author: Mr. Justice Jones

text:
    Sherrard State Bank for use of Edward Moberg, Receiver, Appellant, v. J. L. Vernon et al., Appellees.
    Gen. No. 7,635.
    1. Corporations — who hound hy acts of stockholders’ meeting. Proceedings of stockholders’ meeting, no matter where held or how defectively members are notified, bind all who appear- and take part without dissent.
    2. Corporations — waiver of notice of stockholders’ meeting. Statutory and other requirements for notice of meetings of stockholders may be waived by their presence and participation in the meeting.
    3. Corporations — when plea of ultra vires available in collateral proceeding. Plea of ultra vires may be successfully interposed in a collateral proceeding where the corporation is alleged to have performed an act which it as not authorized to perform.
    4. Corporations — when plea of ultra vires may not he interposed. Plea of ultra vires cannot be successfully interposed, except by the State, to the mere abuse of a general power which the corporation has.
    5. Banking — methods of winding up affairs of failing hanks. Bailing banks may wind up their affairs in other ways than by the action of the auditor of public accounts in appointing a receiver, as by entering into a contract to have another bank assume its liabilities and take its assets.
    6. Corporations- — common-law rule on sale of corporate property. At common law neither directors nor majority of stockholders had the power to sell all the property of a prosperous corporation against dissent of a single stockholder.

      7. Corporations — power to sell property of failing corporation. Where the corporation is insolvent or in failing circumstances and the business can no longer be carried on profitably and advantageously, a sale of the corporate property may be made and minor stockholders, in the absence of fraud, cannot object.
    8. Banking — liability of failing bank’s officers on their personal contract to make good assets of their bank to bank taking over its affairs. Written personal contract of a failing bank’s officers to make good any losses on assets their bank turned over to another bank for the latter’s assumption of liabilities of their bank, is an original undertaking, making them liable under its terms.
    Appeal by plaintiff! from the Circuit Court of Mercer county; the Hon. William T. Church, Judge, presiding. Heard in this court at the April term, 1926.
    Reversed and remanded with directions.
    Opinion filed October 8, 1926.
    Rehearing denied and opinion slightly modified January 20, 1927.
    Watson & Duvall, for appellant.
    Church & Hannon and Henry Waterman, for E. E. Sincox and Thomas Convill, appellees.
   Mr. Justice Jones

delivered the opinion of the court.

This is an action of assumpsit brought by Sherrard State Bank for the use of Edward Moberg, receiver, against appellees, J. L. Vernon, H. E. Sudlow, E. E. Sincox and Thomas Convill. The action is based upon a written guaranty executed by appellees and by Charles Kinsey, who was dead at the time the suit was commenced. His personal representative was not made a party to the action. No service was had on Sudlow. A general and special demurrer to the amended declaration was filed by Sincox and Convill, and a similar demurrer was interposed by Vernon. The demurrers were sustained and appellant elected to stand by its declaration. Judgment was entered and this appeal followed,

The sole question in this case is as to the sufficiency of the declaration. Its substantial allegations are: On September 5, 1923, the Sherrard State Banking Company, a corporation, was in failing circumstances, unable longer to carry on a banking business, and on said day sold to the Sherrard State Bank a pajt of its assets, including its furniture and fixtures, as listed in the agreement set out in the declaration. As a part of said contract, the Sherrard State Bank assumed the liability of the Sherrard State Banking Company to the amount of $201,379.75, and in consideration of the assumption of such liabilities, J. L. Vernon, H. E. Sudlow, E. E. Sincox, Thomas Convill and Charles Kinsey, who were all directors of the Sherrard State Banking Company, and who jointly owned more than two-thirds of its capital stock, personally and individually guaranteed the payment of the notes or extensions thereof in any form which were on said day assigned by the Sherrard State Banking Company to the Sherrard State Bank, as listed in “Schedule B” in said contract and guaranty. The contract with its schedules and exhibits and said guaranty are set out in haec verba, together with the resolutions of the directors of each of the banks, authorizing the execution of the contract. The seven exhibits attached to the contract showed the liabilities assumed, and the schedules showed the assets transferred under the contract. “Schedule B” listed borrower’s notes aggregating */$90,836.26. The contract also provided that the Sherrard State Banking Company should deposit to its own credit in the Sherrard State Bank, in a savings account at 4 per cent interest, all money which the Sherrard State Banking Company should receive /from assets not assigned to the Sherrard State Bank and the latter bank was authorized and empowered to charge against said account any notes listed in “Schedule B” which became due and unpaid, as said bank should deem proper. The contract provided that in consideration of the Sherrard State Bank’s assuming liabilities to the Sherrard State Banking Company to the amount of $201,379.75, the directors of the Sherrard State Banking Company who signed it, personally and individually guarantee the payment of the notes or extensions or renewals thereof in any form listed in “Schedule B” to the amount of $90,836.26. On the same day the Sherrard State Banking Company, by a duly constituted meeting of the stockholders, ratified the action of the said board of directors in entering into the contract with the Sherrard State Bank, and the contract was presented to the stockholders of the Banking Company for ratification. At the stockholders’ meeting, J. L. Vernon, H. E. Sud-low, E. E. Sincox, Charles Kinsey and Thomas Convill were present. They owned 198 shares of stock. T. A. Vernon and Annie Sincox were represented by proxy and owned 20 shares of stock. A resolution ratifying the contract was adopted by receiving 218 votes and there were no votes against it. The total number of shares in the corporation was 250. Charles Kinsey died in January, 1924. On October 2, 1924, the Sherrard State Bank was closed under the direction of the auditor of public accounts, and Edward Moberg was appointed receiver. The obligations mentioned in said “Schedule B,” except three notes, aggregating $3,065, are overdue and unpaid. Appellees insist that the declaration alleges conclusions and not facts as to a meeting of the stockholders; that the declaration shows no assent of the stockholders to the terms of the contract; that the contract entered into was beyond the power of either bank to make, and was therefore ultra vires; that the affairs of banks are controlled by statute and that the only manner in which a bank in failing circumstances can dispose of its assets or be wound up is by action of the auditor of public accounts, and that because the contract is ultra vires, the guarantors are not estopped to deny liability thereunder.

Appellees contend that the averment that a “duly constituted ’ ’ stockholders ’ meeting was held is merely a legal conclusion, and that facts must be shown which will constitute a call for the meeting in accordance with the statute governing state banks. Regardless of whether the averment is sufficient to show a duly constituted meeting or not, it charges that there was a meeting of the stockholders and that appellees were present in person and that their stock was voted for the ratification of the act of the directors. It is settled beyond question that no matter where a stockholders’ meeting is held or how defectively the members are notified, the proceedings will bind all who appear at the meeting and participate in it without dissent. People v. Matthiessen, 193 Ill. App. 328, aff'd 269 Ill. 499; J. W. Butler Paper Co. v. Cleveland, 121 Ill. App. 491, aff'd 220 Ill. 128; Hiles v. C. A. Hiles & Co., 120 Ill. App. 617. In other words, statutory and othér requirements for notice of meetings of stockholders may be waived by their presence and participation in the meeting. Appellees are in no position to deny that the meeting was duly constituted.

They further claim that the transaction was in fact a sale of all the assets of the Sherrard State Banking Company in an attempt to wind up its affairs and that therefore the contract was null and void, and that the only way the affairs of a bank can be wound up is by the method prescribed by statute for the consolidation of banks or by dissolution under supervision of the auditor of public accounts. In this connection it is urged that while the declaration alleges the sale of a part of the assets of the Sherrard State Banking Company it appears from the agreement attached thereto that all of the bank’s assets were sold. But there is in the contract an express agreement that the Sherrard State Banking Company shall deposit with the Sherrard State Bank all moneys which the' Sherrard State Banking Company shall receive from any assets not thereby transferred to the other bank, and the other bank was empowered to charge against that account any of the due and unpaid notes guaranteed by appellees. It was manifestly not the object of the parties to dissolve the Sherrard State Banking Company for some time, at least. A course of conduct was followed in this case which is not uncommon, where a bank is in a failing or perilous condition, and another bank or group of banks in an effort to save it or prevent a “run” takes over a large portion of its assets, in consideration of a guarantee to pay off its liabilities.

There is a difference in corporate acts which are an abuse or an excessive use of powers granted, and those which are void as being outside the object of its creation and beyond the powers conferred. The cases cited by appellees, where ultra vires acts of a corporation were successfully attacked, relate to acts expressly prohibited or without the object of the corporation’s creation and beyond its powers — acts which were void. While it is true that the plea of ultra vires may be successfully interposed in a collateral proceeding where the corporation is alleged to have performed an act which it was not authorized to perform, it is well settled that where the act is a mere abuse or an excessive or improper exercise of a general power, which the corporation has, such a plea cannot be successfully interposed. In such a case the question of ultra vires can only be raised by the State. Rector v. Hartford Deposit Co., 190 Ill. 380; Western Tel. Mfg. Co. v. Foley, 150 Ill. App. 343; Daniels v. Belvidere Cemetery Ass'n, 96 Ill. App. 387; Dearborn Truck Co. v. Staver Motor Car Co., 219 Ill. App. 295; McIlvaine v. Foreman, 292 Ill. 224; Chicago Gen. Ry. Co. v. Chicago City Ry. Co., 186 Ill. 219; American Credit & Trust Co. v. Worthington, 191 Ill. App. 177; The Commercial Co. v. Sturges, 186 Ill. App. 573; Illinois Life Ins. Co. v. Beifeld, 184 Ill. App. 582. It is not the law that the only way a failing bank can wind up its affairs is by action of the auditor of public accounts in the appointment of a receiver. And it is not beyond the power of the banks to enter into the contract in question. A purchasing or absorbing bank would hardly assume the liabilities of another bank without receiving a guaranty such as was entered into in this case to indemnify it against loss.

