text:
    LeRoy State Bank, Appellee, v. J. Keenan’s Bank et al., Appellants.
    Gen. No. 8,185.

      Opinion filed May 2, 1928.
    Rehearing denied June 18, 1928.

      Herrick & Herrick, Adlai H. Rust and Stone & Taylor, for appellants.
    W. W. Whitmore and Sigmund Livingston, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

This case involves an appeal from a judgment for $75,120.91, entered in the circuit court of McLean county against the appellants, and A. J. Keenan.

The suit is based upon the terms and conditions embodied in a written contract of guaranty, which was drawn up and executed in reference to the failure of the J. Keenan Bank of LeRoy; and the contract relates to the assumption of the liabilities of the J. Keenan Bank by the appellee, the LeRoy State Bank, The guaranty contract referred to is as follows:

(1) “Memorandum of Agreement entered into this 25th day of January, A. D. 1924, by and between the LeRoy State Bank of LeRoy, Illinois, party of the first part, and J. Keenan’s Bank of LeRoy, Illinois, party of the second part, each of said parties being banking corporations, and A. Jay Keenan, L. C. Keenan, R. H. Roadman, D. P. Vandeventer, E. E. Sargent, C. J. Null, Hugo Pfitzenmeyer and Prank C. Barley, who now constitute the board of directors of the J. Keenan’s Bank, and who, in this instrument, contract as individuals, parties of the third part.
(2) “Witnesseth: That the party of the first part agrees to assume and does hereby assume all liabilities of the party of the second part except its liability to its stockholders, which said liability assumed is shown by schedules hereunto attached, numbered 1 to 6, inclusive, and made a part of this agreement. As a part of said liabilities assumed shall be included interest upon such items up until the 25th day of January, 1924, in so far as the same shall be paid bv the party of the first part.
(3) “Party of the second part agrees to transfer, and does hereby transfer, assign and set over all of the assets of the said J. Keenan’s Bank, said assets being shown by exhibits hereunto attached and numbered 1 to 17, inclusive, and does agree to transfer by a good and sufficient warranty deed executed by the president and cashier of said bank, under the authority of a resolution of the board of directors of the said second party, the real estate of said second party, as shown in exhibit attached, the title to the same to be free and clear from encumbrances as shown by an abstract brought down to date, except taxes for the year 1923, which said first party agrees to pay and deduct from the purchase price of said building as hereinafter set forth, and party wall agreements, if any.
(4) “Parties of the third part, in consideration of the covenants and agreements of the party of the first part and party of the second part, as above set forth, do hereby covenant for themselves that they will, and do hereby fully guarantee the said party of the first part that the said assets so taken by it from said party of the second part shall be sufficient to liquidate the liability assumed by the said party of the first part.
(5) “Parties of the third part further covenant with party of the first part that said guaranty shall extend for a period of three (3) years, or such part thereof as may be necessary in order to enable the said party of the first part to liquidate the assets turned over to them to the extent that may be required to fully satisfy the liability assumed by the said party of the first part.
(6) “It is further understood by all of the parties hereto that the said first party shall have the right from time to time during the period of said guaranty to renew any or all bills receivable specified in said schedule, and that such renewal shall not operate to release or in any way discharge the guaranty of the parties of the third part, and upon its part in this connection the party of the first part agrees that the parties of the third part shall have the right from time to time to make inquiry with reference to the bills receivable so turned over and as to progress made in their collection, and shall from time to time consult with the party of,the first part with reference to the best methods of retiring the same, and the party of the first part further agrees that it will use its best efforts to collect and retire said paper in the usual course of business, to the end that the parties of the third part may, as soon as possible, be relieved from the guaranty thereon.
(7) “With this end in view, it is further agreed that the said J. Keenan’s Bank shall nominate and appoint one representative to act upon their behalf in this connection, and that in event the result of the consultation between the parties shall be that they disagree as to the advisability of forcing collection upSn any bills receivable, that question shall be submitted to the Auditor of the State of Illinois, whose determination of the question shall be final.
(8) “It is further understood and agreed that the said party of the first part shall open upon the books of the Leitoy State Bank an account to be known as the 6J. Keenan’s Bank Account,’ wherein shall be "credited upon the one side the assets so turned over by said J. Keenan’s Bank to the said first party, and be charged upon the other side with the amount of liabilities assumed by the said party of the first part as hereinabove set forth, and that from time to time as said bills receivable, or any part thereof, are collected, together with the interest upon the same up until the 25th day of January, 1924, or shall be renewed to the satisfaction of the party of the first part, the sáme shall be credited to the account of the said J. Keenan’s Bank upon said account, and that in said account there shall be at once credited to the said J. Keenan’s Bank the building, furniture, fixtures and supplies at the fixed sum of forty thousand dollars ($40,000.00), less the amount of taxes assumed, as hereinabove specified.
(9) “It is further understood that whenever the sums collected from said assets, together with the fixed amount allowed for said building, as aforesaid, shall equal the liabilities assumed, that the guaranty of the parties of the third part shall be automatically discharged, and the party of the first part shall turn over to the said second party any remaining assets so scheduled, with the option upon the part of the party of the first part to retain any part thereof at the full face value or to retain any part upon an agreed valuation.
(10) “It is furtner agreed that at the expiration of the said three-year period of guaranty, if the assets turned over by the party of the second part to the party of the first part shall not have sooner liquidated the liability, as shown by the account above provided for, that the said parties of the third part will, upon demand, withdraw from said party of the first part, under the terms and conditions above provided, the remaining assets charged to the Keenan account and will forthwith pay in cash the sum of money necessary to liquidate the said liabilities assumed by the party of the first part.
(11) “It is further understood and agreed that in event it shall be necessary for the party of the first part, during the term of this guaranty, to expend any sums of money for the protection of any of the assets turned over by the party of the second part, that the sums of money so expended shall be charged against the account of the said party of the second part above provided for.
“This agreement is executed in duplicate the day and year first above written by the said parties of the first part and second part by their respective presidents and cashiers, and by the parties of the third part in person, the parties of the first and second parts having been heretofore duly authorized to execute the same by action of the board of directors of the respective banks.
LeRoy State Bank of LeRoy, Illinois, (Seal)
By W. F. Crumbaugh,
President.
J. Keenan,
Cashier.
J. Keenan’s Bank of LeRoy, Illinois, (Seal)
By A. Jay Keenan,
President.
L. C. Keenan,
Cashier.
A. J. Keenan, (Seal)
L. C. Keenan, (Seal)
Frank C. Barley, (Seal)
Hugo Pfitzenmeyer, (Seal)
E. E. Sargent, (Seal)
Chas. J. Null, (Seal)
R. H. Roadman, (Seal)
D. F. Vandeventer, (Seal) ”

The main ground urged for reversal of the judgment and in defense of the liability of the appellants is that they “are guarantors • only of the collectibility of the assets turned over; and that it was the duty of the appellee prior to the three-year period mentioned in the contract to exhaust all means of having said assets liquidated if it desired to make any claim against the appellants as guarantors.” To determine the merits of this contention, it is necessary to construe the guaranty contract; and especially those parts of it which are embodied in paragraphs 4, 5, 6, 9 and 10, which must be considered together. In paragraph 4 the appellants expressly stipulate in consideration of the covenants and agreements of the appellee bank and of the J. Keenan’s Bank, that they fully guarantee, that the assets of the J. Keenan’s Bank, taken over by the appellee bank “shall be sufficient to liquidate the liability assumed.” And it may be pointed out in this connection, concerning the meaning of the word “liquidate,” that this word must be considered as having been used in the ordinary and generally accepted meaning of the word when used in matters of business; and that using it in this sense it means to settle and pay off; to adjust and satisfy; and we conclude, therefore, that under paragraph 4 the appellants ’ guarantee is to the effect that the assets of the J. Keenan’s Bank, turned over to the appellee bank, in consideration of its assumption of the liabilities of the J. Keenan’s Bank, would be sufficient to pay off and satisfy the liability which the appellee assumed. It is provided by paragraph 5, that the guarantee embodied in paragraph 4, “shall extend for a period of three (3) years, or such part thereof as may be necessary in order to enable the appellee bank to liquidate the assets turned over to them to the extent that may be required to fully satisfy the liability assumed by the appellee.” Paragraph 6 has reference to what the appellee bank shall have a right to do, and what shall be done by the appellee bank concerning the collection of the assets taken over; and it provides that the appellee bank shall have the right from time to time during the three-year period of guarantee, to renew any and all bills receivable, and that such renewal shall not operate to release or in any way discharge the guaranty. It also provides that the guarantors shall have the right from time to time to make inquiry with reference to the bills receivable turned over to the appellee bank, and as to the progress made in the collection thereof; and shall from time to time consult with the appellee bank, with reference to the best methods of retiring the same; and then the paragraph defines what the appellee bank agrees to do in reference to the collection and retirement of the bills receivable turned over to it, namely: “That it will use its best efforts to collect and retire said paper in the usual course of business.” Paragraph 9 provides that whenever the sums collected from the assets turned over to the appellee bank, meaning, of course, collected by the appellee bank, “in the usual course of its business” (together with the fixed amount of $40,000, less taxes assumed, for the bank building) shall equal the liabilities assumed, that the guaranty shall be automatically discharged, and the appellee bank sháll turn back to the J. Keenan’s Bank, the remaining assets; but an option is given the appellee bank to retain any part of the remaining assets at their face value or upon an agreed valuation. It is then stipulated in paragraph 10 that at the expiration of the three-year period or guaranty, if the assets turned over to the appellee bank “shall not have sooner liquidated the liability, as shown by the account provided for,” that then the guarantors will upon demand withdraw from the appellee bank under the terms and conditions provided, “the remaining assets charged to the Keenan account and will forthwith pay in cash the sum of money necessary to liquidate the said liabilities assuméd” by the appellee bank.

