text:
    Gipps Brewing Company, Appellee, v. Harry G. Wasson et al., Appellants.
    Gen. No. 6,017.
    1. Pleading, § 258

      —when proper to allow amendment. Where an injunction or a receiver is obtained upon a sworn bill, permission should not be given to make material change in its allegations without a showing of due reasons for making such change, but no such showing is necessary to authorize the amendment of the hill as a mere pleading.
    2. Pleading, § 258*—when proper to allow filing of amended MU. In a suit to foreclose a trust deed given to secure a note, the hill claimed that complainant owned the note and was sworn to and contained a prayer for a receiver, but no receiver was sought or obtained. Leave was granted to file an amended hill which was not under oath, and which differed mainly from the original hill in that it set out also the transactions by which complainant acquired the ownership. Held, that it was not error to permit the amended hill to be filed.
    3. Pleading, §^273*—when original replication stands as answer to amended Mil. An order permitting the replication to the original answer to be refiled as a replication to the answer to the amended bill is equivalent to an order that the original replication stand to the amended hill, and has this effect, even though the clerk does not place a new file mark on the replication.
    4. Pleading, § 24*—when filing of replication waived. The objection that the replication to the answer to the original hill had not been refiled as a replication to the answer to the amended hill, as had been allowed by the court, and that therefore the case should have been heard on the bill and answer only, is waived where proofs are introduced by botn sides after the order permitting the refiling.

      5. Judgment, § 362

      —when recitals in decree conchisive. Where the decree recites that the case was heard on the amended bill, the answer, the replication to such answer and the proofs, these recitals are conclusive that there was a replication to the answer to the amended bill.
    6. Principal and agent, § 232*—what evidence admissible to establish agency. In a suit to foreclose a trust deed given to secure a third person in a transaction in which it is claimed he acted as agent of complainant, where the existence of the agency is denied by defendant, evidence of conversations between the third person and officers of the complainant, held when defendant was not present, is competent to show the third person’s agency in the transaction, where the want of notice of such agency did not injuriously affect defendant’s rights.
    7. Principal and agent, § 180*—when third person’s rights not injuriously affected by want of notice of agency. In a suit to foreclose a trust deed given to secure a third person in a transaction in which it is claimed that he acted as agent for complainant, evidence examined and held to show that defendant’s rights were not injuriously affected by want of notice of the agency.
    8. Prinicipal and agent, § 8*—when evidence sufficient to show third person’s knowledge of agency. In a suit to foreclose a trust deed given to secure a note claimed to have been given to secure a third person in a transaction in which he acted- as agent of complainant, evidence examined and held to show that defendant had notice of the agency.
    9. Principal and agent, § 8*—when evidence sufficient to establish relation. In a suit to foreclose a trust deed given to secure a third person, evidence examined and held to show that such third person acted as agent for complainant in the transaction in which he received the deed.
    10. Bills and notes, § 307*—when right of payment and subrogation arise. In a suit to foreclose a trust deed, it appeared that the deed and a note were given by the grantor to secure one who signed another note for him; that the latter note becoming due and not being paid by the signer was paid by the complainant, a company of which the signer was an officer and director; that in the transaction as to the notes and deed, the signer acted as officer and agent of the complainant, in furtherance of its business, with the approval of its directors and with the understanding that the debt incurred by his signing the note was the debt of the complainant. Held, that complainant had a right to pay the note and by so doing was subrogated to the signer’s title to the collateral.

      11. Mobtgaqes, § 109

      —when junior mortgagee subrogated to rights of senior incumbrancer. A junior mortgagee who pays off a senior incumbrancer becomes subrogated to the rights of the senior incumbrancer, even though the making of such payment was not necessary to protect his rights.
    Niehaus, J., took no part in this decision.
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.
    Heard in this court at the October term, 1914. Rehearing denied April 15, 1915.
    Affirmed.
    Opinion filed January 6, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    I. R. Wasson, for appellant.
    George J. Jochem, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, samo topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dibell

delivered the opinion of the court.

The Gipps Brewing Company, hereinafter called the company, filed a bill in equity against Harry G. Was-son and others to foreclose two trust deeds upon the Hotel Wassonia property in the village of Borne in Peoria county, the first of which trust deeds was dated August 5, 1911, and secured a note of that date for the principal sum of $1,900, due in one year, with interest at seven per cent, per annum after maturity, and the other trust deed was dated November 13, 1912, and secured a note of that date for the principal sum of $641.05, due in six months, with interest at seven per cent, per annum from date, each of which notes was signed by Harry G. Wasson and payable to his order and by him indorsed in blank. Subsequent incumbrances and holders of supposed clouds on the title were also defendants, and the decree affected their rights, but that decree is not questioned on those subjects and those details need not be stated. Wasson answered the bill and a replication was filed to said answer. The cause was referred to the master to take and report the proofs and his conclusions, and he took the proofs at various dates. After the hearing of proofs had begun, the company filed an amended bill. After a demurrer thereto was overruled, Was-son answered. On motion of the complainant, leave was given that the replication to the original answer be refiled as a replication to the answer to the amended bill, but it seems that the clerk did not place a new file mark thereon. Further proofs were heard from time to time by the master, and a report was made in favor of complainant, objections thereto by Wasson were overruled and were ordered to stand as exceptions in the court, and were there overruled, and complainant had a decree of foreclosure of both trust deeds, from which Wasson appeals. It is conceded that the decree was correct in foreclosing the second trust deed. The contention relates to the first trust deed.

Appellant contends that the amended bill departed from the allegations of the original bill and that the court should not have permitted it to be filed without a showing why the facts stated in the amended bill were not set out in the original bill. We are. of opinion that his question was not raised at the proper time nor in the proper way in the court below. Where an injunction or a receiver is obtained upon a sworn bill, the court should not permit its allegations to be materially changed without a showing of due reasons for making such a change, but no such showing is necessary to authorize the amendment of the bill as a mere pleading. The original bill here was sworn to and there was a prayer for a receiver, but no receiver was sought or obtained. The amended bill was not under oath. The main difference between the two pleadings as to the note for $1,900 was that the original bill claimed that the company owned that note, while the amended bill set out also the transactions by which it acquired that ownership. We find no error in permitting the amended bill to be filed.

Appellant contends that as the replication was not refiled the case should have been heard upon bill and answer only, and the answer should have been taken as true, and no proofs should have been received. The order permitting the replication to be refiled to the answer to the amended bill was equivalent to an order that the original replication stand to the answer to the amended bill. Moreover, proofs were thereafter introduced, not only by the company but also by Wasson, and as the ease was not heard upon bill and answer, but upon the pleadings and the evidence, the filing of a replication would be held waived. Piot v. Davis, 241 Ill. 434. Moreover, the decree recites that the case was heard on the amended bill, the answer, the replication to such answer and the proofs. These recitals are conclusivé that there was a replication to the answer to the amended bill. Brown v. Miner, Frost & Hubbard, 128 Ill. 148; Meath v. Watson, 76 Ill. App. 516.

The main contention of appellant is that the company did not own this note for $1,900 and had no connection therewith, and that what it paid, it paid as a mere volunteer and interloper in business which did not concern it, and therefore it cannot enforce payment of it, reliance being had upon the principles laid down in Fuller v. John S. Davis’ Sons, 184 Ill. 505, where it was held that the doctrine of subrogation has no application where there is no relation of principal and security or guarantor or other relation which entitles one party to succeed to the rights of another; to which may be added, Home Savings Bank v. Bierstadt, 168 Ill. 618, where it was held that, if the depiand of a creditor is paid by the money of a third person, not himself a creditor, without any agreement that the security shall be kept alive for the benefit of such third party, the demand is absolutely extinguished. This position requires an examination of the evidence.

