author: MB. PRESIDING JUSTICE HIBBS

text:
    T. M. Shircliff, Plaintiff-Appellee, v. Dixie Drive-In Theatre, Inc., Defendant-Appellant.
    Gen. No. 10,015.
    Third District.
    October 19, 1955.
    Released for publication November 4, 1955.

      Graham, Wise & Meyer, of Danville, for appellant.
    Acton, Baldwin, Bookwalter & Meyer, of Danville, for appellee; Matthew E. Welsh, of Vincennes, Indiana, of counsel.
   MB. PRESIDING JUSTICE HIBBS

delivered the opinion of the court.

On February 10, 1950 at Vincennes, Indiana, Roy O’Keefe, president of Dixie Drive-In Theatre, Inc., executed a promissory note payable to T. M. Shircliff in the sum of.$2,000 to obtain funds which O’Keefe represented were to be used to pay certain taxes owed by Dixie Drive-In Theatre, Inc. The note was signed, “Roy O’Keefe, President Dixie Drive-In Theatre Inc.” Shircliff turned over to O’Keefe a check for $2,000 which the latter deposited in the corporation’s account in the Second National Bank of Danville, Illinois. A few days later O’Keefe withdrew $2,000 from this account to pay a personal obligation. Neither the principal or any interest on the note has ever been paid. O’Keefe, personally, was declared a bankrupt on June 1,1951 but the note in question here was not scheduled in the proceedings. Shircliff filed this suit on the note in the Circuit Court of Vermilion County on September 30, 1953 against the corporation. The court heard the matter without a jury and entered judgment for plaintiff on September 23,1954. The defendant corporation has appealed to this court.

The law of Indiana must be applied here since the note was executed and delivered there. (Davis v. Mosbacher, 252 Ill. App. 536.) Defendant contends that under the decisions of that State the words, “President, Dixie Drive-In Theatre Inc.” added to O’Keefe’s name are merely descriptio personae and do not obligate the corporation on the note. In Prescott v. Hixon, 22 Ind. App. 139, 53 N. E. 391, a promissory note sighed “O. O. Prescott, Pres. Mid. B & Cheese Co., M. A. Cordrey, Sect. Cr. & Cheese Co.” was held to be the personal obligation of the makers and not an obligation of the corporation. It does appear that this was the settled law in Indiana until the adoption of the Uniform Negotiable Instruments Act in 1913. See collection of cases in Prescott v. Hixon, supra and in Second Nat. Bank v. Midland Steel Co., 155 Ind. 581, 58 N. E. 833, both decided before the adoption of the Uniform Act. It should be noted, however, that in the latter case the Supreme Court of Indiana recognized that this rule is subject to question. The court there said: “In reviewing the cases in this State, it will be observed that the court, while adhering to the rule that the words affixed to the names of the persons signing an instrument are to be treated as mere descriptio personae, deprecates the doctrine as an unreasonable one, and holds, whenever possible, that when the contract itself shows that the words were not merely descriptive of the person they will not be so regarded.”

Section 20 of both the Illinois and Indiana Uniform Negotiable Instruments Act [Ill. Rev. Stats. 1953, ch. 98, § 40; Jones Ill. Stats. Ann. 89.040] provides: “Where the instrument contains, or a person adds to his signature, words indicating that he signs for or on behalf of the principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; . . .” This section has not been construed by the courts of review in Indiana since its enactment but defendant contends that it does not change the rule set forth in the Prescott case, supra.

In Hlinois, early decisions enunciated a rule similar to that followed in the Prescott case. (Powers v. Briggs, 79 Ill. 493; Hypes v. Griffin, 89 Ill. 134; Scanlan v. Keith, 102 Ill. 634.) Our courts have held, however, that since the adoption of the Uniform Act in this State, Ill. Rev. Stat. 1955, Chap. 98, par., 40, Section 20 is to be construed as changing the rule. In Tampa Investment & Securities Co. v. Taylor, 272 Ill. App. 541, the court said at page 549: “Section 20 changed the previous rule that a name followed by a designation as to some relationship to another would be considered only descriptio personae and the maker therefore personally liable. Professor Brannan says (Brannan’s Negotiable Instruments Law, 4th ed., p. 164): ‘The plain language of this section indicates that it was the intention of the draftsman and the commissioners to clear up the unnecessary and unpardonable confusion caused by the failure of some of the courts to exercise a little common sense and to recognize mercantile usage. Much of the difficulty found in this subject is purely manufactured and would not trouble a business man for a moment.’ ” Thus, in Illinois, whenever an instrument discloses that its maker signs in a representative capacity the obligation is that of the principal if the agent was duly authorized and the weight of authority elsewhere seems to be in accord with this view. (Smith v. Reisch, 329 Ill. App. 45, 67 N.E.2d 304. See 8 Am. Jur. 221, secs. 474—480. While we cannot predict with certainty how the Supreme Court of Indiana will construe Section 20, we believe in view of its expressed dissatisfaction with its earlier decisions that it would follow the construction generally adopted elsewhere and set forth above.

Furthermore, we believe it is a sound principle of law that in cases of this kind where the sister State has not construed its statute, the courts of this State, when called upon to construe it, will place thereon the same construction as has been applied by the courts of last resort of this State to a like statute in effect in this State.

There remains the further question of O’Keefe’s authority to bind the corporation. It is true, as defendant points out, that there is no proof that the corporation expressly authorized O’Keefe to execute the note. The courts of Indiana recognize however that the president of a corporation permitted to act with apparent authority by his board of directors may bind the corporation. (Elkhart Hydraulic Co. v. Turner, 170 Ind. 455, 84 N. E. 812; Baum v. Nord, 88 Ind. App. 674, 164 N. E. 294.)

The trial court found that “O’Keefe, as President, transacted the entire business of the corporation, and, in fact, the directors were apparently a little less than nominal, if possible. Under these circumstances the corporation held him out as the agent to transact business. There is nothing in this transaction but what would ordinarily be included in the ordinary business of the corporation.” We believe these conclusions are supported by the proof in this case and should not be disturbed by this court. (In re Will of Gleeson (Colbrook v. Black), 1 Ill.App.2d 409.) O’Keefe himself testified that he was the only person who spoke for the corporation at the time the note in question was executed. While the borrowing of money to pay taxes may or may not be in the ordinary course of a business, depending upon other facts, we believe the trial court was justified in so finding here where O’Keefe was in fact, the corporation.

The judgment of the Circuit Court of Vermilion County is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: MR. JUSTICE CARROLL

license: Public Domain

text:
    Albert Andres, a Minor, by Dewey Andres, His Father and Next Friend; Dale Kinsel, a Minor, by Owen E. Kinsel, His Father and Next Friend; and John Hall, a Minor, by Oscar Hall, His Father and Next Friend, Plaintiffs-Appellees, v. Roberta Green; Laurace L. Molton; Robert J. Seus and Lee Tucker, Doing Business as Se-Us Supply Company, Defendants. Roberta Green, Defendant-Appellant.
    Gen. No. 10,005.
    Third District.
    October 19, 1955.
    Released for publication November 4, 1955.

      C. E. Tate, of Champaign, for appellant Roberta Grreen.
    Robert C. Summers, and Arthur J. B. Showalter, both of Champaign, for appellees.
   MR. JUSTICE CARROLL

delivered the opinion of the court.

This action was brought to recover damages for injuries sustained by plaintiffs due to the alleged negligence of the defendants in operating their automobiles.

A jury trial resulted in separate verdicts for each plaintiff against the two defendants jointly, as follows: for Dale Kinsel, $5,000; for Albert Andres, $10,000; for John Hall, $10,000. Both defendants filed motions for a new trial and in the alternative for judgment notwithstanding the verdict. As to plaintiff John Hall, the motion was overruled and judgment entered on the verdict. As to the other plaintiffs, the Court overruled the motion provided remittiturs were entered as follows: Albert Andres, $2,000; Dale Kinsel, $1,500. The remittiturs were entered and the Court thereupon entered judgments on the verdicts less the amount remitted by each plaintiff. Only the defendant Roberta Grreen has appealed and plaintiffs have filed a cross-appeal.

No questions are raised on the pleadings or as to the giving or refusing of instructions.

As ground for reversal the defendant contends that the trial court improperly refused to direct a verdict in her favor at the close of plaintiffs’ evidence and at the close of all the evidence because the proximate cause of the collision in which plaintiffs were injured was the negligence of her codefendant Laurace L. Holton; that she was not guilty of negligence and that plaintiffs were guilty of contributory negligence and that the verdicts were the result of passion and prejudice not cured by the remittiturs and were against the manifest weight of the evidence.

Cross-errors assigned by plaintiffs are that the trial court erred in refusing to direct a verdict for each of the plaintiffs at the close of the evidence; in ruling upon the admissibility of certain evidence, in refusing to enter judgment on the original verdicts and in ordering remittiturs to be entered.

Determination as to whether there is merit in defendant’s contentions requires examination of the evidence produced upon the trial. The record reveals the collision occurred January 9, 1954 about 7:30 p. m. on a 2-lane paved highway known as Route 150 at a point about 3% miles west of the City of Champaign and on the crest of a small hill; that the pavement was 18 feet wide and dry; that the weather was clear but cold; that at the place of the collision there was a 20-foot shoulder on the south side of the pavement; that Albert Andres, aged 19, was driving his car in a Westerly direction on the north side of the center line of the pavement at a speed of 45 miles per hour; that plaintiff Hall, 18 years, was riding in the front seat and plaintiff Kinsel, 19 years old and Donald Hyatt were in the rear seat; that the car of defendant Roberta Creen was being driven east at a speed of about 50 miles per hour; that the defendant Laurace L. Holton was driving his car west behind the Andres car prior to the occurrence : that the point of collision was just west of an “End No Passing Zone” sign; that the Andres car was north of the center line of the pavement as it proceeded west; that the collision occurred in the westbound traffic lane; that the Andres car was at no time south of the center line; that no cars were travelling in front of or behind the Creen car, and no cars were parked on the south shoulder of the road opposite the point of collision.

