author: Mr. Justice Bailey

text:
    The Continental Insurance Company v. Stephen Ruckman.

      Filed at Mt. Vernon January 26, 1889.

      1. Insurance—proofs of loss—waiver of defects therein. Where proof of loss has been served upon and retained by the insurance company, without objection, and the company refuses to pay the loss, placing its refusal upon some ground other than defects in the proof, any further performance of the condition in the policy in relation to proofs will be regarded as waived, and the company will be estopped, in an action on its policy, from making any formal objections to the proofs.
    2. Same—insurance agents—general agents—of their powers, and who so considered. General agents of an insurance company, in the matter of settling contracts of insurance and issuing policies, will be presumed to have competent authority to stipulate for the insertion in the policy, that the building insured may remain vacant and unoccupied for a prescribed time. As to the exercise of powers within the apparent purview of their agency, the company will be bound by their acts, unless there were, in fact, limitations upon their authority, of which the assured had notice.
    3. Where a foreign insurance company appoints A and B its local agents in a particular locality, and supplies them with blank policies properly signed by the company, which such agents are authorized to fill up, countersign and deliver to the assured, this will constitute them general agents of the company in the matter of soliciting and accepting risks, agreeing upon and settling the terms of insurance, and carrying the same into effect by issuing the policies.

      4. Same—limitation in policy, as to powers of agent—construed. A clause in a policy of insurance, that “it is further understood and made a part of this contract, that the agent of this company has no authority to waive, modify or strike from this policy any of its printed conditions,” does not operate as a limitation of the agent’s authority in agreeing upon and settling the terms of the contract. It is a limitation upon the powers of the agent to waive, modify or strike from the policy, when once made, any of its printed conditions. There can be no waiver of rights under a contract until the contract is consummated. Before a blank policy is filled and signed and delivered, the agent may change the printed conditions therein.
    5. Same—acts of sub-agent—how far considered the acts of the general agent. An insurance company appointed A and B its general agents in effecting insurance and issuing policies, and they employed one C to assist them, and to solicit applications for insurance. 0 did their general office work, kept the books of the firm, conducted their correspondence, received the premiums paid at the office, and filled up policies, all except countersigning. When C negotiated a policy to a person he expected to call for it, he would so inform the firm, and a blank policy, duly countersigned, would be left with him, to be by him filled up and delivered. The employment of 0 by the firm, and the general nature of his duties, were known to the general State agents of the company. 0 contracted with D to insure leased property, and agreed to insert in the policy a clause that a failure to keep the buildings thereon occupied thirty days or less should not defeat the policy. 0 filled a blank printed policy, countersigned by A, but failed to insert such a clause, and delivered to D a policy which did not allow the premises to become vacant and unoccupied: Held, that the acts of 0, the sub-agent, would be regarded as the acts of A and B, the general agents, and the contract made in respect of D’s insurance was within the authority of the general agents, and that a court of equity would reform the policy in accordance with the verbal contract.
    6. Same—notice to assured—by limitations in the policy as to powers of agenis. An agent of an insurance company promised the assured to deliver to him a policy containing a provision that the property might become vacant and unoccupied thirty days, but not longer, but the agent gave a policy containing a stipulation that if the premises were suffered to be unoccupied, the policy should be void, telling the assured that the policy did contain a provision such as had been agreed upon. The policy contained a notice that agents had no right to waive, modify or strike out of it any of its printed conditions. The assured never saw any of the blank policies before, and could not read. It was held doubtful whether the delivery of the policy was notice of its contents, in view of the inability of the assured to read, and the agent’s assurance that the policy was drafted in accordance with the contract.

      7. Same—-foreign companies—powers of their agents—subject to legislative control—the statute construed. The General Assembly having power to impose upon foreign insurance companies coming into'this State to do business, such reasonable terms and conditions as it may deem proper, it has an undoubted right to make such companies responsible, not only for the acts of those who are in fact their agents, but of those who assume to act as their agents, and aid them in transacting their business.
    8. Section 23 of the act in relation to insurance companies, provides “that the term ‘agent’ or ‘agents,’ used in this section, shall include an acknowledged agent, surveyor, broker, or other person or persons who shall, in any manner, aid in transacting the business of any insurance company not incorporated by the laws of this State.” The intention of the statute is to make such companies responsible, not only for the acts of its acknowledged agents, etc., but also for the acts of all other persons who in any manner aid in the transaction of their business.
    9. No doubt, the mere assumption of authority to act for an insurance company will not, of itself, charge the company with responsibility for the acts of the assumed agent. The company must in some way avail itself of such acts, so that the person performing them may be said to aid the company in its insurance business.
    Appeal from the Appellate Court for the Fourth District;—■ heard in that court on appeal from the Circuit Court of Madison county; the Hon. W. H. Snyder, Judge, presiding.
    Messrs. Baker, McNulty & Baker, for the appellant:
    While a general insurance agent may often appoint sub-agents, a local insurance agent can not delegate his authority or appoint sub-agents when the exercise of judgment or discretion is required. May on Insurance, (1st ed.) sec. 126; Rankle v. Insurance Co. 6 Fed. Rep. 143; Lynn v. Burgoyne, 13 B. Mon. 400; McClure v. Iron Co. 4 Mo. App. 148; Bank v. Norton, 1 Hill. 501; Summers v. Insurance Co. 6 Can. 19; Enos v. Insurance Co. 15 Law Ins. J. 139.
    A notice, real or constructive, of limitation of an agent’s powers, will estop the assured from alleging acts in excess of such power. A notice of such limitation in the policy is sufficient. Meserau v. Insurance Co. 66 N. Y. 274; Trustees v. Insurance Co. 19 id. 305; Catoix v. Insurance Co. 33 N. J. 487.

      Where the act is in excess of the real authority of the agent, the burden is on the insured to show it was within the apparent scope of his authority. That authority is not to be assumed from the mere declarations of the agent. Bush v. Insurance Co. 63 N. Y. 531; Allen v. Ogden, 1 Washb. 174; Insurance Co. v. Rowell, 52 Barb. 270; Perkins v. Insurance Co. 4 Cow. 645; Miller v. Insurance Co. 27 Iowa, 203; Ewell’s Evans on Agency, 106; 34 La. Ann. 63.
    An agency can not be proved by the mere declaration of a party claiming to be an agent, where the fact of agency is in issue. Proctor v. Tows, 115 Ill. 138.
    Messrs. Wise & Davis, for the appellee:
    Local agents of foreign insurance companies, who have power to insure, issue and deliver policies, and collect premiums, are clothe'd with all the powers of a general agent,—certainly so far as the public are concerned. Whipple & Smiley, possessing such powers, were general agents, and had the right to appoint Milne to solicit and procure insurance, and his acts are binding on the- company. Lightbody v. Insurance Co. 23 Wend. 18; Veile v. Insurance Co. 28 Iowa, 9; Insurance Co. v. Kennie, 28 Gratt. 88; Insurance Co. v. Gookey, 33 Ohio St. 647; Insurance Co. v. Maguire, 51 Ill. 342.
    Harry Milne had the right to make the contract, so far as appellee was concerned. The maxim, delegatus non potest delegare, has no application in this case. Insurance Co. v. Fahrenkrug, 68 Ill. 463; Bodine v. Insurance Co. 51 N. Y. 123; Lingufeller v. Insurance Co. 19 Mo. App. 252; Cooke v. Insurance Co. 7 Daley, 155; Rossiter v. Assurance Association, 27 Beav. 397.
    Under section 23 of the act regulating foreign insurance companies, (Starr & Curtis, p. 1322,) Milne was an agent of the company. Shosner v. Insurance Co. 50 Wis. 575; Alkan v. Insurance Co. 53 id. 136; Knox v. Insurance Co. 50 id. 671; Body v. Insurance Co. 63 id. 157; Bennett v. Insurance Co. 70 Iowa, 600; Lamb v. Lamb, 6 Biss. 420; Fad v. Insurance Co. 6 Bush, 133; Pierce v. People, 106 Ill. 11.
    Milne was permitted to solicit insurance, make contracts, fill up policies, deliver them, and collect premiums, in his dealings with the public. The public had a right to presume his acts bound the company. Presumed powers are not to be narrowed by limitation not communicated to the person dealing with him. Insurance Co. v. Chestnut, 50 Ill. 111; Insurance Co. v. Maguire, 51 id. 342; Lightbody v. Insurance Co. 23 Wend. 18; Merchants' Bank v. State Bank, 10 Wall. 644; Insurance Co. v. Kelly, 24 Ohio St. 345.
    Although provision 6 in the policy provides that any person, other than the duly commissioned agent of this company, who may procure insurance, shall be deemed the agent of the assured, and not of the company, yet Milne, having acted for the company in procuring the insurance, is to be deemed the agent of the company, regardless of said provision in the policy. Insurance Co. v. Ives, 56 Ill. 402; Insurance Co. v. Chipp, 93 id. 100; Pierce v. People, 106 id. 22; Insurance Co. v. Sammons, 110 id. 166.
    If the proofs of loss were not technically sufficient, yet the company, by retaining them, and writing the insured that it refused to pay because the property was vacant when destroyed by fire, stops the company from urging this point. Suppiger v. Benefit Association, 20 Bradw. 595; Insurance Co. v. Whitehill, 25 Ill. 466; Insurance Co. v. Walsh, 54 id. 164; Insurance Co. v. Tucker, 92 id. 64.
   Mr. Justice Bailey

delivered the opinion of the Court:

This was a bill in chancery, brought by Stephen Buckman against the Continental Insurance Company of the city of New York, praying for the reformation of a policy of insurance, and for a decree for the amount of the complainant’s loss and damage by fire to the property insured. The policy in question bore date March 24, 1884, and insured the complainant, for the term of three years, against loss or damage by fire, in the sum of $100 on his one-story, frame, shingle-roof dwelling house, and $600 on his log barn, situate in St. Charles county, Missouri. The following facts shown by the complainant’s evidence are in no way contradicted:

The policy was obtained by the complainant from the defendant through the agency of one Milne, an employe of Whipple & Smiley, the defendant’s local agents at Alton, Illinois. On the day next prior to the date of the policy, Milne came to the complainant at his place in St. Charles county, Missouri, and solicited said insurance. The complainant expressed a willingness to take out a policy on said buildings, but told Milne that he expected to have them rented, and that sometimes they might be vacant five, ten or fifteen days, and asked him if that would make any difference with the insurance. Milne assured him that if they did not remain vacant to exceed thirty days, the insurance would not be affected, and agreed that the policy should so provide, but that if the vacancy should continue for a longer period, it would be necessary for the complainant to notify the company and get a permit for a further period of thirty days. On these terms the complainant agreed to take the policy. The next day he went to the office of Whipple & Smiley for the policy and found Milne there alone, no other person being in the office. Milne thereupon took a blank policy, filled it up and delivered it to the complainant, and received from him the premium. The complainant is an illiterate man, not being able to read or write, and that fact was known to Milne at the time he filled up and delivered the policy. On receiving it, the complainant asked Milne whether the clause in relation to the vacancy of the buildings was in it and was told by him that it was, and the complainant had no knowledge that the contrary was the fact until after the destruction of the buildings by fire.

