author: Mr. Justice Culbertson

text:
    People of City of Centralia, Petitioners-Appellees, v. City of Centralia, Robert M. Washburn, and William C. Stephens, Objectors-Appellants. In the Matter of Petition of Josie Mable Copple et al., Relative to Sale of Municipal Airport Property Filed with City Clerk of Centralia January 24, 1953, and Objections Thereto.
    Term No. 53-O-1.

      Opinion filed December 14, 1953.
    Rehearing denied February 23, 1954.
    Released for publication February 26, 1954.
    William C. Stephens, City Attorney, and Glendon C. Hodson, Special Attorney, both of Centralia, for appellants ; Glendon C. Hodson, of Centraba, of counsel.
    Orville L. Wollard, of Centralia, for appellees.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from a decree entered as in chancery in the county court of Marion county, overruling objections of appellants, The City of Centralia, and Robert M. Washburn, and William C. Stephens (hereinafter called objectors), to a petition filed by appellees, The People of the City of Centralia, under section 19 — 66, of article 19, of chapter 24, of 1951 Illinois Revised Statutes [Jones Ill. Stats. Ann. 21.1508].

In the petition filed by appellees a proposed ordinance was set forth with a request that the City Council of the City of Centralia pass the ordinance relative to the sale of municipal airport property and requesting, if the City Council did not pass the ordinance without alterations, within thirty days, that the proposed ordinance be submitted to a vote of the electors of the City of Centralia, at a special election. The petition recited that numerous attempts had been made to establish a municipal airport on certain real estate owned by the city, resulting in financial loss and excessive expense without commensurate benefits, and that said real estate was not necessary, appropriate, required for the use of, profitable to, or for the best interest of the city to retain. The proposed ordinance set forth in the petition would have required the sale of the real estate upon which the airport is situated at public sale to the highest bidder.

After the petition was filed with the city clerk, certain corporate authorities of the City of Centralia, that is, the mayor and city attorney, filed objections to the sufficiency of the petition, and thereupon the petition and objections were transferred to the county court, as provided by law. These objections specifically challenged the sufficiency of the petition on grounds that the proposal contained therein was not legislative in character, and therefore was not a proper subject for the operation of the statute permitting ordinances legislative in character to be initiated by the electors of a municipality under the initiative section of the Commission Form of Government Act. The corporate authorities of Centralia contend that before any real estate belonging to a municipality can be sold or conveyed, it must affirmatively appear that the corporate authorities have made an express finding of fact, in compliance with the mandate of the statute that such real estate is no longer necessary, appropriate, required for the use of, profitable to, or for the best interests of the city; and that the function of the corporate authorities in arriving at such an opinion concerning the propriety of the sale of real estate belonging to the municipality is administrative and executive in nature. It is therefore contended that an ordinance to sell the land occupied by the municipal airport proposed by the petition under consideration is an ordinance, the subject matter of which, is not legislative in character, and therefore, not a proper ordinance under the initiative section herein referred to.

The trial court entered a decree finding that the petition was sufficient, and complied with the requirements of the initiative section of the Commission Form of Government Act, and likewise found that the proposed ordinance was legislative in character.

The appellees filed a motion to dismiss the appeal in this court on the ground that the Appellate Court is without jurisdiction to entertain the appeal; that the re-call and initiative statutes, under which the proceeding is inaugurated is a special statutory proceeding, as to which there is no provision for appeal or review by the Appellate Court of orders of the county court, or of matters arising out of the initiative section; and that the ordinance submitted to the court for determination is not one duly passed by the City Council, or a vote of the people, upon which this court can act, or render any judicial decision, in that the ordinance is in the legislative process at the time of appeal. The motion to dismiss the appeal has been taken with the case for consideration.

The petition and objections in this case were filed pursuant to the initiative section of the Commission Form of Municipal Government Act (1951 Illinois Revised Statutes, chapter 24, section 19 — 66 [Jones Ill. Stats. Ann. 21.1508]). That section provides that the jurisdiction and manner of testing the sufficiency of the petition shall be as provided in section 19 — 59 [Jones Ill. Stats. Ann. 21.1501] of the Act, which section sets up the method of procedure to be used in determining the sufficiency of the petition. The decree of the county court is expressly made effective unless an appeal is perfected under section 19 — 71 [Jones Ill. Stats. Ann. 21.1513] of the Act, and under such section 19 — 71 of the Act an appeal is provided for in any proceeding had under the provisions of section 39 — 59 of the Act. Appeals are to be perfected under the provisions of the Civil Practice Act (1951 Illinois Revised Statutes, chapter 24, section 19 — 73 [Jones Ill. Stats. Ann. 21.1515]). In reading these sections together by reference, so that each is considered as a part of the other, in accordance with the precedents set forth in Melton v. City of Paris, 333 Ill. 190, 195, it is obvious that the right to appeal in this case is specifically provided for in the Act creating the proceedings under which the petition to initiate the ordinance was filed. The motion to dismiss the appeal will, therefore, he denied.

The sale of municipally-owned real estate is under the direct control of the state legislature, and the legislature may control and dispose of city property, subject only to constitutional provisions relating to local and special legislation (Ward v. Field Museum, 241 Ill. 496, 508). The legislature has properly conferred upon municipal authorities administrative discretion concerning the execution of statutory provisions relating to the sale or conveyance of municipal property (People ex rel. Johns v. Thompson, 341 Ill. 166, 169).

By the terms of certain provisions of the Cities and Villages Act (1951 Illinois Revised Statutes, chapter 24, section 59 — 1 [Jones Ill. Stats. Ann. 21.1975]) the legislature has delegated the discretion to sell real estate held by the city for public use to the corporate authorities when “in the opinion of the corporate authorities” the real estate is no longer necessary, appropriate, required for the use of, profitable to, or for the best interest of the municipality. Where an authority or discretion is expressly delegated to municipal authorities it cannot be exercised by any other body or persons, but must be exercised in accordance with the statute (City of Sullivan v. Cloe, 277 Ill. 56, 60). No provision appears in the Cities and Villages Act granting the electors of the city the right to sell and convey city-owned real estate. The legislature is vested with the discretion to determine whether the consent of the people in the locality shall first be obtained, or whether the municipal authorities shall act directly themselves (People ex rel. Bogerson v. Crawley, 274 Ill. 139, 146).

The right of the electors or legal voters to require the City Council to submit an ordinance to the vote of the people exists only by virtue of statutory provisions which the legislature has the right to impose or withhold (City of Mt. Olive v. Braje, 366 Ill. 132), and the legislature has, by statutory provision, limited the right of legal voters to initiate ordinances in cases where the subject matter of the proposed ordinance is legislative in character (1951 Illinois Revised Statutes, chapter 24, section 19 — 66 [Jones Ill. Stats. Amn. 21.1508]). As stated by the Illinois Supreme Court in the case of People ex rel. Holvey v. Kapp, 355 Ill. 596, at 602, “Both legislative and executive powers are possessed by municipal corporations. Often executive powers are vested in the council or legislative body and exercised by motion, resolution, or ordinance. Executive action evidenced by ordinance or resolution does not subject such action to the power of the referendum, which is restricted to legislative action as distinguished from mere administrative action. The form or name does not change the essential nature of the real step taken.” The court goes on to point out that the power to initiate legislation under the statutes providing for initiation and referendum in the conduct of municipal affairs does not extend to such functions of city government as are purely administrative in character.

The vital question in the case before us, therefore, is whether or not the subject matter of the ordinance proposed in the petition is legislative in character. It has frequently been observed in testing the legislative character of an Act that an ordinance which is legislative in character initiates, or enacts a permanent law, or lays down a rule of conduct, or course of policy, for the guidance of citizens or their officers, and it has been noted that an ordinance which simply puts into execution previously enacted laws is administrative or executive in character. The Illinois Supreme Court, in People v. Board of Education, 380 Ill. 311, points out that while it is at times difficult to draw the distinction as to whether the exercise of a power is administrative or legislative, the true distinction is between a delegation of power to make the law which involves a discretion as to what the law shall be, and conferring an authority or discretion as to its execution to be exercised under and pursuant to the law. Municipal authorities who exercise discretion and judgment in performing their duties, but who do not, while executing the law under which they act, make or declare any law or rule of conduct, or construe or apply any law, are not exercising legislative or judicial powers, but are acting in a ministerial or administrative capacity (Mitchell v. Lowden, 288 Ill. 327, 341).

