text:
    Carlie Dimmick, Appellee, v. Illinois Automobile Fire Insurance Exchange, Appellant.
    1. Insurance, § 226

      —when concealment of other insurance no defense. In an action on an insurance policy covering loss by fire, theft or collision, where the insurer claimed that the insured concealed the existence of other insurance, and the evidence showed that theft insurance was applied for, the fact that the insurer’s agent filled in the application so as to request insurance for theft, fire, etc., would not bar recovery, even though the insured had insurance against loss by fire in another company.
    2. Insurance, § 226*—when recovery not tarred ty existence of other insurance. Where a person insured against loss by fire in one company applied for insurance against loss by theft in another company and received a policy with stipulations against the concealment of material facts “with intent to deceive,” the policy was not void when the evidence disclosed that the insured merely requested theft insurance and the agent of the insurer filled in the application to cover loss by fire also, there being nothing in the evidence to show that the applicant gave other than true answers at the time she procured her policy, and the insured not being advised that the application signed by her requested fire protection.
    Appeal from the City Qourt of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed March 25, 1920.
    John E. Hamlih and E. J. Verlie, for appellant.

      Frank B. Hanna, for appellee.

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

   Mr. Presiding Justice Boggs

delivered the opinion of the court.

This is an action brought in the city court of East St. Louis on a policy of insurance to recover for the loss of an automobile which was stolen and burned.

On June 30, 1917, appellee purchased a Ford automobile, of the type known as á “Sedan.” On July 3, 1917, she procured from the Aetna Insurance Company a policy of insurance on said automobile for loss by fire to the extent of $600. On July 9, 1917, she obtained from appellant a policy of insurance thereon for loss by fire, theft or collision, to the extent of $490, if the loss occurred prior to June 27, 1918.

The automobile was stolen on March 8, 1918, and on March 11 it was found on the Caseyville road, just outside the corporate limits of East St. Louis, in a badly damaged condition. According to the testimony offered by appellee it had been burned and was a complete loss. Appellee notified both the Aetna Insurance Company and appellant of her loss, and filed suit on both policies in the city court of East St. Louis. The suit against the Aetna Insurance Company was tried first and resulted in a directed verdict and judgment for the defendant. On appeal that judgment was affirmed by this court at the October term, 1918. [213 Ill. App. 467.]

Appellee filed an amended declaration in the case now under consideration setting forth the theft of the automobile and the failure of appellant to comply with the terms of its policy of insurance. In addition to its plea of the general issue, appellant filed two special pleas setting forth the provisions of its policy with reference to the concealment or misrepresentation of any material fact or circumstance concerning the subject-matter of the policy, and prohibiting other insurance without appellant’s consent. Said special pleas also averred that prior to the date of the policy in question, and at the time of the loss, that appellee carried other insurance in another company “covering the risks assumed” by appellant in its policy; that appellee had not obtained appellant’s consent to carry such other insurance, and had concealed the existence of such other insurance. Appellee filed replications averring that “at the time the plaintiff applied for and obtained from the defendant the policy sued on in. this case, the plaintiff had no insurance on her said automobile against loss of the same by theft, robbery or pilferage, and that, in order to be indemnified against loss of her said automobile by theft, robbery or pilferage, plaintiff applied for and obtained the policy of insurance sued on in this case. ’ ’ Appellant demurred to the replications, but its demurrer was overruled.

Appellant elected to stand by its demurrer, and the case proceeded to trial before a jury, on the plea of the general issue. The jury returned a verdict, finding the issues in favor of appellee and assessing her damages at $490. Appellant’s motions for a new trial and in arrest of judgment were overruled and judgment was entered on said verdict. To reverse the same this appeal is prosecuted.

Appellant contends for a reversal of this case on two grounds: First, that appellee’s failure to disclose the existence of the Aetna policy constituted a violation of the provision of appellant’s policy relating to the concealment of a material fact and rendered the policy void; second, that the policy issued by appellant was void for the reason that appellee had procured other fire insurance on her said automobile.

The provisions of the policy referred to by appellant are as follows: ‘ ‘ This policy shall be void if the assured has concealed or misrepresented in writing or otherwise, with intent to deceive, any material fact or circumstance concerning this insurance or subject thereof, or if the interest of the assured is other than as stated, or in ease of any fraud or false swearing by the assured touching any matter relating to this insurance, or the subject thereof, whether before or after a loss. It is hereby agreed by the insured that no other insurance covering against the risks assumed hereunder will be carried in any other company or association without the consent of the Exchange.”

In support of appellant’s contention that appellee had failed to disclose the existence of the Aetna policy thereby constituting a violation of the provision of appellant’s policy relating to the concealment of a material fact, it cites the following cases: Lycoming Fire Ins. Co. v. Rubin, 79 Ill. 402; Orient Ins. Co. v. Peiser, 91 Ill. App. 278; Fame Ins. Co. v. Thomas, 10 Ill. App. 545; and 19 Cyc. 679.

The facts in the record, however, do not in our judgment come within the principles of law laid down in these cases. Appellee testified without objection that when she took out the policy in appellant company, she “went to the Launtz building, Fifth and Missouri avenue, and asked them if they had insurance for theft, and she said, ‘Yes.’ She brought out an application and said: ‘You sign this application and in three or four days you mil have your policy, but you must pay the premium today.’ I signed the application, paid $10 and three or four days later got my policy.” This evidence supports the theory of appellee that she did not apply to appellant company for fire insurance on her automobile but applied for theft insurance. The fact, if it be a fact, that appellant’s agent may have filled in the application signed by appellee so as to request insurance for fire, theft, etc., still unless the attention of appellee was called thereto when she signed said application it would not of itself" bar appellee from recovering for damages sustained by reason of the theft of her automobile, even although prior to that, time she had taken fire insurance in another company.

In the Teutonia Life Ins. Co. v. Beck, 74 Ill. 165, the Supreme Court at page 165, in discussing' a question similar to this, says: “And there was testimony tending to prove that the application contained a statement, among others, in answer to a question, that his health had formerly always been good, and that the applicant had never had any serious sickness. The application seems to have been filled up, ready to be signed, by a solicitor of the company, and signed by the applicant. There is no evidence that he ever read it or understood its nature, or what would be the effect of any inaccuracy of statement in answer to these various questions; nor that he was then or afterward informed that he was required to warrant the truth of his statements in answer to these various questions, and if either of them proved to be untrue, that he would forfeit his policy; * * * When an application is filled out by an agent of the company, and the assured requested to sign it, most persons regard it as a mere form, and unless admonished of the importance of accurate answers to the questions, answers are hastily given without reflection or time to ascertain facts with precise exactness, which is frequently insisted upon after a loss occurs.”

In Iowa Life Ins. Co. v. Zehr, 91 Ill. App. 93, the court at page 96 says: “The application contained no interrogatory designed to elicit this information, and it is familiar doctrine that the assured is required to disclose only such facts as are responsive to the questions asked.”

So far as the evidence in the record is concerned, there is nothing to show that appellee gave any other than true answers to the questions asked her at the time she procured the policy from appellant company.

It may be further observed in this case that the provision in the policy with reference to concealment or misrepresentation is that it be made “with intent to deceive.” Appellee’s evidence heretofore quoted we think clearly discloses that it was not her intention to deceive appellant company with reference to any of the material facts in connection with said application. She stated in her testimony she applied for theft insurance and there is no evidence to contradict this statement, other than her written application.

Coming now to the second ground relied on by appellant for a reversal of this case, viz., that the policy sued on was rendered void ■ for the reason that appellee had procured other insurance ‘ ‘ covering against the risks assumed by appellant,” it will be observed that the policy sued on in this case according to its terms was intended to protect appellee against loss by fire, collision or theft, while the policy issued by the Aetna Company did not cover theft. Counsel for both sides concede in their briefs and arguments that the suit instituted by appellee against the Aetna Insurance Company was decided against her. The court below directed a verdict in favor of the insurance company and rendered judgment thereon, which judgment on appeal was sustained by this court. This court, in passing on that case used thé following language: “The Aetna policy and the one sued on in this case each contained a clause against other insurance, but the two clauses in the different policies are not the same. It will be observed on .examination of the two policies that the policy sued on contains a condition which, if violated, renders the policy null and void, whereas, the provision in the second, or Bloomington policy, is no more than a covenant against taking other insurance, and no provision is made in this second policy in terms making the same void should the covenant be violated. It will be observed with reference to the second, or Bloomington policy, that the provision with reference to taking other insurance is that the same shall not be taken on the risk assumed by said policy. As stated above, the Bloomington policy, in addition to covering loss by fire, also contains a clause insuring against loss by theft, robbery or pilfering, so that the two risks are not identical.”

