author: Mr. Presiding Justice Schwartz

text:
    Irl R. Larson, Appellant, v. Selma A. Johnson and Oscar H. Johnson, Appellees.
    Gen. No. 46,052.

      Opinion filed December 15, 1953.
    Released for publication January 5, 1954.
    Johnson & Wiles, of Chicago, for appellant; Walter E. Wiles, of Chicago, of counsel.
    Arthur Abraham, of Chicago, for appellees.
   Mr. Presiding Justice Schwartz

delivered the opinion of the court.

This is an appeal from a decree denying plaintiff specific performance of a contract for the purchase of defendants’ beneficial one-half interest in certain trust property consisting of a 3-story 25-apartment building in the City of Chicago.

It appears that on March 15, 1950, plaintiff entered into a contract for the purchase of the one-half interest in question for $37,500, $2,000 being deposited as earnest money, $8,520 representing defendants’ obligation under a mortgage to be assumed by plaintiff, and the balance to be paid on satisfactory proof of title and a deed. This contract also contained a provision which required prior approval of the sale by one Hanna Osterholm, owner of the other half interest in the property. In order to procure her approval, the contract was delivered to her lawyer who himself evinced an interest in acquiring the property. He did not procure her consent and did not return the contract. It was then revealed to the parties by the trustee of the legal title that it was not necessary to procure Hanna Oster-holm’s consent to the sale of defendants’ interest, and a new agreement was executed on March 22, 1950, which was in all material and legal effects the same as the previous contract, with the exception that it did not contain the requirement making the sale subject to the approval of Hanna Osterholm. Thereupon, the attorney for plaintiff was directed by sellers’ agent to order a title opinion. On April 10, 1950, defendants addressed a letter to plaintiff, couched in the formal and precise terms of a legal document, in which they stated that it had been represented to them by plaintiff that this agreement was an exact copy of the previous one; that upon examination, it was not such, and accordingly by reason of the misrepresentation so made, defendants repudiated the agreement. To the complaint which set forth the contract, recited its repudiation, and prayed for specific performance, defendants filed an answer and cross-complaint. By their answer they set up a single defense, to-wit: that the execution of the agreement was obtained by connivance, fraud, and misrepresentation in the manner before stated. By their cross-complaint they alleged substantially the same facts, setting forth that when it came to their attention that the contract of March 22, 1950, was materially different from the previous agreement, they promptly terminated it. They pray in their cross-bill that the agreement be held to be illegal and fraudulent and that it be rescinded.

Upon these issues this case was referred to a master who heard the evidence and found for the plaintiff on the issue of fraud made by the pleadings. He held, however, that plaintiff could not obtain specific performance because of the indefiniteness of a provision in the contract that defendants should be given a lease of one of the apartments in the building at a monthly rental of $51.75 for a term to be agreed upon. The court approved the master’s report and, therefore, the question presented to us is this: Should the relief asked for by plaintiff be denied, even though the issue of fraud, the only issue made by the pleadings, has been decided in his favor? The argument of defendants is that notwithstanding the fact that this was the only issue in the case, a court of equity will not decree specific performance of this contract because it is indefinite as to the term of the lease. Plaintiff argues that defendants having repudiated the contract on the ground of fraud, they cannot now shift their position or, as it is phrased in the authorities discussing the doctrine, “mend their hold.”

Plaintiff’s position is amply supported by the authorities. Gibson v. Brown, 214 Ill. 330, 341; Miller v. Gordon, 296 Ill. 346, 352; Danberg v. Langman, 318 Ill. 266, 271; Schuyler County v. Missouri Bridge & Iron Co., 256 Ill. 348, 353; Vincent v. McElvain, 304 Ill. 160, 164-5; Ohio & Mississippi Ry. Co. v. McCarthy, 96 U. S. 258, 267. The case last mentioned seems to be the leading authority. The doctrine there stated was as follows:

“Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground, and put his conduct upon another and a different consideration. He is not permitted thus to mend his hold. He is estopped from doing it by a settled principle of law. Gold v. Banks, 8 Wend. (N. Y.) 562; Holbrook v. White, 24 id. 169; Everett v. Saltus, 15 id. 474; Wright v. Reed, 3 Durnf. & E. 554; Duffy v. O’Donovan, 46 N. Y. 223; Winter v. Coit, 7 id. 288.”

Defendants seek to distinguish these cases on the ground that all that was said with respect to this doctrine in the Illinois decisions cited was obiter dicta. Their argument is that in each case the court took up the other defenses raised by the pleadings and decided them adversely to the defendant and only then did it affirm the doctrine above enunciated. When a court has before it various grounds urged for reversal and it decides that a certain number are valid, it does not follow that because the first ground would have been sufficient for reversal, the other grounds do not deserve equal recognition as the basis for the court’s judgment. Whether a legal proposition stated in an opinion is obiter dictum is to be determined from a reading of the entire opinion. If the opinion expressed on a legal question is one casually reached by the court on an issue unrelated to the essence of the controversy or based on hypothetical facts, then it is obiter dictum. If, however, the question involved is one of a number of legal issues presented by the facts of that particular case, the court’s decision on that question is not dictum even though it be the last ground of many decided by the court, all in support of its final conclusion. (Goodhart, 40 Y. L. J. 161, 180.) It is often stated that all

except that which is necessary to the decision of a case is obiter dictum. This is misleading, for nothing hut the bare finding of the court is absolutely necessary to its decision as between the parties. For the purpose of legal precedent, we must look to all the issues presented by the facts of the case and to the legal principles applied by the court in the final determination of those issues. Our Supreme Court has made a distinction between judicial dictum and obiter dictum, meaning that a legal principle deliberately passed upon by a court establishes a precedent. Scovill Mfg. Co. v. Cassidy, 275 Ill. 462, 470. It is in the light of this understanding of what constitutes obiter dicta that we should consider the cases which have been cited in support of the doctrine. Two of these (Vincent v. McElvain, supra, and Miller v. Gordon, supra), are specially in point.

In Vincent v. McElvain, the seller Vincent agreed to sell certain land to McElvain and in due course to furnish an abstract showing good title and to pay taxes. The buyer repudiated on the ground that the abstract did not show a good title. The question involved was whether an order of the probate court, on which title depended, was void for want of jurisdiction in that court. It was held that the order was valid. Appellant on hearing urged three additional reasons— insufficient description of the land, failure to pay taxes, and failure to tender an adequate abstract. The court said there was no merit in any of these objections and then said:

“Furthermore, it is not necessary to give attention to the last three objections to the title in order to reach a correct decision in this case, for the reason that appellant based his refusal to perform the contract on the first ground considered and he thereby waived the other grounds. Gibson v. Brown, 214 Ill. 330; Miller v. Gordon, 296 id. 346.”

This is clearly an explicit statement of a legal principle decisive of the case.

In Miller v. Gordon, supra, appellant seller, when called upon to perform his contract, refused upon the ground that he could sell the property for more money than the buyer had contracted to pay. The contract provided that the purchaser was to execute a lease to the vendor for a store and basement (except part used by tenants of the building) to April 30, 1924, at a monthly rental of $125. The seller presented five defenses, including one similar to that presented by defendants in the instant case; that is, that the provision for a lease was indefinite and incapable of being specifically performed. The court held against the seller on all these points. On the question of the lease, the court held that if it were in any sense indefinite, an offer by the buyer to allow the attorney for the seller to draw the lease and include in it any terms and conditions consistent with the lease described in the contract and his offer in court to permit the chancellor to order any lease he considered equitable, deprived the seller of any right to complain. After having discussed these points made by the seller, the court went on to say that they had given consideration to many matters not necessary to a correct decision of the case, but had done so because of the earnestness with which counsel had brought them to the attention of the court; that the seller, having based his refusal upon the ground that he could sell his property for more money, had waived all other points. They then reaffirmed the principle stated in Gibson v. Brown, supra, where the court had likewise considered other questions because of the earnestness with which they had been urged by counsel, but did not consider them important to a correct decision of the case, as the appellant was hound only to those grounds which he had asserted at the time he was called upon to perform. The same principle is reasserted in Danberg v. Longman, supra.

It is urged by defendants that the principle in question rests upon a doctrine of estoppel and that unless the party urging it has been misled to his detriment, he cannot invoke it. They cite Rand v. Cronkrite, 64 Ill. App. 208, 223-4 (1896). There, plaintiffs were engaged to negotiate a sale of the stock of Band McNally & Co. The agents had not procured a purchaser bound to buy the stock, but an agreement with one who contemplated putting the stock on the market and made his payment therefor contingent upon the success that might follow a public offering. On the trial the plaintiffs argued that at the time the defendants repudiated, one of the parties stated in oral conversation that they were doing so because the time for the mailing of the sale had expired and that therefore they could not object on the ground that no sale such as that authorized by the contract had been made. The court held that the principle in Ohio & Mississippi Ry. Co. v. McCarthy, supra, did not apply; that the defendants were entitled to show that there had been no actual procuring of a purchaser bound to buy the stock and that they were not limited to the defense which it is alleged they stated at the time of the repudiation, to-wit: that the contract had expired by limitation. Aside from the fact that this case was decided in 1896, long before Gibson v. Brown, supra (1905), and other cases heretofore cited in support of the doctrine, the facts are obviously different from the instant case, where defendants by an instrument in writing served notice resting upon a particular ground of merit and, having failed in the meritorious defense, now seek to interpose a technical defense entirely without merit.

