author: Mr. Justice Niemeyer O’Connor, P. J.,

text:
    Josephine Durbin for use of Sam Ferdman, Appellee, v. John S. Lord, Attorney in Fact for Underwriters at Lloyd’s, London sued herein as John S. Lord, Agent in Fact for Underwriters at Lloyd’s, London, Appellant.
    Gen. No. 43,721.
    Opinion filed September 9, 1946.
    Released for publication September 24, 1946.
    Lord, Bissell & Kadyk, of Chicago, for appellant; Leonard F. Martin, Edward S. Crowell and James J. Lewis, all of Chicago, of counsel.
    Irving G. Zazove ,and Sidney Grossman, both of Chicago, for appellee.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Plaintiff procured a judgment for $5,000 and costs May 27, 1943 against Sam Ferdman for injuries sustained by her as a result of a defective metal strip on a stairway in a building at 4058 Ellis avenue, Chicago, leased and operated by Ferdman. October 25, 1945, in a garnishment proceeding, she procured a. judgment for $5,627.75 and costs against the garnishee and insurer (hereafter called the insurer) of Ferdman against the liability evidenced by the judgment against him. The insurer appeals, contending that Ferdman breached a condition precedent of the policy. Plaintiff denies that the provision of the policy relied upon by the insurer was a condition precedent, denies any breach of the provision, and in the alternative contends that if there was any breach of any provision of the policy, such breach was waived by the insurer.

The pertinent provision of the policy is: “This Agreement Is Subject To The Following Conditions. (A) Notice of Accidents. . . . Whenever requested by the Underwriters, the Assured shall aid in effecting settlements, securing information and evidence, the attendance of witnesses, and in prosecuting appeals. The Assured shall at all times render to the Underwriters all co-operation within his power.”

The evidence shows that plaintiff instituted suit on February 25, 1941 against Ferdman, the tenant, and Sharpe, the owner of the premises where plaintiff’s injuries were sustained, claiming damages in the sum of $10,000. Ferdman’s insurance was $5,000. The summons was delivered to the attorneys for the insurer and answer filed. July 12, 1941, discovery depositions of all the parties to the suit were taken, the attorneys for the insurer being present. Nothing further was done in the case until February 1943, when the case appeared on the trial call, and the attorney for the insurer charged with the defense of the case attempted to notify Ferdman and his wife of the pendency of the trial. He then learned that they were no longer at 4058 Ellis avenue, the address stated in the policy. The matter was turned over to an adjuster, who investigated and informed the attorney that Ferdman had left the Ellis avenue address some months before and that his whereabouts were not known, except that it was thought he had gone out of the State to be near a son who was in the military service. February 11, 1943 the attorneys for the insurer mailed a letter to Ferdman at the Ellis avenue address advising him that under the terms and conditions of the policy, whenever requested by the Underwriters, he was to aid in securing information and evidence and at all times render to the Underwriters all co-operation within his power, and, in behalf of the Underwriters, demand was made that he co-operate with the attorneys in the trial of the case, communicate with them and arrange to be present at the trial, and that unless he did so it might become necessary for the attorneys to ask leave of court to withdraw from the case and for the Underwriters to decline payment of any judgment that might be entered against him. In this letter Ferdman was requested to communicate with the attorneys at his earliest opportunity and arrange to be at the trial. On the same day a telegram of similar import was sent to Ferdman at the same address. Neither the letter nor the telegram was received by Ferdman. Each was returned to the attorneys, with the information that Ferdman was not at the address given.

February 16, 1943, when the case was reached for trial, the attorneys obtained a continuance until May on account of the absence of Ferdman as a material witness who would testify that the premises were in good condition at the time of plaintiff’s injury. May 12, 1943 the action was dismissed as to Sharpe. Between February 16 and May 25, 1943, when the case was actually reached for trial, the attorney for the insurer made a further effort to locate Ferdman. He telephoned all persons by the name of Ferdman shown in the city telephone directory to ascertain where Sam Ferdman was; each of the persons talked with disclaimed any knowledge as to Ferdman’s whereabouts; the owner of the building at 4058 Ellis avenue informed him that Ferdman had been out of the building for some months and that the owner did not know where he was; the attorney made a personal inquiry at the building without obtaining any information. Defendant’s motion for a continuance was denied and the case proceeded to trial. The attorney participated in the trial in behalf of Ferdman, in his absence, and without any witnesses to call in his behalf.

On June 3, 1943, after the entry of judgment, the attorneys again wrote Ferdman at the Ellis avenue address, referring to their former letter and telegram, reciting what had been done in court, including the entry of judgment for $5,000 against Ferdman, quoted the provisions of the policy relating to co-operation by the insured and stating that by reason of Ferdman’s failure to comply with the provisions of the policy, they, the attorneys, would advise the insurer that it was not liable to pay the judgment; that they had conducted the defense as best they could under the circumstances and that without intending to waive any of the rights of the insurer to deny liability to pay any judgment entered or affirmed against Ferdman, they would appeal; that Ferdman was at liberty to arrange a supersedeas bond if he saw fit, to procure counsel of his own selection to represent him in any further proceeding or in co-operating with the attorneys for the insurer, but that neither the insurer nor the attorneys would be liable for any charges made by any counsel selected by Ferdman. This letter was returned by the postoffice. The appeal was perfected, briefs filed on behalf of Ferdman, and the judgment affirmed by this court February 28, 1944. (321 Ill. App. 642.) Leave to appeal to the Supreme Court was denied. (326 Ill. App. xiv.)

This is a garnishment action in which the rights of the plaintiff are the rights, if any, of her debtor against his debtor. Schneider v. Autoist Mut. Ins. Co., 346 Ill. 137, 139. The provision of the policy quoted above is a condition precedent the breach of which bars action on the policy. Schneider v. Autoist Mut. Ins. Co., supra; Muthart for use of Zitnik v. Burik, 327 Ill. App. 170, 178-180. It is common to policies of this nature, the phraseology varying slightly. It requires the insured, whenever requested, to aid in effecting settlements, securing information and evidence, the attendance of witnesses and in prosecuting appeals, and at all times to render to the Underwriters all cooperation within his power. The insurer’s claim of breach of this condition rests solely upon Ferdman’s departure from Chicago without notifying the insurer of his intention to depart or of his new address. There is no evidence or suggestion of any collusion between Ferdman and the plaintiff, or any misrepresentation by Ferdman to the insurer, or any failure to comply with any request received by him from the insurer. No improper motive for his departure is shown or suggested. So far as the evidence discloses, he went to California to be near his son who was in the armed service of the country. The evidence shows no activity by the insurer or its attorneys between the taking of the depositions of Ferdman in July 1941, and February 1943, when the case first appeared upon the trial call. There is no evidence of any advice to Ferdman of the need of his appearance at the trial or the necessity of keeping the insurer advised of his whereabouts, or the need of any further co-operation from him.

In support of its contention the insurer cites the case of Patton v. Washington Ins. Exchange, 288 Ill. App. 594, where in considering the failure of the insured to respond to a letter from the attorneys for the insurer receipted for by the wife of the insured, the court said: “Whether Bair did, or did not, receive this notice, seems to us to be unimportant for it was Bair’s duty to keep in touch with his attorneys in regard to his own lawsuit. The evidence clearly shows that he neither appeared to take his deposition, nor on the day the case was set for hearing, nor when it was finally heard.” No authorities are cited to support the statement. The decisions of the various states on this question are in conflict. In Finkle v. Western Automobile Ins. Co., 224 Mo. App. 285, 26 S. W. (2d) 843, in which many authorities are cited, the court was considering the effect of the departure of the insured from St. Louis without notice to the insurer and without giving the new address. The provisions of the policy were substantially the same as in the present case, but the facts were much stronger in favor of the insurer in that its attorneys had several times advised the insured of the necessity for holding himself available for the trial. The court said (p. 848): “Under such a situation, it appears that there are two ultimate questions to be determined: First, whether the assured was guilty of bad faith in leaving; and, second, whether the company exercised reasonable diligence in ascertaining his whereabouts, and in procuring his attendance at the trial, or his deposition for use in lieu of a personal appearance.” In affirming the judgment for the plaintiff in a garnishment proceeding the court held that the evidence sustained a finding against the garnishee on both of the ultimate questions in the case and justified an inference that failure of the insured to notify the attorney of the insurer of their departure was due to ignorance, inadvertence, or mistake, and not to bad faith and fraudulent motives. In Pigg v. International Indemnity Co., 86 Cal. App. 671, 261 Pac. 486, the court affirmed a judgment in favor of the injured party against the insurer. The provisions of the policy were substantially the same as in the policy before us. The insured delivered the summons and complaint to the attorneys for the insurer, made a statement of the accident to them and verified the answer filed in the case; on March 24,1921 the case was set for trial on June 28, 1921 and the attorneys for the insurer made no effort to get in touch with the insured until June 24, 1921; the insured had gone to Japan, and letters and notice to him were not received by him. The court said: “We may not say that under this evidence the court was not justified in concluding that the assured was not sufficiently advised by those whom the insurance carrier had employed to make his defense; that his going to Japan was in ignorance of any necessity for his remaining here until the trial, or in ignorance of the date set for the trial, or due to failure of counsel to advise him that it was necessary to keep in touch with the attorneys.”

