author: Mr. Presiding Justice McDonald

text:
    In re Petition of Edgar F. Seney and Rowland T. Rogers. Edgar F. Seney, Appellant, v. James H. Knight, Administrator, Appellee. In re Petition of Edgar F. Seney and Rowland T. Rogers. Rowland T. Rogers, Appellant, v. James H. Knight. Administrator, Appellee.
    Gen. No. 24,189. Gen. No. 24,190.
    1. Execution, § 294

      —when malice is gist of action. Defendants’ motive may become an issue in an action in trover and, when it does, malice necessarily becomes the gist thereof.
    2. Execution, § 294

      —when question of malice is res adjudicata. Where, in an action in trover in the Municipal Court, the statement of claim charged and the jury, by their verdict, found defendants guilty of having wilfully, maliciously, tortiously and fraudulently converted the property to their own use and the court entered judgment thereon, the question of malice was res adjudicata, and the County Court properly denied a petition of defendants for a discharge, under section 2 of the Insolvent Debtors’ Act (J. & A. 6199), from imprisonment on a capias ad satisfaciendum.

    Appeal from the County Court of Cook county; the Hon. John H. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Affirmed.
    Opinion filed March 18, 1919.
    Adams, Crews, Bobb & Wescott, for appellants.
    Winston, Strawn & Shaw, for appellee; Edward W. Everett and R S. Tuthill, Jr., of counsel.

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

   Mr. Presiding Justice McDonald

delivered the opinion of the court.

Appellants, Edgar F. Seney and Rowland T. Rogers, petitioned the County Court of Cook county for a discharge under section 2 of the Insolvent Debtors’ Act (J. & A. ¶ 6199), from imprisonment on a capias ad satisfaciendum issued on a judgment obtained against them by appellee, in an action of trover brought in the Municipal Court of Chicago.

The County Court, upon hearing, denied the relief prayed for in the said petitions and entered an order finding that malice was the gist of the action in which said judgment was rendered, and remanded appellants into the custody of the sheriff, to abide the further order of the court, from which said order these appeals have been prosecuted.

Appellants argue with much force that the County Court erred in holding that malice was the gist of the action in question and in remanding them into the custody of the sheriff; and contend that the unlawful taking of property is the gist of an action in trover, and that under no circumstances can malice become the gist thereof.

The question here presented is not entirely free from doubt, and the decisions of our Appellate Court on it are not in harmony.

It has been held that where the taking of the property was characterized by malice, oppression or a wanton disregard of the owner’s rights, such facts may be alleged and proven in an action of trover, for the purpose of awarding plaintiff exemplary damages (E. E. Bolles Wooden Ware Co. v. United States, 106 U. S. 432; 38 Cyc. 2104-6; 28 Am. & Eng. Encyc. Law 732, and cases there cited; Wilde v. Hexter, 50 Barb. [N. Y.] 448). We conclude therefrom that defendant’s motive may become an issue in an action in trover, and that, when it does, malice necessarily becomes of the gist thereof. The fact that the. unlawful conversion is usually said to be the gist of an action in trover does not, in our opinion, preclude the right to make malice of the gist thereof, when pleaded and proven.

Appellee, in his statement of claim filed in the Municipal Court, charged appellants with having wilfully, maliciously, tortiously and fraudulently converted certain bonds and notes, of the value of $58,000, to their own use, for the purpose and with the intention of cheating and defrauding appellee out of same. The jury by their verdict found appellants guilty of having wilfully, maliciously, tortiously and fraudulently converted the said property to their own use, and the court entered judgment thereon, which is res adjudicata of that question. Jernberg v. Mix, 199 Ill. 254.

In our opinion, malice was the gist of the said action brought against appellants in the Municipal Court, and it follows, therefore, that the County Court properly denied the relief prayed for.

Accordingly the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice McDonard

license: Public Domain

text:
    M. I. Tuny, Appellee, v. Carl H. Mayer et al. Gulbransen-Dickinson Company, Appellant.
    Gen. No. 24,203.
    1. Creditors’ suit, § 9a

      —what included in lien of creditors’ hill. The lien of a creditors’ hill, provided for by section 49 of the Chancery Act (J. & A. 1f 929), includes any “things in action belonging to the defendant,” whether recoverable at the time the suit is commenced or later.
    2. Creditors’ suit—when rights of salesman in commissions may he reached hy creditors’ hill. Where a debtor was employed as a salesman of goods in a certain territory, his compensation to be a percentage on all accepted orders sold by him direct or received by mail from dealers in that territory, he acquired a vested interest, as of the date of the contract, in all orders thereafter received which were subject to his commission, which might be reached by a creditors’ bill, and it is immaterial that the commissions thee, existed only in possibility and that the amount thereof was uncertain.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Affirmed.
    Opinion filed March 18, 1919.
    Edward B. Heart, for appellant.
    King, Brower & Hurrbut, for appellee.

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

   Mr. Presiding Justice McDonard

delivered the opinion of the court.

This was a creditors’ bill filed by appellee, who was a judgment creditor of one Mayer, to reach the latter’s right to commissions accruing under a certain contract of employment with appellant, the Gulbransen-Dickinson Company.

The original bill, which was filed by appellee on January 14, 1916, proceeded upon the theory that the said Mayer had made a fraudulent conveyance to his wife* of certain of his assets. Appellant was not made a party thereto hut was brought in by way of a supplemental bill filed October 10, 1916, which, after setting forth the filing of the original bill, etc., averred that appellant had become indebted to said Mayer in the sum of $500 for commissions earned, and would become further indebted to him by the fulfillment of the said contract of employment.

The supplemental bill prayed that appellant be ordered to pay to appellee whatever sum or sums of money might be adjudged to be then due and owing by it to the said Mayer, together with all sums of money which might become due in the future from appellant under the terms of the said contract of employment. It also contained certain interrogatories seeking to elicit information showing the sales made by the said Mayer under the said contract of employment and the orders received by appellant upon which the said Mayer was entitled to a commission, the amounts paid to him, and the balance due and to become due thereunder.

Summons issued against appellant on October 13, 1916. On April 30, 1917, appellant filed answer to said supplemental bill, denying any indebtedness to said Mayer, and averring that it did not know whether or not it would become indebted to him upon the fulfillment of the said contract of employment; and, in answer to an interrogatory, stated that after giving said Mayer credit for all commissions due him, he was indebted to appellant in the sum of $154.07.

Under the terms of the said contract of employment, the said Mayer was employed as a salesman for one year from June 16, 1916, to sell goods in the territory designated, for which appellant agreed to pay him, by way of compensation for his services, a commission of five per cent “on all accepted orders, sold by him direct to, or received by mail from dealers whose purchasing offices are located in the above described territory,” with certain exceptions therein noted.

The decree herein appealed from, which was entered November 17, 1917, after reciting that the court had jurisdiction of the parties and of the subject-matter of the suit, found that the said Mayer, at the time of the entry thereof, was indebted to appellee in a sum upwards of $2,000 under a judgment obtained in the Municipal Court of Chicago on November 4, 1911, upon which execution issued, which was returned unsatisfied; that by virtue of the said contract of employment, the said Mayer acquired a vested interest as of the date thereof, in all orders thereafter received by appellant from persons whose orders had been previously solicited by the said Mayer, such orders being designated as repeat orders; that such interest was a property right, upon which appellee acquired a lien as of October 13, 1916, the date when summons under said supplemental bill was served upon appellant; and that appellee had acquired a lien for the satisfaction of his said judgment, on all of said commissions which were, due the said Mayer at the time of the service of said summons upon appellant, and all that had accrued since then, up to the time of the filing of appellant’s answer.

It was further ordered that the cause be referred to a master in chancery, with directions that the said master take an account of all commissions, including those due on repeat orders, down to the date of the service upon appellant of the summons under appellee’s supplemental bill; and another account showing the amount of all commissions, including those on repeat orders, earned by said Mayer under said contract, from October 13, 1916, up to the time appellant filed its answer, together with any other information necessary to determine whether or not appellant was indebted to the said Mayer for commissions; and to report his conclusions of law and of fact to the court.

The principal question here presented for determination is, whether or not under the aforesaid contract of employment the said Mayer obtained such an interest in commissions to be earned thereunder as might be reached by creditor’s bill.

Section 49 of the Chancery Act (J. & A. ¶ 929), under which appellee’s supplemental bill was filed, provides that whenever a person shall recover a judgment against another, upon which execution shall have issued and been returned unsatisfied, either in whole or in part, the party suing out such execution may file a bill in chancery against such defendant and any other persons, to compel the discovery of any property or things in action belonging to the defendant, and the court is given power to decree a satisfaction of the said judgment out of any personal property, money or things in action found to be belonging to defendant, etc.

It is argued by appellant that the lien of a creditors’ bill is limited to assets of the judgment debtor recoverable by him at the time the bill is filed. In our opinion, section 49, supra, does not so limit the creditors’ remedy, but, on the contrary, it includes any “ things in action belonging to the defendant,” whether recoverable at the time of the commencement of the suit or later.

