text:
    The German Fire Insurance Company of Peoria v. William Grunert.

      Filed at Ottawa November 17, 1884.

    1. Agency—powers of a general agent. An agent, the principal being absent, having full charge, management and control of the business of the principal, must necessarily possess and exercise the same power and authority in' the business that his principal could, if present. A general agency, until revoked, is coextensive in scope and duration with the business.
    2. Same—power of general agent to sue for Ms principal. Where a principal is absent, his general agent, having sole authority to manage his business, will necessarily have authority to bring suits to collect debts, and insurance in case of loss by fee, such power being essential to an efficient discharge of his duties.
    3. Same—insurance—proof of loss by agent of assured. Where a policy of insurance requires the assured, within thirty days after any loss by fire, to furnish proofs of the same, signed and sworn to by him, the proof of loss should be so signed and sworn to, unless there is some legal excuse. His absence at the time of the loss, and failure to return in time, is a sufficient legal excuse, and in such case the proofs may be signed and verified by his agent having charge of his business.
    4. Insurance—proof of loss—waiver as to time. Where written notice and proof of loss are made out and delivered to the insurance company within the required time, by the .agent of the assured, the latter being absent from home, and the company returns the notice and proofs, with objections thereto, and they are amended by the agent and again delivered, and they are again sent back for amendment, which is made, and this is repeated several other times, this will be held a waiver by the company of the objection that such notice and proofs were not delivered in proper time.

      5. Same—of the signature and jurat to the proofs of loss. It was objected to certain proofs of loss that the signature and jurat thereto were insufficient, in that they showed a signature of William Grunert, the assured, “per Ernest Grunert, clerk and agent, ” and that Ernest Grunert, for William Grunert, made oath to the truth of the proofs. The objection was considered hypercritical. It appeared that Ernest Grunert, agent for William Grunert, signed and swore to the proofs, and that was sufficient.
    6. Same—waiver as to misrepresentations in the application. If an insurance company, after knowledge of the fact of misrepresentations by the assured in his application, demands of him that he make and deliver proofs of loss, it will, as a matter of law, be presumed to have waived any defence on accoufit of such misrepresentations.
    7. Pleading and evidence—matter in estoppel—whether it must he pleaded. Where the defendant in an action on an insurance policy pleads that plaintiff failed to furnish proof of loss in the time required, the latter may reply that such proof was waived; but such replication is not necessary to the admission of proof of such waiver. The doctrine of waiver in this connection is, in substance and effect, that of an estoppel in pais, and such estoppel, at common law, need not, although it might, be pleaded specially.
    8. Evidence—relevancy—as to custom of insurance company in relation to proportion of value insured. On the trial of a suit on a policy of insurance, the defendant’s secretary was asked to state upon what proportion of the total value of personal property his company grants insurance: Held, that the question was properly refused. What was, in fact, done in the case,— not what was usually done,—was important.
    9. Same-—question involving an opinion of witness. In the same case, the witness was asked, “You may state if, after the policy was issued by your company, you ascertained, at any time before or after the loss, that W. G., in his application for insurance, misrepresented the value of the property:” Held, that the question was improper, as calling for an opinion or conclusion of the witness from facts, instead of calling for the facts themselves.
    10. Instruction—submitting two questions. There is no error in the court modifying an instruction showing a right of forfeiture of an insurance policy for misrepresentation on the part of the assured, so as to make the right to insist on a forfeiture depend upon the fact whether such defence has not been waived. It is entirely proper, in such case, to submit the two questions,—the right to a forfeiture, and the waiver of that right,—in one instruction, when the evidence justifies it.
    11. Witness—impeachment. On the trial of an action on an insurance policy, a witness was asked whether the figures in an account of one D. S. corresponded in amount with the figures given the witness by the plaintiff’s agent in attempting to ascertain the amount of the loss, the attention of the witness not having been called to the matter, and made answer in reference thereto: Held, that the question was not proper.

      Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Peoria county; the Hon. N. M. Laws, Judge, presiding.
    Messrs. Stevens, Lee & Horton, for the appellant:
    The assured was the only person who could make and sweato the proof. Spooner v. Fire Ins. Co. 53 Vt. 153; Kernochen v. Fire Ins. Co. 17 N. Y. 433; Ayers v. Fire Ins. Co. 17 Iowa, 191; Welsh v. Fire Ins. Co. 54 Vt. 351; Smith v. Fire Ins. Co. 1 Allen, 297.
    The court erred in excluding the proposed evidence of the company’s secretary to show an over-valuation by the assured.
    Counsel also made various other points upon the evidence and the instructions of the court.
    Messrs. Cratty Bros., Fuller & Gallup, and Mr. George B. Foster, for the appellee:
    Proof of loss should be made as required by the policy, both as to substance and time, or a legal excuse shown therefor. It is a good excuse for not making the same by the assured, that he is a non-resident, dead, absent or insane at the time of the loss, etc. Wood on Fire Insurance, p. 693, sec. 413; Ayers v. Insurance Co. 17 Iowa, 176; Insurance Co. v. Grayville, 74 Pa. St. 17; O’Connor v. Insurance Co. 31 Wis. 160; Insurance Co. v. Adkinson, 3 Bush, 328; Sims v. Insurance Co. 47 Mo. 54.
    We submit that these proofs were full and sufficient, and made in time,—at least the objection as to them not having been made in time, was not made by the appellant, and may be considered waived. Wood on Fire Insurance, p. 715, sec. 417, and authorities cited.
    The original proof was shown, and it appeared that the agent of appellee had, in good faith, attempted to correct the same, and comply promptly with the requirements of the company. The proofs did not create the liability to pay the loss. All the elements of an estoppel in pais are wanting in them, if such is the claim of appellant’s counsel. The appellant did not rely on the proofs, and was not bound by them. They did not cause it to change its situation, or incur any liability by reason of them. On this point, see Wood on Fire Insurance, p. 736, sec. 427; McMasters v. Insurance Co. 55 N. Y. 222; Parmalee v. Fire Ins. Co. 54 id. 193; Insurance Co. v. Stevens, 48 Ill. 31.
    Counsel also made other points upon the facts, evidence and instructions.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

This is assumpsit on a policy of insurance issued by the German Fire Insurance Company of Peoria, to William Grunert, on a stock of groceries in Winchester, to recover for a loss which occurred by fire on the 8th of September, 1880.

A question in limine is, whether there is error in the ruling of the circuit court on a motion made by defendant to dismiss the action, on the ground that it was not brought by the plaintiff, but, on the contrary, was being prosecuted without his knowledge or authority. The motion was supported by an affidavit of defendant’s secretary, and an affidavit of Ernest Grunert, general agent of the plaintiff, was read in opposition to the motion. The court overruled the motion. We think this ruling was correct. The principal being out of the country, the general authority with which the agent was invested necessarily included authority to bring the suit. He had the sole management of the business; and authority to bring necessary suits to collect, and for insurance, in case of loss by fire, is indispensably incident to his general power, and essential to an efficient discharge of his duties.

The policy contains a clause requiring that the assured “shall forthwith give notice of any loss to the secretary of the company, and within thirty days after such loss shall deliver at the office of the company in Peoria, either personally, by agent, mail or express, a particular account of such loss, signed and sworn to by him, naming each article, and the cash value thereof,” etc. The defendant, among other things, pleaded that the assured did not, within thirty days after the loss complained of, or at any other time, deliver to the defendant such proof of loss, signed and sworn to by him. Upon the trial it was proved, on behalf of the plaintiff, that in the month of January or February, 1880, the plaintiff left Winchester for St. Louis, for the purpose of purchasing goods; that before leaving Winchester he put his brother, Ernest Grunert, in charge of his store and business, as clerk and agent, and that said Ernest Grunert thenceforth continued to act in that capacity until the stock was destroyed by fire on the 8th of September, 1880, and since then he has continued to act as business agent for the plaintiff; that the plaintiff never returned to Winchester from such trip, and his said agent has never been able to learn anything of him since his departure from Winchester on that trip.

The court, on behalf of the plaintiff, and over objection of the defendant, admitted in evidence certain proofs of loss, signed and sworn to by Ernest Grunert, clerk of William Grunert, and, also, thereupon instructed the jury as follows:

“The court instructs the jury, that if you believe, from the evidence, that William Grunert, the insured, was, at the time of the fire, (September 8, 1880,) absent from his home in Winchester, Illinois, and could not be found, so as to make proofs of the loss within the time specified by the policy, then, in that case, such proofs of loss could be made by the agent of the said William Grunert. ”

It is contended on behalf of the defendant, that the court erred in admitting this evidence and in thus instructing the jury. The ruling is sustained by authority, and is unobjectionable. If it should be held incorrect, it is plain upon no additional attainable evidence can there be a recovery on the policy, although in every other respect the evidence might be ample to maintain a recovery, for the signature and affidavit of the plaintiff to the proofs of loss were not and can not be obtained. It is said in Wood on Fire Insurance, p. 693, sec. 413: “Proofs of loss should be made as required by the policy, both as to substance and time, or a legal excuse shown therefor. They should be made either by the assured, his agent, or party in interest. If the assured does not make the proofs, a valid reason therefor should be shown; and it is sufficient to show that he is non-resident, dead, or was absent or insane at the time when the loss occurred, and did not return in time to make the proofs. ” See, also, cited in support of the text, Ayres v. Hartford Ins. Co. 17 Iowa, 176; Farmers’ Mutual Ins. Co. v. Grayville, 74 Pa. St. 17; O’Connor v. Hartford Fire Ins. Co. 31 Wis. 160; Northwestern Ins. Co. v. Adkinson, 3 Bush, (Ky.) 328; Sims v. State Ins. Co. 47 Mo. 54. The absence of the plaintiff, here, brings the case within the exception.

