text:
    Railway Officials and Employes’ Accident Ass’n v. Hattie Bradley.
    1. Fraternal Insurance — Different Classifications. — A person in a certain occupation was insured in a fraternal insurance association for the sum of $5,000, under a peculiar classification providing that in case he was injured or killed while engaged temporarily or otherwise in any occupation or work not classified, his indemnity or death benefit should be rated on the basis of the most hazardous occupation mentioned in the classification of risks. While engaged in an occupation classified as more hazardous than that in which he was engaged, at the time of the issuance of the policy, he received injui ies causing his death. It was held, that his beneficiary was entitled under the policy only to the amount of indemnity rated according to the classification of the occupation in which he was engaged at the time of his injury.
    Assumpsit, on a policy of accident insurance. Appeal from the Circuit Court of Jackson County; the Hon. Oliver A. Harker, Judge, presiding. Heard in this court at the February term, 1901.
    Beversed and remanded.
    Opinion filed September 4, 1901.
    Guilford A. Deitch and Youngblood & Barr, attorneys for appellant.
    L. M. Bradley and W. A. Schwartz, attorneys for appellee.
   Mr. Presiding Justice Creighton

delivered the opinion of the court.

This was an action of assumpsit, in the Circuit Court of Jackson County, by appellee against appellant, to recover a “death loss” on an accident insurance policy. Trial by jury. Verdict and judgment in favor of appellee for §5,096.35.

The declaration consists of a special count setting up the policy sued on, m haeo verba, and of the common counts. The policy discloses that appellee’s husband was insured in the principal sum of $5,000, as “a passenger conductor under classification P. B.,” and that the insurance extended only to physical bodily injury, through external, violent and accidental means, resulting in disability or death. In case of certain specified disability the indemnity provided is a specified sum per week for fifty-two weeks. In case of certain injuries the indemnity provided is a specified portion of the principal sum named in the policy. And in case of other injuries named, and of a “death loss,” the policy provides for the payment of the whole of the principal sum. The policy also provides:

“ The principal sum and weekly indemnity is not forfeited by the insured engaging in occupation or by exposure to and risk rated by this association as more hazardous than that specified in this policy of insurance, but should the insured be fatally injured or wholly disabled while engaged temporarily or otherwise in any occupation or work classified by this association as more hazardous than that under which this policy is issued, or while doing any part of the work of any one so classified, or exposed to any risk rated by the association as more hazardous than the occupation herein named, said member, or his beneficiary, as the case may be, shall be entitled only to the indemnity or death loss as rated by the association in its classified tables for such increased hazard as his payment would have secured in such more hazardous occupation, work or exposure; * * * The classification of the risks of the association- are made part of this contract. If the insured is injured or killed while engaged temporarily or otherwise in any occupation or work not classified by this association, his indemnity or death benefit shall be rated as on the basis of the most hazardous occupation mentioned in the classification of risks of the association.”

To this declaration appellant pleaded the general issue, and a special plea, setting up the provision of the policy above quoted, and averring that at the time deceased received the injuries from which he died, he was engaged in the occupation of conductor on a mixed train, composed of passenger and freight Cars, and in the work of coupling and switching cars in connection with such train; that the occupation of conductor of such mixed train is classified by the association as more hazardous than the occupation oí passenger- conductor, and further averring that the payments made by deceased would have secured, in the occupation in which he received the injuries causing his death, the sum of $1,666.66.

"Upon the trial it was stipulated that deceased was insured under the occupation of passenger conductor for $5,000, and that the policy was in full force and effect at the time of his death; that he came to his death by external, violent and accidental means; that satisfactory proof of death was made; that appellant denied its liability in any sum in excess of $1,666.67, and immediately upon the death paid appellee $200 on account of the sum due on the policy and thereafter sent her a draft for $1,466.67, which appellant claimed to be in full of balance due, but which appellee refused to accept. It is also a part of said stipulation that appellant does not admit that deceased was at the time of his death employed as a passenger conductor, or doing the work or service pertaining to the occupation of a passenger conductor, and that all facts not admitted in said stipulation are to be proven on the trial.

The only controlling question of fact in the case really contested before the jury was as to whether, at the time deceased received the injury which caused his death, he was engaged temporarily or otherwise” in doing work pertaining to the occupation of passenger conductor or that of conductor of a mixed train composed of both passenger and, freight cars. To our minds the weight of the evidence is so manifestly against the verdict as to make it apparent that the jury was influenced by prejudice, passion or mistake.

Appellee’s counsel contend that appellant is concluded by the stipulation, and say that appellant has agreed in the stipulation that deceased “ was insured under the occupation of passenger conductor for $5,000, and that said policy was in full force and effect at the time of his death. It was not agreed that it was partly in force, nor that it was simply in force, but that it was in full force and effect at the time of the death.” True, the policy was and is in full force and effect, but the amount of liability, as expressed by the plain terms of the policy, depends upon the facts. Under certain states of fact the liability would be $35 per week, under others one-half the principal sum, under still others the whole principal sum of $5,000, while under the facts set up in the plea the liability wTould be only the sum of $1,666.67.

It is further contended that after appellant had received proofs of death, it promised to pay the claim, and thereby bound itself. This contention is based upon the following letter:

Indianapolis, Ind., January 20th, 1899.

Mrs. Hattie Bradley, 570 Lincoln Ave., Chicago, Ill.

Dear Madam: — We have your favor of 14th inquiring with reference to the settlement of your claim with our company. The proofs were received in our office on the 23d day of December and our contract calls for a settlement within ninety days from that date, and the settlement in accordance with the contract will be made within, the time specified, of which you will be advised.”

A reading of this letter discloses that the only promise by appellant is to settle in accordance with the contract. The terms of the contract are as above in this opinion stated, and the provision that “should the insured be fatally injured * * * while engaged, temporarily or otherwise, in any occupation or work classified by this association as more hazardous than that under which this policy is issued, or while doing any part of the work of any one so classified, or while exposed to any risk rated by this association as more hazardous than the occupation herein named, said member or his beneficiary, as the case may be, shall be entitled only to indemnity or death loss as rated by the association in its classified tables for such increased hazard as his payments would have secured in such more hazardous occupation, work or exposure,” is as much within the terms of the contract, as are the provisions relied on by appellee. There is here no such promise to pay under any particular clause of the contract as will bar appellant from showing that its liability is under the clause set up in this plea, and not under the clause relied on by appellee.

It does not appear to us that there is any principle of forfeiture involved in this case, and so we deem the authorities cited in that connection not applicable. The deceased was as clearly insured while engaged or working as conductor of a mixed train, as wdiile engaged or working as conductor of a passenger train, the difference being that in the less hazardous occupation the amount of indemnity was more, while in the more hazardous occupation it was less.

The judgment of the Circuit Court is reversed and the cause remanded.


source: Caselaw Access Project

author: Mr. Justice Worthington

license: Public Domain

text:
    Swift & Co. v. James Campbell.
    1. Contributory Negligence — Precludes a Recovery. — Where a laborer employed in a packing house pushing loaded tanks upon an uneven and slippery floor has knowledge of the condition of the floor and without complaint continues his work over the uneven and slippery floor, he must be held to have assumed the hazards of his employment and guilty of contributory negligence.
    2. Master and Servant — Knowledge of Defects. — Where defects are as well known to the servant as to the master he will be held as voluntarily assuming the risks of his employment unless coerced by .the master to do the work in which such risks are incurred.
    Trespass on the Case, for personal injuries. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the February term, 1901.
    Reversed, with a finding of facts.
    Opinion filed September 4, 1901.
    Statement. — This is an action brought by appellee to recover for personal injuries alleged to have been received while in the employ of appellant.
    The declaration consists of one count.
    The negligence charged is that defendant failed to use reasonable and ordinary care to see that the floor on which plaintiff worked was properly constructed, in good repair and safe condition for the plaintiff to work upon; that defendant negligently permitted the room in which plaintiff worked to be insufficiently lighted and the floor to be and remain in a greasy, slick, defective and unsafe condition, with holes and uneven places in its surface; that the defendant had notice of all these defects and that the plaintiff had no notice.
    It further alleges that plaintiff was engaged in running a truck with a tank built on it to hold pickle; that said truck and contents weighed five or six hundred pounds; that the plaintiff while exercising due care and caution was pushing the truck along a passage-way, that by reason of the aforesaid negligence of the defendant, the truck ran forward into a hole or depression in the floor, slid to one side and struck a vat, thereby throwing the plaintiff off his feet, straining, rupturing and greatly and permanently injuring him, etc.; that he expended and became liable to pay §500 for medicine and medical treatment; that he has sustained damages to the amount of §5,000.
    Appellant pleaded the general issue.
    The jury found for appellee and fixed his damages at $2,750. The court denied motion for anew trial, to which appellant excepted, and then gave judgment on the verdict for appellee, from which judgment is this appeal.
    A. & J. F. Lee and C. E. Pope, attorneys for appellant.
    W. P. Launtz and Freels & Joyce, attorneys for appellee.
   Mr. Justice Worthington

delivered the opinion of the court.

