text:
    Reilly Tar and Chemical Corporation, Now Known as The Reilly Corporation, Appellant, v. Francis J. Lewis, Appellee.
    Gen. No. 42,602.

      Heard in the third division of this court for the first district at the April term, 1943.
    Opinion filed December 13, 1944.
    Rehearing opinion filed May 18, 1945.
    Released for publication June 8, 1945.
    See also case reported on p. 84, ante.

      W. M. Keeley, of CMcago, for appellant.
    A. B. Manion, of CMcago, for appellee.
   On Rehearing.

Mr. Presiding Justice Burke

delivered the opinion of the court.

This is the third appeal in this case. Our opinion in the first appeal (No. 40458), filed October 25, 1939, is reported in 301 Ill. App. 459. The opinion on the second appeal (41697), filed January 7, 1942, was reported in abstract form (312 Ill. App. 654). We are now requesting that it be published in full. [See 326 Ill. App. 84] After the last remandment the case went to trial before the court and a jury on September 23, 1942, resulting in a verdict against plaintiff. The court overruled plaintiff’s motion for a new trial and entered judgment on the verdict. Plaintiff appeals.

Plaintiff urges that the court erred in refusing to permit it to introduce evidence of what was said and done at the conference with the representatives of the Government, attended by Mr. Orr, Mr. Ryan and Mr. Lux, on May 25,1928. The court should have followed our opinion reported in 301 Ill. App. 459, wherein we held that this testimony was competent. Defendant states that when a case is reversed and remanded generally, only the legal principles announced by the appellate tribunal control in any future proceedings. In our first opinion we clearly stated that the trial court erred in refusing to admit the exhibits and proffered testimony. Furthermore, we stated that the testimony of Mr. Orr as to what was said and done at the conference with the representatives of the Government was competent. On the retrial of the case it was the duty of the court to follow the directions so given. The conference with the Government men was one of the constituent facts in the transaction; was in contemplation of the parties at the hotel conference; and was so connected in point of time and interest with the hotel conference as to be part of it. Orr, acting under power of attorney for plaintiff, and Ryan and Lux, acting as attorneys for defendant, went from the hotel directly to the conference with the Government men. The parties to this action were there by their representatives. What was. done there was a part of the transaction at the hotel and continued that transaction. It was part of the res gestae. Bes gestae has been defined as those circumstances which are the automatic and undesigned incidents of a particular litigated act and which are admissible when illustrative of such act. The true inquiry is whether the declarations are a verbal act, illustrating, explaining or interpreting other parts of the transaction of which they are then a part, or merely a history of a completed past affair. In one case they are competent; in the other they are not. It has been held that the test of the admissibility of evidence as a part of the res gestae is whether the act, declaration or exclamation is so intimately interwoven or connected with the principal fact or event which it characterizes as to be regarded as a part of the transaction itself, and whether it clearly negatives any premeditation or purpose to manufacture testimony. We are of the opinion that the testimony of Mr. Orr was admissible under the res gestae rule. We disagree with the contention of defendant that the proffered evidence was repetitious, immaterial and irrelevant to plaintiff’s case in chief. Defendant, by his attorneys Ryan and Lux, was present at the conference with the Grovernment agents. Attorneys Ryan and Lux at that time were in the discharge of their duties and transacting the business of their principal, Mr. Lewis! . Defendant urges that the conversation between Orr and representatives of the Bureau of Internal Revenue was in the presence of the agents of the defendant, both of whom were dead at the time of the trial, and that it has been consistently held by the courts of this State that conversations with the deceased agent of a principal sought to be charged are not admissible in evidence as against the principal. The cases cited by defendant in support of this proposition are based on section 4 of the Evidence Act (par. 4, ch. 51, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 107.070]). In the case at bar plaintiff seeks to enforce a contract allegedly made with defendant. Mr. Orr is not a party litigant, nor is he a party to the contract. Section 4 of the Evidence Act provides that a party to an action who has contracted with an agent of the adverse party, the agent having since died, shall not be a competent witness as to any admission or conversation between himself and such agent, unless such admission or conversation with the deceased agent was had or made in the presence of a surviving agent or agents of such adverse party. This section is not applicable and may not be invoked to exclude the testimony of Mr. Orr and the cases cited by defendant in support of the point are inapplicable.

Plaintiff maintains that the court erred in refusing to allow it to prove that the stipulations shown in plaintiff’s exhibits 4 to 10, entered into by attorneys for plaintiff and for defendant with Mr. Chare st, acting for the Government, were made pursuant to the discussion and conference with the Government officials on May 25, 1928. Defendant insists that the court ruled correctly, for the reason that the question called for the conclusion of the witness, invaded the province of the jury and was neither material nor relevant. Whether the stipulations were made pursuant to the discussion or conference, was a question of fact. Mr. Orr knew the fact. It was a material and relevant fact and a constituent part of the settlement transaction. It was a part of the res gestae. The question did not call for the conclusion of the witness on a question of fact; it did not invade the province of the jury, and it was material and relevant. Defendant calls attention to the fact that in our last opinion (No. 41697) we held that a question directed to Mr. William Lewis as to whether in delivering certain checks to the Collector of Internal Revenue he relied on an alleged agreement between defendant and plaintiff, called for the conclusion of the witness and invaded the province of the jury, and urges that following our reasoning in that opinion we should sustain the action of the trial court in declining to allow Mr. Orr to answer the question under discussion. In our last opinion we held that Mr. Lewis was not conversant with the situation and that any information he had was necessarily derived from others. Mr. Orr was fully acquainted with the situation and had personal knowledge thereof. Plaintiff urges that the court erred in refusing to permit witness Boynton to testify regarding his instructions to Hayes to draw up the journal entry called exhibit 801, and regarding the instructions and statements of Hunter to Boynton as to that journal entry; in excluding the .testimony of Hayes as to the instructions of Boynton regarding the preparation of the exhibit; and in excluding the testimony of witness Hayes concerning the exhibit. Plaintiff asserts that these statements were verbal acts, essential to an understanding of the transaction of which they were a part. In our opinion in case No. 41697 we stated that the exhibit and the testimony in the depositions of Boynton and Hayes were admissible as rebuttal evidence. We are now of the opinion that the exhibit and the proffered testimony were admissible in rebuttal and are also admissible as part of the res gestae. It will be observed that plaintiff’s sixth and final check in payment of the taxes fixed in the orders of redetermination, was dated February 15, 1929. Plaintiff’s'exhibit 26, also referred to as exhibit 801, was made in March 1929, a month after the payment of the final instalment, to set up the account on the books of plaintiff. We agree with plaintiff that the court erred in excluding the proffered testimony of Boynton and Hayes.

Plaintiff urges that a question to Hunter as to opening up negotiations with Lewis for the purchase of the stock of the Lewis Manufacturing Company, and a question to the same witness as to provisions in the contract, defendant’s exhibit 3, being discussed with witness before being prepared for signatures of the parties, called for immaterial and irrelevant answers. These matters are not in dispute. However, we are of the opinion that the questions were proper. Plaintiff objects to the testimony of defendant that he guaranteed many accounts. Plaintiff’s objection to this testimony should have been sustained. We agree with plaintiff that the questions to Orr as to an agreement by the Engineering Corporation to assume tax liability for the income taxes of plaintiff, were immaterial and irrelevant. Engineering Corporation did not agree to assume the tax liability of plaintiff and the questions to Orr along that line only tend to confuse. Plaintiff states that the court erred in permitting the questions to Orr as to the meaning of the memorandum of May 17, 1928, defendant’s exhibit 20, and the proposed settlement “not acquiesced in by the Grovernment.” In our opinion these questions, shown on pages 379, 381 and 407 of the record, were proper. Defendant read into the record from a deposition plaintiff’s direct examination, cross-examination and redirect examination of Hunter by plaintiff, and thereby Hunter was made defendant’s witness. Plaintiff objects to the question propounded to Hunter as to who he was representing in the negotiations preceding the preparation of defendant’s exhibit 3. The objection to this question should have been sustained. The objection to the question to Hunter as to whether there was anyone in the conference of February 1928, representing or purporting to represent plaintiff, should have been sustained. Plaintiff also objects to questions put to Orr as not cross-examination or material or competent, shown in record 328, record 331, and records 327, 328, 329, 330, 331, 332, 333 and 334. In our opinion there was no error, in admitting this testimony. Plaintiff complains of testimony giving conclusions and opinions as to matters in controversy and attempting to interpret the Washington Hotel transactions. We are of the opinion that the question to Hunter as to his going to the Washington conference as a representative of the Engineering Corporation, record 310, was improper; that the question to Hunter as to whether he was acting at that time as the vice president of Engineering Corporation, was improper; and that the questions to Hunter asking his interpretation of plaintiff’s exhibits 14 and 15, the Washington memorandum, were improper. The question to Hunter as to his statement to Learnard of what Hunter thought about ratification or approval by the board of the Engineering Corporation of the signing of the agreement at Washington, was proper. Plaintiff asserts that testimony by defendant as to what he had been told by Ryan and Lux about the conference with the Government men following the hotel meeting, of May 25, 1928, constituted hearsay and conclusions. We are of "the opinion that this testimony was admissible. Plaintiff further urges that defendant’s exhibits 10, 11, 16, 17, 18 and 21 were immaterial. We are of the opinion that these exhibits were admissible.

