author: Mr. Justice Barnes

text:
    Eli S. Warner et al., Plaintiffs in Error, v. Sophie Wende, Defendant in Error.

    Gen. No. 24,123.
    1. Judgment, § 273

      —when proper to vacate judgment in attachment suit on motion in nature of writ of error coram nobis. An order vacating a judgment on a motion made subsequent to the term of its entry, under section 89 of the Practice Act (J. & A. If 8626), relating to a motion in.the nature of a writ of error coram nobis, was properly entered, where it appeared from affidavits that in the attachment suit in question, the defendant had filed a special appearance within the judgment term stating it was for the sole purpose of moving to quash the writ and release the levy on stated grounds, which, if true, rendered the attachment void; and that the appearance fee was paid and the motion entered and continued, and no entry thereof was made on the court’s docket, and that the papers given to the clerk for filing were not placed in or did not appear in the files; and error in fact was thus shown to have been committed.
    2. Judgment, § 274*—when misprision of clerk of court established. Misprision of the clerk, forming a basis of a motion to set aside a judgment at a term subsequent to its entry, under section 89 of the Practice -Act (J. & A. ft 8626), relating to a motion in the nature of a writ of error coram nobis, was established where it appeared by affidavits that in the attachment suit in question the defendant had filed a special appearance within the judgment term, stating it was for the sole purpose of moving to quash the writ and release the levy on stated grounds, which, if true, rendered the attachment void; and that the appearance fee was paid and the motion entered and continued, and no entry thereof was made on the court’s docket, and that the papers given to the clerk for filing were not placed in or did not appear in the files; and error in fact was thus shown to have been committed. ' ■
    3. Judgment, § 273*—when defendant in attachment suit entitled to benefits of motion in nature of writ of error coram nobis. Misprision of the clerk in failing to enter and continue a motion to quash an attachment, which resulted- in the entry of a judgment against the defendant, without negligence on his part, was an error in fact which did not appear of record, and entitled defendant to the benefits of the motion in the nature of a writ of error coram nobis, provided by section 89 of the Practice Act (J. & A. If 8626), for the vacation .of judgments after the term of their entry.

      4. Judgment, § 272

      —when objection that motion in nature of writ of error coram nobis was not in. writing will not be considered. An objection that the motion in question to vacate a judgment, entered after the term of rendition under section 89 of the Practice Act (J. & A. If 8626), was not in writing as required by the act, was not considered where plaintiff, in urging his objections below, specifically referred to the motion as having been filed, and where the record admitted of the construction that the motion had been filed.
    Error to the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 10, 1919.
    Either & Goff, for plaintiffs in error.
    John B. Fruchtl, for defendant in error.

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

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

   Mr. Justice Barnes

delivered the opinion of the court.

This writ of error brings for review an order vacating a judgment on a motion made at a term subsequent to its entry, based on the claim that such judgment was entered through a mistake of fact caused by the misprision of the clerk. The main question presented is whether the entry of the judgment under the circumstances was error in fact, such as may be corrected by a motion pursuant to section 89 of the Practice Act (J. & A. 8626), or error in law.

The original suit was in attachment, and notice, pursuant to section 22 of the Attachment Act (J. & A. jf 513) requiring defendant to appear at the July 1917 term, was published. Nothing further appeared of record until September 18, 1917, when a default was entered against defendant in error, and on September 27, 1917, judgment against her was entered on the verdict of a jury. On November 1, 1917, defendant in error was given leave to file a motion to vacate the default, verdict and judgment, and the motion was continued to November 5, 1917. On December 10, 1917, on defendant’s motion, the default, verdict and judgment were vacated and set aside, the case reinstated and defendant given leave to plead, and thereafter defendant pleaded the general issue and traversed the facts in the attachment affidavit that the defendant was about to fraudulently conceal, etc., her property so as to hinder or delay her creditors.

Facts not on the face of the record set up in the affidavits in support of the motion to vacate the judgment were that defendant filed a special appearance at the July term, 1917, stating it was for the sole purpose of moving to quash the writ of attachment and release the levy on certain grounds specified therein, which, if true, rendered the attachment invalid; that her appearance fee was paid (the clerk’s receipt for which was later produced); that the motion was made and continued, and that no entry thereof was made on the court’s docket, and that the papers given to the clerk for filing were not placed in or did not appear in the files.

It was said in People v. Noonan, 276 Ill. 430, that a motion under such section must set up and rely on such fact or facts as are unknown to the court and do not appear upon the face of the record, and which, if known, would have precluded the rendition of the judgment. All these elements are present in the case at bar. Had the court known of the pendency of a motion based on grounds that would have defeated the attachment, it unquestionably would not have entered a default, at least without disposing of the motion. But it acted in ignorance of such motion, knowledge of the pendency of which was prevented through misprision of the clerk in not preserving in the files the papers so left and making the proper entries on the docket.

Plaintiffs in error urge that had such papers been on file and such entries been made and the court had proceeded in disregard of them, its action would have been merely an error in law. That may be granted, but such hypothesis furnishes no test of the question before us. Error in that case could have been reviewed from what appeared on the face of the record; but not so where, as here, without defendant in error’s negligence, the court’s judicial determination was in ignorance of facts not appearing on the face of the record, and which, but for the misprision of the clerk, would have been brought to its attention and doubtless have precluded rendition of the judgment. For had the court quashed the attachment writ on the motion, it would have been left without jurisdiction to enter the judgment for want of personal service or general appearance.

Plaintiffs in error contend here that the motion was not in writing, as required to be under section 89. While we think the record indicates otherwise, plaintiffs in error in urging objections below to the sufficiency of the motion specifically referred to the motion as having been filed, and will not, therefore, be heard to contend to the contrary here, unless the record admits of no other construction.

Nor do we think that the further contentions that the affidavits in support of the motion do not sufficiently set forth a meritorious defense, and that defendant did not exercise due diligence in calling up the motion, are well taken. We think the case comes within the purview of section 89 of the Practice Act, and that the court’s action was proper.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Gustave C. Bushman, Appellee, v. Calumet & South Chicago Railway Company, Appellant.
    Gen. No. 24,275.
    1. Cabbiebs, § 438

      —what constitutes contributory negligence on part of passenger crossing behind car from, which he has alighted. Contributory negligence in fact, if not in law, was established where a passenger with impaired hearing, familiar with conditions, alighted at a point 25 feet from a crossing, from the rear platform of a southbound street car while it was still moving, and, having looked north when he boarded the car a number of blocks away from his place of alighting, saw no car less than a half a mile away, did not look again to the north and was struck by a car approaching on the same track, which was from 7 to 30 feet away when he started to cross.
    2. Cabbiebs, § 438*—when passenger crossing behind car after alighting therefrom, must loolo for approaching ear. The time for a passenger, who attempted to pass behind the car from which he had alighted, to use ordinary care to discover whether he was in danger of an approaching car upon the same track, was not when he originally boarded the car but when he was in danger, that is, when he was about to step upon the track.
    3. ' Cabbiebs, § 438*—when passenger crossing behind car after alighting therefrom is guilty of contributory negligence. A passenger who, after alighting from a street car 25 feet north of a crossing, passed behind the car and in front of another car coming on the same track, owed the duty to look before stepping on the track, and his failure to do so was contributory negligence, although he claimed that, upon looking back when he was a number of blocks away, he saw no car within a distance of half a mile, and that before crossing he looked to see whether a car was coming on the farther track, a danger less imminent.
    4. Negligence—doctrine of “last clear chance” as not obtaining-in this State. The “last clear chance” doctrine does not obtain in this State, the rule here being that where the negligence of the injured party contributes in any degree to bring about his injury, he cannot recover unless the conduct of the other party is wilful and wanton.
    5. Cabbiebs, § 438*—when question of priority of right of crossing between alighting passenger and approaching street cos' does not arise. The question of the priority of the right of crossing as between a passenger who had alighted from a car and was attempting to pass behind it, and a car approaching on the same track, did not arise, where the passenger voluntarily got off from his car while it was in motion and 25 feet away from the crossing.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Thomson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Reversed with finding of fact.
    Opinion filed June 10, 1919.
    Busby, Weber & Miller, John E. Kehoe and Arthur J. Donovan, for appellant; John B. Guilliams, of counsel.
    John L. Hopkins, John W. Creekmur and D. J. De Wolpe, for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.

This action is to recover for personal injuries received by appellee, May 21, 1913, about 5 p. m., from being struck by a street car of appellant while he was crossing its track. The controlling facts are undisputed and accord with appellee’s own testimony.

The car was going south on Cottage Grove avenue on the company’s west track approaching what would be 110th street if it crossed said avenue. At that point was a crushed stone walk about 10 feet wide across the avenue, at the east end of which was a gate leading to the Pullman Company’s building and works, where plaintiff had been employed for over 30 years. At that hour of the day the southbound cars ran frequently in order to carry the employees home from the works. Plaintiff alighted from the rear platform of a southbound car, while it was still moving, at a point about 25 feet north of said walk, on the south side of which the cars usually stopped, and with his back towards the north and without his looking northward immediately started across its tracks in a southeasterly direction towards said gate, when he was struck by another southbound car that was from 7 to 30 feet away from him when he stepped between its rails, and between which and himself there was nothing to obstruct his vision. Plaintiff alleged the exercise of ordinary care on his part and was bound to prove it.

