author: Mr. Justice Scanlan

text:
    Robert Weis and Greater Chicago Lodge No. 3, Loyal Order of Moose, Appellees, v. James P. Allman, Superintendent of Police, City of Chicago et al., Appellants.
    Gen. No. 43,213.

      Heard in the second division of this court for the first district at the October term, 1944.
    Opinion filed April 2, 1945.
    Released for publication April 17, 1945.
    Barnet Hodes, Corporation Counsel, for appellants; J. Herzl Segal and Sydney B. Drebin, Assistant Corporation Counsel, of counsel.
    Putnam, Johnson, Alschuler & Ruddy, of Aurora, Leonard J. Grossman, and Lawrence E. Dowd, both of Chicago., for appellees; Clarence J. Ruddy, of Aurora, and Leonard J. Grossman, of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

An action in detinue brought by Bobert Weis and Greater Chicago Lodge No. 3, Loyal Order of Moose, incorporated not for profit, for the return of nine “receptacles” and $500 in currency contained in the “receptacles,” taken by the police of the City of Chicago from the premises of the corporation, hereinafter referred to as Chicago Lodge. The case was tried by the court without a jury and a judgment order was entered finding that Chicago Lodge was the owner of the nine receptacles and currency contained therein and ordering the City of Chicago, James P. Allman, Superintendent of Police of the City, and William Doubek, Custodian of the City, to return at once to Chicago Lodge and Bobert Weis, its agent, the said chattels and the $500 in currency, and judgment for $2,500 was entered against the three defendants, to be discharged upon the immediate delivery by defendants to plaintiffs, at the premises of Chicago Lodge, of the nine receptacles and the $500. Defendants appeal.

The material facts are practically undisputed. On March 4,1944, two police officers of the' City of Chicago entered the premises of Chicago Lodge, located in the building at 130 North Wells street, Chicago, to investigate a complaint that there were slot machines in operation in the premises. A girl asked them for their membership cards. They told her that they were police officers, making an investigation, and they walked through a door marked, “Dining Boom.” James Traut, one of the police officers, testified: “There was a bar at one end of this room, and at the other end of the room there were several offices. In the middle of the room were several large posts. There were chairs around the bar, and around one of these posts, alongside one of these posts, there was numerous slot machines, and against the wall there was nickel slot machines. . . . Mr. Pantelis [Assistant Corporation Counsel]: Describe the slot machine that required a nickel to be inserted. A. It is a metal receptacle, and it has a metal base. On the right hand side of the receptacle, there is a lever, coming out, and there is a small opening in which you insert a five cent piece, and you then pull the lever and as you pull the lever, there is five or six nickels showing in an open — . . . Q. Did you play this machine? A. I did. Q. All right, how did you play it? Describe.the method you followed. A. I put a nickel in the slot. I then pulled the lever. As you put the nickel in the slot and pull the lever, there is five or six nickels showing in" the glass, and these nickels move over, and the coin which you inserted is shown. There are three wheels which turn in one way and as these wheels turn, they come to a sudden stop, and there is a — cherries, lemons and oranges and bars and what not, on the first wheel, and there is the same on the second wheel, and the same on the third wheel. Q. Were there any coins returned, or any merchandise returned after you played one of these slot machines? A. No, there wasn’t. Q. How many machines did you play? A. I played three machines. Q. And were they all nickel machines, or did you play any other kind of machines? A. Five cents and ten cents and twenty-five cent machines. Q. And you inserted the coin in each one the same way, through a hole in the metal container? A. That’s right. Q. On your — pulled a lever, and the wheels spin around on each one of them? A. Yes. . . . State what they were. A-. Slot machines. Q. And where are they — how are they played? For what purpose, if you know? Mr. Grossman [counsel for plaintiffs] : I object, if the Court please. The Court: Overruled, if he played it. A. You put in a coin, and if your certain numbers come up, more coins return than what you. put in. Mr. Pantelis: More than you put in? A. That’s right. Q. And did you get any coins out of playing any of the three machines ? Mr. Grossman: He has already answered that, Your Honor. Mr. Pantelis: I don’t know whether he said anything about the three or not. The Court: I don’t know whether he was lucky or not. A. No, I was not lucky. Mr. Pantelis: You weren’t lucky. All right. Did you see any other persons playing the machines at that time? A. There was one person playing the machines. Q. Was he a police officer, or someone on the premises? A. I don’t know who he was. Q. Was he a police officer? A. I don’t know. Q. He wasn’t with you? A. He wasn’t with me. Mr. Pantelis: That’s all.” Upon cross-examination the witness stated that after playing the machines he noticed that there were several cards on the wall above the machines; that he had no search warrant and was not asked by anybody if he had, until after he arrested Weis, when he was aslced if he had a warrant and he stated that he had not. The officer further testified that he had the machines taken from the premises and delivered to the custodian of the department of police; that the machines had money in them; that he put coins in the machines, and found out that they were in operation; that he saw a sign on one of the doors that said, “for members only.” William J. Sullivan testified that he was a police officer of the City of Chicago and that he visited the premises with Officer Traut; that when he entered the place where the slot machines were “there was one man .playing the slot machines;” that he, the witness, played one machine; that there were eight slot machines in all, and another machine that is known as “Jumbo Parade;” that he played a five cent slot machine; that it was “just a regular slot machine, you drop the coin, five cents or ten cents, or whatever it is, you drop the coin, and you pull the lever . . . and if you are lucky, you get a few nickels; ’ ’ that he saw Officer Traut playing the machines; that he took possession of the machines, called the wagon and took them down to the police station; that all of the machines “were slot machines.” Upon cross-examination he stated that his testimony would be practically the same as Officer Traut’s about the cards and about the sign “for members only;” that there was no sign upon the door through which they entered the place where the machines were; that they went to the premises “to investigate a complaint that there was slot machines in operation.” Counsel for the City stated that if there was any doubt in the court’s mind as to whether the nine machines taken were slot machines the City would bring them in. In response to this offer counsel for plaintiffs stated that the question before the trial court was not whether the machines were in form slot machines, but the use to which they were put, and counsel argued that the card above each machine determined the question. Plaintiffs then offered in evidence one of the cards, which reads as follows :

“ — Notice !—
“This Receptacle is the Property op the Greater Chicago Lodge No. 3, Inc., Loyal Order of Moose.
“This receptacle is placed here for one purpose only, to receive donations from the members of Greater Chicago Lodge No. 3, Inc., Loyal Order of Moose for the general and entertainment fund.
Please Do Not Donate Under Any Other Conception.
“If you' are a visitor please refrain from donating or using this receptacle. Donations are received from members of this organization only — and only for the purpose specified.
“For Members Only
Who Wish to Donate to the General and Entertainment Fund
“By Direction: —
“The Board of Officers”

This card was the only evidence introduced by plaintiffs in rebuttal of the testimony of the two police officers. Counsel for plaintiffs made statements to the court as to the nature of Chicago Lodge, its splendid membership, its charitable works, and that the machines were merely “receptacles” “used by us as donation boxes for members only, and not for gambling. ’ ’ The trial court made inquiries of the counsel as to where the money went that was put into the machines, and the counsel stated that it went to the general charity fund of Chicago Lodge. Counsel for the City called the trial court’s attention to the fact that the statements of counsel did not amount to evidence, but the trial court stated that the intent and purpose for which Chicago Lodge used the machines was “a governing circumstance; ’ ’ that the organization was a great one, devoted to charity, and that the money that came from the machines was used for that purpose. Plaintiffs also introduced in evidence a certified copy of a draft order filed March 6, 1944, in the case of People v. Robert Weis, which recites that a motion to suppress evidence and for the return of all property unlawfully taken from defendant’s custody, at 130 North Wells street, was made in that case, upon the ground that the search of the premises by police officers was without a search warrant and the seizure of the receptacles described by the police officers as slot machines and the $500 was an unlawful seizure. The certificate also recites that the motion to suppress came on to be heard before Judge Gibson E. Gobman, and that he entered an order that the property seized by the police officers and the arrest of Weis was without search warrant or without a warrant or process of law, “and the Court finds the fact to be that said search and seizure and arrest were unlawful and without search warrant or warrant of law. It Is Further Ordered that all of said evidence herein before referred to so obtained by the police officers, be and the same is hereby suppressed; ’ ’ and it was further ordered that the information be quashed and defendant Weis discharged. In deciding the instant case, the trial court stated that the machines were not intended for gambling purposes; that the money that went into the machines was used for charity, and that the judgment he would enter would follow the judgment entered by Judge Gorman. Defendants contend that the judgment entered by Judge Gorman has no bearing upon the vital question involved in the instant proceeding, viz: Were the slot machines gambling machines ? Judge Gorman did not pass upon the character of the machines nor the purposes for which they were used, and his decision has no direct bearing upon the question before us. However, the fact that the defendant in that proceeding, Weis, saw fit to file a motion to suppress certain evidence, viz., the slot machines in question, certainly indicates that Weis then regarded the slot machines as gambling machines.

Section 2 of par. 342 of the Criminal Code (ch. 38, par. 342, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 37.272]) reads as follows:

“342. Gambling device defined — Confiscation.] Sec. 2. Every clock, tape machine, slot machine or other machine or device for the reception of money on chance or upon the action of which money is staked, hazarded, bet, won or lost is hereby declared a gambling device and shall be subject to seizure, confiscation and destruction by any municipal or other local authority within whose jurisdiction the same may be found.”

