author: Mr. Justice Matchett

text:
    In re Estate of James W. Moore, Deceased. George L. W. Moore and Clara Moore, Appellees, v. Bridget H. Sullivan, Administratrix De Bonis Non of Estate of James W. Moore, Deceased, Appellant.
    Gen. No. 41,413.

      Opinion filed May 19, 1941.
    David J. A. Hayes, of Chicago, for appellant.
    Rosenblatt, Schatz, Malkus & Brodsky and Warden & Becker, both of Chicago, for appellees; H. Burton Schatz, Benjamin M. Becker and Edward Warden, for counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

The decedent, J ames W. Moore, then about 81 years of age, died intestate at Chicago, Illinois, June 29, 1937, leaving him surviving two brothers and a sister, his only heirs at law and next of kin. Claimants (George L. W. Moore and Clara Moore) are not related by blood. George is a stepson and Clara is the wife of George. They filed a claim in the probate court of Cook county consisting of two items. First, for food, laundry, lodging, rent and care at $18 per week from December 10, 1931, to January 21, 1934, $1,980; second for food, laundry, lodging, rent, care and special nursing service at $25 per week from January 29, 1934, to March 23, 1935, 61 weeks, $1,525; a total of $3,505 on which were credited amounts received on account from December 10, 1931, to August 10, 1932, $200, leaving a balance of $3,305, which their verified statement alleged to be just and unpaid after allowing all just credits. The claim was disallowed in the probate court. Appeal was taken to the circuit court, where upon trial without a jury, on April 25, 1940, a finding was entered for the claimants in the sum of $2,640, with judgment. The estate has appealed to this court.

The evidence shows Mrs. James W. Moore (wife of the decedent) died December 10, 1931. On that date he went to live at the home of claimants, 1331 North Lorel avenue. He owned a two-flat building at 3224 West Flournoy street rented to tenants. He was and for many years had been employed by the Surface Lines as an investigator. He continued to work until January 15, 1934, when his health failed somewhat. He was then drawing a salary of $153 per month. The inventory of his estate discloses the two-flat building and two bank accounts. In one the balance was $342.79, in the other $3,421.25. The instant claim and another for funeral expenses are the only demands filed against his estate.

While claimants were not related by blood to decedent George Moore is his stepson, and decedent was known to the family as “Grandfather.” He left no children. He appears to have been frugal and honest. When he first came to live with claimants they occupied an apartment of four rooms in a building of which ■ George Moore was receiver. There were four in the George Moore family — the father, the mother, a daughter and a son. About two weeks after decedent came more space was found necessary and another apartment was taken on the floor below.

The claimants were incompetent to testify. Evidence was given in behalf of their demand by their daughter Clara (now Mrs. Wilson); the daughter’s husband, George Wilson, who was at that time courting his wife to be; the son, George, Jr., then seventeen years of age, and James Cremaldi, who was a near neighbor of James W. Moore on Flournoy street before and after he went to live with claimants.

The evidence is to the effect that at the funeral home on December 10,1931, ‘ ‘ Grandpa ’ ’ said to Mrs. Moore, “Love, if you will take me with you, I will give you everything’ I have got”; that they took him with them into the four-room apartment and after about two weeks, when it became too crowded, took another apartment downstairs. Mrs. Wilson helped the mother, who was unable to care for decedent herself. Mrs. Moore cooked special meals for him and took care of his laundry. Part of the time he did not have control of his physical faculties and was confined to bed. The evidence shows a number of times decedent said he would pay claimants well for their trouble.

Mrs. Wilson and her husband testify to several payments made by decedent on Saturday evening’s after dinner, when the family was present. Mrs. Wilson says the decedent was somewhat odd. George Wilson (the husband) corroborates the testimony of his wife and says that decedent said claimants should be rewarded for what they were doing for him.

Moore, Jr. says that on a Saturday night in the fall of 1932, deceased said, “ ‘I am very grateful for the care that George’ — he always referred to my father as George — ‘that George and Clara have given me.’ He says, ‘It is not my desire nor intention to go along without reimbursing them. ’ He said, ‘I want them to be paid for everything that is done for me.’ ” He recalled a Saturday night when deceased put $20 in front of George Moore and said, “Here’s your pay.” The witness was sitting at the side of the table and he says “Grandfather” was sitting at the head of the table and said, “Here’s your pay for the week.” The witness said this happened three or four times, always on a Saturday night.

James Cremaldi, a West Flournoy street neighbor, testified to two conversations with the deceased. He said just before deceased went to live with claimants he told Mr. Cremaldi he was going to live with Mrs. Moore, would have a good home, would like it there, and that he would have to pay board and would be satisfied'with paying $20 per week. The second conversation was after decedent came back from the Moore’s to live on Flournoy street. He told Cremaldi in response to his question as to why decedent was coming back there, that he liked the home he was in but figured he had to pay board there and he had money coming from tenants and would live with them and “square off the rent.”

There is no written evidence tending to prove any contract nor proof that claimants rendered any bill or made any demand.

The estate has cited many authorities to the proposition that a claim of this kind is viewed with suspicion and services rendered to members of a family or household are presumed to be gratuitous. This is the law although the presumption is rebuttable. We are not unmindful of the law as stated in the many cases cited from this and other jurisdictions. However, the uncontradicted evidence here is to the effect that the Moores cared for, furnished a home and maintenance to the deceased during the several years he lived with them. He was able to pay; he wished to pay. We hold the evidence is sufficient to show an agreement to that effect.

The difficulty in deciding this case has not arisen from any uncertainty about the existence of an agreement to pay. Our difficulty has been to determine whether, as a matter of fact, payment was made.

The estate says the claim is barred by laches and argues, citing Trego v. Estate of Cunningham, 267 Ill. 367, and In re Estate of Holsman v. Holsman, 295 Ill. App. 392, that the probate court has the power and jurisdiction of a court of chancery. The cases cited are not applicable.

The real question it seems to this court is whether lack of proof of a demand with lapse of time and other facts here appearing create a presumption of payment. Apparently this was not in the mind of the parties upon the trial and there is evidence available which was not presented. We understand a recent interpretation by the Supreme Court of § 92, sub. 1 (f) of the Civil Practice Act (Smith-Hurd Ann. Stats., ch. 110, par. 216, p. 420 [Jones Ill. Stats. Ann. 104.092]), holds courts of review are without power in the first instance to have such evidence taken. There is a line of cases decided by the Pennsylvania courts holding that in claims for nursing services, etc., there is a rule presuming payment. 24 C. J., p. 278 says: “Where a claim for services or board is first made after the decease of the alleged debtor, the presumption obtains that payment was made. ...” In re Kelly’s Estate, 6 Pa. Dist. R. 685; In re Estate of Cummisky, 224 Pa. 509, 73 Atl. 916, 132 Am. St. Rep. 787; Flaccus v. Wood, 260 Pa. 161, 103 Atl. 549. The question does not seem to have been raised in this State in connection with such cases. Chapman v. Barnes, 29 Ill. App. 184; Hudson v. Hudson, 218 Ill. App. 559; Crawley v. Howe, 223 Ill. App. 394; In re Estate of Lyons, 303 Ill. App. 642, 644, 646; Moreen v. Estate of Carlson, 365 Ill. 482, 486, 493.

In our examination of the record it also appears that evidence offered tending to show the reasonable value of services and support rendered by claimants to the deceased was not admitted when offered. We hold it should have been. Under the powers granted this court under §92 sub. 1 (f), the judgment will be reversed and the cause remanded for the purpose of taking additional evidence on these points.

Reversed and remanded.

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


source: Caselaw Access Project

license: Public Domain

text:
    Thomas Cooney, Appellee, v. Henry Hughes and Yellow Cab Company, Appellants.
    Gen. No. 41,527.

      Opinion filed May 19, 1941.
    Miller, Gorham, Wescott & Adams and Charles F. White, both of Chicago, for appellants; Herbert C. De Youhg, of Chicago, of counsel.
    Ryah, Sihhott & Miller, of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

In an action for negligence there was judgment for $3,500 on the verdict of a jury. Defendants say the verdict is excessive, the rulings of the court on evidence prejudicial, the giving and refusing of instructions erroneous, and the conduct of attorney for plaintiff improper. Defendants also urge plaintiff was guilty of contributory negligence.

Plaintiff, a police officer directing traffic at the intersection of Wabash avenue and Monroe street in Chicago, was struck by defendant’s cab driven by defendant Hughes January 25, 1938. October 24, 1938, an amended complaint was filed stating the particulars in which defendants were said to have been negligent.

The accident occurred about 12:35 p. m. Wabash avenue runs north and south, Monroe street east and west. The intersection is in what in Chicago is called the “Loop District” where traffic is heavy. Street cars run in Wabash avenue; north over east tracks, south over west tracks. Elevated trains run over the intersection. Traffic is regulated by stop and go lights. Monro.e street is about 55 feet wide, Wabash avenue about 60 to 65 feet from curb to curb. The elevated tracks are built on supporting pillars which stand on either side of the street car tracks. The traffic lights were of three colors — green, amber and red. Plaintiff in the performance of his duties stood as usual on the southwest corner of the intersection.

There is a sharp conflict in the evidence as to the precise way the accident occurred. As stated, plaintiff was on duty at the crossing. It was a clear day. He says he stood about three or four feet west of the westerly street car rail in Wabash avenue and about a foot north of the south crosswalk. Two ladies were walking west across Wabash avenue on the south crosswalk of Monroe street. When they got about to the middle of the southbound car track an eastbound automobile making a right turn from Monroe street south into Wabash avenue was about to bar their way. The amber light flashed indicating north and south traffic was about to be given the right-of-way. The ladies became confused. Plaintiff holding up his right hand stopped the turning automobile. He took a step east, then with his left hand indicated the ladies should proceed. When they had passed safely in front of the standing car he turned east to direct traffic. He was in the act of raising his Avhistle when the right front fender of defendant’s cab (approaching from the north and going at a speed estimated differently by witnesses) struck him. He was assisted to another Yellow Cab and taken to St. Luke’s Hospital. This is in substance the testimony of plaintiff.

