text:
    F. L. Wilson, Appellant, v. Robert Morris Hilligoss et al., Appellees.
    Gen. No. 8,872.

      Opinion filed January 14, 1935.
    Ward & Pugh, of Slielbyville, for appellant.
    W. H. Craig and Geo. B. Rhoads, both of Shelby-ville, for certain appellee.
   Mr. Justice Davis

delivered the opinion of the court.

A bill was filed in the circuit court of Shelby county by appellant, P. L. Wilson, for the partition of certain real estate, and a decree for partition and sale was entered and the land was sold to C. M. Boling. The report of sale, made by the master in chancery, was confirmed and a deed delivered to said purchaser. The purchaser filed a petition in said court praying that the court direct the return of his money by the master in chancery and for a cancellation of said deed, and that the sale and decree leading up thereto should be held for naught. Upon a hearing the court ordered that said sale be set aside and the order approving the ■same be vacated and that the deed be canceled and held for naught, and that the master return to said C. M. Boling the checks tendered by him in payment for said premises. This appeal is from the decree setting aside said sale.

The bill for partition was filed to, the June term, ■A. D. 1933, of said circuit court,, and appellant was hole complainant and Robert M. Hilligossand bis minor son, Warren W.' Hilligoss, were .defendants. The bill was filed for the partition of real estate that was owned by Olive F. Hilligoss in her lifetime, she having died intestate on February 12, 1930, leaving her husband and minor son as her sole and only heirs at law.

The bill alleges that Bobert M. Hilligqss, husband of the deceased, never at any time elected to take dower in said real estate as surviving husband of said Olive F. Hilligoss, deceased, but did on May 7, 1932, convey and quitclaim, for a valuable consideration, to the complainant all of his right, title and interest in said real estate, to wit: an undivided one-third interest therein; that by the death of said Olive F. Hilligoss said Warren W. Hilligoss became seized of an undivided two-thirds interest in said described premises; and that by failure to elect dower, as is provided by statute, the said Bobert M. Hilligoss became seized of an undivided one-third interest therein, and that by the conveyance of such interest by said Bobert M. Hilligoss the complainant became seized of an undivided one-third interest therein, as tenant in common with said Warren W. Hilligoss. A guardian ad litem was appointed for the infant defendant, Warren W. Hilligoss, who filed an answer. The other defendants were defaulted. The case was referred to the master in chancery to take and report the testimony to the court. A decree for partition was entered in which there was a finding that the surviving husband of the deceased, by quitclaim deed, conveyed to the complainant all his right, title and interest in and to said real estate, and being a one-third interest therein; that the husband never at any time elected to take dower as provided by statute, but did, by virtue of said conveyance, elect to take one-third interest in said real estate in fee simple in lieu of dower; that by virtue thereof appellant is entitled to a one-third part of said premises in fee simple and the minor son a two-thirds part thereof as tenants in common.

The property was offered for sale twice by the master in chancery. Eobert M. Hilligoss was the first purchaser, but he failed to comply with the terms of sale and the same was again offered for sale and appellee, C. M. Boling, ivas the purchaser for the sum of $2,200, and the sale was approved and the purchaser received a master’s deed for the premises, which is dated September 4, 1933. On September 9, and during the same term of courts Boling filed a petition to set aside the sale and for a refund of the money paid to the master and asked to have the decree confirming the sale set aside. The 'petition alleged that administration was never had on the estate of Olive F. Hilligoss, and that ho election by Eobert M. Hilligoss, her husband, could be made until administration was had upon the estate of the deceased, the year for election not having begun, and that the quitclaim deed made to appellant was made prior to the beginning of said year and before any election had •been or could be made, and it ivas made to a stranger to the title and would not bar any inchoate right of dower, and, therefore, no title passed to appellant by reason of said deed and that appellant had no interest authorizing him to bring a partition suit.

Wherefore the petitioner says, in bidding at said sale, he parted with his money under a void decree; his money was taken without his receiving anything therefor and contrary to equity and good conscience and good faith.

Appellant filed a general and special demurrer to the petition, ivhich was overruled by the court. Upon a hearing of said cause upon the petition taken as confessed as to said respondent, F. L. Wilson, and the answer of the guardian ad litem, for said infant defendant, Warren W. Hilligoss, and said Eobert M. Hilligoss appearing by his solicitor and said F. L. Wilson also appearing by his solicitors and the master in chancery, J. C. Willard, being personally present in open court, the court found that it had jurisdiction of the parties and the subject matter of the proceeding; that the allegations of the petition as amended are true; that Olive F. Hilligoss died intestate on February 12, 1930, leaving her surviving her husband, Robert M. Hilligoss, and her minor son, Warren W. Hilligoss, her only child and only heir at law; that no administration has ever been had upon her estate; that on May 7, 1932, her surviving husband, Robert M. Hilligoss, made, executed and delivered to the respondent, F. L. Wilson, his quitclaim deed by which he quit-claimed to said F. L. Wilson his interest in the premises in controversy; that thereupon said F. L. Wilson instituted this partition suit which passed to a decree of sale and that at said sale the petitioner, C. M. Boling, became the purchaser of said premises; that the master’s report of sale was approved ánd the master issued to said Boling his deed and in payment for said premises said petitioner, O. M. Boling, made and delivered to said master his checks in payment of the purchase price; that said checks have not been cashed by the master but are held by him awaiting the order of the court in this proceeding; that the deed delivered by the master has never been placed of record by the petitioner, and in this proceeding said petitioner tenders back said deed for cancellation and requests the court to enter an order herein directing the master to deliver to him his checks which the master now holds and which the petitioner delivered to the master in payment of the purchase price for the premises. The court further found that by the execution and delivery of said quitclaim deed by the said Robert M. Hilligoss, on May 7, 1932, to F. L. Wilson, he obtained no title to said premises on which to base the partition suit and, therefore, the petitioner, C. M. Boling, is entitled to the relief prayed. The decree granted the prayer of the petition and set aside the order approving the sale and canceled the master’s deed and directed the master to return to the purchaser the checks and payments made for the premises,

As grounds for a reversal of said decree appellant maintains that the court erred in refusing to sustain his demurrer to the petition; that the court erred in decreeing that the sale made by the master be set aside, and in decreeing that the deed executed by the master in chancery be canceled and the master directed to return to the purchaser the checks tendered in payment of the premises.

It is claimed by appellant that the only contention raised by the petition, filed by the purchaser at the master’s sale of the real estate in question, is that no letters of administration having issued in the estate of Olive F. Hilligoss, her husband could not waive dower or elect to take one-third in fee in the real estate sought to be partitioned, the petition, alleging, “the husband can make no election until administration is had upon the estate of the deceased, the year for election not having begun, ’ ’ and stating that there can be no question as to the law, as it has been definitely decided by the Supreme Court in the recent case of Gruner v. Rice, 333 Ill. 112, that waiver and election can be made where no letters of administration had ever issued.

It is true that one of the reasons assigned by appellee why F. L. Wilson, the complainant, had no interest in the real estate sought to be partitioned was that no letters of administration having issued in the estate of Olive F. Hilligoss, her husband could not waive dower or elect to take one-third in fee in the estate sought to be partitioned, and it is also true that the right of a surviving spouse to waive dower in the real estate of which the husband or wife died seized, and elect to take in lieu thereof one-third of the real estate in fee, cannot be made to depend upon letters of administration being issued on the intestate estate; however, other reasons are alleged in the petition why the relief prayed for should be granted. The petition alleges that F. L. Wilson, the sole complainant in this cause, at the time he filed the bill herein, and continuously thence hitherto, had no interest in said real estate, and then stating reasons in support of such allegation, and also that Robert M. Hilligoss has made no election under the statute in such case made and provided, and can make no election, then stating why he had not and could not make an election, and that the quitclaim deed was made to a stranger to the title and would not bar any inchoate right of dower and, therefore, said Robert M. Hilligoss in making said conveyance passed no title and said F. L. Wilson took no title, and when he brought this partition suit he had no interest authorizing him to bring said partition suit, or apply to the court for relief in said premises, which matters make the decree of partition and the decree of sale following it null and void.

It is also contended that the question of title to the real estate partitioned in this suit was settled and determined by the decree of partition, and that it was final in reference to the title, and the matters therein judicially determined cannot be questioned or readjudicated by appeal from a decree of sale, much less by a petition of the purchaser to set aside the sale held under the decree of sale. While it is true that the decree for partition cannot be reviewed on appeal from a decree of sale, and that appeal must be taken from a decree of partition, if that is questioned, yet the decree for partition, the decree for sale, the order approving the sale and the petition of C. M. Boling, the purchaser, were all had and filed at the same term of court. All of the proceedings in this case except the appeal took place prior to the time the Civil Practice Act, Cahill’s St. ch. 110, ¶ 129 et seq., became effective.

A term of court, although continuing for weeks or months, is regarded by the law as but a single day, or unit of time, and during the term at which a judgment or decree is entered the record remains in the breast of the court, and the court may, at any time during the term, amend it or set it aside on its own motion, or for good cause shown,, as justice and the right of the case may seem to require. Krieger v. Krieger, 221 Ill. 479; Bushnell v. Cooper, 289 Ill. 260.

Dower at common law is an estate for life of the widow in all lands in which the husband was seized in fee during marriage. The right of dower in this State is derived from the common law and not the statute, though the statute in relation to dower has recognized and extended the right. Steinhagen v. Trull, 320 Ill. 382. Our statute in relation to dower extends the right of dower to the surviving husband in the lands of the wife.

This right of dower is not changed by the amendment to the Statute of Descent, though the manner of its assertion and the method in which it may be waived are affected by the amendment. The spouse entitled to dower is required, within one year after letters of administration are issued, to elect between the right to take dower in the real estate and the right to receive one-third of the real estate of which the intestate died seized in fee. Such waiver and election may be made by filing or recording an instrument in writing expressing his or her intention to waive dower in such real estate or by failing to file such instrument. Par. 1, eh. 39, Cahill’s Rev. St. 1933.