- In Young v. Jones, 180 Ill. 216, a contract was made by certain county supervisors with one Lane, to construct a bridge. The contract was dated February 26, 1895. A few days later the said Lane executed assignments of various parts of the money he expected to receive under the said contract. Subsequently the legislature enacted a law providing that any persons furnishing labor or materials on a public improvement in the State shall have a lien on the moneys, bonds or warrants due or to become due the contractor for the construction thereof. A controversy arose as to whether the lien creditors under the said statute or the assignees under the aforesaid assignments had the prior right to the said funds. Although at the time the said assignments were made the contract had not been performed and the fund in question was not in existence, the court held that the said Lane had a vested right in said fund and that it was not essential to the validity of the assignments that the subject-matter thereof have an actual existence at the time.

So in the case at bar, we are of the opinion that when the said contract of employment was entered into, the said Mayer acquired a vested right in the commissions that were to accrue under it. His right thereto being vested, it is immaterial that the commissions then existed only in possibility and the amount thereof was uncertain. They had at least a potential existence.

We conclude, therefore, that the decree of the Circuit Court is correct, and accordingly it will be affirmed.

Affirmed.


text:
    William H. Wohlberg, Appellee, v. Merchants Reserve Life Insurance Company, Appellant.
    Gen. No. 24,207.
    1. Municipal Court of Chicago, § 26

      —when original stenographic report stricken from files. The original stenographic report having been filed in lieu of a copy thereof, without the requisite stipulation authorizing such procedure, it will be stricken from the files on motion of appellee.
    2. Municipal Court of Chicago, § 31

      —when judgment affirmed. The stenographic report, filed as part of the record upon appeal from the Municipal Court, having been stricken from the files on motion of appellee, and the common-law record presenting no question to the court, the judgment will be affirmed.
    Appeal from the Municipal Court of Chicago; the Hon. Howard Hates, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Affirmed.
    Opinion filed March 18, 1919.
    Gideon S. Thompson, for appellant.
    Channing L. Sentz, for appellee.

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

   Mr. Presiding Justice McDonald

delivered the opinion of the court.

This is an appeal by defendant, the Merchants Reserve Life Insurance Company, from a judgment against it for $4,679.43, entered on a directed verdict, in an action of the first class brought in the Municipal Court of Chicago.

Plaintiff (appellee) has filed a motion to strike from the record the original stenographic report which was filed in lieu of a copy thereof, without the requisite stipulation authorizing such procedure. This motion was reserved to the hearing.

The question presented by said motion having been decided in the recent case of Marshall Field & Co. v. Nyman, 285 Ill. 306, in favor of plaintiff’s contention here, the motion must be allowed.

The original stenographic report will therefore be stricken from the record; and there being no question presented by the common-law record before us, the judgment will be affirmed.

Affirmed.


author: Mr. Justice Barnes

text:
    The North American Life Insurance Company, Appellee, v. Maryland Casualty Company, Appellant.
    Gen. No. 24,147.
    1. Indemnity, § 9

      —how bond insuring deposit account against insolvency of depositary bank construed. In a suit upon a bond given by a casualty company insuring a deposit account of appellee against the insolvency of the depositary bank for a term of one year, the bond containing an indorsement providing that wherever the words “deposit account” appear in the bond they shall be construed to mean a certain certificate of deposit issued by the bank, held that the sum represented by the certificate, not the certificate itself with its conditions and limitations, was the thing insured, and the liability of the insurer for its nonpayment might arise at any time before expiration of the policy, and did not depend upon the diligence of insured in presentation or collection of the certificate on the day it was due.
    2. Indemnity, § 8

      —what construction given contract. Where the words of an insurance contract are so framed as to leave room for construction, the courts are inclined to lean against the construction which will impair the indemnity of the insured.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Thompson, Judge, presiding. Heard in the Branch Appellate Court at the Miarch term, 1918.
    Affirmed.
    Opinion filed March 18, 1919.
    Kelly, Hale, Dammann & Cooltdge, for appellant; J. F. Dammann, Jr., of counsel.
    Thomas E. Rooney and Ferdinand Goss, for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.

This is a suit based upon an alleged breach of a bond given by appellant Casualty Company to appellee Insurance Company insuring a deposit of appellee against the insolvency of the La Salle Street Trust & Savings Bank. The case was heard without a jury and the court’s finding and judgment were for plaintiff in the sum of $9,160.95.

The bond is dated December 11, 1913, and reads as follows:

“Whereas, North American Life Insurance Company of Chicago, Illinois (hereinafter called the Depositor) has opened a deposit account with the La Salle Street Trust & Savings Bank (hereinafter called the Bank) and desires to be secured against the insolvency of said Bank.

“Now, therefore, in consideration of a premium of Fifty 00/100 Dollars ($50..00) the Maryland Casualty Company, a corporation of the State of Maryland having its principal office in Baltimore City, in said State, (hereinafter called the Company) does hereby agree that if, during a term commencing at 9 o’clock a. m., on the 11th day of December, 1913, and ending at the close of banking hours of said Bank on the 11th day of December, 1914, the said Bank for a cause amounting to insolvency, or to temporary or permanent suspension of general payments, shall fail to pay to the Depositor upon proper order any sum or sums which shall be at the time legally due the Depositor, the Company will, within ten days after receipt of proof, satisfactory to it of a default hereunder, pay to the Depositor any such amount not exceeding the sum of Ten Thousand and 00/100 Dollars ($10,000.00) hereinafter called the penalty.”

On the back of the bond was indorsed:

‘ ‘ * * * It is further understood and agreed, that wherever the words ‘deposit account’ appear in the within bond the same shall be construed to mean certificate of deposit No. 201, dated December 11, 1913, issued by the La 'Salle Street Trust & Savings Bank to North American Life Insurance Company.

###****

“Dated at Chicago, Illinois, this 11th day of December, A. D. 1913.

Maryland Casualty Company,

By O. P. Alford,

Attorney.”

The hank certificaté referred to stated that the Insurance Company had deposited with it “Ten Thousand Dollars payable to the order of Themselves in current funds on the 11th day of June, 1914, without grace, on the return of this certificate properly indorsed. 3% Interest.”

About noon of the day said certificate fell due the Insurance Company deposited it for collection with the Colonial Trust & Savings Bank which sent it at once by messenger to the La Salle Bank for payment. The messenger took in lieu thereof a cashier’s check and left the certificate, which was stamped “paid.” Later in the day the Colonial Bank returned to the La Salle Bank its cashier’s check and received in place of it a check of the latter drawn on the Com Exchange Bank, which was presented within a half-hour to the Com Exchange Bank. The latter bank refused to pay or certify it because it was then after regular banking hours. The following day, June 12th, the La Salle Bank failed to open its doors for business, and the Corn Exchange Bank refused to pay the check. The Colonial Bank has refused to pay the check or give the Insurance Company credit therefor. The La Salle Bank had $82,000 in cash at the close of banking hours June 11th.

Appellant contends that said certificate with its conditions and limitations, and not the sum represented by it, was the thing insured by the bond; and that the certificate must be read into the contract as if fully set out therein. And it is argued that as the certificate was payable in “current funds” and appellee’s agent accepted something else on the day of its- maturity when the bank was able to pay in cash, and after which it was not, appellant under general rules applicable to suretyship was discharged from liability.

But we cannot accept the premises on which the conclusion is reached. We think it was the intendment of the bond to insure the deposit represented by the certificate rather than the certificate itself. If appellant’s construction be correct, then there could be no liability on the bond for nonpayment of the certificate after June 11th, and the words in the bond which designate the period of liability as extending up to December 11th would have no application or significance. On the contrary, they would if the deposit represented by the certificate be deemed the thing that is insured. Giving construction, therefore, to all parts of the contract, we think the bond contemplated that liability for nonpayment of the certificate might arise from the causes designated therein any time up to December 11, 1914, and that, therefore, it is not a question of diligence in presentation or collection of the certificate on June 11th. If there be any doubt as to which of the two constructions is correct, then in aid of construction we might invoke the familiar rule stated in Terwilliger v. National Masonic Acc. Ass’n, 197 Ill. 9, that “where the words of a contract of insurance are so framed as to leave room for construction, the courts are inclined to lean against the construction which will impair the indemnity of the insured.”

The judgment will be affirmed.

Affirmed.


text:
    Thomas H. Stevenson, Appellant, v. Sherburne M. Earling and Harold S. Cook, trading as S. M. Earling & Company, Appellees.
    Gen. No. 24,161.
    1. Sales, § 364

      —what is right of election of remedies by purchaser where vendor abrogating contract sends cheeks for amount paid. Damages accruing from the abrogation by the vendors of a contract for the purchase of corporate stock could not be adjusted and determined by the ex parte action of the vendors in sending to the purchaser certified checks for the amount paid on the contract, and the purchaser had the right, after notice of the abrogation, to determine whether he would accept the checks as the measure of his damages or elect to stand upon his contract.
    2. Payment, § 5

      —applicability of common-law rule as to by check. The common-law rule that a check ordinarily does not constitute payment of an indebtedness unless it is accepted as such by the creditor is applicable in this State.
    3. Sales, § 90

      —when actual receipt of notice of abrogation of contract by vendor necessary to bind purchaser. Where a lawyer, employed in the offices of a law firm, contracted to purchase corporate stock and made a payment thereon, which contract was abrogated by the vendors, a notice thereof, with certified checks for the sum paid, mailed to him at such offices and delivered there during a prolonged absence on account of illness and placed in his desk by some one not in his employ, was not binding upon him until actually received upon his return.
    4. Payment, § 6

