text:
    American Trust and Safe Deposit Company, Complainant, v. Warren B. Eldred et al., Defendants. Anna Mae Blackstone and Aaron Soble, Cross Complainants and Appellees, v. American Trust and Safe Deposit Company et al., Cross Defendants. Appeal of American Trust and Safe Deposit Company, Appellant.
    Gen. No. 36,007.

      Opinion filed June 28, 1932.
    Kirkland, Fleming, Green & Martin, for appellant ; Joseph B. Fleming, William H. Symmes, Emil F. Meier and Frank Bloom, of counsel.

      Aaron Soble and William Feldman, for appellees.
   Mr. Presiding Justice Keener

delivered the opinion of the court.

Appellant, American Trust and Safe Deposit Company, a corporation, as trustee, filed its verified bill to foreclose a first mortgage executed by Warren B. Eldred and Edith M. Eldred, securing $125,000. July 21, 1931, a decree of foreclosure was entered. October 22, 1931, Anna Mae Blackstone, individually, and Aaron Soble as trustee, filed their cross-bill praying for the appointment of a receiver to collect the rents. February 27, 1932, after the American Trust and Safe Deposit Company had filed an answer, the chancellor appointed a receiver. This interlocutory appeal followed.

The decree of foreclosure found the indebtedness due under the trust deed amounted to $128,957.83, and that it is a lien upon the premises and upon the rents, issues and profits thereof; that on April 10, 1930, one Florian Dwielewicz. executed and delivered his principal notes amounting to $5,000, and to secure them executed a trust deed to Aaron Soble as trustee; that said trust deed is a junior lien on the indebtedness due appellant and subject also to a second trust deed securing $33,333, and also subject to a third mortgage dated August 27,1929, and that there is due Anna Mae Blackstone $5,664.85. The decree also recites that the court reserves and retains jurisdiction of the subject matter and of the parties and for the appointment of a receiver to collect the rents, issues and profits of the premises and for the administration of the property in the hands of such receiver, the settlement of its accounts, and the discharge of said receiver.

The cross-bill recited the filing of the original bill and the entry of the decree of foreclosure and that the rents were being collected by the appellant; That no accounting was being made for said rentals and that the rights of the appellant had been merged in the decree of foreclosure, and prayed that a receiver be appointed to collect the rents, etc., to abide the order of the court.

The verified answer of the appellant to the cross-bill averred that November 12, 1930, Anna Kieradlo, the owner of the fee title of the premises, executed her surrender of possession to the appellant as trustee, in which she authorized it as trustee to enter into and take possession of said premises, with all the rights, powers and duties mentioned in said trust deed and by said agreement she assigned and set over to the appellant as trustee, all the rents due November 12, 1930, or which might thereafter become due, and that said trustee might remain in possession, notwithstanding the entry of any decree of foreclosure, and that it should have full power to remain in possession until the expiration of the period of redemption from any foreclosure sale; that the appellant as trustee took possession under said trust deed immediately after the execution of the surrender and has been in possession since November 12, 1930. Appellees in their brief admit that Anna Kieradlo on November 12,1930, owned the property, and had possession and on that day surrendered possession to the appellant as trustee.

The trust deed to appellant pledged the rents, issues and profits from the renting and leasing of the premises as additional security for the -payment of the principal indebtedness, and that this pledge should continue until the period of redemption expires and a deed issue under a foreclosure sale, and also provided that in case of a default the trustee might take possession of the premises and retain such possession until the end of the period of redemption.

The record discloses that after the entry of the decree of foreclosure the property was twice advertised for sale pursuant to the decree, but by reason of the fact that no bidders appeared it was necessary to adjourn the sale, so that at the date of the appointment of the receiver the status of the proceedings was that a decree had been entered but no sale pursuant thereto had been held.

This appeal presents the question whether a trustee under a first mortgage, lawfully in possession of the mortgaged premises, may be dispossessed after the entry of a foreclosure decree but before the sale by a receiver appointed upon motion of a junior lienor.

While the appointment of a receiver is a matter resting in the discretion of the court it will, as a general rule, take care not to interfere with the rights of a person holding a prior legal interest in the property. (Wiswall v. Sampson, 14 How. [U. S.] 52, 64.) Receivers are not appointed to keep persons out of their rights. (Odell v. H. Batterman Co., 223 Fed. 292, 297.) A mortgagor is the legal owner of the mortgaged premises as against all persons except the mortgagee and his assigns, and is regarded as the owner of the land for all beneficial purposes, subject only to the rights of the mortgagee. After condition broken, however, the mortgagee is, as between himself and the mortgagor, the owner of the fee. The mortgagor has the right of possession until default in the terms of the mortgage, but he cannot interfere with the right of the mortgagee to enter for condition broken. After condition broken, the mortgagee has the right to possession against the mortgagor or anyone claiming under him by any right (Rohrer v. Deatherage, 336 Ill. 450), and such possession, when taken, is a legal possession (Kilgour v. Gockley, 83 Ill. 109), and the mortgagee has the right to hold the possession until his debt is satisfied (Dickason v. Dawson, 85 Ill. 53), and the fact that the mortgagor voluntarily transfers the possession to the mortgagee does not impair his rights as mortgagee (Dickason v. Dawson, supra), and as against a mortgagee in possession holding the premises as security for its'bondholders after default, the appointment of a receiver at the instance of a junior lienor is improper. (Altschuler v. Sandelman, 264 Ill. App. 106; Consumers Bond & Mortgage Co. v. Sadin, 266 Ill. App. 141; Van Ness v. Arado, 257 Ill. App. 56, and cases cited. See also Chicago Title & Trust Co. v. Smith, 158 Ill. 417; Wiltsie on Mortgage Foreclosure [4th Ed.], vol. 1, sec. 576.)

The appellees concede the rules thus announced but contend those rules are not controlling in the instant case, and they argue that the result of the foreclosure decree was to merge the trust deed into the decree, and cite cases in which the court held that when a decree is rendered the instrument upon which the proceeding is based becomes merged in the decree and loses all of its validity. We have examined these cases and are of the opinion they are not applicable in the instant case. White v. Haffaker, 27 Ill. 349, and Wayman v. Cochrane, 35 Ill. 152, cited by appellees, were not foreclosure suits. There "is a distinction between a foreclosure decree and a money judgment or decree. A foreclosure decree is not a money decree but provides that the property described in the decree be sold to satisfy the debt. It is true Schaeppi v. Bartholomae, 217 Ill. 105, was a foreclosure proceeding, but the trust deed in that case did not contain a pledge of the rents and the only security given for the debt was the land. In the instant case the trust deed pledged the rents as additional security and the decree provided that the amount due appellant was a lien upon the rents. That lien upon the rents was not extinguished by the entry of the decree alone. It must be followed by a sale of the land. In Seligman v. Laubheimer, 58 Ill. 124, 126, it was said: “Without determining' the legal effect of the mere foreclosure, we do hold that the decree, followed by a sale of the premises, the purchase, and the subsequent acts of the first mortgagee, extinguished his mortgage lien.” In Ogle v. Koerner, 140 Ill. 170, 179, the court said: “A deed of trust in the nature of a mortgage, vests in the party secured a lien upon the mortgaged premises. By virtue of that lien the mortgagee is entitled to have the mortgaged property sold under a decree of. foreclosure and the proceeds of the sale applied to the payment of the debt secured. This is the mode provided by law for the enforcement of the lien, and when the lien has been once enforced by the sale of the property, it has, as to such property, expended its force and accomplished its purpose, and the property is no longer subject to it.” In Davis v. Dale, 150 Ill. 239, 243, the court said: “The mortgagee or cestui que trust had the right to have the security foreclosed and the property sold, and the proceeds applied in payment of the secured debt. But when this has been done, and the lien enforced by a sale of the property and the proceeds applied, the mortgage or trust deed has expended its force, and the property is no longer subject to its provisions.” In Bogardus v. Moses, 181 Ill. 554, 559, the court said: “When the lien of the mortgage has been enforced by the sale of the property, and such sale has realized the whole amount of the debt, interest, and costs which are due, the mortgage has expended its force, and the property is no longer subject to its provisions.” And in Powell v. Voight, 261 Ill. App. 127 (affirmed by our Supreme Court April 23, 1932) we said: “Where there is a deficiency, a pledge of the rents during the redemption period is not extinguished by the foreclosure and sale, and the owner of the deficiency as well as the judgment debtors is entitled to have it satisfied out of such rents. (Citing cases.) After the foreclosure sale and entry of the deficiency decree, the trust deed remained in force as to the pledge of the rents during the redemption period only for the purpose of satisfying the deficiency decree.”

