text:
    Henry Bockmann and Fred J. Bockmann, Defendants in Error, v. David Davis and Jacob Novashelsky, Plaintiffs in Error.
    Gen. No. 16,674.
    1. Statute of Frauds — verbal renewal of lease. Where a tenant holding over alleges to have paid $200 on a verbal renewal of the lease, such agreement is not taken out of the statute of frauds where it further appears that the $200 was applied in payment of rent due under the old lease and the tenant was notified.
    2. Landlord and tenant — holding over. A mere holding over hy a tenant does not renew the tenancy except at the option of the landlord.
    Error to the Municipal Court of Chicago; the Hon. W. W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the October term, ■ 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    O ’Donnell, Dillon & Toolen, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

In this case a judgment for possession was entered by the Municipal Court in an action of unlawful detainer against the plaintiffs in error, whose written lease of the premises in question had expired. Their defense was that they were holding over by virtue of an alleged agreement for a renewal of their lease for a period of three years, and that an advance payment qf $200 had been made upon, the same at the time of the alleged making of such oral agreement. It was conceded by their counsel, and it is conceded here, that such a contract is within the statute of frauds; but it is alleged that the payment so made, though made over two months before the new lease was to begin, brings this case within the rule that where a tenant holds over after the expiration of his term without any new agreement, and the landlord acquiesces in such holding over and accepts rent from the tenant, a new tenancy is thereby created.

We do not think that the rule mentioned is applicable to the facts of this case. The facts do not, in our opinion, show that there was any consent or acquiescence on the part of the landlord to the holding over. The owner of the premises had executed a written lease to the defendants in error at a higher monthly rental than the plaintiffs in error were paying for the premises in question, on February 21,1910 — three days before the date of the alleged oral contract with the plaintiffs in error. One of the plaintiffs in error testified that about three weeks later, he saw this lease lying on a table in the office of the owner’s attorney; that the attorney then told him that the lease with the defendants in error had not been definitely concluded, and that if plaintiffs in error would pay the higher rental which defendants in error were willing to pay, the owner would renew the lease of plaintiffs in error; but they refused to accede to this proposition, evidently preferring to take the chance of compelling' the performance of their alleged oral contract to renew at the same rent for three years. It also appears, without contradiction, that the owner applied the $200 to the payment of the rent for March and April, and that on March 4, 1910, the owner so notified the plaintiffs in error by letter. If, therefore, it be conceded that when the $200 was paid to the owner by the plaintiffs in error, the owner verbally agreed to give a new lease for three years, as claimed by plaintiffs in error and their witnesses, such an agreement, - being voidable under the statute, could be cancelled by the owner or disregarded at any time before it was fully performed. The action of the owner in applying the payment above mentioned to the payment of the March and April rent and in notifying the plaintiffs in error to that effect, instead of applying it to the payment of rent to accrue under the alleged renewal lease, amounted to a cancellation or repudiation of the voidable contract -previously made, if so made. A partial performance of a contract which is within the statute of frauds is not a good defense in a court of law, and a mere holding over by a tenant does not renew the tenancy, except at the landlord’s election. No such right of election belongs to the tenant. Condon v. Brockway, 157 Ill. 90; Clinton Wire Cloth Co. v. Gardner, 99 Ill. 151; Wheeler v. Frankenthal, 78 Ill. 124; Leavitt v. Stern, 159 Ill. 526; Peck v. McCormick Machine Co., 196 Ill. 295; Gernand v. Schmitt, 89 Ill. App. 547.

The judgment of the Municipal Court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Fitch

license: Public Domain

text:
    Lipman Omensky and Ida Omensky, Defendants in Error, v. George J. Cook Co., Plaintiff in Error.
    Gen. No. 16,687.
    Landlord and tenant — cancellation of lease. Where the lessee of a saloon cancels the lease under a clause therein permitting cancellation “if a saloon license cannot be obtained for said premises,” a directed verdict for rent accruing after such cancellation is proper where it does not appear that a reasonable effort was made to obtain such a license.
    Error to the Municipal Court of Chicago; the Hon. Oscar M. Tor-bison, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Alden, Latham & Young, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

The plaintiff in error, hereinafter called the defendant, has brought this writ of error to reverse a judgment for $80 entered against it in the Municipal Court of Chicago in favor of defendants in error, hereinafter called the plaintiffs.

In J anuary, 1909, plaintiffs leased to the defendant certain premises at the corner of Hastings and Laflin streets, Chicago, for a term of two years, commencing May 1, 1909, and ending April 30, 1911, at a rental of $70 a month. By one clause in the lease it was provided: “If at any time during the term of this lease * * * a City of Chicago saloon license cannot be obtained for these premises, it is hereby agreed that upon the lessee giving thirty days’ notice to the lessor, that after the expiration of said notice this lease and agreement shall be null and void.” The defendant placed a sub-tenant in possession, who conducted a saloon there until December 3, 1909, when he moved out. A license to keep a saloon upon said premises was issued May 1, 1909, to John Ryan. On November 1,1909, Ryan assigned his license to one Terry Flahiff, and it was thereupon reissued to Flahiff, authorizing him to keep a dramshop at 2620 Lincoln Avenue, Chicago. On November 27, 1909, the defendant served notice upon the lessors to the effect that in pursuance of the clause in the lease above quoted, it had elected to declare the lease null and void after December 31, 1909, “for the reason that a City of Chicago saloon license cannot be obtained for said premises.” The rent for December, 1909, was paid. This suit was brought for the rent for the month of January, 1910, and for damages amounting to $10 for the removal of certain window shades from the premises. At the close of all the evidence, the court directed a verdict for the plaintiff, and judgment was entered as directed. The plaintiffs below have filed no appearance in this court.

The only error discussed by the defendant’s counsel is that the court erred in directing a verdict, because (it is said) there is no evidence that Ryan was the agent of or in any way connected with the defendant, or that he held the license for the benefit of defendant, and “the undisputed evidence is that at the time the notice to terminate the lease was served * * * no license to conduct a saloon at the premises in question could be obtained.”

It will be noted that the language of the lease only permits the lessee to cancel the lease “if a saloon license cannot be obtained for said premises.” Webster defines the word “obtain” as follows: “To get hold of by effort, to gain possession of; * * * to obtain excludes the idea of chance, and implies some effort directed to the attainment of that which is not immediately within our reach. Whatever we thus seek and get, we obtain, whether by our own exertions or those of others.” It was shown by the evidence that no license was issued to any one by the City of Chicago on November 1, 1909, to keep a saloon upon the premises in question. It was also shown that by the saloon license ordinance of the City of Chicago, no license can be issued to a corporation, and that the number of licenses is limited to one license for every 500 population in the City; but why the Ryan license was transferred to a different location after six months’ use of the same at plaintiffs’ premises does not appear, nor does it appear that any effort whatever was made by the defendant to retain said license for said premises or obtain another. There was no evidence as to the number of licenses in force in Chicago at that time, nor that anyone had ever made any application to the City for a license for said premises for the period beginning November 1, 1909. In other words, .there is no proof whatever in the record that Ryan’s license or some other could not have been obtained by reasonable effort, nor that a new license for a new tenant for said premises could not have been obtained in the same manner as it had been obtained and used for said premises during the six months prior to November 1, 1909. Defendant’s counsel make the claim that the defendant had the right to cancel the lease at any time upon giving thirty days’ notice “if for any reason that appeared to he sufficient to the lessee, a license could not he obtained.” We do not so construe the language of the contract between the parties. It may be conceded, as counsel claims, that “the lessee was not obliged to pay * * * an outrageous price to get an outstanding license transferred to some person who would hold it for its benefit, nor * * * comply with extraordinary conditions;” hut there is no evidence in the record to show that an outrageous price was demanded by anybody, nor that extraordinary conditions confronted the defendant at the time in question. So far as this record shows, defendant did not even try to obtain a license at any price or under any condition. The ruling of the trial court was therefore correct, and its judgment will he affirmed.

