text:
    Maude Drouineau, Appellee, v. First National Bank of Marion, Illinois, Appellant.
    1. Negotiable instruments — title acquired by bona fide purchaser of stolen instrument. A purchaser of a negotiable instrument, acquired for value before maturity and without notice, acquires a good title notwithstanding the instrument was stolen from the true owner.

      2. Non-negotiable paper — special assessment bonds. Special assessment bonds of a city, though payable to bearer, are payable out of a special fund and are not negotiable instruments.
    3. Non-negotiable paper — title under unauthorised pledge of assessment bond. Without proof that one who puts up as collateral for a loan from a bank special city assessment bonds had authority from the owner to do so, the bank will be liable to the owner for the amount of the bonds.
    4. Negotiable instruments- — title of pledgee before maturity. Tho indorsee of" a negotiable note, who receives it before maturity as collateral in the usual course of trade, is a holder for value.
    5. Negotiable instruments- — what insufficient to charge pledgee with notice of defect in title. Under Cahill’s St. ch. 98, H 75, providing when title to a negotiable instrument is defective, and Cahill’s St. eh. 98, K 76, providing what shall be notice of such infirmity to a purchaser; proof that the bank knew that the purchaser of certain negotiable bonds paid for them with her own money will not constitute notice to them that the bonds, put up by the husband as collateral for a loan from the bank, were taken by the husband without his wife-’s consent.
    6. Negotiable instruments — liability of pledgee after notice of defect in title. Under Cahill’s St. eh. 98, 74, providing that the holder in due course of an instrument is so only to the extent of the amount paid thereon before notice of defect, a bank which loaned $1,600 on $2,000 negotiable collateral put up by a husband without the consent of his wife, the real owner, is liable to her for the $400 excess after she notifies it that she did not consent.
    7. Pledges — title of pledgee to bonds pledged without authority. The title to bonds, put up as collateral with a bank by the husband of the true owner without her consent, vests in the bank after it pays the value of the non-negotiable collateral, and the value of the negotiable collateral above what it actually loans thereon.
    Appeal by defendant from the City Court of Marion; the Hon, R. R. Fowler, Judge, presiding.
    Heard in this court at the October term, 1926.
    Reversed. Judgment reversed and judgment entered here with finding of-facts.
    Opinion filed April 15, 1927.
    William H. Warder and Hosea V. Ferrell, for appellant.
    D. L. Duty, for appellee; Ray D. Henson, of counsel.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee and her husband lived in Marion, Illinois, and the husband conducted the French Benzol Cleaning and Dyeing Company. Appellee furnished him with the money with which he engaged in that business. Appellee and her husband were customers of appellant. On December 11,1924, she purchased from appellant three bonds issued by a New York corporation and secured by a mortgage on real estate. The bonds were negotiable and payable to bearer. One of them was for $1,000, and the other two for $500 each. At the same time she also purchased from appellant three special assessment bonds issued by the City of Marion, Illinois, in the sum of $200 each, payable to bearer. ' At the time of the purchase she- and her husband had a safety deposit box at appellant’s bank and each of them had a key and had access thereto at all times. Appellee testified that the day after she purchased the bonds aforesaid she placed them in the safety deposit box.

On March 9, 1925, appellee’s husband procured a loan from appellant for $800 for which he executed his note and deposited with appellant the $1,000: bond as collateral security. On May 1, 1925, he procured another loan of $800 from appellant for which he gave his note and deposited the two $500 bonds as collateral security. On June 27, 1925, he procured a third loan from appellant for $500 and deposited the three special assessment bonds as collateral security.

In the latter part of January, 1926, he left Marion and has never been heard from. Soon after he left, appellee went to the safety deposit box and found that the bonds were gone. Upon inquiry at the bank she was informed that her husband had procured the loans aforesaid and had deposited the bonds as collateral security, and that she could have them upon payment of the notes. She declined to make payment and appellant refused to deliver the bonds. She then brought this suit in replevin and the bonds were not procured on the writ. In her declaration she inserted a count in trover and later amended that count and withdrew the count in replevin. The case was tried upon the amended count in trover and the general issue. The trial resulted in a verdict and judgment in her favor for $2,600.

Upon the trial of the case appellee called the cashier of the bank as a witness in her behalf. He testified that appellee and her husband came to the bank and expressed their desire to purchase some bonds; that the bonds were paid for by appellee; that appellant made the several loans aforesaid to appellee’s husband and that he deposited the bonds aforesaid as collateral security for the said loans. He also testified that at the several times when the loans were procured and the bonds deposited as collateral it did not occur to him that the bonds so deposited were the same bonds which the bank had previously sold to appellee; that he had no notice of any kind that appellee’s husband was not the owner of the bonds at the time he received them as collateral security on the several loans aforesaid. There is no substantial conflict in the evidence. Appellee testified that the bonds were her property and that she had never given them to her husband nor authorized him to use them as collateral security.

It is familiar law that one in possession of chattels by theft can convey no title to an innocent purchaser. Coin and bank bills are excepted from the rule. And from the highest considerations of public policy, the law also excepts from the rule negotiable instruments acquired for value in good faith before maturity and without notice. It may be taken to be the well-settled rule of law that the transfer of stolen commercial paper, negotiable by delivery, to a bona fide purchaser, for value, without notice and before maturity, vests him with a good title against all the world. The rule seems to be the same in the case of instruments that have been lost. 3 R. C. L. 1000; 8 C. J. 796; 9 C. J. 63; Jones v. Nellis, 41 Ill. 482.

That rule does not apply to instruments that are non-negotiable. 8 C. J. 797; 9 C. J. 63. The three special assessment bonds, payable to bearer, are payable out of a particular fund and are not negotiable instruments. Northern Trust Co. v. Village of Wilmette, 220 Ill. 417. Appellant did not undertake to show that appellee’s husband had authority from her to use the special assessment bonds as collateral security. In the absence of such authority appellant was not entitled to hold those bonds as against appellee.

The other bonds were negotiable, payable to bearer, and had not matured. An indorsee of a negotiable note, who receives the same before maturity as collateral, in the usual course of trade, is a holder for value. Zollman v. Jackson Trust & Savings Bank, 238 Ill. 290.

Appellee contends that her husband had no right, title or interest in the bonds and that when appellant received them as collateral security it had knowledge, actual or constructive, that the bonds were not his property but the property of appellee; in other words, that the title of her husband was defective and that appellant had notice of the infirmity. Section 55 of the Negotiable Instruments Act, Cahill’s St. ch. 98, ¶ 75, provides that the title of a person who negotiates an instrument is defective within the meaning of the act when he obtained the instrument, or any signature thereto, by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith or under such circumstances as amount to a fraud.

Section 56 of the same Act, Cahill’s St. ch. 98, ¶ 76, says that to constitute notice of infirmity in the instrument, or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith. Appellee’s contention that appellant had notice that the bonds were her property at the time they were deposited as collateral security is based solely upon the fact that she purchased the bonds from appellant’s cashier on December 11, 1924, and paid her own money therefor. In a similar case, where evidence of the same character was relied upon as proving notice, the court said: “The fact that respondents knew that the bonds had been purchased by Mrs. Kunze as her separate property does not prove that they acted in bad faith. They had a right to presume that George W. Kunze had personally acquired the bonds or that they were given to him by his wife to be used for the purpose of security.” Brokaw v. Kunze, 127 Wash. 593, 221 Pac. 590. In Texas Banking & Insurance Co. v. Turnley, 61 Tex. 365, the court applied the doctrine in question to a railroad bond owned by a wife whose husband, without her knowledge, took it and pledged it as collateral security for his individual indebtedness contracted at the time.

Under the law and the evidence appellant is not entitled to hold the special assessment bonds as security for the $500 loan. The evidence shows that those bonds were the property of appellee. As to the other bonds, appellant is a bona fide holder in due course and without notice of any infirmity or defect in the title of appellee’s husband at the time he deposited the same as collateral. Those bonds amount to $2,000, and the loans for which they were pledged amount to $1,600. Section 54 of the Negotiable Instruments Act, Cahill’s St. ch. 98, ¶ 74, provides that where the transferee receives notice of any infirmity in the instrument or defect in the title of the person negotiating the same before he had paid the full amount agreed to be paid therefor, he will be deemed a holder in due course only to the extent of the amount theretofore paid by him. Under that section, when appellant learned that the title of appellee’s husband was defective it had paid out $1,600. When it received that information it ceased to be a bona fide holder in due course for any other sum.

Under the law and the undisputed facts appellee was entitled to recover but $1,000. The judgment for $2,600 is reversed and the clerk of this court will enter judgment here in favor of appellee and against appellant for the sum of $1,000. Each party will pay one-half of the costs in the trial court and in this court. Upon payment of the judgment the title to all of the bonds will vest in appellant by operation of law.

Judgment reversed and judgment entered here with finding of facts.

The clerk will incorporate in the judgment the following : The court finds that appellant was a holder in due course of the negotiable bonds and without notice of any defect in the title thereto to the extent of $1,600.


source: Caselaw Access Project

author: Mr. Presiding Justice Barry

license: Public Domain

text:
    W. W. Kimmel, Appellee, v. Board of Education Marion School District No. 52, Appellant.
    1. Schools and education — construction of contract with school principal. A contract of a school board hiring a school principal must be construed with regard to surrounding circumstances, and the requirement of attending summer school placed therein must be construed in such ease to mean attendance at a summer school for training school teachers, and attendance at a business college is not a compliance therewith.
    2. Schools and education — legality of hoard’s vote on adoption of contract with school principal. Under Cahill’s St. ch. 122, j[ 137, providing that a board of education shall have all the powers of school directors and be subject to their limitations, and Cahill’s St. eh. 122, 1f 120, providing that the yeas and nays on all money expenditures must be entered on the record, a contract of employment of a school superintendent passed by secret ballot without the yeas and nays being entered of record does not bind the board.