On the other hand the evidence of defendant Hughes tended to show defendant’s cab (driven by him) was moving south in Wabash avenue in the center of three lanes of travel reserved for southbound traffic in Wabash avenue. This lane was next to the southbound car tracks. At the north crosswalk of Wabash avenue the driver waited for the traffic lights to turn green. When the light changed he proceeded across the intersection at a speed of less than ten miles an hour, when plaintiff suddenly stepped from in front of the automobile (turning from Monroe street) and into the way of defendant’s cab and was hit. On defendants’ theory plaintiff was guilty of contributory negligence. On plaintiff’s theory defendant drove its cab with a degree of negligence almost amounting to wantonness and wilfulness.

We could write at length of incidents related by the several witnesses, the probability of their narrations, etc. but at the end could only come to the view that the issues of negligence of defendant and contributory negligence of plaintiff were for the jury. It is difficult to get the true picture of an accident at a Loop intersection even from the testimony of disinterested witnesses. An accident ordinarily happens in an instant of time. Usually witnesses see only a part of what occurred. This is particularly true where the occurrence is in the Loop with its congested traffic. Plaintiff says he did not see this cab until it hit him. The driver, who knows most about it, is codefendant. He testified by deposition before and also at the trial. His testimony is not entirely consistent. Some of the evidence for plaintiff is also contradictory, some of it improbable. The issues were preculiarly for the jury. The trial judge has approved the verdict. We cannot say it is manifestly against the weight of the evidence. It therefore remains only for us to détermine whether the trial was fair and according to law.

Defendants say the trial was not fair. They complain the court erred in admitting in evidence plaintiff’s Exhibit No. 13, an X-ray of plaintiff’s pelvis taken June 28, 1939, about seventeen months after the accident. The medical testimony for plaintiff tended to show he sustained an injury known as a subluxation of the sacroiliac joint. Prior to taking this particular X-ray, twelve others had been taken which failed to show injury of this kind. Defendants say the picture now objected to was taken without proof that plaintiff’s condition at the time it was taken was the same as just after the accident. There is no merit to this ' contention.

Dr. Duggan was plaintiff’s attending physician. He testified plaintiff sustained a partial dislocation of the sacroiliac joint. On cross-examination he was asked whether a separation of the bones would show in an X-ray. He said, “Yes, if the X-ray was taken under proper conditions.” He also said the X-rays which had been taken prior to Exhibit No. 13 (twelve altogether) showed a negative result, because there was no “traction” put on it. He was asked if traction did not distort. He replied not if the traction was the same on both sides.

Dr. Vaughan, who took this X-ray, explained how it was done. The view included the pelvis and the last two lumbar vertebra. The patient’s back was up against the film, the X-ray tube in front. One laboratory assistant was pulling on the right leg, another pulling on the left leg, the patient himself making counter-resistance holding onto the side of the table so the patient would not be pulled off. Another assistant held his shoulders so as to make the pull on the two legs equal and the distal pull on both legs counteracted by the patient holding onto the table. An assistant held the patient from above — three different pulls. Dr. Vaughan said that the left sacroiliac joint became slowly wider than the right; “If anything, before the right was a shade darker, a shade wider. Now we have the left becoming wider. It is not a large difference, it is not a big difference but it is a difference, which I think you can see. If any of you do not see it, we can run over the other films again.” Another film was then handed the witness for comparison, and he explained to the jury the difference. The roentgenologists testifying for defendants said the film did not show any such injury and explained their reasons to the jury.

The parties did not lack for medical witnesses. It was for the jury who saw and heard to determine the fact.

Defendants say the court also erred in allowing this film to be taken by the jury to its room. The Supreme Court has settled this question contrary to defendant’s contention construing section 76 of the former Practice Act. Chicago & J. Elect. Ry. Co. v. Spence, 213 Ill. 220; Kavale v. Morton Salt Co., 329 Ill. 445. Section 76 of the old act is retained in the Civil Practice Act as section 67. (Smith-Hurd Ann. Stats., ch. 110, par. 191, p. 586 [Jones Ill. Stats. Ann. 104.067].) We hold there was no error in this respect.

It is said the court erred in allowing evidence to be introduced tending to show that because of a congenital condition in plaintiff’s back he was more susceptible to injury from this kind of accident and would require unusual time to recover from it. This evidence was given by Dr. Knoepfler, a roentgenologist. He testified to a general medical opinion that the congenital anomaly of the back, such as plaintiff had, would cause a patient to undergo particular strain when lifting heavy objects; that such a back in case of accident would not be flexible as'a normal one. Defendants say this was merely conjectural and should have been excluded as highly prejudicial. They cite Menifee v. Higgins, 57 Ill. 50 and Lyons v. Chicago City Ry. Co., 258 Ill. 75. An X-ray picture taken at the Alexian Brothers Hospital on August 20, 1936, showed (so the expert said) a “sacralization” of the transverse processes of the fifth lumbar vertebra. These are sometimes called “butterfly” processes. It was not claimed that the accident caused these. Defendants therefore conclude the 'evidence was conjectural. Expert evidence of this kind has been held admissible in Toledo W. & W. R. Co. v. Baddeley, 54 Ill. 19, and Donnelly v. Chicago City Ry. Co., 235 Ill. 35. The cases cited by defendants are easily distinguishable. Defendants in reply attempt to distinguish this from the Donnelly case on the theory that Dr. Knoepfler “was not an orthopedic surgeon” and therefore not qualified as an expert. Defendants say the doctor limited his professional work to the taking and interpreting of X-ray pictures. We do not so .understand the doctor’s testimony. He said his work for plaintiff was so limited, but as to qualifications testified to his education in Munich, his license to practice medicine and surgery in this State and his position with the Alexian Brothers Hospital. The record does not disclose objection was made to his testimony on the g’round that he was not qualified. In the absence of such objection the point is waived.

■ It is said the court erred in permitting evidence to be given of plaintiff’s earnings. Plaintiff testified he earned $2,500 per year. No proof of loss of earnings was offered. Defendants say this was prejudicial to them, in particular as the court, instructing the jury, included loss of services with other elements of damage which might be allowed. If the salary of plaintiff was gratuitously paid by the city during his absence this would not warrant any deduction from actual damages which plaintiff was entitled to recover. O’Brien v. Chicago City Ry. Co., 305 Ill. 244; Hoobler v. Voelpel, 246 Ill. App. 69, 78-79. Defendants say these cases are not applicable because in each it appeared the employer continued to pay wages as a gratuity while here there is no evidence plaintiff received his wages as a gratuity. It is true the evidence does not prove whether the salary of plaintiff was paid during his disability. If it was it was gratuitous and the cases cited will be applicable. If his wages were not in fact paid during that time, much more would he be damaged.

Bitter complaint is made about alleged prejudicial conduct of plaintiff’s attorney. Mr. Goles, a police officer of the Accident Prevention division, was called as a witness by defendants. On cross-examination he was asked by plaintiff if he ever received any gifts from the Yellow Cab Company. He denied he had ever received such gifts. Defendants moved for a mistrial. The motion was denied. It is urged this was error. Keehn v. Braubach, 307 Ill. App. 339, is cited. Officer Coles had been an attending witness for three days. He said he received his subpoena fee and it was all he expected to get. He was in an official position where he would often come into contact with the cab companies. Plaintiff (a brother officer) for five years received a Christmas present of $5 from the defendant corporation. His affidavit produced in opposition to the motion for a new trial shows that he had been informed other officers received similar gifts. We think his attorney in good faith and in loyalty to his client might well inquire whether the witness had been neglected in this general ministration.

Much complaint is made about the cross-examination of defendant Hughes. It covers fourteen printed pages of the abstract. Defendants cite Spohr v. City of Chicago, 206 Ill. 441, and Zetsche v. Chicago, Peoria & St. Louis Ry. Co., 238 Ill. 240, and say the effect of repeating questions already answered had a tendency to confuse the jury and to make appear (contrary to fact) evidence given by defendant Hughes by deposition prior to the trial was inconsistent with his testimony at the trial. Defendants underestimate the in- • telligence of Cook county juries. Experience will disclose an unfair cross-examination to be a sure way of prejudicing the cause of client. Moreover, the trial judge was there and could manifest his disapprobation by sustaining objections or granting a new trial. Hughes was. the most important occurrence witness in the case. He saw it and was a part of it. There is nothing in his cross-examination calling for reversal.

Defendants contend the trial court gave too many instructions for plaintiff. We agree. They cite Chicago, Paducah & Memphis R. Co. v. Mitchell, 159 Ill. 406; Kravitz v. Chicago City Ry. Co., 174 Ill. App. 182, and Komorowski v. Boston Store of Chicago, 263 Ill. App. 88. The trial court gave at the request of plaintiff, twenty-four instructions and at the request of defendants, eighteen instructions. The point is made first on appeal and defendants are hardly in a position to complain.

Defendants complain the court refused a request to give the usual instruction that the testimony of an unimpeached witness for defendant óught not to be disregarded because he is an employee. They say this instruction was vital because Hughes was an employee of the cab company. They failed to notice that he was also a codefendant and therefore much interested in the case. The court did not err in this.

It is complained that an instruction was given informing the jury of the Illinois statute providing in substance that no person should wilfully fail or refuse to comply with the order or direction of a police officer who has authority to control or direct traffic, and that a driver should not disobey the instruction of any traffic control device unless directed by a police officer. Defendants say there is no evidence to which this instruction was applicable; that plaintiff did not give any signal, etc. People v. Beno, 324 Ill. 484, is cited. There was evidence that just before the accident plaintiff held out his hand to stop traffic and that he was in the act of raising his whistle to his mouth to give north and south traffic the signal to proceed at the time he was struck. Southbound traffic had no right to proceed over the crosswalk until the officer should so indicate. The instruction was not erroneous.

Another complaint is made of an instruction telling the jury that if defendants’ conduct was wilful and wanton as charged, contributory negligence of plaintiff would not bar this suit. It is said the instruction was erroneous in that it did not add “unless they found plaintiff was also guilty of wilful and wanton conduct.” Defendants cite Pardridge v. Cutter, 168 Ill. 504, 512; Home Bank & Trust Co. v. Szostowski, 247 Ill. App. 207. The instruction is, we hold, not peremptory. Murphy v. Illinois State Trust Co., 375 Ill. 310.

