source: Caselaw Access Project

author: Mr. Justice Bailey Scholfield and Magbuoeb, JJ.:

license: Public Domain

text:
    Isaac L. Morrison et al. v. Flora O. Smith.

      Filed at Springfield

      November 1, 1889.

    1. Allegations and decebe—must correspond. A decree can not be sustained unless it is based upon the allegations of the bill. If a party makes one case by his bill and an essentially different one by his evidence, he can not recover, however meritorious the case proved may be.
    2. Same—whether there is a variance—where one of several grounds of relief is satisfied. A bill in chancery to set aside an assignment of a judgment alleged two grounds of relief: Hirst, that the transaction was a loan, and the assignment ivas made as a security, only; and second, that the assignment was fraudulent, for the reason that the assignees were the attorneys of the assignors, and the transfer was made at an inadequate price. The court found there was no loan, but a sale and purchase, and set aside the sale on the ground of the inadequacy of price : Held, that there was no variance between the bill and the decree, as the bill presented a two-fold aspect, seeking relief on two different grounds, one of which justified the decree.
    3. Decebe—sufficiency-—in finding the sum to be paid. On a bill to set aside the sale and assignment of a judgment on. the ground of the inadequacy of the price paid therefor, the court, in its decree, found that the complainant was justly chargeable with $275 due the defendant, and directed the payment of that sum, with interest thereon at the rate of six per cent from a day named, being the date of the assignment : Held, that while the decree was technically erroneous, in not finding the sum to be paid including the interest, yet as the dates were given, so that the amount due rested only in computation, the error was an immaterial one, and the case was within the rule which treats that as certain which is capable of being rendered certain.
    4. Interest—at what rate—as determined in a decree. A bill sought to redeem from a sale of a judgment, on the ground the assignment was in the nature of a security for the loan of money to the assignor at eight per cent, and also on the ground of fraud and inadequacy of price; The court found that the transaction was an absolute sale, but that it was fraudulent, on account of the inadequacy of the consideration, and decreed that the sale be set aside upon the complainant paying the defendants the sum found due them, with six per cent interest. The complainant, in his bill, offered to pay the amount of the alleged loan, with eight per cent interest. The defendants claimed that there was error in not requiring complainant to pay eight per cent interest: Held, no error, as, on the finding of the court that there was no loan, the consequences flowing from the theory of a loan were eliminated from the case, and as the court found the transaction to be a sale, no interest was recoverable except at the rate of six per cent.
    5. Attorney and client—dealings between them—burden of proof as to fairness. The relation of attorney and client being one of special trust and confidence, the law requires that all dealings between them shall be characterized by the utmost fairness and good faith, and it scrutinizes all transactions had between them. So strict is the rule, that dealings between them are held, as against the attorney, to be prima facie fraudulent, and the burden is not upon the client to establish fraud and imposition, but it rests upon the attorney to show fairness, adequacy and equity.
    6. An attorney who bargains in a matter of advantage to himself with his client, is bound to show that the transaction is fair and equitable ; that he fully and faithfully discharged his duties to his client, without misrepresentation or concealment of any fact material to the client; that the client was fully informed of his rights and interests in the subject matter of the transaction, and the nature and effect of the contract, sale or gift, and was so placed as to deal with the attorney at arm’s length.
    7. It has been held in some cases that all such transactions are voidable, at the election of the client, but the weight of authority does not go that far. There is no necessary incapacity for dealing between client and attorney, and while transactions between them will be closely scrutinized, yet those which are obviously fair and just will be upheld.
    8. Adequacy oe price—in case of a sale—cmd herein, as to the mode of 'determining values. In determining whether property sold has brought an adequate price, the ordinary inquiry is as to its market value. H there is no established or ascertainable market value, it is proper to inquire as to what purchasers would be likely to give for the property if given a fair opportunity for competition.
    9. Same—adequacy of price on the sale and assignment of a judgment. The holder of a judgment for $716 sold the same for $275, to her attorneys. The debtor was a non-resident, and insolvent, and the judgment was a first lien upon his undivided one-fifth interest in a tract of one hundred and sixty acres of land, subject to a life- estate of his mother, aged sixty-one years. The value of the undivided one-fifth of the land, without the incumbrance of the life estate, was from $1600 to $1760. The court, in determining the value of the judgment, ascertained the value of the remainder, held by the debtor, by deducting from the value of the fee the estimated value of the life estate, such estimate being made upon the basis of the probable duration of the life of the tenant, as shown by the tables recognized by the courts as authentic. This made the value of the debtor’s interest something more than the face of the judgment: Held, that such rule might be proper when the life tenant is willing to relinquish the estate, and take in lieu thereof a just and equitable proportion of the entire value of the land; but in this ease, where the life tenant was not bound to part with her estate, the course adopted would establish a criterion of value both unjust and delusive.
    • 10. Where the value of a judgment depends upon the value of the debtor’s interest in land which is subject to a life estate, and there is no means of extinguishing the prior estate without the consent of the life tenant, by paying its estimated value computed according to the tables, the uncertainty of the length of the life tenant’s estate, and her right to the exclusive possession and enjoyment of the land, would render the value of the judgment very uncertain, and deter prudent persons from purchasing, except on the probable continuance of the life estate at its extreme limit.
    Appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Morrison & Whitlock, pro se:

    There is a variance between the allegations in the bill, and the proof. The bill charges that the transaction between appellants and appellee was a loan of money. The evidence clearly shows that it was a sale. It is a principle of chancery practice that a party “must recover, if at all, according to the case he has made in his bill.” He can not state one case in his bill and make out a different case in proof. Ohling v. Luitjens, 32 Ill. 23; McKay v. Bissett, 5 Gilm. 505; Morgan v. Smith, 11 Ill. 194; White v. Morrison, id. 361; Shankland v. Shankland, 115 id. 526; Scott v. Harris, 113 id. 447.
    The court should have found the amount due from appellee to appellants, and decreed the sum to be paid. The court found there was due from appellee to appellants $275, with interest at six per cent per annum from the 6th day of April, 1885. But who, under this decree, is to compute the interest, and how is it to be known how much money the appellee is to pay and appellants to receive ? Wilhite v. Pearce, 47 Ill. 413.

      The court should have required the payment of interest at eight per cent, according to the tender in the cross-bill.
    An attorney, in this State, is not prohibited from dealing with his client, when the transaction is fair and honest, and. in no manner tainted with fraud, undue influence or corruption. Hess v. Voss, 52 Ill. 481; Laclede Bank v. Keeler, 109 id. 385; Nesbit v. Lackman, 34 N. Y. 167.
    The proof shows that the purchase of the judgment was fair,, and free from any fraud or undue influence, and fails to show that the price paid was not the fair value of the judgment.
    Mr. John W. Springer, for the appellee:
    The decree is not variant from the relief sought in the cross-bill. It fixes the amount to be paid by appellee.
    The court having found that the transaction which the ap-pellee thought was a security was in fact a sale, and no interest being expressed, six per cent was all she was responsible for„
    The onus is on the attorney to show fairness, adequacy and equality. Jennings v. Connell, 17 Ill. 150; Yeoman v. James,. 27 Kan. 198; 1 Story’s Eq. Jur. note 1, p. 346.
    When two parties stand toward each other in any relation: which necessarily induces one to put confidence in the other, and gives the latter the influence which naturally grows out of such confidence, and a sale is made by the former to the latter,, equity raises a presumption against the validity of the transaction. Howell v. Ransom, 11 Paige, 538; Condit v. Blackwell,. 22 N. J. Eq. 481; Porter v. Woodruff, 76 id. 174; Farmer v„ Farmer, 39 id. 211.
    When the attorney or solicitor of a party becomes the purchaser, he occupies the position of the party himself, and although he may design the purchase for himself, the client may claim it to his own use. Moore v. Brocken, 27 Ill. 27; Zeigler v. Hughes, 55 id. 202.
    As to the value of the life estate, we establish that the one hundred and sixty acres of land was worth $55 per acre im 1885, and that Mrs. Smith was sixty-one years of age at that time. It is therefore a mere computation, which the law itself makes, as to the value of the life estate. Puterbaugh’s Ch. 487; Sutherland v. Sutherland, 69 Ill. 481.
    The tables showing the probabilities of life, by which the value of dower rights can be computed, are recognized by the courts as the proper means of proving such value. McHenry v. Yokum, 27 Ill. 161.
   Mr. Justice Bailey

delivered the opinion of the Court:

This was a bill in chancery, brought by Isaac L. Morrison, Herbert G-. Whitlock and Flora 0. Smith, against Samuel Smith and James F. Bearick, for the partition of the northeast quarter of section 28, township 15, north, of range 9, west, in Morgan county. After the original bill was filed, Flora 0. Smith had the bill dismissed as to her, and on her own motion she was made a party defendant, and filed her answer and cross-bill. The only controversy in the case arises upon that part of the decree which is based upon the cross-bill.

It appears from the pleadings and evidence that on the 3d day of February, 1868, Bobert B. Smith died intestate, leaving him surviving Ellen Smith, his widow, and Samuel Smith, Sallie Smith, afterward intermarried with James F. Bearick, Meredith L. Smith, Elmer Smith and Flora 0. Smith, his children and heirs at law; that said Bobert B. Smith, at the time of his death, was seized in fee of the land above described, and various other lands; that said quarter section of land was assigned to said widow as her dower, the residue of said lands having been duly partitioned among his children. It thus appears that the five children of Bobert B. Smith were tenants in common of said quarter section of land, subject to the life estate of said widow. Sallie Bearick died, leaving a will by which she devised her interest in said land to her husband, James F. Bearick. On the 10th day of August, 1887, the life estate of Ellen Smith was terminated by her death.