      Appeal by defendant from the Circuit Court of Williamson county; the Hon. D. T. Hartwell, Judge, presiding.
    Heard in this court at the October term, 1926.
    Reversed with finding of facts.
    Opinion filed April 15, 1927.
    Geo. B. White and Hosea V. Ferrell, for appellant.
    D. L. Duty, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

For the school year 1922-1923, appellee was the principal of one of appellant’s grade schools and as such had the supervision of the work of seven or eight teachers. Prior to that time he had been a teacher in its schools for six years. In the spring of 1923, appellant decided to re-employ him as principal of the same school for the following year at $165 per month. For some reason it was thought best that he and a few of the other teachers should be required to attend summer school, and earn at least two credits and by reason thereof his salary was increased to $175. A formal contract was executed in which he agreed to attend summer school and earn at least two credits. Shortly before the opening of school that fall appellant forfeited the contract because appellee had not attended summer school and he was not permitted to serve as principal.

After the' expiration of the school year appellee brought this suit to recover for a breach of the contract and averred, inter alia, in his declaration, that he had attended summer school in 1923 and had earned two credits. The general issue was pleaded and the trial resulted in a verdict and judgment for $1,375.

On the trial appellee proved that in 1923 he attended Brown’s Business College in Marion, Illinois, and had earned one credit for proficiency and method in muscular movement writing, and another credit for method, accuracy and speed in rapid figuring. Appellant offered to prove that among teachers and boards of education the term “summer school” as used in the contract had a well-settled meaning, i. e., a summer school for the training of school teachers. That evidence was excluded. The undisputed evidence is that Brown’s Business College is not such a school.

The contract should be construed with a due regard to the surrounding circumstances, the nature of the subject matter, the position of the parties and the apparent known purposes for which the contract was made, so that the language may be understood in the sense intended by the parties. Close v. Browne, 230 Ill. 228; Adams v. Gordon, 265 Ill. 91; George C. Peterson Co. v. Timken Roller Bearing Co., 233 Ill. App. 53-60;

When the contract in question is so construed it seems to us that there is no escape from the conclusion that the term “summer school” was intended by the parties to mean and to refer to a summer school for the training of school teachers. If appellee had attended summer school for kindergarten pupils and had earned two credits, no one would contend, seriously, that he had complied with the terms of his contract. The school to be attended and the credits to be earned should have some reasonable relation to the purpose for which he was employed.

It is quite evident that appellee understood the contract to refer to a summer school for the training of teachers. About the time the contract was executed he had planned an automobile trip to Texas and was anxious to be relieved from attending summer school. He talked with some of the members of the Board and wanted to know if such a trip would be considered as equivalent to a school attendance. One of them asked him why he did not go to school at Carbondale with the other teachers and he said the principal teachers were out and it was only the assistant teachers for the summer; that he had made his plans for the trip to Texas; that there was a summer school for teachers at Waco, Texas, and that he would attend that school. He says that he intended to go to that school, but when he reached Waco he was a week too late for the opening of the school.

Appellee talked with Dr. Harris, a member of the Board, about the matter of attending summer school and his trip to Texas. Dr. Harris says he told appellee that they- did not want him to take reading, writing, arithmetic and spelling, but something that would advance him as principal, for the governing, controlling and superintending as principal and that appellee replied: “I know it, that is the reason that I thought that the trip to Texas would suffice.” Appellee did not deny that conversation. Having failed to comply with his contract he was not entitled to recover.

The Board of Education shall have all the powers of school directors and shall be subject to the same limitations. Callaghan’s Ill. St. Ann. ch. 122, ¶137. The clerk shall keep in a journal a record of the official acts of the Board and on all questions involving the expenditure of money the yeas and nays shall be taken and entered on the records of the proceedings of the Board. Callaghan’s Ill. St. Ann. ch. 122, ¶ 20. It has been held that provisions of that nature are mandatory and a failure to observe them is fatal. People v. New York Cent. R. Co., 314 Ill. 429; People v. Chicago & E. I. R. Co., 314 Ill. 352. This court applied the same rule where the employment of a principal was involved. Crawford v. Roard of Education Dist. No. 88, 215 Ill. App. 198.

The employment of appellee involved the expenditure of money. The motion to employ him was not carried by a yea and nay vote taken and entered upon the record of the proceedings of the Board as required by the statute. On the contrary the record shows that he was employed upon a secret ballot. That being true, we are of the opinion that the president and secretary of appellant were without authority to execute the contract upon which this suit was brought. The judgment is reversed at the costs of appellee.

Reversed with finding of facts.

The clerk will incorporate in the judgment the following : The court finds that appellee failed to comply with the terms of the contract set out in his declaration; that he had no valid contract with appellant.


author: Mr. Justice Barry

text:
    R. J. Stephens, Plaintiff in Error, v. A. H. Bost et al., Defendants in Error.
    1. Appeal and error — right of special state’s attorney to prosecute writ directed to vacation of order of appointment. Where plaintiff in error was appointed special state’s attorney for the prosecution of a highway commissioner, and at the following term the order of appointment was vacated, he was entitled to prosecute a writ of error from such order of vacation as against the contention that he was not a party or privy to the record.
    2. Attorneys and counselors — petition and showing of necessity as prerequisite to appointment. The court was without jurisdiction to appoint a special state’s attorney for the prosecution of a highway commissioner where no petition therefor was filed nor showing made of the necessity for such an order.
    3. Motions and orders — vacation of void order of appointment. Where the order appointing a special state’s attorney was void for want of jurisdiction of the court to make it, the appointee is not injured by a subsequent order vacating the order of appointment, since the court may vacate a void order at any time.
    4. Attorneys and counselors — order of appointment as limiting powers. Under an order appointing a special state’s attorney for the prosecution of one as highway commissioner, the appointee secured no power to prosecute such person for offenses in his individual capacity.
    5. Highways and streets — prosecution of highway commissioner for criminal offense. If one, while acting as highway commissioner, commits a criminal offense, he may not be prosecuted therefor in his official capacity, but only as an individual.

      6. Motions and. orders — vacation of order impossible of performance. Where the order appointing a special state’s attorney to prosecute one as highway commissioner was impossible of performance, the court had power to vacate it at a subsequent term.
    7. Appeal and error — presumption as to grounds for vacating order. On writ of error to review an order vacating a prior order for the appointment of a special state’s attorney, even if the Appellate Court should presume that the court, in making the appointment, acted upon a petition sufficient to confer jurisdiction, the further presumption that the court did not vacate the order of appointment except upon a showing of good cause for so doing would require affirmance of the order of vacation. '
    Error by plaintiff to the Circuit Court of Jackson county; the Hon. A. L. Spiller, Judge, presiding.
    Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed February 17, 1926.
    [This opinion was received for publication on May 31, 1927.]
    R. J. Stephens, pro se.

    . John H. Searing, pro se and for defendant in error Hon. A. L. Spiller.
    ■Lawrence A. Glenn, for defendant in error A. H. Bost.
   Mr. Justice Barry

delivered the opinion of the court.

At the April term of the Jackson circuit court it was ordered that plaintiff in error be appointed special state’s attorney for the prosecution of Hardy Bost as highway commissioner, and at the following term that order was vacated. A motion to dismiss the writ of error on the ground that plaintiff in error is not a party or privy to the record was taken with the case. It has been held that a writ of error may be prosecuted by a party or privy to the record, or by one who is injured by the judgment or who will be benefited by its reversal, or who is competent to release error. Anderson v. Steger, 173 Ill. 112. A special state’s attorney, duly appointed, so long as he may continue in office is to be placed upon the same footing in regard to fees and salaries as is the state’s attorney regularly elected. Lavin v. Board Com’rs Cook County, 151 Ill. App. 236, 245 Ill. 496. That being true, we are of the opinion that plaintiff in error is entitled to- prosecute this writ of error and the motion to dismiss is denied.

The power and authority of the court to appoint a special state’s attorney is found in Callaghan’s Ill. St. Ann. ch. 14, ¶ 6, which provides: “Whenever the Attorney General or State’s Attorney is sick or absent, or unable to attend, or is interested in any cause or proceeding, civil or criminal, which it is or may be his duty to prosecute or defend, the court in which such cause or proceeding is pending may appoint some competent attorney to prosecute or defend such cause or proceeding; and the attorney so appointed shall have the same power and authority, in relation to such cause or proceeding, as the Attorney General or State’s Attorney would have had if present and attending to the same. ’ ’

Under this statute any court in a proper case may exercise the power of appointing a special state’s attorney, whose authority will be limited to the special matter for which he was appointed, but before the court has jurisdiction to do so a petition must be filed setting up the facts which are supposed to render it proper or expedient to make the appointment. Lavin v. Board Com’rs Cook County, 245 Ill. 496; People v. Newsome, 291 Ill. 11. In the case at bar no petition was filed for the appointment of a special state’s attorney, nor was any showing made to the court of the necessity for such an order. The court was without jurisdiction and its order appointing plaintiff in error as special state’s attorney was null and void. That being true, he was not injured by the subsequent order setting aside the previous order and has no just cause for complaint. The court may vacate a void order at any time. Even if the court had jurisdiction to make the appointment the order appointed plaintiff in error, “for the prosecution of Hardy Dost as highway commissioner,” and Ms authority was limited to that special matter. Lavin v. Board Com’rs Cook County, supra. If Bost, while acting as highway commissioner, committed a criminal offense, he could not be prosecuted in his official capacity but only as an individual. The order was to do a thing that was legally impossible, and we know of no reason why the court was not at liberty to vacate it at any time.

