text:
    S. S. DuHamel, Plaintiff-Appellant, v. Board of Education of Community Unit School District No. 1 of County of Christian and State of Illinois, Defendant-Appellee.
    Gen. No. 10,018.
    Second District.
    October 19, 1955.
    Rehearing denied November 28, 1955.
    Released for publication November 28, 1955.

      Roy M. Rhodes, of Springfield, and John W. Coale, of Taylorville, for appellant.
    Hershey & Bliss, of Taylorville, for appellee; Rolland F. Tipsword, of Taylorville, of counsel.
   MR. PRESIDING JUSTICE HIBBS

delivered the opinion of the court.

The plaintiff, S. S. DuHamel, appellant here, began an action in the Circuit Court of Christian County against the defendant-appellee, Board of Education of Community Unit School District No. 1 of the County of Christian to recover attorney’s fees alleged to he due and owing by reason of a contract between himself and the Board of Education of such school district. The jury returned a verdict in favor of the defendant. After overruling motions by plaintiff for judgment notwithstanding the verdict and a new trial, judgment was entered upon the verdict.

The first ground urged for reversal of the judgment is that the trial court erred in submitting the cause to a jury. The original complaint filed January 19, 1953 sought a recovery for legal services on a quantum meruit basis. At no time did plaintiff demand a jury trial. On defendant’s motion the time to plead was extended, and in due time defendant filed a motion to strike the complaint, which was heard on the following May 13th and denied on May 28th. On June 16th defendant filed its answer and special defenses and concluded with a demand for a jury trial. This demand plaintiff moved to strike. Thereafter defendant filed a reply to such motion and therewith a motion to extend the time to file a jury demand, supported by an affidavit of one of defendant’s attorneys, alleging it was his intention and the defendant’s at all times to request that the cause be tried before a jury, but through inadvertence and oversight of the affiant such request was not filed at the first appearance of the defendant in the cause. The court entered an order on the motions then pending and found that the defendant’s request for a jury trial was not filed in apt time and should be stricken, that the failure to so file was due to inadvertence and mistake on the part of the defendant and its attorney, but that no prejudice to plaintiff would result in allowing defendant’s motion to extend the time within which it could file such demand. The order struck the demand filed with the answer and leave was granted to defendant to file its demand instanter. The order further finds the jury demand was so filed.

The question at issue here involves a construction of Sections 64 and 59 of the Civil Practice Act (Pars. 188-183, Chap. 110, Ill. Rev. Stat. 1953 [Jones Ill. Stats. Ann. 104.064, 104.059]) and Paragraph 5 of the Supreme Court Rule 8 (Par. 259.8, Chap. 110, Ill. Rev. Stat. 1953 [Jones Ill. Stats. Ann. 105.08]). Section 64 provides: “A plaintiff desirous of a trial by jury shall make his demand for a jury in writing, and file such demand with the Clerk at the time suit is commenced, and a defendant desirous of a trial by jury shall make such demand and file the same at the time of filing his appearance; otherwise such party shall be deemed to have waived a jury.” Section 59 provides: “Additional time may be granted on good cause shown, in the discretion of the court and on such terms as may be just, for the doing of any act or the taking of any step or proceeding prior to judgment in any civil action.” Paragraph 5 of Supreme Court Rule 8 provides: “The judge, for good cause shown on special motion after notice to the opposite party, may extend the time for putting in any pleading or the doing of any act which is required by the rules to be done, within a limited time, either before or after the expiration of the time.”

The case of Roszell v. Gniadek, 348 Ill. App. 341, involved a factual situation almost identical with this cause. There this court reviewed the prior decisions including Stephens v. Kasten, 383 Ill. 127, and concluded at page 346 as follows: “The trial court granted the motion of the defendant (supported by affidavit) for leave to file a jury demand. This was within the sound discretion of the court and a procedure which was not followed in the City of Paris case, supra. Inadvertence and mistake, the basis of the defendant’s request for additional time in which to file the jury demand, seems to be slight reason, to be sure, but in view of the Kasten case, supra, it seems to be sufficient, if in the wisdom of the trial judge the motion for additional time in which to file the jury demand is granted.”

This case together with Stephens v. Kasten, 383 Ill. 127, were referred to in the recent case of Reese v. Laymon, 2 Ill.2d 614 at page 622, as indicative of the construction theretofore placed on Section 59 of the Civil Practice Act and Paragraph 5 of Supreme Court Rule No. 8.

Although we also regard the excuse for the delay set forth in the affidavit of the defendant’s attorney, namely, inadvertence and oversight, as a slight reason, for permitting the demand to be filed, we conclude that the discretion exercised by the trial court in permitting the demand to be filed should not be disturbed where, as here, the order in the language of the Kasten case, supra, at page 135 “did not tend to inconvenience the court or parties litigant or prejudice any rights in any manner whatsoever.”

A recovery on a quantum meruit basis was the theory of the original complaint. Later, by amendment, the plaintiff abandoned such claim and based his right to relief on an alleged contract. A consideration of the matters at issue on this question necessitates a statement of the salient facts shown by the record.

For some time prior to November 3,1949 the plaintiff had been employed by the Board of Education on an annual retainer basis of $400, payable $100 each quarter, to advise it on routine business. On the latter date the Board held a special meeting, attended by its members, the superintendent of schools and the plaintiff. At that meeting the Board had under consideration the question of issuing bonds in the amount of $630,000, the selection of a site for a schoolhouse, the purchase of a site so selected and building a schoolhouse as and for a junior high school and a high school. The plaintiff stated to the Board that his annual retainer would not cover payment of the necessary legal services to be rendered in connection with the issuance of bonds, selection of a site, purchase of a site and the building of the schoolhouse, but that it was customary for the bonding house to pay his fee, which would be 1% of the par value of the bonds. The minutes of that meeting were prepared by plaintiff and by him delivered to the secretary and made a part of the records of the Board. Such minutes disclose that the purpose of the meeting was to receive and consider and accept bids for the purchase of bonds of the district in the approximate amount of $630,000. The Board proceeded to prepare a statement prescribing the terms and conditions under which bids would be received addressed, “To Whom It May Concern:” Included in the terms and conditions were the following provisions: That the Board would on November 3,1949 at 7:30 p. m. receive bids for the purchase of bonds in the amount of approximately $630,000 to be issued by the Board, if and when authorized by the electors at an election called for the purpose of voting upon the proposition to issue bonds, select a schoolhouse site, purchase a schoolhouse site and erect a schoolhouse; that each bidder shall bid not less than the par value of the bonds; specify the rate of interest the bonds shall bear; the premium if any to be paid; and that the successful bidder will pay in addition as a part of the purchase price of the bonds 1% of the par value as attorney’s fees for services rendered to the Board by its attorney selected by it.

The minutes further disclose that at such meeting bids were received and the lowest and best bid was accepted. The minutes conclude with the adoption of a resolution, as follows: “Mr. Franklin moved that S. S. DuHamel be and he is hereby employed as attorney for said Board to perform all legal duties which the Board shall require in all proceedings of the Board, to issue bonds, select a site, purchase a site and build a schoolhouse in and for the district and to represent the Board in all court proceedings necessary to determine the validity of such bonds, and he shall be paid by the Board for such services a sum equal to 1% of the par value of the bonds issued and 60% of such sum shall be paid to him at the time of the sale and delivery of such bonds and the receipt of the purchase money therefor; the balance thereof at the time of the completion of the building.” The plaintiff, upon the adoption of the resolution, advised the Board he accepted such employment.

The plaintiff proceeded to perform all legal services in preparing the necessary documents to vote upon the following propositions: (1) To build a schoolhouse; (2) To purchase a schoolhouse site; (3) To issue bonds in the sum of $630,000; (4) For the purpose of selecting a site.

The election was held on December 10, 1949, at which time the foregoing propositions failed to carry and no site received a majority of the votes cast. Thereafter and on July 1, 1950 the same propositions were again submitted to a vote of the electors of said district and all of the propositions failed to carry, except a schoolhouse site was selected. On the 4th of September 1951 the Board by mail advised Mr. DuHamel as follows: “At recent meeting of the Board of Education of the Morrisonville Unit it was agreed to make a change in attorney on retainer, effective January 1, 1952. There is no criticism on your work, but it is felt that an attorney closer to Morrisonville will be of much more service to us. In advent of any court proceedings we would still want your counsel.”

The plaintiff considered this letter as a termination of his employment on both the retainer basis and under the alleged contract set forth in the minutes of the meeting held November 3, 1949, and did not perform any legal services for the Board after January 1, 1952. The evidence further shows that the Board of Education at the time the above letter was written had abandoned the project of selecting a site, the purchase of a site and the building of a new schoolhouse. In this connection it will be noted that in the letter to the plaintiff his services on a retainer basis were to cease January 1,1952.

The State Superintendent" of Public Instruction advised the Board of Education by letter, the date of which does not appear in the record, that the agriculture and industrial arts departments were inadequate and insufficient, and if adequate improvements were not made, the district would no longer receive its “reimbursement” from the State Superintendent. The Board did not take any steps to remedy the deficiencies referred to in the notification from the State Superintendent. Shortly thereafter certain departments of the school were put on probation for one year.

On August 2, 1952 the school district by an election authorized the issuance of $350,000 in bonds to remodel and add to the then existing school buildings at Morrisonville. This did not involve the selection of a site nor the purchase of a site nor the building of a new schoolhouse, and the only proposition voted upon by the electors being the issuance of $350,000 in bonds by the district. With the proceeds the Board built an addition to the Morrisonville schoolhouse (one of the existing school facilities) including therein an agriculture and industrial arts shop, a new gymnasium, a new heating plant and remodelled the old gymnasium, making additional classrooms.

