author: Mr. Presiding Justice Barnes

text:
    Ida G. Hogg, Individually and as Administrator of the Estate of Lloyd W. Hogg, Deceased, Appellant, v. Robert Eckhardt, Appellee.
    Gen. No. 32,233.

      Opinion filed June 19, 1928.
    Albert Fink, Francis M. Lowes and Henry M. Shabsin, for appellant.
    Cooke, Sullivan & Ricks, George H. Mason and Ben N. Breding, for appellee; George A. Cooke and Edward H. Fiedler, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is a suit in chancery in which each of the parties has appealed from the decree. • The appeals have been consolidated for hearing and will be considered together, 32,233 being complainant’s appeal and 31,999, defendant’s appeal.

Complainant is the widow of Lloyd W. Hogg, deceased, and sincé the death of her . son, who was a co-complainant, has prosecuted the suit individually and as administratrix of his estate. :

The bill seeks recovery of alleged assets of said estate. Those particularly sought consist of shares of stock in various corporations alleged to have been obtained from decedent by defendant Robert Eckhardt, without payment of any consideration, at a • time when a confidential and trust relation existed between them and when Hogg was mentally incompetent. The answer took issue upon these several allegations, and asserted defendant’s ownership of the stock but without disclosing how or when he became owner thereof, or the theory of the defense ultimately relied upon, that of a resulting trust, based upon the claim that the -stock was purchased by Hogg with Eekhardt’s money, but issued in Hogg’s name.

The stock thus involved consists of 1,320 shares of Union Carbide & Carbon Corporation, 593 shares of American Steel Foundries, 100 shares of Stewart-Warner Speedometer Corporation, 63 shares of Middle West Steel Utilities, and 2,438 shares of Sinclair Consolidated Oil Corporation, represented by various certificates issued from time to time between November, 1917, and December, 1920, inclusive, all issued in the name of Hogg and indorsed in blank by him at or about the time of their issuance, and transferred into the name of defendant Eekhardt in April, 1921, at a time when, as found by both the master and chancellor, Hogg was incompetent to understand and transact ordinary business, and when, as found by the chancellor, Eekhardt sustained a confidential and fiduciary relation towards Hogg.

Indulging the presumption under well-settled principles of law that the transfers of said certificates of shares from the name of Hogg to Eekhardt under such circumstances were presumptively fraudulent and void (Roby v. Colehour, 135 Ill. 300, 341; Beach v. Wilton, 244 Ill. 413, 424), and that the burden of proof was thus cast upon Eekhardt to show by clear and convincing evidence that the transfers were honest and fair and upon an adequate consideration, the chancellor held that Eekhardt had met the burden as to the Union Carbide stock but had failed to do so with respect to the other shares of stock involved, and accordingly awarded the Union Carbide stock to defendant and the other shares of stock to complainant, dividing the costs between them.

While the master did not find there was an absence of a fiduciary relation between Hogg and Eekhardt he based his conclusions mainly on findings that there was no such domination or control over Hogg by Eckhardt that he became trustee for Hogg, and that Eekhardt’s possession of the stock so indorsed and transferred was presumptive evidence of ownership, and complainant had failed to prove the transfer while Hogg was of unsound mind and that it was without adequate consideration. Exceptions to these findings were sustained. Under the master’s theory the burden of proof was cast on complainant, while under the chancellor’s it rested on defendant.

We shall not undertake an analysis of the pleadings, or discuss the somewhat strained construction defendant places upon their intendment. Suffice it to say we cannot concur with the often repeated statements in his brief that the bill as amended purports to be based on an actual “assignment” of the certificates in question, or that such is the fact. While it is stipulated that the certificates were indorsed in blank at or about the time they were issued, it is plain that indorsement alone, without delivery, would not confer title. So, while Eekhardt was found in possession of them so indorsed, his legal title thereto rests upon the proof adduced under these issues:

1. Was there a relationship of confidence and trust existing between Hogg and Eekhardt?

2. If so, did said certificates of stock come into Eekhardt’s possession during its existence?

3. If these two questions be answered in the affirmative has defendant, upon whom the burden of proof would then rest, shown by clear and convincing evidence his ownership of said shares, or any of them?

4. Regardless of the existence of such a relation, was there any consideration paid by Eckhardt for said shares, or any of them?

The decree answers the first question in the affirmative and the others partly so. Before considering them certain uncontroverted facts should be stated.

Lloyd W. Hogg died at the age of 52 years, August 4, 1921, from an automobile accident, resulting probably from lost vision resulting from a brain tumor. In 1901 he entered the employ of the American Spiral Pipe Works, a manufacturing corporation, with which he was connected until his death, being its vice president, treasurer, and general sales manager from 1915. He never returned to his office after January 31, 1921, except for a short time in the following June to attend a meeting of the company’s stockholders. Prior to that time he had manifested eccentricities and symptoms of aphasia. The next day, February 1, 1921, he was stricken with severe pains in his head, to relieve which two sinus operations were had, one in February and one on March 14, when specialists diagnosed his trouble as a brain abcess or tumor on the left side of the brain. Accordingly a brain operation was had on March 31, by opening the skull about an inch and a half by two inches, and the brain bulged through the opening, a condition which continued to the time of his death. A post-mortem examination disclosed a glioma tumor in the left occipital lobe of the brain about three inches in diameter, with a calcified cyst over an inch in diameter, and a condition of degeneration. According to medical opinion the tumor had been growing from one to two years before his death and would cause defective vision and both word aphasia and object aphasia, with which he was afflicted more or less for many months, if not to some extent for a year prior to his death.

A close friendship between Hogg and Eekhardt had existed for many years. They exchanged invitations to dine twice a week, and. Hogg called Eekhardt on the telephone regularly at six o’clock every other evening of the week. Not only were they thus habitually together and in communication, but the relationship was so close and apparently confidential that Eekhardt on September 23, 1920, rented a safety deposit box in their joint names at the First National Bank, Chicago, where Hogg had a private box and a deposit account, and later, on April 19, 1921, rented another safety deposit box in their joint names at the Sheridan Trust & Savings Bank where Eekhardt kept his deposit account. He was Hogg’s1 almost constant attendant during the latter’s confinement at the hospital from such operations, and his daily companion up to his death. Strained relations had existed between Mr. and Mrs. Hogg, and they had broken up housekeeping in the previous August, he going to live at the Chicago Athletic Club, and she and their son (since deceased) at a hotel. About the middle of January, 1921, she and her sister went to California, where they remained until called back after the brain operation. Attention to many of the detailed arrangements for their departure and their return devolved upon of was assumed by Eekhardt. During Hogg’s confinement in the hospital Eekhardt alone (besides the doctors and nurses) was permitted to see Hogg. Eekhardt seems to have assumed authority in that matter. During that time he occupied an adjoining room, was almost in constant attendance upon Hogg and attended to all matters connected with his illness, and with Mrs. Hogg’s and the son’s necessities in the meantime, paying all expenses, for which he later had an accounting with Hogg. Hogg left the hospital April 14 and went to live with Eekhardt at the Grasmere hotel, owned and conducted by the latter. Later in that month Eekhardt made out the returns for Hogg’s Federal income tax for the year 1920.

What Mrs. Hogg learned of Hogg’s condition while absent in California, and even after her return, was mainly from Eekhardt. She saw her husband only once in that interval before his death. That was after he went to live with Eekhardt at the Grasmere hotel. While denied by Eekhardt there was much testimony to the effect that he kept both her and her relatives from seeing Hogg after the brain operation.

On February 1, 1921, Hogg owned 888 shares of common, and 700 shares of preferred stock of the American Spiral Pipe Works, with which he had been connected for many years and of which he was an officer. The dividends from these shares, together with his salary, amounted for the six years, 1915 to 1920, inclusive to $577,050. In January he sold the preferred stock for $73,500. A check for that amount was deposited by him February 25, 1921, in the Corn Exchange National Bank, where he then had a deposit. Eekhardt wrote the deposit slip. After Hogg’s death there was found in his private safety deposit box only said 888 shares of common stock, United States Liberty bonds for $1,100, war savings stamps for $1,155, and some promissory notes, shares of stock and other papers of doubtful value, and some watches and jewelry.

No memoranda of his possession of any other property or of the disposition of it was found — nothing to indicate what had become of his vast accumulations in the immediate preceding years. On April 20, six days after he left the hospital, he withdrew from said bank $40,000 in currency (consisting of three $10,000 bills and ten $1,000 bills). The day before Eekhardt had rented the safety deposit box at the Sheridan Trust & Savings Bank in the joint name of himself and “Wendell” Hogg, a name which it does not appear was used by Hogg in either his business or social relations. On July 5, Hogg cashed another check in his said bank for $10,000 in currency, the last he ever cashed. On April 20 and July 5, the days of such withdrawals, and after the hours they were made, Eckhardt visited that box. For what purpose it is not disclosed. He next visited it two hours and thirteen minutes after Hogg’s death. For what purpose ' is left for inference or conjecture. It was never visited by Hogg. The other box rented in their joint names was also visited by Eckhardt prior to Hogg’s death, July 5, 1921. Both of these boxes were found empty after Hogg’s death. The latter box and Hogg’s private box were opened by the representative of the State inheritance tax department on August 5, in the presence of Eckhardt and Mrs. Hogg. For some reason Eckhardt did not see fit to disclose to them the fact of the rental of the other box carried, as aforesaid, in his name and that of “Wendell Hogg,” and it was not examined until August 23, 1921.