Defendants also cite G. Amsinck & Co. v. Springfield Grocer Co., 7 F.2d 855, 859 (C. C. A. 8). Thére the plaintiff sought to recover damages for the defendant’s refusal to receive a shipment of Java white granulated sugar, pursuant to an agreement. The original refusal to receive the sugar was based on a claim that the defendant had no contract with the plaintiff. After the court had expressed the view that there was a contract and that the plaintiff was entitled to recover, the defendant filed a second answer, alleging that it had lately discovered that the sugar shipped was not Java white granulated sugar. It was argued that the defendant could not change its original ground of defense. The court, referring to Railway Co. v. McCarthy, supra, said that the doctrine rested upon estoppel and that inasmuch as the defendant did not know of the defense in question, it could not be held to be es-topped from raising it upon discovery.

Reasoning from the foregoing decisions, defendants argue that the doctrine is not applicable unless the second defense alleged is inconsistent with the first, citing People v. Cohen, 355 Ill. 499, and Quinn v. Olsen, 298 Fed. 704. In People v. Cohen, a petition was filed for a writ of mandamus to compel the State Civil Service Commissioners to reinstate the relator as assistant-chief factory inspector. The court there said (p. 503):

“The statement filed by the relator within five days after his removal admitted that he was discharged, and he demanded a hearing before the commission on the sole ground that the charge was invalid because it was based on political causes. It was not until after two hearings were had upon that issue, and more than two months after his discharge, that he made a motion to be reinstated because the statement of discharge was not signed by the appointing officer. The theory of the motion is utterly inconsistent with the allegations of his original statement. The statement did not question the fact of his discharge by the appointing officer but admitted it. The motion, however, asserts that he was not discharged by the appointing officer. It is a general rule that where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground and assign another and an inconsistent cause for his action. Schuyler County v. Missouri Bridge Co., 256 Ill. 348; Miller v. Gordon, 296 id. 346.”

The case supports plaintiff’s position, unless we give unwarranted and undue emphasis to the word “inconsistent.” There is an inconsistency in repudiating on the ground of fraud and then resorting to a technical defense.

In Quinn v. Olsen, supra, the plaintiff brought suit to recover damages for breach of a contract for the sale of land. Both parties to the contract knew that litigation questioning the plaintiff’s title was impending at the time the contract was signed and that the plaintiff would have to defend this litigation. This he did with due diligence, but after termination of the litigation, which took about two years, he further delayed for a period of four months. The court held that this delay constituted a good defense to the suit. The plaintiff contended, however, that the defendant at the time performance was tendered said that he ought not to be expected to take the land when it had gone down in price after more than two years, and that he was bound to that one statement for repudiation. On this aspect of the case, the court said (pp. 708, 709):

“Defendant was not a lawyer, and he was not called upon to couch his refusal in legal phraseology. What he said was not susceptible of the construction that he refused to accept solely because of the depreciation of the value of the land, and was not inconsistent with the defense of failure to perform within a reasonable time.”

The obvious differences between that case and the instant one are apparent.

We have concluded, from our examination of the cases that so far as the Illinois doctrine is concerned, it is not limited to equitable estoppel. The reviewing courts which announced the principle were familiar with the doctrine of equitable estoppel and there was no occasion for dressing it up with a subtitle. The courts expressed and intended something more with respect to the conduct of one who enters into a solemn written engagement and then repudiates it. Even though no formal duty may be imposed as a rule of law, it is the common practice among business men and contracting parties, out of a sense of ethical obligation or because the repudiating party knows he will appear unfair and arbitrary if he did otherwise, to state a reason for repudiation. It is from this practice that courts developed the principle or doctrine we are here considering. While it is not subjected to the confines of the principle of equitable estoppel, there are limitations upon its application.

These limitations are derived from a comparison of the opinions in those cases where the courts have not applied it and those in which the courts have adopted it. They are definable as follows: If there are meritorious and equitable defenses such as existed in Rand v. Cronkrite, supra, and Amsinck & Co. v. Springfield Grocer Co., supra, and if, by inadvertence or the casual character of the repudiation or the circumstances under which it occurred, it would be inequitable to apply the doctrine, then a court ought to allow the new defense. This is how the doctrine emerges from the cases which have considered it. That this is the common method for the development of our law and represents its unique and constructive character is demonstrated in “Introduction to Legal Reasoning,” Levi (U. of C. Press, 1949).

There is still another reason why we think the defense is not well-founded. Defendants neither by the answer nor the counterclaim nor in any formal way ever raised the defense now interposed. What they say, in substance, is that the complaint states no case at all for specific performance because of the uncertainty of the contract and that this is a question which does not have to be raised at any particular time or in any form. It is true that in equity something more is expected with respect to the definiteness and certainty of contracts than that which may serve as a basis for an action at law. However, that is an equitable rule and is to be applied equitably. In this case the lease in question related to one of twenty-five apartments and was a matter incidental to the main deal. While the provisions with respect to the lease are indefinite, in that a term was not specifically stated but was to be agreed upon, plaintiff offered to give defendants a lease for any term they might name and that, in our opinion, was sufficient to correct the omission. Miller v. Gordon, 296 Ill. 346. Only one case (Westphal v. Buenger, 324 Ill. 77), cited by defendants relevant to this point deserves consideration. There, the agreement provided that the buyer was to take the property subject to certain mortgages, but the terms of the contract with respect to the maturity of notes and trust deed were uncertain. The buyer sought to correct this omission by offering to pay all in cash. The court said that even though it might be assumed that cash is generally more desirable than a mortgage, it is well known that a seller will often prefer a mortgage to cash, and the court could not make a new and different contract in that respect. This related to the substance and main matter of the agreement and is distinguishable from the instant case.

Beading the record here, it becomes clear that defendants for their own reasons, having nothing to do with their present defense of uncertainty, repudiated the contract and that at the time they did so, the only reason they could think of was that given in their carefully prepared letter of April 10, 1950, that is, misrepresentation and fraud. By their answer and cross-complaint this was the only issue presented, and all the evidence was directed toward that issue. Sometime during the proceeding, when it must have appeared to them that they could not sustain this charge of fraud, they shifted their ground to the indefiniteness of the lease provision. We are of the opinion that in equity and good conscience the principle restricting defendants to the defense set forth in their repudiation of the contract should be applied. On that ground they failed, and a decree should be entered against them.

Decree reversed and cause remanded with directions to take such further proceedings as are consistent with the views here expressed.

Decree reversed and cause remanded with directions.

Tuoht and Bobson, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Robson

license: Public Domain

text:
    Josephine M. Linneman, Appellant, v. Francis P. Lin-neman, Appellee.
    Gen. No. 46,022.

      Opinion filed December 15, 1953.
    Released for publication January 5, 1954.
    Robert Friedlander, of Chicago, for appellant.
    Albert E. Jenner, Jr., Philip W. Tone, and William B. Davenport, all of Chicago, for appellee; Johnston, Thompson, Raymond & Mayer, of Chicago, of counsel.
   Mr. Justice Robson

delivered the opinion of the court.

This is an appeal by plaintiff, Josephine M. Linne-man, from an order dismissing her petition for a rule requiring defendant to show cause why he should not be held in contempt for failure to pay alimony. The plaintiff, who had divorced the defendant and remarried in Illinois, subsequently had her second marriage annulled in California. She predicated her petition for renewal of her alimony payments on the ground that the annulment of her second marriage revived defendant’s responsibility to support her.

The first and vital issue to be decided is whether the California decree based on a provision of the California Code annulling the second Illinois marriage of plaintiff is a good and valid decree binding on defendant in Illinois.

It has been said that marriage is a civil contract to which there are three parties: the husband, the wife and the State, and it is regarded as a status based upon public necessity controlled by law for the benefit of society at large. VanKoten v. VanKoten, 323 Ill. 323, 326; In re Estate of Young, 319 Ill. App. 513. The law governing the validity of this contract is the law of the State where it was made. Reifschneider v. Reifschneider, 241 Ill. 92, 96; Lehmann v. Lehmann, 225 Ill. App. 513, 523. Illustrative of this point is the case of Ertel v. Ertel, 313 Ill. App. 326, in which it was held that the statutes and construction thereof by the courts of review of Missouri, the place of the marriage, governed the question of the competency of the husband to enter into a marriage.

Further, the Supreme Court of Colorado, in a well-considered opinion in the case of Payne v. Payne, 121 Colo. 212, enunciates this same principle. The court said on pages 217, 218:

“We appreciate the difference between actions for divorce and annulment . . . Our study persuades us that irrespective of whether the action is brought in the jurisdiction where the marriage ceremony was performed or in that where the parties, or one thereof, is domiciled at the time of the commencement of the annulment action, nevertheless, in such an action . . . the marriage contract is held to be valid or void, according to the statutes in force and effect in the jurisdiction where the same was entered into, and if, according to these statutes, it is found to be valid, it must be, with exception not necessary here to note, so considered in all other jurisdictions, notwithstanding the fact that under the statutes of another jurisdiction the marriage might be voidable or even void.”

The Civil Code of California (sec. 63) provides:

“All marriages contracted without this State, which would be valid by the laws of the country in which the same were contracted, are valid in this State.”

This provision of the Civil Code declares the general rule of conflicts of law governing the validity of the marriage, namely, that a marriage valid where celebrated is valid elsewhere. Restatement of Conflict of Laws, secs. 121, 131, 132. This is also the law in Illinois. Construing this provision the courts of California have refused to annul marriages performed elsewhere which would have been voidable under the California Code. McDonald v. McDonald, 6 Cal.2d 457; Vaughn v. Vaughn, 62 Cal.App.2d 260.

In our case the record reveals that the plaintiff and the defendant, Francis P. Linneman, were divorced by a decree of the superior court of Cook county on July 2, 1947. By the terms of the decree the plaintiff was given custody of the minor son of the parties and provision was made for his support by defendant. The decree also provided for alimony payments to be made monthly to the plaintiff “until her death or remarriage, whichever event shall first occur.”

