text:
    Carrie M. Ballah, Appellee, v. Peoria Life Association, Appellant.
    1. Special findings—section 79 of Practice Act construed. The provision in the statute that when a special finding of fact is inconsistent with the general verdict the former shall control the latter, manifestly only relates to such material questions of fact submitted to the jury as directly control and affect the general verdict.
    2. Evidence—when collateral, incompetent. In an action upon a life insurance policy upon the issue of payment, held, that evidence of the payment by the insured upon a certain day of certain dues, assessments and premiums having no relation to the policy in question, was incompetent; likewise, that it was incompetent to permit evidence that the insured at the time in question had money and was a man who paid his obligations.
    3. Instbuctions—when upon question of payment proper. An instruction upon this subject is proper which tells the jury in substance that it was just as competent to prove payment by circumstantial evidence, conduct or admission as by direct evidence, and that they had no right to disregard such evidence merely because there was no direct evidence of payment; that even though all the evidence upon the question of payment might be by circumstances, conduct or admission, yet if they believed from a preponderance of the evidence in the case that the premium in question was paid by the insured when the same was due, their verdict should be for the plaintiff.
    4. Instructions—when as to absence of presumption of law as to payment or non-payment proper. An instruction upon this subject is proper which substantially tells the jury that there is no presumption that the insured did or did not pay the premium in question but that the question of payment was one of fact to be determined by them from all the facts and circumstances appearing in evidence in the case.
    5. Instructions—when refusal of correct will not reverse. The refusal of a correct instruction will not reverse if its contents are substantially contained in another instruction given.
    6. Instructions—undue prominence. An instruction is properly refused which singles out and gives undue prominence to particular evidence.
    7. Insurance—when estoppel to enforce forfeiture arises. If the practice of an insurance company and its course of dealing with the insured and others known to the insured has been such as to induce a belief that so much of the contract as provides for a forfeiture in a certain event will not be insisted upon, the company will not be allowed to set up such forfeiture as against one in whom its conduct has induced such belief.
    Assumpsit. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed December 7, 1910.
    Wolfenbarger & May and Dwyer & Dwyer, for appellant.
    A. B. Dennis and Walter V. Dysert, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit in assumpsit upon a policy of life insurance for $1,000 issued by the defendant on November 12, 1903, to James H. Ballah, the husband of the plaintiff. Payment of the policy was .refused, by the defendant upon the ground that the insured had permitted the same to lapse by his failure to pay the quarterly premium amounting to $5.04 on November 12, 1908, preceding his death on February 6, 1909. Under the pleadings two issues were submitted to the jury: First, whether or not by its course of conduct in accepting payment of premiums after the time fixed therefor by the terms of the policy, the defendant had waived its right to declare a forfeiture of the policy for non-payment of the premium when the same became due, and second, whether or not the insured had in fact paid the premium in question on November 12, 1908. Upon the trial the jury returned a verdict in favor of the plaintiff for $1,030.81 and answered in the affirmative the special interrogatory submitted at the request of the plaintiff, as follows: “Was the premium of $5.04 due November 12, 1908, paid when due?” The plaintiff remitted $10 from the amount of the verdict, and the court thereupon rendered judgment against the defendant for $1,020.81, to reverse which judgment this appeal is prosecuted.

When the policy was issued on November 12, 1903, the annual premium of $18.63 was payable annually. On November 12, 1905, at the request of the insured the premium was made payable quarterly in installments of $5.04, and on February 6, 1906, the premium was again made payable annually and so continued until February 12, 1907, when the premium was again made payable quarterly.

It is insisted by counsel for the defendant that the necessary effect of the special finding of fact by the jury that the premium due November 12, 1908, was then paid, is to eliminate the question of waiver from the case, and that the general verdict in favor of the plaintiff must be held to have been predicated solely upon such answer to the special interrogatory. If in answer to a special interrogatory the jury had found against the plaintiff upon the first count of the declaration, that there was no waiver by the defendant of the prompt payment of premiums, or that the defendant had not waived its right to declare a forfeiture of the policy, the position assumed by counsel for defendant would unquestionably be correct.

Section 79 of the Practice Act provides in substance that in any case in which the jury render a general verdict they may be required to find specially upon any material question or questions of fact, and that when a special finding of fact is inconsistent with the general verdict the former shall control the latter and the court may render judgment accordingly. Hurd’s Stat. 1909 p. 1705. The special interrogatory submitted to the jury in this ease only relates to a fact material to a recovery under the second count of the declaration and has no relation to the issue of waiver involved in the first count of the declaration. As an answer by the jury in the negative to the question submitted would not have affected or been inconsistent with a general verdict, so an answer in the affirmative does not affect and is not inconsistent with such general verdict, and a judgment could be properly entered upon such general verdict notwithstanding an answer to such question either in the affirmative or the negative. The provision in the statute that when the special finding of fact is inconsistent with the general verdict the former shall control the latter, manifestly only relates to such material questions of fact submitted to the jury as directly control and affect the general verdict.

The question of waiver involved under the first count of the declaration was one of fact for the determination of the jury. The evidence bearing upon this question is so close and conflicting that we are unable to say upon this record, and in view of the answer of the jury to the special interrogatory, that the general verdict for the plaintiff was based as well upon the first as upon the second count of the declaration. As the judgment must be reversed and the cause remanded primarily because the evidence is insufficient to sustain a recovery under the second count of the declaration we do not deem it necessary to consider and discuss the question of waiver further than to say there is sufficient evidence in the record to require the submission of that question to a jury.

The evidence introduced on behalf of the plaintiff as tending to show that the insured on November 12, 1908, paid the premium amounting to $5.04 due on that day, discloses that on the morning of that day the insured and his wife went to Danville; that they were then contemplating a trip west; that while they were in the store of one G-reenebaum, the insured left said store and walked in the direction of a building about two blocks distant in which the manager of the defendant had an office; that on that day the insured paid a premium upon a policy which he carried in the Massachusetts Life Insurance Company and also paid his dues in a Building and Loan Association and an assessment on his certificate in the Modern Woodmen of America; that the insured had sufficient money on his person to pay said premium and that he was a man who paid his obligations; that immediately after the death of the insured a brother of the plaintiff went to the office of the manager of the defendant in Danville and inquired whether the deceased had a policy in the defendant association, and that the bookkeeper in the office, to whom the inquiry was directed, replied: “Yes”; that the manager then looked through some papers on his desk and said: “Why, look here, I find Mr. Ballah’s receipt for this quarter has not been taken up yet;” that the bookkeeper said: “Mr. Ballah surely has paid that because he was one of the promptest men we had on our books;” that the manager then further said: “It is possible that he paid it and just took a personal receipt for it and has not come to get this receipt;” that the bookkeeper said she would look through the books and see if it was paid. Conceding’ the competency of all the evidence referred to it is wholly insufficient to support the finding of the jury that the insured paid the premium in question on November 12, 1908.

Evidence of the payment by the insured on November 12, 1908, of certain dues, assessments and premiums, having no relation to the policy in question, and that the insured then had money and was a man who paid his obligations was improperly admitted. In Thorp v. Goewey, 85 Ill. 611, where a claim was filed against the estate of a deceased person upon a promissory note outstanding a period of seventeen years, the genuineness of which was disputed, it was held competent for the defense to show in evidence that from the date the note purported to have been given down to his death the deceased was prompt to pay his debts, was prudent, careful, credit good, was a man of large property and did not like to be in debt, and that the payee, his son, was so pressed by his creditors before the maker’s death as,to take refuge in bankruptcy. In Mark v. Miles, 59 Ill. App. 102, where a claim was filed against the estate of one Ashway to recover an amount alleged to be due from him to the plaintiff arising out of transactions covering a period of several years, and where the books kept by the deceased had been offered in evidence, it was held that evidence that the deceased was prompt to pay his debts and was reputed to be a man of credit was properly admitted, as rebutting any circumstantial or other evidence that the books were improperly kept, or that he had not included all his items of accounts in them. In Jones v. Cline, 84 Ill. App. 428, where a claim was filed against the estate of one Sharp, who died October 19, 1897, to recover the amount of a promissory note bearing date July 16, 1896, and payable July 17, 1897, it was held that evidence that the deceased was a man of considerable means when he: died, was not in the habit of going into debt and always paid his debts promptly, was improperly admitted, because the plaintiff and the deceased were near and intimate neighbors and it was not unreasonable to believe that even if the deceased was habitually prompt in paying his debts he might under such circumstances have permitted his note to remain unpaid from its maturity to the date of his death. In Atwood v. Scott, 99 Mass. 177, it was said: “Experience is not sufficiently uniform to raise a presumption that one who has the means of paying a debt will actually pay it. Accordingly it is held that the fact that a debtor has had such means is not evidence tending to show that the debt was paid: Hilton v. Scarborough, 5 Gray, 422. On the other hand, the fact that one has not had the means to make certain payments, is evidence tending to show that he has not made them, and such evidence is held to be admissible. Stebbins v. Miller, 12 Allen 591; Winchester v. Charter, 97 Mass. 140.” In the case at bar it is conceded that the insured frequently failed to pay premiums upon the policy in question when the same became due. The premium on the policy was not a debt against the insured which he was bound to pay but its payment was wholly optional with him.