      —when receipt of checks and depositing in bank for collection does not constitute. Where one, who had contracted for the purchase of corporate stock, upon receiving notice of abrogation of the contract with certified checks for the amount paid with interest, sent the checks to his bank for collection, held that while he thereby manifested an election to receive the checks as the measure of damages for breach of the contract, he did not agree to accept them as payment.
    5. Banks and bankino, § 123

      —when deemed that checks not delivered to payee until actually received. One who had contracted for the purchase of corporate stock owed to the vendors no duty to have his mail looked after during his illness so that checks mailed to him, as a return of the money paid on the contract, upon its abrogation by them and delivered at his place of employment during such illness, cannot be deemed to have been delivered to him until he actually received them.
    6. Banks and banking, § 130

      —when failure of payee to give notice to drawer of dishonor of check; is not negligence. A bank, upon whom certified checks were drawn, being insolvent and in the course of liquidation when the checks were delivered to the payee, no default, misconduct or negligence could be imputed to him for not going through the useless form of presenting them and giving notice of dishonor, as the drawer lost no rights by his failure to do so and the insolvent bank’s liability was not changed thereby.
    7. Banks and banking, § 131

      —what is effect of certification of checks. The fact that the certification of checks operated as an assignment pro tanto of the drawer’s account, did not prevent the payee from refusing to accept the assignment in his favor and the restoring of the drawer’s right to a claim against the bank, which had become insolvent before the checks were received by the payee.
    8. Banks and banking, § 130

      —when payee not estopped from denying receipt of checks before insolvency of bank. In a suit on the common counts for money had and received, to which defendant pleaded payment by means of certified checks, which were mailed to plaintiff at his place of employment, plaintiff was not estopped from denying receipt of the checks until they actually came into his hands upon his return after a protracted illness, at which time the bank upon which they were drawn was insolvent and in the course of liquidation.
    Appeal from the Superior Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Reversed and judgment here with finding of fact.
    Opinion filed March 18, 1919.
    Statement by the Court, The declaration is on the common counts for money had and received. Defendants filed the plea of general issue and a special plea of payment. On joinder of issues the case was tried without a jury and the court’s finding and judgment were against plaintiff who has appealed.
    The facts are undisputed and as follows: In 1913 and 1914, both plaintiff and defendants had offices in Chicago. Defendants were underwriting the sale of mortgage bonds of the Grand Bapids & Northwestern Railroad Company, on the basis that $1,000 of the bonds would carry $500 of the company’s fully paid common capital stock. Plaintiff was a practicing lawyer and employed as an assistant attorney in the offices of a law firm to whose business he devoted practically his entire time, having very little business of his own. The stationery used in his private matters and his correspondence with defendants on the subject of the contract hereinafter referred to, gave his address at the offices of said firm.
    In the year 1913 he entered into a subscription contract with defendants agreeing to pay them or the railroad company $5,000 in instalments whereby he would become entitled to a certain number of the railroad’s mortgage bonds and accompanying stock as aforesaid on paying the last instalment. On April 8, 1914, he received a letter from defendants, mailed and addressed to his office, notifying him that the first instalment would be payable on April 15, 19.14. On that date he sent defendants his check for $1,750 (which was in excess of the instalment due), and for which he received a receipt crediting such payment on his subscription account. The check was cashed April 17, 1914.
    From May 28 to July 2, 1914, he was continuously absent from his office and confined to his house on account of illness. While he was so confined an intimate friend took it upon himself, without plaintiff’s request, to go over to plaintiff’s office about once a week and gather up the mail he found on his desk and take it to Tiim- On plaintiff’s return to the office July 2nd, he found in a drawer of his desk a package of mail (supposed to be one delivery), in which was a letter from defendants addressed to him at his office dated June 1, 1914, and reading as follows:
    “Owing to the inability of the Executive Committee of the Grand Rapids & Northwestern Railroad to definitely approve and ratify the construction contracts, etc., by June 1, 1914, your first instalment is herewith returned to you, accompanied by our check with interest at five per cent.
    “The Board of Directors expect to have a meeting in the near future to determine what future action should be taken with reference to the project.
    Very truly yours,
    8. M. Barling & Company.”
    The letter contained two certified checks of the same date payable to his order and drawn on the La Salle Street Trust & 'Savings Bank, one for $1,750 and the other for accrued interest thereon. The bank on which they were drawn became insolvent on June 12, 1914, up to which time it was honoring checks drawn thereon, and after which it remained insolvent and in the hands of a receiver. Plaintiff indorsed the checks and sent a messenger to his bank to deposit them, and because of the insolvency of the bank on which they were drawn his bank did not accept them for deposit. When the messenger returned with them plaintiff observed for the first time that they were drawn on the insolvent bank. On July 7th he wrote defendants advising them that on account of his illness he did not get their letter containing the checks until July 2nd, and a few days later had a personal interview with one of defendants’ firm respecting their liability, and offered to return the checks. Defendants did not answer his letters, refused to receive the checks and disclaimed liability.
    Plaintiff always stood ready to perform1 his part of the contract, and had no notice of its abrogation until he read said letter on July 2nd. The contract contained no provision implying a right to abrogate it or that would lead plaintiff reasonably to expect or anticipate such abrogation or a return of his money.
    It was not shown when or how the letter containing the checks was placed in the drawer of plaintiff’s desk, but he testified that he supposed it was put there by the firm’s office boy, and it was presumably left at the office by the mail carrier in the due course of mail about June 2nd. Plaintiff had no employees in the office but occasionally made use of the firm’s.
    Frederick Z. Marx and Thomas H. Stevenson, pro se, for appellant.
    Willard C. MoNitt and Joseph A. Bates, for appellees.

      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 Barnes

delivered the opinion of the court.

The question is whether under the foregoing facts and circumstances the checks constituted payment of the indebtedness so incurred.

It is appellees’ and was the trial court’s theory, that under the foregoing circumstances there was a constructive delivery of the checks to plaintiff when they were received at his office, and that he was chargeable with the duty of presenting them for payment with reasonable diligence after such delivery, and, therefore, with any loss consequent upon the neglect so to present them. Citing the Negotiable Instruments Act governing checks, appellees argue that the certification of the checks operated under sections 186 and 188 (J. & A. ¶¶7826, 7828), as a pro tanto assignment of their deposit in said bank, that the transfer of their possession of the checks by mailing them to plaintiff’s office constituted delivery of them within the meaning of section 190 (J. & A. ¶ 7830), and that by sections 181 and 185 (J. & A. ¶¶ 7821, 7825), they were discharged to the extent of any loss on the checks by plaintiff’s delay to present them and give notice of dishonor.

Whatever application these provisions of the statute might have, had the checks been sent to pay a previously recognized indebtedness, we need not inquire. The important fact is that the indebtedness was created without plaintiff’s knowledge, expectation or consent. It is clear that the damages ensuing from the abrogation of the contract being unliquidated, they could not be adjusted and determined by the ex parte action of defendants. Plaintiff had the right to determine whether he would accept the amount of the checks as the measure of his damages or elect to stand upon his contract, and not until he received notice of the conditions out of which the right arose could there be occasion for its exercise. He received neither actual nor constructive notice until July 2nd. Not before then did he owe defendants any duty with respect to his contract or the checks. "While he then manifested an election to receive the cheeks as the measure of his damages, he did not agree to accept them as payment, and no authorities need be cited in support of the familiar common-law rule, applicable in this State, that a check ordinarily does not constitute payment of an indebtedness unless it is accepted as such by the creditor. (30 Cyc. 1181, 1194.)

In its final analysis appellees’ argument seems to be that plaintiff was estopped by reason of some form of negligence from denying the claim of payment,—negligence either in making no provision for prompt attention to his mail, or in not presenting the checks and giving notice of dishonor after they actually came into his hands.

Unless he owed them some special duty to have his mail looked after in his absence, there was no negligence for his inattention thereto. As above shown, his contractual relations with defendants raised no such duty before he received actual notice of the abrogation of the contract, and we fail to see in the circumstances anything upon which such a duty can be predicated. If not, then the checks cannot be deemed to have been delivered to him, until he actually received them.

And we fail to see any ground for imputing negligence after the checks were so delivered and received. The bank then being insolvent and in the course of liquidation, no default, misconduct or negligence could be imputed to him for not going through the useless form of presenting them and giving notice of dishonor. Defendants lost no right from a failure so to do. Nor was the insolvent bank’s liability thereon changed. The fact that the certification of the cheeks operated as a pro tanto assignment of defendants’ account did hot prevent plaintiff from refusing to accept the assignment in his favor and the restoring of defendants’ right to a claim against the insolvent bank.

The circumstances of the case are unusual, if not novel, but so different from those of cases cited by appellees that we need not refer to such cases merely to point out distinguishing features. Somewhat similar, however, is the case of Union Biscuit Co. v. Springfield Grocer Co., cited by appellants and reported in 143 Mo. App. 300, 126 S. W. 996. That was a suit on an open account. The defendant pleaded payment and offered in proof thereof a bank draft indorsed to the plaintiff and mailed to its office, where the letter containing it was wrongfully opened and the draft abstracted by one of plaintiff’s employees who had access to its mail and substituted his name for plaintiff’s on the draft and cashed it as and for his own. The court held not only that there could be no payment under the common-law rule by the taking of the check or draft without an express agreement to take it as payment, but that plaintiff was not estopped by the facts to deny a receipt of the draft.

