author: Pleasants, J.

text:
    City of Chicago v. The Vulcan Iron Works.
    1. Jurisdiction of Supreme Court — Original and Appellate.— The Constitution declares that the Supreme Court shall have original jurisdiction in cases relating to the revenue, in mandamus, and habeas corpus, and appellate jurisdiction in all other cases. It was not intended by this to confer upon the Supreme Court jurisdiction absolutely in all other cases, but only that in all other cases in which they should have it, the jurisdiction should be appellate.
    2. Creation of Appellate Courts—Their jursidiction.—By the Constitution, the legislature were authorized to create inferior Appellate Courts, to which appeals and writs of error should lie, and in pursuance of this power such courts were established, with appellate jurisdiction from the final judgment of the Circuit or Superior- Courts in any proceeding at law or in chancery, other than criminal cases, and cases involving a franchise or freehold, or the validity of a statute; a,nd in these omitted cases it was by that Act provided that appeals and writs of error should lie from such final orders, judgments or decrees, directly to the Supreme Court. But section 67 of the amended Practice Act, and section 88, to which it refers, when construed together, confer upon the Appellate Courts jurisdiction in these omitted cases, except where - the party appealing or prosecuting a writ of error, elects to go directly to the Supreme Court; and between the provisions of the two Acts there is no substantial conflict.
    Appeal from the Circuit Court of Cook county; the Hon. John GK Bogers, Judge, presiding.
    Mr. Joseph F. Bonfield, for appellant;
    contending that the land had been condemned by the city for a public street, and no appeal having been taken from the judgment confirming the assessment of damages, the appellee is barred from setting up its title as against the city, cited Laws 1863, 82; City Charter, Chap. 7, § 15.
    That the city enjoys only an easement over the land in controversy, for which an action of ejectment will not lie: I. B. & W. R. R. Co. v. Hartley, 67 Ill. 439; Gebhardt v. Reeves, 75 Ill. 301; Old Town v. Dooley, 81 Ill. 255; Washburn on Easements, 3; Gale on Easements, 6; Tyler on Ejectment, 41; Washburn on Easements, 693; Childs v. Chappell, 5 Selden, 246; Wilkin v. Lane, 37 Barb. 244; Caldwell v. Fulton, 31 Penn. 475; Clement v. Yungman, 40 Penn. 341; Camden, etc. R. R. Co. v. Stewart, 3 C. E. Green, 493.
    Ejectment cannot be sustained against a municipal corporation, by showing that the locus in quo was in use as a public street: Cowenhoven v. Brooklyn, 38 Barb. 9; Cartelyon v. Van Brundt, 2 Johns. 357; Sidney v. Earle, 12 Wend. 98. therein: Lumbard v. Abbey, 73 Ill. 177; Munn v. Burgess,
    Appellee took the land with notice of all appellant’s rights 70 Ill. 604; McConnell v. Reed, 4 Scam. 117.
    Where notice of proceedings to open streets is given by publication only, the law imputes notice, and want of actual notice is no ground of relief against such proceedings: Methodist Church v. Baltimore, 6 Gill. 391; State v. Jersey City, 4 Zab. 662; Dubuque v. Worten, 28 Iowa, 571.
    The question whether appellant took possession of the premises vi et armis, cannot be raised in this form of action: Redfern v. Redfern, 38 Ill. 509; Dupuy v. Williams, 26 Cal. 309; Foster v. McDivit, 9 Watts, 341; L. B. & M. R. R. v. Winslow et al. 66 Ill. 219.
    Mr. David Fades and Mr. John P. Wilson, for appellee;
    that it was not necessary for plaintiff to prove possession by the defendant, or demand for possession by the plaintiff, unless the same be denied by the defendant under proper plea, cited Rev. Stat. 1874, 445, §§ 21, 22; Harding v. Strong, 42 Ill. 148.
    The failure to give notice of meeting to make assessment, or application for'confirmation, was fatal, and the city council had no jurisdiction to make a condemnation: Rich v. City of Chicago, 59 Ill. 286; Burton v. City of Chicago, 53 Ill. 87; Andrews v. City of Chicago, 57 Ill. 239; Brown v. City of Chicago, 62 Ill. 106; Marsh v. City of Chicago, 62 Ill. 115; Honore v. City of Chicago, 62 Ill. 305
   Pleasants, J.

This was an action of ejectment, and the judgment below was for the plaintiff who claimed in fee.

Having. concluded to affirm it, we are not required to file a statement of our reasons; but since the jurisdiction of this court is questioned because a freehold is involved, and other classes of cases of like importance are in the same category, we deem the point of sufficient interest to justify the’deliberate expression of our views upon it.

Section 2 of Art. VI. of the Constitution declares that “ the Supreme Court shall have original jurisdiction in cases relating to the revenue, in mandamus and habeas corpus, and appellate jurisdiction in all other cases.” R. S. 1877. p. 63.

By this it was not intended to confer upon the Supreme Court jurisdiction absolutely in all other cases, but only that in all other cases in which it should have jurisdiction, whether few or many or all, it should be appellate.

For section 11 of the same article declares that “ after the year of our Lord 1874, inferior Appellate Courts, of uniform organization and jurisdiction, may be created in districts formed for that purpose, to which such appeals and writs of error as the General Assembly may provide, may be prosecuted from Circuit and other courts, and from which appeals and writs of error shall lie to the Supreme Court in'all criminal cases, and cases in which a franchise or freehold or the validity of a statute is involved, and in such other cases as may be provided by law. ” Id. p. 64.

Thus the legislature was expressly empowered to create these courts and confer upon them jurisdiction, on appeal or-writ of error, without limit as to subject matter, and which might be final except in the four classes of cases specified.

In pursuance of this authority the General Assembly, by an •act entitled “An Act to establish Appellate Courts,” approved June 2, and in force July 1, 1877, did create them, and in § 8 declared that they should have jurisdiction “ of all matters of appeal or writs of error from the final judgments, orders or decrees of any of the Circuit Courts, or the Superior Court of Cook county, or from the city courts, in any suit or proceeding at law or in chancery other than criminal cases, and cases involving a franchise or freehold, or the validity of a statute;” and that in these omitted cases appeals and writs of error should lie from such final orders, judgm ents or decrees, directly to the Supreme Court.” Laws of Illinois, 1877, p. 71.

Here is a positive grant of jurisdiction to these courts, on appeal or writ of error, in all cases at law or in chancery other than tlie four classes previously mentioned. As to these it is not prohibited, but simply not given. So far as given the jurisdiction is exclusive in them, in the first instance, and by further provision of the same section is final, unless the amount in controversy or the judgment below is not less than one thousand dollars, exclusive of costs, or if less, the questions of law involved are,' in their opinion, of such importance that they should be passed upon by the Supreme Court.

But as we have seen, even this large grant of jurisdiction did not exhaust the power of the legislature in that regard. It might still confer it in these oipitted cases, or any of them, provided only that it should not be final; and such further grant, being purely additional, would not conflict with this •section, in respect either to the subject of jurisdiction or to any substantial right of parties litigant, but at most only in respect to a matter of mere procedure, by repealing, to that extent, the provision in said section that in these cases appeals and writs of error should lie directly to the Supreme Court.

Accordingly, by another “Act to amend the Act entitled an Act in regard to Practice in Courts of Record,” which was approved and went into force on the same days, respectively, with the Act to establish Appellate Courts, it was provided in § 1, that §§ 36 and 67 to 86, inclusive, of the act mentioned in the title, be amended so as to read, respectively, as therein set forth. Section 67, as so amended, reads as follows:

“ Appeals from, and writs of error to, all Circuit Courts, the Superior Court of Cook county, and city courts, and from all other courts from which such appeals and writs of error may be allowed by law, may be taken to the Appellate Courts from all final judgments, orders and decrees, except as hereinafter stated: Provided,” etc. Laws of Illinois, 1877, p. 149; and the only exceptions thereinafter stated are to be found in the additional § (88), quoted below. The following amended sections, to 86, inclusive, adapt and apply to the Appellate Courts the provisions of the former act. prescribing the practice and proceedings on appeal to, or writ of error from, the Supreme Court.

Section 2, of said amendatory act (Id. p. 153), provides that additional sections shall be added to said entitled act, to read as follows:

Section 87 (requiring a recital by the Appellate Courts in their final orders, in certain cases, of the facts as found by them).

Section 88. Appeals from, and writs of error to, Circuit Courts, and the Superior Court of Cook county, and city courts, in all criminal cases, and cases in which a franchise or freehold, or the validity of a statute is involved, shall be taken directly to the Supreme Court in case the party appealing or prosecuting such writ of error shall so elect, excepting in cases of chancery'.”

So, by section 67 of the amended Practice Act, and section 88 to which it refers, considered together, the legislature has expressly conferred upon these courts the additional jurisdiction of criminal cases and cases at law involving a franchise or freehold, or the validity of a statute, except where the party appealing or prosecuting the writ of error elects to go directly to the Supreme Court.