It is urged that by the second instruction given at the instance of the plaintiff the jury were led to believe that circumstantial evidence as to payment had the same probative force as direct and positive evidence of payment 1 We do not so understand the instruction. The instruction informed the jury in substance that it was just as competent to prove payment by circumstantial evidence, conduct or admission as by direct evidence, and that they had no right to disregard such evidence merely because there was no direct evidence of payment; that even though all the evidence upon the question of payment might be by circumstances, conduct or admission, yet if they believed from a preponderance of the evidence in the case that the premium in question was paid by the insured when the same was due, their verdict should be for the plaintiff. The instruction states the law with substantial accuracy and was properly given to the jury. The third instruction given at the request of plaintiff contains no reference to the issue of waiver as counsel for defendant seem to apprehend but relates wholly to the issue of payment, and what we have said as to the propriety of the second instruction is applicable to the third .instruction. The fifth instruction given at the request of plaintiff informed ■ the jury in part that there was no presumption that the insured did or did not pay the premium in question, but that the question of payment was one of fact to be determined by them from all the facts and circumstances appearing in evidence in the case. It is urged that because the burden was on the plaintiff to prove payment of the premium a presumption obtained that the premium was not paid until such proof of payment was made. Presumptions only arise out of facts established or admitted. That the presumption mentioned in the instruction refers to a presumption obtaining prior to the introduction of any evidence in the case is apparent from the latter clause of the instruction wherein the burden of proving payment of the premium by the evidence in the case is cast upon the plaintiff. The instruction is not subject to the objection urged.

It has been repeatedly held in this state that if the practice of an insurance company and its course of dealing with the insured and others known to the insured has been such as to induce a belief that so much of the contract as provides for a forfeiture in a certain event will not be insisted upon, the company will not be allowed to set up such forfeiture as against one in whom its conduct has induced such belief. Chicago Life Ins. Co. v. Warner, 80 Ill. 410; Conductors Benefit Ass’n. v. Tucker, 157 Ill. 194; Illinois Life Ass’n. v. Wells, supra.

While there is a technical distinction between the meaning of the terms “waiver” and “estoppel in pais,” as applied to the law of insurance they are ordinarily used indiscriminately and as thus used they usually relate to some act or conduct on the part of the insurer which has induced the insured to take a position whereby he will be injured if the insurer be permitted to repudiate such act or conduct. In U. S. Life Ins. Co. v. Ross, 159 Ill. 476, it was said: “It may also be seriously doubted whether an insurance company should be permitted to insist upon a forfeiture of its contract of insurance where the evidence shows that it has not stood by that clause, but made a departure therefrom, even though the time to which payment is extended be definitely fixed and not strictly complied with by the assured. Forfeitures being odious to courts, are never enforced except where they are definitely contracted for and nothing done by the party for whose benefit they are made to mislead the other to his injury; and we think that whenever it is admitted that the waiver is only conditional, the clearest and most satisfactory proof should be required of the party making the waiver, showing the condition was clearly and definitely understood by the insured, otherwise the waiver should be held general and estop the company from afterwards setting it up, except upon notice of forfeiture before the loss occurs. The reason of the rule holding that a waiver of such conditions may be made by the company, either by declarations or course of conduct is, that the insured, by those declarations and conduct, is led to believe that by indulgence of the company his policy will not be forfeited even though prompt payment, according to the strict requirement of the contract, is not made.”

The sixth and seventh instructions given at the instance of the plaintiff relate to the question of waiver and are in accord with the rule as announced in the cases cited. The nineteenth and twenty-first instructions offered by the defendant announced a contrary doctrine and were therefore properly refused. The eighteenth instruction tendered by defendant and refused by the court was sufficiently covered by other instructions given in the case. The • twenty-fourth instruction offered by defendant was properly refused because it singles out and gives undue prominence to particular facts in evidence and because it infringes upon the province of the jury.

For the error in the admission of incompetent evidence upon the issue of the payment by the insured of the premium in question on November 12, 1908, and because the verdict of the jury upon that issue is not supported by the competent evidence in the record the judgment is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Baume

license: Public Domain

text:
    George F. Jordan, Conservator, Appellee, v. W. A. Kirkpatrick, Appellant. W. A. Kirkpatrick, Appellant, v. George F. Jordan, Appellee.
    Consolidated for Hearing.
    1. Contracts—status of, made Toy lunatics. A deed or contract made by an idiot or lunatic before inquest is merely voidable and not void.
    2. Contracts—when made 5y lunatics set aside. If a contract is made on behalf of a lunatic by an agent the same can be set aside if such lunatic has obtained no advantage therefrom and if the want of mental capacity to create the agency could have been ascertained by inquiry. •
    3. Chancery—jurisdiction of, to set aside lunatic's contract. A court of equity has jurisdiction to entertain a proceeding to set aside a contract for want of capacity to make it.
    Bill in equity. Appeal from the Circuit Court of McLean county; the Hon. C. D. Myers, Judge, presiding.
    Heard in this court at the November term, 1909.
    Affirmed.
    Opinion filed January 5, 1911.
    F. Y. Hamilton and John E. Pollock, for appellant.
    Livingston & Bach, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

On January 4, 1907, .George F. Jordan, conservator of Minnie E. Arnold, a distracted person, filed his hill in equity in the Circuit Court of McLean county, praying for the cancellation of a certain note for $1,000. dated October 1,1906, signed by said Minnie E. Arnold and Albert N. Arnold, her husband, payable one year after date to the order of the defendant, W. A. Kirkpatrick, and also a certain mortgage bearing even date with said note executed and acknowledged by the said Minnie E. and Albert N. Arnold, and given to secure the payment of said note, upon the ground that at the time of the execution by her of said note and mortgage said Minnie E. Arnold was a distracted person, under duress of her husband, by whom she was compelled to execute the same; that she received no consideration therefor, and that immediately after the making of said note and mortgage she was willfully deserted by her said husband and left destitute; that the defendant knew or could have known by the use of reasonable care and caution on his part that the said Minnie E. Arnold was not at the time of the execution of said note and mortgage of sound mind and memory and capable of understanding the consequences of her acts. On November 4, 1907, W. A. Kirkpatrick filed his bill to foreclose said mortgage. After answers filed to said bills the two causes were consolidated and referred to the master in chancery to take and report the proofs therein together with his findings thereon. Objections were filed by the complainants in both bills to the findings of the master, which objections were by him overruled. The cause was heard by the chancellor upon said objections standing as exceptions to the master’s report, and a decree was entered granting the relief prayed in the bill filed by George F. Jordan, as conservator of Minnie E. Arnold, and dismissing the bill filed by W. A. Kirkpatrick to foreclose the mortgage involved, for want of equity. To reverse such decree this appeal is prosecuted by W. A. Kirkpatrick.

The decree finds the facts as found by the master and such facts are recited in said decree substantially as follows: .