Our conclusion is that the chancellor erred in appointing the receiver and the order is therefore reversed.

Reversed.

Scanlan and Gridley, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Gridley

license: Public Domain

text:
    The People of the State of Illinois ex rel. Oscar Nelson, as Auditor of Public Accounts, Complainant, v. Binga State Bank et al., Defendants. Edward H. Morris, Receiver of Binga State Bank, Appellee. Amended Intervening Petition of Judge H. Parker, Appellant.
    Gen. No. 35,747.
    Opinion filed June 28, 1932.
    Rehearing denied July 11, 1932.
    A. M. Burroughs, for appellant.
    James B. Cashin, for appellee; Thomas P. Harris, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

During December, 1931, there was a hearing upon the separate amended intervening petitions, filed in this cause, of Judge (a name and not a title) H. Parker and the Parker House Sausage Company, a corporation. To the petitions Edward H. Morris, as receiver of the Binga State Bank, had filed separate answers. On December 9, 1931, the court ordered and adjudged that the petitions, as to the crediting of $6,367.50 upon the unpaid note of $8,000 of said Parker in the receiver’s hands as an asset of the Bank, be denied and dismissed for want of equity. From the order or judgment Parker prayed for and perfected the present appeal. The Sausage Co., although it also prayed for an appeal, did not perfect it.

After the filing here of the transcript of the record, the receiver (appellee) made two motions: (1) To strike certain exhibits from the transcript, and (2) to dismiss the appeal. Both motions were denied.

The following facts in substance appear from the evidence: In the year 1922, Parker, individually, was engaged in Chicago in the manufacture and sale of sausages, under the trade name of “Parker House Products.” In December, 1922, he opened a checking account in the Binga State Bank and checks were printed for his use, bearing the label “Parker House Products, Mfgr. of Parker House Sausage.” On November 16, 1926, for money loaned to him, Parker executed and delivered to the Bank his two notes— one for $8,000 and the other for $4,000, each secured by trust deeds running to the Chicago Title & Trust Co., as trustee, and executed by Parker, a bachelor, and conveying his factory and the ground upon which it stood. The note for $8,000 was payable three years after date. The trust deed securing it was a first mortgage, and the trust deed securing the $4,000 note, maturing in one year, was subject thereto. The money loaned by the bank was for use by Parker in improving his property and further equipping his factory. On April 18, 1927, he caused an Illinois corporation to be formed under the name of “Parker House Sausage Company, ’ ’ with capital stock of $25,000. He subscribed for and became the owner of $24,800 of the stock, and Ella Cage, his mother, and Evelyn Anderson, his sister, each subscribed for and became the owners of $100 of the stock. Parker paid for his stock by transferring to the company his factory, machinery and equipment, the land occupied by the factory and the good will of his business. The other two stockholders paid for their stock in cash. At the first meeting of the stockholders the three were elected directors of the company, and they in turn, at the first meeting of the directors held on May 1, 1927, elected Parker as president, Mrs. Anderson as secretary and Mrs. Cage as treasurer. By-laws also were adopted and the annual salaries, payable in weekly instalments, of Parker as president, and of Mrs. Anderson as secretary, were fixed. About May 5, 1927, the bank was notified of the incorporation, and, at Parker’s request, it changed the account to read “Parker House Sausage Company.” Thereafter all deposit slips were made out in the company’s name and Parker, alone, signed all checks drawn on the account. He did not thereafter have any individual checking account with the bank. During October, 1927, the company delivered to the bank its note for $4,000, secured by a second mortgage on said factory and land, and the bank canceled the individual note of Parker for $4,000, dated November 16, 1926. There still remained in the bank Parker’s individual note of $8,000, which matured on November 16, 1929, and which was secured by said first mortgage, and upon which no payments had been made. The company’s trust deed securing the new $4,000 note, dated October 5, 1927, is signed by Parker as “president,” and is made subject to the trust deed of Parker individually, dated November 16, 1926, securing Parker’s said note of $8,000, and therein the company “covenants and agrees to pay all prior incumbrances.” Between May 5, 1927, and July 31, 1930, the company maintained an active deposit and checking account with the bank. The interest on Parker’s $8,000 note, as it matured, was paid to the bank by check drawn on the company’s said account. When the note matured on November 16, 1929, Parker, individually, renewed it for an additional three years. The expenses incurred for the renewal were paid by checks drawn on the company’s account with the bank.

The bank was closed by the auditor of public accounts on July 31, 1930, and Edward H. Morris was appointed receiver of it on November 26, 1930. When it was closed there was a balance in said checking account to the credit of the .Sausage Co. of $6,367.50. Subsequently in the above entitled cause the company filed a petition, signed in its name by “Judge H. Parker, President,” and attested by the signature of Mrs. Anderson, its secretary, and with the corporate seal attached, and praying for an order on Morris, as receiver, “to credit the sum of $6,367.50, on deposit in the commercial account of the Parker House Sausage Company, to the note of Judge H. Parker for $8,000, dated November 16,1926, and secured as aforesaid.” In the petition it is represented, inter alia, “that when said trust deed and note were executed by Judge H. Parker, he was the owner of said property, and .after the incorporation of the undersigned, this property (subject to the payment of said mortgage) was sold and transferred to the undersigned and is now its property; that when the Binga State Bank closed on July 31,1930, the undersigned (i. e., the company) had on deposit with said Bank, in a commercial account, the sum of $6,367.50”; and that Morris, as receiver, “has refused to credit the note and trust deed of Judge H. Parker on said property, claiming that said note and mortgage was. not the note and mortgage of your petitioner (i. e., the company), and therefore not susceptible to set off.”

Subsequently, on April 17, 1931, by leave of court, the Sausage Co. was given leave to file an amended petition by joining Parker, individually, as a copetitioner. Such petition was filed, and on May 8, 1931, the demurrer of the receiver to it was sustained as to form, and, by leave of court, Parker was given leave to file, and he filed, an amended petition. To this petition the receiver filed a general demurrer. On June 12, 1931, on Parker’s motion, the court gave him leave to withdraw the amended petition and to file another amended petition, which was filed, signed and sworn to by Parker. After setting forth certain facts as to the execution of the two notes, secured by said trust deeds, and as to the organization of the Sausage Co., etc., the petition alleged:

That when the Binga State Bank closed on July 31, 1930, “Judge H. Parker, under the name and style of ‘Parker House Sausage Company,’ had on deposit in the bank in a commercial account the sum of $6,367.50, and the account is the personal account of Judge H. Parker, because the Parker House Sausage Co. is not designated as a corporation, and the deposit should, therefore, be credited on the note of Judge H. Parker; that when the Sausage Co. filed its original petition with this court, it did so by its officers and upon information and belief that the account in said bank was in the corporation, and did not learn that all withdrawals were made by Parker, individually, until April 10, 1931, when it discovered that the account was not in the name of the corporation, but in the name of Parker individually, and, therefore, subject to set-off against the note of Judge H. Parker”; that Morris, as receiver, “has refused to credit” the note and trust deed of Parker with said sum of $6,367.50, “contending that said account is the account of the Parker House Sausage Co., a corporation, and not the personal account of Parker and cannot be set off against the personal note of Parker.”

The “bill of exceptions,” certified to by the trial judge, discloses that at the conclusion of said hearing on December 9, 1931, the court found that “from the evidence heard, the money on deposit belongs to the corporation,” and thereupon denied the said amended petitions and dismissed them for want of equity, as first above mentioned.

