author: Morar, J.

text:
    John ring v. The United States Life and Accident Association.

      Insurance—Life and Accident Companies—Policy—Conditions—Assessments—Levy of—Jurisdiction■—Pleading.

    1. Where the contract in a mutual insurance certificate provides that upon a death the corporation shall make an assessment and pay over the proceeds, not exceeding a certain amount, in an action thereon, the declaration must charge a refusal or failure to make the assessment and allege that if the same had been made it would have resulted in the amount which the plaintiff claims as damages.
    2. The allegations necessary in a pleading is to be determined from the language of the contract on which the rights of the parties depend.
    3. In an action to recover upon an insurance certificate, the same agreeing that the amount named therein should be paid at the death of one of two persons named, to the survivor, this court holds that the demurrer to the declaration was improperly sustained.
    [Opinion filed May 29, 1889.]
    In error to the Circuit Court of Cook County; the Hon. Julius S. Grinnell, Judge, presiding.
    This action was brought to recover on an insurance certificate. The declaration counts on a policy of insurance which is set forth in haee verba. The portions of the certificate and declaration material in this case are as follows:
    “The United States Life and Accident Association of Chicago, Illinois, by this certificate of membership, witnesseth, that in consideration of the statements, representations and agreements made to it in the application for this certificate, and a membership fee in hand paid, and for a semi-annual due of $1.50 on each $1,000 herein named, to be paid within thirty days from date of this certificate, and semi-annually thereafter, and the further payment of an assessment proportioned to the maximum indemnity herein provided for to be made according to the table of graduated assessment ratios given hereon, to be paid at the death or disability of a member, do assure the life of J. and M. Ring for $2,000, in case of death or permanent and total disability for life; or one-fourth the amount for the loss of an arm or leg; or $10 weekly indemnity, in accordance with the terms and conditions of this certificate.
    “ And the said association does hereby promise and agree to pay said claim at its office in Chicago, Illinois, to disabled member, if living; if not, to survivor at the death of either beneficiary, or the said beneficiary’s heirs, executors and adinintrators, etc., within ninety days after acceptance and approval of proofs of death or disability of said party whose life is hereby assured.
    “ This certificate is issued by this association and accepted by the assured upon the following terms and conditions.”
    “Indemnity Fund.— Upon the death or disability of a member the surviving members whose certificates have been in force thirty days from date of notice thereof, will be required to pay an assessment, not to exceed one a month, for each §1,000, for indemnity above named, according to the table of graduated assessment ratios, the proceeds of which shall form the indemnity fund, which shall be used, first, in the pro rata payment of weekly benefits occurring in the month assessed for, and the balance to be paid pro rata among said month’s matured indemnity, other than weekly benefits, but in either case will not exceed amount named in this certificate. Any part of said indemnity fund not consumed in the payment of one month’s matured indemnity will be placed to surplus, which will be distributed pro rata among the beneficiaries, when an assessment is not sufficient to pay one month’s matured indemnity in full; and when said surplus shall accumulate, sufficient in amount to pay one month’s matured indemnity in full, the same will he used, and no assessment made on account of such indemnity.”
    And the plaintiff avers that the J. and M. Ring mentioned in said policy were the plaintiff, John Ring, and Mary Ring, his wife, and that at the time of the making of the said policy and from thence until the death of the said Mary Ring, as hereinafter mentioned, he had an insurable interest in the life of the said Mary Ring, so by the defendant insured as aforesaid.
    And the plaintiff further avers that thereafter, to wit, on the 4th day of May, A. D. 1887, the said Mary Ring departed this life, and that the said plaintiff, John Ring, is the survivor in said policy mentioned, and that forthwith, after the death of the said Mary Ring, the plaintiff therein gave notice thereof to the defendant, giving the name and residence in full, the cause and date of death or disability, and number of certificate, and demanded of the said defendant that it furnish to the plaintiff the association proof blanks upon which to make preliminary proof of the death of said Mary Ring ; but the defendant thereupon refused to furnish such proof blanks, and refused to pay the amount of said policy, on the ground that said certificate or policy of insurance was null and void, and forfeited by reason of the non-payment of assessments thereon.
    And the plaintiff farther avers that within thirty days after the execution of said policy he paid or caused to be paid to said defendant a semi-annual due of $1.50 on each $1,000 therein mentioned, and that semi-annually thereafter he paid a semi-annual due of $1.50 on each $1,000 mentioned in said policy, and from and after the date of said policy paid all assessments made and assessed upon said policy to be paid at the death or disability of a member of said association of which the said defendant gave notice; nevertheless, although the plaintiff has kept and performed all things in the said policy mentioned on his part to be kept and performed, the defendant has not yet paid to the plaintiff the said sum of $2,000 in said policy mentioned or any part thereof, but refuses so to do, wherefore the plaintiff says that he is injured, etc., etc., and brings his suit.
    There was a demurrer to said declaration which was sustained by the court, and plaintiff electing to stand by his declaration, judgment was rendered for defendant, and the case is brought to this court by a writ of error, and sustaining the said demurrer is the error assigned.
    Messrs. Rubens & Mott, for plaintiff in error.
    This positive and unequivocal contract to pay $2,000 can not be affected by the existence or absence of a surplus fund nor by the refusal or consent of defendant in error to levy an assessment; these financial questions will be more worthy of consideration when plaintiff comes to collect his judgment.
    Where the certificate promises to pay a stated sum, and that an assessment shall be made upon all the members for the full amount named in their respective certificates, and the sum so collected, less cost of collection, shall be paid, the beneficiary is entitled to recover the full amount of the certificate, unless it is reduced by some defense, and a court of law has jurisdiction. Suppiger v. Covenant Mutual Benefit Association, 20 Ill. App. 595.
    “Where a policy contains an undertaking on the part of the insurance company to pay the beneficiary therein named $2,000 upon the death of the assured, and not to exceed seventy-five per cent of the assessments collected, the beneficiary may recover on said policy without proving demand on the company to make assessments or showing that assessments have been made, or, if made, the amount collected thereon. Kansas Protective Union v. Whitt, 36 Kas. 760.
    In a New York case defendant issued a certificate by which there was to be paid to' plaintiff, in ninety days after the proof of the death of a member, “ a sum equal to the amount received from a death assessment,” not exceeding an amount named. Held, in an action to recover the amount due, that the promise to pay was not contingent upon the existence of a fund from which to make payment; the requirement that payment was to be made within ninety days implied an obligation to make an assessment to raise the fund; that having power to make it, defendant could not resist payment by omitting to make it; the proof of death operated as a demand for payment, and by implication, a demand that the proper steps be taken to procure the necessary funds. Freeman v. National Benefit Society, 42 Hun, 252.
    In the case at bar the promise also is to pay within ninety days after receipt of proofs of death.
    In the following cases—In re Solidante Mut. Ben. Ass’n, 68 Cal. 392; Ball v. Granite State Mut. Aid Ass’n, 9 Atl. Rep. 103; Newman v. Covenant Mut. Ben. Ass’n, 33 N. W. Rep. 662; Tobin v. Western Mut. Aid Ass’n, Id. 663; Ranisbarger v. Union Mut. Aid Ass’n, Id. 626; Smith v. Covenant Mut. Ben. Ass’n, 24 Fed. Rep. 685; Curtis v. Mut. Ben. Life Co. 48 Conn. 98—the certificates were wholly different from that sued upon here, providing expressly for the payment merely of the amount to be realized by one assessment, and to be paid, in many instances, only after collection. In an action upon such certificates it would be necessary to make the averments claimed' by defendant in error to be necessary in this case; but the doctrines of these cases have no application here-—the contract being essentially different. This is a contract to pay $2,000.
    Messrs. Cratty Bros. & Ashcraft, for defendant in error.
   Morar, J.

It is contended in support of the judgment of the Circuit Court, first, that no action at law can be maintained on the contract set out in the declaration; that the remedy is to be had in equity only. Counsel for defendant in error cite a number of cases in support of this contention, among others, Covenant Mut. Ben. Ass’n v. Scars, 114 Ill. 108. In that case the undertaking of the association as stated in the certificate was, that on the proof of the death of the member, he having complied with the conditions of the certificate, an assessment should be levied upon the surviving members to the amount of the certificate, $5,000, “ which sum so collected on such assessments the association agrees well and truly to pay,” etc. The heirs of the deceased member filed a bill in equity and one of the grounds of defense was that the court had no jurisdiction—that there was an adequate remedy at law. The court said: “ The certificate of membership does not contain any contract to pay to the beneficiaries $5,000, or any sum absolutely, but to levy assessments ratably upon all members holding certificates in force at the death of decedent, for the amount not less than the limit of the certificate, and to pay over the sum so collected on such assessments, less the collection costs. As the corporation is not organized for ‘pecuniary profit,’ has no surplus, and relies entirely upon the mortuary assessments made upon each death for the payment of benefits to the beneficiaries of a decedent, it would be difficult to realize anything by execution. * * *

“ It would seem that a court of equity might properly be resorted to as being capable of affording a more adequate remedy, by directing a specific performance of the contract of the defendant by the levying of the proper assessments.”

That case is undoubtedly an authority that where the contract is not to pay a sum absolutely, but to levy an assessment and pay the proceeds thereof, not exceeding a certain sum, to the beneficiary, equity will give redress in the nature of specific performance of the contract; but it is by no means an authority that an action at law might not be maintained on the same contract, and a judgment recovered. There is a large class of cases arising on contract, where equity will take jurisdiction as furnishing a more direct and complete remedy than the law court, yet where there is no doubt of the jurisdiction at law, if the party elects to pursue his remedy on that side of the court. In suits on certificates of benefit societies, there seems to be some contrariety in the decisions. The contracts of the different corporations differ in form. Some are absolute in the promise to pay a certain sum upon the member’s death. Others provide that upon the death of the member, the company shall only pay over the proceeds of certain assessments, not to exceed a stipulated amount. In this latter class of cases, “It is not entirely agreed what remedy is most proper, if the association denying its liability refuses to levy the promised assessment, for the authorities are not in harmony. * * * The decided preponderance of authority is in favor of the view that an action at law can be maintained against the society for a refusal or neglect to make the assessment.” Bacon, Benefit Societies, Sec. 453, and cases there cited.