At common law neither the directors nor a majority of the stockholders had power to sell all the property of a growing, prosperous corporation, able to achieve the objects of its creation, as against the dissent of a single stockholder. Where, however, the corporation is insolvent or in failing circumstances and the business can no longer be carried on profitably and advantageously, such a sale may be made and minor stockholders cannot object thereto in the absence of fraud. Beardstown Pearl Button Co. v. Oswald, 130 Ill. App. 290; Rothermel v. Bell & Zoller Coal Co., 79 Ill. App. 667; 14 C. J. Corporations, § 1323. Sound reasoning dictates that the directors of a bank in failing circumstances should have the right to enter into such a contract as the one here involved, not only as a matter of law but as a matter of public policy. Regardless of all other questions in this case it appears that appellees’ guaranty was an original undertaking by which they became liable according to its terms. Gridley v. Capen, 72 Ill. 11; Gage v. Mechanics’ Nat. Bank, 79 Ill. 62. We think the declaration stated a good cause of action. The demurrer thereto was improperly sustained, and the judgment of the circuit court will be reversed and the cause remanded with directions to overrule the demurrer.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice Partlow

license: Public Domain

text:
    Lloyd E. Bowers, Appellee, v. Frank Heflebower et al., Defendants. Fernandus Jacobs, Appellant.
    Gen. No. 7,706.
    1. Negotiable instruments — burden of proving alteration. Under Cahill’s St. eh. 98, IHf 145 and 146, providing that fraudulently or materially altering negotiable instrument without assent of all parties liable avoids it except as to party altering or assenting and subsequent indorsers, and providing that any alteration that changes number or relation of parties is material, the burden of proving such alteration is upon the party alleging it.
    2. Appeal and error — right to complain of favorable error. Appellant may not complain of an instruction erroneously favorable to himself.
    3. Negotiable instruments — introducing note as prima facie case. By introducing note in evidence, plaintiff made out a prima facie case and would be entitled to judgment without other evidence.
    4. Evidence — number of witnesses as affecting preponderance. The mere fact that three witnesses testify on one side as against one on the other does not place the preponderance on the side of the greater number of witnesses.
    5. Evidence — weight of evidence dependent on facts in evidence. Although the weight of evidence is for the jury and they should not disregard unimpeached witnesses, yet they should consider the testimony in connection with all facts in evidence, and then assign it the weight to which it is entitled.
    6. Negotiable instruments — surety’s liability where he knows another is to sign. A surety on a note who knew that another was to sign it, is liable whether or not he had actual knowledge that such other had signed it.
    7. New trial — newly-discovered cumulative evidence. Newly-discovered cumulative evidence on a point not conclusive of the issues does not constitute ground for new trial.
    8. Judgments and decrees — when clerical error in name does not invalidate. Clerical error, in spelling of defendant’s name in verdict returned against her, does not make the judgment rendered thereon against her invalid.
    9. Appeal and error — error affecting nonappealing party. Pact that verdict returned against a codefendant misspelled her name, and judgment rendered against both defendants contained the correct name, gives no cause of complaint on appeal to the second defendant when the codefendant fails to appeal.

      10. Confession of judgment — judgment after reopening. Where a judgment by confession has been opened and on. trial the issues are found for the plaintiff the proper practice is to restore the judgment by confession and not to enter an independent judgment.
    11. Negotiable instruments — when conversation "between surety' and principal of a note not admissible against holder. Evidence of conversation between surety and principal on a note is not admissible against holder when evidence fails to show that the principal on the note was acting as an agent of the holder to obtain the surety’s signature.
    12. Alteration of instruments — when alteration not shown on face of instrument. The fact that the name of a surety on a note was written in different colored ink and inserted between the names of the other two signers does not of itself show an alteration so as to preclude its introduction in evidence.
    13. Instructions — refusal to give instructions covered by others. Where all the facts and law contained in a requested instruction are given in other instructions, the refusal of such requested instruction is not error.
    Appeal by defendant from the Circuit Court of Whiteside county; the Hon. Nels A. Larson, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed December 17, 1926.
    Rehearing denied January 10, 1927.
    Van Sant & Besse and Carl E. Sheldon, for appellant.
    J. J. Ludens, Jacob Cantlin and Lawrence L. Winn, for appellee.
   Mr. Presiding Justice Partlow

delivered the opinion of the court.

A judgment by confession for $6,834 was entered by the circuit court of Whiteside county, in favor of appellee, Lloyd E. Bowers, against Frank Heflebower, Billa E. Heflebower, and appellant, Fernandas Jacobs. On motion of Billa E. Heflebower and Jacobs, the judgment was opened as to them with leave to plead. There was a trial by jury, verdict and judgment against Billa E. Heflebower and Jacobs, and Jacobs has appealed, the judgment remaining in full force and effect as to Frank and Billa E. Heflebower.

It is claimed that after Heflebower, as principal and appellant as surety, had signed this note, and after its delivery to appellee, the note was returned by appellee to Heflebower, and that Billa E. Heflebower, who was the wife of Frank Heflebower, signed the note; that appellant had no knowledge that Billa E. Heflebower had signed the note until it was placed in judgment, and that he never consented to her signing it; that this was such an alteration as released appellant from payment, and that he is no longer liable thereon.

The evidence shows that in 1909, Frank Heflebower had certain business transactions with appellee, and borrowed $6,000, for which he gave his note signed by himself and appellant. This note was renewed once or twice. The final renewal was on November 1, 1919, being the note in this case.

Appellee testified that Billa E. Heflebower had been on the previous notes, and that he had no conversation with Frank Heflebower in regard to the renewal of this note, either before or after its execution. About the time the prior note became due, he sent the note in question from his home in Chicago to Heflebower in Sterling, without any instructions from appellee. Heflebower, his wife and appellant signed it, and it was returned to appellee. He had no conversation with Heflebower afterwards in regard to it. He had no office in Chicago at the time Heflebower testified he talked with appellee about the note, either before or after the date of the note, but at that time his office was at his home in Western Springs, a number of miles from Chicago. He testified he did not send the note back to Frank Heflebower to have Billa E. Heflebower attach her signature, but he retained possession of it from the time it was first given to him until it was sent to his attorney to put in judgment,

Frank Heflebower testified that the note sued on was a renewal of a former note; that shortly before the former note became due he went to Chicago, called on appellee at his office and asked him if he would renew the note. Appellee said he would renew it if Heflebower would get appellant to sign as surety. Heflebower told appellee to send a note to him and he and appellant would sign it. A note was sent to Heflebower and Heflebower and appellant signed it, and it was returned to appellee about • November 1, 1919. Heflebower testified that sometime in December he was again in Chicago and called on appellee "at his office in the Temple Court Building. Appellee said he would like to have Billa E. Heflebower sign the note. Heflebower said he thought his wife would be willing to sign it. Appellee did not have the note at that time but stated that it was in the Central Trust Company. He said that when he went to the bank he would get it and send it to Heflebower. Appellee sent the note to Heflebower, and he asked his wife to sign it, which she did at her home, and it was mailed back to appellee in Chicago; that appellant knew nothing about this transaction. On cross-examination Heflebower testified that to the best of his recollection his wife’s name was not on the former note.

Billa E. Heflebower testified she had signed notes with her husband, but she could not say whether she signed other notes with her husband and appellant, unless she was first told the names of the parties to whom such notes were payable. She testified that the note in question came to her home by mail. Her husband asked her to sign it. The names of her husband and appellant were already on the note and written upon the only two lines provided for signatures. She wrote her name between the other two names and partly over both. The note was then given to her husband and so far as she knew appellant did not see it or know that she had signed it. She fixed the date of her signing this note by the fact that her husband was in the city of Chicago just prior to that time. She testified that it might be possible for the note to have been signed by her in November, 1919.

Appellant testified that he and Heflebower signed the note either at his home or at the State Bank in Sterling. He had no knowledge that Billa E. Heflebower had signed it until after it was put in judgment. He. did not consent to her signing it, and at the time he signed it the name of Billa E. Heflebower was not on it.