In the present case the insurer was obligated to defend the action brought against the insured by plaintiff. The insured was precluded from interfering with the defense or with any settlement of the claim, except under the direction and at the request of the insurer. He had a right to wait for such direction or instruction. He had complied with all requests of the insurer communicated to him and had appeared and given testimony in the taking of his deposition in the office of the attorneys for the insurer. Unless advised to the contrary it was natural for him to believe that he had given his testimony in the case. For nineteen months no effort to communicate with him was made by the insurer. His reasons for leaving were legitimate and wholly unconnected with any attempt to injure or defraud the insurer. There was no controverted question of fact. The decision depended wholly on the conclusion to be drawn from the facts, and the facts do not show a breach of the condition requiring cooperation, by the insured.

The alleged waiver by the insurer of its defense by appearing for the insured in the trial court and on appeal in an attempt to protect the interest of the insured and defeat plaintiff’s claim, is extensively argued by both parties, and plaintiff’s position was sustained by the trial court. The point, in our opinion, is untenable. As stated above, the insurer was obligated to defend plaintiff’s action, unless the insured had breached the conditions of the policy. At the time of the trial the insurer had no definite knowledge as to the reason why the insured failed to appear. There may have been circumstances, such as the death of the insured, excusing his absence from the trial and failure to communicate with the attorneys, in which event the attorneys would have been obligated to defend the action. They were not obliged to withdraw in order to preserve the insurer’s defense of breach of condition. The insured suffered no damage by the defense made in his behalf by the insurer, and the doctrine of waiver, or estoppel in pais, has no application. Dwelling House Ins. Co. v. Dowdall, 159 Ill. 179,185; Phenix Ins. Co. v. Grove, 215 Ill. 299, 302; Malloy v. City of Chicago, 369 Ill. 97, 104; Lake Shore Country Club v. Brand, 339 Ill. 504, 524.

The judgment is affirmed.

Affirmed.

O’Connor, P. J.,

concurs. Mr. Justice Matchett concurred in the foregoing opinion but passed away before the opinion was filed.


source: Caselaw Access Project

author: Mr. Justice Niemeyer

license: Public Domain

text:
    Anthony J. Prasnikar et al., Appellees, v. George Harmeling et al., Appellants.
    Gen. No. 43,849.
    Opinion filed September 9, 1946.
    Released for publication September 24, 1946.
    W. Edward Fritz, of Chicago, for appellants.
    Keuneth G. Meyer, of Chicago, for appellees.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Plaintiffs in a forcible detainer action move to dismiss the appeal of the defendants from a judgment granting possession to plaintiffs because of the failure of defendants to file their notice of appeal and their appeal bond within five days from the entry of the judgment. The case was originally brought before a justice of the peace; defendants appealed from the judgment for possession entered by the justice of the peace; on that appeal a trial de novo was had in the circuit court of Cook county resulting in a similar judgment. It is defendants’ appeal from this judgment that plaintiffs have moved to dismiss.

Defendants contend that the provision of section 18 of the Forcible Entry and Detainer Act [Ill. Rev. Stat. 1945, ch. 57, par. 19; Jones Ill. Stats. Ann. 109.279] requiring the party appealing to file notice of appeal and bond within five days from the rendition of the judgment, has no application to an appeal from a judgment entered in the circuit court in an action instituted before a justice of the peace and appealed to the circuit court. In support of their contention they cite Gentle v. Butler, 278 Ill. App. 371, and Veach v. Hendricks, 278 Ill. App. 376, which hold that there is no provision in the Forcible Detainer Act regulating an appeal from a court of record where the case has been tried in such court on appeal from a justice of the peace, and that such appeal from a court of record is governed by the provisions of the Civil Practice Act. With this conclusion we do not agree.

Section 18 of the Forcible Detainer Act grants an appeal to the party aggrieved by the verdict of the jury or decision of the court “upon any trial had under this Act,” provided notice of appeal and bond shall be filed within five days from the rendition of the judgment. The trial in the circuit court on an appeal from the justice of the peace is a trial de novo, is under the Forcible Detainer Act and governed by all its provisions and is identical with the trial in the circuit court of a forcible detainer action initiated in that court. Under the holding in the cases cited by defendants an appeal from a judgment of the circuit court in an action of forcible detainer commenced in that court must be perfected within five days, but an appeal from a judgment of the same court in an action of forcible detainer appealed from a justice of the peace may be taken within the time specified in the Civil Practice Act 'for appeals; that is, within 90 days from the entry of the judgment as a matter of right, or within one year upon leave of court. This is contrary to the express wording of the statute, which grants an appeal from the judgment of "the court “upon any trial had under this Act” provided it is taken within five days. It also defeats the purpose of the statute, which was to create a summary remedy in which the rights of the parties would be speedily determined and an appeal permitted only if taken within the time specified in the statute. No reason has been suggested for prescribing one time for appeal in cases initiated in the circuit court and another for cases determined in that court on appeal from a justice of the peace.

The motion to dismiss the appeal is allowed.

Motion to dismiss appeal allowed.

O’Connor, P. J., concurs.


author: Presiding Justice O ’Connor.

text:
    Matthew T. Finn et al., Appellees, v. Emmaus Evangelical Lutheran Church et al., Appellants.
    Gen. No. 43,772.

      opinion filed September 13, 1946;
    released for publication September 24, 1946.
    J. Edward Jones, for appellants; Payton J. Tuohy, for appellees.
   Opinion by

Presiding Justice O ’Connor.

Not to be published in full.


author: Mr. Presiding Justice Wolfe

text:
    County of Winnebago, et al., Appellants, v. Richard Harrington et al., Appellees.
    Gen. No. 10,066.
    Opinion filed April 18, 1946.
    Behearing denied October 3, 1946. Released for publication October 3, 1946.
    Max A. Weston, State’s Attorney, and Robert R. Canfield, Assistant State’s Attorney, for appellants.
    Large, Reno & Zahm and Stanley H. Guyer, all of Rockford, for cross appellants; Ralph S. Zahm and Stanley H. Guyer, both of Rockford, of counsel.
    Welsh & Welsh and Nelson & Nelson, all of Rockford, for appellees; C. K. Welsh and C. H. Nelson, both of Rockford, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

This proceeding originated in the circuit court of Winnebago county, in which the County of Winnebago and others sought to enjoin the defendants, the Harrington Brothers, from violating the provisions of a county zoning ordinance. To the petition the defendants filed their answer. A number of adjoining property owners were granted permission to intervene. The intervenors filed a petition for alternate relief, which sought to enjoin the defendants from making any further additions to a shop building or expanding it in any way. The defendants filed an answer to this petition. A hearing was had before the trial court resulting in a decree substantially in accordance with the prayer of the petition of the intervenors, but denied the relief sought by the County of Winnebago. The decree permitted the defendant to complete the construction of its addition referred to in the record as building “C,” but restrained the defendants from constructing any further building of nonconforming use, upon the premises of the defendants. The County of Winnebago has prosecuted an appeal from that part of the decree denying the prayer of their petition. The Harrington Brothers have prosecuted a cross-appeal from that part of the decree, which restrains them from any further construction, as provided in the decree.

The locality in which the defendants have their building and the intervenors, is zoned for “agricultural purposes,” and not for residential purposes. The building “C,” referred to in the proceeding is a small addition of about 28 by 40 feet to the building already used by the defendants as a repair shop for automobiles, etc. It is conceded by all the parties that the Harrington Brothers have been using the ground, on which this addition is being constructed, in the operation of their business, and the new building only covers that portion of the premises now being used. It is not claimed by anyone that there is any objectionable noise, smoke or odor caused by the use of the premises.