The evidence shows that Swift & Co., a corporation, operated a slaughter and packing house. Appellee had been employed for three weeks prior to the alleged injury as janitor. His duties as such, consisted in cleaning one floor of the building in which he worked, with a long handled scraper or mop, by pushing the instrument over the floor. He also had charge of the lights and turned them on and off when required. This room of the building was divided into passage-ways, commonly referred to as sections, which were about four feet wide. There were electric lights along each section. Through these passage-ways trucks loaded with brine or pickle were pushed to the vats. The floor, by use, had become somewhat worn, rough in places, and with depressions at places, caused by the truck wheels. The depression where the accident occurred was about an inch deep. The escape of the brine on the floor as it was wheeled along in the trucks made it slippery.

Appellee had worked as janitor two hours on the day the accident obcurred. He was then ordered by a foreman of appellant to assist in trucking from place to place in this same room. He had at other times assisted in trucking. While pushing with his shoulder against a box on a truck three and one-half feet long, twenty-two inches high and twenty-two inches wide, with two large wheels in front and one behind, along section one, he says he ran it into a vat by reason of one of its wheels running into a depression or worn place in the floor: In attempting to save himself from striking the vat with his head, appellant was jerked or fell to the floor, whereby he alleges he received the injuries for which he claims damages. Ho one but appellee saw the accident. He testifies: “My duty in this room was to see that it was kept clean and in good condition and to turn on and off the lights.” He had cleaned the passageway where the accident occurred between seven o’clock a. m. and half past nine a. m., the time at which it occurred, lie testifies:

“ This was my third load up section one that morning. I had trucked off and on for three days prior to the injury. I was going up section one; it was a hard push; I had my shoulder on the box pushing it; -about fifteen feet from the vat it came to an uneven place, a hole you might call it; the truck slid off and hit the vat and throwed me off my feet by my trying to catch myself to keep from hitting the corner of the box. That is where I got my injury, simply by slipping and falling down. The floor was slippery; my feet spread out. The truck hit a high place and slid off and hit the vat. * * * After making two trips and seeing the floor was dirty, I did not stop to clean it. * * At the place of the accident the light was pretty fair. * * * I did not see the hole until after the accident occurred. I could have seen it if I had noticed it. There were lights enough there, but I did not see it, simply because I did not notice it. I could have seen it when I swept if I had noticed it. * * * The hole was an inch deep; it, was worn in the floor. Around the hole, it was like other places in the floor; it was rough. I had seen all that when I swept the floor.. I did not call the foreman’s attention to it. A man with any eyes at all could see it. * * * I don’t know whether I could have kept away from that hole or not if I had known it was there. I went around that certain place the other two times. It was the usual place where these trucks were shoved. * * * The hole, or high place, or low place, whatever you call it, was on the, right-hand side of the passage-way;" it was about two feet wide.”

Canty, a fellow-laborer, called as a witness by appellee, testifies:

“I saw the place where this man was injured. There was a slope from the hole to the vat. The slope runs about middle way toward the vat. I saw this hole before and after the accident.”

Assuming that there were rough places and holes or depressions in the floor, as charged in the declaration, it is apparent from the nature of appellee’s employment for three weeks, in cleaning these passage-ways by pushing a scraper over them, not only daily, but several times a day, that he must have known their condition. He testifies that they were fairly lighted, and that “ any one with eyes could have seen the hole.” Cant}’-, a fellow-laborer, saw it before the accident. Yet appellee made no complaint and gave no notice. The risk of a loaded truck swerving, or slipping upon a depression in one side of its track, is not a risk that requires expert knowledge to detect. It would be as apparent to a common laborer who shoved trucks, as to his employer. If then, appellee, having knowledge of the condition of the floor, continued without notice or complaint to work there, shoving trucks over it, he must be held to have assumed the hazards of his work, and to have been guilty of contributory negligence. East St. L. Ice Co. v. Crow, 155 Ill. 74; Karr Supply Co. v. Kroenig, 167 Ill. 560; Swift & Co. v. Rutkowski, 67 Ill. 209; Stafford v. C., B. & Q. R. R. Co., 114 Ill. 247, and cases therein cited.

When defects are as well known to the servants as to the master, the servant will be held as voluntarily assuming the risks, unless coerced by the master to do the work in which they are incurred. C., B. & Q. R. R. Co. v. Smith, 18 Ill. App. 119; The Pennsylvania Co. v. Lynch, 90 Ill. 333.

We have considered the case thus far upon the assumption that appellant was negligent as charged in the decía,ration. These charges are, in substance, that appellant “ permitted the room to be insufficiently lighted, and the floor to be in a greasy, slick, defective and unsafe condition, with holes and uneven places in its surface.”

The testimony of appellee shows that the room was fairly lighted, he taking care of the lights himself. That from the work carried on, pickle and brine would be at times slopped on the floor, making it slippery, and that it was his duty to keep it clean. His testimony as to the immediate cause of the truck’s swerving from the track is not clear.

To use his language:

The hole was an inch deep. It was worn in the floor. * * * Around the hole, it was like other places in the floor; it was rough. I had seen all that when I had swept the floor. * * * The hole, or high place, or low place, or whatever you may call it, was on"'the right-hand side of the passage-way.”

Taking this description of the locality as given by appellee, it may well be doubted if it proves the negligence charged in the declaration. But conceding that it does, it clearly appears that appellee knew the conditions and accepted them without notice or complaint to appellant.

Under this state of facts appellee can not recover.

The abstract shows that exception was taken to remarks of counsel for appellee in his closing address to the jury. As this case is reversed upon other grounds, it is not necessary to quote said- remarks as they appear in the bill of exceptions. Suffice it to say, they were highly improper and tended to prejudice the jury, and in a close case, would of themselves be sufficient to cause a reversal. Judgment reversed.

Finding of Facts.; — We find, as an ultimate fact, that at the time of the injury appellee was not in the exercise of ordinary and reasonable care, and that his negligence contributed to the injury complained of. t


author:
Mr. Justice Worthington
      Mr. Justice Bigelow

text:
    D. Snively v. John F. Meixsell.
    1. Appellate Court Practice — Effect of Filing an Additional Abstract, — Where the first abstract filed is not sufficient, but a subsequent one filed by the appellant is, and confesses the omissions of the first one, the court will, in this instance, consider the case upon its merits, not holding, however, that the subsequent compliance with the rule relating to abstracts relieves the appellant from its violation in the first instance.
    2. Waiver — Of a Demurrer by Pleading Over. — A party who fails to abide by his demurrer by joining issue after it is overruled, must be held to have waived his rights under the demurrer.
    3. Fraud — By Vendee — Presumption.—A party selling property is presumed to know whether the representations he affirmatively makes in respect to it, are true or false; if he knows them to be false it is a positive fraud.
    4. Same — Untrue Representations of Material Facts.— An untrue representation of a material fact as one’s own knowledge, or recklessly made, not knowing whether it is true or not, is a fraud.
    5. Same — Expressions of Opinion. — Where an opinion is designedly false, or an advantage is taken of a party in a manner which is clearly oppressive, without negligence on the part of such party, there may be a fraud, although the statement is in the form of an opinion.
    6. Same — Atóse Statements as to Values. — False statements as to the value of property sold when relied upon by the vendee is a representation of a fact and not an opinion.
    7. Practice — Where the Defense of a Failure of Consideration May Be Made. — Where a false statement is made, although the party contracting may not have relied wholly upon such statement, but in fact may have relied upon it in part, and would not have contracted without it, the defense of a failure of a consideration may be made.
    Assumpsit, on a promissory note. Appeal from the Circuit Court of Saline County; the Hon. Prince A. Pearce, Judge, presiding. Heard in this court at the August term, 1901.
    Affirmed.
    Mr. Justice Bigelow, dissenting.
    Opinion filed September 4, 1901.
    Statement. — This is an action of assumpsit, brought by appellant against appellee upon a promissory note for the sum of $509.50, made by appellee, and payable to one Richard O. Collier, who, at the time of the delivery of the note to him, was agent of the Mutual Life Ins. Co. of New York.
    The note and five dollars were given October 2, 1897, as the first annual premium payment, on what the agent called a gold bond policy, that the evidence shows he stated could be used the same as a government bond, a's collateral security in any bank of the United States for half its face value, and that he, the agent, was the special agent of the company, and the only one who carried and could issue such a policy. Appellee testifies that he relied on such statement, that he wanted no insurance, and bought the-policy solely on that consideration.
    Before the maturity of the note, Collier indorsed it to appellant, who claims to have purchased it in good faith for a valuable consideration and without notice of any infirmities concerning it.
    To the declaration appellee filed the general issue and two special pleas. The first special plea avers that the defendant is not a bona fide purchaser of the note for value; that it was obtained “ by fraud and circumvention; ” that the payee of the note falsely and fraudulently represented to defendant that he would deliver to him a “ gold bond life insurance ■ policy,” written by the Mutual Life Insurance Company of New York, of such value and character that it would have, from the date of its issue, a value of §5,000 as collateral security. That when the policy was delivered to defendant it had no value as collateral security; that there was no consideration for the delivery of the note.
    The second plea avers that the note was obtained through fraud; that there was no consideration for the making of it; and that the plaintiff was not a bona fide purchaser for value, before maturity, and without notice of the defendant’s defenses. To the first special plea there was a demurrer Avhich the court overruled and plaintiff took issue on all of the pleas. The testimony of appellee shows that the policy was not delivered to him until ten days after he had made and delivered the note; that he attempted, after he got possession of the policy, to use it as collateral security for that amount, at the bank at Harrisburg, where he was told that the policy was useless for any such purpose. Appellee returned the policy to the general agents of the insurance company at Chicago, and it has never been returned to him. The trial of the case by jury, resulted in a verdict for the defendant. There was a motion by plaintiff for a new trial, which was overruled, and plaintiff excepted when judgment was rendered on the verdict.
    I. R. Spilman, attorney for appellant.
    Choisser, Whitley & Choisser, attorneys for appellee.
   Mr. Justice Worthington

delivered the opinion of the court.