The above facts do not appear to be in dispute. However, there is a sharp conflict in the testimony as to the position of the Holton car just prior to and at the time of the collision and as to whether the conduct of Holton in the operation of his car was such as to constitute the proximate cause of the accident. Plaintiff Andres testified that he first saw the lights of the Holton car through his rearview mirror when it was 5 or 6 car lengths back of him; that when he was about 60 feet from the point of collision he observed Holton “starting to pull out”; that he did not see the Holton car going around his car; that he first saw the Green car when it was 196 feet away; that it was then partly on the north side of the center line; that it suddenly went across the north traffic lane; and that the right side of the Green car came in contact with the front of his car. The other passengers in the Andres car testified that they did not see the Holton car at any time.

Defendant Holton testified that he was driving about 4 or 5 car lengths behind the Andres car; that he pulled out to see whether he could pass or not; that he saw there was going to be a collision between the Andres and Green cars; that his car did not strike either of these cars; that he turned to get behind the Andres car; that the Andres and Green cars collided in the north or right-hand traffic lane; that he then made a left turn to the shoulder, lost control of his car which then went across the pavement and hit a culvert west of the scene of the collision.

The defendant Green testified that as «she came to the crest of the hill, she saw the Holton and Andres cars 125 feet away; that she saw two sets of headlights straight across from each other; that she started to slow down by applying her brakes; that the Holton car was pulling into her traffic lane to pass the Andres car; that she applied her brakes; that she was struck by both cars; that the Andres car struck her first; that her car was on the pavement when struck and that she was excited when she saw the two cars coming up the hill.

Arthur Huff, passenger in the Green car, testified to seeing two pairs of headlights coming at the Green car; that he did not know how close they were when he saw them and that he did not know whether there was more than one impact.

Leslie Parker, Jr., another passenger in the Green car, testified that he saw the two headlights before the accident; that the Green car was travelling east but when he saw the headlights it was headed northeast; that he felt two impacts; that he felt the brakes being applied; and that the car then seemed to swerve to the left.

The foregoing is in substance the evidence which was before the jury upon the issue as to the cause of the accident.

In order to sustain defendant’s argument that the trial court erred in refusing to direct a verdict in her favor, it must appear that upon consideration of all the evidence with all reasonable inferences therefrom, in its aspect most favorable to plaintiffs there is a total failure to prove any necessary element of plaintiffs’ case. Heideman v. Kelsey, 414 Ill. 453; LeMay v. Jenkins, 6 Ill.App.2d 57.

The evidence discloses no dispute as to the fact that at the time of the collision the Andres car was being driven on its own side of the pavement. It is likewise conceded that the defendant’s car came in contact with the Andres car on the north or plaintiff’s side of the road. However, the defendant argues there is no evidence of any negligence on her part which was the proximate cause of the collision and the resulting injuries to plaintiffs. It is further contended that the proximate cause of the accident was the negligence of Holton in attempting to pass the Andres car on a hill and of Andres negligence in continuing to drive Ms car without reducing its speed. Admitting that her car did cross to the left of the center line of the highway, defendant declares she did not drive it there but explains its presence on the wrong side of the road by saying that its position was caused by her being confronted with two cars abreast of each other leaving her no other place to go except to the left.

Driving a motor vehicle on the left side of the highway is not negligence as a matter of law. However, it may be negligence as a matter of fact depending upon the facts of the particular case. Chandler v. Gifford, 223 Ill. App. 486. In the instant case the testimony of the defendant to the fact that she met two cars side by side at the crest of a hill is contradicted by that of Holton and of Andres and the other occupants of his car who testified that the Holton car did not pass or attempt to pass the Andres car. It, therefore, cannot be said that there was a complete failure of proof by plaintiffs as to the necessary elements of negligence and contributory negligence. Accordingly, the question as to whether plaintiffs exercised due care and as to whether defendant was guilty of negligence in the operation of her car at the time and place of the collision and which was the proximate cause thereof was one of fact to be determined by the jury from a consideration of all the facts and circumstances in evidence. The fact that the jury in considering the evidence did not adopt defendant’s theory as to how the accident occurred, would not be grounds for interfering with the verdict.

The trial court did not err in refusing to direct a verdict for defendant.

Likewise we are satisfied that the jury’s determination of the fact questions in this case is not manifestly against the weight of the evidence and accordingly it may not be disturbed on that ground. Kahn v. James Burton Co., 5 Ill.2d 614.

The defendant claims the verdicts were so excessive as to indicate prejudice and passion on the part of the jury. The argument in support of such proposition fails to point out wherein the evidence as to the injuries sustained by the plaintiffs fails to justify the amounts awarded to each but appears to be based upon the alleged prejudicial conduct of their counsel. The conduct complained of by defendant is that plaintiff sought to inject insurance into the case by pointing out an insurance adjuster sitting in the courtroom and that plaintiffs’ counsel indulged in unfair argument. The record shows that plaintiffs’ counsel inquired of a witness as to the identity of the person who obtained the witness’s signature to a statement offered by the defendant for impeachment purposes and asked if the witness could point out the man in the courtroom. An objection by defendant to this procedure was sustained. We fail to find in the record any mention by plaintiffs’ counsel of the word “insurance” or anything indicating the presence of an insurance adjuster in the courtroom.

The unfair argument complained of was the statement of defendants’ counsel that “some people would not go through that injury for any amount.” An objection to this remark was sustained by the court.

In both instances defendant failed to move to withdraw a juror. By failing to do so defendant waived the right to complain of error in that regard. Wilson v. Hobrock, 344 Ill. App. 147; Lindroth v. Walgreen Co., 338 Ill. App. 364.

In arguing the excessiveness of the verdicts, defendant seems to place considerable reliance upon the fact that remittiturs were entered by two of the plaintiffs.

The rule is that a verdict for personal injuries will not be disturbed by a reviewing court unless so palpably excessive as to indicate the jury acted from some improper motive. Perrine v. Charles T. Bisch & Son, 346 Ill. App. 321; Garner v. Burns Mid-Town, Inc., 346 Ill. App. 162.

The amount of the verdict in the instant case cannot be said to be of such magnitude as to show passion and prejudice on the part of the jury and the filing of the remittiturs indicates nothing to the contrary. In Fitzpatrick v. California & Hawaiian Sugar Refining Corp., Ltd., 309 Ill. App. 215, the court in speaking of the effect of a remittitur said “The fact that there was a remittitur of $2500.00 did not establish the fact that the verdict was the result of passion and prejudice. The practice of filing a remittitur is well established in this State and such a remittitur is not to be taken as a concession that the jury was actuated by passion or prejudice.”

We have examined the evidence pertaining to plaintiffs’ injuries and without detailing the same we deem it sufficient to say that it affords ample support for the verdicts as reduced by the remittiturs.

The trial court did not err in denying the defendants’ motions for a new trial and for judgment notwithstanding the verdicts.

Plaintiffs’ cross-appeal urges error by the trial court in refusing to enter judgment on the original verdicts and in entering an order granting a new trial if remittiturs were not made by plaintiffs Andres and Kinsel. Cross-errors assigned are that the court erred in overruling plaintiffs’ motion for a directed verdict at the close of the evidence and in its rulings upon the admission of certain evidence. Plaintiffs suggest that this court should enter judgment on the cross-appeal for the plaintiffs Andres and Kinsel for the amounts of the original verdicts.

The defendant insists the cross-appeal cannot be maintained since plaintiffs having voluntarily entered remittiturs are not now in a position to complain of error by the trial court in not entering judgment in the amounts of the original verdicts.

Under the uniform and firmly established rule in this State the plaintiff is allowed to remit a part of the verdict in order to obviate the objection that the sum is excessive. The court, however, cannot compel the plaintiff to remit but may give him an election to do so or to have a new trial granted. Albin v. Kinney, 96 Ill. 214; Knight v. Seney, 290 Ill. 11; North Chicago St. R. Co. v. Wrixon, 150 Ill. 532.

The trial court in the order pf which plaintiffs complain overruled defendants’ motion for a new trial provided plaintiffs entered remittiturs in certain amounts, otherwise, the defendants’ motion for a new trial was allowed. Thus the plaintiffs were given the option of remitting a portion of the verdicts or of having the case submitted to another jury. Plaintiffs elected to enter remittiturs. They were not compelled to do so. By entering remittiturs they acquiesced in the action of the trial court and having done so they are now without cause to complain. McCausland v. Wonderly, 56 Ill. 410; National Malleable Castings Co. v. Iroquois Steel & Iron Co., 333 Ill. 588.

If the trial court erred as claimed by plaintiffs, their acquiescence therein now bars their right to maintain their cross-appeal on such ground.

Holding as we do that plaintiffs cannot maintain their cross-appeal, any further consideration of the cross-errors assigned becomes unnecessary.

There appears to be no reversible error in this record and the judgments of the Circuit Court are affirmed.

Affirmed.


author: MR. JUSTICE CROW

text:
    Venis Meyer, Plaintiff-Appellee, v. Gerald Buckman, Defendant-Appellant.
    Gen. No. 10,854.
    Second District.
    October 27, 1955.
    Rehearing denied November 15, 1955.
    Released for publication November 16, 1955.

