author: Mr. Justice Baker

text:
    William MacLachlan et al. v. William F. McLaughlin.

      filled at Ottawa November 15, 1888.

    1. Appeals and writs oe error—writ of error defined. A writ of error is a writ issued out of a court of competent jimsdiction, directed to the judges of a court of record in which final judgment has been given, and commanding them to send the record to the court of competent and appellate jurisdiction therein named, to be examined, in order that some alleged error in the proceedings may be corrected.
    2. Same—certificate of importance—when necessary— conditions to granting it—time for ashing it, etc. In an action ex contractu, wherein the amount involved is less than $1000, exclusive of costs, or in an action sounding in damages, wherein the judgment of the court below is less than that sum, exclusive of costs, the case can not be brought to this court from the Appellate Court, except upon a certificate of importance by a majority of the judges of the latter court, as prescribed by section 8 of the Appellate Court act.
    3. Whenever a majority of the judges of the Appellate Court, on proper petition filed, grant a certificate of importance in a case involving less than $1000, the party obtaining the same will have the right to take the case to the Supreme Court, as well by writ of error issuing from the Supreme Court to the Appellate Court, as by appeal from the Appellate Court to the Supreme Court.
    4. It is a condition precedent to such right of appeal and the right to a writ of error, in cases involving less than $1000, that the party desiring to exercise such right shall first obtain from a majority of the judges of the Appellate Court a certificate, that in their opinion the case decided by them involves questions of law of such importance, either on account of principal or collateral interests, as that it should bp passed upon by the Supreme Court.
    5. The granting of such certificate involves judicial investigation and action, and it follows, such investigation and action must be exercised at a time when such judges have jurisdiction in respect to the matter. The power to hear and determine a matter is jurisdiction.
    6. A party desiring a certificate of importance, to be used as the basis of an appeal or writ of error to review the judgment of the Appellate Court in this court, must apply therefor, by petition, within twenty days after the rendition of such judgment, otherwise the Appellate Court, or the judges thereof, will have no jurisdiction to act in the matter. The statute on the subject continues the jurisdiction of that court, or the judges thereof, to grant appeals and certificates of importance in vacation, for twenty days after final judgment.
    7. A judgment in an action ex contractu, for less than $1000, was affirmed by the Appellate Court in April, 1883, and the party against whom the judgment was rendered, applied, on June 17, 1887, to the Appellate Court, for a certificate of importance, to enable him to bring the case to this court by writ of error, which was granted, and a writ of error was issued from this court: Held, that by reason of the lapse of time beyond the twenty days, the Appellate Court had no jurisdiction to grant the certificate, and that it was a nullity, and the writ of error was dismissed.
    8. Same—construction qf the statutes. Section 90 of the Practice act, relating to appeals from the Appellate Court, and the several sections of the Appellate Court act, are in pari materia, and are to be construed together.
    9. Jurisdiction—beyond the term. The general rule is, that a court has jurisdiction and authority to act judicially only in term time, and only at the term or terms at which the cause is pending, and that such jurisdiction and authority cease with the close of the term at which final judgment is entered. But this general rule is in various ways qualified by various statutory enactments. Such statutes, however, only modify the rule in respect to the particular matters or proceedings covered by them.
    Writ of Error to the Appellate Court for the First District; —heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. McCoy, Pope & McCoy, for the plaintiffs in error:
    The Appellate Court had jurisdiction to grant the certificate of importance. Fuller v. Bates, 96 Ill. 132; 6 Bradw. 442.
    The writ of error is a writ of right, while an appeal in common law cases is purely statutory. Harding v. Larkin, 41 Ill. 413; Haines v. People, 97 id. 161.
    Mr. W. W. Gurley, for the defendant in error,
    cited, in support of his motion to dismiss the writ, the following authorities : Keiser v. Cox, 116 Ill. 26; Ellis v. Von Ach, 14 Bradw. 194; Coates v. Cunningham, 100 Ill. 463; Dunham v. South Park Comrs. 87 id. 185; Rev. Stat. chap. 37, sec. 28; Practice act, sec. 91,
   Mr. Justice Baker

delivered the opinion of the Court:

This was assumpsit, in the Superior Court of Cook county, in which judgment was rendered on the 6th day of June, 18 J o, for $829.52. Upon appeal to the Appellate Court for the First District the final judgment of the latter court was entered on the 24th of April, 1883. The amount involved being less than $1000, the case could not be brought to this court except upon a certificate of importance by a majority of the judges of the Appellate Court, as prescribed by section 8 of the Appellate Court act. The petition of the plaintiffs in error for a ■certificate of importance was not presented to the Appellate Uourt, nor was such certificate granted by that court, until June 17, 1887,—more, than four years after the judgment of that court, which is here complained of, was rendered. At the term the case was submitted in this court for decision, a motion was made by defendant in error to dismiss the writ of error herein, and that motion was reserved for consideration until the final hearing of the cause. The claim of defendant in error is, that the certificate of importance was not applied for or obtained in apt time, and that the Appellate Court had no jurisdiction to grant such certificate so long after the rendition of the final judgment of that court.

Section 8 of the Appellate Court act provides, among other things, that “in all cases determined in said Appellate Courts, in actions ex contractu, wherein the amount involved is less than $1000, exclusive of costs, and in all eases sounding in damages, wherein the judgment of the court below is less than $1000, exclusive of costs, and the judgment is affirmed or otherwise finally disposed of in the Appellate Court, the judgment, order or decree of the Appellate Court shall be final, and no appeal shall lie or writ of error be prosecuted therefrom: * * * Provided, also, that in any case a majority of the judges of the Appellate Court shall be of opinion that a case decided by them, involving a less sum than $1000, exclusive of costs, also involves questions of law of such importance, either on account of principal or collateral interests, "as that it should be passed upon by the Supreme Court, they . may, in such eases, grant appeals and writs of error to the Supreme Court on petition of parties to the cause, in which case the said Appellate - Court shall certify to the Supreme Court the grounds of granting said appeal.”

The language of the proviso above quoted is somewhat inaccurate. The judges of the Appellate Court do not grant t? writs of error to the Supreme Court. The Supreme Court issues the writ of error to the Appellate Court. A writ of error is a writ issued out of a court of .competent jurisdiction, directed to the judges of a court of record in which final judgment has been given, and commanding them to send the record to the court of competent and appellate jurisdiction therein named, to be examined, in order that some alleged error in the proceedings may be corrected. Notwithstanding the inaccuracy of the language used in the proviso in question, it is plainly the intention of such proviso, that when a majority of the judges of the Appellate Court grant a certificate of importance, the party petitioning for and obtaining such certificate shall have the right to take his case to the Supreme Court, as well by ivrit of error issuing from the Supreme Court to the Appellate Court, as by appeal from the Appellate Court to the Supreme Court. The proviso permits the use of either mode of getting the case before the court of final review,—either the remedy by appeal or the remedy by writ of error.

But it is a condition precedent, in these cases involving less than $1000, to such right of appeal and such right to sue out a writ of error, that the party desiring the benefit of either of these remedies should first obtain from a majority of the judges of the Appellate Court a certificate that in their opinion the case decided by them involves questions of law of such importance, either on account of principal or collateral interests, as that it should be passed upon by the Supreme Court." The granting of such certificate of importance very clearly involves judicial investigation and action. It is evident, therefore, that the petition for such certificate should be presented to and be considered and passed upon by the Appellate Court, or a majority of the judges thereof, at a time when it or they have jurisdiction in respect to the cause or matter wherein they are to exercise the judicial powers.and functions necessarily employed in the acts of determining whether or not questions of law of requisite importance are involved in the controversy, and of certifying to the Supreme Court the grounds for granting a certificate.

The power to hear and determine a matter is jurisdiction. The general rule is, that a court has jurisdiction and authority to act judicially only in term time, and only at the term or terms at which the cause is pending, and that such jurisdiction and authority cease with the close of the term in which the final judgment of the court in such cause is entered. This general rule is, in various ways, qualified by various statutory enactments, but these enactments modify the rule only in respect to the particular matters or proceedings covered hy such statutes.

Section 15 of the Appellate Court act provides that the judges of the Appellate Courts, respectively, or a majority of them, may enter orders and judgments in vacation, in all cases which have been argued and submitted to the courts during any term thereof, and which shall have been taken under advisement. Section 8 of the same act is, as we have seen, to the effect that where less than $1000 is involved, no appeal or writ of error lies to take the case from the Appellate to the Supreme Court, without a certificate of importance is first obtained from a majority of the judges of the first named court. Section 90 of the Practice act (Laws of 1877, pp. 153, 154,) provides that an appeal from the Appellate to the Supreme Court must be prayed for within twenty days after the rendition of the judgment, order or decree to be appealed from. This section 90 of the Practice act, and the several sections of the Appellate Court act, are in pari materia, and are to be construed together. (Young v. Stearns, 91 Ill. 221.) From a consideration of these several statutory enactments it seems to follow, as a matter of necessary implication, that a party ¿desiring a certificate of importance, to be used as the basis of an appeal to the Supreme Court, must petition and make application therefor to the Appellate Court or the judges thereof, within twenty days after the rendition of the judgment to be appealed from; and it also seems to follow, from such consideration, that the jurisdiction of the Appellate Court, or of the judges thereof, to entertain and consider the matter of such application, at least for the purposes of an appeal, ends with the expiration of said twenty days, unless within that time the petition for the certificate is presented or filed, and the judicial action in that behalf, of the court or its judges, invoked.

