text:
    Marjorie Fairfield, Appellee, v. Union Life Insurance Company, Appellant.
    Gen. No. 20,966.
    1. InsuRance, § 868

      —when falsity of answers in application must be pleaded and proved. A condition in a policy of life insurance that the policy “shall not take effect until the first premium has actually been paid to and accepted by the company, and the policy actually delivered to and accepted by the insured while in good health,” is a matter of defense and not a condition precedent to be averred and proved in order to maintain an action on the policy, so that where the defense is grounded on the falsity of answers made in an application which is made part of the policy, such falsity, to be available in defense, must be averred and proved by defendant, whether such condition in the policy be a representation or a warranty.
    2. Insurance, § 854

      —when provision in application requiring good health and acceptance of premium not condition precedent. A condition in an application for a policy of life insurance for verifying the truth of the answers therein made by the applicant and providing that the policy shall not take effect until the first premium is accepted by the company, and the policy delivered, to insured “while in good health,” is intended to safeguard insurer against the contingency that in the interim between the acceptance of the risk and the delivery of the policy insured’s health may become impaired, hence such a condition has no application where the contingency guarded against never happened.
    3. Insurance, § 763

      —how incontestable clause should be construed. Provisions in policies of life insurance that after a named time the policy in question shall be incontestable are reasonable and must be strictly construed against insurer, as such provisions inure to the benefit of insured and are intended to induce persons to become policy holders.
    4. Insurance, § 763

      —incontestable clause as waiver of avoidance on other grounds. A provision in a policy of life insurance that “this policy is incontestable after one year, except for the nonpayment of premiums,” precludes insurer, after the time fixed, from avoiding the policy on any ground except that expressly reserved, the language being Clear and explicit, because any other holding would destroy the value of such a provision.
    5. Insurance, § 740

      —how provision for extension of time for payment of premium, should be construed. A provision in a policy of life insurance that insurer may have an extension of thirty days in which to make payment of premiums after the time fixed by the policy for such payment, on condition that insured pay five per cent interest on the amount of such premiums during such extension, is a provision intended for the benefit of insured and intended to induce him to become such.
    6. Insurance, § 763

      —when the taking effect of incontestable clause not postponed. In an action to recover on a policy of life insurance containing a provision making the policy incontestable after the expiration of one year and a provision that on certain conditions insured might have an extension of the time fixed by the policy for payment of premiums, where the second payment of premium was tendered after the time fixed in the policy for such payment but within the extension' allowed thereby, and more than one year after the payment of the first premium, defendant’s contention that as he took advantage of the extension of time for payment of premium allowed by the policy the taking effect of the incontestable clause was also postponed, hence that at the time of such tender such clause had not taken effect, held negatived by the facts that up to the time of such tender defendant had taken no steps to avoid the policy, and that during the period of extension allowed by the policy defendant wrote insured urging him to make payment before such extension period expired in order to avoid lapse, such letter amounting to an affirmation that the policy was still in force.
    Error to the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed December 8, 1915.
    Statement by the Court. This is an action in assumpsit brought by Marjorie Fairfield, appellee (plaintiff below), against the Union Life Insurance Company, appellant, (defendant below), upon two insurance policies issued on December 7 and 27, 1910, respectively, by the defendant to Edward B. Fairfield, husband of the plaintiff, and to whom we shall hereinafter refer as the insured.

      The declaration consisted of three counts: The first declared on policy #2482, dated December 7, 1910, in the sum of $5,000, the insured being Edward B. Fairfield and the beneficiary Marjorie Fairfield, under the name of Marjorie B. Fairfield. It set forth the usual allegations, viz., the issuance of the policy, its terms, payment of the premium, death of the assured, and the giving of notice and making proof thereof to the company. The second count was, in all respects, identical with the first, save that it declared upon policy #2706 dated December 27, 1910. The third count was a joint count declaring on the two policies, making the same allegations as to the two as were previously made as to each ,one. Both policies were attached to the third count and made a part thereof.
    To these counts defendant filed a general and special demurrer, the special grounds (of the demurrer) being, in substance, that plaintiff had not averred performance of all conditions precedent to the recovery on the contracts or shown a waiver thereof by the defendant. Upon the demurrer being overruled, a plea of general issue was filed, with notice of special defenses. The substance of the special matters of defense as set forth in defendant’s brief was as follows: “That the con-" tracts or policies of life insurance never came into existence by reason of the fact that a certain condition precedent was not complied with, to-wit, the acceptance of the policy by the insured and the payment of the premium by the insured while the insured was in good health, and second, that the policies were not delivered to the insured or accepted by the insured while he was in good health in accordance with the terms of the policy; that the insured represented in the application that he had never been refused insurance by any other company prior to applying to the Union Life Insurance Company for insurance, whereas he had been refused insurance by a number of companies and as late as a month prior to making application to the defendant company herein, and that not only that, but that he knew he had been refused insurance and had wilfully and fraudulently denied the fact in his application to the defendant company. Further, that the assured knew that he was not in a proper state of health and made various misrepresentations as to his condition of health, as to his use of liquors, etc.”
    Upon the trial of the case plaintiff introduced evidence in support of the allegations set forth in her declaration. At the close of the plaintiff’s testimony defendant moved for an instructed verdict, on the Same grounds as were set forth in its special demurrer, viz., that plaintiff had failed to prove all the conditions precedent to a recovery, which motion was denied. Defendant then offered evidence in support of its plea of general issue and the special defenses therein set forth. All its tendered evidence was excluded by the court, except certain documentary evidence, consisting of defendant’s exhibits 2, 3, 4 and 5, being the applications in connection with the policies sued upon, the statements to the medical examiner and a notice of change of beneficiary, respectively.
    At the close of all the evidence defendant renewed its motion for an instructed verdict, which was again denied. Plaintiff then tendered a motion to instruct the jury to return a verdict for the plaintiff and to assess her damages in the sum of $11,006.95, which instruction was given by the court over the objection of the defendant. A verdict was returned in accordance with said instruction, and upon such verdict the judgment was entered, to reverse which defendant has prosecuted this appeal.
    Eastman & White, for appellant; Ralph R. Hawxhurst, of counsel.
    Charles J. O’Connor, R. Harold O’Connor and Edward C. Kesler, for appellee.

      See Illinois Notes Digest, Vole. 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 Pam

delivered the opinion of the court.

Defendant assigns five reasons in support of its contention for reversal, viz.:

“(1) That the court committed error in refusing to allow the defendant to prove the fraud practiced by the plaintiff in obtaining the policies, through the false representations made in the applications and which became warranties under the law as hereinafter shown.

“ (2) That the court erred in refusing to instruct a verdict for the defendant, both at the close of the plaintiff’s case and at the close of all the evidence, in that the plaintiff failed to prove as a part of its case a condition precedent to the right of recovery, to-wit, that the insured received the policies and paid the first premium while he was in good health in accordance with the terms of the contract and his express agreement in the application.

“ (3) That the court erred in ruling that the incontestable clause prevented any contest being made on the policy in that the incontestable period under the proper construction here contended for had not expired, the second premium being tendered only during the days of grace and never being accepted by the company.

“ (4) That the court erred in instructing a verdict for the plaintiff for the reasons above set forth and for the further reason that the question of compliance with the condition precedent is a matter of fact for the jury, regardless of any other evidence offered and under the general issue that fact as well as other facts were put in issue which should have gone to the jury, as hereinafter commented upon.

“(5) That the court erred in overruling the defendant’s motion in arrest -of judgment in that the declaration failed to allege the performance of the condition precedent heretofore suggested.”

These contentions of the defendant depend, first, upon a clause in the policies which is in part as follows:

“The policy shall not take effect until the first premium has actually been paid to and accepted by the company or its authorized agent and the policy delivered to and accepted by the insured while in good health;” and further, upon that part of the applications which" under the terms of the policies is made a part thereof, and which is as follows:
“That every statement and answer herein above contained, and every statement I make to the company in this application is true, that this application shall be a part of the policy issued hereupon, and that such policy shall not take effect unless the first premium shall be actually paid in cash while I am in good health.”

