text:
    Chicago Title and Trust Company, Trustee, Appellee, v. City of Chicago et al., Appellants.
    Gen. No. 42,779.
    Heard in the first division of this court for the first district at the October term, 1943.
    Opinion filed January 24, 1944.

      Barnet Hodes, Corporation Counsel, for appellants; J. Herzl Segal, Charles B. Collins and Sydney R. Drebin, Assistant Corporation Counsel, of counsel.
    Joseph J. Sullivan, of Chicago, for appellee.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Defendants appeal from a judgment order directing that' a writ of mandamus issue commanding them to pay to plaintiff an alleged unpaid principal balance of $21,230 on a condemnation award of $30,660, with interest on the unpaid balance, together with interest amounting to $3,482 on $9,430, deposited with the county treasurer and later accepted by plaintiff.

On April 28, 1933, in a condemnation proceeding in the county court of Cook county, instituted by the City of Chicago to acquire land for the widening of south Crawford avenue, a final judgment was entered fixing compensation for land taken, the record title to which was held by plaintiff, at the sum of $30,660 and confirming assessments for special benefits against property of plaintiff not taken in the sum of $21,230. On June 1,1934, in accordance with an ex parte order entered in the condemnation proceedings, the City of Chicago applied $21,230 of the condemnation award to the payment in full of the assessments and canceled and extinguished them. At the time of the entry of the condemnation award the real estate involved was, and for several years prior thereto had been, subject to a mortgage originally securing the payment of $334,000, evidenced by certain promissory notes, all of which, except the last in the principal sum of $134,000, had been paid in full — the principal amount unpaid at the time of the condemnation award being in excess of $80,000.

In May 1935 the owner and holder of the unpaid note instituted foreclosure proceedings, alleging default in the payment of principal and interest commencing in October 1930, and, in general taxes for the years commencing 1928, and without making any allegation as to unpaid special assessments. Plaintiff, a party defendant to the foreclosure proceeding, permitted a decree to be entered against it by default. April 19,1939 all the real estate secured by the mortgage, excepting certain portions thereof released therefrom by agreement of the parties, was sold under the decree of foreclosure to Louis J. Behan for $130,000, leaving a deficiency of $308.42. The lien of this deficiency decree as to the property condemned for the widening of south' Crawford avenue was released by Behan to plaintiff October 19, 1942. In September 1940, pursuant to ex parte orders in the condemnation proceedings, the City of Chicago deposited with the county treasurer of Cook county $9,430, being the difference between the full condemnation award and the amount credited on special assessments, for the use and benefit of the owner or owners of, and parties interested in the property taken by condemnation.

November 5,1942 plaintiff instituted this mandamus suit. On the following day, without notice to defendant City of Chicago, plaintiff procured an order in the condemnation proceedings in the county court directing the county treasurer to pay to plaintiff the $9,430 previously deposited on account of the compensation theretofore awarded. November 21,1942 this sum was paid to plaintiff by check delivered to its attorney, who signed a receipt therefor — stamped upon a copy of the county court order directing payment — reciting in bold type that the amount was received “as full compensation for all right, title and interest in and improvements on the property described in the within order,” and thereafter the check was received and accepted by plaintiff.

Defendants contend that plaintiff and the owner and holder of the unpaid note secured by the mortgage acquiesced in and ratified the payment and cancellation-of the special assessments upon the remainder of the property owned by plaintiff and covered by the mortgage, and in the sale of the premises in the foreclosure proceedings received full benefit of the money applied in payment of the special assessments and that plaintiff is now entitled only to the sum of $3,482, being the interest on the $9,430 from the date of the judgment until the deposit of that sum with the county treasurer. Plaintiff insists that it was entitled to payment in money of the full amount of the condemnation awards, without set-off or reduction on account of the assessment rendered against plaintiff’s remaining property; that its attorney signed the receipt for the $9,430 without reading it and without knowing that it purported to be in full payment of compensation awarded, and that he lacked authority to accept the check as full payment, and that plaintiff is entitled to payment of the full amount credited on the special assessment and to the interest as specified in the judgment order for the writ of mandamus.

That the City lacked authority to set off the special assessments against the condemnation awards is now definitely settled. In Cohen v. City of Chicago, 377 Ill. 221, it was held that condemnation awards must be paid in money, and the case of Kamberos v. City of Chicago, 366 Ill. 471, in so far as it held that the property owner was only entitled to receive the net amount of the judgment, arrived at by deducting from the compensation award the amount of the assessment against the portion of the property not taken, was reversed. However, as held in the Cohen case, the right to receive payment of the award may be waived, and the controlling question in the present case is whether or not plaintiff had acquiesced in and ratified the action of the City in applying $21,230 of the condemnation award in payment and cancellation of the special assessment for benefits against the property foreclosed.

Where property taken by condemnation is subject to a mortgage the award stands as a substitute for the property and the rights of the mortgagee to the extent of his mortgage are superior to the rights of the mortgagor or owner of the property in the money award. Calumet River Ry. Co. v. Brown, 136 Ill. 322; Union Mut. Life Ins. Co. v. Chicago & W. I. R. Co., 146 Ill. 320; City of Chicago v. Gage, 268 Ill. 232; City of Chicago v. Salinger, 317 Ill. App. 542. The mortgage in the present case contained the usual provisions obligating the mortgagor to pay all taxes, special assessments, etc., levied against the mortgaged property, and in the event of his failure so to do, authorizing the mortgagee to pay same and to add the amount thus paid, with interest, to the mortgage indebtedness. The amount in default on the mortgage note was several times the amount of the award, and the holder of the note could have rightfully demanded payment of the award to it, and whatever part of the award such owner may have used in payment of taxes or special assessments against the mortgaged property would have become an additional indebtedness under the mortgage. This was not done directly. A foreclosure decree was obtained, based upon defaults in the payment of principal, interest and taxes; the property was sold subject to unpaid taxes but free and clear of special assessments ; the amount bid therefor was within a few hundred dollars of the indebtedness fixed by the foreclosure decree and taxable costs. We must presume that this amount represented the entire value. People v. Anderson, 380 Ill. 158; Ogle v. Koerner, 140 Ill. 170. It necessarily follows that it sold for the full $21,230 more than it would have brought had the special assessment against it not been paid and canceled. Therefore, both plaintiff and the owner of the mortgage note were benefited to that amount.

Through the entire foreclosure proceeding, extending over four years, plaintiff silently acquiesced in the cancellation of the special assessment against its property and received the benefit of that cancellation and placed the defendant City of Chicago in a position where, if plaintiff is permitted to recover the $21,230 now claimed by it, the City of Chicago will he making a double payment of the amount to plaintiff. Furthermore, plaintiff after the institution of the suit accepted the $9,430 received from the county treasurer “As full compensation for all right, title and interest in and improvements on the property” taken by condemnation. Plaintiff’s attorney insists first, that this sum' was not received as full compensation because he did not read the receipt signed by him, and therefore was ignorant of its contents, and second, that he lacked authority to sign such receipt. Being able to read, and with eyesight good, as he testified, and without any suggestion of fraud or circumvention preventing him from reading it, the law does not permit him to deny knowledge of the contents of the receipt he signed. Chicago R. I. & P. Ry. Co. v. Hamler, 215 Ill. 525, 531; Shulman v. Moser, 284 Ill. 134, 139; Spina v. Spina, 372 Ill. 50, 58. While it is true that an attorney does not by reason of his employment have authority to compromise a claim of his client, the evidence shows and plaintiff’s pleadings admit that plaintiff received and accepted this check pending the mandamus suit and, so far as the record shows, still retains it. The photostatic copy of the check in evidence shows that it bore on its face the notation “Satif. Co. Ct. No. 60673,” which is an abbreviation of “Satisfaction, County Court No. 60673,” the condemnation proceeding in which the award was made. With the record further establishing that plaintiff, as stated above, had already received full benefit of the $21,230 now claimed, we must hold that it is estopped to deny authority in its lawyer to accept from the county treasurer his check “As full compensation for all right, title and interest in and improvement on” the property taken. Wether bee v. Fitch, 117 Ill. 67; First Nat. Bank of Las Vegas v. Oberne, 121 Ill. 25, 29, Alton Mfg. Co. v. Garrett Biblical Institute, 243 Ill. 298, 311.

As in the Cohen case, the question whether such payments under the circumstances ymre accepted in full satisfaction of the awards and all interest accrued thereon, is not involved, because defendants do not so contend. In their briefs defendants admit liability for interest on the $9,430 from the date of the judgment in 1933 until the deposit of that sum with the county treasurer in September 1940. The same reasoning which prompts acknowledgment of this liability requires admission of liability for interest on the $21,230 from the date of the judgment to the date of the payment and cancellation of the special assessment, there being no evidence of interest accrued on the assessment.

The judgment of the superior court is reversed and the cause remanded with directions to award the writ only for unpaid interest, as indicated above.

Reversed and remanded with directions.

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


source: Caselaw Access Project

author: Mr. Justice Niemeyer

license: Public Domain

text:
    Morticians’ Acceptance Company, Inc., Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 42,806.

      Heard in the first division of this court for the first district at the October term, 1943.
    Opinion filed January 24, 1944.
    Hoyne, O’Connor, Rubinkam & Melaniphy, of Chicago, for appellant; Nathaniel Rubinkam, John C. Melaniphy and Melvin L. Gibbard, all of Chicago, of counsel.
    George S. Lavin, of Chicago, for appellee.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Plaintiff company, buying accounts due undertakers, brought suit in equity against the defendant company to recover for amounts claimed to be due on a number of assignments of benefits payable on industrial policies, and obtained a decree for $4,479.99 and costs. Defendant appeals, contending that the assignments were void because prohibited by the terms of the policies ; that they purported to assign only a part of the benefits; and the assignors lacked an assignable interest in the benefits.