On June 10, 1950, plaintiff was married to John Foster Corlett in Glencoe, Illinois. She had been and was then a resident of this State. Plaintiff and Corlett went on a honeymoon for a week and then returned to her home in Glencoe where they stayed for a week. On June 24, 1950, they left for San Francisco, California, where they made their residence.

Upon plaintiff’s marriage to Corlett, defendant ceased making alimony payments to her. There was no protest from plaintiff. Plaintiff and her son and Cor-lett lived together in San Francisco from June until about the end of October or the first part of November in 1950. After the separation, plaintiff and her son continued to live in San Francisco. In July of 1951 plaintiff filed a complaint for annulment of her marriage with Corlett in the superior court in San Francisco on the ground of impotency pursuant to the following provision of the California Code, sec. 82:

“A marriage may be annulled for any of the following causes existing at the time of the marriage. . . .

“6. That either party was at the time of the marriage physically incapable of entering into the marriage state, and such incapacity continues and appears to be incurable.”

Corlett’s answer to the complaint was a general denial. The decree of annulment, which was entered July 27,1951, was based on the perfunctory testimony of just the plaintiff. She was not cross-examined by Corlett’s attorney who was present. Her statements as to the impotency of Corlett were not substantiated by competent medical testimony, which in our opinion would be required under the Illinois practice to prove impotency. The decree provided among other things : “. . . that at the time of the performance of said marriage ceremony, the defendant was physically incapable of entering into the marriage state or of consummating the said marriage by reason of incurable physical defects in that his parts of generation are frigid and impotent and such frigidity and impotence are wholly incurable by art or skill and that by reason of the law and findings aforesaid, the plaintiff is entitled to a judgment and decree declaring said marriage wholly null and void from the beginning.

“Now, therefore, it is hereby ordered, adjudged and decreed that the said marriage between the plaintiff and the defendant be, and the same is, hereby declared to be wholly null and void from the beginning and that said parties are, and each of them is, hereby freed from the obligations thereof.”

After the entry of the decree of annulment, while plaintiff was still in California, she made a demand on defendant to resume his alimony payments. Demand was again made by plaintiff on defendant in August of 1951 when she returned to live in Glencoe, Illinois. Defendant refused to pay.

On these facts alone, based on the decisions heretofore discussed, we are of the opinion that unless the California decree of annulment was granted on grounds that were recognized in Illinois, where plaintiff had been a resident and where the marriage was performed, it would not be binding on the defendant.

There are in this case additional factors that weigh the scales of justice to a much greater degree in support of this conclusion. The pleadings show that the decree for annulment was based on the provision of the California Code (sec. 82) which provides that impotency is a ground for annulment. No question was raised as to whether the law of Illinois or California should govern pursuant to sec. 63 of the California Code. Further, the California Civil Code (sec. 86) under which the annulment was granted provides:

“A judgment of nullity of marriage rendered is conclusive only as against the parties to the action and those claiming under them.”

Under this provision in the case of Price v. Price, 24 Cal.App.2d 462, it was held in a similar situation as is here involved that a first husband could attack a decree purporting to annul his former wife’s remarriage. To the same effect is In re Gosnell’s Estate, 63 Cal. App.2d 38.

Defendant in the instant case was not a party to the complaint for annulment. He could attack the decree in California, contending that the law of Illinois where the marriage was performed should have governed in the annulment proceeding and not the law of California. (McDonald v. McDonald, 6 Cal.2d 457; In re Gosnell’s Estate, 63 Cal.App.2d 38.) It then logically follows that any proceeding instituted upon this decree in Illinois against defendant would be subject to the same defenses as it would be in California.

Is impotency a ground for annulment of a marriage in Illinois? In this State there are no statutory provisions for annulment of marriage. An examination of the various authorities (Rhodes, Annulment of Marriage 130-4 (1945); Vernier, 1 American Family Laws, sec. 50, p. 243; Arrington, Jurisdictional Aspects of Divorce, Annulment and Separate Maintenance, U. of Ill. L. Forum (1949) 547, 577, n. 135) list fraud, mistake, duress, mental incapacity, lack of parental consent as to marriage of minors, as grounds for annulment in Illinois. An examination of Illinois cases shows decrees of annulment granted for lack of mental capacity, Pyott v. Pyott, 191 Ill. 280; bigamy, Hunt v. Hunt, 252 Ill. App. 490, Jardine v. Jardine, 291 Ill. App. 152; perjured procurement of license, Lyndon v. Lyndon, 69 Ill. 43; and incest, Whelan v. Whelan, 346 Ill. App. 445.

There is no reported case where a decree of annulment was granted on the ground of impotency. There is, however, strong language to the contrary in the dictum of the case of Reighley v. Continental Illinois National Bank, 390 Ill. 242. The court in deciding the issues of the case states on page 248:

“The marriage was annulled in the Berlin court on the ground of impotency, which in Illinois is a ground for divorce and not annulment.”

And again on page 252:

“It is undisputed that the facts justified a proceeding which would be classified as a divorce under the laws of Illinois. To say the marriage never existed is merely fiction, as the parties sustained a relation for approximately a year that in this State would be the status of marriage.”

These statements are very persuasive.

Plaintiff states that in the case of People ex rel. Byrnes v. Retirement Board, 272 Ill. App. 59, the decree of annulment under which the plaintiff sought to be restored to the pension roll was based on impotency. We do not consider this a precedent establishing impotency as ground for annulment. No attempt was made to challenge the validity of the decree in that case nor was it apparent that it was contested before the court in which it was granted.

It is the general rule that in the absence of a statutory provision making impotency ground for annulment an action based on it will not prevail. Anonymous, 24 N. J. Eq. 19 (1873); Leakim v. Leakim, 3 Ont. W. N. 994, 21 Ont. W. B. 855, 2 D. L. R. 278 (1912); T-v. B-, 15 Ont. L. R. 224, 10 Ont. W. R. 1030 (1907); see 3, Nelson, Divorce and Annulment, sec. 31.26 (2d ed. 1945).

While impotency or physical inability to consummate a marriage has been a ground for divorce in Illinois since 1827 (Ill. Rev. Stat. 1827, p. 181; Ill. Rev. Stat. 1951, chap. 40, sec.. 1 [Jones Ill. Stats. Ann. 109.169]), it has never been held to be a ground for annulment nor has any statute so provided. We, therefore, hold that impotency is not ground for annulment in Illinois. It follows that the decree of the California court granting plaintiff an annulment from her second husband on this ground is of no force or effect in this State and is not binding on the defendant.

Plaintiff cites Sutton v. Leib, 342 U. S. 402, as the principal case in support of her contention that the California decree should be recognized in Illinois. This was an action based upon a divorce decree entered in Illinois, which provided for monthly installments of alimony until plaintiff remarried. After the decree plaintiff entered into a marriage in Nevada which was subsequently annulled in New York on the ground of bigamy. She filed a petition against the defendant to collect monthly installments of alimony for the period from the Nevada remarriage to her third presumably valid marriage in New York to a third man. The defendant pleaded that the Illinois alimony obligation was ended by the Nevada remarriage of plaintiff. Plaintiff contended that the New York annulment decree holding her Nevada marriage was void, obliterates the existence of this marriage and defendant is liable for alimony. Plaintiff’s New York annulment was based on a decree of separate maintenance obtained by her second husband’s wife, holding invalid a Nevada divorce that he had obtained just prior to his marriage to plaintiff. In both New York and Nevada bigamous marriages are void. The Supreme Court of the United States held that the New York decree of annulment was entitled to full faith and credit in Illinois.

An examination of the facts in the case before us discloses that there are many points of difference between it and Sutton v. Leib. Here plaintiff was a resident of Illinois. The marriage was performed in Hlinois and subsequently plaintiff moved to California where the marriage was annulled. None of the distinguishing features of the California Code (secs. 63, 86) heretofore discussed were in effect in New York. In Sutton v. Leib, the bigamous marriage was void both in Nevada where the marriage was performed and in New York which annulled the marriage. We have decided that impotency, which is a ground for annulment in California, is not a ground for annulment in Illinois where the marriage involved was performed. We conclude that the full faith and credit clause of the Federal Constitution as applied in Sutton v. Leib is not applicable in the instant case.

The judgment of the trial court is affirmed.

Judgment affirmed.

Schwartz, P. J., concurs.

Tuohy, J., specially concurring:

I agree with the conclusion reached but not with all that is said in the opinion.


text:
    Anna Gryziecki, Appellee, v. Frejlach’s Ice Cream Company, Appellant, and Albert J. Horan, Bailiff of the Municipal Court of City of Chicago, Matthew S. Gryziecki, Individually and as Trustee Under Trust Agreement Dated November 16, 1939, and Leona Gryziecki, his Wife, Defendants.
    Gen. No. 46,194.

      Opinion filed December 15, 1953.
    Released for publication January 5, 1954.
    Fred B. Hanson, of Chicago, for appellant; Thomas E. Crowley, and William E. Corrigan, both of Chicago, of counsel.
    John H. Galgano, and Patrick A. Barton, both of Chicago, for appellee.
   Mr. Justice Robson

delivered the opinion of the court.

Anna Gryzieeki, plaintiff, filed her complaint in chancery to remove as a cloud on the title to certain real estate in Cook county, Illinois, a judgment obtained in the municipal court of Chicago by defendant, Frejlach’s Ice Cream Co., a corporation, hereinafter referred to as Ice Cream Company, against defendants, Matthew S. Gryzieeki and Leona Gryzieeki, his wife, who are the son and daughter-in-law of plaintiff.