So in the case at bar, we think the defense of payment was not sustained, and that plaintiff was not es-topped from denying receipt of the checks until they actually came into his hands, assuming that the record is such that the doctrine of estoppel may be invoked. The judgment, therefore, must be reversed and one entered here for $1,750 with interest at 5 per cent from April 17, 1914, the date plaintiff paid his instalment under the contract, making the sum of $2,185.

Reversed with judgment here and finding of fact.

Finding of fact. We find that the checks dated June 1, 1914, sent by appellees Sherburne M. Earling and Harold S. Cook to appellant Thomas H. Stevenson were not accepted by him as payment of the indebtedness sued on and did not constitute payment thereof in whole or in part, and that there is now due from appellees to appellant the sum of $2,185.


author: Mr. Presiding Justice Boggs

text:
    Mary G. Young, Appellant, v. Charles R. Young, Appellee.
    1. Husband and wife, § 264

      —when cruelty shown in suit for separate maintenance. On a bill for separate maintenance without waiving answer under oath and answer denying cruelty, testimony of the complainant concerning her husband’s infatuation for another woman, that he forcibly ejected the complainant from his saloon, corroborated by the husband’s bartender, and her testimony that her husband blackened her eye, corroborated only as to her subsequent appearance, is sufficient to establish cruelty in the absence of contradictory testimony.
    2. Marriage, §. 13

      —when common-law shown. Undisputed evidence of open cohabitation as man and wife for 12 years, including 2 years spent with the husband’s parents, that the wife was active and energetic in helping the husband to build his fortune, that husband and wife joined as such in the execution of deeds and mortgages, with testimony by the wife of a common-law contract in the presence of witnesses, contradicted by the husband, held sufficient to show a common-law marriage.
    3. Husband and wife, § 257

      —what need not he pleaded in answer to hill for separate maintenance. A defendant in a suit for separate maintenance may show a previous marriage of the complainant on cross-examination without pleading it in his answer.
    4. Death, § 2

      —when presumption of raised from absence. In a suit for separate maintenance, testimony by the wife that her previous husband left her in St. Louis 8 years before her present common-law marriage, and that she never heard" of him after that, is sufficient to establish capacity for the second marriage under the Missouri statute, raising a presumption of death upon 7 years’ absence.
    5. Marriage, § 26

      —when not shown to be invalid because of existence of living, undivorced husband. In a suit for separate maintenance, testimony of the defendant’s witnesses identifying the complainant’s previous husband as a present resident in Illinois, with a wife and several grown children, will not render the second marriage invalid as it is presumed that the former husband obtained a divorce or that the identity is mistaken and the presumption of death has attached.
    6. Husband and wife, § 267

      —when decree fixing alimony and solicitor’s fees improver on appeal. The Appellate Court cannot enter a decree fixing alimony and solicitor’s fees on reversing a decree dismissing a bill for separate maintenance for want of equity.
    Appeal from the Circuit Court of Madison county; the Hon. Louis Bebnreutbr, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed and remanded.
    Opinion filed November 1, 1918.
    Rehearing denied March 26, 1919.
    J. M. Bandy, for appellant.
    D. G. Williamson and Mark Meyerstein, 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 Boggs

delivered the opinion of the court.

Appellant filed a bill in the Circuit Court of Madison county at the April term, 1917, alleging her marriage to appellee in March, 1900, and that at various times specified in the bill, appellee beat, choked and slapped her, by means whereof she was living separate and apart from appellee without her fault, and praying for a decree of separate maintenance. Said bill did not waive the answer under oath. An answer under oath was filed by appellee denying that he was guilty of the acts of cruelty alleged in appellant’s bill. A replication was filed to said answer. The cause was heard by the chancellor in open court, a finding was made for appellee and appellant’s bill was dismissed for want of equity. To reverse said decree this appeal is prosecuted.

So far as the charge of cruelty is concerned, the evidence in the record is amply sufficient to support the allegations of the bill. Appellant testified that she and her husband lived together as husband and wife without trouble of any character until the year 1912, when another woman appeared on the scene with whom the record discloses appellee became infatuated. On one occasion appellant entered appellee’s saloon and found appellee and this woman sitting at a wine table and on appellant remonstrating with appellee for his conduct, the woman in question blew smoke in appellant’s face; and appellee violently took hold of appellant and excluded her from the saloon. Appellant is corroborated by the bartender for appellee with reference to appellee ’s relation with this woman and with the manner in which appellee excluded her from the saloon. Appellant testified with reference to her husband blacking her eye, and while she is not corroborated as to the violence that occasioned the discoloration of her eye, she is corroborated to the extent that, soon after the transaction complained of, others saw the blackened condition of her eye. In fact the only evidence in the record disputing the acts of cruelty is the sworn answer of appellee. When on the stand testifying he did not deny the acts of cruelty or in any way refer to them.

The argument of counsel, both those representing appellant as well as those representing appellee, is largely directed to the question as to whether or not appellant and appellee had entered into and sustained the relation of husband and wife. The undisputed evidence in the record discloses that from the year 1900 up until the year 1912, appellee and appellant lived together as husband and wife; that they were known by the people with whom they associated and did business as husband and wife. They lived for some year or two with the parents of appellee in the relation of husband and wife in the State of Michigan. The record further discloses that appellant was quite successful in his business adventures, he at one time running a saloon and boarding house which proved to.be quite profitable. Afterwards he purchased a tract of land and built a dance hall and ran that in connection with his saloon and boarding house. At the time this suit was instituted he had accumulated property aggregating in value some $40,000 or $50,000 dollars. The record also discloses that practically all of this property was accumulated during the time that appellee and appellant lived together. Appellant was active and energetic in assisting appellee and looked after and took charge of the rooming and boarding house and in every way, so far as the record discloses, performed the duties that are ordinarily performed by a wife. The record also, disclosed that appellant joined with appellee, as his wife, in the execution of various mortgages, one of which said mortgages was offered in evidence by appellee on the trial of this cause, presumably to show that the property he owned was incumbered.

Appellant insists that some time during the month of March, 1900, she and appellee entered into a common-law marriage and at once assumed the relation of husband and wife in keeping therewith. On the other hand, appellee insists that beginning with the year 1897 he and appellant were having illicit intercourse and that they lived in an open state of adultery from about that time until the year 1912, when appellant ceased living with appellee; that at no time was there any marriage ceremony between them and that there was no common-law marriage at any time, and that the relations of appellee and appellant were recognized by them to be illicit. In addition to the undisputed facts above set forth with reference to the relations sustained by appellee and appellant, during the 12 years in which they lived together, appellant testified that she became acquainted with appellee about the year 1898; that she kept company with him from that time on until March, 1900; that in 1899 he gave her an engagement ring engraved “C. R. T. to M. G. L. Jan. 1, 1899”; that in March, 1900, she and appellee visited the home of some people by the name of Riddell living in St. Louis, Missouri, and that while there and in the presence of Mr. and Mrs. Riddell and son, and one Joe Lash, a brother of appellant, she and appellee entered into a marriage contract. Appellant testified that the following conversation took place between them: Appellee said to appellant, “I love you dearly, Mary,” to which appellant replied, “Well Charlie, you do not love me any more than I love you,” to which appellee then replied, “Well then we will be man and wife. T on are my wife.” Appellant said, “I take you for my husband. ’ ’ Appellee denies that such transaction took place and strenuously contends that if this conversation was ever had or this contract was entered into, the Riddells or appellant’s brother should have been called to corroborate her statement in reference thereto.

The evidence in the record, however, disclose that appellant had lost track of the Riddells. There is, however, no explanation in the record as to why she had not called her brother. It must be remembered, however, that this transaction was alleged to have taken place some 17 years prior to the trial. Appellee also knew the Riddells and he could have called them to dispute appellant if their whereabouts was known. Counsel for appellee practically concede in their argument that the evidence with reference to the relations that existed between appellant and appellee was amply sufficient if standing alone to warrant a court in finding a common-law marriage. It is, however, contended by appellee that appellant was married to a man by the name of John Getz in 1892, and that she was never divorced from him and that this man is still living and lives at Venice, Blinois. Appellant on cross-examination admitted her marriage with Getz and says it took place in 1892; that she met Getz some 3 days before her marriage while on an excursion; that she and Getz liver together as husband and wife some 3 days and that at the end of the 3 days Getz left her, stating that the doctor had advised him he must go to Colorado on account of his health; that she never saw or heard tell of him after that time, appellant at this time being 16 years of age. Appellee over the objections of appellant’s counsel offered evidence tending to show that there was a John Getz living at Venice, Blinois, and one witness on behalf of appellee identified John Getz living at Venice as the John Getz who married appellant in 1892. Appellee also offered evidence tending to show that about the year 1896 appellant and Getz were living at the home of the Riddells as husband and wife. This testimony was objected to by appellant on the ground that the answer to the bill did not raise the issue that appellant had a husband living at the time of the purported marriage between appellee and appellant. We think, however, that so far as the marriage of appellant with Getz was shown by the cross-examination of appellant, it was proper, even though no allegation of that kind was made in appellee’s answer.