The certificate sued on in this case, differs essentially from those in cases cited by counsel for defendant in error. In nearly all said cases the contract is not absolute for the payment of a certain amount, but is that the association shall levy an assessment and pay the proceeds thereof, not exceeding the amount named in the certificate to the beneficiary. Such cases are Smith v. Covenant Mutual Benefit Ass’n, 24 Fed. Rep. 685; Bailey v. Mutual Benefit Ass’n, 71 Iowa, 689; Newman v. Covenant Mut. Ben. Ass’n, 72 Iowa, 242; Burdon v. Mass. Safety Co., 17 N. E. Rep. 874; Egleston v. Association, 5 McCrary, 484; Curtis v. Mutual Benefit Life Company, 48 Conn. 98.

In most of said cases the question decided was the sufficiency of the allegations in the declaration or complaint at law, and if the contract here sued on was similar in its terms to the contracts on which the actions in said cases were brought, the decisions would be authorities in support of defendant in error’s second contention, which is that the demurrer was well sustained, for the reason that the declaration does not aver that an assessment had been made and collected, or the number of members liable to assessment, and the amount that could have been made by an assessment.

Where the contract is that the corporation shall make an assessment, and pay over the proceeds not exceeding a certain amount, it is well settled that the declaration must charge a failure or refusal to make the assessment, and that if such assessment had been made it would have resulted in the amou.nt which plaintiff claims as damages. The New Home Life Assurance Co. v. Hazen, 23 Ill. App. 457; Abe Lincoln Mut. L. & A. Society v. Miller, 23 Ill. App. 341, and cases cited, supra.

The certificate here sued on is not a contract to make an assessment and pay over the proceeds, but an absolute promise and agreement to pay the amount named to the survivor, at the death of either beneficiary, etc., within ninety days after acceptance and approval of proofs of death. Sec. 5th, it is true, shows how the indemnity fund for the payment of losses is to be created and kept up, but it in no manner limits the amount payable under the certificate to what might be collected from one assessment, nor does it provide that an assessment shall be specially levied to pay a loss on any particular certificate. The scheme is to create and keep up a general fund, out of which losses shall be paid as they occur. It follows that good pleading only required the plaintiff to set out the certificate, and allege the death and the performance on his part of the conditions required of him, and that he has sufficiently done in the declaration to which the demurrer was sustained. Protective Union v. Whitt, 36 Kan. 760; Freeman v. National Ben. Society, 42 Hun, 257; Neskern v. North W. E. & L. Ass’n, 30 Minn. 406; Lueder’s Ex’r v. Annuity Co., 12 Fed. Kep. 465; Excelsior Mutual Aid Ass’n v. Riddle, 91 Ind. 84. The allegation necessary in a pleading is to be determined from the language of the contract on which the rights of the parties depend.

In our opinion the declaration is entirely sufficient in alleging a cause of action on the certificate set out, and for the error in sustaining the demurrer thereto the judgment of the Circuit Court must be reversed, and the case remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


source: Caselaw Access Project

author: Garnett, P. J.

license: Public Domain

text:
    Charles G. Smith v. James McCarthy.

      Negligence — Insecure Area Bail—Personal Injuries — Contributory Negligence—Damages—Loss of Time—Special Interrogatories—Evidence —Instructions—Practice.

    1. The general verdict in a given case will control, where the special finding therein can upon any hypothesis be reconciled therewith.
    2. Interference by the trial court with the right of the jury to pass upon the question of negligence, is justifiable only when the verdict is against the weight of the evidence.
    3. An instruction setting forth that damages may be assessed for the plaintiff’s time while being cured, and for a permanent injury, if proved, is not seriously contradictory.
    4. The grounds of the objections to evidence offered by way of impeach, ment should be specific.
    [Opinion filed May 29, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliot Anthony, Judge, presiding.
    Messrs. Edward Maher and A. D. High, for appellant.
    Messrs. J. Lyle King and T. Morrison, for apjiellee.
   Garnett, P. J.

In this action appellee recovered a verdict and judgment for $2,000 against appellant for personal injuries received through the alleged negligence of appellant. At the time of the injury Smith was the owner of a business building in Chicago, having an area adjoining the sidewalk, and a stairway in the area leading to the basement of the premises. Around the outer edge of the area was an iron guard which was secured by stanchions let into the sidewalk. The stanchions at the time in question, and for some time previous, were loose and the rail unsteady. The evidence tends to show that McCarthy was talking to an acquaintance near this guard on October 4, 1886, and on turning round struck the rail, which gave way, and he was precipitated into the area and severely injured. Evidence was also given, tending to prove that Smith’s agent had known of the unsafe condition of the guard long before that date.

In answer to a special interrogatory to the jury, they said that appellee, at the time he fell, was leaning against the rail or post. Counsel for appellant assumes that this finding is contradictory of the general verdict, which finds appellant guilty. If that is true, it must be because leaning against the rail, even unintentionally and but for an instant, is per se and as a matter of law, such negligence on the part of the appellee as to bar his recovery. If the special finding can, upon any hypothesis, be reconciled with the general verdict, the latter will control, and the court will not render judgment against the party who has the general verdict in his favor. Pahlman v. Taylor, 75 Ill. 630.

How, is there any hypothesis upon which the special finding in this case can be reconciled with due care on the part of appellee % He may have been entirely ignorant of the condition of the guard, and he may have struck the rail as he turned round without intending to do so, and he may have been instantaneously, without fault on his part, and without any opportunity to recover his bahmce, thrown into the bottom of the area where he received the injuries complained of, and these facts are all consistent with the special finding and are supported by evidence which the jury had the opportunity to believe and did believe. But aside from this, negligence is a question of fact for the jury, and interference by the court with their right to find on that question can only be justified where the verdict is manifestly against the weight of the evidence. This doctrine is one of the common-places of the law, and citation of authority is superfluous. It is sufficient to say that the record now before ns presents no such case of preponderance of evidence as requires the verdict to be set aside.

One of the instructions for plaintiff told the jury that if they found the defendant guilty, they might assess damages for plaintiff’s loss of time while being cured, if there was such a loss,' and for any permanent injury, if such permanent injury was proved. Appellant insists that there is a contradiction here in the alleged hypothesis that plaintiff was cured on the one hand, and on the other that he was permanently injured. This is manifestly but a verbal criticism which has no merit. The expression of the instruction may not be philologically exact, but we must assume that the trial court performed its duty by discharging from the panel all jurors who were not of sound judgment, and not well informed, and if that duty was performed, there is no reason to apprehend that the jury were misled to the injury of the appellant by this trifling slip of the pen.

There was no direct evidence given by any physician as to the probable duration of the plaintiff’s injuries, but from the facts sworn to by the plaintiff himself, the jury might properly have drawn the inference that he was disabled for'life, so that it can not be said, as appellant claims, that there was no evidence to support the hypothesis of permanent injury.

The objections of the defendant to the evidence offered to impeach the physician who was introduced as a witness for appellant, were too general in their character to be available here. The grounds of the objection should have been specifically pointed out, as they might have been removed.

There is no error in the record, and the judgment is affirmed.

Judgment affirmed.


text:
    Union Mutual Accident Association v. Minna Frohard.

      Insurance—Mutual Accident Companies—Certificate of Membership— Conditions—Construction of—Breach—Death While Hunting—Burden of Proof—Decree.

