author: Mr. Presiding Justice Wolfe

text:
    Edna Welte, Administratrix of the Estate of Henry A. Welte, Deceased, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 9,526.
    Heard in this court at the February term, 1940.
    Opinion filed April 26, 1940.
    Early, Carpenter & Early, of Rockford, for appellant.
    John J. Faissler, of Rockford, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

Edna Welte, as administratrix of the estate of Henry A. Welte brought a suit in the circuit court of Winnebago county against the defendant, the Metropolitan Life Insurance Company, on two life insurance policies providing for double indemnity for death caused solely through external, violent and accidental means.

The complaint alleged the issuance of the policies and compliance with all of the requirements thereunder, and then continues with paragraph 6, which is as follows: ‘ ‘ On or about December 15, 1937, and after the date of said policies, said Henry A. Welte, then being more than fifteen (15) years old and less than seventy (70) years old, accidentally slipped and fell and thereby, solely through external, violent and accidental means sustained bodily injuries, said injuries being a rupture of a duodenal ulcer. Because of said accidental injuries, it thereupon became necessary for said insured to undergo an operation for said ruptured ulcer, and as a direct result of said operation, post operative bronchial pneumonia set in and as a direct result of said pneumonia said Henry A. Welte died and that the said death of said insured, Henry A. Welte, resulted directly and independently of all other causes from said bodily injuries received solely through external, violent and accidental means and was not contributed to directly or indirectly or wholly or partially by disease, and that said death of said Henry A. Welte occurred within ninety (90) days of the date of said bodily injuries and on, to-wit: December 26, 1937.” Then follows the statement of the damage to the plaintiff, etc.

The defendants entered a motion to strike said complaints. The first and second assignments are, that it fails to state a cause of action. Third, “to strike said Paragraph six of said complaint, on the grounds that it shows on its face that the death aforesaid mentioned in said complaint, was caused or contributed to directly or indirectly, or wholly or partially by disease, and, therefore, states no cause of action.” The court overruled the motion to strike and entered judgment in favor of the plaintiff for $900. It is from the overruling of this motion and entering judgment for plaintiff that the appeal is prosecuted.

The appellee, in her argument states that the motion to strike admitted the truth of paragraph 6. The appellant agrees that the law is that a motion to strike admits facts the same as our old demurrer at common law, and all facts well pleaded, to be true, but does not admit the conclusion of the pleaders. This is -certainly the law relative to the motion to strike, and the motion in this case admitted the facts well pleaded, but not the conclusions therein. It will be observed that the facts, as alleged in the complaint, material to the questions involved in this appeal, are that the insured, Henry A. Welte, accidentally slipped and fell and sustained bodily injury, the injury being a rupture to a duodenal ulcer; that the insured had to undergo an operation for said ruptured ulcer, and as a result of the operation, the insured developed bronchial pneumonia from which he died. It is insisted by the appellant that this complaint shows on its face that the deceased, at the time the insured fell and injured himself, was suffering from a duodenal ulcer; therefore, his death did not result directly and independently of all other causes, from said bodily injury received solely through external, violent and accidental means, but was contributed directly or indirectly, or wholly or partially by disease.

The appellee has cited three cases which tend to sustain her contention that an accident which caused an injury to a diseased organ, in the body of the insured which later caused death, was held to be a direct and proximate result of the accident. In the case of Rebenstorf v. Metropolitan Life Ins. Co., 299 App. 71, the insured was afflicted with gall bladder and heart trouble. He was in an automobile accident and injured. Later, it became necessary for him to be operated upon for gall bladder trouble, and he did not recover from the operation. The doctor testified that the injury received in the automobile accident precipitated an acute acerbation of the gall bladder condition for which he had to operate, which in turn caused a strain and stress upon the heart, which produced heart failure and death.

In Rebenstorf v. Metropolitan Life Ins. Co., supra, the court quotes from Scanlan v. Metropolitan Life Ins. Co., 93 F. (2d) 942. In this case the insured was afflicted with varicose veins in his leg. He was in an automobile accident and that part of his body near these diseased veins was bruised. Within a short time after the injury, he died and an autopsy disclosed that a blood clot had formed in these varicose veins and part of it had been dislodged and finally lodged in his lungs, which caused his death.

The other case cited is Prehn v. Metropolitan Life Ins. Co., 267 Ill. App. 190. The evidence discloses in this case that the insured had injured his spleen several months before the accident in question; that later, in attempting to rise from a chair hurriedly, he again injured his spleen, from the effects of which he later died. In all of these cases, the court held that the testimony of the various witnesses shows that the accident to the insured was the cause of the death and not the pre-existing disease of the insured.

In the case of Shroeder v. Police & Firemen’s Ins. Ass’n, 300 Ill. App. 375, a policeman who had been suffering from a heart ailment was injured while raising a ladder at a fire and later died. His widow brought suit upon the policy and the court rendered a verdict in her favor for the amount of the policy. The Court of the Third Appellate District, in their opinions, review many cases and use this language: “When, however, there is an existing disease or bodily infirmity which cooperating with the accidental means results in death, the accidental means is not the sole and independent cause of death, and there can.be no recovery under the accidental provisions of the policy.” In the case of Ebbert v. Metropolitan Life Ins. Co., 289 Ill. App. 342, the insured was afflicted with tonsilitis and was undergoing a tonsilectomy from which he did not recover. The court held that the insured was suffering from a disease which directly contributed to his death, therefore, the insurance company was not liable oil their policy. In Martin v. Illinois Commercial Men’s Ass’n, 195 Ill. App. 421, the insured was afflicted with heart trouble. He fell and injured his head and later died from the heart disease. The court in their opinion, says the insurance policy in this suit is an accident and not a life policy, and its provisions and conditions bind the parties. That the death of the insured may have been hastened somewhat by the fall, may not be doubted, yet his death was not caused by external injury, or by accidental means independently of all other causes.

This court passed on this question in the case of Crandall v. Continental Casualty Co., 179 Ill. App. 330. The plaintiff averred “that the insured, while in the act of eating food, accidentally choked thereon, and there and thereby received personal bodily injury .which was affected directly and independently of all other causes, through external, violent and purely accidental means and from which personal bodily injury, death resulted solely and necessarily from such injury.” The proof showed, “that the insured was eating some meat pie and a portion of it became lodged in his oesophagus about fourteen inches from the teeth, which brought on coughing and straining in an effort to dislodge the obstruction, which was not accomplished; that he went to work that day and when he came home in the evening, he could not swallow anything ; that he got a tube from a neighbor with which he tried to dislodge the obstruction without success. The next morning he was still unable to swallow, but went to work as usual. He was suffering all the time from the effect of the obstruction, and about eleven o’clock that day went to a doctor who succeeded in pushing the obstruction to the stomach. The insured was unable to swallow water and was in great pain afterwards, and within a short time died. An autopsy was performed upon the deceased and it disclosed that he had an abscess in his throat which had existed prior to the time of the obstruction to the oesophagus, and that as a result of the removal of the obstruction this abscess was ruptured. In the doctor’s opinion, if the abscess had not been present, the choiring and the removal of the obstruction would not have caused the death of the insured.”

The court, in discussing the law relative to the case, uses this language: “In reviewing the authorities it is helpful to divide accidental injuries associated with disease or bodily infirmity in three classes, first, accidents that cause the disease which causes death; as for instance, accidents that cause septicaemia or blood poisoning, followed by death. Second, accidents that caused the death of a person suffering from a disease or bodily infirmity, which had no casual connection with the death; as for instance, death from gun shot wound of a person suffering from tuberculosis or heart disease. Third, accidents to persons suffering from pre-existing disease or bodily infirmity, where death results from the accidental injury, and the pre-existing disease or infirmity, acting together; as for instance, an accidental injury to a person in the last stages of heart disease, that only because of such disease, results in sudden death.” In the opinion, the court reviewed many similar cases, among them National Masonic Acc. Ass’n of Des Moines v. Shryock, 73 Fed. 774, and quote therefrom. “This case is often cited in later cases. The clause referring to cause of death read, 'which would independently of all other causes cause his death, ’ followed by the stipulation that the insurance does not cover death resulting wholly, or in part, directly or indirectly, from disease or bodily infirmity." The insured suffered an injury from an accident that would not have been sufficient to produce death if his heart had not been weakened by disease, but because his heart was weakened by disease, there was evidence tending to show that the accident caused his death.” The court said, “If he sustained an accident, but at the time it occurred he was suffering from a pre-existing disease or bodily infirmity, and if the accident would not have caused his death if he had not been affected with the disease or infirmity, but he died because the accident aggravated the effects of the disease, or the disease aggravated the effects of the accident, the express contract was that the association should not be liable for the amount of this insurance. The death in such a case would not be the result of the accident alone, but it would be caused partly by the disease and partly by the accident, and the contract exempted the association from liability therefor.”

The authorities cited by the appellee are distinguishable on an important basis of fact from the case at bar, The complaint in the present case shows that the accidental injury was to a diseased growth, which is an object foreign to the normal body, namely, a duodenal ulcer. The complaint alleges that the slipping and falling of the insured acted upon this ulcer, causing it to rupture and bring about the necessity of an operation, which caused his death. Had there been no ulcer, there would have been no injury, as an ulcer is not a part of a normal person’s anatomy. It is a disease or bodily infirmity which develops and grows in some individual, and is of itself, a disease or bodily infirmity. As was said in the National Masonic Ass’n v. Shryock, supra, and quoted with approval by us in Crandall v. Continental Casualty Co., supra, if at the time he sustained the accident, he was suffering from a pre-existing disease or bodily infirmity, and the accident would not have caused his death if he had not been affected with the disease or infirmity, but he died because the accident aggravated the effects of the disease, or the disease aggravated the effects of the accident, the contract was that the insurance company should not be liable for the amount of his insurance.

