author: Mr. Presiding Justice Wolfe

text:
    Ralph A. Burster, Administrator of the Estate of George Burster, Deceased, Appellant, v. National Refining Company, Appellee.
    Gen. No. 8,737.
    Opinion filed February 19, 1934.
    Heard in this court at the October term, 1933.
    John E. Cassidy, for appellant.
    Eckert & Peterson, for appellee; A. R, Peterson and Owen Rall, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

Ralph A. Burster as administrator of the estate of George Burster, deceased, filed a suit in the circuit court of Peoria county, against the National Refining Company, a corporation, and L. G. Shockey, as joint defendants. The declaration charges that on May 29, 1931, the defendant Shockey was driving an automobile in his own behalf and as agent and servant of the National Refining Company in Woodford county near the town of El Paso, on a paved road designated as State Route No. 8; that the automobile that the defendant, Shockey, was driving, collided with the automobile in which George Burster, a minor child, 12 years of age, was riding; that by reason of the negligence of Shockey, in his own behalf and as agent and servant of the defendant, the National Refining Company, the plaintiff’s intestate was killed.

To this declaration the defendant, Shockey, filed a plea of general issue. The National Refining Company also filed a plea of the general issue, and in addition thereto filed special pleas denying that they owned the automobile that Shockey was driving, and did not operate or control the same. The case came on for trial and at the close of the plaintiff’s evidence, on motion of the National Refining Company, the court instructed the jury to find the National Refining Company not guilty. The case proceeded against Shockey and the jury returned a verdict finding Shockey guilty and assessed the plaintiff’s damages at $10,000. The plaintiff excepted to the ruling of the court in directing a verdict in favor of the Refining Company, and has perfected an appeal to this court to review that question.

For a period of five years or more before the accident, the defendant, Shockey, had been in the employ of the Refining Company as a salesman. He resided with his family at Woodstock, Illinois, and worked for this company in an assigned territory, which includes several counties in the northeastern part of Illinois and the southeastern part of Wisconsin. Shockey’s duties required him to call upon customers and prospective ones in the towns located in these counties for the purpose of promoting the sale of the products of the National Refining Company. He was to take orders and distribute literature and signs, and perform such duties as are usually done by salesmen.

The office of the National Refining Company which had supervision over Shockey arid the territory in which he worked was .located in Peoria, Illinois. The manager of the Peoria office was Mr. W. H. Allen, and the assistant manager was Mr. P. A. Wyler. Communication was carried on between Shockey and the Peoria office by means of the U. S. mails. Shockey made daily reports of his work to his employer with respect to his operations and sales. This information was given on a printed blank furnished by the Refining Company and mailed to the Peoria office each day. The blank contained space for information about Shockey’s expenses. These daily reports to the company were the official report. All other communication was by correspondence between the main office and Mr. Shockey’s headquarters, which were at his home in Woodstock. On the day of the accident and for a year and a half immediately preceding, Shockey owned an Essex automobile, in which he traveled from town to town in the course of his work for the National Refining Company. It was the usual method of transportation used by him at that time. The National Refining Company paid Shockey a salary of $200 per month, and in consideration of the use of his car the Refining Company paid Shockey $2 per day. When Shockey was proceeding about his business in his assigned territory he carried a portfolio, and advertising literature of the Refining Company. In his car he transported signs of the company, which advertised its products, such as Enarco Motor Oil and White Rose Grasoline. The literature and signs were usually shipped to Shockey’s home from the Peoria office of the company. On the spare tire of his Essex automobile was a tire cover with advertising of the National Refining Company’s products.

Before May 29, 1931, it had been the practice of the National Refining Company to hold sales meetings in the City of Peoria about three times a year. To these gatherings, salesmen such as Shockey were called from all parts of the Peoria district to attend the meetings, which usually lasted the greater part of one day. After the business of the day was finished they were dismissed and were free to return to their several territories. In requesting their different salesmen to attend these meetings, the Refining Company gave no directions as to the routes or methods the salesmen should come from their respective homes to Peoria, but were usually allowed railroad mileage from their homes to the City of Peoria. On Friday, May 28,1931, Shockey had been working in his assigned territory. On his arrival at his home in Woodstock, he received word from his superior, Mr. Allen, by mail, that he should be in Peoria at 8:30 o’clock in the morning of the following day, for the purpose of attending a sales meeting of the National Refining Company. This meeting was to be held at the Jefferson Hotel in the City of Peoria.- Mr. Shockey left his home in Woodstock on Saturday morning at 3:30. o’clock a. m., in his Essex automobile. He drove the car himself. He arrived in the City of Peoria, proceeded to the Jefferson Hotel and attended the meeting of the salesmen of the National Refining Company. The meeting was presided over by Mr. Allen, superintendent of the Peoria office. It continued until about 4:30 p. m., when the meeting was dismissed. After the meeting Shockey went to the company’s office, a distance of about two miles, and obtained a quantity of envelopes, reports and order books and some of the company’s signs for distribution in his territory. At the office he also received his salary and expense account check, which was figured on the basis of his railroad fare from his home in Woodstock to Chicago and from Chicago to Peoria, and the return fare the same way. Mr. Shockey had his check cashed at a store in Peoria, after which he placed the signs and literature that he had procured at the main office, in his automobile and started for his home in Woodstock. On his way home the collision occurred which caused the death of Gfeorge Burster, plaintiff’s intestate.

It is insisted by the appellant that the court erred in not permitting the jury to pass upon the question of fact whether at the time of the accident, the defendant, Shockey, was a servant of the National Refining, Company, and whether Shockey was then and there acting within the scope of his employment at the time the collision occurred. The appellant contends that this was a question of fact that should have been left to the jury to decide. On the other hand the appellees contend that the evidence clearly establishes the fact that at the time of the collision, Shockey was not a servant of the Refining Company, hut was an independent contractor; therefore, it was the duty of the court to direct a verdict in their favor.

Neither the Supreme Court nor Appellate Courts have passed upon the question now presented for adjudication. The case of Meece v. Holland Furnace Co., 269 Ill. App. 164, is cited by the appellees as being authority for their contention. In the Meece v. Holland Furnace Co. case, Meece was employed as a salesman for the Holland Furnace Company; the time and effort that he spent in his work were left wholly to him. He did not receive any stated salary for his services, but worked on a commission basis. The Appellate Court of the Third District in the Meece case have reviewed quite a number of cases that are similar to this case that we are now considering. This is beneficial to us in making an analysis of a great many of the cases that the parties to this suit now rely upon. They follow the rule as laid down in a great many courts, that an independent contractor is one who renders service, representing the will of the person for whom the work is done, only as to the result of his work and not as to the means by which it is accomplished.

In the case of American Sav. Life Ins. Co. v. Riplinger, 249 Ky. 8, 60 S. W. (2d) 115, the court held that the Life Insurance Company was not liable for the injury to a pedestrian caused by the negligence of one of their soliciting agents employed on a commission basis; while in connection with this work he was driving his wife’s automobile. The court in that case say: “A master within the doctrine of respondeat superior is the one who cannot only order the work, but also how it should be done. The doctrine applies only where the relationship of master and servant exists at the time and in respect to the thing causing the injury and from which it arose and then only when the one sought to be charged has some right in some way to control the conduct of the party having caused the injury.”

The court in the case of Williams v. National Cash Register Co., 157 Ky. 836, 164 S. W. 112, after discussing the contract of employment between the agent and the Cash Register Company, stated that the company had a right to direct and control the method of delivery of their cash registers, and held the Cash Register Company liable for the injury caused by the automobile of their agent. The court in that case held that the man was the agent, and not an independent contractor, and in their opinion say: “The test of the relationship is the right to control. It is not the fact of actual interference with the control but the right to interfere that makes the difference between an, independent contractor and a servant or agent. To enlarge the test is whether the employee represents his employer as to the result of the work only, or as to the means as well as the result. If the employee is merely subject to the control or direction of the owner or his agent as to the result to be obtained, he is an independent contractor. If the employee is subject to the control of the employer as to the means, he is not an independent contractor.”

