text:
    Katherine E. Maloney, Appellee, v. North American Union, Appellant.
    Gen. No. 13,958.
    1. Insurance—wliat not warranties. Answers or alleged answers written into an application by an agent deputed to secure members, inserted long after the signature of the applicant, do not constitute warranties.
    2. Insurance—when defense of fraudulent concealment not sustained. Held, under the evidence in this case, that the defense interposed of “fraudulent evasion and concealment” entirely failed.
    3. Insurance—what not warranty against past illnesses. The •following answer; “I * * * have no injury or disease which will tend to shorten life; am now in good health,” being in the present tense, is not a warranty against past injuries or diseases.
    4. Evidence—what witness may not he impeached. A written statement made by a witness is not competent when used by the party who produced such witness if the effect of the production of such written statement is to impeach such witness.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed October 8, 1908.
    R. E. Hamilton, for appellant; Robert S. Iles, of counsel.
    William C. Asay and Jeremiah B. O’Connell, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

The plaintiff in this case recovered in the Municipal Court of Chicago a judgment of $1,045.76 against the defendant, a fraternal order, of which one Steven A. D. Kellett, the husband of the beneficial plaintiff, had in his lifetime been a member. The judgment was based on the instructed verdict of a jury. From it the defendant appealed to this court, assigning various errors, which in argument resolve themselves into the refusal of the trial judge to admit certain matters offered in evidence by the defendant, and his peremptory instruction, to the jury .to find for the plaintiff in the sum named.

The certificate of membership of Steven A. D. Kellett in the North American Union was first offered in evidence by the plaintiff. It was issued to him under date of October 24, 1905, and provided:

“That upon condition that the statements made by said member in his application for membership, the representations, statements and agreements, made and subscribed by him in the medical examiner’s blank and the answers made and certified by him to the medical examiner, all of which representations, agreements, statements and answers are hereby acknowledged and declared by him to be warranties, be made a part of this contract, and upon condition that the said member complies with all the Laws, Bules and Begulations now governing the said North American Union and the members thereof, and the Mortuary and Beserve Funds thereof, and that may hereinafter be enacted to govern the same, all of which said Laws, Bules and Begulations are also made a part of this contract, and upon said member assenting to and complying with all the conditions herein provided, the North American Union does hereby promise to pay out of its Mortuary Fund to Katherine E. Maloney, related to him as sister, the sum of One Thousand Dollars, in accordance with and under the provisions and the laws governing the said fund, upon satisfactory proofs of the death of said member, and upon the surrender of this certificate, provided that said member is in good standing in this Association at the time of his death, and provided also that this certificate shall not have been previously surrendered by said member or canceled in accordance with the laws of this Association.”

The death of Steven A. D. Kellett on the 25th day of January, 1906, was admitted, and it was also admitted that he died in good financial standing with tlie company, that his assessments were paid for November and December, 1905, and January, 1906; that the proofs of his death were made in the proper time to the company, and demand therefor was made within three months after his death, and that payment was refused.

The plaintiff then offered in evidence an assignment of the claim on the certificate or policy, as follows: “I hereby assign all right and title in policy No. 22239 issued by the North Américan Union for $1,000, against the life of Stephen A. D. Kellett, to Mrs. Catherine E. Maloney, his sister, to Mrs. Nellie Kellett, wife of above named Stephen A. D. Kellett, deceased,” and rested.

The defendant had pleaded the general issue and also three special pleas, one setting up untrue answers in the application, alleging them to be warranties, and that their falsity and evasion and concealment in other answers avoided the policy; the others are that the policy was obtained by fraud and conspiracy for a person in an unhealthful condition, and was void.

The defense that there was a conspiracy to obtain this insurance was abandoned by the defendant in opening to the jury, and it relied entirely on the position that certain warranted statements in the application by the deceased were untrue, and that the deceased had been guilty of evasion and concealment when being examined for the insurance.

To substantiate this defense the defendant first presented as *a witness Dr. Bepogie, a physician residing in- Chicago, who said that in October, 1905, he was appointed Medical Examiner for the North American Union, and was also deputed to secure members. He said he pressed the deceased to join and secured his application with difficulty. “I coaid see,” he testified, “that if I didn’t push him I would not land him. I says, ‘Just sign this paper,’ and * * * he signed it on the wall.” The paper which was signed was tendered in evidence. It was in four pages. The first page is entitled “Medical Examiner’s Blank of the North American Union.” With the exception of the applicant’s name, birth place, age, etc., it is all _ in print. The only matters claimed by the defendant to be of importance in this controversy in it, .except a clause which warrants the truthfulness of the statements made therein, and consents that any untrue or fraudulent statements or any evasive answers or concealment or suppression of facts by the applicant, whether the same are material or not, shall forfeit and determine the benefits in the benefit certificate which may be issued thereon, are the words:

“I am temperate in my habits and have no injury or disease which will tend to shorten my life, am now in good health and able to gain a livelihood;” and the words:

“I do hereby certify that I have read the foregoing and fully understand the same.”

This page was signed by Kellett as applicant and countersigned by Dr. Repogle as Medical Examiner.

The second and third pages are entitled “Applicant’s Certificate,” and contain 119 printed questions with answers written to most of them in ink. At the end of them are the printed words: “I hereby warrant truthfulness of all the answers to the above questions,” and the signature, “Steve A. D. Kellett, applicant.”

The fourth page was the “Medical Examiner’s Certificate,” signed only by him.

On further examination of Doctor Repogle it appeared that the paper was entirely blank except as to the printed matter when it was signed in the two places by Kellett at the instance and urging of the Doctor, and that it was so signed in both places before the Doctor asked Kellett any questions in regard to his health; also that it was so signed by Kellett on October 19th and the written matter inserted by the Doctor on October 22nd.

Under these circumstances the court admitted the first page in evidence but rejected the 2nd, 3rd and 4th pages. We think this rejection was proper. Illinois Mason’s Benevolent Society v. Winthrop, 85 Ill. 537; The Royal Neighbors of America v. Boman, 177 Ill. 27.

It is needless to inquire whether the “answers” were warranties, the inaccuracy of which would avoid the policy, since as a matter of fact they were not “answers” at all, were not signed by the applicant, and were written in by an agent of the defendant ‘ ‘ deputed to secure members”, long after the signature.

Certain questions, however, were asked by the Doctor of Kellett after the signatures were secured. One of them, and the answer thereto, was testified to by Dr. Bepogle as follows:

“Q. Now what questions did you ask him in regard to his health and his previous past condition?

A. I asked him whether he ever had any serious illness or injury, after I got through examining him physically.

Q. What did he say?

A. He pointed to a scar on his head and replied that he had been stabbed. I don’t know whether he said he was stabbed or cut or shot, but stabbed or shot. He said he was shot or stabbed, one of the two, up here (indicating), just a scalp wound, took a couple of stitches or "something like that, and I found it wasn’t of any serious consequence in my examination.

Q. What, if anything, did he say about his health?

A. He did not reply except in that way.”

We are unable to see that, assuming that Kellett had had a serious illness—as the evidence afterward tended to prove—this answer, relied on by the defendant to show “a fraudulent evasion or concealment” which would avoid the policy, had any such tendency, or should have gone to the jury on the theory that they should be allowed to judge whether or not it did.

It was not a refusal to answer; it was the pointing out of one “injury,” and not a "concealment or evasion” as to others. The medical man—who was the agent of the Society—should have inquired further if he desired to know. A reason for his not doing so perhaps can be gathered from his testimony, in which he says:

“I told him to take off his coat * * * He removed his coat and I took his measurement around the waist—inspiration; * * * took his vest off; took his pulse; examined his heart with a stethescope. He was a well developed man; he looked like a good risk—better than any of you fellows here. I examined his heart carefully. While I was examining him he made the remark, I have been an athlete for some club down town,’ and he looked like an athlete, and I examined his heart then more carefully, because athletes usually have a weak heart; sometimes they do. * * * I found nothing the matter with his heart at all; he had good expansion, lungs were good; in fact he looked so good that * * * I got through with the examination very quickly without asking many questions, because I took it for granted he was all right. I had a bottle with me and after I got through I asked him to fill it for me. I mean for specimens of urine. When I examined him his shirt was up. I examined his naked skin. * * * He didn’t have a pimple on him or anything.”

