author: Mr. Presiding Justice O’Connor

text:
    George S. Walker, Surviving Trustee, Defendant in Error, v. Elizabeth Frances Walker et al., Plaintiffs in Error.
    Gen. No. 22,138.
    1. Wills, § 459

       — when devise or legacy lapses at common law. At common law a devise or legacy lapses where the devisee. or legatee dies before the death of the testator, except where made to a class and a member of the class dies before the testator, leaving other members of the class qualified to take.
    2. Wills, § 493* — what is purpose of section 11 of the Statute of Descent. The purpose of section 11 of the Statute of Descent (J. & A. H 4212), providing that whenever a devisee or legatee in any last will or testament, being a child or grandchild of the testator, shall die before the testator, and no provision shall be made for such contingency, the issue of such devisee or legatee shall take the estate the same as the devisee or legatee would have done had he survived the testator, is to prevent the lapsing of a devise or legacy to a child or grandqhild of the testator.
    3. Wills, § 494* — when legacy to grandchild lapses and property distributed as intestate property. Where a will provided that after the expiration of five years from the death of the testator the trustees of the estate should pay one-half of a certain sum to designated grandchildren, and ten years after his death the balance, share and share alike, held that it was the intention of the testator not to provide for the contingency of the death of a grandchild before his death and that a devise to such a grandchild lapsed and passed to the heirs of the testator as intestate property.
    4. Wills, § 262* — when husband is not heir of wife. Where a wife dies leaving a husband and also a child, the husband is not an heir of the wife if there is nothing in a will of the wife’s father, who had previously died to indicate an intention that his son-in-law should obtain possession of any part of his estate.
    5. Wills, § 394

       — what is general rule in regard to vesting of personal legacies. It is a general rule in regard to the vesting of personal legacies that if there are no independent bequests, but only a direction to pay at a future time, the vesting will be postponed until the time of payment has arrived.
    6. Wills, § 390* — when personal legacy vests at once. Where payment of a personal legacy or distribution is deferred for the convenience of the fund, the gift vests at once.
    7. Wills, § 391* — when vesting of legacies is postponed until time of division. It must be deemed the intention of a testator to postpone the time of payment of personal legacies for the personal benefit of the legatees and to provide against any improvidence on the part of the legatees so as to postpone the vesting of the legacies until the time for division, where the estate is a large one and there is a small bequest to the widow, together with small Annuities to her and a servant, and bequests aggregating six per cent, of the estate are set aside for grandchildren, and the estate is then to be divided into six equal parts by the trustees, and a distribution of one-half of these parts is directed to be made at the end of five years and the balance at the end of ten years, and one of the legatees was later adjudicated a spendthrift.
    8. Wills, § 226* — when intention of testator will be given effect in construing will. In construing wills the court will endeavor to give effect to the true intention and meaning of the testator, if this can be done without violating some well-established and positive rule of law, and such intention is to be ascertained from a consideration of the will and all of its parts.
    9. Wills, § 433* — when decree for construction of mil is not erroneous as warranting confiscation of estate by trustee. A decree in a suit for the construction of a will providing that the trustee shall distribute the estate in cash or in kind, or partly in cash or kind, “as may seem to said trustee to be for the best interest of the estate,” held not objectionable as warranting a confiscation of the estate, which consisted of stocks and bonds, in that it gave the trustee uncontrolled discretion to distribute the estate in cash or in kind, and if he decided to distribute the estate in cash it might amount to a confiscation, as his action would be subject to control of the court under such decree.
    Error to the Circuit Court of Cook county; the Hon. Thomas G. Wixdes, Judge, presiding. Heard, in the Branch Appellate Court at the March term, 1916.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed July 11, 1917.
    Rehearing denied July 23, 1917.
    R. Koenig, for plaintiff in error Irene DuVernet Rabell.
    William H. Gruver, for coplaintiffs in error Edwin Walker, Jr. and George S. Walker.
    Gerald Turnbull, for plaintiffs in error Charles Foley, individually and as conservator, and Earl Foley.
    George C. Otto, for plaintiff in error Chicago Title & Trust Company, as conservator, etc.
    Scott, Bancroft, Martin & Stephens, for Frederick Whiting; John E. MacLeish, of counsel.
    George H. Kriete, for defendant in error.

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

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Edwin Walker died testate April 27, 1910. His will was duly admitted to probate and afteiwards a bill was filed for the construction of certain provisions of the will. A decree was entered, to reverse which this writ of error is prosecuted.

All the property disposed of by the will is personal property. After making certain specific bequests to the widow, amounting to $6,000, the will provides: “I give, devise and bequeath all of the rest, residue and remainder of my estate, * * * to Dr. William Dougall, * * * and to my son, George S. 'Walker, * * * to have and to hold the same in trust, nevertheless, for the following purposes, viz.:”

The will then provides for the payment of all debts and directs that in addition to the $6,000 the wddow be paid ont of the income of the estate $1,800 per year in monthly payments, and further directs that monthly payments be made to Mary Redmond, a servant of the family.

The will then contains the following provisions:

“3rd. My said trustees shall keep my estate, coming into their hands or possession (except as aforesaid), together for the period of five years from the date of my death, during which time they shall manage and control the same and every part thereof, and conduct any business, at their discretion, for the benefit of my estate; they shall have full power to make investments in interest bearing securities or income producing property, and to change such investments when made; to buy, sell and convey property at such time or times as they may think best, to collect all interest and income and generally to do what in their judgment will be the best for my estate; and at the end of said five years my said trustees shall make provision for the payments as aforesaid to my said wife, Elizabeth Frances, and to the said Mary Redmond, out of income and profit, from a fund which they shall set aside and invest for that purpose, and after making such provision and setting aside said fund, and after setting aside the sum of seventy-five hundred ($7,500) dollars, for the three children of my deceased daughter Hettie Foley, my said trustees shall make an estimate of the value of my remaining estate, and divide the same into six equal portions, and pay and deliver one-half of one of said six portions to my daughter Catherine Dougall, wife of Dr. Dougall, if she be living at the time, and if she be not living at that time, then to pay and deliver the same to her child or children surviving at the time of my death in equal portions; to pay one-half of another of said six portions to my daughter Minnie Whiting, wife of Frederick Whiting, if she be living at the time, and if she be dead, then to pay said one-half that would go to her, to her child or children surviving at the time of my death, in equal portions; to pay one-half of fifteen thousand dollars, being the sum of seventy-five hundred dollars, to Cecil Foley, Earl Foley and Reginald Foley, the now surviving children of my deceased daughter Hettie, who was the wife of Charles Foley, to be divided equally between them; to pay one-half of another of said six portions to my son Edwin Walker, Jr., if he be living at the time, and if he be dead, then to pay the same to his child or children surviving at the time of my death, share and share alike; to pay one-half of another of said six portions to my son John H. Walker, if he be living at the time, and if he be dead, then to pay the same to his child or children surviving at the time of my death, share and share alike; to pay one-half of another of said six portions to my son Charles Walker, if he be living at the time, and if he be dead, then to pay the same to his child or children surviving at the time of my death, share and share alike; to pay one-half of the remaining one to the remaining one of the six portions to my son George S. Walker, if he be living at the time, and if he be dead, then to pay the same, to his child or children surviving at the time of my death, share and share alike.
“4th. All of the balance of my estate after making provision for payments aforesaid, and making the payments hereinbefore mentioned, as herein directed, shall be kept together and managed by my said trustees in such manner as in their opinion will be for the benefit of my estate until the expiration of the period of ten years from the date of my death at which time, (the expiration of ten years from the date of my death) if my -wife Elizabeth Frances and the said Mary Redmond be living, so that the provision for payment to them or either of them shall be kept up, as hereinbefore provided, then my said trustees, after making provision for the payments to them or to the survivor of them, if one be dead, so as to keep up the monthly payments, so long as either of them may be living, and after taking out seventy-five hundred dollars for the three children aforesaid of my deceased daughter Hettie Foley, then my said trustees shall divide my estate that is then remaining (except the amount invested in making provision for the monthly payments and except the sum taken out, as aforesaid) into six equal parts, and shall pay, convey and deliver one of said six parts to my said daughter, Catherine, wife of said Dr. Dougall; and pay, convey and deliver another of said six parts to my said daughter Minnie, wife of said Frederick Whiting; and pay, convey and deliver to Cecil, Earl and Reginald Foley, the now surviving children of my said deceased daughter Hettie, the said seventy-five hundred dollars, share and share alike; and pay, convey and deliver to my son Edwin Walker, Jr., another of sáid six parts; and pay, convey and deliver to my said son John H. Walker, another of said six parts; and pay, convey and deliver to my son Charles-Walker another of said six parts; and pay, convey and deliver to my son George S. Walker the last remaining of said six parts; and if at the expiration of said ten years my said daughter Catherine or my said daughter Minnie, or any of the said children of my said deceased daughter, Hettie, or my said son Edwin Walker, Jr., or my said son John H. Walker, or my said son Charles Walker or my said son George S. Walker, be dead, and should die without having received his or her part of my estate as aforesaid, then my said trustee shall pay, convey and deliver the share that would otherwise go to such deceased person, to his or her heirs at law, according to the statute of descent in the State of Illinois.
“5th. Upon the death of my wife Elizabeth Frances, the payment of one hundred and fifty ($150) dollars per month to her shall cease, and upon the death of Mary Redmond, the payment of twelve ($12) dollars per month to her, as hereinbefore provided shall cease, and after the death of both of them, if it be after the expiration of said ten years after the date of my death, my said trustees shall divide all of the residue and remainder in their hands or under their control, and that part of my estate heretofore set apart and held for the purpose of producing money to make the payments of said monthly sums out of the income and profit thereof, and all then remaining income, profit, property and increase, into six equal parts, and said six parts shall be then by said trustees, paid, conveyed and delivered, one to my said daughter Catherine Dougall, if she be living, and if not, then to her heirs at law, one to my said daughter Minnie Whiting, if she be living, and if not, then to her heirs at law, one to my said son Edwin Walker, Jr., if he be living, and if not, then to his heirs at law, one to my said son John H. Walker, if he be living, and if not, then to his heirs at law, one to my said son Charles Walker, if he be living, and if not, then to his heirs at law, and the remaining one-sixth to my said son G-eorge S. Walker, if he be living, and if not, then to his heirs at law. The share going to the heirs at law of any of those last named shall be divided among such heirs according to the statute of descent in the State of Illinois.”

Cecil Foley, a grandchild of the testator, died intestate twenty-two days prior to the death of the testator, without issue, leaving him surviving as his only heirs at law his father and two brothers, and the contention is that the court erred in holding that the legacy to him did not lapse, but passed to his heirs at law.

At common law a devise or legacy always lapses where the devisee or legatee dies before the death of the testator. There is an exception to this rule where the devise or bequest is made to a class and a member of the class dies before the testator, leaving other members of the class qualified to take. To prevent the lapsing of a devise or legacy to a child or grandchild of the testator, section 11 of our Statute of Descent (J. & A. ft 4212) was enacted. Pirrung v. Pirrung, 228 Ill. 441. The record discloses that Cecil Foley at the time the will was executed was about eighteen years of age. He was a grandson of the testator. The will provides that five years after the death of the testator the trustee shall pay one-lialf of $15,000, or $7,500, to Cecil, Earl and Reginald Foley, “to be divided equally between them,” and nothing is said as to what should be done in case any of the Foleys should then be dead. In paragraph four it is provided that ten years after the death of the testator the balance of the $15,000, or $7,500, be paid to Cecil, Earl and Reginald Foley, share and share alike, and if any of the said Foleys are then dead the trustees are directed to pay the same to their heirs. From the foregoing it clearly appears that the testator did not have in mind the death of any of the Foleys occurring before his death and made no provision for such a contingency. As Cecil Foley died before the death of the testator and left no children or grandchildren, the legacy to him lapsed and passed to the heirs of the testator as intestate property. Pirrung v. Pirrung, supra.

It is next contended that the court erred in holding-that Frederick Whiting is entitled as an heir of Minnie Whiting to a part of her legacy, under the fourth paragraph of the will. Minnie Whiting, daughter of the testator, died June 14, 1912, leaving her surviving her husband, Frederick Whiting, and her daughter, Irene DuVernet Rabell. The fourth paragraph of the will provides that the trustees, at the expiration of ten years from the death of the testator, after setting aside certain amounts, shall divide the balance into six equal parts, “and shall pay, convey and deliver one of said six parts to my said daughter Minnie, wife of- said Frederick Whiting.” It is then provided: “and if at the expiration of said ten years * * * my said daughter Minnie * * * be dead, and should die without having received * * * her part' of my estate as aforesaid, then my said trustees shall pay, convey and deliver the share that would otherwise go to” her to “her heirs at law, according to the statute of descent in the State of Illinois.” The fourth paragraph of section 1 of the Statute of Descent (J. & A. 4202) provides that where the deceased leaves a surviving husband and also a child, as in this case, such husband shall receive as his absolute property one-third of the personal estate of the intestate; and from this it is argued that Frederick Whiting is entitled to one-third of Minnie Whiting’s legacy.

Where a wife dies leaving a husband and also a child, the husband of the decedent is not an heir of the wife. Gauch v. St. Louis Mut. Life Ins. Co., 88 Ill. 251. But where a wife dies leaving no child or descendants thereof, but leaves a surviving husband, the husband is an heir of the decedent. Rawson v. Rawson, 52 Ill. 62; Richards v. Miller, 62 Ill. 417. In the colloquial or popular sense, a surviving husband is not ordinarily an heir of his deceased wife. Smith v. Winsor, 239 Ill. 567; Black v. J ones, 264 Ill. 548.

In the case at bar, as Minnie Whiting left her surviving a daughter, Mrs. Bab ell, it follows that her surviving husband; Frederick Whiting, is not an heir of his deceased wife within the technical or colloquial meaning of that term; and unless, upon a reading of the will, it can be said that it was the intention of the testator to include the said Frederick Whiting as an heir at law of his deceased wife, then he is not entitled to any portion of the bequest made to Minnie Whiting. Upon a careful examination of the will, we find nothing that would indicate that the testator intended that any persons, except his direct descendants, should share in his estate. There is nothing tending to show an intention that any son-in-law of his should obtain possession of any part of his estate.

A further contention is made by the plaintiff in error, Chicago Title & Trust Company, as conservator of John H. Walker, spendthrift, that the court should have found that the bequests ordered to be distributed at the end of ten years, and at final distribution, vested at the time of the testator’s death in the legatees, and that each of such legatees had “alienable and indestructible interests.”

By the fourth paragraph of the will, the testator, after making provision for certain payments, directed that, at the expiration of ten years from the date of his death, the estate be divided into six equal parts, and one of said parts be paid to each of his children, naming them; and further provided if any of his children “be dead, and should die without having received his or her part, * * * then my said trustees shall pay, convey and deliver the share that would otherwise go to such deceased person, to his or her heirs at law, according to the statute of descent in the State of Illinois.” Similar language appears in paragraph 5 in reference to the final distribution. It is argued that the words “heirs at law” are words of limitation- and not of substitution, and therefore each of the testator’s children mentioned in paragraphs 4 and 5 was vested at the time of the testator’s death with an alienable interest in the bequest that would be distributed at the end of ten years and subsequently.