It is our conclusion that the complaint did not state a good cause of action, as it shows on its face that at the time of the accidental injury to the insured, he was suffering from a duodenal ulcer, and this existing disease or bodily infirmity co-operating with the accidental injury caused the death of the insured, and he cannot recover. The judgment of the trial court is reversed.

Reversed.


source: Caselaw Access Project

license: Public Domain

text:
    William B. Brock and Verna Brock, Appellees, v. Myra Pomeroy, Appellant.
    Gen. No. 9,529.

      Heard in this court at the February term, 1940.
    Opinion filed April 26, 1940.
    Woolsey, Stickney & Lucas, of Galesburg, for appellant.
    Hardy, Hardy & Witherell, of Galesburg, for appellees.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

On July 16,1937, William B. Brock and Verna Brock, his wife, filed a suit in the circuit court of Knox county against Myra Pomeroy, the defendant and appellant in this suit. The complaint alleges that the plaintiffs are husband and wife and that on the 16th day of April, 1925, they entered into a contract with one, Benjamin P. Baird for the sale of a certain lot in the town of Abingdon in Knox county, Illinois, for the sum of $2,350. That under the terms of said agreement, the plaintiffs took possession of the property and paid the said Baird the sum of $200, being the down payment, provided in said agreement; that they held and retained possession of said property from the date of said agreement until the 30th day of June, 1937.

The complaint further alleges that on a date unknown to the plaintiffs the said Benjamin P. Baird, for a valuable consideration, sold and assigned all of his right, title and interest in said contract, to Myra Pomeroy and thereafter, on May 23, 1929, the said Myra Pomeroy filed said contract and assignment thereof, for record in the recorder of deeds’ office in Knox county, Illinois; that said contract provided that title to said premises should be shown by a warranty deed showing a merchantable title in the said Benjamin P. Baird; that the plaintiffs are informed, and believe, and state the fact to be, that the said Benjamin P. Baird at the time of the sale and assignment of said contract to said Myra Pomeroy, executed and delivered a deed to said premises, transferring the title to Myra Pomeroy, and that the same was to be delivered to the plaintiffs on the completion of the payments as provided in the contract.

The complaint further alleges that said contract called for the payment by the plaintiffs of $25 per month, and that the plaintiffs made such payments to and including March 6, 1931; that on that date the plaintiffs informed the said Myra Pomeroy, who was the owner of the said contract, that they were unable to pay more than $15 per month on said contract, and that in the event she was unwilling to accept payments of $15 per month, that they would be unable to continue to perform said contract, and be forced to forfeit the premises; that Myra Pomeroy informed the plaintiffs that she would be willing to accept the $15 per month from and after that date, and thereafter the plaintiffs paid to the said Myra Pomeroy the said sum of $15 per month, to and including the 4th of June, 1937, which payments were all accepted by Myra Pomeroy and indorsed on the contract held by the plaintiffs; that on or about May 18,1937, the plaintiffs discovered that the title to the above premises was not merchantable, either in Benjamin P. Baird, or the defendant, Myra Pomeroy, and that the same was subject to various defects, which rendered the same unmerchantable. (It then stated several defects in the title.) That on June 5, 1937, the plaintiffs tendered to said defendant, Myra Pomeroy, the full amount due on said contract above mentioned; that said defendant refused to accept such tender, and failed and refused to deliver to the plaintiffs a good and valid warranty deed conveying a merchantable title in and to the premises, and that she persisted in snch failure and refusal until the rescission of said contract of the plaintiffs, as hereinafter set forth; that thereafter, on the 30th day of June, 1937, the plaintiffs surrendered possession of the premises to the defendant and delivered up the keys of the same to her; that on July 5, 1937, the plaintiffs delivered to the defendant personally, a notice signed by plaintiffs, notifying the defendant that the plaintiffs had elected to and did thereby rescind the above contract; that the plaintiffs had surrendered possession of the premises and demanded of the defendant in the sum of $3,400.63, being the amount paid by the plaintiffs on said contract, and for taxes, repairs and upkeep on said premises with legal interest, etc. That in addition to the payments made on the contract, the plaintiffs had paid the taxes on the premises from the year 1925, to and including all taxes due and payable to 1937, and paid $400 for repairs and improvements and in excess of $50 as premium for insurance on the premises. They ask an accounting between themselves and the defendant, and that the said Myra Pomeroy be ordered to pay to them the amount of the payments which she had received from them as assignee under the original contract. The copy of the contract was attached as an exhibit to the original complaint, together with the payments indorsed thereon.

The defendant filed her answer in which she admits the making of the original contract between the plaintiffs and Baird, and the assignment thereof to herself. She admits the possession of the premises by the plaintiffs, as stated in their bill of complaint. She denies that she ever consented to the payments being reduced from $25 to $15 per month, or that the plaintiffs had made all of the payments, as set forth in their complaint, or that all of the taxes on the premises had been fully paid. She admits that the plaintiffs tendered to her the balance due on the contract, but says it was not tendered until after she had declared a forfeiture of the contract, on account of the fáilure of the plaintiffs to make the payments, as agreed. She denies that the claims filed against 'the estate of Benjamin P. Baird, deceased, is a cloud upon the title in question. In her answer she states, “that she had taken possession of the premises after she had forfeited and determined the contract. That after she had exercised her option, she negotiated with William B. Brock all to the end that she would still be willing to deliver him the said warranty deed from the said Benjamin P. Baird and wife to the said William B. Brock and Verna Brock, his wife, conveying all of said premises in question, if he cared to take the same, and pay to her the full amount still due on said contract, at the same time stating to him that she would not do anything with reference to any of his objections to the title, in view of the fact that he had broken the contract by not paying the taxes and for his other defaults.” She denied that the plaintiffs were entitled to any relief whatsoever.

To this answer the plaintiffs filed a reply in which they deny that the defendant ever forfeited the contract, or ever gave them any notice that they were in default in complying with any of the terms and conditions of the contract, or that she ever made any demand on them that they- perform any of the covenants in the contract. They charge that if any-defaults occurred, they were all waived by the defendant in that she accepted monthly payments on the contract after it had been assigned to her in 1929. The cause was referred to the master in chancery to take proofs.

Evidence was heard, both for the plaintiffs and the defendant, and the master reported his finding of facts and conclusion of law to the. court. To the master’s findings the defendant filed numerous objections. The same were overruled and by agreement of the parties, the objections were to stand as exceptions in court. Each side was to furnish the court with written briefs. The court found the issues in favor of the plaintiffs and rendered a decree in their favor for the sum of $2,565 with interest thereon, at 5 per cent per annum from July 5, 1937. It is from this decree that the appeal is prosecuted.

The appellant insists that the decree of the chancellor is against the manifest weight of the evidence, and that it is not supported by the facts and circumstances as developed therein. The court, in its decree, made a finding of fact which is substantially the same as that of the master in chancery. We have read the evidence in this case and we think it supports the finding of facts both of the court and the master, and is in accordance therewith.

It is next insisted that it was error for the court to proceed, because of a lack of necessary parties, namely, the heirs of Benjamin P. Baird, deceased, who were interested in the result of the suit and necessary parties thereto. We are unable to see why the heirs of Benjamin P. Baird, deceased, were necessary or even proper parties to this litigation. The plaintiffs ask no relief against any one except Mrs. Myra Pomeroy. In order to render one a necessary party to a chancery proceeding, it must appear that such person may be compelled to respond to the prayer of plaintiffs’ bill and where there is nothing he is called upon to do, or can be compelled to do as a duty, he is not a necessary party. Louisville & N. R. Co. v. Illinois Cent. R. Co., 174 Ill. 448.

Puterbaugh, in discussing proper parties in a chancery proceeding in his work, Sixth Edition, p. 44, has this to say, “Where the want of proper parties, or a misjoinder, appears upon the face of the bill, advantage of it may be taken by demurrer or motion to dismiss; where the want of parties does not so appear, a plea or answer setting up the fact is proper. If the objection is not taken until the hearing, the Court may order the case to stand over on terms, with liberty to the complainant to amend, by adding such new parties as may seem to be necessary; but it cannot be urged at the hearing, unless it is manifest that a decree cannot be made without bringing other parties before the Court. If neither party raises the objection, it is competent for the Court to go on and settle the rights of the parties before it, without prejudice to those who are not parties to the litigation.” So far as the record discloses, the question of proper parties defendant to the suit was not raised in the trial court.

It is contended by the appellant that the plaintiffs did not properly rescind their contract. The court, in his finding of fact, found that this contract was properly rescinded, and the evidence shows, without any dispute, that the written notice was delivered to Mrs. Pomeroy personally; that the full amount due on the contract was tendered to Mrs. Pomeroy; that the plaintiffs had elected to terminate their contract and also demand the return of the money which they had paid her on the same. We find no merit in this contention.

It is next insisted that the plaintiffs were guilty of laches. The evidence clearly shows that the plaintiffs had no reason to examine the title until a short time before the termination of the contract; that when the Building & Loan Association’s attorney made an examination of the title, he informed the plaintiffs that it was not a merchantable title. Their contract provided that at the termination of the contract, when they had fully complied with its terms and made all of their payments, that they were entitled to a warranty deed showing a merchantable title. They had a right to rely upon that, and it was not necessary for them to do anything in regard to the title until they made their final payment, then they were legally entitled to a warranty deed and a merchantable title to the premises.

The defendant claims that she properly forfeited the plaintiffs’ rights in the premises prior to the time that they tendered her the $200, and made a demand for the deed. She states the reason she did so was because they had allowed taxes for 1935, and 1936, to become delinquent and forfeited to the State. The master in chancery and the trial court in their finding of fact, have found against the defendant on this issue of fact, and we think their finding is in accordance with the evidence in the case.

