author: Mr. Justice Browh

text:
    Shelton C. Burr, Appellant, v. Ednah J. Tobey et al., Appellees.
    Gen. No. 17,555.
    1. Conflict of laws, § 24

      —what law governs as to validity of a married woman’s contract. A note and a trust deed executed by a married woman and valid under the laws of this State are not rendered invalid by the fact that such note was signed and indorsed, and such trust deed signed and acknowledged, in a foreign State, it appearing that the transaction was one by a resident of this State merely transiently out of Illinois, and was made entirely with a view to the law of this State.
    2. Mortgages, § 175*—what defenses are available against the assignee of a mortgage. Any defense which is good against the original holder of a mortgage or mortgage trust deed is good against the assignee in an action to foreclose.
    3. Husband and wife, § 156f—when accommodation note and trust deed of wife are valid. Where a wife executes a note and a trust deed for the accommodation of her husband, such note and mortgage are valid and enforceable in the hands of anyone who has given value for it, or the assignee of such party, and the fact that the wife was induced to execute the note and trust deed by the false representations of her husband does not render the transaction void.
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honobe, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded with directions.
    Opinion filed October 13, 1913.
    Rehearing denied October 27, 1913.
    Bryan, Duval, McCormick & Wilber, for appellant.
    Samuel B. King and George R. Mitchell, for appellees.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number,

   Mr. Justice Browh

delivered the opinion of the court.

This is an appeal by Sheldon C. Burr from a decree of the Circuit Court dismissing for want of equity the amended bill in chancery of Sheldon C. Burr and Wm. E. Church, Trustee, against Ednah J. Tobey and Charles H. Tobey, and granting relief on a cross-bill in the same suit filed by Ednah J. Tobey against Shelton C. Burr, William E. Church as Trustee and Charles H. Tobey, her codefendant in the original bill.

Ednah J. Tobey was at one time the wife of Charles H. Tobey, but at the time the bill and cross-bill were filed had been divorced from him. The original bill prayed the foreclosure of a trust deed dated March 11, 1905, from Ednah J. Tobey and Charles H. Tobey, her husband, of certain real estate in Chicago, with connected improvements, fixtures and appurtenances, to secure a note of five thousand dollars, which the bill alleged was held by Shelton C. Burr and had become due and payable. The cross-bill filed by Ednah J. To-bey prayed for the cancellation and discharge of said trust deed and the lien it purported to give, and an injunction against any attempt to enforce said trust deed or to assert a lien upon her property, real or personal. The decree granted the injunction prayed for and declared the trust deed cancelled and “of no effect or validity as against the property therein described or as against the said Ednah J. Tobey or any person claiming by, through or under her, or in favor of any person being or claiming to be an assignee thereof.” It was also ordered that the note and trust deed be -surrendered to the clerk of the court to be by him marked:

“Cancelled by order of the Circuit Court of Cook County. Entered January 4,1911, in the case of Burr v. Tobey. General No. 268510.”

There was also an order in the decree adjudging all the costs in the cause against Shelton C. Burr and in favor of Ednah J. Tobey.

There is much in the record and in the arguments in this case which in the view we take of it is immaterial. Of those questions which seem to us controlling, the first is as to the validity of the note and trust deed as against the appellee Ednah J. Tobey. It is insisted by her that they are invalid because signed and acknowledged by her in Florida while she was a feme covert. The law of Florida, it is said, must, in the absence of any showing to the contrary, be presumed to be the common law; and by the common law the note in question, being an executory contract, was not within the power of a married woman to make, while the trust deed was a mere incident of the contract of indebtedness. The court below in its decree adopted and affirmed this proposition. To sustain the premises of the argument in favor of this theory of the law many authorities are cited, and several discussed, by counsel for Ednah J. Tobey, appellee, but we do not think them properly applicable to this ease.

The note in question was dated “Chicago, Illinois, March 11, 1905.” It was signed by Ednah J. Tobey, who promised thereby to pay to the order of herself five thousand dollars with interest, etc., five years after date, at the office of William E. Church in Chicago, Illinois. The note recited that its payment was secured by a trust deed of even date on real estate in Cook County, Illinois, to William E. Church, Trustee. It was indorsed in blank by Ednah J. Tobey.

The trust deed begins: “This indenture made this eleventh day of March, 1905, between Ednah J. Tobey and Charles H. Tobey, her husband, both of Chicago, Cook county, Illinois, hereinafter styled the party of the first part, and William E. Church of the County of Cook and State of Illinois as Trustee:” It conveys in trust to secure the before described note, real estate “lying and being in the City of Chicago, County of Cook and State of Illinois,” and is signed and sealed by Ednah J. Tobey and Charles H. Tobey. Ednah J. Tobey acknowledged the deed, as appears by the certificate of a notary public in the county of Dade in the State of Florida, March 15, 1905. Charles H. Tobey acknowledged it in Cook county, Illinois, on March 20, 1905, and it was filed for record in the recorder’s office of Cook county on March 20, 1905.

The note and trust deed were signed by Ednah J. Tobey in Florida at the date of acknowledgment of the trust deed by her. At that time Ednah J. Tobey was the wife of Charles H. Tobey and their relations were cordial. They resided together in Chicago, Illinois, in a house on the property conveyed by the trust deed. With her mother, and apparently at her mother’s invitation and accompanied by her children, she had in February, according to her own testimony, but according to her mother’s more definite recollection, about March 5th or 6th, reached Cocoanut Grove in Florida, a winter resort, for a winter “outing,” maintaining, as she herself testified, ’ her house in Chicago meanwhile. She returned to Chicago and her home about the first of May, having -previously left Florida for some place in “the mountains.” Her stay in Florida was plainly that of a transient tourist. She signed and indorsed the note and signed and acknowledged the trust deed because her husband sent them to her in a letter, saying that he wished her to do so in order that five thousand dollars might be borrowed for his benefit from an Illinois estate of which he was trustee and active manager. The title to the real estate was in her.