It is a general rule in regard to the vesting of personal legacies, if there are no independent bequests, but only a direction to pay at a future time, the vesting will be postponed until the time of payment has arrived. Scofield v. Olcott, 120 Ill. 362; Knight v. Pottgieser, 176 Ill. 368. But if such payment or distribution is deferred for the convenience of the fund, as where a future gift is postponed to let in some other interest, as bequests to trustees to pay debts, the gift vests at once. Scofield v. Olcott, supra; Knight v. Pottgieser, supra. The question then is, was the payment of the legacies deferred for reasons personal to the legatees, or for the benefit, of the estate to let in some prior interest!

The estate consisted of property worth more than $250,000. There was a bequest of $6,000 to the widow, together with small annuities to her and a servant, and bequests of $15,000 to be set aside for the Foley children. After these provisions the estate was to be divided into six equal parts, and a distribution of one-half of these parts was directed to be made at the end of five years. Similar provisions were made for distribution at the end of ten years. It therefore clearly appears that the time of distribution was not postponed for the convenience of the fund or property, as there was ample funds to take care of the specific bequests, but that the time of payment was postponed for the personal benefit of the legatees. The testator intended to provide against any improvidence of his legatees, and it seems that, so far as John Walker was concerned, the provision was well founded, as it appears from the record that he has subsequently been adjudicated a spendthrift.

Furthermore, it is- fundamental that in construing wills the constant effort of the court is to give effect to the true intention and meaning of the testator, if this can be done without violating some well-established and positive rule of law, and such intention is to be ascertained from a consideration of the will and all its parts. It frequently occurs that established rules and precedents of a technical character are of little or no value in ascertaining the intention of the testator. Black v. Jones, supra. If the contention of counsel for the conservator of John J. Walker were sustained, i. e., that John H. Walker, at the time of the death of the testator, had an alienable interest in the property directed to be distributed at the end of ten years, then he would have the right at any time after the death of the testator to entirely dispose of his interest in such portion of the estate.

Counsel for the conservator of John H. Walker also contend that the decree is erroneous in providing that the trustees distribute the estate in cash or in kind, or partly in cash or kind, ‘ ‘ as may seem to said trustees to lie for the best interest of the estate.” It is argued that, under this provision, the trustees would have uncontrolled discretion to distribute the estate in cash or kind, and "if they decided to distribute the estate in cash, it consisting entirely of stocks and bonds, it might amount to a confiscation. We think this contention is not warranted by the language of the decree. If the trustees should decide to distribute the estate in cash and a sale of the personal property would practically amount to a confiscation, we think their action would be subject to control by the court under the decree. .

The decree of the Circuit Court of Cook county is affirmed in part, reversed in part and the cause remanded with directions to modify the decree in accordance with the views herein expressed.

Affirmed in part, reversed in part and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    E. Hanecy, Appellee, v. F. P. Read, Appellant.
    Gen. No. 22,270.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard .in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed July 11, 1917.
    Statement of tlie Case.
    Action by E. Hanecy, plaintiff, against F. P. Read, defendant, to recover $750 attorney’s fees, together with interest thereon. From a judgment for plaintiff for $907.29, defendant appeals.
    Abstract of the Decision.
    1. Appeal and error, § 438

       — necessity of pointing out variance in trial court. Where a particular variance is not pointed out in the trial court it is not subject to review.
    2. Account stated, § 7* — when created, An account stated is created where repeated promises to pay a claim are made at different times.
    3. Attorney and client, § 136* — what are questions for jury in action for services. In an action by one attorney against another for services in a case in which the second attorney was a party, held, on conflicting evidence, that whether plaintiff had overcharged defendant and whether his fees were to be dependent upon the outcome of the action were questions for the jury.
    4. Damages, § 244* — when error in admission and exclusion of evidence as to wealth of defendant is cured. Any error in allowing plaintiff’s counsel, in an action by an attorney, for services, to examine defendant as to the amount of property owned by him, and in refusing to permit defendant to show the amount of incumbrance on the property, held to be cured where the court instructed the jury that such evidence was immaterial, and that the wealth or poverty of either parties could not be considered in arriving at their verdict.
    5. Limitation oe actions, § 79* — when statute is tolled. An action for services of an attorney is not barred because an action was not commenced within five years next after the cause of action accrued where the running of the statute is tolled by repeated promises to pay.
    6. Trial, § 275* — when special interrogatories are properly refused. • The trial court does not err in refusing to submit special interrogatories to the jury where such interrogatories were not submitted to opposing counsel, as required by Rev. St. ch. 110, sec. 79 (J. & A. H 8616).
    Jonas 0. Hoover, for appellant.
    William A. Bogan, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Western Type Foundry, Appellee, v. John Canham, Appellant.
    Gen. No. 22,362.
    (Not to be reported in full.)
    Abstract of the Decision.
    Costs, § 67

       — when statutory damages for delay are properly awarded. Statutory damages for prosecuting an appeal for the purpose of delay are properly awarded where there is no evidence tending to sustain the defense in the trial court and the appeal was for further delay only.
    Appeal from the Municipal Court of Chicago; the Hon. Chables A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed with damages.
    Opinion filed July 11, 1917.
    Statement of the Case.
    Action by the Western Type Foundry, a corporation, plaintiff, against John Canham, defendant, on'a promissory note. From a judgment for plaintiff for $1,043.81, defendant appeals.
    Bowles & Bowles, for appellant.
    Vail & Vette, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice Taylor

text:
    James P. Monahan, Administrator, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 21,808.
    1. Insurance, § 659

      - — what is required to prove breach of warranty in denying existence of prior insurance. Proof of a breach of warranty in denying in an application for insurance the existence of prior insurance is not established merely by proving the existence of another policy, without further proof that the same was binding insurance when the application was made.
    2. Insurance, § 610* — when burden of proof is on defendant to establish affirmative defense. The defense that the insured had a life policy in another insurance company at the time the application was made, although he stated therein that he had a policy only in a third company, is an affirmative defense and the burden of proof is on the insurer to establish it.
    3. Insurance, § 610* — when insurer must prove poor health of insured at time of issuance of outstanding policy. Where an insurer claims the right to avoid a life insurance policy by showing that there was a policy outstanding at the time of the application which was not mentioned therein, and such outstanding policy provides that it shall not be operative until the payment for and delivery of the policy during the lifetime of the deceased and good health of the insured, it is necessary for defendant to Wove that insured was not in good health when the outstanding policy was issued.
    4. Insurance, § 603* — when burden of proving execution of application is on defendant. In an action on a life insurance policy, where there is an affidavit denying the signature of the insured to the part of the application containing the warranties, the burden of proving the execution of the instrument is on the defendant.
    5. Trial, § 79* — what evidence improper on surrebuttal. It is improper to supplement evidence in chief by way of surrebuttal.
    6. Insurance, § 659* — when evidence sufficient to show that deceased did not sign portion of application relating to warranties. In an action on a life insurance policy, where it appeared that an affidavit denying the signature of the insured to that part of the application containing the warranties was filed and the agent who wrote, the insurance and saw the insured sign other portions of the application based his testimony solely on the resemblance of the signatures, and the defendant’s medical examiner, who filled out the blanks containing the warranties was not called for the alleged reason that 'he had examined thousands of applicants and could not recall insured, evidence held sufficient to show that deceased did not sign the portion of the application relating to warranties.
    7. Estoppel, § 44

       — when representative of insured is not es-topped to deny genuineness of copy of application attached to policy. The fact that an insured receives and retains a life insurance policy to which is attached what purports to be a copy of his application, and does not object that the same is not a true copy, does not estop the administrator of his estate from denying that the purported copy attached to the policy is a true copy, where there is no proof that defendant was deceived by the conduct or silence of the insured and changed his position in consequence of such silence.
    8. Insurance, § 659* — what degree of proof required of defendant claiming existence of valid outstanding policy. In an action on a life insurance policy where the defense is an existing, .valid, out- ■ standing insurance policy at the time of the taking of the application not mentioned therein, the defendant is required to prove his defense with exactness.
    9. Insurance, § 663* — when evidence insufficient to show intentional false statement in application. Evidence held insufficient to show that insured intentionally made a false statement in his application that he had only a certain amount of insurance on his life.
    10. Appeal and error, § 1401* — when verdict not disturbed. Where there is evidence tending to support a verdict of a jury it will not be disturbed on appeal.
    Appeal from the Superior Court of Cook county; the Hon. William F. Cooper, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed July 11, 1917.
    Hoyhe, O ’ComsroR & Irwih, for appellant.
    Kurd, Brower & Hurlbut, for appellee.

