text:
    Mary Flannery et al., Appellants, v. James P. Flannery, Appellee.

      Opinion filed October 30, 1943.
    Johnson & Johnson, of Belleville, for appellants.
    Jos. B. McGlynn, of East St. Louis, for appellee; W. E. Corrigan, of Chicago, of counsel.
   Mr. Justice Stone

delivered the opinion of the court.

Mary Flannery, Abbott Flannery, Vincent Flannery, Viola A. Flannery, administratrix of the estate of Charles Flannery, deceased, and Jerome Flannery, appellants who will hereinafter he designated as plaintiffs filed suit in equity against James P. Flannery, appellee, who will be hereinafter designated as defendant, for a determination of the interest of the parties in the copartnership of P. Flannery and Son, and for a determination of the interest of the parties in P. Flannery and Sons, Inc., an Illinois corporation and for dissolution of the partnership. It was among the parties agreed that this cause should proceed to a final adjudication as to the respective rights and interests of the parties in and to the partnership and the corporate capital and profits and that thereafter an accounting should be had and taken by the court. The question of the accounting is, therefore, not involved in this appeal.

The suit was originally instituted by Mary Flannery, and was directed against the rest of the parties litigant herein. Later, after notice to defendant James P. Flannery, by their petition, Vincent Flannery, Charles Flannery, Jerome Flannery and Abbott Flannery, asked to join as parties plaintiff, praying tbe same relief as the original plaintiff, Mary Flannery. During tbe pendency of tbe suit, Charles Flannery died, and Viola A. Flannery, bis widow, as administratrix of bis estate was substituted in bis stead.

The record discloses that tbe partnership was engaged in tbe handling and selling of building materials in tbe City of East St. Louis, Illinois. It bad its rather nebulous beginnings, according to plaintiffs’ theory, when it was founded by Patrick Flannery, father of tbe parties litigant, who continued to own tbe business up to tbe time of bis death in 1931; they claim that for 30 years prior to bis death, be permitted tbe business to be conducted under tbe name of “P. Flannery and Son” as a trade name without reference to any particular son, and upon bis death, tbe business became tbe property of bis wife, tbe mother of plaintiffs and defendant, by tbe terms of a will, which bequeathed all of bis personal property to tbe widow, but which will was never filed for probate; that upon tbe death of said mother, intestate, a one-sixth interest in tbe business vested in plaintiffs and defendant. This theory of ownership in tbe father and mother seems to be predicated upon some rather vague conversations between them, both of whom are now deceased, and testified to by various plaintiffs.

Defendant claims that bis father loaned him $1,200, in 1899 with which be purchased tbe remnants of tbe Contractor’s Material Company, that be, defendant, was a minor at tbe time, and tbe name of Patrick Flannery and Son was used to obtain credit, and that this loan was repaid to bis father, who tbe evidence seems to indicate, was not active in the business, since 1918.

In tbe latter part of 1917 or early in 1918 a copartnership was created by defendant, James P. Flannery and bis brother, William J. Flannery, under tbe firm name and style of “P. Flannery and Son,” each, owning an equal one-half interest therein. This partnership continued until the death of William J. Flannery on September 7, 1922, at which time by operation of law, it was dissolved.

Regardless of the activities of P. Flannery in the organization of the business and the interest he may have had therein, by written agreement dated April 1, 1918, and by deed of conveyance dated April 19, 1918, he transferred all or any interest he may have had to J ames P. Flannery and William J. Flannery.

Upon the death of William J. Flannery, P. Flannery purchased for the nest of kin of William J. Flannery, from Hazel Moody Flannery, the widow of William J. Flannery, in consideration of the sum of $10,000 the interest of William J. Flannery, as evidenced by an agreement dated October 7, 1922, and by quitclaim deed dated October 7, 1922, she conveyed certain real estate to Patrick Flannery, and Mary Flannery, his wife, James P. Flannery, Abbott Flannery, Vincent Flannery, Mary Flannery, Jerome Flannery and Charles Flannery.

Thereafter, on the 25th day of April, 1929, Patrick Flannery and Mary Flannery, his wife, conveyed by warranty deed, “all of the right, title and interest of the grantors,” in the real estate described in defendant’s eshibits 6 and 14, to James P. Flannery, Abbott Flannery, Vincent Flannery, Mary Flannery, Charles Flannery and Jerome Flannery. It is conceded that all interest in both the real estate and personal property received from Hazel Moody Flannery passed to, and became therein property in equal shares of James P. Flannery, Abbott Flannery, Vincent Flannery, Mary Flannery, Charles Flannery and Jerome Flannery.

Thereupon, as admitted by the pleading herein, a new partnership was created, composed of James P. Flannery, Mary Flannery, Jerome Flannery, Abbott Flannery and Charles Flannery, and until the time of incorporation continued to operate as a copartnership under the firm name of P. Flannery and Son.

At the time of the death of William J. Flannery, on September 7, 1922, the copartnership assets, consisting of real and personal property, were owned equally, share and share alike, by James P. Flannery and William J. Flannery, and the record discloses no act on the part of James P. Flannery divesting himself of his undivided one-half interest as copartner of William J. Flannery. Therefore, upon the dissolution of the copartnership of James P. Flannery and William J. Flannery, he was entitled to an accounting for one-half interest therein. The heirs and next of kin, by virtue of the agreement and conveyance of Hazel Moody Flannery, could acquire no greater interest than that possessed by William J. Flannery, and it therefore follows that Patrick Flannery and Mary Flannery, his wife, could acquire no greater interest than that possessed by William J. Flannery, and that Patrick Flannery and Mary Flannery, his wife, could convey no more than the one-eighth interest which each held, and vesting each of the five plaintiffs and defendant with a one-sixth interest in and to the interest owned by William J. Flannery, now deceased. Thus, "the interest contributed by each plaintiff to the copartnership is one twelfth and by the defendant seven twelfths and it must necessarily follow that the defendant, James P. Flannery is the owner of seven twelfths of the copartnership assets and the plaintiffs, Abbott Flannery, (Vincent Flannery, Mary Flannery, Jerome Flannery, and Viola A. Flannery, as administratrix of the estate of Charles Flannery, are each the owners of one twelfth of the copartnership assets.

On February 6, 1930, the material business, which had previously been conducted as a partnership, was incorporated as an Illinois corporation, under the name of “P. Flannery and Sons, Inc.,” 350 shares being issued to defendant, James P. Flannery and 50 shares each to the plaintiffs, the stock having been issued in the same proportions as the interest of the respective parties in the copartnership. Each shareholder, with the exception of plaintiff, Mary Flannery, upon being notified, signed for and received his stock, and Mary Flannery upon being notified, stated that at some future time she would call for her stock, and on several occasions signed the corporation minute book.

It appears from the record that the partnership assets including the profits derived from the operation of said partnership have at all times belonged to the parties in the proportion of seven twelfths to the defendant, James P. Flannery, and one twelfth to each of the plaintiffs, and that defendant owned 350 shares of the corporate stock of said corporation, and that the plaintiffs each owned 50 shares of the corporate stock, and that the dividends and profits arising from the operation of said corporation belonged to the parties in the proportion of their respective corporate stock holdings namely, seven twelfths to defendant, James P. Flannery and one twelfth to each of the plaintiffs.

As to the facts hereinbefore set forth and the conclusions to be drawn therefrom there would seem to be but little dispute. However, there is a sharp difference as to the proportion in which the parties were to share the profits of the partnership and the corporation. In that regard, the record shows that the plaintiffs in numerous years filed their individual income tax returns wherein were set forth the amount of money received by them, and each of them from the partnership profits and the corporate profits, the said income representing one twelfth of the said corporate and partnership profits, and the plaintiffs were on various occasions examined with reference to their individual returns, which returns showed that they had received one twelfth of the partnership and corporate profits.

Upon a hearing before the special master in chancery, the master found that defendant was the owner of and entitled to seven twelfths of the original assets of the partnership, and that plaintiffs were the owners of a one twelfth interest each, and that defendant was entitled to share in the corporate capital, dividends and profits to the extent of seven twelfths, and plaintiffs, one twelfth each. In his report, the master held that under sec. 18, Uniform Partnership Act, ch. 106½, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 97.18], which provides as follows:

“The rights and duties of the partners in relation to the partnership shall be determined, subject to any agreement between them by the following rules, (a) Each partner shall be repaid his contribution whe'ther by way of capital or advances to the partnership property and share equally in the profits and surplus remaining after all liabilities, -including those to partners, are satisfied, and must contribute toward the losses, whether of capital or otherwise, sustained by the partnership according to his share in the profits,” the evidence in the master’s opinion showing no agreement as to the manner or proportion of division of profits and surplus, that plaintiffs and defendant were entitled to a one sixth share in the profits of the partnership.