The effect of the statutes allowing the judges of the Appellate Courts to enter orders and judgments in vacation in cases held under advisement, and permitting parties litigant to pray for appeals within twenty days after the rendition of judgments, whether such courts be in session or not, and authorizing the. judges in vacation to make all orders necessary for the perfecting of such appeals, and empowering the judges to entertain, consider and pass upon petitions for certificates of importance, is to continue the jurisdiction and authority of such courts and judges to judicially investigate and act, in respect to such eases, until final judgments are entered, and until such applications for appeals, and such applications for certificates of importance as may be made within twenty days after the rendition of the several judgments, orders and decrees, are acted upon and the necessary orders and certificates made.

The certificate of importance, when once obtained, will serve as the basis either of an appeal or of a writ'of error, as the party procuring it may elect. A case decided by the Appellate Court, and involving less than $1000, is placed, by the granting of the certificate, upon the same footing as a case that involves more than §1000, so far as the jurisdiction of the Supreme Court is concerned. The remedy by appeal to the Supreme Court, and the remedy by writ of error from the Supreme Court, in those cases involving less than $1000, are given by one and the same provision of the statute, and are predicated upon one and the same certificate of importance. The time within which such certificate must be applied for, is, by necessary implication, limited to twenty days after final judgment if the one remedy is pursued, and no sufficient reason is perceived for holding that a different limitation should apply in the event the other remedy is invoked. Full force can be given to all the provisions of the statute without being driven to any such extreme doctrine as that the judicial power and jurisdiction of the court over a cause, and the parties thereto, continues through many intervening terms of court, and for a period of five years after the court has rendered its final judgment therein. There is no necessary implication, from the statutes, that the certificate of importance upon which a writ of error may be issued, can be procured at any time within five years. There is but one such certificate provided for in the statute, and the statute does not expressly designate within what time it shall be petitioned for, but the certificate is applicable alike to appeal cases and to cases taken up on writ of error, and as in the one class of eases it must necessarily be applied for within twenty days, it is .reasonable to presume the intention of the statute is that it should be petitioned for within that time in all cases.

The right to a writ of error is a common law right, but in this State that right has been qualified and limited, by statute. The right to a writ of error from the Supreme to the Appellate Court, for the purpose of reviewing a judgment of the latter court where less than $1000 is involved, is not a matter of absolute right, but depends upon the circumstance whether a majority of-the judges of that court, in the exercise of the sound and exclusive judicial discretion lodged in them, grant a certificate of importance, in conformity with the statute. Without such certificate is allowed, such case does not stand upon the same footing as a case involving $1000 or more, and the statute of five years’ limitation for a writ of error has no application to it. In such case, without there is further judicial action set in motion in apt time, the status of the judgment, order or decree of the Appellate Court is that fixed for it by section 8 of the Appellate Court act,—it is final, and no appeal lies from it and no writ of error can be prosecuted therefrom.

After full consideration of the principles that govern in determining the jurisdictional powers of courts, and a careful examination of the statutes, we are of opinion that it is not the law or the legislative intention that a certificate of importance can be applied for and obtained at any time within five years after final judgment rendered in the Appellate Court. It is opposed to sotmd doctrine, and would be an anomaly in the law that a court could, without any notice to the adverse party, take judicial action in a cause or matter determined in such court, and exercise a purely discretionary power in respect thereto, at any time within five years after such cause or matter was finally disposed of by the judgment of such court. The rule contended for by plaintiffs in error would re-open, by the mere exercise of a discretionary power, litigations that were ended years before; would leave the rights and interests of parties litigant, and those dealing with them, in a precarious and uncertain condition for a long space of time, and would tend to complicate and endanger property rights and titles. Where the amount involved in a suit is $1000 or more, the party defeated in such suit has an absolute statutory right to a writ of error at any time within five years, and any person dealing with the adverse party has or may have notice of such right; but where the amount is less than $1000 there is no such right, and third persons dealing with the successful party in such litigation could not well protect themselves against the contingency of a possible exercise of a discretionary power vested in the Appellate Court, and that might be set in motion and exercised at any time within five years.

The language of section 8 of the Appellate Court act seems to contemplate that the certificate of importance will be applied for and obtained immediately or shortly after the final judgment in the Appellate Court is rendered. It is in the present tense, and it provides that in case a majority of the judges shall be of opinion a case decided by them involves questions of law, etc., they may, in such case, grant appeals and writs of error to the Supreme Court. This language seems to indicate that it was intended the “opinion” that is to control in allowing or refusing a certificate is the opinion of a majority of the judges who participated in the decision of the particular case, that the case to be certified is a case “decided by them”— the judges who certify,—and that “they”—such judges—are to grant the appeal and writ of error. It is not reasonable to suppose that the legislature contemplated, that years after the final decision of a case, and when all the judges who took part in the decision made by the court had ceased to be members of the court, and had been succeeded by other and different judges, that then these other and different judges should have the duty imposed upon them of investigating the record adjudicated upon by their predecessors in office, for the purpose of ascertaining whether the case contained questions of such moment as that a certificate of importance should be issued. Nor is it reasonable to suppose it was intended that, even if there had been no change in the members of the court, the judges, long after the controversy had been decided and forgotten by them, were to have the duty devolved upon them of re-examining the record for the purpose of determining whether or not, in their opinion, a question of requisite importance had been involved in a litigation that years before had ended in a judgment, the status of which judgment, as fixed by express statute, was, and for years had been, that of a judgment which is final, and from which no appeal would lie, and in respect of which no writ of error could be prosecuted.

In the case now before us, the final judgment of the Appellate Court having been rendered on the 24th of April, 1883, ‘ and the certificate of importance not having been applied for or granted until June 17,1887, a period of over four years, and many terms of the court having intervened, we are of opinion that neither the Appellate Court nor a majority of its judges had jurisdiction or authority, at this latter date, to grant the certificate of importance found in this record, and that such certificate was and is a nullity.

The motion of defendant in error to dismiss the writ of error for want of jurisdiction in this court to entertain the same, is sustained.

Writ of error dismissed.

Mr. Justice Bailey, having heard this case in the Appellate Court, took no part in this decision.


source: Caselaw Access Project

author: Per Curiaii

license: Public Domain

text:
    Wilhelm Becker v. The Chicago, Burlington and Quincy Railroad Company.

      Filed at Ottawa November 15, 1888.

    Eminent domain—of the compensation to tenant for years. In a proceeding to condemn a lot for railroad purposes, upon which there was a building, occupied by a tenant for a saloon and restaurant, under an unexpired lease, a real estate dealer testified that the value of the leasehold interest was between $2500 and $3000 over and above the rent, which was $60 a month. The tenant testified that he had occupied the premises for eight or nine years, and that the leasehold interest was worth to him the amount of the rent, only. The jury gave the tenant $150 as compensation for his interest, and $100 for the costs and expenses of removal: Held, on appeal by the tenant, that the verdict was not too low, under the evidence.
    Appeal from the County Court of Cook county; the Hon. Bichard Prendergast, Judge, presiding.
    Messrs. G-oldier & Bodgers, for the appellant.
    Mr. E. J. Harkness, for the appellee.
   Per Curiaii

: This is an appeal from a judgment of the county court of Cook county, in a proceeding instituted by the Chicago, Burlington and Quincy Bailroad Company, to condemn a certain lot, situated at the south-west corner of Stewart avenue and Fourteenth street, for railroad purposes. There was upon the lot a two-story frame building, known as No. 89 Stewart avenue, which was occupied by Wilhelm Becker, appellant, as a saloon and residence, under a lease from May 1, 1886, to April 30, 1891, at a rental of $60 per month. There is nothing involved in this case except the leasehold interest of Becker. After hearing the evidence and viewing the premises, the jury returned a verdict, in which they allowed Becker $150 as compensation for his leasehold interest in the premises, and $100 for the costs and expenses of removal. The court rendered judgment on the verdict, and Becker appealed.

No question is raised in regard to the admission or exclusion of- evidence, or in regard to the instructions of the court. The sole question relied upon to reverse the judgment is, that the verdict of the jury was against the evidence.

The argument of appellant is predicated upon the evidence of one witness, a real estate dealer, by the name of A. Kozie, who testified that the value of the leasehold interest was between $2500 and $3000, over and above the rent reserved. If no other evidence had been introduced before the jury, it might be held that the verdict was contrary to the evidence. But there was other evidence before the jury. The appellant himself was sworn as a witness, and testified that he had occupied the premises as a saloon and restaurant for eight or nine years, and in answer to questions asked by his counsel, testified as follows:

“Q. How is the rent ?
“A. Sixty dollars a month.
“Q. Is that a reasonable rent, or otherwise, of those premises?
“A. The rent is reasonable,—just the way sometimes business goes.
“Q. Is the rent reasonable, or otherwise?
“A. Yes.
“Q. What is the place worth, in rent ? How much, for a business of your character ? What would it be worth ?
“A. It is anyhow worth $60 to me for my business/’

From this-testimony it appears that the leasehold interest was worth nothing in addition to the rent appellant was paying. He had occupied the premises for eight or nine years, and had better means of knowing, what the leasehold interest was worth than the real estate dealer whom he called as a witness, and we think the jury was warranted in giving credit to the evidence of appellant rather than the other witness he called. Upon an examination of the premises, the jury no doubt found that appellant had placed a more accurate and reliable value upon his interest in the premises than the witness who placed such a large value thereon, and in fixing compensation they gave greater weight to appellant’s evidence, as they had a right to do, than to the evidence of the other witness.