Appellant insists that the appearance of the note corroborates these three witnesses; that the name Billa E. Heflebower was written between the two names, partly over both, in a different color of ink, and apparently at a different time; that if Billa E. Heflebower was expected to sign the note that appellee would probably have sent a note with space for three signatures instead of space for only two signatures; that if it had been understood that all three parties were to sign, they would have written their names small enough so there would have been room for all to sign without writing the name of Billa E. Heflebower between the other two signatures; that Heflebower had no office at the time the note was signed, and received his mail at home, and when he got the note, had his wife been expecting to sign it, they would have signed it before he took it down town to have appellant sign it; that the ink not only was of a different color but her signature, although written partly over the other signatures, was plain and distinct.

Section 123 of the Negotiable Instruments Act [Smith’s Statutes 1925, page 1768; Cahill’s St. ch. 98, 145] provides that where a negotiable instrument is fraudulently or materially altered by the holder without the assent of all parties liable thereon, it is avoided except as against the party who has himself made, authorized, or assented to the alteration and subsequent indorsers. Section 124 [Cahill’s St. ch. 98, U146] provides that any alteration which changes the number and the relation of the parties is a material alteration. The decisions are in accordance with these provisions of the statute. Fowler v. Lachenmyer, 193 Ill. App. 547; Soaps v. Eichberg, 42 Ill. App. 375. It has been held that such an alteration releases the surety whether such alteration is injurious or beneficial to the party liable. Keller v. State Bank of Rock Island, 292 Ill. 553.

The court instructed the jury that the burden of proof was on appellee to prove that the note was not altered, and refused to instruct the jury that such burden was on appellant. Where an alteration is alleged to have been made, and such alteration is not apparent upon the face of the instrument, the burden of showing that the note had been altered is upon the party alleging it. Merritt v. Dewey, 218 Ill. 599; Lowman v. Aubery, 72 Ill. 619; Central Trust Co. v. Kendall, 202 Ill. App. 294. There is considerable doubt from the evidence whether the alleged alteration appears upon the face of the note or not, but regardless of that fact, appellant had the benefit of the instruction on this point and is in no position to complain. When appellee introduced the note in evidence he made out a prima facie case and, if no other evidence had been offered, would have been entitled to a judgment.

The evidence shows there had been many transactions between the parties. Appellant had signed several, if not many, notes as security for Heflebower, and Billa E. Heflebower had done the same thing. She was Uncertain in her evidence as to whether she had signed other notes with her husband and appellant. She testified she could not tell whether she had done so or not. She could not tell how many times, during the past several years, she had signed notes at her house when her husband was present, but she knew she had signed several. She could not remember that she had signed any other notes in any other month in 1919. She testified that this note might have been signed in November, 1919, but that she thought it was signed about Christmas, or sometime in December. Appellant testified that when he signed the note Billa E. Hefiebower’s name was not on it and that he did not know her name was on it until after it was placed in judgment. He did not testify, however, that he did not know that she was to sign it. He testified he did not remember having signed any notes which were also signed by her. He was not certain just where he signed this note. He did not remember the details of signing it. He testified he did not think this note was a renewal of any other note.

The preponderance of the evidence does not always depend upon the number of witnesses who testify. The number of witnesses who testify is one of the elements to be taken into consideration in determining the preponderance. From the mere fact that three witnesses testify on one side and one witness testifies on the other, it does not follow that the preponderance is on the side of the three witnesses. The one witness may be supported by the facts and circumstances in the case to such an extent that his testimony induces a belief that it is reasonable and probable, while that of the other witnesses does not produce such a belief. The weight of the testimony is for the jury. They have no right to arbitrarily disregard the testimony of unimpeached witnesses, yet they are to consider such testimony in connection with all the facts and circumstances in evidence and give it such weight as it is entitled to. Goldstein v. Muller, 189 Ill. App. 145; Krasa v. Robbins, 186 Ill. App. 198; Siess v. Branzuly, 183 Ill. App. 192; Chicago Union Traction Co. v. O’Donnell, 113 Ill. App. 259. If appellant knew that Eilla E. Heflebower was to sign this note he would be liable whether he had any actual knowledge that she had signed it or not. When the evidence is considered as a whole and is viewed in the light of the uncertainty of appellant and Eilla E. Heflebower as to the execution of this note and other notes, we cannot say that the verdict is so manifestly against the weight of the evidence as to justify us in reversing the judgment.

Upon the motion for a new trial, H. E. Brown made an affidavit that appellee had an office in Chicago in November and December, 1919, and that he was present and heard the conversation between appellee and Heflebower relative to Eilla E. Heflebower’s signing this note. The court overruled the motion for a new trial and this ruling is assigned as error. Heflebower testified that appellee had an office in Chicago in November and December, 1919. This was denied by appellee. There was evidence on each side of this question. The facts set up in the affidavit of Brown constituted cumulative evidence on a point not conclusive of the issues in the case and did not constitute grounds for a new trial. Springer v. Schultz, 205 Ill. 144; Meyer v. Mead, 83 Ill. 19; Netcher v. Bernstein, 110 Ill. App. 484.

Appellant contends that the jury returned a verdict against Eilla E. Eefelebower and appellant; that no such person as Eilla E. Eefelebower signed the note or was a party to the suit; that the verdict does not conform to the instructions as to the form of the verdict or to the pleadings; that judgment was rendered against Eilla E. Heflebower, but that no verdict was returned against her. This contention is based upon the alleged fact that an extra “e” is used in the spelling of the name “Heflebower.” There is no merit in this contention, The most that can be said on this point is that the difference in names, if there was any difference, was merely a Clerical error. Billa E. Heflebower has not appealed, and is raising no question as to the form of the verdict or the judgment rendered thereon.

The jury returned a verdict finding the issues in favor of appellee and against appellant and Billa E. Heflebower. Appellant insists that the court apparently entered judgment against appellant and a separate judgment against Billa E. Heflebower; that there should have been one judgment against the two and it was error to enter separate judgments against each; that the judgment against appellant is insufficient. The judgment does not appear in full in the abstract and we are unable to determine the exact language used. As far as appellant is concerned, it provided that the judgment of September 17, 1924, being the judgment entered by confession in favor of appellee and against appellant, for $6,384, stand in full force and effect as of the date of the rendition of said judgment. Where a judgment by confession has been opened and a trial had, and the issues are found for the plaintiff, the proper practice is to restore the judgment by confession and not to enter an independent judgment. Shinner v. Raschke, 213 Ill. App. 324; Morris v. Taylor, 199 Ill. App. 588; Cervenka v. Hunter, 185 Ill. App. 547. The judgment was in accord with these authorities and was correct as far as appellant was concerned.

Complaint is made that appellant was not permitted to show the conversation between Heflebower and appellant at the time the note was signed, it being contended that the evidence showed that Heflebower was the agent of appellee in the transaction. There is nothing to show that Heflebower was the agent of appellee in procuring this signature. Appellee was acting in his own behalf, and Heflebower was not his agent in securing the renewal of the note. No question of agency arose in the case, and for that reason the evidence was properly excluded.

It is insisted that the court improperly admitted the note in evidence, because there was an apparent alteration in the instrument on account of the signature- of Billa E. Heflebower being in a different colored ink between the other two signatures. The mere fact that a different colored ink was used did not prove that the signature was added subsequent to the execution of the note. Nor did the fact that the signature was written between the signatures of the other two signers prove that it was an altered instrument. An inspection of the note did not show the alleged alteration and therefore it was properly admitted in evidence subject to proof by appellant that it had been altered.

A statement was made by counsel for appellee when plaintiff’s Exhibit 2 was offered in evidence, with reference to the defense of alteration not having been originally interposed. An objection was sustained to this statement and no injury was done to appellant.

The third instruction refused on behalf of appellant was an abstract proposition of law the substance of which was that an alteration by the addition of a name to a note, without the knowledge or consent of a surety, invalidated such note as to the surety. It is insisted that this instruction should have been given. Appellant’s given instructions 8, 10, 12 and 15 embody all of the facts as stated in this instruction. The court fully instructed the jury as to the law applicable to appellant’s side of the case, and the third instruction was properly refused.

We find no reversible error and the judgment will be affirmed.

Judgment affirmed.


text:
    William H. Schrader, Appellee, v. Frank Heflebower et al., Defendants. Fernandus Jacobs, Appellant.
    Gen. No. 7,719.
    1., Negotiable instruments — reservation in note as affecting liability of surety where extension, granted. Under Cahill’s St. eh. 98, H 141, subd. 5, providing surety on a note is discharged if without his consent holder extends time to principal debtor unless right of recourse against surety is expressly reserved, the words “no extension of the time of payment, with or without our knowledge, by receipt of interest, or otherwise, shall release us, or either of us, from the obligation of payment” in the note signed by surety, constitute such a reservation and an extension by the principal for a consideration does not discharge the surety.
    2. Confession of judgment — judgment after reopening. Where a judgment by confession has been opened and on trial the issues are found for the plaintiff the proper practice is to restore the judgment by confession and not to enter an independent judgment.
    Appeal by defendant from the Circuit Court of Whiteside county; the Hon. Nels A. Larson, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed December 17, 1926.
    Rehearing denied January 10, 1927.
    Van Sant & Besse and Carl E. Sheldon, for appellant.
    Jacob Cantlin, J. J. Ludens and Lawrence L. Winn, for appellee.
   Mr. Presiding Justice Partlow

delivered the opinion of the court.