The terms and provisions of the policies aré substantially the same, as are the facts relating to the assignments. Upon the death of the assured a husband, wife or blood relative made arrangements with an undertaker for the funeral; the costs having been determined, a judgment note for the amount payable to the undertaker was executed and delivered, together with the insurance policies and an assignment of enough of the benefits payable thereunder to cover the funeral expense; the undertaker, by proper indorsement and assignment, transferred the note, insurance policies and assignment of benefits to the plaintiff, who issued its check for the amount assigned, less 7 per cent, its charge for the service. Formal notice of the assignments together with executed copies thereof were sent to defendant, who immediately returned them with a letter stating: “In view of the policy provision against assignment, we return the enclosed document considering it ineffective for this and other reasons.” Each of the policies contained a provision that “Any assignment or pledge of this policy or of any benefits hereunder shall be void and of no effect,” and a facility of payment clause, a typical example of which is as follows: “The company may make any payment or grant any non-forfeiture privilege provided herein to the insured, husband or wife, or any relative by blood or connection by marriage of the insured, or to any other person appearing to said company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured, or for his or her burial; and the production of a receipt signed by either of said persons, or of other proof of such payment or grant of such privilege to either of them, shall be conclusive evidence that all claims under this policy have been satisfied. ’ ’

The benefits under the policies issued on the lives of ten of the persons insured were paid by defendant to persons making the assignments, they being persons within the classes named in the facility of payment clauses. The benefits under the policies issued on the lives of three persons insured were paid to persons other than the assignors.

In Standard Discount Co., Inc. v. Metropolitan Life Ins. Co., 321 Ill. App. 220, opinion filed this day, we held that provisions in insurance policies against assignment of benefits were void as to assignments made after the death of the insured. Enforcement of partial assignments in equity has been the established practice so long that citation of authority in support of it should not be necessary. However, we refer to Pomeroy v. Manhattan Life Ins. Co., 40 Ill. 398 (1866) where an assignment of a part of the money due under a life insurance policy was held valid as an equitable assignment and protected accordingly. The controlling question here is the validity of assignments made by persons within the classes of beneficiaries under the facility of payment clause before election of a beneficiary has been made by the insurer. In policies of the character involved the facility of payment provisions are for the protection of the insurer. In McDaniels v. Western & Southern Life Ins. Co., 332 Ill. 603, the court said (605, 606): “The facility of payment clause, as indicated by its language, gave an option to the insurer to make any payment or to grant any non-forfeiture provision to any relative by blood or connection by marriage of the insured, or to any person who has incurred an expense or obligation on behalf of the insured or for the burial of the insured. Such clause in an industrial policy, usually issued for a small amount, is authorized in order to protect the insurance company, with the consent of the insured, against trifling but expensive litigation which might constantly occur over disputes as to parties entitled to the amount of the insurance, and where the company has exercised that option such exercise will be a complete defense under the terms of the policy. Bradley v. Prudential Ins. Co., 187 Mass. 226; Thomas v. Prudential Ins. Co., 148 Pa. St. 594.” It was there held that, until the company had by some overt act exercised its option to select a beneficiary, the right to sue on the policy was vested in the personal representative of the insured and not in the niece, who had paid the premiums on the policy and to whom the insured, by written instrument attached to the policy reciting that it “is not to vary in any way or alter the terms and conditions contained in said policy, especially the ‘facility of payment’ provision therein,” had authorized the company to pay the benefit. To like effect are Bishop v. Prudential Ins. Co., 217 Ill. App. 112; Pioneer Trust & Savings Bank v. Metropolitan Life Ins. Co., 278 Ill. App. 113; Voris v. Rutledge, 297 Ill. App. 383. In the Voris case, payment of benefits was governed by a standard facility of payment clause ; plaintiff, a divorced wife of the insured, who had paid some of the premiums on the policy and who had a judgment against the insured for alimony, obtained a decree in a suit in which the insurance company and the administrator and heirs of the insured were parties, awarding her the full amount due on the policy but directing her to pay the funeral expenses. In reversing the decree the court said (387, 388): “The error in this case seems to be in the failure to distinguish between the right to receive under the facility of payment clause and the right to demand thereunder. This clause is for the protection of the insurer and while it might and does have the option to pay the fund to some one other than the beneficiary named in the policy it is not compelled to do so. . . . It makes no difference that appellee had a judgment against the insured for alimony, or that she paid the premium on the policy. That does not give her a right to sue. It only argues that she is in the class of those who had a right to receive the fund had the company elected to pay it to her under the above clause.”

The assignors of benefits under the policies before us had no greater rights than the plaintiffs in the cases from which we have quoted. They belonged in the class of those who had a right to receive the respective funds if the company should elect to make payment to them under the facility of payment clause. This was a right to receive, not a right to demand. It was a possibility, or, at most, an expectancy. Their position is not unlike that of an heir in respect to the estate of his ancestor. The heir may expect to receive a share of the estate but he cannot demand it, and the ancestor may dispose of the estate to others. Equity recognizes this expectancy or possibility, of receiving all or a part of the estate as assignable, and if an assignment is made in good faith for a valuable consideration, will enforce it after the death of the ancestor. 3 Pomeroy’s Eq. Jur. (3rd ed.) secs. 1287, 1288; 3 Story’s Eq. Jur. (14th ed.) sec. 1395; Jarvis v. Binkley, 206 Ill. 541; Crum v. Sawyer, 132 Ill. 443, 460. Here the assignments were made in good faith and for a valuable consideration. There is no element of fraud or overreaching. The insured were buried, apparently at a reasonable cost. The insurance company was not obliged to recognize the assignments or the assignors ’ obligation for the funeral expenses in exercising its option to designate the person to whom the benefits under the respective policies should he paid. But, when in the exercise of its option it designated the assignors as the beneficiaries under the policies, the assignors’ expectancy or possibility of interest in the benefits became vested, subject to the assignments theretofore made, and the insurance company, with full notice of these assignments, made in consideration of the burial of the insured, should not be permitted to ignore them. Warren v. First Nat. Bank of Columbus, 149 Ill. 9, 23; Graham v. Southern Ry. Co., 173 Ga. 573, 161 S. E. 125; Todd, v. Meding, 56 N. J. Eq. 83, 92. In Geddes & Moss Undertaking & Embalming Co. v. Metropolitan Life Ins. Co. (La. App.), 167 So. 209, in a substantially similar situation, a like conclusion was reached. There the company had issued five policies on the life of the insured, each payable to the executor or administrator and each having a facility of payment clause; subsequently Pauline Bhinehart, a daughter of the insured, was designated as beneficiary of three of the policies by an indorsement on the policies reading as follows: “Subject to the provisions of the policy authorizing payment at the Company’s option to other persons Pauline Rhinehart, daughter, has been designated beneficiary to receive death benefits only.” Upon the death of the insured the daughter assigned all her right, title and interest in the five policies to plaintiff, in consideration of funeral services performed and materials furnished by plaintiff. Notwithstanding notice of the assignment, the insurance company paid all the benefits under each of the policies to Pauline Bhinehart. The court after stating that the insurance company had a right to pay the benefits of the policies to anyone within the categories named in the facility of payment clause and that such payment would constitute full discharge of its obligation under the policy, said: “It was under no obligation here, for example, to pay Pauline Bhinehart, the daughter of the insured, who was, of course, a blood relative, but it might have done so, and such payment would have constituted a bar to any action by any other person claiming an interest in the policy. But it could not do so after having received notice of the assignment of Pauline Bhinehart’s interest in the policies to a third person, without involving itself with liability to the assignee. We make no distinction between the policies in which Pauline Rhinehart was named beneficiary and those in which she was not, because she had an interest in all of the policies, a little different, as we have seen, in two of them, but whatever beneficial interest she had in each and every policy was assigned by her to the plaintiff. It was only because of this interest, active, passive, or receptive, in the policies, that the insurer paid her the proceeds. This interest she had assigned and the insurer had notice of the assignment, according to the allegations of the petition, before the money was paid to her. Payment by the debtor to the assignor, after notice of the assignment, is no defense to the claim of the assignee.” The decree of the trial court, as to the liability of the defendant company to the plaintiff on the assignment of benefits which the company elected to pay to the assignors after notice, is affirmed.

A different ruling must be made in respect to the assignments of benefits which were paid to persons other than the assignors within the classes named in the facility of payment clause. In two of these — policies issued on the lives of Ella B. Strange and Gadis Lee — assignments of benefits were made by a brother of the insured, but payments were made to another brother of Ella B. Strange and to the mother of Gadis Lee. In the third, assignment of benefits under the policies on the life of Linnie Miller were made by her nephew, Luther Thomas, individually, and payment was made to him as administrator. In selecting these beneficiaries the company was acting within the power given it by the facility of payment clause, and when it designated persons other than the assignors no interest in the benefits ever vested in the assignors, and plaintiff, assignee, acquired nothing by the assignments. The fact that Luther Thomas, administrator, was the same individual as Luther Thomas, assignor, does not help plaintiff. Payment to Thomas, individually, would have made him the owner of the fund, free to dispose of it as he chose. Payment to him as administrator was payment to him in a representative capacity, and the fund became liable for the payment of funeral expenses and other debts, if any,' of the insured, and Thomas would benefit individually only as an heir of the insured and after payment of all debts. The decree is erroneous in so far as defendant is held liable for principal and interest on the assignments of benefits under policies on the lives of these three persons.

Defendant’s contention that it is entitled to a credit of $1,300 which it claims plaintiff owed. Williamson the undertaker cannot be sustained.

The decree is affirmed in part, reversed in part and the cause remanded with directions to enter a decree in accordance with this opinion.

