author: Mr. Justice Niehaus

text:
    The W. T. Rawleigh Company, Appellant, v. J. R. Ulm, Appellee.
    Gen. No. 8,528.

      Heard in this court at the October term, 1931.
    Opinion filed November 9, 1932.
    Jesse Heylin and Boyd, Ratcliff & Weber, for appellant.
    Claude E. Chiperfield, Burnett M. Chiperfield and Robert B. Chiperfield, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

This is a suit in assumpsit brought by the W. T. Rawleigh .Company, appellant,- in the ¡circuit court, of Fulton county against the appellee, J. R. Ulm, and S. M. White (who- deceased during the pendency of the suit), to recover the sum of $877.72, claimed by the appellant company to be due under the terms of a credit renewal and guaranty contract alleged toi have been executed by the appellee, Ulm, and S. M. White, now deceased, for J. E. Shawgo, a purchaser of appellant’s goods and products, and delivered to the appellant company by Shawgo, for the purpose of obtaining further credit from the appellant company.

The guaranty contract referred to is as follows:

“Renewal Contract.
“1. This Contract made and entered into at the City of Freeport, State of Illinois, by and between The W. T. Rawleigh Company, an Illinois Corporation, hereinafter called the Seller, and J. E. Shawgo, of London Mills, in the State of Illinois, hereinafter called the Buyer:
“2. Witnesseth: Whereas said Buyer desires to purchase of the Seller, at wholesale, such of its manufactured Products as the Seller shall hereafter determine to sell to the said Buyer; the kind and quantity of which is to be optional with the said Seller;
“3. The Seller agrees to sell and deliver to the Buyer f. o. b. Freeport, Illinois, or at its option f. o. b. its branch houses or at any other point agreed upon, such of its Products as hereinabove specified and .at current wholesale prices, unless prevented by strikes, fires, accidents, or other causes beyond its control; the said Buyer to furnish signed orders for such goods.
“4. The Buyer agrees to pay said Seller the invoice price for all Products so purchased under this agreement, also any balance due the Seller at the date of the acceptance of this renewal contract, by cash, or by installment payments satisfactory to the Seller, subject to the discounts as shown in current Discount Sheets and subject to paragraph 6 hereof.
“5. The Seller will at its option also sell to the Buyer, a wagón or a body suitable for Auto Chassis, for cash, or partly or wholly on time, such as the Buyer may choose from the Seller’s current Wagon Catalog, circulars, or other descriptions.
“6. It is hereby further agreed that either party may at any time before the expiration of this contract by written notice, terminate this agreement and when so terminated, the account then due and owing shall become immediately due and payable. If not so terminated, this agreement shall expire by limitation on the 31st day of December, 1922; and if Buyer refuses and neglects to renew Contract, the full amount due hereunder shall be due and payable promptly.
“7. It is further agreed that if dealings conducted hereunder are mutually agreeable and satisfactory, that a new contract may be entered into for the succeeding year, but the refusal on the part of - the Seller to enter into a new agreement shall not in anywise affect the agreement herein on the part of the Buyer to pay his account.
“8. Seller agrees to purchase from Buyer any Products (Wagon excepted) he may have on hand, and pay or credit Buyer with the wholesale price current when they are received, provided Buyer returns them during the life of contract or promptly after termination or expiration of same, and provided freight is fully prepaid to point Seller designates said Products are to be returned; Buyer to pay Seller the actual expense of inspecting and overhauling same.
“9. It is mutually understood that the Seller will furnish the Buyer from time to time with educational salesmanship literature, consisting of Rawleigh’s Weekly, Guide Book, and other booklets, bulletins, circulars, leaflets and letters of advice and suggestions for the sole purpose of aiding and assisting' Buyer in making sales and collections; but it is expressly agreed that nothing contained in any of the aforesaid literature, letters, booklets, bulletins, leaflets, etc., shall be taken in anywise to alter, modify, change or affect this agreement and shall only be considered as educational and advisory; and it is further expressly understood and agreed that any advice or suggestions contained therein is not to be considered by the buyer as orders, directions or instructions, nor in any way binding on him.
“10. And it is further understood and agreed by and between the parties hereto that this contract includes and does and shall constitute the sole, only and entire agreement between the parties hereto, and further that this Contract cannot and shall not be changed or modified in any particular whatsoever by any employee or representative of the Seller in any capacity, unless any such change or modification shall first be specifically reduced to writing and signed by both óf the parties hereto, and then any such change or modification shall only be effective after the corporate seal of the Seller shall have been duly affixed thereto.
“11. In Witness Whereof, the parties hereto have set their hands and seals, the Seller, in its corporate name by its President thereunto duly authorized, and its corporate seal hereunto affixed, and the said Buyer in his own proper person.
Accepted The W. T. Rawleigh Company
Jan. 2,1922. By W. T. Rawleigh
President
At Freeport, Illinois
(Signed) J. R. Shawgo (seal)
(Buyer Sign Here)
“For and in consideration of the sum of One (seal) Dollar to me in hand paid, and the receipt of which is hereby expressly confessed and acknowledged, or in consideration of the above named Seller extending further credit to the said Buyer, We the undersigned, do hereby jointly and severally guarantee unto said The W. T. Rawleigh Company, the above named Seller unconditionally, the payment in full of the balance due or owing said Seller on account, as shown by its books at the date of the acceptance of this Contract of Guaranty by the Seller, and the full and complete payment of all moneys due or owing, or that may become due or owing said Seller, and all indebtedness incurred by the Buyer under the terms of the above and foregoing instrument by the Buyer named as such therein, and to all of the terms, provisions and agreements contained in said instruments we- fully assent and agree, hereby waiving notice of acceptance by the Seller, of this Contract of Guaranty, and all notice of any nature whatsoever, and agree that the written acknowledgment, by said Buyer of the amount due or owing on his account, or that any judgment rendered against him for moneys due the Seller, shall in every and all respects bind and be conclusive, jointly or. severally, against the undersigned. And we further agree that in any suit brought on this Contract of Guaranty by the Seller no other or further proof shall be required of it than to establish the amount or sum of money due and owing to it from the said Buyer, and when so proven, shall be conclusive and binding upon the undersigned, and further that it shall not be necessary for said Seller in order to enforce this Contract of Guaranty to first institute suit against said Buyer nor exhaust its legal remedies against him. And agree that any extension of the time of payment or payments to said Buyer shall not release us from liability under this Contract of Guaranty.
“It is hereby mutually understood and agreed that this Contract of Guaranty is conclusive and binding on the party or parties who sign it, whether the same is signed by any other party or parties or not, and that any statement or representation made by any person as to the undertakings of the guarantor or guarantors other than as herein expressed, or as to who or how many parties are to sign this Guaranty, shall in no wise affect the rights of the Company; and it is mutually understood that this is to be a continuing guaranty; and any notice in any way affecting the responsibility or liability of the signers hereunto in order to become effective and binding upon the above named Seller, shall be reduced to writing and delivered by registered mail to the office of said Seller, at Freeport, Illinois.
“Responsible men sign this Contract of Guaranty below.
Names (Occupations) (P. 0. Addresses)
(Signed)
J. R. Ulm (Seal) Farmer London Mills, Ill.
S. M. White (Seal) Farmer London Mills, Ill.”

The appellant company’s right of recovery is based upon a declaration which it filed in the case, consisting of a special count declaring on the guaranty contract; also the common counts. In defense, the appellee and S. M. White, now deceased, filed the general issue; also a special plea averring that the contract was in conflict with the statute of frauds; and another special plea averring that the contract was without a valuable consideration; an additional plea verified by affidavits, denying the execution of the contract, was also filed. The case proceeded to trial, and at the conclusion of the evidence adduced and offered by the appellant company, on motion of the appellee the court directed the jury to return a verdict finding the issues for the appellee, which was done, and thereupon the court rendered a judgment in bar of the action. This appeal is prosecuted from the judgment.

A number of errors are assigned for a reversal of the judgment. Error is assigned upon the refusal of the court to admit the guaranty contract in evidence upon the objection of the appellee’s counsel who insisted that there was no sufficient foundation laid for its introduction in evidence; nor sufficient preliminary proof concerning its execution by the alleged guarantors.

J. E. Shawgo, the principal debtor, testified concerning the execution of the guaranty contract, that he signed the contract which he sent to the appellant company; also that he procured the signatures of the two guarantors on the same. His testimony on this point is as follows:

6‘I formerly resided in Fulton County in the vicinity of London Mills. At one time I had some business transactions with the W. T. Rawleigh Company, plaintiff in this case. I think those transactions began somewhere in 1920. I am not sure. They continued a number of months. Those transactions consisted of traveling over the country selling products to farmers. The transactions carried on with the company itself consisted of ordering the products which they kept. I sent orders to the company. Previous to the time I sent the orders, I signed a contract with the company. I signed two contracts. The instrument* which has been marked for identification ‘Plaintiff’s Ex. 2’ looks like one of 'the contracts; and the contract that 1 signed. I cannot say whether or not the signature, J. E. Shawgo, is mine. That signature looks like mine, but I cannot say that it is mine. I sometimes know my own signature and sometimes I don’t. . . . There were guarantors on the contract sent to the company. John was on the first contract I had with the company. There were signers as guarantors on the other contract. They were Mr. Ulm and Mr. White. I wasn’t sitting where I could see them sign it; but they took it and their names afterwards appeared on it. I wasn’t with them when they signed it. I met Mr. White at his home. I was in the room where Mr. White was and he went to his desk and when he handed me the contract his name appeared on it. Mr. Ulm took the contract when he was in the drug' store. He took the contract and I was talking with the proprietor, and directly Mr. Ulm came back, and the contract had his name on it. He was in the store during that time. I had a conversation with Mr. Ulm relative to his signing the contract. I had met him and told him my old contract had expired, and in order to do business with the company, I had to give them a new contract, as the old ones wanted to be released. I asked him if he would sign the contract with me. He said he would help me out. This conversation took place at the Santa Fe depot. We went from there to the drug store. Mr. Ulm went along. I delivered the contract to him, either on the street or I carried it over to the drug store. I had the same conversation with Mr. White. He said the same thing, that he would help me out. That occurred at Mr. White’s store. I sent the contract to the company after I had signed it and Mr. Ulm and Mr. White had signed it.”