As we have already said, there is in this not even a seeming inconsistency with the jurisdiction section of the act to establish Appellate Courts, except as to a mere matter of procedure. We are, therefore, not to determine, as in a case of conflict,, that one of these acts, so far as it purports to confer jurisdiction, is operative, and declare the other to be of no effect. And if there be no such ground for doubt, in the face of this express declaration, that it was the intention of the Legislature to confer the additional jurisdiction, to be exercised only by consent of the party appealing or prosecuting the writ of error, we can have no difficulty on account of so unimportant a change, though amounting to a conflict, in respect to a mere matter of procedure which is necessary to its exercise. Por it is to be noticed that the proceeding by appeal or writ of error from the lower courts directly to the Supreme Court under the amended Practice Act remains as under the act to establish Appellate Courts. By the former the right of appellant or plaintiff in error, as given by the latter, is wholly unimpaired; but in addition thereto there is given him the right to take first, if he sees fit, the judgment of another though intermediate tribunal. So that the conflict between the two acts, if any, in respect even to the matter of procedure, in criminal cases, and cases at law involving a franchise or freehold, or the validity of a statute, touches only the appellee or defendant in error, and his right to the ultimate judgment of the Supreme Court is fully preserved. But the conflict is seemingly greater in respect to “cases of chancery,” which, by the exception in section 88 of the Practice Act are required, absolutely and without any option in either party, to go first, upon appeal or writ of error, to the Appellate Court, notwithstanding they may involve a franchise or freehold, or the validity of a statute. And yet the Supreme Court has given full force and effect to this exception. Much more, then, must we give force and effect to the provision in the same section relating to cases at law which involve the same interests and questions.

The intention of the Legislature is further manifested, and as it seems to us quite beyond doubt, by the additional sections 89 and 90 of the amended Practice Act. By the former the Supreme Court is limited to the re-examination of questions of law only, on appeal from or writ of error to the Appellate Courts, in all cases, except these four classes, in respect to which its jurisdiction, being absolutely given by the Constitution, could not be so limited; and the latter provides that “in all criminal cases, and in all cases where a franchise or freehold, or the validity of a statute is involved, and in all other cases where the sum or value in controversy shall exceed one thousand dollars, exclusive of costs, which shall be heard in any of the Appellate Courts, upon errors assigned, if,” etc. (that is, if the order or judgment of the Appellate Court be a final order or judgment of said court), “any party to such cause shall be permitted to remove the same to the Supreme Court by appeal or writ of error in the same manner as provided in sections sixty-seven (67) and seventy (70) of this act for appeals to said Appellate Court: Provided,” etc.

The jurisdiction in question is thus actually conferred, both by expression and implication, in many different sections, so clear as to leave no room for doubt, and the power of the Legislature under the Constitution to confer it is equally express and clear.

"We'have already anticipated the only remaining question which had occurred to us on this subject, viz: whether these provisions conferring it, occurring in an act entitled “ An Act to amend an Act entitled an Act in regard to practice in courts of Record,” are valid under the rule of the Constitution set forth in § 13 of Art. IV., that “ no act hereafter passed shall embrace more than one subject, and that shall be expressed in the title.”

The Constitution having established a court and given it the jurisdiction absolutely, and also empowered the legislature to establish another and confer upon it the same jurisdiction, subject to the revisory power of the former, and the legislature having created such court, we think that whether these cases shall go, on appeal or writ of error, first to it, or directly to the other, is a matter of procedure, and may properly be determined by an act whose title shows its subject to be the establishment and regulation of practice in courts of record.

We entertain no doubt of our jurisdiction of the case at bar, and as no error is perceived in the record, the judgment of the Circuit Court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Murphy, P. J

license: Public Domain

text:
    Mary Houfes v. George L. Schultze, et al.
    1. Statement.—The trust deed for use of appellant was executed and delivered Feb. 5, 1873, but was not recorded until April 8, 1873. The trust deed for use of appellee was executed March 26, 1873, and filed for record March 27, 1873, but was not delivered, nor was the loan evidenced thereby, actually, advanced until April 8,1873.
    2. Delivery.—The execution and recording of the trust deed to appellee, was not a delivery in law, and there could be no delivery of it until he was willing to and did accept the same, and pay over the consideration.
    3. Concurrent acts — Presumption as to time.—Appellant’s deed was filed for record April 8, which was notice in law to appellee of its existence, and all facts connected with it; and on the same day appellee accepted the delivery of the deed to him, and paid over the money; acts which were necessary to give it validity and make it operative as a security. There being no fractions of a day in computation of time, the presumption of law, in the absence of proof to the contrary, is, that these were concurrent acts, and each party stands charged with notice of the equities of the other on that day, at the same moment of time.
    4. Senior and junior conveyances—Burden of proof.—He who holds a junior conveyance of real estate, and claims to be a bona fide purchaser, and entitled to protection against a senior conveyance, takes upon himself the burden of showing that he has truly paid his money, independently of the recitals in the deed or mortgage.
    5. Rule as to precedence where equities are equal.—Where the first and second mortgagees receive notice, each of the other’s equities, concurrently, the equities being equal in point of merit, the oldest in point of time will prevail.
    Appeal from the Circuit Court of Cook 'county; the Hon. E. S. Williams, Judge, presiding.
    Messrs. Rosenthal & Pence, for appellant;
    argued, that if the agent at time of effecting the purchase, possesses actual knowledge of any prior lien affecting the property, no matter when he acquired such knowledge, his principal is affected thereby, and. cited Dresser v. Norwood, 17 Com. Bench (N. S.) 466; Bradley v. Riches, 38 L. T. Rep. (N. S.) 810; Le. Neve v. Le. Neve, 1 Atk. 646; Hart v. Farmers’ Bank, 33 Vt. 252; Dunlap v. Wilson, 32 Ill. 517; Williams v. Tatnall, 29 Ill. 553; The Distilled Spirits, 11 Wall. 356; 2 Leading Cas. Eq. *35.
    Wherever confidence is reposed and accepted, the relation of principal and agent springs up: 1 Smith’s Leading Cas. 369.
    So far as the services of Knauer Brothers were those of brokers, they were the agents of both parties: Story on Agency, § 28.
    The trust deed to Schultze took effect as security only from the time the notes and deed were delivered and accepted, and the money paid over: 1 Jones on Mortgages, § 539; Goodsell v Stinson, 7 Blackf. 439; Parker v Hill, 8 Met. 449; Jackson v. Bard, 4 Johns. 230; Jackson v. Richards, 2 Cow. 617; Foster v. Beardsley, 47 Barb. 513; Schafer v. Riley, 50 N. Y. 61; Frost v. Beekman, 1 Jones Ch. 297; Skinner v. Baker, 79 Ill. 496.
    The record of a deed is only prima facie evidence of delivery: 1 Jones on Mortgages, § 539; Stiles v. Probst, 69 Ill. 382.
    There must be delivery and acceptance, in order to make a mortgage of any effect: 1 Jones on Mortgages, § 84; Jackson v. Richards, 6 Cow. 619; Stiles v. Probst, 69 Ill. 382; Kingsbury v. Burnside, 58 Ill. 310; Jackson v. Bodle, 20 Johns. 184; Jackson v. Dunlap, 1 Johns. Cas. 114; Skinner v. Baker, 79 Ill. 496; Jackson v. Catlin, 2 Johns. 258; Simonds v. Catlin, 2 Caines, 61; Furness v. Williams, 11 Ill. 229.
    Until a deed is delivered and accepted, it is a nullity, and being a nullity, it is not entitled to be placed on record, but being placed on record, it cannot operate as notice: Moore v. Hunter, 1 Gilm. 317; St. John v. Conger, 40 Ill. 535; James v. Morey, 2 Cow. 310; Mesich v. Sunderland, 6 Cal. 315; Kerns v. Savage, 2 Watts, 77; Tillman v. Cowan, 12 Sm. & M. 265.
    The debt is the principal, and the mortgage or trust deed the mere incident, and the principal not existing or having ceased to exist, the vncident becomes a nullity: Lucas v. Harris, 20 Ill. 165; Ryan v. Dunlap, 17 Ill. 40; Witham v. Brooner, 63 Ill. 344; Lynch v. Swayne, 83 Ill., 336; Andrews v. Thayer, 30 Wis. 228; Powell v. Conant, 33 Mich. 396; Burson v. Huntington, 21 Mich. 429; Ladue v. R. R. Co. 13 Mich. 395.
    The burden is upon defendant to show that he took his subsequent mortgage in good faith, and actually paid the money thereon before notice of the previous incumbrance: Brown v. Welch, 18 Ill. 343; Mozier v. Knox College, 32, 155; Baldwin v Sager, 70 Ill. 503; Boone v. Childs, 10 Pet. 209; Wormley v. Wormley, 8 Wheat. 449; Frost v. Beekman, 1 Johns. Ch. 300; Jewett v. Palmer, 7 Johns. Ch. 67; Thomas v. Graham, Walker’s Ch. 118; 3 Washburn on Real Prop. 323; 2 Story’s Eq. § 1502; 2 Leading Gas. Eq. *40; Perry on Trusts, § 221.
    The record of the first mortgage prior to the payment of the money upon the second mortgage, would operate as notice so as to charge the second mortgagee, and subject him to the rights of the first mortgagee: Stone v. Welling, 14 Mich. 514; Ladue v. R. R. Co. 13 Mich. 380; Ter-Hoven v. Kerns, 2 Barr, 99; Montgomery County Appeal, 36 Pa. St. 172; Brinkerhoff v. Marvin, 5 Johns. Ch. 326; Griffin v. New Jersey Oil Co. 3 Stockt. 52; Spader v. Lawler, 17 Ohio, 371; Kramer v. Farmers’ Bank, 15. Ohio, 252; Boswell v. Goodwin, 31 Conn. 74.
    When two liens are obtained upon the same day, they will be considered concurrent in point of time, there being no proof which was actually first: Adams v. Dyer, 8 Johns. 349; Waterman v. Haskin, 11 Johns. 228; Hendrickson’s Appeal, 24 Pa. St. 363.
    Between two equities of equal merit the oldest will prevail: Noakes v. Martin, 15 Ill. 118; Deininger v. McConnell, 41 Ill. 228; Berry v. Mutual Ins. Co. 2 Johns. Ch. 607; Brown v. Welch, 18 Ill. 343; Boone v. Chiles, 10 Pet. 209; Basset v. Nortworthy, 2 Leading Cases Eq. 18; 2 Story’s Eq. § 1502.
    The release of the old mortgage and making of the new to appellant, did not change existing rights, or give priority to the second mortgage: Shafer v. Williams, Ill. Sup. Ct. June T. 1878.
    Messrs. Theodore & T. H. Soim>TTz,.for appellees;
    contending that in order to charge a principal with notice to his agent of the priority of the mortgage, the employment of the agent must have been in the character of a solicitor for purposes of advising upon that point, cited 1 Jones on Mortgages, § 587; Robinson’s Law of Priority, 32; Willie v. Pollen, 32 L. R. (N. S.) 783.
    Where an agent is guilty of fraud, for the carrying out of which it is necessary that he should conceal it from his principal, notice of it cannot be imputed to the latter: 1 Jones on Mortgages, § 589; In re European Bank, L. R. 358; Hewitt v. Loosemore, 9 Hare, 455; Hope Fire Ins. Co. v. Cambrelling, 1 Hunn, 493; Kennedy v. Green, 3 Myl. & K. 699; 1 Fischer on Mortgages, § 915; Robinson on Priority, 33.
    A mortgage becomes a lien from the date of its record, and not from the date of actual advance of the money: Parmentier v. Gillespie, 9 Pa. St. 86; Moroney’s Appeal, 12 Harris, 372; Nelson v. Iowa Eastern R. R. Co. 8 Am. R. R. Rep. 82; Griffin v. Bushnell, 4 Edw. Ch. 673; Crane v. Deming, 7 Conn. 386; Lyle v. Ducomb, 5 Binn. 585.
   Murphy, P. J

