author: Wtlsoh, P. J.

text:
    James W. Brockway v. Cook County.
    1. Recorder, duties op—Certifying to abstracts.—The county com missioners of Cook county having purchased a set of abstract books of title to real estate, the county recorder, at the request- and by the direction of the county board, took charge of the same, and made out and certified to abstracts of title for persons applying for the same, charging and receiving therefor compensation at rates fixed by a schedule furnished to the recorder by the county board. Held, that the services of the recorder in making out and certifying to such abstracts were outside of his duties as recorder, and that he was not compensated therefor by his salary as recorder.
    2. Suit by county board por moneys retained by recorder.— The county brought suit against the recorder for moneys retained by him as compensation for such services out of the receipts derived from the making and certifying to abstracts. Held, that it was immaterial whether the county board had or had not authirity to engage in the business of making and selling abstracts. If it had authority to do so, and employed the defendant, it had authority to pay him for his services, and the services being rendered, a promise to pay would be implied. If, however, the business of making and selling abstracts was ultra vires the corporate powers of the board, the county could maintain no action to recover the avails of such enterprise. In such cases the law leaves the parties in the condition in which they have placed themselves, and will help neither.
    i$. County board engaging in business op abstract Making-Employment op recorder.—If the board had authority to engage in the business of abstract nuking, no reason is perceived why itmightnot employ the recorder to transact the business as it might any other person.
    Appeal from the Superior Court of Coolc county; the Hon. Sidney Smith, Judge, presiding,
    Opinion filed January 6, 1885.

      Mr. Iba W. Buell, for appellant;
    as to the powers of municipal corporations, cited Green’s Brice’s Ultra Vires, 2 Am. Ed. 728; City of East St. L. v. East St. L. G. L. & C. Co., 98 Ill. 415; 1 Dillon on Municipal Corporations, 23, 115; Webster v. the People, 98 Ill. 343; Cook Co. v. McCrea, 93 Ill. 236; Chicago Building Society v. Crowell, 65 Ill. 453; Cooley’s Constitutional Limitations, 260.
    Mr. William Law, Jb., for appellee.
   Wtlsoh, P. J.

This is an action of debt brought by the county of Cook against appellant, James W. Brockway, to recover the sum of five hundred dollars claimed by the county to be due to it from appellant, on the first day of June, 1883, under the facts hereinafter stated. The declaration contains the common counts, also a special count, which sets forth that on December 1, 1882, the defendant was the duly elected recorder of deeds of Cook county, an office created by the constitution of the State of Illinois, which provides that the defendant’s only compensation shall be a salary fixed by law, and that all fees, perquisites and emoluments above such salary shall be paid into the county treasury. That defendant’s salary was fixed by law at $3,000 per annum, and he was required to pay into the county treasury all fees, perquisites and emoluments of his office, and to make report under oath to the chairman of said board semi-annually of all such fees and emoluments and of all necessary expenses for clerk hire, stationery, etc., for the half year ending at the date of such report. That during the half year ending May 31, 1883, defendant, as such recorder, received as perquisites $500 over and above his salary and necessary expenses for said half year, which he refused to pay into the county treasury, etc.

The defendant pleaded nil debet, the plaintiff stipulating that he might introduce any evidence in defense admissible under special pleas properly formed. The case was tried by the court without a jury, resulting in a judgment for the county for $500, from which the defendant appealed to this court.

The only evidence heard upon the trial was introduced by appellee, and consisted of the written report of appellant to the board of county commissioners of Cook county, dated December 3, 1883, and appellant’s oral testimony. From this evidence it appears that appellant was duly elected recorder oí deeds of Cook county in 1876, and has been acting as such recorder continuously since December 4th of that year, having "been elected as his own successor in 1880. That during all liis said term of office,'acting under the authority and direction of said comity board, with the aid of certain assistants employed and paid by appellant, with the approval of said board, oat of the proceeds of abstract making, appellant, besides discharging tlie statutory duties of his office as recorder, has been engaged in revising, classifying and transcribing certain abstract books, purchased by said board in 1875 of Wilmans and Thielke, and in keeping np said books, preparing index books showing the judgments entered in the courts of Cook county, including the federal courts, keeping index books of tax sales, making tract indices, and in making abstracts of title to real estate in Cook county for persons applying therefor, certifying to the same by affixing his signature as recorder together with his official seal, and collecting compensation for making and certifying to said abstracts according to a schedule of rates fixed by said county board, from which business of making and .selling abstracts large receipts of money in excess of the expenses of said business have been derived, of which semi-annual reports have been made by appellant to said county board, and the total amount of said receipts, less said expenses and less the sum of one thousand dollars per annum retained by said appellant, with the approval of said board for his services so rendered, has been paid into the county treasury.

The $500 for the recovery of which this suit was brought is a part of the net earnings derived from said business of abstract making during the period commencing December 1, 1882, and ending June 1, 1883, and is retained by said appellant as compensation for his services rendered as aforesaid during that period.

It appeal's from the evidence that the moneys derived from the abstract business were kept by appellant separate and apart from the money received in the recording department. It should be further stated that the county board had from time to time approved of appellant’s semi-annual reports, in which he had deducted from the moneys received for abstracts at the rate of one thousand dollars per annum as his compensation for supervising the abstract business and making abstracts, and that in making out the salary list for the years I860 and 1881 the board had unanimously adopted the report of the committee on public service fixing the compensation of the recorder, as chief of the abstract department, at $1,000 per annum.

It is claimed on the part of the county that “ the county board has no legal authority to allow to the recorder any extra compensation for superintending said abstract department over and above his salary as fixed by law, nor has the recorder a right to demand any extra compensation and to retain the same out of moneys in his hands as recorder.”

On the part of appellant it is insisted that the business of making and selling abstracts for profit and gain is not within the corporate powers of the county, and being ultra vims and illegal, the county can claim no share of the profits arising therefrom, and can maintain no action in respect thereto. Second, that the business of making abstracts of title and certifying to the same is no part of the duties of the recorder of deeds required by law, nor is he required to keep an index of judgments of the various courts, nor an index to tax sales, and that for the work so performed by him at the request and by direction of the county board, including the labor, care and responsibility involved in making and certifying to abstracts of title, he is entitled to a just and reasonable compensation; that the money sued for, being a part of the net receipts and profits derived from making and certifying by appellant to abstracts of title, is no part of the proper fees, perquisites or emoluments of his office of recorder, which he is bound by law to pay over to appellee, and that said money is rightfully retained by him, and is due to him individually for compensation for services rendered under an implied, if not an express, contract with appellee.

The office of the recorder of deeds of Cook county was created by the constitution of 1870 (Art. 10, Secs. 8 and 9), ■which provides that he shall receive as his only compensation for his services a salary to be fixed by law, to be paid out of the fees of the office actually collected; and all fees, perquisites and emoluments above the amount of said salar}7 shall be paid into the county treasury. By Sec. 31, Chap. 53, Rev. Stat., the salary of the recorder of Cook county was fixed at $3,000 per annum, and by the same section he is required to report in writing, under oath, on the first day of June and the first day of December in each year, all fees and emoluments of his office for the half year ending at the date of such report, and all expenses incurred; and it is made the duty of the board to audit his accounts and correct and adjust the same according to the facts.

Under the view we take of the case it is unnecessary to express any opinion as to the authority or legal right of lhe county board to engage in the business of making and selling abstracts of title. It is not claimed that such authority is conferred in express terms, but that it may be fairly implied from other powers which are expressly'granted by the statute. The question with which we shall principally concern ourselves relates to the duties which by law are imposed upon the recorder by virtue of his office, since, if the making and certifying to abstracts is not one of them, it would logically result that for such services he is not paid by the receipt of his salary as recorder.

The act in relation to recorders (Ch. 115, Rev. Stat.) points out specifically the powers, duties and liabilities of that officer, and is applicable alike to recorders elected in counties having a population exceeding sixty thousand, and to clerks of the circuit court, who are made ex offioio recorders in counties having a population less than sixty thousand. He is required to give a bond conditioned for the faithful discharge of the duties of his office, and to deliver up all papers, books, records and other things appertaining to his office whole, safe and an defaced when lawfully required to do so. He may appoint deputies, for whose neglect or omission of the duties of his office he is liable in the same manner as for his own personal neglect or omission. By section 9 it is made his duty, as soon as practicable after the filing of any instrument in writing in his office entitled to be recorded, to record the same at length, in the order of time of its reception, in well bound books to be provided for that purpose. By sections 10 and 11 he is required to give a receipt, to the person leaving an instrument for record, and to indorse upon such instrument the time when the same was filed for record, and the book and page in which the same is recorded.

Section 12 provides that every recorder shall keep the following books:

First. An entry book, in which he shall, on the receipt of any instrument to be recorded, enter in the order of its reception the names of the parties thereto, its date, the day of the month, hour and year of filing the same, and a brief description of the premises, indorsing upon such instrument a number corresponding with the number of such entry.

Second. A grantor’s index, in which shall be entered the name of each gr.antor in alphabetical order, the name of the grantee, date of the instrument, time of filing, kind of instrument, consideration, the book and page in which it is recorded, and a brief description of the premises.

Third. A grantee’s index, with like data as those required by the grantor’s index.

Fourth. An index to each book of record, in which shall be entered in alphabetical order the name of each grantor and grantee, and the page in which the instrument is recorded.

