text:
    Marshall Field et al. v. Lavina A. Herrick et al.
    1. Landlord and tenant — Possession of premises. — If Aleases certain premises of B, but at the commencement of his term a former occupier, C, is in possession, and such possession is rightful, as between such occupier and B, the lessor, so that A can not maintain an action for forcible detainer or ejectment against C, B would be barred of a recovery of the rent from A.
    2. Remaining in possession after lease expires — Implication.— Where there is a lease for a year, and, by the assent of both parties, the tenant continues in possession afterward, then, in the absence of any new agreement, the law will imply a tacit renovation of the former one. Where the lease is for any period less than a year, the holding will be construed as being for another term of the same length of time and, in all cases, as upon the same terms as to the amount of rent and times of payment, unless there be some act of one or both the parties to rebut such an implication.
    3. Where acts rebut such implication. — Where acts are shown which would suffice to rebut the implication of such renewal, but which fall short of a new agreement, then the tenant would be in the rightful possession under a tenancy subject to be terminated by thirty days notice in writing.
    4. Lease within Statute oe Frauds. — Where a tenant in possession of premises, made in December, 1877, an agreement for a new lease*of the premises for at least a year from January, 1878, at a specified rent to be paid monthly, and such agreement was not in writing, and therefore within the Statute of Frauds, and the tenant was in possession under such agreement. Held, tha't while such agreement would he void as to the duration of time, it would govern as to the amount and time of payment of rent, and as to notice to quit. Under such agreement providing for the payment of rent monthly, the lessee would become tenant from month to month, and would he entitled to thirty days notice in order to terminate said tenancy.
    5. Instruction — A gency — Ratieication.—Where the evidence clearly showed that a certain lease was made by a tenant’s clerk, without any authority, while the tenant was absent in Europe, and that the landlord’s agent had notice of such want of authority at the time he procured the lease, and that such lease was not accepted or ratified by said tenant, it was error for the court to refuse to give an instruction upon those points.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.
    Opinion filed March 5, 1884.
    This suit was brought below by the Herricks - against Field & Leiter, upon a covenant to pay rent in a lease, dated Feb. 2, 1878, from the former to the latter of a certain store, situate upon "Wabash Avenue, Chicago, designated as numbers 130 and 132, for the term of two years, commencing March 1, 1878; the lessees covenanting to pay as rent therefor, the shm of sixty-five hundred dollars, payable in specified monthly installments. The action being covenant, the defendants pleaded non estfaotxim and several special pleas, one of which was in effect, that the defendants were, on and after said first day of March, the day of the commencement of their term, kept out of and prevented from taking possession of said demised premises, by reason and in consequence of said premises being then and for a long time thereafter in the possession of one John Cox, as tenant of said plaintiffs, with1 a right of possession derived from said plaintiffs, which was superior to that of defendants, under their said lease, wherefore they repudiated said lease. Issue having been taken on that and other special pleas, the case came on for tidal before a jury. The plaintiffs, having given in evidence their lease to defendants and computation of the sum claimed to be due, rested on their part.
    The defendants proved that Aug. i, 1877, the plaintiffs made a lease of said premises to Cox, from that date to Dec. 31st same year, at a rental of $1,000 for the term; that Cox paid that sum in advance and took possession; that in December, before the expiration of said term, Cox had determined to go to Europe to buy goods. And he testified that before he went he made an agreement with the agent of plaintiffs for a lease of the premises for a year, from the 1st of the then ensuing January, at a rate of rent agreed upon, payable monthly. It appeared that Cox went to Europe, leaving his store- to be carried on by employes, and so continued in possession, after said 1st of January, 1878, and for several months after March 1st, when defendant’s term commenced, and that no notice was given him by plaintiffs of the termination of his tenancy; that plaintiffs received rent from him in February, 1878. To meet the point of want of notice, the plaintiffs offered and the court admitted in evidence against the defendant’s objection, an instrument purporting to be a lease between plaintiffs as lessors, and Cox as lessee of the said premises, for a term from January 1, 1878, to February 28, 1878, at a rental of $200 for the whole term, payable Feb. 1, 1878. This instrument did not purport to have been made by Cox in person, but by one Blattner as agent. It was not a mere lease, but the instrument contained a variety of severe collateral agreements on the part of Cox, the lessee. It appeared that, at the time of the making said instrument, Cox was absent in Europe buying goods; that Blattner was a clerk in his store, a young man who had not attained his majority; that an agent of the plaintiffs induced him to sign it, Blattner telling him, at the time, that he had no authority from Cox for so doing, and it appeared by uncontradicted evidence that Blattner had no authority from Cox for that purpose. Nor was there any evidence of ratification of Blattner’s act by Cox, with knowledge of all material facts, sufficient to justify the submission of that question to the jury. On behalf of plaintiffs, the court, among others, gave to the jury the following instruction:
    4. “ An agent’s authority to do an act may be either given in advance, or made sufficient by subsequent ratification. If Cox, with full knowledge of its provisions, accepted the benefit and advantage of the short lease from January 1st to March 1st, signed by Blattner, and paid the rent according to it, he had no right to repudiate its conditions and terms.”
    On the part of defendants, the court was asked to give the following:
    11. “The jury are instructed that if,they believe from the evidence that the lease offered in evidence from plaintiffs to Cox, dated January 3, 1S78, and expiring February 28, 1878, was executed by Blattner without any authority from Cox, and that Myers had notice of such want of authority at the time Blattner signed said lease, and that such lease was not accepted or ratified by said Cox, then such lease was not binding upon said Cox, and should not be regarded by the jury in their verdict in this case.”
    But the court refused to give the same, and no instruction of similar import was given. There was judgment for plaintiffs for $3,236.68, and defendants bring the record to this court by appeal.
    Mr. John H. Thompson and Mr. John F. "Wilson, for appellants;
    as to a lessor who has executed and delivered alease, being bound to give the lessee possession of the demised premises when they are wrongfully withheld, cited Coe v. Clay, 5 Bing. 440; 15 E. C. L. 660; Jenks v. Edwards, 11 Exch. 775; Cozens v. Stevenson, 5 S. & R. 420; Gardner v. Keteltas, 3 Hill, 330; Wood v. Hubbell, 5 Barb. 601; Cleves v. Willoughby, 7 Hill, 83; Hay v. Cumberland, 25 Barb. 594; Trull v. Granger, 8 N. Y. 115; L’Hussier v. Zallee, 24 Mo. 13; Hughes v. Hood, 50 Mo. 350; Andrews v. Woodcock, 14 Ia. 397; Manville v. Gay, 1 Wis. 250; Eldred v. Leahy, 31 Wis. 546; Mason v. Leitz, 36 Ind. 516; Boston v. Jones, 2 Iredell, 350; Gazzolo v. Chambers, 73 Ill. 75.

      When a tenant enters upon and occupies premises under a parol agreement which is void or voidable under the Statute of Frauds, he becomes a tenant from year to year or from month to month, and can not be dispossessed without a written notice: Brownell v. Welch, 91 Ill. 523; Doe v. Bell, 5 D. & E. 741; Langhran v. Smith, 75 N. Y. 205; 1 Cruise on Beal Property, 277; Thnrber v. Dwyer, 10 R. I. 355; Morrill v. Mackman, 24 Mich. 286; Moorehead v. Watkins, 5 B. Mon. 228; Right v. Darby, 1 Term R. 155; Clapp v. Noble, 84 Ill. 62; Taylor’s Landlord and Tenant, 7th ed. S. 22.
    If a lease is kept out of possession by any act of the lessor, or any person claiming under him, the lessee may treat his lease as at an end, and is not liable for rent under his lease: Hayner v. Smith, 63 Ill. 430; Lynch v. Baldwin, 69 Ill. 210; Leopold v. Judson, 75 Ill. 536; Halligan v. Wade, 21 Ill. 470; Field v. Herrick, 10 Bradwell, 591.
    Mr. J. Y. Le Moyne, for appellees;
    that the guardian alone could make a lease as provided by law and she could not delegate her authority, cited Shonler’s Domestic Belations, 435; 2 Kent, 230-3; 2 Perry on Trusts, § 621; 1 Parsons on Contracts, 137.
   McAllister, P. J.

The authorities all agree that there is a certain obligation on the part of the lessor, implied by law, from the contract of letting real estate fora consideration paid or to be paid as rent by the lessee; but as to the nature and extent of that obligation, there is a clear divergence. In Gardner v. Keteltas, 3 Hill (N. Y.), 330, it was held that such implied obligation or undertaking did not amount to an agreement to put the lessee into actual possession; that there was no warranty implied against the acts of strangers; and that therefore, if the lessee be kept out by a former tenant ' whose term had expired, so that he was holding wrongfully, such lessee being entitled to do so, must resort to his summary remedy by forcible detainer, and get the party so holding over out of possession and himself in, and has no remedy against his lessor.