The defendant claims that the court erred in finding, that by her indulgence as to plaintiffs’ monthly payments, it is no waiver of default of a different character, and that she never had waived her right under the contract to have the plaintiffs pay the 1935, and 1936 taxes. The evidence clearly shows that the defendant made no complaint about the taxes not being paid promptly. After she claims that she forfeited the contract, she accepted another monthly payment of $15 on the same. At the time that the plaintiffs tendered the $200, the balance due on the contract, all of the back taxes had been fully paid, so there was no reason for the defendant at that time to say that she had been damaged in any way by the nonpayment of the 1935, and 1936 taxes. At the time the plaintiffs tendered the money and made the demand for the deed, the only thing that was needed to consummate the contract, was to furnish the warranty deed and to show a merchantable title. This, the defendant failed to do.

We are not impressed with appellant’s argument that the plaintiffs are not fit candidates for relief from a chancellor, and the equitable attitude of Myra Pomeroy. The trial court and this court must decide the case on the law and evidence as produced in the trial court. The contract provided that upon certain conditions, the plaintiffs were entitled to a warranty deed showing a merchantable title. We think the evidence discloses that the title, as tendered to the plaintiffs, was. not a merchantable title, but if they had accepted the deed with the title being questionable as it is, that they would not have the kind of a title that they contracted to pay for when they entered into the contract of sale. The plaintiffs had paid their money to Mrs. Pomeroy for something that she, as assignee of the original grantor, was unable to deliver, as provided in the contract. It is our conclusion that the court properly found that the plaintiffs were entitled to recover the amount they paid to Mrs. Pomeroy on this contract, together with 5 per cent interest from the date that they rescinded the contract. The decree of the trial court will be affirmed.

Affirmed.


author: Mr. Justice Dove

text:
    Francis J. Coyle, Appellee, v. Velie Motors Corporation, Appellant.
    Gen. No. 9,398,

      Heard in this court at the February term, 1939.
    Opinion filed April 26, 1940.
    Andrew Kopp, of Moline, for appellant.
    Bell, Farrar & Scott, of Rock Island, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

On April 24, 1934, Annie F. Velie, as executrix of the estate of W. L. Velie, deceased, recovered two judgments by confession in the circuit court of Rock Island county against the Velie Motors Corporation, one for $140,799.93, which includes an attorney fee of $6,700, and the other for $39,091.80, which included an attorney fee of $1,861. On the same day executions were issued and duly returned unsatisfied. Francis J. Coyle, appellee herein, appeared for and represented the plaintiff as her attorney in these proceedings. On March 30, 1937, the said Annie F. Velie, as executrix, executed two satisfaction pieces, which were filed for record on April 1, 1937, which released, satisfied and discharged these judgments of record.

On January 28, 1938, her said attorney, Francis J. Coyle, filed in the circuit court of Rock Island county his petition for an attorney’s hen, alleging that he was, on April 24, 1934, and for several years immediately prior thereto and for several years subsequent thereto engaged in the practice of law in the city of Rock Island, that a short time prior to April 24,1934 he was retained and-employed by Annie F. Velie as executrix of the estate of W. L. Velie, deceased, for the purpose of commencing and prosecuting a suit or suits against the Velie Motors Corporation to recover the amounts remaining due on two notes executed by the corporation to W. L. Velie, deceased, and that pursuant to said employment he instituted said two suits and recovered said judgments on April 24, 1934 as hereinbefore set forth. The petition then alleges among other things that on March 26, 1937 said judgments were a lien on all the real estate then owned by the Velie Motors Corporation situated in the county of Rock Island and in the State of Illinois and that he served a written notice of his claim for lien upon said corporation by registered mail, which notice was actually received and delivered to the Velie Motors Corporation at its office in Moline, Illinois on March 26, 1937. It was then alleged that the contract of employment between petitioner and his client, the said Annie F. Velie, was not in writing, that it contained no express provision relative to the amount or extent of the fees to be paid petitioner for his services but averred that his services in procuring said judgments were reasonably worth $8,561 and that that sum is the usual, reasonable and customary attorney fee for services of such character as petitioner rendered. Upon information and belief petitioner stated that his client, as executrix, received the full amount of said judgments, including principal, interest and attorney fees, that petitioner has never been paid anything for his services and that there justly remains due and owing to him for which he claimed an attorney’s lien said sum of $8,561, together with interest from the date of said judgments. Attached to and made a part of the petition was a copy of the notice of attorney’s lien referred to in the petition directed to the Velie Motors Corporation, Moline, Illinois. The defendant Velie Motors Corporation appeared and filed its motion to dismiss and also its motion to strike certain parts of the petition. A hearing' was had and these motions were denied. The defendant elected to abide by its motions and refused to answer and it was thereafter defaulted and an order entered to the effect that the releases executed by Annie F. Velie as executrix were null and void as to petitioner and a judgment was rendered in his favor and against the Velie Motors Corporation for $10,423, being the amount of the attorney fees included in the original judgment, together with interest thereon from the day of its rendition. The order also directed that the original judgment should stand as security for the payment of the $10,423 judgment which the court that day rendered against the defendant. It is from this judgment and order that defendant appeals.

The statute upon which this proceeding is based provides : “That attorneys at law shall have a lien upon all claims, demands and causes of action . . . which may be placed in their hands by their clients for suit or collection, or upon which suit or action has been instituted, for the amount of any fee which may have been agreed upon by and between such attorneys and their clients, or, in the absence of such agreement, for a reasonable fee, for the services of such attorneys rendered or to be rendered for their clients on account of such suits, claims, demands or causes of action. Provided, however, such attorneys shall serve notice in writing, which service may be made by registered mail, upon the party against whom their clients may have such suits, claims, or causes of action, claiming such lien and stating therein the interest they have in such suits, claims, demands or causes of action, and such lien shall attach to any verdict, judgment or decree entered and to any money or property which may be recovered, on account of such suits, claims, demands or causes of action, from and after the time of service of the aforesaid notice. On petition filed by such attorneys or their clients any court of competent jurisdiction shall, on not less than five days’ notice to the adverse party, adjudicate the rights of the parties and enforce such lien in term time or vacation. ’ ’ Ill. Rev. Stat. 1937, ch. 13, sec. 14 [Jones Ill. Stats. Ann. 9.13].

It is the contention of counsel for appellant that this Lien Act does not give appellee a lien on this judgment or any part thereof and counsel argue that these promissory notes upon which judgments were rendered were at that time assets of the estate of W. L. Yelie, deceased, that when they became merged in these judgments, the judgments became assets of said estate, that appellee’s contract of employment was with the executrix of the estate of said W. L. Velie and that his services were rendered to said executrix, that she had no authority to charge the assets of the estate she represented with the payment of attorney fees and that under the authorities she became liable personally to appellee for his fees and that appellee never acquired any interest in said judgments or any part thereof upon which he could assert a lien under the statute. Counsel for appellee concede that the contract between appellee and Mrs. Velie was her personal obligation and that the law is that she became personally liable to appellee for the payment of his attorney fees and that their contract could not be directly enforced by appellee against the estate which his client represented. Counsel insist, however, that each of these judgments included four items; first, the balance of the principal of the note sued on; second, the accrued interest; third, attorney fees and fourth, costs. Counsel then argue that these judgments are divisible and that the portions of these judgments representing principal and interest are truly assets of the W. L. Velie estate and such as the personal representative was obliged to account for but that the portions of said judgments representing attorney fees are not of that character but such sums were allowed the judgment creditor for the purpose of indemnifying her or reimbursing her for the attorney fees which she incurred by reason of her contract of employment with appellee and therefore appellee has an equitable or beneficial interest in these judgments to the extent of the amount of attorney fees included therein.

An attorney employed by the personal representative of a decedent has no personal claim against the estate of such decedent for the services rendered the estate but must look for compensation to the personal representative who employed him in his individual and not in his representative capacity for payment of his claim. 11 R. C. L. 233, 234, 235, sections 260-262. In an annotation in 50 A. L. R. 657, it is stated that the foregoing rule precludes an attorney from asserting a lien against an estate for services rendered at the instance of the personal representative. On page 661 the author of said annotation in 50 A. L. R. states that statutes have been enacted in a number of States giving attorneys a lien upon the claims of their clients for the payment of their fees, that these statutes extend the right of a lien considerably further than the right given by common law but do not by their terms or by necessary implication, give a lien upon the estate of a decedent. In Schottler v. McArdle, 174 Ill. App. 125, it was held that our Attorney’s Lien Act did not give an attorney any lien upon moneys coming into his hands by reason of a suit instituted by him on behalf of an administratrix, stating that the administratrix was entitled to credit for attorney fees paid by her only so far as the probate court finds that such fees are reasonable. In holding that our statute does not give an attorney a lien on funds held by an administrator, since the administrator has no authority to charge such funds with payment of attorney fees, the same court, in commenting upon said act, in Mercer v. Chicago City Ry. Co., 174 Ill. App. 234, said: “These provisions . . . clearly imply that the ‘client’ who employs the attorney must have such authority over the cause of action and the money recovered thereon as entitles him to bind the owners of the fund by contract for the payment of attorney fees. The law is well settled that an administrator has no such authority over funds or property in his hands as administrator as will enable him to charge such funds or property or the owners thereof, by his contract. Such contracts if made merely create a personal liability against himself.” As said in In re Nocton, 162 N. Y. Supp. 215, “It does not seem to be reasonable or consistent with the proper application of legal principles to hold that an attorney has a cause of action against an executor or administrator individually for services performed in the administration of an estate and at the same time has a lien upon property which the executor or administrator holds as trustee for the legatees or next of kin. I am therefore inclined to think that an attorney who performs services for an executor or administrator of an estate has not a lien upon the general assets of the estate for the value of his services.”