Appellee insists that judgment should be affirmed for failure by appellant to state in the abstract that exception ivas taken to overruling motion for new trial and to rendition of judgment; also for failure to recite in full the instructions given and refused; and cites in support, Ettlinger Printing Co. v. Copelin, 76 Ill. App. 520; Dickinson v. Gray, 72 Ill. App. 55; Gibler v. City of Mattoon, 167 Ill. 18; Fireman’s Ins. Co. v. Peck, 126 Ill. 494.

We have no disposition to relax the rule as held in these cases, but as appellant has confessed the omissions by filing an additional abstract supplying them, Ave will consider the case upon its merits, not holding, however, that subsequent compliance with the rule relieves from its violation in the first instance.

In addition to the usual assignments of error, appellant assigns that the court erred in o\Terruling his demurrer to the second plea. As he did not abide by his demurrer, but joined issue, he must be held to have waived his demurrer. Gray v. Bangs, 138 Ill. 77.

The court gave for appellant, the following instruction :

“The court instructs the jury that it is the law that when a note is assigned before maturity for a valuable consideration, and without actual notice to the purchaser of facts and circumstances which might constitute failure of consideration, or fraud and circumvention in the procuring the execution of said note, then the defendant is not allowed to plead such failure of consideration, or such fraud and circumvention in the procuring the execution thereof, and your verdict should be made without regard to such defense.”

Ho instructions were given for appellee conflicting with the law as stated in the above instruction.

We must then conclude in limine, that the jury found that appellant was not a bona fide purchaser, and that the note was procured to be executed by false and fraudulent statements by the agent Collier, and without the consideration which induced its execution.

The evidence on this issue is conflicting. Collier testifies that it was assigned to appellant with other notes in the regular course of business; that he would send negotiable notes to appellant, who would make advances on them; that he owed appellant for advances, and gave him this note, with others, to apply on what he owed, appellant to charge such discount as he saw fit to charge, and that he received in such payment the full face of the note, less the discount, and was credited on his account for such amount. Appellant testifies that he knew Collier was an insurance solicitor; that Collier owed him for advances; that he received the note as his own and would lose the amount if not collected; that he did not keep an account on his books of the notes received from Collier; that his bboks do not show the Collier note sued on; that he did not give Collier credit on his books for the note; that he made no entry on his books except for cash; that on the advice of counsel he declined to produce his books; that he declines to state what Collier owes him; that their relations were of the most intimate character. Beggs, an attorney at San Jose, a witness for appellee, who talked with appellant in reference to this note, testifies that appellant said he had no agreement with Collier as to the terms under which he received or handled the notes; that he sent them off for collection; that he gave some of the money to Collier’s wife or family; that he did not know the notes were coming; that when money was received he credited Collier’s account, but had given no credit for the note. He said the notes were sent to him for collection.

From this evidence the jury must have found for appellee upon the issue involved under the instructions given as to the bona fide purchase of the note.

The evidence impresses us with the belief that the finding was right. If their finding upon this issue was right, appellant stands in the shoes of the payee of the note and is subject to any defense that might have been made if the payee had brought this suit.

The vital inquiry in the case then is, was the execution of the note procured through fraud and without consideration.

The testimony of appellant as to what was said to induce the execution of the note is in substance as follows, and not being contradicted, it must be taken as true: That appellant is a farmer, a timberman, and runs an electric plant; that Collier talked life insurance to him several times; that he told him he was carrying all the insurance he wanted and did not care for any more; that “ he kept following me round for several days and finally made me a proposition.” That he said he was the special agent; no one had the right or could issue a gold bond policy that he carried that could be used as collateral in any bank in the United States, but that he could. * * * That was what made me give the note. I would not have given it if it had not been for that. I was to get something, to be my own bondsman, and wasn’t to have to go to my friends to go on my bond. I was going to be my own banker, and he was the only man in the company that could do that; was special man for that purpose. His representations were just as I have stated. He "was to furnish me a gold bond that could be used as collateral security in any bank in the United States, for one-half its face, as soon as it was issued. * * * I relied on his statements or 1 would not have taken it. He said he was the only man that could do that; that he was a special agent for that purpose, the only man that could handle them.”

Question by the Court: “What did you understand was meant by a gold bond ? ”

Ans. “Just what he representedit tome to be, thatl could use it as collateral the same as I could a government bond. That is the representation that he made all the time, that it was as good as a government bond.”

Accepting this uncontradicted evidence of appellant as true, and adopting the conclusion that the jury must have come to, namely, that appellant ivas not an innocent purchaser for value, we have before us a suit brought upon a note procured to be executed by false and material statements, made by its payee. These statements were that he was a special agent of an insurance company, the only agent that “ carried such a bond and could issue it.” They were positive statements of the peculiar and exclusive authority of his agency and of the character and value of such bond. They were not opinions as to what would take place in the future. The representation was that he was then “the special agent, the only agent that could issue it,” and that “ I (appellant) could use it as collateral the same as a government bond in any bank in the United States.”

The fact that the gold bond policy was to be delivered in the future, did not relieve the transaction from the false statements as to his authority and its value and utility, nor did it protect the transaction from the legal effect of such fraudulent statements.

They were assertions by one who assumed to know, by one whom appellee had a right to believe did know, and were assertions of conditions then present and existing. Appellee acted upon them. The gold bond policy was not shown to him when he executed the note. He did not receive it until ten days afterward. When he took it to the bank to use it as collateral he found it was worthless for that purpose. This was the only purpose for which he testifies that he bought it, the sole consideration for which he testifies he executed his note.

Appellee then returned the policy to the insurance company, offering to pay for the short time it had run, and rescinded the contract. This he has a legal right to do by placing the other party in statu quo.

Fraud vitiates all contracts. Allen v. Hart, 72 Ill. 105, is a leading case. It was an action to recover the consideration paid after tendering back the deed which had been received. In it the court says:

" “ The fraud that vitiates this transaction consists in the untruthful representations as to the value of the territory. * * * This fact was known to the vendors at the time of the sale, and whether it was or not, it being in fact untrue, it was equally disastrous to the appellee. * * * It will not do to say those were simply expressions of opinion as to the value of the territory to be embraced in the patent deed. They were intended to be and were relied upon as assurance of its value, as an article of trade, and being false, it would be a reproach to the law if it did not afford the injured party redress.”

In Borders v. Kattleman, 142 Ill. 103, it is said :

“ A party selling property is presumed to know whether the representations he affirmatively makes in respect to it are true or false. If he knows them to be false, it is a positive fraud.” * * *

The court say in Hicks v. Stevens, 121 Ill. 197:

“ It is held in Allen v. Hart, 72 Ill. 104, that it is not indispensable to a right to rescind a contract, that the party making the representation knew it to be false, provided ft is material, and the other party had a right to rely upon it and did so ” — and that is believed to be sustained by the weight of authority.

To the same effect is Mexican Amole Soap Co. v. Clarke, 72 Ill. App. 658.

In Murray v. Tolman, 162 Ill. 423, the court quote with approval, Picard v. McCormick, 11 Mich. 68, as follows :

“ It is undoubtedly true that value is usually a mere matter of opinion, and that the purchaser must expect that a vendor will seek to enhance his wares and must disregard his statements of their value. But while this is generally the case, yet we are aware of no rule which determines arbitrarily, that any class of fraudulent representations can be exempted from the consequences attached to others. Where a purchaser, without negligence, has been induced by the acts of a cheating seller, to rely upon material statements which are knowingly false, and is thereby damnified, it can make no difference in what respect he has been deceived if the deceit was material and relied on. It is only because statements of value can rarely be supposed to have induced a purchase without negligence that the authorities have laid down the principle that they can not usually avoid a bargain. * * * It would be a deserved reproach to the law if it exempted any specific action when a fact is stated and relied on, whatever may be the general difficulty of defrauding by means of it.”

To the same effect and of the right to rescind are Baker v. Rockabrand, 118 Ill. 373; Neil v. Cummings, 75 Ill. 170; Hall v. Fullerton, 69 Ill. 450; Mitchell v. McDougal, 62 Ill. 500; Grimm v. Byrd, 32 Grattan, 293; Kent Co. R. v. Wilson, 5 Houston, 49; Pitts v. Cottingham, 9 Porter (Ala.), 675.

False statement as to value may be shown on plea of want of consideration. Cortel v. Schroeder, 48 Ill. 136; Day v. Milligan, 72 Ill. App. 333.

An unqualified affirmation amounts to an affirmation as of one’s own knowledge.” Bullitt v. Farrar, 42 Minn. 8; 6 L. R. A. 151.

An untrue representation of a material fact as of one’s own knowledge, or recklessly made, not knowing whether it is true or not, is a fraud. Bullock v. Farrar, supra; Criswold v. Gibbie, 126 Pa. 364; Erie City Iron Works v. Barber, 106 Pa. 125; Fisher v. Mellen, 103 Mass. 506.