A judgment by confession for $6,864.50 was entered in the circuit court of Whiteside county in favor of appellee, William H. Schrader, against Frank Heflebower and appellant Fernandus Jacobs. On motion of appellant, Jacobs, the judgment was opened as to him with leave to plead. He filed the general issue with notice thereunder that appellant signed the note in question as surety for Heflebower which appellee knew; that appellant received no part of the money, and does not owe appellee any money; that when the note was due, appellee and Heflebower, without the knowledge and consent of appellant, extended the time of payment for one year for which Heflebower paid appellee $100. There was a trial by jury. At the close of the evidence,- the court directed a verdict in favor of appellee for $6,864.50. Judgment was entered upon the verdict and appellant has appealed.

Appellant contends that the evidence shows that when he signed the note, Heflebower told appellant, in the presence of.appellee, that appellee wanted appellant to sign the note as security for Heflebower, and appellant said he would do so, and he did sign the note and turned it over to appellee; that when appellant affixed his name as surety, and appellant accepted a note with that understanding, knowing the capacity in which appellant intended to and did in fact sign the. note, that appellee was estopped from asserting that appellant was a principal notwithstanding the clause in the note which so recited; that appellant did not get any of the money for which the note was given, never paid anything on the note, was not a partner of Heflebower and did not sign as a partner; that the note was given by Heflebower to appellee for grain which Heflebower had bought from appellee; that after the note became due, without the knowledge of appellant, Heflebower paid appellee $100 to extend the note for one year; that if appellee is estopped to deny that appellant was a surety, then this extension of time would defeat a recovery as against appellant, and the court should not have instructed the jury to return a verdict for appellee.

The note does not appear in full in the abstract. The provisions of the power of attorney are omitted. The judgment might he affirmed on the ground that the abstract does not comply with the rules of this court, does not show all of the evidence, and that in the absence of all of the evidence we will assume that it sustains the judgment.

Appellee’s brief sets out the note in full. It recites that “all signers to this note are principals. No extension of the time of payment with or without our knowledge, by receipt of interest, or otherwise, shall release us or either of us from the obligation of payment. ” '

Article 8, section 119, paragraph 5, of the Negotiable Instruments Act [Smith’s Statutes 1925, page 1768; Cahill’s St. ch. 98, H 141, subd. 5] provides that a person secondarily liable on a note is discharged “by an agreement in favor of the principal debtor binding upon the holder to extend the time of payment, or to postpone the holder’s right to enforce the instrument, unless made with the assent prior or subsequent of the party secondarily liable, or unless the right of recourse against such party is expressly reserved, or unless the principal debtor be an accommodating party.”

The note expressly provides that “no extension of the time of payment, with or without our knowledge, by receipt of interest, or otherwise, shall release us, or either of us, from the obligation of payment.” Appellant signed the note with full knowledge that it contained this provision and it will be presumed that he understood the meaning of the language used. He had a perfect right to sign the note with that provision in it if he saw fit. By so doing he waived his right under the statute to notice as the party secondarily liable. If he waived the right to notice then appellee had a right to extend the time of payment even if he received a consideration therefor. For this reason the court was not in error in directing a verdict against him.

It is insisted that as there was a judgment of record by confession for the amount due, the jury should simply have returned a verdict in favor of appellee; that the judgment must follow the verdict; that the verdict was erroneous and no judgment could be entered upon it. The verdict was in favor of appellee for $6,864.50. The order was that the judgment, entered by confession on January 6, 1926, for $6,864.50, stand in full force and effect as of that date. Where a judgment by confession has been opened and a trial had, and the issues found for the plaintiff, the proper practice is to restore the judgment by confession and not enter an independent judgment. Shinner v. Raschke, 213 Ill. App. 324; Morris v. Taylor, 199 Ill. App. 588; Cervenka v. Hunter, 185 Ill. App. 547. The judgment as entered was in accordance with the rule laid down in these cases and was correct.

We find no reversible error and the judgment will be affirmed.

Judgment affirmed.


text:
    The People of the State of Illinois ex rel. John A. Morris and A. E. Parr, Appellee, v. John Pettow, Appellant.
    Gen. No. 7,671.
    Appeal and error — dismissal where only moot questions involved. Appeal from a judgment upon an information in the nature of quo warranto ousting a school board director on the ground of invalid appointment under Cahill’s St. eh. 122, jf 97 (5), will be dismissed where the director’s successor had qualified before the Appellate Court could reach the case so that no question involving actual rights was left for decision.

      Appeal by defendant from the Circuit Court of Peoria county; the Hon. Frank Lindley, Judge, presiding. Heard in this court at the December term, 1925.
    Appeal dismissed.
    Opinion filed December 31, 1926.
    Cameron & Anderson and George W. Hunt, for appellant.
    Henry E. Pratt, for appellee; McGrath, Stone & Daily, of counsel.
   Mr. Presiding Justice Partlow

delivered the opinion of the court.

The State’s attorney of Peoria county filed an.information in the nature of a quo warranto in the circuit court of Peoria county, in the name of the People of the State of Illinois on the relation of John A. Morris and A. E. Parr, against appellant, John Pettow, to require him to show by what authority he held the office of member of the Board of Education of Community High School District No. 201, Peoria County, Illinois. Appellant filed a plea of justification, a demurrer was sustained to the plea, appellant elected to stand by his plea, judgment of ouster was entered, and an appeal was prosecuted to the Supreme Court, but the case was transferred to this court.

The plea alleged that the school district was organized as provided by law; that it was managed and operated under the General School Law [Cahill’s St. ch. 122] by officers elected by the legal voters, and in certain cases, where vacancies arose, by officers or members of said board appointed to fill vacancies until the next regular election; that the board was composed of five members as provided by section 89f of the School Law [Cahill’s St. ch. 122, [[97 (5) ]; that after the election in April, 1925, the members were E. D. Varnes, E. S. Glasgow, Ed Kesler, John A. Morris and Grafton Blair; that at a meeting held April 23,1925, Varnes was elected president and Morris was elected secretary; that on May 19, 1925, Kesler resigned and A. E. Parr was appointed in his place; that on April 20,1925, Blair resigned; that at a special meeting held September 12, 1925, the four remaining members of the board were present, and Glasgow nominated appellant, Pettow, as successor to Blair; that the motion was put by the president, Glasgow voted “aye,” whereupon Varnes vacated the chair and appointed Glasgow chairman, and Varnes, as a member of the board, voted “aye,” after which Varnes returned to the chair and Morris and Parr voted “no.” The president, over the protest of Morris and Parr, cast the deciding vote for appellant, Pettow, and declared him -elected to fill the vacancy; that a special meeting was held on September 17, 1925, at which all of the members were present, including appellant, and the minutes of the meeting of September 12,1925, were read and approved without objection. The plea alleged that Pettow is qualified under the statute to act as a member of said board, and has acted, and is now acting; that each and every provision of the statute, mandatory as well as directory, relative to his appointment, has been complied with, and that the appointment was, in all respects, legally made, and appellant is entitled to hold the office; that he now holds said office by warrant of said appointment, is a member of said board, and has not usurped the office as by said information is supposed.

Counsel for appellee have notified this court that since this appeal was prosecuted, and while pending the determination thereof, that the term of office of appellant has éxpired, his successor has been elected and qualified; that no question in the case remains to be determined, and that the appeal should be dismissed. Counsel for appellant have also notified this court that these facts are true, except that they insist that the questions involved are of such public importance that they should be decided, and that the appeal should not be dismissed.

The article on appeals, 4 Corpus Juris, p. 578, § 2386, states that where, on an appeal in a proceeding involving the right to an office, it appears that the term of office has expired, the appeal will be dismissed.

In State of Tennessee v. Condon, 189 U. S. 64, 47 L. Ed. 709, a chancery proceeding involving the right to an office was dismissed on appeal, because the term of office had expired.

In Kimball v. Kimball, 174 U. S. 158, 43 L. Ed. 932, on a petition, by one claiming to be the widow of the deceased, to set aside letters of administration granted on a petition representing that the deceased died unmarried, where, after the proceeding in the trial court, a will was found appointing an executor, the court dismissed a writ of error on the grounds that the writ presented a moot question, since the petitioner could not obtain letters of administration on account of the existence of the will.

In Wick v. Chicago Tel. Co., 277 Ill. 338, the court said: “The existence of an actual controversy is an essential requisite to an appellate jurisdiction, and a reviewing court will dismiss an appeal or writ of error where facts are disclosed which show that such a controversy does not exist, even though such facts do not appear in the record. It is a general rule that when a reviewing court has notice of facts which show that only moot questions or mere abstract propositions are involved it will dismiss the appeal or writ of error. * * * When there is no real present question involving actual interests and rights for a reviewing court to consider, the court should not be compelled to review a cause merely for the purpose of determining who ought to pay the cost of the suit.” To the same effect are Donahoe v. Owens, 277 Ill. 318; People v. Burke, 274 Ill. 55; Gormley v. Day, 114 Ill. 185; Lyle v. McKinlay, 229 Ill. App. 349; Minwegen v. Coughlin, 181 Ill. App. 354; People v. Stevens, 152 Ill. App. 118; People ex rel. Koelling v. Cannon, 146 Ill. App. 255.