J. R. Jackson, the general secretary of the appellant company, identified the guaranty contract as the one which the appellant company received from Shaw-go after his first contract had expired in December, 1921; and under which thereafter the appellant company had shipped invoices for its goods and products upon orders received from Shawgo.

We are of opinion that the foregoing evidence was sufficient prima facie, for the admission of the guaranty contract in evidence. The appellant company had, however, adduced in addition thereto the testimony of witnesses familiar with the handwriting and signatures of Shawgo, Ulm and White, who testified that in their opinion the signatures were genuine. Shawgo also testified concerning orders for goods sent in to the appellant company after the contract had been executed and delivered to the appellant company, as follows:

“I continued to send in orders for goods after the second contract was sent to the company. I don’t remember how long I continued. I quit the company, I think it was in August, about the first of August. I returned to them what goods I had left on hand. It was in August of the second year when the second contract was in force. I don’t know how many different orders I sent to the company. I received goods from the company. ... I received the goods that were sent me by freight over the railroad. They were shipped to London Mills. I received a statement monthly from the company of the account I had with the company. At the time the second contract was sent in to the company I owed a balance to the company. I don’t know what that balance was. At the time of my discontinuance of business with the company I pwed a balance to the company. I dp not know what that balance was. . . . I do not have any recollection as to the exact amount of the balance that is due and owing to the company from me. As near as I can recall it was between $600 and $800.”

Appellee’s counsel moved to strike the latter answer of the witness concerning the amount due the appellant company “because it did not appear that the indebtedness referred to by the witness was incurred under the declaration”; and the court sustained the motion and struck out the answer referred to. This ruling of the court was erroneous inasmuch as it appeared from the testimony of the witness that this was an indebtedness that accrued after the guaranty contract in question had been executed and delivered to the appellant company. “Admissions of the principal debtor concerning the amount due are admissible against his surety or guarantor.” Jones on Evidence (2d Ed.) sec. 238. 1 Elliott on Evidence, sec. 253. Scovill Mfg. Co. v. Cassidy, 275 Ill. 462; People v. Title Guaranty & Surety Co., 156 Ill. App. 488.

■We are of opinion that the refusal of the court to admit in evidence the ledger sheets containing the account of Shawgo, the principal debtor, was also error. The evidence shows the account was kept in the ledger by the appellant company in the usual course of its business with Shawgo; and concerned the goods and products of the company sold to Shawgo on the orders received from him. The preliminary proofs adduced as. a foundation for the admission of the ledger sheets in evidence came within the requirements of the rule announced by the Supreme Court in People v. Small, 319 Ill. 437. See also National Malleable Castings Co. v. Iroquois Steel & Iron Co., 333 Ill. 588, and First Nat. Bank of Stronghurst v. Vaughan, 240 Ill. App. 50.

The court’s refusal to admit in evidence the invoices of the goods and products of the appellant company shipped to Shawgo in compliance with orders from him, and which had been made out and verified regularly in due course of the business of the appellant company, was also error. It was not incumbent on the appellant company, as a matter of preliminary proof, to show that the guarantors had notice of its acceptance of the contract of guaranty as the notice of acceptance was expressly waived by the contract. Nor was it necessary as a matter of preliminary proof, to show the consideration for the contract. This was a matter of defense under the plea raising that issue. Moreover, the contract on its face showed the consideration.

The errors referred to vitally affected the appellant company’s right of recovery and are therefore reversible ; and the judgment is therefore reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Bryan H. Tivnen, Appellee, v. J. O. Gebhart, Appellant.
    Gen. No. 8,649.

      Heard in this court at the April term, 1932.
    Opinion filed November 9, 1932.
    Chester E. King, for appellant.
    John R. Fitzgerald, Thomas R. Figenbaum and Carus S. Icenogle, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case the appellee, Bryan H. Tivnen, sued J. 0. Gebhart, the appellant, in the circuit court of Macon county to recover $1,035, the balance claimed to be due from the appellant for rent of a storeroom situated in the City of Mattoon. The pleading in the case consists of a declaration of one count, setting forth the basis of the appellee’s right to recover under an alleged leasing of the premises; and an additional count filed by leave of court. The appellant in defense pleaded the general issue; also a special plea, averring that the contract of leasing in question was in contravention of the statute of frauds and therefore not enforceable against the appellant. A jury trial was had on the issues involved; but upon the conclusion of the evidence adduced on the trial, the parties to the cause entered into a stipulation by which the case was taken from the jury and submitted for determination to the court. The stipulation is as follows:

“It is "hereby stipulated by and between the parties hereto by their respective counsel, that the jury be dismissed; and that the case be determined by the Court on the evidence submitted and the Court will render a verdict; and either side will have a right to submit propositions of law as of this date to be held by the Court.”

The jury was thereupon dismissed; and the court thereafter, upon consideration of the evidence, made a finding that the appellee was entitled to the sum of $1,035 and rendered judgment therefor. This appeal is prosecuted from the judgment.

There is no controversy about the facts. The appellee as owner leased the premises in question and the appellant became his tenant at first under a written lease executed by the parties for the term of one year, from June 1, 1928, to June 1, 1929, at a rental of $1,260, payable by monthly payments of $105 in advance on the first day of each and every month. The appellant took possession and occupied the premises in question under the lease mentioned for the term stipulated in the lease; and after the expiration of the year was in possession of the premises on July 1,1929, when the appellee proposed to the appellant a new contract for leasing the premises for the ensuing yea,r; that is to say, on July 1, 1929, the appellee in a letter-made the following proposal for a new leasing of the premises for the year following:

‘ ‘ Commencing with the first day of July, 1929, we desire to increase the rent from $105.00 to $115.00 per month. We are losing money on the room at the present rate, as' you know; and we will appreciate your kindness very much. We will be willing for you to have the building for the next year at $115.00 per month, commencing with July 1, 1929.”

This proposal was accepted by the appellant and the next day (July 2) appellant paid the first month’s rent due thereunder; namely, $115; and thereafter during the year commencing the 1st day of July, paid the rent due the remaining months of the year; and thereafter held over as tenant and continued in the occupation and possession of the premises as tenant, paying the monthly rent due- by the terms of the last year’s leasing, until October 1, 1930. Under date of July 11, 1930, however, he sent the following communication to the appellee:

“We have decided to move our store, and will turn the room back to you the first of Aug. Bents are too high.”

To which the appellee replied as follows:

“We have your postal card, dated July 11, saying you have decided to move your store and will turn the room back to us on the first of August, that rents are too high. Of course, this card was a very great surprise to us. You were required to give us a notice of sixty days, as provided by statute, just as we would have to give you sixty days’ notice if we desired the room. The statute requires such a notice from each of us. Therefore, your next month’s rent will be due just as usual on the first of the month of August. We will be glad to make some reasonable arrangements with you if you will protect us against loss and dam-, age. Kindly, therefore, come and see us and we will try to work it out. We will look forward to your immediate reply.”

The appellant made no reply but continued in the possession of the premises and the payment of the rent to October 1, 1930, as stated; and thereafter vacated the premises and refused to pay rent for the remaining nine months of the year.

The appellant on appeal raises two questions of law for reversal of the judgment, namely, a question of variance which arose on the trial, when the appellee offered in evidence the first lease between the parties; and secondly, the contention that the contract for the new leasing was invalid because it contravened the provisions of the statute of frauds; that it was an oral contract and the statute required it to be in writing.

The question of variance arose during the trial when counsel for the appellee offered the first lease made by the parties, in evidence; whereupon the following objection was made to its introduction in evidence :

“The defendant by counsel objects to the admission in evidence of said exhibit, for the reason that there is a variance from the declaration filed by the plaintiff; and for the reason also that it does not tend to prove the issues in this case; and is wholly incompetent, improper and immaterial.”

The court overruled the objections and admitted the lease in evidence.

The objection made'on account of variance was a general objection and did not specify wherein the lease materially varied from the lease set out in the declaration; and the question of variance was therefore not properly raised in the trial court.

“An objection to the admission of evidence on the ground of variance is regarded as waived, unless it is made specifically on that ground, and pointed out to the trial court, so that an opportunity may be given to amend the pleading and obviate the objection.” Thornton v. Hendrickson, 213 Ill. App. 121, and authorities there cited.

Unless the proper objection is made on account of an alleged variance it is waived or cured by verdict. Kent v. Thelin, 195 Ill. App. 440; Pihl v. Springfield Consolidated Ry. Co., 219 Ill. App. 588.

It is also pointed out, concerning the question of variance, that it was again waived by the stipulation entered into by the parties to the litigation at the conclusion of the trial by taking the case from the jury and stipulating that the case should be determined by the court on the evidence which had been submitted.

Concerning the question involving the statute of frauds, it may be said that it is clear from the evidence, and not disputed, that the appellee made a proposal to the appellant on July 1, 1929, that he was willing that the appellant should occupy the premises then occupied by him for the year commencing July 1, 1929, at an increased rental of $115 per month, which proposal was accepted by the appellant the next day, by paying the increased rental of $115 for the month of July, by check dated July 2,1929. It is clear from the evidence that the appellant continued to make his payments of $115 rent monthly thereafter for the balance of the year, and that the contract for the new leasing was performed within the year. It also appears from the evidence, and is not disputed, that after the expiration of the year in question the appellant continued to occupy the premises as tenant and paid the same rental of $115 per month until October 1, 1930; and that thereafter refused to pay any rent for the premises.

Concerning the question involving the statute of frauds, it is pointed out that it is clear from the evidence that the new contract of leasing referred to, which was consummated by the appellant’s acceptance by payment of the rent due thereunder on July 2,1929, was to be performed within the year commencing July 1, 1929, which had already commenced when he accepted the appellee’s proposal; and that therefore it was not in contravention of the provisions of the statute of frauds, Cahill’s St. ch. 59, ¶ 1; sec. 1, ch. 59, Smith-Hurd Revised Statutes.