The bill, which was filed after the death of said widow, alleges that, at the time it was filed, James F. Bearick was the owner of an undivided one-fifth of said tract of land by devise from his wife; that Samuel Smith was the owner of one-fifth, Flora 0. Smith of one-fifth, and that the shares of Meredith L. Smith and Elmer Smith had each been sold under judicial process and their title thereby divested, and that their shares had passed, by means of said sales, to Isaac L. Morrison and Herbert Gr. Whitlock, as copartners under the firm name of Morrison & Whitlock, and that they had thereby become and still were the owners of the undivided two-fifths of said tract of land in fee. This appeal involves only the one-fifth interest formerly belonging to Elmer Smith.

It appears that some time in 1884, Flora 0. Smith, having a claim against her brother Elmer Smith, brought a suit in attachment against him, and caused the attachment writ to be levied upon his interest in said tract of land. Morrison & Whitlock, who were attorneys and counselors at law, acted as her attorneys in commencing and prosecuting said suit, and obtained a judgment in her favor in November, 1884, for $716 and costs. In April, 1885, and before the sale of the property attached on special execution, she executed to her said attorneys an assignment of said judgment, and received from them the sum of $200 in money. Morrison & Whitlock thereupon caused the interest of Elmer Smith in said land to be sold on special execution, and they themselves became the purchasers, bidding therefor the full amount of the judgment. Said interest in said land not being redeemed from said sale, was subsequently conveyed by the sheriff to them. The evidence shows that at the time of said sale said land was worth from $50 to $55 per acre, which would make the value of an one-fifth interest, if unincumbered by the life estate of the widow, from $1600 to $1760.

In her cross-bill, Flora 0. Smith insists that the transaction which resulted in the assignment of said judgment to her attorneys, was one which should charge them as trustees for her. Her allegations on this point are, in substance, that she was desirous of obtaining a loan of money, and applied to them for the sum of $200 as such loan, and that they thereupon loaned her that sum, and that she, at their request, assigned to them said judgment, such assignment being by way of giving security for said loan, and for no other purpose; that she was of tender age and wholly without experience in business matters, and without knowledge of legal affairs, or the legal effect of the transaction; that they sustained to her the relation of attorneys and legal advisers, and that she had implicit confidence in their ability, probity and fairness, and relied upon them to look after her legal interests. Said cross-bill also contains the following allegation :

“Your oratrix states that said Morrison & Whitlock’s title to said interest is fraudulent, because they hold it simply to secure the money and interest thereon advanced by them to your oratrix, and also because, if it were the intention of her said attorneys to regard such transaction as a sale and purchase, the price they paid for said interest was grossly inadequate.”

Morrison & Whitlock, in their answer to the cross-bill, admit their relation to Flora 0. Smith as her attorneys, and that as such attorneys they commenced and prosecuted said attachment suit and recovered judgment therein, and there is no pretense that such relation had terminated at the time the judgment was assigned to them. They allege that, after the recovery of said judgment, Flora 0. Smith desired to sell the same, as she was about to go to Colorado; that they advised her not to sell it, but that she declined to take their advice, and expressed a determination to make such sale; that they made various efforts on her behalf to find a purchaser, cr some one who would advance money to her on the judgment, but without success; that they thereupon bought the judgment from her and paid her therefor the sum of $200, and released her from all liability for fees and costs in the case, and that afterwards, on sale by the sheriff of the land attached, they bought it in their own names, as they had a right to do; that they bid the full amount of the judgment, said Elmer Smith being a non-resident and insolvent; that the value of his interest in said.land depended upon the length of the life of his mother; that if she had lived, as she might have done, twenty or twenty-five years, it would not have been worth the sum bid, but as her death occurred so soon, it was worth more than the price paid; that by virtue of said sale, they became the purchasers and owners in good faith of an undivided one-fiftli of said tract of land, and that the first intimation they had of a claim by Flora 0. Smith that the transaction was a loan was derived from the averments of her cross-bill.

The evidence as to whether the real transaction between Morrison & Whitlock and Flora 0. Smith was an absolute sale of said judgment or a mere assignment of it as collateral security for a loan, is conflicting. The testimony of Flora 0. Smith tends to show that the transaction was a loan of money and that the judgment was merely assigned as security for its repayment, while the testimony of Morrison & Whitlock tends to support the averments of their answer, that it was an absolute sale. Upon this issue of fact, the court found in favor of Morrison & Whitlock, the finding of the court on this question being: “That Morrison & Whitlock, before the assignment was fully made, informed Flora 0. Smith of all her interests, and advised her not to sell and assign the judgment; that after being fully so informed and advised, she did sell the same to Morrison & Whitlock for the sum of $200, they to pay the costs of suit and of sale, and to present no bill for services in the case.”

The court further found the existence between Morrison & Whitlock and Flora 0. Smith of the relation of attorneys and client in respect to said judgment; that at the time she assigned said judgment to them, she was but twenty years of age and inexperienced in business; that said judgment was worth its face, and that the price for which it was sold was greatly below its value and to her disadvantage. The court thereupon decreed that said assignment be set aside, and that Morrison & Whitlock be decreed to hold said undivided one-fifth of said land as trustees for Flora 0. Smith, subject to a charge of $200, the sum paid therefor, and $25 for the costs paid by them on the sale of the land, and the further sum of $50 which the court found to be justly chargeable for their fees and services, making $275 in all, with interest thereon at the rate of six per cent per annum from April 6, 1885, the date of the assignment, and it was further ordered that she pay to them that sum and interest within ninety days from the entry of the decree, and that upon such payment, they execute and deliver to her a deed conveying to her said undivided one-fifth interest in said land. A decree for the partition of said land in accordance with the interests of the several owners thereof established as above stated was thereupon entered, and Morrison & Whitlock bring the record to this court by appeal, and assign-for error so much of the decree as sets aside the assignment of the judgment and charges them as trustees for the appellee.

The first error assigned, is, that the decree is not based upon the allegations of the cross-bill. The rule undoubtedly is, that a decree can not be sustained unless it is based upon the allegations of the bill. If a party makes one case by his bill and an essentially different one by his evidence, he cannot recover, however meritorious the ease proved may be. But while this familiar rule must of course be admitted, we think the allegations of the cross-bill in this case are sufficient. The variance pointed out is, that the cross-bill makes out a case of a loan of money and the assignment of the judgment as security, while the case established by the evidence and found by the decree is that of a sale of the judgment by the appellee to her attorneys, but at an inadequate price. It is true the appellee alleges in her cross-bill that the transaction between her and her attorneys was a loan of money and an assignment of the judgment as collateral, but she also alleges in a subsequent part of her bill that Morrison & Whitlock’s title to the one-fifth interest in said lands is fraudulent, because the price .paid by them was inadequate. In this allegation is set forth, very briefly it is true, but in substance and we think sufficiently, the ground upon which the court granted relief. The bill may be treated in this respect as having a double aspect. It alleges that the transaction was a loan, and it has to that extent the character of a bill to redeem, but it also proceeds upon the ground of fraud, and alleges that Morrison & Whit-lock’s title is fraudulent because, during the subsistence of the fiduciary relation between them and their client, they obtained from her a sale of the judgment, if it was in fact a sale, at an inadequate price.

The next point made is, that the decree is erroneous in failing to compute the interest on the amount to be paid by the appellee, and decreeing the payment of the sum thus arrived at. Doubtless it would have been better and more in conformity with the usual practice, to make the computation of interest and decree the payment of the sum due at the date of the decree, together with the interest thereon from that date, and to that extent the decree must be held to be technically erroneous, but the error does not seem to be material, or one which, of itself, ought to necessitate a reversal of the decree. A mere computation of six per cent interest upon a given sum for a given period of" time, involves a mathematical calculation which can lead to but one result. The failure to compute the interest, all the elements or factors which enter into the computation being fixed and ascertained, introduces into the decree no uncertainty as to the amount to be paid. When the appellee undertakes to comply with the decree by paying or tendering the amount she is required to pay the appellants, there will be no difficulty in determining whether the amount paid or tendered is the proper one. That can readily be ascertained by either party by a simple computation. The case would seem to be within the legal principle which treats that as certain which is capable of being rendered certain.

Most if not all the. cases in this State where decrees have been held erroneous because of the failure of the court to compute the interest and order the payment of the sum thus ascertained, have involved elements which do not exist here. Thus, in Aldrich v. Sharp, 3 Scam. 261, a bill was filed to foreclose a mortgage given to secure $450 and interest thereon at the rate of twelve per cent interest per annum. The decree, which was by default, required the defendant to pay said principal sum, with twelve per cent interest, from the date of the mortgage to the date of payment, deducting therefrom the sum of $52.84. The decree failed to determine whether the credit of $52.84 was to be made upon the principal or the interest, or as to the date at which it was to be applied. On account of the uncertainty as to the time and mode in which the credit was to be applied and the consequent uncertainty as to the result of a computation of the amount due, and also of the fact that the complainant was permitted by the decree to recover twelve per cent interest as well after as before its entry, the decree was held to be erroneous and was reversed. In Boston v. Nichols, 47 Ill. 353, the error consisted in leaving it to the master, at a period subsequent to the decree, and upon a further investigation, to adjudge and determine the amount of a note which had not matured at the date of the decree, no investigation of that question being made by the court itself. Wilhite v. Pearce, 47 Ill. 413, involves substantially the same error, the court having there referred it to the master to ascertain the amount of a certain lien, without attempting itself to adjudicate upon that question. In Smith v. Trimble, 27 Ill. 152, the decree was reversed on other grounds, but it was also held that the court should have ascertained the precise amount required to be paid, and not left it to computation. In that ease no computation was made, and it is difficult to gather from the reporter’s statement, whether the decree furnished the proper data from which a computation could be made. No one of the cases above cited is like the present, and we are unable to see how, upon principle, the failure to compute the interest, where, as in this case, the computation is simple and wholly free from complications, and all the elements which enter into it are fixed, can work any prejudice to the rights of any of the parties.