This amendment confers upon the widow or husband the right to receive as his or her absolute estate, in lieu of dower therein, one-third of each parcel of real estate of which the intestate died seized and in which such widow or surviving husband shall waive his or her right of dower. The waiver of right of dower is therefore a condition precedent to the right of the widow or surviving husband to claim one-third of the real estate in fee and in order to establish his or her right to the interest in fee a waiver of dower in one of the manners provided by the statute must be alleged and proved. Until such right is exercised by one of the methods prescribed he or she merely retains the dower and would not acquire an interest in fee. Steinhagen v. Trull, supra; Braidwood v. Charles, 327 Ill. 500.

The bill contained no allegation of a waiver of the dower interest of the surviving husband and no evidence of any such waiver was presented on the hearing, and, therefore, the interest of the surviving husband in the real estate in question was a dower interest and he was not the owner in fee of a one-third interest therein. Unassigned dower is not subject of lease, transfer or sale, and can only be released to the owner of the fee, and a deed, by the person having a dower interest in land unassigned, to a person other than the owner of the fee conveys nothing. Fletcher v. Shepherd, 174 Ill. 262; Lewis v. King, 180 Ill. 259.

Robert M. Hilligoss, the surviving husband of Olive P. Hilligoss, not having waived his right of dower in one of the methods provided by the statute, appellant, P. L. Wilson, did not become the owner of an undivided one-third interest in the lands in question or acquire any right or title thereto. This being so it follows that the lands in question were not held in joint tenancy, tenancy in common or coparcenary, and hence they were not, either at common law or under the statute, subject to partition. The lands not being subject to partition, the court had no jurisdiction of the subject matter of the suit, and hence the whole proceeding is absolutely null and void. Reynolds v. McCurry, 100 Ill. 356.

It is also contended by appellant that the well known rule of law, that in judicial sales the rule of caveat emptor applies and is binding upon the purchaser in such sales. It is a general rule, subject to few exceptions, that in all judicial sales the doctrine of caveat emptor applies.

One of the exceptions to the rule being, ivhere the sale is void, and the purchaser in such event can recover back his purchase money. In the case of Dorman v. Lane, 1 Gilm. (Ill.) 143, 150, it is said: “It was also shown that the same, land had been sold previously by Lane, under the authority of an Act of the legislature to pay the same debt, and the proceeds of the sale received by him. This Court, by a former decision, declared the Act, under which this sale has been made, unconstitutional and void, and the rule of law is, that a sale under a void authority is also void, and the purchaser can recover back the purchase money.’’

The purchaser at a judicial sale is always entitled to such interest as the defendant or other person whose land is sold actually has. If the sale from any. defect in the proceeding is so void that it cannot transfer such title and interest as the defendant or other person whose land is sold has, then the purchaser is not bound by his bid, but may successfully resist any action seeking its enforcement. This is not upon the ground that the title is worthless, but because the title bought cannot be transferred to him by the sale. Thrift v. Fritts, 7 Ill. App. 55, 58, citing Freeman on Execution, sec. 301.

The complainant in the partition suit, F. L. Wilson, had no interest in the lands in question; Warren W. Hilligoss was the sole owner of the lands subject to the dower interest of his father and said lands were not held in joint tenancy, tenancy in common or coparcenary, and so were not subject to partition, and this being so it follows that the court had no jurisdiction of the subject matter of the suit, and hence the whole proceeding is absolutely null and void. For that reason the purchaser, C. M. Boling, is entitled to the return of his money because the title bought cannot be transferred to him, and the rule of caveat empior will not apply.

It having been called to the attention of the court that the complainant, F. L. Wilson, had no interest in the lands sought to be partitioned and that the same were not held in joint tenancy, tenancy in common or coparcenary and that said lands were not, either at common law or under the statute, subject to partition, and for that reason the court had no jurisdiction of the subject matter of the suit, and that all of the proceedings had in such case were void, it was authorized without the filing of a petition and of its own motion to set aside the sale, and having entered such order it could not be said that it at the same time could not cancel the deed and order a return of the purchase price.

When the decree of the court was entered on said petition, the checks given in payment of the purchase price were still in the hands of the master awaiting the order of the court on said petition, and the deed had never been placed on record and was in the hands of the purchaser and had been tendered back for cancellation, and equity and justice required that such decree be entered by the court.

We are of opinion that there is no reversible error in the record. The decree of the circuit court is, therefore, affirmed.

. Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dove

license: Public Domain

text:
    Martha Crawford, Guardian of Juliana Crawford, Appellee, v. Abraham Lincoln Life Insurance Company, Appellant.
    Gen. No. 8,797.

      Opinion filed August 24, 1934.
    Rehearing denied and opinion slightly modified February 11, 1935.
    North, Gtbboney & North, of Rockford, for appellant.
    Seyster & Fearer and F. W. Burchell, all of Oregon, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

On November 2, 1932, Leslie B. Crawford executed a written application for a life insurance policy in the appellant company and delivered the same to Harold Seas, general agent for the company, who sent it to the home office of the company at Springfield. The policy as applied for was issued, and on or about November 12, 1932, Seas received from the company the policy, dated November 10,1932. Crawford was a druggist in Oregon, Illinois, and Seas took the policy to his drug store on the day he received it, found the insured there, showed the policy to him and delivered to him a receipt, by the terms of which appellant acknowledged the receipt of $136.20, the first premium upon the policy. At this time, for the purpose of having the death benefits, as provided in the policy, paid in monthly instalments rather than in a lump sum, Crawford executed a written request directed to the company and this request and the policy were returned by Seas to appellant, and the requested indorsement was made at the home office under date of November 22, 1932, and the policy was returned to Seas, who received it with the requested indorsement thereon. On November 22 or 23, 1932, Seas took it to insured’s place of business. Mr. Crawford was not there, but Mr. Snyder, an employee, was, and the policy and á letter from the company addressed to Mr. Seas, advising him that the requested indorsement had been made and that the policy was being returned for delivery to the insured, were left on the prescription counter in the drug store where Mr. G-liddon, a pharmacist, also in Mr. Crawford’s employ, found them, and he placed them in the iron, fireproof safe of Mr. Crawford, where they remained until after Mr. Crawford’s death, which occurred on November 26, 1932. Due notice and the required proof of death was made to appellant, who declined to recognize the claim as valid on the ground that the first premium had not been paid or the policy delivered while the insured was in good health.

On April 14, 1933, this suit was instituted. The declaration consisted of two counts. The first count set forth, in haec verba, the policy, a copy of the application being attached thereto. The second count omitted the application. In both counts it was alleged that appellant, on November 10, 1932, for a good and valuable consideration, made, executed and delivered to the insured its contract of insurance by which it promised and agreed to pay to appellee, upon the death of her father, the insured, the sum of $5,000 upon receipt of due proof of his death. The declaration then alleged that his death occurred on November 26, 3.932, after the execution and delivery of the policy, averred that satisfactory proof of death was furnished, that insured, during his lifetime, kept, performed and complied with all of the terms thereof to be kept and performed by him, and that likewise, the beneficiary had kept, and performed all the terms and provisions of the policy on her part to be kept and performed. A demurrer to the declaration was overruled.

Appellant then filed a plea of the general issue and several special pleas. In the first, fourth and fifth spe-' cial pleas it was averred that the cause of action was based upon the insurance policy set forth in the first-count of the declaration; that the application therefor provided that the insurance should not take effect until the first premium was paid and the policy delivered and received by insured during his lifetime and while he was in good health. The plea then averred that the insured was not in good health on the day the insurance policy was delivered and received by him, but he was then afflicted with a fatal disease known as tumor on the brain, by reason whereof the contract of insurance did not become effective and binding on appellant. The second .and third special pleas alleged that the insurance contract provided that the insurance applied for should not take effect until the first premium was paid and the policy delivered to the insured and received by him during his lifetime and in good health, and averred that the premium was not paid prior to the death of the insured and concluded that the contract of insurance was therefore null and void and of no effect. To the second and third special pleas, replications were filed.

In one replication appellee averred that the first premium provided to be paid in the policy was paid prior to the death of the insured. In another replication appellee averred that the appellant unconditionally delivered said policy of insurance to the insured on November 14, 1932, and in his lifetime, and thereby waived the payment of said first premium. Issue was joined on the first replication and the court overruled a demurrer to the second replication. To the first, fourth and fifth special pleas a demurrer was sustained. Subsequently additional special pleas were filed, which set up certain statements in the application to the effect that the insured had not consulted a physician within 10 years immediately prior to signing . the application, that he was, at the time the application was made, in good health, that he did not have, at the time the application was made nor had he had at any time, fits, rheumatism, asthma, pleurisy, influenza, dyspepsia, goiter, ear abscess, any disease of the brain, nervous system, eyes, heart, luiigs, kidney, gall bladder or other abdominal organ. These pleas then averred that these statements were untrue, that insured had consulted a physician within the 10-year period, that he was not in good health at the time of the signing of the application and that at the time the application was signed by him he was suffering from a disease of the brain, nervous system, eyes, kidneys and gall bladder. To these pleas a demurrer was sustained. Appellant elected to abide by its pleas to which a demurrer had been sustained and to abide by its demurrer to the replication to the third plea. With the pleadings in this condition, a trial was had, resulting in a verdict in favor of appellee, the plaintiff below, for $800,. upon which judgment was rendered and the record is in this court for review by appeal.

Appellant says in its brief that there is no dispute as to the facts in this case. Appellee, in order to maintain her action, proved by Mr. Seas, the general agent of appellant, the facts as hereinbefore set out about the making of the application, the receipt by him of the policy from the home office of the company on or about November 12, 1933, the fact that he then took it to the insured, Mr. Crawford, whom he found at his drug store, that he exhibited the policy to him there, then sent it back to the company for the indorsement of the instalment provision, and of its subsequent return to him from the home office with a letter from the vice president, stating: “We return herewith the above policy for delivery to the insured, having endorsed it to provide for payment of the benefit in installments in accordance with his request dated November 8, 1932.” Mr. Seas also testified that after he received this letter and policy he again went to the drug store of Mr. Crawford and left it for him and detailed what occurred there. He also identified his signature to the receipt for the initial premium of $136.20, which receipt contains the name of appellant, gives the number of the policy, the amount of the premium and gave the effective date thereof to be November 10, 1932. This receipt is addressed to insured and states: “Receipt of the above described premium is hereby acknowledged. This receipt is valid and binding on the company only if countersigned by Harold Seas. Conntersigned Nov. 12, 1932 by Harold Seas Agent. John E. Neal Secretary.”