As stated in the Aetna insurance case, the policy there sued on became null and void when there was other insurance in force covering the risks covered by the Aetna policy, whereas, the, provision in the policy here sued on is limited to a covenant against other insurance. The two policies are not the same. The policy in this case covers a risk not covered by the Aetna policy, namely, that of theft. We hold in view of the fact that appellee stated to the agent of appellant that she wanted a policy covering theft, and the agent having told her that he had such a policy giving her a blank to sign, and inasmuch as there is nothing in the record to show that appellee’s attention was called to the fact that the application signed by her requested fire protection as well as protection against theft, she should not be barred of a right of recovery.

We are of the opinion and so hold that the trial court did not err in overruling the motion for a new trial and in arrest of judgment.

Error was assigned on the ruling of the court on the demurrer to appellee’s replication, but as the policy of the Aetna Insurance Company was allowed to go to the jury without objection on the part of appellee, the ruling of the court on the demurrer becomes immaterial. An assignment of error was made on the ruling of the court on the instructions, but this was abandoned in the brief and argument.

Finding no reversible error in the record, the judgment of the trial court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Eagleton

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. John Mussatto, Plaintiff in Error.
    1. Injunction, § 385

      —review of order granting temporary injunction. The granting of a temporary injunction by either the court or by a judge in vacation is a matter of sound discretion, and such an. order can only be reviewed when an appeal is prosecuted as provided by the statute.
    2. Injunction, § 269*—what is effect of motion to dissolve. A motion to dissolve an injunction for want of equity, apparent on the face of the bill, has the same effect as a demurrer.
    3. Injunction, § 269*—when issue on merits presented, by motion* to dissolve. Where a defendant appears for the purpose of dissolving a temporary injunction, and states that his appearance is limited, for the purpose of the motion only, but the motion presents the question whether the bill taken as true presents a cause of action, an issue on the merits is presented, and the defense can only be sustained by an exercise of jurisdiction, wherefore the appearance is general.
    Error to the Circuit Court of Franklin county; the Hon. Charles H. Milleb, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed March 25, 1920.
    B. E. Smith, for plaintiff in error.
    Boy C. Martin and S. M. Ward, for defendant in error.

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

   Mr. Justice Eagleton

delivered the opinion of the court.

This is a writ of error sued out to review a decree of the circuit court of Franklin county. The question presented is as to jurisdiction of the person of John Mussatto, the plaintiff in error. It is claimed that the court did not have such jurisdiction of his person as authorized it to award a temporary injunction nor to decree a permanent injunction on the final hearing.

A bill was filed by the State’s Attorney of Franklin county on behalf of the People of the State of Illinois charging that the plaintiff in error was and had been engaged in the sale of intoxicating liquor in a certain room in a two-story building in the City of Christopher, in said county and State, owned by him, and that said building was located in anti-saloon territory, and charged that said place of business was a common nuisance and prayed a temporary injunction, and that on a final hearing said nuisance be abated and said plaintiff in error permanently enjoined from maintaining the same.

There were various other allegations in the bill setting forth conditions existing and various criminal prosecutions ■ brought against the plaintiff in error charging him with unlawful sales of intoxicating liquors, and pleas of guilty entered by him thereto while, he was engaged in said business and also setting forth the congested condition of the courts of Franklin county and the inability of the civil officers of said county to prevent the open violation of the lavf by the plaintiff in error in maintaining said nuisance and in selling intoxicating liquors in violation of law, because of the large demands made on the time of said officers in the performance of their duties.

To the bill was attached an affidavit setting forth that the defendant in error would be prejudiced in its rights unless said temporary injunction be issued at once and without notice to the plaintiff in error.

On the 11th day of February, 1918, a temporary injunction was granted pursuant to the prayer of said bill, without notice, under the authority of said affidavit.

The first question presented is as to the order of the court granting the temporary injunction.

Independent of a statute authorizing an appeal from an order granting a temporary injunction, the regularity of the issuance thereof could not be reviewed either on an appeal or a writ of error.

“The granting of a temporary injunction by either the court or by a judge in vacation is a matter of sound discretion, and cannot be reviewed, on appeal or error.” Marble v. Bonhotel, 35 Ill. 240.

While the statute now provides that an appeal may be prosecuted from an order granting a temporary injunction, the rule above quoted is not abrogated. The order can only be reviewed when an appeal is prosecuted as provided by the statute. On this question the Supreme Court held, in the case of Leslie E. Keeley Co. v. Hargreaves, 236 Ill. 316, as follows:

“The granting of a preliminary injunction cannot be assigned for error. * * * It is merely interlocutory, and is open to review only upon an appeal taken in the manner provided in the act to provide for appeals from interlocutory orders. * * * The injunction was made perpetual by the final decree, and in the review of that decree it is immaterial whether or not a preliminary injunction was issued, or, if it was, whether it was rightly or wrongly issued.”

For these reasons it will not be necessary to consider the question as to the regularity of the granting of the temporary injunction.

No summons or other process was served on the plaintiff in error, hence it will be necessary to consider the record to see if the court had jurisdiction of the plaintiff in error.

At the February term, 1918, the plaintiff in error filed a motion to dissolve the temporary injunction. This motion was filed in term time and was denied at the same term of court, and the plaintiff in error was ruled to answer the bill of complaint by June 5, 1918.

The motion filed by the plaintiff in error contains the following: ,

“Now conies the defendant, John Mussatto, by R. E. Smith, his attorney, and limits his appearance for the purpose of this motion only, and moves the court to dissolve the temporary injunction herein and assigns the following reasons therefor:

1..............................................

2.........................;....................

3. The bill does not state a cause of action.”

In the case of White v. Young Men’s Christian Ass’n, 233 Ill. 526, the defendant filed a motion to dissolve an injunction for want of equity on the face of the bill, and the Supreme Court held as follows:

“The motion to dissolve having been based on a want of equity apparent on the face of the bill, it had the same effect as a demurrer.”

In the case of Nicholes v. People, 165 Ill. 502, an attempt was made by a party to limit his appearance in court. The Supreme Court held, however, that even though he attempted to limit his appearance because of the matter urged, he was before the court for all purposes. In that case they held as follows:

“There are cases where the defendant may make a quasi appearance for the purpose of objecting to the manner in which he is brought before the court, and in fact to show that he is not legally there at all, but if he ever appears to the merits he subjects himself completely to the jurisdiction of the court and must abide the consequences.”

If he appears to the merits no statement that he does not will avail him, and if he makes a defense which can only be sustained by an exercise of jurisdiction, the appearance is general.

In this case one of the objections made was to the substance of the bill. An adjudication favorable to the plaintiff in error on that issue and the bill must go out of court. It presented the question to the court whether the bill taken as true presented a cause of action. It submitted an issue on the merits and had the effect of admitting that the - allegations of the bill were true, so far as the motion was concerned, and under that admission called on the court to adjudicate the rights of the parties. By this means the plaintiff in error was within the jurisdiction of the court for all purposes, and when he' failed to answer the bill in response to the order-of the court, the court did not err in entering a default against him and entering such decree as the facts and the allegations of the bill warranted under the prayer therein.

Finding no reversible error in the decree, it will be affirmed.

Affirmed.


text:
    Osro Shirk, Appellee, v. The County Board of Massac County, Appellant.
    1. Sheriffs and constables, § 19

      —when compensation for dieting prisoners may be changed. Under Hurd’s Ill. St. ch. 75, sec. 24 (J. & A. 1i 6739), as to jail expenses being paid from the county treasury, and chapter 53, sec. 19 (IT 5620), as to fees of sheriffs and requiring compensation for dieting prisoners to cover cost and to be fixed by the county board, the duty of dieting prisoners is placed on the sheriff by statute, and the increase or decrease of amounts to be allowed is not within the constitutional provision prohibiting an increase or decrease of an officer’s salary during his term of office.
    2. Appeal and ebbob, § 1275*—when presumed that food furnished by sheriff was proper and reasonable. In an action by a sheriff ’ against a county to recover the cost of dieting prisoners, where no question is raised at the trial as to the quantity or quality of food furnished, it will be presumed that such articles were proper, sufficient arid reasonable.
    3. Appeal and ebbob, § 450*—when objections to evidence cannot be first raised on appeal. In an action by a sheriff to recover for the cost of dieting prisoners, where evidence was introduced without objection as to the cost of various articles furnished, a question as to the admissibility of such evidence cannot be raised for the first time on appeal.