In point of fact the condition agreed upon was not in the policy, but among its conditions was one providing that if the buildings insured became unoccupied without the consent of the company indorsed thereon, the policy should be void. A tenant who went into possession March 1,1885, continued to occupy the premises, using the house for a dwelling and the barn for keeping therein his domestic animals, his hay and other personal property, until October 21,1886, at which date he moved out of the house leaving it unoccupied, and moved into another house about a quarter of a mile distant therefrom. On the first day of November, 1886, the house and barn were both destroyed by fire, the house at that time remaining unoccupied, the former tenant, however, still retaining the key to -the barn, which he kept locked, and having therein a load of hay, a hay frame, twelve bushels of potatoes and some lumber. Proofs of loss were furnished by the complainant to the insurance company showing that the house was unoccupied at the date of the loss, and the defendant thereupon refused to pay the loss, basing its refusal upon the alleged breach of the condition of the policy relating to the occupancy of the buildings. i

The cause was heard on pleadings and proofs and a decree rendered reforming the policy by inserting therein a provision that the buildings insured might remain vacant and unoccupied thirty days, but no longer, without notice to the defendant, and also decreeing that the defendant pay the co.mplainant, within ten days, the sum of, $1049.50, with legal interest thereon from the date of the decree, together with costs of suit, and that in default of such payment, execution issue therefor. From this decree the defendant appealed to the Appellate Court where said decree was affirmed, and by a further appeal the defendant has brought the record to this court.

It is urged as a ground for the reversal of the decree that the complainant failed to perform the condition of the policy in relation to preliminary proofs of loss. It is not disputed that proofs w'ere served consisting of a statement in relation to the circumstances of the loss made by the complainant under oath, and a certificate by a justice of the peace residing, in the vicinity of the buildings destroyed. It may be that these proofs failed in some particulars to answer all the requirements of the policy, but whether they did or not is wholly immaterial, since the defendant, on receiving the proofs, instead of pointing out the deficiencies therein and requiring a further statement and certificate, refused to pay the loss, placing its refusal wholly upon the ground that the condition prohibiting a vacancy of the buildings without notice and consent had been broken. Where proofs of loss are served and retained by the insurance company without objection, and the company refuses to pay the loss, placing its refusal upon some ground other than defects in the proofs, any further performance of the condition in relation to proofs is waived, and the company is estopped,' when sued on its policy for the loss, to make any formal objections to the proofs. Lycoming Fire Ins. Co. v. Dunmore, 75 Ill. 14; Williamsburgh City Fire Ins. Co. v. Cary, 83 id. 453; German Ins. Co. v. Ward, 90 id. 550; Phœnix Ins. Co. v. Tucker, 92 id. 64; Grange Mill Co. v. Western Assurance Co. 118 id. 396; Scammon v. Commercial Ins. Co. 20 Ill. App. 500.

The ground, however, for a reversal of the decree upon which reliance is chiefly placed by the defendant is, that Milne wras not the defendant’s agent, and had no authority to stipulate on its behalf for a clause in the policy permitting 'the buildings insured to become and remain vacfant and unoccupied for thirty days without invalidating the insurance. ■ The contention is that Milne was merely an agent or employe of Whipple & Smiley, and that the maxim delegatus non potest delegare applies. Whipple & Smiley, though representing their principal in a particular locality or within a limited ‘territory, and therefore called local agents, were in fact general agents of the defendant in the matter of issuing policies. They were not only appointed agents, but supplied with blank policies properly signed by the company, which they were authorized to fill up, countersign and deliver to the assured. The rule is well established that this constituted them the general agents of the insurers in the matter of soliciting and accepting risks, agreeing upon and settling the terms of insurance, and carrying the same into effect by issuing the policies. Pitney v. Glens Falls Ins. Co. 65 N. Y. 6; Georgia Home Ins. Co. Kinnier's Admx. 28 Grat. 88; Viele v. Germania Ins. Co. 26 Iowa, 9; Carroll v. Charter Oak Ins. Co. 40 Barb. 292; Ætna Ins. Co. v. Maguire, 51 Ill. 342; May on Insurance, sec. 126.

Whipple & Smiley, possessing as they did the powers of general agents in the matter of making contracts of insurance and issuing policies, will be presumed to have possessed competent authority to stipulate for the insertion in the insurance contract with the complainant of the clause in question relating to the occupancy of the buildings to be insured. Such stipulation was clearly within the apparent purview of their agency, and unless there were limitations upon their authority of which the complainant had notice at the time the contract was made, the defendant can not now set up want of authority in them.

But it is said that the complainant was notified by the terms of the policy which he received that no agent of the insurance company had authority to enter into a contract of insurance upon any other terms or conditions than those embodied in the blank policies furnished by the defendant to Whipple & Smiley. Those blanks it is true contained the following condition: “It is further understood and made a part of this contract that the agent of this company has no authority to waive, modify or strike from this policy any of its printed conditions.” That this clause can not have the effect here contended for is apparent from either of two considerations. At the time the contract of insurance was agreed upon, which was the day next prior to the delivery of the policy, the complainant, so far as the evidence shows, had no notice that any such clause was contained in the company’s blanks. And it is doubtful whether even the delivery of the policy to him was notice of its contents, Avhen that fact is taken in connection with his inability to read it, and Milne’s assurance that it was drafted in accordance with the contract. The other reason is, that the clause above quoted, when the printed conditions of the policy are subjected to the strict rule of interpretation which properly applies to them, neither is nor purports to be a limitation upon the power of the company's agents in agreeing upon and settling the terms of the contract of insurance. It is a limitation upon powers of agents to waive, modify or strike from the policy any of its printed conditions. A waiver is the voluntary yielding up by a party of some existing right, but until the contract is consummated, the company has no rights which are susceptible of waiver, nor can any condition be properly said to be modified or stricken from a policy until there is a policy, that is, until after the terms of the contract have been agreed upon and the policy issued. Clearly the clause in question was intended as a limitation upon the powers of agents to waive or modify the terms of a policy after it had been issued, and not upon their power to agree upon and settle the terms of the policy prior to its issue.

Whipple & Smiley being general agents, could they employ Milne to perform the duties of their agency and make his acts binding on the defendant ? The facts are that Whipple was a gentleman advanced in years who gave but little attention to the duties of the agency. Smiley was an employe in the Alton Rational Bank, and during banking hours his ‘duties usually required his attendance at the bank. Under these circumstances Milne was employed by the firm to assist them in their insurance business. He did the general office work, kept the books of the firm, conducted their correspondence, received the premiums paid at the office and to some extent collected those which Avere paid elsewhere, filled up policies all except countersigning, and the evidence tends to show that whenever he could, he acted as solicitor for the firm in procuring insurance, and that when he had negotiated a policy with any particular person and expected him to call for it, he would so inform the firm, and a blank policy duly countersigned would be left with him to be by him filled up and delivered. The employment of Milne by the firm and the general nature of his duties seem to have been known to the defendant, as the defendant’s State agent is shown to have frequently .visited the office of the firm while Milne was in its employ.

As to whether under these circumstances general agents -can delegate their authority so as to bind their principal by the acts of their sub-agent, the authorities are not altogether agreed. The position taken by defendant’s counsel which is entitled to most consideration is, that agents to whom is committed duties which require the exercise of judgment and discretion can not delegate their authority, for the reason that such agency is from its nature personal, the principal having contracted for the personal skill and judgment of the agents selected. In support of this view we are cited to a very able discussion in McClure v. Mississippi Valley Ins. Co. 4 Mo. App. 148, where it is held that a general agent with power to issue policies of insurance, the signing and delivery of which involve passing upon the character of risks, and consequently call for the exercise of discretion and judgment, can not delegate his powers as such agent to another.

Without expressing any dissent from the doctrine of that decision and others which take a similar view, we are of the opinion that the present case falls within a quite different rule. In that case the question was whether any valid policy had been issued by the defendant to the plaintiff. The acts there challenged as having been performed by virtue of a delegated authority embraced the passing upon the character and desirability of the risk and its acceptance on behalf of the insurer, acts clearly involving the exercise of discretion and judgment. In the present case no question is raised as to the validity of the policy as issued. No fault is found with the character of the risk, nor is the validity of Milne’s acts hy which it was accepted and the policy executed in any way challenged. The defendant received the premium and keeps it, and proceeds upon the assumption that the policy was properly issued and correctly embraces the terms of a valid contract of insurance with the complainant. The defense is based solely upon an alleged breach of one of the conditions of the policy, and the question raised involving a consideration of Milne’s authority to hind the defendant relates merely to the clause as to the occupancy of the buildings which he agreed to insert in the policy. We have to determine then whether Whipple & Smiley could properly delegate their authority to Milne to that extent only, no other question as to the delegation of their authority being in issue. We are unable to see that this was a matter specially calling for the exercise of discretion or judgment. The complainant’s buildings, so far as the question of non-occupancy was concerned, differed in no material respect from all other buildings similarly situated.