In the case before us, if we apply the doctrine stated to the facts under consideration, it is obvious ■ that the municipal authorities in passing an ordinance finding that a particular piece of real estate held by the city for public use is no longer needed and directing its sale, would not be exercising legislative power, or making a law, or declaring what the law should be regarding the sale of real estate of a municipality. In such event the authorities would be exercising administrative discretion as an agency of the State of Illinois, by finding the facts as to when the retention or disposition of a particular tract of real estate should be undertaken as being no longer necessary, appropriate, required for the use of, profitable to, or for the best interest of the city. The authorities would be merely exercising the laws established by the legislature directing how city-owned real estate must be sold, and would be in performance of executive and administrative duties as designated agents of the state government. There is no authority by statute for substituting the conclusions of the petitioners on the questions of fact as to whether the real estate is necessary, etc. for the city. The right of initiative under the statute applies only to an ordinance in exercise of the legislative functions of the municipality (People ex rel. Holvey v. Kapp, supra). Since the sale of a particular piece of real estate under the facts and circumstances involves the exercise of an administrative duty required of city authorities, the ordinance referred to in the petition was obviously not legislative in character, and the finding that the petition was sufficient was in error. The decree of the county court of Marion county should, therefore, be reversed and the cause will be remanded with directions that the petition be dismissed.

Motion to dismiss appeal denied. Reversed and remanded, with directions.

Scheineman, P. J. and Bardens, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Peinberg

license: Public Domain

text:
    Helen S. Milis et al., Appellees, v. Chicago Transit Authority, Appellant, and Joseph Vetrano, Defendant.
    Gen. No. 46,048.

      Opinion filed January 20, 1954.
    Released for publication February 25, 1954.
    Thomas J. Strachan, Jr., James 0. Dwight, Chester A. Wynne, and Arthur J. Donovan, all of Chicago, for appellant; Halbert 0. Crews, of Chicago, of counsel.
    Joseph Barbera, of Chicago, for certain appellees, and Kamin & Gleason, of Chicago, for certain other appellee.
   Mr. Presiding Justice Peinberg

delivered the opinion of the court.

This appeal is by defendant Chicago Transit Authority from a judgment based on a verdict of the jury, against it and in favor of the several plaintiffs, in an action for personal injuries resulting from the alleged negligence of the said defendant. The co-defendant, Joseph Vetrano, was found not guilty. A previous trial resulted in a verdict of not guilty for defendant Transit Authority and guilty against the co-defendant, Joseph Vetrano. This verdict was set aside by the trial court and a new trial granted. A petition by defendant Transit Authority for leave to appeal from the order granting the new trial was denied by this court.

The evidence upon the second trial establishes the following facts: Defendant operated its streetcar in a southerly direction on Sangamon Street. Plaintiffs were passengers in a taxicab driven by defendant Ve-trano in a westerly direction on Monroe Street. A collision occurred between the streetcar and the taxi in the intersection of the two streets. The taxi came to rest on the sidewalk and past the curb of the southwest corner of the intersection. The streetcar became derailed and was in the street with the front end against the curb.

The witness Rees, a fire captain attached to the Fire Department of the City of Chicago, and apparently disinterested, arrived at the scene shortly after the collision and before either vehicle was moved. He testified that he found the cab on the west side of the streetcar, beyond the sidewalk, the right side of the cab smashed and the front of the streetcar marked.

Police officer McCann, also a disinterested witness, who likewise arrived at the scene of the collision, testified that he found the cab. on the west sidewalk, about 6 feet west of the streetcar, its right side smashed in and damage to the front of the streetcar; that the cab was west and north of the front of the streetcar; and that there was no “Stop” sign at the intersection of either street.

Defendant’s motorman testified that he had stopped the car at Monroe Street to discharge a passenger; that he then looked to both sides of the street and saw nothing coming; that he proceeded, and when he got three-fourths of the way across Monroe Street he heard a screech of brakes, and as he turned around he saw the cab hit the left side of the streetcar about 12 to 15 feet behind him; that the streetcar came to rest on the sidewalk at the southwest corner of the intersection ; that it caused the streetcar to derail and was carried over to the sidewalk; and that “the front of the streetcar when it stopped was about 15 feet south of Monroe Street.”

Defendant Vetrano testified that as he approached Sangamon Street, he saw the streetcar about 150 feet north of Monroe Street; that he put on his brakes and put the car in second speed, thinking he had plenty of time to make the crossing; that when it appeared that the streetcar was not going to stop but was continuing at the same speed, he put on more speed; that the front end of the streetcar hit the cab on the right side between the two doors of the cab; that the streetcar came to rest at the southwest corner; that the trucks of the streetcar were up against both curbs, and the streetcar was then east of his cab; and that he noticed the car was swaying from side to side as it was approaching Monroe Street. There was conflict in the testimony as to the speeds of the taxi and the streetcar immediately preceding the collision.

Defendant urges for reversal of the judgment (a) that the verdict is against the manifest weight of the evidence; (b) that erroneous instructions were given; and (c) that the damages awarded are excessive. We shall discuss the errors assigned in the order stated.

The jury could well conclude from the evidence showing the location of the taxi on the sidewalk; the streetcar coming to rest against the curb after the collision; the picture in evidence of the damage to the automobile; and the damage to the front of the streetcar, that the streetcar ran into the taxi and not that the taxi ran into the streetcar some 12 to 15 feet behind where the motorman stood, as testified to by him. We are compelled to hold that the verdict is not against the manifest weight of the evidence.

Defendant contends that co-defendant Vetrano was guilty of negligence, and that his negligence was the sole and proximate cause of the collision. Plaintiffs on the other hand contend, and we think rightfully so upon this evidence, that if defendant was guilty of the negligence charged, defendant Vetrano’s negligence, if any, would not bar plaintiffs’ right to recover unless it could be said that Yetrano’s negligence was the sole proximate cause of the collision, since the negligence of defendant Yetrano cannot in this instance be imputed to plaintiffs as passengers in the taxi. Grifenhan v. Chicago Rys. Co., 299 Ill. 590, 596. The question as to which of the defendants was guilty of the negligence that proximately caused the collision was primarily for the jury and was settled by its verdict.

Defendant complains of given instructions on behalf of plaintiffs: No. 1, which referred to damages; No. 6, which stated among other things that it was not necessary that any witness “should have expressed an opinion as to the amount of such damages”; and No. 12, which referred to the material allegations of the complaint; and No. 19 for defendant Yetrano. We think there is no merit in defendant’s claim of error as to the instructions given for plaintiffs. We shall, however, discuss the objections raised as to Yetrano’s instruction No. 19. That instruction reads:

“The Court instructs you that the defendant, Joseph Yetrano, was not the guarantor of the absolute safety of his passengers; and in this case if the jury believes from the preponderance of the evidence that the injuries to the plaintiffs, if any, were caused by the negligence of the defendant, Chicago Transit Authority, which negligence was the sole and proximate cause of the accident and which under the facts and circumstances surrounding said accident could not have been guarded against by the exercise of sound judgment and by the most vigilant foresight and care on the part of said defendant, Joseph Yetrano, then you are instructed you should find this defendant not guilty.”

Defendant argues that this instruction is a peremptory one, directing a verdict, and that the language, “were caused by the negligence of the defendant, Chicago Transit Authority, which negligence was the sole and proximate cause of the accident,” without limiting it to negligence, “if any,” results in assuming a fact to exist, which was in dispute, relying on Grimm v. Chicago and North Western Railway Co., 331 Ill. App. 601; Garvey v. Chicago Rys. Co., 339 Ill. 276; Grifenhan v. Chicago Rys. Co., 299 Ill. 590, and Hanson v. Trust Company of Chicago, 380 Ill. 194.

Instruction No. 19 was tendered by co-defendant Vetrano. It directed a verdict as to him and did not direct a verdict against defendant Transit Authority. Strictly speaking, this instruction was not a peremptory instruction against defendant Transit Authority, as in some of the eases cited. The instruction is subject to the criticism that it assumes a fact in dispute, the same as the instruction in the Grimm case, where it was held reversible error. The Grimm case, however, is distinguishable, because the instruction there directed a verdict against the defendant complaining. In the Garvey case the instruction which was held reversible error was condemned because, as the court said (p. 287):

“It is a settled principle that an instruction should not draw the attention of the jury to particular facts and that it is improper to inject an argument into an instruction. Where an instruction selects one item of evidence, or one fact disclosed by the evidence, and states that a certain conclusion does not follow as a matter of law from that fact, it is calculated to mislead and confuse the jury.”

In the Grifenhan case, the instruction complained of was condemned by the court not only because it assumed the existence of negligence, but also improperly placed the burden on the defendant of showing that the negligence of the driver of the automobile in which the plaintiff was a passenger was the proximate cause of the injury.

The instant instruction is not of the type discussed in those cases. It does not direct a verdict for the plaintiffs or against the defendant Transit Authority. Does the instant instruction mislead or confuse the jury, or is it calculated to so prejudice the defendant as to call for a reversal? Whether it actually misled the jury is not susceptible of legal proof. To some degree it is conjectural whether it may have misled the jury. The very fact that in the first trial of the case, the instant instruction was given, and a verdict of not guilty was returned as to the Transit Authority, would dispel the inference that such an instruction would mislead or confuse a jury in the instant case. We are further persuaded that the jury was not misled or confused because, in the giving of instructions No. 12 for plaintiffs, and No. 23 for defendant Transit Authority, the jury was clearly and correctly instructed upon that subject. Instruction No. 12, after reciting the material averments of the complaint, concluded with the statement that if the jury found that the defendant Chicago Transit Authority was negligent therein, and that the collision in question occurred as a direct and proximate result of said negligence, “if any,” ....