      4. Accord and satisfaction, § 3

      —when acceptance of sum less than due does not constitute. Demands of a sheriff for allowances to cover the cost of dieting prisoners are not for unliquidated damages, and the acceptance of a less sum than the amount actually due only satisfied a portion of each demand equal to the amount received.
    5. Appeal and ebbob, § 1641*—when instruction not reversible error. In an action by a sheriff to recover the cost of dieting prisoners, the giving of an instruction placing the burden of proof as to the actual cost of food furnished on the county board was not error when the instructions as a whole correctly presented the law.
    6. Accobd and satisfaction, f 11*—when instruction on properly modified. In an action by a sheriff to recover the cost of dieting prisoners, an instruction offered by the defendant county board as to an accord and satisfaction resulting by payment of claims presented was properly modified by adding the qualification that the sheriff accepted the amount paid in full satisfaction, and requiring such fact to be shown by the weight of the evidence.
    Appeal from the Circuit Court of Massac county; the Hon. William N. Butleb, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed March 25, 1920.
    Walter Roberts and Fred R. Young, for appellant.
    H. A. Evans, for appellee.

      See Illinois Notes Digest, Vols. 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. Justice Eagleton

delivered the opinion of the court.

In the fall of 1914, Osro Shirk, the appellee, was elected to the office of sheriff of Massac county, the appellant, for a term of 4 years and assumed the office and entered upon the discharge of his duties as such officer on the 8th day of December, 1914, and continued in such office until the expiration of said term in December, 1918.

Massac county is a first-class county, and under the law the sheriff is the keeper of the county jail and custodian of all persons confined therein, and he is charged with the duty, among other duties, of serving each prisoner confined in the jail with sufficient wholesome, well-cooked food. For this service the statute provides the sheriff in counties of the first and second class shall be compensated as follows:

“The fees of sheriffs in counties of the first and second class shall be as follows:

“For dieting each prisoner, such compensation to cover the actual cost as may be fixed by the county board, but such compensation shall not be considered a part of the fees of the office.” Hurd’s Ill. St. ch. 53, sec. 19 (J. & A. ¶ 5620).

This compensation is to be paid in the following manner:

“The cost and expense of keeping, maintaining and furnishing the jail of each county, and of keeping and maintaining the prisoners thereof, except as otherwise provided by law, shall be paid from the county treasury, the account therefor being first settled and allowed by the county board.” Hurd’s Ill. St. ch. 75, sec. 24 (J. & A. ¶ 6739).

In November, 1914, the County Board of Massac county adopted a resolution fixing the compensation of the sheriff for dieting prisoners at fifty cents per day.

The appellee filed nine reports covering his term of office showing the furnishing of food equal to the total number of days covered by each report for one man. The first six of these reports each contained a claim of fifty cents per day which were approved by the county board and the various amounts claimed were paid to the appellee. In each of the last two reports the appellee made a claim for seventy-five cents per day and these reports were approved and the amounts claimed paid to the appellee. In the seventh report the appellee made a claim for seventy-five cents per day and, after some discussion with the county board, the appellee-filed an amended report in-which he made a claim for sixty-five cents per day, which was approved by the county board and the claim allowed, and the amount thereof paid to the appellee.

On June 23, 1919, the appellee filed a claim for one dollar per day per capita for dieting prisoners during his term of office, being a total of 12,798.60 days, giving credit therein for the total amount received as above stated, and asking that a claim be allowed and paid to him for the balance. The county board refused to allow that claim and the appellee brought this suit. A declaration was filed by the appellee in which was set forth the number of meals furnished to prisoners during different intervals of time and the amounts received by the appellee thereon, and averring that the actual cost thereof was one dollar per day for each prisoner, and after allowing credit for the several amounts received by him, a cause of action had accrued against the appellant for the balance.

A demurrer was filed to this declaration by the appellee, which was overruled, and the appellant then filed a plea of nonassumpsit and a plea of accord and satisfaction, and after issues were joined the cause was tried by a jury and a verdict for $1,500 returned in favor of the appellee. After the verdict was returned the appellant entered a motion for a new trial, which was overruled, and judgment rendered against the appellant and this appeal prosecuted by it.

The appellant takes the position that the compensation of the sheriff for dieting prisoners having been fixed before the appellee went into office, it could not thereafter be changed under the constitutional inhibition against increasing or diminishing the salary of an officer during a term for which he is elected. This position cannot be sustained. This duty does not devolve on the sheriff under the constitution but is a duty placed on him by the statute. It is not a source of profit nor is it a part of his salary as such officer, neither is it to be paid him from the fees earned in his office as is his salary. He is required to furnish the food and can only be reimbursed the actual cost thereof, and payment is to be made from the county treasury. The statute fixes no time at which the compensation is to be fixed but does provide that before payment can be made the account therefor must be “settled and allowed by the county board.” While the cost of an article of. food may be higher at' one period of time than during another, if the sheriff only receives what he expended therefor he will not be benefited whether he paid the higher or lower price.

No question was at any time raised by the appellee as to the quantity or quality nor as to the articles of food furnished, neither are those questions flow raised. Under these conditions it will be presumed that the articles furnished were proper, sufficient and reasonable.

On the trial of the case evidence was introduced to show the increase in the cost of foodstuffs during the appellee’s term of office and the cost of the meals furnished by the appellee to prisoners. The evidence on this question tqnded to show that the actual cost per capita per day was from sixty cents to seventy-five cents in 1914 to as high as one dollar and twenty-five cents in 1917 and 1918. The evidence fairly tended to prove that the actual cost of the meals furnished by the appellee exceeded the amount received by Mm. In fact it is not denied by the appellant that the weight of the evidence on this question was on the side of the appellee. It is, however, argued that the appellee’s testimony gave nothing definite about the quantity or cost of the various articles furnished. The appellee in his testimony named various articles furnished'and stated the cost thereof. No objection was made to this testimony, and if it was objectionable it would be too late to raise the question for the first time-in this court.

The defense most strongly urged, and in fact the one of greatest merit, is on the question of accord and satisfaction. It is argued that the demands of the appellee for compensation for food were unliquidated and that, by making the several payments thereon and the acceptance thereof by the appellee, were in effect settlements and that the appellee is precluded from going behind said settlements.

It appears from the testimony of the appellee that when he made his first report to the county board he made the charge therein at fifty cents per day for the reason that was the price fixed by the county board. He also testified that he went before the county board and told them he was feeding the men at a loss and that one of the members admitted that it was worth more money and that the only reason given for not allowing more under the first six reports was that under the law they could not increase the allowance during his term of office. It is not denied by the appellant that the reason assigned was the only reason given. It does not appear in the record that the county board or any member thereof at any time made any investigation of the articles furnished by the appellee or of the cost thereof. It further appears that in the first six reports were reported meals for 11,789 days.

In support of its position the appellant cites the case of Canton Union Coal Co. v. Parlin & Orendorff Co., 215 Ill. 244, wherein it was held that where damages are unliquidated and a less sum than was actually due was accepted in settlement, it would be sufficient to constitute an accord and satisfaction. This is not the rule, however, when the damages are liquidated. In the case of Farmers’ & Mechanics’ Life Ass’n v. Caine, 224 Ill. 599, in reviewing the authorities on this question, the Supreme Court held as follows:

“An acceptance by the creditor from the debtor of a less sum than the amount due in full satisfaction of the debt is a discharge only of so much of the debt as is equal in amount to the sum received. * * * The payment of a less sum is not a satisfaction of a larger sum, even when so received, without a release by deed. * * * Nor is it essential to the right of action that the creditor should rescind the contract of settlement and return the money he has received under it before bringing suit. All that is required is that the debtor should have credit for the sum paid. * * * It is true, where there has been a compromise, in good faith, of unliquidated or disputed demands, where there is an honest difference between the parties as to the amount due, such an accord with satisfaction is binding.”

The demands by the appellee were not unliquidated. It was only a matter of computation to determine the total amount due with each report. In the case of Kelley, Maus & Co. v. Caffrey, 79 Ill. App. 278, the following definition of unliquidated damages is quoted with approval:

“They are such as rest in opinion only, and must be ascertained by a jury. * * * They are damages which cannot be ascertained by computation or calculation. ’ ’

In the case of East v. Crow, 70 Ill. 91, the Supreme Court held that items for work, labor performed, board, goods sold and delivered, money, etc., were not unliquidated damages.