The Fifth specification is as follows: “ When required by the county board, an abstract book, which shall show by tracts every conveyance or incumbrance recorded, the date of the instrument, time of filing the same, the book and page where the same is recorded, which book shall be so kept as to show a true chain of title to each tract-and the incumbrances thereon, as shown by the records in his office.”

Sixth. An index to recorded maps, plats and subdivisions, such index to be made by description of land mapped or subdivided, by range, township, section, quarter section, etc.

Section 19 provides that when abstract books have not been kept in any county up to the time of the taking effect of this act, the county board of such county may, if they deem it expedient, procure such abstract books to be made in the form prescribed in this act at the cost of the county', showing a connected chain of title and incumbrances up to the time of the taking effect of this act.” .;

The foregoing are all the provisions relating to the duties of the recorder which have any bearing on the question now under consideration. Clearly none of them impose upon the recorder the duty of making out and certifying to abstracts of title, nor are we aware of any law authorizing the county board to impose upon the recorder any additional duties beyond those designated by the statute, certainly npne which he could be required to perform without additional compensation. That such was the view entertained by the commissioners themselves is shown by the fact that for several years they allowed and paid him, in addition to his salary as recorder, $1,000 per annum for extra services in the abstract business, including the making out and certifying to abstracts.

The fifth specification, which is the only provision that can be supposed to give any color to the claim of appellee, provides only for the keeping of con abstract book, “ to be so kept as to show a true chain of title.” The duty of making and certifying to abstracts is nowhere mentioned or alluded to, nor can any such duty be fairly implied from any provision of the statute. In the absence of any other provision on that subject, we must presume from the language used that the legislature intended merely to provide for the keeping of a book for the convenient use of the public in examining titles to real estate, and which, like the record of deeds, or judicial records of the different courts, should be open to the inspection and examination of every one.

Snell a book, showing in a condensed form matters which could otherwise only be ascertained by a protracted examination of voluminous record books, thereby saving time and expense, would be of public benefit. The plain wording of the statute embraces no more than the keeping of such a book, and to hold that the delicate and responsible duty of making and certifying to abstracts of title was thereby imposed upon ■the recorder, is stretching the doctrine of implication to an unwarrantable length. ' The fact that appellant affixed to his signature to the certificates the words “ Recorder of Cook County,” is a matter of no moment, if he was not authorized by law to make such certificates m his official capacity. The addition of the words must be taken to be merely descriptio personae.

If then appellant, at the instance and request of appellee, rendered services not embraced within the limits of his duties as recorder, but outside thereof, as the result of which service he has money in his hands with which to compensate himself therefor, it would seem that as to him it is immaterial whether the county had or had not authority to engage in the business in respect to which such services were rendered, since if, on the one hand, the county had authority to so employ him, it had authority to pay him, and the services being rendered, a promise to pay would be implied. If, on the other hand, the county had no legal or competent authority to engage in the business of making and selling abstracts, and the doing so was ultra vires the corporate powers of the county board, the county could maintain no action to recover the fruits of such enterprise from its employe. In such case the law leaves the parties in the condition in which they have placed themselves, and will help neither. Thus, taking either horn of the dilemma, the plaintiff’s action must equally fail. Appellant has the money in his possession, and the rule “potior conditio defendentis ” applies. 2 Par. Con. 747; Howson v. Hancock, 8 Term, 575; City of Champaign v. Harman, 98 Ill. 491; Foote v. Emerson, 10 Vt. 338; Pepper v. Haight, 20 Barb. 429. Had appellant paid over the money to the county treasurer, and this were,,a suit brought by him to recover it back, the case would present a different aspect.

If the county had authority to engage in the business of making and selling abstracts, no reason is perceived from the circumstance that appellant held the office of recorder, why the board might not employ him, as it might any other person, to take the charge and supervision of the business. The amount retained by him for his services does not appear to have been unreasonable. The supervision of a business requiring eighteen or twenty clerks, in addition to the responsibility of certifying to the correctness of abstracts, for which in case of errors or mistakes appellant might perhaps be held personally liable in damages, is a service for which it would seem a thousand dollars a year was no more than an adequate compensation. The business appears to have been managed faithfully and well, and it resulted in large profits to the county over and above all expenses.

We are of opinion that both the merits and the law of the case are with appellant, and that the judgment of the court below ought to be reversed.

Judgment reversed.


source: Caselaw Access Project

author: Wilson, P. J.

license: Public Domain

text:
    Herman Seimon et al. v. Peter Allard.
    Replevin—Pleading.—In an action of replevin under a plea of justification, setting up the judgment against D., and levy by constable upon execution issued thereon, and that the goods were the property of D. and not of the plaintiff, and that the officer levying was a constable de jure, evidence was offered to prove that a sham sale of the goods had been made by D. to plaintiff. Held, that such evidence was admissible under the pleadings. Defendants were not compelled to disclose by special plea, in advance, the grounds of their attack.
    Appeal from the Circuit Court of Cook county; the Hon. William H. Barnum, Judge, presiding.
    Opinion filed January 6, 1885.
    This was replevin for a quantity of building material and apparatus, brought by appellee, Allard, against Seimon and the Excelsior Stone Company. The declaration contained counts in the cepit and detinet. The defendants pleaded non cepit, non detinet, property of the goods in Philip H. Decker, and fourthly, the recovery of a judgment by the Excelsior Stone Company against Decker for $181.38 and costs, the seizure by Seimon, as constable, of the goods upon an execution issued on said judgment, with averments that said goods were the property of Decker, and not the property of the plaintiff; and that Seimon was a constable de jure, and acting as such at the time of the levy. Issues were taken on these several pleas, and a trial by jury was had thereon, resulting in a verdict for the plaintiff, with damages assessed at $32.50, on which the plaintiff had judgment, and the defendants appealed to this court.
    Messrs. Matthews & Decker, for appellants;
    that fraud in the plaintiff’s claim of title, in replevin, need not be pleaded specially, cited Rogers v. Arnold, 12 Wendell, 33; Anderson v. Talcott, 1 Gilm. 371; Van Namee v. Bradley, 69 Ill. 303; Gardiner v. Otis, 13 Wis. 450; Harrison v. Jaquess, 29 Ind. 208; Boies v. Henney, 32 Ill. 130.
    Mr. A. A. Exline, for appellee.
   Wilson, P. J.

It appears from the bill of exceptions that the defendants in support of their fourth plea, put in evidence the judgment against Decker set out in the plea, the execution issued thereon and the levy of the same upon the goods in question by Seimon as constable, together with proof of his official character. They then offered to prove that the goods were in fact the property of Decker, but that by collusion between him and the plaintiff, Allard, who claimed to have purchased the same from Decker, the title was fraudulently transferred by Decker to Allard to cover it up and prevent its being seized by Decker’s creditors. This evidence the court refused to receive, on the ground that it was not admissible under the pleadings; that to entitle the defendants to show that a sham sale of the goods had been made by Decker to Allard, it should have been specially set forth by plea, to which ruling the defendants excepted, and now assign the same for error.

In this ruling the court erred. The plea contained all the necessary averments to constitute a good plea of justification under the facts as alleged. By the introduction in evidence of the judgment and execution, appellants were placed in a position, as judgment creditors of Decker, to attack the title of a fraudulent vendee of the latter, and by no rule of pleading applicable to actions of replevin were they required to disclose in advance the grounds of their attack.

The precise question arose in Strohm v. Hayes, 70 Ill. 41, where the plaintiff claimed title by virtue of a chattel mortgage, and the defendant was permitted to go into proof of fraud in the execution of the mortgage without any plea charging fraud. The Supreme Court said, “ the party attacking in such a case is not required by plea to disclose the ground of the attack. He who produces a mortgage in evidence is presumed to be prepared to show it was made in good faith, and for an honest purpose, and valid in other respects.”

The principle decided was identical with that involved in the present case. We have been referred by counsel to no case, nor have we been able to find any after an extended ■search, holding a different rule.

For the error of the court above indicated the judgment is reversed and cause remanded for a new trial.

Beversed and remanded.


author: Bailey, J.

text:
    Jane A. Brooks v. The People, use, etc.
    1. Guardian’s bond—Judgment os court conclusive upon sureties.—The judgment of the comity court,, finding the amount due from a guardian to his ward, in the absence of any allegation of fraud or collusion, is conclusive upon the sureties on the guardian's bond and their privies and legal representatives.