Decree affirmed in part, reversed in part and cause remanded with directions.

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


author: Mr. Justice Wolfe

text:
    Edgar J. Herbolsheimer, Appellant, v. Albert J. Herbolsheimer, Appellee, and H. Frank Herbolsheimer, Appellant.
    Gen. No. 9,911.
    Heard in this court at the October term, 1943.
    Opinion filed January 26, 1944.

      Paul D. Perona, of Spring Valley, for certain appellant.
    John J. Massieon and Francis T. Duncan, both of Peru, and John G. Armstrong, of Ottawa, for certain other appellant.
    R. L. Russell, of Princeton, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court. ■

On December 18, 1941, Edgar Herbolsheimer filed a suit in the circuit court of Bureau county seeking the partition of certain lands that he and his brothers, Albert J. Herbolsheimer and H. Frank Herbolsheimer owned as tenants in common. One tract of land the brothers had inherited from their father and mother, and the other tract they had purchased as tenants in common. The partition suit is in regular form and no question is raised in regard to the pleadings. Albert J. Herbolsheimer filed his answer and admitted most of the facts, as set forth in the petition, but denied that it was necessary to file a partition suit, as the land could be divided equitably between the three brothers. He claims that all the debts of his father and mother had not been fully paid. He also alleges in his answer that there were rents, issues and profits from the farms, which had not been accounted for, or distributed among the heirs and asked that an accounting be taken and the proper distribution made of the same.

The other brother, H. Frank Herbolsheimer, filed his answer and admitted all the material facts alleged in the complaint relative to the partition suit, but alleged that there was money due him from the mother’s estate to the amount of $840, which.he claims was two years’ rent that he paid to his mother during her lifetime, and after the mother’s death he again paid this amount to his brothers on their demand, and asked to have an accounting taken in this matter, and the same allowed as a claim against the proceeds of the sale of the land. He also charged that the plaintiff and Albert J. Herbolsheimer had received large sums of moneys as rents from the premises and had not accounted for it and asked that an accounting be taken in regard to those items and that he be given his proportionate share of said rents. H. Frank Herbolsheimer denies that all the debts of the said widow, Margaret Herbolsheimer, have been paid. He alleges and states the fact to be that his claim against the estate of John H. Herbolsheimer and Margaret Herbolsheimer for certain moneys, etc., have not been paid; that certain notes of Albert J. Herbolsheimer, payable to the mother, have not been paid.

H. Frank Herbolsheimer also filed a counterclaim in which he set forth numerous items he claims should be allowed to him for money expended, and for work and labor performed on the farms, which are the subject matter of the partition suit. The plaintiff and Albert J. Herbolsheimer each filed separate replies to the answer and counterclaim of said H. Frank Herbolsheimer. They deny that H. Frank Herbolsheimer is entitled to anything from the mother’s estate, and specifically deny the $840 item which is claimed to be an overpayment of rent. By agreement, the property was sold. The matter of accounting being reserved for the further consideration of the court.

One tract of land sold for $14,135.36; another tract for $22,723.00, making a total of $36,858.36. By agreement, the accounting was taken before the trial court and the following stipulation was entered into before the evidence was taken.

Stipulation :

It is stipulated by and between all parties interested in these proceedings, all being personally present in open court, as well as being represented by their respective attorneys, that for the purpose of making a full and complete adjustment of the matters and things pertaining to any differences between the parties hereto in connection not only with the rents involved in the matter of the real estate herein, but also of the matters which pertain to moneys received or expended on behalf of John B. Herbolsheimer or Margaret Herbolsheimer, father and mother of the parties hereto, that the court will for such purpose take jurisdiction, hear evidence and decide the following points:

“1. The matter of the double rent payment as alleged to have been made by H. Frank Herbolsheimer.

2. The matter of the distribution and settlement of certain Donovan trust deed notes.

3. The matter of the allowance or disallowance of about $120.00 to H. Frank Herbolsheimer for personal services alleged to have been performed by him.

4. The matter of certain notes signed by Albert J. Herbolsheimer to Margaret Herbolsheimer.

5. The matter of the allowance or disallowance of a certain alleged claim for services made by Albert J. Herbolsheimer.

6. The matter of the allowance or disallowance of two doctor’s bills, one to Dr. Utts and one to Dr. Cooper.

7. The matter of the allowance of about $153.00' each to Frank Herbolsheimer and Edgar Herbolsheimer by Albert J. Herbolsheimer as a Dalance due on a certain settlement made. ’ ’

Evidence was heard to sustain tHe different contentions of the claimants, and the cunre found that H. Frank Herbolsheimer was not entitled to the $840, which he claimed was double rent; that Albert J. Herbolsheimer’s claim for $936 was not a proper claim against the widow, Margaret Herbolsheimer, and the same was disallowed; that the notes executed by Albert J. Herbolsheimer to his mother, are not a valid claim against him and were disallowed; that there was a balance due to Edgar J. Herbolsheimer and H. Frank Herbolsheimer of $153 from Albert J. Herbolsheimer in the settlement of the mother’s estate, and should be paid to Edgar J. Herbolsheimer and H. Frank Herbolsheimer out of Albert J. Herbolsheimer’s distributive share of her estate.

H. Frank Herbolsheimer filed an appeal claiming the court erred in not allowing his claim of $840, and also for not holding that the notes signed by Albert J. Herbolsheimer were a valid claim against Albert J. Herbolsheimer’s share of the estate, and that judgment should have been entered against him for the amounts of the notes and interest. Edgar J. Herbolsheimer has joined with his brother, H. Frank Herbolsheimer, in the appeal relative to the notes, signed by Albert J. Herbolsheimer.

Albert J. Herbolsheimer has filed a cross-appeal alleging that the court erred in not allowing his expense account from Minneapolis, Minnesota, to Bureau county, Illinois.

The evidence discloses that on October 19, 1931, the father of the parties to this suit died, leaving three children and a widow'; that there was no administration had upon his estate, and shortly after his death, the mother and children entered into an agreement whereby the mother was to retain possession of the farm. She did so, and continued living there until her death, which occurred on July 4, 1939. There was no administration of her estate. During the pendency of this suit it was agreed among the parties that the court should take jurisdiction in regard to the subject matter of the suit, and hear evidence and adjust the differences between the three brothers. All of the parties were before the court. Each told his version relative to the respective claims. The dhancellor not only heard the witnesses testify, but observed their manner and demeanor, relative to the subject matter of the suit, and toward each other.

Relative to the claim of H. Frank Herbolsheimer against the two brothers and the overpaid rent, we think the court ruled properly that it was not a proper claim against his mother’s estate.

In regard to Albert J. Herbolsheimer’s claim, it seems strange that he would let this account run from year to year when he had the money on hand so he could reimburse himself if he saw fit to do so, and still made no claim for it until the time of the accounting. We think the court properly held that this was not a proper claim against the estate.

The notes in question signed by Albert J. Herbolsheimer were found by the brother, H. Frank Herbolsheimer, in the sum of about $1,605. The notes were executed in 1919. There are no written pleadings so far as the statute of limitations on these notes is concerned. Ordinarily the statute of limitations to be available as a defense, must be especially pleaded. Fyffe v. Fyffe, 350 Ill. 620, at page 623. When these notes were introduced in evidence, Albert J. Herbolsheimer objected to their introduction, because they show on their face that they were barred by the statute of limitations. At that time the court reserved his ruling on the admissibility of these notes. The abstract does not disclose any rulings at a later date, as to the admissibility of these notes. However, the court evidently, by the disallowance of the same, considered that the statute was a bar in this proceeding. After the evidence was all in, Albert J. Herbolsheimer filed a long motion in writing asking that all the testimony in regard to these notes be stricken, contending that the court had no jurisdiction to pass upon this matter. Neither the abstract nor the record discloses any ruling by the court on this motion. Certainly Albert J. Herbolsheimer is not in a position to raise the question of the jurisdiction of the court after submitting the case to the court under the written stipulation of all the parties of the suit. Another reason why Albert J. Herbolsheimer is not in a position to question the jurisdiction of the trial court, is that he has filed a cross-appeal in the Appellate Court, alleging that the chancellor failed to find in his favor on his claim for expenses in coming from his home in Minnesota, tó Bureau county, Illinois, to see his mother on business. „

The evidence discloses that Albert J. Herbolsheimer at the time of executing the notes in question, lived in the State of Minnesota and the notes were payable at his mother’s residence in Bureau county, Illinois. It is insisted by the other brothers that because Albert was a nonresident of the State of Illinois, the statute of limitations would not apply and would be no defense for the payment of the notes. Whether this is a good defense, we do not decide for there is another reason why the statutes do not apply. This suit started as a partition suit and the brothers entered into a stipulation to have the chancellor hear and adjust the different claims of the brothers, which were due to the mother’s estate. He had jurisdiction of the subject matter and of the parties to the litigation. It is stipulated that he should adjust the matters between the parties, and the payments, if any, should be paid out of the proceeds of the sale in the partition suit.

It is stated in the case of Fleming v. Yeazel, 379 Ill. 343, that the defense of the statute of limitations is not available' to an heir of an estate when the executor or administrator is seeldng to collect notes due from one of the heirs, or charge the amount of the notes against the distributive share of the heir. On page 346, we find this language: ‘ ‘ The right of an executor to deduct such an indebtedness is based upon the equitable principle that no one should be permitted to share in a fund until he has discharged his obligation to contribute to that fund. Here appellants already have funds of the estate in their hands in the form of indebtedness owed .to it. To allow them to escape payment of their debt and at the same time receive a full distributive share of the estate, would serve to increase their share by the amount of their indebtedness. . . . The executor has the right to deduct debts of legatees though suit for same be barred by the statute of limitations.”