Under these authorities it appears the demands of the appellee were not for unliquidated damages and that the acceptance of a less sum than the amount actually due only satisfied a portion of each demand equal to the amount received.

Complaint is made of each of the instructions given at the request of the appellee for the reason they would permit a recovery regardless of the order of the county board fixing the per diem. As that is the view adopted in this opinion, the instructions are not open to that objection.

The additional criticism is made to the appellee’s fifth given instruction that it placed the burden of proving the actual cost of the foods furnished on the appellant. The appellant’s first given instruction informed the jury that the burden was on the appellee to prove the actual cost of the food furnished, and the appellee’s fifth instruction told them that the burden of proving the payment of said sum was on the appellant. Under the rule that instructions should be considered as a series and if when so considered they correctly present the law, they are not open to criticism, the instruction under consideration is not open to the criticism made.

It is next objected that the seventh instruction given for the appellee is open to the additional objection that it is argumentative. The first part of that instruction might well have been omitted, but it is not of such a nature as would warrant a reversal of the case.

It is next urged that the court erred in modifying certain instructions offered by appellant. These instructions, as offered, told the jury, in substance, that' if the appellee filed a claim for an amount which was allowed and paid in satisfaction of the claim, an accord and satisfaction would result. They were modified by the qualification that the appellee accepted said amount in full satisfaction, and to one of these instructions was added that this must be shown by the weight of the evidence. Under the most favorable view of the position taken by the appellant these modifications were proper.

Lastly it is urged the court erred in refusing two instructions offered by the appellant. These instructions were squarely against the holdings of this opinion and no error was committed in refusing them.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

Affirmed.


text:
    John Bux, Appellee, v. L. E. Wangelin, Appellant.
    1. Justices of the peace, § 172

      —when judgment appealable. A judgment rendered by a justice against a plaintiff for costs is a final judgment and is appealable.
    2. Gaenishment, § 106*—when judgment cannot be entered against garnishee. A judgment. cannot be entered against a garnishee in an attachment proceeding until the plaintiff has recovered a judgment against the defendant therein. Hurd’s Ill. St. 1916-1917, ch. 79, sec. 91 (J. & A. f 6952).
    3. Garnishment, § 104*—right of garnishee to attach judgment against defendant. While a garnishee may not attack a judgment against a defendant for mere error, if the court has not jurisdiction of the defendant the garnishee may make objection for his own protection.
    4. Attachment, § 87*—when affidavit insufficient. An affidavit which fails to state the address of a defendant or that upon diligent inquiry the plaintiff was unable to ascertain the same, and which also fails to state whether the defendant was a corporation or partnership, or the names of partners, if a partnership, is defective and insufficient to warrant a writ of attachment, under Hurd’s Ill. St. 1916-1917, ch. 79, art. 8, secs. 2; 11 (J. & A. iff 6931, 6940).
    5. Attachment, § 219*—when return of mailing notice insufficient. A return of notice by a constable in an attachment proceeding, which states the mailing of a copy to the defendant at his last address, but fails to state to whom said copy mailed was addressed, is insufficient, as such fact must affirmatively appear, and the omission is not supplied by a finding of the justice that the proof of service was sufficient
    Appeal from the' Circuit Court of St. Clair county; the Hon. George A. Cbow, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed with finding of fact.
    Opinion filed March 25, 1920.
    Barthel, Farmer & Klingel, for appellant.
    Preston K. Johnson, for appellee.

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

   Mr. Justice Eagleton

delivered the opinion of the court.

On August 8, 1918, John Bux sued out a writ of attachment before the police magistrate at Belleville against Nissly and Son. The writ was directed to a constable to serve, made returnable August 14, 1918, and L. E. Wangelin named as garnishee.

It appears that Wangelin was a justice of the peace and had rendered a judgment in favor of Nissly and Son against Bux for $79.50, and that on the day this suit was begun Bux paid the amount of the judgment to Wangelin and that Wangelin had no other money in his hands belonging to Nissly and Son.

Service of the writ was had on Wangelin but not on Nissly and Son and on the return day the case was continued for 15 days and notice given the constable to post and mail to get constructive service on Nissly and Son.

On August 29, 1918, the venue was changed to a justice of the peace before whom the case was tried and judgment entered against Bux for the costs and he appealed the case to the circuit court where, on a trial, judgment was rendered against Nissly and Son for $92.75 and against Wangelin, as garnishee, for $79.50, from which judgment Wangelin prosecutes this appeal.

Three grounds are urged for the reversal of the judgment of the circuit court. The first is that no judgment was rendered by the justice of the peace from which an appeal could be prosecuted, the second that no valid judgment was rendered against Nissly and Son and the third that the money held by the garnishee is in the custody of the law and cannot be reached by garnishment.

As to the first proposition it appears that the justice on the hearing rendered judgment for costs against the appellee. It has been held that a judgment before a justice against the plaintiff for costs is a final judgment. Burke v. Dunning, 70 Ill. App. 215. This case comes within that rule.

The next question is as to the validity of the judgment in the circuit court against Nissly and Son.

A judgment' cannot be entered against a garnishee in an attachment proceeding until the plaintiff has recovered a judgment against the defendant therein. Hurd’s Ill. St. 1916-1917, chap. 79, sec. 91 (J. & A. ¶ 6952). It is also a rule that while a garnishee may not attack a judgment against the defendant for mere error, if the court has not jurisdiction of the defendant the garnishee may make objection for his own protection. Dennison v. Blumenthal, 37 Ill. App. 385, and Dennison v. Taylor, 142 Ill. 45.

The transcript of the justice does not show service on Nissly and Son and recites, “Nissly and Son not present and not represented,” and the only entry in the judgment of the circuit court as to service on Nissly and Son is, “and proof of service in attachment sufficient” and no default is entered.

The appellant objected, both in the justice’s court and in the circuit court, to any proceeding being had or judgment being rendered against him, as garnishee, for the reason service had not been had on Nissly and Son.

The method of procedure in attachment suits before a justice of the peace is prescribed in articles 8 and 9 of chapter 79, of Hurd’s Ill. St. 1916-1917 (J. & A. ffff 6931, 6932).

In section- 2 of article 8 (J. & A. ff 6931), it is provided that to entitle a creditor to a writ of attachment he shall file an affidavit stating, among other things: “The place of residence of the defendants, if known, and, if not known, that upon diligent inquiry the affiant has not been able to ascertain the same.”

Section 11 of the same article (J. & A. if 6940) provides that if on the return day the defendant is not served and no appearance is entered by him the case shall be continued 15 days and notice posted, and if the place of residence is stated in the affidavit the constable shall at the time of posting notices “mail one copy of the notice addressed to such defendant, at such place of residence.”

In the affidavit on which the writ was issued in this case the statement as to the place of residence of the defendant is:

“That the defendant resides at Lancaster, Pa.

“That this affiant had made diligent inquiry and cannot ascertain the place of residence of defendant; that the last known place of residence of defendant was * *

This did not comply with the statute in that it failed to state either the address of the defendant or that upon diligent inquiry the plaintiff was unable to ascertain the same. Likewise the affidavit was defective in failing to state that Nissly and Son was a corporation or a copartnership, as the fact may be, and if a copartnership the names and addresses of the members thereof.

In his return as to the notices furnished him, the constable, after stating the posting of copies thereof as provided by law, states “also mailed one to defendant last add” and failed to state to whom said copy mailed was addressed. This must affirmatively appear and a finding of the court “proof of service in attachment sufficient” will not supply the omission. Dennison v. Blumenthal, supra, and Dennison v. Taylor, supra.

From what has been said the court did not have jurisdiction of Nissly and Son and the judgment is void as against them, and it was error to render judgment against the appellant as garnishee.

There being no provision for procuring service on the defendant, except in the proceeding before the justice, the judgment of the circuit court will be reversed because of the errors stated and the cause will not be remanded. American Trust & Savings Bank v. Pack, Woods & Co., 70 Ill. App. 177.

Reversed with finding of fact.