There is no case of which we know that under these circumstances holds such a note and trust deed subject as to its validity, force and effect to the law of the locality where the mere manual attachment of a signature and the deposit in the mails of the signed document are made. It is true that when it becomes important to decide when or where the acceptance of a commercial proposal is made, the delivery of such an acceptance to the mails, the common agent of all, is held to be a delivery to the offerer. But this doctrine has no relation to the present case. Nor, to take the strongest of the authorities cited by the appellee’s counsel, can Forsyth v. Barnes, 228 Ill. 326, in which the Supreme Court of Illinois held that a note and warrant of attorney executed in Ohio by a woman during coverture were void, be said to go so far as to imply the invalidity of a note and deed executed under circumstances like those presented in this case. In Forsyth v. Barnes it is indeed said that “In view of the fact that appellants were sued in Cook county and there is nothing in the record to indicate that their domicile is elsewhere, it must be presumed that Cook county is the domicile of Anna M. Forsyth,” and that “The general rule of law is, that as between the law of the place where a contract is made and of the place where the married woman is domiciled, her capacity to make a contract is governed by the former and not by the latter;” but it is markedly made a ground of the decision that the note in question was payable in Ohio, that is, that the contract was not only made “but to be performed” in Ohio.

In the case at bar the transaction was one by a resident of Illinois merely transiently ont of Illinois; was uncompleted until the delivery at Chicago of the money from the estate for whatever purpose it was used; was to be performed by payment in Illinois, and conveyed Illinois land to a resident of Illinois. It was made entirely with a view to the law of Illinois and as is aptly quoted by appellant’s counsel from Lord Mansfield in Robinson v. Bland, 2 Burr. 1077; “The law of the place can never be the rule where the transaction is entered into with an express view to the law of another country as the rule by which it is to be governed.” In view of what we hereinafter hold as to the note and trust deed being accommodation paper, we call attention to the rule stated with citation of authority in the article on “Accommodation Paper” (1 Amer. & Eng. Ency. of Law, 342, note 2), that where an accommodation indorsement is made in one State to be used in another, the law of the second State governs.

We do not think the note or trust deed invalid because signed by Mrs. Tobey in Florida.

Much attention is paid in the argument here, as there was in the trial in the court below, to the question whether Shelton Burr may be considered an innocent purchaser from the Ludington estate of the note secured by the trust deed sought to be foreclosed. This question of course might be of controlling importance in determining whether the relief granted on the cross-bill cancelling and ordering the note delivered up was proper, but in the antecedent and paramount issue of whether foreclosure of the trust deed should be decreed it is not a factor. The law is settled in Illinois that any defense which is good against the original holder of a mortgage or mortgage trust deed is good against the assignee in an action to foreclose. Olds v. Cummings, 31 Ill. 188; McAuliffe v. Reuter, 166 Ill. 491; Buehler v. McCormick, 169 Ill. 269; Bouton v. Cameron, 205 Ill. 50.

And while the note might be good in the hands of an innocent purchaser, although the security was not, and the relief decreed on the cross-bill therefore erroneous, even though the original bill was properly dismissed, yet if the original bill were improperly dismissed all relief on the cross-bill must of necessity be denied.

In the view that we take of the case it becomes consequently entirely unnecessary to consider or discuss the very unsatisfactory and confused condition of the evidence concerning the consideration for, and the circumstances of, the alleged assignment of the note from C. H. Tobey as trustee of the Ludington estate to Shelton Burr, the appellant.

If the security was good as against Ednah J. Tobey in the hands of Tobey as trustee of the Ludington estate it is good in the hands of the actual holder by delivery, who brings it into court, and may be foreclosed, leaving all question of consideration and transfer between the Ludington estate and Burr to be settled between them. We think it was good, not as the counsel for appellee states the contention of the appellant, because C. H. Tobey as trustee of the Ludington estate was a purchaser of the note from C. H. Tobey individually, and not therefore chargeable as trustee with notice or knowledge of a want of consideration, which as an individual he knew existed, but because the note and collateral thereto was accommodation papér so far as Ednah J. Tobey was concerned. Neither note nor trust deed can, in our opinion, be successfully defended against by her for want of consideration between her and C. H. Tobey as an individual, or for any misrepresentation which he may have made to her as to the purposes, for which he desired five thousand dollars from the Ludington estate, if she made the papers at his request with the avowed purpose of securing from the Ludington estate five thousand dollars, and therefore for his accommodation. Miller v. Lamed, 103 Ill. 562.

Deplorable as may have been the conduct of her husband in falsifying big needs, if he did so, doubly deplorable because of the subsequent condition of legal separation, there is nothing in the evidence which shows that she did not thus make the papers for the purpose and with the intent described. Mrs. Tobey alleges and may be considered to have satisfactorily proved that, in asking from her for his accommodation the execution of the note and trust deed, Charles H. Tobey treated her under the circumstances dishonorably and lied to her concerning his pecuniary position, but this was not that kind of “fraud or circumvention” in obtaining the execution of the instruments which make them void. Between the Ludington estate and Ednah J. Tobey, a full consideration passed. The notes and trust deed which were transferable by delivery went to the estate for five thousand dollars and five thousand dollars came from the funds belonging to the beneficiaries of that estate and went for the accommodation of Charles H. Tobey. That was exactly what Ednah J. Tobey, led, as she says and proves, by her affection for her husband and by his false statements to her about the pecuniary stress that he was under, intended should happen. The action on her part was purely for his accommodation and at his request, which distinguishes it entirely from the cases cited by the appellee from New Jersey, Maryland and Missouri, where mortgages were set aside which had been obtained from a wife by creditors of a husband through their active and false representations. In the case at bar there was no pressure put on Ednah J. Tobey from the Ludington estate or from any other source, nor any false representation made to her except by her husband, for whose accommodation she, unfortunately for herself, as things turned out, sacrificed property standing in her name. And in the hands of anybody who has given value for it, or the assignee of such party, not only an accommodation note, but also the mortgage which secures an accommodation note, is valid and enforceable. As our Supreme Court says in Miller v. Larned, 103 Ill. 562 (p. 580): “Any application of the doctrine of Olds v. Cummings [supra] to the maker of a mortgage to secure accommodation paper, would be to make a most equitable and reasonable doctrine the means of enabling a party to perpetrate a great wrong on another.”

In the divorce decree between Ednah J. and Charles H. Tobey it was provided that Charles H. Tobey should assume the payment of the mortgage herein sought to be foreclosed. This doubtless gave enforceable rights to Ednah J. Tobey against Charles H. To-bey for any loss which she might suffer through foreclosure, but it did not abridge the rights of the Ludington estate or of a subsequent holder of the note and trust deed.

We feel obliged to reverse the decree of the Circuit Court as an entirety and to remand the cause with instructions to that court to enter a decree of sale upon the original bill and dismiss the cross-bill for want of equity.