Irrespective, therefore, of whether or not the proof showed that the insured had, prior to this examination, a “serious illness or injury,” this attempt to show “fraudulent evasion and concealment”—an affirmative defense—entirely failed and should not have prevented, as it did not, an instruction that there' was no defense to the action.

The first page of the “Medical Examiner’s Blank,” however (which first page was received in evidence), contained the statement, signed by the applicant, “I * * * have no injury or disease which will tend to shorten life; am now in good health,” etc. This statement is warranted by the terms of the application, and the applicant signed the same and a certificate that he had read and fully understood the same.

We shall assume, without reference to the circumstances under which he signed this, that the statement was a warranty and that the deceased was bound by it. But with some hesitation we have come to the opinion that there was neither any evidence offered and received nor—when taken in connection with the proven and admitted facts—any offered and excluded, which would have "proven the falsity of this statement.

It was in the present tense; it was a statement of his present condition. To show its falsity the defendant introduced the testimony of Dr. McCandless, who testified that in 1903, two years, that is, before the application, he had treated the deceased for syphilis during six months. But McCandless also testified in his direct examination, in answer to the interrogatories of the plaintiff’s counsel, as follows:

“Q. You may state whether or not syphilis is a disease that would tend to shorten the life of a person that was afflicted with it to the same degree that this patient was at the time you treated him in 1903.

A. I firmly believe that it positively will not if properly treated.

Q. You may state whether or not you had discharged this patient as cured?

A. I certainly believed he was cured. I saw him continuously; he was a neighbor of mine.”

He also testified in cross-examination as follows:

“Q. Do you now ever recall having told Mr. Kellett that you believed he had syphilis? A. No, I don’t remember that.

Q. As a matter of fact, your recollection is that yon did not tell him—is that correct?

A. I don’t remember ever telling him.”

The real and doubtful question in this case is whether in consideration of this testimony by the defendant’s own witness, who was the medical attendant of the deceased, by whom alone the defendant proved that he had had syphilis, the defendant should have been allowed to introduce further testimony of experts under the following offers:

“We offer to prove by medical experts that the symptoms as given by Dr. McCandless of this patient in his last illness, together with the history of his case in 1903 as treated and testified to by Dr. McCandless, shows that the cause of his death was the result of syphilis or that his death was caused by syphilis. ’ ’ “Plaintiff’s Counsel: To which the plaintiff objects.

The Court: Objection sustained.

Defendant’s Counsel: Exception.”

Again—“Defendant’s Counsel: I further offer to prove by physicians that paresis and syphilis, or either of them, are diseases that tend to shorten the life and that syphilis and paresis are both incurable diseases. Plaintiff’s Counsel: To which we object.

The Court: Objection sustained.

Defendant’s Counsel: Exception.”

The allusion to paresis in this offer is explained by this situation: The defendant had proved by an interne in St. Luke’s Hospital, named Clark, that in October, 1904, Kellett had been admitted to said hospital and had remained there for at least twenty days; that he had been admitted as suffering from varicocele, that is a varicose condition of the veins of the scrotum. This is all that was proven, but the defendant, when Clark was on the stand, had offered a paper, which Dr. Clark said was a card from a card index kept by the hospital as a record of the admission and dismissal of patients. The witness did not know who wrote it, but said it was one of the records kept by the hospital. It was not admitted nor otherwise identified, but it is inserted in the record, and on it appears, among other data which give the description of the person, the words “Admitting diagnosis,-—-Varicocele.” There is also on this card, or on some other document also offered in evidence under the same conditions, but not admitted (the record is obscure on this point), a “consent” to any operation which the operating surgeon at the hospital might think necessary, and after this, this memorandum:

“Date Discharged. Condition. . Diagnosis.

Nov. 5, 1904. Cured. General Paresis. Left

Varicocele.”

This allusion to “paresis” is, so far as we find, the only one in the record, except as it appears in the offer noted above and in this further offer by defendant’s counsel:

“We offer to prove that this Stephen A. D. Kellett was treated in St. Luke’s Hospital from October 8, 1904, until November 5,1904; that he was operated on for varicocele during said period, and that his case was diagnosed and he was treated for paresis, and that on October 12, 1904, he signed a written consent to an operation in the hospital.”

This offer was also refused by the court.

As further showing the situation at the time these offers were made, it may be noted that Dr. McCandless testified that Kellett died “from convulsions due to traumatic or mechanical injury to the brain,” and that “he had fallen from a chair and had an abrasion on his temple on the side of his head where it had evidently struck some hard object or pointed object.”

The counsel for defendant asked the Doctor, without objection, “Did you get any history of his case that led you to make that diagnosis?” and received in response, without objection, the following answer:

“Yes, I received information of a member of the family of his having had a severe beating while in the employ of the Telephone Company.”

When this beating occurred, if it did occur, does not appear.

The hospital “admission card” was plainly incompetent.

It is to be noted that the offers were exceedingly general. No specific witness was offered and no specific questions were asked, and the effect of the general testimony as to the curability of syphilis suggested would have been directly to contradict the witness as to this particular case, which the defendant had itself offered. We think that the court, under the record as it then existed, did not commit reversible error in refusing on the general offer, without individualization, to enter on a war of expert testimony on the scientific question of the curability or incurability of syphilis.

As to the “paresis,” there was no foundation laid for the offer. The course adopted, if there was ability to prove it, was not the correct one. A witness should have been produced who knew the alleged fact offered to be proven, and a question asked him.

A death certificate signed by Dr. McCandless and on file in the Bureau of Vital Statistics in the Department of Health of Chicago, and certified by the Registrar of the Bureau, was offered by the defendant, and refused by the Court. It was marked for identification and appears in the record. It' states the “Cause of death” as “Convulsions due to Brain Tumor,” and the “Duration of Disease” as “3 years.”

Whether or not this would have been competent to prove the cause of death and other matters contained in it, if Dr. McCandless had.not been placed on the stand himself by the defendant, it is needless to inquire. It was not competent as offered by defendant to impeach its own witness, or to supply, by wholly unsifted statement, what he could have been and indeed was examined and cross-examined on in open court.

If these various rulings of the court were right in rejecting offered evidence, then it follows that there was no error in instructing the jury to find for the plaintiff to the amount of the certificate and interest. By the evidence which was admitted it was plain that the defendant did not sustain the affirmative defense it had taken upon itself to make. The prima facie case made by the plaintiff was left untouched and the verdict and judgment necessarily followed.

The judgment of the Municipal Court is therefore affirmed.

’Affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    Frederick A. Rauch et al., Appellants, v. The Bankers National Bank of Chicago, Appellee.
    Gen. No. 13,966.
    1. Instructions—when presentation too late. An instruction presented in contravention of a rule of the Superior Court after the argument to the jury has begun, may properly be refused for that reason.
    2. Negotiable instruments—when bank liable to holder of check. Prior to the act of June 5, 1907, a bank was only liable to the holder of a check if it had sufficient bankable funds to pay the same on deposit subject to the order of the drawer.
    3. Negotiable instruments—effect of payment on forged indorsement. The payment of a-check by the drawee bank on a forged indorsement, does not constitute nor prove the acceptance of the check by the bank so as to make it thereafter as an acceptor of the check, liable to the true owner.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed October 8, 1908.
    Simon P. Gary, for appellants; John J. Kane, of counsel.
    H. H. C. Miller and W. S. Oppenheim, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal from a judgment by the Superior Court of nil capiat and for costs against the plaintiffs below (appellants here) in an action of assumpsit.

The suit was brought on six checks, in regard to each of which there were two special counts in the declaration.

The first of these counts in each case described the check as drawn by one Max Belitz on The Bankers National Bank (the defendant and appellee) and delivered by said Belitz to the plaintiffs, and then averred that on, to-wit: April 9, 1903, the plaintiffs presented the said check to the defendant, for payment thereof, and demanded payment thereof, and that at the time when said last mentioned check was so presented and payment demanded, the defendant had on general deposit in its hands sufficient moneys of the said Belitz subject to said check to pay it.

The second count in each case described the check in the same way, but then averred that after delivery of the same to the plaintiffs on to-wit, at some date (different from the others in each case), the defendant accepted the same. In each of the counts the conclusion is that by means of the matters alleged in it, the defendant became liable to pay the amount of the check described to the plaintiffs.

