author:
JUSTICE CROW
      DOVE, P. J.,

text:
    Illinois Bell Telephone Co., Appellant, v. Willard F. Miner, d/b/a Willard Miner Company, and Leslie G. Heyden, d/b/a Woodstock Plastics Company, Appellee.
    Gen. No. 10,932.
    Second District.
    July 23, 1956.
    Released for publication August 8, 1956.

      Fuqua & Fuqua, of Waukegan, and Sidley, Austin, Burgess & Smith., of Chicago, for appellant; Ellis E. Fuqua, of Waukegan, Kenneth F. Burgess, James E. S. Baker, H. Blair White, and George W. McBnrney, all of Chicago, of counsel.
    Johnson & Wiles, of Chicago, for appellees; Walter E. Wiles, and Herman Barrington, both of Chicago, of counsel.
   JUSTICE CROW

delivered the opinion of the court.

The plaintiffs, Illinois Bell Telephone Company, and Armen Nazareth Babagian, doing business as Nazareth Rug Cleaners, on October 6, 1955, filed a verified complaint in the Circuit Court of Lake county seeking an injunction against the defendants, Willard F. Miner, doing business as Willard Miner Company, and Leslie G. Heyden, doing business as the Woodstock Plastics Company, to enjoin them from manufacturing and distributing plastic covers to telephone subscribers to be placed on telephone directories.

The Court, upon motion of the plaintiff company, certain affidavits being also filed contemporaneously with the complaint, issued at the outset a temporary injunction restraining the defendants from further manufacturing or distributing the covers to the telephone company’s subscribers. The defendants thereafter filed motions to dismiss the complaint and to quash the temporary injunction. The Court, after hearing arguments, entered an order dismissing the complaint for failure to state a cause of action for an injunction and for being without equity, and dissolving the temporary injunction, and the telephone company has perfected an appeal from that order. The other plaintiff, Armen Babagian, has not joined in the appeal.

The reasons urged by the defendants in their motions as to why the complaint was defective and the temporary injunction should be dissolved, are:

1. The complaint fails to set forth a cause of action in that the Illinois Bell Telephone Company is not the owner of the directories involved and the company does not exercise absolute domain over them.

2. Paragraph 4 of the complaint sets forth certain rules and regulations of the telephone company which pertain only to the apparatus and equipment used in the actual transmission of telephone service (and not to telephone directories) and, in addition, sets forth an adequate remedy against violators.

3. Paragraph 5 of the complaint sets forth the regulations with reference to directories and there is no reference therein to any use or application of said directories for or to advertising or to covers.

4. The defendants have no contract or other dealings with the plaintiffs and are engaged in a lawful business which the plaintiffs are attempting to injure and have injured and damaged by this proceeding.

5. There is no showing in the complaint of any irreparable damage.

6. Paragraph 4 of the complaint sets forth an adequate remedy without resorting to law or equity if there is any violation (of the company’s rules or regulations or tariff or subscribers’ contracts) by the subscribers of the telephone company.

The first point of the defendants’ motions is that the telephone company is not the owner of the directories involved and does not have exclusive domain over the directories. It is, however, alleged in the first paragraph of the complaint that the plaintiff company is a public utility, furnishing telephone service to subscribers in certain counties of Illinois and elsewhere in Illinois, and is qualified and licensed under the statutes of Illinois and the rules of the Illinois Commerce Commission. Then it is alleged in the third paragraph of the complaint: “In the course of its business, the telephone company furnishes its subscribers with equipment and facilities, including telephone directories, which are placed in the homes and offices of said subscribers, and which under the terms and provisions of the rules of the Illinois Commerce Commission and the contracts between the telephone company and its subscribers, remain the property of the telephone company at all times, as will hereinafter more fully appear.”

Then paragraph four of the complaint sets forth some of the provisions of the company’s tariff on file with the Illinois Commerce Commission and in effect at the times referred to in the complaint, relative to the equipment, instruments, and lines furnished by the telephone company and located on the subscriber’s premises, to the effect that such shall be and remain the property of the company, and, further, that subscribers shall not use any mechanical apparatus or device in connection with the equipment or facilities furnished by the company without consent of the company, or permit attachment of advertising devices without approval of the company, and if any apparatus or device of any kind other than that furnished or approved by the company is attached or connected to the company’s property, the company may remove the apparatus or device, or suspend, or terminate the service.

In paragraph five of the complaint, after referring to another provision of the company’s tariff, in effect at the times referred to in the complaint, it is alleged that the same provides: “Directories regularly furnished to subscribers are the property of the telephone company, are loaned to subscribers only as an aid to the use of the telephone service, and are to he returned to the telephone company upon request or when new directories are issued. The telephone company shall have the right to make a charge for directories issued in replacement of directories lost, destroyed, defaced, or mutilated, while in the possession of the subscriber.”

Reading those paragraphs 1, 3, 4 and 5 of the complaint together, there is a positive averment that the directories are the property of the telephone company. It is stated in California Fireproof Storage Co. v. Brundige, 199 Cal. 185, 248 Pac. 669, that: “A telephone directory is an essential instrumentality in connection with the peculiar service which a telephone company offers for the public benefit and convenience. It is as much so as is the telephone receiver itself, which would be practically useless for the receipt and transmission of messages without the accompaniment of such directories.” A telephone directory is an essential feature of the service rendered by the telephone company: McTighe v. New England Tel. & Tel. Co., 216 F.2d 26 (C.A. 2nd 1954). We think it is reasonably common knowledge that a telephone company customarily simply furnishes, provides, or lends facilities for the use of its subscribers and does not make a sale or lease of the equipment, — such is recognized in Southwestern Bell Tel. Co. v. Dialite Dial Co., 102 F. Supp. 872 (U. S. D. C., W. D., Okla. 1951) — and the defendants suggest no reason and cite no authority as to why a telephone directory furnished for the use of the subscriber is or should be in this respect considered any different from other facilities it so furnishes for the use of its subscribers. The plaintiff refers to two unreported trial court decisions, one in Michigan, Michigan Bell Tel. Co. v. Wharram, Circuit Court, County of Oakland, In Chancery, November 16, 1949, and the other in Virginia, Lee Tel. Co. v. Walker, Corporation Court, Danville, February 27, 1954, copies of the opinions in which appear in the plaintiff’s brief, and which are commented on by the defendants. The Michigan case involved covers for telephone directories and the defendants were enjoined from manufacturing and distributing the same; the Court held the directories were the property of the company, placing them in the hands of subscribers under a regulation similar in this respect to that of the present company referred to in paragraph five of the present complaint did not change the title, such regulation is for the guidance and control of the subscribers as .well as the company, the directories are an essential and indispensable part of the service of the company, and the defendants had no interest by virtue of the subscribers’ possession which was worthy of protection as against the company’s ownership. . .

The complaint then further alleges that the defendant Miner sells advertising space on the plastic covers and distributes the covers to the plaintiff company’s subscribers in various towns in Illinois; that the defendant Heyden manufactures the covers for Miner for such distribution; that the covers bear advertising material, and a few emergency phone numbers; when they distribute the covers the defendants enclose instructions urging the subscribers to affix them to their directories; and all of such is without the company’s consent, approval, or permission. The defendants are alleged to have so sold, manufactured, and delivered such covers in some eleven different northern Illinois cities, villages, or towns in 1955, and to be about to distribute additional covers to subscribers in other unknown communities. It is also alleged that some of the printing on some of the covers is misleading and inaccurate in that some wrong numbers are printed on some of the covers, such as that in the directory for Glenview and Northbrook the plaintiff Babagian’s number in Chicago is erroneously listed as being the number of the Northbrook Police, and this causes confusion, uncertainty, inconvenience, delays and expenses to that plaintiff, to the subscribers in Glenview and Northbrook, and to the telephone company in notifying its subscribers and in removing the covers. The complaint concludes by alleging that the affixing of the covers to the directories is a trespass upon the company’s property, and an unlawful interference with the contracts existing between it and its subscribers and an unlawful inducement by the defendants of the subscribers to breach their contracts; unless the defendants are restrained from making further deliveries thereof and ordered to remove those already distributed, the plaintiffs will be irreparably damaged; and the plaintiffs are without adequate remedy at law.

It has long been the rule, of course, that a motion to strike or dismiss a complaint admits, for the purpose of the motion, all the facts well pleaded, so we must accept those allegations of fact to be true for the present purpose. The telephone company claims that the alleged acts of the defendants are a continuing and repeated trespass upon its property (the directories), an unlawful interference with its contractual relations with its subscribers and an unlawful persuasion, solicitation, or inducement of its subscribers to breach their contracts with it, and unfair competition in advertising, and that the only way to stop the same is by a Court order enjoining the defendants from further proceeding to place these covers on the directories. The defendants claim that it does not appear from the complaint that they are trespassing upon the property of the telephone company because the company does not have the immediate possession of the directories; the company can repossess itself of the directories (or suspend or terminate the service) if the subscriber is violating any of the rules of the company; the complaint does not allege facts bearing upon any alleged unfair competition and does not charge the defendants with unfair competition; the complaint does not allege facts showing a contractual relationship between the company and its subscribers with which the defendants have interfered; and the complaint does not allege facts showing an irreparable injury or that the company has no other adequate remedy available to it.

"We think that the complaint sufficiently alleges that the directories are the property of and belong to the telephone company, are loaned to the subscribers as an aid to the use of telephone service, and are to be returned to the company upon request, and that, hence, the company could at any time resume actual possession thereof, so that while the company necessarily does not have the directories in its actual physical possession when they are in or on the subscriber’s premises, it does have the absolute ownership of and property in them, the constructive possession of them, and the right at any time to resume actual possession. Such constructive possession, under those alleged circumstances, is entirely sufficient to support an action for trespass, or for an injunction to enjoin continuing and repeated trespasses, if the plaintiff’s damages are irreparable, and the remedy at law is inadequate.

