author: Me. Justice Seabs

text:
    Ezra Kendall v. William H. West.
    1. Contracts — Services to be Satisfactory — Insubordination.—Where a contract of employment contains a provision that the services to be rendered shall be satisfactory to the employer, the fact of insubordination on the part of the employe in refusing to comply with his reasonable requests will of itself justify the termination of the contract.
    3. Same — Refusal to Obey Reasonable Orders. —Refusing to obey the reasonable orders is a good ground for the dismissal of an employe, for in every contract of hiring there is an implied undertaking on the part of the employe to obey the lawful and reasonable commands of his employer.
    8. Same— What is a Refusal to Obey Orders of an Employer. — Where the proprietor of a theater made a contract in writing with an actor for his services, by the terms of which the actor undertook to render satisfactory services and the proprietor undertook to pay him for “ said satisfactory services ” the sum of $350 per week, and subsequently the proprietor requested the actor to shorten the time occupied by his performance, which he refused to do and the proprietor gave him notice of the cancellation of the contract because his services were not rendered satisfactorily, held, that the refusal of the actor constituted a sufficient ground for the termination of the contract.
    Assumpsit, on a contract for services. Appeal from the Circuit Court of Cook County; the Hon. Robert W. Hilscher, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed November 7,1901.

      Statement. — The appellant is an actor and is a specialist in what is known as monologue. Appellee is a theatrical manager. A contract in writing was made by which appellee engaged the services of appellant and by which appellant contracted “ to perform and act ” for appellee at such places and theaters in the United States and Canada as appellee might require for the theatrical seasons of 1898 and 1899. By the terms of the contract appellant undertook “ to render satisfactory service.” Appellee undertook by the contract to pay for “'said satisfactory services ” the sum of $250 per week. The season was specified to begin on or about August 15, 1898, and to continue for not less than thirty weeks.
    It was also made a part of said contract that appellee should make appellant “ a leading feature ” in his company, and that in all advertising done by appellee there should be given to appellant a prominence equal to that given appellee or any other individual of the company. The company managed by appellee was a minstrel company. Appellant began his services at about the time specified, viz., August 15, 1898, and continued therein until November 5, 1898, when they were terminated by appellee. On October 28, 1898, appellee served notice in writing upon appellant that after November 5th following his engage- • ment with the company would be terminated. At different times while appellant was performing his services under the contract he was requested by appellee and by the stage manager of appellee to shorten the time occupied by his performance. This appellant refused to do.
    Appellee testified:
    “ I gave him that notice of the cancellation of that contract because his services were not rendered satisfactorily. He absolutely and positively refused to do his act in twenty minutes. * * * I requested my stage manager to go and tell him to make his act shorter, as the show was too long, and the act was too long to please my audiences, and that it would be more satisfactory if it was curtailed to twenty minutes, which is long enough for any monologue artist, or any monologue. * * * I went to" him myself, and I said, 1 Kendall, I want your act in twenty minutes.’ He said, ‘ I won’t do it in twenty minutes.’ He positively refused to do it. That was during the week in Brooklyn, playing at the Grand Opera House. * * * About a week or two weeks prior to October 28, 1898. I did not give him this notice at-that time. * * * Mr. Truss, my manager, and I talked over the matter relative to his specialty, the length of it, and also having it done in black face, and we thought it would be a great deal better to have it in black face. * * * I went down to Baltimore, Maryland, during the fore part of the week, after he had already opened; * * * and I told him I wanted him to black up, and I wanted his act tried in black face, to see if it wouldn’t be beneficial to my show— I thought it would — and he absolutely refused to do so. He said he would not. He simply said, ‘ I won’t black up; my act can not be done in shape if I black up.’ I said, ‘ Yes, it can be done in shape.’ He said he wouldn’t do it. Then my manager and I talked the matter over, talked as manager and proprietor would naturally do in a business transaction. * * * For these reasons I discharged him. * * * I had seven weeks to book him immediately upon the following Monday if he wanted it, at a raise of $50 a week, which he refused to accept; the offer came to both myself and him. I saw Kendall about it; he wouldn’t recognize it at all; he wouldn’t accept it. * * * He could have commenced work on the 6th of ¡November at $300 a week; I could get him as high as $350. He would not do it.”
    Appellant testified:
    “ I refused to black up, and at certain times I refused to cut my act. * * * ■ I was offered $300 a week or more after the West company left me. * * * I could have received immediately after reaching Hew York more than $250 per week at reputable theaters.” * * *
    Q. “ As a matter of fact, you earned more in dollars and cents from the time you left Washington up to the end of the West contract than you would have earned had you stayed with West under the contract ? ”
    A. “ In dollars and cents, I was paid each week over the circuit more than Mr. West paid me in dollars and cents.”
    Appellant also testified that the advertising which he was to receive under the terms of his contract with appellee would be worth $250 per week. A witness called by appellant testified as an expert that, in his opinion, the advertising to which appellant was entitled under the terms of the contract was worth $500 per week.
    Appellant had received payment in full for services rendered up to the time of the termination of the engagement by appellee. At the conclusion of all the evidence the court directed a verdict for appellee. From judgment thereon this appeal is prosecuted.
    Jambs Ewabd Pubnell, attorney for appellant.
    Bulkley, G-bay & Mobe, attorneys for appellee.
   Me. Justice Seabs

delivered the opinion of the court.

It can not be contended that anything is due from appellee to appellant as salary contracted to be paid, for the evidence discloses that appellant had been paid in full up to the time when the éngagement ivas terminated by appellee, and that thereafter he received from other companies as much in salary as was provided for in the contract with appellee. The claim for damages by reason of the alleged breach of the contract rests solely upon the supposed value of the advertising which appellee had contracted to provide during the unexpired period covered by the contract, and which, it is contended, would have been of value to appellant in maintaining his reputation as an actor with the public at large.

It will be unnecessary to determine whether the damages thus claimed are sufficiently established and so far capable of being estimated as to be .recoverable in an action for breach of the contract, for we are of opinion that there was no actionable breach of the contract by appellee. The contract provided, in effect, that the services to be rendered by appellant were to be so rendered as appellee might direct. The contract can not be otherwise construed. It was not a copartnership. It was an employment of appellant by appellee. Appellee, as proprietor of the enterprise, had the undoubted right to direct its management in all reasonable ways. When he requested appellant to shorten the time of his performance-' and appellant refused so to do, appellee was warranted in terminating the engagement. There was evidence to the effect that there had been complaints by certain patrons of the theater that the time occupied by appellant was too long. Therefore the action of appellee in demanding that the time be shortened can not be viewed as arbitrary or capricious. Neither does it appear from the evidence that if the performance by appellant were shortened as requested, he would not still be “the leading feature” of the company, as provided by the contract.

There is another reason why the demand of appellee and the refusal of appellant constitute a sufficient ground for a termination of the contract. It is provided by the contract that the services to be rendered by appellant were to be “ satisfactory services.”

There is some conflict in the authorities as to whether, under like provision, a party to the contract may arbitrarily declare that he is not satisfied, and upon that ground avoid the contract. It is held by many decisions that it is precisely such right to arbitrarily determine when he is satisfied that is reserved by like provisions in contracts. There are other decisions, however, which hold that the dissatisfaction must not be capricious and ungrounded or unreasonable, and that when the services would be satisfactory to any reasonable-minded person, they can not be capriciously and arbitrarily determined to be unsatisfactory for the purpose of avoiding the contract. But we are aware of no decision holding that when the question of satisfaction with the services is largely a matter of taste, as here, the party reserving to himself under the contract the right to have such services satisfactory, may not determine absolutely whether they are or are not satisfactory.

We are of opinion that the weight of authority would sustain the right of appellee to determine under this contract whether appellant’s services complied with the contract in being satisfactory to him or not. Goodrich v. Nortwick, 43 Ill. 445; Alexis Mfg. Co. v. Young, 59 Ill. App. 226; Crawford v. Mail and Express Co., 163 N. Y. 404.

But if there were no such provision in the contract as to satisfaction with the services to be rendered, yet the very fact of insubordination on the part of the employe in refusing to comply with what appears from all the evidence to have been a reasonable request by the employer, would of itself justify the termination of the contract. Wood on Master and Servant, Sec. 116; Abendpost v. Hertel, 67 Ill. App. 501.