This case does not involve questions of such public importance that there should be a determination upon the merits, and under the authorities cited the appeal will be dismissed.

Appeal dismissed.


author: Mr. Justice Jett

text:
    The People of the State of Illinois, Defendant in Error, v. Peter San Filippo, Plaintiff in Error.
    Gen. No. 7,668.
    1. Intoxicating liquors — when indictment sufficiently designates liquor as beverage. In view of Cahill’s St. eh. 43, If 2, defining intoxicating liquor, an indictment designating liquor, alleged to have been unlawfully sold, as intoxicating, thereby sufficiently designated such liquor as fit for beverage purposes.
    2. Criminal procedure — sufficiency of indictment where one count good. A verdict finding defendant guilty in the manner and form as charged in the indictment, being equivalent to a general verdict of guilty, will be sustained notwithstanding one count of such indictment may be defective, where the other count is good and the evidence sustains it.
    3. Intoxicating liquors — when election as to particular sale relied on not required. Where an indictment in two counts charging the sale of intoxicating liquor in violation of the Prohibition Law was supported by evidence of several illegal sales, it was not error to refuse to compel the People to elect upon which sale they would rely for a conviction, defendant having been fully informed by the indictment as to the nature of the charge against him and having denied making any sales at all.
    4. Intoxicating liquors — when evidence of search properly excluded. In a prosecution for unlawful sale of intoxicating liquor on several specific dates, evidence concerning a search of defendant’s premises under a warrant issued six days after the last day on which he was alleged to have made such sales was properly excluded as irrelevant to any issue in the ease.

      5. Criminal procedure — when instruction on reasonable doubt not prejudicial. Defendant in a prosecution for an offense held not prejudiced by the giving of an instruction defining the "reasonable doubt” which may properly form the motive of a juror in voting not guilty.
    6. Criminal procedure — when instruction not prejudicial. Defendant in a prosecution for unlawful sale of liquor held not prejudiced by the giving of an instruction in the language of Cahill’s St. eh. 43, If 28, denouncing the possession of liquor or property intended to be used in violation of the Prohibition Law, where such defendant was not found guilty of such possession.
    7. Criminal procedure — when instruction not prejudicial. Instruction in the language of Cahill’s St. eh. 43, ji 3, given in a prosecution for unlawful sale of intoxicating liquor without reference to the facts, held not prejudicial.
    8. Intoxicating liquors — when instruction on burden of proof of permit correct. In a prosecution under an indictment charging unlawful sale of intoxicating liquors without a permit from the Attorney General, an instruction placing upon the defendant the burden of proving possession of such permit held proper.
    9. Intoxicating liquors — when verdict not against weight of evidence. Verdict of guilty, in a prosecution for unlawful sale of intoxicating liquor, held not so manifestly against the- weight of the evidence as to require reversal.
    Error by defendant to the Circuit Court of Winnebago county; the Hon. Earl D. Reynolds, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed January 20, 1927.
    Boy F. Hall and W. B. Dusher, for plaintiff in error.
    William D. Knight, State’s Attorney, and Ale-red B. Lotjison, Assistant State’s Attorney, for defendant in error.
   Mr. Justice Jett

delivered the opinion of the court. Peter San Filippo, plaintiff in error, was indicted by the grand jury of the county of Winnebago for violating the Illinois Prohibition Law [Cahill’s St. ch. 43]. The indictment contains two counts. The first charges that Peter San Filippo, plaintiff in error, on January 11, 1926, at and within the county of Winnebago, and State of Illinois, did sell intoxicating liquor unlawfully and wilfully, without having a permit from the Attorney General of the State of Illinois to sell such liquor. The second charges that the plaintiff in error on the 11th day of January, 1926, in the said county and State, certain liquor, to wit, one-half pint of spirituous liquor containing one-half of 1 per cent and more of alcohol hy volume and fit for beverage purposes, did unlawfully and wilfully sell, without having a permit from the Attorney General of the State of Illinois to sell liquor.

A motion was made hy the plaintiff in error to quash the indictment, which' motion was hy the court denied and the plaintiff in error excepted. To the indictment the plaintiff in error entered a plea of not guilty. A jury trial was had and the plaintiff in error was found guilty and the jury returned the following verdict: “We the jury find the defendant guilty in manner and form as charged in the indictment.”

Motions for a new trial and in arrest of judgment were made and denied. The plaintiff in error was sentenced to pay a fine of $1,000, and also to be confined in the ’county jail for the term of six months and to pay the costs. To which judgment the plaintiff in error excepted and sued out this writ of error.

A number of reasons are assigned for a reversal of the judgment. Many of the reasons, however, are not argued and we will consider those that are argued by the plaintiff in error in support of his contention for a reversal of the judgment. It is insisted first that the first count of the indictment is bad for the reason that it does not charge that the intoxicating liquor was fit for beverage purposes. It will he observed that the indictment uses the term “intoxicating liquor” in the said first count and such liquor includes brandy, whisky, rum, gin, beer, ale and wine, and in addition thereto any spirituous, vinous, malt or fermented liquor, liquids and compounds whether medicated, proprietary, patented or not, and "by whatever name called, containing one-half of 1 per cent or more of alcohol by volume, which are fit for use for beverage purposes as defined in section 2 of the act [Cahill’s St. ch. 43, If 2]. Under such a definition, when a liquor is described as “intoxicating liquor” that designation signifies that it is “potable as a beverage,” or “fit for beverage purposes.” State v. Brown, 151 Minn. 340, 186 N. W. 946, a decision of the Supreme Court of Minnesota. The case of State v. Brown, supra, finds support in State v. Hosmer, 144 Minn. 342, holding in substance that when a liquor is described as “intoxicating liquor,” that designation of it signifies that it is potable as a beverage or fit for beverage purposes, as liquor can intoxicate only when used as a beverage.

A count in an indictment charging unlawful possession of intoxicating liquor for the purposes of sale need not allege that the liquor was fit for beverage purposes, as the term “intoxicating liquor” signifies that it is potable or fit for beverage purposes. People v. Cioppi, 322 Ill. 353.

A charge of violation of the Prohibition Act in the possession and sale of intoxicating liquor need not specify the kind of liquor sold nor allege that it was fit for use as a beverage as the statute has defined the term “intoxicating liquor,” and a defendant so charged with a violation of the statute is sufficiently informed of the nature of the charge. People v. Alfano, 322 Ill. 384. In view of the rule as announced in the authorities hereinbefore cited, we are of the opinion that the court did not err in refusing to quash the first count of the indictment. Furthermore no argument appears to have been made in support of the motion to quash the second count of the indictment. The verdict returned by the jury found the defendant guilty in manner and form as charged in the indictment. Since the verdict did not refer to any count on which the finding of guilty was made but was a finding of guilty on both counts it may be treated as a general verdict of guilty. Where there are one or more counts in an indictment and the evidence supports the charge in a good count, the proof under a general verdict of guilty will be referred to the good count and the conviction sustained. People v. Jones, 263 Ill. 564. It will be seen therefore that if the contention of the plaintiff in error was good as to the first count still the judgment of the court could be sustained under the second count of the indictment to which no objections have been made by way of argument by the plaintiff in error.

It is next urged by the plaintiff in error that the court erred in refusing to require the People to elect upon which of the alleged sales they would rely for a conviction. It is conceded there was evidence of several alleged sales introduced. It is not claimed that the court erred in allowing evidence of the various sales to be introduced. It is conceded that such evidence was proper for the purpose of corroboration. It is said the court should have required the State to elect so that the defendant would have been in a position to know the exact offense with which he was charged, and could thereby properly defend himself. The indictment informed him of the nature and character of the charge. The record discloses that the defendant denied making any sales at all, to the witnesses or any of them, who were called on the part of the prosecution, therefore, he was not prejudiced by the action of the court in refusing to require the people to elect which sale they would rely upon for a conviction. One charged with a violation of the Prohibition Act cannot by multiplying his sales diminish the volume of competent testimony against him, or confine the proof of one particular sale.

It is next insisted by the plaintiff in error that the court erred in refusing to admit evidence concerning a search of his premises made on January 9, 1926. The last alleged sale relied upon by the prosecution was on the 3rd day of January, 1926. The record discloses that the search which was had was made under a search warrant dated January 9, 1926. The accused was not charged with the possession of liquor or of the making of sales on the 9th day of January, 1926, and for the purposes of this prosecution it is quite immaterial what the condition of the place was at that time, and for that reason the complaint and search warrant offered by the plaintiff in error tended neither to support nor dispute any issue before the court, and were properly ruled out by the court. No error was committed in refusing to permit the defendant to introduce testimony relative to the alleged search.