In Cannon v. Kinney, 4 Ill. 9 (3 Scam. 8) (1841) the owner of a horse, who had loaned it to someone else, who, in turn, had put it with another party for feeding and safe keeping, was held entitled to recover in trespass against a third person who had taken and converted the horse, and the Court said: “To maintain the action of trespass to personal property, the plaintiff must, at the time the injury is committed, have the actual or constructive possession, and also a general or qualified property therein, which may be either, first, as in the case of the absolute or general owner, having the right to immediate possession; . . . this absolute ownership or general property in the chattel, prima facie, for all civil purposes, draws to it the possession. ... As against a mere stranger, such as the defendant is shown to be in this case, who came into possession tortiously, he can maintain trespass. . . . the constructive possession of an owner is sufficient to entitle him to maintain trespass for taking the property out of the hands of a person to whom it is lent. . . . where the legal possession which is an incident to a general or absolute ownership, is in one who has not the actual keeping of the goods, he may bring this action. . . . the facts in this case abundantly show a sufficient possession on the part of the plaintiff to entitle him to this action against the defendant, a mere wrongdoer and a stranger.”

The same is held in Callagan v. American Trust & Sav. Bank, 196 Ill. App. 102 (1915), where a chattel mortgagee in possession of personal property had been forcibly dispossessed and the defendant had later obtained possession from the dispossessor. We held the plaintiff chattel mortgagee could maintain trespass, and said: “The principal point made by the appellant in urging a reversal of the judgment in this case is that the appellees cannot legally maintain an action of trespass, because, at the time the property in question was seized by the appellant, the appellees did not have actual possession of the property. While possession is necessary as a matter of law, as a basis for maintaining an action of trespass, such possession in case of a legal owner need not be actual but may be constructive. . . . Any unlawful exercise of authority over the goods of another will support a trespass, even though no physical force is exercised. ...”

There are other Illinois eases to this same effect, in principle, including some which are cited by the defendants: Dean v. Comstock, 32 Ill. 173 (1863); Scott v. Bryson, 74 Ill. 420 (1874); Miller v. Kirby, 74 Ill. 242 (1874).

In People’s Tel. & Tel. Co. v. East Tenn. Tel. Co., 103 Fed. 212 (C.C.A. 6th, 1900) a defendant telephone company was enjoined at the instance of the plaintiff telephone company from installing or maintaining connections between its lines and the plaintiff’s lines and property by certain desk telephones, switches, and wires on the subscriber’s premises, the Court holding that the defendant was cooperating in unlawful invasions of the plaintiff’s property rights as the owner of the lines and apparatus installed and operated by it, and that the defendant was a trespasser.

In the other unreported Virginia trial court decision, Lee Telephone Co. v. Walker, supra, referred to by tbe plaintiff, which also involved covers for telephone directories, the Court-held that the directories are personal property of the telephone company, the affixing of the covers was a trespass and burden upon its'property, an injunction against the defendant seller thereof was proper, and the remedy at law was not cohiiprete or adequate.

.OPhe defendants have referred us to no case to the effect that, under such, circumstances as are alleged in the;'complaint hereda! telephone company is not the owner of the .directories, does not have constructive possession thereof when they are in or on its subscriber’s premises, and cannot as against a third party maintain trespass relating ^thereto or an injunction against continuing' and repeated trespasses relating thereto.

(The further basis upon which the complaint is properly founded, assuming the allegations to be true for the present purpose* is that, if true, the defendants have, without ■ justification, repeatedly and continuously persuaded, solicited, or induced the telephone subscribers to breach their contracts with the plaintiff company, and propose to continue to do so in the future, and have interfered in those contractual relationships, to the injury and expense of the plaintiff and the benefit of the defendants, by using this mechanical apparatus or device in connection with equipment or facilities ffirnished by the company, without its consent, or attaching such advertising devices to such equipment or facilities without its approval, or attaching or connecting to the company’s property this apparatus or device it being one of a kind other than that' furnished or approved by the company, and such is a tortious interference with the contractual relationships between the company and its subscribers.

Under the Public Utilities Act the term “rate” includes, among other things^ any schedule or tariff of any rate, toll* or chargé, and any rule, regulation, practice or contract relating thereto, Ch. 111⅔, Ill. Rev. Stats. 1955, par. 10.16; the utility must file with the Illinois Commerce Commission and print and keep open to public inspection schedules showing all rates; it must file with and as a part of such schedule and state separately all rules and regulations that affect the rates charged (par. 33); the schedules must , be plainly printed, mimeographed, or typewritten, a copy posted or kept on file in every station or office of the utility where the public transacts business with it, to he immediately produced for inspection upon demand of any person, and a notice stating such schedules are on file and open to inspection and that an agent will assist any person to determine any rules or regulations must be posted in two public places in each such station or office (par. 34) ;■ no public utility shall undertake to perform any service until the rates and rules and regulations have been so filed and published (par. 35); except as in the act otherwise provided, no public utility shall extend to anyone any form of contract, rule, regulation, facility, or privilege except as are regularly and uniformly extended to all (par. 37); and no public utility shall grant any preference or advantage to anyone or subject anyone to any prejudice or disadvantage (par. 38). ■

The complaint alleging that the plaintiff is an operating Illinois telephone utility, that in the course of its business it furnishes its subscribers directories, and that its filed tariff in effect at the pertinent times contained the provisions, rules and regulations, referred to in paragraphs 4 and 5 thereof as hereinbefore stated, — and it being forbidden by the act to perform any service until its rates, rules, and regulations have been filed and published, — it will be presumed for the present purpose that it filed and published its schedules pursuant to and otherwise complied with the act, so far as presently material: Hite v. Cincinnati, I. & W. R. Co., 284 Ill. 297 (1918). Under the act its schedule or tariff and its rules and regulations constitute parts of its rate. Its rules and regulations are a part of that schedule or tariff. Its forms of contract have to be regular and uniform and as stated in the schedules. Its schedules were open to public inspection by its subscribers, or these defendants, or anyone else either at the Illinois Commerce Commission or the company’s stations or offices. Its schedule or tariff so filed is, in effect, a statement of the terms and conditions upon which it will and does render its service.

The company’s official tariff on file, publicly, with the Illinois Commerce Commission, containing, inter alia, the foregoing provisions here material as a part of the terms and conditions upon which telephone service is rendered, is necessarily a component ánd integral part of its contracts and relationships with its subscribers, expressly or by implication or by operation of law; the subscribers are bound thereby, as is the company; it cannot deviate and its subscribers cannot deviate therefrom; and the defendants, whether they have actual knowledge thereof or not, are, of course, presumed to know the law, and are chargeable with notice thereof: Rager v. Western Union Tel. Co., 313 Ill. App. 589 (1942); Hedley v. Michigan Cent. R. R. Co., 310 Ill. App. 201 (1941); Wernick v. West. Union Tel. Co., 290 Ill. App. 569 (1937); McTighe v. New England Tel. & Tel. Co., 216 F.2d 26 (C.A. 2nd 1954).

Although the complaint in respect to the subscribers’ contracts is not as explicit perhaps as might be desired, it sufficiently appears therefrom that the plaintiff does have contracts between itself and its subscribers. Whether those be express, or implied, oral, or written, or partly oral and partly written, does not appear. But it is not necessarily essential that the complaint specifically allege whether they be express, or implied, oral, or written, or partly both. It is enough if the ultimate fact of the existence of such contracts be alleged and their essential terms material to the case sought to be stated in the complaint be set forth.

In Pure Milk Ass’n v. Kraft Poods Co., 8 Ill.App.2d 102 (1955) the defendant company had, in effect, procured or induced some of the plaintiff association’s members to breach their contracts with the association as to payment to the association by the defendant of amounts due the members for milk sold the defendant, and the plaintiff brought suit to enjoin the defendant from further alleged tortious interference with the contractual relations between the plaintiff and its members. We held that there was such a tortious interference and that an injunction did lie. In the course of the opinion, we said, quoting from Bowen v. Hall, 50 L. J. Q. B. 305: “Merely to persuade a person to break his contract may not be wrongful in law or in fact. But, if the persuasion be used for the indirect purpose of injuring the plaintiff or of benefiting the defendant at the expense of the plaintiff, it is a malicious act, which is in law and in fact a wrong act, and, therefore, a wrongful act and, therefore, an actionable act if injury ensues from it,” and we further said: “Under the authorities, it (the defendant) owed appellant (the plaintiff) the duty not to persuade or solicit its members to breach their contract. Appellee (defendant) violated that duty and is responsible to appellant for the damages occasioned thereby.”

Other Illinois cases to the same effect are: London Guarantee and Acc. Co. v. Horn, 206 Ill. 493 (1904); Meadowmoor Dairies Inc. v. Milk Wagon Drivers’ Union of Chicago No. 753, 371 Ill. 377 (1939).

In Southwestern Bell Tel. Co. v. Dialite Dial Co., supra, the telephone company was seeking to enjoin and the Court did enjoin the dial company from furnishing dialites, metal or plastic discs, an advertising medium, to be placed as dial attachments on the dial handsets of the telephone company. The applicable provisions of the telephone company’s tariff there were approximately the'same as certain material parts of the present telephone company’s alleged tariff referred to in paragraph four of the present complaint. In the opinion the Court said: “. . . their sales of Dialite devices . .' . constitute repeated and continuing inducements to the customers of plaintiff to breach their contracts with the plaintiff. . . . The repeated and continuing interference by defendants with the contractual relationship between the plaintiff and its customers is tortious and should be enjoined. . . .”