Plaintiff urges that the court erred in refusing to give its instructions 1, 2, 3, 4a, 5, 6, 7, 20, 22 and 23. We are of the opinion that the court should have given plaintiff’s instructions 1, 2, 3, 4a, 6, 7 and 20. Plaintiff states that its instruction 5, which was refused, informing the jury as to the measure of damages and the method of arriving at it, should have been given. In our opinion the court should not give an instruction on the measure of damages or the method of arriving at it. The contract, on that subject, is unambiguous. If the jury finds for the plaintiff, then the amount of recovery, under the contract, will be one half of the total of the payments made by plaintiff and by defendant and his brother, less the amount paid by defendant and his brother, provided the latter two shall not pay more than $315,000, plus interest. This is a simple matter of arithmetic and should be found by the court on the proof then in the record as to what payments were made. The payments are of record and there should be no dispute thereon. However, should a legitimate question of fact arise as to the payments, the parties would have a right to have such dispute submitted for the determination of the jury under proper instruction. Plaintiff’s tendered instruction 8, which was refused, among other things, dwelt on the subject of interest. In this court plaintiff does not argue that the court erred in declining to give this instruction. Should plaintiff press its claim for interest under its allegation of an unreasonable and vexatious delay, it may be that an issue as to whether there was an unreasonable and vexatious delay should be submitted to the jury. This phase of the case has not been argued before us. As to instruction 22 which was refused, we agree that there is no evidence in the record to support any rescission of the agreement between plaintiff and defendant, and that the instruction should have been given. As we said in our previous opinion (No. 41697), the record does not show that there was any fraud. Hence, plaintiff’s instruction 23 should have been given. In complaining of the eighth given instruction, plaintiff states that it confines the inquiry to May 25, 1928 and excludes other transactions which are a part of the field of inquiry. Plaintiff complains of the ninth instruction because it submits a claim of defense for which there is no proof. As we have stated, there is no proof of a rescission or cancellation of the contract between plaintiff and defendant and this instruction should not have been given. In speaking of the tenth instruction read by the court, which was on the ratification and adoption theory, plaintiff' points out that there was no instruction given informing the jury what constitutes ratification and adoption. On a retrial, our direction that plaintiff’s instruction 3 be given, will cure the objection to the tenth given instruction. Plaintiff also complains that the nineteenth instruction, read by the court, in effect, submits to the jury the claim that defendant entered into a contract with Engineering Corporation and that there is no evidence supporting such claim. In our opinion the only issue in the case is as to whether the contract was between Engineering Corporation and defendant or plaintiff and defendant. Under that issue the instruction was proper.

Plaintiff declares that counsel for defendant was guilty of improper and prejudicial conduct during the trial. The argument to the jury by counsel for defendant referring to the thousands of women and children in our community who have benefited by the liberality and generosity of defendant, was improper. Plaintiff also urges that counsel for defendant was guilty of improper and prejudicial conduct in removing from defendant’s exhibits 7 .and 8 “material parts thereof after the same were admitted in evidence and before they were delivered to the jury on its retiring to consider and deliberate upon its verdict. ’ ’ In our opinion the sheets attached to defendant’s exhibits 7 and 8 were introduced into evidence and should have gone to the jury. They are all part of the same exhibits and are important evidence bearing on defendant’s liability.

Finally, plaintiff insists that the verdict is manifestly against the weight and clear preponderance of the evidence. Defendant owned 85 per cent of the stock of plaintiff corporation and his brother owned the remaining 15 per cent. They sold all of the capital stock of plaintiff to Engineering Corporation for eleven million dollars plus. The stock was delivered on or about September 1, 1927. When the stock was delivered the number of directors of plaintiff corporation was increased from three to five. After the transfer of the stock the directors of plaintiff were Hunter, Learnard, Brannigan, a doctor or engineer, whose name is not given, and defendant. At the time of the sale of the stock defendant was chairman of the board of directors and his brother was president. Defendant remained as chairman until July 1929. Hunter directed the financial affairs of plaintiff. After the transfer of the stock defendant had no financial interest in plaintiff corporation. From then on the stock was owned by Engineering Corporation. It is obvious that after the transfer of the stock and the election of the new directors, Lewis had no power of direction of the affairs of plaintiff. Under the contract in evidence as defendant’s exhibit 3, providing for the sale of the stock from defendant to Engineering Corporation, the sum of $151,283.37 was to be included in the liabilities of plaintiff in arriving at the net current assets, and plaintiff was to pay “any additional federal taxes which have been or may be determined hereafter by the United States Government up to an amount of $394,342.34.” Any amount of taxes determined and assessed for the years 1917 to 1926, inclusive, over and above the amounts as set forth were to be paid by defendant. Plaintiff was not a. party to the contract, defendant’s exhibit 3. The claims made by tlie Government against plaintiff were $511,339. The sum of $151,283.37 and $394,342.34 is $545,625. Thus, if the Government claims against plaintiff had been conceded without contest, defendant would not have been obligated under the contract (defendant’s exhibit 3) to pay anything. The Government had assessed against the defendant, individually, $219,019 in taxes and $129,780 in penalties, a total of over $348,000. There was also a prospective assessment against defendant, individually, for 1927 upon $1,579,100 of the assets of plaintiff which were transferred to defendant in 1927. The evidence shows that this possible assessment would be $315,820. On March 15, 1928 defendant filed his income tax return for the calendar year 1927. At the time of the transactions involved in the instant case, this return had not been audited by the Government. Engineering Corporation was not interested in the assessment made against the defendant, individually, nor in the prospective assessment for 1927 against him individually, nor was Mr. Hunter or plaintiff corporation. Plaintiff was interested only in the assessment made against it. In the view of plaintiff’s attorney Mr. Orr, plaintiff' had a splendid defense to present before the Board of Tax Appeals. This defense was that the so-called early dividends were not withdrawals from the assets of plaintiff, or had been promptly replaced. In the Spring of 1928 defendant was subject to claims by the G-overnment of $348,000, including taxes, fraud and penalties, and to a prospective liability of $315,820, or a total liability of $664,619, plus interest. In plaintiff’s exhibit 11, the memorandum of March 1, 1928, signed and filed with the Commissioner of Internal Revenue by the attorneys for plaintiff and defendant and his brother, the following proposal was made: “The Lewises pay a tax in the year 1927 of at least 20 per cent on $1,579,100.91. As far as the Lewises are concerned, this is in addition to all other taxes which may properly be due for any of the years under consideration.” In his letter of March 30, 1928, Mr. Andrew J. Ryan, defendant’s attorney, proposed that defendant and his brother would pay the Government $315,820.18. There was no controversy between Engineering Corporation and the Government. Engineering Corporation, -as the owner of all the stock of plaintiff, was interested in the taxes to be paid by plaintiff, as whatever deficiency assessment that would have to be paid by plaintiff would reduce the value of the stock of plaintiff owned by Engineering Corporation. Mr. Orr was a member of the New York law firm of White and Case. This firm represented Engineering Corporation. However, Mr. Orr was not the attorney in the transaction involving the sale of the stock. He specialized in income tax law and was called in later by Engineering Corporation. At the request of Mr. Hunter, who managed the financial affairs of plaintiff, a power of attorney dated January 9, 1928 was given by plaintiff, empowering Orr to appear before the Treasury Department and to represent plaintiff in any and all matters bearing on income, excess profits, war taxes and any and all other tax matters covering the taxable years of 1916, 1917, 1918, 1919, 1920 and 1921, with full power and authority to do and perform all and every act and thing whatsoever requisite and necessary and to make any compromise, adjustment or settlement of any tax matter pertaining to any of these years. This power of attorney was executed on behalf of plaintiff by Mr. W. M. Lewis, its president. Thereafter, Mr. Orr represented plaintiff in connection with the tax matters. There is no doubt that Mr. Orr was called into the case by Engineering Corporation. However, he acted as attorney for plaintiff. In our opinion, under the contract for the purchase of the stock, it was not necessary to secure defendant’s consent to the hiring of additional counsel to represent plaintiff in the tax matters. The brief filed in behalf of plaintiff and defendant with the Commissioner of Internal Bevenue on March 3, 1928 and which was prepared by Mr. Orr, with the assistance of Mr. Byan, supports the contention of plaintiff as to the conversations in the conferences held in Mr. Orr’s office in February 1928. We are satisfied that the evidence supports plaintiff’s contention that in the conferences in February 1928 the parties agreed to present the cases to the Government agents and to apportion the resulting payments, regardless of how the assessments were made. In the conferences in New York the parties did not come to an agreement as to the allocation of payments. In the New York conferences in February 1928 the parties agreed to pool their interests. The agreement as to the allocation of the payments was made at the Washington Hotel conference on May 25, 1928. Apparently, that was the purpose of the conference. Following the conference the attorneys representing plaintiff and defendant went before the Government agents. There is no doubt that Mr. Orr, as attorney for plaintiff, in the conferencé with the Government men, acted on the assumption that an agreement had been made to divide the payments evenly. On July 31, 1928 written stipulations were signed by the attorneys acting for the taxpayers, under which orders were entered, establishing the taxes on the deficiency assessments and petitions on appeal then pending. In the settlement with the Government it was agreed that the amount of the “dividends” or “Moline account checks” in the sum of $1,579,100.91 would not be taxed to defendant or his brother for 1927. The so-called fraud penalties were also removed.