Instruction No. 23 for defendant Transit Authority informed the jury that the burden of proof was not upon defendant to show that it was not guilty of the specific negligence charged in the complaint, but the burden is upon the plaintiffs to prove that the defendant, Chicago Transit Authority, is guilty, and to adhere strictly to said rule as to the burden of proof. We think the error of instruction No. 19, in failing to include “if any” after the word “negligence,” is in the instant case harmless error. It was well stated in Kavanaugh v. Washburn, 320 Ill. App. 250, 255:

“Juries are not versed in legal phraseology nor fine legal distinctions. Instructions are handed to the trial judge at the close of the case and just before argument. Naturally, they are partisan in character, with each litigant endeavoring to present his contentions in as skillful and forceful manner as possible. It is inevitable that a trial judge in the midst of a hotly contested case will sometimes fail to detect all of the language of the various instructions that may be inadvertently used. However, modern tendency favors a liberal application of the harmless error doctrine to instructions when it appears the rights of the complaining party have in no way been prejudiced. This situation is well expressed by the Supreme Court of this State in the following language:

“ ‘The office of instructions is to give information to the jury concerning the law of the case for immediate application to the subject matter before them. The test, then, is not what meaning the ingenuity of counsel can at leisure attribute to the instructions, but how and in what sense, under the evidence before them and the circumstances of the trial, ordinary men acting as jurors will understand the instructions.’ Reivitz v. Chicago Rapid Transit Co., 327 Ill. 207, 213.”

As to each of the four plaintiffs, defendant argues the damages awarded are excessive. It would unduly extend this opinion to detail the evidence as to the extent of the injuries sustained by each. We have carefully examined the evidence and are satisfied that the damages awarded are not so excessive as to imply that the verdict is the result of passion and prejudice. Applying to this question of damages the doctrine in Howard v. Baltimore & Ohio Chicago Terminal R. Co., 327 Ill. App. 83, and Kavale v. Morton Salt Co., 242 Ill. App. 205, affirmed 329 Ill. 445, that “the decline in the purchasing power of money” must be considered in determining the question, and the reasoning in Ford v. Friel, 330 Ill. App. 136, we are constrained to hold that the damages are not excessive.

We find no reversible error in the record, and the judgment is accordingly affirmed.

Affirmed.

Kilby and Lews, JJ., concur.


author: Mr. Justice Kjley

text:
    David Turner, Trading as Four Star Clothing, Appellant, v. Joe Katz, Appellee.
    Gen. No. 46,154.

      Opinion filed January 20, 1954.
    Released for publication February 25, 1954.
    Jacob Stagman, of Chicago, for appellant; Erwin H. Greenberg, of Chicago, of connsel.

      David F. Silverzweig, of Chicago, for appellee.
   Mr. Justice Kjley

delivered the opinion of the court.

This is an action to recover a $500 “deposit” under an alleged oral agreement for a written lease. The issues were tried before the court, without a jury, and resulted in a finding and judgment for defendant. Plaintiff’s motion to set aside the judgment or in the alternative for a new trial were denied and he has appealed.

On March 15, 1950 defendant owned the premises at 939 W. Roosevelt Road, Chicago and agreed to lease the premises to plaintiff. On that date plaintiff gave defendant a check for $500 and defendant gave plaintiff the keys to the premises. Subsequently plaintiff rejected a preferred written lease. He demanded return of the $500. Demand was refused and this suit followed.

The issues made by the pleadings were (a) whether the lease was to commence November 15,1950 as plaintiff alleges, or December 1, 1950 as defendant alleges; (b) whether the lease was to be for 5 years or from November 15, 1950 to April 30, 1954; (c) whether the lease was to provide for plaintiff or defendant to maintain the heating system and furnish heat; (d) whether plaintiff was to have an option to renew; (e) whether the $500 was a deposit or payment for rent for the period from November 15, 1950 to December 31, 1950 of “the said term”; (f) whether defendant tendered a lease upon the agreed terms.

There was no evidence to support plaintiff’s allegations that the term was to commence December 1, 1950 or that the proposed original lease was to be for five years from that date. The defendant’s evidence is that the lease was to commence November 15, 1950 and was to expire April 30,1954.

The plaintiff contends here that because the oral agreement was not itself valid as a lease under the statute of frauds, chap. 59, par. 2, Ill. Rev. Stat. (1953) [Jones Ill. Stats. Ann. 55.02], and since no written lease was made, he was entitled to the return of the $500 “deposit.”

The record does not show that plaintiff raised the question of the violation of the statute of frauds in any way at the trial for a ruling by the trial court. Under Eule 44 of the municipal court, plaintiff was entitled to present the question of law by motion to strike the defense on the ground that the lease was unenforceable under the statute of frauds. Since the point was not raised, and no ruling on the question was made at the trial, the question is not properly before us for review. In any event the trial court was justified, as we shall indicate hereafter, in finding that there was an oral agreement for a written lease and that under the oral agreement, in consideration of plaintiff paying defendant $500, defendant turned over the keys, thereby delivering possession of the premises to plaintiff. Under this latter aspect of the oral agreement the plaintiff paid rent for, and was given possession of the premises for the period of, from November 15, 1950 to January 1, 1951. This part of the oral agreement was executed and the statute would have no application. Tivnen v. Gebhart, 268 Ill. App. 259. Moreover plaintiff’s contention suggests the use of the statute as a “sword instead of a shield” inasmuch as he is not defending a suit to enforce a contract within the statute, but is affirmatively attempting to nullify an agreement alleged to be within the statute. Ryan v. Shoenberger, 224 Ill. App. 308.

We have decided that there was an oral agreement for six weeks to be merged into a future lease for a five-year term. The trial court was justified in concluding that the written proposal tendered by defendant contained the terms agreed to and consequently plaintiff should not recover because under the findings of the court he, and not the defendant, rejected the offer of a written lease thereby breaking the oral agreement for the written lease. Ryan v. Shoenberger; and 169 A. L. R. 187.

We cannot say that the trial court should not have believed defendant and his witness rather than plaintiff and his witness in the light of what transpired on November 15, 1950. On that day plaintiff gave defendant a check for $500 which bore the endorsement “Rent for 939 Roosevelt Rd. up to Dec. 31, 1950, lease to follow.” Upon being handed this check defendant turned over the keys to the premises to plaintiff. The court was entitled to find that the parties had negotiated for a couple of months prior to November 15th; that they agreed upon a rental of $350 per month and settled upon $500 for the six-week period from November 15th to January 1st; that plaintiff was told the lease would provide for his maintenance of the heating system and his paying for the heat, and that the cost of any change in the heating system would have to be borne by plaintiff; that defendant had his lawyer prepare a written lease which plaintiff rejected as unsatisfactory; that in rejecting the written proposals plaintiff made no objection to the requirement about the heating; that defendant’s lawyer subsequently had telephone conversations with plaintiff in which the latter suggested corrections and changes in the written proposal; that the attorney thereupon drafted a new proposal containing a conditional option which had not been in the original proposal, also a provision giving plaintiff a priority of purchase right in the event of a sale of the building; that the second written proposal was also rejected by plaintiff on the ground that there was no right to sublet; that during the six-week period to January 1,1951 the premises were in condition to be occupied and that plaintiff had constructive possession; and that on January 15th defendant rented the premises to another.

On the basis of these findings the trial court was justified in concluding that the parties agreed orally on November 15, 1950 to make a written lease of the premises for a term commencing on that date; that that day in consideration of the payment of a stipulated rental of $500 defendant gave possession of the premises for a six-week period; that in the event of the execution of the written lease the shorter term would merge into the longer term; that plaintiff defaulted in executing a written lease containing the terms agreed upon; and that defendant was entitled to claim the $500 as rental for the six-week term. We cannot say that the court erred in making that decision.

• For the reasons given the judgment is affirmed.

Judgment affirmed.

Feinberg, P. J. and Lews, J., concur.


author: Mr. Justice Kilby

text:
    People of State of Illinois, Defendant in Error, v. Marie Clark, Plaintiff in Error.
    Gen. No. 46,228.

      Opinion filed January 20, 1954.
    Rehearing denied and opinion modified February 25, 1954.
    Released for publication February 25, 1954.
    Bernard B. Brody, of Chicago, for plaintiff in error.
    John Gutknecht, State’s Attorney, of Chicago, for defendant in error; John T. Gallagher, Rudolph L. Janega, Arthur F. Manning, and Albert Zemel, Assistant State’s Attorneys, all of Chicago, of counsel.
   Mr. Justice Kilby

delivered the opinion of the court.