But it is claimed that the decree should have allowed the appellants eight instead of six per cent interest. This claim is based upon those allegations of the cross-bill in which the appellee alleges that the transaction between her and the appellants was a loan of $200 at eight per cent interest, and in which she makes a tender of the amount of such loan and interest at that rate. Doubtless if the appellee had succeeded in sustaining her allegation in that behalf, she would have been held liable to repay the loan with the stipulated interest. But her theory as to the transaction being a loan was contested by the appellants, and the court found that it was not a loan but a sale. If we assume that such finding is correct—an assumption of which the appellants certainly can not complain—the entire theory that the contract was a loan must be disregarded, and all the consequences flowing from such theory are eliminated from the case. The agreement to pay eight per cent interest falls with the supposed contract of which it was a part. The case must be decided upon the basis of the finding of the court that the appellee sold her judgment to the appellants, and the transaction being a sale, no interest is recoverable except that which courts of equity, proceeding upon equitable principles, will impose as a condition to the granting of equitable relief.

We now come to the most material question in the case, viz., whether the circumstances under which the appellee’s judgment was assigned to the appellants were such as will justify a court of equity in setting the assignment aside, and charging the appellants as trustees for the appellee in respect .to the judgment and the lands seized and sold thereunder.

The relation of attorney and client which existed between the appellants and the appellee has always been regarded as one of special trust and confidence. The law therefore very properly requires that all dealings between an attorney and his client shall be characterized by the utmost fairness and good faith, and it scrutinizes with great closeness all transactions had between them. Meechem on Agency, secs. 877-879. So strict is the rule on this subject, that dealings between an attorney and his client are held, as against the attorney, to be prima facie fraudulent, that is to say, the burden is not upon the client to establish fraud and imposition, but the burden rests upon the attorney to show fairness, adequacy and equity. Jennings v. McConnell, 17 Ill. 148. As said by Mr. Weeks: “The attorney who bargains in a matter of advantage to himself with his client, is bound to show that the transaction is fair and equitable; that he fully and faithfully discharged his duties to his client, without misrepresentation or concealment of any fact material to the client; that the client was fully informed of his rights and interests in the subject matter of the transaction, and the nature and effect of the contract, sale, or gift, and was so placed as to be able to deal with his attorney at arm’s length.” Weeks on Attorneys and Counselors at Law, sec. 268.

The rules above referred to apply with great strictness to cases of purchases by an attorney of his client’s ■ property. It has been held in some cases that all such transactions are voidable at the election of the client, but the better rule, and the one established by the preponderance of the authorities does not go so far. There is no necessary incapacity for dealing between client and attorney, and though transactions between them will be closely scrutinized, yet those which are obviously fair and just will be upheld. In Laclede Bank v. Keeler, 109 Ill. 385, after reiterating the general rule that an attorney will not be allowed to bring his own personal interest into conflict with that which his duty requires him to do on behalf of his client, we said: “We do not, however, understand it to be the law that an attorney is prohibited from purchasing property from his client, where the transaction is fair and honest, and in no manner tainted with fraud, undue influence or corruption. Dealings between attorney and client will be scrutinized closely, in order to guard against wrong being committed, owing to the confidential relations existing between them, and the supposed personal influence of an attorney over his client; but there is no rule of law' which absolutely prohibits a sale merely on account of the existence of the relation of attorney and client.”

In the present case, as has already been said, the court below found that the appellants, before purchasing the judgment of the appellee, informed her of all her rights and interests and advised her not to sell it. This finding seems to be fully sustained by the evidence. Whitlock, one of the appellants, testifies, that sometime after the judgment was recovered, the appellee came to him and told him that she desired to dispose of it and get some money, as she was proposing to go west ; that she asked him if he knew of any person to whom she could apply for money; that he advised her not to dispose of the judgment, and told her she had better keep it, but she insisted that she must have money and would sell it; that he then advised her to see Mr. Drury who lived on an adjoining farm and see if he would buy it, and also advised her to see a Mr. Luken; that she came back and reported that Mr. Drury was not inclined to purchase, but would come up and see the witness; that he came but would offer but $ 100 which the 'witness advised appellee not to accept; that she again came to witness’ office and said that she had to sell the judgment and would sell it for whatever she could get; that witness told her that while he thought it was not for her interest to sell the judgment, he and Mr. Morrison would give her $200 for it, and also include court costs and attorneys’ fees; that she accepted said offer, and that appellants subsequently paid her the $200 and received from her an assignment of the judgment.

Morrison, the other appellant, testified that he was called into the office where the appellee and Whitlock were talking, and was told by Whitlock that appellee wanted to sell her judgment; that he sat down and had a talk with her about the matter; that she said she was going to Colorado and wanted to sell the judgment to raise money; that he advised her not to do it, and told her he thought it would be worth a great deal more to her if she would keep it; that he talked with her about the management of the farm with her mother, and told her he thought they ought to live on the farm and take care of it ; that from all he had heard he did not believe Elmer would redeem it; that she said she would not live on the farm and did not wish to live in Jacksonville, but had made up her mind to go to Colorado, and wanted some money; that the question came up about the amount, and the witness talked with her about the age of her mother, and told her that she could not afford to sell the judgment for what he, the witness, was willing to give for it; that he would not have anything to do with it except upon the basis of the calculation that her mother might live a long life; that her mother had a life estate and the control of the land, and might live twenty-five years; that if she died soon, of course it would be a very great sacrifice, but if she lived a long time—and she was a very healthy woman—it was not a purchase to be desired; that they talked the matter over, the witness explaining to her that a sale under execution would result, as he thought, in obtaining the land, as Elmer would not redeem it, and she replied several times that she did not want the land but wanted the money; that witness finally told her that under the circumstances, he would be willing to pay her $200 and pay the costs, and charge her nothing for services in obtaining the judgment; that she said she wanted to start in a day or two, and signified her willingness to take the sum offered, and that witness thereupon drew up the assignment and after she had signed it, he went and had it entered on the judgment docket, and then went with appellee to the bank and drew $200 on his firm’s check and paid it over to her.

The foregoing testimony is substantially uncontradicted, except so far as it is met by the appellee’s testimony that the transaction was a loan and not a sale of the judgment. It would seem to follow necessarily, that the appellants’ version of what was said and done at the time the judgment was assigned must be accepted as the true one, especially in view of the fact that the chancellor who saw and heard the witnesses, has so found.

We are of the opinion that the evidence may be fairly held to exonerate the appellants from all charges of unfairness or want of good faith. They seem to have informed, advised and instructed their client fully and fairly as to the nature and extent of the rights and interests which she had obtained or could avail herself of through the instrumentality of her judgment, and counselled and endeavored to persuade her not to sell the judgment, but to hold and use it as a means of acquiring title to her brother’s interest in said land. There was no-misrepresentation or concealment of any fact, and the influence over their client which the appellants may have possessed growing out of their confidential relations with her, so far as it was exercised at all, was exercised in opposition to her making any disposition of the judgment. Their treatment of her, and their attitude in relation to the proposed transaction were such as placed her in a position where she was able to deal with her attorneys at arrn’s length, and there can be no doubt that she did so deal with them, and that too wholly upon her own judgment and as the result of her own deliberate choice.

It is true she was a young woman only two years past her majority, and does not seem to have had much business experience. These facts would doubtless be important if the evidence gave us any intimation of any unfairness or want of good faith on the part of her attorneys. Her inexperience would only be an additional ground for scrutinizing their conduct with very great closeness and even suspicion. But as they seem to have exercised towards her perfect fairness and good faith, and to have advised her wisely and judiciously, the consequences of her refusal to be guided by their advice should be visited upon her and not upon them. She was sui juris and legally capable of acting for herself, and only so far as her conduct may have been actually or presumptively influenced by her attorneys, ought they to be held responsible for it.

But it is urged that the price paid by the appellants for said judgment was grossly inadequate, and that the decree should be sustained on that ground. The sum paid by the appellants, including costs and attorneys’ fees, was $275, and whether that sum was inadequate or not must depend upon what is shown to have been the fair cash value of the judgment at the time the assignment was made. The court below found such value to be equal to the face of the judgment, viz., $716, and the decree was based mainly if not wholly upon the ground of the inadequacy of the price paid.

The judgment is shown to have been a valid and first lien upon an undivided one-fifth interest in the remainder after a life estate in said tract of land, the life tenant then being sixty-one years of age. The value of an undivided one-fifth of the land, as has already been stated, was from $1600 to $1760, and the mode which seems to have been adopted to ascertain the value of the remainder was, by deducting from the value of the fee the estimated value of the life estate, such estimate being made upon the basis of the probable duration of the life of the tenant, as shown by the tables generally recognized by the courts as authentic. By such computation the value of an undivided one-fifth interest in the remainder was shown to be something in excess of the amount of the judgment, and the conclusion was therefore drawn that the judgment was worth its face.

There can he no doubt that for many purposes, the above mentioned mode of determining the relative value of a life estate on the one hand and of the remainder or reversion on the other, may be sufficiently accurate, and may produce just and satisfactory results. Such would be the case where the tenant for life is willing to relinquish his estate and accept in lieu of it a just and equitable proportion of the entire value of the land, but we are of the opinion that, as applied to the facts of this case, it would establish a criterion of value which would be unjust and delusive.