Defendant contends that by this provision in the policies and in the applications, before plaintiff could recover, she had first to allege in her declaration and prove as part of her case, as a condition precedent, that the insured at the time the first premiums were paid and the policies delivered was in good health.

As against this contention of the defendant, plaintiff urged, first, that these provisions in the policies and in the applications were not conditions precedent, and furthermore, that even though they were, under the facts in evidence, such defense could not be made because of the incontestable clause in each policy, which was as follows: “This Policy is Incontestable after one year, except for the non-payment of premiums.” To meet this claim, defendant urges that the plaintiff was not entitled to the benefit thereof. This, however, is a separate contention which will be considered later in the course of our opinion.

In passing upon the various contentions of the parties, it is necessary to set forth certain essential facts in evidence concerning which there is no dispute.

There were two policies of insurance, each for $5,000, issued on the 7th and 27th of December, 1910, respectively. The premiums for the first year, amounting to $381.70, were paid. In July, 1911, the insured’s daughter was named as beneficiary in place of his wife, but in October following, this action was rescinded, leaving the wife as the beneficiary. In November, 1911, defendant mailed to the insured notices for the payment of the annual premiums due on these policies. In the instance of policy number 2482, the notice read in part as follows:

“You are hereby notified that the annual payment of $190.85 will be due the 7th day of December, 1911, and must be paid at the Home Office of the Company in Chicago, Ill., or to our authorized agent in exchange for the Company’s official receipt, duly countersigned by A. E. Fowler.”

The other notice was the same, save as to the maturity of the payment, which in the instance of policy number 2706 was December 27th. On December 30, 1911, the following letter was sent by the defendant to the insured:

“The annual premium on your policy # 2482 for $190.85 was due Dec. 7th. Please give this premium your candid consideration, as the same will lapse the 7th of next month. To renew thereafter would require your signature to a health certificate, etc., and this we believe you as well as ourselves wish to avoid.
“You realize as well as we do that there is no better asset than a life policy. Aside from the protection you give your family or beneficiary, it is one of the best collaterals as security that you can obtain. While we do not believe it is your intention to drop your policy, we wish to remind you that you may have the matter in mind before the expiration of the 30 days of grace. We cannot insist too strongly on your retaining the same. Should you deem the policy too large for you to carry, we will with pleasure reduce it or change it to any kind of policy you might prefer to carry.
“Please be kind enough to give us your reply, and awaiting the same with your remittance, we remain,
Yours very truly,
A. E. Fowler, Assistant Secretary, W.”

It was stipulated that on or about the 4th of January, 1912, plaintiff had made tender to the defendant of the second year’s premiums, which tender was refused. The insured died on February 22,1912, and the notice and proof of his death were made as required under the policies. All this evidence was offered as part of the plaintiff’s case.

In support of its contention that the first premium must be paid in cash and the policies delivered to the insured while in good health, as a condition precedent, defendant cites some Illinois decisions. Counsel, however, admits that in none of them has such condition in the policies been passed on, but argues by analogy for his contention, viz., that in those cases it is held that the payment of the premium is one of the conditions precedent which must be alleged and proven; that therefore in the case at bar, the payment of the first premium being qualified by the words, “while in good health,” necessarily the condition precedent as to the payment of the premiums carries with it such qualification. An examination of the case of Continental Life Ins. Co. v. Rogers, 119 Ill. 474, which is typical of the Illinois cases cited on this point, shows that the question of the insured being in good health at the time of the payment of the premium and the delivery of the policy was not in issue. However, in that case it was held that the truth of the answers to the questions in the application and which, by the terms of the policy, were made a part thereof, was not a condition precedent which had to be averred and proven. On the contrary, it was there held that to be availed of as a defense, whether they were warranties- or representations, their falsity must be set up and proven by the defendant as a -matter of defense. This principle of law has been announced in previous decisions by our Supreme Court.

One of the clauses relied upon by the defendant is contained in the general provisions appearing on the back of each policy and is expressly made a part thereof. The other provision relied on is contained in the applications. If any reasoning by analogy can be indulged in from this decision, in our opinion it is favorable to the contention of the plaintiff that these provisions did not constitute a condition precedent.

The defendant placed in evidence the applications of the insured for the policies in question and the record of the examination made by its medical examiner in connection with said applications. The obvious purpose of propounding the questions in the applications, and of making a medical examination of the insured before issuing the policies, was to determine his general state of health at that time. That the defendant considered the health of the insured satisfactory is evidenced by the delivery of the policies and the acceptance of the first year’s premiums. The record herein shows that a period of time elapsed between the date of the applications and the medical examination above referred to, and the delivery of the policies. It is fair to presume that this situation arises in almost every instance where the defendant issues a policy. In that interim the insured may have become seriously ill or suffered a severe injury greatly impairing his health. It is therefore fair to presume that the provision that said policy ‘ shall not take effect until the first premium has actually been paid to and accepted by the company and the policy delivered to and accepted by the insured while in good health,” was intended to safeguard the defendant against any contingencies that might arise during such interim, and not as a condition precedent for the plaintiff to aver and prove; and as there is no contention that such contingency has arisen in the case at bar, the provision here under consideration can have no application.

Counsel, however, places great reliance in Anders v. Life Ins. Clearing Co., 62 Neb. 585; but in that case the facts are so completely different from the facts in the case at bar that the ruling of the court therein cannot be held to apply. In the first place, the facts with reference to how the insurance was obtained are different. The provision there under consideration was as follows:

“This policy shall not take effect until the first premium thereon shall have been paid to the company, or to some person authorized by the company to receive it, in accordance with the premium receipt accompanying the same, and while the insured is in good health, as evidenced by health certificates properly executed and furnished to the company.” (Italics ours.)

The court in that case did not hold that as a condition precedent it must be averred and proven that at the time the first premium was paid and the policies delivered the insured was in good health, but that before there could be a recovery, it was necessary to aver and prove that the insured had submitted the health certificates as provided for in the policy. We cannot construe such a holding as supporting the contention of the defendant.

Plaintiff further contends that under the incontestable clause in the policies, if said clause applied, the only defense available was the nonpayment of the premiums. Said clause provided as follows: “This Policy is Incontestable after one year, except for the nonpayment of premiums,” and no doubt was incorporated in the policies as an inducement to secure business, as it could only have been intended to inure to the benefit of the holder of the policy. Such a provision has been held by our courts to be reasonable (Royal Circle v. Achterrath, 204 Ill. 549; Flanigan v. Federal Life Ins. Co., 231 Ill. 399), and must be strictly construed against the defendant.

