text:
    Harry M. Klass, Appellee, v. Isadore Yavitch and Lester Felsen, Appellants.
    Gen. No. 41,049.
    Opinion filed November 29, 1939.
    W. B. Steinberg and Jacob Mogill, of Chicago, for appellants; Morris K. Levinson, of Chicago, of counsel.
    Kamfner & Halligan, of Chicago, for appellee; Edwin A. Halligan and Samuel M. Lanoff, of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from an interlocutory order appointing a receiver. The appointment was made npon petitions, answers and affidavits without the taking of any testimony.

September 22, 1938, the three parties named, as plaintiff and defendants, entered into articles of partnership to operate and control premises located at 755 N. Dearborn street known as the Bice Hotel in Chicago; the premises were under a lease to defendant Yavitch, and the partnership was coterminous with the lease. The agreement provided for the operation of a hotel, recited that Yavitch held one-half interest, plaintiff Klass one-fourth interest and defendant Felsen one-fourth interest in the lease and furnishing's; there was a provision for a division of the profits in these proportions. It was also provided that “all management and control in the operations of the said business shall be in the hands of Isadore Yavitch. ’ ’ There were other provisions with reference to the checking accounts ; that no partner might sell or assign his interest in the partnership without the written consent of the other parties. This agreement was executed by all the parties.

August 15, 1939, plaintiff Klass filed'a complaint to dissolve the partnership. He alleged that although by the agreement each of the partners should have full access to the books, on July 28, 1939, defendants took exclusive possession of the partnership assets and books, refusing plaintiff access thereto. There are allegations that Yavitch had not made certain repairs which he was bound by the terms of the lease to do under pain of forfeit of lease; that one-half of the hotel was vacant and the partnership suffering great losses; that although he has applied to the defendants for them to make a full and fair account in respect to the partnership transactions, they refused to do so. There are other allegations with reference to dealings of plaintiff with defendant Felsen which do not seem to be relevant to the instant question, namely, the propriety of the appointment of a receiver. Plaintiff asked for various relief, including the dissolution of the partnership and an accounting and division of any surplus, and for the appointment of a receiver of the premises.

Defendants filed an answer admitting the formation of the partnership, asserting that they kept proper books of account, denied that they took exclusive possession of the partnership assets and books or refused to allow plaintiff access thereto, and asserted that they are now subject to inspection at any time and at his convenience. Defendants further alleged that by the partnership agreement Yaviteh should have the sole management of the business; that he employed plaintiff as a clerk in the hotel at a fixed weekly salary; that while plaintiff was so employed he permitted his friends and others to occupy rooms in the hotel without payment; that he operated the hotel so that it began to lose business, and Yaviteh was forced to take over management of the property in order to save its asserts. Defendants alleged that all repairs and rehabilitations necessary to be made under the lease were made in accordance with the terms of the lease and that the copartnership is not in default in any of its undertakings. There is an allegation that plaintiff has transferred his interest to third persons with the intent to harass these defendants into purchasing his one-fourth interest at an exhorbitant figure. Defendant Yaviteh further asserted that since he has taken charge of the hotel the income has greatly increased; that since defendants have taken over the management they have increased its occupancy to over 80 per cent.

A supplemental petition was filed on behalf of plaintiff, representing that an audit had been made of the books during the time it was operated by Yaviteh which showed a loss of $2,150 and asserting that the gross income from the hotel under the management of the defendants is approximately $300 less per month than when it was operated by plaintiff. This petition alleged that the business was mismanaged and was insolvent.

Pursuant to rule entered, defendant Yaviteh filed his answer to this supplemental petition, alleging that plaintiff, prior to the time Yaviteh took possession of the property, recklessly incurred many debts and liabilities without regard to the ability of the property to pay the same out of income, and defendant averred that since he has managed the property he has been paying off these debts, as well as current expenses, out of the income. Defendant says that the hotel has been handicapped because the city of Chicago is constructing a subway and has placed a large air compressing machine on Dearborn street directly south of the door of the hotel and that due to the noise and dirt produced by this machine the procuring of new business for the hotel has necessarily been handicapped. Defendant denied that the business was mismanaged and insolvent and was continually going into debt.

An affidavit made by an auditor was filed who said that he had examined the books while the hotel was under the supervision of plaintiff, which showed that if the rent had been paid the deficits would have averaged $230 per month; that under the new management there was an average monthly deficit, caused by the payment of old bills incurred by the previous management ; that without these payments of old bills the three months under the new management would have shown an average monthly profit of $143.

The trial court after considering the petitions, answers and affidavits, appointed a receiver of the partnership assets, including the operation and control of the Rice Hotel, and plaintiff and defendants were ordered to turn over to him all books and effects belonging to the partnership. •

In High on Receivers (4th Ed.) page 6, are some general observations touching the appointment off receivers which should receive consideration. “It is a peremptory measure, whose effect, temporarily at least, is to deprive of Ms property a defendant in possession, before a final judgment or decree is reached by the court determining the rights of the parties. It is therefore not to be exercised doubtingly, but the court must be convinced that the relief is needful, and that it is the appropriate means of securing an appropriate end. And since it is a serious interference with the rights of the citizen, without the verdict of a jury and before a regular hearing, it should be granted only for the prevention of manifest wrong and injury. And because it divests the owner of property of its possession before a final hearing, it is regarded as a severe remedy, not to be adopted save in a clear case, and never unless plaintiff would otherwise be in danger of suffering irreparable loss. And since a receivership is a harsh and costly remedy, interfering seriously with the rights of persons in possession, courts of eqMty exercise extreme caution in the appointment of receivers and withhold the remedy until a proper case has been made therefore.”

On the showing made by the petitions, answers and affidavits we do not discern a state of facts which would authorize the appointment of a receiver. The noise made by the air compressor connected with the building of the subway is a sufficient reason why the hotel would suffer a temporary loss of patronage.

Reduced to its simplest elements the case is one where, under new management, improvement commenced which would have in time taken care of all of the obligations incurred by plaintiff, including current expenses, and would have made the enterprise a profitable one.

47 Corpus Juris 1218, sec. 930, states the general rule as follows:

“The court will refuse to appoint a receiver of partnership property where it is not shown that such appointment is necessary for the protection of property rights or interests of the parties, and that there is danger of loss unless a receiver be appointed. It has been held proper to refuse to appoint a receiver where the partner in possession of the assets is responsible. and the assets are inadequate to bear the expense of a receiver; . . . where defendant has not been guilty of any breach of partnership duty; . . . Where neither of the individual partners nor the firm is insolvent and there is no manifestation of any disposition to defeat creditors or of any purpose on the part of either partner to take advantage of the other, the mere fact that the partners are unable to agree npon an adjustment of the affairs is not a sufficient reason for the appointment of a receiver.”

In Ingram v. Clover Leaf Lumber Co., 331 Mo. 739, 55 S. W. (2d) 295, it was held that where a defendant’s verified answer denied the essential allegations of plaintiff’s petition seeking the appointment of a receiver of a partnership, the appointment of a receiver was erroneous. The opinion in that case further held that mere inability of partners to agree on partnership affairs does not justify the appointment of a receiver and that equity may compel an accounting without the appointment of a receiver. In 53 Corpus Juris 66, sec. 66, it is stated as the well-established rule that where the essential allegations in the complaint for the appointment of a receiver have been denied in a sworn answer, a receiver cannot be appointed unless plaintiff overcomes these denials by proof in support of his pleadings. It should be borne in mind that in the instant case no proof was had to support plaintiff’s averments. The essential allegations were denied by defendants. If evidence should support defendants’ answer the appointment of a receiver would be unnecessary. It was clearly erroneous to appoint a receiver upon the bare allegations of plaintiff which are denied by the defendants in all essential matters.

The order appointing a receiver is therefore reversed.

Reversed.

Matchett, P. J., and O’Connor, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Stone

license: Public Domain

text:
    Clarence Smith, Appellee, v. Floyd Carter and George Carter, Trading as Ozark Express, Appellants.

      Opinion filed November 8, 1939.
    Wilbur C. Schwartz, of St. Louis, Mo., William M. P. Smith, of Edwardsville, and Wheeler, Oehmke & Dunham, of East St. Louis, for appellants.
    Geers & Goodman, of St. Louis, Mo., for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

Plaintiff, Clarence Smith, sustained serious and permanent injuries in a collision between a Buick pickup truck in which he was riding as a guest passenger and a heavily loaded International stake body truck owned by the defendants Floyd Carter and George Carter as copartners and driven by their servant. The collision occurred at night on Highway No. 67 in Madison county. Plaintiff instituted suit charging specific and general negligence. Defendants denied all charges of negligence and a trial was had in the Madison circuit court before a jury resulting in a verdict for $6,000 in favor of plaintiff. The defendants have appealed and rely upon the following alleged errors for reversal:

1. The verdict and judgment are clearly against the manifest weight of the evidence in the case.

2. The court erred in refusing to grant a new trial on the ground that Joseph Voudrie, one of plaintiff’s witnesses, committed perjury in certain material respects.

3. The court erred in refusing to direct a verdict in favor of the defendants.

4. The court erred in excluding certain material spontaneous res gestae exclamations of David Gold-ford, one of defendants’ witnesses.