The National Refining Company contends that even though Mr. Shockey may not have been an independent contractor with reference to his relationship to the company, he was an independent contractor with reference to the use and operation of the automobile at the time and place of the accident involved; that in operating- the automobile Shockey was not a servant of the Refining Company, but was an independent contractor ; that because the company had no control over the operation of the motor vehicle in question by Shockey, the defendant is not liable for the negligence of Shockey at the time of the accident in question.

The courts frequently refer to the lack of control as establishing the relationship of an independent contractor, but an examination of the- cases discloses that it is not essential that this relation at all times be an independent relationship, but they hold that the employment may partake, with respect to certain elements, of a master and servant relationship, and with respect to other elements may partake of an independent contractor relationship. In the'case of Nettleship v. Shipman, 161 Wash. 292, 296 Pac. 1056, the court in discussing the facts similar to the ease now before us held; That where the defendant had no control whatever over the salesman in the transaction of his work, nor the method of locomotion which he mig’ht take in the transaction of such work but was only interested in the results thereof that under such circumstances he was a subcontractor and not a servant of the defendant. LaMay v. Industrial Commission, 292 Ill. 76.

The court in the case of American Sav. Life Ins. Co. v. Riplinger, 249 Ky. 8, 60 S. W. (2d) 115, in discussing the manner of determining* whether a person is a servant of his employer or an independent contractor or whether sometimes the employee may act in a dual capacity have this to say: “The method of payment, the right to discharge, the right to control the result of the work, the fact that the employee is at the time engaged in no other employment, are to be considered in determining whether the right to control the means by which the result is accomplished is also in the employer, but they are subordinate to the latter right, since a person may be a servant or agent as to one part of the undertaking* and an independent contractor as to other parts.”

Perhaps the leading case on the subject of master and servant and an independent contractor is Pyyny v. Loose-Wiles Biscuit Co., 253 Mass. 574, 149 N. E. 541. The facts in the Pyyny case and the questions of law involved are so nearly the same as in this case that we quote at length from that case: “This is an action of tort to recover damages to the automobile of the plaintiff, caused by a collision with an automobile driven by one Bancroft. It is admitted that Bancroft, as a'traveling salesman, was in general employment of the defendant. It is also ‘admitted that Bancroft was negligent and that the plaintiff was careful.’ The sole issue raised by the “exceptions, taken by the defendant to the refusal of the trial judge to direct a verdict for the defendant, ‘is whether or not at the time of the accident said Bancroft was operating the automobile in the course of his employment as a salesman of the defendant under such circumstances that the defendant is liable for his negligence at that time.’

“Upon the question of the legal relationship between Bancroft and the defendant, the facts in their aspect most favorable to the plaintiff taken from the examination and cross-examination of Bancroft, in substance are that he had been a traveling salesman for the defendant company since August, 1923, and was such at the trial in March, 1925; that ‘he had no regular hours to work; his time is his own and the trade that he can see any time at all during the 24 hours a day, he tries to see them’; that he owned the automobile that was in the collision, and used it in his business as traveling salesman; that his sole business was to sell biscuits for the defendant; that he was paid a salary and commission and the expense of operating the ear; that he always carried a sample case and advertisements in the back of his Ford coupe car, and they were in the car at the time of the accident.

“It further appeared, in substance, that about 1 o’clock on the day of the accident he drove from Leo-minster to an Elks’ Field Day picnic at Fort Pond, in Lancaster, and remained there until around 4 o’clock, when he went to a weekly sales meeting in Fitchburg ; that after the sales meeting, at a quarter to 5, he started in the car with a friend whom he had found at the picnic to return to Fort Pond; and that the accident happened on the road between Lunenburg and the pond at Lancaster. It further appeared, in substance, that ‘he did selling until he got to the Field Day’; that he ‘was going back to see some of his trade’; that ‘he didn’t have an appointment with any one in particular; didn’t expect to see any individual, but as a whole expected to see some of his trade there; he intended to do business with them if he should see them.’

“On the above facts it is plain Bancroft was his own master in respect to the time he should devote to the business of the defendant, and to the place within certain designated territory where he should solicit sales. It is also plain that it was his duty and not that of the defendant to register the automobile and obtain a license to operate it. The defendant had no right on the reported facts to direct the manner in which Bancroft should control his car. It assumed no obligation to keep the car in repair other than is involved in its agreement to pay the expense of operating it, or, as the plaintiff puts it in his brief, to pay ‘so much per mile for the number of miles that he (Bancroft) operated said car for them in connection with his employment. The exceptions must be sustained and judgment entered for the defendant.’ ”

In the case of Stockwell v. Morris, — Wyo. —, 22 P. (2d) 189, the facts are very similar to the case now before us. After an exhaustive review of similar cases in other states, the court held that the salesman for the Maytag Company (Morris — employee) was in the service of the company but was an independent contractor and the Maytag Company was not liable for the damage caused by Morris. Many of the cases cited in the appellants’ and appellees’ briefs are discussed in this elaborate opinion of the court in the Stockwell case.

We have examined the cases cited by the appellant as tending to show that Shockey was a servant of the National Refining Company at the time of the collision of the automobiles which caused the death of the plaintiff’s intestate. In all or nearly all of the cases cited, the company had retained the authority to direct the means and the manner in which their salesmen should conduct the business.

The evidence in this case shows that at the time of the collision, Shockey was driving his own automobile and not at the direction or under the control of the National Refining Company; that to some extent in the performance of his duties he was under the direction and control of the Refining Company but so far as his actual movements were concerned he was free to go at any time or place in certain designated territory to transact his business; that Shockey in going to and from the salesmen’s meetings at Peoria, used his own discretion in how he should travel, and that at the time of the collision he was not acting as a servant of the National Refining Company. Therefore, we conclude that the trial court properly directed the jury to find a verdict in favor of the National Refining Company, and the judgment of the circuit court of Peoria county should be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Dove

license: Public Domain

text:
    John Buffo, Appellee, v. Mutual Benefit Health and Accident Association, Appellant.
    Gen. No. 8,514.

      Opinion filed February 19, 1934.
    Heard in this court at the May term, 1932.
    Luther F. Binkley and Early & Early, for appellant.
    Karl C. Williams and William D. Knight, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

This suit was instituted by appellee on September 24, 1931, to recover under the provisions of an accident and health insurance policy issued by appellant. The declaration sets forth the policy in haec verba and alleges that appellee, on December 6, 1930, was accidentally thrown against the windshield of an automobile in which he was riding, whereby his right hand was severely cut and as a result thereof he is wholly disabled and will be permanently prevented from using his right hand and engaging in his business of peddling fruit and vegetables. The declaration then alleged that written notice and proof of injury was given to the defendant promptly and within 20 days after the accident, in accordance with the provisions of the policy; that all forms furnished by the defendant to the plaintiff and to his doctors were promptly and properly filled out and returned to the defendant and that affirmative proof of loss was furnished to the defendant at its office and by its agent in Rockford; that all premiums have been promptly paid and all the terms of the policy required to be performed by plaintiff have been performed by him. To this declaration the defendant filed the general issue and several special pleas, by one of which it was averred that plaintiff failed to give appellant written notice of his supposed injury within 20 days after the date of the accident, as required by the provisions of the policy. The other special pleas averred that plaintiff’s disability, if any, was due to an infection which did not continuously confine plaintiff within doors and did not require regular visits by a licensed physician at least once each week as required by the terms of the policy. _ Issues being joined, the case was submitted to a jury, resulting in a verdict and judgment for $712.50, from which defendant appeals. The defendant offered no evidence, and it is his contention in this court that the trial court erred in refusing to instruct the jury to find the issues for the defendant; that the trial court also erred in giving and refusing-instructions and that the judgment is excessive.