Defendant contends that the incontestable clause never took effect because the policy was not in force. The essence of defendant’s contention in this regard is, that the incontestable clause was a conditional agreement dependent upon whether or not at the time of the delivery of the policies and the payment of the first premiums, the assured was in good health; that therefore, even though plaintiff was not required to show that he was in good health as a condition precedent, yet such defense having been specially noticed under the general issue, defendant should have been allowed to make proof thereof; that the evidence offered under this defense, but excluded by the court, would have demonstrated conclusively that the' plaintiff could not have shown that at the time the policies were delivered and the first premiums paid, the insured was in good health—a condition precedent to the policies being in force. This same point was passed upon in Mutual Reserve Fund Life Ass’n v. Austin, (73 C. C. A. 498, 142 Fed. 398), 6 L. R A. (N. S.) 1064, in which case the incontestable clause provided for a three-year period, and therein the court said (p. 1065):

“In construing this incontestable clause, we must not lose sight of the fact that it relates, not to the risk at the date of the policy, but at a period three years later, and to a risk that is different in character.
“The agreement concerning the original assumption of risk is distinct and independent from the agreement that the policy, after it has been outstanding three years in the possession of the assured, shall be incontestable. The document contains two separate agreements by the company: (1) To insure conditionally for three years; (2) to relinquish defenses after three years. Each of these forms a part of the consideration for which the assured pays his money. They relate to distinct subject-matter, to different dates. * * *
“The term ‘incontestable’ is of great breadth. It is the ‘policy’ which is to be incontestable. We think the language broad enough to cover all grounds for contest not specially excepted in that clause. The word ‘policy’ may well be taken to mean a formal document delivered by the company, and containing evidence of an obligation to pay. Such a document so delivered is ordinarily contestable, with reference to questions arising in connection with its delivery and payment of the first premium, as well as with reference to statements contained in the application. * * *
“The argument that the policy was not in continuous force is predicated upon an extrinsic fact not appearing upon the face of the policy, to wit, the fact that the assured was not in good health at the date of delivery' of the policy. In setting up, or even in relying upon, this extrinsic fact, the company is contesting its policy as evidence of its obligation. If the company is at liberty to set up this fact after the lapse of more than five years, it is equally at liberty to set it up after the lapse of forty years. Instead of being an incontestable policy, if we adopt the defendant’s argument, the policy is always contestable.”

We unqualifiedly approve of the reasoning of the court in the aforesaid case. The language in the incontestable clause in the case at bar is clear and explicit, and unquestionably provided that after one year, the policy having been delivered and the first premium paid, said policy could not be avoided save for the ground specially reserved, viz., the failure to pay the premiums. To hold otherwise would utterly destroy the value of any incontestable clause.

The defendant further contends that even if said policies were in force, the incontestable clause had not yet taken effect, because plaintiff had not paid the second premiums at the end of the first year. The evidence shows, however, as already stated, that a tender of the premiums due on both these policies was made on January 4th, the insured evidently taking advantage of the provision in the policies permitting one month’s grace in the payment of the premiums after the first, subject to an interest charge of five per cent, per annum. Defendant contends, however, that this act on the part of the insured extended the application of the incontestable clause until after the tender of the premiums. In other words, defendant argues that while the period of incontestability is by the express terms of the policy one year, yet if the thirty days of grace on the payment of the premium is taken advantage of by the insured, the period of incontestability is thereby extended a corresponding period.

This provision whereby the payment of the premiums was extended thirty days must also be considered as an inducement for a person to become a policy holder and intended for his benefit. Moreover, there is a consideration for the extension, viz., the payment of five per cent, interest. There is nothing contained in the language of this provision which will permit of the construction contended for here by the defendant. Counsel depends entirely in his argument upon the fact that because the premium was not paid or tendered at the end of the first year, defendant had the right to refuse it when afterwards tendered, and that such refusal on its part was a notice that defendant intended to avoid said policies. The record is clear, however, that no affirmative act was taken by the defendant to avoid the policies until after the tender of the premiums, which was more than a year after the first premiums were paid and the policies delivered. In the stipulation entered into between the parties at the time of the trial, wherein it was agreed that the tender of the premiums had been made within the period of grace and refused by defendant, there was nothing stated that said refusal was based upon any reason advanced in the contentions of the defendant on this appeal. Moreover, the record shows that after both policies had been in force for more than a year, defendant, on December 30, 1911, wrote the insured reminding him that the period of grace was drawing to a close, that in order to save his insurance he should pay the premiums within that period.

The writing of this letter was an act affirming the policy in question. In fact, nowhere does it appear in the record in this case that any action was taken by the defendant indicating a desire to terminate the policies, until after the tender of the premiums had been made—more than a year after the issuance of the said policies. We cannot, therefore, for any of the reasons advanced, concur in the contention of the defendant that the incontestable clause had not taken effect, but must hold the contrary.

There is the further contention that the court erred in refusing to admit in evidence the proof offered by defendant to show that the answers made by the insured to questions propounded in the applications for policies were false, and the insured having warranted his answers to be true, the insured thereby practiced a fraud, because of which the company had the right to avoid the policies. We having held that the incontestable clause had become effective, such defense was absolutely unavailing, and the evidence to establish the alleged fraud was clearly inadmissible.

Defendant’s further contention that the court erred in instructing the jury to allow interest on plaintiff’s claim is without merit. Finding no reversible error, the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Pam

license: Public Domain

text:
    Thora L. Rathmann, Appellee, v. Charles H. Rathmann, Appellant.
    Gen. No. 20,973.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county, the Hon. Denis E. Sullivan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed December 8, 1915.
    Rehearing denied December 21, 1915.

      Statement of the Case.
    Bill for separate maintenance by Thora L. Rathmann, complainant, against Charles H. Rathmann, defendant, in the Superior Court of Cook county. From a decree in favor of complainant, defendant appeals.
    The decree for separate maintenance was based upon the charge of extreme and repeated cruelty, and that at the time of the decree she was living separate and apart from her husband without her fault. The decree further directed that complainant be allowed the use and occupancy of the dwelling house owned by defendant—then occupied by complainant and her minor children as well as by the defendant—together with all personal property, goods, chattels and effects contained therein; that she also be allowed the use of the building used by defendant as a garage, and seventy-five dollars per month alimony. It also awarded to complainant the custody of the two children, and further ordered said defendant to vacate the room occupied by him in said dwelling house and that he move therefrom.
    Complainant’s bill was filed in June, 1913, wherein it was alleged that she was married to defendant in December, 1907; that she continued to cohabit with him until May 10, 1913; that, they had two children, one five years old and the other sixteen months; that complainant discharged her duties as wife while she lived with defendant, but that defendant, a short time after marriage, commenced a course of cruel, unkind and inhuman conduct toward her, which continued until on or about May 10, 1913, at which time she was compelled to cease her relation with defendant as a wife, although she continued to live under the same roof; that because of defendant’s extreme and repeated cruelty it is unsafe and improper for her and the children to live with him.
    Complainant by her testimony showed that she and the defendant had been living as husband and wife in said dwelling house up to May 10, 1913; that thereafter, because of alleged inhuman treatment on his part, she ceased sustaining the marital relationship with him, although continuing to live under the same roof, each occupying a separate room. While the bill charges failure to properly support complainant, the record is barren of any evidence tending to show that complainant was ever without the necessaries of life. At the time the bill was filed she was living in a home provided by the defendant, and one deemed suitable for them to live in. While there was some dispute as to whether or not the support given her by defendant was suitable and adequate to their condition in life, yet she had the necessaries of life and had the service of a maid up to the time said bill was filed. The only evidence that complainant and defendant were living separate and apart was the testimony that from May 10th, when the complainant ceased living with him as his wife because of cruelty, to June 10th, the date of the filing of her bill for separate maintenance, the complainant and defendant, while living under the same roof, occupied separate rooms. There was no evidence as.to whether or not during this period the parties ate at the same table or met in the family living room or that in any way the relationship was changed, save the fact that they did not occupy the same room.
    Cantwell & Smith and Carey W. Rhodes, for appellant.
    Charles E. Erbstein and Robert R. Jampolis, for appellee.

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

   Mr. Justice Pam

delivered the opinion of the court.

Abstract of the Decision.

1. Husband and wife, § 267 —necessity that decree of separate maintenance he supported hy evidence that parties were living apart. In an action for separate maintenance, a decree in favor of the wife cannot stand unless it appears reasonably as a fact that at the time the bill was filed the parties were actually living separate and apart.

2. Husband and wife, § 267 —when evidence insufficient to establish that parties were living apart. In an action for separate maintenance, a finding that at the time the bill was filed the parties were living separate and apart, held not sustained by the evidence where the record shows that at such time the parties were living in the same house, but where there is no evidence in the record tending to show that their relations were changed further than the fact that they did not occupy the same room.

