« ForrigeFortsett »
(148 N.E.) tion, which is the ground of many estoppels, 2. Evidence 419(2) - Parol evidence inadit is held that an infant of years of discretion missible to show consideration for deed, should be estopped when proceeding to re
where effect would be to vary obligation of gain possession of an estate when he by his
written covenant. conduct encouraged a purchaser to buy the es Though parol evidence may be introduced tate of another without asserting any claim to show that true consideration for deed was to it. Bigelow on Estoppel (6th Ed.) p. 627. different from that named in instrument, rule is There is nothing in this case, however, which cutting down or varying obligations of written
inapplicable, where result would have effect of brings the infant, Thomas J. Rhydderck,
covenant. within the exception noted, or any other exception to the rule with which we are fa- 3. Evidence 441 (8)–Parol evidence of al. miliar, that the doctrine of estoppel in pais
leged agreement held inadmissible, where ef
fect would be to vary and cut down.written is inapplicable to infants. Since the doctrine
contract and covenants of deed. of estoppel is inapplicable to the child and
Where defendants by warranty deed covethe element of mutuality is wanting, the doc- nanted against installment of certain special astrine has no application to the facts in this sessments, their failure to pay such assess
ments constituted a breach of covenant, and The decree is reversed, and the cause is they could not prove by parol evidence alleged remanded to the circuit court of Douglas agreement that plaintiff agreed to pay such spe; county.
cial assessments, as effect would be to alter Reversed and remanded.
and cut down written engagement and cove
nants of the deed. FARMER, STONE, and HEARD, JJ. (dis
Appeal from Second Branch Appellate senting). We do not agree with the opinion Court, First District, on Appeal from Municof the court. It is in direct conflict with ipal Court of Chicago; Harry Olson, Judge. former decisions of this court, and while the opinion does not expressly mention them, it
Action by Oscar C. Hagen against Edward overrules them all upon the question of col- J. Lehmann and another. From a judgment lateral attack upon a decree of adoption. of the Appellate Court for the First District, These are: Barnard v. Barnard, 119 Ill. 92, affirming a judgment in favor of plaintiff, 8 N. E. 320; Kennedy v. Borah, 226 III, 243, defendants appeal. Affirmed. 80 N. E. 767; Sullivan v. People, 224 Ill. Butler, Lamb, Foster & Pope, of Chicago 468, 79 N. E. 695; Van Matre v. Sankey, (Beverly B. Vedder and Allan J. Carter, both 148 Ill. 536, 36 N. E. 628, 23 L. R. A. 665, of Chicago, of counsel), for appellants. 39 Am. St. Rep. 196; In the Matter of Bohn, Rathje, Wesemann, Hinckley & Barnard, 308 III. 214, 139 N. E. 64; Hopkins v. Gifford, of Chicago, for appellee. 309 Ill. 363, 141 N, E. 178.
It seems to us stability in the repeated de HEARD, J. This is an appeal from a judgcisions of this court is of great importance, ment of the Appellate Court for the First and only an extreme case, if any, would District, affirming a judgment of the municjustify departure from a rule of 40 years' ipal court of Chicago for $3,651 in favor of standing.
appellee against appellants. The statement of claim filed by appellee alleged that on March 22, 1923, appellants conveyed by war
ranty deed to appellee certain real estate in HAGEN v. LEHMANN et al. (No. 16589.) the city of Chicago. This deed was the stat
utory form of warranty deed, and recited (Supreme Court of Illinois. April 24, 1925. that "for and in consideration of the sum of Rehearing Denied with Modification $150,000 in hand paid" appellants conveyed June 9, 1925.)
and warranted the property to appellee. The
deed also provided:
“This conveyance is made subject to all taxat time of execution of warranty deed.
es and assessments levied after the year 1922
and to any unpaid special taxes or special asIn view of Cities and Villages Act, par.
sessments for improvements not yet completed, 167, providing that special assessments may be and to unpaid installments of special assessdivided into installments, and that first installment shall be due and payable on 28 day of ments which fall due after this date, levied for January of each year, and paragraph 193, fixing
improvements completed.” time when installments become delinquent as The statement of claim alleged that cer1st day of August, held that, under a warranty tain specified special assessments were liens deed executed on March 22, 1923, installments of special assessments which were unpaid at
upon the real estate, and that four installtime of execution of deed were due and payable ments of these special assessments, repreprior to March 220, and were not "unpaid in- sented by warrants, fell due prior to the stallments" which fell due after such date, and date of the deed and that the improvements which conveyance was made subject to.
