author:
Mr. Justice O’Connor
      Mr. Presiding Justice Matchett

text:
    Lucy Belle Dunham, Appellant, v. Clark E. Kauffman et al., Appellees. Gilbert Scribner et al., Trustees Under Last Will and Testament of Jonathan Clark, Deceased, Appellees.
    Gen. No. 42,382.

      Matchett, P. J., dissenting.
    Opinion filed May 10, 1943.
    Rehearing denied May 24, 1943.
    Arthur Abraham, of Chicago, for appellant.
    Sidley, McPherson, Austin & Burgess, of Chicago, for certain appellees; Donald F. McPherson and George Ragland, Jr., both of Chicago, of counsel.
    Hopkins, Sutter, Halls & DeWolfe, of Chicago, for certain other appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff, as successor of the lessor, filed her complaint in chancery against defendants who were the legatees of a deceased lessee, to recover rent and taxes which accrued under the terms of the lease after the administration of the estate of the deceased lessee to the extent of the assets which each of the defendants had received. Defendants were all non-residents. Four days after the suit was begun an affidavit for attachment was filed and a writ issued which was served on the garnishees. Defendants were served by publication. Afterward one of the defendants filed his answer. Plaintiff filed interrogatories which the garnishees answered, from which it appears that they were trustees under the last will and testament of Jonathan Clark, deceased, and that at the time of the service of the writ they did not have any moneys, credits or effects “then distributable to the defendants.” That “they hold the corpus of the trust estate” created by the will of Jonathan Clark, deceased, and that at the end of 20 years from the death of the survivor of Jonathan Clark’s wife and his last surviving child, the corpus would be distributable, but that the end of the 20-year period had not yet arrived and “these garnishees are unable to state, . . . which, if any, of the defendants” will be entitled to a share of the corpus of the trust estate after the 20 years. The garnishees further answering the interrogatories said they had made quarterly payments to defendants, the beneficiaries, during 1941, on the l-5th day of March, June, September and December, from the assets of the estate, and then set up the amounts payable to each defendant March 15, 1942, aggregating $2,962.50, and that these payments had been withheld on account of the service of the attachment writ and they “requested the Court to instruct them whether the attachment before judgment in this chancery suit was proper.”

April 29, 1942, the court entered an' order which recites the matter came on to be heard “on the motion and answer of the Trustees under the Last Will and Testament of Jonathan Clark, Deceased,” and the court having heard arguments of counsel for all parties and “finding that no judgments have been obtained against any of the defendants,” it was ordered that the garnishees as “Trustees under the Last Will and Testament of Jonathan Clark, deceased, be and they are hereby authorized and directed to forthwith make payments out of said trust to the defendants herein who are beneficiaries of said trust.” It is from this order that plaintiff appeals.

Counsel for plaintiff in stating plaintiff’s theory of the case says: “The only question presented on this appeal is whether or not an attachment will lie upon a money claim where the original proceeding is in chancery. It is the contention of the plaintiff that where the defendants are non-residents and plaintiff has a money claim against the defendants, that attachment will lie irrespective of whether the proceeding is in chancery or at law.”

On the other side, counsel for the defendant who filed an answer to the' complaint, in their brief say that “Attachment does not lie in chancery proceedings.” And counsel for the garnishees in their brief go farther and say: “Attachment before judgment in a chancery suit always has been unknown to Illinois law. ’ ’

Attachment proceedings are entirely statutory and the claimed liability to defendants can be enforced only in equity. Union Trust Co. v. Shoemaker, 258 Ill. 564. In that case where the liability sought to be enforced was the same in principle as the claimed liability in the instant case the court said: “If maintainable at all, it is under the original jurisdiction of the court of chancery over the estates of deceased persons, whereby that court could reach property that should be applied to the payment of debts. ... On this subject it is said by Justice Story (1 Eq. Jur. sec. 92): ‘Legatees are always compellable to refund in favor of creditors, because the latter have a priority of right to satisfaction out of the assets.’ . . .

“Although no action at law lies, or ever did' lie, against distributees of personal property, whether legatees or heirs, for a debt of the ancestor, the ancient remedy by a bill in equity for a discovery, if necessary, and an account of assets received applicable to the payment of the decedent’s debts, still continues.”

And in Olsen v. Hartford Accident Co., 368 Ill. 194, the court said: ‘ ‘ The statutory limitation of one year from the granting of administration in which to exhibit claims against the estate does not apply to an action by a creditor of the decedent against the heirs, devisees or legatees to subject property received by them from the estate to the payment of a claim, which, during the allowable period for filing against the estate, was a contingent liability, only, but thereafter has become fixed. (Union Trust Co. v. Shoemaker, 258 Ill. 564.)”

In the instant case the claim for rent under the lease did not accrue until after the administration of the estate of George T. Clark, deceased, but was contingent.

Counsel for plaintiff cites authorities from a number of other States of the Union, most of which hold in effect, that an attachment will lie where the suit is of an equitable nature but in practically all of these jurisdictions the statutes provide in substance that there shall be one form of civil action. There has been no such fusion in this State between actions at law and suits in equity. (Frank v. Salomon, 376 Ill. 439.) Moreover, as we said in Campagna v. Automatic Electric Co., 293 Ill. App. 437: “As the proceeding by way of garnishment is purely statutory, cases decided by the courts of other States under statutes materially different are of little aid in the construction of our own statute.”

Section 1 of the Civil Practice Act, approved in 1933 and in force January 1,1934, provides: ‘ ‘ The provisions of this Act shall apply to all civil proceedings, both at law and in equity, unless their application is otherwise herein expressly limited, in courts of record, except in attachment, . . . garnishment,” etc. At the time the Civil Practice Act became effective, January 1, 1934, § 1 of the Attachment Act (Cahill Ill. Rev. Stat. 1933, chap. 11, § 1) provided: “That in any court of record having competent jurisdiction, a creditor may have an attachment against the property of his debtor, . . . when the indebtedness exceeds $20, . . . Where the debtor is not a resident of this State.” And § 31 of the Attachment Act, in force at that time provided that “The plaintiff, in any action of assumpsit, debt, covenant, trespass or trespass on the case, having commenced an action,” and before judgment, on filing an affidavit showing his right to an attachment, may sue out a writ of attachment under the first section of the act in aid of such suit.

Two years after the, passage of the Civil Practice Act the legislature amended § 1 of the Attachment Act and repealed § 31 of that Act. Ill. Rev. Stat. 1941, ch. 11, § 1 [Jones Ill. Stats. Ann. 109.032] and § 31. Section 1 as amended provided “That in any court of record having competent jurisdiction, a creditor having a money claim, whether liquidated or unliquidated, and whether sounding in contract or tort, may have an attachment against the property of his debtor, . . . either at the time of instituting suit or thereafter, when the claim exceeds $20,” where the debtor is not a resident of this State. And at that time (1935) § 26 of the Attachment' Act was enacted. That section provides: “The provisions of the Civil Practice Act, including the provisions for appeal, and all existing and future amendments of said Act and modifications thereof, and the rules now or hereafter adopted pursuant to said Act, shall apply to all proceeding's hereunder, except as otherwise provided-in this Act.”

The question for decision is, does § 1 of the Attachment Act, as amended in 1935, authorize the issuance of a writ of attachment in a chancery case where plaintiff is seeking a decree for money only? We think it does. The question is one of first impression. No case has been cited in this State where it has been held that a writ of attachment would not issue in a chancery case although under our practice we have always understood that a writ of attachment or one in aid would issue in actions at law although it has long been firmly established that a writ of attachment may be issued in a chancery case after a money decree has been entered; and this, too, under the old Attachment and Practice Acts. Cohen v. North Ave. State Bank, 304 Ill. App. 413; Weightman v. Hatch, 17 Ill. 281; Ihorn v. Wallace, 88 Ill. App. 562.

In the Weightman case.the court said: “A party has a right to the same remedies to enforce the collection of a decree in chancery for a specific sum of money, which he has to enforce a judgment at law.” In the Ihorn case the court said: “The garnishment act is remedial in its character and should receive a liberal interpretation, so that the remedy may be promoted and its purposes subserved. Luton v. Hoehn, for use, etc., 72 Ill. 81. ’ ’ In the Luton case the court, in passing On the question whether a judgment debtor in the circuit court could be garnisheed by process issued by a justice of the peace held that he could and said: “No doubt some inconvenience may arise in subjecting judgments, upon which executions have already been issued, to this process, but the general good should be regarded as the paramount interest, rather than thé mere convenience of the debtor. The same difficulty would occur in courts of equal jurisdiction. ... It [garnishment] affords, in many instances, the only remedy the creditor has for collecting his claim, and it should always receive a liberal construction.” We think the same liberal interpretation ought to be applied to the Attachment Act.

Section 1, of the Attachment Act from which we have above quoted, authorizes the issuance of a writ of attachment where a money claim exceeds $20 and a proper affidavit required by that section is filed vis., “a creditor having a money claim, whether liquidated or unliquidated, and whether sounding in contract or tort, may have an attachment against the property of his debtor. ’ ’ There is no limitation. The statute does not require that such proceedings be in a court of law or a court of equity. All the act requires is that the creditor have a money claim and in the instant case, plaintiff’s claim is for money only. She prays that a decree be entered against defendants for such sums as they have received from the estate of George T. Clark, deceased, one of the tenants, to the extent of the amount so received, provided, of course, that such amounts do not exceed the amount claimed to be due under the terms of the lease.