This is a writ of error to review a judgment upon a verdict finding defendant guilty of the offense of soliciting to prostitution in violation of chap. 38, par. 163, Ill. Rev. Stat. (1953) [Jones Ill. Stats. Ann. 37.129].

The information charged that on December 16, 1952 defendant “Did then and there willfully and unlawfully solicit to prostitution in a certain place to-wit; Post Time Tavern 357 N. Clark St. in the City of Chicago

At the close of the State’s case, defendant made a motion for directed verdict, challenging, among other things, the sufficiency of the information. The only proper purpose of the motion was to present a question of law, whether there was any evidence tending to prove the elements of the offense charged. It was not a proper function of this motion to raise questions of sufficiency of the information. If the information was fatally defective there was no offense charged upon which the jury could make a finding. The motion for directed verdict was made again at the close of the evidence, again challenging the sufficiency of the information. After verdict, the information was challenged by motion in arrest of judgment. The several motions were denied.

The information recites that the judge examined the complaining witness and heard evidence before giving leave to file the information. The testimony shows that a facsimile of the judge’s signature was stamped on the information. Defendant contends the endorsement was insufficient because it was not written by the judge. If there is merit to the contention, and we do not decide whether it has merit, we think defendant waived the objection by going to trial on the information.

There was a serious defect in the information as originally drawn. It did not specify a person alleged to have been solicited to prostitution. People v. Rice, 383 Ill. 584. The information was amended after the evidence was in by, inserting the word “him” after the word “solicit.” The word “him” referred to the complaining witness whose name appeared in the information.

In the Rice case the indictment was quashed on the defendant’s motion before plea. Here defendant made no motion to quash. Defendant went to trial and sought to attack the information by the motion to direct a verdict. When asked by the court why no motion to quash was made, defendant’s attorney said: “If I had moved to quash before the State had put in its case, they might amend. The State has rested and can no longer amend.”

Defendant misconceived the law with respect to the amendment of the information. The rule is that informations have always been amendable at common law the same as declarations, but that indictments are amendable only by grand juries. Truitt v. People, 88 Ill. 518; Long v. People, 135 Ill. 435; People v. Wancoski, 209 Ill. App. 47. We think that the information was amendable at the trial by adding the word “him.”

People v. Rice, 383 Ill. 584, is not authority to support defendant because in the instant case there was no motion to quash. The reason given by defendant’s attorney why a motion was not made indicates a stratagem. At the trial defendant made no claim that she was taken by surprise, or otherwise put to disadvantage by the amendment. No motion was made based on a claim of surprise or need of time to prepare to meet the amendment. The record does not justify an inference of prejudice because of the amendment.

We find no prejudicial error in the conduct of the trial. The trial court properly denied the motion for directed verdict because there was evidence tending to prove the offense. The motion in arrest of judgment was also properly denied because the amendment supplied the deficiency at which this motion was directed.

We have read the testimony and are of the opinion that the evidence in the record leaves no reasonable doubt of the defendant’s guilt. The jury was justified in finding that the complaining witness was approached by defendant in the tavern; that she asked bim to buy her a drink; that she said that after her show she would be free to go to his hotel or “her place for a little party”; that this would cost him nothing “but you will have to buy me a few drinks at the bar” ; that defendant said that “she liked her sex too”; that the complaining witness had one bottle of beer and the bartender filled defendant’s “shot glass” with wine 35 times; that she drank two of the glasses of wine but the balance she poured in a bottle which the bartender emptied; that each drink cost 85 cents and when paid for with a dollar bill, defendant would “push” the 15 cents change back to the bartender for a tip; that the complaining witness gave the bartender a ten dollar bill which was kept and expended by the bartender repeatedly pouring out wine into three glasses; that finally defendant told the bartender to “check her out” and the bartender wrote something on a tab; that the drinks were poured “pretty fast,” the complaining witness paid for them “automatically” and when he objected, defendant said, “My number is going on any minute now, and when I am finished I will go out with you”; and that when he left she was still at the bar.

We see no prejudicial error in the court’s ruling upon objections to testimony. Standing alone the words used by defendant may not have amounted to the solicitation alleged. The nature of the case, however, required considerable latitude in presenting a context in which the words and conduct of defendant could be assessed.

For the reasons given the judgment is affirmed.

Judgment affirmed.

Feinberg, P. J. and.Lews, J., concur.


author: Mr. Justice Lews

text:
    Jonathan B. Cook, Appellant, v. Edward P. Lauten, Appellee.
    Gen. No. 46,064.

      Opinion filed January 20, 1954.
    Released for publication February 25, 1954.
    . Bertram A. Stone, of Chicago, for appellant.
    Halfpenny & Hahn, and Moses, Bachrach & Kennedy, all of Chicago, for appellee; William C. Wines, of Chicago, of counsel.
   Mr. Justice Lews

delivered the opinion of the court.

Plaintiff filed a complaint in chancery praying for an accounting and damages resulting from an alleged breach of partnership agreement, a temporary injunction, and for general relief. The cause was referred to a master and in conformity with the findings and recommendations in his report a decree was entered. Plaintiff appeals.

In a former appeal, Cook v. Lauten, 335 Ill. App. 92, this court reversed a decree for a temporary injunction. The decree here appealed from fixed the damages sustained by defendant as a result of the improvident issuance of a temporary injunction and dismissed the cause for want of equity.

Plaintiff, a certified public accountant, employed defendant in 1924. In 1928, when defendant became qualified as a certified public accountant, the plaintiff prepared the first of a series of written instruments purporting to establish the relationship of the parties and other conditions. The legal effect and validity of some of these instruments have been challenged by defendant. We shall pass this question for the moment.

In the latter part of 1937 one Trimarco was employed by the firm at a weekly salary of fifty dollars without participation in profits and, according to defendant’s testimony, as of December 1, 1937 Trimarco, plaintiff, and defendant formed a partnership. In March 1942 Trimarco left the firm and thereafter plaintiff and defendant continued to conduct the firm’s business as a partnership until November 19, 1946 when defendant established quarters elsewhere, in the office of one of the clients of the former partnership. Several days before the dissolution of the partnership, defendant, without the knowledge and consent of plaintiff, clandestinely removed most of the files, records and equipment of the firm to defendant’s new quarters and, according to the allegations of the complaint, some of the secretaries and accountants employed by the firm were induced by defendant to leave the firm and were thereafter employed by him.

The master found, in substance, that the relationship of employer and employee existed between the plaintiff and defendant prior to 1937 and that thereafter they were partners until the dissolution of the firm in 1946; that the good will of the partnership belongs equally to both partners and therefore neither party may claim damages from the other by virtue of losing any good will; that the equipment, such as adding machines, typewriters, etc., taken from the offices of the firm was returned to plaintiff a few months after the dissolution of the partnership; that there was no evidence offered by the plaintiff tending to prove damages, if any, resulting from the use of the equipment of the partnership; that there was not sufficient proof to establish that defendant actually induced employees to leave the firm and become associated with him; and that there was no proof of any damage which may have been sustained by plaintiff because of the loss of said employees.

Finally the master concluded that the plaintiff has failed to sustain the material allegations of the complaint and hence is not entitled to the relief prayed.

Plaintiff contends that a partnership was formed by virtue of the first agreement executed by the parties on March 10, 1928 and continued without change until November 19, 1946. In this instrument, titled “agreement for junior partnership,” plaintiff and defendant are designated as “managing partner” and “junior co-partner,” respectively, of Jonathan B. Cook & Company. It empowers the plaintiff to add to or change the personnel of the so-called “partnership” by the addition of other “junior partners,” or direct their withdrawal at his own discretion, and states that the “managing partner” shall be the sole owner of the assets and good will of the firm. It also provides for a fixed annual salary and bonus as compensation for the defendant, and, at the discretion of plaintiff, defendant is permitted to advance specified amounts to be used in the firm’s business. Such advances, however, were to be treated as loans to the firm, and the repayment thereof as the individual obligation of the “managing partner.” In case of the death of defendant the agreement was to terminate and defendant’s estate be entitled only to unpaid earned salary and bonus. In the event of death of the plaintiff “his executors or trustee or administrator shall continue the agreement” with the other junior partners, if any.

In our former opinion, 335 Ill. App. 92, we said, at page 97: “Defendant cannot be an employee and a copartner of plaintiff at the same time in the same business, since a partner is a co-owner. (Lindley v. Murphy, 387 Ill. 506.) A partnership is a contract of mutual agency, each partner acting as a principal in his own behalf and as agent for his copartner (Schumann-Heink v. Folsom, 328 Ill. 321) and each partner is possessed of a joint interest in the whole but does not own any separate part of the partnership property (Swirsky v. Horwich, 382 Ill. 468).”

Defendant says that the agreement for a “junior partnership” negatives every one of the elements essential to constitute a partnership relation. We agree. Defendant’s salary is fixed regardless of profits or losses of the alleged partnership and plaintiff as managing partner may by unilateral action alter defendant’s share of the profit at will. Upon the death of defendant he is only entitled to unpaid salary and a bonus computed for the calendar month preceding his death. In short, defendant was to have no interest in the so-called “partnership” except his unpaid salary and one month’s bonus.