The foregoing provisions of the guaranty contract make it clear that the liability of the guarantors.was not one which depended upon the collectibility of the assets turned over to the appellee, but involved an ■absolute promise to pay upon demand of the appellee at the expiration of the three-year period of guaranty, the sum of money necessary to liquidate the remaining liabilities assumed by the appellee; and to take back the assets charged to the Keenan account, which remained uncollected in the usual course of business. This guaranty contract was therefore an original undertaking and absolute in its character and effect, and was not dependent on some condition precedent which would determine the liability of the guarantor, but the liability was definitely fixed in the terms of the contract. Illinois Surety Co. v. Munro, 289 Ill. 570; Stowell v. Raymond, 83 Ill. 120; Dickerson v. Derrickson, 39 Ill. 574; Sherrard State Bank v. Vernon, 243 Ill. App. 122; 28 Corpus Juris 895.

It is also contended by the appellants that it was legally necessary, to the right of the appellee bank to recover under the contract, that the appellee bank at the expiration of the three-year period make a tender to the appellants of the assets remaining unliquidated. Concerning this contention it may be pointed out that there is nothing in the contract with reference to the turning back of the remaining assets, except what appears in paragraph 10; and the provision in paragraph 10 requires that the action to. be taken concerning the remaining assets is to be taken by the appellants; that is to say, that upon a demand as was made by the appellee bank under the paragraph mentioned the appellants shall withdraw the remaining assets and pay in cash the sum of money necessary to liquidate the same. The obligation to withdraw the remaining assets does not depend on a tender by the appellee bank, and we conclude therefore that a tender was not necessary.

It is also contended that the appellee bank did not use due diligence in and about the collection, retirement and liquidation of the assets taken over. Concerning this contention, it is evident under paragraph 6 of the contract the appellee bank was obligated only to collect and retire the assets assumed, and to the exercise of its best efforts in the collection thereof in the due course of its business; and the appellee bank was given full power and discretion to renew any and all the commercial paper constituting such assets during the period of guaranty; and that a renewal instead of a collection of such paper should not operate as a release or discharge of the guaranty. There is no evidence in the record of any facts showing that the appellee did not.comply with the requirement of using-its best efforts in the collection of the assets in due course of its business in accordance with the terms of the contract.

It is also argued that the appellee’s right of recovery is based on the condition of the account which the contract provides should be kept by the appellee bank, and that the amount of the liability of the appellants, if any, must be fixed by the account mentioned. The account referred to and the agreement in regard to the account apears in paragraph 8 of the contract, as follows: “It is further understood and agreed that the said party of the first part shall open upon the books of the LeRoy State Bank an account to be known as the 6J. Keenan’s Bank Account,’ wherein shall be credited upon the one side the assets so turned over by said J. Keenan’s Bank to the said first party, and be charged upon the other side with the amount of liabilities assumed by the said party of the first part as hereinabove set forth, and that from time to time as said bills receivable, or any part thereof, are collected, together with the interest upon the same up until the 25th day of January, 1924, or shall be renewed to the satisfaction of the party of the first part, the same shall be credited to the account of the said J. Keenan’s Bank upon said account; and that in said account there shall be at once credited to said J. Keenan’s Bank the building, furniture, fixtures and supplies at the fixed sum of forty thousand dollars ($40,000.00), less the amount of taxes assumed, as hereinabove specified.” There is no contention that an account was not kept, but that such account was not kept in the particular way which the contract specifies. In reference to the keeping of an account attention must be called to the fact that the amount of liability of the appellants, if any, could not have been accurately arrived at, if the account had been kept in the particular way referred to in the contract, for it provides that on one side of the account there shall be credited the assets turned over to the appellee; upon the other side of the account should be charged the liabilities assumed by the appellee. Then there shall also be entered on the credit side, from time to time, the bills receivable (which were a part of the assets), as they were collected, with interest thereon up to and until January 25,1924; and there should also be credited the bills receivable which were renewed to the satisfaction of the appellee bank; that is to say, on the one side of this account there would be the charge of the amount of the liabilities assumed by the appellee bank, and as against those liabilities assumed, there would be entered the following credits: First, the amount of all the assets turned over by the Keenan Bank; then the amount of the bills receivable- which were collected and which were a part of these assets, together with the interest thereon to January 25, 1924; also the amount of the bills receivable which were not collected but renewed would be credited, as well as the $40,000 for the bank building, furniture, etc., which were a part of the assets taken over, should be specially credited. Under this arrangement of credits in the account to be kept as specified, there would be a doubling or tripling of credits against the liabilities assumed by the appellee bank; and it is difficult to perceive how an accurate understanding of the liability of the appellant could have been arrived at if the account had been kept in the particular way required. It is not contended, however, that a true and accurate account of the collections made by the appellee bank and of the pecuniary transactions and business dealings of the appellee bank with reference to the assets was not kept by the appellee bank; and the books containing the accounts of the transactions which were brought into court and used in evidence upon the trial are not accurate and true. But we deem it sufficient to say, concerning the matter, that the contract does not .provide that the right of recovery against the appellants, if any there be, shall be determined by the condition of the account of the ,J. Keenan’s Bank as kept in the manner provided for in the contract.

Another question raised by the appellants relates to the competency of the testimony of the expert accountants, who were called as witnesses for the appellee bank. Concerning this contention it may be said that where witnesses are familiar with the books, papers and assets of an estate, and are possessed of special knowledge from an examination of such books, papers and assets, they are competent witnesses as to such matters. People v. Hartenbower, 283 Ill. 591; Chicago & W. I. R. Co. v. Heidenreich, 254 Ill. 231; People v. Gerold, 265 Ill. 448; People v. Munday, 280 Ill. 32; Reinke v. Sanitary Dist. of Chicago, 260 Ill. 380; Smythe v. Evans, 209 Ill. 376.

In Smythe V. Evans, above cited, the court said: “These books are competent evidence. It is also proper, for the convenience of the jury, to take the evidence of a bookkeeper, accountant or other person skilled in work of that character, to show the footing of a column of figures or to show the result of any calculation from a complicated set of figures which cannot be readily carried in mind by the jury, where the calculation is purely mathematical.”'

It is further contended that it was error to enter a judgment against the appellant L. C. Keenan without first defaulting him, because he did not join with the other appellants in the court below in the pleadings filed in defense of the action, that because of this fact there was no issue to try concerning him. It is sufficient to say, concerning this point, that appellant L. C. Keenan was represented by counsel in the case, and participated in the trial, which trial was on the merits. in the same way as the other appellants; and participated in the same way as if he had joined in the pleadings filed by his coappellants. The law is well settled that if parties proceed to a trial without a plea, or without having formally joined issues, this irregularity is waived and cured by the verdict. Brassle v. Usher, Breese 35; First Nat. Bank of El Paso v. Miller, 235 Ill. 135; Devine v. Chicago City Ry. Co., 237 Ill. 278; Hinchciffe v. Wenig Teaming Co., 274 Ill. 417; Farley v. Dean, 196 Ill. 389. In this connection attention should also be called to the fact that no objection was raised in the trial court to the irregularity referred to; and that the objection cannot properly be raised in a court of review for the first time. Devine v. Chicago City Ry. Co., supra.

Another contention of appellants is that the sum of $3,293.35, was received by the appellee bank as interest for the time extended for payment of the renewed bills receivable; and that this interest under the guaranty contract should be regarded as payment of part of the principal of the bills receivable renewed ; and that therefore appellants are entitled to credit for the amount of this interest on their indebtedness. In reference to this contention it may be said that the contract gives the appellee bank full and complete power and discretion and right to renew any and all bills receivable from time to time during the three-vear period of guaranty without prejudice to their right to recover under the guaranty contract, and that there is nothing in the contract under which the appellants are entitled to credit for such interest accruing for such renewals; but the only interest specified in the contract for which the appellants are entitled to receive credit is the interest on the bills receivable accruing “up until the 25th day of January, 1924.”

Complaint is also made about the instructions given by the court in reference to a credit of $621.32, which the court directed the appellants were entitled to out of the money which the appellee bank collected from W. T. Phillips. The evidence discloses, concerning this collection, that among the assets which the appellee bank took over, there was a claim against Phillips, who was engaged in farming, for $1,450. Phillips had been and was at the time of the turning over of the assets unable to pay this indebtedness; apparently-also he was unable to continue his farming operations without some additional financial aid; and he had no other way of paying his indebtedness except by continuing his farm operations. In this situation the appellee bank loaned him additional money in the regular course of business, which amounted in all to $1,378; and thereafter took a chattel mortgage on his personal property to secure the amount loaned him by the appellee bank and also the amount of his indebtedness to the Keenan Bank. Afterwards the appellee bank thought it necessary to foreclose the chattel mortgage, and the net amount realized from the foreclosure sale was $1211.80. There is nothing in the evidence to indicate that the appellee bank did not handle the whole matter in good faith, and for the best interest of all concerned, nor that it did not exercise good judgment. The court instructed the jury that the amount realized by the foreclosure should be divided pro rata between the Keenan indebtedness and the amount due the appellant bank for the additional loans made Phillips. By the pro rata division the appellants received the larger part of the amount realized in the foreclosure of the chattel mortgage, and the division made by the court appears to be fair and just to the appellants.