The case comes more nearly within the principle of Bodine v. Exchange Fire Ins. Co. 51 N. Y. 117. There the original policy provided that n© insurance, original or continued, should be binding until the actual payment of the premium. The defense was based upon the non-payment of the premium upon a renewal receipt, and the plaintiff’s claim was that the clerk of the insurance agent who delivered to him the receipt waived the prepayment of the premium. The only question was as to the authority of the clerk to make such waiver. He was the son of the insurance agent, and had for several years been assisting his father in his insurance business, among other things, hy procuring policies and renewal receipts from the company and delivering them to the insured. In various cases, including the one in question, he had, with the presumed consent and authority of his father, waived the prepayment of premiums. Such delegation of authority was held. to be proper, upon the principle that the act of the clerk was the act of the agent, binding on the company just as effectually as if it were done by the agent in person. The doctrine of the foregoing case was cited with approval by this court in Eclectic Life Ins. Co. v. Fahrenkrug, 68 Ill. 463. See also Lingenfelter v. Phœnix Ins. Co. 19 Mo. App. 252.

In the present case the act of Milne by which he agreed to insert in the policy the clause in question relating to the non-occupancy of the buildings may be regarded as the act of Whipple & Smiley, and therefore binding on the company the same as though they had made the agreement themselves. The fact that they knew nothing of the agreement and gave no actual assent to it is immaterial, so long as it was wdthin the apparent purview of their powers as agents, and also within the apparent purview of Milne’s employment as their clerk and assistant.

But there is another and we think a conclusive reason why the agreement of Milne must be held to be binding on the defendant. The defendant is an insurance company organized under the laws of the State of New York, and doing business by its agents in this State under and by virtue of our statute in relation to such companies. The twenty-third section of the statute in relation to fire insurance companies, after fixing and defining the terms and conditions upon which insurance companies organized under the laws of other States may take risks or transact insurance business by their agent or agents in this State, provides as follows : “The term agent or agents used in this section shall include an acknowledged agent, surveyor, broker, or any other person or persons who shall, in any manner, aid in transacting the insurance business of any insurance company not incorporated by the laws of this State.” 1 Starr & Curtis’ Stat. 1322. The General Assembly having power to impose upon foreign insurance companies coming into this State to do business such reasonable terms and conditions as it saw fit, had an undoubted right to make such companies responsible, not only for the acts of those who are in fact their agents, but of those who assume to act as their agents and in fact aid them in the transaction of their insurance business. That such was the intention of the statute seems too plain to admit of doubt. We placed this construction upon said statute in People v. People’s Ins. Exchange, 126 Ill. 466.

Similar statutes have been upheld in other States and have there received the same construction we are disposed to place upon our own. A statute of Wisconsin provided^ that whoever solicited insurance on behalf of an insurance company, or máde any contract of insurance, or in any manner aided or assisted in making such contract, or transacted any business for the company should be held to be an agent of such company to all intents and purposes. In Schomer v. Hekla Fire Ins. Co. 50 Wis. 575, the court, in construing said statute, say : “The obvious intention of the legislature is, to make an insurance company responsible for the acts of the person who assumes really to represent and act for it in these particulars, and to change the rule of law that the insured must at his peril know whether the person with whom he is dealing has the power he assumes to exercise, or is acting within the scope of his authority.” Said statute was upheld and the same construction adhered to in Knox v. Lycoming Fire Ins. Co. 50 Wis. 671, Alkan v. New Hampshire Ins. Co. 53 id. 136, and Body v. Hartford Fire Ins. Co. 63 id. 157.

A statute of Iowa provided that any person who should solicit insurance or procure applications therefor should be held to be the soliciting agent of the insurance company. In Bennett v. Council Bluffs Ins. Co. 70 Iowa, 600, it appeared that an agent of the company who had authority to solicit insurance and issue policies, sent his clerk to solicit a risk and take an application, and the clerk knew that there was other insurance on the property, but the agent, who was ignorant of such other insurance, issued a policy and collected the premium, ancl it was held that the company was bound by the knowledge of the agent’s clerk, who, for the purposes of that policy, must, by virtue of the provisions of the statute, be regarded as the company’s soliciting agent.

An attempt is made to distinguish our statute from those considered and cohstrued in the cases above cited, because of the use'of the word “acknowledged” in the phrase “acknowledged agent, surveyor, broker, or any other person or persons who shall in any manner aid in transacting the insurance business of. any insurance company,” etc. The contention is that the word “acknowledged” qualifies the entire clause, and that the statute therefore applies to no person who is not acknowledged by the insurance company as having authority to act for it in its insurance business.. It is sufficient to say that the construction contended for is so forced and unnatural as not to possess even the virtue of plausibility. It would render the statute impotent and unmeaning by limiting its operation to those who would be agents of insurance companies without it. The manifest intention was, to make such companies responsible for the acts not only of its acknowledged agents, etc., but also of all other persons who in any manner aid in the transaction of their insurance 'business. Nor do we see anything inequitable or oppressive in such provision. Doubtless the mere assumption of authority to act for an insurance company will not of itself charge the company with responsibility for the acts of the assumed agent. The company must in some way avail itself of such acts, so that the person performing them may be said to aid the company in its insurance business. • But after a company has availed itself of the acts of an assumed agent and thus adopted them as its own, there is nothing oppressive in assuming, as against such company, the existence of the relation of principal and agent, and charging the company with responsibility for such acts.

We are of the opinion that the circuit court properly decreed a reformation of the policy, and the property insured having been destroyed by fire, it was also proper for the court to enter a decree in favor of the complainant for the amount of his loss. We find no error in the record, and the judgment of the Appellate Court will therefore be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Sheldon Per Curiam :

license: Public Domain

text:
    The Coal Run Coal Company v. Mary Jones, Admx.

      Filed at Ottawa November 13, 1886

      Re-adopted and filed January 25, 1889.

    1. Negligence—dangerous occupation—Imown to employe. If a workman, knowing there is danger in doing any certain kind or job of work, voluntarily undertakes to do such work, and voluntarily places himself in a known place of danger, no damages can be recovered for injuries or death occasioned thereby.
    2. Same—of am instruction—not applicable to the facts. In an action by the administrator of a deceased miner, against a mining company, to recover for causing the death of the intestate through negligence, it is error to instruct the jury, for the plaintiff, that it was the duty of the defendant to cause the mine to be examined every morning with a safety lamx>, by a competent person, to ascertain if fire-damp was present, and to cause to be provided suitable means of signaling between the top and bottom of the mine, where such failure of duty in no way contributed to the accident which caused the death. Such an instruction has no proper application to the facts.
    3. Mabbiage—of a second marriage—presumption in favor of its legality. Where a man’s second marriage is shown in fact, the law raises a strong presumption in favor of its legality, which is not overcome by mere proof of a prior marriage, and that the first wife is living and had not obtained a divorce. The husband may have obtained a divorce, and thus left him free to marry again.
    4. Instructions—complicated, confused and argumentative. An instruction which is unnecessarily lengthy, involved, confusing, argumentative, and contains one-sided recitals of evidence, is objectionable and erroneous.

      Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of La Salle county; the Hon. George W. Stipp, Judge, presiding.
    Mr. Walter Reeves, and Messrs. Bull, Straw & Ruger, for the appellant.
    Messrs. Fowler Bros., and Mr. J. B. Rice, for the appellee.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This is an appeal from a judgment of affirmance by the Appellate Court for the Second District, of a judgment for recovery of damages, in an action brought by Mary Jones, as administratrix of the estate of Thomas D. Jones, (whose widow she claims to be,) in the circuit court of La Salle county, to recover for loss in the means of support of herself and children, occasioned by the death of said Thomas D. Jones, which, she averred, was caused by the negligence of appellant, the Coal Run Coal Company.

The decedent’s death occurred undér the following circumstances : Appellant owned a tract of land near Streator, Illinois, upon which it sunk a shaft, some years ago, to the depth of fifty-three feet, to a stratum of coal underlying the same. This stratum of coal it worked out, and then abandoned the shaft and mine. The coal miners entered and withdrew from the mine through a slope extending from the surface to this stratum of coal. A year or two after abandoning its said shaft and mine, appellant sunk or continued the same shaft a short distance further, and struck another stratum of coal, but this second stratum proved to be unprofitable "to work, and thereupon the company abandoned this new mine and the shaft or pit, and it remained abandoned for nearly a year. Appellant becoming satisfied that there was a still lower stratum of coal, resolved to sink a shaft to such lower stratum for the purpose of opening up a coal mine therein. On the 19th day of November, 1883, the work of opening the new mine in the lower stratum, a distance of about one hundred and eighty-five feet from the surface, had progressed so far, that the persons employed for that purpose had sunk the shaft down to and a short distance below this stratum, and, commencing at the bottom, had timbered the shaft up to the upper stratum, about fifty-three feet from the surface. As the shaft was being sunk, the workmen constructed a temporary partition in the center of the shaft, for the purpose of creating a circulation of air. The air coming in through the old slope, struck one side of this temporary partition fifty-three feet below the surface, passed down that side and up on the other, making a current of air around the lower end of the partition, the side down which the air passed being called the “down cast,” and the "other side the “up cast.” There was but one partition put in for this temporary purpose, but in timbering up, two were constructed, so as to divide the shaft into three compartments,—one to be used for ventilation, and two for lowering and hoisting cages. In timbering up the shaft, it was divided into sections, and a platform erected across the shaft for the men to stand upon while doing this work, and when the permanent timbering and partitions were completed as high above the platform as the men could conveniently work therefrom, the old platform was removed, and a new platform erected higher up, and another section of the temporary partition removed. There was left a space of six inches at both ends of the platform, but the necessary removal of the temporary partition for the construction of the permanent one, cut off the circulation below the platform, for the air coming down the “down cast” would seek the first break in the partition to pass into the “up cast.” The shaft -was making some gas, which originated in the lower stratum of coal. This was known to the workmen, as they lighted it, and worked thereby while sinking the shaft. The accident that resulted in Jones’ death occurred on the 19th of November, 1883. He had been engaged in the work of timboring this shaft two days before the accident. When he commenced work, the timbering had not been completed as high up as the upper stratum, but on the morning of the accident a new platform was erected across the shaft, similar to those that had been erected below, and the men were engaged in work at this platform at the time of the accident. The platform was erected with a space of about six inches at both ends of the shaft, left for the purpose of permitting the gas that might arise from below, to pass up and out of the shaft. While at work at this platform, the old slope connected with this upper stratum was used as a “down cast,” and was ample for furnishing air. The shaft above was used for the “up cast.” The quantity of air was so great as to cause the miners’ lighted lamps to flicker. As soon as the gas passed above the platform and came in contact with the air being supplied through the “down east” or old slope, it became diluted and would not ignite, but below the platform it was dangerous. Jones had been at work some two or three hours, on the morning of the accident, when he tapped his lamp on the toe of his boot, and brought the flames of the lamp in contact with the gas flowing upward from beneath the platform, the result whereof was an explosion, which caused his death.