The decree of the circuit court followed the findings of the master except as to the finding of the master that the plaintiffs and defendant were each entitled to one sixth of the profits of the copartnership. The court found that there was an implied agreement, among all of the parties that the plaintiffs were to receive and did receive one twelfth of the copartnership profits from the date of the death of William J. Flannery and that James P. Flannery was to receive and did receive seven twelfths of the copartnership profits from the date of the death of said William J. Flannery. The ultimate finding of the court was to the effect that plaintiffs were the owners of and each entitled to one twelfth of the original assets, and the profits and surplus of the copartnership composed of the.original parties to this suit, and to one twelfth of the shares, dividends and profits of the corporation, and that defendant is the owner of and entitled to seven twelfths of the original assets and profits and surplus of the copartnership composed of the original parties to this suit and to seven twelfths of the shares, dividends and profits of the corporation. From this decree, plaintiffs prosecute their appeal to this court.

While the record in this case is exceedingly voluminous, there seems to he but one real controverted question involved, and that is the proportion in which the parties are entitled to share in the profits of the co-partnership and the corporation. It is the contention of plaintiffs that the court erred in finding and hold-* ing that there was an implied agreement between the parties that plaintiffs were entitled to one twelfth each and defendant seven twelfths thereof.

It is their contention further, that there was no agreement, express or'implied with reference to the division of the profits and that, therefore section 18, Uniform Partnership Act is applicable thereto, and thereunder plaintiffs and defendant were entitled to one sixth each of the profits of the business.

It is argued on behalf of plaintiffs that partners occupy a fiduciary relationship toward each other and that it appeared from the evidence that all the plaintiffs trusted defendant James P. Flannery and his management of the partnership records, including the income returns made for the partnership. It is quite evident from this record that defendant, James P. Flannery was predominant in the control, management and successful operation of the business. Mary Flannery taught school, and never participated in the partnership activities; at the time of the hearing before the master, Charles Flannery had taken no part in the business for nearly a year, Jerome Flannery had taken no part in the business for a lesser period of time; Abbott Flannery had not worked at the business for two to four months previously, Vincent H. Flannery had been coming to the place of business, but there is a question as to whether he was actually doing any work. However, all continued to draw their weekly salaries, which they had received when working for the business. The record discloses no fraud or abuse of the fiduciary relationship on the part of defendant.

Partnership and corporate books and records seem at all times to have been open to inspection by each and all of the partners. It further appears that any and all of the partners could at any time and did frequently make withdrawals from the accumulated profits, such withdrawals being charged to their particular account.

After the death of William J. Flannery in 1922, every year thereafter copartnership returns on income tax were made to the Federal government reporting seven-twelfths profit to defendant and one twelfth to each of the plaintiffs. These returns were prepared by the bookkeeper, Arch Guignon and were signed by James P. Flannery as reporting partner. Each and every year from and including the year 1922 up to and including the taking of the testimony in this case, each of plaintiffs made an individual income tax return, reporting that they had received one twelfth of the profits from the copartnership in each particular year. All this time, James P. Flannery made his individual return, reporting that he had received seven twelfths of the profits. The individual returns for the other partners were prepared by Guignon and presented to and signed by the other parties.

During various years, and at various times, United States Treasury Department investigators from the Income Tax Department checked the partnership return and the individual returns of the plaintiffs and defendant. There is in evidence communications from the Income Tax Division of the United States Gfovernment addressed to each of the plaintiffs. The income tax from a number of various years between 1922 and 1937 stated that the particular individual had been examined with reference to his income tax return for that year, the correction, which would be an increase or decrease in amount of income returned and amount of tax paid, and these communications were addressed to the individual plaintiffs at their home address.

While some of the Federal agents who made these examinations were dead, one Zeisler, was produced by defendant, under subpoena^ who testified that he knew all plaintiffs except Mary Flannery, and when asked with reference to his examinations of plaintiffs concerning income tax returns, and as to whether or not they had stated to him that their income from the business was one twelfth, stated that under a federal regulation he could not discuss such, information or conversation without the taxpayer’s consent. Plaintiffs and their counsel were then called upon by counsel for defendant to give such consent, but this was refused. Failure to produce such available evidence gave- rise to the presumption that such evidence if produced would be against the party refusing to produce it. Mantonya v. Reilly, 184 Ill. 183; Kaplan v. Stein, 329 Ill. 253; People v. Small, 319 Ill. 437; Mitchell v. Louisville & N. R. Co., 375 Ill. 545.

Claim is made on behalf of the plaintiffs that these individual income tax returns were always prepared by the bookkeeper, and that plaintiffs either signed these returns in blank or as prepared by the bookkeeper without consideration of the contents. Arch Gruignon, the bookkeeper, had been employed by the partnership since 1912, and apparently had the confidence of all parties litigant. He was the employee of the partnership and necessarily the employee of plaintiffs, as well as defendant. The general principle of the law is, that one cannot avoid the effect of an instrument signed by him, on the ground that he signed the same in ignorance of its contents, where this is due to his own carelessness or negligence, 26 C. J. S. 272. A party who signs an instrument relying upon representations as to its contents when he has an opportunity to ascertain the truth by reading and does not avail himself of the opportunity, cannot be heard to say that he was deceived by misrepresentations, Rugen v. Van Berschot, 274 Ill. App. 359.

There can be no question but what plaintiffs knew that defendant claimed to own seven twelfths of the business. Plaintiff Vincent Flannery testified that four or five years before the hearing defendant had stated to him that he owned seven twelfths. Mary Flannery testified that defendant had told the boys (other plaintiffs) that he owned seven twelfths.

Partnership agreements, as to the division of profits, may be express or implied from the acts, transactions and previous conduct of the copartners in respect thereto, McCall v. Moss, 112 Ill. 493; Gregg v. Hord, 129 Ill. 613. In the McCall case, the court said, at page 503, ‘ ‘ The members of the firm had the right if they saw proper, to waive any provisions in the original contract of co-partnership or change the contract or modify it in any manner they might think proper. A change in the written articles may sometimes be inferred from a long course of dealings between the members of the firm, inconsistent with the written articles.”

In Gage v. Parmelee, 87 Ill. 329, it was held that a partner having immediate and active charge of the business of the firm, and devoting his whole time and attention thereto, and authorized at the beginning of the business to charge $1,000 per year for his services, would be allowed compensation at a larger amount for subsequent years, where it appears that the business increased in proportion; that the increased salary was entered on the books and that the copartners had knowledge of the fact and did not make objection to the increase, the court saying, at page 336, “We cannot but conclude, from the evidence, that the increase of salary was made, and that it was with the knowledge and assent of appellant. ’ ’

In the instant case, the conduct of the partners over a period of 18 years and even after they admitted they were advised as to defendant’s claims in making their return several years without protest on the basis of having received one twelfth of the partnership profits, was such, that we believe that the court was fully justified in finding that there was established an implied agreement with reference to the division of the profits, both as to the copartnership and the corporation.

The maxim that equity aids the vigilant, not those who slumber on their rights, expresses the attitude of equity toward laches and stale demands. One, believing he has a right, and seeing another infringing upon such alleged right, has the duty to assert such right and upon failure to do so, he will be estopped. Bondy v. Samuels, 333 Ill. 535; Stresenreuter Bros. v. Bowes, 233 Ill. App. 143; O’Connell v. Heed, 219 Ill. App. 598. Estoppel may arise from silence as well as words. It may arise where there is a duty to speak and the party on whom the duty rests has an opportunity to speak and knowing the circumstances, keeps silent. Milligan v. Miller, 253 Ill. 511; Oliver v. Ross, 289 Ill. 624; Bondy v. Samuels, supra.

For a long period of years, plaintiffs permitted their employee, Guignon, the bookkeeper, to prepare a return showing that they were each entitled to one twelfth of the profits. For many years the books of the business carried the entries showing the division of profits at one twelfth each to plaintiffs and seven twelfths to defendant, had they cared to examine them, but apparently they did not care to do so. They knew of defendant’s claim as to his proportion of the profits, but remained silent. They should not be heard now to claim that they did not consent to that proportion of division of profits. We believe that the decree of the circuit court of St. Clair county was right, and the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Justice Hebel.

license: Public Domain

text:
    John P. Friedlund, Appellant, v. Howard F. Bishop and Eugene H. Dupee, Individually and as Copartners Trading as Lyman, Adams, Bishop and Dupee, Appellees.
    Gen. No. 42,407.
    opinion filed June 30, 1943;
    rehearing denied December 8, 1943.
    Friedlund, Levin & Friedlund, for appellant;
    Emil N. Levin and D. M. Stalzer, of counsel;
    Jerome J. Sladkey, for certain appellee;
    Oscar S. Seaver, for certain other appellee.
   Opinion by

Justice Hebel.

“Not to be published in full.’’


text:
    Frank A. Paschke, Appellee, v. Anna Paschke, Appellant.
    Gen. No. 42,450.
    Burke, P. J., dissents in part.
    opinion filed June 30, 1943;
    rehearing denied December 3, 1943.
    Edward S. Cody, for appellant;
    David A. Biskind, for appellee.
   Opinion by

Justice Hebel.

“Not to be published in full.”


text:
    Johnson Oil Burner Sales Company, Appellant, v. Herbert H. Nottke, Trading as Century Casket Company, Appellee.
    Gen. No. 42,560.
    Burke, P. J., dissents.

      opinion filed June 30, 1943;
    rehearing denied December 8, 1943.
    G. Donald Whitehouse, for appellant;
    Aaron Taymor, for appellee.
   Opinion by

Justice Hebel.