It is also urged by the appellants, for reversal of the judgment, that A. J. Keenan, who is a party defendant, but who was not served with process, is included in the judgment. It is pointed out that the trial court had no jurisdiction of this defendant at the time of the rendition of the judgment. The appellee bank insists that A. J. Keenan was represented on the trial of the case by counsel, and by the same counsel that represented the appellants; and it is asserted that the record shows that a demurrer to the declaration was filed in the case in behalf of all the defendants except Frank O. Barley ; and that a motion was made for a more specific bill of particulars on behalf of all the defendants except Frank C. Barley; and that the entry of appearance on the trial on the merits was for all the defendants; that all objections which were made to matters of evidence were expressly made on behalf of all the defendants; and a motion to strike out certain evidence adduced on the trial was made by counsel on behalf of all the defendants jointly and severally. A. J. Keenan, however, did not join the appellants in this appeal, and we have no jurisdiction on this appeal to determine questions concerning A. J. Keenan’s rights or liabilities in connection with the judgment rendered. And the appellants are not in position to assign error for him, inasmuch as the rendition of a judgment against Keenan for lack of jurisdiction would be an error committed against him alone. Schwarts v. Ritter, 186 Ill. 209; Press v. Woodley, 160 Ill. 433; City of Chicago v. Cameron, 120 Ill. 447; Gage v. Du Puy, 134 Ill. 132; Pierson v. Hendrix, 88 Ill. 34; Robinson v. Brown, 82 Ill. 279; Crawford v. Eastman, 150 Ill. App. 241, 242; Harrison v. Thackaberry, 154 Ill. App. 246, 249.

The record does not disclose any substantial error in the admission or exclusion of evidence on the trial, nor do we find any error in the giving or refusal of instructions. The instructions were given or refused in reference to the main issue in the case and in conformity with the holding of the trial court as to the nature and effect of the guaranty obligations of the appellants under their contract; and this holding is in harmony with the views expressed in the foregoing opinion. The jury were warranted by the evidence, under the instructions of the court, to find the amount of damages for which the appellants are liable to be $77,321.15. It was stipulated, howevej, by the parties, after the rendition of the verdict, that since the taking of the evidence in the case, the appellee bank had collected additional sums , from the assets remaining in its hands, which amounted to a sum total of $2,414.94; and that this sum should be credited on the amount of damages fixed by the verdict, which was done, and the judgment was therefore rendered for the reduced amount. It was also agreed that the application of the credit referred to should not in any manner prejudice the rights of either of the parties concerning the questions raised on appeal.

For the reasons hereinbefore set forth, the judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Shurtleff

license: Public Domain

text:
    Modern Woodmen of America v. James B. Parido, Appellee. Carl W. Ernest, Administrator of the Estate of Matilda Parido, Deceased, Appellant.
    Gen. No. 8,220.
    Opinion filed July 2, 1928.

      M. A. Brennan and W. W. Whitmore, for áppellant; Stella E. Whitmore, of counsel.
    Thomas S. Weldon, for appellee. •
   Mr. Justice Shurtleff

delivered the opinion of the court.

On September 29, 1927, the Modern Woodmen of America filed its bill of interpleader in the circuit court o'f McLean county against appellant and appellee, to require them to interplead for the purpose of legally determining which of them is entitled to the benefits payable under its benefit certificate issued to David Parido in his lifetime. David Parido was a member in good standing of the petitioning order and died, while such member, as a result of injuries received on August 10, 1927, when an interurban car struck the automobile in which said David Parido, his wife, Matilda Parido, and his mother, Martha Parido, were riding, and from the results of which accident all of the occupants of said car died. Proofs were submitted showing that at the time of the accident David Parido died instantly and that his wife, Matilda Parido, died about 30 minutes later while she was being carried to a hospital in an ambulance. Appellant Ernest is the duly appointed administrator of the estate of Matilda Parido, deceased, and claims the fund as the beneficiary named in said benefit certificate. Appellee James B. Parido is the father of said David Parido, deceased, who died leaving no children or mother him surviving, and appellee claims the fund under a clause in the certificate providing for the disposition of the fund in case the deceased and his said wife, Matilda Parido, died in a “common disaster.” David Parido, in his application for membership in the order, named his wife, Matilda Parido, as beneficiary and the certificate provided: “That in case of the death of David Parido while a member of the society in good standing his beneficiary, hereinafter named, shall be entitled to participate in the benefit fund of the society to the amount of $1,000 without interest, to be paid to said beneficiary, to wit, Matilda Parido, related to said member as wife.”

Section 51 of the by-laws of the order, under which appellee claims title to the fund, so far as pertinent to this case, provides as follows:

“If the death of a beneficiary of any member heretofore or hereafter adopted shall occur at the same time, or in a common disaster, or prior to the death of such member . . . then the amount to bé paid under the benefit certificate to said deceased or disqualified beneficiary, or beneficiaries, shall be payable to the surviving qualified beneficiary or beneficiaries, if any there be, share and share alike, or if no beneficiary survives him, then to the widow; if no widow, to his children, including his legally adopted children, and in case there are deceased child or children, the child or children of such shall take the share of such deceased parent; if no child, or child or children of a deceased child or children, to the mother; if no mother, to the father; if no father,” etc.

There were proofs presented and a substantial agreement of the parties as to all the facts in the case and a decree in the court below, awarding the fund to the father, based upon section 51 of the by-laws and upon the theory that David Parido and his wife, Matilda, regardless of the question of survivorship, each died in a ‘‘common disaster, ’’ and the record is brought to this court for review:

A considerable space is occupied in the briefs discussing the exact interpretation of the word “in” in by-law number 51, and also as to the mental wish or desire of the deceased certificate holder in case he knew that his wife would survive him but an exceedingly brief space of time. We receive little aid from any of these arguments. If the term “common disaster” is to receive a legal definition and be construed as a common “blow,” “infection” or “injury,” which may produce its results upon various persons and at various periods of time and become a medium of establishing titles to property by the collectiveness of the “blow,” “infection” or “injury,” then titles and rights are to be thrown into utter confusion and depend for periods upon contingent results. If the disposition of the funds provided for in said certificate is dependent upon appellant’s intestate dying from the result of injuries received in a “ common disaster ’ ’ with her husband, as those terms are used in common parlance and as contended by appellee in support of said decree, then it makes no difference whether appellant’s intestate survived her husband 30 minutes or 30 years, if she did in fact receive the injuries from which she died in such “common disaster” as the term is freely used, she could never become a beneficiary under the certificate in question. The rule may work harshly in individual cases, but the great beauty of the law is the universality of its operation, upon citizens and subjects alike. The terms in by-law No. 51, “If the death of a beneficiary of any member heretofore or hereafter adopted shall occur at the same time, or in a common disaster, or prior to the death of such member,” etc., have a well-defined legal meaning in the opinion of this court, and were so used by the petitioning order. The courts have construed the term “deaths ... in common disaster” to mean the same thing and be identical with “deaths at the same time.” (Middeke v. Balder, 198 Ill. 590, 594; Wall v. Pfanschmidt, 265 Ill. 180, 182; In re Wilbor, 20 R. I. 126, 51 L. R. A. 863, and note; McGowin v. Menken, 223 N. Y. 509, 119 N. E. 877, 5 A. L. R. 794; Fleming v. Grimes, 142. Miss. 522, 107 So. 420, 45 A. L. R. 618.) Based upon these technical terms, the courts construe a presumptive rule of evidence as to survivorship which is substantially of universal application in this country and England.

In a somewhat hasty examination we have found only two instances where the courts clothe the term, “common disaster,” with a legal meaning. We find it used in shipping, under the principle of general average as applied to a maritime common adventure (36 Cyc. 373), and as applied to “deaths.” “Where several persons perish in a common disaster, . . . there is no presumption as to survivorship, but it is a fact to be proved by the party asserting it, and this was the rule at common law” (17 Corpus Juris 1179), and so it was held in Middeke v. Balder, supra.