An objection is also urged on the ground that the signature and jurat to the proofs of loss are insufficient, in that they show a signature of William Grunert, “per Ernest Grunert, clerk and agent, ” and that Ernest Grunert, for William Grunert, makes oath to the truth of the proofs. The objection is hypercritical. It very clearly appears that Ernest Grunert, agent for William Grunert, signs and swears to the proofs, and this is sufficient.

The court also, at the further instance of the plaintiff, instructed the jury:

“If you find, from the evidence, that the defendant insurance company issued to the plaintiff the policy mentioned in the declaration in this case, and that while said policy of insurance was in full force and effect a portion of the property mentioned in and insured by said policy was, on Septenaher 8, 1880, destroyed by fire, while the same was the property of the plaintiff, and without the fault of the plaintiff, and that the plaintiff was absent at the time of such loss, and unable to make proof of the same, and that the agent of the plaintiff, who in the plaintiff’s absence had full charge, management and control of plaintiff’s business, and who had possession of the property insured by said policy, as such agent, in the absence of the plaintiff, made out and delivered to the defendant insurance company, on or before September 23, 1880, a written notice and proofs of loss, and that on September 23, 1880, the defendant returned such notice and proofs of loss, with objections thereto, and that the same agent of the plaintiff made out an amended notice and proofs .of loss, and delivered the same to the defendant insurance company, and that said defendant insurance company, on October 4, 1880, returned such amended notice and proofs of loss, with objections thereto, and that such notice and proofs of loss were again amended by the same agent of the plaintiff, and again delivered to said defendant, and that the defendant returned the same on the 8th day of October, 1880, and that said notice and proofs of loss were again amended by the same agent of the plaintiff, so that the same substantially complied with the conditions of said policy, and delivered the same to said defendant insurance company, and that on October 26, 1880, said defendant again returned said notice and proofs of loss, with objections thereto, and that said defendant, at none of the times it returned said notice and proofs of loss, objected that the plaintiff had not made out and delivered such notice and proofs of loss within the time mentioned and provided in said policy, then said defendant insurance company thereby waived all objections that said notice and proofs of loss were not delivered to said defendant within the time provided for in said policy; and if you further find, from the evidence, that plaintiff complied with all the other conditions of said policy, then you should find for the plaintiff. ”

It is contended there was error in the giving of this instruction,—firstly, for the same reason that was urged against the first instruction, and which we have just considered; secondly, because it does not tell the jury they must believe, from the evidence, that the agent was properly qualified to make the proofs of loss; thirdly, because of the confusion of dates as to when the proofs were sent and returned, as shown by the evidence; and fourthly, because it is directly put in issue by one of the special pleas whether the plaintiff did or did not furnish proofs of loss to thq defendant, at its office, within the time required by the policy, and the plaintiff did not reply to that plea that the defendant had waived such proofs.

The instruction must have been understood by the jury as relating to the character of agent which the evidence before them showed Ernest Grunert to be,—an agent, the principal being absent, having full charge, management and control of this business, (that of a retail grocer,) and possession of the property. This is the language of the instruction, and no one could be misled by it. Such an agent must necessarily possess and exercise the same power and authority in the business that the principal could, were he present; for, were it otherwise, the business, however well conducted, must soon terminate for lack of funds. The destruction by fire of the stock would destroy and terminate the agency. A general business, unlimited by special terms, would not thus terminate, and a general agency, until revoked, would be coextensive, in scope and duration, with the business. There is a slight mistake in one or more of the dates of the proofs of loss, but this is unimportant, and could not, in our opinion, have misled. Their dates, in that connection, are not of material consequence.

As to the plea that the plaintiff did not furnish proofs of loss, etc., it might, undoubtedly, have been replied that such proof was waived, etc.; but it was not indispensable that it should have been so replied, to authorize admission of the proof of waiver. The doctrine of waiver, in this connection, is, in substance and effect, that of estoppel in pais, (May on Insurance, sec. 605,) and estoppels in pais, at common law, need not, although they might, be pleaded specially. Bigelow on Estoppel, (1st ed.) 590; 2 Smith’s Leading Cases, Doe v. Oliver, Duchess of Kingston’s case, (7th Am. ed.) 658. Here, the evidence that plaintiff did not furnish proofs of loss within time, etc., is rebutted and overcome by evidence that such proofs were waived,—i. e., in legal effect the fact was admitted, and the proofs dispensed with. The estoppel assumes the plea is not sustained, and precludes further evidence. The legal conclusion is, the proofs were furnished within time, etc.; and this results from the evidence of waiver,—¡a fact or facts constituting an estoppel in pais.

The sixth instruction, given at the instance of the plaintiff, informs the jury that if they believe, from the evidence, that the defendant knew that any misrepresentations had been made by the assured in his application for a policy of insurance, herein sued upon, and after the knowledge of that fact demanded of plaintiff that he make and deliver proofs, of loss from the fire, then, in that case, as a matter of law the defendant will be presumed to have waived any defence it may have had by reason of said misrepresentations. Two objections are urged against this instruction: First, it is contended there is no evidence on which to base it; and second, that under the issue no question of waiver is involved. This second objection is answered in what has been said with reference to the last objection to the second instruction. The first objection we think not well taken. There was some evidence,—how much it is not our province to discuss,—on which to base it.

The defendant asked the court to instruct the jury:

“The jury are instructed that the plaintiff in this suit is bound by the terms and conditions of the policy of insurance introduced in evidence, so far as the same relate to him, and that by the terms of the policy the application of the plaintiff for insurance, which has been introduced in evidence, became, by the terms and conditions of the policy, a part of the policy and contract of insurance, and warranty by the plaintiff that any false over-valuation of property, or any misrepresentation whatever in said written application, or otherwise, should render the policy void and of no effect; and if you believe, from the evidence, that in said application the plaintiff falsely misrepresented the value of this property covered by the policy, with intent to deceive defendant, and did thereby deceive defendant, then you will find a verdict for the defendant. ”

The court refused to give the instruction as asked, but modified it by adding: “Unless you further believe, from the evidence, under the law, as explained in these instructions, that defendant has waived its right to have the policy forfeited on that ground. ” This modification, counsel insist, was erroneous, because specific reference is not made to the explanations in other instructions. We can not think the jury could have been misled by the modification. The doctrine of waiver, we have seen, was correctly laid down as applicable to the case, notwithstanding the pleadings, and this but calls the attention of the jury to that doctrine where and as laid down in other instructions.

Complaint is also made that the court erred in modifying this instruction:

“If the jury believe, from the evidence, that the plaintiff, in his application for insurance, made a false or untrue statement as to the value or ownership of the property insured, as an inducement to the company to enter into the contract of insurance, and that the company relied upon such statements, and was induced thereby to enter into such contract of insurance, then such contract is voidable, by its terms and conditions, by the company, and it can not he enforced against- it, and the verdict should be for the company. ”

The modification consisted in adding: “Unless you further believe, from the evidence, that defendant, after it had full knowledge of such representations, waived its right to .a forfeiture of said policy on that ground.” We see no objection to the modification. The defendant might waive its right, under the circumstances contemplated in the instruction, to a forfeiture, and it was competent to submit that question to the jury, and entirely proper to submit the two questions,—the right to_ a forfeiture, and the waiver of that right,—in one instruction.

The third instruction asked by defendant was properly refused, because it is but a mere argument on facts, and presents no legal proposition.

Objection is urged to the ruling of the court in refusing to allow certain questions propounded to witnesses upon the trial, to be answered. The question was asked, whether the figures in an account of one Daniel Smith corresponded in amount with figures given the witness.by Ernest Grunert, in attempting to ascertain the amount of the loss. The only purpose of this was to contradict Ernest Grunert. He had not previously had his attention called to this matter, and made answer in reference thereto. A witness can not be impeached in the mode thus sought to be pursued. Wagner, the defendant’s secretary, was asked: “You may state upon what proportion of the total value of personal property your company grants insurance.” We are unable to see any pertinent, legitimate conclusion to which the answer to this could lead. The suit is on a policy. What was here done,—not what was usually done,—was important. The answer could not tend to prove either the actual or the estimated value of the goods insured. Again, he xvas asked: “You may state if, after the policy was issued by your company, you ascertained, at any time before or after the loss, that William Grunert, in his application for insurance, misrepresented the value of the property.” Very clearly this called only for an opinion,—a conclusion from facts,—of the witness, and not a statement of facts. 'What William Grunert represented, should have first been proved, and it would then have been competent to prove facts contradictory of' that representation. Other questions immaterial and irrelevant were also asked the same witness, which we do not deem of sufficient importance to specially notice.

The questions of fact are settled against appellant by the judgment of the Appellate Court, and demand no notice from us.

We think the judgment below right, and it must therefore be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    J. H. Wade v. Town of La Moille.

      Filed at Ottawa September 27, 1884.

      1. Constitution—-when article prohibiting municipal aid to railway companies took effect. The separate article of the constitution of 1870 which forbids a municipal corporation from making a subscription or donation to a railroad or private corporation, having been submitted, with other separate articles, to a vote of the people, and adopted with the main body of the constitution, became a part of the organic law of the State from and after July 2, 1870, and a constituent part of the same eo inslanti.