The evidence discloses that appellee, a man 41 years of age, has been a buyer, seller and peddler of fruits and vegetables since he was 12 years old, and knows no other business. It was his custom to buy a carload or part of a carload of fruit or vegetables, which generally came in sacks or baskets, and he would then load them upon his truck and sell them, sometimes at wholesale and at other times in smaller lots to individual customers. On December 6, 1930, he was riding in his truck, which was used in his business and which was being driven by his son. For some unexplained reason, the truck stopped suddenly and he was thrown against the windshield, forcing his right hand through it and resulting- in a cut in the shape of a horseshoe on the back of his hand, midway between the knuckles and the wrist. It was a deep, lacerated wound, extending through the skin, the superficial fascia, the tendons and almost to the bone, necessitating 25 or 30 stitches. Immediately after the accident, appellee went to the hospital and had the wound dressed by a competent, licensed physician and surgeon and remained there overnight, returning to his home either the next day or the third day thereafter, and the physician continued to treat him from time to time. The third day a pus infection, resulting from the cut or wound, was observed and the hand was considerably swollen, as the infection penetrated a short distance up the hand and into the fingers, necessitating the application of boracic acid solutions every hour or two for a week or 10' days, delaying the healing of the wound for a little longer than two weeks, and the hand itself did not heal for several months. The physician testified that he treated the hand after the infection disappeared as often as once a week for two or three months, and after that his treatments were irregular, possibly every two weeks; that the tendons were severed and have separated, that his fingers are flexed and stiffened and useless as he has no strength or power to grasp with his fingers and his inability to use his hand will in time cause the muscles of his forearm to atrophy or shrink. The physician was unable to say whether the hand would have been restored to normal if there had been no infection. Appellee testified he had not been able to perform his customary work since the accident, and five men in the wholesale fruit and vegetable business testified that previous to the injury they had done business with appellee, observed him working regularly, but that since then they had had no business transactions with him, although they had seen him at their places of business and some observed that he could not use his right arm.

The evidence further discloses that in 1928, appellant issued the policy sued on, the application therefor being given to Charles I. Cummings, who testified that he thereafter delivered the policy to appellee and collected the preminms thereon; that on December 6,1930, he received a call over the telephone from the wife of appellee informing him that appellee had met with an accident and was in the hospital and she was notifying him so that he might in turn notify the company of the accident. Mr. Cummings thereupon telephoned the local office of appellant in Rockford and ascertained that Mr. Stone, the manager, was absent, but he talked to Mrs. Stone, who had charge of the office in the absence of her husband, and informed her that appellee had met with an accident and was at the hospital. Subsequently Cummings visited in the home of appellee, and observed his injured hand, and in March, 1931, Cummings had a conversation with Mr. Stone, in which Stone told him that within 20 days after the accident he had “sent data of the accident to the Home Office to be taken care of. ’ ’ Appellee testified that he had several conversations with Stone, and at one time he had Mr. Cummings come to Stone’s office and had Mr. Cummings write a letter to the home office, at which time Mr. Stone said: “Why, I notified them right away, as soon as you was in the hospital, when they called up.”

It is first insisted by appellant that there is no proof in this record that appellee or anyone for him gave written notice to the company within 20 days after the accident, and the case of Feder v. Midland Casualty Co., 316 Ill. 552, is relied upon in support of this contention. In that case, which was a suit to recover for an accidental drowning, it appeared that the husband of 'the beneficiary had a conversation with Nitz, the authorized agent of the company, a few days after the accident and inquired of him about collecting the insurance and was informed by the agent that the company refused to pay because the premium had not been paid. The court held that notice to Nitz was a compliance with the requirement in the policy that required notice to be given to an authorized agent, but it was not a compliance with the provisions of the policy, which was the same as in the instant case, inasmuch as the notice so given was not written. In the instant case, the evidence discloses that Mr. Stone was the local manager of appellant, with an office in Rockford; that his office was notified of the accident on the day it occurred, and the uncontradicted evidence, which was admitted without objection, is that the local manager, Mr. Stone, afterward stated to the soliciting agent of appellant, Mr. Cummings, that he, Stone, “mailed written notice of the injury to the company within 20 days,” and afterward also stated" to appellee that he, Stone, had notified the home office of the accident while appellee was in the hospital, which must have been not later than the fourth day after the accident. Neither the statute nor the policy provides who should give this notice. All that is required is that written notice be given to the association at Omaha or to any authorized agent of the Association. Appellee is now claiming the benefit of Stone’s act in giving this written notice and in our opinion, with this evidence in the record, there was no error in refusing to direct a verdict for appellant on the ground that appellee had failed to prove written notice to the company, as provided by the provisions of the policy, which is a standard provision prescribed by statute. Cahill’s Revised Statutes of Illinois 1933, ch. 73, If 469.

The policy of insurance sued on provides benefitto appellee for loss of time resulting directly and independently of all other causes, from bodily injuries sustained through purely accidental means and for loss of time on account of disease contracted during the term of this policy, respectively, subject, however, to all the provisions and limitations in said policy contained. It stated, that the monthly benefits were $75 with a maximum monthly benefit of $150. Parts A and B provide specific indemnity for loss of life, limb, etc., by reason of accidental injury. Then follows in capital letters:

“Part C. Total Accident Disability.
Seventy-Five Dollars Per Month for Life.
“If such injuries as described in the Insuring Clause, do not result in any of the above mentioned specific losses, but shall wholly and continuously disable the Insured for one day or more, and so long as the Insured lives and suffers said total loss of time, the Association will pay a monthly indemnity at the rate of Seventy-five ($75.00) Dollars.
“Part D. Partial Accident Disability.
Thirty Dollars Per Month.
“If such injuries, as described in the Insuring Clause, shall wholly and continuously disable the Insured from performing one or more important duties, the Association will pay for the period of such partial loss of time, but not exceeding three consecutive months, a monthly indemnity of Thirty ($30.00) Dollars.
“Illness Indemnities
Part H. Confining Illness
Seventy-Five Dollars Per Month for Life
“The Association will pay, for one day or more, at the rate of Seventy-five ($75.00) Dollars per month for disability resulting from disease, the cause of which originates more than thirty days after the date of this Policy, and which confines the Insured continuously within doors and requires regular visits therein by legally qualified physician; provided said disease necessitates total disability and total loss of time.
“Part I. Non-Conflicting Illness
Thirty-Seven Dollars and Fifty Cents Per Month.
“The Association will pay, for one day or more, at the rate of Thirty-seven Dollars and Fifty Cents ($37.50) per month, but not exceeding one month, for disability resulting from disease, the cause of which originates more than thirty days after the date of this policy, and which does not confine the Insured continuously within doors, but requires regular medical attention; provided said disease necessitates total disability and total loss of time.
“Part K. Covered As Sickness
All Diseases Are Covered By This Policy
“Any accidental injury, fatal or otherwise, resulting in hernia, boils, carbuncles, felons, abscesses, ulcers, infection, septicaemia, ptomaine poisoning, cancer, diabetes, fits, peritonitis, apoplexy, sunstroke, freezing, hydrophobia, sprained or lame back, shall be paid for as provided in Part H or I, anything to the contrary notwithstanding. ’ ’

It is the contention of appellant that the evidence in this case discloses that the accidental injury complained of resulted in an infection and that therefore the provisions of Part K govern and the maximnm liability of appellant would be $47.50, even though appellee is wholly and permanently disabled. This amount of $47.50 is arrived at by allowing appellee for four days’ confinement under Part H at the rate of $75 per month, or a total of $10 and a further sum of $37.50 as provided in Part I. Appellant, in this connection, also refers us to additional provision A, which provides that the policy does not cover disability or other loss sustained while the insured is not continuously under the professional care and regular attendance, at least once each week, beginning with the first treatment, of a licensed physician or surgeon.