Complaint is made that the court gave the usual instruction about the number of credible witnesses being a proper element to consider in determining preponder anee of the evidence. Defendants say it should not have been given because it stressed a single element without mentioning other elements entitled to equal consideration. Skamenca v. Reeser, 294 Ill. App. 216. This case is different from the Skamenca case, where only one instruction was given directed to the determination of the preponderance of the evidence. There was no error in giving the instruction.

Complaint is made of an instruction directing attention to the statute which requires a motor vehicle operating on a highway to be equipped with a horn, etc., and that when reasonably necessary warning with a horn should be given. The instruction stated the law in the language of the statute and was applicable to the facts. It was not erroneous. Deming v. City of Chicago, 321 Ill. 341; Reisch v. People, for use of Stringer, 229 Ill. 574; Eaton v. Marion County Coal Co., 173 Ill. App. 444, 450.

Defendants complain much that the court at the request of plaintiff gave to the jury an instruction which recited almost verbatim the complaint, then told the jury that if it believed defendants were guilty of one or more of the particular acts of negligence as alleged in the first count, etc., they should find defendants guilty. The same instruction went on to say that the second count differed from the first only in not alleging plaintiff was in the exercise of ordinary care. It also alleged the acts complained of in the first count were committed by defendants in a wilful and wanton manner, etc., and that if they believed these facts had been proved under the second count, they should find defendants guilty. We hold the instruction ought not to have been given. Reivitz v. Chicago Rapid Transit Co., 327 Ill. 207, 212; Attabella v. Krzepton, 233 Ill. App. 320; Smoot v. Hollingsworth, 265 Ill. App. 447. The Supreme Court in many cases has held it is error to give the complaint to the jury. Johnson v. Pendergast, 308 Ill. 255; Lerette v. Director General of Railroads, 306 Ill. 348; Bernier v. Illinois Cent. R. Co., 296 Ill. 464. Other decisions criticize the practice of referring to the complaint in an instruction unless the jury are instructed as to what issues are raised by the complaint. Bernier v. Illinois Cent. R. Co., 296 Ill. 464; Tregoning v. Tregoning, 262 Ill. App. 489; Williams v. Stearns, 256 Ill. App. 425. - Other cases hold that it is the duty of the trial court to instruct the jury as to the issues. Some seem to approve the practice of defining the issues to the jury in the language of the declaration. Central Ry. Co. v. Bannister, 195 Ill. 48; West Chicago St. R. Co. v. Lieserowitz, 197 Ill. 607, 610. In yet another case the Supreme Court seems to have held it was error for the trial court to refuse instructions requested by a defendant which defined the issues raised in each count of the declaration and in each "instruction told the jury that unless the allegations were, proved no recovery could be had. 'In Krieger v. Aurora E. & C. R. Co., 242 Ill. 544, 548, the Supreme Court said:

‘ ‘ The rule adopted by nearly all courts is, that the court must define the issues to the jury without referring them to the pleadings to ascertain what they are. ’ ’

McFarlane v. Chicago City Ry. Co., 288 Ill. 476, 485, is to the same effect. The plaintiff cites Lisha v. Chicago Rys. Co., 318 Ill. 570, and says of it: “In an exhaustive opinion written by Mr. Justice De Young, the giving of instructions of this character is upheld.” After reading the opinion, we think the, statement not justified.

In Illinois Cent. R. Co. v. King, 179 Ill. 91, the Su-. preme Court approved the practice as stated by two well-known authorities; Thompson on Trials, §§ 1027, 2314 and 2582, and 11 Encyclopedia of Pleading and Practice (154). The Supreme Court said:

“In Thompson on Trials the learned author, in defining the province of the court and jury, says (sec. 1027): ‘The construction of the pleadings is, of course, always a question for the court. ... It is, therefore, the duty of the court to state the issues to the jury, without referring them to the pleadings to ascertain what the issues are. ... It is error to leave the jury to construe and determine the effect of the pleadings.’ ... In 11 Encyclopedia of Pleading and Practice (154) it is said: ‘The clear weight of authority is, that it is the province and duty of the court to state specifically to the jury what issues are raised by the pleadings, and that it is erroneous to refer to the pleadings to ascertain what the issues were; that the construction of the pleadings and the issues raised thereby are questions for the court alone, and not for the jury. ’ ”

While instructions of the kind here in question are contrary to the law as thus stated, in so far as the briefs inform us the courts of this State have not thus far reversed a judgment for this cause. We think the jury here was not misled. The facts were simple, the issues easily understood. We do disapprove instructions of this character.

The judgment will be affirmed.

Judgment affirmed.

O’Cohhor, P. J., and McSurely, J., concur.


author: Justice Burke.

text:
    Charles F. Alexander, Appellant, v. Northern Trust Company et al., Appellees.
    Gen. No. 41,394.
    opinion filed April 23, 1941;
    rehearing denied May 21, 1941.
    Arthur C. Schreiber, for appellant; Edward J. Warren, of counsel; Hershenson & Hershenson and James B. MeKeon, for appellees.
   Opinion by

Justice Burke.

“Not to be published in full.’’


author: Presiding Justice Friend.

text:
    George A. Schmidt, Individually and Trustee Under the Last Will and Testament of William Schmidt, Deceased, v. Marie Runge et al. George A. Schmidt et al., Appellees, v. Wilhelmina Gross and the Northern Trust Company, Trustee Under the Last Will and Testament of William Schmidt, Deceased, Appellants.
    Gen. No. 41,136.

      opinion filed May 13, 1941;
    rehearing denied June 2, 1941.
    Ashcraft & Ashcraft, for certain appellant; West & Eckkart, for certain other appellant; John F. Cashen, Jr. and James Conger, of counsel; Whitman, Holton & Tews, for appellees.
   Opinion by

Presiding Justice Friend.

“Not to be published in full.”


text:
    Karl M. Gibbon, Appellee, v. 3920 Lake Shore Drive Building Corporation et al., Appellants.
    Gen. No. 41,315.
    opinion filed May 13, 1941.
    Michael M. Phillips and Gerald Turnbull, for appellants; Poppenhusen, Johnston, Thompson & Raymond, for appellee; Albert E. Jenner, Jr., of counsel.
   Opinion by

Presiding Justice Friend.

“Not to be published in full.”


author: Justice Sganlan.

text:
    Loretta Hamann et al., Appellants, v. Fred Becklenberg, Appellee.
    Gen. No. 40,905.

      opinion filed May 13, 1941.
    Arthur O. Kiesgen, for appellants; James M. Gillespie, of counsel; Arthur Abraham and Patrick J. Crowley, for appellee.
   Opinion by

Justice Sganlan.

“Not to be published in full.”


author: Justice Scanlan.

text:
    Martha Ulvick, Administratrix of Estate of Newell B. Ulvick, Deceased, Appellee, v. Baltimore and Ohio Railroad Company, Appellant.
    Gen. No. 41,020.
    opinion filed May 13, 1941;
    rehearing denied June 2, 1941.
    Rawlins & Wright, H. D. Sheean and E. W. Lademann, for appellant; Fay Warren Johnson, of counsel; Ashcraft & Ashcraft, for appellee; Russell F. Locke and Charles H. G. Kimball, of counsel.
   Opinion by

Justice Scanlan.

“Not to be published in full.”


text:
    Fidelity Coal Company, Appellant, v. Alfred Diamond and Mutual Life Insurance Company of New York, Appellees.
    Gen. No. 41,058.
    opinion filed May 13, 1941.
    Harold L. Eisenstein, for appellant; Harry C. Diamond, Alex C. Lawrence and Winston, Strawn & Shaw, for appellees.
   Opinion by

Justice Scanlan.

“Not to be published in full.”


text:
    Matilda Yoelin, Administratrix with the Will Annexed of Estate of Michael Gorski, Deceased et al., Plaintiffs, v. John Kudla et al., Defendants. Walter Waishwell and Mary Waishwell, Intervening Petitioners After Decree, Appellees. Matilda Yoelin, Administratrix, Appellant.
    Gen. No. 41,102.

      opinion filed May 13, 1941;
    rehearing denied June 2, 1941.
    Estelle M. Wells, for appellant; Alex Janoski, for appellees; Norbert B. Tyrrell and Edmund J. Reynolds, of counsel.
   Opinion by

Justice Scanlan.

“Not to be published in full.”


text:
    Mary Catherine Taylor, Formerly Mary Catherine Udally, Appellee, v. Municipal Employes Insurance Association of Chicago, Appellant.
    Gen. No. 41,125.
    opinion filed May 13, 1941;
    rehearing denied June 2, 1941.
    Julius H. Selinger, for appellant; Cornelius R. Palmer, for appellee.
   Opinion by

Justice Scanlan.

“Not to be published in full.”


text:
    In re Estate of John J. Preib, Deceased. Mathias W. Preib, Appellee, v. Peter J. Preib, Administrator of Estate of John J. Preib, Deceased, Appellant.
    Gen. No. 41,183.
    opinion filed May 13, 1941;
    rehearing denied June 2, 1941.
    Black & Beermann, for appellant; Benjamin H. Black, of counsel; P. Gerald O’Hara and James W. Collins, for appellee.
   Opinion by

Justice Scanlan.

“Hot to be published in full.” ■


author: Justice John J. Sullivan.

text:
    May Richards Snow and Chicago Title and Trust Company, Executors Under the Last Will and Testament of Edgar M. Snow, Deceased, Surviving Partner of the Partnership of Edgar M. Snow and Andrew S. Brock, Trading as Edgar M. Snow and Company, Appellants, v. Alexander S. Schulman, Appellee.
    Gen. No. 40,260.

      opinion filed May 13, 1941.
    Tenney, Harding, Sherman & Rogers, for appellants; Roger Sherman, S. Ashley Guthrie and William W. Miller, of counsel; Miller, Gorham, Wescott & Adams and Charles P. Schwartz, for appellee; Frederic O. Mason and Amos C. e Miller, of counsel.
   Opinion by

Justice John J. Sullivan.