      E. F. Petersen, of Kankakee, for appellant.
    Dyer and Dyer, of Kankakee, for plaintiff-appellee.
   MR. JUSTICE CROW

delivered the opinion of the court.

This is an appeal from a judgment for $820 in favor of the plaintiff, upon the finding of the lower Court, sitting without a jury, in an action for breach of a contract to permit the plaintiff, a house mover, to move a dwelling house for the defendant.

The complaint alleged, in substance, that on or about January 27, 1953, the plaintiff and defendant entered into an agreement, partly oral and partly in writing, that the plaintiff would move a dwelling house owned by the defendant from its location on South Alma Avenue, Kankakee Township, to another location seven blocks away for a consideration of $900, starting January 31, 1953; that on January 29, 1953, the defendant requested the plaintiff to wait two weeks before moving the house, and the plaintiff agreed; that on or before February 5, 1953, the defendant breached the agreement, as modified, by hiring another house mover to move the house, without the consent of the plaintiff, which other house mover completed the moving, thereby preventing the plaintiff from moving the house; and that the plaintiff was at all times on and after February 5,1953, ready, willing and able to move the house.

The defendant’s answer denied most of the material allegations of the complaint, and set forth as an affirmative defense that the contract was illegal, void, and unenforceable because the plaintiff did not have workmen’s compensation insurance, or other security approved by the Industrial Commission, and the plaintiff intended to pursue his occupation in violation of Section 4 (a) and (d) of the Workmen’s Compensation Act, the plaintiff having allegedly told the defendant those circumstances and his intentions. The plaintiff’s reply, so far as presently material, was that he did not have workmen’s compensation insurance at the time of the contract with the defendant, he intended to move the house without obtaining workmen’s compensation insurance, no reference was had between him and the defendant as to other possible security under that Act, and the contract did not contemplate that he pursue, and he did not intend to pursue, his occupation in violation of Section 4 (a) and (d). In addition, the defendant’s further defenses, as developed at the trial, are that the plaintiff’s evidence of anticipated loss of profits was insufficient to justify the judgment, and that the removal of a particular dwelling house constitutes a new venture as to which loss of anticipated profits is not a proper element of damages.

The written contract of January 27,1953, offered and admitted in evidence, is as follows:

“CONTRACT”

“This contract, drawn this 27th day of Jan., in the year of our Lord Nineteen Hundred and 1953, between Gerald Buckman, party of the first part, a resident of the KKK of KKK County of Ill., State of -, and Venis Meyer, Party of the second part, a resident of the Village of Manteno, County of Kankakee, and State of Illinois, and containing the following agreements and considerations:

“Party of the second part agrees to move house, owned by party of the first part, located in KKK, to be delivered on lot owned by party of the first part in KKK.

“For such services, party of the first part agrees to pay party of the second part $900.00.

“Party of the first part agrees to pay $400.00 to the party of the second part for services rendered to date when said house is placed on rollers, and the balance to be paid when the house is delivered on lot owned by party of the first part in KKK.

“Party of the second part agrees to move house from old location to new, the distance of 7 blocks feet,miles for the price of $900.00.

“All wires and Eight of Way taken care of by party of the first part.

(s) Venis Meyer

Witnesses

(s) G-erald Buckman”

The plaintiff was the sole witness on his own behalf, and the defendant was the sole witness on his behalf. The evidence is undisputed that the written contract was entered into and also that the defendant on January 29, 1953, requested the plaintiff, after the contract was signed, to “hold back a week” from moving, which was consented to by the plaintiff, the defendant saying, he would call the plaintiff when he wanted the plaintiff to move it, which the defendant did not do; a little after a week the plaintiff found that one Nesbitt, another house mover, was in the process of moving the house; the defendant gave the plaintiff as an excuse for the requested one week’s delay that the defendant’s partner was trying to sell a hot water system to Nesbitt’s son, the defendant was in a predicament, and when he could get the deal through, he would notify the plaintiff. Either on January 27 or January 29 the plaintiff told the defendant that he hadn’t renewed his workmen’s compensation insurance, but if he needed such he would get it.

The defendant at the outset was informed that the plaintiff would use his sons for help. The two sons were 14 and 17 years of age and in school, except on Saturday and Sunday. The plaintiff testified that in order to move the house three persons would be engaged and about 48 hours would be spent on the job. To move the house down the street would take a truck driver, the plaintiff, and a laborer, which would take one day; that it would take three men one day to set up the house on the new location; and that the two boys could do the amount of work comparable to a skilled man.

The plaintiff further testified that he had been in the house moving business 33 years, moving about 10 houses a year, could move the house with his two old trucks, himself, and the two boys, and estimated the cost of moving at $80, being about $30 for the cost of gas, and about $50 for the breaking of planks and blocks in moving, that being, he said, the usual and customary breakage on the average size house, with no wage expense for the two boys, the plaintiff not paying the boys anything. He stated that the last time he had had men employed was in November 1952; that he did not keep track of depreciation on his equipment; that the trucks were a 1929 International bought in ,1940 for $100, and a Chevrolet bought secondhand in 1936 for about $200; that he would have used certain moving wheels in which he had $100 invested, and about eight jacks his father had left him and he bought some for $3 apiece, the jacks being worth about $3 each; the only other tool he would have used was a sledge hammer; he would have had no certain expense for wear and tear; and he said he would have made an $820 profit on the contract. The defendant says that the plaintiff could not have performed the contract without having been in violation of Section 4 (a) and (d) of the Workmen’s Compensation Act and subject to the penalty provided therein. Those portions of the Act, Ch. 48, Ill. Rev. Stats. 1951, pars. 138.4, subds. (a) and (d) [Jones Ill. Stats. Ann. 143.67, subds. (a), (d)], are as follows, so far as material:

“138.4 Provision to insure payment of compensation —Existing insurance or relief association — Liability of insurance carrier.) Sec. 4. (a) Any employer who shall come within the provisions of Section 3 of this Act, and any other employer who shall elect to provide and pay the compensation provided for in this Act shall:

“ (1) File with the Commission an application for approval as a self-insurer which shall include a current financial statement. Said application and financial statement shall be signed and sworn to by the president or vice-president and secretary or assistant secretary of said employer if it be a corporation, or by all of the partners if it be a co-partnership, or by the owner if it be neither a co-partnership nor a corporation.

“If the sworn application and financial statement of any such employer does not satisfy the Commission of the financial ability of the employer who has filed it, the Commission shall require such employer to,

“(2) Furnish security, indemnity or a bond guaranteeing the payment by the employer of the compensation provided for in this Act, or

“(3) Insure his entire liability to pay such compensation in some insurance carrier authorized, licensed, or permitted to do such insurance business in this State. All policies of such insurance carriers, insuring the payment of compensation under this Act shall cover all the employees and the entire compensation liability of the insured. Any provisions in such policy, or in any endorsement attached thereto, attempting to limit or modify in any way, the liability of the insurance carriers issuing the same shall be wholly void.

“Nothing herein contained shall apply to policies of excess liability carriage secured by employers who have been approved by the Commission as self-insurers, or

“ (4) Make some other provision, satisfactory to the Commission, for the securing of the payment of compensation provided for in this Act, and

“(5) Upon becoming subject to this Act and thereafter as often as the Commission may in writing demand, file with the Commission in form prescribed by it evidence of his compliance with the provision of this section.

“(d) The failure or neglect of an employer to comply with any of the provisions of paragraph (a) of this Section or the failure or refusal of an insurance carrier to comply with any order of the Industrial Commission pursuant to paragraph (c) of this section shall be deemed a misdemeanor punishable by a fine of not less than $100.00 nor more than $500.00 for each day of such refusal or neglect until the same ceases. Bach day of such refusal or neglect shall constitute a separate offense.”

In addition, it may be observed that Section 26 of the Act (Ch. 48, Ill. Rev. Stats. 1951, par. 138.26 [Jones Ill. Stats. Ann. 143.89]) also provides:

“138.26 Penalties.) Sec. 26. Any wilful neglect, refusal or failure to do the things required to be done by any section, clause or provision of this Act, on the part of the persons herein required to do them, or any violation of any of the provisions or requirements hereof, or any attempt to obstruct or interfere with any court officer, or any other person charged with the duty of administering or enforcing the provisions of this Act, shall be deemed a misdemeanor, punishable by a fine of not less than $10.00 nor more than $500.00, at the discretion of the court.”

It is the defendant’s contention that the plaintiff, as a house mover, was engaged in an “extra hazardous” enterprise and hence the provisions of the Act applied automatically to him, as an employer, and his employees, and that the plaintiff’s two minor sons were or would have been employees under the Act. Section 3(1) of the Act (Ch. 48, Ill. Rev. Stats. 1951, par. 138.3 [Jones Ill. Stats. Ann. 143.66]), provides, so far as material:

“138.3 Automatic application of act.) Sec. 3. The provisions of this Act hereinafter following shall apply automatically and without election ... to all employers and all their employees, engaged in any department of the following enterprises or businesses which are declared to be extra hazardous, namely:

“1. The erection, maintaining, removing, remodeling, altering or demolishing of any structure, except as provided in sub-paragraph 8 of this section.”

The first question is whether the Trial Court erred in not holding that the agreement of the parties was illegal, void, and unenforceable, and in not dismissing the complaint for that reason. We think there was no error in that respect.

