratification of the acts of the receiver. Atwood v. Knowlson, 91 Ill. App. 265; Brown v. Hazelhurst, 54 Md. 26; Forest Lake Cemetery v. Baker, 113 Md. 529; Thompson v. Phenix Ins. Co., 136 U. S. 287; and High on Receivers (4th-ed.) p. 945, where the author says that where a receiver shows an outlay to have been necessary and such as would have been authorized by the court had application been previously' made, he will be reimbursed for such outlay, as if previous authority had been given.

However, it is not conceded that the original order of appointment is not sufficiently broad to justify the payments made. The order recites that the receiver should take immediate possession of the premises, rent the same “and to make monthly payments of principal under Article 9 of the Trust Deed being foreclosed herein until the further order of this court.” Article 9 in the trust deed referred to is, in substance, an agreement by the mortgagor to deposit with Cochran & McCluer Company in Chicago certain specified amounts at specified times and that such sums so deposited shall be applied “towards the payment of instalments of principal and interest as they severally mature.” There was also a similar provision with reference to the income taxes levied on such bonds.

When complainant filed his bill he subordinated his lien to the rights of the other bondholders under the trust deed and they were still entitled to have these provisions of the trust deed enforced. In this respect the receiver stood in the place of the trustee in the trust deed, and in order to protect the estate should have made the payments provided by such trust deed. It would be anomalous to permit the receiver in a partial foreclosure of a trust deed to act in opposition to the terms of the trust deed securing the rights of the other bondholders who were not parties to the foreclosure and whose lien is conceded to be prior to the lien of the foreclosing complainant. If the provisions of Article 9 of the trust deed, providing for the deposit of the income and rent to take care of principal bonds and interest as they matured were not carried out, the rights of the holders of these superior bonds would be seriously affected.

Defendant suggests that the order of appointment authorized‘the receiver only to make “monthly payments of principal” and not of any interest. Considering the terms and purposes of the trust deed, it is unreasonable to suppose that the court intended by this order to provide for the payment of principal bonds only and not of interest, which would result in guarding against a default for nonpayment of principal but not against default for nonpayment of interest.

Article 9, in essence, was a provision for a sinking fund with which to pay all current obligations under the trust deed as they matured. It was the duty of the receiver to protect and preserve the property in its possession and to make such payments as would, as far as possible, prevent the enforcement of prior liens. The duty to make such payments has been frequently recognized in our courts. Boyd v. Magill, 100 Ill. App. 316; Elliott v. Magnus, 74 Ill. App. 436; Atwood v. Knowlson, 91 Ill. App. 265; Ortengren v. Rice, 104 Ill. App. 428. These cases recognize the principle that the receiver should make such payments accruing under a prior mortgage so as to prevent default of the superior claim and lien. This is the basis of the usual order authorizing receivers to pay the current taxes on the premises involved. If they were not paid, a superior lien would be definitely established and a decree would be unavailing. The receiver should, as far as possible, see that the property is carried to the judicial sale free and clear of all claims, the enforcement of which would prejudice the parties to the suit.

Defendant asserts repeatedly that the first mortgagee is not a party to the pending proceeding. This is not accurate, for the Chicago Title & Trust Company, the trustee in the first trust deed, was made a party defendant and appeared and filed its answer, asserting the prior rights of its trust deed.

Complainant makes the point that the defendant Bertha consented to the entry of the original order appointing a receiver and made no objection thereto nor objected at any stage of the proceedings until the receiver’s report was filed. Defendant must have known that under the order of appointment the receiver would not only pay the prior instalments of principal and of the interest but made no objections to this order.

Furthermore, on February 13, 1929, defendant entered his appearance and filed his answer wherein he asked that a receiver be appointed to have possession and control of the property together with the rents and that such receiver should have “full 'power and authority to pay all interest on prior encumbrances accruing at any time prior to the expiration of the period of redemption.” The receiver was, therefore, doing the very thing that the defendant himself asked should be done. This can only be construed as consent upon his part to have the receiver make these payments. Under such circumstances defendant should not be heard to complain that such payments were made. First Nat. Bank of Joliet v. Illinois Steel Co., 174 Ill. 140; Roby v. Title Guarantee & Trust Co., 166 Ill. 336; Smith v. Kimball, 128 Ill. 583; Reardon v. Youngguist, 189 Ill. App. 3.

Counsel for defendant have cited a large number of cases, none of which is particularly applicable to the instant case. Indeed, a partial foreclosure, like that now before us, is somewhat unusual. It may be conceded that in the ordinary foreclosure proceedings the rents collected by the receiver before sale are applied to any deficiency after sale and any overplus belongs to the owner of the equity of redemption. The cases cited by defendant involve situations either where the mortgage debt was discharged by the sale or there was a dispute between some subsequent owner of the equity of redemption and the deficiency judgment creditor. We repeat that in the instant case, when the receiver had made the payments in question, no sale had been held and the receiver was doing nothing more than protecting and preserving the property by following the directions contained in his order of appointment.

There is no importance in defendant’s suggestion that by the appointment of the receiver defendant perfected an equitable lien on the rents and profits. Such lien was subordinated to the lien rights of the bondholders under the first trust deed. Complainant was acting under the terms of the first trust deed and could not seek the benefit of such terms for himself alone in derogation of and contrary to the terms of the trust deed which were for the benefit of the other bondholders. Complainant, however, subordinated his right to those of the other bondholders.

Complaint is made that the decree provides that it is subject to the continuing lien of the prior trust deed for the remaining 314 bonds secured thereby and that this could not be if any of these bonds had been paid by the receiver. The lien of the prior trust deed could only be security for such bonds with interest as were unpaid.

The payments made by the receiver were for the benefit not only of the complainant but also of the defendant. Defendant could have bought the property in at the sale and had the right to redeem, in which case these payments would have inured to his benefit. We do not see that the defendant has been harmed. Concededly, his lien is inferior to that of the first trust deed, and if the indebtedness secured thereby has been reduced — as evidently it has been by these payments— this is to the benefit of the defendant by reducing the prior incumbrance.

We have only briefly referred to the points made and cases cited by defendant, but have set forth the affirmative reasons for our conclusion. We are of the opinion that the order approving the receiver’s report was proper and it is affirmed.

Affirmed.

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


text:
    Henry A. Tegtmeyer, Appellant, v. Axel Nordlund, Appellee.
    Gen. No. 34,437.

      Heard in the first division of this court for the first district at the June term, 1930.
    Opinion filed December 1, 1930.
    Colby, Meyer, Brisgall & Hitman, for appellant.
    John J. Sonsteby and Joseph J. Berzin, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff appeals from an adverse judgment in an action in which he seeks to recover on a promissory-note dated March 24, 1926, due four months after date, for $2,500, to the order of Phil J. Boiler.

February 2, 1928, plaintiff had judgment by virtue of the power of attorney to confess judgment in the note. September 26, 1928, defendant filed a petition alleging in substance that the note was delivered conditionally without consideration. Thereupon the judgment by confession was vacated and defendant given leave to plead. The defendant pleaded that the note was executed by him without any consideration and that plaintiff was not a bona fide holder of the same. Upon trial the jury returned a verdict for the defendant, and plaintiff appeals from the judgment on this verdict.

Upon trial it was stipulated that plaintiff obtained the note when it was past due and that the same defenses were available as if the note was still in the hands of the payee, Boiler.

Boiler, the defendant Nordlund and ten other men were directors of the Milwaukee Western Trust & Savings Bank. This was the successor to another bank and as such successor had taken about $49,000 of bad paper as assets, carried on its books at $30,000. The bank examiner objected to this paper and requested that it be removed from the assets of the bank. About March 10, 1926, the directors of the bank, including Boiler and the defendant, had a meeting at which a plan was proposed whereby the bad paper could be removed. It was agreed that three of the directors would raise $10,000 each with which to buy the bad paper at $30,000. Each of these three men so raising this money in cash would receive three notes of $2,500 each from three other members of the board of directors, so that the twelve directors so contributing would become the owners of the $49,000 of bad paper and, if and when collected, each would share to the extent of one-twelfth in the amount collected. Boiler was one of the three men to raise $10,000.