After a careful review of the present transcript we are of the opinion that said finding of the court is fully sustained by the evidence, and that the dismissal of the petitions for want of equity is not contrary to the law, as here urged by Parker’s counsel. In 7 Corpus Juris, sec. 535, p. 745, it is said: “Only a direct and ascertained indebtedness can properly be set off against a claim due to a bank, and where the debts are not due to and from the same persons in the same capacity the right of set-off does not exist.” In 1 Morse on Banks and Banking, 5th Ed., sec. 334, p. 627, it is said: “The rules of law as to the right of set-off between the bank and its depositors are not different from those applicable to other parties. The debts -must be between the same parties and in the same right. A deposit due to A, as executor, cannot be offset against A’s personal debt, nor vice versa.” In Coates v. Preston, 105 Ill. 470, 472-3, it is said: “It is a familiar principle that debts, to Tie the subject of set-off, must be mutual between the parties to the action. That is not the case here. The debt offered to be set off is the debt of the firm against the claim of one of the individual partners. That cannot be done, and so this court held in Hilliard v. Walker, 11 Ill. 644.” In International Bank v. Jones, 119 Ill. 407, 410, it is said: ‘ ‘ The general rule is, that a bank has a right of set-off, as against a deposit, only when the individual, who is both depositor and debtor, stands, in both these characters alike, in precisely the same relation and on precisely the same footing, towards the bank, and hence an individual deposit cannot be set off against a partnership debt.” (See, also, Stuart v. Lott, 304 Ill. 170, 175.) These principles are applicable to the present case. Here it clearly appears that Parker, as an individual, is indebted to the bank on his unpaid note for $8,000; that the Sausage Co., of which he is president and the owner of a majority of its stock, had on deposit in the bank on July 31, 1930, when it was closed by the auditor of public accounts of this State, the sum of $6,367.50, which the bank owed to said company; and that Parker, as an individual, prayed to have said sum, belonging to the company, applied to the payment pro tanto on his said note, an asset of the bank in the receiver’s hands. The court properly held, in our opinion, that this could not be done. Parker and the corporation are separate legal entities pnd the debts are not between the same parties or in the same right.

The order or judgment of the circuit court of December 9, 1931, denying and dismissing the said amended petitions is affirmed.

Affirmed.

Keener, P. J., and Scanean, J., concur.


text:
    Amanda L. Prehn, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 35,786.
    Opinion filed June 28, 1932.
    Rehearing denied July 11, 1932.
    Hoyne, O’Connor & Bubinkam, for appellant.
    Ward & Kreitzer, for appellee; Gilbert O. Volice and Harry K. Ward, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

In an action of the first class in assumpsit, commenced on May 8, 1931, and based upon defendant’s certificate or policy of accident insurance, there was a trial without a jury in December, 1931, resulting in the court finding the issues for plaintiff, assessing her damages at $1,000, and entering judgment in that sum against defendant. This appeal followed.

In plaintiff’s statement of claim she alleged that on December 31, 1924, Fred B. Prehn' entered into an insurance contract (copy attached) with defendant; that all premiums thereon were paid; that the contract provided that in the event that Prehn (the insured) should die as the result of and within 90 days from an accident, defendant would pay to the named beneficiary (plaintiff, wife of insured) the sum of $1,000; that on September 12, 1930, Prehn “got up quickly from a chair in a switch shanty of the Chicago Rapid Transit Co.,”- located.at Desplaines avenue in Forest Park, Illinois; that in so doing he “ruptured his spleen”; that as the result of the accident he died on September 17, 1930 (five days later); that plaintiff as beneficiary is entitled to receive the sum of $1,000; that she has frequently demanded of defendant the payment of said sum; but that defendant has refused and still refuses to pay the same, etc.

It appeared on the trial that defendant had issued a “Group Policy” of accident insurance, covering employees of the Chicago Rapid Transit Co., and also had issued. certificates to employees, including the particular certificate, No. 3745, to Prehn on December 31,1924. By agreement a copy of the Group Policy was introduced in evidence at the same time that plaintiff introduced the original certificate sued upon. The terms, conditions and limitations with respect to the insurance as contained in the Group Policy are substantially the same as mentioned in said certificate, in which on its face it is stated that, subject to the terms and conditions of Group Policy No. 26, Prehn is insured for $1,000, “against the results of bodily injuries sustained while insured under said policy and caused directly and independently of all other causes by violent and accidental means, to wit: If such injuries shall, within ninety (90) days from the date of accident, result in any one of the losses named in the following schedule, the Metropolitan Life Insurance Company will pay the amount specified in such schedule.”

Then follows the schedule in which it is stated that for “loss of life” the full amount ($1,000) will be paid; and it is further stated that “indemnity for loss of life of the insured is payable to Amanda L. Prehn, beneficiary,” and that “certain limitations in said Group Policy are described on the last page hereof,” and that ‘ this certificate shall be void if any premiums be not paid when due.” On the back or last page of the certificate are stated, among others, the following “limitations”:

“This insurance shall not cover . . . accident, injury, death or other loss caused wholly or partly by disease or bodily or mental infirmity or by medical or surgical treatment thereof, or by hernia, ptomaine or by bacterial infection (except only septic infection of and through a visible wound accidentally sustained).”

In defendant’s affidavit of merits, sworn to by its authorized agent, one of the mentioned defenses is that due and proper notice and proofs of loss were not given to defendant. On the trial plaintiff’s evidence showed the contrary to be the fact and this defense was abandoned by defendant. The only other mentioned defenses in the affidavit are (1): That the insured’s death “was not caused as a result of bodily injuries sustained while insured, or caused directly and independently of all other causes by violent and accidental means,” and (2) that said death “was contributed to or caused by other causes than violent and accidental means.”

On the trial plaintiff’s witness, E. E. McFadden, testified in substance that during and prior to September, 1930, he was employed by a railroad company at night as a towerman or switch tender, and Prehn as a collector of fares on trains by the Chicago Rapid Transit Co.; that they frequently saw each other in the same cabin or shanty; that both usually, worked each night from about midnight until about 6 o’clock a. m.; that shortly after midnight and early in the morning of September 12, 1930, both were in the shanty and Prehn was waiting for a train to make collections; that it was warm and Prehn was sitting in a chair which was tilted back against the sill of an open window; that the witness called Prehn’s attention to the fact that a train was coming and Prehn got np from the chair, ‘ a little faster than a fellow ordinarily would,” and walked out of the door; that “he arose by letting all four legs of the chair hit the floor”; that the witness and Prehn were afterwards during the night frequently together in the shanty; that Prehn complained of his back hurting him; that he continued to perform his duties until about 6 o’clock a. m., when he ceased working and left the shanty; and that the witness did not thereafter see him alive.

Plaintiff’s witness, Rev. Ira L. Livingston, a Presbyterian minister, living in Forest Park, Illinois, and a friend of Prehn, testified in substance that he had known Prehn for about four years and frequently saw him; that on the morning of Saturday, September 13, 1930, he saw him in bed at his home; that he was apparently suffering intensely; that he “would writhe in bed and put his hand on his back” and at times exclaim “this is terrible”; that prior to this time and during the month of September the witness had seen him four or five times, and noticed nothing unusual in his conduct, and he “appeared to be going about in the usual way”; that prior to this visit he had “never known him to have a sickness”; that, however, “on June 14, 1930,” he “fell from a scaffold while painting the church”; that the scaffold was not more than 12 or 14 feet high; that the witness saw him “playing baseball” on an evening about 10 days after his fall from the scaffold; that he appeared vigorous at the time; and that Prehn was a large man and weighed about 225 pounds.