      1. The act of hunting does not amount to the occupation of hunting.
    2. A classification of hazards of an insurance company confined exclusively to occupations, does not cover isolated acts.
    3. A policy of insurance must be construed liberally in favor of the assured.
    4. The burden of proof is upon a mutual insurance company to show in case of loss that an assessment would not realize the amount at risk. The presumption is to the contrary.
    5. It is proper to require payment in full where an association refuses to levy an assessment upon the untenable ground that it is liable only for a portion of the sum named.
    6. That portion of a decree directing payment by the officers of such company, no officer thereof being a party to the suit, is nugatory and can not be complained of.
    [Opinion filed May 29, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
    Messrs. John M. Hamilton and Charles C. Gilbert, for appellant.
    Messrs. Hamliue & Scott, for appellee.
    The by-laws could not be changed to affect the amount payable in case of death. Northwestern Benefit and Mutual Aid Association v. Wanner, 24 Ill. App. 360; Morrison v. Wisconsin Odd Fellows, etc., 59 Wis. 162; Becker v. Farmers’ Mutual, etc., 48 Mich. 610.
    Engaging in an act which is, or may be at times, engaged in by men of any occupation or profession, is not changing occupation within the meaning of the contract. Administrators of Stone v. United States Casualty Co., 34 N. J. 371. The North American Life Accident Co. v. Burroughs, 69 Pa. St. 43; Miller et al. v. Travelers Insurance Co., 40 N. W. Hep. 839.
    To make effective a provision of the certificate limiting the amount to be paid in case the insured should be killed while engaged in any act classed as more hazardous than that in which he was insured, the association should have made a classification of acts, which it did not do. Payment, as provicied by both hy-Iaws and certificate, was to be according to the rate of the occupation in which the member was engaged. The word act was not used in that connection. The contract will be construed most strongly against the association. North Western Benefit and Mutual Aid Ass’n v. Wanner, supra; Administrators of Stone v. U. S. Casualty Co., supra; District Grand Lodge v. Cohn, 20 Ill. App. 335.
    The printed “ manual ” offered in evidence by appellant, contains the association’s own interpretation of this clause of its contract, which agrees with that contended for by us. The manual may properly be considered in construing the contract. May on Insurance, Sec. 356; Ruse v. The Mutual Life Ins. Co., 24 N. Y. 654; Wheelton v. Hardisty, 92 Eng. C. L. 231; Brooklyn Life Ins. Co. v. Dutcher, 95 U. S. 269.
    It having been stipulated that the number of members liable to contribute was more than sufficient to make up the full amount of $5,000 by payment of one regular assessment, if members would all pay, the court properly decreed that the full sum be paid. Suppiger v. Covenant Mutual Benefit Co., 20 Ill. App. 599.
    In absence of proof as to amount to be realized by one assessment, in view of the failure to levy the assessment, and of defendant’s ability to show what would have been realized from such assessments, and the plaintiff’s inability to do so, it will be presumed that the assessment would have realized full amount. O’Brien v. Home Ben. Society, 46 Hun, 429; Kansas Protective Union v. Whitt, 36 Kan. 761; North Western Benevolent and Mutual Aid Ass’n of Illinois v. Wanner, 24 Ill. App. 357; Elkhart Mutual Aid, etc., Ass’n v. Houghton, 2 N. E. Rep. 763; Lender’s Ex’rs v. Hartford Life and Annuity Co., 12 Fed. Rep. 465; Excelsior Mutual Aid Ass’n v. Riddle, 91 Ind. 84; Neskern v. N. W. Endowment & Legacy Ass’n, 30 Minn. 406; Freeman v. National Benefit Society, 42 Hun, 252; Earnshaw v. Sun Mutual Aid Ass’n (Md.), 12 Atl. Rep. 884.
    The decree against the association for the deficiency was proper. Earnshaw v. Sun Mutual Aid Ass’n, 12 Atl. Rep. 884; Swett v. Citizens Mutual Aid Ass’n, 78 Me. 541; O’Brien v. Home Benefit Society, 46 Hun, 426; Covenant Mutual Benefit Association v. Sears, 114 Ill. 108.
    Association failing to levy an assessment is a wrongdoer, and can not take advantage of its own wrong by asserting that members might not have paid. Freeman v. National Benefit Society, 42 Hun, 252; Birnbaum v. Passenger Conductors, etc., 15 Weekly Notes of Cases (Pa.), 518.
    Joining in the decree with the association “ its proper officers” was not error, but had it been, appellant not being injured thereby, can not take advantage of such error. Hannas v. Hannas, 110 Ill. 53; Brown v. Miner, 21 Ill. App. 60.
   Garnett, P. J.

Appellant is a corporation organized under the law of this State, for the purposes of carrying on the accident insurance business. It insures its members against death or disability from external, violent and accidental causes only.

On the first day of September, 1885, John Frohard was accepted as a member of the association, and on that date a certificate or policy of insurance was issued to him. In this certificate it is provided “ that John Frohard, by occupation, profession or employment, a merchant, residing at Sparta, State of Illinois, is accepted as a member in division ‘A’ of said association, subject to all the requirements, and entitled to all the benefits thereof, as provided in the by-laws, and that said member, in case of death occurring through external, violent and accidental injuries, is entitled to participate in the mortuary or relief fund of the association, not to exceed the amount of 85,000, which sum, or such part thereof as may be collected for that purpose by the payment of one regular assessment of two dollars ($2) for each member of the association liable at the date of the accident, shall, within sixty (60) days after sufficient proofs have been received, be paid to his wife, Minna, if surviving. * * * It is expressly stipulated and agreed that in the event of the member being either fatally injured or otherwise disabled while engaged temporarily or otherwise in any act or occupation classed as more hazardous than the one in which he is accepted, according to the classification given by the rates and by-laws of this association (or if not specifically mentioned, approximating thereto) then an amount shall be paid equal to the rate of the occupation in which the member is engaged when receiving the injury, and such amount shall be payment in full upon the part of the association. * * * It is expressly stipulated and agreed that this certificate is issued and accepted subject to all the provisions, conditions, limitations and exceptions herein contained or referred to.”

On January 28, 1887, the insured went hunting with a gun, and while climbing a fence accidentally shot and killed himself. Proofs of death having been made, and the sixty days having elapsed without payment, suit in equity was brought by the beneficiary named in the policy to compel appellant to levy an assessment of $2 for each member of the association liable at the date of the accident, for the purpose of paying the amount specified in the policy, or such part thereof as might be collected on the assessment. There was also a prayer for general relief. The answer alleged that the insured was killed by the discharge of a gun while hunting, and that hunting was an occupation classed by the association as more hazardous than the one in which the insured was accepted as a member of the association, and that by virtue of its by-laws appellee was only entitled to receive $500, which had been tendered. On the hearing the court directed the levy of the assessment and the payment of the amount thereof to complainant, and in case the sum collected should be less than $5,000, the association and its proper officers were decreed to pay complainant the difference between $5,000 and the amount so realized from the assessment. By stipulation of the parties it appears that the number of members liable to assessment at the date of the accident was more than enough to make $5,000 by one assessment, if the members all paid.

The act of hunting is not equivalent to the occupation of hunting. The case of W. A. Life and Accident Ins. Co. v. Burroughs, 69 Pa. St. 43, furnishes a close analogy on this point. See, also, Stone’s Adm’rs v. U. S. Casualty Co., 34 N. J. 375. The classification of hazards in appellant’s by-laws is confined to occupations. They do not profess to classify acts. Until the act is classed as more hazardous than the occupation in which the insured was accepted as a member, he may engage therein temporarily for exercise or recreation without reducing the amount of risk incurred by the association. The terms are made by the company; the by-laws and certificates are framed in language chosen by itself, and it must be presumed to have made all the exceptions to its liability that it deemed desirable. The court must follow the general rule of construction, and interpret the policy liberally in favor of the insured. May on Ins., Sec. 175; Stone’s Adm’rs v. U. S. Casualty Co., supra.

In this case the association refused to make an assessment as it had undertaken to do by its contract with the deceased^ and it now says that the decree should not have ordered payment of the full sum of $5,000, because it is uncertain what amount can be realized from the assessment. But to whose fault is the uncertainty chargeable ? The appellee could not make the assessment, and appellant wrongfully refused to make it, and fails entirely to make any showing by pleading or proof as to the amount that can be collected from the members liable at the date of the accident. If this contention of appellant is sustained, the value of the policy in question might now be greatly diminished, on account of inability to collect from those liable to assessment when the death happened. If any such change has taken place, it is not just that the loss should fall upon appellee, when appellant alone is to blame. Newman v. Cov. Ben. Ass’n, 40 N. W. Rep. 91, 92.

The authorities say that the burden is on appellant to prove that an assessment would not realize the full sum insured. Until proof on that point is made, the stipulation showing enough members to raise the $5,000, the presumption is that the entire amount of the insurance could be collected. Northwestern B. & M. A. Ass’n v. Warner, 24 Ill. App. 363; Neskern v. N. W. E. & L. Ass’n, 30 Minn. 406; Elkhart Mut. Aid Ass’n v. Houghton, 103 Ind. 286; Kansas Protective Union v. Whitt, 36 Kans. 760; Freeman v. Nat. Ben. Soc., 42 Hun, 252; Lueder’s Ex’rs v. Hartford L. & A. Ins. Co., 12 Fed. Rep. 465; Cov. Mu. Ben. Ass’n v. Hoffman, 110 Ill. 603.

If appellant had diligently proceeded in the execution of its contract by levying an assessment and making all reasonable efforts to collect the same, a different case would be presented; but as it has denied its liability for any sum over $500, and wilfully refuses to perforin its contract, it is only right that it should be required to pay any deficiency arising from failure to collect the assessment.

That part of the decree directing payment of the deficiency by the proper officers of the association is nugatory (no officer thereof being a party to this suit), and is no ground for assignment of error. The decree is affirmed.

Deoree affirmed.


text:
    Charles B. Eggleston v. Asahel Gage.

      Real Prope fy—Tax Deed—Redemption—Injunctions—Title—Cloud— Sec. 211, Reoenue Statute.

    Upon a bill filed to enjoin the taking out of a tax deed of certain real estate and to remove certain documents spread upon the records, as a cloud upon the title thereof, this court holds, that Sec. 211 of the Revenue Statute applies to cases where the land is a second time sold for the taxes of a succeeding year.
    [Opinion filed May 29, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
    Mr. N. M. Jones, for appellant.
    Mr. Augustus N. Gage, for appellee.
   Morar, J.

The bill in this case was filed by appellant to enjoin appellee from taking out a tax deed of certain real estate described, and to remove certain documents which were spread of record in the recorder’s office of Cook county, from the records, as being a cloud upon the title to said land. The principal question relates to appellant’s right to have a certain tax sale certificate which appellee holds, canceled on the ground that there was a redemption from the tax sale.

It appears that the property was sold to appellee on September 21,1880, for the eighth installment of the South Park special assessment, and that the 22d day of September, 1880, it was again sold to John Carne, Jr., for the delinquent general taxes for the year 1879. At the time of such sales the land in question was owned by one Midiólas, the grantor of appellant, and on March 16, 1881, less than six months after said tax sales, said Midiólas, by his attorney, redeemed from the sale to Carne bypaying the amount of the sale plus twenty-five per cent interest thereon, and the fees and costs, and paid to the county clerk the exact amount of the sale to appellant and the clerk’s fees for filing, and received from the clerk a redemption certificate.