Reversed and remanded with instructions.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    Carmelo Umina, Defendant in Error, v. H. D. Moreland Company, Plaintiff in Error.
    Gen. No. 17,654.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Abthttb Deselm, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed with finding of facts.
    Opinion filed October 13, 1913.
    Statement of the Case.
    Action by Carmelo Umina against H. D. Moreland Company for damages for personal injuries. From a judgment for plaintiff for six hundred dollars, defendant brings error.

      Abstract of the Decision.
    1. Master and servant, § 388

      —when a servant assumes the rislc of injury. The common law duty to provide a safe place to work does not render a contracting company liable for injuries sustained by a servant, even if such a company was guilty of negligence in maintaining a runway over which barrows of mortar were wheeled or if such runway was rendered unsafe by mortar dropping thereon, where the conditions were apparent and the servant had been long employed under them.
    2. Master and servant, § 302*—when doctrine of assumption of rislc does not apply. If an accident to a workman results from a violation of L. 1907, June 3, p. 312, J. &. A. Iff 5368-5377, as to the protection of workmen, the doctrine of assumption of risk does not apply.
    3. Master and servant, § 155*—what constitutes “scaffold” or “mechanical contrivance.” The Act of June 3, 1907, J. & A. f 5368, for the protection of workmen, providing that all “scaffolds” or other “mechanical contrivances” used in the erection, etc., of buildings shall be constructed in a safe manner so as to prevent the falling of material thereon, does not apply to a runway over which barrows of mortar are wheeled from the ground into the first floor of a building about nine feet above the ground.
    4. Master and servant, § 155*—what constitutes a safe place of worlc. The Act of June 3, 1907; J. & A. f[ 5368, requiring scaffolds and mechanical contrivances to be “constructed in a safe, suitable and proper manner” and “so constructed as to give proper and adequate protection,” does not require absolute safety, but that amount of protection for employes and others working or passing about a building as is consistent with the practicable carrying on of the work; and a runway, over which barrows of mortar are wheeled into a building, consisting of a short single plank fourteen inches wide running from the ground to a wooden horse and another single plank of the same width twenty-five feet long, running from the horse up to the first floor of the building, complies with the statute.
    Ralph F. Potter, for plaintiff in error; Alfred T. Johnson, of counsel.
    Bernard P. Barasa, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Brown

delivered the opinion of the court.


text:
    In Re Estate of Albert G. Beaunisne, deceased. Appeal of Mary K. Beaunisne, Administratrix, Appellant, v. Robert A. Scholz, Appellee.
    Gen. No. 17,743.
    1. Corporations, § 27

      —when a person is promoter rather than a subscriber or vendee of stock. Evidence held to show that a subscriber to stock was a fellow-adventurer in a speculative enter-prize, viz., the building of a railroad in a foreign country, and that such subscriber knew or should have reasonably inferred from all the circumstances that his money was to be used in the preliminary work, the corporation not being definitely provided for.
    2. Evidence, § 330*—when parol evidence is admissible. Where a receipt stated that certain money' was received as payment for stock in a corporation to be organized to own a certain railroad, extrinsic evidence was competent to show the real contract and its terms, such as when the stock was to be delivered.
    3. Corporations, § 126*—what must be considered in determining when stock must be tendered. Where a business adventure, to establish a railroad in a foreign country, involved an issue of bonds and considerable preliminary work before the railroad corporation could be formed, held that all the circumstances connected with the development of the enterprise should be considered in determining whether stock in the corporation was tendered to a subscriber within a reasonable time.

      4. Contracts, § 297*—what constitutes waiver of demand for performance. A second demand for delivery of stock in a corporation. framed apparently on a different theory of the subscriber’s rights, would waive and supersede the first demand.
    5. Contracts, § 299*—what constitutes “reasonable time.” Held that three months was a reasonable time for tendering stock in a corporation, although a subscriber demanded delivery “forthwith.”
    Appeal from the Circuit Court of Cook county; the Hon. H. Stehlinq Pomeroy, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed and judgment here.
    Opinion filed October 13, 1913.
    Tolman & Redfield, for appellants; Edgar B. Tolman and Henry P. Chandler, of counsel.
    Henry S. Shedd, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Brown

delivered the opinion of the court.

The Probate Court of Cook county on February 6, 1909, allowed a claim of Robert A Scholz against the estate of Albert C. Beaunisne for $1,177.75, based on the following statement:

“April 2,1908.
Estate of Albert G. Beaunisne, deceased,
To Robert A. Scholz, Dr.

To cash deposited with said deceased February 10, 1903, to be used in payment for stock to be subscribed for and issued to said Scholz in a corporation to be organized for the purpose of owning and operating a railroad from Port Yarbaros to Alamos in the State of Sonora, Mexico, and thence to San Bernado and Josefita Mineral in the same state under the concession granted for that purpqse by the Government of the Republic of Mexico. $1,000. Interest on same from July 17, 1905, at 5% per annum. ”

The administratrix of the estate appealed to the Circuit Court of Cook. county, where the cause was tried de novo without a jury. A judgment was again entered in favor of the claimant on May 10, 1911, for $1,292. From this judgment the administratrix appealed to this court, assigning as error that the finding and judgment of the Circuit Court are contrary to the law and the evidence and that the court erred in refusing to hold certain propositions of law tendered by the administratrix.

The canse was tried in the Circuit Court on a stipulation as to the facts, supplemented by the testimony of A. P. Ballou, a business associate of the decedent, introduced by the defendant estate, and by the testimony of the claimant Scholz in his own behalf. This testimony was confined to the only question of fact which was in controversy, how far the business enterprise and the proposed plan of procedure in relation to it by those having it especially in charge were explained to Scholz before he invested the money in it, for which he is now suing? This testimony we will comment on hereinafter.

The matter contained in the stipulation of facts is all material, hut the stipulation is too long for quotation in full, and a recitation of it in its entirety is unnecessary for our purpose.

The claimant paid Albert Gr. Beaunisne one thousand dollars on February 10, 1903, and received from him the following writing:

“Chicago 2-10, 1903.
$1000. Received from Robert A. Scholz One Thousand Dollars as payment in full for an amount of stock of the par value of $5,000.00 in the corporation to be organized at a capitalization of not less than $5,000,000 par value, for the purpose of owning and operating a railroad from Port Tarbaros to Alamos in the State of Sonora, Mexico, and thence to San Bernardo and Josefita Mineral in the same State under the concession granted for that purpose by the Q-overnment of the Republic of Mexico.
Albert Gr. Beaunisne.”