Furthermore, the evidence shows that the lease contract referred to was fully performed by both parties. “The Statute of Frauds cannot be invoked to avoid a contract which has been carried into execution.” Cleveland, C., C. & St. L. Ry. Co. v. Wood, 189 Ill. 352; Pearce v. Pearce, 184 Ill. 289.

By holding over and occupying the premises as tenant without any new agreement, he became a tenant for another year and the law implied an agreement to hold upon the terms of the prior lease. Pangborn v. Blakely, 217 Ill. App. 68; Goldsborough v. Gable, 140 Ill. 269; Weber v. Powers, 213 Ill. 370; Barbee v. Evans, 220 Ill. App. 154; Goldsborough v. Gable, 152 Ill. 594; Board of Directors, Chicago Theological Seminary v. Chicago Veneer Co., 94 Ill. App. 492; Kelly v. Armstrong, 139 Ill. App. 467.

The appellant, by holding over therefore, became liable for the amount of monthly rental for the remaining nine months of the hold-over year.

The finding and judgment of the court is in accordance with the law and the evidence; and the judgment is therefore affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Wilson

text:
    Phylliss Reule, Appellee, v. City of Chicago, Appellant.
    Gen. No. 35,719.

      Heard in the third division of this court for the first district at the February term, 1932.
    Opinion filed November 16, 1932.
    William H. Sexton, Corporation Counsel, and Alexandee M. Smietanka, City Attorney, for appellant; E. A. Moynihan and Carl J. Appell, Assistant Corporation Counsel, of counsel.
    Earl J. Walker, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

The plaintiff, Phylliss Reule, brought her action against the City of Chicago, a municipal corporation, in a plea of trespass on the case. The declaration charged that on March 6, 1929, the defendant was a municipal corporation and was possessed of and had control and supervision over a certain public sidewalk at or near the corner of Ashland avenue and Irving )P.ark boulevard, two intersecting streets in the City of Chicago,; that located upon said streets were certain jtijqes .overhanging -the sidewalks and that the branches (of these tr(ees had beeoine rotten and decayed, of which condition the defendant knew or should have known ppd thgt, -by ijeason thereof, the sidewalk was ren'der,qd .unsafe to .pedestrians passing ¡underneath the ]brgnch(es ,of said trees.; ¡thfit {while the plaintiff, who .was rightfully .upon the street .at ¡the place aforesaid, .was passing ’along said Ashland avenue and Irving Park boulevard at the intersection she was, through no fault or want of care on her part, struck by one of the branches falling upon her and by reason thereof was greatly injured. The declaration also contained an averment that a notice in writing, as provided by law, was served upon the City of Chicago, giving the name of the person injured together with her address, the date and hour of the accident and the location at the corner of Ashland avenue and Irving Park boulevard in the City of Chicago. To this declaration the defendant filed a plea of the general issue and a trial was had resulting in a verdict in favor of the plaintiff and judgment upon the verdict in the amount of $10,000, from which judgment this appeal has been prayed and allowed to this court. A motion in arrest of judgment was made and overruled and it is argued here that the declaration was insufficient in that it failed to allege and prove that the plaintiff was in the exercise of due care and caution for her own safety at the time of the accident. No demurrer was filed to the declaration and it is the settled rule of this State that after verdict every intendment is in favor of the pleader and if there is anything in the declaration tending to show a necessary averment, it will be sufficient. The Supreme Court of this State in the case of Gerke v. Fancher, 158 Ill. 375, in its opinion, says:

“Before verdict the intendments are against the pleader, and upon demurrer to a declaration nothing will suffice, by way of inference or implication, in his favor. But on motion in arrest of judgment — and the same thing is true where the defect is sought to be availed of on error — the court will intend that every material fact alleged in the declaration, or fairly and reasonably inferable from what is alleged, was proved at the trial, and if, from the issue, the fact omitted and fairly inferable from the facts stated in the declaration may fairly be presumed to have been proved, the judgment will not be arrested.”

The declaration contains the express averment that the accident happened by reason of the negligence of the defendant “through no fault or want of care on her part,” meaning the plaintiff. We are of the opinion that this allegation is sufficient after verdict to support the declaration. It is not a statement of a mere conclusion of law, but is a statement of fact.

We cannot agree with the defendant that it owed no obligation to pedestrians using the street to protect them against injury from falling limbs of trees located on the highway. The Cities and Villages Act, Cahill’s St. ch. 24, ¶¶ 65(7)-65(10), gave the power to the defendant to lay out, establish, and improve streets and to plant trees upon the same. In the event any of such trees became a menace to pedestrians, by reason of becoming rotten or decayed, the city had the power to remove the same and was, moreover, under a duty and obligation so to do, if the circumstances warranted it. The duty to maintain its sidewalks in a reasonably safe and proper condition applies not only to the sidewalks, but as well to the trees located on the street, and this rule is recognized not only in this State but generally wherever cities are charged with the control of its streets and highways. City of Mt. Carmel v. Shaw, 155 Ill. 37; City of Indianapolis v. Slider, 56 Ind. App. 230; Lundy v. City of Sedalia, 162 Mo. App. 218.

From the facts it appears that the plaintiff lived at 4026 North Ashland avenue, a few doors north of Irving Park boulevard where the accident happened, and had resided at that address for several months prior to the happening of the accident. On the day in question plaintiff walked to the corner for the purpose of mailing a letter and while she was in the act of doing so, a limb from one of the trees, eight or nine inches in diameter, fell and struck her on the skull. There was evidence that the limb was decayed and rotten, indicating that this condition had existed for a considerable length of time. There was testimony on behalf of the plaintiff that it was an ordinary windy March day. Defendant introduced the monthly weather report of the department of agriculture from which it appeared that the maximum wind velocity. was 39 miles per hour.

It is insisted that the plaintiff, by reason of her having lived in the neighborhood, was or should have been cognizant of the condition of the trees and that she was guilty of contributory negligence in passing under them under the circumstances in evidence. It is not negligence per se for a pedestrian to use a sidewalk' even though he may have knowledge of a defect therein, nor can it be said as a matter of law that the plaintiff was guilty of contributory negligence in passing under the tree with knowledge that the limb was in poor condition and liable to fall. The question of contributory negligence under such circumstances is one 1 which must be left to the jury and it may and should take into consideration facts showing the knowledge of the injured person in arriving at its conclusion as to whether or not such injured person at the time of the accident was in the exercise of due care and caution for his or her own safety. City of Mattoon v. Fatter, 217 Ill. 273. The Supreme Court in its opinion in that case said:

“It is, however, well settled law in this State, that, where a man knows of a defect .in a sidewalk and walks thereon, his doing so with such knowledge is not negligence per se, as matter of law. The fact, that he goes upon the sidewalk with knowledge of the existing defect, is a circumstance to be taken into consideration by the jury with all the other facts and circumstances in determining the question, whether he was guilty of contributory negligence. The same is true as to the fact that he might have taken another route to reach his destination than the one which he actually pursued. The fact, that it was possible for him to take such other route, is merely a circumstance to be taken into consideration by the jury in determining the question of contributory negligence, and is not evidence of negligence per se, as matter of law. All the law requires of a man, going upon a public sidewalk with knowledge that it is defective, and with knowledge that there is another way of going, is that he shall be in the exercise of ordinary care for his own safety.” To the same effect see Wallace v. City of Farmington, .231 Ill. 232.

The declaration charged that the accident happened on the sidewalk at or near the corner of Ashland avenue and Irving Park boulevard in the City of Chicago. Upon the trial the City was subpoenaed to and did bring in the original notice served upon it. This notice, in addition to the fact stated in the declaration as to where the accident happened, bore the, lead pencil notation, “1ST. E.” which indicated the northeast corner. The accident as a matter of fact happened at the northeast corner of Ashland avenue and Irving Park boulevard, but it is insisted that the notice served on the City differs from the notice set out in the declaration and that the notice in the declaration was not sufficient. There is no material variance. between the notice and the declaration. The actual notice when produced more specifically designated the place where the accident occurred than did the declaration, but there was no variance between the two. Moreover, it has been held that the designation “at or near the corner of” is sufficient under the statute. It was not intended that such a notice should serve to entrap the plaintiff who had a meritorious cause of action if it was sufficiently definite to give the City notice as to where the accident happened. McComb v. City of Chicago, 263 Ill. 510,

Objection is taken to the fact that the X-ray picture introduced in evidence contained marks placed thereon, indicating where the fracture of the skull was shown. At the time this picture was introduced in evidence it was fully explained by whom and for what purpose the marks were placed on the picture and no objection was made to its introduction. The witnesses testified from the picture as it was, but the defendant sought to have it excluded at the end of plaintiff’s evidence. This objection came too late. The trial court did not commit reversible error when it refused the request.

Plaintiff testified that she was struck in the temporal region of the head and her left side and arm were bruised; that she suffered great pain and was in bed for three weeks with a trained nurse and had to give up her position as manager of an apartment building; that during the three weeks clamps were upon her head; that the pain has continued and her head continually hurts; that intense pain continued for over six months after the accident and she has continuously suffered from headaches which last two or three days and has to resort to sedatives to alleviate the pain; that prior to the accident her health was good.

It is insisted that the verdict is excessive, but we are of the opinion that the amount is not so great as to indicate passion or prejudice on the part of the jury which would warrant a reversal.

For the reasons stated in this opinion the judgment of the circuit court is affirmed.

Judgment affirmed.

Hebel and Hall, JJ., concur.


text:
    Isabel Lyman, Appellant, v. George R. Lyman, Appellee.
    Gen. No. 35,744.