Plaintiff contends that the resolution employing him adopted at the meeting on November 3, 1949 is a complete contract, whereby he was employed to perform any and all legal services in connection with the issuance of any bonds, to provide funds to build a new schoolhouse, select a site therefor and purchase the same, or in connection with the issuance of any bonds to increase the then present facilities of any existing schoolhouse or schoolhouses, even though the same did not involve the selection of a site or the purchase of a site or the building of a new schoolhouse thereon.

The defendant contends that the contract between itself and the plaintiff merely related to the project which the Board then had under consideration, namely, the selection of a schoolhouse site, the purchase of the site,'the building'of anew schoolhouse and the issuance of bonds in the sum of $630,000; that twice such project had been submitted to the voters and twice defeated, and thereupon the project was completely.abandoned; and the alleged contract had no application to the 1952 project whereby the existing schoolhouse was remodelled and certain additions made thereto.

The project under consideration in November 1949 contemplated an entirely new facility at a cost of substantially $630,000. It included the cost of a site of approximately 17 to 20 acres and the erection of a new schoolhouse to afford educational accommodations for a junior and senior high school covering grades seven to twelve, both inclusive. There were to be academic classrooms with a suite of offices for the superintendent, auditorium, a home economics room, a. cafeteria, art and music room, gymnasium, boys’ and girls’ lockers, toilet facilities, general science laboratory, physics and chemistry laboratory, commercial department for typing and bookkeeping, drafting room, agricultural classroom and farm shop. On the second floor there were to be six academic classrooms, library, study hall and speech room.

In the spring of 1952 the Board determined to embark upon another project, no doubt influenced by the fact that the school or some departments thereof by reason of its lack of facilities had been placed on probation by the State Superintendent of Public Instruction. This project did not involve the location of a schoolhouse site nor the purchase of a site nor the erection of a new schoolhouse, but provided an addition to the existing Morrisonville building, including agriculture and industrial arts shop, a new gymnasium, heating plant and the remodelling of the old gymnasium into classrooms.

Plaintiff contends that the resolution adopted by the Board on November 3, 1949 is the contract, the construction of which is for the court and not for a jury; that under such contract he is entitled to recover the sum of $3,500, being 1% of the par value of the bonds issued for the additions to and remodelling of the Morrisonville school.

Defendant contends that while ordinarily the interpretation of a written contract is purely a question of law for the court, but where the contract is not complete upon its face, then extrinsic facts and circumstances are admissible for the purpose of determining what the contract may be, which creates a mixed question of law and fact to be passed on by a jury.

One of the important elements that is left uncertain by the resolution is whether the plaintiff was employed to perform the necessary legal services for the project the Board then had under contemplation, namely, the selection of a site, the purchase of a site, the building of a new schoolhouse and the issuance of bonds in the amount of $630,000 to pay the cost of such project, or was it intended to cover all future building programs of the Board of Education, even though the same merely involved the issuance of bonds to pay the cost of erecting additions to and remodelling of one of the existing school buildings of the district.

We believe that the resolution is not complete in itself and the meaning of its terms is doubtful, particularly so in the matter now under consideration by the court. It cannot be said that the resolution of employment is certain as to whether the plaintiff was employed for the particular project then under consideration, namely, the erection of a new schoolhouse in the manner provided by law in such cases. Neither can it be said that the contract is certain that the plaintiff was employed to render legal services in connection with the issuance of bonds to pay the cost of an addition or additions to and remodelling of existing school buildings, in the event that the project to build a new schoolhouse was abandoned. Under these conditions the determination of the terms of the contract involves a mixed question of law and fact which must be determined by a jury, where one is demanded, as in this case.

In Turner v. Osgood Art Colortype Co., 223 Ill. 629, it is said at page 635: “The meaning of a written contract is ordinarily a question of law for the court and not one of fact for the jury, but if the construction depends not only upon the meaning of the words employed but upon extrinsic facts and circumstances, or upon the construction which the parties themselves have placed upon the contract, which is to be proved like any other fact, if such facts are controverted the inference to be drawn is for the jury, and in such a case the whole question as to what the contract was should be submitted to the jury under proper instructions.” In Carstens Packing Co. v. Sterne & Son Co., 286 Ill. 355, it is said at pages 357 and 358: “It is true that where the construction of a written contract depends not only upon the meaning of the words employed but also upon extrinsic facts or the construction which the parties themselves have placed upon it, which is to be proved as any other fact, if the facts so proved are controverted then the question as to what the contract was is a mixed one of law and fact, to be submitted to the jury.” To the same effect is Schneider v. Neubert, 308 Ill. 40, 44. Hartley v. Red Ball Transit Co., 344 Ill. 534, 542. The Chicago Daily News, Inc. v. Kohler, 360 Ill. 351, 363, 364. We are of the opinion that the court properly submitted the issue to the jury and that its verdict is not contrary to the manifest weight of the evidence.

Complaint is made that the court erred in giving defendant’s instruction, and the only instruction offered by the defendant, which is as follows: “The court instructs the jury that if you find by a preponderance of the evidence that the plaintiff was only to be compensated in the event the Board was authorized by the voters of Community Unit District No. 1 to locate a school house site, purchase a school site, build a school house and issue bonds in the sum of $630,000, then you may take this fact, if it be a fact, into consideration in arriving at your verdict.”

This instruction did not direct a verdict, but merely stated the defendant’s theory of the case, namely, the employment was merely for the project under consideration as set forth in the minutes of the Board meeting held on November 3, 1949. It was proper and indeed necessary that the court instruct the jury as to the theories of each party to the cause. In Schneider v. Neubert, 308 Ill. 40, at page 44, it is said: “Where the court is unable to determine the true agreement of the parties and it is necessary for the jury to determine what the contract is, the court should submit the question of fact to the jury under proper alternative instructions as to the construction to be given to the contract in the event of each possible finding of fact.”

The plaintiff tendered two instructions which were given to the jury by the court, one advising the jury that if it believed that the defendant in advising bidders they should include in the amount of their bid 1% of the bonds issued, this fact would not of itself justify the defendant in refusing to pay the plaintiff in accordance with its agreement as set forth in the resolution. The other instruction advised the jury that it was immaterial as to the face value of the bonds issued by the district, provided the jury did find from a preponderance of the evidence that the defendant did issue bonds in a certain amount which had been sold and delivered.

Thus the court did advise the jury by “proper alternative instructions as to the construction to be given to the contract in the event of each possible finding of fact.”

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

Judgment affirmed.


source: Caselaw Access Project

author: MR. JUSTICE REYNOLDS

license: Public Domain

text:
    John B. Midden, Administrator of Estate of Theresa Midden, Deceased, John B. Midden, and Gertrude Ann Midden, Plaintiffs-Appellees, v. Allstate Insurance Company, Defendant-Appellant.
    Gen. No. 10,007.
    Third District.
    October 19, 1955.
    Rehearing denied November 25, 1955.
    Released for publication November 25, 1955.

      Giffin, Winning, Lindner & Newkirk, of Springfield, for appellant; Alfred F. Newkirk, James M. Winning, and Walter W. Siebert, all of Springfield, of counsel.
    Roberts & Kepner, of Springfield, for appellees; Mark 0. Roberts, and Maurice W. Kepner, both of Springfield, of counsel.
   MR. JUSTICE REYNOLDS

delivered the opinion of the court.

This is defendant Allstate Insurance Company’s appeal from judgments of the Circuit Court of Sangamon County entered upon jury verdicts in favor of plaintiffs in their action brought upon an automobile public liability insurance contract issued by defendant to one Joseph Ingolia. The evidence showed the material facts surrounding the dispute to be as follows:

On October 25,1947, defendant issued an automobile public liability insurance contract to Joseph Ingolia, providing, among other coverages, bodily injury and property damage insurance with a maximum limit of $40,000. By the terms of the policy Ingolia was insured while operating a 1930 Ford automobile, which he then owned. However, the policy included the following terms:

“VII. Temporary Use of Substitute Automobile.

“While an automobile owned in full or in part by the named insured is withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction, such insurance as is afforded by this policy for bodily injury liability, for property damage liability and for medical payments with respect to such automobile applies with respect to another automobile not so owned (meaning “owned in whole or in part by the insured”) while temporarily used as the substitute for such automobile. This insuring agreement does not cover as an insured the owner of the substitute automobile or any employee of such owner.” (Emphasis and bracketed insert supplied.)

and

“IX. Automatic Insurance for Newly Acquired Automobiles.

“If the named insured who is the owner of the automobile acquires OAvnership of another automobile and so notifies the company within thirty days following the date of its delivery to him, such insurance as is afforded by this policy applies also to such other automobile as of such delivery date:

“(a) if it replaces an automobile described in this policy, but only to the extent the insurance is applicable to the replaced automobile. . . .”

On June 13,1948, Ingolia, while driving a 1937 Chevrolet, collided with an automobile being driven by one Theresa Midden. As a result of that collision Ingolia and Theresa Midden died; John B. Midden and Gertrude Ann Midden suffered bodily injuries. Thereafter, on June 7, 1949, John Midden, individually and as administrator of the estate of Theresa Midden and Gertrude Ann Midden, instituted an action in the Circuit Court of Bureau County, Illinois, against Mary J. Ingolia, administrator of the estate of Joseph Ingolia, deceased, for wrongful death and personal injuries. Judgments for all the plaintiffs were entered in that action on July 31, 1950. Grounds for reversal predicated upon the proceedings in the Circuit Court of Bureau County, the nature of the judgments entered and their subsequent amendment are advanced by defendant but need not be discussed in view of the conclusion we reach upon the basic issue of the ownership of the automobile being driven by Mr. Ingolia at the time of the collision in question.