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

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same (topic and sectipn nyjnber.

   Mr. Justice Taylor

delivered the opinion of the -court.

This is an appeal from a judgment in the Superior ■Court by the Metropolitan Life Insurance Company, appellant. The jury rendered a verdict for the sum of $3,000, interest and costs, in favor of appellee. There have been three trials in the Superior Court. The first resulted in a verdict in favor of appellee, which was set aside by the court and a new trial granted; the second trial resulted in an instructed verdict and judgment for appellant. On appeal to this court that judgment was reversed and the cause remanded (Monahan v. Metropolitan Life Ins. Co., 180 Ill. App. 390), whereupon the cause- was again tried, resulting in a verdict and judgment for appellee, from which this appeal is prosecuted.

The declaration upon the policy alleges that appellant insured the life of Patrick H. Fay, deceased, for the sum of $3,000, on a policy dated December 12,1903.

Appellant filed twenty-two pleas. The first plea is the general issue; the second and third averred that the insured was not in good health at the date of the delivery of the policy; the remaining pleas aver breach of warranties alleged to have been made by Fay in his application, which was made a part of the contract of insurance, and averred as ground of forfeiture that the insured was not in good health when the policy was delivered; that his answers in the 'application which were warranted to be true were untrue in numerous instances.

Appellee filed a special replication, which avers that it is provided in the policy that “after two years this policy shall be noncontestable except for the nonpayment of premiums as stipulated, or for fraud”; that the policy is dated December 12, 1903, and that within two years appellant had notice of the death of the insured, and of the fact that appellee claimed that appellant was liable under the terms of said policy on proper proofs of death of said Fay on or about October 28, 1905; that although the period between the date, appellant received such notice and the date of the expiration of two years from the date of the policy was ample time for appellant to make its election to rescind the policy for supposed breach of warranty set forth in the pleas, yet appellant gave appellee no notice whatever that it intended to contest said policy and appellant is barred, therefore, from claiming that the insured made or committed a breach of any of the alleged warranties.

A second special replication avers that appellee' was duly appointed administrator of the estate of the insured October 31, 1905; that appellant had ample time between the date of the notice of said claim and the date of the appointment of the administrator and the expiration of two years from the date of delivery of the policy to make a contest on the supposed breaches of warranty set forth in its special pleadings, yet appellant did not contest said policy within the two years after its date of delivery. To these two special replications a demurrer was filed, which was sustained by the court, and appellee elected to abide by the replications.

The chief defense is based on the alleged untruthfulness of the following statements made by the insured in his application:

“I have never had any of the following complaints or diseases: * * * disease of brain — * * * disease of urinary organs # * * insanity, * * * paralysis.
“I am now in sound health. I am not blind, deaf or dumb, nor have I any physical or mental defect or infirmity of any kind.
“The following is the name of the physician who last attended me, the date of the attendance, and the name of the complaint for which he attended me: Dr. Tiben, 1902, indigestion.
“I have not been under the care of any physician within two years unless as stated in previous line.
“I have no other insurance on my life except in the following named companies and for the following amounts; and by the word “company” I mean any company, association, society or order granting life insurance: Boyal league, $4,000.00.”

We shall consider here only the question as to the warranty against the existence of Other insurance at the time of taking out the policy now sued upon. The other matters, involving health and medical service, were submitted to the jury and we find no reason for further considering them.

It is claimed by appellant that the statement as to other insurance in the application was false, and being a warranty makes the contract void. A policy for the sum of $3,000, dated September 30, 1903, taken out by the insured in another company, the Fidelity Mutual Life Insurance Company, and a receipt for the same by the insured dated October 30, 1903, were introduced in evidence by the appellant. Bennett, the local manager of the company, testified that on the latter date he delivered the policy to the insured and took the receipt mentioned, on which his own name appears as a witness. Evidence of payment of the first premium was also offered. It is claimed by appellant that this policy became operative and a binding contract before the signing of the application in the case at bar. This contention depends, in part, for its validity on the date of the application in the instant case. In the present case the records show that an application was made in the appellant company in August, 1903. What became of it does not appear. The witness Boyle testified that it was for the sum of $5,000 and that the insured, subsequently, on November 27, 1903, made another application to appellant company for a policy of $3,000.- It is urged, however, by appellee that even though the application was subsequent to the. issuance of the Fidelity policy, there is n-o competent.evidence that the-insured was in good health at the time the Fidelity policy was delivered; that the provision in the Fidelity policy that states it shall not be binding unless at the time of its delivery the insured was in good health is a valid condition precedent and, until proof of fulfillment of the condition precedent to an insurance policy becoming effective, there is no valid insurance. It is doubtless true that proof of a breach of warranty in denying prior insurance is not established merely by proving the existence of another policy, without further proof that the same was binding insurance when the application was made.

The record shows that suit was brought (Monahan v. Fidelity Mut. Life Ins. Co., 148 Ill. App. 171, 242 Ill. 488) and judgment paid on the Fidelity policy ; that the court held the two-year incontestable clause was good and refused to consider all other matters and so did not adjudicate the question of “good health” of the insured.

Under the heading “General Precedent Conditions,” the Fidelity policy, put in evidence by appellant, provides that the contract “shall not be operative or binding until the actual payment of the initial premium and delivery of the policy during the lifetime and good health of the insured.” As stated above, payment of the premium and delivery of the policy were shown, but there is no evidence that the insured was in good health at that time. The law is that the- existence of prior insurance should be proven by showing that such insurance was valid and binding. Inasmuch as the defendant sought to defend by proving that the insured had a policy in the Fidelity Company, and as that is an affirmative defense, the burden of introducing sufficient evidence of that fact was upon the defendant. No presumptions which might arise on a suit upon the Fidelity policy could be indulged in, in a suit upon the policy in this case. The defendant to establish its defense of other insurance must not only prove the policy but that.its conditions as to good health were complied with. In the instant case, appellant claims the right to avoid its policy by showing the insured was not in good health when it was issued, and e converso, when appellant seeks to show that there was a policy outstanding at the time the insured made his application for the policy in question in this case, it must show that the insured was in good health when it (the Fidelity policy) was issued.