3. Husband and wife, § 257 —when hill for separate maintenance sufficiently alleges that parties were living apart. In an action for separate maintenance, allegations in the bill examined and held sufficiently to allege that at the time the bill was filed the parties were living separate and apart, in the absence of a special demurrer to such allegations, although such facts are not clearly alleged therein.


text:
    Siegmund Roesner, Appellee, v. C. E. Dellenbarger Company, Appellant.
    Gen. No. 21,003.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed December 8, 1915.
    Statement of the Case.
    Action by Siegmund Roesner, plaintiff, against the C. E. Dellenbarger Company, defendant, in the County Court of Cook county, to recover on a contract of employment. From a judgment for plaintiff for $400, defendant appeals.
    The contract sued on is as follows:

      “Know all Men by these Presents, that C. E. Dellenbarger Company, a corporation, hereinafter called first party, and Siegmund Eoesner, hereinafter called second party, both of Chicago, Cook County, Illinois, entered into the following agreement, this 15th day of October, 1912:
    “First party agrees to hire the services of second party for the period of one year, beginning on the 15th day of October, 1912, and ending on the 14th day of October, 1913, for the following purposes:
    “ (1) Second party is to work in the machine shop of first party, and do all mechanical work, such as experimental, model, tool and die., and all work required by the trade of the company, in a first-class manner and workmanship.
    “(2) If so directed by first party, second party is to superintend the work done in the shop of first party, and take charge of the working force.
    “ (3) Second party is to use his best knowledge and ability in discharging the duties assigned to him by first party.
    “ (4) In consideration of the foregoing, first party agrees to pay the second party the sum of Eighteen Hundred and fifty ($1,850.00) dollars per annum, payable in weekly installments, as follows:
    “30.00 per week for each and every week, for a period covering the first three months, beginning on the 15th day of October, 1912; thereafter, $35.00 per week for each and every week, for a period covering the second three months, beginning on the 15th of January, 1913, and $37.50 per week for every week for the remainder of six months of this contract, beginning on the 15th day of April, 1913.
    “(Signed) C. E. Dellenbarger Co.,
    “By C. E. Dellenbarger, Pres.
    “S. Eoesner.”
    The evidence showed that plaintiff entered upon the employment immediately after the making of said contract, and continued until August 20, 1913, when he was discharged by the defendant; that plaintiff received during that period the sum of $1,360 from the defendant.
    Abstract of the Decision.
    1. Evidence, § 476

      —when number of witnesses may be considered in weighing evidence. The number of witnesses testifying on each side in the trial of an action is a proper but not an absolutely controlling element to be considered by the jury in weighing the evidence.
    2. Witnesses, §253

      —province of jury as to credibility of witnesses. It is the province of the jury to determine the credibility of witnesses and the weight to be given their testimony.
    3. Appeal and error, § 1410

      —when verdict not disturbed as against weight of evidence. Unless the verdict of a jury is clearly and manifestly against the weight of the evidence, such verdict will not be disturbed on review.

      The principal issue was whether or not there were sufficient grounds justifying the discharge of the plaintiff before the expiration of the year for which he had been employed. On this issue there was only one witness for the plaintiff and that was the plaintiff himself* who testified that during the time he was working under said contract he in every respect complied with the terms thereof; that on the 20th day of August, 1913, he was discharged by the president of defendant, without cause; that thereafter he sought employment elsewhere during the remainder of the term of the contract, but without success.
    Defendant, by three witnesses, offered testimony tending to show that plaintiff had repeatedly failed to comply with directions given him by his superiors as to the manner in which to perform his work, wherefore he was discharged. Plaintiff, however, denied ever having received any such directions, save at the time he was discharged.
    West & Eckhart, for appellant.
    No appearance for appellee.

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

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

   Mr. Justice Pam

delivered the opinion of the court.

4. New trial, § 97 —necessity of affidavits to support motion for new trial on ground of newly-discovered evidence. A motion for a new trial on the ground of newly-discovered evidence must be supported by the affidavits of the witnesses by whom it is proposed to prove the matters relied upon, or an excuse shown for not producing such affidavits.

5. New trial, § 102 —when affidavit supporting motion for new trial on ground of newly-discovered evidence insufficient. On a motion for a new trial on the ground of newly-discovered evidence, an affidavit that the witness by whom the party seeking the new trial proposed to prove the matters relied upon as newly-discovered evidence is beyond the reach of the affiant, and further alleging that affiant made “earnest efforts” to secure an affidavit from such witness, is insufficient in that such affidavit does not state specific facts sufficient to enable the court to determine what efforts were made by affiant to secure such affidavit before the witness’ departure.

6. New trial, § 102 —when affidavit supporting motion for new trial on ground of newly-discovered evidence insufficient. On a motion for a new trial on the ground of newly-discovered evidence, an affidavit that prior to and during the trial affiant made “diligent efforts * * * to discover evidence” of the character relied on as newly-discovered evidence, is insufficient in that its allegations are mere conclusions of the affiant and give the court no information from which it can determine whether or not affiant was diligent.

7. Trial, § 155 —when weight of evidence jury question. Where the evidence is conflicting, a question of fact for the jury is presented.

8. Contracts, § 384 —sufficiency of evidence to sustain verdict. In an action to recover on a contract whereby defendant agreed to employ plaintiff at a stated rate of compensation for a named period, in which the defense was that the contract was somewhat modified with the assent of plaintiff, a verdict whereby the jury found that plaintiff never assented to such modification of the contract, held not manifestly against the weight of the evidence.


text:
    Mutual Life Insurance Company of New York v. Louise H. Ritsher and Herbert Hammond. On Appeal of Louise H. Ritsher, Appellant, v. Herbert Hammond, Appellee.
    Gen. No. 21,019.
    1. Frauds, Statute of, § 25

      —when test as to possibility of time of performance governs. The test whether a contract is within the Statute of Frauds is whether at the time such agreement was made it could have been performed within a year, and not whether in fact such contract was so performed, and hence, if performance within one year was possible, the contract is not within the statute.
    2. Frauds, Statute of, § 25

      —when applicable to contract not to be performed in a year. A contract is within the Statute of Frauds if by its terms it appears that the contract cannot be performed within one year from the time when the contract was made.
    3. Frauds, Statute of, § 25

      —when expectation of parties as to time of performance not controlling. An assignment of a policy of life insurance to secure moneys then due, or which in the future might be due from insured to assignee, is not within the Statute of Frauds, although such contract fixes no definite time during which it is to continue in force, and although it appears from the contract that parties contemplated that it would continue in force for more than a year, for the reason that such a contract is not within the statute if by a reasonable construction its terms did not require it to remain in force for more than a year.
    4. Interpleader, § 8

      —what essential. In a bill of interpleader, both claimants are in a position similar to that of plaintiff in possessory actions, where plaintiff must recover on the strength of his own title, and not on the weakness of the title of his adversary.
    5. Interpleader, § 17

      —when evidence insufficient to support decree. In an interpleader suit brought by an insurance company to determine the rights of claimants to a fund arising under a policy issued by complainant and on which liability was admitted, where defendants claimed the fund respectively as the beneficiary named in the policy, and as assignee thereof, under an assignment made by insured in his lifetime, evidence examined and a decree finding the equities in favor of defendant claiming as assignee held erroneous under the evidence.

      Appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded with directions.
    Opinion filed December 8, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Montgomery, Hart, Smith & Steere, for appellant.
    John P. Ahrens, for appellee.

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

   Mr. Justice Pam

delivered the opinion of the court.

Appellant and appellee were defendants in a bill of interpleader filed by the Mutual Life Insurance Company of New York, hereinafter referred to as the complainant, to determine to whom should be paid the net proceeds of a life insurance policy issued by it on the life of Edward C. Ritsher, the deceased husband of the appellant, hereinafter referred to as the assured. Answers having been filed by both the appellant and the appellee, the court entered an interlocutory decree wherein it directed, inter alia, that the complainant pay into court the sum of $8,434.83, being the net proceeds due upon the said policy after deducting the amount of a loan which had been made to the assured by the complainant; and that upon payment of said amount to the clerk of the. court, complainant be dismissed' from further prosecution of its bill and released of all claims under said policy of insurance.