The following is a list of the checks thus declared on with the date of the alleged acceptance of each one (alleged under a videlicet):

Alleged

No. Date. Amount Acceptance.

154 Dec. 17, 1901. $213.56 December 19, 1901.

250 June 16, 1902. 71.00 June 20, 1902.

128 July 12, 1902. 128.00 July 14, 1902.

400 Aug. 11, 1902. 36.65 August 13, 1902.

405 Sept. 30, 1902. 70.00 October ' 2, 1902.

736 March 7, 1903. 80.00 March 10, 1903.

To these special counts the common money counts were added, including one for “money had and received for the use of the plaintiff.”

The defendant pleaded the general issue of non assumpsit. The cause was submitted to a jury, who found for the defendant, and the judgment followed after a new trial had been denied.

There were no instructions given to the jury. Those offered by the plaintiffs, except a peremptory one to find the issues for the plaintiffs, were presented in contravention of a rule of the Superior Court after the argument to the jury, and were declared by the Court to come too late and to be refused for that reason. The peremptory instruction in favor of the plaintiffs was asked in time at the conclusion of" the evidence, and denied.

The defendant also asked a peremptory instruction, which was refused.

The facts involved in the case, as claimed by the defendant, are that the plaintiffs, F. A. Bauch & Co., in 1901 and 1902, and the early part of 1903 (and for ten or twelve years before) had in their employ a salesman and collector named Bugenhagen. Bugenhagen was not authorized to indorse checks for the plaintiffs, but was expected to turn over to them any checks and all cash collected by him from their customers. He did not do so, however, but embezzled during the time of his employment a considerable sum of money— $1,500 seemed to be his own estimate and several thousands the plaintiffs’. Among the customers of F. A. Bauch & Co. was Max Belitz, who was a depositor with the defendant, The Bankers National Bank of Chicago. Bugenhagen collected from Belitz, for the plaintiffs, at various times between December, 1901, and March, 1903, and they gave him on or about the days before mentioned as their dates, the various checks sued on, running to the order of the plaintiffs. Bugenhagen, without authority, first indorsed them “F. A. Bauch & Co.,” then added the indorsement of his own name, and sold and transferred them to various parties, who again transferred them by deposit in various banks or otherwise, and they were all finally paid by The Bankers National Bank, on which they were drawn, to the various banks presenting them.

Out of the $599.21 which the checks aggregated, Bugenhagen turned over to the plaintiffs, on account of Belitz’s indebtedness to them, $344.95, for which Belitz was given credit by them. The rest he embezzled. The plaintiffs discovered in March, 1903, that Bugenhagen had been embezzling from them, and his manner of doing it. They proceeded to check up their accounts with their customers from whom Bugenhagen had been collecting, in order to ascertain the amount of money he had misappropriated, and these customers turned over to them various checks which had been given to Bugenhagen, and which had been returned to them by their respective banks. Among them were' the checks of Belitz which have been sued on, and another of $10, and with these checks, or some of them, and others, the plaintiffs confronted Bugenhagen in their private office on March 17, 1903. The embezzlement was confessed by Bugenhagen, and the amount of it on the Belitz account determined to be $254.26, for which Belitz was given an additional credit by Bauch & Co. That is, all other money which Belitz had paid in checks had evidently been reported and turned over as cash to Bauch & Co. and credited by them to Belitz on his account. It was only this amount of $254.26 of the payments by him for which he had not up to that time received credit on Bauch & Co. ’s books, and when it was thus discovered that he had actually paid that amount more than he had been given credit for, a credit entry was made in his account, under date of March 23, 1903—“W. B. $254.26”—in-dicating that although Belitz was entitled to an additional credit of that amount, Bugenhagen had embezzled it. It does not appear how the $254.26 was made up. There are, however, four of the seven checks which together make $254.65.

On the evening of March 18th there was another meeting between Bugenhagen and Bauch and his partner, Lamping, at Core’s hotel. At that time an agreement was presented to Bugenhagen, reciting his shortage and containing an undertaking on his part to pay F. A. Bauch & Co. $700 in two years, $700 in three years, $800 in four years, and to turn over a mortgage of $800 held by his wife, to make up the sum of $3,000, at which sum a settlement for the shortage had been arranged. Bugenhagen did not have the mortgage with him, and agreed to bring it the following day, but signed and delivered the agreement and notes evidencing the payments described in it.

Bugenhagen did not, however, keep his promise to bring the mortgage on the 19th, and Bauch & Co. sent for him. He went to see them on March 26th, told them he had taken the matter up with his wife and was going to bring the mortgage later. They said it was too late and destroyed the notes in his presence but retained the agreement.

The plaintiffs’ counsel question this statement of facts in some particulars. They say that it does not appear from the evidence that any of the money derived from the Belitz checks was turned over to F. A. Bauch & Co. But there was evidence which certainly justified the jury in drawing this inference, and if it were material we should have to hold that it inhered in their verdict that they did so find. The suggestion that Bugenhagen may have taken goods from appellants’ store and sold them to third parties and turned .in some of the cash on Belitz’s account may be true, but there is no evidence to support it.

Counsel also claim that the notes and agreement were presented and signed and the notes torn up at the same meeting of Bugenhagen and the plaintiffs, not at meetings several days apart. The plaintiff Bauch testified that it was at the same meeting that the notes were signed that they were destroyed, but the testimony of Bugenhagen was explicit that it was ou March 18th that the notes and agreement were signed, and on March 21st that the notes were destroyed. The “second interview,” to which the plaintiffs’ counsel refer in their reply brief, plainly and indeed expressly refers to the “second” interview in regard to the notes, taking place, as the witness had just stated, on March 21st. He said that he had a memorandum of the dates. The jury had the same right and, as we think, taking all the evidence together, as good reason to believe him as the witness Bauch, and we must assume that they did so if such belief was essential to their verdict.

But our decision of this case is based on other grounds, to which these matters are immaterial and which involve the following facts: On April 9, 1903, Henry W. Prouty, an attorney at law representing F. A. Bauch & Co., took the seven checks of Belitz which had been given him by Bauch & Co., to The Bankers National Bank and interviewed Mr. Judson, the assistant cashier, in regard to them. Mr. Prouty testified that he “stated to Mr. Judson the claim of Bauch & Co. with respect to the forgery of their indorsement on them, and I inquired of him what evidence he desired presented to the bank in order that it should pay the checks, and he asked me to have an affidavit made by my clients and attached to these checks, stating that the indorsement of their firm name on the checks was a forgery and placed there without their authority, and just briefly identifying the cheeks and the indorsement, and attach them and then hand them” (the checks) “with the affidavits attached, to him. I asked bim if he wanted to have the checks indorsed by Bauch & Co., and he said not.”

Mr. Judson’s account of the conversation was slightly different. He testified that when Mr. Prouty showed bim the checks and claimed that the indorsement was not genuine, he told Mr. Prouty that they had paid them once and charged them to the account of the drawer; that he had not heard of any claim being made by the drawer and that he could not recognize any claim by the payee; that he then said that it was customary, where an indorsement was claimed to be forged, for the payee to set that forth in an affidavit and have that affidavit attached to the cheek. * * * “I said that before I could take that up with the banks to whom we had paid the money, I should have to have it in the proper and usual form. That usual form was an affidavit by the payee setting forth that the indorsement as it appeared on the checks was not genuine.”

“Q. What, if anything, was said by you to Mr. Prouty about waiving the signature of F. A. Bauch on these checks, if you paid them? A. Oh, we would not waive it, no.

Q. Did you say anything of that kind? A. No.

Q. Did you say to Mr. Prouty you would pay these checks without requiring the signature of F. A. Bauch & Oo. on them? A. Certainly not.”

The checks were left by Mr. Prouty with Mr. Judson, who gave to Mr. Prouty a receipt for them, which the record shows was offered in evidence and marked Plaintiff’s Exhibit 7, but which for some unexplained reason was omitted from the transcript.

April 29th the check for $10 was paid by the defendant to Mr. Prouty, the amount of that instrument having been collected from the bank from which the defendant had received it, but the others were returned to Mr. Prouty with a refusal on the part of the defendant to pay them.