A provision in a contract between a telephone company and its subscriber that the subscribers 'shall not attach to the telephone company’s wires any equipment or apparatus not furnished by such company, is a valid regulation, and the subscriber is not justified in installing his own equipment: Beach v. Chicago Tel. Co., 1 Ill. C. C. 158 (Circuit Court 1906); Standard Glass Co. v. Chicago Tel. Co., 2 Ill. C. C. 154 (Superior Court 1907). We see no reason'in principle why the same rule does not apply to the company’s directories. The defendants refer us to no base to the effect that, under such circumstances as are alleged in the present complaint there is no tortious interference by the third party with the contractual relationships between the telephone company and its subscribers.

It is claimed in the second point raised by the defendants that paragraph four of the complaint sets forth certain provisions of the tariff or rules and regulations of the telephone company pertaining only to apparatus and equipment actually used in the transmission of telephone service, and does not relate to directories, and, in addition, that such sets forth an adequate remedy against the subscribers who may be violators, without resort to an injunction. We believe, however, that telephone directories are “equipment” or “facilities” furnished by the company within the meaning of those terms as used in the company’s tariff, as alleged in paragraph four, and that these plastic covers are a “mechanical apparatus or device” or “advertising devices,” or “any . . . apparatus, or device of any kind other than that furnished or approved by the telephone company” within the meaning of such terms as used in that tariff.

By dictionary definition, Webster, New International Dictionary, 2d ed., p. 865, “equipment” means, inter alia, “the articles comprised in an outfit”; and p. 908, “facility” means, inter alia, “a thing that promotes the ease of any action, operation, transaction, or course of conduct.” A telephone directory, readily can be said to be an article comprised in a telephone outfit, and a directory is certainly a thing that promotes the ease of telephone operations. As the Court said in People ex rel. Schlaeger v. Bunge Bros. Coal Co., 392 Ill. 153 (1945); “The word ‘facilities’ is not a technical word but one in common use, and its meaning is to be found in the sense attached to it by approved usage. Standard lexicographers give ‘aid,’ ‘assistance,’ and ‘help’ as synonyms or equivalents of ‘facility.’ . . . In Nekoosa-Edwards Paper Co. v. Minneapolis Ry. Co., 217 Wis. 426, 259 N. W. 618, . . . the Supreme Court of Wisconsin held . . . that the word ‘facility’ is a very inclusive term and was intended to embrace anything which aided or made easier the performance of the duty which the carrier was required to perform.” Also, Webster, supra, p. 1525, “mechanical” means, inter alia, “of, pertaining to or concerned with . . . manual operations”; p. 129, “apparatus” means, inter alia,, “a collection or set of materials, implements, or utensils for a given work”; and p. 713, “device” means, inter alia, “that which is devised, or formed by design ; a contrivance; or invention ... a mechanical or'practical contrivance to serve a special purpose . . . invention; contrivance.” These plastic covers do pertain to or are concerned with a manual operation,— they are to be put on or taken off a directory by hand. They may possibly not be within the dictionary meaning of “apparatus,” as such, but they are a thing which is devised, or formed by design, a contrivance, an invention, or a mechanical or practical contrivance to serve a special purpose, and, hence, are readily within the meaning of “device.” Since they allegedly bear advertising they are, necessarily, “advertising devices.”

Even if the phraseology in the tariff,— “Equipment, instruments and lines on subscriber’s premises, furnished by the telephone company, shall be and remain the property of the telephone company” pertained only to apparatus and equipment actually used in the transmission of telephone service, as the defendants argue, a telephone directory is an essential instrumentality in connection with the peculiar service the company renders and is as much so as is the telephone handset or transmitter or receiver, and is, hence, an integral part of the equipment actually used in the transmission of telephone service. The rest of the equipment, in fact, is practically useless without the directory. A telephone directory would seem to be well within the statutory meaning of “service” as applied to a telephone company, Ch. 111⅔, Ill. Rev. Stats. 1955, par. 10.15.

The defendants say, third, that the provision of the tariff referred to in the 5th paragraph of the complaint contains no reference to any advertising in or on the telephone directories and no reference to covers thereon. That there is no reference therein to advertising in or on the directories is immaterial because, it not being alleged in the complaint that there is any advertising in the telephone directories, the plaintiff is evidently not basing its present complaint thereon. That there is no reference therein to covers for the directories is not significant if that matter is embraced by the other provisions of the tariff alleged in paragraph four, as we think is the case.

Fourth, the defendants say in their motions that they have no contract or other dealings with the plaintiff telephone company and are engaged themselves in a lawful business which the plaintiff is attempting to injure and has injured and damaged by this proceeding. The defendants do not urge this in their brief, however, and it may be considered waived. That they have no contract with the plaintiff would seem to be wholly irrelevant, in any event. They may, nevertheless, in a proper case, be guilty of a tort and be subject to an injunction regardless of their lack of contractual relations with the plaintiff. That their business, as such, may be lawful, — and there is no contention it is not, — does not permit them in the conduct thereof to commit trespasses on the plaintiff’s property or tortiously participate in persuading, soliciting, or inducing repeated breaches by the telephone subscribers of their contracts with the plaintiff to the injury of the plaintiff and the benefit of the defendants.

The defendant’s fifth point in their motions is that there is no showing of irreparable injury. The complaint alleges certain inaccuracies in certain phone numbers listed on some of the plastic covers, confusion and uncertainty to the subscribers, and necessary expense to the company in notifying its subscribers and in removing the covers. The very nature of the case,— alleged continuing and repeated trespasses upon substantial numbers of the plaintiff’s properties, its directories, and alleged continuing and repeated tortious persuasions, solicitations, or inducements of substantial numbers of subscribers to breach their contracts with the plaintiff — makes quite impracticable, if not impossible, the prosecution by the plaintiff of a multiplicity of small suits at law against the subscribers or these defendants, or both, with the attendant inordinate and disproportionate expense thereof. The nature of the case would seem to indicate that the measurement and calculation of technical money damages in a multitude of such separate suits at law would be extremely difficult, if not utterly impossible.

The plaintiff contends as a part of its theory that the printing of these covers and distribution of them to their subscribers is unfair competition in advertising, and it uses considerable space in its brief in attempting to show that it is. The defendants say, however, that there is no such charge in the complaint and no facts alleged therein upon which to base it, and to that extent we agree with the defendants. We are unable to see wherein the present complaint charges unfair competition in advertising as a distinct ground for relief or alleges sufficient facts as a foundation therefor. It may possibly be common knowledge that all the plaintiff’s telephone directories here involved contain advertisements, but nowhere in the present complaint is anything said about that, and we cannot take judicial notice of such supposed facts. The plaintiff’s contention in that respect is simply not properly presented or borne out by the present pleading, and, regardless of the merit or lack of merit therein if properly pleaded, it is unnecessary .that we express any further opinion thereon.

For the reasons stated,, we believe that the complaint states a cause of action and the Court erred in dismissing the same and dissolving the temporary injunction. The order, therefore, is reversed and the cause remanded, with directions to overrule the motions to dismiss the complaint and quash the temporary injunction.

Reversed and remanded.

DOVE, P. J.,

concurs in the conclusion that the order appealed from should be reversed and the cause remanded.

EOVALDI, J., concurs.


source: Caselaw Access Project

author: JUSTICE EOVALDI.

license: Public Domain

text:
    Mildred B. White, Plaintiff-Appellant, v. Oscar Ennenga, Defendant-Appellee.
    Gen. No. 10,951.
    Second District.
    August 2, 1956.
    Released- for publication August 18, 1956.
    Williams, McCarthy & Kinley, for plaintiff-appellant; Maynard & Maynard, for defendant-appellee; James F. Maynard of counsel.
   Opinion by

JUSTICE EOVALDI.

Not to be published in full.


author: PER CURIAM.

text:
    Roselawn Memorial Park, Plaintiff-Appellant, v. Kenneth L. DeWall, Kermit B. DeWall, and Lucille DeWall, Individually and as Partners Doing Business as T. C. DeWall and Sons, Defendants-Appellees. Kenneth L. DeWall, Kermit B. DeWall, and Lucille DeWall, Individually and as Partners Doing Business as T. C. DeWall and Sons, Counter-plaintiffs-Appellees, v. Roselawn Memorial Park, Counterdefendant-Appellant.
    Gen. No. 10,024.
    Third District.
    August 21, 1956.
    Rehearing denied August 21, 1956.
    Released for publication September 6, 1956.

      R. Gr. Heckenkamp, and A. M. Fitzgerald,. both of Springfield, for plaintiff-counterdefendant-appellant.
    Barber & Barber, of Springfield, for defendants, counterplaintiff s-appellees; Alton Gr. Hall, Roger H. Little, and Henry R. Barber, all of Springfield, of counsel.
   As Modified on Denial of Rehearing.

PER CURIAM.

Tbe plaintiff, Roselawn Memorial Park, brings tbis cause to tbis court to review a decree of tbe Circuit Court of Sangamon county wherein on a counterclaim tbe defendants obtained a permanent injunction finding that a certain rule of tbe cemetery was unreasonable, null and void, and enjoined tbe plaintiff-appellant from denying access to tbe cemetery by tbe defendants for tbe purpose of delivering, setting, sealing and lowering burial vaults.