In People v. One Pinball Machine, 316 Ill. App. 161, the Appellate court of the Second District had before it a proceeding brought under Section 2. The ease involved an appeal from an order of the County court of Winnebago county ordering the destruction of a certain pinball machine as a gambling device. The machine was seized without a search warrant in the place of business of one Fox by deputy sheriffs after one of them had played it. The subject of gambling machines and prosecutions brought under Section 2 and statutes akin to it is treated exhaustively in the opinion. In referring to machines like the instant ones, the opinion states (pp. 171, 172):

‘ ‘ The old-fashioned slot machine, commonly called a ‘One armed bandit,’ paying coins directly in uncertain amounts at uncertain intervals, was a pioneer in this field. Prosecutions for operating them, and holdings that they are gambling devices resulted in continuous unstinted effort by the parties interested to invent something that would thwart the law.”

Defendants contend that the testimony of the two police officers as to the character of the machines seized is not contradicted by any competent evidence, that Section 2 makes the machines gambling devices and that the Supreme court of this State and the courts of other states have held that gambling machines are not lawful subjects of property which the law protects, and that, therefore, plaintiffs cannot maintain their action in detinue for the return of the machines. The contention is a meritorious one.

In Frost v. People, 193 Ill. 635, 640, the court adhered to its ruling in Bobel v. People, 173 Ill. 19, that Section 2 was not unconstitutional, and also held that Division 8 of the Criminal Code, that provides for searches and seizures of gaming apparatus or implements and that the thing seized shall. be burned or otherwise destroyed under the direction of the judge, justice or court, was not unconstitutional. The opinion states (pp. 640, 641): “The legislature have determined that gambling implements and apparatus are pernicious and dangerous to the public welfare, and the keeping of them is an offense prohibited by law. They are, therefore, not lawful subjects of property which the law protects, but have ceased to be regarded or treated as property, and are liable to seizure, forfeiture and destruction without violating any constitutional provision. (Glennon v. Britton, 155 Ill. 232.) ” (See, also, People v. One Pinball Machine, supra.)

In Stanley-Thompson Co. v. People, 63 Colo. 456, the court had before it a case where the plaintiff owned certain gambling devices which were stored and not in use. It was admitted that they were gambling devices. The trial court ordered the machines to he destroyed under a section of the Colorado statutes. The appeal was based upon a contention that the Colorado statute relating to gambling devices applied only to such devices as were “used or kept” for the purpose of gambling. The opinion states (pp. 458, 459):

“It is well settled that things which are capable of no use for lawful purposes, and it is established that these instruments are of that class, are not the subject of property. They cannot be recovered in replevin, nor will damages be given for their loss or injury. They are, as some courts have said, ‘ outlaws. ’ Oviatt v. Pond, 29 Conn. 479; Spalding v. Preston, 21 Vt. 9, 50 Am. Dec. 68; Frost v. People, 193 Ill. 635, 61 N. E. 1054, 86 Am. St. Rep. 352; State v. Robbins, 124 Ind. 308, 24 N. E. 978, 8 L. R. A. 438; Mullen v. Moseley, 13 Idaho 457, 90 Pac. 986, 12 L. R. A. (N. S.) 394, 121 Am. St. Rep. 277, 13 Ann. Cas. 450; Miller v. C. & N. W. Ry. Co., 153 Wis. 431, 141 N. W. 263, 45 L. R. A. (N. S.) 334, Ann. Cas. 1914 D, 632.
“If an instrument can have no lawful use, it must be presumed, in the absence of evidence to the contrary, that an illegal use is intended. Police Corns, v. Wagner, 93 Md. 182, 48 Atl. 435, 52 L. R. A. 775, 86 Am. St. 423. Its very existence is an imminent danger * to the social welfare: State v. Soucies Hotel, 95 Me. 518, 50 Atl. 709; and it may be seized under statutory authority, or even under general police regulations. State v. O’Neil, 58 Vt. 163, 2 Atl. 586; Frost v. People, supra.
“The keeping and use of these devices being prohibited by statute, they are a common nuisance. Mullen v. Moseley, supra.”

In People v. One Pinball Machine, supra, the alleged gambling machine was seized without a search warrant after one of the deputy sheriffs had played the machine. The court, after citing the rule laid down in Frost v. People, supra, passes upon the contention of the owner of the gambling machine that it was seized without a search warrant, and states (pp. 175, 176, 177) :

“If there was anything illegal in the proceedings in the instant case it was in the seizure only. There was a trial on the question of the right of destruction under a petition and answer. The machine demonstrated its character as a gambling device in' the presence of the officer who seized it. It is the settled law that where an offense is committed in the presence of an officer, he has authority to make an arrest without a warrant. (People v. Caruso, 339 Ill. 258.) If the right of arrest exists, the right of search and seizure is incidental thereto. (People v. Davies, 354 Ill. 168; People v. Macklin, 353 Ill. 64; People v. Roberta, 352 Ill. 189.) The machine being a gambling device under section 2, the right to arrest the possessor existed under section 4. We know of no reason why an omission to make an arrest in such a case would deprive the officer of the right to seize the contraband machine by which an offense was committed in his presence. One reason for upholding the right of seizure alone is that the possessor might escape before the officer could make the arrest. Another is that if the officer was obliged to first procure a search warrant, the contraband article,' during his absence on that mission, might be removed from the premises and concealed, and the warrant, being effective only as to the particular premises, would be wholly ineffective. Furthermore, the right to summarily seize and destroy contraband articles, and to seize and sell articles not inherently illegal when unlawfully employed, without process or judicial proceedings, has been upheld in a number of jurisdictions. Fishing nets maintained in State waters in violation of the law may be seized and destroyed, Lawton v. Steele, 152 U. S. 133, 38 L. Ed. 385; fish baskets likewise used may be seized and destroyed, Weller v. Snover, 42 N. J. Law (13 Vroom) 341, automobile used for illegal transportation of liquor may be condemned and forfeited, State v. Lee, 113 Kan. 462, 215 Pac. 299; State v. 1920 Studebaker Touring Car, 120 Ore. 254, 251 Pac. 701; Keeter v. State ex rel. Saye, 82 Okla. 89, 198 Pac. 866.
“In Glennon v. Britton, 155 Ill. 232 at page 245, the Supreme Court of this State said: ‘Under the various acts of Congress goods and things are seized, condemned and destroyed without service of process on the owner, other than seizure of the goods and arrest of the person in whose possession they are found, and that such statutes, and proceedings under them, are regarded constitutional and valid has been determined in many adjudicated cases in the Federal courts.’
“The seizure of property employed as a gambling device in violation of a statute is a proceeding in rem, and being contraband, the provisions of the Constitution relating to trial by jury and depriving one of his liberty or property without due process of law are inapplicable. (Cambria v. Bachmann, 93 W. Va. 463, 118 S. E. 336.) To the same effect is Mullen & Co. v. Moseley, 13 Idaho 457, 90 Pac. 986, 12 L. R. A. (N. S.) 394.”

Plaintiffs contend that a slot machine is not per se a gambling device, that defendants- failed to prove that the machines were gambling machines and the trial court was justified in holding that the machines were mere donation receptacles. Plaintiffs assume that in passing upon this contention we should consider statements made by lawyers to the trial court that the machines were used only as donation boxes, that the money placed in the machines by the members of the lodge was intended as donations,, to be used solely for charity, and that the players knew fhat they would never receive any returns. Indeed, the defense was practically predicated upon statements of counsel that had no basis in the evidence. In this court counsel for plaintiffs make an additional statement, viz., that the machines were so adjusted that they would pay no return to the player, and in support of this statement they argue that 'as the police officers received' no returns when they played the machines we must assume that the machines were so adjusted that they paid no returns. Counsel add: “The officers did not get their money back — of course not, any more than they would if they had placed their money upon a tambourine of the Salvation Army, or a colléction box in church on Sunday.” In response to these statements defendants make the following pertinent inquiry: If the slot machines were intended as mere receptacles to receive donations, why was it necessary for Chicago Lodge to invest $5,000 in' the purchase of nine slot machines'? It certainly places quite a strain upon one’s credulity to picture the members of this lodge going through the motions necessary to play these nine slot machines when they knew that the machines never paid any returns and that they were, in fact, the same as “a collection box in church on Sunday.” A person plays a slot machine because he is willing to take a chance that there may be a return. Plaintiffs contend that the language on the cards above the machines shows conclusively the use the lodge made of the machines. If this argument is carried to its logical conclusion then a keeper of a gambling house might protect himself from prosecution by placing a sign upon his door that no gambling would be permitted upon the premises. It will lie noted that the cards did not state that the machines never returned any money to the player. Defendants offered to bring the machines into the court room if the trial judge had any question as to the nature of the machines ’ character. Plaintiffs did not ask that the machines be brought into court, nor did' they offer any evidence to show that the machines never returned any money to the players. At the close of the case counsel for plaintiffs made the following significant statement to the trial court: “We have a market for these machines. It is our desire to buy a club house — we would like to dispose of those machines. If we get them, we will put them on a truck and take them immediately out of town — we wouldn’t hold them thirty minutes.”