It is contended by the appellee that that part of the application containing the warranties mentioned was not signed by the insured. An affidavit denying the signature was filed by appellee. This put upon appellant the burden of proving the execution of the instrument. The oral evidence is conflicting and leaves the authenticity of the signature in doubt. None of the witnesses who testified on this matter saw the insured sign the name attached. Boyle, the agent who solicited this insurance, says he saw him (deceased) sign the Part “B” of the application, but not Part “C” that contains the warranties. His testimony as to the latter signature carries little weight as it is based solely upon its alleged resemblance to the admittedly genuine signature. Appellee testified: “It is not P. H. Fay’s signature. It is not even a good copy of it.” But his testimony on Fay’s handwriting given at the two preceding trials was so uncertain and unreliable that it cannot be considered of much weight. Appellant called a handwriting expert to testify on this question after appellee had put in his rebuttal, and on objection the court correctly ruled that it was improper to supplement evidence in chief by way of surrebuttal. The only person who could have testified positively to the signature in question was Dr. Sprague, appellant’s medical examiner who filled out the blanks containing the warranties. In answer to the question, why did he not testify? appellant’s counsel say: “Simply because Dr. Sprague has examined thousands of applications and it was impossible for him to recall Fay.” As it was incumbent on appellant to prove the signature by a preponderance, we are inclined to believe, in view of the evidence that was offered and 'which was submitted, that it cannot be said that a verdict that failed sufficiently to establish the genuineness of the signature would be clearly against the weight of the evidence. But it is urged by appellant that where a copy of the application is incorporated in the policy and as a part of the policy and remains in the possession of the insured, it is his duty to examine the policy and, if he retains it without complaint, his beneficiaries will be estopped from questioning it. As a general proposition, that is undoubtedly a correct statement of the rule laid down by our courts.- But in the present case a question is raised whether the application put in evidence by appellant was signed by the insured.

The fact that the insured received and retained the policy of insurance to which is attached" that which purports to be a copy of his application, and the absence of any evidence that insured objected that the same was not a true copy, did not estop the insured, and does not estop appellee, from denying that the purported copy attached to the policy is a true copy. There is no proof that appellant was deceived by the conduct or silence of the insured and changed his position in consequence of such silence. Holcomb v. Boynton, 151 Ill. 294; Mullaney v. Duffy, 145 Ill. 559.

Even if the insured withheld the' fact that he had $3,000 other insurance on his life, it is difficult to see how it worked any harm to appellant; yet some authorities seem to hold such concealment a breach of warranty sufficient to avoid a policy.

Not only absolute truthfulness is required, but the statements and answers of the insured must be strictly correct under the rulings in a majority of the decisions on this subject. And it naturally follows, reciprocally, that a corresponding exactness of proof, when denying liability, is required on the part of the insurer. In the present case there would seem to be no motive on the part of the insured to misstate the amount of insurance he held. A man situated as the insured was, carrying altogether $10,000 insurance on his life, would hardly be considered overinsured by the officials of any insurance company; and from the evidence, we are forced to the conclusion that it is highly improbable that deceased made such a false statement intentionally. The jury were instructed pointedly on this question as follows:

“If the jury believe from the evidence that at the time of the making of the application for the policy sued on, the insured, Patrick H. Fay, had insurance on his life in any company, association, society or order granting life insurance, except the Boyal League, the jury will find for the defendant.
“If the jury find from the evidence that at the time of the making of the application for the policy sued on, the insured, Patrick H. Fay, had insurance on his life in The Fidelity Mutual Life Insurance Company of Philadelphia, Pennsylvania, the jury will find for the defendant.”

The jury had submitted to them evidence as to the signature to the application, and as to the health of the insured, and they brought in a verdict against the appellant. Whether they concluded that the insured was not bound by the warranties in the application, on the ground that he did not sign it, or that he was not in good health when the Fidelity policy was issued, we do not know. All those matters were proper for the jury to consider, and as long as there was evidence tending each way we have no authority to criticise their verdict.

We have considered all the contentions of the appellee, and concluded that the judgment should be , affirmed.

Affirmed.


text:
    Anna Christensen, Defendant, in Error, v. Charles E. Johnston and Caroline Johnston, Plaintiffs in Error.
    Gen. No. 22,147.
    1. Husband and wife, § 76

       — when husband is liable for torts committed by wife. Under Rev. St. ch. 68, sec. 4 (J. & A. ¶ 6141), for all civil injuries committed by a married woman, damages may be recovered against her alone and her husband is not responsible therefor except in cases where he would be jointly responsible with her if the marriage did not exist.
    2. Torts, § 23* — when tort feasors are jointly liable. In order that tort feasors may be jointly liable, there must be some sort of community in the wrongdoing, and the injury must in some way be due to their joint work, hut it is not necessary that they be acting together or in concert if their concurring negligence occasions the injury.
    3. Automobiles and garages — what degree of care to avoid collision required of passenger in car. A husband who is a passenger in an electric automobile owned and driven by his wife is not ordinarily required to exercise the same diligence to avoid a collision with a motorcycle that his wife, the driver of the car, is.
    4. Automobiles and garages — when evidence is insufficient to. show negligence of passenger in car. In an action by a woman who was riding on the rear seat of a motorcycle against the owner and driver of an electric automobile and her husband jointly, to recover for. injuries due to a collision due to the motorcycle, which was approaching from the south and rear, colliding with the automobile as it turned east at a street intersection, where it appeared that as the front of the automobile turned to the right the husband saw the motorcycle coming and called out sharply “look out” and then his wife turned the head of the car a little west and north, evidence held insufficient to show that the husband was negligent.
    5. Appeal and error, § 1793* — when judgment' must be reversed as to both defendants sued jointly. Where a judgment is erroneous as to one of two defendants sued jointly, it must be reversed as to the other also.
    Error to the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed July 11, 1917.

      Brown & Pruitt, for plaintiffs in error.
    Walter S. Hull and Walther & Lanaghen, for de-' fendant in error.

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

   Mr. Justice Taylor

delivered the opinion of the court.

This is a writ of error brought by the plaintiffs in error, Charles E. Johnston and Caroline Johnston (hereinafter designated defendants), to review a judgment of the Municipal Court awarding $750 damages to the plaintiff (Anna Christensen, defendant in error) for injuries received by her May 30, 1912.

From the evidence it appears that the defendants, husband and wife, together with Alice Hurd, a nurse, were riding north on the east side of Bush street, Chicago, in an electric automobile being driven by the defendant Mrs. Johnston. Behind, and to the right of the automobile, the plaintiff was riding upon the rear seat of a motorcycle, which latter was owned and being driven by one Martin Christensen. The accident took place at the southeast comer of Bush street and Ontario street, although there is some testimony that it was at the intersection of Bush and Erie streets.

The theory of the plaintiff is that when the electric automobile approached the intersection of Bush and ..Ontario streets it suddenly turned to the right, towards the east, no warning being given, and in doing so ran into the motorcycle, or caused the motorcycle to run into the curb, by reason of which the plaintiff was thrown and injured; that the conduct of the defendants was in violation of a city ordinance. On the other hand, the theory of the defendants is that the motorcycle came up with great speed from behind and attempted to pass the machine on the right side, between it and the east curb, and that the accident was caused not by any negligence on the part of the driver of the automobile or by reason of any violation of an ordinance, but by the negligence of the driver of the motorcycle, in attempting to pass the automobile at a high rate of speed and on the wrong side of the machine.

The jury found both defendants (husband and wife), Charles E. Johnston and Caroline Johnston, guilty, and assessed the damages at $750 in tort. One of the contentions of the plaintiffs in error is that the verdict against the defendant Charles E. Johnston, the husband, is not supported by any evidence; that there was no cause of action proven against him. On the other hand, it is claimed by the defendant in error that the automobile was owned jointly by the defendants and was being used by them for a common purpose, that is, to take home a guest who had been visiting with them, and that defendants were jointly liable. The evidence shows that the electric automobile was bought for Mrs. Johnston, for her use; that it was paid for out of their joint funds; that Mrs. Johnston was the only one that drove the car at any time; that her husband had never even tried to drive.it. The testimony of Mrs. Johnston is that her husband made her a present of the car. At the time of the accident there were in the automobile Mr. and Mrs. Johnston and Alice Hurd. Mrs. Johnston was sitting on the left-hand side of the car and driving it. Mr. Johnston was sitting at the right of Mrs. Johnston and Alice Hurd was sitting in front, facing south. Mr. Johnston testified that as the front of the automobile turned to the right he saw the motorcycle coming, and he called out very sharply “look out”; that then Mrs. Johnston turned the head of the car a little west and north.