“Not to be published in full.”


author: Presiding Justice O’Connor.

text:
    Rose Kaiser, Appellee, v. Paul Kaiser, Appellant.
    Gen. No. 41,623.
    opinion filed May 19, 1941.
    Charles S. Harvey, for appellant; George A. Risler, for appellee.
   Opinion by

Presiding Justice O’Connor.

“Not to be published in full.”


text:
    George E. Carlson and Florence H. Carlson, Appellants, v. Chicago Title and Trust Company, Trustee, et al., Appellees.
    Gen. No. 41,634.

      opinion filed May 19, 1941.
    James D. Murphy, for appellants; James A. Carey and Albin Dommermuth, of counsel; Miller, Gorham, Wéseott & Adams, Harold L. Eeeve and C. F. Faust, for appellees.
   Opinion by

Presiding Justice O’Connor.

“Hot to be published in full.”


text:
    People of the State of Illinois, Defendant in Error, v. Frank Stoltz, Trading as Stoltz Motor Discount Company, Plaintiff in Error.
    Gen. No. 41,666.
    opinion filed May 19, 1941.
    Louis Levy, Lawrence E. Dowd and Ellis & Westbrooks, for plaintiff in error; Eiehard E. Westbrooks, of counsel; Thomas J. Courtney,' State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher and Melvin S. Eembe, Assistant State’s Attorneys, of counsel.
   Opinion

by

Presiding Justice O’Connor.

“Hot to be published in fuU.”


author: Justice McSurely.

text:
    Renie F. Goodman, Appellee, v. Edmund K. Jarecki, Judge of County Court of Cook County, Appellant.
    Gen. No. 41,538.
    opinion filed May 19, 1941.
    Thomas J. Courtney, State’s Attorney, for appellant; Jacob Shamberg, Joseph Burke, Marshall Korshank and Roman R. Stachnik, Assistant State’s Attorneys, of counsel; John C. Garriott, Jr., for appellee; Charles Goodman, of counsel.
   Opinion by

Justice McSurely.

“Not to be published in full.’’


text:
    Marian L. Fogelson, Appellant, v. Samuel J. Fogelson, Appellee.
    Gen. No. 41,598.
    opinion filed May 19, 1941.
    A. C. Lewis, for appellant; Kern, Stiefel & Stiefel, for appellee; Charles W. Stiefel, Jr., of counsel.
   Opinion by

Justice McSurely.

“Not to be published in full.’’


text:
    Beulah Burton, Appellant, v. James Cahill, Appellee.
    Gen. No. 41,620.
    opinion filed May 19, 1941.
    Irving Greenfield, for appellant; George A. Gordon, of counsel; Louis A. Smith and Harold Tucker, for appellee.
   Opinion by

Justice McSurely.

“Not to be published in full.”


author: Justice Matchett.

text:
    Joseph F. Dixon, Appellee, v. Andrew J. Miller et al. Appeal of Maurice Newton et al., Appellants.
    Gen. No. 41,491.
    opinion filed May 19', 1941;
    rehearing denied June 4, 1941.
    Chapman & Cutler, for appellants; Ralph F. Huek, of counsel; Harry G. Wexler and Irving L. Block, for appellee.
   Opinion by

Justice Matchett.

“Not to be published in full.”


text:
    Clara A. Bransfield, Appellee, v. James F. Bransfield, Appellant.
    Gen. No. 41,605.
    opinion filed May 19, 1941;
    rehearing denied June 4, 1941.
    John A. Sullivan, for appellant; Cummings & Wyman and Robert E. Cantwell, Jr., for appellee; Daniel P. Nagle and Robert E. Cantwell, Jr., of counsel.
   Opinion by

Justice Matchett.

“Not to be published in full. ’ ’


text:
    Bessie Caslow, Appellee, v. Checker Taxi Company and Ernest Graf, Appellants.
    Gen. No. 41,639.

      opinion filed May 19, 1941.
    Jesmer & Jesmer, for appellants; Julius Jesmer and Chester L. Harris, of counsel; Sher & Karlin, for appellee; Leo S. Karlin, of counsel.
   Opinion by

Justice Matchett.

“Not to be published in full.”


author: Mr. Justice Riess

text:
    Jessie D. Gillett, Appellant, v. Williamsville State Bank, Appellee.
    Gen. No. 9,252.

      Opinion filed April 14, 1941.
    Rehearing denied June 11,1941.
    LeForgee, Samuels & Miller, Charles C. LeForgee and Carl R. Miller all of Decatur, and A. M. Fitzgerald, of Springfield, for appellant.
    Barber & Barber, of Springfield, for appellee.
   Mr. Justice Riess

delivered the opinion of the court.

This is an appeal by the plaintiff, Jessie D. Gillett, from a judgment entered against her on a directed verdict which was given at the close of the plaintiff’s evidence in favor of the defendant appellee, Williams-ville State Bank. Plaintiff had filed suit in assumpsit in the circuit court of Sangamon county, seeking recovery of the amount of a certain check dated July 7, 1933, in the sum of $581.90. The check had been drawn by one J. A Havey on the defendant bank payable to the order of plaintiff.

J. A. Havey operated a grain, feed and coal business as an individual and had maintained a general deposit and checking account with the defendant bank for a number of years. The grain business was operated at Elkhart, Illinois, in an elevator rented by hini from the J. A. Havey Company, a corporation. The plaintiff had sold Havey 701 bushels and 5 pounds of wheat grown on her lands, which was delivered by wagon to his elevator on July 1, 3, 5 and 6, 1933. On July 7th, he gave her the check for $581.90 for the aggregate sale price of the wheat. Other wheat had also been placed in the elevator, both prior and subsequent to the time in July when her grain was so delivered. All of this wheat had been mixed in one elevator bin, from which Havey made several. shipments and deposited the checks and drafts with bills of lading attached to his deposit account in the defendant bank on and prior to July 11th.

Plaintiff indorsed and deposited the check to her account in a Decatur bank on July 8,1933, which latter bank mailed the same with numerous other checks to the Federal Reserve Bank of Chicago, and the latter in turn mailed them to the defendant bank for collection on July 10th. The list contained 49 items aggregating $1,920.27, and the checks reached the defendant’s banking house on the morning of July 11th. All checks received that morning, including the above, were examined by the cashier and sorted by him into two lots; those to be marked paid and those which were not to be paid. The payor’s accounts were examined to determine whether funds were on deposit to pay the checks, and this particular check was put through the bank’s cancelling and perforating machine between nine and ten o’clock on that morning with the other checks which were to be marked paid, and was so marked and perforated as follows: “Paid 7-11-33.” At that time, Havey’s deposit account contained $4,467.66, which fact was known to the defendant.

Later, about three o’clock p. m. of the same day, the check was indorsed on the back “Cancelled through error,” over the cashier’s signature and was mailed back to the Federal Reserve Bank at Chicago either on that evening or the following day with a ticket attached thereto stating “Not sufficient funds.” This letter was received by the Chicago bank on July 13th. At 8: 49 p. m. of July 11th, a telegram was sent by the defendant bank to the Chicago bank saying that they were “returning unpaid check — .” No debit of this check was made to Havey’s account, nor was any entry whatever made on the books of the defendant bank. The above balance in Havey’s account was applied by the defendant bank toward the payment of its $9,500 Havey note and his account was then closed out. The drawer of the check knew nothing of the bank’s action until the following day, when the plaintiff also learned of defendant’s action through the Decatur bank, which was notified of the telegram by the Chicago Bank. The Chicago bank closed its doors for the day at 2:00 p. m. but received telegrams to 5: 00 p. m. This telegram was delivered to it on the morning of July 12th. The list of 49 checks (plaintiff’s Exhibit J) sent by the Chicago Bank to defendant bank, including plaintiff’s check, bore the stamp “Paid July 12, 1933,” and opposite the check in the list was a penciled notation 7/12. These dates and marks were not explained.

Havey had lived at Elkhart for about 22 years and had transacted all of his banldng business with the defendant bank. The business consisted principally of purchasing grain from the farmers in his community, and payments for the grain were usually made by checks drawn on the defendant bank.

In the operation of his elevator business, Havey had carried a line1 of credit with the Williamsville State Bank since 1926. In July 1933, this credit amounted to $10,000, collaterally secured by a mortgage dated April 11, 1933, on the J. A. Havey Elevator Company leases and other property securing a collateral note for said amount due 2 years after said date with 6 per cent interest per annum. On July 11, 1933, the bank also held Havey’s personal note for $9,500 supplementing said collateral security, which latter note on which the above-mentioned deposit account was credited, had been executed on April 12,1933, but no due or maturity date of this personal note appears anywhere in the record, nor does it appear that the same had become due and payable. Havey’s purpose in securing this line of credit from the defendant bank was to obtain capital with which to conduct his business of buying grain, which had been previously discussed by him with the officers of the defendant bank in which the proceeds of his checks, drafts and bills of lading were then and had been for several years prior thereto regularly received and deposited to his account.

' It further appears from the plaintiff’s evidence that between one and two o’clock of the afternoon of July 11th, Havey had a talk with witness John E. Jones, who was both the president and a member of the board of directors of and worked at the defendant bank and was also a director of the Havey Corporation, concerning Havey’s financial affairs, in which Havey spoke of the fact that a drop in the wheat market would financially embarrass him. In this conversation, which occurred at the home of Jones, who was called for cross-examination and testified under section 60 of the Civil Practice Act (sec. 184, ch. 110, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.060]), nothing was said to Havey relative to making any further arrangements about or payment of his note or obligations to the bank or that the same had become due. Ho thing was said about the bank taking over the amount of his deposit or crediting it upon the $9,500 note held by the bank and nothing whatever was said about the check in question.