The proofs for' complainant tend to establish the following facts: The company makes beer in Peoria and sells it there and in that vicinity. Wasson owned the real estate in question and began building a hotel thereon, in which he intended also to operate a dram-shop. The officers of the company were Willis H. Ballance, Sr., hereinafter called Ballance; who was president until his death, his son, Willis H. Ballance, Jr., who became president at the death of Ballance, and Charles S. Cockle, who was treasurer and some of the time also secretary, and these three were the directors of the company, and when Ballance died his son and Cockle became the executors and trustees under the will of Ballance. In 1910, Wasson was needing aid to obtain money to complete his hotel and Ballance signed a note for $1,000 with'Wasson at the First National Bank of Chillicothe, Illinois, hereinafter called the bank, and Wasson thereafter bought a part of his beer from the company. That note became due and was unpaid. There was a mortgage, given by Wasson for another debt, resting upon the hotel property and other land. Wasson ascertained that he could secure a release of the hotel property from that mortgage if he paid $500 thereon. He represented to Ballance that if he could get a loan of $1,900 from the bank, he could pay off the $1,000 note, pay $500 on his other indebtedness and secure a release of the hotel property from that mortgage and, if Ballance would sign the note for $1,900 for him at the bank, he would give Ballance a note for $1,900 and secure it by a trust deed on the hotel property. Ballance reported this offer to the other directors of the company and advised them that, in his opinion, he could arrange for the exclusive sale of the company’s beer at the hotel, and that he thought it advisable to do this. The other directors at first opposed and afterwards consented. Ballance signed the note for $1,900 to the bank and thereby enabled Wasson to pay off the previous $1,000 note and $500 on his prior incumbrance, and that incumbrance was released as to the hotel .property, and Wasson executed to Ballance a note for $1,900 and secured it by the first of the trust deeds herein mentioned. It is the testimony of Ballance, Jr., and Cockle that this was done by Ballance, not in his own interest, but as the president of the company and for the purpose of increasing and holding its business, and that the directors of the company authorized Ballance to sign this note to the bank and always considered the indebtedness to the bank as the obligation of the company, and not of Ballance, individually, and that what Ballance did was as the president and agent of the company. Ballance died. The note at the bank came due. The company paid it, and the bank indorsed its note in blank to the Ballance estate and delivered it to Ballance, Jr. and Cockle, who were both the executors and trustees of the will of Ballance and also the remaining directors of the company. The trust deed and note of Wasson to Ballance for $1,900 had originally been placed in the hands of Bousseau to hold them as trustee for the parties, but afterwards they came into the possession of the company.

Wasson did not introduce any substantial proof to the contrary, but he contends that this proof of conversations between Ballance and the other directors, when Wasson was absent, was incompetent, and that, with that evidence disregarded, there is no proof in this record that Ballance was acting as the agent of the company in- what he did or that the company had any interest in his acts. It was held in Rice & Bullen Malting Go. v. International Bank, 185 111. 422, where a similar agency was proven by conversations in the absence of the opposite party, that the agency could be created verbally and that proof of those conversations was competent, and it was there said:

“It is not essential that an agency should be created in the presence of each party with whom the agent deals -on behalf of his principal, nor that the agency

should be made known to a party whose rights are not injuriously affected by the want of such notice.”

The rights of Wasson were not injuriously affected by the want of notice that Ballance was acting for the company. It is true that he testified that he told Ballance that he did not want the company to have anything to do with this transaction, and that Ballance told him that was not necessary. We are of opinion, however, that it is clear from the whole testimony of Wasson that he knew that Ballance was becoming his guarantor in order to induce Wasson to buy the company’s beer. Other beer companies had offered to assist him financially, if he would become the purchaser of their beer exclusively, and he gives no other reason why Ballance should have given him this important financial assistance. There is evidence that Wasson thereupon agreed verbally to buy all his beer of the company, which evidence he contradicted.

There are two reasons why the company had a right to pay the note to the bank and be subrogated to the title to the collateral security of this $1,900 note and the trust deed. We regard it as clearly established that Ballance did all this business as the president and agent of the brewing company and in furtherance of its business and with the approval of its directors, and that it was understood between Ballance and the directors that this $1,900 note which he signed at the bank with Wasson should be the indebtedness of the company. In equity, therefore, the company owned and could enforce these collateral securities. Further, the company had taken this second trust deed, securing $641.05, which was later in date than the $1,900 trust deed. It is conceded that this later note and trust deed was given to secure payment of a balance due to the company from Wasson for beer. In Illinois Nat. Bank v. Trustees of Schools, 211 Ill. 500, the following is quoted with approval from Jones on Mortgages :

“A mortgagee who has paid a prior mortgage or other encumbrance upon the land is entitled to be paid this amount, as well as his own mortgage, when the mortgagor comes to redeem. In addition to the rights the mortgagee had before, he is subrogated to those which were a charge upon the land in the hands of the prior encumbrancer whom he had paid, whether such incumbrance is a mortgage, a judgment or a rent charge.”

Appellant seems to construe the language which precedes the foregoing quotation as meaning that béfore a subsequent mortgagee, who has paid off a prior incumbrance, can be subrogated thereto, he must have been compelled to pay it for his own protection; and he argues that the proof here shows that this hotel property was worth very much more than these two incumbrances secured, and therefore the company was not compelled to pay this debt for $1,900, and therefore it cannot be subrogated. In such prior language, however, the court also said, on the same page, that the junior mortgagee had the right, not only under section 18 of chapter 77 of the Revised Statutes (J. & A. ¶ 6764), but also under the general principles of equity, to pay off the senior mortgage and become subrogated to the rights of the senior mortgagee. Moreover, this court held in Lidster v. Poole, 122 Ill. App. 227, by Farmer, J., that in such cases the payments by the junior mortgagee cannot be said to be optional. We are of opinion that for both the reasons above stated, the company' properly acquired the right to enforce the trust deed securing this note for $1,900. The decree is therefore affirmed.

Affirmed.

Mr. Justice Niehaus took no part in this decision.


source: Caselaw Access Project

author: Mr. Presiding Justice Carnes

license: Public Domain

text:
    Arthur Keithley, Appellant, v. City of Peoria, Appellee.
    Gen. No. 5,933.
    (Not to be reported in full.)
    Appeal from the County Court of Peoria county; the Hon. Clyde E. Stoke, Judge, presiding.
    Heard in this court at the October term, 1914.,
    Affirmed.
    Opinion filed March 9, 1915.
    Statement of the Case.
    Action by Arthur Keithley, plaintiff, against City of Peoria, defendant, to recover for damages claimed to have been done to residence property by lowering the grade of the street in front of it. The action was commenced in a justice’s court, from which it was taken to the County Court in which there was a verdict and judgment for defendant. Prom this judgment, plaintiff appeals.
    The facts disclosed by the evidence show that in the spring of 1903 the then owner of the property laid a six-foot cement sidewalk in front' of it. The sidewalk was laid with permission from the city authorities at a grade designated by them for that walk, and corresponding with the grade of the continuation of this walk at each end. The owner of the lot graded it, made a driveway at one side and laid a cement walk from the house to the sidewalk, all in conformity with the grade of the sidewalk. Afterwards, in the same year, plaintiff purchased the property and has ever since been in possession of it by his tenant.
    In 1910 the city passed an ordinance for the paving of the street with brick, and cement curb. The ordinance in specifying the grade referred to the grade of the street “as heretofore established;” but the evidence showed that the city had not theretofore established a grade for that street at that place, and that all it had done in that direction was to dictate the grade at which the sidewalk should he laid, and maintain the street in front of it at perhaps varying grades, caused by working the dirt street. The paving was completed in the fall of 1911. Plaintiff’s main contention is that he was injured by lowering the street when the paving was laid in 1911. Evidence tends to support his claim, that when the sidewalk was laid in 1903, it was on a level with or lower than the street in front of it; that there was a sewer laid in the street in 1908 or 1909, and at that time the grade of the street was substantially lowered; that when this pavement was put in, there was another lowering of the street so that it became impossible to drive heavy loads from the street onto his premises, and practically destroying his means of egress and ingress so that he would be compelled at considerable expense to rearrange and regrade his lot. There is a conflict of testimony as to the grade of the street at the time the sidewalk was built, and from that time to the time when the pavement was laid. It appears without contradiction that before the pavement was laid there was a gutter of brick, or brick and stone, along the side of the street next to plaintiff’s premises, and that the water had washed it out in front of his driveway so that a wooden bridg’e was required, and kept there, to enable teams to drive from the street onto the driveway. This was the condition at all times after the sewer was put in, and for some time before, but for how long, there is some conflict in the evidence. There is evidence that plaintiff has much better and easier access to his property from the street now than at any previous time within the five-year limitation; and it is shown he could not, either after the pavement was put in or for several years before that time, drive from the street onto his premises without making use of a bridge projecting from his street line into the street; and the evidence shows that the present cement gutter is not so low by six inches as was the old brick gutter that was maintained there before the pavement was laid. Plaintiff contends that defendant should be held to have established a grade to the street before the time of the paving ordinance, because it recites in that ordinance that there was an established grade, and because it did establish the grade of the sidewalk built in 1903, and in the absence of other evidence, that should be held to control the grade of the street. There is some evidence that as a rule there was a certain distance maintained between the grade of the street and the sidewalk as a matter of practice; but the evidence shows that in defendant city there was no fixed and uniform rule as to those respective grades.
    At the request of plaintiff, the jury were instructed that if defendant gave a grade in front of the property and a sidewalk was built according to that grade, and at any time within five years prior to the commencement of the suit, defendant changed such grade in a way to injure plaintiff’s property, then defendant was liable; that the right of ingress and egress is protected by the constitution, and if defendant in making the improvement damaged plaintiff’s right to pass to and from his property, then it was liable; that if they believed defendant changed the grade of the street in front of plaintiff’s property, and by so doing damaged his property, then the defendant was liable, and that it is no defense that defendant in so doing was operating under a valid ordinance; that it was the duty of defendant to keep the street in front of plaintiff’s property in a reasonably safe condition, and if the grade of the street has been changed so as to injure plaintiff’s property, then defendant was liable, regardless of whether plaintiff was required to bridge the gullies in the street before it was paved in order to get to and from his property. And the court refused to instruct for plaintiff, that if defendant had changed the grade and damage has resulted to plaintiff’s property, that it was liable even if the roadway of the street was lower before it was paved than it was after. The refusal of this instruction is complained of. The jury were instructed, however, that any change in the grade of the street that damaged plaintiff’s property was actionable.
    Abstract of the Decision.
    1. Municipal cobpoeations, § 892