• Plaintiffs’ theory of recovery was and is that the 1937 Studebaker was automatically covered under the above-quoted section IX of defendant’s policy because Ingolia had owned it less than the 30-day grace period for notice. With this proposition we agree. Next plaintiffs assert that the Studebaker was withdrawn from normal use within the meaning of section XII of the policy by reason of brake failure. There is substantial evidence to support that assertion. Finally, plaintiffs urge that Ingolia was using the 1937 Chevrolet as a substitute for the disabled Studebaker at the time of the subject collision within the terms of section VII, that the Chevrolet was owned by Mrs. Ingolia, and that, accordingly, his operation of the Chevrolet was a covered risk. With this we cannot agree for it is abundantly clear from the competent evidence in the record that the Chevrolet was owned in full or in part by Ingolia and was, therefore, under the express terms of section XII disqualified as a substitute automobile.

The evidence showed that in April 1948, and more than 30 days prior to the collision which gave rise to this controversy, Ingolia purchased the 1937 Chevrolet which he was driving at the time of the collision; that he took an assignment in his own name of the certificate of title of the seller; that thereupon, on April 29, 1948, he executed a promissory note in the amount of $175 payable to Peoria Finance & Thrift Company, which note was secured by a chattel mortgage upon the Chevrolet; that the chattel mortgage was executed by him and contained a warranty that he owned the 1937 Chevrolet; that thereafter on June 1, 1948, he applied to the Illinois Secretary of State for issuance of a new certificate of title to the Chevrolet to be registered in his name but delivered to the Peoria Finance & Thrift Company; Ingolia stated in the title application, under oath, that he was the sole owner of the 1937 Chevrolet; that a certificate of title was issued to him in his name; that the license plates attached to the Chevrolet at the time of the collision were registered in Ingolia’s name. There was no proof that Ingolia had notified defendant of his acquisition of the 1937 Chevrolet.

The evidence further disclosed that Ingolia’s widow did not know how to drive and had no driver’s license.

Ingolia’s widow testified on behalf of plaintiffs that Ingolia had purchased the Chevrolet in April 1948 with funds withdrawn from their joint bank account which had been funded with the proceeds realized from their sale of real estate owned in joint tenancy; that half of the money was hers and half was his; that Ingolia had purchased the car for the witness and their twenty-two-year-old daughter and had given the car to them; that it was the witness’ car to use; that after its acquisition Ingolia continued to own and operate the 1930 Ford which was expressly covered by defendant’s policy; that on June 3,1948, and within 30 days of the subject collision, Ingolia traded in the 1930 Ford and acquired a 1937 Studebaker; that about June 7th or 8th, 1948, the brakes on the Studebaker failed; that while the Studebaker was withdrawn from service Ingolia used the 1937 Chevrolet and during such use was involved in the subject collision. Plaintiff did not call the daughter as a witness. The record is silent on the question whether she knew how to drive an automobile or had a driver’s license.

On two occasions immediately following the collision Mrs. Ingolia stated to defendant’s investigators in the presence of a reporter who took and transcribed the questions put to Mrs. Ingolia, and her answers, that Ingolia owned the 1937 Chevrolet. On cross-examination the questions put to her by the investigators and her answers were read to Mrs. Ingolia. She did not deny any of the questions or her answers as read. She admitted outright that she had made certain of the answers as read, she equivocated as to others by stating that she had not made the answers ■ “in those words,” and as to others she responded she “may have” so answered or that she “did not remember,” or that she “couldn’t say,” or that she “could have” so answered.

Kevin D. Kelly, an attorney and investigator for defendant, testified without contradiction that the court reporter who accompanied him at the time he interviewed Mrs. Ingolia had died. He refreshed his recollection from the reporter’s transcript and thereupon testified verbatim to the questions he put to Mrs. In-golia and her responses, each of which had theretofore been read to Mrs. Ingolia. Robert L. McConnell, another investigator, similarly testified without contradiction to a subsequent interview of his with Mrs. Ingolia. It appeared that the court reporter who accompanied him at the interview was not produced as a witness because she was then actually engaged as official court reporter in a cause then on trial in the United States District Court in Peoria.

It also appeared from the evidence that Ingolia, as a side line to supplement his income, purchased used cars from time to time, repaired and overhauled them, and resold them.

Mrs. Ingolia’s testimony that Mr. Ingolia had purchased the 1937 Chevrolet for her and her daughter and had given it to them and that she owned it, standing alone, was not evidence of such ownership. The testimony was a mere conclusion of the witness without facts or evidence to support it. McGeoch v. Hooker, 11 Ill. App. 649, 652-653 (1st Dist. 1882); Socony-Vacuum Oil Co. v. Lambert (Tex. Civ. App. 1944), 180 S.W.2d 456, 460; Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97, 99 (1939).

The burden was upon plaintiffs to prove that the 1937 Chevrolet when driven by Ingolia was covered by the policy sued upon, i. e., that the Studebaker, which defendant admits was the automobile covered by the policy, was temporarily out of use; that the 1937 Chevrolet was in temporary use by the insured in place of the Studebaker and that the insured was not the owner of the Chevrolet in whole or in part.

There is no competent evidence in the record upon which the jury could properly find that Ingolia was not the owner of the Chevrolet in whole or in part. On the other hand, the competent evidence in the record established the contrary. Even if the burden of proof upon the issue of ownership was upon defendant, dt has sustained that burden.

Plaintiffs argue that defendant’s letter of August 18, 1948, to the estate of Ingolia, cancelling the insurance policy and remitting the unearned portion of the premium is an admission by defendant that the policy covered the 1937 Chevrolet and insured Ingolia at the time of the collision. The letter recites:

“Gentlemen:

“Due to the accident of June 13,1948, we understand you will no longer need insurance on the car involved and have terminated your policy as of that date.”

Defendant’s counsel do not respond to this contention of plaintiffs. We are of the opinion that the argument is without merit. There is nothing in the letter bearing on the question of ownership of the Chevrolet. In any event, the letter is addressed to Ingolia’s estate and is consistent only with the theory that Mr. Ingolia was the owner of the Chevrolet. Plaintiffs counted on the policy on the theory that the Chevrolet was a temporary substitute for the Studebaker, which was the automobile primarily covered, and not upon the theory that the Chevrolet, rather than the Studebaker, was the automobile primarily covered. The letter does not purport to and does not alter the insurance contract upon which plaintiffs predicate their action.

Plaintiffs argue that the evidence respecting the title registration bears upon paper title, not legal title. As respects the issue in question the alleged distinction advanced does not aid plaintiffs’ case. It is a play on words. The facts respecting title registration are evidence of acts of dominion ownership and control of the Chevrolet on the part of Ingolia. They are facts tending to disprove ownership, or at least exclusive ownership, by Mrs. Ingolia. Taken with other evidence in the record they establish that Ingolia owned the Chevrolet either in whole or in part.

The verdicts for plaintiffs were necessarily predicated upon a finding that Ingolia was not the owner in whole or in part of the 1937 Chevrolet. In view of the facts above recited, there was no evidence from which the jury could so find. Accordingly, the trial court erred in not granting defendant’s motion for directed verdicts and its motion for judgment notwithstanding the verdicts.

But plaintiffs assert that defendant failed in the trial court to challenge the jury’s answer to a special interrogatory regarding the ownership of the 1937 Chevrolet; that the answer to that interrogatory supports the general verdict; that, accordingly, defendant is now precluded from challenging the sufficiency of the proof in support of the general verdicts. In this context plaintiffs rely upon Brant v. Chicago & Alton R. Co., 294 Ill. 606, 615; Rubottom v. Crane Co., 302 Ill. App. 58, and Brimie v. Belden Mfg. Co., 287 Ill. 11.

We have concluded from our examination of the cited cases that they are not applicable here and that defendant adequately preserved the question of the sufficiency of the evidence to support the verdicts.

In Rubottom v. Crane Co., supra, as in each of the cited cases, the jury returned answers to special interrogatories which were consistent with and in support of the general verdict. Thereafter, in post-trial motions the sufficiency of the evidence to support the general verdicts was challenged but no attack was made upon the answers to the special interrogatories. Accordingly, when on appeal appellant urged as error the failure of the trial court to set aside the verdict, the Appellate Court said, at page 66: “Under the authorities there are several ways by which a party may escape from being conclusively bound by the special finding of a jury: (1) by specific objection to the special finding on the motion for a new trial, or (2) by filing a specific motion to set aside the special finding when the motion for a new trial is made. Defendant resorted to neither of these motions. Under the decisions in this State a motion to direct a verdict at the end of plaintiff’s case is not sufficient to preserve such right, nor is the general objection that the verdict was contrary to the weight of the evidence. Rockwood Sprinkler Co. v. Phillips Co., 265 Ill. App. 267, is precisely in point.”

Here, however, defendant followed the teachings of the Rubottom case, for in its motions for judgment notwithstanding the verdict and, in the alternative, new trial, it specifically objected to the jury’s negative answer to the interrogatory: “Was the 1937 Chevrolet sedan which was involved in the accident, owned in full or in part by Joseph Ingolia at the time of the accident?” Thus, in its motion for judgment notwithstanding the verdict defendant urged as point 6 thereof: “There was no competent evidence that the 1937 Chevrolet automobile was not owned by Joseph Ingolia at the time of the accident,” and, as point 10 thereof, “The manifest weight of the evidence showed that the 1937 Chevrolet was owned at the time of the accident by Joseph Ingolia, deceased.” In addition, attack was made upon the sufficiency of the evidence to support the general verdict.