Counsel for appellee have cited no authority in support of their contention that the judgment obtained by the representative of the W. L. Velie estate could be divided and that appellee was entitled to assert his lien against the portion thereof representing attorney fees. The Attorney’s Lien Act is purely statutory and it must be strictly construed. Mayer v. Yellow Cab Co., 247 Ill. App. 42. A money judgment at law is for a definite, certain sum and in the instant case it included principal, interest and attorney fees all merged in a lump sum and when so merged it is not divisible but must be treated as an entirety and stands or falls as a whole. 33 C. J. 1051, sec. 5. Nor are we able to agree with appellee’s contention that he has an equitable or beneficial interest in these judgments to the extent of the attorney fees included therein. These judgments were rendered in favor of the plaintiff. The provisions in these notes as to attorney fees were for the benefit of the plaintiff in those suits and not the attorney and were inserted for the purpose of indemnifying the client of appellee for her reasonable attorney fees. Montgomery v. Dime Savings & Trust Co., 290 Ill. 407; Huber v. Brown, 243 Ill. 274.

In view of our conclusion that the Attorney’s Lien Act of this State does not give appellee a lien on the judgment obtained against appellant there is no need to consider the other errors relied upon for reversal. The order and judgment of the circuit court of Rock Island county will be reversed.

Order and judgment reversed.


author: Mr. Justice Hebel Mr. Justice Burke

text:
    People of the State of Illinois ex rel. John S. Rusch, Appellee, v. Henry Levin et al., Appellants.
    Gen. No. 40,671.

      Heard in the third division of this court for the first district at the April term, 1939.
    Original opinion filed October 25, 1939.
    Rehearing opinion filed and rehearing denied May 6, 1940.
    Mater Goldberg and Harold Ginsburg, both of Chicago, for appellants.
    Thomas J. Courtney, State’s Attorney, for appellee ; John F. Cashen, Jr., of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the respondents, who were found guilty of contempt for misconduct and misbehavior as officers of the Cook county court. Henry Levin, one of the judges of election was sentenced to 18 months in the county jail. Minnie Hirsch and Lillian Rothstein, the other two judges, were each sentenced to six months in the county jail, and the two clerks of election, Bertha Schallman and Joseph Rosenfeld, were each sentenced to 90 days in the county jail.

At a primary election held in Chicago on April 12, 1938, the five respondents served as judges and clerks of election in the 35th precinct of the 24th ward. The proceedings were brought under section 17 of the primary law (Ill. Rev. Stat. 1937, ch. 46, par. 381 [Jones Ill. Stats. Ann. 43.400]). On September 1, 1938, a petition was filed against the respondents, by leave of court, in the county court of Cook county by John S. Busch, chief clerk of the board of election commissioners. The petition alleged that the respondents were guilty of various types of wilful and fraudulent misconduct and prayed that they show cause why they should not be adjudged guilty of contempt of court. On October 14, 1938, an amended petition was filed by leave of court, in which it is alleged that the respondents permitted five specific persons to vote who were not registered in the precinct; permitted one Jacob Chaiten to vote twice under two application numbers; used dummy tally sheets in the canvass, and recorded on the poll lists names' and addresses of persons who did not vote. Further, it is charged that the respondents gave assistance to voters who did not request it, although the voters were able to read and write; did not examine the assisted voters to determine if they were illiterate and did not insist that voters needing assistance execute affidavits to that effect, and permitted one of the judges to go into the booth with voters who did not ask for assistance and to mark their ballots; permitted one judge to enter a booth with a voter and to mark his ballot without asking him the names of the candidates for whom he wished to vote; and further that one of the judges was permitted to assist a voter and not permit the voter to express his choice of candidates, but to mark the ballot according to his own desire, and the respondents were charged with making a false canvass and fraudulently certifying an incorrect total of votes cast to the board of election commissioners.

On October 20, 1938, the respondents filed a verified petition for change of venue. The prayer of the petition was denied. On October 24,1938, the respondents filed a further verified petition alleging that the trial judge was disqualified from hearing the cause and praying for a change of venue. The prayer of this petition was denied. It is also contended that the court had no jurisdiction to try and sentence the respondents for legal assistance to voters.

A trial was had before the county court from October 24, 1938, to December 15, 1938. The court heard the evidence of fifty-five witnesses, and all of the respondents testified in their own behalf. On December 15, the court entered a judgment order, from which this appeal is taken.

Several grounds have been urged that the order entered by the court was erroneous, one being that the court erred in denying the respondents’ petition for a change of venue filed on October 20, 1938; and also in not holding himself disqualified from hearing the cause as alleged in respondents’ petition filed October 24, 1938, and that the judgment is contrary to the evidence, and the punishment inflicted by the court is grossly excessive.

The first objection offered by the respondents is that the trial court erred in denying respondents’ petition for a change of venue, and in not holding himself disqualified from hearing the cause as alleged in respondents’ petition.

The question here is whether the respondents being tried in the county court of Cook county for contempt, in accordance with the provisions of par. 381, sec. 17, ch. 46 of the primary law [Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 43.400], are entitled to a change of venue, and the respondents contend that cases of contempt under section 17 of the primary law are included within the statutory language of “any civil suit or proceeding in law or equity.” (Ill. Rev. Stat. 1937, ch. 146, sec. 1 [Jones Ill. Stats. Ann. 107.316]); that therefore the respondents are entitled to a change of venue as a matter of right, provided they present their petition in due time and in proper form, and they further contend that the facts alleged in the petitions bring the case within the common law rule, and regardless of whether the respondents are entitled to a statutory change of venue they are entitled to have an impartial trial; therefore, the trial court erred in denying the second petition for a change of venue.

In the case of People v. White, 334 Ill. 465, the Supreme Court passed upon several of the questions that have been called to our attention in the instant case, and we therefore quote the language used by the Supreme Court in this decision as follows: “The rule long established both at common law and in equity is, that the legislature may not restrict the jurisdiction of the court in contempt proceedings but the power to punish for contempt is inherent in the court. (State of Illinois v. Froelich, 316 Ill. 77; People v. Panchire, 311 id. 622.) It has been generally held, however, that the legislature may aid the jurisdiction or enlarge the powers of the court by declaring certain improper conduct to be a contempt of court though the same had not been theretofore so regarded, (6 E. C. L. p. 525,) although it has no power to make that a contempt which in the nature of things cannot be a contempt, (Puterbaugh v. Smith, 131 Ill. 199), or to punish crimes as such by contempt proceedings. In Cheadle v. State, 110 Ind. 301, 11 N. E. 426, it was held that the legislature may aid the jurisdiction of courts by declaring certain improper conduct to be contempt not theretofore so regarded. It was likewise so held In re Clayton, 59 Conn. 510, 21 Atl. 1005. In In re Robinson, 117 N. C. 533, 23 S. E. 453, and in Carter v. Commonwealth, 96 Va. 791, 32 S. E., 780, it was held that the legislature may regulate the practice in proceedings for contempt in cases of such extended jurisdiction. This we believe to be a sound rule. Section 13 of article 2 of the City Election law has made judges and clerks of election officers of the county court and has provided methods of procedure against them for misbehavior in office. The power to punish for contempt is not limited strictly to those matters which offend the dignity of the court or constitute abuses of its process. It has long been recognized that courts have power to punish for contempt, in certain cases, administrators, executors, guardians, masters in chancery, reporters, sheriffs, bailiffs, clerks, jurors, witnesses, attorneys and receivers. Some of the duties of these officers are merely ministerial and they are charged with no duties that are judicial in their character, yet where the court appoints officers to act with reference to the subject matter committed to it for administration it is necessary that these officers be concerned with the judicial conduct of the court and hence guilty for violation of their duties in relation to the same. (Sherman v. People, 210 Ill. 552.) The election judges and clerks are expressly made officers of the court. They are commissioned by the court, and they are properly held liable in summary punishment for misconduct in office.

“While it was a general rule at common law, in cases of criminal contempt, that the answer of the respondent under oath purges him of contempt, (People v. McDonald, 314 Ill. 548,) yet the contempt here considered cannot be said to be a criminal contempt as that term was understood at common law. (People v. Panchire, 311 Ill. 622; Hake v. People, 230 Ill. 174; O’Brien v. People, 216 id. 354; Buck v. Buck, 60 id. 105; People v. Diedrich, 141 id. 665.) That the court has power to punish its officers cannot be doubted, and where the legislative act, as in the instant case, is one regulating the procedure before the court, the fact that it changes the procedure as it existed at common law does not render it invalid. The act providing procedure in this case is in aid, and not in limitation, of the inherent power of the court to adjudge for contempt, and the legislature in enacting it cannot be said to be trespassing upon the province of the judiciary. The method of procedure prescribed is that the cause shall be ‘tried in open court on oral testimony in a summary way, without formal pleadings. ’ Under this provision it is not sufficient to purge a respondent that he file a sworn answer denying the charges of misconduct. It will be readily understood that a hearing of testimony is frequently necessary to secure the effective application of the remedy provided by the act. Had the respondents in the instant cases been permitted to purge themselves by their sworn answers the result would have been to render the court powerless to punish its officers for misbehavior in office. Sworn answers were filed denying the acts of misbehavior charged, yet on a hearing the evidence justified the finding that they committed the acts charged in the petition for rule to show cause.” See also Sherman v. People, 210 Ill. 552. So when we apply the reasoning of the court to the case before us, we find that the proceeding is not one that is controlled by the general rule at common law in cases of contempt. Therefore, as the court has indicated, the respondents by filing a sworn answer in the instant case do not purge themselves of the charge of contempt.