Plaintiffs contend that the opinion rendered in People v. One Slot Machine, 303 Ill. App. 337 (abstract opinion), supports the judgment entered by the trial court. In that case the evidence adduced by the prosecution was very meager, and the Appellate court held that there was no evidence to show how the player of the machine could win, “nor did it appear that anyone could win or lose anything.” That case has no application to the instant one upon the facts. It was relied upon by the appellant in People v. One Pinball Machine, supra, but the court held that it had no application to the facts of the case before the court. We note, however, that the opinion in People v. One Slot Machine states:

“If this machine was a gaming device it was subject to be seized and destroyed. It is not the name of the machine or the labels that appeared thereon which determines its character but that is determined by the manner and result of its operation. Mackay v. State, an Oklahoma case reported in 83 Pac. (2nd) 611. In Steed v. State, an Arkansas case reported in 72 S. W. (2nd) 542, the evidence disclosed that the machines seized were so constructed that by putting a nickel in a slot, ten marbles were released and brought into play one at a time by pulling a lever and then by pulling another lever each marble is shot out to a large board containing, holes which are numbered into which the marbles drop and that the patron who gets the largest score wins the game and the prize. The court held that because it appeared that the only reasonable and profitable use to which they might be put was use in a game of chance, they were in fact gambling devices within the meaning of the code provisions of that state.” (Italics ours.)

Plaintiffs contend that defendants failed to answer their statement of claim and therefore all of the material allegations of the statement were admitted. It is a sufficient answer to this contention to say that no such point was made upon the trial; that the case was tried upon the merits and without reference to the state of the pleadings.

We have considered the. argument of plaintiffs that the judgment is not against the manifest weight of the evidence, and find it without merit.

Plaintiffs contend that defendants have no right of appeal from the instant judgment as they are mere stakeholders of the slot machines, and they are bound to obey the order of the court to turn over the machines and money to plaintiffs. Plaintiffs concede that this contention “presents a novel suggestion,” and they admit that “it may not be vital to the more important issues here involved.” As defendants were not mere stakeholders there is no merit in the contention.

We have considered several other contentions raised by plaintiffs, but it would unduly extend this opinion to refer specifically to them. We find them without merit.

It is conceded that, the Loyal Order of Moose is a very worthy organization and carries on splendid charitable works, but under the evidence and the law we would not be justified in sustaining the judgment of the trial court. The law in question applies to all.

The judgment of the Municipal court of Chicago is reversed.

Judgment reversed.

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


source: Caselaw Access Project

author: Justice Kiley.

license: Public Domain

text:
    Marin Klarich, Appellant, v. Catherine Parker and Vincent M. Nolan, Appellees.
    Gen. No. 42,870.
    Heard in the third division, first district, this court at the October term, 1943;
    opinion filed March 21, 1945;
    rehearing denied April 10, 1945; released for publication April 10, 1945.
    B. M. Steiner, for appellant;
    John W. Dorgan and John J. Lyons, for appellees.
   Opinion by

Justice Kiley.

Not to be published in full.


author: Justice Kilby.

text:
    James E. Collins, Appellee, v. Elgin, Joliet and Eastern Railway Company, Appellant.
    Gen. No. 43,008.
    Heard in the third division, first district, this court at the April term, 1944;
    opinion filed March 21, 1945;
    released for publication April 10, 1945.
    Knapp, Cushing, Hershberger & Stevenson, for appellant; Harlan L. Hackbert, of counsel;
    William Wallace McCallum and Marion J. Hannigan, for appellee.
   Opinion by

Justice Kilby.

Hot to be published in full.


author: Justice Lupe.

text:
    Montgomery Ward and Company, Inc., Appellee, v. Philip Blum and Company, Inc., Appellant.
    Gen. No. 42,821.

      Heard in the third division, first district, this court at the October term, 1943;
    opinion filed March 21, 1945;
    released for publication April 10, 1945.
    Smith, Bundesen, White & Raynor, for appellant; Milton D. Smith and Russell Bundesen, of counsel;
    William L. Lamey and L. E. Oliphant, Jr., for appellee.
   Opinion by

Justice Lupe.

Not to be published in full.


text:
    G. S. Blakeslee and Company, Appellee, v. Western Union Telegraph Company, Appellant.
    Gen. No. 42,867.
    Heard in the third division, first district, this court at the October term, 1943;
    opinion filed March 21, 1945;
    released for publication April 10, 1945.
    Eekhart, Klein, McSwain & Campbell and Francis R. Stark, for appellant; P. B. Eekhart, Paul Hassell and M. A. Palumba, of counsel;
    D’Ancona, Pflaum, Wyatt, Marwick & Riskind, for appellee.
   Opinion by

Justice Lupe.

Not to be published in full.


author: Presiding Justice Niemeyer.

text:
    Frankenstein and Company, Appellee, v. Adams and Austin Building Corporation, Appellant.
    Gen. No. 43,179.
    Heard in the first division, first district, this court at the October term, 1944;
    opinion filed March 26, 1945;
    rehearing denied April 11, 1945; released for publication April 11, 1945.
    McCarthy & Toomey, for appellant; Frank A. McCarthy and John E. Toomey, of counsel;
    David I. Lipman, for appellee; Harry G. Fins, of counsel.
   Opinion by

Presiding Justice Niemeyer.

Not to be published in fifil.


text:
    Dorothy Witherspoon, Appellant, v. Central Greyhound Lines, Inc., Appellee.
    Gen. No. 43,261.

      Heard in the first division, first district, this court at the December term, 1944;
    opinion filed March 26, 1945;
    released for publication April 11, 1945.
    Joseph D. Ryan and Louis P. Miller, for appellant;
    Ryan, Condon & Livingston, for appellee; John M. Tuohy, of counsel.
   Opinion by

Presiding Justice Niemeyer.

Not to be published in full.


text:
    Pioneer Trust and Savings Bank, not Individually but as Trustee, Appellee, v. Western Tire Auto Stores, Inc., Appellant.
    Gen. No. 43,271.
    Heard in the first division, first district, this court at the December term, 1944;
    opinion filed March 26, 1945;
    released for publication April 11, 1945.
    Freeman & Freeman, for appellant; Earl Freeman, of counsel;
    Henry Pollenz, for appellee; S. B. Rosenzweig, of counsel.
   Opinion by

Presiding Justice Niemeyer.

Not to be published in full.


text:
    Rose Guger, Appellant, v. Alfrieda Tolusas et al., Appellees.
    Gen. No. 43,284.
    Heard in .the first division, first district, this court at the December term, 1944;
    opinion filed March 26, 1945;
    released for publication April 11, 1945.
    John O. Wagner, for appellant;
    Stacy W. Osgood, for appellees.
   Opinion by

Presiding Justice Niemeyer.

Not to be published in full.


author: Justice Matchett.

text:
    Charles W. Speiring, Appellee, v. Chicago and Eastern Illinois Railroad Company, Appellant.
    Gen. No. 43,131.

      Heard in the first division, first district, this court at the October term, 1944;
    opinion filed March 26, 1945;
    rehearing denied April 11, 1945; released for publication April 11, 1945.
    Rawlins & Wright and T. N. Cook, for appellant; James F. Wright and F. W. Johnson, of counsel;
    Edward B. Henslee and Paul R. Brown, for appellee; Melvin L. Griffith, of counsel.
   Opinion by

Justice Matchett.

Not to be published in full.


text:
    Marja Wolaszek, Appellee, v. Polish National Alliance of the United States of North America, Appellant.
    Gen. No. 43,268.
    Heard in the first division, first district, this court at the December term, 1944;
    opinion filed March 26, 1945;
    released for publication April 11, 1945.
    Casimir R. Wachowski and Theodore A. Siniarski, for appellant; Casimir R. Wachowski and Theodore A. Siniarski, of counsel;
    Michael A. Gerrard, for appellee.
   Opinion by

Justice Matchett.

Not to be published in full.


text:
    People of State of Illinois, Defendant in Error, v. Bernard Distenfield, Plaintiff in Error.
    Gen. No. 43,296.
    Heard in the first division, first district, this court at the December term, 1944;
    opinion filed March 26, 1945;
    released for publication April 11, 1945.
    Walter W., Duft, for plaintiff in error; Joseph J. Sullivan, Jr., of counsel; William J. Tuohy, State’s Attorney, for defendant in error;
    Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice Matchett.

Not to be published in full.


text:
    Clarence C. Walters and Hope Walters, Appellees, v. Checker Taxi Company and Paul Thiede, Defendants. Checker Taxi Company, Appellant.
    Gen. No. 43,299.

      Heard in the first division, first district, this court at the December term, 1944;
    opinion filed March 26, 1945;
    released for publication April 11, 1945.
    Jesmer & Jesmer, for certain appellant; Julius Jesmer, of counsel;
    Vincent D. McConnell, for appellees.
   Opinion by

Justice Matchett.

Not to be published in full.


author: Justice O’Connor.

text:
    Essie Weil, Appellee, v. Goldblatt Bros., Inc., Appellant.
    Gen. No. 43,245.
    Heard in the first division, first district, this court at the October term, 1944;
    opinion filed March 26, 1945;
    rehearing denied April 11, 1945; released for publication April 11, 1945.
    Bernard Brown, for appellant; Wm. A. Goldman, of counsel;
    Charles W. Stiefel, Jr., for appellee.
   Opinion by

Justice O’Connor.

