author: Mb. Presiding Justice Freeman

text:
    James Pease v. Charles S. Trench.
    1. Estoppel — Essential Elements. — An essential of an estoppel by conduct, is that the representation or concealment of material facts must have been with knowledge of such facts.
    3. Replevin — Effect of a Verdict and Judgment for the Plaintiff.— Where an action of replevin is tried upon the issue made by pleas of justification, a verdict and judgment for the plaintiff does not give him a right to any property other than that described in the writ.
    Replevin. — Error to the Circuit Court of Cook County; the Hon. John C. Garveb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 1,1901.
    Chdboh, McMurdy & Shebman, attorneys for plaintiff in error.
    Stephen G. Swisheb, attorney for defendant in error.
   Mb. Presiding Justice Freeman

delivered the opinion of the court.

This is a replevin suit brought by defendant in error to recover certain property which had been levied upon bv plaintiff in error as sheriff, under executions against one Matthew Ledwidge. It is claimed by defendant in error that the goods in question, which were in a warehouse controlled by said execution debtor, Ledwidge, were deposited there for storage, and were the property of defendant in error, subject to his disposition at any and all times. The issues were submitted to a jury, and the trial of the replevin suit resulted in a verdict finding the right of possession of the property described in the writ to be in the defendant in error. From the judgment entered upon this verdict this writ of error is prosecuted.

It is contended that the trial court erred in certain rulings on the admission of evidence. The principal of such alleged errors is that it is claimed testimony was excluded, offered to show that the executions under which the sheriff had seized the property taken from him under the replevin writ, were so levied by the express direction of an authorized agent of the plaintiff in the replevin suit. The court did refuse to allow a witness, who was attorney for the execution creditors, to state wliat, if anything, one Shaw, alleged to have been agent of the defendant in error, directed to be done under those executions. The attorney testified, however, that he instructed the sheriff to levy on the goods of Ledwidge, the execution debtor,which was certainly proper. As the question relating to Shaw’s supposed directions was put, we do not regard the action of the court in sustaining an objection to it as erroneous. The contention of counsel for plaintiff in error seems to be that Shaw, as agent of Trench, the defendant in error, directed the sheriff to levy on the property in the warehouse, including the goods in controversy, as the property of Ledwidge, the execution debtor; and that his principal, Trench, was hence estopped from thereafter claiming an}*- part of them as his own. But assuming that Shaw did give such directions, it would still be necessary to prove that he did so with a full knowledge that his principal’s goods were so included, and further that-it was within the scope of his authority to so direct. Mo such evidence was offered. This is not a case where the defendant in error had voluntarily mingled his own goods with those of the execution debtor, as in Reiss v. Hanchett, 141 Ill. 419, cited by counsel for plaintiff in error. If they were mingled, it was done by the execution debtor. To constitute estoppel by the alleged conduct of Shaw, it was necessary to show something more than an agency of the latter. “ An essential element of an estoppel by conduct is that the representation or concealment of material facts must have been with .knowledge of such facts.” Reiss v. Hanchett, supra, p. 424. Eo evidence was offered tending to show any misrepresentation or concealment of facts, such as might establish estoppel.

We find no error in the refusal of the court to give the first four instructions requested by the plaintiff in error. These were designed to instruct the jury that a party, knowingly standing by while his property is taken by the sheriff, as that of a third person, without objection, is estopped from afterward .claiming it. The evidence did not warrant such instructions in the present case. The fifth refused instruction, while containing some propositions which might properly have been given, was vitiated by others clearly erroneous, which we do not deem it necessary to enlarge upon.

It is said that of the 600 boxes of tin sought to be seized under the replevin writ, by an error thirty-two boxes were taken which were not the property of defendant in error, and a corresponding number of boxes, which were his property, were left in the possession of plaintiff in error, and sold by him under his executions. There is a statement by counsel that when the alleged mistake was discovered an effort was made to exchange with the sheriff, but the latter refused to rectify the mistake, and that on application to court — to what court or when does not appear — the court refused to correct the mistake. It is now urged that the judgment can not be sustained, because it includes thirty-two boxes to which defendant in error was not entitled. If this is true, of course the judgment would be to that extent erroneous. As stated by the trial court: “ If, by the writ, they took something that did not belong to them, that should be returned, and they could hold in trover for what they could not get.”

Looking at the pleadings, we find that the writ, affidavit and declaration describe 600 boxes of certain specified kinds of tin; that the return of the coroner recites the taking of the property so described; that the plaintiff in error specially pleaded that the “ taking and detention in the declaration above specified,” was by virtue of certain executions, and that this property so described, was the property of the defendant in replevin, etc. The cause was tried upon the issue made by the pleas of justification. The verdict of the jury found the defendant in error entitled to the property so specified and described, and this finding is abundantly justified by the evidence. The verdict and judgment do not give defendant in error title to any other property. If he has wrongfully taken any other, or has not obtained all that the judgment awards to him, he is still liable for any wrongful act, and no one else can complain of any loss he may suffer, by failure to get all he is entitled to. This verdict and this judgment award to him only the property described in the pleadings, and in this judgment we find no error.

There are other matters discussed in the briefs, which we have .duly considered, but deem it unnecessary to discuss at length herein. The judgment of the Circuit Court must be affirmed.


source: Caselaw Access Project

author: Mr. Justice Waterman

license: Public Domain

text:
    Arthur Harris v. Coleman & Ames White Lead Co. et al.
    1. Promissory Notes — Oral Evidence Not Admissible to Vary the Import of. — Oral evidence will not be heard to vary the import of a promissory note.
    3. Same — When the Addition to the Name of a Signer is a Mere Discriptio Persones. — A note in following form, viz.—
    “$1,000.00 Chicago. March 7th, 1893.
    Sixty days after date I or we promise to pay to the order of Geo. P. Harris & Bro., one thousand 00-100 dollars, with interest at 7 per cent per annum from date, at 218 1st Nat'l Bk. Bldg.
    Coleman & Ames White Lead Co.,
    Coleman & Ames Per C. I. Williams, Sec.
    [Seal] George J. Williams,
    White Lead Co., Geni. Mangr.
    Chicago, 111.”—
    is the note of the Coleman & Ames White Lead Company and George J. Williams, and parol evidence is not admissible to show that the said George J. Williams signed the same in any other character than as a joint maker with the white lead company.
    Assumpsit, on a promissory note. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed, and judgment entered in this court, with a finding of facts.
    Opinion filed November 1,1901.
    Statement. — This was an action in assumpsit brought by appellant and his copartner, George P. Harris, doing business under the firm name of George P. Harris & Brother, against the Coleman & Ames White Lead Company and George J. Williams. George P. Harris having died, the suit was Continued in the name of Arthur Harris, as surviving partner. The action was brought upon a promissory note in the following form:
    $1,000.00 Chicago, March 7th, 1893.
    Sixty days after date I or we promise to pay to the order of George P. Harris & Bro., one thousand 00-100 dollars, with interest at 7 per cent per annum from date, at 218 1st Hat’l Bk. Bldg.
    Coleman & Ames White Lead Co.,
    Coleman & Ames Per C. I. Williams, Sec.
    [Seal] George J. Williams,
    White Lead Co., Geni. Mangr. .
    Chicago, 111.
    It appears that George P. Harris & Brother, for about two years previous to the giving of the note in question, • had dealings with the Coleman & Ames White Lead Company amounting to $15,000 or $16,000. The account had been reduced to $3,000, which had been running for a long time, and in August, 1892, a $3,000 note with $1,000 indorsement thereon was given in settlement of the account. Later a second note was given, and finally the third and last note, the one sued on.
    A demurrer was sustained to an amended declaration and judgment rendered in favor of the defendant Williams. The plaintiff appealed the case and the judgment was reversed and the cause remanded. (58 111. App. 366.) On remanding the cause, it was tried before the court without a jury. The court admitted the testimony of the defendant Williams to the effect that when he signed the note he signed it as an officer of the corporation.
    The court found the issues and rendered judgment for the defendants. .
    Edward F. Abbott, attorney for appellant.
    A. Morris Johnson and C. Milne Mitchell, attorneys for appellees.
   Mr. Justice Waterman

delivered the opinion of the court.

By the former decision it is established for this court, as the law of this case, that the note is upon its face that of two persons, viz., the Coleman & Ames White Lead Company and George J. Williams. Such being the case, can this written instrument, by the testimony of one of the parties thereto, be shown to be not what upon its face it is ? In other words, can its plain import be varied by oral evidence ?

In Pike v. Hately, 62 Ill. App. 387, evidence had been admitted by the trial court that an apparent indorser had agreed to guarantee payment of the note.

Such admission, changing the position of an apparent indorser to that of a guarantor, was held to have been improperly admitted, and the judgment against an indorser, thus shown and made to be a guarantor, was reversed without remanding the cause.

Upon appeal the Supreme Court, 162 Ill. 241, held that the word “ President ” following the indorsement “ Adolph Pike ” was but a discriptio personae, and that parol evidence to contradict the contract of indorser and to show that Pike’s intention and agreement was to become a guarantor, was inadmissible, the court saying:

“ Where the contract is that of an indorser, parol evidence is not admissible to vary the liability created by such contract, by showing that it was a contract of guaranty or that it was any other kind of a contract than one of indorsement.”

And this is true, whether the indorsement consists merely of the indorser’s signature, or whether the agreement imparted by the signature is written in full.