That on October 6, 1906, Minnie E. Arnold was a distracted person and had been so distracted for a period of four months prior to said time; that on October 1, 1906, Minnie E. Arnold was the owner of the property in question, subject to two mortgages, one for $1,500 and one for $500, both of. which had been executed to Fred B. Capen within a period of six months prior to October 1, 1906; that both of said mortgages were valid and existing liens against said premises on October 1, 1906, and are still valid; that Albert N. Arnold, the husband of Minnie E. Arnold, on October 1, 1906, removed the said Minnie E. Arnold from the hospital, where she was then being confined and under the physician’s care, to the apartment of one Mrs. Bugdale, and that at said time said Albert N. Arnold, representing himself to be the agent of the said Minnie E. Arnold, applied through a loan broker to W. A. Kirkpatrick, for a loan of $1,000, to be secured by a mortgage on the said premises; that said W. A. Kirkpatrick did not know the said Minnie E. Arnold and had not seen her prior to that time, and did not see the said Minnie E. Arnold at the time of the execution of the mortgage and note aforesaid, and did not have knowledge of the fact that the said Minnie E. Arnold was then and there and had been for four months a distracted person; that said W. A. Kirkpatrick was not guilty of any fraud or legal negligence on his part, and that nothing occurred at the time of the execution of the papers aforesaid to raise the suspicion of the notary public or the loan broker or W. A. Kirkpatrick as to the mental incompetency of Minnie E. Arnold; that the said loan was negotiated in the ordinary manner of conducting the loan business; that at the time the said Minnie E. Arnold signed said note and mortgage, she was without any sane mind at all and incapable of understanding or transacting the ordinary business affairs of life; that on October 13. 1906, a petition for a conservator was filed, and on October 31,1906, a jury trial was had in the county court of McLean county and a verdict rendered that she was a distracted person, and said court then and there appointed the said George F. Jordan conservator for the said Minnie E. Arnold; that on the day of the execution of said note and mortgage, the said W. A. Kirkpatrick gave to Albert N. Arnold his check for $965, the proceeds of said loan, after deducting commissions and abstract fees, which said check was made payable to the order of Minnie E. Arnold and was paid by the bank on which it was drawn on the same day to the said Albert 1ST. Arnold; that no portion whatever of the proceeds of said note and mortgage and check were ever received by Minnie E. Arnold or any person for her or was ever expended or used for her benefit; that Minnie E. Arnold did not receive any of the benefits of said note and mortgage aforesaid; that during the said period while the said Minnie E. Arnold was a distracted person, she occasionally had lucid intervals of an hour, or more duration in which she would be able to converse intelligently; that the transaction did not occur during such a lucid interval and while her mind was strong enough to enable her to transad, ordinary business; that Albert 1ST. Arnold, immediately after receiving the proceeds of defendant W. A. Kirkpatrick’s check, appropriated all of said money to his own use and immediately abandoned his wife, and left her penniless and without means of support in the said premises of said Mrs. Dugdale; that the note and mortgage executed by the said Minnie E. Arnold on October 1, 1906, became due on October 24, 1907; that the same or any part thereof, has never been paid. The above recital of facts in the decree is substantially supported by the evidence in the record, except as to the amount of the two checks executed by Kirkpatrick upon the delivery to him of the note and mortgage in question. The check designated as being for $35 was in fact for $35.30 payable to the order of Edward O’Conner, who negotiated the loan, and the check designated as being for $965 payable to Minnie E. Arnold was in fact for $964.70. The evidence further discloses that the check for $964.70 purported to bear the endorsemeent of Minnie E. Arnold prior to its presentation for payment by Albert N. Arnold, who also endorsed said check by the name of Bert Arnold.

It is conceded by counsel for appellant that Minnie E. Arnold was a distracted person at the time she executed the note and mortgage in question and that no actual benefit or advantage accrued to her from the money or any part thereof obtained from appellant upon said note and mortgage, but notwithstanding this, it is insisted, that as neither the appellant, nor the loan broker, nor the notary public, had any knowledge that Minnie E. Arnold was a distracted person, and they having acted in entire good faith in negotiating said loan and procuring the execution of the note and mortgage, appellee is not entitled to the benefit of the decree here entered without restoring to appellant the money realized on said note and mortgage; or, in other words, that upon the facts as found and conceded to be true appellee is not entitled to the relief prayed unless appellant is placed in statu quo. On the other hand it is contended by counsel for appellee that in the absence of proof that Minnie E. Arnold derived any benefit or advantage by the execution of the note and mortgage in question, appellant is not entitled to a decree foreclosing said mortgage, and that the decree here entered is in accord with the well established principles of equity.

It must be regarded as the settled law of this state that a deed or contract made by an idiot or lunatic before inquest found is merely voidable and not void. Scanlan v. Cobb, 85 Ill. 296; Burnham v. Kidwell, 113 Ill. 425; Ronan v. Bluhm, 173 Ill. 277; Eldredge v. Palmer, 185 Ill. 618; Hardy v. Dyas, 203 Ill. 211; Peck v. Bartelme, 220 Ill. 199; Rev. Stat., chap. 86, sec. 15. Whether or not in such case the aid of a court of equity may be successfully invoked on behalf of a lunatic, to set aside and rescind an executed contract whereby the lunatic had derived no benefit, where the other party to the contract acted in ignorance of the lunacy and in perfect good faith, without restoring or offering to restore such other party to the contract to bis original position, is a somewhat mooted question.

In Pomeroy’s Equity Jurisprudence, vol. 2, 3rd ed., sec. 946, it is said: “A contract executed or executory made with a lunatic in good faith, without any advantage taken of his position, and for Ms own benefit, is valid both in equity and in law. And where a conveyance or a contract is made in ignorance of the insanity, with no advantage taken, and with perfect good faith, a court of equity will not set it aside, if the parties cannot be restored to their original position, and injustice would be done.”

In Gribben v. Maxwell, 34 Kans. 8, 55 Am. Rep. 233, the conveyance sought to be annulled was executed and. deliverd by a lunatic before an inquisition and finding of lunacy, and no offer was made to return to the purchaser the money paid for the conveyance of the land. It appeared that the purchaser acted in good faith; that he paid a fair and reasonable price for the land; that he had no knowledge or information of the lunacy of the grantor; that there was nothing in the looks or conduct of the grantor at the time to indicate that she was of unsound mind or incapable of transacting business; but on the contrary that she was apparently in possession of her full mental faculties. The court in passing upon the question involved said: “An examination of the cases upon the subject shows that there is an irreconcilable conflict in the authorities. We think, however, that the weight of the authority favors the rule that where the purchase of real estate from an insane person is made, and a deed of conveyance is obtained in perfect good faith, before, an inquisition and finding of lunacy, for a sufficient consideration, without knowledge of the lunacy, and no advantage is taken by the purchaser, the consideration received by the lunatic must be returned, or offered to be returned, before the conveyance can be set aside at the suit of the alleged lunatic or one who represents him.”

Behrens v. McKenzie, 23 Iowa 333, 92 Am. Dec. 428, was an action upon an injunction bond wherein it was claimed that the defendant was insane when he signed the bond. Speaking of the liability of insane persons on contracts, Mr. Justice Dillon there said: “They are not usually held liable on contracts purely executory not for necessaries, particularly where the mental unsoundness is known to the other party, or might have been by the exercise of ordinary observation. But with respect to executed contracts, the tendency of modern decisions is to hold them liable in cases where the transaction is in the ordinary course of business, is fair and reasonable, and the mental condition was not known to the other party, and the parties cannot be put in statu quo.”

In Scanlan v. Cobb, 85 Ill. 296, Cobb, as guardian of Fannie Hendricks, filed his bill against Scanlan and Lyman to set aside a deed to Scanlan executed by his ward before she was adjudged insane, and also a deed of trust on the same property described in the deed, from Scanlan to Lyman, as trustee, upon the ground that the grantor was insane when she executed the deed to Scanlan. The deed was taken by Scanlan in good faith, and without culpable negligence, and it was held, that he was entitled at all events to be reimbursed that which he had paid and which Mrs. Hendricks had received the benefit of. It was there said: “In Menkins v. Lightner, 18 Ill. 282, the decree was reversed solely upon the ground that the amount of purchase money paid to the lunatic was not allowed to the other party in stating the account. And the English doctrine, and that recognized generally by the courts in this country, is, where a purchase from an insane person is made and a conveyance obtained in good faith, for a sufficient consideration, and without knowledge of the insanity, the consideration must be returned before the conveyance will be avoided. And the courts have gone further and held, that where persons apparently of sound mind, and not known by the adverse party to be otherwise, enter into a contract which is fair and bona fide, and which is executed and completed, and the property which is the subject of the contract cannot be restored so as to put the parties in statu quo, such contract cannot be set aside by the alleged lunatic or those who represent him,” citing numerous authorities in support of the text. And it was there further said: “If Mrs. Hendricks received the benefit of this money, either in the payment of debts, or in the furnishing of necessaries for her use, there can be no question she should be held responsible for it. But even if she did not thus receive the benefit of it, it would seem, on the principle recognized by the authorities above referred to, her recourse should be on Van Wormer” (her attorney in fact) “and not on Scanlan.”

Burnham v. Kidwell, 113 Ill. 425, was an action in ejectment by Kidwell, an idiot, by his conservator, wherein the plaintiff sought to disaffirm his deed. It was held that where land is bought of a person before he is adjudged an idiot, in good faith, by the purchaser, or money is loaned to him in good faith, and he secures its payment by mortgage, and the proceeds of the sale or loan are expended in and about his care and support, the deed or mortgage cannot be avoided until the money so received by the idiot is returned, or offered to be returned.