In Wood on Master and Servant, supra, the author says:

“ Refusing to obey the reasonable orders of the master is a good ground for dismissal from service, for in every contract of hiring there is an implied contract on the part of the servant that he will obey the lawful and reasonable commands of his master.”

We are of opinion that the evidence established conclusively that the appellant was not entitled to recover for breach of contract, and therefore that the action of the learned trial court in peremptorily directing a verdict was right.

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Windes

license: Public Domain

text:
    Estate of Anna Elizabeth Gall v. Frank Stark.
    1. Claims Against Estates — Express Contracts, When Necessary.— Where a mother-in-law lives in the family of a son-in-law as a member of his family, and after her death he files a claim against her estate for her board, there can be no recovery without the showing of an express contract.
    Claim in Probate. — Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed November 21, 1901.
    Frederick Duffy, attorney for appellant.
    John H. Rollins, attorney for appellee.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

Appellee filed a claim against the estate of Anna Elizabeth Gall, deceased, in the Probate Court of Cook County, for cash expended in behalf of decedent and for her board during her lifetime, which was allowed for the sum of §418.56 by the Probate Court, from which an appeal was perfected by one of the heirs of decedent to the Circuit Court of Cook County, where a trial before the court and a jury resulted in a verdict in favor of said claimant for a like amount and judgment thereon, from which this appeal is taken.

First, it is argued that the verdict is contrary to the law and the evidence, and in this connection it is contended that because the claimant was a son-in-law of deceased, and that the latter lived with him as a member of his family during the time for which the claim is made for board, there could be no recovery without the showing of an express contract between the claimant and decedent that she should pay for her board. The contention that there could be no recovery without the showing of an express contract, considering the family relations of the claimant and the decedent, is no doubt clearly established by the authorities. Switzer v. Kee, 146 Ill. 577-90; Heffron v. Brown, 155 Ill. 322-33.

The evidence, however, shows that there was an express contract between appellee and the-decedent that the latter should pay at the rate of §5 per week for her board during the time she remained at appellee’s house. Ho objection to the amount of the recovery is made. The witness Louise Juergens, among other things testified that she was present ’ at a conversation between appellee and decedent, in which the latter said, “ Who would care for her in her old days % They were to have — they are to have $5 a week after her death.” This conversation occurred soon after decedent came to appellee’s house to live. The evidence of A. B. Juergens is of similar import, and other witnesses testified that decedent said she was to pay §5 a week for her board.

The court was asked to give, among others, the following instruction, to wit:

No. 3. “ The court instructs the jury that before the claimant can recover in this case he must show that an express agreement was entered into between himself and deceased that said deceased would pay her board, and unless it be shown by clear, direct and positive evidence that such an express agreement was entered into, then the claimant can not recover for said board; ” but it was modified by striking out the words, “clear, direct and positive,” and given as modified. We think there was no error in the modification. Counsel for appellant cite cases in other jurisdictions which seem to hold that the proof of an express contract in cases of this kind should be positive and •direct. We think it is enough that there should be proof of an express contract, not that it should be clear, direct and positive, and the adjudicated cases in this State do not seem to require any greater degree of proof than that in the ordinary civil case. Switzer and Heffron cases, sujpra.

A like modification was made in instruction No. 1, and for the reason above stated, we think it was not error.

No other matters are presented in appellant’s argument, and the judgment is affirmed.


text:
    Antoine Delfosse v. Metropolitan National Bank.
    1. Negotiable Instruments — Chicago Time Warrants Are Not. — A warrant in the following language—
    “ Chicago, Nov. 10, 1896.
    Treasurer of the City of Chicago ;
    From the tax levy of the year 1896, appropriated and levied for the police department, when received by you, pay James Byrnes, or b-arer, the sum of ten hundred and ninety, AV dollars, with interest at the rate of six per cent per annum from the date hereof until paid, from the fund and in the manner provided in the annexed coupon; this warrant is issued on account of salary and is payable solely from the taxes of 1896 levied for said department when collected and not otherwise, which taxes are especially assigned and pledged to the payments of this and all warrants drawn against such taxes, which warrants do not exceed seventy-five per cent of such appropriation, and this warrant is receivable in payment of city taxes of 1896 after the coupon is detached and paid by the comptroller. George B. Swift, Mayor.
    Registered F. M. Barrett,
    Countersigned O. D. Wetherell. Chief Clerk ”— is not a negotiable instrument.
    2. Fraud— When One of Two Innocent Parties Must Suffer.— When one of two innocent parties must suffer by the fraud of a third person, it must be one who places it in the power of such third person to commit the fraud.
    3. Estoppel— Where the Owner of Personal Property Permits Another to Appear as Such. — Where the owner of personal property allows another to appear as such and innocent parties are led into dealing with such apparent owner, they will be protected. By such an act the real owner is precluded from disputing as againstsuch parties the existence of the title in the person dealing with them.
    Replevin. — Appeal from the Circuit Court of Cook County; the Hon. Elbridge.Haneoy, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed November 21, 1901.
    Statement by the Court. — Appellant brought replevin, adding a count in trover to his declaration, to recover the possession from appellee of a certain warrant of the city of Chicago, or, on failure to get the warrant, to recover its value. Issues were formed but no question arises upon the pleadings. A trial before the court, without a jury, resulted in a finding for the defendant and judgment thereon, from which this appeal is taken.
    It appears from the evidence in substance that one James Byrnes had a contract with the city of Chicago for doing certain work, and sold his interest therein to the plaintiff, Antoine Delfosse, and one Baillargeon, who were then partners. Later Delfosse sold his interest to Baillargeon, though the warrant in question was, for some reason not explained, given to Delfosse, who at the time agreed with Baillargeon that if the latter should have occasion to use the warrants issued on the work, Delfosse would loan them to him, Baillargeon.
    The warrant involved in this suit is as follows:
    “ Ho. 6926 L. Chicago, LTov. 10, 1896.
    Treasurer of the City of Chicago :
    From the tax levy of the vear 1896, appropriated and levied for the police department, when received by you, pay James Byrnes, or bearer, the sum of ten hundred ami ninety, 91-100 dollars with interest at the rate of six per cent per annum from the date hereof until paid, from the fund and in the manner provided in the annexed coupon; this warrant is issued on account of salary and is payable solely from the taxes of 1896, levied for said department when collected and not otherwise, which taxes are especially assigned and pledged to the payments of this and all warrants drawn against such taxes, which warrants do not exceed 75 per cent of such appropriation, and this warrant is receivable in payment of city taxes of 1896 'after the coupon is detached and paid by the comptroller.
    George B. Swift, Mayor.
    Registered, F. M. Barrett,
    Countersigned, O. D. Weti-iekell. Chief Clerk.”
    The warrant has upon it the following indorsements, to wit:
    “ I hereby certify that the within warrant was issued by the city of Chicago, to me, at par; in payment for, and for value received, I hereby assign same to bearer without recourse.
    Jas. Bet me,
    by Antoine Delfosse, Attorney in fact.
    Antoine Delfosse.
    Paid by city treasurer, July 2, 1897.”
    Delfosse, after receiving the warrant, having occasion to leave the city of Chicago, left it with his son, Charles Delfosse, to collect. While away from the city Delfosse authorized his son to permit Baillargeon, who wanted to use the warrant as security to one Graham for signing a bond for Baillargeon, to make use of the warrant for that purpose. Baillargeon and Charles Delfosse went together to Graham and an arrangement was made with the latter to leave the warrant with Graham as security for his signing Baillargeon’s bond. When this arrangement was made, Charles Delfosse handed the warrant in question to Baillargeon, who gave it to Graham. Thereafter the warrant was handed back to Baillargeon, and he sold it to one Ferris, a note broker, for the appellee bank, the bank paying through Ferris the full value of the warrant.

      It further appears that Baillargeon and Delfosse had gone to the office of Ferris on previous occasions with paper of like character to this warrant, to have Ferris get it cashed for them, which was done, and that on one of these occasions some three or four months before the warrant herein question was cashed, Delfosse told Ferris that “ whatever Baillargeon would do in the way of offering paper for discount would be all right, and that he could discount them for him.” Delfosse never had any business with the appellee bank, but admits that he went to Ferris and sold paper to Ferris, who paid him, Delfosse, though he says that he never, at any time, permitted Ferris to pay any of his certificates to Baillargeon. He does not, however, deny that he told Ferris that whatever Baillargeon did in the way of discounting paper would be all right.
    F. H. Trude, attorney for appellant.
    Follansbee & Follansbee, attorneys for appellee.
   Mr. Presiding Justice Windes

delivered ,the opinion of the court.