In Burlingame v. Brewster, 79 Ill. 515, C. C. Warren, Thomas Pendrim and Charles M. Smith, for building material furnished to the First Universalist Society of Earlville, signed a promissory note reading, “I promise to pay Joseph Brewster,” and appended to their signatures the words “as trustees of First Universalist Society.” The payee tore from the note the words “as trustees of First Universalist Society” and without informing A. C. Burlingame of what he had done, obtained his signature, it being placed below that of the three first signers.

The Supreme Court said:

“ There being no pretense that the note has been altered or changed since appellant’s signature was affixed to it, the only inquiry is, did the tearing of the words ‘ as trustees of First Universalist Society of Earlville ’ from'the note materially change or alter it, so as to discharge the previous signers from liability on it % If it did, it is evident that appellant’s liability is affected, for he signed upon the assumption of the co-liability of these parties; if- it did not, he is unaffected by the alteration and the defense is properly disallowed.

The body of the note shows a personal undertaking. Its language is, ‘ I promise to pay,’ etc., which is inconsistent with the idea of corporate liability; and while the words torn from the note, following the signatures, would show that it was as trustees they were induced to make the note, they do not show any attempt, by words usually deemed apt" for that purpose, to bind the corporation. Such notes have been repeatedly held to be the mere personal undertaking of the signers. Hills v. Bannister, 8 Cowen, 31; Eaton v. Bell, 5 Barn. & Adolphus, 34; Sturdivant v. Hall, 59 Me. 172; Barlow v. Congregational Society in Lee, 8 Allen, 460; Andrews v. Estes, 11 Me. 270; Slawson v. Loring, 5 Allen, 342; Draper v. Mass. Steam Heating Co., 5 Allen, 338.

Our conclusion- is, that the alleged alteration of the note in nowise affected the liability of any of the signers to it, and there was no error in "the ruling of the court below.”

In Hypes v. Griffin, 89 Ill. 134, suit had been brought and judgment obtained upon a note reading:

Lebanon, III., July 6, 1867.
“ On the 9th day of October, 1867, we, the trustees of the Methodist Episcopal Church in Lebanon, promise to pay .to Joseph Griffin, or to his order, $2,000, with interest at the rate of ten per cent per annum from October 9,1866.
Witness our hands and seals.
Henry Brown. [Seal] Benjamin Hypes. [Seal]
T. A. Shepherd. [Seal] Zeno Scot. [Seal].”

A special plea was filed, the substance of which was, that the payee of the note was a member of the Methodist Episcopal Church at Lebanon and well knew that defendant signed the note in his capacity of trustee and that it was understood and agreed between the payee and defendant that defendant should not be individually or personally liable to the payee on account o'f having signed the writing; that it was well understood by the payee when defendant and the other makers executed the note, they were acting in the capacity of trustees of the church; that they intended to obligate the church corporation, having full authority in that regard, and did not intend to bind themselves personally or individually by the writing.

The court sustained a demurrer to the plea and the defendant electing to stand by his plea, the sustaining of the demurrer was assigned for error in the Supreme Court.

The Supreme Court affirmed the judgment and said :

“ The question made on the plea is, can the facts alleged be shown by extrinsic evidence — by parol testimony ?
“ On the face of the instrument signed by defendant, his undertaking is absolute; and to permit him to show by oral testimony that in no event was he to incur any personal liability by the writing, would be to contradict and vary the terms of his positive written agreement and was not, in fact, to be binding on him. Mann v. Smyser, 76 Ill. 365.”

Our attention is called to Miers v. Coates, 57 Ill. App. 216; Scanlan v. Keith, 102 Ill. 634; Frankland v. Johnson, 147 Ill. 520; McNeil et al. v. Shober & Carqueville Lithographing Company, 144 Ill. 238; Fish v. The Carbonized Stone Company, 67 Ill. App. 327, and Zion Church of Sterling v. Mensch, 178 Ill. 225, it being insisted that they sustain the action of the court below.

The note sued upon in Miers v. Coates, was such that the Appellate Court said of it:

“ We think that the notes in question were executed in conformity with the method first indicated in the foregoing quotation, and that they bear on their face sufficient evidence of their being the notes of the corporation to repel any belief on the part of anybody dealing with them that they were the individual notes of the persons whose names, with official indications, followed the name of the corporation.

It does not seem as if any holder of the notes could claim to be ignorant of the true character of notes so signed. Metcalf v. Williams, 104 U. S. 93.”

In Scanlan v. Keith, the Supreme Court said:

“Whatever may be the decisions elsewhere on analogous questions, the authorities in this State are full to the point a party will not be permitted to show, by oral testimony, that his written agreement, understanding^ entered into, was not in fact to be binding on him. Accordingly, it wTas held in Hypes v. Griffin, 89 Ill. 134, mainly on" the authority of Powers v. Briggs, 79 Ill. 493, that where trustees of a church corporation made a note in their individual names, although they described themselves as trustees of the church, parol evidence was inadmissible to show it was the intention of the parties it was to be the note of the church corporation, and not the note of the trustees executing it. The principle running through that and other cases in this court is, that such instruments will be construed as the parties made them, without the aid of extrinsic evidence. That rule of interpretation would seem to be as well settled in this State as any rule can be.”

The note sued upon in Frankland v. Johnson was as follows:

“$5,592.00. Chicago, June 1, 1885.
On or before the first day of June, 1888, the Western Seaman’s Friend Society agrees to pay L. M. Johnson, or order, the sum of five thousand five hundred and ninety-two dollars, with interest at the rate of six per cent per annum.
B. Frankland, Gen. Supt.”

Evidence was admitted by the trial court to show that Frankland had no authority to execute a note for the society, and that it was by him and the payee intended that he should be individually bound.

The Supreme Court said :

“ The propositions submitted to the trial court by appellant, to be held as law applicable to the case, are mainly requests to hold certain facts to have been proved, and, under the evidence, they were , properly refused. In fact, no argument is made in support of them. There is but one theory upon which the judgment below could be reversed by this court, and that is, that the note sued on must be held to be the contract of the corporation, absolutely and conclusively, and all parol proof tending to establish appellant’s liability was incompetent — and that theory is clearly untenable.”

In McNeil et al. v. Shober & Carqueville Lithographing Company, the court, in sustaining a judgment against McNeil and Dexter, whose signatures to the note sued upon were as follows — “Malcolm McNeil, President World’s Pastime Exposition Company, Albert F. Dexter, Treasurer,” say:

“And the court, while holding correctly that, prima facie, it was the note of McNeil and Dexter, submitted the question of fact to the jury, whether they intended to give their individual note, or to execute a note for and on behalf of the corporation only. It is wholly unnecessary to determine the admissibility of this evidence, or the correctness of the rulings in the submission of the case, for the reason that the holding was as favorable to appellants as they asked, or could ask under the most liberal of the adjudged cases, and if error was committed it was at their instance, and in their favor.”

In Fisk v. The Carbonized Stone Company, 67 Ill. App. 327, the note upon which suit was brought was manifestly that of the defendant corporation.

The question whether evidence as to the character in which the president and secretary of the company signed their names was admissible, was not passed upon by the Appellate Court.

Zion Church of Sterling v. Mensch, 178 Ill. 225, arose out of a bill filed to foreclose a mortgage; appellant contending that there had been and was no authority for executing the mortgage in its name. The Supreme Court sustained the mortgage as a valid claim and incumbrance upon the church proper.

The Supreme Court of this State has consistently adhered to the doctrine, many years ago announced, that oral evidence •will not be heard to vary the plain import of a promissory note.

The judgment of the Circuit Court is reversed, and judgment upon the note will be entered upon a finding of facts, and the case will be remanded to the Circuit Court, in order that execution from said court may sue on the judgment here entered.

Eeversed; judgment here for $1,505, and execution, with finding of facts by this court.

Finding of Facts. — The court finds that the note sued upon is upon its face a note made by the Coleman & Ames White Lead Company and George J. Williams and that there is now, November 1,1901, due thereon from the Coleman & Ames White Lead Company and George J. Williams, the sum of $1,000, with interest thereon at seven per cent, per annum from March 7, 1893, being in all fifteen hundred and five dollars.


author: Mr. Presiding Justice Freeman

text:
    Patrick Duffy et al. v. The People.
    1. Witnesses — Credibility of — Disadvantage of the Appellate Court. — The Appellate Court is at a disadvantage in passing upon the credibility of evidence as compared with the trial court, which has the witnesses before it, where their demeanor upon the witness stand as well as their oral testimony are elements throwing light upon their credibility.
    Indictment for an Assault, etc. — Appeal from the Criminal Court of Cook County: the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900. Affirmed.
    Opinion filed November 1, 1901.

      C. Porter Johnson and Chas. B. Stafford, attorneys for appellants.
    Charles S. Deneen, State’s Attorney, for appellee; Ben. M. Smith and W. S. Elliott, Jr., of counsel.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

Appellants, Patrick Duffy and John Keim, were indicted with one Ole Oleson in the Criminal Court of Cook County for an alleged assault with intent to kill made upon one Henry Hornburg. A jury was waived by the defendants, Duffy and Keim, and the issue submitted to the court. Oleson has never been arrested. The court found the appellants guilty, and sentenced [them to the county jail, each for the term of ninety days, and to pay fines of fifty dollars and costs.