Scholz has never received the stock. July 10, 1905, he delivered to Beaunisne a written demand for the thousand dollars which he had paid, stating in the same that he withdrew his consent to subscribe for stock in the corporation described in the receipt of February 10, 1903, which he recited, and tendered to Beaunisne on payment of the thousand dollars.

To this demand Beaunisne replied that he would not return the thousand dollars and that he could not deliver to him the stock because the corporation had not been organized. August 1, 1906, Scholz made another written demand on Beaunisne, reciting as before the receipt of February 10, 1903, and concluding:

“Whereas said stock had never been delivered to me:
Now, therefore, I hereby demand that you deliver to me forthwith the said stock mentioned in the receipt or repay to me the said sum of One Thousand Dollars. ’ ’

August 1,1906, Beaunisne and associates filed in the office of the auditor of the territory of Arizona articles of incorporation of the Southern Sonora & Alamos Railroad Company with an authorized capital of $5,-000,000. August 23, 1906, Beaunisne and others who had obtained and held a concession from Mexico for the railroad conveyed to the corporation their rights under the concession and in certain real estate acquired for right-of-way purposes and in the deposit of $13,200 made with the Mexican Government to secure the performance of the concession contract. The railroad corporation then entered into a contract with the Continental Construction Company for the construction of the railroad and its equipment, the amount of the contract being payable in bonds and stock of the railroad company. On October 26, 1906, after these things were done Beaunisne tendered to Scholz shares of stock in said Southern Sonora and Alamos Railroad Company of the par value of five thousand dollars. Scholz refused to accept said shares. They were, at the trials in the courts below, brought into court for the purpose of making the tender good.

Justification of the refusal seems by appellee to be put on two grounds: First, that the tender was not made within a reasonable time either of the contract which it is contended was embodied in the original receipt, or even of the' second demand, which either the stock or the money would have satisfied. It is, however, also contended that the second demand (of August 1, 1906) did not as a matter of law waive or alter the rights accruing to Scholz to have his money returned to him which sprang from the original contract, the delay in fulfilling it, and his first demand of July 10,1905.

The second justifying reason asserted by Scholz for refusing the tender is that he holds himself to have been an investor simply and not a promoter, and that the corporate enterprise was abandoned before the corporation was formed. To substantiate the second branch of this proposition he cites the facts incorporated in the stipulation that an attempt to negotiate the underwriting and sale of bonds, the proceeds of which were to build the road, lasted through 1903, 1904 and a part of 1905, but was then abandoned; that all the money paid in to Beaunisne by' Scholz and other persons similarly subscribing, about $30,000 in all, was expended before July 13, 1904, in this attempt and in securing a concession from the Mexican Government, and in making preliminary field surveys of the proposed road and obtaining right-of-way, and that the concession was terminated by the Mexican Government May 21, 1907, on account of the failure of the concessionaires to construct the first twenty kilometers of the railroad within the time prescribed by the concession contract, which extended only to April 20,1907. Although an application for renewal of the concession was pending before the proper department of the Mexican Government for about six months, it was denied and the railroad described in the receipt was never constructed.

The defense of the estate to the claim is based on a different view of the facts above set forth as related to and connected with other circumstances.

That Scholz never actually received anything for his thousand dollars and that the stock would have been worthless in his hands had he accepted it in October, 1906, is conceded, but it is contended that Scholz was not a mere investor but stood (as did each of those subscribing to this enterprise) towards Beaunisne as an associate in a promoting and speculative enterprise; that Beaunisne was simply the treasurer of a committee of organization; that it was understood and agreed that the money contributed by the associates, including Scholz, was to “promote the success of a mining enterprise by the construction of a railroad,” and that it was so used to the entire satisfaction of all legal or moral obligations of Beaunisne.

It is also contended that even if a stricter and a technical construction of Beaunisne’s obligations is to be ah tached to the transactions and the receipt of February 10, 1903, those obligations were fulfilled by the tender of October 26, 1906, that “a reasonable time” for the tender of the stock is not to be determined by the time that it might have taken to organize a corporation in Arizona and distribute certificates, but that there should be also taken into account “the grounds which led to the postponement of the organization of the Company, the absence of any damage to appellee from the decision not to organize earlier, and the recognition by the appellee in his second demand that a tender of the stock less than three months before it was actually tendered would have satisfied the agreement,” and also “the speculative nature of the enterprise, the difficulties of procuring the funds necessary for the construction of the railroad in question, the decision of the promoters to postpone the incorporation until the persons subscribing such funds could be consulted in respect thereto, and all other circumstances connected with the development of the railroad enterprise as shown by the stipulation and evidence.” Propositions of law tendered to the court, which mentioned these matters as proper for the court to consider in determining whether the stock was tendered within a reasonable time, were refused by it. The evidence presented by the defendant estate in furtherance of this view was the testimony of A. P. Ballou, hereafter referred to, and the following facts incorporated in the stipulation in addition to those already recited.

Before the money was paid to Beaunisne and the receipt given Scholz, Beaunisne and other persons owned shares of stock in the International Copper & G-old Company, an Arizona corporation which owned certain mines near Alamos, San Bernardo and Josefita Mineral. Transportation facilities to and from the mines were important to said Company and its financial success would be promoted by a railroad from the mines to the Pacific Ocean. For the promotion of the success of the mining enterprise Beaunisne, with Ballou, DeGolyer and Freeman, three other stock-holders in the mining company, agreed to procure the construction of such a railroad. This ‘ ‘ Committee of Organization” was to obtain a concession from the Mexican Government for the construction of the road, to make the preliminary surveys, to pay the deposit required by the Mexican Government and to organize a corporation which should take over said railroad concession and enter into a contract with some construction company to build the road and accept payment for construction in bonds of the railroad company, to be secured by a mortgage upon the railroad. As a special inducement to those who furnished the preliminary funds to carry the enterprise to a point when such a contract could be made and bonds issued secured by a mortgage, the Committee of Organization agreed that the stock of the corporation should be subsequently issued and delivered at twenty cents on the dollar to persons who should advance the money required to carry on the enterprise until the bonds were issued and sold, and that the money advanced should be used in the expense of obtaining said concession, making the preliminary surveys and doing the work necessary to be done before the construction contract could be entered into and the bonds issued, underwritten and sold.