Tbe plaintiff is a private corporation operating a cemetery near Springfield, Illinois and licensed under tbe “Cemetery Care Act,” Ill. Rev. Stat. 1955, Chap. 21, par. 64.1, et seq. On May 15, 1952 it filed its verified complaint for injunctive relief in tbe Circuit Court of Sangamon county against tbe defendants, Kenneth L. DeWall, Kermit B. DeWall and Lucille DeWall, individually and as partners doing business as T. C. DeWall and Sons, engaged in tbe business of selling Wilbert Burial Vaults in tbe Springfield area. It alleged that one of its rules regarding interments provides : “All graves shall be dug by workmen employed in tbe Park and no work of any Irind shall be done in tbe Park except by Park employees.” Tbe defendants had been reminded of this rule before May 1, 1952 and notified that after that date all burial vaults in the cemetery would have to be installed by cemetery workmen; that defendants, nevertheless, installed a vault on May 3, 1952 and indicated that they intended to install another on the date that the complaint was filed. The court issued a temporary injunction without notice and approved plaintiff’s bond on May 15th. On June 6th defendants moved to dissolve the temporary injunction and filed their answer in which they set up that they were lot owners in the cemetery operated by plaintiff, as well as in the business of selling burial vaults. In addition defendants filed-; a. counterclaim praying for a declaratory judgment as to their right to install vaults in the cemetery and to restrain the cemetery from interfering with the installation of vaults by the defendants. On June 16,1952 the temporary injunction granted plaintiff was dissolved because no notice had been given to the defendants. On July 19th, July 21st and July 26th temporary restraining orders were issued by the court at counterplaintiffs’ request permitting the installation of vaults' purchased for specific interments by the counterplaintiffs. A hearing was had August 6, 1952 on the counterplaintiffs’ motion for blanket temporary injunction filed on July 19,1952 and an order was entered granting the motion and such injunction issued on September 7, 1952. On the latter date, by agreement of counsel, the cause was tentatively set for hearing before the court on September 22,1952.

All of these proceedings were had before the Honorable DeWitt S. Crow, except the order of May 15, 1952 providing for the issuance of a temporary injunction as prayed for in the original complaint. On September 18, 1952 a petition for change of venue by the plaintiff was filed on the ground of the prejudice of the Honorable DeWitt S. Crow. The petition and affidavit in support thereof alleged that the prejudice first came to the knowledge of the petitioner on or about September 2, 1952. Notice and proof of service of the petition for change of venue on the defendants and counterplaintiffs was dated September 10,1952 and the notice stated that the petition would be presented on September 20, 1952. The petition for change of venue from the Honorable DeWitt S. Crow was denied and the appellant assigns error on this ruling.

It is to us apparent that after numerous preliminary hearings on the issues presented by the complaint and answer, counterclaim and affidavits, as to the right of the plaintiff and of the defendants and counterplaintiffs to injunctive relief, plaintiff applied for a change of venue from the presiding judge immediately before the case was set for hearing.

In Commissioners of Drain. Dist. No. 1 v. Goembel, 383 Ill. 323, 50 N.E.2d 444, a drainage assessment case, objections to the petition were overruled in December, and in January the cause was set for final hearing on February 10th. On February 2nd defendants filed a petition for change of venue alleging prejudice of the presiding judge. The application was denied, and in affirming this order, the Supreme Court says at page 328: “A petition for a change of venue must be made at the earliest practicable moment. (Ossey v. Retail Clerks’ Union, 326 Ill. 405; McClelland v. McClelland, 176 Ill. 83; Haley v. City of Alton, 152 Ill. 113.) An application made after the hearing started comes too late. (Ossey v. Retail Clerks’ Union, 326 Ill. 405; Richards v. Greene, 78 Ill. 525; Hudson v. Hanson, 75 Ill. 198.) The reason that supports the rule is obvious. It would be highly improper to permit an attorney representing parties to a suit to try out the attitude of the trial judge on a hearing as to part of the questions presented and, if his judgment on such questions was not in harmony with counsel’s view, to then permit counsel to assert that the court was prejudiced and that a change of venue- must be allowed.”

In Russell v. Russell, 333 Ill. App. 68, 77 N.E.2d 328, the court says at page 87: “To repeat what was stated in Comrs. of Drainage Dist. v. Goembel, supra, (p. 328): ‘It would be highly improper to permit an attorney representing parties to a suit to try out the attitude of the trial judge on a hearing as to part of the questions presented and, if his judgment on such questions was not in harmony with counsel’s view, to then permit counsel to assert that the court was prejudiced and that a change of venue must be allowed.’ Under the circumstances presented by the instant record it is our judgment that the hearing upon the motion for a restraining order and the oral motion of defendant for leave to withdraw his counterclaim was a material and important part of the case, and since that part had received the consideration of the chancellor and he had made a ruling thereon it was then too late to file a petition for a change of venue (see Comrs. of Drainage Dist. v. Goembel, supra, p. 329), which was not filed until twenty-seven days after the entry of the restraining order, and fourteen days after counsel for plantiff and defendant had appeared before Judge Schwaba in open court and agreed that an order be entered setting the cause for trial upon the merits on June 26, 1946. We are aware that in the instant case the merits of the petition and the motives of defendant in filing it may not be inquired into by the chancellor, and if in our consideration of the instant question we have referred to and commented upon parts of the record that seem to have a bearing upon his purpose and good faith in filing the petition it must he understood that we have considered these parts solely as they hear upon the question as to whether or not the petition was filed in apt time. We hold that the chancellor, under the record, was warranted in denying the petition for a change of venue.”

In this case there were numerous hearings and all involved substantially the same issue to be considered on the final hearing, that is to say, the right of the parties to injunctive relief. The plaintiff here tried out the attitude of the presiding judge and we believe it was too late for the plaintiff to claim that it was prejudiced. The trial court committed no error in denying the petition for change of venue.

On October 27,1952 the cause was referred to a master in chancery who reported to the court and recommended that plaintiff’s complaint be dismissed and that a permanent injunction be issued in accordance with the prayer of defendant’s counterclaim. The master in chancery made the following, among other, findings:

“6. The plaintiff has a device known as the ‘Led-yard Lowering Device,’ by use of which it is not possible to have a complete view as to whether or not the vault is sealed because it is placed below the surface of the ground. . . .

“8. That by use of the Wilbertway Device, the lower portion of the vault is held suspended and the vault is placed together above the ground so that a visual inspection can be made to determine whether it is sealed.

“10. That the Ledyard Lowering Device is not the most suitable to lower and seal a Wilbert Burial Vault. . . .

“18. That the rules and regulations of Roselawn Memorial Park requiring all work to be done within the cemetery by cemetery employees is unreasonable, null and void as applied to the factual situation herein.”

Objections to the report were filed by the plaintiff, which were overruled. By agreement of parties these objections were allowed to stand as exceptions to the report before the court. The court on exceptions to the master’s report approved the report and made special findings of fact, including the following:

“8. That the Wilbertway Device is placed over and around the grave and the box portion of the vault suspended with the top above ground; at the conclusion of services, the top is placed above the box with the Wilbertway Device and the box raised up against the top, thereby sealing it and where it is visually examined for perfection of fit and freedom of foreign matter; visual inspection above the ground is essential to insure that the vault is air and water tight. . . .

“11. That shortly before May 1, 1952, the plaintiff acquired a device known as the Ledyard Lowering Device, which consists of a metal frame on four pneumatic tires and is operated by lowering the box into the grave and then lowering the lid after the services onto the box; joining of the box and lid takes place beneath the surface, where it is not possible to visually examine the seal for perfection of fit; that the Ledyard Lowering Device is not designed to handle box type vaults, such as the-Wilbert. . . .

“21. That the plaintiff’s interpretation and attempted application of the said rule prohibiting the defendant from delivering and setting vaults is unreasonable, null and void. ...”

The Circuit Court overruled all plaintiff’s exceptions and entered a decree finding that the rule of the Rose-lawn Memorial Park as herein set forth was unreasonable and void and entered a decree restraining the plaintiff from denying the defendants access to the cemetery and from setting, sealing and lowering burial vaults in plaintiff’s cemetery, the rights to be exercised by the defendants and cbunterclaimants with due care to avoid injury or damage to the cemetery and subject to the general reasonable rules and regulations of the plaintiff not in conflict with the decree. In so doing, the trial court in a written opinion relied upon People ex rel. Paxton v. Bloomington Cemetery Ass’n, 353 Ill. 534, 187 N. E. 455, and Rosehill Cemetery Co. v. Lueder, 406 Ill. 458, 94 N.E.2d 342.

Plaintiff, as the owner and operator of a cemetery, has the right to prescribe rules and regulations governing burials. (People ex rel. Paxton v. Bloomington Cemetery Ass’n, 353 Ill. 534, 187 N. E. 455.) Such rules, however, must be reasonable and are subject to judicial scrutiny. (Graves v. City of Bloomington, 67 Ill. App. 493; People ex rel. Paxton v. Bloomington Cemetery Ass’n, supra). The rule here involved is to say the least broad and comprehensive.

The actual issue in this case is a narrow one. It is contended that the rule is unreasonable and void as applied to the installation, the raising and sealing of the vault. The counterplaintiffs have a device known as the “Wilbertway” which is placed over and around the grave and the box portion of the vault suspended with 'the top above ground. At the conclusion of the services the top is'placed above the box with the device and the box is raised up against the top, thereby sealing it and where it can be visually examined for perfection of fit, freedom of foreign matter and proper seal. The plaintiff does not have a “Wilbertway” device, but one known as the “Ledyard”’ lowering device, which consists of a metal frame on four pneumatic tires and is operated by lowering the box into the grave and lowering the lid after the services onto the box, the joining of the box and the lid taking place beneath the surface where it is not possible to visually examine the seal for perfection of fit. The Ledyard lowering device is not designed to handle box type vaults such as the Wilbert.

Regardless of the holdings of courts of other states, we believe that the courts of Illinois have settled the legal question as to the validity of the rule in question.