Finding of fact. Service was not had on Nissly and Son, the defendant, and the judgment against said defendant was void.


text:
    O. R. Morgan, Administrator, Appellant, v. John L. Whiteside, Appellee.
    1. Executors and administrators, § 272

      —when order allowing claim is void. An order of the county court allowing a claim against an estate is void where the record fails to show that the administrator was present in court pursuant to notice to meet claims, or that the administrator was present in any manner provided by law, as the court never acquired jurisdiction of the administrator.
    2. Executors and administrators, § 198*—when proceeding to sell lands for balance of widow’s award barred. In a proceeding to sell lands belonging to a deceased where a demand for the balance of a widow’s award is claimed, and it- appears that nearly 23 years elapsed after the approval of an estimate on the value of the widow’s award and the death of the widow, and that 3 years elapsed after such death and the petition to sell lands by the administrator de bonis non, the petitioner is not entitled to relief since, although the 23 years’ delay might be excused because of the widow’s homestead estate, there was no effort to explain the additional delay of 3 years.
    3. Executors and administrators, § 180*—waiver or bar of widow’s award. The right to a widow’s award may be waived, and the doctrine of laches and estoppel applies to such claim.
    4. Evidence, § 41*—presumption of payment from lapse of time. Independently of limitations, the law raises a presumption that a debt which has been due and unclaimed and without recognition or payment of interest for 20 years has been paid.. >

      Appeal from the County Court of Johnson county; the Hon. John O. Cowan, Judge, presiding. Heard in this' court at the October term, 1919.
    Affirmed.
    Opinion filed March 25, 1920.
    O. B. Morgan, for appellant.
    Spann & Spann, for appellee.

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

   Mr. Justice Eagleton

delivered the opinion of the court.

In 1881, James P. Mathis departed this life intestate in Johnson county, Illinois, seized of personal property of the value of $408 and 40 acres of land of the value of less than $1,000, on which he resided with his family, and left Martha L. Mathis, his widow and four children, his only heirs at law.

On January 31, 1881, letters of administration were issued by the county court of said county to one S. P. Thacker. Appraisers were appointed who estimated the value of the widow’s award as $881, and this estimate with an appraisement bill and inventory were approved by the county court on the 18th day of April, 1881, and on the same day the administrator presented to the court his report showing the personal property belonging to said estate was insufficient to pay the costs and expenses of administration and the widow’s award and praying an order declaring said estate insolvent and directing him to pay the accrued costs and expenses and to turn the remainder of said personal estate over to the widow on her award and that he be discharged, which report was approved by the court and orders entered as prayed and the administrator complied therewith and was discharged on that day.

The widow continued to occupy said 40 acres of land as a homestead until her death in January, 1914. After the death of Mathis, his widow was married to one Fort, who died prior to her death. No administration was ever had of her estate.

On November 27, 1916, H. P. Thacker, as administrator of the estate of S. P. Thacker, deceased, filed a petition in said court for the appointment of O. B. Morgan, public administrator of Johnson county, as administrator de bonis non of the estate of James P. Mathis, the prayer of that petition was granted and said administrator duly appointed and qualified.

At the January term, 1917, of said court, Morgan, as administrator de. bonis non, filed a petition to sell the lands of which Mathis died seized to pay debts and John L. Whiteside, who had become the purchaser of said land, was made sole defendant to said petition. In the petition it was averred that S. P. Thacker, deceased, was the equitable owner of a claim of $44.60 that Thacker paid as surety of James F. Mathis, deceased. The fact as to the adjudication of the estate to be insolvent and the delivery of property to the widow on her award as above stated was also set forth in the petition.

The matters above recited appear in the evidence and are not controverted.

An answer to the petition was filed by Whiteside in which he denied the allowance of claims against said estate,, and stated that he purchased said land in good faith for it's full value and had made valuable and lasting improvements thereon and that the petitioner, creditors and distributees should be barred by laches and the statute of limitations.

A hearing was had in the county court April 25, 1919, and the petition dismissed and this appeal prosecuted by the administrator de bonis non.

It appears from the evidence that Grant Whiteside, the father of John L. Whiteside, purchased the interests of three of the heirs of James F. Mathis during thé life of his widow, and that he purchased the interest of the other heir in February, 1914, and that Grant Whiteside conveyed the land by warranty deed to the appellee for $500 on February 24, 1915, and it appears from the evidence that $500 was all the land was worth at the time the deed was made.

The first question presented is, are there any demands against the estate of James F. Mathis, deceased, for which the land in question should be sold to pay.

Counsel for the appellant, in his argument, takes the position that there are two demands against the estate of this character.

One for $44.60 and interest thereon in favor of Asahel Burnett, which it is said was allowed against Mathis’ estate March 21, 1881, as of the seventh class and claimed to have been assigned by Burnett to S. P. Thacker. This is the demand on which Thacker’s administrator based his petition for the appointment of an administrator de bonis non. The other is the balance of the widow’s award.

As .to the Burnett claim, the order of the county court with reference thereto, except the caption, is as follows: “Judgment for $44.60 in favor of Asahel Burnett rendered March 21, 1881, as of the seventh class, journal, page.”

The record does not show the administrator was present in court on March 21, 1881, pursuant to notice to meet claims, nor does it appear the administrator was before the court in any manner provided by law. In Hales v. Holland, 92 Ill. 494, the Supreme Court held: There is no pretense that there was ever any summons issued in this case, or that appearance was entered and service waived by the administrators. The probate court, therefore, never acquired jurisdiction of the persons of the administrators, and hence was powerless to allow the claim. * * * Such an order was simply void.” This rule was followed in the case of Atherton v. Hughes, 249 Ill. 317. Under these authorities the order allowing the claim of Burnett was a nullity.

As to the balance on the widow’s award, it appears that nearly 23 years elapsed between the approval of the estimate on the value of the widow’s award and the death of the widow and that 3 years elapsed between the death of the widow and the filing of the petition to sell lands by the administrator de bonis non. No administration was had of her estate and no one representing her or claiming any share or interest through her in the balance of her award participated in procuring the appointment of an administrator de bonis non. In addition to this is the fact that the only evidence offered relative to the claim for the balance of the award is the record of the county court approving the estimate of the appraisers and directing the administrator to turn the personal property to the widow. -

In Fagan v. Bach, 253 Ill. 588, the Supreme Court quoted with approval the following: “Independently of the statute of limitations, the law raised a presumption, in the absence of explanatory evidence, that a debt which has been due and unclaimed and without recognition or payment of interest for 20 years has been paid.” In Howe v. Brown, 287 Ill. 532, after quoting the foregoing, that court said: “The widow may waive her right to an award, and the doctrine of laches and estoppel applies to said claim.”

While it might be held that because the homestead estate of the widow continued during her lifetime that was sufficient excuse for delay during that period, but the delay of 3 years after her death is not sought to be excused, and taken with ,the other matters above stated, the administrator de bonis non did not present a case entitling him to the relief prayed.

Finding no reversible error in the record the judgment and decree of the-county court will be affirmed.

Affirmed.


text:
    Bank of Sandoval, Appellee, v. First National Bank of Sandoval, Appellant.
    1. Evidence, g 164

      —when slips used in adjusting accounts admissible. Where two banks adopt a method of adjusting their accounts by means of slips prepared by them respectively, if mistakes in the adjustments occur and an examination of the slips shows the errors complained of, the slips are competent evidence of the mistake, not being mere self-serving statements, and if one of the banks has destroyed the slips delivered to it, a duly proven copy of such slip is competent.
    2. Appeal and ekbor, g 1489*—when admission of evidence harmless. In a suit to recover an amount claimed by a bank because of a mistake in a settlement with another bank, where such parties had adopted a method of adjusting their accounts by means of slips prepared by them respectively, testimony of the plaintiff as to discovery of the mistake and that there was a certain amount due him was not injurious to the defendant, as another witness testified as to the mistake, and the conclusion of the witness as to the amount due was based on the slips that were given in evidence.
    3: Instructions, g 159*—construction as series. In an action to recover an amount claimed by a bank because of a mistake in a settlement with another bank, an objection to instructions as being directory, and failing to require the plaintiff to prove his case by a preponderance of the evidence, cannot be sustained when the instructions as series correctly state the law on the question.
    4. Instructions, g 114*—when issue not unduly limited. In an action by a bank to recover an amount claimed to be due because of a mistake in a settlement with another bank, an objection to an instruction, in that it limited the inquiry to a certain time covered by the plaintiff’s exhibits, could not be sustained as the whole controversy was confined to the transaction of days within the time mentioned.
    5. Instructions, g 93*—when properly refused. In an action by a bank to recover a balance due from another bank because of a mistake in a settlement of accounts, an instruction that if the plaintiff relied on telephonic conversations to establish the accuracy of his account the jury should consider whether the witness accurately remembered the conversation, was properly refused, as the plaintiff did not rely on the telephone conversations but such conversations were proved merely as preceding the daily adjustments.