The second instruction given for the plaintiff informed the jury, among other things, that it was the duty of the defendant “to cause the said mine to be examined every morning with a safety lamp, by a competent person, to ascertain if fire-damp is present in said mine, and to cause suitable means of signaling between the top and bottom of said mine.” These are requirements of section 6, chapter 93, of the Revised Statutes of 1874, and of section 4 as amended by the amendatory act of June 21, 1883, (Laws of 1883, p. 114,) the amendment requiring: “And in all mines where fire-damp is generated, every working place where such fire-damp is known to exist shall be examined every morning with a safety lamp, by a competent person, before any other persons are allowed to enter.” The point is made, that the whole subject of this legislation relates only to “opened and worked mines,” and not to the sinking and completion of a shaft, which is only preparatory to the opening up and working of the mine or stratum of coal. But waiving this, and conceding that this was a mine within the meaning of the statute, there was no proper application of these statutory provisions in this case. The gas was being generated at the bottom of the shaft,—not at the “working place” where the accident occurred. This was well known, and it would have been of no use to have examined this place with a safety lamp in the morning. The men having worked at the place with their open lamps some two or three hours before the accident occurred, showed that the failure to examine the place with a safety lamp in the morning in no manner contributed to the accident, for if the safety lamp had been used, no good effect would have resulted therefrom. The proof shows that a means of signaling from the bottom to the top of the shaft was provided, but there was no Iverson below the scaffold to signal, as there was no occasion there should be, there being no one at work below the platform. Failure to comply with these statutory provisions, we consider, in no way contributed to the accident, and the instruction, in this respect, had no proper application to the facts of the case. Its tendency was to confuse and mislead the jury, and it should not have been given.

The nineteenth instruction asked by the defendant was as follows:

“19. The jury are further instructed, that if they believe, from the evidence, that the said Thomas D. Jones, deceased, erected, or helped to erect, or had knowledge of the way in which the platform on which he stood was erected at the time the accident which resulted in his death occurred, and also had full knowledge of the fact that explosive gas was being generated below said platform in said shaft in dangerous quantity, then-and in that case, if the said Jones voluntarily went upon said platform to work, and did not ask for other material or apparatus with which to protect himself from danger, then and in that case, under the law, the said Jones took upon himself the risk of danger incurred by going onto said platform to work, and if, while so engaged at work on said platform, he lost his life by the explosion of said gas so known by him to be generating below said platform in dangerous quantity, then and in that case the defendant would not be liable for damages on account of said death, and the jury should find for the defendant, the law being, that if a workman knows there is danger in doing a certain kind or job of work, and he voluntarily undertakes to do such work, and voluntarily places himself in such danger, no damages can be recovered for injuries or death occasioned thereby.”

The court added to the instruction the following modification : “But if the jury believe, from the evidence, that J ones went upon the platform of the defendant by the request of and under the employment of the defendant, and that before Jones went upon said platform, the defendant, or its agents, told and informed Jones that the shaft was safe from explosive gases, and that Jones had reason to believe that said shaft was safe, as the defendant had informed him, then the said Jones did not go upon said platform voluntarily, in the sense that word is used in the nineteenth instruction for defendant,” —and, as thus modified, gave the instruction, to which the defendant excepted.

It is objected to this modification that it is not based upon any evidence in the case. Hillier, who was engaged by the company to do the work on the shaft and to employ men for the purpose, and was the man who employed J ones, testified that Jones was a man of experience as a miner, and that was the reason why he selected him; that the matter of gas was talked over between them; they knew it was making a little gas; the question with them all was to be careful not to get the lights down too low, or to get them where the gas was; that they knew there was gas there, but didn’t expect there was any more coming from there but what was passing away through the platform. And on cross-examination he said: “When Jones came to me to work we talked about the gas. He was a man that was acquainted with gas. I believe it was the night before he came to work we spoke first about this gas. Don’t know that any one was present but ourselves. Were talking about gas in the shaft. He thought there would not be any danger at all, with care. I told him I thought so too.” This was the only witness who testified on this subject. This being substantially all the evidence in the record of what transpired in relation to Jones’ employment, we regard the objection well taken to the modification of the instruction,— that it was without basis in the evidence, and should not have been given.

The first and second instructions given for plaintiff, each one of which occupies two and a half pages of counsel’s brief, are objectionable for their length, as being involved, confusing, argumentative, and containing a one-sided recital of evidence. This kind of instructions has been frequently condemned by this court.

The exclusion of the testimony of the witness Mary Evans, from the jury, is assigned for error. There was proof of the marriage of the plaintiff, Mary Jones, to Thomas D. Jones, the decedent, on February 19, 1875, in the county of LaSalle, in this State, and that she had four children by said Thomas D. Jones, as the result of the marriage. The witness Mary Evans testified that she was married to Thomas D. Jones on November 16, 1867, at Mountain Ash, in Wales; that Jones deserted her, and she subsequently married a man by the name of Evans, with whom she has since resided as his wife; that she had never been divorced from Jones, and did not know whether Jones had been divorced from her or not. This evidence was excluded. It was contended it should have been received, as showing that Mary Evans, and not the plaintiff, was the lawful widow of Thomas D. Jones, and that the facts of this case distinguish it from Conant v. Griffin, 48 Ill. 410, where there was an attempt to show that another one than the plaintiff there was the true widow of the deceased, and it was held that which one was the true widow was immaterial; that the fact would only become important when the administrator was called upon to make distribution. It is claimed that here it is important which one is the true widow, as Mary Evans, by her conduct, had absolved the deceased from any legal liability for her support, and that she had sustained no pecuniary injury by his death. However this may be, we think the evidence was properly excluded, as not showing the invalidity of the second marriage' of Jones. The second marriage being shown in fact, the law raises a strong presumption in favor of its legality, which we do not regard as overcome by mere proof of a prior marriage, and that the first wife had not obtained a divorce. (See Johnson v. Johnson, 114 Ill. 617.) The husband might have obtained such divorce and left him free to contract the second marriage.

For the errors which have been indicated, the judgments of the Appellate and circuit courts will be reversed, and the cause remanded to the circuit court.

Judgment reversed.

Per Curiam :

After the foregoing opinion was adopted and filed, a rehearing was granted, and the cause was under consideration when Mr. Justice Sheldon retired from the court. After a further examination of the case by the court, as now constituted, we think that the conclusion already reached is correct. The opinion of Mr. Justice Sheldon is, therefore, re-adopted, and the judgment is reversed and the cause remanded.


author: Mr. Justice Shops

text:
    The People ex rel. Charles E. Barber, Collector, v. Francis M. Chapman.

      Filed at Ottawa January 25, 1889.

    1. Special assessments—practice—demurrer to objections—its effect, as an admission. The practice of demurring to objections to the application of the county collector for judgment against delinquent lands for unpaid special assessments, is not approved. The party filing objections must sustain them by proof, and they are not admitted to be true by demurrer.
    2. Dbainage law—classification of lands benefited—time and place to object. Under the Drainage law of 1885, entitled “An act to provide drainage for agricultural and sanitary" purposes,” etc., the objection that the drainage commissioners failed to classify certain lands within the drainage district, and indicate thereby whether such were or were not benefited, comes too late on application for judgment for unpaid special assessments. Such an objection should be made to the commissioners, and if not allowed, the objector should appeal.
    3. The act gives each land owner ample opportunity to be heard before the drainage commissioners, in relation to the classification of lands to be benefited; and such board has full power to grant relief by correcting any errors therein, and it gives such owners the right, of appeal from the decision of the commissioners upon their objection, to three supervisors, who are invested with power to correct any error shown to exist in the classification. This remedy is exclusive, and if the party fails to pursue it, he will have no other redress.
    4. Same—notice—as to time and place for hearing objections. In the absence of proof to the contrary, it will be presumed that the owners of land in a drainage district were served with notice of the action of the drainage commissioners, as required by section 27 of the act of 1885, and of the time and place for hearing objections, and that they appeared before the commissioners at such time and place. If an owner fails to appear and object, he will be held to have waived all objection to their action.
    5. Same—but one notice necessary. After the drainage commissioners have once obtained jurisdiction by service of notice,- no other notice is required as to any further steps taken by them in the way of subsequent assessments, but the land owner will be required to take notice thereof, the same as a party in a suit at law.