Plaintiff’s witness, Dr. Chester W. Trowbridge, a physician and surgeon of extensive experience and who attended Prehn at his home and at the West Suburban Hospital in Oak Park, Illinois, from September 13 until September 17, 1930, when he died, testified in substance that he first saw him in bed at his home; that he complained of severe pains in the “right sacro-iliac region” and other pains in the abdominal region; that he had a normal temperature, a normal pulse and a slight abdominal rigidity; that his pains were so severe that the witness was “almost unable to move him for examination”; that he administered morphine to relieve the pain and gave instructions for treatment by his wife; that on the same evening (September 13) he was again summoned to the home and found the same symptoms; that upon inquiring as to the probable cause, Prehn told him (referring to said morning) that “he had been leaning back in his chair, that in his haste to arise from the chair he had felt a pain in his back, which had increased, and that he had become worried as time went on”; that upon further inquiry Prehn “recited an incident of his falling off a scaffold or ladder while painting a church”; that the witness called twice on the second day in the morning and in the evening; that in the evening Prehn’s “temperature had risen to 103 and he was decidedly worse”; that on the following day he was with difficulty removed to the West Suburban Hospital; that thereafter further treatments were had and several other physicians and surgeons connected with the hospital were called in consultation; that examinations were made of the abdominal region to see if there was evidence of acute abdominal disease and X-rays were taken “of the hip and sacroiliac region to see if there was a fracture and all this was negative”; that, finally, on September 17, “the patient’s condition became so serious and his abdomen so distended that we decided that an explorative operation was imperative”; that the patient “was semiconscious and a local anaesthetic was given”; that with the assistance of two physicians and internes and nurses, the witness performed an operation; that the patient’s abdomen was opened and “we found a markedly distended bowel which was discolored”; that the patient’s condition then “became so serious and his pulse so bad that we deemed further interference could not be attempted, and I saw that he would die on the table if I continued, so I sewed him up and removed him to his room and he expired about 15 minutes later”; that on the same day, with the permission of Prehn’s widow, a post-mortem examination was made by Dr. Piette, the pathologist and director at said hospital; and that the witness together with other physicians were present at the examination. The witness further testified as to said examination “that the,whole internal cavity was opened; that we found a severe hemorrhage in the lesser peritoneal cavity; a peculiar clot about the size of a large grape fruit was removed; ive fo%md a ruptured spleen; the spleen had a laceration of about 2% to 3 inches in length; there was a blood clot in it that showed evidence of some degeneration or death of the spleen substance; the capsule or sack of the spleen was also lacerated; there was also a scar in the spleen, which I took for granted as evidence of some prior injury; the scar was about 1% inches long and it might be months or years old; the 2% inches’ laceration of the spleen (above mentioned) was, I would say, two or three days old, due to the fact that there was a black blood clot in this lacerated area; we made no examination of the sacro-iliac region that I spoke of, because the examination as made satisfied everybody as to the cause of death, and assuming it was accidental, I called the coroner’s office; prior to that I had no idea whatsoever as to the cause of death; this man was approximately 35 or 36 years of age, was quite fleshy, and weighed perhaps 225 to 230 pounds.”

Dr. Trowbridge further testified that he not only had an opinion as to the cause of Prehn’s death but that he 1mew the cause, and that it was “hemorrhage due to a ntptured spleen.” To a hypothetical question, based upon the testimony of the witnesses McFadden and Livingston and his own observation of the patient, he expressed the opinion that “the spleen was ruptured as the result of a sudden muscular movement,” and upon being asked “whether a sudden or quick rising from this chair could have caused a rupture of the spleen,” he replied: “My opinion dates back to his fall off the ladder; I believe that his fall off the ladder caused a slight laceration in the spleen underneath the capsule, and that this further exertion on his part completed the act; by further exertion I refer to when he arose from the chair.” He further expressed the opinion that “the scar that he found on the spleen might have been caused by his falling from the scaffold.” On cross-examination the witness further testified that he did not examine the spleen after it was removed from the body, but that he was present while it was being examined; that it was abnormally large and had adhesions on it; that an internal viscus can rupture from muscular exertion; that, in answering the hypothetical question and stating that the rupture of the spleen could have been caused by the sudden rising from the chair, he “took into consideration, the other accident which occurred in June, 1930”; that said accident in June “most assuredly contributed to his condition”; that the direct cause of the lacerated spleen “was external violence of recent origin, i. e., within two or three days.” On redirect examination the witness further testified that the injury received from the accident in June ‘‘wouldn’t cause his death, but caused a diseased spleen and the additional accident caused his rupture

Plaintiff’s witness, Dr. Eugene C. Piette, who performed the post-mortem examination, testified at length as to what he then discovered. His testimony is to the same effect as that of Dr. Trowbridge, except that he “did not find any scar on the spleen capsule or within the spleen tissue.” He testified in part: ‘‘ There were some adhesions present in the abdominal cavity unquestionably of old origin. As a rule these adhesions are interpreted to be of traumatic origin. The spleen was considerably enlarged and there was a tear or rupture therein over an inch in size.” He expressed the opinion from said examination that Prehn’s death was caused by “loss of blood into the abdominal cavity caused by the rupture of the spleen.” In answer to a lengthy hypothetical question he expressed the opinion that the rupture in the spleen that he found upon such examination could have been caused by the hypothetical man being seated in a chair tilted back, and rising quickly, and bringing the chair down on its four legs. On cross-examination he testified that the accident of falling from the scaffold in June, 1930, of which he had heard, “may have left certain changes within his body.” On redirect he testified that the only body changes that he found on the post-mortem examination that might be attributable to the scaffold accident were “multiple adhesions in the peritoneal cavity.”

Except for one witness called to identify the postmortem examination record, signed by Dr. Piette and which defendant introduced in evidence, defendant’s only evidence was the testimony of Dr. Harry E. Mock, called as an expert witness. Having heard the testimony given in court by Dr. Trowbridge, and having read the transcript of the testimony given by Dr. Piette, Dr. Mock expressed the opinion, in answer to a hypothetical question, that, assuming a, healthy man with a healthy spleen, “his rising from the chair suddenly could not cause a rupture of the spleen.” He then was told to assume the fact that the same individual had fallen from a scaffold about 90 days prior to his rising from this chair, and asked if, in his opinion, “the fall from the scaffold had anything to do with the condition, in causing the death ? ’ ’ He replied “I can answer that question only in the light of previous testimony that there were changés in the spleen indicating an old condition. . . . There is not enough of the question there for me to answer yes or no. I don’t know whether a fall from the scaffold had anything to do with it without assuming certain knowledge that I have.” He also expressed the opinion that “the immediate cause of death was undoubtedly surgical shock, plus hemorrhage from a ruptured spleen,” and that the “ruptured spleen could more probably occur from such movements as moving him to the X-ray room and to the operating room and back.”

In urging a reversal of the judgment defendant’s counsel contend that Prehn’s death did not result from violent and accidental means independently of all other causes, and that the court erred in refusing defendant’s motions, made at the close of plaintiff’s evidence and at the close of all the evidence, to enter a finding and judgment for defendant. We cannot agree with the contentions. We are of the opinion that the evidence sufficiently showed that Prehn’s death did result from such violent and accidental means and independent of other causes as rendered defendant liable under the certificate or policy sued upon, and that the court’s finding and judgment are sufficiently sustained by the law. (See United States Mutual Accident Ass’n v. Barry, 131 U. S. 100, 121; Lewis v. Ocean Accident & Guarantee Corp., 224 N. Y. 18, 20, 21; Higgins v. Midland Casualty Co., 281 Ill. 431, 435, 437; Christ v. Pacific Mut. Life Ins. Co., 312 Ill. 525, 530, 531; Vollrath v. Central Life Ins. Co., 243 Ill. App. 181, 184, 187; Hibbs v. United States Fidelity & Guaranty Co., 262 Ill. App. 279, 286, 287.) In the Higgins case, supra (p. 437) our Supreme Court, quoting from another case, said: “The proper and true test, in all instances of voluntary action, is that defined in the Barry case (131 U. S. 121). If in the act which precedes the injury, though an intentional act, something unforeseen, unexpected and unusual occurs which produces the injury, it is accidentally, caused.”

The judgment of the municipal court should be and is affirmed.

Affirmed.

Keener, P. J., and Scanlan, J., concur.


text:
    P. J. Kelly, Complainant and Appellee, v. Louis L. Marks et al., Certain Defendants and Appellants.
    Gen. No. 35,992.

      Opinion filed June 28, 1932.
    Rosenberg, Corlett & Toomin, for appellants; Milton M. Hermann, of counsel.
    Lord, Lloyd & Bissell, for appellee; Cushman B. Bissbll and A. C. Wetterstorm, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

This is an appeal from an interlocutory order of the circuit court, entered by Judge Finnegan on February 5, 1932, appointing the Cook County Trust Company as receiver of certain improved premises in Chicago in a pending foreclosure proceeding.