Counsel for defendants and counsel for the garnishees in their briefs say that “Equitable attachments are ‘abhorrent to the principles of equitable jurisdiction,’ ” and cite a number of authorities from the Appellate Courts and the Supreme Court of this State but we think they are not applicable here. In those cases no affidavit for garnishment is required and it is generally sought to enjoin defendant from disposing of his property pending a hearing of the case on its merits, such as Schufeldt v. Boehm, 96 Ill. 560, where the court said: “If the property of an honest, struggling debtor could be tied up by injunctions upon •mere unadjusted legal demands, he would be constantly exposed to the greatest hardships and grossest frauds, for which the law would afford no adequate remedy. By taking his property out of his hands before the claim is due, or before its justice has been established by a judgment, in many cases would be to deprive him of the means of payment, and even of the means of defending himself against a vexatious and oppressive suit.” And continuing, quoting from Phelps v. Foster, 18 Ill. 309: “We are not aware of any principle of equity jurisprudence which will justify the issuing of an injunction in such a case to compel the parties to hold the goods, pending a trial at law, to see if they will not be wanted to answer an execution upon a judgment which the complainant hopes to obtain.”

Counsel for the defendant who filed an answer to the complaint further contend that the order appealed from is interlocutory, not appealable and that the appeal should therefore be dismissed, and in support of this cite Great Northern Refining Co. v. George C. Peterson Co., 214 Ill. App. 492; Rabits v. Live Oak, Perry & Gulf R. Co., 245 Ill. App. 589 and Brignall v. Merkle, 296 Ill. App. 250, in which we held that this court would not pass upon a case piecemeal and in two of the cases the writ of attachment was quashed, leaving the case against defendant undisposed of and in the Rrignall case, the attachment was sustained and we held an appeal would not lie from that order for the reason that unless plaintiff recovered against defendant, the attachment would be of no avail.

In the instant case, the order appealed from not only holds that the attachment will not lie but also directs the garnishees to make payments forthwith to defendants. In these circumstances we think the order is reviewable by this court and this, in view of the fact that plaintiff was entitled to a default judgment against defendants, save the one who filed his answer. They had been served by publication and no point is made that the complaint did not state a good cause of action. Judgment was not entered against them before the court entered the order appealed from, apparently for the reason that plaintiff’s counsel did not bring this to the attention of the court and the garnishees were asking the court for advice and direction as to what they should do with the money they then had.

The order of the superior court of Cook county appealed from is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded with directions.

McSitrelt, J., concurs.

(See next page.)

Mr. Presiding Justice Matchett

dissenting: Section 1 of the Attachment Act, as amended in 1935, authorizes an attachment “in any court of record having competent jurisdiction” by “a creditor having a money claim, whether liquidated or unliquidated, and whether sounding in contract or tort.” The act was further amended in 1939 (see Laws of 1939, p. 289).

The ultimate question here is whether the legislature intended by the amendment to authorize an attachment based on a purely equitable cause of action. As the opinion states: “The claimed liability to defendant can be enforced only in equity.” Union Trust Co. v. Shoemaker, 258 Ill. 564. The Civil Practice Act did not abolish but on the contrary recognizes the fundamental distinction between actions at law and in equity. Frank v. Salomon, 376 Ill. 439.

The able briefs here submitted do not disclose any case where in the absence of specific statutory authority an attachment has issued based on a purely equitable claim, such as is disclosed by the complaint here. If it had been the intention of the legislature to authorize such an innovation, I think it would have said so.

The decision here, as I see it, amounts to legislation by the judiciary. Also, the order appealed from seems to be merely interlocutory. In conformity with the well considered opinions of this court the appeal should be dismissed. Great Northern Refining Co. v. Peterson, 214 Ill. App. 492; Brignall v. Merkle, 296 Ill. App. 250.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    Mary Mims, Appellee, v. Mutual Benefit Health and Accident Association, Appellant.
    Gen. No. 42,440.
    Opinion filed May 10, 1943.
    Rehearing denied May 24, 1943.
    Ross, Berghem & Schwantes, of Chicago, for appellant.

      Meyer A. Ginsburg, of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff, the beneficiary of a life and accident policy issued by defendant, brought suit to recover $1,250, the amount of the policy, for the accidental death of her husband, Doc Mims. There was a jury trial, a verdict and judgment in plaintiff’s favor for $1,250 and defendant appeals.

The record discloses that November 2,1938, defendant issued its health and accident policy to Doc Mims and on that day he paid $10 in advance as a first payment and thereafter agreed to pay $7 quarterly in advance beginning March 1, 1939. The last quarterly premium of $7 was due April 1, 1941 and paid April 7, 1941. This premium paid for the months of April, May and June so that it is agreed the policy was in .force and effect on July 1, 1941. The insured, Doc Mims, was accidentally killed July 10, 1941, and the defense interposed was that the policy was not- in effect at the time of his death. -

The theory of plaintiff was that the conduct of defendant in accepting a number of the quarterly premiums after they were due, one as late as 30.days after it became due, estopped the defendant company from claiming that the policy was not in effect on July 10, 1941, the day the insured was accidentally killed. Defendant’s theory as above mentioned is that the policy lapsed July 1,1941, because the $7 premium which was required by the policy for the months of July, August and September, was not paid on or before July 1,1941. In support of this, counsel for defendant say that one of the standard provisions of the policy, as required by the statute (Ill. Rev. Stat. 1941, ch. 73, par. 969, § 357, subpar. (A) 3 [Jones Ill. Stats. Ann. 66.1032]) provides: “If default be made in the payment of the agreed premium for this policy, the subsequent acceptance of a premium by the Association or by any of its duly authorized agents shall reinstate the policy, but only to cover accidental injury thereafter sustained.” And that when each quarterly premium of $7 was made, defendant sent the insured an official receipt in which the due date of the premium was given and the date the payment was received. In the first of these printed receipts was the following: “Payment of this premium receipted for, if made on or before the date to which premiums have already been paid, keeps your policy in continuous effect, and if made after that date, reinstates the policy on date of this receipt, as provided in policy, until 12 o’clock noon, standard time, June 1, 1939, at which time another premium will be due.” Similar receipts were given when the quarterly premiums of $7 were made, except the dates varied when the premiums were due, the date the payment would carry the policy and the time when the next premium was due.

In support of defendant’s contention that the policy was not in force after July 1, 1941, counsel say that when the premium was not paid when due, the liability under the policy ceased on the due date and when payment was afterward made, the policy was reinstated on the date of the payment. Counsel cite, discuss and analyze a number of authorities from this State and from other jurisdictions. The effect of this argument would be that the policy was not in effect continuously from the date it was issued, November 2,1938, but that the policy had lapsed from the respective dates when the premiums became due until the payments were made. In this connection- let us examine the facts. The first premium was due March 1, 1939. It was not paid until March 13, 1939, so that for 12 days, under defendant’s theory, there would be no coverage. Another premium was due January 1, 1940. It was not paid until January 31, 1940, a period of 30 days not covered; April 1,1940, another premium was due but it was not paid until April 15 — 14 days of non-coverage. January 1, 1941, a quarterly premium of $7 was due but was not paid until January 13, a period of 12 days from which there would be no insurance, and the last premium was due April 1,1941, but was paid April 7, a period of no insurance of at least 5 days. But a consideration of the evidence discloses that the insured was charged for the entire period of time. We think it obvious that defendant ought not to be permitted to contend that when the payments were made after they were due, there was no coverage from the due date until payment, and at the same time, charge the insured for these periods of time.

In Rashinski v. Travelers Casualty Ins. Co., 312 Ill. App. 260, (Abst.) we said: “It is well settled by many cases in this state that where an insurance company induces the insured to believe that payment of the premium may be made after the due date, a forfeiture is barred where the payment is made before the last day of the extended period. Baxter v. Metropolitan Life Ins. Co., 318 Ill. 369; Stevenson v. Prudential Ins. Co. 308 Ill. App. 401, 408; Hooker v. Farmers Mut. Reinsurance Co., 304 Ill. App. 230; Chicago Life Ins. Co. v. Warner, 80 Ill. 410. In the Stevenson case, supra, the beneficiary was notified that unless the premium was paid by a certain date the policy would be forfeited, but the company declared a forfeiture before that date; we held that the beneficiary ‘had no way of knowing that the policy would be forfeited before September 16, as the notice stated, nor could she know that the company would contend the policy was forfeited and void for non-payment of the June premium . . .’ We quoted from the Baxter case: ‘Forfeiture of life insurance policies is not favored, and unless the circumstances show a clear intention to claim a forfeiture for non-payment of the premium such forfeiture will not be enforced. If the conduct of the insurer is such as to induce the assured to believe that a forfeiture will not be insisted upon, the insurer will be held to be estopped from taking advantage of such forfeiture . . . ’ ”

We think whether it be said that a policy is forfeited for non-payment of premium and that such forfeiture is not favored, is not much different from saying, as do counsel for defendant in the case at bar, that the policy comes to an end when the premium is not paid when due, and that when it is afterward paid, the policy is “reinstated.”

In Benoist v. Business Men’s Assur. Co. of America, 299 Ill. App. 571, where suit was brought on an accident insurance policy which contained a standard provision similar to the one in the policy before us, which provided that if premiums were not paid until after they were due, and when made, the payments should “reinstate” the policy and there had been several premiums paid after they became due, the court held the policy was in force and effect continuously from the date of its issuance. The court there said: “Running over that length of time, and accepting the payments when they were past due without any apparent objection and without any word to the insured looking towards forfeiture, or any steps in that direction, seems to us by consent and agreement and practice to establish a different system of payment than that provided in the policy. We are, therefore, of the opinion that the defendant waived the payments as provided in the policy and consented to a different system of payment which would estop it from saying now that the policies were'not in continuous force.”