Continuing its argument that the judgment is contrary to the manifest weight of the evidence, plaintiff asserts that defendant’s testimony attempting to prove the rescission point cannot be given any credence. Defendant’s testimony as to his alleged talk with Mr. Learnard is directly controverted by the testimony of Mr. Learnard, a disinterested witness. Defendant testified that a week or ten days after the Washington agreement he talked with Hunter and Learnard at New York; that he then had waivers and that after the talk he authorized the filing of the waivers. The waivers are dated June 20, 1928. They were sent to the Commissioner of Internal Revenue by Mr. Orr .on June 22, 1928. The letter of Mr. Ryan dated June 20, 1928 states that he delivered the waivers to Mr. Iden of the general counsel’s department, and Mr. Orr’s letter of June 22, states that Mr. Iden was “here at this time.” This indicates that Mr. Iden received the waivers from Mr. Byan on June 20, 1928 and brought them to Mr. Orr’s office on June 22, 1928. Bach waiver recited that the taxpayer “hereby waives the right to file a petition with the United States Board of Tax Appeals under Section 274(a) of the Bevenue Act of 1926, and consents to the assessment and collection of a deficiency in tax” for certain years and in certain amounts ‘ ‘ as indicated in the statement of the Internal Bevenue Agent.” The documents called “waivers” were both waivers and consents to the assessment and collection of deficiency taxes in certain definite sums. The taxpayers having appealed to the United States Board of Tax Appeals, the Commissioner of Internal Bevenue was without authority to enter into any stipulation to settle the tax disputes until after the taxpayers had executed waivers. The tentative agreement made between the Government representatives and the attorneys for plaintiff and defendant and his brother on May 25, 1928, following the signing of the Washington hotel memorandum, would not become binding on the Government and the taxpayers until carried' into effect by the execution of the waivers and the stipulations. The waivers were one of the steps in the transaction for settlement of the tax controversies, and after they were signed and filed, the general counsel for the Bureau of Internal Bevenue and Orr, Byan and Lux, attorneys for plaintiff and defendant and his brother, signed the stipulations, which were filed with the United States Board of Tax Appeals on July 31, 1928. The orders of re-determination were entered by this board on the same day and each recites that under “written stipulation signed by counsel for the parties in the above entitled proceeding and filed with the board on July 31, 1928, it is ordered and decided that upon redetermination there is a deficiency” of a certain sum for a certain year. The evidence shows that the tentative agreement of May 25, 1928 between representatives of the Commissioner of Internal Revenue and the taxpayers, was carried out as to the promise by the Government representatives on the one hand and by the taxpayers on the other hand. The dispute involved in the instant case arose after the stipulated payments had been made to the Government. Ryan and Lux continued to represent defendant to and including the signing of the stipulations and the entry of the orders redetermining the taxes. They represented defendant in making the settlement with the Government. If defendant talked with Mr. Hunter before authorizing Ryan to send the waivers along, Hunter would have informed Orr at once that the Washington arrangement was not going through, and Orr would never have sent through to the Commissioner the waivers which constituted the first necessary step in establishing the tax obligation of the plaintiff corporation. This, in turn, was based upon the agreement made at the conference with the Government men on May 25, 1928, which was an essential step in the waiving of plaintiff’s defenses that Hunter and Orr considered were worth $250,000 to the company, and .Orr would never have signed the stipulations dated July 30, 1928 on which the orders of redetermination of the taxes against plaintiff were entered. Mr. Hunter testified that defendant talked to him about misrepresentations at Washington in the Fall of 1928. It is interesting to note that Hunter’s letter of April 27, 1929 asserts the existence of “the agreement dated May 25,1928,” and the payment of the taxes thereunder. Mr. Hunter would not have sent such a letter if there had been any rescission of the agreement in June 1928, as claimed by defendant. Defendant knew that plaintiff would not have waived its defenses excepting in reliance on the agreement to divide the total amount of the taxes. Notwithstanding defendant’s claim of fraud, he authorized the filing of the waivers. He did that without any written memorandum of rescission or any scrap of paper to support his contention. There is no support in the record for defendant’s claims that the agreement of May 25, 1928 was “supplemental to and in lieu of the provisions contained in the contract for purchase of stock of plaintiff company by the International Combustion Engineering Corporation,” and “that the effect of said agreement changed the method of arriving at the net current assets.” We are satisfied that the judgment is contrary to the manifest weight of the evidence.

In his petition for rehearing defendant states that if this court is of the opinion that the verdict of the jury on all issues is contrary to the manifest weight of the evidence, then after three trials and three reversals we should enter an appealable order and not send the case hack for a fourth trial “that can only result in another reversal.” Par. 2(c) of sec. 75 of the Civil Practice Act (par. 199, ch. 110, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 104.075, subpar. (2) (c)]) reads:

“In any case heard and determined in the trial court upon actual trial in which the Appellate Court upon appeal from the final judgment or decree entered in the cause in the trial court reverses said judgment or decree and remands the cause for a new trial or hearing, and in which the party in whose favor the trial court’s judgment or decree was rendered shall present to and file with the Appellate Court an affidavit stating that he will be unable on a future trial or hearing to adduce other or additional evidence, facts or circumstances than were adduced in the trial court and expressly waiving the right to a new trial or hearing and consenting and requesting that the portion of the judgment of the Appellate Court remanding the cause for a new trial or hearing be deleted and stricken from the judgment of the Appellate Court, then that court upon motion shall amend its judgment by striking out the portion thereof remanding the cause for a new trial or hearing. Thereupon it shall be competent for the Supreme Court to grant leave to appeal from said final judgment of reversal for its review and determination with the same power and authority in the case, and with like effect, as in other cases in which leave to appeal from the final judgments of the Appellate Courts is authorized in this section.”

Should defendant desire to avail himself of the above provision, he should file a motion and affidavit in accordance with the paragraph quoted from sec. 75 of the Civil Practice Act.

The judgment of the circuit court of Cook county is reversed and the cause is remanded with directions to proceed in a manner not inconsistent with these views.

Judgment reversed and cause remanded with directions.

Kiley and Lupe, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Burke

license: Public Domain

text:
    George Yellen, Appellant, v. J. Bloom and Continental Casualty Company, Appellees.
    Gen. No. 43,178.

      Heard in the third division of this court for the first district at the October term, 1944.
    Opinion filed February 14, 1945.
    Rehearing opinion filed May 18, 1945.
    Released for publication June 8, 1945.
    George Yelleu, pro se.

    V. Russell Douaghy and David A. Schallman, both of Chicago, for appellees.
   On Rehearing.

Mr. Presiding Justice Burke

delivered the opinion of the court.

In a statement of claim filed in the municipal court of Chicago against J. Bloom and Continental Casualty Company, George Yellen, an attorney at law, alleged that on November 12, 1942 Edward Barron, a 13-year-old boy, sustained injuries attributable to the negligence of Bloom in the operation of a motor vehicle; that at the time of the occurrence Bloom carried liability insurance with the defendant corporation covering the operation of the vehicle; that subsequent to the mishap Edward Barron, by and through his mother and natural guardian, Mrs. L. Rickert, entered into a written agreement that plaintiff act as his attorney in his claim or cause of action against J. Bloom, and agreed to pay plaintiff for his services a sum of one quarter of whatever should be collected in case of settlement, and one third of whatever should be recovered in the event of suit; that on November 17, 1942 plaintiff, by registered mail, served a notice of attorney’s lien on defendant, in accordance with the statute; that plaintiff thereupon took steps to effectuate a settlement; that he contacted defendant corporation ; that he negotiated for settlement with representatives of the corporation; that the minor and his mother refused to co-operate with him; that without cause or reason they permitted another attorney to “take” the cause of action and to institute proceedings at law “on their behalf”; that he (plaintiff) at all times was ready and willing to continue with the matter, but that the minor and his mother failed and refused to permit him to do so; that in December 1943 or January 1944 the defendants compromised the claim of the minor by paying $1,025; and by virtue of the agreement and the attorney’s lien act plaintiff asked judgment for $256.25, being one-quarter of the amount of the settlement. Attached to the statement of claim as “Exhibit A” is a document signed “Mrs. L. Bickert, Mother of Edward Barron,” which reads: “I hereby authorize George Yellen to act as attorney for my son Edward Barron, in his claim or cause of action against Jack Bloom, and agree to pay one-fourth of amount collected as fees for settlement and one-third in event of a law suit.” Also attached to the statement of claim and marked “Exhibit B” is a copy of a notice of attorney’s lien, signed by the plaintiff and addressed to the individual defendant, entitled: “Mrs. L. Bickert, and Edward Barron, a minor by Mrs. L. Bickert, his mother and next best friend, and Nathan Greenberg, and Arnold Greenberg, a minor by Nathan Greenberg, his father and next best friend, plaintiffs, vs. J. Bloom,” reading:

“You are hereby notified that Mrs. L. Bickert, and Edward Barron, a minor by Mrs. L. Bickert, his mother and next best friend, and Nathan Greenberg, and Arnold Greenberg, a minor by Nathan Greenberg, his father and next best friend, have placed in my hands as their attorney for suit, settlement or otherwise, their claim, demand or cause of action by them sustained on or about the 12th day of November, A. D. 1942, while on the public sidewalk at or near the intersection of Kimball Avenue and Foster Avenue, Chicago, Illinois, due to your carelessness and negligence, and they have agreed to pay me as a fee for my services the sum of $1.00 and in addition thereto, a sum equal to one-fourth in event this case is settled, and a sum equal to one-third in event this case goes to Court of whatever may be recovered therefrom by suit, settlement, as aforesaid, and I claim a lien upon said claim, demand or cause of action for such fee.”