It is to be noted that the essential difference between the two accounts of what was said when Mr. Prouty presented the checks to Mr. Judson, is the direct contradiction of Mr. Prouty by Mr. Judson concerning the waiver of F. A. Bauch & Co.’s indorsement on them. If it required the belief of the jury, in order to justify their verdict, that Mr. Judson’s statement in this particular was the correct one, and Mr. Prouty’s mistake, we should be obliged to hold it was within their right and province to decide between the contradictory statements—a matter which it will be seen is important when the position of the defendant is considered. That position is that the plaintiffs did not by their evidence establish any liability on these checks on the part of the defendant bank to anybody, certainly not to the payee; and also that even if the bank would have been liable on them to P. A. Rauch & Co. on April 9th and later, had they been presented for payment with the genuine indorsement of P. A. Rauch & Co. upon them, no such liability accrued without that indorsement on the presentation of them by an attorney at law of Rauch & Co. without written authority. Further, it is insisted by the defendant that under the circumstances which the jury were at liberty to find existed, of a settlement between Rauch & Co. and Bugenhagen concerning the Relitz account, which after three days was repudiated by Rauch &. Co. by the destruction of the notes given in pursuance thereof, ratification of the indorsements on the checks by Bugenhagen of F. A. Rauch & Co.’s name and their collection by him might be properly presumed.

We do not think it' necessary to discuss this last position. As to the question of Rauch & Co. ’s genuine indorsement on the checks being essential before any legal obligation accrued which made the present suit, begun on April 27, 1903, sustainable by them, it must be said that it seems to us at least doubtful whether such indorsement was not necessary.

Had the checks been presented by Mr. Rauch or by Mr. Lamping, his partner, or if Mr. Prouty had shown written authority or otherwise affirmatively proven authority to collect the checks for them, the question would have been different. His being, an attorney at law did not affect his right to demand payment. How did his representation that he was authorized by Rauch & Co. to demand and receive payment <?f the checks differ in essence, so far as the bank was concerned, from Bugenhagen’s representation that he was authorized to negotiate them? In the one case the representation was express and was true; in the other it was implied and was false. But how was the bank' legally to know this?

The question is not whether had the checks been paid to Mr. Pronty, the payment would have been valid—which is the proposition discussed in Shaffner v. Edgerton, 13 Ill. App. 132; but whether a legal liability to pay them to him was imposed on the bank by his presentation of them on April 9, 1903.

But even if we consider that the genuine indorsement of Bauch & Co. was waived by the neglect to ask for it, or that the bank was bound to ascertain the truth or falsity of Mr. Pronty’s representation that he was Bauch & Co.’s authorized agent before refusing to pay the checks for lack of their indorsement, we should be obliged to hold that no case was made out against the defendant in favor of the plaintiffs by this record. In our opinion a peremptory instruction in favor of the defendant would have been justified, and the verdict of the jury was justified by the failure of the plaintiffs to prove an absolutely essential part of their alleged case.

This action is by the payee of these checks, which are in the purview of the law, inland bills of exchange against the drawee thereof.

By the law of Hlinois as it exists today (since the passage of the Negotiable Instruments Act of June 5, 1907), a bank is not liable in any case to the holder of a check drawn on it “unless and until it accepts or certifies” the same. This conforms to the law as it before existed in most jurisdictions but in Illinois before the passage of the act in question, and consequently when the transaction involved in this suit took place and when this suit was brought, a different doctrine prevailed.

As laid down in a long series of cases, beginning with Munn et al. v. Burch et al., 25 Ill. 35, a banker, when a check was presented to him and payment demanded, became liable to the legal holder of it, provided he had sufficient bankable funds to pay it on deposit belonging to the drawer and held out to be subject to his order by check. The reason for this rule is apparent and is given very clearly in the opinion of the court in Fourth National Bank v. City National Bank, 68 Ill. 398. It is because, by the nature of his business, the banker has promised to accept the inland bill of exchange in the form of a check before it is drawn. Such a promise to accept a bill of exchange, even though not in writing, was good in Illinois before the passage of the Negotiable Instrument Act, and tantamount to an acceptance after the bill was drawn so far as the liability of the drawee was concerned. That promise was held to be implied by the relations between the banker and the depositor. Says the Supreme Court in Fourth National Bank v. City National Bank, supra: “The universal custom informs us what the contract of all the parties to such transaction is.

“It informs us that the banker when he receives the deposit agrees with the depositor to- pay it out on the presentation of his checks in such sums as those checks may specify, and to the person presenting them and with the whole world the banker agrees that whoever shall become the owner of such check shall upon presentation thereof become the owner and entitled to receive the amount specified in the cheek, provided the drawer shall at the time have that amount on deposit.”

It is manifest that under this theory, unless there has been a special acceptance of a check, the allegation and proof that the drawer of it had at the time of the presentation of it to the drawee bank sufficierit funds on deposit subject to it, are necessary to justify any judgment on it against the drawee in favor of the holder.

This was recognized by the plaintiffs herein, for six of the special counts of their declaration—one on each check—contain the allegation “that at the time when said check was so presented to the defendant for payment thereof, and payment thereof was demanded ■from the defendant by the plaintiffs as aforesaid, the defendant had on general deposit in its hands sufficient moneys of the said Max Relitz, subject to said check, with which to pay the said check.”

But the • plaintiffs failed to make proof of this al- • leged fact. The payment of the check on forged or unauthorized indorsements was proven, and it may be assumed that the plaintiffs are right in their claim that these payments were of no effect whatever on the deposit of -Relitz with the Bankers National Bank. But that does not prove that when the checks were presented for payment on April 9, 1903, by Mr. Prouty (which, as the appellants claim, was the first time they were presented by any one having authority to do it), Relitz had sufficient funds on deposit to pay them. Although the case was re-opened after the plaintiffs first rested, this proof was not offered, nor any proof even that when the checks were paid on the forged indorsements there was such sufficient money on deposit.

The nearest approach to it was the following colloquy between the court and the witness Relitz:

“The Court: At the time you gave these checks you had funds in the bank to meet these checks?

The Witness: Yes, sir.

Q. And from that account that was given you by the bank, you found these amounts deducted out of the amount of your deposit? A. From my deposits, yes, sir.”

This does not meet the issue. Relitz may have had sufficient money when the checks were given, and yet have largely overdrawn his account before they were presented even with the forged indorsements, and certainly before the date (April 9, 1903), more than fifteen months after the date of the first and largest one, when Mr. Prouty made the authorized presentation of them. It is within the common knowledge of all that banks frequently allow overdrafts, but that a check, because of such indulgence, would probably be paid if presented, makes on it no liability to the payee by the bank. That depends, as we have shown, entirely on the presence of funds when the check is presented.

The plaintiffs insist, however, that if the allegations of the 1st, 3rd, 5th, 9th and 11th counts as to such presence of funds were not proven (which indeed seems impliedly to be conceded), their case was made out under the 2nd, 4th, 6th, 8th, 10th and 12th counts, which declare on an acceptance of the respective checks, and under the indebitatus assumpsit count for money had and received. No action, however, on these checks against the bank accrued to the payee by the mere drawing of them. The bank could only become liable to the payee by an acceptance either implied under the former Illinois rule before stated, which required the presence of bankable funds when they were properly presented, or by an acceptance expressly made by certification or otherwise. The plaintiffs say that this acceptance was made by the very unauthorized payments of which they complain. This suggestion does not seem forceful to us. It is the contention which was made before the Supreme Court of the United States in First National Bank v. Whitman, 94 U. S. 343, and repudiated by that court. The language of the opinion in that case is so apt in the present case that we quote it:

“It is further contended that such an acceptance of a check as creates a privity between the payee and the bank is established by the payment of the amount of this check in the manner described. This argument is based upon the erroneous assumption that the bank has paid this check. If this were true, it would have discharged all of its duty, and there would be an end to the claim against it. The bank supposed that it had paid the check, but this was an error. The money it paid was upon a pretended and not a real indorsement of the name of the payee. * * * We cannot recognize the argument that payment of the amount of the check or sight draft under such circumstances amounts to an acceptance creating a privity of contract with the real owner.

“It is difficult to construe a payment as an acceptance under any circumstances. * * * A banker or individual may be ready to make actual payment of a check or draft when presented, while unwilling to make a promise to pay at a future time. Many, on the other hand, are more ready to promise to pay than to meet the promise when required. The difference between the transactions is essential and inherent.”