It is insisted by the appellees that as it is applied to this property, and the use that is being made of it, the ordinance is unreasonable, capricious and void. The interveners, 16 owners of residence properties contiguous to, and near the property in question, state in their printed argument that they are convinced that the decree the trial court entered, is manifestly fair and equitable, and that they are entirely satisfied, and agree the court was correct in allowing the addition “ C, ” made by the defendants to the premises in question, to be finished and to remain. They also claim that that portion of the decree perpetually enjoining the defendants from making any further, or additional improvements, is correct, and does not injure the defendants in any way.

There is no proof in the record that the erection of this addition to the property, already used by the defendants in their business, would in anywise interfere with, or be offensive to "the community surrounding the defendants’ property. The property owners near it are not complaining about the erection of this addition. The work that the defendants would do in the new building evidently would be less objectionable if inclosed in a building rather than to have the work done out in the open. Under the circumstances, as disclosed by this record, we are satisfied that that part of the decree of the trial court which gave the defendants permission to continue with the erection of building ‘ C, ” is correct.

The Harrington Brothers, by their cross-appeal, have challenged that part of the decree which prevents them from erecting any future additions to the building known as A, B and C. There is no allegation, either in the original complaint, or the interveners ’ petition that the defendants contemplate erecting any building on the premises except to complete the addition “C.” The evidence shows that the defendants do not contemplate erecting any other buildings on the premises. In order to support a decree, there must be allegations and proof of the matters contained in the petition. In the present case, the record is wholly devoid of any allegation, or proof to support that part of the decree restraining the defendants from future improvements to their building. That part of the decree should be reversed.

That part of the decree permitting the completion of the improvement “C,” is affirmed. That part of the decree enjoining the defendants from future improvements is reversed.

Affirmed in part and reversed in part.


author: Mr. Presiding Justice Stone

text:
    Walter W. Smith, Minnie Smith and Nellie Smith, Appellants, v. Farmers and Merchants Bank of Carlyle, and Joseph H. Schaefer and H. P. Lampen, Trustees, Appellees.
    Term No. 46F4.

      Opinion filed May 6, 1946.
    ¡Rehearing denied October 4, 1946. ¡Released for publication October 5, 1946.
    Hill & Dolan, of Mt. Vernon, and Wham & Wham, of Centralia, for appellants.
    Joseph B. Schlarman and Maurice B. Johnston, both of Carlyle, for appellees.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an action brought by Walter W. Smith, his divorced wife, Minnie Smith, also known as Mrs. B. V. Bamsey, and his present wife, Nellie Smith, plaintiffs appellants, who will be hereinafter designated as plaintiffs, against the Farmers and Merchants Bank of Carlyle, Illinois, Joseph H. Schaefer, and H. P. Lampen, trustees, defendants appellees, who will be hereinafter designated as defendants. In the complaint it is sought to have a warranty deed made and executed by Walter W. Smith and Mrs. B. V. Bamsey, to the Farmers and Merchants Bank of Carlyle, declared to have been given as security for the payment of a promissory note for $700 owed by said parties to the bank. Plaintiffs also pray for an accounting between the parties.

The amended complaint filed by plaintiffs alleged in substance that Walter W. Smith and Minnie Smith were husband and wife from July 18, 1903 until May 15, 1933, when they were divorced; that in their divorce decree their property rights were not settled; that she still retained an inchoate right of dower in the lands in controversy; that Walter W. Smith and Nellie Smith were husband and wife at the time of the filing of the amended complaint herein, having been married on June 22, 1935; that being the owner of a three-eighths interest in the land in question, they joined by Mrs. B. V. Bamsey, then divorced from him, Smith made, executed and delivered to the Farmers and Merchants Bank of Carlyle, a deed purporting to convey a three-eighths interest; that this deed was not an absolute conveyance but merely security for the payment of a certain indebtedness evidenced by a promissory note in the original sum of $700, then owing by Walter W. Smith and the then Minnie Smith to the Farmers and Merchants Bank of Carlyle; that said conveyance was subject to the inchoate right of dower of plaintiff Nellie Smith.

Said amended complaint further alleged that on August 1, 1940 the said bank wrongfully made a quitclaim deed to J. B. Lampen as trustee and that thereafter the said J. B. Lainpen and wife wrongfully executed a quitclaim deed to Joseph H. Schaefer and H. P. Lampen, trustees, and that defendants received rents, benefits and monies far in excess of that required to satisfy the indebtedness claimed to be secured as aforesaid.

To the amended complaint defendants filed their answer admitting the marriage and divorce of the plaintiffs Walter W. Smith and Minnie Smith and the purchase of the land by plaintiff. All other material allegations were denied. The answer avers that plaintiffs had recognized the ownership of the land in the defendants, and that plaintiffs were guilty of laches.

Upon a trial by the court, the amended complaint was dismissed for want of equity and on June 27,1945, the trial court approved and entered its final judgment therein. Plaintiffs prosecute their appeal to this court.

The record discloses that subsequent to the acquisition of the property in question by the plaintiff, Walter W. Smith, Paul V. Schaefer and Gordon Houck operated the land as the Kaskaskia Eiver Hunting and Fishing Club, for the purpose of selling membership to various people for hunting and fishing rights. An account handled by Paul V. Schaefer as trustee, was transferred to the Farmers and Merchants Bank. After the bank took over the account Joseph H. Schaefer, president of the bank handled said account and the income and disbursements from said property.

On February 5i, 1934 plaintiff Walter W. Smith, being the owner of the three-eighths interest in the land in question, known as the White Oak Island land, consisting of 520 acres, was indebted to defendant, the Farmers and Merchants Bank on several unsecured personal notes, totaling $700. Upon the bank demanding payment, Smith, after some negotiations, joined by his wife, executed a note for $700 and a trust deed conveying the three-eighths interest in said property to said Farmers and Merchants Bank on February 5, 1934. This trust deed was recorded.

Subsequent to the execution of the foregoing note and trust deed, the interest on said note became due and Smith was asked to call at the bank and pay the interest. Smith testified that after several talks about the matter, Joseph H. Schaefer, president of the bank, asked him what he, Smith, could give as collateral, to which Smith replied that he had the three-eighths interest in the White Oak Island property and other lands and he could have all or any part thereof. Schaefer, according to Smith, said that he would take it up with the directors of the bank and let him know; that Smith returned the next day and Schaefer informed him that he would take the White Oak Island property to secure the bank’s note for the $700 whereupon Schaefer drew up the deed and Smith signed it. This was done on June 19, 1935.

Smith further testified that at this conference Schaefer asked where Minnie Smith, divorced wife of Walter'W. Smith lived and Smith replied that he did not know her address, but that she lived in Yakima, Washington. His testimony was also to the effect that defendant Joseph H. Schaefer told him at this time that he could get the land back when he paid the note.

Schaefer’s testimony is to the effect that Smith told him, after several talks at the bank, that the only thing he could do was to deed him some property in settlement of the note, mentioning several pieces of property, among them the three-eighths interest in the White Oak Island land; that the witness replied that he would take it up with the board of directors of the bank and advise him; that the directors did approve acceptance of the three-eighths interest in the land in question in settlement and liquidation of the note. The minutes of the meeting of the board of directors were admitted in evidence as defendant’s exhibit 8. Schaefer further testified that the deed was given to Smith, with the request that he secure his divorced wife’s signature, and that the next time he, Schaefer saw the deed it was either returned to him by Smith or Mrs. R. Y. Ramsey.

Plaintiff Minnie Smith (Mrs. R. Y. Ramsey) testified that she was the divorced wife of plaintiff Walter W. Smith, that she received the deed in question at Yakima, Washington in an envelope of the Farmers and Merchants Bank; that the envelope contained the deed and a letter; that she did not know what became of the envelope or the letter; that the substance of the letter was to the effect that Mr. Smith was in and asked him, (Schaefer) to mail the deed for her to sign as security on the note that she had at the bank; that any time she met her obligation — that is the note paid, she would get the deed back.

Plaintiff Minnie Smith is corroborated to some extent by the deposition of Don Tunstall, an attorney in Yakima, who testified that she came to him for advice, and to take the acknowledgment on the deed, and that when she came to his office she brought a letter from a bank in Illinois.

