[7] It was not necessary, as contended by defendant in error, to expressly allege in the second plea that the default of the premium and the lapse of the policy occurred during the lifetime of the assured. The allegation in the plea that the premium due January 12, 1911, had not been paid at that time or since that time and was not paid within the month of grace provided for in the policy, and that by reason thereof said policy was not in force and effect at the time suit was brought, renders such an allegation unnecessary. No premium in the policy could become due after the death of the deceased, and the policy could not lapse by reason of the failure of the assured to pay any premium unless there was a failure to pay it in the lifetime of the assured and within the month of grace allowed by the policy.

[8] By the sustaining of the demurrer to plaintiff in error's second plea it was warranted in standing by said plea and in de

tion that the defensive matter set forth in said special plea is provable under the general issue. The authorities on common-law pleading do recognize and lay down the rule that the defendant is at liberty to plead any matter which does not amount to the general issue-i. e., any matter that the plaintiff is not bound to prove to maintain his case-although such matter may be proved under the general issue. Chitty, after making such a statement in substance, further says that in actions of assumpsit, generally, all matters of discharge of the action may be pleaded specially. 1 Chitty's Pl. *515. This court in several decisions has apparently recognized such practice, but held the evidence admissible either with or without such a plea by the defendant. Where a demurrer to such a plea, however, is sustained by the court on the ground that it amounts to the general issue or because the matter pleaded is admissible under the general issue, and opportunity is given the defendant to prove the matters un-clining to offer to introduce any evidence der the general issue, he would have no cause for complaint at the overruling of the special plea, whether it amounted to the general issue or not. This court, however, is committed to the rule that the defense of forfeiture of an insurance policy by reason of the failure to pay subsequent premiums, or of the violation of other conditions subsequent, must be alleged by way of special plea and proved by a defendant insurance company. Continental Life Ins. Co. v. Rogers, supra; Modern Woodmen of America v. Davis, 184 Ill. 236, 56 N. E. 300; Helm v. Commercial Men's Ass'n, 279 Ill. 570, 117 N. E. 63. In many other jurisdictions the same rule has been laid down, and Bacon states that such is the well-settled rule of pleading in such cases, and for that reason cites only a few of the authorities. 2 Bacon on Life and Accident Insurance, § 630. See, also, 25 Cyc. 920, 924. The second special plea was a good plea and stated a good defense in bar of defendant in error's suit.

thereunder or to offer to introduce any evi-
dence that would have been admissible under
that plea. There was no intimation by the
court, so far as the record shows, that it
might introduce such evidence under the gen-
eral issue. As it was not admissible under
the general issue, plaintiff in error was war-
ranted in the supposition that the court
would not admit such evidence under the gen-
eral issue. Plaintiff in error was therefore
prevented from making its said defense by
the action of the court in sustaining the de-
murrer.

The judgments of the circuit and Appellate
Courts must therefore be reversed, and the
cause remanded to the circuit court.
Reversed and remanded.

(282 III. 143)

FLETCHER et al. v. OSBORN et al (No. 11794.) (Supreme Court of Illinois. Dec. 19, 1917. Rehearing Denied Feb. 7, 1918.)

1. SPECIFIC PERFORMANCE 121(6) ORAL CONTRACT TO TRANSFER LAND-SUFFICIENCY OF EVIDENCE.

[6] We cannot assent to the proposition laid down by defendant in error that there could be no forfeiture declared upon the policy unless there was a failure to pay more In a suit for specific performance of an than one premium when due. The positive oral contract made by deceased during his lifeprovision of the policy is, "a failure to pay time to give his entire estate in return for servpremiums or any indebtedness to the compa-ices during life, evidence held to establish the ny when due shall render this contract void." The plain meaning of that provision is that all premiums must be paid when due and that all indebtedness must be paid when due.

The failure to pay any premium when due is a failure to pay all the premiums, and any premium, when due, is an indebtedness to the company within the meaning of that provision. The simple provision in a policy that it shall be invalid unless the premiums are paid when due is sufficient to work a forfeiture when one premium is not paid when due. 2 Bacon on Life and Accident Insurance, § 453, and authorities cited.

proof, and a finding of the chancellor to the concontract by clear, explicit, and satisfactory trary was not warranted.

2. CONTRACTS 111- PUBLIC POLICY-RESTRAINT OF MARRIAGE.

stay with him and render services and remain A contract to give land to another if he will single during the lifetime of the employer is not void as being in restraint of marriage; the provision relating to marriage being merely an incident to the main object.