“When two or more persons lose their lives in a common disaster, by the civil law a number of presumptions of survivorship arise, based on age, sex and condition of health, but there is no presumption that they all died simultaneously. At common law there is no presumption of survivorship, and if survivorship is claimed it must be proved, and the one having the burden of proof of such survivorship must fail if he cannot prove it. While there is no such presumption, the practical result of this rule is that the parties are treated as having all died at the same instant of time, and that no one of those thus dying synchronously takes from any of the others dying in the common disaster, by reason of the other’s death. This rule was practically settled in England in 1855 in the leading case of Underwood v. Wing, 4 DeG., M. & G. 633, heard on appeal from the Master of the Rolls. (Underwood v. Wing, 19 Beav. 459.) All the previous cases and authorities were cited and the subject was thoroughly discussed. Underwood, his wife and three children all perished at sea on the voyage from London to Australia. The Lord Chancellor said: ‘The question in the present ease is, whether, the plaintiff (one Underwood) being the next of kin or representing the next of kin, Mr. Wing shows a title depriving her of that to which, in the absence of a valid will, she is entitled. That depends, first of all, on the terms of the will, and the will gives the property to Mr. Wing “in case my wife shall die in my lifetime.” Then comes the question, on whom does the burden of proof rest to show whether the wife did or did not die in the testator’s lifetime? I think, the principle once being admitted that the prima facie title is in the next of kin, that it must rest on the person who claims the property under a bequest giving it to him in that particular event. It is not for the next of kin to show that the wife did not die in her husband’s lifetime, but the person who claims under the disposition must show, not that probably it might be one way or the other, but that that state of circumstances did in fact occur which entitled him, according to the language of the will, to say that the wife did die in her husband’s lifetime.’ ”

In the many cases reviewed in Middeke v. Balder, supra, and in the note to In re Wilbor, supra (51 L. R. A. 863), one is led to the impression that in law a common disaster occurs only where different ones perish, and there is nó testimony of witnesses or circumstances to determine which survived the longer. The reason of the rule is stated in 17 Corpus Juris 1180, as follows: “It is not impossible for two persons to die at the same time, and when exposed to the same peril under like circumstances, it is not as a question of probability very unlikely to happen. At most the difference can only be a few brief seconds. The scene passes at once beyond the vision of human penetration, and it is as unbecoming as it is idle for judicial tribunals to speculate or guess whether during the momentary life struggle one or the other may not have ceased to gasp first, especially when the transmission of title to property depends upon it, and hence in the absence of other evidence the fact is assumed to be nnascertainable, and property rights are disposed of as if death occurred at the same time. This is done not because the fact is proved, or that there is any presumption to that effect, but because there is no evidence, and no presumption to the contrary.”

Thus we find an arbitrary rule laid down defining a legal common disaster where different persons perish in the same or common disaster and there are no proofs to determine which, if either, survived the other, the law determines that they perished at the same time. “Dying at the same time” or “dying in a common disaster,” are merely, in law, different statements of the same situation or result, and were so used in the language of by-law No. 51.

There are other “common disasters” not in a legal sense, however, like the case at bar. “The earliest case in which the question of survivorship between persons dying at the same time arose was in 1596, and there was evidence by which the fact could be and was determined. Broughton v. Randall, 1 Cro. Eliz. 502, Noy, 64. In this case a father and his son were both hanged from the same cart. They were joint tenants in certain real estate, and the widow of one of them claimed and established her dower right upon the ground that her husband lived longest. The two reports differ as to whether it was the son who lived longest and his widow who succeeded, or whether the father survived to the benefit of his widow; but both agree on the determining piece of evidence, namely, that one victim was noticed to move his feet or shake his legs after the other’s muscles were stilled in death. ’ ’ (In re Wilbor, 51 L. R. A. 865.) In such cases and in the case at bar, survivorship is established by proofs. Section No. 51 provides for cases where persons die at the same time. This need not occur in a “common disaster,” but the result would have been the same. The section also provides for deaths occurring in a “common disaster. ’ ’ By this is intended the legal ‘ common disaster” where there are no witnesses or proofs to establish a survivorship, and the section provides for a death of the beneficiary prior to the death of the member. It is plain to be understood that the petitioner in using the term “common disaster” meant and intended to provide for a case where both parties perished and there were no proofs to establish a survivorship and did not intend to change his beneficiary merely because each of them received an injury finally resulting in death at the same time. Appellant’s intestate, having survived her husband, under the terms of said certificate her rights in said certificate attached and became effective immediately upon the member’s death. (Freund v. Freund, 218 Ill. 189, 205; Columbian Circle v. Auslander, 302 Ill. 603, 606; Meyers v. Modern Woodmen of America, 205 Ill. App. 45, 46), and appellant is entitled to the proceeds of said certificate.

The decree of the circuit court of McLean county is reversed and said cause remanded to the circuit court of McLean county with directions to enter a decree providing that said funds shall be paid to appellant as administrator, who shall recover his costs.

Reversed a/nd remanded with directions.


author: Mr. Presiding Justice Niehaus

text:
    Joseph Dvorak, Appellee, v. Hartford Fire Insurance Company, Appellant.
    Gen. No. 8,222.
    Opinion filed October 15, 1928.
    Rehearing denied January 4, 1929.
    Hicks & Folonie, Glenn Ratcliff and M. P. Rice, for appellant.
    Burnett M. Chiperfield, Claude E. Chiperfield and Robert B. Chiperfield, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

This appeal is prosecuted by the appellant, Hartford Insurance Company, from a judgment for $1,440 recovered against it in the circuit court of Fulton county by Joseph Dvorak, the appellee, for a loss by fire suffered by him, which was covered by an insurance policy issued by the appellant. The insurance policy in question was taken out by the appellee to cover a gasoline launch, and the hull of the launch, its motors, machinery, etc. The launch was totally destroyed by fire on the night of July 6, 1925.

The declaration filed sets out the policy of insurance upon which the appellee bases his right of recovery; and it avers performance upon the part of the appellee of “all the things in said policy .contained on his part to be kept and performed;” also “that forthwith after the happening of the said loss and damage, to-wit; on the second day of July, A. D. 1925, he then and there gave to the defendant notice in writing of said loss and damage and within sixty (60) days after the incurring of the loss and damage aforesaid rendered to the defendant a proof of said loss signed and sworn to by him, stating the knowledge and belief of the insured as to the time and origin of the fire, the interest of the insured and all others in said property, the cash value of said property, the amounc of loss or damage thereto or encumbrances thereon, all other contracts of insurance whether valid or not thereon, all changes in the title, use, occupation, location, possession or exposures of said property since the issuance of said policy, and in addition thereto, did furnish the said defendant with all other and further information relative to the said loss and damage required in and by the terms and provisions of said policy.”

The appellant filed the general issue to the declaration, and six special pleas, alleging certain specific matters of defense. The first special plea alleges that the appellee did not within 60 days after the fire, render a sworn statement or proof of loss to the appellant company as required by the terms of the policy. In the second special plea it is averred that “the insured, did, to-wit: before loss conceal and misrepresent material facts and circumstances concerning the subject of said insurance, and did commit fraud and falsely swear touching matters relating to the subject of said insurance, to-wit: he did misrepresent and fraudulently state respecting the character, quality, and value of the property so insured and did so with intent to cheat and defraud the defendant, falsely stating the insured property to be better and of more value than it was in fact, and so did with fraudulent intent to cheat and defraud the defendant.”

In the first additional special plea, it is averred that : “And for a further plea in this behalf, the defendant, says that the plaintiff ought not to have his aforesaid action against it, the defendant, because it says that the said plaintiff, Joseph Dvorak, did knowingly and wilfully cause the setting of the fire which occasioned the damage and loss mentioned in the said declaration of the plaintiff, for the purpose of defrauding this defendant, and to collect the insurance upon the said policy.”

The appellee joined issue on the second special plea referred to, and by replications traversed all the other special pleas filed and tendered issues thereon, including the second and first additional special pleas.

A number of errors are assigned. We shall consider those which appear to be of gravity and importance under the issues joined in the case. It is pointed out by the appellant that there is no evidence of performance of the condition precedent contained in the policy of insurance, which requires proofs of loss to be furnished to the appellant company within 60 days of the date of the fire. The evidence shows that no proofs of loss were made out or forwarded to the appellant company until after September 22, 1925, which was more than 60 days after July 6, the date of the fire. It is insisted however by the appellee, "in controvention of the point raised, that shortly after the fire there was a denial of liability on the part of the appellant company, and that the company thereby waived the furnishing of such proofs of loss. It is true, that the rule is well settled in this State, that where an insurance company expressly denies its liability under a policy of insurance before the expiration of the time for furnishing the proofs of loss required by the policy, the furnishing of such proofs of loss by the insured is thereby waived. However, in this case the appellee did not base his right to recover under the policy on the ground of waiver, but based it on the ground of performance of the terms and conditions of the policy; and the declaration expressly avers that the appellee' performed the condition in the policy requiring him to furnish proofs of loss within 60 days; and under the general issue the burden of proof was therefore on the appellee to show such performance. This requirement of law could not be satisfied by showing facts, which in law might constitute a waiver' of the requirement to furnish such proofs of loss. This same question was before the Supreme Court in Feder v. Midland Casualty Co., 316 Ill. 552, where the court pointed out:

“The appellant contends that there was a waiver of the requirement of proofs of loss by Nitz’s statement that the company refused to pay because the premium had not been paid. If the company had refused to pay because the premium had not been paid it might be contended with great force that such refusal was a waiver of the requirement of the policy that proofs of loss should be furnished; that the company having placed its defense on one proposition waived all others. The appellant by the pleadings has not claimed the benefit of this waiver. The declaration has alleged a performance of the conditions and not a waiver of them; that she furnished the proofs, — not that she was excused from furnishing them.
“The object of a declaration in an action at law is to state the facts constituting the plaintiff’s cause of action upon which he relies to recover, so as to enable the defendant to prepare his defense and meet the facts alleged with appropriate evidence. In order to recover the plaintiff must prove the case alleged in his declaration. It is a primary and elementary principle that a plaintiff can recover only on the case made in his declaration. He cannot make one case by his allegations and recover on a different case made by the proof. Moss v. Johnson, 22 Ill. 633; Menifee v. Higgins, 57 id. 50; Wabash Western Railway Co. v. Friedman, 146 id. 583.)”