The witness who testified that the John Getz who lived at Venice, Blinois, was the same person who married appellant in 1892, testified that Getz ceased living with appellant prior to the cyclone which occurred in St. Louis about the year 1896, so that if his testimony is correct with reference to the time that Getz left appellant, then the testimony of these other witnesses, to the effect that appellant and Getz were living together at Riddells at the time of the cyclone in 1896, is not true. In order to determine whether or not there was a marriage entered into between appellant and appellee it will be necessary to consider the law governing the presumptions arising from facts tending to show that persons are sustaining the relation of husband and wife and also to consider the law with reference to the presumption of death where a party has not been heard from for a period of 7 years or more. The laws of the State of Missouri were pleaded by appellant and were offered in evidence to the effect that a common-law marriage in the State of Missouri is valid. State v. Bittick, 103 Mo. 190; Topper v. Ferry, 197 Mo. 546; Snuffer v. Karr, 197 Mo. 182. Common-law marriages in Illinois were valid prior to the year 1905 Heymann v. Heymann, 218 Ill. 636; Herald v. Moker, 257 Ill. 27.

It is further provided by the statutes of the State of Missouri: “That if any person who shall have resided in this State go from and do not return to this State for seven successive years, he shall be presumed to be dead in any case wherein his death shall come in question, unless proof be made that he was alive within that time.” Rev. St. Mo. 1899, vol. 1, page 786, sec. 3144; Rev. St. Mo. 1909, sec. 6340; Duff v. Duff, 156 Mo. App. 247.

Counsel for appellee practically admit that the law is as above stated, but contend that the preponderance of the evidence is to the effect that Getz, the husband of appellant, was not dead, but in fact is living and that his home is in Venice, Illinois. In answer thereto, counsel for appellant calls attention to the fact that the record discloses that this man Getz who lives at Venice, Illinois, has a wife and several children, the oldest of whom is some 23 or 24 years of age, and that he was in the draft of June 5, 1917. Even though it be admitted that this John Getz was in fact the John Getz that appellant married in 1892, it would be presumed that Getz had obtained a divorce and was legally qualified to enter into the marriage relation with the woman with whom he is now living as his wife, unless there was evidence to the contrary. Johnson v. Johnson, 114 Ill. 611; Coal Run Coal Co. v. Jones, 127 Ill. 379.

In Johnson v. Johnson, supra, at page 617, the court says: “But if the law raises the presumption that the former husband was alive at the date of the last marriage, from the fact that 7 years had not then elapsed since the last knowledge of him, it also, in the absence of proof to the contrary, presumes that the parties in contracting such marriage, and in subsequently cohabiting, were innocent of immorality or crime, and that there was no legal impediment to its consummation. When a marriage is shown, in fact, the law raises a strong presumption in favor of its legality, and the burden is with the party objecting to its validity to prove that it is not valid. (Bishop on Marriage and Divorce, secs. 457, 458.) Presumptions of this class are not conclusive, but are sufficient, in general, to shift the burden of proof. (1 Greenleaf on Evidence, secs. 33-35.) These presumptions of innocence, and of the validity of the marriage, conflict with the presumption of life, and if neither presumption is aided by proof of facts or circumstances co-operating with it, the presumption of the validity of the marriage has generally been held to be the stronger, and to prevail over the presumption of the continuance of the particular life, and this is so held although the time elapsing between the last knowledge of the former husband and the second marriage is much less than 7 years.”

In Coal Run Coal Co. v. Jones, supra, page 386, the court says: “The second marriage being shown in fact, the law raises a strong presumption in favor of its legality, which we do not regard as overcome by mere proof of a prior marriage, and that the first wife had not obtained a divorce. (See Johnson v. Jolvnson, 114 Ill. 617.) The husband might have obtained such divorce and left him free to contract the second marriage.”

All of the evidence with reference to there being a John Getz living at Venice, Illinois, was given by witnesses testifying on behalf of appellee and practically, if not all of these witnesses, testified that this John Getz was living with his wife and had several children as above stated so that the fact of the marriage of John Getz at this time is furnished by the evidence of appellee. The proof fails to satisfy our minds that the John Getz who is living at Venice, Illinois, is the same John Getz to whom appellant was married. The only witness that undertakes to testify thereto shows by his testimony that it is of a very unsatisfactory character. He testified that this man Getz left appellant prior to the St. Louis cyclone and that he was gone something like a year, and on cross-examination he would not undertake to say he was not gone for some 3 or 4 years.

We think, therefore, that the record wholly fails to show that at the time appellant claims she and appellee entered into the marriage relations and at the time that the undisputed facts in the record show that these parties in fact did live as husband and wife (so far as the outside world is concerned) that she, appellant, was in a position to enter into such relation. If she is correct in her contention that her husband had been gone for 8 years prior to her entering into the marriage relation with appellee, then under the laws of the State of Missouri her husband was presumed to be dead, or if the John Getz who lives at Venice, Hlinois, and who is now married and with a family of some 4 or 5 children and with a son some 23 or 24 years old, is the same John Getz that appellant was married to in 1892, then the law will presume, in the absence of proof, that he had been divorced from appellant at the time he entered into the marriage relations with his present wife, rather than to presume that he is guilty of bigamy and that his children are illegitimate.

Appellee insists, however, that the record shows that there was no divorce of the marriage relation of appellant and Getz and that the records of the courts of St. Louis have been searched and no divorce proceeding was found. It would not follow from this evidence that there had been no divorce, for the evidence shows that G-etz was gone for at least one year from St. Louis after he ceased living with appellant and a divorce could have been obtained in another jurisdiction.

In view of the conclusive character of the evidence in the record tending to show the marriage relation between appellant and appellee, and in view of the fact that the only evidence to the contrary is the answer and testimony of appellee, we feel that the finding of the chancellor in this case is against the manifest weight of the evidence and that the judgment and decree should be reversed and the cause remanded.

Counsel for appellant insist that this court enter a decree fixing alimony and solicitor’s fees based on the evidence in the record. We do not agree with counsel for appellant that this is the proper practice. In our opinion the judgment of the court should be reversed and the cause remanded with directions to the court to enter a decree of separate maintenance and leave it to that court to fix the amount of alimony and solicitor’s fees.

For the reasons above set forth the judgment and decree of the trial court will be reversed and the cause will be remanded for further proceedings consistent with the findings herein.

Reversed cmd remcmded.


author: Mr. Justice McBride

text:
    Fred P. Watson and Ed Crossen, Plaintiffs in Error, v. the Concordia Fire Insurance Company of Milwaukee et al., Defendants in Error.
    1. Reformation of instruments, § 21

      —when contract not reformed because of mistake. Equity will not reform a contract where the mistake is one as to the legal effect of the words used.
    2. Insurance, § 118

      —when contract not reformed because of mistake. The rule that permits of liberal construction against insurance companies will not justify the making of a new contract, in a suit for reformation, where the parties were mutually mistaken as to the legal effect of the words used.
    3. Insurance, § 118

      —when fire policy not reformed to protect purchaser on foreclosure and second mortgagee. Equity will not reform a fire insurance contract so as to afford protection to a purchaser on foreclosure and a second mortgagee with a right of redemption, where the parties submitted the policy to the insurance company after foreclosure and the company wrote merely the fact that the complainants had acquired title under foreclosure without promising indemnity, and the policy as annotated was returned and accepted by the complainants under a mistake as to its legal effect.
    4. Insurance—when unearned fire premium insufficient consideration for promise to indemnify purchaser under foreclosure. The unearned premium on a fire insurance policy would not be sufficient consideration for a promise by the insurance company to indemnify a purchaser under foreclosure unless the previously insured mortgagor, still having his right of redemption, consented thereto.
    Error to the Circuit Court of Marion county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed November 1, 1918.
    Rehearing denied March 26, 1919.
    Noleman & Smith, for plaintiffs in error.
    Edward 0. Craig, Donald B. Craig, James W. Craig, Jr. and Fred H. Kelly, for defendant in error Concordia Fire Ins. Co. of Milwaukee.

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

   Mr. Justice McBride

delivered the opinion of the court.

The plaintiffs in error, hereinafter called plaintiffs, filed a bill in the Marion County Circuit Court seeking to reform a contract of insurance, to which bill the defendant in error, The Concordia Fire Insurance Company of Milwaukee, hereinafter called defendant, filed a demurrer. Upon a hearing the court sustained the demurrer and the plaintiffs elected to stand by their bill, and thereupon the court dismissed the bill for want of equity, to reverse which decree this writ of error is prosecuted.