Whatever view may be taken of any other question raised on this appeal the circumstances clearly indicate negligence in fact, if not in law. In them we find nothing to excuse his not looking northward before he stepped onto the track. He did not, and could not, rely on his sense of .hearing for it was greatly impaired and had been for many years. In fact he offered no excuse for his failure to look for an approaching car from the north except that when he boarded the car at 103rd street, about a mile farther north, he then looked back, where he could see for about half a mile, and saw no car approaching, an.d that he was looking to avoid a northbound car. The time, however, for the exercise of ordinary care to discover whether he was in danger of an approaching car from the north was not then but when he might be in danger —when he was about to step upon its track. (Roberts v. Chicago City Ry. Co., 262 Ill. 228.) This court has frequently held that a person passing behind one car and in front of another at a street crossing owes the duty to look before stepping on a parallel track, and that failure to do so is contributory negligence. (Ohnesorge v. Chicago City Ry. Co., 177 Ill. App. 134 [approved in 259 Ill. 424]; Burke v. Same, 153 Ill. App. 388; Von Holland v. Same, 148 Ill. App. 320; Brown v. Same, 155 Ill. App. 434; Healy v. Same, 167 Ill. App. 524; Binder v. Same, 175 Ill. App. 503; Casey v. Same, 191 Ill. App. 474.) In each of these cases 1 the judgment was reversed without remanding the cause for a new trial on the ground of contributory negligence or want of ordinary care in the failure to look for the approaching car. While appellee did look southward for any car that might be approaching on the northbound track, he took no precaution to avoid a more imminent danger from one on the southbound track. He could have seen the car had he looked. His duty to look for a southbound car under such circumstances was no less imperative than the duty to look for a northbound car, for he alighted from his car before it had reached the crossing and usual place of stopping, and from familiarity with conditions there knew that a car might be following close to it, especially at that time of the day.

The facts are very similar to those in Ehrenstrom, v. Chicago City Ry. Co., 205 Ill. App. 583, where the court said: “While to step into the path of a moving car is' not negligence per se in law, still it becomes negligence in fact unless some good reason appears to excuse.” We find no such reason in this case. It was no excuse- that he was occupied in looking to see whether a car was coming on the farther track, a danger less imminent, or that when he boarded the car from which he alighted he saw no car following, or that the regular running time for the cars was 15 minutes apart, as he testified, for, as he further testified, “they could not always go on time because there were so many railroad tracks,” and the evidence is undisputed that at that time of the day southbound cars ran frequently.

Nor, as suggested, does any question as to priority of the right of crossing arise, for he had not reached the crossing, but voluntarily got off from a moving car 25 feet north of it. None of the excuses offered by his counsel is availing in law or in fact, and it is apparent from a count in the declaration based upon the doctrine of “the last clear chance”—which does not obtain in this State (West Chicago St. Ry. Co. v. Liderman, 187 Ill. 463; Macon v. Holcomb, 205 Ill. 643; Feitl v. Chicago City Ry. Co., 211 Ill. 279) and on which the jury were erroneously instructed—that they themselves recognized in the facts probable ground for the defense of contributory negligence. The rule in this State is that where the negligence of the injured party contributes in any degree to bring about his injury, he cannot recover unless the conduct of the other party is wilful and wanton. (Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544.) Appellant’s counsel expressly disclaimed wantonness or wilfulness, and ■ a charge thereof in the declaration was withdrawn.' Accordingly the judgment must be reversed with a finding of fact.

Reversed with a finding of fact.

Finding of fact. The court finds as the ultimate facts that Gustave O. Bushman, appellee, was not in the exercise of ordinary care for his own safety at the time of the accident alleged in the declaration, but, on the contrary, was guilty of contributory negligence which was the proximate cause of the accident and his resulting injuries.


text:
    Illinois Trust & Savings Bank, Appellee, v. Northern Bank & Trust Company, Appellant. Corn Exchange National Bank, Garnishee, Louis H. Moore, State Bank Examiner of State of Washington, Interpleading, Appellant.
    Gen. No. 24,427.
    1. Receivers, § 55

      —right of foreign receiver as against attaching creditor of this State. A receiver appointed by a foreign court could not obtain possession of funds in this State, as against an attaching creditor of the insolvent estate, which was a' citizen of this State.
    2. Corporations, § 752*—what is situs in attachment against foreign corporation. -The doctrine in this State is that for the purpose of jurisdiction in attachment suits brought against foreign corporations, the situs is the domicile of the garnishee.
    3. Banks and banking, § 131*—when retention of check not acceptance thereof. A check on a bank of a foreign State, received by a Chicago bank from one of its depositors, was not legally accepted by its mere retention for more than 24 hours, under the Negotiable Instruments Act of the State of Washington (Rem. & Bal. Code see. 3527), providing that where the drawee to whom a bill is delivered for acceptance refuses within 24 hours after such delivery to return the bill accepted or nonaccepted to the holder, he will be deemed to have accepted the same; and such bank was not, under the circumstances, precluded from garnisheeing funds of such foreign bank in this State, upon the insolvency of such bank.
    4. Banks and banking, § 131*—when draft not acceptance of check. Where a Chicago bank received from one ®f its depositors a check on a foreign bank and credited the depositor’s account therewith, and ultimately through its correspondents forwarded the check to a federal reserve bank for collection, and where the latter bank sent it- direct to such foreign bank, and, according to practice, received the foreign bank’s draft on another bank, and where two days before presentation to the drawee, the foreign bank went into liquidation and the draft was not honored, the draft was not regarded as an acceptance of the check under the Negotiable Instru: ments Act of the State of Washington (Rem. & Bal. Code sec. 3522), providing that the acceptance of a bill is the signification by the drawee of his assent to the order of the drawer, and that the acceptanee must be in writing and signed by the drawee, etc., and section 3524, providing that where the acceptance is written on a paper other than the bill itself, it does not bind the acceptor except in favor of the person to whom it is shown and who, on the faith thereof, received the bill for value.
    Appeal from the Municipal Court of Chicago; the Hon. Edmund K. Jabeoki, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed.
    Opinion filed June 10, 1919.
    Rehearing denied June 23, 1919.
    Musgrave, Oppenheim & Lee, for appellants.
    David O. Dunbar and William D. Doggett, for appellee; James O. Hutchins, of counsel,

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

   Mr. Justice Barnes

delivered the opinion of the court.

This was an attachment suit brought by appellee, Illinois Trust & Savings Bank, against appellant, Northern Bank & Trust Company, a corporation in the State of Washington, garnisheeing a checking account the latter bank had with the Com Exchange National Bank of Chicago. The case was tried without a jury. The court sustained the attachment, gave the appellant bank judgment against the garnishee for $1,262.47, assessed appellee’s damages at $115.39 and costs, and ordered them paid out of the moneys to be collected from the garnishee. Louis H. Moore, State Bank Examiner of the State of Washington, interpleaded, claiming title to the account or chose in action. The issue was found against him, and both he and the Northern Bank & Trust Company have appealed.

The claim of appellee arose in this way: One of its customers deposited with it the check of one Matson on appellant bank, which appellee credited to his account and ultimately through its correspondents forwarded to the Federal Reserve Bank of San Francisco for collection. The latter hank sent it, with other items for collection, direct to appellant bank, receiving in return—according to a practice between the two banks—appellant bank’s draft on another bank of Seattle for $4,020.86, covering all the items for collection including the check for $115.39. Two days before the draft was presented to the drawee, appellant bank was taken over by the State Bank Examiner of Washington and went into liquidation, and as a result the draft was not honored.

The statute of the State of Washington under which said examiner took possession of the property and assets of the bank authorized him to collect moneys due it, administer its affairs, do such acts as are necessary to preserve its assets, and required him to proceed under its provisions to liquidate the bank’s affairs. Appellants contend that the State Examiner thus became vested with the title to the account or chose in action in question, and that applying the test whether garnishment would lie—whether an ordinary suit would lie against the garnishee by the judgment debtor (Bartell v. Bauman, 12 Ill. App. 450; Ripley v. People’s Sav. Bank, 18 Ill. App. 430) appellant bank was divested of its right of action against the garnishee. Citing Kelly v. Dolen, 218 Fed. 966, and other cases, appellants urge that the State Bank Examiner, having under such statute acquired legal title to the corporation’s property, stands in a different position from a chancery or court receiver and can sue in a foreign jurisdiction for its benefit, and is the only party that can properly maintain an action for the garnishee’s debt. But the distinction there drawn between a statutory and equitable receiver is not observed in this State, nor generally, as against resident creditors. The doctrine is fully discussed in Rhawn v. Pearce, 110 Ill. 350, and summarized in Smith v. Berz, 125 Ill. App. 122, at p. 131, as follows:

“But neither a voluntary assignee, nor one purely statutory, from a foreign jurisdiction, nor a receiver appointed by a foreign court, can successfully hold property of which 'he has not obtained possession in the jurisdiction appointing him, against attaching creditors of the insolvent estate who are citizens of Illinois.”

So far as the situs of the debt may affect the question, the doctrine of this State is that for the purpose of jurisdiction in attachment suits brought against foreign corporations the situs is the domicile of the garnishee. (Lancashire Ins. Co. v. Corbetts, 165 Ill. 592, 596; Pomeroy v. Rand, McNally & Co., 157 Ill. 176.) Hence we think attachment would he under the decisions of this State if appellee has a cause of action against appellant bank. Whether it has depends entirely, as we think, on whether there was acceptance of the check within the meaning of the Negotiable Instruments Act of the State of Washington, whose pertinent provisions on the subject are the same as those of the Uniform Negotiable Instruments Act. (See Remington & Ballinger Ann. Code for the State of Washington, vol. 2, title 19, secs. 3522, 3524, 3527, 3575 and 3579.) These sections are as follows:

“Sec. 3522. The acceptance of a bill is the signification by the drawee of his assent to the order of the drawer. The acceptance must be in writing and signed by the drawee. It must not express that the drawee will perform his promise by any other means than the payment of money. ’ ’

“Sec. 3524. Where an acceptance is written on a paper other than the bill itself, it does not bind the acceptor except in favor of the person to whom it is shown and who, on the faith thereof, receives the bill for value.”