Appellant’s contention is, this was a full redemption from the sale to appellant under Sec. 211 of the Bevenue Statute, which provides that “If any purchaser of real estate sold for taxes or special assessments shall suffer the same to be again sold for taxes or special assessment before the expiration of the last day of the second annual sale thereafter, such person shall not be entitled to a deed for such real property until the expiration of a like term from the date of the second sale, during which time the land shall be subject to redemption upon the terms and conditions prescribed in this act; but the person redeeming shall only be required to pay for the use of such first purchaser, the amount paid by him. The second person shall be entitled to the redemption money as provided for in the preceding section.”

It is argued that appellee purchased the land for a special assessment on the 21st of September, and then suffered it to be sold to Carne for the general taxes on the 22d; that Carne' was the second purchaser and was entitled to the redemption money, and that appellant, being the first purchaser, was entitled only to the amount paid by him; that the two sales were made upon different precepts, to different persons, and to satisfy different judgments, and that to say that the second purchaser mentioned in the statute is one who purchased at a subsequent annual sale for taxes, is to interpolate the statute with words which the legislature did not use, and to give it a meaning which was not intended by the law makers.

We should have no hesitation in assenting to the contention of appellant, were it not for the decision of the Supreme Court in the case of Gage v. Parker, 103 Ill. 528. The distinction suggested between this case and that, is that here the sales are made to different persons while there the different sales were all made to the same person. As we understand Gage v. Parker, the distinction is not tenable. We should be very glad to avoid the doctrine of that case, on any very plausible grounds, but it is binding on us, as a court, and we must follow it until the Supreme Court shall see fit to modify or overrule it.

The decree of the Superior Court must therefore be affirmed.

Decree affirmed.


author: Gary, J. Gary, J.

text:
    Michael Reich v. Adelaide M. Berdel.

      Injunctions—Dissolution of—Damages—Attorney's Fees—Separation of Services—Rehearing. .
    1. Damages may be assessed upon a litigant’s liability for attorney’s fees on the dissolution of an injunction obtained against such person, and non-payment thereof on his part is no bar to a recovery.
    2. In such case the damages allowed should only cover services rendered touching such dissolution.

      [Opinion filed May 29, 1889.]
    [Opinion filed October 23, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.
    Messrs. Blum & Blum, for appellant.
    Mr. E. A. Sherburne, for appellee.
   Gary, J.

This is an appeal from a decree awarding damages to the appellee upon the dissolution of an injunction which the appellant had obtained against her.

The award is principally for attorney’s fees, which three attorneys testified were usual and reasonable fees. That she had not paid them was no obstacle to her recovery, as she was liable to pay her attorney a usual and reasonable fee, and for that liability damages may be assessed. Richardson v. Chasen, 59 E. C. L. 756, 10 Ad. & El. (N. S.) 756.

Decree affirmed.

On Petition for Rehearing.

Gary, J.

On the 29th of May last an opinion was filed affirming the decree in this case. On the petition of the appellant a rehearing was granted upon the suggestion that the damages allowed upon the dissolution of the injunction covered the expense of defending the whole case.

When the injunction was dissolved the appellant voluntarily dismissed his bill. The appellee had filed a plea and answer, and her solicitor in preparing that plea and answer, and in obtaining such information in regard to the facts as enabled him to prepare them, had necessarily done much that would have been useful for the defense of the suit upon its merits, if the appellant had prosecuted it. All the services which were recited in the evidence, except the notice of, and attendance upon the motion to dissolve the injunction, and all the expenses of exhibits, were applicable to the defense upon the merits.

The injunction was hut in anticipation that the final relief might be complete if the suit was successful. The evidence does not separate the services and show the usual price and value of such as were applicable to the dissolution of the injunction only. The decree is reversed and the cause remanded. Gerard v. Gateau, 15 Ill. App. 520.

Reversed and remanded.


author: Morar, J. Gary, J.,

text:
    _ Nettie Parke v. L. C. Welch and Seymour C. Welch.

      Ufe Insurance—Certificate—Suit on—Beneficiaries—“Affianced Wife ” —Interpleader—Constitution and, By-Laws—Class Entitled to Benefit Earned, Therein—Failure to Designate Person Belonging Thereto.

    1. The naming of an “ affianced wife ” as the beneficiary in a certificate of a mutual benefit association, she remaining such until the death of the assured, does not operate to make her a dependent within the rules thereof.
    2. The designation as a beneficiary of a person not included within the c'ass to be benefited under the rules of such association, does not relieve it from payment to the proper person or persons of the amount involved.
    [Opinion filed May 29, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
    This case arises on a bill of interpleader filed by the Supreme Council of the Royal Arcanum, a corporation organized and existing under and by virtue of the laws of the State of Massachusetts, against appellant and appellees, who were respectively claiming the sum of $3,000 which was due from said Royal Arcanum upon a benefit certificate issued to W. D. Welch. Said W. D. Welch was a member of a subordinate council of said Royal Arcanum, located at Chicago, and on the 22d of April he surrendered a certificate which had previously been issued to him, payable to his mother, and procured a new one to be issued to him, “ payable to Mrs. Nettie Parke, affianced wife,” which he delivered to appellant. On November 20, 1887, said W. D. Welch died at Waukegan, Illinois, in good standing, and satisfactory proofs of his death were made as required by the rules of the order.
    Appellees are the brothers of said W D. Welch, deceased, and they protested against the payment of the fund due under said certificate to appellant, as they claimed she was not entitled to the same under the constitution and laws of said corporation. The portions of the by-laws of said Royal Arcanum that relate to this matter of benefit funds and certificates are Sec. 2, Law III, of said order, as follows:
    First. Each applicant shall enter upon his application the name or names and relationship or 'dependence of the An embers of his family or those dependent upon him to whom he desires liis benefit paid, and the same shall be entered in the benefit certificate according to said direction.
    Second. A benefit may be made payable to the following ■ classes of persons: Class 1st. To a member’s wife, children, grandchildren, father, mother, grandparents, brother or sister. In every one of which cases no proof of dependency shall be required before the issuing of the benefit certificate. Class 2d. To any person who is dependent upon the member for maintenance (for food, clothing, lodging or education), in which case the written evidence of the dependency, within the requirements of the laws of the order, must be furnished to the satisfaction of the Supreme Council before the benefit certificate can be issued.
    Third. No entry shall be made in any application or benefit certificate or otherwise permitting the designation by, or ascertainment by reference to, any will of the person or persons, trustees or beneficiaries to whom any benefit shall be payable, or the amount or share of any beneficiary. No will shall be permitted to control the appointment or distribution of, or the rights of any person to any benefits payable by this order.

      Fourth. A benefit certificate can not be made payable to a creditor, nor be held in whole or in part, nor assigned to secure any debt which may be owing by the member. Any assignment of a benefit certificate by a member or beneficiary shall be void.
    Fifth. Ho benefit shall be made payable to any person or persons permanently residing outside the limits of the United States or Dominion of Canada.
    Sixth. JNo benefit shall be payable to a person or persons of the second class mentioned in Par. 2 of this section, unless the dependency-therein required to be shown, exists at the,time of the member’s death, in which case proof of such dependency at the member’s death shall be furnished in writing, to the satisfaction of the Supreme Eegent, before payment of the benefit shall be made. If at the time of the death of such member, the dependency shall have ceased, then the benefit shall be payable to the persons mentioned in class 1st, paragraph 2, of this section, if living, in the order of precedence as therein enumerated. If no one of said class shall be living at the death of the member, the benefit shall revert to the Widows’ and Orphans’ Benefit Fund.
    Section 3 of said Law III provides “ that a member may, at any time when in good standing, surrender his benefit certificate, and a new certificate shall thereafter be issued, payable to such beneficiary or beneficiaries as such member may direct in accordance with the laws of this order, upon the payment of fifty cents. Said surrender and direction must be made in writing, signed by the member, and forwarded under seal of the subordinate council with the benefit certificate to the Supreme Secretary; parol evidence of intention or desire to change the beneficiary must be disregarded.”
    “The issuing of such new certificate shall cancel and render null and void any and all previous certificates issued to such member.”
    It was stipulated between the parties that certain designated chapters of the public laws of Massachusetts' relating to the organization of benefit societies should be considered in evidence, and was further stipulated that L. C. Welch and Seymour C. Welch were the brothers, next of kin and only heirs at law of said W. D. Welch, deceased, and that Hettie Parke was the affianced wife of said W. D. Welch at the time said certificate was issued, and that she was not actually dependent upon him, nor represented so to be within class second of Law III of the constitution and laws of the Boyal Arcanum, either at the time the certificate -was issued, or at the time of his death, otherwise than that he gave her occasional presents of clothing, jewelry, money, etc., up to the time of his death; and that said certificate was delivered to said W. D. Welch in the State of Illinois, and by him delivered to said Hettie Parke in the State of Illinois.
    The court decreed the fund to appellees, and from such decree this appeal is prosecuted.
    Messrs. Case, Judsor, Hogar & Bradley, for appellant.
    Messrs. Abbott & Baker, for appellees.
   Morar, J.

The contention of appellant is that she is the

person named in the certificate, as entitled to the fund; that the corporation having made the contract with the member, and it being executed on the one part, it would be estopped to deny its liability thereon (Benefit Associations v. Blue, 120 Ill. 121), and if not estopped, the corporation alone would have the right to set up its non-liability, and it having admitted liability by bringing the money into court, it should be paid to the person for whose benefit the certificate was issued. Johnson et al. v. Van Epps, 110 Ill. 557.

The doctrine which is asserted as controlling the case, finds its most apt illustration in Knights of Honor v. Watson, 15 Atl. Rep. 125, recently decided by the Supreme Court of Hew Hampshire. There the constitution of the order authorized the issuing of a certificate to a member payable “to some member or members of his family or person or persons dependent on him, as he may direct, or designate by name to be paid as provided by general law.”