Complainant’s original bill, verified by an authorized agent, was filed on August 3, 1931. It prayed for the foreclosure of a trust deed conveying the premises to Foreman Trust & Savings Bank, as trustee, dated May 10, 1929, executed by Louis L. Marks and Meyer S. Marks and their respective wives, and given to secure a principal note of $26,000, due on May 15, 1934, and bearing interest at six per cent per annum, payable semiannually, as evidenced by coupon notes. The bill also prayed for the appointment of a receiver pendente lite. It alleged inter alia that default had been made in the payment of interest coupon note, No. 4, for $780, due on May 15, 1931, and in the payment of general taxes for the year 1929; that defendants had permitted a mechanic’s lien claim for $154.45 to be filed against the premises; that by reason of such defaults and breaches of the terms of the trust deed, complainant, as owner of the indebtedness, on June 26, 1931, elected to declare and did declare the whole indebtedness at once due and payable; and that defendants had executed and delivered two other junior and subordinated trust deeds, conveying the' premises as security for two other principal notes, aggregating about $43,000. By the terms of the trust deed sought to be foreclosed the complainant was given the right to declare all of said indebtedness due, without notice, upon defendants’ default in the payment of any interest instalment, or upon their failure to pay taxes as the same became due, or if they permitted any mechanic’s lien to attach to the premises. Also by the terms of the trust deed defendants assigned the rents and, upon the institution of a foreclosure suit, waived all right to the possession of and income from the premises during the pendency of such suit and until the redemption period had expired, and agreed that a receiver might be appointed as of right to take possession and collect the rents.

On August 10, 1931, before answer filed and upon complainant’s motion for the appointment of a receiver pendente lite, there was a hearing before Judge Trude, resulting in the court denying the motion. The court’s order then entered is as follows:

“On motion of complainant’s solicitor, and upon argument of counsel for the appointment of a receiver upon the allegations of the bill of complaint, and the court having heard argument of counsel for defendants, and counsel for defendants having alleged that the premises herein are valued at $40,000, it is ordered, adjudged and decreed that complainant’s motion for the appointment of a receiver be denied at this time.”

On February 1, 19‘32, after notice and by leave of court, complainant filed certain amendments to his original bill. The additional allegations and the- bill as amended are sworn to by the same agent of complainant who had sworn to the original bill. Among the additional allegations are that on and prior to May 1,1931, complainant was and ever since has been, and is now, the legal holder and owner of said principal promissory note and of all the unpaid interest coupons thereon, viz., Nos. 4 to 10, inclusive; that on June 26, 1931, he recovered a judgment at law in the circuit court against Loui's L. and Meyer S. Marks and their respective wives in an action of assumpsit for $28,300.99, which included the principal and interest due on the indebtedness herein involved of $26,953.33, and $1,347.66 attorney’s fees, and that the judgment is still in full force and effect; that the premises herein involved were on October 28, 1930, sold for $492.83 for nonpayment of the general taxes for the year 1928; that the taxes assessed against the premises for the year • 1929, in the sum of $948.40, are past due and unpaid and penalties have been accruing thereon since May 1, 1931; that on January 23, 1931, the premises were sold for $112.86, for nonpayment of a special assessment; that there are several unsatisfied judgments against one or more of said defendants which are liens upon the premises; that the premises “are scant and insufficient security for the payment of said indebtedness”; that the premises “are not being repaired, but are being allowed to deteriorate rapidly and are in a bad state of repair, and that in order to preserve said security and keep the premises in good condition it is necessary that a receiver be appointed,” etc.; that “the market value of the premises is less than the amount due and owing to complainant”; that their fair, market value “is less than $20,000”; and that at a foreclosure sale they “cannot be sold for more than $20,000.” On the same day (February 1, 1932) complainant, after notice, made a second motion for the appointment of a receiver, basing the motion on the bill as amended, and the motion at defendants ’ request was continued to February 5, 1932.

In the meantime the defendants (the four Markses), on February 4, 1932, filed their joint and several answer to complainant’s bill as amended. It was not sworn to, an answer under oath having been waived in said bill. In the answer defendants neither admitted nor denied the allegations of the bill as amended, but demanded strict proof of the same. And they alleged in substance (as to said interest coupon note for $780, which became due on May 15, 1931) that at said time the premises were being managed by an agent of defendants; that “through an error” defendants were not informed of the accrual of said note; that no demand for the payment of the same was made upon them; that complainant, without having made any demand, elected to declare the entire indebtedness due and payable, and caused the judgment against them to be entered by confession in said law court as mentioned in said bill; that defendants were not aware of the accrual of the coupon note or of the entry of said judgment by confession until they were informed of the institution of garnishment proceedings in the suit at law; that immediately upon being so informed, “they tendered to complainant the interest then due, together with complainant’s costs and charges expended, together with a substantial sum in payment of part of the principal secured by said trust deed, but the complainant refused and still does refuse to accept said offer and tender”; that complainant’s acts in accelerating the obligation, notwithstanding said offer and tender of defendants, were “inequitable and unconscionable”; that the premises herein involved were purchased by defendants for $65,000, and “are worth even under present depressed conditions in excess of $40,000”; and that the same are improved with a business property located at the southwest corner of Eoosevelt Eoad and Paulina street, Chicago, and consist of seven stores and a loft, “with a monthly rental of approximately $350.”

The hearing on complainant’s second motion for the appointment of a receiver was had on February 5, 19'32, at which time complainant introduced certain oral and documentary evidence. It does not appear that defendants made any attempt by testimony or affidavits to dispute the allegations of complainant’s sworn bill as amended or to sustain any of the allegations of their unsworn answer. They, however, made an offer, hereinafter mentioned, relative to the filing of a bond in lieu of the appointment of a receiver. At the conclusion of the hearing the court entered the order now in question, appointing the Cook County Trust Company as receiver, with usual and customary powers. In the first paragraph of the order it is stated:

“It appearing to the court, upon reading the verified amended' bill of complaint herein, that a default was made in the payment of the indebtedness secured by the trust deed sought to be foreclosed by the amended bill of complaint and of the covenants of such trust deed, and that, by reason of such default which still continues, complainant has heretofore filed his amended bill of complaint in this court for the purpose of foreclosing said trust deed securing said indebtedness, and that said premises are scant, meager and insufficient security for said indebtedness dne to complainant, and are worth less than the amount due to complainant, and will not sell in the proceeding for enough to pay the indebtedness due to complainant under the terms of said trust deed, and that said premises were sold for the non-payment of 1928 taxes assessed against them, and were also sold in January, 1931, for the non-payment of a special assessment against such premises, and that the 1929 taxes assessed against the premises are more than seven months past due and unpaid, it is, therefore, Ordered, Adjudged and Decreed,” etc.

The certificate of evidence of the proceedings on said hearing was signed by the judge and filed on February 19,1932. It appears therefrom that complainant’s witness, one Litman, testified in substance that he was engaged in the real estate business and for 10 years had been buying and selling properties in the immediate vicinity of the premises; that he was familiar with the present values of properties in that vicinity and with the premises in question and their value; that the gross monthly rentals received from the premises was now about $185; and that the value of the premises at the present time, in his opinion, is “not in excess of $25,000.” It does not appear that any testimony to the contrary was introduced by defendants,- — their solicitor stating that he “had no witnesses.” Thereupon said solicitor objected to the appointment of any receiver, and, upon the court indicating that he would appoint a receiver, said solicitor made statements in part as follows:

“Before a receiver is appointed, I would like to tender a bond of these defendants, with surety to be approved by the court, to cover the rents which otherwise would be collected by the receiver after the deduction of all necessary expenses in the event there is a deficiency in this case. I think we ought to be given an opportunity to'do that under the statute. . . . The complainant here has had testimony to the effect that the monthly income is approximately $185. On that valuation, I take it that the yearly income would not exceed $1,700. We are willing to offer a bond in the sum of $2,500 to cover the net rents in the event there is a deficiency, which we think will not be the case. As has been stated, we paid $65,000 for this property, and we represented to Judge Trude, and I think we can sustain it, that this property is now worth $45,000, and on this representation the motion for the appointment of a receiver was denied last August.”