In Gazzolo v„ Chambers, 73 Ill. 75, our Supreme Court has expressly affirmed the doctrine of that case. In the former, the opinion was delivered by Kelson, C. J., and he says that he has found no decision, nor has any been referred to, going the length claimed by the plaintiff, viz., that the lessor was bound to put the lessee in actual possession of the demised premises. In the latter the opinion was delivered by Mr. Justice Scott, and he says: “The implied covenant for quiet enjoyment has never, so far as we know, been construed to embrace an obligation on the part of the lessor to place the lessee in possession of the premises. If he is kept out of possession by any act of the landlord, or by one holding a paramount title, no doubt the lessee may have an action.” The case of Gardner v. Keteltas, supra, was decided a dozen years after the case of Coe v. Clay, 5 Bing. 440; 15 E. C. L. 660, holding a different doctrine; and the very learned and able judge who delivered the opinion in the former case, did not find it, nor was his attention called to it by either of the distinguished counsel engaged in the case. In Coe v. Clay, the defendant had agreed to let to plaintiff certain premises, and the action was for letting him into possession, which a preceding occupier having wrongfully refused to quit, the defendant was unable to do. It was argued that the lessee should have proceeded to get the preceding wrongful occupier out. The court held that, “ he who lets, agrees to give possession, and not merely a chance of a law suit.” That rule was followed in Jenks v. Edwards, 11 Exch. 775; See, also, Wood v. Hubbell, 5 Barb. Sup. Ct. 601; S. C. 10 N. Y. 479; Hay v. Cumberland, 25 Barb. 594; Trull v. Granger, 8 N. Y. 115; Hussier v. Zallee, 24 Mo. 13; Hughs v. Hood, 50 Mo. 350; Andrews v. Woodcock, 14 Iowa; Manville v. Gay, 1 Wis. 250; Eldred v. Leahy, 31 Wis. 546. In Mason v. Seitz, 36 Ind. 516, the court says: “The placing of the defendants in possession and enjoyment of the real and personal property described in the contract, was a condition precedent to the right of the plaintiff to recover rent.” In Posten v. Jones, 2 Iredell’s Eq. 350, the lessee was kept out by a paramount title. Puffin, Ch. J., said: “ In every lease of land, the lessor is so far bound by implication for the title and enjoyment by the lessee, that his right to the rent is dependent thereon. * * The rule is founded on that principle, so consonant to natural justice, that one should not be compelled to pay for that which, though contracted for, he never got.”

In the case at bar, the defendants, who are here sued for rent, contracted for the possession of the demised premises, but which, through no fault on their part, they never got, because Cox, a former occupier, was in possession, and refused to quit; according to the English and several American cases above cited, this action for rent could not be maintained, even if Cox’s possession was wrongful because, as it is held, the plaintiffs as lessors, were under an obligation, implied by lawr, to give the defendants, the lessees, possession, instead of the chance of a law suit; and the performance of that obligation would be a condition precedent to their right to the rent.

But according to the other class of cases, such as Gardner v. Keteltas, 3 Hill, and Gazzolo v. Chambers, 73 Ill., supra, if the possession of Cox was rightful as between him and plaintiffs, so that defendants could not have maintained an action for forcible detainer or ejectment against him, the plaintiffs would, in such case, be barred of a recovery of the rent. Was it rightful? Cox took possession August 4th, and held under a written lease from plaintiffs, which expired December 31, 1877; he then held over, up to and months after, March 1, 1878, the time when defendants’ term commenced. The evidence clearly shows that Cox so held over, after the expiration of his written lease, with the assent of the plaintiffs; that his possession was lawful; that he was a tenant of plaintiffs, and not a trespasser, under any aspect of the case; and the plaintiffs were in no position, on the 1st day of March, 1878, to legally require Cox to quit, even if they had not made the lease in question to defendants. What was the relation between plaintiffs and Cox, at the time, in respect to his possession? He had held under a written lease running from Aug. 4 to Dec. 31, 1877, and held over with the implied assent of plaintiffs, his lessors. How, it is a general rule, that where there is a lease for a year, and by the assent of both parties the tenant continues in possession afterward, then, in the absence of any hew agreement, the law will imply a tacit renovation of the former one.’ Right v. Darby, 1 Durnf. & East, 159. But the former lease, under which Cox held, was for a period less than a year. In Pickett v. Ritter, 16 Ill. 96, the rule in such case is stated thus: “ Where the lease is for any period less than a year, the holding will be construed as being for another term of the same length of time; and in all cases, as upon the same terms, as to the amount of rent and times of payment, unless there be some act of one or both the parties to rebut such an implication.” McKinney v. Peck, 28 Ill. 174; Clapp v. Noble, 84 Ill. 62.

The renewal of the former lease between plaintiffs and Cox would have given the latter a term extending over two months beyond March 1, 1878. But if acts were shown which would suffice to rebut the implication of such renewal, but which fell short of a new agreement, then Cox would be in the rightful possession, under a tenancy subject to be terminated by thirty days notice in writing as provided by our statute. Then, if no such notice had been given before said 1st day of March, he was not subject to ouster by any legal proceedings.

There is still another aspect to the case. Cox testified, and was strongly corroborated by circumstances, that in December, 1877, before the expiration of his written lease, he made ail agreement with plaintiffs, through their authorized agent, Myers, tor a lease of the premises for at least a year from January 1, 1878, at a specified rent to be paid monthly. That agreement may have been within the Statute of Frauds; if not in writing, it clearly was. But even if it were, if Cox was holding under it, such agreement could not be wholly disregarded on the trial of this case. The agreement would be void as to the duration of time, but would govern as to the amount and time of payment of rent, and as to notice to quit. Doe, ex dem. Riggie, v. Bell, 5 Durnf. & East, 471; Laughran v. Smith, 75 N. Y. 205.

Under the decisions in this State, the agreement providing for the payment of rent monthly, Cox became tenant from month to month, and was entitled to the thirty days notice in writing in order to terminate such tenancy. Warner v. Hale, 65 Ill. 395; Brownell v. Welch, 91 Ill. 523.

The evidence affirmatively shows, and there is none to the contrary, that the plaintiffs gave Cox no notice of the termination of his tenancy, and he continued thus in possession until long after March 1, 1878, when defendants should have had possession. In respect to said agreement, the court, at the instance of plaintiffs, gave to the jury this instruction: “ Even if the jury believe that E. B. Myers agreed in December, 1877, to give Cox a lease for a new term to begin after January 1, 1878, such agreement was void, not binding on the plaintiffs, and gave no right to Cox to remain in possession, and is no defense in this action, unless after the 1st day of January, 1878, the plaintiffs accepted rent under said agreement.”

The evidence clearly shows, and is undisputed, that Myers had authority from the plaintiffs to make such an agreement, and the instruction contains no hypothesis as respects that point. Heither does it contain any hypothesis as to whether the agreement was in writing or not, by its terms to be performed within a year from the time of making. We are, therefore, unable to determine upon what ground the court assumed to tell the jury, as matter of law, that the agreement was void, not binding on the plaintiffs, and gave no right to Cox to remain in possession, and was no defense in the action. If the court so assumed because the agreement was within the Statute of Frauds, the conclusion was, as we have endeavored to show, and as the authorities do show, wrong, and there was a clear misdirection of the jury. If within the Statute of Frauds, Cox’s possession under it would be rightful, and he would be tenant from month to month until the plaintiffs terminated that tenancy by the requisite notice. About February 1, 1878, the plaintiffs received from Cox two hundred dollars upon rent accruing after January 1, 1878. There is no doubt but Oox paid it under that agreement, while the plaintiffs undertook to make another application of it. So they sought to obviate the necessity of the thirty days notice, and the effect of such payment of rent, by introducing in evidence an instrument purporting to be a lease from them to Cox, from January 1, to February 28, 1878, at a rental of two hundred dollars for the term, when the actual rental value was more than double that amount. Looking at the circumstances attending the transaction of bringing that so-called lease into existence, and the apparent motives for the act, we can not but regard it as partaking much more of the character of a poorly disguised juggle, than of an actual agreement, of which voluntary consent, manifested in some manner recognized by law, is an indispensable basis.

The alleged execution of the instrument on the part of Cox was procured by Myers, the agent of the plaintiffs, by inducing Blattner, a young clerk of Cox’s, to sign it on his behalf while Cox was absent in Europe purchasing goods, the clerk having no authority from Cox and expressly telling Myers at the time of signing it for Cox that he had no authority to sign it.

The.evidence clearly shows that Cox, at no time after being apprised of the act, intended to ratify, but that he did everything possible to repudiate it. The only act on the part of Cox which plaintiffs relied on as tending to show ratification was the payment, February 1, 1878, of two hundred dollars as rent, and which would scarcely cover the rent at the proper rate for January alone. That was paid by his clerk while Cox was absent as above stated. His directions to the clerk were to pay the rent under tíre agreement for a lease made in December, and he never consented that it might be applied on the so called short lease.

The court below gave plaintiffs’ fourth instruction respecting the ratification by Cox of the short lease, but refused the eleventh asked by the defendants, that “ If the jury believe from the evidence that the lease offered in evidence from plaintiffs to Cox, dated January 3, 1878, and expiring February 28, 1878, was executed by Blattner without any authority from Cox, and that Myers had notice of such want of authority at the time Blattner signed said lease, and that said lease was not accepted or ratified by said Cox, then such lease was not binding upon said Cox and should not be regarded by the jury in their verdict in this case.”

Manifestly that instruction should have been given. For the errors indicated, the judgment of the court below will be reversed and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Per Curtail Per Curiam.

license: Public Domain

text:
    G. D. Henning, Guardian, etc., v. Gilbert Eldridge.
    Settlement of q-uardian’s accounts. — After a careful consideration of all the evidence the court is of opinion that the court below erred in charging interest on the $1,500 from June 1, 1866, instead of from July 29, 1S67, and that whenever the Stewart note was paid or so considered, the settlement of the principal interest due on it at that time would he chargeable to appellant and six per cent, interest with annual rests.
    Appeal from the Circuit Court of Kendall county, the ITon. C. W. Upton, Judge, presiding.
    Opinion filed July 27, 1883.
    Mr. A. C. Little, for appellant;
    as to penalty imposed upon guardian for failure to report, etc., cited Bond v. Lockwood, 33 Ill. 212; Brown v. Kirkpatrick, 14 Ill. 2.
    Mr. A. J. Hopkins and Mr. N. J. Aldrich, for appellee;
    cited Ream v. Lynch, 7 Bradwell, 161; In re Steele, 65 Ill. 324.
   Per Curtail

This was a trial before the county court in the first instance upon application of appellee after he came of age, to compel settlement of appellant’s accounts, as his guardian, and afterward appealed to the circuit court, where it was tided by the judge.