This, we believe, was an adequately specific objection to the jury’s answer to the special interrogatory regarding the ownership of the 1937 Chevrolet. It was couched in the language of the interrogatory and specifically directed the trial court’s attention to the proof adduced upon the question of the ownership of the 1937 Chevrolet. Accordingly, defendant preserved the assigned error that there was no evidence to support the jury’s answer to the special interrogatory and the general verdict, and avoided the rule announced in the above cited cases.

We have concluded that the only verdict which the jury could properly have returned in this cause was one in favor of the defendant. We believe that all of the evidence regarding the ownership of the 1937 Chevrolet pointed to the fact that Joseph Ingolia was from April 1948, through the date of the subject collision, the owner thereof in whole or in part. The proof adduced by both parties showed that the car had been purchased with funds in which Ingolia had an interest; that he registered the car in his name; that he posted title to the car as collateral for a loan made to him; that the license plates affixed to the car at the time of the collision were registered in his name. These indicia all pointed to but one conclusion — that the 1937 Chevrolet was owned, in whole or in part, by Joseph Ingolia and was accordingly not eligible for automatic insurance as a substitute vehicle under section VII of defendant’s policy.

We hold that under all the evidence, viewed in a light most favorable to plaintiffs, there is a total lack of evidence that Ingolia was not the owner in whole or in part of the 1937 Chevrolet. In fact the proof, even when so viewed, establishes the contrary. Heideman v. Kelsey, 414 Ill. 453, 457, 111 N.E.2d 538; Eckhardt v. Hickman, 349 Ill. App. 474, 477, 111 N.E.2d 199.

We have considered the various other grounds for reversal of the judgments and of the order denying defendant’s motion for judgment notwithstanding the verdict and in the alternative for a new trial, which are advanced by defendant, as well as plaintiffs’ counterarguments. However, in view of our decision upon the basic -issue, it is unnecessary to pass upon the other grounds- urged for reversal.

In the light of the foregoing, the judgments of the court below upon the verdict and its order denying defendant’s motion for judgment notwithstanding the verdicts are reversed and judgment is entered in favor of: defendant upon its motion for judgment notwithstanding the verdicts.

Reversed.


author: MR. JUSTICE CARROLL

text:
    William Schloz and Carolyn Schloz, Plaintiffs-Appellees, v. Grover Clements, Defendant-Appellant.
    Gen. No. 10,016.
    Third District.
    October 19, 1955.
    Rehearing denied November 28, 1955.
    Released for publication November 28, 1955.
    Hershey & Bliss, of Taylorville, for appellant; Charles E. Bliss, Richard G-. Hershey, and Holland F. Tipsword, all of Taylorville, of connsel.
    Carl H. Preihs, of Pana, for appellees.
   MR. JUSTICE CARROLL

delivered the opinion of the court.

Defendant appeals from a judgment in favor of plaintiffs entered by the Circuit Court of Christian County in an action brought to recover the down-payment made on a contract entered into with one Laura Barton for the purchase of certain real estate.

From the record it appears that defendant was in the real estate business in Pana, Illinois; that he was employed by Laura Barton to sell a certain residence property in that city; that later the transaction which gave rise to the controversy here involved began when plaintiff, Carolyn Schloz, went to defendant’s office to inquire concerning the Barton property; that plaintiffs, after inspecting the property, made application to the Pana Federal Savings and Loan Association for a loan thereon which was approved; that on April 6, 1951, plaintiffs and Laura Barton signed a contract which provided for payment by plaintiffs of the purchase price of $9,500, payable as follows: “$500.00 cash upon signing contract and the balance to be paid in cash upon approval of abstract”; that this contract was filed for record in the Recorder’s Office of Christian County by plaintiffs on April 23, 1951; that plaintiff, Carolyn Schloz, testified that when defendant took her to see the property he told her he would guarantee the title to the same; that defendant testified that he did not remember exactly what he told plaintiff on such occasion; that he told her the title was good; that by way of impeachment it was shown that defendant in a pretrial deposition stated he told plaintiffs he would guarantee the title or “something to that effect”; that the abstract of title to the premises was examined by an attorney for the Pana Federal Savings and Loan Association who rendered his written opinion thereon; that in the opinion the examiner reported finding title to the premises in Laura Barton and L. E. Barton, as tenants in common; that L. E. Barton was deceased; that the abstract did not disclose whether he died testate or intestate, or the names of his heirs, and that in order for Laura Barton to convey good merchantable title, it would be necessary that the estate of L. E. Barton be probated; that the examiner concluded his opinion by suggesting the procedure to be followed by Laura Barton in clearing up the objections to the title; that the opinion contained no statement indicating that the examiner regarded the title as being one that could not be made merchantable; that on April 20, 1951, plaintiffs, the seller and the defendant met at the office of Gruy Smith, an attorney representing Mrs. Barton, in an effort to make an arrangement satisfactory to the parties to the contract whereby the plaintiffs might have possession of the premises pending the clearing of the objections to the title; that at this meeting, according to the testimony of Mr. Smith, the parties reached an agreement on handling the transaction pending the probating of the L. E. Barton estate, which agreement was put in writing; that this agreement provided for payment by plaintiffs of six per cent interest on the unpaid balance of the purchase price; that plaintiffs objected to this interest payment and the contract was never executed by the parties; that thereafter, plaintiff, William Schloz, called the defendant and told him the deal was off; that on July 3, 1951, Attorney John W. Eribley, who represented plaintiffs, wrote the defendant and Attorney Smith advising them that plaintiffs were renouncing the contract with Mrs. Barton as being unenforceable for lack of mutuality and asking return of the $500 downpayment.; that on or about July 7, 1951, the defendant distributed the earnest money for the benefit of Mrs. Barton as follows: $475 to himself as commission.; $13.05 for abstract, and a.check to the seller for $11.95; and that this action was then instituted against the defendant.

In the complaint as originally filed, plaintiffs allege that they were induced to sign the contract for the purchase of the real estate from. Laura Barton and to make the downpayment of $500 thereunder by certain false representations made to them by the defendant and upon which they relied; that the contract, therefore, lacked mutuality; that plaintiffs had demanded return of the amount of the downpayment and prayed judgment therefor.

Plaintiffs apparently abandoned the theory upon which recovery was sought in the original complaint and filed an additional Count designated as Count II of the Complaint. In this additional Count, it is alleged that in order to secure the downpayment of $500 from plaintiffs, the defendant acting as agent for Laura Barton, represented and guaranteed that the title to the property in question was merchantable; that the title to the property was not merchantable and that the contract between plaintiffs and Laura Barton was unenforceable. The defendant answered Count II denying the allegations thereof except that he was the agent of Laura Barton and received the downpayment for her. In special answers to which plaintiffs did not reply, the defendant alleges that he was a real estate agent for Laura Barton; that he was not a party to the contract which remains in full force and effect between the parties thereto.

The cause was tried by the Court. At the close of plaintiffs’ proof, which was substantially in accord with the facts as herein outlined, the defendant moved for dismissal of both Count I and II of the Complaint. This motion was denied and defendant introduced no evidence. The Court thereupon entered judgment for plaintiffs on Count II of the Complaint in the amount of $475- and for costs.

' The principal points relied upon by defendant in his argument for reversal of the judgment are, (1) that 'the contract between plaintiffs and Laura Barton and made the basis of the cause of action stated in Count II of the Complaint, constituted the whole agreement between the parties thereto and that all prior negotiations between plaintiffs and defendant as agent for Laura Barton, including statements relative to the condition of his principal’s title, are merged in the written agreement executed by her and the plaintiffs; (2) that plaintiffs failed to prove that the title to the real estate in question was not merchantable and that the contract was unenforceable.

The theory upon which plaintiffs base their right to recovery is that defendant guaranteed the title to the real estate to be merchantable; that said title was not merchantable; that the contract between plaintiffs and defendant’s principal was thereby rendered unenforceable; that, therefore, Mrs. Barton had no right to the downpayment and the witholding of the same by the defendant became wrongful and that as a result thereof, the defendant is personally liable to plaintiffs for such downpayment.

The record in this case clearly shows that plaintiffs’ action is brought upon the written contract between plaintiffs and Laura Barton. The defendant was not a party to such contract. It is obvious, therefore, that if any liability exists upon the part of the defendant, it must arise from some source other than such written contract.

Where as in this case the written agreement shows a complete legal obligation, all conversations and negotiations of the parties are merged therein and parol evidence to vary the terms of the contract is inadmissible. Robbs v. Illinois Rural Rehabilitation Corp., 313 Ill. App. 418; Watkins Co. v. Salyers, 384 Ill. 369; Vella v. Pour, 329 Ill. App. 355.

While in Count II of the Complaint, plaintiffs allege that “The defendant represented and guaranteed unto the plaintiffs that the title to said premises was good and merchantable and held in fee simple by the said Laura Barton,” there was no proof of any agreement on the part of the defendant to become personally liable upon the contract of his principal. The agency of the defendant was fully disclosed to the plaintiffs, who admittedly knew they were not contracting with defendant personally. Under the facts here disclosed, the defendant is not personally liable on the contract he negotiated on behalf of his principal with the plaintiffs. Chicago Title & Trust Co. v. DeLasaux, 336 Ill. 522.