The evidence discloses that the income from this real estate was small and not sufficient to pay the taxes, and that subsequent to the payment of such taxes, in September 1935, there was no balance remaining in the Kaskaskia River Club account. It appears that defendant Joseph H. Schaefer caused these taxes to be paid.

The evidence further indicates that while plaintiff Walter W. Smith had some income, that after execution of the deed in question he made no payments to the bank on his alleged indebtedness and made no inquiry as to the condition of said alleged indebtedness.

A number of witnesses testified on behalf of the plaintiffs that the property in question was worth from $10 to $15 an acre, while other witnesses called for defendants, testified that it was worth from $4 to $5 an acre. The credibility of these witnesses and the matter of the weight of their testimony, on this conflicting question of fact, was a question for the trial court to determine.

The record further shows that on August 12, 1935, Joseph H. Schaefer, president of the bank and trustee in the trust deed, released that trust deed of record.

It is alleged as error, among other things, that the decree of the court is contrary to the manifest weight of the evidence, and contrary to equity and good conscience. It is the position of plaintiffs that the warranty deed executed hy plaintiffs did not constitute an absolute conveyance, but was given only as additional security for the payment of the indebtedness to the bank on the remaining balance of $668.

It is legally presumed that an absolute conveyance of real estate is what it purports on its face to be and the burden of proof rests upon the party asserting that the deed absolute is in fact a mortgage or additional security for a mortgage indebtedness and was so intended by the parties. Such proof must be clear, satisfactory and convincing. Steinhauer v. Botsford, 327 Ill. App. 296.

The intention of the parties is one of the controlling factors in an action to declare a deed absolute on its face to be other than what it purports to be, i.e., security for an existing debt. Steinhauer v. Botsford, supra. Thompson on Real Estate, Vol. 9, pages 255 to 306, inclusive, ch. 64, secs. 4880 to 4909, inclusive.

We find little in this record to indicate that the parties by their subsequent conduct, considered this deed to be anything but absolute. In spite of the fact that in 1940, after securing the sum of $2,400 from a leasing of other lands, plaintiff Walter W. Smith did nothing toward paying off the supposed indebtedness at the Farmers and Merchants Bank. Nor did he make any inquiry, nor evidence any interest in the status of that indebtedness, until he instituted the present action.

On August 12, 1935, Joseph H. Schaefer, trustee, released of record the trust deed executed by Walter W. Smith and Minnie Smith., It is reasonable to assume that by so doing defendant Schaefer considered the note paid and the debt extinguished. The minutes of the bank, defendant’s exhibit No. 8, indicate that the bank accepted the offer of Walter W. Smith and Minnie Smith to deed the three-eighths interest in the real estate in question in full settlement and liquidation of their debt to the bank.

Apparently the property in controversy was not of any appreciable value at the time of the execution of the deed which is questioned. The evidence further indicates that there was insufficient income from the property to pay the expenses from 1935 to 1939. With reference to adequacy of consideration, as we have already said, there was a conflict of testimony in the record. This conflict presented a question of fact for the court. Fraud is never presumed. It is an affirmative matter and must be proved like-any other fact. Mackie v. Schoenstadt, 307 Ill. 398; Voris v. McIver, 339 Ill. 340. There is lacking any evidence of fraud or overreaching on the part of the defendants relating to the transaction with plaintiffs.

For approximately seven years plaintiffs took no steps to assert their claim that the warranty deed executed by Walter W. Smith and Minnie Smith (Mrs. R. V. Bamsey) was not an absolute conveyance, but was given only as security for the payment of the indebtedness due the bank. The rule applicable to this situation is clearly enunciated in Capper v. Poulsen, 321 Ill. 480, where the court said at page 483, “Good faith and reasonable diligence of parties seeking the relief of a court of equity are the elements that call it into activity. In the absence of these elements the court remains passive and declines to extend its aid. It has always been the policy of equity to discountenance bad faith and neglect. A party who challenges the title of his adversary to real property must be diligent in discovering that which will avoid the title or render it invalid and diligent in his application for relief. (Booker v. Booker, 208 Ill. 529; Fitch v. Miller, 200 id. 170; Walker v. Warner, 179 id. 16.) The fact that plaintiffs Walter W. Smith and Minnie Smith have shown no circumstances which would excuse their delay in asserting their claim to the premises, is applicable as well to plaintiff Nellie Smith.

The Appellate Court will not reverse the findings of the trial court in a trial without a ¡jury nor of a chancellor where the witnesses are heard by him, unless the findings are manifestly contrary to the weight of the evidence. People ex rel. Hirsch v. Nagel, 243 Ill. App. 490; Stephens-Adamson Mfg. Co. v. Fireman’s Fund Ins. Co., 257 Ill. App. 443; Wear Proof Mat Co. v. Bastian-Morley Co., 268 Ill. App. 455; Maton Bros., Inc. v. Central Illinois Public Service Co., 269. Ill. App. 99, aff’d 356 Ill. 584. We are not inclined to so hold. We believe that the trial court did not err in dismissing plaintiffs amended complaint for want of equity, and in denying the relief prayed for. The decree of the circuit court of Clinton county is affirmed.

Affirmed.

Bartley and Culbertson, JJ., concur.


text:
    Joseph Vella and Anna Vella, Appellees, v. Frank Pour, Jr., and Flora Pour, Appellants.
    Term No. 46F8.

      Opinion filed May 6, 1946.
    Rehearing denied October 4, 1946. Released for publication October 5, 1946.
    Henry B. Eaton, of Edwardsville, for appellants.
    Simpson, Reed & Burroughs, of Edwardsville, for appellees.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This, is an appeal from the circuit court of Madison county, to review a judgment entered on June 9, 1945, in favor of Joseph Vella and Anna Vella, plaintiffs appellees, who will be referred to herein as plaintiffs and against Frank Pour, Jr., and Flora Pour, defendants appellants, who will be referred to herein as defendants. By this judgment it was adjudged that the motion of plaintiffs to strike amended motion filed March 10, 1945 was sustained and motion of defendants to recall execution and to set aside and vacate an original judgment was denied.

' It appears from the record that plaintiffs were operating what was known as the “Busy Bee Bakery,” a bakery shop, on Main street in Edwardsville, Illinois, for several years prior to August 1, 1934. On that date plaintiffs and defendants met in the office of the attorney for plaintiffs to draw up papers for the transfer of the bakery equipment to defendants.

The total consideration agreed upon for the sale of this personal property was $7,500, of which amount defendants paid down the sum of $2,000. The balance of the principal, $5,500 was secured by the execution of 72 judgment confession notes, 71 being for the principal sum of $76 and the last one, the seventy-second for $104. This last note would become due 72 months after date, or on August 1, 1940. A chattel mortgage was executed by defendants, and the notes all carried the notation on their face that the note was secured by chattel mortgage.

It is claimed that at the time of the execution of the chattel mortgage and the notes, defendant Frank Pour, Jr., asked whether anything should be put in the bill of sale or contract as to the sale of the good will and that plaintiffs would not again engage in the bakery business in Edwardsville, Illinois, and that at that time plaintiff, Anna Vella stated, “We are tired of the bakery business and you do not need to worry about us going into that business again. We are going into the tavern business, which will be easier on us. ’ ’ No part of this statement was incorporated in the notes or chattel mortgage, nor made a part of any written agreement between the contracting parties.

It appears that after engaging in several business enterprises in St. Louis, and in Edwardsville, on November 30, 1937, plaintiffs opened a bakery in Edwardsville, not far from the “Busy Bee Bakery.” In the meanwhile defendants had paid off 40 of said notes. At about the time that the forty-first note was due, defendants, through their attorney, by mail, notified plaintiffs that they were of the opinion that plaintiffs had violated their agreement with defendants and that they, the defendants felt that they should not continue to keep up their payments on the notes.

The date of this letter was December 30, 1937. On November 24, 1943, plaintiffs secured a judgment by confession, in the circuit court of Madison county against defendants, in the sum of $3,434.71.

Defendants on December 23, 1943 filed a motion to set aside the judgment and for leave to plead, answer or demur, and to file a counterclaim, to which was attached affidavit of merits. This affidavit set forth in substance the details of the transfer of the bakery property, the consideration, the execution of the notes, and the averment that the plaintiffs had said in substance that they were tired of the bakery business in Edwardsville and would never engage in said business and that defendants need have no fear thereof; that plaintiffs had violated said promise not to engage in the bakery business and had opened a bakery in Ed-wardsville ; that when the plaintiffs were notified that defendants would pay no more of the notes, that plaintiffs agreed and made no further effort to collect said notes.