The manager of the underwriting department of appellant also testified on behalf of appellee, as to the manner of executing policies and the signatures of the officials of the company as they are shown to appear upon the policy, upon the indorsements thereon and upon the foregoing premium receipt. It also appeared from the evidence that his widow saw the policy in his safe at the drug store shortly after his death, and the receipt was found in the pocket of his trousers a couple of days after his death; that on Thanksgiving Day, which was on November 24, in 1932, insured spent the day with his wife, daughter and sister at Dixon; that the morning of that day and the day previous were spent by him at his drug store. He died on the evening of November 26, 1932, and it was stipulated that due proof of his death was received by appellant.

Dr. William S. Bowen was called as a witness on behalf of appellee and he testified that he was first called to treat insured about three hours before he died; that his death was caused by chronic pachymeningitis or brain tumor; that he was the medical examiner for appellant and made the examination of insured for appellant when he took out the policy and in his opinion at that time insured was in normal health, but from his findings at the autopsy he was of the opinion that insured was suffering from the disease of which he died, in some of its stages, at the time he examined him on November 2, 1932.

The evidence on behalf of appellant consisted of the testimony of John E. Neal, secretary and medical director of appellant, and as such he passed upon the application of insured and accepted it, relying upon the statements therein contained as to the matters set up in appellant’s additional pleas, and which had to do with insured’s answers that he had not consulted a physician for 10 years, that he did not have nor had had any of the several diseases inquired about and that he was in good health.

Dr. Shultz also testified on behalf of appellant to the effect that in the latter part of April, 1926, he treated the insured for a corneal ulcer on the right eye and continued to treat him for three months thereafter, that he examined him for glasses in September, 1929, and found a recurrence of the corneal ulcer in April, 1930, and from September, 1929, to July 28, 1930, he treated him 24 times. Dr. Murphy testified that he was called to attend the insured a few hours before he died and corroborated Dr. Bowen as to the cause of his death. He also testified as to his autopsy findings and gave it as his opinion that the tumor which caused his death was more than two months in forming, that the insured might have been in good health as far as he or anyone could have known; that if he had headaches they might have been the result of this tumor, but the convulsion he had just before he died was the only symptom thereof which he had.

The policy declared upon provided that it and the application therefor constituted the entire contract of the parties and that' statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and it recites that it was issued to the insured in consideration of the application therefor, a copy of which was attached to and made a part thereof, and of the payment in advance of $136.20, being the premium for term insurance terminating November 10, 1933. The policy further recites that the company has caused the policy to be executed this 10th day of November, 1932, that it is effective as of that date and the policy years are computed from that time. The instalment benefit provision recites that in accordance with the written request of the insured,’ dated November 8, 1932, the pro-coeds of the policy payable as a death benefit will be paid in monthly instalments in lieu of a lump. sum. This instalment benefit provision is dated November 22, 1932. The application signed by the insured is dated November 2, 1932, and contains such questions as are usually found in similar applications and provides: “I, the undersigned applicant, hereby agree, in behalf of myself and of any person who may have or claim any interest in any policy issued hereon as follows: . . . That the insurance hereby applied for shall not take effect unless and until the first premium is paid and the policy is delivered to and received by me all during my lifetime and good health. ’ ’

It is insisted by counsel for appellant that the trial court erred in overruling the demurrer to the declaration, erred in denying its motion to carry the demurrer to the special pleas back to the declaration, erred in sustaining appellee’s demurrer to the special pleas, erred in overruling appellant’s demurrer to appellee’s replication to the third special plea, erred in the admission and rejection of evidence, in giving of instructions and in denying appellant’s motion in arrest of judgment.

• In support of its contention that the declaration was defective and that its demurrer thereto should have been sustained, counsel insist that the foregoing provision in the application constituted a condition precedent and therefore appellee should have alleged in her declaration that the first premium was paid and the policy delivered by appellant and received by insured in his lifetime and while he was in good health.

Appellant’s first pleading was a demurrer to the declaration, a hearing was had thereon and the demurrer overruled. Appellant did not abide by its demurrer, but filed the general issue. By so doing, appellant admitted the sufficiency of the allegations of the declaration, waived the benefit of its demurrer and estopped itself'from questioning its sufficiency except to insist by a motion in arrest of judgment that the declaration was so defective that it would not sustain a judgment. In People v. American Life Ins. Co., 267 Ill. 504, at page 507, it is said: ‘ The contention of the appellant that the court erred in overruling its general and special demurrers to the declaration cannot receive consideration here. The subsequent filing of its pleas constituted a waiver of that contention under the repeated decisions of this and other courts of last resort. Walker v. Welch, 14 Ill. 277; Pittsburgh, C., C. & St. L. Ry. Co. v. Robson, 204 id. 254.”

It is the general rule, however, that a demurrer should be carried back to the first defective pleading, but under our established system of pleading, a demurrer to pleas cannot be carried back to the declaration when a plea of the general issue remains in the record. Brawner v. Lomax, 23 Ill. 496; Wear v. Jacksonville & Savannah R. Co., 24 Ill. 593; Schofield v. Settley, 31 Ill. 515; Culver v. Third Nat. Bank of Chicago, 64 Ill. 528; Supreme Lodge K. of P. v. McLennan, 171 Ill. 417; Heimberger v. Elliot Frog & Switch Co., 245 Ill. 448.

In Brawner v. Lomax, supra, the court said: “Upon the other point, that the demurrer to defendant’s fourth special plea should have been carried back to the declaration, on the presumption the narr. was defective, we have to say, the record would present a strange appearance, if, after a demurrer to the declaration has. been overruled and the general issue pleaded, a demurrer to a defective plea should be carried back to the declaration. The general issue disposes of the demurrer, and of matters to be reached by it, in every subsequent stage of the proceedings. . . . The record would not look well with a general demurrer to a declaration overruled and then carried back over the general issue, when filed to a defective special plea.” This ruling has been adhered to and followed by our courts from this early case, and no error was committed in denying appellant’s motion to carry the demurrer to the special pleas back to the declaration.

It is next insisted that the court erred in sustaining a demurrer to the first, fourth and fifth special pleas in each of which it was averred that the application for the policy declared upon provided that the insurance should not take effect until the first premium was paid and the policy delivered and received by insured during his lifetime and while he was in good health. In each plea it was then averred that the insured was not in good health on the day the policy was delivered and received by him, but he was then afflicted with a fatal disease known as tumor on the brain. If the allegations of these pleas are sufficient then all appellant would have been required to prove in order to defeat a recovery under this policy would have been to establish that the insured was not in good health the day the policy was delivered to him by the company.

In Hungate v. New York Life Ins. Co., 267 Ill. App. 257 (certiorari denied by the Supreme Court), it appeared that on July 31, 1930, the insured made an application for an insurance policy and paid a portion of the premium, and she was examined by the company’s medical examiner. The application was approved and on August 5, 1930, the policy was issued and sent to the company’s agent for delivery. On August 13th, the agent collected the balance of the premium and delivered the policy. The policy contained a provision that the insurance should not take effect unless and until the policy is delivered to and received by the applicant and the first premium paid thereon in full during her lifetime and then only if the insured had not consulted or been treated by any physician since her medical examination. It also contained a clause that the policy took effect as of March 30,■ 1930. The in-. sured died October 2, 1930, and the company denied liability, inasmuch as the evidence disclosed that the insured had consulted a physician on August 12, 1930, the day before the policy was delivered. In denying., the contentions of the company, the court in its opinion said: “It has been held that if any length of time elapses between the making of the application and the issuing of the policy, it is the duty of the insurer to make inquiry when the policy is delivered as to the condition of the health of the insured, and if it fails to do so the delivery is conclusive against the insurer as to the completion of the contract. American Trust Co. v. Life Ins. Co. of Virginia, 173 N. C. 558, 92 S. E. 706; Grier v. Mutual Life Ins. Co., 132 N. C. 542, 44 S. E. 28; National Life Ins. Co. v. Grady, 185 N. C. 348, 117 S. E. 289. The contracts in those cases contained provisions that they should not take effect until the first premium was paid, nor unless on the date of payment thereof the insured was alive and in sound health.

“In the case at bar appellee construed the provision in the application to mean that before the actual delivery of the policy it should make inquiry as to whether the applicant had consulted a physician since her medical examination and if it was found that she had done so, the delivery of the policy would be withheld. This is apparent from the fact that when appellee sent the policy to the agent for delivery he was instructed that he should not deliver it if the applicant had consulted a physician since her medical examination, and if she had he should return the policy to appellee. The agent had been in the employ of appellee for six years and he says he lmew the terms of the application and the policy. Before he delivered the policy he saw the applicant and her husband but did ■ not ask either of them about her health or whether she had consulted a physician. Under the cases above. cited it was the duty of appellee to make inquiry, and having failed to do so the delivery should be held conclusive against appellee as to the completion of the contract. The agent further said that as far as he knew at that time, the delivery of the policy closed the transaction. If that was his conclusion after six years ’ experience as agent for appellee why should the applicant, a woman without experience in such matters, be expected to know that it was her duty to inform the agent, without being interrogated, that she had consulted a physician? There is no language in the application or the policy that says she should do so.

“Appellee contends that the provision in the application created a condition precedent and that appellant cannot recover because the applicant consulted a physician. Weber v. Prudential Ins. Co., 284 Ill. 326; Ellis v. State Mut. Life Assur. Co., 206 Ill. App. 226; Hartsock v. Kaskaskia Livestock Ins. Co., 223 Ill. App. 433, were cited in support of that contention. In all of those cases the applicants died before the policies were actually delivered and for that reason are not applicable to the situation here presented. There are other Appellate Court cases which take the same view even though the policies were delivered but they are based upon the cases last above cited. To so construe the provision in question would render it very unreasonable. The mere fact that an applicant consulted a physician about the most trivial ailment would be sufficient to prevent the policy from going into effect unless the insurer was advised of the fact. The applicant might pay the premium for several years thinking she had insurance but when she died the beneficiary would find that the contract never became effective. Even an incontestable clause would not apply if a policy never became a valid and binding contract. Such a construction would be abhorrent to reason and justice.