After a careful examination of all the evidence, we perceive no ground for disturbing the judgment. It. will .therefore be affirmed.

Judgment affirmed. -


author: Mr. Justice Wilkin

text:
    David A. Barry et al. v. Alexander E. Guild, Jr.

      Filed at Ottawa November 15, 1888.

    1. Assignment—defense in equity—as, on foreclosure. On the foreclosure of a mortgage by an assignee of the notes secured, the maker will have the same defense as if the suit was by the payee.
    2. Failure of consideration—as to purchase money—failure of title. The defense of failure of title, against a suit for the purchase money, is founded on the covenants in the deed of conveyance. If the deed is but a quitclaim, or contains covenants only against the acts of the grantor, the defense will be unavailing, in the absence of fraud, accident or mistake.
    3. Where the owner of land conveys it with covenants of warranty to another in trust for himself, and upon a sale procures his grantee to make a deed to the purchaser, with covenants only against the grantor’s own acts, the purchaser can not rely on the covenants in the first deed to defend against a suit for the purchase money, the presumption being that the purchaser gets such a title as he bought.
    4. Covenants fob title—rights of subsequent grantee. The grantee in a deed of conveyance can not claim the benefit of any covenants in the deeds to those from whom he takes, except those for quiet enjoyment and warranty, which run with the land.
    5. Same—covenant of warranty, and for quiet enjoyment. In an action upon the covenant for quiet enjoyment and warranty, the burden rests upon the plaintiff to show the breach of the same, and consequent damages, and the breach can only be shown by proof of an eviction, or its equivalent. There must be a union of acts of disturbance under lawful title, to constitute a breach of these covenants.
    6. Attorney’s fee—when allowable on foreclosure. Where a mortgage provides for a solicitor’s fee of $100 in a decree of foreclosure, the same may be allowed, although the mortgagee may himself sign the bill, if the proof shows he was, in fact, represented by other solicitors.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of DuPage county; the Hon. C. W. Upton, Judge, presiding.

      Mr. B. S. Chesbrough, for the appellants:
    We may start with the assumption that Guild had no better title to the notes than had his assignee, Atkinson, for, irrespective of the well settled principle that the trustee can not speculate in the subject matter of the trust, we have the doctrine established in this State, that the assignee of notes secured by mortgage, on suit to foreclose, is subject to any defense that may he maintained against the payee. Olds v. Cummings, 31 Ill. 188; Smith v. Newton, 38 id. 230; Weaver v. Wilson, 48 id. 125; Towner v. McClelland, 110 id. 542; Shippen v. Whittier, 117 id. 282.
    Lack or failure of title to land when the vendee has been evicted, has voluntarily yielded possession to the paramount title, or has never had possession, is failure of consideration, and a good defense against purchase-money notes given for such land. Gregory v. Scott, 4 Scam. 392; Davis v. McVickers, 11 Ill. 327; Slack v. McLagan, 15 id. 243; Rawle on Covenants for Title, sec. 333.
    Atkinson can be held on the covenants of his deed to Guild hy any subsequent grantee, however remote. Wead v. Larkin, 54 Ill. 489; Richard v. Bent, 59 id. 38; Bawle on Covenants for Title, (5th ed.) sec. 202, et seq.; Jones on Mortgages, sec. 1500, et seq.

    It makes no difference, in the application of this rule, that Atkinson was honestly mistaken as to the quantity of land. If the mistake was mutual, the vendee is entitled to relief for any shortage that "may occur. Champlin v. Laytin, 6 Paige, 189 ; 18 Wend. 407; Voorheer v. De Meyer, 3 Sandf. Ch. 614.
    The better doctrine is, that any covenant,—even a covenant of seizin,—if broken, makes a continuing breach, and can be relieved against on a suit to foreclose. Rice v. Goddard, 14 Pick. 293.
    Irrespective of the merits, the decree is erroneous, because it provides for a solicitor’s fee to complainant, who employed no solicitor, hut appeared pro se. A trustee can have no allowance as solicitor. Hill on Trustees, ;S!577; Jones on Mortgages, (2d ed.) sec. 1771, and cases there cited.
    A solicitor, to be entitled to a fee as provided in the trust deed, must appear of record. It is not sufficient that the master in chancery, before whom the complainant testifies, notes the fact that he is examined by a brother solicitor, or that the decree (by custom drawn up by complainant) recites that the cause was argued by counsel.
    Mr. Jambs Lloyd, for the appellee:
    When a mortgage or trust deed provides that the whole debt shall become due in default of the payment of interest, it may be foreclosed for the whole. Terry v. Trustees, 70 Ill. 236; Wisner v. Chamberlin, 117 id. 568; Cundiff v. Brokaw, 7 Bradw. 147.
    Defendants can not avail themselves of any matter of defense not stated in the answer. Insurance Co. v. Myer, 93 Ill. 271; Stevens v. Meers, 11 Bradw. 138.
    A grantor who conveys with warranty is concluded by his deed, and if he has not the land he warrants, it is his duty to acquire the same, to answer his covenants. Jones v. King, 25 Ill. 383, and cases cited; Andrus v. Coleman, 82 id. 26; White v. Patten, 24 id. 234; Wynkoop v. Cowing, 21 id. 570; Stewart v. Metcalf, 68 id. 109.
    A party having mortgaged property, is not permitted to deny his own title, but is concluded by his mortgage. His warranty estops him. Railroad Co. v. Trust Co. 49 Ill. 331; Wills v. Somers, 4 Bradw. 297; Herman on Estoppel, p. 8, sec. 3; Hall v. Insurance Co. 32 N. H. 297; Cabriska v. Railroad Co. 23 How. 391; Jones on Mortgages, sec. 682.
    No party claiming title under a deed, however remotely, can be permitted to deny any fact recited in the deed under which he claims. Byrne v. Morehouse, 22 Ill. 603; Pinckard v. Milmine, 76 id. 453.

      Where a fee simple estate is granted by deed, title of which defendant covenants to warrant and defend, he is estopped to deny the solemn fact so stated in his deed. Jones v. King, 25 Ill. 383.
    Upon bill to foreclose a mortgage given for purchase money, a mortgagor in possession can not defend on the ground of defects in the title of his vendor. He can not retain the'land under a title, which, by force of the Statute of Limitations, may ripen into a good and perfect title, and at the same time refuse to pay for the land. The well established doctrine, as we understand it to obtain, is, that where there has been no fraud, and no eviction under paramount title, as in the case at bar, the vendee, or a party in possession under him, can not controvert the title of the vendor,—that in such eases, the’ vendee, and those claiming under him, must rely for relief on the covenants in the deed of the vendor, or the contract he may have, and that the courts will not substitute for the contract of the parties, one which they did not make. Beebe v. Swartwout, 3 Gilm. 162; Smith v. Newton, 38 Ill. 230; Weaver v. Wilson, 48 id. 125; Peters v. Bowman, 98 U. S. 56; Latham v. McCann, 2. Neb. 276.
    The covenant of good right to convey is synonymous with the covenant of seizin of the grantor, and both these covenants, if broken at all, are broken when they are made, and they are personal, and do not run with the land. Greeley v. Wilcocks, 1 Johns. 2; Marston v. Hobbs, 2 Mass. 432; Hamilton v. Wilson, 1 Johns. 72.
    If there be no ingredient of fraud, and the purchaser is not evicted, or something equivalent to an eviction has not transpired, the insufficiency of the title is no ground for relief against a security given for the purchase money, or for rescinding the purchase and claiming restitution of the money. The party is remitted to his remedy on his covenants, to insure the title to the land. Abbott v. Allen, 2 Johns. Ch. 519 ; Edwards v. Bordin, 26 Wend. 109 ; Barkhamtead v. Case, 5 Conn. 528; Patton v. Taylor, 7 How. 132; Leggett v. McCarthy, 2 Edw. Ch. 124; Manor v. Washington, 3 Stroble, 171; Lamison v. Marvin, 8 Bar. (S. C.) 11; Platt v. Gilchrist, 3 Sandf. 118.
    To constitute a breach of either the covenant of warranty or that for quiet enjoyment, as we understand the law to be, there must be a union of ouster or eviction, and lawful and paramount title, otherwise there is, or can be, no right of action on the covenants, or any ground for relief in a court of equity, upon bill to foreclose a mortgage for purchase money, as in the case at bar, and there is here, as we have already seen, no claim or proof, or even pretense, of any eviction whatsoever of appellants from this twenty-acre tract in question. Beebe v. Swartwout, 3 Gilm. 162; Peters v. Bowman, 98 U. S. 56; Latham v. McCann, 2 Neb. 276; Hill v. Butler, 6 Ohio St. 207; Jones on Mortgages, secs. 1500-1521.
   Mr. Justice Wilkin

delivered the opinion of the Court:

To a bill to foreclose a purchase money mortgage, filed by appellee, appellants set up in defense failure of title to a portion of the land conveyed. On a hearing in the circuit court of DuPage county, the Hon. C. W. Upton, Judge, presiding, a decree was rendered in favor of appellee for the full balance of unpaid purchase money, and $100 solicitor’s fee, which was also claimed in the bill. Appellants appealed first to the Appellate Court for the Second District, where the decree of the circuit court was affirmed, and then to this court.