“Sec. 3527. Where a drawee to whom a bill is delivered for acceptance destroys the same, or refuses within 24 hours after such delivery, or within such other period as the holder may allow, to return the bill accepted or nonaccepted to the holder, he will be deemed to have accepted the same.”

“Sec. 3575. A check is a hill of exchange drawn on a bank, payable on demand. Except as herein otherwise provided, the provisions of this act applicable to a bill of exchange,» payable on demand, apply to a check.”

“Sec. 3579. A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder unless and until it accepts or certifies the check.”

Appellee contends that appellant bank legally accepted the check under both section 3522 and section . 3527, under the former by said draft, under the latter by retention of the check beyond the period of 24 hours. Against the latter position appellants cite Westberg v. Chicago Lumber & Coal Co., 117 Wis. 589, and Matteson v. Moulton, 79 N. Y. 627, which, construing the identical language in the New York statute (from which this provision of the Negotiable Instruments Act was taken), held that the “refusal” referred to meant an affirmative act, and that a mere //omission to return when there was no demand was "not a “refusal” within the meaning of the statute. Wisner v. First Nat. Bank of Gallitzin, 220 Pa. 21, and State Bank v. Weiss, 46 N. Y. Misc. 93, 91 N. Y. Supp. 276, are to the contrary. But a later cas.e of the Appellate Division of the New York Supreme Court, Foley v. New York Sav. Bank, 79 N. Y. Misc. 220, 139 N. Y. Supp. 915, seems to be in conflict with the Weiss case, supra, decided by that court, and after the decision in the Wisner case, supra, the legislature of Pennsylvania passed an act which made the law of that State conform to the ruling in the Matteson case, supra, which many text-writers regard as the better reasoning. (Norton on Bills & Notes-, 4th Ed., p. 137, note 68; Brannan’s Negotiable Instruments Law Annotated, pp. 135,136; Crawford’s Annotated Negotiable Instruments [1916], p. 222; Huifcut on Negotiable Instruments, p. 617; Bays on Negotiable Instruments, p. 76. See also as bearing on the subject, Hall v. Flanders, 83 Me. 242; Overman v. Hoboken City Bank, 31 N. J. L. 563.)

Referring to the Weiss and Wisner cases, supra, Brannan says in his work: “ It is submitted that these decisions are erroneous, section 137” (being the saíne as section 3527, supra) ¡^[having no application to a check that was not presented for acceptance or certification but for payment.”( (P. 136.) We are disposed to hold in accordance with these authorities that the mere retention of the check by appellant bank for more than 24 hours did not of itself constitute acceptance.

Nor can we regard the draft as an acceptance of the check. If so, it was because it was “written on a paper other than the bill itself.” But in such a case, according to section 3524, “it does not bind the acceptor except in favor of the person to whom it is shown and who, on the faith thereof, received the bill for value. ”3 Even if it may be said that the draft was “shown” to appellee by sending it to its collection agent, yet appellee cannot be said to have received the bill or check on the faith of the writing or draft for value. It even disclaims that the draft was accepted in payment, contending that its agent had no authority to accept it as such.

It is also urged that as the appellant bank not only retains such check but has canceled it and charged the same on its books to the account of Matson, who drew it, it must be deemed to have accepted the check and is estopped from claiming otherwise. Plausible as that may be, it is not such an acceptance as contemplated under the Washington Code and Negotiable Instruments Act, which must not only be in writing and signed by the drawee, but when the writing is on another paper, to be binding on the drawee, must come within the exception of section 3524, already discussed.

Other features of the ease argued need not be considered if, as we conclude on the undisputed facts, there was no legal acceptance, - within the meaning of the Washington Negotiable Instruments Act, of the check by appellant bank, and hence no cause of action against it in appellee. The motion in arrest of judgment should have been granted.

Reversed.


text:
    Charles F. Molander, Appellant, v. Lillian Anderson, known as Lillian Holmberg, Individually and as Executrix, Appellee.
    Gen. No. 24,504.
    1. Wills, § 171

      —when beneficiary-executor not estopped to file bill to set aside codicil. The right to contest a will being a right conferred by statute, and one given to “any person interested,” a beneficiary under a will, who was also an executor, was not, upon the theory that he could not be heard to deny the validity of the codicil while acting as a qualified executor of the will, estopped from filing a bill to set aside a codicil to such will, the effect of which was to diminish his legacy, and neither his right of action nor the right to enforce it was affected by his subsequent resignation and discharge as an executor.
    2. Wills, § 170*—rule that representative of estate is proper party to sue applied. The rule that the representative of the estate is the appropriate party to institute proceedings seeking relief on behalf of the estate, as to a gift, applied so as to sustain the special demurrer to that part of the bill in question, seeking relief on behalf of the estate as to a certain gift.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G-. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed and remanded.
    Opinion filed June 10, 1919.

      Norman K. Anderson and Benjamin Clarke, for appellant.
    Musgrave, Oppenheim & Lee, for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.

Appellant filed his hill of complaint to have" the prohate of a codicil to the last will and testament of Charles F. Holmherg, deceased, set aside and to have the same declared void as obtained by undue influence, and to have defendant directed to pay a gift, claimed by appellee, to the estate of said Holmherg for distribution in accordance with the will. The main difference between the original bill and the amended and supplemental bill is that the latter sets up the resignation and discharge of complainant as executor of such estate after the filing of the original bill which sets up the probate of said will and codicil, and the issuance of letters testamentary to himself and appellee. It also appears that they were the only two beneficiaries named, and that the effect of the codicil was to diminish the legacy to appellant.

The question raised here is whether the court should have sustained a demurrer to the amended and supplemental bill and have dismissed the same for want of equity.

The grounds of the demurrer are (1) that complainant cannot be heard to deny the validity of the codicil while acting as a qualified executor of the will, and hence had no ground of action at the time of filing the bill; and that his right to enforce it is not aided by his subsequent discharge as such executor, as set forth in the amended and supplemental bill; (2) that it does not appear that when complainant qualified as executor he was ignorant of the facts alleged to affect the validity of said codicil; and (3) that being no longer a, personal representative of the estate he cannot maintain an action to recover money for its benefit.

Appellee finds analogy in the first ground to a principle applicable in certain cases forbidding one acting in a trust capacity from denying the validity of the trust while continuing so to act, and'a tenant or trustee from claiming adversely to the title under which he enters land without surrendering possession. The cases cited are not applicable to the facts at bar. The right to contest a will in chancery is a right conferred by statute (Dibble v. Winter, 247 Ill. 243), and is given to “any person interested,” meaning any person “who has a direct, existing pecuniary interest which will be detrimentally affected by the probate of the will.” (Cassem v. Prindle, 258 Ill. 11.) That complainant had such an interest is not questioned, and we are disposed to think the absolute right thus given by the statute is not affected by the mere fact that the interested party bringing the suit is at the same time a qualified.- executor of the will, in the absence of any facts that would support the doctrine of estoppel. None appears in the pleadings demurred to. It does not appear that appellee has been placed in any different position to her injury by reason of appellant’s qualification as executor under the will, or that complainant has placed himself in a position where he could not as an interested party maintain his action under the statute.

The only case bearing directly on this point brought to our attention is Gaither v. Gaither, 23 Ga. 521. In that case Mrs. Gaither made application to set aside the judgment of probate of a will after she had qualified as executrix thereof. It was asserted that she thereby admitted the validity of the will. The court held that the admission was not conclusive against her without showing that the legatees had acted upon the admission, and that their situation became different from what it would have been had Mrs. Gaither never qualified as executrix. And so here. There is nothing to show complainant is estopped from asserting an unqualified right under the statute as an interested party to bring the action, and neither his right of action nor the right to enforce it was affected by his subsequent resignation and discharge as executor.

We think, however, the special demurrer to that part of the bill seeking relief on behalf of the estate as to the gift would properly lie, as a representative of the estate is the appropriate party to institute proceedings for such relief. But such ground for demurrer did not go to the entire right of action. In that respect the bill may be amended. The decree will be reversed for further proceedings consistent with this opinion.

Reversed and remanded.


author: Mr. Justice Matchett Mr. Presiding Justice Matohett

text:
    Joe Toto, Appellee, v. Durand & Kasper Company, Appellant.
    Gen. No. 24,441.
    1. Contracts, § 32

      —necessity of meeting of minds. Although acceptance of an offer may be by acts or conduct as well as by words written or spoken, and although one who with knowledge takes the benefits of a contract is obligated thereby, there must be an apparent, if not actual, meeting of the minds of the parties on a precise and certain proposition. '
    2. Contracts, § 44*—when mmcts of parties to contract of sale to not meet. Where the salesman of a dealer in flour took a written order from plaintiff for 30-0 barrels of flour at a stated price to be delivered in 50-barrel lots, and such writing recited that the contract must be signed by the buyer and salesman, and the blank space for defendant’s acceptance was never signed by it, and where defendant’s manager changed the order to 150 barrels and after 11 days wrote plaintiff acknowledging receipt of the order as given and stated that it could not be accepted, but that an order had been entered for 150 barrels for delivery in 40-barrel lots, the minds of the parties never met upon the proposition of the sale of 300 barrels of flour, and the forwarding of 40 barrels prior to the letter of plaintiff was not such an act as to constitute acceptance of the original order.
    3. Contracts, § 44

      —what constitutes notice that offer to purchase has not been accepted. Where an order for 300 barrels of flour to be delivered in 50-barrel lots was taken by a salesman subject to acceptance by his principal, and where the latter notified the purchaser that an order for only 150 barrels in 40-barrel lots could be accepted, the delivery of a lot of only 40 barrels operated as notice that the greater number of barrels had not been accepted.
    Appeal from the Municipal Court of Chicago; the Hon. F. J. Campbell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed with a finding of fact.
    Opinion filed June 10, 1919.
    Rehearing denied and additional opinion filed July 10, 1919.
    Frederick J. Kasper, for appellant.
    Rice, De Bartelo, Allegretti & Shea, for appellee; Francis B. Allegretti and John F. Shea, of counsel.