It is claimed for appellant that the warrant in question is not negotiable paper. This is the law, and it needs no citation of authority to establish it. Taking this law as a basis, it is contended that no title to the warrant passed by the sale of it by Baillargeon through Ferris to the bank, for the reason, as it is said, that Delfosse only indorsed and delivered the warrant to Baillargeon for a specific purpose, not parting with or intending to part with his title thereto nor intending to sell nor to authorize a sale of the warrant by Baillargeon. A number of cases, among others, Jennings v. Gage, 13 Ill. 610, Faucett v. Osborne, 32 Ill. 411, and Burton v. Curyea, 40 Ill. 320, are cited in support of the contention. We think none of these cases are applicable, and that they do not support a right of recovery by appellant herein. The first two cases referred to contain elements which clearly distinguish them from the case at bar, and the last case seems to be specially predicated upon the fact that the true owner, who was in that case permitted to recover, was not chargeable with any negligence by means of which the wrong-doers were enabled to impose upon innocent parties. The same is in a general way true of each of the other cases cited, and relied upon by appellant’s counsel. We can not undertake to refer to and discuss each of them in detail; suffice it to say, we are of opinion, from a careful consideration of the facts of this case, that it should be decided upon the principle announced in the cases of Williams v. Fletcher, 129 Ill. 357-66; Springer v. Kroeschell, 161 Ill. 358-63; R. R. Co. v. Phillips, 60 Ill. 190-5; Anderson v. Armstead, 69 Ill. 452-4, and Marshall v. Ender, 20 Ill. App. 312-18, which is that “ when one of two innocent persons must suffer by the fraud of a third, it must be the one who places it in the power of such third person to commit the fraud.”

The warrant in question is payable to bearer, and is besides indorsed by the payee as well as by the ap'pellant, who claims to be the true owner. If it be true, as claimed by Delfosse, that he only permitted the warrant to go into Baillargeon’s hands for a specific purpose, viz., to be by him used as security to Graham, and for no other purpose, still, by the indorsement and placing it in Baillargeon’s hands, he put it within the power of the latter to assume the ownership of the warrant. He thus gave to Baillargeon the possession of the property, with every outward indication of ownership, making his possession equally rightful as if he had made an outright sale of the. warrant to him. There is no claim, nor is there any evidence to support it, that Ferris knew or that any one representing the bank knew that Baillargeon had not a perfect right to sell the warrant. In fact, it is in evidence, and not denied, that on a previous occasion Delfosse told Ferris that whatever Baillargeon would do in the way of offering paper for discount would be all right. Delfosse should now, the bank having bought the warrant in good faith for value, be estopped to deny that the bank took title to the warrant.

In the Williams case, sv.jrra, the court say:

“Asa general rule, applicable to property other than negotiable securities, the vendor or pledgor can convey no greater right or title than he has. * * * But when the true owner holds him out or allows him to appear as owner of or as having full power of disposition over the property, and innocent third parties are thus led into dealing with such apparent owner, they will be protected. Their rights in such cases do not depend upon the actual title or authority of the party with whom they deal, but are derived from the act of the real owner, which precludes him from disputing, as against them, the existence of the title or owners, which, through negligence or mistaken confidence, he caused or allowed to appear to be vested in the party making the conveyance.”

In the Springer case, supra, though the question under consideration was not personal property, the court states the general proposition as follows :

“ Where the owner of property allows another to appear as the owner thereof, and innocent persons are thus led into dealing with such apparent owner, they will be protected. By such act a real owner is precluded from disputing, as against them, the existence of the title which he suffered to be vested in the party dealing with them.”

We see no reason why the principle should not be applied in the case at bar.

In the Phillips case, swpra, where the question was as to personal property — high wines, the court applied the same rule, and in substance held that where a seller delivers property to the purchaser, and thus vests him with indicia of ownership, and the purchaser sells or pledges it to a bona ' fide purchaser without notice, the latter acquires rights which will be protected. Where the property is thus placed in the hands of the purchaser, as to third persons who become bona fide purchasers, it does not matter as to the intent with which it was delivered.

In the Marshall case, sujpra, the court applied this rule to the case of a note and trust deed placed in'the hands of one Schmidt by the owner, which were wrongfully sold to an innocent purchaser. The court say : Marshall having thus placed these securities in the hands of Schmidt, and clothed him, or permitted him to be clothed, with the in dieia of ownership, is bound by what Schmidt did as the apparent owner;" and held that the title of the innocent purchaser from Schmidt would be protected.

The facts of this case, carefully considered, show that there was more than a mere bailment as between appellant and Baillargeon — that not only was Baillargeon clothed with every indicia, of ownership, but Delfosse in substance told Ferris,who purchased the warrant for the bank, in effect that Baillargeon was empowered to dispose of the paper. This last feature of the case, we think, clearly distinguishes it from the facts of each case relied upon by appellant, and the judgment.is therefore affirmed.


author: Mb. Justice Adams

text:
    Margaret A. Bonney v. Charles L. Bonney.
    1. Alimony — Where the Installments of, Are Evidenced by Promissory Notes. — Where promissory notes are given for and merely to evidence installments of alimony, the court has ample power to enforce their payment by attachment for contempt, notwithstanding the party aggrieved has a remedy at law by suit on such notes.
    Petition to Enforce a Decree for Alimony. — Appeal from the Circuit Court of Cook County; the Hon. Charles (J. Neely, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed and remanded, with directions.
    Opinion filed November 21, 1901.
    Statement. — December 19, 1899, the appellant, formerly the wife of appellee, obtained a decree of divorce from appellee on the ground of extreme and repeated cruelty. The court found, by the decree, that the parties had three children, the issue of their marriage, namely ; Charles V. Bonney, aged sixteen years and three months; Margaret A. Bonney, aged thirteen years and eleven months, and Pauline Bonney, aged ten years and two months. The subjects of care and custody of the children, alimony, etc., were, by the decree, reserved for further consideration. On the same day the parties came again before the court, and an order was entered, which, after reciting the rendition of the decree above'mentioned, proceeds as follows:
    “And the court having heard evidence touching said subjects, and the arguments of counsel, and being fully advised in the premises, finds that the complainant and defendant have reached an agreement as to the amount of money which the defendant shall pay and the particular property which he shall convey to some third person and the notes which he shall give to said third person by way of permanent alimony and for her maintenance and for the support and education of the said three children of said parties, namely, Charles Valerian Bonney, Margaret Ada Bonney and Pauline Bonney; and further finds that the defendant has paid the complainant the money and has conveyed to James Dwight Lamb, for the benefit of the complainant and the said three children, the real estate and property and notes called for by said agreement, and that the said defendant has in all respects fully complied with said agreement. It is therefore ordered, adjudged and decreed by the court that the complainant have and take the said money and the proceeds of said real estate and notes executed by the said defendant in pursuance of the agreement between the complainant and the said defendant for alimony and for her maintenance and for the support and education of their three children, as for her permanent alimony and in full satisfaction of all her demands upon the defendant, and right to call upon him for alimony and maintenance of herself and said children; and that the complainant be and that she is charged with the care, support and education of the said three children of the parties hereto, namely, Charles Valerian Bonney, Margaret Ada Bonney and Pauline Bonney, and the complainant is also charged with the custody of the two daughters aforesaid, and the defendant be and he hereby is permitted to retain the custody of the son of said parties hereto, namely, Charles Valerian Bonney.”
    • December 29, 1900, appellant filed her petition in the Circuit Court, entitled as in the divorce suit, alleging in substance that the agreement in respect to alimony, which the court, by the order of December 19, 1899, had found wms fully complied with, was that appellee would join with appellant in conveying to her brother-in-law, James Dwight Lamb, thirty-one lots in the city of Chicago, and would pay to appellant $2,500 in money, and execute to James Dwight Lamb his, appellee’s, four promissory notes, each for the sum of $2,500, and due, respectively, in six, twelve, eighteen and twenty-four months from date, for alimony for herself and for the care, support and education of the three minor children; that the conveyance by appellant and appellee to Lamb was executed accordingly, and that, December 20, 1899, the four notes, each for $2,500, were executed and delivered to Lamb, payable as aforesaid, and were signed by “ Bonney Bros,” a firm composed of Charles L. Bonney and Lawton C. Bonney, brother of Charles L., and the cash payment of $2,500 was made; but that neither the first note, due June 20, 1900, nor the second note, due December 20, 1900, ñor any part of either of said notes has been paid, and that appellee refuses to pay either of said notes, or any part thereof; that appellee is able to pay the notes, but has so managed his affairs that appellant can not say she can collect the notes by process of law, and to do so would put her to great cost and expense; that she has no money or means of support, except to burthen the thirty-one lots, which in the present condition of the market are not worth to exceed $13,000, and being vacant property, could not be hypothecated for more than one-quarter of that sum, and being her own property she is not willing to .incumber them for the support and education of her minor children, when the obligations imposed upon said Charles L. Bonney by said four notes solemnly agreed to be paid, and accepted under the decree of the court in faith that they would be paid as they matured, and in reliance that their payment would be enforced by the summary process of the court if there was any failure to pay, makes it incumbent upon him, Charles L. Bonney, to support his children ; that Chaides L. Bonney is living in luxury, while appellant and her children are in want. The petition contains other allegations, tending to show the needy circumstances of appellant, and concludes by praying that appellee be ruled to answer the petition, and to show cause why he should not be attached for contempt, etc. The petition is verified by appellant’s affidavit. An amendment to the petition was filed, which we deem it unnecessary to refer to. January 7, 1901, the petitioner moved the court to redocket the cause and for a rule on appellee, as prayed by her petition, and January 15, 1901, the court entered an order overruling the motion, on the ground that the appellant’s only remedy is by suit on the notes, and dismissed the petition.
    Thomas S. McClelland, attorney for appellant.
    Lyman M. Paine, attorney for appellee.
   Mb. Justice Adams

