text:
    Thirza S. Scheidecker, Appellee, v. Letitia A. Westgate, Executrix, Appellant.
    Gen. No. 5,533.
    1. Contracts—option to purchase construed. An option contained in a lease construed to mean that if the lessor receive an offer for the land demised which he was willing to accept, such offer beeame the price at which the lessee might purchase, and that if such lessee then decided to exercise her privilege and buy at that price the lessor was bound to convey to her upon her paying the sum of money.
    2. Contracts—how indefinite option may he rendered definite. Although the precise price at which a lessee might purchase might not be named in the lease, .yet if the option contained in the lease provided a method for determining such price and the price is determined according to that method, the contract is as complete as if the price had been originally fixed therein.
    3. Assumpsit—when lies for money had and received. If a lease contain an option of purchase by the lessee at the same price at which an offer of purchase might be made by a third party and such option is exercised by the'lessee under a representation that a larger sum than that actually offered had been offered, the excess of purchase price may be recovered in an action of assumpsit for money had and received.
    4. Verdicts—how excessiveness cured. If a verdict does not include a proper deduction it is cured if it likewise failed to include a proper addition for a larger sum than such omitted deduction.
    Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Kraus, Alschuler & Holden, for appellant.
    John R. Cochran and Hayes McKinney, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

On March 16, 1904, David W. Westgate, the owner, leased to Thirza S. Scheidecker certain premises in the city of Sycamore, DeKalb county, known as the Westgate Feed Stables, including therein the restaurant and second story of said buildings and the scales in the street in front thereof and the use of a certain driveway to the north side of said feed stable, there being expressly exempted from said lease the house and lot owned by Westgate lying north of the main feed shed building. The lease was to run from May 9, 1904, to May 9,1907, for a certain monthly rental therein reserved. The lease also contained the following provisions:

“It being also understood that the party of the second part has the privilege of buying said leased premises for the sum of Thirteen Thousand Five Hundred Dollars ($13,500) and the like privilege of purchasing the house and lot now owned by first party next north and adjoining said barn and fronting on Exchange street, together with said premises for the sum of Fifteen Thousand Dollars ($15,000), during the first year of the term of this lease; but said right of purchase in said second party is not in any way to prevent first party from selling said premises to other parties, and in the event that said first party does sell said premises to other parties, then the party of the second part thereby agrees to vacate said premises at the end of the first year of the term of this lease. Party of the first part also reserves the right to sell said premises to other parties at any time during the second or third year of said term, giving to party of the second part however the privilege to purchase said premises at the price for which the same could be sold to other parties; and in the event that said premises are so sold to other parties, then the party of the second part hereby agrees to vacate said premises and treat this lease as cancelled at the end of the year during which said sale is made. ’ ’

On a certain day in August, 1905, J. B. Stephens, the attorney of Westgate, went to Mrs. Seheideeker in the forenoon by direction of Westgate and told her that Westgate had a purchaser ready to take the property at $14,000, and that if she wished to exercise her option to purchase the feed stables, as she had a right to do, at that price, she must signify her intention to do ’ so by four o’clock that afternoon. Before four o’clock that afternoon she notified Stephens she would take the property. A deed was prepared from Westgate to her dated August 23, 1905, Westgate and wife executed and returned it to Stephens and he presented it to the bank in Sycamore and was paid $14,000 therefor in behalf of Mrs. Seheideeker. Afterwards Mrs. Schei- ’ decker received information that Westgate in fact contracted to sell this property to H. F. Witt for $12,000 and, conceiving that under her lease she had a right to buy 'this property for $12,000 and that she had been deceived and defrauded out of $2,000, she brought suit against Westgate in the circuit court of Kane county, where Westgate then lived; but, not getting service of summons in the lifetime of Westgate, she began the present suit by filing a claim therefor against his estate in the probate court. The claim was disallowed in the probate court and she appealed to the circuit court where, upon a jury trial, she had a verdict for $2,000. The defendant moved for a new trial which was denied, claimant had judgment, to be paid in due course of administration, and the executrix appeals therefrom.

Appellant’s main contention is that the provisions of the lease giving appellee an option to buy are so vague and uncertain as to be inoperative. We are of opinion that this case is substantially governed by the principles laid down in Hayes v. O’Brien, 149 Ill. 403, and that the meaning of this lease is that if Westgate received an offer for the land which he was willing to accept, that became the price at which Mrs. Seheideeker might purchase, and that if she then decided to exercise her privilege and buy at that price Westgate was bound to convey to her upon her paying the sum named. It is true the precise price at which Mrs. Scheidecker might purchase was not named in the lease, but the law is that where the contract provides a method for determining the price and the price is determined according to the method prescribed in the contract, the contract is then as complete as if the price had been originally fixed in the contract. The case of Folsom v. Harr, 218 Ill. 369, relied upon by appellant, is distinguishable from this case by the fact that there the contract did not appoint any method by which the price should be determined. We are therefore of opinion that this was a valid and enforceable contract. Graham was acting as a real estate agent at Sycamore; Westgate then lived in La Salle county. Westgate had placed the feed barn in the hands of Graham to sell. Graham found Witt and went with him, early in August, 1905, to La Salle county to see Westgate and the parties there entered into a written contract for the sale of the barn by Westgate to Witt for $12,000, and $100 was paid on behalf of Witt to Westgate to bind the bargain. This contract was not produced and it' is not certain whether it stated when Witt would be let into possession, but the proof shows that it was at least orally stated and understood that he would obtain possession the first of March following. Under the lease between Westgate and Mrs. Scheidecker, it was the duty of Westgate to inform Mrs. Scheidecker of this contract, and she had a right to buy the property at that price under the provisions of her lease. West-gate never did inform her of that contract. Some days later Westgate went to Sycamore and went to his attorney, Stephens, to arrange for having the conveyance made to Witt. His attention was then called to the provision in the lease giving Mrs. Scheidecker a right to buy. Thereafter Westgate, Witt aud Graham met in Sycamore and it was decided that Westgate and Witt should go and see Mrs. Scheidecker, and they did so. Graham went with them as far as the nearest street corner. Graham testified that it was arranged between Westgate and Witt that they should tell Mrs. Scheidecker that Witt had contracted to pay $14,000 for the property, and that if she thereupon bought the property, under her lease, Westgate should have $12,-000 and Witt $2,000. At the interview, however, it seems that no sum was mentioned. The proof is that at that interview Mrs. Scheidecker was told that Witt had bought the property or had made arrangements to buy it, and she replied that she had the right to buy the property under her lease. A few days later West-gate directed Stephens to tell Mrs. Scheidecker that if she wanted the property she would have to pay $14,000 for it that day, and Stephens went and told Mrs. Scheidecker that Westgate had sold the barn and that under the lease she had the first privilege of taking it, and that it was a law suit between Mrs. Scheidecker and Westgate if he deeded it to Witt, and a law suit between Westgate and Witt if he deeded it to Mrs. Scheidecker, and that Westgate did not want to lose the sale of it, and if Mrs. Scheidecker wanted it she must make up her mind by four o’clock that afternoon, and the price was stated as $14,000. Stephens testified that he informed Mrs. Scheidecker on that day that Westgate had a purchaser ready to take the property at $14,000 and if she wanted to take it under her option that was the price and she must signify her disposition by four o’clock that afternoon. Thereupon she got the money and paid him as soon as he cóuld get a deed executed and delivered. If these were the facts and all the material facts, then Westgate received from Mrs. Scheidecker $2,000 for this property which she was not bound to pay therefor; and she could have compelled a conveyance to her of the property for $12,000 under the facts above stated. Under the facts above stated this $2,000 is money of the plaintiff, which West-gate obtained and which in equity and good conscience he had no right to detain but ought to refund, and an action for money had and received can be maintained by Mrs. Scheidecker therefor. Taylor v. Taylor, 20 Ill. 650; Board of Supervisors v. Manny, 56 Ill. 160; First National Bank v. Gatton, 172 Ill. 625; Fay v. Slaughter, 194 Ill. 157. Appellant contends that it was necessary for appellee to prove that the premises were not worth $14,000, and that she can only recover what she paid in excess of the real value of the property. This is supported by ingenious argument, but we consider it unsound. An old livery stable has no specific value. Its value would be a matter of opinion only and upon which opinions would necessarily differ. When West-gate contracted to sell this feed barn to Witt and Witt contracted to buy it for $12,000, Mrs. Scheidecker had a right to buy it at that price, regardless of the opinions of any one as to its actual value.