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

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

   Mr. Justice Matchett

delivered the opinion of the court.

Appellee, plaintiff below, sued defendant, appellant, for damages for its failure to deliver flour as per contract. The plaintiff is a baker, and defendant a dealer in flour and other provisions. On March 29, 1917, one landolo, a salesman for defendant, took from plaintiff a written order for 300 barrels of Excel flour at the price of $9.25 per barrel, to be delivered 50 barrels every two weeks. The sale was for a special price.

The writing stated: “This contract must be signed by the buyer and salesman, and acceptance confirmed by Durand & Kasper Co. ’ ’ It was signed by the buyer and defendant’s salesman, a blank space appearing thereon for the acceptance of defendant. A copy of this written order was given to the buyer. Iandolo, as was the usual custom with such contracts, took the order to the manager of defendant’s flour department, Mr. Stephan. The manager changed the order, making it for 150 barrels, to be delivered at the rate of 40 barrels every 2 weeks. Stephan testifies that he told Iandolo of the change and the reasons for it, but Iandolo does not remember this conversation. Iandolo testifies, however (and this is not denied by Toto), that he told Toto, at the time of taking the order, that it would not amount to anything until confirmed in writing.'

On April 9th, defendant wrote plaintiff acknowledging receipt of his order as given “which we cannot accept. We have entered an order for you for 150 barrels of Excel Patent Flour * * * to be taken out at the rate of 40 barrels every 2 weeks * * * .” Stephan says the letter was not written sooner, because he was so busy. It was received by Toto about the 12th of April.

On March 30th, and apparently before or at the same time the written order was delivered, Iandolo made out a written memorandum which was by Stephan changed to conform to the amended order as to total amount to be delivered every 2 weeks. On April 2nd, the defendant, without the knowledge of Stephan, delivered to the plaintiff, with other goods, 40 barrels of Excel flour. The total amount of the invoice was $396.90, and plaintiff paid $300 on this account on April 18th. This was after he had received notice that the first order was not accepted.

In the usual course of defendant’s business, the time within which an order for present delivery would be made depended upon the credit department. There was no market for this particular brand of flour; it was a private brand of defendant. On April 6, 1917, the quoted price advanced to $10 per barrel. There was, thereafter, a steady advance. On June 15, 1917, it was quoted at $14 per barrel.

Twenty barrels of this flour were delivered to plaintiff on May 9th, and 30 barrels on the 16th of May. On May 18th, plaintiff with Iandolo, went to the manager and insisted that he was entitled to receive 300 barrels of flour in conformity with the order of March 29th. Thereupon Mr. Stephan notified the shipping clerk to deliver no more flour to him. Plaintiff says he demanded the balance of the flour 2 or 3 days after receiving the letter of April 9th. This was denied by Stephan, and Iandolo says he does not remember any such conversation. Plaintiff had dealt with defend-' ant before. He says that his orders were never before confirmed by writing, but it does not appear that the contracts were similar to this one. Sometimes defendant sent him less than the amount he ordered, but at such times told him it did not have it to send. At the request of plaintiff the court held as a proposition of law that “Accepting an offer in writing to buy 300 barrels of flour at $9.25 per barrel, deliveries to be made every 2 weeks, and in which the parties to the proposed contract are named, and holding said instrument for at least 11 days before giving notice of repudiation to the offeror, together with the further act of delivering 40 barrels of flour to the offeror (this being the only order for flour, given to the offeree by the offeror in existence at the time), is such conduct on the part of the offeree as to show acceptance of the offer.” The court, therefore, found for the plaintiff, and entered judgment for the difference between the quoted and contract price of the flour which was undelivered at the times at which it should have been delivered under the written order.

The ultimate question is whether there was a contract for 300 barrels of flour between the parties. If there was, it must have been through the acceptance by the vendor plaintiff of the order of the vendee of March 29th. The mere delay in the answer could not, under these circumstances, constitute an acceptance, for the uncontradicted evidence is that it was understood that the acceptance would be by writing. We are aware of no case holding that a failure to reply, under these circumstances, would amount to an acceptance. But the plaintiff argues that the delivery of the 40 barrels of flour on April 2nd constituted an acceptance of the contract as made by the salesman. It is, undoubtedly true, that acceptance of an offer may be by acts or conduct, as well as by words written or spoken. One who, with knowledge, takes the benefits of a contract is obligated thereby, but there must be an apparent, if not an actual, meeting of the minds of the parties on a precise and certain proposition.

Leaving out of consideration the question which might arise on the record, as to whether the delivery prior to the letter of April 9th was the result of a mistake, and assuming, which is not proved, that the manager knew of and directed it, we think it was far short of being such an act as would amount to an apparent acceptance of the original order. The original order called for the delivery of the flour in lots of 50 barrels each. This delivery was of o'nly 40 barrels. The plaintiff had a copy of the Original order before him, and is presumed to have known its contents. The delivery of the lesser number of barrels would operate as a notice to him that the contract for the greater number of barrels had not been accepted. True, he was not bound to accept the lesser number, and he could have, if he saw fit so to do, returned the 40 barrels. He did not do this.

Whatever may have been the contractual obligations of the parties, we think it is clear that their minds never met upon the proposition of the sale of 300 barrels of flour. Neither one of the parties was therefore bound by said agreement. As the supposed contract upon which plaintiff sues was never made, he cannot recover thereon.

The judgment will be reversed with a finding of fact.

Reversed with a finding of fact.

Finding of fact. We find as a fact that the written order of plaintiff, appellee, for 300 barrels of Excel flour on which plaintiff sues was never in fact accepted by defendant, appellant.

Additional Opinion on Petition por Rehearing.

Mr. Presiding Justice Matohett

delivered the opinion of the court.

In his petition for rehearing, appellee says the “contract does not call for delivery of said flour in lots of 50 barrels each at any one time, but the said 50 barrels were to be delivered within 2 weeks, without regard to the number of barrels in each delivery * * * .” This is true, but the delivery of 40 barrels of flour was the only delivery made within 2 weeks after the written order was signed by appellee. The delivery therefore as made was neither an-actual nor an apparent acceptance of the written order for 300 barrels of flour.

Rehearing denied.


author: Mr. Justice Matchett

text:
    Maria G. Barretta, Plaintiff in Error, v. Chicago Railways Company, Defendant in Error.
    Gen. No. 24,453.
    1. Coubts, § 150

      —when instruction on degree of proof will not be held erroneous. Although an instruction stating in substance that if plaintiff has not established her case by a preponderance of the evidence, or if the evidence is evenly balanced, or if the jury are in doubt and unable to say on which side is the preponderance, then in either of such cases the verdict should be not guilty, has been criticized by the Appellate Court as misleading, the law as stated in. such instruction having been approved by the Supreme Court, the instruction was approved in the personal injury case in question.
    2. Coubts, § 150*—decision of Supreme Court approving instruction as binding on Appellate Court. Although an instruction may have been criticized by the Appellate Court as misleading, decisions of the Supreme Court approving a like instruction are binding on the Appellate Court.
    3. Appeal and ebbob, § 1698a*—when objection to instruction waived. The objection that an instruction, stating that the mere happening of an accident in and of itself raised no presumption of negligence on the part of the defendant, nor was it evidence in and of itself of the exercise of due care on the part of the plaintiff, was misleading, in a case where plaintiff’s theory was that the injury in question was caused by instrumentalities wholly within the control of defendant carrier, was waived by the giving of an instruction at plaintiff’s request stating that while no person is liable for a pure accident, still the law is, etc., thus adopting in substance the instruction complained of.
    4. Appeal and ebbob, § 1698a*—when-party not in position to complain of instruction. A party is not in position to complain Of an instruction where one in substance the same was given at his own request.
    5. Appeal and ebbob, § 1539*—when giving of instruction not applicable to case mil not be reversible error. Although an instruction stating in substance that if the jury believed from the evidence that so far as defendant was concerned the accident proved was unavoidable, then plaintiff could not recover, was not applicable to the case in question, where plaintiff claimed that she was thrown by the sudden starting of defendant’s car while she was alighting, and defendant claimed that plaintiff fell shortly after she had alighted from the car and without negligence on defendant’s part, and should therefore not have been given, the error was not reversible as the jury were not misled thereby.
    6. Appeal and erbob, § 1539

      —when giving of instruction not applicable to facts will not be reversible error. Although an instruction was not applicable to the facts upon the theory of either party, the giving was not reversible error where the jury were not misled thereby.
    Error to the Superior Court of Cook county; the Hon. Joseph Sabath, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed June 10, 1919.
    Elmer & Cohen, for plaintiff in error.
    Philip Rosenthal and William H. Symmes, for defendant in error; J. R. G-uilliams and Erank L. Kriete, of counsel.

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

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

   Mr. Justice Matchett

delivered the opinion of the court.