Of course it is the law in this State (section 4, ch. 68, Rev. St., J. & A. ¶ 6141) that “for all civil injuries committed by a married woman, damages may be recovered from her alone, and her husband shall not be responsible therefor, except in cases where he would be jointly responsible with her, if the marriage did not exist.”

In order that tort feasors may be liable jointly, it has been said that “there must be some sort of community in the wrongdoing, and the injury must be in some way due to their joint work; but it is not necessary that they be acting together or in concert if their concurring negligence occasions the injury.” Strauhal v. Asiatic Steamship Co., 48 Ore. 100. In the instant case it is difficult to discover anything, in any way, omission or commission, constituting negligence on the part of the husband. He omitted no duty. He did all that reasonably could be expected of him under the circumstances. The evidence does not in any way tend to show that he failed to do his full duty as a prudent man, under the circumstances; The law is not so unreasonable as to require a passenger to exercise the same quality of diligence as that of a driver.

As stated by Mr. Justice Thayer, in Clarke v. Connecticut Co., 83 Conn. 219:

“What conduct on the passenger’s part is necessary to comply with his duty must depend upon all the circumstances, one of which is that he is merely a passenger having no control over the management of the vehicle in which he is being transported. Manifestly, the conduct which reasonable care requires of such a passenger will not ordinarily, if in any case, be the same as that which it would require of the driver. While the standard of duty is the same, the conduct required to fulfil that duty is ordinarily different because their circumstances are different.” Odett v. Chicago City Ry. Co., 166 Ill. App. 270; Flynn v. Chicago City Ry. Co., 250 Ill. 460.

Of course whether or not the defendants co-operated' in the doing of an illegal act, and were together jointly liable for negligence, was a matter for the jury, and the jury were at liberty to find in favor of one and against the other, or for or against both. In this case the verdict was against both, but as the evidence, in our opinion, did not tend in any way to show negligence on the part of defendant Charles E. Johnston, the verdict as to him, that he was guilty of negligence, is clearly and manifestly against the weight of the evidence. Having reached that conclusion, the question then arises whether the judgment can be sustained as to the other appellant, Mrs. Johnston. In Seymour v. O. S. Richardson Fueling Co., 205 Ill. 77, the court said:

“An entire judgment against several defendants cannot be affirmed as to one and reversed as to the others. (Hays v. Thomas, Breese, 180.) Where the judgment is entire, there must be a total affirmance or reversal.”

And in West Chicago St. R. Co. v. Morrison, Adams & Allen Co., 160 Ill. 288, the court said:

“It is also a rule applicable to trespass, as well as to all other actions at law, either for torts or upon contracts, that the judgment is a unit as to all the defendants against whom it has been rendered and cannot be reversed as to one or more and affirmed as to the others, but if erroneous as to one is erroneous as to all.”

It follows, therefore, that as the judgment of the lower court is against both defendants, one of which we find is not liable, the judgment must be reversed. There is grave doubt whether there is sufficient evidence of the negligence of the defendant Mrs. Johnston, unless she was guilty of violating a city ordinance. That, however, is a subject which the plaintiff is entitled to have considered by another jury. Whether or not the evidence in this record would support a judgment against the defendant Mrs. Johnston alone, is a matter which, < of course, we are not entitled now to consider.

Inasmuch, therefore, as the judgment against the defendant Charles E. Johnston was clearly and manifestly against the weight of the evidence, and as the judgment against the defendants cannot he affirmed as to one and reversed as to the other, the judgment in this cause is reversed and the cause remanded.

Reversed and remanded.


text:
    George H. Mayr, Defendant in Error, v. United States Brewing Company of Chicago et al. Edward A. Perreault, Plaintiff in Error.
    Gen. No. 22,190.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed July 11, 1917.
    Statement of the Case.
    Action of forcible entry and detainer by George H. Mayr, plaintiff, against the United States Brewing Company of Chicago and Edward A. Perreault, defendants, to obtain possession of certain premises. From a judgment for a writ of restitution in favor of plaintiff, defendant Edward A. Perreault brings error.
    S. E. Lambert, for plaintiff in error.
    Enos W. Shaw and Will 0. Moody, for defendant in error.

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

   Mr. Justice Taylor

delivered the opinion of the court.

Abstract of the Decision.

1. Forcible entry and detainer, § 79 — when lease is admissible as evidence of title. In an action of forcible entry and detainer against an occupant of saloon premises, held that a lease from a lessee of such premises to defendant antedating the acquisition of the premises by the plaintiff was admissible in evidence to show defendant’s title.

2. Landlord and tenant, § 429* — when no privity of relation is created between sublessee and subsequent owner. There is no privity of relation between the occupant of premises under a sublease, antedating the sale of the land to another person, and such person, although the latter executes a new lease to the same lessee from whom the sublessee obtained the prior lease.

3. Landlord and tenant, § 429* — when sublessee’s rights are not affected by new lease of lessee from subsequent owner. The rights of a sublessee under a lease antedating the acquisition of premises by a person are not affected by a lease from such person to the lessee under whom the sublessee has been holding.

4. Landlord and tenant, § 429* — when sublessee does not lose his rights under lease. A sublessee does not lose his rights under a lease, where, upon the sale of the premises, and the execution of a new lease to the original lessee by the purchaser, he pays rent to the lessee and later to the lessee’s assignee, and, prior to the default in the rent due from the assignee to the owner, and upon refusal of the assignee to accept the rent, timely tenders the rent due to the owner of the premises.


text:
    George A. Trude, Appellee, v. Frank D. Fulton, Appellant.
    Gen. No. 22,430.
    (Not to be reported in full.)
    Abstract of the Decision.
    Bills and notes, § 320

       — who may bring action on note. The legal holder and owner of notes may bring an action thereon in his own name, although the proceeds, after deduction of attorney’s fees for his own services, belong to a third person.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Cemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed July 11, 1917.
    Statement of the Case.
    Action by George A. Trude, plaintiff, against Frank D. Fulton, defendant, to recover on two promissory notes. From a judgment for plaintiff for $2,680, defendant appeals.
    Fulton, Garey & Deutschman, for appellant.
    Benjamin B. Kahane, for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Hill Binding Company, Defendant in Error, v. F. J. Koch Company, Plaintiff in Error.
    Gen. No. 22,484.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Corporations, § 370

       — when use of first person in note does not avoid liability of corporation. The use of the expression “I promise to pay” preceding a signature to a note which is the name of both the president of a corporation, who signs the note and procures the money for the corporation, and the corporation itself, does not avoid the liability of the corporation, especially where the corporation has the benefit of the money.

      Error to the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed July 11, 1917.
    Rehearing denied July 23, 1917.
    Statement of the Case.
    Action by the Hill Binding Company, plaintiff, against F. J. Koch Company, defendant, to recover on two promissory notes, signed, “F. J. Koch,” by the president of the company bearing such name. From a judgment in favor of plaintiff for $846.25, defendant brings error.
    The name of defendant corporation at the time of the execution of the notes was F. J. Koch. Each note contained the words “after date I promise to pay” and the proceeds of the notes were used in the business of the F. J. Koch corporation.
    Samuel K. Markman and Francis E. Hinckley, for plaintiff in error.
    Campbell & Fischer, for defendant in error; John D. Peterson, of counsel.

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

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

   Mr. Justice Taylor

delivered the opinion of the court.