Affirmed.


text:
    Warren E. Colburn and Fletcher A. Tinkham, Trading as W. E. Colburn & Co., Defendants in Error, v. Commercial Security Company, Plaintiff in Error.
    Gen. No. 16,715.
    1. Pledges — when possession affects right to heir. Unconditional delivery of pledged property by a pledgee to a pledgor vests in tbe latter tbe complete title to sucb property and continuance of possession is indispensable to tbe lien; but if tbe thing pledged is delivered to tbe pledgor for a special and limited purpose, to be returned later to tbe pledgee in tbe same or in a substituted form, tbe lien of tbe pledgee will not be lost, and if tbe pledgor refuses to make tbe return an action will lie against bim for tbe conversion.
    2. Pledges — when relation of pledgor and pledgee is created. Where a contract of conditional sale on instalments providing that tbe seller may take possession of tbe article on default is assigned and delivered by the seller as collateral security for the repayment of money loaned, the deposit of the contract is a pledge of the proceeds of the article sold and the relation between the seller and the lender is that of pledgor and pledgee.
    3. Pledges — when lien is not lost hy redelivery. Where contract of conditional sale on instalments, providing that the seller may take possession of the article on default, is assigned and delivered as collateral security by the seller to a person loaning him money under a contract permitting the seller to reclaim and resell the article on default under the instalment contract, and to deliver the new contract of sale to the lender in lieu of the forfeited contract, the lien created by the pledge of the original instalment contract is not lost by the lender permitting the reclamation and resale of the article sold.
    4. Trover — when pledgee may maintain trover against the third party. Where a contract of conditional sale on instalments providing that the seller may take possession of the article on default is assigned and delivered by the seller as collateral security to one lending him money under a contract permitting the seller to reclaim and resell the article on a default under the instalment contract, and to deliver the new contract of sale to the lender in lieu of the forfeited contract, and the seller reclaims and resells the article and delivers the new contract to a, third person having knowledge of the original lender’s rights, as security under a similar loan agreement, the proceeds from the contract have a potential existence, the third person is not an innocent purchaser, and the original lender may maintain trover against the third person for the value of the new sale contract.
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court, at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Kruse & Peden and R. C. Merrick, for plaintiff in error.
    Matthews & Kimbell, for defendants in error.
   Mr. Justice Fitch

delivered the opinion of the court.-

By this writ of error it is sought to reverse a judgment of the Municipal Court for $255, entered against plaintiff in error, hereinafter called the defendant, in an action of the fourth class. The suit originally was brought in replevin by the defendants in error, W. E. Colburn & Co., otherwise known as the Merchants Exchange Bank, hereinafter called plaintiffs, but no property being turned over upon the replevin writ, the case proceeded in trover. The evidence tended to show that one Charles F. Dickinson was engaged in the business of selling pianos upon the installment plan. With each sale he took a signed instrument, the first paragraph of which is in the form of a promissory note, for the price of the piano, payable to the order of Dickinson, in monthly installments with interest, to which is appended an agreement to the effect that the piano is temporarily let to the subscriber, but that the title remains in Dickinson until the purchase price is fully paid, and that if at any time before that, Dickinson shall feel himself insecure or unsafe, or if default shall be made in the payment of any of the installments, he shall have the right to take possession of the piano, in which event all sums paid thereon shall be forfeited as liquidated damages. In May, 1907, Dickinson and the plaintiffs entered into a written agreement, by which the plaintiffs agreed to loan him, as required from time to time, not to exceed $3,000, and Dickinson agreed to endorse and turn over to the plaintiffs contracts such as above described, to be held by the plaintiffs as security for the repayment of such loans, with interest. It was further provided in the agreement that whenever the subscriber to one of such contracts should refuse to retain the piano delivered to him “the title and ownership of such piano shall pass to the first party” (i. e., the plaintiffs), and if a subscriber should forfeit his rights by non-performance of his contract, and the piano be reclaimed by Dickinson and re-sold to the other parties in the same manner, the new contract of sale should be endorsed and turned over to plaintiffs in lieu of the forfeited contract; or the plaintiffs might, at their option, themselves reclaim the piano “and the title and ownership thereof shall thereby become vested in first party, who shall have the right to take immediate possession of sneh piano” and sell the same to pay the indebtedness dne from Dickinson. The agreement further provided: “This agreement is intended * * * to be an assignment of all the rights and interests of second party” (Dickinson) “in all contracts for the conditional sale or leases of pianos endorsed and tnrned over, or which shall be endorsed and tnrned over to first party, and of all the rights and interests of second party in pianos mentioned in such conditional sales and leases, for the purpose of securing the payment of the money loaned or to be loaned by first party to second party, as aforesaid.”

In pursuance of this agreement, Dickinson deposited with the plaintiffs a number of such contracts, one of which was for a piano sold to Cora I. Leslie for $385, on May 14, 1907. It appears that a default was after-wards made on this contract, and that Dickinson resold the piano in June, 1908, to a Miss Strader, who paid $130 upon the same, leaving a balance due to Dickinson upon said contract of $255. It appears further, that when the amount of advances made by the plaintiffs to Dickinson had reached about $3,000, Dickinson executed and delivered to the plaintiffs his judgment note for $3,000. In January, 1908, Dickinson made a similar borrowing agreement with the defendant, and soon after, defendant took charge of all of Dickinson’s books and accounts, and thereafter kept for him his books of account and memoranda regarding sales and transfers of pianos and piano contracts. Dickinson testified that at that time he told the defendant that plaintiffs had a claim upon the piano sold to Mrs. Leslie for advances made by them; that the defendant’s secretary replied, in substance, that he wanted the number of every piano, whether it had been sold or not; and that thereafter everything collected must be sent to the defendant, who would “put it where it belonged, and the Merchants Exchange Bank would get its money.” When Dickinson re-sold the piano in question to Miss Strader, the contract was sent to the defendant in due course of business and retained by it. Dickinson testified that he told defendant’s officers that this contract belonged to the plaintiffs, and that the secretary agreed to send it to them; that he repeated this statement several times, until finally the secretary told Dickinson to attend to his own business. Dickinson insisted that defendant had the numbers of all the contracts and the pianos, and knew all about the different contracts, and knew that the Strader contract should have been sent to the plaintiffs.

On July 11, 1908, one of the plaintiffs wrote a letter to B. A. Crandall, the president of the defendant company, enclosing a “list of our collateral in the Dickinson matter” in which was a memorandum of the Leslie contract, and inquired as to their value. To this letter Crandall replied verbally that he would do what he could to see that the money collected was turned over to plaintiffs. On August 12, 1908, one of the plaintiffs wrote to Crandall mentioning the Leslie contract, and asking if it was a “dead one,” and if so, what Dickinson had done with the piano, stating also that Dickinson insisted that defendant “had paper of his which he has not endorsed and turned over to you.” Notwithstanding these letters, on August 20, 1908, Dickinson executed a formal assignment to the defendant company of a list of contracts, including the Strader contract. In September, 1908, the defendant sued Dickinson and levied on all the remaining pianos, and soon after, Dickinson filed a petition in bankruptcy. Later, the plaintiffs made a demand upon the defendant for possession of the Strader contract, and the demand being refused, brought suit in replevin, with the result above stated.

It is contended by defendant’s counsel that the transaction between Dicldnson and the plaintiffs was a mere executory agreement, and was not a valid assignment of the Strader contract; that no valid assignment can be made of property which, at the time, has neither actual nor potential existence; that plaintiffs had, at most, only an equitable interest, which would not support an action in trover; that the defendant was one of two innocent parties who have sustained loss through Dickinson’s misconduct, and that the plaintiffs, having put it in the power of Dickinson to commit a fraud, must be the ones to suffer. To these contentions plaintiffs reply that the Leslie contract was, in fact, delivered to the plaintiffs; that such delivery, and the agreement under which it was delivered, constitute a pledge which gave the plaintiffs a valid lien upon the proceeds of the piano sold to Mrs. Leslie; that the defendants had full notice of the plaintiffs’ rights, and were not innocent parties when they received the Strader contract; that the lien created by the pledge was not lost by the second sale to Miss Strader, even though made by Dickinson, the pledgor; and that under such circumstances, trover will lie for the value of such contract.

It will be noted that by the terms of the original agreement between Dicldnson and the plaintiffs, the intention of Dicldnson to assign to the plaintiffs the several contracts for the conditional sale of pianos, as such sales were made from time to time, is expressly stated, and that this declaration of intention was followed, so far as the piano here in question is concerned, by an actual deposit of the contract for the conditional sale thereof to Mrs. Leslie. There was, at that time, therefore, a completed transfer of the Leslie contract to the plaintiffs as collateral security for money loaned. It will also be noted that the agreement between Dickinson and the plaintiffs permits Dickinson, under certain conditions, to reclaim and re-sell the piano, but required the new contract, when received, to be endorsed and turned over to the plaintiffs in lieu of and in substitution of the contract previously deposited. Under these circumstances, we are of the opinion that the character of the original deposit was that of a pledge of the proceeds of the sale of the piano, as security for money loaned; that the relation existing between Dickinson and the plaintiffs in June, 1908, when the second sale was made, was therefore that of pledgor and pledgee. This being true, the only real question for determination here is: Was the lien, created by the pledge of the Leslie contract, lost by permitting Dickinson to reclaim the piano and re-sell the same to Miss Strader in the manner and under the agreement stated above?