Expressions of opinion, even, may constitute fraud.

It is said in note to Hedin v. Minn. Med. Ins., 35 L. R. A. 417:

“ The general rule is that a mere expression of opinion is not fraud. * * » There are, however, well defined exceptions to the rule. If the opinion is designedly false, or advantage is taken of the other party in a manner which is clearly oppressive, without negligence on the part of the latter, there may be fraud, although the statement is only in the form of an opinion.” Grimm v. Byrd, 32 Grattan, 293.

In Reeves v. Corning, 51 Fed. Rep. 774, it is said :

“ There is no certain rule by the application of which it can be determined when false representations constitute matters of opinion or matters of fact. Each case in a large measure must be judged upon its own circumstances.”

False statement as to the value of property, when relied upon, is a representation of fact and not an opinion. Crane v. Elder, 48 Kan. 259; Olvey v. Jackson, 106 Ind. 286; Busterud v. Farrington, 36 Minn. 320.

When the vendor, with superior means of knowledge, gives a false opinion, upon which the vendee relies, it is actionable fraud. Collins v. Jackson, 54 Mich. 186; Mont. S. R. Co. v. Matthews, 77 Ala. 357.

When a false statement is made, although the party may not have relied wholly upon the statement to induce the contract, but may have relied upon it in part, and would not have contracted without it, the defense of failure of consideration may be made. Ruff v. Jarrell, 94 Ill. 480; Safford v. Grout, 120 Mass. 20.

We think the testimony of appellant in the case at bar, even if the statement of the agent Collier is classed as an opinion, brings the case within the exceptions to the rule that opinions by a vendor as to value do not constitute fraud. His position as agent selling a gold bond policy, for whose sale he represented himself to be the special agent of the company, who alone carried and could issue such bonds, was such a representation as might reasonably induce his vendee to believe that he knew its peculiar value. The vendor and the vendee did not stand on the same plane. The vendee was a farmer; the vendor, according to his representations, was the special, trusted agent of a company to sell a gold bond policy of a peculiar value and utility. Such representations, whether called statements of fact, or expression of opinion, under the circumstances constitute such fraud as authorized the vendee to rescind the contract.

The point made by appellant that total or partial failure of consideration must be pleaded to assumpsit on a promissory note, is not pertinent in this case, as a failure of consideration is pleaded by appellee’s special pleas. While they may be open to special demurrer, yet, since appellant joined issue on them as pleaded, they must be held to sufficiently set up the defense they purport to state.

While some of the instructions for appellee are not accurately drawn, they do not conflict with those given for appellant, and the instructions as a whole substantially state the law.

The judgment will therefore be affirmed.

Mr. Justice Bigelow

dissenting.

I am unable to concur with the majority of the court in affirming the judgment in this case.

At the time the note sued on-was delivered to Collier, and for ten days thereafter, the policy of insurance was not in existence; therefore, what Collier said as to the use of it - as collateral security, could not have been said about any existing fact, but it was either a promise as to what the policy would contain or what its value would be. -To constitute fraud there must have been an assertion of an existing fact, with knowledge by Collier that it was false at the time the assertion was made. Even if Collier made the promise, as claimed by appellee, and knew that it never would be fulfilled and that he never' intended to fulfill it, such matters do not constitute fraud in this State, as the matter of fraudulent promise is not recognized in our jurisprudence. Gage v. Lewis, 68 Ill. 604; Kitson v. Farwell, 132 Ill. 327; Murray v. Smith, 42 Ill. App. 548.


author: Mr. Presiding Justice Creighton

text:
    John A. Bingham v. Elizabeth Spruill.
    1. Attorney’s Fees — Measure of Compensation. — Where there is no "agreement as to the amount to be paid to an attorney for his services he .will be entitled to a just compensation, to be determined by what is usually charged and paid for the same or similar services where contracts have been made with persons competent to contract, or if there is no " usual charge for the particular services rendered, then just compensation is, what is fair and reasonable under all the facts of the particular case.
    2. Instructions — Not to be Given in Duplicate. — It is not error to refuse an instruction where all that is material or of any value in it is fully embraced and clearly expressed in other instructions given in the same case.
    3. Interest — When Not Recoverable. — Where a party is to such an extent a trustee as to. make it his duty when a demand is made upon him for a statement as to the funds in his hands and to account for and pay over or tender to the person entitled to the same the amount due, and he fails to do so, interest may be recovered as reasonable damages, wholly independent of the provisions of the statute. -■

      4. New Trials — Cumulative Evidence. — Where the evidence relied upon as a ground for a new trial is wholly cumulative and by no means conclusive, it is not error to refuse the application.
    5. Same — Remittitur Where .the Damages are Excessive. — Where a plaintiff is clearly entitled to recover, and where there is no substantial ground for granting a new trial except that the damages assessed by the jury are excessive, the court may permit a remittitur of the excess and render judgment on the verdict for the balance.
    Assumpsit, for money had and received. Appeal from the Circuit Court of Fayette County; the Hon. William: M. Farmer, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    Henry & Houston and H. J. Hamlin, attorneys for appellant.
    Brown & Albert, attorneys for appellee.
   Mr. Presiding Justice Creighton

delivered the opinion of the court.

This was a suit in assumpsit, in the Circuit Court of Fayette County, by appellee against appellant. Trial by jury. Verdict in favor of appellee for $1,018.16. Remittitur, $318.16. Judgment on the verdict for $700.

Appellant is a practicing lawyer residing in Vandalia, the county seat of Fayette county, and appellee is an elderly widow lad}’- residing in the country, some miles. Appellee was in some sense a client of appellant, but appellant was in a much larger sense her agent and trustee. She deposited with appellant at various times, and there otherwise came into his hands for her, moneys, notes, checks and certificates of deposit, aggregating a large sum, which it was his duty to account to her for. These transactions Commenced in June, 1894. To the February term, 1900, of the Fayette Circuit Court, appellee filed her declaration charging that appellant had a large balance of her money in his hands and that he refused to account for and pay-over the same. To this declaration appellant filed the general issue with notice of set-off. The items of account and cross-account are quite j numerous, the cross-account containing many charges for commissions and legal services. The trial was lengthy and the record is voluminous, but the questions involved are almost wholly questions of fact.

The grounds relied on for reversal are : The rejection of certain evidence offered by appellant, the giving of the fourth instruction on behalf of appellee, the refusal of the fourth instruction asked by appellant, the giving of the fifth instruction on behalf of appellee, the refusal to grant a new trial on the ground of surprise and newly discovered evidence, and the rendering of judgment on the verdict for the sum remaining after deducting the amount remitted. The first three of these, pertain wholly to appellant’s claims for commissions and legal services, and may be treated together.

The law is, where there is no agreement as to the amount to be paid for such services, the attorney is entitled to just compensation. What is just compensation must be determined by what is usually charged and paid for the same or similar services where contracts have been made with persons competent to contract, or if there be no such usual charge for the particular services rendered, then just compensation is, what is fair and reasonable under all the facts of the particular case. Appellant’s counsel say the court erred in rejecting the scale of attorneys’ fees and charges fixed by the Vandalia bar association. While there may be cases in which such scale, if properlv proven, would be competent for some purpose, the record in this case wholly fails to disclose the preliminary proof, or the conditions, requisite. The fourth instruction given on behalf of appellee is substantially correct. It is fully supported by evidence, and meets all the requirements of the law, as we find it to be, and have herein above stated it. As to the fourth instruction asked by appellant and refused by the court, we find that all that is material and of any value in that instruction is fully embraced and clearly expressed in- appellant’s third instruction as given. These two instructions were upon the same theory and the same subject. The one given is as follows:

“ 3. The court instructs you in this case, that if you believe from, the evidence that the defendant performed for and rendered to the plaintiff legal services, and that there was an agreement between them, either before or after they were performed, as to the price or compensation for such services, then the defendant has a right to recover for such services at the agreed price.” * * *

Where two instructions are presented, covering the same subject, and presenting the same theory of the case, the court is not required to give them both, even if they be in different language and one be more elaborate than the other.

The fifth instruction given on behalf of appellee relates to interest, and appellant’s counsel contend that this case falls under the rule, “ where there is a running account between the parties, and where the balance has never been found and is a subject of dispute, no interest is recoverable.” To our minds the evidence does nob warrant this view of the case. The relations of appellant and appellee were not that of a tradesman with his customer, or of two tradesmen having unsettled accounts between them. Appellant was to such extent a trustee as to call for the application here, of the rules applied in such cases. It was appellant’s duty, when demand was made on him, to make a correct statement as to the funds in his hands and account for and pay over or tender to appellee the balance due her, and for his failure to do so, interest may be recovered as reasonable damages, wholly independent of the statutory provisions concerning interest.

The newly-discovered evidence relied on by appellant’s counsel as a ground for new trial is wholly cumulative and by no means conclusive. In such case it is not error to refuse a new trial on the ground of newly-discovered evidence.

Finally it is insisted that the court erred in permitting appellee to remit a part of the damages assessed by the jury and in rendering judgment on the verdict for the balance not remitted. Where a plaintiff is clearly entitled to recover, and where there is no substantial ground for granting a new trial, except that the damages assessed by the jury are excessive, then the court may permit a remittitur of the excess, and render judgment on the verdict for the balance. To our minds this record discloses such case.