The alleged defense of “illegality, that an instrument or transaction is either void or voidable in point of law, or cannot be recovered upon by reason of any statute” is an affirmative defense and the burden of proof thereon is on the defendant: Ch. 110, Ill. Rev. Stats. 1953, par. 167 [Jones Ill. Stats. Ann. 104.043]; Scanlon v. Warren (1896), 68 Ill. App. 213; Anderson v. Carlson (1902), 99 Ill. App. 514. And cf: Victor v. Dehmlow (1950), 405 Ill. 249.

We shall assume, for the purposes of this case, and without so deciding, that the house moving business is an “extra hazardous” enterprise or business, that the provisions of the Workmen’s Compensation Act hence apply automatically and without election to all employers and all their employees engaged therein, that the plaintiff had or would have had persons (his minor sons) in service or under a contract of hire, express or implied, oral or written, and hence was or would have been an “employer,” and that his sons were or would have been in his service under a contract of hire, express or implied, oral or written, and hence were or would have been “employees,” all within the meaning of Sections 1 and 3 of the Act (Ch. 48, Ill. Rev. Stats. 1951, pars. 138.1 and 138.3 [Jones Ill. Stats. Ann. 143.64, 143.66]). There may be considerable doubt on one or more of those scores, particularly considering that the burden of proof thereon is, under the circumstances, on the defendant, but in the view we take of the case it is immaterial, and such may be so assumed for this purpose.

There is certainly nothing illegal, per se, about the contract of the parties by which the plaintiff agreed to move the house, and the defendant agreed to pay him a certain sum for doing so. The purpose or object, the promise of each party, and the consideration moving both ways were all perfectly legal. It was not a contract to do an illegal act. Nothing at all is said in the written contract about the Workmen’s Compensation Act. As to the plaintiff’s future performance thereof, although his reply says he intended to move it without obtaining workmen’s compensation insurance, the circumstances that no reference was evidently had in the parties’ conversations to other possible security under the Act, that the plaintiff says he did not intend to pursue his occupation in violation of Section 4 (a) and (d), and the defendant’s own testimony that the plaintiff told him that if he needed workmen’s compensation insurance he would get it, all leave in some considerable doubt what the plaintiff’s intentions were in that respect as to the future performance of the contract, and, the burden of proof being on the defendant on this point, it is not established that the plaintiff in fact intended, in Ms future performance of the contract, to violate Section 4 (a) and (d).

At the time of the making of the contract, January 27, 1953, the plaintiff did not have workmen’s compensation insurance. But such insurance, although undoubtedly the most common method under Section 4 of the Act (Ch. 48, Ill. Rev. Stats. 1951, par. 138.4) for an employer to secure the payment of any compensation under the Act, is, in fact, only one of four different possible alternative methods for doing so, the others being to file an application for approval as a self-insurer, or to furnish security, indemnity, or a bond, or to make some other provision satisfactory to the Commission. That the plaintiff at that time did not have workmen’s compensation insurance does not mean he may not have adopted one of the other alternative methods for securing the payment of any compensation under the Act, and, the burden of proof being on the defendant, and the record being completely silent in tMs regard, we cannot simply assume that the plaintiff had not adopted one of such other alternative methods. Hence, it is not established that at the time of the making of the contract the plaintiff was, in fact, in violation of Section 4 (a) and (d).

Furthermore, even had it been established, and even had the defendant satisfied the burden of proof, that the plaintiff was in violation of Section 4 (a) and (d) at the time of the making of the contract, or that the plaintiff intended in his future performance to violate Section 4 (a) and (d), such does not make the contract itself illegal, void, and unenforceable.

Sections 4 and 26 of the Workmen’s Compensation Act do not expressly provide that a contract made by an employer, such as the plaintiff, with a third person, such as the defendant, shall be illegal, invalid, null, and void, if the employer at the time of the making thereof is in violation of Section 4 or if he intends in Ms future performance thereof to be in violation of Section 4.

Section 4 of the Act does provide in another subparagraph, — (g), in part, that “Any contract ... of employment providing for relief benefit, or insurance or any other device whereby the employee is required to pay any premium or premiums for insurance against the compensation provided for in this Act shall be null and void.” That is the only provision in Section 4 that specifically provides that any contract in violation of the provisions thereof is null and void. The Legislature having specifically so provided as to such contracts of employment, and not having so provided as to other types of contracts such as the one here involved, we can only assume the Legislature meant what it said and necessarily did not intend to provide that other contracts of a different type in violation thereof should be null and void. The enumeration of certain things in a statute implies the exclusion of all other things, expressio unius est exclusio alterius, we cannot read into the statute, by implication, an intent of the Legislature to make some other kind of contract illegal, null, and void when the Legislature, being presumably and evidently cognizant of the problem, has not expressly so provided: People v. Collins (1933), 351 Ill. 551; In re Estate of Tilliski (1945), 390 Ill. 273.

The title of the Workmen’s Compensation Act is “An Act to promote the general welfare of the people of this State by providing compensation for accidental injuries or death suffered in the course of employment within this State, and without this State where the contract of employment is made within this State; providing for the enforcement and administering thereof, and a penalty for its violation, and repealing an Act therein named” (Laws, 1951, p. 1060). The title would indicate that its basic object is to provide compensation for accidental injuries or death suffered in the course of employment, not to regulate the contractual relations between an employer and some third party; and the fact that, by the title, the enforcement and administering of the Act are provided for in the Act as well as a penalty for its violation, is persuasive at the outset that the Act and only the Act is to be looked to to determine the method or methods of enforcement thereof and that for any violation thereof it is the penalty or penalties provided therein and only the penalty or penalties so provided therein that are to be applied.

The essential general purpose of the Act is to substitute an entirely new system of rights, remedies, and procedure for all previously existing common-law or statutory rights and liabilities between employers and employees for accidental injuries or death arising out of and in the course of employments operating under and subject to the Act: Angerstein, Ill. Work. Comp., Vol. 1, p. 23; it was enacted primarily for the protection of the employee: Henson Robinson Co. v. Industrial Commission (1944), 386 Ill. 232; it is designed to afford employees and their dependents a measure of financial protection, and the basis upon which its validity has been sustained is as a regulation of the master-servant relation: Grasse v. Dealer’s Transport Co. (1952), 412 Ill. 179. To say that it was impliedly intended to regulate the contractual relations between an employer and some third party and to determine the legality or illegality of their contract, is, in the absence of some express provision of the Act to that effect, foreign to the essential, general, primary purpose of the Act, and not consonant with its fundamental basis as a regulation of the master-servant relation.

The subject heading of Section 4 of the Act (Ch. 48, Ill. Rev. Stats. 1951, par. 138.4) is “provision to insure payment of compensation — existing insurance or relief association — liability of insurance carrier.” Consonant with its subject heading, the essential purpose of subsections (a) and (d) thereof is to enable the Industrial Commission to require all employers under the Act to make suitable and adequate provisions for the payment of compensation in all cases of accidental injury or death of their employees; the ultimate purpose is to provide financial protection for the payment of compensation which may become due employees or their dependents; subsection (d) makes a misdemeanor the failure or neglect of an employer to comply with the provisions of subsection (a) and provides criminal penalties therefor: Angerstein, Ill. Work. Comp., Vol. 2, pp. 2, 13. The subject heading and essential purpose of the Section do not embrace, by implication, the regulation of the contractual relations between an employer and a third party as are here concerned and the legality or illegality of their contract.

The subject heading of Section 26 of the Act (Ch. 48, Ill. Rev. Stats. 1951, par. 138.26) is “penalties.” Consonant with its subject heading, the criminal penalties provided therein, and the misdemeanors thereby created are distinct and separate from the misdemeanors and penalties provided under Section 4, above: Angerstein, Ill. Work. Comp., Vol. 3, p. 157.

Having so expressly provided in Sections 4 (d) and 26 for the consequences of an employer’s failure, neglect, or refusal to comply with the provisions of Section 4 (a), as well as other parts of the Act, having made such a criminal misdemeanor and provided criminal penalties, and not having expressly provided for any further possible consequence or penalty by way of making the employer’s contract with a third party illegal, null, and void, the Legislature, again, must be assumed to have meant what it said and necessarily did not intend to provide that such contracts should be illegal, null and void. Again, the enumeration of certain things in the statute implies the exclusion of all other things.

In Edgerton v. Preston (1884), 15 Ill. App. 23, the plaintiffs, partners, doing business under the name of “Garden City Yeneer Mills” sued the defendant bankers to recover the proceeds of certain checks drawn by a debtor of the firm on the bankers, payable to the plaintiffs’ order under that firm name, which had been allegedly improperly endorsed by an employee of the plaintiffs who had embezzled the money. A judgment for the defendants was reversed and remanded. Among other things, the defendants claimed the plaintiffs were doing business under an assumed corporate name without being incorporated, in violation of Section 220 of the then Criminal Code, which provided a certain fine for violations thereof. The Court held, so far as material, that such was no defense, and said, pp. 26-27:

“. . . Nor do we think that, even if it should be found there had been a violation of the statute, the consequences of such violation could be extended beyond the infliction of the penalty therein prescribed. The statute does not provide that contracts made by persons thus offending shall be invalid, but only renders such persons liable to pay a fine of not less than ten dollars nor more than two hundred dollars, and a like sum for each day they shall continue to offend.”