We do not see that the force of this reasoning as applied to the case at bar is at all weakened by the fact which the plaintiffs point out, that the doctrine of the Federal Courts differed from that of the Illinois Courts as to the rights of a holder of a check presented and refused" when the bank had funds to meet it.

Our conclusion, as we have before indicated, is that the verdict of the jury was justified, and that a peremptory instruction for the defendant would not have been erroneous.

The judgment of the Superior Court is affirmed.

Affirmed.

Mr. Justice Adams : The only doubt which I have in the matter is whether the bank, having paid the checks wrongfully, should not be presumed, as between it and the appellants, to have had the money when the checks were presented by appellants’ agent. "


text:
    Florence Zippe, Appellee, v. Otto R. Zippe, Appellant.
    Gen. No. 13,967.
    1. Decebes—when presumed to be supported by evidence heard. In the absence of a certificate of evidence, it appearing that such a certificate of evidence had been filed, the presumption will be indulged on review that the findings of fact contained in the decree were supported by the evidence contained in such certificate.
    2. Divobce—upon whom burden rests to show inability to pay alimony. If a defendant has failed to comply with a decree providing for the payment of alimony, the burden is upon him to establish his inability to have complied therewith.
    Divorce. Appeal from the Superior Court of Cook County; the Hon. George A. Dupuy, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed October 8, 1908.
    Bowersock & Stilwell, for appellant.
    Ossian Cameron, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal from the judgment of the Superior Court of Cook county on July 15, 1907, finding that Otto B. Zippe was in arrears under an order previously entered in a divorce suit brought by his wife, Florence Zippe, against him (in which suit a decree of divorce had been entered in her favor on December 11, 1906), regarding the payment of alimony to the amount of one hundred and five dollars, and had refused to pay the same, and had shown no reason why he should not be attached for contempt, and ordering, adjudging and decreeing that said Otto B. Zippe was in contempt of court, and that he be forthwith attached for said contempt by a writ of attachment and' committed to jail (for not more than six months) until he complied with the order of the court or was otherwise discharged.

The assignments of error in this court are, apart from the general ones, that the court erred in entering the order of July 15, 1907, and the preceding rule to show cause, etc.; that the court erred in considering the affidavits filed on behalf of the appellee on which the order was entered; erred in finding that the appellant was in arrears, and that his alleged non-payment of alimony was not due to his inability to make payments.

As to the want of proof of the defendant’s ability to make the payments required by the decree of December 11, 1906, which is the point most insisted on by him, it appears that there may have been evidence preserved in the record showing that ability, which the appellant has not brought to this court. The certificate of the clerk of the Superior Court attached to the transcript certifies it to be a true, perfect and complete transcript of the record “except a certain certificate of evidence filed December 11, 1906.”

In the absence of that certificate of evidence we cannot tell whether the assignment of error is well made. The presumption is, that it is not, and that there was sufficient evidence to support the order.

It is the duty of the party relying on a decree to have incorporated in the findings, or to preserve in the record the proof to support it; but when evidence is so preserved it is incumbent on the appellant to bring it up to the court of review if he would urge that the decree is not supported by it. Franklin Union v. People, 220 Ill. 384.

We think there was enough evidence of the arrears to justify the chancellor in making the attachment. The defendant denied them, it is true, but in very general language, while the affidavit of the complainant was explicit and should and probably would have been met by specific statements of the amounts and dates of payment, if it could have been successfully and effectively contradicted.

If the defendant did not comply with the decree because he could not, on account of matters subsequent to its entry, it was for Mm to show it. Deen v. Bloomer, 191 Ill. 416.

The award of damages asked for we shall not allow, but the order of the Superior Court is affirmed.

Affirmed.


text:
    Lutellus Smith, Appellee, v. Edward J. Kelley, Appellant.
    Gen. No. 13,970.

      Tbial—when refusal to permit re-opening of case not ground for reversal. After the evidence upon both sides has been closed and the court has indicated his intention of directing a verdict, it is not an abuse of discretion to refuse to re-open the case to permit the introduction of additional testimony, where the offer of proof is indefinite and its probative value unshown.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed October 8, 1908.
    Henry J. Gibbs, for appellant.
    Charles Daniels and Sumner C. Palmer, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court for $41.82 rendered against the appellant, who was defendant below, in favor of appellee, who was plaintiff below. The action was on a promissory note as follows:

“$28.10. Chicago, Illinois, Dec. 30, 1897.

On or before January 15, 1898, after date, for value received, I promise to pay to the order of myself the sum of Twenty-eight and 10/100 Dollars at 100 Washington Street, Chicago, Boom 909, with interest at the rate of-per cent per annum after-until paid.

Edward J. Kelley/'’

The note was also indorsed in blank by Edward J. Kelley.

The suit was originally brought before a justice of the peace June 15,1906. Judgment was there obtained for $42 and costs on July 20, 1906. On an appeal to the Circuit Court and a trial de novo a jury, on April 16, 1907, found a verdict for the plaintiff for $41.82. A new trial was granted by the trial court on May 18, 1907, and the cause was again submitted to a jury on June 10, 1907. The jury on this trial was instructed by the court to find the issues for the plaintiff and assess his damages at $41.80. A verdict was rendered accordingly, and after a motion for a new trial and one in arrest had been overruled by the court, this judgment appealed from was entered.

The assignments of error in this court cover the rulings of the court below in instructing the jury to find for the plaintiff, in overruling the defendant’s motion for a new trial and in entering judgment for the plaintiff, and in refusing to admit oral testimony as to the contents of a certain life insurance policy hereinafter referred to.

We should have been as well satisfied in this case had the issues been submitted to a jury. The rule is— as stated by counsel for appellant—that in cases of any doubt it is the better practice. The trial judge, if the verdict in such -case is against the manifest weight of the evidence, can set it aside and grant a new trial.

But we are not of the opinion that the court so erred in peremptorily instructing the jury in this case, that we should reverse the judgment. This case, involving less than fifty dollars, has now been three times tried, with the same result, and in view of the evidence presented by the record we do not think there could ever be a verdict or judgment the other way which could be sustained.

The note in question was given, according to the defendant’s own testimony, as a premium payment for a policy of life insurance for $1,000, which he agreed to take from the New York Life Insurance Company. He received the policy, but says it did not have some conditions in it that he had stipulated for, and that he sent it back at some time after the maturity of the note, which only ran for sixteen days and was payable “on or before” and was intended evidently as practically a cash payment of the first premium. But he mailed the policy not to Mr. Smith, the owner of this note, who was the employer of the sub-agent, one Mr. Glenn, a friend of the defendant, nor to the company, but to Glenn, and he did not send it to Glenn’s residence, which he says he knew, but simply to Glenn “in the care of the New York Life Insurance Company, New York Life Building, Chicago.” There was no other evidence of what became of it. He did not know, he says, where Glenn’s office was. He says Glenn had previously declined to take it back and had said the company would not take it back. This is all very vague, and the transaction looks like a completed one, as to which the defendant became dissatisfied.

He contends, however, that the policy delivered was not what he bargained for and gave the note for. This is his language:

“He (Glenn) told me he would give me a policy for one thousand dollars with a guaranteed cash sur-, render value, and he told me the amount; it is so long ago now, I don’t recall what the amount was. I am inclined to believe it was five hundred and eighty-eight or six hundred and eighty-eight dollars, and I told him if he could give me á policy like that I would take it, and he asked me to sign this note in payment for such a policy, and I signed the note and he never delivered such a policy. He did leave a policy in my office, but that policy did not contain a guaranteed cash surrender value, so I returned it. ’ ’

It will be seen that the defendant here undertook to state the difference between the policy contracted for and the one received; although he complains that- he afterward was not allowed to prove it.

The difference, however, which he alleges is an impossible-one, unless some other factor is introduced into the description of the policy he bargained for. Taking his words in their natural meaning they "import that he was promised on the payment of $28.10 a policy for $1,000, which should immediately have a cash surrender value of $588 or $688. Such a proposition of course is too unreasonable to be considered. It is possible to suppose that a policy with such a guaranteed surrender value at the end of a long number of years might be promised, but it is evident that the witness when testifying could have had no very definite idea of wherein this apparently fully executed transaction needed reformation to make it conform to his expectations.