Appellant sought to show that after appellee declared she would buy the property Witt made a written proposition to pay $14,000 for it and that therefore Mrs. Scheidecker then became bound to pay $14,000 if she bought the property, and hence cannot recover here. On that subject two questions were litigated and were submitted to a jury, viz., whether Witt did make such an offer, and whether it was made in good faith or collusively. Witt swears he did not make the offer to Westgate but delivered the proposition in writing to Stephens. Stephens testified that he did not receive any such proposition from Witt. After Westgate died Stephens turned over to the executrix Westgate’s papers in his possession. Appellant did not introduce any such writing in evidence. If such a writing was tendered, it is a doubtful question under the evidence whether it was made in good faith or only for the purpose of compelling Mrs. Scheidecker to pay $14,000 for the property if she bought at all, notwithstanding that the only price intended to be enforced between West-gate and Witt was $12,000. The conversation detailed by Graham as taking' place while Westgate and Witt were on their way to see Mrs. Scheidecker shows that they then had an agreement between themselves to deceive her as to the price Witt had agreed to pay. The deed from Westgate to Mrs. Scheidecker was dated August 23. Another deed was prepared of that same date from Westgate to Witt for the house and lot north of the feed barn, which stated the consideration at $1600 and Westgate acknowledged it on August 24. Witt testified that $1600 was not the true consideration and he declined to state what the true consideration was and said he could not honorably tell it. When all the evidence is considered together, it is obvious that it tended to show either that Witt did not make any such offer of $14,000 or else that the offer was not made in good faith but under some arrangement by which if he got the property it should in fact cost him but $12,000, as his contract provided. The jury were instructed at the request of appellant that if, after Witt agreed to pay $12,000 and after he found that the lease gave Mrs. Scheidecker an option to buy, Witt in good faith offered to pay $14,000 for the property and was ready, willing and able to pay that amount for it, then their verdict should be for appellant. By their verdict then the jury have found, either that Witt did not make such offer or that he did not make it in good faith, intending to pay that sum if his offer was accepted. The trial judge approved the conclusion of the jury and we see no reason to disturb it upon the facts.

Complaint is made of the two instructions given for appellee, but we find them unobjectionable. When Witt agreed to buy at $12,000, it was orally agreed that he should pay Graham a commission of $300; and it is therefore contended that the agreed purchase price was really $12,300, and that appellee should only have recovered $1,700. We deem it unnecessary to discuss this question, for we see no reason why appellee was not entitled to recover interest and the court so instructed the jury, and that feature of the instruction is not questioned here. The interest to which appellee was entitled would far exceed the sum of $300.

The judgment is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dibell Willis, J.,

license: Public Domain

text:
    The Standard Paving Company et al., Appellants, v. City of Elgin et al., Appellees.
    Gen. No. 5,536.
    1. Injunctions—when lie to restrain award of contract by board of local improvements. An injunction ma.y properly be awarded at the instance of taxpayers directly affected to restrain a board of local improvements from arbitrarily and fraudulently letting a contract to one other than the lowest responsible bidder. 3eld, in this case, that the allegations of the bill of complaint were sufficient to authorize the granting of the relief prayed.
    2. Local improvements—when fraud in letting contract established. 3eld, that the evidence in this case tended to show that the action of the board of local improvements in awarding the contract in question was arbitrary and fraudulent.
    3. Parties—effect of want of interest of one complainant. The want of interest of one of the complainants in a bill of equity may be fatal to the entire suit but such lack of interest should be raised by demurrer.
    Willis, J., dissenting.
    Bill for injunction. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed in part; reversed in part and remanded.
    Opinion filed May 25, 1911.

      Tolman, Bedeield & Sexton, DeGtoy B. Ellis and Irving M. Western, for appellants.
    Frank W. Joslyn, for appellee, City of Elgin; B. Waite Joslyn, of counsel.
   Mr. Justice Dibell

delivered the opinion of the court.

The Standard Paving Company, an Illinois corporation, authorized to make and perform contracts for local street improvements, and five taxpayers of the city of Elgin who were also owners of real estate abutting on that part of North Spring street in said city of Elgin specially assessed for the improvement thereof hereinafter mentioned, filed this bill against the city of Elgin and its mayor, city clerk and city treasurer and the McCarthy Improvement Company to restrain said city from entering into a contract for paving a part of North Spring street under an award to said McCarthy Company of the contract therefor, made by the Board of Local Improvements on September 15, 1910, and to restrain the mayor and city clerk from executing such contract on behalf of said city and to restrain the citv treasurer from making any payments on account of any work done under such contract. One ground alleged for the relief prayed for was that said contract had been awarded to the McCarthy Company at $52,500, though the Standard Company bid $47,677.06, in violation of the statute requiring such contract to be let to the lowest responsible bidder. The bill was answered and in the answers it was alleged, among other things, that the' Board of Local Improvements let said contract of the McCarthy Company in the reasonable exercise of the judgment of its members, as provided by law. The bill charged that the contract was fraudulently awarded to the McCarthy Company, and the answer denied it. There were allegations and counter allegations concerning the kind of material required by the specifications, and the legality or illegality of the specifications on that subject. The ordinance enacted that the cost of mating and collecting the special assessment should be paid by general taxation. There was a hearing, and at the close of the proofs of the complainants, the defendants moved to dismiss the bill for want of equity, under the proof, and that motion was sustained and the bill was dismissed for want of equity, and all the complainants prosecute this appeal, except one taxpayer who has died since the bill was filed.

It is argued that the bill does not sufficiently charge that the Board of Local Improvements arbitrarily exercised its discretion in awarding the contract to the McCarthy Company. It does charge that the Standard Company was fully equipped to construct the improvement and had had much experience in the construction of similar improvements; that it was financially. responsible and a reputable contractor; that its bid was regular in every respect; that it was the lowest responsible bidder; that the members of the Board well knew that the bid of the Standard Company was the lowest regulár bid of a responsible bidder, but that they refused to award the contract to the Standard Company but fraudulently awarded it to the McCarthy Company; that the award to the McCarthy Company at $52,500 imposed an excessive burden of taxation upon the individuals who were complainants and upon other property owners; that the bid of the Standard Company of $47,667.06 was a reasonable price; that the award to the McCarthy Company at $52,500 was extortion upon the owners of the property specially assessed for the improvement and was oppressive and was a fraud upon said property owners and upon the general taxpayers and was contrary to the provisions of the statute in relation to local improvements and was illegal. We consider that these allegations, if proven, are sufficient to authorize and require the court, at the instance of taxpayers and owners of property specially assessed to pay for the improvement, to enjoin the execution and performance of a contract for this improvement between the city and the McCarthy Company. Taxpayers and the owners of property specially assessed for the improvement have a right to that relief, if the bill is proved, even though the result should be a letting of the contract to the White Construction Company or a readvertisement for bids.

The statute is set out in our opinion in the similar case of Stubbs v. City of Aurora, 160 Ill. App. 351. We there held that a court of equity had no power to interfere with the discretion reposed by law in the Board of Local Improvements, unless fraud was shown, and also that the term “responsible bidder,” in the provision requiring the contract for such an improvement to be let to the lowest responsible bidder, included not only financial responsibility, but the ability to discharge the obligations of the proposed contract in accordance with what might be expected or demanded thereunder. It is contended by appellees that fraud cannot be presumed, and that appellants introduced no evidence showing fraud, and that therefore the bill was rightfully dismissed. The vital question therefore is whether the evidence introduced by appellants made a prima facie case-of fraud in the letting of the contract. The proofs showed that an ordinance was passed for the improvement of this street; that there were four bidders for the contract and that the Standard Company was the lowest, and that the McCarthy Company was not one of the bidders; that thereupon the Board of Local Improvements rejected all bids and advertised again; that there were again four bidders, of whom the Standard Company was the lowest and the McCarthy Improvement Company was next and over $8,000 higher than the Standard Company; that the contract was then awarded to the McCarthy Company; that thereafter a taxpayer of said city filed a bill to restrain the making of a contract with the McCarthy Company for said improvement, the ground alleged being that the specifications for said improvement were so drawn as to require in the making of said improvement a patented material and thereby- to exclude competitive bidding, contrary to law. Siegel v. City of Chicago, 223 Ill. 428. A demurrer to said bill was overruled. Thereupon the ordinance was repealed and another ordinance was adopted, and bids for said improvement were received and three parties bid thereon, and the Standard Paving Company was the lowest bidder at $47,667.06, the "White Construction Company was the next lowest bidder at $48,847.06, and the McCarthy Improvement Company was the highest bidder at $52,500, and the Board awarded the contract to the McCarthy Company. The proof showed that the Standard Company was solvent and financially responsible, and that it had laid approximately 80,000 yards of a similar improvement during the last preceding year which had been accepted by the municipality for which the work was done, and showed an apparent compliance by the Standard Company with all the terms of the advertisement for bids. The bid of the McCarthy Company, which was accepted, was more than ten per cent, higher than the bid of the Standard Company. The McCarthy Company was not even the next to the lowest bidder, but was the highest bidder.

We are of opinion that, when all these proofs are considered, they tend to show a purpose on the part of the Board to favor the McCarthy Company and to let the contract to it when it was not the lowest responsible bidder. The knowledge of the facts and circumstances which induced the Board to let this contract to the McCarthy Company, if it had any substantial reasons for so doing, rests in the minds of the several members of the Board, and there is nothing to show that appellants have any knowledge thereof. The reasons were not made a matter of record by the Board. It may well be that if the allegations of the answer of the city had all been proved, it might justly have been found that the letting was not fraudulent and that equity should not interfere. But the city introduced no proof, and allegations cannot be considered unless proven. We conclude that the proof here introduced was sufficient to entitle taxpayers and owners of property specially assessed to an injunction restraining the letting of the contract to the McCarthy Company, unless the defendants produced proof showing that the action of the Board of Local Improvements in letting the contract as they did was a reasonable exercise of their judgment and their discretion.