It is well established that an unconditional delivery of pledged property by a pledgee to the pledgor vests in the latter the complete title to such property. Continuance of possession is indispensable to the lien. When the custody over pledged property is abandoned, the lien created by the pledge is lost. But it is equally well established that if the thing pledged is delivered by the pledgee to the pledgor for a special and limited purpose, to be returned later to the pledgee in the same or in a substituted form, the lien of the pledgee will hot be lost; and if the pledgor in such case refuses to return the article pledged or. its substituted thing of value, an action will lie against him for the conversion. Kellogg v. Tompson, 142 Mass. 76; Cooper v. Ray, 47 Ill. 53; Hutton v. Arnett, 51 Ill. 198. “If property pledged is delivered by the pledgee to the pledgor, to sell or dispose of as his agent, and account to bim for the proceeds, as agreed upon between them, this transaction would preserve the pledgee’s title in the property, and would enable him to recover it of any person who wrongfully came into its possession.” (Kellogg v. Tompson, supra, 79.) If, in such case, the agreement is that, the thing pledged shall be taken by the pledgor and exchanged for other property, and that such other property shall he substituted and held under the original contract of pledge, the lien attaches to the substituted property. Palmtag v. Doutrick, 59 Cal. 154; Castle v. Hickman, 41 Pac. 1036; Way v. Davidson, 12 Gray, 465. It is also well settled that a pledgee may lawfully authorize the pledgor to act as his agent to collect assigned accounts or claims. Young v. Upson, 115 Fed. 192; Thayer v. Dwight, 104 Mass. 254. The same principles apply to the class of pledges known as “hypothecations” — property to be thereafter acquired under an existing contract. Macomber v. Parker, 14 Pick. 497. Such property had a potential existence, a possibility coupled with an interest. Brewer v. Griesheimer, 104 Ill. App. 323, 329; Mallin v. Wenham, 209 Ill. 252.

Upon the authority of the foregoing cases, we entertain no doubt that the lien created by the pledge of the Leslie contract was not lost by permitting Dickinson, as the agent of the plaintiffs, to re-sell the piano to Miss Strader, and that the plaintiffs were entitled to the possession and proceeds of the Strader contract. Upon the facts shown, defendant was hot an innocent purchaser, but took the same with full notice of the plaintiffs’ rights.

The judgment of the Municipal Court will therefore be affirmed.

Affirmed.


text:
    John J. Cook, Administrator, Defendant in Error, v. Denslow Lewis, Plaintiff in Error.
    Gen. No. 16,731.
    1. Assumpsit — money had and received. An action for money had and received is an equitable action, and may be maintained whenever the defendant has obtained money belonging to the plaintiff which, in equity and-good conscience, he has no right to retain.
    2. Banks — death of depositor revokes check. The payee of an unaccepted check has no right subsequent to the death of the depositor to collect the amount of his check from the bank, but must present his claim- to the Probate Court; and if he does collect his check after the death of the depositor he is liable to the administrator.
    3. Executors and administrators — administrator may maintain action of money had and received. Where a bank depositor gives his physician a check, telling him to keep the balance remaining after the payment of funeral expenses to apply on his account for professional services, the physician collecting his check from the bank after the death of the maker, and paying the funeral expenses, is liable to the administrator, in an action of money had and received, for the balance.
    Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Church & McMurdy, for plaintiff in error.
    Andrew L. Winters, for defendant in error; George M. Stevens, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

The defendant in error, hereinafter called plaintiff, as administrator of the estate of Marcus Koch, deceased, sued the plaintiff in error, hereinafter called the defendant, in the Municipal Court for money had and received. On a trial before the court without a jury, there was a finding and judgment for the plaintiff for $226.75, and defendant has sued ont this writ of error.

Marcus Koch died at two o’clock a. m. on October 30, 1909. Ten days before his death, he gave the defendant, his attending physician, a check on a bank in Matteson, Illinois, for $392.50, which exhausted all of his bank account, except thirty-five cents. Seven hours after the death of Koch, the doctor presented the check for payment at the Matteson bank, and told the bank that Koch was dead. The bank paid the check. The doctor admitted that he received this money for the purpose of paying funeral expenses, including a grave, headstone, the undertaker’s bill, etc.; but after paying such expenses, amounting to $165.75, he refused to pay the remainder to the plaintiff, claiming it was due him for professional services rendered to the deceased. The trial court, in giving judgment for such remainder, took the position that it was immaterial whether there was any consideration for the check or not, for the reason, as we understand the record, that under the present statute on negotiable instruments, the delivery of the check to the defendant did not operate as an assignment pro tanto of any funds in the bank, and that the maker’s death amounted to a revocation of the authority given to the defendant by the check to collect the money from the bank.

Counsel for defendant contend, in substance, as follows: Prior to the enactment of the present statute on negotiable instruments, the giving of a check for a valuable consideration operated as an assignment pro tanto of the maker’s funds in the bank; that by the delivery of such check to the payee, the latter acquired a vested interest in such fund, and that the maker’s death, before acceptance by the bank, did not in anywise affect such vested interest; that section 188 of the Negotiable Instruments Act did not change this rule, but was intended merely as a protection to the bank. To these contentions, counsel for plaintiff replies, that the rale ia Illinois has been entirely changed by the section of the statute above mentioned; that apon the death of a depositor, the title to the fand in the bank, except so far as the same has been set apart by the bank for the payment of accepted checks, passes eo instanti to his administrator or execator, and mast be administered by him ander the direction of the Probate Coart; that the payee of an anaccepted check has now, therefore, no right, sabseqaent to the death of the depositor, to collect the amoant of his check from the bank, bat mast present his claim to the Probate Coart; that if he does collect from the bank, apon sach a check presented after the death of the maker, he is liable to the administrator for the amoant so received in an action for money had and received.

An action for money had and received is an eqnitable action, and may be maintained whenever the defendant has obtained money belonging to the plaintiff which, in eqaity and good conscience, he has no right to retain. First National Bank v. Gatton, 172 Ill. 625; Wilson v. Turner, 164 Ill. 398. In the latter case the coart, qnoting from Allen v. Stenger, 74 Ill. 119, said: “And this kind of eqnitable action to recover back money which oaght not, in justice, to be kept, is very beneficial, and therefore mach encoaraged. It lies only for money which, ex aequo et bono, the defendant oaght'to refand. (Chitty on Contracts, 474.) When, therefore, according to this rale, one person obtains the money of another which it is ineqaitable or anjast for him to retain, the person entitled to it may maintain an actioh for money had and received for its recovery. * * * The scope of the action has been enlarged antil it embraces a great variety of cases, the asnal test being, does the money, in jnstice, belong to the plaintiff, and has the defendant received the money, and shoald he, in justice and right, retam it to the plaintiff. ’ ’ Tested by this rale, if the money received from the bank by the defendant was property belonging to the plaintiff, which, in equity and good conscience, the defendant has no right to retain, then the plaintiff is entitled to judgment. If, on the other hand, the money so received does not belong to the plaintiff, or, in the event that it is determined that the legal title to the fund was in the plaintiff, if the defendant should not, “in justice and right, ’ ’ he required to turn it over to the plaintiff, then in either of the latter cases, the judgment should be for the defendant.

Prior to the enactment of the Negotiable Instruments Act of 1907, the rule in Illinois was that the drawing and delivery of a check by a depositor upon a fund in the hank was, in effect, an assignment to the holder of the check of so much of the fund as the check called for. Munn v. Burch, 25 Ill. 35; Union Nat. Bank v. Oceana County Bank, 80 Ill. 212; Niblack v. Park Nat. Bank, 169 Ill. 517; Gage Hotel Co. v. Union Nat. Bank, 171 Ill. 531. To this rule, however, an apparent exception or qualification was recognized in cases where the check was a mere gift from the drawer to the payee. In such cases, it was held that the gift was incomplete until the check was paid or accepted by the hank upon which it was drawn; that until so paid or accepted, the check was subject to revocation, and was revoked by the death of the drawer before payment or acceptance by the bank. Martin v. Martin, 89 Ill. App. 147. The exception, was based upon the principles applicable to promissory notes executed without consideration and intended as gifts, which were, held to he mere promises to make a gift, and therefore not executed until the notes were paid. Martin v. Martin, supra; Richardson v. Richardson, 148 Ill. 563.