We have fully considered every feature of this case and conclude that upon the whole, substantial justice has been done between the parties, and that the judgment of the Circuit Court should be affirmed.


text:
    C. J. Allen v. J. H. Henn and Mae Henn.
    1. Appellate Court Practice — Ara Index is Not an Abstract.— A paper document in which the pleadings and decree, covering fifty-pages, are not abstracted, but only referred to by pages, is an index and not an abstract, as required by rule 23 of this court, requiring a complete and indexed abstract of the entire record.
    2. Chancery Practice — The Certificate of Evidence Must Show that it Contains All the Evidence in the Case. — A certificate of evidence in a chancery proceeding must show that it contains all the evidence adduced at the hearing of the suit before the chancellor.-
    3. Sams — Certificate of the Official Reporter Will Not Suffice. — The certificate of the official reporter is not the certificate of the judge and can not be made to supply any deficiency in it.
    4. Same — A Party Benefited by a Decree Must Preserve the Evidence to Sustain it. — It is incumbent upon the party seeking to sustain a decree in his favor to preserve the evidence upon which it is based, in the record, in some proper form.
    5. Same — Evidence upon Which a Decree is Based — How Preserved. — There are various modes in which the evidence upon which a decree is based, maybe preserved in the record. Depositions on file become ipso facto parts of the record, and the same is true as to evidence reported by the master. Where evidence is heard in open court it must be preserved by a certificate of evidence; but where the decree recites the facts found by the court from the evidence, it will be presumed, in the absence of anything in the record to the contrary, that the facts thus found were proven by competent evidence.
    6. Sams — Preservation of the Evidence in the Record. — 'The averment of a fact found in the decree is conclusive unless contradicted in the record, and this can not be determined by a reviewing court without knowing that the record presents all the evidence heard by the chancellor.
    7. Sams — Presumptions in Support of the Decree. — In the absence of a certificate showing that all the evidence heard by the trial court is presented, it will be presumed that there was sufficient evidence to warrant and sustain the finding.

      Bill for Foreclosure and Cross-Bill for Belief. — Appeal from the Circuit Court of Clinton County; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the February term, 1901.
    Affirmed.
    Opinion filed September 4, 1901.
    T. E. Ford and Yan Hoorebeke & Louden, attorneys for appellant.
    Andrew L. Chezem and M. P. Murray, attorneys for appellees.
   Mr. Justice Worthington

delivered the opinion of the court.

This was a bill in equity, filed May 1, 1900, to foreclose a mortgage, dated November 27, 1899, on 290 acres, securing three notes of the same date, one for $1,100, due in one year; and two for $900 each, due two and three years after date, all bearing seven per cent interest, and given for a part of the purchase price for the land mortgaged. By their terms none of the notes were due when this proceeding was commenced. The right to foreclose was based upon the allegation that covenants in the mortgage to insure the buildings, pay the taxes, and not to commit waste, had been •broken, and that by the terms of the mortgage, for such breaches complainant had an option to declare all of the notes due, and to foreclose.

Appellees answered the bill, admitting the execution of the notes and mortgage, but denying a breach of any of the covenants.

They also filed a cross-bill, and an amended cross-bill, in which they allege specifically and at length, fraud and false representations by appellant as to the value and character of the land, and the timber and improvements on it, and allege that they were induced to buy by these false and fraudulent representations. Appellees further allege that they have already paid $3,300 in land and $400 in money, and that this is more than the land deeded to them is worth, and that the notes are without consideration and the mortgage a cloud upon the title. .

The answer to this cross-bill denies these allegations.

Replications were filed and these are the issues in the case.

The chancellor found that appellees owed appellant $12.40 for taxes paid by him, and ordered that sum to be paid by them to him, and in default that the land be sold. Upon all other issues the findings were against appellant, and as to these issues, the original bill was ordered dismissed. Upon the allegations of the cross-bill, specific findings of fact were made sustaining its allegations, and the notes and mortgage specified in the original bill were decreed to be null and void, and that they should remain in the files of the case. All costs were taxed against complainant, except five dollars, which were taxed against defendants. The case was heard by the chancellor in open court, upon documentary evidence and the oral testimony of some thirty witnesses.

' We do not enter into an analysis of the evidence in this opinion, as the case, as presented, is not in form under the rules of this court, to be considered on its merits.

The pleadings and decree, covering fifty pages, are not abstracted at all, but refer to the record by pages. This is indexing, not abstracting. Chamberlin v. Cary, 67 Ill. App. 542.

The abstract contains over one hundred pages and is not indexed. This is not in compliance with the rule. Rule 23 requires a complete and indexed abstract of the entire record.

Appellees also insist that the certificate of evidence does not state that all the evidence is presented that was heard by the court. The certificate is as follows:

“ And forasmuch as the matter and things above set forth do not fully appear of record herein, the complainant tenders this his bill of exceptions, and prays that the judge of the court may sign and seal the same according to the statute in such case made and provided, which is done accordingly this 18th day of July, A. D. 1900.

Truman E. Ames, (Seal) Judge Presiding.”

Following this certificate, on the next page, is this statement of the stenographer:

“ I, Carrie A. Eeed, official reporter in and for the county of Clinton and State of Illinois, do hereby certify that the above and foregoing is a true and correct copy of all my official notes taken in the trial of said cause; that this is the first transcript of the same; that this was ordered by the complainant, who paid me my fees for transcribing the same.

Carrie A. Reed, (Seal) Official Reporter.”

The certificate of an official reporter is not the certificate of the judge, but even this certificate of the reporter fails to state that she took notes of all the evidence that was heard by the court, or that her notes that were taken, were true and correct.

Appellant replies to the charge that the certificate is insufficient, by saying:

“ The record shows certificate of what purports to be all the evidence in the case, and if there was other evidence, appellee, who is seeking to sustain his decree, should have preserved same, and had it in the record in some form.” Citing Johnson v. Sackett et al., 146 Ill. 646.

We think an inspection of the certificate does not show that it purports to contain all the evidence, but clearly shows that it does not so purport. ¡Neither does the case cited by counsel for appellant sustain his position. It is said in it:

“ The record contains no certificate of evidence, but the depositions of various witnesses are on file, and there is also on file the report of the master to whom the cause was referred to take proofs, etc. * * * There is no affirmative recital that the transcript contains all the evidence adduced at the hearing, and the decree recites that the cause was heard on the pleadings, the report of the master, and upon written, documentary, record, oral and other proofs heard in open court. * * * It is well settled that in proceedings in chancery it is incumbent upon the party seeking to sustain a decree in his favor, to preserve the evidence upon which it is based, in the record, in some proper form. * * * But there are various modes in which the evidence may be preserved in the record. Thus depositions on file became ijpéo facto parts of the record, and the same is true of evidence reported by the master. * * ^ When evidence is heard in open court, it must be preserved by a certificate óf evidence, but where the decree recites the facts found by the court froto the evidence, it will be presumed, in the absence of anything in the record showing the contrary, that the facts thus found were proven .by competent evidence.”

In the case at bar, the chancellor recites in the decree his findings of fact upon which it is based. It shows that the case was heard upon the pleadings and the testimony of witnesses in open court. The findings of fact, if correctly found, are sufficient to warrant the decree. It was not necessary, then, for appellee, in the first instance, to supply other evidence to sustain a decree from which appellant appeals. The averment of fact in the decree is conclusive unless contradicted by the evidence in the record, and this can not be determined by a reviewing court without knowing that the record presents all the' evidence heard by the chancellor. Cooley v. Scarlett, 38 Ill. 316; Allen v. LeMayne, 102 Ill. 27.

In the absence of a certificate that all the evidence is presented that was heard by the trial court, it must be presumed that there was sufficient evidence to warrant and sustain the finding. Brown et al. v. Miner et al., 128 Ill. 148; First Nat. Bank v. Baker, 161 Ill. 283.

In the absence, then, of a certificate that all the evidence is presented in the record, and for the reasons herein stated, the judgment of the court is affirmed.

It may not be out of place, however, to say in addition, that we have examined the evidence as presented in the abstract, and from such examination are of the opinion that no injustice has been done complainant. Judgment affirmed.


author: Mr. Justice Creighton

text:
    William H. Hauskins v. Nelson D. Pike et al.
    1. Decrees — Of the Ohaneellor on Conflicting Evidence. — Where the evidence taken in open court is conflicting, but the chancellor sees and hears the various witnesses, his findings will not be disturbed on appeal, unless they appear to be clearly and palpably against the weight of the evidence.
    2. Same — Effect upon Persons Not Parties. — The interests of persons who are not parties to a proceeding in chancery, are not affected by any decree rendered by the court.
    Bill for an Injunction. — Appeal from, the Circuit Court of Madison County; the Hon. Martin W. Schaefer, Judge, presiding. Heard in this court at the August term, 1901.
    Affirmed.
    Opinion filed October 31, 1901.
    John G. Irwin and E. Breese Glass, attorneys for appellant.
    Travous, Warnock & Burroughs, attorneys for appellees; Geo. D. Burroughs, pro se.

   Mr. Justice Creighton

delivered the opinion of the court.