The sole controversy here presented is, whether the appellant or the appellee is entitled to the proceeds of this policy, appellant claiming as beneficiary under the policy, and appellee by virtue of an assignment to him executed by appellant and the assured.. This issue was referred to a master who found the equities with the appellee and recommended that a decree be entered directing the clerk of the court to pay the proceeds of the policy ($8,434.83) to the appellee. Upon a hearing, the court entered a decree as recommended, and from this decree appellant has prosecuted this appeal.

The evidence discloses that on April 23, 1900, the complainant issued a policy of insurance on the life of the assured, in the sum of $10,000, payable to the appellant, her executors, administrators and assigns; that on September 28, 1903, appellant and the assured executed an assignment of said policy to the appellee and delivered the same to him. Appellee testified that same were delivered as collateral security for debts then owing or which might in the future be owing by the assured to him; that when such arrangement was made, he .believed appellant was present f that during November, 1908, the assured desired to make a loan on said policy from the complainant and requested him (appellee) to deliver the policy to complainant; that “Mr. Ritsher said he would borrow what money he could from the insurance company and allow the assignments to remain with me, in the same manner as they were before;” that the money received on this loan was to be paid to appellee.

The evidence further discloses that complainant made a loan on said policy in the sum of $1,330, the net proceeds of which ($1,303.58) were sent to appellee by check payable to the order of appellant and the assured, and that the appellee in turn inclosed the check in a letter to the appellant and the assured, with a request to indorse the check and return it to him, which was done; that the assured died on June 2, 1910, upon which date the policy was in full force and effect; that after deducting the amount due complainant upon the aforementioned loan, there was a balance due on the policy of $8,544.83; that within a few days after the death of the assured, appellee notified complainant that he claimed the full amount of said policy, and exhibited the assignment previously referred to and left same with it as evidence of his right to the said fund; that at the time of his death, the assured was indebted to appellee on notes and checks in a sum greater than the amount due on said policy; that these notes were collateral notes; that though security was recited therein they did not mention the insurance policy in question or any other insurance policy; that these notes and checks aggregated more than the amounts actually advanced by the appellee to the assured.

These notes bore six per cent, interest, but there was evidence that commissions were paid by the assured to appellee to secure these loans. The exact amount of ihese commissions does not appear in the evidence, appellee testifying that he kept no books of the commissions paid; that while a memorandum was made at that time, no permanent record was kept thereof. The master found that the commissions were large in amount.

There were also offered in evidence several letters passing between the assured and appellee, all of them having to do with loans being made by appellee to the assured. Among these was one dated April 11, 1910, wherein appellee, after making reference to several of their business transactions, wrote as follows:

“I have thought recently of the importance of your life in the most of the matters in which you and I are now or likely to be interested, and that it would be wise to have an assignment of some of your policies of insurance covering about such an amount as is wise to have an assignment of some of your policies which I once held removed this factor which has not been replaced. I understand that these particular policies are deposited with the companies issuing them, but dare say you have others that are not so deposited.”

It further appeared from the evidence that there had also been deposited with appellee a policy on the life of the assured, issued by the State Mutual Life Insurance Company, which had also been delivered to the issuing company, to be used, as appellee testi-. fied, “as the basis of a loan to Mr. Bitsher.” That transaction took place in December, 1908.

Appellant, in her answer and upon the trial of the case, admitted the making of the assignment. She claims, however, that whatever interest appellee had by virtue of this assignment, it was released at the time said policy was delivered to the complainant at the request of the assured, for the purpose of securing a loan, the proceeds of which were paid to appellee. She also contends that the agreement whereby this policy and assignment were delivered as collateral security for debts owing and to be owing in the future, being an oral one, it must, under the evidence, be considered as a contract not to be performed within one year from the date thereof, and therefore void under the Statute of Frauds.

In urging this latter contention, appellant asserts that there is no evidence in the record to show what indebtedness, if any, was existing at the time the policy and the assignment were delivered as collateral security, viz., in 1903; that while appellee testified that there were continual transactions between himself and the assured from that time to the latter’s death on June 2, 1910, yet the only evidence of indebtedness in the record was in the form of notes and checks issued during May and June, 1910; that therefore the appellee’s claim being dependent upon an indebtedness which the evidence discloses arose more than a year after the making of the agreement, such agreement was void under the Statute of Frauds because it was not performed within one year. However, the test to determine whether such agreement comes within the statute is not whether it was performed within a year, but whether, when the agreement was made, it could have been performed within a year; and if so, it does not come within the statute. A contract comes within the Statute of Frauds if by its terms it appears that it cannot be performed within one year from the date of making thereof. This principle is well set forth in Warner v. Texas & P. Ry. Co., 164 U. S. 418, wherein the court said (p. 433):

“In the case at bar, the contract between the railroad company and the plaintiff, as testified to by the plaintiff himself, who was the only witness upon the point, was that if he would furnish the ties and grade the ground for the switch at the place where he proposed to erect a sawmill, the railroad company would ‘put down the iron rails and maintain the switch for the plaintiff’s benefit for shipping purposes as long as he needed it.’
“The parties may well have expected that the contract would continue in force for more than one year; it may have been very improbable that it would not do so; and it did in fact continue in force for a much longer time. But they made no stipulation which in terms, or by reasonable inference, required that result. The question is not what the probable, or expected, or actual performance of the contract was, but whether the contract, according to the reasonable interpretation of its terms, required that it should not be performed within the year. No definite term of time for the performance of the contract appears to have been mentioned or contemplated by the parties ; nor was there any agreement as to the amount of lumber to be sawed or shipped by the plaintiff, or as to the time during which he should keep up his mill. * * *
“If, within a year after the making of the contract, the plaintiff had died, or had abandoned his whole business at this place, or for any other reason had ceased to need the switch for the shipping of lumber, the railroad company would have been no longer under any obligation to maintain the switch, and the contract would have been brought to an end by having been fully performed.
‘ ‘ The complete performance of the contract depending upon a contingency which might happen within the year, the contract is not within the statute of frauds as an ‘agreement which is not to be performed within the space of one year from the making thereof.’ ”

Such also is the holding in Walker v. Johnson, 96 U. S. 424; McPherson v. Cox, 96 U. S. 404; Birks v. Gillett, 13 Ill. App. 369; Hulse v. Hulse, 155 Ill. App. 343.

If under this agreement a loan had been made at the time the policy and assignment were delivered, or within a year thereafter, and within a year after the loan had been made, and the assured had died, then whatever moneys were due under said policy could have been claimed as security by appellee for the loans made by him under said agreement. It matters not that from the contract itself the parties contemplated that the contract was to continue in force for a period of more than one year, if by a reasonable interpretation its terms did not require it to be in force for a period of more than one year. We are therefore of the opinion that the said agreement was not within the Statute of Frauds.

This brings us to the contention of appellant, that when said policy was delivered by appellee to the complainant to enable the assured to make a loan, the proceeds of which was to be paid, and actually was paid, to the appellee, that thereby the appellee released all his interest in said policy that had accrued to him under the aforementioned assignment.

In this proceeding, being a bill of interpleader, the two claimants, viz., the appellant and the appellee, are in a position similar to that presented in Conway v. Caswell, 121 Ga. 254, 48 S. E. 956, wherein it was said (p. 259):

“In interpleaders both claimants are in a position similar to that of plaintiffs in other possessory actions, where the recovery must be on the strength of their own title rather than on the weakness of their adversary’s title.”

Both the appellant and the appellee assert that under the evidence they are entitled to the money due under the policy.