It may be suggested that we should presume that the trial court would not appoint a special state’s attorney unless a petition had been filed setting up the facts supposed to render it proper or expedient to do so. "Even if that were true, we should further presume that the appointment would not have been revoked unless the court was shown that there was good cause for doing so. In any view of the case the order complained of must be affirmed.

Affirmed.


author: Mr. Justice Higbee

text:
    Willie Lee Patterson, Defendant in Error, v. Robert Aitken, Plaintiff in Error.
    1. Appeal and error — insufficiency of record to show error in refusing continuance. In absence from the record of the' facts upon which defendant bases his argument that he should have been granted a con-' tinuance because of the withdrawal of his attorneys, due to their misapprehension as to who was the real defendant, the Appellate Court will not interfere with the trial court’s denial of a motion for the continuance.
    2. Parent and child — responsibility of parent for child’s negligence in driving motor vehicle. In an action against a father for personal injuries caused by his minor son’s reckless driving of the father’s automobile in the line of its use by the father, the latter is liable for the acts of the son.
    3. Pleading — denial of ownership under general issue in tort action. In action for personal injuries due to negligent operation of an automobile by defendant’s minor son, the defendant cannot deny Ms ownership of the ear under the general issue.
    4. Evidence — sufficiency of objection to admissibility of ordinance. Objection to the introduction in evidence of a city ordinance as invalid can only be made by specifically pointing out the imperfections rendering it invalid and not by general objections.
    5. Parent and child — admissibility of ordinances in action against parent for child’s negligence. In action for personal injuries due to negligent operation of an automobile by defendant’s minor son, where the evidence tends to show that the father owned the car, evidence of city ordinances violated by the son is competent against the father.
    Error by defendant to the City Court of East St. Louis; the Hon. William P. Borders, Judge, presiding.
    Heard in this court at the March term, 1926.
    Affirmed.
    Opinion filed July 9, 1926.
    [This opinion was received for publication on May 31, 1927.]
    Wheeler, Oehmke & McKnight, for plaintiff in error.
    Louis Beasley and Edward C. Zulley, for defendant in error.
   Mr. Justice Higbee

delivered the opinion of the court.

This is an action brought by defendant in error Willie Lee Patterson to recover damages for personal injuries he claimed to have sustained when Robert Aitken, Jr., the son of plaintiff in error Robert Aitken drove an automobile against him as he was alighting from a street car in the city of East St. Louis on April 27, 1925. There was a verdict and judgment for defendant in error in the sum of $2,500. The facts in proof showed plainly without contradiction that defendant in error was injured by the negligence of the son of plaintiff in error in driving the car of the latter. The grounds urged by attorneys for plaintiff in error for a reversal of this judgment are the action of the trial court in denying their motion for a continuance, the admission in evidence of certain ordinances of the city of East St. Louis, and the giving of the second instruction for defendant in error which told the jury that the filing of the general issue by plaintiff in error admitted the ownership by him of the automobile in question. But little of the matter presented as a basis for the claim that it was error for the trial court to deny a continuance is found in the record, but it appears from the argument of attorneys for plaintiff in error that the original attorneys of record for plaintiff in error in this case were Earl B. Songer and Charles L. Cray. On the day the cause was set for trial these attorneys asked leave to withdraw as attorneys for plaintiff in error which motion was denied by the court. Then the law firm of Whitnel & Browning presented a motion for a continuance, supported by an affidavit of Judge Browning and the affidavit of Earl B. Songer and Charles L. Cray, and also defendant in error. The affidavit of Judge Browning was to the effect that his firm had at 9 o’clock that morning been retained as attorneys and had had no opportunity to consult with their client to investigate the facts, to examine the pleadings, or in any way prepare the case for trial. The affidavit of Songer & Cray stated that they had theretofore been retained to defend the suit and were so employed until 4 o ’clock p. m. of the day before; that they had understood that the defendant in the cause was Robert Aitken, Jr., and not Robert. Aitken, the father; that neither of them had been employed by Robert Aitken the real defendant and that upon learning that the father was the real defendant they asked leave to withdraw as attorneys, and that the cause be continued in order that attorneys for the defendant might prepare the case and that neither of them had ever seen or known either the defendant, Robert Aitken, or his son, Robert Aitken, Jr., prior to 4 o’clock p. m. of the evening before.

The affidavit of plaintiff in error stated that immediately after the service of process on him attorneys Songer & Cray were employed and retained to conduct the defense in said cause and filed a plea to said declaration; that shortly before the convening of court on the day this case was set for trial these attorneys informed him that they had been misinformed as to the real defendant; that they understood the real defendant was Robert Aitken, Jr.; that not having been employed .to represent plaintiff in error but believing they were representing his son they would withdraw from the case and ask for a continuance; that he then immediately employed Whitnel & Browning to represent him; that up to that time Whitnel & Browning had not been informed of any of the facts or as to the status of the pleadings, and that plaintiff in error had a good, substantial and meritorious defense.

Attorneys devote by far the greater part of their argument on this question to a discussion of the connection of some insurance company with this case. They seem to contend that such insurance company carried a liability policy upon the car of plaintiff in error, and that it was discovered by such company that the car driven by the son at the time of the accident belonged to him and not his father, and that thereupon the insurance company abandoned the defense of the suit. This fact nowhere appears in the record. In fact plaintiff in error expressly states in his own affidavit that attorneys Songer & Cray “were employed and retained to conduct the defense in said cause” without stating by whom they had been employed and there is nothing to show that they were employed by some insurance company and not by him. The record is entirely barren of any of the facts on this subject discussed by attorneys for plaintiff in error. The trial judge who heard the motion was necessarily more familiar with the history of the case than this court can become by an examination of this record, and we cannot say that he erred in denying the motion for a continuance.

The negligence charged in the two counts of the declaration was based upon an alleged violation of certain city ordinances set out therein regulating the stopping of automobiles when passing a street car which had stopped to allow passengers to alight. It is argued that these ordinances were improperly admitted in evidence because no proof was made of their passage and publication. The case seems to have been tried by attorneys for plaintiff in error upon the theory that he was not liable for the negligence of his son in driving his, the father’s, automobile, and throughout the taking of the evidence they objected to numerous questions as being incompetent, irrelevant and immaterial, as against this defendant, Robert Aitken. The objection was sometimes stated as being an objection “to any and all testimony regarding acts performed by Robert Aitken, Jr.,” because “it was in no way binding upon or involving this defendant Robert Aitken, Sr.” The particular objection made to. the introduction of the ordinances in question was in the following language: “I object to it because it is immaterial, irrelevant and incompetent, as to this defendant.” This objection to the introduction of ordinances seems to have been upon the same theory as the other objections, and must have been so understood by the trial court, that is, that the father, the plaintiff in error, was not liable for any of the negligent acts of his son and therefore was not liable for any negligent violation of these ordinances by his son. Under the late holding of the Supreme Court in Gates v. Mader, 316 Ill. 313, it seems to be the well settled doctrine of this State that plaintiff in error would in a case such as this be liable for such negligent acts of his minor son. The only plea on file in this case was the general issue, and by the authority of Mueller v. Hayes, 321 Ill. 275, and Carlson v. Johnson, 263 Ill. 556, plaintiff in error could not under the general issue deny the ownership of the car. The grounds of objection as stated therefore seemed to be, not that the ordinances were invalid or not properly enacted, but that they were not competent and relevant under the facts in this case against this plaintiff in error, which was the theory of all of the other objections made throughout the trial of the case by attorneys for plaintiff in error. If the objection had specifically raised the question of the publication or the passage of the ordinances proof thereof might have been made. A general objection to the introduction of an ordinance does not raise the question of its validity. This can only be done by specific objection upon that ground and the imperfections rendering it invalid must be pointed out so that the same can at that time be remedied by proof if possible. Payne v. Village of South Springfield, 161 Ill. 285; Craw v. Chicago City Ry. Co., 159 Ill. App. 100; City of Chicago v. Bullis, 138 Ill. App. 297; Illinois Cent. R. Co. v. Burke, 112 Ill. App. 415, and Wabash R. Co. v. Kamradt, 109 Ill. App. 203. This general objection, therefore, was not sufficient to raise the question of the validity of the passage and publication of the ordinances in question. Plaintiff in error being liable under the authorities above for the negligent acts of his son in driving the father’s car, and there being evidence tending to show that the car driven by the son belonged to the father, the ordinances in question, if the provisions thereof were violated by the son, were as competent and relevant against the father as though the suit had been brought against the son. It was not error, therefore, to overrule the general objections to the introduction of these ordinances.

There being nothing in the record from which it appears that it was an abuse of the discretion of the trial court to overrule a motion for a continuance and no error appearing in the trial of the case the judgment must be affirmed.

Affirmed.


author: Mr. Justice Niehaus

text:
    John E. House, Appellant, v. William W. Wheelock and William G. Bierd, Receivers of the Chicago & Alton Railroad Company, Appellees.
    Gen. No. 8,023.
    1. Carriers — measure of damages for injury to perishable freight. The measure of damages in an action against a common carrier to recover for injury to perishable goods alleged to have been caused by negligence is the difference between the fair cash market value of the goods in that deteriorated condition resulting from the carrier’s negligence and their fair cash market value if they had been delivered without such deterioration.
    2. Carriers — burden of proof in action to recover damages for injury to shipment. Although delivery to a common carrier of perishable goods in good condition and receipt thereof in damaged condition creates a presumption of the carrier’s negligence and makes a prima facie ease which must be overcome by evidence, the burden of proving by a preponderance of the evidence that the carrier’s negligence was the cause of the loss continues to rest with the plaintiff.
    3. Carriers — instruction as to carrier’s liability for injury to shipment by negligenee. Instructions that if the jury found from the evidence that the deteriorated condition of peaches at the receiving station compared with that at the shipping point was not due solely to the negligence of the common carrier, they should find in such defendants’ favor, is so erroneous in failing to state that the carrier would be liable for whatever damage was due to its own negligence, that judgment for the carrier must be reversed.
    Appeal by plaintiff from the Circuit Court of McLean county; the Hon. Edward Barry, Judge, presiding.
    Heard in this court at the October term, 1926.
    Reversed and remanded.
    Opinion filed April 22, 1927.
    Chas. M. Pierce and Hubert J. Thompson, for appellant.
    W. K. Bracken, for appellees; Silas H. Strawn, of counsel.
   Mr. Justice Niehaus

delivered the opinion of the court.