A part of a benefit was made payable to a person not of the family and not dependent upon the member, and the other beneficiaries who were members of the family of the deceased objected to the payment of any of the sum to the person named. The corporation paid the money into court, and compelled the claimants of the fund to interplead, and the court held that if the direction to pay to the person who -was neither one of the family nor dependent upon the member, was invalid, the benefit to that extent would lapse, if the corporation so elected, for want of a valid exercise of the power of direction; but that the question as :to such validity could be raised by no one but the corporation, and it not having raised the question, but signified a willingness to have it paid to the party named, and no other’ person having any right to object or interest in the money, it should be paid to said person. The features which distinguish this case from Knights of Honor v. Watson, and from the cases decided by our Supreme Court are to be found in the constitution and laws of the Boyal Arcanum, and in the construction which has been given by the Massachusetts Supreme Court to the statute under which said corporation is organized.

In American Legion of Honor v. Perry, 140 Mass. 580, that court said: “ The statute under which the plaintiff corporation is organized, gives it authority to provide for the widow, orphans or other persons dependent upon deceased members, and further provides that such fund shall not be liable to attachment. _ The classes of persons to be benefited are designated, and the corporation has no authority to create a fund for other persons than of the classes named. The corporation has power to raise a fund payable to one of the classes named in the statute, to set it apart to await the death of the member, and then to pay it over to the person or persons of the class named in the statute selected and appointed by the member during his lifetime, and, if no one is so selected, it is still payable to one of the classes named,”

The object of the organization of the Boyal Arcanum, so far as it had regard to a benefit fund, is stated in the bill to be, “ To establish a widows and orphans’ benefit fund, from which, on the satisfactory evidence of the death of a member of the order who has complied with all its lawful requirements, a sum not exceeding $3,000 shall be paid to his family, or to those dependent upon him as he may direct.”

According to the constitution of the order which is in the record, every member of the order is required to pay assessments to the widows and orphans’ benefit fund, rated according to the member’s age, and it is provided in Sec. 2, Law I, that “ there shall be paid on the death of every member who is in good standing and not under suspension for any cause at the time of his decease, the following amounts: For a full rate member, $3,000; for a half rate member $1,500.”

Section 2, Law III, set out in the statement of facts, directs the manner in which a member shall designate the particular person of his family or those dependent upon him to whom he desires his benefit paid, and if it is to be made payable to one of the dependent class, requires that written evidence of the dependency (for food, clothing, lodging or education) shall be furnished to the council before the certificate shall be issued. The sixth clause of said Sec. 2 forbids payment to any person of the second or dependent class named in a certificate unless the dependency required exists at the time of the member’s death, and “ if at the time of the death of such member the dependency shall have ceased, then the benefit shall be payable to the persons mentioned in ¿lass 1st,” if living, in the order of precedence as enumerated.

Consideration of the various sections of the constitution, in connection with the statute of Massachusetts as construed, leads to the conclusion that the designation of a person, in the benefit certificate, who does not belong to one of the classes named, does not operate to relieve the corporation from payment of the benefit, if persons are in existence belonging to the classes for whom the fund is established. The designation may be invalid, but the benefit will not lapse. Naming a person outside any class, is the same in legal effect as selecting no particular person, and in such case, as we have seen, the fund is payable to one of the classes named. The person named is not defeated by the doctrine of ultra vires because the fund is by the law payable at all events if persons belonging to the class who may take are in existence, and the doctrine of estoppel can not be invoked against the corporation, for it admits its liability and pays over the fund, and it must go to the persons of the class for whom it was created for the reason that it was not in the power of the member to divert it to a person not within the classes named. Rockhold v. Canton, Mass., Mut. Ben Ass’n, 19 N. Y. Rep. 710; American Legion of Honor v. Perry, supra; Elsey v. Odd Fellows Mutual Relief Ass’n, 142 Mass. 224; Daniels v. Pratt, 143 Mass. 216.

It is suggested that the naming of appellant in the benefit certificate was a practical determination by the corporation that an affianced wife was a dependent, and that, as she remained his affianced wife till death, the benefit is payable to her under the rules of the association. This is but an attempt to apply the doctrine of estoppel. But the proposition is not true in law, for the Massachusetts court has decided that “ the mere engagement to marry imposed no obligation upon him, except to carry out his contract with her. Their mutual promise to marry did not in any sense, by itself, make her dependent upon him,” (American Legion v. Perry, supra) nor true in fact, for the parties have stipulated that, at the time said certificate was issued, she was not dependent upon him, nor represented so to be.

In determining the rights of parties under certificates in these benefit associations, the policy of the State in which the association is organized must be kept in view, and regard must be had to the limitations placed by the constitution of the society and the statute upon the power of members to designate beneficiaries. “Where the power is special it must be exercised within the restrictions imposed by the terms of its creation, which are contained in the charter and by-laws, as modified by statute.” Bacon, Benefit Societies, Sec. 244.

Where the beneficiaries are prescribed by law, it is an evasion of its policy and a violation of its letter to say that where a member has named a person not within the class to be benefited, and the corporation has issued the certificate to such person, such acts shall deprive the proper person or class of persons of all right to or interest in the fund. As said by the Supreme Court of Kentucky, “ where the charter prescribes who shall be the beneficiaries of the membership after the death of the member, it is not in the power of the company or of the member, or of both, to alter the rights of those who by the charter are declared to be the beneficiaries, except in the mode and to the extent therein indicated.”

However apt and just the rule in Knights of Honor v. Watson may be, therefore, in a case where the fund should lapse, and no persons have any interest in it, and where it, if not paid to the person named in the certificate, would not be paid at all, we are of opinion that such rule has no proper application in the case now under consideration.

The decree of the Superior Court is right, and will, therefore, be affirmed.

Decree affirmed.

Gary, J.,

dissenting. My view of this case is that the appellant is entitled to the money in controversy.

The Supreme Council of the Koyal Arcanum having paid the money into court, to be paid to one or the other of these parties, no question as to the obligation of the council to pay it is in the case. Knights v. Watson, 15 Atl. R. 125.

On the face of the certificate it is payable to the appellant. Her legal title can only be avoided by showing a superior right in the appellees. If it were now a question whether the certificate was properly issued, payable to her, it would be a strong argument in her favor, that the council, having given a practical construction to their own law, by issuing such certificate payable to her, upon the hypothesis that an “affianced wife” was properly included in class 2, without any further proof of dependency than what was implied from that relation, and that relation not having ceased at the time of the death of W. D. Welch, and he having paid all his dues and assessments up to the time of his death, upon the promise of the council to pay her, the council is estopped to deny that the state of facts upon which they issued the certificate is sufficient to entitle her to require them to perform the promise on the faith of which they receive such dues. Benefit Ass’n v. Blue, 120 Ill. 121. She was the object of the solicitude of W. D. Welch.

The lot of most women, in most of the relations of life is a dependent one. The future of a woman engaged to be married depends very greatly upon the man to whom she is affianced. It is doing no violence to the language which described class 2, to include within it, not only those to whom the member at the time the certificate is issued is furnishing food, clothing, lodging or education, but also those with whom he has such existing relations, that acting in good faith, he thereafter will so furnish them.

In the case of Supreme Council v. Berry, 140 Mass. 580, the council was no party to the designation of the lady as the beneficiary. The council there was bound to pay somebody upon a certificate, as to the validity of which there was no question, and had had no part in the selection of any individual as beneficiary. It is true that the court there held a by-law of the council, under which she was entitled to take, invalid, as contravening their statute, under which the council was organized. In a proper case, it would be a serious question whether the rights of citizens of Illinois, under contracts made in Illinois, to be performed in Illinois, are to be affected by statutory provisions of which they are ignorant, in another State.


text:
    James M. Hill v. Alexander H. Lowden.

      Master and Servant—Relation—Existence of—Services Rendered—Recovery for—Written Contract—Construction—Custom—Evidence.

    1. Each and every part of a written contract should, when possible, have assigned to it some meaning.

      2. The employer of a superintendent of construction under a written contract is not liable for the wages of a third person employed by the latter to perform the work in question, in the absence of knowledge of such employment, and of evidence of a custom authorizing the employment of a second general superintendent in such case.
    [Opinion filed May 29, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Mr. G. Frank White, for appellant.
    Messrs. Abner Smith and J. M. Cleaver, for appellee.
   Garnett, P. J.

Appellee brought an action of assumpsit against appellant to recover the balance alleged to be due him for services as superintendent of certain buildings of appellant, while they were in the course of erection on Oakwood boulevard, in Cook county. Appellee was employed by H. P. Smith at the agreed sum of $1,000 for his entire services as such superintendent. Smith’s only authority to employ him was derived from the following contract:

“ This agreement made this 20tli day of May, 1886, between H. P. Smith and James M. Hill, witnesseth, that said Smith agrees to build for said Hill four houses on Oakwood boulevard, on lots 7 and 10, in block 3, Cleaverville addition, town of Hyde Park, Cook county, Illinois, like the two brown stone houses on Groveland avenue, in Chicago, Illinois, owned by A. H. Lowden, and known as 32 and 34 in said avenue, and have same completed on or before October 1, 1886. Two of said houses to have brown stone fronts like said Lowden’s houses, and two of them to have pressed brick fronts with brown stone trimmings; said Smith to attend to purchasing of all the materials to be used in the construction of said houses, and the employment of mechanics to do the work, and to attend generally to all matters pertaining to the ereo tion of said houses, giving the time and attention necessary t< do the work to the best advantage, and for the best price pos sible, using his best judgment and exercising his best endeavor to purchase all material at the lowest figure, and so generally to conduct said business as to build in the best manner and at the lowest price possible for the benefit of said Hill. All contracts to be made by said Smith, and all bills approved by him are to be paid by said Hill as they become due, said Smith to have the general superintendence and management of the whole business, for which service said Hill agrees to pay the said Smith the sum of $2,000 from time to time as the work progresses.
James M. Hill,
H. P. Smith.”