In Ritchey v. City of Canton, 46 Ill. App. 185, while other questions were involved, this court made the following comment with respect to an ordinance providing that no grave shall be made in the cemetery except by permission and under direction of the City Sexton:

“The city may by ordinance establish such regulations concerning the manner of digging the grave, its depth, etc., and the interment, as are reasonable in their character and necessary for the protection of the public health and welfare, and she or those who make the grave for her must conform to such regulations. Her right, however, to make a grave in her own lot and inter therein the body of her deceased daughter can not, by ordinance, be made dependent upon the permission of the city sexton, nor can he claim by virtue of the ordinance exclusive right to make the grave for her, even for reasonable compensation.”

In People ex rel. Paxton v. Bloomington Cemetery Ass’n, supra, the Attorney General brought quo warranto to test the right of the cemetery under its charter to sell and deal in grave boxes and vaults. Also involved was the validity of a rule of the cemetery which prohibited interment except in grave boxes or vaults purchased from the cemetery. In striking down this rule the court said:

“If defendant has the power to prohibit a burial in its cemetery in a vault or box other than one furnished by it, it can be said with equal force that it has the right to limit the use of caskets and other funereal vestments to such as it saw fit to furnish.....The rule adopted by defendant to prevent the use of grave-boxes or vaults except those furnished by it is an unreasonable abridgment of the rights of lot owners.” Cited in support of the foregoing by the Supreme Court are the cases of Chariton Cemetery Co. v. Chariton Granite Works, 197 Iowa 403,197 N. W. 457, and Scott v. Lakewood Cemetery Ass’n, 167 Minn. 223, 208 N. W. 811. The former involved a regulation prohibiting the installation of foundations for monuments except by cemetery employees, and is a leading case in the country on the validity of rules and regulations similar to the one in the case at bar. The latter case involved a rule of the cemetery, requiring a lot owner to employ only employees of the cemetery to care for and decorate graves. In both instances the rules were held to be unreasonable.

And quite recently, in People ex rel. Monument Co. v. Rosehill Cemetery Co., 3 Ill.2d 592, 122 N.E.2d 283, the Supreme Court held that the principles announced in the Bloomington case, supra, were still controlling in Illinois.

Upon a reconsideration of the case at bar, we have concluded that the foregoing cases control the factual situation presented by this appeal and that the findings and decree of the Circuit Court were correct. Being of this opinion we find it unnecessary to decide the question of laches and waiver.

The decree of the Circuit Court is accordingly affirmed.

Affirmed.

HIBBS, J., took no part in this opinion.


author: PRESIDING JUSTICE LEWE

text:
    S. C. Lurie, Appellant, v. Ida H. Linderman, Appellee.
    Gen. No. 46,869.
    First District, Third Division.
    June 13, 1956.
    Released for publication September 12, 1956.
    Aaron Soble, of Chicago, for appellant.
    Tuohy & Quinn, of Chicago, for appellee.
   PRESIDING JUSTICE LEWE

delivered the opinion of the court.

Plaintiff brought suit on a deficiency judgment in the sum of $2,254.60 entered in a mortgage foreclosure proceeding in the Circuit Court of Cook county on March 9,1936, in favor of Christian Bauer and against Ida H. Linderman, Morris Aronowitz, Hyman Singer and Bessie Singer, the named defendants in the foreclosure proceedings.

April 9,1955, Christian Bauer assigned the judgment to plaintiff. The present suit was instituted April 19, 1955, against only one of the defendants, Ida H. Linderman, a resident of California.

In addition to his complaint at law, plaintiff filed an affidavit of attachment and bond upon which a writ of attachment was issued. The sheriff certified that he levied on all the right, title and interest of defendant Linderman in and to certain real estate located in Cook county, Illinois.

Defendant answered averring that on July 27, 1943, Christian Bauer, the plaintiff in the foreclosure proceedings, for a valuable consideration, executed a covenant not to sue defendant Linderman. The attachment was sustained because of defendant’s nonresidence. On the trial of the cause the court found the issues for defendant and the attachment theretofore sustained was released. Judgment was entered accordingly, and plaintiff appealed.

There is evidence tending to show that defendant Linderman paid Christian Bauer fifty dollars for the covenant. The covenant which appears in the record is under seal and recites that Bauer “. . . for and in consideration of the sum of One ($1.00) Dollar and other good and valuable considerations to me paid by Ida H. Linderman, receipt whereof is hereby acknowledged, do by this instrument, covenant and agree not to sue the said Ida H. Linderman, her heirs, administrators, and assigns, and forever as to the said Ida H. Linderman to refrain from instituting, pressing, or in any way proceeding for the enforcement of payment of the Deficiency Decree entered against the said Ida H. Linderman in the ease of Christian Bauer v. Morris Arañovitz [sic], Hyman Singer, Bessie Singer, and Ida H. Linderman in the Circuit Court of Cook County, Case No. 35 C 13973, and further agree not to institute any proceeding, suit, or action in law or in equity to enforce the payment of the said Deficiency Decree herein above described or any portion thereof as to the said Ida H. Linderman.” It further recites that “it is distinctly understood and mutually agreed that nothing contained in this instrument is intended as a release or the purchase of the piece by any other debtor to said Deficiency Decree.”

Plaintiff’s sole contention is that the covenant not to sue is nudum pactum.

In support of his contention plaintiff places great reliance on Wright v. Federal Wrecking Co., 331 Ill. App. 231. In that case the Wrecking Company paid Wright $350 for signing a document represented to him as a receipt for that sum but purporting to be a complete satisfaction of a judgment Wright had against the Wrecking Company in the sum of $4,728.11. In accordance with the prayer of a petition filed by Wright, the satisfaction of judgment was expunged. Without any reference to the consideration of fraud the court said, at page 237: “. . . in the absence of a statute providing otherwise, a judgment is not discharged by a part payment under a parol agreement that such payment shall be accepted in full satisfaction, or by a part payment and an ordinary written receipt in full, . . .”

In our view, the rule announced in Wright v. Federal Wrecking Co. is inapplicable in the instant case. Here we are dealing with a covenant not to sue, which by its express terms provides that the judgment remains in full force and effect as to the other defendants named in the deficiency judgment. In the early case of Parmelee v. Lawrence, 44 Ill. 405, the court held at page 413, that “. . . where the release of one of several obligors shows upon its face, and in connection with the surrounding circumstances, that it was the intention of the parties not to release the co-obligors, such intention, as in the case of other written contracts, shall be carried out, and to that end the instrument shall be construed as a covenant not to sue.” Later the principle announced in the Parmelee case was fully sustained by our Supreme Court in Clark v. Mallory, 185 Ill. 227; and Dupee v. Blake for Use of Metropolitan Nat. Bank, 148 Ill. 453.

Plaintiff says that the covenant not to sue was not based on a valid consideration. Since the covenant not to sue here in controversy is under seal, the law is well established that the plaintiff cannot challenge its validity on that ground.

In Woodbury v. United States Casualty Co., 284 Ill. 227, the court said, at page 234: “. . . in an action at law a release under seal by a person of his cause of action is a complete bar unless its execution is shown to have been obtained by fraud. Such a release carries with it the presumption that it was executed for a valuable consideration, and no evidence can be introduced for the purpose of showing that there was no consideration for the giving of the instrument.” To the same effect see Whyte v. Rogers, 303 Ill. App. 115.

We think there can be no doubt from a reading of the plain and unequivocal language of the covenant not to sue executed by Christian Bauer in favor of the defendant Ida H. Linderman that it was clearly intended by the covenant that she was not to be su,ed upon the deficiency judgment.

For the reasons stated, the judgment is affirmed.

Judgment affirmed.

FEINBERG and KILEY, JJ., concur.


author: JUDGE FEINBERG

text:
    Commercial Credit Corporation, Appellee, v. Aldo Biagi, Appellant.
    Gen. No. 46,816.
    First District, Third Division.
    June 13, 1956.
    Rehearing denied July 18, 1956.
    Released for publication September 12, 1956.
    Andalman & Andalman, of Chicago, for appellant; Maxwell N. Andalman, and Bernard W. Vinissky, both of Chicago, of counsel.

      McKeown, Trussell & Boland; of Chicago, for appellee; Raymond J. Boland, and Edward P. McKeown, both of Chicago, of counsel.
   JUDGE FEINBERG

delivered the opinion of the court.

Plaintiff confessed judgment upon a note signed by defendant which, together with a conditional sales contract executed by defendant, represented the purchase of an air conditioning unit from the payee, who endorsed the note and assigned the conditional sales contract to plaintiff.

The pleadings, which were filed by defendant to vacate the judgment, set forth the conditional sales contract. It was therein alleged that the contract required the payee of the note to deliver and install the air conditioning unit referred to; that they failed to install the unit, therefore the consideration for the note failed; and that plaintiff had knowledge that the note was given for the purchase and installation of the unit.

The judgment was opened, and defendant allowed to defend, the judgment to stand as security. Plaintiff filed an amended statement of claim, making an additional party, who later was dismissed out of the action. A reply by plaintiff to defendant’s petitions denied that there was failure of performance by the payee of the note and denied that it had knowledge that the consideration for the note had failed when it acquired the note. Thereafter, upon motion of plaintiff, the court allowed plaintiff to withdraw its reply and struck all of the pleadings of defendant, holding that nothing set up in the pleadings constituted a defense to plaintiff’s claim, and that the clause in the conditional sales contract, which reads:

“This contract may be assigned and/or said note may be negotiated without notice to me and when assigned and/or negotiated shall be free from any de fense, counter claim or cross complaint by me, . .. .”

precludes defendant from setting up the defense relied upon.

There is much discussion in the brief as to whether plaintiff is a holder in due course under the Uniform Negotiable Instruments Act, Ill. Rev. Stat. 1955, Ch. 98, § 79.