In People v. Rose (1905), 219 Ill. 46, the petitioners sought an original writ of mandamus against the defendant Secretary of State to compel issuance of a certificate of incorporation to a new “United States Express Company,” despite the fact there was and had been for years an old New York joint stock company by the same name. Among other things, the petitioners urged that the old company, if not incorporated, had no right to use the name “United States Express Company” because the Criminal Code made it an offense to assume and use a corporate name without being incorporated, and imposed certain fines for doing so. The Court held that made no difference, denied the petition, and said, p. 63:

“It is furthermore to be observed that this criminal statute does not make contracts, made by persons guilty of the offense prohibited, invalid, but merely provides that such persons shall be liable to pay a certain fine. It would appear, therefore, that a violation of the statute can be attended with no other consequences than merely the infliction of the penalty therein prescribed. (Edgerton v. Preston, supra.)

In Grody v. Scalone (1950), 408 Ill. 61, the plaintiff, an individual doing business as Modern Furnace Company, sued the defendant for a balance allegedly due on a contract for the installation of a furnace. Among other things, the defendant’s answer, in what was called Count 2, set up an alleged special affirmative defense. The plaintiff’s motion to strike that defense was denied. The plaintiff replied. The defendant moved for judgment on the pleadings, which was allowed as to that special defense in Count 2. The special defense was that the plaintiff was in business under an assumed name, he had failed to register the same and file the necessary certificate under the assumed name act (Ch. 96, Ill. Rev. Stats. 1947, pars. 4-8 [Jones Ill. Stats. Ann. 37.414(1)-37.414(5)]), which provided penalties of a fine, or imprisonment, or both, for violations thereof, the contract was therefore against public policy, the plaintiff was unlawfully in business, and could not legally enforce the contract. The Court held to the contrary, and reversed and remanded with directions to sustain the plaintiff’s motion to strike the special defense. The Court said, in part, pp. 64-65, 65-66, 66, and 67—

“The question presented to us is to determine the intent of the legislature as to whether or not it intended, in addition to subjecting the plaintiff here to an expressed penalty, to impose the additional and greater penalty of refusing him any relief on his contract entered into without compliance with the statute. In cases of this character, whatever decisions to the contrary may be found, there is no inflexible rule of arbitrary application for the determination of the effect by implication of the prohibitory statute. The question presented is one of legislative intent to be gathered from the language of the statute read in the light of the circumstances with which it deals, with such considerations of public policy as may be involved in the conflicting claims of construction.

“A reading of this act as to its prohibition does not specifically set out that such transaction as is now before us is prohibited. It only fixes, a penalty for persons conducting a business in violation of the act. To deny recovery in a case, such as the instant case, would be affording a means by which a person having received a benefit from another would be enabled to retain it without compensation. A careful examination of the statute before us presents two pertinent facts: (1) That it expressly imposes a penalty for nonobservance in the form of a fine or imprisonment; and, (2) that no further penalty or consequence is attached. This, it would seem, is a significant indication of a purpose that the penalty expressed in that particular kind of case should be exclusive.

“The act pertaining to assumed business names makes no restriction pertaining to suits or recovery, but specifically provides a penalty for conducting or transacting a business in this State under an assumed name in violation of the statute.

“The appellee cites the case of Colbert v. Ashland Construction Co. 176 Va. 500, 11 S.E.2d 612, along with several other foreign cases in support of the opposite Rule. We are of the opinion, however, the rule, as above pointed out, is the one properly to be followed unless there should be a provision which specifically provides for additional penalty. This also follows the rule of strict construction of such statute.”

The defendant says Grody v. Scalone deals only with the assumed name statute, — in that case the contract was executed, whereas here it is executory, — and it does not refer to Douthart v. Congdon (1902), 197 Ill. 349, a case urged by the defendant. Necessarily Grody v. Sealone deals only with the assumed name statute,— that is what was before the Court, — but its principles and language are very closely analogous to the case at bar; that the contract there was executed, whereas here it is executory, does not seem to make any difference so far as the principles are concerned, although such might have made the plaintiff’s so-called “fireside equities” a little stronger there than here; and we perceive no- particular significance in its not referring to Douthart v. Congdon. Grody v. Scalone seems to be the latest expression of the Supreme Court in this general field and we must be guided thereby.

We do not believe the consequences of a violation or intended violation of Section 4 by. the plaintiff, if he so did or so intended, extend beyond the infliction of the criminal penalties prescribed by the Act, or that the Legislature, by implication, intended, in addition to the criminal penalties, to impose the additional and possibly greater penalty of determining his contract with the third party to be illegal, null and void. The statute imposes no restriction or inhibition on the plaintiff pertaining to suits or recovery. If he violated or intended to violate the Act, the criminal penalties are exclusive. Had the Legislature intended otherwise it would have, and could readily have, said so.

The defendant refers us to four cases on this matter,—Union Nat. Bank v. Louisville, N. A. & C. R. Co. (1893), 145 Ill. 208; Frankel v. Allied Mills, Inc. (1938), 369 Ill. 578; Douthart v. Congdon (1902), 197 Ill. 349; Simpson v. Adkins (1944), 386 Ill. 64.

We do not believe our views to be at variance with those cases. None of them involved the Workmen’s Compensation Act or a statute closely analogous thereto in its provisions. In each case the contracts or acts involved,—whether (Union Nat. Bank v. Louisville, N. A. & C. R. Co.) an agreement for excessive interest, or (Frankel v. Allied Mills, Inc.) an unlicensed real estate broker’s act, or (Douthart v. Congdon) an unlicensed grain broker’s business, or (Simpson v. Adkins) an oil and gas lease requiring the obstruction of a public highway and the creation of a public nuisance, — were contracts or acts expressly in and of themselves contrary to a statute or ordinance, and constituted the specific doing of or contracting to do a specifically illegal thing. Further, in Union Nat. Bank v. Louisville, N. A. & C. R. Co. the statutes forfeited the entire interest, where there was excessive interest, and thereby, in effect, specifically made the agreement for such void; and in Frankel v. Allied Mills, Inc. the statute specifically forbade suit on the agreement for a commission, thereby, in effect, making it void or voidable, and the New York cases had already previously so held. The contract in the present case is a contract to move a house and to be paid therefor. That is not a contract expressly in and of itself contrary to the present statute, does not constitute the specific doing of or contracting to do some specifically illegal thing, and is not an illegal act. The statute does not void the contract. It does not forbid suit on it. The contract does not appear to be subversive of any public interest which the law cherishes. The consideration is not illegal. Its purpose is not the doing of an unlawful act.

The remaining question has to do with the damages, and as to that we also think there was no error. A recovery may be had, in a proper case, for prospective profits when there are any criteria by which the probable profits can be estimated with reasonable certainty; absolute certainty as to the amount of loss or damages in such cases may not, ordinarily, be attainable, but that is not required to justify recovery; all the law requires is that it be approximated by competent proof; that proof of the exact amount of loss may be impossible does not justify refusing compensation; in cases of this character all the law requires is that the evidence shall, with a fair degree of probability, tend to establish a basis for the assessment of damages: Barnett v. Caldwell Furniture Co. (1917), 277 Ill. 286. The measure of damages where one engaged in the performance of a contract of this type is wrongfully prevented by the other party from completing it is the difference shown by the evidence between the contract price and what it would have cost the plaintiff to have done and completed the work according to the terms of the contract: Hayes v. Wagner (1906), 220 Ill. 256; Ryan v. Miller (1893), 52 Ill. App. 191, 153 Ill. 138; Kingman & Co. v. Hanna Wagon Co. (1898), 176 Ill. 545. If the defendant contended that at the time the contract was breached by him it would have cost the plaintiff more to complete it than the plaintiff had estimated would be the cost, it was incumbent on the defendant to show it: Central Trust Co. v. John M. Smyth Merchandise Co. (1921), 222 Ill. App. 347. Where the president of a plaintiff corporation, who has knowledge of the facts, testifies that its costs were so many dollars and its profit was so many dollars per unit, which testimony stands alone and undisputed, the defendant presenting no evidence that the costs and profit contended for by the plaintiff were not correct or unfair or unreasonable, that is sufficient to sustain a recovery by the plaintiff for such loss of profits; the burden of proving the damages were not correct or unfair was on the defendant who had breached the contract: Capitol Paper Box, Inc. v. Belding Hosiery Mills, Inc. (1953), 350 Ill. App. 68.

The contract price here, which the plaintiff was to receive, was definite, — $900. As to what it would have cost the plaintiff to have done and completed the work according to the terms of the contract, the only evidence in the record is the plaintiff’s testimony that he’d been in the business 33 years, he moved about 10 houses a year, he could move this house with his two old trucks, himself, and his two sons, there would be no wage expense, the cost of gas would be about $30, the cost of breakage of planks and blocks would be about $50, the usual breakage on an average size house, he did not keep track of depreciation on his equipment, he would have had no certain expense for wear and tear, and he would have made an $820 profit. The only equipment or tools involved evidently would have been a 1929 International truck (24 years old in 1953) worth $100 in 1940, a secondhand Chevrolet (at least 17 years old in 1953) worth $200 in 1936, $100 worth of moving wheels, a few jacks worth perhaps $24, and a sledge hammer. Although depreciation on such equipment fairly attributable to this particular contract might theoretically, we assume, have been a proper element of cost to the plaintiff, he said he would have had no certain expense for wear and tear, he did not keep track of depreciation, and in any event that theoretical possible element, under the circumstances, would obviously have been so negligible as to be of no legal significance or consequence, — lex non curat de minimus.

Under the circumstances we think there are sufficient criteria by which the probable profits could be estimated with reasonable certainty; absolute certainty was not necessary; it has been approximated by competent proof; and the evidence does, with a fair degree of probability, tend to establish a basis for the assessment of damages. If the defendant felt that it would have cost the plaintiff more to complete the contract than the plaintiff estimated, it was incumbent on the defendant to go forward with some evidence and endeavor to prove it, which he did not do. The defendant, who had breached the contract, having presented no evidence’ that the costs and profit contended for and testified to by the plaintiff were not correct or unfair or unreasonable, the plaintiff’s testimony is sufficient to sustain a recovery of the estimated loss of profits.