      Appeal from the County Court of Iroquois county.
    Mr. E. W. Hilscheb, and Messrs. Habéis & Hooper, for the appellant:
    The act of 1885, under which this proceeding was had, does not require notice of the filing of the assessment roll. The classification under section 21 was before made, and it must be presumed that notices were then served as required, and no notice was required of the several subsequent steps.
    The objection that lands benefited were omitted from the classification and tax list, is not good unless accompanied with an allegation of fraud. Elliott v. Chicago, 48 Ill. 293; Spencer v. People, 68 id. 510; Moore v. People ex rel. 106 id. 576.
    It is a question for the commissioners to determine, what lands shall be classified and what benefits they receive. They having determined these questions under a statute giving them full authority to act upon these questions, and their decision being unappealed from and unreversed, must be considered as final in this proceeding. Cases last above cited, and People ex rel. v. Brislin, 80 Ill. 423.
    Messrs. Kay & Euans, for the appellee:
    Under section 27 of the act of 1885, the land owner may appeal from any assessment, but upon the ground, only, that such tax is a greater amount than the benefits to accrue to the land by the proposed drainage.
    In making a second or third assessment, the previous assessments should be considered, and if the aggregate amount of such previous assessments equals or exceeds the benefits to accrue to the land, then such additional assessment should not be made. (Commissioners v. Kelsey, 120 Ill. 482.) The assessment complained of is the second.
    We contend the land'owner should have notice of the filing •of each assessment list. Without such notice how is he to know when the assessment is made and filed ?—:and without such knowledge the right of appeal conferred by statute is barren. That notice must be given, we refer to the following authorities: Eddy v. People, 15 Ill. 386; Commissioners of Highways v. Claire, 15 Johns. 537; Railroad Co. v. Warner, 61 Ill. 52.
    It would have been too late to object in the county court if appellee had had notice of the assessment in time to take his appeal. Lehmer v. People, 80 Ill. 601.
    There is a distinction between a tax and an assessment for special benefits, where the party has had notice. (Riverside Co. v. Howell, 113 Ill. 256, and cases there cited.) Such proceedings are not conclusive unless the party appeared. If notice should, under the statute, have been given, and was not, and there was no appeal taken or appearance entered, then such assessment is void. Kidder v. City of Peoria, 29 Ill. 77; Skinner v. Lake View Avenue Co. 57 id. 151.
   Mr. Justice Shops

delivered the opinion of the Court:

This appeal brings before us the record of the judgment of the county court of Iroquois county, rendered on the application of the county collector of that county for judgment against delinquent lands and lots for taxes, special assessments, etc., due thereon. A drainage district was organized in that county, under the Drainage act of 1885, embracing certain lands of appellee, upon which two special assessments appear to have been made, the second of which, only, is involved in this case. The second assessment was made pursuant to a resolution of the drainage commissioners, and not having been paid by appellee, the proper return was made of the assessment roll and of the special assessment thereon remaining unpaid, and application by the county collector was made for judgment against appellee’s land so delinquent. Appellee appeared in the county court, and objected to the rendering of judgment against his lands for such special assessment, upon the ground that the drainage district included lands which the commissioners had neither classified nor assessed for benefits, and in respect of which they had in no way indicated whether such lands were or were not benefited; that the lands referred to were not included in the petition for the organization of the district, but were brought into the district by the commissioners, at the time the district was organized, for the reason that such lands would be benefited by the contemplated drainage; and upon the further ground, that the second assessment was made, and the assessment roll filed with the town clerk, without notice to appellee, and that appellee did not, in fact, learn of the assessment until some days after the time of appeal therefrom had expired; and because the lands not classified and assessed were greatly benefited by the drainage of the district, and should therefore have been assessed, and that by the failure of the commissioners in this regard, appellee’s lands were assessed more than their proportionate share of the sum required to be raised. A demurrer was interposed to the objections, and, under stipulation that no question of fact should be raised on the hearing, the legal sufficiency of the objections was considered, which resulted in the overruling of the demurrer and the rendition of a judgment abating the special assessment against the lands of appellee. The People, upon the relation of the collector, appealed to this court.

The practice of demurring to objections interposed to the application of the county collector for judgment against de-' linquent lands, etc., for unpaid special assessments, has been condemned by this court. It was said in Enos v. City of Springfield, 113 Ill. 65: “We are aware of no statute or well settled practice which authorizes a demurrer to be filed in such a case. Where objections are filed in such a case, it is incumbent on the party-filing them to sustain them by proof, unless they appear on the record. We are not inclined to sustain a practice which will admit the truth of every objection which may be filed, however frivolous, although a demurrer may be interposed to the objection.”

As respects the first objection,—namely, the omission of the drainage commissioners to classify certain lands within the drainage district, and their failure thereby to indicate whether such lands were or were not benefited,—we are of opinion the objection came too late. The twenty-first section of the act provides the manner in which the commissioners shall classify the lands within the drainage district, and that when estahfished and properly tabulated, or shown by a map, such classification shall be filed in the office of the town clerk, for inspection, and “shall remain as a basis for such levy of taxes as may be needed for the lawful and proper purposes of the drainage district.” But by the twenty-fourth section provision is made for personally serving “upon all parties owning lands to be affected by the proposed work, * * * and residing in the county, a written or printed notice of the time when and place where they” (the drainage commissioners) “will meet to hear any and all' objections that may be made to the classification of lands on the graduated scale,” etc. Assuming, as we must, that appellee was served with the notice, as required by this section, and the commissioners being, by the next section of the act, authorized and required, at the time and place mentioned in such notice, to “hear whatever objections may he urged by any person interested,” and to correct any injustice shown to exist in such classification, appellee must be presumed to have appeared before the commissioners at the time they were sitting in review of their classification of the lands within this district, and to have then objected to any injustice to him by reason of such classification; and if appellee failed to so appear and object, he must he held to have waived all objection to the action of the commissioners relating to such classification. The law gave him ample opportunity to he heard touching the classification of the lands, before a tribunal with ample power to afford him relief. It required him to be notified in time to interpose any objections he might hfive thereto. The law also gave him the right of appeal from the decision of the commissioners upon his objections, todhree supervisors, who were invested with power to correct any error-shown to exist in the classification. Thus the rights of the property owner, in respect to the classification of lands within the district, are fully and perfectly protected; and if the property owner neglects to avail himself of the right of redressing any wrong and of correcting any error and injustice, he ought not to be heard to complain at another time and in another forum. The case here presented presents a striking analogy to the right of a property owner to have the assessment of his property for general taxation reviewed by the town board and afterwards by the county board, and no reason is perceived why the same rule should not govern in both eases.

The .objection" that appellee was not notified of the resolution and order of the commissioners making these special assessments, and of the making and filing of the assessment roll, and did not, in fact, learn of the same until the time allowed by the statute for an appeal therefrom had expired, is most strenuously insisted upon. It would "seem to be a sufficient answer to this contention to say, that the statute does not require such notice to be given. The better answer, perhaps, is, that no reason is perceived why such a notice should be given. From the time the drainage commissioners assume to exercise the powers conferred on them, and which is to result in the levying of a special drainage assessment, the proceedings may not inaptly be likened to a suit in court. The commissioners, as a first step, make a classification of the lands; the property owners are then brought before them by notice,—residents by personal service, and non-residents by publication; and the succeeding steps to be taken, both by the property owner and by the commissioners, follow in regular progression, and without unnecessary delay. And for the same reason that a party over whose person the court has acquired jurisdiction is required to take notice of the different steps taken in his cause, the property owner in a drainage district who has been notified of the classification of the lands, must also be required to take notice of each succeeding step taken by the commissioners to effect the object for which the district has been organized.

If, therefore, we assume, as did the county court, that the effect of the demurrer and stipulation of the parties was to admit as true, without proof, the facts disclosed in the objections of appellee, they constituted no legal objection to the assessment upon the lands of appellee then delinquent, and it was error for the court to sustain them and abate the tax.

The judgment of the county court is therefore reversed, and the cause remanded for further proceedings.

Judgment reversed. •


text:
    Edward Wilson, Conservator, v. Magdalena Scoville et al.

      Filed at Springfield January 21, 1889.

    1. Appeal—certificate of importance—whether necessary—and within what time to he given. Where the amount involved in a suit is less than $1000, no appeal lies from the Appellate to the Supreme Court, except upon the certificate of the judges of the Appellate Court that the case is of such importance, on account of direct or collateral interests, that it should be passed upon by this court; and such certificate is a condition precedent to the perfecting of an appeal. This court will not, therefore, continue a cause brought before it by appeal from the Appellate Court, to enable the appellant to procure such certificate.
    2. The Appellate Court has jurisdiction to grant a certificate of importance only for the period during which an appeal can be taken,— that is, twenty days after the entry of judgment.

      Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Fulton county; the Hon. John C. Bagby, Judge, presiding.
    Mr. H. W. Masters, and Mr. D. Abbott, for the appellant.
    Messrs. Barrere & Grant, and Mr. J. W. Bantz, for the appellees.
   Mr. Justice Bailey

delivered the opinion of the Court:

This is a motion by the appellant for a continuance for the purjiose of enabling him to obtain from the judges of the Appellate Court a certificate that the case is of such importance, on account of direct or collateral interests that it should be passed upon by this court. It is admitted that the amount involved is less than $1000, and that the case is not otherwise one of which this court can have jurisdiction without such certificate. We think the motion must be denied for two reasons. First, such certificate is a condition precedent to perfecting an appeal, and if it were granted now, ex post facto, it would not have the effect to validate an appeal which has already been improvidently taken. Second, if this were otherwise, the judgment of the Appellate Court was rendered on the 25th day of May last, and as we have held in MacLachlan v. McLaughlin, 126 Ill. 427, the Appellate Court had jurisdiction to grant a certificate only for the period during which an appeal could be taken, that is twenty days after the entry of judgment. It is therefore now too late to apply to that court for a certificate, and a continuance for that purpose would be unavailing.