delivered the opinion of the court.

The appellee, Charles L. Bonney, resists the petition of appellant on the grounds that a decree for alimony, by consent, is binding on the parties, and that the court is powerless to set such decree aside. Both these propositions may be conceded without affecting the question presented by the record. Appellant does not contend that the decree is not binding, nor does she seek any alteration or modification of it. Her contention is, that the decree is, in substance, for .the payment of the notes mentioned in it, and described in her petition, as they should mature; that the decree is for money and not merely for paper, and so construing the decree, she seeks its enforcement. The question, therefore, is as to the proper construction of the decree.

The decree providés:

“It is therefore ordered, adjudged and decreed by the court, that the complainant have and take the said money, and the proceeds of said real estate and notes, executed by the said defendant, in pursuance of the'agreement between the complainant and the said defendant, for alimony and for her maintenance, and for the support and education of their three children, as and for her permanent alimony, and in full satisfaction of all her demands upon the defendant, and right to call upon him for alimony and maintenance of herself and children; and that the complainant be and she is charged with the care, support and education of the said three children,” etc.

Thus it appears from the very letter of the decree that appellant is to take as alimony the proceeds of the notes; not merely the notes themselves, as contended by appellee. The decree is, in substance, for the payment by appellee of the amounts evidenced by the notes, at the times of their maturity, respectively. The object of the decree is to provide for the maintenance and support of appellee, and for the care, support and education of the minor children of the parties, which object can only be attained by the payment to appellant of the money evidenced by the notes. In the absence of the provision in the decree charging the appellant with the care, support and education of the three minor children, their care, support and education would have devolved on appellant; but the court, because of so charging appellant, decreed her, as an equivalent, the" lots, money and proceeds of the notes referred to in the decree, and described in appellant’s petition. Plaster v. Plaster, 47 Ill. 290.

The notes merely evidence installments of alimony, decreed to be paid, and the court has ample power to enforce payment of such installments by attachment for contempt, as prayed by appellant in her petition. Wightman v. Wightman, 45 Ill. 167; O’Callaghan v. O’Callaghan, 69 lb. 552.

It appears from appellant’s sworn petition that appellee is able to pay the amounts evidenced by the matured notes, and that he refuses to pay any part of such amounts. The decree of January 15, 1901, overruling appellant’s motion to redocket the cause and dismissing her petition, will be reversed and the cause remanded with directions to re-docket the cause and enter a rule requiring appellee to show cause, etc., and for further proceedings in accordance with this opinion. Eeversed and remanded with directions.


author: Mb. Justice Seaes

text:
    Charles W. Pardridge et al., Copartners as Pardridge & Netcher, v. Michael Gilbride.
    1. Limitations — Amended Counts. — In an action for personal injuries founded upon negligence in furnishing a defective elevator and machinery, an amended count which sets up a promise to repair, while it might affect the question of contributory negligence of the plaintiff in continuing in the use of the defective machinery with the knowledge of its defects, it does not constitute a new ground of action and is but a restatement of the original cause to which the plea of the statute of limitations does not present a bar.
    2. Perils — When Not Assumed as an Incident to an Employment.— The danger of injury by reason of a defect in a passenger elevator of which an employe has knowledge, is not, as a matter of law, under the circumstances of this case, an assumed peril as an ordinary incident to his employment.
    3. Evidence — Official Inspection of Passenger Elevators, Competent. — In an action for personal injuries alleged to have been caused by a defective passenger elevator, evidence showing an inspection of the elevator by an official inspector is competent as tending to show an exercise of some degree of care by tthe proprietors.
    4. Instructions — Based upon the Allegations of the Declaration.— In an action for personal injuries, an instruction stating that if the jury believed from preponderance of the evidence that the plaintiff, while in the exercise of ordinary care, was injured by or in consequence of the negligence of the defendants as charged in the declaration, they should find the defendants guilty, is proper in cases where the court by other instructions informs them that it is essential to a recovery that he establish by a preponderance of the evidence that he was ignorant of the defect in question.
    5. Contributory Negligence— What is Not. as a Matter of Law.— The fact that an employe upon leaving a passenger elevator immediately went back to it, lifted up the door of the elevator shaft and without looking to see if it was still there, stepped sideways into the shaft, fell to the bottom and was injured, can not be held per seas a matter of law to constitute negligence, as it was a question of fact to be submitted to the jury for their determination whether, under all the surrounding circumstances of the case, the act of the plaintiff constituted negligence.
    6. Verdicts — Against the Weight of the Evidence to he Set Aside.— In an action for personal injuries, where it is apparentfthat a preponderance of the evidence establishes the fact that the plaintiff was guilty of negligence which contributed to his injury, a verdict in his favor will be set aside as against the manifest weight of the evidence.
    Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed and remanded.
    Opinion filed November 21, 1901.
    Statement. — This suit was brought by appellee to recover for injuries sustained by him while in the employ of appellants and which, it is charged, resulted from negligence of appellants. Appellee was conductor of a freight elevator and had been so engaged for two years. During this time there had been a defect in the elevator or in the machinery which regulated its operation, by which the elevator when left without control was moved slowly upward. This defect is characterized by the witnesses as “ creeping.” It is uncertain from the evidence just what caused this “creeping ” — whether it was by reason of old and defective valves, lack of packing, or an uneven length in the cables. There was evidence tending to show that complaint had been made as to this defective condition of the elevator by appellee and by another, and that the chief engineer of appellants had promised to remedy the defect. At the time of the injury appellee, in performance of his duties, took the elevator to the sixth floor of appellant’s building to get a barrel of flour; when he reached the sixth floor he opened the wooden door of the elevator shaft, got out upon the sixth floor and closed the door of the shaft again. The door of the elevator shaft was opened and closed by pulling it up and down. Appellee found that the barrel of flour had already been taken below, and he thereupon returned to the elevator shaft for the purpose of taking his elevator down.again. During his absence the elevator had crept up to the floor above. Appellee testified that in order to get through the door of the elevator shaft, one is obliged to stoop. He lifted up the door of the shaft, stooped and stepped sideways into the elevator shaft and fell to the bottom of the shaft. As a result of the fall appellee sustained very severe injury. The cause was submitted to a jury and a verdict for appellee was returned, by which his damages were assessed at $6,000. From judgment thereon this appeal is prosecuted.
    Walker & Payne, attorneys for appellants.

      Theodobe Gf. Case, attorney for appellee; A. W. Bbowhe, of counsel.
   Mb. Justice Seaes

delivered .the opinion of the court.

