author: Mr. Justice Wolfe

text:
    Charles Kelly, Appellant, v. Gustaaf Huyvaert and Marguerite Huyvaert, Wife, Appellees.
    Gen. No. 9,968.
    Opinion filed September 19, 1944.
    Sherwood L. Costigan, of East Moline and Bell, Farrar & Scott, of Rock Island, for appellant; Sherwood L. Costigan, of East Moline and Earl L. Scott, of Rock Island, of counsel.
    Kenworthy, Harper, Sollo & Graham, of Moline, for appellees; R. G. Graham, of Moline, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

Charles Kelly, the appellant, started a suit in the circuit court of Bock Island county, against Gustaaf Huyvaert and Marguerite Huyvaert, husband and wife, to recover damages he sustained through a fall on an ice-covered sidewalk on the premises of the defendants where they maintained and operated a lunchroom and tavern.

In substance, the complaint is as follows: It charges in paragraphs 1, 2 and 3 thereof, that at the time the accident happened the defendants operated, controlled and maintained a tavern, lunchroom and dance hall at the intersection of .First avenue and First street in the City of Silvis, Illinois, together with a parking lot immediately to the north of, and adjacent to said building; that the general public was expressly and impliedly invited to make use of said parking lot; that on said parking lot and immediately to the north of, and adjacent to said building there was a concrete sidewalk about three feet in width, which was used by guests and patrons of the defendants to reach a door leading into said tavern, which door was located on the north side of said building.

The complaint, in paragraphs 4, 5 and 6 thereof, charges in substance and among other things, that it was the duty of the defendants to keep said concrete sidewalk and parking lot in a good and safe condition and repair; that on January 15, 1943, the date of the accident, the sidewalk and parking lot were uneven and full of holes which were covered with ice, snow and sleet and were in a dangerous and unsafe condition and had been in such dangerous and unsafe condition for a long space of time prior to the date aforesaid, of which condition the defendants had notice, or by the exercise of due diligence could or should have had notice; that on January 15, 1943, the plaintiff went upon the premises of the defendants for the purpose of transacting business with, and as a guest of, the said defendants, and on departing from said building and while walking upon and using said concrete sidewalk slipped and stumbled and while falling struck his right wrist upon and against the metal license plate on a car parked near to said sidewalk and was thereby injured; by reason of Ms injuries he was compelled to and did expend large sums of money in endeavoring to be cured, suffered loss by reason of being unable to work at his employment and suffered great pain and suffering, for wMch he claimed damages in the sum of $1,500.

The answer of the defendants admits the ownership, maintenance and operation of the business and premises as charged in paragraphs 1, 2 and 3 of the complaint, but denies each and all of the other allegations of the complaint.

The case was tried before a jury and at the conclusion of the plaintiff’s evidence, the defendants filed their motion for a directed verdict, and presented such an instruction. The court gave the jury the instruction, and they returned their verdict for the defendants. Judgment was rendered in favor of the defendants and costs of suit assessed against the plaintiff. The plaintiff entered a motion for a new trial, which motion was overruled by the court. From the judgment in favor of the defendants, the plaintiff has perfected an appeal to tMs court.

The appellant now urges that the trial court erred in taMng the case from the jury and in directing a verdict for the defendants, as he insists that the evidence was sufficient to go before the jury for their consideration. The appellees contend that the statement of the court in overruling the plaintiff’s motion for a new trial in which he states that the plaintiff in his complaint, charges the defendants with negligently maintaining the grounds surrounding the tavern, and allowing holes and uneven places to exist, which were covered with ice and snow, which caused the accident and there is no evidence to sustain such charges, is a correct statement of the case. An examination of the complaint discloses that this is the main charge of negligence, as complained of by the plaintiff against the defendants, and the trial court properly held that the plaintiff wholly failed to sustain by the evidence, this charge of the complaint.

The evidence shows that the plaintiff went to the place of business of the defendants for the purpose of having his work check cashed, and for a lunch; that for the past three or four days the whole neighborhood surrounding the defendants’ place of business had been covered with a coat of sleet and ice several inches thick; that on the morning in question, the ice was covered with snow; that the plaintiff went into the defendants’ place of business and transacted his business and then left, and slipped on the icy sidewalk adjoining the defendants’ place of business and was injured. There is no question but that this icy condition had existed for several days, and that the plaintiff had knowledge of such condition. The appellant insists that it was the duty of the defendants to remove this ice, or to scatter cinders, sand or some substance on it, so as to avoid the slippery condition of the ice. Our attention has been called to no case wherein the property owner has been held liable when the icy condition had been general throughout the neighborhood and was not aggravated, or caused in any way by the property owner, but where the same had been caused by nature. Murray v. Bedell Co. of Chicago, 256 Ill. App. 247.

It is our conclusion that the trial court properly directed a verdict in favor of the defendants; and the judgment is hereby affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Justice Wolfe.

license: Public Domain

text:
    Robert Teece, Jr., by Robert Teece, His Father and Next Friend, Appellee, v. Martin Bieber, Appellant.
    Gen. No. 9,939.
    opinion filed July 20, 1944;
    rehearing denied October 4, 1944.
    Thomas J. Welch and Vera M. Binks for appellant; J. P. Wilamoski, James B. Young and Gregg A. Young, for appellee.
   Opinion by

Justice Wolfe.

Not to be published, in full.


text:
    People of State of Illinois ex rel. Lester F. Carson, Defendant in Error, v. Eli Cupi, Plaintiff in Error.
    Gen. No. 9,957.
    opinion filed July 20, 1944;
    opinion modified and rehearing denied October 3, 1944.
    John E. Dougherty and George W. Sprenger, for plaintiff in error; George F. Barrett, Attorney General and Lester F. Carson, State’s Attorney, for defendant in error; Roy P. Hull, of counsel.
   Opinion by

Justice Wolfe.

Not to be published in full.


text:
    Mary Saluto, Appellee, v. Publix Great States Theaters, Inc., Appellant.
    Gen. No. 9,960.
    opinion filed July 20, 1944;
    rehearing denied October 4, 1944.
    Cassidy, Sloan & Crutcher, for appellant; C. B. Ullrick, for appellee.
   Opinion by

Justice Wolfe.

Not to be published in full.


author: Presiding Justice Niemeyer.

text:
    Frank P. Burnett et al., Appellants, v. Mary E. Walzer et al., Appellees.
    Gen. No. 42,706.
    opinion filed September 11, 1944.
    John C. DeWolfe, Robert E. Dowling, Aaron Soble, Shaffer & Freedman and Ryan, Condon & Livingston, all of Chicago, for appellants; John C. DeWolfe and Aaron Soble, both of Chicago, of counsel; Campbell, Clithero & Fischer, of Chicago, for appellees; Delbert A. Clithero and Carlton L. Fischer, both of Chicago, of counsel.
   Opinion by

Presiding Justice Niemeyer.

Not to be published in full.


text:
    Helen E. Menten, Administratrix of Estate of Earl T. Menten, Deceased, Appellant, v. Illinois Publishing and Printing Company, Appellee.
    Gen. No. 42,966.
    opinion filed September 11, 1944.
    Owens & Owens, of Chicago, for appellant; Poppenhusen, Johnston, Thompson & Raymond, of Chicago, for appellee; Floyd E. Thompson and Adolf Loeb, both of Chicago, of counsel.
   Opinion by

Presiding Justice Niemeyer.

Not to be published in full.


text:
    William J. Pieczynski, Appellant, v. Stanley Pieczynski, Individually and as Executor of Estate of Pelagia Pieczynski, Deceased, et al., Appellees.
    Gen. No. 42,969.

      opinion filed September 11, 1944.
    Cloyes & Cavender, of Chicago, for appellant; Joseph F. Elward, of Chicago, for appellees.
   Opinion by

Presiding Justice Niemeyer.

Not to be published in full.


text:
    Chatfield Manor, Inc., Appellee, v. Sam Roseman, Appellant.
    Gen. No. 43,063.
    opinion filed September 11, 1944.
    Harry Shriman, of Chicago, for appellant; Henry H. Koven, of Chicago, for appellee; Louis E. Levinson, of Chicago, of counsel.
   Opinion by

Presiding Justice Niemeyer.

Not to be published in full.


author: Justice Matchett.

text:
    Frank Marshall, Appellee, v. Walter J. Cummings, Receiver, etc., et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 43,006.

      opinion filed September 11, 1944;
    rehearing denied September 25, 1944.
    Frank L. Kriete, Thomas M. Morris and Arthur J. Donovan, all of Chicago, for appellants; William J. Flaherty, of Chicago, of counsel; Miller & Moss, of Chicago, for appellee.
   Opinion by

Justice Matchett.

Not to be published in full.


text:
    Farm Food Stores, Inc., Appellant, v. Esther Wadler Miller, Appellee.
    Gen. No. 43,018.
    opinion filed September 11, 1944;
    rehearing denied September 25, 1944.
    Joseph Lustfield, of Chicago, for appellant; Ode L. Rankin, of Chicago, of counsel; Wetten, Pegler & Dale, of Chicago, for appellee; Milton Gerwin, of Chicago, of counsel.
   Opinion by

Justice Matchett.