The account runs 'from Dec. 1, 1863, no settlement ever having been made by the guardian either of his collections or disbursements.

"We have examined the statement of the account by the court below and find it carefully prepared and correct except as hereinafter stated.

Among the items complained of as allowed by the court are the following, to wit: Interest on $1,500, the original sum received for the sale of the ward’s real estate from June the 1st, 1866, instead of July 29, 1867, $450. The disallowance of a credit entered on the book of Stewart, rent charged to Woodruff, the step-father of the ward, with whom the ward lived, and claimed to be paid by appellant for use of ward, as of date Aug. 11,1869. The charging interest at eight percent, compounded a portion of the time on a portion of the money.

After a careful examination of all the evidence we have arrived at the conclusion that the court below erred in charging interest on the $1,500 from June 1, 1866, instead of from July 29, 1867, and on a new trial that error will be corrected; but we do not think there was any error in not allowing the claim of payment of the rent charge of $256.06, charged on the books of Lewis Stewart. The evidence on that item is confusing and unsatisfactory. Woodruff swears that he never received the money and we think he never did. This charge may have something to do with the fact that when the private sale of the real estate was made, June, 1866, the bargain that Woodruff should have* the rent for keeping the boy was considered at an end until the regular sale was made July 29, 1867, when Stewart purchased under decree of court; then some arrangement must have been made about the rent in the meantime and this entry, as we think probable, was put there for a memorandum against Woodruff in case the guardian was held to pay interest from the date o f the private sale. At all events, appellant gave no further explanation of it other than it was on the books. If Stewart turned over this rent to Woodruff after the second sale it would be natural to make this charge. If that be the case and appellant should credit himself with it he should be charged interest from date of the first sale. By striking out this claim and not charging interest the result would be, if we are correct, that the old agreement to keep the appellee for the use of the real estate would continue till July 29, 1867. Again if appellant received the rent accruing between the two sales and should be charged with it, the credit as paid by Stewart would be correct; but no such charge is made against him, and in either event no interest should be charged till July 29, 1867.

Whenever the Stewart note was paid or so considered, the amount of the principal interest due on it at that time would be chargeable to appellant, and six per cent, interest with annual rests. If the Stewart note is deemed to be paid at the date of appellee’s majority, the charge of eight per cent, on it up to that time is correct, but not compounded. The interest was not payable annually and the credits on it were immediately paid out for the benefit of the ward. If any compounding is to be done it should be done on the basis of six per cent., but all the payments for benefit of the ward should be deducted from the time they were paid. If the loan of the money to Stewart without security on real estate should be held to be a conversion of it by appellant, then interest at annual rest at six per cent, should only be charged on the amount of note from its date, and if the ward prefers that mode he may have it in that way, or claim what appellant actually received on the Stewart note, to be credited to him as here indicated. The allowance of $50 Sept. 2, ’76, and $25 in ’75 were properly allowed.

We see no other error.

For the above errors the judgment is reversed and cause remanded.

Reversed and remanded.

Per Curiam.

(Opinion on petition for rehearing filed February 5, 1884.)

Upon' the petition of appellee, a rehearing was granted in this cause. Having again considered the evidence in the record in the light of the suggestions furnished by said petition— for no farther argument has been presented — we discover no sufficient reason for any modification of the views and conclusions expressed in the opinion heretofore filed herein. And since these views charge appellant with a greater liability than he admits to be either just in fact or warranted by the evidence, we can not without his consent, upon request of appellee, give such directions to the circuit court. as will put the case at once in a condition for appeal to the Supreme Court.

Reversed and remanded.


author: Per Curiam.

text:
    Richard B. Ellis v. Frank J. Von Ach et al.
    1. Writ of error — Judicial discretion — Time for application. —While a party can prosecute a writ of error at any time within five years from the rendition of judgment, the court is of opinion that this limitation should be held to apply only to those cases where a writ of error is a writ of right, hut where a party desires to prosecute a writ of error under section 8 of the act establishing the appellate court, he must make his application in the same time that he would be compelled to if he desired to appeal instead of suing out a writ of error.
    2. Practice. — It is a rule of practice in this court, that the court will not examine the record and give a certificate of importance under the statute to enable a party to prosecute a writ of error, unless the application therefor be made within twenty days.
    Appeal from the Circuit Court of Mercer county; the Hon. . John J. Glenn, Judge, presiding.
    Opinion filed January 15, 1884.
    Mr. B. C. Taliaferro, for appellant.
    Mr. I. 1ST. Bassett, Mr. J. C. Pepper and Mr. James McCartney, for appellees.
   Per Curiam.

The judgment rendered in this case by the circuit court was affirmed at the last May term of this court. The judgment being for less than $1,000 exclusive of costs, and the action founded in tort, no appeal or writ of error will lie as a matter of right to remove the case into the Supreme Court.

Appellant enters his motion herein at the present term, for leave to prosecute a writ of error and for a certificate of importance under the eighth section of the act establishing appellate courts, which provides: “ That in any case a majority of the judges of the appellate court shall be of opinion that a case decided by them involving a less sum than one thousand dollars ($1,000), exclusive of costs, also involves questions of law of such importance, either on account of principal or collateral interests, as that it should be passed upon by the Supreme Court, they may in such cases grant appeals and writs of error to the Supreme Court on petition of parties to the cause, in which case the said appellate court shall certify to the Supreme Court the grounds of granting such appeal.”

The time in which a party can obtain an order allowing an appeal to the Supreme Court is limited to twenty days after judgment is rendered in this court, and as by the above provision of the statute the right to an appeal or writ of error depends upon the same conditions, we are disposed to hold that a party desiring to prosecute a writ of error in a case like this, must make his application in the same time that he would be compelled to if he desired to appeal, instead of suing out a writ of error.

It can scarcely be that the legislature' in tended to impose upon this court the duty of re-examining the records of causes that have been disposed of for months and perhaps years, in order to ascertain if such questions of law are involved that its discretion ought to be exercised i¡n favor of a party desiring to prosecute a writ of error.

In general a party can prosecute a writ of error at any time within five years from the rendition of judgment, but this limitation we think should be held to apply only to those cases where a writ of error is a writ of right, and not depending upon the judicial discretion of the lower court.

Whether we are right in this view as a matter of statutory construction may not, perhaps, be very material, for we have no hesitation in saying that as a rule of practice in this court, we will not examine the record and give a certificate of importance under the statute to enable a party to prosecute a writ of error, unless the application therefor be made within twenty days, the time limited for appeal in the same case.

Motion denied.


text:
    Chicago, Burlington & Quincy Railroad Co. v. Bridget Dougherty, Adm’x.
    Negligence — Signals.—An instruction was given that if appellant .negligently failed “ to give such signals of the approach of the train as to enable Dougherty, the deceased, to ascertain the approach of said train,” and he was in the exercise of due care, then the jury should find for appellee. It was claimed as error that such an instruction held the appellant must make the signals so loud that the deceased should hear them, whereas the statute only required certain signals should be given. Held, that as an examination of the evidence shows that no question was made as to the loudness of the • signals or that if given the statute was not complied with, the only question before the jury being whether there were any signals at all, the jury could not have been misled to appellant’s injury.
    Appeal from the Circuit Court of La Salle couuty; the Hon. Geobge "W". Stipp, Judge, presiding.
    Opinion filed February 5, 1884.
    Mr. Samuel Bicholson, for appellant;
    as to sounding of signals, cited Manly’s Case, 58 Ill. 307; C., R. I. & P. Ry. Co. v. Houston, 95 U. S. 697; Gorton v. Erie Ry. Co., 45 N. Y. 660; Heavens v. Erie Ry. Co., 41 N. Y. 296.
    As to evidence, in estimating speed of train: I. C. R. R. Co. v. Goddard, 72 Ill. 568; Peoria Bridge Ass’n v. Loomis, 20 Ill. 235; C. & N. W. Ry. Co. v. Sweeney, 52 Ill. 325; Bellfont R. R. Co. v. Hunter, 33 Ind. 335; Artz v. R. R. Co., 34 Ia. 153; Earlville v. Carter, 2 Bradwell, 34; R. R. Co. v. McKean, 40 Ill. 218; C. & A. R. R. Co. v. Robinson, 9 Bradwell, 89; L. S. & M. C. R. R. Co. v. Sunderland, 2 Bradwell, 307; R. R. Co. v. Pflugmacher, 9 Bradwell, 300; Garland v C. & N. W. R. R. Co., 8 Bradwell, 571.
    Messrs. Leland & Gilbert and Messrs. Mats & Widmer, for appellee;
    as to burden of proof, cited Mayo v. Boston, etc., R. R. Co., 104 Mass. 137; Cook v. Met. R. R. Co., 98 Mass. 361; Johnson v. Hudson R. R. R. Co., 20 N. Y. 64.
   Per Curiam.