“Not to be published in full.’’


author: Presidins Justice Friend.

text:
    William Jansen, Appellee, v. Milk Wagon Drivers’ Union, Local 753 et al., Appellants.
    Gen. No. 42,046.
    opinion filed November 4, 1943;
    rehearing denied November 23, 1943.
    David A. Riskind and Abraham W. Brussell, for appellants;
    Russell J. Topper, for appellee.
   Opinion by

Presidins Justice Friend.

Not to be published. in full.


author: Presiding Justice Friend.

text:
    Donald Kouba, Minor, by Robert Kouba, Next Friend, Appellee, v. City of Chicago and Irwin Fink, Appellants.
    Gen. No. 42,549.

      opinion filed November 4, 1943;
    rehearing denied November 23, 1943.
    Barnet Hodes, Corporation Counsel, for appellant;
    J. Herzl Segal, Michael W. Kaveney and Adam E. Patterson, Assistant Corporation Counsel, of counsel;
    Marion J. Hannigan and Louis Z. Grant, for appellee.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    Peter Christian, Appellee, v. Virginia Mae Christian, Appellant.
    Gen. No. 42,658.
    opinion filed November 4, 1943.
    Henry M. Tufo and Michael F. Zlatnik, for appellant;
    Boyle, Morrissey & Wagner, for appellee.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    Trust Company of Chicago, Administrator of Estate of August H. Braatz, Deceased, Appellee, v. Walter J. Cummings and Daniel C. Green, Receivers, et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 42,689.
    opinion filed November 4, 1943;
    rehearing denied November 23, 1943.
    Frank L. Kriete, Charles E. Green and Arthur J. Donovan, for appellants;
    William J. Flaherty, of counsel;
    Charles E. Mallon, for appellee.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    Walter E. McKay et al., Appellees, v. James A. Hannah, etc., et al., Appellant.
    Gen. No. 42,702.

      opinion filed November 4, 1943.
    W. Harold Rutherford, for appellant;
    Richard E. Keogh, of counsel;
    Henslee & Brown and Leo G. Hanna, for certain appellee;
    Charles Boyle, for certain other appellee.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


author: Justice Scanlan.

text:
    Sonia Swirsky, Administratrix of Estate of Meyer S. Swirsky, Deceased, Appellee, v. Milk Wagon Drivers’ Union, Local 753 et al., Appellants.
    Gen. No. 41,368.
    opinion filed November 4, 1943.
    David A. Riskind and Abraham W. Brussell, for appellants;
    Myron E. Wisch, for appellee;
    Benjamin B. Crane and James E. Brown, of counsel.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    Frances Baumgardner, Appellee, v. Paul Boyer, Appellant.
    Gen. No. 42,429.

      opinion filed November 4, 1943.
    Sears, O’Brien & Streit and Charles F. Short, Jr., for appellant;
    Barnabas F. Sears, Charles F. Short, Jr., and Ralph C. Putnam, Jr., of counsel;
    Richard G. Finn and David C. Ruttenberg," for appellee.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    In re Estate of V. W. McCormack, Also Known as Vincent W. McCormick, Deceased. Beth Weber, Appellant, v. Carl Kresl, Executor of Estate of V. W. McCormack, Deceased, Appellee.
    Gen. No. 42,460.
    opinion filed November 4, 1943;
    rehearing denied November 23, 1943.
    Myer H. Gladstone, for appellant;
    Lederer, Livingston, Kahn & Adsit, for appellee;
    Leo H. Arnstein and Leonard Sehram, of counsel.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    Security Discount Corporation, Appellee, v. Grace Jackson, Appellant.
    Gen. No. 42,498.
    opinion filed November 4, 1943.
    Charles J. Russell, for appellant;
    David H. Caplow, for appellee;
    Julius Copeland, of counsel.
   Opinion by

Justice Scanlan.

Not to be published in full.


author: Mr. Justice Scanlan

text:
    Eleanor Sykes, by Felix J. Sykes, Her Father and Next Friend, Appellant, v. City of Berwyn and Joseph Pilat, Defendants. City of Berwyn, Appellee.
    Gen. No. 42,412.

      Opinion filed November 4, 1943.
    Stanley S. Day, of Berwyn, and George J. Haddad, of Chicago, for appellant.
    Wm. J. Kriz' and Otto M. Hamer, both of Chicago, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

Plaintiff filed an action against City of Berwyn, a municipal corporation, and Joseph Pilat. Plaintiff’s amended complaint was later amended on its face by stipulation. Defendant Pilat filed an answer and the suit as to him is at issue and awaiting trial. The amended complaint, as amended on its face, consists of three counts. Count III concerns defendant Pilat only. City of Berwyn filed a verified motion to strike counts I and II of the amended complaint as amended and to dismiss the suit as to it, which motion was sustained, and plaintiff electing to stand on said counts an order was entered that plaintiff take nothing by her action against defendant City of Berwyn, that said defendant go hence without day, and that it recover its costs from plaintiff. Plaintiff appeals from that order.

Counts I and II of the amended complaint as amended on its face allege:

“Eleanor Sykes . . . complains of the defendants, City of Berwyn, a municipal corporation of Illinois in Count I hereof and of City of Berwyn, . . . and Joseph Pilat in Count II hereof, and of Joseph Pilat in Count III hereof, and states:
-‘ ‘ Count I
“1. The defendant, City of Berwyn is, and was during the entire year 1936 and for a long time prior thereto, a municipal corporation organized and existing under and by virtue of tbe laws of tbe State of Illinois. The plaintiff is a female minor under the age of eighteen years.
“2. Tbe said City did, during tbe entire year 1936, and for a long time prior thereto, maintain a police department, lawfully created by said City, consisting of a number of persons duly appointed thereto pursuant to tbe laws of Illinois and tbe ordinances of said City.
“3. During tbe entire year 1936 and for a long time prior thereto, tbe said City pursuant to authority vested in it by law required the members of tbe said police department to perform, and said members did perform, certain duties in addition to the duties of enforcing tbe laws of tbe State of Illinois and tbe Federal government and tbe ordinances of said City, which additional duties were of a proprietary and corporate nature and not of a governmental nature and were for tbe exclusive benefit of said City and its inhabitants. Such additional duties consisted of keeping a lookout for defects in tbe sidewalks, streets, alleys, street lights, sewers and water mains of said City, and reporting tbe same to tbe various authorized officers of tbe said City who were charged with tbe duty of maintaining and repairing said utilities, and also consisted of removing obstructions upon tbe streets, alleys and sidewalks of said City. Said water mains were part of tbe system of furnishing water to tbe inhabitants of said City and maintained by tbe said City in its corporate capacity.
“4. Said City did, on November 13, 1936, and for a long time prior thereto, own and maintain a certain automobile for tbe exclusive use of tbe members of its police department in carrying out all of tbe duties imposed upon them, including tbe duties mentioned in tbe preceding paragraph of this Count.
“5. Joseph Pilat was on November 13, 1936, and for a long time prior thereto, a duly appointed member of said police department and the duly appointed Chief of Police thereof, which office was created pursuant to law.
“6. On November 13, 1936, said automobile was parked in front of or near the premises known as 6728 Windsor Avenue, Berwyn, Illinois, being the premises which were then occupied and used by the said City as the headquarters of its police department. Said automobile was not in active use at the time of the occurrence hereinafter described. The said Joseph Pilat, as the agent, servant or employee of the said city, while engaged upon its corporate business and acting within the scope of his authority as such agent, servant or employee, on said date and while said automobile was so parked and while cleaning out said automobile to prepare it for use by him and other members of said police department in the performance of their general duties as members of said police department, including the additional duties mentioned in paragraph 3 of this Count, so negligently and carelessly removed a block of wood from said automobile that said block of wood came in contact with the plaintiff who was lawfully walking upon and along the public sidewalk near the parking place of said automobile, and while she was in the exercise of due care for her own safety, and she was thereby knocked down to and upon the sidewalk:
“7. By reason of the premises, the plaintiff sustained serious and permanent injuries ....
“Wherefore, plaintiff prays judgment against the defendant, City of Berwyn, a municipal corporation of Illinois, in the sum of $50,000.00 and costs.
“Count II
“1-7. Plaintiff hereby realleges paragraphs 1 to 7, both included, of Count I of this Complaint as Amended as paragraphs 1 to 7, respectively, of this Count.
“8. The said Joseph Pilat is one of the defendants in this cause. . . .” (Italics ours.)

The italicized words in the foregoing amended complaint as amended constitute the amendments that were made on the face of the said complaint by stipulation.

Defendant City of Berwyn’s verified motion to strike counts I and II and to dismiss the cause as to it alleges, inter alia, that said counts are insufficient as a matter of law to state a cause of action for civil damages against it. The motion is a lengthy one and the material contentions raised therein are stated by defendant in its brief, and they are hereafter referred to in this opinion.