It is contended by the respondents that this being a criminal proceeding the case was not properly titled, and that it should have been entitled ex rel. the people. The case of People v. Jilovshy, 334 Ill. 536, was a proceeding charging certain named respondents with contempt for misbehavior in office as judges and clerks of election, and the first contention there made is that the proceeding was a criminal prosecution, and that by section 33 of article 6 of the constitution “all prosecutions shall be carried on in the name and by authority of the People of the State of Illinois, and conclude: against the peace and dignity of the same,” and that since this proceeding lacked these requirements it is void. Then the court said, in part: “Contempts are not crimes within the meaning of the statute defining misdemeanors. (People v. Panchire, 311 Ill. 622.) Section 13 of article 2 of the City Election act (Cahill’s Stat. 1927, p. 1143; Smith’s Stat. 1927, p. 1224); expressly provides that the punishment of a judge or clerk of election for contempt of court shall not be a bar to a proceeding against such officer, criminally, for any violation of the act. The particular constitutional provision has no application to a proceeding to punish for contempt. People v. Panchire, supra; State of Illinois v. Froelich, 316 Ill. 77.) ” So when we come to consider the opinions of the Supreme Court we find the court has indicated that a proceeding of the character before us is not, under the rule at common law, a criminal contempt proceeding, but is a proceeding provided for by statute. And, too, as indicated in the opinions, it is a fact that they may be properly chargeable with violation of the criminal code, still this is a proceeding provided for by statute, and it was for the court to determine from the evidence as to the question of guilt and as to fixing the punishment provided for by law, and it is controlled entirely by the statutory provisions — which we have cited — upon questions involved in contempt proceedings such as we are here considering.

As to respondents’ contention that they are entitled to a change of venue as a matter of right and that the court erred in refusing to enter such an order, we have considered the subject in several cases. In People ex rel. Rusch v. Williams, 292 Ill. App. 228, which was a case in which judges of election were found guilty and punished in a contempt proceeding and on appeal the question of authority of the judge of the county court to deny their application for a change of venue, this court said:

“It is also argued that the trial court should have granted defendants’ prayer for a change of venue. The point is without merit. Sec. 13, art. 2 of the Elections Act, Ill. State Bar Stats. 1935, ch. 46, Tf'267; Jones Ill. Stats. Ann. 43.277, makes judges and clerks of election officers of the county court, and as such liable in a proceeding for contempt for any misbehavior in their offices. We do not understand how there could be any change of venue from the court trying its own officers for contempt.”

And then again in the case of People ex rel. Rusch v. Savaiano, 293 Ill. App. 515, this court said:

“The proceeding in this case, as stated by this court in Rusch v. Williams, 292 Ill. App. 228, is purely statutory. In the section of the act referred to, to wit: section 13, art. 2 of the Elections Act, Ill. State Bar Stats. 1935, ch. 46, 267; Jones Ill. Stats. Ann. 43.277, after providing for the manner of appointing judges and clerks of election, and the confirmation of their appointment by the county court, it is provided that: ‘After confirmation and acceptance of such commission, such judges and clerks shall thereupon become officers of such court and shall be liable in a proceeding for contempt for any misbehavior in their office, to be tried in open court on oral testimony in a summary way, without formal proceedings, but such trial or punishment for contempt of court shall not be any bar to any proceedings against such officers, criminally, for any violation of this act.’
“In Johnson v. Von Kettler, 84 Ill. 315, the Supreme Court, in passing upon the question as to the jurisdiction and power of county courts, said: ‘Power [of county courts] to imprison is a special, statutory power, and can be exercised only in the cases and "in the manner specifically prescribed by the statute. ’
"
“In the case at bar, we are of the opinion that the contempt charged here is in the nature of a criminal contempt; that the purpose of the statute is that in case of its violation, the penalty provided may be imposed in order to vindicate the authority of the court with respect to matters connected with the holding of elections, and that it is distinguished from the class of cases where the proceeding is remedial. See People v. White, 334 Ill. 465. Also, our opinion is that the court was not in error in refusing to grant the change of venue.”

It might be noted that the case of People ex rel. Rusch v. Savaino, 292 Ill. App. 515, has been the subject of criticism by the respondents, who state that this case is based on the assumption that this type of case involves criminal contempt. However, upon an examination of this authority we find that the writer of the opinion did not make any statement which might be considered to mean that the contempt case was a criminal contempt. On the contrary, the language used by the majority opinion is that it was in the “nature” of a criminal contempt, and not as has been suggested, a criminal contempt. It might be noted, too, that in that case upon a petition for leave to appeal the Supreme Court denied an appeal, so that the decision is final. Also People ex rel. Rusch v. Freedman, 297 Ill. App. 73; People ex rel. Rusch v. Sulli, 296 Ill. App. 639 (Abst.) were cases in which the question of change of venue was before this court, and the court decided that the county court did not err in denying a change of venue. From the order of this court the appeals were taken to the Supreme Court and the appeals were denied, so the opinions became final in those cases. In view of the decisions upon a like question before the court and the conclusion that there was no error in denying a change of venue, we believe that question has been settled and that nothing has been advanced which would justify a change of the rule that has been adopted by this court.

The next point made by the respondents is that the court had no jurisdiction to try and sentence the respondents for illegal assistance to voters, and that par. 313, sec. 24, ch. 46 (Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 43.201]) provides in part as follows:

“Any person who secures or attempts to secure assistance in voting who is not physically disabled or illiterate as herein provided, or any election official who knowingly assists a person in voting contrary to the provisions of this section is guilty of a misdemeanor and upon conviction thereof, shall be fined not less than $200 nor more than $2,000 or imprisoned in the county jail for not less than 30 days nor more than one year, or both.” They further contend that section 17 of the primary law is a general statute applicable to all conceivable types of misbehavior at the polls. Section 24 of the Australian ballot law deals specifically with illegal assistance to voters. It defines the offense, states what constitutes illegal assistance, sets out under what circumstances assistance can legally be given to a voter, and prescribes a punishment for commission of the offense.

It is well to have in mind the provision of the primary election law, par. 412, sec. 48, ch. 46 [Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 43.431], which also provides for assistance to voters, and is as follows:

“Any primary elector who may declare upon oath that he cannot read the English language, or that by reason of any physical disability he is unable to mark his ballot, shall, upon request, be assisted in marking his primary ballot in the same manner as provided by the general election laws of this state.” and when we come to consider the provision that provides for such assistance we find in par. 313, sec. 24:

“Any voter who may declare upon oath that he cannot read the English language or that by reason of any physical disability he is unable to mark his ballot, shall, upon request, be assisted in marking his ballot, by two of the election officers of different political parties, to be selected from the judges and clerks of the precinct in which they are to act, to be designated by the judges of election of each precinct at the opening of the polls.” The respondents in seeking to avoid the consequences of these provisions contend that the offense of rendering illegal assistance to voters is a misdemeanor, specifically created and defined by section 24 of the Australian ballot law, to which we have referred, and further contend that this offense cannot be punished under a statute which deals generally with any misbehavior, and as regards prosecution of respondents for committing a misdemeanor, these proceedings are fatally defective. They seek to point out the reasons they consider sufficient to prevent the.court from punishing them for contempt, and suggest that the specific provisions of section 24 of this ballot law supersede the general provisions of section 17 of the primary law.

We are unable to agree with this theory, for the reason that the Primary Act specifically provides, as we have indicated, for the assistance to voters who bring themselves within the provisions of the act in order that they may receive assistance of the judges in marking their ballots; and further, it is not for violation of the provisions of this particular act, but a contempt proceeding is for misbehavior of judges and clerks of election, in that particular precinct, who are officials of the county court, in not rendering and performing such service as is required under the provisions of the act we have quoted, and as our Supreme Court has stated, the county court has power to punish these officials. Of course, the judges and clerks may be punished for a criminal violation, but this' is not controlling in the instant case, as we have before indicated.

It is also contended by the respondents that the polling place used on the night in question was in a shoe repair shop and that it was not large enough for the purpose of carrying on this election in that precinct, and they point out the inconvenience they suffered by the selection of a place that was not fit for the purpose for which it was to be used on the day of the primary election. Of course that was a matter for the election commissioners to remedy, and if they selected a polling place which was not as convenient as it should be, that would not be a defense to an action of the kind here in this court. They are charged with contempt of court as judges and clerks of election for misbehavior as officers of the Cook county court. The question of misbehavior is a matter for this court to pass upon, and we must decide whether the election officials violated the provisions of the general primary law, which provide for assistance to any voter who may declare upon oath that he cannot read the English language or that by reason of any physical disability he is unable to mark his ballot, and upon request, be assisted by two of the election officers, and the judge determine whether the voters who were assisted were able to read or whether they were afflicted with a physical disability which prevented them from properly marking their ballots.

It appears from the record that thirty-six witnesses were called and appeared, and that all of them could read and write, eight of whom were graduates of grammer school, fourteen had attended high school, seven of whom graduated and two of these attended college. Now all of these witnesses were assisted in marking their ballots, which was apparently in violation of the provisions of this act. All of the witnesses were according to the evidence, able to read the English language, and there is nothing from which we can determine to indicate that they were physically disabled and thereby prevented from marking their ballots. The judges and clerks of election apparently granted assistance, although it was not requested and did not come within the provisions of the act. Then again, there was a witness, Ida Feldman. She signed an application, and the respondents could not find her name on the list so she left the polling place and did not vote. However, it appears from the record that there was a ballot cast by a voter by that name. Morris Grossman a voter from 1551 South Lawndale avenue, where there were no living quarters, and who was not a registered voter from this precinct, was given assistance and one of the judges marked his ballot. He was permitted to vote. Upon a recount of the ballots cast there were discrepancies in the count for the Democratic candidates showing the difference between the ballots tallied by the judges and clerks, and a recount of the ballots cast was not tallied on the tally sheets. The judges and clerks of election were occupied 29 hours in this service. Upon this evidence the court entered the findings of guilt against the respondents.

There is one other question we believe should be considered and that is whether the punishment fixed by the judge of the county court is excessive, and in considering this question we are to take into consideration that provision of the Bill of Rights, sec. 11 of art. II of the Constitution of 1870 [Jones Ill. Stats. Ann. Vol. I, p. 192], which provides that “All penalties shall be proportioned to the nature of the offense. . . . ” and when we come to consider the punishment inflicted by the county court, we find that Henry Levin, one of the judges was sentenced to serve 18 months in the county jail, which punishment was greater than for a violation of the act providing for assistance to voters. Punishment for such criminal violation is not to exceed one year imprisonment, or a fine not to exceed $2,000, or both, and we believe under the circumstances in this case that such punishment was clearly excessive, in view of the provision of the statute which should have been taken into consideration in inflicting this punishment.