It appears that on the fifth day of February,. 1870, appellant loaned to John Hash forty-five hundred dollars ($4,500), for a period of three years, for which sum she took his promissory note, bearing interest at the rate of ten per cent, per annum, secured by an indenture of mortgage on the prem - ises in controversy, being the same premises described in the appellant’s bill of complaint, filed in this cause. ' That when that note and mortgage matured Hash desired the loan extended'for eighteen months, which appellant agreed to do, for the purpose of doing which it was agreed between them that new papers—-that is, a new note and mortgage—should be made out in substitution for those first given. This appears to have been a short time prior to the fifth day of February, 1873, the day on which the first note would mature. It appears that Hash proposed to appellant that they go to the office of Knauer Brothers, reputed real estate and loan brokers, in the city of Chicago, for the purpose of having the papers prepared; that in pursuance of such suggestion, they did so, when Hash introduced appellant to Bruno Knauer, who was directed to prepare the papers, as, had been agreed upon between appellant and said Hash, they to bear date February the fifth, 1873, on which day they were executed, the note being secured by a trust deed, with Edmund Knauer as trustee, being signed by Hash and his wife, and acknowledged before Bruno jtnauer, a notary public. At the same time appellant executed and delivered to Hash a release of the old mortgage, which, on the 28th day of March, 1873, was filed for record in the recorder’s office of Cook county.

It also appears that on the 26th day of March, 1873, Hash executed his promissory note to appellee, George L. Schultze, for three thousand dollars, due three years after date, with interest at the rate often per cent, per annum, to secure wThich he and his wife executed their certain other trust deed to said Edmund Knauer as trustee, on the same premises, which last mentioned trust deed was, on the 27th day of March, filed for record. It appears that for reasons hereafter to be noticed, the trust deed for the use of the appellee, Schultze, although filed for record on the 27th day of March, was not in fact delivered to the grantee, or used for the purposes therein expressed, until the 8th day of April, 1873, on which day it appears that the ' trust deed, first above mentioned for the use of the appellant, was filed for record in the recorder’s office. It also appears that on the 21st .day of January, 1878, the trust deed to Edmund Knauer, for the use of the appellee, Schultze, was foreclosed by the trustee by sale, in pursuance of its provisions, and George L. Schultze became the purchaser at such sale, and now claims to own said premises free and clear from any incumbrance by reason of the trust deed for the use of the appellant. On the 8th day of February, 1878, appellant filed her bill- in chancery, in the Circuit Court of Cook county, to foreclose the trust deed above mentioned, given to Edmund Knauer for her use, and to establish her said trust deed" ás a lien prior to the interest of said -George L. Schultze. Upon the hearing of the cause, the court below decreed against her, the appellant, and dismissed her bill for want of equity. From that decree she prayed an appeal to this court, and brings the record here, and assigns for error the decree dismissing her bill for want of equity, and not entering a decree according to the prayer thereof.-

The material facts in this case are undisputed, and upon them is raised a question of law, the determination of which will dispose of the case. It being conceded that the trust deed for the use of appellant was executed and delivered on the 5th day of February, 1873, upon a valid consideration, it must be held good and valid in equity against all subsequent grants, bargains, conveyances, or liens, except as to subsequent l>ona fide purchasers and incumbrances; but not being recorded until the 8th day of April, 1873, whilst the trust deed for the use of the appellee Schultze was executed on the 26th of March, 1873, and filed for record on the 27th of the same month, to secure a loan of money thereafter to be advanced, and which was advanced by said Schultze on the said 8th day of April. The question of law which we are called upon to decide, is, which of these two trust deeds, under all the facts and circumstances of the, case, is entitled to priority of lien upon the premises in controversy. As will be seen, the trust deed for the use of appellant was withheld by some one from the record, from February 5th to April 8th, and until the other trust deed for the use of Schultze, -was executed on the 26th, and filed for record' on the 27th day of March, and until the release of the old mortgage, executed and delivered by the appellant, to Mash, on the 5th day of February, was on the 28th day of March also duly filed for record.

As to just how, or by what means this extraordinary result was brought about, the testimony is in conflict. Hash, strongly corroborated by the testimony of the appellant, explains and accounts for it upon the theory of a fraudulent and criminal conspiracy between the Knauer Brothers and himself, to cheat and defraud the appellant out of her priority of lien on the premises in controversy, as charged in the bill of complaint. But this the Knauer Brothers deny, and, by their testimony, attempt to exculpate themselves from guilty complicity in the matter. This we are compelled to say, they have failed to do to our satisfaction.

There are circumstances connected with the case, and the transaction out of which it arises, apparent upon the face of their testimony, which cannot he overlooked in determining the credit which should he given to it when in conflict with the testimony of Hash, who, apparently, without interest or motive to speak other than truthful, so far as it might reflect ujJon the Knauer Brothers, makes a straightforward statement in giving his testimony, even involving himself as particeps criminis, a statement, the motives for which it is not easy to conceive, if, indeed, it was false. But the presumption of its entire truthfulness is greatly strengthened by the corroborating testimony of the appellant, as also by several important circumstances disclosed by the record in the case. We forbear any discussion of their testimony, for the reason that in the view we have taken of the case, it is not necessary to its determination, our object being briefly to express the impression it has made upon our minds.

It appears that when, on the 26th day of March, Schultze’s trust deed was executed, and on the 27th when it was filed for record, it was not delivered to appellee Schultze, nor to any one for him, hut that it was expressly agreed between Schultze and Hash that it should not he considered as between themselves as delivered, nor was it to take effect or he in force until, by an abstract of title thereafter to be obtained by Hash, it should be made to appear from the record, that the title of said Hash to said premises was good, and that the same were free and clear from all incumbrances, and that the abstract should be procured, and that the title should be approved by Obadiah Jackson, Sclmltze’s legal adviser. It appears that the abstract was brought down to March 31st, 1873, and that Jackson on the 5th day of April, gave his opinion, the abstract showing the release of the old mortgage by the appellant, and the trust deed to Edmund Knauer for the use of appellee, Schultze, approving the title except as to some minor objections suggested by him, which Hash procured to be perfected by the 8th day of April, 1873, on which day the trust deed was accepted by Schultze, and for the first time became effective or operative as security. The making and recording of the trust deed, the obtaining of an abstract, causing it to be approved by counsel, were all but steps in one transaction which was consummated on the 8th day of April, by the delivery and acceptance of the trust deed, and the payment of the consideration therefor by appellee, Schultze, namely: the three thousand dollars which he had agreed, on the 26th day of March, to loan to Hash, when all these conditions should have been complied with by him. That the executing and recording of the Schultze trust deed was not a delivery in daw, and there could be no delivery of it until "Schultze was willing to, and did accept the same, and pay over the consideration. The cases of Jackson v. Richards, 6 Cowen, 619; Stiles v. Probst, 69 Ill. 385; and Kingsbury v. Burnside, 58 Ill. 323; are full to the point and decisive of that question. Thus it appears that on the 8th day of April, the appellant’s trust deed was duly filed for record, which was notice in law to Schultze of its existence, and all the facts and circumstances legally connected with it, and on that day Schultze paid over to Hash the money, and consented to accept the delivery of said trust deed, and, as we have seen, for the first time, gave to it the character of a valid and operative security. There being no fraction of days in computation of time in matters of this character, in the absence of all proof, of which event, in fact, did take place first, the presumption of law is that they were concurrent acts, and each party stands charged with notice of the equities of the other on that day, and at the same moment of time.