The judgment was entered on October 17, 1952, and on January 16,1953, Albert J. Horan, the bailiff of the municipal court of Chicago, under an execution issued pursuant to the judgment, was ordered to levy upon the right, title and interest of Matthew S. Gryzieeki and Leona Gryzieeki in and to the real estate involved in this proceeding. Plaintiff and Matthew S. Gryzieeki appear of record as the owners of the real estate in question.

In her complaint plaintiff alleges that she was at all times and now is the owner in fee and in possession of the real estate; that on or about January 26, 1939, she and her husband conveyed the premises to a third party; that on or about November 16, 1939, the third party reconveyed the premises to plaintiff and her son, not as tenants in common, but as joint tenants; that on the same date she and her son entered into a trust agreement, which was not recorded, under the terms of which plaintiff and her son were to hold title to the real estate for her benefit; that in the event of her death title was to vest in the son; that plaintiff was to have full control of the premises during her lifetime; that upon the direction of plaintiff the trust could be terminated at any time before her death and that the son was to join in any conveyance during her lifetime upon her written demand to do so.

Plaintiff prays in the complaint that the lien of the judgment of the Ice Cream Company be declared illegal and void; that it be vacated and set aside as a cloud on the title; that the certificate of levy by the bailiff of the municipal court be declared illegal and void.

Pursuant to the complaint, plaintiff filed a verified petition for a temporary restraining order asking that the Ice Cream Company and the bailiff of the municipal court be restrained from proceeding to advertise and sell the premises involved. Notice of the petition was served upon the Ice Cream Company and the bailiff of the municipal court. Defendant Ice Cream Company filed a motion to dismiss the complaint and to dismiss the petition for temporary restraining order. The grounds for the motion in each instance were the same. The Ice Cream Company alleged that it appeared from the face of the petition and the complaint that Matthew S. Gryzieeki was the record holder as a joint tenant in the premises; that the written trust agreement under which Matthew S. G-ryziecki held title for plaintiff was not filed of record as required by chapter 30, par. 29, Ill. Rev. Stat. 1953 [Jones Ill. Stats. Ann. 29.31] of the Conveyance Act of this State and was void as to the Ice Cream Company, a creditor without notice.

The trial court denied the motion to dismiss the petition for temporary restraining order and to dismiss the complaint and granted the temporary restraining order prayed for by plaintiff. It directed the Ice Cream Company to answer the complaint. This appeal is taken from the temporary restraining order pursuant to provisions of section 78 of the Civil Practice Act [Ill. Rev. Stats. 1953, ch. 110, § 202; Jones Ill. Stats. Ann. 104.078].

The Ice Cream Company contends that the trial court erred in denying its motion to dismiss the complaint and the petition for temporary restraining order because the unrecorded written trust agreement is void as to it, a creditor without notice. It is the well-settled law of this State that the trial court has the discretionary power to issue a temporary injunction where it appears necessary to maintain the status quo and preserve the equitable rights of the parties pending disposition of the suit. Eger v. Illinois Protestant Children’s Home, Inc., 334 Ill. App. 81; Baldassano v. Accettura, 336 Ill. App. 445.

The Ice Cream Company does not question the fact that the plaintiff, one of the joint tenants, was in possession of the property, which was an apartment building. It is also agreed by the parties that Matthew S. Gryziecki, the son of the plaintiff, resided in one of the other apartments. The lee Cream Company contends that the failure to allege exclusive possession by the plaintiff makes the complaint faulty as to the Ice Cream Company and, therefore, the complaint and the petition for temporary restraining order should have been dismissed. The filing of a motion to strike by the Ice Cream Company admitted all facts well-pleaded in the complaint. Baldassano v. Accettura, 336 Ill. App. 445.

It is the rule in Illinois that possession of real property by a co-tenant constitutes notice to the creditors of the other co-tenant of every interest, legal and equitable, that the co-tenant has in the property. Farmers’ National Bank of Bushnell v. Sperling, 113 Ill. 273; VanGundy v. Tandy, 272 Ill. 319; Boyer v. Chandler, 160 Ill. 394; Bryant v. Lakeside Galleries, Inc., 402 Ill. 466.

In all cases except Boyer v. Chandler the court after a trial found that the co-tenant was in exclusive possession. It is a question of fact for the trial court to determine on a trial of the issues as to whether or not the plaintiff was in the exclusive possession of the real estate so as to constitute notice to all creditors and third parties and make section 30 of the Conveyance Act inapplicable. We conclude that the action of the trial court in allowing the temporary injunction to maintain the status quo was not an abuse, of its discretion. The order of the trial court is affirmed.

Order affirmed.

Schwabtz, P. J. and Tuohy, J., concur.


author: Mr. Justice Tuohy

text:
    Ruth Pitrowski, Administrator of Estate of Edward Pitrowski, Deceased, Appellee, v. The New York, Chicago & St. Louis Railroad Company, Appellant.
    Gen. No. 46,007.

      Opinion filed December 15, 1953.
    Rehearing denied January 5, 1954.
    Released for publication January 5, 1954.
    Winston, Strawn, Black & Towner, of Chicago, for appellant; George B. Christensen, Douglas C. Mont, and Edward J. Wendrow, all of Chicago, of counsel.
    Marion J. Hannigan, and Edward G. Bicek, both of Chicago, for appellee.
   Mr. Justice Tuohy

delivered the opinion of the court.

Plaintiff, Ruth Pitrowski, administrator of the estate of Edward Pitrowski, deceased, brought suit against The New York, Chicago & St. Louis Railroad Co., a corporation, under the Federal Employers’ Liability Act (45 U. S. C. Secs. 51-59) to recover damages for the death of her husband, Edward Pitrowski. Edward Pitrowski at the time of his death was 42 years of age, was survived by his 31-year-old widow, and two children, aged 11 and 9 respectively. In 1950 his gross earnings amounted to $5,506.04. Verdict was returned in the sum of $150,000 and plaintiff, faced with the alternative of a new trial, remitted $50,000. From the $100,000 judgment then entered defendant appeals.

Defendant introduced no evidence in the case (other than a stipulation with which we are not here concerned), and stands upon its motion for a directed verdict.

Four acts of negligence charged in the complaint are before us: (1) that the defendant caused or allowed the freight car upon which plaintiff’s intestate was riding as a switchman to become derailed; (2) that it moved the car at a dangerous and excessive rate of speed; (3) that it caused, permitted or allowed obstructions to be on the track; (4) that it failed to furnish plaintiff’s intestate with a reasonably safe place to work. Defendant maintains that there was no evidence to support any of the allegations of negligence, and in order to determine the issue thus raised a review of the facts is necessitated.

Plaintiff’s intestate, a switchman employed by defendant, was killed on October 15, 1951 while engaged in placing two box cars on an industry sidetrack located on property of the Bell Fibre Products Corporation in Chicago, Illinois. He was a member of a switching crew consisting of himself, the head brakeman, fireman, engineer and yard conductor. The working hours of the crew were between 12:00 midnight and 8:00 a. m., and the accident happened sometime around 3:30 a. m. Defendant railroad’s main track runs approximately in a north and south direction at the general vicinity of the place of the accident. A switch track branches off of defendant’s westbound main track and continues in a northerly direction from a switch point which is termed the “entrance switch” in the testimony. On the Bell Fibre property, which is to the east of the defendant’s tracks, the switch track branches into two tracks, one of which curves to the east while the one involved proceeds in a northerly direction parallel to the west wall of the plant. When the crew came to the entrance switch the caboose was cut off and left standing on the main line attended by the brakeman. Decedent threw the entrance switch, while the yard conductor, Fietze, walked to the plant switch and lined it for the track parallel to the building. It was a dark morning and there were no lights about these switch tracks. There were two cars on the movement with an engine pushing them through a space referred to as a “tunnel,” made by the sides and overhang of the adjoining building. About 15 feet north of the north end of this tunnel the lead car became derailed. Plaintiff’s intestate was riding at the head of this car and was controlling the movement. It was proceeding about 3 or 4 miles an hour at the time of the accident. Fietze was standing some distance to the south for the purpose of passing signals between decedent and the engineer, and, because of a slight curve beyond the switch, he stepped some 10 feet to the east in order to be able to give the signal. As Fietze was watching the cars his attention was attracted by a shadow “going against the wall.” He yelled for the engineer to stop. The engineer did so, moving about 3 or 4 feet after he heard the shout. The front wheels of the lead car had become derailed and thrown against the side of the concrete wall adjacent to the track, and when Fietze walked to the head of the movement he saw decedent’s dead body crushed between the lead car and the wall. Between the tracks were the broken remnants of a “dolly” which had been used for 2 or 3 years before the accident by Bell Fibre Products Corporation for the movement of tools and material about its plant. This dolly was about 7 or 8 feet in length and was constructed of metal angle irons. It operated by means of flanged wheels on steel rails within the plant. It was made in the machine shop of the Bell plant. It extended 10 or 12 inches above the track level and at the time of the accident had no lights or any warning devices about it.

Before considering the particular charges of negligence charged in the complaint and argued by plaintiff to have been established, we shall have in mind certain basic legal principles governing this type of case.

The Federal Employers’ Liability Act (Sec. 51) provides that a railroad carrier when engaged in interstate commerce shall be liable in damages to any employee for “injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency,' due to its negligence, in its cars, engines, appliances, machinery, track, roadbed . . . .” It is to be observed that negligence is the gist of the employee’s right of action against the employer under the provisions of this Act. The Act does not make a railroad company an absolute insurer of the safety of the employee. Wilkerson v. McCarthy, 336 U. S. 53.