This is error by the plaintiff below, who seeks to reverse a judgment for defendant, entered upon the verdict of a jury. The action was in ease.

Plaintiff in her declaration alleged that she became a passenger on one of defendant’s cars, that the car stopped for the purpose of permitting her to alight, that while she was doing so with due care, defendant, without warning, suddenly started up the car, throwing plaintiff to the pavement and severely injuring her.

The testimony of plaintiff and other witnesses produced in her behalf tended to sustain the allegations of the declaration, while that offered for defendant tended to sustain its contention that plaintiff fell and sustained her injury shortly after she alighted from the car and without any negligence on defendant’s part.

The error urged here is that the jury were improperly instructed as to the law. Defendant’s given instruction No. 7 was as follows:

“You are instructed that the plaintiff is required by law to establish her case by a preponderance of the evidence before she can recover. If the plaintiff in this suit has not so established her case, or if the evidence is evenly balanced, or if you are in doubt and unable to say on which side is the preponderance, then, in either of these cases, the verdict should be not guilty.”

This instruction is criticized as tending to mislead the jury. There are decisions of the Appellate Court which seem to so hold: Gehrig v. Chicago & A. Ry. Co., 201 Ill. App. 287; Thiele v. Hetzel, 184 Ill. App. 634; Illinois Steel Co. v. Koshinski, 135 Ill. App. 587.

However, the law as stated in this instruction has been approved by the Supreme Court in Koshinski v. Illinois Steel Co., 231 Ill. 198; Chicago City Ry. Co. v. Nelson, 215 Ill. 436; Vischer v. Northwestern El. R. Co., 256 Ill. 572, and we are bound by these decisions.

The 15th instruction for defendant is also criticized. It told the jury: “That the mere happening of an accident, in and of itself, raises no presumption of negligence on the part of the defendant, nor is it evidence, in and of itself, of the exercise of due care on the part of the plaintiff.” Plaintiff in error claims this instruction is misleading in a case like this, where the theory of the plaintiff was that the injury was caused by instrumentalities wholly within the control of the defendant carrier. New York, C. & St. L. R. Co. v. Blumenthal, 160 Ill. 40; Heineke v. Chicago Rys. Co., 279 Ill. 210. Plaintiff, however, requested and the court instructed the jury, “while no person is liable for a pure accident, still the law of this case is,” etc., thus adopting in substance the instruction. She is, therefore, not in a position to complain. McInturff v. Insurance Co. of North America, 248 Ill. 92.

By the 16th instruction for defendant the jury were told:

“It is not every accident that mates a street railway company liable for damages. If an accident is unavoidable, then no liability is incurred, whether, as a result of it, a person is seriously or slightly injured. And so, if you believe from the evidence in this case, that so far as the defendant is concerned the accident proved was unavoidable, then the plaintiff cannot recover.”

This instruction was not applicable to the facts of the case upon the theory of either of the parties, and the court is of the opinion that it should not have been given. The majority of the court, however, are of the opinion that the jury were not misled thereby, and that the error was therefore harmless.

The judgment will be affirmed.

Affirmed.


author: Mr. Presiding Justice Dever

text:
    Oscar and Bertha Metz, Appellants, v. Oscar Brodfuehrer and Henrietta Newton et al., Appellees.
    Gen. No. 24,604.
    1. Injunction, § 395

      -—wii,en proper to tax costs against complainant on remand by Supreme Oourt. On an appeal from an order allowing a certain sum of money to defendants on the suggestion of damages entered by the defendants after the vacation by the Supreme Court of the injunction order, held that the taxation against the complainants of costs incurred in the Supreme Court, and expenses incurred in taking and reporting testimony before a master in chancery, was proper, where part of the mandate was that the decree be reversed and the cause remanded with directions to dismiss the bill.
    • 2. Injunction, § 393*—when order of Supreme Oourt requires dissolution of injunction. An order of the Supreme Court in a proceeding in which an injunction had been granted, directing the trial court to dismiss the bill, necessarily required that court to dissolve the injunction.
    3. Injunction, § 395

      —when trial court may permit filing of suggestion of damages upon reversal by Supreme Court. Where an injunction had been issued upon the filing of a bond, it was proper for the trial court, upon reversal by the Supreme Court, to permit the filing of suggestion of damages, and to retain jurisdiction of the case until questions arising thereunder were determined.
    4. Appeal and error, § 717*—when evidence should be preserved. A party in whose favor a decree has been entered should preserve the evidence upon which such decree is based, unless the decree is supported by a finding of facts made therein.
    5. Appeal and error, § 1727*—when decision of Supreme Court regarded on subsequent appeal to Appellate Court as final. In an injunction proceeding involving consideration of a freehold interest in land, where the Appellate Court acted upon the face of the bill and was therefore not called upon to determine the merits of the controversy, that court merely had before it the question of the propriety of the order of the trial court granting the injunction, but the truth of the allegations of the bill was properly before the trial and Supreme Courts, and the decision of the latter was final as to complainants’ rights under the bill, and was so considered upon a subsequent appeal to the Appellate Court from an allowance of damages on the dissolution of the injunction.
    6. Injunction, § 395*—what correct rule of damages on vacating of injunction when rents involved. On a suggestion of damages upon vacation of an injunction, where the rental value of certain premises was involved, the correct rule of damages was the reasonable rental value and not the amount of rents actually received by persons not entitled thereto.
    7. Injunction, § 395*—when solicitor’s fees and court costs properly allowed upon suggestion of damages. Solicitor’s fees and court costs incurred by the defendants, in an effort made in good faith to dissolve the injunction in question, were properly allowed upon suggestion of damages.
    Appeal from the Circuit Court of Cook county; the Hon. M. W. Pinckney, Judge, presiding. Heard in this court at the October term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 16, 1919.
    A. L. Williams, for appellants; Walter M. Farmer, of counsel.

      Abram E. Adelman, for appellees. ‘

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

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

   Mr. Presiding Justice Dever

delivered the opinion of the court.

An opinion affirming the judgment of the trial court was filed in this court March 10, 1919, and a petition for a rehearing in the cause was allowed on March 24, 1919. The former opinion was predicated upon the failure of the plaintiffs to file in this court a sufficient abstract of record. The insufficiencies have been supplied.

The appeal is from a decree of the Circuit Court of Cook county assessing damages upon the dissolution of an injunction.

A bill of complaint was filed in that court on August 21, 1915, which inter alia prayed an injunction. On August 23, 1915, the injunction prayed was granted upon the complainants filing an injunction bond. A motion was subsequently made to dissolve the injunction, which motion was denied, and an appeal was prayed from the order denying the motion to the Appellate Court, which court on April 12, 1916, affirmed the order of the Circuit Court. 198 Ill. App. 587.

On July 21, 1916, the Circuit Court entered a decree in confirmance of the conclusions and recommendations of a master in chancery, to whom had been submitted for report certain issues presented by pleadings in the cause, and thereafter the defendants, Oscar Brodfuehrer and Henrietta Newton, brought the cause by writ of error to the Supreme Court of this State, which court reversed the decree entered by the Circuit Court and remanded the cause with directions to dismiss the bill. [282 Ill. 626.]

Upon the filing in the Circuit Court of the mandate of the Supreme Court, the injunction order was vacated ; the bill was dismissed for want of equity, and defendants were given 2 days within which to file suggestions of damages. The defendants filed a joint suggestion of damages, which was thereafter amended, and on June 22, 1918, after a hearing thereon, a decree was entered in favor of the defendants for the sum of $2,053.52.

It is insisted as a prehminary question that the Circuit Court exceeded its authority when it entered an order dissolving the injunction and dismissing the bill and, as a part of said order, taxing costs against complainants in the sum of $473.05, incurred in the Supreme Court, and $177.87, expenses incurred in taking and reporting testimony before a master in chancery. So far as we are able to determine from the record, no objection was made to the order, nor was its entry assigned as error. The present appeal seems to be from the order allowing a certain sum of money to defendants on the suggestions of damages. There is no merit, however, in the contention that the mandate did not confer any authority upon the trial court to allow defendants’ costs in the Supreme Court. The order as to these costs is based upon a fee bill issued out of the office of the clerk of that court.

A part of the mandate of the Supreme Court is as follows:

“The decree of the Circuit Court will be reversed and the cause remanded, with directions to dismiss the bill.”

The order directing the Circuit Court to dismiss the bill necessarily required that court to dissolve the injunction. An injunction having been issued upon the filing óf a bond, it was proper for the trial court to permit the filing of suggestions of damages, and to retain jurisdiction Of the case until questions arising thereunder were determined. Crumbaugh v. Owen, 232 Ill. 191.

The rights of the parties to the litigation were not determined by the Appellate Court. That court had before it the question of the propriety of the order of the Circuit Court granting the injunction. The Appellate Court was not called upon to determine the merits of the controversy, and in its opinion it said:

1 ‘ The motion came on for hearing on the face of the verified amended bill and must therefore be treated as a demurrer to the amended bill and the case decided upon the face of the same.” !

The Appellate Court for the purposes of its decision was required to accept the allegations of the bill as true. The truth of such allegations, however, certain of which involved consideration of a freehold interest in land, was properly before the trial court and the Supreme Court, and the decision of the latter court was final as to complainants’ rights under their bill. :

It is insisted that the decree appealed from fails to recite the evidence upon which its findings are based and that the decree should be reversed because it appears that this evidence was not preserved by defendants. The rule is that a party in whose favor a decree has been entered should preserve the evidence upon which such decree is based, unless the decree is supported by a finding of facts made therein. It is our view that the record before us contains the evidence and findings of fact in support of the decree.