This case was here on a former appeal, and the facts are fully stated in our former opinion (12 Bradwell, 181,) and the record shows that substantially the same facts were proved on the last trial. The judgment was reversed on account of certain errors committed by the court in giving instructions in regard to the doctrine of comparative negligence and some errors in regard to the admission of improper evidence, but on the last trial those errors were avoided. The appellee offered and the court gave on her behalf only one instruction, and that is complained of by the attorney for appellant, mainly for the alleged error that the court incorrectly laid down the law to the jury on the question of the duty imposed by the statute on a railroad company to ring a bell or sound a whistle on the approach of its engine and cars to a public highway or crossing.

The criticism made upon the instruction is that it was erroneously laid down as the law, that if the appellant negligently failed “ to give such signals of the approach of the train as to enable Dougherty, the deceased, to ascertain the approach of said train,” and he was in the exercise of due care, then the jury should find for the appellee; thus, it is claimed, holding the appellant must make the signals so loud that the deceased should hear them, whereas the statute only requires certain signals to be given. It may be admitted that some sanction can be found in such claim of error in P. P. & J. R. R. Co. v. Siltman, 67 Ill. 72, but after an examination of the evidence we find that no question was made as to the loudness of the signals, or that if given the statute was not complied with; the only question before the jury being whether there were any signals at all. We think therefore, the jury could not have been misled as to appellant’s injury by the instruction. TVe see no fault in the modifications of the appellant’s instructions made by the court or in refusing those offered by it, refused. The evidence in regard to the negligence and contributory negligence was all fairly submitted to the jury, and we are unable to say that they were not justified in finding the issues for appellee.

Judgment affirmed.


author: Pek Curiam.

text:
    Michael Haskins, Alias, etc., v. The People.
    1. Application fob change of venue — Notice.—Application for a change of venue must be made at the earliest opportunity, and reasonable notice must he given the State’s attorney of such intended application. Such notice can not be dispensed with unless formally waived by the party entitled to it. And it would not be sufficient to dispense with proof of notice, that the State’s attorney said nothing about receiving it.
    2. Affidavits as to application. — Where, at the time the hill of exceptions was signed by the judge, plaintiff in error presented an affidavit showing that he first learned of the prejudice of said judge on the day before he made the application for a change of venue, although he had been arrested six weeks before, and his attorneys presented affidavits that they had given verbal notice to the State’s attorney on the morning before the motion, which last affidavit was denied by the State’s attorney. Held, that these affidavits, made long after the trial and judgment, can not he held as aiding or supporting the application for a change of venue, which had been properly overruled before such trial.
    Error to the County Court of La Salle county; the Hon. Htratw T. Gilbert, Judge, presiding.
    Opinion filed February 5, 1884.
    Messrs. Blake & Moloney, for plaintiff in error; cited Hanna v. The People, 86 Ill. 244.
    Mr. L. W. Brewer, for defendant in error; cited Hunt v. Tinkham, 21 Ill. 639.
   Pek Curiam.

An indictment was found bv the grand jury of La Salle county against the plaintiff in error charging him with a violation of the Dram Shop Act in selling liquor without a license. The indictment was filed in the circuit court on June 18, 1883, and on the next day was certified by that court to the county court for process and trial under the statute.

The county court being in regular session a capias was issued for the arrest of the defendant upon which he was arrested on the 20tli of June and admitted to bail.

The cause being reached for trial on the 31st day of July at the same term of court, the defendant entered his motion for a change of venue, and filed in support thereof the following petition:

“Tour petitioner, Michael Haskins, would respectfully represent unto your Honor that he is the defendant in the above entitled cause. Tour petitioner would further represent that he can not have a fair and impartial trial in said cause on account of the prejudice of Hiram T. Gilbert, the judge of said court, against this petitioner. This petitioner therefore prays a change of venue in said cause.”

Michael Haskins.

State oe Illinois, La Salle County, ss.

Michael Haskins, the above named defendant, being first sworn, says that he has heard read the above petition by him subscribed, and knows the contents thereof, and that the same is true in substance and in fact.

(Properly subscribed and sworn to.)

He also filed the affidavits of John Devine and Michael Kelley, who state they possess the statutory qualifications to render them competent to testify in support of the defendant’s application.

The court denied the motion to change the venue, and put the defendant upon trial, and being found guilty and sentenced, he sued out this writ of error, and now asks that, the j udgment be reversed for the error of the court in overruling his motion to change the venue.

The only ground-urged for reversal of this judgment is that the court below refused to receive the affidavits of the supporting witnesses, Devine and Kelley, as conclusive evidence that they were reputable citizens of the county and not of kin nor of counsel of the defendant, but allowed witnesses to be called to contradict the statements of the affidavits in some of these particulars. We do not find it necessary in this case to determine whether in so doing the court committed error as it clearly appears upon other grounds that the court properly overruled the motion.

There was no reason shown to the court why the application was not made at an earlier day. For aught that appears upon the hearing of the motion, the defendant knew of the alleged prejudice of Judge Gilbert on the day that he was arrested, some six weeks before making the application. The rule is, that such applications must be made at the earliest opportunity. Bryson v. Crawford, 68 Ill. 362; T. W. & W. Ry. Co. v. Maxfield, 72 Ill. 95; P. & R. I. By. Co. v. Mitchell, 74 Ill. 394; Hudson v. Hanson, 75 Ill. 198; McCann v. The People, 88 Ill. 103; Utley v. Burns, 70 Ill. 162.

It appears from the bill of exceptions that at the time the court overruled the motion, there was no proof that any notice had been given the State’s attorney of the intended application and that nothing was said about notice by either party. The statute positively requires that reasonable notice shall be given. Ch. 146, R. S.,

It would seem from this case that it would not be sufficient to dispense with proof of notice, that the State’s attorney said nothing about receiving it. This being the state of the record the court properly overruled the motion. Graves v. Shoefelt, 60 Ill. 462; Utley v. Burns, supra.

It is true that at the time the bill of exceptions was settled and signed by Judge Gilbert, the plain tiff in error then presented an affidavit showing that he first learned of the prejudice of the judge on the day before he made the application, and also affidavits of his attorneys that they had given verbal notice to the State’s attorney on the morning before the motion was made which last affidavits were denied by that of the State’s attorney. These affidavits made long after the trial and judgment can not be held as aiding or supporting the application for a change of venue which had been properly overruled before .such trial, and we can not consider them as in any manner tending to show error in the action of the court in the regard complained of.

The judgment of the county court will be affirmed.

Judgment affirmed.


author: Pillsbttky, J.

text:
    John T. Johnson et al. v. Elizabeth L. Van Epps.
    1. Life Insurance — Power to change beneficiary. — While the beneficiary named in a policy takes such an interest in it as entitles him to receive the money when by the terms of the contract it becomes payable, to the exclusion of the heirs or personal representatives of the insured, yet such interest, in the absence of any statute affecting the question, is subject to the right of the insured, who pays the premiums and retains control of the policy, to dispose of it or to change the beneficiary, at least with the consent of the insurer.
    2. Policy payable to “heirs” or “personal representatives ” —The doctrine contra to the above, that the beneficiary, where a particular person is named as beneficiary, acquires a vested interest in the policy and its proceeds to the extent of depriving the person insured of the power of disposing of the policy during his life-time, is not applicable to a policy made payable to the “heirs,” the “legal” or “personal representatives ” of the insured.
    3. Meaning of term “legal representatives.” — “Legal representatives” by the professional meaning of the words, are understood to refer to executors and administrators. While such words under certain circumstances may be construed as referring to heirs or assigns, there must be something in the subject-matter of the contract, the context or surroundings, that requires a departure from the usually accepted meaning, before the forced construction will be adopted and acted upon by courts.
    4. Wager policies — Question for jury. — Where a person takes out an insurance upon his own life, for the benefit of some third person, who may not have an insurable interest in the life insured, the question whether it is a gambling or wagering policy is in every ease one for the jury to determine under proper instructions; and if it be found that the insured has been the principal actor in the transaction and has entered into it with an honest purpose to aid one whom he deems a proper object of his bounty, the transaction will be sustained; but if it appears the party insured is a mere nominal party and he procured the insurance for the purpose of giving the beneficiary the advantage of such insurance upon his life, when the beneficiary could not obtain it in his own name, the policy will be declared void.
    5. Insurable interest — Change of beneficiary. — A was insured in a Masonic benevolent society and the contract of insurance was with A and made payable to his wife or his legal representatives, and the wife having died, he, with the consent of the insurer, changed the beneficiary, surrendered the first certificate in consideration of o. second in which Mrs. V, a. married woman living apart from her husband, was named as beneficiary. Prior to the change of certificates, it was agreed between A and Mrs. V that in case a divorce was procured from Mrs. Y’s husband, they would marry. When A obtained the change of certificates he represented Mrs. V as his affianced. Mrs. V, who was keeping house, agreed to furnish A with a home and care for him and if necessary keep up the accruing assessments, all of which was faithfully performed. Held, that the surrender of the first certificate was not void as against A’s heirs, and that Mrs. V. could become a beneficiary in the substituted certificate.
    Appeal from the Circuit Court of Peoria county ; the Hon. David McCullough, Judge, presiding.
    Opinion filed February 5, 1884.
    On August 1,1872, the Illinois Masons Benevolent Society issued to Havilah B. Johnson, a member of the order, a certificate of membership in said society, in and by which the society agreed, in consideration of certain assessments to he paid by said Johnson upon the death of any member of his class in said society, to pay, upon the death of said Johnson, to his wife, Judith Johnson, or to his legal representatives, a certain sum per member of the class to which the insured might belong at the time of his death.
    His wife, Judith, died in 1877.
    Her death caused the breaking up of his household, as they had no children, and from that time Mr. Johnson had no home of his own..