In Ronan v. Bluhm, 173 Ill. 277, it was held that where a grantee, with notice of his grantor’s incapacity to manage his property, delivers to the latter money or property in exchange for lands, and the consideration paid is lost or wasted, or where the consideration is so inadequate as to indicate the grantee’s intention to defraud, upon a bill by the grantor or Ms representative to set aside the sale, the grantee cannot invoke the maxim “he who seeks equity must do equity,” to obtain a return of the consideration. In discussing the questions there involved it was said: “The doctrine that a contract may not be rescmded by the court except the party in whose interest the rescission is awarded shall restore that wMch was received by virtue of the contract, is applicable, in general, only to contracts made by persons compos mentis and under no disability. Whether it is applicable, or, if applicable, to what extent it should be modified to meet particular cases where persons non compos have received money or property as the consideration for an agreement, has been much discussed by text writers and is the subject of many, not altogether harmonious, judicial decisions. The rule wMch seems to commend itself to our sense of justice and which is supported by what we conceive to be the weight of authority, is that a completed contract of sale of lands by a grantor who is insane but has not been judicially declared insane, for a fair consideration in money or property, to a grantee who entered into the contract without fraudulent intent and without knowledge or notice of the disability of the grantor, will not be set aside in favor of the grantor or his representatives unless the purchase price be returned, or the property parted with by the grantee be restored. (Scanlan v. Cobb, 85 Ill. 296; Boswell on Insanity, secs. 413, 415.)”

In Eldredge v. Palmer, 185 Ill. 618, where an alleged insane grantor appears to have received the consideration for the land conveyed it was held, that a deed by one from whom a conservator is subsequently appointed should not be set aside without requiring restoration of the money paid by the grantee and the return of the property or its equivalent, which he conveyed to a third party at the instance of the grantor in part consideration for his deed, where the grantee had no knowledge or notice of the grantor’s' infirmity, or of any influence by the party to whom the grantee made his conveyance.

In Hardy v. Dyas, 203 Ill. 211, it was held that where a grantee knowing the grantor’s incapacity to manage his property, pays him money which is lost or squandered, or if the grantee intended to defraud the grantor of his property, a court of equity may set aside the deed without requiring the consideration to be refunded, and in the discussion of the questions involved the court quoted with approval the doctrine announced in Ronan v. Bluhm, supra.

The doctrine announced in the cases cited must necessarily be considered with reference to the particular facts in each case. In every instance in which a person alleged and shown to have been insane, when he entered into the contract sought to be avoided, was required to place the other party to the contract in statu quo, such insane person had derived some benefit or advantage under said contract. In the case at bar the insane mortgagor derived no benefit or advantage whatever by the execution of the mortgage. Furthermore the equities of the parties are not equal. The mortgagor was as much incapacitated to appoint her husband her agent to act for her in negotiating a loan as she was to act for herself in that respect. While she was helpless to protect herself it was within the power of appellant and he was in a position to ascertain as it was his duty to do, by what authority her husband assumed to act as her agent and the scope of his agency. An inquiry by appellant, such as he might reasonably have made to ascertain these facts, would have doubtless disclosed the mortgagor’s want of mental capacity.

The decree of the circuit court was right and will be affirmed.

’Affirmed.


author: Mr. Justice Philbrick

text:
    Fairbanks, Morse & Company, Appellant, v. A. V. Wills et al., Appellees.
    1. Sales—when delivery to be made. In the absence of contract arrangement the law implies that merchandise to be manufactured and shipped shall be so manufactured and shipped within a reasonable time.
    2. Sales—what not waiver of damages for delay in delivery. The acceptance of merchandise does not waive the right thereafter to claim damages for delay in delivery.
    3. Amendments and jeofails—when not abuse of discretion to allow amendments. It is not an abuse of discretion for the court to allow amendments to be filed after the arguments have commenced, especially where upon allowing such amendments to be filed the court offers both to re-open and continue the cause.
    Assumpsit. Appeal from the Circuit Court of Pike county; the Hon. Habry Higbee, Judge, presiding.
    Heard in this court at the November term, 1909.
    Affirmed.
    Opinion filed December 1, 1910.
    Anderson & Matthews, for appellant.
    Jefferson Orr and William Mumford, for appellees.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by appellant to recover for the contract price of a certain boiler purchased by appellees from appellant. The trial below resulted in a verdict and judgment for the defendants and against the plaintiff for costs; to reverse that judgment this appeal is prosecuted.

There are four questions raised on the record. The first is upon the admission of the evidence under the condition of the pleadings. At the time of the offering of the evidence, the declaration consisted of only the common counts. The only plea filed was the general issue, and with the pleadings in this condition, the cause was heard by the court without a jury.

Upon the hearing appellees offered evidence showing special damages by reason of a failure to deliver the boiler. Appellant insists that this evidence was incompetent under the state of the pleadings at that time and that no evidence of special damages was proper, but that in order to admit such evidence it was necessary to have filed a special plea. The court heard this evidence over objections of appellant, but subject to their objection. After the argument commenced, the question was again raised by motion to exclude , this evidence. The court then held that the evidence was not proper under general issue. Appellee asked leave to file a special plea. During the course of the argument this plea was prepared and upon presentation to the court, before the argument was finished, the court granted leave to file the plea over objection by appellant. Upon the granting of this motion over objection, appellant was given by the court leave either to reopen the cause and submit evidence upon the question of special damages, or to have the cause continued until the next term of court, with permission to appellant at that time to offer any evidence desired. Appellant declined to either offer any evidence or to request a continuance, but elected to stand upon its objections to the filing of this plea.

The second question is that the permission to file the special plea at that time was an abuse of the discretion of the court.

The third question raised is that although there may have been delay in the shipping of the boiler, appellees accepted the boiler at the time of its delivery without, at that time, specifically demanding or claiming any special damage, and that by so doing, although special damage may have been caused, all claim thereto was waived by the acceptance of the boiler without specifically claiming special damages.

The fourth question is whether the contract of purchase required a shipment in thirty days or within a reasonable time.

The evidence in this case discloses that appellees purchased from appellant a sixty-horse-power boiler; that the negotiations therefor consummated in the purchase of the boiler on the twenty-third day of May; that appellees were under a large dredging contract in Bates county, Missouri, for the construction of a dredge ditch; that in order to perform this work it became necessary for appellees to purchase a sixty-horse-power boiler to pump water into the ditch for the purpose of floating the dredge-boat, so that it might proceed with its work; that without sufficient water to float it the dredge-boat could not work.

There was a time limit for the completion of the dredge contract; and appellees contend that under their contract for the purchase of the boiler, it was to be shipped to them within thirty days. This is denied by appellant, who claims there was no time limit when the boiler should be shipped. At the end of thirty days appellees were prepared to proceed with their work upon the dredge contract, but for lack of water the boat could not be floated and for this reason they were unable to continue their work. They remained idle until about the first of the following October. The boiler was shipped to them on September 11th. By reason of the failure to receive the boiler, the dredge-boat was compelled to lie idle at a loss of from one thousand to fifteen hundred dollars per month.

Soon after the purchase of the boiler by appellees, they asked and received from appellant the dimensions and fittings of the boiler. Appellant was informed this information was necessary for use in constructing the foundation for this special boiler, and was furnished by appellant. From about June 15th until September 11th, a continuous correspondence was kept up by appellees concerning the delivery of the boiler; on several occasions they were informed that the boiler would be shipped speedily, and without further delay; on other occasions they were informed that the boiler had been shipped, and would be received within a few days, and'upon the continual assurance by appellant that the boiler would be delivered without further delay, and would be received in due time by appellees, they continued to wait for its shipment. Their labor hire alone during the time they were waiting for this boiler amounted to five hundred dollars per month.

That the boiler was not shipped within thirty days is not questioned and upon the contention of appellant that there was no specific time when the delivery should be made, conceding there was no time limit, the law implies an agreement to ship within a reasonable time. Before the expiration of the thirty days, appellant informed appellees it would be shipped within a day or two, thereby conceding that thirty days was a reasonable time within which to prepare the boiler for shipment, and no evidence was offered, and no suggestion or claim made, that thirty days was net a sufficient time within which to build and ship the boiler.

Appellant insists, however, that there is no direct evidence that the delay was unreasonable, that no witness testified thereto. It was unnecessary that any witness should specifically state such fact; it was a question to be determined from all the evidence and from all the facts concerning the case, whether it was shipped within a reasonable time, and the trial court found that it was not, and it was fully warranted in making such finding. There can be no question from this record, that the boiler was not shipped within a reasonable time, neither can there be any question about appellees having been damaged far in excess of the purchase price of the boiler.

The record further discloses, from the correspondence had between appellees and appellant, that appellees were continually claiming that they were being damaged beyond recompense by the unusual and extraordinary delay in delivering the boiler and appellant does not contend or suggest that they have been, at any time, surprised at this claim for damages, or that it was a new matter to them; it is very evident from this record that they were expecting such a claim would be made.