A further contention is made that the judgment cannot stand because the provision of the policy requiring plaintiff to file proofs of loss was not complied with— that no proofs of loss were made. This contention is without merit because the evidence shows that the day after the insured was killed an agent of the company said there was no liability under the policy. Afterward on August 1,1941, the defendant assistant superintendent of claims wrote plaintiff’s counsel a letter stating the policy had lapsed July 1, 1941, and “in view of the lapsation of the policy, favorable action is not possible.” Defendant having denied liability, it would be a useless ceremony to file proof of loss.

It is also contended that the court erred in admitting evidence over objection of counsel. Plaintiff testified that she paid some of the premiums at the office of the insurance company, 220 S. State street, to Mr. Louis Bromberg; that on July 11, the day following her husband’s death, she went to Mr. Bromberg’s office and tallied to him and that he said he knew Mr. Mims personally and was sorry to learn of his death; that “I was out there yesterday and also the day before trying to catch him to collect his insurance.” The objections to these and similar questions were properly overruled. The evidence shows that Mr. Bromberg was the district representative of defendant company in Chicago and that premium payments could be made to him as “local treasurer.” He was,not called as a witness and the failure to do so is not explained.

Nor is there any merit in the contention that counsel for plaintiff was permitted to make improper argument to the jury where after discussing some of the evidence he said: “I think the court will instruct you as to the law — .” Objection was then made, and the argument is that counsel should not be permitted to tell the jury what the court would instruct them as to the law. It is entirely proper for counsel to say in his argument that he thinks the court will instruct the jury — stating the law which he thinks the court will give.

Objection is also made that the court gave three instructions at plaintiff’s request but refused to instruct the jury when requested to do so by defendant. Defendant offered no written instructions but requested the court to instruct the jury orally. Under our statutes (Ill. Rev. Stat. 1941, ch. 110, par. 191, § 67. [Jones Ill. Stats. Ann. 104.067]) the instructions must be in writing unless under a rule of the county court of Cook county the parties and the court agree that the court may instruct orally. Defendant having no written instructions prepared, the court did not err in refusing to instruct orally, nor was there any error in refusing to submit the offered instructions to defendant’s attorneys. This is not required.

The first instruction told the jury in effect that although the policy of insurance 'provided for the payment of quarterly premiums in advance, the time of payment was optional and might be waived by defendant. By the second instruction the jury were told that where an insurance company induces the insured to believe that payments may be made after the due date and that if they believed from a preponderance of the evidence through the course of dealing the insured was led to believe that the policy would not be forfeited, the insurance company would be estopped from taking advantage of failure to pay when due. From what we have above said, these instructions were not erroneous.

The third instruction copied a condition of the policy and said the policy was issued in consideration of statements made by the insured, the payment of $10 by him in advance, and the acceptance by the Association of a premium of $7 quarterly beginning March "L, 1939. And continuing, the provision was copied in the instruction “The mailing of notice to the insured at least fifteen days prior to the date they are due shall constitute legal notice of dues.” The instruction then continued and told the jury that if they believed from a preponderance of the evidence that notice of the premium due July 1, 1939 was not mailed to the insured at least 15 days prior to that date, their verdict should be for the plaintiff. Objections made to this instruction are that there were other defenses to the suit; that no issue was raised in the pleadings as to the date the notice was mailed, and continuing counsel say: “Only one witness testified as to the date the premium notice was mailed. That witness was C. Truman Redfield, who testified for the defendant that he knew from his knowledge and the custom of the company that all premium notices left the home office [at Omaha] more than fifteen days before the first day of the quarter. Redfield’s testimony stands uncontradicted.” This statement is not borne out by the record. Mr. Redfield did not testify when the notices were mailed from Omaha. He had been doing business for the company in Chicago for about 11 years with some trips back to Omaha. He did not pretend that he knew anything about the mailing of these notices. He simply testified to the custom. It would have been an easy matter to prove when these notices were mailed. But defendant made no effort in this respect except to have Mr. Redfield testify as to the custom of the company. Moreover Mrs. Mims testified she received the notice July 11, 1941 after she had returned from the inquest and after she had called on Mr. Bromberg.

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

Judgment affirmed.

Matchett, P. J., and McSurely, J., concur.


author: Justice Bristow.

text:
    Elizabeth Harper and Mildred Moore, Appellees, v. Tony Malandrone, Appellant.
    opinion filed March 2, 1943;
    rehearing denied June 1, 1943.
    Stone & Fowler,, for appellant; Gordon Franklin, D. L. Duty and Chas. D. Winters, for appellees.
   Opinion by

Justice Bristow.

“Not

to be published in full.’’


author: Presiding Justice Matchett.

text:
    In re Estate of John A. Monahan, Deceased. Mary A. Monahan, Administratrix, Appellant, v. Charles W. Wiggins, Appellee.
    Gen. No. 42,403.
    opinion filed May 10, 1943.
    Whitty & McGah, for appellant; William J. McGah and Charles J. Reed, of counsel; Walter B. Prendergast and John P. Carey, for appellee.
   Opinion by

Presiding Justice Matchett.

“Not to be published in full.’’


text:
    Michael Tallitsch, Plaintiff, and A. C. Wilcox, Assignee of Plaintiff, Appellants, v. Joseph Esterle and Elizabeth Esterle, Appellees.
    Gen. No. 42,416.
    opinion filed May 10, 1943.
    George A. Bosomburg, for appellant; Joseph A. Ricker, for appellees.
   Opinion by

Presiding Justice Matchett.

“Not to be published in full.”


text:
    Mae L. Riordan, Appellant, v. Arthur T. McIntosh, Appellee.
    Gen. No. 42,435.

      opinion filed May 10, 1943.
    Thomas C. Kennedy, for appellant; Bluford, Krinsley, Schultz & Voorheis, for appellee; Victor Hedberg, of counsel.
   Opinion by

Presiding Justice Matchett.

“Not to be published in full.”


text:
    Philip Hano Company, Inc., Appellee, v. Central Metallic Casket Company, Inc., Appellant.
    Gen. No. 42,443.
    opinion filed May 10, 1943.
    Robert C. Hardy, for appellant; Teller, Levit & Silver-trust, for appellee.
   Opinion by

Presiding Justice Matchett.

“Not to be published in full.”


text:
    Ruth E. Marsh, Administratrix, Estate of John W. Marsh, Deceased, and Blanche Gehrke, Administratrix, Estate of William Gehrke, Deceased, Appellants, v. Hazel O’Flaherty and Paul Rittis, Appellees.
    Gen. No. 42,471.
    opinion filed May 10, 1943.
    Alfred Roy Hulbert, for appellants; Lester E. Williams and Fishman & Fishman, for certain appellee.
   Opinion by

Presiding Justice Matchett.

“Not to be published in full.”


text:
    Karl E. Seyfarth, Appellee, v. George E. Leonard, Appellant.
    Gen. No. 42,576.
    opinion filed May 10, 1943.
    Deneen & Massena and Leonard & Leonard, for appellant; Marshall A. Pipin, Gordon McLeish Leonard and John H. Martin, of counsel; Taylor, Miller, Busch & Boyden, for appellee.
   Opinion by

Presiding Justice Matchett.

“Not to be published in full.”


author: Justice McSurely.

text:
    Ruth V. Cannon, Appellant, v. Marie N. Marmor, Executrix and Trustee Under Last Will and Testament of Alexander Marmor, Deceased, Appellee.
    Gen. No. 42,349.
    opinion filed May 10, 1943;
    rehearing denied May 24, 1943.
    Morris K. Levinson, for appellant; Nathan Schwartz, for appellee; Norman H. Arons, of counsel.
   Opinion by

Justice McSurely.

“Not to be published in full.”


text:
    James H. Kearney, Appellant, v. Louis Spiniola, Appellee.
    Gen. No. 42,395.
    opinion filed May 10, 1943.
    Guy C. Guerine, for appellant; Beverly & Klaskin, for appellee; Samuel T. Klaskin, of counsel.
   Opinion by

Justice McSurely.

“Not to be published in fuU.” ■


author: Justice O’Connor.

text:
    Cummings-Landau Laundry Machinery Company, Appellee, v. Harry Koplin et al., Appellants.
    Gen. No. 42,361.
    opinion filed May 10, 1943.
    Levinson, Becker, Peebles & Swiren, for appellants; Don M. Peebles, Herbert Portes and Theodore E. Sherwin, of counsel; Gurman & Eberle, for appellee; Samuel P. Gurman, of counsel.
   Opinion by

Justice O’Connor.

“Not to be published in full.”


text:
    J. Kent Greene, Appellant, v. John Toman and United States Fidelity and Guaranty Company, Appellees.
    Gen. No. 42,399.
    opinion filed May 10, 1943.
    J. Kent Greene, pro se; James Todd, for appellees.
   Opinion by

Justice O’Connor.

“Not to be published in full.”


text:
    Katherine B. Comstock et al. v. Morgan Park Trust and Savings Bank et al. Linny Schulze, for use of B. J. Schwoeffermann, Receiver, Appellee, v. Beverly State Savings Bank, Appellant.
    Gen. No. 42,411.
    opinion filed May 10, 1943.
    Paul W. Tatge and Robert F. Kolb, for appellant; Maurice Weissman, for appellee.
   Opinion by

Justice O’Connor.