But two questions are presented by the record: First, on the facts, should appellants be allowed a reduction on the purchase price on account of failure of title; and secondly, did the court below err in allowing the solicitor’s fee.

Formerly, Martin Sauber and Charles Freihauf owned lot No. 2, in Witt’s subdivision of the west half of the north-west quarter of section 14' containing forty-eight acres, and the fraction in the south half of section 15, containing ninety-six acres, more or less, all in township 37, north, range 11, east, Du Page county, Illinois. In August, 1868, they conveyed twenty acres of the ninety-six acre tract to Charles Fitzsimmons. On the 29th of the following March they executed and delivered to John Atkinson a warranty deed, containing a description of the whole of both tracts, but following that of the ninety-six acres is the language, “excepting twenty-five acres heretofore conveyed by Sauber and Freihauf.” June 25, 1884, Atkinson conveyed, by deed with full covenants, the undivided half of both tracts, (making no reservation,) to appellee, who, on the 30th of January following, conveyed the same to George E. Gindele, by special warranty against his own acts, only. The last two deeds were intended to divest Atkinson of an undivided one-fourth interest only in the land, the other three-fourths being conveyed as mere security, the equitable title to remain in Atkinson, who continued in possession. This undivided three-fourths he sold to appellant Barry, and Gindele, at his request, on the 6th day of May, 1886, conveyed the same. This deed from Gindele to Barry contains only covenants against the acts of the grantor. Barry, at the same time, executed his four promissory notes, for $1000 each, payable to Atkinson, secured by the mortgage in suit, which is in the form of a trust deed, appellee being named therein as trustee. Atkinson has since assigned all of said notes to appellee. Barry conveyed the land to his co-defendant below, Budolph Nunnemacher. In this proceeding, any defense which could have been made against Atkinson is available against appellee, to- whom he assigned the notes. The rights of Nunnemacher and Barry are identical.

It is well settled that the defense of failure of title against suit for the purchase money is founded on the covenants in the deed of conveyance; therefore, if the deed be but a quitclaim, or contains only covenants against the acts of the grantor, the defense is unavailing. 2 Jones on Mortgages, sec. 1501, and cases cited in note; Sanford v. Traverse, 40 N. Y. 140; Niles et al. v. Harmon et al. 80 Ill. 396.

The answer of appellants does not set up the deed upon which they rely to maintain their defense, and for that reason is defective. It is clear, however, that the deed of Gindele to Barry contains no covenants upon which the defense can rest. Says Justice Nelson, in Patterson v. Taylor, 7 How. 139 : “If there is no fraud and no covenants to secure the title, the vendee is without remedy, as the vendor selling in good faith is not responsible for the goodness of his title beyond the extent of his covenants in the deed.” Bawle on Covenants for Title, 567, says: “It is one of the most settled principles of this branch of the law, that a purchaser who has received no covenants which cover the defect or incumbrance, can neither detain the purchase money nor recover it back if already paid. Unless there has been fraud, accident or mistake, he is absolutely without relief against his vendor, either at law or in equity.” See, also, Noonan v. Lee, 2 Black, 499; Peters v. Bowman, 98 U. S. 60; Hill v. Butler, 6 Ohio St. 207.

The argument of counsel for the appellants is based on the theory that “when Atkinson procured Gindele to execute the deed to Barry, he thereby, in legal effect, himself conveyed, and xoarranted with all the covenants with which he had originally conveyed to Guild.” It must be borne in mind that in this case there is neither allegation nor proof of fraud, accident or mistake. There is nothing whatever in the answer, nor is there a pretense of proof, that when Atkinson sold to Barry, and procured Gindele- to make him a deed of special warranty against the acts of Gindele only, and Barry accepted such a deed, the real, full and complete intent of the parties was not carried out. Then why say the legal effect is the same as though Atkinson had conveyed with full covenants ? On the contrary, under the allegations and evidence, or, rather, in the absence of allegation and proof to the contrary, the deed from Gindele must have the same legal effect as if it had been made by Atkinson himself. Had Gindele reconveyed to Atldnson, and the latter made this special warranty deed, no one would pretend, in the light of the authorities above cited, that this defense could be maintained. The same purpose was accomplished by Atkinson procuring Gindele to convey directly to his vendee, and, so far as this record shows, giving Barry just such a title as he' sold him. It is not the province of courts to make contracts for parties, but to give effect to and enforce them as made.

In this view of the ease, the right of appellants, as subsequent grantees of Atkinson, to avail themselves of his covenants to Guild, does not arise. They could, however, under no circumstances, claim the benefit of any of those covenants except such as attach to and run with the land, viz., for quiet enjoyment and warranty. To do so, the burthen is on them to prove a breach of such covenants, and consequent damage. The breach can only be shown by proof of an eviction. It is true, an actual eviction is no longer required, and there has been considerable discussion, and perhaps some conflict, in the decisions of courts, as to what facts must be proved in order to show an eviction, or its equivalent; but the rule dedueible from all the authorities is, that there must be a union of acts of disturbance and lawful title, to constitute a breach of the covenant for quiet enjoyment, or warranty, which is in fact equivalent.

We have looked in vain for proof in this record that Fitzsimmons, or any one claiming under him, has at any time been in the actual possession of the twenty acres to which it is claimed he has title. The only approach to it is the testimony of Gindele, who swears that he is agent of appellant Nunnemacher, and that he “saw evidence of the possession of a third party, in the shape of a derrick and tool house situated on the land, operated by a stone company.” Whether this stone company had possession, or claimed possession, of one acre or twenty, does not appear; nor is it shown that they claim to hold under the title of Fitzsimmons. For aught that appears in proof, they are mere trespassers. He also swears that he never had possession of this tract, “either as owner, or agent for Nunnemacher,—that he never could get possession." "What, if any, effort he made to do so is not stated. It is not even shown that any of the land is enclosed. For anything shown by the evidence, it is all vacant and unoccupied, except by the derrick and tool house mentioned by Gindele. There is no reason to suppose, from this record, that Barry or his grantee may not peaceably take possession of at least the greater part of the twenty acres, at pleasure. Therefore the proof is insufficient to make out the defense, even if the cove- • nants in the Atkinson deed to Guild could he availed of in this proceeding. The decree of the circuit court disallowing the defense of failure of title was right, in any view of the ease.

The answer is silent as to the allegation in the bill claiming a solicitor’s fee. The mortgage contains a provision for a solicitor’s fee of $100. Appellants offered no evidence whatever as to the right of appellee to recover it. The only point now made against its allowance is, that appellee appeared in the court below as his own solicitor, and therefore no fee can be legally allowed him. It is true that he signs the bill pro se, but there is no proof that in the litigation which followed he was not represented by other solicitors. On the contrary, there is evidence proving that he was. On the allegations and proofs there was no error in allowing the solicitor’s fee.

The decree must be affirmed.

Decree affirmed.

Mr. Justice Baker took no part in the decision of the case in this court, he having participated in the decision made therein in the Appellate Court.'


author: Mr. Justice Magruder

text:
    The Lake Shore and Michigan Southern Railway Company v. Edward S. Richards.

      Filed at Ottawa November 15, 1888.

    Í. Contract—in respect to weighing and transferring grain for shipment—contract construed as to relative rights of weigher and carrier—as to the use to be made of the weights furnished. The inventor and owner of a patent for a new device for weighing and transferring grain in cars, entered into a contract with a railway company, under which he erected the necessary buildings, etc., upon land leased to him by the company, and by which contract he was to weigh grain transferred to the company for shipment, without charge to the latter, except one-half of any saving of expense over the former mode of weighing and transferring. The patentee was to have the right to charge the owners of grain such fees as might be agreed upon between him and them, for weighing and transferring, and it was provided that the railway company was to make no use of the weights given it, for any other purpose than billing the grain to its destination. It appeared that the weights so fimiished had a market value of seventy cents per car-load of grain, and that the company, in violation of the contract, gave the weights so obtained, to connecting roads, and thereby prevented the patentee from selling them: Held, that the company was liable to him for the value of such weights so given to other companies, or, seventy cents on each car-load of grain.
    2. The contract provided that the weigher should “receive, weigh and transfer all products contemplated by this agreement, which may be delivered to his said transfer-house by or under the direction of” the company. The preamble of the contract provided, that one of its objects was “to provide a cheaper method of transferring grain,” and for this purpose to use the device of the second party. There was a covenant that “if said second party shall fail to transfer as fast as required, the said first party may transfer by such other method as it deems proper.” Another covenant provided that an additional building should be erected “to meet all the necessities of the party of the first part: ” Held, that under this contract the party of the second part was to have all the weighing and transferring which it was in the power of the company to give, to the extent of the capacity of his building and appliances.
    3. Same—custom—as controlling the effect to be given to a contract. It will not be presumed that parties make their contract with a view to a particular usage of trade, when they exclude the presumption by the terms of their contract, or where it is shown they had no knowledge of such custom.
    4. So where a railway company contracted with a party to weigh and transfer grain shipped to it from the west to be sent eastward, and it was expressly agreed that the company should make no use of the weights furnished it by the weigher, for any other piupose than billing the grain to its eastern destination, the weigher reserving the right to sell the weights to the original shippers and owners, it was held, that ■even if there was, at the time of making the contract, a custom for the railway company to furnish the western roads with the weights of the grain when ascertained, it was excluded by the express terms of the contract limiting the use of the weights to the purpose of billing the grain to the east. \
    5. Same—measure of damages, when one party is prevented by the ■other from performing. The inventor of a new method of weighing grain in cars and transferring the same, under a contract with a railway ■company for the exclusive right to weigh and transfer grain sent to and forwarded by the latter, erected the necessary buildings and appliances to enable him to perform the duties assumed, and while engaged in such weighing and transferring, the buildings used by him for that purpose were injured through the fault of the servants of the company, and while they were unfit for use, by reason of such injury, several hundred cars of grain were transferred and weighed by other means and agencies : Held, that the inventor was entitled to receive the compensation provided in the contract for the weighing and transferring of the grain in such case weighed and transferred by other means, he having, been prevented from performing that service through the fault of the railway company.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Gwynn Garnett, Judge, presiding.
    Mr. Pliny B. Smith, for the appellant:
    The court erred in finding that defendant should pay for the weights given to western railroads, irrespective of whether complainants were damnified by such action or not.
    The parties must be presumed to have contracted with reference to the universal custom of doing business among the railroads in Cook county. Insurance Co. v. Favorite, 46 Ill. 263; Lonergan v. Stewart, 55 id. 44; Insurance Co. v. Advance