There is evidence that defendant objected at the meeting to signing a note, but subsequently, when the note was brought to his home by a Mr. Leo Michael, a director, he signed it although apparently with reluctance. Defendant was permitted to testify that he signed it upon the representation of Michael that “the bank will take care of the note when it comes due.” ■On the other hand, Michael testified that he never told defendant that the bank would pay the note when it became due nor that defendant would not have to pay the note. To carry out this agreement Boiler made out his personal check, payable to defendant, for $2,500, which was deposited to defendant’s account in the bank and the defendant’s check for a like amount was delivered to Boiler. When the note became due and demand for payment was made, defendant refused to pay.

These facts tend to show a consideration for the execution and delivery of the note. The essence of the agreement was the purchase by the directors, including defendant, of the bad paper of the bank. Defendant’s interest in this paper would be a sufficient consideration. Furthermore, it was of interest to defendant, as a stockholder and director of the bank, to get rid of the bad assets of the bank and to substitute assets that would meet with the approval of the examiner. The contribution made by defendant along with the other directors, would at least postpone, if not prevent, a loss following the closing of the bank.

“A benefit to the promisor or a loss or detriment to the promisee . . . may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility given, suffered or undertaken by the other” . . . . and “may consist in a benefit to a third person.” 3 B. C. L., par. 126, pp. 930, 931.

Defendant, however, contends that under the rule laid down in Straus v. Citizens State Bank, 164 Ill. App. 420, approved by the Supreme Court in 255 Ill. 185, there was no consideration. The facts in that case can easily be distinguished from those before us. There it clearly appears that the note in question was given merely as an accommodation and wholly without consideration. The facts in this case are more nearly like those in State Bank of West Pullman v. Hovnanian, 250 Ill. App. 144. There, as here, the note was given by one of the directors to make good an impairment of the bank assets due to the inclusion therein of certain worthless paper. It was held that such note was not for accommodation but was given for a valid consideration for the purpose of making good the impairment of the bank’s capital and thus restore its solvency and avoid the necessity of levying an assessment against the stockholders. It was also so held in cases involving similar facts in Liberty Trust Co. v. Price, 259 Mass. 596; Farmers’ Equity Co-op. Ass’n v. Tice, 122 Kan. 127; Queensboro Nat. Bank of City of New York v. Kelly, 221 N. Y. S. 703.

We are of the opinion that parol testimony to the effect that defendant was told that he would not have to pay the note was inadmissible as tending to vary the terms of the written instrument. The note says, “Pour months after date I promise to pay.” The testimony that it was stated that the bank would take care of it tends to contradict this agreement. In Handley v. Drum, 237 Ill. App. 587, the court considered this question with a thorough study of many cases. We are in accord with the following statement in that opinion:

“It is elementary that the defendants could not show by parol, even as against the payee of the note, that the parties had an understanding that the contract in fact was conditional. It is a fundamental part of the law of contracts, to which there are very few exceptions, that a party to a written contract may not contradict the terms of that contract by parol. But it is equally well established that such a party may show that the contract claimed to exist was in fact never fully executed, — that although it was signed by him, he never delivered it or that there was merely a conditional delivery and that the condition has failed. In so doing, the written terms of the contract are not varied by parol but the showing made is merely to the effect that the contract never was completely executed.” Citing Northwestern Consol. Milling Co. v. Sloan, 232 Ill. App. 266, and other cases.

Where there is a failure of consideration, evidence is admissible to show the circumstances under which the note was executed and delivered as tending to show a conditional delivery and that the condition has failed; but where there is a valid consideration the payor will not be heard to say that he'had an understanding that the note was conditional.

Counsel for plaintiff complain of the conduct of the-trial court in taking too active a part in the examination of one of his witnesses. We are inclined to agree that the asking of questions and the comments of'the court were such as to incline the jury towards the defendant.

The plaintiff requested the court to give an- instruction which, at some length, embodied the theory of plaintiff. The instruction in effect told the jury that if it believed that at the meeting of the board of directors they agreed that each of them should advance the sum of $2,500 to make up the total of $30,000 to be deposited in the Milwaukee Western Bank to take the place of certain assets then in the possession of that bank, to which the bank examiner had objected, and if it believed that, in pursuance of that agreement, the payee advanced $2,500 to the defendant, which sum the defendant immediately paid over to the Milwaukee Western Bank, there was a valuable consideration for the note. In substance, this was a correct statement of .the law and we see no reason why it should not have been given..

The court gave an instruction, at plaintiff’s request, that the burden of proof was upon the defendant and that “he must prove his case by a preponderance or greater weight of the evidence,” and also gave an instruction, offered by defendant, to the effect that “if you find that the evidence is equally balanced, you should find the issues for the defendant.” These instructions contradict each other and the jury cannot be presumed to know which instruction should be followed as the law. People v. Emmel, 292 Ill. 477. The instruction given at plaintiff’s request was a proper statement of the law and the instruction given at the request of defendant does not state the law correctly. Bemis v. Horner, 165 Ill. 347. If the jury in this case should find the evidence to be equally' balanced, it should find the issues for the plaintiff.

The court improperly gave an instruction tendered by defendant which undertook to define “bad faith” on the part of a purchaser of a negotiable instrument. As it was stipulated that defendant could make any and all defenses to the note as if the same were in the hands of Boiler, this instruction had no place in the case and should not have been given.

For the reasons indicated we hold that the judgment should be reversed and the cause remanded for further proceedings consistent with what we have said in this opinion.

Reversed and remanded.

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


text:
    The People of the State of Illinois, Defendant in Error, v. Mike Simos et al., Plaintiffs in Error.
    Gen. No. 34,505.

      Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed December 1, 1930.
    "Wm. Scott Stewart, for plaintiffs in error.
    John A. Swanson, State’s Attorney, for defendant in error; Edward E. Wilson, Henry T. Chace, Jr., and Otho S. Fasig, Assistant State’s Attorneys, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendants were charged with conspiracy to suborn perjury by causing one Dorothy Fletcher to testify jfalsely to a material issue in a personal injury suit instituted by Mike Simos, one of the defendants, against the Chicago Rapid Transit Company in the circuit court of Cook county. They pleaded not guilty but upon trial the jury found each defendant guilty as charged. The punishment of the defendant Mike Simos was fixed at imprisonment in the county jail for nine months; of the defendant Anthony Anton at imprisonmenf in the county jail for one year; and of the defendant Pericles Caloedas at imprisonment in the penitentiary. Defendants seek a reversal. Counsel appearing here did not represent defendants in the trial court.

Defendants’ brief contains some 25 points, but only four points are argued. Points contained in the brief but not argued may be considered waived. Harding v. People, 202 Ill. 122; and Rule 19 of this court.

It is first argued that, when defendants were tried before Judge John J. Sullivan, which is the instant trial, they were not permitted to introduce evidence of former jeopardy.- The brief gives us virtually no information as to the prior proceedings but makes only a general statement that at a former trial before Judge Taylor in the criminal court, after a jury had been selected to try the defendants upon the same indictment and hearing of testimony had begun, a juror was withdrawn upon motion of the State’s Attorney; that in the instant trial defendants sought to prove this, but Judge Sullivan refused to admit the evidence. This meager statement in the brief does not help us to arrive at any considered judgment as to whether this ruling was right or wrong. As the burden is upon the one claiming erroneous exclusion of evidence to show wherein it is erroneous, in the absence of such a showing we should hold that no reversible error in this regard had been made to appear.