“Hot to be published in full.’’


text:
    James J. Walsh et al., Appellees, v. Thomas G. Walsh, Appellant.
    Gen. No. 42,424.
    opinion filed May 10, 1943.
    John K. Haas, Jr. and J. Warren McCaffrey, for appellant; Edwin D. Lawlor and Kamener & Halligan, for appellees; Edwin D. Lawlor, of counsel.
   Opinion by

Justice O’Connor.

“Not to be published in full.’.’


text:
    Gregory Nahay and Helen Nahay, Otherwise Known as Gregory Nahaj and Helen Nahaj, Appellees, v. Paul Malawka et al., Appellants.
    Gen. No. 42,431.
    opinion filed May 10, 1943.
    Walter A. Witowski and Richard J. Cooney, for appellants; Patrick T. Harrington, for appellees.
   Opinion by

Justice O’Connor.

“Not to be published in full.”


text:
    People of the State of Illinois ex rel. Fred W. Goodloe, Appellant, v. James P. Allman et al., Appellees.
    Gen. No. 42,452.
    opinion filed May 10, 1943.
    William A. Booker, for appellant; Houston H. Hall of Braden, Hall, Barnes & Blakey, of counsel; Barnet Hodes, Corporation Counsel, for appellees; J. Herzl Segal, Carl H. Lundquist and D. Louis Karton, Assistant Corporation Counsel, of counsel.
   Opinion by

Justice O’Connor.

“Not to be published in fiill.”


text:
    Marion Ewing, Appellant, v. Edwin C. Ewing, Appellee.
    Gen. No. 42,459.
    opinion filed May 10, 1943.
    Benjamin B. Davis, for appellant; Ode L. Rankin, of counsel; Harry J. Berman and Eugene P. Meegan, for appellee.
   Opinion by

Justice O’Connor.

“Not to be published in full.’’


author: Mr. Presiding Justice Huffman

text:
    Forrest Gustafson and Arthur Sandquist, Appellees, v. Wethersfield Township High School District 191 et al., Appellants.
    Gen. No. 9,851.

      Opinion filed April 28, 1943.
    Rehearing denied June 23, 1943.

      Leonard D. Quinn, Thomas J. Welch and .Vera M. Binks, all of Kewanee, for appellants.
    James B. Young and Gregg A. Young, both of Kewanee, for appellees.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

Appellant High School District, and the Galva Community High School District, are both situated in Henry county. Appellees live in appellant district. They each have a child attending the Galva Community High School. This action arises by a petition for writ of mandamus brought by appellees against appellant district and the members of its board of education, to compel them to approve an application for transfer of appellees’ children from appellant High School District to the Galva Community High School District.

A board of education of a high school district is a public municipal corporation, and as such, a part of the machinery of government. Its functions are public in character. People v. Camarga Community Consol. School Dist. No. 158, 313 Ill. 321, 324. While powers of such boards are limited to those granted or such as necessary to make effective. granted powers, yet there are many questions of policy for the determination of the boards of education. It is generally considered that they have a wide discretion in matters pertaining to the management of schools. And as a general proposition, courts will not interfere unless there has been such an abuse of discretion that its action appears arbitrary and discriminatory. Segar v. Board of Education, Rockford School Dist., 317 Ill. 418, 422; People v. City of Chicago, 278 Ill. 318; Powell v. Board of Education, 97 Ill. 375; Wilson v. Chicago Board of Education, 233 Ill. 464.

Since the public educational interest and school affairs in school districts are placed under the control and management of school directors or other school officers, it is necessary that a broad discretion be accorded such officers in order that the authority vested in them may be efficiently and effectively exercised. Although their authority is not without limit, yet a wide range of judgment and discretion must be vested in such officers in the matter of government and details of conducting the schools. In view of these conditions, the courts will not ordinarily interfere by mandamus' to direct or control the exercise of their powers or authority so long as the same are not unreasonable, arbitrary or discriminatory.

Not all the duties they are called upon to perform however, are of that character. Like other officers, they are charged with many duties which do not rest in judgment or discretion and which they may be compelled to perform, and thus their refusal to act in such matters, when it is their duty to act, may be considered ministerial in character, and they may be compelled to act by mandamus, even though the manner in which they are to decide the particular issue may rest within their judgment and discretion.

In this case, appellees allege that they filed written application with appellants for transfer of their children from appellant district to the Galva Community High School, after first securing the approval of the county superintendent of schools to such transfer. It is further alleged that appellants have failed and refused to take any action with respect to appellees’ applications. It appears from the testimony of appellee Gustafson, that he attended a session of appellant board where the matter of his application for transfer of his son was discussed. He states that no action was taken relative thereto, and it appears the board of appellant district has continued in its refusal to act upon such petition, either in granting or denying same.

The petition in this case asks that a writ of mandamus issue directing appellants to approve the applications for transfer of the children, from the appellant high school district to the Galva Community High School District. The trial court ordered the writ to issue, commanding appellants as members of the board of education of appellant district to approve such applications.

The action is brought under section 104 of the School Act (ch. 122, sec. 104, p. 2888, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 123.111]). It will be observed this section provides that a high school pupil, upon the approval of the county superintendent of schools, may attend a high school in a district other than that in which he resides, when such district is more convenient. It will be further observed that before such pupil may attend a high school in another district, such transfer must be approved by the board of education of the high school district in which the student resides.

It cannot be assumed that this section of the statute is self-executing, or that the mere approval of the county superintendent of schools will serve to complete the transfer of a student thereunder. The approval of the board of education of the high school district in which the student resides is a prerequisite to his transfer under such section. Had the legislature intended the approval of the county superintendent of schools should be sufficient, it would not have provided that the approval of the board of education of the district in which the student resided should be necessary for a transfer.

To approve means to pronounce good or proper, and where such transfers are by statute required to be approved by the board of education, it means more than a mere ministerial approval. It carries with it the exercise of judgment and discretion. This is the manifest intent of the statute. It is generally considered that when the approval of a distinct officer or body of officers is made necessary to validate, con-it is the intention of the legislature that such officer or summate or make effective by law the act of another, board of officers should be vested with the option and discretion to sanction officially or disapprove the aét submitted to him or them. This situation involves the exercise of discretion and adjudication. This is .the manner in which we find the word approved used in section 104 of the School Act. We are not of the opinion its use there is such as to impose a mere ministerial duty on the part of appellant board.

The word approve or approval is considered to mean to sanction officially. The very act of approval implies the exercise of judgment and discretion and final affirmative action, unless otherwise limited by the context of the statute. (Words and Phrases.) From the context of the statute involved, we are of the opinion the approval of the board of education of the district in which the pupil resides, is not such as to render the action of the board merely ministerial in character, but that it clearly implies an independent exercise of judgment and discretion on the part of such board.

The fact that appellant board has failed to act with reference to appellee’s applications for transfer of their children, does not permit the court to act for such board in the original instance. As members and officers of such board of education, it is their legal duty to take action upon the applications of appellees. However, it is not the function of a court in the first instance to adjudge how such board shall act. It is only that it is its legal duty to act. A court cannot judicially anticipate that appellant board will act unreasonably, arbitrarily or unjustly. Until the board has acted on the applications of appellees, the question of whether it has exercised its judgment and discretion in an unreasonable and arbitrary manner in passing upon such applications, or has been guilty of abuse of power with respect to its disposition of the same, is not before the court for judicial determination. Until such time may arise, the court should not order appellant board to act upon the applications and also adjudicate the manner in which the board shall act. The exercise of this right first rests with the board, and until it appears that such power has been abused by arbitrary and discriminatory action, the function of the board will not be interfered with. Segar v. Board of Education, Rockford School Dist,, supra; Rothschild v. Village of Calumet Park, 350 Ill. 330, 343.

Mandamus will issue to compel the exercise of a discretionary duty or power, but not the way in which such officer or officers shall exercise his or their discretion.

We consider the only thing at this time which concerns us, is the duty of appellants to act.

The judgment of the trial court awarding the writ directing appellants to approve the applications, is reversed and the cause remanded for such further proceedings as the parties may elect to take, consonant with the views hereinabove expressed.

Reversed and remanded.


text:
    John Folkerts, Administrator, and Etta Catherina Uphoff, Administratrix of Estate of Almuth Folkerts, Deceased, Appellants, v. Anna M. Shields, Appellee.
    Gen. No. 9,859.

      Opinion filed April 28, 1943.
    Rehearing denied June 23, 1943.
    Edward F. Riely, of Minonk, for appellants.
    Ben C. Leiken, of Eureka, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

This is an appeal from an order of the circuit court sustaining motion of appellee to dismiss appellants’ complaint.

The suit is predicated on the following writing:

“Dec. 23, 1935. I agree that just as soon as I am able, I will start to pay on the balance of my indebtedness to Mrs. Almuth Folkerts, which is twenty-two hundred and'fifty dollars.

Anna M. Shields.”

Appellee’s motion was based upon the claim that the above instrument was a conditional promise to pay, upon which suit would not lie without allegation and proof of the ability of the promisor to pay the debt.

The complaint charged written demand upon appellee for payment of the debt or some portion thereof, and averred that since no definite time was fixed for payment by said instrument that the same became due and payable within a reasonable time after its execution. It is charged that a reasonable time had elapsed; that the obligation was due and payable; that demand had been made; and that appellee had refused to pay the debt or any portion thereof.

It will thus be seen the complaint did not aver the ability of appellee to pay. It was upon this ground the court granted the motion to dismiss the complaint. Appellants elected to abide the pleadings, whereupon judgment was entered for appellee.