In view of the conclusion we have reached, we deem it unnecessary to determine whether plaintiff is a bona fide holder under that statute. Even if plaintiff be held not to be a bona fide holder, we think the quoted clause in the contract bars the defense asserted.

The Uniform Sales Act, Ill. Rev. Stat. 1955, Ch. 121½, § 71, provides:

“Variation of implied obligations.] § 71. Where any right, duty or liability would arise under a contract to sell or a sale by implication of law, it may be negatived or varied by express agreement or by the course of dealing between the parties, or by custom, if the custom be such as to bind both parties to the contract or the sale.”

This section permits the quoted clause in the conditional sales contract.

There is no Ulinois case cited, and our search has not disclosed one, that interprets the quoted clause in question. However, in United States v. Troy-Parisian, Inc., 115 F.2d 224, which involved a conditional sales contract with a similar clause, the court held that’ such a clause in the contract bars such a defense to the note. To the same effect are Jones v. Universal C. I. T. Corp., 88 Ga. Appeals 24; National City Bank of New York v. Prospect Syndicate, Inc., 170 Misc. 611, 10 N.Y.S.2d 759; Guaranty Securities Co. v. Equitable Trust Co., 136 Md. 417; Bank of Centerville v. Larson, 47 S. D. 374; Refrigeration Discount Corp. v. Haskew, 194 Ark. 549. We are persuaded by the reasoning in the cases cited that defendant, because of the quoted clause in the conditional sales contract, is barred from asserting the defense relied upon.

The original judgment by confession is affirmed.

Affirmed.

LEWE, P, J. and KILEY, J., concur.


author: JUDGE KILEY

text:
    Walter Lee Barrett, Appellant, v. Chicago Transit Authority, a Municipal Corporation, Appellee.
    Gen. No. 46,773.
    First District, Third Division.
    June 13, 1956.
    Released for publication September 12, 1956.
    Moore, Ming & Leighton, of Chicago, for appellant; George N. Leighton, of counsel.
    Thomas C. Strachan, Jr., Arthur J. Donovan, James A. Mahoney, all of Chicago, for appellee; James E. Hastings, of Chicago, of counsel.
   JUDGE KILEY

delivered the opinion of the court.

This appeal is by plaintiff from an order of April 14, 1955, dismissing the suit on defendant’s motion.

Plaintiff originally sued defendant for damages in 1948 in the Superior Court of Cook county, alleging an injury due to the negligence of the Chicago Surface Lines, defendant’s predecessor. The alleged injury occurred in 1930, when plaintiff was four years old, and the suit was begun when he attained majority. The suit was dismissed for lack of allegation, of statutory notice to defendant. This court reversed and remanded, holding that the notice was unnecessary and stating that, “The gravamen of the action is breach of the contract between the Chicago Transit Authority and the Chicago Surface Lines, with respect to which plaintiff is a third-party beneficiary.” (348 Ill. App. 83, 86.) The contract referred to was that of September 1947, whereby defendant assumed all the lawful liabilities of the Chicago Surface Lines. Plaintiff did not file the mandate of this court within the one year allowed by statute (Chap. 110, Par. 212 (3) Ill. Rev. Stat. 1951) whereupon the trial court dismissed the cause when plaintiff thereafter attempted to reinstate the cause of action. There was no appeal from that order of dismissal.

The instant suit was begun in February 1955, seven and one-half years after plaintiff reached his majority, relying on the third-party beneficiary theory. Defendant moved to dismiss on the grounds that the two-year statute of limitations barred the action and that the prior suit, on the same facts, had been dismissed for failure to file the mandate within the proper time and that the original judgment against plaintiff therefore stands. The trial court sustained this motion and entered judgment for defendant. This is the judgment from which plaintiff appeals.

A vital question of law presented in this court is whether, assuming under the prior opinion of this court that “the gravamen of the action” is contract and not tort, the five-year or. the ten-year contract limitation on contract actions applies?

The 1947 agreement between defendant and Chicago Surface Lines in no way indicates, of itself, that plaintiff was among that class of benefited persons, liability to which defendant assumed. Parol evidence therefore would be needed in order to establish this fact, which cannot be ascertained from the instrument. The contract accordingly is not a written contract, and the five-year statute of limitations applied. (Novosk v. Reznick, 323 Ill. App. 544, 550-551; Orminski v. Hyland Electrical Supply Co., 326 Ill. App. 392, 398; Mullberg v. Johnson, 340 Ill. App. 92.) Plaintiff’s action, being filed more than seven years after it accrued to him is now barred.

We need consider no other point. For the reason given the judgment is affirmed.

Affirmed.

LEWE, P. J. and FEINBEBGf, J., concur.


author: PRESIDING JUSTICE FRIEND

text:
    Eva Juanita Roberts, Appellee, v. John Benjamin Roberts, Appellant.
    Gen. No. 46,792.
    First District, First Division.
    June 21, 1956.
    Released for publication September 12, 1956.

      Bernice Z. Leaner, and R. Eugene Pincham, both of Chicago, for appellant. R. Eugene Pincham, of Chicago, of counsel.
    Prescott, Burroughs, Taylor & Carey, of Chicago, for appellee; Euclid Louis Taylor, Samuel L. Patterson, and Howard T. Savage, all of Chicago, of counsel.
   PRESIDING JUSTICE FRIEND

delivered the opinion of the court.

On June 9, 1954 the plaintiff, Eva Roberts, obtained a decree for divorce from the defendant, John Roberts, in the District Court of Lancaster county, Nebraska, by the terms of which plaintiff was awarded the custody of three minor children, and defendant was ordered to pay $100 per month for their support. The parties had entered into a property settlement, the terms of which were approved by the court and incorporated in the decree. Plaintiff received a piece of property in Lancaster county, Nebraska, certain household goods and personal effects then in her possession. The agreement recited, and the court found, that the defendant had admitted liability on, agreed to pay, and covenanted to hold plaintiff harmless to the extent of, $890 on indebtedness incurred during their marriage, with direction that unless defendant paid' this amount within six months plaintiff should have judgment against him. The decree also provided that unless it was vacated or modified it was to become final within six months without any further order of court, as provided by the law of Nebraska.

Thereafter, on January 18, 1955, plaintiff filed her complaint in chancery in the Superior Court of Cook county to enforce the Nebraska decree; in her complaint she recited the provisions thereof and alleged that defendant had become and was then a resident of the City of Chicago, county of Cook, State of Illinois; that he was gainfully self-employed but had wilfully refused to comply with the terms of the decree and was then in arrears in the sum of $600 for child support, as well as the sum of $890 for which judgment had been entered, making a total arrearage of $1,490. Attached to her complaint was an exemplified copy of the Nebraska decree.

On March 16, 1955 plaintiff filed in the Superior Court her written motion for child support and attorneys’ fees, predicated upon the Nebraska decree, alleging that defendant was served with summons and had entered his appearance by counsel. She realleged the provisions of the Nebraska decree, defendant’s gainful self-employment, and his refusal or failure to pay his arrearages for child support and the $890 judgment. In the order entered on plaintiff’s motion for child support and attorneys’ fees, the Superior Court found that the Nebraska decree was in full force and effect, that “the same is hereby adopted as a decree of the Superior Court of Cook County, Illinois, and shall be enforced by equitable remedies as though originally entered in this State”; that defendant pay plaintiff, as and for child support, the sum of $100 per month; that judgment be entered in favor of plaintiff and against defendant in the sum of $890, and that execution issue therefor; and that defendant pay to plaintiff’s attorney as fees the sum of $150 within thirty, sixty, ninety days, respectively.

Subsequently, on May 2,1955, defendant filed a petition asking leave to withdraw his answer to the complaint filed on January 18, 1955, and to dismiss the complaint for the reason that the decree of divorce upon which the complaint was based and sought to be enforced was invalid for lack of jurisdiction of the court to adopt the decree of a sister state and to enforce it by equitable remedies as though said decree was originally entered in Cook county. He challenged the jurisdiction of the court requiring him to pay $100 per month for child support, as well as attorneys’ fees, and at the same time filed a motion to dismiss plaintiff’s petition for a rule to show cause on like jurisdictional grounds.

Later, on June 7, 1955, the Superior Court ordered a writ of attachment against defendant for contempt of court for his failure to comply with the order theretofore entered by the court directing him to pay child support, attorneys’ fees and other indebtedness. Defendant perfected his appeal from the decree entered. Thereafter the chancellor ordered him to pay plaintiff’s legal fees and suit money on appeal. He appeals from these several orders.