The corporate defendant served notice on plaintiff that it would “move to dismiss the above entitled cause because the statement of claim fails to state any cause of action against this defendant,” and the individual defendant served notice that he would move “to strike plaintiff’s statement of claim and dismiss the suit for the reason that said statement of claim does not set up any cause of action against this defendant.” By agreement the court ordered consideration of the motions postponed to March 13, 1944. On that day the court sustained the motions and gave plaintiff leave to file an amended statement of claim. Plaintiff, however, elected to stand on his statement of claim. Thereupon the court dismissed the action and entered judgment against him. He appeals.

Plaintiff asserts that defendants’ motions to strike and dismiss are not sufficient in law. Buie 42 of the municipal court of Chicago requires all objections to pleadings to be raised by motion, which shall, point out specifically the defects complained of; and that where the motion is to dismiss, or for judgment, or to strike the pleading, because it is insufficient in law, it (the motion) must specify wherein such pleading is insufficient. The rule is substantially the same as sec. 45 of the Civil Practice Act (par. 169, ch. 110, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 104.045]). The statute and the rules indicate that motions to dismiss or to strike are required to be in writing, for they speak of the “filing of the motion.” In the instant case the notice stated that motions would be made and the motions were made. However, they were not in writing. The clerk in making the record wrote the motions as they appeared in the notices, or as they were stated orally. The oral motions were heard without objection as to form. At this time plaintiff cannot be heard to complain. The record recites that the court was fully advised in the premises. The better and safer practice is to file written motions.

Plaintiff insists that his statement of claim sets out a good cause of action. From the case of Haj v. American Bottle Co., 182 Ill.v App. 636, it appears that Adam Rabí Haj, a minor, was seriously injured in the employ of the American Bottle Company, losing his right foot; that he and his father, by a written contract, employed attorney James J. Conway to prosecute a claim against his employer for damages; that Conway served a lien notice on the employer; that he also brought suit against the employer to recover damages ; that the employer settled the case with plaintiff, paying an uncontested judgment for $1,000 and ignored Conway’s lien notice; that Conway filed a petition for a lien; and that the trial court gave judgment to Conway for the amount of his contract, or $333.33. On appeal, the employer contended that the contract between Conway and his client was void. The court said (p. 639):

“The minor and his next friend could each make a valid contract for necessaries and could agree to pay what the same were reasonably worth. The general rule as to what are and what are not necessaries for a minor, and when a minor may or may not bind himself therefor, and the jurisdictions in which attorney’s fees for a minor are or are not held to be necessaries, and whether a next friend may bind the minor therefor, are set forth in 22 Cyc. 590-595, and notes thereto. .In a well considered opinion in Munson v. Washband, 31 Conn. 303, it was held that where the services of an attorney are needed for the personal relief, protection and support of an infant, he may lawfully contract therefor and bind himself to pay for them; and that it would be a reproach to the law to deny him the power to make necessary contracts for the commencement and prosecution of suits, where, under extraordinary circumstances, a suit is the only means by which he can have necessary relief. We are of opinion that, under the special circumstances here disclosed, this suit comes within the purview of necessaries for the minor, and that the minor could make a valid contract, and so could his next friend, whereby to hire an attorney to prosecute the suit and agree to pay him a reasonable compensation, and if a compensation was named in the contract which did not strike the conscience of a court called upon to enforce it as unconscionable, it would be enforceable as to amount unless it appeared from the proof that it was an unreasonable amount. Therefore, we hold that this contract by the minor and by his next friend, by which he employed Conway to prosecute this suit, was valid. By the contract, Conway agreed to institute and prosecute the suit in the circuit court, and in case plaintiff recovered judgment, and the defendant should appeal to the Appellate Court, and to the Supreme Court, he agreed to attend to the cause in those courts also. The contract plainly meant that if plaintiff was defeated, Conway would receive nothing, and we do not consider it unconscionable or unreasonable, under such circumstances, that he should have one-third of what might be recovered upon a judgment or by a settlement. The minor is not resisting the enforcement of that contract, nor is he here claiming it is unreasonable. It is true that his father told defendant that Conway had not earned such an amount, but he was absent in Detroit, and did not know how much' Conway had done in searching for testimony, examining the law and preparing for trial, and it is obvious that he did not take into account the fact Conway was liable to have to prosecute the suit in three courts and then receive nothing. But let us suppose that the minor and his next friend could not make a valid contract as to the amount Conway should- receive for his services. If defendant received the written notice then its officers are presumed to know the law, and they therefore knew that the facts stated in the notice would give Conway a lien for whatever his services were reasonably worth, including the value of his contract to defend in the Appellate and Supreme Courts a favorable judgment in the circuit court. We are of opinion the defendant’s officers could not ignore the written notice, if they received it, merely because the law would only enforce the contract for what the services were reasonably worth rather than for the specific share named therein. Neither could said officers assume that the share specified in the contract was unreasonable or would be so held by the courts. We are of opinion that the contract was enforceable against plaintiff for the amount provided therein, in the absence of some testimony tending to reduce the amount to which Conway was entitled.”

The Haj case was followed in Goldberg v. Perlmutter, 308 Ill. App. 84, and in Caruso v. Pelling, 271 Ill. App. 318.

The attorney’s lien act does not affect the right of defendants in suits or persons against whom claims or demands are being pressed, to settle, but requires, after notice, that in making settlement they shall take into account the attorney’s claim for fees. A settlement may be made with a claimant, under this act, to the same extent and with like effect as previously, the only difference being that under the act a party, in settling with an attorney’s client, must take into account his liability to the attorney for whatever amount of fees would accrue under his contract at the time of the settlement. Standidge v. Chicago Rys. Co., 254 Ill. 524, 535. The individual if not the corporate defendant in the instant case, in settling with plaintiff’s client, must have taken into account his liability to plaintiff for whatever fees would accrue under the contract.

It will be observed that (so far as the pleadings indicate) the lien was not served or directed to the corporate defendant. The act provides that the attorney shall have a lien upon all claims, demands and causes of action for the agreed fee, or a reasonable fee, providing he shall serve notice in writing “upon the party against whom their clients may have snch suits, claims or causes of action.” In the instant case the minor asserted no claim against the corporate defendant. We cannot presume that the policy issued by the corporate defendant contained provisions which would entitle plaintiff to recover. Berkemeier v. Dormuralt Motor Sales, Inc., 263 Ill. App. 211, 219. Plaintiff had an opportunity to amend his statement of claim. The corporate defendant presented a separate motion to dismiss the cause. The court gave plaintiff leave to file an amended statement of claim, but he elected to stand on his original statement of claim. Having so elected and the statement of claim not alleging a cause of action against the corporate defendant, we are of the opinion that the judgment of the court as to the corporate defendant should stand.

Defendants maintain that the contract sued upon was the individual contract of “Mrs. L. Bickert” and not the contract of the minor or his estate, and that the words “Mother of Edward Barron” were “descriptio personae.” In the Raj case the court said that the minor could make a valid contract, as could his next friend, to hire an attorney to prosecute the suit and agree to pay a reasonable compensation. “Exhibit A” shows that plaintiff was hired to act as attorney for the minor in his claim against the individual defendant and that plaintiff was to be compensated by one-quarter of the amount collected as fees in the event of settlement and one-third in the event of suit. The mother acted for her son in hiring plaintiff. She did not agree to pay plaintiff from her own funds, but from the amount collected. In view of the opinions in the Raj and other cases, defendant’s point is without merit. The minor is not resisting the enforcement of the contract, nor is he contending that it is unreasonable.

The judgment of the municipal court of Chicago is affirmed as to the Continental Casualty Company and reversed as to J. Bloom, and the cause is remanded for further proceedings not inconsistent with this opinion.

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

Kiley and Lupe, JJ., concur.


text:
    People of State of Illinois, Appellant, v. Two Roulette Wheels and Tables et al., Appellee.
    Gen. No. 43,277.