The decree of the court assessing damages in favor of the defendants found that they were compelled to and did lay out various sums of money in the proceedings which finally culminated in a dissolution of the injunction, and it also specifically found the other facts upon which defendants’ claim for damages is based, as, for instance, that the reasonable rental of premises for a certain period of time was and is the sum of $735; that during this period of time the sum of $600 was expended by complainants for taxes, insurance, etc., and that defendant Henrietta Newton should have credit for “the said balance of $135.00 as her damages,” etc.

Specific findings of fact are made in the decree on the ultimate questions of fact upon which the decree was based, and, as stated, these findings of fact are supported by evidence appearing in the record.

We think the rule applied by the trial court, that the defendants were entitled on the suggestion of damages, as one item thereof, to the reasonable rental value of the premises, and not the amount of the rents actually received by persons not entitled thereto, is the correct rule.

The trial court did not err in its findings on other issues of fact. The evidence shows that solicitors’ fees and court costs allowed in the decree were incurred by defendants in an effort made in good faith to dissolve the injunction.

The decree of the Circuit Court will be affirmed.

Affirmed.


text:
    American Surety Company of New York, Appellee, v. S. E. Bliss, Appellant.
    Gen. No. 24,722.
    1. Municipal Court of Chicago, § 19

      —vahen court has no power to vacate judgment after expiration of SO days. Under section 21 of the Municipal Court Act (J. & A. jf 3333), providing that a judgment shall not be vacated after 30 days from the time of its entry, excepting on appeal, etc., or by a petition to said Municipal Court, such court had no power to vacate a judgment after the expiration of 30 days, where the petition, filed 4 months after its entry, alleged that after the suit had been continued 8 times, judgment was entered because plaintiffs counsel had not kept an agreement to the effect that defendant’s counsel would not be required to pay any attention co the case until the sufficiency of an affidavit of merits to be filed had been passed on, and where the answer denied any such agreement.
    2. Municipal Couet of Chicago, § 19*—what petition to vacate judgment must show. Where the motion to set aside a judgment, filed after the expiration of 30 days from the date of its entry, under section 21 of the Municipal Court Act (J. & A. jf 3333), is supported by the petition provided for in said section, it must be affirmatively shown in such petition that the judgment was not only inequitable and the result of fraud, accident or mistake, but also that the judgment was not due to any negligence on the part of the petitioner.
    Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed June 16, 1919.
    Herman Frank, for appellant.
    Oliver B. Opsahl, for appellee; Harry A. Newby, of counsel.

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

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

   Mr. Presiding Justice Dever

delivered the opinion of the court.

This is an appeal from an order of the Municipal Court denying a motion to vacate a judgment entered in that court in favor of the American Surety Company of New York for the sum of $383.25.

In the statement of claim filed by plaintiff it is alleged in substance that the defendant, S. E. Bliss, had agreed to indemnify plaintiff from, among other things, all damages, costs and expenses paid or incurred by plaintiff as the result of its becoming surety on an appeal bond given by defendant on an appeal by him to the Supreme Court of Colorado from a decree entered in the Eleventh Judicial District, Freemont county, Colorado.

It is further alleged that a suit was begun against plaintiff on the appeal bond and that it was required in defending said suit to pay for legal services the sum of $365. The defendant being in default, judgment was entered against him in the Municipal Court on October 3, 1917. On February 6, 1918, he moved to vacate this judgment. The motion to vacate the judgment was denied on May 3, 1918.

The judgment entered against the defendant must be affirmed. The Municipal Court had no jurisdiction to vacate the judgment. No motion was made, as required by the statute, to set aside or vacate the judgment within 30 days of the date of its entry. Section 21 of the Municipal Court Act (J. & A. ft 3333) in part is as follows:

“If no motion to vacate, set aside or modify any such judgment, order or decree shall be entered within 30 days after the entry of such judgment, order or decree, the same shall not be vacated, set aside or modified, excepting on appeal or writ of error, or by a bill in equity, or by a petition to said Municipal Court, setting forth grounds for vacating, setting aside or modifying the same, which would be sufficient to cause the same to be vacated, set aside or modified by a bill in equity: Provided, however, that all errors in fact in the proceedings in such case, which might have been corrected at common law by the writ of error coram nobis may be corrected by motion, or the judgment may be set aside, in the manner provided by law for similar cases in the Circuit Court.”

The Municipal Court had power to vacate its judgment after the expiration of 30 days only upon proof of errors of fact not appearing of record—which would be in' the nature of a writ of error coram nobis at common law—or by petition showing equitable grounds for a vacation of the judgment.

The petition filed by the defendant to vacate the judgment charges, among other things, that after suit was begun it was continued by agreement of counsel eight times and that the judgment entered in the cause was due to the fact that plaintiff’s counsel had not kept an alleged oral agreement entered into with defendant’s counsel to the effect that defendant’s counsel would not be required to pay any attention to the case “if it should be reached on the trial call” and until a proposed amended affidavit of merits should be filed and its sufficiency passed upon by the trial court. In an answer filed to the petition, counsel for plaintiff directly denies that any agreement of the sort charged was entered into as alleged in- the petition.

It is well-settled law that a judgment in a court of law will not be set aside after the time fixed by statute for so doing unless it appears not only that the judgment debtor has a good and meritorious defense, but that the judgment was in no manner caused by any lack of diligence on his part; and this is so even where it affirmatively appears, as we do not think it does here, that the judgment against the defendant is unjust and inequitable. Where the motion to set aside a judgment is supported by a petition, it must be affirmatively shown therein that the judgment was not only inequitable and the result of fraud, accident or mistake, but also that the judgment was not due to any negligence on the part of the petitioner. In the case of Clark v. Ewing, 93 Ill. 572, it was held that a judgment would not be vacated unless it appeared that the judgment was the result of fraud, mistake, accident or surprise, and was entered without laches or negligence on the part of the judgment debtor. Judgments will not usually be set aside upon charges of broken oral agreements, long after the expiration of the period of time for so doing specified in the statute, where such charges are directly denied and where it is apparent that the rights of one complaining thereof might easily have been protected by a written stipulation of counsel.

In Gallay v. Mathis, 195 Ill. App. 170, it was held that a proceeding to vacate a judgment in the Municipal Court is in the nature of a bill of equity.

“It is well settled that equity will not interfere with the enforcement of a judgment at law, unless the judgment debtor could not have availed himself of his defense at law, or was prevented from so doing by the fraud of the opposite party, or by accident or mistake unmixed with fault or negligence on his own part. See 12 Amer. & Eng. Ency. of Law 145, cases cited in note 5.” Bardonski v. Bardonski, 144 Ill. 284.

The trial court refused to admit evidence on the motion to vacate the judgment on the ground that neither the amended affidavit of defense filed in the cause nor the petition to vacate the judgment set forth a sufficient defense to the’plaintiff’s statement of claim. We do not believe this ruling of the trial judge to be erroneous, but whatever reason may have prompted him to deny the motion it was properly denied, for the reason that the petition shows on its face that the defendant was negligent in failing to watch the cause and to be present in court when it was reached for trial and in failing to take any steps to vacate the judgment for at least four terms after its entry.

The order of the Municipal Court will be affirmed.

Affirmed.


author: Me. Presiding Justice Dever

text:
    Midwest Collection Bureau, Appellant, v. Frank R. Greenwald, Appellee.
    Gen. No. 24,958.
    1. Bills ato notes, § 102

      —what does not destroy negotiability of note. Where a writing in the form of a promissory note' forms part of an instrument containing other conditions and stipulations, its character as a negotiable promissory note is not thereby necessarily destroyed.
    2. Bills and notes, § 102*—when instrument not negotiable note. An instrument containing a promise to pay a named party, or to his order, a stated sum in monthly instalments, and underneath in much smaller type numerous provisions relating to a correspondence course, constituted a special contract, and was not a negotiable promissory note, and a prima facie case was not made in an action thereon by a subsequent holder, by merely introducing the instrument in evidence and proving its execution.
    3. Bills and notes, § 102*—when instrument not negotiable note. Under Hurd’s Rev. St. ch. 98, sec. 5, page 1781 (J. & A. T 7644), providing that an instrument containing an order or promise to do an act in addition to the payment of money is not negotiable under the act, the instrument in question which, in addition to its promise to pay money, contained involved provisions relating, to a correspondence course, was not a negotiable instrument.
    Appeal from the Municipal Court of Chicago; the Hon. John K. PRiNDivrLUE, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed June 16, 1919.
    Clarence A. Samuel, for appellant.
    Julian C. Rye®, for appellee.

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

   Me. Presiding Justice Dever

delivered the opinion of the court.

This is an undefended appeal from a judgment in favor of the defendant in an action brought in the Municipal Court of Chicago against defendant to recover on a written instrument executed by him on March 10, 1915.

The instrument contains, among other things, a promise on the part of defendant to pay Edward T. Page or his order the sum of $110 in monthly instalments of $5 each. Page indorsed the instrument and delivered it to plaintiff. The document which constitutes the basis of plaintiff’s claim is an elaborately worded instrument and is well calculated, even if not so intended, to mislead one of ordinary intelligence as to its real meaning and legal effect.