In those jurisdictions where a check does not operate as an assignment pro tanto of the fund on deposit until acceptance by the hank, it has been held that a check is revoked by the death of the drawer before such acceptance. Nat. Com. Bank v. Miller, 77 Ala. 168; Second Nat. Bank v. Williams, 13 Mich. 282; Saylor v. Bushong, 100 Pa. St. 23, 27; Fordred Seaman’s Savings Bank, 10 Abb. Pr. (N. S.) 425; Simmons v. Savings Society, 31 Ohio St. 457.

In 2 Daniel on Negotiable Instruments, 4th Ed., Sec. 1618b, and a note to that section, the author assails the authority and reasoning of such cases. After stating that many authorities hold the view above stated, he attributes its origin to the English case of Tate v. Hilbert, 2 Vesey, Jr., 118, decided in 1793, and points out that the facts of that case were that the check there in question was not given for a valuable consideration, but was intended as a donatio mortis causa. He concedes that “if the check were a gift to the payee, and the banker knew that fact, the death of the drawer would operate as a revocation of the banker’s authority to pay it. In such a case the authority of the donee to collect, as well as that of the banker to pay, is not coupled with such an interest as to continue them in force.” (Ibid, 1618b, note.) But he contends that where the check is given to the payee for a valuable consideration, the authority of the payee to collect the amount of the check from the bank is a power coupled with an interest, and therefore irrevocable by the death of the drawer. (Ibid. 1618b.) In this view, he is apparently supported by the reasoning used in Raesser v. Nat. Exch. Bank, 112 Wis. 591, 598 (which does not, however, directly decide the point), and in Lewis v. International Bank, 13 Mo. App. 202, 208.

Other text writers support the view taken by the courts of Alabama, Michigan, Pennsylvania, New York and Ohio in the cases cited above from those states, upon the well settled principle that the title to a depositor’s bank balance vests in his legal representatives at the instant of his death, and that therefore the depositor’s unaccepted check, in jurisdictions where such a check is not considered as an assignment pro tanto, is revoked (or rendered ineffective) by his death, as against a fund which he then no longer owns nor controls. (Zane on Banks and Banking, Sec. 138; 2 Bolles, Modern Law of Banking, 621.) On the same principle Mr. Justice Cartwright, in Pabst Brewing Co. v. Reeves, 42 Ill. App. 154, held that under the law of New York, a check drawn upon a New York bank did not operate to transfer the title to the drawer’s funds in that bank, so as to prevent the title to such fund passing to an assignee for the benefit of creditors, under a voluntary assignment made before the acceptance of such check by the bank.

From an examination of such authorities as we have been able to find in those states in which a check is not regarded as an assignment, we are inclined to think that the weight of authority in those states upon this question favors the rule that, as between the drawer and payee of a check which has not been presented to and accepted by the bank, the death of the drawer (with notice thereof to the bank) deprives the payee of the right to collect from the bank, whether the check be given for a valuable consideration or not. This is certainly true if the check is intended as a mere gift (Simmons v. Savings Society, supra; Second National Bank v. Williams, supra; Martin v. Martin, supra), though the Supreme Court of California holds otherwise. Pullen v. Placer Co. Bank, 138 Cal. 169.

Section 188 of the Negotiable Instruments Act of 1907 provides: “A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check.” From what has been stated above, it would seem to be evident that the legislature intended, by this section of the Act, to change the rule in Illinois so as to make it conform to the rule which obtains in most of the other states and in England. We are of the opinion that such was and is its effect; and in the absence of any authoritative decision upon this question by our own Supreme Court, we are disposed to follow the current of authority in those states where the rule has been the same as stated in said section 188. We think that the cases which hold that the power given by a check to collect from the hank is a “power coupled with an interest” in the fund, and yet, at the same time, hold that the check is not of itself' ah assignment of any part of such fund, are inconsistent and illogical. If a check does not operate as an assignment of a fund, or any part thereof, we do not see how it can he said to create any vested interest therein, and if the interest of the payee created by a check is not a vested interest in the fund, then the power given by the check is not “coupled with an interest” in such fund. Hunt v. Rousmanier’s Admrs., 8 Wheat. 174; Gilbert v. Holmes, 64 Ill. 548, 560. We therefore hold that the check to Dr. Lewis did not vest in him any title to the fund in the hank; that the title thereto vested in the plaintiff upon the death of Marcus Koch; and that the money paid by the hank to Dr. Lewis, after knowledge of the death of Marcus Koch, belonged to the plaintiff, as administrator.

There remains, then, only the further question whether the plaintiff has shown not only his legal title to the money received by the defendant, but also that the defendant has no right, in justice and in equity, to retain the same. The defendant offered to prove that more than he received on the check was due bim from the deceased for services, and that when he was given the check by Koch, the latter told him to keep any balance remaining after the payment of funeral expenses to apply on his account for such services; but the trial court refused to admit or consider such evidence. If the cause of action for the recovery of the money received by the defendant had arisen during the lifetime of the deceased, the defendant would not, in such case, he required to pay over the money to the administrator and then probate his claim against the estate for services, hut could set-off his claim against his indebtedness to the estate. Printy v. Cahill, 235 Ill. 534. The cause of action here involved, however, did not accrue to the deceased. It did not arise until after his death, and accrued directly to the administrator. In such case, to allow the defendant to set off a debt due from the intestate in his lifetime against a claim of the administrator arising after the death of the intestate, ‘ ‘would interfere with the proper order of distribution. It would enable the debtor of an insolvent estate to obtain an unjust advantage.” Newhall v. Turney, 14 Ill. 338, 340. It would also virtually give to the payee of a check the authority of an administrator to collect, without appointment and without bond, for the sole benefit of one creditor, viz: himself.

For the reasons indicated, the judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    Victor Larson, Defendant in Error, v. J. E. Sexsmith, Plaintiff in Error.
    Gen. No. 16,776.
    1. Appeals and ebbobs — when refusal to admit parol evidence as to written contract will not reverse. The owner of a building, contending that decorating was not done in accordance with an understanding at the time the written contract was entered into, cannot complain of the refusal to admit parol evidence as to the consideration for the making of the contract and the meaning of the word “decorating,” where all the facts and circumstances connected with the making of the contract were brought out in cross-examining the decorator’s witnesses and the owner testified fully regarding the nature and character of the work and that during its progress he made objections.
    2. Contbacts — when question of proper performance is for the jury. Where the evidence is conflicting whether objections to defective work by a painter and decorator were remedied after the objections were made, and whether the contractor told a witness to use a medium grade of material, such questions are for the jury.

      Error to the Municipal Court of Chicago; the Hon. IIenby C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Adams, Bobb & Adams, for plaintiff in error.
    Johnson & Molthrop, for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

This writ of error is brought to reverse a judgment entered in the Municipal Court against plaintiff in error for $117.25.

In September, 1909, the parties hereto entered into a written contract, by the terms of which Larson agreed “to furnish all material and labor for the painting and decorating of a six-flat building for Miss Doyle, being erected on Winthrop avenue, north of Leland avenue, for the sum of $500, payable 85 per cent, as work progresses, balance thirty days after completion of job.” Sexsmith, a contractor, was erecting a building for the Miss Doyle mentioned in the agreement. Under this contract, Larson and his workmen filled, shellaced and varnished all the oak woodwork and floors; stained, shellaced and varnished the doors; “hard oiled” and tinted the ceilings and walls; painted the dados in the kitchen; enameled the woodwork of the bathroom, and painted the wood and metalwork of the exterior of the building. During the progress of the work, the contractor ordered “linowall” to be placed in the dining rooms and around the stairways, which was done at a net additional cost of $12.25. Pour hundred and twenty-five dollars was paid on the contract as the work progressed, leaving the balance, including the price of the extra work, $117.25, for which judgment i^as rendered. Counsel for plaintiff in error state in their brief that on the trial below, they sought to show as a defense “that the contract was not performed according to the agreement and understanding between the parties at the time the written contract was entered into; the sole question on this appeal being the refusal of the trial court to admit evidence as to how the contract was to be performed by the defendant in error; in other words, to admit evidence as to the consideration for the mailing of said contract, the contract being-silent as to what kind of material was to be used and the manner in which the house was to be decorated, and what was meant by the word decorating-.”