This was a bill in chancery, in the Circuit Court of Madison County, by appellant against appellees, to enjoin appellees from selling certain of appellant’s real estate upon execution, pursuant to levy, and to restrain appellees from taking any steps to enforce payment of a certain judgment against appellant and another. A temporary injunction was granted, which, upon motion, was dissolved; the sale was consummated, and thereafter the bill was amended, setting up the sale and praying for injunction against the execution of a deed, at the expiration of the period of redemption, and that the sale be set aside and the certificate of sale canceled. Upon final hearing the Circuit Court rendered a decree dismissing appellant’s bill.

On January 10, 1891, one .Charles Ryder, and his wife, Mary E. Ryder, and appellant, for a valuable and lawful consideration, executed their joint and several promissory note to appellee Pike, for the sum of $800, due two years after date, bearing interest at the rate of five per cent per annum. In addition to the payment of interest as it accrued, $200 of the principal had been paid, when Charles Ryder died, testate, leaving his widow, Mary E. Ryder, as his principal legatee and devisee. She was also the executrix of his will, and his estate was solvent. Appellee Pike presented the note against Ryder’s estate and obtained judgment for $680, and thereafter he sued, and obtained judgment, in the Circuit Court of Madison County, against appellant and Mary 1ST. Byder, the two surviving makers of the note, for the sum of $636, the amount then due. The law firm of Travous, Warnock & Burroughs were and had been attorneys for Mary N. Byder in her individual matters and also for her as executrix of her husband’s estate, and while said firm sustained this relation to Mrs. Byder, appellee Burroughs, a member óf that firm, purchased from appellee Pike, the above mentioned judgments, and caused execution to issue against both defendants, on the one in the Circuit Court. The execution came duly into the hands of appellee Hotz, who was then sheriff of Madison county, and was by appellee Stubbs, a deputy sheriff, duly levied on appellant’s real estate.

At this stage appellant filed his bill charging, in substance, that after the rendition of the judgment in the Circuit Court, the said M. N. Byder, she being at that time executrix of the will of said Charles Byder, deceased, and his principal legatee and devisee, and the co-surety of the complainant for the indebtedness represented by the said judgment, paid or caused to be paid to the said Nelson D. Pike the full amount of said judgment,together with the interest thereon and the costs, whereby, as your orator is advised and verily believes, the said judgment was extinguished and satisfied as against him; but the said M. N. Byder, intending to cheat and defraud your orator, instead of having the said judgment satisfied upon the record, procured the assignment of the same to one George D. Burroughs, who was then acting as her attorney, and as attorney for the estate of the said Charles Byder, deceased, who, after the assignment of said judgment to him, caused execution to be issued and levy to be made, and threatened sale of appellant’s real estate; that the said George D. Burroughs is not an innocent nor bona -fide purchaser of the said judgment, or of the claim thereby represented; that he did not buy it with his own money, but, on the contrary, that the money paid to the said Nelson D. Pike to obtain the assignment of the same was furnished and supplied to him by the said M. N. Byder, the co-surety of the complainant, and the executrix of the will of the said Charles Byder, deceased, and that the procuring of an assignment of the said judgment to the said George D. Burroughs was a fraudulent contrivance and device to enforce payment of the debt represented by said judgment by your orator, unjustly and unlawfully, to the end that the said M. B. Byder and the estate of the said Charles Byder may escape payment thereof, to the advantage and benefit of the said M. B. Byder, and that your orator may be left without recourse to obtain satisfaction, if compelled to pay the same; the purpose and intention of the said M. B. Byder and George D. Burroughs being, after compelling payment of said judgment and execution by your orator, to defend any claim filed by him against the estate of the said Charles Byder, deceased, on account of the same, and to defeat it by objecting to the competency of complainant as a witness to prove the same.

The bill then proceeds to allege that Burroughs had full notice before he took the assignment of said judgment that appellent claimed to be a surety, and that M. B. Byder was also a surety upon the Pike note, and advised the taking of the assignment for the objects and purposes above set forth; that in law and in fact, when the said judgment was paid and satisfied as to Pike, it was paid and satisfied as to appellant, who was released thereby from further liability upon the indebtedness represented thereby, and that the attempt to keep the same alive and to„enforce said judgment against appellant, is a fraud upon him, and that he is therefore entitled to the relief prayed.

Beither Mary B. Byder, the alleged co-surety, nor the estate of the deceased co-maker, Charles Byder, are parties to this proceeding. In such state of record no decree could have been rendered by the trial court affecting them or their interests. Appellee Pike has no interest in the subject-matter of the suit. Appellees Hotz and Stubbs, sheriff and deputy sheriff, are not charged with any irregularity or wrong on their part and have no independent status in the case, but depend upon that of appellee Burroughs, and his depends wholly upon whether he was in fact, in his own right, a Iona fide purchaser of the judgments from Pike. Upon this question the most favorable view of the case that can be entertained for appellant is* that the evidence is conflicting. Where the evidence was taken in open court and the chancellor saw and heard the various witnesses, as in this case, the findings of such chancellor will not be disturbed on appeal, unless they appear to the Appellate Court to be clearly and palpably against the weight of the evidence, and such is not the case here.

It is contended that the court erred in rejecting certain evidence. Appellant offered to prove statements made by Mary E. Ryder concerning the money with which Burroughs bought the judgments. It is not claimed that these statements were made in the hearing of Burroughs, nor that they were in any manner brought home to him. Mary E. Ryder, who is said to have made the statements, is not a party to this suit, nor did she testify as a witness in the case. Under the existing state of case, statements made by her could not be properly received in evidence for any purpose. A state-_ me;nt of appellee Pike and much other evidence was offered by appellant tending to prove that appellant was a surety on the note and that his deceased co-maker was principal, and that both Pike and Burroughs knew this. If we assume that there is sufficient evidence in this record to establish the conspiracy charged in the bill and the mala fides of Burroughs to the extent in the bill charged, then the proffered evidence would be material; but as we concur with "the trial court in the opposite view of the evidence on these controlling questions, we do not regard the rejection of this evidence as of any grave consequence.

If Pike had not assigned these judgments, and they had remained unpaid, it is conceded that he might lawfully have sued out execution and caused it to be levied on appellant’s real estate in all respects as was done in this case. Row Burroughs, as a Iona fide purchaser of such judgments, succeeded to all the rights of Pike, and he owed appellant no . duty that Pike would not have owed him if Pike had retained the ownership and control of the judgments.

Appellant’s counsel insists that the purchase of these judgments by Burroughs was champertous and for that reason void. This position, like a number of others argued, is based upon the assumption that the proof establishes the conspiracy and fraud charged in the bill, or that it establishes “ an officious intermeddling in a suit that no way concerns the meddler.” As above stated, we concur in the conclusion of the trial court that the controlling charges in the bill are not proven, and we hold that the purchase of a judgment under the circumstances of this case is not champertous. We find no error in this record warranting a reversal.

The decree of the Circuit Court is affirmed.


text:
    Franklin Life Ins. Co. v. Rosa Hickson.
    1. Corporations — Effect of the Consolidation of Insurance Companies. — The consolidation of one insurance company with another does not affect suits pending in which such companies are parties, nor does such consolidation affect causes of action or rights of persons in any particular, nor do suits brought against such consolidated corporation by its former name abate for that cause.
    2. Consolidation op Corporations — Liability of the Consolidated Company. — Under the statute (R. S., Ch. 32, Sec. 65, Hurd’s Ed. 1899, p. 445) in all cases where a corporation, chartered or organized under the laws of this State, consolidates its property, stock or franchises with another corporation or corporations, the consolidated company is liable for all the debts or liabilities of each company included in' such consolidation, existing or accrued prior thereto; and actions thereon may be brought and recoveries had against such consolidated company.
    3. Practice — Amendments of Papers in Suits Commenced Before Consolidation. — It is proper, under the statute (R. S., Ch. 7, Hurd’s Ed. 1899, p. 142), to allow amendments of papers in suits commenced against either of the constituent companies before consolidation, so as to make the consolidated company the defendant in the case, and to allow the dismissal of the suit as to the constituent company made defendant in the suit as originally commenced.
    4. Same — Progress of Suits After Amendment, Against the Consolidated Company. —After the amendment of the papers in a suit originally commenced against a constituent company the suit proceeds against the consolidated company and further proceedings against the constituent company are unnecessary.
    5. Same — Waiver of the Right to Object to the Jurisdiction. — Where a party is sued out of the jurisdiction of the court, he may waive the right to object, and by pleading to the action, give the court jurisdiction.

      6. Waiver — Of Error in Overruling a Motion to Dismiss for Want of Jurisdiction — Practice.—Where a motion by the defendant to dismiss for want of jurisdiction of parties is improperly overruled, and by subsequent pleading the defendant enters his appearance, the error in overruling the motion is waived; otherwise, when a demurrer to a plea in abatement for want of jurisdiction of parties is improperly sustained and followed by an interlocutory judgment quod respondeat ouster.