The principal question presented is whether an Hlinois court has the power, once the decree of a sister state has been adopted, to enforce its provisions by equitable means. Defendant takes the position that the court has no such power and relies primarily on Clubb v. Clubb (1949) 402 Ill. 390, and Tailby v. Tailby (1951) 342 Ill. App. 664. In the Clubb case, plaintiff, the wife, was granted the divorce in London, England, in 1929. The decree required defendant to pay alimony during their joint lives or until further order of court. Through subsequent garnishment proceedings plaintiff received the cash surrender value of a policy of insurance upon defendant’s life, which amount was applied upon the alimony. No further sum had been received or credited thereon. While the divorce proceeding was pending and before decree, defendant was sent by his employer from London to Chicago, then to Australia, and ultimately back to Chicago. In 1943 plaintiff filed suit in chancery in the Superior Court of Cook County, based on the English decree, in which she prayed for judgment for the unpaid alimony, with interest, and unpaid attorneys’ fees and costs. In that suit she procured a judgment for $44,764. Execution issued thereon, and was returned no property found and no part satisfied. Thereupon plaintiff filed her petition in the Superior Court for a rule on defendant to show cause why he should not be held in contempt for failure to comply with the provisions of the decree. The chancellor dismissed the petition for want of equity. The Illinois Supreme Court affirmed the order. Defendant contended that the English decree for the payment of money could be sued upon only as a debt and an ordinary judgment obtained as at law; that the law afforded an adequate remedy, that equity had no jurisdiction; and that the Superior Court had no power to enforce either the English decree or its decree based thereon, except as ordinary judgments are enforced; that contempt is not proper under any rule of comity; and that the full-faith-and-credit clause of section 1 of article IV of the United States Constitution does not apply to a judgment or a decree of a foreign country. Plaintiff, on the other hand, maintained that the decree in the Superior Court was for alimony, and that the court had power, under the rule of comity, to enter and to hold defendant in contempt for failure to pay the judgment entered; that contempt for failure to pay is justified by section 42 of the Chancery Act (Ill. Rev. Stat. 1947, ch. 22, par. 42); and that the power to hold defendant in contempt was also justified by the inherent power vested in a court of chancery to compel obedience to its decree. After reviewing numerous cases dealing with the subject, the Supreme Court pointed out that in practically every case cited by plaintiff, where a judgment or decree of a sister state had been enforced, the local court had first established the judgment as its judgment or decree, whereas in the Clubb proceeding plaintiff requested only a judgment based upon arrears in alimony payments but did not ask that the English judgment be established in Cook county as a foreign judgment to be enforced in equity. The court held that section 42 of the Chancery Act does not authorize the enforcement of a decree based upon the judgment of a foreign country but was applicable only to judgments of the states of the union, and also that the rule of comity between nations would justify, but would not require, local courts to enforce a foreign decree for alimony where no local law exists granting power to our chancery courts for that purpose. Having concluded that there was no statute conferring specific authority on courts of equity to enforce decrees of a foreign country, the Supreme Court proceeded to consider whether, under its general powers, a court of equity might assume such jurisdiction, and concluded by holding that in the absence of statutory authority “it would not be just for us through claimed comity or alleged general powers to allow enforcement by our equity courts, through civil contempt, of a decree of a foreign country for the payment of alimony to one of its subjects. In our opinion comity does not require us to go that far.” The Clubb case can be readily distinguished from the case here under consideration since in that case plaintiff had not asked that the English decree be adopted as a decree of the Illinois court, and, further, the Clubb case involved an action for the enforcement of a foreign decree, as differentiated from the decree of a sister state.

In the Tailby case, decided two years after Clubb v. Clubb, a complaint was filed in the Circuit Court of Shelby county, Illinois, by plaintiff, the wife, against defendant, her former husband, to obtain a judgment for the amount of accrued and unpaid alimony and solicitor’s fees alleged to be due her under a New York court decree, and asking that such decree for alimony and solicitor’s fees be established as a foreign judgment and enforced by appropriate equitable remedies. Relying principally upon the Clubb case, the Appellate Court held that, in the absence of any specific statutory authority for courts of equity in this state to enforce through' civil contempt divorce decrees of another state, the trial court properly refused to provide such relief,- and the reviewing court accordingly affirmed the judgment of the chancellor. We do not think the Clubb case is decisive of the question presented in either Tail-by v. Tailby or in the instant proceeding for the distinguishing reasons heretofore indicated. In the Clubb case the Supreme Court did not hold, as the opinion in the Tailby case would indicate, that an Illinois court has no power to adopt and enforce, by equitable means, a divorce decree of a sister state.

As pointed out in the Clubb case, comity does not require an Illinois court to enforce a decree of a foreign country for the payment of alimony to one of its subjects, nor does the full-faith-and-credit clause of the Federal Constitution require an Illinois court to recognize or enforce the decree of a foreign country; but there can be no doubt that it does require the Illinois courts to recognize and enforce the decree of a sister state. Upon the basis of this constitutional provision, the Superior Court of Cook county had authority and jurisdiction to adopt the decree of a sister state as its own, as was done in the instant proceeding, and, once adopted, to enforce it according to Illinois law.

The United States Supreme Court has passed on this question; in Sistare v. Sistare (1909) 218 U. S. 1, it held that although the full-faith-and-credit clause may not extend to mere modes of procedure, a judgment absolute in terms and enforcible in the state where rendered must, under the full-faith-and-credit clause of the. Federal Constitution, be enforced by the courts of another state, even though the modes of procedure to enforce its collection may not be the same in both st£l"fcGS

Rule v. Rule, 313 Ill. App. 108, decided in 1942, is a well-reasoned case and precisely in point. In that proceeding a decree of divorce was entered in Nevada requiring defendant, the husband, to pay alimony in weekly installments, and also support money for the minor children. Subsequently, plaintiff filed a complaint in Knox county, Illinois, where defendant had gone to maintain Ms residence; in her complaint she asked that judgment be entered for the amount of accrued unpaid alimony and for all future monthly payments as well, as they became due, in accordance with the provisions of the Nevada decree, and prayed further that the Nevada decree be established in Illinois as a foreign judgment and enforced by appropriate equitable remedies. The reviewing court’pointed out that the question presented had not previously been passed upon by the Supreme Court or by the Appellate Court in this state, and that the decisions in other jurisdictions were not in harmony. After reviewing numerous decisions on the question, the Appellate Court adopted that rule which, as it said, “best conforms to the principles of equity,” and tends to the furtherance of justice. It held that the Nevada decree should be given full faith and credit, that the provisions thereof for the payment of alimony and support of minor children should be adopted and confirmed as the basis for a decree, the same as if originally entered in Illinois, and enforced by equitable remedies. The basis for the decision in the Buie case was that a decree for alimony represents more than a debt; that it is founded on the obligation of a husband to support Ms wife and cMldren, which is a matter of public concern, whether the cause of action arises in the state where the decree was originally rendered, or in another to which the parties have moved; that the urgency for its effective enforcement is equally as great in one state as in another; and that therefore it should be enforced by the same remedies as are applicable to domestic decrees for alimony.

The earlier case of Fanchier v. Gammill (1927) 148 Miss. 723, 114 So. 813, is discussed and quoted at length in the Buie case. It affords a sound basis for support of the rule that an Illinois court has the power, once the decree of a sister state has been adopted, to enforce its provisions by equitable means, and since, as we have indicated, there appears to be nothing in the Clnbb decision which would require us to hold otherwise, we adopt what appears to us as the sounder reasoning of the Rule and Fanchier opinions.

The remaining question, whether the court was authorized in ordering defendant to pay plaintiff’s attorney’s fees and suit money, was decided adversely to the contentions of defendant in Buehler v. Buehler (Abst.), 318 Ill. App. 640.

For the reasons indicated, the decree and orders of the Superior Court are affirmed.

Decree and orders affirmed.

NIEMEYER and BURKE, JJ., concur.


author: JUDGE BURKE

text:
    Harris Trust and Savings Bank, as Executor Under Last Will and Testament of Paul C. Boomer, Deceased, Plaintiff, and Rani Pursell, Plaintiff-Appellant, v. First National Bank of Chicago, as Trustee, et al., Appellees, and Northwestern University, Defendant-Appellant.
    Gen. No. 46,800.
    First District, First Division.
    June 21, 1956.
    Released for publication September 12, 1956.

      Harold J. Clark of Chicago, for Northwestern University, defendant-appellant; John J. Yowell, of Chicago, for Rani Pursell, plaintiff-appellant.
    C. Lysle Smith, of Chicago, for First National Bank of Chicago, defendant-appellee; John R. Heath, William Bnrry, and George R. Hooper, all of Chicago, for Home for Destitute Crippled Children, defendantappellee.
   JUDGE BURKE

delivered the opinion of the court.

On August 27, 1924, Paul Chamberlain Boomer executed and delivered a written instrument setting up a trust. On September 28, 1924, the three trustees accepted the trust. In Home for Destitute Crippled Children v. Boomer, 308 Ill. App. 170, we affirmed a decree finding that the trust was valid and compelling Boomer to deliver to the trustees the stock certificates which constituted the trust. In 1941 the First National Bank of Chicago became the sole trustee. The trust instrument directed the trustee to pay the net income from the trust fund to the settlor during his life and upon his death, leaving his wife Laura K. Boomer surviving him, to pay out of the net income $5,000 per year to her during her life or until she shall remarry. Then, following spendthrift provisions, it was provided that if Laura Boomer survived the settlor, upon her death or remarriage, the whole principal of the trust estate and all accumulated and undistributed net income thereof should forthwith be distributed and paid by the trustee to The Home for Destitute Crippled Children, and that if at the time provided for the said distribution the Home shall not be in existence or shall have abandoned the operation and maintenance of a home for destitute crippled children, the trustee should pay and distribute the whole principal and accumulated and undistributed net income thereof to Chicago Home for Convalescent Women and Children, and if said home-shall not be in existence or shall have abandoned the operation and maintenance of a home for convalescent women and children, the trustee is directed to distribute the whole principal and all accumulated undistributed net income thereof to such charitable, educational or scientific institutes or institutions then in the City of Chicago as the trustee may select.

The third paragraph of the will of the settlor dated June 10, 1952, bequeaths “during the remainder of the lifetime of my said wife, any income in excess of $5,000 per year from the trust created by .me dated August 27, 1924, to my daughter, Mrs. Eani Pursell.” In the fifth paragraph, after referring to the. provisions of the trust agreement, the will states that “at the date of the making of this will said Home for Destitute Crippled Children has abandoned the operation and maintenance of a home for destitute crippled children, is not operating or maintaining such a home, but is being operated and controlled by another institution for the maintenance of a pay hospital rather than a home, and for persons of all ages, whether destitute or not or whether crippled or not. Said Chicago Home for Convalescent Women and Children is no longer in existence,” and ends by directing his executor to see “that said trust fund shall be distributed to said Students Finance Department of Northwestern University, either by the election of said trustee, or pursuant to this provision of this, my will.” The settlor died on February 4, 1954. His will was admitted to probate and letters testamentary issued to Harris Trust and Savings Bank, executor. Mrs. Rani Pursell is the daughter and only child of the settlor. Laura Boomer is her stepmother.