The policy and the assignment were delivered to appellee in 1903. The policy remained in his possession until 1908. During the interim, it was kept in force and the premiums paid, presumably by the assured; at least, it is certain that appellee did not pay them. In 1908, appellee states, the assured came to him and requested that the policy be delivered to the complainant so he (the assured) might secure a loan thereon. There is no evidence as to why he wished to secure this loan. It is fair to presume, however, that it was for the benefit of appellee, because he received the proceeds thereof. There is no evidence .as to the exact state of indebtedness at that time. At the time of his death, the evidence of indebtedness, upon which appellee bases his claim, were the notes and checks made in May and June, 1910. These notes were collateral notes, and the collateral was therein set out in full, yet no mention is made therein of either of the insurance policies; in.fact, the record is barren of any written evidence wherein it appears that either of these policies was held as collateral security.

Appellant insists that these facts and the reasonable inferences that flow therefrom show that the appellee released all claims he had had by virtue of the assignment, and that this is further evidenced by the letter of April 11, 1910, written by appellee to the assured, wherein he said:

“I have thought recently of the importance of your life in the most of the matters in which you and I are now or likely to be interested and that it would be wise to have an assignment of some of your policies of insurance covering about such an amount as is likely to be involved. The taking away of the policies which I once held removed this factor which has not been replaced. I understand that these particular policies are deposited with the companies issuing them, but dare say you have others that are not so deposited.”

While the master found that said letter did not release or was not any evidence of an intention on thej part of the appellee to release his right in and to the policy in question, we cannot concur in such finding. There is no question that appellee, to secure loans then existing or to be made in the future, was endeavoring by this letter to obtain from the assured as collateral security an assignment of any policies which the assured might have, other than the policies which had been in his possession, among which was the policy in question. When appellee states therein that “the taking away of the policies which I once held removed this factor which has not been replaced,” he can have reference only to the policy in question and the one issued by the State Mutual Life Insurance Company already referred to, because the record is barren of any evidence indicating that he had reference to any other policies. What was the factor that was removed? Policies or assignments to secure any transactions he had or might have had with the assured. And when appellee states further, “I understand that these particular policies are deposited with the companies issuing them, but daresay you have others that are not so deposited,” such language can only be construed to mean that the appellee regarded his rights in and to said policies gone after they had been deposited with the complainant and the other insurance company. There was no evidence of any limitation upon the right of the assured to deal with the policy as he saw fit. It was in his power, for aught that appears in the record, to absolutely dispose of his right, title and interest in this policy. In fact, complainant’s bill alleged that the assured deposited with it the policy in question as collateral security for a loan of $1,330, and the interlocutory decree so found.

Upon what does appellee base his contention that he still retained his interest in said policy, subject only to the loan made by the complainant? First, upon the fact that he retained the assignment, and further, on a conversation with the assured,—whose lips are now closed forever, and were at the time of the trial,— that when he delivered this policy to the complainant at the request of the assured, the latter stated that “he would borrow what money he could from the insurance company and allow the assignments to remain with me in the same manner they were before.” That is the only evidence in the record to support his con-' tention. There is no evidence of any positive act on his part to show, or tending to show, that he still considered this policy as collateral security. On the contrary, the letter of April 11, 1910, clearly showed that he no longer regarded these policies as a factor with reference to his business transactions with the assured. His explanation of that letter upon the trial was far frqm satisfactory. In fact, the record is barren of any evidence which shows that complainant had any notice whatever of the alleged claim of appellee in and tó the said policy prior to the death of the assured. On the contrary, the record shows that complainant held the policy subject only to the right of the assured and the appellant.

Manifestly, to our minds, the entire course of conduct as evidenced by these facts, which are undisputed, indicates that the appellee did not rely any further upon the policy in question but had in fact released all his rights and interest therein, the consideration for his doing so being the fact that he received the entire proceeds of the loan made by complainant to the assured.

We are therefore of thé opinion that the chancellor erred in finding the equities with the appellee, and that under the evidence the finding should have been for the appellant. The decree must, therefore, be reversed.

The order of this court will be that the decree be reversed and the cause remanded with directions to the chancellor to enter a decree finding the equities with the appellant.

Reversed and remanded with directions.


author: Mr. Justice McGoorty

text:
    City of Chicago, Defendant in Error, v. Charles Lesser, Plaintiff in Error.
    Gen. No. 20,211.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court op Chicago, § 13

      —when complaint for violation of ordinance sufficient. A complaint charging defendant with a violation of an ordinance of the City of Chicago relative to gaming sufficiently describes the offense charged and the ordinance alleged to have been violated where such complaint describes the ordinance violated by the number of its section of the Chicago Municipal Code, and where the acts charged against defendant are also specifically set forth therein.
    2. Appeal and error, § 1034

      —when Appellate Court will not take judicial notice of ordinances. In order to take advantage on review of points based on ordinances of the City of Chicago, such ordinances must be preserved in the bill of exceptions, as the Appellate Court will not take judicial notice of such ordinances.
    3. Appeal and error, § 1302

      —when presumed trial court took judicial notice of ordinance. In an action to recover a penalty for violation of ah ordinance of the City of Chicago, where on writ of error to reverse the judgment the record fails to show whether the trial judge took judicial notice of the ordinance in question as required by section 54 of the Municipal Court Act (J. & A. | 3371), the Appellate Court will presume that the statute was complied with.

      Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed December 21, 1915.
    Statement of the Case.
    Action by the City of Chicago in the Municipal Court against Charles Lesser, defendant, to recover a penalty for violation of an ordinance. To reverse a judgment imposing a fine of $200 and costs of $8.50, defendant prosecutes this writ of error.
    George Remus, for plaintiff in error.
    John W. Beckwith and Albert J. W. Appell, for defendant in error; John F. Power, 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 McGoorty

delivered the opinion of the court.

4. Municipal Court of Chicago, § 13 —when motion for rule requiring filing more specific statement necessary in action for penalty. In an action to recover a penalty for violation of a city ordinance relative to gaming, where the complaint is objected to as being indefinite, defendant’s remedy is to move for a rule to require plaintiff to file a more specific statement as in other cases of the fourth and fifth classes under the Municipal Court Act, as such an action is a civil action and the complaint therein stands as a statement of plaintiff’s claim.

5. Gaming, § 43 —when evidence sufficient to sustain judgment. In an action to recover a penalty for violation of an ordinance of the City of Chicago, relative to gaming, a judgment for plaintiff, held not manifestly against the weight of the evidence.


text:
    City of Chicago, Defendant in Error, v. Otto Coorth, Plaintiff in Error.
    Gen. No. 20,210.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed December 21, 1915.
    Statement of the Case.
    Action by the City of Chicago against Otto Coorth, defendant, in the Municipal Court of Chicago, to recover a penalty for violation of section 2012 of the Chicago Code of 1911. This case presents the same questions of law raised in City of Chicago v. Lesser, No. 20,211, ante, p. 37, and a judgment for plaintiff in this case was affirmed on the authority of that case.
    George Remus, for plaintiff in error.