While the withdrawal of such a large amount of currency, coincident with Eckhardt’s rental of a joint safety deposit box and his visit thereto, and its disappearance thereafter must remain unexplained in the absence of any memoranda left by the deceased, and because the law closes the mouth of defendant, the circumstances are not without significance in their bearing on the claim of a confidential and trust relationship. Together with the other facts of the case, all of which we deem it unnecessary to detail, they tend strongly to confirm the existence of such a relation between Hogg and Eckhardt at least from September 23, 1920, when Eckhardt rented the first safety deposit box in their joint names. Surely the procurement of a joint safety deposit box to which both had access would of itself seem quite sufficient to indicate a relation of reposed trust and confidence, which forms the very basis of a fiduciary relation, and from which it will he presumed (Leonard v. Burke, 226 Ill. 422), and “it is the confidence which one party reposes in the other, or is supposed to repose in him, which prompts the' courts to require frankness, candor and sincerity,” etc. (Casey v. Casey, 14 Ill. 112, 114.) Our Supreme Court has said:

‘ ‘ The term fiduciary or confidential relation, as used in this connection, is a very broad one. It has been said that it exists, and that relief is granted, in all cases in which influence has been acquired and abused, —in which confidence has been reposed and betrayed. The origin of the confidence and the source of the influence are immaterial. The rule embraces ■ both technical fiduciary relations and those informal relations which exist whenever one man trusts in and relies upon another.”

Using such language in Thomas v. Whitney, 186 Ill. 225, and again in Mayrand v. Mayrand, 194 Ill. 45, the coiirt added, “The only question is, does such a relation exist?” That, under the circumstances shown in this case, such a relation existed and that the proof was ample to support the finding of the decree of its existence at the time Eekhardt was found exercising ownership of stock in Hogg’s name and procuring the transfer into his own, we cannot doubt.

It follows therefrom that the burden was cast upon Eekhardt to show by clear, convincing and unequivocal proof that he acted with perfect good faith and did not abuse or betray the confidence reposed in him. (Id.) "When such a relation exists any transactions between the parties will be closely scrutinized by a court of equity “with jealous vigilance.” (Dowie v. Driscoll, 203 Ill. 480, 490.) The presumption is against their validity. (Roby v. Colehour, supra; Mayrand v. Mayrand, supra; Mors v. Peterson, 261 Ill. 532.) The rule is so universal we need not dilate further upon it. The question is, does the proof offered by Bckhardt rebut the presumption of fraud, or establish his claim to a trust arising from his alleged payment for the stock by evidence 11 clear, unequivocal and convincing, ’ ’ and ‘ sufficient to establish beyond a doubt the fact of payment by the alleged beneficiary.” (Akin v. Akin, 276 Ill. 447, 449), especially when reliance is placed mainly on parol testimony to establish such a trust. (Dodge v. Thomas, 266 Ill. 76, 86.)

It is urged as ground for accepting the master’s rather than the chancellor’s conclusions that there is an absence of proof of any domination or control by Bckhardt over Hogg. While we cannot concur in the contention as to the necessity of such proof and think the various circumstances of the relation, especially after the operations were resorted to, imply, if they do not affirmatively indicate, such control, yet we do not deem domination or control essential to establish a fiduciary relation. While under some circumstances it will be implied from the relation, where undue influence is claimed, it more frequently characterizes the abuse of the relation rather than the relation itself. As before stated the term “fiduciary relation” is a broad one, and courts of equity refrain from hedging it within set limitations. (2 Pomeroy’s Eq. Juris. [3d Ed.] par. 956.)

Holding, therefore, as we do, that such a relation existed between Bckhardt and Hogg at the time the former was found in possession of certificates issued to the latter and not expressly assigned to him, and that under such circumstances the burden of proof is cast upon Bckhardt to establish by clear and convincing evidence his ownership, or his defense of a resulting trust (Lurie v. Sabath, 208 Ill. 401; Roby v. Colehour, supra; Thomas v. Whitney, supra; Mayrand v. Mayrand, supra;. Dowie v. Driscoll, supra; Mors v. Peterson, supra), the main question presented is whether the proof adduced by Eekhardt is of such character.

We shall , first consider the evidence produced by Eekhardt as to his possession of such certificates prior to April, 1921, and prior to the time such relation was found to exist. It consists of the testimony of three witnesses, Draper, Warren and Taylor.

It was to Draper that Eekhardt delivered the certificates April 4,1921, for transfer into his name, having called him to the hospital the day before to make arrangements therefor. As before stated at that time Hogg was considered to be in a critical condition and lay strapped to his bed. For many years Draper was a salesman of stocks and bonds. In that capacity he dealt with Eekhardt and sold him stock. On one occa- ' sion, in February, 1920, when visiting Eekhardt at the Grasmere hotel he met Hogg and claims he saw the latter sign some half dozen certificates of Sinclair Oil and Union Carbide stock on their reverse side and turn them over to Eekhardt to witness; that he asked Hogg if he had been buying stocks, and the latter replied he had been buying some for Eekhardt. It is only the latter statement which has any special significance, inasmuch as all the stock in question was . so indorsed and witnessed. If the inference is sought to be drawn from that statement that that particular stock was bought for Eekhardt it .is somewhat strange that Eekhardt was called upon to witness an assignment to himself, even if there was an excuse for not specifically naming him as the transferee thereof. It is usually only disinterested persons who are called upon to witness signatures or acts that may later be called in question. But this witness is relied upon to establish Eekhardt’s possession of all the stock in question in July, 1920, when, as he claimed, he accompanied Eekhardt to a safety deposit vault in the Sheridan Trust & Savings Bank for the purpose of determining the transfer charges on such stock, which he said Eckhardt asked him to transfer. He then noted, as he claimed in his first answers, all the stock in question, attempting to enumerate “about” the number of certificates of each and other details, by which he could identify them. In the course of such examination he significantly reiterated seeing in particular the certificate for 100 shares of Stewart-Warner, which, however, was not issued until several months later. When his attention was directed to the fact that this and some of the other certificates had not then been issued, he explained that he was “just speaking in general about the certificates,” and then pretended to be able to identify them from the “signatures on their back.” That one dealing, as he was, both before and after July, 1920, in numerous and various stocks and bonds of different companies, dates and denominations, should be able to recall so many details with such accuracy as he undertook to state, especially as he had no personal interest therein and merely made a casual inspection to estimate the transfer charges, which he then only attempted to give approximately at between $125 and $160, — an estimate he may well have made without the necessity of going to the vault, — would seem to indicate either a marvelous memory or a too ready willingness to assist a friend to establish a crucial fact in the case. It is not difficult, however, to account for his ability to remember so many details, if, as probable and usual with careful lawyers, he was shown the certificates before taking the witness stand to see if he could identify them. -Such an important fact would hardly be left for development on the witness stand or to an untested memory from a casual inspection made three years before. It may well be asked why should Eckhardt have called him to estimate the transfer charges nine months before he delivered the certificates to him for transfer, and why should Eckhardt have taken that particular time to have it made?

The witness Warren, a hotel manager and friend of Eekhardt for many years, testified that the latter also took him to a deposit box. in the same place November 6, 1920, for the purpose of getting a canceled note he had paid Eekhardt November 6 (produced to verify the incident), and that he then saw two packages of stock certificates, one of Carbide and the other Sinclair stock, and that he “leafed them over” and noted that they were issued to and indorsed by Hogg. While he does not appear to have noticed any of the other stocks so specifically identified by Draper, we may well wonder why Eekhardt found it necessary to take him to his private vault merely to deliver a paid note, and what motive actuated the witness’ unusual conduct of “leafing over” and taking note of another man’s private papers in which he had no interest. We cannot but marvel that the right to personal possession and ownership of such a large amount of valuable stocks standing in the name of another and coming into the hands of defendant during an interval of three preceding years, as is his claim, should be left by a business man like him to hang upon such a slender thread. It taxes credulity.

Taylor, president of Hogg’s company, merely testified that on one occasion, apparently the latter part of 1920, knowing that Hogg as a subscriber to Carbide stock was entitled to the privilege of purchasing additional stock at $40 a share, he asked him if he was “going in any deeper in Carbide stock,” and Hogg replied that “he had bought some for a friend of his.” But that Hogg exercised such privilege for Eekhardt is not the only inference from such a statement and it certainly has no probative value to show his ownership of all, if any, of the stock in question. There is, however, a singular coincidence in the facts that about that time, on November 8, 1920, two certificates for Carbide stock were issued to Hogg, one for 100 shares, and another for 20 shares, and that Ray, a witness for complainant, testified that Eckhardt told him about the last of June, 1921, that he had only 20 shares of Carbide stock. We shall refer to Ray’s testimony later. That Hogg’s friendship for Eckhardt was such that he may have purchased stock for his benefit is not improbable. But its identity and amount cannot be left to mere surmise.

The only other evidence relied upon to support Eckhardt’s claim of ownership of the stock in question is that consisting of certain canceled checks drawn by him to his own order and indorsed, and téstified to as having been cashed by Hogg (though without his indorsement), part of them at the Union Trust Company and part of them at the Corn Exchange National Bank. All of said checks (except one dated February 12, 1916) were issued between April 27, 1917, and December 20, 1920, within the period of the issuance of the stocks in question. There were 49 of these checks, one for nearly every month, and sometimes two. Hogg cashed and received the proceeds of 34 of them aggregating $34,088.43 at the Union Trust Company, and of the other 15 aggregating $22,817.08, at the Corn Exchange National Bank. There is no direct proof of what he did with the proceeds. The inference that he used the same to buy stocks for Eckhardt’s benefit rests almost wholly, if not entirely, on conjecture. There is a singular absence of any documents or memoranda supporting the inference. Hogg closed his bank account at the Union Trust Company July 21, 1920, and opened an account with the Corn Exchange National Bank, which he maintained until his death. One of the singular features disclosed by the evidence is that the Union Trust Company’s records of Hogg’s account were missing, and hence could not be produced to show his deposits and withdrawals during the period of three years’ time when said checks were cashed there.