      —when recital in ordinance insufficient to show establishment of street grade. The recital in an ordinance that the grade of a street has been previously established will not prevail over evidence which shows that no grade had been established.

      The court instructed the jury, at the instance of plaintiff, that if the street was lower than the sidewalk before it was graded, there was no obligation on defendant to raise it to the level of the sidewalk. That defendant was not bound to grade its streets to afford access with teams into adjoining property where such access could not be had before the streets were graded, and that if the street in question before it was graded was in such condition that plaintiff could not drive into his property without the use of a bridge extending into the street, that it had the right to remove the bridge and was under no obligation to place the street in condition so that plaintiff could drive onto his property without a bridge; and that the plaintiff had no right to maintain the bridge leading from the sidewalk line into the street and could not base any claim for damages on the action of defendant in removing it.
    The evidence was conflicting on the question whether the market value of the premises was lessened by the improvement of the street.
    Giles E. Keithley, for appellant.
    R. H. Radley, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

2. Municipal corporations, § 892 —when burden on plaintiff to show grade which had been changed. In an action against a city to recover damages alleged to have been caused by a change of an established grade, -it is a part of plaintiff’s case to show what the grade was.

3. Appeal and error, § 1561*—when refusal of instruction covered by other instruction harmless. The refusal to give an instruction which is covered in substance by other instructions given is harmless error.

4. Municipal corporations, § 892*—when instruction as to damage by change of grade incorrect. An instruction that any change of the street grade that damaged plaintiff’s property was actionable is incorrect as an abstract proposition.

5. Appeal and error, § 1526*—\ohen action of court in regard to instructions harmless error. Action of court in regard to giving and refusing instructions asked, held to be harmless error in view of the evidence.

6. Municipal corporations, § 892*-—when damage not caused by change of street grade. In an action against a city to recover damages alleged to have been caused by a change of street grade, evidence examined and held to support a finding that there was no special damage to plaintiff’s property occasioned by any act of defendant within the five-year period of limitations.


text:
    R. P. Burns, Appellant, v. J. H. Turner, Appellee.
    Gen. No. 5,941.
    1. Exemptions, § 27

      —when failure to claim exemption waiver of right. A debtor must claim his exemption in property not specifically exempt from levy and sale on execution, since the right is a personal privilege to be taken advantage of only by the execution debtor.
    2. Exemptions, § 28*—sufficiency of claim of exemption. A claim of the exemption of property from levy and sale on execution must be clear and unequivocal so that the levying officer may understand it.
    3. Exemptions, § 3*—when exemption laws liberally construed. Statutes exempting property from levy and sale on execution for debt are to be liberally construed so as to protect debtors.
    4. Exemptions, § 24*—when omission of property from schedule > waiver of exemption. The protection of the statute exempting property from levy and sale on execution is withdrawn as to all property omitted from the schedule of exemptions, independently of any question of fraud, inadvertence or mistake, except that of the levying officer or some third person interested in the collection of the execution.
    5. Exemptions, § 28*—when “miscellaneous articles” of designated value insufficient description of exempt property.. An item in a schedule given a levying officer under section 2 of the Exemption Act (J. & A. 1i 5584), of “miscellaneous articles $25.00,” is not a sufficient designation of exempt property.
    Appeal from the Circuit Court of Peoria county; the Hon. Theodore'N. Green, Judge, presiding..
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 9, 1915.
    Wolfenbarger & May, for appellant.
    Kirk & Shurtleff, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

On February 20, 1913, an execution issued out of a justice of the peace court on a judgment of $196.20 against R. P. Burns, the appellant, and was placed in the hands of J. H. Turner, the appellee, a constable, for service, and was by him served upon Burns. On March 1, 1913, Burns filed with the justice of the peace, in attempted compliance with section 2 of our Exemption Act (J. & A. If 5584), a schedule of his personal property in which he named, item by item, nineteen articles of household property, and set against item twenty, “miscellaneous articles $25.00.” He carried out his own estimate of value‘against each of the other items and scheduled cash on hand $4, making a total valuation, according to his estimate of values, of $159.75. On March 8, 1913, after the ten days limited by the statute for filing schedule had expired, appellee levied upon and afterwards sold property of appellant not specifically named in the schedule, consisting of eight items as follows: One porch swing, one ice box, one wringer, one roll top desk, one sewing machine, one washing machine, one office chair, and one organ. This property brought at the execution sale $16.10, and appellant claims, and testified, that it was worth at a fair voluntary sale $43.50. This suit was brought under section 5 of the Exemption Act (J. & A. 5587) making an officer taking or seizing articles of exempt property liable for double the value of the property so illegally taken or seized. A jury trial resulted in a verdict and judgment for the defendant, from which judgment this appeal is prosecuted.

The statute provides that if a debtor desires to avail himself of the benefit of the act, that he must file a schedule of his property within "ten days from the service of the execution, and deliver the same to the officer having the execution, or file the same with the justice where the writ is issued, and that “any property owned by the debtor and not included in said schedule shall not be exempt.” There are various other provisions of the statute not necessary to mention as they were all complied with. The main question presented here is, whether the designation “miscellaneous articles” in the schedule was a compliance with the statute that entitled appellant to claim the above-mentioned eight items of property as exempt. Appellee proceeded on the theory that it was not a compliance with the law protecting exempt property, and that the items not being specifically named in the schedule, he had the same right and duty to levy upon and sell them as if the item “miscellaneous articles” had been omitted from the schedule. Appellant’s contention is that it was a sufficient designation of the property and that appellee’s liability is the same as if the eight items had been specifically set out in the schedule. It also appeared that on the day of the levy appellee was notified by appellant in writing that these eight items of property were included in the item “miscellaneous articles” and that he claimed these items as exempt, and appellant bases some claim on this notice, which was given as we have before said, some time after the ten-day period for filing the schedule had expired. Appellant also claims that the constable accepted the schedule without exception, that is that he did not notify the debtor that the item “miscellaneous articles” was an insufficient description of property claimed as exempt, and for that reason he should be estopped in this suit from claiming that the description was not sufficiently definite. The argument proceeds on the theory that the schedule was given to appellee, as it might have been under the statute, but the record seems to show that it was filed with the justice, as was also proper under the statute.