      John W. Beckwith and Albert J. W. Appell, for defendant in error; John F. Power, of counsel.
   Mr. Justice McGoorty


text:
    J. F. O’Brien, trading as J. F. O’Brien & Company, Plaintiff in Error, v. H. L. Newhouse, Defendant in Error.
    Gen. No. 20,631.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry C. Moran, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed December 21, 1915.
    Statement of the Case.
    Action by J. F. O’Brien, trading as J. F. O’Brien & Company, plaintiff, against H. L. Newhouse, defendant, in the Municipal Court of Chicago, to recover the amount of broker’s commissions for negotiating leases of defendant’s property. Defendant, in addition to an affidavit of merits, filed set-off. The court found the issues against plaintiff and for defendant on his set-off and assessed defendant’s damages on his set-off at eight dollars.
    The controverted questions arise as to two leases, known as the “Daube” and “Berger” leases. The only evidence as to the Daube lease was the testimony of plaintiff and defendant, plaintiff claiming and defendant denying that plaintiff procured such lease. As to the Berger lease it appeared that plaintiff negotiated with Berger to induce him to take a lease of defendant’s store, but Berger declined, whereupon plaintiff abandoned further negotiations with Berger after notifying defendant of such negotiations. It further appeared that several weeks later another broker began negotiations with Berger in regard to a lease of the same store, as a result of which Berger changed his mind and took the lease, on terms which were different from those proposed by plaintiff, but it did not appear whether the new terms were more or less favorable to Berger. It did not appear that plaintiff had anything to do with Berger’s change of mind. The cause was tried by the court, which found the issues against plaintiff and in favor of defendant on his set-off, and assessed defendant’s damages at eight dollars. To reverse a judgment for defendant for eight dollars, plaintiff prosecutes this writ of error.
    Abstract of the Decision.
    1. Brokers, § 93

      —when question whether broker procuring cause of renting premises for jury. In an action to recover a broker’s commission for negotiating the rental of property, the question whether plaintiff’s services was the procuring cause and the effective means of bringing about such renting of the property is a question of fact for the jury on all the evidence.
    2. Brokers, § 51

      —what is effect on right to compensation of other broker being procuring cause of obtaining tenant. The fact that plaintiff, a broker, had formerly negotiated with a person in regard to such person’s taking a lease of defendant’s store does not warrant a claim for a commission by plaintiff for bringing about such lease, wheye it appears that such person was finally induced to take such lease through the efforts of another broker after plaintiff had for some time abandoned negotiations with such lessee in regard to his taking the lease.
    3. Brokers, § 37

      —when broker not procuring cause of lease. Where a broker negotiates with a person to induce him to take a lease, which such person then refuses to do, upon which plaintiff abandons further negotiation with such person in regard to his taking such lease, such broker cannot be said to be the procuring cause of making the lease, so as to entitle him to recover a commission therefor, where such person later changes his mind and takes the lease, in the absence of evidence that plaintiff induced such person to change his mind with reference to taking such lease.

      P. H. Bishop, for plaintiff in error.
    Abler & Leberer, for defendant in error.

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

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

   Mr. Justice McGoorty

delivered the opinion of the court.

4. Brokers, § 90 —when evidence sufficient to sustain finding that broker not procuring cause of lease. In an action to recover a broker’s commission for procuring a lease of defendant’s property, where plaintiff, a broker, negotiated in regard to such lease with a person who at first refused, and who, after plaintiff had abandoned such negotiations, changed his mind and took the lease, a finding that plaintiff did not procure or induce such person to take the lease held not manifestly against the weight of the evidence.

5. Brokers, § 72 —when judgment properly entered on set-off in action for commissions. In an action to recover a broker’s commission for procuring a lease of defendant’s property, where defendant filed set-off, and the action was tried by ttie court, judgment for defendant on his set-off held not erroneous as ignoring the issues joined on plaintiff’s claim, where it appears that the trial court after hearing the issues raised both on plaintiff’s claim and defendant’s set-off, and overruling plaintiff’s motion for a finding in his favor, and finding that plaintiff was indebted to defendant entered the judgment complained of, for the reason that such action of the trial court was proper under section 47 of the Practice Act (J. & A. If 8584), providing that where it appears on the trial of an action that plaintiff is indebted to defendant, the jury shall find for defendant and shall certify to the court the amount so found, which shall enter judgment for defendant, and further, that where the cause is tried by the court, the finding in judgment shall be in like manner.


text:
    Frank Rumszas, Appellee, v. Chicago, Rock Island & Pacific Railway Company, Appellant.
    Gen. No. 20,821.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Mazzini Slusser, Judge, presiding.
    Heard in the Branch Appellate Court at the February term, 1915.
    Reversed with finding of fact.
    Opinion filed December 21, 1915.

      Statement of the Case.
    Action of trespass by Frank Rumszas, plaintiff, against the Chicago, Rock Island and Pacific Railway Company, defendant, to recover for personal injuries alleged to have been sustained by plaintiff as a result of an assault committed on plaintiff by an employee of defendant. From a judgment for plaintiff for $1,000, defendant appeals.
    The alleged assault occurred on April 21,1911. Defendant introduced in evidence a paper purporting to be a general release under seal, executed by plaintiff for $36, on May 2, 1911, and also introduced a draft, of the same date, payable to the order of plaintiff for $36, which draft on its face recites: “For personal injuries received at Chicago, Illinois, on April 21, 1911.” The alleged release recites that plaintiff released defendant from all. liability, for all claims for injuries, etc., plaintiff acknowledging therein full satisfaction.
    The plaintiff contended that he was induced, by agents of the defendant, by trick or fraud, to sign said release under the belief that it was a receipt for money in payment of wages due him at the time of the happening of the injuries complained of. The plaintiff at the time of the said assault was in the employ of the defendant as a car cleaner.
    The plaintiff testified that he could not read English; that the paper constituting the purported release was presented to him by two agents of the company at the hospital, but was not read to him before he signed it; that “Mr. Shaw (one of the defendant’s agents) took a pencil and say ‘Sign your name on the paper,’ and I signed that, and he has a check for me and he gave me that check, and the two men put the paper in their pocket. He said that is a good thing, you get wages in pay for it, don’t lose that. * * * The paper (the check) they gave me I kept it one day, and then * * * I gave it to my wife. * * * I do not know what a release is. * * * At the time I signed the release I thought it was for wages I had coming. * * * At the time I was injured I had twenty-one days coming, and I thought that the check that Emmick gave me was for that money. After while I got the money I had coming for the twenty-one days * * * .” The plaintiff, in part, testified through an interpreter.
    Within a few days following the execution by plaintiff of said release and before he cashed said draft, he admitted that he was informed by Dr. Schultze, of the hospital, that he had signed a release “for his injuries. ’ ’ He subsequently was paid by defendant the amount due him as wages for said twenty-one days. The check or draft given him May 2, 1911, when he signed such release, charged plaintiff with notice that it was given to and accepted by him in settlement of his claim. The draft is on a printed form with the following words legibly written on its face: “For personal injuries received at Chicago, April 21, 1911,” and was not cashed until May 10, 1911. The proceeds of such draft were retained by him, and no offer was ever made by plaintiff to return, to the defendant, the money thus received.
    It appeared that defendant’s agent visited plaintiff at the hospital where plaintiff was taken after receiving the injuries sought to be recovered for, where the release was signed and the draft in question delivered. It did not appear that plaintiff was informed by the agent that the release was a receipt for money due plaintiff for wages.
    M. L. Bell and A. B. Enoch, for appellant.
    Earl J. Walker, for appellee.

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

   Mr. Justice McGoorty

delivered the opinion of the court.

Abstract of the Decision.

1. Release, § 24 —when burden on plaintiff to show fraud in procurement of release. Where the defense to an action is grounded on a release under seal, plaintiff has the burden of showing fraud in the procurement of such release, since a release cannot be avoided at law except for fraud in its execution.

2. Release, § 18 —when one signing release chargeable with notice that draft intended as settlement. In an action to recover for personal injuries alleged to have been sustained as a result of an assault committed on plaintiff by an employee of defendant, where at the time of signing a release under seal plaintiff was not informed that the paper he signed was a release, but, in consideration of signing such release, plaintiff was given a draft payable to the order of plaintiff, on the face of which was legibly written: “For personal injuries received at Chicago, April 21, 1911,” plaintiff held chargeable with notice that such draft was given and accepted in settlement of his claim, it appearing that before the draft was cashed plaintiff was informed that the paper he signed was a release of his claim for damages, it also appearing that after cashing the draft plaintiff retained its proceeds without making an offer to return such proceeds to defendant.

3. Release, § 8 —what fraud will avoid release. In order to avoid a release given in settlement of a claim on the ground of fraud without returning or offering to return the money paid to secure the release, the fraud relied on must be an actual, intended fraud.