Not to be published in full.


text:
    William Mazanec, Appellee, v. Robert A. Prosser, Appellant.
    Gen. No. 43,047.
    opinion filed September 11, 1944.
    Burt A. Crowe, of Chicago, for appellant; Thomas M. Morris, of Chicago, for appellee.
   Opinion by

Justice Matchett.

Not to be published in full.


author: Justice O’Connor.

text:
    Ella R. Hopkins, Appellant, v. Paul C. Loeber et al., Appellees. John G. Pross et al., Cross-Appellants.
    Gen. No. 42,974.

      opinion filed September 11, 1944;
    rehearing denied September 29, 1944.
    Shulman, Shulman & Abrams, of Chicago, for appellant; Meyer Abrams, of Chicago, of counsel; J. Edward Jones, of Chicago, for cross-appellant; J. Edward Jones, of Chicago, for appellees; Walter E. Wiles and George E. Q. Johnson, both of Chicago, for certain appellee; Boyle, Murphy & Nelson, of Chicago, for certain other appellee; Thomas E. Murphy and Robert C. Nelson, both of Chicago, of counsel.
   Opinion by

Justice O’Connor.

Not to be published in full.


text:
    Edmiers’ Motor Service, Inc., Appellee, v. Walter J. Cummings, Receiver, etc., et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 43,010.
    opinion filed September 11, 1944.
    Frank L. Kriete and Arthur J. Donovan, of Chicago, for appellants; William J. Flaherty, of Chicago, of counsel; Kamin, Gleason & Kamin, of Chicago, for appellee.
   Opinion by

Justice O’Connor.

Not to be published in full.


text:
    Floyd J. Stoner, Appellee, v. Herbert H. Stoner et al., Defendants. Herbert Stoner, Appellant.
    Gen. No. 43,023.
    opinion filed September 11, 1944.
    Eckhart, Klein, McSwain & Campbell, of Chicago, for appellant; Arnold D. McMahon, of Chicago, of counsel; Cohon & Goldstein, of Chicago, for appellee.
   Opinion by

Justice O’Connor.

Not to be published in full.


text:
    Lake View Trust and Savings Bank, Appellant, v. City of Chicago, Appellee.
    Gen. No. 43,032.

      opinion filed September 11, 1944.
    George P. Latchford, Jr., of Chicago, for appellant; Barnet Hodes, Corporation counsel, for appellee; J. Herzl Segal and L. Louis Karton, Assistant corporation counsel, of counsel.
   Opinion by

Justice O’Connor.

Hot to be published in full.


text:
    People of State of Illinois, Defendant in Error, v. Herman Mueller, Plaintiff in Error.
    Gen. No. 43,060.
    opinion filed September 11, 1944;
    rehearing denied September 25, 1944.
    Ray E. Lane, of Chicago, for plaintiff in error; Thomas J. Courtney, State’s attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Joseph A. Pope, Assistant state’s attorneys, of counsel.
   Opinion by

Justice O’Connor.

Not to be published in full.


author: Presiding Justice Dove.

text:
    Agnes M. Becker, Appellee, v. Frank Ketter, Appellant.
    Gen. No. 9,977.
    opinion filed September 19, 1944.
    Mortimer Singer and Esther C. Singer, for appellant; Ernest S. Gail, for appellee.
   Opinion by

Presiding Justice Dove.

Not to be published in full.


text:
    Edna May, Appellee, v. E. G. Marty, Appellant.
    Gen. No. 9,978.
    opinion filed September 19, 1944.
    Paul D. Perona, for appellant; Josef T. Skinner, for appellee.
   Opinion by

Presiding Justice Dove.

Not to be published in full.


author: Justice Huffman.

text:
    Edward A. Ellis, Appellant, v. Ralph Keeling, Appellee.
    Gen. No. 9,946.
    opinion filed September 19, 1944.
    George S. McGaughey, for appellant; Maximilian J. St. George, for appellee; Willis A. Overholser and Gerald C. Snyder, of counsel.
   Opinion by

Justice Huffman.

Not to be published in full.


text:
    Florence Smith, Conservator of Lester Smith, Incompetent, Appellee, v. Milk Wagon Drivers’ Union, Local No. 753 et al., Appellants.
    Gen. No. 9,959.
    opinion filed September 19, 1944.
    Joseph Sam Perry, for appellants; Edgar J. Elliott, of counsel; Rathje & Woodward, for appellee; John S. Woodward, of counsel.
   Opinion by

Justice Huffman.

Not to be published in full.


author: Mr. Justice Bristow

text:
    Norbert Hotz and Joseph A. Walter, Appellants, v. Alton Telegraph Printing Company and Paul B. Cousley, Appellees.
    Stone, J., dissenting.
    Opinion filed February 28, 1944.
    Rehearing denied October 25, 1944. Released for publication October 25, 1944.
    J. F. Eeck, of Edwardsville, for appellants.
    Green & Hoagland, of Alton, and Jesse R. Brown, of Edwardsville, for appellees; Kenneth F. Kelly, of Alton, of counsel.
   Mr. Justice Bristow

delivered the opinion of the court.

Appellants, as plaintiffs, filed their complaint against appellees, as defendants, for damages for publishing in the editorial column of a newspaper, two articles alleged to be libelous. Motion to dismiss the complaint was sustained. After the court ruled the plaintiffs to “plead over,” they elected to stand by their complaint. The suit was dismissed, with judgment for defendants in bar of the action and for costs. From this judgment, plaintiffs have appealed to this court.

The chief issue in the case is whether the allegations in the article or articles, either or both considered together, were libelous per se. Appellants, Norbert Hotz, county clerk of Madison county, and Joseph A. Walter, a justice of the peace in Edwardsville, with a third person, constituted the Madison county canvassing board for the 1942 general election. The appellee, Alton Telegraph Printing Company, published a newspaper in Alton, called the Alton Evening Telegraph. Appellee, Paul B. Cousley, was its managing editor. The first article concerning which complaint is made was published in the edition of said newspaper of November 5, 1942; and the second article was published therein on November 10, 1942.

The complaint alleged that the articles were false and defamatory, reflected upon the plaintiffs personally, and injured their reputation, to their damage. It alleged that plaintiffs were persons of good repute and name and deservedly held in high esteem in said county.

To determine whether a written statement is libelous per se, the words of the written or printed statement shall be considered in their ordinary meaning. Herrick v. Tribune Co., 108 Ill. App. 244, 246; White v. Bourquin, 204 Ill. App. 83, 94. The motion to dismiss in this case admits that the matter was published, that the words were false, and that they were maliciously published. Adair v. Timblin, 186 Ill. App. 133, 137; Wisher v. City of Centralia, 273 Ill. App. 168; Martin v. Mattoon Journal Co., 208 Ill. App. 53; LaGrange Press v. Citizen Pub. Co., 252 Ill. App. 482, 485.

Omitting parts that are plainly immaterial, we will briefly quote from the newspaper articles in question. The first article was as follows:

“Keep Your Hands Steady, Boys.
“The voters in the Forty-Seventh Senatorial District while picking Madison-Bond County representation in the Illinois General Assembly, showed fine discrimination,and in so doing have provided themselves with four high-grade men to represent them. Besides re-electing Senator Norman Flagg, they chose a Democrat, Lloyd Harris, who has achieved a good record in the General Assembly. Once he was deprived of his seat in the lower House by unauthorized action of the Madison County canvassing board which assumed to decide, without consulting the ballots, what the voters had done in the way of distributing split votes among candidates. What was done at that time was wrong, inexcusable. It was an amazing action for the canvassing board to carry out. With the vote now as close as it is between Schuyler B. Vaughan and Schaefer O’Neill, only 106 difference by unofficial returns, it would be a matter much simpler than it then was to deprive Lloyd (Curley) Harris of his seat to which he was honestly entitled. The canvassing board must be more careful than it was four years ago. They must keep their hands clean and their heads clear this time.”

The second article was as follows :

“Vaughan Should Enter Contest
“The finding of the Madison County Canvassing Board, consisting of County Clerk Norbert Hotz, Justices of the Peace Beneze and Walters, should be contested . . . The action of the canvassing board seems to be mathematically impossible. Apparently the board attempted to decide how people intended to distribute their votes, and, without the right or the ability to consult the ballots, the only indisputable authority, the canvassing board went behind the returns to distribute votes not originally reported by election officers.
“. . . They gave to Schaefer O’Neill far more increase in votes than they gave to Lloyd Harris, and, in so doing, gave O’Neill enough votes to make a showing that Schuyler B. Vaughan of Greenville had been nosed out.
“It is the third time that O’Neill has .thus been counted in, and the second time that Vaughan has been counted out by the Madison County Canvassing Board, which repeatedly has taken the liberty of trying to interpret what the voters wanted to do, but seems somewhat inaccurate in its arithmetic. The only way that the truth can be arrived at is by recounting the votes in the Legislature. It is a matter of importance to the people that a ruling be given somewhere that will prevent future repetitions of such acts by the county canvassing board. The Telegraph joins in the widely expressed belief that there should be no acquiescence by Mr. Vaughan in this action of the canvassing board until the ballots are recounted. Considering the records of the past, the canvassing board should join in asking that its .work be checked by a recount. The public is deeply concerned in the truth being brought to light. If Mr. Vaughan needs any financial assistance to cover any costs to him for contesting the election, the money should be made up by people who want to be sure that justice is done.
“If Mr. O’Neill is entitled to the seat, his right to it should be proved more convincingly than on the order of a mere canvassing board which repeatedly has assumed rights it certainly could not be expected to claim.”