      His health becoming impaired, and his means of support becoming insufficient to provide him adequate support, he, in the year 1879, endeavored to dispose of the benefits secured to him by said certificate to different parties if they would support him during his life and pay the accruing assessments upon it, but did not succeed.
    He did not, however, permit the certificate to lapse, and on the 17th day of January, 1880, he, by arrangement with the insurer, surrendered it and in lieu thereof received another with the like conditions as in the former, except upon his death the proceeds were to be paid to Mrs. Yan Epps, the appellee, or to his heirs. Mrs. Yan Epps, at this time, was living apart from her husband, a contract to that effect existing between them, and it was expected that a divorce would result, which, in fact, did occur in October, 1880.
    Mr Johnson and the appellee had been acquainted for a long time, and it was, prior to the change of certificates, agreed that in case such divorce was procured they would intermarry. Mr. Johnson then applied to the association to have her made the beneficiary in the certificate, representing her as his affianced, and the change was made as above noted.
    The appellee, who was keeping house, agreed to furnish him a home- and care for him, and, if necessary, to keep up the accruing assessments.
    The evidence shows that she faithfully complied with the contract upon her part, and that Mr. Johnson throughout his long sickness needed for nothing that money could purchase to make him comfortable. He died on the 25th day of October, 1881, expressing his gratitude for the care and attention he had received at her hands, and his satisfaction that she would not be wholly unrequited for the same, as the certificate which she then held would be paid to her. After his death, these appellants, John T., being a brother, and the others nephews and nieces of the deceased, notified the association that they claimed the proceeds of the certificate, and forbidding its payment to the appellee, while she, also claiming the entire benefit, brought suit upon the certificate, and +he association filed its bill of interpleader, confessing its liability upon the contract of insurance, and brought the amount due upon it into court, the sum being $4,160.41, and asked that the rival claimants be compelled to litigate their claims to the fund and the association be discharged.
    The court upon hearing awarded the money to Mrs. Yan Epps, and the heirs appealed.
    Mr. Miles A. Fullee, Messrs. Fullee & Keithley and Mr. W. T. Whiting, for appellants;
    that whenever a person insuring his life, names the beneficiary, the promise of the insurer is to pay to such beneficiary, and the insured can have no interest in such promise and no power to transfer its benefits to another without the consent of the beneficiary, cited Bliss on Life Ins., § 317; May on Ins., §§ 390, 391; Cont. Life Ins. Co. v. Palmer, 42 Conn. 60; Chapin v. Fellows, 36 Conn. 132; Cont. Mut. Life v. Burroughs, 34 Conn. 305; Eadie v. Slimmons, 26 N. Y. 9; Swan v. Snow, 11 Allen, 224; Gosling v. Caldwell, 1 Lea (Tenn.), 454; Wilburn v. Wilburn, 83 Ind. 56; Gould v. Emerson, 99 Mass. 154; Knickerbocker Life v. Weits, 99 Mass. 157; Ricker v. Charter Oak Ins. Co., 27 Minn. 193; Allis v. Ware, 28 Minn. 166; Williams v. Williams, 68 Ala. 406; Succession of Kugler, 23 La. 455; Pilcher v. N. Y. Life Ins. Co., 33 La. An. 322; Barry v. Eq. Life Ins. Co., 59 N. Y. 587; Glanz v. Gloeckler, 104 Ill. 573; Libby v. Libby, 37 Me. 359.
    Where the term “ legal representatives” is used and the intent of the party, gathered either from the instrument itself or from its nature and the circumstances under which it was executed, shows that heirs were intended, such intent will control: Bliss on Life Ins., § 319; Warnecke v. Lembca, 71 Ill. 91; Bowman v. Long, 89 Ill. 19; Loos v. Hancock, 41 Mo. 540; Masonic, etc., v. McAuley, Am. Law Reg. 1883, p. 141.
    Corporations can only exercise such powers as are specifically granted to them or are necessary or incident thereto. Appellee can not take, because by the articles of the society she is not an object of bounty: Detrich v. Madison K. Asso., 45 Wis. 84; Ballou v. Gile, 50 Wis. 618; Mut. Ben. Asso. v. Hoyt, 46. Mich. 473; Hodge’s Appeal, 12 Chicago Legal Hews, 422; Duvall v. Goodson, 59 Ky. 224.

      Messrs. Stake & Stake and Mr. John C. Yates, for appellee;
    as to the right of the insured to dispose of his policy, cited Clark v. Durand, 12 Wis. 248; Kerman v. Howard, 28 Wis. 108; Foster v. Gile, 50 Wis. 603; Gambs v. Mut. Life Ins. Co., 50 Mo. 44; Mut. Ben. Life Ins. Co. v. Atwood, 24 Gratt. 497; Mut. Life Ins. Co. v. Coghill, 30 Gratt. 72; Pulvertoft v. Pulvertoft, 18 Vesey, Jr., 98; Doll v. Lincoln, 31 Me. 428.
    As to the consideration of the articles of the'society governing the disposition of certificates: Duran v. Central Verein, 7 Daly, 168; Supreme Council v. Priest, 9 N. W. Rep. 481; The People v. Johnson, 14 Ill. 342; Otis v. Beckwith, 49 Ill. 121; Cole v. Marple, 98 Ill. 58; Lemon v. Phœnix Life Ins. Co., 38 Conn. 294; City Fire Ins. Co. v. Mark, 45 Ill. 482; Tillon v. Kingston Mut. Ins. Co., 7 Barb. 573; Traders Ins. Co. v. Roberts, 9 Wend. 404; Charleston Ins. Co. v. Rose, 2 McMullan, 237.
    Certificates of these corporations are discussed and governed by the same rules as policies of insurance: Masonic Ben. Soc. v. Winthrop, 85 Ill. 537; Ill. Masons Ben. Soc. v. Booth, 12 Chicago Legal News, 150; Campbell v. New England Ins. Co., 98 Mass. 381; Ill. Masons Ben. Soc. v. Baldwin, 86 Ill. 479; Com. League, etc., v. The People, 90 Ill. 166; State v. Mer. Exc. Mut. Ben. Soc., 72, Mo. 146; Commonwealth v. Wetherbee, 105 Mass. 160.
    As to the doctrine of ultra vires: Darst v. Gale, 83 Ill. 141; Bradley v. Ballard, 55 Ill. 413: Aurora, etc., Soc. v. Paddock, 80 Ill. 267; Chicago Building Soc. v. Crowell, 65 Ill. 453; Gillet v. Logan Co., 67 Ill. 256.
    The certificate would be enforced against the company as a gift to appellee: Bliss on Life Ins., 513-515; Grangias v. Arden, 10 Johnson, 291; Dale v. Lincoln, 62 Ill. 22; Majors v. Everton, 89 Ill. 56; Cranz v. Kroger, 22 Ill. 74.
   Pillsbttky, J.

In support of the first proposition it is said by counsel in their brief, that the following points are conclusively established by the authorities cited, viz.:

“That immediately upon the issuance of the first policy, payable to Judith Johnson or to the legal representatives of H. B. Johnson, the right of said beneficiaries became vested and could not be divested in any way without their consent. The property, or ownership of the policy, was in the beneficiaries and beyond the control of Johnson, the insured, and he could do no act to divest or transfer it from them to other parties. It springs from the nature of the Contract, and can not be otherwise. Whenever the person insuring his life names the beneficiary, the promise of the insurer is to pay to such beneficiary, and the insured can have no interest in such a promise and no power to transfer its benefits to another, without theconsent of the beneficiary. It is in the nature of an executed gift, or settlement, and has passed beyond the control of the party procuring it.”

We must confess that the broadness of the position assumed when applied to the facts of this case, the persistency and candor with, vhich it is maintained, and the great array of authorities cited in its ■ support, caused us to doubt whether our preconceived opinion that a man in disposing of his property for his own benefit, was not violating any principle of the common law, was coi’rect, and led us into a careful examination of all the authorities cited, so far as they were available to us, and many others not referred to by counsel.

The case of the Continental Life Insurance Co. v. Palmer, 42 Conn. 60, is one where the wife insured the life of the husband, the amount insured to be payable to her if she survived him, if not, to her children. One son died in 1870, leaving a son surviving him, the wife died in 1872 and the husband in 1873. The question was whether the grandson was entitled to share in the proceeds of the policy. The court held that under the provisions of the statute of that State, the policy being made payable to the wife and children, that the children immediately took sucli vested interest in the policy that the grandson was entitled to his father’s share, the wife having died before the husband. It was also said “ but for the statute, it would have been a fund in the hands of his representatives for the benefit of the creditors, provided the premiums had been paid by him.”

In the cases of Chapin v. Fellows, 36 Conn. 132, and the Continental Trust Life Ins. Co. v. Burroughs, 34 Conn. 305, the contracts of insurance were also procured by the wife upon the life of the husband and the decisions therein were based upon the statutes of that State, which protect policies procured for the benefit of the wife, or the wife and children, from the claims of the creditors, or the acts of the husband.

In Eadie v. Slimmon, 26 N. Y. 9, the policy was issued to Mrs. Eadie upon the life of her husband, James, for the sole use of his wife, Jessie, her personal representatives or assigns, and should she die before her said husband, then to her children. Eadie and wife assigned the policy to secure a debt, and both having died, the wife first, the children claimed the money as against the assignee. The court held that this contract was within the statute of 1840, which provided that such contracts of insurance inured to the benefit of the wife and children and could not be assigned so as to deprive the children of the benefit thereof, in case the wife died before the husband.

This construction of the statute was adhered to in Barry v. Equitable Life Ins. Co., 59 N. Y. 58, and the rights of the parties determined under its provisions.