Under the Statute of Amendments and Jeofails it was not error for the court to permit the special plea to be filed at the time such leave was granted, and the court fully offered to protect all rights of appellant, by reopening the cause or continuing it, at its request, both of which were declined by appellant, and conceding it was a question of discretion there was no abuse of discretion in permitting this plea to be filed at that time. But under the rules of pleading, where the plaintiff files a declaration containing common counts alone, the defendant has the right under a plea of non assumpsit to show any damages for delay in the delivery of the goods for which the action is brought by way of recoupment without filing a special plea, and having had the right to do this under the general issue, it would have been error for the trial court to have stricken the evidence from the record on motion of appellant instead of allowing appellee to file their special plea. Cooke v. Preble, et al., 80 Ill. 381; Mayer v. Mitchell & Co., 59 Ill. App. 26.

Upon the question of the waiver of all claim of such damages by the acceptance of this boiler without, at the time of its acceptance, making any specific claim for damages, we do not agree with the learned counsel for appellant. The rule followed in the case of Ramsey et al. v. Tulley et al., 12 Ill. App. 463, holding that the mere acceptance of the article purchased at the time of the delivery is not, of itself, a waiver of any right to claim damages, is the correct rule in this state and it cannot be seriously contended that after the purchase of the boiler by appellees and the construction of the foundation for its use, for this special boiler, and the continual promise of appellant that the boiler would be shipped from day to day followed with the false information that it had been shipped upon a certain date, and the continual waiting for its shipment, with the repeated information to appellant that appellees were being specially damaged by reason of the failure to deliver, that the acceptance of the boiler was of itself any waiver of a right to claim special damage; such a rule would be and is contrary to justice and right. The authorities cited in the case Ramsey v. Tulley, supra, are conclusive upon this question.

The contention of appellant that when the boiler was not delivered by it within a reasonable time, that it then became the duty of appellees to go upon the market and purchase a boiler, capable of doing the work which it was intended should be performed by this boiler, and that the measure of damages in this case-would be the difference between what such boiler could have been purchased for and the contract price of this boiler, with their repeated promise to deliver and the assurance that the boiler would be delivered within a few days, is not tenable and their contention that because appellees did not go upon the market in St. Louis, Missouri, and purchase a boiler capable of doing this work, there is no liability for the special damage, with this boiler expected any day and with everything prepared for the erection, is so unreasonable as to hardly warrant consideration.

We find no error in the record in this cause and the judgment is affirmed.

Affirmed.


text:
    Edwin Beggs, Appellee, v. Postal Telegraph-Cable Company, Appellant.
    1. Telegraph companies—burden to show assent to restrictive provisions. Where conditions are printed upon the back of a telegram blank the burden of proof is upon the party asserting such conditions to show that the sender of the message was cognisant of or had knowledge, presumptive or otherwise, of the conditions named and contained in the printed matter, and unless such is shown the sender of such message is not bound by such conditions.
    2. Telegraph companies—what evidence competent in action for failure to deliver telegram. Held, in such an action, that it was error for the court to reject evidence offered by the company which tended to prove the condition of its service, the means by which it had to transmit messages, etc.
    3. Telegraph companies—duty as to cipher messages. A telegraph company is'under the same obligation to receive and transmit a cipher message as it is to receive and transmit any other message, and it is immaterial in what manner or from whom the sender of such message obtained the cipher code.
    4. Telegraph companies—status of agreements to give precedence to certain classes of messages. Agreements by which a telegraph company undertakes to give precedence to certain classes of messages are void as against public policy.
    5. Gambling—when transactions in grain not. The fact that contracts were made with various farmers who had grain for sale, whereby such grain was purchased for delivery at future times, does not show transactions gambling in character.
    6. Instructions—propriety of giving by court of its own motion. While it will not reverse, it is bad practice for the court to prepare an instruction of its own motion and inform the jury that such instruction was given by the court upon its own motion.
    7. Instructions—approved form as to effect of restrictive conditions printed upon telegram blank. The following instruction upon this subject is approved:
    “The court instructs the jury that the rules and conditions on the back of the message in question are not binding on the plaintiff, unless you believe from the evidence that the plaintiff or his agent knew of the conditions and limitations on the back of the message and with such knowledge assented to them, and if such knowledge • and assent is not shown by the evidence then the matters printed on the back of the message cannot be considered by the jury in determining your verdict.”
    Appeal from the Circuit Court of Macon county; the Hon. Wilham C. Johns, Judge, presiding.
    Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed December 1, 1910.
    Hugh Crea and Hugh W. Housum, for appellant.
    Chester Allan Smith and Buckingham & Gray, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

The declaration is in trespass on the case for failure to deliver a telegram; judgment below was against appellant for $1,125.

The declaration on which this case was finally tried consisted of four counts. The first count alleged that defendant owned and operated a line of telegraph from Decatur, Illinois, to Chicago, Illinois, for hire, etc., and that it became and was the duty of appellant to send all messages offered to it for delivery from Decatur, Illinois, to Chicago, Illinois, in such time as was required by the sender of such message; that appellee was possessed of a large quantity one hundred thousand bushels of No. 2 red winter wheat and desired to sell the same on the Chicago Board of Trade; that by his agent, H. I. Baldwin & Co., he delivered to appellant at 9:10 a. m. on July 8, 1907, a cipher telegram addressed to the Nye & Jenks Grain Co., Chicago, as follows:

“May book, absolute, alchemy, august, devilish, flirting, diagram, absorbing, diameter, absorbing, dictator, absorbing, dignified; all good today.” Signed “H. I. Baldwin & Co., Grain, Review Building, Decatur, Ill.”

Which telegram when translated was as follows:

“Ton may book for shipment 5000 bushels of number 2 red winter wheat on the basis of the price of the Chicago September 1907 future to be loaded on cars for shipment to Chicago during the month of August, 1907, at 94 cts per bushel; 6000 bushels at 94 5/8 cts. per bushel; 25,000 bushels at 95 cts. per bushel; 25,000 at 95 1/2 cts. per bushel; 25,000 bushels at 96 cts. per bushel.”

Averring said sales were only authorized to be made on the date said telegram was delivered to appellant as aforesaid. That prior to the delivery' of the said message appellant was informed by appellee through his agent, H. I. Baldwin & Co., that all such messages in cipher delivered to it before 9:30 a. m. would be for the sale of grain and that it was necessary to have all such messages, directed to any member of the Board of Trade in the City of Chicago, delivered before 9:30 a. m. of the same day; that with this knowledge, appellant received the message, and it became and was its duty to transmit said message to Chicago in time to be received by Nye & Jenks Grain Company to whom it was addressed before 9:30 a. m. July 8, 1907.

The count further avers that said telegram as between appellee and Nye & Jenks Grain Company the words ‘ ‘ On the basis of the price of the Chicago 1907 future” meant, that said Nye & Jenks Grain Co. would buy the said wheat named in the telegram at the price named therein, provided the price of No. 2 red winter wheat September 1907 future on said Board of Trade reached one and a half cents per bushel higher than the price named in the message. That at 9:30 a. m. the price was sufficient to have permitted appellee to have realized a sale as directed by this message, but that appellant delayed the said telegram so that it was not received by the Nye & Jenks Grain Company until 9:30 a. m. of said day, and at that time the price had declined so that it was impossible to make a sale at the prices named in the telegram.

The second count avers substantially the same state of facts as the first, alleging that it thereby became the duty of appellant to send said message to Chicago so that it would be reecived by Nye & Jenks Grain Company by 9:30 a. m., but that appellant, intending and contriving to injure appellee, delayed said message so that it was not received by the said Nye & Jenks Grain Company until 9:45 a. m. and that at 9:30 a. m. of said day the price of . Number 2 red winter wheat was sufficient to have permitted and secured a sale at the prices named in the telegram, but that by 9:45 a. m. the price had declined so it was impossible to make the sale as directed in the telegram.

The third count is substantially the same as the first and second so far as the transactions relating to the delivery and transmisión of the telegram are concerned, and further alleges that if the said telegram had been delivered by 9:30 a. m. that the said Nye & Jenks Grain Company would have bought the said grain at the prices named but that the said telegram was delayed and not delivered until 9:45 a. m. and at that time the price had so declined that the sales could not be consummated at the prices named.

The fourth count is substantially the same as the third.

The trial court overruled a general demurrer to each count of the declaration and appellant filed thirteen pleas. Demurrer was filed by appellee to all pleas except the general issue. The demurrer was sustained to pleas numbered 2, 3, 4, 8, 9 and 10. Replications were filed, and issue joined on remaining pleas and trial was had.