“Insurance contracts frequently provide that the policy shall not be in effect unless when delivered the insured is in sound health. Such a provision has been held to merely mean that the applicant has not contracted a disease between the date of the application and the issuance of the policy; Johnson v. Royal Neighbors of America, 253 Ill. 570; Western & Southern Life Ins. Co. v. Davis, 141 Ky. 358, 132 S. W. 410; Modern Woodmen of America v. Atkinson, 153 Ky. 527, 155 S. W. 1135; Chinery v. Metropolitan Life Ins. Co., 182 N. Y. S. 555. Under that rule of law the provision in question in the case at bar can very well be construed to merely mean that the applicant has not consulted a physician in regard to a disease contracted since the making of her application and before the delivery of the policy. The application was made July 31, 1930, the physician was consulted August 12 and the policy was delivered on the following day. When the physician was consulted on August 12, he found the applicant had a well developed tumor which later turned out to be an ovarian cancer and her death resulted therefrom. There is no evidence that her ailment was .contracted after the making of the application and before the delivery of the policy. It is a fair and reasonable inference from the evidence that the disease for which she consulted the physician existed prior to the making of the application for insurance. That being true, the provision in the application was not violated under the cases last above cited and it presents no defense to the action. Appellee makes no claim that the same facts constitute a defense under any other provision of the contract nor does it intimate that the applicant was guilty of any fraud or false representations.”

In James v. National Life & Accident Ins. Co., 265 Ill. App. 436, the policy contained a provision to the effect that im, obligation was assumed by the company prior to the date of the policy, nor unless on said date the insured was alive and in sound health and it was insisted that this was a condition precedent and inasmuch as the beneficiary failed to prove that the insured was in sound health when the policy was delivered, the judgment obtained by the beneficiary could not be sustained. In its opinion the court said: “In the case at bar the application for insurance was signed on September 12, 1927, and appellant’s medical examiner found and reported that the applicant was a first class risk. The policy was issued October 3, 1927, and delivered at a later date without making inquiry as to the condition of the health of the insured. We think that in such cases the correct rule of law is that if any length of time elapses between the making of the application and the issuing of the policy, it is the duty of the insurer to make inquiry when the policy is delivered as to the condition of the health of the insured, and if it fails to do so, the delivery is conclusive against the insurer as to the completion of the contract. (Citing cases.) We followed those cases in Hungate v. New York Life Ins. Co., in an opinion filed at the present term of this court. It has been held that such a provision as the one in question merely means that the applicant has not contracted a disease between the date of the application and the issuance of the policy. (Citing cases.) The provision does not apply to the condition that existed prior to and at the time of the making of the application. . , . Appellant offered no evidence tending to prove that the insured contracted the disease which caused her death since the making of the application and before the issuance of the policy. On the contrary, it relies upon a statement in the death certificate that the insured had the disease for two years prior to her death,”

In the instant case these-pleas to which demurrers were sustained did not allege that there had been any material change in the health of the insured after the date of the' application nor was it alleged that the insured contracted the disease which caused his death since the making of the application. All that the pleas allege is that the insured at the time the policy was delivered and received by him was afflicted with a fatal disease and under the foregoing authorities these pleas were insufficient and the court did not err in sustaining demurrers thereto.

It is next insisted that the court er.red in sustaining the demurrer to the additional pleas which set up certain statements made by him in his application to the effect that he was in good health at the time the application was made and that he did not have then, nor had he ever had any disease of the brain, nervous system, eyes, heart, etc. The policy declared upon provided that these statements made by the insured in his application, in the absence of fraud, should be deemed representations, and being representations in order for appellant to avail itself of the defense sought to be interposed, it was necessary for it to aver and prove not only that these representations were untrue when the application was made, but that the insured knew at the time that these representations were false. Aetna Life Ins. Co. v. King, 84 Ill. App. 171; Continental Life Ins. Co. v. Rogers, 119 Ill. 474; Joseph v. New York Life Ins. Co., 219 Ill. App. 452. There was no error in sustaining the demurrer to the additional pleas.

It is next insisted that the court erroneously overruled appellant’s demurrer to appellee’s replication to the third plea. The declaration alleged that appellant for a good and valuable consideration issued the policy on November 10, 1932, and thereafter made, executed and delivered it to insured. Appellant plead that the contract provided that the insurance applied for should not take effect until the first premium was paid during the lifetime of the insured and while he was in good health and averred that the premium was not paid prior to the death of the insured. Appellee replied that the appellant unconditionally delivered said policy of insurance to the insured on November 14, 1932, and thereby waived the payment of the first premium.

The demurrer to this replication admitted that the policy was unconditionally delivered to the insured on November 14,1932, and under the authorities the placing of a completed contract of insurance in the hands of an- agent for delivery, without condition, completes the contract. 25 Cyc. 718; Massachusetts Benefit Life Ass’n v. Sibley, 158 Ill. 411; and a completed contract of insurance cannot be 'avoided by proving that the premium acknowledged in the policy to have been paid was not, in fact, paid. Teutonia Life Ins. Co. v. Anderson, 77 IIl. 384; Illinois Cent. Ins. Co. v. Wolf, 37 Ill. 354; Provident Life Ins. Co. v. Fennell, 49 Ill. 180. In People v. Commercial Life Ins. Co., 247 Ill. 92, it was said: “An unconditional delivery of the'policy,■ however,, operates as a waiver of the pre-payment of the premium, notwithstanding an express provision therein that the company shall not be liable until the premium is actually paid.” See also Gosch v. State Mut. Fire Ins. Ass’n, 44 Ill. App. 263; Electric Life Ins. Co. v. Fahrenkrug, 68 Ill. 463; Devine v. Federal Life Ins. Co., 157 Ill. App. 254; Daft v. Drew, 40 Ill. App. 266; Concordia Fire Ins. Co. v. Bowen, 121 Ill. App. 35; Briggs v. Bankers Accident Ins. Co., 214 Ill. App. 181. There was no error in overruling appellant’s demurrer to this replication.

Upon the trial appellant offered to prove by Mr. Seas that no money was paid to him by the insured or anyone else during his lifetime, as recited in the premium receipt, but that a relative of Mr. Crawford’s, on November 28, 1932, paid him the amount thereof, which he accepted, but within' two hours thereafter lie made an unsuccessful attempt to return it, and that the amount was later paid by appellant to the clerk of the court for the benefit of the party entitled thereto, appellant waiving title to the same. To this offer an objection was made and sustained, and this ruling is also assigned as error. Under the authorities, if the premium on an insurance policy is in fact not paid, the acknowledgment of payment in the policy so fair as it is a receipt for money is only prima facie evidence of that fact, and in a proper proceeding for the recovery of the premium a recovery may be had, but so far as the acknowledgment is contractual, it cannot be contradicted so as to invalidate the contract. Grier v. Mutual Life Ins. Co., 132 N. C. 542, 44 S. E. 28. Where a contract of insurance recites an acknowledgment of the payment of the premium, the same cannot be contradicted by parol for the reason that the effect would be to change the terms of the contract and in effect destroy the legal purport of the contract, and on the grounds of public policy such evidence as was offered here will not be heard for the purpose of nullifying this policy. Helbig v. Citizens Ins. Co., 120 Ill. App. 58; Teutonia Life Ins. Co. v. Anderson, supra; Provident Ufe Ins. Co. v. Fennell, supra; and Illinois Cent. Ins. Co. v. Wolf, supra.

In the instant case the policy provided that after it had been in force during the lifetime of the insured for two years from its date of issue, it shall be incontestable, except for nonpayment of premium. It also recited that it was executed by appellant on November 10, 1932, and that the effective date was November 10, 1932. Notwithstanding these provisions, which are a part of the contract, and notwithstanding appellant, by its failure to file a verified plea, must be held to admit the execution and delivery of the policy sued on (Firemen’s Ins. Co. v. Barnsch, 161 Ill. 629; Helbig v. Citizens Ins. Co., supra), still it insists that the provision in the application to the effect that the insurance applied for shall not take effect unless and until the first premium is paid and the policy delivered to and received by the insured during his lifetime and while he was in good health is a condition precedent and inasmuch as the declaration failed to allege that the insured received the policy while in good health, it is insufficient to support a judgment and appellant’s motion in arrest should have been granted. The declaration averred and the proofs disclosed that appellant issued its policy containing the provision that it was'to take effect as of November 10, 1932, and delivered it to the insured. Such being the case, appellant should not now be heard to say that the policy was never in effect. If the policy never took effect, how could it become incontestable? “The idea that a contract not in existence should become incontestable is elusive.” Salts v. Prudential Ins. Co., 140 Mo. App. 142, 120 S. W. 714. When appellant issued this policy it had received evidence satisfactory to it that the insured was in good health. If it had not been so convinced it would not have executed its policy and sent it to its agent for delivery. “A condition precedent is one that is to be performed before the agreement becomes effective. It calls for the happening of some event or the performance of some act, after the terms of the contract have been agreed on, before the contract shall be binding on the parties.” Mumaw v. Western & Southern Life Ins. Co., 97 Ohio St. 1, 119 N. E. 132. We agree with the language used in the case of Middleton v. North America Protective Ass’n, 260 Ill. App. 288, where on page 290, it is said: “If a policy, containing such a provision, is delivered and all payments are made by the insured for 40 years, and a suit is then brought by the beneficiary, it seems to us it would be highly unjust to hold that before he can recover he must aver and prove that insured was in good health when the p’olicy was delivered. It might very well be that the insured was not in good health at the time of the delivery, yet if he lived for 40 years and made all payments, his beneficiary would not be entitled to recover under appellee’s contention, because it could not be proven that he was in good health when the policy was delivered. In the case at bar, the certificate was delivered, and all payments made for almost three years before the death of the insured. In our opinion, in such a case, the true rule based upon reason and justice must be that the provision in question does not create a condition precedent, but is a matter of defense that must be pleaded and proven. (Fairfield v. Union Life Ins. Co., 196 Ill. App. 7; Haemer v. Globe Mut. Life Ins. Co., 243 Ill. App. 109; Grier v. Mutual Life Ins. Co., 132 N. C. 542, 44 S. E. 28.) . . . In the absence of a plea and proof to the contrary, we think it should be assumed that the insured was in good health at the time the certificate was delivered.”