As to the two judges Minnie Hirsch and Lillian Bothstein, the punishment of six months in the county jail, since these persons bear a good reputation, is excessive, in view of all the facts and circumstances in the case, and this applies with equal force to the clerks of election, Bertha Schallman and Joseph Bosenfeld, who were sentenced to 90 days. While it is true the judge of the county court has the right to inflict punishment such as he believes is justified by the record, still this punishment was not proportioned to the acts charged.

This court said in People ex rel. Rusch v. Williams, 292 Ill. App. 228:

“However, physical disability is not a sufficient excuse for dereliction of duty, and while we are of the opinion that the one year sentence is excessive, yet there should be some punishment. We are of the opinion that a moderate fine, such as $50, would be sufficient punishment. As was said in People ex rel. Rusch v. Matthiesen, 286 Ill. App. 615 (Abst.), we would enter judgment in this court but probably have not the power. Ash-Madden Rae Co. v. International Ladies Garment Workers’ Union, 290 Ill. 301.”

For the reasons stated the judgment is reversed and the cause is remanded to the court to enter such further order as may be consistent with the views we have expressed in this opinion.

Beversed and remanded.

Denis E. Sullivan, P. J., and Burke, J., concur.

On Rehearing.

Mr. Justice Burke

delivered a separate opinion.

I am of the opinion that a rehearing should be granted. I agree that the judgment should be reversed and the cause remanded. The trial judge was a candidate for renomination at the primary wherein the respondents acted as judges and clerks. They are accused of fraud and misconduct in the performance of their duties, which alleged fraud and misconduct resulted in the trial judge being credited with a less number of votes than he would have received had the ballots been honestly voted, counted and tallied, and likewise resulted in his opponent being credited with a greater number of votes than he should have received. In view of the fact that the county judge was a candidate and of the charges made in the verified ' petition for a change of venue, I am of the opinion that it was his duty to grant a change of venue, or voluntarily to transfer the cause to another judge.


author: Opinion by Justice Hebel.

text:
    Vera Davidson, Administratrix of Estate of Scott Davidson, Jr., Deceased, Appellant, v. A. A. Sprague and Britton I. Budd, Appellees.
    Gen. No. 40,620.
    (Abstract of Decision.)
    Heard in third division, first district, at February term, 1939;
    original opinion filed December 13, 1939;
    rehearing opinion filed April 10, 1940.
    Walter F. Boye and Henry J. Hughes, for appellant, Gardner, Foote, Morrow & Merrick, for appellees;
    Walter
   Opinion by Justice Hebel.

“Not to be published in full.”


author: Opinion by Presiding Justice Stone.

text:
    Gerold Moving and Warehouse Company, Appellee, v. Potomac Insurance Company of District of Columbia, Appellant.
    (Abstract of Decision.)
    Heard in this court at October term, 1939;
    opinion filed March 9, 1940.
    Kramer, Campbell, Costello & Wiechert, for appellant; Wheeler, Oehmke & Dunham, for appellee.
   Opinion by Presiding Justice Stone.

“Not to be published in full.”


text:
    William McGuire, Minor, et al., by Fred McGuire, Their Next Friend, Plaintiffs in Error, v. Merchants State Bank of Centralia, Illinois Trustee, and E. T. Johnson, Defendants in Error.
    (Abstract of Decision.)
    Heard in this court at October term, 1939;
    opinion filed March 9, 1940;
    rehearing denied April 3, 1940.
    June C. Smith, Hugh V. Murray, Jr., and William C. Stephens, for plaintiffs in error; Green & Palmer, for defendant in error E. T. Johnson; Walter E. Will, Green & Palmer and Leal W. Reese, for applicants to intervene.
   Opinion by Presiding Justice Stone.

“Not to be published in full.”


text:
    George Weinhagen, Jr., Administrator of Estate of Albert Weinhagen, Deceased, Appellee, v. City of Herrin, Appellant.
    (Abstract of Decision.)

      Heard in this court at October term, 1939;
    opinion filed March 9, 1940.
    Lan Haney and E. N. Bowen, for appellant; Gold & McCann, Costigan & Wollrab and C. Ross Reynolds, for appellee; J. E. Porter and Walter A. Yoder, of counsel.
   Opinion by Presiding Justice Stone.

“Not to be published in full.”


author: Opinion by Justice Dady.

text:
    Earl Williams, Appellee, v. Bertha Kraper, Appellant.
    (Abstract of Decision.)
    Heard in this court at October term, 1939;
    opinion filed March 9, 1940;
    rehearing denied April 15, 1940.
    J. E. Carr, for appellant; S. M. Ward, for appellee.
   Opinion by Justice Dady.

“Not to be published in full.”


text:
    Francis J. Skye, Appellee, v. Francis J. Skye Distributing Company, Appellant.
    (Abstract of Decision.)

      Heard in this court at October term, 1939;
    opinion filed March 9, 1940.
    R. B. Hendricks and Robert B. Rutledge, for appellant; Whitnel, Browning, Listeman, & Walker, for appellee.
   Opinion by Justice Dady.

‘‘Not to be published in full.”


text:
    People of the State of Illinois, Defendant in Error, v. Ted Holzhauer and Mary Weatherly, Plaintiffs in Error.
    (Abstract of Decision.)
    Heard in this court at October term, 1939;
    opinion filed March 9, 1940.
   Opinion by Justice Dady.

“Not to be published in full."


author: Opinion by Justice Dove.

text:
    Anton E. Sundquist, Appellee, v. Illinois Fire Insurance Company of Peoria, Appellant.
    Gen. No. 9,379.
    (Abstract of Decision.)

      Heard in this court at February term, 1939;
    opinion filed April 6, 1940.
    Clausen, Hirsch & Miller and Shurtleff & Niehaus, for appellant; F. B. Brian and Andrews & Young, for appellee; J. E. Richards, of counsel.
   Opinion by Justice Dove.

“Not to be published in full.”


author: Opinion by Justice Huffman.

text:
    In re Conservatorship of Herman R. Hire, Incompetent. Bessie L. Hire, Conservatrix, Appellee, v. First National Bank of Peoria, Appellant.
    Gen. No. 9,477.
    (Abstract of Decision.)
    Heard in this court at February term, 1940;
    opinion filed April 6, 1940;
    rehearing denied May 9, 1940.
    F. B. Brian and D. W. Evans, for appellant; William Dunn and J. E. Richards, of counsel; James H. Andrews, Gregg A. Young and Harper Andrews, for appellee.
   Opinion by Justice Huffman.

“Not to be published in full.”


text:
    William Keltz, Jr., Minor, by William Keltz, His Next Friend, Appellee, v. Frank C. Nicodemus, Jr., Receiver, et al., Appellants. Robert Keltz, Minor, by William Keltz, His Next Friend, Appellee, v. Frank C. Nicodemus, Jr., Receiver, et al., Appellants. William Keltz, Appellee, v. Frank C. Nicodemus, Jr.. Receiver, et al., Appellants.
    Gen. No. 9,481.
    (Abstract of Decision.)
    Heard in this court at February term, 1940;
    opinion filed April 6, 1940;
    rehearing denied May 9, 1940,
    Donovan, Bray & Gray, for appellants; Barr & Barr, for appellees.
   Opinion by Justice Huffman.

“Not to be published in full.”


text:
    W. F. Holmes, Appellee, v. W. F. Partridge, Appellant.
    Gen. No. 9,519.
    (Abstract of Decision.)

      Heard in this court at February term, 1940;
    opinion filed April 6, 1940;
    rehearing denied May 9, 1940.
    Powers & Powers, for appellant; Hall, Mitchell & Petz, for appellee.
   Opinion by Justice Huffman.

“Not to be published in full.”


text:
    Maurice Darner, Administrator of Estate of Dessie E. Darner, Deceased, and Edna Darner, Appellees, v. Nate Colby and Johnson Oil Refining Company (Johnson Oil Refining Company, Appellant).
    Gen. No. 9,528.
    (Abstract of Decision.)
    Heard in this court at February term, 1940;
    opinion filed April 6, 1940;
    rehearing denied May 9, 1940.
    Hadley & Leren, for appellant; Charles W. Hadley, of counsel; Alschuler, Putnam, Johnson & Ruddy and Sears, O’Brien & Streit, for appellees; Edward F. Streit, of counsel.
   Opinion by Justice Huffman.

“Not to be published in full.”


text:
    Sadie Yeates et al., Appellants, v. School Directors of District No. 38, County of Kankakee and State of Illinois, Appellees.
    Gen. No. 9,531.
    (Abstract of Decision.)
    Heard in this court at February term, 1940;
    opinion filed April 6, 1940.
    Eva L. Minor, for appellants; Charles W. Kurtz and H. H. Whittemore, for appellees.
   Opinion by Justice Huffman.

“Not to be published in full.”


author: Per Curiam.

text:
    William Lattin, Administrator of Estate of Howard Lattin, Deceased, Appellee, v. City of Zion, Appellant.
    Gen. No. 9,508.
    (Abstract of Decision.)
    Heard in this court at February term, 1940;
    opinion filed April 6, 1940;
    rehearing denied May 9, 1940.
    L. Erie Carey, for appellant; J. A. Miller, for appellee; Max Lidschin and Stephen J. Drury, of counsel.
   Per Curiam.

“Not to be published in full.”


author: Opinion by Justice O'Connor.

text:
    Mary B. Sevier, Administratrix of Estate of Albert E. Sevier, Deceased, Appellant, v. Charles P. Megan, Trustee, Appellee.
    Gen. No. 41,095.
    (Abstract of Decision.)
    Heard in first division, first district, this court at February term, 1940;
    opinion filed April 15, 1940.
    Hummer, Van Ness & Yowell, for appellant; John J. Yo well, of counsel; Nelson J. Wilcox and I. C. Belden, for appellee.
   Opinion by Justice O'Connor.