      2. What constitutes sufficient delivery.—Delivery is essential to make a deed effective, and this delivery must be in the lifetime of the grantor. After the writing has been signed and sealed, any acts or words which clearly manifest an intention to consummate and complete it, and to part absolutely and unconditionally with it and all control over it, are sufficient to give legal existence to it as a deed, and constitute a sufficient delivery.
    3. Delivery of bond.—A guardian’s bond signed by one surety was presented to the court at the same time with the minor’s petition nominating such person as guardian; the court, being of the opinion that said surety was not sufficient, handed the bond hack to the obligors. Later the signatures of two additional sureties were obtained. Meanwhile no action upon the minor’s nomination having been taken by the court, the minor’s attorney, with said sureties, appeared in court, and the sureties were pronounced satisfactory, the judge merely saying, “Thatis all right,” and the attorney, without saying a word, handed the bond to the judge and went away. The evidence tended to show that thereupon, at the request of the sureties, the judge handed the bond to them and they took it away to get another to sign as surety. They were unsuccessful in this, and nothing further was shown as to the whereabouts of the bond. Soon after, before the guardian’s appointment, one of these sureties died. Held, not a delivery of the bond in his lifetime.
    Error to the Circuit Court of Cook county ; the Hon. William H. Barnum, Judge, presiding.
    Opinion filed January 6, 1885.
    This was an action of debt on a guardian’s bond, brought by the people of the State of Illinois, for the use of Stanley B. Sexton, against Jane A. Brooks, the widow and heir at law of Joseph P. Brooks, deceased, one of the sureties on the bond. The bond in suit was one given by Henry M. Curtis, as guardian of said Sexton, and was in tbe penal sum of $120,-000, and bore date January 3, 1873, and was signed by George E. Bissell, Henry E Seelye and said Brooks, as sureties. Sexton, at tbe date of the bond, was between nineteen and twenty years of age, be having attained the age of nineteen years on the twenty-third day of August, 1872.
    It appears that on the 3d day of January, 1873, the day the bond bears date, an attorney appeared in the County Court of Cook county for said Sexton, and presented Sexton’s petition for the appointment of said Curtis as his guardian, and also a guardian’s bond signed by Bissell alone as surety. The evidence tends to show that Bissell appeared at the same time and justified as surety in the sum of $40,000; that the county judge thereupon stated that said surety would not be sufficient; that the attorney handed the bond to the judge who placed upon it as a memorandum the figures $40,000; that the judge then returned the bond to the attorney, who handed it to Curtis to procure additional sureties, It appears that the clerk of the court placed a file mark on both the petition and bond, which purport to show that said papers were both filed on said 3d day of January, 1873, but wdien and under what circumstances said file marks were placed thereon, does not otherwise clearly appear.
    About one or two weeks afterward, Brooks and Seelye having in the meantime also signed the bond, the attorney again appeared in court, accompanied by Brooks and Seelye, and their justification as sureties being satisfactory, the judge said, “ That is all right,” and the attorney handed the bond to the judge. Seelye, one of the sureties, testifies, and his testimony on this point is nowhere contradicted, that wdien the bond was handed to the judge, according to his recollection, either Brooks or the witness suggested that they get another signature on it, to divide the responsibility with them; that the person to whom they proposed to apply for that purpose was one C. B. Nelson; that the judge, on their making their purpose in this respect known to him, passed the bond down to them and that they took it away; that Witness shortly afterward applied to Nelson to sign the bond with them, which he declined doing. What was then done with the bond, the witness does not recollect. Nothing further is shown as to its whereabouts, and nothing further seems to have been done in the matter of the appointment of said guardian, until the 18th day of July, 1873. In the meantime, on the 28th day of June, 1873, Brooks died.
    The only order appearing of record in the county court in relation to the appointment of said guardian, or to the presentation, delivery or approval of said bond, was entered July 18, 1873. That order is as follows:
    “ This day comes Stanley B. Sexton, a minor, aged nineteen years, on the 2oth day of August, 1872, a resident of the county of Cook, in the State of Illinois, and presents and files his petition duly verified, praying that Henry M. Curtis, of said county, may be appointed guardian of his estate.
    “ And it appearing to the court, from all the allegations contained in said petition and from other evidence, that the said Stanley B. Sexton is a minor over fourteen years of age; that he is a resident of said Cook county, and has no father or mother living, or other legal guardian residing in this State, and has an estate consisting of real estate in Chicago, and personal property within said county7 of Cook, which is estimated to be worth about $60,000, and the said Henry AT. Curtis also came and consented to act as such guardian if appointed.
    “ And it further appearing that the said Henry AL Curtis is a friend of said minor, and a suitable person to have the custody, nurture and tuition of the said minor, and the care and management of his estate, and no person having appeared to oppose the appointment of a guardian to said minor, or to show cause why the prayer of said petition should not be allowed, it is therefore ordered that the prayer of said petition be granted: Provided, the said Henry At. Curtis first file in this court his bond in the penal sum of one hundred and twenty thousand dollars, conditioned and payable as required by law, and with at least two sufficient sureties, to be approved by this court.
    “ Pursuant to the foregoing order, now comes the said Henry AL Curtis and presents his said bond, in the penal sum of one hundred and twenty thousand dollars, signed and sealed by himself as principal, and by George F. Bissell, J. P-Brooks and II. E. Seelye, as sureties, and said bond being-read and considered by the court, and appearing to be in due form of law, and the court being now sufficiently advised concerning the security thereon, and the same being deemed sufficient and satisfactory, it is thereupon ordered that the said bond be and it is hereby approved, and that the clerk file and record the same, and that the said Henry AT. Curtis be and he is hereby appointed guardian as aforesaid, and authorized to have the custody, nurture and tuition of the said minor, and the care and management of his estate, and that the clerk issue letters of guardianship accordingly under the seal of this court aud record the same.”
    The final account of said Curtis as the guardian of said Sexton seems to have been filed on the 22d day of May, 1876, but there is no evidence that there was any action taken upon it at that time by the court, but by an order entered March 4, 1880, said account was disapproved and ordered to be restated. The account as re-stated showed a balance in the hands of the guardian, due to his ward, of $55,141.10. This account was approved, and the guardian was ordered to pay said sum over to his ward, within thirty days from the date of said order. Ho part of said money has been paid to said ward.
    Brooks died without issue, leaving a last will and testament, and leaving surviving him the defendant, his widow. The defendant duly renounced under said will, and took as her dower and by descent from her husband, all his personal estate after the payment of debts and the expenses of administration, the same amounting to nearly $300,000. Ho claim was ever presented by Sexton against the estate of Brooks in the county court, and on the 16th day of Hovember, 1875, an order was entered declaring the estate settled aud discharging the executors.
    The trial, which was before the court and a jury, resulted in a verdict and judgment in favor of the plaintiff for $120,-000 debt, and $68,044.11 damages. The remaining facts are sufficiently stated in the opinion of the court.
    Mr. Charles H. Wood and Mr. W. H. Swift, for plaintiff in error.
    Messrs. Svvett, Haskell & Gbosscup, for defendant in error;
    that the bond was a valid obligation upon the obligors, cited Green v. Wardwell, 17 Ill. 278; Broome v. United States, 15 How. 143; Moore v. State, 9 Mo. 330; People v. Johr, 22 Mich. 461.

      The obligation and validity of the bond did not begin with the date of its approval by the county court. It was a valid and obligatory bond from the time of its delivery and acceptance, though no such approval had ever been formally made: Broome v. United States, 15 How. 143; Green v. Wardwell, 17 Ill. 278; Town of Ashkum v. Lake, 12 Bradwell, 25; Jones v. State, 7 Mo. 81.
    Acceptance and approval are not synonymous terms in law: 1 Bonvier’s Law Dictionary, 47; 2 Parsons on Contracts, 221.
    The delivery and acceptance of a bond is a question of fact properly submitted to the iury: Lindsay v. Lindsay, 11 Vt. 621; 8 Watts (Pa.), 9.
    As to acceptance of a bond: Reefer v. Walker, 39 Ill. 413; Frizzle v. Beach, 1 Dana’s R. (Ky.) 211; Masterson v. Cheek, 23 Ill. 72; Bryan v. Wash, 2 Gilm. 557; Willard v. Same, 4 Mass. 447; Hatch v. Same, 9 Mass. 307; Church v. Gilman, 15 Wend. 656.
    The fact that all the acts necessary to the appointment of the guardian were not yet completed at the time of the delivery of the bond, does not make it any the less a valid and binding obligation upon the obligors from the date of its delivery: Broome v. U. S., 15 How. 143; Perryman’s Case, 5 Coke, 84-6; Graham v. Same, 1 Vesey, Jr., 272; Froset v. Walch, 51 Year Book, 27 Hen. VI; 13 Viner, Fait’s Plea, 7, p. 25; Foster v. Mansfield, 3 Met. 412; O’Kelly v. Same, 8 Met. 436; Exton v. Scott, 6 Sim. 31.
    The obligors are estopped by the recitals of the bond from denying that the principal obligor was such guardian: Green v. Wardwell, 17 Ill. 278; Allbee v. People, 22 Ill. 533; Otto v. Jackson, 35 Ill. 359; Shaw v. Havekluft, 21 Ill. 127; Shroyer v, Richmond, 16 Ohio, 455; Charles v. Haskins, 14 Ia. 269; Fredge v. State, 3 Gill & Johnson, 103.
    As to revocation of bond: Knotts v. Butler, 10 Rich. Eq, S. C. 143; Fennell v. Maguire, 21 Up. Canada, C. P. R. 134: Bradburry v. Morgan, 1 H. & C. 249; Hassell v. Long, 2 M. & S. 370; Calver v. Jordan, 7 B. & C. 809; Hough v. Warr, 1 C. & P. 151.
    As to the finding of the county court as to amount due being conclusive upon sureties: Ralston v. Wood, 15 Ill. 159; Ammons v. People, 11 Ill. 6; Jessup v. Same, 102 Ill. 480; Housh v. People, 66 Ill. 178; Ream v. Lynch, 7 Bradwell, 161.
   Bailey, J.

The defendant has assigned for error, among other things, the decision of the circuit court overruling a demurrer to the second replication to the defendant’s eighth plea. Said plea alleges, in substance, that Sexton attained his majority August 25, 1874, and that Curtis, his guardian, thereupon entered into a copartnership with him in the oyster and fish business, which business was afterward carried on by-said Curtis and Sexton, as copartners, until the fall of 1875; that during said copartnership, and after said Sexton had attained his majority, and with his assent, a large portion of his estate in the hands of Curtis, his guardian, to wit, $60,000, was used in said business, and by reverses therein became wholly lost, and that the sums so used and lost greatly exceed the sums due said Sexton from said Curtis, as his guardian, at the commencement of this suit or since.