In determining whether property sold has brought an adequate price, the ordinary inquiry is as to its market value. If it is property of a kind frequently bought and sold so as to establish a market price, the question is comparatively free from difficulty. But if there is no established or ascertainable market price, it is proper to inquire as to what purchasers would he likely to give for .the property in question, under all the circumstances, if given a fair opportunity for competition. The property sold in this case was a judgment against an insolvent debtor, its only value arising from the fact that it entitled the owner to a specific lien upon an estate in remainder after the termination of a life estate, the life tenant being sixty-one years of age, and apparently in good health. Her life expectancy, as shown by the tables, was some seven or eight years, hut the tables furnished no criterion by which it could be ascertained how long she would in fact live. She was of course liable to die at any moment, and there was a possibility that she might live many years beyond the period of expectancy given her by the tables. There were no legal means of extinguishing her title without her consent by paying her the estimated value of her life estate computed according to the tables, and while she lived, whether for a longer or shorter period of time, her life estate entitled her to the exclusive possession and enjoyment of the entire tract. It follows that, for all practical purposes, a purchaser of the judgment would obtain, so far as could then be foreseen, an interest of very uncertain value. This element of uncertainty, if not sufficient to deter men from purchasing altogether, would naturally and necessarily have a very depressing effect upon the price which purchasers would be willing to offer. Prudent men, who are usually disposed to deal on the safe side, would be likely, in fixing the price they would be willing to pay, to estimate the probable continuance of the life estate at its extreme limit. Mr. Morrison, in his negotiations with the ap-pellee, only announced a principle upon which most prudent men"would have been likely to act, when he told her that he would have nothing to do with it except upon the basis of an expectation that the life tenant would live a long time. There is no evidence upon which to base a finding that the judgment could, at the time, have been sold at its face, or that any other purchaser could have been found who would have been willing to pay a larger or even as large a price as that paid by the appellants, but all the evidence there is on the subject is directly the other way. The appellee was sent by the appellants to other parties to find a purchaser, and the highest offer she was thus able to obtain was $100.

Our conclusion is, that there is no ground for holding that the price paid by the appellants was inadequate; and as they have shown that the transaction was fair and honest on their part, and that they were guilty of no want of fidelity to the interests of their client, we see no reason why the purchase should not be upheld. In our opinion the decree of the court below setting aside the assignment of the judgment and charging the appellants as trustees for the appellee in respect to the lands purchased under the execution is unwarranted by the evidence. The decree will therefore be reversed and the cause remanded with leave to the parties to introduce additional evidence if they shall so desire and for such further proceedings as shall not he inconsistent with the rules of law as here-inbefore expressed.

Decrae reversed.

Scholfield and Magbuoeb, JJ.:

We dissent from this, opinion.


author: Mr. Justice Craig

text:
    John H. S. Quick v. The Village of River Forest.

      Filed at Ottawa

      November 26, 1889.

    1. Special assessments,—notice of application for confirmation— •waiver of defects therein. The voluntary appearance of objectors in a proceeding to confirm a special assessment, and the filing of objections on the merits, "will be held to be a "waiver of defects in the notice of the application for confirmation.
    2. Same—witnesses—competency of commissioners to impeach their own report. Commissioners appointed by a city or village council or board of trustees to make special assessments of benefits to real estate by a proposed local public improvement, can not be called as witnesses to impeach their report by showing that they failed to discharge their duties, after such report has been acted upon and approved by the proper municipal authorities.
    3. Same—evidence—declarations of commissioners to impeach their report. The declarations of commissioners appointed to make special assessments are inadmissible in evidence to impeach their report, on objection made to the confirmation of such report.
    Appeal from the County Court of Cook county; the Hon. Bichabd Pbendebgast, Judge, presiding.
    Messrs. Miller, Leman & Chase, for the appellant.
    Mr. Geobge L. Thatcher, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

This is an appeal from a judgment of the county court of Cook county, confirming a special assessment of the village of River Forest, ordered to pay for a certain drain to be constructed in Chicago avenue. The appellant appeared in the county court and filed certain objections to a confirmation of the assessment, and on a trial before the court, a jury having been waived, he called as a witness one of the commissioners who had been appointed by the village to estimate the cost of the improvement, and offered to prove that he had no meeting or conference at any time with the other commissioners, or either of them, in regard to the cost, or in regard to said estimate of cost, or the making of the same, and that no such meeting or conference was had, and that witness did not make up or form any estimate of such cost,—to which evidence petitioner objected, on the ground that it was not competent to impeach the written return or-report of said commissioners of the estimate of such cost, by the evidence of one of the commissioners. The objection was sustained, and the evidence excluded on that ground. The other commissioners were also called, and objector offered to prove the same facts by them; but, upon objection, the court held that the evidence was incompetent.

Section 20, of article 9, of the act in relation to cities, villages and towns, (Rev. Stat. 1874, p. 235,) under which this proceeding was instituted, provides that the city council or board of trustees shall appoint three of its members, or any other three competent persons, who shall make an estimate of the cost of a contemplated improvement, including labor, materials, and all other expenses attending the same, and the costs of making and levying the assessment, and shall report the same in writing to said council or board of trustees. The three commissioners who were appointed by the village under this section of the statute, made out and signed a report in writing, as required by the statute, which was filed and approved by the board of trustees of the village, and the question presented by the offered evidence is, whether the commissioners can be called as witnesses to impeach their own report, after it has been accepted and approved by the board of trustees.

The law required the commissioners to meet and act together in estimating the cost of the improvement and the costs of making and levying the assessment. Their duties required investigation, deliberation, and a final determination of the subject referred to them by the board of trustees, and we are aware of no authority which would sanction the calling of such persons to stultify themselves. It may be true that the statute does not, in terms, require such commissioners to be sworn; but their acts are none the less obligatory and binding. Their duties require as much honesty and fidelity where they are not sworn, as if they were acting under oath, and we think it would be establishing a dangerous rule to allow such persons to come upon the witness stand and impeach their voluntary action, after suóh action has been approved and acted upon by the board of trustees. We are not, however, without authority on the question. In Wright v. City of Chicago, 48 Ill. 285, it was expressly held that such evidence was not admissible.

The objector also offered to prove the declarations of the commissioners, for the purpose of impeaching their report. They were not parties to the suit, and what they may have said could not be binding on the village, and if they were not competent to testify to what they did, as we have seen they were not, clearly resort could not be had to their declarations.

The next objection interposed to the assessment was, “that the commissioners appointed to make the assessment did not estimate what proportion of the total cost would be of benefit to the public and what proportion would be of benefit to the property to be benefited, and apportion the same.” It appears from the record, that the estimated cost of the improvement, as reported by the commissioners and approved by the board of trustees, was $6000. Section 4 of the ordinance providing for the improvement, provided that one-half of the cost of the improvement should he paid for by special assessment, to be levied upon property benefited thereby, and the remainder of such cost should be paid by general taxation. Owing to the fact, we presume, that the ordinance provided that one-half of the amount to be raised should be paid by special assessment and one-half by general taxation, counsel for appellant arrive at the conclusion that the commissioners appointed to make the assessment did not estimate what proportion of the total cost would be of benefit to the public and- what proportion would be of benefit to the property to be benefited, and apportion the same, as required by section 139. In this, however, it is apparent that counsel have misapprehended the true condition of the record. The ordinance providing for the improvement, the commissioners’ report, and assessment roll, were put in evidence by the petitioner, and the certificate appended to the assessment roll, signed by the commissioners, among other things, contains the following:

“River Forest.—The undersigned, commissioners appointed by the county court of Cook county to assess one-half the cost of * * * do hereby certify that they, have completed the foregoing assessment roll, showing, etc.; * * - * that before proceeding to make said assessment they were duly qualified before entering upon their duties, as appears by thp oath hereto attached; that they examined the locality where the said improvement is proposed to be made, and the lots, blocks, tracts and parcels of land which will be specially benefited thereby, and did estimate what proportion of the total cost of said improvement will be of benefit to the public and what proportion thereof will be of benefit to the property to be benefited, and did apportion the same between the city of Chicago and such property, so that each shall bear its relative equitable proportion.”

The words “city of Chicago” are evidently used, by mistake, for “River Forest.”

From the foregoing certificate of the commissioners, which is a part of the assessment roll, it is apparent that the commissioners followed the requirement of section 139, notwithstanding the fact that the ordinance contained a provision that one-half of the amount should be raised by general taxation and the other half by special assessment. So far, then, as this objection of appellant is concerned, it is without foundation.

It is also insisted, that the notice of the assessment, and of the term of court at which a final hearing will be had, was not given in the manner required by law. We shall not stop to determine whether the notice, in all respects, conforms to the statute or not. The appellant appeared in court in obedience to the notice, and filed objections to the confirmation of the report, and whether the notice was defective or not, under such circumstances, is a matter of no moment, as the appearance without objection must be held as a waiver of all defects contained in the notice.

The judgment of the county court will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Shope

text:
    John B. Frink v. Pratt & Co.

      Filed at Springfield

      October 31, 1889.

      1. Landlord's lien—upon crops—character of the lien. The lien given by statute to a landlord on the crops for the rent of the premises does not invest him with the title thereto, either general or special. Por any injury to the crops grown or growing, the right of action is in the tenant alone. The legal title remains in the tenant, simply charged with the lien of the landlord, and such lien is in some respects analogous to the lien given by law to officers under executions. Without a levy or taking possession of the crops, the landlord, though invested with a lien, has no such title to the same as will enable him to maintain trover for their conversion.