It has been held that a statement in writing may be libelous per se, which if spoken, would not be. Herrick v. Tribune Co., 108 Ill. App. 244, 247. In determining whether a published article is libelous per se, the words must be taken in the sense which readers of common and reasonable understanding would ascribe to them, that is, in their ordinary and common acceptance. LaGrange Press v. Citizen Pub. Co., 252 Ill. App. 482, 485. Appellants have cited definitions of various words appearing in these articles, viz: “deprived of” — conveys the idea of either taking away that which one has or withholding that which one may have, and also has been held to mean “defraud,” 26 C. J. S. 977; “deprive”— defined as dispossess, divest, debar, to divest of office, with synonym meaning, strip, despoil, rob, Webster’s New International Dict., 2nd Ed., Vol. I, p. 703; “hands clean” is defined in said dictionary at p. 498 as freedom from guilt, especially from dishonesty in money matters or bribetaking; and “counted out” at p. 606 of the same reference, is to exclude from consideration, prevent accession to office by a fraudulent return or count of votes cast.

Appellees contend that the words in these published articles are reasonably susceptible of an innocent construction, and, therefore, cannot be held to be libelous, per se.

We cannot see how the language used in these articles can be given an innocent construction. When one has read the two articles, giving them a reasonable interpretation, and placing upon them a common and generally accepted meaning, the conclusion is inescapable that the plaintiffs were accused of being dishonest in the discharge of the duties of their office and of a betrayal of a public trust; that they were guilty of defrauding the electorate by causing their returns to affect a result other than that which an actual count of the ballots indicated. In other words, it seems that when Schaefer O’Neill ran for the legislature in the Forty-Seventh Senatorial District, he invariably had the blessing of the Madison county canvassing board. The articles in question implied that on three different occasions, Mr. O’Neill failed to receive enough votes on the official count to be elected, but by some trick or manipulation the canvassing board of Madison county succeeded in landing him in office, and by so doing, they excluded from office Lloyd (Curley) Harris and Schuyler B. Vaughan who had actually been elected. It is inconceivable that any reasonable construction placed on the articles in question could lead to any other conclusion than that the defendants maliciously intended to charge the plaintiffs with public wrongs steeped in dishonesty and fraud, and that they were designed to impeach the integrity and standing of the plaintiffs in their community. These publications were certainly knowingly calculated to induce an ill opinion of the plaintiffs, and to destroy their reputation in their community. Such an assault upon the good name of anyone has repeatedly been held to be libelous per se. Herrick v. Tribune Co., 108 Ill. App. 244, 247, 248; White v. Bourquin, 204 Ill. App. 83, 93, 94. “Defamatory words which impute unfitness to perform the duties of an employment of profit, or want of integrity in the discharge of its duties, are actionable in themselves.” Creits v. Bennett, 273 Ill. App. 88, 96.

The contention is also made that the articles are protected under the defense of “fair comment and criticism.” Where facts are stated and they are libelous per se, there is no defense of “fair comment and criticism.” Cooper v. Illinois Publishing & Printing Co., 218 Ill. App. 95, 116. We agree with appellees that some latitude should be permitted a publication with respect to its comments and criticisms of public officers in the discharge of their official acts; and, too, that this fundamental safeguard of democracy is bounded by the limitation that such criticism must not injure the official in his reputation as an individual member of society. While rationalizing on the subject, we must bear in mind that the press has a far-reaching psychological power in civilization, and controls the opinions, the thinking and conduct of the vast majority of those who come under its influence. We are of the opinion that the questioned publications find no legal defense on the theory of “fair comment and criticism.”

Appellees make the further contention that no cause of action is stated against defendant, Paul B. Cousley, in that the Alton Telegraph Printing Company was the only one charged with the wrong complained of, and rely upon the casé of Kulesza v. Chicago Daily News, Inc., 311 Ill. App. 117. On page 126 of that case, the court said “So far as defendant Knox is concerned, the complaint contained no allegation charging him with responsibility for the article; it is merely alleged that the article appeared in the Chicago Daily News, published by defendant Chicago Daily News, Inc., and that Frank Knox was editor and publisher of the paper and supervised and controlled its publication and circulation and directed and controlled the policies of the corporation. There is no allegation in any way connecting him with the article; it is not even charged that he knew of it. Under these circumstances, it is the settled law in this State that ‘to make an officer of a corporation liable for the negligence of the corporation there must have been upon his part such a breach of duty as contributed to, or helped to bring about, the injury; that is to say, he must be a participant in the wrongful act.’ ” In the instant case, the complaint in each count avers that defendants (obviously including defendant Paul B. Cousley) maliciously and wilfully composed and caused to be published of and concerning plaintiffs, in the editorial columns therein, the false and defamatory matter. Consequently, the above authority has no application here.

Entertaining the above views, we are of the opinion that the trial court erred in sustaining a motion to dismiss the complaint in this case and in entering judgment for the defendants in bar of action and costs, and, therefore, this cause is reversed and remanded with directions to overrule said motion to dismiss.

Reversed and remanded.

Stone, J., dissenting.


author: Mr. Presiding Justice Dove

text:
    First Mission Covenant Church of Rockford, Illinois, Appellant, v. Rockford Broadcasters, Inc., Appellee.
    Gen. No. 9,963.

      Opinion filed July 20, 1944.
    Opinion modified and rehearing denied October 4, 1944. Released for publication October 6, 1944.
    Welsh & Welsh, of Rockford, for appellant; C. K. Welsh, of Rockford, of counsel.
    Miller, Thomas & Hickey, of Rockford, for appellee ; L. C. Miller and F. E. Hickey, of Rockford, of counsel.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

This cause is here on an appeal from a decree of the circuit court of Winnebago county, dismissing for want of equity appellant’s complaint seeking specific performance of a contract for broadcasting, without cost to appellant, its church services each Sunday from 10:45 to 12:15 p. m., and its Julotta services each Christmas morning from 5:00 a. m. to 7:00 a. m.

The controversy grows out of the following facts: In the year 1923, the Reverend A. T. Frykman, pastor of appellant church at Rockford, owned and operated a radio broadcasting station, licensed under the call letters KFLV. The religious services of the church each Sunday and the Julotta services were regularly broadcast between the hours above mentioned, without cost to the church. Rev. Frykman testified that he owned the station as pastor of the church; that prior to May 1929, the station was financed by sponsored programs and by voluntary contributions, and that in addition to the church services, classical programs were broadcasted. From the minute book of the church it appears that he turned the station over to the church in September 1924, and that it was turned back to him in December 1927, because the church could not enter into agreements required to become affiliated with other stations and to be connected with telephone service by special wire. The resolution turning the station back recited that it was on the condition.that the church should receive continued free service as before from the committee to be appointed by the trustees to have entire charge of the operation of the station to further the object for which it was originally built, “namely the spreading of the Gospel of Jesus Christ.” The free broadcasting was carried out by the pastor until appellee, an Illinois corporation, was organized through the efforts of the pastor and several members and trustees of the church, in May 1929, all of the four incorporators and the eleven subscribers to the stock, except one or two, being members of the church. The corporation was organized under the 1919 act in relation to corporations for pecuniary profit, with a capital stock of $50,000 with $4,000 paid in cash and $33,500 paid in property.

The statement for incorporation was acknowledged before a notary public on May 20, 1929, filed in the office of the secretary of state on May 24, 1929, and the certificate of incorporation bears the latter date. On the same day that the statement was acknowledged, May 20, 1929, Rev. Frykman executed an assignment to the “Rockford Broadcasters, Inc.,” of all of his rights, franchises and contracts from the Federal Radio Commission, in which the consideration is expressed as $12,500 and a bill of sale to the other ten subscribers to the stock, for “all the following Goods, Chattels and Property, to-wit: Radio Broadcasting Station KFLV, together with all appurtenances belonging thereto wherever located,” in which the consideration is expressed as $16,000. On the same day the vendees in the latter instrument executed another bill of sale to “Rockford Broadcasters, Inc.,” in which the consideration is expressed as $21,000. Stock of the corporation was issued in exchange for the chattel property. Rev. Frykman testified that he received the equivalent of $12,500.