It is urged that the finding is not justified by the evidence. The complaining, witness, Hornburg states that as he was proceeding homeward upon a South Halsted street car, and about to alight therefrom, near Thirty-first street, some one, who he afterward said was Keim, grabbed him from behind, pushed him from the car, jumped after him and seized him; that he was then, while thus held by Keim, struck by Duffy, who, with Oleson, had jumped from the rear end of the same car; that he was struck by both Keim and Duffy before he succeeded in breaking loose, while Oleson stood by and encouraged them, calling out: “Hit the son of a bitch another one for me;” that when Horn-burg called for help, Keim called out to a fireman, who showed a disposition to interfere, “Hold on! it is nothing but a dirty scab, and I am going to finish him.” It appears that at the time of the assault there was a strike in progress among workingmen engaged in the trade pursued by the parties.

The main question raised by the appellants’ attorney is the correctness of the identification. It is also urged that there was no motive for the assault on the part of these defendants, and that the testimony establishes an alibi in their behalf.

Hornburg’s testimony is to the effect that he had worked a long time in the same shop with the defendants, and knew them well. His testimony is clear and positive that he identified them not only by their faces, but by their voices as well, and that he saw them by the light of an electric arc light close by. As to defendant Keim there is also evidence that at the time of his arrest a conversation occurred between him and his principal witness which tends to indicate that they were both aware of his participation in the assault.

It is urged that there is no evidence against Duffy but the testimony of the complaining witness. There is direct conflict. Hornburg swears that Duffy was present and struck him, which Duffy denies. ¡Neither is corroborated by evidence entitled to much weight. It is especially a case where an Appellate Court is at a disadvantage in passing upon the credibility of evidence as compared with the trial court, which had the witnesses before it, where their demeanor upon the witness stand, as well as their oral testimony, were elements throwing light upon their credibility.

It is urged that Hornburg was mistaken as to Oleson’s presence, and hence was mistaken as to the others. It is by no means proven that Oleson was not present, and that argument is therefore without force. We have carefully considered the entire case and can find no sufficient reason to justify our interference, neither for lack of motive nor because of the effort to establish an alibi.

The judgment of the Criminal Court must be affirmed.


author: Me. Justice Shepard

text:
    Pioneer Fire Proof Construction Co. v. Caroline Sandberg, Adm’x, etc.
    1. Evidence — Conjectures Can Not Supply Proof. — Where the cause of an accident is mere matter of conjecture, such conjecture can not supply the place of proof.
    2. Negligence— What Does Not Prove It. — The mere fact that a hook, used in hoisting planks in the construction of a building, loosened its grip and let the planks fall, does not prove negligence on the part of the employer.
    3. Same — Always a Question to be Proved as Averred. —Negligence is always a question of fact to be alleged and proved as averred. It can not be supported by mere conjecture or surmise, but must be made referable to some specific cause or defect.
    4. Same — Not to be Imputed from Methods in General Use. — Negligence can never be imputed from the mere employment of methods in general use in the business in which an accident occurs.
    Trespass on the Case. — Death from negligent act. Appeal from the Circuit Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded.
    Opinion filed November 1, 1901.
    Statement. — This was an action brought by Caroline Sandberg, administratrix of the estate of John Sandberg, deceased, for the death of her husband, the said John Sandberg. On July 17, 1897, the appellant was engaged in fire-proofing the building known as “ The Fair ” in Chicago. This work necessitated, in the first instance, the laying of a plank flooring at' each story upon which the tile might rest until set. The work proceeded with two floors at a time. The deceased was then in the employ of the appellant and was engaged in receiving sixteen-foot plank hoisted up from the fifth to the seventh floor. The building was constructed with an air shaft in the middle about 20x20 feet. It was up through this shaft the planks were hoisted. The tackle used was a single pulley block that was fastened to and hung down a foot or so from a cross-beam that extended across a corner of this air shaft and rested on the eighth story floor beams. Through this pulley block ran a rope, with both ends hanging down to the fifth floor, which had just been finished and from which the planks were being taken. To one end of this rope was attached an iron hook. Men on the fifth floor wound the hook end of the rope twice about the planks, caught the hook over the rope leading from the plank to the pulley, and hoisted them away to the seventh floor, where the deceased, with another man, was stationed to receive them. The planks were sixteen feet long and were hoisted up two at a time. It was necessary they should go up in a perpendicular position that they might not swing and catch as they were going up, against the floors and beams. For this reason the rope was wound around the plank from four to five feet from one end. The distance between the seventh and eighth floors was approximately eleven or twelve feet. The steel work had been constructed or riveted together for the ninth story, or second floor above where Sandberg was receiving plank. The work of hoisting to the seventh floor had just begun. Not more than two loads had been landed there. It was while receiving the second or at most the third load, that the accident occurred, which resulted in the death of the deceased. He was standing upon a steel beam at the edge of this air shaft, drawing in this load, when the hook slipped off the rope, and the plank fell, throwing Sandberg down the air shaft to the ground.
    The contention of appellee is that the pulley should have been hung higher — on the ninth floor instead of the eighth; that the pulley, placed as it actually was, left so little room that in order to raise the sixteen-foot plank in the perpendicular position necessary, clear of the seventh floor, to draw them in, jammed the hook up against the block and crowded the hook off the rope, causing the plank to fall as soon as the line was slacked a little and loosened the jam.
    The deceased was at the time of his death twenty-eight years old, strong and robust. He was earning $2 a day. There survived him his wife, the plaintiff, and a son born four months later.
    Ameeigus B. Melville and Frank J. Oanty, attorneys for appellant.
    Gutting, Castle & Williams, attorneys for appellee.
   Me. Justice Shepard

delivered the opinion of the court.

The only negligence charged in the declaration is that while the deceased “was standing upon said iron girder for the purpose of receiving such lumber as the same was hoisted to him, the said defendant carelessly and negligently so fixed the upper support for said hoisting apparatas that the same was not far enough above the position where the said deceased was stationed, so that the lumber could be safely swung onto the iron beam upon which said deceased was stationed as aforesaid, and by reason of such carelessness and negligence on the part of the said defendant in so fixing the upper support of said hoisting apparatus the first load of lumber carried to the position occupied by the said deceased slipped from its fastenings and fell onto and upon the said deceased, and by its weight then and there on the day last aforesaid struck and forced the said deceased from the said iron beam where he had been stationed by the defendant aforesaid, so that the said deceased fell to the floor, a great distance, to wit, one hundred feet, whereby and by reason whereof the said John Sandberg was then and there killed.”

We gather from the evidence that the method of taking in the lumber from the hoistway, was that when the lumber was hoisted high enough for the lower ends to be swung' clear of the floor girders on which the men who received it stood, for one of the men — in this instance the deceased — to take hold of the lumber near its lower end and step back, pulling the load with him, and that as soon ás he began to move back, for the rope to be slackened and thus allow the load to be drawn in and rested on the girders.

The evidence shows, or tends to show, that in this case the lumber continued to be hoisted until the hook that was holding to the rope around the lumber, was up against the pulley block, and that about half a minute afterward, when the rope was slackened to respond to the pull inward, of the load, “the planks went down,” drawing the deceased after them.

It seems that the hook was in some way loosened from its hold around the rope, while it was up against the pulley block, or immediately after the rope was slackened. There is no evidence that the hook became broken or contained any defects, either in shape or substance, either before or after the accident. The evidence is, simply, that the hook let go, or went off the rope. What caused the hook to loosen its hold around the rope is not proved directly, and can not be said to have been established by any legitimate inference to be drawn from the proof that was made. It may be it was crowded off the rope by being jammed against the block, as is said in the statement of appellee’s contention, but that inference is no more certain than that it was caused by inadvertent manipulation of the rope by fellow-workmen of the deceased, or by other things that are readily presented to the mind. So far as is shown, what made the hook let go its hold is mere matter of conjecture, and conjecture in such matters can not supply the place of proof.

That the hook did not become loosened because of the negligence of appellant in the hanging of the pulley block or because of any defect, latent or otherwise, in the hook or rope, is completely negatived by the evidence introduced by the appellant.

It was shown by so many witnesses as to be beyond dispute, that the method of hoisting and hanging the appliances therefor, were the usual ones, and familiar to all the workmen, including the deceased. Nothing appears to have broken, neither the hook, the rope nor the pulley block or fastenings, nor anything else. The mere fact that the hook loosened its grip and the planks fell does not prove that the appellant was negligent in any respect declared on.

Negligence is always a question of fact that must be alleged and proved as averred. It can not be supported by mere conjecture or surmise, but must be made referable to some specific cause or defect. Dobbins v. Brown, 119 N. Y. 188.

The negligence here contended for is that the upper support of the hoisting apparatus was not far enough above • the floor of the seventh story to admit of the safe swinging of the load onto the girders of that story, where the deceased was stationed to receive it. But the evidence is overwhelming that the method pursued ivas the usual one, and the deceased, from his long-continued employment at the same kind of work, was familiar with it. Nesdis'ence can never be imputed from the mere employment of methods in general use in the business. Reese v. Hersbey, 163 Pa. St. 253.

Upon the record before us we are unable to discover the evidence of any actionable negligence that the appellant was guilty of, under the declaration.