The reasonable market value of all the shares of stock in question on April 1, 1921, was $139,627.50. That of the Union Carbide stock awarded to Eckhardt was nearly $70,000 of that amount. There was no proof of their value at any previous date, except that the witness Eay said he sold some Carbide stock the previous year for a fraction over $40. But while we take notice that stocks fluctuate in value, we cannot presume in favor of defendant, upon whom the burden of proof is cast, that the market price of the stocks at the time of their purchase, which certainly was capable of proof, was any less than the stipulated prices in April, 1921. If proof on that subject would have favored defendant it is singular that it was not oftered.

Of the 1320 shares of Carbide stock 250 were issued in 1917, 250 in 1918, 600 in 1919, and 220 in 1920. Estimating the value of the Carbide stock at $53.12% a share (its market value April 1, 1921) and comparing the values with the amount of Eckhardt’s checks cashed by Hogg in the respective years the account would stand approximately as follows:

In the year, 1917, Checks $ 6,884.15 Stocks $13,280.00

” ” ” 1918, ” 12,539.23 ” 13,281.00

” ” ” 1919, ” 14,337.77 ” 31,875.00

” ” ” 1920, ” 23,193.81 ” 11,685.00

Total $56,954.96 Total $70,121.00

The inference sought to be drawn that these checks were given for the Carbide stock is no more plausible or to be presumed than that they were given for the other stocks issued in the same interval of time, to which Eckhardt also lays claim, or that they were for money due and owing from Eckhardt. (Bromwell v. Estate of Bromwell, 139 Ill. 424, 426.) The theory of the defense is that he paid for all of the stock in question. But inasmuch as 1200 shares of the Sinclair stock were issued in 1918, valued according to the stipulation aforesaid at over $25,000, and only 500 of the Carbide stock up to the end of that year, valued about the same, and the checks for the year were insufficient to pay for more than half of either, it is difficult to perceive upon what theory it can be held that Eckhardt’s checks were intended as payment for the Carbide stock only. There is no correspondence between the dates of the checks and those of the certificates, or in their respective amounts, that suggests they were intended as such payments. Prior to the • issuance of the first 250 shares of Carbide stock, which was on November 19, 1917, Eckhardt’s checks amounted to about $7,000. But the stock then issued was worth, as aforesaid, over twice that amount. At the end of 1919, the Carbide stock that had then been issued was worth $25,000 more than the amount of his checks up to that time. In July, 1920, when Draper visited Eckhardt’s safety deposit box and claims to have seen the stock in question Eckhardt’s checks had amounted to less than $46,000. But at that time there had been issued 2300 shares of Sinclair stock of that value, also 1200 shares of the Carbide stock worth over $60,000, all of the Steel Foundries stock worth over $15,000, and the Utilities stock worth over $1,100, a total value of nearly $125,000 of stock. Is it consonant with reason that Hogg had then delivered over stock of such value to Eckhardt for only $46,000? If the stock had been purchased at a less market value it was not difficult for Eckhardt, upon whom the burden rested to show a resulting trust, to prove the market value of these standard stocks on the dates the certificates were issued and thus account for a discrepancy of nearly $80,000. Without other testimony than was adduced in this case these figures are not reconcilable with such a claim. To support it requires basing presumption upon presumption and supplementing meager facts with conjecture.

But it appears that while the stock thus stood in Hogg’s name he received and cashed dividend checks thereon for over $13,500 on the Carbide stock, and received as dividends on the Steel Foundries two certificates for 30 and 63 shares, and $400 in checks, and two dividend checks of $100 each on the Stewart-Warner stock. Only one of these checks, that issued and received while Hogg was confined to the hospital from the brain operation, appears to have been indorsed by him and cashed by Eckhardt. But who ultimately got the proceeds therefrom is not shown. It appears, too, from deposits made to Hogg’s account in the First National Bank, that he received and cashed dividend checks subsequent to the time Draper claims to have seen the stock in Eckhardt’s box. Only by testimony of Eckhardt, which if not rejected for incompetency, must be given little weight in view of his interest and that no denial can come from the grave, does it appear that Hogg handed over to him the proceeds from any of the dividend checks. Such an important fact, unsupported by any documentary data of either the deceased or defendant, cannot be deemed established by such manifestly incompetent testimony, whether left in the record through inadvertence or otherwise.

Can it be said that the character of the proof adduced by Eckhardt, opposed as it is by so many significant and suspicious circumstances, meets the requirement of the law as to its probative .value? A close scrutiny of the record, which the rule of practice imposes in such a case, reveals so many circumstances inconsistent with his claim as to compel the conclusion that it does not.

Bay, an intimate friend of both Hogg and Eckhardt, called as a witness by complainant, had also invested in Carbide stock. He testified to the effect that Hogg informed him in 1919 that he had purchased Carbide stock as the result of certain information obtained through family connections. He also testified that shortly after June 28,1921, when Bay sold his Carbide stock, Eckhardt said he was foolish to sell it, and remarked: “Of course I didn’t sell mine; I only own 20 shares. I am investing my money in certificates of indebtedness;” that after Hogg’s death Eckhardt asked him if Mrs. Hogg and her brother had been down to see him, saying that they thought “Lloyd had got money planted every place, and if they ask you of any stocks that he has had, just tell them that you don’t know. Don’t give them any information at all, * * * impress upon her mind the value of this American Spiral Pipe Stock that he left her; that is more money than she ever dreamed of having anyway.” Eckhardt himself testified that he furnished them “as little information as possible.” He admitted having many conversations with Bay but denied these alleged conversations and numerous other statements attributed to him by Bay, many of which were of an entirely harmless character. One of the tests usually applied in such a case as to the relative weight of the testimony is the distinction to be made between that given by a disinterested witness and that by a litigant party to the record. (Podolski v. Stone, 186 Ill. 540, 547.) If both be deemed equally credible and unimpeached “the equilibrium may be destroyed by surrounding circumstances.” (Bonnell v. Wilder, 67 Ill. 327, 330.)

Other circumstances than those alluded to may be mentioned.

Beginning with his answer we find Eckhardt conceals his defense, which honesty and sincerity should have prompted him to disclose (Crone v. Crone, 180 Ill. 599, 606), and denies therein knowledge of important matters which the evidence discloses he knew to be true. In it he states that he is not advised that Hogg shortly prior to his death was possessed of large sums of money received by way of dividends from his shares of common stock for the American Spiral Pipe Company, and yet he made out Hogg’s income tax return on April 14, 1921, which showed dividends for the preceding year on that stock of $94,400. He also alleged in his answer that he was not advised that Hogg received $73,000, or any other sum, from the sale of that company’s preferred stock, but he was present when Hogg indorsed and delivered the certificates to the purchaser, and made out his deposit slip therefor. In it he denied Hogg was mentally incapacitated at any time to care for and manage his own estate, but he was daily present during the intervals Hogg was so found to be incapacitated, and knew he was strapped to his bed the day he arranged for the transfer of the stock in question. We might advert to his numerous unsupported denials of many prejudicial facts testified to by many witnesses, and inconsistencies in his testimony, but it would extend this opinion beyond reasonable limits.

And here we may pertinently make other inquiries which the record does not satisfactorily answer. Why, if Bekhardt was the real owner of the stock in question, did he include the dividends thereof for the year 1920 in Hogg’s income tax return which he made out because of Hogg’s illness? An amendment to his answer avers that he included them at the direction of Hogg. But that is consistent with Hogg’s ownership. If Bekhardt in fact owned the stock he owned the dividends thereon, and his personal interest as well as common honesty should have prompted him to pay the income tax instead of permitting Hogg to pay it. While he presented accounts to Hogg giving details of expenditures he made for him during and after Hogg’s illness, and proof of payment thereof, he produced no proof that he ever credited Hogg with the income-tax thus paid by Hogg which, according to his claim, should have been paid by himself. While he explained that he did not include such dividends in hi's own income tax return for the year 1920 because they were issued in Hogg’s name, and presumably, in the absence of any proof of his income returns for previous years never included them in his own tax returns, yet to support his claim to the stock he testified, as before stated, that Hogg gave him the proceeds of the dividends as he cashed them. It might reasonably be expected that if Eekhardt received over $16,000 in cash from such dividends it would appear somewhere in tax returns or in his book account or bank account. But the court was not enlightened by their production. Nor was his financial ability to pay out so much money disclosed otherwise than by the checks themselves. For aught that appears to the contrary they may have been given for other purposes, or the proceeds may have found their way back into his own account. There is a significant void of corroborative or documentary evidence to support his solitary word with respect to matters of such magnitude and consequence as would ordinarily be evidenced in some form of writing.

It does not, however, commend Eekhardt’s integrity (if we are to consider his incompetent testimony allowed to remain in the record), that the deposit boxes rented jointly in his and Hogg’s name were found empty after Hogg’s death, especially when he was the last to visit them, and hastened from Hogg’s deathbed to open one of them before it could be visited under the forms of law. It must be assumed that they were rented for the usual purpose of having something deposited therein in which they either had a common or a joint interest, or with respect to which they held a relation of trust and confidence. The hinted explanation that two boxes thus rented jointly in two different places were rented merely to hold private letters is more plausible than persuasive. The want of a satisfactory explanation by Eekhardt to the representatives of the estate, his sudden visit to one of the boxes almost as soon as he could leave Hogg’s deathbed, his failure to disclose at once the existence of the other, the absence of any data left by Hogg, or kept by Eekhardt himself, to support such an unusual claim, his admission that in response to inquiries by Mrs. Hogg and her brother respecting the condition of the estate he gave them as little information as possible, all cast a cloud of doubt and distrust upon his claim.

While the evidence discloses eccentricities of conduct on Hogg’s part, whether attributable to his disease or not, that a man with his reputation for attention to business details and handling over $100,000 a year income for six successive years prior to his death, should leave no data as to his investments or their disposition is at least so unusual as to cause surprise if not to be incredible.

Neither Hogg nor his family was shown to be extravagant. It is somewhat significant, therefore; that there is no account of his disposition of about $350,000 of the $450,000 he received from the American Spiral Pipe Works alone in salary and dividends from 1917 to 1920, inclusive.