It is apparent also, under the holding in the Feder case, that instructions 15 and 16, which were given for the appellee, were erroneous because they informed the jury that the appellee had a right to recover under his declaration averring performance on the ground that the appellant waived such performance by the appellee by a denial of liability.

For the reasons stated, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Cora O’Dea, Appellee, v. J. E. Throm, Appellant.
    Gen. No. 8,295.
    Filed October 29, 1928.
   In accordance with the mandate of the Supreme Court, it is ordered that a judgment is hereby entered in said cause dismissing the appeal taken by the appellant, J. E. Throm, to this court without the assessment of any damages. (Original opinion in the Appellate Court, see 250 Ill. App. 577.)


text:
    J. F. Swiney, Appellant, v. G. L. Miller, Appellee.
    Gen. No. 8,213.
    Opinion filed January 24, 1929.
    Bryan H. Tivnen and J. J. Baker, for appellant; Thomas B. Figenbaum and Carus S. Icenogle,
    Hogan & Reese, Harry I. Hannah and Geo. B. Rhoads, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

In this case a judgment by confession for $5,564.73 was entered on a promissory note for the appellant, J. F. Swiney, as legal holder of the promissory note, on June 17, 1927, in the city, court of Mattoon. After-wards on motion of the appellee, G. L. Miller, the judgment was opened and leave given the. appellee by the court to plead in defense. The appellee pleaded the general issue and- three special pleas; one denying the execution of the note; and another plea was filed by him that the note in question was without consideration and assigned after maturity to the appellant; and a third plea, that the note was without consideration and that the appellant had knowledge of that fact. The controversy in the case involves the issue raised under the second plea denying the execution of the judgment note in question. The jury returned a verdict in favor of the appellee. The appellant made a motion for a new trial which was denied by the court, and thereupon a judgment .was rendered on the verdict in favor of the appellee and against the appellant for costs, and this appeal is prosecuted from the judgment.

The principal error assigned is the denial of the motion for a new trial. An examination of the record discloses the fact that the defense made by the appellee to liability on the judgment note is that he did not sign the note in question; and that his signature thereon is a forgery. The contest concerning the genuineness of the appellee’s signature was very bitter and involved crimination and recrimination, as well as charges of forgery and fraud, and intimidation of parties and witnesses, perjury and subornation of perjury.

The judgment note was signed by Emil Wagner, who is the grandson of the appellee, and purports to have on it also the signature of the appellee. The appellee testified, on the trial, that he did not sign the note; and that he did not authorize any one to sign it for him; and that he had no knowledge his signature had been affixed to the note. The payee of the note, who had assigned the same to the appellant, testified that the note was made out in his place of business, namely, a garage in the City of Mattoon, and was there signed by Emil Wagner; and that Wagner, after signing it, took the note with him for the purpose of having his grandfather sign it: and that thereafter the note was returned to him by mail with the grandfather’s signature attached to the same. Appellant called a witness who testified that he went with the appellant when he drove out to the grandfather’s farm, and was present when the grandfather acknowledged that he had signed the note. The appellant also called a number of witnesses, mostly bank experts of handwriting, who testified from comparisons of the appellee’s purported signature on the note with certain checks and papers containing the genuine signature of the appellee, that in their opinion the signature of the appellee on the note was genuine. The appellee called a number of witnesses, business acquaintances of the appellee, who had more or less knowledge of the handwriting and signature of appellee, who gave their opinion that bhef purported signature on the judgment note was not genuine. There was also much other evidence adduced on the trial which had a tendency either to corroborate •or impeach the testimony of the appellee concerning the genuineness of the signature. There were also witnesses examined whose testimony corroborated the testimony of the payee of the note, E. T. Swiney, in reference to its execution by the appellee; and a number of witnesses were called who testified unfavorably and favorably to his general reputation for truth and veracity. Emil Wagner was called as a witness for the appellee, and was the main witness concerning the genuineness of the appellee’s signature. He testified as follows: “My name is Emil Wagner; I live at Tower- Hill; have lived there all my life, and am 25 years old. My father’s name is Clarence Wagner. I am a grandson of G-. L. Miller. I know E. T. Swiney. Looking at the paper handed me, marked ‘Plaintiff’s Exhibit A’ ” (which was the note in question) “I will state that I have seen it before. The signature there, the first signature on the top line, I signed that. Looking at the second signature below, that appears to be the name of Gk L. Miller: I will state that I wrote that name there. I had no authority from my grandfather. ’ ’ Emil Wagner was the main witness for the appellee to sustain his defense that he did not sign the note in question. After the trial, however, he made an affi: davit, used in support of the motion for new trial, concerning the same matter, which is as follows:

“Emil Wagner, first being duly sworn, on oath, says that he is the same Emil Wagner who testified as a witness upon the trial of the cause entitled J. F. Swiney v. Gr. L. Miller in the City Court of Mattoon, Illinois, and also the Emil Wagner who heretofore at the office of Bryan II. Tivnen, Mattoon, Illinois, made a sworn statement concerning the execution of the note in controversy in the above case.
“Affiant says that the note in controversy in the above entitled cause was signed by Gr. L. Miller, affiant’s grandfather, and .the signature of Gr. L. Mliler thereon was not forged by this affiant; that affiant so stated the facts to be in his prior sworn statement made as aforesaid, which statement was the statement presented to affiant upon the trial of the above case with his signature thereon and which statement affiant at that time denied having executed and denied his signature thereon.
“Affiant says that upon the trial of the case he testified that he had forged the name of Gr. L. Miller, his grandfather, to the note in question and also denied his prior sworn statement as aforesaid, for the reason that he was under coercion and fear of bodily harm on the part of his father, Clarence Wagner, and grandfather, GL L. Miller, and Ed Miller, his uncle, and other relatives and that his testimony upon the said trial in that behalf was not true but was the result of the fear of this affiant caused by the threats and coercion of the aforesaid parties.”

And in connection with the Wagner affidavit the appellant also offered the affidavits of Pugh Snell and J. H. Apple in support of his motion for new trial, which have a bearing upon the veracity of the testimony of the appellee. The affidavits of Snell and Apple are as follows:

“Pugh Snell, being first duly sworn, upon oath states that he is now and has been for more than twenty (20) years last past a resident of the County of Shelby and State of Illinois; that by occupation affiant is a farmer, aged about seventy (70) years;
“That affiant is acquainted with J. F. Swiney, the plaintiff in the above entitled cause, and is also acquainted with Gr. L. Miller and Emil Wagner, the said defendants;
“That on or about the first (1st) day of December, A. D. 1926j affiant was security upon a certain note of said Emil Wagner, and desired to get off of the said note and, if possible, to get the said Gr. L. Miller, the grandfather of said Emil Wagner, to sign the said note as surety, and accordingly on or about the first (1st) day of December, A. D. 1926, affiant, with J. H. Apple, who resides in the County of Shelby and State of Illinois, went to the home of the said Gr. L. Miller and asked the said Gr. L. Miller to sign the said note of said Emil Wagner, but said Gr. L. Miller refused to sign the name or to secure this affiant on the said note, the said G. L. Miller then and there stating that he was already surety upon- Emil Wagner’s note for about fifty-six hundred dollars ($5600.00) to E. T. Swiney, which note he had signed just a few days before, and that he was on enough paper of the said Emil Wagner to about break him up;
“That on or about the 17th day of September, A. D. 1927, affiant and the said J. H. Apple met the said G. L. Miller in Shelbyville, Illinois, and at this meeting the said G. L. Miller said to affiant and the said J. H. Apple that he did not want them to tell anyone of the conversation which he had had with them last fall at his home, that he had been sued by J. F. Swiney in the Mattoon City Court and that he was going to fight the case and that he believed that he could beat the case, by saying that he did not sign the note and that he was not going to pay the said note unless he was forced to do so;
‘ ‘ That affiant told no one of the aforesaid conversation of Gr. L. Miller relative to the said note of fifty-six hundred dollars ($5600.00) until after the trial in the City Court of the City of Mattoon, over the said note, and until affiant had been told that the jury, on the trial of the case of J. F. Swiney against said G. L. Miller, had brought in a verdict in favor of the said Gr. L. Miller ;
"That affiant was not present at the City Court during the said trial and that other than the conversation of said Gr. L. Miller, aforesaid, knew nothing about the matters in said trial;
“That the foregoing matters are true and that affiant is ready to testify in court to the conversation as above set forth if he should be subpoenaed as a witness to do so.”
“ (1) J. H. Apple, being first duly sworn, upon his oath says that he is now and has been for ten (10) years last past a resident of the County of Shelby and State of Illinois; by occupation a farmer; of the age of 49 years;
“(2) That affiant is acquainted with J. F. Swiney, the plaintiff in the above-entitled cause, and with Gr. L. Miller and Emil Wagner, the defendants therein;
“ (3) That on or about the 1st day of December, A. D. 1926, affiant was at the home of the said Gr. L. Miller and heard a conversation between the said G. L. Miller and Pugh Snell wherein Pugh Snell told G. L. Miller that he was surety on a note for Emil Wagner and asked G. L. Miller to sign the said note as surety, and the said G. L. Miller said to said Pugh Snell that he would not sign any note or paper whatever to protect Pugh Snell as surety for Emil Wagner, and further said that he had just a few days before signed a note as surety for said Emil Wagner, payable to E. T. Swiney, for the sum of about fifty-six hundred dollars ($5600.00), and that he (Gr. L. Miller) was on notes as surety for said Emil Wagner for almost enough to break him;
“ (4) That on or about the 17th day of September, A. D. 1927, in the presence of affiant, in the City of Shelbyville, Illinois, Gr, L. Miller said to Pugh Snell and this affiant, in substance and in fact, that he didn’t want us to tell that we were at his home last fall or tell about the conversation that he had with us, of having signed a note to E. T. Swiney; that he had been sued in the Mattoon court on that note, and that he was not going to pay it unless he was forced to do it; that he believed he could beat the note by saying he did not sign it;
“(5) That affiant told no one of the aforesaid conversation of said Gr. L. Miller relative to the said note until after the trial in the City Court of the City of Mattoon over the said note and until this affiant had been told that the jury on the trial of the case of J. F. Swiney against the said Gr. L. Miller had brought in a verdict against the said note in favor of the said Gr. L. Miller;
(6) That affiant was not present at the said City Court during the said trial; and other than the conversation of Gr. L. Miller, aforesaid, affiant knew nothing about the matters in the said trial;
“(7) That the foregoing matters are true and that affiant is ready to testify in court to the conversation with Gr. L. Miller and the facts and circumstances as above set forth if he should be subpoenaed as a witness to do so.”