Not to be published in full.


text:
    Esther M. Falstrom, Appellant, v. Spencer Corporation et al., Defendants. G. Larson, Appellee.
    Gen. No. 43,265.
    Heard in the first division, first district, this court at the December term, 1944;
    opinion filed March 26, 1945;
    rehearing denied April 11, 1945; released for publication April 11, 1945.
    Decker & Golden, for appellant; Herbert Decker and C. Jerome Bisesi, of counsel;
    Harry Z. and Bernard Perel, for certain appellee; Defrees, Fiske, O’Brien & Thomson, for certain other appellees; Vincent O’Brien and John Merrill Baker, of counsel.
   Opinion by

Justice O’Connor.

Not to be published in full.


author: Mr. Justice Wolfe

text:
    Arthur F. Haack et al., Appellees, v. Lindsay Light and Chemical Company, Appellant.
    Gen. No. 9,990.
    Heard in this court at the October term, 1944.
    Opinion filed February 8, 1945.
    Rehearing denied April 30, 1945. Released for publication May 1, 1945.
    Winston, Strawn & Shaw, of Chicago, and Charles W. Hadley, of Wheaton, for appellant;

      John C. Slade, Douglas C. Moir, Bryce L. Hamilton and Edward J. Wendrow, all of Chicago, of counsel.
    Perry & Elliott, of Wheaton, for appellees.
   Mr. Justice Wolfe

delivered the opinion'of the court.

The plaintiffs obtained a decree of the circuit court of DuPage county perpetually enjoining the defendant, The Lindsay Light and Chemical Company, from permitting the escape of gas and other substances from its chemical plant situated in the vicinity of their homes in the City of West Chicago. The precise prohibitory terms of the decree will be hereafter'stated as, in our opinion, the scope of the decree, or injunction, is the controlling factor presented by the appeal of the defendant.

The plaintiffs, Arthur F. Haack and his wife, Ethel, Walter E. Giese and his wife, Esther, are, respectively, the owners in joint tenancy of two lots on which their separate residences are located. The complaint for the injunction was filed after the plaintiffs, as joint plaintiffs with other persons residing on real estate in the neighborhood of the defendant’s plant, had procured a verdict and judgment in the circuit court of DuPage county, against the defendant, in the amount of one dollar as damages upon the same grounds which form the charging allegations of the complaint for the injunction; namely, the maintenance of a nuisance by the defendant. The verdict for $1.00 was for damages for injury and annoyance caused to the plaintiffs because of the maintenance of the nuisance by the defendant for five years before the civil suit was commenced on August 25, 1942. On July 27, 1943, the plaintiffs withdrew their motion for a new trial and on the same date filed their complaint for the injunction. There was no appeal from the judgment for the plaintiffs.

The complaint is drawn on the theory that the verdict and judgment in the civil suit establishes as a fact, conclusive as to the defendant, that the defendant by the operation of its plant is guilty of maintaining a common nuisance causing legal injury to the plaintiffs. At the hearing before the chancellor, the plaintiffs introduced the verdict in evidence. Oral testimony was also introduced by the plaintiffs to prove that the conditions complained of in the civil suit attending the operation of the defendant’s plant had existed at the time, and for five years before the commencement of the suit for the injunction. Plaintiffs on this appeal rest their case on the contention that it is an established rule that the verdict, awarding them damages resulting from the maintenance of the nuisance for a period of five years establishes the fact that there is a continuing nuisance which will be abated by an injunction in a court of equity, as a matter of course.

The plant of the defendant is a large building divided into twelve rooms, or units, separated by fire board or similar material. Its products include a large variety of rare earth chemicals (extracted from monazite sand) and a great quantity of hydrofluoric acid. Hydrofluoric acid is produced in the plant by treating flúor spar with sulphuric acid and then heating the mass in a closed container. Hydrogen fluoride is thereby produced which is drawn by suction through pipes into a series of closed and connected containers, consisting of a collector and condensers in which the gas passes over water and condenses forming hydrofluoric acid. The acid is then drawn from the bottoms of the condensers. The residue, or waste, is chiefly calcium sulphate and sand which contains free sulphuric acid, unless the process of extracting the hydrofluoric acid is carefully controlled. The residue of a grayish-white color, is removed by the defendant from its premises in covered trucks.

Sulphuric acid if exposed will gradually evaporate absorbing moisture from the air and forming a vapor or cloud known as sulphur trioxide. As before stated, when hydrogen fluoride is passed over water it condenses to form hydrofluoric acid. Hydrofluoric acid has a strong affinity for water and when it is brought in contact with water-damp window glass, unless immediately wiped off, forms silicon (terra fluoride) which permanently clouds the glass. This clouding of window glass is referred to in the evidence, as “etching,” and is a slow process continuing as long as hydrogen fluoride is found in the atmosphere, and touching wet window glass.

Defendant operates three hydrofluoric acid units, using approximately two tank cars of sulphuric acid each week. Sulphur trioxide and hydrogen fluoride were identified in the evidence as being emitted from the defendant’s plant. Clouding, or etching, of the panes in the windows of their dwellings was one of the annoyances complained of by the plaintiffs as a result of the operation of the defendant’s plant. Whether there was stunting of trees, grass, shrubbery and growing vegetables on the premises of the plaintiffs caused by gases and acids from the plant of the defendant was also a question submitted to the jury in the civil suit.

In the civil suit the plaintiffs recovered damages as consequences resulting from the operation of the defendant’s plant which the jury found constituted a nuisance. The nuisance is a continuing one for which the plaintiffs may bring successive suits for damages if the nuisance is not abated.

The jurisdiction of courts of equity to enjoin nuisances is well established and has existed for a long time. (Stead v. Fortner, 255 Ill. 468.) However, the mere existence of a nuisance does not of itself justify the intervention of a court of equity, and, in the absence of allegations and proof of the existence of equitable grounds, the court does not take jurisdiction. (46 C. J., p. 766, secs. 373-383; Oswald v. Wolf, 129 Ill. 200; City of Pana v. Centred Washed Coal Co., 260 Ill. 111; City of Kankakee v. New York Cent. Ry. Co., 387 Ill. 109; Carlisle v. Cooper, 21 N. J. Eq. 576.) It is a general rule, and one which was formerly enforced with very considerable strictness, that,/before a court of equity will interfere by injunction to restrain a private nuisance, the plaintiff must establish his right in a court of law.- — Village of Dwight v. Hayes, 150 Ill. 273, 278. While in modern times the strictness of this rule has been somewhat relaxed, there is still a substantial agreement among the authorities, that to entitle a party to equitable relief before resorting to a court of law, his case must be clear, so as to be free from substantial doubt as to his right of relief. — Oswald v. Wolf, 129 Ill. 200. (City of Kankakee v. New York Cent. Ry. Co., 387 Ill. 109.)

The plaintiffs for an injunction for the abatement of a common nuisance, having established his right in a court of law, that is, having established that the defendant is maintaining a nuisance resulting in legal injury and actionable damages to the plaintiffs, have thereby established a case for the intervention of a court of equity. If the nuisance is a continuing one, the damages awarded the plaintiffs being for past and not for prospective damages, and well fixed equitable grounds exist for the intervention by injunction, it is not error to issue the injunction. (Paddock v. Somes, 102 Mo. 226,14 S. W. 746; Williams v. Haile Gold Mining Co., 85 S. C. 1, 66 S. E. 117; American Smelting & Refining Co. v. Godfrey, 158 Fed. 225; Winhold v. Finch, 286 Ill. 614; Village of Dwight v. Hayes, 150 Ill. 273.)

The plaintiffs and the witnesses called by them testified that the panes in the windows of their homes were etched; that at times there was a bluish haze or vapor which would stay about six feet from the ground until dispersed by wind; that there was something in the air which irritated the nose and throat causing’ coughing, which was relieved indoors; that a white powdery substance from the defendant’s trucks got on their premises. The verdict has determined that the conditions ' complained of by the plaintiffs are the result of the nuisance maintained by the defendant. The injury is constant and frequent and no fair and reasonable redress can be had in a court of law by the plaintiffs. The nuisance causes actionable and substantial damages to the comfortable and reasonable occupation of their homes. (Chicago-Virden Coal Co. v. Wilson, 67 Ill. App. 443; Virginia B. Co. v. London, 114 Va. 334, 76 S. E. 306.)

Referring to the issuance of an injunction to abate a nuisance the Supreme Court in the case of Winhold v. Finch, 286 Ill. 614, page 619 says: “The irreparable injury necessary to give a court of equity jurisdiction in such a case is not one so great as to be impossible of compensation, but one of such character that the law cannot give adequate compensation for it. 'The fact that no actual damages can be proved, so that in an action at law. the jury could award nominal damages, .only, often furnishes the very best reason why a court of equity should interfere in a case where nuisance is a continuous one.’ (Elliott on Roads and Streets, 497; Newell v. Sass, 142 Ill. 104.) Where an injury is of such constant and frequent occurrence that no fair or reasonable redress can be had for it in a court of law it may be enjoined. (Chicago General Railway Co. v. Chicago, Burlington and Quincy Railroad Co., 181 Ill. 605.)”

The plaintiffs having established their right in a court of law, it is our opinion that the equitable doctrine of laches relied upon by the defendant should not bar the plaintiffs from being granted the injunction. (City of Pana v. Central Washed Coal Co., 260 Ill. 111.) The plaintiffs were owners of their premises before the defendant purchased the building in which their chemical plant is located. The injuries complained of by the plaintiffs were the result of a slow process as hereinbefore stated. (American Smelting & Refining Co. v. Godfrey, 158 Fed: 225.)