      2. The landlord’s interest in the crops raised toy his tenant, who is to pay a cash rent, is that of a mere security for the payment of the rent. It differs from the security of a chattel mortgage, in which the legal title passes to the mortgagee. In case of a chattel mortgage, trover or replevin lies on breach of its condition.
    3. Same—as to the crops of a different year—from that for which the rent is due. A landlord’s lien on the crops of a given year is confined to the rents due for that year. He will have no lien on such crops for unpaid rent of a prior year.
    4. - Trover—when the action will lie—essentials to support the action. In trover, the plaintiff must recover on the strength of his own title, without regard to the weakness of that of his adversary. It is a pos-sessory action, and in order to maintain it, the plaintiff must show in himself either a general or a special property in the thing alleged to have been converted. It is essential that the plaintiff, at the time of the conversion, should have not only the right of property in the chattel, but also the right to the immediate possession.
    5. The plaintiff, in order to recover, must show a legal title. His right to possession must be immediate, absolute and unconditional, and not dependent on some act to be done by him. It is not enough that he has a mere right of action, or a right to take possession at some future day.
    6. Same—by landlord—to recover crops from purchaser of tenant. Where a landlord has not invested himself with the right to the possession of his tenant’s crops by the issue and levy of a distress warrant, or taken other measures to give him a right to the immediate possession, he can not maintain trover against a purchaser of the crops from the tenant, whether such purchaser took with or without notice of the landlord’s lien, but must pursue the appropriate remedy given him by law.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Macon county; the Hon. C. B. Smith, Judge, presiding.
    By written lease, March 11, 1884, Daniel Wampler became the tenant of appellant for three years, at a yearly rental of $500 and taxes assessed upon the premises rented. The rent, by the terms of the contract, fell due on the first day of January each year. Wampler occupied the farm rented, and raised crops thereon in the years 1884 and 1885. He paid about $351 of the first year’s rental, and the taxes for that year, but he paid nothing on the rent of 1885, falling due January 1, 1886, nor the taxes of 1885. On the 11th day of December, 1885, Wampler sold all the corn raised on the demised premises that year to one Twaddell, agent of appellees at Lake City, in Moultrie county. The sale was of 2498 bushels of corn, at twenty-three cents per bushel. The purchase was made December 11,1885, but the corn was not paid for until January 1, 1886, and was accepted by the agent of appellees in cribs situated on the farm where raised. About two weeks afterward Twaddell shelled the corn at the cribs, had it hauled and loaded in the cars at Lake City, and shipped to appellees at Decatur, who, previous to its arrival at Decatur, had sold the same to parties in the east, and it was forwarded to them. Appellant brought trover against appellees to recover damages for the conversion of the grain, to the extent of the rent due and unpaid by the tenant. It was contended by appellant, that appellees, through their agent, Twaddell, had notice that Wampler was appellant’s tenant, or had notice of such facts and circumstances as was sufficient to put them on inquiry, and therefore were not purchasers without notice of appellant’s rights. This was denied by appellees, and in respect thereof the testimony is conflicting. It was also contended, that whether appellees had notice or not, they were liable for having converted the crops grown on the premises, upon which appellant, as landlord, had a lien for the rent due and unpaid. A jury was waived, and cause tried by the court, by consent. The issues were found for the defendants, and judgment rendered accordingly. The Appellate Court affirmed the judgment, and appellant (plaintiff below) brings the record to this court by his further appeal.
    Messrs. Blades & Neville, for the appellant.
    Messrs. Outten & Vail, for the appellees.
   Mr. Chief Justice Shope

delivered the opinion of the Court :

Appellees were dealers in grain at Decatur, Illinois. Their agent at Lake City purchased of one Wampler, December 11, 1885, 2498 bushels of corn, in cribs on the farm then occupied by Daniel Wampler, to be accepted by Twaddell in the crib, and full payment was made of the price of the corn January 1, 1886. Shortly afterwards the corn was shelled, hauled to Lake City, and shipped to appellees at Decatur, by their agent, and in the regular course of business was forwarded by appel-lees to their customers in the eastern cities. This is an action of trover, by appellant, against appellees, to recover damages for the wrongful conversion of said corn, he claiming a lien thereon, as landlord of Wampler, for rents due for the farm on which the same was raised, for the years 1884 and 1885.

There is no doubt but Wampler was the tenant of appellant, under a written lease, by which the farm upon which the corn in controversy was raised, was demised to Wampler for three years. The rent, payable the 1st of January of the next year, was $500 in cash and the taxes accruing on the land. At the time of the sale of the corn there was due and unpaid on the rent of 1884 about $149, while upon the rent for 1885, which fell due January 1, 1886, nothing had been paid. It would seem that the corn sold by the tenant to the appellees was the crop raised in 1885, and if that be so, appellant had no lien thereon for the rent of the year 1884 remaining unpaid. (Prettyman v. Unland, 77 Ill. 206.) However, the first question presented by the record is, whether the action will lie,—that is, was appellant invested with such right of property in, or right to the possession of, the corn alleged to be converted, as would enable him to maintain an action of trover.

In trover the plaintiff must recover on the strength of his own title to the property, without regard to the weakness of that of his adversary. It is a possessory action, and in order to maintain it the plaintiff must show in himself either a general or special property in the thing converted. (Davidson v. Waldron, 31 Ill. 120.) It is essential that the plaintiff, at the time of the conversion, should have not only the right of property in the chattel, hut also the right to its immediate possession. (Chitty’s Pl. 149; Bailey v. Godfrey et al. 54 Ill. 509; Forth v. Pursley, 82 id. 152; Owens et al. v. Weedman, 82 id. 409; Bertkolf v. Quinlan, 68 id. 297.) The plaintiff must show a legal title. His right to possession must be immediate, absolute and unconditional, and not dependent upon some act to be done by him. (Owens et al. v. Weed-man, supra.) Cooley, in his work on Torts, p. 445, says: “When, therefore, it is said that the plaintiff in trover must have had, at the time of the conversion, the right to the property and also a right of possession, nothing more can be intended than this: that the right of which he complains he has been deprived must have been either a right actually in possession, or a right immediately to take possession. It is not enough that it be merely a right in action, or a right to take possession at some future day.”

The statute gives the landlord a lien on “the crops grown or growing upon the demised premises for the rent thereof,” etc., but does not invest him with the title thereto, either general or special. For any injury to the crops grown or growing, the right of action is in the tenant alone. The legal title remains in the tenant, charged with the lien of the landlord thereon, until it is divested in some mode known to and recognized by the law. This lien, in respect to the legal rights of the holder, is in some respects analogous to the lien given by law under executions. An execution is a lien upon the personal property of the debtor not exempt, from the time it comes to the officer’s hands, and gives the officer the right to seize and sell the same for the satisfaction of the judgment upon which it has issued. But without a levy, or reducing the property of the debtor to possession, the officer, though clothed with a lien, has no such title to the property as will enable him to maintain trover for its conversion by another. In Mulheisen et al. v. Lane, 82 Ill. 117, it is held that an officer acquires no such interest in property, prior to his seizure thereof under his execution, as will give him the right to recover the value thereof in an action of trover, or the property itself in replevin, and that until after a levy he has no such right in the property that he can maintain any action in respect thereof, and that the mere right to levy upon the property gives the officer no interest in the property itself. (See, also, Davidson v. Waldron, supra; Powers v. Wheeler, 63 Ill. 29.) In Watt v. Scofield, 76 Ill. 261, the tenant, before his rent fell due, sold the entire crop to Watt, who was shown to have had notice of the landlord’s lien. The landlord sued Watt in trover before issuing a distress warrant. The court, while holding that Watt was' not a bona fide purchaser without notice, and therefore liable to the landlord in an appropriate .action, held that trover would not lie.

If, then, a sheriff, without a levy of his execution, can not maintain trover for a conversion of the execution debtor’s property after his lien has attached, it is difficult to perceive upon what principle a landlord, having a mere lien on his tenant’s crop, can maintain an action of trover against a purchaser from his tenant, either with or without notice of the landlord’s lien. Until the landlord has issued his warrant he will have no such title or interest in the crop itself as will enable him to maintain trover. Until then he is not even entitled to the possession. The landlord’s interest in the property of his tenant who pays a cash rent, is that of a mere security for the payment of the rent. It differs materially from the security of a chattel mortgage. In the case of a chattel mortgage, the legal title passes to the mortgagee as a security for the performance of the conditions of the mortgage, and hence, on a breach of the condition, trover or replevin will lie. But as between landlord and tenant, as we have seen, the latter holds the legal title, subject to be taken away by appropriate proceedings to enforce the landlord’s lien. It is true that this lien is given by the statute, and does not depend upon the issue or levy of the distress warrant for its existence or vitality, and that it may be enforced against or upon the property to which it attaches, so long as the same may be found. Nor do we intend to be understood that the issue and levy of a distress warrant is the exclusive or only remedy for the assertion or protection of the landlord’s lien. (Thompson v. Mead et al. 67 Ill. ,395; Hunter et al. v. Whitfield, 89 id. 231; Wetsel v. Mayers et al. 91 id. 497.) Thus, if the crop of the tenant be taken on execution or writ of attachment, the landlord’s lien upon the crops grown, for the rent of that year, whether due or not, is superior, and will hold the property. O’Hara v. Jones, 46 Ill. 288; authorities supra.

If appellees were not bona fide purchasers of the corn, without notice of appellant’s lien thereon, or the purchase was made to defeat the landlord’s lien by placing the corn beyond the reach of a distress warrant properly issued, an appropriate remedy is provided. Powers v. Wheeler et al. 63 Ill. 29; Watt v. Scofield, supra; Prettyman v. Unland, supra.

All questions of fact controverted between the parties have been settled against the contention of appellant by the judgment of the Appellate Court.

We are of opinion that there was in appellant no right of recovery in this cause, and the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Wilkin

text:
    David Quick v. The Indianapolis and St. Louis Railway Company.

      Filed at Springfield

      October 31, 1889.