While it is unquestionably true that a party may prove the existence of a separate oral agreement as to matters on which a written contract is silent, and which is not inconsistent therewith, if it can be inferred that the parties did not intend the writing to be a complete and final statement of a given transaction, and that this rule applies to parol agreements as to how a written contract is to be performed (Razor v. Razor, 39 Ill. App. 527; Ball v. Benjamin, 73 Ill. 39), yet, after an examination of the record in this case, we do not think the plaintiff in error has any just ground of complaint as to the rulings of the trial court in this respect. On cross-examination of the witnesses for defendant in error, counsel for plaintiff in error brought out all the facts and circumstances connected with the making of the contract, and the plaintiff in error testified fully regarding the nature and character of the work which was done by defendant in error. Plaintiff in error testified that during the progress of the work, he objected to the results obtained in several minor details of the work. The evidence as to whether the defects thus pointed out in these minor details of the work were remedied by the defendant in error is conflicting, but we cannot say that the verdict was manifestly against the weight of the evidence. One of the witnesses for defendant in error testified that the contractor told him to use a medium grade of material; that if it made as good a showing as on a certain other flat building, which was mentioned, he, the contractor, would be satisfied; and that the contractor several times expressed his approval and satisfaction. This was denied by the contractor, but it was a question of fact for the jury, and we think the facts and circumstances corroborate the evidence of the witness for the defendant in error. There was no controversy in the court below regarding the extras, and as the remainder of the work was merely painting and calcimining, and as it was shown by evidence in the trial court that such work was done in a workmanlike manner, we think substantial justice has been done.

The judgment of the Municipal Court will therefore be affirmed.

Affirmed.


text:
    M. M. Sheehan for use of Henry Best, Defendant in Error, v. The Union Stock Yard and Transit Company of Chicago, Plaintiff in Error.
    Gen. No. 16,792.
    1. Garnishment — what plaintiff must prove. In garnishment cases the plaintiff must prove the judgment and issuance of execution and return “no property found.”
    2. Garnishment — plaintiff’s affidavit not evidence of judgment. The plaintiff’s affidavit in garnishment cases is not evidence of the obtaining judgment, issuance of execution, and return “no property found.”
    3. Garnishment — exemptions. Whether one is a “wage earner” within the meaning of the Garnishment Act, sec. 14, is a mixed question of law and fact.
    4. Garnishment — wage earner. Under the Garnishment Act, see. 14, providing, for exemption from garnishment of wages of a wage earner who is the head of a family, one is a wage earner whose services require physical or manual labor whether skilled or unskilled.
    5. Garnishment — exemption. In garnishment, where an exemption of $15.00 per week is claimed by the nominal plaintiff under the Garnishment Act, sec. 14, evidence as to the nature of the services or work performed is necessary to enable the court to determine whether the money due is wages of a wage earner within the act.
    Error to the Municipal Court of Chicago; the Hon. Chapees N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the December term, 1910.
    Reversed and remanded.
    Opinion filed October 3, 1912.
    Winston, Payne, Strawn & Shaw, for plaintiff in error; T. A. Sheehan and Rupert D. Donovan, of counsel.
    No appearance for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

Defendant in error began a garnishment suit by filing an affidavit in the Municipal Court, reciting that on March 19, 1910, Henry Best recovered a judgment in the Municipal Court against M. M. Sheehan for $36 and costs; that execution thereon was issued and returned “no property found,” and that plaintiff in error was indebted to said Sheehan. Plaintiff in error was served as garnishee and filed its answer, verified by affidavit, to the effect that it was indebted to M. M. Sheehan in the sum of $21.15 for wages earned in its service as a clerk in its auditor’s office; that said Sheehan is the head of a family, consisting of herself and two sisters, with whom she resides and whom she supports, and is entitled to the statutory exemption of $15 a week, for which she has made a demand on it and has filed an affidavit to that effect, which affidavit is attached to the answer of the garnishee. The case was heard entirely upon the affidavit of the plaintiff and the answer of the garnishee, and the court held that a clerk is not entitled to the exemption provided in section 14, chapter 61 of the Revised Statutes of Illinois, and entered judgment against the garnishee for $21.15. This writ of error is brought to reverse that judgment, and plaintiff in error assigns as error, first, that there was no proof of any judgment against the nominal plaintiff, the affidavit alone not being evidence of that fact; second, that the court erred in its construction of the exemption statute above named.

We are of the opinion that both errors are well assigned. In garnishment cases the plaintiff must prove the judgment upon which the proceeding is based, the issuance of the execution, and its return “no property found.” The affidavit is not.evidence of these facts. Bank of Montreal v. Taylor, 86 Ill. App. 388; Davis v. Siegel, 80 Ill. App. 278.

As to the second point raised, section 14 of the Garnishment Act provides as follows:

“The wages for services of a wage earner who is the head of a family and residing with the same to the amount of fifteen ($15) dollars per week shall be exempt from garnishment.”

There is no evidence in this record as to the nature of the work or services performed by the nominal plaintiff. This was necessary, in our opinion, in order to enable the court to determine whether the money due from the plaintiff in error to her was “wages for services of a wage-earner.” This is a mixed question of law and fact. If the facts are, that the money due to an employee is money which has been earned by such employee as “wages” in an occupation requiring physical labor, whether skilled or unskilled, then the employee to whom such money is due is a “wage-earner” within the meaning of the statute, and entitled to the statutory exemption. A clerk may or may not be such a wage-earner, according to the facts regarding the nature and character of his or her work. In Heckman v. Tammen, 84 Ill. App. 537, a clerk in a printing office was held to be a “laborer” within the meaning of the Act of June 21, 1895, giving preference to debts owing to “laborers, servants or employes”; and on appeal to the Supreme Court, the decision of the Appellate Court in this respect was expressly approved. Heckman v. Tammen, 184 Ill. 144, 148. In the latter case the Supreme Court said (p. 148): “These appellees performed physical labor as typesetters, cylinder feeders, pressmen, and one also kept the hooks, at stipulated wages of so much per week. That in their employment they had acquired and used skill would not render the designation of ‘laborer’ inapplicable. They labored with their hands for their employer for wages, and were clearly laborers within the meaning of the statute. To so construe the statute as to limit its benefits to mere menial servants performing the lowest forms of labor requiring no skill, would, we think, do violence to the meaning of the act and leave the evil intended to be cured to remain in existence only slightly mitigated. While we are disposed to hold that the statute must be confined to those who perform manual services, still it cannot be confined to such services only that require no skill in the performance of them.” In Seymour v. Berg, 227 Ill. 411, the case of Heckman v. Tammen, supra, was overruled in part, but the part affected was not the point here under discussion, and the language above quoted has never, to our knowledge, been criticised or distinguished in any later case. In other jurisdictions, a clerk in a store has been held to be a laborer within the meaning of similar statutes. Williams v. Link, 64 Miss. 641; Cawood v. Wolfley, 56 Kan. 281. In Weymouth v. Sanborn, 43 N. H. 171, the court, in discussing a similar statute, defines a laborer as one who subsists by physical toil, in distinction from one who subsists by professional skill.

In Manowsky v. Stephan, 233 Ill. 409, it was said, referring to the Act of 1889, authorizing the collection of an attorney’s fee in suits for wages (p. 413): “That statute applies only to wage-earners, * * * applies to all wage-earners without discrimination.” The “wage-earners” mentioned in the act there construed are as follows: “Mechanics, artisans, miners, laborers or servants, and employes.”

While it is true that in none of the decisions above cited was the construction of section 14 of the Garnishment Act directly involved, yet, the principle of such cases is, we think, clearly applicable to the section here under consideration. If, under the statutes construed in the cases cited, a clerk is a wage-earner, provided his work requires physical or manual labor, it seems to us' clear, that the same construction must be given to section 14 of the Garnishment Act.

For the reasons indicated, the judgment of the Municipal Court will be reversed and remanded for further proceedings, not inconsistent with the views herein expressed.

Reversed, and remanded.


text:
    In re Estate of Harriott B. Ward, deceased. Clarence A. Tuttle, Executor, Appellant, v. The Chicago Title and Trust Co., Administrator, Appellee.
    Gen. No. 16,812.