Appeal from Circuit Court, Fayette County; William B. Wright, Judge,

In the matter of the estate of Granville V. E. Fletcher, deceased. Bill by Cyrus N. Fletcher against Granville Osborn for the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

partition of the real estate. Grant Fletcher, as to the compensation for his years of servon being made party defendant, answered and filed a cross-bill. From a decree dismissing the cross-bill and granting the prayer of the original bill, Grant Fletcher appeals. Reversed, with directions to dismiss the original bill and grant the relief prayed in the cross-bill.'

Brown & Burnside, of Vandalia, for appellant. John H. Webb, of Vandalia, W. B. Rogers, Fred A. Meyers, of Vandalia, and T. W. Hoopes, of Toulon, for appellees.

ice, and deceased entered into a contract and agreement with him, in and by which appellant agreed to remain with deceased during the remainder of the lifetime of deceased and care for his real estate and look after all his interests in a general way, and that deceased agreed and promised appellant that in consideration of the years of service rendered theretofore by him, and in consideration of appellant's promise to remain with and take care of deceased and his property so long as deceased should live, he would convey and transfer to appellant all the property, real COOKE, J. Granville V. E. Fletcher died and personal, that he owned at that time or in Fayette county January 20, 1915, at the might thereafter acquire, and the benefits, age of 72 years. He left as his only heirs at use, and right to sell and convey said lands law two uncles, Cyrus N. Fletcher, who lived and personal property should accrue to and at St. Elmo, in Fayette county, a brother of vest in appellant at the death of deceased; the father of deceased, who was then 74 that, pursuant to said contract, appellant reyears of age, and Granville Osborn, who re- mained with and cared and provided for desided in Ohio, a brother of the mother of de- ceased; that the family consisted of appelceased. Cyrus N. Fletcher and deceased were lant and deceased, and that from that time not on friendly terms, and, according to the until the death of deceased appellant gave all testimony of Cyrus, had not spoken to one his time and labor to the management, conanother for more than 10 years prior to the trol, and care of deceased and of his farm death of deceased. No last will and testa- and personal property; that for 10 years prement was found among deceased's effects, and ceding the death of deceased appellant had Cyrus N. Fletcher was, appointed adminis- the absolute control of all his real and pertrator of the estate by the probate court of sonal property, residing upon the land with Fayette county upon his own petition. The deceased, renting certain portions of it and existence of Granville Osborn was unknown collecting the rents therefor, employing and at that time to Cyrus N. Fletcher, who de- discharging men who worked upon the premscribed himself in the petition as the sole ises, selling the crops grown thereon, and at heir of deceased. The deceased died seised all times leaving with deceased the proceeds of 642 acres of land near St. Elmo and per- arising therefrom, to be held and enjoyed by sonal property of the value of $6,000 or him during his lifetime; that during that $7,000. Shortly after his appointment as ad- time deceased did not interfere with appelministrator Cyrus N. Fletcher filed his bill lant's possession of the land or of the perin the circuit court of Fayette county for the sonal property, but at all times said that appartition of said real estate, making Granville pellant was the owner of all of said land and Osborn the only defendant, alleging that each personal property; that deceased stated to was the owner of an undivided one-half in- him that he had executed the necessary paterest in the real estate of which Granville pers to transfer title to appellant, and that V. E. Fletcher died seised. After the filing of at his death the title, possession, and right the bill Grant Fletcher, the appellant, asked to use and dispose of all the property, real leave to be made a party defendant, and, the and personal, would be found in appellant. same being granted, he filed his answer to The bill then alleges that the deceased rethe bill, and also filed a cross-bill. By his peatedly told his intimate friends that said cross-bill he alleged that about the year 1877, real and personal property belonged to apwhen he was 11 years of age, his father and pellant and that he had no interest therein mother both being dead, he was taken by the other than the use thereof during his natural deceased and his mother into their home, life; that during all these years the deceased where he lived as a member of the family paid nothing to appellant except his necesuntil the death of the mother of deceased; sary living expenses, and on one occasion the that the deceased was a bachelor, never hav- sum of $1,000; that from time to time he ing married; that he prevailed upon appel- gave appellant certain articles of personal lant to remain with him and work for him. property in pursuance of the contract; that take care of the land and the crops growing appellant has fully performed his part of the thereon, and assist in every way in the man- agreement by giving to deceased 38 years agement of the farm, live stock, and person- of service, and is entitled to the specific peral property; that deceased did not pay ap-formance of the contract so entered into and pellant any sum of money as wages, but al- to have all the lands of which Granville V. ways promised that he would take care of him and give him lands and other property; that in February, 1898, appellant was desir