Considering the foregoing affidavits in connection with the evidence in the record pro and con upon the question of tfie genuineness of the appellee’s signature to the note in question, we are of opinion that the motion for a new trial should have been granted, and that the issue raised concerning the genuineness of the signature of the appellee should be submitted to another jury.

The affidavit of Emil Wagner constituted a sufficient ground to warrant the granting of a new trial. People v. Heinen, 300 Ill. 498, 501; Aholtz v. People, 121 Ill. 560; 20 R. C. L. sec. 80, page 290. And the right of appellant to a new trial is emphasized by the.affidavits of Snell and Apple above set forth. Newly discovered evidence of a material witness who testified falsely on the trial is alone sufficient to warrant the granting of a new trial (People v. Cotell, 298 Ill. 207, 208), and courts should not hesitate to grant a new trial on account of newly discovered evidence, where it is apparent or likely that it might change the result upon a retrial. People v. Cotell, supra; People v. Le Morte, 289 Ill. 11; People v. Wright, 287 Ill. 580, 586.

The appellee assigned a cross-error in this case based upon, the refusal of the court to consider certain counter-affidavits filed by the appellee which refer to some of the matters in the affidavits involved in appellant’s motion for a new trial. It is sufficient to say concerning this matter that the motion for new trial was properly heard and considered by the court on the merits contained in the ex parte affidavits presented by the appellant, and there was no error in striking the counter-affidavits from the files. Coles v. Terrell, 162 Ill. 167; Hartford Life & Annuity Ins. Co. v. Rossiter, 196 Ill. 277; Protective Life Ins., Co. v. Dill, 91 Ill. 174, 178; Nelson v. Equitable Life Assur. Soc., 73 Ill. App. 133; City of Chicago v. Edson, 43 Ill. App. 420.

For the reasons stated, we are of opinion that the court erred in refusing to grant' a new trial; judgment is therefore reversed and the cause remanded.

Reversed and rema/nded.


text:
    John Saults, Conservator of William H. Hill, Plaintiff in Error, v. Marguerite N. Hill, Defendant in Error.
    Gen. No. 8,245.
    Opinion filed January 24, 1929.
    A. B. Dennis and Graham & Dysert, for plaintiff in error.
    Lewman & Carter, for defendant in error.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

John Saults, as conservator of William H. Hill,, commenced this replevin suit in a justice court in Vermilion county against the defendant in error, Marguerite N. Hill, the wife of William H. Hill, to recover the possession of certain household furniture, which it was claimed was wrongfully detained by the defendant in error. There was a trial in the justice court, which resulted in a finding and judgment in favor of the plaintiff in error. Thereupon an appeal was prosecuted to the circuit court, and upon a trial in that court there was a verdict and judgment in favor of the defendant-in error. This writ of error is prosecuted to reverse the judgment.

Several errors are assigned and argued for reversal of the judgment, but for the purposes of a review of the case, it is necessary only to consider the one which concerns the ruling of the court with reference to the competency of William H. Hill, the husband of the defendant in error, as a witness. Hill was called as a witness to testify concerning the ownership of the property and the right to the possession of the same. Counsel for the defendant in error objected to his competency, and the objection was sustained by the court, and he was not allowed to testify. This ruling of the court was erroneous. Under section 5 of chapter 51 of the Act concerning evidence and depositions. Cahill’s St. ch. 51, ¶ 5, the husband and wife are com-, petent witnesses for or against each other “where the wife would, if unmarried, be plaintiff or defendant,” which is the case here; husband and wife are also competent witnesses for or against each other where the litigation concerns the separate property of the wife. McNail v. Zeigler, 68 Ill. 224; Smith v. Long, 106 Ill. 485; Booker v. Booker, 208 Ill. 529.

It may also be pointed out, in reference to the competency of the defendant in error as a witness, that the plaintiff in error was not a conservator of an “idiot, habitual drunkard, lunatic, or distracted person,” but was suing as' conservator of a spendthrift. A spendthrift is not necessarily an “idiot, habitual drunkard, lunatic, or distracted person.”

For the error indicated, the judgment is reversed and the cause remanded.

Reversed and remcmded.


text:
    Winfield R. DuBreuil, Defendant in Error, v. Edward E. Klein, Plaintiff in Error.
    Gen. No. 8,248.
    Opinion filed January 24, 1929.
    Murphy O. Tate, for plaintiff in error.
    O’Hair & McClain, for defendant in error.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

Winfield R. DuBreuil, defendant in error, commenced this suit in the circuit court of Edgar county. The declaration charges that the plaintiff in error, Edward E. Klein, negligently drove his automobile on the 14th day of October, 1923, on a public road in Edgar county; and that, by reason of such negligent driving, he collided with the automobile of the defendant in error; and that he thereby caused injuries to the automobile of the defendant in error; also personal injuries. To this declaration the plaintiff in error filed two pleas: the plea of not guilty; and the further plea alleging that he was not the owner of the automobile referred to in the declaration, and did not operate nor control the same at the time of the injury complained of. Thereafter there was a jury trial at the November term, 1924, and the jury returned a verdict of not guilty. The defendant in error thereupon moved the court for a new trial and the motion was granted and a new trial ordered. Thereafter, at the February term, 1925, there was another jury trial, but the jury were unable to agree upon a verdict and were discharged and the cause was continued. At the November term, 1926, the cause was again called for trial, and the plaintiff in error failing to appear, the case was submitted to a jury as in case of default, merely to assess damages; but was not submitted to the jury upon the main issues, namely, whether the plaintiff in error was guilty of the negligence charged in the declaration. The jury returned a verdict assessing the damages at $1,013, and the court rendered judgment for that amount against the plaintiff in error, together with costs of the suit. This writ of error is prosecuted from the judgment.

It is well settled that where the defendant in a case of this kind has filed a plea or pleas which raise issues that involve the question of the plaintiff in error’s guilt of the negligence charged in the declaration, these issues must be determined by the jury adversely to the defendant before damages can be assessed against him, whether the defendant in the suit be present or absent at the trial. Manlove v. Bruner, 2 Ill. (1 Scam.) 390; Covell v. Marks, 2 Ill. (1 Scam.) 391; Mason v. Abbott, 83 Ill. 445; Flora v. Fields, 156 Ill. App. 341; Wacker v. Young, 173 Ill. App. 255; Stare v. Vayda, 234 Ill. App. 309. It is apparent therefore that the judgment rendered in this case is erroneous. The judgment is therefore reversed and the cause remanded.

jReversed and remanded.


text:
    Louise Chenoweth, Residuary Legatee and Devisee of the Last Will and Testament of Cassidy Chenoweth, Deceased, Appellant, v. Will Chenoweth and The Millikin Trust Company, Executor of the Last Will of Cassidy Chenoweth, Deceased, Appellees.
    Gen. No. 8,262.
    Opinion filed January 24, 1929.
    Redmon & Redmon, for appellant; Russell R. Renc of counsel.
    Lb Forgee, Black & Samuels, for appellees.
   Mr. Presiding Justice Niehaus

delivered the opin ion of the court.

This appeal is prosecuted from a judgment of thi circuit court of Macon county, allowing a claim of the claimant Will Chenoweth for the sum of $11,690 as a claim of the sixth class against the estate of Cassidy Chenoweth, deceased. The claim as filed against the estate included $4,740 which Dr. Cassidy Chenoweth had received as rent for an .apartment over the offices where he and the claimant practiced medicine; and $6,950 for one-half of the amount of the rental value of the offices in the same building, occupied by the parties as partners from May 1, 1913, to September 1, 1925.