There is no claim- that these notes did not represent a bona fide indebtedness of Albert J. Herbolsheimer, or that the same have not been paid, or are debts that he owes to his mother’s estate. It would be inequitable to allow him to retain the amount of these notes and still participate equally with his brothers in the proceeds of the estate. It is our conclusion that the court erred in not finding that these notes of Albert J. Herbolsheimer, together with interest thereon, were a valid claim against Albert J. Herbolsheimer.

The decree in favor of Albert J. Herbolsheimer is- hereby reversed, but in all other respects the decree is affirmed.

Affirmed in part and reversed in part.


text:
    John R. Snively, Appellant, v. P. T. Crownover, Appellee.
    Gen. No. 9,929.
    Heard in this court at the October term, 1943.
    Opinion filed January 26, 1944.

      John R. Snively, pro se.

    Louis F. Reinhold, of Freeport, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

John B. Snively started suit against P. T. Crown-over in the circuit court of Stephenson county, for rent due, and damage alleged to have been caused to the demised premises, by the defendant. The complaint filed on April 21, 1942, consists of two counts. The first count alleges that on August 25, 1939, a written lease was entered into between the Federated Construction "Bureau and the defendant, wherein certain premises were leased for one year, to be used as a dwelling house, at a stated rental of $45 per month; that said lease was for a valuable consideration, assigned and transferred to the plaintiff; that said defendant entered into possession of said premises and continued to occupy the same after the expiration of the time mentioned in the lease, and continued paying-monthly rent for the same, until March 3, 1941, when he abandoned the premises; that by the terms of the lease, the tenant became a tenant from year to year, and has failed to pay the rent for April, May, June, July and August 1941, and owes the plaintiff the sum of $225.

The second count is practically the same as the first count with exception as to the payment of the rent. The second count alleges that the lease provided that at the expiration of the time mentioned in the lease, or upon a termination thereof, by forfeiture or otherwise, the tenant was to return the premises in as good condition as they were when he entered upon them, loss by fire, etc., excepted; that he would keep said premises in good repair at his own expense, and restore the. premises with glass of like quality in all of, the windows thereof, in as good condition as the same were; that he would not injure or deface the building; or permit the same, or any part, to be injured or defaced ; that notwithstanding the said covenant in said lease, the defendant injured and defaced the walls, floors, doors, woodwork, linoleum, window glass, storm window fasteners, and the furnace in the building, or permitted the same to be done, and failed to restore the same in as good condition as it was when he entered upon the premises; to the damage of the plaintiff of $1,500. The second count was amended so as to make it more specific as to the claims by the plaintiff, because of the injury to the buildings, etc.

The defendant filed an answer and states four separate and distinct defenses to plaintiff’s cause of action. “ First — That through error, fraud or mistake there had not been incorporated in the lease the agreed provision that said lease should be considered as a lease from month to month unless bus transportation facilities became available passing the demised premises to enable two sons of defendant to attend school; and that before August 25, 1940, the date of the expiration of the lease in question, plaintiff, assignee of said lease, was apprised of the aforesaid arrangements by the defendant; that plaintiff and defendant then agreed upon said conditions and arrangements; that is, that the tenancy under the lease under which defendant was holding over was a month to month tenancy provided bus facilities did not become available for defendant’s children. Second — That in the month of February, 1941, no such bus transportation facilities having become available, said defendant on March 3, 1941, vacated said demised premises, surrendered the same to plaintiff, paid the rent in the sum of $45.00 for the said month of March, 1941, to plaintiff and that plaintiff accepted the possession of said premises and the March rent. Third — -That plaintiff upon the surrender of the demised premises to him did not take proper and reasonable steps to re-rent said premises. ■ Fourth — That defendant did not in any manner injure or deface, any part or parts of the buildings on the demised premises and that the same were surrendered to plaintiff in as good condition as when entered, excepting only as to inevitable accident and ordinary wear.”

The case was set for trial on March 18, 1943, before a jury. On March 16, 1943, the defendant filed a motion to dismiss the suit for failure of the plaintiff to file a reply to the affirmative matter set forth in his answer. The court sustained the motion and dismissed the complaint and rendered judgment in favor of the defendant and assessed the costs of the suit against the plaintiff. It is from this judgment that this appeal is prosecuted.

On the same day that the motion to dismiss was decided, the appellant filed a motion for leave to file a reply to the affirmative matter set forth in the answer of the defendant, and at that time presented the reply, which he wished to file. The court refused to allow the reply to be filed. It is insisted by the appellee that this motion for leave to file a reply was not presented until' after the court had ruled on his motion to strike. The rules of this court provide in part as follows: “ A record to be filed on appeal or on petition for leave to file shall be arranged in a chronological order substantially as follows: Copies of process of service, pleadings, orders, motions, affidavits and verdict, etc. ’ ’ The record, as filed in this case, shows that the • motion for leave to amend the complaint and to file a reply to the affirmative matter set forth by the defendant appellee was filed before the court ruled upon the motion to strike. This court is bound by the record as it appears, and must assume the motion to amend was filed before the court passed on the motion to strike. Section 170, chapter 110 of SmithHurd’s Ann. Stats, being 46 of the Civil Practice Act [Jones Ill. Stats. Ann. 104.046], the first paragraph of said section is as follows: “At any time before final judgment in a civil action, amendments may be allowed on such terms as are just and reasonable, introducing any party who ought to have been joined as plaintiff or defendant, discontinuing as to any plaintiff or defendant, changing the cause of action or defense or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross demand.”

It has been the policy of the courts of this State that the trial court should be liberal in its ruling to amend pleadings, made in the furtherance of justice. We think the court should have allowed this reply to have been filed.

The fourth paragraph of the defendant’s answer tenders an issue to the second count of the plaintiff’s complaint. There was no new matter set forth in the fourth paragraph of the answer, but it is purely a denial of the plaintiff’s charge that the defendant had damaged the premises at the time that he occupied them under the lease.

It is our conclusion that the court erred in dismissing the complaint of the plaintiff, but should have allowed him to file his reply, also that an issue of fact was presented as to the second count of the plaintiff’s declaration that should have been submitted to the jury for its consideration.

The judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.


author: Presiding Justice Friend.

text:
    Fred J. Brown, Appellee, v. Joseph Zaubawky, etc., et al. Marciona Zaubawky, Also Known as Marciona Zaubawczes, Appellant.
    Gen. No. 42,605.
    Heard in the .second division, first district, this court at the April term, 1943;
    opinion filed December 14, 1943;
    rehearing denied February 2, 1944.
    Joseph A. Ricker, for appellant; Z. H. Kadow, for appellee.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


author: Justice Dove.

text:
    Alf Leif, Administrator of Estate of Carl Leif, Deceased, Appellee, v. Joseph B. Fleming and Aaron Colnon, Trustees, Appellants.
    Gen. No. 9,930.

      Heard in this court at the October term, 1943;
    opinion filed December 28, 1943;
    rehearing denied January 31, 1944.
    Stafford & Schoede and Edward C. Schoede, for appellants; Milton V. Thompson, of counsel; Huber & Reidy, Peter R. Ingelson and Edward J. Turnbaugh, for appellee; Isador I. Katz, of counsel.
   Opinion by

Justice Dove.

Not to be published, in full.


text:
    J. L. Oakes, Jr., Appellee, v. Chicago Fire Brick Company, Appellant.
    Gen. No. 42,449.
    Heard in the second division, first district, this court at the October term, 1942;
    opinion filed January 18, 1944.
    Alfred Roy Hulbert, for appellant; Levinson, Becker, Peebles & Swiren, for appellee; Don M. Peebles and Robert A. Sprecher, of counsel.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    Blakely Printing Company, Appellee, v. Fort Dearborn Mercantile Company, Appellant.
    Gen. No. 42,596.

      Heard in the second division, first district, this court at the April term, 1943;
    opinion filed January 18, 1944.
    Bullinger, Michels & Dicus, for appellant; R. A. Bullinger and Frank Michels, of counsel; Harry M. Brostoff, for appellee; Harold J. Finder and J. Norman Goddess, of counsel.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    Duncan Meter Corporation, Plaintiff, v. Parking Meter Corporation of America et al., Defendants. Harvey Shaw, Appellee, v. Duncan Meter Corporation, Appellant.
    Gen. No. 42,615.
    Heard in the second division, first district, this court at the April term, 1943;
    opinion filed January 18, 1944;
    rehearing denied February 2, 1944.
    Samuel G. Rautbord and Hutton, Clark & Hutton, for appellant; Jack E. Dwork, Harry G. Fins and Stephen Love, for appellee.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    In re Estate of Frank Dombrowski, Alleged Incompetent Person. Frank Dombrowski, Appellant.
    Gen. No. 42,664.
    Heard in the second division, first district, this court at the June term, 1943;
    opinion filed January 18, 1944;
    rehearing denied February 2, 1944.
    Schnackenberg, Hansen & Towle, for appellant; Elmer J. Schnackenberg, of counsel; Posanski, Lelivelt & Gross and John E. Pavlik, for appellees; Roman E. Posanski and John E. Pavlik, of counsel.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    City of Chicago, Appellee, v. Great Lakes Dredge and Dock Company, Appellant.
    Gen. No. 42,715.
    Heard in the second division, first district, this court at the June term, 1943;
    opinion filed January 18, 1944.
    McKinney, Folonie & Grear, for appellant; C. Oscar Carlson, of counsel; Barnet Hodes, Corporation counsel, for appellee; J. Herzl Segal and L. Louis Karton, Assistant corporation counsel, of counsel.
   Opinion by

Presiding Justice Friend.