E. Fletcher died seised conveyed to him free and clear from the rights or interests of the other parties to the proceedings. The bill

ance of the contract and that the court de- mechanics. These witnesses testified to concree the execution of sufficient deeds of con- versations had with the deceased during the veyance to appellant of the real estate of last 25 years of his life. Many of them teswhich Granville V. E. Fletcher died seised. tified to repeated conversations on the subThe defendants in the cross-bill answered, ject of the agreement or contract which the the cause was heard by the chancellor, and a deceased stated he had entered into with apdecree entered finding that appellant had pellant. The general effect of this testimony failed to establish the contract set up in his was that Granville V. E. Fletcher stated cross-bill by clear, explicit, and satisfactory that he had made an agreement with appelproof, dismissing the cross-bill for want of lant that, if appellant would remain with equity, and granting the prayer of the orig-him and care for him and take charge of his inal bill. This appeal has been perfected property and superintend the farm during from that decree.

The appellant sought to prove the existence of the contract and its terms by declarations made by Granville V. E. Fletcher and by appellant during the lifetime of Granville V. E. Fletcher and by the conduct of the parties to the contract. It is insisted on the part of appellees that proof of this character is insufficient. On numerous occasions we have been called upon to determine the quantum of proof required in cases of this kind and the competency of the evidence offered. The rules applicable are thus stated in Kane v. Hudson, 273 Ill. 350, 112 N. E. 683, together with the authorities there cited in support thereof:

his lifetime, he should have whatever property the deceased possessed at the time of his death. One witness testified that in 1898 the deceased told him at the farm that he had entered into an agreement with appellant that, if he should stay there and remain single until the deceased should die, he was to get everything that was there. The same witness testified that in the fall before Fletcher died he had a conversation with him at St. Elmo in which he stated that he did not own anything on the farm but the horse he was driving; that appellant owned everything else; and that the deceased further stated that appellant had about filled his part of the contract, and he was satis"If an oral contract to convey land has been fied he would stay with him until he died. made, and there has been such performance in Another witness, a hardware merchant at reliance upon the contract as will take it out of St. Elmo and a man who had been intimatethe statute of frauds, it will be enforced by a court of equity. Such a contract must be clearly acquainted with deceased for more than and definite and unequivocal in its terms, and it 50 years, testified that deceased often came must be clearly and satisfactorily proved. It is into his private office and discussed his afindispensable that the acts done in performance fairs with him, and at one time, 25 years prior to his death, the deceased told him that, if appellant stayed with him as long as he lived, he had agreed with him that he should have all the property deceased had, both real and personal; that deceased had discussed the same matter with him a number of times since, the last conversation being about a year before his death, at which time he repeated, in substance, the statement he had made on the first occasion. This witness further testified that he was in the habit of visiting frequently at the deceased's home on the farm, and that on one of these occasions he had a conversation with deceased, in the presence and hearing of appellant, in which the deceased said, "That fellow there," pointing to appellant, "owns The principal question raised is one of everything here," and stated further that apfact, whether the evidence is sufficient to pellant was to have everything that was prove clearly and satisfactorily that a con- there. Two witnesses testified to statements tract was entered into and what its terms made by the deceased in the office of a powere. Twenty witnesses were called to tes- lice magistrate in St. Elmo about two months tify on behalf of appellant. These were all before he died, in which he stated that he persons who lived in St. Elmo or in that vi- was going to give all his property to appelcinity and who knew Granville V. E. Fletch-lant and that he had it all fixed. Another er well in his lifetime, and some of them testified that he stopped frequently at the were among his most intimate friends. They home of deceased, and that on one occasion were all disinterested witnesses, and were the deceased told him that he did not own engaged in various pursuits. Among them were farmers living in the vicinity of the Fletcher farm, merchants engaged in business in St. Elmo, a physician, a minister, and

of the contract shall be referable to the contract alone, and to have been done in performance of it. It is not necessary that the contract shall be proved by the testimony of any witness who heard it made, and it may be proved by declarations of the parties not in the presence of each other, together with evidence of acts and conduct of the parties which shows that the agreement was made, but it cannot be proved by declarations or acts of only one party to the alleged contract not binding upon the other. Geer v. Goudy, 174 Ill. 514 [51 N. E. 623]; Seitman v. Seitman, 204 Ill. 504 [68 N. E. 461]; Standard v. Standard, 223 Ill. 255 [79 N. E. 921; Watson v. Watson, 225 Ill. 412 [80 N, E. 3321; Daly v. Kohn, 234 Ill. 259 [84 N. E. 901]; Dalby v. Maxfield, 244 Ill. 214 [91 N. E. 420, 135 Am. St. Rep. 312]; Gladville v. McDole, 247 Ill. 34 [93 N. E. 861; Willis v. Zorger, 258 Ill. 574 [101 N. E. 9631; Christensen v. Christensen, 265 Ill. 170 [106 N. E. 6271; Lonergan v. Daily, 266 Ill. 189 [107 N. E. 460]."