Plaintiff contends that the amended complaint as amended states a good cause of action against defendant City of Berwyn under the doctrine of respondeat superior, for the following reasons:

“(1) The police department, of which Pilat was the chief, was charged by the city with the performance of dual functions, governmental and non-governmental.
“(2) The negligence of the defendant’s agent, Pilat, did not occur while he was engaged in the performance of a purely governmental function.
“(3) The negligence did occur in the maintenance of an automobile owned by the city, and used by its police department in the discharge of both governmental and non-governmental functions.”

Defendant City of Berwyn contends that under the allegations of the amended complaint as amended it must be held that Pilat, as chief of police, in cleaning out the police squad car to prepare it for the use of the police department was acting as a member of the police department of the City in a governmental capacity; that the automobile was part of the equipment of the police department and that Pilat, as chief of police, in cleaning it out, was acting in the line of his duty as a policeman; that the principal or dominant duties of the chief of police were police duties, which are purely governmental; that the additional duties alleged in paragraph 3 of the complaint were merely incidental or subsidiary duties to his ordinary police duties and that it would be a new, far-reaching and dangerous doctrine to hold the City liable in the instant case upon the allegations of the complaint.

Plaintiff argues that under the allegations of the amended complaint as amended Pilat, when he patrolled his beat, used the car in dual activities — governmental and non-governmental — and that in cleaning the car he was performing a duty incidental to both activities, and that “by combining its public and private activities, the city forfeits its immunity where the negligence occurs in the maintenance of an instrumentality that is used indiscriminately in the discharge of both functions.” The principal Illinois case cited by plaintiff in support of her position, is City of Chicago v. Selz, Schwab & Co., 202 Ill. 545, where the plaintiff sued the city for damages because water flowed into the basement of its place of business due to a defective fire hydrant which was connected with a water main in the center of the street, which hydrant and water main constituted a part of the water-works system of the city and was under its control. Plaintiff’s manager had notified defendant that (p. 546) “there was a leak at the bottom of the hydrant, and some water was coming from the leak through small crevices in the floor of the basement of the building.” The Supreme Court, in its opinion, states (pp. 550, 551):“. . . we find a proposition of law asked by the defendant, which the court refused to hold, to the effect that the hydrant and connecting pipe being part of the appliances of the fire department, placed there for the main purpose of supplying that department with water for putting out fires, the separation of the connecting pipe from the hydrant, through the negligence -of those having charge of it, would not render the defendent liable. The facts proved were, that this pipe and hydrant were placed there about twenty-seven years ago, and that the system of water-works was constructed for the double purpose of protection against fires and supplying the inhabitants of the city with water, and has been used for both purposes ever since. Even this particular fire hydrant was made a source of income to the city by selling water from it to contractors for street sprinkling under licenses, and they paid the city for the water. It cannot be said, therefore, that either the water system or this hydrant was constructed or used merely for public protection by putting out fires under the exercise of the police power. Both were constructed and employed by the defendant, in part at least, in its private and corporate capacity. A city is not liable, under the doctrine of respondeat superior, for the unlawful or negligent acts of its officials in the exercise of the police power, and if the break had resulted from the negligence of firemen engaged in the line of their duty in extinguishing a fire the defendant would not be liable. (Wilcox v. City of Chicago, 107 Ill. 334; Culver v. City of Streator, 130 id. 238.) The injury to plaintiff did not arise from negligence in the use of the hydrant for the purpose of extinguishing fire. The business of selling loater to inhabitants and street sprinkling contractors is not an exercise of the police power, and the city is not exempt from liability for negligence in maintaining such system. As applied to the facts of this case the proposition did not state the law, and was properly refused.” (Italics ours.) The negligent servants of the city in that case were neither firemen nor policemen. The decision is based upon the theory that the city was liable for the negligence of its servants — not firemen nor policemen — because the business of selling water to inhabitants and street sprinkling contractors was not an exercise of the police power.

In Bell v. Pittsburgh, 297 Pa. 185, cited by plaintiff, it appears that the county and city jointly owned and occupied a building for governmental and business purposes and part of the building was rented to private enterprises for the purpose of lessening the cost of government operation. In each end of the building there were elevators, one-half of which were operated by the county with its labor, the other half by the city under a similar arrangement. The plaintiff was injured by the negligent operation of one of the elevators by the elevator operator and it was held that both the city and county were liable under the facts of the case.

In City of Meridian v. Beeman, 175 Miss. 527, cited by plaintiff, a city policeman, while patrolling his beat in an automobile, negligently ran over the plaintiff. The proof showed' (p. 536): “that by virtue of several ordinances of the city each of its policemen is required to constantly note while on his beat, and to report as occasion requires, the condition of bridges, culverts, sewers, drainpipes, streets, and sidewalks, and also as to the condition of all street lights, and also as to any accidents that may have happened in his beat in regard to gas or water works, and the like,” (italics ours) and the Mississippi court held the city liable upon the authority of Bell v. Pittsburgh, supra. In our judgment, that case, under its facts, is not an authority that supports the decision of the Mississippi court. Two of the judges of the Mississippi court joined in the following dissenting opinion (p. 537):

The law has been so long and so firmly settled that a municipality is not liable for the negligence of its officers, agents, and employees while in the performance of governmental duties, that I think any modification thereof or any declaration which would substantially trench upon the practical operation of the rule should be made by legislative enactment rather than by judicial decision. The duties of a policeman are principally governmental, and such minor duties as were imposed by the ordinances here brought under review in respect to the corporate duties of the policeman were merely incidental or subsidiary. Doubtless such incidental duties are imposed generally upon policemen, throughout this state, as well as in other states. Therefore, as it seems to me, it would be more in accord with the settled principles and philosophy of the law to hold, in such a case as this, when nothing is shown than simply that the policeman was patrolling his beat, that the policeman was engaged in the performance of those duties which are his principal or dominant duties, which are governmental. Otherwise the settled rule in all substantial and practical respects becomes reversed from that so long declared' in the law, and is left as a mere shadow or shell, so far as such officers of the city are concerned.”

In the Mississippi case the policeman was patrolling his beat in an automobile when the accident occurred. In the instant case the police car was parked in front of police headquarters and Pilat was cleaning it in order to prepare it for use by him and other members of the police department. In the majority opinion filed in the Mississippi case appears the following (p. 536): “The court is not confronted with a case where, at the time, the testimony shows that the police officer was definitely in pursuit of a criminal, or was definitely responding to an emergency call in respect to those duties which are distinctly police in their nature; and this opinion and decision is not to be construed as covering such a case.” Here the court plainly implies that had the City of Meridian shown that the police officer at the time of the accident was engaged in duties that were “distinctly police in their nature,” the fact that the policeman was also required by the statutes to perform non-governmental duties while on his beat would not have aided the plaintiff in that case. In the instant case, plaintiff contends that because the City used the squad car in the discharge of governmental and non-governmental functions it thereby forfeited its right of immunity. If this contention is sound, then, if Pilat at the time of the accident were pursuing a felon, the City could not successfully assert that Pilat was then engaged in governmental duties.

Carrington v. City of St. Louis, 89 Mo. 208, also cited by plaintiff, has no application to the instant case.

In Randolph v. City of Chicago, 315 Ill. App. 85, also cited by plaintiff, it was held that it was the duty of a policeman to notify the proper officer of the damaged condition of a sidewalk and that notice to the police officer was notice to the city.

While it is true, as plaintiff asserts, that the rule that a municipality is not liable for the negligence of any of its municipal officers, agents or employees while engaged in a governmental function or duty has been criticized in several decisions of this court, nevertheless, the Supreme Court of this State firmly adheres to the distinction between acts done in a governmental capacity and acts done in a non-governmental capacity.

It has been frequently stated that the question as to whether a city under a given state of facts acts in a governmental or a non-governmental capacity is not always easy to determine and that all that can be done with safety is to determine each case as it arises. It is entirely unnecessary for us to refer to all of the decisions that are cited by plaintiff and defendant that bear upon the subject. A leading and instructive case is Roumbos v. City of Chicago, 332 Ill. 70. There our Supreme Court states the general principles that apply to the subject and cites decisions of that court wherein the municipality was held liable for the negligence of its servants (p. 79) and cases in which the city was held not liable (p. 80). In the Roumbos case the evidence, showed that (p. 72):

“Marie Roumbos, a little girl four years old, was living with her parents on the second floor of a building which stood oil the north side of Hope street, flush with the sidewalk. She was sitting at the edge of the sidewalk, on the lower step of the stairway leading from the second floor to the street. A street sweeper in the employ of the city swept a pile of trash, shown to be about one or two feet high and three feet in circumference, to the curb, about five or six feet from the house, set fire to it and went away. The wind blew the flame across the sidewalk. It caught the child’s dress and she was so badly burned that she died the same day.” (Italics ours.)

The Supreme Court held that as the care of streets and sidewalks is a part of the corporate functions of the municipality voluntarily assumed by the city the latter was liable to the plaintiff.