We held indirectly in Stubbs v. City of Aurora, supra, that the rejected bidder could not maintain a bill in equity to restrain the letting of the contract to the successful bidder, upon the ground alone that the law requires the contract to be let to the lowest responsible bidder and that he is the lowest responsible bidder. 2 High on Injunctions, 4th Ed., sec. 1252. Therefore the Standard Company cannot maintain this bill merely because the Board of Local Improvements should have let the contract to it and did not. The bill alleged that the Standard Company deposited with the proper city officer a check for ten per cent, of the amount of its bid. The answer alleged and the proof showed that this check had been returned after the bill was filed, and the Standard Company has no equitable cause of action arising out of that check. The bill carefully separated the interests of the Standard Company and of the other complainants, and where allegations were made as to an excessive burden of taxation and extortion and oppression it was alleged to be an injury to the complainants other than the Standard Company. The only allegation remaining in the hill alleging any equitable right to relief in the Standard Company is the charge that it had been damaged by the rejection of its bid and had no adequate remedy at law to obtain its damages. The answer denied that the Standard Company had been damaged by the rejection of its bid, and after averring the return of the check to the Standard Company the answer said that the Standard Company “now has no interest in the subject-matter of this litigation.” It is obvious that a defeated bidder for such an improvement cannot maintain a bill in equity to assess damages because of the rejection of his bid. Therefore if the Standard Company had been the only complainant, its bill would have been properly dismissed for want of equity. But five taxpayers and owners of property specially assessed for this improvement were also complainants We held in Stubbs v. City of Aurora, supra, that if a taxpayer and owner of property specially assessed for the improvement filed such a bill, but was not the real complainant, but only loaned the use of his name to the rejected bidder to enable the latter to prosecute under cover a suit in equity which it could not maintain in its own name, such a bill should be dismissed upon discovery of the collusion. In this case the individual complainants testified that they understood that they were to pay a part of the costs and that they had employed one of the solicitors in this case and had not employed and were not liable to pay another of the solicitors. Apparently these property owners are prosecuting this suit in their own names in good faith. The want of interest of one of the parties complainant in a bill in equity may be fatal to the whole suit. Story’s Equity Pleading, secs. 232, 509. Such lack of interest in the suit on the part of one of several complainants should usually be raised by demurrer Story’s Eq. PL, secs. 508, 544. ■ That author, in section 224, quotes from Lord Redesdale to the effect that it is sometimes doubtful until the decision of the cause what interests may be affected, and sometimes parties must be brought before the court to litigate a question who, according to the decision, have no interest and as to whom therefore, whether complainants or defendants, the bill may be finally dismissed. The decree of the court below was correct as to the Standard Company, but the property owners and taxpayers who were complainants were entitled to have the letting of the McCarthy contract enjoined upon the proofs produced, unless the defendants produced proof showing that the McCarthy Company was the lowest responsible bidder or that the Board so determined in the reasonable exercise of its judgment and discretion upon the facts then before it.

The decree is therefore affirmed as to the Standard Paving Company, and as to the other appellants the decree is reversed and the cause remanded for further proceedings consistent with this opinion. One-half of the costs of this court will be adjudged against the Standard Paving Company and the rest thereof against appellees, the city and the McCarthy Improvement Company.

Affirmed in part, reversed in part and remanded.

Willis, J.,

dissenting: I heartily concur in the conclusion of the majority of the court that the Standard Paving Company is not a proper party to this suit. But I am also of the opinion that what was done by the Board of Local Improvements under a prior ordinance, and the result of litigation instituted by one who is not a party to this suit concerning the validity of such prior ordinance, which ordinance was repealed before the ordinance here involved was adopted, has no legitimate bearing upon the issues in this case; and it is not probable that any weight was given to either the prior ordinance, or the legal proceedings had thereon, by either court or counsel on the trial below. During the oral argument here counsel for appellees asked counsel for appellants if he still adhered to the position that the contract had been awarded to the McCarthy Company by fraud as charged in the bill and urged in written argument ; and counsel for appellants replied that appellants relied solely on the proof that the Standard Paving Company was financially responsible, the lowest bidder, and had done a large amount of paving with similar material, which had been accepted; and claimed that such proof raised the presumption that the Board of Local Improvements had acted unlawfully in awarding the contract to the McCarthy Company, a higher bidder, and cast the burden upon the Board of Local Improvements to produce evidence sufficient to overcome the presumption so raised. I am also of the opinion that the legal presumption that the Board of Local Improvements acted regularly and in the proper exercise of its official discretion, and honestly determined that the McCarthy Company was, all things considered, the lowest responsible bidder, is not overcome by the competent evidence, notwithstanding the proof shows that the Standard Paving Company’s bid was less in amount Under the authority of Stubbs v. City of Aurora, supra, a court of equity has no authority to interfere with the exercise of the official discretion of the Board of Local Improvements in the absence of proof of fraud, and I am of opinion that the decree should be affirmed as to all the appellants.


author: Mr. Justice Dibell

text:
    The People of the State of Illinois, Appellee, v. Phillip J. Dietmeyer, Appellant.
    Gen. No. 5,526.
    1. Evidence—when letter and postmarked envelope not competent. A letter with a post-marked envelope is incompetent which has not been received by the addressee and which is authenticated only by the statements made in another letter written by the sender which enclosed the undelivered letter and envelope.
    2. Evidence—what proper cross-examination of medical expert. It is proper upon cross-examination of a medical expert to put to him hypothetical questions containing supposed states of fact other than those shown by 'the evidence.
    3. Evidence—ivhat improper cross-examination. Questions as to matters not inquired into upon direct examination are not proper upoh cross-examination.
    4. Instructions—when upon interest of complaining witness properly modified. Held, that an instruction which -told the jury that the complaining witness was interested in the event of the suit and that that fact might be considered in determining her credibility, was properly modified by adding thereto the words "as well as all other evideneé in the case.”
    5. Instructions—when, as to effect of false testimony by complaining witness, properly refused. An instruction which tells the jury that if they believe that the complaining witness has testified falsely upon a material issue in the cause they should find for the defendant, is properly refused if there was other evidence in the cause which would have justified a verdict against the defendant.
    6. Instructions'—when as to scrutiny to be given testimony properly refused. An instruction which singles out the complaining witness and tells the jury that they "should scrutinize her testimony with care and caution,” is properly refused ivhere the jury under the law should scrutinize the testimony of the defendant as closely as that of the complaining witness.
    7. Instructions—when as to right to disregard testimony properly refused. The testimony of a witness may only be disregarded where it is wilfully and corruptly false and even then it can only be disregarded where it is not corroborated by other credible evidence or by facts and circumstances proved on the trial, and an instruction which ignores these rules of law is properly refused. *

      8. Appeals and errors—how affidavit preserved for review. An affidavit setting np newly discovered evidence is not preserved for review unless incorporated in the bill of exceptions.
    Bastardy. Appeal from the County Court of Lake county; the Hon. De Witt L. Jones, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    Cooke, Pope & Pope, for appellant.
    Ralph J. Dady and Claire C. Edwards, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Phillip J. Dietmeyer appeals from a judgment of the court below finding him to he the father of the bastard child of Mary Gallagher, and alleges that the court erred in its rulings upon the evidence and the instructions, and that a new trial should have been granted because the verdict is not supported by a preponderance of the evidence.

The child was born June 17, 1910. Mary Gallagher testified that appellant came to her father’s home on Sunday evening, September '26, 1909, and took her for a ride and during that ride had intercourse with her by the side of the road, while the horse stood unhitched, and that the child was the fruit of that intercourse. Her mother testified that appellant came for Mary that evening and took her for a ride. Appellant testified that he was not with Mary Gallagher the evening of September 26, but that on that evening he went to the residence of John Chope, about three and one-half miles from the Gallagher place, and there met a man named Pell, and afterwards took Mabel Chope for a ride and drove with her to Waukegan and back, returning to the Chope home between eleven and twelve o’clock P. M. He was corroborated by Chope, who testified ®that appellant came to his home on the evening of September 26 and met Fell there and then took Mabel for a drive and came back late in the evening. In this state of the proof Chope produced a letter, dated Amboy, Illinois, November 13, 1909, addressed to Mr. Chope at Wadsworth, Illinois, and professing to be signed by Fell, enclosed in which was a letter dated Amboy, Illinois, September 24, 1909, addressed to Chope and signed by Fell, stating that he would start the next morning on a visit to the Chopes, and also an envelope, bearing a postmark showing the letter mailed at Amboy September 24, and another postmark, showing it received at Millburn September 25, and an endorsement showing that the letter was returned to the sender because the party was not there. Chope testified that their mail route had been changed to rural delivery and he did not get the letter. Appellant offered these letters and the first envelope in evidence, and the court sustained an objection thereto. The purpose of the evidence was to corroborate appellant and Chope in their testimony that Fell was at the Chope residence on September 26. Fell was not called as a witness. The only proof that the letter and envelope enclosed by Fell to Chope on November 13 was in fact written and mailed on September 24 and that the stamps impressed thereon were placed there by the United States in the regular course of the transmission of the letter, was contained in the letter written by Fell, dated November 13. The statements in this letter were not sworn to by anybody, and therefore the evidence was incompetent.