It is also contended that the court erred in giving Instructions 2, 8, 9, 10, 11 and 12 offered by the People. Instruction No. 2 informed the jury that the doubt which the juror is allowed to retain in his own mind, and under the influence of which he should frame a verdict of not guilty, must always be a reasonable doubt. A doubt produced by undue sensibility in the mind of any juror, in view of the consequences of his verdict, is not a reasonable doubt, and a juror is not allowed to create sources or materials of doubt by resorting to trivial and fanciful suppositions and remote conjectures as to possible state of fact different from that established by the evidence. This is an old stock instruction that has been given frequently and it certainly did not work any harm to the plaintiff in error.

The eighth instruction is as follows: “The court instructs the jury, in the language of Section 28 of the Illinois Prohibition Act, that it shall be unlawful to have or possess any liquor intended for use in violation of this act, or property designed for the illegal manufacture of liquor, and no property rights shall exist in any such liquor or property.” The accused was not found guilty of possession. We can see no good reason for the giving of this instruction nor can we see wherein it was harmful to the plaintiff in error.

Instruction No. 9 purports to be in the language of section 3 of the Prohibition Act [Cahill’s St. ch. 43, If 3]. The instruction merely set out the provisions of the statute and did not refer in any way to the facts in the case. The jury was simply informed what the law was in the language of the law itself. This instruction was given in People v. Sepich, 237 Ill. App. 178, and the same objection was made there that is made here by plaintiff in error. On page 185 in the Sepich case the court, in discussing the instruction, said: “The second instruction advises the jury in the language of the statute that ‘it is unlawful for any person to manufacture, sell, * * * or possess’ intoxicating liquors except as authorized by the act. The advice was clearly within the bounds of propriety. The exception is explained by inserting in immediate connection therewith the conditions exempting vendors and possessors from prosecution. It is said in criticism the court should not submit to the jury the construction of the statute, and it did not do so. The interpretation clause found in the section was given along with the purview of the section, but it could not and doubtless did not mislead the jury in this case.”

Instruction No. 10 has to do with the question of liquor being fit for beverage purposes. What we said relative to the first count of the indictment meets the objection made in instruction No. 10.

Instruction No. 11 relates to the question of proof of time and is particularly applicable to cases of this character where the evidence is of a continuous selling and covers different days.

The twelfth instruction is as follows: ‘ ‘ The court further instructs you that unless it appears from the evidence in this case that the defendant had the permit mentioned in the indictment, or either of the counts thereof, then the averment in the indictment that the defendant had no such permit from the Attorney General may be taken as true by you. ” It is insisted that this was a material averment and that the People were required to prove it beyond a reasonable doubt. It is also insisted that the burden was placed upon the plaintiff in error of proving that he did not have a permit from the Attorney General. The general rule is, in prosecutions for criminal offenses, that where the subject matter of a negative averment lies particularly within the knowledge of the defendant, the averment, unless disproved by the defendant, will be taken as true. People v. Hollenbeck, 322 Ill. 443, 448-449, and cases there cited. It was proper, therefore, to give instruction No. 12.

In concluding his argument the plaintiff in error says: “Surely, the court cannot consider that this defendant was so conclusively proven guilty that this court should not consider the many reversible errors to which we have called the court’s attention.” We have considered the questions presented by the plaintiff in error on which he relies for a reversal .and have stated our views relative to the same. The defense in this cause rests entirely upon the testimony of the plaintiff in error. The evidence on the part of the prosecution is to the effect that several sales of intoxicating liquor were made by the plaintiff in error.

Whether the evidence was sufficient to warrant a verdict of guilty was in the first instance to be determined by the jury. In criminal cases the rule which has uniformly been applied by this court is. that the verdict of a jury will not be set aside unless the finding is so palpably against the weight of the evidence as to indicate that the verdict of the jury is based upon passion or prejudice. People v. Lutzow, 240 Ill. 612-616.

The record contains evidence amply sufficient to sustain the verdict. No other conclusion than that of the guilt of the plaintiff in error could be reached if the evidence of the prosecution alone be considered. The jury were not bound to accept the account of the transaction given by the plaintiff in error and disregard that .of the witnesses for the prosecution. To determine the facts and the credibility of the various witnesses is the special function of the jury. Whether the evidence favorable to the defense was sufficient to raise a reasonable doubt of the guilt of the plaintiff in error was a question of fact peculiarly within the province of the jury to determine. This court will not interfere with that determination except where it clearly appears, from a consideration of all the evidence, that there is a reasonable doubt of the defendant’s guilt. People v. Williams, 240 Ill. 633-638.

The trial court saw and heard the witnesses. The court approved the finding of the jury, and rendered judgment on the verdict. We are of the opinion that no reversible error was committed in the trial of this cause and that the judgment of the circuit court of Winnebago county should be affirmed, which is accordingly done.

Judgment affirmed.


text:
    Alden B. Frymire, trading as Frymire Motor Sales Company, Defendant in Error, v. Arthur K. Baldridge, Plaintiff in Error.
    Gen. No. 7,689.
    1. Appeal and error — presumption in absence of bill of exceptions. In the absence of a bill of exceptions it will be presumed, in a common-law action, that the evidence supports the verdict.
    2. Appeal and error — review of judgment in absence of bill of exceptions. Where defendant’s default for want of an appearance was entered on the first day of the term, and judgment thereon was entered two days later without any further proceedings intervening, the judgment will not be reversed, on writ of error, upon the ground that it was one for unliquidated damages, where in the absence of a bill of exceptions there was nothing in the record to show that such was the fact, and the judgment entered was for the sum stated as due in the affidavit of merits filed with the declaration.
    Error by defendant to the Circuit Court of Warren county; the Hon. George C. Hillyer, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed January 20, 1927.
    Murphy & Kritzer, for plaintiff in error.
    Charles E. Lauder and Frederick H. Lauder, for defendant in error.
   Mr. Justice Jett

delivered the opinion of the court. This is a writ of error sued out by Arthur K. Bald-ridge, plaintiff in error, to reverse a judgment obtained by Alden B. Frymire, doing business under the name of Frymire Motor Sales Company, defendant in error, against plaintiff in error, in the circuit court of Warren county.

The declaration consists of the common counts and attached thereto is a copy of the contract entered into between the plaintiff in error and defendant in error.

No appearance was had by the plaintiff in error in the circuit court. After the term at which the judgment was obtained had adjourned, notice was served upon the defendant in error by the plaintiff in error that he was going to file a praecipe and sue out a writ of error. There is no bill of exceptions in this cause.

It appears that this suit was brought to the January term, 1925, of the circuit court of Warren county but no service was had on the defendant. An alias summons was issued returnable to the September term, 1925, and the alias summons was served on the defendant on the 28th day of May, 1925. The declaration was filed on the 10th day of September, 1925, An affidavit of merits was filed with the declaration. The term of court convened on the 21st day of September, 1925, and the defendant was defaulted for want of appearance. Judgment was entered on the 23rd day of September, 1925, against the defendant for $503. Nothing further was done in the case at the said September term of court.

It is the contention of plaintiff in error that because the affidavit of merits, attached to the declaration of defendant in error, refers to a certain contract entered into by the parties to this proceeding that it is sought to recover unliquidated damages. Since there is no bill of exceptions on file there is nothing to indicate that the judgment rendered was for unliquidated damages. In the absence of a bill of exceptions the court cannot inqtdre into the sufficiency of the evidence to support the judgment. Reeve v. Mitchell, 15 Ill. 297.

If there is no bill of exceptions in a common-law action, it will be presumed that the court had sufficient .evidence to justify the judgment. People v. Illinois Merchants’ Trust Co., 320 Ill. 365-367.

The affidavit of merits is to the effect that there was due and owing to the defendant in error, after allowing all just credits and deductions, $503, and the judgment is for said sum of $503. There is nothing to show that the judgment was for unliquidated damages. The judgment of the circuit court of Warren county is affirmed.

Judgment affirmed.


text:
    James N. Huston, Plaintiff in Error, v. W. B. Pusey, Defendant in Error.
    Gen. No. 7,720.

      Brokers — right to retain excess over named price. Where a real estate broker, commissioned to sell certain land for a price fixed by the owner under representations by the broker that no greater price could be obtained, sold such land for a higher price, it was error to direct a verdict for defendant in the owner’s action against the broker to recover such excess, there being no proof of an agreement that the broker should retain such excess, and the owner not having been advised, at the time he made the deed, as to the amount for which the land was actually sold.
    Error by plaintiff to the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the October term, 1926.
    Reversed and remanded.
    Opinion filed January 20, 1927.
    Robert C. Carr, for plaintiff in error.
    Kelly, Kelly & Kelly, for defendant in error.
   Mr. Justice Jett

delivered the opinion of the court. James N. Huston, plaintiff in error, brought suit against W. B. Pusey, defendant in error, to recover $213 alleged to be due him as a part of the selling price on the sale of real estate. At the close of the evidence on the part of the plaintiff in error, the court directed a verdict in favor of the defendant in error and this writ of error was sued out by plaintiff in error.