■ As it is apparent that this court has not and can not have jurisdiction, the appeal will be dismissed at the costs of the appellant, and leave is given him to withdraw the record for the purpose of returning it to the Appellate Court.

Motion denied.


author: Mr. Justice Scholfield

text:
    John Maloney et al. v. Edward Dewey et al.

      Filed at Ottawa January 25, 1889.

    1. Judgment oe decree—how far conclusive—generally. It is a general rule, that when it is once made to appear that a court has jurisdiction both of the subject matter and of the parties, the judgment or decree which it pronounces must be held conclusive and binding upon the parties thereto and their privies, notwithstanding the court may have proceeded irregularly, or erred in its application of the law in the case before it.
    2. Same—in case of an insame, person—how far a judgment or decree is conclusive—and herein, of the remedy as to a suit at law against an insane person. Where an insane person is properly brought before the court by personal service, the judgment or decree rendered against him will be valid and binding, and is said to be neither void nor voidable.
    3. Where a lunatic or insane person is sued at law, the proper remedy for the lunatic is to apply to a court of chancery to restrain the proceeding, and to compel the plaintiff to go there for justice. But a judgment against a lunatic, until set aside in chancery, or otherwise, is as valid and binding as any other judgment. It seems, however, that the mere fact of insanity, alone, is not a sufficient ground to set aside the judgment. It should further be shown that the judgment is inequitable.
    4. CONKtoOT of daws—jurisdiction of State courts to review the action of Federal courts. A decree of the United States Circuit Court for the foreclosure of a mortgage can not be set aside by the State courts on the ground of error in the proceedings not affecting the jurisdiction, and a redemption be allowed from the mortgage. An error in ordering a sale without allowing redemption will not divest the Federal court of jurisdiction. If there are any equitable grounds of relief against such decree, they must be presented to that court.
    5. So where a decree of strict foreclosure has been rendered in the Circuit Court of the United States against a lunatic or insane person, that court is the proper forum in which to apply for relief against the decree. The State courts have no power or authority to review, revise and correct such decree.
    6. Guardian ad ditem—who may act in that capacity. There is no statute or rule of law which requires that a person appointed as guardian ad litem shall be a solicitor, and the appointment of the clerk of the court as such will not render the decree a nullity in a collateral proceeding, or call for the setting aside of the final decree.
    7. Same—ira the case of an insane person—the statute construed. The provision of section 6 of the Chancery Code, that in any cause in equity it shall be lawful for the court to appoint a guardian ad litem to any insane defendant in such cause, is not made jurisdictional, and can have no application where a conservator has been appointed, and is acting, or when the complainant has no knowledge of the insanity.
    8. Same—errors of guardian ad litem—whether affecting jurisdiction. The acts of a guardian ad litem, after appointment, may be erroneous, but however much so, they can not be held to relate back and divest the court of the jurisdiction which authorized it to make the appointment.
    9. Allegations and proofs — bill to impeach a decree confined to objections therein stated. A bill to impeach a decree of a circuit court of the United States will be confined to the grounds stated therein, and where objections to the decree are urged, but not stated in the bill, they will be disregarded.
    10. Parties—in chancery—bill against a lunatic. After inquisition, and the appointment of a conservator for a lunatic, a party filing a bill to enforce the contracts of the lunatic should make the conservator a party; but until such appointment, it is competent to commence suit against the lunatic. The complainant is not bound to ascertain the mental capacity of the defendant before he can bring suit.
    Writ óe Error to the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Edward Dewey obtained a decree in the Circuit Court of the United States for the Northern District of Illinois, in a certain cause,pending in that court wherein he was complainant, and John Maloney, William Maloney, John Maloney, Jr., Catherine Maloney, Charles E. Durand, John Mattocks, the city of Chicago and Isaac Tomlinson, were defendants, foreclosing a certain deed of trust on land alleged to have been owned by Mary Maloney, and deeded by her and her husband, John Maloney, in trust, to secure the indebtedness therein described. It was alleged in the bill that Mary Maloney died intestate before the filing of the bill, and that William Maloney, John Maloney, Jr., Catherine Maloney and Isaac Tomlinson, “have, or claim to have, some interest in the premises as heirs-at-law of Mary Maloney, or otherwise.” The property desorihed in the deed of trust was sold pursuant to the decree, and purchased by the complainant therein. The purchaser was let into possession, and he afterwards sold and conveyed the property purchased, to Sidney A. Kent and Albert E. Kent. The present bill was filed in the Superior Court of Cook county by John Maloney, John Maloney, Jr., and Catherine E. Kirby, against Dewey and the Kents, praying that the decrees, orders and proceedings of the United States Circuit Court, foreclosing the deed of trust, he adjudged to be void as to the said John Maloney, Jr., and William Maloney, that an account he taken of the amount due upon the deed of trust, and that they be let in to redeem, etc.
    It is, among other things, in substance, alleged in the bill, that John Maloney, Jr., was a minor when the decree of foreclosure was rendered; that the person named as guardian ad litem in the decree, and who answered for him as such, was then and still is clerk of the Circuit Court of the United States for the Northern District of Illinois, and that the laws of the United States prohibited him from doing any act as solicitor or counselor, and that, in fact, he did no act as solicitor or counselor for the defense of the rights and interests of John Maloney, Jr., and that such rights and interests were wholly unprotected in the suit; that William Maloney died on a date named, which is since the decree was rendered, leaving the complainants in the present bill his only heirs-at-law; that from a date named, which is long anterior to the filing of the bill for foreclosure, and thence until his death, he was insane, and that he was adjudged to be insane, and a conservator appointed by a competent tribunal, hut the date of this adjudication and appointment was subsequent to the service of the summons upon him. It is insisted that the proceedings in the cause, as against William Maloney, subsequent to the service of the summons upon him, were fraudulent and void, and it is alleged no day in court was given him to show cause against the granting of the decree; and it is finally alleged, that at the time of the filing of the bill to foreclose, no default had been made whereby any right had accrued to sell under the trust deed; that they have no knowledge as to the loan to secure which the trust deed was given, hut charge, that it was usurious. The court sustained a demurrer to the bill, and the record is brought to this court by error to that decree.
    Mr. Edwabd Eoby, and Mr. Thomas H. Gault, for the plaintiffs in error:
    The decree for sale and conveyance without redemption, was void. Brine v. Insurance Co. 96 IT. S. 627; Allis v. Insurance Co. 97 id. 144; Orvis v. Poioell, 98 id. 176; Railroad, Co. v. Fosdich, 106 id. 71; Swift v. Smith, 102 id. 442; People v. Cooper, 83 Ill. 595; Costner v. Walrod, id. 179.
    A judgment obtained by fraud is not conclusive, and equity may relieve against it. Pratt v. Northam, 5 Mason, 95; Buck v. Colbath, 3 Wall. 342; Gould v. Gould, 3 Story, 536; Contee v. Godfrey, 1 Cranch, 479.
    The plaintiff, knowing the defendant’s condition, and incapacity to defend, by imposing on the court, and selling the lunatic’s land, is guilty of the gravest fraud. Bryan v. Wash, 2 Gilm. 564.
    As the lunatic was not bound by the decree before his death, the right to redeem passed to his heirs.
    A judgment or decree fraudulently obtained may he attacked collaterally, or by bill to set the same aside. Adam’s Eq. *420; Loyd v. Malone, 23 Ill. 43; Johnson v. Johnson, 80 id. 215; Kuchenbeiser v. Beckert, 41 id. 172; Gooch v. Greene, 102 id, 510; Gould v. Gould, 8 Story, 536.
    Where a decree has been made against an infant or lunatic in a case where no guardian is appointed, an original bill, impeaching the decree for fraud, may be filed without leave of court, and the court must vacate the decree and put the parties in statu quo. Richmond v. Tayleur, 1 P. Wms. 737; Cooper’s Eq. 96, 97; 2 Daniell’s Ch. Pr. 1584.
    It will be enough for the infant or lunatic to say the decree was obtained by fraud and collusion, or that no day was given him to show cause against it. 1 P. Wms. 737.
    Infants, idiots and lunatics are incapable, by themselves, of defending a suit. Story’s Eq. Pl. see. 70; Bank v. Ritchie, 8 Pet. 143.
    The lunatic, if served with process, was powerless to answer, or to "confess the bill, or to attend before a master, or do anything to defend his rights. “Infants, idiots and lunatics are as incapable, by themselves, of defending, as they are of instituting, a suit.” Lord Bedesdale, p. 82; Cooper’s Eq. 31, 33, 109.
    The lunatic was gotten into court by process, but was tied hand and foot, so that he could not answer, or take any step whatever in the case. The decree is exactly parallel to that reviewed in Windsor v. McVeigh, 93 U. S. 277. See, also, Story’s Eq. Jur. secs. 222, 223, 227; Cooper’s Eq. 96; Mitford’s Pl. 73; 2 Daniell’s Ch. Pr. 584; 1 id. 176, 177.
    A proceeding where a defendant can not answer, and is not represented, is no judicial determination of his rights, any more than it would be if he had not been served with process. Gregory v. McVeigh, 23 Wall. 294; 93 U. S. 284; Windsor v. McVeigh, 93 id. 274; Loyd v. Malone, 23 Ill. 44; Johnson v. Johnson, 30 id. 215; Kuchenbeiser v. Beckert, 41 id. 172; Gould v. Gould, 3 Story, 536; Richmond v. Tayleur, 1 P. Wms. 737; Cooper’s Eq. 96, 97; 2 Daniell’s Ch. Pr. 1584.
    In Loyd v. Malone, and subsequent cases, the Illinois Supreme Court proclaimed its inclination to go to the full extent of the doctrine.
    Messrs. Mason Brothers, for the defendant in error Dewey:
    Except in cases of appellate jurisdiction from the State to the Federal courts, the courts of neither can have any right to interfere with or control the proceedings or process of the other, or revise its judgments. Taylor v. Carryl, 20 How. 597; In re Salisbury, 16 Ill. 351; Munson v. Harroun, 34 id. 424; Logan v. Lucas, 59 id. 238; Sproehnle v. Dietrich, 110 id. 202; Ritchie v. Pease, 114 id. 353; Wetherbee v. Fitch, 117 id. 67.
    The cases cited by plaintiffs do not authorize interference by State courts with decrees of Federal courts, or vice versa. Contee v. Godfrey, 1 Crunch, 479; Buck v. Colbath, 3 Wall. 342; Dupasseur v. Rochereau, 21 id. 130; Gregory v. McVeigh, 23 id. 294; Windsor v. McVeigh, 93 U. S. 274.
    The decrees of the United States court, when properly drawn in question, are entitled to the same respect, and must have the same effect, as though rendered by a State court of competent jurisdiction. Story on Conflict of Laws, (7th ed.) 754; Barney v. Patterson, 6 H. & J. 203; Niblett v. Scott, 4 La. Ann. 247.
    The judgment or decree of a sister State court, or of a circuit court of the United States, can not be attacked collaterally. Homer v. Fish, 1 Pick. 441; McRae v. Maltoon, 13 id. 58; Walker v. Robbins, 14 How. 584; Christmas v. Russell, 5 Wall. 306; Horton v. Critchfield, 18 Ill. 133; Dunbar v. Hallowell, 34 id. 170; Zepp v. Hager, 70 id. 226; Jones v. Warner, 81 id. 348; Munroe v. People, 102 id. 406; Story on Conflict-of Laws, 756, and eases cited; Dupasseur v. Rochereau, 21 Wall. 135.
    The Supreme Court of Illinois holds, positively, that such a decree can not be attacked in our courts because of the insanity of a defendant in the original suit. Hanna v. Read, 102 Ill. 608.
    Judgments or decrees against lunatics are neither voidable nor void.. Freeman bn Judgments, 152, and eases cited; Johnsons v. Pomeroy, 31 Ohio, 247; Tomlinsons v. Devore, 1 Gill, 347; Stigers v. Brent, 50 Md. 215; Wood v. Bayard, 63 Pa. St. 321.