Not to be published In full.


text:
    Morris Investment Company, Appellant, v. Kathryn Weaver and Chicago Title and Trust Company, Appellees.
    Gen. No. 42,775.
    Heard in the second division, first district, this court at the October term, 1943;
    opinion filed January 18, 1944.
    Chapman, Silverberg & Anixter, for appellant; Deming, Jarrett & Mulfinger, for appellee Kathryn Weaver.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    Elizabeth Taylor, Appellee, v. Boston Store, Appellant.
    Gen. No. 42,790.
    Heard in the second division, first district, this court at the October term, 1943;
    opinion filed January 18, 1944.
    Abraham B. Litow, for appellant; A. L. Williams, for appellee.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


author: Justice Scanlan.

text:
    Lessie Cook, Administratrix of Estate of Cleveland Stokes, Deceased, and Anna Stov-Stokes, Appellants, v. Pullman Company et al., Defendants. Onzelle Harris, Appellee.
    Gen. No. 42,169.
    Heard in the second division, first district, this court at the February term, 1942;
    opinion filed January 18, 1944.
    A. L. Williams, for appellants; Max C. Liss and Nat M. Kahn, for appellee.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    Elmer Kreger, Appellee, v. George W. Diener Manufacturing Company, Appellant.
    Gen. No. 42,176.
    Heard in the second division, first district, this court at the April term, 1942;
    opinion filed January 18, 1944.
    Austin E. Torney, for appellant; Harry F. Brewer, of counsel; Miller, Gorham, Wescott & Adams, for appellee; Charles F. White and Frederic W. Heineman, of counsel.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    Charles B. Periolet, Appellee, v. City National Bank and Trust Company of Chicago et al., Defendants. Aaron Colnon, Receiver, Appellant.
    Gen. No. 42,208.
    Heard in the second division, first district, this court at the April term, 1942;
    opinion filed January 18, 1944.
    Burt A. Crowe, for appellant; Royal W. Irwin, for appellee.
   Opinion by

Justice Scanlan.

Not to be published in full.


author: Presiding Justice O’Connor.

text:
    Edward Good, Appellee, v. Louis Behrendt, Appellant.
    Gen. No. 42,738.

      Heard in the first division, first district, this court at the October term, 1943;
    opinion filed January 24, 1944;
    rehearing denied February 8, 1944.
    Andrew J. Farrell, for appellant; Miller & Moss, for appellee; Kellam Foster, of counsel.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


text:
    Leo Awotin, Appellant, v. Meyer Abrams et al., Appellees.
    Gen. No. 42,760.
    Heard in the first division, first district, this court at the October term, 1943;
    opinion filed January 24, 1944;
    rehearing denied February 8, 1944.
    Harris, Reinhardt & Bebb, for appellant; Herbert Bebb, of counsel; Shulman, Shulman & Abrams and Mayer Goldberg, for appellees; Meyer Abrams, of counsel.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


text:
    People of the State of Illinois, Defendant in Error, v. John Wilson, Plaintiff in Error.
    Gen. No. 42,774.

      Heard in the first division, first district, this court at the October term, 1943;
    opinion filed January 24, 1944.
    Francis J. Callahan, for plaintiff in error; W. G. Anderson, of counsel; Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Opinion by

Presiding Justice O’Connor.

Not to be published, in full.


text:
    Sylvester J. Domino, Appellant, v. National Casualty Company, Appellee.
    Gen. No. 42,803.
    Heard in the first division, first district, this court at the October term, 1943;
    opinion filed January 24, 1944.
    Isidore Fried, for appellant; Bernard A. Stol, of counsel; Donald M. Roche, for appellee.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


author: Presiding Justice O ’Connor.

text:
    Hazel Fry, Appellant, v. Northwestern Mutual Life Insurance Company and Fine Arts Building, Appellees.
    Gen. No. 42,812.
    Heard in the first division, first district, this court at the October term, 1943;
    opinion filed January 24, 1944.
    Fry & Fry, for appellant; Stanley L. Shetler, for appellee; Errett O. Graham, of counsel.
   Opinion by

Presiding Justice O ’Connor.

Not to be published in full.


text:
    Nicholas Nudelman, Appellee, v. Samuel Mayer Haimowitz, Also Known as Samuel Homan, Appellant.
    Gen. No. 42,823.
    Heard in the first division, first district, this court at the October term, 1943;
    opinion filed January 24, 1944.
    Gilruth & Beck, for appellant; James Nudelman and Jerome J. Sladkey, for appellee.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


author: Justice Matchett.

text:
    People of the State of Illinois, Defendant in Error, v. Edward Sturch, Plaintiff in Error.
    Gen. No. 42,690.
    Heard in the first division, first district, this court at the June term, 1943;
    opinion filed January 24, 1944;
    rehearing denied February 8, 1944.
    George M. Crane and Emmett A. Moynihan, for plaintiff in error; Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, Richard B. Austin and Alex J. Napoli, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice Matchett.

Not to be published in. full.


text:
    Nathan Finder, Appellee, v. Morris Miller and Company, Inc., Appellant.
    Gen. No. 42,747.
    Heard in the first division, first district, this court at the October term, 1943;
    opinion filed January 24, 1944;
    rehearing denied February 8, 1944.
    Morton B. Hochberg, for appellant; Harry M. Kroon, for appellee.
   Opinion by

Justice Matchett.

Not to be published in full.


text:
    People of the State of Illinois, Defendant in Error, v. George E. Blameuser, Plaintiff in Error.
    Gen. No. 42,764.
    Heard in the first division, first district, this court at the October term, 1943;
    opinion filed January 24, 1944.
    Emmet F. Byrne, for plaintiff in error; Clyde C. Fisher, of counsel; Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice Matchett.

Not to be published in full.


text:
    Emily Nepil, Appellee, v. Joseph Zeman, Appellant.
    Gen. No. 42,792.
    Heard in the first division, first district, this court at the October term, 1943;
    opinion filed January 24, 1944.
    George A. Bosomburg, for appellant; Guy C. Guerine, for appellee.
   Opinion by

Justice Matchett.

Not to be published in full.


text:
    Patrick D. Casey et al., Appellees, v. Walter J. McGuire and Vernon M. Welsh, Stock Trustees, Appellees, Ernestine Kahn, Appellee, M. H. Case, Appellant.
    Gen. Nos. 42,800, 42,825.
    Heard in the first division, first district, this court at the October term, 1943;
    opinion filed January 24, 1944.
    Thomas Dodd Healy, for appellant; Edward Atlas, of counsel; Aronson & Aronson, for certain appellees; J. Henry Aronson and Leo E. Aronson, of counsel; Kirkland, Fleming, Green, Martin & Ellis, for certain other appellees; Joseph B. Fleming, Vernon M. Welsh and Wayne F. Swonk, of counsel; Alster, Berger & Wald, for certain other appellee; Simon H. Alster and Jerome S. Wald, of counsel.
   Opinion by

Justice Matchett.

Not to be published in full.


text:
    A. A. Excavating Company et al., Appellees, v. First United Finance Corporation et al., Appellants.
    Gen. No. 42,697.
    Heard in the first division, first district, this court at the October term, 1943;
    opinion filed January 24, 1944;
    rehearing denied February 8, 1944.
    McCabe, Abrahams & Daly and Ode L. Rankin, for appellants; Jacob G. Grossberg and Julius L. Kabaker, for appellees.
   Opinion by

Justice Matchett.

Not to be published in full.


author: Justice Niemeyer.

text:
    People of the State of Illinois ex rel. Joseph Horejs et al., Appellees, v. George Stedronsky, President, et al., Appellants.
    Gen. No. 42,809.
    Heard in the first division, first district, this court at the October term, 1943;
    opinion filed January 24, 1944.
    E. Marvin Capouch, Albert Mysogland and Markman, Donovan & Sullivan, for appellants; Thomas C. Donovan, of counsel; Michael F. Ryan, for appellee.
   Opinion by

Justice Niemeyer.

Not to be published in full. •


text:
    Ann Jessie Blackman, Administratrix with Will Annexed of Estate of Oliver J. Blackman, and Individually, Appellant, v. Illinois Central Railroad Company et al., Appellees.
    Gen. No. 42,753.
    Heard in the first division, first district, this court at the October term, 1943;
    opinion filed January 24, 1944.
    Braden, Hall, Barnes & Blakey, for appellant; Houston H. Hall and Alvin H. Moss, of counsel; John W. Freels and Herbert J. Deany, for certain appellee; Abraham Lepine, for certain other appellee; A. A. McKinley, for certain other appellee.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    People of the State of Illinois ex rel. Joseph Horejs et al., Appellees, v. George Stedronsky, President, et al., Appellants.
    Gen. No. 42,780.

      Heard in the first division, first district, this court at the October term, 1943;
    opinion filed January 24, 1944.
    E. Marvin Capouch, Albert Mysogland and Markman, Donovan & Sullivan, for appellants; Thomas C. Donovan, of counsel; Michael F. Ryan, for appellees.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    In re Estate of Eli Daiches, Deceased. Belle T. Daiches, Executrix of Estate of Eli Daiches, Deceased, Appellant, v. Isaac B. Lipson, Appellee.
    Gen. No. 42,789.
    Heard in the first division, first district, this court at the October term, 1943;
    opinion filed January 24, 1944;
    rehearing denied February 8, 1944.
    Robert D. Melick and Julius Rieger, for appellant; Concannon, Dillin, Snook & Arthur, for appellee.
   Opinion by

Justice Niemeyer.

Not to be published in full.


text:
    Gateway Securities Company, Appellee, v. Ermie Schultz, Appellant.
    Gen. No. 42,796.
    Heard in the first division, first district, this court at the October term, 1943;
    opinion filed January 24, 1944.
    John B. King and Herbert M. Wetzel, for appellant; Lawson, McNally & Tuohy, for appellee; Thomas J. McNally, of counsel.
   Opinion by

Justice Niemeyer.