For the purposes of this opinion the plaintiff in error will be referred to as plaintiff and the defendant in error as the defendant.

The evidence shows that the plaintiff was the owner of a piece of real estate, and placed it in the hands of the defendant as real estate agent to sell. It appears that there was a controversy between the plaintiff and the defendant as to the price. Plaintiff stated that he wanted $500 for the property and the defendant told him he could not sell it for that amount. There was then some talk about the plaintiff accepting $400. The defendant said he could not get $400 for the property. It was finally agreed that the property should be offered for $350. The plaintiff was willing to accept $350, as the defendant insisted he could not sell the property for $400. There was no contract between the parties as to any commission or what the commission should be. Subsequently, the defendant notified the plaintiff that he had sold the property for $350, and a deed was executed by the plaintiff. The defendant stated at the time the deed was executed that he did not remember the name of the purchaser. Plaintiff received the $350, as the selling price. Some time later the plaintiff learned that the defendant had sold the property for $600. The plaintiff had a conversation with the defendant in which he admitted he received $600 for the property.

The sole question in this case is whether or not the court properly directed a verdict in favor of the defendant at the close of the evidence for the plaintiff. The evidence does not show that there was an agreement that the defendant should receive all of the sale price over and above $350. The defendant did not, at the time the deed was made, reveal to the owner that he had sold the property for more than $350.

An agent is bound to show the utmost good faith to his principal, and must disclose to him all facts relating to the agency. Any personal benefit obtained at the expense of his principal must be accounted for by the agent. Stemm v. Gavin, 255 Ill. 480-486.

It is well settled that an agent employed to sell land cannot himself become a purchaser, and he is held to the strictest fairness and integrity, and bound to act in the utmost good faith, so that if he is authorized to sell land at a fixed price, and sells it for a greater price, he must account to his principal for the excess. Kerfoot v. Hyman, 52 Ill. 512-514.

“Authority to an agent to sell at a stipulated figure does not amount to a contract to give him all he sells for above that sum. * * * It is still the duty of the agent to make the property bring the highest price that can be obtained, and account to his principal for the whole sum less his reasonable compensation.” Kellogg v. Keeler, 27 Ill. App. 244-245. The evidence shows that the defendant informed the plaintiff that he could not sell the property for more than $350 and at the same time the defendant had an advertisement in a newspaper in which he was attempting to sell it for $600, and as a matter of fact did sell the property for $600.

From the facts as disclosed by the record the defendant did not show the utmost good faith to his principal and did not disclose to him all facts relating to the agency. Whether he was guilty of fraud and whether he did make full disclosures were questions of fact which should have been submitted to the jury. We are of the opinion the evidence on behalf of the plaintiff was sufficient to have the case passed upon-by the jury. The court was in error in directing a verdict for the defendant and the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    John L. Hoff, Appellee, v. James J. Dougherty, Administrator of the Estate of John M. Dougherty, Deceased, Appellant.
    Gen. No. 7,731.
    1. Negotiable instruments — who is prima faoie owner. The possessor of a negotiable note is prima facie owner thereof.
    2. Negotiable instruments — owner of legal title may sue. Suit on a negotiable note is properly brought in the name of th.e holder of the legal title thereto, and the fact that another has an equitable interest in the note is no defense.
    3. Judgments — on joint obligations. In an action against the estate of one of two joint makers of a negotiable note by the legal holder thereof, the court is without jurisdiction to enter judgment against the estate for one-half of the amount of the note, notwithstanding the comaker has an equitable interest in the note as against the holder, such comaker not being a party to the action and the suit being one at law.
    Appeal by defendant from the Circuit Court of La Salle county; the Hon. Job A. Davis, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed January 20, 1927.
    Woodward, Hibbs & Pool, for appellant.
    Butters & Butters, for appellee.
   Mr. Justice Jett

delivered the opinion, of the court. John L. Hoff, appellee, filed a claim in the probate court of La Salle county against James J. Dougherty, administrator of the estate of John M. Dougherty, deceased, appellant, on a note for $9,800, which had been given by John M. Dougherty and J. L. Bane to the First National Bank of Ottawa. The administrator of the estate of the said John M. Dougherty, deceased, filed objections to the claim on the ground that John L. Hoff, claimant, was not a bona fide holder of the note; that he filed the claim on behalf of Bane the comaker; that the note was paid by Bane and the assignment to Hoff, the claimant, was merely color-able ; and that the claimant is only entitled to contribution from the estate of the said John M. Dougherty, deceased, for one-half of the principal on the note.

The probate court allowed the claim for the full amount and an appeal was prosecuted to the circuit court where the claim was also allowed for the full amount, and a further appeal is prosecuted to this court.

The case was heard in the circuit court upon a stipulation of facts and the testimony of appellee. It appears that John M. Dougherty and Bane executed the note in question to the First National Bank and certain collateral security was put up belonging to Bane; that after the death of Dougherty appellee gave his note secured by the chattels of Bane, and the note in question was indorsed by the bank to him. Appellee subsequently renewed his note to the bank on several occasions and later on filed the note in question against the estate of the said John M. Dougherty, deceased. The evidence discloses the fact that appellee Hoff is the legal holder of the note. His possession is prima facie evidence of that fact. The evidence shows that he gave his own note in payment thereof.

A suit on a promissory note is properly brought in the name of the person in whom the legal title to the note is vested, and it is a matter of no consequence, so far as the defendant is concerned, who may be the equitable owner of the note if he has no defense to it. Caldwell v. Lawrence, 84 Ill. 161.

Possession of a negotiable note is prima facie evidence of ownership by the possessor. Henderson v. Davisson, 157 Ill. 379.

In a suit on a promissory note, proof that the plaintiff has no beneficial interest in the note is not a bar to the suit; it is enough that the plaintiff is the legal holder of the note. Dickinson v. Bull, 72 Ill. App. 75.

Where a promissory note shows an indorsement of the same to the plaintiff by the payee, the suit is properly brought in the plaintiff’s name as the party holding the legal title, and the action cannot be defeated by showing that another person is entitled to the proceeds of a portion thereof. The rights of such person are not prejudiced by the recovery but he may look to the plaintiff. Lohman v. Cass County Bank, 87 Ill. 616.

The mere fact that collateral of Bane secured the note that the appellee gave in payment of the note in question is immaterial in this cause. The note probated against the estate of Dougherty must either be allowed for the full amount or it must not be allowed at all. The court does not have equitable jurisdiction in this case for the reason that it is a legal claim. Bane is not a party to this proceeding and the court could not enter a judgment which would bind him.

It is insisted by the appellant that the estate of John M. Dougherty is insolvent and therefore is only liable for one-half of the note, and that judgment' should have been for only one-half that was due on the note. The note is a joint and several one and it could be placed in judgment against either one or both of the makers thereof. If it was placed in judgment against one of the makers then the one mailing such payment would be entitled to contribution from the other maker. So in this case if the claim is allowed against the estate of Dougherty then the estate would be entitled to contribution against Bane for its share for whatever was paid on the note by the estate, so in no event could the estate be injured by reason of the fact that the note was allowed as a claim against the estate for the full amount.

We are not unmindful of the fact that it is suggested that there is collusion between the appellee and Bane, who is the father-in-law of appellee, with reference to the principal of this note and the filing of the claim against the estate, but as the legal title is in appellee he was entitled to have it allowed against the estate for the full amount and for that reason the judgment of the circuit court will be affirmed.

Judgment affirmed.


text:
    Charles W. Case, Defendant in Error, v. Matthew McKirgan, Plaintiff in Error.
    Gen. No. 7,726.
    1. Specific performance — execution for unpaid balance where subject matter without State. On a vendor’s bill for specific performance of a land contract the court has jurisdiction to order issuance of execution against the vendee for the unpaid balance on the contract, notwithstanding the subject matter of the contract was land situated without the State.
    2. Appeal and error — when-decree affirmed on remittitur. Where on review of a decree on a vendor’s bill for specific performance of a land contract it is conceded that the decree is incorrect in its finding as to the amount due complainant under the contract, for which execution was directed to issue, the Appellate Court will affirm the decree subject to remittitur by defendant in error of such admitted excess.
    Error by defendant to the Circuit Court of Kendall county; the Hon. William J. Fulton, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed with remittitur.
    Opinion filed February 1, 1927.
    E. L. Lyon, for plaintiff in error.
    Mighell, G-unsul & Allen, for defendant in error.
   Mr. Presiding Justice Partlow

delivered the opinion of the court.

Defendant in error, Charles W. Case, filed his bill in the circuit court of Kendall county against plaintiff in error, Matthew McKirgan, for the specific performance of a contract for the sale of real estate. An answer was filed. There was a hearing in open court before the chancellor, a decree was entered as prayed in the bill, and a writ of error has been prosecuted from this court to review the decree.