      Even if the Superior Court had jurisdiction, no ease is made by the bill for the impeachment of the decree in question. There was no error in the proceedings. The demurrer admits only facts well pleaded, and no facts are well pleaded, in a case like this, which mistake the power of the court to grant relief and the right of the plaintiffs to bring the suit. Commercial Bank v. Buckner, 20 How. 108.
    No fraud is shown, and "there is no sufficient averment of fraud. Story’s Eq. Pl. (8th ed.) 426, 428; Daniell’s Ch. Pr. (4th ed.) 1574, and cases cited.
    The mere allegation of lunacy is entirely insufficient. Kerr on Frauds, 145; 1 Story’s Eq. Jur. secs. 199, 202, 236, 237; Shelford on Lunacy, 419, 429; Hull v. Warren, 9 Ves. 605; Fonblanque’s Eq. 46.
    The plaintiff’s only proper forum is the United States court which rendered the decree in question. Peck v. Jennies, 7 How. 624; Mason v. Piggott, 11 Ill. 89; Taylor v. Carryl, 20 How. 608; Mail v. Maxwell, 107 Ill. 554; Railroad Co. v. Railroad Co. Ill. U. S. 505; Kuppendorf v. Huse, 110 id. 276; Freeman v. Hove, 24 How. 458.
    Messrs. A. & C. B. McCoy, for the other defendants in error:
    The Kents being bona fide purchasers, the decree as to them should not be disturbed. Fergus v. Woodworth, 44 Ill. 374; Davis v. Gaines, 104 U. S. 386; Gray v. Brignardello, 1 Wall. 627.
    Although the judgment or decree may be reversed, yet all rights acquired at a judicial sale, while the decree or judgment was in full force, and which it authorized, will be protected. It is sufficient for the buyer to know that the court had jurisdiction and exercised it, and that the order, on the faith of which he purchased, was made, and authorized the sale. Ward v. Hollins, 14 Md. 158; Irwin v. Jeffers, 3 Ohio St. 389; Gossam v. Donaldson, 18 B. Mon. 230; McCullough v. Minor, 2 La. Ann. 466; Thompson v. Tolmie, 2 Pet. 157.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This bill attacks collaterally the validity of a decree of the Circuit Court of the United States. It alleges, for reasons hereafter to be noticed, that such decree is void, and therefore claims the right of those representing the makers of the trust deed, to redeem from it, just as if that decree had never been rendered. The general rule is, that where it is once made to appear that a court has jurisdiction, both of the subject matter and of the parties, the judgment or decree which it pronounces must be held conclusive and binding upon the parties thereto and their privies, notwithstanding the court may have proceeded irregularly, or erred in its application of the law in the ease before it. Cooley’s Const. Dim. (1st ed.) 408, et seq. There are cases which seem to be exceptional to this rule, but which, perhaps, are not, when rightly considered, where the court, although having jurisdiction of the person, and jurisdiction to adjudicate, when properly brought before it, upon the subject matter, renders a judgment not authorized by law in that class of cases, under any possible proofs,—as, for instance, in a common law case; a judgment without the verdict of a jury, there appearing to have been no waiver- by the parties in interest of the right to have a jury; a judgment punishing a party by imprisonment in the penitentiary, under an indictment for a riot, and a verdict of guilty thereunder. In such cases, it may, perhaps, in a technical sense, accurately enough, be said that the court has no jurisdiction of the subject matter of the particular judgment. But whether these cases fall strictly within the general rule, or form exceptions to it, can be of but little importance, in a practical point of view, so long as the grounds on which they rest are understood and kept in mind. They are not instances of mere misapplication of law to particular facts, or erroneous interpretation, of rules in particular cases, but they are attempts to exercise an authority which has no existence, in the particular case, under any possible state of proofs. See Windsor v. McVeigh, 93 U. S. 282; Lloyd v. Malone, 23 Ill. 43.

That there was jurisdiction in the United States Court to render the decree of foreclosure, the complainant being a citizen of Wisconsin, and the defendants citizens of this State, if there was jurisdiction of the defendants, is not denied; but it is contended, on behalf of plaintiffs in error, that there was not jurisdiction of the defendants, because, first, the summons that was issued was void, by reason of not being returnable at a day during the term at which it was issued; second, the guardian ad litem appointed for John Maloney, Jr., was clerk of the court, and therefore prohibited from practicing as a solicitor in chancery; third, William Maloney was insane at the time he was served with process and the decree was rendered; fourth, it does not appear that the summons was properly served.

The first and fourth objections are not based on any allegations in the bill, and should, on that ground, be disregarded. We will add, however, that, in our opinion, they would have been untenable if they had been alleged, because they are not sustained! by the record.

We are not aware of any statute, or ruling of any court, which requires that a guardian ad litem shall be a solicitor. Counsel for plaintiffs in error have called our attention to none, and in our opinion there are none. The acts of a guardian ad litem, after appointment, may be erroneous, but however much so, they can not be held to relate back, and divest the court of the personal jurisdiction which authorized it to make the appointment. After inquisition, and the appointment of a conservator for a lunatic, a party filing a bill to enforce the contracts of such lunatic should make the conservator a party. But until inquisition and the appointment of a conservator, it is competent to commence suit against the lunatic. The complainant is not bound to ascertain the mental capacity of the defendant, and have a conservator appointed, before he can bring suit. King v. Robinson, 33 Me. 114.

It is provided by section 6 of our Chancery Code, (Rev. Stat. 1874, p. 199,) “that in any cause in equity it shall be lawful for the court in which the cause is pending, to appoint a guardian ad litem to any * * * insane defendant in such cause,” etc. But this is not made jurisdictional, and, obviously, it can have no application where a conservator has been appointed, and is acting, or where the complainant had no knowledge of the' insanity. The record here shows that there was no inquisition and no appointment of a conservator until after the summons was served, and there is neither averment nor proof that Dewey had any knowledge of "William’s insanity before the decree was rendered.

It has been held, that where an insane person has been properly before the court, “acts done by matter of record, as, fines, recoveries, judgments, statutes, recognizances, etc., shall hind as well the idiot as he who becomes non compos mentis.” Beverly’s case, 4 Co. 123; Mansfield’s case, 12 id. 124; Fonbl. Eq. b. 1, c. 2, sec. 2, note k. See King v. Robinson, supra, at page 123.

It is said that judgments against lunatics are neither void nor voidable, (Freeman on Judgments, sec. 123,) and that the proper remedy for a lunatic is to apply to chancery to restrain the proceedings, and to compel the plaintiff to go there for justice. (Ibid.) So, also, the same author, in a note to Allison v. Taylor et al. 32 Am. Dec. 70, in speaking of a judgment against a lunatic, says: “Unless set aside in chancery, or by some other appropriate remedy, a judgment against a lunatic is of unquestionable validity. Lamprey v. Nudd, 9 Fost. 299; Wood v. Bayard, 63 Pa. St. 320; Foster v. Jones, 23 Ga. 168; Sacramento Savings Bank v. Spencer, 53 Cal. 737; Stigers v. Brent, 50 Md. 214; Johnson v. Pomeroy, 31 Ohio St. 247. If an attempt were made to vacate or enjoin such judgment in chancery, doubtless, the mere insanity of the judgment defendant would not be a sure guaranty of success. It would require the aid of other facts, from which the conclusion must follow that the judgment is inequitable and can not be executed without injustice.” But since, in this case, it is the decree of a court of chancery, and not the judgment of a court of law, that is affected by the insanity, the requisite equitable jurisdiction is in the same court, and that court has all the jurisdiction that any court can have to relieve against any harm resulting from the decree. The decisions in this State and in other States are numerous to the point, and hold that there is no authority in the courts of one State to review, or to revise and supplement and correct, the decrees of courts of other States or of the United States. Hanna et al. v. Read et al. 102 Ill. 596; Wetherbee v. Fitch, 117 id. 67; Ritchie v. Pease, 114 id. 353; Sproehnle v. Dietrich, 110 id. 202; Logan v. Lucas, 59 id. 238; Munson v. Harroun, 34 id. 422; In re Salisbury, 16 id. 351. Necessarily, therefore, if William Maloney was inj uriously affected by the decree, those representing him should have applied to the court rendering the decree, to open it, and let them in to be heard.