We now come to a consideration of the first allegation of negligence, namely, that defendant “caused, permitted or allowed the car to become derailed.”

The accident here was caused by the fact that this back-up switching movement struck an unseen and unexpected obstacle which was negligently permitted by someone to remain upon the industry track in such a position as to constitute a menace to safety, particularly during the hours of darkness. That the railroad company did not place the dolly upon the tracks is admitted. That it was not aware of the fact that the dolly was on the track is undisputed. The only remaining question under which recovery could be had under this allegation of the complaint is whether in the exercise of ordinary care the railroad company should have discovered the obstacle prior to the accident. This proposition also appears in a subsequent allegation and we shall discuss it in that connection.

The next charge is that the defendant moved the car at a dangerous and excessive rate of speed. The only evidence in the case upon the question of speed is that the movement was proceeding “slowly” or at a speed of 3 or 4 miles per hour. Obviously this is not per se an excessive rate of speed, and only becomes such if the railroad company knew or is charged with knowledge that a dangerous obstruction which would in all probability derail the movement was on the track in front of the moving car. If the railroad company had knowledge or is charged with knowledge of this fact (to be discussed later), then any motion at all on the part of its train would have been negligence. We must conclude, therefore, under all the testimony in this case, that the speed was not per se the proximate cause of this accident.

The third charge of negligence is that the railroad company caused, permitted or allowed obstructions to be on the track, and the fourth charge is that defendant failed to furnish plaintiff’s intestate with a reasonably safe place to work. Inasmuch as these two charges of negligence are tied together and constitute in our opinion the basis upon which negligence, if any, must rest, we shall treat them as a single point.

The issue of negligence thus resolves into a single question: Should the railroad company in the exercise of reasonable care have known that the dangerous obstacle was on the track before and at the time of the collision?

Conductor-switchman Fietze was the only member of the railroad company crew who testified, and he said that he had never seen the dolly before the night of the accident. The track foreman, Baker, whose duties consisted of inspection and maintenance of the tracks, said that he had seen the dolly being used on the track in the daytime before the accident, that he never saw it on the track when it was not being used, that “when it wasn’t being used I saw it turned off near the track back far enough to clear the track and the walkway.” There was no proof that any employee of the railroad company had ever seen the dolly resting in a place where it would constitute a threat to the safety of defendant’s employee. Neither is there any evidence as to when the dolly was placed on the track, who placed it there, or how long it remained there before the accident.

The question is raised as to whether the obstacle should have been discovered on the night in question or by an earlier inspection. The evidence shows that the only employee of the company who was in a position to have seen the obstacle immediately before and at the moment of the impact was plaintiff’s intestate, who was riding the front car as it moved down the track, and who was in charge of the movement. No contention is made that there was any contributory negligence in the failure of this employee to discern this obstruction on the track.

Plaintiff argues, however, that a proper earlier inspection by a section foreman whose duties required him to patrol that stretch of the tracks would have disclosed the dangerous condition. Plaintiff introduced in evidence certain rules of the defendant relating to track foremen, to the effect that they “will be held responsible for the proper and economical maintenance of the track roadway .... They must make frequent inspections of the section assigned to them, and know that it is in safe and proper condition.” There is no proof that the section foreman did not comply with his duties in respect to this rule. The evidence showed that he made weekly inspections by walking over the track looking for objects that might foul the track. It does not follow that merely because a dangerous object was on the track at the time the accident happened that a presumption of negligence of inspection follows. In the first place it would be a burden not compatible with the practical operation of the railroad to require that ■each switching movement be preceded by a track walker. The most that could be required in the exercise of ordinary care, taking into consideration practical operation of the railroad, is that an inspection be made at reasonable times and places, the frequency depending upon varying circumstances. Furthermore, it would impose an unreasonable burden on the defendant to be required to search about this idle plant at night in order to ascertain the existence of a dangerous obstacle which it had no reason to anticipate. We emphasize that there was no evidence whatsoever that the condition described as causing this derailment had ever before existed; the evidence is to the contrary.

It is also suggested in plaintiff’s brief that a presumption of negligence arose from the fact that the place where the accident occurred was unlighted. There is certainly no requirement that an industrial yard be lighted each time a switching movement occurs. While it is true that if the entire yard had been lighted the accident might not have occurred, this is not the test of negligence which is to be applied. The test is, rather, whether the defendant in the exercise of ordinary care should reasonably have foreseen the likelihood of an injury which lighting might have disclosed. The argument falls back upon the basic question as to whether or not the railroad had notice of the dangerous condition which existed at the time and place of the accident. If it did, then of course, in the exercise of ordinary care it should have disclosed the presence of this dangerous object by illumination or some other means. But in the absence of any such knowledge before the accident, it was required to use only ordinary and careful precautions, taking into consideration the nature of the duties upon which its employee was engaged.

We have carefully examined the record as to alleged negligence on the part of the conductor Fietze, and we find no evidence of any negligence on his part which contributed to the accident. The contention is made that after being derailed the car scraped against the wall for 25 or 30 feet. There is no such testimony in the record, but the argument is apparently predicated upon counsel’s interpretation of a photograph. We do not believe that the photograph supports counsel’s position, but even though it does the undisputed testimony is that immediately upon Fietze’s discerning a shadow on the wall, arousing suspicion that something was wrong, he signalled the engineer to stop and the stop was made with reasonable promptness.

It is also argued that Bell Fibre’s use of the dolly on defendant’s tracks was wrongful and that the defendant should have interfered. The evidence indicates that prior to the time of the accident there was no wrongful use of the dolly of which defendant company had or should be charged with notice.

There are three decisions bearing strong analogy and emphasizing principles which we consider controlling.

The first is the case of Wetherbee v. E. J. & E. Ry. Co., 191 F.2d 302 (7 Cir., 1951). In that case a boxcar was pushed by an engine into an industrial yard to make a coupling onto another standing car. Upon a signal from switchman Venske the movement backed up until a switch beside which plaintiff was standing was passed. Plaintiff then threw this switch and gave the signal for the movement to proceed. Plaintiff then mounted the front end of the lead car on the engineer’s side and held on to a grab iron. In the meantime Venske started walking toward a road crossing in order to protect this crossing from the back-up movement. Wetherbee, after Venslce’s departure, was in charge of the movement, and the car on which he was riding ran onto a piece of wood about 61 inches in length which had been left alongside and inside the west rail of the track. The wheels following this piece of wood became derailed, and Wetherbee, crushed between a concrete loading dock and the boxcar upon which he was riding, was killed. Plaintiff contended, as is contended here, that it was the duty of the railroad company to furnish its employees a reasonably safe place to work, that the duty was nondelegable and follows the servant when working for the railroad on the premises of another, that the railroad must accept responsibility for the presence of the offending plank. In denying this contention the court of appeals said, at page 306:

“Supporting its contention that defendant did not furnish Wetherbee with a safe place to work, plaintiff relies on such cases as Porter v. Terminal Ry. Ass’n of St. Louis, 327 Ill. App. 645, 65 N. E. 2d 31; Terminal R. Ass’n of St. Louis v. Fitzjohn, 8 Cir., 165 F. 2d 473; Grand Trunk Western R. Co. v. Boylen, 7 Cir., 81 F. 2d 91; and Divine v. Delano, 272 Ill. 166, 111 N. E. 742. But these cases involved accidents where permanent structures had been erected allowing insufficient clearance, or where objects had long been permitted, with the knowledge of the railroad company, to remain on or near the tracks, thereby presenting a fact situation distinguishable from the case at bar. Here the board was a new threat to safety, not something about which the railroad itself had previous knowledge, even though boards had on some previous occasions been found on or near tracks in the Ruberoid plant.”

In the case of Kaminski v. Chicago River & Indiana R. Co., 200 F.2d 1 (7th Cir., 1952), plaintiff was employed by defendant as a conductor in charge of a switching engine and crew in Chicago, Illinois. While proceeding ahead of a back-up movement on an industry track inside the company premises about 3:00 a. m. plaintiff suddenly fell through a hole and landed in the space below ground level which had previously been used by the industry as a coal pit. The violation of the Federal Employers’ Liability Act charged defendant with failure to exercise reasonable care to give plaintiff a reasonably safe place to work. The court said at page 4:

“Before defendant can be charged with negligence in failing to remedy the condition which caused plaintiff’s injury, or failed (sic) to warn plaintiff of the existence of such a condition, it is necessary to establish that the defendant had actual knowledge of the condition, or, in the exercise of ordinary care, should have known of its existence. The record in this case clearly establishes that such circumstances did not exist here. The only inference that can reasonably be drawn from this record is that the condition which caused the accident had been created within a short time before plaintiff’s injury. It may have been a matter of minutes or of hours, hence defendant cannot on this record be charged with constructive knowledge of the condition.”

In this latter ease is cited the case of Small v. Ralston-Purina Co. (Mo. App.), 202 S.W.2d 533, where an employee of the railroad was injured while at work inside the plant of the Ralston Company. He stepped on a plank while inspecting railroad cars. The plank, resting on a pebble, moved under plaintiff’s weight, causing plaintiff to fall. In holding that a verdict should have been directed, the court said (p. 537):

“There is no evidence whatever in this case as to who placed the board alongside the railroad track; there is certainly no proof whatever that Terminal or any of its employees placed the board where it was found, or knew that it was there. . . . There is no proof as to whether the board had been there one minute, one hour or one day. The law is established that in order to require an employer to warn and instruct the employee, the danger must be one known to the employer and unknown to the employee. In no event was there any liability established on the part of Terminal for failure to provide its servant with a safe place to work, or failure to warn him of an unsafe condition, and hence its motion for a directed verdict should have been sustained.”