The bill of exceptions shows that defendant Anton was asked whether he was present in the court room of Judge Taylor when the case of People against these same defendants was on trial, to which the witness answered that he was present. He was then asked: “Was there any evidence introduced in that case?” Objection was made by the State’s Attorney. Counsel and court then retired to the chambers of the judge and the attorney for defendants made an offer as follows: “I offer to prove that the defendants in this case were placed on trial on the same indictments, that a .jury was selected and sworn to try the issues, and the State introduced the testimony of several witnesses, some of whom have testified at this hearing, and that during the cross-examination of Dorothy Fletcher, without any fault of any of the defendants, on the motion of the State’s Attorney, Judge Taylor granted leave to the Assistant State’s Attorney to withdraw a juror.”

The presumption is that Judge Taylor properly exercised the discretion with which the law empowered him and that he declared a mistrial for good and sufficient reasons. The offer by defendants discloses nothing whatever tending to overcome or even contradict this presumption: Many incidents might happen upon a trial which would justify the court in declaring a mistrial and discharging the jury. Illness of a juror, misconduct of a witness or a spectator or an attorney and similar occurrences might take place without the fault of a defendant and yet be sufficient ground for declaring a mistrial. The offer of proof does not tend to prove any impropriety in discharging the jury by Judge Taylor, and Judge Sullivan’s ruling sustaining the objection to the offer of proof was proper.

The discharge of a jury even without the consent of the accused does not necessarily bar a second trial for the same offense on the ground of former jeopardy. Dreyer v. People, 188 Ill. 40; People v. Peplos, 340 Ill. 27; and cases there cited. The general rule is that in cases of this nature the courts of justice have the authority to discharge a jury from giving a verdict whenever, in their opinion, there is a manifest necessity for such an act or the ends of public justice would otherwise be defeated. United States v. Perez, 9 Wheaton 579; vol. 8 R. C. L. 153-156; Simmons v. United States, 142 U. S. 148; State v. Bell, 81 N. C. 591. It is not necessary for the trial court to find that there was any illegal or improper attempt to tamper with the jury, but there is a sufficient basis for the court’s decision where the act is suspicious and may bar a construction consistent with a purpose to unduly influence the administration of justice. People v. Diamond, 231 Mich. 484; State v. Hansford, 76 Kan. 678. Neither is it necessary to find that the defendant was guilty of any misconduct. State v. Wiseman, 68 N. C. 203; State v. Washington, 89 N. C. 535.

There is incorporated in the record certain pleadings which set forth a stenographic report of the occurrence before Judge Taylor, and in the brief for the People the propriety of Judge Taylor’s action is argued extensively. We do not think it necessary for us to discuss this, especially as the attorney for the defendants contends that these pleadings are not properly in the record and refuses to discuss them. However, we have examined the facts presented by these pleadings and are of the Opinion that not only was Judge Taylor fully justified in declaring a mistrial, but that the defendants consented to this and immediately after the ruling of the court moved that the case be transferred to the Chief Justice for reassignment. Where a defendant consents to the discharge of a jury, he waives objection and cannot upon a subsequent trial plead former jeopardy. Oborn v. State, 143 Wis. 249; Riley v. Commonwealth, 190 Ky. 204; Franhlin v. State, 149 Ark. 546; Kingen v. State, 46 Ind. 132; vol. 1 Bishop on Criminal Ltiw (9th ed.) 739.

Defendants next claim that the court improperly admitted evidence of other like crimes by the defendants or some of them. No persuasive argument to support this point is made. It is well established that, where the issue whether one is guilty of a specific overt act of conspiracy is made, it is competent to give in evidence other overt acts of conspiracy which include or are dependent upon or constitute a part of the particular act for which the defendant is tried. McDonald v. People, 126 Ill. 150; vol. 8 R. C. L. 199-203; Williamson v. United States, 207 U. S. 425; People v. Duffy, 212 N. Y. 57. In this latter case evidence of other acts was stated to be competent as showing that the wrong doings “were part of one continued series or systems of events.” See also Shea v. United States, 236 Fed. 97; Card v. State, 109 Ind. 415; DuBois v. People, 200 Ill. 157, where it was held that proof of similar transactions practiced by the defendant upon others- was held admissible upon a trial for obtaining money by means of a confidence game to show guilty knowledge on the part of the defendant.

It is next claimed to be prejudicial to the interests of the defendant Caloedas that the court appointed Mr. A. A. Pantelis as his attorney. Mr. Pantelis had entered his appearance many months before for the defendants Simos and Anton. At the commencement of the trial, after the jury was sworn, defendant Caloedas for the first time informed the court that he desired Mr. William Scott Stewart to represent him as his attorney in the case and in response to an inquiry told the court that he had employed Mr. Stewart as his attorney only the preceding night, as Mr. Harrington who had previously represented him had since withdrawn. The court thereupon appointed Mr. Pantelis, who represented the other two defendants, to represent Caloedas also and stated that he would not continue the case for Mr. Stewart at this late day. Mr. Pantelis has appeared at the prior proceeding and was thoroughly familiar with the case. The instant trial took place more than seven months after the prior proceeding before Judge Taylor. Under the circumstances we think there was no abuse of discretion for the trial court to refuse to continue the case and to appoint Pantelis to represent defendant Caloedas along with the other defendants. The interests and the defenses of the several defendants were identical. There is no suggestion that Pantelis did not competently represent all the defendants.

The last point presented in defendants’ brief is that the verdict is contrary to the weight of the evidence. The brief does very little more than make this statement. There is only the most sketchy outline of the evidence. The purpose of a brief is to convince the reviewing court and a mere assertion is not sufficient.

The evidence tended to show that in April, 1928, the defendant Caloedas, pursuant to a telephone appointment, went to the home of Dorothy Fletcher and asked her to testify in a personal injury suit instituted against the elevated railroad by one of his friends; he told her they needed another witness, as they did not have sufficient evidence to prove the case, and he asked her to go with him to their lawyer. Following this, Caloedas called at Dorothy Fletcher’s home and took her in a cab to number 7 South Dearborn Street, Chicago, where they met Paul Sofías and Mike Bournazious. Sofías told Miss Fletcher that he had been hurt in an accident and would like her to say that she was with him in the accident. Dorothy Fletcher went with them to look at the place of the alleged accident and the manner in which the accident happened was rehearsed. In September, 1928, Caloedas went to Miss Fletcher’s home and told her that the case was coming up the first of the next week and that she would have to go down in the morning to see the lawyer. The next morning she and Caloedas went to the office of an attorney, where they met the defendants Anton and Simos, to whom she was introduced. She questioned whether they were the men for whom she was to testify, but Caloedas told her that this was another case; that another accident had happened, and Anton told her that he had been in an accident on May 6, 1927, at the VanBuren and Franklin Street elevated station in Chicago, and that she was to testify in this latter case. She was then told that two elevated cars had collided and that Simos was supposed to have been hurt and Anton was going to testify in regard to helping him. Miss Fletcher then told them she would have to know more about the accident and went with them to the VanBuren and Franklin Street station, where the accident and the manner in which it happened was rehearsed. Simos told her to say, when testifying, that she had given him a card containing her telephone number. They returned to the attorney’s office and she was cautioned not to say anything to the attorney about having been asked to testify for Simos. She told the attorney that she did not understand exactly about the accident, so the attorney took her again to the elevated station, accompanied by Caloedas, Anton and Simos, and again the accident was explained to her. The following week she again met the defendants and was told to keep her story straight, as it was important that her story should correspond with theirs, and again ' they went over the testimony that they would give on the trial. When the case came on for trial before Judge Hood in the circuit court of Cook county, Miss Fletcher, Simos and Anton gave testimony as to the happening of the accident and the personal injuries sustained by Simos, in accordance with their previous arrangement.

Upon the trial of the instant criminal case Miss Fletcher testified that she had never been to the Van Burén and Franklin Street elevated station prior to the time that defendants Caloedas, Simos and Anton took her there and that she did not witness the accident and that she never saw Anton carry Simos up the platform, as she and Anton had theretofore testified. There was also evidence of other witnesses tending to show that, while on May 6, 1927, there was a collision between cars near the VanBuren and Franklin Street elevated station, they saw neither Simos nor Anton nor Dorothy Fletcher upon the trains or on the platform at the time. Both Simos and Anton testified as to the collision and claimed that Simos was hurt. The evidence was that the collision was only slight, merely breaking a glass of the window of one of the cars and partially derailing one car. It is significant that Simos had known Caloedas for a number of years and that Caloedas was in the habit of recommending damage, suits to attorneys and also had a suit of his own for personal injuries against the street car company at the time he testified in the case at. bar.