That the plaintiff’s plank breakage element of cost had on somé other particular occasion been more than $50 is of no importance if, as the evidence shows, $50 is the usual breakage on an average size house; whether an $820 profit on a $900 contract was usual and customary in the plaintiff’s business is beside the point,- — -the question is what was his estimated profit on this particular contract under these particular circumstances, — and there is no proof to the contrary; the plaintiff, though an interested witness, was an entirely competent witness, — and the determination of the credibility of the witnesses and weight of the evidence was for the Trial Court, — his testimony is corroborated, if that were necessary, by his statement as to the particular breakdown of costs and by the circumstances; though necessarily almost any contract of this type and any estimate of profits thereunder may be to some degree uncertain, since the actual performance of the contract by the plaintiff is prevented by the defendant, the present case is not within the inhibitions of the precedents against the recovery of alleged damages or profits of a remote, speculative or contingent nature incapable of being reasonably correctly ascertained; although the defendant argues as to certain possible contingencies which might conceivably enter into whether a profit or loss might occur on such a contract he has produced no evidence on those scores; and this is not a case of a so-called “new venture” as to which it may be an estimated loss of profits would be improper, because of uncertainty and speculation and inability to prove that a profit would have been made, ■ — -this contract was a part of the plaintiff’s regular, established business, as to which he’d had considerable experience, the gross amount he was to receive, $900, was absolutely definite, and his costs on this particular contract, $80, and estimated profit, $820, are established with reasonable certainty under the circumstances.

We’ve read the defendant’s Illinois cases as to the damages question, — Podlaski v. Bender (1909), 150 Ill. App. 312, Salaban v. East St. Louis & Interurban Water Co. (1936), 284 Ill. App. 358, Bauwens v. Goethals (1914), 187 Ill. App. 563, Favar v. Riverview Park (1909), 144 Ill. App. 86, and Chicago Coliseum Club v. Dempsey (1932), 265 Ill. App. 542,—and they are all so different in their facts from the present case that for that and other reasons we do not believe them to be in point here.

The judgment should be, and accordingly is, affirmed.

Affirmed.

DOVE, P. J. and EOVALDI, J., concur.


author: MR. JUSTICE EOVALDI

text:
    Powers McGuire, Plaintiff-Appellant, v. James S. Purcell, as Building Commissioner of Village of Lakewood, McHenry County, Illinois, Defendants-Appellees. James S. Purcell, Cross-Plaintiff-Appellee, v. Powers McGuire, Cross-Defendant-Appellant, and Village of Lakewood, McHenry County, Cross-Defendant-Appellee. Village of Lakewood, Cross-Plaintiff-Appellee, v. Powers McGuire, Cross-Defendant-Appellant, and James S. Purcell, Cross-Defendant-Appellee.
    Gen. No. 10,865.
    Second District.
    October 28, 1955.
    Released for publication November 16, 1955.

      Powers McGuire, of Chicago, pro se, plaintiff-appellant, cross-defendant-appellant.
    David B. Maloney, and Howard B. Bryant, both of Chicago, for defendants and cross-plaintiffs-appellees.
   MR. JUSTICE EOVALDI

delivered the opinion of the court.

Powers McGuire, plaintiff-appellant, cross-defendant-appellant, appeals from the order of court resolving the issues adversely to him, dismissing his complaint for declaratory judgment and injunction, and permanently restraining him from placing, constructing, or maintaining a sign on his property as prayed in the cross-complaints.

Plaintiff, an attorney, and his wife, Anne (who is not a party to this proceeding), purchased the property upon which he now resides in the Country Club Addition in the Village of Lakewood, McHenry County, Illinois, in June, 1951. The deed restrictions on the property purchased by the plaintiff, and the zoning ordinance of said Village, limited the use of the property to single family, private residence use, and further provided that no lot, or part of lot, should ever be used for any other use than private residence and that “no bill board or other advertising sign or device shall ever be erected in said additions, or placed or painted on any building therein.” The only exception to this prohibition is in the zoning ordinance which provides that doctors, dentists, or similar professions may place a name plate upon their residence with a designation of their profession, of a size not to exceed one square foot.

The plaintiff built a home in which he set aside one room as an office, and in the parkway adjoining his property constructed two poles, on top of each of which was placed a light, and from one pole was extended a sign on which appeared the name of

“powers McGuire LAWYER AND POLICE MAGISTRATE.”

The sign was more than one square foot in size. The plaintiff, who is Police Magistrate for the Village, advised the Village Board that he would refuse to comply with the zoning ordinance and remove his sign. He was thereupon arrested for violation of the zoning ordinance prohibiting advertising.

It is plaintiff’s contention that the ordinance is unreasonable, arbitrary and void; that a sign bearing the plaintiff’s name and the wording “lawyer,” “attorney,” or the like, cannot reasonably be construed to mean “advertising signs” within the meaning of that term in the ordinance; and further, that there is a widespread custom in the village of erecting signs on lawns, in the parkway, on mailboxes, or on illuminated driveway pillars bearing the name of the occupant and his business or profession.

Section IV, paragraph (b), of the ordinance provides :

“Advertising signs, except name plates on buildings and sale or rent signs, none of which shall exceed twelve square feet in area, are specifically prohibited.”

Paragraph (c), sub-paragraph (12) of said Section IV provides:

“It shall be permissible to use residences in “A” Residence District for home occupation, including the office of a physician, dentist, or similar profession, but engaged in by occupants of a dwelling and not involving a conduct of a business upon the premises. Ho name plate exceeding one (1) square foot in area shall be permitted on any dwelling and such name plate shall contain only the name and occupation of an occupant of the premises.”

At the trial defendants introduced in evidence a certified copy of the deed restrictions over the property in question, of record since 1924. Those deed restrictions are as follows:

“Ho lot in said additions, or part of lot therein except as hereinafter provided, shall ever be used or permitted by the owner or occupant thereof to be used, by any person, for other than private residence purposes. . . .

“Ho bill board or other advertising sign or device shall ever be erected in said additions or placed or painted on any building therein, except as hereinafter provided and except as allowed in the business section. Ho refreshment stands or amusement enterprises, will be permitted on any lot platted in these additions, except as hereinafter provided for, in business sections and except that the maker or makers of these plats, their successors or assigns, may grant such privileges on community parks or beaches.”

The ordinance in question and the deed restrictions are comprehensive, and were intended to give persons who purchase lots and erect homes the right to have the properties limited to use for residential purposes and to prohibit the deterioration of a residential neighborhood which so often occurs when signs, businesses and other like uses are imposed on properties in such areas.

It is not questioned that the area involved is almost exclusively residential in character. Our Supreme Court in the late case of Dunlap v. City of Woodstock, 405 Ill. 410, at pp. 414—415, states:

“It has always been recognized in this State that constitutional guarantees of private rights are subject to the qualification that they may be cut down by governmental agencies acting under the police power of the State. . . .

“The evidence discloses that the value of appellants’ property would be increased if they were granted a permit to erect a grocery store thereon, but that the value of other property in the neighborhood would be decreased thereby; and that the erection of a business building in an area now exclusively zoned for residential purposes would tend to diminish the values of the properties in the adjoining area. Thus, the entire neighborhood would lose and the city would suffer by the resulting loss in taxable value. The prevention of such a loss is one of the specific purposes for which the zoning power is granted, and is directly related to public welfare. . . .

“Where there is room for a fair difference of opinion concerning the reasonableness of a particular ordinance, we will not overthrow the considered findings of an impartial body which is presumably well equipped to decide the various issues involved. Village of Western Springs v. Bernhagen, 326 Ill. 100.”

It is argued by appellant that residents have long erected signs with their names and occupations on their property other than on their building; that there had been a sign in front of Mr. Wallace’s property containing the words “Wallace, Beal Estate” and “Police Magistrate;” and that the evidence shows that there is no public lighting system and no numbering system for the houses; and that his sign was consistent with the esthetic appearance and development of the community and that a professional name plate not exceeding one square foot in area actually affixed to a dwelling or building would neither be visible nor legible at night.

Much of appellant’s evidence with reference to the witness, Wallace, was heard subject to objection. On cross-examination Wallace admitted that the Village required him to remove his office and admitted further that the attorney for the Village wrote him letters concerning the removal of the office. Hubert A. Curtiss, an officer of the Property Owners Association, and a former Village Trustee, testified that he resided in Lakewood for ten years last past and that at no time during the ten years prior to the hearing of the case did Wallace have his sign in the parkway adjoining his home. Another witness for defendants, Edith M. Eldred, a resident of Lakewood for more than 30 years, testified that the sign was near Wallace’s house for a couple of years and that he had not had his sign in front of his house for at least 15 years. Another witness, Columbus Behan, a Village Trustee, testified that he bought his home in 1940 or 1941 from Wallace and that there was no sign in the parkway adjoining Wallace’s home at that time and that there had been no sign since that time.