The prohibitory terms of the injunction are as follows: ‘ ‘ Ordered by the court, that the defendant, Lindsay Light and Chemical Company, a corporation, , be and it hereby is perpetually enjoined and restrained from continuing to so operate its business and manufacturing plant in such a manner that hydrogen fluoride gas, hydrofluoric acid, and sulphur trioxide are emitted, issued, or discharged from the building and premises so occupied by the said defendant and diffused in the air in and about its said premises and the premises of the plaintiffs; and enjoining the said defendant from continuing to so operate its said business in such a manner as to interfere with the reasonable comfort and enjoyment by said plaintiffs and each of them of their respective homes.” The last semicolon of the decree, together with the words, “and enjoining the said defendant from continuing to so operate its said business,” are improper in the decree, and should be stricken. (City of Kankakee v. New York Cent. Ry. Co., 387 Ill. 109.)

The cause is reversed and remanded with directions to the circuit court of DuPage county to strike that part of the decree herein declared to be improper, otherwise the decree is affirmed.


text:
    Clara H. Rogina, Administratrix of Estate of Raymond J. Rogina, Deceased, Appellee, v. Midwest Flying Service, Inc., Appellant.
    Gen. No. 9,994.
    Heard in this court at the October term, 1944.
    Opinion filed February 8, 1945.
    Opinion modified and rehearing denied April 30, 1945. Released for publication May 1, 1945.
    Gates W. Clancy, of Chicago, Krusemark & Krusemark, of Joliet, and Aiken, McCurry, Bennett & Cleary, of Chicago, for appellant; Charles R. Aiken, of Chicago, of counsel.
    Donovan, Bray & Gray, of Joliet, for appellee; Robert W. Thomas, of Joliet, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

The Midwest Flying Service, Inc., conducted a school for airplane pilots at Stinson airport on route 66 between Joliet and Chicago of which Herman A. •Maurer was manager. In October 1942, the Midwest was conducting a pilot instruction program under Government contract, which required each student to receive five hours of night flying as a part of his training. The Stinson airport was not lighted for night flying and the Midwest had arranged with the Joliet municipal airport to use its facilities for this phase of the instruction course.

On October 17, 1942, the Midwest had a class for night flying at the Joliet airport. Herman A. Maurer and Burney Peters had flown a plane from Stinson field to the Joliet airport for use in the flying course. At about 12:25 a. m., on this night Maurer and a man named Raymond J. Rogina took out a plane to make a flight around the field a few times. They entered the plane and started off, had cleared the runway and attained an altitude of about 150 feet, when for some rea- • son, the plane crashed and both Maurer and Rogina were killed. Clara H. Rogina, administratrix of the estate of Raymond J. Rogina, deceased, started suit in the circuit court of Will county against Evalina Maurer, administratrix of the estate of Herman Maurer, deceased, and the Midwest Flying Service, Inc., for damages alleged to have been sustained by the death of Raymond Rogina, deceased.

The case was heard before a jury. At the close of the plaintiff’s case, the defendants entered a motion for a directed verdict in their favor, but this motion was overruled. At the close of all the evidence, a like motion was presented, and the same was overruled. By agreement of the parties, the jury was permitted to bring in a sealed verdict. The jury, by its verdict, found the Midwest Flying Service, Inc., guilty, and assessed the plaintiff’s damage at $10,000. It did not bring in any verdict as to the defendant, Maurer (which in law was equivalent to a verdict of not guilty). The plaintiff made a motion for a new trial as to Maurer. The Midwest Flying Service, Inc., entered a motion for judgment notwithstanding the verdict, and also a motion for a new trial. On February 23, 1944, judgment was entered in favor of the plaintiff and against the Midwest Flying Service for the sum of $10,000.

The complaint consisted of three counts. By her first count, plaintiff charged that at midnight on October 18, 1942, Raymond Rogina became a passenger at Maurer’s invitation in an airplane operated by Herman Maurer; that Rogina had no control, or power of control or direction, over the operation or movement of said airplane; that while Rogina was such passenger, Maurer negligently flew the plane either (a) propelling it into trees and rising ground, or (b) turning it in violation of the airport regulations thereby causing it to collide with the trees, etc.; that by such collision the plane was caused to crash and burn which resulted in the death of Rogina and Maurer; and, that Rogina was at all times ‘‘in the exercise of due care and caution for his own safety. ■’

In the second count, it was averred that Midwest Flying Service, Inc., invited Rogina to become a passenger in an airplane it operated by and through Herman A. Maurer, its duly authorized agent and servant in its behalf; that Rogina had no power or control over the movement or direction of the plane; that Midwest, through its agent and servant Maurer, negligently flew the plane propelling it into the trees and rising ground or causing it to collide therewith by turning it in violation of the airport regulations; and, that Rogina was in the exercise of due care for his own safety.

Plaintiff alleged in her third count that Midwest entrusted to and permitted its agent, Herman A. Maurer, to operate and fly said airplane; that Midwest was thereby guilty of negligence proximately causing the death of Bogina because Maurer was incompetent to so operate, control or pilot said airplane in the nighttime and was not a person qualified with the requisite skill and training in the operation of airplanes in the nighttime, and because of the inexperience and lack of skill and qualifications of the said Herman A. Maurer to pilot and operate an airplane in the nighttime; that Bogina had no power or control over the movement or direction of the plane; that Midwest negligently entrusted the plane to Maurer, who by reason of his inexperience, incompetency and lack of skill and training in the operation of airplanes in the nighttime negligently flew the plane into the trees, etc., or negligently turned the plane in violation of the airport regulations ; and, that Bogina was at the time in the exercise of due care for his own safety.

The defendants specifically denied each averment of the complaint.

. From the judgment in favor of the plaintiff as against the defendant, the Midwest Flying Service, Inc., the Midwest has perfected an appeal to this court. After the case had been submitted and appellant and appellee had filed their briefs, the appellant asked leave to file an additional record and abstract to show what had been done in the trial court relative to the suit against Herman Maurer’s administratrix, etc. The appellee filed objections to this motion. The motion was taken with the case, and after a full consideration, we have decided that the same should be allowed to be filed. The clerk of this court is hereby ordered to file same as of December 12,1944.

The additional abstract shows that on April 21,1944, a judgment was entered in favor of Evalina G-. Maurer, administratrix of the estate of Herman A. Maurer, deceased. On July 18, 1944, Clara H. Bogina, administratrix, filed notice of appeal to the Appellate Court, second district, etc. On September 6, 1944, an extension of 45 days was granted for the filing of the record. On December 1, 1944, an order of court was entered finding that the time within which Clara H. Bogina, the appellant, should file her record of appeal had expired and the court dismissed the appeal. '

Numerous errors are assigned by the appellant to support its contention that the judgment of the trial court should be reversed. We think only one need be considered for the proper decision of this litigation. It is urged that the jury’s action acquitting the administratrix of the estate of Herman Maurer, deceased, precludes a recovery against the corporation which owned, controlled and operated the plane; that inasmuch as the plaintiff’s theory of liability as to the corporation is based upon doctrine of respondeat superior, and in such case a finding that the servant, Herman Maurer, was not guilty operates to exonerate the master of any fault. In other words, it is submitted that a principal may not be held liable for the acts of the agent if the agent is acquitted. This same question has been frequently before this court, and the other Appellate Courts, and Supreme Court. The rule as claimed by the appellant has been adhered to. Billstrom v. Triple Tread Tire Co., 220 Ill. App. 550; Larson v. Hines, 220 Ill. App. 594. In the latter case, we use this language: “A number of grounds are urged for a reversal of the judgment. The main point raised is, that inasmuch as the verdict of the jury found that the engineers in charge of the respective trains involved in bringing about the accident were not guilty of the negligence charged in operating the engines and trains, that this necessarily also acquits the appellant from liability under the doctrine of respondeat superior. .It is well settled that, in an action, whether brought against the employer severally or jointly with the employee, the gravamen of the charge is, and must be, the negligence of the employee; and no recovery can be had unless it be proven and found by the jury that the employee was negligent. Stated in another way: If the employee who causes the injury is free from liability therefor, his employer must also be free from liability. So, too, from the principle, that there can be no liability on the part of an employer for the act of his employee in which he took no part, if the employee is free from liability, it follows that a judgment in favor of the employee in an action brought against him for an injury caused by such an act is a bar to a recovery against the employer in an action brought against him for the same cause of action. Hayes v. Chicago Tel. Co., 218 Ill. 414; Anderson v. West Chicago St. Ry. Co., 200 Ill. 329.” To the same effect is Bunyan v. American Glycerin Co., 230 Ill. App. 351; Antrim v. Legg, 203 Ill. App. 482. The jury having found Herman Maurer, the agent of the Midwest Flying Service, Inc., not guilty of negligence that was the proximate cause of the injury that caused plaintiff’s intestate death, then under the first and second count of the complaint the judgment against the defendant cannot stand.

It is insisted by the appellee that the appellant has waived the right to raise this question, as the same was not raised in its motion for a new trial. We find no merit in this contention.

It is claimed by the appellee that the third count of the complaint is drawn on a different theory than that of the first and second counts; that this count is not predicated solely on the negligence of the servant, Maurer who has been acquitted. Part of the third count is as follows: “That notwithstanding its duty in the premises as foresaid the defendant, The Midwest Flying Service, Inc., carelessly, negligently and improperly entrusted and permitted said airplane to the operation and control of the said Herman A. Maurer at the time and place aforesaid, and the said Herman A. Maurer carelessly, negligently and improperly moved, propelled, flew or caused to be moved, propelled or flown, and carelessly, negligently and improperly operated the same, by reason of his inexperience, incompetency and lack of skill and training in the operation of airplanes, in the nighttime in one or more of the following particulars, thereby proximately causing the injury and death of plaintiff’s intestate.”