Appellant has made a complete and exhaustive argument of the entire cause and contends as grounds of reversal of the judgment: That the telegram was received for transmission and delivery under the conditions and provisions printed on said telegram which became a contract limiting its liability; that the telegram related to and was a part of a gambling transaction and appellant was not bound to deliver it; that the court erred in refusing to admit competent evidence offered on behalf of appellant regarding the number of lines had between Decatur and the City of Chicago and the number of messages received to be transmitted by it on the morning in question between Decatur, and Chicago; also as to the condition and use of these lines by other operators and that when so used by other operators at different points with which they were connected, it was impossible to use the same from the Decatur office; and that this evidence was competent upon the question of negligence in the transmission and delivery of the message; also that the trial court erred in refusing to admit evidence as to where the Bobinson Code, in which this cipher was written, was obtained, and whether or not appellant had furnished the same to appellee or its agent, Baldwin & Co., for use; that the court erred in not directing a verdict for appellant on its motion; also that the court erred in giving certain instructions on behalf of appellee and erred in refusing certain instructions offered on behalf of appellant and in modifying instruction No. 8 offered by appellant.

The question whether this message was delivered and received under the terms and conditions printed on the telegram blank by appellant was a question of fact for the jury. The rule is well settled in transactions of this character that where conditions are printed upon the back of a message or contract to be signed and by which the sender of such message is sought -to be bound, the burden of proof is upon the party asserting such conditions to show that the sender of such message was cognizant of or had knowledge, presumptive or otherwise, of the conditions named and contained in the printed matter upon said message and that unless such is shown then the sender of such message is not bound by such condition. C. N. W. Ry. Co. v. Simon, 160 Ill. 648

Upon the contention that the message related to a gambling transaction and that any contract in relation to receiving for transmission or delivery of a telegram relating thereto is void, the record discloses that appellee had purchased and contracted for a sufficient amount of grain to have fulfilled the contract which he here directed the Nye & Jenks Grain Co. to book for him; it was not necessary that this grain should at that time have been in his actual, physical possession. The fact that he had made contracts with various farmers who had the grain for sale, and had purchased it from them for delivery at certain future times, the sale of such grain so purchased by him and under these conditions does not constitute the transaction a gambling one and upon the issues raised by the plea relating to gambling transactions, there is no evidence to support the contention of appellant.

Upon the questions of the admission or rejection of evidence; the evidence offered by appellant to prove the condition of its service, and the means by which it had to transmit the messages to Chicago, and whether any other operator was in use of the wire, whether they could be used by the operator at Decatur was proper for the consideration of the jury, as was also the question as to the use of the lines of the company and the number of wires at its disposal for the purpose of sending messages upon the question of an unreasonable delay in the transmission and delivery of the message and it was error to reject such evidence.

In sustaining the objections of appellee as to whether or not appellant furnished appellee with the Robinson Cipher Code the trial court did not err. It is immaterial to appellant company whether a message is written in cipher or not; it is a duty to transmit any message received by it within a reasonable time, without unnecessary delay, in the order in which the message is received and this rule applies to cipher messages as well as any other and the fact- as to where, or in what manner appellee or his agent, H. I. Baldwin, obtained the cipher code was wholly immaterial.

The question whether there was any unreasonable delay or negligence in the transmission and delivery of the telegram and the question of the conditions of the contract relating thereto were questions of fact for the determination of the jury and upon a motion to direct a verdict the trial court cannot weigh the evidence and it did not err in denying the motion of appellant to direct a verdict.

Regarding the contention of appellee that appellant had made a special agreement with H. I. Baldwin & Co. under and by which it had agreed to give its messages, which were in cipher and for the sale of grain upon the Board of Trade, a preference and to send them within a certain specified time regardless of the number of other messages which might be received, was a void agreement, even if the same was made, and no recovery could be- had as against appellant for a failure to perform such an agreement; such an agreement is contrary to the provision of the-Statute and against public policy and could not be enforced. Hurd’s Revised Statute, 1908, sections 6 and 7, . chapter 134; The People v. Telegraph Company, 166 Ill. 15; Inter-Ocean Publishing Co. v. Associated Press, 184 Ill. 438; Field’s v. Brown, Receiver, 188 Ill. 111; Penn. v. Bornman, 102 Ill. 523.

The evidence in this case fails to show any contract or agreement to deliver the message of appellee upon any certain stated time, and a simple request by the sender of a message'that it be delivered within a certain time does not sustain an allegation that appellant contracted to deliver it at a certain time; the simple request to so deliver would not sustain an action in the absence of a special contract to deliver within a specific time. Jacob v. Western Union Telegraph Co., 98 H. W. 402.

It is further insisted that the court erred in refusing to permit witness Fierek, who was the agent of appellant and who received and transmitted the message from Decatnr to Chicago, to testify what his authority was in regard to making special contracts for the transmission or delivery of a message. The law does not permit him to make a contract which would give preference to one message over another but if there were no other messages to interfere and the agent of appellant accepted a message by a special contract which was not prohibited by reason of any rule of law or public policy, and having authority from appellant to receive messages for transmission, appellant would be bound by whatever contract such agent might make in regard thereto within the scope of its business, unless the party so delivering such message knew the authority of such agent was limited in that regard and it would be immaterial what directions or instructions appellant had given him.

Appellant insists that it was error in the trial court to prepare an instruction of its own motion and inform the jury that that instruction was given by the court upon its own motion. While this is not a reversible error it is a practice that should not be adopted. All instructions are in contemplation of law the instructions of the court and while it is a general practice for the attorneys to prepare the same and submit them to the court for examination and approval, after they have been approved by the court they are then the instructions of the court and not of counsel and to designate any specific instruction as having been given by the. court, of its own motion, would tend to call special attention of the jury to that instruction and cause the jury to infer that the other instructions were not the instructions of the court or that the others need not be given the special consideration that the one prepared by' the court on its own motion should be given.

Appellant also complains of the' fifth instruction given on behalf of appellee which is as follows:

“The court instructs the jury that the rules and conditions on the back of the message in question are not binding* on the plaintiff, unless you believe from the evidence that the plaintiff or his agent knew of the conditions and limitations on the back of the message and with such knowledge assented to them, and if such knowledge and assent is not shown by the evidence then the matters printed on the back of the message cannot be considered by the jury in determining your verdict.”

We do not think the instruction is subject to the criticism made; we find no error in the giving of this instruction. The rule of law is that before the sender of a message can be held liable for the printed conditions upon the front or back thereof that it must be shown by the party contending therefor that such party knew of the conditions and assented thereto. This information may come to him by reason of direct notice by calling attention thereto or by reason of his having handled and become familiar with the rules and regulations of the company in the handling and use of the blanks which upon these conditions are printed so that a knowledge might be inferred by the jury, but it is still a question of fact for the jury to determine and they must determine that he did have such knowledge before he can be held to be bound thereby. C. & N. W. Ry. Co. v. Simon, supra; Webbe v. Western Union Telegraph Co., 169 Ill. 610.

The contention of appellee that if the message had been delivered before 9 -.30 a. m. on the morning of the eighth of July, a contract would have been made and the grain sold at the figures named in the telegram is not supported by the evidence. There is no proof that if the telegram had been received at 9:30 a. m. that Nye & Jenks Grain Company would have been able to find a purchaser for this amount of grain upon the Board of Trade or could have consummated a contract of a sale such as appellee contends the telegram authorized or directed. There is no proof that any person was ready and willing to buy that amount of grain at that price; neither is there any proof to sustain the allegations that the Nye & Jenks Grain Company would have taken the grain at the prices named if the telegram had been received prior to 9:30 or at 9:30. The evidence is that the Nye & Jenks Grain Company would have booked the order, for sale, and there is no proof that after booking the order a sale could have been consummated at the prices authorized.

That such a sale and at such price would have been made is a mere speculation and conjecture, and before recovery can be had there must be substantial proof that parties were ready and willing to make such contract and would have done so. The proof in this record is not sufficient to sustain this judgment.

For the errors indicated, the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.


text:
    A. H. Clark, for use of Tuscola Benefit & Building Association, Appellant, v. National Union Fire Insurance Company, Appellee.
    1. Insurance—presumption as to mortgage clause. It will be presumed that a mortgage clause attached to a policy was issued at the time of the execution of the mortgage and that it wag issued for the purpose of protecting the rights of the usee named therein in the mortgaged property in case of fire.
    2. Insurance—iohen change in title does not affect policy. If a policy provides that any change in title or ownership by mortgage or otherwise will invalidate the policy, such policy is not invalidated by a mortgage if attached to the policy is a mortgage clause making the loss, if any, payable to the mortgagee.
    3. Insurance—when authority to agents presumed to continue. If a policy of insurance is issued by agents of the company such agency is presumed to continue until notice to the contrary has been given to the insured or other parties in interest.
    Assumpsit. Appeal from the City Court of Mattoon; the Hon. T. N. Cofer, Judge, presiding.
    Heard in this court at the November term, 1909.
    Reversed and remanded.
    Opinion filed December 1, 1910.
    F. N. Henley and Clarence W. Hughes, for appellant.
    James Vause, Jr., for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by the Tuscola Benefit and Building Association against the appellee upon a policy of insurance, issued by it to Collins & Goar upon property owned by them.