for which the assessments were levied were For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
(317 III. 227)
completed prior to that date. Appellee by the same act provides that in cities having a this suit sought to recover from appellants population of 100,000 or more the person the amount of these special assessment war-charged with the collection of installments rants, which he paid.
of special assessments shall make report, in Appellants filed an affidavit of merits and writing, to the county collector of the counthereafter an amended affidavit of merits, in ty on or before the 1st day of August in which it is alleged that at the time of the each year. The language of paragraph 167 making of the deed appellee had full and com- is couched in plain and unambiguous terms, plete knowledge of the fact that the install. leaving no room for any other construction ments of assessments covered by the war than that the installments in question were rants for which suit was brought had not due and payable prior to March 22, 1923, been paid; that appellee had in his posses- and that they were not "unpaid installments sion at that time the warrants for which he of special assessments which fall due, after now seeks recovery, which warrants showed this date, levied for improvements completthat they had not been paid. It further al. ed.” The time when the installments became leged that at the time of the making of the due and payable is fixed by paragraph 167, deed it was understood and agreed between while paragraph 193 fixes the time when they the parties that the phrase in the contract became delinquent. reading, "and to unpaid installments of spe  It is contended by appellants that the cial assessments which fall due after this true consideration for a deed may be shown date, levied for improvements completed," by parol evidence, and that for this purpose should include the installments for which the they had a right to show that appellee actualsuit was brought, and that such installments ly agreed to pay an existing incumbrance on fell due after the making of the deed, on the property as a part of the consideration July 31, 1923. The affidavit of merits fur- for the conveyance. It is true, where the isther alleged that as a part of the considera- sue is as to the amount of consideration for tion mentioned in the deed, and as an in- a deed, that parol evidence may be introducducement made by appellee to appellants at ed to show the true consideration although it the time of the making of the deed, appellee. may be different from that named in the inundertook and agreed to pay the unpaid in- strument. Brosseau v. Lowy, 209 Ill. 405, 70 stallments of special assessments represented | N. E. 901; Lloyd v. Sandusky, 203 Ill. 621, by these warrants, and that it was under- 68 N. E. 154. This rule, however, is a genstood that the unpaid installments should eral rule, and one which has exceptions, one be paid by appellee after March 22, 1923, of which exceptions is that it can never be and before August 1, 1923, without any applied where to do so would result in the claim for allowance or reimbursement from introduction of parol evidence which would the appellants. On motion of appellee the have the effect of cutting down or varying amended affidavit of merits was stricken, the obligation of the written covenant. Red. and, upon the election of appellants not to mond v. Cass, 226 111. 120, 80 N. E. 708; Rusplead further, judgment was entered in favor sell v. Robbins, 247 Ill. 510, 93 N. E. 324, 139 of appellee against appellants for the full Am. St. Rep. 342. There is no conflict in amount shown by the affidavit of claim. the rules laid down in the four cases above
 Appellants' first contention is that un- cited. der the statutes of Illinois the installments  Appellants by their warranty deed of special assessments for the nonpayinent covenanted against the installments of the of which the suit was brought under the cove special assessments in question, and their nants of warranty in the deed were payable failure to pay those assessments constituted at any time between January 2, 1923, and a breach of their covenant. It was there. July 31, 1923, and would not fall due until fore not competent for them to prove the July 31, 1923. The Cities and Villages Act agreement alleged in the affidavit of merits, of this state (Cahill's Stat. par. 167) provides as the only effect of such proof would be to that the cost of improvements which is to be alter, vary, and cut down the written endefrayed by special assessments may by or- gagement and covenants of the deed. Linn dinance be divided into installments, not v. Clark, 295 Ill. 22, 128 N. E. 824. The more than 10 in number, and that “the first court therefore properly struck the affidavit installment shall be due and payable on the of merits from the files and rendered judg. second day of January next after the date ment for appellee after appellants' election of the first voucher issued on account of not to plead further. work done, and the second installment one The judgment of the Appellate Court is year thereafter, and so on annually until all affirmed. installments are paid.” Paragraph 193 of Judgment affirmed.