The collision occurred on a level straight stretch of concrete highway on a clear night. The plaintiff claims that the defendants’ truck bore across the black line and onto plaintiff’s side of the slab and there collided with the car in which plaintiff was a passenger. Defendants claim that the Buick in which plaintiff was riding struck another car in front of defendants ’ truck and thence careened across the highway and then over to defendants’ side of the highway and there collided with defendants’ truck. The evidence on these issues was conflicting. The plaintiff produced two eyewitnesses who corroborated his own testimony and supported his theory that the collision was due to negligent operation of defendants’ truck. The witnesses were subjected to extensive cross-examination. The physical facts, including the condition of the highway at the place of collision and the position and condition of the involved trucks immediately after the collision, do not necessarily lead to a conclusion contrary to the verdict of the jury. The weight to be given to the evidence was for the jury’s determination. The jury found for the plaintiff on the controverted issues. The trial judge who saw and heard the witnesses added his approval by refusing to set the verdict aside. We cannot say that the verdict is so contrary to the weight of the evidence as to require a reversal. The plaintiff was • seriously and permanently injured. Defendants do not.urge that the verdict is excessive. There is nothing in the record to indicate that the verdict was the result of passion or prejudice. “The question submitted to. the jury was purely one of fact for their determination and although we might he inclined to take a different view of the evidence from that entertained by the jury, yet where they have fairly arrived at a verdict without passion or prejudice the verdict in the absence of errors of law must stand.” Green v. Mumper, 138 Ill. 434, 28 N. E. 1075.

The defendants further contend that this court erred in refusing to grant a new trial on the ground that Joseph Youdrie, one of plaintiff’s witnesses, committed perjury in certain material respects. Youdrie testified that he saw the collision; that plaintiff’s Buick was on its side of the road at the time of the collision; and that plaintiff’s car did not collide with another car just prior to collision with defendants’ truck.

. Defendants in support of motion for new trial submitted affidavits of three persons which tend to contradict the testimony of Youdrie. However, they fail to sustain the charge of perjury. They do not show that Youdrie “knowingly and corruptly swore falsely” as to material issues. At most they show that affiants would swear that the collision did not occur in the way Youdrie testified it did and further that Youdrie was not in the position he claimed to have been in at the time of the collision. Other witnesses so contradicted Youdrie at the trial. Defendants, claim in effect that if given a new trial they can produce additional evidence to contradict Youdrie.

“The rule is well settled that when the new evidence tends merely to discredit or impeach another witness it will not satisfy the requirements of the law for a new trial. ” Bemis v. Horner, 165 Ill. 347, 46 N. E. 277.

Two of the witnesses whose affidavits are submitted in support of the motion for new trial were known to defendants at the time of the trial. One had been subpoenaed and was in attendance at the trial, but was not called to testify. The other was known to defendants to be in quarantine at the time of trial, yet they did not request any continuance on account of his absence. The evidence of the third affiant would be merely cumulative. “It cannot be the practice of courts to allow important matters to go to trial and because one party is not satisfied with the results of it, let him go out and try to get facts which will enable him to do better at another trial and rely upon such after ascertained matters as a basis for a new trial. In such case the courts require that the newly discovered evidence shall be material and shall not be cumulative and that due diligence has been exercised to procure it.” Chicago & A. Ry. Co. v. Raidy, 203 Ill. 310, 67 N. E. 783; Graham v. Hagmann, 270 Ill. 252, 110 N. E. 337.

Defendants contend that the motion for directed verdict should have been allowed because plaintiff failed to show that he was in the exercise of due care. Plaintiff was a guest passenger and defendant argues that it was his duty to warn or caution the driver of his car against the danger of collision which must have been apparent to plaintiff. Due care may be shown by direct evidence or- by facts and circumstances which lead to a reasonable inference of due care. “A passenger in an auto need not warn the driver of the approach of other autos which the driver sees.” (Hagen v. Bailus, 283 Ill. App. 249.) To the same effect are Schultz v. Live Stock Nat. Bank of Chicago, 278 Ill. App. 623; St. Clair Nat. Bank v. Monaghan, 256 Ill. App. 471, and Greene v. Citro, 298 Ill. App. 25, 18 N. E. (2d) 237. In Hoffman v. Yellow Gab Co., 238 Ill. App. 269 the passenger failed to warn the driver of the approach of the other auto. It was held thqt it must be presumed that the driver saw the approaching auto but even if the driver did not it was a question of fact to be determined by the jury whether plaintiff was guilty of contributory negligence. We cannot say that the jury was not justified in finding that plaintiff was in the exercise of due care.

It is urged also that the court erred in excluding certain material spontaneous res gestae exclamations of David Goldford, one of the defendants’ witnesses. One of the factual issues in this case was whether the car in which plaintiff was riding collided with David Goldford’s car immediately before the collision with the defendants’ truck. Defendants’ witness Larch attempted to relate that immediately after the collision David Goldford rushed up to the scene and exclaimed that the car (of plaintiff) hit him and witness Rutledge attempted to testify that at about the same time and place Goldford said: “Did you see what those guys (plaintiff and associates) did to me?” Objections to these items of testimony were sustained. That ruling, however, could not have been prejudicial because David Goldford was -a witness at the trial and testified fully as to what “those guys did to him” and that they hit him. It is not thought that proof that he previously made the same statements as a part of the res gestae would so strengthen his testimony at the trial as to probably change the result.

We do not find any errors herein which require a reversal. The judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    Aurelia Wyckoff, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Opinion filed November 8, 1939.
    Kramer, Campbell, Costello & Weichert and Norman J. Gundlach, all of East St. Louis, for appellant.
    Whitnel, Browning, Listeman & Walker, of East St. Louis, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an appeal from judgment of the city court of the city of East St. Louis. The case was tried before the court without a jury and judgment was rendered for plaintiff in the sum of $147.99.

Appellee brought suit herein for monthly disability benefits claimed to be due under the terms and provisions of a group life insurance policy and certificate issued thereunder by appellant company upon employees of Armour & Company. ¡

The appellee was 34 years of age, has been married for 11 years and had no children. She was employed by Armour & Company in its St. Louis plant since February, 1934, where she was steadily engaged in tying sausage into bundles. Early in November, 1937, appellee became ill and placed herself under treatment of Dr. Bihss of East St. Louis, where she resided, and on November 10 she became sick and quit work. At the time of her first call to Dr. Bihss she was complaining of coughing, loss of weight and feeling tired in the afternoon. Dr. Bihss examined her with a stethoscope and suspected that she had crepitant rales in the right upper lobe and determined that she had minimal pulmonary tuberculosis in the right upper lobe. Dr. Bihss ordered the appellee to bed, put her on a high caloric diet and high vitamin diet, ordered her to rest and did not allow her to do any housework at all for at least three months.

The pertinent portions of the insurance contract under which appellee seeks to recover provide for specific benefits “in the case of any Employee who furnishes due proof to the Company, that, while insured thereunder and prior to his 60th birthday, he has become totally and permanently disabled, as a result of bodily injury or disease, so as to be prevented thereby from engaging in any occupation and performing any work for wage or profit. ’ ’

“Six months after receipt of such proof, the Company shall commence to pay to such Employee or, in case of insanity, as provided in said Group Life policy, in lieu of the payment of the insurance under the said Group Life policy at his death, equal instalments depending upon the amount of insurance in force on the life of such Employee at the date of receipt of such proof or at the date of termination of the insurance, if proof be received later, as shown in the following table:”

The contract further provides: “Such instalment payments shall be made only during the continuance of such disability,” and that “in the event of the recovery of the Employee from such disability before all instalments have been paid, further payments shall cease.”

The evidence shows that appellee became sick and quit work on November 10, 1937. She stated to her doctor at that time that she was weak and lost weight, that her weight previously was 156 pounds and now was 127 pounds. She testified she ran a temperature of 99.2 and after November, 1937, was confined to bed for about three months. She further stated that she could not do the kind of work at the time of trial that she did at the time she got the insurance policy. She also stated thát at times she spits blood, that the first two months, starting the 10th of November, 1937, she was in bed but since that time has been up and down. The evidence further shows that appellee’s physician, Dr. Bihss, made two tuberculin tests, the last being in May, 1938, and that each of these tests showed positive. Her doctor further testified that he had treated her constantly since her visit to his office, that he had her X-rayed on March 6, 1938, and that the X-ray examination disclosed no evidence of any present pathology, and that any abnormalcy had disappeared. He again had X-rays taken in May, 1938, which disclosed no active tuberculosis. He did, however, continue to treat her with the rest cure at home; that it was his opinion that the appellee at the time of trial had tuberculosis of an arrested type. He stated, however, that she was not well enough to do her regular household duties or factory work at the time of trial, but that he was permitting her to do light housework and that she was getting better and that in all probability she would be completely cured within five or six months.

There appears to be no question from the record that sometime during her life appellee had tuberculosis, and from the testimony of her physician, Dr. Bihss, who attended her constantly and had adequate opportunity to examine her, she had minimal pulmonary tuberculosis in November, 1937, and was totally disabled for a period of approximately three months, being confined in bed under the rest cure prescribed by Dr. Bihss.

By the terms of the policy it was incumbent upon the appellee to allege and prove that she was “totally and permanently disabled.” Furthermore, the policy provided that “six months after such proof, the company shall commence to pay.” The certificate also provided that the monthly benefits “shall be made only during the continuance of such disability and that in the event of recovery from such disability before all instalments have been paid, further payments should cease.”

From the evidence it appears, clear enough, that the appellee was totally disabled for at least three months, but the question whether she was also permanently disabled is another matter. Her own doctor on March 23, 1938, at her request, sent in a report to the defendant that the insured “was not at that time still unable to engage in work, occupation or business,” and on cross-examination, that by “not wholly not able to work” he meant “she was able to do light housework.” On May 31, 1938, appellee’s physician reported to defendant, on her behalf, that the disease was not active at that time.