Another instrument prepared by plaintiff and executed by defendant in 1933, titled “personal good faith,” provided among other things that for a period of five years after the termination of “my said employment” defendant would not become engaged in any public accounting business conducted at any place within seventy-five miles of the location of any office “of my employer.” The acknowledgment of the notary public of the defendant’s signature in this instrument certifies that defendant “is personally known to me and known to me to be an employee ... of Jonathan B. Cook.” Repeated use in this instrument of the terms “employee,” “employer,” and “employment,” tends in our view to prove that the parties did not intend to create a partnership relation by the former instrument in 1928. Moreover, the plaintiff admitted that in an answer filed in certain proceedings in the Municipal Court of Chicago, No. 4016270, he denied that the firm of Jonathan B. Cook & Company was a partnership and averred that from November 20, 1926 to May 22, 1937 he was at that time the sole proprietor. We think there is ample evidence to support the master’s finding that the relationship of employer and employee existed between the parties until 1937 and that thereafter they were partners until the dissolution of the partnership in 1946.

The parties have stipulated that there was a settlement of accounts between them for the period prior to November 1946.

Plaintiff contends, however, that he is entitled to an accounting and damages for the wrongful appropriation of the good will of the business by the defendant. In support of his contention plaintiff relies on Whitman v. Jones, 322 Mass. 340, Hutchins v. Page, 204 Mass. 284, and other cases in foreign jurisdictions involving commercial partnerships.

The work of certified public accountants requires skill, learning, and experience. It is professional in its character, and in the instant case the parties themselves so regarded their calling. The general rule is that a professional partnership, the reputation of which depends on the individual skill of the members, such as partnerships of attorneys or physicians, has no good will to be distributed as a firm asset on its dissolution. (40 Am. Jur., § 27, p. 316.) See 44 A. L. R., p. 524. In Douthart v. Logan, 86 Ill. App. 294, affirmed in 190 Ill. 243, this court held in effect that no good will exists except in cases of commercial or trade partnerships, and, adverting to Bates on PartnersMp, the court said, at page 311: “Good will is not strictly applicable to a professional partnership, for its business has no local existence, but is entirely personal, consisting in a confidence in the integrity and ability of the individual.” To the same effect see Acme Harvester Co. v. Craver, 110 Ill. App. 413, affirmed in 209 Ill. 483. Under the authorities last cited we are impelled to hold that the partnership here in question, upon its dissolution, has no good will to be accounted for as an asset, especially where, as here, there is no provision in the partnership agreement relating to good will as an asset.

From an examination of the record, consisting of more than fifteen hundred pages, we are of the opinion that the evidence is sufficient to support the master’s findings and that the decree based on these findings is proper. The other questions argued by the defendant but not discussed in this opinion have not been overlooked. We find nothing in them that requires discussion.

For the reasons given, the decree is affirmed.

Decree affirmed.

Feinberg, P. J. and Kiley, J., concur.


text:
    Hattie Thomas, Appellee, v. Oscar F. Douglas, Trading as Douglas Funeral Home, Appellant.
    Gen. No. 46,106.

      Opinion filed January 20, 1954.
    Rehearing denied February 9, 1954.
    Released for publication February 25, 1954.
    Samuel Levin, of Chicago, for appellant.
    Aaron H. Payne, James Y. Carter, and Lycurgus J. Conner, all of Chicago, for appellee; Lycurgus J. Conner, of Chicago, of counsel.
   Mr. Justice Lews

delivered the opinion of the court.

Defendant appeals from a judgment in the sum of $3,375 entered upon the verdict of a jury in an action to recover damages for personal injuries resulting from the plaintiff falling into a window well on defendant’s premises while walking upon a private passageway located on land adjoining defendant’s premises and adjacent to the window well. Defendant’s motions for judgment notwithstanding the verdict and in the alternative for a new trial were overruled. Afterward defendant’s alternative motion for a new trial was withdrawn.

The accident happened about nine o’clock p. m. December 21, 1947 on the premises located at 4521 South State Street, a north and south street in the City of Chicago, Cook county, Illinois. The premises were improved by two buildings. Plaintiff lived on the second floor of the rear building. The building on the front of the lot faces west on State Street, is four stories high, and contains apartments except on the first floor where defendant operates a funeral parlor. There are two entrances on State Street, one on the north to the funeral parlor and the other on the south leading to the apartments on the second floor. At the east end of the hall on the second floor there are two stairways, one leading to the upper floors and another from the second floor to the ground floor. The latter stairway can be used as a means of ingress and egress by occupants of the rear building who enter defendant’s premises from State Street. Along the north wall of the front building about fifty feet east of the building line on State Street there is a recess or setback extending from the roof to about three feet below the surface of the ground, containing windows on each floor including the basement apartment underneath defendant’s funeral parlor. The window well in the basement apartment is encased in concrete and is designed to furnish light and air. This window well was constructed before the defendant acquired the premises. The rear building, where the plaintiff resided, has two entrances, one on the west side facing the east end of the front building, and the other on the east side about eight or ten feet west of a fifteen-foot public alley at the rear of the premises, running parallel to State Street. There is a passageway approximately two feet wide between defendant’s building and a dwelling house immediately to the north.

About eight o’clock p. m. on December 21,1947 plaintiff, a waitress, left her place of employment and proceeded to her home. She alighted from a northbound State Street car at the intersection of 46th Street and then walked north on the east side of State Street to defendant’s premises, where she turned into the passageway along the north wall of defendant’s building and proceeded east until she fell into the window well.

Plaintiff testified that she had resided in defendant’s premises for about six weeks preceding the accident; that she always used the alley entrance in going to or from her apartment; that she had never used the passageway prior to the accident; that she did not know of its existence and that at the time of the accident the passageway was dark.

There is also evidence tending to prove that for several years prior to the occurrence all the occupants of the rear building, where plaintiff lived, had used the passageway in question; that on the night of the accident a street light on Wabash Avenue, which is the next street east of and paralleling State Street, cast light into the passageway used by the plaintiff, sufficient to see through it; that there was no illumination in the window well or in the passageway, from the windows in the north wall of the defendant’s building; and that there was no abutment, barrier, or fence in front of the window well immediately adjoining the passageway.

One of plaintiff’s witnesses, a former tenant in the rear building, also testified in substance that she feared using the alley entrance at any time.

Defendant contends that plaintiff is guilty of contributory negligence as a matter of law.

The only question presented by defendant’s motion for judgment notwithstanding the verdict is whether there was any evidence which, when taken with its aspect most favorable to the plaintiff proved or tended to prove plaintiff’s cause of action. If there is any evidence tending to sustain every element of plaintiff’s case necessary to be proved to sustain a cause of action it is immaterial upon which side the evidence is introduced. (Berg v. New York Cent. R. Co., 391 Ill. 52; Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300.) In reviewing the action of the trial court we cannot reweigh the evidence and we look only at that which is favorable to plaintiff. (George v. E. I. du Pont de Nemours & Co., 348 Ill. App. 495.)

The question of contributory negligence is preeminently for consideration of the jury as such negligence cannot be defined in exact terms, and unless it can be said that the action of the injured person is clearly and palpably negligent it is not within the province of the court to substitute its judgment for that of the jury. (Blumb v. Getz, 366 Ill. 273; Moffitt v. O. L. D. Forwarding Co., 331 Ill. App. 278.)

Defendant relies on Hart v. Sullivan, 324 Ill. App. 243 and cases there cited. In the Hart case the deceased sustained fatal injuries resulting from the unlighted condition of a stairway landing in defendant’s building. This court said, at page 247:

“Without familiarity with the premises and without any urgent necessity to do so, deceased persisted in ascending the steps, crossing the first landing, and advancing through the door to the west in utter darkness. Such conduct has been held to be contributory negligence as a matter of law.”

In our view the facts in the Hart case and other cases relied on by defendant are clearly distinguishable from this case. The governing principle has been clearly stated in Dively v. Penn-Pittsburgh Corporation, 332 Pa. 65, where that court classified cases of this type into two groups. The court said, at page 69: “There are those in which a person wanders around in a place absolutely dark and where, though not a trespasser, there is no reasonable necessity for his presence. In such cases recovery is denied. There are other cases where there is some fairly compelling reason for walking in a place which, though dark, is not utterly devoid of light. Under such circumstances contributory negligence will not be declared as a matter of law.” In the instant case there is no evidence tending to show that plaintiff knew or that she or the other tenants of the rear building were informed by defendant that she could gain access to her home in the rear building through the south entrance on State Street by walking up a flight of stairs at the front of the building and down another at the rear. Defendant had a duty to furnish plaintiff with a reasonably safe means of ingress to and egress from her home at night. Here plaintiff, a woman forty years of age, was, on the night of the accident, confronted with making a choice between the use of a dark public alley which testimony showed women feared, and a private passageway in which there was sufficient light to enable her to see persons in it. Under the circumstances shown by the evidence we think reasonable men could differ as to whether plaintiff was guilty of contributory negligence in electing to use the passageway to reach her home, and that a jury could find there was a reasonable necessity for plaintiff’s presence in the passageway at the time she suffered the injuries here complained of.