The case was tried before a jury upon issues joined by answer and reply under the allegations of counts one, two, four and seven of plaintiff’s second-amended complaint. No evidence was offered by the defendant. The trial court, after plaintiff’s evidence was heard, denied plaintiff’s motion to file amended counts one and two so as to conform to the alleged proofs, which denial was assigned as one of numerous alleged errors herein. The motion to file the amended count one of-the second-amended complaint was warranted under the evidence herein and should have been allowed by the court under the provisions of section 46 of the Civil Practice Act (sec. 170, ch. 110, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.046]). It was an abuse of discretion under the evidence herein to deny the plaintiff the right to amend the complaint to conform to the testimony. Jackson v. Jackson, 294 Ill. App. 552, 14 N. E. (2d) 271; Delfosse v. Kendall, 283 Ill. 301, 119 N. E. 346. The motion to file the amended count two was properly denied, since there was no evidence tending to sustain all of the necessary material allegation» thereof. The original sale of wheat by Havey from the mixed lots in the elevator to various purchasers with bills of lading attached in the usual course of trade did not evidence that the wheat had been held in trust by Havey and sold by him for plaintiff. It was an outright purchase of wheat in payment of which the check was given.

Numerous contentions are made as to propositions of law by the respective parties, upon which many authorities are cited, but the controlling question to be considered is whether or not a directed verdict should have been given to the jury in favor of the defendant at the close of plaintiff’s evidence under the pleadings and facts appearing in evidence and the rules of law governing the same.

Upon a motion of the defendant for a directed .verdict, the court can only determine whether or not there was any evidence, which, with all reasonable inferences therefrom, viewed in the light most favorable to the plaintiff, tended to prove the material allegations of the complaint or. some count thereof. If there was such evidence, it became the duty of the trial court to deny the defendant’s motion for a directed verdict and to submit controverted issues of fact to the jury, subject only to the giving of proper written instructions by the court as to the law applicable thereto. A motion to direct a verdict should be allowed if, when all the evidence is considered, with all reasonable inferences to be drawn therefrom in its aspect most favorable to the party against whom the motion is directed, there is a total failure to prove one or more necessary elements of the case.

If it appears from the evidence and reasonable inferences therefrom that the drawer of such check had on deposit in the drawee bank sufficient funds available for the payment thereof and that such bank had so honored and accepted the check in writing or collected the same, the plaintiff has established a prima facie cause of action. The intention of the parties in relation thereto is ordinarily a question of fact to be gathered from their transactions both by word and action in so far as the same appears from the evidence.

It is provided by section 188' of the Negotiable Instruments Act (sec. 210, ch. 98, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 89.210]) that “A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check.” See also People v, Munday, 293 Ill. 191, 127 N. E. 364. And the bank’s acceptance of the check must be in writing. People v. Munday, 215 Ill. App. 356, aff’d 293 Ill. 191, 127 N. E. 364. The payee of an unaccepted check cannot sue and recover thereon from a drawee. Independent Oil Men’s Ass’n v. Fort Dearborn Nat. Bank, 311 Ill. 278, 142 N. E. 458. If, however, the acceptance of the check is made in writing at the request of the payee, the bank becomes liable to the payee. State Bank of Chicago v. Mid-City Trust &. Savings Bank, 295 Ill. 599, 129 N. E. 498,12 A. L. B. 989. Where a check has been certified by mistake and the rights of third parties have not intervened, the certification may be revoked. National Plumbing & Heating Supply Co. v. First Nat. Bank of Chicago, 260 Ill. App. 431. Acceptance is a promise to pay in the future and continues the life of the bill or check, whereas payment is the final act which extinguishes the bill. State Bank of Chicago v. Mid-City Trust & Savings Bank, supra. Whether or not the acceptance or collection and payment of a check was intended by the drawee or was made by mistake would ordinarily become a question of fact dependent upon the particular facts and circumstances of each case.

Under section 188 of the Negotiable Instruments Act of 1907, supra, upon the acceptance of a check by a drawee bank, to the extent of the funds, where funds are available in depositor’s account to meet the same, an agency relationship requiring them to transact the same arose, and having so existed, the relationship of debtor and creditor after acceptance existed between the bank and the payee of the instrument and it became the duty of the bank to forward the same pursuant to instructions from the forwarding bank, and failure to do so would make such drawee bank liable in a suit for recovery of funds after having accepted said check. If payment was so made, the bank will be required to account for such funds to the legal holder of the check. American Exchange Nat. Bank v. Gregg, 138 Ill. 596, 28 N. E. 839, 32 Am. St. Rep. 171; Guardian Nat. Bank v. Huntington County State Bank, 206 Ind. 185,187 N. E. 388, 92 A. L. R. 1056; Woodward v. Savings & Trust Co., 178 N. C. 184,100 S. E. 304, 5 A. L. R. 1561; Oddie v. National City Bank, 45 N. Y. 735, 6 Am. Rep. 160; Cohen v. First Nat. Bank, 22 Ariz. 394, 198 Pac. 122,15 A. L. R. 701.

The Illinois Act of 1931 which undertook to make such acceptance by the drawee bank conditional during the day on which it was received was not in effect and does not apply herein, since the same was declared unconstitutional in toto. People ex rel. Barrett v. Union Bank & Trust Co., 362 Ill. 164, 199 N. E. 272. Such contention offered as a special defense was on motion properly stricken by the trial court. The order of completed events, where no contract nor special custom to the contrary known to both parties appears, is controlling. National Bank v. Burkhardt, 100 U. S. 686.

While counsel have not cited and we are unable to find any case involving exactly parallel facts, the Illinois case of American Exchange Nat. Bank v. Gregg, supra, has been widely cited by State and Federal courts as illustrating what facts tend to evidence acceptance and payment of a check. In that case, it was held that where a bank accepts a check drawn on it, stamps the same as paid and enters the amount thereof to the credit of the holder presenting it, this will constitute payment of the check, although the bank may fail to charge the account of the drawer on its books with the amount and after such payment the bank will have no authority to charge back the amount of the check to the depositor, or his account, without his consent.

In discussing the facts, the court, at page 599, said: “As has been seen, the check Kershaw & Co. gave to D. Eggleston & Son was presented to the bank for payment, properly endorsed by the payees. The bank received the check, stamped it, paid it, and placed the amount thereof to the credit of D. Eggleston & Son upon the books of the bank. This must be regarded as a payment of the check. The transaction was as complete a payment as if the bank, when the check was presented, had paid in money the amount thereof into the hands of D. Eggleston & Son, and they, in turn, had deposited the money in the bank to their credit. When the check was presented and accepted by the bank and cancelled, and deposited to the credit of D. Eggleston & Son, as between the depositors and the bank the transaction was closed, and the bank had no authority afterwards, without the consent of D. Eggleston & Son, to charge the check back to their account. That act, without such consent, was a nullity.”

Numerous cases are there analyzed as being illustrative of the principle involved, among them being Oddie v. National City Bank, supra, from which was quoted the following in part: “Here the plaintiffs clearly put in the check as a deposit, and the defendant as clearly received it as such, and credited plaintiffs with it. The credit on the deposit ticket was as significant an act, evincing the consent of the defendant to the payment of it, as if made upon the pass-book of the plaintiffs and entered upon the books of the bank. ... In determining the legal effect of such transactions we must apply the same rules applicable to all contracts and business affairs, and carry out the intention of the parties, to be gathered from their acts and declarations and the accustomed and understood course of the particular business. Applying these rules, there can be no doubt but there was an express demand on one side, and consent on the other, that this check should be placed to the credit of the plaintiffs as a deposit. The legal effect of the transaction was precisely the same as though the money had been first paid to the plaintiffs and then deposited. When a check is presented to a bank for deposit, drawn directly upon itself, it is the same as though payment in any other form was demanded. It is the right of the bank to reject it, or to refuse to pay it, or to receive it conditionally, as in Pratt v. Foote, 9 N. Y. 463; but if it accepts such a check, and pays it, either by delivering the currency or giving the party credit for it, the transaction is closed between the bank and such party, provided the paper is genuine.”

The court then quoted with approval certain language from page 321 of Morse on Banking and" commented as follows concerning the case of National Bank v. Burkhardt, supra: “In Bank v. Burkhardt, 100 U. S. 686,. the quotation from Morse and the case of Oddie v. National City Bank are quoted with approval, and the doctrine therein announced fully sanctioned. Where a check is offered as a deposit, and received as such, the check being genuine, in the absence of fraud the bank becomes the debtor of the depositor, and the title of the deposit passes to the bank, and no reason is perceived why the transaction should not be conclusive and an executed one between the two parties. Indeed, any other rule would embarrass the transaction of business between banks and their depositors.”

The Illinois court then concluded (page 601): “Something has been said in regard to the fact that the check given to D. Eggleston & Son had not been actually charged to Kershaw & Co. on the books of the bank until after the check involved was presented and payment demanded. We do not regard this as a controlling element in the case. This was a matter of book-keeping, and the rights of the parties are not to be determined merely from the manner in which books are kept. When the check in question was presented, the question was, whether Kershaw & Co. at the time had funds in the bank sufficient to pay it. If they had, the bank was bound to pay the check; otherwise not. In determining this question the bank had the right to take into consideration a check drawn by Kershaw & Co., which had in good faith been previously paid, although such check remained on a spindle in the bank and had not been entered up by the book-keeper.” The fact that the Illinois statute has since provided for written acceptance by the drawee bank would not change the doctrine adopted by the court as affecting payment and completion of the transaction between all parties concerned. In that ease, it may be noted that a credit slip was issued to the depositor, while in the instant case, the check, after separation and examination of the account and signature of the drawer, was separated, placed with numerous other checks, all of which were cancelled by the bank, perforated and marked paid at a time when "the depositor’s account contained sufficient funds to make payment of the same in full. These facts clearly appear from the evidence, considered in the light most favorable to the plaintiff, against whom the motion was directed.