      Administration — revocation of letters. A Probate Court has no jurisdiction to remove an administrator or revoke letters of administration, after the administrator has accepted and qualified and entered upon his duties, except for causes enumerated in the statute.
    Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Steere, Williams & Steere, for appellant.
    Matz, Fisher & Boyden, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

This appeal calls in question the ruling and judgment of the Circuit Court, sustaining the demurrer of appellee to a petition filed hy appellant to revoke the letters of administration previously granted to appellee. The record shows that Harriott B. Ward, who was a daughter of George C. Benton, died intestate April 18, 1896, leaving her surviving Charles W. Ward, her husband, and Harriott S. Ward, her daughter, a minor, her only heirs at law and next of kin. On July 23, 1903, on petition of Charles W. Ward, the Chicago Title & Trust Co. was appointed administrator of the estate of Harriott B. Ward, deceased. The only property described in the petition for letters- of administration was “a claim which, if recovered, would not exceed in value the sum of $60,000. ’ ’ On April 3,1905, Susan D. Benton, widow of George C. Benton, who died in 1902, leaving him surviving Susan D. Benton, his widow, and Harriott S. Ward, his grand-daughter, filed her petition in the Probate Court of Cook county, in which she stated that she was interested in the estate of George C. Benton, deceased, and that the only asset in the estate of Harriott B. Ward, deceased, consisted of a claim or cause of action against the estate of said Benton; that no letters of administration were issued in the matter of the estate of Harriott B. Ward, deceased, until more than seven years after her death; that no showing was made to the Probate Court to explain this delay; that without such showing, letters of administration should not have been granted; that the issuance of such letters of administration enables the administrator of the estate of Harriott B. Ward to harass and annoy petitioner, and involve petitioner in expensive litigation, and has caused and is liable to cause petitioner great loss, and will delay settlement of the estate of George C. Benton. The petition prayed that the Trust Company be required to appear and show cause why its letters of administration should not be revoked, and that upon a final hearing’ said letters be revoked. To this petition the Trust Company, as administrator, filed a general and special demurrer, alleging as special grounds of demurrer that the Probate Court is without jurisdiction to revoke letters of administration, except for causes prescribed by the statute of Illinois, and that no such cause is set forth in the petition, and that it appears from the petition that petitioner is not interested in the estate of Harriott B. Ward, deceased. The demurrer was sustained by the Probate Court, and the petition dismissed, and an appeal taken to the Circuit Court. Pending the hearing in the Circuit Court, Susan D. Benton died,, and Clarence A. Tuttle, executor, was substituted as petitioner. The Trust Company entered a special appearance in the Circuit Court, and moved to dismiss the appeal upon the ground that neither Susan D. Benton nor her executor had any right of appeal from the order and ruling of the Probate Court. This motion was denied by the Circuit Court, and appellee assigns cross error upon this ruling of the Circuit Court. The Trust Company then entered its appearance generally, and upon a hearing of the demurrer to the petition, the Circuit Court sustained the demurrer and the petitioner elected to stand by his petition; whereupon judgment was entered against the petitioner for costs, from which judgment the executor appeals.

The contentions of appellant may be stated in substance as follows: The lapse of seven years after the death of a decedent constitutes a bar to the granting of letters of administration, unless the delay is explained ; the Probate Court has the inherent power to revoke letters of administration improperly granted; Susan D. Benton, as surviving widow of George C. Benton, deceased, is a party in interest who has the right' to file such a petition for the revocation of letters, and inasmuch as the granting of letters cannot be attacked collaterally, such a petition affords to her the only remedy. Appellee replies that there is no statute limiting the time within which letters of administration may be granted; that the Administration Act enumerates all the causes for which letters of administration may be revoked by the Probate Court; that mere delay is not one of such causes; that the Probate Court has no power to revoke letters except for one or more of the enumerated statutory grounds; that in any event, neither Susan D. Benton, nor the executor of her last will and testament, has such an interest in the estate of Harriott B. "Ward as will give to either the right to file such a petition; and that neither Susan D. Benton nor said executor was entitled to an appeal from the decision of the Probate Court.

Without entering upon a discussion of each of the propositions so advanced, it will be enough to say that we have reached the conclusion, after careful consideration, that the order and judgment of the Circuit Court must be affirmed. While we are of the opinion that the cross-error is probably well assigned under the authorities cited in appellee’s brief, (2 Ency. Pl. & Pr. 170; In re Estate of Hardy, 35 Minn. 193; Swan v. Picquet, 3 Pick. 443) we prefer to rest our decision upon other grounds. In Munroe v. People, 102 Ill. 406, the court held that the Probate Court, in the absence of statutory authority, has no power to remove an administrator or revoke letters of administration after the administrator has accepted and qualified and entered upon his duties; that until some one of the causes mentioned in the statute is placed before the court for action, the court has no power to act at all in this regard, — that is, it has no jurisdiction to act. In Clark v. Patterson, 214 Ill. 533, the court approved the case of Munroe v. People, supra, and on page 544 said:— “The legislature has not deemed it wise to confer on the courts unrestricted power to revoke letters of executorship, but has expressly declared the grounds on which such revocation may be ordered. It is only when one or more of such statutory causes are properly brought before the court for judicial action thereon that the courts have jurisdiction to revoke letters of administration or letters testamentary.” Several early Illinois cases have been cited by appellant, apparently holding a contrary rule, but in our opinion the later decisions above cited are conclusive upon this question. None of the causes mentioned in the statute is alleged in the petition in question, and therefore, the Probate Court was without power to act upon it. The cases cited by appellant’s counsel as authority for the contention that the mere unexplained delay of seven years and three months in taking out letters of administration is sufficient ground for the removal of an administrator do not seem to us to support the contention. Por the most part, they are cases in which it was-held that a delay of more than seven years after the granting of letters of administration before applying to the court for leave to sell real estate to pay debts, operated to bar the right of the administrator to file such a petition; and while in some of such cases there is language used which seems to support the contention, such language is used merely in argument, and cannot be considered as authority for the broad proposition contended for. It is not claimed that there is any statute creating such a limitation. The equitable doctrine of laches is invoked, and a period of limitation is sought to be fixed merely by analogy to the statute regarding the duration of the lien of judgments. In the absence of any authority to that effect, we are not prepared to hold that this doctrine of laches can be applied to the facts shown by this record, even if it were conceded that such a ground can be urged as a cause for revoking letters of administration in view of the express statutory provisions above referred to. The petition does not state what is the nature of the “claim or cause of action against the estate of George C. Benton,” -which is the only asset of the estate of Harriott B. Ward, deceased. If we assume that, whatever its nature, it can be enforced hy an action at law, then the estate of George C. Benton will, of course, have the advantage of every statute of limitation legally applicable to actions at law. If, on the other hand, it is enforceable only in equity, then the equity court will have full power to apply the equitable doctrine of laches if it seems, proper to do so, after knowledge of the facts. Hence we see no reason why the Probate or Circuit Courts, or this court on appeal, should undertake to apply an equitable limitation without any knowledge of the equities that may he involved.

The judgment of the Circuit Court will he affirmed.

Affirmed.


text:
    Barbara Delvaux, Defendant in Error, v. Metropolitan Life Insurance Company, Plaintiff in Error.
    Gen. No. 16,834.
    1. Appeals and errors — who may assert error. When, a proposition of law is given hy the court as submitted, error cannot be assigned thereon by the person who submitted it.
    2. Insurance — reinstatement. Where the insured in an application for restoration of his policy represents by a printed statement therein that he has not, since the issuance of the policy, been sick or afflicted with any disease or been consulted or attended by any physician and that he expressly agrees that “if the foregoing statements be in any respects untrue, the policy will be void and all premiums paid’ forfeited,” the mere fact that he had consulted a doctor for eczema, which had disappeared, does not avoid the restoration since such concealed fact had no reasonable bearing on the risk assumed.
    3. Insurance — reinstatement. Where a premium is paid under a conditional acceptance of an application for the restoration of a life insurance policy and, after a medical examination, the home office approves such acceptance and issues a home office receipt, which recited that the same would not be binding unless countersigned by tbe superintendent of tbe local district to which it was sent, tbe failure to countersign does not prevent sucb restoration from taking effect where it further appears that, after neglecting for several months to sign and issue said receipt to the applicant, the insurer finally refused to do so, because of insured’s subsequent poor health.
    Error to the Municipal Court of Chicago; the Hon. Stephen A. Postee, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Rehearing denied October 17, 1912.
    Hoyne, O’Connor, Hoyne & Irwin, for plaintiff in error; Carl J. Appell, of counsel.
    Matthew J. Huss, for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