Each side called medical experts as to the period of gestation. On cross examination of a physician called by the People, appellant’s counsel asked a hypothetical question, not based on the evidence, and the court sustained an objection thereto. We think that it was competent to test the views of the expert by putting to him supposed states of fact differing from that shown in the evidence, hut the actual question had little sense or meaning and there was no particular controversy between the views of the physicians called by the respective parties, and none of them gave any testimony at all decisive of this case, and we are of opinion that there was no reversible error in refusing to permit this particular question to be answered. On the cross examination of Mary Gallagher she was asked if she had ever sent word to Leslie Dietmever, a brother of appellant, to come to her place, and also, if on September 10, 1909, she sent word by Irene Dietmever to tell appellant she wanted to see him the next Sundav night. The court sustained objections to these questions. This was not cross examination of anything testified to by Marv Gallagher. Moreover, Irene Dietmever testified that Mary Gallagher did send such word to Leslie Dietmeyer and did send such word on September 10, 1909, to appellant, and Marv Gallagher did not deny this testimony, so that the fact was proven, and the record therefore contains no error on that subject.

Leslie Dietmeyer was. a witness for appellant and was asked if he had ever seen Mary Gallagher out with other young men alone during the months of August, September or October, and the court sustained an objection to this question. Counsel for appellant have not dealt properlv with the court in abstracting this part of the record and in discussing this objection, since they have omitted the fact that the record show's that immediately after the question above, Leslie testified that he had never seen Mary Gallagher in company alone with other young men during the month of September or during the latter part of August or during the fore part of October. These answers covered all the time during which the child could have been begotten, and appellant has in fact nothing of which to complain.

Appellant requested the court to instruct the jury that Mary Gallagher was interested in the event of the suit and that that fact might be considered in determine ing her credibility as a witness, which the court modified by adding thereto the words: “as well as all the other evidence in the case.” This modification stated the law and did not detract from the force of the instruction. The court refused the tenth instruction requested by defendant, which after reciting the testimony of Mary Gallagher that the intercourse took place on September 26,1909, and the evidence of appellant that he was elsewhere at that time, told the jury that if they believed that Mary Gallagher testified falsely in that regard they should find for appellant. The'instruction was erroneous. Mary Gallagher may have been mistaken as to the date and this intercourse may have taken place on the evening of Sunday, September 12, as will be seen hereafter. Upon this record it does not necessarily follow that if the intercourse did not take place on September 26, the verdict was required to be for appellant The court refused the twelfth instruction requested by appellant, to the effect that if the jury believe that the charge rested alone on the testimony of Mary Gallagher ‘‘ then you should scrutinize her testimony with care and caution. ’ ’ The case did not rest solely on the testimony of Mary Gallagher and there was no more reason why her testimony should be scrutinized with care than the testimony of appellant, and the instruction should not have been a command to so scrutinize her testimony. The court refused instruction No. 14, requested by appellant, which was to the effect that if the only evidence tending to prove the guilt of appellant was the testimony of Mary Gallagher and if it was on any material point untrue, then the jury were at liberty to disregard her entire testimony. This instruction was erroneous. Such testimony may only be disregarded where it is wilfully and corruptly false, and even then it can only be disregarded where it is not corroborated by other credible evidence or by facts and circumstances proved on the trial. Appellant contends that the court erred in refusing to give an instruction at the close of all the evidence to find the defendant not guilty. Mary Gallagher testified that the defendant was the father of her child, and upon a motion to instruct for appellant the court could not weigh the evidence, and it would have been error to so instruct the jury. The motion for a new trial was in part based upon the alleged discovery of new testimony, to be given by the mother of appellant. The clerk has inserted in his record an alleged affidavit by Mrs. Dietmeyer, but said affidavit is not contained in the bill of exceptions, and the clerk had no power to make it a part of the record. Pardridge v. Morgenthau, 157 Ill. 395; Anderson Transfer Co. v. Fuller, 174 Ill. 221; People v. Drainage District, 235 Ill. 278. We find no reversible error of law in the record.

At the time this child was begotten Mary Gallagher was less than twenty-two and a half years old and appellant was an unmarried young man, living with his father upon a farm about a mile from the Gallagher farm. The parties had known each other since childhood and had been keeping company with each other about four years before the trial or about three years before this child was begotten. She testified that beginning about two and a half years before the origin of this child, she had had intércourse with appellant on numerous occasions. It appeared that he had ceased to go alone with her about July, 1909, and had begun going with Mabel Chope. He denied that he had ever had intercourse with Mary Gallagher. He not only denied having taken her for a ride on Sunday evening, September 26, but he also "denied that he had been with her or taken her to ride during any Sunday evening that month and testified that he had taken Mabel Chope for a drive each Sunday evening in August and in September, and he particularly stated the hour when he went to drive with Miss Chope on the second Sunday in September and the hour when they returned. He, however, casually admitted that he did take Mary Gallagher for a drive on the evening of September 12, and when he ascertained that September 12 was Sunday, he then testified that on that Sunday he did not take Mabel Chope for a drive but did take Mary Gallagher. This change in his testimony was calculated to weaken his credit before the jury. He proved by himself and his father that the horse which he drove on Sunday evening, September 26, was spirited and would not stand unhitched by the side of the road. He produced his brother, Leslie Dietmeyer, who testified that he had Mary Gallagher out for a drive the latter part of August, 1909, and the second of October, 1909, and each time had sexual intercourse with her. He also produced as a witness one Frank Hauser, who testified he took Mary Gallagher for a drive in the evening of August 30, 1909, and had sexual intercourse with her. This record presented a question of fact for the jury. If the jury believed Mary Gallagher, then the child was begotten on September 26 and born 264 days later. Much is made by appellant of the medical testimony that the usual period of gestation is 280 days, or as some of the physicians said, from 264 to 284 days, and that this was a well developed child. It is entirely possible that the jury may have believed that Mary Gallagher’s testimony was true, except that she was mistaken in the date and that the child was conceived during the drive testified to by appellant on September 12, which would make the period of gestation 278 days. It may well be that the jury did not believe the testimony of Leslie Dietmeyer and Hauser. The jury and the trial judge have believed Mary Gallagher. The state of the evidence is such that a verdict either way, supported by tbe trial judge, must be affirmed where no serious error of law intervened.

The judgment is therefore affirmed.

Affirmed,


text:
    City of Rochelle, Appellant, v. Evens & Howard Fire Brick Company, Appellee.
    Gen. No. 5,515.
    1. Appeals and errors—when appeal "by city perfected,. When a city prays, and the court grants, an appeal the appeal by the city is perfected, but in order to prosecute such appeal a transcript of the record must be filed in the Appellate Court by the second day of its next succeeding term.
    2. Appeals and errors—when failure to file separate transcripts upon two appeals not material. In the absence of a motion to sever, the failure of a city to file separate transcripts upon appeals from separate judgments is not material where the transcript filed was sufficient to enable the review of both judgments appealed from and was filed in apt time to obtain a review of the first judgment appealed from.
    3. Local improvements'—when material does not become property of city. “When the contractor is to furnish the material and labor foi the performance of a working contract, * * * the materials remain the property of the contractor until they are affixed to the land of the builder or are delivered to and accepted by him as his property, and this rule is not altered by the fact that the materials were purchased by the contractor with the intention of working them into the structure or that they were brought upon the land of the builder or that preliminary work had been done upon them so as to fit them for annexation to the structure or that they have been tentatively affixed to the structure for the purpose of seeing whether they would fit and afterwards removed, or that the builder has made payments to the contractor as the work progressed. ’ ’

    Bill for injunction. Appeal from the Circuit Court of Ogle county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed in part and reversed in part.
    Opinion filed October 13, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    W. P. Landon and Baxter & Wirick, for appellant.
    J. C. Seyster and Frank E. Reed, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