Contemporaneously with the above-mentioned instruments, under date of May 20, 1929, an agreement was executed between Rev. Frykman and “Rockford Broadcasters, Inc.,” reciting that “Whereas said party of the second part has purchased from the party of the first part, all his rights, franchises and contracts included in Radio Broadcasting Station License, Official Number 597, Call Letters KFLV, received from the Federal Radio Commission. . . . It is herewith mutually understood and agreed that the Sunday morning church service from 10:40 a. m. to 12:15 p. m. each Sunday is to be given to the Swedish Evangelical Mission Church of Rockford, Illinois and broadcasted without charge as per agreement outlined in the minutes of said church under date of-. This agreement shall be binding on the heirs, executors, administrators, successors, and assigns of each of the parties hereto.”

The board of directors of the corporation and the board of trustees of the church were almost identical in personnel. Rev. Frykman continued as pastor of the church until he resigned in November 1934. Free broadcasting of the church services was continued by the corporation until October 13, 1933. At that time the corporation had become indebted, and all the issued capital stock was held by two of the members, as trustees, who were .also creditors of the corporation. At that time a contract was entered between them and Alexander L. Sherwood concerning the latter’s purchase of the stock held by them, in which provision was made for the payment to them of promissory notes of the corporation for $15,905.96, representing the corporate indebtedness to them. The agreement also contained a provision that the corporation should provide free broadcasting of the church services each Sunday from 10:45 a. m. to 12:15 p. m. so long as such period was made available to the station by the radio commission, and that if such period be denied to the radio station by the commission, that another one and one half hour period would be allocated to the church. It also provided for free broadcasting of the Julotta service each Christmas morning. The minutes of a special meeting of the directors and of a special meeting of the stockholders of the corporation on the same day, recite a resolution to the same effect as the contracts. The notes were paid, and a receipt given the corporation on April 2,1936, reciting that the payment “is in full satisfaction and performance of the terms of said agreements and that the same are null and void, cancelled, and of no further force and effect. ’ ’

The free' broadcasting of the church services was still continued until, under date of September 9, 1942, the then pastor received a notice from the corporation that by virtue of the rules and regulations of the Federal Communications Commission and the rules of the Mutual Broadcasting Company, to which chain the station belonged, it was necessary to restrict the' time allotted to the church, and that until further notice the Sunday time would be from 11:30 a. m. to 12:15 noon. Thereafter, under date of October 13, 1942, the corporation advised the pastor that because of commitments with the Mutual Broadcasting System and the rules and regulations of the Federal Communications Commission, the corporation could no longer grant the church free broadcast time, and offering its facilities on the same basis as to other churches in the community. The free service was discontinued on October 11, 1942, demand for its continuation was made upon the corporation, and thereafter this suit was instituted.

The three principal defenses set up in appellee’s amended answer to the complaint were, want of consideration for the agreements; release and termination of the agreement of October 13, 1933, by the receipt of April 2,1936, and that the defendant corporation never ratified or approved the contract of May 20,1929. At the close of the testimony for appellant, appellee filed a motion to dismiss the cause. Among the grounds for the motion it was claimed that there is no mutuality of remedy between the parties; that the full performance of the alleged contract rests upon the personal will and conduct of the parties and cannot be specifically enforced; and that the court could not in its ordinary modes of administering justice enforce a decree of the kind prayed for. The court struck these grounds from the motion and denied it. After the close of all the testimony, the chancellor sent a written communication to counsel for each of the parties, calling attention to the fact that neither of the contracts fixed any limitation of the time within which the free broadcasting was to be furnished, and asking for an expression from them as to whether it was to be perpetual or for a reasonable length of time. Later, he sent them another written communication, mentioning the general rule that a contract will not be specifically enforced in the absence of mutuality in its terms and requirements; and the general rule that a court of equity will not grant specific performance unless the decree can be carried out without continuous supervision, with a request for an expression of their views. Counsel for appellant filed a brief on all three of the points raised in the chancellor’s letter. In a written memorandum of his decision the chancellor held that the purpose of organizing the corporation was for carrying on the broadcasting of the church services, and that there was a sufficient consideration for each of the contracts, and that the contract of October 13, 1933, was not released by the receipt of April 2, 1936. The suit was dismissed for want of equity on the grounds that the agreement was not enforcible because it lacked mutuality; that it was not definite as to time; and that a decree of specific performance would call for protracted supervision and direction of the court.

Appellant claims that inasmuch as appellee has filed no pross-appeal, it is barred from asserting any cross-errors, but it has not attempted to do so. • It is also claimed that appellee is barred from asserting any defense that was not alleged in its answer; and that when appellee refused to perform the contract for specific reasons stated, it waived all other grounds or contentions for nonperformance. A sufficient answer to these contentions is, in the language of the Supreme Court, that it is the decree and not the statement of the chancellor which is before us for review. Error cannot be assigned on the statement and its import is of no determining force here. Appellee has the right to sustain the decree upon any facts in the record whether the reasons given in the chancellor’s statement are good or not. (Chicago Title & Trust Co. v. Schwarts, 339 Ill. 184.) Furthermore, appellee raised the points upon which the decree is based, in its motion to dismiss the suit, and although it has not assigned any cross-error on the striking of those grounds from the motion, it was not necessary to do so, because the chancellor adopted those same grounds as the basis of his decision. When the chancellor brought these points to the attention of appellant’s counsel, as above related, indicating their determinative character, appellant did not claim that they were not cognizable under appellee’s answer, which, if it had been done, would have enabled appellee to ask for and obtain leave to amend its answer so as to include such points. Instead, it elected to file briefs on the points, and treated them as properly at issue. It cannot now, after thus lulling appellee into a failure to amend its answer, take any advantage of it.

If appellant thought the contract could not be can-celled at the will of appellee because it had not run a reasonable length of time, or that the franchise should be returned if the contract was cancelled, it was the moving party, and should have included those claims when the chancellor indicated by his letters that the contract was cancellable because of the indefinite time, and particularly called attention to whether the contract was to be perpetual or for a reasonable length of time. By these claims, appellant asks this court to try the case on something not in issue, the very thing about which it claims the lower court erred.

There can be no doubt that the contract was executory as to everything agreed to be done thereunder... The law is well settled that where no definite time is fixed during which an executory contract shall continue in force, it is terminable at the will of either party. (Gage v. Village of Wilmette, 315 Ill. 328; Joliet Bottling Co. v. Joliet Citizens’ Brewing Co., 254 Ill. 215; Davis v. Fidelity Fire Ins. Co., 208 Ill. 375.) This alone justified the decree dismissing the suit, and makes it unnecessary to consider any other issue.. The decree is accordingly affirmed.

Decree affirmed.


text:
    Clarence Wolfram, Appellant, v. Melvin Bennehoff, Appellee.
    Gen. No. 9,970.
    opinion filed July 20, 1944;
    opinion modified and rehearing denied October 4, 1944; released for publication October 6, 1944.
    Robert E. Nash, B. Jay Knight, Frederick H. Haye and Albert H. Manus, for appellant; Burrell & Burrell, for appellee; David M. Burrell, of counsel.
   Opinion by

Presiding Justice Dove.

Not to be published in full.


author: Mr. Presiding Justice Culbertson

text:
    Phil S. Herr, Appellee, v. W. O. Morgan, Appellant.

      Opinion filed May 26, 1944.
    Opinion modified and rehearing denied October 27, 1944. Released for publication October 27, 1944.
    Guy E. McGaughey, of Lawrenceville, for appellant.
    Everett Lewis, of Benton, for appellee; M. M. Hart, of Benton, of counsel.
   Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This is an appeal by appellant, W. 0. Morgan (hereinafter called defendant), from a judgment against him in the sum of $3,621, in favor of appellee, Phil S. Herr (hereinafter called plaintiff), entered in the circuit court of Franklin county, and, likewise, from an order of such court denying defendant’s motion to vacate the judgment and open the proceedings for further pleadings and proof.

The evidence in the case discloses that the Old Ben Coal Corporation apparently owned the coal and minerals underneath the property under consideration, and that the rest of the fee simple estate in the land was owned by individuals who had obtained their titles from owners who had conveyed the coal and minerals to Old Ben Coal Corporation. The Old Ben Coal Corporation had executed and delivered to one E. S. Adkins, an oil and gas lease conveying the entire tract of land involved in this action. Certain owners of title to the land had executed oil and gas leases to the plaintiff herein. The defendant had made a working agreement with Adkins as to the exploration for oil and gas under the lands involved in this proceeding, and was apparently desirous of obtaining leases held by the plaintiff and to commence drilling for oil, for the reason that there was a well being drilled one-half mile north of the land under consideration in this proceeding. There was some dispute as to whether the landowners or Old Ben Coal Corporation was the owner of the oil and gas underlying the lands involved herein. As a result of negotiations between plaintiff and defendant, on June 15, 1942, the plaintiff and defendant entered into an escrow agreement, dated June 13, by the terms of which plaintiff and his wife, as first parties, and defendant, as second party, and an attorney who had acted on behalf of defendant as escrow agent, arranged for the deposit with the escrow agent of certain assignments of oil and gas leases specifically identified in such escrow agreement. The defendant paid $1,500 at the time of the deposit of the leases and agreed under the terms of such escrow agreement to pay for the additional and remaining leases at the rate of $20 per acre. There were provisions for examination of abstracts by a competent attorney and an option in the defendant to waive any objections in the event he desired to do so and to proceed. It developed that apparently the examining attorney was of the opinion that neither plaintiff nor his leaseholders had merchantable title to the leases or leaseholds, and that certain curative leases, or the signatures of certain parties, were required before plaintiff could establish and perfect such merchantable title in himself. It was the plaintiff’s contention that the defendant had accepted the leases with knowledge of the deficiencies and apparently had thus waived any objections to the validity of such assignment of leases.