This case involves the question of liability of appellees, William G-. Wheeloek and William Gr. Bierd as receivers of the Chicago & Alton Railroad Company, for damages resulting to the appellant, John E. House, on a shipment of peaches carried by the railroad mentioned from Jerseyville to Bloomington. The peaches in question were contained in 520 baskets, and placed in a refrigerator car 10152 on or about August 6,1923, and the appellant company issued a bill of lading therefor, which stated that the peaches were received in apparent good condition, and the evidence in the case also tends to show that the peaches were in proper shipping order and condition at the time they were packed in the refrigerator car at Jerseyville. When the peaches arrived at Bloomington about the 7th or 8th of August, and the car was opened, it was discovered that about half of the shipment was spoiled. Two hundred twenty-eight baskets were entirely spoiled and had no marketable value, and there were some spoiled peaches in the remaining baskets. The declaration in the case bases the appellant’s cause of action upon alleged negligence of the appellees. The first count avers general carelessness in the transportation of the peaches, and.the second count charges the appellees with specific negligence, namely, that “by means of the long and unreasonable delay of the defendants to re-ice the last-mentioned Chicago & Alton car No. 10152, the 520 baskets of peaches were greatly injured, damaged and spoiled.” The trial of the case resulted in a verdict and judgment for the appellees, and this appeal is prosecuted from the judgment. A motion was made by the appellant, which we took with the case, to strike from the brief of the appellee the opinion of the trial court. There was no impropriety in attaching this opinion as a part of appellees ’ brief and argument; the motion is therefore denied.

One of the errors assigned is the ruling of the court on the question of the proper measure of damages. The rule of law with reference to the measure of damages which may be recovered in an action of this kind is that if the jury find that the peaches were injured in transit in whole or in part by the negligence of the carrier then the measure of damages would be the difference between the fair cash market value of the peaches in their injured or deteriorated condition resulting from carrier’s negligence, and the fair cash market value of the peaches if they had been delivered to appellant without such injury or deterioration. Watson v. Missouri Pac. R. Co., 187 Ill. App. 220; Coyne v. Grand Rapids & I. Ry. Co., 185 Ill. App. 431 ; Ruddell v. Baltimore & O. R. Co., 152 Ill. App. 218.

It is contended by the appellant that the court erroneously modified certain instructions requested by him concerning the issues in the case, and it is also contended that where merchandise of a perishable character is delivered to a railroad carrier in apparently good condition, the burden of proof is shifted to the carrier to prove facts exculpating it from the presumption of negligence which would arise from the fact that the fruit is in a rotten condition after its transportation to the point of destination. While it is true that the presumption of negligence on the part of the carrier would arise under those circumstances, it is not the law that the presumption changes the burden of proof of alleged negligence of the carrier. It is distinctly stated in Helbig v. Citizens’ Ins. Co., 234 Ill. 251, that “Legal presumptions do not shift the burden of proof. Their only effect is to create the necessity of evidence to meet the prima facie case created thereby, and which, if no proof to the contrary is offered, will prevail. The burden of proof, — meaning the obligation to sustain the truth of the claim affirmed by a preponderance of evidence, — rested on the appellee throughout the trial.” And in Vischer v. Northwestern El. R. Co., 256 Ill. 572, the court said in passing on the same point: “As a matter of proof, when an injury is shown and that it arose from something within the control of the carrier or from some danger which it was his duty to anticipate and provide against, a presumption of negligence on the part of the carrier or his servants arises. (North Chicago Street Railway Co. v. Cotton, 140 Ill. 486; New York, Chicago & St. Louis Railroad Co. v. Blumenthal, 160 id. 40; Chicago City Railway Co. v. Carroll, 206 id. 318.) The presumption does not arise from the injury itself, but from the injury and the cause or source of it, but when the injury is proved and the cause is connected with the carrier a prima facie case is made out for the plaintiff. (3 Thompson on Negligence, sec. 2756.) The carrier is then called upon to meet and overcome the prima facie case, and this is often spoken of as the burden of proof, which, in the sense of the necessity of producing evidence to meet a prima facie case, passes from party to party as the case progresses, but the burden of establishing the truth of the issue by a preponderance rests and remains with the party having the affirmative. (Egbers v. Egbers, 177 Ill. 82.) ”

We find no error in the court’s modifications of the instructions requested by the appellant, but are of opinion that the instructions as modified presented the law with substantial correctness. Error is assigned on the giving of the following instruction for the appellees :

“You are instructed by the Court that if you believe from the evidence that the condition of the peaches in question, as same was found to be upon arrival at Bloomington, was due in whole or in part to the condition of said peaches, or some of them, at the time they were loaded into car at Jerseyville, or that said condition was caused in whole or in part by the manner or method in which they were loaded into the car, then without regard to any other question or issue there can be no recovery by the plaintiff in this case, and your verdict should be for the defendants.”

The clear import of this instruction is that if the spoiled condition of the peaches in question was due in part from a condition of said peaches, or some of them, at the time they were loaded into the car at Jerseyville, that then there could be no recovery of damages. The law is that a railroad carrier is liable only for damages resulting from its own negligence, but though the spoiled condition of some of the peaches might be attributable to natural deterioration or because of improper packing or loading, this would not exempt the carrier from liability for that part of the damages to the peaches resulting from its negligence while the peaches were in transit. What was said in Ruddell v. Baltimore & O. R. Co., supra, concerning a shipment of oranges, is directly applicable to this case: “That oranges are in their nature perishable is common knowledge. The oranges which were the foundation of this dispute were 17 days in transit, and no claim is made of delays in such transit. It is apparent, therefore, that so long a journey, occupying so many days, may have caused a natural deterioration in the condition of the oranges, attributable to natural causes and not to the negligence of the carrier. By instruction D the carrier was made liable for all deterioration in the condition of the oranges, whether from natural causes beyond the control of the carrier, or attributable to its negligence. The liability of the carrier goes no farther than for damages occasioned by its negligence. ’ ’ The vice of the instruction referred to is that in effect it told the jury that if any part of the spoiled condition of the peaches in question, or the spoiled condition of any part of the peaches was attributable to a condition of the peaches when they were loaded into the car at Jerseyville, or to an improper loading or. packing of the peaches, then the carrier would be entirely exempted from liability, and from the payment of any damages, which resulted from injury caused by its negligence in transporting the peaches. The criticism of the foregoing instruction applies with equal force to the following instruction which the court gave at the request of the appellees:

“The Court instructs you, as matter of law, that a railroad company is only liable for such deterioration in merchandise carried by it as is attributable to its negligence. And in this connection you are further instructed that unless you believe from the evidence in this case that the condition of the peaches in question at the time of arrival at Bloomington was caused entirely and solely by the negligence of the defendants, your verdict should be in their favor.”

In this instruction the jury were also told that unless the spoiled condition of the peaches was caused entirely by the negligence of the appellees, their verdict should be in favor of the appellees. Assuming that deterioration in the condition of some of the peaches upon their arrival at Bloomington was the result of natural causes, or the deterioration in the condition of some of the peaches was caused by improper packing or loading in the car at Jersey ville, under the foregoing instruction the jury should not render a verdict for the appellant for any damage to the peaches caused by the negligence of the appellees. The question of contributory negligence is not involved in this case.

For the reasons stated, we are of opinion that both the instructions referred to were erroneous, and that the error wras prejudicial to the appellant’s right of recovery. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