This leaves for consideration, the question whether the defendant may be held liable for payment on the theory that he wrongfully withheld the down-payment after receiving notice from plaintiffs that they were renouncing the contract and were demanding a return of the amount paid on the purchase price. It may be granted that in a proper case such a theory might be sustained. In the case of Wheeler v. Cannon, 84 Ill. App. 591, cited by plaintiffs, the appellant as agent received $50 to be applied in payment of rent in case a lease was agreed upon by appellee and appellant’s principal. No lease was consummated and the Appellate Court held appellant must return the $50 payment to appellee. A like holding is found in Smith v. Binder, 75 Ill. 492. In these cases, it appeared that the principal was never entitled to the payment sought to be recovered; however, in the instant case, defendant received the downpayment as agent for Mrs. Barton pursuant to the provisions of the contract executed by his principal and plaintiffs. There is nothing in the contract indicating that defendant was to hold the downpayment. The only connection between the defendant and this payment shown by the record, is the fact that the check of plaintiff William R Schloz was payable to the defendant as agent. The contract provided for payment of “$500.00 cash upon signing of contract.” This sum of money was paid to the seller, Mrs. Barton. It cannot be argued that Mrs. Barton was not entitled to receive the same. The fact that the payment was delivered to her agent does not alter the plain wording of the contract. It contains no provision for payment of any part of the consideration for the contract to the defendant. The payment was a part of the subject matter of the contract, to which the defendant was not a party. Any right of plaintiffs to recover back the amount paid on the contract must be asserted against the party with whom they contracted and not against the defendant.

It may be further observed that we are not here confronted with the situation where an agent has received and holds money to which his principal is not entitled. Under the terms of the contract under consideration, the defendant did not receive nor does he hold money to which Mrs. Barton was not entitled. ¡The contract provided that plaintiff should pay the purchase price of the real estate to Mrs. Barton. It is not disputed that plaintiffs paid the $500 to be applied on the purchase price at the time of or prior to the signing of the contract. This contract appears to be still in force and effect. The rights of the parties thereunder could only be determined as between such parties. Whether the plaintiffs are entitled to return of the money paid on the contract cannot be decided in this action to which Mrs. Barton is not a party.

A considerable portion of the briefs and argument of both parties are devoted to the question of the merchantability of the title of defendant’s principal. In view of the conclusion we have reached, it becomes unnecessary to consider and pass upon this issue.

For the reasons herein stated, the judgment of the trial court is reversed.

Reversed.


author: MR. PRESIDING JUSTICE BARDENS

text:
    In the Matter of Estate of Edward A. Wolz, Deceased. L. D. Turner and Ella P. Mueller, Appellants, v. Thelma L. Lobsinger, Appellee.
    Term No. 55-O-26.
    Fourth District.
    November 1, 1955.
    Released for publication December 5, 1955.
    W. E. Ackermann, of Belleville, for appellants.
    John S. Huber, of Belleville, for appellee.
   MR. PRESIDING JUSTICE BARDENS

delivered the opinion of the court.

Appellants’ appeal to the Circuit Court of St. Clair County from an order of the Probate Court admitting a will to probate was dismissed on motion of appellee because of appellants’ failure to pay fees and costs in the Probate Clerk’s office within due time. Appellants seek a reversal of this order contending that they have substantially complied with the statutory requirements.

Section 484 of Chapter 3, Ill. Rev. Stat. (1953) [Jones Ill. Stats. Ann. 110.581] provides as follows:

“An appeal .... may be taken by any person who considers himself aggrieved to the circuit court by the filing in, and the approval by, the probate court of an appeal bond and the payment of costs and fees of the appeal. The bond shall be filed and approved and the fees and costs paid within twenty days after the entry of the order, judgment or decree appealed from or within such further time, not to exceed sixty days after the entry of the order, judgment or decree appealed from, as the probate court may allow on application made within the twenty days.”

In Davison v. Heinrich, 340 Ill. 349, 172 N. E. 770, the Supreme Court pointed out that appeal from the County Court to the Circuit Court is wholly statutory and that strict compliance with the statute is required. The evidence here reveals that the costs were paid to the Probate Clerk thirty days after the entry of the order admitting the Will to probate. No extension of time was requested. Appellants’ attorney testified, however, that within the twenty day period he offered to pay the costs to the Deputy County Clerk but was advised that they could be paid when the transcript was subsequently completed. The Deputy Clerk did not recall such conversation.

Appellants’ contention is that such statutory provision is designed solely to assist the County Clerks in the collection of their costs; that the legislature did not intend to make the appeal dependent upon paying costs. McClelland v. In re Estate of Gorrell, 327 Ill. App. 224, 63 N. E. 884, is cited in support of appellants’ argument for a departure from a literal interpretation and enforcement of the statute. In that case, the appellants’ attorney left several duly signed blank checks with the County Clerk within the twenty day period. These checks were accepted by the clerk as payment of appeal costs though they were not filled out and deposited until after the twenty day period. The Appellate Court held that it could not direct dismissal of the appeal for failure to pay costs since, such manner of payment had been accepted by the clerk within the statutory period. The offer to pay costs made within the twenty day period in the instant case is not equivalent to the mode of payment in the McClelland case.

The statute makes mandatory two conditions of appeal. One is furnishing bond and the other is payment of costs. Both requirements are for the benefit of other people and both are necessary to perfect appeal in accordance with the statute. In the light of the clear meaning of Sec. 484, the Circuit Court properly dismissed the appeal from the County Court. Any different action in this Court would clearly be judicial legislation.

Judgment affirmed.

CULBERTSON and SCHEINEMAN, JJ., concur.


author: MR. JUSTICE SCHEINEMAN

text:
    Alma Davis and Charles Davis, Plaintiffs-Appellees, v. Thomas W. Moore, et al., Defendants-Appellants.
    Term No. 55-O-1.
    Fourth District.
    November 1, 1955.
    Released for publication December 5, 1955.

      Robert H. Rice and Thomas P. O’Donnell, both of East St. Louis, for defendants-appellants.
    Weihl & Weihl, of East St. Louis, for plaintiff sappellees.
   MR. JUSTICE SCHEINEMAN

delivered the opinion of the court.

The plaintiffs, Alma and Charles Davis, filed an action of forcible entry and detainer against the defendants, Thomas W. Moore and wife, in a justice of the peace court. The plaintiffs obtained judgment for possession of the premises involved, on the 29th day of September, 1952, but an appeal was taken therefroril to the circuit court in which an appeal bond for the face amount of $200 was filed, with defendant, John Ferguson, as surety.

The plaintiffs again succeeded, in the circuit court and obtained a judgment for possession on April 6, 1953. The defendants then took an appeal to the appellate court, filing an appeal bond in the face amount of $1500 with the same surety.

Both of the appeal bonds were defective in form in that they failed to contain the provision for payment of all rent then due or to become due before the final determination of the suit. This condition is required by statute. Ill. Rev. St., Ch. 57, Sec. 20 [Jones Ill. Stats. Ann. 109.280].

The appeal to the appellate court was dismissed on February 23, 1954, for the reason that the notice of appeal and bond had not been filed within the five day period as required by the statute above cited. The appellate court noted that the bond was defective in form, but did not enter an order for the filing of proper bond, which appellants had offered to do, since the appeal had to be dismissed for the reasons indicated.

Thereafter the plaintiffs filed this suit against the original defendants and also included the surety. The complaint set up the foregoing history and asked the court to reform the bonds to include the full statutory coverage, stating the omission occurred through mistake or error, and asked judgment for the face amount of both. The complaint was attacked by motion which was overruled and defendants answered. After hearing evidence, the court reformed the bonds as prayed, and entered judgment thereon for $200 and $1500 respectively.

The evidence for plaintiffs included testimony that the Moores had withheld the premises during the entire period of litigation and finally vacated them on May 1, 1954; that the premises had never been rented, that the reasonable rental value thereof was $150 per month, and that other damages had accrued. Defendants offered no evidence, so that the proof was obviously sufficient.

The principal contention now made before this court is that the complaint did not state a cause of action, with argument based on the distinction between mistake of fact and mistake of law, the necessity of the mistake being mutual, and with citations of cases pertaining to reformation of deeds, etc.

In Village of Clarendon Hills v. Century Indemnity Co., 299 Ill. App. 604, it was held that, in a suit to reform the fidelity bond of a village collector to make it an official bond, the court would regard the requirements of the statute as a part of the bond, and recovery was allowed based on the statute, although the bond did not contain the required provisions.

Likewise, in People v. G. H. Cross Co., 361 Ill. 405, 419, the court ruled, “A statute requiring a bond constitutes a part of the bond, and it must be assumed that the bond is executed with reference to the provisions of the statute.”

In Pierson v. Lawyer, 225 Ill. App. 400, the court held that an appeal bond in a forcible entry and detainer action, although it did not comply with the statutory provisions, was binding nevertheless, and that the people who had obtained a delay by filing such a bond would be estopped from denying that it was a binding obligation, and a recovery was allowed thereon.

The foregoing decisions are based upon sound reasoning and produce a just result. Accordingly, this court holds that the statutory requirements of an appeal bond are a part of such bond, whether fully recited therein or not, that it is not error for a court to decree a reformation of a bond to conform to the statute (although it may not be necessary), and that judgment may be entered on an appeal bond according to the provisions of the statute, regardless of any error in the form of the bond.