After considering this variant testimony, including the denials of the defendant, the jury could properly conclude that Simos was not injured in said accident and that his testimony as well as the corroborating testimony presented at the trial of his personal injury suit was false as the result of the conspiracy of defendants to suborn perjury. The jury was justified in finding the defendants guilty of the crime charged, and as there were no reversible errors occurring upon the trial, the judgment as to each defendant is affirmed.

Affirmed.

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


author: Mr. Justice O’Connor

text:
    Stanley Swiercz and Rozalia Swiercz, Plaintiffs in Error, v. Albert Nalepka and Mary Nalepka, Defendants in Error.
    Gen. No. 34,257.

      Heard in the first division of this court for the first district at the April term, 1930.
    Opinion filed December 1, 1930.
    Rehearing denied December 15, 1930.
    Eugene C. O’Reilly, for plaintiffs in error.
    Joseph F. Elward, for defendants in error.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiffs brought an action of assumpsit against the defendants to recover damages for the alleged breach of a contract for the exchange of real estate. The defendants entered their appearance and afterwards, upon notice served on opposing counsel, an order was entered extending the time within which defendants might plead, but through misunderstanding of counsel for defendants the order did not grant defendants as much time as counsel had understood the order provided. The plea not having been filed within the time as extended, plaintiff, by their counsel, appeared in court and without notice to defendants they were defaulted and judgment entered on plaintiffs’ affidavit of claim. After the term at which the judgment was entered had expired, the defendants filed a motion under section 89 of the Practice Act, Cahill’s St. ch. 110, if 89, and upon notice moved the court to vacate the default and judgment and for leave to defend. Plaintiffs demurred to defendants ’ written motion, the demurrer was overruled and the judgment vacated. Plaintiffs elected to stand by their demurrer and prosecute this writ of error.

One of the questions for decision is: Did defendants’ written motion allege such facts as would warrant- the court in vacating the judgment and permitting defendants to plead? Section 89 of the Practice Act has been before this court and the Supreme Court for consideration on numerous occasions and since the decision in Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516, construing Buie 20 of the circuit court of Cook county, great injustice has often been done where a party has been defaulted after appearance without notice. Buies 20 and 21 of the circuit court fire as follows:

“Bule 20. Ho motion will be heard or order made in any cause without notice to the opposite party when an appearance of such party has been entered except where a party is in default or when a cause is reached on the call of the trial calendar.”
“Buie 21. . . . Where a party is in default for want of appearance no notice shall be required, except upon the order of the court.”

In the Cramer case, Buie 20 was construed, and it was held that where a defendant had filed a number of pleas but had not filed an affidavit of merits as required by the statute, he was in default and the rule did not apply and no notice was required. Obviously with all the courts operating as they are in Cook county, no default ought to be entered where one has entered his appearance without notice, unless the law warrants it. In the Cramer case the only rule of the court under consideration was Rule 20.

In the instant case in construing Rule 20, we must take into consideration Rule 21. The latter rule was not before the Supreme Court in the Cramer case. Rule 21 provides that even where a person has not filed his appearance, the court may require that notice be given to him before his default will be entered of record. If under Rule 21 the court may require notice to a party who has been so neglectful as not to file his appearance before a default or other order is entered, a fortiori should notice be required where an appearance has been entered.

Construing the two rules together, as we must, we hold that under Rule 20 no order can properly be entered where an appearance is entered without notice, and that since no notice was given to the defendants in the instant case, the default judgment was erroneously entered. Rules of court when entered of record are binding on the courts and become the law of procedure in matters to which they relate when not inconsistent with the statute. Feldott v. Featherstone, 290 Ill. 485.

In the instant case the motion of the defendants to vacate the judgment set up that the court, in entering the default and judgment was not aware of the fact that no notice of the application for such order and judgment had been served on defendants’ counsel. The purpose of the motion under section 89 is to bring before the court entering the judgment matters of fact not appearing of record. We must presume that the court was familiar with its rules and if there was error in construing them by the trial court, the error was one of law and not of fact. Cramer v. Illinois Commercial Men’s Ass’n, supra. But the fact which the court was not apprised of was that no notice had been given to counsel for defendants, that application would be made for default and judgment. This fact did not appear of record and warranted the court, in the instant case, in allowing defendants’ motion. Jacobsen v. Ashkinaze, 337 Ill. 141. In that case the defendant employed counsel to file a plea. Afterwards the cause was stricken from the docket. Some time later an attempt was made to substitute different counsel for defendant. Defendant was not aware of this fact. Subsequently notice was served on counsel sought to be substituted and other proceedings had in the case. The court held that the substitution was unwarranted because defendant had no notice of the substitution, and that a motion under section 89 of the Practice act would lie. The court there said (p. 146):

“The purpose of the writ coram nobis at common law, and of the statutory motion substituted for it in this State, is to bring before the court rendering the judgment matters of fact not appearing of record, which, if known at the time the judgment was rendered, would have prevented its rendition. Illustrations of such matters are the disability of the parties to sue or defend, the failure of the clerk to file a plea or answer, and the omission to interpose, through fraud, duress or excusable mistake and without negligence on the part of the defendant, a valid defense existing in the facts in the case. Th”e motion is not available to review questions of fact which arise upon the pleadings or to correct errors of the court upon questions of law.” And continuing the court said (p. 148): “Beach did not withdraw his appearance.as the attorney for the plaintiff in error (defendant) either by his client’s consent or the court’s permission. Elliott (the attorney sought to be substituted) had no authority to represent the plaintiff in error and the latter had no notice or knowledge of the substitution. To charge the plaintiff in error with notice, actual or constructive, of the eco parte trial, notice either to Beach the attorney or to the plaintiff in error himself, of the motion to vacate the order of October 11, 1920, striking the cause from the docket and to reinstate the cause, was necessary. No such notice was given to either of them. The notice to Elliott of that motion was of no avail because he did not represent the plaintiff in error. These matters of fact did not appear of record and were unknown to the court at the time it reinstated the cause on its docket. Obviously, if these facts had been known the court would not have rendered judgment against a party who had no notice of the reinstatement of the cause and was not chargeable with such notice.”

Under the allegations of defendants’ motion which is admitted by the demurrer, the court had no knowledge of the fact that no notice had been given counsel for the defendants. If the court had been apprised of such fact, this would have prevented the entry of default and judgment.

The order of the circuit court of Cook county vacating the default and giving defendants leave to plead is affirmed.

Affirmed.

Hatchett, P. J., and HcSurely, J., concur.


author: Mr. Presiding Justice Wilson

text:
    Charles A. Dougherty, Plaintiff-Appellee, v. General Accident Fire & Life Assurance Corporation, Defendant-Appellant.
    Gen. No. 33,847.
    Heard in the third division of this court for the first district at the October term, 1929.
    Opinion filed December 10, 1930.
    John A. Bloomingston, for appellant.
    Kelly & Murphy, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

This is an appeal from a judgment for $1,050, rendered in the superior court in a suit on an insurance policy. The cause was tried by the court without a jury and on a stipulation of facts.

There appears-to be but one issue in the case: The Workmen’s Compensation Act, provided, ch. 48, If 216, section 16, Cahill’s Illinois Revised Statutes of 1925, that the industrial commission may make rules and orders for carrying out duties imposed upon it by law. By virtue of this power granted to it, the industrial commission passed a rule to the effect that a policy of insurance covering the employees of the employer named in the policy, should not terminate by cancellation or otherwise until after notice of such termination had been received by the industrial commission of Illinois. The Supreme Court of this State in the case of Zurich General Accident S Liability Ins. Co. v. Industrial Commission, 325 Ill. 452, held this rule invalid in that it created a liability on the part of the insurer, by reason of a rule of the commission, where none existed by law. It was a violation of the right of contract and invalid. In the case at bar, however, this provision was expressly incorporated into the contract as a condition thereto, and was governing and controlling as to the parties because of its being consented and agreed to by them.