On March 5, 1906, Giacomo Maffioli and the city of Rochelle entered into a contract by which Maffioli, the contractor, agreed to furnish all the materials and labor and to construct certain sewers, pursuant to a certain ordinance, for $40,813. He agreed to pay for all material and labor used in the construction of said sewer and to keep the city harmless from all damages resulting from any fault or neglect of said contractor during the progress of the work. He agreed to begin the work by March 19, 1906, and to complete it by December 1, 1906, in a substantial and workmanlike manner, and that, if he failed to employ a sufficient force to complete the work within the time specified, the city might at once take possession thereof and employ a sufficient force to complete the work or might advertise for bids for the completion thereof and enter into a new contract for its completion, and the cost of completion, above the amount specified to be paid under the contract, should be paid by the contractor to the city. The contractor also agreed to pay $25 per day as liquidated damages for the non-completion of the work within the time specified. The cost of the work was to be paid for out of funds raised by special .assessment on the property benefited, the contractor to be paid in cash out of the sale of vouchers and bonds issued upon said assessment by the city. The engineer in charge on behalf of the city was to make monthly estimates of the material and labor actually wrought into the completed work, and within ten days after each such estimate the contractor was to he paid 85 per cent thereof. Maffioli entered upon the work and purchased from Evens & Howard Fire Brick Company, hereinafter called the company, a large quantity of sewer piping of various dimensions, and Maffioli distributed most of said pipe along the line of the streets wherein it was to be placed. On June 4, 1906, Maffioli addressed a communication to the city council, asking it, among other things, “to appropriate $2,000 on pipe in stock on the streets. ’ ’ The record of the city council on that day shows that said communication was presented and a motion was unanimously adopted that “the city advance $2,000 on sewer tile in stock, same to be remitted direct to the company furnishing the same.” Pursuant to that vote, an order for $2,000 was drawn to Maffioli and he endorsed it and the city sent said order to the company and it was credited to Maffioli. About July 15, 1906, after Maffioli had done work amounting to over $15,000 under the contract, he abandoned the work, leaving various sewers partly dug and in a dangerous condition. The city engineer thereupon proceeded to lay in some of the open sewers some of the tile distributed along the streets, doing said work from time to time till September 26. On September 28, Maffioli executed a bill of sale to George W. Jones, described as secretary of the company, of “all my right, title to and interest in, a certain quantity of sewer pipe of various sizes, now lying on the streets and piled in various places within the corporate limits of the city of Boehelle, Illinois,” (giving the approximate amounts), “same being the remainder of a certain quantity of sewer pipe sold to Maffioli bv the said”' company ***** “and I request the Honorable Mayor and the City Council of the city of Boehelle to permit said Geo. W. Jones, sec’y. Evens & Howard Fire Brick Company, his successors or assigns, to take possession of same and to remove said sewer pipe or otherwise to dispose of it as he may see fit. I further request that the Honorable Mayor and City Council of the City of Rochelle arrange settlement with Gf-eo. W. Jones, sec’y, Evens & Howard Fire Brick Company, his successors or assigns, for all of the sewer pipe belonging to me at the time I ceased work on the said sewers at said city of Rochelle and which was used by said city since the date of ceasing said work about July 15, 1906.” Thereupon the company notified the city that it was about to remove the sewer tile lying upon the streets. The city then filed a bill against the company to enjoin its removing said tile. The company answered. Thereafter the city let a contract to Paul Baxter for the completion of the work and permitted him to use the sewer tile remaining along the streets, and he did so use said tile. Thereafter the company filed a cross bill to compel the city to pay it for said tile. There was a hearing and thereafter a decree of October 10, 1910, which dismissed the bill of the city for want of equity and decreed that the. city pay the company the market value of all sewer pipe sold by the company to Maffioli in 1906, which was built into said sewer system by the city after Maffioli ceased work on the same, and all that was sold or disposed of by the city to Baxter; and the decree referred the cause upon the cross bill to the master to take proofs and report as to the market value of all sewer pipe placed in said sewer system by said city after Maffioli ceased work upon the s,ame and all that was disposed of by the city to Baxter or otherwise. From that decree the city-prayed an appeal to this court, which appeal the court allowed. Thereafter the master took evidence and made a report, and reported the market value of sewer pipe sold by the company to Maffioli in 1906 and placed in the sewer system by the city after Maffioli ceased work, including that sold to Baxter, at $3434.39. No objections or exceptions were filed to that report. Thereafter on February TO, 1911, the court rendered a decree under the cross bill in favor of the company against the city for $3434.39 together with all the costs. From that decree the city prayed an appeal to this court, which the court allowed.

It is contended by appellee that appellant did not perfect its appeal from the October decree and that the correctness of that decree cannot here be considered; and that as appellant did not except to the master’s report, it cannot be heard to question the February decree. No bond is required of a municipal corporation upon an appeal. When the city prayed an appeal to this court and the trial court granted that prayer, the appeal to this court was perfected. To prosecute that appeal it was essential that the appellant file a transcript of the record of the court below in this court by the second day of its next succeeding term, which was the April term, A. D. 1911. The appeal from the February decree was likewise perfected when the prayer for an appeal therefrom was granted by the trial court, and the prosecution of that appeal required that a like transcript of the record, involved in that appeal be filed by the second day of our April term A. D. 1911. A minute compliance with the law would perhaps require that two records should be filed, but the appellant has filed one record, covering the matter of both appeals, and that record was filed within the time fixed by law for the prosecution of the appeal from the October decree. Appellee did not move that the appeals be severed, but filed briefs and thereby joined in error. If the October decree was only interlocutory, as appellant contends, then the appeal from the February decree brings up the entire record., If the October decree was final, as appellee, contends, still by the filing of this record, the assigning of errors on each decree, and the joinder in error by appellee, we have jurisdiction of both appeals.

Appellant contends that this pipe, scattered along the street, had thereby become a part of the construction of this improvement, and that the city had a right to and did take possession thereof, and that Maffioli could not thereafter sell the same to the company; and, also, that by the advance of $2000 on the pipe in the street on June 4, the city either acquired a lien upon the pipe or became the purchaser thereof. We cannot concur in these contentions. The true rule we think is stated in 30 Am. & Eng. Ency. of Law, 2nd. Ed., 1215, as follows:

“When the contractor is to furnish the material and labor for the performance of a working contract, * * * * the materials remain the property of the contractor until they are affixed to the land of the builder or are delivered to and accepted by him as his property, and this rule is not, altered by the fact that the materials were purchased by the contractor with the intention of working them into the structure or that they were brought upon the land of the builder or that preliminary work had been done upon them so as to fit them for annexation to the structure or that they have been tentatively affixed to the structure for the purpose of seeing whether they would fit and afterwards removed, or that the builder has made payments to the contractor as the work progressed. ’ ’

To the same effect are Manchester Mills v. Rundlett, 23 N. H. 271; Fairfield Bridge Co. v. Nye, 60 Me. 372; and Cameron v. Orleans & Jefferson Ry. Co., 108 La. 83. The case of Duplan Silk Co. v. Spencer, 115 Fed. R. 689, relied upon by appellant, is distinguished from this case by the fact that there the owner was -authorized by the contract to take possession of all the materials, tools, and appliances of the contractor if he abandoned the work, while the contract before us does not contain such a provision. The city engineer testified that he took possession of all this tile, but he testified to no act which, amounts to taking possession, except to the tile which he actually did lay in the sewer between July 15 and September 26. We are of opinion under the authorities above cited, that the city did not take possession of any of the tile left lying on the streets by Maffioli, except that which its engineer placed in the sewer. There was nothing in the communication addressed to the council by Maffioli on June 4 nor in the language of the resolution adopted on June 4 to indicate that Maffioli intended to sell or the city to buy this sewer pipe or any part thereof by the advancement of that $2,000. No language was used indicating that the city should have a lien on said sewer pipe for said $2,000. Moreover, between June 4 and July 15, when Maffioli quit, he did a very large amount of work and laid a large amount of sewer pipe, and we may fairly infer that $2,000 worth of pipe went into the sewers between June 4 and September 26.

Appellant contends that Maffioli sold his pipe to Jones and not to the company, and that, as Jones is not a party, the decree in favor of the company is wrong. It is clear, we think, that the bill of sale was to Jones in his capacity as secretary of the company. Jones paid nothing for the bill of sale. Maffioli was to be credited on his indebtedness to the company for what pipe was obtained on the bill of sale. Jones was a witness and testified that he bought it for the company, and he is no doubt bound by the decree. Other technical objections here interposed by appellant we regard as unsound, but they do not require separate discussion.

We conclude that the October decree was erroneous in one respect, which error is carried into the master’s report and the February decree. Maffioli only sold to the company the sewer pipe “now lying on the streets and piled in various places within the corporate limits of the city of Rochelle. ’ ’ The proof shows that the city engineer laid 316.3 feet of one size of sewer pipe, 728 feet of another size and 388.8 feet of still another size, or 1433.1 feet in all, in the sewer after Maffioli quit and before September 26, 1906, and that the fair cash market value of said sewer pipe was $310.50. That pipe was taken possession of by the city and appropriated to the purposes of Maffioli’s contract before he made this bill of sale. It was attached to the sewer system and he could not thereafter sell it to any one and he did not attempt to sell it to the company by the terms of his bill of sale. He did request the council to settle with the company for the sewer pipe which it had used during that period, but obviously that request gave the company no legal rights. Maffioli was entitled to be allowed for the pipe so used upon a final settlement between the city and himself, after the second contractor had completed the work. The company could not obtain any right in the sewer pipe, so incorporated into the sewer system before the bill of sale was executed. The decree pays the company for this sewer pipe so used by the city before the bill of sale was made and not embraced in the bill of sale. The error was in the October decree. Appellant had no occasion to complain of the report of the master, as to the values, and its assignment of errors in the October decree preserves its rights.

The decree of the court below is therefore reversed as to $310.50 of the amount therein adjudged to the cross complainant and is affirmed as to the sum of $3,123.89 thereof at the costs of appellee.