      Heard in the third division of this court for the first district at the December term, 1944.
    Opinion filed May 18, 1945.
    Rehearing denied June 8, 1945.
    Released for publication June 8, 1945.
    William J. Tuohy, State’s Attorney, and Thomas J. Courtney, former State’s Attorney, for appellant; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
    George M. Crane, of Chicago, for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On October 30, 1943, the grand jury returned an indictment to the criminal court of Cook county charging that Sam Romano and 11 other persons on or about October 7, 1943, conspired to keep a gambling house at 4730 West Cermak Road in the Town of Cicero. On March 13, 1944 Romano filed a petition in the case representing that on October 7, 1943, he occupied the second floor of the premises at 4730 West Cermak Boad, Cicero, Illinois; that he had in the premises certain personal property including 6 tables, 3 adding machines and 3 change machines; that on that date certain deputy sheriffs and police officers assigned to the state’s attorney’s office gained entrance to the premises by chopping down the doors; that they did not have a warrant to search the premises; that they were not in pursuit of any person who had committed a crime; that they did not see' any violation of law previous to their unlawful entry; that they seized the articles mentioned; that on a trial the articles may be introduced in evidence; that on the same day officers attached to the state’s attorney’s office went to the premises at 4738 West Cermak Boad, Cicero, Illinois, also occupied by petitioner; that they smashed the door leading to the premises and removed therefrom 2 roulette wheels, 8 tables, 3 change machines, 3 adding machines and $13,000 contained in a safe which the officers forced open; that the officers did not see any violation-of law previous to their unlawful entries; that the unlawful searches and seizures were in violation of his constitutional rights; and he prayed for an order suppressing as evidence against him any of the articles so taken, and for a further order directing the officers to return the “articles” to him. On the hearing of the petition Nicholas Disteldorf, called as a witness in behalf of petitioner, testified that he was a police officer of the City of Chicago, attached to the office of the state’s attorney of Cook county; that on October 7, 1943, he went to 4738 West Cermak Boad, Cicero, Illinois, which had a store front; that he got into the store by “going through the door”; that he had no search warrant at the time; that he found nothing on the first floor; that he then went to the basement and found “nothing in the basement”; that he looked, in several rooms in the basement and in one of the rooms in the front portion of the basement he found 2 roulette wheels and tables, 4 black jack tables, 1 dice table, 1 ckuck-a-luck cage, 36 decks of playing cards, 6 dice racks and 4 chip racks; that at “that particular time none of the articles was being used in gambling,” and that he seized “the said articles.” This was all the evidence given on the motion. On March 14, 1944, the court sustained the motion to suppress the articles expected to be offered in evidence, but did not enter any order with reference to the return of the articles. A trial under the indictment before the court and a jury resulted in a verdict, returned March 20, 1944, finding all of the defendants not guilty, and judgment was entered on the verdict.

On April 17, 1944, the state’s attorney in a petition entitled People of the State of Illinois vs. Two Roulette Wheels, et ah, and filed in the same case and bearing the same number as the indictment hereinbefore mentioned, represented that ‘ On October 7,1943, upon information received, one Nicholas Disteldorf, a police officer of the City of Chicago, attached to the office of the State’s Attorney of Cook County, Illinois, entered the premises at 4738 West Cermak Road in the Town of Cicero, Illinois, and there found the following gambling equipment: 2 roulette wheels and tables, 4 black jack tables, 1 dice table, 1 chuck-a-luck cage, 36 decks of playing cards, 6 dice racks and 4 chip racks, which articles are gambling equipment per se, upon the action of which money is staked, hazarded, bet, won ór lost; that the said gambling equipment was seized by the said Nicholas Disteldorf and is now in the custody of the State’s Attorney of Cook County, Illinois”; and prayed the court to enter an order authorizing him to destroy such articles. No older was sought or entered requiring either the People or the petitioner to answer either petition. Apparently, the parties and the court treated the People’s petition as an answer to Romano’s petition, with the addition of a prayer for destruction of the articles. On June 23, 1944, the People in support of their petition, presented by stipulation the same testimony of Nicholas Disteldorf which had been presented on the hearing of the motion to suppress. On June 28, 1944, the court entered an order finding that it had jurisdiction of the parties and the subject matter; that the premises occupied by Romano were located at 4738 West Cermak Road, Cicero, Illinois; that the entry by the police officers was illegal and without authority of law as to the premises at 4738 West Cermak Road, Cicero; that the search of the premises was illegal and without authority of law; that the seizure of the enumerated articles at 4738 West Cermak Road was illegal; that the articles were not used for gambling at the time they were found and seized; that the articles are now in the custody of the Cicero police department and the state’s attorney, and the court ordered that all of the articles seized in the premises at 4738 West Cermak Road be returned to Romano, to which the People excepted. On July 10, 1944, the People, by the state’s attorney, filed a notice of appeal from “an order of the Criminal Court of Cook County refusing to order the destruction of the above named instruments and tables. ’ ’ The notice of appeal states that “the appeal is designed to reverse the judgment of the Criminal Court of Cook County and the order refusing to order the destruction of the above mentioned articles against which these proceedings were had.”

The record does not show that the court ruled on the petition of the state’s attorney for an order authorizing him to destroy the alleged gambling equipment. However, as the court entered an order directing that the seized articles be returned to Romano, this inferentially amounted to a denial of the state’s attorney’s petition for an order to destroy the articles. Appellant states that this is a proceeding in rem and has none of the elements of a criminal case. From a recitation of the facts as shown by the record, the police entered the premises at 4730 West Cermak Road and also at 4738' West Cermak Road. The indictment referred to the premises at 4730 West Cermak Road, but the alleged gambling paraphernalia seized at 4738 West Cermak Road are the only articles involved in the instant case. The attorney for the appellee states that the articles seized at 4730 West Cermak Road were ordered destroyed as gambling equipment, as prayed by the state’s attorney, but this does not appear in the record. Section 26 of article VI of the constitution of Illinois provides that the criminal court of Cook county shall have the jurisdiction of a circuit court in all cases of criminal and quasi criminal nature arising in the County of Cook, or that may be brought before the court pursuant to law, and that it shall have no jurisdiction in civil cases, except in those on behalf of the People and incident to such criminal or quasi criminal matters. We assume that it is the People’s position that the petition to destroy the alleged gambling paraphernalia was “incident to such criminal or quasi criminal .matters.” Appellee maintains that the order appealed from was entered in a criminal proceeding. Par. 747, ch. 38, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 37.732], limits the right of the People to a writ of error to cases in which the trial court had “quashed” or “set aside” an indictment or information, and does not grant a general right of review to the People. People v. Burns, 364 Ill. 49; People v. White, 364 Ill. 574.