In the case of Nineteenth Ward Bank v-. First Nat. Bank of South Weymouth, 184 Mass. 49, 67 N. E. 670, in discussing the application of this rule, the court said: ‘1 When the bank, through its cashier, wrote upon the face of the note in its own name, as the indorsee and holder, that it was paid, and perforated it and put it in the files as a thing paid, nothing more was to be done as to the payment. By those acts there had been set apart and appropriated to the payment of the note so much of the deposit then standing to the credit of the makers as was sufficient for that purpose, just as though the makers had presented to the bank their check in payment of a claim due it from them. It is true that the proper records were to be made upon the books, but the payment is effected by the acts, and not by the record, and was valid even without records. Consequently the question of the subsequent records is not material. So far as respected the plaintiff, the defendant had received the money for the note, and was bound to remit it to the plaintiff.” The fact that in the latter case a note was so honored and stamped paid while in the instant case a check was involved in no way affects the application of the above principle.

In the case of People ex rel. Nelson & Trust Co. of Rockford, 353 Ill. 479, 187 N. E. 522, in discussing the trust relationship of the parties in which the drawee bank received a check for collection through another bank with directions to remit, but the drawee bank, before remitting, was closed by the State Auditor, the court cited with approval the rule applied in a Kansas case and in fifth edition of Morse on Banks and Banking, therein cited, commenting as follows: “We hold that when the Tolmie check was presented to the Rockford bank and canceled, the funds represented thereby became definitely a res upon which a trust might, and immediately did, impress itself, in the same manner and to the same extent as though Tolmie Bros, had withdrawn the currency and handed it back to the bank with instructions to remit it, without signifying the manner or form of remittance.”

When a draft or check is forwarded for collection and remittance and the collection is made, the proceeds become a trust fund for the benefit of the forwarder. People ex rel. Nelson v. Peoples Bank & Trust Co. of Rockford, supra; People ex rel. Nelson v. Bank of Rushville, 270 Ill. App. 416; People v. Iuka State Bank of Iuka, 229 Ill. App. 4.

While it is a recognized rule of law in this State that a bank may set off the account of a depositor from whom a past due obligation and indebtedness has accrued to the bank, this right is not absolute and would not apply where a trust relation between a bank and a third person has arisen. Nor can a bank apply the deposits of a debtor to an unmatured indebtedness in the absence of express authority to do so. Elzy v. Morrison, 180 Ill. App. 711, 7 Am. Jur. 459.

In American Nat. Bank of Nashville, Tenn. v. Miller, 229 U. S. 517, 57 L. Ed. 1310, 33 Sup. Ct. 883, quoted in Cohen v. First Nat. Bank, supra, it is said by the court, speaking through Mr. Justice LaMar: “There are some disadvantages of sending a check for collection directly to the bank on which it is drawn, but when such bank perforins the dual function of collecting and crediting the transaction is closed, and, in the absence of fraud' or mutual mistake, is equivalent to payment in usual course. ... In the present case it was as though an officer of the Macon Bank had presented the check to the teller of the Nashville bank, and, on receiving the money, had paid it back over the counter-for deposit to the credit of the Macon bank.” ■

In Arkansas Trust & Banking Co. v. Bishop, 119 Ark. 373, 178 S. W. 422, it was held that whether a bank which has issued a deposit slip to the holder of a check, drawn by another depositor on the bank, intended thereby to pay the check is a question of fact; that if it did so intend to pay the check by the issuance of such a deposit slip, it cannot thereafter rescind it. The intent of the parties must be inferred from what has been done. National Bank v. Burkhardt, supra. In some cases, the only thing that was done was to make an entry of credit upon the depositor’s passbook, and it was held that the bank had not the right to cancel the credit thus entered. Bryan v. First Nat. Bank of McKees Rocks, 205 Pa. 7, 54 Atl. 480.

To the contrary, the appellee has cited certain cases from other States supporting the view that canceling, marking or stamping a check paid or cancelled does not alone constitute payment. Included therein are certain cases cited from Oregon, Indiana, Tennessee, Oklahoma and California.

In several of these cases, an examination of the authorities discloses that certain customs rendering the acceptance or payment conditional during- the day or for a given length of time or wherein express provisions were printed in the passbook are discussed. Some of these authorities do hold that stamping of payment upon a passbook or check or slip or even entry thereof as a credit against an account of the drawer are insufficient to constitute payment. While the latter rule has been applied in some States under varying facts, it is not in accord with the trend of authority in Illinois or of the Federal Courts or of New York, Massachusetts and certain other States to which we have referred.

The more general and better opinion seems to be that such actions as evidenced the written intention of the drawee bank to collect against the account of the drawer, where his deposit is sufficient to meet such payment, whether evidenced by stamping the checks as paid (unless done by actual mistake or where forgery is involved) or by issuance of deposit slips or crediting the same upon the books of the bank constitute evidence tending to show payment, and where such evidence appears in the record, even though there may also be evidence to the contrary as to the intention of the drawee bank, both the question of payment and the intention of the drawee bank become questions of fact, which, under proper instructions of the court as to the law, should be submitted to a jury for determination.

Moreover, it does not appear from the record whether the indebtedness on said note was or was not matured, in which latter instance, the bank would not have been justified in any event in taking over the account without express authority. Elzy v. Morrison, supra; Levinson for use of Fleisher v. Home Bank & Trust Co., 251 Ill. App. 523; Fort Dearborn Nat. Bank v. Blumenzweig, 46 Ill. App. 297. Nor would the court, under the above state of the record, be justified in assuming without affirmative proof in the record that the bank’s indebtedness thereon had become due and payable, or in assuming under a motion for a directed verdict, that the claim was past due. The note upon which the credit was made was identified but was never offered in evidence.

For the reasons herein given, we hold that the court erred in allowing defendant’s motion for a directed verdict and instructing the jury to find for the defendant and in entering judgment thereon; that under the facts in evidence, the amendment of count one should have been allowed, the motion to exclude the evidence and for a directed verdict denied, and the cause submitted to the jury on the questions of fact in issue. This case is therefore reversed and remanded for trial in accordance with the holdings herein.

Reversed and remanded.


author: Mr. Justice Biess

text:
    J. Ward Hopwood, Appellant, v. Sheridon Green and Raymond Snow, Appellees.
    Gen. No. 9,283.

      Opinion filed April 14, 1941.
    Rehearing denied June 11, 1941.
    C. H. Jenkins and Harold M. Olsen, both of Springfield, for appellant.
    Thos. P. Beep, of Petersburg, for appellees.
   Mr. Justice Biess

delivered the opinion of the court.

Plaintiff appellant, J. Ward Hopwood, has appealed from a decree of the circuit court of Menard county entered against him and in favor of Sheridon Green and Baymond Snow, defendant appellees herein. The case was wrongfully appealed to the Supreme Court and was transferred by that court to this court for review.

A temporary injunction had been granted wherein the defendants were restrained from removing or interfering with certain buildings and fixtures in question which were located on quarry premises owned by the plaintiff, on the ground that they were real fixtures or had in any event been abandoned by the tenant and become a part of the real estate. This was denied by the defendants, who contended that they were removable trade fixtures, had not been abandoned and were owned by the defendants, who had acquired them by virtue of an execution sale under a judgment which they held against W. O. Gibson and W. M. Gibson, who had installed and used them in the operation of a limestone quarry on plaintiff’s land under a written lease contract between the plaintiff and lessees, against whom the defendants had procured the judgment for unpaid wages and caused said property to be levied upon and sold by the sheriff of Menard county.

The pleading’s upon which issues were joined consisted of plaintiff’s complaint in equity, defendants’ answer and counterclaim and plaintiff’s answer thereto. The cause was heard by the court and resulted in findings and decree against the plaintiff under the complaint as amended and in favor of the defendants on their counterclaim, from which decree this appeal is taken.

The errors assigned were in substance as follows: That the court erred in not finding and holding thac the buildings and fixtures attached to the soil were the property of the plaintiff and a part of the real estate or in not holding that they were abandoned trade fixtures acquired by plaintiff through default and forfeiture under the lease and surrender of possession of the premises; that the court erred in holding that the same were trade fixtures and had not been abandoned and were acquired and owned by the defendants through valid levy and sale under execution.

It appears from the evidence that the plaintiff Hop-wood owned 11% acres of ground near what is known as Indian Point in Menard county, which tract was underlaid with limestone suitable for quarry purposes. On September 25, 1938, the plaintiff entered into a written lease of the premises with one S. D. Gibson of McLean county for the purpose of installing and operating a stone quarry by the lessee, who with a brother, W. O. Gibson, and son, W. M. Gibson, erected and placed thereon certain structures, fixtures and equipment to be used for that purpose.

The lease was for a term of 10 years, with option of renewal, and provided for the payment of certain royalties as rental. Lessee was to furnish and move at his own expense all necessary buildings, machinery and equipment onto the premises and begin operation within 60 days and to pay plaintiff as royalty 10 cents per ton of rock removed from the premises during the term, and if this did not amount to $2,000 per annum, that amount in royalty was guarantied while the machinery remained on the premises. It was further provided that if the lessee ceased operation of the plant for a period of 90 consecutive days the agreement, at the option of the lessor, was to become null and void.

The fixtures and buildings in controversy consisted of a scale house, two bins to hold crushed rock and a lunchroom and office. The scales were brought to the premises in a truck from another location at El Paso, Illinois, and installed in the scale house on concrete posts and foundation, in which posts a piece of iron was imbedded, on top of which the scale beams rested loosely. The bins for crushed rock had been taken down and hauled to the plant in sections from El Paso, where they had been used to hold phosphate and were made in three-foot sections set up on floor boards and roofed over. The above were placed partially upon cement and rock on which 2 by 10 floor boards rested and were removable. The scale shed was 7 by 14 feet and was so built that it could be moved on a truck. The lunchroom, 14 feet square, was constructed for the use of the working men and could be sawed in two and hauled on a truck. Plaintiff insisted that they were not made to be taken down; that the removal would leave rock and cement foundations in the quarry; that some of the ■ buildings have been taken down but are still there. There is little material difference in the descriptions of the quarry buildings and its equipment.

The quarry was operated by the Gibsons, W. O. Gibson and his son, W. M. Gibson, called the Indian Point Stone Company, until about the middle of October, 1939, during which time approximately $400 in royalties had been paid, and the plaintiff contended that there remained due and unpaid under the terms of his lease the sum of $1,600 minimum royalties then accrued. It further appears that for wages in the quarry, there had become due from the Gibsons to defendant Raymond Snow the sum of $459.44 and to defendant Sheridon Green the sum of $447.51, for the recovery of which they filed suit and caused a writ of attachment in aid of suit to issue and levy to be made upon said buildings and equipment by the sheriff of said county on November 7,1939.