The remarks of the court about not hearing all the testimony and his consequent request to the reporter to read it to him, strikes us as showing conscientious attention to it rather than neglect of it. After it had all been read, including of course the testimony of the defendant which we have quoted concerning the policy delivered to him, the court declared his intention of instructing the jury for the plaintiff. Then counsel for defendant said:

“I want to make an offer to show what the policy was they delivered and what they agreed to deliver.” To which the court replied: “I don’t think I will allow that at this time, it is too late.”

The court might, in his discretion, have re-opened the case—told counsel to call his proposed witness, whoever he might be, and have sent the case to the jury—but we cannot hold that it was reversible error under the circumstances for him not to have done so. The offer was in no sense a definite one. It had no specification of what it was hoped to prove nor by whom, nor how the proof would add to or amend what the defendant had already sworn to.

The judgment of the Circuit Court is affirmed.

Affirmed,


text:
    The Nonotuck Silk Company, Defendant in Error, v. Nicholas J. Pritzker, Plaintiff in Error.
    Gen. No. 13,974.
    ■ 1. Statute of Limitations—what does not toll running of. The running of the Statute of Limitations against an open account is not tolled by the mere filing of a petition in bankruptcy.
    2. Statute of Limitations—what not new promise. The statement of a debt due to a creditor made by the debtor in a petition filed for a discharge in bankruptcy, is not such a promise as will start afresh the running of the Statute of Limitations in favor of such creditor.
    3. Bankruptcy Act—rights of creditor to institute action. The filing of a petition in bankruptcy does not prevent a creditor of the bankrupt from instituting action upon his claim.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Judson P. Going, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and judgment here.
    Opinion filed October 8, 1908.
    Aaron Heims, for plaintiff in error.
    The incorporation of a debt in a schedule filed with the petition in bankruptcy, is not such an acknowledgment as will prevent the running of the Statute of Limitations against it. 3 Elliott Ev., sec. 2466; 19 Am. & Eng. Encyc. Law (2nd ed.), 302-3; 25 Cyc. 1344-5; In re Hardin, 1 Hask. 163; S. C. 11 Fed. Cas. No. 6048, p. 488; George Ins. Co. v. Ellicott, Taney 130; S. C. 10, Fed. Cas., No. 5354; Christy v. Flemington, 10 Pa. St. 129; Hidden v. Cozzens, 2 R. I. 401; Roscoe v. Hale, 7 Gray 274; Stoddard v. Doane, 7 Gray 387; Richardson v. Thomas, 13 Gray 381.

      The pendency of proceedings in bankruptcy does not operate to prevent the institution of suit by a creditor for the recovery of a judgment, and does not suspend the operation of the Statute of Limitations. Doe v. Erwin, 134 Mass. 90; Milne’s Appeal, 99 Pa. St. 483; Davidson v. Fisher, 41 Minn. 363; Cleveland v. Johnson, 26 N. Y. Supp. 734; In re McBryde, 99 Fed. Rep. 686; Lauderdale v. Mahon, 41 S. C. 97; Thompson v. Massie, 41 S. C. 97; Rosenthal v. Nove, 175 Mass. 559; In re Eastern Commission & Importing Co., 129 Fed. Rep. 847.
    The Statute of Limitations is a statute of repose and not of presumption; in order to take a debt out of the operation of the statute, there must not only be an admission of a present subsisting debt, but also an express promise to pay or circumstances from which an implied promise may fairly be presumed. Kallenbach v. Dickinson, 100 Ill. 427, at pp. 433-435; Boone v. Ahern, 98 Ill. App. 610, at p. 613; Hahn v. Gates, 102 id. 385; In re Hardin, supra; Bell v. Morrison, 1 Pet. 351; Moore v. Bank of Columbia, 6 Pet. 86.
    Whitman & Horner, for defendant in error.
    A petition and schedule in bankruptcy starts the running of the Statute of Limitations anew, as to each debt thereon enumerated. Bowie v. Henderson, 6 Wheat. 514; Bryar v. Willcocks, 3 Cow. 159; Stuart v. Foster, 18 Abb. Pr. 305; 28 How. Pr. 273; In re Eldridge, 2 Hughes 256; 8 Fed. Cas. 414; Sartor v. Beaty, 25 S. C. 293; Lauderdale v. Mahon, 41 S. C. 97; In re Gibson, 69 S. W. Rep. 974.
    A petition and schedule in bankruptcy is a sufficient admission of a debt thereon acknowledged to be due and unpaid, as will under the law of Illinois raise an implied promise to pay such amounts, and bar the statute. Sartor v. Beaty, 25 S. C. 293; Lauderdale v. Mahon, 41 S. C. 97; Bowie v. Henderson, 6 Wheat. 514; Coulson v. Hartz, 47 Ill. App. 20.

      An unconditional admission of the justice of the debt is sufficient to remove the bar of the statute. Parsons v. Northern Illinois Coal & Iron Co., 38 Ill. 430-434; Freeman, v. Walker, 67 Ill. App. 309-314; Tridell v. Munhall, 124 Fed. 802-804.
    The filing of the petition, in bankruptcy suspends the running of the Statute of Limitations during the pendency of the bankruptcy proceedings. Hall v. Greenbaum, 33 Fed. 22; Luddington v. Thompson, 153 N. Y. 499; Brooks v. Bates, 7 Colo. 576; Greenwald v. Appell, 17 Fed. 140; In re McKinney, 15 Fed. 912; Bank v. Bossieux, 3 Fed. 817; In re Leiman’s Estate, 32 Md. 225; Hignutt v. Gary, 62 Md. 190; Van Sachs v. Kretz, 72 N. Y. 548; In re Maybin, 16 Fed. Cas. 1221.
    Sec. 11, a, b, of Bankruptcy Act of 1898, applies only to cases pending at the commencement of bankruptcy proceedings. In re Claiborne, 109 Fed. 74.
    All creditors are considered parties to the bankruptcy proceedings. Brandenberg on Bankruptcy (2nd ed.) 174.
   Mr. Justice Brown

delivered the opinion of the court.

This writ of error is to reverse a judgment' of the Municipal Court of Chicago in a suit of the fourth class, tried therefore without written pleadings, except a bill of particulars. That bill alleges, that the plaintiff’s claim was for goods and merchandise sold and delivered from May 7, 1900, to June 30, 1900.

The case was tried by the court without a jury, and resulted in the judgment for the defendant in error, the plaintiff below, against the plaintiff in error, the defendant below, for $841.89, which it is here sought, to reverse. The suit was begun on July 3, 1907, and the defense was that the claim was barred by the Statute of Limitations, which provides that such an action must be commenced within five years from the time it accrues.

' The evidence, varying slightly from the bill of particulars, showed that the defendant bought goods from the plaintiff in 1901 and before, and owed it for the same on an open account, the last item of which was of the date of March 2, 1901. This was more than five years before the commencement of the action. To take the case out of the operation of the statute the plaintiff introduced in evidence a petition in bankruptcy and bankruptcy schedules attached, all in the handwriting of the defendant and sworn to by him and filed in the District Court of the United States for the Northern District of Michigan, March 7, 1904.

The petition stated in the usual form that the petitioner owed debts which he was unable to pay in full; that he was willing to surrender all his property except such as was exempt by law, and desired to obtain the benefits of the Bankruptcy Act; also that the Schedule A annexed contained a full and true statement of all his debts. The petition prayed that he might be adjudged by the court to be a bankrupt.

Schedule A contained, among other listed debts which aggregated $4,172.22, the following:

Reference Name of Resi- When and Nature Ain’t,

to ledger creditor. dence. where con- etc.

or voucher. tracted.

26 The Nono- 268 Frank- Chicago, Open §841.89.

tuck Silk lin Street, 1897. account.

Co. Chicago.

The defendant stated in his testimony in the present case, however, “that he was not sure that the date of 1897 as the date the bills were contracted was correct, but that he put 1897 as approximate.”

On this petition the defendant was adjudged a bankrupt on March 10, 1904, after which no proceedings were taken in the case, which has never been dismissed. The petitioner never petitioned for his discharge, nor was any discharge in bankruptcy ever entered. The schedules showed only $324 of assets, all of which were claimed by the petitioner as exempt.