The rule of law we think well settled, that he who holds a junior conveyance of real estate and claims to be a bona ficla purchaser, and entitled to the’protection of the law as against a senior conveyance, takes upon himself the burden of establishing the fact by a fair preponderance of the testimony, that he has truly paid his money, independently of the recitals in the^leed or' mortgage.

The burden then in this case being on the appellee Schultze, it was for him affirmatively to establish by proof that he paid over his money and accepted the trust deed prior in time to the filing of appellant’s trust deed, for the appellant made out her case when she made out her equitable title. Boone v. Childs, 10 Peters, 209; Brown v. Welch, 18 Ill. 346.

Where, as we have seen in this case, the first and second mortgagees receive notice each of the other’s interest concurrently, the oldest in point of time will prevail. In point of merit, the equities being equal, the rule is universal as between the two equities of equal merit, that the oldest will prevail. Noakes v. Martin, 15 Ill. 118; Dininger v. McConnell, 41 Ill. 231; Berry v. Mutual Insurance Co. 2 Johnson Ch. 607; Brown v. Welch, 18 Ill. 343; Boone v. Childs, 10 Peters, 209.

By the application of these principles to the facts in this case, the equities of the appellant being the oldest and of equal merit with that of appellee Schultze, and each having received notice of the other’s interest concurrently in point of time, the equities of appellant ought to have prevailed; and in decreeing against her and dismissing her bill for want of equity, the court below erred, for which error the decree is reversed and decree entered in this court for complainant, pursuant to the prayer of said bill of complaint.

Decree reversed.


author: Bailey, J.

text:
    John Allen et al. v. Max Kramer et al.
    ■ 1. Inland check—Presentment for payment—Reasonable time. —The law is well settled that all drafts, .whether foreign or inland bills, must be presented to the drawee within a reasonable time, and in case of non-payment, notice must be given promptly to the drawer to charge him; but what is a reasonable time will depend upon the circumstances of each case. In this case, appellees, residing in Chicago, drew their check in favor of appellants, on bankers in New York, and sent the same to the branch house of appellants in New York, from whence, on the same day, it was forwarded to appellant’s principal place of business in Philadelphia, where it was deposited in a bank, and on the same day forwarded by the hank to New York for collection through another bank, and presented for payment on the same day it was received. Held, that the check was presented within a reasonable time.
    2. Failure to present in due time.—Want of due presentment or notice of dishonor of a check, does not discharge the drawer unless he has suffered some injury or loss thereby.
    3. Signature of drawer—Drawee bound to know.—The law makes it the duty of the drawees to know the signature of their d _ isitors, ,the drawers, and the holder of such check is not bound to furnish proof of its genuineness, nor is he bound, after once presenting the check for payment, to present it a second time after the drawees have taken time to verify the signature.
    4. Presentment—Refusal—Notice of dishonor.—A presentment of a check while the drawees are solvent; a refusal of payment upon grounds for which the holder was in no sense responsible, followed by proper notice and protest, is sufficient to fix the liability of the drawers, and such liability is in no way affected by the fact that the drawees subsequently became satisfied of the genuineness of the signature, and would have paid the check had ij been again presented before their failure-
    Appeal from the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding
    Messrs. Chetlain & Gbegoby, for appellants;
    that'tlieholder of a bill or check has a reasonable time in which to present it for payment, and as to what is a reasonable time, cited 1 Daniels on Negotiable Instruments, 448; 1 Parsons on Notes, 338; Mellish v. Rawdon, 9 Bing. 416; Nat. Newark Banking Co. v. Second Nat. Bank, 63 Pa. St. 404; Taylor v. Wilson, 11 Met. 44; Aymar v. Beers, 7 Cow. 705; Montelius v. Charles, 76 Ill. 303.
    The holder does not lose his remedy against the drawer by reason of non-presentment, unless the drawer is injured by reason of the insolvency of the drawee in the interval: Story on Prom. Notes, § 493; Springfield F. & M. Ins. Co. v. Tincher et al. 30 Ill. 399; Little v. Phœnix Bank, 2 Hill, 425; Howes v. Austin, 35 Ill. 396; Heartt v. Rhodes, 66 Ill. 351; Stevens v. Park, 73 Ill. 387; Harbeck v. Craft, 4 Duer, 112; Planters’ Bank v. Merritt, 7 Heisk. 177.
    The burden of proof is upon the drawer to show not only non-presentment, but consequent injury to himself: Bradford v. Fox, 38 N. Y. 289; Syracuse, etc. R’y Co. v. Collins, 3 Lansing, 29.
    A bank is bound to know the signature of its depositors: 2 Daniel on negotiable Instruments, § 1,654; Weisser v. Denison, 10 N. Y. 68; First Nat. Bank of Quincy v. Richer, 71 Ill. 439.
    If appellees have sustained injury by reason of appellants’ laches, they are discharged from liability on the original indebtedness only to .the extent of their loss by the insolvency of the drawees: Story on Promissory Notes, §492; 2 Daniel on negotiable Instruments, 514; Smith v. Jones, 2 Bush. 103; Pack v. Thomas, 13 Smedes & M. 11; Bradford v. Fox, 38 N. Y. 289; Henshaw v. Delors Ind. Sup. Ct.
    Instructions must be based on the evidence: Weaver v. Rylander, 55 Ill. 529; Holcomb v. Davis, 56 Ill. 413; St. L. A. & T. H. R. R. Co. v. Manly, 58 Ill. 300; T. P. & W. R. R. Co. v. Patterson, 63 Ill. 304; Stein v. Kendall, 1 Bradwell, 103
    There was no dispute or contradiction as to the facts in the case, and it was the duty of the court to have pronounced the law and defined the rights of the parties to the controversy: Tefft v. Ashbaugh, 13 Ill. 602; Davis v. Hoxey, 1 Scam. 406; House v. Wilder, 47 Ill. 510; Quinn v. I. C. R. R. Co. 51 Ill. 495.
    Messrs. Tenneys, Flower & Abercrombie, for appellees;
    that a check is an assignment of so much money on which the payee may sue the drawer, cited Union Nat. Bank v. Oceana Co. Bank, 80 Ill. 212.
    The check was drawn in this State, and its validity and interpretation must be determiúed by the laws of this State, the mailing of the same here being a delivery: McKinney v. Rhoades, 5 Watts, 343.
   Bailey, J.

This suit was brought by appellants, to recover the amount of a bank check given them by appellees, in payment of certain indebtedness from appellees to them. The facts upon which the liability of appellees is sought to be established, are substantially as follows:

Oh the 27th day of Rovember, 1877, the date of the check, appellees were merchants, doing business in Chicago, as co-partners, under the firm name of Kramer Brothers. Át the same time, appellants were engaged as co-partners, under the firm name of J. & B. Allen, in the business of manufacturing and dealing in hosiery goods, having their manufacturing. establishment and principal place of business at Philadelphia, and also having a store in Rew York, where some of their goods were sold. Appellants both resided in Philadelphia; one of them, however, having charge of their business at that place, and the other of that at Rew York. The only bank account kept by the firm was with the Rational Bank of Germantown, and all their banking business was done at that bank.

The merchandise for which the indebtedness in question accrued, was purchased of appellants, either at tlieir Rew York house, or of traveling agents in the west. It appears that customers who bought goods at the store in Rew York, usually corresponded with appellants at that place, and made remittances to them there. Accordingly, all the correspondence between appellees and appellants, had been earned on with the Rew York House, and all the remittances made by appellees prior to sending the draft in question, were sent to Rew York.

The balance due from appellees to appellants on the 27th day of Rovember, 1877, being §1,006.71, appellees drew their check for that amount In favor of appellants, on Messrs. Greenebaum Bros. & Co., bankers, of Hew York city, with whom they then had a deposit, and sent the same by mail to appellants at Hew York. This check was received by the Hew York partner on Friday, Hovember 30th, and was by him, on the same day, forwarded to the other partner at Philadelphia, where it was received Saturday, December 1st. It was thereupon immediately indorsed by the Fhiladelphia partner, and deposited in the Hational Bank of Germantown, and on the same day forwarded by that bank to the Central Hational Bank of Hew York, for collection. At about one o’clock in the afternoon of Monday, December 3d, the check was presented by a messenger of the last named bank, at the counter of Messrs. Greenebaum Bros. & Co., for payment. The messenger was known at the banking house of Greenebaum Bros. & Co., but the payment of said check was refused, upon the ground that the bank teller to whom it was presented was in doubt as to the genuiueness of the signature of Kramer Brothers thereto.