The various grounds upon which it is urged by the learned counsel for appellants that this judgment should be reversed, are: First, that appellee is shown by the evidence to have been guilty of contributory negligence; second, that the danger of injury by reason of this defect in the elevator' was' an assumed risk; third, that the court erred in the giving of certain instructions; fourth, that the court erred in excluding evidence of an inspection of the elevator by a city official; fifth, that a plea of the statute of limitations to an additional count filed by way of amendment to the narr. was a good plea, and that the court erred in sustaining a demurrer to it.

We will consider these grounds, but not in the order presented.

The fourth or additional count, filed on November 3, 1900, which was more than two years after the occurring of the injury, as laid in the original narr., charged that the elevator and its machinery were defective, and also alleged a promise by the appellants to repair. The new element in this count is the promise to repair. But we do not regard this as constituting the gist of the action. The count is based upon the same negligence of the appellants as is alleged in the original counts, viz., maintaining for the use of their employe a defective appliance, and the allegation of a promise to repair, while it might affect the question of any contributory negligence of the appellee in continuing in the use of the defective apparatus with knowledge of its defects, does not constitute the ground of action. Negligence' in furnishing defective elevator and machinery is the gist of the action, and this is alleged in the original counts, as in the new count. Therefore the new count was but a restatement of the same cause of action which was set up by the original counts, and the plea of the statute does not present a bar, and the learned trial court was right in sustaining demurrer to the plea. We are of opinion that it can not be held as matter of law that the evidence here establishes that the danger which resulted in the injury to appellee was an assumed peril, as an ordinary incident to his employment, if or would his knowledge of the defect make the danger resulting from such defect necessarily an assumed danger. ' It was essential to such a defense that it should appear that appellee was aware not only of the defect, but as well of the perils incident thereto. Union Show Case Co. v. Blindauer, 175 Ill. 325.

And in any event the evidence of a promise by appellants to repair the defect would, if credited by the jury, afford ground for a finding by them that the risk was not assumed. Swift v. O’Neill, 187 Ill. 337; Ill. Steel Co. v. Mann, 170 Ill. 200.

We are of opinion that the court erred in excluding tlie evidence proffered by appellants to show an inspection of the elevator by a city official. Appellants had the right to establish by competent evidence that they had exercised ordinary care in the furnishing of this appliance to their employe. To show that they had procured an inspection of the elevator and its machinery by an official inspector, while not conclusive of this fact, would nevertheless be an item of evidence tending to show an exercise of some degree of care. We think it was competent. Sack v. Dolese, 137 Ill. 129; McGregor v. Reid, Murdoch & Co., 178 Ill. 464; and Springer v. Ford, 88 Ill. App. 529.

The instructions complained of are the third and fifth tendered by counsel for appellee and given by the court. The third instruction was as follows:

“ The court instructs the jury that by the law of this State the plaintiff is a competent witness to testify in his own behalf and the jury have no right to refuse to take his testimony into consideration because of such fact. In determining its weight and value, the jury have a right to consider that such witness is interested and then determine whether or not his testimony has been affected by his interest in the result of the suit. The weight of the testimony of an interested' witness may be just as worthy of belief as a disinterested witness. The jury are the judges of his credibility the same as they are the judges of the credibility of each and every witness in this case and of the weight to be given to his evidence as well as the weight to be given to the evidence of the other witnesses, each and all of them.”

We are of opinion that there was no reversible error in the giving of this instruction. The abstract proposition embodied in the instruction, that “ the weight of the testimony of an interested witness may be just as worthy of belief as a disinterested witness,” might better have been omitted from the instruction, for in the absence of further information to the jury it was calculated to mislead them. But at the same time that the instruction informed the jury that “ the weight of the testimony of an interested witness may be just as worthy of belief as a disinterested witness,” it also informed them that “ in determining its weight and value the jury have a right to consider that such witness is interested and then determine whether or not his testimony has been affected by his interest in the result of the suit.”

The fifth instruction was as follows:

“ If the jury believe from the preponderance of the evidence that the plaintiff, while in the exercise of ordinary care, was injured by or in consequence of the negligence of the defendants, as charged in the declaration or either one of the counts thereof, then you can find the defendants guilty.”

The giving of like instructions in cases where the doctrine of assumed hazard is relied upon in defense has been condemned in The Herdman Co. v. Spehr, 145 Ill. 329, and in C., R. I. & P. Ry. Co. v. Cleveland, 92 Ill. App. 308.

The reasoning of these decisions, as applied to the facts of this case, is that the instruction purporting to inform the jurv as to all the elements essential to a recovery should not have omitted any instruction as to this element, viz., a showing that appellee was unaware of the perils incident to the defect in the elevator and its machinery, or a showing of a promise to repair.

In Herdman v. Spehr, supra, the court said, in speaking of a like instruction given in a case where the defense of assumed hazard was asserted :

“ The foregoing instruction ignores entirely the question as to whether plaintiff assumed the hazard of his employment. Under it the jury was required to find for the plaintiff, even though they may have believed from the evidence that he had all the intelligence and information of a man of maturest judgment, under like circumstances, and as fully appreciated the danger to which he was exposed. The requirement in the instruction that he must have used reasonable care and prudence, 1 considering his age and experience,’ has no reference to the risk or hazard of his employment.”

By a later decision of the Supreme Court, in City v. Kostka, 190 Ill. 130, it was held that the giving of a similar instruction was not error. The instruction in that case was that “ if the jury believe from the evidence that the plaintiff has made out his case, as laid in the declaration, by a preponderance or greater weight of the evidence, they must find for the plaintiff,” etc. The ground upon which the instruction was approved, was that, as the declaration alleged the exercise of due and ordinary care for his own safety by the plaintiff, therefore it negatived by implication that he had knowledge of the defects by reason of which he was injured. But in the opinion of the court in that case it is stated:

“ It may be observed in this connection, however, that the court did give to the jury on behalf of appellant instructions which required them to find, as one of the conditions to appellee’s right of recovery, that he did not know, or could not have known by the exercise of ordinary care, that the ditch or sewer in which he was working was unsafe, and that his means of knowledge were not equally as good as those of the city.”

In this case, as in the Kostka case, the court did by other instructions inform the jury that it was an essential to a recovery that appellee should establish by a preponderance of the evidence that he did not know of the defect in question. Therefore we hold in accordance with the decision in City v. Kostka, supra, that there was no reversible error in the giving of this instruction.

There remains to be considered the contention that the evidence discloses that appellee was guilty of negligence which contributed to his injury.

The evidence establishes that appellee, when he went back to find his elevator, lifted up the door of the elevator shaft, 'and without looking to see if the elevator was still there, stepped sideways into the shaft. It appears that the shaft and the floor immediately about it were well lighted. We are of opinion that the mere fact the appellee stepped into the elevator shaft without first looking to see if the elevator was still there, can not be heldysr se and as matter of law to constitute negligence. It was still a question of fact to be submitted to the jury to determine whether, under all surrounding circumstances, the action of the appellee constituted negligence. The H. C. Co. v. Hahn, 189 Ill. 28.

In that case the plaintiff, an employe of the defendant, while attempting to pull and draw after him some canvas which he was attempting to spread out upon an upper floor of- a building, walked backward into the elevator shaft when the elevator had been lowered from that floor. He had just come up in the elevator, bringing the canvas, and did not know that the elevator had been removed from that floor while he was engaged in spreading the canvas upon the floor. There was evidence that the space about the elevator shaft was poorly lighted, and it appeared that the plaintiff was working hurriedly under orders. But the fact was established that the plaintiff did not look to see where he was going in moving backward. The Supreme Court held that the trial court properly refused to direct a verdict for the defendant upon the ground of contributory negligence of the plaintiff. We are of opinion that in this case the trial court properly submitted to the jury the question of contributory negligence upon the part of appellee. But this conclusion in noway relieved the trial court, nor does it relieve this court from the duty of determining whether the verdict of the jury, finding in effect that appellee was not guilty of contributory negligence, is sufficiently supported by the evidence or is against the manifest weight thereof. Under our practice it by no means follows, because the evidence is such as to make it proper to submit it to a jury, that therefore a verdict returned by the jury should not be set aside if against the manifest weight of the evidence.