The second replication to this plea alleges, in substance, that on the 22d day of May, 1876, said Curtis, as guardian, tiled his final account in the County Court of Cook county, and that at the February term, 1880, of said court, said account came before said court for consideration and approval, and that said Sexton impleaded said Curtis upon the correctness of said account, and that such proceedings were thereupon had thereon, that it was found by the court that there was due from said Curtis, as guardian, on his account, to said Sexton, the sum of $55,141.10, which judgment still remains in full force.

The question raised by the demurrer is, whether the judgment of the county court, finding the amount due from the guardian to his ward, on final settlement, is conclusive upon the sureties on the guardian’s bond and their legal representatives and privies, or is onl y prima facie evidence, as to them, of the amount due. On this point the law seems to be too well settled to admit of serious controversy.

In Ammons v. The People, 11 Ill. 6, in a suit against a surety on a guardian’s bond, it was held, that an adjudication by the probate court, ordering a guardian to pay a certain sum of money over to his successor, was obligatory upon his sureties, and could be impeached only for fraud or collusion, it being an order of the court which, by the very terms of the bond, the sureties undertook that the guardian should comply with. In Ralston v. Wood, 15 Ill. 159, the same rule was applied in the case of an administrator’s bond, and in Housh v. The People, 66 Ill. 178, to the bond of an executor. See, also, Freeman on Judgments, § 180, where the same rule is laid down, and the leading authorities cited.

In the absence, then, of any allegation of fraud.or collusion, the order of the county court mus.t be held to be conclusive upon the sureties on the guardian’s bond, and being conclusive upon them, it must also, upon well recognized principles of law, be held to be conclusive upon their privies and legal representatives.

But the principal question in the case, and the one to which our attention has been mainly directed, is, whether the evidence shows a delivery of the guardian’s bond prior to the death of Brooks.

If there was no delivery before his death, it is clear that there could be none afterward, which would render the bond obligatory upon him or his legal representatives. As said in. Huey v. Huey, 65 Mo. 689, ‘‘delivery is essential to make a deed effective and this delivery must be in the lifetime of the grantor.” So, in Jackson v. Leek, 12 Wend 106, it is held, that a deed of land takes effect from its delivery,.and although signed, sealed and acknowledged, if it be not actually delivered by the grantor during his life, nothing passes by it,, delivery after the death of the grantor being no delivery. To the same effect are the cases of Jackson v. Phipps, 12 John. 418; Carey v. Dennis, 13 Md. 1; Cook v. Brown, 34 N. H. 460; Miller v. Physick, 24 Ark. 244; Jackson v. Rowland, 6 Wend. 666; and Baldwin v. Maultsby, 5 Iredell, 505.

Was there a delivery of the bond in the lifetime of Brooks? There is no precise or set form in which a delivery must be-made. A deed may be delivered by words without acts, or by acts without words, or by both acts and words. Shep. Touch. 58. After the writing has been signed and sealed, any acts or words which clearly manifest an intention to consummate and complete it, and to part absolutely and unconditionally with it and all control over it, are sufficient to give legal existence to it as a deed, and constitute a sufficient delivery. The Supreme Court, in Bryan v. Wash, 2 Gilm. 557, Gunnell v. Cockerill, 79 Ill. 79, and Byars v. Spencer, 101 Id. 429, has defined the requisites of a valid delivery of a deed in substantially the same language we have here employed, and the same rule is fully sustained by all the authorities. Ruckman v. Ruckman, 32 N. J. Eq. 259; Cuok v. Brown, 34 N. H. 460; Prutsman v. Baker, 30 Wis. 644; Yonnge v. Gilbeau, 3 Wal. 636; Folly v. Vantuyl, 4 Halst. 193; Thatcher v. St. Andrews Church, 37 Mich. 264; Johnson v. Farley, 45, N. H. 505; Brittain v. Work, 13 Neb. 347; Huey v. Huey, 65 Mo. 689; Crawford v. Bertholf, Saxt. 458; Cannon v. Cannon, 11 C. E. Green, 316; Farlee v. Farlee, 1 Zabr. 279; Duer v. James, 42 Md. 492; 3 Washb. on Real Prop. 282.

Applying the foregoing rule to the evidence before us, when must the bond in question be deemed to have been delivered ? Certainly not on the 3d day of January, 1873, when it was first presented to the judge of the county court, for at that time it had not been signed by either Brooks or Seelye, and the only object of presenting!! to the judge seems to have been to ascertain, provisionally, whether the surety who had then signed would be deemed sufficient. It was handed to the judge after he had expressed the opinion that said surety was not sufficien t, for the mere purpose of enabling him to place upon it, for future reference, a memorandum of the amount in which said surety had justified, and it was then returned to the obligors. It is apparent, moreover, that nothing done at that time could have any bearing upon the rights or obligations of Brooks, as he was not then a party to the instrument.

A week or two later, after the signatures of Brooks and Seelye had been obtained, the bond was again presented to the county judge, and the decision of the case must depend upon the legal effect to be given to what was said and done on that occasion. It should be remembered that at that time Sexton, the minor, had filed his petition, selecting and nominating Curtis for his guardian, but no action had been taken by the court approving or disapproving of such nomination, nor was any such action taken or a guardian appointed by the court until the 18th day of July following. While the proceeding was in this situation, Sexton’s attorney appeared in court, accompanied by the two additional sureties, and the sureties being examined were pronounced satisfactory, the judge announcing his decision in relation thereto by merely saying, “That is all right.” Thereupon the attorney, without saying a word, handed the bond to the judge and went away. As to what subseque. tly became of the bond, he, as he testifies, has no knowledge.

Here certainly were no toords indicating an intention to part absolutely and unconditionally with the bond and all control over it, and the delivery, if made at all, was accomplished by the mere act of handing the bond to the judge unaccompanied by any words manifesting the obligor’s intention.

It may well be doubted whether at that time the county judge had any legal authority to accept a delivery of the bond. The statute requires the county court to take a bond of the guardian appointed by it, and it would seem from the language of the statute, that neither the duty nor the power to take a bond arises until the appointment has been made. Here, Curtis had not been appointed guardian and there was no certainty that he ever would be. Before the appointment could be made,the court was required to pass judicially upon his suitableness for the position, and until that had been done and his appointment made or at least determined upon, no bond was due from him. It was, of course, entirely proper for him to prepare his bond and obtain the opinion of the court as to its sufficiency in anticipation of his appointment, but it is, to say the least, doubtful whether the judge, before any authority to require a bond arose, had power to accept the delivery of a bond, so as to give it present legal existence as the bond of the proposed guardian, and his proposed sureties.

But, waiving this point, was the mere act of handing the bond to the judge so clear a manifestation of the intention of the obligors to part absolutely and unconditionally witli it and all control over it, as to constitute in law a delivery? As said in Black v. Shreve, 13 N. J. Eq. 455, “ Mere tradition of a sealed instrument, even to the party in whose favor it is drawn, does not necessarily in all cases make it a deed. A deed complete in form, signed and sealed, may be handed to the party for inspection. If he refuse to return it, and claim that the mere tradition of the paper so executed ivas a legal delivery, he could not hold it. The answer would be that the tradition, although to the party, was not a delivery of the paper as a deed. It was not a final parting with the custody of the paper. A taking under such circumstances Avould be a tortious taking. Trover Avould lie for the paper.” And as said in Steel v. Miller, 40 Iowa, 402, “The question of delivery is always one of intention of the parties. If the deed passes into the hands of the grantee, without intention on the part of the grantor that it shall become opei’ative and be used for the purpose intended, it is not a delivery.”

It Avould not be inconsistent with the facts proved in tins case to assume that the bond Avas banded to the judge to enable him to inspect it, so as to satisfy himself that it Avas in due form and conditioned according to law, or so as to be able to identify it when it should thereafter be presented to him for approval. On the former occasion it was handed to him so that he might place on it a memorandum for future reference, and it would do no violence to the exfidence to assume that on this occasion it Avas handed to him for some similar purpose. Where the evidence is equally consistent with two conflicting hypotheses, it, can not be said to furnish clear proof of either.

In this connection considerable stress is sought to be laid upon the fact that the bond appears to have been filed' by the clerk of the county court; but Ave are unable to perceive how that fact can have any significance, as it appears from the file mark that the paper was filed January 3, 1873, the day it was first presented to the court. The fact that it was filed at that time affords no evidence of its delivery by Brooks or Seelye, as they did not sign it and so could not have delivered it until a week or two afterward.

But however doubtful the question of delivery may otherwise be, it is, in our opinion, set at rest by the testimony of Seelye in relation to the disposition made of the bond at the time. He testifies, and there is no evidence tending in the least to rebut his testimony in this respect, that, according to his recollection, he and Brooks, while in court on the occasion above referred to, concluded to get another surety on the bond to divide the liability with them, and so stated to the judge, and that he immediately handed down to them the bond and that they took it away. Their attempt to obtain another surety seems to have been unsuccessful, but there is no evidence that they returned the bond.to the judge, and the record is silent as to who had custody of it down to July 18, 1873. The act of these two obligors in taking the bond away, and that of the judge in handing it to them and permitting them to retain custody of it, are inconsistent with the hypothesis that said obligors, when they appeared to justify as sureties, intended then and there to part absolutely and unconditionally with the bond and all control over it, and the mere handing of it to the judge by the attorney with no words explaining or giving character to the act, can not, in the light of the disposition thus shown to have been immediately made of the paper, be held to constitute a delivery.