It is insisted that the instrument is essentially a promissory note and that plaintiff became the legal owner and holder thereof in due course. The instrument on its face consists of a page about 9 by 10 inches of closely printed matter, a part of which is as follows:

“I hereby subscribe for and acknowledge the receipt of a scholarship in the Page-Davis School covering a correspondence course in advertising and I promise to pay to Edward T. Page or his order the sum of One Hundred and Ten Dollars in the following manner: Five Dbllars on the 1st day of April, 1915, and Five Dollars on the 1st day of May, 1915, and Five Dollars on the 1st day of each month thereafter until the amount of One Hundred and Ten Dollars is fully paid. I agree to study two hours each week, provided that I am not prevented from so doing by causes beyond my control, and I agree to begin studying as soon as I have received the first instruction papers, or within two days thereafter. It is agreed that the delivery to me of the said scholarship constitutes the acceptance of this subscription by Edward T. Page at his office in Chicag'o, Hlinois, and that this subscription is not subject to cancellation and that he shall not be required to refund any part of the money paid for said scholarship which entitles me to all the benefits of the school’s instruction in advertising (and correct English if necessary), for five years from date. ’ ’

Beneath the above is set out, in much smaller type, numerous provisions, among which it is specified that said price includes all charges for instructions, etc.; that the number of lessons in advertising to be furnished to defendant under the contract would not affect the plan of payment, except that the Page-Davis School was to continue the instruction of defendant even after the last payment due was made and until he became qualified for a final examination; that the United States' Postal Service was to be defendant’s agent for the transmission of lessons to and from the school; and this finely printed part of the instrument contains a drastic provision which permitted a judgment by confession in favor of the holder of the instrument for any amount due thereunder.

In an affidavit of merits filed by the defendant it is charged that defendant had never received any service or benefit whatsoever from or under the instrument; that the blanks therein were filled in and the amounts inserted therein without the knowledge or consent of the defendant.

For the plaintiff it is insisted that the defendant by executing the instrument unconditionally promised to pay the amount named therein to the person specified therein at fixed and certain future times; that section 183 of chapter 98 of the Negotiable Instruments Act (J. & A. ft 7823) provides:

“A negotiable promissory note, within the meaning of this act, is an unconditional promise in writing, made by one person to another, signed by the maker, engaging to pay on demand or at a fixed or determinable future time a sum certain in money to order or to bearer.”

It is also insisted that under other sections of this act the instrument is to be regarded as an unqualified and unconditional promise to pay the sums mentioned therein.

The single question which we have to determine here is whether the instrument on its face is to be regarded as a negotiable promissory note. The only evidence in the record shows that the instrument was executed by the defendant and was indorsed and delivered by Page to the plaintiff. It may be conceded that where a writing in the form of a promissory note forms part of an instrument containing other conditions and stipulations, its character as a negotiable promissory note is not thereby necessarily destroyed:

In the case of Page v. Wooster, 213 Ill. App. 239, the First Branch of this court had before it for construction an instrument identical, except as to the name of the signer, with the one under consideration here. In deciding that case, Mr. Justice Matchett, who delivered the opinion of the court, said:

“It is a general rule, as we understand it, that it is essential to the negotiability of a bill or note that it purport to be only for the payment of money, and that the order to pay must not be coupled with other or non-negotiable stipulations between the parties. If other agreement of a different character is in-grafted upon it, it becomes a special contract and thereby loses its character as a commercial instrument. Daniel on Negotiable Instruments (6th Ed.), vol. 1, p. 79; American & Eng. Encyc. of Law, vol. 4, p. 124. It is true, as appellant points out, that under the provisions of section 3 of our Negotiable Instruments Act [J. & A. ft 7642], a statement of the transaction which gives rise to the instrument may appear thereon without destroying its negotiable character. Doyle v. Considine, 195 Ill. App. 311. This does not conflict with or control the provision of section 5 [J. & A. 7644], that other promises than to pay money except as therein provided must not be included. If they are included, the instrument becomes a special contract between the parties executing it.”

We are inclined to agree with what is said in the opinion quoted from. The instrument in question is too long to be set out here in full. It is sufficient, however, to say of it that it is well calculated to deceive any person who might become a party thereto. From the whole context of the instrument it is perfectly clear that the Page-Davis Company, which appears on the face of the instrument to operate the Page-Davis School, intended by the instrument to bind itself to render certain instructions to the defendant. It is evident that the instrument is so drawn as that a basis might be laid for the contention that the instrument on its face constitutes a mere unilateral promise for the payment of money. Placed inconspicuously in fine print in the lower left-hand comer of the instrument is the following:

“It is distinctly understood that the said Scholarship entitles the subscriber to instruction and not to a set number of lesson sheets.”

It is our opinion-that the instrument constitutes a special contract; that it is not a negotiable promissory note.

In the statement of claim filed by the plaintiff it is alleged that Edward T. Page indorsed and delivered the instrument to plaintiff, who became a bona fide owner and holder thereof, and that defendant had made default in the payments due and that all of the principal of said note remains wholly unpaid.

The affidavit of defense sets up that defendant had never received a scholarship from the Page-Davis School nor any correspondence course in advertising; that the plaintiff had taken the alleged promissory note after maturity.

Section 5 of chapter 98, Hurd’s Eev. St., page 1781. Negotiable Instruments Act (J. & A. If 7644), provides :

“An instrument which contains an order or promise to do an act in addition to the payment of money is not negotiable under this act.”

While it has been said that superadded agreements which do not impair the certainty of a promise to pay a given sum, but only facilitate the means of its collection, will not in any degree destroy the negotiability of the instrument, that principle can have no application to the instant case for here the very volume, form and even the vagueness of the instrument itself stamp it as something other than a negotiable promissory note. Daniel on Negotiable Instruments (6th Ed.), pages 79 and 80.

Holding, as we do, that the instrument in question was a special contract, the plaintiff did not establish a prima facie case by merely introducing the instrument in evidence and proving its execution'. The judgment of the Municipal Court will be affirmed.

Affirmed.


author: Mr. Justice Holdom

text:
    Emma C. Thoendel, Administratrix of the Estate of Herbert J. Thoendel, Deceased, Appellee, v. John R. Robertson, Appellant.
    Gen. No. 24,947.
    1. Clubs, § 2

      —what amount payable under contract on death of member. Under a contract of club membership, reciting in its heading “6 per cent interest, compounded annually,” and providing for the payment of $10 on the first of each month for 82 months, for which defendant agreed to deliver to the holder of the agreement $1,000 in $100 notes due within 82 months, and providing as one of the six “privileges of surrender” before the completion of the contract, for the payment of cash and the full accumulation at death, the administratrix of a deceased member was entitled to “cash and the full accumulation,” of 6 per cent interest compounded.
    2. Clubs, § 2*—when clause. of contract inapplicable on death of member. Under a contract of club membership providing for monthly payments for 82 months, for which $1,000 was to be paid in $100 notes due within 82 months, and providing in one privilege clause for a certain payment at death, and in another for a payment for “paid-up contract,” the latter clause did not apply at the death of a member who died before the contract was paid up, but after it had become nonforfeitable under the terms of the contract.
    3. Contracts, § 168

      —rule requiring ambiguity to be resolved against party preparing contract applied to contract of club membership. The rule that ambiguity in a contract must, under well-settled rules of interpretation, be resolved against the party who prepared the contract, applied in favor of the administratrix of the estate of a deceased party to a contract of club membership promising to pay a stated sum in consideration of making monthly payments.
    4. Appeal and error, § 1301*—when evidence assumed sufficient to sustain finding and judgment. In the absence of a bill of exceptions, and there being no evidence béfore the Appellate Court, it was the duty of that court to assume that there was evidence heard by the trial court sufficient to sustain the finding and judgment.
    Appeal from the Municipal Court of Chicago; the Hon. Samuel H. Trude, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed June 16, 1919.
    Bernard F. Johnston, for appellant.
    G-urdon Williams, for appellee. -

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal from a judgment of $361.41 entered upon the finding of the trial judge, a jury having been waived.

Defendant admits a liability for $205, and the controversy centers around the difference between that amount and the amount of the judgment-

We might affirm the judgment for defendant’s failure to sufficiently abstract the contract upon which the action is grounded. The abstract is in this regard so meager that it operates to conceal instead of disclosing the cause of action. However, we turn to the record and find a contract headed: “Robertson & Young’s Prosperity Club of Chicago Membership Agreement, Six per cent (6%) interest, compounded annually.” The contract is. dated the 1st day of February, 1911, and provides for the payment by Herbert J. Thoendel of $10 on the first day of each month thereafter during a period of 82 months, at the office of Robertson & Young in Chicago, for which Robertson & Young agreed to deliver to the holder of the agreement $1,000 in $100 notes due and payable within 82 months of the date of the agreement, said notes being secured by a first lien by the makers on Chicago city or suburban real estate as therein enumerated. Then follow six “privileges of surrender” before completion of contract, the one applicable to the case at bar being as follows: “At death—for cash and the full accumulation, or it may be continued by the legal representative with the same privilege as original contract holder. ’ ’

Thoendel died and his administratrix brings this suit, claiming “for cash and the full accumulation,” and insists that that accumulation is 6 per cent interest compounded.

The contract is nonforfeitable after 12 monthly payments have been made, and Thoendel made payments exceeding such number. These payments are indorsed on the back of the contract, are not in dispute, and amount to $560. The accrued interest is calculated at $136.69, and compound interest at $37.07, malting a total of $733.76. On this sum are the following credits: Payments on January 31, 1918, of $100, on March 1,1918, $150, and on May 1,1918, $127.50, making a total amount of credits of $377.50, leaving a balance due of $356.26. The finding was for the latter sum, with accrued interest from June 21, 1918, to the date of the judgment.

The defense rests upon the contention that the privilege clause “for paid-up contract” applies. This reads as follows: “Any time for paid-up contract after 30 monthly payments have been made, payable at maturity of 82 months or any time thereafter at 4 per cent interest. ’ ’

It will be seen from the foregoing recitation that-56 payments were made, and so we think that this clause did not apply to the condition here found.