The evidence discloses that plaintiff did assign and deliver the leases to the attorney who acted as escrow agent and who had, likewise, prepared the opinion of title and who had acted as defendant’s attorney, and that neither the defendant nor such attorney offered to return the leases to the plaintiff, hut continued to hold the leases until the date of the trial of this cause in the lower court.

This action was instituted against the defendant to recover the consideration of $20 per acre, specified in the agreement. The evidence in the case also disclosed that defendant went upon the land and built a derrick, preparatory to building an oil well, and that the defendant agreed to assign to the plaintiff an overriding royalty interest in the same lands after the execution of the escrow agreement, in accordance with an oral agreement entered into prior to the execution of such escrow agreement.

This cause was heard by the court below without the intervention of a jury, and was determined in such-court upon the theory that the only substantial issue of fact for consideration was whether or not the defendant had accepted the assignment of the leases referred to in the complaint and had thus waived any objections relating to merchantability of the title. The court found the issues in favor of plaintiff and as against defendant and rendered judgment accordingly.

The court below was justified in permitting an amendment of a portion of plaintiff’s complaint, and •directing that such portion be stricken by order of court. There was, likewise, no evidence in support of defendant’s counterclaim for the sum of $1,500, other than might arise from the language of the escrow agreement and the original payment to plaintiff. Under the facts as presented we find no error in the action of the court in dismissing such counterclaim.

As to the major issue determined by the court below (although there was controverted evidence of oral discussion or complaints), there was evidence to the effect that defendant did not make any formal complaint, either by himself or his attorney, or offer to return the assignments of leases to the plaintiff, but kept them until the day of the trial. There was also some evidence which would lead to the conclusion that the leases had been accepted by defendant in that defendant’s attorney recited in his opinion that plaintiff should answer a complaint filed in a certain proceeding and set up the fact that he had transferred all of his interest to defendant and ask to be dismissed as a party defendant, and that thereafter the defendant would ask leave to answer in his behalf. This was corroborative of the testimony of the plaintiff with respect to the acceptance of the leases.

Defendant, likewise, contends that the court below ' erred in denying defendant’s motion to vacate the judgment and open up the proceedings for further pleading and proof relating to the attached amended answer and counterclaim. Such counterclaim set up a new and different cause of action than the counterclaim in the,original suit. There was no abuse of discretion in the denial of such motion by the trial court.

The evidence presented to the court below (which was not contrary to the manifest weight of the evidence) fully justified the conclusion of such court, and the judgment of the circuit court of Franklin county will, therefore, be affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Burke

text:
    Emma Paliokaitis et al., Appellees, v. Checker Taxi Company et al., Appellants.
    Gen. No. 43,001.
    Opinion filed October 11, 1944.
    Released for publication October 27, 1944.
    Wyatt Jacobs and Kirkland, Fleming, Green, Martin & Ellis, all of Chicago, for appellants; William H. Symmes, David Jacker and John M. O’Connor, Jr., all of Chicago, of counsel.

      Kamin, Gleason & Kamin, of Chicago, for appellees.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

Emma Paliokaitis and Carlyle Paliokaitis, a minor, by James Paliokaitis, his father and next friend, in a complaint filed in the circuit court of Cook county against the Checker Taxi Company and Harold Johnson, sought damages for personal injuries. Various acts of negligence were charged. Issue was joined. A trial before the court and a jury resulted in a verdict for Carlyle Paliokaitis in the sum of $750 and for Emma Paliokaitis in the sum of $100. Defendants’ motion for a new trial was overruled and judgment was entered on the verdict. Defendants appeal.

About 1:20 in the afternoon of August 21, 1942 plaintiffs were riding west on Webster avenue in Chicago as passengers in the Oldsmobile sedan of Roger Clark. It was a bright day and the weather was good. Clark was from Connecticut and, with his family, was staying at the home of plaintiffs, his relatives. He wanted to take his family for a ride in Lincoln Park and had asked Emma and her children to go along. They did and were on their way home from the park, going west on Webster avenue. Clark was driving. The son of Emma and James Paliokaitis, Jimmy, and Clark’s son, Robert, were in the front seat with the driver. Mrs. Clark, her daughter Audrey and the two plaintiffs were in the rear seat. Emma Paliokaitis is the mother of Carlyle, then an infant of 17 months. Carlyle was sitting to the extreme right in a small metal seat hooked to the back and side of the car. Webster avenue, 36 or 38 feet wide, runs in an easterly and westerly direction. Southport avenue, approximately the same width, runs in a northerly and southerly direction. There are two sets of street car tracks on Southport avenue, one for northbound and one for southbound cars. There are no street car tracks on Webster avenue at that point. The neighborhood is a mixed business, residential and manufacturing district. Southport avenue to the north of Webster avenue has some industrial plants and fenced in vacant lots, and there are some stores. On the southwest corner of the intersection is a vacant lot; on the northwest corner is a one story frame building with a tavern; on the northeast corner a two story building with a grocery store; and on the southeast corner a three story building with a restaurant. The cab was being driven south on Southport avenue by Harold Johnson, the individual defendant. He was answering a call to pick up a passenger at that intersection. Emma, the only occurrence witness for plaintiffs, testified that Mr. Clark stopped his car at Southport avenue, at which time the cab was about a half block north, or to the right, and that the Oldsmobile car in which plaintiffs were riding started up and reached about the middle of the street, at which time she looked again to her right and saw the cab coming very fast. In her opinion the cab was going about 40 miles an hour when she first saw it. The right front side of the Oldsmobile was hit. She testified that it was a “very heavy impact.” Carlyle was thrown from his seat to the floor. Emma tried to catch him and fell over him. Emma’s right hip and right chest were hurt slightly. A physician called by plaintiffs testified that Carlyle received a direct hernia from trauma. A physician called by defendants testified that Carlyle had an indirect inguinal hernia and that it was not caused from trauma.

Harold Johnson, the individual defendant, testified that when he was in the middle of the block north of Webster avenue his car was traveling'at a speed of 20 miles an hour; that as he approached Webster avenue his speed was reduced to 15 or 16 miles an hour; that there was a truck parked facing east on the north side of Webster avenue, east of Southport avenue, at the curb adjoining the store on the northeast corner; that he saw the Oldsmobile when it “leaped into view in the middle of the street,” at which time the cab was 15 feet from the intersection; that he saw the Oldsmobile when it came into view and that it was “going 15 to 20 miles an hour, approximately;” that it stopped right in the middle of the street; that it was facing west when it stopped; that the bumper of the cab hit the front fender of the Oldsmobile; that after the occurrence the cars were “in the same position,” the Oldsmobile facing west and the cab facing south. There were only two occurrence witnesses, namely, Emma Paliokaitis and Harold Johnson. It is not disputed that plaintiffs were in the exercise of due care and caution for their own safety. A question of fact was presented to the jury as to whether the defendants were guilty of the negligence charged to be the proximate cause of the injuries. We have not attempted to summarize all of the evidence.

- The first point presented by defendants is that counsel for plaintiffs was guilty of improper conduct because of which the trial court should have granted a new trial. Defendants called two police officers, William Currin and Bernard G-lavin. They arrived after the accident and made a routine examination as to the condition of the streets. They were members of the Accident Prevention Squad. They testified on direct examination that there were no skid marks. On cross-examination plaintiffs’ counsel asked Officer Currin about certain reports he and his partner made. He testified that it was a routine matter to take or attempt to take statements of the drivers of cars involved in accidents; that he took the statement of the Oldsmobile driver, and that the driver of the cab gave “half of a statement.” He was then shown two documents, marked plaintiffs ’ Exhibits 1 and 2, for identification, and plaintiffs’ counsel began cross-examining him about them. It developed that plaintiffs’ Exhibit 1 was a statement taken from Eoger Clark, the driver of the Oldsmobile. The attorney for defendants objected to the witness being cross-examined as to this statement. Officer Cnrrin testified that the statement was taken by his partner, Officer Glavin. The witness was permitted to state that it was customary for one officer to take the statement and for the other officer to be present at the time it was taken. The witness was shown plaintiffs’ Exhibit 2 for identification, and asked, over objection, “if that is what you meant when you said a half statement was taken from the other driver.” Witness answered in the affirmative. The witness was then asked as to whether the driver of the cab told him his “story how the accident occurred,” and, over objection, he answered, “No, sir, what is on the statement is all he told us.” At this juncture the attorneys conferred with the court in chambers. The attorney for defendants moved to withdraw a juror and for the declaration of a mistrial. Plaintiffs’ attorney admitted that the statement of Mr. Clark could 'only go into evidence by agreement. Defendants’ attorney argued that the attempt to introduce the statement of Mr. Clark in the presence of the jurors was prejudicial. In chambers the court announced he would sustain the objections to the proffered exhibits, but denied the motion to withdraw a juror and to declare a mistrial. The court directed the jury to disregard the two proffered exhibits. The only theory upon which Exhibits 1 and 2 might be admissible would be that they were impeaching. It is obvious that Exhibit 1, the statement made by Mr. Clark, was not impeaching. Clark did not testify. Exhibit 2, the so-called “half statement,” was not impeaching. When called by plaintiffs under section 60 of the Civil Practice Act [Ill. Rev. Stat. 1943, ch. 110, par. 184; Jones Ill. Stats. Ann. 104.060], Johnson testified that he told the police “just off hand how the accident happened. ’ ’ He did not testify that he gave them a statement. Exhibit 2 contains the question: “Do you wish to make a statement?” and the answer, “No, company rules.” We are of the opinion that Exhibits 1 and 2 were not admissible and that the conduct of counsel for plaintiffs in exhibiting them in the presence of the jury was prejudicial to a fair trial for defendants.