The cases referred to of Libby v. Libby, 37 Me. 359; Swan v. Snow, 11 Allen 224; Gould v. Emerson, 99 Mass. 154; Knickerbocker Ins. Co. v. Weitz, 99 Mass. 157; Gosling v. Caldwell, 1 Lea (Tenn.), 454, and The Fraternal Life Ins. Co. v. Appelgate, 7 Ohio, 292, were each determined under the statutes of those States, which provided in substance, that policies of insurance upon the life of the husband taken out under the provisions of the statute, inured to the benefit of the beneficiaries named in such policies, and the proceeds could not be diverted from their declared nse by any act of the party whose life was thus insured.

These decisions appear to be the foundation of the text in Bliss on Insurance, Sec. 317,where he says; “We apprehend the general rule to be that a policy, and the money to become due under it, belong, the moment it is issued, to the person or persons named in it as beneficiaries, and that there is no power in the person procuring the insurance by any act of his or hers, by deed or by will, to transfer to any other person, the interest of the person named.”

To the same effect is Sec. 390 of May on Insurance.

That this principle is correct where the beneficiary in the policy is one to whose use and benefit the proceeds of the policy is made to inure by the positive provisions of the statutes, may be'^conceded, but it is not so clear that it is applicable, nor intended by the authors to be applicable to a case where a party insures his own life for the benefit of a Jthird party, where the rights of the parties are unaffected by the statute, but are to be determined solely by the principles of the common law.

The Supreme Court of Minnesota in Ricker v. Charter Oak, Ins. Co., 27 Minn. 193, and the Court of Appeals in Virginia, in the recent case of the Valley Mutual Life Co. v. Burke, basing their opinions upon the above statements of May and Bliss, hold it to be the doctrine of the common law, while the contrary is held in Clark v. Durand, 12 Wis. 223, Kerman v. Howard, 23 Wis. 108, and Foster v. Gile, 50 Wis. 608; Gambs v. Mut. Life Ins. Co., 50 Mo. 44, and in Charter Oak Life Ins. Co. v. Brent, 47 Mo. 419, and the right of the insured, with the consent of the insurer, to change his beneficiary, fully maintained.

The policy in this last case was not within the Missouri statute, and the court notes a distinction between such and those held by the same court in other cases to be within it. See also Olmstead v. Keys, 85 N. Y. 393, where the same distinction is made.

If this case depended upon the determination of this point alone, we should be disposed to follow the rule of the Wisconsin and Missouri courts, as their opinions seem to us to be founded upon the better reasons.

Where a part}1- insures his own life by policy running to him, and in which the covenant to pay a third party upon the death of the insured is made with the insured, and his money pays the premiums, and the policy is retained by him, we must confess that we know of no principle of the common law that would prevent him, if he finds that the beneficiary named has become an unworthy object of his bounty, or his circumstances have so changed that it is essential to his own futui’e welfare and comfort to make such policy available to supply ; his wants, from surrendering such policy, with the consent of the insurer, and taking another for his own benefit, or for the use of some other person, or otherwise varying its terms as the parties to it may agree.

In the absence of any statute affecting the question, we think the true rule in such cases is, that the beneficiary named in the policy, while taking such an interest in it as entitles him to receive the money when by the terms of the contract it becomes payable, to the exclusion of the heirs or personal representatives of the insured, yet such interest is subject to the right of the insured, who pays the premiums and retains control of the policy, to dispose of it, or to change the beneficiary at least, with the consent of the insurer.

We do not understand that these views are in conflict with the case of Glanz v. Gloeckler, 101 Ill. 573, for there the contract of insurance was not with the father, but the daughter; the policy was in her name as the insured, although the life insured was that of the father.

The legal rights of the parties were the same as though the daughter had taken out the policy upon her father’s life upon her own application.

The legal status of the parties under the contract was not changed because the father had seen proper to advance the premiums for the child, and it was held that her administrator was the owner of the policy.

If the covenants in the policy had been with the father, and his daughter named as the one to whom the proceeds should be paid upon his death, and she had died in his life-time, it is apprehended that the decision would have been different; for where such a contract is not affected by any statute, the rule appears to be that in case the beneficiary in a life policy dies before the insured, the policy is to be considered as though no particular beneficiary had been named therein.

But if we should be incorrect in the view that the common law permits the insured, under the circumstances above supposed, to dispose of his policy where a particular person is named as a beneficiary, we pass to the consideration of another question, less doubtful, arising upon this branch of the case.

It is conceded that, as Mrs. Judith Johnson died before her jhusband, the first certificate is to be treated the same as if her name did not appear in it. Thus considered, the amount of the policy was to be paid to the “ legal representatives ” of said insured upon his death, and admitting, for the moment, the claim of appellants, that the term as used here is to be construed as “ heirs,” then the policy was one to pay to his heirs generally and to no particular persons.

We have been referred to no case, and it is believed that none esists, which holds that the doctrine as stated in the works of Mr. Bliss and Mr. May, above referred to, is applicable to a policy made payable to the “ heirs,” the legal ” or “personal representatives” of the insured, in general terms. See Wason v. Colburn, 99 Mass. 342; Bison v. Wilkerson, 3 Sneed, 565.

Questions have been made between the administrator and the heirs, concerning the direction the fund should take under policies payable to the “ legal representatives ” of the insured. Such was the case of Loos v. John Hancock Ins. Co., 41 Mo. 538, where it was held the heirs were entitled to the money in preference to the personal representative, and the case of Wason v. Colburn, 99 Mass., 342, where a contrary conclusion was reached.

Whatever construction may be given the term where the question arises after the death of the insured, and there has been no disposition of the policy during the life insured, we are clear that neither the heirs ” nor the “ legal representatives’’are such beneficiaries, within the rule contended for and giving it the full effect claimed for it, as acquire a vested interest in the policy and its proceeds to the extent of depriving the person insured of the power of disposing of the policy during his life-time in any way he may desire, with the consent of the insurer.

It is confidently asserted that no well considered case can be found that denies to the insured the right of disposing of the policy under such circumstances.

Besides we are not satisfied that the term “ legal representatives ” in this certificate was intended to be used in the sense of heirs ” or “ next of kin.” By the ordinary and professional meaning of the words, executors or administrators are under-, stood, and while they are flexible and may be construed, under certain circumstances, as referring to heirs or assigns (Warnecke v. Lembca, 71 Ill. 91; Bowman v. Long, 89 Ill. 19; Loose v. Ins. Co., 41 Mo. 538), there must be something in the subject-matter of the contract, the context or surroundings that requires a. departure from the usually accepted meaning before the forced construction will be adopted and acted upon by the courts.

hTo such circumstances exist in this case that would authorize us to adopt the construction contended for by appellants.

We have no doubt that Mr. Johnson during his life-time, so far as concerns these appellants, had the entire ownership in the first certificate with full power to dispose of it in any manner he pleased.

It is next insisted that the appellee could not become a beneficiary in the substituted certificate for want of an insurable interest in the life of Mr. Johnson.

We shall not attempt to fully notice the decisions defining and explaining the necessity of, and the extent and character of the interest that a party must have in the life insured, to uphold a policy taken out by such party upon the other’s life, as we do not think that question is involved in this case.

This contract of insurance was with Mr. Johnson, taken out by him in the first instance for the benefit of his wife, if she survived him; if not, then the proceeds became a part of his estate, and she having died before him, he, with the consent of the insurer, changed the beneficiary and surrendered the first certificate in consideration of the second, by this method providing for himself a comfortable home and support during the remainder of his life. By this change of certificates he did not cease to become the insured.

The consideration for this second certificate, as stated in it, was received from Mr. Johnson, the assessments are to be paid by him, and the promises and agreement therein are with him, his executors and administrators, to pay the sum assured to Mrs. Van Epps.

It is, therefore, a case where a man insures his own life and by the mutual agreelnent of the contracting parties a third person is designated to receive the proceeds when due, instead of the personal representatives of the insured.

Whether such a contract of insurance is void, as being within the prohibition of the law against gaming or wagering policies, in our opinion does not depend so much upon the extent or character of the interest, or the want of interest, in such beneficiary as it does upon the intention of the parties in procuring such insurance. Upon this point Mr. Bliss, in his work, on Insurance, Sec. 26, says: “A person has undoubtedly an insurable interest in his own life, and that interest supports a policy, whether he makes the loss payable to himself,] his executors or his assigns, or to a nominee or appointee named in the policy. ISTor is a policy obtained by one on his own life for the benefit of another, which latter advances the premiums, necessarily void.”

“ The question is whether the policy was in fact intended to be what it purports to be, or whether the form was adopted as a cover for a mere wager. If the plaintiff and the insured confederate together to procure a policy for the plaintiff’s benefit, when he is not and does not expect to be a creditor of the insured, and with a view of having the policy assigned to him without consideration, the policy is void.”

In Campbell v. New England Mut Life Ins. Co., 98 Mass. 381, one Andrew Campbell obtained a policy of insurance upon his own life for the use of the plaintiff, who was the wife of a brother of the insured, and a want of interest in the beneficiary was the ground of defense. Upon this point the court says: “The policy in this case is upon the life of Andrew Campbell. It was made upon his application; it issued to him as the assured; the premium was. paid by him; and he thereby became a member of the defendant corporation. It is the interest of Andrew Campbell in his own life that supports the policy. The plaintiff did not, by virtue of the clause declaring the policy to be for her benefit, become the assured. * * * It was not necessary, therefore, that the plaintiff should show that she had an interest in the life of Andrew Campbell by which the policy could be supported as a policy to herself as the “ assured.”