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    C. W. Durflinger, Appellee, v. Mary E. Arnold et al., Appellants.
    Gen. No. 8,024.
    1. Estates op decedents — liability of devisee for debts of testator. Under Cahill’s St. eh. 59, H and 12, as against existing creditors of the devisor every devise of realty is fraudulent in law, if not in intent, and the devisee is liable for such debt to the extent of his share in the realty if the creditor brings action against him before he has aliened-the share, and in ease the devisor’s personal estate should be insufficient to pay his debts, the devisee is also liable personally for such share of the debt after aliening his share of devisor’s realty.
    2. Estates op decedents- — inapplicability of limitation of time for filing claim where devise is fraudulent. Cahill’s St. eh. 3, Tf 71, barring claims against an estate not filed within a year, does not apply to the claim of a creditor of a testator devising his property in fraud of such claim, in ease the testator’s personalty was insufficient to satisfy the debts against his estate, but the creditor may proceed after the time of said bar to collect his claim from the realty in the hands of the devisees or in ease they have aliened the same from them personally as provided by Cahill’s St. eh. 59, If 12.
    Appeal by defendants from the Circuit Court of McLean county; the Hon. Edward Barry, Judge, presiding.
    Heard in this court at the October term, 1926,
    Affirmed.
    Opinion filed April 22, 1927.
    Stone & Taylor and Oglevee & Franklin, for appellants.
    Adlai H. Rust, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case an appeal is prosecuted from a judgment rendered in the circuit court of McLean county in favor of the appellee, 0. W. Durflinger, for the sum of $2,468.60 against the appellants, Charles Frank Arnold, Imo M. Mathers, Ruby I. Fossett, Bernice R. Richardson and Grace E. Arnold, as devisees of the estate of Joseph Arnold, deceased. The right to recover the judgment is based on the provisions of sections 11 and 12 of the Act of Frauds and Perjuries, ch. 59 of the Revised Statutes, Cahill’s St. ch. 59, fifí 11, 12. The facts relied on as a ground of recovery are stipulated by the parties. It appears from the stipulation that Joseph Arnold, deceased, jointly with Thomas Arnold, on March 1,1920, for value received, made and delivered a judgment note to the appellee, C. W. Durflinger, for the sum of $2,000, which was payable to the order of the appellee, with interest at the rate of 7 per cent per annum from the date thereof. Joseph Arnold died testate January 17, 1922, leaving a last will and testament, which was admitted to probate in the county court of McLean county on February 8,1922. The will provides that after the payment of the debts, the use benefit and income of all his estate and property shall go to his wife, Mary E. Arnold, during her lifetime. Subject to the provision in favor of his wife, he devised all of his estate and property to his five children, Charles Frank Arnold, Imo M. Mathers, Ruby I. Fossett, Bernice I. Arnold and Grace E. Arnold, who are the appellants herein, Bernice I. Arnold named in the will being now Bernice R. Richardson. C. S. Arnold was duly appointed administrator of the estate with the will annexed, on the 8th day of February, 1922, and qualified as such, and fixed upon the April term, 1922, of the county court of McLean county for the adjustment of claims against the estate, and gave notice thereof by publishing and posting in the manner required by the statute. That the testator at the time of his death was the owner of personal property and real estate; that the personal property which he had at the time of his death consisted of cash in the bank amounting to the sum of $161.34, and he had other miscellaneous property of the value of $2501.10, all of which personal property was turned over and delivered to Mary E. Arnold, the widow of the testator, as and for her widow’s award; that the real estate of which the testator died seized consisted of 320 acres of land in McLean county of the value of $200 per acre, which was incumbered at the time of testator’s death by mortgages amounting to $20,000; that between February 8, 1922, the date of the granting of letters of administration, and February 26, 1923, the date of the final report and discharge of the administrator, the administrator collected from rents of the land which the testator owned at the time of his death, and from money advanced by the devisees and heirs of the deceased testator, the sum of $43,138.17, all of which was used by the administrator to pay claims filed against the estate of the testator, and to discharge the mortgages against the real estate above mentioned; that on February 27, 1923, the administrator made his final report to the probate court of McLean county, showing the receipt of the personal property mentioned, and the sums of money received from rents, and by advancement from the devisees of the testator, and showing the transfer of said property to the widow for her widow’s award, and the disbursements of all the sums received by him from rents and advancements in payment of claims filed against the estate of the testator, and of the mortgages and taxes which were liens upon the land of the testator; and that upon the same date an order was entered approving final report and discharging the administrator with the will annexed; that the appellee herein did not at any time file a claim against the estate of the testator ; that claims were filed and allowed against the estate of the testator in the sum of $20,945.03; that after February 27, 1923, the date of the filing of his final report, no assets of any nature whatsoever came into the hands of the administrator with the will annexed; that this suit was filed on October 19, 1925; and that after the filing thereof on the 19th day of January, 1926, C. S. Arnold, the administrator mentioned, died; that in June, 1926, following, Maurice B. Stern was appointed administrator de bonis non with the will annexed of the estate of the testator, but that no assets of any kind whatsoever have come into the hands of the administrator de bonis non; that C. S. Arnold, administrator with the will annexed did not pay anything to the appellee herein at the time he made distribution of the sum of $48,138.17 before mentioned; that upon the death of the testator, Mary E. Arnold his widow went into possession of the real estate devised to her for life and received all the rents and profits therefrom until the date of her death, except the rents to February 27,1923; and that upon her death the five children mentioned in the will of the testator as devisees, who are the appellants herein, went into possession of said real estate of which the testator died seized, and received all the rents and profits therefrom until March 1, 1926, at which time a sale of real estate was made by said children and devisees at a price greater than the value of the land at the time of the death of the testator.

Section 11 of chapter 59 of the Revised Statutes, entitled Frauds and Perjuries, Cahill’s St. ch. 59, ¶ 11, provides that any person who has any debt or demand against any devisor may have and maintain the same action against the executor and devisees as lies against executors and administrators upon the bonds and specialties of the devisor, and section 12, Cahill’s St. ch. 59, ¶ 12, provides that when any lands shall be devised to any devisee, and the personal estate of the devisor of such devisee shall be insufficient to discharge the just demands against such devisor’s estate, such devisee shall be liable to the creditor of the devisor to the full amount of the lands which were devised to said devisee.

With reference to the right of the appellee to recover from the devisees the amount of the indebtedness due him from the testator under the sections of the statute referred to, where the personal estate of the testator is insufficient to discharge the just demands against the devisor’s estate, as is disclosed by the stipulation of facts herein, the Supreme Court held in Ryan v. Jones, 15 Ill. 1: “At the common law, a devisee was not liable for the debts of the testator even in respect of lands devised. Nor was an heir liable for the debts of the ancestor, in respect of lands descended, except in particular cases; such as debts due on specialties, in which the ancestor expressly bound the heirs; and on judgments recovered against the ancestor, and recognizances acknowledged by him. And where the heir aliened the lands before suit brought, the creditor was without remedy against him. 2 Williams on Executors 1201; Browne on Actions at Law 253; 1 Cruise’s Digest 67. The statute in question was passed to obviate these inconveniences, and enable the creditor of a deceased person to reach the lands in the hands of the heir or devisee, where the personal estate is not sufficient for the payment of the debts. Every devise of real estate is made fraudulent and void, as against the existing creditors of the devisor. It is fraudulent in law, without regard to the question of intention. The devisee has no just claim to the lands, until the debts of the testator are fully discharged. Nor has the heir any superior right in the lands of his ancestor. They both acquire the lands subject to the payment of the debts of the former owner. They are only entitled to the surplus that may remain after those debts are discharged. If the creditor cannot obtain satisfaction of his debt from the personal estate, he may resort to the real estate in the hands of the heirs or devisees; and in case of a bona fide alienation of the same before suit brought, he may charge them personally with its value.” The Taw stated in the case referred to has been repeatedly emphasized and followed in a number of cases in the Supreme and Appellate Courts. Hoffman v. Wilding, 85 Ill. 453; Guy v. Gericks, 85 Ill. 428; Campbell v. Potter, 147 Ill. 576; People v. Brooks, 123 Ill. 246; McLean v. McBean, 74 Ill. 134; Branger v. Lucy, 82 Ill. 91; Schopper v. Hildebrandt, 14 Ill. App. 353; Van Vuren v. Longstreet, 108 Ill. App. 159; Allen v. Lipscomb, 221 Ill. App. 150; Straus Bros. Co. v. Rush, 241 Ill. App. 216.

It is contended that inasmuch as the appellee did not present his claim against the estate of the testator within the time required by section 70 of the Administration Act, Cahill’s St. ch. 3, ¶ 71, which requires that demands against estates of deceased persons must be exhibited within two years from the grant of letters of administration, the claim is barred, and a number of cases are cited in which the limitation referred to has been held to bar claims not exhibited or presented as required by the section of the Administration Act referred to. None of these cases however involve the question that is here presented, namely, where there was a deficiency in the personal estate, or where the personal estate was insufficient in value to pay the claims against the estate administered upon. Special emphasis is laid by the appellants upon the recent case of Beebe v. Kirkpatrick, 321 Ill. 618, in which the court uses this express language: “Not having filed her claim within the time prescribed by law she is barred from pursuing the assets, real or personal, into the hands of the heirs, devisees or legatees. The law having given a remedy in such case it must be pursued.” The Beebe case, however, clearly discloses that the language used is intended to apply to cases where the personal estate of a deceased person is sufficient to pay the indebtedness and claims against such estate, and does not apply to bar a right to recover under sections 11 and 12 of the Frauds and Perjuries Act, Cahill’s St. ch. 59, ¶¶ 11, 12, where there is a deficiency of personal assets. This is made clear in that part of the opinion where the court says: “The bill in this case was not framed upon the theory that there was a deficiency of personal assets in the estate of Henry S. Dooley to pay the debts of the deceased, as the bill alleges that all the assets and property of which Dooley died seized had been disposed of and divided between the widow and the plaintiffs in error by the administrator, and that each of the plaintiffs in error had re-. ceived assets and property of the estate in an amount greatly in excess of the amount due upon the notes in question, and the evidence in the case shows that the widow and plaintiffs in error each received from the personal estate of the deceased, after the payment of all claims which had been allowed against the estate, the sum of $1578.69.”

We conclude therefore that under the facts stipulated, the appellee had a right to recover from the appellants as devisees of the testator the amount of the debt due him from the deceased as fixed by the judgment rendered against them, and the judgment is therefore affirmed.

Judgment affirmed.


text:
    A. F. Dougherty, Appellee, v. A. B. Bliss, Appellant.
    Gen. No. 8,040.
    1. Appeal and error — when defendant submitting to jurisdiction cannot question it on appeal. Where defendant in replevin submits to the trial court’s jurisdiction by pleading and going to trial, he cannot first raise on appeal from the judgment the objection that the trial court was without jurisdiction because the property described in the writ was not seized by the sheriff.
    2. Replevin — sufficiency of evidence to show ownership of property. Evidence in replevin for a photographic negative that the plaintiff agreed to pay and paid the cost of making the negative and for a dozen prints therefrom justifies the trial court in finding that the negative belonged to the plaintiff rather than to the defendant who claimed it on the ground that the pay was for the work involved in order that the prints could- be made.