Appellee insists that this policy indemnifies him first for loss of time resulting from an accidental injury, and second for loss of time resulting from sickness ; that Part C of the policy controls as the evidence disclosea that appellee suffered a total disability caused by an accident; that appellee’s injury did not result in infection, but that by reason of his accidental injury, infection developed, resulting in a weakened hand, which wholly and continuously disables him and causes him to suffer total loss of time; that Parts H, I and K are found in the policy under the general head “Illness Indemnities” and are not applicable to the facts as disclosed by this record.

In Order of United Commercial Travelers of America v. Edwards, 51 F. (2d) 187, the certificate sued on provided that the certificate, constitution, by-laws, articles of incorporation, together with the application, should constitute the contract of the parties and one of the constitutional provisions was that the Order should not be liable “to any person for any benefits for any death, disability or loss of time by reason of any of the following conditions, whether caused by accidental means or not, to-wit: Appendicitis, . . . poisoning, ... or any infection (unless the infection is introduced into by or through an open wound, which open wound must be caused by external, violent and accidental means and be visible to the unaided eye).” The evidence disclosed that on June-9,' 1927, the insured accidentally fell out of an automobile and struck his side or lower abdomen against the running-board ; the blow left a red and inflamed mark which disappeared by the third day. The skin was not broken. -An operation was performed the third day, and the appendix, caecum and bowel were found to be gangrenous and highly infected; and four days later he died of a blood stream infection, a general septicaemia. In holding that there was no liability under the certificate, the court said that the insured’s death was caused by an infection, that the infection was not introduced into his system through an open wound and that the clause expressly precluded any liability for death from infection whether caused by accidental means or not. Among the many cases cited and distinguished was Central Accident Ins. Co. v. Rembe, 220 Ill. 151, and in the course of its opinion the court said that the contract in many of the cases expressly provided that there should be no liability if death resulted directly or indirectly from disease, but that the courts had uniformly and correctly held that if the accident was the direct and sole cause of the disease, the accident was the proximate'cause of death. The opinion then continued: “But none of the cases decided on this principle which we have examined contains the unusual clause here involved and which apparently is designed to avoid the doctrine of proximate cause, — the restrictive phrase ‘whether caused by accidental means or not. ’ It is true that the phrase prevents recovery in many cases where an accident is the sole, proximate and only cause of death; but it is the contract which the parties made; it is clear and unambiguous and we have no alternative but to enforce it. The only reported case cited construing this unusual provision is Order of United Commercial Travelers v. Dobbs (Tex. Civ. App.), 204 S. W. 468, which is in accord with our conclusion.”

.As counsel for appellee points out, the courts have had frequent occasion to determine whether a disability was due to disease or to accident or to both, and there are many cases which announce the rule that where infection or blood poisoning is an excepted risk in an accident policy, still, if the resulting infection or blood poisoning is the effect of the accident, so as to be a mere link in the chain of causation between the accident and the disability, then the disability must be attributed to the accident and is not excepted from the risk, the theory being that the disability or death in such cases is the result of the wound and that the infection is merely an incident to the original injury. Central Accident Ins. Co. v. Rembe, supra.

In our opinion, these questions do not arise upon this record as the evidence clearly discloses that the infection which developed was attributable to the wound and the disability, even though the infection may have been a contributing factor, resulted from the wound and the injury is the proximate cause of the disabled hand, the infection' being a mere link, as expressed by many authorities, in the chain of causation between the accident and the disability. As we view the question presented by this record, however, it is not whether this injury was the proximate cause of the infection or whether the disability was a result of the infection, but after having determined that appellee sustained a disability as the result of the accidental injury and that it is compensable under the terms of the policy, the further question then arises as to the amount appellee is entitled to recover under all the provisions of the policy.

This policy says that any accidental injury, fatal or otherwise, resulting in hernia, boils, infection, cancer, diabetes, lame back or a dozen other ailments shall be paid for as provided in paragraphs H and I. Paragraphs H and I appear under the general heading “Illness Indemnities” and paragraph K therefore classifies an accidental injury resulting in any of these enumerated diseases as a disability due to illness and provides the amount the insured is entitled to recover. As said by the Circuit Court of Appeals in Order of United Commercial Travelers v. Edwards, supra, this construction narrows the protection afforded, but the language is clear and we have no other alternative than to give it effect.

The instructions tendered hy appellant and refused by the court were to the effect that if from the evidence the jury found that the bodily injuries received by appellee resulted in an infection, then plaintiff’s recovery must be under Parts H and I of the policy. In our opinion it was error for the court to refuse these instructions and for that error the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Frank V. Moore, Defendant in Error, v. Charles Hahn and Rose Hahn, Plaintiffs in Error.
    Gen. No. 8,708.

      Opinion filed February 19, 1934.
    Heard in this court at the October term, 1933.
    Snapp, Heise & Snapp, for plaintiffs in error.
    McGilvray, Eames, Vaughan & Tilley, John H. Savage and James G. Holbrook, for defendant in error.
   Mr. Justice Dove

delivered the opinion of the court.

Defendant in error, plaintiff below, brought his suit in assumpsit against- the plaintiffs in error who were defendants below and by his declaration as amended alleged that the Chicago Trust Company, as trustee and not personally, on September 2, 1926, made its certain promissory note and thereby promised to pay, on or before five years after the date thereof, to the bearer, or his order, the sum of $4,250, for value received, with interest at the rate of six per cent until maturity, and after maturity until paid at the rate of seven per cent per annum; that the defendant in error is and was, at the time the note became due, the bearer thereof; that the plaintiffs in error did, on April 6, 1928, for a valuable consideration, guarantee the payment of said sum of money and promised the defendant in error to pay him according to the tenor and effect of the said note, if the Chicago Trust Company, as trustee and not personally, should not pay the same at maturity. The amended declaration then alleged that the Chicago Trust Company, as trustee, had failed to pay the note upon demand therefor, although the day of payment in said note specified had elapsed. The only difference between the original and the amended declaration is that the original declaration alleged that the guaranty was made at the time the note was made and that the defendants guaranteed to pay the note according to the tenor and effect thereof, while the amended declaration alleges the date of the guaranty to be April 6, 1928, and that the defendants 'guaranteed to pay the note at maturity. Attached to the original and amended declarations was a copy of the note bearing the guaranty sued on. This instrument is as follows, viz.:

“Principal Note
“$4,250.00 Chicago, Illinois, Sept. 2, A. D. 1926. “On or before Five (5) year(s) after date for value received, Chicago Trust Company, a corporation of the State of Illinois, not personally but as Trustee under the provisions of a deed or deeds in trust duly recorded and delivered to said company in pursuance of a Trust agreement dated May 25, 1926 and known as Trust Number 1642, hereby promises out of that portion of Trust Estate subject to said Trust Agreement specifically described in the Trust Deed given to secure the payment hereof, to pay to bearer, in the manner hereinafter and in said Trust Deed provided, the principal sum of Four Thousand Two Hundred Fifty & 00/100 Dollars, in gold coin of the United States of America of the present standard of weight and fineness, with interest thereon payable in the same manner as said principal sum until the maturity hereof at the rate of six (6) per centum per annum, payable in like gold coin, on the 2nd day of March and of September in each year until maturity, and with interest after maturity until paid at the rate of seven (7) per cent per annum; which said several installments of interest until the maturity of said principal sum are further evidenced by interest notes or coupons of even date herewith with interest after due at the rate of seven (7) per cent per annum, payable in like gold coin, and the said payments of both principal and interest are to be made at the office of Chicago Trust Company in the City of Chicago,
“The payment of this note is secured by Trust Deed, bearing even date herewith, to Boy K. Thomas, Trustee, conveying certain real estate in Du Page County, Illinois. .It is agreed that this Note may become due and payable in its entirety in case of default in the payment of any installment of interest or principal or of any default in performance of any of the covenants of said Trust Deed, all as provided, and subject to the conditions set forth, in said Trust Deed.
“This note is executed by Chicago Trust Company, not personally, but as Trustee as aforesaid in the exercise of the power and authority conferred upon and vested in it as such Trustee, and is payable only out of the property specifically described in said Trust Deed securing the payment hereof, by the enforcement of the provisions contained in said Trust Deed. No personal liability shall be asserted or be enforcible against the promissor or any person interested beneficially or otherwise in said property specifically described in said Trust Deed given to secure the payment hereof, or in the property or funds at any time subject to said Trust Agreement, because or in respect of this note or the making, issue or transfer thereof, all such liability, if any, being expressly waived by each taker and holder hereof, and each original and successive holder of this note accepts the same upon the express condition that no duty shall rest upon the undersigned to sequester the rents, issues and profits arising from the property described in said Trust Deed, or the proceeds arising from the sale or other disposition thereof, but that in case of default in the payment of this note or of any installment of interest, the sole remedy of the holder hereof or of any of the interest coupons hereto attached shall be by foreclosure of the said Trust Deed given to secure the indebtedness evidenced by this principal note and the interest notes hereto attached, in accordance with the terms and provisions in said Trust Deed set forth.
Chicago Trust Company “As Trustee as aforesaid and not personally. “Principal Note Number One.
This is the one principal note described in the within mentioned Trust Deed. ‘ ‘ Roy K. Thomas, Trustee. ’ ’ C. H. Fox Vice President. >-Attest: W. T. Anderson, Secretary.
On the back of the foregoing instrument appears the following:
“We hereby guarantee the payment of the within Note when due with interest thereon, thereby waiving all Notice of Protest, Dishonor, Presentment, etc. Demand notice, notice of protest and protest is hereby waived and payment guaranteed.
Signed: Charles Hahn (seal)
Rose Hahn (seal)
“Sept. 30, A. D. 1926. Paid on principal hereon, $250.00 to Charles Hahn.
“A. Paul Peterson.”

Appropriate verified pleas were filed and issues joined so that the question presented for determination to the trial court was whether the guaranty was upon the back of this instrument when defendant in error became the owner thereof, and if so, what is the legal liability imposed thereby. A jury was waived and the cause heard, by the court, resulting in a judgment in favor of the plaintiff below for $4,575 and the record is brought to this court for review.

It appears from the evidence that prior to September 2, 1926, plaintiffs in error owned a 24-acre tract of land which they sold for $8,000, receiving $4,000 in cash and the note heretofore referred to. This note was erroneously drawn for $4,250 instead of $4,000, but this error was corrected by it being credited with $250 as shown. After the execution of this note in 1926, it was taken by plaintiffs in error and placed in their safety deposit box in Lemont, Illinois. On February 29, 1928, the records of the Lemont hospital disclose that Mrs. Hahn became a patient therein and that she was discharged therefrom on March 3, 1928. According to her testimony, on account of her illness, she was unable to leave her home and did not go out of her house from March 3, 1928, until April 4, 1928. Mrs. Tivy was a close friend of Mrs. Hahn and had negotiated the sale of the 24-acre tract of land and Mrs. Tivy, at the suggestion of Mrs. Hahn, spoke to Mr. Daniels, the vice president of the Orland State Bank, of Mrs. Hahn’s desire to sell this note. Mr. Daniels in turn interested George Gee, who is the son-in-law of defendant in error, Moore, in its purchase, and on April 5, 1928, Gee purchased it from plaintiffs in error for defendant in error for $3,628.50.

As to what transpired when Mr. Gee received the note and delivered his check in payment therefor, and whether there had been a prior meeting of the parties, the evidence is in hopeless conflict, Mr. Gee testified that he was cashier of the Orland State Bank, and had been for 10 years; that acting for defendant in error, he went with Mr. Daniels to the home of plaintiffs in error a month or six weeks prior to April 5, 1928, for the purpose of. negotiating for the purchase of the note; that the note was there and he told plaintiffs in error that the mortgage was not sufficient security for the payment of the note and that if they purchased it, there would have to be a guaranty, and being- asked what a guaranty meant, he told them that it meant the same thing as a man signing a note, when it came due, if it was not paid they would have to pay it, whereupon plaintiffs in error said to wait a while, that they might get the money some other way. Gee, according to his testimony, wrote, at this first visit, upon the back of the note these words: “We hereby guarantee the payment of the within note when due with interest thereon, thereby waiving all notice of protest, dishonor, presentment, etc.” He further testified that when he returned on April 5th or 6th, he had his bank stamp with him, having been advised that plaintiffs in error were ready to accept his offer and at that time, before plaintiffs in error placed their names on the lines which he had previously drawn on the back of the note, he stamped thereon the words, “Demand, Notice, Notice of Protest and Protest is hereby waived and payment guaranteed. ’ ’ His explanation for taking this stamp with him at that time was because he placed it upon all notes which he purchased and knew it contained the necessary legal words to bind plaintiffs in error as guarantors. He further testified that Mrs. Tivy was at the home of plaintiffs in error but not in the room where the transaction occurred and that after plaintiffs in error had signed their names, he accepted the note and they accepted his check in payment therefor.

Magnus S. Strand testified that he was cashier of the Lemont National Bank until May 'l, 1931, when he became assistant cashier of the Orland State Bank. He was well acquainted with plaintiffs in error, as they did their banking business with the Lemont National Bank, and the check of Mr. Gee for this note was deposited by them in that bank. According to his testimony, he met Mrs. Hahn about two weeks before this check was deposited and at that time had a conversation with her on the street, at which time she had the note, and told him about her previous negotiations with Gee. She stated to this witness that she had offered the note for sale to Gee, but she didn’t think the amount Gee offered for it was sufficient, and that Gee wanted her to guarantee the payment of the note and showed him the note with the written unsigned guaranty thereon. He further testified that in response to her inquiry he told her that if she did sign the guaranty, she would have to pay it if it was not paid by the principal.

Frank E. Powell testified that in 1928 he was assistant cashier of the Orland State Bank, being succeeded by Mr. Strand, and that immediately after Gee had purchased this note in April, 1928, he brought it to the bank, showed it to this witness and at that time the stamped and written indorsements appeared thereon.

Mrs. Hahn testified that the first time she was out of her house after returning from the hospital on March 4, 1928, was on April 4th; that on that day she went with Mrs. Tivy, who had informed her that Mr. Gee was coming to her home the next day to purchase the note, to the safety box and brought the note home with her; that from the time she received this note in 1926 until April 4, 1928, it had never been taken out of the safety box. She contradicts in toto everything testified to by Mr. Strand and denies that Mr. Gee ever called at her home except once, and that was on April 5th when he purchased the note. She insists that Mrs. Tivy was present in the room and that nothing was ever said about a guaranty, nor was any request ever made of her or her husband to guarantee the payment of the note, and that when she signed it there were no lines written under their names, the words “Seals” did not appear thereon and nothing was written or stamped above their signatures. She further testified that she asked Mr. Gee why he wanted them to sign their names on the back of the instrument, and Mr. Gee replied that it was so he would know from whom he had bought it. As to what transpired at the time the note was purchased the testimony of Mrs. Hahn is corroborated by Mr. Hahn and Mrs. Tivy.

Lillian Benson testified that on March 6 or 7, 1928, she went to the home of Mrs. Hahn, being employed to attend her as a nurse, and remained there until April 8th. April 4th or 5th, according to her testimony, was the first time Mrs. Hahn was out of the house after Miss Benson came; that on April 4th or 5th, Mrs. Hahn went with Mr. Hahn and Mrs. Tivy (then Mrs. Vandry) to get the note from the safety box; that on the following day a gentleman called and a transaction about the note occurred, as she brought ink and a pen to them in the dining room, but she did not hear the conversation, as the door was closed.