Defendant insists that he owes no duty to plaintiff since there is no charge in the complaint or proof that defendant owned or controlled the passageway. Defendant says that plaintiff was a trespasser upon the private passageway at the time of the occurrence. Defendant not being the owner of the land upon which the passageway is located is in no position to complain, nor is it material whether defendant owned or controlled the passageway on the night of the occurrence. The evidence shows that all of the tenants in the rear building had used the passageway for several years before the accident. The unguarded window well adjacent to the passageway constituted a dangerous condition. In our view it is unnecessary to discuss the other issues raised, such as plaintiff’s alleged voluntary intoxication on the night of the accident. This like the other questions, we think, presented issues of fact which the jury resolved in plaintiff’s favor.

For the reasons stated, the judgment is affirmed.

Judgment affirmed.

Feinberg, P. J. and Ejley, J., concur.


author: Mr. Presiding Justice Scheineman

text:
    Olin Industries, Inc., Plaintiff-Appellant, v. Andrew J. Wuellner and John C. Fallon, Copartners, Defendants-Appellees.
    Term No. 53-O-11.

      Opinion filed January 26, 1954.
    Rehearing denied February 23, 1954.
    Released for publication February 26, 1954.
    Emerson Baetz, of Alton, for appellant.
    Verlie, Eastman & Schlafly, of Alton, and Pope & Driemeyer, of East St. Louis, for appellees; J. F. Schlafly, Jr., of Alton, and Frank M. Rain, of East St. Louis, of counsel.
   Mr. Presiding Justice Scheineman

delivered the opinion of the court.

The defendants are a construction firm which contracted to build a shop for the plaintiff corporation. The shop was operating in production during construction. One of plaintiff’s employees was injured while at work, by a pane of glass falling from a metal sash, which was tilted open at a 45-degree angle. The employee received workmen’s compensation, and the employer, as subrogee, brought this suit, alleging that the window was not installed according to specifications, and that the defendants were negligent.

The case was heard by the court without a jury and resulted in a judgment for defendants. The plaintiff appeals on the sole ground that the judgment is against the manifest weight of the evidence.

The evidence indicates that the sash in question was an upper window of several tiers, each containing six lights; that the injured employee proceeded to open a lower window, and then a pane of glass (15" by 19") fell from the upper tier and struck him. The glass was set in the sash with small metal clips, and then glazed with a plastic compound, which would remain elastic, instead of becoming hard like putty. The glazing was on the underneath side as the window stood open. The metal sash was drilled with nine holes for each pane, in which the clips could be inserted, but the pane in question had been affixed with four clips.

The specifications for these windows provided an option of several named types of plastic putty, one of which was used. They also provided that the “glass shall be pressed to an even bearing in putty, firmly clipped, and rabbets puttied to neat true bevels and sight lines.”

From the foregoing, the plaintiff contends that the elastic compound could not be adequate to hold the glass in place, that insufficient clips were used, and that the glass was not firmly clipped in place or it would not have fallen.

For the defense, the glazier who did the work, and other construction men and engineers testified in substance as follows:

That ordinary putty sets hard in a couple of days, but the elastic compound specified for use in the metal sash required two or three weeks to set. That it retains some elasticity, but when set it has considerable strength, and will hold the glass. That metal sash may be slightly uneven and the clips are inserted where the glass makes good contact with the mullion, that two or three clips are commonly used, never more than four, and that number only in movable sash. That the clips help hold the glass in place until the glazing compound sets.

There was also testimony that this accident occurred' about three days after the windows had been placed, that plaintiff’s shop foreman had been warned of danger of operating them, that the mechanism to open and close the windows was not yet attached, and the foreman had been told, if he desired to change the ventilation, he should ask defendants’ employees to do so.

The professional engineer who inspected the work in progress for the architect testified that, after this occurrence, he had eight or ten lights removed for inspection, and found that they had all been properly installed. An attempt was made to impeach him with a previous statement that he found only a few clips in place. He explained that he had not been particularly looking for clips, but to see if the glass was well bedded and puttied in, and that it had been. He stuck to his assertion that he found no improper installation, and he had accepted the work in behalf of the architect.

In rebuttal, two engineers employed by plaintiff testified that, in their opinion, this type of glazing compound would not give adequate support to the glass without clips. Neither expressed any opinion as to how many clips were usual or proper.

Thus there is some contradiction in the testimony as to the ultimate strength of the glazing compound. But it remains uncontradicted that four is the maximum number of clips used in each window light, and that this particular pane had been attached with four, and had been glazed with the type of compound specified. Plaintiff argues that it was not possible to produce any evidence of negligent workmanship on the broken pane, and that, as it was one of a series, proof of defects in others of the series was sufficient. Citing Wigmore, Evidence, 3rd Ed. Vol. II, pp. 418-423.

The citation has no application here, because the other panes of glass inspected were not found defective. Assuming some of them had less than four clips, that cannot raise any inference of less in this particular pane, because plaintiff’s own safety inspector had found it did contain the required number.

We conclude that there was substantial evidence upon which to find that the installation of the window was according to specifications, and by the usual and customary methods, and that if the given warning had been observed until the compound had set, ' the glass would have been adequately supported.

The mere fact that there is some contradiction in the evidence would not justify this court in reaching a different conclusion than that of the trier of fact. Becherer v. Belleville-St. Louis Coach Co., 322 Ill. App. 37, 42. To be against the “manifest weight of the evidence” requires that an opposite conclusion be clearly evident. Schneiderman v. Interstate Transit Lines, 331 Ill. App. 143, 147.

In our opinion the judgment was amply justified, there is no basis for holding it to be contrary to the manifest weight of the evidence," and the judgment is affirmed.

Judgment affirmed.

Bardens and Culbertson, JJ., concur.


author: Mr. Justice Wheat

text:
    Geneva L. Gerber and Marilyn E. Ransom, a Minor, by Geneva L. Gerber, her Guardian, Plaintiffs. Geneva L. Ransom and Marilyn Ransom Engel, Appellants, v. The Equitable Life Assurance Society of the United States, Defendant-Appellee.
    Gen. No. 9,927.

      Opinion filed January 28, 1954.
    Rehearing denied February 26, 1954.
    Released for publication February 26, 1954.
    G. W. Horsley, John B. Crain, and L. H. Lenz, all of Springfield, for appellants.
    Hunter, Kavanagh, McLaughlin & Bond, of Peoria, for appellee; E. D. McLaughlin of Peoria, of counsel.
   Mr. Justice Wheat

delivered the opinion of the court.

Plaintiffs-appellants Geneva L. Ransom and Marilyn Ransom Engel, appeal from an adverse judgment entered by the circuit court of Sangamon county in their action to collect the adjusted principal amount of three insurance policies issued by defendant-appellee, The Equitable Life Assurance Society of the United States, upon the life of James I. Ransom, now deceased.

Plaintiffs, as beneficiaries of the policies, contend the defendant did not prove its affirmative defense that the insured, prior to his death, exercised an option to surrender the policies in question and receive the cash surrender value thereof. This theory is based upon the following stipulated facts.

Each of the policies in question provided:

. . Within three months after . . . default (of premium payment) this policy may be surrendered by the insured . . . who may elect one of the following options: (a) To receive the cash surrender value of this policy; . . .”

The premiums on each of the policies were in default but within such three-month period the following events occurred:

October 8,1934: The insured mailed a letter addressed to defendant at its branch office in Peoria, Illinois, requesting payment of the cash surrender value of the three policies which were enclosed with the letter.

October 9, 1934: The insured’s letter with enclosures was received by defendant’s cashier at its Peoria branch office.

October 9, 1934: Defendant’s assistant cashier forwarded the policies together with a company form requesting issuance of a check for the cash surrender value thereof to defendant’s home office at New York. The insured’s letter of October 8 was retained at the Peoria branch office.

October 11, 1934: The policies and form request were received by defendant at its home office in New York.

October 14,1934: The insured died.

Thereafter, the following occurred:

October 16, 1934: The defendant’s home office issued and mailed to its cashier at its Peoria branch office its check payable to the insured in the amount of $67.02, being the net cash surrender value of the three policies.

October 16, 1934: Defendant’s assistant cashier at the branch office wrote the home office advising that word had been received of the insured’s death. October 17,1934: The policies in question were marked “cancelled” by defendant at its home office.

October 18, 1934: The assistant cashier’s letter of the 16th advising of the insured’s death was received by the home office.

October 19, 1934: Defendant’s home office notified the cashier at its Peoria branch that the check issued in payment of the cash surrender value of the policies might be endorsed by the duly appointed personal representative of the insured.