We do not believe the cases relied upon by appellant state a different rule. It was not therefore incumbent upon appellee to allege or prove, in the first instance, the truth of the answers made by the insured in his application as to his state of health, and we are clearly of the opinion that the declaration properly stated a cause of action, is sufficient to sustain a judgment and that the trial court did not err in denying appellant’s motions for an instructed verdict or in arrest of judgment.

Appellant tendered four instructions which were given and which told the jury that if they believed from the evidence that the insured was not in good health at the time the policy was delivered, they should find for the defendant. These instructions were as favorable to appellant as the law justified. By returning the verdict it did, the jury found that the insured was in good health at the time the policy was delivered. There was evidence to sustain this finding and we are not disposed to interfere therewith.

This record, in our opinion, is free from reversible error and the judgment of the circuit court of Ogle county is therefore affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Wolfe

text:
    Grace C. Paulsen, Administratrix of the Estate of William Paulsen, Deceased, Appellee, v. Natalie Cochfield, Appellant.
    Gen. No. 8,847.

      Opinion filed January 10, 1935.
    Rehearing denied February 11, 1935.

      Kenworthy, Shallberg & Harper, of Moline, and Elmore H. Stafford, of Rock Island, for appellant.
    Marshall & Marshall, of Rock Island, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

On November 20, 1930, the plaintiff as administratrix of the estate of William Paulsen, her late husband, secured a verdict against the defendant for $9,000, in an action wherein the declaration charges that the decedent was killed as a result of the negligence of the driver of the defendant’s automobile in which the decedent was riding as a passenger. A motion for a new trial was made on December 15, 1930, but owing to the illness and subsequent death of the Honorable C. J. Searle, the judge who presided at the trial, the motion was not disposed of until December 30, 1933, when the Honorable Leonard E. Telleen, circuit judge, overruled the motion. Thereupon the defendant made a motion in arrest of the judgment, which was overruled, and judgment was rendered on the verdict. The case appears here on appeal by the defendant to the October Term, 1934, of this court.

Eight assignments of error are urged by the defendant. It is first contended that the court erred in overruling her motion for a directed verdict in her favor made at the close of all' the evidence in the case. This contention is based on the defendant’s insistence that the plaintiff has not proved that the automobile was being driven by the agent of the defendant as alleged in the declaration,- at the time of the accident. This was one of the material allegations of the declaration, denied by appropriate pleas, and the burden was on the plaintiff to prove the alleged fact by legal evidence. It must appear- from all the evidence in the case that the said- allegation has been established by competent evidence. In a jury trial, the motion to direct a verdict raises only a question of law respecting the legal sufficiency of the evidence to sustain a verdict against the party making the motion. In the event of an adverse ruling on the motion to direct a verdict, an exception preserves the question of law for the consideration of an appellate tribunal. The submission of a question of fact to the jury does not waive the question of law already passed upon by the court where the rights of the party have been properly preserved. John Deere Plow Co. v. Carmer, 350 Ill. 104. Neither the trial court nor the court of review weighs the evidence on motion for a directed verdict. Post v. Hightower, 262 Ill. App. 368; Nelson v. Stutz Chicago Factory Branch, 341 Ill. 387.

Although the evidence at the close of the plaintiff’s case, including all reasonable inferences from it favorable to the plaintiff, does not justify an instruction for a verdict in favor of the defendant, still, if the defendant introduces uncontradicted evidence of facts, consistent with every fact which the evidence of the plaintiff tends to prove, but showing affirmatively a complete defense, the motion for a directed verdict made at the close of all of the evidence in the case should be allowed. Nelson v. Stutz Chicago Factory Branch, supra. In this case the question of law on the motion is: Did the defendant introduce uncontradicted evidence showing a complete affirmative defense as stated in the rule above announced! The burden of proof was not shifted to the defendant to prove that the driver of the automobile was not her agent at the time of the accident.

It is conceded by the defendant that William Paul-sen was killed as a result of a collision of the defendant’s automobile while he was riding therein. There is evidence in the record tending to prove that the driver of the defendant’s automobile was guilty of negligence as charged in the. declaration which was the proximate cause of the decedent’s death. The defendant does not urge that the motion to direct a verdict in her favor was erroneously overruled on the ground that there is no such evidence in the record. However, it is not amiss to state that the deceased, on January 21, 1930, was riding in the defendant’s automobile which was being driven on the Lincoln Highway toward the east when the collision occurred about six miles west of Geneva, Illinois, at about 3:30 o’clock in the afternoon. The car was occupied by the defendantj her brother, C. W. Laubscher, and the decedent. The occupants of the car had left Bock Island during the morning of that day and they had been riding in the car on the Lincoln Highway from Morrison, Illinois, to the place of the collision. Whether the car was being driven by the agent of the defendant is a matter of serious dispute between the parties to the action, as is above stated. The highway was paved and it was covered with smooth ice which was very slippery. It is not contended that the driver of the automobile did not control and drive the car with due care during the trip except shortly before the accident. The collision occurred near the top of a hill. As the car was being driven up the hill, the driver thereof attempted to pass a farm wagon which was being pulled up the hill by a team of horses driven by one Wilbur Mangerson. The wagon was on the south side of the highway well over to the right side of the road. A Chevrolet automobile driven toward the west appeared over the brow of the hill just after the driver of the defendant’s car turned that car toward the north to pass or avoid striking the wagon. The evidence tends to prove that the endeavors of the driver of the defendant’s car to prevent a collision with the Chevrolet car caused the defendant’s car to skid against the wagon and then to collide with the Chevrolet car. The impact of the automobiles threw the decedent out of the defendant’s car and upon the highway. The Chevrolet immediately caught fire and the decedent was fatally burned by the gasoline which became ignited as a result of the collision.

The declaration consists of six counts, all of which except -the third allege that the car of the defendant at the time of the collision was being driven by the agent of the defendant. The third count alleges that the car was then being driven by the defendant. The plaintiff, as part of her case in chief, did not introduce testimony that the defendant was driving the car when the accident occurred. No witness testified that the defendant was then driving the car. The case was tried and it is now submitted to this court on the theory that the car was being driven at the time of the accident by the agent of the defendant. On the matter of the proof that the driver of the defendant’s car was the agent of the defendant, the plaintiff introduced no evidence, either in chief or on rebuttal, proving such agency, excepting the facts that the defendant was the owner of the car and present therein when the accident happened. As proving that the driver was the agent of the defendant, the plaintiff relies on her uncontradicted and undisputed proof that the defendant was the owner of the car and present therein when the accident occurred.

The plaintiff cites the cases holding that the proof of ownership of an automobile raises a presumption that the automobile when driven is controlled and driven by the agent of the owner of the car. Included in these citations are the cases of Howard v. Amerson, 236 Ill. App. 587; and Kavale v. Morton Salt Co., 242 Ill. App. 205, affirmed 329 Ill. 445. The defendant cites cases from foreign jurisdiction at variance with the rule laid down in the case relied upon by the plaintiff. The authorities are also in' conflict on the question whether mere ownership of the car and its operation by the owner’s servant show a prima facie case of liability of the owner for damages following an accident caused by negligent operation, without proof that the operation was in the master’s business and within the scope of the servant’s authority. Nelson v. Stutz Chicago Factory Branch, 341 Ill. 387. In the case of Howard v. Amerson, supra, it is held that proof by the plaintiff that the defendant is the owner of the automobile which caused the injury sued for, while in the hands of another, made out a prima facie case that the driver is the servant of the defendant and acting within the scope of his employment at the time and places the burden of proving the contrary on the defendant. However, it does not follow that if a prima facie case is made by the plaintiff and the defendant introduces evidence counter to the prima facie case, that the cause must necessarily be submitted to the jury and that the motion to direct a verdict at the close of all the evidence does not present a question of law. Nelson v. Stutz Chicago Factory Branch, supra. We adhere to the rule laid down in Howard v. Amerson, 236 Ill. App. 587, that proof of the ownership of the car raises a presumption that the person operating the car is the agent of the owner and acting within the scope of his agency. The consequences of the presumption, or inference (and in this State there is no difference in the meaning of the two terms used as here — Ohio Building Safety Vault Co. v. Industrial Board, 277 Ill. 96) was to make out a prima facie case for the plaintiff. As is well said by the Editor of the Sixteenth Edition of Greenleaf on Evidence, Vol. 1, p. 102, quoting from Thayer’s Preliminary Treatise on Evidence: ‘ ‘ The essential character and operation of presumptions, so far as the law of evidence is concerned, is in all cases the same, whether they be called by one name or the other; that is to say, they throw upon the party against whom they work the duty of going forward with the evidence; and this operation is. all their effect, regarded merely in their character as presumptions.” After a prima facie case was made for the plaintiff, the defendant could take the risk of submitting the case to the jury without showing an affirmative defense, or introducing evidence showing a complete affirmative defense. Such affirmative defenses have been made concerning automobile accident cases where the question of the agency .of the driver is involved. Nelson v. Stutz Chicago Factory Branch, supra; Trust v. Chicago Motor Club, 276 Ill. App. 289; Rupp v. Walgreen Co., 270 Ill. App. 346; United Breweries Co. v. Bass, 121 Ill. App. 299.

A presumption does not shift the burden of proof onto the defendant, although its effect is to make out a prima facie case for the plaintiff. Stephens v. Hoffman, 275 Ill. 497; Morrison v. Flowers, 308 Ill. 189. The affirmative defehse of the defendant involved a negative; that is, proof that the driver of the car at the time of the accident was not her agent. The de-fendant was compelled by rule of law to go forward with evidence or suffer the result of a prima facie case made against her by the plaintiff.