    Assumpsit, on a policy of insurance. Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the August term, 1901.
    Affirmed.
    Opinion filed October 31, 1901.
    Statement. — The Franklin Life Association issued a policy of insurance to John Hickson of East St. Louis, dated August 29, 1894, payable to Eosa Hickson, his wife. ■ He was killed December 2, 1896, in the stock yards at East St. Louis, the policy then being in full force and effect.
    Upon the death of Hickson, Dr. Porter, who had examined him when he applied for insurance, gave to one Egg-man, a notary public, blank proofs of death to be taken by him to appellee to be filled up and returned to Porter. Eggman took them to appellee, where they were made out and sworn to by her and returned by him to Porter. Ho objections were made to such proofs.
    The home office of the company was at Springfield, Illinois. The policy was signed by D. T. Littler as president and T. 0. Eoseberry as secretary. It provides that no suit shall be commenced after one year from the death of the assured.
    On July 6, 1898, the Franklin Life Association and the People’s Life Insurance Company were consolidated according to the provisions of the statute, under the name of the Franklin Life Insurance Company, having its home office at Springfield. The first summons was issued against the Franklin Life Association Hovember 24,1897, and directed to the sheriff of St. Clair county. It was returned December 27th, “Ho agent or officer of the within company found in my county.” Alias summonses were issued from time to time from this date up to March 7,1900, but were either quashed for some reason or their effect defeated by pleas of abatement denying the agency of the parties served. March 7, 1900, plaintiff obtained leave to amend her declaration by making the Franklin Life Insurance Company a co-defendant, and on August 15, 1900, filed her amended declaration. On November 19, 1900, summons was issued against the Franklin Life Association, and the Franklin Life Insurance Company, directed to the sheriff of Sangamon county.
    The sheriff made return that on the 5th day of October, 1900, he served the Franklin Life Association by reading and leaving a copy, etc., with T. C. Eoseberry, secretary of said company, the president not being found in my county.
    He also made a similar return of service upon the Franklin Life Insurance Company, by reading and leaving a copy with T. C. Eoseberry, its secretary, the president not being found, etc. This summons, with the return, was filed November, 30, 1900.
    Both defendants moved to quash the service of this summons for the reasons, first, that “ it was directed to the sheriff of Sangamon county in the State of Illinois, commanding him to serve the said defendants if they can be found in said city; second, because the service was beyond the jurisdiction of the court.”
    This motion was filed November 30, 1900. Page .61 of the record shows the following entry: “ And on the 3rd of Dec., 1900, leave is given plaintiff to amend summons and defendant enters special appearance for the purpose of quashing summons and servióe, which motion is by the court taken under advisement.”
    December 10th, the motion was overruled, and a rule entered upon defendant to plead by the third Monday. On December 17th, the Franklin Life Association filed its plea in abatement denying that T. C. Eoseberry, upon whom service was had in Sangamon county, was its agent. December 17, 1900, appellant demurred to the amended declaration.
    January 3, 1901, plaintiff dismissed as tó the Franklin Life Association, and on January 9th, filed her second amended declaration.

      Up to this time all appearances by both defendants, the same attorneys representing both defendants, had been limited to the special purpose of their motions or pleas, except the demurrer filed December 17th, by the Franklin Life Insurance Company, to the first amended declaration. The appearance by this demurrer was not limited and was therefore a general appearance.
    The case was tried upon the second amended declaration, filed January 9,1901, which is in substance:

      “ Eosa Hickson complains of the Franklin Life Insurance Company, defendant, and states that the Franklin Life Association, by its policy of insurance, undertook and agreed to pay to the plaintiff the sum of one thousand dollars within ninety (90) days after it was furnished with satisfactory of the death of John Hickson, the plaintiff’s husband.
    That while said contract of insurance was in force, on the 2d day of December, 1896, John Hickson lost his life by being run over by a railroad car; that ■«thereupon satisfactory proof of the death of John Hickson was, by the plaint-' iff, furnished to the said Franklin Life Association, on or about the 31st day of December, A. D. 1896, and that said Franklin Life Association waived all further proof of the death of the said John Hickson) and refused to pay the amount of said policy'to the plaintiff; that thereupon the said Franklin Life Association became liable to pay to the plaintiff the sum of one thousand dollars ($1,000) to wit, ninety days after December 31st, A. D. 1896.
    And the plaintiff further avers that after said liability of the said Franklin Life Association to the plaintiff became due, the said Franklin Life Association and the People’s Life Insurance Company became consolidated as the defendant, the Franklin Life Insurance Company, a corporation created by virtue of the laws of the State of Illinois, and thereby the Franklin Life Insurance Company assumed the liabilities of the Franklin Life Association, including the liability and cause of action heretofore stated.
    Wherefore the said defendant, in consideration of the premises aforesaid, assumed and undertook and promised to pay to the plaintiff the face of the said policy, and interest, yet they have refused and still refuse to pay the same,” etc.
    To this second amended declaration, appellant on January 11, 1901, filed a demurrer, general in form, but containing, this special allegation:

      “ And for a further reason, because there is no joint liability on the part of the defendant, The Franklin Life Insurance Company, with the said Franklin Life Association, and this the clef end ant, The Franklin Life Insurance Company, is ready to verify.”
    With reference to both demurrers the record shows as follows:
    “And now, on the 12th day of January, 1901, the defendant withdraws demurrer to amended declaration, and second amended declaration filed and demurrer filed to same, which is by the court overruled, whereupon defendant files its motion for dismissal of the cause, and same taken under advisement.”
    The grounds for this motion, which was filed January 12, 1901, appearance not limited, are as follows:
    “ This cause was originally begun on the 2-±th day of . November, A. D. 1897, by Eosa Hickson against the Franklin Life Association, as will appear from the prascipe filed on that date and the declaration filed in said cause, filed on the 13th day of August, A. D. 1896. Afterward, to wit, on the 7th day of March, A. D. 1900, the said plaintiff, Eosa Hickson, by leave of the court, amended her said cause by making this defendant, the Franklin Life Insurance Company, a co-defendant with the said Franklin Life Association, and afterward, by leave of the court, on the 15th day of August, A. D. 1900, filed her amended declaration in this cause against the said Franklin Life Association and the Franklin Life Insurance Company; and afterward, on the 3rd day of January, A. D. 1901, the said plaintiff, Eosa Hickson, dismissed her cause of action against the only original defendant in said suit, The Franklin Life Association, and now this defendant, The Franklin Insurance Company, asks that this Cause be dismissed as to it.”
    On January 21st, this motion was overruled. January 31st appellant pleaded the general issue, and a plea of limitation, which set up the following clause in the policy:
    “It is expressly understood and agreed that no action shall be maintained, nor recovery had, for any claim upon or by virtue of this contract after the lapse of one year from and after the death of the herein named member, and should no suit or proceedings for such recovery be commenced within one year, it shall be deemed a waiver on the part of all parties concerned, and conclusive evidence against the validity of such claim, and this contract shall be null and void and of no effect.”
    It then avers that the said John Hickson died on the 2d day of December, A. D. 1896; that no action was instituted against this defendant, The Franklin Life Insurance Company, to recover for any claim upon such policy until the 7th day of March, A. D. 1900, at which time said policy had lapsed and become null and void, and by reason thereof the said Eosa Hickson is barred from all right or claim by virtue of said contract, and this the defendant is ready to verify. Wherefore it prays judgment.
    Appellee, April 23d, replied to this plea in substance :
    “That she commenced her action against the Franklin Life Association within .one year after the death of the assured.
    That said action was pending against the Franklin Life Association up to and after the 5th day of July, A. D. 189G, to wit, to and after March 7th, A. D. 1900.
    That on the 5th day of July, A. D. 1898, while said cause was so pending, the Franklin Life Association consolidated with the People’s Life Insurance Company and became a constituent part of the consolidated insurance company, as and under the name of the defendant, The Franklin Life Insurance Company, which said company then and there became liable by virtue of the statute of Illinois for the cause of action sued upon.
    Wherefore plaintiff avers that she did commence her action for the recovery of the cause of action set forth in her second amended declaration within one year after the death of the assured, and said special plea sets forth no defense to this action, and of this the plaintiff puts herself upon the country.”
    We find no rejoinder to this replication by appellant, and no joinder by appellee to the plea of the general issue. But as the case proceeded to a hearing upon the pleadings filed, it will be treated as if the issues had been formally made.
    On May 3d the parties waived a jury and a trial was had by the court resulting in a judgment for appellee for $1,204 and costs, from which defendant appealed.
    Alfeed Oeendoef and Kramer, Creighton & Shaeffee, attorneys for appellant.

      A. E. Taylor and Freels & Joyce, attorneys for appellee.
   Mr. Justice Worthington

delivered the opinion of the court.

We have recited the preliminary proceedings in this case at some length, owing to the claim made that the court did not have jurisdiction of the Franklin Life Insurance Company. The defense disclosed by the record is technical and without equitable merits. The Franklin Life Association insured John Hickson’s life for the benefit of Eosa Hick-son. He was killed while the policy was in full force and effect. We are satisfied from the evidence that the proofs of death were furnished to one acting as an agent of the association, and that no objections were made to them. It is true that there is no direct evidence that Dr. Porter, who received the proofs of death from appellee, was at that time an agent of the Franklin Life Association. But in the absence of any conflicting testimony there were circumstances from which the jury was warranted in finding that he was an agent. He had examined Hickson for the company when he applied for insurance and had in his possession blank proofs to be used in case of death, which he gave to Eggman, a notary public, to be taken to appellee and filled up, and directed that when filled they should be returned to him. In pursuance of his action and directions they were so taken to her and when completed were returned to him. The association paid nothing on the policy, and appellee brought suit against it within one year after the death of the insured.

The statute under which these insurance companies were consolidated and the Franklin Life Insurance Company thereby formed, provicj.es that the consolidation of one corporation with another shall not affect suits pending in which such corporation or corporations shall be parties, nor shall such changes affect causes of action, nor the rights of persons in any particular, nor shall suits brought against such corporation by its former name be abated for that cause. Rev. Stat. Ill., Chap. 32, Sec. 56.