When testimony is contradictory, it is well established that, in a hearing before the court without a jury, whether at law or in equity, the determination of the credibility of witnesses and the weight to be afforded their testimony are matters for the trial court, and its findings will not be disturbed unless they are manifestly against the weight of the evidence. Eleopoulos v. City of Chicago, 3 Ill.2d 247 at page 253; Wynekoop v. Wynekoop, 407 Ill. 219; Schnepper v. Ashlock, 404 Ill. 417; Sohio Corp. v. Gudder, 375 Ill. 622; Flynn v. Troesch, 373 Ill. 275; Dalbey v. Hayes, 267 Ill. 521; Zimmerman v. Zimmerman, 242 Ill. 552; Beall v. Dingman, 227 Ill. 294; Manley v. Geng, 7 Ill.App.2d 6, 128 N.E.2d 641; Glasser v. Essaness Theatres Corp., 346 Ill. App. 72.

In the case of Village of Riverside v. Kuhne, 335 Ill. App. 547, defendant placed a pair of signs on a tree in his yard, the upper sign containing the words “Real Estate” in large letters, and the lower the name “Eugen Kuhne” with “Exclusive Broker” written under it. The Court held this to he a violation of the ordinance.

To defendant’s contention that a number of building contractors, a newspaperman, and others used desks and telephones in their homes for business purposes, the court said, at pages 561-562:

“It goes without saying, of course, that anyone may keep his account books in his home, his truck in his garage, may talk to anyone in or from his home upon any subject, but such a use is in no sense comparable to the continuous carrying on of a recognized business on property involving repeated contacts with customers or accompanied by advertising signs inviting the public to come to the office to transact business. Moreover, proof that there were other violations of the ordinance, if the evidence sustained that conclusion, would not excuse defendant’s violation.”

In Thomas Cusack Co. v. City of Chicago, 267 Ill. 344, our Supreme Court, in sustaining the validity of an ordinance, held that ordinances regulating the erection and maintenance of billboards in residence districts were not unreasonable or oppressive, and on appeal to the Supreme Court of the United States its judgment was affirmed. 242 U. S. 526 at pp. 529-530, 61 L. Ed. 472. In Town of Lexington v. Govenar, 295 Mass. 31, 3 N.E.2d 19, the Supreme Judicial Court of Massachusetts had occasion to construe an ordinance in connection with a sign which had been erected by an attorney on a tree in front of his house; the sign was about ten inches by twenty inches, and it was attached to the tree by an iron bracket, about five feet from his front steps, on which were printed on both sides the following words: “David H. Govenar, Attorney at Law, Notary public.” That court held that an attorney’s sign on Ms residence property for advertising purposes violated the zoning law excluding professional offices from designated districts entitling the municipality to enjoin maintenance of the sign, and ordered appellant to remove the sign.

This Court is of the opinion that the sign in this case to which objection is made is an advertising sign and that the erection of same by appellant on his house lot is a violation of the zoning law and of the restrictions in the deeds. The final decree dismissing appellant’s complaint for declaratory judgment and injunction, and granting appellees a permanent injunction restraining appellant from placing, constructing or maintaining a sign on his property as prayed in the cross-complaints, must be affirmed.

Decree affirmed.

DOVE, P. J., concurs.


author: MR. JUSTICE BURKE

text:
    George J. Priester, d/b/a Priester Aviation Service, Appellant, v. Hubert G. Judkins, Appellee.
    Gen. No. 46,614.
    First District, First Division.
    October 31, 1955.
    Released for publication November 16, 1955.

      Joseph I. Bulger, of Chicago, for appellant.
    A. R. Basile, of Oak Park, for appellee; Prank J. Sislca, Jr., of Broadview, of counsel.
   MR. JUSTICE BURKE

delivered the opinion of the court.

George J. Priester sued Hubert G. Judkins for $302.50 damages to a rented airplane and $20.96 as rental therefor. A trial without a jury resulted in a judgment in favor of the plaintiff for $20.96. Plaintiff, appealing, asks that judgment he given in his favor for $323.46.

The plaintiff operates an airplane service and hangar at the Elmhurst airport. On June 29, 1953 the defendant, a licensed pilot, rented a Piper Clipper Airplane from the plaintiff. He intended to fly it to Kewanee, Illinois, and return. Defendant had informed his cousin, an optometrist living near Lafayette, Illinois, that he would circle his house as a signal of arrival before landing at the Kewanee airport, where he and his passengers would be picked up by the cousin in an automobile. Lafayette is about 10 miles south of the Kewanee airport. Defendant was accompanied in the airplane by his oldest son and his brother, who acted as navigator. There was a preflight check of the airplane by the defendant and a servant of the plaintiff. It carried 18 gallons of gas in the wingtank and 12 gallons in the fuselage. The weather was clear but damp and a little hazy. The trip to his cousin’s house took about an hour.

Defendant testified that as he started circling the house the engine ran “very rough”; that he “gunned” it twice on the last circuit; that he could not get proper revolutions per minute out of it to maintain flight; and that he checked the fields in the vicinity for the purpose of landing. The field he selected was 1200 feet in length and was bisected by a ditch. There was a fence at the end of the field. He established his pattern and glide. He touched down at the ditch and thereafter had 600 feet in which to stop the plane. He could not get any action out of the brakes because of wet grass and he was traveling pretty fast. He knew that he would hit the fence and intentionally ground-looped the airplane. He and his passengers got out of the airplane. In a few minutes his cousin came over, picked them up in his automobile and took them to his house. Defendant called plaintiff on the telephone and told him of the occurrence. That afternoon two employees of the plaintiff arrived at the field. They found that the airplane had skidded sideways and up against a fence and that the landing gear, lower part of the fuselage and two wing struts on one wing were damaged. The employees, who are experienced pilots, examined the engine and it checked out “perfectly satisfactory.” The engine operated normally. After repairing the landing gear and fuselage, one of the employees flew the plane off the field and back to the Elmhurst airport. After the plane was brought back and repaired it was flown 400 or 500 hours and there was no “trouble” with it. Plaintiff established that the reasonable charges for repairing the damaged airplane were $302.50 and that the reasonable charge for the use of the plane was $20.96.

The rule relating to the burden of proof in bailment cases is stated in Miles v. International Hotel Co., 289 Ill. 320, as follows (327):

“The weight of modern authority holds the rule to be that where the bailor has shown that the goods were received in good condition by the bailee and were not returned to the bailor on demand the bailor has made out a case of prima facie negligence against the bailee, and the bailee must show that the loss or damage was caused without his fault. [Citing cases.] The effect of this rule is, not to shift the burden of proof from plaintiff to the defendant but simply the burden of proceeding. The bailor must in all instances prove that the bailee was negligent, but when she shows that the goods which she intrusted to the bailee’s care were not delivered upon demand she has made out a prima facie case or created a presumption of negligence which the bailee may overcome by offering evidence to show that it was not negligent, and if it produces such evidence, the bailor, in order to make out her case, must show that the bailee was, in fact, negligent and that its negligence caused the loss or contributed thereto. It was held in Sanborn v. Kimball, 106 Me. 355, that the bailee has sufficiently exonerated himself from liability when he has shown that the cause of the loss was a mystery.”

See also Lederer v. Railway Terminal & Warehouse Co., 346 Ill. 140; Hollingshead Motors Co. v. Crogan, 336 Ill. App. 423, 430.

The defendant had no satisfactory explanation for his actions. His brother and son accompanied him in the airplane. Neither was called as a witness to corroborate his testimony. The motor was functioning perfectly when it left the Elmhurst airport and it functioned perfectly when tested on the field after the mishap. It was flown back to Elmhurst and has since flown many hours without incident. Defendant’s account is in direct conflict with the testimony of the experts, including his own. All testified that at 1600 r.p.m., the reduced speed, the aircraft was in sustained flight. Defendant said the plane made a landing and rolled more than 600 feet down the field, that it was going so fast at the end of the roll that he knew he was going to hit the fence headon, and that at the last minute he made an intentional ground loop and hit it sidewise. Normally, that plane can be stopped within 600 feet after touching down. The evidence shows that there were 18 gallons of gas in the wingtank when the plane took off from the Elmhurst airport and that after the landing in the field near Lafayette this tank was empty. The engine on this aircraft consumes between 6 and 7 gallons of gas per hour. The consumption of gas indicates that he had flown the plane approximately 2½ hours. The flight from Elmhurst took 1 hour. There was no explanation as to what became of the remainder of the fuel. The unexplained failure to control the plane after touching ground shows that the defendant was negligent in operating the airplane and that his negligence caused the damage. Ebbert v. Metropolitan Life Ins. Co., 369 Ill. 306, 310, 311.

The judgment of the Circuit Court of Cook County is reversed and the cause is remanded with directions to enter judgment in favor of plaintiff and against defendant for $323.46.

Judgment reversed and cause remanded with directions.

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


text:
    Commercial Delivery Service, Inc., Appellee, v. Cornelius J. Medema et al., and John B. Brenza, as County Treasurer of Cook County, Illinois, Defendants. Appeal of Cornelius J. Medema et al., Appellants.
    Gen. No. 46,643.
    First District, First Division.
    October 31, 1955.
    Released for publication November 16, 1955.

      Fischer, Bosgraf, and Mackenzie, of Chicago, for appellants; Leonard Bosgraf, and Kellam Foster, both of Chicago, of counsel.

      Melvin E. Levinson, and Lonis Rosenfeld, both of Chicago, for appellee; Daniel L. Abrams, of Chicago, of counsel.
   MR. JUSTICE BURKE

delivered the opinion of the court.