The motion made by the defendant at the close ■ of the plaintiff’s case in chief was overruled by the court. The defendant thereupon introduced evidence to contradict and explain the prima facie case made by the plaintiff’s proof, which counter evidence shows an uncontradicted and complete affirmative defense. Rebuttal evidence was introduced by the plaintiff. All this evidence will now be considered.

The trial court held that the plaintiff appearing as the personal representative of the decedent and the defendant defending against the .representative were both disqualified as witnesses. C. W. Laubscher testified substantially as follows: That he is a brother of the defendant, and that he resided in Waterloo, IoAva, on January 21, 1930; that the defendant lived in Rock Island; that he did not live with her; that he had never been employed by her nor worked for her; that he came to Rock Island to visit his sister and was there on Saturday and Sunday preceding the accident; that he was on his way to Chicago; that on Saturday night, accompanied by his sister, he drove his sister’s automobile to the down town district of Rock Island, parked the car, and went shopping with the defendant; that when they returned to the ear the decedent (Paulsen) was by the car waiting; that Paulsen asked the witness what he was doing in Rock Island and he replied that he was on his way to Chicago ; that Paulsen then inquired if he was driving and witness replied that he left his car at Waterloo and that he was taking the train on account of the bad condition of the roads. Paulsen stated that he had business in Chicago and that he had to be there by Tuesday morning and that he must go on Monday. He told the witness that the road conditions in Illinois were not like those in Iowa and if Laubscher would borrow his sister’s car they could drive together to Chicago on Monday. Laubscher replied that he would think the matter over. On Sunday afternoon Paulsen came to the home of the defendant and he and Laubscher had another conversation about the proposed trip. Paul-sen inquired if Laubscher had made up his mind to drive to Chicago on Monday. Laubscher stated that because of his not feeling well and on account of road conditions, he did not consider it advisable to drive to Chicago. Paulsen told witness that he would assure the condition of the road.

Laubscher further testified as follows: Between nine and ten o ’clock on Monday morning Paulsen came to the home of the defendant; that Paulsen had, either on Saturday or Sunday, requested the defendant to let Laubscher and Paulsen have her car to drive to Chicago, and the defendant had stated that she had no objection to them using the car; that Laubscher told Paulsen on Monday morning that owing to the cold weather and the road conditions he had decided to go to Chicago on the train; that Paulsen stated that he had been informed by a traveling man that there was a good track and the road between Bock Island and Chicago was all right; that Laubscher and Paulsen asked the defendant to go with them as far as Elgin, where she could visit some of her relatives and they would call for her on their return trip; that the defendant went upstairs to prepare for the trip and Paulsen drove her car out of the garage and waited in the car on the street for Laubscher and the defendant.-

Laubscher testified further, that, when he and the defendant came to the car, Paulsen moved over from under the wheel of the car and Laubscher started driving; that Laubscher did not know the way from Bock Island to the Lincoln Highway and Paulsen directed the way through Bock Island to Morrison, which is on the Lincoln Highway; that they left Bock Island a little before ten o’clock and arrived in Sterling about noon, where they had dinner at a restaurant ; that Paulsen paid for the dinners; that they bought gasoline for the car twice before arriving at the place of the accident, once at a farmhouse and again at a filling station; that Paulsen paid for the gasoline bought at the farmhouse and Laubscher paid for the gasoline purchased at the filling station; that the road was very slick, a glare of ice and very little snow, with no ruts; that a short time before the accident, Paulsen complained about his feet being cold and he exchanged seats with the defendant who had been riding in the rear seat; that Paulsen requested Laubscher to drive faster and explained that he expected to meet some parties in Chicago and he would like to be there by seven o’clock; that Laubscher told him they were making as good speed as possible.

Laubscher testified further: That he had been in the automobile business since 1916 and that he had driven cars constantly; that on January 21, 1930, he was able to estimate approximately the speed at which he was traveling when driving the car; that he glanced occasionally at the speedometer on the car; that when Paulsen requested him to drive faster, which was about 30 minutes before the accident, the speed of the car was 20 or 25 miles an hour; that Paulsen again asked Laubscher to drive faster, but that he used his own judgment about the speed of the car; that the car was a Willys-Knight coupe sedan for carrying four persons; that he drove the car between 30 and 35 miles an hour at times, and on one occasion drove the car for a “spurt” on a level stretch of the road at 40 miles per hour.

On cross-examination Laubscher testified that he was working for the Sherbrick-Kelly Co., distributors of Willys-Overland products, and that he had been in its employ since 1915; that he was still employed by that company. He stated fully as to the business reasons why he was on his way to Chicago. His cross-examination is consistent with his testimony on direct examination.

The testimony of one uncontradicted and unimpeached witness tending to overcome a prima facie case cannot be ignored by the court or jury, unless such testimony from its nature is not credible. Stephens v. Hoffman, 275 Ill. 497. A prima facie case, based solely on an inference, or presumption, does not preclude the withdrawal of the case from the jury after all the evidence has been submitted. Nelson v. Stutz Chicago Factory Branch, 341 Ill. 387; Judson v. Bee Hive Auto Service Co., 136 Ore. 1, 294 Pac. 588, 297 Pac. 1050, 74 A. L. R. 944; Kazee v. Kansas City Life Ins. Co. (Mo. App.), 217 S. W. 339. Whether the evidence, with all legitimate and natural inferenees to be drawn therefrom, necessarily leads to a certain conclusion, is a question of law. Ferrero v. National Council of Knights and Ladies of Security, 309 Ill. 476. Ordinarily, whether an inference or presumption has been overcome is a question for the jury, but if the evidence is of such a character that but one reasonable deduction can be made therefrom, the court may so declare as a matter of law. Judson v. Bee Hive Auto Service Co., supra.

The distance from Rock Island to the place of the accident by way of Morrison is about 137 miles and we find nothing inherently incredible or improbable in the testimony of the witness Laubscher to justify us in saying that it is false. Nor is his alleged interest in the result of the trial, because of the fact that he is the brother of the defendant, of such a character or nature as to cause the rejection of his testimony. Nelson v. Shits Chicago Factory Branch, supra; United Breweries Co. v. Bass, 121 Ill. App. 299; Zeeb v. Bahnmaier, 103 Kan. 599, 176 Pac. 326, 2 A. L. R. 883. In Anderson v. Irwin, 101 Ill. 411, a Mr. Justice Mulkey states: “The law is intended to be practical in its application to the varied transactions and circumstances w.hich go to make up the affairs of life and which are constantly giving rise to legal controversies that have to be settled in courts of justice. Indeed, most of the rules of evidence have been established with direct reference to this principle. ’ ’ It has been held by our Supreme Court that where the law casts upon a party the burden of proving a negative, full and complete proof in rebuttal of presumptions is not required, but in order to remove the presumption it is necessary that proof should be produced sufficient to render the existence of the negative probable. Rexroth v. Schein, 206 Ill. 80; City of Beardstown v. City of Virginia, 76 Ill. 34; Behrensmeyer v. Kreitz, 135 Ill. 591; Prentice v. Crane, 234 Ill. 302; Vigus v. O’Bannon, 118 Ill. 334. The facts in this case pertaining to the agency of the driver of the car lie peculiarly within the knowledge of the defendant, and full and clear disclosure of such facts by the defendant should be required to establish an affirmative defense. Jones on Evidence (2d Ed.), secs. 180, 181.

The evidence of the witness Laubscher up to this stage of the trial being uncontradicted would not justify men of ordinary reason and fairness, who understood the law as herein stated, in affirming that the plaintiff had proved that Laubscher while driving the car of the defendant was acting as her agent in and about her-business. The presumption of agency arising from the proof of the defendant’s ownership of the car has spent its force as it is opposed by facts proved by the evidence. There was no longer a rule of law requiring the jury to find according to the presumption. The prima facie case of the plaintiff had been overcome by evidence. Under such circumstances a presumption is not evidence; there is no conflict in the evidence when' the presumption is contradicted by facts proved by uncontradicted and credible evidence to the presumption. Nelson v. Stutz Chicago Factory Branch, 341 Ill. 387; United Breweries Co. v. Bass, 121 Ill. App. 299; Judson v. Bee Hive Auto Service Co., 136 Ore. 1, 297 Pac. 1050, 74 A. L. R. 944; Tullis v. Blue, 216 Ala. 577, 114 So. 185; Toranto v. Hattaway, 219 Ala. 520, 122 So. 816; Graves v. Colwell, 90 Ill. 612; Brown v. Brown, 329 Ill. 198; Sielbeck v. Grothman, 248 Ill. 435; Gorden v. Gorden, 283 Ill. 182; Lohr v. Barkmann Cartage Co., 335 Ill. 335; Pennsylvania R. Co. v. Lord, 159 Md. 518, 151 Atl. 400; Zeeb v. Bahnmaier, 103 Kan. 599, 176 Pac. 326, 2 A. L. R. 883.

In rebuttal of the testimony of Laubscher, the plaintiff introduced the testimony of John Kinney. This witness testified that his business was that of hauling coal and he had been so engaged for about four years; that he knew Paulsen when he was alive and remembered the time of his death; that he also knew the defendant when he saw her; that on January 21, 1930; ■ he was at a coal bank near Silvis getting a load of coal;.that while driving his coal truck back to Bock Island when he was near Silvis he saw Paulsen in a car headed east; that the defendant was driving the car with Paulsen in the front seat of the car and a man in the rear seat; that this was between 11 and 12 o’clock; that it was a Knight car and he knew the car; that he gave just a passing glance at the car; that he could see in the car and recognized who was driving it.

While the testimony of Kinney contradicts the testimony of Laubscher that he drove the car all the way from Bock Island to Morrison, it in nowise proves or tends to prove that Laubscher at the time of the accident was not driving the car; Silvis is about 12 to 15 miles north of Bock Island. It could be said only by conjecture, if at all, from the testimony of Kinney that Laubscher was not driving the car at the time of the collision. There are no other facts in evidence from which an inference could be drawn as á matter of fact that Laubscher at the time of the collision was driving the car of the defendant as her agent.