This case is approved in Stevens v. Warren, 101 Mass. 564, where it is further observed that if it should appear that the arrangement was a cover for a speculating risk, contravening the general policy of the law, it would not be sustained.

The case of Olmstead v. Keyes, 85 N. Y. 597, reviews the prior decisions of that and other courts upon the validity of assignments of policies of insurance as affected by the interest of the assignee in the life insured, and also upon the right of the beneficiary named, where no such interest is shown.

After such a review of the authorities, the court say upon this point: “The rule as gathered from these authorities is that where one takes out a policy upon his own life as an honest and bona fide transaction, and the amount insured is made payable to a person having no interest in the life, or where such policy is assigned to one having no interest in the life, the beneficiary in the one case, and the assignee in the other, may hold and enforce the policy, if it was valid in its inception, and the policy was not procured or the assignment made as a contrivance to circumvent the law against betting, earning and wagering policies. It follows, therefore, that one may with the consent of the insurer, deal with a valid life policy as he could with any other chose in action, selling it, assigning it, disposing of it, and bequeath it by will, and it has been well said that if he could not do this, life policies would be deprived of a large share of their utility and value.”

“ It can not be questioned ” say the Supreme Court of Indiana, in Provident Life Ins. Co. v. Baum, 29 Ind. 236, “ that a person has an insurable interest in his own life, and that he may effect such insurance, and appoint any one to receive the money in case of his death during the existence of such policy.” “And he may,” say the Supreme Court of Vermont, in Fairchild v. North Eastern Mut. Life Association, 51 Vt. 613, “effectuate this object by assignment of the policy, or by immediately appointing such person as beneficiary.”

To the same effect are the cases of Clark v. Allen, 11 R. I. 439; Mallory v. Trav. Ins. Co., 47 N. Y. 52, and Lemon v. Phœnix Ins. Co., 38 Conn. 294.

In Conn. Mut. Life Ins. Co. v. Schaefer, 94 U. S. 457, where the question of what constituted an insurable interest arose, it was said: “A man can not take out insurance on the life of a total stranger, nor on that of one who is not so connected with him as to make the continuance of the life a matter of some interest to him. It is well settled that a man has an insurable interest in his own life and in that of his wife and children; a woman in the life of her husband; and the creditor in the life of his debtor. Indeed, it may be said generally that any reasonable expectation of pecuniary benefit or advantage from the continued life of another, creates an insurable interest in such life. And there is no doubt that a man may effect an insurance on his own life for the benefit of a reiaiave or friend, or two or more persons on their joint lives, for the benefit of the survivor or survivors. The old Ton-tines were based substantially on this principle, and their validity has never been called in question.”

And again in the same volume, page 561, in the case of the Ætna Life Ins. Co. v. France, where the policy was upon the life of Andrew J. Chew, expressly for the benefit of his sister, Lucelia P. France, the court below held it was a contract between the company and Chew, with a stipulation that the money should be paid to his sister, and sustained the policy. The court say: “We concur in the construction of the policy made by the court, and in the validity of the transaction. As held by us in the case of the Connecticut Mutual Life Insurance Company v. Schaeffer, supra, p. 457, any person has a right to procure an insurance on his own life and assign it to another, provided it be not done by way of cover for a wager policy; and where the relationship between the parties, as in this case, is such as to constitute a good and valid consideration in law for any gift or grant, the transaction is entirely free from any such imputation. The direction of payment in the policy itself is equivalent to such assignment.” See also Guardian Mut. Life Ins. Co. v. Hogan, 80 Ill. 35.

It would seem from the above authorities that where a person takes out an insurance upon his own life, for the benefit of some third person, who may not have an insurable interest in the life insured, .the question whether it is a gambling or wagering policy, is in every case one for the jury to determine under proper instructions, and if it be found that the insured has been the principal actor in the transaction, and has entered into it with an honest purpose to aid one whom he deems a proper object of his bounty, the transaction will be sustained and the beneficiary be entitled to the money; but, on the other hand, if it appear that the party insured is but a mere nominal party, and he procured the insurance for the purpose of giving the beneficiary the advantage of such insurance upon his life, when the beneficiary could not obtain it in his own name, the transaction will be condemned and the policy declared void.

The cases of Cammack v. Davis, 13 Wallace, 643, and Warnock v. Lewis, 104 U. S. 775, have been cited as announcing a rule different from that in the two cases cited supra, from the 94 U. S.

There is nothing stated in Warnock v. Lewis that indicates any intention upon the part of the court to overrule, modify or question the doctrine held in the two cases above quoted from by us, and a careful examination of the cases referred to lead us to believe they are not necessarily in conflict with the others. In both eases cited by counsel the question arose as to the validity of an assignment of a policy by the insured, and although the cases apparently proceed upon the broad principle that an assignment to a person having no insurable interest is invalid, they are explainable upon the ground that in both cases there was the clearest evidence that the assignee was the real principal who procured the insurance and paid the premiums, and that the entire transaction was but a mere shift and device to evade the law against wagering policies. Of like character is the case of Gilbert v. Moose, Vol. 16 of Reporter, 699, from the Supreme Court of Pennsylvania, where the fact found was that the assignee took the policy for speculative purposes, and upon this point being reserved the court held the assignment void. It is true that the court denied the right of assignment in all cases to an assignee having no interest in the life insured, under the decisions of that State and the cases of Cammack v. Lewis, and Warnock v. Davis, supra.

In the case of Franklin Life Ins. Co. v. Hazzard, 41 Ind. 116, one Cone insured his life for $8,000, and concluding to let the policy lapse, sold it to Hazzard for $20, who held it as a mere matter of speculation. Hazzard having no interest in the life of Cone, the assignment to him was held invalid, because he was a mere speculator upon the probabilities of human life. The court in this case refer to the case of Stevens v. Warren, 101 Mass. 564, as stating the correct doctrine upon this subject, and base the decision upon it. In that case the policy was assigned without the consent of the company and in violation of the contract of insurance, to one having no interest, and in passing upon the question the court said: “The rule of law against gambling policies would be completely evaded if the court were to give to such transfers the effect of equitable assignments, to be sustained and enforced against the representatives of the assured.

“When the contract between the assured and the insurer is expressed to be for the benefit of another, or is made payable to another than the representatives of the assured, it may be sustained accordingly. The same would probably be held in case of an assignment with the assent of the insurer. But if the assignee has no interest in the life of the subject of insurance which would sustain a policy to himself, the assignment would take effect only as a designation, by mutual agreement of the contracting parties, of the person who should be entitled to receive the proceeds when due, instead of the personal representatives of the assured. And if it should appear that the arrangement was a cover for a speculative risk, contravening the general policy of the law, it would not be sustained.”

It will be seen by a comparison of the opinions in the cases of the Ætna Life Ins. Co. v. France, and the Conn. Life Ins. Co. v. Shaeffer, supra, with the opinions of the same court in Cammack v. Davis, and Warnock v. Lewis, that they are really based upon the principle so clearly stated in the case in 101 Mass., as in the former two cases the policy was made payable to a third party as beneficiary, and was sustained, while in the latter two the policies being assigned to a party having no interest, and it appearing they were taken by the assignee as a mere speculation, and the transaction was but a mere cover to evade the law, the assignments were held void. The same distinction is made in the two Indiana cases above cited. In Provident Life Ins. Co. v. Baum, 29 Ind. 236, the defense interposed of a want of interest in Baum, the beneficiary, did not avail; in the case in the 41 Ind., the assignment, being taken for speculation, was held invalid.

If these various decisions can not be harmonized upon some such ground as suggested, then it must be admitted that there is such a hopeless conflict of opinion, not only between the courts of the various States, but between the different decisions of the same court, as to furnish no material aid in determining the question under consideration.

Considering the question in the best light obtainable from;; these and other decisions, as well as upon principle, we adopt < the rule heretofore stated by us, being, as we believe, more in accordance with that policy of the law which requires us, while recognizing and maintaining the interests of society, to interfere as little as possible with the liberty of the citizen to control and dispose of his own in good faith, for his own benefit in any manner he may see fit.

Can it be said that there is any law that prevented Mr. Johnson from making use of his' only available means to keep himself from becoming a pauper, and from procuring with it a home — the care and comforts he required during life and a Christian burial after death?

Must he let the policy lapse, for inability to pay the accruing assessments, thereby depriving himself of the present means of support, and no one receive any benefit from it after his decease? Or must he keep it in force for the benefit of his collateral kindred, who, if we are to take his proven statements, have no great claim upon his bounty?

If such is to be the policy of the law in this State, I do not propose to be the one to take the initiative in so declaring it.

As to the good faith of Mr. Johnson in changing the terms of the policy making the proceeds payable to Mrs. Van Epps we entertain no doubt. The insurance was taken out years before. The exchange of certificates was a method adopted by the contracting parties to designate-a new beneficiary.

This was done by the consent of the insurer and it is still satisfied with the contract. Mr. Johnson received a valid consideration and one entirely satisfactory to him even to the hour of his death. By this act Mr. Johnson deprived no one, to whom he was under any moral or legal obligations, of a single cent that they were entitled to.

Under such circumstances we fail to see why the intention of the parties should not be carried out.

As the decree of the circuit court effectuated such intention, we affirm it.