On March 24, 1953, a condemnation proceeding was instituted by the City of Chicago in Trust for the use of Schools to ascertain just compensation to the owners of or parties interested in certain land and the improvements thereon. The land sought to be condemned included parcel 17, then owned in fee simple by Cornelius and Winifred Medema and William and Henrietta Bandstra, is commonly known as 2933-43 South Calumet Avenue, and is at the southeast corner of Calumet Avenue and 29th Place, Chicago. It has a frontage of 125 feet on Calumet Avenue and runs to a depth of 174 feet. A brick building occupied all except the east 55 feet of the parcel. The east 55 foot space was used for parking. The building contained 14,850 square feet on the first floor and about 400 square feet of balcony devoted to offices and washrooms. On May 3, 1952, the owners delivered to Commercial Delivery Service, Inc., a lease of the premises solely for the operation of a general delivery, trucking and cartage service, for 5 years from May 5, 1952, to May 5, 1957, at $750 per month rental until May 5, 1954, and $850 per month thereafter with the privilege of renewal for 5 years at $850 per month.

The owners and the lessee entered their separate appearances in the condemnation case. On June 15, 1953, a jury having been sworn to ascertain and report the just compensation to be made to the “owner or owners of and party or parties interested” in the premises sought to be taken, found the just compensation to the owner or owners of or party or parties interested in parcel 17 to be $82,500. Thereupon the court entered judgment which ordered that the petitioner within 90 days pay to the County Treasurer “for the benefit of the owner or owners of and party or parties interested in said real property” the amount found by the jury, plus costs, as full compensation. The judgment order further stated that upon proof to the court that payment “has been made to the County Treasurer” the petitioner may enter upon the land and use the same for the purpose stated in the petition. The amount of the condemnation judgment was deposited with the County Treasurer on the day of the judgment.

The lessee, hereinafter called the plaintiff, filed a complaint and an amended complaint in chancery against the owners, hereinafter called the defendants. Plaintiff claimed the value of the leasehold estate and the value of certain items which had been acquired by the condemnor. It prayed for a hearing to determine the rights of the parties to the condemnation award which, it asserted, was held in trust by the County Treasurer for the parties interested therein. Defendants’ answer stated that the judgment in the condemnation suit was entered pursuant to agreement between petitioner therein and the defendants (owners) as compensation to defendants for the property after the plaintiff, who was a defendant in that proceeding and represented by counsel, was advised by the petitioner that it was entitled to nothing, and that plaintiff' had an adequate remedy at law. The master in chancery to whom the case was referred found the value of a loading dock to be $1,057.04 and the value of the leasehold to be $6,800, a total of $7,857.04, and recommended that the County Treasurer be required to pay the plaintiff that amount. Exceptions to the report were overruled and the chancellor entered a decree in accordance with the recommendation. Defendants, appealing, ask that the decree be reversed and that the complaint be dismissed for want of equity.

Defendants maintain that plaintiff had an adequate remedy at law in the condemnation proceeding, failed to avail itself of that remedy therein and has shown no excuse for its failure to do so. Defendants state that the judgment for $82,500 in the condemnation proceeding was entered pursuant to negotiations and agreement between them and the condemnor solely on behalf of the defendants, and that in that proceeding plaintiff through its counsel negotiated with the condemnor, and was advised by the condemnor that plaintiff was entitled to nothing. In Lambert v. Griffin, 257 Ill. 152, the court said (158):

“Where it becomes necessary for the jury to assess damages for separate interests in condemnation proceedings, it is the duty of the jury to first fix the fair cash market value of the entire property as between the petitioner and all the defendants, and then to divide the same according to the respective rights of the defendants.”

In the condemnation proceeding involving the property in the instant case the parties and the court did not follow the practice of fixing the fair cash market value for the entire property as between the petitioner and all the defendants and dividing the amount according to the respective rights of the defendants. The court followed the practice outlined in Section 14 of the Eminent Domain Act (Par. 14, Ch. 47, Ill. Rev. Stat. 1953 [Jones Ill. Stats. Ann. 109.259]) that payment of compensation adjudged may be made to the County Treasurer who shall, on demand, pay the same to the party thereto entitled. The jury made a gross award to all “parties in interest.” No party to the condemnation proceeding requested apportionment of the award in that proceeding. The statute does not make it mandatory that the jury shall apportion the award. In City of Chicago v. Gage, 268 Ill. 232, the court said that if the property is taken for public use the compensation money is deemed a substitute for the property, and a mortgagee or other lien holder has an equitable lien on the fund to the extent of his claim. See also Yellow Cab Co. v. Howard, 243 Ill. App. 263. The parties in the condemnation case were satisfied to have the verdict and judgment in that case recite that the amount to be deposited with the County Treasurer be paid to the owner or owners and to the parties interested in the real estate in order to compensate the owners and the parties interested for the taking of the real estate. The judgment in that case contemplated that any dispute about the apportionment of the amount deposited be settled by further proceedings. The defendants are in no position to urge a contrary view. We are satisfied that the chancellor was right in apportioning the amount deposited according to the rights of the parties.

The value of plaintiff’s leasehold is the fair rental value of the property as of March 24, 1953, the day the condemnation petition was filed, less rent covenanted in the lease to be paid. Defendants say that the evidence shows the fair rental value of the property to be $9,000 per year, the rent stated in the lease $9,000 per year for the first two years and $10,200 per year for the remaining three years of the term, $1,200 in excess of the rental value, and that the leasehold has no compensable value. The decree found that the lease had a value of $1,700 per year and that its value is $6,800. In Corrigan v. City of Chicago, 144 Ill. 537, the court said that the measure of compensation for the estate of the tenant taken is the value of the leasehold estate, subject to the rent covenanted to be paid, and that if the value exceeds the rental he will be entitled to recover the excess, and if it does not exceed the rent reserved, he will be entitled to nothing. The evidence introduced by the defendants shows that the fair cash market rental value of the property as of March 24, 1953, was $9,000 per year or 60^ a square foot, equal to or less than the rent stated in the lease. Plaintiff introduced an experienced real estate broker who testified that the rental value of the property was $11,900 per year based on an area of 14,875 square feet at 80^ per square foot. In this valuation he included the loading dock. The only other witness for the plaintiff on the valuation was Mr. Harry Dee, its vice president and treasurer. He testified that his corporation rented a garage 3-% blocks from the Calumet Avenue property. The property newly rented was a “much older” building which needed tuckpointing, had no available parking space, a 1,000 gallon storage tank in place of a 5,000 gallon storage tank, had no loading docks within it, and its “deplorable roof” was an old-fashioned skylight roof. He said “there are many holes in the building and it is almost impossible to keep it warm.” He testified that plaintiff is paying 75^ a square foot for this property, and that based upon this and his general experience in renting this type of property, the condemned property had a value of 80^ to 90^ per square foot for leasing purposes. After a careful consideration of the testimony of all the witnesses we are unable to say that the finding in the decree as to the valuation of the leasehold is contrary to the manifest weight of the evidence.

Defendants assert that the testimony of plaintiff’s real estate valuation witness regarding the value of leasehold property at California and Barry Avenues, about 11 miles from the property taken, was incompetent owing to the dissimilarity of the properties. We think that because of the distances and the dissimilarity the testimony as to the California and Barry Avenue property should have been excluded. Without this incompetent testimony we find that there is sufficient evidence to sustain the finding in the decree as to valuation.

Mr. Dee testified that he looked at many other properties in the area, that one owner asked $1 a square foot and that the landlord of the premises subsequently leased first asked 90^ a square foot. In Department of Public Works v. Lambert, 411 Ill. 183, 191, the court said that the rule is established in this State that, in the absence of evidence of actual sales, bona fide offers to purchase for cash by persons able to buy are some evidence of what the property would sell for; that the bona fide character of the offer is a preliminary question which must be decided by the court; and that the burden is upon the party seeking to have such evidence admitted to establish a sufficient foundation by showing that the offer was bona fide and made by a person able to comply with the offer if it were accepted. The defendants interposed no objection at the time this testimony was taken. There was no attempt to qualify the witness under the rule mentioned in the Lambert case. We do not feel that the defendants were harmed by the testimony. We do not find any objection to the testimony of this witness about the rental paid at the new location, that he had experience in leasing properties of the type of the Calumet Avenue property, and that the fair cash market value of the rental was 80(i to 90(5 a square foot.

The decree allowed the plaintiff $1,057.04 as the value of a loading dock. The defendants argue that the loading dock is not compensable out of the condemnation fund because it is personal property. Plaintiff maintains that the value of the loading dock was included in the condemnation award and that it is personal property. As personal property the plaintiff-would have a right to remove the loading dock. The condemnor, in taking the land, did not take any personal property. We accept the finding of the master and the chancellor that the loading dock became part of the real estate and that it was taken. Plaintiff’s real estate valuation witness testified that his valuation of the leasehold interest at 80(5 a square foot was based on the real estate with the dock included. The decree finds the value of plaintiff’s leasehold to be $6,800. This necessarily included the value of the loading dock. The lease provides that “all alterations and additions to said premises shall remain for the benefit of the lessor.” In the Corrigan case (144 Ill. 537) the court said (550):

“It was error, therefore, to instruct the jury that the tenants, as compensation for their leasehold estates in the land, were entitled to the value of the buildings placed thereon. . . . It is clear, we think, that the true measure of the compensation, as their rights and interests are defined and fixed by the leases, was the value of their respective leasehold estates in their condition at the time of the filing of the petition for condemnation, including the use and enjoyment of the buildings and ground, . . .”

The separate allowance to plaintiff for the loading dock was unauthorized.

For the reasons stated the decree is modified by striking out the finding and order that plaintiff is entitled to anything for the taking of the loading dock and by reducing the amount required to be paid to plaintiff by the County Treasurer in Paragraph 4 to $6,800, and as modified, the decree is affirmed.

Decree modified and as modified affirmed.

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