Dr. Ludwig testified that Mrs. Hahn was at his office in Lemont on March 10th, 13th and 16th, and also on April 1st and 5th, and that he visited her at her home on March 22nd and 23rd, when she was threatened with pneumonia. Later Dr. Ludwig was recalled as a witness and stated that he had testified from the entries in his day book and could not say positively whether Mrs. Hahn had been at his office on these days or not. Mrs. Hahn testified she had been operated upon on March 5, 1928; subsequently she testified that she had been confused about this date and the operation she referred to had been performed about that time the previous year. Mrs. Hahn also testified that after the maturity of this note she saw it and examined it at the Orland State Bank, and at that time no written or stamped indorsements appeared thereon. Just prior to the time the note became due, it was sent to the Continental-Illinois National Bank and Trust Company of Chicago for collection. On September 7th or 8th, Fred D. Leitz, an official of that bank, saw this note there before it had been returned to the Orland State Bank, and he testified in this cause that it then bore the written and stamped indorsements as shown.

Whether this guaranty was upon this note at the time plaintiffs in error indorsed their names thereon was solely a question of fact. The original instrument has been certified to this court and we have examined it in the light of the testimony, including that of Herbert J. Walter, a handwriting expert, called as a witness by defendant in error. If the version of this transaction as detailed by plaintiffs in error and Mrs. Tivy is true, the written and stamped guaranty, the signature lines and “Seals” were placed thereon by defendant in error or by Gee in the period beginning shortly after the maturity of the note and ending at the time of the hearing. The appearance of the instrument and the testimony of Mr. Walter discloses that in the guaranty and in the signatures, there is no variation in color and fading. Other matters which indicate that the signature lines and “Seals” were first impressed before the names of plaintiffs in error were written have been called to our attention, and taking all the evidence into consideration, this court feels that the conclusion arrived at by the trial court is warranted by the evidence. The trial court had many superior advantages over us in determining the truth. He specifically found that plaintiffs in error executed the guaranty sued on for a valuable consideration, and that defendant in error relied upon that guaranty and demanded its execution as a condition precedent to his purchase of the note. The evidence sustains the finding of the court, and we are unable to say that the judgment is against the manifest weight of the evidence.

It is next insisted by plaintiffs in error that.no cause of action had arisen when this suit was instituted as this is a proceeding by an assignee to recover on a chose in action and the declaration fails to allege on oath the assignment, the actual ownership of the assignee and how and when he acquired title. Counsel for plaintiffs in error misapprehended the allegations of the declaration. It does not allege that defendant in error as an assignee of a chose in action was bringing suit thereon, but according to the allegations of the declaration plaintiffs in error executed for a valuable consideration a contract of guaranty. Defendant in error received this contract of guaranty and paid a consideration therefor. This suit is not between an assignee of that contract and the makers thereof, but between the original parties thereto. This is not a proceeding to recover on the note, but to recover according to the contract of guaranty. This contract, in our opinion, was an unconditional, absolute promise to pay, on September 2, 1931, the maturity of the instrument, and payment having been demanded, as the evidence discloses, and refused, the obligation of the plaintiffs in error to pay arose immediately upon the nonpayment of this note at maturity and a cause of action had arisen on September 5, 1931, when this suit was instituted. Taussig v. Reid, 145 Ill. 488; Holm v. Jamieson, 173 Ill. 295.

It is next contended that the evidence does not disclose any consideration passing from defendant in error to plaintiffs in error for this guaranty and that the court erred in refusing to permit Mrs. Hahn to answer the following question on direct examination: Did you ever receive any consideration for guaranteeing that note? The court properly sustained an objection to this question. It called for a conclusion, one of the ultimate facts which the court would finally be called upon to determine after hearing all the conversations and transactions detailed by the several witnesses who were called to testify. Lucas v. Beebe, 88 Ill. 427. It is true that the check delivered to plaintiffs in error at the time Mr. Gee received the instrument bearing their guaranty was payable to Mr. Hahn, but no objection was made at that time by Mrs. Hahn and she cannot be heard to make any objection now. Furthermore, the guaranty was under seal and the evidence discloses that the proceeds of this check were used to pay medical and hospital expenses incurred by reason of Mrs. Hahn’s illness.

Finding no reversible error in this record, the judgment of the trial court is affirmed.

Judgment affirmed,


text:
    Sinclair Refining Company, Appellant, v. Ray Mann, Appellee.
    Gen. No. 8,782.
    Opinion filed March 12, 1934.
    Heard in this court at the February term, 1934.
    Smith & Reckhow and Ward, Gallagher & Rabold, for appellant; A. Phillip Smith and Frederick R. Rabold, of counsel.
    Welsh & Welsh, for appellee; C. K. Welsh, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

The complainant below, appellant here, filed its bill to establish a lien under section 23 of the Mechanics’ Liens Act, Cahill’s St. ch. 82, If 23. The defendant, appellee herein, answered and the cause was referred to the master, who recommended a decree in accordance with the prayer of the bill. The chancellor sustained exceptions to this report and rendered a decree dismissing the bill for want of equity and the record is brought to this court for review.

There is no dispute as to the facts. Appellee was a contractor and had entered into a contract' with the department of public works and buildings to construct and pave section 135 of Route 173 in Lake county. Subsequently, appellee entered into a contract with Ray Madden, doing business as the Madden Construetion Company, to do certain grading which was necessary to be done in the construction of said highway. Thereupon, Madden, the subcontractor, entered into a contract with appellant to furnish him oil and gasoline to be used by him in the performance of his contract with appellee. These materials, to the value of $1,864.09, which were used and consumed in the construction of said work, were so furnished by Madden and there remained due and unpaid appellant therefor at the time of the hearing the sum of $1,574.54. It further appeared that the amount due appellee in the hands of the State officials under his contract exceeds the amount so due appellant.

Section 23 of chapter 82, Cahill’s Illinois Revised Statutes, If 23, in force at the" time of these transactions, provided, among other things, that any person who shall furnish material, apparatus, fixtures, machinery or labor to any contractor having a contract for public improvement for the State, may have a lien on the money, bonds or warrants due or about to become due such contractor under the contract. It is the contention of appellant that the provisions of this statute are broad enough to include appellant who furnished lienable materials to Madden, the subcontractor. Appellee, on the other hand, insists that the statute expressly restricts the right to a lien to persons furnishing material directly to the principal contractor, and that only a subcontractor can have a lien under this section of the statute, and that it does not include appellant who furnished materials to a subcontractor.

The first paragraph of this same section 23 provides that any person who shall furnish material, apparatus, fixtures, machinery or labor to any contractor having a contract for public improvement for any county, township, school district, city or municipality in this State shall have a lien on the money, bonds or warrants due or to become due such contractor under such contract. The construction of this section had the attention of our Supreme Court recently in the case of Alexander Lumber Co. v. Coberg, 356 Ill. 49. In that case it appeared that contracts for the construction and erection of two school buildings had been entered into by and between the board of education of School District No. 46 in DuPage county and John C. Coberg. Subsequently Coberg sublet a portion thereof to one McDonald and he in turn contracted with the lumber company for certain materials which went into the construction of the buildings and the lumber company sought to enforce a lien for the balance due on its contract. In sustaining the decree of the circuit court, which denied a lien to the lumber company and dismissed its bill for want of equity, the Supreme Court in its opinion filed February 23, 1934, said: “By reference to the relevant part of section 23, we find that the legislature has specifically mentioned only three parties: First, the municipality; Second, the

contractor; and Third, the ‘person who shall furnish material, apparatus, fixtures, machinery or labor to any contractor having a contract for public improvement, ’ etc. Nowhere does a pertinent part of the section contain any language including materialmen, such as were the appellees here, who furnished materials to a sub-contractor. The language used by the legislature is plain, specific, and not alhinclusive. Under the authorities cited, and the well known rule that the expression of one thing is the exclusion of all others, this court has no right to read into this section words not found therein. ’ ’

The chancellor in the instant case likewise construed the pertinent provisions of section 23 as not sufficient to embrace appellant which furnished oil and gasoline to a subcontractor of appellee. The Alexander Lumber Co. case, supra, is decisive of the only question presented for review by this record, and the decree dismissing appellant’s bill for want of equity is in harmony therewith and is therefore affirmed.