It appears from the allegations of the bill that on June 27, 1914, the property described in the bill was then owned by W. A. Mays and Madge Mays, and on that date they executed a mortgage upon said premises to John McNeil as security for $250, and thereafter on January 5, 1915, they conveyed the property to H. C. Perryman and E. J. Perryman, subject to said mortgage. On January 11, 1915, the said Perrymans procured insurance from the defendant against loss by fire to the amount of $650, said policy to expire on January 11, 1918. That thereafter the said Perry-mans executed a second mortgage to plaintiff Ed Crossen to secure $250, and agreed in said mortgage to keep the buildings insured for the benefit of the mortgages. That the defendant attached a rider to said policy issued to the Perrymans, providing that the loss, if any, should be payable to John McNeil, holder of the first mortgage, and Ed Crossen, the holder of the second mortgage, as their interests might appear. Thereafter the said property was slightly damaged by fire and the loss was paid under said policy, and after deducting such loss left the policy remaining in force to the amount of $573.50. Perry-mans made default in the payment of said mortgage to John McNeil and a bill was filed by him to foreclose the mortgage. Ed Crossen was made a party and by answer set np Ms mortgage. A decree of foreclosure was entered in favor of the said John McNeil and the said Ed Crossen for the amounts due on their respective mortgages. The decree provided that the McNeil mortgage should be paid in full and the Crossen mortgage be next paid. On December 4,1915, pursuant to said decree, the property was sold by the master in chancery and was bid in by Fred P. Watson for the sum of $337. The McNeil mortgage was paid in full and a deficiency decree was entered against the said Perrymans in favor of Crossen for $221.74. A receiver was appointed to collect the rents. On March 27, 1916, the dwelling' house situated upon said premises insured by the said policy was totally destroyed by fire while said policy was in force, and resulted in a loss and damage to an amount in excess of the face of the policy. The bill then alleges that soon after the said property was sold at said foreclosure sale and after the deficiency decree had been entered and prior to said fire, the plaintiffs applied to the defendant for insurance against loss by fire covering their respective interests in said property and offered to pay the premium and charges of defendant therefor. That plaintiffs informed the agent of defendant of the facts hereinabove set forth concerning the title to said property and the mortgages thereon, which it is alleged the said company then and there had full knowledge. It is also alleged that defendant was advised that Fred P. Watson was interested in said property as owner of said certificate of purchase and Crossen was interested by reason of his deficiency decree and having a right to redeem from said foreclosure sale, and was further interested by virtue of his mortgage aforesaid. It is further alleged that the defendant by its agent advised the plaintiffs that it would not be necessary or proper to issue a new policy to cover the interests of plaintiffs, but that said policy then in force could and would be properly made to extend to and cover such an interest by an indorsement thereon, and that thereupon the said plaintiffs agreed to pay whatever premium or charge the said insurance company should make or demand for such insurance but left the details and manner in which said insurance should be written and the form of the policy or indorsement thereon to the judgment and direction of said insurance company; and left it free to determine whether a new policy should be written or an indorsement placed upon and attached to said policy. That the said defendant company then and there agreed and promised your orators that in consideration of the unearned premiums already paid for said policy by said H. C. Perryman and E. J. Perryman, said insurance would be written and placed by it so as to protect the respective interests of plaintiffs. That the defendant company, in compliance with its agreement to insure the interests of plaintiffs in said company, elected not to write a new policy but to make an indorsement on said, policy then in force and, for the purpose and with the intention of insuring plaintiffs ’ interests in said policy, did attach to said policy the follpwing indorsement, to wit, “It is agreed and understood that Fred P. Watson acquired title to property insured under policy No. 21471, by being owner of master’s certificate of purchase,” and that by said indorsement intended and understood that it was thereby insuring the interests of plaintiffs in said property to the amount of the face of said policy less the loss theretofore paid. That the defendant then and there delivered said policy of insurance to plaintiffs and assured them that by said indorsement it had insured plaintiffs’ interests in said property according to its agreement so to do, and plaintiffs acting and relying upon said agreement to insure their respective interests in said property as aforesaid, and the promise and assurance of said insurance company that by said indorsement it had so insured said interests, they accepted said policy and retained the same believing that such representations of said insurance company were true and that said policy had been extended by said indorsement so as to cover and insure the interests of plaintiffs therein as agreed and represented by said insurance company, and that plaintiffs relied solely upon the judgment and knowledge of said insurance company to write said policy accordingly, or to place the proper indorsement thereon, and fully believed that said policy and indorsement insured their respective interests in said property as agreed upon. It is further alleged in said bill that in consideration of said unearned premium, and in further consideration of plaintiffs ’ promises to pay any further proper charges therefor, the said insurance company did agree to insure your orators’ respective interests in said property. That said policy as written and the • said indorsement thereon do not set forth the contract and agreement of your orators with the said defendant, and that the agent of the said company, duly appointed and authorized to act for it in that behalf, by mistake of the effect and legal meaning of the language used, made said indorsement, believing that said insurance company by said indorsement had made said policy extend to and by it, had insured the respective interests in said property of plaintiffs, and by said indorsement intended so to do, and plaintiffs believing that said policy had been properly written, and that said indorsement was sufficient to express their agreement with said insurance company, and intended said insurance to cover and insure their respective interests in said property, accepted the same under such belief and mistake as to its legal effect. The bill then alleges that said policy should be reformed and that said indorsement, by mutual mistake of fact by the duly authorized agent and plaintiffs, fails to express their agreement as to the insurance of said company of the interests of plaintiffs in said property. The bill then alleges that the defendant denies liability under said contract, and that proper proofs of loss were made.

The bill alleges that the said Perrymans and others claim to have some interest in said real estate, the exact nature and character of which is unknown to the plaintiffs.

To this bill the defendant filed a demurrer setting forth a misjoinder and nonjoinder of both parties, plaintiffs and defendant; that the bill does not sufficiently allege the terms of supposed real agreement, nor does it show wherein the writing sought to be reformed failed to embody the real agreement. It also alleges as a cause of demurrer that the allegations of the bill clearly show that reformation is prayed for on account of a mistake of law and not on account of a mistake of fact. The court upon a hearing sustained the demurrer. The plaintiffs elected to stand by their bill and the bill was dismissed for want of equity.

It is urged by the plaintiffs that while several causes of demurrer were interposed that the only cause argued was, that the allegations of the bill showed that reformation is prayed on account of a mistake of law and not on account of a mistake of fact. This was the principal question argued by counsel for plaintiffs and defendant, and, as we view it, is the only one necessary to be considered in the determination of this cause.

It appears from the record that after this property had been sold by the master in chancery and purchased by plaintiff Watson, and he had received a certificate of purchase therefor, and before the fire that the plaintiffs requested of the defendant insurance to protect their interest in this property, and that the agent of the defendant advised them that it was not necessary to issue a new policy but that all that was necessary to be done was to make an indorsement upon the policy that had been issued to the Perrymans. Thereupon the agent made the following indorsement upon the policy, to wit: “It is agreed and understood that Fred P. Watson acquired title to property insured under policy No. 21471, by being owner1 of master certificate of purchase.”

It also appears from the bill that by the said indorsement it was intended and understood that it was thereby insuring the interests of plaintiffs in said property; that the policy was then and there delivered to the plaintiffs by the defendant and that the plaintiffs relying upon the agreement of defendant to insure their respective interests and the assurance of defendant that by said indorsement it had so insured their interests, that they accepted said policy and retained the same believing that said representations of said insurance company were true and that said policy had been extended by said indorsement so as to cover and insure the interests of the orators therein, as agreed and represented by said insurance company; and that plaintiffs relied solely upon the judgment and knowledge of the insurance company to write said policy accordingly, and believed that by said indorsement their respective interests were insured as agreed upon.

It is further alleged in said bill: “That the agent of the said insurance company, duly appointed and authorized to act for it in that behalf, by mistake of the effect and legal meaning of the language used, made said indorsement, believing that said insurance company by said indorsement had made said policy extend to and by it, had insured the respective interests in said property of your orators, and by said indorsement intended so to do, and your orators believing that said policy had been properly written and that said indorsement was sufficient to express their agreement with said insurance company, and extend said insurance to cover and insure their respective interests in said property, accepted the same under such belief and mistake as to its legal effect.”

It seems to us that from a careful reading of this bill that by it the plaintiffs seek to reform a mistake in the making of the contract, wherein the parties. notwithstanding they knew the language used to express their contract, were mistaken as to the legal effect of the language used. “This indorsement, as a matter of fact, did not express the agreement, but it was given to the plaintiffs in error with the representation and assurance on the part of the agent of the insurance company that in legal effect it did express their agreement, and that it was the only proper way to insure their interests in this property. It was accepted from the insurance company on the direct representations that the effect of the indorsement was to express the agreement of the parties concerning the insurance of their interests in said property.” And again, counsel for plaintiffs in their brief say: “It will be contended further that there can be no reformation in this case because it will be argued that it was merely a mistake of the legal effect of the language used in the indorsement. This contention, however, is not supported by any authority. ’ ’ Counsel then in support of their position cite several cases from other States, and some cases from this State, which apparently support their contention that where there has been a mutual mistake of the parties as to the legal effect of a contract that it may be reformed in equity.