As stated above, her own doctor was in a position to observe and watch the plaintiff’s progress. He stated that he considered it perfectly all right for plaintiff in her condition to do light work around the house, and that by light work he meant light housework. He further stated that there were no active tuberculosis lesions, and in view of plaintiff’s progress that in a period not to exceed five months she would be perfectly normal in all respects. The appellee’s doctor’s opinion as to her progress toward recovery was substantiated by the testimony of Dr. Ellis, the doctor for Armour & Company and appellant, who examined appellee in May and September, and just before trial, with stethoscope and by X-ray diagnosis which showed no evidence of tuberculosis. In view of the plaintiff’s own doctor’s testimony, substantiated by the testimony of Dr. Ellis and that of the various X-ray diagnoses made, we are unable to agree that the plaintiff’s ailment was permanent within the meaning of the contract.

From the record it appears that the plaintiff’s doctor was of the opinion that the tuberculosis was arrested and plaintiff was on the road to recovery, as indicated in his report to the defendant in March, 1938. Furthermore, it appears that in March, May and July of 1938, the plaintiff’s doctor reported to the defendant that there was no evidence of tuberculosis and further reported on at least one occasion that the plaintiff was not totally disabled.

It has been held in Buffo v. Metropolitan Life Ins. Co., 277 Ill. App. 366, that the policy under consideration is a total disability policy as applied to all kinds of endeavor and is not an occupational policy. We are of the opinion that the ruling in the Bu,ffo case is correct and that the plaintiff’s ability in this case to perform light housekeeping within the six-month “waiting period” as set forth in the insurance contract would preclude her from claiming total disability thereunder.

It is appellee’s contention that Ginsburg v. Prudential Ins. Co., 294 Ill. App. 324, is controlling in this case. This we cannot agree, as it appears in the Ginsburg case that no recovery was allowed after the insured was able to resume work even though for an hour or two each day. In the instant case the appellee was able and was permitted by her doctor to engage in light housework during the six-month period of waifi ing, as provided by the contract after first proofs of claim were submitted to the defendant.

Judgment of the city court of Bast St. Louis is reversed.

Reversed.


text:
    Tony Josate, Appellant, v. Frank Mack, Appellee.
    Opinion filed November 8, 1939.

      Philip G. Listeman, Louis Beasley and Edward C. Zulley, all of East St. Louis, for appellant.
    Manuel M. Wiseman, of Alton, Simon Keller-man III and Jesse E. Brown, both of Edwardsville, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an appeal from an order granting a new trial in an action brought by Tony Josate against Frank Mack, a junk dealer, to recover actual and punitive damages for secondhand coal mining machinery purchased by plaintiff in 1928 alleged to have been stolen by a minor boy and sold to defendant. The plaintiff relied upon chapter 38, Criminal Code, sec. 243 (Ill. Rev. Stat. 1937, p. 1163 [Jones Ill. Stats. Ann. 37.455]). The cause was tried by a jury, who found the defendant guilty and assessed the plaintiff’s damages at $900. Defendant moved for a new trial, which was granted, and plaintiff has appealed from such order.

The motion for new trial sets forth some 12 counts why the verdict should be set aside, among which are that the defendant did not receive a fair and impartial trial because of improper remarks of one of the attorneys for plaintiff during the taking of testimony and, in particular, injecting testimony with reference to the payment of a fine of $500 by the defendant for receiving stolen property, which had no connection whatsoever with the facts in this case, and that attempts by plaintiff to state values were so spurious and unreasonable that a verdict should not be permitted to stand on such testimony.

Plaintiff in his brief states that he is unable to advise us as to the reasons that influenced the trial court in granting the motions for new trial and in his brief considers all the grounds, set forth in the motion for new trial.

As we read this record there are at least two valid grounds urged for new trial, to wit, calling of defendant as a witness for the plaintiff and interrogating him about an alleged fine that he had paid, wholly disconnected from this case, as well as offering the testimony of one Tony Miller relative to transactions with defendant over scrap iron some four years ago totally unconnected with the instant case. These were palpable errors.

It has been repeatedly held that negotiations for new trial are addressed to the sound judgment of the trial judge and his action thereon will not be reversed except in case of clear abuse of such discretion, which must be affirmatively shown. Couch v. Southern Ry. Co., 294 Ill. App. 490, and cases therein cited.

Necessarily, the trial court should have the discretion to decide with finality whether a new trial is necessary in the interests of justice, as it is in his power to observe the multiplicity of situations as they arise during the progress of the trial and is in a better position to weigh the effect upon the jury and to judge whether or not substantial justice had been done.

The order of the circuit court of Madison county granting to defendant a new trial is affirmed. »

Affirmed.


text:
    Elmer Freiner, Appellee, v. William Oscar Lane et al., Appellants.

      Opinion filed November 8, 1939.
    Joe Crain, of Mound City, and Wilbourn & Gillespie, of Cairo, for appellants.
    Dewey & Cummins, of Cairo, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

A chronological statement of the transactions out of which this litigation grows seems necessary to a proper understanding of the questions presented.

On January 21,1929, William Oscar Lane and Georgia Anna Lane were indebted to Holly C. Marchildon in the sum of $10,425 and in evidence thereof executed their note for that amount payable to said Marchildon, due five years after date with interest at 6 per cent, together with five interest notes, each in the amount of $625.50, and to secure the payment of these notes the Lanes on the same day executed, acknowledged and delivered to Marchildon a mortgage conveying 360 acres of land in Alexander county, Illinois.

On March 2, 1929, Holly C. Marchildon purchased 350 shares of stock of the Universal Life Insurance Company at $30 a share and transferred the Lane notes and some cash in payment for the same. It does not appear that he ever executed an assignment of the mortgage, although it does appear that the notes, indorsed by Marchildon “without recourse,” and the mortgage were delivered to Universal Life Insurance Company. During the year 1929 Marchildon attended a meeting of the insurance company in St. Louis and was elected a director.

On December 31, 1930, the Universal Life Insurance Company consolidated and merged with the First National Life Insurance Company of America, and on August 18, 1931, all of the property and assets of the First National Life Insurance Company of America were purchased by Mississippi Valley Life Insurance Company, and the Lane notes and mortgage were among the assets so purchased.

From May 2, 1929, to September 27, 1932, the Lane notes and mortgage were on deposit with the superintendent of insurance of the State of' Missouri. On April 28, 1932, Joseph B. Thompson, superintendent of insurance of the State of Missouri, and William E. Caulfield, of St. Louis, Missouri, were appointed receivers of the Mississippi Valley Life Insurance Company.

On December 21, 1933, the circuit court of St. Louis, which had jurisdiction of this receivership, authorized the receivers to indorse, assign and deliver the Lane notes and mortgage to C. B. Meredith upon payment of $850 and the assumption of taxes in the amount of $1,130 due on the Alexander county land covered by said mortgage. In accordance with this court order the notes and mortgage were delivered to C. B. Meredith and an assignment of the mortgage was executed in the name of Mississippi Valley Life Insurance Company, R. E. O’Malley and William E. Caulfield, receivers, and William E. Caulfield. Apparently William E. Caulfield executed the same in the name of the insurance company and both receivers.

No payments were ever made on said notes except two small payments in 1930 and one small payment in 1931, aggregating $139.98, which were applied to the interest due on said notes.

On September 10, 1932, C. A. Marchildon, son of Holly C. Marchildon, was appointed by the circuit court of Alexander county, Illinois, receiver of the business of Holly C. Marchildon and appears to have taken a personal and active interest in the transactions hereinafter set out.

On February 10, 1934, Mr. Meredith went to the office of H. C. Marchildon, in Thebes, Illinois, and the latter learned that Mr. Meredith had bought the notes and mortgage.

On the same day C. A. Marchildon had a conversation with the Lanes and they agreed to give a deed to the farm in consideration of a release of the mortgage and a lease of the farm for one year. The Lanes thereupon executed a deed conveying the land to Emma L. Marchildon, wife of Holly C. Marchildon and mother of C. A. Marchildon, and the grantee executed a lease of the farm land to the Lanes for the period of one year.

On the same day Holly C. Marchildon executed a release of the mortgage and these documents were filed for record on February 10, 1934.

On February 13, 1934, C. A. Marchildon negotiated a sale of this land to Kenneth R. Spillman for consideration of $1,000. The grantee paid $100 cash and “was to pay the balance as he got it.”

On January 5,1935, C. B. Meredith sold and assigned the Lane notes and mortgage to Elmer Freiner foi $1,050 and on the 8th of January, 1935, the assignment of the notes and mortgage from the receiver to Meredith and the assignment from Meredith to Freiner were filed for record in Alexander county.

On June 22, 1935, the assignee Elmer Freiner brought this suit in the circuit court of Alexander county to foreclose the mortgage given by the Lanes to Holly C. Marchildon and to set aside the release executed by H. C. Marchildon. He made William Oscar Lane, Georgia Anna Lane, Holly C. Marchildon, Emma L. Marchildon and Kenneth R. Spillman defendants.