Decree affirmed.


author: Mr. Presiding Justice Sullivan

text:
    Economy Fuse and Manufacturing Company, Plaintiff in Error, v. Standard Electric Manufacturing Company, Defendant in Error.
    Gen. No. 36,744.

      Opinion filed March 6, 1934.
    Heard in the second division of this court for the first district at the June term, 1933.
    Gardner, Foote, Morrow & Merrick, for plaintiff in error; Walter M. Fowler and Robert L. Elliott, Jr., of counsel.
    Harry D. Irwin, for defendant in error; Elmer F. Deneke, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

Plaintiff brought an action to recover for goods and merchandise delivered to defendant, Standard Electric Manufacturing Company, during April, 1932, pursuant to a contract entered into by the parties March 6, 1931. On a trial by the court without a jury there was a finding and judgment in favor of defendant which plaintiff seeks to reverse by this writ of error. No question is raised on the pleadings.

On the trial it was stipulated that defendant received from plaintiff $2,798.31 worth of merchandise during April, 1932; that on or about May 10 or 11, 1932, defendant forwarded by mail its check drawn on the Citizens State Bank of Chicago (hereinafter referred to as the bank) for $2,582.96, which was received by plaintiff May 13, 1932; that the check was remitted as payment in full of the above merchandise, less certain deductions noted on the back thereof aggregating $215.35; that the bank was closed by the auditor of public accounts May 25, 1932; that the circuit court confirmed the appointment of the auditor’s receiver, who has since been in charge of the affairs of the bank; and that from the time it drew the check until the bank closed defendant had on deposit, subject to check, more than enough to cover the amount of same.

In addition to the stipulation the salient facts, as disclosed by the evidence, are that plaintiff did not present the check to the bank for payment prior to its closing; that May 2, 1932, defendant delivered to plaintiff’s driver for return to plaintiff a number of cartons of merchandise (more than 7,000 electric switch plates, approximately 6 inches by 2 inches, composed of a material somewhat like bakelite); that the driver receipted a bill of lading for them and delivered them to plaintiff’s Chicago plant, from which they were sent to its plant at Palatine, Illinois, where they had been manufactured; that when plaintiff received the check May 13, 1932, it was accompanied by a debit memorandum indicating the number, description and price of the plates returned as defective May 2, 1932, and for which a credit of $159.49 was claimed; that this amount, plus an allowed credit of $3.15 and claimed discount of $52.71, comprised the $215.35 deduction demanded from the full amount due; that upon receipt of the check and accompanying debit memorandum plaintiff directed its employees at its Palatine plant to check the returned plates against the debit memorandum to determine whether the deduction for defective goods shown on the check and the debit memorandum was just and whether the check should be accepted; and that its investigation was not completed until May 31, 1932, several days after the bank closed.

The face of defendant’s check received in evidence is in the usual form, but there appeared on the back thereof the following:

“The endorsement of this check constitutes a receipt in full of the following invoices.
Date Amount
April Account $2,798.31
Less 3150 #1802 unpacked-$1.00 M 3.15
Less 2% Discount Less D/M 5/2 Total deductions Amt. of check
$ 52.71
159.49 215.35
2,582.96 $2,798.31”

Plaintiff contends that the provision of the Negotiable Instruments Act, Cahill’s St. ch. 98, that a check must be presented for payment within a reasonable time after its issue can have no application to the instrument involved here; that the purported check was not a negotiable instrument within the contemplation of the act; and that it was not only conditional but was conditionally delivered, and never accepted by plaintiff.

Defendant’s theory is that plaintiff retained the check. sent by it in payment of the merchandise an unreasonable length of time; that plaintiff’s failure to present the check for payment within a reasonable time after its delivery, and before the bank was closed, discharged defendant thereon and constituted a payment of the goods to the extent of the loss caused by such unreasonable delay, which loss defendant claims is the entire amount of the check. •

In our opinion the determination of the question as to whether the purported check is a negotiable instrument within the purview of the Negotiable Instruments Act is controlling in this cause. The sections of the act (Cahill’s 1933 Ill. Rev. St. ch. 98) pertinent and material to this proceeding are as follows:

“Par. 21. (Section 1.) An instrument payable in money, to be negotiated, must conform to the following requirements:
“2. Must contain an unconditional promise or order to pay a sum certain in money.
“3. Must be payable on demand or at a fixed or determinable future time.”
“Par. 24. (Section 4.) An instrument is payable at a determinable future time, within the meaning of this Act, which is expressed to be payable:
“1. At a fixed period after date or sight; or “2. On or before a fixfed or determinable future time specified therein; or
“3. On or at a fixed period after the occurrence of a specified event, which is certain to happen, though the time of happening be uncertain.
“An instrument payable upon a contingency is not negotiable, and the happening of the event does not cure the defect.”
“Par. 36. (Section 16.) Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto. As between immediate parties, . . . the delivery, in order to be effectual, must be made either by or under the authority of the party maldng, . . . and in such case the delivery may be shown to have been conditional or for a special purpose only, and not for the purpose of transferring the property in the instrument. . . . ”
“Par. 147. (Section 125.) A bill of exchange is an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable future time, a sum certain in money to order or to bearer.”
“Par. 206. (Section 184.) A check is a bill of exchange drawn on a bank payable on demand. . . .” Beading the last two paragraphs together, a check is defined as an unconditional order in writing drawn on a bank to pay on demand a certain sum in money to order or to bearer.
“Par. 207. (Section 185.) A check must be presented for payment within a reasonable time after its issue, *and notice of dishonor given to the drawer as provided for in the case of bills of exchange,* or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay.”

That the trial court predicated his finding and judgment on the theory that the instrument in question was negotiable and conformed to the provisions of the act is evidenced by the following statement made in announcing his finding: . ;

“I can’t get away fr.om the .proposition that the plaintiff in this suit held this check an unreasonable length of time. I prefer to predicate my conclusion on that fact. There is no substantial evidence here, if there was it might change my opinion if the plaintiff had brought in evidence here to show me that it required . . . twelve days, in order to ascertain whether or not this credit was correct, I might be inclined to hold with the plaintiff; but in my opinion the plaintiff held this check an unreasonable length of time. ’ ’

In order that an instrument shall be negotiable it must amount to an independent promise to pay, at all events at a certain time, to a definite person a definite amount of money without condition. The law is settled, not only in this State but in most jurisdictions, that in construing an instrument such as the one here any memorandum following the signature or on the back or margin thereof, placed there prior to or contemporaneously with its execution, must be treated as part of it the same as if it were in the body of the instrument. (Costelo v. Crowell, 127 Mass. 293; Scholbe v. Schuchardt, 292 Ill. 529; Van Zandt v. Hopkins, 151 Ill. 248.) The purport of the instrument is not only to be collected from its “four corners,” but from its “eight corners,” and a memorandum on the back affecting its operation must be regarded the same as if written on its face. (Daniels on Negotiable Instruments, vol. 1, sec. 166.) It is conceded that the statements and figures appearing on the back of defendant’s check were there when it was signed. When defendant returned the' merchandise to plaintiff’s driver May 2, 1932, no itemization of the goods returned or statement of any claim in connection therewith was given to plaintiff or its driver. It was not until May 13th that the check for a reduced amount bearing on its back the legend “the endorsement of this check constitutes a receipt in full of the following invoices,” and the statement heretofore set forth as to the claimed deductions was received.

While it is a generally recognized rule that an instrument absolute on its face cannot be shown by parol to be conditional, yet evidence that the instrument was not intended to take effect as a valid obligation until the occurrence of some future contingency is usually held admissible between the original parties. Such evidence, it is held, does not contradict the terms of the writing or vary its legal import but tends to show it was never delivered as a present contract, and the delivery upon condition does not make it operative until the condition has been complied with. (Bell v. McDonald, 308 Ill. 329.) In discussing this rule the following language was used in Jordan v. Davis, 108 Ill. 336:

“Delivery of a written contract is indispensable to its binding effect, and such delivery is not conclusively proved by showing the placing of the paper by the alleged contracting party in the hands of the other. Delivery is a question of intent, and it depends whether the parties, at the time, meant it to be a delivery to take effect presently.” It conclusively appears in the instant case that the delivery of the check was not intended to take effect presently. Defendant created the situation that made the instrument payable contingently and its delivery conditional.