      Appeal by defendant from the Circuit Court of Logan county; the Hon. Frank Lindley, Judge, presiding.
    Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed April 22, 1927.
    Covet & Woods, for appellant.
    C. Everett Smith, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case the appellee A. F. Dougherty commenced an action in replevin in the circuit court of Logan county to recover the possession of a “negative” made of a picture of Abraham Lincoln, which he claimed to own. A writ of replevin was issued, returnable to the May term, 1921. The service of the writ by the sheriff was indorsed thereon, namely, as follows: “I have duly served the within writ upon the within named A. B. Bliss by reading and at the same time delivering to him a true copy thereof this 5th day of May, 1921. Possession of "property named in this writ not taken.” The appellant Bliss was served and appeared in court by his attorneys, and filed three pleas in defense of the action, namely, non cepit, non detinet and a plea of property in the defendant, and issue was joined on these pleas, and thereafter a jury was waived by agreement of the parties, and a trial had by the court, and the trial resulted in a finding by the court that from the evidence produced the right of possession of the “negative” in question was in the appellee, and that the appellant was guilty of wrongful detention of the negative, and the court assessed one cent damages. Thereafter on the same day, on motion of the appellee, the court ordered the “negative” in question, which had been brought into court under a subpoena duces tecum to be used as evidence in the trial, and had been impounded with the clerk for that purpose, be turned over to the appellee. An appeal is prosecuted from the judgment.

Appellant contends that inasmuch as the property described in the writ of replevin was not seized by the sheriff, the court was without jurisdiction to try the case or the issues in which appellant joined. We cannot agree with this contention. The court had jurisdiction of the subject matter of the suit, the right to the property and possession thereof, and the court also had jurisdiction of the person of the appellant, and the appellant submitted himself to the jurisdiction of the court by joining in the issues raised by the pleadings, and submitting them to the court, and waiving a jury for that purpose; and adducing evidence to the court to bring about and obtain an adjudication of the matter, and the court made a finding and rendered a judgment concerning the matter in issues, which he seeks now to have reviewed by this court. By the action of the parties the character of the suit was changed from a suit in rem, to a personal action for the determination of the property rights which were involved, and the recovery of damages. “A party cannot in a reviewing tribunal succeed upon a theory of the law inconsistent with that upon which he tried his case in the nisi prius court.” Davis v. Illinois Collieries Co., 232 Ill. 284; Zukas v. Appleton Mfg. Co., 200 Ill. App. 403. Under the familiar rule the attitude of the parties remains the same in this as in the trial court, and the controversy between them is to be determined on the theory which they have adopted and proceeded upon in the trial courts. Illinois Cent. R. Co. v. Heisner, 192 Ill. 571; Grubb v. Milan, 249 Ill. 456; City of Chicago v. University of Chicago, 228 Ill. 605; Oliver v. Oliver, 179 Ill. 9; Mueller v. Rosen, 179 Ill. 130; Winnard v. Clinton, 233 Ill. 320; Jones v. Supreme Lodge Knights of Honor, 236 Ill. 113; N. K. Fairbank Co. v. Nicolai, 167 Ill. 242; Cleveland, C., C. & St. L. Ry. Co. v. Stephens, 74 Ill. App. 586.

It is further contended that the evidence is insufficient to show that the appellee was entitled to the possession of the property involved, or that the detention of the same by the appellant was wrongful. This question in this case is to be determined on the basis of the ownership of the property. The testimony of the appellee on this point is as follows: “I took this photograph to the defendant to have it copied, enlarged so that I could market it. Told him to make a good 7 by 9 negative, get all there was in the picture. I asked him what he would charge and he said, ‘I will make the negative for $4.00. I will make as many prints as you like for 35 cents each. ’ I told him to make the negative, and to make one print and I would look at it and see if it suited me. I looked at the print and bought a dozen. ’ ’ The evidence also discloses that the appellee settled for the negative by doing some picture framing for the appellant, and that this work squared their accounts, and that in this way the appellant was paid for making the negative. The appellant contends that the inference should be drawn from this contract with appellant for the making of the “negative”; that the negative was to become the property of the appellant; that he would make the negative for his own use as a photographer. It is not a reasonable inference to assume' that appellee would pay the cost of making the “negative” in order to have it become the property of appellant after appellee had paid for it. We are of opinion that the court drew the proper inference from the testimony referred to, namely, that the appellant was making the “negative” for the appellee; and that when the appellee paid for the “negative,”, it became his property; and that therefore the appellant was guilty of a wrongful detention of the same.

In view of the conclusions we have reached, it seems unnecessary to discuss the questions raised concerning the matter of the issuance of alias and pluries writs of replevin after the return of the original writ, also the question raised about the validity of the order to the clerk, directing him to turn the “negative,” which the court had impounded with the clerk, over to the appellee. The latter question is not involved in this appeal.

For the reasons stated, the judgment is affirmed.

Affirmed.


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    Logan Hay and R. Allan Stephens, Surviving Partners of Brown, Hay and Stephens, Appellees, v. The First National Bank of Springfield, Illinois, Appellant.
    Gen. No. 8,051.
    1. Banking — when drawn, bank cannot charge off check credited to depositor. Where the holder of a cheek deposits it in the bank on which it is drawn and the bank credits his account with the amount and charges the drawer’s account, it cannot thereafter, without the holder’s consent, charge his account and credit the drawer’s, notwithstanding its deposit slips provide that all items received for deposit are credited “subject to final payment, reserving the right to charge back any items not paid.”
    2. Banking — insufficiency of evidence to show drawee bank’s right to charge off check credited to depositor. In suit by a depositor against a drawee bank for the amount of a check credited to the former’s account but afterwards charged back, the bank’s claim that it was justified in this because the drawer’s account with it was partly based on doubtful checks is without merit after it has appropriated part of the drawer’s account to payment of its own claims and paid out small checks upon it.
    Appeal by defendant from the County Court of Sangamon county; the Hon. Roger E. Chapin, Judge, presiding.
    Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed April 22, 1927.
    T. W. Quinlan, for appellant.
    Brown, Hay & Stephens, for appellees.
   Mr. Justice Niehaus

delivered the opinion, of the court.

The appeal in this case is prosecuted from a judgment of the county court of Sangamon county, in favor of the appellees, Logan Hay and E. Allan Stephens, surviving partners of Brown, Hay & Stephens, and against the appellant, The First National Bank of Springfield, Illinois. The judgment is for $987.43, and based on a check drawn for that amount against an alleged balance due the appellees in their deposit account which the appellant bank carried. Whether or not that balance was legally due them and subject to check was the question presented for determination in the trial court, and is now involved in this appeal.

The material facts which are the basis of the judgment are practically undisputed. The Butler Oil Company was a depositor of the appellant bank, and had a deposit account there; it drew a check for the sum of $987.43 on May 28, 1924, against its account in the appellant bank, payable to the order of the Apex Petroleum Company, which was indebted to the appellees, and in the regular course of business, the Apex Petroleum Company assigned the check by indorsement to the appellees in payment of its indebtedness. The appellees who also had a deposit account in the appellant bank accepted the check, and on May 31st following deposited the check in the appellant bank, to be credited to their account in the bank. At the time the check was deposited by the appellees for credit in their account, and received by the appellant bank for that purpose, the Butler Oil Company had a credit balance in their checking account of $2,644.72. Appellees’ deposit went through the regular course of clearance which is followed by the bank, to determine whether a check is acceptable and should be cleared, and, as a result, during the day upon which the appellees deposited the check, the credit balance in the checking account of the Butler Oil Company was charged with the amount of the check in question, namely, $987.43, and the same amount was credited to the appellees in their account. Thereafter, on June 2, 1924, following, the appellant bank changed the entries in the respective accounts of the appellees and the Butler Oil Company, by transferring the amount of the check in question back as a credit to the account of the Butler Oil Company, and wiped out the credit given appellees, and the check was thereupon returned to the appellees, and at the same time notifying them that the bank refused to accept the cheek for the reason that the Butler Oil Company did not have sufficient funds on deposit for that purpose. The record also discloses the fact that on the day the credit which had been given the appellees had been withdrawn from their account and transferred back to the account of the Butler Oil Company, it restored the same amount of credit balance of the Oil Company as before the acceptance of the check from appellees for deposit, namely, $2,644.72; and that thereupon the appellant bank utilized this balance as restored in payment of a $2,500 note which it held against the Butler Oil Company. It is contended by the appellant bank that it was within'its legal rights in revoking the transaction by which the appellees’ account was credited with the amount of the check, on the day of its deposit, because it had accepted the check under the conditions printed on the deposit slip, which was used by the appellees in making the deposit. The conditions referred to, which are printed on the deposit slip, are as follows: “All items received by this bank for deposit are credited subject to final payment, reserving the right to charge back any items not paid.” The conditions insisted upon as applicable here and indicated on the deposit slip are that it was received “subject to final payment,” and “the right to charge back any items not paid.” It is evident, however, that the matter of final payment could not have any reference to a check to be paid out of an account in the same bank where the deposit is made, but necessarily had reference to checks deposited which are finally to be paid by other banks or persons, that it to say, where tentative payment is made by the bank of deposit and final payment is refused by some other bank on which it is drawn. In the conditions on the deposit slip two payments are involved, the preliminary payment by the bank receiving the check for deposit, and the refusal of final payment by the bank on which the check is drawn. In this case there could be but one payment in the regular course of the business of the bank, and the vital question presented for determination is, Was this check paid by the appellant bank on the day of its deposit by the appellees, by giving the account of the appellees credit for the amount of the check and charging the same against the account of the Butler Oil Company? Practically this same question was involved in the case of American Exchange Nat. Bank v. Gregg, 138 Ill. 596, and in that case the court said: “At the close of business in the afternoon of June 14, the books of the bank showed a credit balance to the account of C. J. Kershaw & Co. of $11,401.17, and on the morning of June 15, Kershaw & Co. deposited to their credit $399,200. There were therefore sufficient funds in the bank to the credit of Kershaw & Co., as appeared from the books of the bank, to pay the check when payment was demanded, unless the bank had the right to deduct from the account of Kershaw & Co. a certain check for $256,800, which had been drawn on the bank by Kershaw & Co., in favor of D. Eggleston & Son, on June 13, two days before. This check, on the afternoon of June 13th, was taken to the bank by D. Eggleston & Son, properly endorsed by them. The bank accepted the check, stamped it, paid it, and placed the amount thereof to the credit of D. Eggleston & Son. But the bank did not then charge the check to the account of Kershaw & Co. If the bank had charged the check to the account of Kershaw & Co., their account would have been largely overdrawn. It also appears that on the afternoon of June 14 the bank charged back the check for $256,800 to the account of D. Eggleston & Son, but the evidence fails to show any authority for this action from D. Eggleston & Son. * * * As has been seen, the check Kershaw & Co. gave to D. Eggleston & Son was presented to the bank for payment, properly endorsed by the payees. The bank received the check, stamped it, paid it, and placed the amount thereof to the credit of D. Eggleston & Son upon the books of the bank. This must be regarded as a payment of the check. The transaction was as complete a payment as if the bank, when the check was presented, had paid in money the amount thereof into the hands of D. Eggleston & Son, and they, in turn, had deposited the money in the bank to their credit. When the check was presented and accepted by the bank and cancelled, and deposited to the credit of D. Eggleston &.S011, as between the depositors and the bank the transaction was closed, and the bank had no authority afterwards, without the consent of D. Eggleston & Son, to charge the check back to their account. That act, without such consent, was a nullity.” It is clear from the law stated in the case cited that the transaction between the appellees and the appellant bank with reference to the check in question, by which it was received for deposit, and as a deposit was credited to the deposit account of the appellees, and charged against the deposit account of the Butler Oil Company, in the regular course of the business of the bank, became a closed transaction between the parties on the day of the deposit and amounted to a payment of the check to the appellees on that day, and the bank had no authority afterwards to make the change by which it charged the check back without the consent of the appellees. Such act was a nullity.