Plaintiffs on January 19, 1944, filed a motion to strike the above motion of defendants. On February 6, 1945, the court allowed plaintiffs’ motion to strike and denied defendants’ motion to open up the judgment, previously rendered. Defendants then filed an amended motion, to which plaintiffs filed a motion to strike, which was sustained by the court on June 9, 1945, and the motion of defendants to vacate the judgment was denied, from which final order defendants prosecuted their appeal to this court.

Many errors are assigned as being sufficient to cause a reversal of the judgment of the lower court, but most of them are subsidiary to and the objections therein contained are embodied in the primary objections that the court erred in denying the motion of defendants to set aside the original judgment and in sustaining plaintiffs’ motion to strike.

• In support of these errors relied upon for reversal it is strenuously urged on behalf of defendants, that the affidavit filed by defendants alleged a promise.on the part of plaintiffs not to engage in the bakery business, that the failure to keep that promise constituted a failure of consideration, and that defendants had. a right to set up their damages alleged to be sustained by them, by way of recoupment.

The general rule, applied on a motion is that equitable relief will be granted against a judgment by confession to the extent only that it appears the judgment debtor has a legal or equitable defense, to the debts upon which the judgment is founded. First Nat. Bank v. Havens & Geddis Co., 61 Ill. App. 213, rev’d 162 Ill. 35; Handley v. Moburg, 266 Ill. App. 356.

The affidavits of defendants disclose no legal or equitable defense. The substance of the affidavits in support of their motion and amended motion to vacate and set aside the original judgment is that it was part of the consideration for the trade between the parties, that plaintiffs would not again engage in the bakery business, and having done so, defendants were damaged and lost profits and were entitled to a setoff as against the claim of plaintiffs. We find no definite or binding obligation, as expressed in the affidavits, on the part of plaintiffs for any valuable consideration to refrain from engaging in the business that they were disposing of to defendants. Neither the notes nor bill of sale contain any such provision. The chattel mortgage is not a part of the record of this case, but it is not claimed that it contained ahy such- provision. Conversations had before or at the time of the execution of a contract are merged in the written instrument. Graham v. Sadlier, 165 Ill. 95; Boylan v. Cameron, 126 Ill. App. 432; Broxham v. Harrington, 197 Ill. App. 454; Davis v. Fidelity Fire Ins. Co., 208 Ill. 375; Sheehan v. Reardon, 223 Ill. App. 365; Adams v. Eisenstein, 248 Ill. App. 559. Certainly a written mortgage would supersede all negotiations leading to its execution. Lane v. Allen, 162 Ill. 426; Wolf v. Lawrence, 276 Ill. 11; Illinois Refining Co. v. Welch, 341 Ill. 292.

In the case of Stead v. Craine, 256 Ill. App. 445, it was held that affidavits to vacate a judgment entered by confession under a power of attorney in a lease, which purported to set forth agreements not contained in the lease, were insufficient, since they were merely an attempt to vary the terms of a written agreement by parol evidence.

It is claimed on behalf of defendants that there was a failure of consideration. Where the consideration of a promissory note is the promise of the payee to perform a certain act in the future the consideration does not fail from the nonperformance of the promise, since it is the promise to perform, and not the performance which constitutes the real consideration. Smysor v. Glasscock, 256 Ill. App. 29; Gage v. Lewis, 68 Ill. 604.

There being no failure of consideration, and no defense to the action on the notes, judgment by confession will not be opened up merely to allow defendant to plead a setoff. Smysor v. Glasscock, supra; Stead v. Craine, supra.

Upon a motion to vacate a judgment the law reposes in the court a liberal discretion and unless an abuse of that discretion is shown, the court’s action will not be disturbed. We do not believe that there was an abuse of that discretion by the trial court. The judgment of the circuit court of Madison county is affirmed.

Affirmed.

Bartley and Culbertson, JJ., concur.


author: Mr. Justice Bartley

text:
    Isadore Jung et al., Appellees, v. Dixie Greyhound Lines, Inc. and New Era Transport, Inc., Appellants.
    Term No. 46F2.
    Opinion filed May 6, 1946.
    Rehearing denied October 4, 1946. Released for publication October 5, 1946.

      Kramer, Campbell, Costello & Wiechert, of East St. Louis, for certain appellant.
    Baker, Lesemann, Kagy & Wagner, of East St. Louis, for certain other appellant.
    Johnson & Johnson, of Belleville, for appellees.
   Mr. Justice Bartley

delivered the opinion of the court. .

The questions for consideration by the court are whether there is any proof of negligence against the appellants respectively, or whether the judgments of the circuit court of St. Clair county are contrary to the manifest weight of the evidence as against the appellants respectively. Separate appeals are prosecuted by the appellant, Dixie Greyhound Lines, Inc., and the appellant, New Era Transport, Inc., and each asserts that the other is solely liable. The trial court, in a hearing without a jury, found both appellants liable and entered judgments on August 1, 1945, against both appellants' and in favor of the appellee, Isadore Jung, in the sum of $900; in favor of appel-lees, Emil Vonderheid and Dora Vonderheid, for $1,600; and in favor of appellees, Jacob J. Wittmann and Mae Wittmann, for $450.

The judgments were entered in a suit by the appel-lees to recover property damages to their dwelling houses and premises sustained on July 24, 1943, as a result of a fire which occurred following a collision between-a bus of the Dixie Greyhound Lines, Inc., and a- .-tractor. and trailer loaded with 3575 gallons of gásoline of'-the appellant, New Era Transport, Inc. The amount' of damages sustained by the appellees was stipulated to by the appellants with an express denial of liability on the part of each, and the judgments as to amount, if liability exists, are not in question. .

By the pleadings, the appellant, Dixie Greyhound Lines, Inc., was charged with operating a bus at a high and dangerous rate of speed in violation of par. 146, ch. 95%, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 85.178]; failure to keep a proper lookout ahead for other vehicles, including the truck and trailer of appellant, New Era Transport, Inc.; operating its bus carelessly, failing to observe the motor truck of the appellant, New Era Transport, Inc., which was in the act of making a left turn; and carelessly failing to observe the truck and trailer of appellant, New Era Transport, Inc., which was directly in front of and in the path of the bus of the appellant, Dixie Greyhound Lines, Inc.

The appellant, New Era Transport, Inc., was charged with violating par. 166, ch. 95½, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 85.198] by carelessly making a left turn of its truck without using proper caution and without due regard for the approach of the bus of the appellant, Dixie Greyhound Lines, Inc., from the opposite direction; with violating said sec. 166 by carelessly making a left turn .of its truck; carelessly failing to keep a proper lookout ahead for other vehicles, including the bus of the appellant, Dixie Greyhound Lines, Inc.; operating its truck, carelessly failing to observe the bus of the appellant, Dixie Greyhound Lines, Inc., which was approaching; and operating its truck, carelessly failing to observe said bus which was directly in front of and in the path of the truck of the appellant, New Era .Transport, Inc. .

In considering the questions raised as to whether there, is any evidence against the appellant respectively to .sustain the conclusions of the ..trial court, or. whether the conclusions of the trial court were, contrary to the manifest weight of the evidence, there is required an examination of the evidence and -the record, which we have done. In this consideration, however, it should be borne in mind that negligence is ordinarily a question of fact, and that where the evidence of material facts is conflicting, or where, on undisputed facts, fair-minded men of ordinary intelligence may differ as to the inferences to be drawn, or where, on even a conceded state of facts, a different conclusion would reasonably be reached by different minds, in all such cases, negligence is a question of fact. The ultimate fact to be determined is the existence or nonexistence of negligence. With all the facts considered, if there is a reasonable chance of conclusions differing thereon, then it is a question for the trier of the facts. Negligence may become a question of law where, from the facts admitted or proven, there is no reasonable chance of different reasonable minds reaching different reasonable conclusions, or it may also become a question of law if a single material fact is conclusively shown or uncontradicted, the existence or nonexistence of which is conclusive of a right of recovery. (Wabash Ry. Co. v. Brown, 152 Ill. 484; Russell v. Richardson, 302 Ill. App. 589; Hurst v. Madison Coal Corp., 201 Ill. App. 205.)