Subsequent to making levy on the property, the sheriff had on the 8th day of November, 1939, made arrangements with the plaintiff to become custodian of the property for him pending disposition of the above suit which was followed by execution sale of the property to the defendant Green on the sixth day of January, 1940. The plaintiff signed a paper duly entitled in that cause agreeing to become such custodian and was told that he would be paid for acting as custodian of the property levied upon and was subsequently paid therefor, which receipt signed by the plaintiff acknowledged that he had received the same on November 7, 1939, as custodian thereof “to hold for him (the Sheriff) to await such disposition thereof as the Court shall hereafter direct under a writ of attachment in aid levied thereon, ’ ’ and which described and itemized the property as “the following described chattels (giving-list) together with the buildings, storage bins, shop tools, office equipment and miscellaneous articles used in operating the Indian Point Stone Company and located upon the land leased therefor of J. Ward Hop-wood in Menard County, Illinois.”

Prior to the day of execution-sale on January 6, 1940, plaintiff consulted an attorney and a letter was written to defendant Green and his counsel demanding-removal of certain of the machinery and equipment from the above premises. On January 2, 1940, the lessees notified the plaintiff that they did not intend to operate the plant any longer and “have released to you, as your property, the buildings on said premises.” This was long after their interest in these buildings had been levied upon and held by the sheriff during the month of November. Thereupon, the plaintiff, through his counsel, notified defendant Green and his counsel of record in writing- to promptly remove the machinery and equipment from said premises and therein mentioned one Lipman pulverizer or hammer mill, two elevators, one Twin City tractor, one four-inch water pump with motor, one 1,000 gallon outside gasoline tank located upon the premises owned in fee by J. Ward Hopwood.

It further appears that on April 7,1939, the Gibsons had executed to one Angelia Hayes a chattel mortgage on all items of property claimed by the defendants, which was recorded on May 12, 1939, securing a $7,000 note due April 4, 1942, describing items of machinery and equipment and “buildings, storage bins, shop tools, office equipment and miscellaneous articles used in the operation of quarry, ’ ’ and which record was contended to constitute additional notice to plaintiff Hop-wood of such lien and claim.

Plaintiff stated that in the conversation concerning the custody of the property, something was said about trying to find a lessee for the property and that he agreed that the stuff might be left there for 30 days and later agreed to a 10-day extension; that at the expiration of this period, the defendants started to remove the fixtures and property mentioned in the levy, custodian’s receipt and bill of sale under execution. Plaintiff ordered them to stop and to leave the premises, which defendants refused to do, and he filed his complaint and secured a temporary injunction restraining them from going on the premises or removing the fixtures until further order of the court.

The early decisions in England, as well as in this country, were very firm in holding that when personal property became a fixture by annexation to the real estate by some permanent method the personal property lost its identity as such and became real estate. The more modern decisions have broken away from this rule and a more liberal construction is now given in favor of holding fixtures personal property where that intent can be gathered from the conduct or action of the parties. Thuma v. Granada Hotel Corp., 269 Ill. App. 484; White Way Electric Sign & Maintenance Co. v. Chicago Title & Trust Co., 368 Ill. 482, 14 N. E. (2d) 839; National Bank of Republic v. Wells-Jackson Corp., 358 Ill. 356, 193 N. E. 215; Sword v. Low, 122 Ill. 487, 13 N. E. 826.

As between landlord and tenant, improvements put upon the demised premises by the latter for the purpose of trade or manufacture, which can be detached without material injury to the estate, may be removed by him before he quits the possession. Galena Iron Works Co. v. McDonald, 160 Ill. App. 211; Sanitary Dist. of Chicago v. Cook, 169 Ill. 184, 48 N. E. 461.

Whether or not a tenant or those who hold through or under him have actually discontinued or abandoned possession of the premises often becomes a question of fact to be determined by the intention of the parties as evidenced by their words and conduct.

The giving of a chattel mortgage to become due at a future date upon the fixtures in question is strong evidence that the mortgagor intended and considered the property to be and remain personal property, and the due execution and recording of such mortgage has been held to constitute implied notice to the owner of ■the freehold of such claim. Thuma v. Granada Hotel Corp., supra; Sword v. Low, supra. So, in the case of a writ of attachment. Hewitt v. General Electric Co., 164 Ill. 420, 424, 45 N. E. 725.

The respective parties do not differ materially in their contentions as to principles of law, but have disagreed as to what is shown or proven by the facts and as to the rules of law applicable thereto.

At the time the lease was entered into, there were no buildings, fixtures nor improvements on the quarry tract. All structures, machinery and equipment for the operation of the quarry were put there by lessee at his own expense and were principally moved there from other locations and plants which were operated under the name of Gibson Construction Company. They were to be used by lessees in conducting the trade and business of quarrying and pulverizing- stone to be sold upon a royalty basis. The lease further provided that the lessor might pasture the premises; was in nowise to become responsible for accidents or damage to any person' or property that might occur in the lessees’ quarry business or operations upon said premises and that the party of the second part further agreed that “while their machinery is on said premises, he will guarantee first party $2000 per year royalty.” The lease extended for a 10-year period with option of renewal to the lessee on the same terms.

Sometime after the lease was entered into and operations began, the lessee had executed and recorded a chattel mortgage covering the equipment, fixtures and machinery in controversy, indicating without question his understanding at that time that the buildings mentioned therein were intended to be personal property. The lease itself spoke of the lessees’ equipment as “their machinery” and made the royalty payable while the same remained on the premises. This is a rock quarry and its does not appear that the removal of the structures housing the machinery and equipment from their posts or foundations in the quarry would materially injure the freehold. The rule as to trade fixtures between landlord and tenant, arising from the presumption that their annexation was accessory to the trade or calling of the tenant, and not to the land, is another illustration of the rule that the intention with which the annexation is made will control as to whether the article attached has become a permanent fixture or not. Sword v. Low, supra; Thuma v. Granada Hotel Corp., supra.

We find and hold that the structures, machinery and equipment in question were and were intended to be trade fixtures, and as such, were removable during the term of the lease, unless the same were abandoned by the lessee prior to the time of the levy thereon by the defendants under their judgments and executions.

As to the issue of abandonment, it appears that the quarry business was operated until on or about October 21, 1939, when the lessees, who were then in arrears both in their payment of royalty to the plaintiff lessor and to the defendant workmen for wages, indicated their intention to discontinue business. However, theretofore, all buildings, machinery and equipment were held subject to the chattel mortgage lien of record. None of the personal effects, equipment or property of the lessees was removed from the premises nor was any physical change made in the status of the property. The term of the lease had not expired nor had any forfeiture been declared nor possession taken by the lessor under the terms of the lease. There was some talk of making other arrangements concerning refinancing, operating or disposing of the business to other persons. On November 7, 1939, the defendants filed suits to recover their wages and the attachment in aid of suit was levied upon the buildings and property in controversy by the sheriff and later sold under executions on the defendants judgments. The evidence is clear that thereafter, the plaintiff became the custodian of the property so levied upon and acknowledged such status in writing to the sheriff pending the outcome of the defendants’ suits and claims against the property. The interest levied upon was the entire interest of the tenant Gibsons.

The plaintiff not only did not claim or assert that he owned the buildings and property at that time or that the same had been abandoned, but on the contrary, he accepted and received pay from the sheriff for caring for the buildings, equipment and fixtures, all expressly mentioned and set forth in his receipt. The sale had been advertised for January 6, 1940. It was not until December 26,1939, that the plaintiff asserted a claim to the same as real fixtures belonging to and a part of the freehold by a letter to the sheriff, plaintiff’s exhibit No. 4. It was not until January 2, 1940, that the lessees, whose interest was then held subject to the attachment lien of the defendants, undertook to notify the plaintiff in writing that they “did not intend to operate your- plant any longer and we have released to you, as your property, the buildings on said premises.” All that happened between the lessor and lessee after defendants had levied upon the property and cannot affect the rights of the defendants under the issues -herein. After the property was purchased by defendant Green, the right and claim asserted by defendants thereto was still recognized by the plaintiff, who consented to an arrangement whereby the property purchased at the sale was to remain on the premises for 30 days while an attempt was made by the parties to sell defendants’ interest for $1,500 and lease the quarry to some other purchaser, which period was later extended for 10 days by agreement of the parties, according to evidence, the weight and credibility of which were matters to be passed upon by the trial court.

It further appears that plaintiff’s counsel advised defendants and their counsel by letter specifically setting forth plaintiff’s claim, which was not that the buildings had been abandoned but that the same were a permanent part of the real estate. "When the defendants, following such notice and claim, undertook to remove the fixtures and equipment which they had purchased, the injunction suit followed and the plaintiff’s claim to ownership by abandonment was first asserted in the pleadings after the counterclaim of defendants had been filed and amendment was then by leave of court added to the bill for injunction.

The chancellor, who heard the evidence and whose province it was to judge and weigh the credibility of the testimony of the witnesses in all controverted matters, found that the plaintiff failed to establish proof of abandonment of the premises prior to the time that the said personal trade fixtures and chattels were levied upon and taken into possession and title thereto acquired.under the defendants’ writs and judgments. In this holding, we find no error.

We further hold that the trial court did not err in dissolving the temporary injunction and dismissing the plaintiff’s complaint for want of equity or in finding the issues for and awarding the property in controversy to the defendants upon their counterclaim.

The decree of the circuit court of Menard county will therefore be affirmed.

Decree affirmed.


author: Mr. Presiding Justice Wolfe

text:
    Mary Scott and Fred Scott, Appellees, v. Freeport Motor Casualty Company of Freeport, Illinois, Appellant.
    Gen. No. 9,613.