It is a general rule, applying to exemption of personal property from levy and sale under execution, that if the property is not specifically exempt, • the debtor must claim the exemption; that it is a personal privilege to be taken advantage of only by the execution debtor, and that the claim should be clear and unequivocal that the officer may understand it, and if the statute prescribes the manner of claiming the exemption its provisions must be followed. 18 Cyc. 1468 et seq. If the statute requires a schedule it must be made in substantial compliance with the statutory requirements, but not necessarily a literal compliance. Statutes creating exemptions of property from levy and sale for debt are to be liberally construed to carry out the purpose of the legislature in enacting them, to protect debtors.

This court said in Johnson v. Larcade, 110 Ill. App. 611: “Before a debtor can avail himself of the benefits of the statute (exemptions) he must comply with all the requirements it makes of him. ’ ’ This no doubt is a correct statement supported by authorities there cited. We are also of the opinion that the question of good faith and honest effort on the part of the debtor to comply with the statute is not of such importance as appellant assumes. It is true the debtor may lose his right of exemption by his own fraud, but it does not follow that if he neglects to schedule because he mistakes the law or forgets the time within which the schedule is required to be filed, or' otherwise through accident or mistake fails to substantially comply with the law, that he will be protected. The case of Blair v. Parker, 4 Ill. App 409, and Biggs v. McKenzie, 16 Ill. App. 286, are each authority for the proposition that the protection given by the statute, upon compliance with its conditions, is withdrawn from all property not scheduled, and this independently of any questions of fraud, inadvertence or mistake. And we think this a correct statement of law with the qualification that fraudulent acts of the officer taking the schedule, or perhaps of some other party interested in the collection of the execution, may have a bearing in determining questions arising in such cases. Courts have sometimes held an officer estopped by his own act from questioning the regularity of a schedule. The rule is good as to inadvertence and mistake, and we do not see that any consideration of fraud, misconduct or neglect of appellee enters into this case. He neither drafted nor advised about the drafting of the schedule; it was not delivered to him; it is to be inferred that he did not see it until after the time for filing elapsed; appellant testified that he made it on the last day permitted by the statute; it was prepared by a lawyer and filed with the justice of the peace. Under these'circumstances,-whatever might be the rule, had the justice or constable undertaken to advise appellant in the matter, there is no ground for saying that they, or either of them, omitted any duty they owed appellant in not advising him that the designation “miscellaneous articles” was not a sufficient description. Appellant seems to be a business man, an insurance agent, he was acting under the advice of counsel, and we do not see that either the justice or constable was under any duty, legal or moral, to advise him of their opinion in the matter.

Eemembering the general rules above stated, it is easy to determine that an attempt to schedule valuable, distinct items of personal property by some general designation like “all other personal property,” or “sundries,” or “livestock” would be ineffectual. On the other hand, a rule that no personal property should be protected by the schedule if not specifically named might be too broad. It is said in McClellan v. Powell, 109 Ill. App. 222, quoting from Moffett v. Sheehey, 52 Til. App. 376, that the debtor should list “separately each article of a distinct kind or distinct quality, grade or description, of the same kind, to enable the appraisers to more readily affix the value of each article contained in it.” In Driggs v. Roth, 97 Ill. App. 39, the item in a debtor’s schedule “forty or fifty dollars worth of meat” was held an insufficient description. This court held in Keenan v. Drew, 144 Ill. App. 388. that the description “thirty acres of growing corn upon which there is a mortgage” was sufficient to entitle the debtor to his exemption, after the verdict of a jury that the field of corn scheduled was the field levied on and sold by the officer.

It would be of little profit to note and discuss- cases of other jurisdictions holding certain words or phrases in a debtor’s schedule a sufficient or insufficient description. The purpose of describing the property is to enable the officer to find it and have it appraised. The purpose of describing personal property in a chattel mortgage is that parties interested may know what it is, and the courts have often been called upon to pass on the sufficiency of the description in such instruments. 6 Cyc. 1022 et seq. The conclusion to be drawn from the authorities is that there can be no fixed rule as to what words would in all cases be sufficient. It is often said that it is important to give the location of the property, though not always absolutely necessary. If the article in question is rare it can be more readily found by a general description, therefore a general description might be good as to such an article and bad as to one that is common, and there are various other considerations entering into the problem whether the description of personal property is sufficient in the various cases in which the question arises.

There is no claim here that the property is identified or described in any way, beyond what may be inferred from the term “miscellaneous articles,” and the fact that appellant owned them arid valued them at $25. There might be two or a hundred of the articles. No clue is given to their character or where they are located. We are of the opinion that the description must be held insufficient, and not a substantial compliance with the statute. The debtor’s right of exemption rests entirely on the statute, and failing to "bring himself substantially within its provisions the right is lost.

We are of the opinion that appellant acquired no right by his written notice to appellee, at the time of the levy, that the articles in question were covered by the description “miscellaneous articles.” The question of a debtor’s right to amend his schedule is not involved. Appellant did not amend his schedule or ask to amend it. The writing in question was simply an assertion of his contention here that the description was sufficient to cover the articles about to be levied upon. Under former statutes there was no time fixed within which the debtor should file his- schedule. Under the present statute it is quite clear that a debtor could not be permitted to file a schedule describing his property in general terms that would not enable the constable to find it, and then after the ten days elapsed file an amended' schedule properly describing the items of property. Much less could he be permitted to remedy a defective schedule by a written statement to the effect that he regarded it sufficient.

Complaint is made of the action of the court in giving and refusing instructions. If there was any controverted fact for the jury to pass upon, it is sufficient to say that the instructions were more favorable to appellant than they should have been under the views above expressed. The judgment is affirmed.

Affirmed.


text:
    Joseph McFadden, Appellant, v. Adam Deck et al., Appellees.
    Gen. No. 6,010.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Putnam county; the Hon. John M. Niehaus, Judge, presiding.
    Heard in this court at the Octoher term, 1914.
    Reversed and remanded.
    Opinion filed March 9, 1915.

      Abstract of the Decision.
    1. Bills and notes, § 336

      —when copy of note filed is not part of declaration. A copy of a promissory note filed -with, a declaration is no part of the pleading.
    2. Bills and notes, § 336*—when demurrer to declaration does not- reach copy of note filed. Since a copy of a promissory note filed with a declaration is no part of 'the pleading, it cannot be noticed on demurrer.
    3. Appeal and ebbor, § 420*—when judgment reversed on point not raised in trial court. A judgment rendered on a copy of a promissory note filed with a declaration on demurrer to such pleading, will be reversed on appeal, since the copy of the note was no part of the declaration, notwithstanding the question was not raised in the trial court.
    Statement of the Case.
    Joseph McFadden sued Adam Deck, John Dore and James McCutcheon in assumpsit, filing a declaration consisting of the common counts and two special counts based on two promissory notes given by the defendants to the Marsh Company, and assigned to the plaintiff: Copies of the notes, which were in common form except that at the left of the defendants’ signatures appeared the words “Commissioners of Hennepin Drainage District,” were filed with the declaration. General and special demurrers were entered to the special counts, on the ground that it did not appear whether the Marsh Company was an individual, copartnership or corporation. The general demurrer was sustained; plaintiff dismissed the common counts from his declaration, and elected to abide by the special counts, whereupon judgment was entered against him, from which he appeals.
    William C. Mooney and C. N. Hollerich, for appellant.
    James E. Taylor and Prettymann, Velde & Prettymann, for appellees.

      See Illinois Notes Digest, Vols. XI to- XT, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.


text:
    John Funk, Defendant in Error, v. Chase Fowler, Plaintiff in Error.
    Gen. No. 6,016.
    (Not to he reported in full.)
    Error to the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed March 9, 1915.
    Statement of the Case.
    Chase Fowler, the plaintiff in error, is a practicing lawyer, and for some time prior to July 12, 1906, had professional and business déalings with John Funk, the defendant in error, and in 1904 gave him an agreement for the conveyance of certain lands on conditions therein named, which was intended as security for moneys loaned and indemnity against loss on liabilities assumed by Funk as surety on notes of Fowler’s. In 1905 Fowler gave Funk another similar writing-covering other lands. There was a mortgage lien on some of these lands, and in June, 1906, there were judgments against Fowler and it was necessary to raise $5,000 or $6,000 to satisfy such indebtedness; and July 12, 1906, Fowler gave Funk a quitclaim deed of the land for an expressed consideration of $12,000 (which is not claimed to be the true consideration), and Funk by mortgaging- the land secured a loan of $5,000, and with the money so obtained, and an additional sum furnished by himself, satisfied those debts. After which this statement was made: “July 31,1906. This is to certify that John Funk and Chase Fowler ' have this day settled all past demands and claims to date, and C. Fowler is to furnish the Kempton matter in which Mr. Funk is partner.
    Chase Fowler John Funk.”