      Co. 80 id. 549; Lyon v. Culbertson, 83 id. 33; Oldershaw v. Knoles, 4 Bradw. 63; Mida v. Geissman, 17 id. 207.
    If a breach of the contract was shown, the rule of damages adopted was not correct. A party can recover only such sum as he shows he has been damaged. 1 Sutherland on Damages, 17,18, 130, 74; Sedgwick on Damages, 33, 36, note 3; Wicker v. Hoppock, 6 Wall. 94; Burckhardt v. Burckhardt, 36 Ohio St, 261; Morehead v. Hyde, 38 Iowa, 382.
    The court erred in finding that complainants were entitled, to transfer and weigh all grain transferred by defendant in Cook county, and that defendant was liable to pay complainant for all products transferred by it otherwise than through his house. Burton v. Railway Co. 9 Exch. 507.
    Messrs. Smith & Pence, for the appellee:
    The court did not err in finding that defendant should pay for the weights furnished to western railways. The court did not find that defendant should pay for such weights, irrespective of whether complainant was damnified. The western railways having received these weights, which are the property of appellee, through the wrongful act of appellant, the appellant, is estopped from asserting that such railways would not have bought them from appellant, and the market price of such weights in Chicago, where such property was converted, being seventy cents per car, the appellant will be charged such market price in Chicago. Armory v. Delamirie, 1 Strange, 504;. 1 Smith’s Lead. Cas. *471; Wilson v. Railway Co. L. R. 9 Ch. App. 283; Curry v. Wilson, 48 Ala. 638; Hart v. Ten Eyck, 2 Johns. Ch. 108.
    Appellee was entitled to transfer and weigh all grain and seed transferred from cars of western railways to the cars of appellant.
    Mr. William A. Gabdneb, also for the appellee.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is a bill, filed on June 5, 1886, in the Superior Court of Cook County by Edward S. Bichards and John W. Maynard, then composing the firm of Bichards, Maynard & Co., against the Lake Shore and Michigan Southern Bailway Company, for an accounting and for the reformation of a contract. The cause was referred to a master in chancery, who took evidence and stated the account, finding that there was due from the defendant to the complainants the sum of $9686.68. The trial court refused to reform the contract, but confirmed the Master’s report as to the amount due, and decreed a recovery of said amount against the appellant company. This decree has been affirmed by the Appellate Court and is brought here by appeal from the latter court. After the cause reached the Appellate Court, Maynard died, and, upon suggestion of his death, leave was granted to Bichards to prosecute this appeal, as surviving partner.

■ Large quantities of grain, brought to Chicago from the west, and designed, either before or after its arrival in that city, for transportation to the east, is delivered in the cars by the western to the eastern railroads, and by the latter is weighed and transferred from the western to eastern cars. The work of transferring had formerly been done by placing the loaded and empty cars side by side on parallel tracks and shoveling the grain from one to the other by hand. The weighing had been done on track scales, by first weighing the loaded ear and then weighing the ear after the grain was removed, the difference between • the two weights constituting the net weight of the grain. This process was expensive, and, owing to various causes, the weights thus obtained were not strictly accurate.

The appellee Bichards was the inventor and patentee of a new process for weighing and transferring grain, which was claimed to be cheaper than the old method, and which did, in fact, furnish more accurate weights than could be had under the former system. By this new device, loaded cars of grain were shoved up upon an elevated track in a transfer house, and corresponding empty cars were placed on a track in the house below the loaded ones. The grain was then shoveled by steam shovels from the cars into hoppers, where it was weighed, and then allowed to run by force of gravity to the lower cars.

Negotiations were entered into between appellee and the appellant company with a view to the adoption by the latter of the former’s invention. These negotiations resultéd. in a written contract, dated January 2, 1884, between the Railroad Company, as party of the first part, and Richards, as party of the second part, which contract was afterwards assigned to the firm of Richards, Maynard & Co. By the terms of this agreement the Railroad Company leased to Richards for ten years at a nominal rent a piece of ground, upon which he was to erect the necessary transfer house and the approaches thereto and the hopper scales, and the company was to build and maintain on the approaches and through the house the necessary tracks, and to do all switching of loaded and empty cars to and from the transfer house at" its own expense, provided that the actual cost thereof should be taken into account in determining the fair amount to be paid to the second party as provided in covenant third, hereinafter mentioned, of the first party. Richards agreed to receive, weigh and transfer all grain, seed, etc., which might be delivered to his transfer house by the company, with promptness and dispatch, etc.

Appellee built the transfer house, with the scales and attachments, etc., at a cost of over $20,000.00. It was completed by June 24,1884, and business was done in it under the contract from that date up to June 16, 1886. The controversy between the parties arises out of this contract and out of the transactions under it. It is very" lengthy, and only those provisions will be noticed, which are material to the determination of the points in dispute.

Covenant “third” of the first party is as follows:

“ Third—Said first party further covenants and agrees that in case there shall be any saving to it, in the switching, weighing and transferring of products, in this agreement referred to, through the methods and devices adopted by said second party, over and above the actual cost of doing the same work under the ways and methods now in use by said first party, then and in that event, it will pay to second party one-half of said saving, the just and actual amount thereof to be ascertained and determined as provided in covenant ‘first’ of ‘mutual cove-' nants,’ said- amounts if found due, to be paid to said second party on or before the middle of each month, for the month preceding. ”

Covenants “third” and “fourth” of the “mutual covenants” are as follows:

“ Third—And it is further mutually covenanted and agreed, that all shipments originating at points west of Chicago, and properly billed through to eastern points, and requiring transfer through said house, shall be classed ‘through shipments,’ and be transferred in the same manner as re-consigned property, and upon the same basis of cost to said first party. It being specially understood and agreed, that under no circumstances is said first party to be charged for weights upon any transfers made through this house; but nothing in this agreement contained, shall be so construed as to prevent said second party from charging such fees as may be agreed upon between him and the owner of the property delivered for weights and transfer, and for such other service as he may render in connection therewith, and for collecting his charges as provided in following mutual covenant.
“Fowth—It is further mutually understood and agreed, that said second party is to receive his compensation for his time, labor and investments employed in building, operating, and maintaining said transfer house, entirely from the weighing of property passing through it, and from the owners thereof, and not from said first party, except as provided in covenant ‘third ’ of said first party; and said first party shall not make use of the weights obtained from said second party in the conduct of its business, for any other purpose than billing the property to destination, but upon request of said second party, said first party will collect such weighing charges as he may show are due to him, in the same manner as other advanced charges are collected, and pay the amount so collected to said second party on or before the middle of each and every month.”

The first objection made by appellant to the decree of the court below is that the defendant is required to pay for the weights given to western railroads. The Master, in his report, found that “weights were given to Western Bailroads on 12357 cars, for which said defendant was to pay to said complainants at the rate of 70 cents per car making the sum of $8649.90,” and this finding was confirmed by the decree of the chancellor. The fact, that the defendant below did give the weights on 12357 cars to western railroads, is not disputed. Clearly, this was a violation of the contract.

In the fourth “mutual covenant,” the defendant agreed that it would “not make use of the weights obtained from said second’ party in the conduct of its business for any other purpose than billing the property to destination.” The defendant carried the grain in its ears eastward from Chicago. If it had the exact weight of the grain in each car, it could figure therefrom the amount of freight to be stated in the bill of lading and to be collected at the end of the route. Bichards was willing that the Company should use the weights in billing from Chicago to the eastern destination, because it needed such weights in order to fix its own compensation for carrying the grain. But he expressly provided that the company should make no other use of such weights. Why? Because, by the terms of the fourth “mutual covenant, ” he was “to receive his compensation for his time, labor and investments employed in building, operating and maintaining said transfer-house entirely from the weighing of property passing through it,’’ etc., except that, if, by his method of weighing and transferring grain, there was any saving over and above the cost under the old method, the company was to pay him one half of such saving, as provided in the third covenant of the first party. His business was weighing and selling weights to grain receivers, shippers, owners, •commission merchants and other consignees.