Defendant’s bookkeeper testified, and it is undisputed, that the purpose of forwarding* the itemized debit memorandum with the remittance was to have plaintiff check the goods returned as defective against it to ascertain if defendant’s deductions from the amount of the invoices were correct. As was intended, plaintiff ordered an investigation of the returned plates immediately. It appeared from plaintiff’s evidence that its plant at Palatine was being operated short-handed and its investigation progressed as employees could be spared from their regular duties; that when it was finished May 31, 1932, plaintiff insisted defendant was not entitled to the full allowance claimed; and that it withheld acceptance of the check pending* the result of its inquiry. The bank had been closed before plaintiff concluded its investigation and it was not until then that it was obliged to elect whether it would accept or repudiate the check. From the day it received the check until the bank was taken over by the State auditor, we are satisfied that its right to retain the check without presentment for payment was unquestionable.

We have heretofore set forth the sections of the Negotiable Instruments Act designating the essential elements of such instruments. We have also shown that under the recognized law of this State the memorandum on the back affecting the operation of defendant’s check must be regarded as if written on its face. It is readily apparent that the check proffered did not conform to the requirements of sections 1, 4, 16 or 184 of the act. Inasmuch as defendant imposed the condition on the check that if accepted it must be as payment in full of the indebtedness, with the consequent allowance of the claimed deductions, the instrument was obviously not an unconditional order to pay.

Plaintiff was precluded from presently demanding the payment of the check unless it agreed to the conditions. It has been clearly shown that the check was not delivered to be presently effective, inasmuch as defendant intended that plaintiff should perform a collateral act in investigating the claim for the allowance before it was incumbent on it to either accept or repudiate the check. The proffer of the check resolved itself into nothing more than an offer to settle the account if plaintiff were willing to accede to the conditions attached to the offer. It has been expressly held that the payee of a check has no right to strike out or erase such conditions without authority of the maker, and if he does and cashes it he accepts the conditions and is bound to the same extent as if he had cashed it without striking them out. (In re Estate of Cunningham, 311 Ill. 311.) Plaintiff never accepted the offer and no property was transferred by the instrument. In fact no contract on a negotiable instrument was entered into by the parties within the meaning of the statute. There was nothing more than a conditional delivery of the check and the conditions of the delivery were never complied with.

Although an essential requirement of a check under the act is that it must be- payable on demand, the instrument here was shorn of that element by its delivery upon the contingency that after an investigation plaintiff might allow the deductions and accept the check as' full payment. Neither can it be seriously urged that it was payable at a fixed or determinable future time. It might well have been anticipated that plaintiff’s investigation of the returned goods would not justify the allowance of the deductions claimed on the check and that it would not be accepted at all. That, in fact, is exactly what happened.

The conclusion is inescapable that the remittance to plaintiff was neither a check nor a negotiable instrument of any kind within the contemplation of the act, and in our opinion plaintiff’s contention that section 185, providing that “a check must be presented for payment within a reasonable time after its issue,” applies only to checks within the meaning of the act and is not applicable to the instrument involved here is meritorious.

It is not contended by defendant that plaintiff ever accepted the check, but it does insist that the law will impute an intention to accept by reason of its retention for an unreasonable time without presentation for payment. It is sufficient answer to say that the circumstances under which it was retained fully justified plaintiff’s action in that regard.

The cases cited by defendant are readily distinguishable from the case at bar and in none of them are the facts similar to the facts here. It cites Seidman v. Chicago Eye Shield Co., 267 Ill. App. 77; Day-Luellwits Lumber Co. v. Serrell, 177 Ill. App. 30; Bloomquist v. Johnson, 107 Ill. App. 154; Kraetsch v. City of Chicago, 198 Ill. App. 395; Bicknell v. Knollin, 207 Ill. App. 408; Canton Union Coal Co. v. Parlin & Orendorff Co., 215 Ill. 244; and Kilpatrick v. Home Bldg. & Loan Ass’n, 119 Pa. St. 30, in support of its last mentioned contention.

In the Seidman case there was an express acceptance of the check coupled, however, with an attempt to repudiate the condition upon which it was given.

In the Serrell case it was not the debtor’s check that was sent with the statement of account but the check of a third party, and the court specifically confined its holding to such remittances as a bank draft, a cashier’s check or a check of some third person, and not that of the debtor when it said, at page 37:

“Therefore, while it may well be that some affirmative use of the debtor’s check or draft may be necessary to bind the creditor, the mere neglect or refusal promptly to return the check of a third party, and thus place the debtor in statu quo, might with equal reason be held to foreclose such a creditor from subsequent action. ’ ’

In the Bloomquist case, while the check was originally returned it was later taken back by the creditor. The court held that his unexplained retention of the check after taking it back constituted an express acceptance.

In the Kraetsch case a cashier’s check was given in payment of a saloon license. After accepting the check it was held pending investigation of the application for the license. The bank on which it was drawn failed while it was being so held. This was a check of a third party and the court held that it had been expressly accepted by the city.

In the Bicknell case the check was actually cashed.

In the Canton Coal Company case the check was collected on the day of its receipt.

In the Kilpatrick case the check was expressly accepted by the building and loan association through its authorized officers and representatives.

None of these cases is applicable to the issue presented here. They all involved either express acceptances of the checks or the checks of third parties. No case has been cited, and we have found none, that holds that the mere retention of a conditional check conditionally delivered, pending an investigation of the account, amounted to an acceptance of the check.

The form of remittance was chosen by defendant. It imposed its own conditions on the instrument and intended to and did place on plaintiff the obligation of investigating the correctness of its claimed deductions. It alone is responsible for its present predicament. We are constrained to hold that the trial court erred in finding that the purported check was a negotiable instrument and, as such, subject to the provision that there Was an unreasonable delay by plaintiff in presenting it for payment or repudiating it.

In its statement of claim plaintiff conceded that defendant’s claim for the allowance of $3.15 appearing on the back of the check was correct, but asserted that as a result of its investigation defendant was entitled only to an allowance of $144.99 on the merchandise returned instead of $159.49 as claimed on the check and debit memorandum. We believe, however, from an examination of all the evidence, that defendant’s right to the deduction of $159.49 for defective merchandise returned was established. It is immaterial as affecting the character of the check whether plaintiff’s investigation disclosed that defendant’s claimed deduc-tion was correct or not. Its right under the law to make the investigation could not possibly be affected by the result of same. Although plaintiff alleged that defendant was not entitled to the full deduction claimed, its evidence failed to substantiate that allegation.

If defendant’s proffered check had been a valid negotiable instrument we would be disposed to hold that it was entitled to the $52.71 discount indicated on the check because of the agreement and course of dealing between the parties whereby on many former occasions the discount had been allowed on remittances received as late as the 14th of the month, but in view of the nature of its remittance it is not entitled to the discount at this time.

Many other points have been urged and argued, but in the view we take of this cause it is unnecessary to discuss them.

For the reasons indicated the judgment of the municipal court is reversed and judgment will be entered here in favor of plaintiff for $2,635.67.

Reversed and judgment entered here with a finding of facts.

Gridley and Scanlan, JJ., concur.

Finding of facts: We find as ultimate facts that plaintiff delivered $2,798.31 worth of merchandise to defendant during April, 1932; that defendant has paid nothing on account but is entitled to the following credits: $159.49 for defective merchandise it returned arid for which it was entitled to an allowance; $3.15 which it had been overcharged; and that defendant is indebted to plaintiff in the net sum of $2,635.67.