      On November 22, 1906, they executed an article of agreement for a warranty deed of the land from Funk to Fowler, reciting that Funk held the land in trust for Fowler, and agreed to convey to him upon Fowler’s assuming the mortgage and paying Funk all sums of money that he had paid out for Fowler and had become obligated to pay for him, with interest at five per cent.; and providing that Fowler should have the use of the land in consideration of paying all taxes thereon, the interest on the mortgage debt, the interest to Funk on all sums that he has been compelled to advance for Fowler, and the interest on all obligations which Funk has become-surety for or might thereafter become surety for or obligated to pay for Fowler.
    Fowler kept possession of the land, excepting a small part thereof that was conveyed by Funk, until February, 1911, but defaulted on some of his obligations imposed by the contract, and Funk conveyed the land to his son-in-law, who got possession of it; whereupon Fowler began a forcible detainer suit before a justice of the peace to recover possession. The son-in-law reconveyed to Funk and he filed a bill in equity to enjoin the forcible detainer proceedings and prayed for a cancellation of the contract of November 24, 1906, and to have the deed- declared an absolute conveyance, or if it should be held that Fowler had an equity of redemption, that the court fix the amount to be paid within a short day to be named.
    The theory of the bill was that the deed was an absolute conveyance; that the subsequent contract was intended and should be construed the same as though Funk’s title had no connection with Fowler; that the recital in the contract that Funk held the land in trust for Fowler was inserted by Fowler without Funk’s knowledge; that the relation of attorney and client existed between the parties, and that Funk therefore reposed confidence in Fowler and signed papers prepared by him without question, and that the contract was not binding on Funk if it contained anything indicating that the title was not in him absolutely; that Fowler had defaulted in performing obligations imposed on him by the agreement, and that a reasonable time for a conveyance thereunder to be demanded by Fowler had elapsed, and for that reason he had no further interest in-the land. Fowler answered, claiming that the whole transaction was an attempt to give Funk security, in the nature of a mortgage, on the land in question, and that the article of agreement of November 22, 1906, was well understood by Funk when it was executed, and was in fact the written expression of the oral agreement and understanding between them when the quitclaim deed was executed. He also filed a cross-bill praying an accounting and reconveyance upon payment of the amount so to be found due.
    A temporary injunction was granted on the original bill and a motion to dissolve it denied, and an appeal prosecuted by Fowler to this court, the orders of the trial court granting and refusing to' dissolve the injunction, was affirmed. (Funk v. Fowler, 179 Ill. App. 356.)
    The cause was referred to the master in chancery, who reported finding the allegations of the original bill true, and that the equities, were with the complainant therein, and recommended a decree, which was entered", finding the deed absolute and Fowler still indebted to Funk in the sum of $5,760.02, making the temporary injunction perpetual, and dismissing the cross-bill for want of equity; ordering Fowler to pay Funk said sum of $5,760.02, and in case of default that Funk have execution therefor,, and further ordering that Fowler pay the taxable costs of the suit. From which decree, a writ of error was prosecuted.
    McDougall & Chapman, for plaintiff in error.

      Abstract of the Decision.
    Mortgages, § 21*—when absolute deed held mortgage with right to redeem. The evidence held to show that an absolute conveyance of land was given as security merely, and that the grantor was entitled to redeem on paying the amount due his grantee.
    Lester H. Strawn and M. N. Armstrong, for defendant in error.
   Mr. Presiding Justice Carnes

delivered the opinion of the court.


text:
    A. T. Short, Appellant, v. O. F. Weisenborn, Appellee.
    Gen. No. 6,021.
    1. Payment, § 6

      —when acceptance of obligation of third person constitutes payment. The receipt of an acceptance or note of a third person is ordinarily presumed to be a conditional rather than an absolute payment of an existing debt.
    2. Payment, § 6*—when acceptance of obligation of third person presumed not intended as payment. The mere acceptance by a creditor of the obligation of a third person makes it collateral security only; and it will be presumed that the parties did not intend it to operate as an immediate, absolute discharge of the original debt, unless accepted with an actual agreement to that effect or under circumstances from which arises a positive inference of a discharge.
    3. Novation, § 1*—what constitutes a novation. A novation takes place where the maker of a note gave the payee an order on a third person for its payment from money due the maker, which was accepted by the third person, and the note was surrendered by the payee to the maker.
    4. Payment, § 6*—when acceptance of order on third person constitutes payment of note. An order on a third person given by the maker of a note for the amount thereof, and its acceptance by the payee, who thereupon surrendered the note to the maker, held a satisfaction of the original indebtedness.

      Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 9, 1915.
    Wolfenbarger & May, for appellant.
    Clarence W. Heyl, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

Appellant, A. T. Short, sued appellee, O. F. Weisenborn, in assumpsit and filed a declaration consisting of two special counts and the common counts. The court sustained a general demurrer to the declaration and entered judgment in bar against the plaintiff, from which judgment this appeal is taken, and only the question whether either of the special counts states a cause of action is argued. Appellant says that the case was presented to the court below on that question only, that it is the' only real issue in the case, and he asks us to decide it disregarding the fact that the common counts were a part of the declaration. Appellee presents his argument on the same assumption, and while the demurrer was both general and special, we will consider only whether either special count was good on general demurrer.

The first special count alleges that the defendant was on November 7, 1911, indebted to the plaintiff in the sum of $717 on account of a certain promissory note on which there was then a suit,pending; that defendant then gave plaintiff as conditional payment of and as collateral security for the payment of said indebtedness an order upon the American Land Securities Company, which order is set out in haec verba as follows:

1 ‘Peoria, III., November 7, 1911.
Whereas, O. F. Weisenborn is indebted to A. T. Short, in the sum of Seven Hundred Seventeen ($717.00) dollars, on account of a certain promissory note on which suit is now pending against the said O. F. Weisenborn in the Circuit Court of Peoria County, Illinois, and whereas the American Land Securities Co., a corporation of Carrington, North Dakota, is indebted to Wiesenborn Land & Loan Co., or will be indebted to the said Weisenborn Land & Loan Co. on account of commissions on land trade of Seven Hundred Seventy-five (775) acres of land, known as the Linder deal, which is to be paid when the Grand Forks County, North Dakota, land taken in on the said deal, is sold, and that the amount then to be paid to or to be due to the Weisenborn Land & Loan Co. when said land is sold is a greater sum than that owing by O. F. Weisenborn to A. T. Short, and the said O. F. Weisenborn is desirous of settling said suit and demand without further proceedings.
“Now therefore in consideration of the dismissal of said suit and the surrender of said promissory note by the said A. T. Short, the said O. F. Weisenborn and the Weisenborn Land & Loan Co. hereby sells, assigns, and sets over to the said A. T. Short the sum of Seven Hundred Seventeen ($717,00) Dollars, the same to be paid by the said American Land Securities Co. out of any money due or to become due to the said O. F. Weisenborn or to the Weisenborn Land & Loan Co. on account of the above transaction or otherwise, and the said suit to be dismissed and the said note to be surrendered when this order and assignment is duly accepted by the proper officer of the American Land Securities Co.
Weisenborn Land & Loan Co. (Seal) By O. F. Weisenborn, President.
O. F. Weisenborn (Seal)
The above and foregoing order is hereby accepted this, the 20th day of November, A. D. 1911.
American Land Securities Co.
By A. E. Swanson, Its President.”

American Land Securities Co.

Corporate Seal.

Carrington, N. D.