The question whether the error occurred through mistake of law or mistake of fact is irrelevant. It would make no difference if the error was intentional rather than a mistake. The fact is that the defendants in the action obtained a delay of 6 months by their appeal from justice court, to the damage of plaintiffs far exceeding the face of the bond. A further delay of more than 10 months was obtained by the second appeal, again causing damages exceeding the face amount of the bond filed on that appeal. The defendants are now estopped to assert that the bonds did not comply with the statute.

The complaint was sufficient to state a cause of action, the proof was adequate, and the judgment of the circuit court was correct and it is affirmed.

Judgment affirmed.

BARDENS, P. J. and CULBERTSON, J., concur.


author: MR. PRESIDING JUSTICE DOVE

text:
    Bliss Ring Company, Inc., Plaintiff-Appellant, v. Globe and Rutgers Fire Insurance Company, Defendant-Appellee.
    Gen. No. 10,838.
    Second District.
    November 5, 1955.
    Released for publication November 22, 1955.

      Bozeman, Moran & Klockan, of Moline, Angerstein & Angerstein, and Charles T. Shanner, all of Chicago, for appellant.
    Huber, Reidy & Katz, of Rock Island, and Samuel Levin, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DOVE

delivered the opinion of the court.

The complaint in this case alleged, among other things, that on, prior, and subsequent to January 23, 1952, it was engaged in the wholesale jewelry business and in the prosecution of its business employed divers salesmen to sell its products to retail dealers located in this state and elsewhere; that on September 16,1952, one of its salesmen was T. E. Thorsen, who had in his possession certain articles of jewelry and cases for the transportation thereof belonging to the plaintiff, of the value of $3,728.43, which were stolen by a person or persons unknown from an automobile owned by said Thorsen while he, the said Thorsen, was actually in said automobile, and that said occurrence took place near the Rock Island Arsenal in Rock Island County, Hlinois.

Attached to and made a part of the complaint was a photostat of a Jewelers Block Policy referred to in the complaint which was issued hy defendant to the plaintiff effective January 24, 1952, and expiring January 24, 1953. By its terms this policy insures precious and semi-precious stones, jewels, watches and jewelry owned by the assured to the extent of $5000 “against all risks of loss of or damage to the above described property arising from any cause whatsoever except loss or damage to property insured hereunder while in or upon any automobile, motorcycle or any other vehicle unless, at the time the loss occurs, there is actually in or upon such vehicle, the Assured, or a permanent employee of the Assured, or a person whose sole duty it is to attend the vehicle.” The policy also provided that the property described is covered anywhere in, and in transit within and between, the continental United States, “but subject always to the conditions, exclusions and exceptions stated herein.”

The answer of the defendant admitted the allegations of the complaint as to the character of defendant’s business and the issuance by it of the policy of insurance as alleged. It admitted the giving of notice of loss and demand for payment and defendant’s refusal to pay. It denied the employment of Thorsen as a salesman for plaintiff and denied that the jewelry and cases were stolen from an automobile owned by Thorsen while Thorsen was actually in said automobile and denied that such occurrence took place near the Bock Island Arsenal as alleged. The issues so made by these pleadings were submitted for determination to the court, without a jury, resulting in a finding and judgment for the defendant and plaintiff appeals.

Thorwald Thorsen testified in substantiation of the plaintiff’s charge that its jewelry was stolen by an unknown person or persons from the automobile owned by Thorsen while he, Thorsen, was actually in said automobile near the Bock Island Arsenal. He testified, upon direct examination, that at the time of the trial he was sixty years of age and for the past four years had represented plaintiff as a jewelry salesman; that he had customers in Davenport, Moline, and Rock Island, and on September 16,1952, in the course of his employment, he arrived in Davenport at about 9:30 o’clock in the morning and called upon certain customers; that he owned and had a 1951 Ford automobile, hard top, referred to as a Victoria, and which had the usual trunk compartment in the rear which opened with a key. Thorsen further testified, as abstracted: “Upon my arrival in Davenport, I drove into the parking lot on Main next to the library. I am not sure of the name. The attendants there will park your car. You are not permitted to park it yourself. At the time I left there I didn’t see where they parked it. It was in the drive way when I returned. It was parked directly in front of the attendant’s house, at slight angles to the right facing the attendant’s office. The rear of the car was towards the sidewalk. When I made those calls I had the jewelry with me. The last call I made was at Plank Company located across the street on the same side of the street as the parking lot about 200 feet down. When I finished with that call at the Plank Company I went to the parking lot. At that lot they take your keys, and I had obtained my keys and I told the attendant I was going in next door to get a cup of coffee which is the coffee shop or Dunkette Shop which is on the same lot and approximately 50 feet from the car. My reason for telling the attendant that was that I didn’t think it was necessary to hand the key back. I placed the grip in the rear of the car, put the keys in my pocket, went in next door, got a cup of coffee and a doughnut, and I told the attendant where I was going and I said I was only going to be gone a few minutes. ‘I will keep the keys.’ It was approximately 4:00 in the afternoon when I checked out. When I put those cases in the trunk, I locked the trunk to the best of my knowledge. On that car, I don’t recall whether it was a so-called slam lock or whether I had to turn the key. I just don’t remember. I had the bag in my possession all the time from the time I left Plank’s Jewelry until I put it in the car. When I got back from the coffee shop I got to the car and proceeded to the home of my sister-in-law, Mrs. Thomas Goyins, who lives at 1516 26th Street, Eock Island. There is only one exit on the parking lot. The exit is on Main Street and as I recall on that day I could not make a left turn due to the heavy traffic so I made a right turn, went completely around the block, then proceeded down to the Government bridge, across the bridge and straight out that street. I cannot tell you the name of the Street. I believe I checked out about 4:00 P.M. I would say it probably would have taken only six-eight minutes to get down onto the Government bridge. It would have been a little after 4:00. The Government bridge does not go straight across the river. It makes a curve particularly to the right where the Arsenal road from Eock Island proceeds straight; coming from this direction from Eock Island you have to make a right turn there. You make a right turn where the entrance is for the Arsenal itself, the employees. When I got up towards that entrance I stopped there. The traffic was coming out of the Arsenal. It was very heavy traffic. There’s a stop sign there and there was a policeman directing traffic. The policeman was way across the road, facing my car in the other direction. I would say my car was approximately 150 feet from the policeman. I was the first car in line. It is hard to judge how long I remained there when I was waiting. It was a considerable time. It was a very hot day and I turned on the radio. I had heard about this stop there. I had heard previously from my brother-in-law who works at the plant that the plant traffic had right of way regardless how long it took them to get out. As a civilian on the other road who was just waiting, I would say approximately 12-15 minutes. I leaned back on the seat and dozed. I am five feet eight inches tall. When my lane of traffic moved, I proceeded on to the home of my sister-in-law, at the address in Rock Island I have given. When I got home, I drove up the alley as usual along side of his garage. G-ot out of the car, unlocked the rear compartment and found both bags gone. I didn’t even stop to go in the house. I jumped in the car and dashed back to Davenport to the police department. I went back by the Centennial Bridge. I did not go back on the same bridge. I was afraid of being held up by the traffic. I went to the parking lot first and asked them to call the police department. I don’t know the man’s name to whom I talked. He was one of the attendants. I thought at first he was one of the young men I saw this morning but I can’t be sure. I don’t recall if the policeman came down. He said the police headquarters was just around the corner and I did go up there immediately.” In answer to the question by counsel for plaintiff, “Do you know when or where the bags of jewelry were removed from your car?” the witness answered, “No, I do not;” and to the further question, “Did you do it?” replied, “No, sir, I did not.”

Upon cross-examination, Mr. Thorsen was asked this question: “Is it your belief in this case that a stranger, while you were dozing at a cross-sign waiting for clearance for traffic and listening to a radio, opened the trunk of your car at that point?” His reply was “I frankly don’t know.” He further testified that he knew the provisions of the insurance policy previous to September 16,1952; that at the Gfoyins residence, after he discovered the case containing the jewelry was missing from the trunk of his car, he returned to the parking lot because “I was under the impression that it was stolen while I was there.” He further testified that he was the only one who had possession of a key to the trunk of his car; that the trunk required a separate key tó open it; and that he knew of no duplicate key in the hands of anyone- else.

Oscar J. Kraft testified on behalf of the plaintiff that he was employed as an attendant at the Seydel Parking Lot on September 16, 1952, and had been since February of that year: He identified some photographs of the lot which were offered and admitted in evidence and testified that he recalled that Thorsen came to the parking lot, checked his car, and later returned, paid the witness for parking, had some conversation about checking the bags at the office but decided not to and then- told the witness that he was going to get a cup of coffee and left and was gone not more than ten minutes; that during this period of time, the Thorsen car whs approximately forty feet from the office on the parking lot and was never out of his range of vision. This witness further testified that the rear of the Thor-sen car was parked two or three feet from the sidewalk along Main Street and that a safety cable strung through posts around the lot served as a safety bumper. On cross-examination, Mr. Kraft testified that during this ten-minute period he checked out three or four cars and did not mean to state on direct examination that when he was handling another car he was looking at the Thorsen parked car.

Thomas Morrell, another witness called by the plaintiff, testified that he was a desk sergeant connected with the Davenport police department and that in September, 1952, the theft of some jewelry occurring in Seydel’s Parking Lot was reported to him, that he made an investigation and, during the course of the investigation, he had conversations with Mr. Thorsen who told him on more than one occasion that the loss of plaintiff’s jewelry occurred while his (Thorsen’s) car was in the parking lot.