      Heard in the third division of this court for the first district at the February term, 1932.
    Opinion filed November 16, 1932.
    Rehearing denied December 1, 1932.
    John A. Nash and Harry S. Earned, for appellant.
    Knapp, Beye, Allen, Cochran & Cushing, for appellee ; Paul R. Conaghan, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

Action for the payment of instalments due under a separation agreement entered into between the plaintiff and the defendant on July 14, 1925. The agreement recites that it was entered into in the State of New York and that the parties to the agreement are husband and wife; that they were married April 30, 1907, at Philadelphia, Pennsylvania, and at the time of the agreement were living separate and apart; that upon the signing of the agreement neither shall molest or disturb the other, and their manner of living shall not be ground for legal action on the part of either; that the wife relinquishes her right of dower so long as the husband performs his part of the agreement; that in consideration of the agreement the husband shall pay the sum of $150 per month to the wife for her support; that in the event the wife should thereafter obtain a divorce and remarry, all payments under the agreement to cease upon her remarriage.

Plaintiff introduced evidence in support of her contention that certain instalments under the agreement were due and unpaid. At the end of the plaintiff’s evidence the court directed the jury to return a verdict in favor of the defendant. During the course of the plaintiff’s testimony she was handed a document which purported to be a certified copy of a decree of divorce obtained by her against her husband on October 20, 1927, in Montgomery county, Pennsylvania. She was asked whether she had obtained such a decree, to which she replied in the affirmative. Thereupon the document was offered by the defendant and received in evidence. This was error. It was admissible only upon the presentation of defendant’s case.. It was proper to have it identified for the purpose of making it admissible, but it was' not proper to present or receive the document in evidence Until offered by the defendant at the proper time. We do not consider, however, that the decree affects the rights of the plaintiff. It was a default decree and contains no provision for alimony, nor does it subject the defendant to the payment of any moneys to the wife. The separation agreement itself was valid and not contrary to public policy. It was entered into according to its terms after the parties had separated and were living apart. It contained a provision under which the husband was obligated to support the wife and the courts have recognized the right of a husband and wife to enter into an agreement to live separate and apart, provided provision is made for the wife’s support in the agreement. Galusha v. Galusha, 116 N. Y. 635; Hirschthal v. Hirschthal, 134 N. Y. Misc. 479; French v. French, 302 Ill. 152; Patterson v. Patterson, 111 Ill. App. 342; Van Koten v. Van Koten, 323 Ill. 323.

The agreement contemplated that either party might thereafter obtain a divorce, if just cause arose, but this did not vitiate the agreement, nor would the obtaining of a decree by the wife amount to a waiver of her right to support under the agreement. The parties themselves by their agreement contemplated such a possibility, and provided that in the event the wife should thereafter remarry, then, and then only, the payments should cease. The obtaining of the divorce did not terminate the agreement, inasmuch as no provision was made in the decree for support. If a provision for alimony had been made, it may be that the separation agreement would have become merged in the decree. Galusha v. Galusha, 116 N. Y. 635; Hirschthal v. Hirschthal, 134 N. Y. Misc. 479; Patterson v. Patterson, 111 Ill. App. 342.

We see nothing in the agreement contrary to the policy of this State nor the State of New York, where the contract was entered into.

The case of Lyons v. Schanbacher, 316 Ill. 569, hinged upon the proposition that no obligation was created whereby the husband should support the wife. White v. White, 266 Ill. App. 210, is not in point. We agree with the rule that the husband cannot by contract relieve himself of a liability created by law whereby he is obligated to support his wife. In the case at bar, however, it appears from the agreement on which this action is predicated that the husband did obligate himself to support the wife and is, therefore, distinguishable from the class of cases cited by the defendant.

The court erred in instructing the jury to find the issues in favor of the defendant at the close of plaintiff’s case.

For the reasons stated in this opinion, the judgment of the municipal court is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded.

Hebel, J., concurs.

Hall, J., not participating.


author: Me. Presiding Justice Wilson

text:
    A. J. Oosterbeek Motor Company, Inc., Appellant, v. Thomas P. Joy, Appellee.
    Gen. No. 35,775.
    Heard in the third division of this court for the first district at the February term, 1932.
    Opinion filed November 16, 1932.
    Baker, Holder, Schmidt & Kolb, for appellant.
    No appearance for appellee.
   Me. Presiding Justice Wilson

delivered the opinion of the court.

June 6, 1931, plaintiff sold to the defendant a Chevrolet car. The purchase price was $612.50. On the same day the defendant paid the plaintiff $12.50 in cash and a cashier’s check for the sum of $600 in payment of the car. This check had been purchased by the defendant from the Auburn Park Trust and Savings Bank, located at 734 West 78th street in the City of Chicago. This transaction occurred in the afternoon of Saturday, between 3:30 and 3:45 p. m. This was after banking hours. The following Monday, which was June 8, 1931, plaintiff deposited said cashier’s check in the Halsted Street State Bank located at 6910 South Halsted street, Chicago. The distance from plaintiff’s place of business to the Halsted Street State Bank was approximately nine blocks and the distance from the plaintiff’s place of business to the Auburn Park Trust and Savings-Bank was approximately three and one-half blocks. At sometime between 10:00 a. m. and 10:30 a. m. on June 9, 1931, the Auburn Park Trust and Savings Bank was closed by the State auditor. The plaintiff carried its account and did business with the Halsted Street State Bank, and claims, and the record shows, that the deposit was made on Monday morning at the earliest opportunity with its bank for collection in the regular course of business; that this check cleared through the clearing house and was presented in turn to the Auburn Park Trust and Savings Bank at the earliest opportunity; that the plaintiff, having acted in the regular course of business, without delay, should not be held responsible for the nonpayment by that bank of the cashier’s check in question and that the loss should be that of the defendant.

The cause was tried by the court without a jury, resulting in a finding of the court in favor of defendant. The court stated in arriving at his finding that there had been a number of bank failures and that the court should take that fact into consideration in arriving at his opinion as to what constituted due diligence. The fact that there had been a number of bank failures in the City of Chicago does not change the existing rule of law that the plaintiff was only required to use due diligence in the presentation of the check. Under the facts as shown by the record, this was done by the plaintiff in depositing the check in its own bank for collection at the earliest opportunity. The circumstances may have been exceptional, but we are inclined to adhere to the rule. It is a well recognized fact that men in business are in the habit of depositing checks in banks with which they do business, for collection. In the case at bar, this was done on the Monday after the Saturday upon which it was received. The Negotiable Instruments Act provides that a reasonable time must be determined from (a) the nature of the instrument; (b) the usage of the trade or business with respect to such instruments; and (c) the facts of the particular case. Cahill’s St. ch. 98, ¶ 215.

It has been held that the same degree of diligence was not required by the holder of a cashier’s check as would be required of one holding an individual or ordinary check issued by the drawer on his own account. Marbourg v. Brinkman, 23 Mo. App. 511. The reason of this rule is obvious, viz., that the check of the bank is a better and safer risk than that of an individual.

We have not been aided in our consideration of this cause by briefs filed on behalf of the defendant. There is no controversy as to the facts.

For the reasons expressed in this opinion the judgment of the municipal court is reversed and judgment entered here for the plaintiff for the sum of $600.

Judgment reversed and judgment here.

Hebel and Hall, JJ., concur.


author: Mr. Justice Hall

text:
    Ambros Haase et al., Appellants, v. Frank P. Danisch et al., Appellees.
    Gen. No. 35,282.
    Heard in the third division of this court for the first district at the June term, 1931.
    Opinion filed November 16, 1932.
    Rehearing denied December 1, 1932.
    Gallagher & McDevttt and Shulman, Shulman & Abrams, for appellants; Vincent C. Gallagher and Meyer Abrams, of counsel.
    Gustav E. Beerly, for appellee Empire Trust & Savings Bank;
    Follansbee, Shorey & Schupp, for appellee Suburban Trust & Savings Bank; Clyde E. Shoret, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

This is an appeal by the complainants from a decree of the superior court of Cook county, dismissing a bill for want of equity, filed by complainants, Ambros Haase and Konstancia Haase, brought against Frank P. Danisch, Suburban Trust and Savings Bank, Garfield State Bank and Empire Trust and Savings Bank, as to Suburban Trust and Savings Bank, Garfield State Bank and Empire Trust and Savings Bank, wherein complainants seek the cancellation of a declaration of trust, in which Danisch was trustee, to discover the trust funds alleged to have been fraudulently converted by him and to follow the funds in the hands of the several banks, and to impress a lien thereon in favor of complainants.

On the 18th day of February, A. D. 1929, complainants, Ambros Haase and Konstancia Haase, executed what is referred to as a “Declaration of Trust” by which they conveyed to one Frank P. Danisch for the consideration of $1, certain trust deeds on real estate given to secure certain promissory notes, “to hold, control, and manage the said personal property, to sell same, and to invest the proceeds and to reinvest same, and to control and receive the issues, income, interest, profits, dividends, or any other income therefrom, and after paying all proper charges and expenses arising from time to time, including the legal fees allowed trustees under the law of the State of Illinois, to pay over the moneys in his possession as such trustee, less the charges and expenses aforesaid, as hereinafter provided.” Among other provisions contained in such document is the following: “The grantors hereby reserve the right to receive all income from the said personal property during their lifetime, and also the right to revoke this trust upon giving the said trustee a reasonable notice thereof.”

On February 26, 1929, Danisch sold and delivered to the Suburban Trust and Savings Bank at a discount of 1 per c.ent certain of the trust deeds mentioned in the trust agreement, and received therefor its cashier’s check for $9,175.81, payable to the order of “Trustee for Ambros Haase and Konstancia Haase, Husband and Wife, under Trust Agreement dated February 18, 1929.” At the time Daniseh received this check, he had an open account with the Empire Trust and Savings Bank in his individual name. After receiving the cashier’s check from the Suburban Trust and Savings Bank, Daniseh indorsed it as follows: “Mr. Frank P. Daniseh, Trustee for Ambros Haase and Konstancia Haase, Husband and Wife, under Trust Agreement dated February 18, 1929”; he also indorsed it “Frank P. Daniseh.” Upon presentation of this check to the Empire Trust and Savings Bank, the bank paid to Daniseh $2,000 in cash and credited his individual account with $7,175.81, making his balance on that date $9,183.06. At this time, Daniseh was personally indebted to the Empire Trust and Savings Bank. On the 2nd day of March, 1929, this indebtedness amounted to $5,094.60, secured by collateral, — a trust deed and notes aggregating $12,333.66. Out of the funds then in the account of Daniseh, on March 2, 1929, the Empire Trust and Savings Bank, at the direction of Daniseh, charged him with the sum of $5,094.60, the amount of his indebtedness, and returned to him his collateral held on account of this loan.