    1. Bailboads—cars undergoing repairs—rule requiring signals to be placed upon them, for protection of servant—the rule construed. A rule of a railway company required its yardmasters to see that the yards be kept in good order, and that cars passing should be properly inspected, and that all cars requiring serious repairs be promptly sent to the shops. By another rule it was required that car inspectors should report to and receive their instructions from the master mechanic, but should obey all orders of the superintendent or trainmaster and report to them as they should direct; that they should make such repairs as might be required and send to the shops all cars not fit for service; and such rule then provided, that “when making repairs to cars standing on main track or side-track, they must protect themselves by placing a blue signal in the draw-head or on the platform or step of the car, at each end of the train, to prevent the cars from being coupled to or moved while they are making repairs Held, that such latter part of the rule had no-application to cars sent to the yard or repair-shop and standing in the yard, but to those only which were on the main or side-track.
    2. Negligence-—cars in repair yard■—omission of servant to place signals upon them—as required by a rule of the company. A servant of a railway company, while assisting, in repairing a car in the repair yard, was injured by the engineer upon an approaching train running against such car without any signal or notice. A rule of the company required servants, while repairing cars standing on the main or side-tracks, to place a blue flag on each end of the train to protect themselves from injury by the coupling on to such cars. Another rule required that cars sent to the yards for repairs should be marked with chalk, which was to be erased when the repairs were completed; and such mark was placed upon the car being repaired, but no blue flag was placed upon either end of such car: Held, that the failure of the servant to place such flag on the car was not such negligence on his part as to preclude a recovery by him.
    3. Special bindings—as controlling the general verdict—and herein, how to direct a special finding. In an action in such case the jury found a general verdict in favor of the plaintiff, and in response to special questions found that no flags were displayed'on the car to warn the engineer on the approaching train of the fact that the plaintiff was under the car, and that plaintiff did not ask for or inquire after the signal flags to get them for his own protection, and also that the rules of the company provided that servants, when making repairs to cars standing on the main or side-tracks, should protect themselves by placing a blue signal in the draw-head or on the platform of the car, at each end of the train, to prevent cars from being coupled to or moved while they were making repairs. The court, on the special findings, rendered judgment for the defendant: Held, that the court erred, as such findings did not show that the plaintiff was guilty of negligence.
    4. If the defendant company desired a special finding of the jury on the question of the plaintiff’s care or negligence, it should have submitted to them whether or not it was his duty to put out blue flags on the car he was repairing, or whether or not the rules of the company provided for putting out such signals when making repairs at the place such car was standing, or on all cars being repaired.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Coles county; the Hon. C. B. Smith, Judge, presiding.
    Messrs. Craig & Craig, for the plaintiff in error.
    Mr. John T. Dye, and Mr. William H. Dye, for the defendant in error.
   Mr. Justice Wilkin

delivered the opinion of the Coupt:

This was an action on the case, by plaintiff in error, against defendant in error, for a personal injury, alleged to have resulted through the negligence of its employes. On the trial the jury returned a general verdict for plaintiff, and assessed his damages at $500.

Both parties requested, and the trial court directed, that the jury find specially upon several questions of fact. Those submitted at the request of the defendant, and the finding of the jury on the same, are as follows:

Q. “Did the injury complained of in the declaration result from the moving up a car on a track in the yards of the defendant in attempt to attach a locomotive thereto while Quick was at work making repairs under the car ?—Yes.

Q. “Were any flags displayed on said car, or in front of the same, to warn the engineer of the approaching train of the fact that plaintiff was at work under said car?—No.

Q. “Was any signal or warning of any kind given to the engineer of the approaching train of the fact that the plaintiff was at work under said car ? If so, what signal or warning was given ?—No.

Q. “Were there blue flags in the yard of said company, where said accident occurred, at the time Quick went under said car, provided for the express purpose of being used as signals of danger when car repairers or inspectors should be at work under cars ?—No.

Q. “At the time Quick went under said car to work, did he know these blue flags were in the yard ?—Yes.

Q. “Did the rules of «the defendant company provide, that when making repairs to cars standing on the main track or side-track, they must protect themselves by placing a blue signal in the draw-head or in the platform of the car, at each end of the train, to prevent the cars from being coupled to or moved while they are making repairs ?—Yes.

Q. “Did the plaintiff, Quick, at the time he went under the car, before the happening of the accident complained of, display any blue flag or signal of any kind to protect himself from danger of the car being coupled onto or moved while he was under the car?—No.

Q. “Did he ask for or inquire after the signal flags, to get them for his own protection?—No.”

On motion of the defendant, judgment was entered for it on the special findings, notwithstanding the general verdict. That judgment was affirmed in the Appellate Court.'

The only controversy in this court is as to whether or not the special findings on behalf of defendant are so inconsistent with the general verdict as to justify the judgment rendered by the circuit court.

It is insisted on behalf of defendant in error, that the special findings of the jury convict the plaintiff of such negligence on his own part as will bar his right of recovery, regardless of the negligence of the employes of the defendant, and upon that theory the judgment of affirmance in the Appellate Court is based. There is nothing appearing on the face of the foregoing special findings to justify the claim that the jury found the plaintiff guilty of negligence. To warrant any such conclusion it must be assumed that he was, at the time of the injury, repairing a car “standing on the main track or side-track.” The evidence clearly shows the contrary to be true. He was employed by the company in its shops in the city of Mattoon, as a carpenter, and it was, among other things, his duty to assist in the repair of cars at that place, under the directions of one Lietehen, foreman of the car department. On the 7th of November, 1885, a freight car loaded with stone was placed in the shop-yard for repairs, and plaintiff and a fellow-workman were directed by Lietehen to repair it, by putting in a pair of wheels. While so engaged, being under the car, an engine backed into the yard, and in attempting to couple onto the car caused the injury sued for. There is no dispute as to the fact that the ear was at this time in the repair-yard, some distance north of the main track and switches. It appears from the evidence, that the manner of repairing cars at that place was, when the car inspector found a car disabled, and he could not repair it on the track or side-track, he sent it to the shop or yard, there to be repaired.

Eule 198 of the company was introduced in evidence, as follows: “Yardmasters must see that the yard is kept in good order, that the ears passing are properly inspected, and that all cars requiring serious repairs are promptly sent to the shops.”

One of the strongly contested • questions of fact on the trial was, whether or «not it was made the duty of plaintiff, by the rules of the company or by instructions from his foreman, to put a blue flag or signa}. on the car being repaired, to protect himself from danger while so engaged. The plaintiff contended that the rule was, when a car was sent to the shops or repair-yard, to put on it a chalk mark indicating the repair needed, which remained until the work on it was completed, and then erased; that until the chalk mark was taken off the car could not be rightfully moved, and that the car in question had been so marked, and the marks not erased at the time he received his injury. On the contrary, defendant insisted that the blue flag or signal was to be placed on all cars being repaired, wherever located; that it was the duty of the workmen engaged in repairing any car to put out such flag or signal for their own protection, and that engineers, and all other employes whose duty it was to move cars, had a right to take out all cars not displaying such flags or signals. On this issue the company introduced in evidence this rule:

“Car inspectors will report to and receive their instructions from the master mechanic, but will obey all orders of the superintendents or train master, and report to them as they direct. * s * They will make such repairs as may be required, and send to the shops all those not fit for service. They must give special attention to the passenger, baggage, mail and express cars, and permit none to leave their stations that are not in good running order. When making repairs to cars standing on main track or side-track, they must protect themselves by placing a blue signal in the draw-head or on the platform or step of the car, at each end of the train, to prevent the cars from being coupled to or moved while they are making repairs.”

It seems too clear for argument, that this rule can not be applied to the car on which plaintiff was working when injured. It applies only to “cars standing on main track or side-track.” This car was on neither, but in the repair-yards. There is a manifest reason why the rule should be made applicable to the one and not the other.

It is insisted, however, that, regardless of the applicability of the printed rules, the proof shows that by the instructions of his foreman, and by the usual and recognized custom among the workmen, it was the duty of plaintiff to have displayed such signals, or to see that it was done. On this question of fact no opinion need be expressed; but if it should be admitted, the concession would not help defendant’s case on this record. In that case, under the former practice, it would have been the duty of the trial court to set aside the general verdict, as contrary to the evidence. Under the present statute, if the jury had found that it was his duty, generally, to have put up such signals, judgment might have been properly rendered for the defendant on such finding, notwithstanding the general verdict. But the jury made no such finding. What they did find was, that the rules of the defendant provided, that when making repairs to ears standing on the main or side-tracks, the workmen must protect themselves by placing signals, etc. Each of the special findings in this case may be true, and yet the plaintiff be entirely free from negligence, for the simple reason he was not repairing a car on the main or side-tracks. If the defendant desired a special finding of the jury on the question of plaintiff’s care or negligence, it should have submitted to them whether or not it was his duty to put out blue flags on that car, or whether or not the rules provided for putting out such signals when making repairs at the place this car was standing, or on all cars being repaired.

The circuit court erred in entering judgment on the special findings, and for that error the judgment of the Appellate Court must be reversed. The cause will be remanded to that court, with directions to reverse the judgment of the circuit court, and remand the cause to that court, with directions to it to entertain a motion for a new trial by defendant, if one shall be made, and if overruled, to enter judgment on the general verdict.

Judgment reversed.


author: Mr. Justice Magruder

text:
    The People ex rel. George J. Sayer v. Gwynn Garnett et al.

      Filed at Springfield

      October 31, 1889.

    1. Mandamus—when the proper remedy-—generally. The absence or want of any other adequate and specific remedy is not, of itself, sufficient to lay the foundation for interference by mandamus.

