text:
    The People of the State of Illinois ex rel. Joseph Thoney, Defendant in Error, v. Edward Sylvester et al., Plaintiffs in Error.
    Gen. No. 30,830.
    1. Elections — findings in contempt proceeding against election officers as basis for conviction when inapplicable to all respondents alike. Under Cahill’s St. ch. 46, fi 267, allowing summary trial of election officials for contempt, conviction of one election judge should stand though only part of the findings applied to him.
    2. Elections — discharge of one respondent in contempt proceedings against election officers as affecting rights of others. Under Cahill’s St. ch. 46, If 267, allowing summary trial of election officials, discharge of one election judge respondent will not affect rights of the other respondents.
    3. Elections — poll books, etc., as evidence in summary proceedings against election judge. Under Cahill’s St. ch. 46, fl 267, poll books and registers are competent against an election judge respondent although some of the entries were made when he was not present.
    4. Harmless and prejudicial error — permitting witness to testify as to facts shown by books in evidence. Where election poll books showing illegal duplications were in evidence permitting a witness to state what he found therein by way of duplication, if error, was harmless.
    5. Elections — sworn answer of accused officials as basis for discharge in contempt proceedings. Under Cahill’s St. ch. 46, 1f 267, for summary trial of election officials, respondents merely by a sworn answer cannot be purged of contempt and discharged, as at common law.
    6. Elections — legislature’s power to enact provision for summary trial of election officers. The legislature had constitutional power to pass the City Election Law, Cahill’s St. ch. 46, If 267, giv- • ing right for summary trial of election officials.
    7. Elections — denial of jury trial as affecting validity of provision for summary proceedings against election officials. Under Ca-hill's St. ch. 46, If 267, providing a summary contempt proceeding for election frauds, due to distinction between contempt and criminal proceedings, denial of jury trial therein is constitutional.
    8. Elections — necessity for conduct of summary proceedings against election officials by State’s attorney. Under Cahill’s St. ch. 46, If 267, providing summary contempt proceedings for election frauds, the action is not for crime so the State’s attorney is not required to commence the action.
    9. Elections — imprisonment as penalty on conviction of election fraud under statute authorising summary proceedings. Under Ca-hill’s St. ch. 46, % 267, providing summary contempt proceedings for election fraud, the court may punish such contempt by imprisonment.
    Error by defendants to the County Court of Cook county; the Hon. Edmund K. Jabecki, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1926.
    Affirmed as to two and reversed as to one of plaintiffs in error.
    Opinion filed December 21, 1926.
    Rehearing denied January 4, 1927.
    Henry A. Berger and John F. Higgins, for plaintiffs in error.
    Robert E. Crowe, State’s Attorney, for defendant in error; Joseph B. Fleming, Special Assistant State’s Attorney, and Henry T. Chace, Jr., Assistant State’s Attorney, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court. .

Plaintiffs in error, Sylvester and Menet, were judges, and Carpino, a clerk of election, and acted as such at a general aldermanic election held in the city of Chicago, February 24, 1925.

Upon a proceeding based on section 13 of Article II of the City Election Act (Cahill’s St. ch. 46, 267) said plaintiffs in error were adjudged guilty of contempt of the county court and ordered committed to the county jail for six months each. This writ seeks a review and reversal of that order.

On a petition by relator setting forth substantially that while acting as such officers, respectively, plaintiffs in error and Martha Soreng, a third judge, and Esther Datillo, the other clerk, were guilty of certain specific acts of misconduct and misbehavior, a rule to show cause was entered, and respondents filed a joint and several sworn answer specifically denying commission of the acts charged on which they moved for their discharge. The motion was overruled, and over their objections the court proceeded to a hearing and refused a trial by jury. After a hearing had on oral and documentary evidence, including testimony of respondents in their own behalf, the court entered the order aforesaid, finding that respondents, Mrs. Soreng and Esther Datillo, had purged themselves of contempt, but that plaintiffs in error, Sylvester, Menet and Carpino, wilfully neglected their duty, kept a false poll list, unlawfully inserted and permitted to be inserted false statements and names of persons who did not appear at the polling place to vote, knowingly and wilfully permitted to be deposited during the election 10 packages of ballots containing 10 ballots each in the ballot box not offered by registered voters, permitted the insertion in the poll list of the -names of 100 or more persons who did not appear at said polling place, and wrongfully received votes twice in the name of the same registered voter and recorded them as voting twice in 15 different instances.