Scholz paid his money to Beaunisne as treasurer of the Committee of Organization, and the relation of vendor and vendee was not created nor intended to be created by the payment and receipt of the money. The attempt to secure the sale and underwriting of the bonds of the proposed railroad company was made through one W. H. Norledge, whose expectation was to sell them on the English financial market. Norledge requested the Committee of Organization to postpone the formation of a corporation until he had secured the necessary financial arrangements in England for the underwriting and sale of such bonds in order that the persons furnishing the money for the purchase of the bonds might have the corporation organized under the laws of such state or country as they should prefer and with such charter and by-laws as should be agreeable to them. For this reason the organization of the corporation was delayed, although it would not have taken more than three weeks at any time to organize such a corporation under the laws of Arizona and issue stock.

The essential gist of the testimony of Ballou, herein-before referred to, was that Scholz was, as was the witness and as was Beaunisne, a stockholder in the International Copper & G-old Company; that he (Ballou). had at least three conversations with Scholz, in which the mining proposition and the desirabilty of a railroad in connection therewith and the plan of building-one were discussed. Ballou testified:

“We wanted the view of the mining company’s stockholders and we wanted to get the money with which to carry on the work, the preliminary work of organizing the company and placing- it on a basis where it could undertake the work. We believe the bonds would be salable, because we believed there was a big opportunity for a railroad. We believed a railroad would be the means of following out our project, in fact it was almost necessary for the purpose of carrying on our mining project, and I advised him (Scholz) to sustain us in that project. I don’t remember Mr. Scholz’ reply, except that it covered a number of questions regarding the situation and our plan of operation. I remember that he inquired into it very carefully because he was always of an inquiring nature and liked to know the inside facts of things. * * * I remember stating that we did not intend organizing a company until we had reached the point where we could make some definite statement with regard to the bond issue for the reason that the capitalists whom we might interest in the project might have something to say with regard to which state the railroad company should be organized in, and therefore this preliminary plan was one whereby those who paid money into it would have a substantial interest in the stock when the company was organized. ’ ’

Mr. Scholz denied that this full explanation was given him. He testified:

“I want to say he (Ballou) did not explain to me what this money was going to be used for at all; he simply mentioned that Mr. Beaunisne and a few other men had given money into it and started a railroad down there and were going to sell stock, and for me to get up the money and get in while the stock was low. # * * He (Ballou) said this is a good thing, that a railroad was to be organized, that it was a question of days when it would be placed; the stock would be placed on the market, and it would take a bound immediately. * * * This organization was not stated to me as it has been stated here; in other words, this was not organized, and I thought from my conversation with Mr. Ballou that if I put my money in and if I became dissatisfied within six months I could withdraw and it was within six months that I began to try to withdraw.”

On cross-examination he testified that he knew when he furnished the money that the corporation was not organized, but thought the road was in process of construction. He said: “I thought they were pushing it from the Coast, pushing the survey. I know a railroad has to be surveyed before it is built and graded before the rails are laid.”

Aside from the question whether the tender of the stock in October, 1906, was a sufficient satisfaction of the obligation incurred by Beaunisne and expressed in his receipt, the position of the appellee in regard to the theory of the defense is that as the receipt by implication contains a contract requiring an affirmative act on the part of Beaunisne (namely, to secure and deliver to appellee within a reasonable time stock of the par value of five thousand dollars), it could neither be contradicted nor explained nor varied by parol evidence. (It was stipulated that objections to the materiality and probative force of facts stated in the statement of facts might be made by either party.)

To this point appellee’s counsel cites in argument many authorities which he deems in point. That the court below did not hold this view would seem to be indicated by its holding this proposition of law, with which we are in accord.

“The Court holds as a matter of law that the receipt set out in the stipulation of facts herein is not the contract, nor does it contain or purport to contain all the terms of the contract or agreement between the claimant and the decedent herein, but that said receipt is only evidentiary of the agreement under which said claimant subscribed the sum of money herein mentioned, and that whatever evidence is contained in the stipulation of facts and the testimony of the witness Ballou and of said claimant, bearing on the understanding and agreement of the claimant and decedent in regard to the purposes for which said money was invested and for which it was to be used, may properly be considered by the Court in determining what was the real contract between the parties.”

We cannot, from all the evidence submitted in this cause taken together, come to any other conclusion than that the appellee was a fellow-adventurer of Beaunisne and his associates in a- speculative enterprise; that he knew or should have reasonably inferred from all the circumstances and from the nature of the transaction that the purpose for which his money was to be used was the purpose for which it was used,—the tentative and preliminary work in an enterprise in which Beaunisne and he stood, neither in the relation of “vendor and vendee,” as the stipulation puts it, nor in the relation of those who have respectively contracted for the delivery and reception within a short or limited time, of stock in a corporation definitely provided for.

The court below, however, although holding that the “real contract” might be proved, seems not to have taken this view that it was proved to be what we have described. It seems rather to have held that the evidence taken together still showed the contract to be one for the delivery, irrespective of adverse contingencies, of stock in a described corporation within a reasonable time.

If we should decide this appeal on this same assumption concerning the contract, we nevertheless could not reach the further conclusion of the Circuit Court that the tender of the stock on October 26, 1906, was not, under all the circumstances of the case, within a reasonable time.

Extrinsic evidence was competent, we hold (agreeing with the court below in this) to show what the real contract was. It was as competent and material on the question of within what time the stock must be delivered as on any other of the terms of the contract.

The court, we think, should have held, not refused, the propositions of law tendered, which said in effect that all the circumstances connected with the development of the railroad enterprise shown by the stipulation and evidence should be taken into consideration in determining whether the stock was tendered within a reasonable time. The length of time in which the mere technical organization of a corporation could be completed has very little to do with the question. In a speculative, uncertain adventure of this kind, to be financed as this was and as the appellee knew or should reasonably have known it must be, it was of the last importance that nothing premature in the more formal and technical part of the scheme should interfere with the flotation of the bonds on which its possible success was to rest. It was for this reason apparently that the filing of corporate organization papers was de- ■ layed. The delay was of no prejudice to the appellee. The cause of his loss was not the delay in organizing the corporation, but the disappointing failure of the London financial agent of the “syndicate” or “Committee of Organization” to secure the underwriting of the bonds, the negotiation of which was necessary to the success of the enterprise. Had the corporation been organized three years earlier, the material result to the appellee would have been the same. That during three years efforts were made to place the bonds, is a part of the stipulation. That the “Committee” of which Beaunisne was treasurer acted in good faith and with reasonable effort in the matter, we think is a fair inference from all the facts shown. Their own money to a greater extent than that of their fellow-adventurer Scholz was involved.