    2. ' Municipal bonds—constitutional prohibition. Municipal bonds of a town were voted on August 6,1870, and issued in aid of a railroad corporation: Held, in a suit on the same, that all previous laws that had authorized municipal corporations to vote aid to railroad or other private corporations, by donation or subscription, had ceased and become inoperative before the vote was taken, and that the bonds so issued were void, even in the hands of innocent holders for value, and no recovery could be had.
    Appeal from the Appellate Court for the Second District;— heard in that court on writ of error to the Circuit Court of Bureau county; the Hon. Feancis Goodspeed, Judge, presiding.

      This suit was brought by J. H. Wade, in the circuit court of Bureau county, against the town of La Moille, to recover on ten bonds, and also the interest coupons thereto attached, issued by defendant on the first day of December, 1870, which bonds became due on the first day of. December, 1880. The declaration contains one special count on the bonds and coupons, and also the consolidated common counts. It was stipulated by counsel, the bonds and coupons, and the interest thereon, constituted the only cause of action, as mentioned in the declaration. The demurrer to the special count of the declaration was sustained by the court, and plaintiff electing to abide by his declaration, judgment was rendered against him for costs, in favor of defendant. That judgment was affirmed in the Appellate Court, and plaintiff brings the case to this court on his further appeal.
    Mr. George A. Sanders, for the appellant:
    The constitution of Illinois of 1870 went into effect on the 8th day of August,—two days after the election was held at which the bonds in controversy were voted. Const. 1870, schedule, secs. 1, 11, 12, 25; Governor’s proclamation, 42-64; Gross’ Stat. 1871; Hurd’s Stat. 1880, p. 53; Cooley’s Const. Lim. 67, 74; People v. Draper, 15 N. Y. 546; People v. Potter, 47 id. 377; People v. Supervisors, 3 Barb. 333; Real v. People, 42 N. Y. 270; Richter v. Pappenhauser, 42 id. 373; People v. Norton, 59 Barb. 169; State v. Commissioners, 37 N. J. L. 288; Homestead cases, 22 Gratt. 266; People v. Gardner, 45 N. Y. 816; Peoples. Gardner, 59 Barb. 198; Charles v. Lamberson, 1 Iowa, 443; Manly v. State, 7 Md. 135; Bennett v. Bevard, 6 Iowa, 89; Scott v. Davenport, 34 id. 211; Gas Co. v. City, 12 id. 233; Cochran v. Taylor, 13 Ohio St. 381; White v. Hart, 13 Wall. 646; Wartman v. Philadelphia, 33 Pa. St. 202; Chance v. Marion County, 64 Ill. 70; Thompson v. Alexander, 11 id. 142; McHenry v. Trustees, 68 id. 142; People v. Supervisors, 100 id. 495.

      The constitution of 1870 not fixing, in hese verba, a different day for the “municipal aid” article to go into effect, it must of necessity have followed the body of the constitution, and became operative on August 8, 1870, otherwise we have a connected whole going.into operation in different parts. Supervisors v. Keady, 34 Ill. 296.
    The defendant having voted to make the subscription, and its officers having executed and delivered the bonds, and the State Auditor having registered them on sworn statements of the supervisors, and the defendant having paid the interest for four years, should be estopped from denying their validity. Knox County v. Aspinwall, 21 How. 539; Bissell v. Jeffersonville, 24 id. 287; Mercer County v. Hacket, 1 Wall. 291; Stephenson v. Schenck, 5 id. 772; Pendleton County v. Amy, 13 id. 305; Harter v. Kernochan, 103 U. S. 278; Bonham v. Needles, id. 648; Buchanan v. Litchfield, 102 id. 278; Humboldt Township v. Long, 92 id. 642; Town of Coloma v. Eames, id. 642; Lynde v. County, 16 Wall. 13; Walnut v. Wade, 103 U. S. 683.

      Bona fide holders of bonds are not bound to look beyond the recitals and legislative enactments in force when they are issued. They are negotiable instruments, and are subject to the commercial laws of the country. Wade v. Walnut, 103 U. S. 683; Gilpecke v. Dubuque, 1 Wall. 206; County of Warren v. Marcy, 97 U. S. 103; Roberts v. Bolles, 101 id. 129; Pine Grove v. Talcott, 19 Wall. 666; Livingstone v. Darlington, 11 Otto, 410.
    Messrs. Skinner & Brothers, and Mr. H. M. Trimble, for the appellee:
    Municipal bonds issued without authority are void, and there can be no innocent holders of them. Burr v. Carbondale, 76 Ill. 455; Town of Middleport v. Life Ins. Co. 82 id. 562; Lippincott v. Town of Pana, 92 id. 24; Barnes v. Town of Lacon, 84 id. 461; Hewitt v. School District, 94 id. 528.

      When there is an entire absence of power, the recitals of those invested with the ministerial duty of issuing municipal bonds will afford no protection to even bona fide holders for value of such bonds; and such holders are bound to take notice of the want of authority to issue them. Williams v. Town of Roberts, 88 Ill. 11; Lippincott v. Town of Pana, 92 id. 24.
    Municipal corporations, unless authorized by law, have no power to make and place in the market commercial paper; and there is no- presumption that such paper has been issued within the scope of their power, as is the case with corporations created for business purposes. Hewitt v. School District, 94 Ill. 528; Board of Education v. Taft, 7 Bradw. 571.
    The doctrine of estoppel can not evade or nullify the constitutional inhibition of July 2, 1870. Bonds issued without authority being- void, the mere levy of taxes, and payment of interest on them, will not render them valid; and such payment of taxes can not amount to an estoppel of a void act. Schæffer v. Bonham, 95 Ill. 381; Supervisors v. Cook, 88 id. 44; Schuyler County v. People, 25 id. 163; Lippincott v. Town of Pana, 92 id. 24.
    The municipality has no power to ratify void bonds by payment of interest thereon, so as to bind the tax-payer. It is only an act defectively done under authority that may be ratified. Town of Pana v. Lippincott, 2 Bradw. 466; Supervisors v. Cook, 38 Ill. 44; Schæffer v. Bonham, 95 id. 368.
    All persons dealing in securities issued by municipal corporations, are chargeable with notice of a want of authority in their creation. Supervisors v. Cook, 38 Ill. 44; McClure v. Oxford, 94 U. S. 432; Marsh v. Fulton County, 10 Wall. 676.
    The section of the constitution of this State relating to “municipal subscriptions to railroads or private corporations, ” took effect on July 2, 1870; and all such subscriptions or donations not authorized by a vote of the municipality prior to that date, are void. Schall v. Bowman, 62 Ill. 321; Richards v. Donagho, 66 id. 74; Wright v. Bishop, 88 id. 302.
    This “municipal aid” provision took effect on July 2, 1870. County of Randolph v. Post, 93 U. S. 508.
    The new constitution of the State, which came into operation on the 2d of July, 1870, annulled, we think, the power of municipalities to make donations to railroad companies. Town of Concord v. Savings Bank, 92 U. S. 629.
    The bondholder is required to inquire whether a subscrip,tion had been made prior to July 2, 1870, and he is bound to know the authority to issue such bonds terminated on that day. County of Moultrie v. Savings Bank, 92 U. S. 636.
    “We are therefore compelled to hold that the subscription of the town of East Oakland had not been authorized under existing laws, by a vote of the people, prior to July 2, 1870. * * * Where there is a total want of authority to issue the bonds, there can be no such thing as a bona fide holding. ” East Oakland v. Skinner, 94 U. S. 258.
   Mr. Justice Scott

delivered the opinion of the Court:

The declaration in this case describes the bonds in suit, and from that description it appears the bonds show, on their face, they were issued by virtue of the charter of the Illinois Grand Trunk railway, and amendments thereto, and other laws of the State of Illinois, and in accordance with the vote of the electors of such township at the special election held August 6, 1870, in accordance with such charters and amendments and laws. Since the adoption of the present constitution of this State, all subscriptions or donations attempted to be made by any municipal corporation, in aid of a railroad oi”: other private corporation, are forbidden absolutely, and all bonds issued by such corporation for any such purpose are absolutely void, even in the hands of a purchaser for full value. The bonds in suit were voted and issued by the town since the “municipal aid” provision of the constitution took effect, and that being so, there was then a total want of authority in the town either to vote or issue such bonds. This court decided in Schall v. Bowman, 62 Ill. 321, that the separate article of the constitution of 1870 of this State which forbids, absolutely, a municipal corporation to become subscriber to the capital stock of any railroad or private corporation, or make donation to or loan its credit in aid of such corporation, having been submitted, with other separate articles, to a vote of the people, separately from the main body of the constitution, and adopted by the people, became a part of the organic law of the State from and after the second day of July, 1870, and a constituent part of the same eo instanti. This decision has been followed by this court in Richards v. Donagho, 66 Ill. 73, and Wright v. Bishop, 88 id. 302. It has also been followed by the United States Supreme Court in Wade v. Walnut, 105 U. S. 1, and in other cases in that court, and this court has no inclination to reconsider the principal case. It will be regarded the separate article of the constitution took effect on the second day of July, 1870, and no further discussion of that .question need be had.

It is conceded there can be no bona fide holding of municipal bonds where there was no power in the municipality for the vote or contract at the time it was taken or made. But to avoid this objection, it is said there was ample legislative power existing in this case at the time the vote was taken, to enable the municipality to vote the bonds, and that it was never abrogated until the announcement of the decision in Schall v. Bowman,—which was some years after the vote was taken. There is no warrant for assuming there were any existing laws under which the town of LaMoille could vote aid to the railroad company, either by donation or subscription, on the 6th day of August, 1870, when the bonds in suit were voted. Nor is it correct to say the decision in Schall v. Bowman abrogated any laws on the subject of municipal aid to railroads or other private corporations. It simply declared the separate article of the constitution in relation to municipal aid to such corporations, took effect on the second day of July, 1870. That being so, there was then no law that authorized the vote taken on the 6th of August, 1870. All previous laws that had authorized municipal corporations to vote aid to railroad or other private corporations, by donation or subscription, had ceased and become inoperative before the vote in this case was taken.