It appears that the teller before refusing payment, took the ■check and showed it to David S. Greenebaum, a member of the firm, remarking that he did not recognize the signature, and asked him what to do. Mr. Greenebaum told him to return the check and he would ascertain by telegraph, whether the signature was genuine. This conversation, however, does not appear to have been in the presence of the messenger, nor is there any evidence tending to show that he was in any way advised of Mr. Greenebaum’s purpose to telegraph for information in relation to the signature. On the same day, after banking hours, the check was again presented to Greenebaum Bros. & Co. by the paying teller of the Central Hational Bank, for the purpose of protesting it if not paid. He was informed that there was something wrong with the signature, but does not appear to have been notified of any intention to inquire as to its genuineness. The check, not being paid, was duly protested, and notice of protest given to appellees.

The evidence shows that on the first or second day afterwards, Mr. Greenebaum received information that the signature was genuine. The check, however, was not again presented for payment, nor does it appear that the Central Hational Bank, or other holders of the cheek, had any notice of the result of Mr. Greenebaum’s inquiries, or of his readiness to pay the check. On the 6th day of December, Messrs. Greenebaum Bros. & Co. suspended payment and became insolvent, and so have ever since remained. ' At the time the check was drawn, and from thence up to the time of the failure, appellees had on deposit with Greenebaum Bros. & Go. an amount of money,sufficient to pay the check.

On the trial, the jury rendered a verdict for appellees, and the court below, after overruling appellant’s motion for a new trial, rendered judgment against them for costs. Appellants now ask for a reversal of the judgment, on the ground that the verdict was against the evidence, and that the court erred in its charge to the jury.

Let us first consider whether the evidence charges appellants with laches in the matter of duly presenting the check for payment. The law is well settled that all drafts, whether foreign or inland bills, must be presented to the drawee within a reasonable time, and in case of non-payment, notice must be given promptly to the drawer to charge him. But what is a reasonable time under all the circumstances, is sometimes a most difficult question. . The general doctrine is, each case must depend on its own peculiar facts, and be judged accordingly. Montelius et al. v. Charles, 76 Ill. 303; Stevens v. Park, 73 Id. 387. In the absence of any qualifying circumstances, the holder should present the bill to the person or bank on which it is drawn, if within reach of such drawee, within business-hours of the day next succeeding the receipt of the paper, and give notice of the dishonor to the drawer. Bickford v. First National Bank of Chicago, 42 Ill. 238; Strong et al. v. King, 35 Id. 9. This rule applies to bank checks as well as to bills of exchange, strictly so called. But in case of either, the rule is modified to a limited degree by the relations of the parties, their circumstances, manner of doing business, and facilities for making prompt presentation of the paper for payment.

We think the transmission of the check in question by appellants to the bank in Philadelphia, was fairly justified by the circumstances of the case, and that there was no unreasonable delay of presentment for payment. It should be remembered that appellant’s principal business operations were carried on at Philadelphia, and the only bank with which, they were in the habit of transacting business, was located at that place. In that bank it is to be presumed the funds of the firm were kept, and it appears to have been their custom, in accordance with the ordinary and well known usages of business men, to collect their bills receivable through the agency of their own bank. It is not pretended that in the transmission of the check to Philadelphia, and its subsequent presentation for payment through that channel, there was any unnecessary delay. In point of fact, it seems to have been transmitted to Philadelphia and back in the shortest time possible, and the transmission involved a delay of only about one-half of a business day, of which appellee could, in any event, have a right to complain. Had the Hew Tork partner of appellant’s firm retained the check in his hands, he would have been entitled to all of Saturday to present it for payment. It was actually presented on Monday, the next business day, at about one o’clock n. m. We think, under all the circumstances, the delay was not unreasonable, and that consequently, the presentment for payment was made in apt time.

But even were this otherwise, we fail to see how, under the circumstances disclosed by the evidence, appellees can be held to be discharged from their liability to appellants. The law is well settled that want of due presentment or notice of dishonor of a check does not discharge the drawer, unless he has suffered some loss or injury thereby. Heartt v. Rhodes, 66 Ill. 351; Howes v. Austin, 35 Id. 296; Stevens. v. Park, 73 Id. 387. Tyndall, C. J., lays down the rule as follows: “ In the case of a check, the holder does not lose his remedy against the drawer by reason of non-presentment, within any prescribed time after taking it, unless the insolvency of the party on whom it is drawn has taken place in the interval:” Alexander v. Burchfield, 7 Man. & G. 1061.

The only ground on which payment was refused when the check was presented on Monday, being that the teller was in doubt as to the genuineness of the signature of the drawers, how can it he said that presentment on the previous Saturday would have been attended with any different result? If the teller was unable to recognize the signature on Monday, he, manifestly, would have been equally in doubt as to its genuineness on Saturday, and payment would have been refused in one case the same as in the other.

The law made it the duty of the drawees to know the signatures of their depositors, the drawers. First National Bank of Quincy v. Ricker, 71 Ill. 439. Appellants were not bound to furnish proof of its genuineness, nor were they bound after once presenting the check for payment, to present it a second time after the drawees had taken time to verify the signature. A presentment of the check while the drawees were still solvent, a refusal of payment upon grounds for which appellants were in no way responsible, followed by protest and notice, fixed the liability of the drawers, and such liability is no way affected by the fact that the drawees subsequently became satisfied of the genuineness of the signature, and would have paid the check had it been again presented before their failure. Had appellants or their agents been notified of the willingness and readiness of the drawees to make payment, possibly a different rule might apply. It might then have been their duty, as an act of good faith to appellees, to send a messenger a second time to the drawees, and obtain the money. As the record stands, however, there is an entire absence of evidence, showing or tending to show, that appellees were prejudiced in the least, in any of their legal rights, by a delay from Saturday till Monday, in presenting the check for payment. We think the jury in finding a verdict for appellees found directly against all the evidence in the case, and for that reason the judgment must be reversed.

The learned judge who tried the case in the court below, adopted a somewhat different view, both of the law and the evidence, from that above indicated, and instructed the jury accordingly. We do not deem it necessary to review the instructions at length. Upon another trial the instructions will be made to conform to the principles laid down in this opinion.

The judgment is reversed and the cause remanded.

Judgment reversed.


author: Murphy, P. J.

text:
    Simeon W. King v. Henry H. Handy et al.
    1. Principal and agent—Signing as agent.—The particular form of executing a contract not under seal, by an agent, is not material if it indicates a ministerial act on the part of the agent. So an order signed “ Simeon W. King, for A. & R.,” is a good execution of the order for the purpose of binding the principal. It is obvious from the signature, that it was neither given nor received as the order of King, but as the order of A. & R.
    2. Parol proof .of agency.—It was competent to show by parol that at the time the order was made, appellant was acting as tne agent of A. & R. in making the order, and so informed appellees.
    Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Hr. J. Lyle King-, for appellant;
    maintained that the memorandum or order was not the basis of the action, the question being to whom, on the evidence, was the credit given, and cited Pentz v. Staunton, 10 Wend. 271; Shattuck v. Eastman, 12 Allen, 374; Doyle v. Teas, 4 Scam. 202.
    By appellant’s manner of signing, an agency was disclosed, and parol testimony was admissible to explain the initials added to the signature: Reed v. Mann, 68 Ill. 206; Mattingly v. Darwin, 23 Ill. 618; Am. Ex. Co. v. Lesem, 39 Ill. 313; Lyon v. Williams, 5 Gray, 557; New England Marine Ins. Co. v. DeWolf, 8 Pick. 56.
    The manner of signing is sufficient to hind the principal: 1 Parsons on Bills and Notes, 91; Long v. Colburn, 11 Mass. 97; Frost v. Wood, 2 Conn. 23; Robertson v. Pope, 1 Rich. 501; Cook v. Sandford, 3 Dana, 237; Kaskaskia Bridge Co. v. Shannon, 1 Gilm. 15; Barker v. Garvey, 83 Ill. 184; Ohio & Mississippi R. R. Co. v. Middleton, 20 Ill. 629; Northwest Distilling Co. v. Brant, 69 Ill. 658.
    Mr. Henry Browne, for appellees;
    that the cause having been submitted for trial without a jury, the Appellate Court will not disturb the finding, except it appears clearly wrong, cited Eastman v. Brown, 32 Ill. 53; French v. Lowry, 19 Ill. 158; Ambs v. Honore, 24 Ill. 122.
    Parol proof is not admissible to show a signing as agent, where the contract contains apt words charging the signer personally: 2 Smith’s Leading Cas. 369; Savage v. Rex. 9 N. H. 263; Mors v. Livingstone, 4 Comst. 208; Fisk v. Eldridge, 12 Gray, 474; H. M. & F. Ins. Co. v. Newhall, 1 Allen, 130; De Witte v. Walton, 5 Seld. 572; Hall v. Cockrell, 28 Ala. 507; Powers v. Briggs, 79 Ill. 493; Burlingame v. Brewster, 79 Ill. 515; Hypes v. Griffin, 11 Chicago Legal News, 33.
    The burden of proof is upon appellant to show that he had authority to contract for his principals: Miller v. Stock, 2 Bailey, 163; 1 Am. Leading Cas. 766.
    . Appellees could sue for the value of the abstract, even though it had not been delivered: Wade v. Moffett, 21 Ill. 110; Tarling v. Baxter 6 Barn. & Cres. 360; Goddard v. Binney, 115 Mass. 450; Tasker v. Bartlett, 5 Cush. 359; 2 Robinson’s Pr. 419; 2 Chitty on Con. 796.
   Murphy, P. J.