Further avers that plaintiff accepted that order as collateral or additional security for the payment of the said debt due from the defendant, and upon condition that the said sum of money in said order specified should be -paid; that said company has not paid the said order and plaintiff is unable to collect from it the amount due thereon; that he has obtained judgment against it for said amount, and an execution issued thereon has been returned: The defendant not found and no part satisfied; that the defendant has not paid the said sum of money so due from him to the plaintiff, etc.

The second count is as follows:

“And for that whereas the defendant, O. F. Weisenborn, was indebted to the plaintiff on towit, November 7, 1911, in the sum of towit, $717.00 and interest and being so indebted on towit said date promised to pay the same, and on said date executed and delivered to the plaintiff an order for the said sum of money according to the tenor and effect of the said order, which said order is set out in the first count of the declaration herein. By means whereof the said defendant then and there became liable to pay the said sum of money according to the tenor and effect of the said order; yet, although the time of payment in said order specified has long since elapsed defendant has not paid the same nor any part thereof nor the interest thereon, nor has the acceptor of the said order paid the said sum of money in said order specified or any part thereof, though both the defendant and the said acceptor have often thereto been requested but have refused and still refuse so -to do, to the damage of the plaintiff of $1,000.00, and therefore plaintiff sues, etc.”

The theory of the first count seems to be that the original debt was never released and that defendant is still liable to the plaintiff for its payment; and of the second count that the writing pleaded is an acknowledgment of a debt from the defendant to the plaintiff, upon which an action'will lie. The question is whether on the face of the writing itself there is shown a novation which is defined in 22 Cyc. 1130 as: “The substitution by mutual agreement of one debtor or of one creditor for another whereby the old debt is extinguished, or the substitution of a new debt or obligation for an existing one, which is thereby extinguished. It is a mode of extinguishing one obligation by another—the substitution, not of a new paper or note, but of a new obligation in lieu of an old one—the effect of which is to pay, dissolve, or otherwise discharge it.”

Appellant says: “No question of pleading can properly or in good faith be raised in this case. The instrument in question is before the court by appropriate and apt allegations. * * * There is nothing in the said order which indicates that there was no continuing liability of the debtor * * * or which indicates that the acceptor of said order was received by appellant as his debtor in lieu of the maker of the said order * * * or that it was received as a substitute of the original obligation.” Appellee construes the written order otherwise.

We think it is true, as claimed by appellant, that 'the receipt of an acceptance or note of a third person is ordinarily presumed to be a conditional rather than an absolute payment. Cheltenham Stone & Gravel Co. v. Gates Iron Works, 124 Ill. 623. It is said in that case that it is a mere presumption of the supposed intention of the parties and is open to explanation and rebutter, by establishing, by proper proof, what the real intention of the parties was and that “this may be established, not only by express words, but by reasonable implication from the attendant circumstances.” Appellant states the proposition in another way correctly, i. e: The mere acceptance by a creditor of the obligation of a third person makes it but collateral security, and the presumption is that it was not the intention of the parties that it should operate as an immediate and absolute discharge of the debt, and that nothing short of an actual agreement or evidence from which a positive inference of discharge can be made will suffice to produce such effect. It is however true that the agreement to discharge the existing debt need not be in express words, 29 Cyc. 1132. It may be either express or implied. Walker v. Wood, 170 Ill. 463.

If nothing further appeared than that appellee was indebted to appellant and gave him the acceptance of a third person, there would be no question that the original indebtedness was not novated, settled, satisfied or paid, and that an action could be brought thereon; and if the acceptance was in fact given and received in satisfaction and discharge of the original debt, the defendant could set up facts so showing, and if they were denied there would be an issue for a jury; but if there is no dispute about the facts it is a question of law for the court. 29 Cyc. 1140.

The question is whether the writing pleaded affirmatively shows that the acceptance was given and received as a discharge of the original debt. We are of the opinion that it does show that fact. It recites that appellee “is desirous of settling said suit and demand without further proceedings,” which shows his purpose to settle the original indebtedness, and appellant in joining in the instrument must be taken as understanding and acquiescing in the purpose for which it was made. A part of the consideration for the assignment of the account was the surrender by appellant to appellee of the note evidencing the indebtedness. While it is true, as appellant argues, that the note was only evidence of the debt, and that it might under conceivable circumstances be surrendered and the debt which it evidenced still exists, yet the fact of the surrender or cancellation of a note is of much significance in'determining whether the debt is satisfied, because, perhaps, of the usual and almost invariable habit and custom of people to carefully retain possession of promissory notes until they regard the debt discharged. We therefore find the general rule that possession by the debtor of a writing providing for the payment of money raises a presumption of payment. 30 Cyo. 1268; Tedens v. Schumers, 112 Ill. 263. It is so inconsistent with the practice of men, accustomed or unaccustomed to business, that collateral security to a promissory note should be taken and the note surrendered to the debtor, that we are of the opinion that such fact together with the other facts recited in the writing pleaded shows a novation. No other facts affecting the question are pleaded. The allegation in the counts that the order was given by the defendant as conditional payment and as collateral security and so taken by the plaintiff are but conclusions of the pleader, leaving the question to be decided, as it is argued, on the facts shown by the written order.

We conclude the court did not err in sustaining the demurrer to the declaration, except that the common counts were a part thereof ; and that the parties to the case have here waived the error so far as it arises from a failure to observe that the common counts were a part of the declaration. The judgment is therefore affirmed.

Affirmed.


text:
    Adam Nebergall, Administrator, Appellee, v. The Prudential Insurance Company of America, Appellant.
    Gen. No. 6,026.
    (Not to be reported in full.)
    Appeal from the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 9, 1915.
    Statement of the Case.
    Action by Adam Nebergall, as administrator of the estate of his son, Edward L. Nebergall, deceased, against the Prudential Insurance Company of America, on a policy issued on the life of the deceased. A jury trial resulted in a judgment against appellant for the full amount of the policy and interest thereon, $284.08, from which the defendant appeals.
    The policy, which was issued April 10, 1905, when he was sixteen years of age, at Ottawa, Illinois, where the insured resided with his parents, provided for the payment of a weekly premium of fifteen cents, and that it should be void in case of default of payment of premiums when due, except, that if the premium was not called for by a representative of the company, the insured might send it to the company before it should be in arrears four weeks; and in case of lapse for nonpayment of premiums, the policy might be revived within one year from date to which premiums had been paid, upon payment of arrears and showing-present insurability of insured; otherwise all rights under the policy were forfeited in case of nonpayment of premiums when due.
    The insured died as the result of an accident about two o’clock in the morning of April 11, 1911, while absent from Ottawa. His weekly premium due February 20, 1911, was paid March 15, 1911, and there was no payment until the day of his death, when one of his brothers, after hearing of the accident, but not of the death, went to the office of the company and paid $1.35, which was received by one Donovan, who gave a receipt for the same, reciting that the premium would again fall due April 17, 1911. The company afterwards returned thirty-five cents of this money and used one dollar of it to pay for a certified copy of the record of the coroner’s inquest. Proofs of death were made and the company refused to pay on the ground that the policy was not in fo,rce at the time of the death, as it had lapsed and been forfeited.
    The company admitted that if its practice and course of dealings with the insured and others, known to the insured, had been such as to induce a belief that so much of the contract as provided for a forfeiture in a certain event would not be insisted on, that the company would not be allowed to set up sucia forfeiture as against one in whom its conduct had induced such belief.
    The plaintiff showed that a number of times during the life of the policy, premiums had been received by the company when more, and some of them much more, than four weeks overdue, without the insured complying with the provision for reinstatement of members whose policies lapsed by nonpayment of dues; that insured had been absent from his home much of the time since the policy was issued, and that his premiums had been paid by his father or some other member of the family. The plaintiff also produced witnesses to prove the course of dealings of the insurer with other members of the family of the insured, and to show that there were nine children in the family; that they and their father carried policies in the defendant company, and that payment of premiums on such policies had, before the death of the insured, been accepted on various and different occasions, when from five to thirteen weeks in arrears, without a forfeiture being declared, and that this practice was known to the insured.
    The following instruction offered by the defendant was refused:
    “The court instructs the jury that the burden of proof to show that the policy introduced in evidence was in force at the time of the death of said Edward L. Nebergall, is on the plaintiff and he must prove that such policy was in force by the preponderance or greater weight of evidence.”
    McDougall, Chapman & Bayne, for appellant; Barr, MoNaughton & Barr, of counsel.
    Butters & Clark, for appellee.