The hypothesis that the bond, instead of being left in court was taken away.by Brooks and Seelye, is corroborated by the recitals in the order of the county court of July 18, 1873. That order recites that Curtis, on receiving his appointment as guardian, came and presented said bond, and that the same being considered by the court, and being deemed sufficient and satisfactory, was approved and ordered to be filed and recorded. It is unnecessary for us to determine whether this record should be given the conclusive effect claimed for it by the counsel for the defendant, but it can not be doubted that, as between the parties thereto and their privies, its recitals furnish evidence of a very cogent nature. This record shows that on said 18th day of July, 1873, the bond was presented to the court by the principal obligor, thus showing, inferentially at least, that at the time of its presentation it was in his possession, and not in the possession of the court.

We are of the opinion then that the evidence fails to show a delivery of the bond in the lifetime of Brooks. In the absence of such delivery it failed to become operative as to him, and therefore can not be enforced against the defendant. It follows that the verdict of the jury is unsupported by the evidence, and that the judgment must, for that reason, be reversed and the cause remanded.

Judgment reversed.


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    International Bank v. Joseph Jones et al.
    Evidence—Amount on deposit.—This case is the same in its main features as the case of Richardson v. International Bank, 11 Brad well, 582, except in the latter case the evidence showed a sufficient deposit to the drawer’s credit to pay the check at the time it was presented. Here the burden is upon the plaintiffs to show that at the time of presenting the check the bank had on deposit to the drawer’s credit a sufficient sum of money to pay the check; and it is not enough to show that the drawer made adequate deposits on the same day, as they may have been made subsequent to the presentment of the check.
    Appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Opinion filed January 6, 1885.
    Messrs. Rosenthal & Pence, for appellant;
    as to appropriations of payments where one partner retires, cited Story on Partnership, § 157; 1 Lindley’s Law of Partnership, 4th Ed. 426; Collyer’s Law of Partnership, 376.
    I. K. Boyeson, for appellees.
   Bailey, J.

This case,-in most of its essential features, is identical with that of Richardson v. The International Bank, 11 Bradwell, 582, and as the facts are quite fully stated in the opinion in that case, it will be unnecessary to repeat them in detail here'. The present suit is brought against the International Bank by Joseph Jones & Sons, to recover the amount of the check mentioned in that case, drawn on the defendant bv John D. Oakford in favor of the plaintiffs.

As our conclusions in the Richardson case have been elaborately reviewed by counsel for the defendant here, we have been disposed to give them a careful reconsideration, but after doing so we are still of the opinion that, upon the facts as presented in that record, the decision was correct.

In one respect, however, the present case differs essentially from the Richardson case. There the evidence showed that the check in suit was presented on the second day of September, at a time when, if the overdraft of the former firm of John "D. Oakford & Co. is not to be taken into account, there was, beyond question, a sufficient-amount of money in the bank to the credit of Oakford to pay it. It appears that on the first day of September, Oakford deposited $11,778.58, and that out of that sum the bank, on that day, paid Oakfcrd’s checks to the amount of only $4,630.07, leaving a balance of $7,148.51. As no cheeks were paid after September 1st, there was, of course, a sufficient amount on deposit on the second day of September, to pay the check for $4,830.79, in favor of Richardson.

The check in favor of the plaintiffs was presented for payment September 1st, and we think the fair inference from all the evidence would be, that it was presented at or before two o’clock p. m. On that day Oakford made four deposits, viz.: for the sums of $600, $1,885.25, $4,522.25 and $4,770.79. The first two of these deposits were made prior to 11 o’clock a. m. At that hour the check for $4,442.57, in favor of Washington Butcher’s Sons was certified, and thereby the account was overdrawn to the amount of $1,957.32. The precise time at which the two other deposits were made is not shown, and it does not appear whether they were made before or after the presentment by the plaintiffs of the check in their favor*.

The burden is on the plaintiffs to show that, at the time their check was presented for payment, the bank had on deposit, to the credit of the drawer, a sufficient sum of money to pay it. It is not enough to show that the drawer made adequate deposits on the same day, as they may have been made subsequent to the presentment of the check. The plaintiffs evidence being defective on this material point, the verdict finding the issues for the plaintiffs is unwarranted, and the judgment must therefore be reversed and the cause remanded.

Some misapprehension seems to exist in the mind of the counsel for the plaintiffs as to the scope and effect of our decision in the Richardson case. The question there presented was merely whether, as against a holder of Oak-ford’s individual check, the bank had a right to apply Oak-ford’s individual deposit to the satisfaction of the overdraft of the former firm of John D. Oakford & Oo., or in other words, whether such overdraft was to be taken into account in determining whether Oakford had, on deposit at the bank, a sufficient sum of money to meet the checkin favor of Richardson at the time that check was presented for payment. This question being answered in the negative, we held that the evidence showed a sufficient deposit to Oakford’s credit to pay said check at the time it was presented, and that Richardson was therefore entitled to recover the amount of it from the hank.

We did not hold that the evidence established any agreement or arrangement between Oakford and the bank by which Oakfork was to be permitted to make specific deposits to meet specific checks, but merely an arrangement by which he was to be permitted, in effect, to open a new individual account, with an agreement on his part to make sufficient deposits to keep that account good.

Judgment reversed.


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    E. Hess Malting Co. v. Nathaniel H. Warren et al.
    1. Board on Trade—Rules.—The rules of the Board of Trade, as "between its members, have the force and effect of existing laws, and so far as applicable enter into and form a part of their board contracts.
    2. Chance m rule between time oe contract and delivery.— Where a party on tiie Board of Trade bought new “ No. 2 ” barley to be delivered in September, and between the time of making the Contract and the date of the delivery of the grain the board of commissioners changed the character of the description of No. 2 barley, and the barley tendered was of the latter description. Held, that the buyer was not obliged to accept it; the Contract was governed by the rule in force at the time it Was made,
    Appeal from the Superior Ootirt of Cook county; the Hou. Joseph Cart, Judge, presiding.
    Opinion filed January 6, 1885.

      Mr. Francis Laoknee, Mr. Sidney C. Eastman and Mr. Corydon Beckwith, for appellant;
    cited Benjamin on Sales, 600; Cooley on Constitutional Limitations, 348.
    Mr. Daniel L. Shorey, for appellees;
    cited McPherson v. Gale, 40 Ill. 368.
   Wilson, P. J.

The present case lies within narrow limits. By the agreed statement of facts it appears that on July 27, 1883, appellee sold to appellant 5,000 bushels of new, “ Mo. 2 barley,” at 76% cents per bushel, to be delivered at seller’s option during the month of September following, and to be paid for on delivery. M. II. Warren, who acted in behalf of appellees, and E. Hess, who acted for appellant, were members of the board of trade of'the city of Chicago, and said contract was entered into at said board of trade and was made subject to the rules and customs thereof.

At the time the contract was made the board of trade and warehouse commissioners had adopted a rule, which was then in force, for establishing a standard of grades for the inspection of barley as follows: “ Mo. 2 barley shall be sound, of healthy color, bright or but slightly stained, not plump enough for Mo. 1, reasonably clean, and reasonably free from other grain.” On September 1, 1883, subsequently to the making said contract of sale, the board of railroad and warehouse commissioners adopted the following rule, namely: Mo. 2 barley shall be sound, of healthy color, not plump enough for Mo. 1, and reasonably free from other grain,” omitting the words “ bright or but slightly stained,” which said last rule was in force at the time of the tender and refusal of the barley as hereinafter stated.

On September 13, 1883, appellees tendered to appellant, duly indorsed, warehouse receipts for five thousand bushels of new, Mo. 2 barley, of the crop of 1883, which appellants refused to accept and pay said sum of 76% cents per bushel therefor, the market price at that time being 59% cents per bushel. It is stipulated that the barley tendered was not the quality required by the rules of the board of railroad and warehouse commissioners in force at the time the contract was made, but was of the quality provided for by the rules of said board in force at the time the tender was made.

The only question to be determined is whether its barley called for by the contract was to answer the description provided for by the rule of the board of trade in force at the time the contract was made, or of the rule as subsequently adopted on September first.

The rules of the board of trade, as between the members, have the force and effect of existing laws, and, so far as applicable, enter into and form a part of their board contracts. By the act in relation to railroads and warehouses, chapter 114, Bev. Stat., Sec. 147, the board of railroad and warehouse commissioners are required to establish a proper number and standard of grades for the inspection of grain, and may change the same from time to time upon giving public notice,.as prescribed by the act. In many cases the rules and customs of the board of trade give meaning and effect to contracts which would otherwise be meaningless, and void for uncertainty. The words “ number two ” barley would of themselves furnish no idea as to quality, and they only become significant when supplemented by a definition found in a rule of the board. As the words “number two” can only be interpreted by resorting to a rule of the board defining “number two,” the contract must be construed as though such rule were incorporated in it.