We turn now to a consideration of the evidence and the facts, as shown by the record. Appellees are property owners along Mascoutah avenue in an outlying residential section of the 'City of Belleville, Illinois, near a point where it intersects with McClintock street in said city. Mascoutah avenue runs in a generally east and west direction. State Route No. 15 runs over Mascoutah avenue at this point in Belleville. McClintock street runs in a generally north and south direction and ends at its intersection with Mascoutah avenue at a point near the homes of the appellees. On July 24, 1943, at about 4:30 in the afternoon, a bus of the appellant, Dixie Greyhound Lines, Inc., and a tractor and trailer of the appellant, New Era Transport, Inc., collided at the mentioned intersection. As a result of the collision, the gasoline became ignited, burning the bus and the trailer. The driver of the bus was killed in the accident by burning or otherwise, and the homes of the appellees, their trees, lawns, and shrubbery were damaged to the amount respectively as shown by the stipulation entered of record by the parties.

The New Era truck was an International, tractor type with trailer tank on the back loaded to capacity. The overall weight of the tractor trailer and load was approximately 38,000 pounds or 19 tons. The overall length of the tractor trailer was from 34 to 36 feet. The bus was a large standard type Greyhound.

The paved portion of Mascoutah avenue is 18 feet wide and McClintock street is 24 feet in width. Mas-coutah avenue from the south is intersected by McKinley street at a point 690 feet west of the McClintock Mascoutah avenue intersection. Mas-coutah avenue extends straight east from the McClin-tock Mascoutah avenue intersection, where the collision occurred, for a distance of approximately 50 feet and at that point goes into a 7° 12' curve. It was from this direction that the Greyhound bus approached the intersection. McClintock street is an ascending grade going north from Mascoutah avenue. The high point is approximately 300 feet north of Mascoutah avenue. McClintock street intersects Mascoutah avenue at something greater than a 90 degree angle. The grade of Mascoutah avenue going west from McClintock street is downhill or low grade towards McKinley street, the low point being about 521.6 feet from the center line of McClintock street and 8.8 feet lower than the center of the intersection of McClintock street and Mascoutah avenue. On the northeast corner of the intersection there is a home along which a brick retaining wall runs.

The driver of the New Bra truck drove onto Mas-coutah avenue from McKinley street and then drove in an easterly direction on Mascoutah avenue until he made a left turn onto McClintock street.

The evidence in the case was all offered by the plaintiffs and included testimony of witnesses who saw all or parts of the accident and the facts and circumstances in relation thereto; an experiment conducted for the purpose of ascertaining the distance approaching vehicles could be seen coining east on Mascoutah avenue from McClintock street; a plat showing Mas-coutah avenue and McClintock street, the place of the accident and surrounding area; and photographs of the scene of the accident and surrounding area, and of the scene of the accident immediately following its occurrence.

The driver of the truck testified that he was traveling at a speed of approximately 10 to 12 miles an hour before and at the time of the accident without any change of speed; that before turning left onto McClintock street, he extended his left arm and looked to the east and saw no one approaching within his range of vision; that when he saw the Dixie Greyhound bus for the first time after he started to turn, it was 30 to 40 feet from him and was traveling at a speed of at least 45 miles per hour; that it was on the right hand side of the road; that it did not swerve from the time he saw it until it hit him, and that he could see the entrance to the Walnut Hill Cemetery, which, according to measurements in evidence, was 230 feet away on Mascoutah avenue.

A witness who was sitting by a tree on the south side of Mascoutah avenue, testified that he saw the truck coming up the road; that it passed where he was sitting; that he saw the driver start a left turn and that after he started, he heard a horn and just as he looked around, he saw the bus just about to hit the truck.

A witness who was sitting in his car at the entrance of the Walnut Hill Cemetery testified that he was driving out from the cemetery and when he got to Mascoutah avenue, he brought his automobile to a stop; that he observed a bus pass in front of him and kept it in sight from the time it passed him until the collision happened; that he saw it hit the oil truck. When the bus was passing him, the driver was alone and was smoking a cigarette; that the bus was traveling somewhere around 40 to 45 miles an hour and that it continued to go straight; that he saw the truck and trailer before the impact, crossing the intersection at Mascoutah avenue and McClintock street; that the bus had hardly slackened its speed at all from the time it passed him until the time it hit the truck.

The evidence shows that there was a standard highway “slow” sign erected and standing along the north side of Mascoutah avenue, 284 feet east of the point of the collision. The bus left no skid marks indicating that the driver attempted in any way to stop to avoid the collision. The place of the impact on the truck was about the right door of the cab or the rear of the tractor. The truck driver could have seen the bus more than 240 feet east of the point of the collision; likewise the driver of the bus could have seen the truck for more than this distance.

A violation of a statute prescribing a duty for the protection and safety of persons and property may be negligence, if such violation caused or contributed to cause an injury or damage. Apart from any other questions of alleged negligence, from a consideration of all of the evidence in the record, we are satisfied that the trial court was warranted in concluding that the accident was proximately caused by the concurring negligence of the appellant, Dixie Greyhound Lines, Inc., by its operator driving at an unreasonable' and excessive rate of speed in violation of par. 146, ch. 95½, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 85.178], and that the appellant, New Bra Transport, Inc., was guilty of negligence by the driver of its tractor trailer making a left turn without caution and without due regard for traffic approaching from the opposite direction, in violation of par. 166, ch. 95½ of said statutes [Jones Ill. Stats. Ann. 85.198], which concurring negligence proximately occasioned the accident and resultant damages to the appellees.

The driver of the Dixie Greyhound bus either did not see the New Bra trailer truck, which he should have done, or seeing it failed to heed. The driver of the trailer truck failed to look and see the approaching bus, or looking, failed to see it when he should have, or seeing it, heedlessly turned in its path. Such acts under the circumstances shown in the record here constitute negligence.

Counsel respectively for the appellants pick out certain portions of the testimony in the record and say that this evidence shows that their respective clients are not guilty of negligence, but that the other is. Attention of the court is directed to such cases as Sawyer v. Moyer, 109 Ill. 461, 465; American Hoist & Derrick Co. v. Hall, 208 Ill. 597, 600, 601; Luthy & Co. v. Paradis, 299 Ill. 380, 383, 384 and Chance v. Kinsella, 310 Ill. 515, 523.

Assuming, without deciding, that the particular portions of the testimony of certain witnesses directed to the court’s attention, would warrant the conclusions stated by the respective appellants, the fallacy of the position lies, in that, in weighing the evidence in a case, it was the duty of the trial court, and is the duty of this court, to consider all of the testimony of all of the witnesses, including that elicited on direct examination and cross-examination, and all the facts and circumstances in the case, and give to all, the weight and effect under the law of evidence to which they are entitled. This is true regardless of by which side the witnesses were called or by whom the evidence was offered. (Auschwitz v. Wabash Ry. Co., 346 Ill. 190, 208; Jasper v. Griffin Wheel Co., 194 Ill. App. 517, 520; Highley v. American Exchange Nat. Bank, 185 Ill. 565, 570 and Chicago City Ry. Co. v. Gregory, 221 Ill. 591, 597, 598.) There is nothing to the contrary in such cases as Sawyer v. Moyer, 109 Ill. 461. In that case, defendants were called as witnesses by the complainants, and in discussing the weight to be given to their testimony, the court, on page 465, said:

“Should the testimony of these witnesses be considered, that which makes for them must be considered as well as that which is against them.”

To a like effect are the other eases on this question called to our attention by one or both of the appellants.

We find no reversible error in the record, and the trial court was warranted in his conclusions that each of the appellants was guilty of negligence which proximately contributed to the cause of the accident in question and the resultant damages to the appellees. The judgments of the circuit court of St. Clair county are affirmed.

Affirmed.

Stone, P. J., and Culbertson, J., concur.


author: Mr. Justice Culbertson

text:
    Reuben R. Ruth, Plaintiff in Error, v. People of State of Illinois, Defendant in Error.
    Term No. 46F3.

      Opinion filed May 6, 1946.
    Rehearing denied October 4, 1946. Released for publication October 5, 1946.
    L. B. Fish, of Lawrenceville, and Cotton & Massey, of Paris, for plaintiff in error; Robert F. Cotton, of Paris, of counsel.
    Maurice E. Gosnell, State’s Attorney, of Lawrenceville, for defendant in error.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is a writ of error seeking reversal of a judgment of the county court of Lawrence county, assessing a fine of $1,000 and costs, against appellant, Eeuben B. Buth (hereinafter called defendant).