The objection is urged, that the decree rendered is erroneous, because it directs a sale without redemption. But that error does not divest the United States Circuit Court of jurisdiction of the case. The remedy is, to apply to that court. What effect that error might have were this a suit at law, and the claim were made that the deed from the master was void because of such error, we will not undertake to decide. But this is a proceeding in equity, to redeem from a deed of trust that a Federal court has foreclosed. Whether the decree is erroneous in respect of the order of sale, or not, can not affect the jurisdiction of that court to render final decree. If this decree should be reversed on review or error, that court would still have the exclusive jurisdiction to render final decree in the case, and necessarily, therefore, some other court could not have jurisdiction to render a decree that redemption under the deed of trust be allowed. The right of redemption is involved in the question of foreclosure. No decree can be rendered in such a case without passing upon it, and the court first obtaining jurisdiction to pass upon it must retain that jurisdiction to the end. Ex parte Jenkins, 2 Wall., Jr., C. C. 521; Wallace v. McConnell, 13 Pet. 151.

Other objections urged against the decree involve merely questions of erroneous rulings, unaffected by the question of jurisdiction, and can not therefore be considered in this collateral way.

The decree is affirmed.

Decree affirmed.


author: Mr. Justice Wilkin

text:
    A. W. Bulkley v. Anne M. Devine.

      Filed at Ottawa January 25, 1889.

    1. Lease—uncertainty in description of premises—cured by possession. A lessee, after having executed the lease, having taken possession under the contract and having paid rent under it, can not repudiate the lease merely because it does not definitely describe the demised premises.
    2. A leased to B premises in the city of Chicago, etc., “known and described as follows, to-wit, the house known and numbered as No. — Thirty-second street,” etc., at a rental of $35 per month, payable in advance, the term to begin January 1,1885, and end April 30,1886. B took possession of the house, and occupied the same till April 12, 1886, paying the rent thereof to the lessor until June 1,1885, and afterward to the assignee of the lessor up to the time he left, except for the month of August, 1885, which he refused to pay, claiming a set-off. On. suit by the assignee, the tenant resisted judgment, on the ground that the lease sued on was void for uncertainty in the description of the house leased: Held, that the possession of the tenant and use of the property leased had the legal effect of removing all uncertainty as to the property intended to be described.

      3. Paeol evidence—to identify subject matter of written, contract. Extrinsic proof is always competent to identify the subject matter of a contract, if necessary; and this in no way violates the rule that parol testimony is never admissible to contradict or vary the terms of a written contract. The admissibility of parol evidence, in such case, does not depend upon the distinction between patent and latent ambiguities.
    4. Ebbob will not always bevebse — admission of improper evidence. A judgment will not be reversed because improper evidence may have been admitted upon the trial, when it is apparent that the result must have been the- same had it been excluded.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Messrs. Weigley, Bulkley & Gray, for the appellant:
    The lease was absolutely void for uncertainty. Dingman v. Kelley, 7 Ind. 717; Kea v. Robeson, 5 Ired. Eq. 373; Ingram v. Little, 14 Ga. 182; Habblewhite v. McMorrine, 6 M. & W. 200; Jackson v. Titus, 2 Johns. 430; United States v. Nelson, 2 Broch. 64; Patterson v. Hubbard, 30 Ill. 201; Shackleford v. Bailey, 35 id. 387; Carter v. Barnes, 26 id. 455; Hughes v. Streeter, 24 id. 648; Taylor on Landlord and Tenant, sec. 160.
    Blanks in a sealed instrument can not be filled in, after its delivery, by another person except the grantor himself, under seal. Shep. Touchstone, 54; Ingram v. Little, 14 Ga. 182; Simms v. Henry, 19 Iowa, 297; Jackson v. Titus, 2 Johns. 430.
    Parol evidence is not admissible to change, alter, vary, modify or supply the defects in a written lease under seal. Jackson v. Goodyear, 12 Johns. 488; Otis v. Sill, 8 Barb. 122; Hayden v. Westcott, 11 Conn. 129; Dingman v. Kelley, 7 Ind. 717; Chapman v. McGrew, 20 Ill. 101; Loach v. Farnum, 90 id. 368; Barnett v. Barnes, 73 id. 216.
    If a person enters under a void lease, and pays rent, he is a tenant at will. Denn v. Fearnside, 1 Wils. 176; Huyser v. Chase, 13 Mich. 98; Doe v. Watts, 7 T. R. 83; Taylor on Landlord and Tenant, sec. 19.

      Messrs. Knickerbocker & Holdout, for the appellee:
    Blank spaces left in a contract may be filled up in accordance with the agreement of the parties. Chicago v. Gage, 95 Ill. 593; Whittaker v. Miller, 83 id. 385; Canon v. Grigsby, 116 id. 151; South Berwick v. Huntres, 53 Me. 89; Swartz v. Ballou, 47 Iowa, 188; Van Etta v. Evenson, 28 Wis. 33.
   Mr. Justice Wilkin

delivered the opinion of the Court:

The facts in this • case material to a consideration of the legal questions to be determined, are briefly as follows: On the 19th of December, 1884, appellant, as lessee, and one Murray, as lessor, made a contract, under seal, for the leasing of a dwelling house in Chicago, for a term to begin January 1, 1885, and ending April 30, 1886, at $35 per month,, payable monthly, in advance. The premises are described as being-in the city of Chicago, etc., “known and described as follows, to-wit: The house known and numbered as No.-Thirty-second street.” Appellant admits that he took possession of the house for the rent of which this suit is brought, and continued to occupy the same until April 12, 1886, paying rent to his lessor, according to the terms of said lease, until June 1, 1885, and from that date to the time he left the premises, to appellee, who then purchased the same and received an assignment of the lease, except for the month of August, 1885 ; that he refused to pay, claiming a set-off for repairs made on the premises, and hence this suit. It was begun before a justice of the peace on the 10th of said August. The justice of the peace gave judgment in appellee’s favor, but only for a nominal sum, and she appealed to the Superior Court, and there recovered the full amount claimed—'$35 and costs of suit. The Appellate Court affirmed the judgment of the Superior Court, but granted this further appeal, certifying that questions of law are involved, of such importance as that they should be passed upon by this court.

Appellant’s entire defense below was founded on the proposition, that the lease sued on was void.for uncertainty, because the number of the house was left blank in the description. He submitted fifteen propositions, which he requested the judge trying the case to hold as the law, all based on the theory that no recovery could be had under it,—all of which were refused. Unless the foregoing proposition can be maintained, all other questions raised by appellant must fall with it.

It is somewhat surprising that in the argument little or no importance is attached to the fact that appellant took possession of the house, held the same and paid rent therefor under the lease, the legal effect of which was to remove all uncertainty as to the property intended to be leased, as held in Princeton et al. v. Northern Illinois Railroad Co. 46 Ill. 297. The proposition is self-evident. On the undisputed facts, the defense is self-refuting. Can he, having executed the contract, taken possession under it, held possession and paid rent under it, both to his lessor and appellee, now repudiate that contract because it does not definitely describe the house ? Clearly not.

In this view of the case, the judgment of the Superior Court was the only one which could have been properly entered, and therefore whether the extrinsic parol evidence to aid the lease, or that which was relied upon as showing parol authority to fill the blank number, was properly admitted, is wholly immaterial. A judgment will not be reversed because improper evidence may have been admitted upon the trial, when it is apparent that the result must have been the same had it been excluded.

The parol evidence objected to, and which it is insisted was erroneously admitted, was introduced for the purpose of identifying the house intended by the parties when they executed the lease, and was competent for that purpose. Extrinsic proof is always competent to identify the subject matter of a contract, if necessary, and to admit it in no way violates the rule that parol testimony is never admissible to contradict or vary the terms of a written contract. 2 Parsons on Contracts, sec. 550.

In Ogilvie v. Fuljamb, 3 Meriv. 52, it is said: “The subject matter of the agreement is left, indeed, to be ascertained by extrinsic evidence, and for that purpose such proof may he received. The defendant speaks of Mrs. Ogilvie’s house, and agrees to give £14,000 for the premises, and parol evidence has always been admitted in such a case, to show what house and to what premises the treaty related.”

Numerous other authorities might be cited to the same effect, hut there is no exception to the rule. It is recognized and approved by this court in Colcord v. Alexander, 67 Ill. 581, Cornwell et al. v. Cornwell, 91 id. 414, Dougherty v. Purdy, 18 id. 206, and Clark v. Powers, 45 id. 284.

In the last two cases the uncertainty was held to be a latent ambiguity, hut by the same process of reasoning- adopted in the Dougherty case, the uncertainty here is also a latent ambiguity. The admissibility of parol proof in such case does not, however, depend upon the distinction between patent and latent ambiguities. 2 Parsons on Contracts, 560.

Whether the parol evidence admitted below goes to the extent of proving that the number (55) was inserted in the description by authority of appellant, or whether for that purpose it was competent, is unimportant. It was competent for the purpose, and did tend to make certain the property intended to be leased, and while, as we have said, it was wholly unnecessary to make out the case, it was not error to admit it.

Judgment affirmed.