On the evidence the motion to take the case from the jury ought to have been allowed. The judgment will have to be reversed and the cause remanded.


text:
    Manufacturers’ Paper Co. et al. v. Royal Trust Co. et al.
    1. Voluntary Assignments — Creditors Who Are Required to Give Their Consent to a Discontinuance of the Proceedings, Defined. — Under the statute relating to voluntary assignments, creditors of the insolvent, a majority of whom in number and amount are required to give their assent as a condition precedent to a discontinuance of the assignment proceedings, are those who file their claims within three months from the publication of the notice by the assignee, and a list of whom is reported by him and filed with the county clerk at the end of the three months.
    2. Same — Order of Discontinuance, When a Nullity. — The court can not judicially know that the majority in number and amount of the creditors of an insolvent have consented to a discontinuance before the three months have elapsed and an order of discontinuance entered before the three months have elapsed is not only premature but a nullity and void.
    Proceedings Under the Act Relating to Voluntary Assignments.— Appeal from the County Court of Cook County; the Hon. Oerin N. Carter, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded.
    Opinion filed November 1, 1901.
    Statement. — Appellants filed, January 6,1900, a petition in the matter of Bobert Lindblom, insolvent, representing that they were creditors of said Lindblom, at the date, May 9, 1898, when a voluntary assignment of the latter to the Boyal Trust Company, appellee, was filed in the County Court; that on the 12th day of July, 1898, said assignee filed in said court petitions of certain creditors, and of the insolvent, for discontinuance of the assignment proceedings, and that an order was the same day entered, finding that the insolvent was entitled to have the proceedings dismissed, and directing the assignee to turn over to said insolvent the assets of said estate remaining in its hands, and thereupon stand discharged of and from all further liability in respect of said estate. The petitioners allege that said order of discontinuance was a nullity and absolutely void, and pray that it may be set aside, and the assignee directed to proceed with the administration of the insolvent estate. The assignee has entered its special appearance for the purpose of contesting the jurisdiction of the court to grant the relief prayed for, and upon hearing, the County Court dismissed the original amended petitions; from that order this appeal is prosecuted.
    Defrees, Brace & Bitter, attorneys for appellants.
    Hamline, Scott & Lord, attorneys for Boyal Trust Co., appellee.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

It appears that the assignment was made May 9, 1898. The assignment act provides (Sec. 2, Chap. 10, B. S.) that the assignee shall give notice of the assignment by publication, and shall also send notice by mail to each creditor of whom he shall be informed. This publication in the case before us was made May 21, 1898. Section 10 of the same act provides that “ Creditors who shall not exhibit his or her or their claims within the term of three months from the publication ” of such notice “shall not participate in" the dividends until after the payment in full of all claims presented within said term allowed by the County Court.” The order of discontinuance complained of, was entered July 12, 1898, less than two months from the publication of notice, and before the expiration of the time allowed by statute within which creditors could appear. The statute (Sec. 15) provides for discontinuance of the assignment proceedings, “ upon the consent in writing of such debtor, and a majority of his creditors in number and amount.” But the creditors, the majority of whom in number and amount are required to give their assent as a condition precedent to such discontinuance, are those who file their claims within three months from the publication of notice, and a list of whom is so reported by the assignee and filed with the county clerk at the end of the three months. Until that time as said in Higginbotham v. Title & Trust Co., 182 Ill. 68-73, the County Court could not “judicially know that the majority in number and amount of the creditors” had consented toa discontinuance, and the court had therefore “no poxver to enter the order of discontinuance before the three months had elapsed.” The order of July 12, 1898, was therefore not only premature, “it was a nullity and absolutely void,” and being xvithout any force or effect xvhatexTer, the assignment proceedings must be deemed still pending in the County Court in the same manner and to the same extent as if the order of discontinuance had not been entered, and the County Court had power to set aside such order at any time, ex7en at a subsequent term. Higginbotham v. Title and Trust Company, supra (p. 75).

But it is urged by counsel for the assignee, that the petition on its face did not entitle the petitioners to require the court to set aside the x7oid order of July 12th, because it does not show that they filed any claims with the assignee during the three months alloxved for the purpose, either before or after the entry of the order of discontihuance. The petition, howe\Ter, does present upon its face facts showing the invalidity of the order, and it also states that petitioners xvere and are creditors of the insolvent, and that upon the entry of said order, the assignee ceased to perform the duties and exercise the functions of assignee. The question is not as to whether the petitioners will be entitled to participate in dividends until after the payment in full of all those whose claims xvere filed within the three months. That question is not now before us. Assuming that it may hereafter appear that appellants are not entitled to participate in dividends in the first instance, the court can not, as yet, judicially know that there are not sufficient assets to pay the creditors who exhibited their claims within the three months in full, and leave assets in which remaining creditors will be entitled to share.

We are of opinion that the petition was improperly dismissed and the order of the County Court is therefore reversed and the cause remanded.


author: Mr. JnsTioE Waterman

text:
    John K. Allen and John S. Palmer v. The D. H. Ranck Publishing Co.
    1. Sales — Of a Periodical on Condition. — Where one party sells to another the effects, property and good will of a periodical, the publication of which he agrees to continue, and to pay therefor fifteen per cent of the gross receipts quarterly until such payments aggregate the sum of three thousand dollars, the title of the property sold to remain in the vendor until full payment is made, the vendee, however, having the right to pay the three thousand dollars at any time and to receive a bill of sale, held, that the vendee had an absolute right to pay the sum mentioned at any time, or to pay the fifteen per cent of the gross receipts until such payments amounted to the three thousand dollars, and to claim for himself an absolute title.
    3. Same — Executory Contracts — Right of Recovery Under. — Where a party buys the effects and good will of a periodical for the sum of three thousand dollars, agreeing to continue its publication and to pay fifteen per cent of the gross receipts quarterly until the payments amount to the sum of three thousand dollars, by refusing to continue its publication according to his agreement, before the receipts amount to the sum mentioned, he gives the vendor a right of action to recover the amount of the purchase price remaining at the time unpaid.
    3. Contracts — To Be Performed in the Future where the Party Refuses to go on with His Undertaking. — Where a party to a contract to be performed in the future refuses to go on with his undertaking, the question as to whether the other party may bring suit before the period for performance has arrived has elicited much discussion and divergence of opinion. (See cases cited in the opinion.)
    Assumpsit, on a contract to be performed in the future. Error to the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 1, 1901.
    J. V. A. Weaver, attorney for plaintiffs in error.
    J. D. Riley, attorney for defendant in error.
   Mr. JnsTioE Waterman

delivered the opinion of the court.

The Ranck Publishing Company, in February, 1894, sold to the plaintiffs in error, defendants below, the effects, property and good will of a periodical, known as “ Milling,” they agreeing to continue the publication of said magazine and to pay therefor fifteen per cent of the gross receipts of such publication, quarterly, until such payments aggregated the sum of $3,000, the title of the property so sold to remain in the vendor until full payment had been made, the vendee having the right to pay said $3,000 at any time, and thereupon receive a bill of sale.

The property was delivered to the vendees and they . entered upon and continued the publication of the magazine until the fall of 1896, when publication was, by them, finally suspended.

Thereafter the vendor brought suit, and admitting having, during the publication, received from the vendees $741.24, recovered, in February, 1900, a judgment for $2,258.76, being the balance of the $3,000, to be paid out of the gross receipts.

Plaintiff in error insists that as the title, under the terms of the contract, had not passed at the bringing of the suit, the sale was conditional, and that the vendor can not recover the purchase price. The sale was absolute; that is, the vendees had an absolute right to pay at any time or to pay fifteen per cent of the gross receipts until such payments amounted to $3,000, and thus entitle themselves not only to possession and use, which they already had, but to absolute title. That they had not absolute title is their own fault; in no wise that of the vendor.

By refusing to go on with the publication, as .they agreed, they made it impossible that there should be gross receipts, fifteen per cent of which will amount to the purchase price. They thus gave to the vendor a present right of action to recover the amount of the purchase price remaining the,n unpaid. Kadish v. Young, 108 Ill. 170; Fox v. Kitton, 19 Ill. 519; Chamber of Commerce v. Sollitt, 43 Ill. 519; Lee v. Pennington, 7 Ill. App. 247; Lyon v. Culbertson, 83 Ill. 33-49; Roebling Sons Co. v. Lock Stitch Fence Co., 28 Ill. App. 184-188; Broom’s Legal Maxims, marginal paging, 250-279.

When one party to a contract, to be performed in the future, refuses to go on with his undertaking, the question of whether the other party may bring suit before the period for performance has arrived has elicited much discussion and divergence of opinion; as see Burtis v. Thompson, 42 N. Y. 246; Hollaway v. Griffith, 32 Iowa, 409; Freer v. Denton, 61 N. Y. 492; James v. Adams, 16 W. Va. 245; Daniels v. Newton, 114 Mass. 530; U. S. v. Behan, 110 U. S. 339; Dingley v. Oler, 117 U. S. 490-503; Johnstone v. Milling, 16 Q. B. Div. 460; Hochster v. De la Tour, 2 E. & B. 678; Roper v. Johnson, Law Rep. 8 C. P.

The instruction of the court that if the jury found that although the publication had gone on there would have been no more gross receipts, then under such finding the plaintiff could not recover, was certainly as favorable as the vendees could have expected. The judgment of the Superior Court is affirmed.


author: Mr. Justice Shepard

text:
    Alexander L. Dewar, Receiver, etc., et al. v. Isaac L. Ellwood.
    1. Receivers — Should Obey Orders of the Court Appointing Them. —A receiver has no interest in disobeying the orders of the court that appoints him, and in obtaining a review by an appellate tribunal of a decree directing him to pay over money, especially where a decree is made after a full hearing and determination of the merits of a claim, and he has no right to set up his own judgment against that of the court whose orders he is bound to obey.