The policy contained a clause, as follows:

1 ‘ The law of any State, in which this policy applies, which requires that notice of cancellation shall be given to any board, commission or other State agency, is hereby made a part of this policy and cancellation in such State shall not be effective except in compliance with such law.”
Attached to the policy as a rider, and by reason thereof part of the policy, was the following indorsement :
“April 19, 1924.
“Illinois.
“The obligations of paragraph one (a) of the policy to which this indorsement is attached include such workmen’s compensation laws as are herein cited and described and none other.
“House Bill No. 841, session of 1913, as amended by Senate Bill No. 66, session of 1915, Senate Bill No. 471 and House Bill No. 551, both session of 1917; Senate Bill No. 384, session of 1919, and Senate Bill No. 525, session of 1921, State of Illinois, all known and cited as the Workmen’s Compensation Act, and all laws amendatory thereof which may be or become effective while this policy is in force. . . .
“Any termination of this policy shall not be effective as to the employees of this employer covered thereby until ten days after notice of such termination by cancellation or otherwise has been received by the Industrial Commission of Illinois at its office in Chicago, Illinois.”

The accident for which the cause was brought happened a day or two after the expiration of the policy, but within the ten-day period provided for as to notice to the industrial commission. This ten-day provision — being incorporated in the policy and made a part thereof — was binding upon the parties to that agreement. The defendant expressly stipulated by this clause of the policy and the indorsement attached thereto, that it would insure the plaintiff for ten days after it had notified the industrial commission of the fact that the policy had expired. Without this provision, plaintiff might not have signed nor accepted the policy. The parties having agreed to the conditions, should be bound by them.

The Supreme Court of this State in the case of Zurich General Accident & Liability Ins. Co. v. Industrial Commission, supra, refused to read this rule of the industrial commission into the policy. In the case at bar,' the parties themselves wrote the condition into the policy and it became part of the policy by their own act. There is no attempt to read it into the policy by operation of law.

For the reasons stated in this opinion, the judgment of the superior court is affirmed.

Judgment affirmed.

IIebel and Friend, JJ., concur.


text:
    S. Arthur Taylor, Appellee, v. Southern Railway Company, Appellant.
    Gen. No. 34,123.

      Heard in the third division of this court for the first district at the February term, 1930.
    Opinion filed December 10, 1930.
    Rehearing denied and opinion modified January 5, 1931.
    Kramer, Kramer & Campbell, K. E. Costello and Pomeroy & Martin, for appellant.
    Royal W. Irwin, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

Plaintiff 8. Arthur Taylor brought this action against the defendant Southern Hallway Company, a corporation, to recover damages for personal injuries sustained near Booneville, Indiana on July 31, 1928. The action was brought under the Federal Employers’ Liability Act, Cahill’s St. ch. 114, jf 321 et seq., and resulted in a verdict in favor of the plaintiff in the sum of $30,000, upon which judgment was entered by the circuit court.

The declaration consisted of three counts, the third count of which was dismissed on motion of plaintiff at the end of plaintiff’s case. The first count charged that the defendant was a railroad company and employed certain servants and agents to keep and maintain its tracks in good condition and repair; that plaintiff was employed by the defendant as road supervisor in causing the roadbed and track to be ballasted; that while so employed, and at the time, exercising ordinary care for his own safety, he climbed upon one of the cars for the purpose of inspecting gravel which was to be used upon said roadbed; that said car was attached to a train consisting of seven cars and a locomotive, which said locomotive was under the care and management of an engineer employed by the defendant company; that it was the duty of the defendant to exercise ordinary care about the operation and movement of said locomotive and train, but failed to observe its duty in this regard and that by reason thereof, plaintiff, while riding upon one of said cars, was forcibly and violently thrown from said car to the ground and the train ran over plaintiff and he was injured. The second count is similar to the first with the additional allegation that the defendant “negligently caused, permitted and allowed said locomotive and cars to jerk suddenly and stop without notice or warning to the plaintiff.”

To this declaration defendant filed two special pleas to the jurisdiction. The first plea charged that to permit the suit to be maintained in' Illinois, would be a burden on interstate commerce under the Commerce Clause of the Federal Constitution; that plaintiff was not at any time a citizen or inhabitant of Illinois, but at all times a resident of Indiana; that the defendant was a railroad corporation, organized and governed under the laws of Virginia, with its principal offices at Richmond, Virginia; that plaintiff’s alleged cause of action occurred at Warrick county, Indiana; that defendant operated a road extending across Indiana and certain counties in the State of Illinois in which service could be had on the defendant; that' defendant has not at any time owned, operated or controlled any line of railroad running through Cook county, Illinois, and that the. defendant was, at the time of the accident, engaged in interstate commerce; that it would become necessary oh the trial of the cause to bring a large number of witnesses from a great distance to testify at the trial, and that this would be an unreasonable burden upqn interstate commerce.

The second plea contains the same allegations as those contained in the first plea with the further charge that the defendant at the time of the commencement of the suit maintained an office in Chicago in charge of J. P. Tocher, upon whom the alleged service of process was had by leaving a copy with him as agent of defendant; that J. P. Tocher was not at the time of said alleged service, nor before, nor since, either the president, clerk, secretary, general agent, cashier, principal, director, engineer, conductor, station agent or any agent of defendant; that Tocher had no authority to enter into any contract nor do anything on behalf of the defendant except to solicit freight for movement over such routes as would include a movement over the lines of the defendant, quote rates, and give information as to schedules and movements of trains; that the only line, of railroad operated in the State by the defendant is- in. the eastern district- of'Illinois and that no lines are in Cook county.

It is insisted as to this second plea that the action does not come under section 6 of the Federal Employers’ Liability Act, found in the Revised Statutes of the United States, under the act entitled “Railroads,” 45 USCA 56. The provision of section 6 thereof is as follows:

“Under this Chapter an action may be brought in the district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of the commencement of such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several states.”

Demurrers were sustained as to each of these pleas. There was a judgment respondeat ouster and thereupon defendant pleaded over by filing a plea of the general issue.

The first plea is based upon the proposition that, by reason of the additional cost of transporting witnesses for the purpose of trying the cause at a distant point in a State where neither the plaintiff nor defendant resides, an additional burden is cast upon interstate commerce. Counsel rely on Davis v. Farmers’ Co-Operative Equity Co., 262 U. S. 312; Atchison, Topeka & Santa Fe Ry. Co. v. Wells, 265 U. S. 101; Michigan Cent. R. Co. v. Mix, 278 U. S. 492. These cases are distinguished by the Supreme Court of Minnesota in Boright v. Chicago, R. I. & P. R. Co. (Minn.), 230 N. W. 457. The court in its opinion in that case, said:

“(2) 2. The cases upon which the defendant mainly relies in support of its claim that a trial in Minnesota will unreasonably burden interstate commerce aie Davis v. Farmers’ Co-Op. Equity Co., 262 U. S. 312, 43 S. Ct. 556, 67 L. ed. 996, and Atchison, T. & S. F. R. Co. v. Wells, 265 U. S. 101, 44 S. Ct. 469, 68 L. Ed. 928. In neither of these cases did the defendant have a line of railway or do a railway business in the state where suit was brought, except that in the Davis case, it solicited freight; nor did the cause of action upon which suit was brought arise in such state; nor was the plaintiff a resident there; nor, while unimportant here but mentioned because of what is said in paragraph 4, was the action under the Federal Liability Act. In each of them the facts stated in support of the claim of unreasonably burdening interstate commerce were more persuasive than here, for in this case the affidavit on which the motion for a dismissal is based merely states that a burden will result. To these cases may be added Michigan Cent. R. R. Co. v. Mix, 278 U. S. 492, 49 S. Ct. 207, 73 L. Ed. 470. There an accident resulting in death occurred in Michigan, where the deceased resided and was employed by the defendant in interstate commerce and under the laws of which the defendant was incorporated. The widow of the deceased employee moved to Missouri, where suit was brought. The defendant had no line of railway in Missouri and did no business there except as it solicited freight. The maintenance of the action in Missouri was held to impose an unreasonable burden on interstate commerce within the Davis case, 262 U. S. 312, 43 S. Ct. 556, 67 L. ed. 996.”