The defendant H. 0. Marchildon answered denying that he transferred the notes to the Universal Life Insurance Company for a valuable consideration and alleging that the assignments were without any consideration and were for worthless stock and that the assignments were procured by the unlawful contrivances and fraudulent misrepresentations of the agents of the Universal Insurance Company; that a short time thereafter the company was placed in the hands of a receiver and at the time of the alleged assignments the stock had no value and for that reason the alleged assignments were without consideration, fraudulent and void. The defendant Spillman made a similar answer and in addition alleged that he purchased the property in good faith without notice and for a valuable consideration. He further alleged that the plaintiff, knowing that the mortgage was not assigned of record, is guilty of laches in delaying his prosecution of his purported claim. Later, on July 30,1937, H. C. Marchildon amended his answer and alleged further that the sale of the stock of the insurance company to him was void because in violation of the Illinois Securities Law and tendered the stock into court. The plaintiff replied, pleading that the defense alleged in the defendant’s answer was barred by laches and the statute of limitation. The master took proofs and filed them, but did not make any findings or recommendations and the cause was heard by the court on the proofs.

The court found the equities in favor of the plaintiff, but found also that the defendant Spillman has an equitable interest in the premises to the extent of $100 which the plaintiff had consented and agreed to pay to said defendant, and a decree of foreclosure and sale was entered.

Defendants H. 0. Marchildon and K. R. Spillman have appealed from this decree and they rely upon the following errors for a reversal:

1. The trial court erred in not dismissing plaintiff’s bill for foreclosure for want of equity.

2. The trial court erred in holding the plaintiff was entitled to foreclosure of his mortgage after the lands described therein had been transferred to the defendant Spillman, who was a bona fide purchaser without notice.

3. The trial court erred in holding the plaintiff was the holder in due course without notice of the mortgage and notes involved in this suit.

4. The trial court erred in not holding the consideration failed for the sale of said stock to Holly C. Marchildon by the Universal Life Insurance Company, and that he had not elected to rescind said sale within five years after it was consummated.

5. The trial court erred in not holding the sale of the stock and the transfer of the mortgage and notes was in violation of the Illinois Securities Law and therefore void at the election of Holly C. Marchildon.

6. The trial court erred in not holding that when Elmer Freiner, the plaintiff, purchased the notes and mortgage, having both constructive and actual notice that the property covered by said mortgage was transferred to K. E. Spillman, said purchase of the mortgage and notes was void as against public policy.

The defense of H. C. Marchildon is founded upon the claim that the transfer of the Lane notes and mortgage by him to the Universal Life Insurance Company was voidable because the notes were assigned as consideration for the purchase of stock in the Universal Life Insurance Company at a time when such stock was not qualified under the Illinois Securities Law for sale in Illinois, and that he therefore had the right to rescind the same and thus regain title to the notes and mortgage; that he did rescind prior to February 10, 1934, and that therefore he had the right to release the mortgage as he did on February 10, 1934.

Mr. Marchildon claims that he elected to rescind the transfer of the notes and mortgage to the insurance company three or four months before he executed the release.

The evidence discloses that Marchildon started a suit on January 2, 1934, against the Lanes, who were the makers of the notes and mortgage, and C. B. Meredith, the then holder of the notes. Apparently this suit was settled by the Lanes by giving a deed conveying the premises to Emma L. Marchildon, wife of H. C. Marchildon, and by the execution of the release of the mortgage by H. 0. Marchildon. Although 0. B. Meredith was a party to this suit, there is no proof that he was served with process.

There is no proof that H. C. Marchildon ever did anything further to effectuate his alleged election to rescind the purchase of the insurance company’s stock until he filed his amended answer in the case now under consideration on July 30,1937. There is no proof that any notice of an election to rescind was ever given to the insurance company or to the plaintiff herein or to his predecessors in title prior to the filing of the amended answer in 1937. “As a general rule an affirmative act on the part of a person desiring to rescind is necessary, it being necessary also that notice of such intention be given to the adverse party.” 13 C. J. 618.

The amended answer, setting up as a defense to the foreclosure proceedings that the transfer of the notes in exchange for stock in the insurance company was voidable because of the failure of the insurance company to qualify its stock under the Illinois Securities Law, was filed more than five years after the consummation of the purchase of the stock. We believe the claim of Mr. Marchildon that his purchase of the stock was voidable as in violation of the Illinois Securities Law was barred by the terms of the act itself, which provides: “All prosecutions and all civil actions to recover money or for other purposes under this Act, or based upon any provision of this Act must be commenced within five years after the commission of the act complained of.” [Illinois Rev. Stat. 1937, ch. 121½, § 135] Jones Ill. Stats. Ann. 13.51; Hoffman v. Gillett, 250 Ill. App. 492; Lipcovitz v. Warren Printing Co., 249 Ill. App. 368.

H. 0. Marchildon was made a party to this complaint to foreclose and the relief demanded of him was that the release deed from him to the Lanes he set aside and decreed null and void as against the plaintiff. In this suit by an assignee of notes and mortgage against the makers to foreclose the mortgage and against the original mortgagee to cancel a release executed by him after he had assigned the notes and mortgage, the original mortgagee injects the claim that his assignment of the notes was voidable because the consideration therefor was the purchase of stock which was sold in violation of the Illinois Securities Law. The plaintiff here purchased the notes in question after maturity and therefore took them subject to existing equities between the maker and the payee, but he should not be charged with equities existing betwen intermediate indorsers. It is well-settled that latent equities between intermediate parties cannot be set up as against a purchaser after maturity. Wolford v. Rusk, 145 Ill. App. 405; Silverman v. Bullock, 98 Ill. 11.

The assignee of a mortgage takes it subject only to equities existing in favor of the mortgagor as against the assignee and not subject to latent equities in favor of third persons in the subject involved in the assignment of which he had no notice. Silverman v. Bulloch, 98 Ill. 11; Himrod v. Gilman, 147 Ill. 293; Humble v. Curtis, 160 Ill. 193; Millihin Trust Co. v. Gregory, 292 Ill. App. 28.

The equities here involved did not exist in favor of the Lanes, the mortgagors, but are claimed by the original mortgagee, Marchildon, against his assignee, Universal Life Insurance Company. The language used in Millihin Trust Co. v. Gregory, supra, is appropriate: “The equities here involved did not exist in favor of the mortgagor as against the assignor, and for that reason the assignee of the notes and trust deed was not bound to inquire of third persons whether they had any equities, and is presumed to take without notice of any such equities and free from them.”

We believe that plaintiff here should not be deprived of his right to foreclose by reason of any equities in favor of the mortgagee and against the plaintiff’s remote assignor. At the time of the attempted release by Marchildon he had assigned his interest in the notes and mortgage and had not regained title or ownership in any legal way. As to plaintiff the release of the mortgage by Marchildon is ineffective and should be set aside.

It is claimed that plaintiff did not acquire good title to the notes and mortgage because the assignment by the receivers of the insurance company was not executed and acknowledged by both receivers. It appears that the assignment in question was made pursuant to an order of a court having jurisdiction of the matter and that it was executed by one of the receivers in the name of the insurance company and both receivers, and the acknowledgment was of the one receiver who signed it and apparently was of his individual rather than his official signature. It has been held that a receiver’s assignment signed by the individual names of the receivers without official designation is not defective as not being an assignment by receivers as such. (Island Gun Club v. National Surety Co., 101 Wash. 185.) This would be true especially where the assignment is made pursuant to authority of a court having jurisdiction. It appears that the assignment was made to the person and at the price ordered by the court. The assignment was sufficiently executed.

Plaintiff was found to have agreed to pay K. R. Spillman the $100 which the latter had paid down on the purchase price of the land. That would be equitable and under our view of the evidence and the law Spillman would not be entitled to more relief than being made whole. We hold that the release of the mortgage by Marchildon, the deed from the Lanes to Emma Marchildon, and the deed from the latter to Spillman were all fraudulent as against the rights of the plaintiff. It is not insisted that Spillman participated in any actual fraud and he, therefore, should be reimbursed.

We have considered other questions raised, but are of the opinion that the points we have discussed are decisive of all the issues. The decree of the chancellor seems to be just and correct and the same is affirmed.

Decree affirmed.


text:
    Margaret Harned, Appellee, v. William Tippett, Appellant.

      Opinion filed November 8, 1939.
    Rehearing denied December 15, 1939.
    Pope & Driemeyer, of East St. Louis, for appellant.
    John M. Karns and Harold J. Bandy, both of East St. Louis, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

Margaret Harned, plaintiff appellee, brought suit in the city court of East St. Louis agianst William Tippett, defendant appellant, charging in two counts that while she was riding as a guest in the said appellant’s automobile he was guilty of wanton and wilful misconduct which resulted in serious bodily injury to her. The complaint charges among other things that the appellant deliberately, wilfully and wantonly drove his automobile at a high rate of speed, to wit, the speed of 60 miles an hour, without exercising any regard for plaintiff’s safety and without keeping the automobile under such reasonable control that he could stop or turn the same to avoid colliding with other vehicles, and that the injury by which appellee was damaged was the result of the defendant’s wilful and wanton conduct in so driving and in refusing to listen to her protestations and in refusing to give due regard for the traffic and the right of the way at the time and place of the collision. The allegations of the petition were denied by the appellant. A trial was had by a jury which resulted in a verdict and judgment in favor of plaintiff in the sum of $4,850. Motion for new trial and for judgment notwithstanding the verdict were denied by the trial court and appellant has appealed here, and he assigns as errors that the court refused to give judgment notwithstanding the verdict, that the verdict and judgment are contrary to the law and the evidence, the court erred in overruling defendant’s motion for a new trial and in giving certain instructions; also it is claimed that the court erred in admitting improper testimony as to damages, but that assignment not having been argued, it is held to be waived.