    2. Same—in matters of judicial discretion—not to serve the office of a writ of error. A writ of mandamus will not be issued by a superior to any inferior court for thq purpose of controlling the latter in the exercise of its judicial judgment or discretion.
    3. Where a judge- of an inferior court refuses to act in a matter brought before him as a court, mandamus will lie to compel him to proceed with the case. But when he does not refuse to act, but in the exercise of his judicial judgment makes a ruling, however erroneous, mandamus will not lie to control his judgment and require him to vacate the same. The writ is not designed to serve the office of a writ of error.
    4. The Appellate Court dismissed an appeal from an order of the trial court overruling a motion to dissolve an injunction, on the ground that the act allowing such appeal was unconstitutional and void. It was held, that mandamus would not lie to compel the judges of the Appellate Court to vacate the order of dismissal, however erroneous it might be, and to proceed with the case, and this although the relator might have no other remedy for the review of the judgment of the' Appellate Court.
    This was a petition filed in this court by George J. Sayer, against Gwynn Garnett, Thomas A. Moran and Joseph B. Gary, judges of the Appellate Court, for a writ of mandamus to compel the respondents to vacate an order dismissing an appeal.
    Messrs. Moses & Newman, for the petitioner.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is a petition filed in this Court at the June Term, 1889, in the name of the People on the relation of George J.' Sayer, for a peremptory writ of mandamus to be directed to the judges of the Appellate Court of the First District, commanding them to vacate an order, entered by them, dismissing an appeal taken from the Circuit Court of Cook County to said Appellate Court for want of jurisdiction, and also commanding them “to cause said appeal to be reinstated upon the records of said Court and to proceed in the premises as by law and by the usages of said Court is required.”

On January 19, 1889, one Siegmund Oppenheimer and others filed a bill in the Circuit Court of Cook County against the said Bayer, and obtained an order for an injunction against him restraining him from engaging in a certain business therein mentioned. He appeared in the suit and filed an answer under oath, together with affidavits, and moved to dissolve the injunction. On March 5, 1889, the Circuit Court entered an order refusing to dissolve the injunction but modifying it in several particulars. Bayer then made a motion to dissolve the injunction as modified, which motion was overruled. Delator then appealed to the Appellate Court from the order overruling the motion to dissolve the injunction as modified.

The appeal was taken under an Act of the Legislature, approved June 14, 1887, entitled “An Act to-provide for appeals from interlocutory orders granting injunctions or appointing receivers.” The Appellate Court dismissed the appeal, stating in their order of dismissal, that they did so “for-the reason that so much of the statute, under which said appeal was granted, as allows appeals from orders refusing to dissolve injunctions, is void.”

A mandamus will not be issued by a superior to an inferior court for the purpose of controlling the latter in the exercise of its judicial judgment or discretion. Where one of the Appellate Courts of this State dismisses an appeal to it from a Circuit Court for want of jurisdiction, it thereby judicially determines a question incident to the proceedings and properly arising therein; in passing upon the. question it acts in a judicial capacity, and, therefore, mandamus will not lie to compel the reinstating of the appeal.

In ex parte Railway Co. 103 U. S. 794, a Circuit Court of the United States had dismissed a suit and dissolved an attachment on the ground that it had no jurisdiction to issue the attachment, and the Supreme Court of the United States refused to issue a mandamus to compel the Circuit Court to set aside its order, saying: “it is an attempt to use the writ of mandamus as a writ of error to bring here for review the judgment of the Circuit Court upon a plea to the jurisdiction filed in the suit.”

In ex parte B. & O. R. R. Co. 108 U. S. 566, the Federal Circuit Court had sustained a motion to vacate a writ of replevin because the court had no jurisdiction, and had dismissed the action; the Federal Supreme Court refused to issue a mandamus to compel the Circuit Court to take jurisdiction of the replevin suit, and said: “In ex parte Railway Co. 103 U. S. 794, it was expressly decided that a writ of mandamus could not be used to bring up for review a judgment of the Circuit Court on a plea to the jurisdiction.”

In the People v. The Judges of Dutchess C. P. 20 Wend. 658, the Court refused to issue a mandamus to compel the Judges of the court of common pleas to vacate an order quashing an appeal to them from a justice of the peace for want of jurisdiction, and it was there said: “The court of common pleas, acting within the scope of its jurisdiction, has heard and decided a matter properly brought before it for adjudication, and the question is whether we can, by mandamus, require that court to undo what it has done on the ground that the decision was erroneous. * * * the writ of mandamus cannot be awarded for the correction of judicial errors. This court, in the exercise of its supervisory power over inferior tribunals, can require them, by mandamus, to proceed to judgment, but we cannot dictate what particular judgment they shall render; much less can we require them to retrace their steps and reverse a decree already made.”

In People v. Weston, 28 Cal. 639, where a county court had dismissed an appeal from a justice of the peace because there was no stamp on the return, an application was made to the Supreme Court of California for a writ of mandamus, requiring the County Judge to proceed and try the cause which had been appealed to it, and the Supreme Court denied the writ, saying: “The Court had jurisdiction to enquire and determine whether the appeal had been properly taken, and was then pending in that Court or not, and in determining that question acted judicially. The Court did not refuse to act, but acted, and j udicially determined that the appeal had not been properly taken, and upon this ground dismissed it. Where the act to be done is judicial in its character the writ will not direct in what manner the inferior Court shall act, but only direct it to act.”

In Goheen v. Myers, 18 B. Monroe, 424, the quarterly court had dismissed an appeal from a justice of the peace for want of jurisdiction, and it was held that a mandamus would not lie to compel that court to reinstate the case and hear and determine the same. The Court of Appeals of Kentucky there said: “The judge, in passing upon the question of jurisdiction, was obviously acting in a judicial and not ministerial character, and, in such case, as already stated, a mandamus will not lie against him for the correction of his judgment, however erroneous.”

In Treadway v. Wright, 4 Nev. 119, a mandamus was asked of the Supreme Court to compel a District Judge, who had dismissed an appeal from a -justice, to proceed with the trial of the case so dismissed. The writ was refused, and the Supreme Court said: “The judge below may have erred in dismissing the appeal, but it is very certain that the error cannot be corrected by mandamus. * * * To do so would be simply to convert the writ of mandamus into a writ of error. * * * In the case of Cavanaugh v. Wright, 2 Nev. 166, the Court refused to proceed with the trial, and the writ issued commanding it to try the cause. Hence, this is not a ease in point, as here the Court has disposed of the case to compel the trial of which this writ is asked.” (High’s Ex. Leg. Rem. sec. 173, 176.)

In the case at bar, the order of the Appellate Court dismissing the appeal recites, in addition to what has already been-quoted, that the Court has “diligently examined and inspected as well the record and proceedings aforesaid as the matters and things therein assigned for error, and being now sufficiently advised, etc., are of the opinion that said cause should be dismissed.” It is manifest, from the language of its order, that the Appellate Court acted judicially in determining that the appeal should be dismissed. That Court did not refuse to act, but acted, and decided that the portion of the statute which authorized the appeal was void. Hence, the writ of mandamus cannot be used to compel it to reverse its decision. The Act of June, 1887, itself contemplates that the appeals from the Circuit Court, for which it provides, may, in certain eases, be dismissed by the Appellate Court, because it specifies that a solicitor’s fee may be allowed “if such appeal is dismissed.”

If it be true, that the relator in this case has no other mode of reviewing the action of the Appellate Court, it does not follow that the writ of mandamus ought to be issued. “The absence or want of other adequate and specific legal remedy is not, of itself, sufficient to lay the foundation for interference by mandamus.” (High on Ex. Leg. Bern, page 25, 2d ed. sec. 19).

Accordingly, the prayer for the writ of mandamus is denied.

Mandamus refused.


text:
    The German Fire Insurance Company v. Wilhelmina Gueck et al.

      Filed at Springfield

      October 31, 1889.

    1. Mistake—in policy of insurance—reformed, in equity. If the contracting parties to a policy of insurance make a mistake in the description of the premises insured, or in the names Of the insured, a court of equity, upon proper proof, may reform the contract and correct the mistake.
    2. Insurance—waiver of proof of loss. Proof of loss under a policy of insurance is waived by the company placing its refusal to pay solely on the ground that the insured has no title or insurable interest in the property insured.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Calhoun county; the Hon. Cyrus Bpler, Judge, presiding.
    This was a bill in equity, brought to reform a policy of insurance issued by the German Fire Insurance Company to one Fred Gueck, on the ground it purports to insure his interest in certain property, when it should have insured the interest of the complainants, whose agent they claim Fred Gueck was, and on the further ground that a mistake was made in the description of the land on which the building was erected. The bill also seeks to enforce payment of the policy after it shall be reformed. The relief sought is resisted mainly on two grounds: First, there is no case made by-the pleadings or evidence entitling complainants to a decree to reform the policy; and second, if such a case were made, the evidence fails to show the complainants are entitled to a decree enforcing payment. On the hearing in the circuit court, on the pleadings and evidence, a decree was rendered in favor of the complainants, which, on appeal, was affirmed in the Appellate Court.