As we view it, the mistake made by both of the parties was as to the legal effect of the language used, and the only question to be considered is, “Did the court have the right to reform the instrument because the parties were mistaken as to the legal effect of the language used?” Counsel for plaintiffs rely chiefly upon the case of Dinwiddie v. Self, 145 Ill. 290, in which opinion the language claimed by counsel as sustaining this view is found, and it is true the court there says: “If, on the other hand, after making an agreement, in the process of reducing it to a written form, the instrument, by means of a mistake of law, fails to express the contract which the parties actually entered into, equity will interfere with the appropriate relief, either by way of defense to its enforcement, or by cancellation, or by reformation, to the same extent as if the failure of the writing to express the real contract was caused by a mistake of fact.” In view of later decisions of the Supreme Court, we are constrained to believe that this is not of controlling authority upon this question. That was- a case wherein Mary J. Self contracted with Dinwiddie for 220 acres of land and paid the purchase price in full and directed her brother Samuel Black to close up the purchase and gave him instructions to have the land conveyed to her absolutely in fee as her sole property. That the brother under the directions of her father caused the land to be conveyed to “Mary J. Self and her bodily, heirs.” This was not known to Mrs. Self and was not authorized by her and she did not receive the deed for some time thereafter, and that upon learning of the limitation that had been placed in the deed she instituted a suit to correct the mistake. As we view it, the mistake was not one of law but one of fact. The brother and father had caused to be inserted in the deed words that were not in the contract and the court in that case says that this was a fraud upon the rights of Mrs. Self. This was not a mistake of Mrs. Self as to the legal effect that these words might have in the deed for she knew nothing about it. It was the inserting of words in the deed that she had not agreed to, and in view of the later holdings of the Supreme Court we do not believe that it was intended by this decision to lay down the doctrine that a mistake as to the legal effect of an instrument could be reformed in a court of equity. In the case of Tilton v. Fairmount Lodge, 244 Ill. 617, wherein it was sought to reform a deed, in which a 99-year lease was executed, to make the conveyance, instead of a deed as should have been made, there was no dispute in this case but what the parties understood the kind of an instrument they were receiving, but were mutually mistaken as to the legal effect of the instrument. This question was squarely presented in this case, and the court in passing upon that question says: “They each understood fully what language was to he contained in the instrument. It is true, the legal effect of that language is different from what they understood it to be or from what they intended. This cannot be said, in any sense, to be a mistake of fact. It was a mistake of law as to the legal effect of the language used and adopted by the parties and is not such a mistake as equity will relieve against. The general rule is that a mistake of law, pure and simple, is not adequate ground for relief. (Pomeroy’s Eq. Jur., 3rd Ed., sec. 842.) £If the words are written as the parties intended they should be written, or supposed they were written when they signed the contract, no matter how much they may be mistaken as to the meaning of those words, no relief can be granted, either at law or in equity. The construction of words is a matter of law; the insertion of words is a matter of fact. It is for mistakes of fact alone, that contracts may be reformed.’ ” It will be observed that in this opinion the court says that the insertion of words not authorized constitutes a mistake of fact, and the Dinwiddle case, above referred to, was of that character. It seems to us that the case of Tilton v. Fairmount Lodge, supra, settles the question conclusively here in controversy. This doctrine is fully sustained by the case of Hackemack v. Wiebrock, 71 Ill. App. 173, and numerous other cases. We believe that the decisions of the courts of Illinois are almost uniform, except as above noted, in holding that where the mistake is one of legal effect that it cannot be corrected in a court of equity. Wood v. Price, 46 Ill. 439; Goltra v. Sanasack, 53 Ill. 456; Fowler v. Black, 136 Ill. 363; Tilton v. Fairmount Lodge, supra.

It is said by counsel for plaintiffs that a different rule applies to insurance companies, and an authority in support of this is cited from a decision of the Iowa courts. We do not understand that in Illinois there can "be any difference between a mistake in an insurance contract and other contracts. An insurance policy will be liberally construed in favor of the assured, but construction will not make a new contract for the parties. Schuermann v. Dwelling House Ins. Co., 161 Ill. 437. The language here used and indorsed upon the back of this policy did not constitute any contract at all. It was only a recitation of the fact that Watson had become the purchaser of the certificate.

It is said by counsel for plaintiffs that under the law the plaintiffs would have a right of action upon the contract independent of the written memoranda. If this be true, then it seems to us that their action would be at law, and there would be no need of reformation or conflict of interests as would require the case to be brought into a court of equity. If the plaintiffs had such a contract with the defendant as to protect their respective interests in the property, and they had a contract as contended, then proof could be made of their interests without calling upon a court of chancery.

We are also of the opinion that the consideration alleged in this bill, to wit, the unearned premium upon the policy owned by the Perrymans, would not be a sufficient consideration unless the Perrymans consented that it should become a consideration, as they were still as much interested in the property as Crossen was, as they also had the right to redeem from this sale, and there is no allegation in the bill of the Perry-man’s assent to this agreement.

Criticism is made by counsel, of the insurance company for not in good faith carrying out its agreement with the plaintiffs, and while it may be true that the" insurance company could have done so, yet when the matter is presented for our consideration we must determine their rights according to the laws governing such cases.

We are of the opinion that the court did not err in sustaining the demurrer to plaintiffs’ bill, and the decree of the lower court is affirmed.

Affirmed.


author: Mr. Presiding Justice Higbee

text:
    H. C. Mulcahy, Appellee, v. John A. Milford et al., Appellants.
    1. Action, § 69

      —when objection as to bringing prematurely too late. The general rule is that the objection that an action is prematurely brought cannot be raised first on appeal.
    2. Action, § 69

      —how objection as to bringing prematurely raised. Final argument to the jury to the effect that an action was brought prematurely raises the question sufficiently to permit of its consideration on appeal, where the action was begun in justice court and the pleadings were informal.
    3. Tendee, § 7

      —what is effect of partial. The plea of tender of a part of the amount sued for does not bar the defense that the action was prematurely brought as against the balance of the claim.
    4. Action, § 68

      —when prematurely brought for amount paid under execution and levy. An action for an amount paid under execution and levy is prematurely brought when begun after levy but before payment to the sheriff.
    5. Instructions, § 131

      —when directing verdict erroneous. An instruction directing a verdict for the plaintiff, upon the jury’s finding certain facts, is erroneous in ignoring an affirmative defense interposed.
    Appeal from the Circuit Court of Alexander county; the Hon. William N. Butleb, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed with finding of fact.
    Opinion filed April 12, 1919.
    William S. Dewey and Reed Green, for appellants.
    Alexander Wilson and M. J. O’Shea, for appellee.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

It appears from the statement of facts agreed to by the parties in this case and incorporated in the bill of exceptions that the facts, so far as they need be referred to, were in substance as follows:

On February 16, 1916, John A. Milford and W. E. Milford, partners doing business as Milford Brothers, secured a judgment in the Circuit Court of Alexander county for $205.30 against II. C. Mulcahy. On or about April 18th following, a verbal agreement was entered into by one of the Milfords, on behalf of the Milford Brothers, and Mulcahy, by which certain alfalfa hay belonging to Mulcahy was to be turned over to another party to be by him baled and sold and the proceeds turned over to the Milfords. There was a controversy between the parties as to whether Mulcahy was to be given credit only for the net proceeds of the sale of the hay after deducting costs of baling and marketing or the hay was to be taken by the Mil-fords in full settlement of their claim, and the evidence upon this subject was conflicting. In fact the Milfords actually gave credit to Mulcahy for only the sum of $38.72, balance received from said hay, on said judgment. On May 2, 1916, an execution was issued on said judgment from which nothing was realized. Some time afterwards a second execution was issued which was returned unsatisfied, and still later, on July 9, 1917, a third execution was issued for the full amount of said judgment and costs and placed in the hands of the sheriff of the county, but later the Mil-fords gave the sheriff a statement in writing that there should be a credit of $38.72 given to Mulcahy on the judgment. On July 10, 1917, the sheriff levied on some 50 acres of growing corn belonging to Mulcahy for the full amount of the judgment, interests and costs. On September 22, 1917, Mulcahy brought an action, which was the beginning of this suit, before a justice of the peace of Alexander county against the Milfords for $300, and obtained a judgment by default in his favor. On October 5, 1917, the Milfords appealed the case to the Circuit Court of said county and afterwards the sheriff of the county advertised the growing corn levied on by him, under the third execution above referred to, for sale on December 3, 1917, for the full amount of the judgment. On December 1, 1917, prior to the day fixed for the sale, Muleahy paid to the sheriff the sum of $241.81, the full amount of the judgment, interests and costs. Afterwards on the same day the sheriff paid to the Milfords the sum of $223.98, which was the full amount of the judgment and interest, although the Milfords protested that said amount was more than was due them by $38.72, the amount of the net proceeds of the hay, for which they asked that credit be given to Muleahy. Afterwards on February 13, 1918, before this case came to trial, the Milfords tendered to Muleahy $62.85, being the sum of $38.72, representing the net proceeds of the hay, and $24.13 costs to the date of tender, and that tender has been kept good. On the trial of the case, appellee H. C. Muleahy testified, among other things, that this suit was brought to recover the amount he paid to the sheriff on account of said third execution, and that his damages consisted of the amount so paid, to wit, $241.81. The defendants made no objection to the evidence introduced on behalf of plaintiff until the argument of defendants’ counsel to the jury at the conclusion of the evidence, when such counsel stated, and claimed, that plaintiff had no right to recover from the defendants anything in excess of the amount tendered, for the reason that the plaintiff was basing his right to recover damages upon money paid by him to the sheriff in settlement of said judgment and costs under said third execution, and that this action was prematurely brought by the plaintiff. The jury brought in a verdict in favor of the plaintiff for $241.81, informing the court that said amount included the amount of the tender, whereupon, under instructions of the court not to include the amount of the tender in their verdict, the jury again retired and returned a verdict of $181.87, and for that amount judgment was rendered by the court in favor of appellee Mulcahy. The Milford Brothers, who were the defendants below, have appealed from that judgment to this court.

The most important question for us to determine is whether or not this suit has been prematurely brought, but the above rather full statement of the case has been made in order that all the conditions surrounding the cause might be fully understood. This suit having been commenced before a justice of the peace, there were no written pleadings, and therefore the statement of appellee Mulcahy that the suit was brought to recover the amount of money he paid to the sheriff on account of the third execution, namely, $241.81, and that his damages consisted of the amount he had so paid, which was undisputed, must be taken as a statement of the cause of action. That amount, however, as shown by the stipulation was not paid by appellee until December 1, 1917, whereas this suit for damages was brought on September 22, 1917. Therefore the claimed cause of action did not arise until after the suit was brought. It is, however, insisted by appellee that the objection that the suit was prematurely brought cannot be raised for the first time on appeal, it being in the nature of a dilatory plea, and such would seem to be the general rule of law, though the rule is not without its exceptions. But this question was really raised by counsel for appellants in his final argument, and while better practice would have suggested that the question be brought to the attention of court and jury at an earlier period in the trial, yet this was a trial de novo on appeal from the justice of the peace, in which there were no pleadings and where probably more latitude in procedure is permitted. At any rate, the point was raised in time for counsel for appellee to reply in the concluding argument and the court was advised of it before the motion for new trial was disposed of. Under these circumstances it would appear that the question of the premature bringing of the suit was sufficiently raised in the court below to permit it being taken advantage of in this court.