Affirmed in part and reversed in part.


text:
    Benjamin F. Straus, Appellant, v. Citizens State Bank of Elmhurst, Appellee.
    Gen. No. 5,478.
    1. Appeals and errors—when finding and judgment not preserved for review. If the bill of exceptions does not show an exception preserved to a finding or judgment complained of, such finding or judgment is not preserved for review.
    2. Negotiable instruments—sections 16 and 58 construed. Sections 16 and 58 of the Negotiable Instruments Act operated to change the rule previously existing in this state so that now conditions attaching to the delivery of a note need not be shown by documentary evidence but may be established by parol.
    3. Interest—power of Appellate Court to compute. The Appellate Court in a proper ease has authority to compute and allow interest.
    Appeal from the Circuit Court of Du Page county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the April term, 1911.
    Reversed and judgment here.
    Opinion filed October 13, 1911.
    Bowles & Bowles, for appellant.
    S. L. Bathje and R. S. Egan, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Benjamin F. Straus sued the Citizens State Bank of Elmhurst, hereinafter called the Elmhurst Bank, to recover an unpaid balance of $1,000 upon a temporary loan of $2,000 alleged to have been made by Straus to the Elmhurst Bank on January 14, 1910, and filed the common counts. The Elmhurst Bank filed the general issue and pleas of set-off, based upon a note for $3,500, dated October 30,1908, signed by Straus, payable to his order and by him endorsed, which the .bank claimed to hold against him. A jury was waived and it was stipulated that the issues should he considered made upon both sides and that each side could offer evidence as if proper pleadings had been filed. Proofs were heard by the court at various times and the court allowed the claim of Straus upon the temporary loan and allowed the set-off of the Elmhurst Bank upon the note and found a balance in favor of the Elmhurst Bank of $2804.76. Straus preserved exceptions and prosecutes this appeal therefrom. The Elmhurst Bank assigns cross errors upon the action of the court in allowing the claim of Straus upon the temporary loan.

At the times of the transactions involved in this suit, Emil Balgemann was cashier of the Elmhurst Bank, located in DuPage county, and he and Ernest Balgemann were stockholders therein; his brother, Ernest W. Balgemann, was president of the Crete State Bank, located in Will county; they both seem in some way to have been interested in or connected with the Dolton State Bank, located in Cook county; a brother, Emerick J. Balgemann, had frequent transactions with the Elmhurst Bank, as did also another brother, Ewald Balgemann; and an uncle, whose name does not appear in this record, either owned or was connected with the LaGrange State Bank in Cook County; and Straus was a stockholder in the Elmhurst Bank and in the Dolton Bank. The Crete Bank passed into the hands of a receiver early in 1909, and the Elmhurst Bank was in distress at least as early as January, 1910, and ceased to do business about July 1, 1910. The transactions between the Balgemanns were very much involved. Commercial paper, both good and bad and especially the latter, was passed back and forth from one bank to the other, sometimes for a consideration and sometimes without a consideration, sometimes with entries upon the books of the Elmhurst Bank showing what had been done, and sometimes without any entries whatever showing the ownership or the transfer of securities. “When Emil and Ernest conducted a transaction relating to the interests or assets of the Elmhurst Bank, they seldom knew, with any clearness, whether they were acting for the bank or were conducting a personal deal. The evidence of Emil and of Ernest is full of vagueness and uncertainty and shows a looseness in financial transactions which could not fail to ruin any bank, and these elements make it difficult to know how far their testimony can be relied upon. Appellant called Ernest and appellee called Emil; but appellee by other testimony, which we do believe, showed that Emil had made many untruthful statements concerning the financial transactions of the Elmhurst Bank, and where his testimony conflicts with that of others we cannot give it any substantial credence. Straus was a note broker, doing business in Chicago, and he had had financial transactions with both Ernest and Emil so far as to subject him, to some extent, to the suspicion of unreliability which rests upon the evidence of Emil and Ernest, although his testimony was much more direct and straightforward. "We have tried to test their testimony by the various facts otherwise established, and thus have sought to ascertain what the facts probably are.

On January 14, 1910, at his office in Chicago, Straus loaned some one $2,000. He testified that he loaned it to the Elmhurst Bank through Emil Balgemann, its cashier. Emil testified in an uncertain and indirect way, that he told Straus he was owing the Elmhurst Bank and was getting this money for himself to fix up his own account with the bank. They disagree as to who was present. Straus testified that Emil and Q-eorge Thoma, then a director and later the cashier of the Elmhurst Bank, came to him together and applied for a loan of several thousand dollars for the bank and that he told them he could not let them have that much, but that he would see what he could do and for them to come back later, and that afterwards, on the same day, Emil came alone and the transaction was completed. Emil testified that Thoma did not go with him, but that his brother, Ewald, did at the first visit and that at that time the $2,000 was loaned, and that he afterwards, later in the day, went back to talk it over. Ewald was not a witness. Thoma testified that he was not there at that time, but that he was there at a later date, which he was afterwards able to fix as January 22, when he and Emil sought in vain a loan of $5,000 or $10,000 from Straus. In this respect, Straus appears to be in error as to the person present at the first meeting. The fact was that a heavy draft had been drawn the day before by the Elmhurst Bank upon the Fort Dearborn National Bank of Chicago in favor of either the uncle of the Balgemanns or the LaGrange Bank; and the Elmhurst Bank, which did its business through the Fort Dearborn Bank, did not have funds enough on deposit in the Fort Dearborn Bank to meet this draft and the other checks which were liable to come in during that and the succeeding day, and it was necessary for the Elmhurst'Bank to get money from some source. Straus testified that Emil made the application to him in his capacity as cashier of the Elmhurst Bank. Emil offered to Straus a lot of commercial paper as security for the proposed loan, and this commercial paper was all the property of the Elmhurst Bank. Straus drew and delivered to Emil his check for $2,000 payable to the Elmhurst Bank, and Emil, as cashier of that Bank, endorsed the check and deposited it immediately in the Fort Dearborn Bank to the credit of the Elmhurst Bank. A very few days later Emil asked for and Straus let him take away two of the mortgages constituting said securities. A little later, on January 21, Emil came to Straus and said he had an opportunity to sell the remaining securities (the face value of which was more than $2,000), and that if Straus would let him take them, he would at once pay him the $2,000 with the proceeds of the sale of said securities. Strans thereupon delivered to Emil the remaining securities and Emil gave therefor the receipt of the Elmhurst Bank, by Emil Balgemann, its cashier. The bank did not pay the loan at once as promised. In February Straus called for payment and the bank sent him its draft for $500 as part payment. Up to this point >all the papers show a transaction between Straus and the Elmhurst Bank. Thereafter, on subsequent demands by Strans for payment, Emil sent successively three of his personal checks, amounting in all to $500 as part payment on the loan. On May 24, a meeting of the stockholders of the bank was held, which Straus attended. He claims that a schedule of the assets of the hank was read, but that no itemized schedule of liabilities was read, but that only the total of liabilities was stated. The preponderance of the evidence is that a statement of liabilities was read. This $1,000, due to Straus, was not contained in said list of the liabilities of the bank, and Straus said nothing publicly about it. Before the meeting began Straus and Emil had a conversation, in which Emil claims that he told Straus not to bring up that matter and he would see it paid, and that Straus said if Emil would pay it, it was all right. Straus did not make known his claim for $1,000 to any other officer of the bank till two months or so before this suit was begun. The fact that the last three payments were by the personal 'check of Emil and that Straus did not state at the stockholders’ meeting that the bank owed him $1,000 are the only circumstances tending to show that Straus did not loan the money to the bank. If Straus loaned the money to the bank in the first instance, the fact that Emil afterwards made some of the payments with his personal check would not relieve the bank from liability for the rest of the debt. Emil was owing the bank all the time and any payment he made on a debt which the bank owed would reduce his indebtedness to the bank. At the stockholders’ meeting no one was called upon to present his claim against the bank and his silence would not discharge the debt. From the facts that Emil obtained the loan upon securities owned by the bank, that the check was made payable to the Elmhurst Bank, that it was deposited to the credit of the Elmhurst Bank, that Emil receipted as cashier for the securities when he received them back, and that the first payment was made by a draft drawn by the Elmhurst Bank, we are clear that this was a loan by Straus to the Elmhurst Bank, which it has never paid, and that the conclusion of the court in favor of the plaintiff on that subject is sustained by the clear preponderance of the evidence. But further, we do not find that appelleé preserved in the bill of exceptions any exception to the finding or judgment of the court allowing to appellant the unpaid balance of said loan, and therefore appellee has not preserved that ruling for review.