If appellant, having received these weights from Bichards for the sole purpose of billing the grain to its eastern destination, could use them in any way it saw fit, then it had the power to virtually destroy the business of appellee and stop the source of his income. What did appellant do ?

The evidence and the language of the third mutual covenant show, that there was a distinction between “through shipments” and “re-consigned property.” As we understand it, "“re-consigned” grain was grain, that had been shipped from western points over western roads to commission merchants or consignees in Chicago. When originally shipped, it was not intended to be sent any further than Chicago. But, upon arriving in Chicago, it would be sold upon the track by commission men to eastern and foreign parties, who desired to have it sent forward without being put into the elevators in Chicago. In such cases, where it was to go eastward over appellant’s road, it would be transferred from the western cars, in which it arrived at Chicago, to appellant’s cars through the transfer-house. The original shippers of this grain from the initial points in the west, and the western roads, over which it was shipped, had no accurate weights of the grain and expected to get such weights in Chicago. The original shipper wanted ■exact weights so as to know how much freight he should pay, and the western railroad, or road bringing the grain from points west of Chicago, wanted exact weights so as to know how much freight to charge. It was the business of appellee to furnish these weights and make a charge for so doing. The appellant, however, in violation of its agreement, when possessecl of these weights for a particular purpose named in the contract, gave them away to the western roads and thereby prevented appellee from selling them.

The President of the appellant company, with great candor and frankness, admits, not only that these weights were given to the western roads, but that the employees of his company violated the contract in so doing. His testimony'is as follows r “I do not remember how long a time after the making of the contract it was that the knowledge of complainants’ weights being given to western roads came to me. I think I first learned it from Richards himself. I think he complained to me that our people were giving these weights to western roads. When I acquired that knowledge, I directed that western roads be not. furnished with exact weights.” • .

Appellant claims, that, before the appellee’s new method of weighing and transferring grain was adopted, it was the custom to furnish to the western roads the weights ascertained by appellant under the old method formerly in use, and that the parties must be considered to have made their contract with reference to such custom. That neither party had such cus.tom in view, when they made the contract, appears from the fact that neither Richards nor the President of the appellant company had any knowledge of such custom at that time. The latter says: “At the time that the contract was made, I did not know that this company was in the habit of giving such weights to western roads.”

But whether the custom contended for existed or not, it can not be set up to vary the terms of the express contract that appellant was only to make use of the weights for one purpose. It will not be presumed that parties contract with a view to a particular usage of trade, where they exclude the presumption by their contract, as has been done in this case. Lyon v. Culbertson, 83 Ill. 33; Lonergan v. Stewart, 55 id. 44.

A fair construction of the different clauses of the contract and of the evidence in the record shows, that the appellee’s . firm had an exclusive right to these weights and a special property in them.

The testimony also shows that the market value of the weights was seventy cents per car. Appellant, having wrongfully deprived appellee of the opportunity of selling the weights, is properly chargeable with their market value. Upon this subject appellee testifies as follows:

“There was a market value for weights according to my system, in Chicago. Whilst I was carrying on business for the Michigan Southern railway we sold weights in the market in Chicago. As to the manner of sale, the matter was settled by a meeting of the Grain Beceivers and Shippers Association, which I believe was held in August, 1884. There was a resolution passed by the association, whereby they agreed to accept our weights as final between buyer and seller, and pay us at the rate of seventy cents per car, the buyer paying one-half of the fee, and the seller the other, for which pay we rendered the weights.”

The resolution, here referred to, is in evidence. For the reasons thus indicated we think that there was no error in requiring apjiellant to pay for the weights at the rate of 70 cents per car.

The second objection to the decree is the allowance of an item of $287.86 against the appellant. In the interlocutory decree, referring the cause to the master, the court found that in July, 1885, the transfer house' was so damaged by the negligence of the appellant’s servants as to.be unfit for use for a number of days, and that, during this time, a large amount of grain was transferred by other means than the device of appellee, and that, as to this grain, complainants below were entitled to recover seventy cents per ear, less the amount of the excess in the cost of switching and transferring the cars, containing such grain, by complainants’ method, over the cost by the old method. The Master found that the number of cars, so transferred while the house was undergoing repairs, was 487, and that the amount of such excess in cost was 10.89 cents per car, which, taken from the 70 cents, left 59.11 cents per car. The 487 cars at 59.11 cents per car came to $287.86. There is no dispute about the fact that the house was injured through the fault of appellant, nor about the fact that, while it was unfit for use by reason of such injury, 487 cars were transferred and weighed by other means than through the new method.

The third objection to the decree is the allowance of an item of $748.92 against appellant. The court found that many other ears of grain besides the 487 cars above mentioned had been transferred and weighed by the appellant by other methods than through the transfer house of complainants, and that complainants were entitled to transfer and weigh all such cars to the extent of the capacity of their house, except such as the owners thereof ordered not to be so weighed. The Master found, that 1267 of such cars were transferred on the track by appellant in January, February and March 1885, which could have been transferred and weighed through the house of complainants, and that defendant below should pay the complainants for these 1267 cars, at the above rate of 59.11 cents per car, making $748.92.

We think that both of these items were properly allowed. It is claimed, that complainants below were not entitled to transfer and weigh all the grain that was to be transferred in ; Cook County from western cars to defendant’s cars for transshipment to the seaboard, and that defendant was only bound ' to weigh and transfer, through the transfer-house of complainants, such amount of grain, as it chose not to transfer and weigh by some other mode. This is the main ground upon which the payment of the items in question is resisted.

; The second covenant of the second party provides that the second party “will receive, weigh and transfer all products contemplated by this agreement which may be delivered to his said transfer house by or under the direction of said first party.” This is said to mean, that Richards was only to weigh, etc., such grain as should he delivered to him, and not necessarily all the grain, which might be in appellant’s hands for the purpose of being weighed and transferred. It is claimed, that, by the language used, the railroad Company had an option to deliver into the transfer house only such grain as it chose to deliver.

A fair construction of all the provisions of the contract leads to the conclusion that complainants were to have all the weighing and transferring, which it was in the power of the company "to give. Otherwise it would have been folly for Richards to spend over $20,000.00 in building the house and putting up the machinery at his own cost upon the company’s ground, with no arrangement for any other tracks to run into it, or be used in it, except those of the appellant company. The preamble of the contract recites that one of its objects is “to provide a cheaper method of transferring grain * * * and for this purpose to use the device of the second party.” The second of the second party’s covenants provides, that “if said second party shall fail to transfer as fast as required, the said first party may transfer by such other method as it deems proper.” This plainly implies that the company could only transfer by some other method when Richards should fail to transfer as fast as required. The proof does not show, that appellant ever made any demand upon appellee for weights and transfers that was not complied with. On the contrary the testimony, fairly considered, sustains the finding of the master, that the grain, transferred by the appellant outside of the transfer house, could have been transferred therein. Another covenant provides, that an additional building should be constructed “to meet all the necessities of the party of the first part,” in case the present transfer house should be “inadequate to meet the requirements of said party of the first part.” By these words it was manifestly contemplated by the parties, that the appellant was to look to the methods and facilities furnished by appellee to meet all its necessities and requirements in the matter of weighing and transferring grain. The same intention appears from many other clauses in the agreement, which it is not necessary to comment upon. It follows, that appellant violated the contract and deprived the complainants below of realizing a legitimate profit from their business, when it took away from them the weighing and transferring of a large amount of grain, and had it weighed and transferred elsewhere and by other methods.

The bill prayed for a reformation of the contract by the addition of a clause making the railroad company bear the entire expense of the switching and transferring of the grain passing through the transfer-house. Cross-errors are assigned by appellee upon the refusal of the chancellor to grant the prayer of the bill in this respect.

There is no provision that the company should pay anything in the matter of such expense, except one half the saving mentioned in the third covenant of the first party as above quoted. Nor is there any provision that it should pay anything in case there should be no saving. We think the trial court ruled correctly in holding that the complainants below were not entitled to a reformation of the contract in the respect here indicated.

' The judgment of the Appellate Court is affirmed.

Judgment affirmed.

Mr. Justice Bailey having heard this cause in the Appellate Court, took no part in its decision here.


author: Mr. Justice Bailey

text:
    The Hide and Leather National Bank of Chicago et al. v. Jacob Rehm, Assignee.

      Filed at Ottawa November 15, 1888.

    1. Insolvent debtors—preference among creditors—in anticipation •of making an assignment. After a debtor has determined to make an assignment of his property for the benefit of his creditors, all conveyances, transfers and other dispositions of his property or assets, made in view of his intended general assignment, whereby a preference is .given, will be held to be within the prohibition of the statute, and void.
    2. In this case, a debtor whose liabilities exceeded his assets about $50,000, who was, on January 13, 1887, indebted to a bank in the sum of $12,000, by three promissory notes, and to a leather company in the sum of $2876, evidenced by two notes, none of which notes were due, and was also indebted $1562 on another note maturing on that day, gave the holders of such notes judgment notes in lieu thereof, with warrants of attorney, authorizing the entry of judgment on such new notes. On the next morning, the debtor made a general, assignment of all his property for the benefit of his creditors, but after the entry of judgments on the notes, and the issue of executions thereon, which were levied upon all the debtor’s property. The evidence showed that at the time of the giving of the judgment notes, the debtor knew that he was insolvent, and intended making a general assignment: Held, that ns the judgments were confessed for the purpose of preferring the plaintiffs therein, they were void, and that the holders of the judgments acquired no lien in preference of the creditors, generally.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.
    Messrs. Rich & Stone, for the appellants.
    Mr. H. H. Anderson, for the appellant Moll.
    Messrs. Kraus, Mayer & Stein, for the appellee.
    Messrs. Butz & Eschenburg, for the Pfister-Bogel Leather •Company.