And thereupon defendants’ solicitor offered in evidence a draft of a bond, dated February 5, 1932, not signed by anyone, and not fixing any penalty or naming any surety. The court examined it and admitted it in evidence. The condition of the bond as drafted was in substance that defendants pay to complainant the revenues arising from the premises during defendants’ possession thereof in so far as the same should be necessary to pay any deficiency decree less such amounts as defendants might pay for maintenance, repairs, prior liens and fixed charges. Thereupon the court stated that he would appoint the Cook County Trust Co. as receiver with bond of $1,500, and that complainant’s bond be fixed at $500, and that he would allow defendants 30 days within which to file a certificate of evidence. And thereupon the order appealed from was entered. Neither in this order nor in any other order in the clerk’s transcript does it appear that the court allowed defendants 30 days or any stated time within which to file a certificate of evidence. Defendants presented such certificate to the judge on February 17, 1932, which day while only 12 days after the entry of the order in question (February 5) was not within the term of court at which said order was entered, and on February 19 such certificate was signed by the judge and filed. Defendants, perfected their appeal in apt time in the circuit court by presenting their appeal bond on March 2, 1932, which on that day was approved by the clerk of the court and filed. And on April 5, 1932, and within apt time, defendants filed in this court a transcript of the record, containing such certificate of evidence.

On May 7, 1932, complainant appeared in this court and moved that the certificate of evidence be stricken from the transcript. The motion was accompanied by written suggestions. Subsequently defendants filed counter suggestions and the motion was reserved to the hearing. While some of the questions raised by the motion are not wholly free from doubt we think the motion should be denied and such will be the order. On May 23, 1932, defendants filed a motion, supported by written suggestions, that they be allowed to here file an additional transcript of certain proceedings had in the cause in the circuit court, including an order of that court entered May 20, 1932. Counter suggestions were' filed by complainant and the motion was reserved to the hearing. It will now be denied.

It is to be noticed that counsel for defendants do not contend that the facts as alleged in complainant’s sworn bill as amended, supplemented by complainant’s evidence introduced at the hearing of February 5,1932, were not sufficient to warrant the appointment of a receiver, but their contentions, here urged as grounds for a reversal of the order in question, are in substance (1) that the entry of the order of August 10, 1931, denying the motion for the receiver based on the original bill, is such an adjudication as bars the granting of the new motion for a receiver, though based upon the allegations of the bill as amended and supplemented by said evidence, and (2) that the court erred in not allowing defendants to give complainant the bond as tendered in lieu of appointing a receiver, as provided by statute. As to counsels’ first contention, we think it wholly lacking in merit. It clearly appears that on the first application the court, in refusing to appoint a receiver, was impressed by the allegation of defendants’ counsel that the premises had a value of $40,000. On the second application, based upon the bill as amended and complainant’s evidence, new facts were presented to the court and it appeared without contradiction that the value of the premises was “not in excess of $25,000,” or less than complainant’s indebtedness secured by said first mortgage. Furthermore, the order of August 10, 1931, was an interlocutory one (3 Corpus Juris, sec. 412, p. 575) and one that could before final decree be modified or changed as new facts warranted. In Riggs v. Pursell, 74 N. Y. 370, 378, 379, it is said: “We do not understand the rules applicable to judgments as estoppels to be applicable to their full extent to orders made on motions. . . . Where additional facts are presented or defects in proof supplied, it is quite usual to grant leave to renew a motion which has been denied or to rehear one which has been granted.” In Sill v. Kentucky Coal & Timber Development Co., 11 Del. Ch. 93, 97 Atl. 617, 619, it is said: “The suit is for a receiver based on insolvency, by appealing to a discretionary power given to the court, and it does not necessarily follow that the prior refusal of another court to appoint the receiver, based on certain allegations . and a certain state of facts, would preclude this court under other facts from granting the relief.”

Counsels’ second contention is based upon the first clause of section 2 of an act of our legislature, passed in 1903, and entitled “An act concerning the appointment and discharge of receivers” (Cahill’s St. 1931, ch. 22, ¶ 56), which reads as follows (italics ours):

“On an application for the appointment of a receiver, the court or judge may, in lieu of appointing a receiver, permit the party in possession to retain such possession upon giving bond with such penalty and with such security and upon such condition as the court or judge may order and approve; . . . ”

We think that it clearly appears from the language of this statute that the court is not required to accept such bond as may be tendered by a defendant in lieu of appointing a receiver over his property. The court has a discretion in the matter and his decision should not be disturbed except in cases showing a clear abuse of that discretion. And in the present case we fail to see any abuse of the court’s discretion. Neither the amount nor the condition of the bond as tendered would afford, in lieu of a receiver, any proper or adequate protection to complainant. And under the allegations of the bill as amended, which were not disputed, complainant was entitled to a receiver not only for the collection of the rentals but for the preservation of the property pendente lite.

Our conclusion is that the order appealed from, appointing the Cook County Trust Co. receiver of the premises, should be affirmed and it is so ordered.

Affirmed.

Kerner, P. J., and Scaulah, J., concur.


author: Mr. Justice Scanlan

text:
    Edgar M. Snow and Andrew A. Brock, Trading as Edgar M. Snow & Company, Appellees, v. Alexander S. Schulman, Appellant.
    Gen. No. 35,483.

      Opinion filed June 28, 1932.
    Rehearing denied July 11, 1932.
    Miller, Gorham & Wales, for appellant.

      Tenney, Harding, Sherman & Rogers, for appellees; Roger Sherman and Henry F. Tenney, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

This is an appeal from a judgment rendered upon an arbitrator’s award finding that Edgar M. Snow & Company, appellee, was entitled to receive $28,000, with interest at five per cent per annum from April 2, 1925, from Alexander S. Schulman, appellant, as a commission for procuring the acceptance of a loan of $800,000, from the New England Mutual Life Insurance Company to the appellant.

After the appellees had sued the appellant for commissions alleged to be due them the parties entered into an arbitration agreement, by the terms of which “1. All questions of law or fact at issue between the parties, as fixed in the pleadings filed in said suit, shall be, and they are hereby, irrevocably submitted to Charles M. Thomson as arbitrator, and the pleadings in such suit and depositions shall be introduced in evidence before the arbitrator. 2. The arbitrator shall hear such evidence and arguments as he may deem necessary to determine the issues raised, he being the sole judge of the admissibility, competency, relevancy, materiality and weight of the evidence, and shall decide such issues and fix the amount, if any, due the plaintiffs in said case. ... 4. The arbitrator may, on his own motion, and shall, at the request of either party, at any stage of' the ’ proceedings, submit any question of law arising in the course of the reference to the opinion of the court, stating the facts upon which the question arises, and such opinion, when given, shall bind the arbitrator in making his award. ’ ’

The arbitrator selected is a former justice of this court. His able and exhaustive report takes up 41 pages of the abstract of record. To quote from it:

“The plaintiffs, Edgar M. Snow and Andrew A. Brock, are partners engaged in the real estate business under the name and style of Edgar M. Snow & Co. The defendant, Alexander S. Schulman, had undertaken to close his purchase of two contiguous pieces of property on May 15, 1925. These pieces of property are referred to in the testimony as the Bass property located at the northeast corner of Dearborn and Harrison Streets, Chicago, and the Ellsworth property, adjoining the Bass property on the north. In connection with his purchase of those properties the defendant on April 1, 1925 made application in writing to the plaintiffs for a loan of $1,000,000, agreeing therein to pay the plaintiffs a commission of 3% per cent on the amount of said loan, provided they procured the acceptance of that application. It is the claim of the plaintiffs that they did procure such acceptance by a lender ready, willing and able to make the loan on the terms set out in the application and that therefore they are entitled to the commission stipulated by the terms of the application. Claiming the contrary the defendant resisted payment of the commission which resulted in this suit brought by the plaintiffs against the defendant for its recovery.”

It is conceded that the original application was amended by the appellant so that it specified that the amount of the loan was to be $800,000 instead of $1,000,000.

The report of the arbitrator included the following findings:

“On the facts shown by the evidence as set out in the statement heretofore appearing herein and for the reasons given in the foregoing opinion I find:

“1. That the defendant, Alexander S. Schulman, by his application for a loan executed on April 1, 1925, as modified on April 17, 1925, agreed to pay the plaintiffs, Edgar M. Snow and Andrew A. Brock, doing business as Edgar M. Snow & Company, a commission of 31/2 per cent of the amount of the loan, for procuring the acceptance of that application, as so modified, on or before April 28, 1925.

“2. That the undertaking of the plaintiffs was to procure a valid and binding acceptance of such application, within the time stipulated.