It is charged in this count that the Midwest Flying Service, Inc., was negligent in operating the plane, through Maurer who was inexperienced in flying in the nighttime. Whether this is true or not, it is immaterial under the circumstances and issues in this case. Before the plaintiff can recover from the defendant, she must show it to be guilty of some negligence that was the proximate cause of the injuries to Bogina, plaintiff’s intestate. Although Maurer may have been inexperienced as a night flyer, unless he did something that was the proximate cause of the injury which caused the death of Bogina, the Midwest cannot be held liable, or responsible for damages for Bogina’s death. Since the jury, by its verdict, found that Maurer was not guilty, of any negligence which caused Bogina’s death, it seems clear that no negligent acts on the part of the Midwest Flying Service, Inc., was the proximate cause of the plaintiff’s intestate injuries.

It is our conclusion that the doctrine of respondeat superior applies in this case, and the jury having found the defendant, Herman A. Maurer, not guilty of any negligence which was the proximate cause of .Raymond J. Bogina’s death, then Maurer’s principal, The Midwest Flying Service, Inc., cannot be legally liable for Bogina’s death.

The judgment of the circuit court of Will county is hereby- reversed.

Judgment reversed.


text:
    Edwin J. Sheldon and Ruth L. Sheldon, Appellants, v. George A. Brandstetter and Eva I. Brandstetter, Appellees.
    Gen. No. 9,996.
    Heard in this court at the October term, 1944.
    Opinion filed February 8, 1945.
    Rehearing denied April 30, 1945. Released for publication May 1, 1945.
    Snyder & Clarke, of Waukegan, for appellants; Gerald C. Snyder and Lewis D. Clarke, both of Waukegan, of counsel.
    Runyard & Behanna, of Waukegan, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.

Edwin J. Sheldon and Ruth L. Sheldon brought an action in the circuit court of Lake county against George A. Brandstetter and Eva I. Brandstetter to have a deed, which was absolute on its face, declared a mortgage and to allow them the right to redeem the .property. The complaint alleges that the plaintiff, Edwin J. Sheldon, was the owner of the premises in question, which he purchased for $2,500; that he made improvements on the same costing approximately $8,500; that on Aug. 28,-1-935, he was the owner of said premises and on that date a foreclosure proceeding was instituted against him; that a decree of foreclosure of the mortgage was entered, on Oct. 31, 1935; that the plaintiff, Edwin J. Sheldon, requested the defendants to loan him the money to satisfy the foreclosure proceeding, and that such a loan was made, and the deed in question, was given to secure said loan; that this deed was given merely as security, and not as an absolute conveyance of the property; and that the plaintiffs remained in possession of the same up to, and including the time of the filing of the complaint; that the plaintiffs are now ready, able and willing to pay, and have offered to pay the loan; that the defendants refused to account to the plaintiffs for monies repaid on the loan and refuse to return the premises, and have served notice upon them demanding possession of the premises. The complaint prayed for an, injunction to restrain the defendants from instituting a suit for the possession of the premises, and to have an accounting taken, and that a time for redemption be fixed, and that on the payment of redemption money, the defendants should be compelled to reconvey the premises to him.

The defendants filed an answer denying that the plaintiffs were in the exclusive possession of the premises; denied that any loan was requested, or agreed to be made by the defendants to the plaintiffs. They admit the execution, and delivery of the deed in question, and allege that it was for a good and valuable consideration, and was for the purpose of purchasing the property. The answer further alleges that the plaintiffs have been in possession of the premises, as tenants of the defendants, and that any payments that were made, were made as rent, and not a repayment of any loan. The answer admits that the defendants have refused to reconvey the premises to the plaintiffs, and have refused to make an accounting, and allege that the deed was given as an absolute purchase of the premises. They admit that they will institute a forcible entry and detainer proceeding against the plaintiffs, unless restrained by an order of the court. The case was heard before the court without a jury. The plaintiffs introduced evidence to sustain their contention, and at the close of the evidence, the defendants entered a motion for judgment. This motion was taken under advisement.

The defendants introduced evidence in support of their contention that the deed was absolute, and not a mortgage. The court found that the deed was what it purported it to be, and not a mortgage, and entered a decree to that effect. It is from this decree that the appeal is prosecuted to this court.

Edwin J. Sheldon testified in his own behalf, and stated the amount that he had invested in the property ; that there was a mortgage on the property which, together with special assessments, costs, etc., amounted to about $4,400; that there was a foreclosure suit started against him, and that a decree of foreclosure had been entered in said suit; that he asked the Brandstetters to make him a loan on the premises and redeem the same for him; that the Brandstetters agreed to this procedure, and loaned the money to Mm, but demanded a deed as security for the loan, instead of a mortgage, and pursuant to such agreement, the deed was executed.

Eva' Brandstetter handled the transaction for the defendants, and she flatly denies that there was any request made for a loan, or that the defendants ever agreed to make the Sheldons a loan, but they only discussed a sale of the property; that prior to the transaction in question, Sheldon had been a tenant of a garage of the Brandstetters, and were in arrears over $1,300 for rent; that a note was executed by Sheldon for this rent in 1931, and that in 1933, another discussion was had about further arrears in rent, and the Sheldons executed two notes of $700 each for back rent; that a judgment by a confession was taken on the $1,300 note; that at the time of the deed transaction, Mrs. Brandstetter mentioned the fact that this note had been placed in judgment, and in figuring the amount of the purchase price of the property, this judgment was included in the amounts of indebtedness that Sheldon owed, which was approximately $6,000. She testified that she was acquainted with the price of real estate, such as this, in the Village of Grays Lake, and, in her opinion, it should be $6,000. Mrs. Brandstetter further testified that a lawyer drew the deed at her request; that he figured the amount of rent that would be reasonable for the property in question; that he estimated it at a little below $40 a month, between $35 and $40. Mrs. Brandstetter asked Mr. Sheldon if he could pay $40, and he said, “He could.” It was agreed that the payments that Mr. Sheldon made, were to be applied on the rent for the property.

Mr. Sheldon testified that he sold an automobile to Mrs. Brandstetter, and that it was agreed that the purchase price should apply on the payment of the property. Mrs. Brandstetter denied this, and said ■there was nothing stated in the conversation about how the money should be applied; that she applied it on the rent of the garage. She further testified that after the judgment had been taken on the $1,300 note, no request was ever made of Mr. Sheldon to pay it; that it was considered paid, although it was not released on the record.

The appellants contend that the burden is on the defendants to prove that the deed was in fact a deed and not a mortgage. The defendants insist that the burden of proof is on the plaintiffs to prove that the deed is not what it purports to be, but is a mortgage. The appellants cite several cases as to the rule to be followed, that where the grantor is indebted to the grantee, and the indebtedness is not satisfied, a deed absolute on its face is presumed to be a mortgage. Sutphen v. Cushman, 35 Ill. 186; Wallace v. Greenman, 321 Ill. 423; Messick v. Darnall, 281 Ill. App. 375. An examination of these cases discloses that they do so hold, but they do not hold that the burden of proving the plaintiffs’ case shifts to the defendants. A presumption is not evidence in itself, but is a mere legal conclusion from facts proven, which may be rebutted by evidence. Presumptions are never indulged in against established facts. They are indulged in only to supply the place of the facts. As soon as evidence is produced, which is contrary to the presumption which arose before the contrary proof was offered, the presumption vanishes entirely. Oshorne v. Oshorne, 325 Ill. 229. In the case of Tucker v. Powell, 318 Ill. 166, it is stated: “Before such a conclusion is justified, the party asserting that a deed absolute upon its face is in fact a mortgage, must establish his position by clear, satisfactory and convincing proof.” This rule is followed in numerous other cases, both in the Supreme and Appellate Courts. Any presumption that may have existed in favor of the plaintiff at the time of the trial of the case, vanished when the defendant introduced evidence to rebut the presumption.

The trial court had the advantage of hearing and seeing the witnesses testify, and under such circumstances, his decision should be given great weight by an Appellate Court. After reading the evidence, it is our conclusion that the circuit court properly held that the plaintiffs did not establish their case by a preponderance of the evidence, and were not entitled to the relief, as prayed for in their complaint.

The decree of the circuit court is hereby affirmed.

Affirmed.


author: Per Curiam.

text:
    First Trust and Savings Bank of Kankakee, Illinois, Administrator De Bonis Non with Will of Frank Belleau Annexed, and Claude M. Granger, Administrator to Collect of Estate of Mary Belleau, Appellees, v. Arthur N. Powers, Appellant.
    Gen. No. 9,901.

      Heard in this court at the October term, 1944.
    Opinion filed February 8, 1945.
    Rehearing denied April 30, 1945. Released for publication May 1, 1945.
    John A. Mayhew, John H. Beckers, both of Kankakee, and Poppenhusen, Johnston, Thompson & Raymond, of Chicago, for appellant; Floyd E. Thompson, Adolf Loeb, both of Chicago, and John H. Beckers, of Kankakee, of counsel.
    Len H. Small and Samuel H. Shapiro, both of Kankakee, and Werner W. Schroeder, of Chicago, for certain appellee.
   Per Curiam.