(148 N.E.) (317 I11. 312)
8. Courts Om 219(8)-Appellate Court may not KOWALCZYK v. SWIFT & CO. (No. 16295.) retain jurisdiction and affirm judgment on one
ground, without reference to constitutional (Supreme Court of Illinois. April 24, 1925. question involved in another ground urged by Rehearing Denied June 11, 1925.)
appellee in support of judgment.
Appellate Court may not retain jurisdiction 1. Master and servant am356–Right of action and affirm judgment on one ground, without
under Compensation Act of minor legally em- reference to constitutional question involved in ployed not affected by his negligence.
another ground urged by appellee in support of
judgment. Right of action for personal injuries under the Workmen's Compensation Act of minor 9. Appeal and error Om878(4)—Appellee held legally employed within section 5 is not affected
properly to have raised constitutional ques. by his negligence.
tion in Appellate Court by assigning cross
errors involving question of validity of stat. 2. Master and servant 356–Common-law utes.
right of action for injuries of minor illegally Appellee held properly to have raised conemployed not affected by his negligence. stitutional question in Appellate Court by as
Common-law right of action for injuries, signing cross-errors involving question of validas distinguished from an action under the ity of statutes, a decision on which was not esWorkmen's Compensation Act, of minor illegal- sential to sustain the judgment in his favor unly employed under child labor statutes (Laws der the view taken by both the trial court and 1897, § 6; Laws 1917, 8 10), in an extrahazard- the Appellate Court. ous business within Workmen's Compensation 10. Courts w219(8)—Mere assertion that Act, & 3, is not affected by his negligence.
constitutional question is involved is not suffi
cient to raise constitutional question. 3. Appeal and error 390—Dismissal of ap. peal for defects in appeal bond, without af.
Mere assertion that constitutional question fording opportunity to file amended bond, is is involved is not all that is required to raise unauthorized.
constitutional question. Dismissal of appeal for defects in appeal 11. Courts Om 219(8)-To raise constitutional bond, without affording opportunity to file question, latter must be at least debatable. amended bond, is unauthorized.
To raise constitutional question, latter must
be at least debatable. 4. Courts em 219(2)-Appellate Court's certifi
cate of importance held not void, as being in-12. Courts em 219(8)-Appellate Court had no sufficient.
jurisdiction to retain and decide case, record Appellate Court's certificate of importance,
of which presented constitutional question, "that this case involves questions of law of
and its judgment was void. such importance, on account of principal and Appellate Court had no jurisdiction to recollateral interests involved, as that it should tain and decide case, record of which presented be passed upon by the Supreme Court," held not constitutional question, and its judgment was void, as being insufficient.
5. Courts Cum 219(8)-Appellate Court has no 13. Appeal and error En 20-Supreme Court jurisdiction to entertain appeal involving
cannot review judgment which Appellate validity of statute raised under assignment of Court had no jurisdiction to render. errors or cross-errors,
Supreme Court cannot review judgment Appellate Court has no jurisdiction to en
which Appellate Court had no jurisdiction to tertain appeal involving validity of statute
render. raised under assignment of errors or cross-er
14. Appeal and error Ow782—That judgment of Appellate Court, appealed from to Su
preme Court, was void for want of jurisdic6. Appeal and error 21, 22-When Appel tion, held not to require dismissal of appeal late Court lacks jurisdiction, latter cannot be
by Supreme Court. waived or conferred by consent of parties.
That judgment of Appellate Court, apWhen Appellate Court lacks jurisdiction, pealed from to Supreme Court, was void for latter cannot be waived or conferred by con
want of jurisdiction, because constitutional sent of parties.
question was involved, held not to require dis
missal of appeal by Supreme Court; under 7. Appeal and error Oms878(4)-Appellee, in such circumstances it being proper to reverse
seeking to sustain in Appellate Court judge and set aside the judgment of the Appellate ment of trial court, not limited to grounds on Court, and to remand the cause to it, with diwhich judgment of trial court was based. rections to transfer the case to the Supreme Appellee, in seeking to sustain in Appellate
Court. Court judgment of trial court, is not limited to grounds upon which the judgment of trial court
Appeal from Third Branch Appellate Court, is based, but may urge in good faith any number First District, on Error to Superior Court, of questions in support of the judgment. ¡ Cook County, Edward D. Shurtleff, Judge.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
Action by Frank Kowalczyk, a minor, by ,cial plea averring that the parties were subJames Deming, his guardian, against Swift ject to the Workmen's Compensation Act, to & Co. Judgment for defendant, and plaintiff which the court sustained a demurrer. sued out writ of error from the Appellate It is not disputed that the meat-packing Court, which affirmed the judgment (233 Ill. and allied industries appellee was engaged in App. 337) and granted a certificate of impor conducting are an extrahazardous employtance and appeal to the Supreme Court. ment and within the prohibition of the Child Judgment of Appellate Court reversed, and Labor Acts, but it is contended by appellee cause remanded, with directions to transfer that the capacity in which appellant was emcause to Supreme Court.