      6. Appeal and ebror, § 1411

      —when verdict not disturbed. A verdict of the jury based on conflicting evidence will not be interfered with where such jury were fairly instructed and there was no error in the admission or rejection of evidence.
    Appeal from the Circuit Court of Marion county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed March 25, 1920.
    Kagy & Vandervort and Wilson & Couchman, for appellant.
    Noleman & Smith, for appellee.

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

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

   Mr. Justice Eagleton

delivered the opinion of the court.

The appellant, First National Bank of Sandoval, and the appellee, Fred F. Reinhardt, under the name of Bank of Sandoval, were each engaged in the banking business at Sandoval. In carrying on their respective businesses each would take up checks and other demands against the other, which were adjusted during the afternoon of each business day. In making these adjustments, some employee of each concern would add the various demands against the other on an adding machine and, after communicating the total amounts over the telephone, the representative of the bank holding the larger amount would go to the other bank, where the accounts would be adjusted. In making this adjustment each bank would deliver to the other the list of items held by it as made on the adding machine. At the time of making these lists a copy was always made by the appellee’s representative, which was retained. These clearings were usually conducted on behalf of the appellant by one Schneider and on behalf of the appellee by either his wife or Mrs. Cora Peters.

Some time prior to February 28, 1917, the cash account of appellee’s bank was short. On the day mentioned, the settlement was made in the usual manner by Mrs. Reinhardt. On an examination she discovered that the amount of the checks shown by her duplicate slip was $10 more than the amount shown on the slip furnished her by the appellant on which the difference was determined. Mrs. Reinhardt returned to appellant’s bank and the matter was adjusted.

On an investigation the appellee concluded that similar mistakes had been made in former settlements and, after some fruitless efforts to settle, this suit was •commenced, and the case being tried before a jury, a verdict was returned in favor of the appellee for $132, .and after a motion for a new trial was overruled, judgment was rendered on the verdict.

The position of the appellee is that when daily clearances were made his representative would furnish Schneider, the representative of the appellant, the slip showing the demands of the appellee and that Schneider would make the deductions and pay the difference, and that in making these deductions Schneider would write a sum less than the total of the appellee’s demands on the slip prepared for the appellant and subtract the total of appellant’s credits from such reduced amount and pay the difference, thereby failing to pay the appellee the total amounts due him.

Complaint is made as to the ruling of the court on the admission of evidence and of the giving and refusing of instructions and that the verdict is against the weight of the evidence.

The first objection is as to the ruling of the court in admitting in evidence the slips furnished by the appellant to the appellee and copies of the slips furnished by the appellee to the appellant in the daily adjustments. There were 32 of these slips covering 16 days. It is argued that the copies made for the appellee were merely self-serving statements and were incompetent as evidence. Counsel for the appellant stated on the trial that the originals had been destroyed. Mrs. Peters and Mrs. Reinhardt identified the copies made as copies of the slips delivered to the appellant and that they were correct.

The parties having adopted the method of adjusting their accounts by means of the slips prepared by them respectively, if mistakes in the adjustments occurred and an examination of the slips showed the errors complained of, the slips were competent, and if one of the parties had destroyed the slips delivered to,him, a duly proven copy was competent. When settlements were made, the parties, in effect, agreed that the slips were correct. Butler v. Cornell, 148 Ill. 281. These slips do not fall within the rule as to books of account for the reason that the latter are made in the absence of the party charged and entirely withm the control of the party keeping the book and are strictly self-serving statements, admissible in evidence under certain restrictions.

The next error urged is the ruling of,the court in permitting the appellee to testify about a mistake being discovered in the clearing of February 28 and that it was adjusted and that he was permitted to testify that there was $132 due him. Mrs. Reinhardt testified about the mistake made in the settlement of February 28 and no objection was made and the testimony not controverted. On the question a.s to the amount claimed to be due, the appellee based his conclusion on the slips that were.given in evidence. Under these conditions the appellant was not injured thereby.

Appellant’s objection to the first and second instructions given at the request of the appellee is that they are directory and both omit all reference to the requirement that he must prove his case by' a preponderance of the evidence. These two instructions and the third instruction given at the request of the appellee are also objected to because they limit the inquiry to the 16 days covered by the appellee’s exhibits. As to the first objection, the first two instructions given at the request of the appellant inform the jury that the plaintiff must prove his case as laid in the declaration by a preponderance of the evidence, and that if the evidence was evenly balanced they should find for the defendant. As a series the instructions correctly stated the law on this question, and for that reason they were not erroneous in that particular. On the other proposition it does not appear there was any claim on the part of the appellant that any mistake which might have existed, except the one of February 28, had ever been corrected or in any manner adjusted, nor that any mistakes had at any time been made against the appellant nor that the transaction of any other days would in any manner change the result. It appears that the whole controversy was confined to the transaction of the days mentioned, hence it was not improper to limit the inquiry to the particular time mentioned.

The instruction offered by the appellant and refused by the court informed the jury that if the plaintiff relied on telephonic conversations to establish the accuracy of his account they should take into consideration whether the witness could accurately remember the conversation. Witnesses for the appellee did not rely on such conversations for that purpose. The only testimony about such conversations was as to communications preceding the daily adjustments. The court did not err in refusing this instruction.

While there was some conflict in the evidence, the jury having been fairly instructed and no error appearing in the admission or rejection of evidence, this court will not interpose its judgment over that of the jury.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

Affirmed.


text:
    Charles L. Boyles, Appellee, v. Royal Canner Manufacturing Company and N. L. Heilbrun, Receiver. Royal Supply Company, Interpleader, Appellant.
    Attachment, § 163

      —when levy superior to rights of foreign receiver or purchasers from him. A receiver appointed in a foreign State who has not taken possession of property in this State before attachment of the same by resident creditors cannot successfully resist the levy under the writ of attachment, and a purchaser from the receiver or persons claiming under that title are in no better position than the receiver would be.
    Appeal from the Circuit Court of Edwards county; the Hon. Charles H. Milleb, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed March 25, 1920.
    E. B. G-keen, Theodore G-. Risley and Allen E. Walker, for appellant.
    P. O. Walters, for appellee.

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

   Mr. Justice Eagleton

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Edwards county.

An attachment writ was sued out of said court returnable to the November term, 1918, by Charles L. Boyles, the appellee, against the Royal Canner Manufacturing Company and N. L. Heilbrun, receiver. The affidavit was filed and the writ issued on June 1, 1918, and the levy made June 14,1918. The property levied on was located in Albion, Illinois.

At the November term, 1918, of said court, the Boyal 'Supply Company, the appellant, filed an inter-pleader claiming the property levied on by virtue of being the purchaser thereof. At the April term, 1918, of said court, a jury being waived, the cause on the interpleader was tried by the court on an agreed state of facts and the issues found in favor of the appellee and judgment entered accordingly.

The question presented in the argument of the parties is as to the right of the appellee to maintain his attachment against the property.

The Boyal Canner Manufacturing Company was organized as a corporation, under the laws of the State of Ohio, in the early part of the year 1917. Its principal office was in the City of Cincinnati, Ohio, and while it was not licensed to carry on its business in the State of Illinois, it maintained, a branch office for the manufacture of canners’ suplies in the City of Albion, Illinois.

On September 24, 1917, a bill was filed by B. T. Baber, a stockholder of said corporation, in the superior court of Cincinnati, in the county of Hamilton and State of Ohio, stating that said corporation was insolvent and praying the appointment of a receiver, and one N. L. Heilbrun was appointed by said court.

On October 2, 1917, said Heilbrun was appointed ancillary receiver for the State of Illinois by the circuit court of Edwards county.

The appellee, Charles L. Boyles, was a citizen of the State of Illinois and engaged in the hardware business at Albion and sold the Boyal Canner Manufacturing Company hardware to the amount of $442.72, which said sum was due and unpaid on the 1st of June, 1918.

' On the 18th day of February, 1918, Heilbrun, as receiver, executed a bill of sale to Lyman W. Wilson for all goods, chattels and effects belonging to said Boyal Canner Manufacturing Company, which in-eluded the property levied on under the writ of attachment in this case. The bill of sale recited the same was executed by virtue of an order of sale made by the superior court of Cincinnati.

On February 19,1918, Wilson, by his written assignment on said bill of sale, transferred all his title and interest in the property described therein to R. T. Baber.