October 20, 1934: Proof of the insured’s death was delivered on behalf of plaintiffs to defendant’s Peoria branch cashier, and the defendant’s check in payment of the surrender value of the policies was thereafter refused by the insured’s executor.

It was further stipulated

“. . . That the cashier and the assistant-cashier of the defendant in charge of its office at 301 South Adams Street, Peoria, Illinois, had power and authority to accept payment of any and all sums due to the defendant and to issue official receipts therefor, and to receive (but not to act upon or approve) proofs of death, proofs of loss, and communications for and on behalf of the company, but neither the said cashier nor assistant-cashiers, nor the sales agents had authority to modify policies, or in the event of lapse, to reinstate policies, nor to extend the time of payment of any premium or to make loans thereon, or to alter the provisions as to payments to beneficiaries, or to make cash settlements upon surrender of policies.”

Plaintiffs further point out that the insurance application, which is a part of the policies, provides “that no agent or other person except the president, a vice-president, the secretary, the treasurer or a registrar of the Society has power to make or modify any contract on behalf of the Society. . .” Plaintiffs accordingly contend that the insurer must show that the request for payment was communicated to some one of these officers or, at the very least, that defendant’s agents at its home office had commenced processing the requested payment before the insured’s death. As tending to show that the insured’s request was not in fact so communicated to anyone in defendant’s home office having authority to act upon it, plaintiffs emphasize that, by the express terms of the policy,

“the granting of any surrender value . . . may be deferred . . . for a period not exceeding ninety days after receipt of application therefor,”

and that defendant’s check did not issue nor were the policies marked “cancelled” until after the insured’s death. Finally, as it is stipulated that defendant’s Peoria branch cashier had no authority to make cash settlements or enter into contracts on defendant’s behalf, plaintiffs urge that communication to him of the insured’s request for payment “had no more effect than if made to a stranger.”

It is not clear from plaintiffs’ argument that their theory is that the insured’s letter is to be regarded, within the framework of contract law, as an offer which would become binding only on acceptance by defendant or its authorized agent. In any event, to support their contention that the insured’s request must have been communicated to some one of the above enumerated officers of defendant, plaintiffs rely upon Fidelity Mutual Life Ins. Co. v. Merchants’ and Mechanics’ Bank, 71 F.2d 777.

Examination of the reported decision in that case clearly reveals, however, that the court did not so hold either expressly or by implication. The court did hold that the intention of the bank, to which the policy in that case has been assigned, to exercise the option contained in the policy there in question must have been communicated “to the (insurance) company” to be effective. The court further held that, in the circumstances of that case, the company’s soliciting agent or local manager who received the communication there relied upon, did so as agent for the bank, not for the company, and that his authority to act on behalf of the insurer was so limited that communication to him of intention to exercise the option was not communication to the insurance company. Moreover, at the outset of its discussion of the applicable law the court made the following statement which is of decisive significance here:

“The right of the bank as assignee to surrender the policy for . . . cash measured by its surrender value was an absolute option dependent only on the bank’s will and act, and not requiring any consent on the part of the insurance company. The (written option contained in the policy) was a continuing offer on the company’s part kept open for a sufficient consideration and requiring only the acceptance of the bank by its making the election to take the cash surrender value

The same doctrine is firmly established not only in Illinois but in other jurisdictions as well. (Roth v. Kaptowsky, 393 Ill. 484; Tucker v. Equitable Life Assurance Society, 174 La. 598, 141 So. 71; Northwestern Mutual Life Insurance Co. v. Joseph, 31 Ky. L. Rep. 714, 103 S. W. 317; Decker v. New York Life Insurance Co., 94 Utah 166, 76 P.2d 568; Lovett v. Phoenix Mutual Life Ins. Co., 44 F. Supp. 888; Grown Point Iron Co. v. Aetna Ins. Co., 127 N. Y. 608, 28 N. E. 653.)

From these decisions it is clear that in the instant case the insured’s letter requesting payment of the cash surrender value of the policies was not, as plaintiffs seem to suggest, an offer which was subject to acceptance or rejection by the defendant. To the contrary, that letter constituted an acceptance of one of several continuing written offers or options made by the defendant to the insured in the insurance contract.

The decisive question upon this appeal is whether, during the insured’s lifetime, his letter became effective as an acceptance of the defendant’s offer to pay the cash surrender value of the policy. The defendant has not suggested that it became effective upon being mailed (see Fidelity Mutual Life Ins. Co. v. Merchants’ and Mechanics’ Bank, supra, and cases cited therein), and accordingly this court expresses no opinion as to that question on this record.

Consequently, in accordance with the general rule applicable in such circumstances, the insured’s letter never became an effective acceptance unless, during his lifetime, it was received by the defendant or someone authorized by defendant to receive such communications on its behalf. (See Restatement of the Law of Contracts, Sec. 69.) As the corporate defendant, however personified, can act only through its agents, the letter necessarily became effective, if at all, upon receipt by such agent duly authorized.

Section 69 of the Restatement of the Law of Contracts states that a written acceptance is to be considered “received,” in such circumstances,

“. . . when the writing comes into the possession of the person addressed or some person authorized by Tiim to receive it for him or when it is deposited in some place which he has authorized as the place for this or similar communications to be deposited for him.”

In the “Comment” upon this section it is stated that “a written communication may be received though it is not read or though it does not even reach the hands of the person to whom it is addressed.” While no Illinois decisions have come to this court’s attention which are expressly decisive, the law of this State is, in the opinion of this court, established by clear implication in accord with the Restatement, at least to the extent indicated in the quoted comment. Thus it has been held in cases where acceptance by mail was authorized or contemplated that the acceptance is effective upon being posted. Where this rule is, for one reason or another, inapplicable, it has been held that an acceptance is effective when “received” by the offeror and there is no suggestion in the decisions so holding that a written acceptance is not to be considered “received” until read by or placed in the hand of the addressee. (See Estate Stove Co, v. Kenney, 234 Ill. App. 366; Wagner v. McClay, 306 Ill. 560; Geary v. Great Atlantic & Pacific Tea Co., 366 Ill. 625; McKeown v. Western Union Telegraph Co., 240 Ill. App. 559.) Whether the Illinois law is in accord with that part of the Restatement rule to the effect that deposit of the writing in a place authorized by the offeror constitutes receipt, there is no occasion to decide on this record because it is stipulated here that the insured’s letter was “received by the cashier” of the defendant at its Peoria office on October 9, 1934, which was during the insured’s lifetime. It is further stipulated that the “cashier and assistant-cashier of the defendant in charge of its (Peoria) office had power and authority ... to receive communications for and on behalf of the company . . .”

Accordingly, in the opinion of this court it is clear from the literal terms of the stipulation that the letter became effective as an acceptance on the date indicated because the cashier was authorized to receive communications on behalf of the company. It is immaterial that neither he nor his assistant was authorized to “approve” such communications. The continuing offer having been made by the defendant when the policy was issued, acceptance of it was not subject to the “approval” of any agent of defendant whatever his authority might be. For the same reason, it is immaterial that the power “to make or modify any contract on behalf of (defendant)” was confined to certain of its officers.

It is elementary that'acts done by the parties to a bilateral contract in performance of their obligations thereunder are to be distinguished from their acts resulting in formation of the contract. Proof of performance or non-performance of certain acts alleged to be contractual obligations may, in some circumstances, be circumstantial evidence on the question whether or not a contract was ever made or formed. Here, however, the proof clearly and affirmatively shows an offer and an acceptance thereof received by the offeror which bound both parties to perform their respective obligations. Accordingly, it is completely immaterial to the issues in this case which of defendant’s agents, wherever located, had authority to “act upon” communications to the defendant or to make cash settlements, or, in general, to perform the insurance company’s obligations which attached upon receipt of the acceptance. No reason has been suggested and none appears to show why the authority to perform the contract must have been delegated to the same agent authorized to receive acceptance of the offer from which the obligation to perform arises.

The further stipulated facts as to the acts of defendant’s agents in processing the insured’s acceptance, beginning with the preparation of the interoffice memorandum at the branch office and ending with tender of the surrender value of the policies to the insured’s personal representative, describe merely the steps taken by defendant to perform its contractual obligation. In the opinion of this court these facts are relevant in this case, if at all, only as cumulative evidence of the decisive question whether the insured’s acceptance was received by an agent authorized to receive communications on defendant’s behalf.