Rani Pursell, joined by the executor of his will, sued the trustee of the inter vivos trust established in 1924, and the Home for Destitute Crippled Children, hereinafter called the Home, for an adjudication of plaintiff’s right as heir of the settlor and legatee under his will, to the income from the trust in excess of $5,000 per year during the lifetime of her stepmother. Pursuant to a motion by the trustee, the Northwestern University was made a party defendant. It filed an answer admitting the allegations of the complaint and disclaiming any right to the excess income sought by plaintiff. The counterclaim of the University prayed that the court construe the trust agreement so as to find that the gift over of the remainder was invalid as a charitable gift and that the remainder estate reverted to Boomer and passed by his will to the University. The Home-filed a motion to dismiss the complaint on the ground that the plaintiffs had no litigable interest and a motion to dismiss the counterclaim of the University on the same ground and also on the ground that the counterclaim was premature.. The trustee filed an answer and petition for instructions and construction of the trust instrument, making Laura K. Boomer an additional party. She defaulted. The court entered a decree adverse to the contentions of Mrs. Pursell and the University and they prosecute separate appeals.

The plaintiff’s theory is that the trust instrument made no disposition of the excess income which is payable to her under her father’s will. The theory of the University is that the provisions of the trust agreement giving the trustee the power and authority to select an ultimate distributee iu certain circumstances are invalid and that the corpus of the trust has reverted to and vested in the estate of Paul C. Boomer, deceased, and passes after the death or remarriage of Mrs. Boomer to the University as legatee under the will, and that the University has a vested interest in the remainder estate of the trust by the terms of Dr. Boomer’s will; that the case is not premature because the Home, having abandoned the operation and maintenance of a “home” has forever forfeited its right to the trust estate and cannot reinstate itself so as to qualify before the death or remarriage of the life tenant. The theory of the Home, in meeting the case of the plaintiffs, is that the trust agreement plainly manifests the intention of the parties thereto that all income of the trust in excess of $5,000 per year required for payment to Laura Boomer shall be accumulated by the trustee during her lifetime and that accordingly there was no resulting trust of such excess income in favor of Dr. Boomer’s will; that the provisions of his will with respect thereto are wholly nugatory; and that accordingly plaintiffs do not now have and never can have any interest in the subject matter of the complaint. The theory of the Home as to the case presented by the appeal of the University, is that the provisions of Paragraph 6 of the trust agreement giving the trustee power and authority to select a distributee of the corpus of the trust estate in certain circumstances are valid; that accordingly there was no resulting trust of the principal of the trust estate in favor of Dr. Boomer or his executor; that at the time of his death he had no interest whatever in the principal of the trust estate; that the provisions of his will with respect thereto are wholly nugatory; that accordingly the University does not have any interest in the subject matter of the action; and that in any event the time for determining the existence or nonexistence of the circumstances giving the trustee the right to select a distributee is at tbe termination' of the trust on Mrs. Boomer’s death or remarriage and that- the counterclaim was prematurely filed and properly dismissed. The trustee’s theory is that the trust agreement, both by express language and necessary implication, requires it to accumulate the “excess income” for the-benefit of the named charitable beneficiary, and that the provisions of the trust agreement with reference to the selection of the charitable beneficiary, if the designated beneficiary fails to qualify, is a valid one; that since, the time for distribution of the corpus will not arrive until the death or remarriage of the life beneficiary, it is premature to determine whether the designated charitable beneficiary qualifies; and that the allegations with reference to the present circumstances of the Home are therefore immaterial.

Plaintiff maintains that the trust agreement does not contain an express or implied direction to accumulate the excess income. She says that the words “accumulated income” used in the gift of the remainder interest, distinguishing income from principal, as held in the inter vivos trust construction cases and in the will cases cited by her, mean (a) the income “accumulating” in the interval between the life tenant’s death or remarriage and (after the trustee has determined what institution is to receive the principal) the time of final distribution; (b) the words do not imply a direction to accumulate and (e) they do not refer to surplus income during the life of the widow. In determining whether the trust agreement directs accumulation of surplus income the cardinal principle is to ascertain the intention of the settlor. In United States Trust Co. of New York v. Jones, 414 Ill. 265, the court said (at p. 270) that “the object of judicial construction of a written instrument is to ascertain the true intent of the parties and to carry it out if it does not conflict with any rule of law, or good morals, or the public policy of the state.” The entire trust agreement should be examined for tbe purpose of ascertaining the intention of the parties. We are satisfied that the trust agreement disposes of the “excess income” both by-express language and by necessary implication. The trust agreement defines income to mean the “increments, issues, profits, produce, proceeds, revenue, dividends (including stock dividends), interest on and receipts from any and all securities.” The trustee is directed to receive and hold the income, to pay the net income to the settlor during his lifetime; upon the death of the settlor to pay “out of said net income” $5,000 per annum to his widow; and on the death or remarriage of the latter “the whole principal of said trust estate and all accumulated net income thereof” shall forthwith be distributed to the named charitable beneficiaries. The accumulated and undistributed net income refers to net income remaining after the payment of $5,000 per annum to Mrs. Boomer. The agreement shows an awareness of income on the part of the settlor. The term is particularly defined. There are directions to pay out all net income while he lives and after his death directions to pay only a part “out of” the income and finally to distribute the accumulated and undistributed net income together with the corpus upon the termination of the life estate. These provisions constitute an express disposition of the income. The settlor’s awareness of income, coupled with the fact that the very direction out of which the excess arises, is in terms a direction to pay out a portion only, indicates that the settlor did not overlook the fact that there might be an excess of income. He anticipated the existence of such an excess and the final direction to pay the accumulated and undistributed net income along with the corpus was intended to dispose of the excess income. We have read the cases cited by the learned counsel for the respective parties. The views expressed in these opinions must be read in connection with the facts and issues involved. We are of the opinion that the trust agreement directs that all income in excess of $5,000 per annum, required for payment to Laura Boomer, be accumulated during her lifetime or until she remarries, and that as to the income in excess of $5,000 there is no resulting trust or reversion in favor of Boomer’s estate. The parties discuss the effect of a 1937 amendment to the trust agreement. In deciding the issues we have not considered this agreement because it did not go into effect.

The University argues that when the Home abandoned the operation and maintenance of “a home for destitute crippled children,” there was an abandonment, forfeiture and reversion to the settlor of whatever interest the Home had under the trust instrument. We agree with the contention of the Home that under the express language of the trust agreement the question as to whether the interest of the Home shall be divested cannot be determined until the death or remarriage of Laura Boomer. The trust agreement states that if the settlor’s wife shall survive him “then upon her death or remarriage” the trust estate “shall forthwith” be distributed by the trustee to the Home, and that if “at the time provided for said distribution” the Home shall not be in existence or shall have abandoned the operation and maintenance of a home for destitute crippled children, “then and in such event” the trustee shall “then” pay and distribute the trust estate to the Chicago Home for Convalescent Women and Children, and that if the latter “shall not then be in existence” or shall have abandoned the operation and maintenance of a home for convalescent women and children “then” and “in • such event” the trustee shall “then” pay and distribute the trust estate to such charitable, educational or scientific institutes or institutions “then” in the City of Chicago as the trustee may select.

We are of the opinion that the rule announced in Strawn v. Jacksonville Female Academy, 240 Ill. 111, controls the instant case. There the court said (at p. 118):

“As to the homestead property devised by the twelfth clause of the will, it does not appear from the allegations of the bill that any reason exists for asking the aid and direction of a court of equity. No duty with reference to that property is imposed upon the executors until it has ceased to be occupied by the children of the testatrix, or the survivor of them, as a homestead. The court will not anticipate that a controversy will then arise and declare the rights of the parties in the event of such controversy occurring. Courts of equity will never entertain a suit to give a construction to or declare the rights of parties upon a state of facts which has not yet arisen, nor upon a matter which is future, contingent or uncertain.”

See also Chicago Title & Trust Co. v. City of Waukegan, 333 Ill. 577. The allegations of fact in the pleadings in the instant case, admitted by the motions to dismiss, do not foreclose the possibility that the Home may qualify for distribution upon the termination of the estate of Laura Boomer.

In view of the rule announced in the two cases last mentioned it is unnecessary for us at this time to decide whether the gift over of the remainder of the trust contained in Paragraph 6 of the trust agreement “to such charitable educational or scientific institutes or institutions then in said City of Chicago as said trustees may select” creates a valid trust. As it cannot be known whether or not at the time of the death or remarriage of the widow the Home will have qualifications to avail itself of the provisions of the trust agreement, the court should not at this time make any findings or orders on that subject. If at the time for distribution the Home is not then meeting the conditions set forth in the trust agreement, it will be the duty of the trustee to defend the trust estate against a claim made by the Home. If at the time for distribution (the death or remarriage of Laura Boomer) the Home is then in good faith carrying on the required activities, the prior period of abandonment would not be material. It follows that there should be no findings or orders in the decree determining the rights of any interested parties in the event of the failure of the named charitable remaindermen.

For these reasons the decree of the Superior Court of Cook county is reversed and the cause is remanded with directions to enter a decree in accordance with the views expressed.

Decree reversed and cause remanded with directions.

FRIEND, P. J. and NIEMEYER, J., concur.