On the 8th day of April, 1918, R. T. Baber sold and assigned all property included in said bill of sale to the appellant, The Royal Supply Company. This bill of sale bears date of April 8, 1918, but the certificate of acknowledgment bears date of October 30, 1918.

It is expressly stipulated that the appellee had no actual notice of the appointment of Heilbrun as receiver nor any actual notice that he had taken possession of the property in question.

The above facts appear in the stipulation upon which the case was tried and the exhibits thereto attached and made a part of the stipulation.

It will be observed that the sale under which the appellant claims title to the property was made by Heilbrun as receiver by the appointment of the superior court of Cincinnati and was made pursuant to the order of that court.

It nowhere appears in' the record that Heilbrun, either under his appointment as receiver or as ancillary receiver, ever took possession of the property in question or that he did any act under his appointment by the Illinois court, nor does it appear that any one claiming title under the sale made by the order of the Cincinnati court attempted to take possession of or assert or give notice of any claim of title to the property prior to the levy made in this case.

This presents the question as to the rights of a foreign receiver over assets in this State upon which a resident creditor has caused a writ of attachment to be levied.

The Supreme Court in discussing this question held as follows:

“The general doctrine that the powers of a receiver are coextensive only with the jurisdiction of the court making the appointment, * * * we fully concede; and were this the ease of property situate in this State, never having been within the jurisdiction of the court that appointed the receiver, and never having been in the possession of the receiver, it would be covered by the above principles, which would be decisive against the claim of the appellee.” Chicago, M. & St. P. Ry. Co. v. Keokuk Northern Line Packet Co., 108 Ill. 317.

The rule as stated in Pomeroy’s Equity Jurisprudence (Equitable Remedies), vol. 5, sec. 253, is as follows:

“Difficult questions often arise where the attaching creditors in the local State have attáched after the appointment of the receiver in the domiciliary State. If the receiver has obtained possession, his possession should be protected. His possession is in the nature of a property right, and is held so to be almost universally. But where the receiver has not yet collected the fund or taken the property into his possession, and creditors or others have obtained rights or liens upon the property or fund in the State where it is situated, some distinctions must be observed. If the appointment of the receiver is involuntary, especially in aid of a statutory judicial proceeding, the prevailing doctrine seems to be that, where the rights of domestic creditors are involved, the assignment will not be recognized outside of the jurisdiction of appointment.”

In the case of Hunt v. Gilbert, 54 Ill. App. 491, the Appellate Court for the First District held that a resident attaching creditor had rights superior to the rights of a receiver appointed in a foreign jurisdiction and said:

“But it is not the policy of this, or any other State, so far as we are advised, to permit receivers of foreign corporations to come within its limits and remove from our jurisdiction the property here located of such corporations, and thereby require our citizens who have claims against them to go into foreign jurisdio tion to assert their rights.”

From the foregoing it follows that the receiver not having taken possession of the property in question prior thereto could not have successfully resisted the levy under the writ of attachment. The purchaser from the receiver and persons claiming under that title, including the appellant, not having taken possession of the' property, must be held to be in no better position than the receiver would be. To hold otherwise would, in effect, nullify the law protecting domestic creditors to the extent of assets located within this State and belonging to the estates of insolvent nonresident debtors. For these reasons the trial court did not err in- holding thé levy under the writ of attachment superior to the claim .of the appellant.

-Finding no reversible error in the record, the judgment of the trial court is affirmed.

Affirmed.


author: Mr. Justice Higbee

text:
    William P. Early, Appellee, v. George Cassens, Appellant.
    1. Principal and surety, § 8

      —right of sureties to vary liability. Sureties may by special contract vary their liabilities, as to themselves, from that which the law ordinarily implies, and it is competent, as between the sureties, to prove such special agreement by parol evidence.
    2. Principal and surety, § 1*—when question for jury whether plaintiff made payment as surety for defendant. In an action to recover money paid where the plaintiff claimed that he acted as surety for the defendant, and the evidence was in conflict, the question whether the promise sued on was original or collateral was for the jury.
    3. Frauds, statute of, § 2*—independent and collateral promises. In an action to recover money paid out where the plaintiff claimed that he signed a note of a corporation at the request and with the verbal assurance of the defendant, who also signed, that the plaintiff would not be required to pay any part of the note, if the agreement was independent, it was not within the statute of frauds, but if it was collateral to the agreement of the other person so that it was a promise to answer for the' debt or default of that other, it was within the statute.
    4. Frauds, Statute of, § 2*—when promise not collateral. Where a plaintiff signed a note of a corporation at the request of a defendant and in reliance on his verbal assurance that he would not be required to pay any part of the note, the promise of such defendant was not a collateral undertaking, as it is the rule under the statute of frauds that there must be an existing debt or obligation at the time that the promise is made, and such debt must be of the person for whom the promise is made to the person to whom it is made.
    5. Assumpsit, § 23*—right to recover under the common counts. When a contract sued upon has been fully performed on the plaintiff’s part, and nothing remains to be done under it except for the defendant to pay whatever money is due from him, the plaintiff may recover under the common counts.
    6. Assumpsit, § 87*—what evidence admissible. In an action under the common counts, where the plaintiff alleged that he signed notes as surety for a corporation on the promise of another surety that he would not be required to pay such notes, it was not error to admit the notes in evidence, as they were competent to prove the promise sued on and to show performance by the plaintiff.
    7. Pbincipai, and surety, § 2

      —what is sufficient consideration for contract between sureties. In an action to recover from a defendant surety on notes, where the plaintiff also signed such notes as surety in reliance on the statements of the defendant that the notes would be paid, and no loss would occur, the fact that the transaction was of advantage to the defendant formed a sufficient consideration for the promise.
    8. Evidence, § 350*—admissibility of parol to show collateral contract. Parol evidence is admissible to prove that when sureties signed a note of a corporation, an agreement was entered into between two of such sureties whereby one was signing as surety for the other only.
    Appeal from the Circuit Court of Madison county; the Hon. Lotos Bebnbeuter, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed March 25, 1920.
    J. F. Eeck, for appellant.
    Terry, G-uelttg & Powell, for appellee.

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

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

   Mr. Justice Higbee

delivered the opinion of the court.

Appellee, William P. Early, sued appellant, George Cassens on the common counts in assumpsit to recover money paid out by appellee, as he claims, as surety' for appellant. In 1907 the Cassens Manufacturing Company was organized with a capital stock of $250,000 to manufacture and place on the market a certain eaves trough or gutter patented by appellant. The capital stock was divided into 250 shares of the par value of $100 each. Appellant retained 125 shares for his patent and 42 shares remained in the treasury unsold. The other 83 shares were held by various persons, appellee owning 5 of them. Appellant was president and manager and for a time, at least, conducted and practically controlled the business of the company as he saw fit. The company did not prosper and it became necessary to raise more money. Appellant appears to have surrendered or transferred to his brother, 75 of his 125 shares to be sold, together with that retained in the treasury, for the benefit of the corporation, but there seems to have been no market for the stock, and so far as the record shows the company realized nothing from these shares. The sum of $3,500 was borrowed from the First National Bank of Edwardsville on two notes, one for $2,500 and one for $1,000. These notes were signed by the Cassens Manufacturing Company, by its officers and also by some of the stockholders, individually, including appellant and appellee. They were renewed from time to time, or at least were renewed on November 4, 1913. When these notes became due, the bank insisted upon payment, and on January 22, 1916, the $2,500 note was paid by the stockholders who had signed it, appellee paying $372.50 as his share. On that date the $1,000 note was renewed. One of the stockholders, W. Q-. Kriege, who had signed previous notes, insisted on winding up the corporation and refused to sign the notes. After the renewal of the $1,000 note on January 22, 1916, the business of the corporation was closed up and its property and effects were sold. The net proceeds of this sale, amounting to $595.75, were applied to the payment of the $1,000 note and interest, leaving a balance of $504.25 unpaid. This balance was. paid by four of the five signers of the note, appellee paying $201.70, being two-fifths of the note, and appellant paying nothing. This suit was brought to recover these two payments of $372.50 and $201.70 made by appellee, with interest thereon. Upon trial before a jury a verdict for $643.15 was returned in favor of appellee, and appellant by this appeal seeks to reverse the judgment rendered on that verdict.