It appear^ in this case that on the 23d day of March, 1874, the appellees were carrying on the business of making abstracts of title to real estate situated in Cook county, from certain indexes to the records of Cook county, Illinois, then in their possession. It also appears that Simeon W. King, the appellant, was an attorney at law, practicing his profession in the city of Chicago, in said county, and that sometime about the 7th day of that month, Messrs. Augur and Robbins carne to his office, entire strangers to him, to get some professional business transacted by him. A business acquaintance appears to have ensued, during which Messrs. Augur and Robbins informed him, that they were buying out the interest of the Rosett heirs to certain real estate in Cook county, and of the value of $200,000, and that it would be necessary to procure an abstract of the title to such property; a necessity which appellant appears to have recognized in his interviews with them. On the 23d day of March, 1874, Augur and Robbins directed him, appellant, to procure for them such abstract, when in pursuance of such direction he called upon appellees, informing them at the same time, as he testifies, that he came there in the interest and on behalf of Augur and Bobbins, and that whatever he did in respect to the obtaining an abstract was for them; after which the appellees told him to sign an order, and it would be all right. He thereupon gave appellees an order for an abstract in the following words, namely:

“ Chicago, March 23, 1874.

“ Messrs. Handy, Simmons & Co.: Make an examination, according to the indexes in your possession, to the records in Cook county, Illinois, of deeds, judgments, and tax sales of the title to the following described land in Cook county, Illinois. Prem. described in mem. left. See order. Estimated cost, §325. (Signed) Simeon W. King, for A. & B.”

It appears that on completing the abstract, appellees presented their bill therefor to appellant and demanded payment, which being refused, they brought suit therefor in the Superior Court of Cook county, which at the April term of that court, for the year 1878, a jury being waived and the cause submitted to the court for trial, resulted in a judgment against the appellant for the sum of two hundred and ninety-one dollars, from which judgment he prayed an appeal to this court, and brings the record here for reversal, and assigns several errors, the first and second of which raise all the questions presented by the record.

It is insisted by the appellant, that upon the facts as submitted to the court below, the finding and judgment should have been in his favor and against the- appellees. He insists that in the absence of extrinsic evidence, the palpable meaning of the instrument, that is, the' order by which his liability is sought to be established, is to bind Augur & Bobbins, and not •him. That the fact of his acting in a representative capacity is patent, and that by no fair rule of construction can the instrument be made to establish a liability against him personally. But that the signing “ Simeon W. King, for A. & B.” is capable of but one construction, which is, that he is not principal in the transaction of obtaining the abstract, but agent, and that, as a consequence, the appellees could not have been misled, and insists that the credit, as matter of fact, was given to Augur & Robbins. Whilst it must be admitted that the authorities are in conflict upon this question, and that the conflict is irreconcilable, it is believed the weight and current of authority, and the reason for the same, are obviously one way.

For the above proposition of the appellant there is high authority. In Story on Agency, at section 275, the learned author says “ That if an agent should make a note in which he should say, I promise to pay,’ etc., and sign it A. B. for O. D. (the principal), the question would arise whether he was personally bound or not upon the instrument in that form. We have already seen that it has been held that in such a case he is not personally bound if_he has authority to sign the note from 0. D.” This text is fully sustained by the case of Rice v. Gove, 22 Pick. 158, and Long v. Colburn, 11 Mass. 97.

It is not perceived how a lack of authority from Augur & Robbins could aid the appellees in this action; the suit being-in assumpsit, the declaration being the common counts only.. For if the appellant’s liability is sought to be established on the ground that he held himself out to the appellees as the-agent of Augur & Robbins, when in fact he was without such authority, then such an act was a fraud, and the appellant would be liable to the appellees in an action on the case, but not in assumpsit. So that if in law his action was that of an agent- and not of a principal, his lack of authority would not enable-the appellees to maintain this action.

The particular form of executing a contract not under seal,, by an agent, is not material if it indicates a ministerial act on the part of the agent. It becomes necessary, therefore, to-inquire whether from the order itself it appears that the signer was giving form and effect to the order of the principal; or superadding a personal liability or obligation on the part of the signer. The form of the execution of the instrument is that of an act done in behalf of another. The order is signed Simeon W. King for A. and R.” This in a contract not under seal, is clearly a good execution of the order for the purpose of binding the principal. It is obvious from the signature that it was neither given nor received as the defendant’s order, but as the order of Augur & Bobbins. This interpretation of the order is greatly strengthened by the showing made by the appellant, namely, that when he called upon the appellees, and was about to make the order in question, he fully made known and explained to them at the very time of, and constituting a part of, the same transaction, that he was there simply as agent and attorney for Augur & Bobbins, and not in his individual capacity. From which the inference is irresistible, that the initials “A. & B.” attached to appellant’s name, was well understood by the appellees at the time, hence no further necessity existed for explanation to them.

So that in the light of these facts and circumstances, we cannot doubt but that at the time of this transaction it was well understood by the appellees as well as the appellant, to be a transaction with Augur & Bobbins, and not the appellant. It is urged by the appellees that the parol proof made by the appellant in the court below -was incomj)etent, and as a consequence should not have had any influence on the mind of the court below in determining the question of individual liability on the part of appellant. The answer to this objection is to be found in the case of the Ohio and Mississippi Railroad Company v. Middleton, 20 Ill. 629, which is full to the point, and sustains the competency of such proof. But if it were necessary that appellant should show his authority to act for Augur & Bobbins in the matter of obtaining this'abstract, we think that fact sufficiently appears from this record. Appellant testifies that at his office, before he called upon appellees, they, Augur &'Bobbins, informed him that they needed such abstract, and desired to have him obtain one for them. He testifies that it was in pursuance of this request that he called upon appellees. This testimony is uncontradicted, and appears to be sufficient to authorize appellant to call and order the abstract made for them, which, as we think, he did. Having so exercised such authority as to mislead no one, but, as we have seen, disclosed at and before the giving of the credit, as well by the manner of signing the order as by parol proof of the precise capacity in which he was acting, we can see no reason in law or justice why he should be held bound .personally. The learned judge who presided at the trial below took a different view of the law of the case, and rendered judgment in favor of appellees and against the appellant, which we think was error. For which the judgment of the court below is reversed, and the canse remanded.

Judgment reversed.


text:
    George A. Marsh, Impl’d, etc. v. The Thompson National Bank.
    1. Guaranty of note—Authority of partner to guarantee in firm name.—A partner has no authority by virtue of the partnership relations to sign the firm name for any purpose not connected with the partnership business, and he cannot, without express authority from his partners, bind the firm as guarantors of commercial paper not given in the course of the partnership dealings.
    2. Rights of bona fide holders—Presumption.—Third persons becoming holders in good faith of negotiable paper executed by a firm, are entitled to the presumption that such paper was executed in the course of the partnership business, and upon competent authority, unless notified to the contrary, or put upon inquiry as to the want of power in the partner to bind his firm.
    3. Notice of want of power.—If on the face of the paper it appears that the firm purports to execute, it not as a principal, but as a mere stfrety or guarantor for some other person, the party taking the paper has actual notice of the fact that it is not signed in the ordinary course of the partnership business, and he must at his peril ascertain that there was a special authority given the partner to use the firm name, as such guarantor, or that the paper was in fact given in the course of the partnership business.
    4. Individual note of partner.—So, where a note was signed by one partner in his individual name, and by him guaranteed in the firm name, the character in which he undertook to bind his firm appeared on the face of the paper itself, and a subsequent holder of such note takes it with notice that he was seeking to hind his firm as guarantors, and that such undertaking was not in the course of the partnership business.
    5. Ratification by firm—Waiver of protest is not.—The fact that the other member of the firm, when the note was presented for payment, endorsed thereon a waiver of notice, protest, etc., for the purpose of saving expense, cannot be considered as a ratification or adoption by the firm of the unauthorized act of the partner in making such guaranty; nor is the failure to make prompt denial of firm liability, on such note being presented for payment, sufficient to establish a ratification, or an admission of liability.
    Appeal from the Superior Court of Cook county; the Hon., Joseph E. Cast, Judge, presiding.
    Mr. Wirt Dexter and Mr. Joi-m J. Herrick, for appellants;
    that a partner has no authority to bind the firm as guarantors or sureties on commercial paper, cited Parsons on Partnership, 237; 1 Parsons on Notes and Bills, 140; Stall v. Catskill Bank, 18 Wend. 477; N. Y. F. Ins. Co. v. Bennett, 5 Conn. 574; Mauldin v. Branch Bank, 2 Ala. 502; Sweetser v. French, 2 Cush. 314; Sutton v. Irwin, 12 S. & R. 13; Tompkins v. Woodyard, 5 W. Va. 216.
    If it appears upon the face of the note that it was signed by a firm as guarantors merely, this is notice to any who may take it that it was given out of the course of the partnership business, and no recovery can he had thereon without proving the assent of the firm thereto: 1 Parsons on Notes and Bills, 140; Sweetser v. French, 2 Cush. 314; Hamill v. Perris, 2 Penn. 177; Duncan v. Lowndes, 3 Camp. 478; Tompkins v. Woodyard, 5 W. Va. 216.
    Mere failure to deny liability is not a ratification: Eliott v. Dudley, 19 Barb. 326; Mareen v. Mack, 10 Wend. 463; Reuben v. Cohen, 48 Cal. 545; McKinny v. Brights, 16 Pa. St. 404; Hortons v. Lewis, 6 Leigh, 60; 1 Am. Leading Cas. 719.
    Mr. Frederic Ullhann, for appellees;
    as to ratification by appellant, contended that where an agent exceeds his authority, the principal, on information, should repudiate the action or he will he considered as having ratified it, and cited Ward v. Williams, 26 Ill. 447; Searing v. Butler, 69 Ill. 275; Cairns v. Bleeker, 12 Johns. 300; Foster v. Rockwell, 104 Mass. 167; Commercial Bank v. Warren, 15 N. Y. 577.
   Bailey, J.