We have considered the plaintiff’s argument that the defendant being present in the car at the time of the collision raises a presumption that the driver of the car was her agent (which we do not decide) and also that it was her duty to control the driver of the car so that he would use due care driving it. If there is such a presumption, it was overcome by the evidence. The trip at best was a perilous undertaking and the' accident happened suddenly. Zeeb v. Bahnmaier, 103 Kan. 599, 176 Pac. 326, 2 A. L. R. 883.

••• There is nó legal evidence in the record proving or tending to prove the allegation of the declaration that the car at the time of the collision which resulted in the death of the plaintiff’s intestate was then being driven by the agent of the defendant in and about her business. The case should be reversed on the ground that the trial court erred in not giving the instruction for a directed verdict as asked by the defendant at the close of all the evidence in the case.

The clerk of this court will insert in the judgment of the court the following: The court finds that there is no legal evidence in the case proving, or tending to prove by legitimate inference the material allegation of the declaration, namely, that the driver of the defendant’s automobile at the time of the collision with the other automobile (which collision resulted in the death of the plaintiff’s intestate) was driven and controlled by the agent or servant of the defendant in and about the business of the defendant.

Judgment reversed.


author: Mr. Justice Huffman

text:
    The Swords Company, Appellee, v. F. G. Hogland, Appellant.
    Gen. No. 8,866.

      Opinion filed January 10, 1935.
    Rehearing denied February 11, 1935.
    Hall & Dusher, of Rockford, for appellant.
    Q-uyer & Berry, of Rockford, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

This is an action by appellee corporation against appellant, based upon a novation contract. A trial by jury was had, resulting in a verdict in favor of appellee. This appeal is prosecuted from the judgment of the circuit court upon the verdict.

Suit was brought to recover for plumbing and heating fixtures and labor in installing same in a residence located upon premises described as 905 Ridgewood Road, Rockford, Illinois. The above lot was owned by Annette Wortham, daughter of appellant. The residence was constructed in 1926, and Annette Wortham and her husband live in the same.

Appellee was not paid for the material and labor furnished in the construction of said house. The evidence discloses that on September 1, 1928, appellee mailed its statement for the amount claimed due, as follows:

“ Monthly Statement
Swords Bros. Company
Plumbing, Heating and Mill Supplies
627-635 Seventh Street
Warehouse 2301 Eleventh Street
Rockford, Illinois
Sep. 1 — 1928
In account with Horace Wortham Jr.
905 Ridgewood Road Rockford, Illinois.
Pay last amount shown in this column
Interest Charges on Overdue
Account. Terms: Net cash 30 days
Date Items Charges Credits Balance

1928

Jan. Previous
Balance rendered 5938.53
This balance is over-due
Please remit”
On September 19, 1928, appellant mailed to appellee a memorandum, as follows:
“National Lock Co. Memo 9/19/28
Friend Tom
Please ask your Accounting Department to charge this to my personal account. It was never ordered by Annette — it was my liability from the beginning. Think I will be able to pay something — whereas Annette probably cannot for she has no income except for daily wants.
Frank”

To the above memorandum was pinned the statement from appellee to the Worthams as above set out, issued under date of September 1, 1928. Following the re-' ceipt of this memorandum and statement by appellee on September 19, 1928, appellee caused the necessary entries to be made upon its books, whereby the liability and indebtedness of Wortham and wife was extinguished, and appellant became debtor in place of the original debtors. The Wortham account was duly credited with the sum of $5,938.53, and this amount was transferred to the account of appellant and his account was debited with such amount. Following this, appellee, on September 20, 1928, mailed to appellant its letter containing the following statement:

“Sept. 20, 1928
Filing Copy
Mr. F. Gr. Hogland
c/o National Lock Co.
Rockford, Illinois
To transfer Horace Wortham Jr.
account to your account as per
your written instructions to
Mr. T. E. Swords of Sept. 19 — 1928 5938.53”

It does not appear that appellant made any complaint as to appellee’s having misunderstood the meaning of his memorandum concerning the Wortham account, and the transfer of it to his account pursuant to appellee’s above notice. He later objected to certain alleged duplications of charges made in said account. In his letter to appellee regarding such duplications, he states that the correct charge should be $5,344.08 instead of $5,938.53, and advises appellee that his secretary will explain to it the duplications. Following this, the items contained in the account were reviewed by appellee and appellant’s secretary, the errors corrected, and the account changed to correspond with the amount suggested by appellant in his letter as being the correct sum, to wit, $5,344.08.

' On April 9, 1930, appellant mailed Ms letter to appellee in wMch he stated that he was inclosing statements of his account with D. F. Swords and with Swórds Bros. Co., in which he asks that the statements be promptly checked in order that a settlement might be arrived at. In the statements of account appears the following entry: “Due Swords Bros. Co. from F. Gr. H. (meaning appellant) as per statement and invoices rendered in October, November and December, 1926 — covering plumbing fixtures, plumbing & heating fixtures, labor heating and plumbing for Wortham home at 905 Ridgewood Road.............$5344.08.”

Appellee claimed that the assumption of the liability of Wortham and wife to it by appellant, and the ex-tinguishment of the debt of the original debtors, as occurred in this case, constituted a novation. Novation is the extinguishing by mutual agreement of one obligation by another. The essentials thereof are well defined in law. There must be a previous valid obligation, wMch by agreement of the parties is extinguished by a new contract valid in law. Kiefer v. Reis, 331 Ill. 38; Walker v. Wood, 170 Ill. 463; Commercial Nat. Bank v. Kirkwood, 172 Ill. 563.

As far as the record in this case is concerned, there appears to be no uncertainty as to the premises referred to by appellant in his memorandum to appellee. It is undisputed that the debt existing against the Worthams was a valid obligation, and that the same was extinguished by appellee pursuant to the directions given it in the memorandum from appellant; also that the debt of the original debtors was charged to appellant as directed, and notice thereof mailed to appellant upon the same day his memorandum was received.

Ajppellant ■ seeks to' avoid a novation upon the grounds that the evidence failed to demonstrate that Ms daughter, Annette Wortham, and her husband, Horace, assented to same. The statement of account existing between appellee and the original debtors which had been mailed to the Worthams by appellee under date of September 1, 1928, was attached to appellant’s memorandum that he mailed to appellee. Wortham and wife deny any knowledge of the amount due appellee, that they received any monthly statements, that they ever talked to appellee about the account, and state they never inquired of appellee whether they were indebted to it. They do not deny knowledge that appellee installed the plumbing and heating in their residence. The house having been constructed for them, as their home, and they living in the same, are chargeable with knowledge of whether they had ever paid for the construction thereof, unless it was constructed by appellant as a gift to his daughter. While appellant, his daughter and her husband, deny any agreement among themselves as to the novation, yet the evidence discloses strong circumstances to the contrary. After the statement of September 1, 1928, mailed by appellee to the Worthams, and the return of it to appellee by appellant, attached to his memorandum, no further monthly statements were mailed to the Worthams. As above stated, they were chargeable with knowledge whether they had paid this account to appellee. It is further evident from the record that itemized statements of this account from appellee to the Worthams, came into the possession of appellant, because subsequent to his memorandum, and the extinguishment of the Wortham’s indebtedness by appellee and the transfer thereof to appellant, he takes up with appellee certain duplicate charges which he has discovered in the audit of the itemized accounts that had been rendered to the Worthams. He found that these duplicate charges amounted to $594.45, and in his letter to appellee states that his secretary, naming her, will explain them to appellee. He further states in his letter that the correct amount of the account should be $5,344.08 instead of $5,938.53. The evidence discloses that appellee, upon examining the itemized accounts with appellant’s secretary, found that appellant’s statements regarding the duplicate charges were correct and the account ivas corrected to the sum as above stated by appellant to be the correct sum. Knowledge and assent on the part of Mrs. Wortham and her husband that appellant should assume this indebtedness and that they should thereby be discharged therefrom, may be established by facts and circumstances appearing in evidence, and such assent may be implied therefrom. Walker v. Wood, supra, p. 467. All the facts and circumstances in this case Avere proper to be submitted to the jury for the purpose of their determining Avhether appellant’s daughter and her husband knew of the transaction between appellant and appellee and if they assented thereto.

Appellant urges lack of consideration. The consideration to support an agreement of noAmtion need not be pecuniary. The relinquishment of a right, such as the discharge of a debt, the postponement of a remedy or a forbearance, is enough. In relation to novation contracts where the promise is to pay another’s debt, in consideration of his being discharged therefrom, it seems to be well settled that there need be no consideration moving between the person promised for and the person Avho promises. In these cases the validity of the new promise, and the discharge of the original debt, are mutually dependent; they arise at the same time and result from the agreement of the parties that the existing debt shall be extinguished, and the first debtor discharged, in consideration of the new undertaking. The mutual agreement of the parties furnishes the consideration, and as between the original debtor and his creditor, the discharge of the original debt is a sufficient consideration, 20 R. C. L. 367.

Appellant also claims that the $5,344.08 for which he is now sued was a matter of private indebtedness between himself and Mr. T. E. Swords, deceased, who was one of the owners of appellee corporation. It appears from the record that appellant has filed his claim in the probate court against the estate of Mr. T. E. Swords, deceased, for the' full amount claimed due by appellant from said deceased, withoiit appellant taking into consideration the alleged indebtedness of $5,344.08 now claimed by him to have' been a private indebtedness due from him to the said deceased.

The evidence on behalf of appellee is largely documentary. Whether the evidence of appellee demonstrated the request by appellant as claimed and the consent thereto by appellee, the new agreement and the extinguishment of the old debt, and whether the same occurred with the knowledge and assent of appellant’s daughter ■ and her husband, were questions of fact to be decided by the jury. It is undisputed that this material and labor bill has not been paid. The entries on the books of appellee corporation disclose that the accounts were changed as requested by appellant. It also appears in evidence that appellant had due notice thereof, and that subsequent thereto, the account was corrected at appellant’s instance. Upon these questions of fact, this court is of the opinion that the evidence and pleadings were sufficient to support the finding of the jury that a novation by all the parties interested actually took place.