•It is the contention of appellee that when he signed the notes he objected to obligating himself to that amount as he owned only 5 shares of the stock, while appellant was the principal stockholder to such an extent that a loan to the company was practically a loan to him; that appellee then insisted that the affairs of the company be wound up and its effects sold and applied to its debts, and that appellant, then, expressly agreed and promised that if appellee and others of the stockholders would sign the notes, none of them should be required to pay any part of them. Appellee testified on the trial that appellant at that time said: “I will sacrifice every bit of property or money that I have, before you gentlemen shall be called upon to pay a cent of this money,” and that it was only with this assurance and understanding that he consented to and did sign the notes; that he signed only as surety for appellant, even though Cassens Manufacturing Company was the principal maker. It was upon such claimed agreement and promise that appellee relied to recover from the appellant the sums paid by him on the notes.

Appellant denies he made the above statement or gave appellee any such assurance or made any such promise, and takes the position that Cassens Manufacturing Company was the principal maker of the notes; that the other signers, including himself, were sureties thereon, and that no other relation of the signers can be shown by parol. Appellant also claims that even if he did make the assurance and promise claimed, it was in effect a collateral agreement to answer for the debt, default or miscarriage of another, and therefore within the statute of frauds, and void because not in writing; that such agreement, if made, was a special contract and no recovery could be had thereon under the common counts, and that it was error to admit the notes in evidence under the common counts. The evidence in this case clearly establishes the fact that appellant made the verbal assurance or agreement as contended by appellee, before appellee consented to and did sign the notes.' Appellee and three of the other signers of the notes, who are not parties to this suit, so testified and the only evidence to the contrary is that of appellant. Appellee also testified that he signed the notes only as surety for appellant.

It is well established that sureties may by special contract vary their liabilities, as to themselves, from that which the law ordinarily implies, as for instance; one surety may agree to indemnify another or one surety may sign as surety for another, who is himself surety for the principal maker, and that it is competent, as between the sureties to prove such • special agreement by parol evidence. Paul v. Berry, 78 Ill. 158; Robertson v. Deatherage, 82 Ill. 511; McDavid v. McLean, 202 Ill. 354; Myers v. Fry, 18 Ill. App. 74. The determination of this case is dependent on whether the agreement sued on is an original and independent one, in which case it is not within the statute, or collateral to the agreement of another person, whereby the promise is to answer for the debt or default of that other which would cause it to fall within the statute. Spear v. Farmers’ & Mechanics’ Bank, 156 Ill. 555. Appellant owned more of the outstanding stock of the corporation than all the other stockholders. The proof shows he was most active in securing the loan and insisted upon a renewal of the notes. He called upon appellee at his office and there urged him to sign the notes, and appellee testified he was induced, by the agreement of appellant above mentioned, to waive his right to insist upon the closing up of affairs of the company and the sale of its property while there was sufficient to pay its indebtedness. The continuance of the business was to the advantage of appellant more thap any one. If, as appellee testified, he refused to sign the notes until appellant promised to protect him from any liability, and then he signed as surety for appellant, it could not be questioned that appellant’s promise was an original and independent undertaking between him and appellee, and not within the statute of frauds. Whether or not the promise sued on was original or collateral was a question to be determined by the jury from all the circumstances of the case, under the instructions of the court. Lusk v. Throop, 189 Ill. 127. The' jury found for appellee. The proof tending to show appellee signed as surety for appellant is such that even though that were the only basis for' a finding that the promise sued on was an original undertaking between appellee and appellant, we would not be justified in disturbing a verdict to that effect. But conceding that appellee, in legal effect, did sign the notes as surety for Cassens Manufacturing Company, we are not inclined to hold, under the facts in proof in this case, that the promise sued on is a collateral undertaking. If the promise sued on is a collateral undertaking to answer for the debt, default or miscarriage of another person, who is that other person? Obviously such other person must be the Cassens Manufacturing Company. What, then, was the debt or obligation the Cassens Manufacturing Company then owed appellee to which the promise sued on was collateral? The Supreme Court of this State has held that “when the promise is made, there must be an existing debt.” Lusk v. Throop, supra. Not only must there be an existing debt or obligation at the time the promise is made, but it must be a debt or obligation of the person for whom the promise is made to the person to whom it is made. “In order that the promise can be held to be within the statute, it is essential that there be a binding and subsisting obligation or liability to the promisee, to which the promise is collateral. In other words ‘that the party for whom the promise has been made must be liable to the party to whom it is made’ (3 Pars, on Contr. sec. 21, note p. [cases cited]). * * * In Hargreaves v. Parsons, supra [13 M. & W. 561], it was said by Parke, B.: ‘ The statute applies only to promises made to the persons to whom another is already or is to become answerable. It must be a promise to be answerable for a debt of or a default in some duty by that other person towards the promisee. ’ In Perkins v. Littlefield, supra [5 Allen 370], Bigelow, J., said, ‘It is a well-settled doctrine, that the provision in the statute is applicable only to promises made to persons to whom another is answerable. ’ ” Resseter v. Waterman, 151 Ill. 169.

Appellee contends appellant made his promise when the notes were first given, as well as when they were renewed, and we think the proof sustains this contention. No express agreement whatever was shown at that or any other time between Cassens Manufacturing Company and appellee. The debt, obligation or duty the company then owed appellee was only that of a principal maker of a note to his surety before default. Was this sufficient obligation to bring appellant’s promise within the statute? The Supreme Court in the case of Resseter v. Waterman, supra, following the above-quoted language, also said:

“The principle under consideration is illustrated by Mr. Bishop (Law of Contr., sec. 1265), as follows: ‘One’s promise to another to see him harmless, should he become surety for a third person, or should he do anything else, is a mere arrangement between promisor and promisee. It is to pay what the one to whom it is made may become liable for,—not “another’s” debt, but his. Therefore it is not within the statute, and is valid though oral. * * * On principle, this question is determinable by a very simple test. You promise James, that, if he puts his name, as surety for John, on a bond running to Bichard, you will hold him harmless; he does it; John makes default. All agree that, in this case, John is the “another” of the statute. But Bichard, to whom the debt is due, cannot sue you; John failing, his claim over is alone on James. Aside from difficulties as to the form of action, your liability begins only when James has paid him. There remains now for adjustment only what you had promised to James, who is not “another,” but the promisee himself—the debt is yours to him, and there is nothing going out from you to any third person. Hence, the case is not within the statute.’ ”

Under these authorities we must hold that even though appellee be considered as surety for Cássens Manufacturing Company, such company had not made default in payment, and it owed appellee no debt or obligation, capable of enforcement, at the time the promise sued on was made, to which appellant’s promise could be collateral, and that therefore it was an original and independent undertaking and not within the statute. In reaching this conclusion we are not unmindful of the fact that in Brand v. Whelan, 18 Ill. App. 190, the court after stating that, “The question whether a contract of indemnity against the liability of a surety or a guarantor for a third person is within the Statute of Frauds has been the subject of very great and perplexing discussions both in this country and in England, and very different conclusions have been reached by different courts,” held, that such a contract is within the statute. We conclude, however, that under the proofs in this case and in accordance with the weight of the authorities recognized by the courts of this State, that even though appellee signed as surety for Cassens Manufacturing Company, that company owed no debt or obligation to appellee a.t the time of appellant’s promise, to which such promise could have been collateral, and that appellee signed the notes at the request of appellant and extended credit solely to him, and therefore the promise sued on is npt within the statute. If, as we have held, the promise sued on was an original undertaking, we must also hold that a recovery could be had thereon under the common counts. When a contract sued upon has been fully performed on the plaintiff’s part, and nothing remains to be done under it except for the defendant to pay whatever money is due from him, the plaintiff may recover under the common counts. Union El. R. Co. v. Nixon, 199 Ill. 235; Gibson v. O’Gara Coal Co., 151 Ill. App. 424. It was not error to admit the notes in question in evidence in this case under the common counts. They were competent as tending to prove the promise sued on was made and to show it had been performed by plaintiff.

What has already been said disposes of the contention that there was no consideration for the promise of appellant. If the transaction was of advantage to appellant or detrimental to or to the disadvantage of appellee, it would form a sufficient consideration for the promise. Resseter v. Waterman, supra. It also disposes of the contention that it was error for the court to give plaintiff’s second instruction, which in-, formed the jury in substance that- if the evidence showed that at the time the notes introduced in evidence were executed, a verbal agreement was made between plaintiff and defendant that the plaintiff was signing as security for defendant only, then the plaintiff could recover the money he had been compelled to pay out, together with interest. Under the authorities cited herein, it was competent to prove such an agreement by parol evidence and the instruction correctly stated the law.

The judgment of the trial court will be affirmed.

Affirmed.