In the recent case of Taylor v. City of Berwyn, 372 Ill. 124, it appears that two City of Berwyn policemen, in response to a radio broadcast from Chicago to suburban municipalities, were driving a police squad car in pursuit of persons wanted for the murder of a Lombard police officer and in the pursuit they had gone outside of the city limits of said city when they collided with a truck and injured the plaintiff. The Supreme Court held that the police squad car involved in the action was being operated by and under the control of police officers and while the City of Berwyn was in the exercise of a governmental function of the highest character, and also held against the contention of the plaintiff that the operation of an automobile by police officers of one municipality while riding or cruising in another town is not a governmental function. The court states (p. 129): “Manifestly, the operation and maintenance of the police department by a municipal corporation is an exercise of a governmental function so as to relieve it, in the absence of statutory provision to the contrary, from liability for personal injuries resulting from the malfeasance or nonfeasance of the departmental officers or employees.”

Both parties cite Gebhardt v. Village of LaGrange Park, 354 Ill. 234. There it appeared (pp. 235, 236) “that the plaintiff in error village, under authority of an act of the legislature, passed an ordinance establishing a playground and recreation board for the village and appointed three members, to serve without compensation. The ordinance gave to the board powers enumerated by the statute, which were, to maintain and equip playgrounds and recreation centers within or beyond the corporate limits of the village, to employ play-leaders, directors, supervisors, recreation superintendents and other officers and employees as the board might deem proper. By amendment the statute conferred on such board the power to provide swimming pools. (Cahill’s Stat. 1931, chap. 24, pars. 631-34.) For about six weeks prior to July 14, 1927, the date on which defendant in error was injured, the defendant Charles Smith, by direction of the chairman of the recreation board, had been using the village truck, of which he was the driver, to convey children to and from the Belmont swimming pool, located about eight miles from the plaintiff in error village. On July 14, 1927, owing to the inclemency of the weather, the chief of police directed Smith to use his (Smith’s) automobile instead of the village truck to convey the children to and from the swimming pool. On returning that afternoon, while proceeding east on Ogden avenue, a public highway, Smith’s car collided with a truck of Marshall Field & Co. and defendant in error was injured.” The Supreme Court assumed that the village was operating the swimming pool, that Smith was its agent, that it was through Smith’s negligence that the injury to the defendant in error occurred, and that the question before the court was whether the maintenance of the swimming pool was a governmental or a proprietary function. The court held that the question was one which had not theretofore engaged the attention of the court, and reviewed the authorities of sister states that bore upon the question. In its opinion the court states (pp. 237, 238, 239, 240):

“The principle upon which freedom from liability for damages occasioned by the servants of a municipality is based, rests, in turn, on the fact that the duty of the municipality is owed to the public, and though the neglect causing the injury may prove of damage to the individual affected, the benefit of the discharge of such function to the public generally is deemed an outweighing consideration and so justifies immunity to the municipality. (Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332.) If public parks, playgrounds and swimming pools are examples of municipal functions undertaken for the public benefit as distinguished from their maintenance for corporate profit they must be brought within the rule of governmental immunity. One question, considered in some of the cases as of importance, is whether the duty is imposed on the municipality or is permissive, as one voluntarily assumed. That question is recognized by this court in Roumbos v. City of Chicago, supra. It is there also recognized, however, that such question is but one consideration in determining the character of the function discharged by the municipality. Governmental function is to be determined, if it exists, from the nature of the duty to be discharged or the act to be done. If the duty involves a general public benefit not in the nature of a corporate or business undertaking for the corporate benefit and interest of the municipality, the function is governmental whether the duty be directly imposed upon the city or is permissive — that is, one voluntarily assumed. A bathing beach or swimming pool is maintained under powers granted to the city or village and as an instrument for the general public health, recreation and exercise. It is not imposed- on the municipality but is optional with it. That fact alone, however, may not be said to determine whether in maintaining such swimming pool the municipality acts in a governmental or proprietary capacity. The nature and effect of the function discharged must be examined to determine that question. (Bisbing v. Asbury Park, supra.) Such function in nowise partakes of the nature of a corporate business or undertaking for profit but is by its nature a public benefit. The municipal purpose in providing such means of recreation and health differs widely from that found in conducting a business enterprise for private gain.

“Among the aims of government are those to foster and promote health, comfort, recreation and sanitary conditions for the public, and unless specifically limited to certain classes of persons or to citizens of the village itself such benefit extends to the public generally. The officers appointed.by the village under the authority of the statute are officers of that municipality charged with the duty to thus promote the general welfare. To attain such an object is one of the primary purposes of government. Such a swimming pool is open to the public. The fact that a fee is charged for its use does not destroy its character as a public place for recreation and health. (Carstens v. City of Wood River, 344 Ill. 319.) We are of the opinion that not only the weight of authority in this country, but likewise the better reasoning, supports the rule that in the absence of a statute imposing such liability a city or village maintaining a swimming pool is not pecuniarily liable for the negligence of its officers or servants in the discharge of their duties relating to that particular function. Here, by ordinance authorized by the statute referred to, the village of LaGrange Park appointed commissioners to discharge the duties and exercise the powers provided in the act, and when the act was amended so as to empower villages to maintain swimming pools, such additional powers were thereby vested in the board appointed by tbe village. Assuming, therefore, as argued by defendant in error, that all acts necessary to be done were done by the board of commissioners appointed by the village concerning the maintenance of a swimming pool, we are of tbe opinion that in so doing tbe village was engaged in a governmental and not a proprietary function and that tbe general rule as to exemption from liability for negligence applies. This being so, tbe judgment against tbe village cannot stand.” (Italics ours.)

Plaintiff cites, as cases where municipalities have been held liable: Wasilevitsky v. City of Chicago, 280 Ill. App. 531; Bedtke v. City of Chicago, 240 Ill. App. 493; Schmidt v. City of Chicago, 284 Ill. App. 570; Shapiro v. City of Chicago, 308 Ill. App. 613. In the Wasilevitshy case the plaintiff charged negligence of a city employee in operating a garbage trailer. In tbe Bedthe case tbe plaintiff charged negligence by a city employee in tbe operation of a street cleaner. The Schmidt ease is similar to tbe Wasilevitshy case. In tbe Shapiro case tbe plaintiff charged negligence in that an abandoned automobile was left parked in a city alley and plaintiff, a child, was injured, and it was held that the abandoned automobile constituted an attractive nuisance. The plaintiff, a child, was injured when another child threw a match into tbe gas tank of the automobile. It was further held that tbe removal of tbe car from the alley was strictly a corporate function for which tbe city would be liable if negligent, it also appearing that the property owner bad requested tbe city to remove tbe car. No case has been cited by plaintiff that is like tbe instant one, upon the facts, and tbe cases cited are readily distinguishable from tbe instant one upon tbe facts.

“As was said in 1 Dillon on Municipal Corporations (5th Ed.), Section 109:

“ ‘In its governmental or public character, tbe corporation is made, by tbe state, one of its instruments, or the local depositary of certain limited and prescribed political powers, to be exercised for the public good on behalf of the state, rather than for itself.’

“It will not be questioned but that, in establishing and maintaining a police department in a city, such city is acting for the public good, on behalf of the state, rather than for itself. The legislature clothed the city with power to maintain such an organization as a convenient method of exercising a function of government. By this means the state intends to establish and maintain peace, security, health, and the general welfare.

“It is well established in this state that a municipal corporation is not ordinarily liable for the torts of a police officer while in the enforcement of police regulations. . . . Whether a city shall have a police department or what shall be its character and extent is governmental. Members of the police department are not agents and servants of the city in the sense that the city may be liable for wrongs committed by them in the discharge of their duties in that regard.” (Leckliter v. City of Des Moines, 211 Ia. 251, 257, 259.)

“The police officers of a city are not its agents or servants, and it is not responsible for their negligence. This doctrine is strongly stated by Judge Dillon, and he supports his text by an unbroken array of authorities. 2 Dill. Munic. Corp., sec. 773. If police officers are not the agents or servants of the municipality, then it is legally impossible that for their negligence there should be corporate responsibility.

“It is only upon the rule of respondeat superior that corporations are liable for the wrongs of those who are engaged in the conduct of municipal affairs. Judge Dillon says: ‘It may be observed, in the next place, that when it is sought to render a municipal corporation liable for the acts of servants or agents, a cardinal inquiry is, whether they are the servants or agents of the corporation.’ 2 Dill. Munic. Corp., sec. 772. This consideration marks the distinction between cases such as the one in hand and actions for injuries caused by obstructions or defects in streets, for officers in charge of streets are, within the scope of their authority, agents of the corporation, and for their acts the municipality is responsible; while officers appointed to execute the laws and ordinances are not agents engaged in corporate duties, but are public officers appointed at the command of the Legislature by the corporate authorities. There is no more reason for holding cities responsible for the wrongs of police officers than there is for holding counties or townships responsible for the torts of sheriffs and constables.” (City of Lafayette v. Timberlake, 88 Ind. 330, 332, 333.)

We feel impelled to again call attention to the able dissenting opinion in City of Meridian v. Beeman, supra.