Elaborate arguments have been made on every phase of this case, but the facts, about which there is no controversy, bring it so clearly within the scope of the previous decisions of this court, the questions made are not considered open for discussion.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

Mr. Justice Dickey did not participate either in the consideration or decision of this case.


author: Mr. Justice Sheldon

text:
    City of Chicago v. James W. McDonough et al.

      Filed at Ottawa November 17, 1884.

    1. Pleading—of the declaration—in suit to recover for injury to a reversionary interest. In order to recover for an injury done to a reversionary interest in land, the declaration must either state an injury of such a nature as to be necessarily injurious to the reversion, or must explicitly allege that the acts complained of were injurious to the reversion. If, however, it sets up an injury of such a permanent nature as to be necessarily injurious to the reversion, it will be sufficient.
    2. Evidence—to show damage to a reversionary interest. In an action on the case by a reversioner, against a city, to recover damages caused by the construction of a viaduct near the property, and raising the grade of the street so as to render access to the building on the premises difficult, testimony of witnesses that the property, taken as a whole, was damaged, and stating the damage, was held competent to show the damage to the reversion.
    3. Same—as to testimony distinguishing between damage to the present possession and the reversion. The lease of the property was given in evidence, and proof made of the damage to the rental value, as well as evidence of the damage to the property by the depreciation of its market value: Held, that the evidence furnished data from which the jury might calculate the damage to the reversion separate from that to the possession.

      i. At the commencement of the trial the plaintiff’s counsel stated to the court and jury that no claim was made for injury to the present possession of the premises, and then proved by witnesses the damage to the property as a whole, which testimony was objected to, generally, “as including too much,” and on account of the “lease matter,” without distinctly asking to have the evidence confined to the injury to the reversion: Held, there was no error in the admission of the evidence, as the defendant had the right, on cross-examination, to have the testimony made restrictive to the two species of damages, and as damages to the possession had been disclaimed in open court.
    5. Instruction—stating the rule too broadly—cured by another limiting its application. In an action by the reversioner to recover damages done to property then in the possession of lessees under an unexpired lease, the court instructed the jury that if they believed, from the evidence, “that said premises were permanently damaged and injured, and the market value thereof lessened, by reason of the acts of the” defendant, they should find for the plaintiff. The plaintiff openly, on the trial, stated that he made no claim for damages to the leasehold interest, and the court, for the defendant, instructed the jury “that the plaintiff can not recover any damages in respect of said leasehold interest, for the period of said term,” etc.; “and the question for the jury to determine is, whether any, and if so, what, damage has been done” by the acts complained of, to the premises, “subject to the lease:” Held, that the latter instruction cured the defect in the other.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Rollin S. Williamson, Judge, presiding.
    Mr. Francis S. Winston, for the appellant:
    Appellees declared as the absolute owners of the premises in question, introduced their evidence, asked for their instruction, and recovered upon the theory of damage to the entire estate, yet had but the reversion to the estate.

      The declaration should have alleged an injury to the plaintiffs’ reversionary estate. Jackson v. Pesked, 1 M. & S. 234; Potts v. Clark, Spencer, (N. J.) 536; Tinsman v. Railroad Co. 1 Dutch. 255.
    The admission of the improper evidence was not cured by the defendants’ instruction. Fire Ins. Co. v. Rubin, 79 Ill. 402; Railroad Co. v. Winslow, 66 id. 219; Railroad Co. v. McLaughlin, 77 id. 275.
    There was a fatal variance between the declaration and the proof. Plaintiffs declared as absolute owners, and the evidence showed them to be the owners of the reversion only. McConnell v. Kibbe, 33 Ill. 175; Railroad Co. v. Todd, 91 id. 70; Lyon v. Kain, 36 id. 362; Murphy v. Orr, 32 id. 439; Rupert v. Mark, 15 id. 540; Ballance v. Rankin, 12 id. 420.
    Plaintiffs’ instruction was erroneous in not confining the finding of damages to the reversion. Cooper v. Randall, 59 Ill. 317.
    Mr. Farlin Q. Ball, for the appellees:
    There is no merit in the point that appellees recovered damages for an injury to the possession. Such damages were disclaimed at the beginning of the trial, and was so understood by the jury. The attention of every witness was directed to the acts of permanent damage, only, and the jury were allowed to visit the premises.
    The declaration must allege that the injury was done to the reversion, or must state an injury of such a permanent nature as to be necessarily injurious to the reversion. Railroad Co. v. Loeb, 8 Bradw. 627; Railroad Co. v. McLaughlin, 77 Ill. 275.
    The city, by its instructions, cured any infirmity in that given for the plaintiffs. Latham v. Roach, 72 Ill. 179.
    If substantial justice has been done, this court will not reverse for an error in an instruction. Schwartz v. Schwartz, 26 Ill. 81; Hall v. Sroufe, 52 id. 421.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action in case, brought by the plaintiffs, against the city of Chicago, to recover for certain damages alleged to have been caused to the plaintiffs’ property by the:erection of the Harrison street viaduct by the city.

Canal street, in the city of Chicago, runs north and south, near the south branch of the river, and west of it. Harrison street runs east and west, crossing the south branch and Canal street at right angles. The property in question lies seventy-five feet north of Harrison street, on the east side of Canal street. It is a lot fifty feet front on Canal street, by a depth-of one hundred feet, to a twenty-foot alley, with a four-story brick building on the lot. Harrison street, about eight hundred feet east of where it intersects Canal street, crosses the south branch of the river, by a bridge. West of such bridge, and covering a breadth of some six hundred feet, were a great number of railway tracks, running, substantially, parallel with Canal street. In 1881 the city constructed a viaduct along Harrison street, over the railway tracks mentioned, the structure extending from the river bridge to Canal street, carrying the roadway of Harrison street some fifteen feet above its former level, and over such tracks. The declaration alleges, that on account of the construction of the viaduct on Harrison street, with its approaches on Canal street, access to the property was obstructed by reason of the raising of the grade on Canal street, and by closing the public alley in the rear, leading into Harrison street, and that the defendant carried away and converted to its own use a stone sidewalk in front of the property. The premises in question were under a lease to Eastman & Wilkins, from October 7, 1878, for a term of five years, at a rental of $1500 per annum. There was a verdict in the Superior Court, for $10,000, upon which judgment was entered. The judgment was affirmed by the Appellate Court for the First District, and the defendant appealed to this court.

The point is made by appellant, that the plaintiffs have in this judgment recovered damages for injuries done to the possession; that the plaintiffs declared as absolute owners of the premises, introduced their evidence, asked and had given their instruction, and recovered upon the theory of damage to the entire estate. Respecting the declaration, we understand the rule to be, that in order to recover for an injury done to the reversion, the declaration must either state an injury of such a nature as to be necessarily injurious to the reversion, or must explicitly allege that it was injurious to the reversion. Tinsman v. Railway Co. 1 Dutch. (N. J.) 255. The declaration in the present case sets up an injury of such a permanent nature as to be necessarily injurious to the reversion, which we conceive to be sufficient in this respect.

As to evidence, the counsel for the plaintiffs, while their first witness was on the stand, stated in open court, to the court and jury, that Eastman & Wilkins had a lease of these premises, which ran until October, 1883, and that no claim was made for -injury to the present possession. The testimony to which exception is taken, is that of plaintiffs’ witnesses that the property, taken as a whole, was damaged by the erection of the viaduct, and stating the amount of the damage. This was competent evidence to show damage to the reversion. Defendant made only a general objection to it “as including too much, ” and on account of the “lease matter.” Had it desired there should be discrimination made between damage to the reversion and that to the possession, and that the evidence should be strictly limited to the former, it should have specifically so asked, instead of making the general objection it did. There was full opportunity, on cross-examination, to have the testimony made restrictive in respect of the two species of damage; and the general announcement which had been made, that there was no claim for injury to the present possession, should, of itself, control the application of the evidence to damage to the reversion. The opinions of witnesses of the damage to the reversion distinctively from that to the possession, had they been given, might have been some relief to the jury in their work; but the lease was in evidence before them, and evidence of the amount of damage to the rental value, which, with the evidence of the damage to the property by the depreciation of its tiiarket value, would furnish data to the jury from which they might calculate the damage to the reversion separate from that to the possession. We perceive no error in the admission of testimony.

Exception is taken to the instruction given for the plaintiffs, that if the jury believed, from the evidence, “that said premises were permanently damaged and inj ured, and the market value thereof lessened by reason of the acts of the city,” they should find for the plaintiffs. This instruction is rather broad, and might more properly, by its terms, have been confined to the injury to the reversion; but it should be taken in view of the general disclaimer which had been made at the beginning of the trial, of any recovery for injury to the possession. Besides, there was all the needed qualification of the instruction in the one given for the defendant, “that the plaintiffs can not recover any damages in respect of said leasehold interest for the period of said term from October 7, 1878, until October 7, 1883; * * * and the question for the jury to determine is, whether any, and if so, what, damage has been occasioned by the construction of the Harrison street viaduct and its approaches, to the premises in question, subject to the lease.” This latter instruction appears to cure the defect complained of in the instruction for plaintiffs, and the instructions are not contradictory. The one explains the other.