Section 85 of said chapter 32, of said statute, says:

In all cases when any company or corporation, chartered or organized under the laws of this State, shall consolidate its property, stock or franchises with any other company or companies, such consolidated' compa/ny shall be liable for all debts or liabilities of each company included in said consolidated company existing or accrued prior to such consolidation; and actions may be brought and maintained, and recovery had therefor against such consolidated company.”

If, then, at the time of the consolidation, the Franklin Life Association owed appellee on the policy issued to her husband, the Franklin Life Insurance Company assumed its payment.

On behalf of appellee the following propositions were asked and were held by the court:

First. That this court had power in this case to send its process to Sangamon county for service, by force of the statute in relation to service upon insurance companies.

Second. That the service by the sheriff of Sangamon county in this case was legal.

Third. That it was entirely proper under the statute relating to amendments to allow the defendant, as successor of the Franklin Life Association, to be made a defendant in this case, and to dismiss as to the Franklin Life Association after defendant was made party.

Fourth. That after the consolidation of the People’s Life Insurance Company and the Franklin Life Association, into the defendant, it was necessary to recover against the defendant on the policy sued on, and further proceedings against the Franklin Life Association were not necessanL

Fifth. That the suit having been brought against the Franklin Life Association within one year after the death of the assured, the limitation of one year in the policy can not apply, because defendant was not in. existence to be sued for more than one year after the death of the assured.

Sixth. The evidence shows that proofs of death were furnished the Franklin Life Association within three weeks after the death of the assured, and the policy became due and payable ninety days thereafter, to wit, March 22, 1897; from which date interest at the rate of five per cent per annum should be computed to date, May 18th, four years, one month and twenty-eight days, to wit, $1,208, for which sum judgment should be rendered.

Seventh. That this court has jurisdiction of the parties and subject-matter.

Eighth. There is no statute bar.

We find no reversible error in the propositions held for plaintiff, or in the refusal of those asked for by defendant; but in so finding, do not pass upon the first two propositions, holding as we do, that the court acquired jurisdiction by defendant's pleading to the merits. The refused are in substance the converse of those held.

If proof of death was furnished to the Franklin Life Association, it was not necessary that it should be again furnished to the Franklin Life Insurance Company. So far as such proof was necessary to fasten liability upon the Franklin Life Association, it had done its work. The consolidated company assumed the burden of the liability of the Franklin Life Association as it found it. Flo new duties or conditions were imposed upon the holder of a policy" by reason of the consolidation. If such holder complied with the conditions of' his policy, he did all that was required of him by his contract, and his beneficiary was entitled to recover against the company that issued the policy. If she could recover against it, she could recover against its successor, who assumed its liabilities and stood in its shoes.

What is said in reference to furnishing proof of death, applies to the clause in the policy limiting the bringing of a suit to one year after the insured’s death. When suit was commenced against the Franklin Life Association within the year succeeding the death of appellee’s husband, she complied with the provisions of the policy. She could not have brought suit against the consolidated company within said year, because it had no corporate existence until after the expiration of the year. So far as bringing suit within the year fixed the liability of the Franklin Life Association, it also fixed the liability of the consolidated company. There was then no error in holding that the suit against appellant was not barred by the year limitation clause.

Counsel for appellant say in their brief that “ the court erred in permitting appellee to amend her cause of action by making appellant party defendant and then dismiss as to the original defendant without an}*- provision as to the costs made and incurred at the time of such amendment.”

As such action of the court is not assigned for error, we are not called upon to consider it.

Counsel for appellant also urge that the suit against the Franklin Life Association did not abate by reason of the consolidation of this company with the People’s Life Insurance Company, and that plaintiff should have prosecuted her suit to a conclusion.

It is true that appellee’s suit did not abate by reason of the consolidation. Sec. 56, Chap. 32, sxvpra.

But this is no reason why plaintiff could not dismiss her suit against the original defendant. It had become by its own act in consolidating, a mere shadow, a name without place or property. By its articles of consolidation, it had on July 6, 1898, declared “ that the functions and duties of the officers and board of directors of the Franklin Life Association * * * shall, upon the full performance of , the said consolidation, cease and determine.”

Why should appellee have continued to prosecute a corporation whose officers or directors had by its joint action with appellant been'deprived of authority to discharge any function or perform any duty ? And why should she not prosecute its legal successor, who had received its property and assumed its liabilities, and whom the statute explicitly states may be sued on such liabilities ? Sec. 65 and Sec. 56, Chap. 32, sxvpra.

Section 1 of chapter 7, and section 23 of the practice act, Statutes,supra, authorize amendments “in form or substance for the furtherance of justice.” They are broad enough in a case like this to allow the substitution of a real defendant for the shadow of a defendant. It is a refinement of technicality for the real defendant to insist that the original defendant'should have" been prosecuted toa conclusion, when efforts to bring the original defendant into court had been made from November 26, 1897, to January 3, 1901, only to be defeated by motions to quash summons or returns, or by pleas in abatement denying the agency of parties • served;' and this done, too, by the same attorneys, acting for both defendants, limiting their appearance for these special purposes only. We think there was no error in permitting the amendment which made appellant a party defendant to the suit and in dismissing against the original defendant, who by the action of appellant in the consolidation, had become a mere nominal defendant.

Counsel for appellant seem to rely most strongly as a ground of defense, upon the proposition that the City Court of East St. Louis could not send its process to Sangamon county, and that consequently it was without jurisdiction to try the case. It is also insisted that, having filed its motion November 30, 1900, to quash the service of summons upon appellant and upon the Franklin Life Association because summons was sent to Sangamon county, which motion was overruled, advantage can be taken of such motion, although a general appearance of appellant was entered by subsequent pleadings. To support this position appellant cites Weld v. Hubbard, 11 Ill. 574. This case holds that “ a defendant by pleading in bar after a demurrer has been sustained, to a plea in abatement, does not thereby waive his rights under its plea in abatement, but may assign for error the decision of the court sustaining the demurrer.” This case cites Delahey v. Clement, 3 Scammon, 201. A reference to this latter case shows the reason of the decision to be, that upon sustaining a demurrer to a plea in abatement the judgment is “quod respondeat ouster.” As the court expresses it, such judgment “ is the order and judgment of the court, without the request of the defendant, that he answer over. In complying with this order, it is not perceived how a party can be said to abandon his plea or waive his right to a correct decision upon his plea.” In other words, a subsequent plea is not a voluntary plea, but is made under the order of the court, and is not, therefore, an appearance in the case. In Galveston City R. R. Co. v. Hook, 40 Ill. App. 557, the court say:

“ Of course if the defendant filed the general issue voluntarily, and not in obedience to a judgment of the court to plead over, his act was a waiver of any defects in the service of summons, and it would even obviate the necessity of the service of any process at all.”

This court in Mt. Olive Coal Co. v. Hughes, 45 Ill. App. 566, in discussing this question said :

“ The confusion on the question seems to arise from failing to note the distinction made in the decisions as to causes where some action or step was taken by the defendant before filing such plea, which recognized the lawful pend-ency of the suit, or after filing the plea, as by pleading to the merits, or demurring to the declaration, or moving for a rule on the plaintiff to give security for costs whilé such plea was undisposed of, and cases where such pleas had been filed, but was not pending owing to the judgment of the court in striking it from the files or sustaining a demurrer to it. In the former class of cases the courts uniformly hold that such action waives the right to file such plea, or if filed, waives the right to insist upon it, while in the latter class of cases, they as uniformly hold that pleading to the merits does not waive the right to assign error on the action of the court in disposing of such plea.”

This is true because in the former class of cases the defendant would voluntarily plead without being ordered to do so, his demurrer not having been disposed of.

In the case at bar, appellant moved to quash the service by the sheriff of Sangamon county for the reason that the service was beyond the jurisdiction of the City Court of East St. Louis, and claims that the same practice applies in overruling this motion, before pleading in bar, as would apply in sustaining a demurrer to a plea in abatement. But the reason for so holding upon a plea of abatement, namely, the interlocutory judgment of the court that the defendant should plead over, does not apply to overruling a motion to quash service. In such case there is no such interlocutory judgment. If the defendant demurs or pleads after his motion to quash is overruled he does not do so by order of the court but does so voluntarily.

It is true that the record shows that upon overruling appellant’s motion to quash service, that a rule was taken upon appellant to plead by the third Monday. But this was not in the nature of an interlocutory judgment “ quod respondeat ouster.” It was, in effect, extending the time to plead until the third Monday, but fixing that date as the limit of extension. Appellant could have abided by his motion if he saw fit to do so. But he did not so conclude, and chose both to demur to the declaration, and to plead in bar. By so doing he waived any advantage by reason of this motion, and by so pleading, entered a general appearance and gave the court jurisdiction.

When a party is sued out of the jurisdiction of the court, he may waive the right to object, and by pleading, give the court jurisdiction. Humphrey v. Phillips, 57 Ill. 136; Drake v. Drake, 83 Ill. 526.

In this view of the law, it is not necessary to discuss the claim by appellant that the trial court did not acquire jurisdiction by sending its process to Sangamon county.

Finding no substantial error in the record, the judgment of the Oity Court of East St. Louis is affirmed.