Since in every contract of sale there must be a thing sold which forms the subject of the contract, and since, in the absence of some standard or rule existing at the time of making the contract, the words “number two” would be descriptive of nothing, it would seem to follow that unless the rule of the board of trade in force at the time of making the contract in question is to be applied to it, the contract was void for uncertainty. It fails to describe the thing sold. The parties could have provided, had they so desired, that the inspection of the barley should be made under any rule that might be thereafter established. This they did not do, and we can not assume that such was their intention, in the absence of proof. It does not appear that, at the time of making the contract, any notice of a contemplated change in the rule had been given, nor that any change was contemplated. It is true the barley contracted for was to be of the new crop of 1883, but the only effect of this provision in the contract was to exclude the right on the one hand to tender, and on the other to demand, barley of any other year. It raises no implication of an agreement that the inspection might be made under some new rule. The parties can not be presumed to have anticipated a change in the rule.

It is contended by the learned counsel for appellee that appellant had no right to assume that the rule in force at the time the contract was made would continue in force while the contract was operating, and an analogy is sought to be derived from the law applicable to the fulfillment of a contract by the payment of money. We are unable to perceive the force of the supposed analogy. Money is made by law the standard of value. It can not in any proper legal sense be said to be cheap or dear, though its purchasing power may be greater or less according to the abundance or scarcity of the commodity to be purchased, and hence, in common parlance, it is sometimes said to be cheap or dear. If one sells his house for a hundred dollars, to be paid at a future time, it is in effect as if he were to buy a hundred dollars for future delivery. He knows just what he has bought, and must accept it whether money is plentiful or scarce. But here, if the construction of the contract, as claimed by appellee, be correct, it is wholly uncertain what appellee bought. It depends upon future contingencies not provided for in the contract.

The question in every case of purchase and sale is, what was the thing sold? what did the purchaser buy? When that is ascertained, then, as respects the subject-matter of the contract, the controversy is at an end. Here appellant bought “Ho. 2” barley, deliverable in the month of September. At the time of the purchase Ho. 2 barley, interpreted by the then existing rule of the board of trade, had a definite meaning, namely, barley which, in addition to other specified qualities, was “ bright, or but slightly stained.”

We are of opinion that the contract was governed by this rule. The barley tendered was not of this quality, and appellant was therefore not obliged to accept it.

The judgment against appellant in the court below must he reversed and the cause remanded.

Reversed and remanded.


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    Western Union Telegraph Co. v. Thaddeus Fairbanks et al.
    1. Telegraph companies, provisions by.—Provisions of telegraph companies requiring the presentation of claims for damages within a specified time, and barring all claims not so presented, are valid.
    2. Question op pact as to what is part op the contract.— Whether the printed matter on the blank of a telegraph company on which a message is written and signed by the sender, is a part of the contract or not, is a question of fact to he determined by the circumstances of the case: 60 Ill. 421.
    3. Printed agreement—Evidence aliunde.—Where in the printed portion of the blank there were words expressing an agreement by the sender to the printed conditions, and a request that the message be sent subject thereto. Held, that if evidence aliunde is requisite to show the assent to and adoption by the sender of the form of contract printed on the blank, the same proof is necessary to establish his assent to and adoption as his own of the printed words by which he is made to agree to such proposed contract.
    4. Reasonable rule—Knowledge op sender.—While the rule of a telegraph company printed on the blank, requiring the presentation of claims within thirty days, being reasonable might he binding without the sender’s assent, it would be necessary to show that the rule was brought home to the knowledge of the sender.
    Appeal from the Superior Court of Cook county; the Hon. Sidney Smitit, Judge, presiding.
    Opinion filed January 6, 1885.
    This was an action on the case brought by Thaddeus Fairbanks and others, copartners under the firm name of Fairbanks, Morse & Co., against the Western Hnion Telegraph Company, to recover damages resulting from an erroneous transmission of a telegraphic message sent by the plaintiff’s agent from Sioux Falls, Dakota Territory, to the Michigan Pipe Company, at Bay City, Michigan. It appears that on April 21, 1882, Morton Hull, the plaintiff’s agent, had secured from the penitentiary commissioners at Sioux Falls, Dakota, an order for certain wooden pipe, and with a view to filling the order delivered to the defendant, for transmission, a night or half rate message, in the following words:
    “ Sioux Falls, Dakota, April 21,1882. “To Michigan Pipe Co.,
    “Bay City, Michigan.
    “Send at once five hundred and fifty feet two inch eighty pressure pipe to Dakota Territorial Penitentiary, Sioux Falls, Dakota, care Thomas H. Brown, Sec’y.
    “ Morton Hull. ”
    This message, as the evidence seems to show, was written by Hull on one of the ordinary half rate blanks of the defendant. These blanks are printed in red ink, and are conspicuously headed, “Night message.” And after said heading is printed the following:
    “ The business of telegraphing is subject to errors and delays arising from causes which can not at all times be guarded against, including sometimes negligence of servants and agents whom it is necessary to employ. Errors and delays may be prevented by repetition, for which, during the day, half price extra is charged in addition to the full tariff rates.
    “The Western Union Telegraph Company will receive messages to be sent without repetition during the night, for delivery not earlier than the morning of the next ensuing business day, at reduced rates, but in no case for less than twenty-five cents for a single message, and upon the express condition that the sender will agree that he will not claim damages for errors or delays, or for non-delivery of such messages happening from any cause, beyond a sum equal to ten times the amount paid for transmission, and that no claim for damages shall be valid unless presented in writing within thirty days after sending the message.

      “ Messages will be delivered free within the established free delivery limits of the terminal office. For delivery at a greater distance a special charge will be made to cover the cost of such delivery, the sender hereby guaranteeing payment thereof.
    “The company will be responsible to the limits of its lines only, for messages destined beyond, but will act as the sender’s agent to deliver the message to connecting companies or carriers, if desired, without charge and without liability.” “ Ti-ios. F. Eckert, General Manager,
    “ Fortin Green, President.”
    Following the above and to the left, and on the same line with the blank for the date of the message, are printed these words:
    “ Send the following night message, subject to the above terms, which are hereby agreed to.”
    At the bottom of the blank, in displayed type, are printed the following words:
    “ Read the notice and agreement at the top.”
    The price charged by the defendant for transmitting this message to Bay City was twenty-five cents, one half the usual rate, and this sum Hull seems to have paid. By some means, which the evidence fails to explain, the message, when received at Bay City, had become changed so as to read: “ Send at once five hundred and fifty feet five inch eighty pressure pipe,” etc., and in that form it was delivered to the Michigan Pipe Co. Pipe answering this erroneous description was shipped to Sioux Falls before the discovery of the error, but as it failed to answer the order given by the penitentiary commissioners, it was rejected and returned to the shippers, and this suit is brought to recover the amount of freight paid by the plaintiffs for cariying and returning it.
    It was admitted at the trial that no claim in writing or otherwise was presented to the defendant, by or on behalf of the plaintiffs, for any damage in respect to said message, until some time in February, 1883, and that prior to that date, all the original papers relating to said message, including the original message itself, had been destroyed by the defendant, in pursuance of its rule requiring the destruction of all messages after the expiration of six months from their date.
    The cause was tried before the court below without a jury, and a judgment rendered in favor of the plaintiffs for §135.14 and costs, and from that judgment the defendant has appealed to this court.
    Messrs. Williams & Thompson, for appellant;
    that the telegraph company is not liable, in view of the failure to present a claim within thirty days, cited Southern Ex. Co. v. Caldwell, 21 Wall. 264; U. S. Ex. Co. v. Harris, 51 Ind. 127; Lewis v. Great West. Ry. Co., 5 H. & N. 867; Weir v. Ex. Co., 5 Phila. 355; Southern Ex. Co. v. Hunnicutt, 54 Miss. 566; P. M. & F. Ins. Co. v. Whitehill, 25 Ill. 466; Andes Ins. Co. v. Fish, 71 Ill. 620; Wolf v. W. U. Tel. Co., 62 Pa. St. 83; Young v. W. U. Tel. Co., 65 N. Y. 163; Heiman v. W. U. Tel. Co., 57 Wis. 562; W. U. Tel. Co. v. Jones, 95 Ind. 228.
    The rule to present claims in thirty days is binding without assent, if brought home to the knowledge of the party concerned: West. Trans. Co. v. Newhall, 24 Ill. 466; Oppenheimer v. U. S. Express Co., 69 Ill. 62.
    As to the inference of such knowledge: Oppenheimer v. U. S. Ex. Co., 69 Ill. 62; W. U. Tel. Co. v. Carew, 15 Mich. 525; Heiman v. W. U. Tel. Co., 57 Wis. 562.
    Messrs. Flower, Bemy & Gregory, for appellees;
    cited Tyler v. W. U. Tel. Co., 60 Ill. 421; West. Trans. Co. v. Newhall, 24 Ill. 466; Candee v. W. U. Tel. Co., 34 Wis. 471; Bartlett v. W. U. Tel. Co., 62 Me. 209.
   Bailey, J.

The only question presented by counsel for the appellant in their brief is, whether the failure of the plaintiffs to present their claim for damages within thirty days after the date of the message, erroneously transmitted by the defendant, is not a bar to their action for such damages; and in considering the case we have confined our attention to that single question.

It is well settled that provisions in contracts of telegraph, express, railroad, insurance and other similar companies, requiring the presentation of claims for damages within a specified time, and barring all claims not so presented, contravene no principle of law or public policy, and are valid. The rule on this subject is so fully discussed and illustrated in the decisions cited by counsel for the appellant, that it needs no elaboration here. Whatever may be said of the other stipulations of the contract set up in this case, this provision, if shown to have been assented to by the plaintiffs, is binding on them and must be held to be a bar to their recovery.