The question presented in the ease at bar, which is whether this sworn bankruptcy petition and schedule of the defendant had the effect so to avoid or suspend the operation of the Statute of Limitations that the debt was not barred on July 3, 1907, which was more than five years from the date of the last entry in the open account, and less than five years from the filing of the petition and schedules, is, although simple, not free from difficulty.

The-first contention of the plaintiff is that the filing of the petition in bankruptcy suspended the running of the Statute of Limitations. It claims that as the period of time from the date of the last item in the defendant’s open account with it up to the date of the commencement of the suit at bar, after deducting the period following the filing of his petition within which the defendant might have secured his discharge, is less than the required period for the running of the Statute of Limitations, the suit for this reason is not barred.

We do not think this contention can be sustained. The plaintiff bases it on the language of the limitation statute of Illinois: “When the commencement of an action is stayed by injunction, order of a judge or court or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the actions. ’ ’

It is claimed that the proper construction of the National Bankruptcy Act makes the present case fall within this provision, and that there is in the National Bankruptcy Act “a statutory prohibition” of the maintenance of a suit during the pendency of the bankruptcy proceedings at least until an unreasonable delay has taken place in asking for and procuring a discharge. But there does not appear that there is any such prohibition against beginning or maintaining a suit in the Bankruptcy Act -of 1898. There was one in the Act of 1867, which applied only, however, to creditors proving their debts or claims in bankruptcy. Holland v. Martin, 123 Mass. 278; Doe v. Erwin, 134 Mass. 90. That Act provided that a creditor proving his debt “should not be allowed to maintain any suit at law or in equity therefor against the bankrupt.” The cases cited by the plaintiff which arose under that law are not applicable under the present act, for that has omitted any provision which can be properly construed to forbid the bringing of a suit after the bankruptcy proceedings are begun. It is provided by section 11, a, that a suit pending at the time the petition is filed shall be stayed until after an adjudication or dismissal, and may be further stayed until twelve months after the adjudication, or until a pending application for discharge is determined. But this refers only to suits pending when the petition is filed (In re Claiborne, 109 Fed. Rep. 74), and we cannot assent to the theory of the plaintiff, that by recognizing certain rights of the plaintiff in pending suits, the statute prohibits the bringing of other suits. Such an implication is altogether too wide. But in any event, even were the provision of the law of 1867 in force and the reasoning in the case of Hall v. Greenbaum, 33 Fed. Rep. 22, and that in the other cases cited by the plaintiff therefore applicable, we cannot see how it would affect the present case, for there is no evidence in this case that the plaintiff ever proved its debt in the bankruptcy proceedings.

It is conceded, however, that under the provisions of sec. 2, clause 15, of the Act of 1898, the District Court of the United States can stay the prosecution of suits begun after the petition is filed, and as we understand the plaintiff’s argument, it insists that this power to stay the suit is equivalent to an “injunction or order of court” staying it. This plainly is not sound, nor would the staying of the prosecution of a suit be equivalent to “staying the commencement of a suit.” Bringing the suit within the period of limitation would have suspended the operation of the statute; that it might have been stayed after it was commenced does not excuse the plaintiff from so instituting it, and it should have followed the course which the court commended in In re McBryde, 99 Fed. Rep. 686, that is, been “vigilant and unwilling to trust a theory when there was a way certain.” The court in that case expresses a doubt whether the “theory” may not have been sound, but we cannot hold it so in this case.

We think it entirely within the discretion of the bankruptcy court to stay or refuse to stay the prosecution of an action against a bankrupt which was commenced after the filing of the petition (In re Knight, 125 F. R. 35; In re Remington Automobile & Motor Co., 119 F. R. 441; In re Porter, 109 F. R. 111), and that in the absence of such a stay by the Federal Court or the State Court, the action may proceed, and that in no event can the commencement of such an action, which will in itself save the bar of the statute, be prevented. Therefore this first contention of the plaintiff we must reject.

But greater stress is laid by him on a different proposition, namely, that the petition and schedule in bankruptcy was such an unconditional admission of the debt as to raise anew an implied promise to pay the debt, from the date of which implied new promise only, the period of limitation begins to run. .Viewed in reason this would seem logically to depend in Illinois upon whether the running of the Statute of Limitations is stopped and a new departure is begun simply by the admission of a debt before it is barred, when that admission is not made directly to the creditor, and when it is made under circumstances that apparently negative the purpose of paying the debt in full, but show rather the purpose of escaping from it altogether.

The admission was certainly unconditional, but does the rule in Illinois require nothing but an unconditional admission to raise the implied promise necessary to break the running of the statute? Proof of an express promise is not necessary, but a promise must be implied, and we do not think that Judge Barker’s dissenting opinion in Coulson v. Hartz, 47 Ill. App. 20 (the case relied on so strongly by the plaintiff), means to state the law differently from that of the opinion of the court when he says, “I do not understand that a mere acknowledgment of the correctness of an account unaccompanied by a promise to pay is sufficient to take it out of the operation of the statute,” for the opinion of the court, voiced by Mr. Justice Cartwright, says “that it seems to be the rule that an express promise to pay is not necessary, but that an implied promise is a sufficient neio promise to remove the bar of the statute"What the learned members of the Appellate Court for the Fourth District differed about was whether a balance in a running account struck by the debtor himself, within the period of limitation, in his own private account books, showing a certain sum due to the creditor, and showing it in the separate account devoted to that creditor, raised such an implied promise.

It may be held, we think, that such “an unqualified admission that the debt is due and unpaid, accompanied by nothing said or done to rebut the presumption of a promise to pay it,” will imply such a promise without its following that the same implication can be made from an admission in a bankruptcy schedule where, as Judge Fox is reported (In re Hardin, 11 Federal Cases, No. 6048, p. 489) to have said, “Any intention to pay the liabilities is certainly the farthest thing possible to be inferred,” * * * “On the contrary” the debtor “thereby says that he cannot pay and does not intend to pay or to have them remain as outstanding demands against them; instead of paying, he means and intends to be forever discharged therefrom.”

That in Illinois the admission must be such that a promise may properly be implied from it, is the doctrine stated by the Supreme Court in Keener v. Crull, 19 Ill. 189, where the court says: “The new promise may arise out of such facts as identify the debt which is the subject of the promise with such certainty as will clearly determine its character, fix the amount due, and show a present unqualified willingness and intention to pay it.”

And in Carroll v. Forsyth, 69 Ill. 127, where it says: “The law, as recognized by this court, is that to remove the bar of the Statute of Limitations it is incumbent on the plaintiff to prove an express promise to pay the money, or a conditional promise with a performance of the condition, or an unqualified admission that the debt is due and unpaid, nothing being said or done at the time rebutting the presumption of a promise to pay; it must be of such a character as to clearly show a recognition of the debt and an intention to pay it.”

To the same purport, as we read them, are Waldron v. Alexander, 136 Ill. 550; Kallenbach v. Dickinson, 100 Ill. 427; and Parsons v. Northern Illinois Coal & Iron Co., 38 Ill. 430. This court has said the same thing in Boone v. Ahern, 98 Ill. App. 610, and Hahn v. Grates, 102 Ill. App. 385.

Any expression of an intention to pay the debt in the present case seems conspicuously absent from the petition and schedules filed, and we do not think that logically and in reason any new promise to pay can be inferred from them.

If we turn from reasoning by analogy to searching for authority on the precise question involved, we find none of controlling authority. Our own courts do not seem to have had it before them. But there are conflicting decisions in other jurisdictions. Supporting the plaintiff’s contention is a dictum, lent weight by a great name. In Bowie v. Henderson, 6 Wheaton, 514, decided in 1821, Chief Justice Marshall says of a debtor’s recording a debt, in taking the benefit of an insolvent act in the District of Columbia: “It would have been sufficient evidence, if five years had not elapsed after recording, to have sustained an issue on a replication of a new promise to the plea of the Statute of Limitations.” But he adds: “But more than five years having elapsed it could have no application to this case.”

This dictum was quoted with approval by the court in In re Eldridge, 2 Hughes 256, in which the opinion of the learned judge says: “The effect of going into bankruptcy is to promise to pay all creditors pro rata to the extent of the assets, and to devote all assets to that purpose; in consideration of a discharge from further payment;” and as a corollary to this theory: “It seems that including a demand in a schedule of an insolvent’s debt is evidence of a new promise, if within the period of limitation.”