We are of opinion that in this case the finding of the jury that the appellee was in the exercise of ordinary care for bis own safety when injured, is against the manifest weight of the evidence, and that therefore the learned trial court should have set aside the verdict and granted a new trial upon this ground. Appellee walked into the elevator shaft without looking to see that his elevator was there on the level of the floor. There was no requirement of haste in his work at that time, so far as the evidence discloses. The elevator shaft and the floor about it were well lighted. We think it apparent that a preponderance of the evidence goes to establish that appellee was guilty of negligence which contributed to his injury, and that therefore the verdict was against the manifest'weight of the evidence. Our duty in the premises is plain.

The judgment is reversed and the cause is remanded,


author: Mr. Justice Sears

text:
    C. Knox Harding v. Harding Incandescent Co. et al.
    1. Appeals — Prom Interlocutory Orders — Practice.— An appeal from an interlocutory order granting an injunction under the statute (B. S.. ' Chap. 22, Sec. 52) is tbbe perfected by the giving of a bond by the party taking the appeal, which is to be approved by the clerk of the court in which the order appealed from is entered. An appeal bond in such a case approved by the court is not sufficient.
    2. Same — Right of a Statutory Creation. — The right of appeal is a matter of statutory creation and not a common law right; conformity to the provisions of the statute is essential and a lack of it is jurisdictional.
    Appeal, from an interlocutory order granting an injunction. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the October term, 1901.
    Dismissed.
    Opinion filed November 21, 1901.

      Walrath & Woolfolk, attorneys for appellant.
    Masterson & Haft, attorneys for appellees.
   Mr. Justice Sears

delivered the opinion of the court.

This appeal is from an interlocutory order of injunction. The appellant prayed an appeal and the Circuit Court ordered that the appeal be allowed “ upon his giving and filing a good and sufficient bond according to law in the sum of $200, together with a certificate of evidence herein, ■within sixty days from the entry of this order.” An appeal bond was filed, which was approved by the court but was not approved by the clerk of the court. Appellees now interpose a motion to dismiss this appeal upon the ground that it has not been perfected in accordance with the provision of Sec. 52 of Chap. 22 of the Revised Statutes, which provides for appeals from interlocutory orders. We are of opinion that the motion must be granted. The statute provides that an appeal may be taken from an interlocutory order by the giving of a bond by the party taking the appeal, which bond is to be approved by the clerk of the court wherein the order appealed from is entered. In no other manner than by conforming to this statute could an appeal be prosecuted from this order. The statute requires no approval of the appeal bond by the court, but it does require an approval by the clerk of the court. Here the court approved the bond and the clerk of the court did not, and hence the appeal was not perfected.

The right of appeal is a matter of statutory creation, not a common law right. Hence conformity to the statute is essential and a lack of it is jurisdictional. Fairbank v. Streeter, 142 Ill. 226; Greve v. Goodson, Id., 355; Tedrick v. Wells, 152 Ill. 214; John F. Alles Plumbing Co. v. Alles, 67 111. App. 252; Hartzell v. Warren, 77 Ill. App. 274.

In the two cases last cited precisely the same question was presented as is here, and this court held that it was without jurisdiction and dismissed the appeals.

It is argued by the learned counsel for appellant that the very fact that the clerk of the Circuit Court has sent up this record certified by him, containing "a transcript of the appeal bond in question, signifies that the bond has been accepted by him, is on file in his office, and therefore has been in effect approved by him, although such approval is not formally indorsed upon the bond. Decisions in other States are cited in support of this contention, which proceed upon like reasoning. But we are of opinion that the filing of the bond, under the order of the court q,nd the approval of it by the court, although unnecessary and ineffective, sufficiently accounts for the presence of the bond in the files, Avithout any inference of an approval of the bond by the clerk of the court. The approval by the court would rather tend to negative any such inference. And whatever may be held in other jurisdictions, this court is committed to the practice followed in John F. Alies Plumbing Go. v. Alies, supra, and adhered to in Hartzell v. Warren, supra.

The appeal is therefore dismissed.


text:
    Charles H. Starkweather v. Nellie Maginnis, Execntrix, etc.
    1. Landlord and Tenant — What is an Eviction. — Where the lessor of a tenant in possession by his agents, again leases the premises to another, and puts him in possession of the premises in question, and in , so doing informs the agents of the former tenant that such person is in possession and thereupon the premises are surrendered by such agents to such person, it is an eviction of the former tenant by the landlord.
    3. Sureties — On Leases —Effect of an Eviction of the Tenant. —Where a tenant holding under a lease in writing, upon which security for the payment of the rent is given, is evicted from the demised premises by the act of his landlord in leasing and delivering the possession of the premises to another, such eviction is sufficient to discharge the sureties upon the lease for any rent thereafter to accrue.
    8. Receipts — May be Explained by Parol. — It is competent to explain a receipt by parol evidence.
    Claim in Probate, for rent. Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed November 21, 1901.

      Statement. — Appellant Starkweather filed his claim in the Probate Court against estate of Patrick J. Maginnis, deceased. From order allowing such claim, appeal was taken to the .Circuit Court by decedent’s executrix.
    The claim filed in the Probate Court wasfor rent alleged to be due to appellant from Thomas F. Brady under lease of certain premises made by appellant to Brady for the term extending from May 1,1892, to April 30,1897, at a monthly rental of $650, Patrick J. Maginnis having in his lifetim.e, by indorsement on the lease, guaranteed the payment by Brady of the rent reserved. Upon trial in the Circuit Court appellant testified that there was due and unpaid $150 for each of the months from July, 1894, to ¡November, 1895; $275 of the ¡November, 1895, rent, and all of the December, 1895, rent. Brady used the premises for a saloon. One Heffron, called asa witness by appellee, testified in effect that in June or July of 3 894 appellant had leased to him by oral contract the premises previously leased to Brady; that he met appellant when both he and appellant were trying to find Brady; that Brady could not be found, but that Brady’s two barkeepers were in possession of the demised premises, conducting the saloon business of Brady; that appellant had gone with Heffron to the premises, told Brady’s barkeepers that Heffron was in possession, and that the employes of Brady had thereupon given up the possession to Heffron. Appellant testified that no such leasing had been made to Heffron, and that he had not directed the employes of Brady to recognize Heffron as in possession. Upon a former trial Heffron testified in substance to the like effect as upon this trial, and upon that trial appellant, though present and a witness in his case, was not recalled to contradict the testimony of Heffron. It is undisputed that Heffron was in possession after July, 1894, and that for a time he paid to appellant $500 per month as rent for the premises. Eeceipts for the rent were for the most part given to Heffron “ on account of T. F. Brady,” or as “ received of T. F, Brady.” The issues were submitted to a jury in the Circuit Court, and a verdict was returned for the defendant there, the appellee here. From judgment thereon this appeal is prosecuted.
    Mason Brothers, attorney for appellant; Henry E. ■ Mason, of counsel.
    J. M. H. Burgett, attorney for appellee.
   Mr. Justice Sears

delivered the opinion of the court.

But two questions are presented upon this appeal, viz., whether the evidence sustains the verdict of the jury, and whether the court erred in admitting evidence. We are of opinion that the evidence sufficiently sustains the verdict. If the testimony of Heifron is credited, appellant evicted his tenant, Brady, and thereby released appellee’s testator from his liability as a surety upon the lease for any rent thereafter to accrue.

Heifron testified positively that appellant put him in possession of the premises in question, and in so doing informed the employes of Brady that he, Heifron, was in possession, and that thereupon the premises were surrendered by Brady’s employes to Heifron. If this be true, it was clearly an eviction of the tenant, Brady, by the landlord, appellant. The fact that Brady was absent is of no consequence, for he was still in possession of the premises through his agents, the two barkeepers who were conducting his saloon business upon the premises. It is true that appellant contradicted Heifron in all the material parts of his testimony, but this merely left the determination of the issue to depend upon the relative credibility of the testimony of Heifron and appellant. This was a question for the jury, and we can not say that the conclusion reached by them and expressed by the general verdict is unwarranted. Doubtless the fact that appellant had failed upon a former trial to contradict like testimony given by Heifron upon this controlling question, had its influence on the determination of the jury as to the credibility to be accorded the witnesses. It was sought to explain the failure by the fact that the former trial was had upon a short cause calendar, and that time was scant. But the credibilit)'- of the -witnesses was a matter for the determination of the jury, and we can not say that their verdict is against the weight of the evidence, or that the affirmative defense is lacking a preponderance of the evidence. Preponderance of evidence may result from the discrediting of witnesses, as well as from a comparison of numbers.