The check of the Suburban Trust and Savings Bank for $9,175.81 was paid to the Empire Trust and Savings Bank through the Chicago Clearing House.

On February 18, 1929, Ambros Haase and Konstancia Haase directed a letter to the defendants, Car-field State Bank, as follows:

“The undersigned, holders of first mortgage on premises at 308 S. Kostner Avenue, for $5,000, hereby authorize Frank P. Daniseh as their attorney to collect all interest on same when due, and to sell said mortgage to any person or persons or to your bank at the usual discount.”

On the 18th day of March, 1929, this letter was presented to the Garfield State Bank by Danisch, and Danisch sold and delivered the above mentioned mortgage to the Garfield State Bank at a discount of 1 per cent, receiving therefor two checks signed by L. E. Woodruff, Cashier, payable to “Frank P. Danisch, Atty., ’ ’ the checks being dated March 18, 1929, one for the sum of $400 and one for the sum of $4,551.67. The check for $4,551.67, indorsed “Frank P. Danisch, Atty., and Frank P. Danisch” was deposited to Danisch’s account with the Empire Trust and Savings Bank, and the check for $400 was cashed for him by the banking firm of Hatterman & Glanz. Neither of the amounts received by Danisch on the last mentioned cheeks was paid to complainants, except one payment of interest. None of the funds referred to was ever paid to Ambros Haase or Konstancia Haase, other than those mentioned.

In his report, the master found that neither the Suburban Trust and Savings Bank nor the Garfield State Bank was in any way liable or responsible for the misapplication of funds derived by Danisch from these checks, but found that the Empire Trust and Savings Bank was liable for the amount paid to it on account of the indebtedness owed by Danisch to this bank, to wit: $5,094.60. Exceptions were filed to the master’s report, and on a hearing before the court, the court overruled the master in so far as the master held that the Empire Trust and Savings Bank was liable,' and dismissed the bill as to all of the banks for want of equity. There was nothing in the character of the indorsement on the check received from the Garfield State Bank, even though it had the word “Atty.” after the name, which would tend to put the Empire Trust and Savings Bank on notice as to the character of the check, but this cannot be said of the check received from the Suburban Trust and Savings Bank. The Empire Trust and Savings Bank was clearly advised that these latter funds were in the hands of Daniseh as trustee under the terms of the trust agreement hereinbefore referred to. This bank received these funds with full notice of the fiduciary character by which Daniseh held them.

According to the record, at the time the Suburban Trust and Savings Bank check was deposited, the Empire Trust and Savings Bank paid Daniseh $2,000 in cash and very shortly thereafter saw to it that its own debt was paid out of those funds. To put it mildly, the officials of this bank who had to do with this transaction, after being fully advised by the indorsement on the check of the maimer in which the funds were held, participated in the misappropriation of these funds by Daniseh.

In Massachusetts Bonding and Insurance Co. v. Standard Trust and Savings Bank, 334 Ill. 494, the Supreme Court of this State said:

‘ ‘ The settled rule is, that if a depositor seeks to pay his own debt to the bank by an appropriation of the funds to his credit in a fiduciary capacity, the bank is affected with knowledge of the unlawful character of the appropriation and will be compelled to refund. (Fifth National Bank v. Village of Hyde Park, 101 Ill. 595; Morse on Banks and Banking.) The reason for the rule is that the bank has knowledge that the check is in payment of the trustee’s private debt. The bank officials may be said to have knowledge of the character of a transaction when a reasonably intelligent person would have such knowledge. It makes no difference how plaintiff in error obtained that knowledge if the evidence shows, as in this case, that the checks were an unlawful appropriation of the trust funds. When plaintiff in error permitted checks to be drawn on that account payable to itself and applied the same in payment of Joyner’s indebtedness due'it, it was participating in and aiding Joyner in committing a breach of trust and was responsible therefor. State Nat. Bank v. Reilly, 124 Ill. 464; 3 Pomeroy’s Eq. Jur. Sec. 1079; Duckett v. National Mechanics Bank, 86 Md. 400, 38 Atl. 983; Allen v. Puritan Trust Co., 211 Mass. 409, 97 N. E. 916; Munnerlyn v. Bank, 88 Gra. 333, 14 S. E. 554; Board of Chosen Freeholders v. Newark City Bank, 48 N. J. Eq. 51, 21 Atl. 185; 1 Morse on Banks and Banking, sec. 317; Swift v. Williams, 68 Md. 237, 11 Atl. 835.”

Section 1079, Volume 3, Pomeroy’s Equity Jurisprudence, reads as follows:

“It might be supposed that the term ‘breach of trust’ was confined to willful and fraudulent acts which have a quasi criminal character, even if they have not been made actual crimes by statute. The term has, however, a broader and more technical meaning. It is well settled that every violation by a trustee of a duty which equity lays upon him, whether willful and fraudulent, or done through negligence, or arising through mere oversight or forgetfulness, is a breach of trust. The term therefore includes every omission or commission which violates in any manner either of the three great obligations already described: of carrying out the trust according to its terms, of care and diligence in protecting and investing the trust property, and of using perfect good faith. This broad conception of breach of trust, and the liabilities created thereby, are not confined to trustees regularly and legally appointed; they extend to all persons who are acting trustees, or who intermeddle with trust property. In order that a trustee may be personally liable for a breach of trust, he must be sui juris.”

This court is, therefore, of the opinion that the superior court of Cook county was in error in its decree in overruling the complainants’ exceptions to the master’s report, and in sustaining the exceptions of the defendant, Empire Trust and Savings Bank, to the master’s report, and holds that the Empire Trust and Savings Bank is liable to account to said complainants for the entire amount of the deposit made by Danisch on February 28, 1929, in the sum of $9,175.81. It is, therefore, ordered that this cause be reversed and remanded and that the superior court enter a decree in accordance with this opinion, to wit: that a money decree be entered against Frank P. Danisch for the sum of $15,958.51, the amount found to be due by Danisch to complainants, with interest from April 23, 1931, and that a money judgment be entered against the Empire Trust and Savings Banlc for the sum of $9,175.81 with interest from February 26, 1929. In all other respects, the decree of the superior court is affirmed.

Affirmed in part, .reversed in part, and remanded with directions.

Wilson, P. J., and Hebel, J., concur.


text:
    The National Bank of the Republic of Chicago, Defendant in Error, v. Otto E. Schmidt et al., Plaintiffs in Error.
    Gen. No. 35,327.

      Heard in the third division of this court for the first district at the October term, 1931.
    Opinion filed November 16, 1932.
    Rehearing denied December 1, 1932.
    Cassels, Potter & Bentley and John. J. Sherlock, for plaintiffs in error A. Fred Kabana and B. F. Meservey; Ralph F. Potter, John J. Sherlock, George C. Bunge and Ralph Horween, of counsel.
    Arthur J. Hughes, for defendant in error; Reginald A. Bullinger, Richard A. Griffin and Frank Michels, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

By this writ of error it is sought to reverse a judgment of the superior court of Cook county in favor of the National Bank of the Republic, plaintiff, and against the defendants for the sum of $48,028.30. The judgment was entered by confession upon a judgment note for principal, interest and attorneys’ fees. Upon motion entered to vacate this judgment, the court allowed it to stand, but permitted defendants to plead. Pleas of the general issue, fraud and false representation in procuring the execution of the note, and a total lack and failure of consideration were filed. Issues were joined on the declaration, pleas and special similiter and replication filed by plaintiff. The cause was submitted to a jury, which returned a verdict in favor of plaintiff, upon which verdict the aforementioned judgment was entered. It is contended by the defendants that the note signed by them was obtained by false representations made by one Max Steiner, ■ who was a vice president of the plaintiff bank and a fellow director with these defendants in the Laramie State Bank. It is charged that Steiner represented to the defendants, prior to the signing of the note, that the Laramie State Bank had an overdraft with the plaintiff bank approximating the amount of the note sued on, and that this overdraft, together with certain withdrawals made by the president of the Laramie State Bank brought about the insolvency of the Laramie State Bank; that the debt to the plaintiff bank was the individual indebtedness of the president of the Laramie State Bank, and that the note was procured by fraudulent representation and that there was no consideration therefor. This writ of error is being prosecuted by two of the defendants, B. F. Meservey and A. Fred Kabana.

The note sued on is dated Chicago, December 9, 1929, and is for $43,000, payable to plaintiff bank, and is signed by all of the defendants, then directors of the Laramie State Bank, including Carl Mueller who was president and managing officer. Prior to this time, the Laramie State Bank, after an examination by the auditor of public accounts; had been declared to be insolvent, and- the directors had been notified that unless a certain amount of money was put into this bank and certain paper taken out, the bank would be closed. At this time, Mueller, the president of the Laramie State Bank, had on deposit with the plaintiff bank a large amount of collateral, most of it being the property of the Laramie State Bank, which he had unlawfully withdrawn therefrom, which collateral was held by the plaintiff bank to secure the payment of Mueller’s note, which with interest, then amounted to approximately $43,000,

On December 9, 1929, the date of the note sued on, the defendants, in order to meet the demands of the auditor of public accounts, executed a document by which they severally agreed to advance in cash and securities to the Laramie State Bank “in such manner as might be necessary to result in the Laramie State Bank receiving the sum of $157,085.52,” in order to remove from the Laramie State Bank notes aggregating that amount, ‘ ‘ and further the sum of $42,914.48 to obtain certain collateral” from plaintiff bank. The “collateral” here referred to was made up of the securities deposited with plaintiff bank by Mueller to secure the payment of his. note to the plaintiff bank. By this agreement B. Gf. Anderson, Sam Spitzer and Edward W. Kaiser were appointed to act as trustees in obtaining the notes and other collateral and securities, and to have this collateral transferred to them as trustees, and the agreement provided that the beneficial interest therein in the various signers of this agreement should be in proportion to the amount set after their respective signatures. This draft of agreement contained the following:

“This agreement is a mere temporary memorandum and will be executed in regular form as soon as possible.”