      Upon looking into tKe evidence, it appears that Christian Fiedler died intestate on the 23d day of November, 1869 ; that he left a widow, Wilhelmina, and Henry, William, Christian, Johanna and Charles Fiedler, and Louisa Simon and Eachel Bode, as his heirs-at-law. Fiedler died seized of the northwest quarter of section 20, township 11, south, range £, west, in Calhoun county. The widow was appointed administratrix of his estate. She testified, that the house on the place, when her husband died, was “not fit to live in,” “and the county court gave her permission to build a new one, which she did, at a cost of $2200.” The testimony shows that the widow employed Morris Fisher to build the house. He commenced the work in the fall of 1870, and finished the job in the spring of 1871. In the meantime, on January 6,1871, the widowwas married to Fred Gueck. Fisher was agent of the insurance company, and while building the house he 'had a conversation with Gueck and his wife in regard to insuring the property. On the 14th day of October, 1872, Gueck called on Fisher and informed him that his wife had concluded to insure the house for $1400. Fisher filled out an application. It was not read to Gueck or any of the parties interested. The first policy was then made out, and taken by Gueck to complainants. About five years afterwards another policy was issued, in renewal of the first, by the company. On or about October 13, 1882, a third policy was issued by the company, in the same amount, for five years, and while it (policy No. 209,025) was in full force and effect, to-wit, on or about October 15, 1886, the house burned down, and became a total loss.
    All the applications are in the handwriting of Morris Fisher, the agent of the company, and are signed, “Fredrich Gueck” and “Fred Gueck, ” respectively. Gueck never knew what the applications contained. He and Mrs. Gueck left all this business to Fisher, relying on him to have all the papers in proper form. The third, dated October 18, 1882, on which the policy No. 209,025 was issued, is the foundation of this suit. The land is incorrectly described as being in section 5, instead of section 20, as before,—township and range being right. The following question as to title appears: “5. Title.—Have you fee simple title?”—“Good.”—“If not, what kind of title have you ?”—to which there is no answer.
    The policies were all issued to Fred Gueck, although he had no interest in the property insured, and after the loss the company refused to pay, on the ground that he had no interest in the property, predicating its refusal upon the following clause in the policy: “In case the interest of the assured in
    said property is not the sole, absolute and unincumbered ownership thereof, both at law and in equity, this company shall not be liable to pay to the assured, by virtue of this policy, any sum exceeding the actual cash value of the interest of the assured at the time of the loss.”
    Messrs. Wilderman & Hamill, for the appellant:
    The party -alleging a mistake must show exactly in what it consists, and the evidence must be clear and satisfactory. Hearn v. Insurance Co. 20 Wall. 488; Sutherland v. Sutherland, 69 Ill. 488 ; Emery v. Mohler, id. 221; Mead v. Insurance Co. 64 N. Y. 456 ; Ford v. Joyce, 78 id. 618; May on Insurance, sec. 566; Kerr on Fraud and Mistake, 409,421,422; 1 Story’s Eq. Jur. sees. 152, 157.
    It must be alleged and proved that the mistake was mutual, —that is, the mistake of both parties,—that both parties have done what neither intended. A mistake on one side may be ground for rescinding, but not for reforming, a contract. Where the minds of the parties have not met, there is no contract to be rectified. May on Insurance, sec. 566, and note; Kerr on Fraud and Mistake, 409, 423, 422; Pomeroy on Contracts, sec. 251; Hearn v. Insurance Co. 20 Wall. 488; Sutherland v. Sutherland, 69 Ill. 488; Emery v. Mohler, id 221; Bishop v. Insurance Co. 49 Conn. 167; Mead v. Insurance Co. 64 N. Y. 456; Wilson v. Byers, 77 Ill. 80.

      Where parties neglect to acquaint themselves with the terms of the instruments, although they have them in their possession for years, or where, having full and particular knowledge of the facts, they do not acquaint the other party of their existence, but lead such other party to infer the existence of a state of facts differing from the true state, relief can not be granted to the party so negligent where he does not show fraud or overreaching. Bishop v. Insurance Co. 49 Conn. 167; Belt v. Mehlen, 2 Cal. 159; Graves v. Insurance Co. 2 Cranch, 419; McDaniels v. Bank of Rutland, 29 Vt. 230; Kinnerty v. Phosphate Co. 21 S. C. 226; Robertson v. Smith, 11 Texas, 211.
    There is no pretense that proofs of loss were furnished, and this, unless waived, is a bar to the relief sought. 4 Wait’s Actions and Defenses, 78; May on Insurance, secs. 460, 465; Insurance Co. v. School Directors, 4 Bradw. 145; O’Reilly v. Insurance Co. 60 N. Y. 169.
    But there is no evidence of a waiver of the proofs of loss in this case. There was no general or other denial by the company of liability. The policy declares, in express terms, “no act or omission of the company, or any of its officers or agents, shall be deemed, construed or held a waiver of the foregoing provisions of the terms and conditions of this policy, nor any extension of time, etc., except it be a waiver or extension in express terms and in writing, signed by the president or secretary of the company,” and the adjuster, by his letter of January 13, 1887, expressly declared the company, had not waived the proofs, but then called for them. Therefore, _the statement of Fisher, that the adjuster would come and adjust the loss, was not a waiver. May on Insurance, sec. 471; Insurance Co. v. School Directors, 4 Bradw. 145; Insurance Co. v. Conover, 98 Pa. St. 384; Walsh v. Insurance Co. 73 N. Y. 5 ; Van Allen v. Insurance Co. 64 id. 469; Marvin v. Insurance Co. 85 id. 278; 39 Am. Rep. 657; Steen v. Insurance Co. 89 N. Y. 315.

      Messrs. Pinero & Selby, for the appellees:
    Equity interferes in cases of written agreements, where there has been an innocent omission, or insertion of a material stipulation contrary to the intention of the parties. Stone v. Hale, 52 Am. Dec. 187.
    Mistakes in contracts may be shown by parol. Gillespie v. Moon, 7 Am. Dec. 563.
    In law, the written instrument contains the true agreement of parties. But equity has a broader jurisdiction, and will open the written contract to let in an equity arising from facts perfectly distinct from the sense and construction of the instrument itself. Gillespie v. Moon, 7 Am. Dec. 562.
    Equity will relieve in case of mistake in drawing a life policy. (Parsons v. Hosmer, 1 Am. Dec. 58.) Yet if the company led the assured into a mistake which would operate as a fraud on his rights, if he were thereby deprived of the benefits intended by the policy, and the complainant being, by such mistake, deprived of his remedy at law, we think he has a right to resort to a court in chancery for relief. Harris v. Insurance Co. 51 Am. Dec. 449.
    A contract made under a mistake, or in ignorance of a material fact, is relievable in equity. Miles v. Stevens, 45 Am. Dec. 634, and cases quoted therein.
    Equity will relieve against mistake at law in drawing an instrument, so as to make it conform to the plain intention of the parties. Evarts v. Strode’s Admrs. 38 Am. Dec. 744; Norris v. Insurance Co. 2 id. 365.
    The company’s refusal to pay obviates proof of loss. Pennell v. Insurance Co. 73 Ill. 303; Insurance Co. v. Cary, 83 id. 457; Insurance Co. v. Whitehill, 25 id. 470; Insurance Co. v. Maguire, 51 id. 342.
    If the proof was insufficient, all irregularities were waived by failing to point out the objections. Insurance Co. v. Dunmore, 75 Ill. 16; Insurance Co. v. Schueller, 60 id. 465; Inswr-

      anee Co. v. Harmer, 59 Am. Dec. 685; Insurance Co. v. Lewis, 18 Ill. 560; Insurance Co. v. Rogers, 119 id. 487.
    Notice to agent is notice to the company. Insurance Co. v. Wells, 89 Ill. 82.
    The adjuster refusing to pay on account that the property was not in the name of the owner in the policy, would estop the company from demanding proofs. Grange Mill Co. v. Western Association Co. 118 Ill. 401.
   Mr. Justice Craig

delivered the opinion of the Court:

If the contracting parties to a policy of insurance make a mistake in the description of the premises, or in the names of the insured, a court of equity, upon proper proof, has jurisdiction to reform the contract and correct the mistake, as held in Keith v. Globe Ins. Co. 52 Ill. 518, and Home Ins. Co. of Texas v. Myer, 93 id. 271. Here, the land upon which the house was located was described as being in section 5, instead of section 20. The parties never owned or pretended to own land in section 5, and-had no intention of insuring a house in that section. The intention of Fisher, the agent of the insurance company, and the intention of Gueck, who was acting for the complainants, was to insure the house which Fisher had erected in section 20 for Mrs. Wilhelmina Gueck, and the evidence leaves no room for doubt, that by mutual mistake section 5 was written in the policy, when the intention was to-write section 20 therein.

As respects the other question,—that the policy was issued to Fred Gueck when the intention was to issue it to and in the name of the complainants,—we think this finding in the decree may be regarded as sustained by the evidence. Gueck had no interest in the property insured, and never claimed any interest therein. What reason could he have for taking a policy in his own name when he had no insurable interest, in the property ? Moreover, he testified that he transacted the business for the complainants; that he never read the policies, but intrusted the whole matter to Fisher, the agent, to make out the policies correctly. The widow testified that she could not read English, and could read but little German; that her husband brought the policies home and put them in a drawer. She supposed they were all right, and never read them. Fisher says that he understood, from the conversation with Gueck, that he owned the property; but in view of the other facts disclosed by the record, he is entirely mistaken. He built the house for the widow and heirs, and at the time knew they owned the property. Moreover, he was assessor of the county, and assessed the land upon which the house was built as property belonging to the estate of Fiedler. From these facts, he could not be mistaken in regard to the ownership of the property. It may'be conceded that a court of equity might not interpose to correct a mistake unless the mistake was a mutual one, emanating from both the contracting parties; but upon giving due weight to all the evidence, we are inclined to hold that the court was justified in finding that the policy, by mistake of the parties, misdescribed the premises upon which the house insured was erected, and in finding that the policy was issued in the name of Gueck by mistake.

It is also claimed that the decree was erroneous on the ground that the insured failed to make proof of loss. There was no question here in regard to the value of the property destroyed, nor in reference to the loss being an honest one. Indeed, the only ground upon which the company predicated its refusal to pay the loss was, that Gueck, in wliose name the policy issued, had no interest in the property insured. This case falls clearly within the ruling in Grange Mill Co. v. Western Assurance Co. 118 Ill. 396, where it was held, proof of loss under a policy of insurance is waived when the company places its refusal to pay solely on the ground that the assured had no title or insurable interest in the property destroyed.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.