In Kloetzer v. Louisville & N. R. Co., 341 Ill. App. 478 (leave to appeal denied, see 346 Ill. App. xiii), plaintiff was a railroad inspector checking defendant’s trains at a station in East St. Louis. While working on a baggage car on defendant’s eastbound train, a Baltimore and Ohio train pulled into the station on the other side of a concrete platform, struck a hand truck belonging to the Railway Express Agency, causing the truck to be driven across the platform and striking plaintiff. Plaintiff contended that defendant violated its obligation to provide him with a safe place to work. In holding to the contrary, the court said (pp. 485-487):

“Under the Federal Employers’ Liability Act, a railroad company is not subject to absolute liability to its employees, but liability under the Act must arise from negligence on part of the employer based upon substantial evidence in the record ....

“We have given careful consideration to the evidence in the record and upon reviewing such evidence we are unable to discover any substantial evidence that the defendant, Louisville & Nashville Railroad Company was guilty of negligence charged ....

“The complaint charges that a certain express truck was wrongfully permitted to remain near the track. There was no evidence to show how long this express truck had remained at the track, nor how it got there. While evidence on this particular subject in the record . . . might have tended to establish negligence as to the express agency, or the Baltimore & Ohio Railroad, . . . such evidence does not establish negligence as to the defendant in this cause.

“. . . To indulge in speculation, that if the area had been brightly lighted, the Railway Express Agency’s agent or other agent who permitted the hand truck to remain on the platform, or the Baltimore & Ohio Railroad engineer would have been more careful and not negligent, as a basis for establishing negligence on the part of the Louisville & Nashville Railroad Company would indeed be going far afield.”

Each of the foregoing cases presents facts strongly analogous to those in the instant ease and states the principles of law which must govern here.

Plaintiff cites the cases of Devine v. Delano, 272 Ill. 166, Porter v. Terminal R. Ass’n of St. Louis, 327 Ill. App. 645, and Grand Trunk Western R. Co. v. Boylen, 81 F.2d 91, in support of her contention that decedent here was not afforded a safe place to work. These decisions were relied upon by the plaintiff in the Wetheriee case above and were distinguished on the grounds that they involved accidents where permanent structures had been erected allowing insufficient clearance or where objects had long been permitted with the knowledge of the railroad company to remain on or near the tracks, thus presenting fact situations distinguishable from the case at bar. We think this distinction sound and that it is applicable here.

Plaintiff relies upon Williams v. Atlantic Coast Line R. Co. (5 Cir.), 190 F.2d 744, where there is strong language to the effect that “the employer must make proper tests and inspections to discover dangers in the place where the employees must work, and after ascertaining their existence must take reasonable precautions for the safety of the employees.” We recognize this to be a sound principle of law. However, the facts in that case indicated that the employee in question was engaged with a crew in shoring up a washed out track in a Georgia swamp. He was required by his foreman to enter into water at or near a point where it was 7 or 8 feet deep, without a life preserver or other life-saving equipment, as a result of which he drowned. The bare statement of these facts is sufficient to distinguish it from the instant case. In Boston & M. R. R. v. Meech (1 Cir.), 156 F.2d 109, the court cited the same general principles with reference to the precautions which an employer must take. However in this latter case the employee was working on a narrow platform removing small tools from incoming locomotives. A hostler backed an engine in past this platform and was in such a position that he could not see the plaintiff, as a result of which the latter, working on another locomotive, was struck. It further appeared that the locomotive approached without whistle or other warning. In Murphy v. Lehigh Valley R. Co. (2 Cir.), 158 F.2d 481, the plaintiff was injtired as a result of an engineer’s violating the rule of the company against proceeding when the employee’s signal could not be seen, as a result of which the employee was crushed between the locomotive and a gate enclosing an industry yard.

All of these cases are plainly distinguishable upon the facts, in each case the employer having clearly violated a duty owed the employee or requiring him to work in a place which the employer knew or could in the exercise of ordinary care have known was unsafe.

Inasmuch as we are of the opinion that defendant’s motion for a directed verdict should have been allowed for the reasons here stated, it is unnecessary to consider further assignments of error.

Accordingly the judgment of the circuit court of Cook county is reversed.

Judgment reversed.

Schwartz, P. J. and Robson, J., concur.


text:
    Elijah Townsend, Appellant, v. Chicago Transit Authority, and Mueller Transportation Company, Appellees.
    Gen. No. 46,098.

      Opinion filed December 15, 1953.
    Rehearing denied January 5, 1954.
    Released for publication January 5, 1954.

      Director & Liebenson, of Chicago, for appellant; Harold A. Liebenson, and Philip Z. Levinson, both of Chicago, of counsel.
    Thomas C. Strachan, Jr., James 0. Dwight, Arthur J. Donovan, and Michael A. Gerrard, all of Chicago, for certain appellee; Michael A. Gerrard, of Chicago, of counsel.
    Van Duzer, Gershon & Quinlan, of Chicago, for certain other appellee; John B. Van Duzer, and Horace W. Jordan, both of Chicago, of counsel.
   Mr. Justice Tuohy

delivered the opinion of the court.

Plaintiff, while a passenger on a streetcar of defendant Chicago Transit Authority, was injured as a result of a collision between the streetcar and a truck owned by defendant Mueller Transportation Company. From judgment on verdict of not guilty as to both defendants, plaintiff appeals.

It is contended that the verdict is against the manifest weight of the evidence; that improper questioning was permitted to plaintiff’s prejudice; that error was committed in the giving of certain instructions offered on behalf of defendants.

The accident occurred on October 20, 1951 near the intersection of Ashland avenue and 35th street in the City of Chicago. Plaintiff, then employed as a machine operator for Armour and Company, was riding on the front platform of the streetcar. There was evidence that he was knocked through the door to the interior of the car, and after complaining of injury to his head, legs and back to one of the members of the crew, was taken to the Peoples Hospital. He remained in the hospital for six days. We are not further concerned here with the nature and extent of his injuries.

Defendants do not deny the accident, but the defendant Transit Authority maintains substantially that the transportation company’s truck swerved from the lane of traffic to the right of the streetcar tracks, whence it had been traveling, onto the tracks and then made a sudden stop at 35th street without signaling, thereby causing the streetcar to strike the truck. The transportation company defends substantially upon the proposition that the truck was being operated near the right rail ahead of the streetcar as it proceeded northward on Ashland avenue; that about 250 feet from the intersection with 35th street the truck began to slow down, as the traffic light was red for Ashland avenue traffic and there were several cars stopped at the light facing north on Ashland; that as the truck came up to these cars the light changed to green and the cars started ahead; that the truck was going not over 10 miles per hour and it continued ahead; that when the car directly ahead of the truck reached the corner it started to turn right without making any signal and the truck stopped to avoid striking this turning car and was hit in the rear by the streetcar. The truck driver insisted that at no time did he swerve in front of the streetcar, but continued to operate his truck in a straight line near the right or east rail of the streetcar tracks for a considerable distance prior to the collision.

Other than the medical testimony and that of one passenger all the evidence was adduced by interested witnesses, the motorman and the truck driver having been called by the plaintiff under section 60 [Ill, Rev. Stats. 1953, ch. 110, § 184; Jones Ill. Stats. Ann. 104.060]. No contention is made by either party that there was any contributory negligence on the part of plaintiff. The undisputed evidence indicates that he was injured as a result of the action of one or both of these defendants. Upon such facts the verdict can neither be understood nor countenanced. Both defendants here make the same arguments that apparently were made before this jury, namely, that the codefendant’s negligence was responsible for the accident, and each asked to have the judgment on the verdict sustained as to it. We think the ends of justice best served by remanding this case for a new trial as to both defendants.

Inasmuch as the case must be tried again, we will consider further assignments of error.

The practice of laying foundation for impeachment by questioning and then failing to follow up by proof, as was done here by defendant Transit Authority, is to be strongly criticized. We trust that on a retrial of this case there will be no repetition of this offense.

Instruction 19 given at the request of defendant Chicago Transit Authority is as follows:

“The court instructs the jury that if they believe, from all of the evidence in the case, that while the defendant, Chicago Transit Authority, and its servants were, if they were, exercising ordinary care, the defendant, Mueller Transportation Company, at the time and place of the accident in question, suddenly and unexpectedly, and without knowledge of the defendant, Chicago Transit Authority, suddenly drove its truck upon the defendant, Chicago Transit Authority’s track, then, in order to charge the defendant, Chicago Transit Authority, with a duty to avoid striking the truck of the defendant, Mueller Transportation Company, the plaintiff must show by a preponderance of the evidence in the case, that the circumstances were of such character that the defendant, Chicago Transit Authority’s motorman had an opportunity to become conscious of the facts giving rise to such duty, and a reasonable opportunity, in the exercise of ordinary care and caution, to perform such duty. And if the jury further believe from the evidence, that the facts as shown by the evidence do not charge the defendant, Chicago Transit Authority, and its servants with a duty as thus defined, or if the jury believe from all the evidence, that the defendant, Chicago Transit Authority, and its servants, did not have a reasonable opportunity, in the exercise of ordinary care, to perform such duty as thus defined, then they should find the defendant, Chicago Transit Authority, not guilty. And if the jury believe from the evidence in the case, that the truck of the defendant, Mueller Transportation Company, suddenly and unexpectedly was driven across and upon the track, in front of the car of the defendant, Chicago Transit Authority, which occasioned the injury and that the motorman in charge of said streetcar, did all that could be done, in the exercise of ordinary care to avoid the accident in question, then the plaintiff cannot recover in this case against the Chicago Transit Authority.”