While this appeal was pending a petition was presented to one of the judges in vacation, suggesting that Margaret Harned, plaintiff appellee, had died, and asking that Max Harned, her administrator be substituted as plaintiff appellee in her stead. This motion was allowed and the substitution was made.

As we view this record the matter presented was a pure question of fact for the jury, whether defendant appellant’s conduct was such as to amount to wanton and wilful conduct within the meaning of the law. A jury found that it was. It is very earnestly argued that such finding was wrong, that it was against the manifest weight of the evidence, and that the court should have held as a matter of law that defendant appellant was not guilty of wilful and wanton conduct.

The jury had evidence submitted to it that the car in which both parties were riding approached a paved overhead viaduct, that on either side of said viaduct was a factory; that a large number of cars were parked on the west side thereof, the car in which the parties were riding traveling south; that just at the north entrance to this viaduct there was a side road leading to one or both of the factories, that as the defendant appellant drove his car into this situation, two trucks were coming towards him on the opposite side of the slab. These trucks and defendant appellant’s car were to meet, obviously, very close to the north entrance to the factory. One of the cars did turn into the side road. The other first started to turn to the left, and at this time defendant appellant’s car was about 75 yards therefrom ; it started to turn to the right around the first truck and instead of going on, suddenly turned to the left across the line in which defendant appellant was driving his car. Plaintiff appellee remonstrated with defendant about the manner in which he was driving. She says he was driving at the rate of 60 miles an hour. Defendant denied this and placed it at 45> and other witnesses placed the rate of speed of defendant appellant’s car at 45 miles an hour. Defendant himself said that he made no effort to stop; although his brakes were in good shape he did not use them. Plaintiff appellee called out to him and warned him of the danger, so she says, and he laughed at her and proceeded on at the same rate of speed. It is obvious that the place was a place of danger. It is equally obvious that defendant appellant acted without regard to consequences.

Under this state of facts we are asked to hold, and the trial court is criticized for not holding, as a matter of law, that defendant appellant was not guilty of wilful and wanton conduct.

It is not always easy to differentiate between what is negligence and what is wilful and wanton conduct, but here was obviously a place of danger; the very circumstance made it so. Any careful driver approaching the situation which this car approached would have made some effort to have it under control so as to meet whatever circumstance happened. This defendant made no such effort. On the contrary the evidence shows he laughed at the protestations of the plaintiff appellee. The presence of those two trucks in the place they were, in our judgment, would put any reasonable driver on notice of danger.

It is said that there was no time to stop, and that there should be taken into consideration defendant appellant’s reaction to the situation. There is not much to base his reaction upon, because the evidence shows he made no effort. He should have been driving his car, under the circumstances, at a rate of speed and under such control, as that his reaction or his reaction time would not have been important.

We cannot say that the court erred in its denial of the peremptory instruction or in its denial of the motion for judgment notwithstanding the verdict. Neither can we say that the verdict is against the manifest weight of the evidence.

The instructions complained of we have already approved in Burke v. Molloy, 294 Ill. App. 442. We see no reason for changing our mind as to these instructions in this case. The judgment of the city court is affirmed.

Judgment affirmed.


text:
    Oscar Miles, Appellee, v. American Steel Foundries, Appellant.

      Opinion filed November 8, 1939.
    Wheeler, Oehmke & Dunham, of East St. Louis, for appellant; E. Fred Gerold, Jr., of East St. Louis, of counsel.
    Mc Glynn & Mc Glynn, of East St. Louis, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This suit is predicated upon an amended complaint of three counts and three additional counts numbered 4, 5 and 6. The first count alleges that defendant was operating a locomotive engine and train of cars across Broadway in the city of East St. Louis; that plaintiff was driving his automobile eastward on said Broadway near its intersection with Twentieth street about 12:30 in the morning and was using due care and caution for his safety; that said cars were low built cars, three feet high above the ground and were not easily discernible or visible; that their presence could not be ascertained by plaintiff until he was within eight feet of them; that Broadway is one of the principal streets in East St. Louis and is heavily traveled by automobile vehicles, of all of which defendant had knowledge; that defendant shoved its train of cars into said avenue so that it constituted an obstruction across said street; that plaintiff, driving his automobile in an easterly direction on said street was unable to ascertain or discover the presence of the railroad cars until within eight feet of them; that he was unable to bring his automobile to a stop before it ran against them. The count alleges a collision between Ms car and the railroad cars and damages to the plaintiff.

The second count alleges that defendant had shoved its railroad cars into Broadway and that they failed to give any warning or notice of the movement of the train upon and across said street, and of the obstruction thereof. The count alleges practically the same as to the inability of plaintiff to see the car ;■ — the collision and damages.

Count three alleges that defendant had shoved its train of cars into Broadway so that they constituted an obstruction across the street; that while so obstructing said avenue defendant failed to ring a bell or blow a whistle or use any other means to warn plaintiff of said obstruction. This count contains substantially the same allegations as to the inability of plaintiff to ascertain or discover the presence of the railroad cars until within eight feet of the track, collision and damages.

Defendant answered these counts by admitting certain of the facts, like the control and management of the train, the low built cars and so forth; but denies that the cars were not easily discernible or that their presence could not be ascertained by plaintiff until within eight feet thereof, and avers that the cars were visible for a great distance. It admits that on the day of the accident its engine was pushing cars into its plant across the street so that the cars temporarily obstructed traffic thereon; denies that the plaintiff in the exercise of ordinary care was unable to discover the presence of the railroad cars on said crossing as alleged.

As to the second count defendant denies plaintiff was in the exercise of due care for his own safety; that he was unable to discover the presence of the train, and so forth; admits the collision.

Answering the third count defendant denies that it failed to ring a bell or blow a whistle, or in the alternative it avers that the omission of both or either of said signals was not the proximate cause of the collision, and denies negligence, and alleges a failure of due care on part of the plaintiff.

Of the additional counts, count four alleges the statute of the State of Illinois providing that every railroad have a bell of at least 30 pounds weight and a steam whistle on each locomotive, causing the same to be rung or whistled at least 80 rods from the place where the railroad crosses any public highway, the same to be kept ringing and so forth. It then alleges that defendant wilfully, wantonly and negligently in violation of the said statute failed to blow a whistle or ring a bell before entering upon the crossing and so forth, and that as a proximate result thereof plaintiff was injured.

Count five alleges that the defendant wilfully, wantonly and negligently caused its train of low built cars to be shoved onto said street and wilfully and wantonly and negligently to obstruct said street and that because thereof plaintiff was injured.

Count six alleges defendant wilfully, wantonly and negligently caused its train of low built cars to be shoved into Broadway and wilfully and wantonly and negligently to obstruct said street; that when plaintiff was within eight feet of the train defendant wilfully, wantonly and negligently caused the train of cars suddenly to be moved across the said street and because thereof the collision.

Defendant filed its amended motion to dismiss the additional counts alleging that the counts failed to state a cause of action; failed to allege any facts showing the existence of a duty on defendant’s part to the plaintiff at the time and place of the accident; that the counts were duplicitous in that both wilful and wanton misconduct and negligence alleged in each failed to show whether predicated on negligence or wilful and wanton misconduct; that the count consisted almost entirely of conclusions of the pleader; that they failed to set forth sufficient facts to sustain a count predicated upon wilful and wanton misconduct and that the statute invoked was inapplicable. This motion was denied and defendant excepted.

Thereafter, answering count four defendant admitted the existence of the statute, but denied the application of the statute to the conditions existing at the time of the accident; denied the defendant wilfully, wantonly and negligently failed to blow a whistle or - ring a bell and denied any wilful misconduct.

As to count five defendant denied that it wilfully and wantonly caused its train of cars to be shoved into the street; denied that it wilfully and wantonly obstructed the street and denied that any damage to plaintiff was the result of wilful or wanton misconduct on its part.

Count six was met by certain denials on material facts by the defendant, and as a further alternative defense to all additional counts the defendant averred that if it could be said to be guilty of wilful and wanton misconduct in the premises that plaintiff was also guilty of wilful and wanton misconduct which contributed as the proximate cause of his injuries, stating specifically wherein plaintiff was guilty of such wanton misconduct.

Plaintiff filed his replication to defendant’s answer to the additional counts and denied wilful and wanton conduct.

The law that one cannot recover for driving his automobile into a train standing across a crossing, except under extraordinary or unusual circumstances is so well settled in this country, and particularly in this State, that it would seem to admit of little or no further exposition. There were no such circumstances in this case. The plaintiff was driving east on Broadway over a road that he had traveled before and knew. He came to two lines of the Southern Railroad. They were marked by a very large arm and sign. Around them there were lights. The west track of defendant was just a short distance, measured in feet, on east of this railroad and it also bore a sign that there was a railroad. There were lights in three different spots in and around the two railroad tracks, one large light almost directly over the crossing where the collision in this case occurred. The engine was facing the cars that were across the street with a large headlight burning, throwing its light down on the cars which stood across the track. The night was not unusual. There was no fog or mist or anything of the kind to deter the plaintiff from seeing if he had looked. He had his bright lights on. In addition to the light which must have been sufficient for any reasonable person to have seen the train there was the train itself across the track, a positive warning to plaintiff that he could not proceed. Certainly plaintiff could not recover under the first three counts of his complaint which allege ordinary negligence on the part of defendant, and due care on the part of himself. (Cash v. New York Cent. R. Co., 294 Ill. App. 389; Overstreet v. Illinois Power & Light Corp., 356 Ill. 378; Coleman v. Chicago, B. & Q. R. Co., 287 Ill. App. 483; Scruggs v. Baltimore & O. R. Co., 287 Ill. App. 310; Northern Pac. Ry. Co. v. Bacon, 91 F. (2d) 173.)