Eekhardt himself had certainly met with considerable business success. He was the owner of the Grasmere hotel and scheduled its value in a report to the Dun Agency, July 8, 1920 — purporting in fact to be his own financial condition — at nearly $100,000. His bank account was carried in its name. Yet he did not then include among his assets any of the stock in question, which Draper claimed to see a week later in his possession, and which was valued a year later at about $140,000. Seemingly a man of such resources would not have been neglectful of some writing that would support his claim to so much property. Except from the offered but unconvincing excuse that he wished to conceal his stock investments from his wife, it remains unexplained why Eekhardt should not have purchased the stock in his own name. He appears to have bought some from Draper. It somewhat baffles inquiry, too, that if the purchase of the stocks in question was intended for his benefit, he should have acted as a witness, an act usually performed by a disinterested party, and not have been named as the transferee. Even if he wished to conceal his ownership from his wife he could still, if named as transferee, have held or sold the stock without her knowledge. Eather under such circumstances would the presumption obtain that having so witnessed Hogg’s assignment in blank he was not intended to be the transferee.

It may be unfortunate for Eekhardt that since death has sealed the lips of Hogg the law has closed his own. But we need not dwell upon the reason and justice of the rule which prevents him from making any explanation of these prejudicial circumstances and from answering the inquiries that suspicion so pertinently presents. It is sufficient to say that so long as they remain unanswered, proof of defendant’s claim cannot be deemed clear and convincing.

Accordingly the decree will be reversed so far as it awards to Eekhardt the Carbide stock and requires complainant to pay a portion of the costs; otherwise the decree will be affirmed. The cause will be remanded for entry of a decree in conformity with this opinion.

Reversed in part and affirmed in part, and remanded with directions.

Q-ridley and Scanlan, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Gridley

license: Public Domain

text:
    Oscar S. Lipcovitz, Appellee, v. Warren Printing Company, Appellant.
    Gen. No. 32,346.
    Opinion filed June 19, 1928.
    Dulsky, Friedman & Dulsky, for appellant; Simon H. Alster, of counsel.
    Harry J. Myerson, for appellee; A. Edward Aberman, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

In an action of the fourth class in contract there was a trial without a jury on May 23,1927, resulting in the court finding the issues against defendant and assessing plaintiff’s damages at $405. On the same day, after defendant’s motions for a new trial and in arrest of judgment had been overruled, the court entered judgment upon the finding against defendant, and this appeal followed. Plaintiff’s right of recovery, as stated upon the trial, was based upon a claimed violation of the provisions of the Securities Law of Illinois (Blue Sky Law), in force June 10, 1919, as amended. (Cahill’s St. 1927, ch. 32, p. 675 et seq.)

In plaintiff’s original statement of claim, filed September 8, 1924, he alleged that by agreement made on March 6, 1920, defendant agreed to sell to him 10 shares of its capital stock “as an interest in its business — the stock to be paid for out of the wages earned by plaintiff as a printer in the employ of defendant”; that, on the same day and pursuant to the agreement, he paid to defendant the sum of $300, and thereafter defendant made weekly deductions of $15 from his salary from March 20th to May 1st, 1920, inclusive, or a total deduction of $105; that the total amount thus paid by him is $405; that about May 1, 1920, his employment with defendant “was terminated”; and that, although often requested, defendant has refused to return to him said $405, which is “unlawfully withheld. ’ ’ It will be noticed that in this statement, which in our opinion does not state such facts as disclose a cause of action against defendant, no mention is made of said Securities Law, or that plaintiff’s suit is based thereon.

On October 21, 1926, plaintiff obtained leave to file, and filed, an amended statement of claim, containing substantially the same allegations, except that his said discharge from defendant’s employ about May 1, 1920, was made “wrongfully” and “without any cause,” and also containing the additional allegation that said stock was sold by defendant to plaintiff “contrary to and in violation of Sections 254-296, both inclusive, of Chapter 32 of the Illinois Revised Statutes, being the Securities Law or Blue Sky Law of the State of Illinois.” No facts are stated showing in what particulars, in the sale of said stock to plaintiff, defendant was guilty of a violation of any of the provisions of said Securities Law.

In defendant’s affidavit of merits to said amended statement of claim it alleged in substance that, when plaintiff purchased the stock, the agreement was that the shares were only to be delivered to plaintiff when the entire purchase price was paid; that plaintiff has refused to make any further payments; that defendant is ready and willing to deliver the stock when fully paid for; that plaintiff was not discharged about May 1, 1920, wrongfully or without cause; and that defendant, in selling said stock to plaintiff or in its agreement with him relative to the sale, was not guilty of any violation of said Securities Law.

In section 40 of said Securities Law (Cahill’s St. 1927, ch. 32, Ü293) it is provided that “all civil actions to recover money or for other purposes under this Act or based upon any provision of this Act must be commenced within five years after the commission of the act complained of.” We are of the opinion that in the present case the trial court erred in not sustaining defendant’s motion in arrest of judgment, and that the judgment cannot stand. The suit was commenced on September 8,1924. The acts complained of, as alleged and as shown by the evidence, occurred during March and May, 1920. In plaintiff’s original statement of claim no charge is made of any violation by defendant of said Securities Law, or is said law even mentioned. It was not until October 21,1926 (more than five years after the commission of the acts complained of) that plaintiff in his amended statement of claim made any such charge. This was a statement of a new cause of action, not previously mentioned, and came too late. (Bahr v. National Safe Deposit Co., 234 Ill. 101, 103; Allis-Chalmers Mfg. Co. v. City of Chicago, 297 Ill. 444, 449.) In the case last cited it is said: “The rule is well established that when a cause of action is stated for the first time in an amended count of a declaration the suit is regarded as having been commenced as to such cause of action at the time of filing the amended count, and if the Statute of Limitations has then run it will be a bar to the new cause of action stated in the amended count.” Plaintiff’s counsel here contend that, because defendant (in its affidavit of merits to plaintiff’s said amended statement of claim) did not specifically plead said section 40 of the Securities Act, Cahill’s St. ch. 32, If 293, as a bar to the action, the judgment can properly be affirmed. But we think that the decision and holdings of our Supreme Court in Hartray v. Chicago Rys. Co., 290 Ill. 85, disclose that the contention is without merit. That was an action brought under the Injuries Act, Cahill’s St. ch. 70, to recover damages for negligently causing the death of plaintiff’s intestate — said act requiring that “every such action shall be commenced within one year after the death of such person.” The court held (pp. 86-87) that “the time fixed for commencing an action arising under that act is a condition of the liability and operates as a limitation of the liability itself and not of the remedy, alone;” that “it is almost universally held that a provision in the statute creating the right, requiring an action thereon to be brought within a specified time, is more than an ordinary statute of limitations and goes to the existence of the right itself;” that “it is a condition attached to the right to sue at all;” and that “as the limitation of the time in which to sue is considered not merely of the remedy but of the right of action itself and the cause of action exists subject to the limitation, a declaration must allege or state facts showing that the action is brought within the time prescribed by the statute.” The right to bring an action either under the Injuries Act or under the Securities Law is wholly statutory, and a plaintiff, in order to successfully prosecute that right, must bring himself within the requirements of the statute. (See, also, North Side Sash & Door Co. v. Hecht, 295 Ill. 515, 520.) In the present case plaintiff did not make any claim against defendant under the Securities Law until October 21, 1926, and it then affirmatively appeared from his amended statement of claim that the acts complained of, because of which' he asked the return • of certain moneys by virtue of provisions of said Securities Law, occurred more than five years before October 21, 1926.

For the reasons indicated the judgment of the municipal court is reversed without remanding the cause.

Reversed.

Barnes, P. J., and Scanlan, J., concur.


author: Mr. Justice Scanlan

text:
    Joe Hantman for use of Marie Larson, Appellee, v. West Side Trust & Savings Bank, Appellant.
    Gen. No. 32,337.

      Opinion filed June 19, 1928.
    Rehearing denied July 2, 1928.
    Weissenbach, Hartman, Craig & Okin, for appelant.
    John F. Voigt, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

In the municipal court of Chicago, the plaintiff, Joe Hantman, for the use of Marie Larson, in a trial before the court without a jury, obtained a finding and judgment against West Side Trust & Savings Bank, a corporation, garnishee defendant, in the sum of $501.48. This appeal followed.

The following are all the material facts in the case: On April 18, 1913, in the municipal court of Chicago, Emil A. Oettinger recovered a judgment against Joe Hantman and Meyer Levine in the amount of $240.85. This judgment was assigned by Oettinger to Marie Larson on May 1, 1913. On September 23, 1926, after the judgment had been revived, Marie Larson caused to be issued a garnishee summons against the West Side Trust & Savings Bank et al. as garnishees. The writ — served on the bank on September 17, 1926 — directed the garnishees to answer as to rights, credits, choses in action, effects, estate, property or money in their hands belonging to Joe Hantman. On October 4, 1926, the bank answered that it had no property, money, etc., in its hands belonging to Joe Hantman. Later, the plaintiff filed interrogatories to the garnishee and therein for the first time, so far as the record shows, reference is made to the principal defendant as “Joe Hantman, alias Joe Handman.” As to certain interrogatories the bank answered that it made a real estate loan to one Jacob Roitman, July 23, 1926, in the amount of $50,000; that in connection with that loan the bank opened an account with Roitman on August 11, 1926, and credited the same with the said sum; that on September 16, 1926, the bank received an affidavit signed by Roitman and containing (inter alia) the following:

“The following is a true statement of the names of sub-contractors, and material men, the amounts of all contracts made and all money due and to become due and unpaid to material dealers, sub-contractors or workmen in the employ of the undersigned on or about above described building, * * * Name — H. Dubin; Amount of Contract, 18,000.00; Amount Due and to Become Due, 10,750.00 * * * United Iron Works; * * * H. Bclofsky; * * * Belmont Stair Works; * * * United Glass; * * * J. Handman; Amount of Contract, 5,500.00; Amount Due and to Become Due, 3,500.00. * * * Barron & Shapiro; * * * Chas. W. Bussey; * * * H. Tr of an sky; * * * Kavansky Bros.; * * * Albany Park Tile Co.; # * * Public Light Co. * * *”

On September 28, 1926, Roitman signed an order, directed to the defendant bank, to “pay to Joe Hand-man Plastering Contractor Three Thousand & no/100 Dollars for Labor & Material and charge same to my loan account on building situated No. 1815 S. Ridge-way Ave. Chicago, Ill. * * * Balance due $500 00/100.” On October 1, 1926, Joe Handman presented the order, together with waivers of liens of materials and labor, to the bank, and it thereupon issued its check for $3,000, payable to the order of Joe Handman, and this check, indorsed by Handman and deposited by him in the Liberty Trust & Savings Bank, was paid by the defendant bank, through the clearing house, on October 2, 1926. On October 16, 1926, Roitman issued a written order, directed to the defendant bank, to pay to J. Handman $500, and the bank issued a check for $500 payable to the order of “J. Handman,” and this check, with the indorsement “Joe Handman,” was deposited by the latter in the Liberty Trust & Savings Bank and was paid by the defendant bank, through the clearing house, on October 19, 1926. The bank charged both of these payments to the real estate loan account of Roitman on. the dates of the respective checks. On October 1, 1926, and October 16, 1926, other subcontractors and material men presented similar orders from Roitman to the bank, and these were paid by the bank in the same manner as it paid Handman, and the respective amounts of the orders were charged to the real estate loan account of Roitman: The bank, in making real estate loans, required all applicants to give an affidavit such as was made by Roitman and it also required the production of waivers of liens on all building loans before payments were made thereon; “that when Waivers of Lien are tendered to the bank in connection with a real estate loan, the proceeds of the loan are paid to the maker; that frequently the Bank pays directly to sub-contractors and contractors for work performed and material furnished by them upon orders issued by the maker of the loan * * *; that unless Waivers of Liens are presented with said orders, and upon inspection of the premises it is found that said work has been performed, and material furnished, payments thereof are not made.”

The defendant contends that under the pleadings • in this case the burden was upon the plaintiff to prove that Joe Hantman, the principal defendant, and Joe Handman, subcontractor, to whom the bank paid the amounts in question, were one and the same person, and that the plaintiff failed in that regard. We will refer to this contention hereafter.

The defendant next contends that even if it be ■ assumed that the defendant Joe Hantman and the subcontractor Joe Handman were one and the same person, nevertheless, at the time of the service of the writ of garnishment and up to the time of the filing of its answer, the bank did not have in its hands rights, credits, choses in action, effects, estate, property or money belonging to the principal defendant and that therefore a judgment could not properly be entered against it as garnishee, and it further contends that, regardless of the merits of the first and second contentions, the process in a garnishment action must designate with clearness and accuracy the name of the judgment debtor whose funds the plaintiff seeks to reach and that the plaintiff in the present proceeding failed in that regard, and that as the proof does not show that the bank had knowledge that the name of the principal defendant was not correctly given in the process or had reason to suppose that the garnishment proceedings were intended to be against its creditor, judgment could not be justly entered against it in the instant case.

We will pass upon the last contention first. In German Nat. Bank of Denver v. National State Bank of Boulder, 3 Colo. App. 17, 31 Pac. 122, it was held that a garnishee is unaffected by a notice served on him, wherein the middle initial of the person named is different from that of a person to whom he is indebted, unless lie is shown to have had actual knowledge that his creditor and the person named in the writ are the saíne, and in announcing this rule the court said: “It is not intended to so broadly declare this doctrine as to necessarily make it applicable to grants and contracts where the identity of the persons may be the subject-matter of easy proof, nor to cases of pleading which are susceptible of amendment without detriment to the rights and interests of- third parties, but simply and solely to those writs and notices by which it is sought to hold third persons whose rights may be affected by the error, and whose situation has changed before they may have in any known legal way become charged with knowledge and notice of the identity of the individual described by the erroneous name. '* * * Whether, if the evidence demonstrates that the holder of the fund is not misled by the error in the writ, and from the facts must know that he is indebted to the defendant in the suit, he may disregard the process and rely on a technical inaccuracy for his defense, is a question not clearly presented by the record, and it is therefore left undetermined.” Later, this case came again before the same tribunal (German Nat. Bank of Denver v. National State Bank of Boulder, 5 Colo. App. 427, 39 Pac. 71), and the principle of law laid down in the former decision, was restated and approved, and the court further said: “In the intricate and complicated business of banking, absolute exactness and particularity in regard to names is absolutely indispensible, not only for the security of the bank, but of those doing business with it. * * * Banks cannot presume that John A. Smith and John W. Smith are the same person. Creditors are supposed to know the names of their debtors, especially when, as in this case, the indebtedness is evidenced by a promissory note, and in bringing suit should be held to bring the suit against the proper person, or suffer the penalty of their own negligence.” In Terry v. Sisson, 125 Mass. 560, it appears that a writ was made out against Sarah Sisson, and a savings bank summoned as trustee. The writ was served on Sarah F. Sisson, and was afterwards amended accordingly. After service of the writ, and before the amendment, the bank paid to Sarah F. Sisson funds in its possession, deposited by her. The court held that Sarah Sisson and Sarah F. Sisson were different names; that while the misnomer could not be taken advantage of by the principal defendant, and that, as between her and the plaintiff, it might be amended, at the discretion of the court, nevertheless, “such an amendment cannot affect intervening rights of third persons. The only writ served upon the trustee was against Sarah Sisson. The trustee, having no funds belonging to any person of that name, and acting, so far as appears, in good faith and with no notice or knowledge that the person intended to be sued was Sarah F. Sisson, lawfully paid over to the latter the funds in its hands belonging to her, and cannot by the subsequent amendment of the writ be made liable to pay the same over again to the plaintiff.” In White v. Springfield Institution for Savings, 134 Mass. 232, the question was whether the defendant, summoned as trustee in the original action, when it afterwards paid the deposits standing in the name of James Shay, knew or ought to have known that this depositor was the same person who was the principal defendant in the original action, and named in the writ James Shea, the trustee having deposits standing in each name but belonging to different persons. The court held that the question whether Shay and Shea were different names or only different ways of spelling the same name, was one of fact, and not of law, and that the burden was upon the plaintiff to prove that the trustee should be charged, and that the further question whether the trustee should have known or supposed that James Shay, whose deposit he paid, was the defendant in the original suit, was also a question of fact; that the presiding justice had found the facts in favor of the defendant, and the exceptions of the plaintiff were overruled. In Citizens’ Savings Bank v. Boswell, 127 Ky. 21, 104 S. W. 1014, where a garnishee, in an action against it, relied on a misnomer in the name of the principal defendant in the garnishee summons, but where the evidence showed it was not misled by the misnomer, a judgment against the garnishee was sustained. Other cases to the same effect might be cited. The nisi prius case of Paul v. Johnson, 9 Phila. 32, is cited in several of the textbooks as an authority contrary to German Nat. Bank v. National State Bank of Boulder, supra, and Terry v. Sisson, supra, but an examination of that case shows that the sole contention of the garnishee was “that they were, by the misnomer of the defendant, relieved from responsibility for having paid the debt after the service of the attachment,” and moreover, the conduct of the garnishee in drawing a check to the order of their cashier, and having him indorse the same to the order of their creditor, the principal defendant, was clear evidence that the garnishees were not acting in good faith and were not misled by the misnomer in the writ.

“A writ or summons must state correctly the Christian, middle name, and surname of the principal defendant, and where the writ fails in this respect the garnishee is totally unaffected by the service of the writ upon him, and cannot be charged if he subsequently pays the debt or delivers the property to the principal defendant, without actual knowledge of the identity of the principal defendant and the party named in the writ.” (20 Cyc. 1046.) After a careful consideration of many of the authorities bearing on the subject, we have reached the conclusion that the following is a correct statement of the law applicable to the present contention: A writ or summons in garnishment must contain an accurate description as to the name of the principal defendant or person to whom the garnishee is indebted, but “the garnishee becomes liable to hold the property subject to the process where he has actual knowledge of the identity of the principal defendant, though the latter’s name is not correctly given, or has reason to suppose the proceedings are intended to be against his creditor.” (28 C. J. 220, 221.)

The plaintiff contends that “the names ‘Joe Hantman’ and ‘Joe Handman’ are idem sonans,” and that therefore the judgment against the garnishee should be sustained, and in support of this contention it cites six cases, none of which is a garnishment proceeding or an action akin to it. If the rule contended for by the plaintiff were the law, it would be dangerous for an institution like the present garnishee to do business. To illustrate: In Kriste v. International Sav. & Exch. Bank, 17 Cal. App. 301, 119 Pac. 666 (cited by the plaintiff), it was held that the surnames. “Christe” and “Prkachin” as defendants against whom judgment was entered in a justice court are idem sonans with the surnames “Kriste” and “Perkacin” in an action in which the justice’s judgment is pleaded as a defense. It seems very plain to us that such a ruling would be a harsh doctrine to apply in garnishee proceedings, especially in a case where the garnishee is an institution like a bank. In our opinion it may be stated as a correct rule of law' that the doctrine of idem sonans cannot be invoked in a case where a garnishee, acting honestly and without knowledge of the identity of the principal defendant, and having no reason to suppose that the garnishee proceedings are intended to be against his creditor, has been misled by the variant spelling. The circumstance of the similarity in the sound of the names may be considered,. together with all the .other facts in the case, in determining whether the plaintiff has made out a case against the garnishee, but the mere fact that the two names are similar in sound, of itself alone, is not sufficient to make out a prima facie case against a garnishee in a proceeding like the present one.