Not to be published in full.


author: Justice Wolfe.

text:
    Geneva West and Ronald West, Appellees, v. Samuel Porritt, Jr., Appellant.
    Gen. No. 9,902.
    Heard in this court at the October term, 1943;
    opinion filed January 26, 1944.
    Clarence W. Heyl and Burrel Barash, for appellant; Nelson & Gustafson, for appellees.
   Opinion by

Justice Wolfe.

Not to be published in full.


author: Mr. Justice Bristow Mr. Presiding Justice Culbertson

text:
    J. W. Robertson, Appellee, v. New York Central Railroad Company, Appellant.
    Culbertson, P. J., dissenting.
    Heard in this court at the October term, 1943.
    Opinion filed October 30, 1943.
    Rehearing denied February 23, 1944.
    Wheatley & Combe, of Harrisburg, for appellant; Samuel W. Baxter, Charles P. Stewart and Thomas A. McCormack, all of Cincinnati, Ohio, of counsel.
    Gordon Franklin and Stone & Fowler, all of Marion, for appellee.
   Mr. Justice Bristow

delivered the opinion of the court.

This cause is here on an appeal from a judgment of the circuit court of Saline county in favor of plaintiff appellee in the sum of $1,500. The judgment entered therein is a result of a suit brought by the appellee (hereinafter referred to as plaintiff) against the defendant appellant, herein (hereinafter referred to as the defendant) to recover damages in the sum of $2,600 for personal injuries, to the plaintiff himself, and $300 damages to his truck, as a result of a collision between the north bound local freight train, of the defendant and the plaintiff’s truck. The truck was being operated by the plaintiff, and the accident occurred at the defendant’s railroad crossing in the small village of Stonefort, Saline county, Illinois, at noon time on February 2, 1942.

The complaint filed by the plaintiff contained the usual charges of negligence, namely, excessive speed; failure to blow a whistle and ring bell; failure to keep a proper lookout, etc., and there were two counts charging the defendant through its servants with certain wilful and wanton acts or omissions, and more specifically that the defendant through its engineer, then and there seeing approaching said crossing the truck in which the plaintiff was then and there riding, wilfully and wantonly propelled and drove his said locomotive and train of cars toward and upon said crossing without blowing a whistle or ringing a bell and at an excessive rate of speed and without keeping a proper lookout for persons and vehicles approaching said crossing. The defendant’s answer to this complaint was a general denial of all charges of negligence and wilful and wanton misconduct, and in addition thereto averred that the proximate cause of the plaintiff’s injuries was his own contributory negligence.

Briefly, the trial of this case developed the following factual situation; the plaintiff was the owner of a 1937 model panel Chevrolet truck which had just been loaded with 24 sacks of flour at his general store which was located in the village of Stonefort, Illinois. This store was situated on the east side of U. S. Highway No. 45, an 18 foot slab of concrete running in a northeasterly and southwesterly direction through said village. This store was located adjacent to Chestnut street which ran east and west along the north side of said store and on west across the aforementioned highway No. 45 and still further.west some 95 feet intersecting two tracks of the defendant railroad company. The plaintiff, upon leaving his store, drove his truck into Chestnut street and turned to his left and proceeded west to Route 45 and stopped at a stop sign which was located about 15 feet east of said highway, to let a Ford automobile go by. He then proceeded across said highway and westwardly on Chestnut street in second gear until he reached the defendant’s railroad tracks where he was struck by a daily local freight train of the defendant which consisted of an engine and about 17 freight cars which was proceeding in a northerly direction. At the point of the collision there were two sets of tracks, the east track being the main track while the west one was used for switching purposes.

Chestnut street at the point in question is about 20 feet wide, is constructed of gravel and dirt and at the time of the accident was covered with many holes 6 to 12 inches deep making the surface very rough. About 15 feet to the east of the tracks was located the usual cross-buck warning signal.

The plaintiff testified that the last time he looked southwardly or in the direction of the on coming train was when he was 40 feet east of the east rail of the main track, and that he did not see or hear a train coming, and that he then looked north and when he turned back he was struck. He further testified that he never stopped or slowed down his truck which was traveling from seven to ten miles per hour. There was nothing in the mechanical condition of the truck or the condition of the weather that could be designated a contributing cause of the accident. The plaintiff also testified that he was familiar with Chestnut street, he having owned and operated the store from whence he started for more than two years.

Without burdening this opinion with a detailed description of all the physical objects surrounding the scene of the accident, suffice it to say that the undisputed testimony discloses that from a point 50 feet east of the east rail of the main track and from the center of Chestnut street, one can see a man standing in the middle of the main track 208 feet south of the center of Chestnut street, and that 40 feet east one can see the same object 309 feet; 30 feet east that object is visible 608 feet south; 25 feet east one can see as far as the whistling post which is 1,800 feet south. At a point 20 feet east of the said main track one can see as far south as the human vision will permit. The record also discloses the fact that a truck similar to the one of the plaintiff’s, driven at the rate of 10 miles per hour, with good brakes, and on a road similar to the one in question, can be stopped within the distance of 8 feet upon the application of the foot brakes and can be stopped in its tracks if the emergency brake is applied. The plaintiff was a young man 34 years of age, in good health and with unimpaired faculties of seeing and hearing. He received as a result of the accident serious injuries consisting of six fractured ribs, lacerations on the back of his head four inches in length, a fracture of the exterior condyle of the left humerus., a sprained right anide and considerable shock and he is now still afflicted with a crooked left arm, stiff in the elbow, which is a permanent condition.

On behalf of the plaintiff there was evidence that the train was traveling at an unusually fast rate of speed, that there was no whistle blown nor bell rung. On behalf of the defendant the fireman and engineer testified that the bell rang continuously from 1,800 feet south of the crossing in question and that the station whistle was blown 300 feet south of that point, and that all crossing whistles were blown right up to and including Chestnut street, the scene of the accident. The engineer testified that he saw the plaintiff’s truck first when it was about 40 feet east of the main track, and that it was traveling very slowly, from 5 to 10 miles per hour and that when the truck was about 15 feet east of the tracks, he saw that an accident was inevitable and applied the emergency brakes. At the time the brakes were applied the front of the train was only about 15 feet south of the center of Chestnut street. Several witnesses on behalf of the defendant in addition to the train crew testified that the train was traveling at its usual rate of speed namely 30 to 35 miles per hour. On behalf of the plaintiff furthermore there was testimony that there were certain obstructions immediately north of Chestnut street on the east side of the main tracks and near thereto, so as to obstruct the plaintiff ’s vision to the north, and further when the plaintiff was from 20 to 40 feet to the east of the main tracks he met a car going east which traveled on the south half of the highway and that said automobile obstructed plaintiff’s vision to the south. Plaintiff’s counsel argues with some seriousness that since this other car passed over the crossing safely that plaintiff perhaps was deceived into thinking that he could do likewise unharmed. Appellant in his reply brief concluding that such was a childish argument quoted from First Corinthians 13th Chapter, 11th Verse, “When I was a child I spake as a child, I understood as a child, I thought as a child, but when I became a man I put away childish things. ’ ’ Both the plaintiff and defendant in their briefs devote considerable space in an effort to characterize the testimony of opposing witnesses as negative but we are of the opinion that there was about as much testimony of a negative and positive character on one side as the other and that on all issues of fact presented to the jury, it was peculiarly within the jury’s province to determine the credibility of those witnesses and the weight to be attached thereto.

The defendant strenuously insists that the trial court erred in not having directed a verdict on counts one and two charging ordinary negligence at the close of the plaintiff’s case, since the proof clearly showed that the plaintiff was guilty of contributory negligence. We are of the opinion that the defendant should be sustained in this view. The proof conclusively shows that when the plaintiff was 40 feet from the crossing he could and should have seen the approaching train, that it was well within his range of vision at that • time. The reasoning in the case of Greenwald v. Baltimore & Ohio R. Co., 332 Ill. 627, in our opinion is sound and logical and is peculiarly applicable to this case. Quoting from the Greenwald case on page 631, the court said:

“The rule has long been settled, in this State, that it is the duty of persons about to cross a railroad track, to look about them and see if there is danger, and not to go recklessly upon the track, but to take proper precaution to avoid accident. It is generally recognized that railroad crossings are dangerous places, and one crossing the same, must approach the track with the amount of care commensurate with the known danger, and when a traveller on a public highway, fails to use ordinary precaution, while driving over a railroad crossing, the general knowledge and experience of mankind condemns such conduct as negligence.”

The court again, on page 632 in the same case said:

1 ‘ One who has an unobstructed view of an approaching train is not justified in closing his eyes or failing to look, or in crossing a railroad track in reliance upon the assumption that a bell will be rung or a whistle sounded. No one can assume that there will not be a violation of the law, or negligence of others, and then offer such assumption as an excuse for failure to exercise care. The law will not tolerate the absurdity of allowing a person to testify that he looked, but did not see the train, where the view was not obstructed, and when, if he had properly exercised his sight, he must have seen it.”

And again, the court said in the same opinion:

“In this case, it seems clear, from the testimony of appellant’s witnesses, taken in its most favorable light, that appellant’s agents, had they continued to look toward the southeast, after going upon the tracks, would have seen the approaching train in ample time to have avoided the collision. Appellant’s evidence, most favorable to him, is that when standing on the first, or south track, which the testimony shows is from 30 to 40 feet south of the third track, on which the collision occurred, one can see at least 200 feet in the direction from which the train was approaching. Neither of appellant’s servants, testified that after going upon the first, or south, track, they again looked toward the southeast, until they were crossing the second track. It seems clear that had they done so, the collision would have been avoided. They testify that they heard no sound of warning, such as the blowing of a whistle or the ringing of a bell. The duty resting upon one who crosses -a railroad track is not only to listen, but to look, and the fact that no bell was rung, or whistle blown, if such was the fact, would not excuse him from using due care to look in the direction from which a train might be coming, and, in this case, had appellant’s servants done so, it seems clear that the collision would have been avoided.”