It is unnecessary for us formally to decide whether the second “demand” of Scholz on Beaunisne was a waiver of the first, because we do not hold that the first demand was one with which Beaunisne was under obligation to comply, but we may say that it would seem very hard to escape from the conclusion that the second demand framed apparently on a different theory of Scholz’ rights than the first, waived and superseded it, and that if, under the construction of the “contract” adopted by the court below, it was necessary within “a reasonable time” to make a tender of stock, “a reasonable time” would have to be calculated from that second demand. Notwithstanding the use of the term “forthwith” in it, we think that three months from the expressed ultimatum was “a reasonable time” under the circumstances.

Our view of the law as applied to the facts of this case requires us to reverse the judgment of the Circuit Court, and to give the judgment here which we think the Circuit Court should have given,—that the plaintiff should take nothing by his action and the defendant recover her costs.

Reversed and judgment here.


author: Mb. Justice Brown

text:
    Ellen Reagan, Appellant, v. Elizabeth Hooley (now Elizabeth Morris) et al., Appellees.
    Gen. No. 17,757.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Mobtgages, § 29

      —form of Mil to declare deed a mortgage. Bill to declare an absolute conveyance a mortgage, held to be inaptly in the form of a bill for foreclosure.
    2. Mobtgages, § 32*—sufficiency of proof to declare deed a mortgage. Before a deed absolute in form can be declared to be a mortgage, the proof showing that fact must be clear, satisfactory and convincing.
    3. Mobtgages, § 32*—sufficiency of evidence. On bill to declare a deed absolute in form a mortgage, testimony concerning declarations of defendant subsequent to the conveyance should be treated with great caution.
    4. Mobtgages, § 34*—when findings in decree improper. Where an order of court dismisses a bill to declare an absolute deed a mortgage, a further order in the absence of cross-bill finding defendant the absolute owner of the premises is improper.
    5. Equity, § 358*—proper orders when hill dismissed for want of equity. When no cross-bill filed, an order dismissing a bill for want of equity leaves the court without jurisdiction to make any order on the subject-matter outside of the ordinary orders concerning costs.

      Appeal from the Circuit Court of Cook county; the Hon. Chables M. Walkeb, Judge, presiding. Heard in this court at the March term, 1911.
    Modified and affirmed.
    Opinion filed October 13, 1913.
    Statement of the Case.
    Bill by Ellen Reagan against Elizabeth Hooley (now Elizabeth Morris) and others to declare a deed absolute in form a mortgage. From a decree dismissing the bill for want of equity, complainant appeals.
    John M. Duppy, for appellant.
    Rogers & Mahoney, for appellees.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mb. Justice Brown

delivered the opinion of the court.


author: Mr.. Justice Brown

text:
    William E. Clow et al., Appellants, v. Western Life Indemnity Company, Appellee.
    Gen. No. 17,821.
    1. Insurance, § 808

      —when member unlawfully suspended deemed to have abandoned the policy. A member wrongfully suspended, who, after a compromise agreement for a settlement of the dispute has been reached, abandons the negotiations with the company, held to hare abandoned his policy and acquiesced in its cancellation.
    2. Insurance, § 808*—when member unlawfully suspended does not lose rights for failure to pay dues. A member unlawfully suspended is excused from making a tender of subsequent dues so long as the insurer refuses to reinstate him and insists that his rights have been forfeited.
    3. Insurance, § 887*—when correspondence after death of member, inadmissible. Correspondence between solicitors for beneficiaries and the company after the death of the member, held not admissible to rebut defense that member was suspended.
    Appeal from the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed October 13, 1913.
    Paul Brown, for appellant.
    Thomas J. Graydon and Ashcraft & Ashcraft, for appellee; Edwin M. Ashcraft, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr.. Justice Brown

delivered the opinion of the court.

This is an appeal from a judgment of nil capiat and for costs against the plaintiffs. The judgment was rendered on a verdict in favor of the defendant directed by the court. The plaintiffs were the children (together with the executrix of a deceased child) of James B. Clow. They were the beneficiaries, if the policy was in force, in a policy of the defendant, the Western Life Indemnity Company, a mutual insurance company organized under the Act of June 18, 1883, and reincorporated under the Act of June 22, 1893.

The pleadings and the documentary and other evidence offered are somewhat voluminous, but the facts and the questions involved in the case are simple, rendered especially so by the concession made by the appellee as to a proposition which it would otherwise be of primary importance to consider.

The policy in question was issued to James B. Clow on May 27, 1884. The Company was then named Knights Templars & Masons Life Indemnity Company. It afterwards changed its name to Western.Life Indemnity Company. Under both the Act of 1883 and that of 1893 and by the provisions of the policy the funds for the payments to the beneficiaries of deceased members were to be secured from assessments made upon the surviving members. Among the stipulations of the policy as issued was one providing for the notice to be sent to the surviving members of an assessment, and providing further as follows: “Should any one fail to forward as indicated in the notice the amount thus due, for a period of ten days after the date of said notice, he shall forfeit his membership and all benefits arising therefrom. Any one having thus forfeited his membership may be reinstated, he being alive, within thirty days after the date of said notice, by payment of all arrearages, and may be reinstated to membership subsequent to the thirty days upon such terms as the Board of Directors may fix.”

Another provision of the policy was: “There shall be an annual due of one dollar per one thousand dollars on the face of the policy payable on or within ten days after each anniversary of the policy, and a failure to pay said due shall work a forfeiture of the policy the same as an unpaid assessment.”

April 1,1899, the Company mailed to James B. Clow, to his proper last recorded post office address, as provided by the conditions of the policy, a notice of assessment. Clow failed to pay it within the ten days and he was noted upon the books of the Company as suspended for nonpayment of the assessment. He failed to apply for reinstatement within thirty days, but after the expiration of thirty days he did apply to the directors of the Association, and tendered the amount of the assessment and demanded to be reinstated, asserting that he had not received notice of the assessment. The directors refused to reinstate him, on the ground that a change in the by-laws made in 1896 (by which Clow was bound), took away from them the power to do so after the thirty day period had elapsed, and that the prescribed notice having been given in the prescribed manner, it was immaterial, if true, that he had not received the same.