At the trial, evidence was given tending' to prove that Smith gave but little attention to the buildings, and that Hill, when he saw Lowden engaged there, supposed he was put there by Smith in his place. Lowden’s name was on Smith’s pay roll, and Hill’s checks were drawn to pay the amount thereof, Hill being sick much of the time and most of his checks being drawn while he was confined to his bed. There was no evidence that Hill knew anything of Lowden’s name being on the pay roll until the buildings were nearly completed, nor was there any evidence that he knew Lowden’s name was on any pay roll which he paid, until he discovered that he had overpaid Smith for superintendence. Lowden made out his bill against Smith personally for the balance of $f00, which he seeks to recover in this action, not describing him in the bill as agent or superintendent.

The $300 that was paid to Lowden, he admits was received from Lamb, the timekeeper of Smith. Hill testified, without contradiction, that when the buildings were finished Smith and Lowden came to the house, and wanted him to pay Smith so he could pay Lowden. Evidence was also given tending to show that Lowden did not give the buildings proper attention as superintendent. The court instructed the jury to find a verdict for plaintiff, which we think was error. The court assumed that by the terms of the written agreement between Hill and Smith, the latter could employ such assistance as he chose, and Hill was not only conclusively bound by the contracts made by Smith, but that he could not deny that such con- ■ tracts had been fulfilled by the persons so employed. By the terms of the contract Smith agreed to be the general superintendent, and in the absence of evidence of a custom authorizing the employment of another general superintendent, Hill can not be charged a second time for services which now appear to have been due from Smith personally. Hill testified that Smith had the reputation of being a tremendous hand to build buildings of that kind cheap and well, and that he knew Smith had built a good many buildings. Appellee contends that the only specific duties which the contract imposed on Smith were to purchase the material, employ mechanics, and make all contracts, and that the words “attend generally to all matters pertaining to the erection of said house,” and “to have the general superintendence and management of the whole business,” mean practically nothing. This is in conflict with the general rule of construction which requires that each and every part of the contract shall be given a meaning when that can be reasonably done.

“Every clause and even every word should, when possible, have assigned to it some meaning. It is not allowable to presume, or to concede when avoidable, that the parties in a solemn transaction have employed language idly.” Bishop on Contracts, Sec. 384.

It is true that Smith was authorized to make all contracts, and in fact did make a contract with Lowden. But to say that Hill and Smith understood the authority to be, to bind Hill to any contract, for anything, in connection with the work described in the instrument, would be wholly unreasonable. If that was the intention, then the person employed to purchase materials and make contracts might have employed a third person as his substitute to purchase the materials, employ mechanics and make all other contracts. It is no more reasonable that the person originally employed to superintend should employ a substitute as superintendent. As this record now reads, neither was admissible. Variation from the contract could only be by consent of both parties. Hill could not consent to anything of which he was ignorant. If he, without objection, saw Lowden performing the duties of superintendent, the jury might be justified in finding that he had impliedly consented that Smith should fulfill his contract by putting Lowden in his place; but unless he was in some way informed that Lowden was employed as superintendent, at his expense, or some such custom as we have referred to has intervened and modified the terms of the written contract,. Hill can not be charged with the expense of two general superintendents.

For the error specified the judgment is reversed and the cause remanded.

Reversed and remolded.

Moran, J., dissents from the construction given to the contract.


author: Gaby, J.

text:
    Adam L. Amberg v. Charles C. Philbrick.

      Bailments—Trover—Chattels—Conversion—Master and Servant—Servant’s Wrongful Act—Master’s Liability.

    An involuntary, gratuitous bailee is not liable for the refusal of his servant to deliver the goods of another when he has not been informed that application has been made therefor, and has given no orders touching the same.
    [Opinion filed May 29, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.
    Messrs. Hoyne, Follansbee & O’Connor, for appellant.
    Mr. Charles T. Strattan, for appellee.
   Gaby, J.

This was an action of trover for chattels belonging to the appellee, of which the appellant had such possession as resulted from putting a man in charge of the premises in which the appellee had placed them. The premises had been in the possession of a company in which the appellee had some interest, so that he could store the chattels there without expense to him.

The appellant took possession under a chattel mortgage against the company. Some weeks after the appellant took possession, his man in charge seiit a postal card to the appellee to take his chattels away, but when the appellee went for them, the man refused to .deliver them without a receipt “ in good order.”

The appellee never applied to the appellant for the chattels, and it did not appear that the appellant had ever been informed that the appellee ever applied for his property. On these facts it was held on the trial, both by rulings upon the admission of evidence and upon instructions, that the act of the man in charge was conclusively the act of the appellant, and his refusal a conversion of the chattels by the appellant.

While a demand upon, and a refusal by, the servant of a pawnbroker or common carrier, within the scope of whose employment it is to determine whether a delivery shall be made, may be evidence of a conversion (Jones v. Hart, 2 Salk. 441; Cass v. N. Y. Cent. R. R., 1 E. D. Smith, 522), yet in the case of a pledge, such a refusal by the general agent, but without being directed by his principal, is not. Pothonier v. Dawson, 1 Holt’s N. P. C. 383; 3 E. C. L. 154. This case is cited as authority in 2 Greenl, on Ev. Sec. 645; 2 Sel. N. P. 1395, and 1 Arch. N. P. 604, and nowhere denied. “Cojnmums opinio is of good authority in law.” Co. Litt. 186 A; Broom’s Leg. Max. 140.

A banker, receiving a special deposit, is not liable for a conversion of the subject of the deposit by his servant, unless he participated in it, or was guilty of negligence in retaining the servant. Sturges v. Keith, 57 Ill. 451.

As the appellant was an involuntary as well as gratuitous bailee, to the extent that he was a bailee at all, no more stringent rule should be applied to him than to a voluntary bailee. He ought to be allowed to show that the refusal by the man in charge was not by his authority, or rather, he ought not to be required to show anything, unless there was aprima facie ease that it was by his authority.

The judgment must be reversed and the cause remanded.

Reversed and rema/ndsd.


text:
    Edward J. Scanlan et al. v. Timothy H. Scanlan.

      Trust Deeds—Foreclosure—Sale—Equity of Redemption—Dower— Release of—Laches—Evidence.

    1. A formal deed is not required for the release of an equity of redemption when the mortgage is made in the form of an absolute conveyance.
    2. If in such case subsequent transactions between the mortgagor and mortgagee make it inequitable to allow redemption, equity will refuse its aid.
    3. The fact that a wife received no consideration for a release of her right to dower can not affect the validity thereof.
    4. Upon a bill brought to redeem certain real estate, and a cross-bill praying that a dower right might be set aside therein, this court holds, that the deceased mortgagor, together with his wife, in his lifetime, sold all interest possessed by them in the land in question, and that the consideration therefor was duly paid.
    [Opinion filed May 29, 1889.]
    In error to the Circuit Court of Cook County; the Hon. Lorin 0. Collins, Judge, presiding.
    Mr. James E. Monroe, for plaintiff in error.
    Messrs. Smith & Pence and T. J. Walsh, for defendant in error.
   Garnett, P. J.

In his lifetime Jeremiah Scanlan was the owrier in fee of the real estate in controversy in this case, known as No. 424 State street, in Chicago, subject to three trust deeds thereon to L. C. P. Freer, which secured separate loans made to Jeremiah in the years 1874, 1875 and 1876. Default having been made in the payment of interest due on the loans, Freer advertised and sold the premises to Nathan M. Freer, his son, in pursuance of the power given by one of the trust deeds, and conveyed the same to Nathan by trustee’s deed, dated March 4, 1879. Nathan did not claim that he acquired the absolute title to the property, free from the equity of redemption, and, in fact, the record satisfactorily leads to the conclusion that after the sale the relation of mortgagor and mortgagee, between Jeremiah and the owner of the indebtedness, continued.

For the purpose of saving the property, Jeremiah arranged with his brother, Timothy H. Scanlan, to advance the amount necessary to make the redemption and take the title as security. To carry out this plan Timothy paid to the holder of the indebtedness a part thereof in cash and secured the rest which he has since paid. At the same time Nathan conveyed the property to Timothy by quit-claim deed, dated May 1, 1879, and Jeremiah and his wife by quit-claim deed, dated May 2,1879, also conveyed the same to Timothy, but no consideration was received by them for the deed.

In the fall of 18S0 Jeremiah Scanlan died, leaving him surviving his widow, Ann Scanlan, and Nellie Scanlan, then in her nineteenth year, and Edward J. Scanlan, then in his seventeenth year, his heirs at law. This litigation arises out of ' a bill filed July 14, 1887, by Edward and Nellie against Timothy and Ann Scanlan, in which they allege that the relation of mortgagor and mortgagee, created as aforesaid, still continues, and pray that they be allowed to redeem.

Ann Scanlan filed a cross-bill praying that her dower right be set off to her. To the bill and cross-bill Timothy set up as a defense that, in October, 1879, he agreed upon a settlement with his brother, and that they fixed upon the value of the property, and upon the several amounts he had advanced as loans to Jeremiah, and for taxes, assessments and repairs, and that he then paid the latter the difference ($2,100) between the agreed value of the property and the amount of the advances. We are of opinion that the evidence fairly proves that in October, 1879, a settlement was agreed upon between these brothers, by which Timothy was to pay Jeremiah the sum of $2,100 for whatever interest in the property remained in the latter and his wife; that he, Jeremiah, then signed a receipt in full for all claims against the property in consideration of the sum of $2,100, and that his wife, being unable to write, signed her name by making her mark thereto; that at the time she so made her mark a draft for $2,100 was handed to her by Timothy’s agent, and the same was passed over by her to her husband, who in regular course collected the amount therefor.