The appeal in this case is prosecuted from a decree of the circuit court of Kankakee county entering judgment against appellant in favor of First Trust and Savings Bank of Kankakee, Illinois, as administrator cle bonis non with the will of Frank Belleau annexed, in a proceeding against appellant for accounting as trustee under an alleged contract dated July 1, 1929, between appellant and Frank Belleau in his lifetime. The judgment is for the face amount of the instrument, $25,000, plus interest from its date at 6 per cent per annum, aggregating $45,095.68, less $1,954.15, the amount of a counterclaim filed by appellant, making the net amount of the judgment $43,141.53.

The instrument sued on reads as follows:

“Memorandum of agreement made and entered into this first day of July, A. D. 1929, by and between Frank Belleau of the City of Bradley, County of Kankakee, and State of Illinois, and Arthur N. Powers of the City and County of Kankakee, State of Illinois, hereinafter referred to as parties of the first and second part, respectively:—
“Witnesseth, that,—
“Whereas, said first party desires to deposit with said second party the sum of twenty-five thousand dollars ($25,000.00) for investment, and said second party, as Vice President of the Illinois Light and Power Company, has purchased and will hereafter purchase certain acreage of real property required in connection with the hydro-electric power project of said Power Company bordering upon the Kankakee River and in connection with the purchase of property actually required for said project, said second party has purchased and will be able to purchase additional lands which may later be sold at a good profit above present cost, in which profit, said first party desires to share and said second party is willing that said first party now deposit said sum of twenty-five thousand dollars ($25,000.00) and receive the proportionate share of the profits to be made in connection with the purchases to be made by said second party and the parties hereto have reached an understanding which they desire reduced to writing.
“Now, Therefore, for and in consideration of the premises and the sum of one dollar ($1.00) and other good and valuable considerations, each to the other in hand paid, the receipt of which is hereby mutually acknowledged, and in consideration of the mutual covenants hereinafter set forth, the parties hereto agree and contract with each other as follows:
“1. Said first party has this day paid over to said second party the sum of twenty-five thousand dollars ($25,000.00) which said second party hereby acknowledges having received and which said sum of money is to draw interest at the rate of six per cent per annum from date hereof.
“2. Said second party will continue to purchase property for said hydro-electric power project and in connection therewith will purchase from time to time other lands abutting said lands acquired for such project — which in the opinion of said second party will become valuable and may later be sold as and when said hydro-electric power project shall have been completed at a price in excess of the sum now paid therefor.
“3. - It is understood and agreed by the parties hereto that all such contemplated purchases shall be made by said second party because of the knowledge he has of said project and property values; also by reason of the fact that said party knows the most attractive parcels to be acquired with respect to their later sale and use for home sites and that each purchase will be made at the lowest possible price to be paid therefor.
“4. It is understood and agreed that all such property so purchased by said party will be held and not sold until (a) either said hydro-electric power project has been completed ready for operation, or (b) said property will not be sold until the price obtainable therefor has increased approximately five (5) times its original cost, in either of which events, said second party shall have the sale thereof and shall divide the proportionate profits thereof as hereinafter provided.
“5. It is understood and agreed by and between the parties hereto that as and when such property is ultimately sold, there shall first be paid to said first party the entire sum of money now deposited with said second party, to which shall be added and likewise paid to said first party a sum of money equal to six per cent interest per annum from the date of this agreement to the date of payment; and that after said sums are paid to said first party, the proceeds of any sale then made — to the extent of the proportionate share of funds so deposited hy said first party shall be thereafter divided equally and one-half paid to said first party and one-half be retained by said second party.
“In Witness Whereof, the parties hereto have hereunto set their hands and seals the day and year first above written.
“Arthur N. Powers (Seal)
“Prank Belleau (Seal) ”

From the stipulation between the parties it appears that Frank Belleau and his wife, Mary, executed a joint will on May 3, 1932. Mr. Belleau died on October 28, 1933, and the will, as to his estate, was admitted to probate on January 9, 1934. The surviving widow died on November 5, 1935. It further appears from the briefs of the parties, that she was appointed executrix of the will; that nothing was done in her husband’s estate until appellee bank was appointed administrator de bonis non with the will annexed on July 8, 1939, and that nothing was done towards the administration of Mrs. Belleau’s estate until July 14, 1939, when Claude M. Granger was appointed administrator to collect. The inventory in Frank Belleau’s estate, filed August 2, 1941, shows real estate in Kankakee county, subject to a trust deed dated December 8, 1939, and which, at the time the inventory was filed, had been foreclosed; 18 shares of common stock of the Commonwealth Edison Co., par value $25 per share, valued at $450; cash on hand, $139.50; notes and accounts, none. No mention of the alleged contract sued on is made in the inventory.

Appellant filed a claim in the county court against the estate of Mr. Belleau on October 9, 1941, for $1,954.15, based on an account between them extending from March 24, 1928 to February 1, 1934. From the stipulation between the parties, it appears that during the hearing on the claim, counsel for the administrator advised the court that he had just been informed of the document in controversy, which he wished to file as a counterclaim, and, permission to do so was granted. It further appears from the stipulation that instead of filing a counterclaim, counsel for appellees filed a motion praying for leave to commence legal action on the instrument in the circuit court, which motion was granted; and that the administrator did not file nor introduce the instrument in evidence, nor offer any evidence at the hearing on appellant’s claim, in the county court.

Appellant filed a motion in the circuit court to dismiss the complaint, on the ground that jurisdiction lay exclusively with the county court, and assigns for error the denial of his motion. Section 196, article XVII, of the Probate Act (Ill. Rev. Stat. 1943, ch. 3, par. 348 [Jones Ill. Stats. Ann. 110.445]) provides that a claim or a counterclaim may be filed in favor of the estate and against any claimant named in the claim. Section 199 (par.-351 [Jones Ill. Stats. Ann. 110.448]) provides for judgment over only in cases where the counterclaim is heard in the county court. Sec. 207 (par. 359 [Jones Ill. Stats. Ann. 110.456]) provides that the provisions of art. XVII relating to the jurisdiction of the probate court over claims against estates shall not be construed to exclude the jurisdiction of other courts. Manifestly, a counterclaim is not pending in court until it is filed therein. In the case at bar a counterclaim was not filed in the county court, and no evidence in support of it was ever presented in that court. It is apparent that the proposed counterclaim was never a pending matter in the county court, and that the jurisdiction of that court, if any, never attached. Cases cited by appellant to the effect that the court first obtaining jurisdiction of a matter retains it to the exclusion of all other courts have no application here. A statute providing that a counterclaim may be filed is permissive only and not mandatory. A defendant may file his cross action by way of setoff or counterclaim or he may bring his original suit. (Morton v. Bailey, 1 Scam. (2 Ill.) 213, 214, 215; Quick v. Lemon, 105 Ill. 578, 585; Chicago, D. & V. R. Co. v. Field, 86 Ill. 270, 272, cited in 8 A. L. R. 696.) We are of the opinion that the circuit court did not err in denying the motion to dismiss the complaint for the reason assigned.

The complaint alleges the filing of appellant’s claim against the estate, and that the plaintiff bank, as administrator as aforesaid, “in and about the conduct of its defense of the estate of Frank Belleau against the claim so asserted, discovered the existence of an agreement dated July 1, 1929, between the said Frank Belleau, deceased, and Arthur N. Powers, a true copy of which said agreement is attached hereto marked ‘Exhibit A’ and by reference made a part hereof. That in and by said agreement the said Arthur N. Powers admitted the receipt from the said Frank Belleau of the sum of $25,000 for investment, ’ ’ etc.: and further alleges that the fund is a trust fund, that no part thereof nor any interest thereon had ever been paid by the defendant, and that the plaintiffs are entitled to an accounting, with an ad damnum of $25,000 and interest.

The answer of appellant denies the receipt of the money, the alleged trust relation, and that the plaintiffs are entitled to any accounting. It further denies that he made, executed and delivered the instrument, and denies any consideration therefor, and alleges the cause of action did not accrue within 10 years next before the commencement of the suit, and is barred by the statute of limitations. Amendments to the answer allege the bar of the 5-year statute of limitations, laches, and that Frank Belleau was not in sufficient financial condition to have obtained or secured the sum of $25,000 to advance to appellant as alleged in the complaint, cither at, prior to or after July 1, 1929. By way of counterclaim appellant also alleged the same claim as filed by him in the county court. Replies to the answer and counterclaim and to the amendments to the answer were filed. All the pleadings on both sides were verified.

Two witnesses testified on behalf of appellees. They were the vice president and the assistant cashier of the City National Bank of Kankakee. Their testimony was with respect and to the effect of the genuineness of the signature of appellant to the instrument in controversy. Appellant was the only other witness in the case. He identified the account between him and Mr. Belleau upon which he based his counterclaim.

It also appears from the stipulation of the parties that since the date, of the instrument to the time the suit was filed there were no conveyances to or from appellant individually, or as vice president of the Illinois Light and Power Company, affecting the title to lands one mile distant on each side of the Kankakee River in the vicinity of the proposed power project.