We are of the opinion that it was error to give such an instruction in a case where plaintiff was a passenger. Four times in the instruction it was indicated that if the defendant streetcar company was in the exercise of ordinary care in operating its car and that the collision with the truck occurred notwithstanding, plaintiff could not recover. It is fundamental that a common carrier owes its passengers the highest degree of care, and the effect of this instruction was to persuade the jury that something less than such a degree of care might be substituted. Counsel for the Transit Authority state that the instruction is taken verbatim from Chicago Union Traction Co. v. Browdy, 206 Ill. 615. The cited case involved a situation where the driver of a vehicle upon the street, which was struck by defendant’s streetcar, brought suit for damages. No passenger-carrier relationship was involved in the case where the instruction was given, and a casual reading of the opinion indicates that it is not authority for the proposition cited.

Complaint is made of instruction 17, which is as follows:

“The plaintiff does not make out a case against the defendant, Chicago Transit Authority, by proving the happening of the accident and an injury; before the plaintiff can recover he must prove by a preponderance of the evidence, not only that he was in the exercise of such due care for his own safety, but must also prove by a preponderance of the evidence that the said defendant, Chicago Transit Authority, was guilty of the negligence charged in the complaint and that such negligence, if any, caused or contributed to the injury, if any. And it does not devolve upon the defendant, Chicago Transit Authority, to show that it was not guilty of the specific negligence charged against it, but the law is, that the burden of proof is upon the plaintiff to prove by a preponderance of the evidence that the said defendant, Chicago Transit Authority was guilty of such negligence, and unless the plaintiff proves all of these matters by a preponderance of the evidence, he cannot recover.”

While we would not be disposed to reverse this case for the giving of this instruction, we think the instruction might better have been refused, for the reasons, first, that it is argumentative, and second, it seems to place in issue the question of whether or not plaintiff was in the exercise of due care and caution for his own safety at the time of the accident. In this ease we find no evidence whatsoever that plaintiff was not in the exercise of due care and caution for his own safety at the time of the accident.

Accordingly, the judgment of the circuit court of Cook county is reversed and the cause remanded for a new trial.

Judgment reversed and ccmse remanded.

Schwartz, P. J. and Robson, J., concur.


author: Presiding Justice Feinberg.

text:
    Sam Schaffer, Appellant, v. Park City Bowl, Inc., Appellee.
    Gen. No. 46,017. (Abstract of Decision.)
    Loeff & Panter, for appeUant;
    Martin G. Loeff, of counsel;
    Yaffe & Yaffe, for appeUee; J. E. Yaffe, of counsel.
    Opinion filed December 2, 1953;
    released for publication December 30, 1953.
   Opinion by Not to be published in full.

Presiding Justice Feinberg.


author: Justice Lewe.

text:
    Walter J. Turner and George L. Googe, Individually and as Vice Presidents and Members of Board of Directors and as Representatives of Members of International Printing Pressmen and Assistants’ Union of North America, and Peter Perrigo, Member of said Union, Appellees, v. Walter A. Rebenson, William R. Kenny, Joseph Nelligan and Joseph Gavin, Individually and as Representatives of Unincorporated Association Known as Printing Specialties and Paper Products Union Number 415, Appellants. International Printing Pressmen and Assistants’ Union of North America, Defendant-Appellee.
    Gen. No. 46,260. (Abstract of Decision.)
    Russell Packard, for appellants;
    Jacob N. Gross, for appellees.
    Opinion filed December 2, 1953;
    released for publication December 30, 1953.
   Opinion by Not to be published in full.

Justice Lewe.


text:
    People of State of Illinois, Defendant in Error, v. Ira G. Brown, Plaintiff in Error.
    Gen. No. 46,285. (Abstract of Decision.)
    Ray E. Lane, for plaintiff in error;
    Latham Castle, Attorney General, for defendant in error;
    John Gutkneeht, State’s Attorney, John T. Gallagher, Rudolph L. Janega, Arthur F. Manning, and Roman Stachnik, Assistant State’s Attorneys, of counsel.
    Opinion filed December 2, 1953;
    rehearing denied December 30, 1953;
    released for publication December 30, 1953.
   Opinion by Not to be published in full.

Justice Lewe.


author: Justice Robson.

text:
    James Brooks, Appellee, v. Mahalia Brooks, Appellant.
    Gen. No. 46,101. (Abstract of Decision.)
    Daniel Costigan, for appellant;
    Richard J. Gleason, of counsel;
    James D. Crosson, for appellee.
    Opinion filed December 15, 1953;
    released for publication January 5, 1954.
   Opinion by Not to be published in full.

Justice Robson.


author: Justice Tuohy.

text:
    Mary M. Diver, now Known as Mary M. Vander Vries, Appellee, v. William R. Diver, Appellant.
    Gen. No. 46,088. (Abstract of Decision.)
    Jesse H. Brown, for appellant;
    Jesse H. Brown, and Donald M. Becker, of counsel;
    Daniel A. Costigan, for appellee.
    Opinion filed December 15, 1953;
    released for publication January 5, 1954.
   Opinion by Not to be published in full.

Justice Tuohy.


author: Mr. Justice Schwartz

text:
    Robert Keturosky, Appellee, v. Indiana Harbor Belt Railroad Company, and Chicago, Milwaukee, St. Paul and Pacific Railroad Company, Appellants.
    Gen. No. 45,823.

      New opinion filed December 1, 1953.
    Opinion filed May 12, 1953.
    Rehearing allowed September 21, 1953.
    Rehearing denied December 1, 1953.
    Released for publication January 22, 1954.
    Edwin E. Eckersall, of CMcago, for appellants; Carson L. Taylor, of CMcago, of counsel.
    James A. Dooley, of CMcago, for appellee.
   Mr. Justice Schwartz

delivered the opinion of the court.

On March 26, 1948 plaintiff, wMle driving an automobile across the railroad tracks of the Indiana Harbor Belt Eailroad Company at twenty-fifth avenue in Melrose Park, Illinois, was struck by the engine of a train operated by the Chicago, Milwaukee, St. Paul and Pacific Eailroad Company. He was seriously injured, and upon trial, the jury returned a verdict of $45,000. The usual post-trial motions were overruled, and judgment was entered on the verdict.

Twenty-fifth avenue at the place in question is described as a heavy traffic street (23 feet wide) running in a north and south direction. A series of twelve tracks cross it. Part of defendants’ Norpaul Yard is east and part of it is west of the crossing. Approaching the crossing from the south there is a 5% grade, that is, a rise of five feet in one hundred feet of travel. There were approximately 70 trains and 30 switch movements over the crossing per day. The crossing is wholly unguarded, save for a sign on the east side of twenty-fifth avenue warning that there is a railroad crossing ahead, and a standard railroad-crossing sign south of the most southerly rail.

On the night of the accident, plaintiff, who was 22 years old left his home sometime shortly before 8:00 p. m. and drove over this crossing to a bowling alley in Melrose Park, where he bowled until about 11:00 p. m. He left the alley and drove north on twenty-fifth avenue toward the crossing in question. It was a rainy, foggy night and the visibility was poor. Plaintiff was alone in the car and he was the only witness in his own behalf. One witness testified for defendants — the engineer of another engine which was near the scene of the accident. The crew of the train which struck plaintiff did not appear as witnesses, and the efforts of plaintiff’s counsel to obtain their names was thwarted by objections of defendants. Assuming, as we must in the light of the verdict and judgment, that the jury and court believed plaintiff, what happened immediately prior to the accident is as follows:

When plaintiff was about 200 feet south of the crossing, he saw a locomotive and caboose being operated in a northeasterly direction on the first or most southerly track. It was 200 or 300 feet southwest of the crossing. There was a bright headlight on this locomotive. Plaintiff continued north until he was about 40 feet south of the first track, when he brought his automobile to a stop. He watched the engine and caboose, and when the caboose was approximately in the center of the road, he started his car very slowly, looking to the right and left. His attention was attracted to an engine standing west of twenty-fifth avenue on one of the more northerly tracks. Its headlight was burning and it was steamed up. After the engine pulling the caboose had passed over the crossing and was about 100 feet beyond it, plaintiff looked to his right and then started over the track. Just as he got to the second track from the south, he saw a dim headlight and the front of an engine going west. This locomotive struck his car between the bumper and the end of the body. After the impact, the headlight on the engine became bright. Plaintiff testified that there was no whistle or bell sounded by the westbound engine. On behalf of defendants, the engineer we referred to testified that he was on an engine on the fifth track from the south end of the crossing. He corroborated plaintiff’s story with respect to poor visibility and that plaintiff went across the tracks slowly. At one point he said he could not see the automobile because a northeast-bound train was between it and him. He was not able to say whether or not plaintiff stopped, but he did see plaintiff’s car move over the crossing at not more than five to ten miles per hour.

The charges on which plaintiff relies are the dangerous condition of the unguarded crossing; negligent operation and maintenance of the train; negligent maintenance of the crossing in a dangerous and defective condition in allowing a tree to be within 500 feet of the right of way of the crossing; failure to keep a proper and sufficient lookout; the use of an insufficient headlight; and the failure of the locomotive to ring a bell or sound a whistle.

Defendants rely for a reversal on three grounds— that plaintiff was guilty of contributory negligence as a matter of law; that the alleged negligence of defendants in allowing a tree to be within 500 feet of the right of way was improperly presented to the jury by plaintiff’s instruction No. 2, in that the tree referred to was not on the railroad right of way; and that no negligence on the part of defendants was proven.