As to the first of the additional counts, which is numbered four, plaintiff has undertaken to show that because there was no whistle blown and bell rung in accordance with the statute in proper cases, that there was an act of wilful and wanton negligence on the part of the defendant. This statute is wholly inapplicable to a condition such as existed in this case, and even if it were applicable our Supreme Court held in Provenzano v. Illinois Cent. R. Co., 357 Ill. 192 that even in a case where the statute is applicable failure to ring the bell or blow the whistle would be nothing more than an act of negligence. The defendant kept this train of cars in question across this crossing only about three minutes altogether, as shown by the evidence. This could not be said to be an unreasonable time, even if there had been an allegation in the counts that it was kept there for an unreasonable time.

In 52 Corpus Juris 189, sec. 1721, it is said, “So in general a railroad company has the right to stop its train or leave its cars at a public crossing at a reasonable time and for a proper purpose. It is not chargeable with negligence for so doing and is not liable for injuries caused by such obstruction,” and in Chicago, R. I. & P. R. Co. v. Bednorz, 57 Ill. App. 309, the court said at page 310, “So long as railways cross streets upon the same level, temporary stoppages of the use of the streets at the crossings are inevitable' and are recognized by law as such. The fact, therefore, that the crossing was so temporarily blocked does not affect or extend the liability of the appellant railroad for an accident happening upon its right of way.”

The conduct of defendant under the circumstances detailed in this record was not negligence. Certainly it was not wilful and wanton conduct on its part.

The trial court erred in not taking this case from the jury and by reason of such error this judgment is reversed. This case is remanded to the city court of Bast St. Louis with instructions to that court to render judgment against the plaintiff for costs notwithstanding the verdict.

Reversed and remanded with directions.


text:
    J. L. Gardenhire, Trading as J. L. Gardenhire Drilling Company, Appellee, v. O. L. Ray and A. W. Gerson, Defendants. A. W. Gerson, Appellant.

      Opinion filed November 8, 1939.
    Rehearing denied December 15, 1939.
    Terry, Gueltig & Powell, of Edwardsville, for appellant.

      Wham & Wham, of Centralia, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This suit was commenced in the circuit court of Marion county by the planitiif appellee against O. L. Ray and A. W. Gerson to recover for drilling a portion of a test oil well near Centralia, in Marion county, under a contract which the plaintiff claimed was entered into by the defendants. The case was tried by the court without a jury. The trial court found in favor of the plaintiff and entered a judgment against both defendants for $1,614.25 and costs of suit. The defendant Gerson prosecutes this appeal to reverse the judgment as to him.

The trial court arrived at the conclusion that as a matter of fact and law defendant Ray and appellant Gerson were partners and engaged in the joint undertaking, and that the employment and services of the appellee were not only in proper furtherance thereof, but actually authorized by appellant. Unless it can be said that the record in this case fails to support the trial court’s conclusions or findings, we must affirm the judgment.

From the evidence it appears that in July, 1938, defendant Ray was residing in the city of Centralia, Illinois, and that he had for some 12 years prior thereto been engaged in the oil business in various localities. During the late spring or early summer of 1938 he had drilled and completed three producing wells in the vicinity of Centralia, which were operated by himself and appellant Gerson, who had purchased an undivided one-half interest therein. On several occasions immediately prior to July, 1938, the defendant Ray informed Gerson of a certain oil and gas well covering some five acres of land in the village of Wamac, Illinois, which was obtainable from a party by the name of Burch. Thereafter the lease was discussed by Gerson and Bay on several occasions and was finally acquired by Bay under a certain contract with Burch. Thereafter upon the day immediately preceding the last day fixed for the commencement of drilling operations, according to Bay’s testimony, they inspected the lands covered by the lease or agreement, which lands were known as and referred to by the parties as the “wheat field” and engaged in the following conversation:

Gerson: “On what basis do you want me to go in with you?

Bay: ‘ ‘ Fifty-fifty.

Gerson: “What do you want to put the lease in for?

Bay: “One thousand two hundred dollars a well.

Gerson: “I want to go in with you, but don’t drill too fast.

Bay: “I have to start tomorrow or lose the lease.

Gerson: “All right. What about getting a cable tool machine started?”

Immediately following said conversation between Bay and Gerson, Bay contacted appellee, who was engaged in the drilling of oil wells or tests for oil and gas in the vicinity, and employed the appellee to immediately commence a test well and to furnish all necessary machinery, equipment, labor, etc., and proceed therewith to a depth of approximately 600 feet where it could be ascertained whether certain existing open mine workings were or were not to be encountered. In the event such mine workings were encountered the appellee was to set 10 inch casing in order to permit proper continuation of further drilling. By this written agreement appellee was to be paid a sum computed at the rate of $2.75 per depth foot drilled below the surface. As evidence of the agreement of employment, defendant Bay executed an instrument in writing embodying the above terms. Defendant Bay and appellant Gerson were specifically named and designated in said instrument as party of the first part and the instrument was signed by Bay, individually, and “A. W. G-erson by O. L. Bay.” Shortly after defendant Bay procured from Mr. Hodson an assignment of a half interest in the lease to G-erson and a written title opinion relative to the lease and the land involved. This assignment, together with the title opinion, was tendered by defendant Bay to appellant Gerson, who declined to accept the opinion for the stated reason that the opinion was addressed to Bay and not directly to the appellant. The drilling operations proceeded for a period of several days, during which time appellant G-erson visited the premises, went upon the derrick floor, engaged the employees in conversation and made inquiry concerning the progress thereof. It is disputed as to the number of visits appellant made to the well during the drilling. However, appellant admits at least one occasion when he visited the well in the presence of defendant Bay. At the conclusion of the drilling operations the appellee’s manager, H. C. Gardenhire, Sr., called upon Bay for the purpose of collecting the moneys which were due on account of the contract of employment. Bay thereupon called appellant at his home in Wood Biver, Illinois, by telephone and informed him that the well was completed and that the appellee wanted his money. According to Bay, G-erson’s first inquiry in that telephone conversation was, “Did he hit the mine?” and that G-erson stated he would come over in a couple or three days. Appellant did not come to Centraba and a few days thereafter defendant Bay and H. C. G-ardenhire, Sr., drove over to Wood Biver, Illinois, to see appellant at his home. A conversation concerning the payment for the drilling thereupon took place, during which, according to Bay and G-ardenhire, the appellant made no denial of the obligation to pay for the drilling, but in fact acknowledged it and said, expressly, that he would make payment thereof. The reason given for not making immediate payment was that he had sufficient money on hand to pay his taxes which were then due and if not paid immediately would be subject to 2 per cent penalty. He also stated that he wanted to make payment from moneys he had in a power refinery company. Some two days after this conversation appellant went to Centraba but did not make the payment in question, whereupon the appellee in due course brought this suit.

Appellant denies the conversation immediately prior to the employment of appellee, denies any telephone conversation with Bay, and claims that upon completion of appellee’s contract his conversation with Bay and Gardenhire was as follows:

“Yes, I would like to go in, but I am not financially able and I have to pay my taxes or lose two per cent.

“Well, I am coming to Centraba tomorrow and check up on what I have coming to me at the Power Oil and Befining Company and if I have enough money I might come in with you. ’ ’

Appellant admits that he on at least one occasion visited the “wheat field” while the drilling was in progress and admits that in the presence of Garden-hire and Bay that he at least did not emphatically deny any interest whatsoever in the well.

The appellant contends, first, that he made no contract with the appellee; second, that the defendant Bay, who made the contract, had no authority to bind him; third, that such authority cannot be proven by Bay’s testimony alone; fourth, that appellee not having relied upon anything except what Bay told him, cannot hold appellant Gerson; and, fifth, that the statute .of frauds prevents any recovery.

It must not be overlooked that the primary question involved in this case is did appellant go into this lease, and is he obliged to appellee. - Whether a partnership existed by and between Bay and appellant was dependent upon the facts. Written articles of agreement are not necessary to prove a partnership, since the relationship may exist under a verbal agreement. People v. Sholem, 244 Ill. 502, 508; Haug v. Haug, 193 Ill. 645, 647; Bopp v. Fox, 63 Ill. 540, 543. The existence of a partnership may be implied from circumstances. Kelleher v. Tisdale, 23 Ill. 405, 406; Haug v. Haug, 193 Ill. 645, 647; Bruen v. People, 206 Ill. 417, 422. The trial court found that a partnership existed between Bay and G-erson on the facts as presented in the testimony taken at trial, and a reviewing court is not justified in reversing that factual finding unless it is clearly against the weight of the evidence and constitutes palpable error. Fitch v. King, 279 Ill. 62, 65. Once the court found that the partnership existed, points one and two made by appellant are answered. As a partner, Bay had ample authority to bind the partnership as the subject matter of the contract was essential to the furtherance of the partnership business, namely, that of getting a well drilled.