The by-laws of the Association provided for the issuance to the members of bonds drawing three per cent, interest if any surplus should arise out of the contributions made by the members for the general expenses of the Association, and a bond was issued to James B. Clow for $68.63 on May 24, 1894, which he held when he was noted as suspended in March, 1899. This bond contained this provision: “This bond with accrued interest may be used at par by the said member at any time during his life in payment of assessments or dues on said policy, * * * but in order to use this bond in payment of assessments or dues on said policy the bond must first be surrendered to and in the possession of said company for cancellation before the same or any part thereof can be so applied in payment of said assessments or dues.”

This bond was not mentioned by either party when Clow sought to be reinstated, but in the case of Vail v. Knights Templars Indemnity Company, brought in the Superior Court of Cook county at some time after these transactions, this identical form of bond, in connection with the constitution and by-laws of the Association and a policy similar to the one here in question, was under discussion and the Superior Court, affirmed afterward by the Appellate Court and the Supreme Court, held that the Company was bound, before it could legally suspend for nonpayment of assessments a member who held one of these bonds, to apply the amount of the bond on the assessments, whether requested to do so or not and without the surrender of the bond, and that until the amount of the bond was thus exhausted an attempted suspension was invalid.

The opinion of the Supreme Court affirming this proposition is to be found in 206 Ill. 404, and was filed December 16, 1903. The decision of the Appellate Court was December 30, 1902 (105 Ill. App. 331).

While the appeal to the Appellate Court was pending in April, 1902, William II. Cray, the manager of the Company, and Clow, who were friends, found themselves fishing together at Palm Beach, Florida. At that time Mr. Clow was still maintaining that because he had not received the mailed notice of the assessment on March 1, 1899, the Company should have accepted the assessment and reinstated him in April, 1899, and the Company was insisting that the suspension was valid. No question of the application of the bond had been mooted between them. One day at Palm Beach, however, Mr. Clow brought up with Mr. Cray the differences between himself and the Company, said he would like to get the matter straightened up and asked why it could not be arranged.

Cray expressed himself desirous of settling the matter. He testifies in this case that Clow and he came to an agreement. Clow on his part promised to pay up the amount he would have been obliged to pay had he stayed in the Company, and Cray, for the Company, after explaining that a change in the law of Hlinois in 1893 had altered the form and character of the policies issued by the Company, promised to issue to Clow, on the payment of said amount by Clow and the surrender of the old policy and bond, a new policy for a specific or guaranteed sum of five thousand dollars. The difference between the two forms of the policy mentioned, that prior to 1893 and that subsequent, was that the former guarantied no specific sum to be paid, but made the sum dependent on the amount collected on the assessment of members, limiting it, however, to a maximum amount.

This was the effect of the policy held by Clow which is here sued on. The face of the policy promises to pay “Five Thousand Dollars and all the money paid on the policy in assessment, subject to the limitation as to the amount of such payment as is provided in Section One (1) of Article Seven (7) of the Constitution on the back of this policy of membership.”

The section in question reads: “Upon due notice the Board of Directors shall pay the amount set forth in the deceased member’s policy of membership. Provided that a policy of membership for Five Thousand Dollars shall be good for all the money in the death fund arising from one assessment provided it shall not exceed Five Thousand Dollars and all the money paid on the policy in assessments: * * .

By the Act of 1893, under which the defendant Company had reincorporated, it was provided that every policy thereafter issued by any company doing business under the Act should specify the sum of money which it promised to pay on death and be obligated to pay said amount.

As an argument is based thereupon by the appellant, it should be noted that the Act of 1893 provides that, except in case of a transfer of risks or policy holders from some other corporation: “No corporation doing business of life insurance under this Act shall issue a certificate or policy upon the life of any person more than sixty-five years of age.”

Shortly after the return from Florida of both Mr. Clow and Mr. Gray another conversation occurred between them in which the agreement was confirmed by both parties and Mr. Gray told Mr. Clow that the matter should be closed up “as soon as possible * * * so that there would be no possible chance of any legal complications thereafter.”

There was also the following correspondence between them, given in full so far as it can be in any sense material:

“Chicago, April 11, 1902.
W. H. Gray,
General Manager * * *
You will probably recall the conversation # * *
at Palm Beach * * * if you are in the same mind
as you were then you may send me an account of the past dues on my policies, on receipt of which I will take down the old policy and exchange it for the new as I proposed. * * * James B. Clow.”
“April 11, 1902.
Mr. J. B. Clow,
* * * In accordance with my conversation and understanding with you while in Florida, I desire to state that the amount of premiums accrued and due since the forfeiture of your policy is $729, for which sum please send your check together with the old policy and bond and we will issue to you a new guaranteed policy for $5000 in accordance with our agreement while at Palm Beach. Please give this matter your early attention. I will be obliged if you will bring those papers to the office yourself, in order that the whole matter may be closed up without delay. * * * W. H. Gray, General Manager.”
“April 17,1902.
Mr. W. H. Gray, Gen’l Mgr.
* * *
I see that the back premiums on my former policies amount to $729. This is much higher than I expected and I beg to ask you to furnish me the notices from the time you notified me that my policy was cancelled until the present time, on receipt of which I shall call and see you and endeavor to have the business straightened up to the satisfaction of both parties.
* * *
James B. Clow.” “April 18, 1902.
Mr. J. B. Clow,
* * *
Yours of the 17 received and noted. Enclosed I send you corrected bill made directly from the books of this Company, together with a blank postal card of each assessment that has not been paid by you. You will find that these figures are a little different from the ones I made before in the fact that there was one assessment omitted that should have been added; the annual due was also omitted. The total of the amount of dues in this company unpaid by you is $741.75. I wrote you my last letter in exact accord with what I understand our agreement was in Florida and is correct except as to the figures. You agreed to immediately return the old policy to the Company, together with the papers that go with it, accepting in lieu thereof a new guaranteed policy for $5000. In this matter of compromise I would have no right and would not waive the time of payment to be made to the Company. The understanding was that this policy should be paid promptly upon the ascertaining of the amount due, and for that reason. I send you these figures and trust that you will give the matter your prompt attention.
The cards enclosed include the assessment cards from March 1, 1899, to April 1, 1902. If this proposition is not accepted in accordance with the time and spirit of the agreement made in Florida and the letters written from here, then all the Company’s rights are hereby preserved. * * *
W. H. Gray, General Manager.”

Enclosed with this letter were an original notice of each assessment that had been made by the Company from March 1,1899, to April 1,1902, inclusive, and also the annual dues notices.