2. Corporations, § 515 — when parol evidence is admissible to show character of signature to notes. Whether notes signed by the president of a corporation, who has the same name as the corporation itself, are personal or corporate, is a matter of fact and not of law, and evidence is admissible to show whether the signature was intended to be that of the president personally or of the corporation.


author: Mr. Presiding Justice Barnes

text:
    The People of the State of Illinois, Defendant in Error, v. Edward A. Jones, Plaintiff in Error.
    Gen. No. 22,274.
    (Not to be reported in full.)
    Error to the Criminal Court of Cook county; the Hon. Charles M. Thomson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed July 19, 1917.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Edward A. Jones, defendant, for a conspiracy with one Clark and persons unknown to induce Arthur and Julia Lambercier to leave the State so that they could not be produced as witnesses at the trial of one Harry Watson upon the criminal charge, then pending, of obtaining money from the Lamberciers by means of the confidence game. From a judgment of conviction, defendant brings error.
    John M. Lonergan and Samuel E. Foos, for plaintiff in error; Zach Hofheimer, of counsel.

      Abstract of the Decision.
    1. Conspiracy, § 50

       — when evidence is sufficient to sustain conviction for by attorney and others to induce witnesses to leave State. In a prosecution against an attorney representing the defendant in a criminal prosecution for obtaining money by means of the confidence game for conspiracy in inducing the victims, who were witnesses, to leave the State so that they could not he produced at the trial, evidence held sufficient to sustain a conviction.
    2. Conspiracy, § 49* — when erroneous admission of evidence is harmless. In a prosecution against an attorney representing the defendant in a criminal prosecution for obtaining money by means of a confidence game for conspiracy in inducing the victims, who were witnesses, to leave the State so that they could not be produced at the trial of his client, held that the admission of the details of the confidence game was harmless error where defendant had impliedly admitted that his client was guilty by attempting to make a restitution of the money taken for him and the charge against defendant was supported by overwhelming proof.
    3. Conspiracy, § 49* — when telephone conversation with confederate of accused is admissible. In a prosecution against an attorney representing the defendant in a criminal case for obtaining money by means of the confidence game for conspiracy in inducing the victims, who were witnesses, to leave the State, held that a telephone conversation by one of such witnesses from her room in a hotel, with an unknown confederate as to whether they would leave right away, the witness replying in the affirmative, and the confederate saying that he would “be up in a minute,” was admissible as an act in furtherance of the conspiracy, where shortly afterwards a party appeared and said that he would take them to their station right away, and, upon their refusing to leave the room without getting the money, that he would have to see the “lawyer,” and, where a few minutes after he left, defendant and another person appeared and made arrangements for the payment of the money.
    4. Conspiracy, § 49* — when admission of hearsay is harmless

      error. The admission of evidence of a detective in a criminal prosecution for conspiracy in inducing witnesses in another criminal prosecution to leave the State, that one of such witnesses detailed to him respecting a conversation over the telephone with an unknown conspirator relative to their leaving the State, although improper as hearsay, held to be harmless error where the same uncontradicted conversation was testified to by the person holding the conversation with the conspirator.

      Maclay Hoyne, for defendant in error; Edward E. Wilson, John F. Cashen and J. M. Dickinson, Jr,, of counsel.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

5. Conspiracy, § 49 — when exclusion of evidence in prosecution for conspiracy is immaterial. The exclusion of evidence of an attorney who was defendant in a criminal prosecution for conspiracy in inducing witnesses in another criminal prosecution, for obtaining money by means of a confidence game, to leave the State and not testify at the trial of his client, that the client told him of an alleged conversation between the client and detectives who arrested defendant about returning the money and all that his client had told him in connection therewith, as bearing upon his motive in returning the money, held to be immaterial where defendant admitted that he got a certain sum from his client for the purpose of returning the money taken from the .victims and for adjusting another case and fully stated what his motive was in going to the victims’ room in the hotel.

6. Criminal law, § 542* — fwhen improper conduct of assistant State's Attorney may not Oe complained of. The improper condu t of the assistant State’s Attorney in a criminal prosecution in calling the defendant a liar while he was on the witness stand cannot be complained of where it immediately follows and is provoked by an equally improper allusion to the assistant State’s Attorney by the defendant.

7. Conspiracy, § 54* — when putting of improper question to character witness is not ground for reversal. The mere putting of an improper question by the State’s Attorney to one of the character witnesses for defendant in a prosecution for conspiracy which rehearsed defendant’s part in the conspiracy charge, held not ground for reversal where the judgment was supported by convincing evidence.

8. Criminal law, § 315* — when refusal of instruction is proper. The refusal of a proper instruction in a criminal case which is covered by a given instruction is not error.

9. Criminal law, § 508* — when presumed that refused instruction is fully covered 0y other instructions. It will he presumed on appeal in a criminal case that a proper refused instruction is fully covered by other instructions where the abstract does not purport to show all of the instructions given by the court.


text:
    Alonzo J. Cutler, Appellant, v. Charles W. Pardridge, Appellee.
    Gen. No. 22,293.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1725

       — token decision on former appeal is binding. The decision of the Appellate Court on a former appeal is binding as the law of the case on the same questions on the second appeal.
    2. Boards of trade and exchanges, § 42* — when defendant must show damage by breach of contract of credit with brokers. The right of a broker to recover money paid out by him for losses in “open trades” on the Board of Trade of a customer for the failure of the latter to put up margins to secure them cannot he defeated merely because of the existence of a contract of credit and breach thereof by plaintiff, but defendant must show by competent evidence that he was damaged by such breach.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed July 19, 1917.
    Statément of the Case.
    Action by Alonzo J. Cutler, plaintiff, against Charles W. Pardridge, defendant, to recover money paid out by plaintiff as broker for defendant for losses in certain transactions on the Board of Trade of the City of Chicago. From a judgment for defendant, plaintiff appeals.
    Henry S. Robbins, for appellant.
    Bradley, Harper & Eheim, for appellee; Thomas E. D. Bradley and Jacob Newman, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Bamberger-Stern Company, Appellee, v. A. Anderson, A. Dowdle and H. Wilson, trading as “Anderson,” Appellants.
    Gen. No. 22,586.
    1. Pleading, § 38

       — how affidavit of merits construed. An affidavit of merits must be construed most strongly against the pleader.
    2. Municipal Court of Chicago, § 13* — what is effect of abiding by affidavit of merits after it is stricken from files. Where a defendant abides by his affidavit of merits after an adverse ruling on a motion by plaintiff to strike the affidavit of merits from the files, he must be deemed to have accepted the issue raised.
    3. Corporations, § 705* — when compliance with statute as to admission of foreign corporations to do business in State is unnecessary. Compliance with Hurd’s Rev. St. 1916, ch. 32, par. 67g (J. & A. If 2531), regulating the admission of foreign corporations to do business within the State, is unnecessary unless the business referred to therein is done in this State.
    4. Corporations, § 769* — when presumed that contract of foreign unlicensed corporation was made without State. In the absence of an allegation in an affidavit of merits, in an action by a foreign corporation unlicensed to do business within the State, to recover for goods sold, that the contract was made in the State, it will be presumed that it was legally made outside of the State and one of interstate commerce, to which the right to maintain an action for goods sold is an essential incident.
    . 5. Corporations, § 736* — right of foreign unlicensed corporation to maintain actions to collect money on interstate contract. Hurd’s Rev. St. 1916, ch. 32, par. 67g (J. & A. If 2531), regulating the admission of foreign corporations to do business within the State, should not be construed so as to exclude a corporation from the right to maintain an action to collect money due on an interstate transaction.
    - Appeal from the Municipal Court of Chicago; the Hon. William N. G-emmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed July 19, 1917.
    Baker & Holder, for appellants.