The lease to Brady contained a provision to the effect that in the event that the lessee abandoned the premises, the lessor might lease to another and hold the lessee liable for any deficiency in the rent received. But if the testimony of Heffron be credited, there was no abandonment by Brady, but an eviction by appellant.

It is urged by the learned counsel for appellant that the court erred in admitting over objection certain testimony of Heffron. The witness was asked how he happened to take the receipts running to Brady, and was permitted to answer that appellant had said to him that he ought to have the Brady lease out of the way, and that witness had replied that he didn’t care as long as he was in possession how appellant made the receipts. It is argued that this evidence was incompetent. We are of opinion that there is no assignment of error which reaches this matter. But, if there were, we think that the error-would not be well assigned, for it is competent to explain receipts by parol. Skaife v. Jackson, 3 Barn. & C. 421; Carr v. Miner, 42 Ill. 179; Rand v. Scofield, 43 Ill. 167; Reading v. Traver, 83 Ill. 372; Paris v. Lewis, 85 Ill. 597.

Ho other question is raised as to the procedure.

The judgment is affirmed.


author: Mr. Justice Waterman

text:
    Sherman C. Spitzer v. Annie Williams et al.
    1. Mortgages— For Purchase Money — Effect of. — A mortgage given • to secure the payment of the purchase money of real estate, executed by the purchaser simultaneously with the deed of the property excludes all claims of liens arising under the purchaser and mortgagor, and the subsequent taking of a trust deed in substitution for the same debt in no wise changes or affects the rights of the parties.
    Foreclosure. — Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded with directions.
    Opinion filed November 1, 1901.
    Rehearing denied November 22, 1901.
    Statement. — This is a writ of error taken to the Cook County Circuit Court in a foreclosure suit brought by plaintiff in error, Sherman C. Spitzer, and John Milton Oliver, trustee, as complainants below, against August Jernberg and a large number of defendants, including the defendants in error, Annie and Ella Williams, who claimed, to own lots 9 and 10, in block 7, of Elsdon, and to hold said lots free from the lien of complainants’ trust deed.
    The defendants answered, complainants replied, and the cause was referred to a master. The master found against the defendants, who thereupon filed objections before the master, which were overruled. These objections were sent up by the master and filed by him with his report, but were not by any order made exceptions before the court. 2$To other objections and no exception as such were filed by the defendants in error.
    The court on a consideration of the report found “that the objections of the said defendants, Annie Williams and Ella Williams, filed herein to said master’s report, are well taken, and ought to be and are hereby sustained; ” overruled the master and found for the defendants, decreeing their title to be good in fee simple, free from the lien of complainants’ trust deed, and enjoined complainants from any sale of said lots under said trust deed.
    The question of the priority of liens and title, which was the only contest that arose in the suit, grew out of the following state of facts as found by the master: Edward Williams, husband of Annie Williams, and who had adopted Ella Williams as his daughter,.in March, 1887, began living on lot 9, in block 7, in Elsdon, as the tenant of John G. Earle.

      John G-. Earle owned considerable property in Elsdon, which he had platted and subdivided. On May 7, 1889, he sold over 200 lots to August Jernberg, by written contract of that date, recorded May 9, 1889, in which contract the agreed consideration of $40,000 was all in deferred payments of $5,000 in one year, $5,000 in two years, $10,000 in three years, $10,000 in four years and $10,000 in five jmars; the contract providing that Jernberg might obtain a deed to any of the lots on payment to Earle of certain fixed amounts per lot, with interest, and in case of sale by Jernberg that purchasers might obtain deeds from Earle on payment to Earle of such fixed sums and interest. Thereafter Edward Williams, who since March, 1887, had been living on said lot 9 as Earle’s tenant, bought from Jernberg said lot 9 and the adjoining lot 10 for $550, by contract of May 27, 1889, which contract was never recorded. The payments thereunder of $150 cash and $100 a year for four years, as evidenced by four notes dated May 27, 1889, appear to have been made as provided. Thereby Williams got the title and interest Jernberg held under the contract of May 7, 1899, which interest and title was subject to Earle’s lien for the unpaid part of the purchase price. After his purchase, Williams continued in possession of the lots and made improvements thereon of the value of about $200, consisting of a fence, well, sheds, porch, etc. It appears that Williams did not examine the records to find the EarleJernberg contract, recorded May 9, 1889.
    This situation continued without change until May 7, 1890. Then the form of the papers was changed; the contract taken up, the title'placed in Jernberg, and at the same time a trust deed given back to Earle for themmount still unpaid under the contract. The trust deed notes, in amounts, dates of maturity, interest, etc., were identical with the unpaid notes under the contract; and the trust deed itself contained releasing provisions as to any lots sold and .paid for like those in the contract.
    At the time of the execution of this deed and trust deed, Edward Williams had paid to Jernberg on account of his purchase $250, and Jernberg had his note tor the remaining $300 of the purchase price; this remainder was afterward paid to Jernberg. Earle did not receive any portion of such $550.
    Jernberg received from Williams full payment for said lots 9 and 10, but neither Earle nor Oliver nor the holders of the trust deed notes received anything whatever from Williams or Jernberg on account of said lots. All payments made by Jernberg, except those on account of interest, were on account of certain particular lots, not lots 9 and 10, for which deeds or releases were thereupon executed and delivered.
    June 3, 1893, the last payment on account of the purchase of said lots 9 and 10 was made by Annie Williams and Ella Williams; thereupon Jernberg made a deed of lot 9 to Annie Williams and a deed of lot 10 to Ella Williams. The deeds bear date of May 27, 1889; were acknowledged June 5, 1893.
    The master found:
    “ That complainant, Sherman 0. Spitzer, at the time he purchased the said notes made by Jernberg had examined the indices of the Cook County records and found the deeds to Ella and Annie Williams, recorded in August, 1893, but that said Spitzer had no actual notice, and no other notice than that with which he is chargeable from his examination of said tract indices.
    Oliver & Mecartney, attorneys for plaintiff in error. •
    John C. Trainor, attorney for defendants in error.
   Mr. Justice Waterman

delivered the opinion of the court.

Upon the making of the contract of sale between Earle and Jernberg, the property thereby agreed to be sold became in equity the property of Jernberg, with power to dispose of or incumber it as he might have done with land to which he held the legal title, subject to the rights of Earle, the vendor, under the contract. And so, too, upon the execution of the contract between Jernberg and Edward Williams, the property included therein, namely lots 9 and 10 of block 7, became equitably the property of Williams, subject to the rights of Jernberg, under that contract, and also to the rights of Earle, under his contract with Jernberg. Williams being in the open, notorious possession of the property so purchased by him from Jernberg, Earle was chargeable with notice of the rights which Williams acquired by virtue of his contract with Jernberg. Jernberg and Earle could not thereafter, by any contract between them made, vary or affect the rights which Williams had acquired by his contract, but Williams’ rights were subject to the rights which Earle had under his contract with Jernberg. "Williams not only knew, by reason of his having been, prior to the making of his contract with Jernberg, a tenant occupying lot 9, as the tenant of Earle, but was chargeable with notice of the fact that the record title of said lots was in Earle and that he was the owner thereof. Such being the case, Earle and Jernberg entered into an arrangement and executed new paper, by which the form, and the form only, of the agreement between them was changed. The deed made by Earle to Jernberg, and the trust deed executed by Jernberg to secure the unpaid purchase money of said premises, in no way or wise changed or affected the rights or obligations of Williams. Mor did such papers, upon their face, pretend to deprive Jernberg of any right which he possessed or add in the least to the burden resting upon him or the obligations which he had to discharge in order to obtain a complete and absolute title to the property, lots 9 and 10, which he had purchased from Jernberg. Such being the case, neither Williams nor those who claim under him can be heard in a court of equity to insist that by the mere change in the form of the security held by Earle, in respect to his contract of sale to Jernberg, was he (Williams) or the land purchased by him, discharged from obligations resting upon him or it under the purchase by Jernberg from Earle of lots 9 and 10.