' As to the third point made by appellant that Bay’s authority to contract and bind appellant cannot be established by Bay’s testimony alone, we think the record shows ample basis for the trial court’s finding exclusive of Bay’s testimony that appellant was interested in the drilling as a partner. We believe the rule to be well stated in Hohnadell v. Ellsworth, 154 Ill. App. 484, 487 (and cases cited therein): “Where, as here, an action is pending against two or more partners and one or more of the decedents puts the fact of partnership in issue by a proper plea, the admissions, statements or declarations of his co-defendant, made in his absence, in reference to the existence of the partnership are not in the absence of other evidence tending to establish a partnership admissible upon the issue. But where sufficient evidence has been given to raise a fair presumption that two or more persons are partners then the acts and declarations of each are admissible as evidence against the others for the purpose of strengthening the prima facie case already established. ’ ’

In this case, aside from the testimony of Bay that appellant and Bay were in on the drilling on a “fifty-fifty” basis, there was ample evidence tending to establish the existence prima facie of a partnership, to wit, the testimony of H. C. Gardenhire, Jr., Harland Wimsatt and Bnel D. Smith, to the effect that Bay stated in appellant’s presence at the well that Gerson was his (Bay’s) partner in the well in question. It also appears that the appellant visted the well during the drilling on at least one occasion that he admits and inquired as to the progress of the drilling.

To appellant’s fourth contention suffice it to say that since the partnership relation in fact existed, it was immaterial whether appellee knew of Gerson’s connection or not. 47 Corpus Juris, sec. 384 (8), page 899.

Finally, the appellant contends that the statute of frauds prevents any recovery. With this we are unable to agree. The mere fact that the subject matter upon which the partnership was to act may have involved the development and improvement of real estate did not bring the oral partnership agreement within the statute of frauds. Van Housen v. Copeland, 180 Ill. 74, 82; Morrill v. Colehour, 82 Ill. 618; Allison v. Perry, 130 Ill. 9; Roby v. Colehour, 135 Ill. 300; Speyer v. Desjardins, 144 Ill. 641, 648.

We have carefully examined the entire record before us and are of the opinion that the evidence presented amply justified the trial court’s finding. The judgment of the circuit court is affirmed.

Judgment affirmed.


author: Mr. Justice Culbertson

text:
    Della Foreman, Appellee, v. Great United Mutual Benefit Association, Appellant.
    Opinion filed November 8, 1939.
    June C. Smith and Hugh V. Murray, Jr., both of Centralia, William C. Stephens and Charles T. Flota. of Harrisburg, for appellant.
    C. E. Soward, of Elizabethtown, and B. F. Anderson, of Gulconda, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

The Great United Mutual Benefit Association appealed from a judgment in favor of Della Foreman, in the sum of $1,087.50, entered in the circuit court of Pope county in an action to recover benefits under a certificate of membership in appellant, which is a mutual benefit association, organized under the laws of the State of Illinois. The certificate was issued in the face amount of $1,000, on March 5, 1935. Callie Letha Hise was named in the certificate as the member to whom the certificate was issued, and Della Foreman, the appellee, was the beneficiary named in the certificate. Jury trial was waived, and the case was tried before the circuit court.

The evidence was that Callie Letha Hise, in whose name the certificate was issued, was, at the time of the issuance of the certificate, afflicted with tuberculosis, from which she had suffered for several years, and that she had been bedfast most of the time for a period of two years before her death, which occurred on October 23, 1936, approximately eighteen months after the certificate was issued. Proof of loss was thereafter made by the beneficiary to the appellant company, but payment thereof was refused, and the premiums which had been paid by the appellee beneficiary while the certificate was in force, were tendered to the appellee in form of a check in the sum of $24.50, which was transmitted to her under date of December 29, 1937, after the action on the policy had been instituted.

The membership certificate, upon which judgment was entered, was in the usual form of policies of such character, and contained standard conditions found in such policies, that the applicant must be in good health, and that the association assumes no liability under the certificate until the certificate is delivered to the member during her lifetime and while she is in good health. The policy contained a one-year incontestability clause, which was in the following form: “After this certificate has been in continuous force for one year from date of issue or from date of last reinstatement, it shall be incontestable if the assessments have been duly paid, except as to the limitations as to suicide. ...”

The evidence likewise disclosed that Callie Letha Hise, in whose name the certificate was issued, never ■personally made application or did anything toward obtaining membership in the appellant association. The. application was made in her name by appellee, and appellee testified that about six months before she made the application she talked with Mrs. Hise, and she. disclosed the conversation as follows: ‘I talked to Mrs. Hise before this policy was taken out. She came to my house and stayed all night and I asked her if she cared if I’d take out insurance on her and she said no, it wouldn’t make her die, or it wouldn’t make her die any quicker. About six months later I took out the insurance on her. I never had any talk about it with her at that time, but she knew I was going to take it, because I talked about it with her before. ’ ’ There is no evidence that the beneficiary, or anyone else, thereafter advised Mrs. Hise of the issuance of the policy, or that the beneficiary or anyone else had any further conversation with or authorization of any kind from her, other than indicated in her recital as to her conversation with Mrs. Hise as hereinabove stated. The policy was delivered to the beneficiary and remained in her possession. The beneficiary paid the premiums. She likewise testified that she had no knowledge that Mrs. Hise was afflicted with tuberculosis at the time the policy was issued.

. Appellant association relies for reversal upon the contentions that: (1) Appellee had no insurable interest in Callie Letha Hise; (2) That the deceased never became a member of appellant association; and, (3) That the certificate, upon which judgment was entered, never became effective.

Appellee, although apparently conceding the lack of insurable interest in the sense contended for by the appellant association, contends that the deceased member had an insurable interest in her own life and could take out insurance in favor of her cousin, the appellee. On principle, this court must agree that such contention is well founded, and that if the certificate were otherwise properly issued, the appellee could be made a beneficiary of. such certificate. The appellee comes within the class made eligible to receive benefits by virtue of the fact that she was a cousin of the deceased and capable of inheriting under the statutes of descent of the State of Illinois. The appellant, as a mutual benefit association organized under the laws of the State of Illinois, had the right to issue a benefit certificate on the life of the deceased in favor of her cousin (Will Co. Nat. Bank of Joliet v. Champaign Co. Mutual Relief Ass’n, 259 Ill. App. 201).

The contention of appellant association that the certificate never became effective because of the poor health of the insured, and because it was not delivered to her in good health, is, on principle, untenable in view of the one-year incontestability clause and the fact that the certificate was in force for a period of more than 18 months prior to the death of the insured. It has long been an established rule that a clause'making an insurance policy incontestable after one year, except for nonpayment of premiums, is valid, and bars a defense of fraud in procuring the policy, said clause being in the nature of an agreed limitation of the time within which a defense of fraud may'be made (Ramsey v. Old Colony Life Ins. Co., 297 Ill. 592). It has been adequately stated that where the incontestability clause becomes operative through expiration of time, a defendant may set up only such defenses as are reserved in the policy, or such as are allowed on the ground of public policy (Powell v. Mutual Life Ins. Co., 313 Ill. 161, 165). The one-year incontestability clause in the instant ease would, therefore, bar the defenses interposed with relation to the health of the deceased.

The instant case, under the facts, however, raises a more fundamental problem, which is best understood when considered in the light of the contention of the appellee, and the conclusion of the court below, and in connection with the case of Gray v. North America Mut. Union, 249 Ill. App. 74. The basis of the decision of the circuit court of Pope county and of the contention of the appellee beneficiary, was that through the obtaining of the consent of the insured, and through the leave to “take out insurance,” authority was necessarily included to make application for membership for the insured in the appellant association, and to procure the certificate, payable to appellee as beneficiary; that by virtue of such “consent” the deceased insured constituted the appellee her agent to make the application and procure the certificate, and that this included authority to receive the certificate as well. The view is taken that the insured had created a general agency for the purpose of procuring the insurance on her life, with appellee as beneficiary. If such facts were clearly established this court could agree with the contentions of the appellee and sustain the judgment entered by the court below. This court is of the opinion, however, that no such agency is established by the evidence.

In the case of Gray v. North America Mut. Union, supra, upon which appellant association places chief reliance, a son had attempted to obtain a certificate of membership in a mutual benefit association, and the insurance incident thereto, upon the life of his father, without first having obtained his father’s consent and without any knowledge on the part of his father. The court in that case, after concluding that no insurance contract was created as between the son and the benefit association, because of lack of insurable interest, declared, that the deceased never became a member of the benefit association and the mere fact of the issuance of the certificate did not give it any added validity. The court there recognized that a member, acting in his own behalf, and voluntarily, may make such provision for his next of kin as he may desire to make, but concluded that when others, without his knowledge or consent, undertake to direct his charities, based upon the period of his life, in which their only interest becomes his early demise and the enjoyment of his involuntary bounty, such contracts are mere wagers and gambling contracts, and void at their inception.

While the present case differs factually from Gray v. North America Mut. Union, supra, this court feels that there has been no sufficient showing that Callie Letha Hise ever became a member of the appellant association. The certificate was procured solely by the appellee beneficiary. While the fact that the appellee suggested the taking out of insurance would not bar a recovery on the certificate, this court believes it is not justified in expanding the rueful, if not somewhat reluctant, acquiescence of the deceased to the taking out of insurance on her life into an agency for the purpose of procuring such insurance on behalf of the deceased. The certificate was procured by the appellee without knowledge of deceased, six months after the conversation referred to in this opinion. The deceased did not participate in the taking out of such insurance in any manner, nor was the fact that such insurance was taken out communicated to her. Her statement to appellee, to the effect that she did not care if appellee would take out insurance on her, and that it would not, “make her die,” or, “make her die any quicker,” seems more consistently interpreted as a conversation with reference to an insurance contract between appellee and the benefit association, if any, rather than between the deceased and appellant association. Had the “consent” been of such character as to establish a desire to obtain insurance and to designate appellee as beneficiary, our conclusion in this case would have been different.