After the issuance of the policy of insurance, a mortgage was given upon the property by Collins & Goar, to the usee herein. After the execution of this mortgage Collins & Goar sold the property to A. H. Clark, nominal plaintiff. After Clark received the conveyance of the property, the mortgage was renewed; a loss occurred by destruction of the property by fire and this suit is to recover for that loss for the benefit of the usee.

Trial was had below without a jury by agreement and on motion of appellee the court excluded all evidence and rendered a judgment in favor of appellee against appellant for costs and appellant prosecutes this appeal to reverse that judgment, urging as grounds for reversal that the court erred in excluding all evidence, in finding for appellee and rendering judgment against appellant.

The record in this case discloses that the policy of insurance sued on was issued by appellee through McCulloch & Hampson, its agents at Mattoon, Illinois; McCulloch & Hampson were at that time duly authorized to issue policies for appellee; the policy was issued and signed by them. After the issuance of this policy, the mortgage from Collins & Goar was executed to usee. This mortgage was executed while McCulloch & Hampson were still, agents of appellee.

After the execution of the mortgage a mortgage clause was attached to the policy by McCulloch & Hampson as agents. This clause bears no date. It will be presumed that it was issued at the time of the execution of the mortgage and that it was issued for the purpose of protecting the rights of the usee herein in the mortgaged property in case of fire. The record does not disclose the date when it was issued. The policy provided that any change in title or ownership by mortgage or otherwise would invalidate the policy. The issuance of the mortgage clause on this policy by its agents was notice to appellee of the execution of the mortgage and instead of cancelling the policy when it had such notice of the execution of the the mortgage by issuing the mortgage clause it will be deemed to have consented to the execution of the mortgage. Phenix Insurance Co. v. Lindley, 111 Ill. App. 266.

On March 6, 1907, consent to the transfer from Collins & Goar to Clark was endorsed upon the policy by McCulloch & Hampson as the agents of appellee. On June 26th, after this consent had been executed, A. H. Clark and wife executed a renewal of this mortgage to usee herein and upon the execution of this renewed mortgage the old mortgage was released of record. The policy was then in force with a mortgage clause providing for payment of loss to the mortgagee; the mortgagee was not changed, neither was the amount of the mortgage changed, it being but a continuance of the old mortgage and the execution of the new mortgage was not a payment of the old mortgage ; before the policy had expired the property was destroyed by fire.

Appellee defends upon the ground that there was a change in the title or ownership of the property without its consent or knowledge, based upon the fact that at the time of the execution of the consent to the change of possession McCulloch & Hampson. had ceased to be the agents of appellee and had no authority to give consent and notice to them was not notice to appellee.

Appellee having issued this policy through McCulloch & Hampson, its authorized agents, and no notice was ever given by appellee to either Collins & Goar, the assured, or to anyone else interested in this policy, that McCulloch & Hampson had ceased to be its agents, A. H. Clark and the usee herein had the right to presume, without such notice, that McCulloch and Hampson continued to be the agents of appellee and had authority as such to make the endorsement made upon this policy by them.

Before appellee can be released from liability it is incumbent upon it to show notice to appellant that McCulloch and Hampson were not its agents at the time of these endorsements and the record shows that no such notice was ever given or attempted to be given or ever came to the appellant or anyone else interested in this policy and appellee cannot, after loss, take advantage of the cancellation of the authority of its agents to perform acts within the scope of the authority of such agents in the performance of their duties as such in connection with this policy; parties dealing with appellee through its duly authorized agents, McCulloch & Hampson, had the right to presume that this agent continued until notice to the contrary. Merchants Insurance Co. v. Oberman, 99 Ill. App. 357; The Watertown Fire Insurance Co. v. Rust, 141 Ill. 85.

It was error in the trial court to sustain the motion to exclude the evidence of appellant, and render a judgment in favor of appellee.

Numerous propositions of law were submitted but it is unnecessary to pass upon them as they will, undoubtedly, be corrected at another hearing in view of what has been said herein.

The judgment below is reversed and the cause remanded.

Reversed and remanded.


text:
    Kate Current, Appellee, v. Sadie L. Enright, Appellant.
    1. Pleading—when plea does not set up defense to action upon promissory note. A plea interposed as a defense to an action upon a promissory note predicated upon failure of consideration is bad where it alleges failure to make delivery of the good will of a hotel business without setting up any acts done or admitted to be done which would affect the patronage of the hotel in question.
    2. Evidence—what tends to establish ownership. Schedules specifying property as used in a particular business, insurance policies covering such property, held, as tending to show that such property was owned by the vendor and was intended to be included by him in a transfer made by bill of sale.
    3. Conveyances—what evidence incompetent to affect bill of sale. It is error to permit an attorney who drew a contract of sale to testify as to what property was not intended to be included within the terms thereof.

      4. Appeals and errors—when bill of exceptions filed in apt time. An order extending the time for the filing of a bill of exceptions operates to extend such time from the date of the expiration of the time as originally fixed, and if the bill of exceptions is filed within the time provided for by such an extension, it is filed in apt time.
    Judgment by confession. Appeal from the Circuit Court of Vermilion county; the Hon. James W. Craig, Judge, presiding.
    Heard in this court at the November term, 1909.
    Reversed and remanded.
    Opinion filed December 1, 1910.
    W. T. Gunn and Jones & Bookwalter, for appellant.
    J. B. Mann, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by appellee against appellant to recover upon a promissory note, dated December 21,1907, for $1,000 due on or before one year after date, payable to the order of Charles R. Current, husband of appellee, and by him assigned to appellee. The note was secured by chattel mortgage' and so endorsed upon the face thereof.

The trial below resulted in a judgment for appellee for $792.50, to reverse which this appeal is prosecuted.

At the time of the execution of this note appellant purchased from appellee the undivided one-half interest in a hotel in Danville, known as Tremont House, for the sum of $2,000, one thousand being paid in cash and this note being for the remaining $1,000. At the time of the purchase Charles B. Current, the payee in the note, executed to appellant a bill of sale; the bill of sale is as follows:

“Articles of agreement, made and entered into in triplicate this 21st day of December, 1907, by and between Charles B. Current, party of the first part, and Sadie L. Enright, party of the second part, witnesseth:
“The first party has sold to second party and second party has bought of first party the undivided one-half interest in and to all furniture, fixtures, goodwill, stock and lease used in connection with the running of the Tremont Hotel in Danville, Vermilion County, Illinois, for the consideration of $2,000 payable as follows;—$1000 cash in hand, the receipt of which is hereby acknowledged, and $1000 in one year from this date, with interest thereon at the rate of six per cent, per annum from date, with privilege of paying the same sooner if desired; said deferred payment to be evidenced by a note secured by a chattel mortgage on the undivided one-half interest hereby sold and purchased.
“The said parties to be equal partners in the carrying on of said hotel business, each to give one-half his time thereto provided that Mr. H. P. Vicburn shall act in the place of the said second party when she so desires and arranges. Said second party hereby assumes the liability and responsibility of a partner in and to the said lease, for the building in which the said hotel is conducted.
“Witness their hands and seals the date first above written.
Charles B. Current. (Seal) ”
Sadie L„ Enright, (Seal) ”

Some time after the delivery of the bill of sale Charles B. Current or appellee removed from the hotel certain furniture, fixtures, etc., under the claim that they were not included in the bill of sale and not intended to pass thereby. Trouble arose between Charles B. Current and appellant and suit was brought upon the note by appellee. Judgment was entered by confession under power of attorney, attached to the note. Upon motion of appellant the judgment was opened and appellant given leave to plead.

■ After filing several pleas and having demurrers sustained thereto and taking leave to amend, appellant amended her first, third, fifth and sixth pleas and filed one additional plea; these were pleas of partial failure of consideration. Issue was joined upon all these pleas by appellee.

To the second plea filed by appellant a demurrer was sustained by the court; appellant elected to stand by this plea and assigns as error the ruling of the court upon the demurrer. This plea avers that under and by the terms of the bill of sale Charles B. Current sold to appellee among other things the good will of the hotel and avers that the good will was not delivered and that by reason of the failure to so deliver the good will there was a partial failure of the consideration of said note to the extent of $900. This plea does not aver that the hotel was not delivered in accordance with the conditions of the bill of sale other than that the good will was not delivered and the plea does not attempt to set forth any act done or attempted to be done by Charles B. Current which would" in any way affect the patronage of the hotel or aver any acts or conduct of Charles B. Current that was of any damage to the hotel. The good will of a place of business is not of itself susceptible of delivery and a delivery of the good will was completed by a compliance with the conditions of the terms of the bill of sale, consequently this plea was bad and the court did not err in sustaining the demurrer thereto.