We are therefore of the opinion that the trial court erred in not having directed a verdict for the defendant on counts one and two at the close of the plaintiff’s case.

Next let us consider whether the defendant was guilty under the third and fourth counts of the complaint charging wanton and wilful misconduct. The engineer testified that when his engine was about 280 feet south of the crossing in question, he saw the plaintiff approaching traveling in a westward direction at a very slow rate of speed. By the very nature of the movement of his train and the vehicle, he would reasonably know that if the truck and the train continued at their respective rates of speed they would arrive at the crossing at the same time. It furthermore would not be unreasonable for the engineer to know that if he did not give any warning of any kind that the driver of the truck might • not know of the approach of the train. Notwithstanding this most perilous situation, the engineer continues on, entirely heedless of the safety of the truck driver and does not blow his whistle nor ring a bell. At least the above factual situation is developed if the jury believed the plaintiff’s witnesses. We do not think that it requires a citation of authorities to sustain the view that the foregoing presents a clear question of fact' for the jury to determine on the wanton and wilful issue. There was considerable positive evidence that neither warning was given, notwithstanding the appellant’s continued insistence that there was none. Authority for the recovery by a plaintiff in a case of this kind on the wanton and wilful issue can be found in the case of Bernier v. Illinois Cent. R. Co., 296 Ill. 464, and Brown v. Illinois Terminal Co., 319 Ill. 326. In the latter case where the factual situation is quite similar to the one at bar the court had this to say:

“The engineer saw the plaintiff approaching the road, with his back to the east, until he turned south on the crossing, but assuming plaintiff would stop before reaching the track neither slackened speed nor sounded a warning, and the conductor, who was on the oil tank car, says he never saw plaintiff until he was on the track. Plaintiff was only a few feet from the railroad track when he drove on the highway. The engineer saw him before he reached the highway and must have known he could not pass over the railroad track before the train arrived at the crossing. He assumed plaintiff would stop until the train had passed before passing over the track. Plaintiff should have done so if he was warned or knew of the approaching train, but it was the duty of defendant’s servants to give warning of the train’s approach to the crossing by ringing the bell or blowing the whistle. That plaintiff ought to have known of the approach of the train did not relieve defendant of the duty of warning him of its approach. Under the decisions of this court, whether injury was the result of the willful and wanton conduct of defendant was, under all the evidence, a question of fact for the jury, and the court did not err in refusing to direct a'verdict as to the counts charging willfulness and wantonness. In Chicago, Burlington and Quincy Railroad Co. v. Murowski, 179 Ill. 77, the court said whether failure to ring a bell or sound a whistle before starting a train within the city limits, in violation of the statute or an ordinance, is willful or wanton, is a question of fact for the jury, and it is not the province of a court to say, as a matter of law, that the omission was not willful. Defendant’s railroad had only a few miles of track, wholly in Madison county. Its business was to receive loaded cars from industries along its line and deliver them to a connecting carrier for shipment to destinations, and also to receive and deliver empty cars consigned to the industries it served. It therefore did not run trains on regular schedule, which would give some notice to the public.

“We do not think that under all the circumstances shown by the proof the court would have been warranted in deciding, as a matter of law, that there was no evidence tending to prove the charge of willfulness and wantonness. If we are correct in this conclusion it is unnecessary to discuss the question argued in the briefs whether plaintiff was guilty of contributory negligence.”

Appellant relies mainly upon the case of Provenzano v. Illinois Cent. R. Co., 357 Ill. 192, as authority for its contention that the failure of defendant’s servants to ring a bell or blow a whistle was mere negligence and cannot support a charge of wantonness or wilfulness. The court in that case made the observation that there was no positive evidence that the warnings by the whistle or bell were not given and surely we are not to understand the law on the subject to be that no matter what the circumstances are that surrounds the wilful violation of a statute or the wilful omission to perform a duty that there can be no case of wanton and wilful misconduct. We are therefore of the opinion that the trial court did not err in entering judgment for the plaintiff and against the defendant in the sum of $1,500. Greene v. Noonan, 372 Ill. 286. At page 291 the court announces the following rule:

“That where the complaint consists of several counts, one or more of which state a cause of action the gist of which is malice, with others based upon negligence only, and the verdict is general, without specifying the count on which it is based, the presumption is that the verdict is based upon a cause of action of which malice is the gist.”

Applying this to the present situation the verdict of the jury is presumed to be based upon the third and fourth counts, and those being the ones which we hold warrants recovery the judgment should be affirmed. Some criticism is made by the appellant of certain instructions but they are directed mainly at propositions of law that pertain to the first and second counts, and since we have held that there can be no recovery on the negligence counts in this case it is unnecessary to consider the merits of those contentions.

Judgment affirmed.

Mr. Presiding Justice Culbertson

dissenting: I must dissent from the conclusion of the majority opinion as to the third and fourth counts of the complaint, charging wilful and wanton misconduct. I do not believe that the facts in this record justify a finding that the engineer was guilty of wilful and wanton misconduct, or that a question of fact was presented for the jury to determine such issue.

The factual situation in this case is not similar, in my judgment, to that found in Brown v. Illinois Terminal Co., 319 Ill. 326, referred to in the majority opinion, in view of the physical situation of the crossing and the testimony of some of the witnesses that warning signals were given, particularly to the effect that the bell rang continuously from 1,800 feet south of the crossing, and that the whistle was blown 300 feet south of that point, and that all crossing whistles were blown, up to and including Chestnut street, the scene of the accident, coupled with the testimony of the engineer that when he first saw the plaintiff’s truck it was about 40 feet east of the main track and was traveling very slowly and that when he saw that an accident was inevitable he applied the emergency brakes.

In my judgment, based upon the precedents in the Supreme Court of this State (Provenzano v. Illinois Cent. R. Co., 357 Ill. 192), a verdict should have been directed as to the third and fourth counts of the complaint and the judgment entered in the circuit court should have been reversed in this court.


author: Mr. Justice Stone

text:
    Walter Reinhardt et al., Appellees, v. Security Insurance Company of New Haven, Conn., Appellant.

      Heard in this court at the October term, 1943.
    Opinion filed October 30, 1943.
    Rehearing denied February 23, 1944.
    Samuel Levin, of Chicago, and Walter E. Ackermann, of Belleville, for appellant.
    John R. Sprague and James O. Miller, both of Belleville, for appellees.
   Mr. Justice Stone

delivered the opinion of the court.

This is an action to recover on a standard fire insurance policy for $1,000 issued by defendant, on a building occupied and to be occupied only for dwelling purposes, which was issued to plaintiffs, Sebastian Huskamp and Rose Huskamp, who sue for the full amount of the policy for loss sustained by the destruction of this building by fire on June 16, 1934.

This policy contained a mortgage clause providing that loss under this policy should be payable tó F. W. Schneidewind, trustee, who is named therein, as his interest may appear, and who held a mortgage on the premises on which this building was situated that secured a note of the Huskamps for $600, and the other plaintiff, Frank Reinhardt, trustee, sues as assignee of Schneidewind and claims that he is entitled to an equitable lien upon any judgment which plaintiff, Huskamp, obtained for the amount of this policy.

The case was tried upon a second amended complaint. The original complaint was filed June 2, 1935, which was a year after the fire, lacking four days and by Frank Reinhardt, trustee as sole plaintiff. He alleged that the Huskamps had refused to join in the action and he made them parties defendant; service was had upon them but they filed no pleading.

Thereafter, on September 23,1935, an amended complaint was filed in which, in addition to Reinhardt, the Huskamps were made parties plaintiff and the insurance company the sole defendant. No leave of court was asked or given to make the Huskamps parties plaintiff, and upon defendant making a motion to strike this amended complaint on that ground, this complaint was stricken. Plaintiffs elected to stand on this amended complaint. Thereupon the court dismissed the suit and entered judgment against plaintiffs for costs from which judgment they prosecuted an appeal to this court, which judgment was reversed on the ground that defendant’s motion was limited to and only questioned plaintiffs’ right to transpose the Huskamps from parties defendant to plaintiff and that the court should have limited its order in the same way and struck their names as parties plaintiff from the amended complaint. It was held error to dismiss the suit in bar of the action. Reinhardt v. Security Ins. Co. of New Haven, Conn., 287 Ill. App. 320.

Thereafter the case was tried upon the second amended complaint, and at the conclusion of the evidence offered by plaintiff, and without any evidence being offered by defendant, the trial court, on motion of defendant, entered judgment for defendant, from which judgment, defendants appealed, and this court reversed and remanded the case for further proceedings. Reinhardt v. Security Ins. Co. of New Haven, Conn., 312 Ill. App. 1.

Upon the second trial of the cause, a finding was made in favor of plaintiff on the issues, and judgment was entered in favor of plaintiff Reinhardt for $600 and interest in the amount of $357 up to June 19,1942, a total of $957, and judgment was entered in favor of plaintiffs Huskamp for $43, the balance found due and payable on the insurance contract sued on, and $391.70 interest at 5 percent after August 16, 1934, a total of $434.70, from which judgment, the present appeal is prosecuted to this court. After judgment, on the suggestion of the death of plaintiff Reinhardt, there was substituted for him, as parties plaintiff, Walter Reinhardt and Gus Reinhardt, executors of the last will and testament of Frank Reinhardt, deceased.