Plaintiffs also offered in evidence Exhibits 3 and 4, being copies of accident reports made out by the police officers. The court declined to receive them in evidence. Plaintiffs did not contend that the court erred in so ruling. We agree that proffered Exhibits 3 and 4 were not admissible. They did not impeach Johnson. They were made out about one and one half hours after the occurrence. All the officers knew about the occurrence was what they learned when they arrived on the scene. Their statements necessarily contained their conclusions as to how the accident occurred. The offer of these documents was also improper. We agree with defendants that the conduct of plaintiffs’ counsel made it appear' that defendants were responsible for keeping Clark’s statement from the jury, thus giving the impression that it was unfavorable, or the defendants would not have objected to it. We also agree with defendants that whether Johnson wanted to give a statement to the police, whether he refused to give a statement, or whether or not the defendant corporation had a rule against statements, was immaterial and tended to create a prejudice against defendants. We agree with defendants that the attempt to introduce the exhibits might give the jury the impression that Clark, the driver of plaintiffs’ car, had given the police a full statement, but that the individual defendant, Johnson, refused to give a written statement, and that Johnson, being unwilling to give a statement, must be guilty. This was a close case on the facts. The improper conduct of plaintiffs’ counsel deprived defendants of a fair trial. In a clear case this court will reverse a judgment because of the improper conduct of counsel. In our opinion the court should have granted a new trial because of such misconduct. Defendants complain of the giving of the following instruction:

“You are instructed that, if the negligence of two or more persons unite in causing an accident by which the plaintiff was injured, it is no defense for one of such wrongdoers to show that the other wrongdoer is also to blame in causing such accident. ’ ’

In Grifenhan v. Chicago Rys. Co., 299 Ill. 590, a similar instruction was condemned. The court stated that as an abstract proposition of law there was nothing materially wrong with the instruction, but that in view of the record in the case it was nearly certain to mislead the jury. Under the factual situation of the instant case the instruction was misleading and on a retrial should not be given. Defendants also complain of instruction No. 21 as to the law pertaining to the right of way. This instruction required the jury, in its determination of which car reached the intersection first, to disregard the actual speed of the vehicles and to confine itself to a supposititious case where both cars are traveling “within the lawful limits of speed.” We agree with defendants that it is the actual speed of the vehicles and their respective distances from the intersection that governs. Krawits v. Levinstein, 320 Ill. App. 618, 622. The criticism voiced by defendants as to instruction No. 21 is valid. It is unnecessary to consider the contention of defendants that the judgment is against the manifest weight of the evidence.

The judgment of the circuit court of Cook county is reversed and the cause remanded with directions to proceed in a manner not inconsistent with this opinion.

Judgment reversed and cause remanded with directions.

Kiley and Lupe, JJ., concur.


author: Mr. Justice Lupe

text:
    Electrical Contractors’ Association of Chicago, Appellant, v. A. S. Schulman Electric Company, Appellee.
    Gen. No. 42,423.

      Opinion filed October 11, 1944.
    Rehearing denied October 27, 1944, Released for publication October 27, 1944.
    Cassels, Potter & Bentley, of Chicago, for appellant; Edwin H. Cassels, William S. Wareield, III and George C. Bunge, all of Chicago, of counsel.
    Miller, Gorham, Wescott & Adams and Milton M. Adelman, all of Chicago, for appellee; Frederic O. Mason, of Chicago, of counsel.
   Mr. Justice Lupe

delivered the opinion of the court. This action is one at law instituted by plaintiff Electrical Contractors’ Association of the City of Chicago, a corporation not for profit, to recover dues claimed to be owed by A. S. Schulman Electric Company under plaintiff’s by-laws. Defendant, by counterclaim, sought recovery from plaintiff of sums paid to the plaintiff on account of such dues under an alleged mistake of fact. At the conclusion of a jury trial the court directed verdicts in favor of the defendant as to plaintiff’s claim and in favor of plaintiff as to defendant’s claim, and entered judgments thereon. Plaintiff appealed from the judgment denying it recovery, and defendant filed notice of cross-appeal from the judgment denying recovery under its counterclaim.

The plaintiff, Electrical Contractors’ Association of City of Chicago, is a corporation not for profit organized under the laws of this State. Its charter sets forth that the object for which it was formed was “to promote the interests of its members and create a more friendly feeling between legitimate electrical contractors.” On June 11,1919, A. S. Schulman made a written application to plaintiff for membership; this application was accepted by plaintiff, and he became a member of plaintiff association.

On February 25, 1926, the defendant, A. S. Schulman Electric Company, a corporation organized under the laws of this State, wrote plaintiff a letter on the letterhead of A. S. Schulman Electric Company requesting plaintiff Association to change upon its records the name of A. S. Schulman to A. S. Schulman Electric Company. When plaintiff’s secretary received this letter he changed the name “A. S. Schulman” wherever it appeared in plaintiff’s records to read “A. S. Schulman Electric Company.” The records of plaintiff so changed consisted of the roll-call books, used for calling the roll of meetings of plaintiff Association, and containing the official list of members, and the ledger containing the account of plaintiff Association with each of its members; and plaintiff’s secretary also destroyed the addressograph plate bearing the name of “A. S. Schulman” and had a new plate made with the name “A. S. Schulman Electric Company” at the same address as had theretofore been used as the address for A. S. Schulman.

After this new plate was made in 1926 and up to the time suit was instituted all communications of plaintiff Association to its members were sent to the defendant by this substituted plate. After 1926 there were from 10 to 20 meetings per year of plaintiff’s members, and either A. S. Schulman, the president of defendant, or Harvey T. Hack, its vice president and general manager, attended 90 per cent of these meetings.

Plaintiff’s by-laws during the period from 1926 to 1939, when suit was instituted by plaintiff, provided that any person, firm or corporation shall be eligible to membership who is so declared by the executive committee; that a candidate for membership shall make application in writing on blanks provided by the plaintiff Association, accompanied by cash or certified check in the sum of $25 as an initiation fee; that each application shall bear the indorsement of two members in good standing; that each application shall be referred to the executive committee and by them reported to the next regular meeting of the Association; that if the report of said executive committee is favorable to an applicant, the applicant shall be declared elected to membership if he received a majority vote of the members at such meetings; and if the executive committee report adversely on an applicant, then his application shall be declared rejected, and shall not be again considered for a period of six months from the date of rejection.

Article 8 of the by-laws of plaintiff provided that the dues of regular members should be an amount equal to 4/10ths of 1 per cent of all construction and merchandising business; that all dues should be computed on a basis of monthly billing and should be due and payable each month; and that all members were obligated to pay all such dues from date of election to membership until resignation or expulsion by the executive committee.

It was stipulated upon the trial of this cause that from February 25, 1926 to October 3, 1939, when plaintiff filed its suit, the defendant had from time to time made reports to the plaintiff of business done by it and paid to plaintiff the sum of $8,607.82. The amount of merchandising and construction business done by the defendant in the 10-year period from October 3, 1929 to the date of the institution of this suit was $2,445,235.53. One of the jobs performed was on the Chicago post office under a subcontract with John Griffith & Sons Company, the general contractors; another of the jobs performed was a direct contract with the Sanitary District of Chicago, river control work; and all of the other jobs done were private as distin- ' guished from public work.

The aggregate amount due to the plaintiff for such 10-year period at the rate of 4/10ths of 1 per cent set up in the by-laws of plaintiff was $9,780.94; plaintiff had received dues from the defendant during the 10-year period amounting to $4,081.41, which left a balance due to plaintiff, for dues claimed to be owed to plaintiff for the 10-year period, of $5,699.53. For this sum plaintiff instituted suit, and the defendant filed its counterclaim alleging that defendant had paid the sum of $8,607.82 as dues under the belief and mistake of fact that it was a member of plaintiff’s organization; that since such payments had been made to plaintiff, and after the commencement of plaintiff’s action, it first learned that it was not a member of plaintiff Association. The trial court denied the counterclaim because it was of the opinion that the defendant had received value for the money it had paid. The trial court also denied the claim of plaintiff on the ground that plaintiff’s by-laws providing that the sliding scale method of fixing dues in proportion to volume of business done by individual members was contrary to public policy and, therefore, void. The trial court thereupon instructed the jury to find for the defendant upon the claim of plaintiff and for the plaintiff upon the counterclaim of defendant.