No communication either oral or written was ever received from Mr. Clow in answer to this letter and inclosures, nor to one of May 3, 1902, which Mr. Cray wrote to him. This last was as follows:

“May 3, 1902.
Mr. James B. Clow,
# # #
You have not called to see us as you agreed to do in your letter of April 17, 1902, although we immediately complied with your request in sending you the notices, for which papers we have receipts. It is important that this matter should have your immediate attention.
* * *
W. H. Cray, Ceneral Mgr.”

It was stipulated in the case that except as these notices of monthly assessments from March, 1899, to April, 1902, were sent to Mr. Clow in the letter of April 18, 1902, none were sent him at any time after the one of March 1,1899, although assessments were from that time up to January, 1908, the date of Mr. Clow’s death, made monthly upon the regular members of the Association.

After Mr. Clow’s death there was correspondence between solicitors for the plaintiffs in this case and the Company, in which the former took the position that the policy of May 27,1884, was in full force and effect, and the Company liable thereunder, and the latter that it was void and that there was no liability thereunder. In one of the letters of the Company (by Ceorge M. Moulton, President), taking this position, it is said: “* * * You are advised that Mr. Clow terminated his membership in this Company by his failure to pay assessment No. 178 due to be paid on said policy in March, 1899. * * # This statement of fact, however, shall not be construed as a waiver of any right of defense to which the Company may be legally entitled against any claim made under said policy. * * * ”

All this correspondence after the death of Mr. Clow was offered in evidence by the plaintiff in rebuttal and objected to. The objection was sustained and the corresponderi.ee excluded. This is one of the rulings complained of in this appeal. We consider it correct, however.

The concession made by the appellee that we have spoken of is that up to April 18, 1902, at least, Clow was a member of the defendant Association and that his policy was in force, subject, of course, to his obligation to pay the prior annual dues and the prior assessment which had been made, but of which he had up to that time received no notice. This concession was rendered necessary by the ruling of the Supreme Court in the “Vail” case, before mentioned. The Company had not applied to the dues and assessments the amount of the bonds that Clow held, but had noted him as delinquent and his policy as forfeited, when they were not so.. After that it had refused payment of the prior assessments and had given him no notice of those thereafter made. In consequence, up to the time he did receive notice of them, they had not become due from him. The refusal of the Company to reinstate him and its insistence that his rights had been forfeited also excused him, while it lasted, from the tender of his annual dues, although they were payable by the constitution without notice.

But the appellee says that after the agreement was reached at Palm Beach and especially after Clow on April 18,1902, had received, with an offer to carry out said agreement, specific notice of the amount of the prior unpaid assessments and dues, and took no mea^ sures and made no movement for the six years intervening before his death to pay those assessments or dues or even to negotiate in any manner further concerning the same, he must be presumed to have abandoned his policy and acquiesced in the cancellation of it which the Company had attempted to make.

We think this position is well taken and sustained both by reason and by the authority of many eases cited by appellee. Railway Passenger & Freight Conductors’ Ass’n v. Leonard, 82 Ill. App. 214; Pfingston v. Grand Lodge United Workmen, 41 Ind. App. 9; Lone v. Mutual Life Ins. Co. of New York, 33 Wash. 577; Mutual Life Ins. Co. v. Phinney, 178 U. S. 327; Mutual Life Ins. Co. v. Hill, 193 U. S. 551; Lavin v. Grand Lodge United Workmen, 112 Mo. App. 1.

Counsel for the appellants has ingeniously sought to distinguish these cases from the one at bar, but we think the principle is the same and that as the Court said in Pfingston v. Grand Lodge United Workmen, supra: 1 ‘ There is no equity in the claim.’’

It is objected that the policy of 1884 could not be abrogated by a verbal agreement. It could, in our opinion, however, be abandoned and forfeited by an absolute neglect for six years to take any means or make any tender or attempt any negotiation or proceedings to keep it alive after a compromise agreement for a settlement of a dispute about it had been reached. The unexplained and absolute abandonment of the negotiations, which had reached the point of consummation, was equivalent to an abandonment of the policy and consistent only with the hypothesis that Mr.- Clow had concluded that considering the arrears that he would have to pay, “the play was not worth the candle.” Nor is the argument forceful to us that the agreement reached involved “a new policy” under the Law of 1893, and as Mr. Clow was in 1902 over the age which was fixed in the law as a maximum for a new beneficiary, the agreement could only be considered a trick to “confidence” Mr. Clow out of his rights under the old policy.

Even if Mr. Clow had concluded' in April, 1902, that “a new” policy would be ultra vires and invalid, this would hardly excuse him from making a tender of the assessments and dues under the old policy when he had been given specific notice of their amount, or justify him in breaking oft without explanation all communication about the agreement reached. Thus acting under such circumstances would still indicate abandonment of the old policy.

But we do not think there is any merit in the contention that the “new” policy, issued, as could be abundantly proved, to an old member in compromise settlement of a dispute as to his former policy, and issued in the “new” form because of and in accordance with his expressed preference for that form, naming, as it did, a guarantied amount, could be held invalid, ultra vires, or for any reason unenforceable against the Company. ■

The contention that the offer in the correspondence in April, 1902, which Mr. Clow finally ignored, departed substantially from the agreement reached in Florida, seems, even if material, hardly borne out by the facts. It is true that Mr. Gray testified that at Palm Beach it was understood that in the payment of the sum in arrears Clow was to have credit for the amount of the bond for $68.63, with interest, and that in the letter of April 11th, Mr. Gray, apparently forgetful of that or careless in expression, wrote, after stating the arrears to be $729, “for which sum please send your check together with the old policy and bond.” But in answering that letter Mr. Clow makes no reference to this discrepancy, merely expressing surprise that the amount of the arrears was so great, and in the final and decisive letter of April 18th, which Clow failed to answer or take notice of, it is not stated or implied that the amount of the bond with interest would not be allowed in the settlement of the arrears. It is only said, “The total of the amount of dues in the Company unpaid by you is $741.75.” The bond could have been turned in as a part of this amount.

We think there was no question to be left to a jury. The plaintiff made a pruína facie case, but the defendant, on its plea, by uncontradicted evidence, presented facts which as a matter of law defeated the action. The motion at the close of all the evidence for a peremptory instruction was therefore properly allowed.

The judgment of the Municipal Court of Chicago is affirmed.

Affirmed.