Appellants urge that a written obligation to pay a definite sum -‘as soon as possible,” or “as soon as able,” is an absolute promise to pay, and enforcible in an action at law after the lapse of a reasonable time. The instrument sued on was executed in December 1935. This suit was commenced in July 1941. The complaint charged and appellants urge that a reasonable time had elapsed between the date of the instrument and the filing of the suit.

The various jurisdictions are not in accord on this question. Many of them hold that a promise to pay “as soon as possible,” or when the promisor “is able” is an absolute, and not a conditional promise, and will be considered a promise to pay within a reasonable time. We are of the opinion this State adheres to such rule. Quinlan v. Thompson, 152 Ill. App. 275, 277 (with cases cited); Pinney v. Smith, 136 Ill. App. 129, 132 (with cases cited); Walker v. Freeman, 209 Ill. 17, 23.

A collection of representative cases will be found in 27 L. R. A. (N. S.), beginning on p. 300; L. R. A. 1918 A, at p. 902; 94 A. L. R. at p. 721; and Words and Phrases, under such expressions as, “as soon as able,” and “as soon as possible.” The case of Wilcox v. Turner, 51 Ga. App. 523, 181 S. E. 95, contains reference to various jurisdictions including Illinois, which hold that a written obligation to pay a definite sum “as soon as possible” is considered an absolute promise to pay, and enforcible in an action at law after the lapse of a reasonable time. This also appears to be the rule as announced in Williston on Contracts, vol. 1, sec. 38, p. 103.

The instrument itself imports a debt due from the promisor to the promisee. A presumption of intended payment arises by virtue of the instrument acknowledging the obligation. To say that it gave appellee the sole right to determine when the debt should be paid, would serve to defeat the purpose of the nontract, and would enable the debtor to wholly avoid her obligation. It cannot be considered the parties intended the debtor could wait forever.

The admission of the debt is sufficient to establish a legal liability, lacking only in the element of a definite maturity date. Such expressions as “as soon as able,” or “as soon as possible,” are too indefinite and uncertain to constitute a fixed condition resting upon the pleasure of the debtor, and since no definite time of payment is fixed, the same will be considered a promise to pay within a reasonable time. It would be entirely inconsistent with the purpose and spirit of the engagement between the parties to suppose that cney contemplated the obligation should never be capable of enforcement. The words used negative any contention that appellee should become financially able to discharge the entire debt at one time, but disclose the intention and understanding of the parties that appellee should start paying on such indebtedness as soon as possible.

Such expressions as, “as soon as able,” or “as soon as possible,” imply the quality of due diligence in the prosecution of the thing undertaken without unreasonable and unnecessary delay, and thus, a promisor should not be heard to urge that such expressions will foreclose a promisee from insisting upon a reasonable application as to the element of time for such performance.

The judgment of the trial court is reversed and the cause remanded with directions to overrule appellee’s motion to dismiss the complaint.

jReversed and remanded with directions.


author: Mr. Justice Dove

text:
    William Johnson, Appellee, v. Harri Turner et al., Appellants.
    Gen. No. 9,835.

      Opinion filed April 28, 1943.
    Rehearing denied June 23, 1943.
    Dixon, Devine, Bracken & Dixon, of Dixon, for appellants ; Robert L. Bracken, of Dixon, of counsel.
    Mark C. Keller and Warner & Warner, all of Dixon, for appellee; Mark C. Keller and Henry C. Warner, both of Dixon, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

This case involves the construction of section 29 of the Workmen’s Compensation Act (Ill. Rev. Stat. 1941, ch. 48, par. 166 [Jones Ill. Stats. Ann. 143.44]). The issues are presented by an appeal from a judgment of the circuit court of Lee county for $5,000 in favor of appellee against appellants in a personal injury suit.

Appellants invoke the provisions of the second paragraph of the above mentioned section 29, on the ground that appellee’s employer was bound by the Workmen’s Compensation Act, and that appellants were not so bound. The pertinent portions of section 29 are the first two paragraphs thereof, which provide:

“Where an injury or death for which compensation is payable by the employer under this act was not proximately caused by the negligence of the employer or his employees, and was caused under circumstances creating a legal liability for damages in some person other than the employer to pay damages, such other person having also elected to be bound by this act, or being bound thereby under section three (3) of this act, then the right of the employee or personal representative to recover against such other person shall be transferred to his employer and such employer may bring legal proceedings against such other person to recover the damages sustained, in an amount not exceeding the aggregate amount of compensation payable under this act, by reason of the injury or death of such employee.

“Where the injury or death for which compensation is payable under this act was not proximately caused by the negligence of the employer or his employees and was caused under circumstances creating a legal liability for damages on the part of some person other than the employer to pay- damages, such other person having elected not to be bound by this act, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative.”

Appellee, a carpenter, was employed by-Mark D. Smith, a contractor. On October 4,1939, shortly after 4 o’clock p. m., in .company with Joseph Pagan, another.carpenter employed by Smith, they were riding-west on a public highway in Lee county, returning home in Smith’s automobile from work on the Bunnell farm, located about three and one-half miles south and nine and one-half miles east of Ashton. Smith was driving the car. Pagan was on the front seat with him, and Johnson sat on the right hand side of the rear seat. At the intersection of the highway mentioned with a north and south public highway, there was a collision between Smith’s car and a truck coming from the south, driven by Robert Greenfield. Pagan and Greenfield were knocked unconscious, Smith was killed, and Johnson was severely injured.

Appellee’s complaint named Robert Greenfield, Harri Turner, Florence Turner, Robert Turner and Charles R. Rice, as defendants. The complaint consisted of five counts. The first count charges general negligence in the operation of the truck. The second, third and fourth counts respectively charge separate violations of paragraphs (b) and (c) of section 49, and section 68 of the Motor Vehicles Act (Ill. Rev. Stat, 1939, ch. 95%, pars. 146, 165 [Jones Ill. Stats. Ann. 85.178, 85.197]). These charges are respectively that the truck was driven at a speed greater than was then and there reasonable and safe, having regard to the traffic and the use of the way; approaching and attempting to cross the intersection without decreasing the speed of the truck; and a failure to give the right of way to Smith’s car, approaching from the right. The fifth count, charging wilful and wanton misconduct, was later stricken on appellee’s motion.

The first count of the complaint alleges, among other things, that the plaintiff was a passenger in a certain passenger automobile owned and driven by Smith in a westerly direction along the public highway approaching the intersection above mentioned; that Smith was then and there and at all times thereinafter mentioned in the exercise of due care for his own safety and for the safety of the plaintiff and for the safety of all persons and property lawfully then and there upon and using said public highway; that Greenfield was then and there driving a truck registered in the name of Robert Turner; that the truck was owned by the defendants Harri Turner, Florence Turner and Robert Turner, or one or more of them, and was then and there being driven by Greenfield as an employee in the course and conduct of a business enterprise or partnership then being conducted by and on behalf of Harri Turner, Charles R. Rice, Florence Turner and Robert Turner, or by one or more of them, in the business of buying and selling livestock and lending money for the purchase thereof; that said truck was then and there being driven in a northerly direction upon the highway running north and south, and approaching the intersection mentioned from a southerly direction; and that Greenfield was then and there the employee and agent of the partners aforesaid in the operation of the truck. Bach count realleges these allegations, which will be hereinafter further noticed.

The defendants answered the complaint, denying each allegation of each count. Robert Turner being a minor, the court entered an order appointing a guardian ad litem for him, with leave to adopt the answer of the other defendants.

. An amendment to the answer was filed, setting out that at the time and place of the alleged injuries the plaintiff was an employee of Smith, who was a general contractor subject to the terms of the Workmen’s Compensation Act, being sections 17 to 39.9 both inclusive, thereof; that plaintiff was then and there in and about his duties as such employee, and was subject to and chargeable with any negligence on the part of Smith, which in any way contributed to the alleged injuries; and that should there be any recovery in this case, Smith is entitled to be first paid for any sums paid to.the plaintiff or on his behalf, pursuant to the terms of the statute mentioned.

The suit was dismissed as to Florence Turner and Charles R. Rice on appellee’s motion, and the cause was tried by a jury, which disagreed and was discharged. Thereafter, the above mentioned amendment to the answer was stricken on appellee’s motion,-and subsequently, further amendments to the answer were successively filed. They embrace the same allegations as the stricken amendment, with additional allegations that at the time and place of the alleged injuries the plaintiff was subject to the orders and directions of Smith, and was in and about his duties in the course of his employment as such employee; that the defendants or either of them were not subject to the terms and provisions of the Workmen’s Compensation Act, and are not persons contemplated by section 29 thereof, against whom a cause of action may be maintained for injuries received by workmen whose employers are subject to the terms of the act; that the plaintiff is subject to and chargeable with any negligence on the part of Smith, and that it is provided by section 29 of the act that before the plaintiff can effect a recovery in this case he must affirmatively establish that his injuries were not proximately caused by the negligence of his employer; that pursuant to the terms of the act, Smith paid the plaintiff workmen’s compensation for his alleged injuries in the amount of $412.50, having procured workmen’s compensation insurance from the Maryland Casualty Company, who has made demand in writing on the defendants for the amount of compensation paid to the plaintiff, out of any moneys that might be recovered in this cause. These amendments were stricken in the order of their filing, on appellee’s successive motions, and the cause was tried on the complaint and the original answer.

In addition to striking the amendments, the court instructed the jury that the negligence, if any, of appellee’s employer, could not be attributed to appellee. The case, therefore, was tried on the theory that section 29 of the act does not apply which was in accord with appellee’s contention. Appellants claim that the rights of the parties are governed by section 29; that appellee is chargeable with the negligence, if any, of his employer, and that he cannot recover without establishing that his injuries were not proximately caused by his employer’s negligence; and that by the striking of the amendments appellee was relieved of complying with that requirement, and appellants were deprived of the right to offer any proof on that question. The action of the trial court in striking the amendments is the only ground urged for reversal.