Confronted as we are with an express provision for settlement at the death of Thoendel, which is for cash and the full accumulation under a contract which is headed, “6 per cent interest, compounded annually,” we see no escape from the conclusion that plaintiff was entitled to recover the amount due on the principal with 6 per cent interest compounded annually. As more than 12 monthly payments were made, the contract was, under its express terms, “nonforfeitable.” The fact that there were defaults in the payment of subsequent instalments does not, we think, under the terms of the contract, disturb the right to recover compound interest.

We do not think the contract is ambiguous in its terms, and, if it were, such ambiguity must, under well-settled rules of interpretation, be resolved against the defendant, who prepared the contract. McClenathan v. Davis, 243 Ill. 87; Massie v. Belford, 68 Ill. 290.

Furthermore, there is no bill of exceptions in the record or statement of facts. There being no evidence in the record before us, it is our duty to assume that there was evidence heard by .the court sufficient to sustain its finding and judgment. Hagen Paper Co. v. East St. Louis Pub. Co., 269 Ill. 535.

Agreeing as we do with the construction placed by the trial judge upon the contract in the record, the judgment of the Municipal Court is affirmed.

Affirmed.


text:
    In re Estate of John A. Rippel, Deceased. Edward B. Witwer, Executor, Appellant, v. Mary W. Ruth and Mignon Ruth Krakower, Guardians, Appellees.
    Gen. No. 25,052.
    1. Executors and administrators, § 319

      —what is preferred claim, against attorney's estate. Property belonging to a minor received by an attorney under authority of an order of a foreign court entered in the estate of a minor, and while acting in the place of the nonresident guardians, was received in trust for the minor, and in converting the property to his own use the attorney was guilty of a breach of that trust, and the debt against the estate of such attorney was a fiduciary debt, and allowable as a preferred debt in the administration of such attorney’s estate.
    2. Executors and administrators, § 326*—when claim, against attorney’s estate allowable as one of sixth class. A claim against the estate of an attorney who had received money of a minor pursuant to order of a foreign, court, and while acting in the place of the nonresident guardians, was properly allowed by the Circuit Court as a claim of the sixth.class, as money received in trust.
    Appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed June 16, 1919.
    Joseph Gr. Sheldon, for appellant.
    William B. Jarvis, for appellees.

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

   Mr. Justice Holdom

delivered the opinion of the court.

The amount of the claim against the estate of decedent involved in this litigation is not in dispute. The Probate Court allowed the claim as of the seventh class; upon appeal the Circuit Court allowed the claim as of the sixth class and the cause is here for review upon the appeal of the executor, contending, as he does, that the claim should have been allowed as of the seventh class and that it was error for the Circuit Court to allow it as of the sixth class.

The cause was tried without the intervention of a jury by the agreement of the parties upon a stipulation as to the facts. The principal facts appearing from the stipulation are that Robert Kenneth Street was a minor and a nonresident of this State, and that he lived in Baker county in the State of Oregon; that he was an heir of Robert R. Street, deceased, and entitled to a distributive portion of his estate, which-was in the course of- administration in the Probate Court-of this county; that the County Court of Baker county, Oregon, appointed Mary W. Ruth and Mignon Ruth Krakower guardians of the estate of the minor Street; that the deceased John A. Rippel was in his lifetime a lawyer practicing his profession at the Chicago Bar; that on the 22nd day of December, 1914, the guardians of Street presented their petition to the County Court of Baker county in the matter of the estate of their ward, asking for leave to authorize the deceased Rippel to waive, on behalf of the minor, service of notice to the heirs of Robert R. Street, deceased, of a partial distribution of said estate in kind, and to receive that part of the assets of such estate due to said ward for and on behalf of his guardians, and an order in accord with said petition was entered • by the court; that pursuant to such order the said Rippel presented his petition to the Probate Court of Cook county in the matter of the estate of Robert R. Street, asking that certain cash, notes and contracts comprising the distributive share of the minor Robert Kenneth Street in' the estate of Robert R. Street, deceased, be delivered to him for the account of the guardians of said minor; that said petition of Rippel was granted and an order entered authorizing the administrator de bonis non to deliver the minor’s share of the estate of Robert R. Street, deceased, to said Rippel; that about June 30, 1915, the administrator did deliver cash and securities described in the petition to said Rippel, who gave his receipt therefor on behalf of the guardians of said ward; that Rippel, instead of sending the cash and securities to the guardians, less his lawful charges, which he should have done, converted the whole thereof to his own use, and that such conversion by said Rippel of the property of said ward was without the consent of either said ward or his guardians, and that such property was wrongfully appropriated and converted by said Rippel to his own use. It was also stipulated that the estate of Rippel, deceased, is insolvent and that the section of the statute under which the Circuit Court allowed the claim as of the sixth class reads: “Sixth. Where the deceased has received money in trust for any purpose, his executor or administrator shall pay out of his own estate the amount thus received and not accounted for.” Counsel for the Rippel estate contends that this classification applied to “technical trusts only.” This observation we are unable to fathom. Trusts arise from the relationship of the parties either expressed or by implication from such relationship.

The property received by Rippel belonged to the minor. It was received by him under authority of an order of the Oregon court entered in the estate of the minor. When Rippel received and receipted for the minor’s property he was acting in the place of the nonresident guardians. He received the property for these guardians as trustee for the minor, and in converting the property to his own use he was guilty of a breach of that trust. It was said in Taylor v. Mayo, 110 U. S. 330:

“A trustee may be defined generally as a person in whom some estate, interest or power in or affecting property is vested for the benefit of another.”

The Oregon court which appointed the guardians by another order authorized Bippel to receive the property belonging to the minor for the guardians. It was in virtue of the order of the Oregon court that the Probate Court of this county allowed the administrator to deliver the property of the minor to Bippel. We think under these circumstances Bippel was as much a trustee for the minor as were his guardians. They all acted under the authority of the orders of the same court. In re Toman’s Estate, 110 Ill. App. 135, it was said:

“Appellant, as guardian of the minors, was a trustee of the property for their benefit, and chargeable as such * * * and must be held to have dealt with the property for the benefit of his wards.”

When Bippel received the property of the minor from the administrator of his ancestor’s estate, the title did not pass to Bippel but remained in the minor, and the appropriation of the property to Bippel’s own use was a breach of trust. Bippel in acting for the minor’s guardians must be treated and held to the same responsibility as such guardians; for as held in Davis v. Harkness, 6 Ill. 173, the debt against his estate must be treated as a fiduciary debt, and as a preferred debt in the administration of his estate.

The language of the Lord Chancellor in Cary v. Bertie, 2 Vern. 333, that “If a stranger enters and receives the profits of an infant’s estate, he shall, in the consideration of this court, be looked upon as a trustee for the infant, and the like,” is pertinent to the relationship borne by Bippel to the minor Bobert Kenneth Street when he received the property of the minor from the administrator of his ancestor’s estate. The property which Bippel received for the Street minor he received as trustee. It was in his hands trust property, and when he failed to deliver it to the lawfully constituted guardians of Street he was guilty of a breach of trust and of a conversion of the trust property to his own use, contrary to law and his duty.

The Circuit Court in our opinion rightfully allowed the claim as of the sixth class, and its judgment is therefore affirmed.

Affirmed.


author: Mr. Justice McSurely

text:
    The People of the State of Illinois, Defendant in Error, v. William Robertson, Plaintiff in Error.
    Gen. No. 23,936.
    1. Larceny—when judgment not erroneous for failure to find value of property. A judgment under an Information charging stealing, sentencing defendant to the House of Correction and to pay a stated fine, entered pursuant to a plea of guilty after jury waiver, was not erroneous because of the failure of the trial court to make a finding of the value of the property stolen.
    2. Indictment and information, § 13

      —when information sufjhciently subscribed and verified. The objection that the information in question, charging defendant with stealing, was not sufficient because not subscribed and sworn to by the State’s Attorney, Attorney General or prosecuting attorney, was not sustained where the information was filed and subscribed and sworn to by an individual.
    Error to the Municipal Court of Chicago; the Hon. John A. Ma-honey, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed June 16, 1919.
    Rehearing denied June 30, 1919.
    Jacob Katz, for plaintiff in error; K. B. Czarnecki, of counsel.
    Maclay Hoyne and Edward E. Wilson, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.

The information in this cause, filed March 17, 1917, charged defendant with stealing a number of articles from Marshall Field & Company, a corporation, all of the value of $15. Defendant signed a jury waiver, and the cause was tried by the presiding judge upon defendant’s plea of “guilty” in manner and form as charged in the information. The court found that “the said William Robertson is guilty of the criminal offense of ‘larceny’ on said plea of guilty,” and sentenced him to'the House of Correction for one year and to pay a fine of $100.

Defendant here contends that the judgment should be reversed for the failure of the trial court to make a finding of the value of the property stolen. The citations submitted in support of this claim are not in point inasmuch as none of them covers a case wherein the defendant, as here, pleaded guilty to the charge. “A defendant, by pleading guilty, waives his right to a trial by jury, and, no finding being necessary, the judgment follows the plea, as upon conviction.” 2 Encyc. of PL & Pr. 782, and cases there cited.

Complaint is made that the information was not sufficient because not subscribed and sworn to by the State’s Attorney, Attorney General or prosecuting attorney, as required by law. Whatever the rule may be in the case of an information filed by any of the officers mentioned, it has no application to the matter before us, wherein the information was filed by a private individual, by whom it was subscribed and sworn to as the statute provides.

No reason appearing why we should hold otherwise, the judgment of the trial court is affirmed.

Affirmed.