In the case at bar, the defendant company owned and operated certain of its lines in the State of Illinois and could, therefore, be sued in this State provided proper service was had upon the defendant. The fact that the plaintiff is a nonresident does not deprive him of the right to maintain an action in this State. His was an action on the case and transitory in its nature and could be brought wherever service of process could be had. The section of the Federal Statute already referred to provides that the jurisdiction of the United States in cases of this character, brought under the Federal Employers’ Liability Act, shall be concurrent with that of the several courts of the State. The Supreme Court of this State in the case of American Hide & Leather Co. v. Southern Ry. Co., 310 Ill. 524, recognized its right to entertain jurisdiction of a cause brought in Cook county against the Southern Eailway Co., the same defendant as is here defending this action, on service identical with the service had in the case at bar. We are compelled to follow the Supreme Court of this State on this question of jurisdiction and are, therefore, of the opinion that the court properly sustained the demurrer to the first plea in which it is charged that, by entertaining jurisdiction, the trial court created an additional burden on interstate commerce. Whether there was an additional burden or not, it was the duty of the trial court to entertain jurisdiction of the cause in conformity with the ruling in the case of American Hide & Leather Co. v. Southern Ry. Co., supra.

We are of the opinion that the trial court properly sustained the demurrer to the second plea of the defendant, under the ruling in American Hide & Leather Co. v. Southern Ry. Co., supra. In that case the plaintiff sued the Southern Ry. Co. in Cook county and obtained service by delivering a copy of summons to one Morris in Chicago, Cook county, Illinois and the cause was tried in that county. Defendant filed a plea in that case, charging that Morris was not its agent; that it was a nonresident defendant; that it operated lines of track through certain counties in the State of Illinois, but not in Cook county. To this plea a replication was filed and the issues tried by the court. There was a finding that Morris was employed to solicit freight shipments; that he made no contracts on behalf of the defendant and issued no bills of lading, sold no tickets and collected no money for the defendant. The facts in regard to the service were identical with the facts set forth in the plea in the case at bar. The Supreme Court held that the service was sufficient. We are necessarily governed by the law as found and laid down by our Supreme Court in that opinion. The demurrer to the second pida was properly sustained.

From the facts in the case at bar it appears that the. plaintiff was a track supervisor employed by the defendant and in charge of a work train laying ballasts. ITe had under his direct charge 84 miles of main line track and 32 miles of switch track. It was customary for this work train to proceed along the right of way, picking up different cars at different points. The work was started about 8 o’clock in the'morning and continued until the work train arrived near a bridge, on what was known as Paul Forston’s section. At this point the train ran onto a siding to let a passenger and freight train pass and to set out empties. After the passenger and freight had passed, this work train, consisting of an engine and tender, one full car of gravel next to the tender, followed by three empties and then three cars of gravel and a coach, used as a caboose, headed out onto the main track, going west until it reached the bridge where it stopped at a place where some filling was necessary. It then proceeded on over the line of track, scattering the gravel as it went. The gravel was carried in what was known as open top, drop bottom cars. These cars had drop doors through which the gravel passed on to the middle of the track. In these cars men would stand with shovels for the purpose of assisting in the unloading, in the event the gravel became clogged. A tie was placed upon the track under the rear trucks of the car, extending across the rail and, as the car moved slowly forward, this tie moving along the rails leveled off the gravel between the rails. The drop doors were set with a particular opening, so that the gravel would pass out' slowly. The engine was equipped with two kinds of air brakes used for the purpose of stopping the train. The regular air brake system operated on each car of the train and was controlled by the engineer and, when applied, operated equally on each car in the train as well as the engine. The other air brake operated on the wheels of the engine alone and was operated by the engineer and was designated as “straight air.” Evidence was introduced on behalf of the plaintiff to show that the proper operation of the train by the engineer would have required the application of the regular air brakes, which would act equally upon all of the cars of the train, but that the engineer, on the day of the accident, used the brakes •which applied to the engine only and that, as a result, any slack which there might have been between the cars was taken up in such a manner as to cause them to jerk and lurch forward.

Plaintiff at the time of the accident was 49 years of age. He was earning $245 a month and when away from home he was entitled to his expenses such as board bill, hotel rooms, etc. He had been doing the work of supervisor for about 6 years. He testified that on the morning of the accident he observed, owing to the roughness in the operation of the train, that the engineer was using straight air on the train; that at G-entryville about 8 o ’clock in the morning he told the engineer, Benner, to use the train brake because it was less dangerous and that he did not want anybody hurt; that at noon he again told the engineer to be more careful and to use the train brake instead of the dummy brake, the dummy brake being the brake which acted on the engine only.' He testified that just prior to the accident, the crew was unloading the car of gravel next to the engine and that there were three other cars of gravel back near the caboose.

At the time of the accident plaintiff testified he was upon one of the cars of gravel at the rear of the train for the purpose of inspecting it; that the train was moving very slowly at the time, not over 3 or 4 miles an hour; that he climbed over on to the foot board near the brake staff of the car and was going to go down the ladder to get on to the ground, when all at once there was a sudden jerk or sudden lurch which was unusually rough, and his hands were jerked loose from the car and he was thrown down and fell across the rail and the wheels of the oncoming car caught his left foot and crushed and mangled it; that the train must have just about stopped and' then suddenly lurched forward. He testified further that as a result of this accident his leg was amputated 6 inches above the ankle and that he was in the hospital a number of days; that his leg has since given him a great deal of trouble; that it bursts open and sloughs off, and causes him pain which runs up the leg to the knee; that if he uses his leg any length of time it becomes sore and inflamed.

Lester Shoptaugh, a witness on behalf of the plaintiff, testified that he was a member of the crew working for the defendant with the gravel train at the time of the accident; that on the day of the accident he did not believe they used the regular air brakes which operated throughout the train; that when a train is stopped by the dummy air, it gives all the cars a sudden jerk and that the last car has more jerk than the first; that at the time of the accident he was walking alongside of the car which was unloading the gravel and was watching to see if the gravel was going through; that the train came very near to a standstill and then started again hard and gave a jerk and lurched forward; that the jerk was extraordinary and harder than it had been before; that he turned and saw Taylor, the plaintiff, lying on the ground, but thought the plaintiff was looking under the train and went on for a short distance and then turned again and saw Taylor still on the ground and motioning to him; that he went back to his assistance.

Eehl, a witness for the defendant, testified that he was the conductor of the train in question at the time of the accident and that he saw a man giving a signal and walked back and saw Taylor sitting on the south side of the track; that he asked him what was the matter and that Taylor told him he was in the act of getting over the rear end of the car and there seemed to be a jerk; that he lost his balance and it jerked his hand hold loose.

Forston, a witness, called on behalf of the defendant, testified that he did not notice any extraordinary or unusual jerks in. connection with the running of the train. The witnesses Patmore, Watson, Byers and Phillips, members of the crew testified practically to the same effect.

John Benner, the engineer, testified that there was no jerk of any kind and there was no stopping of the train at the time of the accident; he denied that the plaintiff told him anything about how to use his brakes. He testified that when he went back to see Taylor after the accident, Taylor, the plaintiff, told him that he did not know how the accident happened — that he made a misstep and fell.

Benner, the fireman, testified that the movement of the engine was straight ahead with even speed with no violent jerking or backing.

Behl, a witness for defendant, testified that he was the conductor and that he did not notice any unusual jerks or jars at the time of the accident, but that the train had a steady movement. He stated on cross-examination that if there had been a sudden stop or jerk, it would have been an improper movement of the train.