Defendants’ point with respect to lack of due care is that plaintiff proceeded over the crossing as soon as the engine and caboose for which he had stopped had cleared the crossing; that his view to the northeast was still obstructed; and that he should have waited until he had a clear view enabling him to see the train approaching from the northeast. It is argued that instead of so doing, he went on to the track immediately behind the caboose that was moving over the crossing. This latter is defendants’ interpretation of plaintiff’s testimony and is not, in our opinion, borne out by a reasonable understanding of it. Prom the whole of the testimony it appears to us that plaintiff did not start across the track until the caboose had gone far enough beyond the crossing so that he could see several hundred feet to the northeast down the second track, and that when he started to cross that track, the train was upon him without giving him any warning and before he could do anything about it.

It is well established that only where it can be said that all reasonable men would agree that plaintiff failed to exercise due care, can it be so found as a matter of law. A jury of twelve and the trial judge have already found that plaintiff was in the exercise of due care. Only a case approaching a gross miscarriage of justice would warrant our reversing a judgment on that ground. What is the duty of an automobilist approaching an unguarded railroad crossing? In early cases courts placed a high and rigid standard of care on the public when crossing such tracks. They started with the rule of “Stop, Look and Listen,” and “if necessary, get out of your car,” so that the fact of an accident itself was considered almost conclusive proof that it was due to negligence. Justice Holmes in Baltimore & Ohio R. Co. v. Goodman, 275 U. S. 66, said that this was a standard of conduct so clear that even though a jury might have found otherwise, it was up to the courts to enforce it. The emphasis on such a standard shifted as the courts sought to reconcile it with the persistent habits of the public. In Pokora v. Wabash Ry. Co., 292 U. S. 98, the Supreme Court found that the opinion of Justice Holmes in the Goodman case had become a source of confusion, in that it imposed a standard for application by the judge that “has only wavering support in the courts of the states.” The court considered that after forty years of experience with automobiles, we now know that motorists do not approach a railroad crossing with timidity and take heed of a dire danger before them. The behavior of plaintiff was normal. He was confronted with the necessity of crossing an unguarded series of heavily used railroad tracks with trains approaching in different directions and he proceeded across slowly, keeping a watchful lookout, when he was struck by a train which gave no warning and which did not have an adequate headlight. The issue of due care was properly presented to the jury. Bales v. Pennsylvania R. Co., 347 Ill. App. 466; Smith v. Illinois Central R. Co., 343 Ill. App. 593; Applegate v. Chicago & N. W. Ry. Co., 334 Ill. App. 141; Pohora v. Wabash Ry. Co., 292 U. S. 98; Chicago & N. W. Ry. Co. v. Hansen, 166 Ill. 623; Chicago & A. R. Co. v. Pearson, 184 Ill. 386; Gills v. New York, C. & St. L. Ry., 342 Ill. 455.

The only charge of negligence concerning which there is any serious question was that defendants negligently maintained their crossing in a dangerous and defective condition, in that they “allowed a tree to be within 500 feet of the right of way of said crossing.” In our original opinion we found that there was substantial error in this instruction in that the tree was not on defendants’ right of way and, therefore, defendants could not be charged with negligence in failing to remove it. For that reason we felt the judgment should be reversed and the cause remanded. Plaintiff filed a petition for rehearing and pointed out that there was evidence tending to prove that the tree was actually on the right of way of the railroad company. We granted a rehearing in order to be more fully informed on that question. We felt that the question of the location of the tree had an important bearing on the propriety of the instruction. Having examined the petition for rehearing, the answer thereto, photographs, and other evidence, it is now apparent to us that there is evidence tending to prove this tree is located on the right of way. We were misled by the manner in which this instruction was written and by the way in which the issue was presented to this court. However, we are now of the opinion that there is no reversible error in the giving of this instruction.

Judgment affirmed.

Tuohy and Robson, JJ., concur.


text:
    Roland O. Roth, Appellee, v. R. Lehman, Mary Lehman and Walter Chcezewski, Defendants. On Appeal of R. Lehman and Mary Lehman, Appellants.
    Gen. No. 46,057.

      Opinion filed December 1, 1953.
    Released for publication January 22, 1954.
    Abdon M. Pallasch, of Chicago, for appellants; Kellam Foster, of Chicago, of counsel.
    Korean Movisian, of Chicago, for appellee.
   Mr. Presiding Justice Schwartz

delivered the opinion of the court.

Defendants B. Lehman and Mary Lehman appeal from a decree establishing and foreclosing a mechanic’s lien on property owned and occupied by them. Having decided to make certain repairs to their home, defendants employed a general contractor who, in turn, made a contract with plaintiff for a portion of the work. According to plaintiff, the contractor called him up and asked him to quote a price on the setting of cement blocks for a foundation to the basement, and plaintiff quoted a price of $1.00 per block, which included labor, necessary material to set the blocks, and profit.

On July 31,1951 plaintiff served a notice of lien upon defendants, notifying them that he had been employed by the general contractor to furnish labor and material for the purpose of making a cement block foundation to the basement of their house. On August 9, 1951, plaintiff filed his claim for lien in the amount of $831.79, which included not only the cost of the block foundation, but a considerable amount of other work which plaintiff contends was the subject matter of an agreement between him and the contractor made in May 1951.

Defendants make two defenses: First, that according to the testimony, the contractor and plaintiff entered into an oral agreement whereby plaintiff, in consideration of $500 agreed to furnish not only the foundation wall, but to take off doorways and boards, to tear down the stairway, and to do considerable other work. Second, that plaintiff is limited to the work set forth in his notice of lien. It is argued by plaintiff that defendants cannot now raise the point of legal insufficiency of the notice. In our opinion, there is adequate preservation of the question for the consideration of this court. Notice to the owner is the very substance of the basis on which a mechanic’s lien may be predicated. The question presented to us is, therefore, whether plaintiff may, by testimony of oral conversations contradicted by other witnesses, .enlarge the scope of the claim presented by the notice.

Mechanics’ liens are in derogation of the common law and, therefore, the statute creating them is to be strictly construed. Butler & McCracken v. Gain, 128 Ill. 23, 27; Brennan v. McEvoy & Co., 196 Ill. App. 336, 341; Schwulst Gerling Co. v. Frost, 269 Ill. App. 213, 223. “This is true notwithstanding section 39 [Ill. Rev. Stats. 1953, ch. 82, § 39; Jones Ill. Stats. Ann. 74.39] of the act which provides: ‘This act is and shall be liberally construed as a remedial act.’ ” North Shore Sash and Door Co. v. Hecht, 295 Ill. 515, 519; Schwulst Gerling Co. v. Frost, supra. “The remedy by mechanic’s lien is in addition to the ordinary remedies afforded by the common law and is a privilege enjoyed by one class of the community above other classes.” Colp v. First Baptist Church of Murphysboro, 341 Ill. 73, 78; Schwulst Gerling Co. v. Frost, supra. “A party seeking to enforce such a lien must bring himself strictly within the terms of the statute.” Butler & McCracken v. Gain, supra; Davis v. Rittenhouse & Embree Co., 92 Ill. App. 341, 344, aff’d sub nom. Davis v. Upham & Stone, 191 Ill. 372; Schaller-Hoerr Co. v. Gentile, 153 Ill. App. 458, 461; Brennan v. McEvoy & Co., supra; Liese v. Hentze, 326 Ill. 633, 637; Colp v. First Baptist Church of Murphysboro, supra; Schwulst Gerling Co. v. Frost, supra; Western Plumbing Supply Co. v. Horn, 269 Ill. App. 612, 619.

But there is a further and more cogent consideration for restricting mechanics’ liens to the substance, if not the letter, of the written notice to the owner. This is the nature of the claim itself. It is a claim which, without the express consent of the owner of property, becomes a lien, that is to say, a mortgage on the .property without those formal requirements of writing, signature, acknowledgment, and recording essential to a mortgage or trust deed. An extension of such a claim ought not to be permitted except on strict compliance with the statute. Otherwise, carelessness in performance and collusion in extravagant and unnecessary work will find their easy victims. To hold that all that need be done to extend a lien is to perform the work and say that a nod of the head or a simple word authorized it, would be to place a serious obligation on all too tenuous a basis. The matter of written notice is in itself simple, and any extension of its terms should be in specific writing because it is the only formal document on which a man whose property is being subjected to the lien may rely. A reasonable construction of plaintiff’s notice of lien under section 24 of the Act [Ill. Rev. Stats. 1951, ch. 82, § 24; Jones Ill. Stats. Ann. 74.24] fails to reveal a claim for more than the material and labor necessary to lay cement blocks. No one reading the statement would conclude that claimant intended more. Provost v. Shirk, 223 Ill. 468, 474. This court cannot properly infer more in favor of one claiming a lien. Cronin v. Tatge, 281 Ill. 336, 337.

We therefore hold that plaintiff can recover only for the work set forth in his notice, to-wit: the making of the cement block foundation. There are two bases by which to measure plaintiff’s claim for that work. One is a time and material basis, and the other is a basis of $1.00 per block, the price quoted by plaintiff as the basis on which the cement block job was figured. In view of plaintiff’s own testimony, we deem the $1.00 per block basis a sufficiently proper ground for plaintiff’s recovery. Defendant E. Lehman counted 352 cement blocks actually installed in the building. Plaintiff contends he delivered 416 cement blocks and that the difference was stolen by children or others or broken. Plaintiff’s explanation as to this discrepancy seems reasonable. He is entitled to recover $416 on his lien, less $100 already paid him on account, or $316. The costs of this appeal shall be charged to plaintiff and the costs of the proceedings below shall be divided equally between the parties.

Decree reversed and cause remanded, with directions to enter a decree consistent with the views herein expressed.

Decree reversed and cause remanded with directions.

Tuohy and Robson, JJ., concur.