Some evidence was offered on the trial tending to show that the balance to the credit of the Butler Oil Company in its account was not real, or was based upon checks drawn on other banks that might be returned unpaid, and that the balance was in the control of the appellant bank, and could have been wiped out by them at any time. It is sufficient to say with reference to these contentions that the appellant bank is not in position to claim that the balance to the credit of the Oil Company was not really due the Oil Company and subject to its check, because the record discloses that the appellant bank after its transactions with the appellees continued to recognize this credit balance as due to the Butler Oil Company, by after-wards appropriating it to the payment of a note which it held against the Butler Oil Company, and after it had returned the check in question to appellees and also paid other small checks of the .Butler Oil Company out of the same balance.

We find "no error in the refusal of the court to hold the propositions of law presented by the appellant. The judgment is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Gridley

text:
    E. L. Snider, Plaintiff and Appellee, v. W. C. Mullins Construction Company, Defendant, on appeal of Central Trust Company of Illinois, Garnishee, Appellant.
    Gen. No. 31,256.
    1. Garnishment — ehoses in action in hands of trustee of different capacity as subject to. Where, by the terms of a trust agreement securing the bonds of a construction company, the company is required to deposit from time to time with the trustee tax bills received by the company for work done by it, when the bills are in proper form and have been approved by the company’s banker, tax bills placed by the company in the trustee’s hands but not in the required form and not approved by the banker do not come under the trust but are subject to garnishment as property of the company.

      2. Garnishment — municipal tax bills as subject to. Tax bills, which are certificates of indebtedness issued by a city for public improvements, are "choses in action" subject to garnishment.
    3. Garnishment — when bondholders secured by trust agreement not proper parties to proceeding against trustee. Holders of bonds amply secured by tax bills in the hands of a trustee have no claim upon other tax bills which the trustee has refused as not in proper form, and for which it has made no claim to the issuing company as replacement of possibly defective tax bills in the manner and time required by the trust agreement, and such bondholders are, therefore, not proper parties to proceedings by a creditor of the cestui que trust to garnishee the tax bills in the hands of the trustee.
    4. Garnishment — accrued interest due from garnishee as subject to. A trust company is liable as garnishee for a balance of interest it owes the garnishment defendant under its agreement to pay the same on funds deposited with it as collateral for the issuance of bonds and on its failure to show under the agreement by the defendant any default which would entitle it to hold the interest.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Philip J. Finnegan, Judge, presiding.
    Heard in the second division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed May 17, 1927.
    Pam & Hurd, for appellant.
    Stephen A. Cross, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.'

On October 9, 1925, in the municipal court of Chicago, plaintiff commenced an action in assumpsit against defendant, a Missouri corporation (hereinafter referred to as the Construction Co.), to recover $9,000, claimed to be due to him for certain commissions. On the same day, in attachment in aid proceedings, the Central Trust Company of Illinois (hereinafter referred to as the Trust Co.) was summoned as garnishee. The Construction Co. did not appear and a judgment by default for $9,000 was rendered against it in plaintiff’s favor. Numerous interrogatories, original and additional, as well as answers of the Trust Co. thereto, were filed, and on the issues framed there was a hearing without a jury, resulting in the court, on February 17, 1926, entering a judgment against the Trust Co. (garnishee) for $493.78, and also adjudging that certain tax bills, amounting to $2,013.76, and received by the Trust Co. from the Construction Co. on October 8, 1925 (the day before the garnishment writ was served) “be turned over and delivered * * * to the bailiff of the Municipal court to be sold for the use of the plaintiff,” etc. By this appeal the Trust Co. seeks to reverse the judgment.

From the bill of exceptions it appears that the only evidence heard upon the trial consisted of the several answers of the Trust Co. to the interrogatories and the testimony of G-. B. Helffrich, examined by plaintiff’s attorney under section 33 of the Municipal Court Act, Cahill’s St. ch. 37, 421. There is no dispute as to the material facts. The Trust Co. is a trustee under a lengthy trust agreement, signed by it and the Construction Co. on December 1, 1924, the purpose of which was to afford security for the latter’s bonds to be issued in successive series. A copy of it is attached as an exhibit to the first answer of the Trust Co., filed October 26,1925. It recites in substance that the Construction Co. proposes to issue its 6 per cent collateral bonds of different series to be secured by the pledge of special tax bills issued by the city of Kansas City, Missouri, in payment for public improvements, and that the Construction Co. intends, from time to time, to pledge such tax bills with the Trust Co. under terms and conditions mentioned in the agreement. In section 5 of article I it is provided that, as security for the payment of each series of bonds, the Construction Co. shall from time to time cause to be transferred and deposited with the Trust Co., as trustee, tax bills, “which shall have been approved in writing by H. M. Cammack of Chicago, Illinois,” of a “principal face amount and/or cash equal to not less than 112% per centum of the total principal amount of the bonds of such particular series from time to time outstanding, which special tax bills and/or cash shall be held by the Trustee in trust for the equal security, benefit and protection of the several holders of the bonds of such particular series (and not for the holders of the bonds of any other series) * * Two series of bonds designated as first and second, had been issued. From the Trust Co.’s second answer, filed December 24, 1925, it appeared that the first series of bonds, dated December 1, 1924, had been issued to the aggregate amount of $150,000; that $37,500 of these bonds had'matured and been paid; and that $112,500 worth were still outstanding, for which the Trust Co. held on deposit, as collateral therefor, cash and tax bills amounting to about 112% per cent of their par value. As to the bonds of the second series it appeared that their aggregate amount was $150,000, dated July 1, 1925; that they had all been issued and delivered on July 22, 1925; that none had matured and all were outstanding; and that the Trust Co. held on deposit, as collateral therefor, more than $28,000 in cash and tax bills of an aggregate face value of about $144,000, which security was considerably more than 112% per cent of the par value of said bonds. It further appeared in substance from said answer that, when the bonds of said second series were issued, the Construction Co. did not possess tax bills sufficient in amount to properly secure them; that it deposited with the trustee some tax bills as security, and it was agreed between the two companies that the bonds should nevertheless be issued, that out of the cash proceeds received from their sale a sufficient amount should be retained by the Trust Co. to make up the necessary amount of collateral under the trust agreement until such time as the Construction Co. could deposit other tax bills, and that, upon such tax bills in proper form being deposited, cash withdrawals in proportionate amounts might from time to time be made by it; that this agreement was acted upon and thereafter from time to time the Construction Co. deposited with the Trust Co. certain tax bills, properly indorsed and approved, and in lieu thereof various amounts of. cash in proper proportions were withdrawn by it, and that from the date of the issuance of said bonds and until the filing of said answer, the Construction Co., upon deposit with the Trust Co. of tax bills, had withdrawn from time to time cash to the aggregate amount of about $65,000.