Many other questions are raised by appellant, which have been considered, but to discuss them here would extend this opinion beyond reasonable lengths.

We have discovered no errors of law intervening, and find the verdict to be supported by the evidence. The judgment of the trial court is therefore affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Hebei

text:
    First District.
    P. W. Bauman, appellee, v. C. I. T. Corporation, appellant.
    Gen. No. 36,332.
    Opinion filed December 19, 1934.
    Rehearing denied January 9, 1935.
    Short, Rothbart, Willner & Lewis, for appellant; Edward Rothbart, George H. Meyer and Dwight McKay, of counsel. Gettleman & Adelman, for appellee; Milton M. Adelman, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Terry Terrill, plaintiff in error.
    Gen. No. 37,261.
    Opinion filed December 19, 1934.
    Rehearing denied January 9, 1935.
    . .Ellis & Westbrooks, for. plaintiff in error; Richard E. Westbrooks, of counsel. Thomas J. Courtney, State's Attorney, for defendant in error; Edward E. Wilson, J. Albert Wpll, Henry E. Seyfarth and Amos P. Scruggs, Assistant State's Attorneys, of counsel. •
   Mr. Presiding Justice Hebei

delivered the ppinion of the .court..


author: Mr. Presiding Justice Hebel

text:
    The People of the State of Illinois ex rel. John S. Rusch, defendant in error, v. William Ford, plaintiff in error.
    Gen. No. 37,335.
    Opinion filed December 19, 1934.
    Charles A. Bellows and Gedrge Sullivan, for plaintiff in ’ error. -Thomas J. Courtney, State's Attorney, for defendant in error; John F. Cashen, Jr., of counsel. " ’ "
   Mr. Presiding Justice Hebel

delivered the opinion of the court.


text:
    Sara Somach, appellee, v. Green Box Company, Inc., appellant.
    Gen. No. 37,344.
    Opinion filed December 19, 1934.
    Zane, Morse, Zimmerman & Norman, for appellant; Franklin D. Trueblood, of counsel. John A. Bloomingston, for appellee; Stacy Osgood, of counsel.
   Mr. Presiding Justice Hebei

delivered the opinion of the court.


author: Mr. Justice Hall

text:
    Clarence F. Buck, receiver of Calumet National Bank of Chicago, appellee, v. Robert Honore Brown, appellant.
    Gen. No. 36,697.
    Opinion filed December 19, 1934.
    Charles T. Kramer, for appellant; Julius Grubman, of counsel. George G. King, for appellee; Frederick Sass, Jr., of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    Frank J. Kohout, receiver of Baker State Bank, and Glens Falls Indemnity Company, appellants, v. F. Frazier Jelke et al., appellees.
    Gen. No. 37,093.
    Opinion filed December 19, 1934.
    Rehearing denied January 9, 1935.
    Cassels, Potter & Bentley, for appellants; Ralph F. Potter, George C. Bunge and Ralph Horween, of counsel. Sanders, Childs, Bobb & Wescott and White & Hawxliurst, for certain appellees; Dwight S. Bobb, W. L. Bourland and Ralph R. Hawxhurst, of counsel. Dent, Weichelt & Hampton, for certain other appellees; Louis L. Dent and Seward H. Bowers, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


author: Mi-. Justice Hall

text:
    Sommer and Maca Glass Machinery Corporation et al., appellants, v. Jay M. Johnson and Johnson Fare Box Company, impleaded with Jay M. Johnson, appellees.
    Gen. No. 37,129.
    Opinion filed December 19, 1934.
    Rehearing denied January 9, 1935.
    Marshall Solberg and Kellam Foster, for appellants. Percy R. Jacobson and James M. Murray, for appellees.
   Mi-. Justice Hall

delivered the opinion of the court.


text:
    Anna Krauss, defendant in error, v. Northmore Garage and Safety Brake Service Company, plaintiff in error.
    Gen. No. 37,174.
    Opinion filed December 19, 1934.
    Theodore Johnson and Benjamin Levering, for plaintiff in error; Elmer H. Heitmann, of counsel. No appearance for defendant in error.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Anthony Buzinkis and John Demeske, plaintiffs in error.
    Gen. No. 37,198.
    Opinion filed December 19, 1934.
    W. G. Anderson, for plaintiffs in error. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, J. Albert Woll, Henry E. Seyfarth and Amos P. Scruggs, Assistant State’s Attorneys, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. William McGee, plaintiff in error.
    Gen. No. 37,265.
    Opinion filed December 19, 1934.
    Aaron H. Payne, for plaintiff in error. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, J. Albert Woll and Henry E. Seyfarth, Assistant State’s Attorneys, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


text:
    De Kalb Trust and Savings Bank et al., appellees, v. De Paul Educational Aid Society et al., appellants. De Paul University et al., defendants.
    Gen. No. 37,764.
    Opinion filed December 19, 1934.
    Chapman & Cutler, for certain appellants. Moses, Kennedy, Stein & Baehraeli, for certain other appellant; Perry M. Chadwick, Julius Moses and Ralph F. Huek, of counsel. Shulman, Shulman & Abrams, for appellees; Meyer Abrams, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.


author: Mr. Justice Wilson

text:
    Elizabeth Libman, appellee, v. Chicago Title and Trust Company et al., defendants, on appeal of Mary L. Kent and Amos W. Martin, appellants.
    Gen. No. 37,488.
    Opinion filed December 19, 1934.
    Rehearing denied January 9, 1935.
    Edward H. S. Martin, for appellants. Sabath, Perlman, Goodman & Rein, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Floyd Caldwell, plaintiff in error.
    Gen. No. 37,513.
    Opinion filed December 19, 1934.
    Eugene L. McGarry, for plaintiff in error. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, J. Albert Woll and Henry E. Seyfartli, Assistant State’s Attorneys, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Carl M. White, appellant, v. Arnold Foley, appellee.
    Gen. No. 37,543.
    Opinion filed December 19, 1934.
    Rehearing denied January 9, 1935.
    Clark & Clark, for appellant; Russell S. Clark, of counsel. L. M, Nowlan, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Etta Wolf, defendant in error, v. China Catering Company et al., plaintiffs in error.
    Gen. No. 37,573.
    Opinion filed December 19, 1934.
    Danaher & Garriott, for plaintiffs in error. Sidney J. Wolf, for defendant in error.
   Mr. Justice Wilson

delivered the opinion of the court.


author: Mr. Presiding Justice O’Connor

text:
    Nellie Ramsey, appellee, v. Dr. J. Frank Armstrong, appellant.
    Gen. No. 37,529.

      Opinion filed December 24, 1934.
    Macon H. Huggins and Denison, White & Mosely, for appellant. Robert J. Hillman, for appellee; Abraham H. Mailer, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


author: .Mr. Presiding Justice 0’Connor

text:
    Dorothy Kabat, by John Kabat, her father and next friend, appellee, v. Frank Biedronski, appellant.
    Gen. No. 37,588.
    Opinion filed December 24, 1934.
    Ryan, Sinnott & Miller, for appellant; Joseph D. Ryan and Edmund M. Sinnott,-of counsel. Charles J. Trainor and John C. Trainor, for appellee.
   .Mr. Presiding Justice 0’Connor

delivered the opinion of the court.


text:
    John Dahmke, defendant in error, v. David Ruttenberg et al., plaintiffs in error.
    Gen. No. 37,657.
    Opinion filed December 24, 1934.
    Eugene P. Kealy, McKenna, Harris & Schneider and Gallagher, Rosenberg & Richter, for certain iilaintiffs in error; James J. Mc-Kenna and Vincent G. Gallagher, of counsel. Irving Breakstone, for defendant in error.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    Catherine Schultz, plaintiff in error, v. The Live Stock National Bank of Chicago, administrator of the estate of Max Grabo, deceased, defendant in error.
    Gen. No. 37,492.
    Opinion filed December 24, 1934.
    John A. Bloomingston, for plaintiff in error. Barrett, Barrett, Costello & Barrett, for defendant in' error; Robert E. Barrett and Anthony O. Tomezak, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    Illinois Brick Company, appellee, v. Pennsylvania Railroad Company, appellant.
    Gen. No. 37,565.

      Opinion filed December 24, 1934.
    Rehearing denied January 28, 1935.
    Loesch, Scofield, Loeseh & Burke, for appellant. Marklieim & Allie, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Arthur F. Koestner, by Irene McLaughlin, his next friend, appellant, v. City of Chicago et al., appellees.
    Gen. No. 37,591.
    Opinion filed December 24, 1934.
    Robert E. Cantwell, Jr., for appellant; Martin W. Grosse, of counsel. William H. Sexton, Corporation Counsel, Casper Nathan, Assistant Corporation Counsel, Bayley, Merrick, Webster & Gregory and Shannon, Morrill & Johnson, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Central Republic Trust Company, appellee, v. Simon L. Levy, appellant.
    Gen. No. 37,621.
    Opinion filed December 24, 1934.
    Jacob Levy, for appellant; Edward McTiernan, of counsel. Fisher, Boyden, Bell, Boyd & Marshall, for appellee; Rudolph M. Mulfinger, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Michael Kunicki, appellant, v. A. J. Rassenfoss and William Kohl, trading as Lincoln Bag Company, appellees.
    Gen. No. 37,651.
    Opinion filed December 24, 1934.
    Jules Q. Kaiser, for appellant; Solomon Axelrod, of counsel. Bradley, Harper, Huss & Rehm, for appellees; Victor B. Rehni, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Justice Matehett

text:
    Jim Marino v. Morris White, consolidated with R. H. Dietz et al., appellees, v. Morris White and National Reserve Insurance Company, on appeal of National Reserve Insurance Company, appellant.
    Gen. No. 37,661.

      Opinion filed December 24, 1934.
    Silber, Isaacs, Clausen & Woley, for appellant; Donald N. Clausen and Herbert W. Hirsh, of counsel. Jacob Kosbie, for appellees.
   Mr. Justice Matehett

delivered the opinion of the court.