ployed was not of that character; that beCorinne L. Rice and A. H. Ranes, both of cause an employer is engaged in extrahazChicago, for appellant.
ardous business it does not follow that all John B. Kehoe and Brown, Fox & Blum- the departments of its business are extra. berg, all of Chicago (Charles Le Roy Brown, hazardous, and this case was disposed of by of Chicago, of counsel), for appellee.
the trial and Appellate Courts considering
it a question of fact whether appellant's emFARMER, J. This is an action at law by ployment was extrahazardous and illegal, or appellant to recover damages for a personal whether he was employed in a capacity in injury. There was a judgment in the trial which minors over 14 and under 16 might le. court for defendant, and appellant sued out gally be employed. Upon that question the a writ of error from the Appellate Court. proof substantially was that appellee's plant, That court affirmed the judgment and grant- operated for meat packing, manufacturing, ed a certificate of importance and an appeal storing, loading, shipping, and unloading its to this court.
products, occupied a large territory of ground, The injury occurred December 12, 1917. intersected and crossed by streets or passage. The declaration alleged defendant was en. ways, on and along which were laid many rail. gaged in meat packing in the city of Chicago, road tracks for the operation of cars in conwas in control of buildings, yards, and rail nection with appellee's business. Appellant's road tracks, and there were in force divers employment was a messenger boy, to carry ordinances regulating and safeguarding its messages from appellee's office building to the employees, and the ordinances are set out in several houses and places in appellee's yards. hæc verba. The declaration alleged defend- Besides appellee's office building, which is ant's business was designated as extrahaz- near the northeast corner of its plant, there ardous by the Workmen's Compensation Act are a large number of other buildings scat(Smith-Hurd Rev. St. 1923, c. 48, 88 138–172); tered all over the grounds, used for many difthat section 6 of the act of 1897 concerning ferent purposes in connection with appellee's the employment of minors (Laws 1897, p. 90) business, in which power-driven machinery was in full force and effect, and prohibited
was used. These buildings were reached any child under 16 years of age being em- from the office building along streets or parts ployed, permitted, or suffered to work at an of streets on which were railroad tracks for extrahazardous employment, "whereby its the operation of cars and by passageways be. life or limb is in danger, or its health likely tween the buildings. To reach many of them, to be injured, or its morals may be depraved.” passageways occupied by railroad tracks, and The declaration also set out section 10 of the upon which many trucks and other vehicles act of 1917 concerning the employment of were operated, had to be crossed. minors (Laws 1917, p. 511). That section
F. M. Oberg testified that at the time plainprohibits the employment of minors under 16 tiff's accident occurred witness was in charge in numerous specified capacities, and further of the messenger boys at the office building of prohibits their employment “in any capacity appellee, and appellant was under his personwhatever in any employment that may be al jurisdiction. He gave appellant and other considered dangerous to their lives or limbs, i messenger boys instructions as to their duor where their health may be injured or ties. At the time the accident occurred the morals depraved." The declaration also set witness had sent appellant, on what was out section 5 of the Workmen's Compensa- known as the fertilizer route, to deliver let. tion Act, which defines an employee to mean ters and small packages to a number of offices. every person employed by another, includ- A slip was given appellant, designating the ing minors "who are legally permitted to work number of the route, and also prints of each under the laws of this state." The declara- office he was to visit and deliver messages tion then alleged that plaintiff, a minor bc. and packages. Appellant was to visit only tween 14 and 16 years of age, while engaged the places named on the slip, and the slip for in extrahazardous employment, was injured, each place he visited was to be placed on the while in the performance of his duties, as a time clock. His route was down Packers avresult of his employment in violation of the enue to Forty-Second street and from Fortystatutes with reference to the employment of Second street to Harper's dock. The next minors between the ages of 14 and 16 years. place was the fertilizer house, and then the Appellee pleaded the general issue and a spe- , glycerine factory, which was the last place
(148 N.E.) on the fertilizer route. He said he instructed ous, and therefore appellant's remedy was at appellant to follow his orders, and that if he common law, and not under the Workmen's did not do that he would give him a tanning Compensation Act. or discharge him.