The question is, was it assented to by the plaintiffs, or, in other words, is it, under the evidence in this case, to.be held to constitute a part of the contract between the parties?

The rule adopted in this State by the Supreme Court seems to be, that whether the printed matter on the blank of a telegraph company on which a message is written, and signed by the sender, is a part of the contract or not, is a question of fact to be determined by the eirenmsiances of the case. Tyler v. W. U. Tel. Co., 60 Ill. 421. This rule is adopted or borrowed from decisions m the analogous cases of printed stipulations on receipts given to shippers by express and railroad companies, in which it is held that whether the shipper has knowledge of the terms and assents to the restrictions of the receipt, is for the jury to determine as a question of fact upon evidence aliunde, and that all the circumstances attending the giving of the receipt are admissible in evidence to enable the jury to decide that fact.

Apart from the paper itself, the only evidence in the record bearing upon the question of the plaintiff’s assent to the printed stipulations on thé message blank, is to be found in the deposition of the plaintiff’s agent who sent the message. He testifies that when he sent it, he did not notice in the least the printed conditions on the blank «which he used, and did not know what they were. Some effort was made on cross-examination to show that he was in the habit of sending messages over the defendant’s line frequently, using the defendant’s ordinary printed blanks, but as all the questions put to the witness on that subject on cross-examination relate, by their terms, to the date of taking the deposition, which was some two years subsequent to his sending the message in controversy, we are unable to see how the cross-examination furnishes any evidence of his familiarity with the defendant’s blanks at the date of sending the message.

The proof aliunde then is, that when the plaintiff’s agent wrote and sent the message, he did not know what the printed conditions in the blank were, and that said conditions were not brought to his notice so as to fix knowledge of them upon him. It would thus seem that, under the rule adopted in Tyler v. W. U. Tel. Co., the plaintiff’s assent to said conditions is not shown.

It is claimed, however, that the message blank in this case differs in one essential feature from the one considered by the Supreme Court in the Tyler case, viz., that here, in the printed portion of the blank, there are words expressing an agreement by the sender to the printed conditions, and a request that the message be sent subject thereto. The point is by no means free from difficulty, but as we understand the Tyler case, we are constrained to hold that it applies to this portion of the printed blank, the same as to the residue. If evidence aliunde is requisite to show the assent to and adoption by the sender of the form of contract printed on the blank, it is difficult to see why the same proof is not necessary to establish his assent to and adoption as his own of the printed words by which he is made to agree to such proposed contract.

But it is insisted that the defendant’s rule requiring the presentation of claims for damages within thirty days, was reasonable, and as such is binding without the plaintiff’s assent. This proposition might perhaps be admitted, if the evidence showed that the rule was brought home to the knowledge of the plaintiffs or their agent at the .time the message was sent. But there is, as we have seen, no such evidence in the record, and the plaintiffs can not be held to be affected by a rule, however reasonable, of which they had no knowledge.

There being in our opinion no error in the record, the judgment will be affirmed.

Judgment affirmed.


text:
    Levi C. Merrick et al. v. Alvin Hulbert.
    1. Trust deed—Evidence op payment op note.—In a suit to set aside certain releases and to foreclose a deed of trust, an admission by the payee of the notes, while, he held the notes and deed of trust, that a payment had been made to apply on said notes, though made prior to their maturity, is competent evidence of said payment against, his assignee.
    2. Notice—Agreement.—In this case there was an agreement between the trustee and the payee to substitute a mode of payment not provided for in the instrument, and the payee, in case of sale of notes, was to inform his assignee of such arrangement; a payment was made after assignment in accordance with such arrangement but no notice given the assignee. Held, that such payment was ineffectual as against the assignee, and that the trustee had no authority to execute a release of the trust deed.
    Appeal from the Superior Court of Cook county; the Hon. Geoege Gardner, Judge, presiding.
    Opinion filed January 6, 1885.
    This was a suit in equity brought by Alvin Hulbert against Levi C. Merrick and others, to set aside certain releases of a trust deed conveying the west five acres of block 20, section 19, township 39, north of range 14, east of the third principal meridian, in Cook county, and to foreclose said trust deed. It appears that the title to said land was formerly held by one Thomas Settle, in trust for Bobert M. Douglas, of North Carolina, and his brother, Stephen A. Douglas, of Chicago, and that shortly prior to the execution of said trust deed, said Settle conveyed the entire title to said Bobert M. Douglas. On the 20th day of May, 1879, said Bobert M. Douglas, being indebted to Thomas B. Keogh in the sum of $7,000, executed his promissory note for that sum, payable to the order of said Keogh, five years after date, with interest at the rate of ten per cent, per annum, payable annually, and also coupon notes for said several installments of interest, and to secure said notes, said Bobert M. Douglas and wife executed to said Stephen A. Douglas, as trustee, and to Myron A. Decker, his successor in trust, the trust deed in question.

      Keogh seems to have been aware of Stephen A. Douglas’ interest in the land at the time he took the trust deed. Shortly afterward he came to Chicago to place the instrument on record and to obtain Stephen’s consent thereto. In the meantime Robert wrote to his brother in Chicago, explaining the transaction and asking him to allow the deed to go on record, and so when Keogh called, Stephen stated to him the substance of Robert’s letter, but told him that the trust deed would so interfere with a disposition of the land in accordance with an arrangement between himself and Robert, by which they were to sell it in whole or in part, that he could not consent to it. Keogh then informed him that he had already placed the instrument on record. At this Stephen became angry and told Keogh that unless the trust deed was at once removed from the record, he would take the necessary steps to free his interest therefrom. Keogh thereupon urged that that was his brother’s wish, and that it need not interfere with his, Stephen’s, plans, as Robert’s interest was worth more than the incumbrance; that all he wanted was his money, and that if he, Stephen, would allow the trust deed to remain, he, Keogh, would agree that he, Stephen, being the trustee, might release either the whole of the property or a part of it, as he might determine to sell it, on payment to him, or depositing in bank of Robert’s proportionate part, and informing him of such deposit; that he, Keogh, still held the notes, and that if he should sell them, he would do so, subject to this understanding, and arrange with the assignee of the notes for such release. Upon this assurance and agreement, Stephen consented to allow the trust deed to remain of record.
    On or shortly prior to March 17, 1880, said notes and trust deed still being held by Keogh, Stephen A. Douglas received an instrument in writing signed by Keogh, as follows:
    Greenboro, U. C., Feb’y 17, 188— Stephen A Douglas and ) Tmgtees.
    Myron A. Decker j
    Gentlemen—Col. Robert M. Douglas having this day paid to me four thousand dollars on account of the coupon notes secured by deed of trust on real estate in the city of Chicago, hereinafter described, yon are hereby requested and authorized to release to said Robert M. Douglas an undivided half of the west five acres of block number twenty, in section number nineteen, township thirty-nine, north of range fourteen, east of the third principal meridian, and situate, lying and being in the city of Chicago and State of Illinois.
    Thomas B. Keogit.
    On the back of said instrument was indorsed a request signed by Robert M. Douglas, asking said trustees, or either of them, to release from the trust deed the undivided half of said land belonging to Stephen A. Douglas.
    On said 17th day of March, 1880, after the receipt of said paper, Stephen A. Douglas, as trustee, executed and placed on record a release by which, in consideration of one dollar and other good and valuable considerations, the receipt of which was acknowledged, he released from the lien of the trust deed said undivided half of the land.
    Robert then quitclaimed to Stephen the undivided half of the land, and afterward conveyed to him the north half, the latter deed reciting that it was executed in lien of the former one. The interests thus acquired by Stephen were conveyed by him to one Drench, and while the title was thus held by Drench, Stephen executed a second release, which purported to be in lieu of the former one, by which he released said north half from the trust deed. This second release, though dated March 18, 1880, was not recorded until the 3d day of October following. Drench, shortly after the execution of said release, reconveyed the north half of said land back to Stephen A. Douglas.
    The deed of trust and notes, shortly after their execution, were placed by Keogh in the hands of said Myron A. Decker for sa’e, but after ineffectual efforts to negotiate them, the wife of said Decker loaned Keogh $2,500, and the deed of trust and notes were placed in her hands as collateral to such loan.
    About the time of the execution of the first release, Keogh, fol* the purpose of enabling the Douglas brothers to divide the land, paid the loan and said collaterals were thereupon returned to him. In June, 1880, he again placed them in Decker’s hands for sale, representing that nothing had been paid on them, and authorized him to sell them as a first lien on the entire tract for their full amount, The payment of $4,000 claimed to have been made, was not then indorsed on the notes.
    In his attempts to dispose of said securities, Decker offered them to the complainant and represented to him that the property covered by the deed of trust had greatly appreciated in value, and was regarded by Iieogh and Douglas as exorbitant security for the money; and. the complainant, after examining the land and becoming satisfied as to its value, agreed to take all the notes except the first interest note, which •was then overdue, at their face, with accrued interest, with the understanding, however, that he should relinquish an undivided half of the land whenever requested. On these conditions the complainant, on the 12th day of August, 1880, took an assignment of all of said notes, with the exception aforesaid, and paid therefor the sum of $7,080, he being, as lie claims, wholly ignorant at the time of said payment of $4,000, and of the release of March 17, 1880, as well as of the other defenses to the deed of trust now set up by the defendants.
    The bill alleges that, at the time of the purchase, Keogh was the owner of the interest note then past due, and that it was agreed between him and the complainant that said note should, in its participation in the security of the deed of trust, be postponed to the principal note and the other in cerest notes; but the evidence given by the complainant at the hearing showed that nothing whatever was said at the time in relation to said overdue note.
    The entire five acre tract was afterward sold and conveyed to Mrs. Julia M. Jackson, for $7,250, subject to the balance of the incumbrance, the same being stated in the deed to be $4,000, which the grantee also assumed to pay as a part of the purchase money. Stephen A. Douglas, at or about the same time, deposited with the cashier of the Merchants’ National Bank of Chicago the sum of $3,800, in payment of the balance of the amount due on said notes, that being the real balanee of the notes as claimed by the defendants, and notified Iieogh of such deposit, and thereupon, as trustee, he executed and placed on record a release in full of said deed of trust, Mrs. Jackson then conveyed said land to Levi C. Merrick and William H. Morehouse, by a deed with covenants of warranty against all ¡incumbrances, for the sum of $13,000. The last mentioned deed hears date November 8, 1880, hut the evidence tends to show that the foregoing conveyances were consummated at the same time, and that said deeds were in fact delivered November 9, 1880.
    The deed of trust provided that, on failure to pay the principal or interest, or any part thereof, according to the tenor of said notes, the whole indebtedness should become due at-the option of the holder of the notes. The second interest note not being paid at maturity, the complainant elected to declare the whole debt due, and thereupon commenced the present suit. The hearing in the court below was had on the pleadings and proofs, and a decree was rendered declaring said several releases, except the one dated March 17, 1880, to be fraudulent and void, and holding the deed of trust to be a first lien on the undivided half of said land. In computing the amount of said lien, the court disallowed the payment of $4,000 claiined to have been made to Keogh, as well as the amount deposited in the Merchants’ National Bank. The amount found to be due wras $10,059, and for this sum. and costs the decree awarded a sale of the undivided half of said land. From this decree defendants Merrick and Morehouse have -appealed to this court.
    Mr. IIeney Decker and Mr. J. D. Wallace, for appellants;
    that the assignee of a mortgage takes subject to all equities existing between the original parties so far as the security is concerned, cited Olds v. Cummings, 31 Ill. 188; Walker v. Dement, 42 Ill. 272; White v. Sutherland, 64 Ill. 181; Haskell v. Brown, 65 Ill. 29; McIntire v. Yates, 104 Ill. 491.
    Appellants are innocent purchasers and should be protected: McNab v. Young, 81 Ill. 11; Gunnell v. Cockerill, 79 Ill. 79.