The first question for determination is whether the defendant ever became an actual member of plaintiff Association. On this question the defendant urges (1) that the conditions set up in plaintiff’s by-laws for admission to membership have never been complied with, by either plaintiff or defendant; and (2) that the defendant, as a corporation, could not legally become a member of a voluntary association incorporated under the laws of this State as a nonprofit corporation.

The evidence herein sufficiently shows that the defendant sent in a letter dated February 25, 1926, requesting the plaintiff to change the name of A. S. Schulman on its records to A. S. Schulman Electric Company. After that request of the defendant had been complied with, the plaintiff treated the defendant as a member, and the defendant acted as a member of plaintiff Association. The defendant’s offleers attended 90 per cent of the meetings of plaintiff Association; made numerous reports to plaintiff of the amount of business done by it; paid dues under the bylaws of plaintiff, amounting to $8,607.82; and the defendant, through its officers, participated in the activities of plaintiff Association.

Under these facts, the contention of the defendant that it never became a member of plaintiff Association cannot be sustained. The fact that the letter of February 25, 1926, requesting that plaintiff change the name of A. S. Schulman to A. S. Schulman Electric Co. was not in the form of a membership application as prescribed by the by-laws of plaintiff cannot avail the defendant. Despite the apparent informality of the application of the defendant to become a member of plaintiff Association, the actions of defendant in acting as a member for a long period of time estop the defendant from raising such claim. The defendant had been accepted and recognized as a member of plaintiff Association for 13 years prior to the institution of suit herein, and cannot now urge the claimed informality in the acceptance of its application to become a member of plaintiff Association.

Defendant next contends that it, as an Ulinois corporation, could not legally become a member of plaintiff Association, an Illinois corporation not for profit. It is urged that the statute relating to corporations and associations not for pecuniary profit (par. 158 et seq., ch. 32, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 32.251 et seq.]), under which plaintiff was organized, did not specifically authorize defendant, a business corporation, to become a member of plaintiff Association.

The act under which plaintiff was incorporated as a nonprofit association does not expressly prohibit an association organized under its provisions from accepting or admitting a corporation as a member. Defendant claims that the act provides that three or more persons, citizens of the United States, who desire to associate themselves, may create a nonprofit corporation; that a corporation is not a citizen of any State or community and is not a person; and, therefore, that the act by such language excluded corporations from becoming members of a nonprofit corporation.

It is only by reading a restrictive limitation into the act prohibiting corporations from becoming members of a trade association that defendant’s contention can be sustained. An analysis of the wording of the act leads us to the conclusion that the legislature did not intend by the language employed in the act to prohibit corporations from becoming members of an incorporated nonprofit trade association.

There would seem to be no inherent or basic reason in the public policy of this State that a business corporation engaged in a certain trade could not become a member of a trade association incorporated as a nonprofit corporation under the laws of this State. A large proportion of the business of this State has been for a number of years conducted by corporations, and to deprive them of the benefits and advantages of membership in a trade organization would seem without reason. The membership of a corporation in a trade association would seem just as appropriate as the membership of an individual; the corporation as a member would receive no better or worse treatment than an individual; and no illegal act could be based upon the mere membership of a corporation in a trade association. If the trade association benefits and privileges were necessary and convenient for individuals, such benefits and privileges would be necessary and convenient to a corporation engaged in the same line of business as the individual.

Defendant cites no authority which adopts the construction for which it contends. In the case of American Live Stock Commission Co. v. Chicago Live Stock Exchange, 143 Ill. 210, while the point is not expressly passed on, the court held that a nonprofit corporation had the undoubted right to adopt a by-law restricting membership in the association to natural persons, and that such by-law prevented a corporation from becoming a member. The court thus inferentially held that a corporation might become a member of the association except for the fact that the by-law of the association prevented the corporation from becoming a member. -

Defendant further argues that the amendment of 1937 to par. 158 expressly designating “commercial, industrial, or trade associations,” as eligible for incorporation under the not-for-profit act shows that the legislature had in mind the absence of the power under the act prior to 1937, and used appropriate language to confer it where it was previously lacking. However, this amendment was construed to restrict rather than to enlarge the classes of organizations which might incorporate under the act. (People ex rel. Padula v. Hughes, 296 Ill. App. 587.)

We are of the opinion that the defendant corporation was qualified to become, did become, and was a member of plaintiff Association from February 25,1926, up to the time that plaintiff instituted its suit herein.

Defendant’s next contention is that plaintiff’s by-law fixing the dues of its members at an amount equal to 4/10ths of 1 per cent of all construction business' done by them is invalid and contrary to public policy. The basis of defendant’s contention that the by-law is contrary to public policy is that the sliding scale arrangement of dues provided for in the by-law gave each member of the Association an interest in the other members’ contracts, discouraged compétition and increased the cost of a job to the general public.

In order to pass upon this question we should first determine the nature of the services or benefits provided by plaintiff to its members.

Examining the evidence, we find that during the 10-year period in question there were approximately 350 electrical contractors in the City of Chicago, of which 53, or approximately 20 per cent were members of plaintiff Association. Out of the dues collected from its members the plaintiff paid its secretary treasurer a salary of $3,000 per year and its president $5,000 per year; and all expenditures of the Association were submitted to the members prior to the time the money was expended, in an annual budget prepared by the executive committee of plaintiff, and mailed out to all the members and approval thereof voted by them. Plaintiff, during the 10-year period in question, had a labor agreement with Local Union No. 134, International Brotherhood of Electrical Workers, which provided that all members of the Association were obligated to employ union labor, specified various working rules, and provided for an arbitration board consisting of five members of plaintiff Association and five members selected by the union to arbitrate any question that either the contractors ’ association or the union desired to have decided; the expenses of maintaining the arbitration board were paid out of the dues collected by plaintiff; and no electrical contractor not a member of plaintiff Association could use the arbitration facilities to adjust labor disputes or difficulties, except on payment of the same entrance fee and dues as Association members. The labor agreement between plaintiff and Local Union No. 134 further provided for group insurance of unemployed workmen and for loans to unemployed workmen; and provided that the purpose of this arrangement with reference to unemployed workmen was to preserve and keep a sufficient number of competent workmen available to the electrical trade.

The plaintiff Association also worked with the National Association of Electrical Contractors to obtain and preserve better conditions for electrical contractors; gave assistance to its members with reference to transactions with the Commonwealth Edison Co.; provided experts to testify in cases involving its members with reference to common practices and customs in the electrical business; worked with the National Association in connection with the training of electrical apprentices; kept informed of and participated in discussions concerning prospective city ordinances and State and Federal legislation and regulations affecting the electrical industry; kept its membership informed of such matters; and in general worked for the betterment of the electrical industry.

An analysis of the services thus rendered by plaintiff to its members shows them to be legal in their purpose and intent. The only remaining reason why the by-law providing reimbursement for these services might be declared contrary to public policy is the mere fact that the dues of a member of plaintiff Association are fixed upon a sliding scale or proportionate amount of business done by the members.

The defendant contends that the amounts to be paid as dues being proportionate to the amount of business done gave each member of the Association an interest in all of the contracts of the other members, and that this fact discouraged competition in bidding by members upon the various jobs. The law is well settled in this State that an agreement, between contractors bidding for work, which tends to suppress or stifle competition, is a restraint of trade, is against public policy and, therefore, void. (Ray v. Mackin, 100 Ill. 246; Conway v. Garden City Paving & Post Co., 190 Ill. 89; McMullen v. Hoffman, 174 U. S. 639.) There are numerous other cases which uphold the doctrine that an agreement or bargain between contractors by which they agreed among themselves not to bid or enter into competition for a contract, with the purpose of chilling or stifling competitive bidding, is contrary to public policy and, therefore, void. The courts have almost universally condemned such agreements or arrangements among rival or competitive bidders, holding that, if the effect or tendency of a particular agreement or arrangement between competitors is to restrict competition, then the agreement or arrangement is void as contrary to public policy.

We have considered this question and feel that it cannot logically be held that plaintiff’s by-law is contrary to public policy because the dues of members are fixed or determined upon a sliding scale or proportionate amount of business done by the members. A member who did $200,000 of business a year manifestly would receive a great deal more service than a member who only did $10,000 of business a year. A large business enterprise would present more complications and problems than a small business enterprise, and the company that did $200,000 of business per year would necessarily have more labor problems than a small concern. A trade association formed to assist its membership through the various services performed by the plaintiff Association would be called on much more frequently by a concern which did as large a business annually as was done by the defendant.