There are some minor objections as to the admission of testimony, which we do not perceive to be of material force.

It may be that the jury, in fact, awarded to plaintiffs all the damages done to the premises, both in possession and reversion, by the improvement in question; but we do not think, as claimed by appellant, that the jury were allowed to do so under the evidence and under plaintiffs’ instruction. From what took place on the trial, and from defendant’s instruction, it may properly be said that the presentation of the case to the jury was, that the recovery of damages was limited to the injury to the reversion.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Walker Mr. Chief Justice Scholfield, Mr. Justice Dickey : Mr. Justice Sheldon

text:
    George P. Bay v. Simeon B. Williams.

      Filed at Ottawa November 17, 1884.

    1. Purchaser from mortgagor—liability on assuming mortgage debt. A purchaser of mortgaged premises from the mortgagor, who assumes payment of the mortgage debt, or who accepts a conveyance reciting his assumption of the same with a knowledge of such recital, will at once become personally liable to the mortgagee for the mortgage indebtedness; and he can not defeat the mortgagee’s right to hold him responsible, by procuring a release from the mortgagor.
    2. Same—consideration for assuming mortgage debt by the purchaser. The acceptance by the purchaser of a conveyance by a mortgagor of his equity of redemption in mortgaged premises, is a sufficient consideration for a promise by the grantee to assume and pay the mortgage debt.
    3. Action—pasties—promise to pay a debt to a third person. A promise by one, upon a valuable consideration moving from another, to pay the debt of that other to a third person, inures to the benefit of such third person; and his right to maintain an action upon it is vested in him by force of the agreement itself. The express assent of the beneficiary is not essential to'his right to avail of its benefits.
    4. Indemnity to debtor against his own debt—whether availing to his creditor, and in what way. Where a debtor holds an indemnity against his debt, or other security for his protection, his creditor can reach such indemnity or security only in a court of equity, and there only when his debtor is insolvent, or on some other equitable grounds.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. John Woodbridge, for the appellant:
    There is no sufficient evidence of the assumption of the mortgage by Bay. The deed to him, alone, is insufficient. Thompson v. Dearborn, 107 Ill. 88.
    A release of a debt or claim for damages by one of many who hold the debt or claim jointly, is a full discharge of all. 1 Parsons on Contracts, 26; Piersons v. Hooker, 3 Johns. 70; Austin v. Hall, 13 id. 28; Bulkley v. Dayton, 14 id. 387; Bruen v. Marquand, 17 id. 58; Halsey v. Fairbanks, 4 Mason, 206; Tuckerman v. Newhall, 17 Mass. 581; Wiggin v. Tudor, 23 Pick. 444.
    Where parties make a contract which either directly or incidentally benefits a mere stranger, they may at their pleasure abandon it, and mutually release each other. Crowell v. Currier, 27 N. J. Eq. 153; Crowell v. Hospital, 27 id. 650.
    The mortgagee’s right to sue upon the promise of a purchaser has been placed upon his right to equitable subrogation. Crowell v. Hospital, 27 N. J. Eq. 650; Trustees v. Anderson, 30 id. 368; Youngs v. Trustees, 31 id. 300; Parsons v. Freeman, Amb. 115; Tweddell v. Tweddell, 2 Bro. Ch. 101; Woods v. Huntingford, 3 Ves. 128; Butler v. Butler, 5 id. 535; Waring v. Ward, 7 id. 337; Earl of Oxford v. Lady Rodney, 14 id. 417; Barham v. Earl of Thanet, 3 M. & K. 607; Barry v. Harding, 1 J. & La T. 485; 3 Johns Ch. 229; 1 Sugden on Vendors, 195-216; Cooke on Mortgages, 476; Klapworth v. Dressler, 2 Beas. 62.
    go the mortgagee’s right to sue is said to rest upon the fact that the contract of the grantee of the mortgagor is made for the benefit of the mortgagee. (Bird v. Lanius, 7 Ind. 615.) And it is to rest on the principle of novation. Urquhart v. Brayton, 12 R. I. 172.

      The parties to the contract may rescind it before it is acted upon by the person for whose benefit it was made. Day v. Patterson, 18 116; Durham v. Bischof, 47 id. 216; Miller v. Billingly, 41 id. 467; Butterfield v. Hadstrom, 7 N. H. 345.
    Messrs. Dent, Black & Cbatty Bros., for the appellee,
    contended that the appellant was personally liable for the mortgage debt. Daub v. Engelbach, 109 Ill. 267.
    The release was obtained without consideration, and is no better than if obtained after suit brought.
   Mr. Justice Walker

delivered the opinion of the Court:

It appears from the record in this case, that Mrs. Camelia J. Williams, on the 11th day of March, 1873, sold to Newman & Sissons forty acres of land lying several miles south of the city of Chicago, for the sum of $12,000, and after deducting the advanced payment, took their promissory notes, payable in installments. To secure the deferred payments they executed to Thomas Dent a trust deed on the property, containing the usual powers conferred by such instruments. Appellant, on the 8th day of September of the same year, purchased the land of Newman & Sissons for the consideration named in their warranty deed, of $24,000. Their deed contained an express promise on the part of appellant to pay and discharge the debt securetl by the trust deed on the land in favor of Mrs. Williams. The provision is in this language: “Which said notes for principal and interest, said party (George P. Bay) expressly agrees to pay. ” Appellant afterwards, on the 7th day of October, 1878, applied to Sissons, and he, for the expressed consideration of one dollar and other sufficient considerations, released appellant from this obligation. Appellant also applied to Newman, who had asked to be discharged from his debts in bankruptcy, for a similar release, but he declined to give it. Newman subsequently obtained his discharge in bankruptcy. Mrs. Williams, on the 5th day of November, 1879, filed this bill to foreclose her mortgage, and on a hearing, on the 27th day of May, 1881, she recovered a decree of foreclosure. The master sold the land, and it was bid off by her at $12,525, which left-$3559.46 unpaid on the decree. Afterwards, on the 12th of September, 1883, the court found that appellant had assumed to pay the debt secured by the trust deed, and thereby became personally liable for the deficiency, and decreed that an execution issue for the unpaid balance of the decree. He appealed to the Appellate Court for the First District, where, on a hearing, the decree of the lower court was affirmed, and the case comes tó this court by another appeal.

The question presented for determination is, whether the court below erred in rendering this supplemental decree awarding execution against appellant.

It is first claimed that the evidence is not sufficient to establish the fact that appellant ever consented to or became bound by the clause in the deed from Newman & Sissons to him, and in support of the proposition the case of Thompson v. Dearborn, 107 Ill. 88, is invoked. In that case, which was a decree on an order pro confesso, the bill failed to allege that Thompson ever assented to or had any knowledge that Funk, the mortgagor, had made such a deed. In the absence of all proof showing that Thompson assented to the execution of the deed, or had ever ratified it in terms, or tacitly by receiving it, or in some other manner, it was held that the bill failed to show a lialoility,—that to fix the liability of such a grantee it must appear that he participated in its execution, or had knowledge that it had been made and assented to, or in some manner approved or ratified it; otherwise it would be in the power of the mortgagor, of his own motion, without the knowledge and without the assent of the grantee, to render .any one liable to pay the mortgage debt by simply executing to him a deed containing such a clause, and having it recorded in the proper office. No such question arises in this case, as appellant admits that he participated in the execution of the deed and received it from the grantors.

Appellant refers to decisions in other States to show that unless the mortgagee actually agrees to look to the grantee of the mortgagor as his debtor, he does not become liable. It appears that adjudged cases of the courts are not harmonious,—not even the courts in the same States,—and it may be added that the cases are not capable of being reconciled. There could, therefore, be no reason for the endeavor on our part to attempt to conform our decisions to those of other States, as there would still be a want of harmony, and when other decisions shall be made, would induce the effort for further change in our decisions. On the mere authority of adjudged cases in other tribunals, we would have to vacillate to keep in line. We can see no necessity or reason for overruling our previous decisions, which are harmonious, and date almost from the organization of the court. In the recent case of Dean v. Walker, 107 Ill. 540, these questions were pressed upon our attention, and most of the authorities now referred to by appellant, with others, were carefully and deliberately considered, and we held adversely to the views of appellant now pressed on our attention, and the decision of that case must conclude their discussion in this case. The doctrines of that case are in accordance with the uniform decisions of this court, and we regard them as settled in this jurisdiction. We therefore decline to enter upon their further discussion in this case. The elaborate argument of appellant has failed to convince us that our former decisions are not sound. It therefore would answer no beneficial purpose to review our decisions, and repeat arguments heretofore adduced in their support.