In urging a reversal of the order, the People state that it is elementary that gambling devices which are capable of no use for lawful purpose are not the subject of property, relying on Frost v. People, 193 Ill. 635; Bobel v. People, 173 Ill. 19; People v. One Pinball Machine Owned by Henry Fox, 316 Ill. App. 161. The Frost and Bobel cases involve the application of division VIII of the Criminal Code (pars. 691-699, ch. 38, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 37.666-37.674]), regulating the procedure concerning search warrants. Section 1 provides that “when a complaint is made in writing, verified by affidavit, to any judge or justice of the peace, that personal property (particularly describing the same) has been stolen, embezzled or fraudulently obtained . . . and that the complainant believes that it is concealed in any house or place (particularly describing the same), . . . the judge or justice of the peace, if satisfied that there is reasonable cause for such belief, shall issue a warrant to search such house or place or person, automobile or other vehicle, for such property or such pistol, revolver or other firearm.” Section 2 provides that any such judge or justice may, on like complaint, issue search warrants when satisfied that there is reasonable cause, to search for and seize counterfeit or spurious coin, forged bank notes and other forged instruments, or tools, machinery or materials prepared or provided for making either of them; to search for and seize books, pamphlets, ballads, printed papers or other things containing obscene language, or obscene prints, pictures, figures or descriptions, manifestly tending to corrupt the morals of youth, or intended to be sold, loaned, circulated or distributed, or to be introduced into any family, school or place of education; to search for and seize lottery tickets, or materials for a lottery, unlawfully made, provided or procured, for the purpose of drawing a lottery; and to search for and seise gaming apparatus, or implements used, or kept and provided to be used in unlawful gaming, in any gaming house, or in any building, apartment or place resorted to for the purpose of unlaioful gaming. Section 3 provides that all such warrants shall be directed to the sheriff or any constable of the county, or bailiff of the municipal court of Chicago, commanding him to search in the day time the house or place where the things for which he is required to search are believed to be concealed (which place and property to be searched for therein shall be particularly designated and described in the warrant, and if a person or automobile or other vehicle is to be searched the name or names by which such person is commonly known shall be stated, and the kind of automobile or vehicle shall be stated, and the kind of firearm to be searched for shall be specified in the warrant), and to bring such stolen property or other things, when found, to the judge or justice of the peace who issued the warrant, or to some other judge or justice of the peace, or court having cognizance of the case. Section 4 provides for the issuance of a search warrant and the authorization by two judges or justices of the peace to search the house or place in the nighttime, and to bring the property or things described in the warrant or summons and the person in whose possession they are found, before either of the judges or justices of the peace of the county. Section 5 provides that an officer may break open any outer or inner door or window of a house, or anything therein, if, after notice of his authority and purpose, he is refused admittance, using no more force than is necessary. Section 6 provides that the return of the officer shall particularly specify the property taken and the place where and the person from whom the property is taken. Section 7 provides that when an officer in the execution of a search warrant, finds stolen or embezzled property, or seizes any of the other things for which a search is allowed by the act, all the property and things so seized shall be safely kept by direction of the judge, justice or court, so long as necessary for the purpose of being produced or used as evidence on any trial. As soon as may be after-wards, all such stolen and embezzled property shall be restored to the owner thereof, and all other things, firearms excepted, seized by virtue of such warrants shall be confiscated and burnt or otherwise destroyed, under the direction of the judge, justice or court. Such firearms shall be returned to the owner thereof, or to the person from whom taken, upon proof that the same was lawfully possessed by such owner or such other person. All firearms not so restored to the owner shall be confiscated and destroyed or otherwise disposed of under the direction of the judge, justice or court. Section 8 provides that if on a hearing it appears that there was no probable cause for suing out the warrant, the whole cost may be taxed against the complainant and execution awarded. Section 9 provides that when a person charged with a felony is suspected by the judge or justice of the peace before whom he is brought to have upon his person a dangerous weapon, or anything which may be used as evidence of the commission of the offense, the judge or justice may direct him to be searched in his presence, and such weapon or other thing to be retained, subject to the order of the court in which the defendant may be tried. The fourth amendment to the United States Constitution provides: ' ‘ The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Section 6 of article II of the Illinois Constitution is in substantially the same language as the fourth amendment aforesaid. The fifth amendment to the Federal Constitution provides that no person shall be compelled in any criminal case to be a witness against himself. Section 10 of article II of the Illinois Constitution reads: “No person shall be compelled in any criminal case to give evidence against himself.” Under the search warrant statute the complaint must be verified and state that the facts charged are true, and must state the facts on which the complainant bases his belief, not conclusions or hearsay. The complaint must show on its face that the facts are within the personal knowledge of affiant. The place to be searched must be described in snch a manner as to leave the officer in no doubt. The property to be seized must be described with as much definiteness and detail as possible, and the description must be such that the officer serving the warrant can readily identify it and will not seize the wrong property. People v. Elias, 316 Ill. 376; People v. Martens, 338 Ill. 170; People v. Prall, 314 Ill. 518.

In People v. Brocamp, 307 Ill. 448, the question arose in our Supreme Court for the first time whether it is the duty of the court to determine if property and papers of a defendant were obtained by unlawful search and seizure when application has been made in apt time for their exclusion, and answering, the court said (456):

“ ... and it is our duty, in view of our obligations to support the constitution, to hold that it was the duty of the trial court to inquire into the truth of the charge of defendant, and, if it be found to be true, to sustain his objection to the introduction of all exhibits that were claimed by him as his property and taken from his home by means of unlawful search and seizure. ’ ’

In the Brocamp case the court also said (453):

“There.was a legal way for the State to proceed by its officers in the search of his premises, by first making a showing that they were entitled to a warrant authorizing them to search for and seize the particular articles named, if they could’ make a prima facie showing that either the State or the prosecuting witnesses had the right to forcibly seize the articles for their purpose and use. Such action of the officers in forcibly or unlawfully and without a warrant entering the plaintiff in error’s home and searching it and seizing the articles aforesaid has in unmistakable terms been condemned by the courts of this country. If an American’s constitutional rights cannot he protected against ruthless and unlawful acts of the character disposed in this record, then the constitution guaranteeing such rights is a mere nullity and our boasted rights óf liberty are vain boastings. ’ ’

The Brocamp case has been followed in People v. Castree, 311 Ill. 392, and numerous other cases. With the advent of the opinion in the Brocamp case, Illinois has followed the federal rule first announced in Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, and followed in Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341; Gouled v. United States, 255 U. S. 298, 41 Sup. Ct. 261; Amos v. United States, 255 U. S. 313, 41 Sup. Ct. 266. It has sometimes been stated that no search-warrant is necessary to search and seize gambling equipment. However, in People v. Dent, 371 Ill. 33, where defendant was convicted on a charge of knowingly possessing a policy book, numbers and slips, and where proper steps were taken to suppress the evidence because it had been obtained by an unlawful search and seizure in contravention of her rights under the federal and state constitutions, which the trial court declined to do, our Supreme Court held that the trial court erred in refusing to grant the motion of defendant to suppress the evidence. It therefore appears that at least since the Brocamp case, our Supreme Court has applied the same rule to the seizure by unlawful search of gambling equipment as to other property.

The People rely on the provisions of sec. 2 of an Act defining a gambling device for gambling purposes (par. 342, ch. 38, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 37.272]), that “every clock, tape machine, slot machine or other machine or device for the reception of money on chance or upon the action of which money is staked, hazarded, bet, won or lost is hereby declared a gambling device, and shall be subject to seizure, confiscation and destruction by any municipal or other local authority within whose jurisdiction the same may be found.” From the case of Glennon v. Britton, 155 Ill. 232, it appears that Glennon, a justice of the peace for the town of South Chicago, on a complaint under oath issued a search warrant directed to the sheriff or any policeman or constable of the county, reciting the facts contained in the complaint, and commanding them to enter the designated premises and there diligently search for the gaming apparatus and implements described, and if the same or any part thereof be found upon search, that they bring the apparatus or implements so found before him to be disposed of according to law. The police officer to whom the warrant issued made a return that he went to the premises and executed the warrant by searching the premises, and that he found two crap tables. On evidence being heard, the justice found and adjudged the property seized on the search warrant to be gambling implements and ordered them destroyed. On the issuance of a common law certiorari from the circuit court, the record was quashed. The justice of the peace appealed to the Supreme Court. It was contended that the proceedings before the justice, prosecuted under division VIII of the Criminal Code, were unauthorized by law and in violation of the 14th amendment of the Federal Constitution and sec. 2 of article II of the Illinois Constitution, that no person shall be deprived of life, liberty or property without due process of law. It was maintained that a statute providing for the seizure and destruction of property without notice to the owner, or any opportunity on the part of anyone having an interest therein, to be heard, is unconstitutional. Our Supreme Court said (240):

“It is not true, as seems to be supposed by counsel, that the statutes in question do not provide for or contemplate the service of any notice upon the owner or party in possession preliminary to the condemnation and destruction of the property seized. Section 3 provides for a search in the day time, and that the warrant shall command the officer, among other things, ‘to bring such stolen property or other things, when found, and the person in whose possession they are found, to the judge or justice of the peace who issued the warrant, or to some other judge or justice of the peace or court having cognizance of the case.’ Section 4 provides for search in the nighttime, in which case the warrant is to be issued by two judges or justices, and, among other things, shall command the officer ‘to bring the property or things described in the warrant or summons, and the person in whose possession the¡y are found, before either of the judges or justices who issued the warrant, or some other judge or justice of the peace of the county. ’ Section 7 provides that the property seized under the search warrant, for which search is allowed by the act, ‘shall be safely kept, by direction of the judge, justice or court, so long as necessary, for the purpose of being produced or used as evidence on any trial,’ and that, as soon as may be afterward, stolen or embezzled property is to be returned to the owner, and all other things seized by virtue of such warrants to be burned or otherwise destroyed, under the direction of the judge, justice or court. Section 8 provides: ‘If, on the hearing, it appears there was no probable cause for suing out the warrant, the whole cost may be taxed against the complainant, ’ etc.
“It is manifest that sections 3 and 4 contemplate that the officer empowered to execute the search warrant shall bring, not only the things described in the warrant and against which the complaint was made, but also the person in whose possession they are found, if found, before the judge or justice. Notice of the proceedings, by service of the search warrant and bringing the person in possession of the property before the court, is clearly intended by the statute, and is doubtless required for the purpose of giving the owner or other person interested an opportunity to claim the property, as well as, perhaps, to ascertain whether the party in possession has committed an offense. . . . The words ‘trial’ and ‘hearing,’ as here used, are familiar terms, and are generally understood as meaning a judicial examination of the issues between the parties, whether of law or of fact. . . . Statutes of the character of those in question are enacted upon the theory that the proceedings shall be against the thing or in rem, and the State and Federal reports abound in decided cases in which laws of this kind have been held constitutional and valid, where no service was had or contemplated other than that upon or against the offending thing and the person in whose possession it is found. . . . Searches and seizures of the character in the case at bar are not deemed unreasonable, and therefore are not within the inhibition of Federal and State constitutions, which guarantee to the citizen immunity against unreasonable searches and seizures. . . . The exercise of the power should be properly guarded, and every proper means adopted in order to prevent abuses and infringement upon the rights of the citizen under the constitution. To this end, we think, the evident purpose and intent of the legislature in requiring that not only the property, but also the person in whose possession it is found, shall be brought before the court, were to acquaint parties who might be interested, with the proceeding, and give opportunity to be heard concerning the disposition that should be ultimately made of the property. The legislature has seen fit to require this form of notice, which they, in their discretion, must have deemed sufficient for the summary purposes and objects of the act, and we do not feel inclined to hold that it is insufficient, or that any other or further notice should be given.”