On behalf of the defendant, Wm. R. Kruse testified that he was captain of the police department of Davenport, Iowa, and that on September 17, 1952, Thorwald Thorsen came to the detective bureau in the city hall in Davenport and said he wanted to talk over the theft of around $14,000 jewelry supplies that he had in his car on the parking lot the previous day; that Thorsen did not indicate in any of his statements to this witness that the loss could have happened at any other place, and stated that the parking lot was the only place it could have occurred. Detective Otto Hansen, also connected with the Davenport police department, testified that he and Wm. Kruse went down to the parking lot at Third and Main Streets with Thorsen who told them (Kruse and Hansen) that the jewelry was stolen out of his car at this parking lot. John Hellstrom, an attorney with offices in Davenport, testified on behalf of defendant that he made an investigation with reference to this jewelry loss on behalf of the owner of the parking lot; that he requested Thorsen to come to his office and discuss the matter, which Thorsen did on the morning of September 17,1952, and in the course of his conversations with Thorsen, he, Thorsen, said the keys to the trunk of his car were in his possession, that he never loaned or gave them to anybody; that the only place he thought the theft could have occurred was in the parking lot; that when he left the parking lot the previous afternoon, he drove directly to his sister-in-law’s home where he discovered the loss, and in answer to the question of the attorney whether he made any stop enroute, Thorsen replied: “No, it was just normal driving, normal driving conditions.”

The foregoing is a fair resume of the evidence pertinent to this appeal. Counsel for appellant insists that the policy issued by appellee insured it against all risks of loss or damage; that its complaint alleged and the evidence proved a loss explicitly insured against, and that appellee failed to meet its obligation to prove that the loss was excluded from the policy. Counsel for appellee argue that the complaint alleged that the jewelry covered by the policy was stolen by an unknown person or' persons from an automobile owned by Thor-sen while he, Thorsen, one of plaintiff’s salesmen, was actually in the automobile near the Bock Island Arsenal and as the answer of defendant denied these allegations, the only issue tried in the lower court was where the alleged loss took place. Counsel insist that plaintiff had the burden of proving the material allegations of its complaint and having failed to do so, the only judgment warranted by the evidence was the judgment rendered by the trial court.

The experienced trial court in making the findings he did stated that the contention of the plaintiff at the trial was that the theft occurred when Thorsen’s car stopped near the Bock Island Arsenal; that the case was presented to him as a question of fact; that he did not give much credence to the testimony of Oscar J. Kraft; that the parking lot, while Thorsen was having his brief lunch, and his car was located therein as the evidence disclosed it was, afforded a perfect time and place for a jewel theft; that when Thorsen decided he had been robbed, his first thought would be as to where it might have taken place and he thought it occurred at the parking lot; that he (the court) did not believe the theft occurred near the Bock Island Arsenal as he deemed it highly improbable that a person or persons could go to the first car in a string of occupied cars, open the trunk and remove the cases of jewelry therefrom without observance; that he did not decide the question whether there had been or had not been a theft; that he felt the issue presented was not whether a theft happened, but where it occurred and that the attitude of Thorsen at the time it occurred made its impression on him as a judge.

Under the provisions of the policy upon which this action is based, as applied to the facts appearing in this record, appellant was required to allege that its insured articles of jewelry were lost to it while in an automobile and at the time the loss occurred, a permanent employee of the plaintiff or a person whose sole duty it wag to attend such vehicle was actually in or upon such vehicle. Appellant did so. Its complaint alleged that its salesman, Thorsen, had in his possession at a date when the policy was in effect, certain described jewelry belonging to the plaintiff; that this jewelry was stolen near the Bock Island Arsenal by an unknown person or persons from an automobile owned by Thorsen while he, Thorsen, was actually in said automobile. The evidence fell far short of proving these allegations. The trial court did not decide whether there was a theft or not. It did find that it was highly improbable that the loss occurred at the place alleged in the complaint and concluded from the evidence that it did not occur there and that was the only place it could have occurred when a permanent employee of the plaintiff or a person whose sole duty it was to attend the automobile in which the jewelry had been placed was actually in or upon such vehicle. The findings of a trial court without a jury will not be set aside unless manifestly against the weight of the evidence. (Groldfarb v. Maryland Casualty Co., 311 Ill. App. 568, 572.) The evidence found in this record sustains the findings and judgment of the trial court.

Counsel for appellant state that the question to be resolved by this court is whether a loss within the meaning of the policy took place and insist that the evidence discloses there was a loss and counsel therefore concludes that plaintiff is entitled to judgment unless defendant proved by the greater weight of the evidence that the case fell within an exception contained in the policy. In an action upon an insurance policy the plaintiff must plead and prove that his loss was caused by one of the perils insured against. (Swan v. Union Ins. Co., 16 U. S. (3 Wheat.) 168; Rubenstein v. Fireman’s Fund Ins. Co., 339 Ill. App. 404, 407.) In the instant case it devolved upon appellant to allege and prove that its loss was covered by the provisions of the policy under which it seeks to recover. Appellant did prove a loss but failed to prove that its loss was covered by the provisions of the policy upon which this action is based. It attempted to do so, and its theory in framing its pleadings and in submitting evidence in support thereof was that the jewelry was taken from the trunk of Thorsen’s car near the Bock Island Arsenal. The conclusion of the trial court that this was “highly improbable” is supported by the following : (1) The evidence does not show that the trunk of Thorsen’s car when it stopped at the Bock Island Arsenal crossing contained the stolen jewelry. (2) This trunk, at that time, was locked. (3) This car was the first in a line of cars stopped to yield the right of way to cross-traffic. (4) A policeman was 150 feet away facing the front of Thorsen’s car. (5) Cars were lined up behind Thorsen’s car bumper-to-bumper. (6) The door of the trunk had to be “slammed” in order to make sure it was locked. (7) Thorsen never heard any noise from his trunk while so stopped. (8) The trunk was locked the next time he stopped when he arrived at the home of his sister-in-law. (9) When traffic was resumed, after the stop near the arsenal, Thorsen was alert and moved upon the signal to proceed. (10) Thor-sen’s immediate return to the parking lot after discovering his loss and his report of the theft to the attendants there. (11) Thorsen’s subsequent statement that the loss occurred while his car was in the parking lot and his further statements, written and oral, that he made no stops on his drive from the parking lot to the home of his sister-in-law and that traffic was normal.

The trial court correctly held that the allegations of the complaint were not sustained by the evidence, and its judgment is affirmed.

Judgment affirmed.

CBOW and EOVALDI, JJ., concur.


author: MR. JUSTICE EOVALDI

text:
    James P. Moore, Administrator of Estate of John Gable, Deceased, Appellant, v. Karl Daydif, Appellee.
    Gen. No. 10,807.
    Second District.
    November 14, 1955.
    Released for publication December 1, 1955.

      James P. Moore, and Wm. J. Crowley, both of Waukegan, for appellant.
    Snyder, Clarke & Dalziel, of Waukegan, for appellee; Gerald C. Snyder, of Waukegan, of counsel.
   MR. JUSTICE EOVALDI

delivered the opinion of the court.

James P. Moore, as Administrator of the Estate of John Gable, deceased, commenced a suit in the Circuit Court of Lake County against Karl Daydif to recover damages caused by the injuries sustained to John Gable in an accident that occurred at Blanchard and Sheridan Roads in Waukegan, Illinois. A trial was had before a court and jury that brought in a verdict of not guilty. The plaintiff filed motions for a new trial and for judgment notwithstanding the verdict. Both of these motions were denied. Judgment was entered on the verdict and this appeal has been taken from that judgment.

The complaint charges that on the 5th day of October, 1952, the defendant was in possession and control of an automobile which he was then and there driving in a southerly direction on Sheridan Eoad, a public highway in the County of Lake and State of Illinois; that plaintiff’s intestate, John Cable, was a pedestrian crossing the said highway in a westerly direction on said road, and that he was in the exercise of due care and caution for his own safety, and for the safety of others at the time and place aforesaid. The complaint then alleges numerous acts of negligence and carelessness of Karl Daydif in the manner in which he drove his automobile, and that by reason of the aforesaid acts of negligence on the part of the defendant, his automobile struck the said John Cable and injured him, and from such injuries he died. The plaintiff asked for damages in the sum of $20,000.

The defendant filed his answer in which he denied all acts of negligence on his part, and denied that the plaintiff was in the exercise of ordinary care and caution for his own safety at the time he was injured. The appellant now contends that the defendant’s attorney was guilty of improper conduct at the trial of the case, and that the Court committed reversible error in allowing the defendant to offer proof that plaintiff’s intestate was intoxicated at and immediately prior to the accident, which caused his death,, and that the Court erred in giving the instructions to the jury. We will first consider the instructions. Instruction No. 21 is as follows:

“21. If you believe from the evidence, under the instructions of the Court, that the automobile being driven by Karl Daydif was suddenly and without any negligence or fault on his part, placed in a position of danger, then in order to charge KLarl Daydif with the duty to avoid the collision, the plaintiff must show by a preponderance of the evidence that the circumstances were such that Karl Daydif had time and opportunity to become conscious, by the exercise of ordinary care, of the facts giving rise to such duty and a reasonable opportunity to perform it.