After each signature to the document there appeared the amount each signatory pledged in order to raise the amount necessary to meet the demands of the auditor of public accounts. Thereafter a further and more formal agreement was entered into by these people concerning the same matter and was signed by the same persons. In furtherance of these agreements, Mueller and the various signers of the agreements and of the note in question, together with the trustees mentioned, caused the various documents held by the plaintiff bank as collateral security to be delivered to the Noel State Bank to be held by it for the trustees for the benefit of the signatories to the agreement referred to. The giving of the note sued on to the plaintiff bank was without doubt made, executed and delivered for the purpose of procuring from the plaintiff bank the release of these securities for the benefit of the parties to this agreement, the makers of the note sued on. A certified check was issued by the plaintiff bank to the makers of this note, indorsed by them and returned to the National Bank of the Republic, in furtherance of this purpose.

There is considerable evidence to the effect that at various meetings of the directors of the Laramie State.. Bank, at which officers of the plaintiff bank were present, it was stated that there was an overdraft by the Laramie State Bank on the National Bank of the Republic, and that the giving of the note in question was for the purpose of taking up the overdraft. It makes little difference whether these statements were true or not. These men were all directors of the Laramie State Bank, and could very easily have ascertained whether this statement was correct or not. On the trial defendants offered proof tending to show that the makers of this note were unfamiliar with banking affairs because of their various vocations, lacked familiarity with banking procedure, and for this reason were not required to use the degree of care which might be required of more sophisticated persons to ascertain whether their note was to take care of an overdraft of the Laramie State Bank, or the note of Mueller. If these men were so unsophisticated as suggested, they certainly had no right to act as directors of the Laramie State Bank, thus becoming trustees of other peoples’ money, which was lost by the failure of the bank. The fact is undisputed that the plaintiff bank upon receipt of the note in question and the return of the check indorsed by the makers of the note to the plaintiff bank, released all the seenrities herein referred to for the benefit of the parties to the contract, the makers of the note sued on. There was ample consideration for the making of the note, and the evidence fails to disclose that there was any fraud in the transaction.

The judgment of the superior court is affirmed.

Affirmed.

Wilson, P. J., and Hebel, J., concur.


text:
    Palmer Grill, Inc., Complainant, Appellee, v. Alex Nory et al., Defendants. Interlocutory Appeal of Alex Nory et al., Defendants, Appellants.
    Gen. No. 36,145.
    Heard in the third division of this court for the first district.
    Opinion filed November 16, 1932.
    Edelson, Latter & Wise, for appellants; Cameron Latter, of counsel.
    D. G. Michalopoulos, for appellee; David B. Rothstein, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

This is an appeal from an interlocutory order of the circuit court, that an injunction issue against appellees restraining and enjoining them and each of them from foreclosing a certain chattel mortgage; from taking possession of complainant’s place of business, property, fixtures and equipment therein; from proceeding upon a certain judgment and a levy thereon and from prosecuting a certain replevin suit commenced by one of the defendants against complainant. The injunction was issued pendente lite and without notice to the defendants. The verification to the bill of complaint upon which the injunction order issued is as follows:

“State of Illinois ) County of Cook j ss‘
“Nick Palmer, being first duly sworn on oath says that he is the agent and attorney in fact of the Palmer Grill, Inc., a Corporation, the complainant in the foregoing Bill of Complaint; that he has read the said Bill and understands the contents thereof, and that the several matters and things therein stated and alleged are true in substance and in fact; except as to such matters as are stated on information and belief, and as to such matters he believes them to be true.
Nick Palmer
‘ ‘ Subscribed and sworn to before me this 8th day of June, A. D. 1932.”

. As stated by this court in Grabowski v. MacLaskey, 257 Ill. App. 484:

‘ ‘ This form of verification has been repeatedly held bad. An examination of the bill fails to disclose what allegations are based upon information and belief. To determine that, it would be necessary to search the mind of the pleader. If the bill contained false allegations and the complainant was prosecuted for perjury she could escape the penalties of the law by saying that the false allegations were based solely upon her belief, whether she, in fact, believed them to be true or false. Such an affidavit has no evidentiary value. Sherman Park Bank v. Loop Office Bldg. Corp., 238 Ill. App. 450; Christian Hospital v. People, 223 Ill. 244.”

An examination of the bill- in the instant case shows that it is impossible for the court to know what is stated as a fact and what is “stated on information and belief.” If every allegation in the bill were false, the maker of the affidavit could not be prosecuted for perjury, for it might well be said in defense that each and all were “stated on information and belief.”

The order of the circuit court of Cook county that the injunction issue as prayed, is, therefore, reversed and remanded because of the insufficiency of the affidavit to the bill of complaint. In view of this finding, it will not be necessary for this court to pass upon the other questions raised by appellant in its brief.

Reversed and remanded.

Wilson, P. J., and Hebel, J., concur.


author: Mr. Justice Hebel

text:
    Sam Geraci, Appellee, v. Manuel Sultan, Appellant.
    Gen. No. 35,532.

      Heard in the third division of this court for the first district at the October term, 1931.
    Opinion filed November 16, 1932.
    Meneely & Irrmann, for appellant.
    Stanley A. Wilczynski and Simon T. Sutton, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal from a judgment in trover entered against the defendant Manuel Sultan by the city court of Chicago Heights on the 13th day of June, 1931, for the sum of $2,223.67.

This action is one in replevin. The declaration of the plaintiff contained a count in trover. The defendants were the Citizens National Bank of Chicago Heights, Manuel Sultan, Arthur Jensen, surviving partner of the firm of Warren and Jensen and Ethel Warren and Florence Warren, only heirs at law and next of kin of Charles A. Warren, deceased. The defendants filed their several pleas, and thereafter, upon motion of Harry E. Folk, administrator cle bonis non of the estate of William Severin, deceased, Folk was made an additional party defendant, and filed pleas.

The action was submitted to the court for trial, without a jury, and the court dismissed this action as to the defendant Citizens National Bank of Chicago Heights, Arthur Jensen and Harry E. Folk, administrator de bonis non, of the estate of William Severin, and entered a finding assessing damages against Ethel Warren and Florence Warren in the sum of one cent, they to pay one-half of the costs of suit, and a judgment against 'Manuel Sultan for $2,223.67, and one-half the costs.

The facts in this case are, substantially, that on July 6, 1928, Sam Geraei, the plaintiff, lent Cesare Bufo the sum of $5,000 and took from him as security six notes and a trust deed upon certain property therein described; that the transaction took place in the office of Charles A. Warren, who was acting as the agent for Sam Geraei; that the trust deed and six notes for $1,000 each were drawn by Charles A. Warren. Geraei was unable to lend $6,000, as originally contemplated, but when the loan was consummated, Bufo asked for one note of $1,000, but Warren stated that it would be necessary to redraft the papers and for that reason he would hold one of the notes and place a memorandum on the same. At the consummation of the loan, the plaintiff delivered the notes and trust deed to Warren with instructions to keep them with Geraei’s other papers. Warren retained the papers, and thereafter he and Sultan, one of the defendants, without the knowledge or consent of the plaintiff, on July 31, 1930, executed and deposited a collateral note with the Citizens National Bank of Chicago Heights pledging as collateral security the four notes, Nos. 3, 4, 5 and 6 and the trust deed owned by Greraci, and the net amount of the loan, after discount,- namely, $1,970, was placed to, the credit of Manuel Sultan in this bank. The collateral note was renewed several times until paid by the plaintiff, Greraci, after the institution of this suit. Charles A. Warren received no part of the loan proceeds in this bank, and died before the suit was instituted.

It also appears from the evidence in the case that Manuel Sultan was the township collector, and Charles A. Warren in his lifetime acted as his auditor. On. June 26, 1930, Warren came to Sultan and stated that he wanted $1,500 for a business deal, and that he would return the money to Sultan within a few days; that Sultan made this loan and subsequently received a judgment note signed by Warren for the amount of $1,500. Sometime after the making of this loan, Sultan insisted that Warren pay him, and it 'appears in evidence that Warren said that he would negotiate a loan at the bank and give Sultan his money, and that thereafter the loan was made, as hereinabove set forth.

One of the points raised by the defendant, Manuel Sultan, is that it is necessary for the plaintiff to show that the notes and trust deed in question were in the. possession of Sultan, the defendant^ and that the proof is also upon the plaintiff to prove some wrongful act on the part of this defendant in the conversion of the notes and trust deed -owned by the plaintiff. One of the pleas of defendant Sultan is, in part, that Charles A. Warren and Manuel Sultan are the holders and owners of the notes and trust deed; that they delivered the notes and trust deed as collateral to a loan made-by the Citizens National Bank of Chicago Heights, for $2,000, to be used in the payment of a loan made by Sultan to Warren. This pleading, which is a part of the record, clearly indicates that the position of Sultan is that he not only claims possession, but also the ownership of the chattels in question.

The general rule applicable to the facts appearing in this record is that where the possession of chattels is wrongfully and tortiously obtained as against the plaintiff, the plaintiff owner can sustain an action in replevin without the necessity of a demand, even though the defendant acted in good faith.