Counsel for the defendant present a number of reasons for the reversal of this judgment. A number of them, however, appertain to the weight of the proof. It is insisted that plaintiff’s duties did not require him to inspect the cars of gravel while the cars were in motion and that he assumed the risk of doing his work in the most dangerous way; that there is no proof that the plaintiff’s accident was due to negligence on the part of the defendant or its servants; that the court should have directed a verdict for the defendant; that the court should have granted defendant’s motion for a new trial and in arrest of judgment.

In addition to the question raised as to the weight of the evidence and the proof required, counsel insist that the court erred in giving instruction number 7 on behalf of the plaintiff; that the conduct of counsel for the plaintiff was such as to deprive the defendant of a fair trial, and that the verdict is excessive.

Under • the Federal Employers’ Liability Act, ' Cahill’s St. ch. 114, 321 et seq., an employee of a railroad company engaged in interstate commerce assumes 'the risk of his employment, but this risk does not include such risks as are caused by the negligence of servants and employees of the company. Erie R. Co. v. Linnekogel, 248 Fed. 389; Seaboard Air Line Railway v. Horton, 233 U. S. 492; Devine v. Chicago, R. I. & P. Ry. Co., 266 Ill. 248. If the proximate cause of the accident in the case at bar was the action of the engineer in suddenly causing the train to jerk and lurch forward, then the accident was caused by reason of the negligence of an employee and, consequently, was not one of the risks assumed by the plaintiff in the course of his employment. Assumed risk as we understand it under the Federal Employers’ Liability Act, is risk arising by reason of defects in cars, engines, roadbeds, right of ways or instruments used, with which an employee may come in contact or is required to use during the course of his employment. Such an employee does not assume the risk of the negligent acts of fellow employees.

Counsel for the defendant cites the case of Atlantic Coast Line R. Co. v. Davis, 279 U. S. 34, in support of the contention that the risk was an assumed risk. The case cited, however, is easily distinguishable in that Richards, the plaintiff in that case, was injured by an iron ladder which was one of the implements or instrumentalities used by him when injured. Moreover, Richards was a volunteer, according to that case, at the time he received the injuries which resulted in his death.

The case of Delaware, Lackawanna and Western R. R. Co. v. Koske, 279 U. S. 7, is distinguishable in that the charge in that case was that the defendant negligently permitted and allowed a dangerous hole to exist between certain parts of the tracks, and while plaintiff was alighting from the engine in the course of his employment he fell into this hole. Such a situation is obviously one of assumed risk, hut in no way similar to the charge in the declaration in the action before ns. We need go no further, however, for a consideration of that question than our own Supreme Court, which has considered almost the identical question and passed on the law in the case of Devine v. Chicago, R. 1. & P. Ry. Co., 266 Ill. 248. This was an action under the Federal Employers’ Liability Act. The defendant Chicago, Rock Island & Pacific Railway was engaged in interstate commerce and the plaintiff Mason,'who was killed, was an employee standing on the top of a train giving signals to the conductor. The train was suddenly caused to stop and Mason, the deceased, was thrown from the top of the car and killed. The Supreme Court in its opinion said:

“What has been said disposes of the contention that the plaintiff could not recover because the accident was the result of an ordinary risk of employment of the deceased.. Under the Federal Employers’ Liability Act the fellow-servant doctrine was not available as a defense, and if the accident was caused by the negligence of the engineer in suddenly stopping the train with unnecessary violence the deceased did not assume the risk of such negligence. The court did not err in refusing to direct the verdict.” The facts in the case cited are so nearly similar to those in the case at bar that we feel it is controlling. It was the purpose of the Federal Liability Act to surround employees with every protection, and these Federal Acts are construed liberally in favor of the employee where their rights arise thereunder.

We are of the opinion, following the case of Devine v. Chicago, R. I. & P. Ry. Co., supra, that the case at bar was properly submitted to the jury and that it was a question of fact for its determination and, coupled with the judgment entered thereon by the trial court, we are precluded from holding other than that there was sufficient evidence for the consideration of the jury. 'We cannot say from a full consideration of the evidence that the verdict of the jury is manifestly against the weight of the evidence. We find no reversible error in the conduct of counsel during the course of the trial, nor are we of the opinion that the verdict is excessive. Plaintiff, at the time of the accident was earning $3,000 a year, together with expenses, and holding a position of considerable responsibility.

Instruction number 7, the giving of which was objected to by the defendant, was considered by the Supreme Court of this State in the case of Devine v. Chicago, R. I. & P. Ry. Co., already cited, and held good. It was in the language of the statute and the defendant itself, in its given instruction number 13, had the jury instructed fully on the same act and in the language of the identical statute. In that instruction the jury were told that the plaintiff could only recover for such negligence as was charged in the declaration or some count thereof and upon a preponderance of the evidence. The instruction did not direct a verdict, but was an informatory instruction as to the law and calling the attention of the jury to the act upon which the action was based and which formed the basis for their deliberation on the question of the liability of the defendant.

For the reasons stated in this opinion, the judgment of the circuit court is affirmed.

Judgment affirmed.

Hebel and Friend, JJ., concur.


text:
    Percy Wilson, as Trustee under Trust Agreement Dated March 1, 1927, Plaintiff-Appellant, v. Mike Locigno, Defendant-Appellee.
    Gen. No. 34,347.
    Heard in the third division of this court for the first district at the June term, 1930.
    Opinion filed December 10, 1930.
    Foreman, Bluford, Krinsley & Schultz and William J. Ryan, for appellant; Owen Rall, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

This i-s an action brought by Percy Wilson, plaintiff, as trustee under a trust agreement dated March 1, 1927, against the defendant Mike Loeigno to recover $95.63, alleged to be an instalment due upon a written real estate contract. The trial court upon motion of the defendant struck the plaintiff’s amended statement of claim on the ground that it was insufficient in law. Plaintiff elected to stand by his amended statement of claim and the trial court dismissed plaintiff’s snit and entered judgment for costs in favor of defendant, from which judgment plaintiff prayed an appeal to this court.

We are not aided in our consideration of this cause by briefs filed on behalf of the defendant.

The amended statement of claim charges that on or about December 17, 1927, plaintiff and defendant entered into a written contract which is set out in full. By this agreement plaintiff, as vendor, agreed to convey to the defendant a parcel of land if the defendant should first make the payments named therein and perform the covenants mentioned in the contract. Among other things the defendant agreed to pay $595 to the plaintiff, part of the sum being due in monthly instalments of $7.50 each on January 20, 1928 and on the 20th day of each month thereafter until the whole amount should have been paid; charges that certain payments have been made under the agreement and that at the time of the commencement of the suit there was due the sum of $100.63; that since the commencement of said snit the defendant has paid an additional sum of $5, leaving $95.63 still due. The contract contains the following provision:

“ ... this contract shall at the option of the vendor be forfeited and determined, without notice, whether time of payment has been extended or not, provided purchaser shall be in default as to such extension, if any, at the time of vendor’s exercise of said option, and the purchaser shall forfeit all payments made on this contract, and such payments shall, without notice or demand of any kind, be retained by the said vendor in full satisfaction and in liquidation of all damages by him sustained.”

We assume that the trial court was of the opinion that, under this clause, a failure of the vendee to pay an instalment would cause a forfeiture of the contract, leaving the right in the vendor to retain payment already made as liquidated damages, file a bill for specific performance, or sue for breach of contract. There is nothing, however, in the agreement stating that a failure to pay any of the instalments when due shall cause a forfeiture of the rights of the parties, with the right of the vendor to retain such payments as liquidated damages. The clause in the agreement already referred to is an optional right in the vendor which he may avail himself of if he sees fit. The vendor in this case has not seen fit to avail himself of this provision of the contract, but is seeking to enforce his right under the agreement by suing for the amount due thereunder. By the agreement the vendor agreed to turn over to the vendee a deed to the property on the final payment, and the vendee on his part agreed to make these payments as they fell due. This was a contract and the parties were bound by it. Neither was it necessary for the vendor to wait until the last instalment was due before bringing suit, and it was only necessary to tender a deed upon payment of the last instalment.