From the organization of the Elmhurst Bank till at least after it became financially embarrassed, if not till the present time, it has always held the note of Ernest "W. Balgemann for $3,500. He subscribed for a majority of the stock and was not able to pay for it and so immediately borrowed $3,500 of what he had paid in and gave a note for that amount, which was renewed from time to time and stood on the books of the bank as one of its assets. In the fall of 1908 the Crete Bank, of which Ernest was president, was in embarrassed circumstances, and Emil said to Ernest that the note of the latter did not look good on the books of the Elmhurst Bank, and that he had better get some other note to take its place. On October 30,1908, Emil and Ernest went to the office of Straus, and Straus then drew a note for $3,500 bearing that date and due in one year, payable to the order of himself, and he signed it and endorsed it in blank and Emil carried it away. The testimony of Emil differs from that of Straus and Ernest as to what was said and as to the nature of the transaction, and the details were drawn out gradually on the various examinations of these witnesses at different dates as the trial was resumed from time to time. Emil claims that Ernest asked for the note as an accommodation to Ernest and that Straus delivered the note to Ernest and Ernest delivered it to Emil. Straus claims that Emil, as cashier of the bank, asked for the note to take the place of the note of Ernest on the books of the bank for the time being. Ernest appeared to be somewhat uncertain, bnt finally concluded that it was his best recollection that the note was delivered to Emil and not to himself. We are satisfied from the evidence that Straus was assured by both of them that he should not be liable on the note, and that he should not be required to pay it, and that it would be taken care of by the others, and that it was to be used temporarily to make the books of the bank look better than they did while showing the note of Ernest W. Balgemann as an asset. Whether this meant, look better to the bank examiner or to the directors or to the stockholders or to the depositors and patrons of the bank, does not appear. Two weeks later, on November 14, 1908, on the discount register some name of the maker of a note for $3,500 was erased and the name “B. F. Straus” was written over it. It appears to be the fact that the name so erased was “E. W. Balgemann.” The note of Ernest W. Balgemann, however, remained in the bank, though eliminated from its discount register. The note of Straus became due October 30, 1909. Shortly thereafter by letter and by telephone, communications passed between Straus and Emil about the note. Straus and Emil do not wholly agree in their testimony as to what these communications were. We are satisfied that Straus demanded Ms note; that Emil told Mm it had been taken ont of “the bank, cancelled and placed in Emil’s private box; that on another demand a little later, Emil repeated the same statement and said it was marked “Paid” and was in his private box, and that it was so late in the afternoon he conld not get it, bnt he would bring it in or send it in the next day; and that Emil repeated this statement a little later, these conversations being a day or so after the note fell due and running along for a month afterwards. Straus is confirmed in his testimony by the fact that on the discount register at the proper place on the line devoted to this note, the word “Paid” was at some time written and was afterwards erased, but that notwithstanding the erasure the outlines of the word can still be seen. Ernest testified that Straus told him he was worried about the note, and that he thereafter questioned Emil and that Emil told him that Straus’s note had been taken out of the bank and cancelled and marked “Paid” and put away among Emil’s private papers in his private box. Another fact confirms the testimony of Straus on this subject. As already stated, on January 14, 1910, Emil and either Thoma or Ewald went to Straus to get a loan for the Elmhurst Bank. At that time the Elmhurst Bank was seriously embarrassed. Other proof shows that about the same time other officers of the bank borrowed other sums of money from other parties for the bank. The note of Straus was two months and a half past due. Payment on it had not been and never was demanded. If Emil supposed that Straus was liable upon this note, he would naturally have asked Straus for a payment on the note, instead of asking him for a loan. Emil admits that he did not ask him for payment and says he never thought of it. He was cashier. He was anxiously hunting for money, and the fact that he did not even think of asking Straus to pay this note is strong proof that when the note was given it was agreed that Straus should never be called upon to pay it. Straus testifies that on that day he asked Emil for the note, and that Emil said he forgot to bring it in. Emil does not deny this. It is admitted by all that Straus did not receive any money 'when he signed and delivered this note, and whether he delivered it direct to Emil, as both Straus and Ernest testify, or whether he handed it to Ernest and Ernest handed it to Emil, as Emil testified, it is clear that Emil was acting as the cashier of the bank and that it was agreed by all of them that Straus should never be called upon to pay the note, but that the others would take care of it, and that its only purpose was to make the books of the bank look better for the time being by causing the name of Ernest, involved in the Crete Bank failure, to temporarily disappear therefrom. There is but one circumstance against this conclusion. When Straus gave this note he took from Ernest a like note of that date for $3,500, which note has never been returned to Ernest. Ernest was afterwards put into involuntary bankruptcy and it does not appear that anything was ever done with this last named note. No one explains why Ernest gave it or Straus took it. Of course, if the bank had sold and endorsed Straus’s note to a third party before maturity for' value, such purchaser could have enforced the note against Straus as accommodation paper, and we think it a fair conclusion that Straus took this note from Ernest to protect him in case some third party should obtain and enforce the note. But the bank did not transfer the note, and it is the bank and not an innocent holder before maturity that is now prosecuting this cross action against Straus on the note, and the fact that the bank is embarrassed does not alter the legal rights of the parties. Its officer, acting for it and seeking to promote what he conceived to be its interests, took this note with full knowledge that it was given without consideration and upon an express agreement that Straus should never be called upon to pay it.

When Straus gave this note “The Negotiable Instruments Law” of 1907 was in force and the rights of these parties are governed thereby. Section 16 thereof is as follows:

“ § 16. Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto. As between immediate parties, and as regards a remote party other than a holder in due course, the delivery, in order to be effectual, must be made either by or under the authority of the party making, drawing, accepting or indorsing, as the case may be; and in suela ease the delivery may be shown to have been conditional or for a special purpose only, and not for the purpose of transferring the property in the instrument. But where the instrument is in the hands of a holder in due course, a valid delivery thereof by all parties prior to him so as to make them liable to him, is conclusively presumed. And where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved.”

The first sentence of section 58 of said Act is as follows :

“ § 58. In the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were non-negotiable. ”

Garfield National Bank v. Colwell, 10 N. Y. Supp. 864, was a suit upon a promissory note, made by the defendant to the order of Hepworth & Company by an employe of that company, which the defendant signed upon an arrangement with Hepworth & Company that he should incur no liability by signing the note, and the proof was that the defendant took the note, endorsed by Hepworth & Company, to the cashier of the bank, and told the cashier that Hepworth & Compaiay desired to hav.e the note discounted and that he had told the vice-president of the bank that he had been informed by Hepworth & Company that he, the defendant, would incur no liability, and tbe cashier replied that be so understood it, and tbe defendant then banded him tbe note. Tbe defendant received none of tbe proceeds of tbe note nor any consideration for its signature. Tbe court said:

“Tbe mere fact that it was accommodation paper would in no way affect tbe right to recover, because tbe giving of tbe note, as an accommodation, if no recovery could be bad upon it by tbe bolder of tbe note, would not be any accommodation to anybody, because nobody could use it. In tbe case at bar, however, tbe proofs show a different state of affairs; not only that it was accommodation paper, but also that there was a distinct understanding between tbe maker of tbe note and tbe payee that tbe maker should incur no liability by the signing of tbe note. The case of Benton v. Martin, 52 N. Y. 573, and Seymour v. Cowing, 40 N. Y. 532, establish tbe proposition that a person has tbe right in tbe case of an unsealed instrument to impose conditions tbe. observance of which is essential to its validity. This rule is tbe foundation upon which those cases rest which bold that, where there has been a diversion of tbe note, unless tbe bolder is a bona fide bolder without notice be cannot recover. In tbe case at bar it appears that tbe plaintiff knew that it was the understanding of tbe defendant that be should not under any circumstances be liable upon tbe note. Knowing that this was tbe agreement between tbe parties, it is difficult to see bow with such knowledge it could acquire tbe right to enforce that which it knew bad been agreed should not be enforced.”

Higgins v. Ridgway, 35 N. Y. Supp. 944, was a like action against tbe maker of a renewal note, where tbe defendant bad received no benefit from the original note or any of its renewals, and tbe defendant testified that tbe president of tbe bank, both when be signed tbe first note and when be signed tbe last renewal, told him that be took no risk in signing it and would not be held on tbe note. Tbe jury found this testimony to be true. Tbe court said:

“The agreement testified to by the defendant, and found by the jury to have been made, was a defense to the note. Bank v. Colwell, 57 Hun 169, 10 N. Y. Supp. 864. There is no distinction, in principle, between the case cited and the one at bar. This note was never delivered by the defendant, nor received by the bank, for the purpose of charging the defendant with liability thereon. ’ ’

But appellee contends that under the Illinois authorities the note sued upon in the cross action cannot be shown by oral testimony to have been conditional. We are of opinion that the sections of the Negotiable Instruments Law above quoted must be held to change the rule in this State. To require the conditions attach ing to the delivery of the note to be shown by documentary evidence would in our judgment entirely defeat the purpose of the sections above quoted. We are of opinion that where the circumstances described in said sections exist, it is the intention of said statute that the actual facts may be shown by oral testimony. It follows that in our opinion the agreement by the cashier of the Elmhurst Bank that. Straus should not be held liable upon this note and should not be required to pay it is binding upon the Elmhurst Bank and it cannot recover thereon in violation of the terms of said agreement.

The effect of our decision is to affirm the trial court in allowing the unpaid balance due appellant ou the $2,000 loan, and to reverse it as to the set-off allowed to appellee on the $3,500 note; but, as the figures allowed for each are not given in the judgment, we cannot affirm one part and reverse the other, but find it necessary to reverse the entire judgment and to render judgment here for appellant and against appellee for the amount of the unpaid balance due on the $2,000 loan, with interest at 5 per cent per annum, under that provision of section 2 of the Interest Act which allows interest at 5 per cent on money lent by oral contract. We are authorized to compute the interest under our decision in Ives v. Muhlenburg, 135 Ill. App. 517, and the cases there cited, to which may be added Boyle v. Carter, 24 Ill. 49, City of Chicago v. Wheeler, 25 Ill. 396, and United Workmen v. Zuhlke, 129 Ill. 298. We find due on said oral loan, principal and interest, the sum of $1095.