This was a suit in assumpsit brought by appellee against appellant, Moses H. Goodrich and John W. Clampitt, on a guaranty of a promissory note. Summons was served on appellant and Goodridge, and returned not found ” as to Clampitt. Goodridge failing to appear was defaulted. Appellant plead the general issue verified by his affidavit, and on trial before the court, without a jury, the issue was found for appellee, and judgment rendered in its favor against appellant and Goodridge for $366.40 and costs. The only question presented by the record, is whether appellant is liable on said guaranty.

The evidence shows that at the time of the transaction in question, appellant and Goodridge were partners, trading and doing business under the firm name of Marsh & Goodridge. On the 9th day of October, 1875, Goodridge executed to Clampitt, who was his brother-in-law, for a consideration having no relation to the partnership business, his individual promissory note for $320, payable to the order of said Clampitt ninety days after date. This note was endorsed in blank by Clampitt, and on the back of it was placed a guaranty of prompt payment at maturity, in the handwriting of Goodridge, and signed by him with the firm name of Marsh & Goodridge, and also by Clampitt. The note thus endorsed and guaranteed was negotiated by Clampitt to appellee.

There seems to have been an express agreement between appellee and Goodridge, against the use of the firm name ,as security for any person outside of the firm, and there is no evidence of any express authority from appellant to his co-partner, to use the firm name for the purpose of guaranteeing the paper in question.

The law is well settled that a partner has no authority by virtue of the partnership relation, to sign the firm name for any purpose not embraced in the partnership business, and as a consequence he cannot, without express authority from his firm, bind the firm as guarantors or sureties on commercial paper not given in the course of the partnership dealings. It is no part of the ordinary business of a mercantile firm to execute accommodation paper, or to become sureties or guarantors for third persons, or to pay the private debts of the individual partners, and, of course, there is no implied authority for one member to guarantee, in the name of the firm, paper in which the partnership has no interest.

Unquestionably third persons . becoming endorsees, in good faith, of negotiable paper executed by a firm are entitled to the presumption that such paper was executed in the course of the partnership business and upon competent authority, unless notified to the contrary, or put upon inquiry as to the want of power of the partner executing it, to bind his firm. If, however, it appears on the face of the paper that the firm purports to execute it, not, as a principal, but as a mere surety or guarantor for some other person, the party taking the paper has actual notice of the fact that it is not signed in the ordinary course of the partnership business. He must, therefore, at his peril, make the necessary inquiries and ascertain that there was some special authority to the partner signing, to sign the partnership name as such sureties or guarantors, or that the paper was in fact given in the course of the partnership business.

In this case the character in which Goodridge undertook to bind his firm appeared on the face of the paper itself. Appellee, in taking it, had notice that he. was seeking to bind his firm as guarantors, and that such undertaking was not in the course of their partnership business. An attempt, however, is made to establish a subsequent ratification by appellant. On ' the day of the maturity of the note, one Heed, .the broker who negotiated it for Olampitt, and one Brewster, an agent of appellee, presented the note to appellant for payment. This seems •to have been the first knowledge appellant had of its existence. At this interview, as related by appellant in his testimony, appellant told Heed and Brewster that he knew nothing at all about the existence of the note, and that it was a surprise to Mm; that while he did not deny Goodridge’s signature of the firm name, the note had nothing to do with the firm, and was undoubtedly given by Goodridge for his brother-in-law; that Goodridge had gone away, and as appellee presumed, had forgotten the note; that he had no idea but that Goodridge would fix it up, and advised them to write to him about it ; that there was no use of making costs of protest and that he would waive protest. Appellant thereupon indorsed on the note a waiver of protest, and signed to such waiver the firm name. In answer to the question: “ What did you say as to whether you were liable upon it?” he said: “ I do not think I should have decided the question whether I was liable or not, because I do not think I knew whether I was liable or not.”

Heither Reed nor Brewster is able to state even the substance of what was said at this interview, but say he did not deny his liability on the note, and that they came away with the impression that the note was all right. These witnesses, however, do not deny the substantial accuracy of the account of the interview given by appellant. They do not deny that appellant claimed to be ignorant of the note until it was shown to him by them, or that he told them that it was G-oodridge’s matter, and had nothing to do with -the firm business.

We are unable to perceive how the facts here stated can be held to amount to a ratification or adoption by appellant of the unauthorized act- of his co-partner. Such effect certainly cannot be given to the fact that appellant, for the purpose of saving expense, was willing to waive, and did waive on behalf of his firm, protest of the paper. Protest would have been simply evidence of presentment, demand and refusal of payment, and notice thereof to appellant’s firm, and a waiver of protest was simply a stipulation that appellee might omit that formality, and still be in the same plight as though it had been observed. If any further effect is to be given to the stipulation, it should be held to be rather a denial than an admission of liability, for it gave appellee the benefit without formal proof, of a demand and a refusal by appellant to make payment. At any rate, we are unable to perceive that a waiver of protest is in any view inconsistent with a denial of liability.

¡Nor do we think the fact that appellant did not in terms deny his liability on the note, sufficient to establish a ratification. Mere silence would not have been a ratification. In Reubin v. Cohen, 48 Cal. 545, it was held that the mere fact that a partner,- upon being informed that his co-partner had given a firm note for his individual debt, did not deny his liability thereon, did not per se amount in point of law to a ratification or adoption of the note, though it might be a circumstance tending to show assent. In this case it is true, appellant, while he did not admit his liability, did not assert in terms his non-liability. He did, however, assert the facts which went to establish his exemption from liability. He asserted, in substance, that the guaranty was an unauthorized use of the firm name by his co-partner, in a matter outside the firm business. This was tantamount to saying that the guaranty was not binding on the firm. Appellant admits that he did not decide the question of his liability, because he did not know whether he was •liable or not. This may well have been. His liability depended upon questions of law as well as of fact, and he may well have felt disqualified to decide the legal propositions involved. All he could do, and all he was called upon to do, was to assert the facts bearing upon the question of his exemption from liability, and his doing so was a sufficient denial of liability.

Some evidence was introduced with a view of attempting to charge appellant with knowledge of the use being made by Goodridge of the firm name at the tizne of the execution of the guaranty in question.- It is shown that Goodridge, on two or three prior occasions, had given similar notes, and had given firm checks in payment óf the same, and that a memorandum of such checks was written on the stub of the firm checkbook. It appeaz-s, however, that each partner had the right to draw checks on the firm account as he might need money for his private purposes; and we fail to find anything in these memoranda on the stubs in the check-book giving any indication of the purposes to which Goodridge applied the money thus drawn. Witness Eeed testifies to having gone several times to the place of business of Marsh & Goodridge, to see them in relation to such previous notes given by Goodridge, and while he swears that he thinks appellant must have known of the existence of said series of notes, he entirely fails to recollect any occasion on which any of said notes were shown by him to appellant, or when anything was said by him to appellant in relation thereto, and is unable to state any fact upon which such opinion is based.

After carefully considering all the evidence in the case, we fail to find any warrant for the judgment of the court below. It was against the evidence, and accordingly the judgment must he reversed and the cause remanded for another trial.