“And if you further believe from the evidence under the instructions of the Court, that the circumstances as shown by the evidence did not charge Karl Daydif with the duty as thus defined, or if you believe from the evidence, under the instructions of the Court, that Karl Daydif did not have a reasonable opportunity to perform, by the exercise of that degree of care elsewhere required in these instructions, such duty as thus defined, then you should find Karl Daydif not guilty. (Civen.)” This instruction is erroneous for several reasons. The first, that there is not sufficient evidence in the record on which to sustain the giving of this instruction. The evidence shows that John Cable had alighted from a bus and started to cross the highway with two other men; that the other two men got across safely; that Cable was standing in the center or north-bound lane of traffic on Sheridan Road; that defendant’s car was following another car; that the first car turned off the road to the right and did not cause any damage, but defendant’s car struck the deceased with its right front headlight. The evidence further shows that at one time John Cable was standing on the black line, or center of the pavement and took a step or two backward before he was struck. What is meant by the phrase “that the automobile being driven by Karl Daydif was suddenly and without any negligence or fault on his part, placed in a position of danger”? It is not the danger to the automobile, but the danger must be to the driver of the automobile. This instruction ends that under certain circumstances “they should find the defendant not guilty.” This being a peremptory instruction, it should contain every 'element necessary to find the defendant not guilty. Defendant’s Instruction No. 37 is also what is commonly called a sudden danger instruction, but in the instant -case.it is not applicable. •

At the request of the defendant, the Court gave to the jury ten: peremptory instructions, eight of them under certain conditions directing them to find the defendant not guilty — two of them that the “plaintiff could not recover.” This practice has been repeatedly condemned by all of our Appellate Courts. Stone v. Warehouse & Terminal Cartage Co., 6 Ill.App.2d 229 at page 236; Triolo v. Frisella, 3 Ill.App.2d 200. This Court in the case of Baker v. Thompson, 337 Ill. App. 327, stated as follows: “The issues presented in this case were simple and did not require the giving of nineteen instructions to inform the jury of the law applicable thereto. ‘The practice of giving an excessive number of instructions has been repeatedly condemned. (Citing cases)’ There could be only one purpose in having the trial court read to the jury seven different times a pronouncement that ‘the plaintiff must be free of contributory negligence,’ and that was to unduly prejudice the jury against the plaintiff. The jury could very easily have concluded that the trial judge was making another argument in behalf of the defendant. It is not unnatural for a jury to have great respect for the wisdom of the trial court. Likewise it is not unreasonable for them to adopt the views that the court apparently entertains. When the court tells them repeatedly that ‘the plaintiff cannot recover’ or that ‘they must find the defendant not guilty,’ the jury may believe that the court is of the opinion that the verdict should be for the defendant. No one coming into our courts for redress of wrongs done them should be required to bear the onus of this disadvantage.” What we said in that case is applicable here. It was error to give so many peremptory instructions.

Contending that evidence as to intoxication of plaintiff’s intestate is admissible only where defendant pleads this as an affirmative defense, appellant relies on the case of Blake v. Ewers, 341 Ill. App. 382 (Abstract), wherein this court pointed out the controversy which could have been avoided had this been done. That was an unusual ease in that the jury, after finding defendant not guilty, added: “That such result was due to the negligence of both the defendant and the plaintiff.” The complaint was one for wanton and wilful misconduct. The court commented as follows: “This unusual verdict prompts the thought that the jury determined that the plaintiff’s right to recovery was barred by his own negligence.” The court further commented on the testimony of one John Matalón, whom appellant labeled a surprise witness, who testified as to the intoxication of plaintiff, stating as follows: “Plaintiff made a motion to strike this testimony on the ground that it had never been intimated, either in the pleadings or opening statement, that defendant was contending that plaintiff was intoxicated at the time of the accident. . . . Appellee’s counsel contends that he stated in his opening statement at the trial that he was going to make proof of plaintiff’s intoxication. Counsel for appellant asserts that this is not true, and he filed affidavits in support of his motion for new trial contradicting the same. On the trial, defendant’s counsel did not question plaintiff in regard to his drinking just prior to the accident.”

In said Blake v. Ewers case, several other affidavits — demonstrating newly discovered evidence —were filed by plaintiff-appellant supporting the amended motion for new trial. The Court, also, had occasion to criticize counsel because of the large number of instructions read to the jury on behalf of the defendant. As stated in White v. Seitz, 342 Ill. 266 at page 270: “A judicial opinion, however, like a judgment, must be read as applicable only to the facts involved and is an authority only for what is actually decided.”

In the instant case, Glenn Earl Stites, 49 years of age, testified for defendant that he was married, had been living at one place with his family for ten years, and had been a bus driver for the Waukegan-North Chicago Transit since March, 1926. He testified as to the condition of deceased, There was no objection to his testimony. He testified that he was driving a bus in the early evening in a southerly direction and Mr. Gable got on; he was normal. “When he got off the bus, he asked me when the last bus left for the north trip. I saw him again at 12:14 in the morning on October 5, 1952, at Washington and Genesee Street. He had difficulty getting up the steps; he was unsteady; he had difficulty in paying the fare, getting the fare ready. In my opinion, the man was intoxicated. When he got off he was slow and unsteady; he was drunk at that time.” This witness was cross-examined at length by plaintiff’s counsel as to the condition of deceased..

Appellant states in his brief: “If intoxication is to be suddenly interjected into the trial how can. the plaintiff be prepared to meet it?” An examination of' the record in this case convinces us that this matter was not suddenly brought into the case and that plaintiff-appellant was not completely unaware of such facts. The answer filed December 1, 1952, alleged that deceased “recklessly . . . darted back, forth and about upon said State Highway, in complete disregard for traffic . . . .” On March 22, 1953, plaintiff’s counsel went to the home of the witness, Stites, and in his own handwriting took a statement in which Stites said that he observed the condition of the deceased at about 12:23 a. m., that deceased had difficulty in getting on the bus and was unsteady on his feet, and staggered: In July, 1953, previous notice having been given, the deposition of Gilbert Wedekind was taken and plaintiff’s counsel asked this witness if he noticed the deceased “wobble” and the witness replied' “he walked kind of funny like, like he might have been drunk.”

The complaint in this case alleged that the plaintiff’s intestate was in the exercise of due care and caution for his own- safety and for the safety of others at the time and place aforesaid. The defendant in his answer denied this allegation. The burden was therefore upon the plaintiff to prove that his intestate was in the exercise of due care. Evidence refuting this material allegation of the plaintiff’s . complaint is competent and proper. We find no error in the admissibility of the evidence as to intoxication in this case.

A police officer was called to testify on behalf of the plaintiff, and the defendant’s attorney in the presence of the jury, insisted that the report that was made by the police officers at the time they made their investigation of this accident, should be read in evidence. The trial court very properly sustained the objection to this offer (Paliokaitis v. Checker Taxi Co., 324 Ill. App. 21 at page 25-26; Enderle v. Lindsay, 351 Ill. App. 271; Branch v. Woulfe, 300 Ill. App. 472), but the attorney insisted that it should be ádmitted. The same error will probably not be committéd at the next trial. For the reasons above stated, the judgment of the trial court is hereby reversed and the cause is remanded for a new trial.

Reversed and cause remanded.

DOVE, P. J., concurs.


author: PRESIDING JUSTICE LEWE.

text:
    The Craftsmen Finance Company, Appellant, v. Landfield Finance Company, Appellee.
    Gen. No. 46,510. (Abstract of Decision.)
    First District, Third Division.
    September 21, 1955.
    Released for publication November 23, 1955.

      Charles D. Snewind, for appellant;
    Koven, Koven & Salzman, for appellee;
    Henry H. Koven, and Paul Homer, of counsel.
   Opinion by

PRESIDING JUSTICE LEWE.

Not to be published in full.


author: JUSTICE CULBERTSON.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Tilden Deck, Defendant-Appellant.
    Term No. 55-O-8. (Abstract of Decision.)
    Fourth District.
    November 1, 1955.
    Released for publication December 5, 1955.
    Thomas J. Yockey, for defendant-appellant;
    J. A. Eaton, State’s Attorney, Jasper county, for plaintiff-appellee.
   Opinion by

JUSTICE CULBERTSON.

Not to be published in full.


author: PRESIDING JUSTICE DOVE.

text:
    Klemp Metal Grating Corporation, Plaintiff-Appellee, v. Edwin Pratt’s Sons Co., Defendant-Appellant.
    Gen. No. 10,875. (Abstract of Decision.)
    Second District.
    November 5, 1955.
    Released for publication November 22, 1955.
    Granger, Beckers & Snow, for defendant-appellant;
    Shapiro and Lauridsen, and Thomas A. Nutting, for plaintiff-appellee.
   Opinion by

PRESIDING JUSTICE DOVE.

Not to be published in full.


author: JUSTICE CROW.

text:
    Samuel C. Lurie, Plaintiff-Appellant, v. Julia Dombroski, Defendant-Appellee.
    Gen. No. 10,881. (Abstract of Decision.)
    Second District.
    November 10, 1955.
    Released for publication November 26, 1955.

      Harry H. Ruskin, and Joseph. Rosenbaum, for appellant;
    Ellis, Hamilton & Geister, for appellee.
   Opinion by

JUSTICE CROW.

Not to be published in full.


author: PRESIDING JUSTICE DOVE

text:
    P. W. Gustafson, etc., Appellee, v. Libertyville Motors, Inc., etc., et al., Appellant. Libertyville Motors, Inc., etc., Counter-Claimant-Appellant, v. P. W. Gustafson, et al., Counter-Defendants-Appellees.
    Gen. No. 10,867. (Abstract of Decision.)
    Second District.
    November 14, 1955.
    Released for publication December 1, 1955.
    Boyles & Fisher, for appellant;
    Robert L. Huttner, and Winston, Strawn, Black & Towner, for appellees;
    Frank - B. Gilmer, and David Keegan, of counsel.
   PRESIDING JUSTICE DOVE

delivered the opinion of the court. Not to be published in full,