any property; that it all belonged to appellant; and that all he owned was the old horse and buggy. Another testified that 14 years prior to his death he had worked for

through with it. The witness further testified that he had another conversation with deceased about 4 years before he died, in which he stated that appellant would have plenty to do him after he died, as he had it fixed so that he would get all his property. Another witness testified that on Thanksgiving Day prior to the death of deceased he asked his permission to hunt quail on his farm, and that deceased told him he would not allow his best friend to do that, but when he was through with it appellant could do as he pleased about it. Another witness testified that at one time he attempted to rent land of deceased, and that he informed him he would not rent his land to any one as long as he lived, but when he was through appellant could do as he pleased. Another witness testified that during the summer before he died the deceased informed him that he and appellant had a contract that, if ap

the deceased for a year; that on one occa- | did; that deceased said he would fix it anysion deceased said, referring to appellant, way so appellant would get it when he was "There is a fellow, if he stays with me until I am dead and gone, gets everything I have got ;" that he stated that appellant was to stay single while he was there, and if he stayed with him and remained single, he was to have everything he owned, and that he intended to make a will to that effect. Another witness, a minister, testified that he heard the deceased state to a sister of appellant shortly before her death, and when she was suffering from her last illness, that she need not worry about her brother's condition in life; that he had fixed everything; and that appellant was to have everything he had. Another witness testified that about 15 years previously deceased had talked to him about the disposition of his property, and stated that he had arranged with appellant that, if he stayed with him and remained single as long as deceased lived, when he was done with his property appellant should have all of it; that the de-pellant stayed with him as long as he lived ceased made the same statement to him, in substance, on several occasions; that the last time he mentioned it to him was about 2 years prior to his death, on which occasion he said that everything he had was appellant's, and that everything down there (referring to the farm) belonged to appellant. Another witness, a retired farmer, testified that he accompanied the deceased to St. Elmo on one occasion about a year before he died, when he stated to him that he had given everything to appellant, and that he was to have everything he owned if he stayed with him and remained single until he died. Another witness testified that on one occasion when he was attempting to buy some mules from deceased he informed him that he would have to see appellant, as all the property belonged to him. Another witness testified that he had known deceased for 10 years, and deceased had boarded at his hotel 4 or 5 years prior to his death; that appellant came to see deceased frequently while he was there; and that deceased stated to him that appellant had lived with him from the time he was 11 years old, and he ought to be attentive to him because he was to get everything he had after he was gone. Another witness who owned a farm adjoining that of deceased, and who had known him all his life, testified that about a year before his death he had a conversation with him in which they were discussing appellant and what a good boy he had been to stay with him; that deceased said that appellant had served him there a long time, and he did not do anything at all any more; that he expected some day to give appellant all his property; that at one time he had told appellant he would make him a deed for the land, but they had talked the matter over, and thought it was not the best thing to do, as appellant might die before he

he was to get everything he had. Another witness, who owned an adjoining farm and had known the deceased all his life, testified that in 1914 deceased came to him and told him that appellant wanted to see the witness about getting him to put in his part of a division fence; that appellant wanted the fence through, as he desired to use the land for pasture; that the witness told deceased he would not put in the fence, and deceased then asked him to see appellant; that he talked with appellant, and finally agreed with him what part he was to build and what part appellant was to build; that afterward deceased told him whatever arrangement he made with appellant was satisfactory to him; that he was allowing appellant to fix things to suit himself, as then, maybe, it would suit him better after a while; that he had things already fixed that way, and asked the witness to say nothing about that for the present; that after the fence was fixed the witness asked the deceased to come out and see how he liked what they had done, and deceased remarked, "You know what I told you." Another witness testified that the fall before he died deceased told him that all the property he owned then was a horse and buggy, and that all the other property belonged to appellant; that he did not know how long he was going to live; that he had arranged everything; that he had fixed out the papers to appellant, and appellant was to get everything he had. Another witness testified that deceased told him during the last 4 or 5 years of his life that he had turned everything over to Grant; that he did not own anything any more except his horse; that he had fixed everything for Grant, as he had taken care of the deceased, and he meant to take care of him. A physician living at St. Elmo testified that he had known the deceased and