Judgment reversed.


text:
    Ellen F. Sterl v. Alexander Sterl.
    1. Divorce—Granted on cross-bill of non-resident defendant.— Where a party complainant, who has resided in this State, over one year, files his bill for divorce, the defendant, though a non-resident, may file a cross-bill in said cause, and pray therein for a divorce from the complainant, although she has not resided in this State for more than a year prior to so suing for divorce.
    2. Nature of cross-bill.—A cross-bill being considered as a defense to the original bill or a proceeding necessary to a complete determination of a matter already in litigation, the complainant is not required, as against the complainant in the original bill, to show any ground of equity, in support of the jurisdiction of the court.
    Appeal from the Superior Court of Cook county; the Hon. S. M. Moore, Judge, presiding.
    Messrs. Chetlair & Gregory, for appellant;
    that the court acquired jurisdiction of the cross-bill by virtue of its connection with the subject matter of the original suit, cited 2 Barb. Ch. Pr. 485; Clark v. Mathewson et al. 12 Pet. 164; Wickliffe v. Clay, 1 Dana, 589.
    A cross-hill is an adjunct of the original cause; is generally considered a defense, and the two taken together constitute but one cause: 2 Barb. Ch. Pr. 482; Mitford & Tyler’s Eq. Pl. 179; Story’s Eq. Pl. § 399; Dober v. Potman, Hardn’s R. 160; Kemp v. Mackrell, 3 Atk. 812; Nelson et al. v. Dunn et al. 15 Ala. 501; Cartwright et al. v. Clark, 4 Met. 104.
    A cross-bill must seek equitable relief, and be confined to the subject matter of the original suit: 2 Barb. Ch. Pr. 488; Story’s Eq. Pl. § 398; Calverly v. Williams, 1 Ves. Jr. 211; Tobey et al. v. Foreman, 79 Ill. 489; Thompson v. Shoemaker, 68 Ill. 256.
    The original and cross-bill are distinct causes for the purpose of a hearing: 2 Barb. Ch. Pr. 493; Myers et al. v. Manny et al. 63 Ill. 211; Beauchamp et al. v. Putnam, 34 Ill. 378; Field v. Schieffelin et al. v Johns. Ch. 252.
    If the cross-bill is taken as confessed, it may be used as evidence against the complainant in the original suit: 2 Barb. Ch. Pr. 127; White v. Buloid, 2 Paige Ch. 164.
    A plea to the jurisdiction in a cross-bill will not lie, unless filed by a person not capable of suing alone: Mitford & Tyler’s Ch. Pr. 377; 2 Barb. Ch. Pr. 490; Story’s Ed. Pl. § 832.
    In the Federal courts a cross-bill will be sustained between citizens of the same State, although an original suit would not lie except between citizens of different States: Schenck v. Peay, 1 Woolw. 175; Clarke v. Matthewson et al. 12 Pet. 164; Cross v. De Valle, 1 Wall. 1; Freeman v. Howe et al. 24 How. 450; Minnesota Co. v. St. Paul Co. 2 Wall. 633; Dunn et al. Clarke et al. 8 Pet. 1.
    Mr. L. M. Lange, for appellee;
    that appellant being a nonresident, is not entitled to a decree of divorce, cited Rev. Stat. 1874, 420, §§2, 5; Way v. Way, 64 Ill. 406.
    A cross-bill is to be deemed an original suit: Thompson v. Shoemaker, 68 Ill. 256; Myers et al. v. Manny et al. 63 Ill. 211; Welf. Eq. Pl. §230; Story’s Eq. Pl. § 629.
    H o divorce can be granted upon a general charge of adultery; the time and place of committing the act should be stated with reasonable certainty: Kane v. Kane, 3 Edw. Ch. 389; Morrell v. Morrell, 1 Barb. 318; Bishop on Marriage and Divorce, 604.
   Murphy, P. J.

It appears that on the 19th day of January, 1875, appellee filed his bill against the appellant for divorce, in the Superior Court of Cook county, and with his bill he filed his affidavit of the non-residence of the appellant, in pursuance of the statute in such case made and provided. That such proceedings were thereafter, from time to time had, as that on the 12tli day of April, 1875, a decree of divorce was entered between the parties, the appellant being constructively notified by publication in a newspaper. It also appears that on the 25th day of October, 1877, the appellant appeared in said court and filed her petition in pursuance of the provisions of section 19, chap. 22, of Hurd’s Revised Statutes of 1877, to have said decree opened, and to be allowed to file her answer, and defend the suit; which was granted by the court, and thereupon she filed her answer to his original bill, and on the 26th day of November, 1877, filed her cross-bill in'the cause, charging the appellee with desertion, and also with adultery committed in the State of Illinois.

That afterwards, on the 26th day of December, 1877, the appellee filed his replication to the answer of the appellant to said original bill and his demurrer to the cross-bill. The first ground of demurrer assigned, being that “ it appears from said cross-bill that the complainant has not, for one whole year next before filing the same, resided in the State of Illinois.” That on the 30th day of March, 1878, the court below sustained said demurrer and dismissed the cross-bill, to which appellant excepted and prayed an appeal to this court, which being granted, she brings the record here, and assigns for error the sustaining of said demurrer and dismissing the cross-bill. It apjiears that prior to filing the original bill, the complainant therein had actually resided in Chicago for a period of two years, away from his wife, appellant, who continued her residence in New York city, where she still appears to reside. Upon these facts, a question of law is raised which we are called upon to decide.

Section 2, chapter 40, Revised Statutes 1877, is as follows: “No person shall be entitled to a divorce in pursuance of the provisions of this act, who has not resided in the State one-whole year, next before filing his or her bill or petition, unless the offense or injury complained of was committed within this State, or whilst one or both of the parties resided in this State.” It is insisted by the appellee, that under the provisions of the above section of the statute the appellant had no right to file her cross-bill, praying amongst other things, for a divorce, for the reason that she was not a resident of this State, and that fact appearing on the face of her cross-bill, he could avail himself of such fact of non-residence by way of dumurrer. We have been referred to no case in this State involving the question here involved, nor are we aware of any such having arisen. The case of Way v. Way, 64 Ill. 406, is cited by counsel for appellee as sustaining the decree of the court below; but we think it fails to do so. In that case the complainant was not a residént of this State at all, and of course the court could not take jurisdiction in such a case, and having no jurisdiction, it ■’ follows it could make no binding decree. But just at this point the analogy between the two cases ceases, for in this case the jurisdiction of the court over the subject matter of the controversy and the parties, is unquestionable. It is a familiar principle of law that a court of equity having acquired jurisdiction of the parties and of the subject matter of the suit will retain and exercise such jurisdiction, until the equities of all the parties are meted out to them. In this case the jurisdiction of the court is invoked by the ■ appellee, he having as he had a legal right to do, filed his bill ■ against appellant praying relief and summoning the appellant into the court. When she is thus brought in, and having .responded to the claims of the appellee by answering his bill •of complaint, being, as it were, then forced into the court, submits herself to its jurisdiction, and asks- the court to grant to her certain equitable rights, to which she claims to be entitled, then it is that the appellee challenges the jurisdiction of the court to grant to her any equitable rights, but continues to clamor for his. This position is unconscionable and indefensible upon the principles of equity. But we are told, and it is urged by the appellee; that by reason of the arbitrary provisions of the statute, there is no escape from this dilemma, and that, as a consequence, the appellant is in the court for the purpose oí receiving its mandate, and yielding obedience to its orders, but without any equitable rights which the .appellee is bound to respect, for the reason, as he claims that, she resided in Hew York, and not in Illinois, and notwithstanding she is dragged into the court, at the suit of appellee, and, as may be presumed, against her will. We think that by the plainest principles of equity the appellee is, under such circumstances, precluded from questioning the jurisdiction of a court which he has himself invoked; and that the court having acquired jurisdiction of the subject matter, and the parties to the suit, at the instance and by the prayer of the appellee, he cannot be heard to question the jurisdiction of the court to hear, consider and determine all the equities of the parties to the end that complete justice may be done to all in the same case. There is another ground on which we think the appellant had the undoubted right to file her cross-bill, under all the circumstances of this case, and that is as one of the means or methods of defense to the original bill. “ A cross-bill being generally considered as a defense to the original bill or as a proceeding necessary to a complete determination of a matter already in litigation, the complainant is not, at least as against the complainant in the original bill, obliged to show any ground of equity to support the jurisdiction of the court. It is treated, in short, as a mere auxiliary suit, or as a dependency upon the original suit.” 2 Barbour, Chancery Practice, 131, and authorities there cited. To the same effect is the holding of the court in Field v. Schieffling, 7 Johnson Ch. R. 307. This view seems well sustained by other elementary writers, as well as adjudged English cases. If then, the right to file a cross-bill be included in the right to make a full and complete defense to the allegations contained in the original bill, we think no one will be found who will deny her that right; so that in either view of the case, we think appellant had the clear right to file her cross-bill notwithstanding she was at the time, a resident of Hew York, and not of Illinois. We have not coúsidered any of the grounds of demurrer, except the one first mentioned, the lack of jurisdiction, but the bill being properly filed, as we have shown, if any imperfection exists in the bill, it could be cured by amendment, which, of course would be allowed on application to the court below. We think the demurrer should have been overruled. The learned chancellor who tried the case in the court below, took a different view of the law, which we think is error. For which error the decree sustaining the demurrer to and dismissing the, cross-bill, is and the cause remanded.

Decree reversed.