Mrs. Scanlan denies having signed the receipt, but Nathan M. Freer testifies that he prepared such a receipt in the presence of the two brothers, one of whom (but he does not remember which) took it and said they were going to get Mrs. Scanlan to sign it. Marcus I. Stearns, agent of Timothy, testified that in the fall of 1879, he took a paper to Mrs. Scanlan to be signed and that she did sign it in his presence. He thinks the same paper was signed by her husband, and when she signed it he handed to her a piece of New York exchange in consideration thereof. There is no pretense that any other paper was signed by either of them in the fall of 1879 at the request of Stearns. If it was not the receipt in question which she signed, what was it? The paper itself is lost, having probably been destroyed by fire, but the draft for $2,100, dated October 18, 1879, indorsed by Jeremiah Scanlan, was produced in evidence. Soon after the making of the receipt Timothy took exclusive possession of the building on the premises, expelling therefrom his brother and family. He has since at all times maintained his hostile claim, and though Mrs. Scanlan must be presumed to have known she had a right of dower in the equity of redemption, unless she had released it, no step was taken by her to assert her supposed interest until November 16, 1887, when she filed her cross-bill in this case.

If the facts and circumstances established by the positive testimony, tending to show the release, were in need of support, we think the long delay and acquiescence in Timothy’s adverse assertion of ownership, go far toward inducing the conviction that the settlement and release were made as claimed.

A formal deed is not required for the release of an equity of redemption, when the mortgage is made in the form of an absolute conveyance. Seymour v. Mackey, 126 Ill. 341.

In such cases if subsequent transactions between the mortgagor and mortgagee make it inequitable to allow redemption, equity will refuse its aid. West v. Reid, 55 Ill. 242.

The consideration for the release appears to have been all received by Jeremiah, but that can make no difference as to the effect of the transaction. Payment of a consideration to a wife for a release of her dower by joining with her husband in a conveyance, may sometimes happen, though it is very unusual. But making the validity of her release depend on the receipt of a consideration by her personally would be an unfortunate doctrine.

The statute, Chap. 68, has removed the disability of the wife, except in the instances there specified, and no reason is perceived why she may not part with her property rights for a consideration paid to her husband alone. The charge that the consideration for the release was inadequate is not sustained. The evidence was ample to warrant the court in finding that there was no such disparity between the value of the equity of redemption and the amount paid therefor as to require the interference of equity in behalf of the mortgagor or his heirs. The decree is affirmed.

Decree affirmed.


author: Moran, J. Gary, J".,

text:
    John Trotter v. City of Chicago.

      Municipal Corporations — Ordinances—Parades and Processions — ‘‘ Salvation Army ”—Superintendent of Police—Discretion of.

    1. The city council of the city of Chicago has no power to regulate or prohibit parades or processions as such.
    2. Parades or processions through streets are not nuisances.
    3. A city council having the power to prohibit or regulate, must exercise the same by ordinance, and can not delegate it to the discretion of the chief of police.
    4. The right of the “ Salvation Army” to parade is equal to that of any other organization.
    5. An ordinance which operates partially is void.
    [Opinion filed May 29, 1889.]
    Appeal from the Criminal Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.
    Messrs. MoMhrdy & Job, for appellant.
    Mr. C. A. Knight, for appellee.
   Moran, J.

Appellant was arrested and fined on a charge of “ parading and marching in procession upon the public street without having first obtained a permit.” The proof was that appellant with fourteen other persons marched through the streets with various binds of musical instruments, drums, cymbals, banners, flags and regalia; that those composing said procession were members of the “ Salvation Army,” a religious body, that marches to attract others to its place of worship, and that neither appellant nor his companions had a license or permit to parade from the superintendent of police.

The ordinance under which appellant was prosecuted is as follows: Section 1. That no parades or processions shall he allowed upon the streets of the city, nor shall any open air public meeting be held upon any ground abutting upon any street or avenue of the city, until a permit therefor shall first be obtained from the police department, under a penalty of not less than 825 nor more than 8100. Such permit shall be issued without fee by the superintendent of police, and shall, in the case of parades or processions, specify the route to be followed upon the streets of the city.

The only clauses of the general incorporation act which, it is contended, authorize the city council to enact such an ordinance, are the provisions conferring powers to regulate the use of the streets and public grounds, and are as follows: “To regulate and prohibit the exhibition or carrying of banners, placards, advertisements or hand-bills in the streets or public grounds or upon the sidewalks.”

“ To declare what shall be a nuisance and to abate the same; and to impose'a fine upon parties who may create, continue or suffer nuisances to exist.”

“ To prevent and suppress riots, routs, affrays, noises, disturbances, disorderly assemblies in any public or private place.”

“ To prevent and regulate the rolling of hoops, playing of ball, flying of kites, or any other amusement or practice having a tendency to annoy persons passing in the streets or on the sidewalk, or to frighten teams and horses.”

“It is a general and undisputed proposition of law, that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express

words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation—not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power denied.” 1 Dillon, Mun. Cor., Sec. 89.

We are unable to find, in any of the provisions of the charter above quoted, or in any other provision thereof, that the power is granted to the city council to regulate or prohibit parades or processions as such. It is nowhere given in express words nor can we conclude that it is granted by necessary implication.

It may be that under the power to regulate the use of the public streets, would be found the power to declare that certain streets or portions of the streets should not be used by processions at all, or during certain hours of the day or night; but such ordinance would have to be impartial and general, and not be so drawn as to make it possible that discrimination should be made in enforcing it, against some, and in favor of others, and in order to be sustained, it would have to appear that it was designed to subserve some public necessity or convenience.

The ordinance cannot be said to be a regulation of the use of the streets. It is, in effect, a prohibition of the use of the streets for what has always been a common and ordinary use of them in cities—a use practically inseparable from the aggregation of large populations, in modern urban communities. Processions and parades through the streets are not nuisances, and have never been so considered. True, a procession may become disorderly or riotous, and degenerate into a mob, or a parade may be so conducted in the banners which it displays, or the objects and purposes of its march, or the disorderly and abhorrent noises in which it indulges, as to invite a breach of the peace, or to render' itself a nuisance, but this would be under exceptional circumstances, and the individuals so disporting themselves would be subject to punishment, and are thus under the restraint of law.

Under a popular government like ours, the law allows great latitude to public demonstrations, whether religious, political or social, and it is against the genius of our institutions to resort to repressive measures which have a tendency to encroach on the fundamental rights of individuals or of the general public.

In considering the validity of an ordinance similar to the one in question, the Supreme Court of Michigan, speaking through Campbell, C. J., said: “It has been customary from time immemorial, in all free countries and in most civilized countries, for people who are assembled for common purposes to parade together by day, or reasonable hours at night, with banners and other paraphernalia, and with music of various kinds. These processions for political, religious and social demonstrations are resorted to, for the express purpose of keeping up unity of feeling and enthusiasm, and frequently to produce some effect on the public mind by the spectacle of union and numbers. They are a natural product, and exponent of common aims and valuable factors in furthering them. They are only found to any appreciable extent in places having collected inhabitants, for spectators are generally as important as members. They are among the incidental conditions of city life, and are as much to be expected, on suitable occasions, as any other public meeting, and not necessarily more dangerous.” Matter of Frazer, 63 Mich. 396.

There is no power granted to the common council which would authorize it to take from the people of this city a privilege exercise.d freely in all communities throughout the land ever since the organization of the government. To uphold such, an ordinance the power to pass it must be clear and controlling, and when there is doubt as to the power, the question must be resolved in favor of the greatest liberty and against repression or arbitrary restraint. But if the council has the power to regulate or prohibit processions in the streets, this ordinance is not a proper exercise thereof. The power, if it exists at all, must be exercised by the council by ordinance, and can not be delegated to the discretion of the chief of police. Kinmundy v. Mahan, 72 Ill. 463; City of East St. Louis v. Waiming, 50 Ill. 31.

“ This by-law is unreasonable because it suppresses what is generally perfectly lawful, and because it leaves the power of permitting or restraining processions and their courses, to an unregulated official discretion, when the whole matter, if regulated at all, must be by permanent, legal provisions operating generally and impartially.” Matter of Frazer, swpra.

Said the Supreme Court of Kansas, speaking of a like provision in an ordinance: It might be proper, on account of the peculiar conditions of affairs in a city, that street parades should be confined to certain streets, or should be conducted within certain hours of the day, or should be forbidden in the night time, or that the police department should have some previous notice, or that there should be other reasonable regulations respecting them, justified by such a condition that it would be apparent that regulation and not prohibition, was-the object of the ordinance; because the power can not extend to prohibition, for the very essence of regulation is the existence of something to be regulated. * * * It is nota reasonable regulation to vest the power .arbitrarily in the mayor to grant or refuse permission to any association of persons, combined for legal and meritorious purposes to parade the streets with music.” Anderson v. City of Wellington, 19 Pac. Rep. 719; Baltimore v. Radecke, 49 Md.

The ordinance in question applies to all processions, charitable, religious, political or otherwise. It can not be other than partial and discriminating in its practical operation when the granting or refusal of the permit is left to the discretion of one man. Ho man is so just or impartial as to be safely invested with such power. One chief of police might refuse the Salvation Army; another might exercise his power to repress the parades of the Ancient Order of Hibernians; another might render the members of the Masonic organization liable to a fine for marching in the funeral procession of a deceased brother, and still another might forbid the progress through the streets of a political organization.