Under these circumstances to hold that a trade association can only fix its membership dues at a certain flat rate, such as $100 or $200 per year, would place the trade association in the position that it could only fix as its dues an amount which its lowliest member could afford to pay. If the dues were fixed on the basis of the service rendered to the member who did the largest volume of business, that would prohibit all prospective members who were not doing as much business as the top-line contractor from joining the Association. If the top-line contractor were doing sufficient business and receiving such service and benefit from the Association that he would be willing to pay $2,500 a year dues, manifestly the low-line contractor, who was doing a small amount of business and receiving a small amount of service from the Association, could not afford to pay such a fee. Therefore, if the dues were fixed on the basis of the service rendered and received by the top-line contractor, all other contractor members, if they joined the Association, would be paying more than they should equitably pay as dues, and lesser contractors would not join because they could not afford to join and pay for services which they would not receive. Similarly, if the dues were fixed on the service received by the low-line contractor, the trade Association could not survive because it would be rendering so much additional service for which it would receive no compensation; it would be paid by all members on the basis of the service received by the contractor member who did the smallest business.

Between the service rendered to the contractor who did the smallest business and the contractor who did the largest business, no median or average payment could be adopted because on any such basis the largest contractor would be paying less for his service than all other contractors, and the smallest contractor would be paying more for the service he received than any other contractor. There could be no median or average dues which could fairly and equitably be adopted as between the largest and the smallest.

Natural laws, such as the law of supply and demand, and fair compensation for services rendered and received, require that a trade association be paid according to the amount of service it renders. The only principle involved is whether a member of a trade association shall pay dues according to the amount of services the member receives, or whether a trade association can only charge a fixed amount annually to each member irrespective of whether that fixed amount is fair and just to the trade association and to the members. We are of the opinion that fixing of dues on the business principle of payment proportionate to service rendered is not illegal in principle and carries no stigma of being unethical in intent, in purpose, or in the result intended to be accomplished or which is actually accomplished by such payment.

The Trade Association Survey prepared by Dr. C. A. Pearce and associates in the Department of Commerce for the Temporary National Economic Committee (1941) discloses that of-204 national and regional trade associations, selected at random, approximately 61 per cent levy dues on a sliding scale similar to that employed by the plaintiff, in proportion to the size or business volume of their members. The Survey further states, “The political structure of the typical trade association is democratic . . . although the typical association includes within its membership the large firms in • the industries and apportions the amount of dues and assessments to be paid by members according to their size and business volume in the case of approximately 44 per cent of the association 99

In our opinion to hold that a trade association could not fix its dues proportionately to the amount of business done by each member would deal a death blow to the honest, legitimate trade association.

One of the objections raised to the payment of dues proportionate to the volume of business done is that the percentage charged by the Association would be added to the cost. We cannot see that this is true or ' that such action would so result. The benefits that the members receive from the Association necessarily bring about a reduction in the bid, whereas if they had not received the benefits from the Association the bid would necessarily be higher. And we, therefore, cannot follow the reasoning that dues fixed on a basis proportionate to the volume of business done would be added to the cost of a job any more than if the dues were fixed on a flat rate. In each case, whether flat or proportionate, the dues would be administration expense and should be so considered. If flat rate dues are legal and appropriate, we see no reason why dues proportionate to the volume of business done by a member should be condemned.

There is in proportionate dues no stifling of competition, no agreement that might injuriously affect the public, and no restraint of trade; they only provide a method of determining a just and equitable amount to be paid by the member to the trade association for services actually rendered by the Association and actually received by the member. The member knows the basis of the dues when he joins the Association, and he is under no compulsion to join, but when he has joined and received the benefits and advantages of the Association, he cannot successfully claim that his contract to pay dues proportionate to the volume of business done by him is invalid and void unless it can be shown that such method of fixing dues is expressly contrary to the public policy of this State.

Defendant cites the case of Kentucky Ass’n of Highway Contractors v. J. C. Williams, 213 Ky. 167, 45 A. L. R. 544.

In that case, a nonprofit membership corporation of highway contractors brought suit to recover dues under a by-law which required payment to the Association of % of 1 per cent on all highway work contracted for by a member. The court held that the agreement of the defendant to pay and plaintiff to receive a percentage of the price of all such public contracts was against public policy because it created a stimulus on the part of the member contractor to add to his bid on all public contracts the amount that the Association’s contract forced him to pay to it, and to thereby recoup that amount from the public authority letting the contract.

The above case appears to hold that it is immaterial whether the plaintiff Association rendered a service to its members commensurate with the dues charged. We have held that the plaintiff Association did render services to its members commensurate with the dues it charged, and we are not in accord with the finding announced in the above Kentucky case. Under the holding of that court, any expense which was figured by the bidder as administration expense might be used to hold the contract void. Under that decision if flat rate dues in a trade association had been figured as a portion of the administration overhead expense, then such flat rate dues would be proportionately added to the bid for the public work, and thus neither flat rate nor proportionate rate would be held legal. The decision in effect condemns all overhead expense, and might be carried to the extreme of holding as excessive the salaries of officers of bidders. We disagree with the principle announced in this case and cannot subscribe to its reasoning.

In the case of Associated Wisconsin Contractors v. Lathers, 235 Wis. 14, 291 N. W. 770, the court held that a by-law providing that each member should pay an assessment of % of 1 per cent of the amount of each contract for highway work in which Federal, State or County funds were involved was invalid. The court in its opinion said, “We consider the complaint as showing that respondent is exacting dues from its members measured by the amount of contracts for highway construction obtained by a member without corresponding-benefit to the public, and as containing no allegation of facts that take the case out from under the rule.” The court further held that the plaintiff must allege facts in its complaint which would show that the amount to be paid to plaintiff would not tend to increase the expenditure on the part of the public, and that in the absence of said allegations the complaint was insufficient.

If the above decision is based, as we presume it is, on the fact that there was no allegation or proof that the Association had rendered services to the bidder commensurate with the percentage charged, then we agree with it. We cannot presume that a trade association would arbitrarily fix its dues on the basis of volume of business done and not render services for the dues charged. But if the above decision is based on the broad principle that a trade association cannot be paid according to the value of the services rendered to its members, then we disagree with it. If it had been proved that members in that case had been enabled, through the services and co-operation of the Association, to bid a lower amount than they would otherwise, and were enabled, through the services and co-operation of the Association, to furnish skilled labor and avoid labor disputes and other difficulties, then the Wisconsin court would doubtless have taken a different view of the question presented.

The case of Constructors’ Ass’n of Western Pennsylvania v. Seeds (142 Pa. Super. Ct. 59, 15 A. (2d) 467), is a case based on the Kentucky case above discussed. We cannot subscribe to the reasoning of this case.

The case of Jackson v. Sullivan, 276 Ky. 666, cited as an additional authority by the defendant, decides that a contract among members of an association of contractors, prohibiting any member from bidding on a contract where a nonmember puts in a bid, was in restraint of trade and, therefore, void. . We agree with the holding of that case but do not consider it in point here.

The court is of the opinion that the by-law of plaintiff Association does not tend to restrict bidding, does not stifle or suppress competition, and does not tend to add to the cost of electrical contracts. We, therefore, hold that said by-law is not contrary to public policy and is not void.

The defendant, being a member of plaintiff Association, was liable under its by-laws for dues proportionate to the volume of business done by the defendant. The amount due to plaintiff, if computed on a 10-year limitation, is $5,699.53; and the sum due, based on a 5-year limitation, is $276.38. The defendant contends that the 5-year and not the 10-year limitation applies herein. If the contract between the parties is partly , oral and partly written, then it is an oral contract and the 5-year limitation applies. The contract sued on in this case consists of the written application of A. S. Schulman for membership in plaintiff Association;.the letter from the defendant dated February 25, 1926, requesting plaintiff to change the name of A. S. Schulman on its records to read A. S. Sehulman Electric Company; and plaintiff’s constitution and by-laws.

It has been held by our courts under similar cases that the application for membership in a club or benefit society, together with the acceptance thereof and the by-laws of the club or benefit society, constitute a written contract between the parties so long as the person remains a member. (Jones v. Supreme Lodge Knights of Honor, 236 Ill. 113; Ralph Martin & Co., Inc. v. McCue, 304 Ill. App. 358.) We are of the opinion that the evidence herein shows that the contract between the parties is a written contract and not a partly written and partly oral contract. The defendant is, therefore, liable under the 10-year limitation and not under the 5-year limitation.

Holding, as we do, that defendant was a member of plaintiff Association and that it is liable to the plaintiff for the sum of $5,699.53 for unpaid dues, it follows that the amounts paid by defendant as dues cannot be recovered in this action. The case of State Bank of Blue Island v. Benzing, 383 Ill. 40, cited by defendant as an additional authority on the point that money paid under a contract prohibited by law can be recovered in an action for money had and received, is not pertinent here.

The judgment in so far as it disallowed the set-off filed by the defendant is affirmed, and the judgment in so far as it disallowed the claim of plaintiff is reversed; and the cause is remanded to the superior court of Cook county with directions to enter a judgment against the defendant on defendant’s set-off, and in favor of plaintiff and against the defendant on plaintiff’s complaint, for the sum of $5,699.53 and costs.

Judgment affirmed in part and reversed in part and cause remanded with directions.

Burke, P. J., and Kiley, J., concur.