In the instant case it is not disputed that the writ did not designate with accuracy and clearness the person to whom the garnishee was indebted, and the plaintiff had the burden of proving that the garnishee had actual knowledge of the identity of the principal defendant, or had reason to suppose that the garnishee proceedings were intended to be against its creditor. In our judgment, plaintiff had failed in this regard. The burden was upon the beneficial plaintiff to show that the garnishee acted in bad faith (Wilhelmi v. Haffner, 52 Ill. 222; Hennessey Bros. Co. v. St. Mary’s Academy, 171 Ill. App. 470, 472), and there is not a scintilla of evidence in the case tending to show that the defendant bank so acted, nor is there any proof that the garnishee had actual knowledge of the identity of the principal defendant, nor are there sufficient facts and circumstances to warrant a finding that the defendant bank had reason to suppose that the garnishee proceedings were intended to be against Joe Handman, the subcontractor. The proof does not show that Joe Handman, or Joe Hantman, was a depositor with the bank or had any account with it, or that the bank was actually acquainted with an individual bearing either name. The bank, in the transactions, was dealing directly with a client and depositor, Roitman, and only incidentally with Joe Handman. It was not until November 3, 1926, when the plaintiff filed the written interrogatories that the alias name, Joe Handman, first appeared, and at that time the bank had already made the payments in question. There is nothing in the evidence to show that the plaintiff, prior to the time of the payments, made any effort to bring home to the knowledge of the bank officials the fact that she claimed that Joe Hand-man, subcontractor, was the one sought to be reached by the process.- “Where a person opens a bank account under a fictitious name, and the process is sued out in the real name, the identity should be established to the officers of the bank when it is sought to reach the fund.” (German Nat. Bank v. National State Bank of Boulder, supra, 39 Pac. 71, 72.) In such a case an accurate description of the individual whose funds are sought should run with the writ. (Ibid. 72.) These principles of law apply to the instant case.

As to the contention of the defendant that under the pleadings in this case the burden was upon the plaintiff to prove that Joe Hantman, against whom the original judgment was obtained, and Joe Handman, subcontractor, to whom the bank paid the amounts in question, were one and the same person, and that the plaintiff failed in that regard, we would say that after a thorough examination of the record we have reached the conclusion that this contention is a meritorious one. There is no evidence in the case that tends to prove that Joe Hantman, the principal defendant in the instant proceeding, and Joe Handman, the person to whom the bank paid the amounts in question, weré one and the same person, and under the pleadings the burden was upon the beneficial plaintiff to prove such fact by proper evidence. There is no presumption of liability upon the part of the garnishee, and it must be made affirmatively to appear. The plaintiff answers the instant contention as follows: “It (the defendant bank) now seeks to .disclaim responsibility by alleging that J oe Handman and J oe Hantman are not one and the same person. But this' is no defense. The names Joe Handman and Joe Hantman are idem sonans.” This argument has no weight. The mere fact that the names Joe Handman and Joe Hantman are idem sonans does not prove that Joe Handman and Joe Hantman are one and the same person. The plaintiff, therefore, failed to make out a prima facie case against the garnishee defendant.

We do not deem it necessary to pass upon the other contention of the defendant bank.

For the reasons stated the judgment of the municipal court of Chicago is reversed.

Reversed.

Barnes, P. J., and Gridley, J., concur.


author: Mr. Presiding Justice Holdom

text:
    Des Plaines Lumber & Coal Company, Appellee, v. Chicago, Burlington & Quincy Railroad Company, Appellant.
    Gen. No. 32,299.

      Opinion filed June 20, 1928.
    Rehearing denied July 5, 1928.
    J. A. Connell and Sidney F. Blanc, for appellant; Kenneth F. Burgess and J. C. James, of counsel.
    Charles V. Falkenberg, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an action brought by the plaintiff shipper against the defendant carrier to recover the sum of $104.97, with interest, being, as plaintiff claims, a freight charge on a shipment of lumber in excess of the lawful rate charged by the defendant carrier, and paid by the shipper who at the time of such payment did not know that the charge was excessive.

At the threshold of this review we are confronted with a jurisdictional question, which will, as it must, be decided in favor of the defendant carrier who raises the question. If the municipal court was, as we hold, without jurisdiction of the cause of action, then all the other questions raised and argued become immaterial for judicial construction or opinion.

The shipment in question, being intrastate, the rate was the province of the Illinois Commerce Commission to fix.

Defendant carrier raises this jurisdictional question by assigning and arguing as error that “The Municipal Court was without jurisdiction because controverted questions of fact had not been passed upon by the Illinois Commerce Commission.” The plaintiff shipper in a measure endeavors to excuse its conduct in commencing its action in the municipal court by the statement that the statute of limitations for relief by the Illinois Commerce Commission is three years, and had run prior to commencing this action, so that at that time, the Illinois Commerce Commission was without jurisdiction and impotent to grant any relief. Consequently the plaintiff argues the 5-year limitation statute of this State applies to a common-law action to recover the excess over the legal rate charged by the carrier, and therefore justifies the shipper’s resort to the municipal court. However, we are not inclined to agree with the argument that because plaintiff delayed action until after the limitation statute debarred plaintiff from seeking redress in the forum of the Illinois Commerce Commission the municipal court could take jurisdiction of the action.

There is no material difference between the provisions of the Interstate Commerce Act and the Illinois Public Utilities Act. Section 9 of the Interstate Commerce Act (section 7894, Barnes Federal Code 1919) provides that any one damaged by a violation of the act may either file complaint before the commission or bring suit in court, and having adopted one remedy cannot pursue the other. By section 13 the commission is empowered to hear and determine complaints arising from violations of the act, and section 16, paragraphs 1 and 2 (section 7905, Barnes Federal Code) provides for an enforcement of an order for damages or reparation by suit in the United States District Court upon such order. Section 72 of the Public Utilities Act, Cahill’s St. 1927, ch. 1lla, ¶ 91, authorizes the commission upon complaint filed to order the public utility to make reparation of excessive freight charges, and provides for the enforcement of the order by an action at law upon such order, being virtually the same as under section 13 of the Interstate Commerce Act. (Jefferson Deposit Co. v. Central Illinois Light Co. of Peoria, 309 Ill. 262.) Section 73 of the Public Utilities Act, supra, gives to the party damaged the right to bring suit for damages for a violation of the act.

In Terminal R. Ass’n of St. Louis v. Public Utilities Commission, 304 Ill. 312, it is stated: “The similarity between the Interstate Commerce act and our Public Utilities act makes the decisions of the Supreme Court of the United States persuasive as to the correct rule to be adopted in this State. ’ ’ Heeding this- statement we are persuaded to follow the Federal decisions in our solution in the instant case of the jurisdictional question raised and argued.

The making of railroad tariffs involves many technical questions which call for solution by a practical man, expert in all the varied conditions which of necessity enter into the question of correctly fixing tariff rates. It is self evident that the average judge has not such expert knowledge, so that in the interest of uniformity the question of fact entering into the fixing of tariff rates should be passed upon by the commerce commission, not by the courts.

In Great Northern Ry. Co. v. Merchants Elevator Co., 259 U. S. 285, the court said:

“Where the document to be construed is a tariff of an interstate carrier, and before it can be construed it is necessary to determine upon evidence the peculiar

meaning of words or the existence of incidents alleged to be attached by usage to the transaction, the preliminary determination must be made by the Commission; and not until this determination has been made can a court take jurisdiction of the controversy. If this were not so, that uniformity which it is the purpose of the Commerce Act to secure could not be attained.”

It therefore follows under this dicta that the State commission was the forum plaintiff should have first sought. Furthermore, it is no excuse for not having so done-that plaintiff was barred from so doing by the statute of limitations closing the door when it appealed to the municipal court.

In Texas & P. Ry. Co. v. American Tie & Timber Co., 234 U. S. 138, the court said: “* * * it is equally clear that the controversy as to whether the lumber tariff included cross-ties was one primarily to be determined by the Commission in the exercise of its power concerning tariffs and the authority to regulate conferred upon it by the statute. Indeed, we think it is indisputable that that subject is directly controlled by the authorities which establish that, for the preservation of the uniformity which it was the purpose of the act to regulate commerce to secure, the courts may not, as an original question, exert authority over subjects which primarily come within the jurisdiction of the Commission.”

It follows in the instant case therefore that before the court could take jurisdiction, the commission must first fix the tariff so that the court might therefrom be able to judge whether or not there was an excess charge. Without such fixing of the tariff the courts have no jurisdiction.

As to the question of what was a through rate there was a conflict of evidence. Such conflict makes it necessary to determine as to what was a through rate within the meaning of the tariffs invoked and whether usage and custom fixed a through rate as contended. Until this question was fixed by the commission the courts were without jurisdiction to determine the rate. It appears from the evidence that the questions here involved were at the instance of third parties at the time plaintiff started its suit pending before both the Interstate and Illinois Commerce Commission and undetermined.