Plaintiff concedes that the' negligence of Pilat occurred while he was engaged in the performance of a governmental function, but she contends that he was at the same time also engaged in the performance of a non-governmental function; that as the squad car was used in the discharge of both functions the City thereby forfeited its right to claim immunity from liability for the negligence of Pilat. After a careful consideration of the question involved upon this appeal we find ourselves unable to agree with plaintiff’s position; if it were sustained it would follow, as we have heretofore stated, that if Pilat at the time of the accident were pursuing a felon in the squad car the City could not successfully assert that Pilat was then engaged in governmental duties. In our judgment plaintiff advances a new and far-reaching doctrine, — one that would tend to destroy the old and well-established law that a municipality is not liable for the negligence of police officers while in the performance of governmental duties. If Pilat at the time of the accident was patrolling his beat in the squad car for the sole purpose “of keeping a lookout for defects in the sidewalks, streets, alleys, street lights, sewers and water mains of the City,” or was “removing obstructions upon the streets, alleys and sidewalks of said City, ’ ’ a different question would be presented to us; but we do not intend to intimate that the City, under the facts just assumed, would, in our opinion, lose its right to claim immunity. As observed in the dissenting opinion in City of Meridian v. Beeman, supra, such incidental duties are usually performed by police officers in all of the states of the country.' But in the instant case Pilat was not patrolling his beat in the squad car, and it must be presumed that in the cleaning of the car he was performing one of his principal or dominant duties, which duties are governmental.

The judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

Friend, P. J., and Sullivan, J., concur.


text:
    Charles R. Keeran, Appellant, v. The Wahl Company, Formerly The Wahl Adding Machine Company, et al., Appellees.
    Gen. No. 42,520.

      Opinion filed November 4, 1943.
    Rehearing denied November 23, 1943.
    Moss, Ellman & Inlander, of Chicago, for appellant ; Walter E. Moss, of Chicago, of counsel.
    Winston, Strawn & Shaw, of Chicago, for appellees; George B. Christensen and Edward J. Wendrow, both of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

An action by plaintiff, the inventor of the Eversharp Pencil, against The Wahl Company, the manufacturer of said pencil, and others, for damages that plaintiff claims resulted from a conspiracy of defendants to injure and damnify him; to despoil him of his rights and interests in said pencil, his patents thereon and all patents relating thereto, and all his rights and interests in the Eversharp Company; “to render nil and vacuous his future business ventures”; “to render impotent his inventive gifts,” and to ruin and destroy him through a series of alleged overt acts committed in pursuance of the conspiracy. Plaintiff demanded a jury trial. Defendants filed the following motions to the amended complaint: (a) Amotion to dismiss under Sec. 48 of the Civil Practice Act on the grounds of (1) limitations, (2) prior judgment, and (3) release; (b) a motion to strike under See. 45; (c) a motion to make the amended complaint more definite and certain. By leave of court the affidavit that had been filed by defendants in support of a motion to dismiss the original complaint and the counter-affidavit of plaintiff were permitted to stand as to motion (a). Defendants also filed a motion to strike as insufficient plaintiff’s counter-affidavit. The trial court entered the following order: “This cause coming on to be heard on defendants’ motion to dismiss and supporting affidavit (filed January 4, 1941) and defendants’ motion to strike plaintiff’s affidavit in defense of defendants’ motion to dismiss, and the Court duly having considered briefs of respective counsel, and having heard arguments, and being duly advised in the premises, It Is Ordered that the said motions, and each of them, be granted; that this action be dismissed; and that defendants have judgment of and from the plaintiff for their costs.” Plaintiff appeals from that order.

It will be noted that the trial court did not pass upon defendants’ motions (b) and (c), and, therefore, we are not called upon to determine the sufficiency of the amended complaint. It alleges that plaintiff was the inventor of the Eversharp Pencil and had secured basic patents thereon; that said pencil proved of exceeding mechanical utility and of great commercial worth; that plaintiff incorporated the Eversharp Pencil Company; that said pencil is of intricate construction and plaintiff contracted with The Wahl Company to manufacture it for a stipulated sum per pencil; that said Company manufactured the pencil; that the sales were large and constantly increased in volume; that defendants and others maliciously and wrongfully intending and contriving to injure and damnify plaintiff and the other shareholders of the Eversharp Company, to despoil them of all their rights and interests in said pencil and in their patents thereon and of all their rights and interests in the Eversharp Company, to render nil and vacuous plaintiff’s future business ventures, to render impotent his inventive gifts, and to ruin and destroy him, confederated to that end, and in pursuance and consummation of the conspiracy, they, commencing about March 1, 1916, and continuing until the time of the filing of the original complaint, committed overt acts in furtherance of the conspiracy, by which the ruin of plaintiff was accomplished. The complaint sets up many overt acts and alleges that they were committed by defendants and other conspirators in furtherance of the conspiracy, but upon this appeal it is not necessary for us to recite them.

Plaintiff, in support of his contention that the court erred in entering the judgment order, has argued a number of points that are not essential in the determination of this appeal. We are in accord with defendants’ statement that the question as to whether the amended complaint states a good cause of action is not before us upon this appeal for the reason that the trial court entered the judgment order solely upon defendants’ motion (a), which was a motion to dismiss under Sec. 48 of the Practice Act, on the following grounds: (1) limitations, (2) prior judgment, and (3) release. In this court defendants concede that ground (2) would not warrant the entry of the judgment order and that it may be disregarded; they contend that the sole question for us to determine is whether grounds (1) and (3) justify the judgment order. We are in accord with this contention.

As to ground (1): Defendants’ motion to dismiss, on the ground of limitations, contains only the following: “It appears from the face of the amended complaint that the asserted cause or causes of action did not accrue within the time limited by law for the commencement of an action or suit thereon.” Plaintiff contends: “The statute of limitations cannot be raised by motion to strike or dismiss unless it affirmatively appears from the pleadings attacked that the cause of action is barred by a particular section of the limitations act interposed as a defense,” and cites in support of the contention Burnett v. West Madison State Bank, 375 Ill. 402, where the court states (p. 408): “There is considerable argument in the briefs of the respective parties as to whether the five-year or the ten-year Statute of Limitations should apply. The Statute of Limitations is an affirmative defense and the burden of proving it rests upon the party pleading it. (Schell v. Weaver, 225 Ill. 159.) It is a well-established principle of pleading that the Statute of Limitations can not be raised by a demurrer or motion to strike unless it affirmatively appears from the pleadings attacked, that the cause of action is barred by the particular section of the Limitations act being interposed as a defense.” This contention of plaintiff would undoubtedly be a meritorious one had he made a motion to strike from defendants ’ motion to dismiss the language in relation to limitations, but the record does not show that he made any such motion and, therefore, he waived the defect in the pleading. (See Ill. Rev. Stat. 1943, ch 110, par. 166, sec. 42 (3) [Jones Ill. Stats. Ann. 104.042, subd. (3)]. See, also, Aetna Ins. Co. v. Illinois Cent. R. Co., 283 Ill. App. 527, 553.) The parties agree that there can be no recovery in a civil action for a mere conspiracy and that to make the conspiracy actionable it must be followed by an overt act or acts in furtherance of the conspiracy. Plaintiff cites certain criminal cases that hold that in a criminal prosecution for conspiracy the Statute of Limitations does not begin to run from the time the conspiracy was entered into, but from the date of the commission of the last overt act in furtherance of the conspiracy (see People v. Blumenberg, 271 Ill. 180, 185; People v. Link, 365 Ill. 266, 280, 281, and cases cited therein), and contends that this rule applies to the instant case, and that as there are allegations in the amended complaint sufficient to show that overt acts were committed in pursuance of the conspiracy from about March 1, 1916, down to the time of the filing of the complaint, no part of plaintiff’s cause of action is barred by limitations. Defendants contend that the rule in criminal cases does not apply to the instant proceeding; that in a criminal prosecution for conspiracy the gist of the conspiracy is the unlawful agreement and that the consummation of the conspiracy is not essential to the offense of conspiracy (citing People v. Buckminster, 207 Ill. App. 230; 282 Ill. 177), but that in a civil action based upon a charge of conspiracy it must appear not only that the conspiracy was formed but that an overt act or acts were doné in furtherance of the conspiracy, and they argue that it is the damage done in pursuance of the conspiracy that gives a plaintiff a right of action in a civil proceeding and that the Statute of Limitations begins to run immediately upon the commission of an overt act as to such act. As this record is presented to us we are not called upon to determine the foregoing question. Plaintiff states: “An action for civil conspiracy is not specifically mentioned in Chapter 83 of the Illinois Revised Statutes entitled ‘Limitations’. An action for civil conspiracy is undoubtedly covered by Section 15 (par. 16) of our Limitations Act, providing that ‘all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued.’ ” Defendants state: “It is unnecessary to determine whether the one, two or five year statute applies to ‘civil conspiracy,’ because the averments concerning the five years immediately preceding the filing of complaint are of the same tenor and effect. Plaintiff appears to take the position that there is a five-year period of limitation. For the purposes of this appeal and argument which is on a motion to dismiss the entire case we will not contest plaintiff’s assumption although that assumption is highly debatable.” We find at the conclusion of defendants’ argument that plaintiff’s entire cause of action is barred by the Statute of Limitations, the following significant admission: “It follows from the foregoing [cases cited by defendants] that at most, plaintiff could recover for only such damages as he has sustained within the applicable limitations period,” and defendants complain that plaintiff seeks to recover for alleged grievances dating back for a quarter of a century. But here we have a case where the trial court held that plaintiff’s entire cause of action was barred by the Statute of Limitations. The allegations of paragraphs 19, 20, and 21 of the amended complaint set forth that overt acts in furtherance of the conspiracy were committed in each of the years 1923 to 1938, both inclusive, and that said acts were still being committed at the time of the filing of the complaint. While defendants at the outset of their brief insisted that the question as to whether the amended complaint states “a theoretically good cause of action” is not before this court upon this appeal, they finally seem to realize that the trial court erred in holding that the Statute of Limitations applied to the entire cause of action, and they seek to avoid the effect of the error by contending that “plaintiff has not well pleaded any acts done pursuant to the conspiracy within the period of any applicable statute and, therefore, his entire cause of action is barred”; that “plaintiff does not set out the words in haec verba-, he does not say when, during the 15 years span he covers, the words were published, nor to, or by whom; nor does he even hint as to which and what were oral or which and what were written; he does not even hint at the identity of the ‘ sundry persons . . . rumormongers ’ who ‘furtively disseminated insidious rumors’; as far as the corporate defendants are concerned, he does not allege who the agents were that uttered the supposed libels nor that they were acting within the scope of their authority. ’ ’ Had the trial court passed favorably upon defendants’ motion to strike the complaint under Sec. 45 and also upon defendants’ motion to make the amended complaint more definite and certain, plaintiff would then have had an opportunity to amend the amended complaint. Defendants state that they have not waived or abandoned these motions and that should the instant judgment order be reversed and the canse remanded they will have a right to ask the trial court to pass upon the said motions. In the state of the record defendants should not be heard to raise the instant contention. We hold that the trial court erred in holding that the Statute of Limitations applied to the entire cause of action.