It is urged by appellant that the writing introduced was not the original but a copy, and therefore not admissible in evidence. A photostatic copy of the exhibit will be found on pages 103 to 105 of the record. It is clearly apparent from the photostatic copy that the three typewritten pages were bound with a manuscript cover, the top portion of which is folded down 1% inches over the top margin of the first page of the instrument, all fastened together by the usual means employed for such purpose. On that portion of the manuscript cover which extends down over the first part of the instrument, appears in handwriting the following notation: £ £ Copy of original contract between Frank Belleau and Arthur N. Powers.” This notation is no part of the instrument, which is typewritten. The impression of the type is so clearly reflected by the photostatic copy that it is impossible to determine whether it is an original impression or a carbon impression. The photostatic copy shows a complete instrument signed by the parties under seal.

The best evidence rule is intended to operate to bar the admission of any evidence which by its nature, indicates there is other evidence more direct, positive and conclusive. However, the rule which excludes evidence of copies of documents where the documents themselves are available as proof does not apply to documents and writings which are executed in duplicate or multiplícate form. It is well settled that where a writing is executed in duplicate or multiplícate, each of the parts is the writing which is to be proved because by the act of the parties, each is made as much the legal act as the other. Each part of á document so executed is regarded as the primary evidence of its contents, and the original need not be produced. Thus, the different impressions of a writing produced by placing carbon paper between sheets of paper and writing upon the exposed surface are, according to the prevailing view, duplicate originals, and may be introduced in evidence without accounting for the nonproduction of the original, unless it appears that the parties did not intend such papers to operate as the original evidence of the matters therein contained. (People ex rel. Thompson v. Chicago, R. I. & P. R. Co., 329 Ill. 467, 474, 475; People ex rel. Roche v. Chicago & E. I. Ry. Co., 315 Ill. 424, 427; 20 Am. Jur. (Evidence), p. 380, sec. 427; 32 C. J. S. (Evidence), p. 749, sec. 821; Wigmore on Evidence (2nd Ed.), vol. 2, p. 831, see. 1233 (1). Under the circumstances in this case, the best evidence rule does not operate to exclude the instrument from being admissible in evidence. But there is a reason why the instrument was not admissible in evidence. Appellant’s answer expressly denies delivery of the instrument, and there is no allegation in the complaint and no testimony, in the record that it was ever delivered between the parties,' or that it was ever in the possession of Frank Belleau after it was signed. While possession of an instrument by one of the parties thereto raises a presumption of delivery (Dunn v. Heasley, 375 Ill. 43, 48; White v. Smith, 338 Ill. 23, 27; Dunlop v. Lamb, 182 Ill. 319, 324), there is no such showing here. There is no showing that the instrument was found among the effects of the decedent, or where it was discovered, or in what manner appellees obtained possession of it. Thus, there is an entire lack of any evidence of delivery. It is a fundamental principle of law that delivery of a written contract is indispensable to its binding effect, and it must take effect upon its execution and delivery or not at all. (Jordan v. Davis, 108 Ill. 336, 340, 341; Wilson v. Wilson, 158 Ill. 567, 574.) The evidence of how appellees obtained possession of the instrument was peculiarly within their knowledge and control. The failure to produce it gives rise to the presumption that such evidence, if produced, would be unfavorable to them on the question of delivery. (Belding v. Belding, 358 Ill. 216; Page v. Keeves, 362 Ill. 64.)

Furthermore, although the payment of the money to appellant was denied by his answer under oath, appellees produced no testimony, other than the instrument itself, which tended to show payment of the money by Mr. Belleau to appellant. On the other hand, there is some evidence in the record which has the opposite tendency. The counterclaim of appellant, excluding a payment of court costs in Mr. Belleau’s estate, of $19.15, shows payments by appellant to Mr. Belleau, or for his account, of $6,318.05 from March 24, 1928 to February 20,1933, only the first item of which $10 was paid before the date of the instrument in controversy. $2,500 of the total was for the purchase of the interest of Mr. Belleau and his wife in a farm, the check for which was made payable to both of them, and is credited by receipt of the deed. This leaves $3,618.05 loaned by appellant to Mr. Belleau, of which $1,883.05 was repaid from time to time, leaving a net balance unpaid of $1,935 at the time of Mr. Belleau’s death. Another significant fact is that the joint will of Mr. and Mrs. Belleau executed on May 3, 1932, after reciting that having made such provision as they deemed adequate for their son during their lifetime, and giving him a legacy of $5, made appellant the sole beneficiary of their estates after the death of the survivor of them, by the following provisions. in paragraph 5 thereof; “For a number of years prior to the date of the execution of this, our last will and testament, Arthur N. Powers, residing . . . has been a real friend; aiding and befriending us almost constantly— both in an advisory capacity and financially — during which, he refused to accept any compensation whatever. We had in him a true friend; always loyal, ready and willing to assist us and as evidence of our sincere appreciation of him, it is our mutual desire and we wish and we, each of us, hereby direct — that upon the death of both of us, all of our property then remaining — both real and/or personal — shall become immediately vested in and become the sole property of said Arthur N. Powers,” etc. The sixth paragraph of the will made like provision for appellant’s youngest daughter in case of his prior death. The will is inconsistent with the claim of appellees. The power plant was never built. More than four years elapsed between the date of the alleged contract and the death of Mr. Belleau, and appellant had made no purchase of any property under the alleged agreement. It is not reasonable to assume that, while borrowing money from appellant, Mr. Belleau would leave $25,000 with him for investment in an abandoned project. During the two years that Mrs. Belleau was executrix of her husband’s-will she made no claim, so far as the record shows, that the alleged contract was in force, or that appellant was holding $25,000 or any other amount thereunder belonging to her husband’s estate, and she died leaving the joint will as her will. The inventory filed in Mr. Belleau’s estate on August 2, 1941, almost eight years after his death, makes no mention of the alleged agreement or deposit as an asset. The borrowing of Mr. Belleau from appellant during the period above mentioned and the will of Mr. and Mrs. Belleau tend to show that Mr. Belleau was not in a financial position to make an investment of $25,000, but on the contrary show that appellant assisted him financially both before and after the date of the alleged agreement. Another significant feature of the document is that the date, the name of the party of the first part, and the amount mentioned as the investment are in handwriting, filled in blank spaces left- in the typewritten matter for that purpose. From this it is obvious that Mr. Belleau had nothing to do with the preparation of the instrument. It is equally apparent that $25,000 would not purchase any great quantity of land. The instrument does not provide for any investment by appellant, yet Mr. Belleau’s share of the profits was to be in proportion to his investment, all of which suggests the probability that it was contemplated that others would execute like contracts and make investments in the enterprise. Subsequent events tend to show that the plan was never consummated.

If these were the only defects in the case we would reverse the decree and remand the cause. But, even if these matters were out of the way, there is a fatal illegal consideration in such a contract. While raised only by the petition for rehearing, it is nevertheless the duty of the court to notice it on its own behalf. (Oscanyan v. Arms Co., 103 U. S. 261, 267; Critchfield v. Bermudez Asphalt Paving Co., 174 Ill. 466, 483.) The Illinois Light and Power Company is a public utility. As suggested by appellant’s counsel, it was to the interest of the consumers, and the public generally, as well, as to the stockholders, that the project be located where it could be most efficiently and economically operated, and that only such lands be acquired as were necessary for the economical and efficient operation of the plant, and that such lands be acquired as cheaply as possible. The instrument recites that appellant was vice president of the utility, and as such, had purchased and would thereafter purchase lands in connection with a power project bordering upon the Kankakee river, and in connection with the purchase of property actually required therefor, had purchased and would be able to purchase additional lands which might later be sold at a good profit, in which Mr. Belleau was to share through his investment therein. However innocent the intention of the parties might have been, such a contract would inevitably tend to tempt and influence appellant in the selection of tracts for the power project which ad-' joined tracts that could be acquired and sold at a good profit to himself and Mr. Belleau, even though they were not located so as to be for the most economical and efficient operation of the power project, and even though they were not purchased at the lowest price possible,' and tempt him to buy more land for the project than was necessary.

In Bestor v. Wathen, 60 Ill. 138, certain officers of a railroad company and of a construction company, entered into an agreement with certain landowners to locate a town on their land in consideration of such officers sharing in the sale of town lots. In the course of the opinion (pp. 141-142), the court said: “A court of equity will not enforce a contract resting upon such official delinquency, or even tending to produce it. Such is the character of the contract before us. If we enforce it, we lend the sanction of the court to a class of contracts the inevitable tendency of which is to make the officers of these powerful corporations pervert their trusts to their private gain at the price of injury at once to the stockholders and to the public. . . . In this particular case no wrong may have been done, and yet public policy plainly forbids the sanction of such contracts because of the great temptation they would offer to official faithlessness and corruption.” A court of equity will not lend its aid to enforce or cancel such a contract, but will leave the parties in the position in which they have placed themselves. (Estate of Smythe v. Evans, 209 Ill. 376, 383; Wright v. Cudahy, 168 Ill. 86, 92; Critchfield v. Bermudez Asphalt Paving Co., supra.) A full exposition of the above principles, with numerous citations, is found in Dodson v. McCurnin, 178 Iowa 1211, 160 N. W. 927, L. R. A. 1917 C 1084.

This is not an action for money had and received, as claimed by appellee, but the pleadings, and particularly the stipulation between the parties, show that it is based solely upon the alleged written contract in controversy. The instrument sued on, if ever delivered between the parties, is void as against public policy, and affords no ground for recovery thereunder. Consequently, remanding the cause would serve no good purposes. The decree is therefore reversed.

Decree reversed.