“Not to be published in full.”


text:
    Stuart E. Pierson, Administrator De Bonis Non with Will Annexed of Estate of David Meade Fishback, Deceased, Appellant, v. Louise Fishback et al., Appellees.
    Gen. No. 9,219.
    (Abstract of Decision.)

      Heard in this court at January term, 1940;
    opinion filed April 15, 1940.
    Verlie, Eastman & Schlafly and William G. Vogt, for appellant; Gilbert K. Hutchens, for appellee Louise Fishback; Jack McDonald, of counsel.


author: Opinion by Justice Fulton.

text:
    Lottie Biehl et al., Appellees, v. H. N. Schuyler State Bank of Pana, Illinois, Appellee. First Presbyterian Church of Pana, Illinois et al., Appellants. Oscar Nelson v. H. N. Schuyler State Bank of Pana, Appellees. Intervening Petition of Louisa Clarke et al., Appellants.
    Gen. No. 9,206.
    (Abstract of Decision.)
    Heard in this court at October term, 1939;
    opinion filed April 15, 1940.
    Guy L. Smith and Oscar J. Putting, for appellants; J. H. Fornoff, for certain appellees; Jno. W. Fribley, for certain other appellee.
   Opinion by Justice Fulton.

“Not to be published in full.’’


author: Opinion by Justice Hayes.

text:
    Louise Wist, Administratrix of Estate of Arthur B. Wist, Deceased, Appellee, v. Norman B. Pitcairn et al., Appellants.
    Gen. No. 9,145.
    (Abstract of Decision.)
    Heard in this court at October term, 1939;
    opinion filed April 15, 1940.
    Thompson & Mantensen and Claude M. Swanson, for appellants; N. S. Brown, of counsel; Lindley, Pacey & Johnson, for appellee; Stanley l. Shetler, of counsel.
   Opinion by Justice Hayes.

“Not to be published in full.’’


text:
    In re Estate of Paffi, Incompetent. Joe Menichetti, Appellant, v. Frank T. Hines and H. R. Pool, Guardian Ad Litem for Santi Paffi, Incompetent, Appellees.
    Gen. No. 9,218.
    (Abstract of Decision.)

      Heard in this court at October term, 1939;
    opinion filed April 15, 1940.
    William L. Patton and T. C. Torrence, for appellant; E. W. Beasley, of counsel; H. R. Pool and P. W. Zerwekh, for appellee.
   Opinion by Justice Hayes.

“Not to be published in full.”


author: Opinion by Presiding Justice Wolfe.

text:
    Lewis H. Armstrong, Appellee, v. Ben Sharer, Appellant.
    Gen. No. 9,517.
    (Abstract of Decision.)
    Heard in this court at February term, 1940;
    opinion filed April 26, 1940.
    J. J. Ludens, for appellant; Ramsay, Bull & Yost, for appellee.
   Opinion by Presiding Justice Wolfe.

“Not to be published in full.”


author: Mr. Justice Friend

text:
    Anderson National Bank, Appellant, v. James H. Jacobson, Appellee.
    Gen. No. 41,005.
    Heard in the second division of this court for the first district at the December term, 1939.
    Opinion filed April 2, 1940.
    Opinion modified and rehearing denied May 28, 1940.

      Parker & Clusman, of Chicago, for appellant; Albert E. Hallett, Jr., of Chicago, of counsel.
    Mater, Altheimer & Kabaker and Frank J. Jacobson, all of Chicago, for appellee; Frank J. Jacobson, of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Anderson National Bank of Lawrenceburg, Kéntucky, claiming to be the holder in due course of a promissory note for $4,074, brought suit against James H. Jacobson of Chicago, as its maker and signer, for the face amount of the note, together with accrued interest and costs of suit. Pursuant to a hearing by the court without a jury, judgment was entered in favor of defendant, from which plaintiff appeals.

In view of the defenses interposed a recital of the essential facts is necessary to an understanding of the issues involved. W. D. Mountjoy, the payee of the note involved in these proceedings, lived near Lawrenceburg, Ky., where he had for many years engaged in the training and selling of saddle horses. His neighbor, J. W. Gaines, whom he had known from boyhood, was president of the Anderson National Bank. Mountjoy had dealt with the bank for some 30 years and his accounts were always handled by Gaines personally. On July 8, 1937, the defendant, James H. Jacobson, of Chicago, who had a horse farm at Lake Geneva, Wisconsin, visited Mountjoy, from whom he had been purchasing horses since 1933, at his farm near Lawrenceburg. He purchased one horse known as “Boyal American,” for the sum of $3,500, as evidenced by his note to Mountjoy’s order for that sum. This note was subsequently paid and is not involved in these proceedings. On the same day Mountjoy also showed Jacobson another horse, known as “Mighty King,” a pedigreed animal possessing good qualities but apparently having a split quarter or hoof. Mount-joy prevailed upon defendant to take Mighty King to his farm in Wisconsin and give it expert medical care and attention in an effort to cure the defective hoof, to which defendant agreed. Mount joy at that time owed the bank on several notes secured by a chattel mortgage on all his horses except colts and unregistered animals. Mighty King was included in this chattel mortgage. Jacobson testified that before allowing him to take Mighty King, Mount joy stated that he would have to have Jacobson’s note to show the bank, and that it would help him if a value of $5,000 were placed on the horse'; that he would use the note only as a record to show the bank where the horse had gone; and that if the split hoof failed to heal within a reasonable time he would then return the $5,000 note to Jacobson. Accordingly, Jacobson executed two promissory notes, one for Koyal American, in the sum of $3,500, and one for Mighty King, in the sum of $5,000, and shipped both horses to his farm at Lake Geneva, Wis. The second of these notes was dated July 8, 1937, was due in 90 days, carried interest at the rate of 6 per cent after maturity, and bore the legend on its face “For Mighty King # 14468 Saddle Horse.” Mount joy then indorsed both of these notes and sought to discount them at the Anderson National Bank. The bank was unwilling to actually purchase or discount them, because it was unable to get a satisfactory credit rating on Jacobson, but it did lend Mount joy $3,000 and took the two notes as collateral security for the loan. When the notes fell due on October 5,1937, Jacobson paid off the $3,500 note, which amount was applied by the bank, in payment of Mount joy’s $3,000 loan and the $500 excess was placed to his credit.

November 2,1937, Mount joy again sought to discount the remaining $5,000 note, but the bank refused so to do because of its inability to secure a satisfactory credit rating on Jacobson. It did, however, make a new loan of $2,600 to Mountjoy on his personal note, and took the $5,000 Jacobson note as collateral security. The $2,600 note was to fall due January 11, 1938, and $2,570 of the $2,600 loan was immediately placed to Mountjoy’s credit and the $30 discount was taken by the bank.

J. W. Gaines, president of the Anderson National Bank, was an experienced bookkeeper and had direct supervision of the bank’s books. The transaction of November 2,1937, as reflected in the books of the bank, showed the new loan to Mountjoy on November 2nd, secured by the original Jacobson note as collateral, and the amount of the loan, less $30 discount, was placed subject to Mountjoy’s order on the bank’s books. Shortly before Mountjoy’s $2,600 note fell due in January, 1938, the bank sent the original $5,000 Jacobson note, which it then held as collateral, to the Continental Illinois Bank & Trust Company in Chicago, for collection, but payment was refused and it was protested and returned to plaintiff. Plaintiff bank then learned that Jacobson had previously made a direct payment of $1,000 to Mountjoy on this $5,000 note, and accordingly it sent the note back to the Continental Bank with the request to secure a renewal note from Jacobson for the corrected balance of $4,000, plus accrued interest. Jacobson complied with the request and executed a renewal note in the sum of $4,074, and received back his original $5,000 note marked “Cancelled by renewal.” The renewal note was likewise payable to the order of Mountjoy, was dated January 6, 1938, became due April 6, 1938, and bore the same legend “For Mighty King,” etc., as did the original $5,000 note. Sometime thereafter Mountjoy indorsed the $4,074 renewal note, and on February 2, 1938, he requested the bank, which was then holding it as substituted collateral on Mountjoy’s $2,600 personal note, to discount or purchase the new note. He called Gaines’ attention to the fact that Jacobson’s credit had now been established through his payment of the $3,500 note and of $1,000 on account of the original $5,000 note, and in compliance with his request the bank on February 2, 1938, actually purchased and discounted the new $4,074 Jacobson note, upon which this suit is predicated. The note was purchased before maturity and was actually paid for in full by canceling and returning to Mountjoy his personal note for $2,600, crediting the balance of $1,465 against another note on which Mountjoy then owed the bank some $11,800, and which was secured by chattel mortgage on a number of Mountjoy’s horses. At the same time several horses were released from the lien of the chattel mortgage then held by the bank. This transaction of February 2, 1938, was reflected on the books of the bank by showing that Jacobson was as of that date accepted as the principal debtor and that Mountjoy’s liability was reduced to that of a mere indorser; also that Mountjoy’s $2,600 note was paid off with part of the proceeds of the $4,074 note and the balance of $1,465 applied against the other $11,800 note which was secured by chattel mortgage on other horses.'

The new Jacobson note for $4,074 became due April 6, 1938. When presented through plaintiff’s Chicago correspondent Jacobson refused to pay it and it was returned to the Anderson National Bank. Gaines immediately wrote Jacobson demanding payment and receiving no reply called him on the long distance telephone and advised him that the bank was holder of the note in due course, for value, without notice of any infirmities, and insisted on payment. Jacobson then advised Gaines that the delivery and payment of the note depended upon the healing of Mighty King’s hoof and refused to pay. Gaines testified that this conversation was the first notice to the bank of any alleged infirmity in the instrument or any defect in title of the person negotiating it; that he was the only one at the bank who had ever handled Mount-joy’s account; that he had no conversation with Mount-joy concerning the transaction upon which the original $5,000 note was predicated beyond Mountjoy’s statement that he had sold two of his horses to Jacobson and had received two notes for a total of $8,500. Gaines stated that he did not inquire further into the transaction, did not ask Mountjoy what the legend “Mighty King’ ’ on the note meant, and knew nothing of the purported agreement between Jacobson and Mountjoy whereby the original $5,000 note was not to be negotiated until so advised by Jacobson himself after the maturity of the $4,074 renewal note.