The facts clearly establish that the plaintiff was the owner of the notes in question; that Charles A. Warren was the agent of the plaintiff and was in possession of the notes and trust deed only for the purpose of safe-lceeping, and that Sultan obtained the money, which was to be applied in payment of the loan made by him to Warren, by the deposit with the bank of the plaintiff’s notes as collateral. These being the facts, the taking of the notes and trust deed was wrongful and tortious, and the question of good faith is not involved in this case. Warren did not have title to the chattels which were deposited as collateral, and Sultan, by the execution of the collateral notes and the deposit of this collateral, joined with Warren in the conversion of plaintiff’s property. This court, in the case of Schwamb Lumber Co. v. Schaar, 94 Ill. App. 544, has passed upon facts which are analogous to those in the instant case. The court said:

“The evidence in the case tends strongly to show that the appellees came into possession of the lumber in question wrongfully; that they purchased the lumber in question, with other property, from one Andrew J. Olson, in consideration of the cancellation by appellees of certain indebtedness from Olson to them, and other considerations; that, Olson, at the time, had no title whatever to the lumber, it having been delivered to him by the plaintiff to be dried in his kiln. This being true, appellees took no title by their purchase from Olson, and their possession of the lumber was wrongful and tortious as to plaintiff. In order to sustain replevin when the possession of the defendant is wrongful, a previous demand of possession is unnecessary. Clark v. Lewis, 35 Ill. 418-23; Stock Yards Co. v. Mallory, 157 Ill. 563; Fifth Am. & Eng. Ency. Law, 528 I. (1st Ed.); Calvin v. Bacon, 11 Me. 28 (2 Fairfield Rep.); Wells on Repl., sec. 365; Butters v. Haughwout, 42 Ill. 18-24; Bruner v. Dyball, 42 Ill. 36; Hardy v. Keeler, 56 Ill. 152; Tuttle v. Robinson, 78 Ill. 332-4; Oswald v. Hutchinson, 26 Ill. App. 273; Trudo v. Anderson, 10 Mich. 357-67; Rosum v. Hodges, 9 L. R. A. (S. Dak.) 817-9.
“In Wells on Replevin, supra, the author recognizes a conflict in the decision as to when a demand is necessary before replevin can be maintained by the true owner of goods, stating a line of cases in which it has been held that ‘where the defendant acquired possession by purchase from one apparently the owner, such possession was so far rightful that the real owner must make demand before bringing suit, ’ and another line of cases holding ‘that where one purchased property from one who had no right to sell, it was a conversion, and the owner could sustain replevin without demand, the good faith of the buyer being no defense. ’ The rule in the latter line of cases seems to prevail in this State, and we think is supported by the weight of authority, the better reason and the later decisions.”

It is to be noted that the defendant Sultan was not a purchaser for value and did not receive the notes in the usual course of business, but obtained the money for the payment of the Warren loan by using the property of, the plaintiff without his consent or knowledge, which act was a wrongful conversion.

The other question which merits consideration is, Did the court admit improper evidence upon the hearing? Trial was had before the court without a jury, and the presumption is that the court, in rendering judgment, considered only competent evidence in (;h§ record.

The Appellate Court had this to say in the case of Niagara Ins. Co. v. Bishop, 49 Ill. App. 388, upon a somewhat similar question:

“We attach hut little importance to the contention that the court admitted improper evidence for the plaintiff and excluded proper evidence offered by the defendant. The case was tried by the court, who, as is usually the case, received matters offered in proof more freely than he would have done had the case been tried by a jury; but it does not appear that the defendant was prejudiced thereby. ’ ’

However, we have examined the evidence objected to by the defendant, which relates largely to the possession of the plaintiff’s notes by Warren as his agent, and are of the opinion that this defendant was not prejudiced by such evidence.

The plaintiff in this case contends that Warren was his agent in possession of the notes, and the burden was upon him to establish such agency, whether by written agreement, or verbally. There was no error in permitting the plaintiff to make the required proof, and it was not essential that the agency of Warren be created in the presence of Sultan, the defendant. Rice & Bullen Malting Co. v. International Bank, 185 Ill. 422.

From an examination of the record it appears that separate judgments were entered by the court as to the defendants Ethel Warren, Florence Warren, and Manuel Sultan. No question was raised by the defendant, Sultan, as to the propriety of such judgments, and so we have considered only the questions which were called to our attention by Sultan in his brief.

There is no error in the record that we consider reversible, and the judgment is accordingly affirmed.

Judgment affirmed.

Wilson, P. J., and Hall, J., concur.


text:
    Charles S. Jackson, Individually and as Executor of and Sole Legatee Under the Last Will of Daniel M. Jackson, Deceased, Appellee, v. Metropolitan Funeral System Association et al., Defendants. Appeal of Metropolitan Funeral System Association, Appellant.
    Gen. No. 36,203.

      Heard in the third division of this court for the first district.
    Opinion filed November 16, 1932.
    Edward H. Morris, for appellant.
    Clyde C. Colwell and John A. Irrmann, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the Metropolitan Funeral System Association, a corporation, from an interlocutory order entered in the circuit court on July 18, 1932, appointing a receiver for the business of this defendant. The bill of complaint was filed on May 18, 1932. Separate answers were filed by several of the defendants, Metropolitan Funeral System Assn, Robert A. Cole, Ahmed Rayner, and Fred Dewing. No appearance or answer was filed by the defendant Otto A. Stevenson or the Metropolitan Funeral Corporation. The motion for the appointment of a receiver was heard upon the verified bill of complaint and the sworn answers of certain defendants.

Upon an examination of the bill of complaint in this case we find that the complainant is the executor of the last will and testament of Daniel M. Jackson, who died testate on May 17, 1929, and that he, the complainant, is the sole residuary legatee under the will; that at the time of the death of Daniel M. Jackson, he was the owner of the entire capital stock of Emanuel Jackson & Co., a corporation of Illinois, organized to carry on the business of undertaking, and to render burial services. It also appears that Daniel M. Jackson was a stockholder and the owner of 90 shares of stock of an Illinois corporation known as the Metropolitan Funeral Corporation. The object of this organization was to contract with lodges, societies, associations, and other organizations for furnishing funeral and burial services.

It is also charged that upon the organization of the .Metropolitan Funeral Corporation, Daniel M. Jackson, Ahmed A. Bayner and Bobert A. Cole, organized a voluntary funeral system or association, had solicitors to secure members, sold policies to individuals, wherein for consideration they agreed that the Metropolitan Funeral Corporation would furnish a funeral and burial service to cost $400. This system, so-called, was continued until the first day of January, 1928, at which time a new form of policy was issued bearing the name Metropolitan Funeral System Association, which company purported to be doing business as a burial society. This association, in consideration of a weekly premium paid to it by the insured, agreed to furnish $400 for the funeral or burial expenses upon, the death of the insured, and pay $400 to the Metropolitan Funeral Corporation for such expenses. Emanuel Jackson & Co. was paid $125 by the Metropolitan Funeral Corporation for such services.

The place of business of these companies, systems, and associations was located at 3400 South Michigan avenue, Chicago, Illinois, in property owned by Daniel M. Jackson. On April 1, 1929, Daniel M. Jackson, by oral agreement, contracted to sell and deliver to Robert A. Cole, for the sum of $154,000, all his right, title and interest in the Metropolitan Funeral Corporation, together with 90 shares of stock of said company, also the premises and the buildings thereon known as 3400 South” Michigan avenue, Cook county, Illinois, subject to a mortgage of $45,000, and the property, good will, and stock of Emanuel Jackson & Co., and on April 1, 1929, the said Cole paid to Daniel M. Jackson the sum of $6,000 on account of the above purchase. Afterwards, on April 6, 1929, Robert A. Cole paid to Daniel M. Jackson the further sum of $4,000 on account of the purchase price above mentioned, making a total sum of $10,000 paid to Daniel M. Jackson. On May 17, 1929, before the execution of a formal written contract, Daniel M. Jackson died, and on May 21, 1929, the complainant stated to Cole that he was aware of the terms of the oral agreement between Cole and Daniel M. Jackson, and that the-complainant would cause said contract to be carried out in its entirety. After various negotiations were had between the complainant, Cole and others, no written agreement was ever executed. The $10,000 paid to Daniel M. Jackson by Cole was afterwards allowed as a claim in the estate of Daniel M. Jackson, deceased, by the probate court of Cook county. This allowed claim was afterwards paid to Cole.

It further appears from the bill that on the 29th day of April, 1929, at a purported special meeting of the stockholders of the Metropolitan Funeral Corporation, the stockholders by resolution, enlarged the object of the company to permit it to do an undertaking and burial business. It also appears that on November 25, 1929, Robert A. Cole, Fred Dewing and Ahmed A. Rayner, caused to be incorporated the Emanuel Jackson Undertaking Company, to carry on the undertaking business, with a capital stock of $1,000; that on November 27, 1929, as a part of the transaction, Cole, Lewing and Rayner caused to be filed in the office of the director of trade and commerce of Illinois, a certificate signed by them for the incorporation of the Metropolitan Funeral System Association, with its principal place of business located at 3400 South Michigan avenue, the object of which was to conduct a business of providing burial benefits or awards, and the payment therefor, in whole or in part, for the funeral and burial expenses of the deceased certificate holders or subscribers to this corporation, which corporation was qualified under the Amended Burial Insurance Act of 1929, Cahill’s Ill. Rev. St. 1931, ch. 73, ¶¶ 482-487.

It further appears from the bill of complaint that prior to or upon the formation of the Metropolitan Funeral System Association, all the books, records, and assets owned by the Metropolitan Funeral Corporation, Funeral System, an unincorporated association, Emanuel Jackson & Company, a corporation, were turned over to the Metropolitan Funeral System Association, Inc.; that all of the business, assets and employees of the several companies and associations were taken over by the Metropolitan Funeral System Association, Inc. without recompense to these companies, and without notice to the complainant.

It is further charged that in a proceeding in the superior court for that purpose a decree was entered dissolving the Emanuel Jackson Co. for failure to comply with the provisions of the corporation laws of Illinois, which decree was entered on the 10th day of June, 1927, and a certificate of that fact was filed with the secretary of the State of Illinois; that the Metropolitan Funeral Corporation was also dissolved for failure to pay a franchise tax due on July 1, 1931, in a proceeding instituted by the attorney general of the State of Illinois for the purpose of dissolving said corporation, all these acts being for the purpose and as a part of the scheme of Cole, Lewing and Rayner to deprive the complainant of his rights.