      Mr. F. F. Reed, and Messrs. Washburn, Bowman & Rountree, for the Lycoming Rubber Company and the National Exchange Bank.
   Mr. Justice Bailey

delivered the opinion of the Court:

This is an appeal from a judgment of the Appellate Court affirming an order of the county, court entered in the matter of the voluntary assignment of George W. Weber for the benefit of his creditors. It appears that Weber, after having carried on the business of manufacturing and dealing in boots and shoes for a considerable time, became greatly embarrassed and in fact insolvent, so that on the 13th day of January, 1887, his liabilities exceeded the value of his assets by about $50,000. On that day he was indebted to the Hide and Leather National Bank, for borrowed money, in the sum of $12,000, evidenced by three promissory notes, and to the Standard Leather Company, for merchandise, in the sum of $2876.14, evidenced by two promissory notes, none of said notes being then due. He was also indebted upon a note for $1562.86, maturing that day, given by him to Edward Moll, and which the latter had negotiated and upon which he was liable as indorser. In the afternoon of January 13, 1887, Weber executed and delivered to the Hide and Leather National Bank and to Charles F. Grey, president of the Standard Leather Company, in place of the notes they then held, judgment notes for the amounts of his indebtedness to said bank and to said company respectively, the wárrants of attorney accompanying said notes being so drawn as to authorize the immediate entry of judgments thereon. He also at the same time executed and delivered a similar judgment note to Edward Moll for the amount of the note upon which the latter was liable as indorser, Moll on his part undertaking to pay the note. Judgments were immediately entered up on all of said judgment notes, and at about six o’clock in the afternoon of the same day, executions issued thereon were levied upon all the property of Weber liable to execution.

The next morning Weber executed and delivered to Jacob Rehm, as his assignee, a general assignment of all his property for the benefit of his creditors, said assignment being delivered and recorded at about twenty-five minutes after nine o’clock in the morning of January 14, 1887. In pursuance of an agreement between the assignee and the execution creditors, an order was entered by the county court requiring the sheriff to turn over to the assignee all the property levied on by him by virtue of said' executions, to be held by the assignee subject to any valid liens in favor of the execution creditors. This being done, said creditors filed their petition praying for an order requiring the assignee to pay their judgments. Certain unpreferred creditors, of Weber also filed their petition alleging that said judgments, executions and levies constituted unlawful preferences within the meaning of the thirteenth section of the act in relation to voluntary assignments for the benefit of creditors, and praying that said levies and the liens thereby created be declared to be void.

Issues were formed upon said petitions by answers and replications, and a hearing being had on pleadings and proofs, the order brought up by this appeal was entered, finding, among other things, in substance, that at the time of the execution of said judgment notes, Weber was irretrievably insolvent and without hope of continuing in business; that he knew that his creditors were likely to take such steps as would at once take from him the control of his assets; that he knew that a crash was inevitable, and that if, in the scramble among creditors, he remained passive, the claims of certain of his creditors which he was desirous of preferring would be wholly or in part unpaid; that at the time of executing said judgment notes, he had determined to dispose of all his assets for the. benefit of his creditors, but not equally; that he then and there intended to prefer some of them, and with a view to avoiding the operation of the statute forbidding preferences he executed said judgment notes; that at the time of their execution, he had the intention of making an assignment of the residue of his property, over and above what was required to satisfy said preferences, so as to protect the same from attachments or other legal attacks, and to have the same distributed pro rata among his unpreferred creditors; that said judgment creditors, at the time they accepted said judgment notes, had knowledge of Weber’s embarrassments, and were anxious for protection and preference, and took their judgment notes with'the intention of enforcing them at once, knowing that such immediate action was indispensable in order to obtain the advantages which said notes were designed to give them. Said executions and levies were thereupon declared to be void in so far as they tended to establish a lien upon the property or funds in the hands of the assignee or to give a preference to said judgment creditors in the distribution of the assets of the insolvent. It was further ordered that the claims represented by said judgments, unless contested, should be allowed' to share in the distribution of the assets of said insolvent on an equal footing ■with other claims legally proven and established.

The evidence bearing upon the facts found by the court, though somewhat conflicting, is, in our opinion, sufficient to sustain said finding. It would serve no useful purpose for us to discuss the evidence in detail. The judgment creditors rely mainly upon the testimony of Weber in which he claims that at the time of the execution of the judgment notes, he still entertained hopes of retrieving his affairs by means of financial aid from certain friends and correspondents from whom he was then expecting to hear, and that he did not arrive at a determination.to make a general assignment until the morning of January 14. That he had no just ground for expecting such aid is abundantly shown, since it appears that at the tiine he executed the judgment notes he had in his hands definite information that no aid would come from any of the sources from which he had been seeking it. The execution of judgment notes with warrants of attorney authorizing the immediate entry of judgments for nearly $15,000 of indebtedness not yet due was not the act of a man seeking or hoping to keep his business afloat. The same thing may be said of the payment of $1000 in cash in consideration of future legal services which he is shown to have made to his attorney at or just before the execution of the judgment notes. These and various other circumstances appearing in evidence which we need not notice in detail, warrant, if they do not necessitate the conclusion, that before the execution of the judgment notes, Weber' had abandoned all hope of extricating himself from his financial embarrassments, or of continuing longer in business, and was busied solely with a consideration of the disposition to be made of his assets in view of the impending and inevitable catastrophe. So long as he is clearly shown to have entered upon the disposition of his property for the benefit of his creditors at the time he made the judgment notes, the law will indulge in no refinements in order to fix the precise point of time at which he reached the determination to make a general assignment. All that was done will rather be viewed as parts of the same transaction, so as to make it immaterial whether the determination to make the assignment in fact preceded or followed the execution of the judgment notes.

Since the decision of this court in Preston v. Spaulding, 120 Ill. 208, the law must be regarded as settled in this State that, after a debtor has made up his mind to make an assignment of his property for the benefit of his creditors, all conveyances, transfers and other dispositions of his property or assets, made in view of his intended general assignment, whereby a preference is given, will be held to be within the prohibition of the statute and void, the same as though incorporated in the deed of assignment itself. We are of the opinion that the evidence brings this case clearly within the rule thus established, and that the county court decided correctly in holding the liens obtained by the judgment creditors by virtue of the levy of their executions to be unlawful preferences and therefore void. The judgment of the Appellate Court affirming the order of the county court- will be affirmed. J

T 7 ^ ~ 7 Judgment affirmed.


author: Mr. Chief Justice Craig

text:
    The People of the State of Illinois v. The People’s Insurance Exchange.

      Filed at Ottawa November 15, 1888.

    1. Foreign insurance company—unauthorized—who is an “agent," within the statute—evidence. In order to make out a case under section 22 of the Insurance law of 1869, in an action for the penalty, the People are not required to show that the defendant was the agent of the foreign insurance company in procuring policies, in the ordinary sense of that term. The word “agent,” under that section, includes any person who, in any manner, aids in the transaction of insurance business of any company not incorporated by the laws of this State.
    2. In an action by the People under that section, to recover the penalty, any evidence which tends to show that the defendant, in procuring insurance, acted as an agent of the foreign insurance company, either directly or indirectly, or, if not such agent, aided in any manner in transacting the insurance business of unauthorized foreign companies, is proper to be submitted to the jury.
    3. "Where a party takes a power of attorney from the assured to procure insurance for the latter in a foreign insurance company not authorized to transact insurance business in this State, the various acts of such agent in procuring the insurance, are proper matters for the consideration of the jury, in connection with the power of attorney, in determining whether he was acting in good faith as agent of the assm-ed solely under the power of attorney, or whether its execution was procured as a cover to conceal the true relation in which the agent was acting.
    4. Practice—directing what the verdict shall be. "Where the evidence fairly tends to establish the plaintiff’s cause of action, it is error to instruct the jury to find for the defendant. In such case, it is for the jury to say what weight the evidence is entitled to, and whether sufficient to sustain the action.