      3. Chancery Practice — Duties of Parties Where Matters Are Referred to the Master. — When matters of fact are referred to a master in chancery and his findings are not supported by the evidence, it is the duty of the parties, where no sufficient excuse is shown for their not doing so, to interpose their objections before such master, and if unavailing there, to interpose exceptions to his report in the court to which such report is returned, and not having done so, it is too late to raise the • questions in the Appellate Court.
    Bill to Wind Up the Affairs of a Corporation. — Error to the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 1, 1901.
    JST. M. Jones, M. W. Hacicee and O. J. Ward, attorneys for plaintiffs in error.
    Cratty, Jarvis & Cleveland, attorneys for defendant in error.
   Mr. Justice Shepard

delivered the opinion of the court.

Upon a bill tiled to wind up the affairs of the D. Eggleston & Son Company, a corporation, the plaintiff in error, Alexander L. Dewar, was appointed and qualified as receiver. Among the creditors of the corporation who filed their separate and several claims, were the other plaintiffs in error, Maggie B. Eggleston and E. T. Mason & Co., and the defendant in-error, Isaac L. Ellwood.

Elwood claimed a total of $73,957.05, consisting of two items, one for $42,457.05, being a balance due on account of sundry purchases and sales of pork in the Chicago market, including money advanced by him; and the other for $31,500, being the sum claimed as damages for a breach by the company of a contract relating to the sale and purchase of pork, including moneys advanced.

The receiver allowed and paid dividends, without dispute or question, on the first item of $42,457.05.

The receiver refused to allow and has never paid any dividend on the second item for $31,500.

It is this claim for $31,500 that is in dispute, and the only point involved in the case, on its merits, is whether all or any part of said sum should be allowed and paid, and this question was principally one of fact.

. The claim, was referred to a master in chancery who took much testimony and reported an favor of allowing it, but upon the hearing by the court, of exceptions to the master’s report, and evidence taken in open court, the amount of the claim was somewhat reduced, and the decree entered that is now here for review.

Hone of the plaintiffs in error, except the receiver, objected to the allowance of Elwood’s claim, or filed objections to the master’s report.

The only persons who have joined in this suit in error are the corporation itself, the receiver, Maggie B. Eggleston and E. T. Mason & Co.

It seems from the record that the corporation is absolutely insolvent.

The preliminary motion of Elwood, the defendant in error, that was reserved to the hearing, to dismiss the writ of error, claims our attention first.

The decree directs that a payment of $28,000 and some interest be made by the receiver to Ellwood, out of assets remaining in the receiver’s hands which were reserved from former orders of distribution for the purpose of applying on Ebvood’s disputed claim of $31,500, in case it should be allowed. There is no question but the receiver has the money on hand with which to make the directed payment, or that he has any counter-claim of his own against the fund so reserved and remaining in his hands.

We are unable to discover any interest that the receiver has in disobeying the order of the court that appointed him, and obtaining a review by an appellate tribunal of the decree directing him to pay the .money. The decree wa^ made after a full hearing and determination of the merits of the claim, and the receiver had no right to set up his own judgment against that of the court whose orders he was bound to obey. Chicago Title & Trust Co. v. Caldwell, 58. Ill. App. 219; Stanton v. Andrews, 18 Ill. App. 552; Stevens v. Hadfield, 178 Ill. 532.

The prosecution of this suit by him is clearly wrong and the decree should be affirmed or the suit dismissed, as to him, as of course.

As to the corporation itself, and the claimed creditors Maggie B. Eggleston and E. T. Mason & Co., the other plaintiffs in error, we are of opinion neither they nor eicher of them are in a position to question the decree. They had their opportunity to be heard on the questions that were before the master on the reference to him, but none of them objected or excepted to his report and no order was ever obtained, or asked for, that the objections filed by the receiver should stand for their benefit.

The rule is that when matters of fact are referred to a master and his findings are not supported by the evidence, it is the duty of parties, where no sufficient excuse is shown for their not doing so, to interpose their objections before him, and if unavailing there, then, if they desire, to interpose exceptions to his report in the court to which it is returned, neither of which was done in this case. Jewell v. Rock River Paper Co., 101 Ill. 57; Kinsella v. Cahn, 85 Ill. App. 362; Lebkuechner v. Moore, 88 Ill. App. 16.

Although it affirmatively appears on the face of the decree that in addition to the evidence reported by the master, evidence was also1 heard in open court (that is not preserved in the record), and that consequently the presumption arises that the heard but omitted evidence justifies the decree, we may say that an examination of the evidence reported by the master discloses- abundant reason for sustaining the decree on the merits of the case.

The counter-motion of the plaintiffs in, error tobe allowed to amend by making additional parties, if the court shall hold that additional parties are necessary, must be denied. Counsel do not indicate what parties there are who might under any-circumstances have an interest in disturbing the decree. We do not hold that there are other necessary parties and we can see no useful purpose to be served by any such amendment and- prolonging of the litigation.

The order will be that the decree be affirmed.


text:
    Franklin C. Jocelyn et al. v. Charles G. White, and Frank R. Chandler, Trustee.
    1. Chancery Practice — Waiver of a Demurrer. — Where a joint and several demurrer to a bill in behalf of two of the defendants is overruled and such defendants are ruled to answer and fail to do so, and the bill is taken as confessed against them, it not appearing that they had elected to stand by their demurrer or showed any intention to do so, the demurrer is properly considered as abandoned, and the court and counsel for the complainant are justified in assuming that such defendants had acquiesced in the ruling upon the demurrer and confessed the bill, and the question as to whether the trial court erred in overruling the demurrer is not before the Appellate Court for review.
    2. Same — Objections to the Allowance of a Solicitors Fee. — Where a defendant desires to question the correctness of the master’s finding in favor of the allowance of solicitor’s fees, exceptions should be taken to the report on that ground, as the question can not be raised in the Appellate Court for the first time.
    3. Same — Where a Master is Properly Given Leave to Sign His Report Nunc Pro Tunc. — The objection that the master’s report, when filed, was not signed by him, where no objection on this or any other ground has been made, either before the master or the chancellor, but where the depositions of the witnesses and the certificate of evidence were duly signed by him, and also the draft of the decree as entered in ithe same case, it was held that the report was sufficiently identified, ¡and leave was properly given the master to sign the same nunc pro tunc.

    4. Appellate Court Practice — Objections to Evidence Must Be Made in the Court Below. — Where a party litigant in a chancery proceeding, while attending before the master by his solicitor, and at every stage of the proceeding in the trial court, makes no objection to the evidence nor to the master’s report, or to the decree, he is precluded in the Appellate Court from raising for the first time any objections which he might have made pending such proceedings.
    5. Same — Objections to Decrees to be Made in the Court Below. — An objection made in the Appellate Court for the first time to a decree to the entry of which no objection was made in the court below will not be considered.
    Bill of Foreclosure. — Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 1, 1901.
    Chester Firebaugh, attorney for plaintiffs in error.

      Stillman & Marttn, attorneys for defendants in error.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

Plaintiffs in error seek in this case to procure a reversal of a decree of foreclosure. The objections to the bill of complaint are technical, and it is probable that upon demurrer some of them at least might properly have been sustained. A joint and several demurrer to the bill was filed in behalf of two of the defendants, but was overruled by the chancellor, and said defendants were ruled to answer. Failing to comply with said rule, the bill was taken as confessed as to them by reason of such failure. It nowhere appears that they elected to stand by their demurrer or showed any intention so to do, and it was properly considered abandoned. The court and the counsel for complainants were justified in assuming that the said defendants had acquiesced in the ruling upon the demurrer and confessed the bill. The question, therefore, as to whether the Circuit Court erred in overruling the said demurrer is not now before us.

The other plaintiffs in error did not demur but filed their joint and several answer to the bill of complaint denying generally each and every allegation therein, merely stating in addition that complainant White is “ not the owner and holder of the note mentioned in the bill.” It appears, however, that their solicitor, while attending before the master and at every stage of the proceeding in the Circuit Court, made no objection to any of the evidence offered, nor to the master’s report, nor to the decree. They are therefore precluded from raising in this court for the first time objections which might have been made pending the proceedings there. Continental Investment & Loan Society v. Wood, 168 Ill. 421-424.

It is objected that the notice of sale provided for in the decree was unreasonably short. But this objection made here for the first time to a decree to the entry of which no objection was made, obviously can not now be considered. The same is true of the objection to the allowance of solicitor’s fees. “If the defendant desired to question the correctness of the master’s finding in favor of the allowance of solicitor’s fees, exceptions should have been taken to the' report on that ground, and that question can not be raised for the first time here.” Continental Investment and Loan Society v. Wood, supra.

It is further- objected that at the time the decree was entered certain documentary evidence which had been presented before the master was not before the court nor contained in the record. The master’s report recites that the evidence in question was duly offered at the hearing before him. It is stated that leave was given to withdraw certain of the original documents after their introduction. It does not, however, appear that they were so withdrawn, even temporarily; and if they were, there is nothing to show.that they were not produced at the time of entering the decree. It must be presumed, in the absence of any showing.to the contrary, and in the absence of any objections or exceptions to the report or decree, that the Circuit Court had before it at the time of the .confirmation of the master’s report and the entry of the decree, evidence which the report itself states was returned with and as a part thereof. The report recites that “ said testimony and documents are returned herewith as a part of this report.” Whether so or not, it is too late now to raise the objection for the first time. '

It is objected that the master’s report when filed was not signed by him. USTo objection to the report on this or any ground was, as above stated, made either before the master or before the chancellor, although the solicitor for the plaintiffs in error was duly notified to file objections before the master within a time fixed, and accepted service of such notice. While it is true that the report as a whole appears to have lacked the master’s signature at the time it was filed, the depositions of the witnesses and the certificate of evidence which were a part thereof, were duly signed by him, and also the draft of the decree as entered. These signatures sufficiently identified the report, and leave was subsequently given, properly, as we think, to correct the oversight nunc pro tunc, which was done.