These conclusions, in the opinion of this court, do not conflict with, and are in fact confirmed by, the decision in Lovett v. Phoenix Mutual Life Ins. Co., 44 F. Supp. 888 (D. C. R. I.), relied upon by plaintiffs as authority for the proposition that the insured was not bound to his election until the processing of his request had been commenced in the defendant’s home office. In the course of that decision the court did remark as follows:

“. . . it would seem that when (the form requesting conversion of the policy) arrived at the home office of the defendant and the agents of the defendant commenced to process (the insured’s) requested change, the matter ‘ripened into a perfect contract.’ ”

The court’s precise meaning, clearly indicating that the processing of the request was but evidence of the insured’s election already communicated, is apparent in the following subsequent language of its opinion:

“In Pequot Mfg. Corporation v. Equitable Life Assur. Soc., 253 N. Y. 116, 170 N. E. 514, the court said:

“ ‘The right granted by the terms of the policies to the insured upon the lapsing of the policies to select one of the three options is in the nature of a continuing binding provision. . . It is self-operating in so far as the defendant is concerned. "When the insured communicated Ms election of the option which he desired to take, that part of the contract was closed. The defendant was not required to do anything. . . Whatever entries the defendant made upon its hooks or upon the policies were simply evidences of the transaction . . . and did not and could not affect the legal rights and obligations of the parties. Those rights and obligations were definitely fixed by the terms of the contracts.’

“It is my opinion that the ruling in the (Pequot Case) is controlling in the instant case. When (the insured) . . . communicated his election of the option . . . to the defendant . . . ‘that part of the contract was closed.’ ”

Similarly, analysis of the decision in the Fidelity Mutual Case, supra, primarily relied on by plaintiffs, readily resolves its apparent conflict with the conclusions reached above. In that case there was not, as here, any direct evidence, by stipulation or otherwise, as to the critical question of the insurance company agent’s authority to receive commumcations for the company. It was therefore necessary for the court to recite and discuss at length the facts which did appear as to the scope of the agent’s authority in order to determine inferentially the limits thereof. From such evidence the court concluded in substance that the agent was not authorized to receive communications on behalf of his principal which is contrary to the stipulated fact here.

As the insured in this case became bound to deliver up his policy and the defendant to pay the cash surrender value thereof upon receipt by its agent of the insured’s letter accepting the policy option, it is unnecessary to decide the additional questions raised by plaintiffs. The judgment of the circuit court of Sanga-mon county finding the issues in defendant’s favor will be affirmed.

Affirmed.


text:
    Elizabeth M. Stewart, Plaintiff-Appellee, v. Lillie Stewart, Conservator of Estate of Lewis C. Stewart, Incompetent, and Lillie Stewart, Individually, Defendants-Appellants.
    Term No. 53-O-10.

      Opinion filed February 2, 1954.
    Rehearing denied February 23, 1954.
    Released for publication February 26, 1954.
    E. W. Eggmann, of East St. Louis, and Turner, Holder & Ackermann, of Belleville, for appellants.
    Louis Beasley, of East St. Louis, for appellee.
   Mr. Presiding Justice Scheineman

delivered the opinion of the court.

The plaintiff, Elizabeth M. Stewart, obtained a divorce from her husband, Lewis 0. Stewart, in 1942. The decree awarded her alimony of $100 per month, and divided their property, ordering the plaintiff to quit-claim certain real estate to the divorced husband, which she did. Thereafter, Mr. Stewart married Lillie Stewart, and they subsequently entered into a contract to sell the real estate acquired from the first marriage, to J. R. Pickard and wife on an installment basis.

Some time later Mr. Stewart was declared an incompetent, was committed to a State Hospital, and Lillie Stewart was appointed conservator of Ms estate by the probate court. During succeeding years, the conservator ignored the provisions of the divorce decree, and used the income and assets of her ward for her own support, and for the purchase of furniture, appliances and equipment wMch, presumably, are now assets of her ward’s estate.

In 1949 the plaintiff filed tMs suit in the same court which had entered the divorce decree, for the purpose of enforcement thereof. The suit was directed particularly toward the unpaid balance on the Pickard contract. Pickard was named defendant, also the conservator, and during the pleading stage, she also became a defendant individually.

Pickard asked and obtained leave to pay the balance of Ms obligation into court, in the sum of $2,349.80. TMs was done. The case then proceeded to hearing and the court found arrears of alimony amounting to $4,800. No contest was made thereon, the defense being confined to the argument that the court had no jurisdiction of the subject matter, that the claim could only be asserted in the probate court. The final decree ordered the clerk to pay the Pickard funds to plaintiff to apply on the arrears of alimony, and defendants took tMs appeal.

It should be added that, in the Pickard contract, the vendors, as well as the vendees, were described as joint tenants. This seems to have suggested to counsel another defense, for, after the entry of the final decree, a motion was made to set aside the decree on the ground that Lillie Stewart was a joint tenant of the property in question. The motion was denied, and the point is included in appellants’ brief.

Appellee answers that no question of joint tenancy is before tMs court. We have examined the record as well as the abstract, and find that no mention was made in defendants’ pleadings of any purported joint tenancy.

There is no deed in evidence which complies with the statute on joint tenancies, Chap. 76, sec. 1, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 70.01]. Moreover, the record contains no exhibit of a deed of conveyance, nor any reference thereto, whereby Lewis C. Stewart purported to convey an interest of any kind to Lillie Stewart, or to anyone else.

In the absence of any pleading or proof of a deed from Lewis C. Stewart, subsequent to his acquisition of title in 1942, this court must hold that no question of joint tenancy is involved on this appeal. Since no other disputed question of fact has been presented, we have only to consider the propositions of law.

Courts have been called upon to enforce the payment of alimony in various ways, sometimes by suits involving third parties. Such proceedings have been under attack on various grounds, even on constitutional provisions. Some of these grounds are presented on this appeal and are here considered. Points not raised by the briefs are deemed waived, and are not herein mentioned.

The failure to pay alimony when the obligor has income or property available which can be used for that purpose, is generally regarded as wilful. The obligation to pay is not removed by the obligor’s subsequent marriage, although the effect may be to deprive a second wife of her current means of support.

In view of the changed conditions appearing in this case, a petition to alter the alimony provisions, if presented, might have been allowed. Nevertheless, the past-due alimony is vested and cannot be taken away. Craig v. Craig, 163 Ill. 176; Banck v. Banck, 322 Ill. App. 369; Walters v. Walters, 341 Ill. App. 561.

The proper forum in which to apply for the enforcement of the divorce decree is the court which entered it. Harding v. Harding, 120 Ill. App. 389;

Kohler v. Kohler, 326 Ill. App. 105; Barclay v. Barclay, 184 Ill. 375.

The Divorce Act specifically authorizes enforcement of divorce decrees in any manner consistent with the rules and practices of the court. Sec. 19, ch. 40, Ill. Rev. St. [Jones Ill. Stats. Ann. 109. 186]. It is fully recognized that the court has power to enforce its decrees, otherwise the court would be rendered impotent. Tegtmeyer v. Tegtmeyer, 292 Ill. App. 434; Cohen v. Cohen, 291 Ill. App. 39; Brevet v. Brevet, 316 Ill. App. 406; Totten v. Totten, 299 Ill. 43; Bobowski v. Bobowski, 242 Ill. 524.

The obligation thus enforced is not contractural, but is a social obligation. “Alimony . . . is not founded on contract, express or implied, but on the natural and legal duty of the husband to support the wife. . . . Alimony cannot ordinarily be enforced by action at law, but only by application to the court which granted it. Welty v. Welty, 195 Ill. 335.

Of course, there are exceptions in special situations; thus, alimony has been recognized as a 7th class claim in a probate court. In re Estate of Bell, 210 Ill. App. 350. It does not follow that the jurisdiction of the circuit court is thereby eliminated, nor is it desirable that such a result ensue. It might be necessary to modify, as well as enforce, a decree, and the jurisdiction conferred by statute should not be subject to cancellation or annulment. “Concurrent jurisdiction is no novelty in our law.” People v. Leonard, 415 Ill. 135.

The proceedings in the instant case were in the nature of a sequestration of property. Such proceedings are frequent and are sometimes referred to as in rem when directed against specific property, real or personal, as distinguished from a general levy on the obligor’s property under an execution obtainable only in an action in personam. Wilson v. Smart, 324 Ill. 276; Mowrey v. Mowrey, 328 Ill. App. 92; Fran-

ceschi v. Franceschi, 326 Ill. App. 494; McGowan v. McGowan, 324 Ill. App. 520; Schneider v. Schneider, 312 Ill. App. 59; Tuttle v. Gunderson, 254 Ill. App. 552; Pennington v. Fourth National Bank, 243 U. S. 269, 61 L. Ed. 713, 37 S. Ct. 282.

The conservator was a necessary party to this suit on the Pickard contract, since the court had to provide for the execution of a deed in compliance with the terms of the contract. Our statute provides for the situation where a person under contract to sell real estate becomes insane. The conservator may be compelled to execute and deliver a deed by order of “any court having chancery jurisdiction, in the county where the land or some part thereof may be situated.” Sec. 2, ch. 29, Ill. Rev. St. [Jones Ill. Stats. Ann. 29.50].

The circuit court had jurisdiction to enforce its alimony decree; and; under the evidence and the equities apparent therefrom, the decree was justified and it is affirmed.

Decree affirmed.

Bardens and Culbertson, JJ., concur.