Decree affirmed.


author: Lacey, P. J.

text:
    George M. De Land v. Dixon National Bank.
    1. Accommodation paper. — Where appellant did not give a certain note to a bank as mere accommodation to the bank without any consideration, but gave it for the accommodation of the cashier, who desired to deal with the bank upon the credit of the note. Held, that the money or credit obtained by the cashier of the bank was a good consideration as against appellant, who signed for the benefit of the cashier, and appellant can not claim as against appellee, the bank, that the note was accommodation paper and therefore void.
    2. Evidence. — The court is of opinion that the evidence in the case of the Dart note clearly shows that appellant either in the first place consented to the discount in question or afterward ratified it.
    3. Substantial justice done. — Although instructions were given which were erroneous in stating that appellant would be estopped from denying the correctness of the pass-book or the check, unless he informed appellee of his objections within a reasonable time after the unauthorized use of his name was discovered and other improper instructions were given, yet as upon an examination of the evidence the court is unable to see that any other verdict should have been rendered, or if rendered could have been sustained, the verdict will not be disturbed.
    Error to the Circuit Court of Lee county; the Hon. John V. Eustace, Judge, presiding.
    Opinion filed February 5, 1884.
    Messrs. Barge, Bathbun & Barge, for plaintiff in error;
    that a bank assuming the duty of a collecting agent is absolutely liable for the neglig ence or default of a notary, corre-, spondent, or its own immediate servants or agents, cited Davey v. Jones, 42 N. J. L. 28; Ayrault v. Pacific Bk., 47 N. Y. 570; Walker v. Bk. of N. Y., 9 N. Y. 582; Ætna Ins. Co. v. Alton City Bk., 25 Ill. 243; Com. Bk. of Penn. v. Union Bk. N. Y., 1 Kern, 203; Rich v. State Nat. Bk., 7 Neb. 201; C., B. & Q. R. R. Co. v. Coleman, 18 Ill. 297; N. E. Fire & M. Ins. Co. v. Schettler, 38 Ill. 106; Board of Education v. Greenebaum, 39 Ill. 609; Angell & Ames on Corporations, 9th ed., § 310.

      Banks, like individuals, are liable in the character they hold themselves or their agents out to the world: Bulkley v. Derby Fishing Co., 2 Conn. 255; Wilson S. M. Co. v. Boyington, 73 Ill. 534; Perkins v. Washington Ins. Co., 4 Cowen, 660; Bank U. S. v. Dandridge, 12 Wheat. 70-89.
    Bankers are presumed to know the signatures of their customers, and they pay checks purporting to be drawn by them at their peril: Weisser v. Denison, 10 N. Y. 68; First Nat. Bk., Quincy, v. Bicker, 71 Ill. 439; Price v. Neal, 3 Burr. 1354; Wilson v. Alexander, 3 Scam. 392; Hoffman v. Bk. of Milwaukee, 12 Wall. 181; U. S. Bk. v. Bk. of Ga., 10 Wheat. 333.
    The subsequent ratification of the acts of an agent are equivalent to a previous express authority: Hoyt v. Thompson, 19 N. Y. 207; Morris v. Tillson, 81 Ill. 607; Rich v. St. Nat. Bk. 7 Neb. 201; Balls. Spa Bk. v. Marine Bk., 16 Wis. 139.
    Mr. A. K. Tkuesdell, for defendant in error;
    as to ratification, cited 1 Liverman on Agency, 44; Paley on Agency, 171; Com. Bk. of Buffalo v. Warren, 15 N. Y. 577.
    Where substantial justice has been done, the verdict should not be disturbed: Glickauf v. Hirschorn, 73 Ill. 575; Toledo, W. & W. Ry. Co. v. Ingraham, 77 Ill. 309; Timmons v. Broyles, 47 Ill. 92; Flanigan v. Crull, 53 Ill. 352; Charter v. Graham, 56 Ill. 19; Graves v. Shoefelt, 60 Ill. 462.
   Lacey, P. J.

The appellant had been a general depositor of money in the bank of the appellee and in his dealings with the latter had given it, at various times, his promissory notes. At the close of their dealings the appellee on the — day of April 1877, made out and delivered to appellant a passbook and forty-two vouchers, containing a full statement of his accounts, credits and debits. The appellant had carried no pass-book since 1873, the entire account being kept by the hook. On the 17th day of October, 1879, the appellant brought this suit in assumpsit, claiming a balance due. The appellee pleaded set-off of two promissory notes, one dated May 8, 1878, for $127, and one for $707.62, signed by appellant and Trueman, who was at the time cashier of the bank, dated Mov. 15, 1877. The interest on the larger note was all indorsed paid, till April 9, 1879. Appellee recovered judgment over for $1,093.93, the amount of the notes and interest.

The main points in controversy are certain checks purported to be drawn by appellant, to which he claims he never signed, or authorized to be signed, his signature; that they are' in fact forgeries, and also that the small note is void because he did not owe the amount, for the reason that his bank account had been overdrawn by means of the forged checks; that if it had been correct he would not have owed the note, and that he had signed the note for the larger sum as the security of Trueman and for his mere accommodation. Therefore it was void. The main item charged against appellant to which he objects, and in which we think there can be any pretense of any injustice in erroneous charges, is a check for $600, dated Feb. 3, 1876, drawn payable to J. 0. Wiswell, a commission merchant in Chicago. This check, it is claimed by appellee, was drawn by Trueman, with full authority of appellant, to cover the latter’s loss in a wheat deal, on the Board of Trade in Chicago, in which he and Trueman had been .jointly engaged. This appellant denies in his evidence.

It appears by the pass-book that the $600 check is off-set by a credit of “ by note $600.41 ” which completely cancels the charge of the check.

It appears from the evidence of John Coleman, partly corroborated by the evidence of appellant himself, that appellant, on the 17th of March, 1876, gave his "promissory note to cover the disputed check and interest up to that date, and forty-one cents beside; and that that note was renewed sis different times, until the last note was given, which was the $707.62 note in suit.

Mow appellant does not claim that he ever gave or paid any other $600 note., If this be so we are unable to see what difference it can make whether the check for $600 was forged or not, as it appears to be canceled by a corresponding credit, to wit, the note dated March 17, 1876.

Even if this note is not collectible the credit on the account still remains, and the defense should he directed against the note alone which was given to balance the account.

But we see no reason why the note should be defeated. It matters not whether appellant signed the note to accommodate Trueman to enable him to get money out of the bank, or to pay an indebtedness to the bank. The bank could have no concern whether Trueman agreed with appellant to take care of the note or not.

The appellant testifies that he gave the $707.62 note to the appellee, signed by himself alone, and that Trueman’s name must have been put on it after it went out of his hands; that it was given for the accommodation of Frederick A. Trueman at the time he was the cashier of the bank. True-man agreed to take care of the note. It is not stated how it was that Trueman wanted to use the appellant’s note but the legitimate inference would be that he owed the bank and wanted to satisfy it in some way by appellant’s note, or that he wanted to use appellant’s note as security to the bank on which he might draw money out of the bank. He did not give the note to the bank asl’mere accommodation to the bank without any consideration, but he gave it for the accommodation of Trueman, who desired to|deal with the bank upon the credit of the note. In this sense all security on negotiable paper is accommodation for the principal maker, but not for the payee, and it does not invalidate such note as to the security, that the payee may know that he is signing for the accommodation of the principal.' ',The payee need have no concern in regard to that matter.

And in this case the appellee was not concerned as to the arrangement between appellant and Trueman upon what terms the former was signing paper for the latter. The money or credit obtained by Trueman, of the bank, was a good consideration as against appellant, who signed for the benefit of Trueman. The six hundred dollar check to Wiswell was an over-draft on appellant’s account either drawn for appellant’s benefit, or was fraudulently drawn by Trueman for his own benefit; and if for the latter purpose, the latter would certainly owe the bank unless appellee would assume it; and we think it could make but little difference whether he gave his note for the debt as his own or for the accommodation of Trueman. There could be no valid defense to the note in either case. The appellee closed the account of the appellant and took the first note, which was renewed from time to time till this one was given. This appellee might have refused to accept the note, but it does not lie in appellant’s mouth to complain of its having done so. The appellant has another ground of complaint, and that is, that appellee, without his consent, discounted a note on one Dart, of $4,444.45, in which the former had a one half interest, and which note was in the possession of the latter. The discount was at ten per cent, and the proceeds applied on notes of appellant due the appellee and those surrendered to appellant. The Dart note so discounted, and from that time claimed to be the property of appellee, was afterward collected by it. It is this difference between the proceeds of the Dart note discounted and the amount finally collected on it that appellant seeks to recover.

After a careful examination of the evidence and a consideration of all the attending circumstances, we are of the opinion that the evidence clearly shows that the appellant either in the first place consented to this discount, or afterward ratified it. He received his own notes which were paid off by this discount, which were drawing ten per cent, interest and received the benefit of the stoppage of such interest and the payment of his notes.

Again from anything that is shown us in the argument for appellant, we are not informed that the appellant has lost anything by the discount and the application of the proceeds on the payment of appellant’s own notes. In other words, if the latter’s notes had not been paid as they were and had run on interest till the Dart note was paid, would he have gained anything by the transaction? We are left in the dark as to the amount of appellant’s claim on this score.

Complaint is also made of the giving by the court of certain of appellee’s instructions, and the modification of certain of appellant’s instructions.

It may be admitted that instructions 4 and 5, given for appellee, are erroneous in stating the law to be that the appellant would be estopped from denying the correctness of the pass-book or the check, unless he informed appellee of his objections within a reasonable time after the unauthorized use of his name was "discovered; and also Ho. 3, in regard to the burden of proof, and also the modification of appellant’s instruction; but upon examination of the evidence we are unable to see that any other verdict should have’been rendered, or if rendered could have been sustained. ■ Therefore the judgment of the court below is affirmed.

Judgment affirmed.-