It is next urged, that admitting the doctrine to be correct, appellant was absolved from all liability by Sissons’ release, and cases are cited to the effect that the mortgagor may release his grantee from his promise to pay the debt of the mortgagee at any time before such mortgagee brings suit to enforce the promise. The cases referred to proceed upon the grounds that the promise of the. grantee is made to his grantor, and not to the mortgagee, and that the latter has no interest in the promise until he assents to and relies upon the promise, and such acceptance is manifested by bringing suit to enforce the promise; or they proceed, in other cases, upon the theory that by relying on or accepting the promise of the grantee to the mortgagor, the mortgagee releases the mortgagor, and accepts his grantee as his debtor; and there is still another theory, and that is, that the promise by the grantee is in the nature of an indemnity to the mortgagor,— and under either of these theories the mortgagor may surrender or release the indemnity, or release the grantee from his promise, before it is accepted, or before the mortgagor is released from the debt by the mortgagee. This court has never recognized either of these theories as the law. It has ever been held by this court that such a promise inures to the benefit of the person for whose benefit it is made, and the right to- sue is vested in him by force of the agreement itself. It has never been held by this court that the express assent of the beneficiary is essential to his right to avail of its benefits ; nor has it been held, to have force as an agreement to the person in whose favor it was made he must discharge his debtor, and accept the maker of the new promise as his debtor. On the contrary, it was held in Dean v. Walker, supra, that the mortgagee might sue either the mortgagor or his grantee assuming to pay the debt. Nor has it been held that the promise of the grantee to the mortgagor is a mere indemnity of the latter against the payment of the mortgage. On the contrary, this court has uniformly held that the beneficiary may sue at law, which repudiates the doctrine of indemnity, as the person for whose benefit the promise is made can never reach an indemnity or security given to his debtor but in chancery, and then only when his debtor is insolvent, or on some other equitable grounds. The principle upon which this court has acted is, that such a promise invests the person for whose use it is made with an immediate interest and right, as though the promise had been made to him. This being true, the person who procures the promise has no legal right to release or discharge the person who made the promise, from his liability to the beneficiary. Having the right, it is under the sole control of the person for whose benefit it is made,—as much so as if made directly to him.

It is urged there was not a sufficient consideration to support the promise of appellant to pay the debt owing to Mrs. Williams. That is a misconception. He received the equity of redemption of the land, which he supposed was worth all that he promised to pay, and that was sufficient to support the promise. Nor does it matter whether it was received from his grantors or Mrs. Williams. Whether from the one or the other, it was equally binding. There is no force in this objection.

Perceiving no error in the record, the decree of the Appellate Court is affirmed.

Decree affirmed.

Mr. Chief Justice Scholfield,

dissenting:

I can not concur in this opinion. The precise question has never been presented to this court before. The release of Sissons was executed before any acceptance by Mrs. Williams of the assumption by Bay of the payment of the debt of Newman & Sissons. She might have accepted their assumption ; but it was optional to do so, or not. She was under no obligation to do so. Notwithstanding the sale of the land to Bay, she had, apart from his assumption, all the security she had ever had for the payment of her debt,—namely, the individual note of Newman & Sissons, secured by trust deed on the land, in the purchase of which the indebtedness was incurred. Bay owed Mrs. Williams no duty in regard to this liability, further than he might voluntarily assume to protect his purchase, and Newman & Sissons were under no obligation to furnish her any additional security. It was purely voluntary, therefore, upon the part of Newman & Sissons, and Bay, whether Bay, in purchasing the land, should assume the payment of the debt of Newman & Sissons to Mrs. Williams, and purely voluntary upon her part whether she should accept it or not; and so it is impossible that she could have had a vested interest in the assumption before she,had done some act upon the faith of it, making herself thereby irrevocably a party to it. Having no vested interest in the assumption, it must necessarily follow that the release put an end to it, so that she could not afterwards elect to accept it. The assumption clause having been executed voluntarily, and without any legal claim on her part to have it executed, it was in the nature of a mere offer, until acted upon, which might be withdrawn at pleasure,—and the execution of the release was, in effect, its withdrawal. The authorities, so far as I have examined, all accord in this view. Durham v. Bischof et al. 47 Ind. 211; Davis v. Calloway, 30 id. 112; Carnahan v. Toucey, 93 id. 564; Moore v. Ryder, 65 N. Y. 442; Stephens v. Cassbacker, 8 Hun, 116; Crowell v. Currier, 27 N. J. Eq. 152; Butterfield v. Hadstrom, 7 N. H. 345.

Mr. Justice Dickey :

I concur in the views here expressed by the Chief Justice. If A, owing B a given sum, for a valuable consideration takes a written promise made by C to A, (and to which promise B is not a party,) that 0 will pay to B the amount due to B by A, this is simply a contract between A and C, in which B, strictly speaking, has no rights. By the ancient rules, B could not avail himself of this promise, except by a suit in the name of A, against 0. Afterwards the form of proceeding was so modified that B was, and now is, permitted to sue in his own name, instead of in the name of A, for his use. When A thus exacts a promise from C to pay A’s debt to C, it affects B only in so far as the same may be regarded as an offer by A to B to give B additional security. Until something occurs which may be construed as an executed gift, A may withdraw the offer.

Mr. Justice Sheldon

concurs in the opinion of the Chief Justice.


author: Mr. Justice Mulkey

text:
    Walter C. Wyman v. Chester K. Snyder, Admr.

      Filed at Ottawa November 17, 1884.

    1. Contract—whether amounting to an equitable assignment, or merely creating the relation of debtor and creditor. An agent appointed by the owner to sell coal lands upon commission, employed another to aid him in effecting a sale, promising to give the latter, as was claimed, one-half of his commissions in case of a sale at a given price, which sale was effected through the latter, and after the death of the former the latter presented a claim against his estate for one-half of the commissions received. It was held, on a review of the evidence, there was no equitable assignment of half of the claim for commissions, but that the relation between the two was merely that of creditor and debtor.
    2. Evidence—as to whether a transaction amounted to am, equitable assignment. The burden of proof is upon a party who claims an equitable assignment of one-half of a demand, to show that fact by satisfactory evidence; and this is not shown by proof of casual admissions or statements of the party holding the demand, varying in form of expression and in substance, especially when rebutted by the conduct and acts of the party claiming the assignment.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Grundy county; the Hon. Francis Goodspeed, Judge, presiding.

      Mr. M. J. Scrafford, and Mr. W. S. Johnson, for the appellant:
    The agreement between Benson and the appellant being founded upon a sufficient consideration, constituted an equitable assignment of $2500 of the fund, which, as between the assignor and assignee, or their representatives, created an equitable lien thereon, and no notice to the debtor was necessary. Story’s Eq. Jur. sec. 1040; 2 White & Tudor’s Leading Cases in Equity, (Hare & Wallace’s notes,) 204; Colebrooke on Collat. Sec. sec. 424, pp. 571, 572, and cases cited; Kenyon v. See, 94 N. Y. 568; Williams v. Ingersoll, 89 id. 519; Coates v. Donnell, 48 id. 46; Wellsburg Bank v. Kimberlands, 16 W. Va. 555; Ranken v. Alfaro, L. R. 5 Ch. Div. 786; In re Mann, id. 367; In re Irving, L. R. 7 id. 419; Smith v. Everett, 4 Bro. Ch. 64.
    Not only can a chose in action be assigned by parol, but a lien upon it can be created by parol. Colebrooke on Collat. Sec. 573; Williams v. Ingersoll, 89 N. Y. 521; Thayer v. Daniels, 113 Mass. 129; Kingman v. Perkins, 105 id. 111; Dix v. Cobb, 4 id. 508; Stout v. Yaeger Co. 13 Fed. Rep. 802; Risley v. Phoenix Bank, 83 N. Y. 328; Patten v. Wilson, 34 Pa. St. 299.
    The estate of Ira F. Benson is insolvent, and the appellant can not collect his debt in the ordinary course of administration. The appellant is therefore entitled to relief in a court of chancery. McDaniel v. Cochrane, 11 Ill. 31; Bay v. Cooke, 31 id. 36; O’Brien v. Coulter, 2 Blackf. 421; Steere v. Hoagland, 39 Ill. 264.
    Messrs. Hill & Dibell, for the appellee:
    That the fund is not a trust fund, and that the relation of debtor and creditor alone was created, see Douglas v. Martin, 103 Ill. 29; Taylor v. Turner, 87 id. 302; Wilson v. Kirby, 88 id. 570; Weer v. Gand, id. 492; Steele v. Moore, 77 id. 473.

      An agreement to pay out of a particular fund, however clear, is not an equitable assignment. Christmas v. Russell, 16 Wall. 84; Trist v. Child, 21 id. 447; 2 Hare & Wallace’s notes to Leading Cases, 233.
    Such an agreement does not give an equitable lien upon the fund. Rogers v. Hosack, 18 Wend. 319; Christmas v. Griswold, 8 Ohio St. 559; Eib v. Martin, 5 Leigh, 148.
    Where the owner does not irrevocably part with all his rights against his debtor, and surrender all his control over the fund, there is no assignment. Hoyt v. Story, 3 Barb. 262; Gibson v. Stone, 43 id. 290; 2 White & Tudor’s Leading Cases in Equity, 1644.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal from a judgment of the Appellate Court for the Second District, affirming a decree of the circuit court of Grundy county, dismissing a bill filed therein by Walter C. Wyman, the appellant, against the appellee, Chester K. Snyder, as administrator of Ira E. Benson, deceased, to enforce an alleged assignment of a verbal contract.