Counsel for appellee argue that appellants ate not within either of the classes of other persons mentioned in section 29, as persons bound by the act or persons who have elected not to be bound thereby, and are not, therefore entitled to invoke its provisions. Our decision in Agar Packing & Provision Co. v. Becker, 301 Ill. App. 237, is cited and relied upon. That suit was instituted by an employer of a deceased employee against a farmer, to recover compensation which the employer had paid to the decedent’s widow, the decedent having been killed as a result of an automobile collision between the automobile he was driving and one being driven by Frank Becker, the defendant. Our decision in that case was based upon the fact that the defendant was a farmer, and expressly exempted from the operation of the Compensation Act by the proviso to section 3 thereof and we held he was not liable in an action instituted under section 29 by an employer of á deceased employee who was under the provisions of the act. Our expressions in that case applied to the particular facts then before us.

In an effort to apply the holding in the Becker case to the case at bar, appellee claims that the testimony of Greenfield, that he had been hauling sheep to Clarence Hart’s farm, shows the defendants were exempt from the terms of the act by the proviso to section 3. The proviso mentioned reads: “Provided, nothing contained herein shall be construed to apply to any work, employment or operations done, had or conducted by farmers and others engaged in farming, tillage of the soil, or stock raising, or to those who rent, demise or lease land for any such purposes, or to anyone in their employ or to any work done on a farm or country place, no matter what kind of work or service is being done or rendered. ’ ’ ■

Greenfield testified he delivered some sheep which belonged to Harri Turner, to the Hart farm, and was told to go there by Robert Turner. Appellee’s complaint alleges the defendants were engaged in the business of buying and selling livestock and lending money for the purchase thereof. This allegation does not place appellants or their business within any of the activities mentioned in the proviso, but is entirely consistent with the conducting of a mercantile or brokerage business having no connection with any of such activities, and the mere delivery of sheep to a farm at the direction of one of such parties is obviously not within the terms of the proviso. The Becker case is not controlling here.

While our Supreme Court has not had before it the precise question of whether section 29 embraces among such other persons those who are omitted from the terms and provisions of the act, as well as such third persons as are without the act by an affirmative election, it has in several cases treated such persons who are merely omitted from the terms of the act as embraced in section 29 and decided the issues on that theory. These cases are reviewed in City of Chicago v. Pizel, 315 Ill. App. 216, where the Appellate Court for the first district decided the precise issue contrary to the contention of appellee, quoting the following excerpts from the cases mentioned:

Goldsmith v. Payne, 300 Ill. 119, 122: “But if the person, other than the employer, so liable for damages is not bound by the provisions of the act, then legal proceedings may be brought against such other person by either the employer or the injured employee.”

O’Brien v. Chicago City Ry. Co., 305 Ill. 244, 253: “Where the person causing the injury was not subject to the provisions of the act his liability as it existed before the act was not affected, but the injured employee’s employer should be subrogated to his employee’s right to the extent of the compensation paid or to be paid under the act.” And the same case at page 256: “While the right of action against the person negligently causing an injury who is not bound by the provisions of the act is unaffected by it, the employer who is free from negligence is entitled to indemnification from the proceeds of such cause of action for the compensation he is bound to pay, and the cause of action may be prosecuted in the name of either the employer or the employee, but in either case is for the benefit of both, in accordance with their respective rights.”

Baker & Conrad, Inc. v. Chicago Heights Const. Co., 364 Ill. 386, 396: “Passing to section 29, it was obviously the intention of this section that in those cases where the compensation for injuries had been paid by some employer, . . . and the injury or death was caused by the negligence of some third person either within or without the act and not by the negligence of such employer, such ‘ employer shall be subrogated to the rights of the employee or his legal representative.’ ”

Huntoon v. Pritchard, 371 Ill. 36, 44: “The purpose of section 29, supra, is to require the indemnification of the employer who is without fault out of the money recovered from a negligent third person. Where such third person is under the act his liability is limited to the amount of compensation paid, but where, as here, he is not under the act, the common law liability still exists and is unrestricted in amount . . . Section 29 has as its object the reimbursement of the employer where he is compelled to pay compensation as a direct result of the negligence of another. In this case the employer had to pay, in addition to compensation for the original injury, an additional amount to cover the aggravation caused by appellee’s malpractice. To adopt appellee’s construction would deprive the employer of his right of subrogation and confer upon appellee a benefit to which he is in no way entitled. ’ ’

In Thornton v. Herman, 380 Ill. 341, 344, the court said: “Section 29 divides negligent third parties into two classes, namely: those that are bound by the act and those that are not.”

We think, as held by the court in the Pisel case, supra, that it is quite clear the intention of legislature was to leave third parties, who by their negligence brought about an injury, responsible to the employee injured, and to the employer, who, without fault of himself or his employees, was required to pay out money by reason of such negligence. The provisions of the act are to be liberally construed. (Ervin v. Industrial Commission, 364 Ill. 56, 60; Baker & Conrad, Inc. v. Chicago Heights Const. Co., supra, 394.) Courts are not confined to the letter of the statute when such words are not within the intention, and such words may be modified or altered to obviate all inconsistency with such intention. (Uphoff v. Industrial Board, 271 Ill. 312; Hoyne v. Danisch, 264 Ill. 467; Faber v. Industrial Commission, 352 Ill. 115.) Our conclusion is that third persons omitted from the provisions of the act are embraced within the provisions of the second paragraph of section 29, the same as third persons who are without the terms of the act by an affirmative election.

This leaves for consideration the question of whether, under the theory of appellants, above mentioned, the trial court erred in striking the amendments to their answer.

In Huntoon v. Pritchard, supra, citing O’Brien v. Chicago City Ry. Co., supra, and Goldsmith v. Payne, supra, the court said in the opinion: “The provisions of this section (29) apply only to the right of the employee against his employer and have no reference to the liability of third persons causing injury to the employee, . . . The purpose of section 29, supra, is to require the indemnification of the employer who is without fault out of the money recovered from a negligent third person. Where such third person is under the act his liability is limited to the amount of compensation paid, but where, as here, he is not under the act, the common law liability still exists and is unrestricted in amount.”

O’Brien v. Chicago City Ry. Co., supra, is a leading case in this State, frequently cited and quoted. The record was twice reviewed by the Appellate Court for the first district, and twice by the Supreme Court, in* the following chronological order: 216 Ill. App. 115, 293 Ill. 140, 220 Ill. App. 107, and 305 Ill. 244. In that case the plaintiff, an employee of the city of Chicago, sued the railway company for damages on account of injuries incurred by being struck by a street car while the plaintiff was engaged in excavating in and maintaining a highway. This brought the employer and the employee within the provisions of the Workmen’s Compensation Act. The defendants had elected not to be bound by the act. After the cause was in the Supreme Court the first time, the plaintiff filed four additional counts to the declaration and dismissed the original counts. The trial court sustained demurrers to the first two additional counts and overruled demurrers to special pleas of the statute of limitations to the third and fourth additional counts.

In the opinion in that case the court analyzes several of its prior holdings construing section 29, and summarizes those holdings in the following language: “From these eases it appears that we have held (1) that the common law right of action of an employee against his employer for negligently injuring him in the course of his employment is abolished; (2) that the common law right of action of an employee against any other person than his employer for negligently injuring him in the course of his employment where such other person is bound by the provisions of the Workmen’s Compensation Act is abolished; (3) that the common law right of action of an employee against any other person than his employer for negligently injuring him in the course of his employment where such other person is not bound by the provisions of the Workmen’s Compensation Act is not affected by the act but is preserved in its full extent to the employee; (4) while the right of action against-the person negligently causing an injury who is not bound by the provisions of the act is unaffected by it, the employer who is free from negligence is entitled to indemnification from the proceeds of such cause of action for the compensation he is bound to pay, and the cause of action may be prosecuted in the name of either the employer or the employee, but in either case is for the benefit of both, in accordance with their respective rights; (5) that in cases of negligent injury caused by a person not bound by the act, the injured employee is not put to his election between compensation under the statute and damages at common law but may prosecute the common law action and the statutory claim for compensation at the same time.” On page 262 of the opinion it is further said: “No injustice is done to a person negligently injuring another in requiring him to pay the full amount of damages for which he is legally liable without deducting for compensation which the injured person may receive from another source which has no connection with the negligence, whether that source is a claim for compensation against his employer, a policy of insurance against accidents, a life insurance policy, a benefit from a fraternal organization or a gift from a friend.”

Under the above holdings, it is manifest that what, if anything, an employer can recover under section 29, comes out of what the employee recovers from the third party. The amount the employee recovers from the third party is measured by the liability of the third party to him, regardless of whether his employer is or is not entitled to reimbursement or indemnification out of the money. It is of no consequence to the third party whether the employer receives any part of it or not. The third party’s liability is not affected thereby, and the matter of whether the employer is reimbursed is a matter wholly between him and the employee.