We, therefore, conclude that the appellee, Della Foreman, was not entitled to recover any greater sum than she had paid in to the appellant corporation. The record shows that appellee is in possession of a check which appellant insists may be cashed at any time. On the assumption that such check may be cashed by appellee, and for the reasons stated, the judgment of the circuit court of Pope county is reversed.

Reversed.


text:
    Archie E. Chapman, Appellee, v. Illinois Midwest Joint Stock Land Bank of Edwardsville, Appellant.

      Opinion filed November 8, 1939.
    Wheatley & Combe, of Harrisburg, and Simpson, Reed & Burroughs, of Edwardsville, for appellant.
    Lynndon M. Hancock, of Harrisburg, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

Appellant, Illinois Midwest Joint Stock Land Bank of' Edwardsville, Illinois, a corporation, hereinafter called defendant, appealed from a judgment entered against it for $450 and costs, in favor of Archie E. Chapman, hereinafter called plaintiff.

The original complaint of plaintiff charged that defendant, through its duly authorized agent, engaged plaintiff, a real estate broker, to secure a purchaser of certain real estate for a named price, and agreed to pay therefor, and that plaintiff procured such purchaser, who was ready, willing, and able to purchase the property, but that defendant refused payment. The case was tried before the court, without a jury, and after plaintiff’s testimony had been' submitted he filed five additional counts pursuant to leave of court. The first three of such counts repeated the original allegations in the complaint, but omitted the words “through and by its duly authorized agent. ’ ’ The seventh count alleges a contract between purchaser and defendant, through plaintiff and defendant’s agent, which contract was submitted to defendant and was approved, accepted, and ratified. The eighth count, in addition, avers the holding out of authority in the agent of defendant to make a contract for the sale of the real estate. The answer of the defendant denied all material allegations, but admitted authority in its agent, W. 0. Stacy, to receive offers for purchase, which were to be submitted to the defendant for approval.

The evidence submitted by the parties shows that the defendant owned a farm, as to which W. 0. Stacy supervised the renting, and as to which he was authorized to contact brokers and prospective purchasers and discuss terms of sale with them. The evidence submitted on behalf of defendant indicates that Stacy had authority only to receive offers and agreements, which were to be submitted to defendant for approval or rejection. Some evidence was introduced on behalf of the plaintiff indicating that Stacy had contacted other brokers and made arrangements for sales, and the defendant had referred to Stacy as its “field-man” and “authorized agent.”

It was shown that on August 6,1$37 Stacy talked to one Eugene Choisser about the farm, and Ohoisser said he knew a party who might be interested in buying and inquired whether he could get a commission if the sale was made. Choisser was not licensed as a real estate broker and was told by Stacy that he could not receive a commission for the sale. It was suggested that he get a licensed real estate broker to handle the matter for him. Choisser then got plaintiff, who in turn brought Bay Boll, the prospective purchaser, and they met with Stacy, and a contract for deed was prepared. The contract for deed was signed by said Bay Boll, but was not signed by the Bank, or by Stacy at such time. Prior to bringing Boll to such conference plaintiff stated that Stacy, after stating that the defendant would not pay 5 per cent commission on the farm, finally agreed on 5 per cent if the farm was sold at the price specified in the agreement as finally drafted. Choisser testified that both he and Boll understood that the contract was to be submitted to the defendant Bank for approval before it became binding, but plaintiff testified that he did not understand that that was required. The only service performed by plaintiff consisted of his procuring Boll, and attending the meeting at which the contract for deed was signed by Boll and taken by Stacy for presentation to the defendant Bank.

After the signature to such contract for deed, Stacy took it to the Bank, together with Boll’s check for $700, but on the same morning on which he appeared at the Bank, the Bank received a letter from Boll asking for return of the check, and stating that he found it was impossible to buy the farm. Thereupon Boll’s check, and the instrument which he had signed, were turned over to Stacy on the same day, with instructions to return them to Boll. The check was not cashed, and the proposed contract was not signed, nor, apparently, was it ever submitted to the board or executive committee of the defendant Bank for approval. Within a few days after he wrote the letter requesting withdrawal of his check and of the proposed contract, Boll called the president of the defendant Bank over the telephone and his version of the conversation is that the president told him that the deal would be approved. The president of the defendant Bank states that in such conversation he definitely advised Boll that the contract was canceled and couldn’t be considered. On the same day, Boll wrote a letter to defendant, addressed to the president of the Bank, stating that confirming his telephone conversation on that day he would “like for my contract” to “go through,” and concluded, “would appreciate it if you would contact Mr. Stacy for the contract of this property and submit it to the Executive Committee for approval.” Boll likewise testified that he thereafter received a- telegram, the copy of which he did not retain, which he showed to the plaintiff, and which he stated was from the defendant Bank, and indicated that the ‘ ‘ deal was approved. ’ ’ The plaintiff testified that he did not recall who signed the telegram, but that it said the Bank had “accepted his proposal, or something like that.” It was denied on behalf of the defendant Bank that any such telegram was ever transmitted. There was evidence to the effect that thereafter Stacy had some conferences with Boll in connection with the making of a deal as to the property involved on the basis of modification or elimination of the broker’s commission, and the evidence shows that Stacy delivered the contract and check back to Boll, and that such check was torn up in Stacy’s presence. The sale was never consummated.

The evidence shows that Stacy had no authority in fact from the defendant Bank to approve sales, or to authorize employment of brokers so as to bind the defendant Bank.

The evidence introduced on behalf of the plaintiff in an attempt to show apparent authority on the part of Stacy to consummate agreements with the brokers, tended to confirm the testimony of defendant to the effect that Stacy had no such authority, but merely had authority to contact brokers and prospective purchasers and submit agreements to the defendant Bank for its approval. An examination of the record fails to show any satisfactory evidence of any agency, express or implied, in Stacy, other than to procure offers from prospective purchasers or brokers, and submit them to the Bank.

Authority to solicit offers to purchase does not imply authority in such solicitor to employ a broker (Doggett v. Greene, 254 Ill. 134; Willoughby v. Brown, 190 Ill. App. 51). There being no express authority in Stacy to employ the plaintiff, and no evidence that the plaintiff was employed directly by the defendant Bank in any other manner, the material question raised on the appeal is whether there is sufficient evidence of ratification, approval, or acceptance of the contract, or employment of the plaintiff, so as to sustain the judgment entered in favor of the plaintiff as against the defendant.

A real estate broker is entitled to his commissions when he has furnished a purchaser, with whom the principal enters into a valid contract {Wilson v. Mason, 158 Ill. 304), and this is true though the actual transfer of the property is never made (Fox v. Ryan, 240 Ill. 391.

It is likewise true if one or both parties to the contract refused to comply with the contract (Jenkins v. Hollingsworth, 83 Ill. App. 139; Friestedt v. Dietrich, 84 Ill. App. 604). But where there is no complete contract of sale unless the seller approves the offer, no commission is required to be paid until such approval is shown (Orner v. Liner, 238 Ill. App. 348). Under such circumstances the burden is on the plaintiff broker suing for commissions, to show that he actually brought about a consummation of a sale, or was prevented from doing so by the owner (Jackson v. Kohler, 289 Ill. 444).

In the instant case there is no evidence which shows any ratification, or acceptance, or approval, of the contract in which plaintiff alleges his activity in procuring, other than that disclosed by the prospective purchaser Boll and the plaintiff, in their reference to a telegram which they testified that Boll received from the Bank, and possibly the telephone conversation to which Boll testified. Defendant Bank objected to testimony with reference to such telegram on the ground that no proper foundation was laid. While specific objections are raised on the appeal, such general objection which was interposed at the trial failed to apprise the court of the particular points upon which defendant based its objection (Wyman v. City of Chicago, 254 Ill. 202). The same considerations apply to the telephone conversation as to which the parties testified. We are, therefore, giving consideration to the testimony with reference to the telegram, as well as with reference to the telephone conversation.

On a consideration of all the evidence in the record, and considering the testimony in the light most favorable to the plaintiff, this court must conclude that the evidence fails to show that plaintiff has established a right to recover as against the defendant Bank for services performed by the plaintiff. There is no specific evidence in the record that the defendant Bank at any time approved or authorized the employment of the plaintiff, or the payment of a commission to the plaintiff. The evidence in the record is directly to the contrary. The sale was never consummated, and the only evidence in the record which in any manner indicates that anything in the nature of a complete, valid agreement as between the parties, ever existed, arises either from the telephone conversation referred to, or from the telegram as to which Boll and the plaintiff testified.

As to the telephone conversation, the letter of the purchaser which followed it, in which he makes reference to the fact that he desires that his contract be submitted to the executive committee for approval, indicates that nothing transpired in such conversation which constituted a ratification or approval.

As to the telegram, the defendant Bank flatly denies that any such telegram was ever transmitted. The evidence on behalf of the plaintiff with reference to such telegram, and the contents thereof, is vague, and it is not satisfactorily established by such evidence that anything was ratified which could thereby entitle plaintiff to a recovery of commission by virtue of having furnished defendant with a purchaser with whom the defendant entered into a valid contract. Perhaps on a retrial of this matter, the mystery of such telegram, or its contents, or other evidence which will clarify the issues thus raised, may be presented.

Under the circumstances, this court hesitates to make a finding of fact in this case, and feels that substantial justice will be done here if this case is remanded for trial and a full opportunity is afforded both plaintiff and defendant to present such evidence as may be pertinent to the issues in this cause. This cause is, therefore, reversed and remanded to the circuit court of Saline county, Illinois.

Reversed and remanded.