It is urged with some force that the bill of complaint under which the decree was obtained, does not state facts sufficient to constitute a cause of action. The bill would doubtless have been much improved had it been made more full and specific. But, after a careful examination, we have reached the conclusion that it contains a statement of facts, sufficient in substance as a basis for the decree, which appears to have been entered without objection and practically with the consent of plaintiffs in error.

The decree of the Circuit Court must be affirmed.


author: Hr. Presiding Justice Freeman

text:
    The Werner Co. v. John McLaughlin.
    1. Appellate Court Practice — Proceedings in Reversed Oases.— Where a cause is reversed because the evidence fails to sustain the verdict and is remanded for a new trial, and at the second trial, evidence in addition to that had on the first trial is presented, but when on a second review of the case in the Appellate Court, a careful examination of the additional evidence fails to show that the plaintiff has strengthened his case, the cause will be again reversed and remanded.
    Assumpsit, on an account. Error to the County Court of Cook County; the Hon. Russell P. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded.
    Opinion filed November 1, 1901.
    Newman, Northrup & Levinson, attorneys for plaintiff in error.
    Wm. E. Hughes and John J. Coburn, attorneys for defendant in error.
   Hr. Presiding Justice Freeman

delivered the opinion of the court.

This cause has been here before, and at that time the judgment in favor of defendant in error was reversed, this court holding that “ the finding of the trial court can not be sustained by the testimony as the same is preserved in this record.”

In addition to the evidence in the former trial the defendant in error introduced four letters which were not offered before. It seems to be conceded that these letters constitute all the new evidence introduced at the second trial. The only question we have to consider is whether this additional evidence strengthens the plaintiff’s case, so that taken in connection with the other evidence given at the former trial, the whole evidence now sustains the judgment. The attorneys for defendant in error have failed to point out in what respect anything contained in these four letters throws any new light upon the controversy. A careful examination fails to show that the plaintiff has strengthened his case and for the reasons given at the former hearing in this court, the judgment of the County Court must be reversed and there will be a finding of facts.


text:
    Illinois Central R. R. Co. v. John McNicholas.
    1. Evidence — Of Acts Which Are Not, as a Matter of Law, Negligent. Admissible. — Where the rules of a railroad company provide that during periods of fog, a headlight on the engine should' be kept constantly burning, evidence of a failure to have the headlight burning at a time when the fog was dense and an employe is sent by his superior officer to make an inspection that might in the absence of due care for his safety, in the operation of its trains by the company, be attended -with peril to him, is competent and of a very important character, but such fact does not amount to negligence as a matter of law.
    2. Negligence — When a Question of Law and When of Fact. — It is only when the conclusion of negligence necessarily results from the statement of fact, that the court can be called upon to say to the jury that a fact establishes negligence as a matter of law, and that if the conclusion of negligence under the fact stated, may or may not result, or depends upon other circumstances, the question is one of fact for the jury.
    3. Same — Where the Evidence on Material Facts is Conflicting.— Where the evidence on material facts is conflicting, or where on undisputed facts fair-minded men of ordinary intelligence may differ as to the inferences to be drawn from it, or where on a conceded state of facts, a different conclusion may reasonably be reached by different minds, negligence is a question of fact.
    4. Same — Where It May Beeome a Question of Law. — Negligence may become a question of law where, from the facts admitted or conclusively proved, there is no reasonable chance of different reasonable minds reaching different conclusions. It may also become a question of law if a single material fact is conclusively shown or uncontradicted, the existence or non-existence of which is conclusive of a right of recovery.
    ' Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded.
    Opinion filed November 1, 1901.
    Statement. — This was an action for personal injuries brought by the plaintiff, John McNicholas, against the Illinois Central Railroad Company, which resulted, upon a trial, in a verdict and judgment for $1,000. Appellee, on the 31st of December, 1896, was employed asa section man and track walker of this railroad company, his work being between Ninety-fifth street and One Hundred and Third street, in the city of Chicago. At this point there are a number of tracks running in a generally north and south direction. Track No. 1 is used exclusively for south-bound suburban trains, running at very frequent intervals; track No. 2 for trains of a like character north-bound; track No. 3 for through south-bound trains, and track No. 4 for through north-bound trains. No trains run on track No. 1 except those south-bound, and a similar rule was followed as to the other tracks named.
    The duties of the plaintiff were to start each morning from Ninety-fifth street and inspect these tracks, together' with all switches and frogs and appurtenances of every character, as far south as One Hundred and Third street. To do this he generally walked south between tracks No. 1 and 2, examining rails, bolts, etc., on these two tracks. On his way back he walked between tracks No. 3 and 4, performing a like duty. He carried with him tools for the purpose of repairing any minor defects, such as a loose bolt or spike or defect of that character, and it was his duty in addition to inspecting to make all such repairs as he was able to do.
    On the morning in question he was told by .his section foreman (who had the power to hire and discharge the men under him) to get the name and number of a certain frog which had recently been put in, connecting track No. 1 with a switch in this territory. The morning was very foggy, and it was impossible to see objects except at a short distance. The evidence shows that an engine and train of cars could probably not have been seen at a distance over 200 feet, and that an engineer on a train could only see a person on the track at very much less distance. The plaintiff wTas unable to read or write, and he requested another employe named 01 well, to accompany him and write down on a piece of paper the name and number of this frog. The frog was located upon the east rail of the west track — track No. 1. The plaintiff had been performing the duties of a track walker, inspector, repairer and other like duties for a number of years. He was perfectly familiar with the tracks, and • with the fact that trains run south-bound on track No. 1 every few minutes. On the way to the place where the frog was located he was cautioned by 01 well to be careful about trains, on account of the fog. Upon arriving at the place where the frog was located neither of them observed that the inscription was both upon the inside and outside of the rail, but the plaintiff got down between the two rails of track No. 1 on his hands and knees, with his back toward the north, the direction from which all trains would approach, to read the inscription on the inside of the rail. 01 well on the contrary stood facing north so that he was able to see a train approaching as far as the fog would permit. In from half a minute to a minute after the plaintiff had placed himself in this position, a regularly scheduled suburban train, running practically on time, or perhaps a minute or two late, was seen approaching by Olwell, who immediately sounded the alarm and jumped out of the way. The engineer and fireman almost at the same time observed plaintiff in his position of danger down between these tracks on his hands and knees with his back toward the north and sounded a succession of alarm whistles, at the same time ringing the engine bell. Immediately, also, the engineer applied all possible brakes and brought the train to a stop as soon as possible. Plaintiff made a jump, but failed to get off in time and was struck, and injured, resulting in the loss of his right hand, and in some other injuries of a lighter nature.
    A rule of the railroad company provided that during periods of fog the headlight on the engine, even during daylight hours, should be kept constantly burning. The plaintiff was injured about ten o’clock in the forenoon.
    W. A. IIowett, attorney for appellant; Johr Gr. Drerhah, of counsel.
    . Charles H. Mitchell, attorney for appellee.
   Mr. Justice Shepard

delivered the opinion of the court.

Under the circumstances disclosed by the evidence the questions whether the defendant was guilty of negligence in the operation of its train, and whether the plaintiff was guilty of contributing to the injury received by him, because of his manner of performing the duty he was engaged in, were for the jury to determine. All these matters were determined by the jury on evidence that was in all controlling respects, essentially conflicting, and if there were no substantial error of law committed in the trial the verdict should not be disturbed.

As to errors of law, the appellant lays particular stress upon two of the plaintiff’s instructions, which were given, as to what facts constituted negligence.

These instructions were as follows:

“ 2. If you believe from all the evidence that the defendant ran its engine and train toward and upon the plaintiff while he was at work for it, if he was, upon its track, without having the headlight of such engine lighted at the time, and that at the time the track was obscured by a dense or heavy fog, and also if you believe from all the evidence that the defendant should under all the circumstances shown in evidence in the case as a measure of ordinary care in order to protect the plaintiff from unreasonably great risk of injury, if the same wás unreasonably great, have lighted the headlight, then the defendant was guilty of negligence in failing to light the same, if it did fail to light the same.
“ 3. If you believe from all the evidence that the defendant ran its engine and train forward and upon the plaintiff while he was working for it, if he was, upon its track, and in so doing, if it did, it failed to give him reasonably sufficient and timely warning of the approach of1 the same and in the exercise of ordinary care on its part to afford him reasonable protection from injury by said engine and train it ought to have been given him such warning and failed to do so, then you are instructed that the defendant was guilty of negligence.”

Whether or not the headlight was lighted and burning at the time of the accident was a subject about which the evidence was in direct conflict, with a probable preponderance in favor of the defendant, in numbers of witnesses and their opportunities of knowing. The fact was, clearly, not so certainly established as that different and reasonable men might not reasonably differ about it.

The failure to have the headlight burning at a time when the fog was dense, and when the plaintiff-had been sent out by his superior officer to make an inspection that might, in the absence of due care for his safety in the operation of the trains by the defendant, be attended with peril to him, was competent evidence of a very important character, but it did not amount to negligence, as a matter of law. The ultimate fact of negligence or no negligence would still have been a subject about which fair and reasonable-minded jurors might legitimately differ in their conclusions, upon a consideration of all the evidence in the case.