In the O’Brien case, supra, after the five point summary of prior holdings, the opinion then goes on to say: “In accordance with these propositions the cause of action alleged in any of the counts in this case was not affected by the Workmen’s Compensation Act. The ordinary action on the case for negligence was the proper form of action and the usual declaration in such cases was a sufficient statement of the case. The additional counts were not necessary, and the allegation that the plaintiff’s injuries were not proximal ely caused by the negligence of the city or any of its employees was surplusage, as well as the allegation that the defendants had elected not to be bound by the provisions of the Workmen’s Compensation Act. The plaintiff’s right of action was not founded on the Workmen’s Compensation Act but on the common law, and if the defendants had any defense under that act it was incumbent on them to plead it, or if it was admissible under the general issue it might be proved without a special plea. It was not incumbent on the plaintiff to anticipate it and meet it by a denial or avoidance. The various counts all stated the same cause of action, and the demurrers to them should have been overruled and those to the pleas of the statute of limitations should have been sustained.”

The complaint in the instant case alleges due care of appellee’s employer, and negligence of appellants as the proximate cause of the accident and the resulting injuries to appellee. These allegations are traversed by the answer, and under the holding in the O’Brien case, this made a complete issue. The allegation of due care of appellee’s employer negatives his negligence being the proximate cause of the injuries. If appellants desired to prove that he was in fact guilty of negligence which was the proximate cause of .or contributed to the injuries, or that appellants were not guilty of negligence, evidence 'in support of any such facts was admissible under the issues made by the complaint and the original answer, and appellants were not deprived of any defense in that respect by the striking of the amendments to the answer.

We cannot agree with the contention of appellants that appellee is chargeable with any negligence of his employer. The doctrine of imputed negligence has been, except in limited classes of cases, repudiated by most courts of this county. One of the excepted classes is, that if appellee and the driver of the car had been engaged in a joint enterprise, the negligence, if any, of the driver, in the operation of the car in which they were riding, would be imputable to appellee. (Grubb v. Illinois Terminal Co., 366 Ill. 330.) As a general rule, it may be said that in order to impute the negligence of one person to another, there must exist between them some relation of master or superior and servant or subordinate or other relation akin thereto. The relation between them must be one invoking the principles of agency, or the persons must be cooperating in a common or joint enterprise, or the relation between the parties must have been such that the person to whom the negligence is imputed must have had a legal right to control the action of the person actually negligent. Negligence in the conduct of another will not be imputed to a party if he did not authorize such conduct, participate therein, or have the right or power to control it. (38 Am. Jur., Negligence, page 921, sec. 235.) The same authority, on page 939, sec. 248, says: ‘ The negligence of an employer who is driving a vehicle is not imputable to an employee who is occupying the vehicle and is about the business he is hired to do. He does not have charge of the vehicle and cannot direct its operation. ’ ’

In Buckler v. City of Neivmcm, 116 Ill. App. 546, it is held that the test of the responsibility of a passenger for the negligence of the driver of a vehicle in which he is riding, causing an injury to the passenger, depends on whether the passenger had the right of control over the driver so as to constitute the relation of master and servant between them.

There is nothing in the Workmen’s Compensation Act which changes, modifies or affects these principles in an action between an employee of an employer bound by the act and a third person not bound by the act. The action being the same common law action, as between such employee and such third person as it existed before the passage of the Workmen’s Compensation Act, these principles are applicable here. Particularly so, as the allegation in the amendments to the answer, that at the time and place of the alleged injuries appellee was an employee of Mark D. Smith, his employer, subject to the orders and directions of-such employer, show that the transaction was not a joint enterprise, but was that of employer and employee. Hence, any negligence of appellee’s employer was not attributable to appellee, and the liability or nonliability of appellants being determinable under the common law, the issues resolve themselves into the question of whose negligence was the proximate cause of appellee’s injuries.

As to the claim that before appellee can recover in this case he must affirmatively establish that his injuries were not proximately caused by the negligence of his employer, we note the rule laid down in Storen v. City of Chicago, 373 Ill. 530, 533: “Where two or more persons, under circumstances creating primary accountability, directly produce a single, indivisible injury by their concurrent negligence, they are jointly and severally liable, even though there is no common duty, common design or concerted action. (1 Cooley on Torts (4th ed.) p. 276ff, sec. 86; 62 Corpus Juris, (Torts,) sec. 45.) If, however, a negligent act or omission does nothing more than furnish a condition making an injury possible, and such condition, by the subsequent act of a third person, causes an injury, the two acts are not concurrent and the existence of the condition is not the proximate cause of the injury. (Seith v. Commonwealth Electric Co., 241 Ill. 252.) ”

It is obvious that the accident in this case cannot be classified under the second division of the rule. It is equally obvious that the occurrence arose out of concurrent acts of the drivers of the two vehicles, and that the negligence of one or both of them produced the injuries. The liability of appellee’s employer for appellee’s injuries is fixed and limited by the Workmen’s Compensation Act, regardless of any question as to the employer’s negligence. Under the holding in the O’Brien case, supra, the liability of appellants, if any, is still determined as at common law. If the drivers of both vehicles were guilty of concurrent negligence which produced appellee’s injuries, then under the first division of the rule above mentioned, appellants and appellee’s employer would both be liable, from which it follows that in such a case the liability of appellants would be unaffected by the negligence of appellee’s employer, and it would not be incumbent upon appellee to establish that his employer’s negligence was not the proximate cause • of the injuries he sustained. The question of whose negligence was the proximate cause of those injuries was a question of fact to be determined by the jury from the testimony, under appropriate instructions from the court.

In support of their contention, appellants rely upon a holding in the O’Brien case when it was before the Supreme Court the first time (293 Ill. 140). The trial court had instructed the jury: “You are instructed that the fact, if it be a fact, that plaintiff’s foreman was guilty of negligence which contributed to his injury is no defense to this suit, provided you further find from the evidence that plaintiff did not in any manner cause, induce or contribute to said negligence, if any, on the part of said foreman.” The Supreme Court, in passing on this instruction, said: “Under the case made by the declaration defendants had a right to the benefit of any facts and circumstances that would tend to show that the negligence of others, and not their negligence, was the proximate cause of the injury. This instruction deprived them of that right, and the giving of it constituted reversible error. ’ ’ The holding does not sustain the contention of appellants. Its effect is to confirm the proposition above set out that if appellants desired to prove that appellee’s employer was guilty of negligence which was the proximate cause of or contributed to appellee’s injuries, evidence in support of such fact was admissible under the original pleadings, and it in no way indicates that the amendments to the answer were necessary or proper.

East St. Louis Junction R. Co. v. Armour & Go., 247 Ill. App. 528, also relied upon by appellants, was a suit under section 29 of the Workmen’s Compensation Act, by the railroad company, to recover the compensation which had been awarded to its injured employee, on account of-injuries alleged to have been caused by the negligence of the defendant packing-company in placing a sheet of iron over two pipes which extended over a switch track, the sheet of iron becoming dislodged by the exhaust of a switch engine, and falling upon and injuring the employee of the railroad company. The court said in the opinion, that the question of whether the exhaust from the switch engine was the proximate cause of the injury was a question of fact for the jury, and that evidence that the switch track was usually slippery was competent. That holding is subject to the same interpretation as the holding in the O’Brien case last mentioned.

Botthof v. Fenske, 280 Ill. App. 362, was a common law action by one employee against a fellow employee of their common employer, for damages on account of personal injuries. Both parties and the employer were under the Workmen’s Compensation Act. The defendant claimed the provision of section 29 that where an injury “was not proximately caused by the negligence of the employer or his employees” precluded any intendment that a common law action would lie for negligence or wilful conduct by one employee against a fellow employee. In response to this claim the court,said: “We find no merit in this contention. In our opinion, the foregoing italicized language was intended to be applicable only to actions brought against third persons under section 29, where it was necessary to show, in order to establish a right to recover, that the compensating employer and his employees were not guilty of contributory negligence. It appears to us that the purpose of this language was to negative the right to bring an action for damages to an injured employee, even against a negligent third party, by either the compensating employer or the injured employee who is guilty of contributory negligence or properly or legally chargeable with the negligence of others contributing to the injury. . . . It would be paradoxical to hold that an employee who was injured through the wilful, wanton or negligent conduct of a fellow employee could not sue his injuring fellow employee unless he could first show that his injury was not proximately caused by the negligence of such fellow employee.”

At first glance it might appear that this language of the court tends to uphold the contention of appellants, but when analyzed, it is apparent, from the conclusion reached, that the second sentence of the holding was not meant to be applied to the injured employee. The third sentence, as to contributory negligence, obviously refers, respectively, to contributory negligence of an employer in a suit by him, or to contributory negligence of an employee in a suit by such employee. The words: “or properly or legally chargeable with the negligence of others contributing to the injury,” bring the holding within the text hereinabove quoted from 38 Am. Jur., and we do not think the court intended a holding out of harmony therewith.

In Moscarelli v. Sheldon, 247 Ill. App. 352, relied upon by appellee, the administrator of a deceased employee of the city of Rockford brought an action against a third party for his wrongful death by being struck by the third party’s automobile while the decedent was engaged in working in a ditch being excavated in a public street. A special plea was filed alleging the deceased and the city were subject to the Workmen’s Compensation Act; that the defendant was not under the act, that the death was proximately caused by the negligence of the city in not barricading the excavation or giving some notice or warning thereof. A demurrer was sustained to this plea, and to an amended plea substantially the same as the original. Four refused instructions were tendered upon the theory that negligence on the part of the city constituted a defense which should have been submitted to the jury under section 29 of the act. In affirming a judgment for the plaintiff, this court, speaking through the late Mr. Justice Jones, said in the opinion: ‘ ‘Appellant claims that the city was negligent in not barricading the excavation and in not giving some warning of its existence. If the preponderance of the evidence showed that appellant was guilty of the negligence alleged in the declaration; that such negligence was the proximate cause of the death, and that the deceased was in the exercise of due care, then appellant was liable regardless of the negligence of the city.” We agree with that holding.