      Opinion filed April 25, 1941.
    Rehearing denied June 24, 1941.
    Henry C. Warner, of Dixon, and Burrell & Burrell, of Freeport, for appellants; David M. Burrell, of counsel.
    George Spitz, of Dekalb, and Franklin J. Stransky, of Chicago, for appellees; Franklin J. Stransky, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

The plaintiffs, Mary Scott and Fred Scott, each procured a judgment against Bernard Eden for the injuries they received in an automobile collision between a car being driven by Fred Scott and the car owned and driven by Bernard Eden. The judgment in favor of Fred Scott was for $2,500, and of Mary Scott for $5,000. Executions were issued out of the circuit court of Lee county against Bernard Eden on said judgments, and the same were, returned unsatisfied.

At the time of the accident in question, Bernard Eden carried a policy of insurance in the Freeport Motor Casualty Company of Freeport, Illinois, insuring him against liability for.injuries he might cause by his automobile.

The plaintiffs, Mary Scott and Fred Scott, started a suit in the circuit court of Lee county against the Freeport Motor Casualty Company of Freeport, Illinois, for the amount of the judgments which they had procured against Bernard Eden. The petition sets forth the former suit, and the procurement of the judgments, as before mentioned, and alleges that on account of the defendant insurance company insuring Eden against liability for automobile collisions, that it was liable to pay the plaintiffs the amount of their judgments of $7,250. A copy of the insurance policy issued by the defendant company to Bernard Eden, was attached to the petition and made a part thereof. It is alleged that all the conditions precedent in said contract, had been fully performed, and the plaintiffs ask judgment against the defendant.

After numerous motions to strike, the defendant filed its answer in which it admits the issuance of the policy; that the premium thereon had been paid; that Bernard Eden advised the defendant of the accident in question, and served upon it the proof of loss. The answer denies that Bernard Eden performed all conditions precedent, and charges that Eden was guilty of one or more violations of the provisions of said policy, namely, “That at the time of the alleged accident in question, the said Bernard Eden was driving and operating said automobile on a trip taken for the purpose of selling cattle or livestock in the capacity as Salesman for the Morris Cattle Company, and that by reason of the employment of Eden by the Morris Cattle Company in this capacity, and his acting as their salesman, that the said policy of insurance became wholly void and in no effect.”

The second paragraph of the answer sets forth that at the time of the accident in question, said Bernard Eden was driving and operating his automobile on a trip taken for the purpose of selling cattle or livestock in the capacity of a salesman for the Morris Cattle Company, and that after the issuance of said policy of insurance, and after its receipt by the said Bernard Eden, and before the accident, the said Eden was employed by the Morris Cattle Company, as a salesman, and at the time of the accident, was so employed, and by reason of said employment, the insurance became wholly void and in no force and effect.

The fourth and fifth counts of the answer charge that the said Bernard Eden received personal injuries in the accident in question, and after the said accident, the Iowa Mutual Liability Insurance Company paid to Bernard Eden, as an employee, of the Morris Cattle Company, certain sums as compensation to said Eden for personal injuries, under and by virtue of the Workmen’s Compensation Act of the State of Illinois. Both the fourth and the fifth counts set forth a certified copy of an order of the Industrial Commission which was signed by Henry Horner, Governor, Industrial Commission, etc., and a receipt signed by Bernard Eden showing compensation paid to Bernard Eden in full as an employee of the Morris Cattle Company. Later in the hearing of the case, the court struck out that part of count four and five setting forth the order and receipt of the settlement with the Industrial Commission between Eden and the Morris Cattle Company. The plaintiffs filed a reply to the defendant’s answer, and denied that at the time of the accident in question, Eden was operating his car as a salesman for the Morris Cattle Company, and denied that before said accident, that Eden had been acting in the capacity as salesman for said Cattle Company.

Attached to the policy and made a part thereof, was a rider known as Special Farmer Endorsement, which is as follows: “In consideration of the reduced premium for insurance protection against the hazards specifically designated and covered by this policy, it is a condition of said insurance that the named Assured must reside on a farm outside of the limits of any village, town or city, and shall engage in no occupation other than farming throughout the term for which this policy is issued. In the event the named Assured, without the written consent of the Company endorsed hereon, changes his occupation or his place of residence or if the herein described motor vehicle is used for any other purpose other than ordinary farm and/or pleasure purposes, or if the Assured violates any condition of this insurance or knowingly permits the violation of any such condition, then this policy shall cease automatically and immediately become null and void.

“Attached to and forming a part of Policy No. 128583 of the Freeport Motor Casualty Company of Freeport, Illinois.
“Freeport Motor Casualty Company Paul F. Seitz, President
“C. P. Young, Secretary.”

After the fifth count of defendant’s answer was filed, the plaintiffs filed a reply in which they denied that Eden was driving and operating an automobile for the purpose of selling livestock in the capacity as a salesman for the Morris Cattle Company, and denied that after the accident, the said Bernard Eden elected to receive workmen’s compensation payments from the Iowa Mutual Liability Insurance Company insuring the said Cattle Company, as said Eden’s employer. They further reply that they have no knowledge as to whether or not the said Eden executed a document entitled, “Henry Horner, Governor, Industrial Commission,” etc., and state they have no knowledge whether Bernard Eden signed the receipt for the payments therein mentioned.

The case was tried on the theory that Bernard Eden having had a policy of insurance with the defendant, Freeport Motor Casualty Company, of Freeport, Illinois, and the plaintiffs having procured a judgment against Bernard Eden for personal injuries, which were caused by the car which is covered by the insurance in question, that therefore, the defendant company was liable to the plaintiffs to the amount of the judgment which they had procured against Eden. On the other hand, it is the theory of the defendant that the policy in question, provides that the company would be liable only in the event that Bernard Eden, the insured, followed no other occupation except farming. The car insured was to be used only by him in his farming operations and pleasure purposes, and if the car was used in any other manner, then the policy of insurance should become null and void. The instructions tendered by the plaintiffs and the defendant clearly indicate that this was the theory of each of the parties. "While the instructions are not numbered, or designated whether they were offered by the plaintiffs or the defendant, we take it that the sixth instruction given by the court, was offered by the plaintiffs and the fifth offered by the defendant.

The case was submitted to a jury who found the issues in favor of the defendant. The plaintiffs entered a motion for a new trial, which was granted by the trial court. It is from this order granting a new trial, that this appeal is prosecuted. In passing upon a motion for a new trial, the trial court can only consider errors that are alleged to have occurred during the course of the trial, and must accept the issues as presented in the pleadings at the time of the trial. Errors arising upon the rulings of the court to the pleadings furnish no basis for the motion for a new trial. George B. Swift Co. v. Gaylord, 126 Ill. App. 281; Celia v. Chicago & W. I. R. Co., 217 Ill. 326; Guyer v. Davenport, R. I. & N. W. Ry. Co., 196 Ill. 370.

We are favored with the court’s decision in granting the motion of plaintiffs for a new trial. The court based it wholly upon things that did not occur during the course of the trial, but construed the policy of insurance to mean, that any change in the occupation of the insured from a farmer, must mean one of a material change. This was not the theory upon which the case was tried, but as before stated, on a clear cut issue whether the insured, Bernard Eden, had engaged in the sale of livestock for the Cattle Company, and whether or not at the time of the accident in question, he was engaged in such business. The jury, by their verdict, have found that he was so engaged.

From an examination of the abstract, and reading the record of the evidence of Bernard Eden, we do not see how the jury could have come to any other conclusion than the one they did. Eden admits that he was selling cattle on a commission for the Cattle Company, and accepted workmen’s compensation from the insurance company, as being an employee of the Morris Cattle Company at the time the accident in question occurred.

Complaint is made in regard to the instruction given on behalf of the defendant, as being erroneous and prejudicial. We do not think this instruction is subject to the criticism, as stated by the appellee. The instruction states that the action is, that the plaintiffs had recovered a judgment against Bernard Eden; that now they are seeking to hold the defendants liable on account of an insurance policy, and that the rights of the plaintiffs against the insurance company were no greater nor less than the rights of Bernard Eden against the insurance company, and that the plaintiffs stand in the shoes of the said assured, Bernard Eden, and that the plaintiffs, before they can recover, must prove by. a preponderance or a greater weight of evidence, that Bernard Eden had complied with the terms of the insurance policy, and if they failed to do so, they could not recover. We think this instruction clearly states the law, and there is nothing in it that could be prejudicial or mislead the jury in regard to it.

An examination of the instruction at the bottom of the page on which we found the foregoing instruction, is one that we presume was given on behalf of the plaintiffs, as it directs the jury in the event they find certain facts, to find the defendant guilty. An examination of this instruction discloses that the jury was instructed that if they find, from a preponderance of the evidence, that Bernard Eden was engaged in no other occupation other than farming*, throughout the term for which said policy was issued, that he did not change his occupation or place of residence or occupation during the term of said policy, and they found that the motor vehicle in said policy was not used for any other purpose other than farming or pleasure purposes during the term for which said policy was issued, and that the insured did not violate any condition of said insurance policy, and the insured complied with all the terms and conditions of said policy, to find the defendant guilty.

If Bernard Eden had been the plaintiff and suing the defendant for the amount of judgment which the plaintiffs had procured against him, certainly it would be incumbent upon him to prove that he had complied with all the terms and conditions of the policy. The plaintiffs were bound to prove the same facts as Eden would be required to prove if he had been the plaintiff. Plaintiffs’ given instruction to the jury so states in substance.

Plaintiffs further insist that the court was justified in granting a new trial because of the action of one of the attorneys for the defendant, and have filed an additional abstract showing some of the alleged misdeeds. We have read the record itself of the misdeeds complained of, and we think the court was perfectly justified in cautioning the attorneys several times in regard to their behaviour, but it seems to us that the plaintiffs have no cause for complaint, as the record discloses that the attorneys for each side were very insistent on some of their questions, and their conduct is subject to some criticism.

On the whole, we think that" each side of the controversy had a fair trial; that the jury found the issues in favor of the defendant and under the evidence, as presented, could not have found otherwise than the way they did. It is our conclusion that the trial court erred in granting the plaintiffs a new trial. The order of the trial court granting the plaintiffs a new trial is hereby reversed and judgment is entered in this court in favor of the defendant.

Reversed and judgment entered in this court.