The court, finding that the act concerning search warrants was valid, reversed the judgment of the circuit court, which held to the contrary.

We cannot find any provision in the law of Illinois, other than contained in division VIII of the Criminal Code, for an order giving the court jurisdiction over the disposition of gambling paraphernalia. It will be observed that the basis on which our Supreme Court sustained the search and seizure act, as stated in the Glennon case, was that there was provision therein for notice to the person in whose possession the paraphernalia was at the time of the seizure. In the instant case the People charged the defendants, including Romano, with a conspiracy to run a gambling house, and the issue was whether they were guilty or not guilty. There was no attempt to obtain a search warrant prior to the seizure of the so-called gambling paraphernalia. The defendant Romano filed a motion to suppress the use of the articles as evidence. He felt reasonably sure that the state’s áttorney contemplated introducing the alleged gambling paraphernalia as evidence, and he insisted that the State should not be permitted to do this because such contemplated evidence was obtained by an unlawful search, in violation of his constitutional rights. The court sustained him in this contention. It appears to be conceded that the court ruled correctly in suppressing the evidence. That ended the matter. The paraphernalia was not seized on direction of any court or judge. When the court sustained the motion to “suppress the evidence,” such “evidence” was no longer before the court, and the court not having acquired jurisdiction to decide on the disposition of the articles under the provisions of division VIII of the Criminal Code, lacked jurisdiction to entertain the further motion of Romano to direct the return of the articles to him, or the motion of the state’s attorney to direct the destruction of the articles. The jury having found the defendants not guilty and judgment being entered thereon, there was nothing further before the court in that ease. It will be noted that par. 342 of ch. 38, defining gambling devices subject to seizure, confiscation and destruction, does not have any provision requiring or authorizing the court to enter an order for such seizure or destruction. Par. 342 of ch. 38 was sustained as constitutional only by coupling it with division VIII of the Criminal Code. In the case of People v. One Pinball Machine, Owned by Henry Fox, 316 Ill. App. 161, the deputy who seized the machine in the business district of Rockford testified that he entered the arcade, that he played the machine, and from his testimony the court found that it was a gambling device. The deputy did not have a search warrant. The court pointed out that the offense was committed in the presence of the deputy, that he had the authority to make the arrest without a warrant and that the right of search and seizure is incidental to the right of search and arrest. The court stated further (176): “We know of no reason why an omission to make an arrest in such a case would deprive the officer of the right to seize the contraband machine by which an offense was committed in his presence.” The court affirmed the judgment that the machine be destroyed. In that case the deputy witnessed the machine being operated as a gambling device.

In the instant case the court sustained the motion to suppress the evidence on the ground that there was an unlawful search and seizure. The People, not having sought to exercise the machinery of division VIII of the Criminal Code, cannot now seek the aid of the court in an order to destroy the alleged gambling paraphernalia. In the matter of the disposition of the articles, this was not before the court. In our opinion, the court did not have jurisdiction over the disposition of the articles and it should not have entertained that part of the petition of Romano to return the articles to him, or the petition of the state’s attorney to destroy the same. The legislature having provided under division VIII of the Criminal Code the manner in which property, weapons and alleged gambling paraphernalia should be seized and disposed of, we are bound to assume that had it wished to provide for any different or further disposition, it would have done so. Where property or alleged gambling equipment is seized by an unlawful search, there are remedies in the civil courts, such as replevin and detinue, where the rights of citizens and of the People may be determined. It will be observed that par. 4, sec. 2, div. VIII of the Search Warrant Act provides that on a proper complaint a search warrant may issue “to search for and seize gaming apparatus, or implements used, or kept and provided to be used in unlawful gaming, in any gaming house, or any building, apartment or place resorted to for the purpose of unlawful gaming.” It would appear that this paragraph contemplates that a search warrant shall issue to search for and seize gaming apparatus, or implements only when used or kept and provided to be used in unlawful gaming in a gaming house or building, apartment or place resorted to for the purpose of unlawful gaming. This paragraph also shows a legislative intent, such as is indicated in par. 342 of ch. 38. The ownership, possession and use of such things are not prohibited by law. Their manufacture is not forbidden. They are treated as ordinary articles of merchandise, may be stored in warehouses, exposed for sale, purchased and used as furniture, or for innocent amusement, and also kept as curiosities and used for purposes other than unlawful gaming. It is the use of such articles as a means of accomplishing unlawful acts, and not the articles themselves that the law condemns. State v. Derry, 171 Ind. 18.

Paragraph 342, ch. 38, does not designate what device shall be considered a gambling device per se. For instance, it does not say that a roulette wheel or a pack of playing cards shall be considered a gaming device. To be inhibited it must be a machine or device “for the reception of money on chance or upon the action of which money is staked, hazarded, het, won or lost.” It is only a gambling device when it is a clock, tape machine, slot machine or other machine or device for the reception of money on chance or upon the action of which money is staked, hazarded, bet, won or lost, and if it is such a device or machine, it is subject to seizure, confiscation or destruction by any municipal or other local authority within whose jurisdiction it may be found. If the legislature intended to outlaw certain machines or devices because they were capable of being used as gambling devices, then it would have expressly named such devices. In Frost v. People, 193 Ill. 635, the court said (638):

“The judgment being in favor of plaintiff in error except as to the two crap tables, one faro lay-out and one roulette wheel and table, which the evidence showed to be purely gambling apparatus and implements and to have no value or use for any other purpose, the only questions to be considered relate to the alleged errors in seizing them and rendering judgment against them.”

In Bobel v. People, 173 Ill. 19, the court said (27):

“We are satisfied, as before stated, that the indictment is good, and are also of the opinion that the testimony was properly received. If for no other purpose, this evidence was proper to prove the character and purpose of the machine, — that is, that it was a device upon which money is staked or hazarded, or upon the result of the action of which money is staked, bet, hazarded, won or lost, — in other words, that it was a gambling device.”

In the case of Question Game Co., Inc. v. Ploner, 273 Ill. App. 187, the court said (191):

“The statute did not contemplate that the articles enumerated were unlawful per se as gambling devices, but declares in plain terms that the articles mentioned, or any others not specified, are and become unlawful if they are devices ‘upon which money is staked or hazarded, or into which money is paid or played upon chance, or upon the result of the action of which money or other valuable thing is staked, bet, hazarded, won or lost’.”

In the instant case no evidence was offered or introduced that the articles were machines or devices for the reception of money on chance or upon which money is staked, hazarded, bet, won or lost. The court could not take judicial notice that the articles described are gambling devices. It will be noted that in all the cases cited, evidence was introduced that the articles under discussion were gambling devices.

The People’s petition does not charge that the things were kept or used for unlawful gaming or other illegal purposes. The petition did charge that the articles were gambling equipment per se upon the action of which money is staked, hazarded, bet, won or lost. The Illinois statute does not define what is gambling equipment per se and no evidence was introduced that the articles were gambling equipment upon the action of which money is staked, hazarded, bet, won or lost. It ,is common knowledge that playing cards, dice, roulette wheels, poker chips, poker cards and poker tables and many other things which may be used in gambling are openly displayed and may be purchased in the well known department and sporting goods stores in Chicago, and that their sale is advertised .in the daily press. In arriving at our conclusions we have considered, among others, the recent cases of People v. Three Roulette Wheels, 325 Ill. App. 502, and Weis v. Allman, 325 Ill. App. 554.

For the reasons stated, the order of the criminal court of Cook county is reversed and the cause remanded with directions to expunge the order directing the restoration of the articles and to strike the petition of the state’s attorney.

Order reversed and cause remanded with directions.

Kiley and Lupe, JJ., concur.


author: Mr. Justice Kiley

text:
    Sanitary District of Chicago, Appellee, v. United States Fidelity and Guaranty Company, Appellant.
    Gen. No. 43,021.

      Heard in the third division of this court for the first district at the April term, 1944.
    Opinion filed May 18, 1945.
    Released for publication June 8, 1945.
    Eugene P. Kealy and John J. Dowdle, both of Chicago, for appellant.
    Ernst Buehler, Louis I. Fisher and Richard R. Young, all of Chicago, for appellee.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an action against the surety on a contractor’s bond wherein plaintiff recovered the amounts of judgments against it based on suits for damages arising out of a sewer improvement. Defendant has appealed.

February 20, 1936, McKay Engineering and Construction Company entered into a contract with plaintiff under which the Company agreed to build a sewer in Berwyn, Illinois. The contract required a surety bond which defendant executed on the day of the contract. The City of Berwyn authorized the improvement and plaintiff completed the work according to contract, with some modification, June 1, 1937. November 19,1937 suit was commenced by several owners of property in Berwyn for damages to their property, resulting from the construction work and judgments totaling $16,496.77 were entered against the Sanitary District. These judgments were paid by the District and after demand upon defendant for reimbursement was refused, this suit was started.