The Metropolitan Life Insurance Company, hereinafter called the defendant, issued, August 17, 1901, its twenty-year endowment policy for $1,000, upon the life of Peter Delvaux, payable to Barbara Delvaux, plaintiff below. The premiums were payable half-yearly on February 17th and Aug’ust 17th, and it was the custom of defendant to allow thirty days grace. In February, 1908, Peter Delvaux obtained a loan from the company, for an amount equal to the full loan value of the policy at that time, and to its cash surrender value on August 17, 1908. Delvaux did not pay the premium due in August, 1908. He lived on a farm at Berwyn, Cook Connty, Illinois. One Brown, an agent for defendant, in Chicago, called on Delvaux on August 14, 1908, to collect the premium. Delvaux told Brown that he was unable to pay the premium then, bnt would try to dispose of his crops and arrange to pay it later. When Brown called the second time — three days later — Delvaux told him he had decided to give up the policy. Thirty or forty days after August 17, 1908, Brown called again on Delvaux and told him that the insurance company had instructed him, Brown, to call and tell Delvaux tliat his insurance could be revived by paying the premium then over due, without any additional expense, and without any examination, so long as Brown could see that Delvaux was in good health. Delvaux replied that “he would not consider it.” On November 28, 1908, Delvaux called at the Chicago office of defendant to revive the policy. Brown asked him if he was well; Delvaux replied that he was. Thereupon, Brown took him into the room of one Mills, the superintendent of defendant’s Chicago office, where he signed an application for the restoration of his policy and gave Mills $23.02, the amount of the overdue premium. The application was on a printed blank, and recites that “It is hereby declared that Peter Delvaux, present occupation, farmer, residence, South Berwyn, 111. * * * is this day alive and in sound health; * * * that he has not, since said policy was issued, been sick or afflicted with any disease * * * or been consulted or attended by any physician; * * * and it is expressly agreed * * * that if said company grant said restoration, it shall be under the condition that if the foregoing statements be in any respect untrue, the policy will be void and all premiums paid forfeited.” As evidence of the payment of the premium, he was given what is called a “provisional receipt,” reciting that Delvaux’ policy had lapsed for the non-payment of the August premium, and that he “has deposited with me, as his agent, $23.02, to be applied to the payment of said premium, provided that the Metropolitan Life Insurance Company, at its home office, approves the application for the restoration of said policy submitted this day. If so approved, I agree to pay to the company the said money, and to deliver to the said former insured the regular home office receipt in exchange for this receipt.” This was signed by Mills. Eight or ten days later, Delvaux was notified that he must submit to a physical examination, and he was so examined by a physician selected by the com-party. The physician reported in December, 1908, that so far as he conld ascertain from his examination, Delvanx was in sound health. Some time after the doctor’s report and prior to February 14, 1909, the New York office of defendant sent to its local agent or superintendent in Chicago the “regular home office receipt” referred to in the provisional receipt. This home office receipt, however, stated upon its face that it was not binding upon the company until countersigned by the company’s cashier at the home office, or the “superintendent of the district in which payment is made, ’ ’ and it never was so counter-signed, and was never delivered to Delvaux, but remained in the company’s office in Chicago until within a few days of the time the next premium was due. In February, 1908, it was handed to Brown, with instructions to deliver it to Delvaux if found to be in good health. Brown called on Delvaux at his home, and found that he was then not in good health. Brown reported the fact of Delvaux’s illness to the company’s superintendent in Chicago. Three days later, Brown called again and found Delvaux in bed. Brown asked for the “provisional receipt.” Delvaux’ mother handed it to Brown, who thereupon laid $23.02 on the bed and departed. Delvaux died of tuberculosis March 7, 1909, aged thirty-five years.

In the summer of 1908, Delvaux had consulted a Dr. O’Brien several times at the doctor’s office for eczema on the hands and face, and in the latter part of 1908, four or five times for acute gastritis. Just when these last visits to the doctor’s office began, the doctor repeatedly testified that he could not remember. During the “first days of January,” 1909, Delvaux consulted a Dr. "Whamond. The latter testified that Delvaux said to him at that time that “he had been sick several weeks and had been treating with Dr. O ’Brien. * * * I found him suffering from gastritis; * * * I suspected a lesion of the lungs; * * * about the middle of January, I examined Ms sputum and found he was suffering from tuberculosis; * * * it might have had four, five or six weeks duration, perhaps. Seemed to act very rapidly with him.” On tMs evidence the court, sitting without a jury, found the issues for the plaintiff, and after deducting from the face of the policy, ($1,000), the amount loaned on it by the company, rendered judgment for the balance, $800.66. To reverse this judgment defendant has sued out this writ of error.

A number of propositions of law were submitted by the defendant to be held or refused by the trial court. In one of these the court held that the policy lapsed by non-payment of the premium due August 17, 1908; that thereafter it was optional with the company to revive the policy; that the delay in acting on the application to revive would not revive the policy, unless the facts and circumstances were such as to lead Delvaux to believe that the company had approved his application. Whether this proposition is right or wrong is immaterial. The defendant is not in a position to complain of this holding of the court, for it requested the court to so hold.

. The court refused to hold: First, that plaintiff was not entitled to recover “under the undisputed facts in this case;” and second, that if Delvaux consulted, or was attended by, a physician, or was sick, or afflicted with any disease, after the date of the policy and prior to his application to restore the same, then the plaintiff could not recover.

The only material controversy over the facts, is as to the date when Delvaux first called on Dr. O’Brien, complaining of gastritis. Defendant’s counsel insist that the evidence shows that it was before the date of the application for restoration, November 28, 1908. We have examined the record on this point with car4 and find that while on direct-examination, in answer to a leading question, Dr. O ’Brien testified that it was before December, yet on cross-examination he would not say it might not have been in December, but said he was sure it was before January, because he kept records after January 1, 1909, and kept none before that date. Dr. “Whamond’s evidence above quoted, in view of the uncertainty of Dr. O’Brien’s evidence as to the exact date of this first visit, is consistent with, and supports, the view that Delvaux’ first visit to Dr. O’Brien concerning the gastritis was subsequent to November 28, 1908; and that neither Delvaux, nor Dr. O’Brien, knew on that date, that Delvaux was not in good health. At least, the evidence on that question was altogether too indefinite and uncertain to amount to proof of the charge that Delvaux knowingly misrepresented or concealed the facts regarding his attack of gastritis and the tuberculosis when he signed the application for restoration. The only fact shown, by a preponderance of the evidence, to have been knowingly concealed by Delvaux when he signed the application for restoration, November 28,1908, was the fact that he had consulted Dr. O’Brien three times in the summer of 1908 for eczema, which apparently disappeared before November. Upon reason and authority, we are of the opinion that the mere concealment of that single fact is not, of itself, sufficient to avoid the contract, if otherwise valid. The fact concealed, if known to the insurer, could have had no reasonable •bearing upon the risk assumed.

In Peterson v. Manhattan Life Insurance Co., 244 Ill. 329, an applicant for life insurance made the answer: “Has not been sick,” to a request in the application calling for “The names and addresses of physicians who had attended you or whom you have consulted during the last ten years, and for what diseases;” and it was shown by the evidence that within the ten year period, the applicant had suffered an attack of muscular rheumatism and had consulted a doctor at that time. The trial court held, as a proposition of law,' .that the answer to the question was a warranty, under the terms of the insurance policy, hut that to constitute a breach of such warranty, the disease shown to have existed must be something other than a temporary ailment which readily yielded to treatment. The Supreme Court held that the answer “has not been sick” was not responsive to the question, but prefaced its conclusion in that regard with the following language (p. 349): “We are disposed to regard as sound, the trial-court’s view of the character of the illness, proof of which would be essential to show a breach of the warranty.” That proof of a mere temporary ailment is not sufficient to constitute a breach of a warranty contained in an application for life insurance, is also held in the following cases; Billings v. Metropolitan Life Ins. Co., 70 Vt. 477; Woodward v. Iowa Life Ins. Co., 104 Tenn. 49; Franklin Life Ins. Co. v. Galligan, 71 Ark. 295.

In discussing the legal effect of similar questions and answers contained in an application for life insurance, the Appellate Court of the Fourth District, in Provident Savings L. A. Soc. v. Cannon, 103 Ill. App. 534, 551, said: “With reference to the answers and statements of the assured above discussed, as well as to those concerning the assured’s usual medical attendant, without reference to either the law or fact of waiver or estoppel, to avail as a defense it devolves upon appellant not only to prove that such answers and statements, or one of them, are fraudulent or untrue, that applicant knew that they were false at the time they were made, and that the fact concealed or the falsehood expressed was material to the risk; and these questions are all questions of fact for a jury to determine. Aetna Life Ins. Co. v. King, 84 Ill. App. 171; Metropolitan Life Ins. Co. v. Larson, 85 Ill. App. 143; Globe M. Life Ins. Assn. v. Wagner, 188 Ill. 133; Continental Life Ins. Co. v. Rogers, 119 Ill. 474.’’ That case was affirmed by the Supreme Court in 201 Ill. 260 (without, however, passing directly upon this point), and was followed by the same Appellate Court in Bagby v. Court of Honor, 151 Ill. App. 371, and by the Appellate Court of the Second District, in Kidder v. Supreme Assembly, etc., 154 Ill. App. 489, 493.