It is further contended by appellee that the defense that a suit was prematurely brought cannot be maintained after money is tendered and brought into court, and in support of that doctrine he cites 38 Cyc. 176, par. 7, where it is said: “A plea of tender and bringing the money into court is an admission of plaintiff’s cause of action to the extent of the amount alleged to have been tendered and brought into court, and dispenses with the necessity for all that proof which plaintiff would otherwise be required to produce in order to recover the amount brought in, and defendant cannot thereafter object to the form of the action, or that the action was prematurely brought.” In the same section from which the above is quoted it is said: “But tender and payment into court does not admit liability for more than what is tendered or all alleged grounds of recovery, and defendant may interpose any consistent defense, showing that he is not liable in a greater sum.” On page 163 of the same volume it is also said: “A tender is ordinarily an admission of an amount due equal to the sum tendered. * * * But a tender is not an admission of liability beyond the amount tendered, nor does it necessarily admit all the alleged grounds for recovery.” To the same effect is 28 Am. & Eng. Encyc. of Law (2nd Ed.) 15. Appellants have continually admitted that they were indebted to appellee for the net proceeds of the hay sold amounting to $38.72, and to this amount they add the costs accrued up to the time of tender to the amount of $24.13, making a total of $62.85, but they have consistently denied any other liability to appellee. As to the amount of the tender, it is plain that appellants cannot now set up the defense that the suit was prematurely brought, but there appears to us to be no good reason why that defense cannot be availed of against the rest of the debt claimed to be due by appellee, to the same extent and in the same way as any other defense which would tend tó show that appellee was not entitled to recover any more than the amount of the tender. We are of opinion that under the law and the facts this suit was prematurely brought, and such being the case, this action cannot be sustained against appellants for more than the amount of the tender.

Appellants properly criticize the only instruction offered on the part of appellee, which directed a verdict for him in case certain facts were found in his favor by the jury, but entirely ignored the defense made by appellants that this suit was prematurely brought. This was an important matter of defense which had been raised by appellants before the instruction was given and should not have been ignored by the instruction. In Mooney v. City of Chicago, 239 Ill. 414, it is said in reference to an instruction containing a like defect: “The instruction also omitted all reference to an affirmative defense which, if established, would have defeated a recovery, and it is error to give an instruction ignoring matter of defense which there is evidence fairly tending to prove.” For the reasons given, the judgment of the court below will be reversed, and as it is apparent from what is above said that no judgment could be sustained in this case upon the uncontradicted facts, the cause will not be remanded.

Reversed with finding of fact.

Finding of fact to be incorporated in the judgment. We find as an ultimate fact that the cause of action in this case, except as to the amount of the tender, did not arise until after the said suit was brought.


text:
    C. E. Couch, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Justices op the peace, § 304

      —what showing necessary in petition to warrant relief from judgment on certiorari. Relief cannot be obtained against a justice’s judgment by certiorari under Hurd’s Rev. St., chapter 79, paragraphs 186 to 190, without showing facts rather than conclusions in the petition sufficient to establish, (1) that the judgment was not the result of negligence, (2) that it is unjust and erroneous, and (3) lack of opportunity to appeal.

      2. Justices op the peace, § 305

      —when allegation in petition for certiorari is insufficient. An allegation in a petition for certiorari to review a justice’s judgment that the petitioner was not then and is not now indebted to the plaintiff is not a sufficient compliance with the provision of the statute requiring the petitioner to set forth wherein the injustice and error consist.
    3. Justices op the peace, § 304

      —when allegations of petition for certiorari insufficient to overcome constable's return of service on local agent. An allegation in a petition for certiorari to review a justice’s judgment against a railroad company that at the time suit was started and for more than 20 days after judgment the petitioner was not informed and did not know, and had no means of knowing, that such suit was pending because it was not served with summons, verified by the freight claim agent on information and belief and by the local agent, is not sufficient to overcome the presumption raised by the constable’s return of service on the local agent, and hence does not meet the requirements of the statute putting the burden on the petitioner.
    4. Cobpobatious, § 493

      —what insufficient to overcome presumption raised by return of service on agent. The presumption raised by the constable’s return of service of summons on a local railroad agent is not overcome by an affidavit that the company was not informed, because it was not served with summons.
    Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 12, 1919.
    Burton & Burton, for appellant; John GL Brennan, of counsel.

      Harold J. Bandy, for appellee.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

The Illinois Central Railroad Company filed a petition for certiorari in the Circuit Court of Madison county on February 9, 1918. The writ was issued and a transcript of the record of the case of C. E. Couch v. Illinois Central Railroad Company, before S. M. Mueller, justice of the peace, was sent to that court. On April 23,1918, appellee entered his appearance and filed a motion to quash the writ.

It appears from the petition for certiorari that on October 30, 1917, appellee commenced an action against appellant before said justice to recover $300 alleged to be due him from appellant for certain property shipped by appellee from Vergennes, Illinois, to himself at G-ranite City, Illinois, and that on November 5, 1917, the justice rendered judgment against appellant for $275 and costs. The petition also alleges that at the time suit was started, and for more than 20 days after judgment was rendered, appellant was not advised or informed and did not know and had no means of knowing that such suit was pending because it was not served with summons; that at the time suit was started, appellant was not and is not now indebted to appellee and that the judgment is unjust and erroneous.

Appellee moved to quash the writ on the grounds that the record shows a summons was served as required by law; that appellant did know that said suit was pending before the justice prior to the day of trial; that the petition fails to state when appellant learned of the rendition of judgment and that the petition is argumentative. The court allowed appellee’s motion, quashed the writ and rendered judgment for appellee, from which judgment the railroad company has appealed to this court.

Provision is made for relief by certiorari in chapter 79, paragraphs 186 to 190 of our statutes. It is there required that the petition shall set forth and show, upon the oath of the applicant or his agent, (1) that the judgment was not the result of negligence in the party praying the writ; (2) that the judgment in his opinion is unjust and erroneous, setting forth wherein the injustice and error consists; and (3) that it was not in the power of the party to take an appeal in the ordinary way, setting forth the particular circumstances which prevented him from so doing. Our courts have uniformly held that the three facts required by the statute must be shown by the petition, not merely alleged as a conclusion of the party. Russell v. Pickering, 17 Ill. 31; First Nat. Bank of Chicago v. Beresford, 78 Ill. 391; Schmitt v. Edward Hines Lumber Co., 124 Ill. App. 319. The petition “must set forth and show the facts and permit the court to draw the conclusion therefrom. If he fails to do this as to either of the three specifications of the statute, or if the facts set forth as to either of those specifications appear insufficient to support the conclusion, the petition is fatally defective, and the order for the writ should be refused, or if granted tentatively, then the writ itself should be quashed by the Circuit Court on motion for that purpose made in apt time.” Horrell v. Horrell, 52 Ill. App. 477; Clifford v. Waldrop, 23 Ill. 336. Appellant’s petition was insufficient in that it failed to state wherein appellee’s judgment was unjust and erroneous.

Appellant’s allegation that it was not at the time of the commencement of the action and is not now indebted to appellee does not meet the requirements of the statute in this regard. Chicago World Book Co. v. Brewer, 57 Ill. App. 526. The return of the summons in this case is as follows: “Personally served the within summons on the within-named defendant, the Illinois Central Railroad Company, a corporation, by leaving a true copy thereof with C. 0. Shumway, agent of said corporation in my county, this 30th day of October, A. D. 1917, its president, secretary, superintendent, general agent, cashier or principal clerk, or either of them, not found in my county. Jno. Howells, Constable. ’ ’

In form the return meets the requirements of section 8, eh. 110 of the 'Statute (J. & A. ¶ 8545). Can its verity be overcome by the allegation of the petition that no summons was served upon it as is required by law? “The rule is that where the legality of the acts of a public officer are brought collaterally in question, he will be presumed to have done his duty.” Hogue v. Corbit, 156 Ill. 540. “A sound public policy, the security of litigants and the stability of legal proceedings demand that the return of the sworn officer shall not be set'aside or impeached except upon satisfactory evidence. Every presumption in favor of the return is indulged, and it will not be set aside upon the uncorroborated testimony of the party upon whom service purports to have been made.” Kochman v. O’Neill, 202 Ill. 110. The petition is verified on information and belief by B. D. Bristol, freight claim agent, and therefore his statements cannot be given much if any weight in overcoming the return. The other affiant is C. O. Shumway, the person upon whom service purports to have been made. He only loosely, indefinitely and by way of argument contradicts the officer’s return. Under the authorities cited and the facts stated, the return of the constable indorsed on the summons in this case has not been overcome. The petition therefore does not meet the requirements of the statute, and under the law cited the judgment of the Circuit Court must be affirmed.

Judgment affirmed.