“3. That the plaintiffs did procure a valid and binding acceptance of that application by the New England Mutual Life Insurance Company on April 22, 1925, and that such company was at all times ready, willing and able to make said loan.

“4. That such an acceptance by the Insurance Company required the approval of the loan by its Finance Committee.

“5. That the Finance Committee did properly approve the loan applied for by the defendant on April 22, 1925.

“6. That the wording of the motion voted by the Finance Committee did not purport to cover the details or terms of the application and that it was not necessary that it should.

“7. That the record of the vote taken by the Finance Committee in approval of the defendant’s application was not inconsistent with or contrary to any of the terms of the defendant’s application.

“8. That by the terms of the defendant’s application the lender was to be allowed a reasonable time for examination of the abstracts of title to the property being offered as security for the loan.

“9. That the abstracts of title in question were delivered to the plaintiffs and by them to counsel for the lender on or about April 23, 1925.

“10. That memoranda setting* out divers and sundry matters subject to which the titles were found to be in certain designated parties were submitted by counsel for the lender to counsel for the defendant on April 29, 1925.

“11. That the only serious or material objection to the titles as found by counsel for the lender was the one involving the old lease on the Bass property.

“12. That this item was waived by the general counsel representing the lender on May 8, 1925, and the defendant was advised to that effect on that date.

“13. That on the same day counsel for the lender advised counsel for the defendant that.he was satisfied there was nothing in the remaining items which could not be taken care of and that he would be glad to take up on that day the points necessary for clearing up the remaining items and closing.

“14. That the time taken for examination of the titles and the consideration of the items referred to, subject to which the titles were found to be in certain designated parties, being from April 22 to May 8,1925, was not an unreasonable time for such examination and consideration.

“15. That the plaintiffs are entitled to be paid the commission stipulated in the application for the loan as executed by the defendant amounting to 3% per cent on the amount of the loan which was $800,000.”

After the arbitrator had made his report the publication of the award was postponed to enable the parties to submit to the court “any question or questions of law involved herein, should they choose so to do.” Thereafter four questions of law were submitted to the court by the appellant. The questions and the court’s answers to the same are as follows:

“1. Was the plaintiff required, in order to earn said commission, to procure within the time limited a legally valid acceptance of defendant’s application, for breach of which by the acceptor of the application an action by defendant would lie ?

“Tes, the arbitrator has specifically ruled to such effect in his opinion at pages 24-25.

“2. Did the action of the Finance Committee constitute an acceptance of defendant’s application?

“No. But in the opinion of the court, it was not necessary to a binding acceptance by the Insurance Company, of the defendant’s application, that the action of the Finance Committee constitute such an acceptance. In the opinion of the court the action of the Finance Committee constituted an approval of the proposed loan to the defendant, which was all that was necessary so far as the Finance Committee was concerned, and, following that, in the opinion of the court there was a valid and binding acceptance by the Insurance Company of the defendant’s application for the loan, as found by the arbitrator in his opinion, at page 27.

“3. Since the lender — the acceptor of the application — was by the terms of the application to loan a part of the amount applied for more than one year after the time limited for securing the acceptance, was the acceptance required to be in writing signed by the acceptor of the application or by some person thereunto by the acceptor lawfully authorized?

“No. But in the opinion of the court this question is entirely immaterial in view of the fact that the arbitrator has found, at page 27 of his opinion, that a valid and binding acceptance of the application for the loan was made in writing, which finding the court approves.

“4.- Defendant having no information either at the time he was notified by plaintiff that his application had been accepted by said Insurance Company, or at the time said loan fell through, or until the taking of the depositions after suit begun on the above claim, of the above facts as to the action of the Finance Committee of the Insurance Company and the extent of its authority in the making of loans and the acceptance of applications therefor, is defendant now barred from claiming that the New England Mutual Life Insurance Company never accepted all the material terms of his application; or that its acceptance was not a legally valid one; or that such acceptance not being by a writing signed by the insurance company or by its duly authorized agent was not valid?

“No. The defendant is not barred from making the claims referred to, but the arbitrator has made findings that none of the claims are tenable, and the court approves those findings.

“And the court having stated its opinion with respect to the said propositions of law so submitted to the court by counsel for the defendant,

“It Is Ordered, that the opinion of this court as so stated shall bind the arbitrator in making his award herein as provided in the agreement of the parties hereinabove referred to.”

After the court had considered the above questions and “had passed upon them, but had not entered the order,” the arbitrator, at the request of appellant, submitted to the court a fifth question, as follows:

“5. Did the letter of Wallace D. Dexter, Jr., to John Jeffries and Sons, dated April 22, 1925, constitute an acceptance of defendant’s application?”

The court refused to pass upon this question. The arbitrator then made his award, in which he stated “that the facts established by the evidence” are ‘[as specifically set out in the findings.”

The appellant contends: (a) “A written acceptance of the contract was necessary because it could not be completely performed within one year”; (b)- “Dexter’s letter of April 22, 1925, was not a valid and binding acceptance of Schulman’s application by an authorized agent”; and (c) “The memorandum of the action of the finance committee of April 22, 1925, was not in itself a sufficient writing to satisfy the Statute of Frauds.” The appellant thus states his position: “That a valid and authorized written acceptance by the Insurance Company was necessary and that the Finance Committee alone was authorized to make it; that neither Dexter’s letter nor the minutes of the Committee’s action, separately or combined, could or did constitute such an acceptance; and that, these matters being covered by our propositions of law, the erroneous answers of the court constituted material error and the judgment should be reversed.” (Italics ours.) In his reply brief the appellant states his position as follows: "These positions were incorporated in the propositions of law submitted to the court in accordance with the express right reserved in the arbitration agreement, and also given by the statute, and the decisions of the court adverse to Sehulman on these questions, and decisive of the case, are the errors now complained of.” (Italics ours.)

“Inasmuch as the arbitration of controversies avoids the formalities, delay and expense of litigation in court, the courts, speaking from an economic standpoint, have approved and recommended that method of settlement. (Gerrish v. Ayers, 3 Scam. 245; Merritt v. Merritt, 11 Ill. 565; Haywood v. Harmon, 17 id. 477; Podolsky v. Raskin, 294 id. 443; Ballance v. Underhill, supra.)” (Cocalis v. Nazlides, 308 Ill. 152, 156.) “The object of arbitration is to avoid the formalities, delay and expense of litigation in court, and the decision of the arbitrators, acting within the scope of their authority under the submission agreement, is conclusive on the parties upon matters of law and fact. (Boston Water Power Co. v. Gray, 6 Metc. 131; Hewitt v. Craig, 86 Ky. 23; Thornton v. McCormick, 75 Iowa 285.) . . . The rule is that if an award is in conformity with the general submission and no fraud or mistake appears on its face it will not be interfered with or set aside by a court for errors either of law or fact. (White Star Mining Co. v. Hultberg, supra.)” (Podol sky v. Raskin, 294 Ill. 443. See also White Star Mining Co. v. Hultberg, 220 Ill. 578, 601.) The appellant contends that in Podolsky v. Raskin, and other cases akin to it, no submission of questions of law, as provided in the statute, was made to the court, and therefore the decisions of the arbitrators in those cases, on both questions of law and fact, were conclusive, but that in the instant case the right to have the trial court pass upon questions of law was reserved by the appellant and the cases cited have no bearing upon the instant one. Even if this contention were a meritorious one, nevertheless, the appellant does not cite a single case that supports his argument that if the trial court erred in his answers to several of the questions submitted by the appellant that fact alone would require a reversal of the judgment of the circuit court and a setting aside of the award because the answers were adverse to the appellant. Appellant cites such cases as Russo v. Ginocchio, 288 Ill. 470, wherein the court held that where there was no dispute concerning the essential facts involved in the making of an alleged contract, the question as to whether or not the facts show the existence of a contract between the parties is a question of law. That case, as well as several others cited, was an ordinary suit at law and has no bearing upon the instant contention.