The action arose out of an information filed by the state’s attorney of Lawrence county, charging the defendant with violation of the Dram Shop' Act through a sale of alcholic liquor to certain minors, each of the minors being named in separate counts of the information. The case was tried by a jury and the jury found defendant guilty on both counts of the information. In the verdicts the jury fixed the fine of the defendant at $500 on each count. Appropriate motions for directed verdict and for new trial were made by defendant, and a motion in arrest of judgment was filed, questioning the sufficiency of the information on the ground that since the information was predicated upon par. 131, ch. 43, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 68.038], it was defective for the reason that it charged that the defendant, Reuben R. Ruth, on a certain day, being a licensee under the terms of the Act “did sell and deliver alcoholic liquor” to the named minors. It was the contention of the defendant that the information was insufficient and fatally defective for the reason that it omitted a recital that the sale was with the ‘' authorization, knowledge or approval” of the licensee.

Paragraph 131 of the Dram Shop Act referred to in the statement of facts provides, “No licensee shall sell, give, or deliver alcoholic liquor to any minors . . . Paragraph 183 of the same Act provides for a fine of not less than $50 nor more than $500 for the first offense. Paragraph 185 of the Dram Shop Act contains the following language, “Every act or omission of whatsoever nature, constituting a violation of any of the provisions of this Act, by any officer, director, manager, or other agent or employee of any licensee, if said act is committed or omission is made with the authorization, knowledge or approval of the licensee, shall be deemed and held to be the act of such employer or licensee, and said employer or licensee shall be punishable in the same manner as if said act or omission had been done or omitted by him personally.” Paragraph 180 of the Dram Shop Act contains the provision that “In all prosecutions under this Article by indictment or otherwise it shall not be necessary ... to show the knowledge of the person to convict for acts of any agent or servant; . . . ”

Many errors are assigned by the defendant and many are argued in the brief filed in this court. We shall give consideration only to those which appear to be material under the facts.

The facts as shown on the trial of this cause indicated that on May 18, 1945 two boys aged 17 and 16, respectively, were in the tavern operated by the defendant, a licensee under the Dram Shop Act, and according to the testimony of the minors, and others who testified, they were served with alcoholic liquors by a waitress who was working part-time for the defendant. The defendant in his testimony denied that the boys were in his tavern. In this denial he was supported by the testimony of the waitress, his bartender, and three persons who were in the tavern at the time the boys presumably were sold the alcoholic liquors. On the evidence as presented the jury returned a verdict of guilty on both counts of the information.

There was, apparently, no effort made by defendant to raise the issue that he had no knowledge of the sale and did not authorize or approve it, until these defenses were raised by motion for new trial and in arrest of judgment. While the information charged that the licensee sold and delivered the liquor to the minors, it appears to have been sufficient in charging the violation in the language of the statute. It is only necessary that a charge of this character be made so plainly that defendant may know how to make his defense and the jury may readily understand the nature of the accusation (Mapes v. People, 69 Ill. 523; Supernant v. People, 100 Ill. App. 121).

No instructions sought or other acts prior to the time of the verdict of the jury indicated that defendant attempted to avail himself of the defense that the acts were committed without his authorization, knowledge or approval (People v. Schmidt, 292 Ill. 127).

Objections were, likewise, made, by defendant to certain instructions and a refusal to give a certain instruction. Although these instructions are not set out in detail in the brief of defendant, we have examined the matters which were raised and do not believe that there is any reversible error in the action of the court with reference to the instructions. The instructions contained some inaccuracies, but we do not believe that the result would have been any different if a certain instruction had been modified since it dealt with the question of circumstantial evidence. The evidence tended rather clearly to establish that there was direct proof of the sale of intoxicating liquor to the minors, which apparently was believed by the jury. On review of a record of this character the question is not whether the record is perfect, but whether defendant has had a fair trial under the law, and whether his conviction is based upon evidence establishing his guilt beyond a reasonable doubt (People v. Touhy, 361 Ill. 332). Under the facts it appears that the defendant has had a fair trial, and that the evidence tended to establish his guilt as required by law.

The trial court in entering judgment upon the verdicts of $500 as to each offense, charged in each count of the information, entered judgment as follows: “Judgment on the verdict, the judgment being guilty on each count of the Information. Fine of $1,000.00 assessed, and judgment against defendant for $1,000.00 and costs.” The information charged two separate offenses and two separate verdicts were returned by the jury. It was proper that separate-judgments be entered as against defendant in each case. Separate judgments should have been entered upon each of the verdicts. This cause will, therefore, be reversed and remanded for the sole purpose of an entry of separate judgments on each of the verdicts as herein specified.

Reversed and remanded with, directions.

Store, P. J., and Bartley, J., concur.


author: Mr. Justice Bristow

text:
    Chicago Title and Trust Company, Plaintiff, v. Arthur W. Guild, Appellee, and Thomas C. Hull and George L. Allmart, Appellants.
    Gen. No. 10,050.
    Opinion filed June 14, 1946.
    Rehearing denied October 3, 1946. Released for publication October 3, 1946.
    Rathje & Woodward, of Wheaton, for appellants; John S. Woodward, of Wheaton, of counsel.
    Hadley & Leren, of Wheaton, for appellee; Charles W. Hadley, of Wheaton, of counsel.
   Mr. Justice Bristow

delivered the opinion of the Court.

The Chicago Title and Trust Company, plaintiff in this proceeding, is seeking to pay a real estate commission to the proper person for having procured a purchaser for certain real estate known as the Kauff-man Building, situated at 100 North Hale street in the city of Wheaton, Illinois. This property was held by the plaintiff as trustee under Trust No. 31212. There are two brokers claiming the commission, namely, Arthur W. Guild, present appellee, and the partnership of Thomas C. Hull and. George L. Allmart, appellants. We will refer to these contestants as Guild and Hull.

The plaintiff’s complaint having been filed in the circuit court of DuPage county was in the nature of an interpleader, and sought to . have these two gentlemen litigate the question as to who was entitled to the commission which was in the sum of $1,298.65. This sum was deposited with the circuit clerk of that county to be paid to the successful contestant. The sufficiency of this complaint was questioned, and, on appeal to this court, we determined in the case of Chicago Title & Trust Co. v. Guild, 323 Ill. App. 608, that the suit would lie, and pursuant thereto a trial was had without a jury, wherein it was determined that Guild was the procuring cause of said sale, and thus entitled to the commission. This appeal followed.

The important question for this court to determine is whether the finding of the trial judge was palpably erroneous or clearly against the manifest weight of the-evidence. We will detail rather fully the evidence as adduced on the trial. Guild had been a real estate broker for a period of 15 years, doing business principally in the city of Wheaton. It so happened that he managed the property involved in this litigation. The trust company indicated to Guild that the owners of this property would consider an offer to purchase, and asked him to try to find a purchaser. They declined, however, to give Guild an exclusive right to sell the same, but invited him to bring in an offer which would be duly considered. It was in March 1940, that Guild was appointed manager of the building. In 1942, a Mr. Walker of the trust company came out to inspect the Kauffman Building, and some major repairs that had been made on it, and on this occasion told Guild that they had received an offer of $20,000 which had been declined, but that he thought if an offer could be made of two or three thousand more, it would be acceptable. Guild endeavored to interest many people in and about Wheaton in this property.

In December 1942, Guild contacted Dr. John M. Davis, the ultimate purchaser, and sought to advise him of the availability of this property. Previously, Dr. Davis had told Guild that he wanted him to be on the lookout for some business property investments. So Guild left word with Dr. Albright, an assistant of Dr. Davis, for the latter to see him, which he did shortly thereafter. In this interview Guild told Davis of his conversation with Walker. Pie also told him that in his opinion $23,000 would buy the property, and that also in his opinion, such sum was less than the ground value; that a new heating plant had been installed; that the taxes were about $600 per year; and that the fuel costs were about $500 per year. He also told him what the income was; and that it did not require a full time janitor, the janitor hire for the previous year being $180. He further related what repairs had been made, and what the light bills were. Guild showed Davis a floor plan that he had prepared for the second floor which involved a certain change that would enhance the rental income. It was brought out in this discussion that in view of the total revenue and cost of operation, Davis would enjoy a return of 12 per cent on his investment if he could purchase the property at $23,000. He asked Davis to let him submit an offer for that amount, but Davis said that he wanted to think it over. Later Guild learned that Davis had sold his home on Geneva Road sometime in January 1943, and thinking that he might then be in a better position to buy, went to see him in regard to selling him this property. On this occasion, Guild again went into detail outlining the various advantages of this investment. And Davis again de-dined to let Guild submit an offer.