These may be extreme suppositions, but they are of pos-' sible occurrence. It must be remembered the right of the Salvation Army is equal to any of the others, and though that body may appear grotesque to some, and be the subject, perhaps, of unjust ridicule, that can be no reason why the liberties and rights of its members should not be jealously protected. There can be no true liberty where an individual is clothed with arbitrary power; unregulated discretion is tyranny.

The ordinance may, and most likely does, operate partially, and is unjust, unreasonable and therefore void.

The judgment of the Criminal Court will be reversed.

Judgment reversed.

Gary, J".,

dissenting. I think under the power given to cities to regulate the use of streets, so much of the ordinance as relates to parades and processions upon the streets is valid; that in the nature of things the occasions, when they ought to be prevented or permitted, can not be known and provided for in advance by general ordinance; that a discretion must be lodged somewhere; and that the superintendent of police charged with the direction of the physical force for the preservation of peace and order in the city, is a proper officer to be vested with that discretion.


author: Moran, J.

text:
    Frederick Bryton et al. v. Lawrence Marston.

      Sales—Play — Written Contract — Conditions—Breach— Forfeiture Damages—Penalty.

    1. The language of the parties to a contract touching the construction of a clause therein stating the damages to be paid in case of the breach thereof, is not controlling, and if a strict construction of the terms used would result in oppression or in contravening the intention of the parties the courts may inquire into the damages sustained and make compensation for such injury the measure of damages for the breach.
    2. Where a party agrees in writing to do several things, one of which is to pay a sum of money, and in case of a failure to perform any or either of the stipulations set forth, to pay a larger sum as liquidated damages, the larger sum is to be regarded in the nature of a penalty, and in the absence of evidence of actual damages in an action for a breach of the agreement, nominal damages only may be recovered.
    3. In a suit upon a contract of sale of a play for breach of conditions thereof, it being provided that the agreement of sale should become null and void in case the same was not produced, and that it should be returned, this court holds that for the failure to so return, a recovery can be had of its reasonable value.

      [Opinion filed May 29, 1889.]
    Appeal from the Superior .Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    An action of assumpsit was brought by appellee against appellants upon the following contract:
    “Articles of agreement made the 27th day of August, 1884, between Hate Salsbury and Frederick Bryton, of the city, county and State of Hew York, parties of the first part, and Lawrence Marston, of the same place, party of the second part, witnessetli as follows: The parties of the first part
    agree to purchase from the party of the second part a certain original play or drama, written and composed by the said party of the second part, which said play or drama was duly copyrighted with the Librarian of Congress of the United States at Washington, D. C., under the title of ‘Walton’s Home,’ by the said party of the second part, in the year 1884. And the said party of the second part agrees to sell to the parties of the first part all the right, title and interest whatsoever to the said drama entitled ‘ Walton’s Home,’ and the manuscript and copyright thereof, for the sum of $3,000, good and lawful money of the United States, upon the following conditions: The said parties of the first part shall, upon
    the delivery to them of the manuscript and acting parts of said play or drama entitled ‘Walton’s Home,’pay to said party of the second part the sum of $200, and the further sum of $10 per night for each and every night of the actual performing in any theater of the said play or drama, and the sum of $5 for each and every afternoon and matinee performance of the same, until the said sums shall aggregate the sum of $3,000, when the said play or drama shall become the absolute property of the said parties of the first part. That the said parties of the first part shall have the exclusive right to make any and such alterations in the said play or drama, entitled ‘Walton’s Home,’ as they shall deem meet for the proper production of the same. That they shall use the name of the party of the second part as the author of the said play or drama, and print the same upon their play bills and advertisements.

      “ That tlie said party of the second part, his heirs and assigns, covenants and agrees to and with the parties of the first part, their heirs and assigns, that he, the party of the second part, his heirs and assigns, will not at any time hereafter engage, directly or indirectly, with any person or persons, other than the said parties of the first part, their heirs and assigns, in producing in any manner, at any theater or elsewhere, the said play or drama entitled ‘ Walton’s Home,’ or in selling or disposing of the same. And the said party of the second part, for himself, his administrators and assigns, doth promise, covenant and agree to and with the parties of the first part, their heirs and assigns, by these presents, that they, the said parties of the first part, their administrators and assigns, shall and lawfully may, from time to time, and at all times hereafter, peaceably and quietly have, hold and possess and enjoy the said play or drama, entitled ‘ Walton’s Home,’ hereby sold, or intended to be, without the lawful hindrance or molestation of the said party of the second part, his administrators and assigns, or of any person or persons whatsoever, by or with his or their act, consent, privity or procurement. That the said parties of the first part, their heirs and assigns, bind themselves to and with the said party of the second part, his administrators and assigns, that they will produce the said play or drama of ‘ Walton’s Home ’ before the public on or before the 1st day of October, 1885, or in failure thereof, then this agreement of sale shall become null and void, and all moneys paid by the said parties of the first part to the party of the second part shall be forfeited to him, and the manuscript of said play shall be returned. That the said parties of the first part, after the production of said play or drama, entitled ‘Walton’s Home,’ shall pay to the party of the second part, his administrators and assigns, the said sum of $10 for each and every night performance, and said sum of $5 for every afternoon or matinee performance, each and every week, by post-office order, or in such other way as shall be mutually agreed upon. And it is expressly understood that the stipulation of sale aforesaid are to apply to and bind the administrators and assigns of the respective parties, and in case of failure to perform any of the agreements of said sale, the parties hind each unto the other in the sum of $5,000, as fixed and settled damages to be paid by the failing party or parties.
    “ In witness whereof we have set our hands and seals the day and year first above written.
    (Signed) “ Salsbuby & Beyton. [seal,] “Lawrence Mabston. [seal.]”
    To the declaration there was a plea of the general issue, and the case was tried by the court without a jury.
    Plaintiff’s evidence showed that he was paid the $200 mentioned in the contract, and nothing more, and that defendants had never produced the play, and had not returned the manuscript to him.
    The court found for the plaintiff and assessed the damages at $5,000, to which appellants duly excepted, and from the judgment entered on such finding this appeal is prosecuted.
    Mr. A. B. Jenks, for appellants.
    Messrs. Cunningham & Keily, for appellee.
   Moran, J.

The question presented is whether the clause of the contract which provides that “in case of failure to perform any of the agreements of said sale, the parties bind each unto the other in the sum of $5,000, as fixed and settled damages, tobe paid by the failing party or parties,” is to be treated as creating a penalty or as an agreement liquidating the damages to be recovered in case of breach.

It is well settled that the language used by the parties in framing such a clause in a contract is not controlling; that if a strict construction of the terms used would result in oppression, or in contravening the intention of the parties as gathered from the whole instrument, then the use of such words as “liquidated,” or “fixed and settled” damages will not prevent the courts from inquiring into the actual damages sustained, and making compensation for such actual injury, the measure of damages for the breach.

When we examine the contract in this case, we find that there is an agreement by the appellants to pay $10 for every night performance and $5 for every afternoon performance of the play, till the sum of $3,000 should be paid, and that said payments should be made each week by post-office order or in some other way to be agreed upon.

Now the settled damage clause secures the performance of this agreement to pay these small sums of money each and every week, for the $5,000 is to be paid “ in case of failure to perform any of the agreements of said sale.” There can be no doubt that the sum to be paid and the time and manner of payment are essential and material “ agreements of said sale.”

So far as the damage «clause applies to the breach of such parts of the contract, it is to be construed as a penalty; for it is settled by a substantial concurrence of the authorities that 11 where, by the terms of a contract, a greater sum of money is to be paid, upon default in the payment of a lesser sum, at a given time, both courts of law and equity will hold the provisions for the payment of the greater sum to be a penalty. And even where the parties stipulate for the payment of a sum certain on default of performance of an agreement, such stipulation will be treated as a penalty if the damages are not difficult of ascertainment.” Tiernan v. Hinman, 16 Ill. 400; 1 Sutherland on Dam., 497; Scofield v. Tompkins, 95 Ill. 190.

There is in the contract, however, a stipulation for the breach of which damages would be uncertain and difficult to fix; that is the agreement to use the name of the party of the second part as the author of the play, and print the same upon their play bills and advertisements. This seems to be ■an unimportant and merely incidental stipulation, and it is difficult to.conclude that it was the true meaning and intent of the parties to make $5,000 the measure of its breach. But the fact that the breach of it as well as the breach of the money agreements in the contract, is covered by the damage clause, does not compel the construction of said clause as liquidating the damages. The rule is that “ where a party agrees to do several things, one of which is to pay a sum of money, and in case of a failure to perform any or either of the stipulations agrees to pay a larger sum as liquidated damages, the larger sum is to be regarded in the nature of a penalty; and being a penalty in regard to one of the stipulations to be performed, is a penalty as to all.” Cotheal v. Talmadge, 9 N. Y. 551; 1 Sutherland on Dam., 521.

It follows that under the terms of the contract the agreement to pay $5,000 must be treated as a penalty and that appellee, having introduced no evidence on the trial as to actual damages, was entitled to recover only nominal damages for breach of contract. As the case must be remanded for another trial, we will notice the clause of the agreement requiring the production of the play before the public, on or before October 1, 1885.

On a failure to so produce, the parties provided that the agreement of sale should become null and void, and the play should be returned. The play not having been produced, the terms of the agreement left none of the stipulations of it operative between the parties on which to maintain an action, except that for the return of the play. For the failure to so return, appellee can recover what the manuscript shall be shown to be reasonably worth.

The judgment of the Superior Court will be reversed and the case remanded.

Reversed a/nd remanded.