In Globe Life Ins. Assn. v. Wagner, 188 Ill. 133, the court held that a statement by an applicant for life insurance to a medical examiner that none of his brothers was dead, when in fact one had been dead for four years, was not such a misrepresentation of a material fact as to bar a recovery on the policy, in the absence of proof that such misstatement was intentionally and fraudulently made.

In Minnesota Life Ins. Co. v. Link, 230 Ill. 273, it was held that answers to questions put by a medical examiner relating to the condition of health of the insured at the time of his application for insurance, and as to whether the applicant had ever suffered from any of an enumerated list of more than sixty diseases, were not to be construed as warranties, the proved falsity of which in any particular would prevent a recovery on the policy whether such statements were material or not, and whether made in good faith or not, but were representations merely, and that not only proof of their falsity, but also proof that they were material to the risk and were known to be false by the insured at the time they were made, is^required in order to constitute a good defense to an action on the policy.

Both of the last two cases quote with approval from the opinion of Justice Harlan in Moulor v. American Life Ins. Co., 111 U. S. 335, which holds that the word “untrue” as used in such expressions as: “if either of said answers or statements be untrue in any respect, then this policy shall be null and void,” cannot be given its literal meaning, but must be construed to mean fraudulently and intentionally untrue, if from the context or the nature of the inquiry or statement made, that meaning can be reasonably implied.

The words “sound health” as used in the application for restoration, mean “free from any disease or illness that tends seriously or permanently to weaken or impair the constitution.” Clover v. Modern Woodmen of America, 142 Ill. App. 276; Court of Honor v. Dinger, 221 Ill. 176.

The questions here involved, then, come to this: First: Does the evidence show that on November 28, 1908, Peter Delvaux was, to .his knowledge, affected with any disease tending seriously to impair his constitution, and second, does the evidence show that his failure to mention, at that time, that he had consulted a doctor regarding a-temporary condition of eczema, was intentional and fraudulent? We think both these questions must be answered in the negative, upon the record before us.

It is also insisted that there was no acceptance by the insurance company of the application for restoration. ' The conditional acceptance by the Chicago office was approved by the “home office” of defendant, after a medical examination was had and a favorable result reported to the company. The “regular home office receipt” was issued by it and sent to the Chicago office. According to the terms of the “provisional receipt” it was Delvaux’ right to receive and it was Mill’s duty to deliver to him the “home office receipt” as soon as issued, and in exchange for the “provisional receipt.” There was no evidence tending to show that Delvaux agreed to or was even aware of, any custom on the part of the insurance company’s agents to withhold it until they or one of them should find the time or opportunity to make a further and later examination of the insured’s condition of health. It is undoubtedly true that the insurance company had the legal right to accept Delvaux’ application to restore his lapsed policy, upon such terms as it saw fit to impose ; but having once imposed its conditions, and having accepted Ms money upon the conditions so imposed, it could not thereafter add other and further conditions without his consent. We are unable to agree with the contention of defendant’s counsel in this respect.

The judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    F. C. Damm, Defendant in Error, v. O. S. Bowman and United Religious Press, Plaintiffs in Error.
    Gen. No. 16,858.

      Replevin — when judgment against corporation not error. On replevin for a machine, it is not error to give judgment against the defendant corporation instead of the president and manager alone, with whom it is contended an agreement concerning the machine was made, where the machine was on the premises of the corporation and was detained by both the president and the corporation.
    Error to the Municipal Court of Chicago; the Hon. Chaeles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Johnson & Molthrop, for plaintiffs in error.
    William H. A. Rust, for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

The defendant in error, hereinafter called the plaintiff, sued the plaintiffs in error, hereinafter called the defendants, in replevin in the Municipal Court and recovered a judgment by which, after finding that the right of property is in the plaintiff, but that it was rightfully held by the defendants for the payment of $135 advanced by the defendants to the plaintiff, it is ordered and considered that upon the payment of $135 to the defendants within thirty days, the plaintiff have and retain the property replevied, but in default of such payment, the defendants have a return of the property so replevied. This writ of error is brought to reverse said judgment.

In March, 1910, the United Eeligious Press, a corporation, was engaged' in printing and publishing religious publications. It owned and occupied a building on Fortieth street, Chicago. Plaintiff, a machinist, was employed at a salary of $30 a week to take care of the machinery used in the printing establishment. The defendant, Bowman, was the president and manager of the defendant corporation. In the latter part of March, 1910, Damm told Bowman that he had learned through a man named Knapp, that there was a linotype machine in Indianapolis which had been through a fire. Damm testified that he said to Bowman that the machine could be bought and rebuilt and some money made on it, and proposed that he would buy the machine, rebuild it and give Bowman one-half the profits, if Bowman would furnish the necessary money, and that Bowman replied to this proposition, “All right, you go and buy the machine and you can rebuild it, and if it proves, to be a good machine, I will probably buy it myself.” Bowman testified that the substance of this conversation was, that Damm came to him and told him of the machine and said he thought it could be bought for $50; that “we had better buy it, and asked me if we had the money to purchase the machine. I told him he had better learn if the bargain could be had, and if it could, we would send him after it at once”; that Damm immediately sent a telegram and reported that the machine was still there “and if I said so, he would go that night and buy the machine. ’ ’ Both witnesses agreed that Bowman then gave Damm a check of the defendant corporation for $50 and $12 in currency, and Damm went to Indianapolis the same night and bought the machine. He was obliged, however, to pay $75, and testified that he pawned his watch to raise the balance of the amount required for the purchase. Damm took a bill of sale in his own name, boxed, crated and shipped the machine to Chicago, where it was taken to the defendants’ place of business and placed in a room apart from the other machines. A week later, plaintiff quit the employ of the defendant company, but by agreement, was permitted to use a portion of the defendants’ premises for the purpose of repairing machines belonging’ to others. The plaintiff rebuilt the machine in question, and for that purpose he purchased, from time to time, a number of parts and fittings, and presented, bills for such payments to Bowman, who paid for them with the company’s checks. It was conceded on the trial that the defendants in this manner refunded to the plaintiff all the money that he ever paid out for or on account of the machine so purchased and rebuilt. In May, 1910, plaintiff requested Bowman to advance $175 more for other parts and fittings, which Bowman declined to do, whereupon, or soon after, plaintiff tendered to Bowman the sum of $135 in cash (which was the amount previously paid out by the defendants for the machine and the different parts added to the same), and demanded possession of the machine; and upon the refusal of the defendants to deliver possession, brought suit in replevin and took the machine away.

It is first contended by counsel for the defendants that there is no evidence to sustain a judgment against the defendant corporation; that the plaintiff’s only claim was, that the transaction was one between himself and Bowman individually, and therefore, the judgment should have been against Bowman alone, if against either. We cannot agree with this contention. The machine was in the premises of the defendant corporation, and was detained by both defendants. We think, therefore, there was no error, so far as the point thus made is concerned.

It is next claimed that the finding and judgment of the court is contrary to the evidence. We have carefully examined the evidence contained in the stenographic report of the trial, and we think the finding of the trial court is not so manifestly against the weight of the evidence as to justify this court in reversing and remanding the case for a new trial. Donelson v. E. St. Louis Ry. Co., 235 Ill. 625. The plaintiff’s theory was, that he bought and was entitled to buy the machine in his own name; that it was his property; that the defendants’ interest therein was only an interest in the profits, and the evidence of the plaintiff and his witnesses supports this theory. The defendants’ theory was, that the plaintiff was a servant in the employ of the corporation; that his time and services belonged to it, and that the machine and new parts were bought with its money. The defendant, Bowman, admitted, however, that he agreed with the plaintiff that the plaintiff should have more than his wages for his work on the machine and for “finding the bargain,” but claimed that a dispute arose as to whether such additional sum should be $100 or $500. There was evidence that the plaintiff hired and paid workmen to help him rebuild the machine, and apparently Bowman 'knew that such was the fact. While the question of the preponderance of the evidence is one that is not free from difficulty, that question depends so much in this case upon the credibility of the witnesses, that we cannot say that the trial court, who saw and heard the witnesses, erred in finding for the plaintiff. There was no suggestion or theory of partnership advanced by either party, either in the trial court or in this court.

The judgment of the Municipal Court will be affirmed.

Affirmed.