In the month of February 1943, Guild was in the office of the trust company where he met a Mr. Corbin who told him that he thought it would take $25,000 to buy the property in question. Guild afterwards reported this conversation to Davis, and stated that he was quite sure that the property could not be purchased for $23,000, but that he would submit an offer for that if he would authorize him to do so.

On April 8, 1943, Guild received a letter from the trust company stating that they had received ah acceptable offer for the purchase of the Kauffman Building. Thereafter, Guild went to their office and inquired of Corbin who the purchaser might be with the thought that he might arrange to continue on as the manager of the property. Mr. Corbin did not give him this information, but told him that the property was being sold through Hull’s office. Shortly thereafter, Davis came to Guild’s office, and at that time Guild told the doctor that the Kauffman property had been sold, and that he thought he had passed up a good deal. Davis then acting very nervously and sheepishly said he was the purchaser. This was Guild’s first knowledge of such a fact.

Subsequently, Guild wrote the trust company asserting his claim to the commission, and Loy, the sales manager of the company, said he would withhold payment of the commission until the differences between Guild and Hull were ironed out. It might be observed here that the foregoing factual situation as outlined by Guild is practically undisputed.

Likewise, the testimony of Hull is essentially undisputed, and it runs as follows: Hull was a licensed real estate broker. On January 25, 1943, Dr. Davis called him at his home and asked him to come to his office, which he did. While there, Hull learned that Davis was interested in various parcels of real estate. Davis told Hull that he would pay him for his services. They there discussed the wisdom of buying the Glen Ellyn State Bank Building, and they also considered the Kauffman property. Davis told Hull that he was interested in it, and that the owners would sell. Hull furthermore testified that when he talked to Davis, he inquired if he had discussed the property in question with any other real estate firm, and was told that he had talked with Guild five months previously, and was last told by Guild that the property was not on the market or was not available. Hull was told later by Mr. McKendry of the trust company that the trust committee was willing to accept an offer of $25,000. On the 26th of February 1943, Hull, for the first time, obtained from the trust company a listing of the Kauffman property. Hull and Davis had many meetings and discussions about the purchase of the Glen Ellyn property and the property in question, but the doctor seemed to be unable to make up his mind. On March 26,1943, Hull told Davis that he had better hurry up and get his offer in for he knew of another offer of $25,000. He was then told by Davis that he was no longer interested in the deal. It then transpired that Dr. Davis proceeded to ignore Hull and almost immediately went all the way into Chicago by himself to the office of the trust company and executed a signed offer for $26,000. Hull upon hearing this fact called Davis and challenged his Machiavellian tactics, and thus got himself back into the picture. The sale was finally consummated at the figure of $26,225, and Hull signed the following guarantee : “The undersigned, a licensed real estate broker, represents that he is the only broker interested in the foregoing offer and agrees to indemnify and save the seller harmless from claims of any other broker in connection with said offer.”

Davis was called as a court’s witness, and was cross-examined by counsel for Guild and Hull. We deem it unnecessary to detail his testimony, but dispose of the same by saying that he was a most unsatisfactory witness. He had such a poor memory. It required much effort to extract the truth from him, but when it was finally obtained, it corresponded fairly well with what Guild and Hull had to say. We do not believe the doctor when he says that Guild told him that the property was no longer available, and we think Hull is relating the truth when he says that Davis told him that no other real estate firm was involved in this transaction. We are of the opinion that when Guild had completed his dealings with Davis, the doctor was definitely interested in the purchase of the property. There was no good reason for him to desert Guild and seek aid from Hull. Guild had managed the property and was very fámiliar with it. It is evident to us that Guild was the one who produced in the mind of Davis the desire and intention to buy this property. We do not believe he ever abandoned this desire. He says he was not interested, but his conduct belies this. Likewise, on March 26, he said he wasn’t interested, but that was not true either.

Dr. Davis was shown other properties by Hull, and was told by Hull that the property in question was or might be unsound, and that there might be some difficulty in financing the deal as the trust company was demanding all cash. Counsel for Guild argue with some plausibility that the conduct of Hull appeared to be more in the capacity of a representative of Dr. Davis than a broker who expected a commission from the seller. Davis, in buying the property through Hull, places Guild in no different position than if Davis had gone directly to the trust company and closed the deal by himself.

The record indicates nothing of importance that Hull did to convince Davis that he should buy the Kauffman Building. Guild had covered the ground thoroughly. There was nothing left for Guild to do except to submit an offer to the trust company. This certainly would have happened had it not been for the vulpine maneuvers of Davis. A situation quite analogous to the one under consideration appears in the case of Francisco v. Coleman, 230 Ill. App. 465, which is discussed in both briefs. There Francisco, a real estate broker, had found Lee, the ultimate purchaser, but for some unexplained reason Lee started negotiations with another real estate broker who closed the deal. Francisco brought suit for his commission, and the court in sustaining his right to prevail used this language which we consider quite pertinent: ‘ ‘ There is no dispute about Lee having been first produced by the plaintiff and it cannot be seriously doubted that Lee never waivered in his intention to buy the land from the time he looked at it on December 9. It was not necessary for the trial judge to determine just what prompted Lee to endeavor to close the deal through someone else than the plaintiff. It is apparent that he had some purpose which seemed to be sufficient to him. His breaking off of. negotiations with the plaintiff and taking them up with another brokerage firm was not the result of any decision on his part not to buy the land. The circumstances surrounding the transaction were such that the defendant Coleman ought to have known that his agent Francisco was not being fairly treated. Almost from the first he suspected that Stewart & Stockwell’s customer was Lee. He was repeatedly admonished by the plaintiff that if the customer turned out to be Lee, he would be asked to pay plaintiff the commissions agreed upon. Coleman saw fit to let the matter drift and closed the deal through his new brokers without making any effort to protect his original agent, who was unquestionably the procuring cause of the sale. Under such circumstances the defendant cannot avoid the payment of the commissions agreed upon. (Rigdon v. More, 226 Ill. 382; Ogren v. Sundell, 220 Ill. App. 584; Hafner v. Herron, 165 Ill. 242.)”

There are many cases cited in Guild’s brief which have to do with the familiar situation where a broker interests another person in the purchase of his principal’s property, and that person closes the deal with the owner secretly and independently of the agent. Our courts consistently hold that the agent can recover his commission. The only difference between those cases and the instant one is that Dr. Davis does not go directly to the trust company to close the deal, but enlists the assistance of a representative who knew nothing of the fact that the property in question was for sale, and of course had no listing of it by the owner. The fact that Guild did not go with Davis to the trust company, in itself, does not bar his recovering a commission.

In Wright v. McClintock, 136 Ill. App. 438, the appellee McClintock was a real estate broker at Hinsdale, Illinois, and one Mrs. Bush listed her property with him for sale. The appellant Wright was a lawyer and also dealt in real estate with offices in Chicago. Mc-Clintock showed Wright the property belonging to Mrs. Bush but no sale resulted. Wright then went direct to Mrs. Bush. McClintock then sued Wright for his, commission, for during the course of negotiations Wright had written McClintock that he would protect him in his fees and this court said, page 441: “Where an agent employed to sell property induces a party to go to his principal and a sale is effected to such party through his efforts or information derived from him, the agent is entitled to a commission, although he does not personally introduce the purchaser to his principal. Where an agent is employed to sell real estate for the owner or undertakes the employment and is instrumental in bringing the owner and the buyer together, and the owner then concludes the sale at a less price than the agent was authorized to sell, the agent is entitled to compensation for his services. Wilson v. Mason, 158 Ill. 304; Hafner v. Herron, 165 Ill. 242; Henry v. Stewart, 185 Ill. 448; Higdon v. More, 226 Ill. 382.” Hull seems to be the innocent victim of the subtle cunning of Davis and consequently should be paid by Davis.

Many cases are cited in briefs of appellant and appellee on the question of whether the instant proceeding is one of law or une of chancery. Since the force and effect of the finding of the trial court in law and chancery cases where the court hears evidence without a jury is substantially the same, it makes very little difference whether we consider this case one in chancery or law. We believe the evidence clearly shows that Guild is entitled to the commission. Consequently, we affirm the trial court’s conclusion.

Judgment affirmed.