As to ground (3): Was plaintiff’s cause of action barred by the instrument signed by him on February 3, 1927? Attached to defendants’ motion to dismiss under See. 48 of the Civil Practice Act is an affidavit of James H. Winston, which, so far as it applies to the instant question, is as follows:

“In further support of the motion to dismiss herein, affiant shows unto the Court that on February 23,1927, the plaintiff herein, Charles E. Keeran, for the sum of $2500, gave a full and complete release in words and figures as follows:
‘ ‘ ‘ Chicago, February 3rd, 1927.
“ ‘Eeceived from The Wahl Company Twenty-five hundred dollars ($2500.00) in full of all claims and demands of every kind, nature and description which I now have (or may hereafter have), arising out of anything that has heretofore transpired against the said The Wahl Company or any of its agents, officers, directors and employees.
“ ‘C. E. Keeran.'
“ ‘Witness:
“ ‘C. J. Frechette.’
“Further affiant sayeth not.”

The counter-affidavit filed by plaintiff, so far as it pertains to the instrument of February 3, 1927, is as follows:

Plaintiff avers that $2,500 was the amount that The Wahl Company agreed to pay for his Canadian patents and in certain paragraphs of the affidavit plaintiff alleges facts tending to show that the $2,500 was received by him, and the so-called release or receipt was given, for the assignment of his Canadian patents and for no other purpose; that in said transaction plaintiff had implicit faith in, and relied upon the representations of C. J. Frechette, the vice-president of The Wahl Company; that Frechette knew of the perpetuous conspiracy but plaintiff did not; that the release or receipt under the circumstances stated in the affidavit was obtained through duress and fraud and that except for the Canadian patents there was no consideration for it, and he denies that the acceptance of the check and the signing of the receipt or release, released the perpetuous conspiracy that commenced long prior to February 3, 1927, and continued down to the filing of the complaint.- Plaintiff demanded that the issues raised by the motion to dismiss and the affidavit of James H. Winston in support thereof be submitted to a jury. No other affidavits were filed upon said motion. ■

Defendants contend that the instrument signed by plaintiff on February 3, 1927, must be treated as a general release and that by its terms plaintiff released all claims of every kind, whether known to him or not; that even if plaintiff had no knowledge of the alleged conspiracy at the time of the execution of the release such fact would not prevent its being covered by a general release; that “he who gives a general release does so at his peril”; that the release cannot be contradicted by parol evidence even though the alleged conspiracy was not known to plaintiff at the time he signed the release; that the release is a bar to the entire claim of plaintiff.

Plaintiff contends that the so-called release is not under seal and therefore he has the right to show that it was made without consideration, or that it was part payment only, or that it was obtained by fraud, duress or circumvention, and cites in support of the contention Robinson v. Yetter, 238 Ill. 320, 324, 325; Woodbury v. U. S. Casualty Co., 284 Ill. 227, 234, 235. Plaintiff further contends that under the rules that govern the interpretation of releases the instrument cannot be held to be a release of defendants from the claim set up in the complaint; that the so-called release, giving it the most favorable construction for defendants, merely releases The Wahl Company or any of its agents, officers, directors and employees, from all claims and demands of every kind, nature and description “which I now have (or may hereafter have), arising out of anything that has heretofore transpiredand that it is idle to argue that plaintiff by signing the instrument thereby released the defendants in the instant case from the overt acts committed in pursuance of the conspiracy as alleged in the complaint; acts that are in their nature criminal and that were committed after the signing of the release.

“. . . a release, like every other written instrument, must be so construed as to carry out the intention of the parties. This intention is to be sought in the language of the instrument itself when read in the light of the circumstances which surrounded the transaction. The court which interprets must place itself as nearly as possible in the position of the parties when they acted.” (Parmelee v. Lawrence, 44 Ill. 405, 410. See, also, Miller v. Lloyd, 181 Ill. App. 230, 245.) “Nor should the words employed in a release be extended beyond the consideration; otherwise we make a release for the parties which they never intended or contemplated; Rapp v. Rapp, 6 Penn. St., 45; McLarren v. Robertson, 20 Penn. St., 125; Noble v. Burke, 5 Phil., 526; Wharton’s Cont., 1037; Lyman v. Clark, 9 Mass. 238.” (Codding, Admr., v. Wood, 112 Pa. St. 371, 378. Many other cases to the same effect might be cited.) The argument of defendants that the release covers all of the many overt acts set up in the complaint, acts that are alleged to have been committed by defendants after the date of the execution of the release and in pursuance of the conspiracy, that plaintiff alleges was unknown to him at the time of the signing of the release, does not seem sound to us. Diving full effect to the language of the release and considering the language in the light of the conspiracy alleged in the complaint, it is our judgment that it could not be possible that the parties intended to include in the release all future overt acts of defendants committed in pursuance of the conspiracy charged. While this is a civil proceeding, nevertheless, the acts charged are criminal in their nature, and might have been made the basis of an indictment for conspiracy. If the argument of defendants is sound, then, ten years after the signing of the release, they might loot the safe of plaintiff and the release would bar any civil action by plaintiff against them for damages growing out of the looting. Assuming, but not deciding, that the release is broad enough to include all overt acts committed in pursuance of the conspiracy up to the time of the execution of the release, the following express language of the release, “ arising out of anything that has heretofore transpired,” would seem to preclude an interpretation that the release covered overt acts, committed in futuro, in furtherance of the conspiracy. We hold that the trial court erred in holding that the instrument of February 3, 1927, barred plaintiff’s entire cause of action.

There is much feeling shown in the briefs of the parties. Defendants contend that the claim of plaintiff is a preposterous one and that the prosecution of the case is intended to harass defendants and thereby force them to make another settlement to avoid expenses and weeks of trial. To this plaintiff replies: “The plaintiff was the inventor of the Eversharp and the Autopoint pencils, and perfected the Eealite pencil. Through his genius a pioneer industry was founded that has enriched the defendants ’but has left the plaintiff poor indeed — poor in this world’s goods, poor in his good name and poor in his reputation. Plaintiff is the harassed one, not the defendants.” It is a sufficient answer to both positions to state that the merits of the cause are not before us for determination, and it must he understood that nothing that we have heretofore said in this opinion was intended to express any opinion as to the merits of the case.

The judgment of the superior court of Cook county is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Judgment reversed and cause remanded.

Friend, P. J., and Sullivan, J., concur.


text:
    Isabelle Martinez, Appellee, v. Mary Cogan et al., Defendants. Milton L. Cogan, Appellant.
    Gen. No. 42,532.