4. Release, § 27 —when evidence sufficient to show ratification of settlement. In an action of trespass to, recover for personal injuries alleged to have been sustained by plaintiff as a result of an assault committed on plaintiff by an employee of defendant, where the defense was grounded on a release under seal executed by plaintiff, and although there was no evidence that at the time of signing such release plaintiff knew that it was such, it appearing that plaintiff received and cashed a draft payable to his order showing on its face that such draft was given in settlement of the claim for which the release was asked, and that plaintiff retained the proceeds of such draft without an offer to return them to defendant, held that the evidence showed that plaintiff ratified the settlement.

5. Release, § 27 —when evidence sufficient to show lack of fraud in procurement of release. In an action of trespass to recover for personal injuries alleged to have been sustained by plaintiff as a result of an assault committed on plaintiff by an employee of defendant, where the defense was grounded on a release under seal executed by plaintiff, which release was alleged to have been procured by fraud, evidence held to show that no fraud was practiced in procuring the release.


text:
    Page V. Lyon, Trustee, Appellant, v. Pony Moore et al. (Defendants), Joseph Marshall et al., Appellees.
    Gen. No. 20,902.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. John M. O’Connor, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed December 21, 1915.
    Statement of the Case.
    Bill by Page V. Lyon, trustee of the estate of Pony Moore, bankrupt, complainant, against Pony Moore et al., defendants, to reach the interest of defendant Pony Moore, in a certain lease. From a decree finding defendant Frank Marshall liable for one month’s rent, complainant appeals. The principal facts in this case up to June 18,1913, are to be found in Lyon v. Moore, 259 Ill. 23.
    Pony Moore was adjudged a bankrupt on August 12, 1907, on Ms petition, and Page V. Lyon, appellant, was appointed trustee. Moore was the lessee of certain premises from Mrs. Fowler, and he sublet them for the entire remainder of the term from November 1, 1905, to Joseph Marshall, who afterwards assigned the sublease to Frank J. Marshall. Moore retained no reversion in himself, but while he was liable to Mrs. Fowler for only $100 a month, the rent reserved to him in the sublease was $150 a month, so that the lease was worth to Mm $50 a month for the remainder of the term. After a judgment for $18,000 had been rendered against Moore, he and a certain Blunk devised a fraudulent scheme to defraud the creditor by putting that $50 a month beyond his reach, and to carry the scheme into effect Moore surrendered the original lease. Marshall, as assignee of Moore’s lease, was liable to Mrs. Fowler for $100 a month as rent, and Moore had a contract right to the additional $50 a month rent which Marshall was to pay. The Supreme Court held that the record showed a liability to said appellant from the lessee under the sublease in question, from the time the bill was filed and process served on such lessee, but that the record did not contain facts from which such liability could be determined, and reversed the judgment of the Appellate Court and the decree of the Superior Court, and remanded the cause to the Superior Court, with directions to enter a decree requiring every person liable, as lessee, for the rent of the premises during the existence of the lease after service of process on Joseph Marshall and Frank Marshall to account for and pay to appellant, as trustee in bankruptcy for Pony Moore, $50 per month reserved to Moore by the agreement.
    In pursuance to said remanding order and opinion of the Supreme Court, the case was redocketed in the Superior Court. Amended and supplemental answer was filed by Joseph and Frank Marshall, appellees, issues joined, evidence heard and decree entered by that court, finding Joseph Marshall was not indebted to the complainant, and that the defendant Frank Marshall was liable and should pay to the complainant the sum of $65, dismissing the bill as to the defendant Joseph Marshall for want of equity. The decree further found that appellant, in open court, renounced all claims and demands against any of the defendants to the bill of complaint herein, other than Joseph Marshall and Frank Marshall.
    Defendant Joseph Marshall testified that he assigned the lease in question to defendant Frank Marshall November 9,1906, and that subsequently he had not been interested in or in occupation of such premises. A writing signed by Pony Moore was introduced discharging Joseph Marshall from all obligations under the lease. Defendant Frank Marshall testified that he had possession and paid rent for the premises from November 1,1906, to March 1,1908, and that he ceased to occupy such premises March 18,1908. A transcript of a judgment of the Municipal Court of Chicago entered in an action brought to dispossess Pony Moore and Frank Marshall of the premises was admitted in evidence. Walter H. McDonald, agent for Mrs. Fowler, the owner of the premises, testified to taking steps to dispossess Moore and Marshall after default by them in payment of rent, and that after such dispossession the landlord rented the premises to one Leight. He also testified that Marshall paid $150 a month to him as such agent, of which witness paid $100 to Mrs. Fowler and the balance to Moore.
    Abstract of the Decision.
    1. Appeal and error, § 1831

      —when additional evidence may he heard upon remanding cause. In a bill by a trustee in bankruptcy to reach the interest of the bankrupt under a certain lease, where on review the Supreme Court without making a decision on the merits reversed the decree of the trial court and remanded the cause with direction to enter a decree requiring every person liable to the bankrupt for rent under such lease to pay to complainant as such trustee the amounts for which such person was liable, but also holding that the record did not contain evidence sufficient to enable the reviewing court to determine who the persons so liable were, it was proper for the trial court to permit the action to be redocketed, to allow amendments and to hear further evidence.

      At the hearing complainant renounced all claims against all defendants except Frank and Joseph Marshall, and the court dismissed the bill for want of equity as to defendant Joseph Marshall.
    A. D. Gash, for appellant.
    E. H. Morris and Silber, Isaacs, Silber & Woley, for appellees Joseph and Frank Marshall.

      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 McGoorty

delivered the opinion of the court.

2. Appeal and error, § 1831 —when evidence not incompetent as relating to matters res adjudicata. In a bill by a trustee in bankruptcy to reach the interest of the bankrupt under a certain lease, where the Supreme Court reversed the decree of the trial court and remanded the cause with a mandate which made it necessary that the trial court determine what, persons were liable to the bankrupt under such lease, and the .amounts for which such persons were liable, in a further hearing held to determine such questions, held, proper to admit evidence of persons holding such lease by assignment from the bankrupt and a transcript of a judgment entered by the Municipal Court of Chicago in action wherein the bankrupt and those claiming under him were dispossessed, such transcript being explained by the testimony of lessor’s agent as to the manner in which such lease was terminated, all of such evidence being competent as tending to show that such lease had been terminated, and such evidence is not incompetent by reason of its having relation to matters res adjudicata, nor were defendants precluded from introducing such evidence by the fact that it was equally available to them at the time of the first hearing and not then introduced.

3. Bankruptcy, § 38 —when pleadings in another case admissible in action by trustee. In a bill by a trustee in bankruptcy to reach the interest of a bankrupt under a certain lease, where on review the Supreme Court reversed the decree of the trial court with mandate requiring the trial court to ascertain what persons were liable to the bankrupt under such lease, and where one of the ultimate facts to be determined was the termination of the lease in question and the subletting thereafter by the owner to others, the pleadings in a cause involving the same leasehold held competent, although complainant was not a party to such action, as being one element in that chain of account tending to prove such ultimate fact.

4. Bankruptcy, § 38 —when evidence of tender of rent properly excluded in action by trustee. In a bill by a trustee in bankruptcy to reach the interest of the bankrupt in a .certain lease, where on remand after reversal by the Supreme Court one of the issues was whether the lease in question was terminated, evidence that after the termination of such lease a tender of rent was made to lessor by a person not a party to the action, held properly excluded as immaterial.

5. Bankruptcy, § 38 —when evidence sufficient to sustain decree in action by trustee. In a bill by a trustee in bankruptcy to reach the rights of the bankrupt under a certain lease, where on review the Supreme Court reversed the decree of the trial court with mandate making it necessary for the trial court to ascertain what persons were liable to the bankrupt under such lease, and the amounts for which such persons were liable, a decree finding a particular defendant liable to the bankrupt under such lease held proper under the evidence, complainant having renounced all claims against all defendants except two, and the court having dismissed the bill for want of equity as to the other defendant, against whom complainant had not renounced his claims.