The mortgage given by Jernberg to Earle, executed at the same time as the deed by Earle to Jernberg, was a transaction which did not for an instant vest in Jernberg any title to the premises divested of the lien which Earle had upon the premises for the payment of the purchase money contracted to be paid by Jernberg under the original agreement made between them. A purchase-money mortgage executed simultaneously with the deed of the property excludes any claim of lien arising under the mortgagor and no statement is necessary in order to effect this. In this case, the seizure of Jernberg being a merely transitory one, no lien or claim acquired under Jernberg could or can intervene as against the rights of Earle under the mortgage given to him, said mortgage being but a mere change of the form of security which Earle held under the original contract made between him and Jernberg. Hot even a right of dower or homestead rights, most jealously guarded by the courts, can intervene in such a case, to take precedence over the rights of a mortgagee by virtue of his contract and mortgage. Curtis v. Root, 20 Ill. 54-58; Flower v. Ellwood, 66 Ill. 438, 446; Shaver v. Williams, 87 Ill. 469-471; Roberts v. McNeal, 80 Ill. App. 536; Campbell v. Trotter, 100 Ill. 281-283; Roberts v. Doan, 180 Ill. 187; Bolles v. Carli, 12 Minn. 113; Morris v. Pate, 31 Mo. 315-317; Jones on Mtgs., 5th Ed., Vol. 1, Secs. 466 and 470-473; Am. & Eng. Ency. of Law, Wol. 19, page 583.

In the present case, Williams had paid to Jernberg at the time of the execution of the deed and mortgage but $250; the remaining $300 was paid by Williams to Jernberg after the execution of the deed and mortgage heretofore mentioned. In this case, appellees are claiming that although they had full notice of the rights of Earle in and to the premises under consideration, and knew that they could not acquire title to said premises, except upon performance of the obligation of Jernberg to Earle, under the contract originally made, that the premises they purchased are entirely rele'ased from the lien which Earle had thereon, by a mere change in the form of the security which Earle had, notwithstanding such change of form in no way or wise affected the right of appellants or Edward Williams, under whom they claim, and this claim is made in a court of equity.

It is sufficient to say that the claim of appellees, in this regard, has no foundation. Coming to this conclusion, we have not thought it necessary to comment upon the fact that no exceptions were filed to the master’s report finding the equities of the case with the complainants in the bill, and that the premises in dispute, lots 9 and 10, should be sold to satisfy the lien of Earle thereon.

The decree of the Circuit Court is reversed and the cause remanded with directions to enter a decree that the said premises, lots 9 and 10, in block 7, be sold to satisfy the deficiency decree entered by the Circuit Court in said cause on the 12th day of January, A. D. 1900. Reversed and remanded with directions.


author: Mr. Presidino Justice Windes

text:
    Northern Assurance Co. v. Chicago Mutual B. and L. Ass’n.
    1. Insurance — Parol Evidence Competent to Show Deeds to be Mortgages for the Purpose of Avoiding a Forfeiture of a Policy. —In an action on a policy of fire insurance containing a provision rendering it void in case of a change of interest or title of the property insured, parol evidence is competent for the purpose of showing that certain deeds of conveyances of the property in question were in fact mortgages.and not conveyances effecting a change of title of such property within the meaning of the policy.
    2. Same — When Proof of Loss is Unnecessary. — When an insurance company denies all liability under its policy, proof of loss is not necessary to be shown in order to recover.
    ' 3. Same — Proof of Loss by Mortgagee Unnecessary. — Under a policy of fire insurance containing a clause that the loss, if any, shall be payable to the mortgagee, the mortgagee is not bound by the provisions of the policy as to proof of loss when such provisions are not in the mortgage clause.
    4. Deeds— May be Shown to be Mortgages by Parol. — Parol evidence may be resorted to in equity to show a deed absolute in form to be in fact a mortgage, and the rule is not confined to causes in equity but applies to all actions at law in which the title is not directly in issue.

      Assumpsit, on a policy of fire insurance. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed November 21, 1901.
    Myron H. Beach, attorney for appellant.
    Samuel B. Kino, attorney for appellee.
   Mr. Presidino Justice Windes

delivered the opinion of the court.

Appellee brought assumpsit on an ordinary fire insurance policy made by appellant in favor of B. Eugene Taylor as owner of a two-story frame dwelling house for three years, from December 4, 1895, for $1,400, which contained a mortgage clause providing that loss, if any, should be payable to appellee, mortgagee or trustee, as therein provided. Among other provisions in the policy, not material in this case, is one making it void in case “ any change, other than by the death of an insured, take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment or by voluntary act of the insured or otherwise; or if this policy be assigned before a loss; ” also the following : “ If with the consent of this company an interest under this policy shall exist in favor of a mortgagee or of any person or corporation having an interest in the subject of insurance other than the interest of the insured, as described herein, the conditions hereinbefore contained shall apply in the manner expressed in such provisions and conditions of insurance, relating to such interests as shall be written upon, attached or appended hereto;” and another requiring that the assured should give immediate notice in writing to the company of any loss occurring by fire, and in sixty days after the fire should make sworn proofs of loss.

The mortgage clause contains among others the following provisions, viz.:

“ It being hereby understood and agreed that this insurance as to the interest of the mortgagee or trustee only therein, shall not be invalidated by any act or neglect of the mortgágor or owner of the property insured, nor by the occupation of the premises for purposes more hazardous than are permitted by the terms of this policy. * * * Provided, also, that the mortgagee or trustee shall notify this company of any change of ownership or increase of hazard which shall come to his or their knowledge, and shall have permission for such change of ownership or increase of hazard, duly indorsed on this policy.”

November 21, 1898, the premises were totally destroyed by fire, and appellee, as mortgagee of Taylor, who made to it a mortgage of the same date as the policy, to secure a loan by the former to the latter, evidenced by his bond, on which there was due at the time of the trial $1,816.44, sought in this suit to recover the amount of the insurance. A trial resulted, at the close of the evidence, in .a direction by the court of a verdict in favor of appellee of $1,550.93, on which, after a remittitur of $11.67, judgment was rendered against appellant for $1,539.26, to review which this appeal is taken.

The only error which it is claimed in argument was committed by the learned trial judge, was in the admission of evidence. If the alleged erroneous evidence were excluded from the record, then, it is claimed, there is no basis for the judgment and it should be reversed.

At the date of the policy Taylor was the owner of the insured premises, but with the consent of the company, he subsequently conveyed to one Anderson, who afterward, on January 28, 1897, by quit-claim deed, conveyed the same premises to one Hoig, and the latter also conveyed by quitclaim deed on March 1, 1898, to William J. Turnes, in whom the record title was at the time of the fire. Over the objection of appellant, the court permitted, parol evidence to the effect, in substance, that the deeds from Anderson to Hoig and from the latter to Turnes were in fact mortgages securing the indebtedness due to appellee on the Taylor mortgage, and the bond secured thereby. The rulings on this evidence alone are argued by appellant’s counsel. The purpose of this evidence was to avoid the provision of the policy above quoted, rendering it void in case of a change of the interest or title of the subject of insurance. If the deeds were mortgages, then they were not a violation of this provision. Ins. Co. v. Spankneble, 52 Ill. 53; Ins. Co. v. Eddy, 55 Ill. 213.

That the evidence was competent and proper is conclusively settled by the case of German Ins. Co. v. Gibe, 162 Ill. 251-6, in which it was held that precisely similar evidence was competent; that under the statute (Starr & Cur.), Ch. 95, Sec. 12, parol evidence may be resorted to in equity to show a deed absolute in form to be a mortgage, and that the rule is not confined to causes in equity, but applies to actions at law in which the title is not directly in issue. An extended argument is made by the learned counsel of appellant to show that the Gibe case is not the law and is in conflict with other opinions of the same court. The decision is clearly applicable here and distinguishes two of the latest cases relied on by appellant’s counsel, viz., Finlon v. Clark, 118 Ill. 32, and McGinnis v. Fernandes, 126 Ill. 228, which it is claimed hold to the contrary. The argument, to be of any avail, should be presented to the Supreme Court.

It is said, though no argument is made to support it, that the mortgagee can not, on this record, recover, because there was no proof of loss made. The evidence shows that appellant denied all liability under the policy, and therefore proof of loss is not necessary to be shown in order to recover. Ins. Co. v. Cary, 83 111. 453-7; Ins. Co. v. Henninger, 87 Ill. App. 440.

Moreover, the mortgagee was not bound by the provision in the policy as to proofs of loss, it not being contained in the mortgage clause. Queen Ins. Co. v. Dearborn Sav. Ass’n, 175 Ill. 115.

Other matters presented in appellee’s brief and the reply thereto are not necessary to be considered in view of the conclusion reached.

The judgment of the Superior Court is affirmed.