It also appears from a statement in the bill of complaint that the Metropolitan Funeral System Association filed a report of its operation during the year ending December 31,1931; that the officers of the company, as set forth in this report, are R. A. Cole, president, A. A. Rayner, vice president and treasurer, and Fred Lewing, secretary; that these defendants are also directors of said company. It further appears ■from the report that on January 1, 1931, there was a certain surplus balance of $26,007.32; that the income of the company for the year 1931 amounted to $408,852.26; that there was paid out during the year for claims paid in cash, costs of funerals, fees paid to or retained by agents, salaries of officers and other expenses in the conduct of the business, the sum of $404,774.47, leaving a surplus balance in the company of $30,085.11; that the amount of money collected weekly by the agents of this association was known as the weekly debit; that on July 1, 1927, this association had a weekly debit of $800; that since that time ■said debit has grown to $8,000 a week; that in March, 1932, it had about 90 solicitors who confined their efforts entirely to the City of Joliet in Will county, Illinois, and to Cook county, Illinois, and that there are at present about 40,000 policyholders in said company. The policyholders pay from 10 cents to 50 cents a week for each of the several policies issued.

It further appears from the bill that the said Metropolitan Funeral System Association has a lease for -the building known as 416-418 East 47th street, Chicago, Illinois, where the business of this association is conducted; that, a rental of $750 per month is to be paid for the first five years and $800 per month for .the balance of the term of said lease; that the first floor is used as funeral parlors; the second floor for offices of the association, except one room alleged to be rented to the Fireside Publishing Company, and that $5,000 was deposited with the landlord as a guaranty that said rent would be paid.

It further appears that the certificates issued by this company for funeral benefits amount to $13,850,400.

The criticism in the bill is that the officers were not qualified for the positions for which they held office, and also that no provision was made for the setting aside of a reserve fund for the payment of the benefit certificates issued by the association. There was also a general charge that the business of the association was not properly conducted, and that great losses are likely to result to the complainant and the holders of the certificates in the association unless a receiver is appointed.

To these charges of the complainant, the defendant association, before the court, filed an answer admitting some of the facts, but denying any wrongdoing in the conduct of its business, and questioning the motives of the complainant in the filing of this bill.

This court has examined the bill of complaint, not for the purpose of passing upon the merits, but only to consider the sufficiency of the charges upon which the court entered an order appointing a receiver for its business. At this point it is of interest to note that in the same order appointing a receiver the defendants are restrained from disposing of any property now in its possession belonging to the Metropolitan Funeral System Association and the Metropolitan Funeral Corporation, except in the usual course of business. This defendant makes no objection'to the restraining part of the order, but its whole theory is that the chancellor erred in appointing a receiver based upon the charges made in the complainant’s bill.

The bill does not charge insolvency, but the complainant contends that he is a creditor, and has a lien upon certain property taken possession of unlawfully by the defendant, and that the officers of the defendant corporation are guilty of waste, mismanagement and improper conduct in carrying on the business of the association, and that there is grave danger of its not being a solvent going concern. There is no charge in the bill of circumstances so extraordinary in the conduct of this going concern, which is apparently solvent, as to justify the appointment of a receiver. This association has about 40,000 members, according to the bill of complaint, paying collectively large sums of money to this defendant for the purpose for which the corporation was organized.

Under the statute of the State of Illinois, this association is subject to the control of the department of trade and commerce. No charges.are made that the defendant is in default in meeting its obligations. The reasonable inference to be drawn from the charges in the bill of complaint is that the defendant has satisfied its obligations, or had done so at least up to the time the bill was filed. The court should act cautiously in appointing a receiver under circumstances such as these, for not only the complainant’s rights are to be considered, but also the rights of the policyholders, who upon the payment of the premiums are entitled to receive the services contracted for when they pass on to the great beyond. It seems to this court that the learned chancellor did all that was required when the restraining order was entered, thereby protecting the complainant and restraining the defendant from the disposal of assets, which are the subject of this controversy, until the final disposition of the litigation.

It does not appear from the charges in the bill that the officers or directors of the company are insolvent, and we are unable to draw any inference from the charges that whatever may have been contemplated in the past by the defendants to the bill, there is any reason now to apprehend that this defendant will not fully account if the complainant is entitled to relief. It is to be noted, too, that the ■ decree dissolving the Emanuel Jackson Co. was entered on the 10th day of June, 1927, during the lifetime of Daniel M. Jackson, for failure to comply with the provisions of the corporation laws of the State of Illinois.

This court in the case of Original Vienna Bakery, Coffee & Natatorium Co. v. Heissler, 50 Ill. App. 406, in passing upon the questions involved in the appointment of a receiver, applied certain rules which are pertinent in the instant case, and used the following language:

“Courts do not appoint receivers as a'punishment for past dereliction, nor because of past dangers. Deceivers are appointed because of present conditions and well founded apprehensions as to the future.
“Past conduct and past conditions may be taken into consideration in determining- what the present situation is and the future will be, but a receiver will not be appointed because of things done or attempted at a past time, when the present situation and the prospects for the future are not such as to warrant taking the control of the property out of the hands of its owners. Kean v. Colt, 1 Halst. Let. 365; Beecher v. Bininger, 1 Blatchf. 170; High on Receivers, Sec. 11; Bank v. Gage, 79 Ill. 207.
“Receivers are appointed to protect and preserve the property under consideration. High on Deceivers, Secs. 1, 3, 5, 6, 11; Baker v. Admr. of Backus, 32 Ill. 79.
“Courts proceed with extreme caution in the appointment of receivers to take the property of a corporation out of the control of its officers, and are much more readily moved to, by proper orders, restrain the doing of improper acts and compel the recognition of undoubted rights. High on Deceivers, Sec. 289; Oakley v. Paterson Bank, 1 Green’s Ch. 173; Beach on Private Corporations, Vol. 2, Sec. 910; Spelling on Private Corporations, Sec. 852; Morawetz on Private Corporations, Sec. 281; Hyde Park Gas Co. v. Kerber, 5 Brad. 132.” Black Diamond Co. v. Waterloo, 62 Ill. App. 206; Heitkamp v. American Pigment & Chemical Co., 158 Ill. App. 587.

Many questions have been called to our attention, but we consider from the conclusions reached by us upon the charges in the bill of complaint and the law that this order for the appointment of a receiver must be reversed.

Order reversed.

Wilson, P. J., and Hall, J., concur.


text:
    William Wolkoff, etc., Complainant, Appellee, v. Woodlawn Trust & Savings Bank et al., Defendants, Appellees. Appeal of William Barrett, Appellant.
    Gen. No. 36,391.

      Heard in the third division of this court for the first district.
    Opinion filed November 16, 1932.
    Russell, Murphy & Quigley, for appellant; Charles F. McElroy, of counsel.
    Alexander Rothstein, Mortimer A. Rothstein and Aaron Soble, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an interlocutory appeal by William Barrett, who was appointed receiver on June 28, 1932, in the case of Stella Murphy et al. v. Woodlawn Trust and Savings Bank, a corporation, Gen. No. 560059, pending in the superior court of Cook county, Illinois, from an order entered in the case of William Wolkoff v. Woodlawn Trust and Savings Bank, a corporation, Gen. No. 561665, appointing Jules Eichenbaum as receiver in that case. A motion was made by the appellee, William Wolkoff in the instant case to dismiss the appeal of William Barrett, appellant, for want of appealable interest, which motion was reserved for disposition by this court upon the final hearing.

From the record it is evident that William Barrett is. not a party, either as complainant or defendant in the instant case, and that his interest is only that of receiver appointed by the court in the cause known as Stella Murphy et al. v. Woodlawn Trust & Savings Bank, Gen. No. 560059, pending in the same court. Appellant had no personal interest in what the court did in the appointment of a receiver in the case of Wolkoff v. Woodlawn Trust & Savings Bank et al., now before this court.

This court in passing upon the interest of the receiver in the pending litigation, in the case of Sutton v. Weber, 100 Ill. App. 360, said:

“A receiver is but the arm of the court, bound to do its bidding. The receiver had no personal interest in what should be done with the $140 he was ordered to pay. A receiver has a personal interest in his compensation and claim for the expense he has gone to. From orders as to those things he may appeal, but from nothing else. ’ ’

To the same effect the Appellate Court in the case of Chicago Title & Trust Co. v. Caldwell, 58 Ill. App. 219, held:

“A receiver is the mere hand of the court, to do what the court directs.
“When in passing upon his accounts the court charges or refuses to allow items, and he claims that the action of the court does him wrong personally, he may appeal. Hinckley v. Gilman, etc. R. R., 94 U. S. 467; How v. Jones, 60 Iowa 70.
“But if he may appeal from one order in which he has no interest, as to the distribution of assets, he may from every one. ... ”

Appellant contends that the rule applies, as announced in the case' of Goldberg v. Hoffman, 262 Ill. App. 112, that no court of co-ordinate jurisdiction has any power or authority to interfere with the property in the hands of the receiver, and that this control is in the hands of the court making the appointment. However, in that case, the court entered an order extending the receivership to protect the interests of the petitioner under a trust deed constituting a first lien, although the petitioner was not and did not become a party to the pending foreclosure proceedings, in which a receiver was appointed.

The question of an appealable interest of a receiver was not involved. The appellant has no appealable interest. He was an officer of the court. The litigation is under the control of the court, and, as we have already indicated in this opinion, the appellant as receiver has no personal interest in the question before this court. Foreman v. Defrees, Brace & Bitter, 120 Ill. App. 486. The parties in interest in the instant case, if aggrieved, should have appealed from the order entered by the court. The setting aside of the order appointing appellant receiver is not involved in this proceeding, for the reason that the transcript of record contains no such order. The appeal is dismissed.

Appeal dismissed.

Wilson, P. J., and Hall, J., concur.