Defendant contends it is not bound on its bond except for judgments based on the Company’s negligence. Plaintiff answers that by its bond defendant agreed to pay all judgments in “consequence of the awarding of the construction contract,” and to be concluded by judgments in any suits for damages to property arising out of the improvement. There is no dispute on evidence and a question of law is involved whether the defendant surety is obliged by the bond to reimburse the District. The trial court denied defendant’s motion, at the close of plaintiff’s case and at the close of the entire case, for a finding in its favor on the question of law. In deciding the case the trial court said that there was a finding in the property damage judgment that the Company was negligent, and that that judgment was conclusive against defendant under the terms of its bond.

Plaintiff had the burden of showing that the judgment came within the terms of the bond and it relies upon the language of the instruments involved. Determination of the question requires construction of the bond. Plaintiff contends the bond must be construed in its favor and relies for support upon Gunsul v. American Surety Co., 308 Ill. 312, which points out the distinction between individual and corporate sureties, but cannot be said to support plaintiff’s contention. Allowing for the rule of construction that ambiguities are resolved against the one who drafts an instrument, we believe the language of the instruments here should not be strained to enlarge or restrict the fair meaning of the language used. Turk v. United States Fidelity Co., 361 Ill. 206; Galesburg Sanitary District v. American Surety Co., 308 Ill. App. 457. The contract between plaintiff and McKay, etc. required, pursuant to Chap. 29, Par. 15, Ill. Rev. Stats. [Jones Ill. Stats. Ann. 126.320], a bond for half the amount of the contract guaranteeing the faithful performance of all the terms and conditions of the contract, and a separate bond guaranteeing the prompt payment for labor and services. The performance bond in the amount of $557,985.00 provided that .any obligations thereunder should be void if the Company performed the contract according to its terms, specifications and plans; if it protected and indemnified the Sanitary District against all judgments in consequence of the awarding of the contract or arising out of the negligence of the Company; and if it performed other conditions not pertinent here. The first condition recited, clearly refers to the actual construction work and was fulfilled according to the District’s approval of its chief engineer’s communication that the work was completed satisfactorily June 1,1937. The second condition is vital. The final paragraph of the bond provides that it is expressly understood that any judgment against the Sanitary District in any suits for damages for injury to real or personal property or to persons arising out of any act or doing of the Company or its employees, should be conclusive against each and all of the parties to the obligation as to liability, amount, etc. In that paragraph also defendant agreed to be concluded as to amount of liability, etc., by any judgment “as aforesaid in any suits for damages for injury to real . . . property . . . growing out of any act or doing” of the Company or its employees. We agree with defendant that the last paragraph of the bond does not purport to recite the extent of defendant’s liability, but simply to preclude defendant from attacking judgments against the District coming within the terms of the bond. The words, “as aforesaid” are words of limitation of the judgments -by which defendant was to be concluded, and refer to judgments expressed in the vital condition above mentioned, those in consequence of the awarding of the contract and those resulting from the carelessness or negligence of the Company. A further description of the judgments in the final paragraph of the bond is that they shall be entered in suits for damages for injury to real property, etc. growing out of any act or doing of the Company. This further description is helpful for it enables us .to better understand which class of judgments mentioned, in the vital condition, the term “as aforesaid” refers to.

If a judgment of the kind entered against the District and the basis of this proceeding can be said to be in consequence of the awarding “of the contract,” it can only be so because the words “in consequence of” are used to describe not only liabilities arising out of the contract transaction, but also arising out of everything that follows the awarding of the contract and winding up of the improvement. If the words are so used then the words describing the alternative liability arising from the carelessness or neglect of the Company are surplusage. We should, however, give effect to all the words if that can be reasonably done. We believe that the limitation, in the last paragraph of the bond, of the judgments to those in “suits for damages for injury to real . . . property growing . . . out of,” etc., refers to the second class of liabilities described in the bond proper arising from the negligence of the Company. Furthermore, we believe that that class of liabilities includes and is coextensive with the agreement in the contract to pay all damages “for injury to real . . . property . . . growing out of any act or doing of the contractor . . . that is in¿> the nature of a legal liability.” We believe that this construction is consistent with precedent in this court. In Maezes v. City oChicago, 316 Ill. App. 464, construing a similar provision of a contract to determine the liability of the contractor thereunder, we held that where the contractor exercised due care and skill in doing the work he was not liable to pay the damages and that the construction work was not its “act or deed,” but that of the District. In Euwema Co. v. McKay Eng. & Const. Co., 316 Ill. App. 650, we also held that the liability of the contractor was limited to injuries caused by its negligence.

The plaintiff argues here that the judgment in favor of Berwyn property owners against the District is conclusive on the defendant because a finding in it attributed the damages to the acts of the Company, and moreover, that defendant was requested to defend that action in behalf of the District. It is true that the defendant was requested to make the defense and refused to do so. Its refusal was based upon its position that the action was not one covered by its bond and it took the risk of the consequences of its refusal. The question whether it is concluded by the finding is involved in the determination of the question whether the suit of the Berwyn property owners was based on the negligence of the Company. The property owners sued the District, City of Berwyn, the Company and two other defendants. The complaint consisted of four counts. The second count charged the Company and its co-contractor with negligence. This count, as well as counts 3 and 4 were eliminated from the case when, on plaintiff’s motion, all defendants except the District were dismissed. The first count, upon which trial was had, alleged that the construction work necessarily required, blasting; that the blasting and excavation and disturbance of soil wejre intrinsically dangerous; and that as a result thereof and the operation of vibrating surface machinery, the various properties were damaged. In an amendment to the first count, the property .owners alleged that among the common questions of law arising out of the case, would be that the defendants were liable “wholly without regard to the existence of any negligence . . . .” Defendant argues that this count presented a case under Section 13 of Article II of the Illinois Constitution providing that private property should not be taken or damaged for public use without just compensation. Plaintiff says it was a tort action based on the use of dynamite. The allegations were the necessary use of dynamite under the contract by the Company and the inevitable resulting, damage. A finding was made in the judgment order that the Company and not the District did the blasting which caused the damage. This finding the trial court, in the instant suit, decided was a finding of negligence. Plaintiff argues that it was a finding of negligence since the use of dynamite is intrinsically dangerous. The finding was made though the Company at the time was not a party to the damage suit and the purpose of the finding seemingly was to bring the judgments within the bond. Under the circumstances the finding, if it was of negligence, would be consistent only with the District’s liability as the Company’s superior. Even if it were a finding of the Company’s negligence, it would avail the District nothing for, nevertheless, the District as the “author of the mischief” would be responsible. City of Joliet v. Harwood, 86 Ill. 110; City of Chicago v. Murdock, 212 Ill. 9; Maezes v. City of Chicago, 316 Ill. App. 464. If the blasting was necessary, as the nature of the work, the contract, the judgments and the property damage suit indicate, it would seem clear that the action was under the Constitution.

It is true that, under the Statute requiring a bond, the District was not limited to the provisions appearing in the instant bond, however, this case rests on the bond here. Plaintiff says that defendant should have met the presumption of negligence, arising out of the finding, in the trial court, by introducing evidence to controvert it. Prom what we have said it is clear that no presumption of negligence on the part of the Company arose out of the finding. The fact that no judgment was entered against the Company in .the property damage suit, is sufficient to distinguish cases relied on by plaintiff to conclude the defendant surety and to justify admitting- the finding in evidence. The finding, since under the law it could not show negligence on the part of the Company, was immaterial.

The Company’s agreements in the contract under “Blasting, ’ ’ are wider than the indemnities in the bond. The Company agreed to indemnify the District-against all claims for damage to real property caused in any manner whatsoever by blasting. We have already held that the indemnities in the bond were limited to judgments entered in suits arising out of the negligence of the Company. We are not called upon to decide the effect of the agreements referred to between the District and the Company.

We believe that the conclusion we have reached in this case is consistent with law and public policy. The Sanitary District is authorized to do the work, the subject of the contract. The work, necessarily, required blasting. The blasting although done with due care and'skill caused damage. The damage, therefore, arose out of the proper performance of the District’s duties. We think, therefore, the complaint was founded on the constitutional liability of the District. The District alone is responsible for the damages covered in the constitutional provision. Maezes v. City of Chicago; Euwema Co. v. McKay Eng. & Constr. Co.; Nelson v. McKinzie-Hague Co., 192 Minn. 180; DeBaker v. Southern Cal. Ry. Co., 106 Cal. 257.

There is no contention that the Sanitary District has authority to indemnify itself, or that the people in the district who have paid these judgments may indemnify themselves through the District, against the payments by means of a bond furnished by a corporate surety.

For the reasons given the judgment of the Circuit Court is reversed and the cause is remanded with directions to enter judgment against plaintiff for defendant’s costs.

Reversed and remanded with directions.

Burke, P. J. and Lupe, J., concur.