In Northern Pacific Ry. Co. v. Solum, 247 U. S. 477, the court in its opinion stated :

“The railway contends that, since the administrative question upon which its liability depends involves the reasonableness of a practice in interstate commerco and the traffic actually moved in interstate commerce, the court had no jurisdiction to adjudicate the controversy until that administrative question had been determined by the Interstate Commerce Commission. The shipper, on the other hand, urges that the rule which requires such preliminary determination of administrative questions by the Commission applies only to those cases where the question involved is whether a particular rate is unreasonable or whether a particular practice is discriminatory. But the rule is not so limited. It applies, likewise, to any practice of the carrier which gives rise to the application of a rate. Texas & P. R. Co. v. American Tie & Timber Co., 234 U. S. 138, 147, 59 L. ed. 1255, 1258, 34 Sup. Ct. Rep. 885; Pennsylvania R. Co. v. Puritan Coal Min. Co., 237 U. S. 121, 131, 59 L. ed. 867, 873, 35 Sup. Ct. Rep. 484; Pennsylvania R. Co. v. Clark Bros. Coal Min. Co., 238 U. S. 456, 469, 59 L. ed. 1406, 1412, 35 Sup. Ct. Rep. 896. The Interstate Commerce Commission has frequently entertained proceedings for refunds for misrouting under such circumstances. Indeed, long before these suits were filed, proceedings had been begun before the Interstate Commerce Commission against this and other railroad companies to secure the refunds of amounts paid for shipment over the interstate routes between Minnesota points in excess of that which would have been payable if shipment had been made over the intrastate routes. Holmes H. Co. v. Great Northern B. Co., 37 Inters. Com. Rep. 627, 630, 645, 649. And before the judgments were entered by'the Supreme Court of Minnesota in these cases, the Interstate Commerce Commission had determined that, under the circumstances, ‘the carrier was not required by law to change its methods of operation and abandon the use of its more favorable interstate line;’ and had refused to grant refunds in respect to the shipment of other com-modifies, under circumstances precisely like those presented.”

It would seem that this pronouncement of the law is strikingly applicable to the instant case and strongly emphasized the necessity of the rule that controverted questions of fact must be submitted to the commission in the first instance so that the courts may be guided by the commission’s findings of fact. Such findings are a sine qua non to the court’s jurisdiction and may not be dispensed with, for without such findings by the commission, the courts are without jurisdiction.

In Commerce Commission v. Cleveland, C., C. & St. L. Ry. Co., 309 Ill. 165, the court laid it down as a rule of procedure that:

“It is the duty of courts to weigh and consider the evidence, and if it is found that the order of the commission is without substantial foundation in the evidence it should be set aside. On the other hand, it is not intended that the courts should assume the duties of the commission and try new matters within its jurisdiction, and if from any reasonable view of the evidence the commission’s order rests on a reasonable and substantial basis and does not infringe any of the constitutional rights of the parties it should be sustained.”

The Illinois Public Utilities Act provides that an appeal will lie to the courts from the orders and rulings of the commerce commission. Therefore by analogy it can be consistently argued that it was the intention of the legislature that the commission should first fix rates by an appropriate tariff ruling before the courts would acquire jurisdiction of any tariff dispute.

For the foregoing reasons the judgment of the municipal court is reversed with directions to that court to dismiss the suit at plaintiff’s costs.

Judgment reversed with directions.

Wilson and Taylor, JJ., concur.


text:
    Geneva Organ Company, Appellee, v. Ambassador Theatres Corporation and Joseph Wassell, Appellants.
    Gen. No. 32,386.

      Opinion filed June 20, 1928.
    Rehearing denied July 5, 1928.
    Kirkland, Fleming, Green & Martin, for appellants ; Dwight P. Green, J. B. Martineau and Allen W. Cook, of counsel,
    Charles P. Molthrop and J. Arthur Johnson, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This appeal is prosecuted at the instance of defendants from a judgment against them on the verdict of a jury in the sum of $16,306.80.

Defendants assign thirty-eight alleged errors and argue but five. Under well-settled rules of procedure in this court we shall confine our decision within the five assignments of error argued for reversal, and ignore the remaining thirty-three not argued.

Defendants in their main brief say:

“On this appeal we rely upon the following specific errors committed by the trial court:

“(1) The improper and erroneous instructions to the jury that the use of the organ by the defendant corporation after its rejection by defendant corporation constituted a waiver, as a matter of law, of the rejection of such organ.

“(2) The exclusion of proper evidence over defendants’ objection.

“ (3) The admission of improper evidence over defendants’ objection.

“(4) The refusal to give proper instructions offered by defendants.

“(5) The refusal to direct a verdict for defendants.”

The cause of action is based upon a promissory note, which is as follows:

“Chicago, Jany. 15, 1925.

$14,400.00

“On or before 6 months after date we promise to pay to the order of Geneva Organ Company Fourteen Thousand Four Hundred Dollars payable at 5823 W. Division St.

“Value received with interest at 6% per annum.

M. & H. Theatres Corp.

W. P. McCarthy, President, Joseph Wassell, Treas.”

The consideration of the note was one pipe organ, furnished for and installed in the Ambassador Theatre in Chicago. When the note became due it was not paid and the payment of the note was at the request of defendants extended to November 15, 1925, on condition that the defendant Joseph Wassell joined in such extension. The extension was indorsed on the back of the note in these words: “Payment extended to November 15, 1925. Geneva Organ Co., Walter Hogans, Treas., Joseph Wassell.”

Under defendants’ first alleged assignment of error it cites Seeberg Piano Co. v. Lindner, 221 Ill. App. 94, in which the opinion was written by the writer of this opinion, and it is contended that that opinion is in its essence controlling of the instant case. A careful perusal of that opinion quite affirmatively demonstrates that in essential particulars, as applied to the case at bar, it is very different. In the Seeberg Piano Co. case, supra, the defendants rejected the organ, tendered it back to the piano company, who refused to take it, and thereupon the organ was put in storage for plaintiff’s account, sending the piano company the warehouse receipt therefor. In that opinion this court said:

“There was an abundance of evidence from which the jury might properly find that the style ‘V’ organ which defendants bought of plaintiff for their moving picture theatre was wholly unsatisfactory for the purpose for which it was purchased and entirely worthless to defendants in their moving picture business in which it was to be used, and that plaintiff knew the purpose for which the organ was to be used and, so knowing, installed it in defendants’ Rosewood Theatre. ’ ’

Many defects in the organ were pointed out in the testimony, among which were the sticking of the keys, the failure of other keys to respond to the touch of the organist, the failure of notes to stop when the fingers were removed from the keys, and that discords and unharmonious sounds resulted from such defects when the organ was in action. In the Piano Co. case plaintiff was given every opportunity to remedy the defects found in the organ and reported to it by defendants, but failed to do so. The piano company urged for reversal “that defendants were obligated when they rescinded the contract to restore the status quo and put plaintiff in as good a position as it was in before the sale. We think this primary obligation was fully met by the return of the organ; that such restitution of the organ to plaintiff was all that could possibly be done under the circumstances and was a sufficient compliance with the law which made it obligatory upon defendants to put plaintiff in as good a condition as it was before the sale.”

While it is true that defendants made many complaints that the organ was not in good condition in many respects, and while defendants offered to return the organ, they never did so; it remained in the theatre and was in constant use until the time of the trial. If defendants had desired to effectually bring themselves within the law laid down in the Piano Co. case, supra, on plaintiff’s refusal to take the organ out of the theatre, defendants should, as in the Piano Co. case, supra, have either physically returned the organ to plaintiff or stored it in some warehouse in its name and sent the warehouse receipt to the plaintiff. This they made no attempt to do. In no way did they attempt to restore the status quo; on the contrary defendants retained the organ and used it, and for aught that appears to the contrary, they are still doing so. Furthermore at the request of defendants plaintiff gave a waiver of lien which it had under the law and accepted the note in suit in full payment. Thereafter defendant theatre company inventoried the organ as an asset and secured blue sky permits to sell stock in which the organ was stated to be an asset and inventoried it for that purpose. In September, 1926, the theatre company entered the money owing on the organ as a liability to the plaintiff organ company and so continued to carry it as a liability to the time of the trial. Furthermore in the general blanket trust deed given upon the theatre company’s property securing a bond issue in the sum of a quarter of a million dollars, the organ was specifically conveyed as a part of the mortgage- security, and after the installation of the organ the theatre company used it continuously for more than a year and a half until the trial of the case in the court below.

It further appears that there was a demonstration of the capacity of the organ, at which defendant Was-sell was present with others of the theatre company, and that the test there made, it is in evidence, was satisfactory to those who heard it, but that Was sell and others of the theatre company after the playing was started did not remain to hear the organ tested, but went away.

Under the reasoning in the case supra defendants’ actions were a mere pretense to rescind the contract; they never did any act which, under the law, was necessary to restore the status quo. The actions of defendants regarding the possession and use of the organ above recited unqualifiedly indicated that the defendant theatre company affirmed the contract, and that thereafter they held themselves out to be the owners of the organ. These material facts are virtually undisputed. The defendants cannot now be heard, while in possession of the organ and operating it in the business of the theatre, to have any right to claim that they rescinded the contract, for every action above recited was in law an affirmance of the contract of purchase and their ownership of the organ.

We therefore hold that while by words the theatre company attempted to rescind the contract, by their actions the contract stands affirmed.

It has been demonstrated by the constant use of the organ that it is suitable for the purpose for which i the defendant theatre company bought it, and it is idle in view of these facts so well established to claim dehors them that the contract was rescinded. The undisputed actions of the defendant theatre company in inventorying the organ as an asset, in carrying the account due therefor to the credit of the plaintiff, pledging the organ in its quarter million dollar .trust deed as property owned by it, and its continued use of the organ for the purpose for which it was bought effectually estops it from making any successful claim to the contrary. It was the fact that the attempt to rescind the contract was abortive, and the rulings of the court on the evidence were without error.

The defenses of want of consideration and failure of consideration are untenable in the light of the proofs. The consideration moving to the theatre company was the organ sold to it by plaintiff, the title to which was and still is vested in it, and as to the defendant Wassell, the extension for four months of the time of payment of the note, given as the purchase price of the organ, is sufficient consideration moving to him for signing his name upon the back of the note.

Defendants urge for reversal that plaintiff’s instruction number fourteen was erroneous. This instruction reads:

“The court instructs the jury that even though the defendant corporation within a reasonable time after the installation of said organ determined to and did, by word of mouth or otherwise, reject or attempt to reject the said organ, it could not under the law retain possession of said organ and use it for its own profit in its business and at the same time insist upon the said rejection, if any rejection or attempted rejection is shown in this case. Under the law the use of an instrument subsequent to the alleged rejection or attempted rejection thereof, makes the said rejection thereof unavailing.”