Under the law as hereinbefore set out, the negligence, if any, of appellee’s employer, not being imputable to appellee, he was not chargeable therewith, and it was not incumbent upon him in order to recover, to affirmatively establish that his injuries were not proximately caused thereby. It follows that the court did not err in striking the amendments to the answer.

There is a matter, however, which, although not raised by appellants, requires a reversal of this judgment as to defendant Robert Turner. It was alleged and proved by appellee that Robert Turner is the owner of the truck alleged to have caused appellee’s injuries and he is the only one who directed Greenfield to deliver the sheep. It was also alleged that Greenfield, the driver of the truck, was the agent and employee of the other defendants, and was operating the truck as such agent and employee at the time of the collision. Appellee’s whole case, and the judgment against appellants, Harri Turner and Robert Turner, is based upon the ground of respondeat superior. Robert Turner was a minor. The rule is that as a minor cannot make a contract, he cannot establish the relationship of master and servant or principal and agent, and so cannot be held liable for the tort of another under the doctrine of respondeat superior. (Palmer v. Miller, 380 Ill. 256, 259.) A minor is the ward of the court and the court owes him the duty of properly protecting his rights. (Millage v. Noble, 334 Ill. 315, 320; Swiney v. Womack, 343 Ill. 278.) The court on its own motion will protect the rights of infants where they are entitled to relief, even though the guardian ad litem fails to do so in their behalf. (Mason v. Truitt, 257 Ill. 18, 25; Severy v. McDougall, 190 Ill. App. 193.) The judgment, therefore, against Robert Turner cannot stand. The defendant Harri Turner was the owner of the sheep which had been delivered by Robert Greenfield in Robert Turner’s truck. He made no defense on the ground of respondeat superior and his only ground for reversal is that the circuit court erred in striking appellant’s amendments to his answer. The judgment as against him and Robert Greenfield will therefore be affirmed.

Under the authorities (Minnis v. Friend, 360 Ill. 328; Crane v. Railway Express Agency, 369 Ill. 110; DeMay v. Brew, 317 Ill. App. 183) the judgment appealed from is not a unit. As against Robert Turner it is reversed and as to the other appellants Robert Greenfield and Harri Turner, it is affirmed.

Affirmed in part and reversed in part.


author: Mr. Justice Wolfe

text:
    Anna Brassard Muir, Appellee, v. Anna Mierwin et al., Appellants.
    Gen. No. 9,807.

      Opinion filed April 28, 1943.
    Rehearing denied June 23, 1943.
    Samuel H. Shapiro, of Kankakee, for appellants.
    C. M. Granger, of Kankakee, for certain appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.

Anna Mierwin of Kankakee county, Illinois, for a consideration of one dollar, conveyed and warranted to her eight children, certain real estate in Kankakee county, Illinois. The deed was made subject to a certain mortgage, which she made chargeable against the share of four of the grantees. The first was against John Mervin, and if his share should not be sufficient to take care of the incumbrances, then Frank Mervin’s share should be chargeable for the deficiency, and if his share should not be sufficient to take care of the deficiency,, the share of George Mervin should be chargeable with said deficiency, and if all of these are not sufficient to take care of the deficiency, then any deficiency shall be a charge against all of the grantees. Under a decree of foreclosure, the property was sold for more than the amount of the mortgage,, and the master in chancery had $1,202.03 to pay to the owners of the property. About'eleven and one-half months after the property was sold by the master in chancery, under the mortgage foreclosure, three of the grantees of the deed paid to the master in chancery, $386.95 each, in an-attempt to redeém their interest in the real estate from the mortgage foreclosure.

At the foreclosure sale, Mary E. Novack and Stella Wilken were the successful bidders, and a certificate of purchase was issued to them by the master in chancery. These parties objected to the owners of the property redeeming their proportionate share of the same, and so notified the master in chancery. Mary Novack and Stella Wilken filed a motion in the foreclosure suit in the circuit court asking that the court compel the master in chancery to issue a deed to them according to their certificate of purchase. The case was heard before the court who ordered the master in chancery to execute and deliver to Mary E. Novack and Stella Wilken, a deed conveying the premises involved in the foreclosure suit, upon their payment of the statutory fees. It is from this decree that the three grantees in the deed, who had attempted to redeem their proportionate part of the premises, have perfected an appeal to this court. It is insisted by the appellee in the case that a freehold is involved in this suit, and therefore the appeal is not proper in this court, and should be dismissed. Whether a freehold was involved in a case was before the Supreme Court, in the case of Harper v. Sallee, 372 Ill. 199. On page 203, we find this language: “ The decree also directed the master to issue to plaintiff a deed to the two-thirds interest, upon surrender of the certificate of redemption and, further, ordered defendant to pay to plaintiff within thirty days one-third of the redemption money, less a credit for rents, and, in default of such payment, a sale of her one-third interest. Defendant appeals directly to this court and plaintiff has prosecuted a cross-appeal from the portion of the decree adverse to him.'

“A freehold is involved where either the necessary result of the judgment or decree is that one party gains and the other loses a freehold estate, or where the title to a freehold is so put in issue by the pleadings that the determination of the case necessarily requires a decision with respect to the ownership of the real estate in controversy. (Swinson v. Sodaman, 369 Ill. 442; Wright v. Logan, 364 id. 33; Lennartz v. Boddie, 304 id. 484; Burroughs v. Kotz, 226 id. 40.) For this court to entertain jurisdiction of a direct appeal upon the ground that a freehold is involved, the freehold must be directly, and not collaterally, contingently or incidentally involved. (Kagy v. Luke, 357 Ill. 512.) Here, the question of title, if any, is only incidental or collateral to the right to redeem from the foreclosure sale.” The holder of the certificate of purchase had certain rights arid during the period of redemption, the title remains in the owner of the mortgaged property, and the certificate holder is vested with no title, either legal or equitable and has, only the alternative right to receive the redemption money, or if no redemption js.pnade, to receive a deed, — Hruby v. Steinman, 374 Ill. 465, 471. It is our conclusion that there is no freehold involved in this suit, and the appeal is properly brought to this court.

Section 26, ch. 77, Smith-Hurd’s Ann. Stats. [Jones Ill. Stats. Ann. 107.177], provides as follows: “Any joint owner, his executors, administrators or assigns, or a decree or judgment creditor of such joint owner, may redeem the interest of such joint owner in the premises sold on execution or decree, in the manner and upon the conditions hereinbefore provided, upon the payment of his proportion of the amount which would be necessary to redeem the whole. (As amended by act approved* June 27, 1921.)” The appellants insist that under the terms of this statute, they were permitted to redeem their proportionate shares in the mortgaged premises. The case of Schuck v. Gerlach, 101 Ill. 338 decides this question and it is there stated: “It is claimed that redemption could not be made of an undivided interest, — that the whole sum for which the land sold, with interest, should have been paid, in order to effect a redemption. The position of appellant on this point, under the statute of 1845, would no doubt be correct, as held in Hurley v. Davis, 69 Ill. 133; but under our present statute a joint owner of land sold may redeem whatever interest he has in the land sold, upon payment' of his proportion of the amount which would be necessary to redeem the whole.” This case is cited and approved in Nudelman v. Carlson, 375 Ill. 577. In the case of Harper v. Sallee, 376 Ill. 540, Harper claimed that he was compelled to redeem, en masse, and the court, in discussing his contention, uses this language: “Harper says he was compelled to redeem en masse, because this was the manner in which the property was sold under the foreclosure of the first mortgage. Section 26 of the Judgments act (Ill. Rev. Stat. 1939, ch. 77, par. 26 [Jones Ill. Stats. Ann. 107.177]) permits any joint owner or a decree or judgment creditor of such joint owner to redeem the interest of the debtor from an execution or decree sale, by payment of the proportionate amount which would be required to redeem all of the land sold. Under this section redemption of an undivided interest is permissive.”

It is insisted by the appellees, that although the appellants may have had the right to redeem their interest in the mortgaged premises, they did not comply with the statute, and pay to the master their proportionate amount of the indebtedness and foreclosure costs, therefore they are barred from their right of redemption. Three hundred eighty-six dollars and ninety-five cents was actually paid by each of the plaintiffs and according to the appellee’s figures, there should have been paid $390.32 and a master’s fee of two dollars as a recording fee. When the master accepted the payment of $386.95 from each of the appellants, he did not refuse to let the plaintiffs redeem their property because of an insufficient, or improper tender, but on the theory that the appellants had no right to redeem. We find nothing in the abstract or record in this case to show that the question of whether the appellants had tendered a sufficient amount to redeem their property was ever raised in the trial court. Redemption, although a statutory privilege, is to be exercised in a substantial compliance with the statute, and is looked upon with favor, and unless an injury is to result, a liberal construction will be given to the redemption laws. The purpose of redemption is to benefit the debtors by offering them an opportunity to obtain payment for their judgment. (Hruby v. Steinman, supra.) There is no dispute that the master in chancery had in his hands over $100 that should be distributed to each of the appellants under the terms of the foreclosure decree. This is a suit in equity and equitable principles should prevail. Under the statute the appellants had a clear- right to redeem their proportionate share of the mortgaged premises, and upon the tender of the proper amount, should be given that privilege, and if the proper amount was not tendered to the master, his refusal should have been based upon that ground, so that the proper amount could be tendered at that time.

It is our conclusion, that the trial court erred in decreeing that a deed should be issued to the holders of the certificate of purchase, and in denying the appellants the right to redeem their proportionate shares of the mortgaged property. The case is reversed.

Reversed.