      Abstract of the Decision.
    1. Insurance, § 350

      —when right to forfeit policy for nonpayment of premiums waived by insurer's conduct. An insurer will not be permitted to assert a forfeiture of a policy of life insurance for nonpayment of premiums when due where its course of dealing with the insured has led him to - believe that the provision for forfeiture would not be relied on.
    2. Insurance, § 634*—admissibility of' evidence of custom to accept overdue premiums. Where an assured was absent from home much of the time, it may be shown in an action on his policy, as tending to prove a .course of dealing leading him to believe that a provision for forfeiture for nonpayment of weekly premiums would not be insisted on, that other members of his family who -were also insured in the same company were, to the knowledge of the assured, in the habit of paying his and their own premiums without objection from the company, when from five to thirteen weeks in arrears.
    3. Insurance, § 634*—when custom to accept overdue premiums may be shown. Where an assured was absent from home the greater portion of the time, and members of his family acted as his agent in paying not only his but their own weekly premiums, the habit of the insurer to accept payment without objection, when from five to thirteen weeks in arrears, may be shown in an action on the policy as tending to prove the waiver of a provision for forfeiture for nonpayment.
    4. Appeal and error, § 1245*—when one who obtains rejection of competent evidence may not allege failure of proof. That a necessary fact was not proved cannot be alleged by an appellant where the failure to do so was due to the sustaining of bis objection to the admission of competent evidence.
    5. Insurance, § 646*-—when waiver of forfeiture for nonpayment of premiums shown. The evidence in an action on a policy of life insurance held sufficient to sustain a finding of the waiver by the insurer of a provision for the forfeiture of the policy for nonpayment of weekly premiums when due.
    6. Insurance, § 350*—when authority of agent to waive forfeiture for nonpayment of premiums ratified by insurer. Notwithstanding that an agent lacked authority to .waive a provision of a life insurance policy as to forfeiture for nonpayment of weekly premiums when due, yet it may be held from a course of dealing in receiving past due premiums from an assured, that the insurer knew of and ratified the act of the agent.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

7. Insurance, § 379*—when acceptance of premiums after assured’s death revives forfeited policy. The acceptance hy an agent of the payment of premiums without knowledge of the death of the assured does not revive a previously forfeited policy, of life insurance.

8. Insurance, § 664*—sufficiency of evidence to show that insurer did not regard policy as forfeited. The fact that an agent of an insurer, without knowledge of the assured’s death, accepted and receipted for overdue premiums, tends to show that he did not regard the policy as then forfeited for previous nonpayments of premiums, although the amount of such payment was afterwards returned by the insurer.

9. Insurance, § 660*—when refusal of instruction as to burden of proof not prejudicial. The improper refusal of a requested instruction in an action on a policy of life insurance, as to the burden of proof to show that it was in force at the date of the assured’s death, held not reversible error in light of the instructions giyen.


text:
    F. G. Allen et al., Appellants, v. The United States Fidelity & Guaranty Company of Baltimore, Maryland, Appellee.
    Gen. No. 6,032.
    1. Officers, § 2

      —imposing duties of assessment supervisor on county treasurer as creating new office. A new office was not created by section 2 of the Revenue Act (J. & A. If 9517) providing that during their terms of office, county treasurers should be ex officio supervisors of assessments in their respective counties.
    2. Counties, § 45*—when county treasurer not entitled to extra compensation as assessment supervisor. A county treasurer is not entitled to retain in addition to the compensation fixed by the county board, that prescribed by section 2 of the Revenue Act (J. & A. If 9517) for his services as supervisor of assessments.
    3. Principal and surety, § 8*—when losses due to carelessness or errors of judgment within bond covering acts constituting lar

      cenij or embezzlement. A liability incurred by the sureties of a county treasurer due to honest errors of judgment or acts of carelessness on his part are not within a bond indemnifying the sureties against loss or damage by “reason of any act of fraud or dishonesty, amounting to larceny or embezzlement” on the part of such officer.
    4. Contracts, § 199

      —when punctuation considered in construing contract. In the construction of contracts and other writings, punctuation, although not necessarily controlling, sheds light on the meaning of the parties.
    5. Principal and surety, § 8*—when liability accrues on bond against acts constituting larceny or embezzlement. No liability arises on a bond of indemnity against damage or loss sustained by “reason of any act of fraud or dishonesty, amounting to larceny or embezzlement” of a county treasurer, unless some act is shown which amounts to one of such crimes, since the words “amounting to larceny or embezzlement” qualify the word “act” and not “dishonesty.”
    6. Principal and surety, § 8*—wrongful retention by county treasurer of salary as assessment supervisor as within indemnity against acts constituting larceny or embezzlement. A liability incurred by the sureties of a county treasurer on it being held that he had no right to retain the compensation fixed by section 2 of the Revenue Act (J. & A. ff 9517), for his services as , supervisor of assessments, is not within the terms of a bond indemnifying the sureties from loss or damages “by reason of any act of fraud or dishonesty, amounting to larceny or embezzlement” on the part of such officer, where, in retaining the money, he acted without fraud or dishonesty on the advice of credible and competent counsel, and there was room for an honest difference of opinion as to bis right thereto.
    7. Appeal and error, § 1466*—when admission of incompetent evv dence not reversible error. A case will not be reversed for the admission of incompetent evidence where no question of fact was presented for the jury, and the court properly directed a verdict.
    Appeal from the Circuit Court of Rock Island county; the Hon. Robert W. Olmsted, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 9, 1915.
    J. T. & S. R. Kenworthy and J. B. & J. L. Oakleaf, for appellants.
    Judah, Willard, Wolf & Reichmann and Searle & Marshall, for appellee.

      See IUinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

David H. Lyons was county treasurer of Bock Island county for the term, four years, beginning in December, 1902. The appellants, F. G. Allen and fourteen others, were the sureties on his official'bond, which was conditioned that he should, “justly and fairlyj account for and pay over all moneys that may come into his hands by virtue of his said office, and shall well and truly perform all and every act and duty enjoined upon him by the laws of this State to the best of his skill and ability, and shall deliver up all moneys, papers, books, records and other things appertaining to said office whole, safe and undefaced, when lawfully required to do so.”

These sureties obtained from the appellee, The United States Fidelity & Guaranty Company of Baltimore, Maryland, an indemnifying bond which was by renewals kept in force during the entire term of office, conditioned that it would, “pay and reimburse the obligees aforesaid all costs, losses, damages and expenses, which they may sustain or suffer by reason of any act of fraud or dishonesty, amounting to larceny or embezzlement on the part of the said David Hamilton Lyons, in connection with the duties of his said office, and which shall have been committed during the period from December 1, 1902.”

County treasurers were during this time ex officio supervisors of assessments in their respective counties under a provision of our Bevenue Act (J. & A. ¶ 9517), and it is there provided that they shall “receive as compensation for his services as supervisor of assessments the sum of one thousand dollars ($1,000) per annum.”

The law is now settled that this provision of the Bevenue Act did not create a new office and that the county treasurer as supervisor of assessments is not entitled to retain the compensation fixed by that statute, in addition to his compensation fixed by the county board. There was an opinion to that effect filed by the Supreme Court in December, 1903, construing the act as it stood prior to the amendment of 1903, (Foote v. Lake County, 206 Ill. 185); another followed in February, 1905 (Parker v. County of Rich-land, 214 Ill. 165); and another in December, 1911 (People v. Bowman, 253 Ill. 234). There is now and can be, no question that Lyons had no legal right to retain any money on account of that provision of the statute, but there was room for honest difference of opinion in the matter. He did retain during his term of office, acting under the advice of credible and competent attorneys at law of his county that he had the legal right to do so, $3,416.70 as his compensation as supervisor of assessments.