The bill charges that some time during the month of May, 1880, Ira F. Benson, then of Grundy county, but since deceased, made an agreement with the complainant, but not in writing, that in consideration that the complainant would sell, or help him, said Benson, to sell, about twelve hundred acres of coal lands, located in or in the vicinity of Braceville, Grundy county, and known as the “Braceville mines,” for the sum of $85,000, which lands he, said Benson, had for sale, as the agent for Bruce, Beño & Little, the owners of the same, he, said Benson, would give and pay to the complainant one-half of a commission of $5000, which the said Bruce, Beño & Little had agreed to pay him, said Benson, should he effect a sale of said lands for said sum of $85,000, and that Benson then agreed with complainant that when said sale was completed for said sum of $85,000, one-half of said sum of $5000, or the sum of $2500, should belong to and become the property of the complainant. The bill then shows that complainant was on intimate business relations with the officers of the Chicago, Milwaukee and St. Paul Railway Company, through whom he learned that that company desired to purchase coal lands in the vicinity of the Braceville mines, and that in pursuance of the above agreement complainant introduced Benson to Lowry, an agent and expert coal examiner of the said Chicago, Milwaukee and St. Paul Railway Company, who, in connection with complainant and Benson, visited the said Braceville mines, and made an examination of the same, and by his report to the company advised the purchase thereof, which was subsequently carried into effect through the agency of Benson, assisted by complainant, at the price and consideration of $85,000. The answer admits the sale of the mines by Benson, for Bruce, Reno & Little, at $85,000, and that Benson was to receive from them $5000 for making the sale, but denies that complainant has any interest in or lawful claim to the same, or any part thereof. The record shows that before Benson’s death a controversy arose between Benson, and Bruce, Reno & Little, about the payment of his commission or compensation for making the sale, which resulted in his agreeing to make a deduction on the claim, of $500. This understanding was carried out after Benson’s death, the $4500 being paid to Snyder, as his administrator.

We think it clear, from the proofs, that appellant assisted Benson in effecting a sale of the mines, and that there was an agreement of some kind between them with respect to the commissions to be paid by Bruce, Reno & Little; but just what that agreement was, does not satisfactorily appear. It does, however, sufficiently appear, that upon the payment of the commissions appellant was to receive one-half of them, or a sum equal to one-half of them; and the question is whether the agreement between them, whatever it was, amounted to an assignment, in equity, of one-half the debt or claim, or whether it merely created the relation of debtor and creditor between them upon the collection of the same. Had the estate of Benson proved solvent, it would have been a matter of indifference whether the one or the other of these views prevailed; but as his estate will pay something less than fifty cents on the dollar, the difference becomes quite material,— hence this suit.

The burden of proof is, of course, upon the appellant to show, by satisfactory evidence, that there was an actual assignment to him of one-half of the debt or claim against Bruce, Reno & Little, as contradistinguished from a mere promise or undertaking on Benson’s part to pay appellant one-half of such debt or claim when collected. Has appellant done this? We think not. No witness has testified, nor does it otherwise appear, when or where the supposed agreement was made, nor is there any witness who pretends to give, or instrument or document that purports to contain, the terms of such an agreement. The evidence relied on to establish it consists of the conduct of the parties, and casual admissions or statements of Benson, made at different times, and varying both in form of expression and in import. The substance of this evidence is as follows: Witness Kelsey states: “I know he (meaning Benson) said he would give him (meaning appellant) part of the commissions. His 'language about Wyman was, he intended to give him a part.” Again, the same witness says: “He told me Wyman was to have a part of the commission. ” Witness Miner states that on one occasion when witness and Benson were speaking of the amount of commissions, the latter told him, in reply to the suggestion they were too much, “that he had to divide with Wyman.” In another portion of his testimony this witness says: “Benson said to me, whatever commissions I paid him, Mr. Wyman was interested with him in that. ”

Outside of the conceded fact .that appellant did assist Benson in making the sale, the above loose and casual statements are all the evidence in support of the hypothesis there was an assignment, in equity, of one-half of the latter’s claim on account of commissions. We are clearly of opinion they were altogether insufficient for that purpose. On the contrary, we think, taking the evidence altogether, it shows simply a personal undertaking on the part of Benson to pay appellant one-half of whatever commissions he collected on the sale; and that such was the understanding of the parties themselves we think is abundantly shown by their own conduct. Had there been an assignment, in equity, of one-half of the commissions in question, as is contended by appellant, the latter would have ceased to have any further claim against Benson or his legal representatives with respect to them after the sale was effected. His claim, in that event, would have been against Bruce, Beño & Little. Yet it is clear that the parties did not so regard their relations. .This is demonstrated .beyond all controversy, so far as appellant is concerned, by his filing the claim, in the first instance, against Benson’s estate.

The case is too clear, upon the facts, to require any further discussion of it at our hands. We regard the decree of the circuit court as altogether proper, and consequently there was no error in its affirmance by the Appellate Court.

The judgment will be affirmed.

Judgment affirmed.


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    Margaret E. Hoodless v. Simon Reid et al.

      Filed at Ottawa January 22, 1885.

    1. Payment—giving a promissory note—whether regarded as a payment of the original demand. The giving of a 'promissory note for an open account is prima facie a payment of the account. In such case the original demand is merged in the higher form of security, but it is no actual payment. The note may be returned, and an action maintained on the original cause of action. But this principle as to the giving of the higher security being regarded in any sense as payment, has no application to the giving of a promissory note for borrowed money.
    2. Same —giving of interest coupon notes—whether a payment of the interest, in respect to power of sale under trust deed as for interest due and unpaid. A borrower of money gave his promissory note for the principal, payable five years after date, with eight per cent interest, payable semi-annually, until the principal sum should be fully paid. The several installments of the interest during the period of five years were further evidenced by ten interest notes or coupons, of even date with the principal note, and attached thereto, and bearing interest after maturity. The principal note was secured by trust deed containing a power of sale in case of default in the payment of any installment of interest, and on default a sale was made by the trustee. It was contended that the giving of the coupon notes, bearing interest, was a payment of all the interest for five years, and hence no sale could be made, under the power, until the principal note matured; Held, that the giving of the interest notes could not be regarded as any payment of the installments of the interest.
    3. Sale under trust deed—accelerating maturity of debt by nonpayment of installments of interest. Parties may, by contract, make the time given for payment of the principal debt depend upon the prompt payment of the several installments of interest when due, and provide, either in the note, or mortgage securing the same, that a failure to make payment of any installment of interest shall work a forfeiture of the credit, and make the entire debt due at once.
    4. Same—relief against such acceleration, in equity. Where a deed of trust contains a power of sale in case of default in the payment of any installment of interest when due, and giving the right to declare the whole debt due, a court of equity will not set aside a sale made under such a power, merely upon the ground of relief against forfeitures.

      5. Same—personal notice—whether necessary. Unless the deed of trust so requires, personal notice of the time and place of the sale need not be given to the mortgagor or debtor, nor is it necessary to give him personal notice of the intention to exercise the option to make the whole indebtedness become due on failure to pay the interest.
    6. Same—inadequacy of price. The fact that property sold under a power in a deed of trust does not bring as much as it could be made to bring at private sale, by judicious management and unusual advertising, is no sufficient reason for setting aside such a sale, where there have been no unfair or fraudulent practices.
    Writ of Error to the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    The bill in this case was brought by Margaret E. Hoodless, against Simon Eeid, Thomas Murdoch, Frederick Fischer, and L. C. Paine Freer, and its object was to establish the right of redemption of complainant in and to certain premises described in the bill, and which had been previously sold by Freer under the provisions of a trust deed made by complainant to Freer, as trustee for Eeid, Murdoch and Fischer, which were at such sale bought by Eeid, and to require Eeid to account to complainant concerning the rents of the premises received by him, and also to surrender such premises to complainant, and for other relief. To the bill setting up the grounds upon which relief was demanded, defendants tiled their answer, to which a replication was also filed. On a hearing of the cause in the circuit court, upon the pleadings, and testimony adduced in open court, both oral and written, it was found complainant was not entitled to relief, and her bill was dismissed. Complainant brings the case to this court on error.
    Mr. Edward Roby, for the plaintiff in error:
    A court of equity will relieve against a penalty or forfeiture on making compensation. Brown v. Gaffney, 28 Ill. 149; Skinner v. Dayton, 2 Johns. Ch. 534.