It further appeared that the Construction Co., on October 8, 1925, acting under this special agreement, delivered to the Trust Co. certain tax bills of the aggregate face value of $2,013.76, “accompanied by a request for withdrawal of an equivalent amount in cash” from the funds on deposit as security for the bonds of said second series, but that said tax bills were not approved in writing by H. M. Gammack and were not otherwise in proper form according to the provisions of the trust agreement and the same were not accepted by the Trust Co. In said second answer of the Trust Co., responding to an appropriate interrogatory, it is stated that, had it not been for the service of the garnishment writ on it on October 9, 1925, cash in the amount of the face value of said tax bills “would have been remitted to the Construction Co., providing the supporting papers and tax bills were in proper form and complied in all- respects with the requirements of the trust agreement.” And G-. R Helffrich, assistant secretary of the Trust Co. and who was in charge for it of all matters in connection with said issues of bonds and said trust agreement, testified: “The Trust Agreement provides that all tax bills that are pledged under the trust must be approved by H. M. Gammack, who was the banker handling the bonds. This approval had not been given. If these tax bills were not in proper form the bank would not accept them and release the cash. The tax bills would then belong to the Mullins Construction Company, and inasmuch as they were not in proper form they do belong to the Mullins Construction Company.” Being asked if the Trust Co. would be willing to turn over the tax bills to the bailiff of the court for sale in partial satisfaction of plaintiff’s judgment against the Construction Co., he replied in the negative, giving as a reason for the reply that “the Construction Co. is in default by reason of delinquent tax bills being held in the trust,” but he did not state any facts showing wherein the Construction Co. was in default. He further testified that certain tax bills, aggregating approximately $35,000 at their face value, were in default, but he could not say whether any default on any tax bill was occasioned by reason of the fact that the amount due thereon had not been paid, or by reason of the fact that, though paid when due, the proceeds had not been remitted to the Trust Co.; and he did not testify that any of the tax bills, securing the bonds of the second series, were in default.

Plaintiff contended at the hearing that, under the undisputed evidence and a proper construction of the trust agreement, the said tax bills, of the aggregate face value of $2,013.76, never became a part of the trust estate in the hands of the Trust Co. for the reason that it had never accepted them, that they remained the property of the Construction Co., and that, hence, they were subject to be taken under the garnishment writ and sold for plaintiff’s benefit.

The court’s finding, appearing in the draft order of February 17, 1926, is in accord with plaintiff’s contention, and is in substance as follows: That, at the time of or after the issuance of the bonds of the second series, an agreement was entered into between the Construction Co. and the Trust Co., as trustee, whereby cash deposited with the trustee might be withdrawn by the former upon its depositing tax bills in proper form with the trustee; that from time to time, after the issuance of said second series of bonds, the Construction Co. deposited additional tax bills with the trustee and received from it cash in exchange therefor ; that on October 8, 1925, the trustee received from the Construction Co. certain .tax bills, amounting to $2,013.76, which “were not in proper form and did not comply with the requirements of the trust agreement and were, therefore, not accepted” by the Trust Co. under the trust; that the same are now in the possession of the Trust Co. and belong to the Construction Co.; and that plaintiff, E. L. Snider, is entitled to their possession in this proceeding.

It is urged by counsel for the Trust Co. that that portion of the judgment, based upon the above-mentioned finding, wherein it is adjudged that said tax bills in the possession of the Trust Co., aggregating $2,013.76, “be turned over and delivered * * * to the bailiff of the Municipal Court to be sold for the use of the plaintiff, ’ ’ is erroneous and should be reversed. Counsel contend in substance (1) that the tax bills in question were not the proper subject of garnishment in a court of law; (2) that, even though they had not been approved in writing by Cammack and the Trust Co. had rightly refused to accept them and allow the Construction Co. to withdraw their equivalent in cash, still they should properly be considered as a part of the trust estate (not subject to garnishment) as additional security to the bondholders, for the reason that default had been made in the payment of other matured tax bills in the hands of the Trust Co.; and (3) that the bondholders were necessary parties to any adjudication affecting their rights or securities under the trust agreement.

We are of the opinion that all of these contentions are without merit. We think that the tax bills clearly were subject to garnishment, and the judgment as to them was fully warranted, under the provisions of section 24 of the G-arnishment Act (Cahill’s St. 1925, ch. 62, H24). It is there provided: “When it shall appear that any garnishee has in his hands, or under his control, any goods, chattels, choses in action or effects, belonging to or which he is bound to deliver to the defendant, with or without condition, the court or justice of the peace may make any and all proper orders in regard to the delivery thereof to the proper officer, and the sale or disposition of the same, and the discharging of any lien thereon, and may authorize the garnishee to sell any such property, or collect any choses in action, and account for the proceeds thereof; * * The evidence is undisputed that the tax bills in question were delivered to the Trust Co. only on condition that in lieu thereof cash in an equivalent amount would be paid to the Construction Co.; that the bills had not been approved by Cammack and otherwise were not in proper form; and that on this account the Trust Co. refused to accept them under the trust agreement as a part of the trust estate and pay the Construction Co. the cash equivalent. Hence, it sufficiently appears that the bills remained and were the property of the Construction Co., though in the possession of the Trust Co., at the time of service of the garnishment writ. And, clearly, the bills were “choses in action.” In Easton v. Board of Review of Peoria County, 183 Ill. 255, 257, it is said: “An evidence of indebtedness, under whatsoever name it may be termed, whether note, bond, bill of exchange or other instrument, and however secured, is a mere chattel personal, included within the term ‘chose in action.’ ” And the holders of the bonds of the second series have no rights in or to the bills in question, entitling them to be heard. The bills, not having been accepted by the Trust Co., never became a part of the trust estate. Furthermore, all bonds of said second series were at the time amply secured by more than the amount (required by the trust agreement) of cash and other tax bills at face value in the hands of the Trust Co., as trustee. And the fact that there may have been default in the payment at maturity of certain other tax bills, in the hands of the Trust Co. as security for the bonds of said second series (concerning which the evidence is uncertain and unsatisfactory) would not justify the Trust Co., as against an attaching creditor of the Construction Co., in retaining in the trust estate the tax bills in question as additional security for said bonds. In section 8 of article IV of the trust agreement it is provided that “in the event that at any time there shall be a default in the payment of principal and/or interest of any special tax bill pledged hereunder, and, any such default shall continue for a period of ninety (90) days, the company will, upon the written demand of the Trustee, substitute for the special tax bill in respect of which such default exists other special tax bills not in default of a face amount and/or cash equal to the face amount of the tax bills so in default, accompanying any such substitute tax bills by the same certificates and opinions as would be required if such substitute tax bills were being made the basis for the issuance of bonds under this Agreement.” It does not appear that, because of any claimed default in payment of any tax bills in the possession of the Trust Co. as security for the bonds of said second series, the Trust Co. had made any written demand on the Construction Co. for any substitutions. Furthermore, under the provisions of said section 8 of article IV, any such claimed default could not have continued for the stipulated period, when the garnishment writ was served on October 9, 1925. The bonds of said series were not issued until July 22, 1925, and none of the tax bills was received by the Trust Co. as security therefor before that date, and, if any default existed as claimed in respect to any tax bill originally deposited as security with the Trust Co., such default had not continued for the stipulated period of 90 days, when the garnishment writ was served.

- Counsel for the Trust Co. further contend that the portion of the judgment in question, wherein the court adjudged that the Trust Co. also was liable as garnishee in the sum of $493.78, is erroneous and should be reversed. This portion of the judgment is based upon the further finding of the court, also contained in said draft order of February 17, 1926, in substance as follows: That, after said trust agreement was executed, the Trust Co. “entered into an arrangement” with the Construction Co., whereby the former agreed to pay to the latter “interest at the rate of 2% per annum on all funds on deposit with it under the trust agreement in excess of $1,000”; that in July, 1925, prior to the institution of the present garnishment suit, the Trust Co. paid to the Construction Co. certain sums on account of interest; that at the times of the service of the writ and the filing of the garnishee’s answers there had accumulated in the Trust Co.’s hands interest to the amount of $493.78; and that this interest money belonged to the Construction Co. and is subject to garnishment in this proceeding and plaintiff is entitled thereto. These findings, in our opinion, are amply sustained by the evidence. In the third answer of the Trust Co., filed January 9,1926, in reply to appropriate interrogatories, it stated that it has a verbal agreement with the Construction Co. “to allow 2% commercial interest to be computed semi-annually on January 1st and July 1st on cash balances on deposit with it as trustee under said trust agreement”; that on July 2, 1925, $613.82 was paid by it to the Construction Co., “covering interest to that date”; that interest has been computed in said trust account from July 1, 1925 to January 1, 1926, amounting to $493.78, which has been entered on the books in said trust account; that said amount of interest, $493.78, “will not be paid to the Construction Co., nor are they entitled to collect or receive the same, unless and until their default under the terms of the trust agreement which has existed since October 1, 1925, has been terminated”; and that “this garnishee will hold such interest as a part of the trust property as long as said default exists.” It thus appeared that, before the garnishee’s third answer was filed, there was due to the Construction Co. from the Trust Co. (under a separate verbal agreement to pay semiannual interest on cash balances, which had previously been acted upon) said sum of $493.78, as interest. As no default on the part of the Construction Co., under the terms of the trust agreement, was shown to have existed, we think it clear that this sum as interest could properly be recovered by plaintiff in this garnishment proceeding. In Ayers v. Metcalf, 39 Ill. 307, 309, it is said: “In actions ecc contractu, the statute has authorized the parties to contract for the payment of interest. And when such a contract has been entered into by parties, like any other lawful agreement, it may be proved by positive or circumstantial evidence. A promise to pay interest may be inferred from the particular mode of dealing between the parties, or from the usages of trade governing the business in which the parties were engaged.” And, under the facts and circumstances in evidence, we are unable to say that this verbal agreement by the Trust Co. to pay interest to the Construction Co. on said cash balances is not supported by a sufficient consideration, as counsel contend.

Our conclusion is that the judgment appealed from should be affirmed in its entirety, and such will be the order.

Affirmed.

Fitch and Barnes, JJ., concur.