After the allowance of the claim, it was stipulated by the parties to the controversy, that the item $4,740 rent received by the deceased was properly allowed; and that the only question in dispute remaining in the controversy was the claim for one-half the rental value of the main floor of the building occupied by the deceased and the appellee for the practice of medicine.

The appellant, concerning the controverted item of $6,950, states in his brief that the record with reference to this item discloses the following facts:

“On April 26, 1912, Cassidy Chenoweth executed and delivered to William J. Chenoweth a warranty deed conveying the premises upon which is situated the building used by Dr. Cass and Dr. Will Chenoweth at the time of Dr. Cass Chenoweth’s death as their offices in the practice of medicine. There is no evidence in the record of any partnership existing between Dr. Cass and Dr. Will Chenoweth until January, 1918, nor is there any evidence of either one of them occupying the above premises until that date. The testimony of Bertha Falk, who was office girl there from January, 1918, until the death of Cassidy Chenoweth in August, 1925, discloses a partnership between the doctors during this period.
“On October 31, 1922, Dr. Cassidy Chenoweth duly executed his last will and testament. Under the provisions of this will he gave and bequeathed to his" son, Dr. Will Chenoweth, all of the assets and equipment of their partnership, excepting his interest in all book accounts, including all moneys due or owing to himself or the medical firm. He further devised and bequeathed, after bequeathing a certain legacy to another son, the rest and remainder of his property, both real and personal, to his wife, Louise Chenoweth, the appellant herein.
“The record further discloses a statement signed by Cassidy Chenoweth, dated December 14, 1922, on a piece of stationery bearing the heading ‘Drs. Cass and Will Chenoweth, 129 East Williams Street, Decatur, Illinois,’ as follows:
“ ‘That my estate shall repay my son, Will, the rent collected, and the office rent unpaid. This is a statement of the facts of the partnership of myself and son, Will. Our receipts from our practice we divide equally. I have always received the rent for the rooms above our offices. My son has never been paid the rent for the use of our office.
Cassidy Chenoweth.’
“On March 3, 1925, Dr. Cass Chenoweth and Dr. Will Chenoweth entered into a Written partnership agreement under which it was agreed that the partners would continue in business for a period of five years from March 1,1925, for the purpose of practicing medicine under the name of ‘Cass & Will Chenoweth.’ Under this agreement each of the partners would be liable for one-half of the expenses and losses, and entitled to one-half of the profits of the partnership. It was provided that if either of the partners should die before the end of the term of'five years the surviving partner was to pay all partnership debts, and to own as his own property all of the business assets of the partnership, including accounts receivable, and would not be required to account for any partnership assets or proceeds. This agreement further contained a clause stating that nothing contained should be construed in any way to affect, alter, modify or change any or either of the writings, instruments or conveyances made by them or either of them prior to the date of this agreement in relation to any matters affecting the rights of others; and it further provided that they and each of them ratify, confirm and approve each and every of said writings, instruments and conveyances according to the tenor and effect of the same as expressed by said writings, instruments and conveyances.”

It is insisted by the appellant that the claim referred to is an indebtedness of the partnership existing between the appellee Will Chenoweth and the deceased, Cassidy Chenoweth, prior to the death of Cassidy Chenoweth, which occurred in August, 1925. But it clearly appears from the evidence that the matter of the rent for the offices in the' building owned by the appellee and used by the copartnership in the practice of medicine never entered into or became a part of the partnership transactions, and by the action of the parties themselves it was eliminated therefrom; and that Cassidy Chenoweth, the deceased, by the writing hereinbefore set forth, acknowledged his personal liability to pay one-half of the rent due for the offices which the copartnership occupied and thereby made it Hs individual obligation to be paid out of his estate. We are of opinion therefore, in this condition of the record, that the item in the claim referred to was a proper and legal charge against the estate of the deceased, and not an unsettled partnership matter. What was said by the court in Carpenter v. Wells, 65 Ill. 451, appears to be distinctly applicable to this phase of the controversy: “The proof is overwhelming, whatever the intention of the parties may have been at the outset, that this sum never did go to the credit of the appellee on the books of the concern, nor was it used in the concern during the continuance of their partnership. It is a bald case of a promise to pay an honest debt, and that promise unfulfilled. This $800, as the proof conclusively shows, never did go into the firm account, or into the business of the firm. If it did, it was the duty of the appellant to show it by competent testimony. This he has wholly failed to do.” It is well settled law that where a transaction is a matter which has by the agreement of the parties become an individual obligation distinct and separated from the matters involved in the partnership, that the rule invoked by the appellant does not apply. Meyers v. Winn, 16 Ill. 135; Wells v. Carpenter, 65 Ill. 447; Purvines v. Champion, 67 Ill. 459; Tichenor v. Newman, 186 Ill. 264; Townsend v. Gregory, 132 Ill. App. 192; Berry v. De Bruyn, 77 Ill. App. 359; Johnson v. Campbell, 13 Ill. App. 120.

For the reasons stated, judgment is affirmed.

Judgment affirmed.


text:
    Industrial Acceptance Corporation, Appellee, v. Mary A. Haering, Appellant.
    Gen. No. 8,265.

      Opinion filed January 24, 1929.
    J. Ivan Cole, for appellant.
    E. A. Donnelly, Pratt, Heffernan & Ramseyer, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

In this case the Industrial Acceptance Corporation, appellee, commenced this suit in replevin in the circuit court of McLean county against the appellant, Mary A. Haering, to recover an Oakland landau sedan of the value of $1,000, claiming the right of possession and property of the automobile in question by virtue of the lien of a chattel mortgage held by the appellee, the property being wrongfully detained by the appellant, as averred in the declaration. The declaration also contains a count in trover for the alleged wrongful conversion of the automobile in question, the sheriff having been unable to recover the automobile from the appellant under the writ. To the declaration the appellant filed the general issue, which was afterwards withdrawn and substituted therefor a plea in abatement of the suit, which plea is as follows:

“And the said Mary A. Haering, by J. Ivan Cole, her attorney, comes and defends, etc., and by leave of court first had and obtained, and by agreement of counsel, files this, her amended plea, and prays judgment of the said writ because she says that the Industrial Acceptance Corporation, plaintiff herein, of South Bend, Indiana, is a foreign corporation organized in Virginia on, to wit, January 1,1925, and having its operating office at South Bend, Indiana. That it is not engaged in banking, insurance, building and loan or the business of acting as surety.
"That plaintiff corporation was organized for profit for the purpose of loaning money and of purchasing at a discount commercial paper secured by chattel mortgages or other lien instruments upon motor vehicles.
“That it maintains a field service organization operating out of and under the direction of its operating office of South Bend, Indiana. The men operating in its field service division travel through the designated territories, call upon Studebaker dealers, exclusively, for the purpose of inducing said dealers to offer for sale to the Industrial Acceptance Corporation the dealer’s notes secured by contracts, chattel mortgages or other lien instruments covering motor vehicles, but who have no authority to purchase said notes on behalf of plaintiff. To explain to such dealers as wish to avail themselves of the privilege of discounting their purchaser’s notes with plaintiff corporation, the plan of operating of the business of plaintiff corporation, so far as it affects the dealer, and to explain the requirements and conditions to be followed by the dealer in obtaining and forwarding such commercial paper. To obtain details of any complaint made by any dealer forwarding the paper to Industrial Acceptance Corporation and to forward such details to the South Bend office of the plaintiff corporation for consideration and any necessary adjustment.
“And defendant avers that as a condition precedent a dealer who contemplates1 offering his commercial paper to plaintiff corporation must make a financial statement of his financial condition and submit the same to the nearest branch office of the Studebaker Corporation of America, who forwards it to the home office of the Studebaker Corporation of America at South Bend, Indiana, with a recommendation of the branch office for credit for the dealer. That the home office of said Studebaker Corporation makes whatever investigation it wishes and forwards the financial statement, together with its recommendation and the branch office recommendations, to the operating office of the Industrial Acceptance Corporation, also at South Bend, Indiana. If the recommendation proves to be satisfactory to plaintiff corporation such dealer is so notified by the plaintiff that he may forward his commercial paper to plaintiff for acceptance or rejection.
“Defendant avers, however, that there is no obligation to the dealer to offer any notes or contracts to the plaintiff corporation, nor is there any obligation on the plaintiff corporation to purchase from the dealer any such offers as may be made by such dealer.
“Defendant further avers that the dealer, in offering notes and mortgages to the plaintiff corporation, may do so under two different plans according to the arrangement made by plaintiff corporation with the dealer at the time the dealer’s credit is accepted by plaintiff corporation. The said two plans being described as follows:
“Mail Plan. Under this plain the dealer is required to obtain a chattel mortgage on the automobile sold to secure the chattel mortgage note for the deferred installments, which the purchaser of the car is to pay. The mortgage is properly signed by the purchaser, acknowledged, recorded by the dealer in the Recorder’s office of the proper county, and assigned by the dealer to plaintiff corporation. The mortgage and the note also properly executed and endorsed by the dealer are sent by mail to the Industrial Acceptance Corporation, plaintiff, at South Bend, Indiana, and if accepted a check is sent to the dealer for the agreed purchase price of the note. If rejected the note and chattel mortgage are returned to the dealer from whom they were received.
‘ ‘ The Draft Plan. Securing of the chattel mortgage and note and the assignment to the Industrial Acceptance Corporation, plaintiff, of the mortgage and the endorsing of the note are identical with the facts as explained in paragraph next above described ‘Mail Plan.’ Under this plan, however, instead of sending the note and contract through the mail, the dealer places the chattel mortgage and note in a draft envelope form supplied by plaintiff corporation. This envelope is a sight draft drawn upon plaintiff corporation, payable at the First National Bank of South Bend, Indiana. The dealer deposits this draft envelope, with the papers enclosed at dealer’s bank, which forwards it through the usual banking channels to South Bend, where the enclosed papers are examined by plaintiff corporation and if the papers are properly executed the draft is accepted and paid by plaintiff corporation at the First National Bank of South Bend. Said draft plan provides, however, as stipulated on the face of the draft, that in the event the offer submitted by the dealer is, upon further investigation of the purchaser’s credit or for any other reason, unsatisfactory to the plaintiff corporation, the plaintiff has the right to redraw upon the dealer for the amount of the paid draft, which draft the dealer obligates himself to pay upon presentation.
“Defendant avers that in determining the advisability of accepting or rejecting paper so submitted by dealers, plaintiff corporation advised with national and local credit bureaus with reference to the financial standing of makers of paper submitted for purchase.
“Defendant further avers that in case of a purchase of such paper by plaintiff corporation, the maker or makers of such paper are notified by plaintiff that it has purchased the note and directs them by mail to make payments to it, the plaintiff, at South Bend, Indiana. It furnishes each purchaser with a statement of the amount of the note, the date of maturity and the amount of each installment. Form notices and letters are principally used by plaintiff corporation, being sent through the United States mail from South Bend, Indiana. That the collection of notes purchased by plaintiff corporation is principally carried on by mail. These notes being all payable to the order of the dealer, who has in turn endorsed them to plaintiff corporation, said notes being payable at the office of plaintiff corporation at South Bend, Indiana.
“Defendant further avers that in case there is a serious default in the payment of an installment due on such paper, the paper is mailed to any attorney living in the vicinity of the maker of the paper with ini structions to such attorney to use whatever means are necessary to effect collection.
“Defendant further avers that the plaintiff corporation and Studebaker Corporation of America are two separate and distinct corporations.
“Defendant avers that since the organization of said plaintiff corporation, as aforesaid, it has continually and is now carrying on its said business in the manner as above alleged with citizens of the State of Illinois, purchasing paper and refusing to purchase paper at its home office in South Bend, Indiana, secured by chattel mortgages on automobiles purchased and in the possession of citizens of the State of Illinois from automobile dealers, also citizens of said state. And in that connection defendant avers that on, to wit, the 16th day of October, 1926, at Bloomington, Illinois, one John Barr executed and delivered his promissory note in the sum of five hundred seventy-five ($575.00) dollars, payable in twelve equal monthly installments to the order of John Whittington, at the office of the Industrial Acceptance Corporation of South Bend, Indiana. That said note was given to evidence the purchase price of the automobile described in plaintiff’s declaration and in each count thereof. That to secure said note so delivered the said John Barr executed a chattel mortgage to the said John Whittington, conveying said automobile so described in plaintiff’s declaration and in each count thereof, then and there on the date last above mentioned, and delivered the same to the said John Whittington. That thereupon, then and there, the said John Whittington delivered said automobile to the said John Barr. That the said John Barr acknowledged said chattel mortgage in due form of law and that the said chattel mortgage was recorded by the said John Whittington in accordance with the statute in such case made and provided. That said note and mortgage were forwarded to plaintiff corporation at its office in South Bend, Indiana, and that said paper, upon investigation as aforesaid, was then and there purchased by said plaintiff corporation for value and before maturity at its said office in South Bend, Indiana.
“That subsequently thereto this defendant purchased said automobile described in plaintiff’s declara-" tion, and in each count thereof, while said mortgage was a valid and existing lien against said car.
“And defendant avers the fact to be that the plaintiff corporation herein is a foreign corporation. That said plaintiff corporation had not at the time of the purchase of said note aforesaid nor at any time since has it complied with the statute, being an act in relation to corporations for pecuniary profit, and approved June 28,1919, and particularly section 80, as to foreign corporations in connection therewith. By means whereof, defendant avers that plaintiff ought not to be permitted to maintain its said suit, either at law or in equity in any of the courts of this state, and that she, the said Mary A. Haering, is ready to verify; wherefore, she prays judgment of the said writ, and that the same may be quashed, etc.”

The appellee thereupon filed a demurrer to the plea in abatement, alleging as special reasons that: “The plea shows on its face that plaintiff corporation is not transacting business in the State of Illinois within the meaning of the statutes, being Chapter 32, Cahill’s Illinois Statutes.” Also: “That the business of plaintiff corporation, as disclosed by the plea, is in its essential characteristics commerce among the states within the meaning of the Constitution of the United States.”

The trial court sustained appellee’s demurrer, and appellant abided by his plea, and thereupon judgment was rendered against the appellant in the sum of $1,000. This appeal is prosecuted from the order sustaining the demurrer and the judgment.

The only question involved in this appeal is whether the facts averred in the plea show that the appellee, a foreign corporation, in acquiring the commercial paper and chattel mortgage referred to in the plea, was engaged in business in this State in violation of section 80 of the General Corporation Act, which is as follows': “Each foreign corporation organized for pecuniary profit (except banking, insurance, building and loan and surety companies), riot now licensed to do business in, this State, shall, before it transacts any business or maintains an office in this State, procure a certificate of authority therefor from the Secretary of State. No certificate shall issue to any foreign corporation authorizing it to transact business in this State until the same portion of its capital is paid in as is required of like corporations organized under the laws of this State.” Chapter 32, sec. 80, Callaghan’s Illinois Statutes Annotated. It is clear from the facts averred in the plea in abatement that the appellee has not maintained any office in this State nor had any agent in this State for the transaction of its business; that the office which it maintains for the transaction of its business, which is the loaning of money and purchasing at a discount commercial paper secured by chattel mortgages or other lien instruments upon motor vehicles, is situated at South Bend in the State of Indiana. It further appears that the negotiations for the purchase and assignment of the notes and chattel mortgage in question were carried on and consummated at South Bend in the State of Indiana. We are of opinion, therefore, that the transaction by which the appellee acquired the notes and chattel mortgage in question and became the holder thereof does not constitute a transaction of business in this State as set forth in the act referred to. Pembleton v. Illinois Commercial Men’s Ass’n, 289 Ill. 99; Bamberger, Bloom & Co. v. Schoolfield, 160 U. S. 149; Higgin Mfg. Co. v. Foreman Bros. Banking Co., 222 Ill. App. 29; Commercial Investment Trust, Inc. v. Gaines, 193 N. C. 233, 136 S. E. 609; Davis v. General Motors Acceptance Corp., 153 Ark. 626, 241 S. W. 44; General Motors Acceptance Corp. v. Lund, 60 Utah 247, 208 Pac. 502; Jones v. General Motors Acceptance Corp., 205 Ky. 227, 265 S. W. 620; General Motors Acceptance Corp. v. Shadyside Coal Co., 102 W. Va. 402, 135 S. E. 272; Commercial Credit Corp. v. Boyko, 103 N. J. L. 620, 137 Atl. 534; Southern Discount Co. v. Rose (Tex. Comm.), 296 S. W. 482; Portland Cattle Loan Co. v. Hansen Livestock & Feeding Co., 43 Idaho 343, 251 Pac. 1051; Fletcher’s Cyclopedia of Corporations, vol. 9, p. 9987, ¶ 5929. The case of Guest Piano Co. v. Ricker, 274 Ill. 448, 449, cited by appellant, does not sustain appellant’s contention. A very different state of facts appears in that case, and the court distinctly points out the following facts: ‘ ‘ When this act went into effect, appellant was conducting a general business of selling and leasing pianos within the State of Illinois, the sales, leases and contracts being made and executed wholly within the State of Illinois; the appellant maintained a salesroom in the city of Quincy, Illinois, and there . . . was conducting and carrying on a general . . . sale and leasing business without having complied with the laws of Illinois.”

The mere bringing of a suit by a foreign corporation does not constitute in and of itself the doing of business in this State within the meaning of the statute. Pressed Radiator Co. v. Hughes, 155 Ill. App. 80. Moreover, it may also be emphasized, that the transaction in question, by means of which the appellee acquired property rights in the notes and chattel mortgage in question, and in conformity with which the notes and mortgage were transmitted from this State to the appellee in the State of Indiana after it had acquired the ownership thereof, was a matter of interstate commerce, and was therefore permissible under the provisions of the Constitution of the United States. International Text-Book, Co. v. Pigg, 217 U. S. 91; Lehigh Portland Cement Co. v. McLean, 245 Ill. 326; American Art Works v. Chicago Picture Frame Works, 264 Ill. 610; Higgin Mfg. Co. v. Foreman Bros. Banking Co., supra.

For the reasons stated, we conclude that the court properly sustained the demurrer to the plea in abatement. Judgment affirmed.

Judgment affirmed.