And what we have said applies equally to the third instruction concerning the failure by defendant to give reasonably sufficient and timely warning to plaintiff of the approach of the train. These were all questions of fact to be decided on evidence that was conflicting. As said in Chicago and Iowa R. R. Co. v. Lane, 130 Ill. 116:

“It is only when the conclusion of negligence necessarily results from the statement of fact, that the court can be called upon to say to the jury that a fact establishes negligence as a matter of law, and that if the conclusion of negligence, under the fact stated, may or may not result, or shall depend on other circumstances, the question is one of fact for the jury.”

Again in Wabash Ry. Co. v. Brown, 152 Ill. 484, Mr. Justice Phillips states the rule to be:

“ Where the evidence on material facts is conflicting, or where on undisputed facts fair-minded men of ordinary intelligence may differ as to the inferences to be drawn, or where on even a conceded state of facts a different conclusion would reasonably be reached by different minds, in all such cases negligence is a question of fact. * * * With all the facts considered, if there is a reasonable chance of conclusions differing thereon, then it is a question for a jury.

ISTegligence may become a question of law, where from the facts admitted or conclusively proved there is no reasonable chance of different reasonable minds reaching different conclusions. It may also become a question of law if a single material fact is conlusively shown or uncontradicted, the existence or non-existence of which is conclusive of a right of recovery.” See also C. & E. I. R. R. Co. v. Driscoll, 70 Ill. App. 91

The verdict was a reasonable one under the facts shown by the record, if any recovery is permissible to appellee, but in view of the erroneous instructions referred to, the judgment will have to be reversed. Eeversed and remanded.


author: Mr. Justice Sears

text:
    Merchants’ Life Association v. Harry W. Treat and Ferdinand W. Peck, Jr.
    1. Practice — Opening and Closing of the Case. — In an action upon a policy of insurance, where the defendant company by stipulation admits that the plaintiffs have a prima facie case, the defendant is entitled to the opening and close.
    2. Same — Effect of Admitting a Prima Facie Case.— In an action upon a policy of life insurance, where the parties stipulate that the plaintiffs have a prima facie case, such stipulation admits that they also have an insurable interest in the life of the deceased, but it does not preclude the defendant from overcoming 'Sach prima facie case by showing to the contrary,
    8. Suicide — Declarations of the Deceased at the Time of Making His Application for the Policy. — In an action on a policy of life insurance where the defense of suicide is set up, evidence that at the time the deceased made his application for the policy he asked the agent if his company paid losses on suicides and upon receiving a negative answer said something about canceling his application, is competent, and should be admitted.
    4. Life Insurance — Application and Policy Constitute the Contract. — Where a written application for a policy of life insurance is required and signed and a policy is issued upon it, the application and the policy constitute a written contract between the insured and the company, and where a controversy arises as to what the contract is, such controversy is to be determined by the' application and the policy.'
    5. Limitations — In Policies of Life Insurance. — Insurance companies have the right to insert in their policies provisions limiting the time in which suits shall be brought to recover on such policies, and such provisions are enforceable for the protection of the company.
    Assumpsit, on a policy of life insurance. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed.
    Opinion filed November 7, 1901.
    This suit was brought on an insurance policy for $5,000, issued by the appellant, the Merchants’ Life Association, a Missouri corporation, upon the life of Eobert I. Helliwell, in' favor of appellees, Harry W. Treat and Ferdinand W. Peek, Jr., copartners of said Helliwell.
    By stipulation the appellees were allowed to introduce any evidence under their declaration which they might introduce under any declaration on an insurance policy; and under the general issue appellant was allowed to introduce any evidence competent thereunder or competent under any special plea.
    On the trial appellant admitted the prima facie case of appellees, and on such admissions was given the opening and close.
    The undisputed facts are that on the 14th of August,1895, deceased made application for the policy in suit at the office of Helliwell, Treat & Co., in the Stock Exchange Building in Chicago, to one Stelling, agent of appellant. The policy was delivered in said office by Ellis, an agent of the company, on August 16, 1895. The application showed that Helliwell already had $33,000 life insurance. By the application he covenanted that the policy should be void (save as to share in actual reserve) in the event 6i I commit suicide, whether sane or insane,” and “I also agree that no action of law or suit in equity shall be maintained or recovery had on said policy * * unless such action or suit be commenced within one year from the date of my death.”
    The application was referred to in the policy and expressly made part of the contract of assurance.
    Assured was found dead in the barn in the rear of his house at Oak Park, Illinois, on the evening of December 14, 1895, with a bullet wound in his head. Suit was filed in the Superior Court of Cook County on August 6, 1897, more than one year after the death of assured.
    There was no conflict of testimony as to the following facts:
    Assured came to his death by a pistol bullet from a 32-caliber pistol, the bullet entering on the right side of his head, penetrating a little above the level of the eyes, and in the hair. There were powder marks under the skin around the wound. The shot entered on a line at right angles with the side of the head. The first witness who saw deceased was Edward W. Cross. He was then dead. Afterward Cross found a 32-caliber Smith & Wesson pistol behind some cases some ten feet from the body, the pface having been pointed out to him by the daughter of the deceased. The pistol belonged to deceased. It had been freshly discharged. Helliwell was apparently insolvent, and there were unsatisfied judgments against him in Cook county, one dated September 20, 1892, for $2,935, another dated June 23, 1893, for $832.59.
    The insurance company was a corporation organized under the laws of Missouri to carry on a life insurance business on the assessment plan. Under the laws of that State such companies were, in 1895, forbidden to take risks on lives in which the beneficiary had no insurable interest.
    On the trial defendant offered to show the following facts:
    That in the opinion of the doctor, who qualified as an expert, the wound was suicidally inflicted; that the assured immediately after signing the application on August 14th, and before the policy was delivered, followed the agent, Stelling, out into the hallway of the Chicago Stock Exchange-Building and there asked the agent if his company paid losses on suicides, and on learning it did not, made some remark about canceling the application; that no hue and cry was raised after the death of Helliwell to apprehend any supposed murderer, and that no one has been arrested charged with that crime; that Helliwell’s daughter told witness Cross how the pistol came to be concealed between the packing cases.
    The court rejected all such evidence; to which defendants saved exceptions.
    The court, at the close of defendant’s evidence, gave a peremptory instruction to the jury to find for appellees, and a verdict for $6,174.50 was returned. Motion for new trial was entered and overruled and judgment entered on the verdict, from which judgment this appeal is prosecuted.
    Frank P. Blaib, attorney for appellant.
    John S. Cooper and Clark Yarnum, attorneys for appellees.
   Mr. Justice Sears

delivered the opinion of the court.

It is contended by the learned counsel for appellant that the judgment should be reversed upon the following grounds: First, because it does not appear that appellees had any insurable interest in the life of Helliwell; second, because the court erred in rulings upon the admission of evidence; third, because under the terms of the contract of insurance, no suit could be maintained upon the policy unless such suit was begun within one year from the time" of the death of the assured; and fourth, because there was evidence tending to establish the theory of defense, viz., that Helliwell had committed suicide; that such evidence should have been submitted to the jury, and that it was error to exclude it and to peremptorily direct a verdict for the appellees.

We are of opinion that the first contention of appellant, viz., that the judgment should be reversed because it is not affirmatively shown that appellees had an insurable interest in the life of Helliwell, can not be sustained. The stipulation of the litigants upon the trial admitted that appellees had established & prima, facie case. This admitted as well that they had an insurable interest in the life of Helliwell, so far zs, prima facie showing was concerned, as any other fact material and necessary to a recovery. It did not, of course, preclude appellant from overcoming that prima facie showing, but it left the burden upon appellant to do it, and it was not done.

It is urged that the trial court erred in excluding testimony of Cross as to what the daughter of Helliwell had told him regarding the finding of the revolver. The daughter of Helliwell told Cross where to find the revolver, viz., behind some boxes or cases. She was not produced as a witness. Cross wTas permitted to testify that she told him where to find the revolver, but was not permitted to testify to the remainder of her conversation, i. e., to give all of her statement as to how the revolver came to be there. The evidence was of great importance. If she had found the revolver, owned by the deceased, lying at his hand when she first discovered the body, it would support most strongly the other facts tending to establish a suicide; while if the revolver was first discovered by her at a distance from the body, and so located as to preclude the possibility of the deceased having placed it there after he was mortally wounded, it would support the theory of the appellees that he came to his death in a manner other than by suicide. In general the evidence would be clearly incompetent, for it would be hearsay only. But it is said that after a part of the conversation between Cross and the daughter of deceased relative to the location of the revolver had been admitted, the remainder of that conversation became competent. If the part of her statement to Cross which was admitted, had been presented in evidence by appellees, the contention would at least demand consideration; but inasmuch as it was introduced by the appellant, such introduction and its admission afford no ground for admitting more of hearsay evidence when objected to, as it was here objected to by appellees. We are of opinion that the exclusion of this evidence was proper. The court was clearly right in excluding evidence proffered to show that there was no attempt made to apprehend any supposed murderer of the deceased. Such an inquiry would open investigation upon lines too remote to be material and competent upon the issues of fact presented. There was no error in excluding the proffered testimony of Dr. .Matthews, whose opinion was asked as to whether the wound was accidentally inflicted. It was competent for the expert to give his opinion, as he did, as to the proximity of the pistol to the head of the deceased, judging from the powder marks, and the angle at which the pistol was held, judging from the course of the bullet, but from these facts and opinions it was for the jury, not for the expert, to draw the conclusion as to accident or suicide.

A much more serious question is presented in the exclusion of part of the deposition of Stelling, the agent of the appellant, who solicited and obtained the insurance in question. It was proposed to show by him that Helliwell, immediately after signing the application for the policy sued upon, and before the policy was issued, followed Stelling out into the hallway of the building where the application was signed, and then and there asked Stelling if the company paid losses on suicides, and upon receiving a negative answer, said something about canceling his application.