On May 17, 1933, the defendant through A. S. <Vien, its local agent, issued and delivered to plaintiffs Sebastian Huskamp and Rose Huskamp, who were husband and wife, its policy of insurance by which it agreed to insure them from May 17, 1933 to May 17, 1936, against loss or damage by fire in an amount not exceeding $1,000 to “a one story . . . frame building” located on real estate near East St. Louis. The policy stated that the building was then “occupied and to be occupied only for dwelling purposes.” The policy contained provisions to the effect that it would be void if assigned by the insured before a loss, or if the hazard be increased by any means within the control of knowledge of the insured, or if any change took place in the possession of the subject of the insurance (except change of occupancy without increase in hazard); that if fire occurred the insured should render a written report of loss within 60 days after the fire, that no suit or action on the policy should be sustainable unless commenced within 12 months after the fire, and that no agent should have power to waive any of the provisions or conditions of the policy except by such waivers as should be in writing and attached to the policy.

The policy had attached thereto, a ‘ ‘ standard mortgage clause” No. 127, dated May 17,1933 and executed by the defendant by such local agent, the material provisions of which were:

(1) “Loss or damage, if any, under this policy shall be payable to F. E. Schneidewind, Trustee, ... as interest may appear, and this insurance, as to the interest of the mortgagee (or trustee) only therein, shall not be invalidated by any act or neglect of the mortgagor . . . nor by the occupation of the premises for purposes more hazardous than are permitted by this policy . . '. .”

(2) “Provided also, that the mortgagee (or trustee) shall notify this company of any change of . . . occupancy or increase of hazard which shall come to the knowledge of said mortgagee (or trustee) and . . . it shall be noted thereon, and the mortgagee (or trustee), shall, on demand, pay the premium for such increased hazard . . . .”

Prior to the delivery of the policy on December 19, 1932, Mr. and Mrs. Huskamp had executed and delivered to Schneidewind, trustee, a mortgage dated December 19, 1932, on said real estate to secure their note for $600 and interest, payable on December 19, 1935. The principal of such note, plus interest since December 19, 1933, remains unpaid.

On or about May 17, 1933, and after receiving such policy, Mr. and Mrs. Huskamp delivered the same to Schneidewind, trustee, as collateral security for the indebtedness secured by the mortgage.

On September 22, 1933, by written assignment of that date, Schneidewind, trustee, assigned the mortgage and the indebtedness thereby secured to Frank Reinhardt, trustee, and at the time of such assignment Schneidewind, trustee, delivered to Reinhardt, trustee, the mortgage and the note thereby secured, and the insurance policy in question, with such loss clause so attached, — such note being indorsed by Schneidewind, trustee, “without recourse.” The written assignment of mortgage made no mention of the insurance policy or of the mortgage clause attached. Schneidewind made no other written assignment, either on the policy or on the loss clause, or otherwise. Defendant did not know until after June 16,1934, that Reinhardt had acquired such mortgage, note and policy.

On June 16, 1934, while still owned by Mr. and Mrs. Huskamp and while said mortgage and indebtedness were owned and held by Reinhardt, trustee, and while. such policy and loss clause were also held by him, the building described in the policy was destroyed by fire.

At the time the policy was issued the property was and thereafter continued to be occupied by a tenant, as a dwelling only, until one Chaney moved on said real estate about three months before the fire. Thereafter Chaney, as a tenant of Mr. and Mrs. Huskamp, occupied the property for about two months, as a dwelling only, and thereafter for another month and at the time of the fire Chaney as such tenant occupied the building as a dwelling and tavern in which beer and the usual intoxicating liquors were sold.

Mrs. Huskamp knew the property was going to be and was during such last month occupied as a tavern. The record is silent as to knowledge on the part of her husband, but we will assume he had the same knowledge. Neither Schneidewind nor Eeinhardt had any such knowledge.

It is contended on behalf of defendant that more than a year had run when either the first or second amended complaints were filed, and that the filing of the original complaint was likewise ineffective in stopping the running of the period of limitation in this policy, as to plaintiff Eeinhardt. It is also contended with reference to the cause of action of plaintiff Eeinhardt that he is not entitled to judgment because of the fact that the allegation of the complaint was, that he was entitled to an equitable lien on the sum of $1,000 due from defendant to plaintiff Huskamp, and that he does not ask for any judgment and cannot be entitled to a judgment. On the former trial of this case in this court (Reinhardt v. Security Ins. Co. of New Haven, Conn., 312 Ill. App. 1) we held that plaintiff Eeinhardt, made a prima facie case entitling him to judgment for the amount due him as assignee of the mortgage indebtedness. The rule of law is, that when litigation is prosecuted to an appellate tribunal and questions of law are decided, all such questions relating to the same subject matter, which were open to consideration and could have been presented are res judicata, whether they were presented or not. This is true whether the judgment was reversed and remanded, or the judgment affirmed. City of Chicago v. Collin, 316 Ill. 104. We do not deem it necessary to discuss further questions of law, which were or could have been presented on the previous appeal to this court, involving the right of plaintiff Eeinhardt to recover.

It is also contended that neither of the Huskamps were party plaintiff to the original complaint but were defendants; that the first amended complaint was filed September 23,1935, and more than a year after the fire, and the second amended complaint was filed May 10, 1937, almost three years after the fire, so that under the one year provision of the policy, this action was barred by the limitation contained in the policy. The original complaint and the amended complaint set forth the interests of the Huskamps as well as of Eeinhardt and all the amendment did was to change Huskamps ’ position from defendants to plaintiffs. Under Illinois Civil Practice Act, sec. 46 (2) (Ill. Rev. Stat., ch. 110, par. 170 [Jones Ill. Stats. Ann. 104.046]) the cause of action, cross demand or defense set up in any amended pleading shall not be barred by lapse of time under any statute or contract, limiting the time within which an action may be brought, and if it appears from the original and amended pleading that the cause of action grew out of the same transaction, set up in the original pleading any such amendment shall be held to relate back to the date of the filing of the original pleading so amended. Under this section, the amendment to the complaint will be held to relate back to the date of filing of pleading amended and thus prevent the action being barred by lapse of time, when such pleading was defective in failing to allege performance of some fact or some other matter which is a necessary condition precedent to recovery, when such condition precedent has in fact been performed. Friend v. Alton R. Co., 283 Ill. App. 366. We are therefore constrained to hold that the substitution of the parties from defendant to plaintiff, did not create the bar of limitation under the policy.

It is argued on behalf of defendant, that the policy was rendered void by plaintiffs Huskamp using one room as a tavern when the express provision of the policy was to the effect that the building was to be used only for dwelling purposes. Reinhardt and Schneidewind had no knowledge of the increase of hazard or change of occupancy and were not bound under the mortgage clause by such changes.

The record indicates that Alex Vien, Jr. signed the insurance contract in question. The premium was paid to Alex Yien, Sr., and was delivered by him. Both were in the insurance office together in the First National Bank Building in East St. Louis. Both had the Huskamps sign the papers which were designated as proof of loss, all of which would indicate that they were agents of defendant. Agents of an insurance company who are authorized to solicit and sell insurance, deliver policies and collect premiums are general agents of the company, and as such have power to waive conditions in an insurance policy and notice to them is notice to the company. Metropolitan Life Ins. Co. v. Sullivan, 112 Ill. App. 500. If the company retains the premium and does not elect to cancel the policy, it will be held to have waived the condition and be liable under the policy. Phenix Ins. Co. v. Grove, 215 Ill. 299; Orient Ins. Co. v. McKnight, 197 Ill. App. 190. Mrs. Huskamp testified that before the property was rented to Chaney, she went to Alex Yien’s office and told him that Chaney was going to rent the front of the building as a tavern. She also testified that Alex Yien and Alex Yien, Jr. were on the premises, before the fire, at the time when Chaney was operating the tavern there, indicative of notice to the company.

However, it is claimed, on the part of defendant, that inásmuch as Vien, Sr. was dead at the time of the second trial, at the time witness Mrs. Huslcamp testified, it was not competent for her to testify to any conversation with or admission of, an agent of the opposite party who was then deceased. In a hearing before the court without a jury, it will be presumed, on appeal that the court below considered only competent evidence. Waggoner v. Clark, 293 Ill. 256; Drum v. Drum, 251 Ill. 232; Allen v. McGill, 311 Ill. 170. We are inclined to the belief that there was still sufficient competent evidence in the record on this question, to justify the trial court in the belief, that there was notice to defendant and waiver on its part.

It is next contended by defendant that compliance with the provision with reference to making proof of loss, was a condition precedent to any liability on the policy, and that there was no such proof. In the former opinion of this court, in this case, we said, “We believe that there was sufficient proof of the presentation to defendant of written proof of loss to make a prima facie case.” Reinhardt v. Security Ins. Co. of New Haven, Conn., 312 Ill. App. 1. On practically the same testimony on that proposition in the instant case, we are of the same opinion.

It was further said in the former opinion, ‘ ‘It is our opinion that the plaintiff Reinhardt, trustee, made a prima facie case entitling him to judgment for the amount due him as assignee of the mortgage indebtedness. It is also our opinion if the plaintiffs Huskamp had been permitted to introduce and had introduced evidence showing or tending to show a waiver of the condition of the policy with reference to an increase in hazard by reason of the change in occupancy, they would have made a prima facie case entitling them to judgment for the balance of the proceeds of the policy.” Reinhardt v. Security Ins. Co. of New Haven, Conn., supra.

Upon substantially the same record being presented to us again and with the evidence as set forth in this opinion being introduced by plaintiffs, on the question of waiver, we are not inclined to hold that the court erred in entering judgment in favor of plaintiffs.

Finding no reversible error in this record, the judgment of the trial court will be affirmed.

Affirmed.