      Appeal from the Superior Court of Cook county; the Hon. John P. Altgeld, Judge, presiding.
    Mr. George Hunt, Attorney General, and Mr. E. B. Sherman, for the People:
    The pretense that appellee was acting for the insured, only, and not for the insurance companies, is a specious subterfuge and a transparent fraud. Courts, looking to the substance of a transaction, rather than the form, will not permit the legislative will to be defeated by the most ingenious shifts and devices. All such attempts to control the law by stipulations between contracting parties must prove idle and futile.
    Appellee did, beyond any question, “aid in transacting the insurance business of insurance companies not incorporated by the laws of this State,” and which had not complied with the laws thereof.
    The court erred in instructing the jury to find for the defendant. Appellee, if not acting in good faith, was the agent of the insurance companies, and this was a question of fact peculiarly in the province of the jury to determine. Pierce v. People, 106 Ill. 11; Ford v. Insurance Co. 6 Bush, 133; Lamb v. Lamb, 6 Biss. 420; Rev. Stat. chap. 73, sec. 22.
    Mr. E. H. Gary, for the appellee:
    Appellee acted exclusively as the agent of the assured, under specific written authority, with instructions where to place the insurance. Insurance Co. v. Rubin, 79 Ill. 402; Insurance Co. v. Swigert, 11 Bradw. 590; Insurance Co. v. Weary, 4 id. 74; Insurance Co. v. Thomas, 10 id. 545.
    The court did not err in instructing the jury to find for the defendant, as there was no evidence in the case to raise a question of fact for the jury. Simmons v. Railroad Co. 110 Ill. 346.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was an action of debt, brought in the name of the People, against the People’s Insurance Exchange, to recover penalties provided by section 22 of the act of March 11,1869, entitled “An act to incorjtorate and to govern fire, marine and inland navigation insurance companies.”

After the evidence had all been introduced, the court instructed the jury, that under the evidence their verdict must be for the defendant, and the giving of this instruction is assigned as error. It is conceded that in a proper case the jury may be instructed to find for the defendant, but in this case it is contended that there was evidence introduced which tended to prove plaintiff’s cause of action, and that it was the duty of the court to allow the jury to pass upon the evidence, under proper instructions from the court.

In Simmons v. Chicago and Tomah Railroad Co. 110 Ill. 344, where the court excluded all of plaintiff’s evidence and directed the jury to find for the defendant, it is said: “There may be decisions to be found which hold that if there is any evidence, —even a scintilla,—tending to support the plaintiff’s case, it must be submitted to the jury. But we think the more reasonable rule which has now come to be established by the better authority is, that when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is so insufficient to support a verdict for the plaintiff that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant.”

In Frazer v. Howe, 106 Ill. 573, in speaking in reference to the practice of withdrawing the evidence from the jury or directing the jury to find for the defendant, it is said: “If there is no evidence before the jury, on a material issue, in favor of the party holding the affirmative of that issue, on which the jury could, in the eye of the law, reasonably find in his favor, the court may exclude the evidence, or direct the jury to find against the party sb holding the affirmative; but when there is such evidence before the jury, it must be left to them to determine its weight and effect.” "

Under the rule announced in the cases cited, if the evidence introduced on the trial reasonably tended to prove the plaintiff’s cause of action, the instruction was erroneous. We are not here called upon to determine whether the evidence was sufficient to entitle plaintiff to recover, or the weight to be given to the evidence, but we will look to the evidence for the purpose of determining whether it fairly tended to establish plaintiff’s cause of action, and if it did, then the court erred in taking it from the jury by the instruction.

Section 22 of the act of 1869 provides: “It shall not be lawful for any insurance company * * * organized under the laws of any other State of the United States, or any foreign government, for any of the purposes specified in this act, directly or indirectly, to take risks or transact any business of insurance in this State, unless possessed of the amount of actual capital required of similar companies formed under the provisions of this act; and any such company desiring to transact any such business as aforesaid, by any agent or agents in this State, shall first appoint an attorney in this State, on whom process of law can be served, and file in the office of the Auditor of Public Accounts a written instrument, duly signed and sealed, certifying such appointment. * * * Nor shall it be lawful for any agent or agents to act for any company or companies referred to in this section, directly or indirectly, in taking risks or transacting the business of fire or inland navigation insurance in this State, without procuring from the Auditor of Public Accounts a certificate of authority stating that such company has complied with all the requisitions of this act which apply to such companies, and the name of the attorney appointed to act for the company. * * * Any violation of any of the provisions of this act shall subject the party violating the .same to a penalty of $500 for each violation. * * * The term ‘agent or agents,’ used in this section shall include an acknowledged agent, surveyor, broker, or any other person or persons who shall, in any manner, aid in transacting the insurance business of any insurance company not incorporated by the laws of this State.”

The appellee, the People’s Insurance Exchange, is a corporation organized under the general law in relation to corporations, approved April 18,1872. The objects of the corporation, as stated in the articles of association, are “to afford the public an ‘Exchange,’ where the most reliable information can always be had on all matters relating to insurance of every kind,— life, fire, marine, inland, accident, or otherwise,—and a responsible .agency for parties seeking insurance, or skill and experience necessary in the proper adjustment of losses’ preparation of claims, or prosecution of suits at law in insurance cases.”

The evidence shows that the defendant had an office in the city of Chicago, and was engaged in soliciting and procuring insurance, delivering the policies and collecting the premiums; that it secured insurance for James Turner in five different insurance companies organized in other States, which were not authorized to do business in the State of Illinois. The de- * fendant also, as appeared from the evidence, procured insurance for various other parties, in insurance companies doing business in other States, which weie not allowed to transact the business of insurance in this State. But it is claimed, as a defense to the action, that the defendant corporation, in procuring the insurance, collecting the premiums and delivering the policies, was acting as agent of the insured, and not as agent of the insurance companies, and that it is not liable for the penalties named in the statute, although the insurance companies issuing policies of'insurance were not authorized to transact business in this State; and in support of this position attention is called to the fact that at the beginning of business with any one of the foreign insurance companies, a circular was sent to such company, as follows:

“Dear Sir: The laws of the State are considered quite stringent, and provide pains and penalties quite severe for any one acting, directly or indirectly, as agent for any insurance company not duly authorized to do business in this State.. There is no question about the right of any individual to procure his own insurance where he pleases, and no law can be enacted by any State abridging that right, so in all cases where we send you application for insurance on property in Illinois, we wish to have it distinctly understood by you, as we have it understood by the assured, that we are the agents and representatives of the assured only, and we would request that in all cases you forward your bills for premiums to us, made out in the name of the assured, with the commission deducted, by way of rebate to assured, namely:
“This will make the matter right at' both ends of the line, and will clearly establish the fact between all parties concerned that we are acting only for the assured, as their agent and attorney in the matter.
“Very respectfully, W. L. Caldwell,
Treasurer and Secretary.”

In addition to the above, before procuring a policy of insurance, the defendant corporation required the insured to execute a power of attorney, as follows:

“Know all men by these presents, That the People’s Insurance Exchange of Chicago, Illinois, is-hereby appointed our agent and attorney to procure for us insurance as follows, viz.: $.....on.........as per, forms approved and authorized by us; and it is agreed that for all such insurance placed in companies duly authorized to do business in the State of-Illinois, when the policies are accepted by us, premium at the rate of ... . per cent shall be paid. For all insurance placed in companies not duly authorized to do business in the State of Illinois, when policy is accepted by us, a premium at the rate of ... . per cent shall be paid. It is further agreed that all difference in premium by reduction of the above rate, or any rebate, brokerage or commission, that said People’s Insurance Exchange may be able to secure for us, shall be paid to them, and the same shall be in full for all compensation as services rendered as agents aforesaid.
“Witness our hands and seals,” etc.

In the argument, much importance is attached to these documents by counsel for appellee. He says: “The evidence in this case clearly shows that every act done by the appellee was under specific and definite authority and instruction, by written power of attorney, to act for and on behalf of the assured.” If the decision of the question involved rested solely upon the two documents referred to, there might be much force in the argument; but such is not the case. The various acts of the defendant corporation in the procuring of the insurance were proper matters for the consideration of the jury, in connection with the power of attorney, for the purpose of determining whether the corporation was acting, in good faith, as agent of the insured solely -under the power of attorney, or whether the execution of that paper was obtained as a mere cover to conceal the true relation in which the corporation was acting. It appears from the evidence, that the insurance was solicited by the defendant corporation. The policies were issued upon the representation of its officers, the insurance’ companies relying solely upon their statements as to the condition and situation of the property to be insured. The policies were sent by mail to the defendant. It took charge of them, and delivered them to the insured, collected the premium and remitted the same to the insurance companies, deducting commissions. In certain cases, policies were sent to the defendant corporation, and its officers submitted them to the insured for their examination and acceptance, or rejection. If they should he accepted, the amount of insurance would be paid -over to the defendant. If rejected, defendant returned the policies to the insufance companies. Were all these acts done as agent for the persons who desired insurance, or were they done in a different capacity ? We think the question was one for the jury, upon due consideration of all the evidence.

In order to make out a case, the plaintiff was not required to establish the fact that the defendant was the agent for the foreign insurance companies, in the sense the term “agent” is ordinarily used, as seems to be supposed by counsel for appellee in his argument. The act under which the action wras instituted has an important bearing on this question. It says : “The term ‘agent’ or ‘agents,’ used in this section, shall include an acknowledged agent, surveyor, broker, or any other person or persons who shall, in any manner, aid in transacting the insurance business of any insurance company not incorporated by the laws of this State.” Suppose the defendant corporation was not the agent of the foreign insurance companies, in the ordinary sense of that term, still if it in any manner aided these companies in the transaction of the business, it will, within the meaning of the act, be liable. (Pierce v. People, 106 Ill. 18.) Whether, therefore, the defendant corporation had in any manner aided in transacting the insurance business in which the foreign insurance companies were engaged, was a question for the jury, under all the evidence, and that question of fact should not have been taken from the jury by the instruction of the court.

The judgment of the Superior Court will be reversed, and the cause remanded.

Judgment reversed.