The Supreme Court of this State in the case of Gray v. Meek, 199 Ill. 136, in its opinion said:

“It is next urged by plaintiff in error that the defendant in error is not entitled to a recovery on the basis of the agreed price of the lots, but that the true measure of damages is the difference between the agreed price and the fair market value at the time Gray agreed to take and pay for the lots in question. This contention is not tenable. Meek sued on the contract, by which Gray agreed to pay the stipulated prices for the lots unsold at the expiration of the contract.”

Again in its opinion in discussing the obligation of the vendor to tender a deed, the court said: “No tender was necessary under the terms of the contract until the last payment became due, as Meek did not agree to make a conveyance until the lots were paid for. But demanding the whole amount due on these lots, he should have tendered a deed. A purchaser of property to be paid for in instalments, where there is no time fixed for the delivery of the deed, is not entitled to receive his deed until the last payment is made; nor is a purchaser obliged to part with his money before he receives the deed. (Duncan v. Charles, 4 Scam. 561; Weiss v. Binnian, 178 Ill. 241.) The lots were to be paid for, $5 down and monthly payments of not less than $2.50. The time for all payments by Cray had elapsed when suit was brought. The obligation to pay all but the last instalment was absolute and unconditional. By neglecting to enforce payment on these instalments as they became due, and by waiting until the last one became due and the time for making the conveyance had elapsed, the promise to pay the previous instalments, once absolute and independent, did not become mutual and dependent. (Duncan v. Charles, supra; Sheeren v. Moses, 84 Ill. 448.) To remedy this error, respecting the failure to tender a deed, defendant in error offers to enter a remittitur in this court for the amount of the last payment on these lots, thirty-three in number, and interest thereon, namely $94.87.”

A reading of the opinion quoted above discloses the fact that a demand having been made for the full amount, it was necessary to tender a deed. The Supreme Court, however, permitted a remittitur of the amount not yet due, and entered judgment for "the balance. To the same effect see Thurman v. Alcott, 235 Ill. App. 545; Howorth v. Mills, 62 Utah 574; Queens Park Gardens, Inc. v. Spar, 234 N. Y. S. 404.

This contract was not self-executing. The forfeiture did not take place automatically. The forfeiture, under the agreement, could not take place unless the vendor so willed it. Howorth v. Mills, 62 Utah 574.

. Under this agreement vendee was obligated to pay in monthly instalments. Vendor had the right to sue for these instalments as they fell due. Marshall v. Grosse Clothing Co., 184 Ill. 421; Commercial Casualty Ins. Co. v. Campfield, 243 Ill. App. 453.

The trial court erred in dismissing the amended statement of claim and entering judgment for the defendant.

For the reasons stated in this opinion, the judgment of the municipal court is reversed and the cause remanded with directions to vacate said judgment and grant leave to the defendant to file his affidavit of defense.

Judgment reversed and cause remanded with directions.

Hebel and Friend, JJ., concur.


author: Mr. Justice Friend

text:
    A. V. Silverthorne and Martin H. Eakle, Trading as Commercial Insurance Agency, Appellee, v. Paul Chapman, Appellant.
    Gen. No. 33,915.

      Heard in the third division of this court for the first district at the October term, 1929.
    Opinion filed December 10, 1930.
    Timothy J. Fell, for appellant; Albin A. Peters, of counsel.
    E. Egbert Fischer, for appellee; Seymour M. Lewis, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

In September, 1927, A. V. Silverthorne, plaintiff herein, advanced funds to one J. S. Bousquet for the purchase of a Cadillac automobile. Bousquet bought the car, delivered the same to Silverthorne, and entered into a so-called conditional sales agreement with Silverthorne, which contained a provision that “title to the car and extra equipment shall not pass by delivery to the buyer, but shall remain vested in and be the property of the seller or assigns, until the purchase price has been fully paid.” One thousand one hundred and twenty-five dollars was the price stipulated in the agreement. This was evidenced by Bousquet’s judgment note in the sum of $1,125, payable to Silverthorne in instalments of $50 on the 29th day of each succeeding month. Four hundred and fifty-five dollars was paid on account of said note by Bousquet, the last payment having been made on March 21, 1929. Thereafter Bousquet continued in default on his payments until the car was caused to be seized on June 6, 1929 under a writ of alias fieri facias issued out of the superior court upon a judgment rendered against Bousquet and in favor of Paul Chapman, the defendant herein. At the date of the attachment all except $75 of the entire indebtedness evidenced by the note had become due and payable. Bousquet retained constant possession of the automobile during this period and until its seizure.

It is not contended that Chapman extended credit to Bousquet in reliance upon his ownership of the car, nor that he knew of the existing conditional sales contract.

Upon the trial of the right of property the county court found for the plaintiff and entered judgment accordingly. The sole question presented for decision by this appeal is whether under the Uniform Sales Law of this State, Cahill’s St. ch. 121a, U 4 et seq., a reservation of title by the seller is good against a judgment creditor of the buyer in possession under a contract of conditional sale.

By section 20 of the Uniform Sales Act in effect June 29, 1915, Cahill’s St. ch. 121a, 23, the validity of a contract of conditional sale is expressly recognized. Section 23, in harmony with the settled law of estoppel, provides that “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.” Defendant contends that the conduct of Silverthorne in allowing Bousquet to retain possession of the car long after he had defaulted in his payments under the contract without exercising any of the rights given to the vendor under the agreement, and thus clothing him with the indicia of ownership, amounted to an estoppel within the meaning of section 23, and that as a result thereof Silverthorne should be precluded from denying Chapman’s paramount right.

The answer to this contention is twofold. Under the plain provisions of section 23, the theory of estoppel may be invoked only by a purchaser from a conditional vendee and cannot be urged, in favor of a judgment creditor. Furthermore, in order to give rise to an estoppel, it is essential that the party estopped shall have made, by act or word, a representation and that the person' setting up the estoppel shall have acted on the faith of this representation in such a way that he cannot, without damage, withdraw from the transaction. (Sherer-Gillett Co. v. Long, 318 Ill. 432.)

It appears from this record that Chapman in no way relied upon the ownership of the car by Bousquet in extending credit to him, and that Silverthorne neither said nor did anything which might be construed to constitute an estoppel. Therefore section 23 is clearly not applicable to the facts.in this case. .

It is urged, however, that a forceful analogy exists between a conditional sales contract and a chattel mortgage, and from this it is argued that the failure of Silverthorne to declare the entire debt due upon default in the payment of several instalments amounted to fraud per se as to Chapman, aside from the provisions of section 23. Dayton Scale Co. v. General Market House Co., 248 Ill. App. 279, 283, is relied upon by defendant in support of his contention. This case, however, was reversed and remanded by the Supreme Court (Dayton Scale Co. v. General Market House Co., 335 Ill. 342), upon the theory that there was a resale within the provisions of section 23, and that the cause should have been remanded to the trial court for the purpose of admitting evidence in support of defendant’s contention that the conditional vendor was estopped by his conduct from denying the seller’s authority to sell. Moreover, the analogy contended for between a conditional sale and a chattel mortgage does not operate in favor of the defendant, because under the chattel mortgage decisions in this State, the mortgagee is not obliged to' declare a forfeiture upon default in one or more of several payments, unless he sees fit to do so, but may wait until the entire debt secured by the mortgage has become due. (Keelin v. Postlewait Co., 259 Ill. 130, at 136, and cases therein cited.)

In the instant case the last instalment had not become due under the terms of the contract when the seizure of the automobile was made, and according to the provisions of the conditional sales agreement it was not incumbent on Silverthorne to exercise any of his rights until the full maturity of the debt.

For the reasons herein stated we are of the opinion that the trial court properly entered a finding and judgment in favor of the plaintiff, and the same will accordingly be affirmed.

Affirmed.

Wilson, P. J., and Hebel, J., concur.