It is contended that this evidence should have been admitted as material and competent upon the issue of the alleged suicide of the deceased. The question is one of first impression in the courts of review of Illinois. There are decisions in cases where the admissions of the assured are sought to be used in suits brought by beneficiaries, but they are for the most part admissions as to condition of health, and so related to the application for insurance and the medical examination as to be held part of the res gestee. Schwartz v. Berkshire Life Ins. Co., 91 Ill. App. 494.

Upon this precise question of the admissibility of statements of the assured, made before the issuing of the policy, and tending to establish that the assured took the insurance in anticipation of committing suicide, we are able to find but one authority, viz., Smith v. The National Benefit Society, 123 N. Y. 85. In that case the New York court held that it was not error to admit evidence of statements of the assured made about the time of the procuring of the insurance, to the effect that if he failed to raise funds he would commit suicide. It was also permitted in that case to prove that the assured was insolvent when the policy was taken, and that he had made .inquiries as to the easiest mode of causing death. This evidence was held to be competent upon the ground that the defense of the company amounted to a charge of a fraudulent scheme by which the assured undertook to obtain insurance upon his life and then kill himself. It was held that these various declarations made before the taking of the policy in question, when no one save the assured was in interest in the matter, tended to establish the fraudulent undertaking and were properly a part of the res gestee. The court said:

“ It is thus not difficult to decide that the proof of applications by Tyler to thirty-six different insurance companies, by which he secured $282,000 of insurance upon his life, and his letters and telegrams to relatives and friends written and sent as steps or agencies in the consummation of his purpose, and indicating, a sane and deliberate intent to consummate the fraud, which for more than a year had been in preparation, by a final act of suicide, were all admissible. But some of the evidence was more remote and approached so near to the outside boundaries of the res gestes as to require a specific and particular examination. The defendant was allowed to prove by Henry A. Bowen that, in the summer of 1885, he went, at the request of Tyler, to the latter’s friends to raise money for him; that he failed to accomplish the purpose; that, on his return, he had a conversation with Tyler in which he informed him of that failure, in reply to which Tyler said he was a man who must have money, and if he couldn’t raise it he would commit suicide. This was a few months before the process of insuring began, and tended to show two things, both of which were pertinent to the issue. It indicated an existing motive for the fraud in the want of money and the failure to obtain it, and the origin and occasion of the alleged suicidal intent. The declaration accompanied and characterized an act which was itself admissible in evidence, for that act indicated the then desperate character of Tyler’s financial situation, and the declaration explained the operation and effect of the fact upon his mind, its force and strength as a motive to the fraud, and the presence of a thought or contemplation of suicide in a contingency which did in fact occur. The evidence serves to indicate the origin and motive of the alleged suicidal intent, which grew to be the effective agency of the fraud. In the same connection the witness was permitted to detail inquiries which Tyler made of Lutkin as to the easiest mode of producing death. These inquiries were rather acts than declarations, and show the assured in thé process of acquiring information to effect easily and swiftly the destruction of his own life. Similar testimony of an intent to commit suicide rather than endure poverty or hard labor, was given by the witness Trested, but in connection with inquiries about insurance and with an endeavor to get into a benefit society connected with the hat trade. The witness added Tyler’s declaration that he intended to put a large insurance upon his life and make the boys happy. These acts and declarations all occurred before the plaintiff took his policy as collateral, and when they affected no one but Tyler himself. They tended to show the origin and progress of the fraudulent intent, the manner of its growth and the motive from which it sprung. They indicate a sane and deliberate purpose, moving steadily to its result, and constitute a part of the history of the fraud. They were contemporaneous witli the fraud in its formative stages; they accompanied Tyler’s •efforts to raise money, which failed, and to procure an insurance upon his life which he knew he could not continuously maintain. They show the motive of the fraud and mark its progress, and harmonize so completely with all which afterward occurred as to constitute, with that, elements of the single transaction, the fraudulent conduct which raised the issue presented by the defense. And so I think the proof came fairly within the rule relating to res gestee, and did not transcend its limits.”

We find a decision holding that statements by the assured, indicating that he contemplated suicide, made after the issuing of the policy, are not competent in a suit by the beneficiaries. Jenkin v. Pacific M. L. Ins. Co., 63 Pac. Rep. 180.

This decision cites and relies upon many cases in which it has been held that statements by the assured as to condition of health made after the issuing of the policy, are not competent in a suit by the beneficiary.

But no one of these cases goes to the point which is made controlling in the Hew York case, viz., that these admissions, made before the policy is issued, when the assured alone is in interest as a contracting party with the insurance company, and tending to show a fraudulent scheme upon the part of the assured in the taking out of the policy, are competent because they are so closely interwoven with and a part of the fraudulent transaction as to be res gestm. The- reasoning of the Hew York decision is logical and it appeals to the understanding. In the absence of any authority of this State precisely in point, and upon this authority, as well as upon first impression, we hold that the evidence was competent and should have been admitted.

It is urged that the evidence upon the issue of suicide was sufficient in support of appellant’s contention to warrant the submission of it to the jury. We are of opinion that this contention is sound. The assured was found dead in a stall in a barn in the rear of his house. His death was caused by a bullet wound in the head. The evidence tended strongly to show that the bullet which caused his death had been discharged from a revolver belonging to the deceased, and that the revolver had been held close to his head when fired. This revolver was found by one of the witnesses some ten feet distant from the dead body and behind or between some boxes. A daughter of the deceased pointed out the place where the revolver was found. She was not called as a witness. All these facts tended, in some degree, to establish that the deceased had killed himself, and a verdict of the jury to that effect could not be said to be wanting sufficient support in the evidence. Therefore, we are of opinion that if the plaintiffs below, appellees here, were entitled to have their case submitted to the jury at all, the defendant, appellant here, was also entitled to a submission to the jury of this evidence supporting its theory of suicide. But the further question is presented for our determination, viz., were appellees, under all the evidence, entitled to a recovery at all, and should the learned trial court not have peremptorily directed a verdict for the defendant below instead of directing a verdict for the plaintiffs there. It is urged, on behalf of the appellant, that inasmuch as the application for insurance, signed by the assured, provided that no action at law or suit in equity should be maintained or recovery, had on the policy unless such action or suit be commenced within one year from the date of the death of the assured, and inasmuch as it is established beyond controversy that this suit was begun after the lapse of one year from the death of Hr. Helliwell, therefore by the very terms of the policy the plaintiffs could not recover. We are of opinion that this contention must be sustained. By the terms of the contract of insurance, the application is made a part of such contract. Its provisions are, therefore, to be given their due weight in a construction of the contract. Those provisions are a part of the contract and binding upon the beneficiaries. 1 Joyce on Insurance, 190-196; The Commercial Hut. Accident Co. v. Bates, 176 Ill. 194.

In the case cited our Supreme Court said:

“ Where a written application is required to be signed by the assured, and is so signed, and a policy of insurance is issued upon the application, as was the case here, the application and the policy constitute a written contract by and between the assured and the insurance company, and where a controversy arises in regard to what the contract is between the parties, that controversy must be determined by the application or the policy.”

Insurance companies have the right to insert such provisions limiting the time within which a suit may be brought to recover upon a policy, and such provisions are enforceable for the protection of the company when made a part of the contract. The P. M. & F. Ins. Co. v. Whitehall, 25 Ill. 466; Andes Ins. Co. v. Fish, 71 Ill. 620; Illinois L. S. Ins. Co. v. Baker, 153 Ill. 240.

It is insisted by the learned counsel for the appellees, that this provision limiting the time within which a suit might be brought, is merely a promise or undertaking, on the part of the assured, and is not binding upon the beneficiaries. We are of opinion, however, that this provision is a part of the contract of insurance, and that it in effect imposes a valid limitation upon that contract.

Counsel also contend that there are two papers called applications,” which were signed by the assured, and that the other and not this application, containing the provision as to limitation of time for bringing suit, should be construed as the application which is made by the terms of the policy a part of the contract of insurance. To this contention we can not assent. The policy reads :

“ In consideration of the first annual premium of one hundred and four dollars and — cents, the written and printed application for this policy, which is hereby made a part of this contract, and the payment of premium,” etc., the appellant company promises to pay, etc. .

There are two written or partly written and partly printed documents, each marked “Application for Insurance.” The first consists mainly of questions and answers by the assured as to condition of health, family history, etc., and is accompanied by a certificate by the medical examiner of the appellant company. The second relates to age, occupation, other insurance carried by the assured, etc., and it is in this paper, marked “Application for Insurance,” that the provision is contained to the effect that no suit shall be maintained on the policy unless begun within one year from the death of the assured. This application begins" as follows:

“ Desiring a policy of insurance in the Merchants’ Life Association of the United States, I make the following answers and agreement the basis of the policy contract with me.”

Each of these papers, called “application,” was signed by Helliwell. It is difficult to see how it could possibly be held that this document entitled “Application for Insurance,” and containing the specific agreement that it is the basis of the policy contract, and referred to in the policy as a part of the consideration for the issuing of it, can be held to be other than a valid part of the contract of insurance. By its terms this suit, begun after the lapse of a year from the date of Helliwell’s death, is barred. The insurance company had the legal right to thus limit its liability. Under the clear and unequivocal limitation, this suit can not be maintained. Therefore,.the appellees had no right of recovery, and the learned trial court should have directed a verdict for appellant.

The judgment is reversed.