This instruction stated a correct principle applicable to the facts in evidence. The continued possession and operation of the organ by the defendant theatre company was inconsistent with its attempted effort to rescind the contract in the manner heretofore stated in this opinion. By its words it attempted to rescind the contract, but by its affirmative action, continued to the time of the trial, it effectively affirmed the contract.

It is again objected that the court erred in the admission of certain evidence on the part of plaintiff against the objection of defendants. This testimony upon examination relates to evidence tending to prove that the organ was constructed in accordance with the contract and the specifications in the contract. We think such evidence was pertinent to the issues and did not injuriously affect the merits of the defense.

The witness Stevens was asked this question: “Any talk about the organ?” He answered: “Nothing derogatory that I heard of.” It was objected that the answer was not responsive, and the court held that the answer might stand. The objection was well taken, but the whole case considered we would not be warranted in reversing the case for this slight erroneous ruling.

Defendants argue that the court refused to give proper instructions offered by the defendants. These instructions were mainly grounded upon the erroneous contention that the contract for the sale of the organ had been rescinded by the defendant theatre company, and specifically argued that defendants’ instructions numbers 1, 3, 5, 6, 7, 8 and 9 were erroneously refused. We have read these instructions carefully and in view of the evidence regarding the unavailing attempt to rescind the contract, we hold that they were properly refused. As we have before held, the buyer, the defendant theatre company, did not rescind the sale "or elect to do so, so as to make the same effective under legal principles governing the rescission of contracts.

The court did not,err in denying defendants’ motion to instruct the jury to find a verdict for defendants ; neither did it err in refusing to instruct a verdict in favor of the defendant Joseph Wassell.

The judgment against the defendants jointly was proper in view of the facts in evidence. Joseph Was-sell, a stranger to the note, in placing his name on the back without any designation or limitation of liability, under the law was presumed to be a guarantor. However, before the passage of the Negotiable Instrument Act of 1907 that presumption could have been rebutted, but as held in Tucker v. Mueller, 287 Ill. 551, the Negotiable Instrument Act brought many changes.

In Anshen Co. v. Iglowitz, 202 Ill. App. 230, where the question arises as to whether such party was guarantor or indorser, this court said:

“By section 81, ch. 98 supra (J. & A. ¶ 7702), defendant is an indorser of the note in suit. This section reads: ‘A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an endorser, unless he clearly indicated, by appropriate words, his intention to be bound in some other capacity. ’ ’ ’

In Mexican Asphalt Paving Co. v. Love, 73 Ill. App. 250, the court said:

“There is no evidence tending to prove that Sayler’s liability is other than that of guarantor. By virtue of Section 2 of the Act of 1895, in respect to negotiable instruments, the maker and the guarantor of a promissory note may be sued jointly. 2 S. & Gr. Stat., Ch. 98, Sec. 8.”

And the rule in this State is the same today, that parties severally liable on a negotiable instrument may be joined in the same suit.

It is in evidence that Wassell was a bank president, passing upon negotiable instruments and the liability • of parties to such instruments in the discharge of his duties as president of a bank. He undoubtedly knew the effect of his signing his name on the back of the note in suit without any limitation as to his liability other than that which the law infers from that situation.

By the stipulation of counsel found in the record it was agreed that on November 16,1925, November 15th falling on Sunday, a demand was made on the theatre company for the payment of the note and that payment was refused, and that on the same date the bank addressed and mailed a personal letter to both defendants and the plaintiff stating that the note had been protested, that payment had been refused, and that the note had been dishonored. This fully meets with the requirements of the law in regard to notice of nonpayment and dishonor.

Plaintiff contends that not only should the judgment of the trial court he affirmed, but that it should be awarded statutory damages as the merits of the case are entirely with the plaintiff. "While there is much force in plaintiff’s urgency in this regard, still we do not feel that we are able to say that defendants prosecuted this appeal simply for delay, although while as a matter of fact they had no defense upon the merits, still they may have believed, though mistakable so, that there was sufficient error in the record to justify their calling upon this court for its review.

There is no error in the record or judgment in this appeal, and therefore the judgment of the superior court is affirmed.

Affirmed.

Wilson and Taylor, JJ., concur.


text:
    The People of the State of Illinois ex rel. John S. Rusch, Defendant in Error, v. Tina Worthman and Leona Coine, Plaintiffs in Error.
    Gen. No. 32,430.
    Opinion filed June 20, 1928.
    Louis Greenberg, Samuel E. Pincus and A. Paul Holleb, for plaintiffs in error.

      Ci-iables Center Case, Special State’s Attorney, for defendant in error; Grover C. Niemeyer, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The defendants in this writ of error are of the female sex. They served respectively as a judge and a clerk of election in the 12th precinct of the 20th ward of the city of Chicago, at an election held on November 2, 1926. For misbehavior as such judge and clerk each of the defendants was on a finding of guilty of contempt of court sentenced to imprisonment in the common jail of Cook county, Illinois, for the term of one year from the date of commitment unless sooner discharged in due course of law.

The sole and only reason assigned or argued why the judgments should be reversed and defendants discharged from further imprisonment is the fact that they each are of the female sex. Inferentially were they of the male sex the judgments would be legally unassailable.

Counsel for defendants contend that under the statutes as they then and now exist women were not eligible for either judges or clerks of election, and consequently the county court has no jurisdiction to punish them for their misbehavior. In support of their contention they cite People v. Barnett, 319 Ill. 403. The Barnett case involved the right of women to serve as jurors, in which the court held that the legislative intent that controls in the construction of a statute, has reference to the legislature which passed the given act. Applying such rules of construction it is evident that when the legislature enacted the law in question in the Barnett case, which provided for the appointment of jury commissioners in counties having more than 250,000 inhabitants and imposing upon them the duty of making a jury list, using the words “shall prepare a list of all electors between the ages of twenty-one and sixty years, possessing the necessary legal qualifications for jury duty, to be known as the jury list,” the legislature intended the use of the words “elector” and “electors” as the same were then defined by the constitution and laws of the State, and stated “At that time the legislature did not intend that the name of any woman should be placed on the jury list, and must be held to have intended that the list should be composed of male persons only. In interpreting a statute the question is what the words used therein meant to those using them. * * * The word ‘electors,’ in the statute here in question, meant male persons, only, to the legislators who used it. We must therefore hold 'that the word ‘electors’ as used in the statute, means male persons, only, and that the petitioner was not entitled to have her name replaced upon the jury list of Cook county.”

It is contended that such construction of the Jury Commissioner Act is equally applicable and binding in the construction of that portion of the Election Law, Cahill’s St. ch. 78, If 26 et seq. which provided for the appointment of judges and clerks of election, it being quite true that the legislators did not, when they passed the act, haxm in mind the appointment of other than males as judges and clerks of election.

Counsel for the People parry this contention xvith the argument that the defendants, if not de jure officers, were not such judge and clerk of election de jure, but that they were such officers de facto, and liable to be dealt xvith as for contempt by the county court. That the defendants voluntarily served as judge and clerk of election, respectively, is not denied. The question of their misbehavior in the discharge of their respective duties is not contested.

In Chicago v. Burke, 226 Ill. 191, it was held in effect that a person assuming an office is by that act estopped to "deny his right to the office when charged with misbehavior in office, and that such rule is controlling in both civil and criminal proceedings. In the Burke case the city brought suit to recover moneys paid into the city treasury as security for any shortage that might appear in Burke’s account as oil inspector of the city, and in passing on this proposition the court said:

“We do not know of any rule of law under which the complainant can reclaim the money deposited on the ground that the ordinance was void. Surely he cannot escape his liability to the city by impeaching his own title to the office and attempting to show that, in fact, there was no legal office of oil inspector.”

In People v. Newsome, 291 Ill. 11, defendant was convicted of a criminal offense while he was acting as a judge of election and the conviction was sought to be reversed because the voting district in which he acted had never been established or the polling place fixed as required by law. In denying this contention the court said:

“In People v. McCann, 247 Ill. 130, the court, in discussing a somewhat similar question, stated (p. 143): ‘But, as between himself and third parties, (the State in this case,) if the office * * * had a legal existence and plaintiff in error assumed the duties and discharged the powers and functions of the office he became a de facto officer, and cannot be permitted to deny his responsibility, while so acting, on the ground that he was not legally elected or appointed to said office. ’ That case is reported in 20 Am. Ann. Cas. 496, with a somewhat lengthy note at the close, in which the rule laid down in the opinion that a de facto officer is originally liable for his acts of malfeasance is supported by many decisions from other jurisdictions.”

In State v. Stone, 40 Iowa 547, the court said:

“If one holds himself out to be an officer, or acts as an officer de facto, he cannot be heard to object that lie is not an officer de jure, because his acting in the office estops him to deny his right to it, even when indicted for malfeasance.” (Citing Bishop on Criminal Law and Wharton on Criminal Law.)

There are many other authorities to a like effect. ‘ The defendants if not a judge and clerk respectively de jure, they were such officers de facto, because they acted in and discharged the duties of such officers.

We therefore hold that the defendants were es-topped from denying that they were not amenable to discipline by the county court for their misbehavior while acting as de facto judge and clerk of election.

In Graham v. People, 135 Ill. 442, the question of whether defendant was a de jure or de facto officer was neither raised nor considered.

We will take judicial notice of the fact that women are still serving as judges and clerks of election and that women were judges and clerks in the late judicial election held on June 4,1928. If there is any doubt as to the legality of women acting as judges and clerks of election and their being amenable to be dealt with for contempt by the county court for misbehavior in the discharge of their assumed duties, this case should be taken for further review to the Supreme Court so that that court of dernier resort may be given an opportunity to decide this most important question, because if women are not eligible to serve as judges and clerks of election, their appointments as such should be discontinued.

The judgments of the county court in this writ of error are affirmed.

Affirmed.

Wilson and Taylor, JJ., concur.