Appellee has moved to dismiss the appeal Appellant testified as a messenger boy he (1) for defects in the appeal bond; (2) the delivered messages from the general office Appellate Court has not certified, as required building to all the different offices, the fertil- by law, the grounds for granting the appeal; izing plant, the glycerine house, wool house, (3) appellee by the assignment of cross-errors sausage room, soap house, glue house, smoke in the Appellate Court raised the validity of house, north house, and all the other different a statute and the construction of the Conplaces. Shortly after 4 o'clock on December stitution, 12, 1917, he was instructed to deliver mes  To our minds there is no merit in the sages to the fertilizing plant, which required first and second propositions. There are some him to pass over Packers avenue, on which slight discrepancies in the form of the apcars were moved by locomotive engines, then peal bond, but they are not of a character south to Forty-Second street, running east to affect its validity as an appeal bond; and, and west, on which are operated all kinds of even if they were, we would not be authortrucks and wagons carrying meat and fertil- ized to dismiss the appeal without first giving izer. He walked across the railroad tracks appellant an opportunity to file an amended on Forty-Second street, and his first stop was bond. at Harper's dock, a place from which ship  In its certificate of importance the Apping is done. He then went to the fertilizer pellate Court certified "that this case inbuilding, on Forty-Second street, where wag- volves questions of law of such importance, ons and trucks were running both ways. on account of principal and collateral interFrom the fertilizer building he went to the ests involved, as that it should be passed upglue house, crossing over railroad tracks and on by the Supreme Court," and an appeal was other obstructions. From there he went to therefore allowed on plaintiff giving bond in the glycerine department and wool house. the sum designated by the court, with sureAs he left to return to the office building, he ties to be approved by the clerk. Appellee had to climb off the dock between the soap insists the certificate was void, because it did house and glycerine house. There were box not certify the specific questions to be decars standing on tracks between the glycerine cided as the grounds of granting the appeal. house and the soap house, and he attempted In Chicago, Burlington & Quincy Railroad Co. to pass between the building and the cars, v. Schaffer, 124 Ill. 112, 16 N. E. 239, the Apwhich was a space about 15 inches wide, and pellate Court granted a certificate of imfell into a pool of hot water standing in some portance and an appeal. The certificate depression in the ground and was scalded. stated: He testified that in making the trip he passed
“This case involves a question of law of such over the same route he had been instructed to importance, on account of principal interests, take, except that we do not understand the
as that it should be passed upon by the Suattempt to pass between the glycerine house preme Court; that is, whether the former judgand the box car was the usual route taken ment between the parties is a bar to the preson leaving the glycerine house to return to ent action, it appearing from the evidence that the office building.
the structure complained of was imperfectly [1, 2] All the buildings required to be visit- built, and that there was negligence in the
mode of the construction of said bridge.” ed for the purpose of delivering messages by appellant were occupied by machinery oper This court said its consideration could not ated by electrical or other power, and in de- be confined to a particular question specified livering messages he was required to enter in the certificate, but it could consider any the buildings, pass near the running machin- questions of law properly arising on the recery, and sometimes go to an upper story to ord. In Steele v. Grand Trunk Junction Rail. deliver the messages. Whether or not he way Co., 125 Ill. 385, 17 N. E. 483, the Appelwas negligent in attempting to pass between late Court granted a certificate of importance, the glycerine house and the box car is of no stating the case involved questions of law of importance. If he was legally employed by such importance, on account of principal or colappellee, his right of action under the Work- lateral interests, that it should be passed upmen's Compensation Act could not be affected on by the Supreme Court. It was objected that by his negligence, and if he was illegally em- the certificate should have specifically pointed ployed, in violation of the child labor statutes, out the questions of law which the Appellate his negligence would be no bar to a recovery. Court considered of such importance that We repeat that the right of appellant to re- they should be passed upon by this court, but cover is based upon the contention that un- the court overruled the contention and held der the child labor statutes he could not be the certificate sufficient. In Newman v. Newlegally employed by appellee; that by section man Clock Co., 268 III. 418, 109 N. E. 324, this 3 of the Workmen's Compensation Act ap- court held that, when the Appellate Court pellee's business was defined as extrahazard- granted a certificate of importance and an