      Opinion filed November 4, 1943.
    Rehearing denied November 23, 1943.
    J. Kentner Elliott and Herman M. Cogan, both of Chicago, for, appellant.
    Paul B. Fischer, of Chicago, for appellee; Kellam Foster, of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

On February 11, 1933, plaintiff, in the municipal court of Chicago, obtained a judgment by confession against Mary Cogan, Milton L. Cogan and Barney Taub in the sum of $2,167. On May 6, 1942, plaintiff filed a suit to revive the judgment against the three defendants in the original suit. On July 22, 1942, plaintiff filed an amended statement of claim, as follows : •

“The plaintiff claims as follows:
“1. The plaintiff, on the 11th day of February, 1933, recovered in this court in Case No. 2764649 a judgment against the defendants for $2167.00 and $29.20 costs.
“2. Said judgment is in full force and there is due thereon from the defendant to the plaintiff the sum of $2196.20 with interest thereon at the rate of 5% per annum from the 11th day of February, 1933.
. ‘ ‘ The plaintiff claims a revival of the judgment. ’ ’

Defendant Milton L. Cogan entered his appearance and filed his verified defense, the material parts of which read as follows:

“2. He denies that the said judgment mentioned in paragraph 2 of plaintiff’s said statement of claim is in full force and effect as to him or that there is due from him thereon the sum of $2,196.20, or any sum.
“3. Further answering he says: That
“ (a) On March 23, 1933, and after the entry of the plaintiff’s said judgment, said judgment being a provable claim in bankruptcy, he was adjudicated a bankrupt by the District Court of the United States for the Northern District of Illinois, Eastern Division, in cause No. 52668 thereof, entitled ‘In the Matter of M. L. Cogan, also known as Milton L. Cogan, Bankrupt’; the plaintiff’s claim was scheduled among the debts of said bankrupt.
“(b) On June 26, 1933, the defendant obtained his order of discharge in said proceeding whereby he was released from plaintiff’s claim.”

Plaintiff made a motion to strike defendant Milton L. Cogan’s defense, upon the following grounds: “ (1) Said Defense, and each paragraph thereof and particularly the 3d paragraph and said sub-sections thereof does not set up a sufficient defense in law to a revival of the judgment. (2) A discharge in Bankruptcy is no defense to a suit to revive judgment.”

On September 2,1942, the trial court entered the following judgment:

“This cause coming on for hearing upon the motion of the plaintiff heretofore entered herein to strike defendants’ defense and for judgment and the Court being fully advised in the premises sustains said motion.
“Now comes the plaintiff in this cause and moves the Court for judgment on Scire facias and the Court being fully advised in the premises sustains said motion and thereupon it is ordered that judgment of February 11th, 1933, against defendants Mary Cogan, Milton L. Cogan and Barney Taub, for Twenty One hundred Sixty-seven and 00/100 Dollars, be and the same is hereby revived as to defendants, Milton L. Cogan and Mary Cogan for full amount and that said judgment stand in full force and effect for the total amount thereof, as of the date of rendition of said judgment, together with the costs by the plaintiff in that behalf expended, and it is further considered that the plaintiff have and recover of and from the defendant said sum of money, and also the costs by the plaintiff in said former proceeding as well as in the proceeding on this writ of scire facias expended, and interest on the amount of said judgment and on the costs of said prior proceeding from the date of rendition of said judgment to the date of payment thereof, and that execution issue for said sums of money against said defendants. ’ ’

Defendant Milton L. Cogan (hereinafter called appellant) appeals from that judgment and contends that the trial court erred in striking the statement of defense and in entering the judgment in question.

It will be noticed that the judgment is an unqualified revival of plaintiff’s original judgment against appellant, that it adjudges costs against him and orders a general execution to issue against him for the collection of plaintiff’s judgment of 1933, the costs of that judgment and the costs of the revival of judgment proceeding. It is clear that the motion to strike the statement of defense was based upon point (2) in plaintiff’s motion to strike, vis., that “a discharge in Bankruptcy is no defense to a suit to revive judgment.” Such is not the law and plaintiff has failed to cite any authority to sustain the position she assumed in the trial court. It is the established law that a discharge in bankruptcy is prima facie evidence of a release from all provable debts. As we understand plaintiff’s position in this court, she now concedes that a discharge in bankruptcy terminates the personal liability of the debtor, but she contends that the discharge in bankruptcy did not avoid the judgment lien she obtained within four months prior to the filing of the petition for bankruptcy, except as to assets which were 'scheduled and administered in bankruptcy, and that a “refusal to revive the judgment here involved would nullify all right and possibility of plaintiff to proceed against (a) unscheduled assets, (b) assets fraudulently conveyed prior to the discharge in bankruptcy and not administered, and (c) assets abandoned by the trustee.” The record shows that no such position was taken by plaintiff in the trial court and the point made here is an afterthought and without merit. Plaintiff further contends that the burden was upon appellant to protect himself against wrongful levy upon property not subject to the lien of the revived judgment by having the instant judgment order prohibit levies on all after acquired property, and that as he failed to ask for such relief the judgment should be affirmed.

In VanNorman v. Young, 228 Ill. 425, 430, the court said:

“The court instructed the jury that the burden of proof was upon the plaintiffs in error to show that their debt from defendant in error was not barred by his discharge in bankruptcy. The authorities upon the question as to where rests the burden of proof in such case are not in entire harmony. We think, however, the better rule is that a discharge in bankruptcy is presumed to cover all the debts of the bankrupt, and that the introduction in evidence by the bankrupt, when sued, of a certified copy of the order of discharge, or other proof of his discharge in bankruptcy, is prima facie a bar to the claim sued on, and that the burden of proof is upon the plaintiff to show that the claim sued on is not within the terms of the bankrupt’s discharge. (Collier on Bankruptcy, p. 174; Brandenburg on Bankruptcy, sec. 433.) In Sherwood v. Mitchell, 4 Denio, 435, it is said: ‘The discharge is presumptive evidence of all the facts asserted in it, and is conclusive until overthrown by evidence of some fraud which by the act avoids it. Debts arising out of a violation of an official or private trust are not affected by it unless tbe creditor chooses to prove the demand under the bankruptcy. The discharge, it is' true, is general in its terms, and prima facie is a discharge of the bankrupt from all his debts. But the creditor may, notwithstanding, show that his debt is of the excepted class. The onus however, is on him, and if he fails to make proof the debt will be taken to be one of an ordinary character.’ ”

In Alling v. Straka, 118 Ill. App. 184, the court follows the rule laid down in the VanNorman case and holds that if the plaintiff contended that the debt sued on fell within one of the exceptions in the Bankruptcy Act it was a matter of reply for the plaintiff to make- and the burden would be upon her to prove the facts set up in the replication. The court further states that if the plaintiff in that case had alleged in her declaration that the debt was an excepted one, for reasons given, she would have been held to the proof of such allegation in the first instance.

Appellant, in his statement of defense, made out a clear prima facie defense as to the judgment sought to be revived, and if appellant at the time of the discharge in bankruptcy had assets that were not scheduled or administered upon in the bankruptcy proceedings, the burden was upon plaintiff to allege the facts by way of a replication. Had she filed a replication that alleged facts sufficient to evade the effects of the discharge as to her judgment, the burden would have been upon her to prove the facts alleged in the replication. Plaintiff, however, proceeded in the lower court upon the theory that a discharge in bankruptcy was no defense to a suit to revive a judgment.

In this court, plaintiff asserts that as the original judgment was against three defendants jointly it could only be revived as to all defendants or none, and that a denial of revival as to appellant would destroy plaintiff’s right to revive as to the other defendants. This technical argument is an afterthought and without merit. As we have heretofore stated, the instant judgment is an unqualified revival of plaintiff’s original judgment against appellant, and plaintiff’s contention, if sustained, would deprive appellant of his right to set up his discharge in bankruptcy as a defense, as to him.

In Goodman American Ice Cream Co. v. Mendelsohn, 274 Ill. App. 253, we said (pp. 258, 259):

“And in our opinion there is no merit in defendant’s further defense, as stated in his said petition, that after Barney had been discharged by virtue of said bankruptcy proceedings from his obligation on said note, the entry of a joint judgment by confession was erroneous as to both defendants, Barney and Herman. We think it was proper for the court, by its order of November 30, 1932, to ‘vacate’ the confessed judgment as to Barney, and to only ‘open’ the said judgment as to Herman, for the purpose of determining upon a trial on the merits whether or not he was liable to plaintiff on said note. In Seymour v. Richardson Fueling Co., 205 Ill. 77, 83, 84, it is said: ‘The rule that, where a money judgment is a unit as to all the defendants, the judgment must be against all or none, does not apply where a personal defense (such as a discharge in bankruptcy) is established as to one or more of the defendants.’ And in Hem v. Allen, 179 Ill. App. 223, 228, it is said: ‘Where one defendant sets up a defense like a discharge in bankruptcy, which has accrued to him since he signed the joint obligation, such defendant may recover his costs in a suit against both defendants, and yet the plaintiff may he entitled to a judgment against the other defendant.’ (See also Byers v. First Nat. Bank of Vincennes, 85 Ill. 423, 425; Perelson v. Podolsky, 191 Ill. App. 589, 591.)” (See, also, Webster Mfg. Co. v. Pike County Coal Co., 279 Ill. App. 565, 570, 571; The Michels Co. v. Young, 150 Ill. App. 442, 447.)

The judgment of the municipal court of Chicago is reversed and-the cause is remanded with directions to the trial court to vacate the order striking appellant’s statement of defense from the files and to enter an order denying said motion to strike and for further proceedings not inconsistent with this opinion.

Judgment reversed and cause remanded with directions.

Friend, P. J., and Sullivan, J., concur.