In December, 1906, the county board instructed the State’s Attorney of the county to procure the opinion of the Attorney General as to the right of Lyons to retain this amount on that account, and receiving an opinion that he had no right to do so, the board after-wards caused a suit in chancery to be begun and prosecuted against Lyons and the sureties on his official bond, to reform the bond and recover said amount, which suit was determined on appeal by this court and opinion filed March 13, 1912 (People v. Lyops, 168 Ill. App. 396). The decree in that case ordered the payment of said sum, and interest and costs by the defendant. Appellants, the sureties, paid the amount required by the decree and afterwards brought this action claiming a liability for payment of decree, interest, costs and expenses of $5,123.64 on the indemnifying bond given them by appellee. A jury trial resulted in a verdict directed for the defendant and judgment thereon against the plaintiffs, from which judgment this appeal is prosecuted.

Appellants argue that appellee stands in the place of Lyons and its liability to them is the same as his. But it is evident from a comparison of the language of the above quoted conditions of the two bonds that appellee undertook to restrict its liability to losses caused by the dishonesty of Lyons, and did not intend to become liable for honest erro'rs of judgment, or acts of carelessness, that appellants were clearly responsible for under the conditions of the bond executed by them.

Appellants construe the bond as an indemnity against any act of fraud, or any act of dishonesty amounting to larceny or embezzlement, thus making the words “amounting to larceny or embezzlement” qualify the word “dishonesty,” instead of the word “act.” They claim that the case of City Trust Safe Deposit & Surety Co. v. Lee, 204 Ill. 69, is decisive of the question, and quote the language of the bond in that case as “dishonesty or fraud, amounting to larceny or embezzlement,” and say the court held that the words “larceny or embezzlement” did not qualify the word “dishonesty” but did qualify the word “fraud.” Appellants ’ quotation is not from the opinion of the court. The Supreme Court did not quote the condition of the bond under consideration but said: ‘ ‘ The loss guarantied was that sustained by the appellee through the dishonesty or any act of fraud of Morrow amounting to larceny or embezzlement.” The case was heard by the Supreme Court on appeal from the Appellate Court of the First District. The opinion of the Appellate Court is reported in 107 111. App. 263, and the language in the condition of the bond is quoted on page 267, where it is said that the guaranty was against loss “sustained by- the employer by or through the dishonesty or any act of fraud of the employee amounting to larceny or embezzlement, in connection with the duties, ’ ’ etc. It will be observed that the language in the two instruments differ materially, and the construction of the clause of the bond in the Lee case, supra, does not necessarily control here. In quoting the condition of the bond in question here, we have followed the punctuation as shown by the record. It will readily be seen that if the comma be placed after the word “fraud” instead of the word “dishonesty” the meaning contended for by appellants might be more readily adopted. In the construction of contracts and other writings, piinctuation, though, not necessarily controlling, sheds light on the meaning of the parties. Osborn v. Farwell, 87 Ill. 89; Crawford v. Burke, 201 Ill. 581. The Appellate Court of the First District in American Bonding & Trust Co. v. New Amsterdam Casualty Co., 125 Ill. App. 33, had a similar question to determine. The guaranty in that case was against “any act of fraud or dishonesty amounting to larceny or embezzlement committed by the employee during the continuance of this bond.” The trial court in its instructions to the jury assumed that the words “amounting to larceny and embezzlement” did not qualify the words “any act of fraud;” doubtless, as the Appellate Court said, considering the Lee case, supra, as controlling. The Appellate Court points out the difference in the language of the, two guaranties and says that it seems clear that in the bond it was considering the words “fraud or dishonesty,” and the words “amounting to larceny or embezzlement” are both phrases qualifying the word “act.” We are of the opinion that it is clear in the case at bar that those phrases qualify the word “act”; and admitting appellants’ contention that this contract is to be liberally construed in their favor, still we must hold that there is no liability under this bond unless some act be shown that amounted to larceny or embezzlement.

Appellants offered in evidence the bill and decree in the chancery case, above mentioned, in which they were parties defendant, and introduced evidence that appellee was notified of the pendency of that suit; and they claim that appellee is bound by the decree, though it did not become a party to the action. This position is denied by appellee, on the ground that the decree was not pleaded in this case; that notice to'appellee of the pendency of that suit was neither pleaded nor sufficiently proven; and that the conditions of the official bond are so different from the conditions of the indemnifying bond sued on, that acts may be a breach of the first and not of the second. But appellee insists that if the decree in that case is to be considered in this case, it is not conclusive, and that other parts of the record in that case must also be considered, and call our attention to a stipulation appearing of record in that case and introduced in evidence by appellants as follows:

“It is stipulated and agreed between the parties hereto, by their respective counsel, that the sum of three thousand four hundred sixteen and 70/100 dollars ($3,416.70), found by the decree to be due from the defendants to the complainant, is money retained by the defendant, David H. Lyons, under the claim of right as salary for his services as supervisor of assessments, and that said sum is the exact amount that his salary would amount to due him, providing he is entitled to be allowed compensation as supervisor of assessments.”

Appellee also offered in evidence the brief filed in this court on the trial here of that chancery case, by the appellants, in which brief they strongly urged that the conduct of Lyons in the matter was entirely free from fraudulent acts, was open, bold, honest and sincere, and much more to the same effect.

It is not necessary to decide the questions of law and fact controlling the effect of that chancery proceeding on the issues here. Appellants offered the decree in evidence and say it is to be taken as conclusive of the matters there found. We find there cited that:

“He the said Lyons, did retain, keep and convert to his own use a certain sum of money, to-wit, $3,416.70, which came into his hands and possession as county treasurer, as aforesaid, which said sum of money the said Lyons claimed he was entitled to as salary, as supervisor of assessments of said county, but which said sum the court finds he was not so entitled to as supervisor of assessments, or otherwise. * * * That the said David H. Lyons has breached and violated his said official bond and the terms and conditions thereof, and the said bond is hereby declared forfeited. ’ ’

It matters little whether even this finding is regarded as conclusive. There is no controversy about the amount Lyons retained and the reason for retaining it, and we may exclude or include all the other evidence as to the record of that chancery case and we have the same result. Appellants were entirely right when they argued in this court, on the former trial, that there was no evidence of fraud or dishonesty on the part of Lyons; and this is the conclusion to be drawn from that part of the record in this case which appellants say is competent evidence, excluding that part which they say is not competent evidence. Appellants say in their argument here:

“There are no disputed questions of fact involved in this case, unless it be the intention of Lyons in taking the money of the county and appropriating it to his own use while county treasurer of the county. All the facts essential to the appellants’ recovery are either admitted on the record or proved by the appellants and not disputed by the appellee.” This is true so far as any controversy about the facts is concerned, and would be true as to the balance of the statement if appellants were not, as we hold, mistaken in their statement that “the appellee occupies precisely the position of Lyons so far as indemnifying the appellants is concerned.”

Neither do we find in the record any question of fact as to the intention of Lyons in taking and retaining the money, nor do we find any evidence that shows or tends to show that he was guilty of larceny or embezzlement in so doing. Of course evidence that a man took property and used it is a part of the chain of evidence that may be required to convict him of larceny, but it does not prove or tend to prove larceny until it is coupled with some more evidence that he intended to steal it. One cannot be found guilty of the larceny of a loaf of bread on proof that he carried it out of a baker’s shop; and if he did take it and carry it away under the belief that it was his own property he does not become guilty of larceny or any other crime if, before he discovers that it was in fact the property of another, he has eaten it and put it out of his power to restore it to the true owner. We find nothing in the record that would sustain a conviction of larceny or embezzlement or even that would justify a committing magistrate in finding that there was probable cause requiring a trial.

Appellants urge that the case should be reversed, because of alleged errors of the court in admitting incompetent evidence. We would discuss this question if the verdict had not been directed, or rather if it had been a case where there was some fact for the jury to find, and the judgment had rested on their findings. But the trial court was of the opinion that there was no controverted question of facts to be submitted to the jury, and in directing a verdict took it upon himself to decide the question as one of law, which it was his duty to do if there was no evidence in the case which with all fair presumptions flowing therefrom would justify a verdict for the plaintiffs. We are of the opinion that the court did not err in so doing, and it follows as in any case decided by the court, whether in law or chancery, that while there might be reversible error in excluding proper evidence, there can hardly be reversible error in admitting improper evidence. Finding no error in the record the judgment is affirmed.

Affirmed.