      A trust deed and mortgage are substantially the same: Foster v. Strong, 5 Bradwell, 223: Abney v. Austin, 6 Bradwell, 53; Un. Mut. Life Ins. Co. v. White, 106 Ill. 67.
    Messrs. Millard & Smith, for appellee;
    that a trustee can not claim adversely or derive any benefit or deal with the trust property, to the prejudice of the cestui que trust, cited G. C. & S. R. R. Co. v. Kelly, 77 Ill. 434; O'Halloran v. Fitzgerald, 71 Ill. 54; Fast v. McPherson, 98 Ill. 497; Perry on Trusts, par. 195.
    The deposit of money was not a payment under the facts and the law: Wheeler v. Guild, 20 Pick. 545; Davis v. Miller, 14 Gratt. 1; Coffman v. Bank of Ky., 41 Miss. 212; McClelland v. Bartlett, 3 Bradwell, 481; Mayo v. Moore, 28 Ill. 428; Reeves v. Scully, Walker’s Chy. Pr. 248; Dutton v. Ives, 5 Mich. 515; Keohane v. Smith, 97 Ill. 156.
   Bailey, J.

Some question is made as to the sufficiency of the proof of the payment of $4,000 claimed to have been made by Robert M. Douglas to Keogh, February 17, 1880. We think the evidence sufficient to show, prima, facie, that the payment was made as claimed. The evidence relied upon consists, mainly, of Keogh’s admission in the paper of that date, addressed by him to the trustee, authorizing and requesting a release of an undivided one half of the land from the lien of the trust deed. At that time the trust deed and notes were in Keogh’s hands, or if they had not then been redeemed by him from their pledge to Mrs. Decker as security for her loan to him, they were redeemed shortly after, and were returned to him and remained in his possession, or in that of his agent, until sold to the complainant several months afterward. But even while they were in Mrs. Decker’s hands, where they had been deposited as collateral to a loan of onlv $2,500, his interest in them was such that an admission by him of payment was so far an admission against his interest as to be admissible as evidence against an assignee of said papers, who obtained them from him after they had been redeemed and returned to his possession.

The competency of such evidence in a case like this seems to be well settled. Thorp v. Goewey, 85 Ill. 611; Sandifer v. Hoard, 59 Id. 246; Williams v. Judy, 3 Gilm. 282. In some of the cases, it is true, an exception is made in favor of the assignees before maturity of negotiable paper. This exception grows out of the rule exempting such paper, while in the hands of a l>onafid& assignee before maturity, from the operaation of defenses existing between the original parties thereto. It can have no application, however, to suits upon non-negotiable choses in action. The present suit is not upon the notes which are negotiable, but upon the deed of trust, which is not; and we are therefore of the opinion that the admission of payment made by Keogh while he held the notes and deed of trust, though made prior to their maturity, is competent evidence against the complainant in this suit.

Keogh’s admission was, in terms, that Robert M. Douglas, on the 17th day of February, 1880, paid him $4,000 to apply on said notes, and we find no evidence, either in the testimony of the witnesses or in the circumstances proved, which seems to us sufficient to rebut the evidence of payment furnished by such admission.

Are the defendants in this suit in a position to avail themselves of said payment as a defense, pro tanto, to the deed of trust? The doctrine announced in Olds v. Cummings, 31 Ill. 188, and repeatedly reiterated in subsequent cases, that ai. assignee of a mortgage takes the same subject to the defenses in equity existing between mortgagor and mortgagee, is too well settled in this State to admit of controversy. As said in Haskell v. Brown, 65 Ill. 29, “ Where a resort is had to a court of equity to foreclose the mortgage, that court will let in any defense which would have been good against the mortgage in the hands of the mortgagee himself, and this regardless of the fact that the assignee of the note may have purchased it in good faith and before maturity.” This rule imposes no hardship on the complainant, since if he had desired to protect himself against latent equities, he could have inquired of the mortgagor before purchasing, whether there was any reason why the mortgage should not have been paid. The law imposed upon him the duty of making such inquiry, and charges him with knowledge of all such facts as he would in that manner have ascertained.

It is perhaps needless to say, that a deed of trust stands on the same footing in this respect as a mortgage. If Keogh had been complainant, it would unquestionably have been the duty of the court to apply the payment made to him in reduction of the amounts of the deed of trust. The complainant stands in no better position, and, as against him, the defendants should have been given the benefit of such payment. To this extent the decree is erroneous.

But we are of the opinion that the defendants are not entitled, as against the complainant, to an application of the money deposited in the bank by the trustee, as a payment on the deed of trust. There is no pretense that the complainant had any actual notice of such deposit, or of any agreement or arrangement between Keogh and the trustee, by virtue of which it is claimed such deposit was made. It clearly appears that it was not made until several months after the deed of trust and notes had been assigned to the complainant. It was of course then a matter which the complainant could not have ascertained by inquiry of either the maker of the deed of trust or any other party to the instrument at the time he purchased it, for it had not then taken place. Even if it was his duty to inquire of Keogh and the trustee to ascertain the existence of every equitable circumstance affecting the deed of trust, all he could have ascertained upon such inquiry would have been an arrangement between Keogh and the trustee, to which, so far as appears, the maker of the instrument was not a party, by which an attempt was made to substitute a mode of payment not provided for in the instrument itself. That was, in brief, an arrangement by which the trustee was to be allowed at any time to release the whole or any part of the premises, by paying the whole of the money or a portion corresponding to the part released, such payment to be made directly to Keogh, or by depositing the money in a bank and giving notice to him of such deposit. And it was further agreed that, in case Keogh sold the notes, he would do so subject to the same understanding, and arrange with the assignee for such release.

How if this was a valid and binding agreement, enforceable against the complainant as well as against Keogh, a question which we shall not attempt to decide, it was by fair construction an agreement by which, in case of an assignment of the notes, Keogh was to arrange for a substitution of the assignee for himself, so that the payment stipulated for should be made to the assignee, or in case of a deposit of the money in a bank, that the notice of such deposit should be given to the assignee. Ho claim is made that any notice of the deposit was given to the complainant, and therefore, by the very terms of the agreement, the payment was ineffectual, and no authority was obtained therefrom by the trustee to' release the deed of trust.

Hor can it be said that the appellants are to be protected as innocent purchasers of the land. The release of the deed of trust and the conveyance to them were simultaneous acts. The deed of trust was of record so as to charge them with constructive notice up to the very instant of their purchase, and having notice of the existence of the deed of trust, they are chargeable with notice of the complainant’s rights under it.

On this branch of the case we think the court below decided correctly, but for the error in refusing to allow the defendants the benefit of the $4,000 payment to Keogh, the decree will be reversed and the cause remanded for further proceedings.

Decree reversed.