This also was obiter dictum, however, because the only question at issue in the case was whether the Statute of Limitations would run against a claim during the pendency of proceedings in bankruptcy so that it could not be proved in the bankruptcy proceedings. This was a question under the Bankruptcy Act and governed by its language, and is a very different question—as. is pointed out in Richardson v. Shaw, 13 Gray 381—from the question whether the same Statute of Limitations “is a bar to the creditor suing the debtor in a common law action, upon the original cause of action.”

The doctrine contended for by the plaintiff is, however, strictly involved in the cases of Bryar v. Wilcox, 3 Cowan, 159-164; Stuart v. Foster, 28 How. Pr. 273; Sartor v. Beaty, 25 South Carolina, 293; Lauderdale v. Mahon, 41 South Carolina, 97.

But the authority which may be cited on the other side of the question is at least of equal weight, and seems to us stronger logically and on principle.

Chief Justice Taney in the Georgia Insurance and Trust Co. v. Ellicott, Taney 130, 10 Fed. Cases, No. 5354, decided the other way, saying: “It appears from the evidence that the claim 'of the plaintiff is barred by the Statute of Limitations unless the bar is removed by the subsequent admissions of the defendants. The admission relied on is contained in the papers, filed by them upon their application to the commissioners for the benefit of the Act, passed by the General Assembly of Maryland, for the relief of insolvent debtors. * * * There is no express promise in this case nor can the admission upon any just construction be held to imply that the defendants are willing or intend to pay the debt to its full extent;' on the contrary the very object of the petition and' the list of debts or other papers that accompany it, is to be discharged from this and other debts without paying the full amount; and if we were to construe this admission to imply a promise on their part to pay the whole claim and sufficient to authorize a verdict- for the entire debt, we should expound it in direct contradiction to its obvious . meaning. They make the admission in order to obtain a discharge without full payment, and to be released from so much of it as their property may be found insufficient to pay.”

Another great judge, Chief Justice Shaw of Massachusetts, in Richardson v. Thomas, 13 Gray, 381, before cited, says of the scheduling of a debt by a debtor in insolvency proceedings brought by his creditors: “The court are of opinion that the statute bar is not avoided by the facts- stated. * * * The defendants as insolvents, were bound by their duty and their oath to present the plaintiff’s debt in their schedule as a debt due, and the fact was then strictly true; it was a debt due, not barred by the Statute of Limitations. * * * On what ground is it that the acknowledgment of a debt 'in- the ordinary course of business or a payment takes the case out of the statute 1 Plainly because being done voluntarily by the debtor, each is a significant act on the part of the debtor admitting the debt to be due and his liability to pay it, from which the law implies a promise to do so. Can such an inference be drawn from an acknowledgment which the debtor is bound by a legal requisition under a heavy penalty to make, and as a step in the course of a series of legal proceedings, which when rightly conducted is designed to lead as one of its appropriate objects to the discharge of that very debt?”

This reasoning is not so exactly applicable to the case at bar as it would be had the bankruptcy proceedings in the case of the defendant been involuntary, but it is of force, nevertheless, and we do not find in the difference of the Massachusetts doctrine concerning the Statute of Limitations from that of Illinois, as suggested by the plaintiff, anything that detracts from the persuasive authority of this case or of the other Massachusetts cases, Stoddard v. Doane, 7 Gray, 387; Roscoe v. Hall, 7 Gray, 274; and Doe v. Erwin, 134 Mass. 90; cited by the defendant.

In Rhode Island another eminent judge, Chief Justice Greene, in deciding the exact question involved here, where, as here, the proceeding was voluntary— Hidden v. Cozzens, 2 R. I. 401—said: “A petitioner for the benefit of the insolvent law is required by that law to annex to his petition a true inventory of all his debts. This is not made with any view to payment of the debt, but on the contrary is annexed to and made a part of the petition in which the debtor under oath states he is unable to pay, and so far from being an acknowledgment of a subsisting debt, which the party is liable and willing to pay, the acknowledgment is made to protect him from process by the creditor to compel him to pay it. * * * We do not think the law will raise an implied promise to pay from such an acknowledgment. ’ ’

To the same purport is Christy v. Flemington, 10 Pa. St. 129.

On the whole we think the conclusion of the editors of The Cyclopedia of Law and Procedure “A statement of a debt in the schedule of an insolvent is not such an acknowledgment as will take the case out of the statute” (25 Cyc. 1344-5), and of those of the American & English Encyclopedia of Law: “It is held that the mere fact that the debtor includes the plaintiff’s claim in the schedule of his debts in making an assignment for the benefit of his creditors or in his application for discharge in bankruptcy, or that his administrator schedules it in filing an inventory of outstanding claims as required by law, does not constitute such an acknowledgment as will imply a new promise, and thus defeat the operation of the Statute of Limitations” (19 American & English Encyclopedia of Law, 2nd edition, 302-3), are justified.

This being our opinion, we feel obliged to reverse the judgment of the Municipal Court and to find the issues for the defendant and enter a judgment here of nil capiat and for costs in his favor.

Reversed and judgment here.


author: Mr. Justice Baker

text:
    Chicago Junction Railway Company, Appellee, v. Manhattan Brewing Company, Appellant.
    Gen. No. 14,122.
    This was an appeal by the defendant from a judgment rendered in assumpsit recovered by the plaintiff for hauling certain cars for the defendant. No question of law was decided by the court, the controversy being with respect to what tariff rates should be charged for the services in question. In conclusion the court says:
    “We think that the charges made by the plaintiff to the defendant based on the rates fixed by tariff 112 on incoming cars and on the rates fixed by tariff 129 on outgoing cars are proper charges, and that the amount of the recovery was due from the defendant to the plaintiff for the services in question.”
    Assumpsit. Appeal from the County Court of Cook county; the Hon. W. H. Hinebaugh, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed October 6, 1908.
    Mayer, Meyer & Austrian, for appellant.
    Winston, Payne, Strawn & Shaw, for appellee; John D. Black and Max H. Whitney, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.


author: Mr. Presiding Justice Smith

text:
    Eugene Gehm, Appellee, v. Chicago & Northwestern Railroad Company, Appellant.
    Gen. No. 14,133.
    This was an action in trover for the wrongful conversion of a car-load of flour. No questions of law were determined. The only comment of the court which might be of importance is the following: “The evidence in the record affords abundant basis, in onr opinion, for the inference that Gardner was authorized by appellant to issue bills of lading for shipments of property from Frankfort over appellant’s railroad. Appellant adopted and acted upon his acts, and this constitutes sufficient proof of his agency.”
    Trover. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed October 6, 1908.
    Samuel A. Lynde and Stuart G. Shepard, for appellant.
    Barnard J. Baumer, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.


text:
    Myra J. Eldridge, Appellee, v. Carolyn M. Leckie, Administratrix, Appellant.
    Gen. No. 14,039.
    This case is controlled by the decision in Eldridge v. Kay, 124 Ill. App. 136,
    Contested claim in court of probate. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed October 8, 1908..
    Ernest Saunders, for appellant.
    Lackner, Butz & Miller, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.


text:
    Henry D. Laughlin, Appellee, v. Angus L. C. Ledgerwood, Appellant.
    Gen. No. 14,075.
    This was an action of assumpsit to recover. Borrowed money. There were- no questions of law determined by the court in the opinion and the judgment was affirmed on the facts.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed October 20, 1908.
    John P. Ahrens and E. F. Abbott, for appellant.
    Eddy, Haley & Wetten, for appellee; Emil C. Wetten, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.


author: Mr. Justice

text:
    Christopher Richter, Appellee, v. Lincoln L. Whitson, Appellant.
    Gen. No. 14,134.
    This was an action on. the case to recover damages alleged to have been sustained through false and fraudulent representations as to title.

      Held, that if. one recklessly makes to another a false representation that a certain person had good title to particular lands when he knew nothing about such title, for the fraudulent purpose of inducing the party to whom such representations were made to rely thereon, etc., and that such representations were in fact relied upon etc., then an action might lie.
    Action on the case. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed October 20, 1908.
    Charles C. Arnold and Joseph P. Eames, for appellant.
    Lawrence P. Conover and Joseph Granick, for appellee.
   Mr. Justice

Baker delivered the opinion of the court.