Defendant relies on three principal defenses: (1) that under the terms of the sale of Mighty King payment was conditional upon the healing of the split quarter, or hoof, with the right to return the horse and receive back the consideration paid therefor in the event that the injury did not respond to treatment within a reasonable time; (2) the conditional delivery of the note to Mountjoy for the purpose of exhibiting it to the bank to show that he had received something of value therefor, and to account for the horse, which was included in the chattel mortgage held by the bank, with the express understanding, however, that the note was not to be negotiated or sold, and the consequent violation of this agreement by Mountjoy; and (3) failure of the bank to give Mountjoy any such valuable consideration for the note as would support a judgment in its favor.

Defendant’s original answer admitted “that on or about January 6, 1938, he delivered his promissory note to W. D. Mountjoy.” However, upon trial his counsel adduced evidence, over plaintiff’s objection, to support the defense of a conditional delivery. The cause was tried November 17, 1938. Thereafter the court took the case under advisement on briefs filed by the respective counsel. February 27, 1939, more than three months thereafter, but before final judgment was entered against plaintiff March 24,1939, defendant filed an amended and supplemental answer. Plaintiff asserts that it had no notice of defendant’s intention to file an amended answer, and the record is silent on the subject. Defendant’s counsel insist, however, that leave was had in open court, and that through error of the clerk, the order was not entered. The amended answer interposed the defense of a conditional delivery. Aftér the appeal was perfected plaintiff made a motion in this court to strike the amended answer, on the ground that it had been filed without notice to plaintiff and without leave of court, and its counsel argue that the amended answer and evidence in support thereof had no place in the record and should not be considered in determining the issues between the parties. We denied the motion, however, because in his countersuggestions defendant asserted that leave of court had been obtained. In the view that we take of this case the defense of conditional delivery is not of controlling importance.

Plaintiff’s suit is predicated upon a negotiable instrument on which it sues as the holder in due course, without notice of any infirmities and for which it claims to have paid a valuable consideration. The note is regular on its face and has all of the characteristics and requirements of a negotiable instrument; it is unusual only in respect to the legend, “For Mighty King,” etc., which appears thereon. Defendant’s counsel say that this legend indicates that the note was given as part of the transaction related by defendant and they argue that because of the long and intimate relationship between Gaines and Mount joy, it is inconceivable that Mount joy did not apprise Gaines of the circumstances under which the note was given and explain to him the meaning and significance of the legend. However, according to the uncontroverted evidence adduced upon the hearing, it is clear that Gaines neither inquired nor was he informed of the circumstances relating to the alleged conditional delivery of the note, or the conditional sale of the horse because of its physical defect. Moreover, it is entirely reasonable to assume that since many of Mountjoy’s horses, including Mighty King, were included in a blanket chattel mortgage held by the bank, some of which were from time to time released from the lien of the mortgage as payments were made by Mount joy on his several notes held by the bank, that the legend was placed upon the face of the note merely for purposes of identification and so as to account for the horse when the sale to Jacobson was made. Gaines would have been fully justified in so treating the legend, if he noticed it at all, without any suspicion arising in his mind as to its meaning. Certainly, the placing of the legend on the note does not have the effect of destroying the negotiability of the-note, nor would it in the absence of evidence justify the court in assuming that Gaines knew or had been advised of the conditional arrangements attending the sale of the horse and the delivery of the note.

Under par. 79, Title I, Article IV of the Illinois Negotiable Instruments Act (sec. 59, ch. 98, Ill. Kev. Stat. 1939 [Jones Ill. Stats. Ann. 89.079]), every holder of a note is deemed prima facie to be a holder in due course. Defendant does not deny that he signed the note and the evidence discloses without dispute that Mount joy indorsed the instrument before maturity. Likewise there is a presumption in the first instance that the delivery of the note held by plaintiff was valid and intentional, and under par. 36, sec. 16, Title I, Article I of the Negotiable Instruments Law [Ill. Rev. Stat. 1939; Jones Ill. Stats. Ann. 89.036], “where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved.” This placed the burden of proving conditional delivery upon defendant. He sought to sustain this burden by evidence tending to prove that Mount]oy merely wanted to exhibit the note to the bank, so as to show that he had received something of value therefor and. to account for the horse, but with the understanding that the note was not to be negotiated or sold. This testimony had reference to Jacobson’s original $5,000 note. However, there is no testimony whatsoever to indicate that the delivery of the $4,074 renewal note was in any way conditional, or that its acquisition by plaintiff was in violation of any agreement. It must be assumed that when the renewal note was given, some four months after the $5,000 note had been delivered to Mountjoy, that Jacobson then knew that it was being used for some purpose other than as a mere inventory record, especially since he had in the interim paid $1,000 on account of the indebtedness to Mountjoy. Upon this state of the record, we are impelled to hold that defendant failed to sustain the burden cast upon him of proving that plaintiff was not a holder in due course. Plaintiff’s uncontroverted evidence, without the aid of any presumption, shows the bank to have been a holder in due course.

Under par. 72, sec. 52, Title I, Article IV of the Negotiable Instruments Law [Ill. Rev. Stat. 1939; Jones Ill. Stats. Ann. 89.072], a holder in due course is one who has taken the instrument under the following conditions: (1) That the instrument is complete and regular upon its face; (2) that he became the holder of it before it was overdue, and without notice that it has been previously dishonored, if such was the fact; (3) that he took it in good faith and for value; and (4) that at the time- it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.

We have already indicated our reason for concluding that the note was complete and regular upon its face.

As to the requirement that the holder in due course must have been the holder of the note before it was overdue, the record shows that the renewal note. of $4,074, upon which suit is based, was dated January 6, 1938, and was not due by its terms until April 6, 1938. It was acquired by plaintiff about the time when it was made, and long before its due date.

Nor can the good faith of the bank in acquiring the note be questioned, under the evidence adduced upon the hearing. Defendant’s answer does not raise this issue and therefore plaintiff was not obliged to prove that it had acquired the note in good faith, but if this were an issue we should be obliged to hold that there were no suspicious circumstances of which the bank or its president had any knowledge from which the bank’s good faith could be questioned. The courts have uniformly held that mere suspicion or even negligence on the part of the taker are nevertheless consistent with good faith and are not sufficient to prevent the indorsee from becoming a holder in due course within the meaning of the statute. (Kavanagh v. Bank of America, 239 Ill. 404; Bradwell v. Pryor, 221 Ill. 602; Page v. W. F. Hallam & Co., 212 Ill. App. 462.)

As to the fourth condition imposed by the statute it is clear that neither Gaines nor the bank had notice of any infirmity in the instrument or defect in Mount joy’s title thereto. Gaines stated positively, on both direct and cross-examination, that he did not discuss the circumstances of the sale with Mount joy, and that the presence or purpose of the legend “For Mighty King,” etc., was not mentioned or called to his attention; Mount joy merely told him that he had sold two horses to Jacobson, for which he took notes aggregating $8,500. Defendant’s counsel argue that since Mount-joy was .a resident of Kentucky they could not compel his response to a subpoena at the trial and that plaintiff, his friend and neighbor, should have produced him, but since plaintiff was suing as a holder in due course, without notice of any infirmities, on a note for which it claimed to have paid a valuable consideration, Mountjoy’s testimony was not necessary to prove a prima facie case under the allegations of the complaint.

In his original answer defendant interposed the defense that there was a failure of consideration between the original parties to the note, in that the horse’s hoof did not respond to treatment, and he was therefore justified in rescinding the transaction and was entitled to the return of the note. This defense would of course be available as against a party who was not a holder in due course, or as between the original parties to the transaction where the note had not been negotiated, but in view of our conclusion that the bank was a holder in due course, without notice of any infirmities, this defense is not applicable to the circumstances of this case. So far as the record discloses, defendant still has Mighty King. According to the evidence he spent considerable time and effort in trying to heal the split hoof, but without avail. In his answer he proffers the return of the horse, but there is no indication that any such offer was made until after suit was brought. In any event, as far as this record shows, plaintiff knew nothing of the physical defect of the horse, nor of the conditions under which the sale was made between the parties.

The remaining defense relates to the consideration paid by plaintiff for the $4,074 note upon which this action was brought. Under secs. 25, 26, pars. 45, 46, Title I, Article II of the Negotiable Instruments Law [Ill. Rev. Stat. 1939; Jones Ill. Stats. Ann. 89.045, 89.046], value is “any consideration sufficient to support a simple contract.” We have already related the circumstances under which this note was acquired by the bank. It was given as a renewal note and the original $5,000 note was returned to defendant marked, “Cancelled upon renewal.” This in itself constituted the giving of value. In Elgin Nat. Bank v. Goeke, 295 Ill. 403, it was held that an indorsee who takes a note as collateral security for a pre-existing debt is a taker for value, and in Zollman v. Jackson Trust & Savings Bank, 238 Ill. 290, the court held that the substitution of a note for other collateral constitutes the giving of value. Moreover, this transaction as reflected in the books of the bank, as hereinbefore described, shows that the bank gave sufficient value for the note to support recovery thereon.

In view of the conclusions herein expressed the judgment of the superior court should be reversed and it is so ordered. Judgment is entered here in favor of plaintiff and against defendant for the face amount of the note, $4,074, together with interest at 6 per cent from January 6,1938, to date, and the costs of suit.

Judgment reversed and judgment here for plaintiff and against defendant as indicated.

Sullivan, P. J., and Scanlan, J., concur.