The judgment is therefore reversed and judgment here for appellant and against appellee for $1095, with execution.

Reversed and judgment here.

Finding of facts,to be incorporated in the judgment: We find that the Citizens State Bank of Elmhurst, appellee, is indebted to B. F. Straus, appellant, for the balance due upon an oral loan of money in the sum of $1095, and that said Straus is not indebted to said Bank upon the note relied upon in the plea of set-off, because said note was executed by Straus without consideration and was executed by Straus and received by the Bank upon an agreement that Straus should never be called upon to pay the note, and it therefore is not enforceable against him at the hands of the Bank.


text:
    Malinda Falor et al., Appellants, v. Nicholas Doubet et al., Appellees.
    Gen. No. 5,488.
    1. Administration of estates—how discovery of assets obtained. If the probate court has jurisdiction, discovery of assets may be had by citation under section 81 of the Administration Act; a bill in chancery is not an alternative remedy, especially where it waives answer under oath.
    2. Partition—what question may be adjudicated in. In a partition proceeding the court has jurisdiction to determine whether rents have been collected and improperly retained by one of the parties in interest.
    3. Pleading—effect of inconsistencies. In chancery if a bill be totally inconsistent with respect to a particular transaction it is subject to special demurrer.
    4. Pleading—when allegations insufficient in chancery. Equitable relief will not be predicated upon a bill the allegations of which are uncertain, obscure and contradictory.
    Bill in equity. Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    Sheen & David, Cameron ¡& Cameron and L. 0. Eagleton, for appellants.
    Ira J. Covey and Judson Starr, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

The court below sustained general and special demurrers to an amended hill in equity, filed by the five daughters of Joseph Doubet, deceased, against the sons of said deceased and the wife of one of said sons and the children of a deceased daughter and the administrators of the estate of said Joseph Doubet, deceased, and the administrator and heirs at law of one son, who was deceased, and dismissed said bill without prejudice. Complainants below, by two separate appeal bonds, each executed by a part of the complainants, bring the decree to this court for review. The bill is very lengthy, and it seems to us unnecessary to set out in this opinion the allegations thereof. The bill contains many such words as “confederated and conspired,” “fraudulent purpose,” “falsehoods,” “conspired by threats of violence, intimidation and other arts and practices,” “recommendations,” “persuasion,” “advice,” “coercion,” “defraud,” “undue influence,” “fraudulent conduct,” “fraudulently concealed,” '“fraudulent conspiracy,” “fraudulently cheated,” “co-conspirators,” “friendship, arts, practices and devices, the exact nature and character of which are not fully known to these complainants; ’ ’ but it is exceedingly meagre in the statement of any facts to support such language. In many respects the allegations are inconsistent. Upon an examination of the amended bill, our conclusion is that there is no subject-matter embraced in the bill in respect to which the bill is not subject to some one or more of the grounds of special demurrer alleged against it.

Joseph Doubet died intestate on or about December 19, 1909, a resident of Peoria county. On January 6, 1910, Ida Mitchell, one of the complainants, and Edward Doubet, one of the defendants, were appointed administratrix and administrator of the estate of the said Joseph Doubet, their father, and qualified and were still acting in that capacity when this amended bill was filed. The bill shows that they received over $80,000 in cash and that a considerable portion thereof has been distributed among the complainants and defendants as heirs at law under the orders of said probate court. Said probate court still has jurisdiction of said estate. There are still pending before said court two claims against said estate, which are contested, one of which is a claim in favor of Nicholas Doubet, one of tbe defendants, for $29,700. The bill alleged in an indefinite way that there are outstanding in the hands of said sons or some of them many papers evidencing indebtedness from some of said sons to their father or to his estate. Section 81 of the Administration Act gives the county court the fullest authority to cite such parties into court, examine said parties on oath, hear other evidence, and make such order in the premises as the case may require. The authority of the county court under such a citation is fully recognized in Martin v. Martin, 174 Ill. 371, and in many other cases. The probate court act extends that jurisdiction to the probate courts of this state. The probate court of Peoria county is in possession of full jurisdiction over this estate and has partially completed the administration thereof. It is not alleged that the complainants have ever applied to that court to cite the defendants before it and to ascertain the facts about these various alleged papers. The bill alleges in the alternative that there were at least five different papers, acknowledging advancements of sums of $5,000 each to be treated as advancements to said sons upon the settlement of the estate, and that said papers are either in the possession of some of said sons or have been destroyed. The bill does not deny but what complainants knew these facts before any distribution by the probate court among the heirs. The probate court therefore had power to cite these sons before it, ascertain the facts, bring such advancements, if they really existed, before the court and have them added to the moneys on hand, and to make a distribution of the whole sum. It is not claimed that this jurisdiction of the probate court has ever been invoked. The bill also claims that deceased had much grain, hay, hogs, cattle, horses, farm implements, promissory notes, certificates of deposit, and other valuable assets, for which the defendants or some of them should account. The statutes above cited gave the probate court jurisdiction to ascertain tbe facts in regard to this property and to order it delivered to tbe administrator. An action of replevin therefor brought by tbe administrators would give an adequate remedy at law. Complainants bave framed their bill as if for a discovery, but they waived tbe oath and they thereby practically destroyed tbe efficiency of the discovery alleged to be sought and can obtain much less information by an answer in tbis case than by proceeding under a citation from tbe probate court.

Tbe bill shows that a partition suit was pending between these heirs at law in tbe circuit court of Peoria county, and that in that suit a decree bad been entered and under that decree a large amount of tbe real estate left by deceased has been sold and that a part of tbe proceeds bave been divided between tbe heirs and that said cause is still pending for a determination as to tbe rents of said real estate for one year. Tbe bill seeks to charge tbe defendants or some of them with tbe rents of tbis property for many years prior to tbe death of tbe father. No reason is perceived why that matter should not bave been submitted to tbe jurisdiction of that court in that cause. Indeed, for all that tbis bill shows, tbe claim here made may bave been made in that cause and may bave been there defeated, except as to' one year. Tbe bill here does not allege who were tbe complainants in that suit and it may be that tbe complainants here were tbe complainants there. If so, they should bave set up all their claims to rent in that cause and bad them adjudicated before distribution was made, and there is nothing here to show but what they can still make tbis claim in that cause. If they were not complainants there, but defendants, still they bad a right to there present any question concerning said rents, so far as tbis bill discloses.

Tbe allegations of tbis amended bill are contradictory in various respects. A single example will suffice. The hill alleges that for ten years before his death, their father was in such a condition of mind and body as to be incapable of transacting business, and it assails various transactions done in his name during that period, because of that incompetency. Yet elsewhere it alleges that in 1907 their father determined to make advancements to all his children of the value of $5,000 to each, and that he deeded to each son real estate worth $5,000; that he was intending to give each daughter $5,000 in money, and that the sons dissuaded him from paying that to his daughters during his life time; and the daughters seek by this bill to affirm and carry out and finish executing that purpose of their father’s either by treating each of these deeds to a son as an advancement to him of $5,000, and having the same brought into hotchpot, or by having each daughter paid $5,000 to complete the intention of their father formed in 1907. We do not think that complainants can be heard to say in the same bill that the intention formed by their father in 1907 shall be carried into complete execution by the court and also say that at the same time he was incompetent to transact any business. If he was then competent to form the purpose of giving each daughter $5,000 no fact alleged in the bill shows why he was not also competent to change his mind.

It appears that one son took possession of a piece of land in 1888, which his father then owned; that his father executed a deed to him of said land in 1888; but it is alleged that his father did not deliver the deed to him and that, after the father became incompetent, it was in some unknown way placed upon record. If this son owed his father for the rent of these premises at the time of his death, the administrators had a complete remedy at law by an action of assumpsit to recover such unpaid rents. If the deed was never actually delivered, no reason is seen why this land should not have been embraced in the partition suit. The bill in this case does not contain any .prayer that that deed be set aside. If the meaning of the bill is that this land was intended as an advancement to that son, then there was an adequate remedy in the probate court.

This bill is really an effort by certain heirs at law to wrest from the probate court a jurisdiction which it is now exercising and to remove the further administration of the estate into equity. In Moore v. Brandendurg, 248 Ill. 232, there had been no administration; the deceased left no debts and the funeral expenses had been paid. Here administration is in progress, one of the complainants is one of the administrators, claims are pending against the estate and not yet adjudicated, and the probate court still has in its control a large sum of money. The matters here presented could have been, or can to a very large extent be, adjudicated in said probate court, and the remainder of the matters here involved could have been or can be adjudicated in the partition suit, which is still pending between the parties to this cause; and as to the other matters involved herein, the allegations of the bill are so uncertain, obscure and contradictory as not to furnish a basis for equitable relief.

The decree is therefore affirmed.

'Affirmed.