The facts are practically undisputed and are as follows : The defendant in error resides in Tilbury, Ontario, Canada, was engaged in the real estate business, and had an option on the land described in the bill prior to the date the contract in question was executed. John Higgins resided at Odell, Illinois, and he and Case were engaged in selling Canadian land. Through the efforts of Higgins, plaintiff in error went to Canada, and on July 17, 1920, a written contract was entered into between defendant and plaintiff. The contract price was $23,275, payable $1,000 at the signing of the agreement secured by a note without interest payable October 1,1920, $1,500 secured by a note without interest payable March 1, 1921, and the balance on March 3, 1921. Exchange was to be allowed on all money paid. The land was sold on the basis of 133 acres at $175 per acre, but was to be surveyed and paid for on the basis of the actual acreage. Plaintiff in error was to pay all taxes and assessments after January 1,1921. Time of payment was to be the essence of the agreement, and unless the payments were punctually made, the contract was to be null and void, and defendant in error was to have the right to resell the land. On default in payment of any instalment, the whole purchase money should, at the option of defendant in error, become due and payable. Plaintiff in error was to examine the title at his own expense, was to have 90 days from the date of the contract for that purpose, and was to waive all objections to title not furnished in writing within 90 days. The seller agreed to convey a good title free of incumbrance, but was not required to produce any title deeds or original evidence of title, and if, without default, he was unable to make title then he could withdraw the contract on the payment of the amount paid thereon and the contract should be null and void. The contract was to be closed on March 3, 1921, at the office of defendant in error in Ontario. Should it appear that the title was not good under the laws of Ontario at the time fixed, defendant in error was to have one year in which to make the title good, but the closing of the contract was not to be delayed on account thereof, provided the defendant in error executed a bond in the penal sum of the purchase price, to perfect the title, and to repay the purchase price if he was unable to do so. Possession was to be delivered on March 1,1921. If either party should be in default, the other party was to have the right to enforce specific performance.

Plaintiff in error paid on the contract $4,500, and received a credit of $607.50, being the amount of exchange on American money, making a total credit on March 1, 1921, of $5,107.50. On March 1, 1921, plaintiff in error leased the land to a tenant for one year, who entered into possession under the lease and continued in possession until 1924. In March, 1922, defendant in error tendered to plaintiff in error a deed and demanded payment. Plaintiff in error failed te pay the balance but acknowledged the tender of the deed. During the time the tenant was in possession, Higgins and a son of the plaintiff in error, under the directions of the plaintiff in error, collected the rents, paid the taxes, paid the interest on two mortgages upon the land, made certain repairs and improvements, and, from 1921 to 1924, $2,020.86 remained in the hands of' Higgins as rent for the premises as the property of plaintiff in error.

The only evidence in support of the bill was offered by defendant in error which was substantially in .accordance with the facts as above set forth. At the conclusion of the evidence a decree was entered which found that on March 1, 1921, the day upon which the contract was to be closed, there was due defendant in error $18,167.50, together with interest thereon at the rate of 5 per cent per annum amounting to $3,633.50. The decree directed the payment of these sums by the plaintiff in error within 10 days of the date of the decree, and that defendant in error have execution against the plaintiff in error for these sums together with costs of suit.

The first error urged is that the decree finds the amount due, awards an execution in favor of defendant in error, and makes no provision for the sale of the land. In support of this contention it is insisted that the defendant in error elected to enforce his lien by a bill for specific performance, and having chosen that remedy he was required, under the law, to cause the land to be sold by a decree of court and the proceeds applied in satisfaction of the debt as far as they would go, and if the land did not sell for enough to pay the purchase price, such facts should have been reported to the court, and upon application he would have been entitled to a decree for the deficiency upon which an execution could have properly been issued. It is also insisted that to sustain the decree would be to abolish the distinction between law and equity; that if the defendant in error desired a judgment for the amount due with execution to collect it, an action of assumpsit would have been his proper remedy, but that he cannot accomplish the same thing by a bill in equity.

If plaintiff in error failed to perform his contract and make the payments according to its terms, the defendant in error, provided he was able and willing to perform his part of the contract, had the option to pursue one of three remedies: 1. He might sue in an action at law for the unpaid purchase price, obtain a judgment, and collect it by execution. 2. He might forfeit the contract and compel plaintiff in error to surrender the land. 3. He might, by a bill for specific performance, enforce his lien by a sale of the land to satisfy the balance due, and in the event the proceeds- of the sale were not sufficient to pay the balance due, he might have a decree for the deficiency and execution to collect. Andrews v. Sullivan, 2 Gilm. (Ill.) 328; Burger v. Potter, 32 Ill. 66; Corbus v. Teed, 69 Ill. 205; Wright v. Troutman, 81 Ill. 374; Robinson v. Appleton, 124 Ill. 276; Attebery v. Blair, 244 Ill. 363; Bear v. Fletcher, 252 Ill. 206; Wright v. Buchanan, 287 Ill. 468.

In all of the cases above cited the land was located in Illinois, therefore the court had jurisdiction not only of the person of the defendant, but also had jurisdiction over the land and could order it sold. In this case the court had jurisdiction of the person of the plaintiff in error, but did not have jurisdiction lover the land, and the question arises whether the j|court had jurisdiction to enforce its decree against |he plaintiff in error by execution when it could not border a sale of the land.

Plaintiff in error admits that this .was an executory contract, that the defendant in error had the legal title as security for the unpaid part of the purchase price, and that this was a lien on the land. A court of equity will decree specific performance of a real estate contract when it is valid at law and fairly entered into. Anderson v. Anderson, 251 Ill. 415. It has equal jurisdiction with a court of law to grant appropriate relief and enforce the contract. Zempel v. Hughes, 235 Ill. 424. A_court. of equity, having jurisdiction of a defendant, has power to decree a specifiuiperformalice even where the land is not within the jurisdicfon of the court and the court cannot order it sold. Bevans v. Murray, 251 Ill. 603; Poole v. Koons, 252 Ill. 49. Where a court of equity has jurisdiction it may determine all questions at issue, and it may grant adequate relief, although the relief could also be secured in an action at law. Bourke v. Hefter, 202 Ill. 321. Where a court of equity has jurisdiction of the defendant, who is the vendee, but the land is not within the jurisdiction of the court, the action may be in personam against the person of the defendant to enforce the decree by the equity powers of the court, and the remedy will not be in rem against the property. Johnson v. Gibson, 116 Ill. 294; Hayes v. O'Brien, 149 Ill. 403; Bevans v. Murray, 251 Ill. 603; Poole v. Koons, 252 Ill. 49. A court of equity has all of the powers of a court of law to enforce its decree by an execution against the property of the defendant. Warfield-Pratt-Howell Co. v. Williamson, 233 Ill. 487.

The rule is announced as follows in 25 R. C. L. 325, sec. 141: “In recognition of the fact that a court of chancery cannot affect the title to real estate beyond its borders a distinction has been drawn between suits for specific performance brought byjvendors and those instituted by;__vendees.-- In the latter case the hands of the court are clearly tied because the real estate is beyond its jurisdiction. But in the case of a veydor bringing suit the objection that the land is not within the jurisdiction is of little importance, since the court need only direct that the defendant-pay the purchase price on the plaintiff’s making tender of the conveyance.”

In O. W. Kerr Co. v. Nygren, 114 Minn. 268, 130 N. W. 1112, a suit was brought by a vendor for the specific performance of a real estate contract, the land being located outside of the jurisdiction of the court. The court said: “The further contention, that the court has no jurisdiction of the subject-matter of the action, because the land is located in Canada, is not well taken. It is not necessary, in an action by the vendor for specific performance, that the land, or subject-matter of the contract sought to be enforced, be within the jurisdiction of the court, though the rule is different where the vendee seeks performance by decree of court. In such a case the court cannot decree a transfer of the title of land beyond its jurisdiction ; but where the vendor brings the action, the whereabouts of the land is immaterial. The action is personal, and operates upon the person of defendant. The court requires a delivery to him of a valid conveyance of the land, and decrees that he thereupon pay the purchase price.”

The only manner in which the court could enforce this decree against plaintiff in error was by "execution. The deed to the property had been tendered to plaintiff in error, and was held by defendant in error, for his benefit, to be delivered upon the payment of the balance due under the contract. No question is raised relative to the validity of the contract. Plaintiff in error had been in possession of the land for several years, he had rented the land, collected the rents, paid the taxes, and used the land as his own, but he had refused to complete the contract, pay the balance due, or accept the conveyance. The court had jurisdiction over the plaintiff in error, the decree as entered was within the equity powers of the court, the jurisdiction was ample to enforce the decree by execution against the plaintiff in error, and the decree was not erroneous in this respect.

The decree found that the balance due on the contract was $18,167.50, with $3,633.50 due as interest. It is conceded that these amounts were not correct, and that the correct amounts are $16,704.69, being the balance due on the contract, together with $3,352.94 interest. Defendant in error asks that a remittitur be entered for the difference between these amounts. It has been held in Mulcahey v. Strauss, 151 Ill. 70, and Parmly v. Farrar, 204 Ill. 38, that a remittitur may be entered and the decree affirmed.

The decree will be affirmed upon defendant in error making a remittitur as above specified.

Decree affirmed with, remittitur.