Complaint is made that the court refused to admit evidence on behalf of appellant which tended to show that Charles B. Current was the owner of the furniture in rooms No. 2 and the parlor and that this furniture was used in connection with the operation of the hotel and the conduct of the business and that this property was removed by Charles B. Current after the delivery of the bill of sale upon the claim that the same belonged to his wife, the appellee herein. In support' of this contention appellant offered in eviT dence Exhibits “4” and “5” which were standard policies of insurance and offered to show that these policies were obtained by Charles B. Current and covered the property in question and described the same as the property of Charles B. Current and Sadie En-right; this was offered as an admission on the part of Charles B. Current that the articles covered by the insurance policies and insured in the name of Charles B. Current and Sadie Enright were used in connection with the running of the hotel, and that insuring these articles in the name of Charles B. Current and appellant tended to show they were included in the bill of sale. The court sustained objections to this evidence.

Appellant also offered Exhibit No. “3” which was a schedule of the property in this hotel and which schedule was made by Charles B. Current at the time the policies of insurance were secured and included all the property in question. This was offered as an admission and declaration on the part of Charles B. Current that the articles therein enumerated were used in the operation and running of the hotel and passed by the bill of sale. The court also sustained objections to this evidence.

The payment of the note in controversy in this case was secured by a chattel mortgage and the note was so endorsed upon its face and it is within the provisions of the statute relating to notes secured by chattel mortgage which permits any defense being made against the assignee of such note that might be made if the suit was brought by the payee therein; consequently all acts of Charles E. Current tending to show ownership of this property or its use in connection with the operation and running of the hotel, as well as any admissions or declarations made by him regarding the same, was competent evidence as against appellee and it was error for the trial court to sustain the objections to this class of evidence.

It is also complained that the court permitted appellee to show or testify as to what was intended to be included in this contract and permitted the attorney, who drew the contract of sale, to testify that certain property in the hotel was not included within the terms of the contract. This was also error; the contract being in writing, parol evidence is not permissible to vary its terms and while it would have been proper for the court to permit appellee to show how and in what manner the property was' used, it was error to permit the attorney to testify that it was not included in the contract.

It is insisted by appellee that the bill of exceptions was not filed in apt time in this cause. The original order entered by the court for the time of filing the bill of exceptions gave appellant thirty days within which to file it; the thirty days would have expired July first; but on June 28th before the time for the filing of the bill of exceptions had expired, appellant entered a motion in open court to extend the time for filing the bill of exceptions thirty days; this order was granted by the court and the time of filing the bill of exceptions extended thirty days, and this extension of the time gave appellant thirty days from the first day of July in which to file the bill of exceptions. It was filed July 29th, within the thirty days and is properly on file.

There are other errors assigned upon this record which will undoubtedly be obviated upon another trial by reason of what has heretofore been said, and it is, therefore, unnecessary for us to further discuss them. By reason of the errors herein indicated the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    Henry Briggs, Appellant, v. M. L. Keplinger, Administrator, Appellee.
    1. Negotiable instruments—when prima facie case established. Where suit is upon a promissory note and the promissory note is admitted in evidence without objection and the defense to such instrument is a plea of want of consideration, the burden of establishing this plea is upon the party pleading it and the introduction of the note makes a prima facie case entitling the plaintiff to recover unless the evidence of the defense sustains the plea- of want of consideration.
    2. Evidence—when impeachment proper. While a party who has . called a witness may contradict him by the testimony of other witnesses, an impeachment of the witness so called is improper.
    Contested claim in court of probate. Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding.
    Heard in this court at the November term, 1909.
    Reversed and remanded.
    Opinion filed December 1, 1910.
    Truman L. Crowder and Peebles & Peebles, for appellant.
    W. H. Steward, Bell & Burton and Rinaker & Rinaker, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Hannah B. Sweet died intestate in Macoupin county, Illinois. Freeman Sweet, her surviving husband, was appointed administrator. Appellant held at the time of her death the following note:

“Portsmouth, Sioto Co. the 16 November, 1873. $5000.00—
One day after my death, I promise to pay to the order of Henry Briggs or his ares the sum of five thousand dollars for value received without interest until due.
No..... Due after death of Hannah Briggs.”

Appellant filed a claim against her estate upon this note. Appellee filed an affidavit denying the execution of the note by his intestate. Upon the hearing appellee placed appellant upon the witness stand and used him as a witness. In his examination appellee undertook to ascertain the consideration for the note and appellant testified as such witness regarding the consideration. Upon the hearing the judgment was rendered upon the note against the estate, an appeal was taken to the circuit court, and a trial de novo was" had.

Before the hearing appellee withdrew the affidavit denying the execution of the note and admitted that the signature to the note was the genuine signature of his intestate; the note was offered in evidence by appellant.

The testimony of appellant, upon the' hearing in the County Court, was taken in shorthand and transcribed. On the hearing in the circuit court the defense was that there was no consideration for the execution of the note. Appellee was permitted to introduce in evidence the transcript of the testimony given in the county court by appellant. Appellee was then permitted to show by other witnesses that appellant had at various times stated the consideration for the note was different from the consideration shown in the transcript of his testimony in the county court. This evidence was admitted by the trial court over the objection of appellant. .

Appellant offered numerous propositions of law which were refused by the court and the finding of the trial court was in favor of appellee and judgruent rendered against appellant for costs, from which judgment this appeal is prosecuted.

Appellant urges as ground for reversal the refusal of the court to hold certain propositions of law which were submitted and refused. The proposition marked refused, of which the most serious complaint is made is as follows:

“The court holds it to be the law of this case, that the production of the note offered in evidence, coupled with the stipulation or agreement of the parties is evidence that the said note bears the signature of Hannah Briggs, who was Hannah Sweet at the time of her death, makes a prima facie case for the claimant in this proceeding, and that the burden is upon the administrator to establish the plea of want of consideration for the execution of such instrument, by the greater weight of the evidence introduced upon the trial.”

The rule is so well settled in this state that where suit is upon a promissory note and the promissory note is admitted in evidence without objection and the defense to such instrument is a plea of want of consideration the burden of establishing this plea is upon the party pleading it and that the introduction of the note makes a prima facie case, entitling the plaintiff to recover unless the evidence of the defense sustains his plea of a want of consideration.

It was error to refuse to hold this as a proposition of law. The transcript of the testimony of appellant in the County Court was improperly admitted. Appellant had offered no evidence in the Circuit Court except the note in question. The transcript did not contradict or dispute any evidence introduced by appellant and objection to it when offered should have been sustained.

Upon the other proposition raised by appellant that appellee having offered in evidence upon the hearing the testimony given by appellant as the witness for appellee upon the hearing in the County Court, thereby vouched for the truthfulness of the witness so placed upon the stand and cannot thereafter impeach such witness. Upon this question the Supreme Court in the case of the American Hoist and Derrick Co. v. Hall, 208 Ill. 597, holds as follows: “Appellant voluntarily put appellee upon the witness stand and made him his own witness, thereby vouching for his credibility, and while it is true it is not bound by its conclusions and might contradict him by other witnesses, yet it could not impeach him.” The same doctrine is held in B. & O. S. W. R. R. Co. v. Mullen, 217 Ill. 203; Chicago City Railway Co. v. Gregory, 221 Ill. 591.

Appellee, having offered this transcript of appellant’s testimony for the purpose of showing what appellant testified to as being the consideration for this note, thereby made appellant his own witness and while appellee was not bound by the truth of this testimony as to the consideration, and while it would have been proper to have shown by other witnesses, who were familiar or acquainted with the facts concerning the consideration for this note, that the consideration stated by appellant in his testimony was not the true consideration, and to have shown by other witnesses, conversant with the facts, what the real consideration was, if there was any, or to have shown by other witnesses that there was no consideration, it was error to permit appellee for the purpose of impeachment to show that appellant had made other and different statements regarding this consideration at various times out of court. There is no pretense, whatever, that appellee expected, when he put appellant upon the witness stand, that appellant would testify to anything different than he did testify.

There is no contention that appellee was surprised by the testimony of appellant or that he was deceived in him as a witness; and the objection of appellant to the testimony of the witnesses to any statements that he had made at previous times, contradictory to his evidence as given in the County Court, should have been sustained. While the testimony given by appellant upon the hearing in the County Court and when transcribed would have been proper for the purpose of impeaching appellant upon the trial in the Circuit Court as to anything to which appellant might have taken the stand and testified to in his own behalf in that trial, it was improper to admit this transcript on behalf of appellee upon the trial and then to permit appellee to show for the purpose of impeaching this testimony that appellant had made different and contradictory statements at other times.

For the errors herein indicated the judgment below is reversed and the cause remanded.

Reversed and remanded.