Sec. 1, par. 1, ch. 10, Cahill’s Ill. Rev.'St. provides: “. . . and may, in such submission, agree that any court of competent jurisdiction, or any court therein named (provided it is of competent jurisdiction) may pass upon any questions of law arising in such arbitration proceedings. . . .” Sec. 6, par. 6, provides: ‘ ‘. > . The arbitrators may, of their own motion and shall by request of a party (a) at any stage of the proceedings, submit any question of law arising in the course of the reference for the opinion of the court, stating the facts upon which the question arises, and such opinion when given shall bind the arbitrators in the making of their award; . . .” Sec. 11, par. 11, provides: “Award, when set aside.] §11. If any legal defects shall appear in the award or other proceedings, or if it shall appear that the award is not sustainable under the opinions of the court upon questions of law under section 6 of this Act, the court may set aside such award, or remit the matters contained in the said award to the reconsideration of the said arbitrators; or, if it shall appear, on oath or affirmation that said award was obtained by fraud, corruption or other undue means, or that such arbitrators misbehaved, said court may set aside such award.” In Chandler v. Gay, Beecher’s Breese 88, it was held that the circuit court could only set aside an award on grounds expressly stated in the statute and that the same rule governed the Supreme Court in passing upon a judgment entered upon an award. “The opinion of the arbitrators which binds the parties is that which. they have expressed by their award. Judgments of courts do not depend upon the opinions rendered in the courts, neither can the validity of awards be made to depend upon the soundness of the opinions of the arbitrators not shown by the awards.” (White Star Mining Co. v. Hultberg, supra, p. 612.) In the instant case, as no legal defects appear in the award or other proceedings, and as there was no claim of fraud, etc., it was the plain duty of the trial court to enter judgment upon the award unless it appeared to the court that the award was not sustainable under the opinion of the court on the questions of law submitted to him. The trial court, by entering judgment, held, in effect, that the award was sustainable “under the opinions of the court upon questions of law under section 6.” We approve of his action in that regard. The appellant does not claim that mistakes or errors are apparent on the face of the award and he asks us to reverse the instant judgment upon the sole ground that the trial court erred in his answers to several of the questions of law submitted to him by the appellant. The arbitrator states in the award that he makes the award upon the facts “specifically set out in the findings,” and it is clear that no mistakes of fact or law, that would warrant the setting aside of the award under section 11, are apparent upon the face of the award or the findings, but the appellant insists that an examination of the evidence will disclose that certain findings of fact were not justified under the undisputed proof. It is a sufficient answer to this contention to say that we have no right to look into the evidence for the purpose of correcting alleged errors of judgment of the arbitrator. (See White Star Mining Co. v. Hultberg, supra, p. 608.) Unless there be something on the face of an award to show that the arbitrator has proceeded on grounds which are not sustainable in point of law, an objection to it will not be entertained. (Ib. p. 610.) We may state, however, that we are satisfied, after a careful study of the record, that the findings of fact of the arbitrator are fully sustained by the proof. We may add that even if it could be assumed that the trial court erred in his answers to any of the questions, it would avail the appellant nothing, for the reason that the award of the arbitrator, which states “that the facts established by the evidence”-are “as specifically set out in the findings,” upon its face, is unassailable, and therefore the trial court had no right to set it aside, nor have we.

The arbitrator in the instant case is learned in the law, and, unlike most arbitrators, required no assistance on questions of law from the trial court, and it may be presumed that the parties selected him because of his outstanding qualifications. After evidence on both sides had been closed, and the arbitrator was about to take the matter under advisement, the appellant submitted to the arbitrator for his determination four written propositions of law, anfi both parties sqbmitted written briefs to him. In the opinion filed by the arbitrator he not only passed upon questions of fact but upon the propositions of law submitted to him. After the arbitrator made his report and his findings, the appellant then went before the trial court to submit the questions of law, heretofore quoted, and his sole contention here is that the trial court erred in his answers to the questions. Until the arbitrator made his report and findings the appellant did not ask that any questions of law be submitted to the trial court. Under the procedure followed, the appellant, in a formal manner, submitted to the arbitrator for his determination the same propositions of law he after-wards submitted to the trial court, and we question if the appellant would have had just cause for complaint had the arbitrator refused to submit to the trial court the questions of law. Under the arbitration agreement the parties were hot compelled to submit questions of law to the trial court, and they had the right to allow the arbitrator to determine questions of law. Query: Had the appellant the right to treat the arbitrator as a trier of questions of law, until the latter had rendered his decision, and then, because the decision was against him, submit to the trial court the same questions- of law that he had formally asked the arbitrator to determine ? When the appellant submitted the questions to the trial court the decision of the arbitrator had been made, although the formal entry of the award had been postponed. If the appellant was of the opinion that the arbitrator required the assistance of the trial court on questions of law, it seéms to us that the intent and spirit of the Arbitration Act required that he should have presented to the trial court the questions of law and obtained the opinion of the court in reference to the same before the cause was submitted to the arbitrator upon questions of fact and law for his decision. If the position of the appellant is justified under the act, then an arbitration proceeding, instead of being an aid to disputants, would be merely the entrance to a law suit.

After the trial court had answered the four questions submitted to him, the appellant then submitted another question to the court, and now complains that the court erred in refusing to pass upon the same and that the judgment of the court should be reversed for that reason. The action of the trial court was fully justified. The argument of the appellant amounts to this, that he had the right to formally submit questions of law to the arbitrator, and if the questions were decided by the latter adversely to him and the cause decided against him, he then had the right to submit questions of law to the court, and if the court answered them adversely to him, to submit others, and if in answering any of the questions the court erred, the judgment must be reversed and the award set aside.

We are satisfied that the award is a just one and should be sustained. The contention of the appellant that there was not a valid and binding acceptance of the loan made by the Insurance Company, is clearly an afterthought, and without merit. The appellant was represented, during the negotiations, by an able and experienced attorney, and at the time that the appellant, to use the language of his attorney, “abandoned his Insurance Company loan and sought it elsewhere” no such point had been made or suggested by the appellant or his attorney. Both were satisfied that the Insurance Company had accepted the loan and they submitted to the attorney for that company for examination the abstract of title, and all objections to the title had been practically waived at the time that the appellant “abandoned the Insurance Company loan.” It is very significant that the appellant tried hard to secure a larger loan from the Insurance Company than it was willing to make. During the negotiations over the objections raised to the title the attorney for the appellant, without the knowledge of the appellees or the attorney for the Insurance Company, went to the Central Trust Company and made an application for a loan. That company was willing to loan the appellant $900,000, whereas the Insurance Company would not loan more than $800,000, and while the attorney for the Insurance Company was preparing to close the matter with the appellant the latter secured a loan from the Trust Company for $900,000 and thereafter refused to carry through the loan with the Insurance Company. In appellant’s brief appears the following: “The abstracts of title were submitted on April 23, 1925, to Mr. Trumbull of that firm (Messrs. Judah, Willard, Wolf & Reichmann, attorneys for the Insurance Company), who prepared a lengthy list of objections to the titles to both properties, on several of which he stood, refusing all appellant’s efforts to cure the alleged defects. He proved so arbitrary and difficult to deal with that on May 7, 1925, Mr. Schulman abandoned his Insurance Company loan and sought it elsewhere. The question of whether or not he was within his legal rights in so doing was argued before the Arbitrator and decided by him adversely to Mr. Schulman, and not being covered by any proposition of law, need not concern us further.” The arbitrator found that the time taken in the examination of the abstracts was not unreasonable. It is not contended that the appellant or his attorney ever claimed or considered, during the negotiations, that the Insurance Company had not made a binding acceptance of the application of appellant. In fact, the appellant, in proposition of law number four, submitted to the arbitrator, and in question of law number four, submitted to the trial court, admits, in effect, that he made no such claim, and seeks to excuse his failure in that regard by pleading ignorance of the actual situation. The arbitrator found that the appellees procured a valid and binding acceptance by the Insurance Company of the appellant’s application within the time stipulated. The attorney for the appellant was negotiating with the Trust Company for a loan of $900,000 while still dealing with the Insurance Company, and it is evident that as soon as he was certain that the Trust Company would loan the appellant $900,000 the latter determined to “abandon the Insurance Company loan.” The major contention of the appellant is a mere pretext, without merit, and advanced to avoid a just obligation.

The judgment of the circuit court of Cook county should be and it is affirmed.

Affirmed.

Kerner, P. J., and Grtdley, J., concur'.