      The giving of a note for an account is prima facie a payment of it. Smalley v. Eddy, 19 Ill. 207; Yates v. Valentine, 71 id. 643.
    The coupon notes may be severed and negotiated before the maturity of the interest they represent, and thus pass as separate and independent securities, like other commercial instruments. 2 Daniell on Neg. Inst. sec. 1489; Arents v. Commonwealth, 18 Gratt. 776; Clark v. Iowa City, 20 Wall. 584; Commissioners v. Aspinwall, 21 How. 539; Thomson v. Lee County, 3 Wall. 327; Town v. Culver, 19 id. 84; Beaver County v. Armstrong, 44 Pa. 63; Evertson v. Nat. Bank of Newport, 11 N. Y. (4 Hun,) 695; Spooner v. Holmes, 102 Mass. 503; Commonwealth v. Emigrant Association, 98 id. 12; Nat. Exchange Bank v. Railroad Co. 8 R. I. 375; Langston v. Railroad Co. 2 S. C. 249.
    Interest on the coupons is also covered by the mortgage. Gilbert v. Railroad Co. 33 Gratt. 599; Tarleton v. Backhouse, Cooper’s Ch. 231; Langston v. Railroad Co. 2 S. C. 249; Johnson v. County of Stark, 24 Ill. 75.
    If stolen and sold, the property in these coupons would be as complete in the holder as if they were coin. Arents v. Commonwealth, 18 Gratt. 777; Murray v. Lardner, 2 Wall. 110; Davis v. Miller, 14 Gratt. 1; Goodman v. Simonds, 20 How. 365.
    The provision in the mortgage making the whole debt mature, is a penalty, against which equity will relieve on slight grounds. Tiernan v. Hinman, 16 Ill. 400; Bane v. Gridley, 67 id. 388; Carpenter v. Lockhart, 1 Ind. 443; Raymond v. Caton, 24 Ill. 123.
    Forfeiture can not be taken advantage of. without a demand at the time and place fixed. Chadwick v. Parker, 44 Ill. 331; Woodward v. Cone, 73 id. 241; Burt v. French, 70 id. 254; Chapman v. Kirby, 49 id. 215; Cone v. Woodward, 65 id. 478.
    Notice of the election to declare the whole sum due, must be given. Life Ins. Co. v. Pearce, 75 Ill. 426; Palmer v.
      Ford, 70 id. 369; Basse v. Gallegher, 7 Wis. 442; Marine Bank v. International Bank, 9 id. 57; Wilson v. Winter, 6 Fed. Rep. 16; English v. Carney, 25 Mich. 178; Mallory's case, 5 Co. Rep. 113; Molyneaux v. Molyneaux, Cro. Jac. 146.
    Mr. Frank J. Crawford, for the defendants in error:
    The giving of the coupons did not, as between the parties to the loan, pay the interest installments, nor was it so intended. Story on Prom. Notes, secs. 105, 404, 438; Watkins v. Hull, 8 Pick. 522.
    A stipulation that the whole sum shall become due and payable upon any default in the payment of any part of the principal or interest, is universally held to be legal and valid. It is not objectionable as being in the nature of a penalty or forfeiture. 1 Jones on Mortgages, secs. 76, 1181; Railway Co. v. Murray, 15 Ill. 336; Harper v. Ely, 56 id. 179; Heath v. Holt, 60 id. 344; Chapin v. Billings, 91 id. 539; Gibbons v. Hoag, 95 id. 45; Cundiff v. Brokaw, 7 Bradw. 147; Richards v. Holmes, 18 How. 143; James v. Thomas, 5 B. & A. 44; Steele v. Brandpeld, 4 Taunt. 227; Stanclift v. Norton, 11 Kan. 218; First Nat. Bank v. Peck, 8 id. 660; Hale v. Gouverneur, 4 Edw. Ch. 207; Noyes v. Clark, 7 Paige’s Ch. 180; Crane v. Ward, Clarke’s Ch. 219; Pope v. Hooper, 6 Neb. 181; People ex rel. v. Superior Court, 19 Wend. 103; Ferris v. Ferris, 28 Barb. 29; Valentine v. Van Wagner, 37 Barb. 60.
    Where several instruments in writing are made at the same time, relating to the same subject matter, they may be regarded as a single instrument, and construed together. Canterberry v. Miller, 76 Ill. 355; Railroad Co. v. Barnett, 95 id. 195; Harper v. Ely, 56 id. 180; Denby v. Graff, 10 Bradw. 195.
    Personal notice of sale is not necessary, unless it is so provided. Marston v. Brittenham, 76 Ill. 611; Loan and Trust Co. v. Munson, 60 id. 374; Cundiff v. Brokaw, 7 Bradw. 147.
   Mr. Justice Scott

delivered the opinion of the Court:

The facts out of which the questions of law discussed arise, are so few and simple that no controversy exists as to them. On the 31st day of October, 1876, complainant borrowed of defendants Eeid, Murdoch and Fischer the sum of $7000, for the period of five years from that date, for which she agreed to pay them interest thereon at the rate of eight per cent per annum. As evidence of such loan and indebtedness complainant executed and delivered her promissory note to Eeid, Murdoch and Fischer, bearing date October 18, 1876, and payable five years after date, for the sum of $7000, with interest thereon at the rate of eight per cent per annum, payable half yearly, viz., on the 30th day of April and the 31st day of October in each year, until the principal sum should be fully paid. The several installments of interest to become due during the period of five years were further evidenced by ten interest notes or coupons, of even date with the principal note, and were attached thereto as coupons are usually attached. Each coupon was for one-half year’s interest on the sum borrowed, as provided in the principal note, and each, like the principal, was to bear interest after maturity, at the rate of ten per cent per annum. To secure «the principal sum borrowed, with the interest thereon, complainant executed and delivered to L. C. Paine Freer a mortgage or trust deed on the premises in controversy, which mortgage or trust deed contained the usual power of sale, and further provided that in case default should be made in the payment in any or either of the notes or coupons therein mentioned, whether for principal or interest, on the day on which the same, or either thereof, should become due and payable, “then all and each of the moneys secured to be paid by this indenture, shall, upon any such default, become immediately due and payable, anything herein contained, or in said promissory notes contained, to the contrary notwithstanding.” Afterwards, default was made in the payment of the installments of interest that fell due October 31, 1878, and April 30, 1879, (being $280 each,) and also in the payment of $28, part of the installment which fell due April 30, 1878. The trustee named in the deed, at the instance and request of the legal owners and holders of such indebtedness, after having advertised the premises in accordance with the terms of the trust deed, did, on the first day of July, 1879, sell the premises to Simon Eeid, he being the highest bidder therefor, and made him a trustee’s deed for the same, in the usual form. Reid, the purchaser of the property at the trustee’s sale, was one of the owners of the indebtedness secured, and no doubt his purchase was made for the benefit of all the parties interested.

A very great number of objections have been taken, both by the bill and on the argument, to the validity of the trustee’s sale, and to the title defendants acquired thereunder. Preliminary to the brief discussion that'is to follow, it is proper to say that every objection taken to the validity of the trustee’s sale and deed has been fully considered, and while it is not deemed necessary to remark seriatim on them, they nevertheless have all been fully considered, and the conclusion reached is in harmony with the decision of the circuit court that complainant is not entitled to the relief asked by her bill.

As the insistence of counsel is understood, the taking of separate notes or coupons for the interest on the principal sum borrowed, was payment of the interest on the $7000 note for the full period of five years it had to run. The argument proceeds on the hypothesis the interest notes or coupons attached to the principal note are negotiable as other commercial paper, and that the payees might assign them separately from the principal note, and the taking of such notes in some way operated as payment of the interest for the entire period the principal note had to run, and for that reason the principal debt was not due when the sale was made, and that the trustee could in no event sell until all the notes had become due according to their terms,—that is, the principal note and all the coupons. Undoubtedly, the giving of a promissory note for an open account is prima facie payment of the account. It is merged in the higher form of security, but it is no actual payment.. The note, when due, may be surrendered, and the action maintained on the original cause of action. That principle, however, has no sort of application to the giving of a promissory note for borrowed money. It is in no sense a payment, or any evidence of payment, of borrowed money, although the evidence of such indebtedness is negotiable at common law and under the statute of this State. The position taken on this branch of the case has really nothing in its support, in law or otherwise, that makes it necessary to elaborate the argument.

Another point made, is the provision of the mortgage or trust deed under which the sale was made,—in case default be made in either the indebtedness or money secured by that instrument, on the day on which the same shall become due and payable, to sell and dispose of such premises, or any part thereof, and all the right, title and equity of redemption of the mortgagor, and out of the proceeds of such sale, after-paying all expenses, then to pay the principal of such note, (that is, the principal note and coupon,) whether due and payable by the terms thereof, or not; and the interest due or accrued on such notes up to the time of sale is inserted in the mortgage to insure the payment of the note for principal and interest, and that against such penalty equity will relieve on the slightest grounds. The question involved in this proposition is not now open for discussion in this court. It was ruled in Ottawa Plank Road Co. v. Murray, 15 Ill. 336, that where, by the terms of the mortgage, the principal sum secured was to become due on a failure to pay the interest promptly, by default in that respect the mortgage was forfeited. The case of Tiernan v. Hinman, 16 Ill. 400, so confidently cited by counsel, is not in conflict with Ottawa Plank Road Co. v. Murray, as the court expressly said in its opinion, for the reason the mortgage and bond in that case provided for payment of interest at ten per cent per annum, payable semi-annually, and provided that if the interest should not be paid when due, the principal should immediately become due. There, no forfeiture, in contemplation of law, could arise. If the money was not paid, it drew interest; if paid, the interest stopped with the payment. That is precisely the fact in the case now being considered. The rule adopted in Ottawa Plank Road Co. v. Murray has been followed in so many subsequent cases in this court, that it will now be regarded as the settled law in this State, and no further discussion-will be had in regard to it. Harper v. Ely, 56 Ill. 179; Heath v. Holt, 60 id. 344; Chapin v. Billings, 91 id. 539; Gibbons v. Hoag, 95 id. 45.

Complaint is made that no personal notice was given to the mortgagor of the time and place of the sale to be made by the trustee. A sufficient reason for the omission to give such notice is, no personal notice was required, by the conditions of the mortgage, to be given before making the sale. (Marston v. Brittenham, 76 Ill. 611.) But aside from this view, it appears from the evidence complainant had actual notice of the time and place of the sale, and that is all the law would require, in any event. Nor was it necessary to give the debtor personal notice of the. intention to exercise the option to make the whole indebtedness become due on failure to pay the interest. Princeton Loan and Trust Co. v. Munson, 60 Ill. 371.

It is also made a ground of complaint, the property at the trustee’s sale sold for an inadequate price. The evidence on this branch of the case has been fully exainined, and while it may be, and is, doubtless, true, the property sold for less than its real value, the. price at which it was bid off is not so inadequate as to shock the judgment or raise any presumption of fraud. The sale was duly advertised, and an effort was made by the trustee to secure the attendance of bidders. Among those present was a son of the mortgagor, but no one appeared that was willing to bid more for the property. It is not to be expected the property would bring as much at a forced sale as it could be made to do at a private sale, by judicious management and by unusual advertising, and because it does not, it is no sufficient reason for setting aside a sale under a power, where there have been no fraudulent or unfair practices.

On the whole case considered, no ground is perceived on which any relief could be granted to complainant, and the decree of the circuit court must be affirmed.

Decree affirmed.