      Moses, Rosenthal & Kennedy, for appellee; Julius Moses and Henry Jackson Darby, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This appeal is from a judgment for money due for goods and merchandise sold by appellee, a foreign corporation, to appellants, entered in default of an affidavit of merits after appellants had elected to abide by their amended affidavit stricken from the files on appellee’s motion.

The basis of the stricken affidavit is that appellee (the plaintiff) could not maintain the suit because at the time of its commencement it was a foreign corporation of the class amenable to the provisions of the act regulating the admission of foreign corporations to do business in this State, and was transacting business in this State without compliance with said act. (Chapter 32, par. 67g, Hurd’s Rev. St. 1916, J. & A. ¶ 2531.)

The record discloses that the motion to strike was allowed mainly, if not wholly, on the ground that the affidavit did not allege that the transaction sued on was not one of interstate commerce. In support of this position appellee urges, and we think correctly, that even though a foreign corporation may be doing business in this State without complying with said act, it can maintain a suit based entirely on an interstate commerce transaction, and that, as under a familiar rule of pleading, the affidavit must be construed most strongly against the pleader, it will be presumed that the transaction sued on was one of that character in the absence of an averment in the affidavit to the contrary. From the force of this contention, appellants seek shelter under the liberal form of pleadings employed in the- Municipal Court. But as they saw fit not to amend their affidavit after the point was raised, and elected to abide by the same after an adverse ruling thereon, they must be held to have accepted the legal issue thus raised.

It was held in Lehigh Portland Cement Co. v. McLean, 245 Ill. 326, that the act in question by its terms applies only to such foreign corporations “as are amenable to the provisions of this act/’ and that foreign corporations engaged in interstate commerce are exempt from the penalties prescribed in section 6 thereof. From that decision and the authorities therein discussed, it is .apparent that compliance with the act is not necessary unless the business referred to therein is done in this State. In the absence of an allegation in the affidavit to that effect, therefore, the contract will be presumed to have been made legally outside of the State (Beale on Foreign Corporations, sec. 255, p. 382), and therefore one of interstate commerce, to which the right to maintain suit for goods sold thereunder is an essential incident. In Sioux Remedy Co. v. Cope, 235 U. S. 197, it was said that “the right to demand and enforce payment for goods sold in interstate commerce is directly connected with, and essential to, such commerce, and the imposition of unreasonable conditions on such right operates as a burden and restraint upon interstate commerce.”

Section 6 of the Act relating to foreign corporations should be given a construction, if possible, not inconsistent with the commerce clause of the federal constitution. We think, therefore, that though a foreign corporation engages in intrastate business without complying with said act, the act should not be construed so as to exclude it from the right to maintain an action to collect money due on an interstate transaction. Language, seemingly to the contrary and broader than the facts justified, has been employed in previous decisions in this court, and similar language is cited from J. Walter Thompson Co. v. Whitehed, 185 Ill. 454. But there the Indebtedness sought to be recovered grew out of contracts entered into in the State of Illinois. In none of these cases was the precise point before the court that is raised here. We think the penalties prescribed by the act apply on only such transactions by foreign corporations as constitute doing business in this State without first complying with the conditions prescribed by the act. Holding as we do, therefore, that in the absence of an averment in the affidavit that the business out of which the cause of action arose was done in this State, the transaction must be presumed to be one of interstate commerce upon which an action will lie in this State even though the corporation may be doing a local business in contravention of the statute, we think the motion striking the affidavit from the files was properly allowed and that the judgment should be affirmed.

Affirmed.


text:
    George Runions, Appellee, v. Albert Kirk et al., Defendants. On appeal of G. Whittier Gale and Mary Elizabeth Trumbull, Appellants.
    Gen. No. 22,642.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded.
    Opinion filed July 19, 1917.
    Statement of the Case.
    Bill by George Bunions, complainant, against Albert Kirk, G. Whittier Gale and Mary Elizabeth Trumbull, defendants, to foreclose a trust deed which secured a principal note for $6,500 and certain interest coupons of which he was then owner, and cross-bill by defendant Gale, a prior owner of the premises, asking that complainant be enjoined from collecting said interest coupons and from asserting any lien against the premises. From a decree dismissing the cross-bill as without equity, defendants Gale and Trumbull, the present owner of the premises, appeal.
    Abstract of the Decision.
    1. Notice, § 29

       — when purchaser of land put upon inquiry. The notice of a mortgage afforded by the records puts the purchaser of land on inquiry as to its amount at the time of his purchase.
    2. Mortgages, § 503* — when evidence shows that mortgagee did not represent to purchaser that interest coupons were paid. On a
    ..bill to foreclose a real estate mortgage, evidence held sufficient to show that the mortgagee did not represent to a purchaser from the mortgagor that certain interest coupons had been paid.
    3. Mortgages, § 205* — when mortgagee not estopped from asserting lien for amount due on interest coupons. On a bill to foreclose a real estate mortgage, evidence held sufficient to show that representations by the mortgagee to the purchaser of the land from the mortgagor that certain interest coupons had been paid were insufficient to estop tlie mortgagee from asserting a lien for the amount due on such coupons.
    Smietanka, Johnson & Wolthrop, for appellants.
    • George D. Wellington and Ernest W. Clark, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Gleeson Brothers Company, Appellee, v. J. M. Callahan, Appellant.
    Gen. No. 22,671.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Judgment, § 142

       — when affidavits in support of motion to vacate judgment by default are insufficient. It is no abuse of discretion on the part of the trial court in refusing to vacate a judgment by default on motion supported by affidavits, where one of the affidavits is by defendant and alleges that he employed a certain attorney, had no personal knowledge that the case was to be tried the particular time and that he had a meritorious defense, and the other is by his attorney that he was ignorant of the rules of court under which the trial was had.
    2. Appeal and error, § 1313* — presumption that court followed rules in calling case. It will he presumed on appeal that the trial court followed its rules in calling a case for trial.
    Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed July 19, 1917.
    Statement of the Case.
    Action on a contract by Gleeson Brothers Company, plaintiff, against J. M. Callahan, defendant. From a judgment for plaintiff for $169 and costs, defendant appeals.
    Daniel Jerka, for appellant.
    No appearance for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. F. J. Waddell, Plaintiff in Error.
    Gen. No. 23,011.
    (Not to be reported in full.)
    Abstract of the Decision.
    Assault and battery, § 31

       — when evidence sufficient to sustain conviction for assault with deadly weapon. Evidence held sufficient to sustain a conviction for committing an assault with a deadly weapon, in violation of section 25 of the Criminal Code (J. & A. If 3507).
    Error to the Municipal Court of Chicago; the Hon. Samuel H. Tbude, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed July 19, 1917.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against P. J. Waddell, defendant, for a violation of section 25 of the Criminal Code (J. & A. if 3507). From a judgment of conviction, defendant brings error.
    Beauregard F. Moseley, for plaintiff in error.
    Maclay Hoyne, for defendant in error; J. M. Dickinson, Jr., of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Walter Speedy, Plaintiff in Error.
    Gen. No. 23,013.
    (Not to be reported in full.)
    Abstract of the Decision.
    Prostitution, § 4

       — when evidence is insufficient to sustain conviction for pandering. Evidence held insufficient to sustain a conviction for pandering, where it appeared that the information was brought upon the complaint of the alleged inmate; that she opened a house of prostitution where accused visited her and had sexual relations with her, and that he gave her some money, which he claimed was a loan, and which was used by her in buying furniture for the house.
    Error to the Municipal Court of Chicago; the Hon. Samuel H. Trude, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Reversed.
    Opinion filed July 19, 1917.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Walter Speedy, defendant, for pandering. From a judgment of conviction, defendant brings error.
    Lawrence E. Dowd, for plaintiff in error; F. L. Barnett and Charles P. B. Macaulay, of counsel.
    Maclay Hoyne, for defendant in error; George C. Bliss, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.