It is urged that the evidence does not show guilt beyond a reasonable doubt, the charge being criminal in its nature.

That all these things took place is established by incontrovertible proof, and that there was a conspiracy to place a hundred or more unvoted and illegal ballots in the box is inferable and palpable from the very circumstances proven.

Bearing on such conspiracy are the following significant facts: Czarnecki, one of the election commissioners, visited the polling place about 10:30 o’clock in the forenoon. At that time the clerk, Datillo, and Mrs. Soreng, the third judge, were absent and there had been recorded as voting 125 persons whose names appeared on the first 125 numbered lines of the poll books (except that three of the names had not been entered in one of them), both being kept at that time by Carpino in the absence of Datillo, who entered the names up to line 103 before she left for luncheon. On inspection of Carpino’s poll book Czarnecki found names written in from line 199 to 301, inclusive, evidently copied directly from the poll list, for they were inserted in the poll book in the exact order of the numbers of the street residences of such persons as they appear on the register or poll list. The lines of the poll books between line 125 and line 199 were blank. The commissioner forbade further use of that book and asked plaintiffs in error for an explanation of these insertions but received none. At that time complaints of “stuffing the ballot box” were openly made to Czarnecki in the presence of those officials.

At the hearing all of respondents disclaimed knowledge of the insertion of the 103 names in Carpino’s poll book before the fact was called to their attention by Czarnecki. The entries were not in the handwriting of either of the clerks. It is apparent, however, that whoever inserted these names did so to account for fraudulent unvoted ballots found in the box in excess of the actual number of votes that were placed therein, 100 of which were in 10 packages, each containing 10 ballots folded together, and that whoever placed them in the box was cognizant of the fraudulent entries in the poll book. If these packages were in the ballot box on the opening of the polls and permitted to remain there, or the officials neglected their statutory duty under section 51 of the Election Act [Cahill’s St. ch. 46, ft 431] of seeing that no ballot was then in the box, the officials present would be chargeable with official misconduct or neglect of duty. Carpino only appears to have been present at that time. But there is sufficient circumstantial evidence that these ballots were placed in the box during voting hours with unquestionable connivance of two of the judges in charge of the box. Direct proof in such a case, except by confession of one of the guilty parties, is rarely obtainable. But the circumstantial evidence is strong and convincing.

It is undisputed that Menet opened the ballot box during the absence of the two women officials and before the arrival of Czarnecki. When he did so Sylvester was standing by the box and the ballots fell out on the floor and were picked up by Menet and put back in the ballot box. The dropping of the ballots was evidently a ruse to conceal from others their placing with" them in the box these bundles of fraudulent ballots, for this was the only time the ballot box was opened before 4 p. m., and Mrs. Soreng testified that she saw no occasion any time during the day to open the ballot box to push back the ballots, the only explanation offered for opening it. It is significant that Menet and Sylvester had no reasonable explanation- to offer for these fraudulent ballots, and when the latter was asked for an explanation at the trial his answers were very evasive. These 100 ballots and the 103 fraudulent entries are so inextricably connectéd as to point conclusively to a conspiracy and fraudulent- scheme "to stuff the ballot box with unvoted ballots which could not have been placed in the box in such bundles without the connivance of some of the judges, and the circumstances point beyond reasonable doubt to the guilt of Menet and Sylvester.

But the proof as to the clerk Carpino is less* certain. He denied knowledge of the insertion of the 103 names in his poll book, and the names were not in his handwriting. There is no direct proof of the handwriting or when they were written in. They may have been written in before he received the book or when he stepped out into a kitchen back of the polling place for about 20 minutes. He was inexperienced, poorly educated, and probably careless, and while his participation in the conspiracy may be suspected it is not sufficiently proven.

There were 15 different instances of persons recorded as having voted twice. But it is urged that Menet could not have known of them because the duplications occurred after his discharge. But granting this, the order of conviction against him- would stand on the other findings. It is not necessary to the sustaining of the order that he be guilty of all the court’s findings. Sylvester, however, was there all of the time. It was his duty to check the names of the voters from the register as they voted, and as said in Sherman v. People, 210 Ill. 552, where there were eleven similar instances, “it certainly could not be said that it was done so many times through mere mistake or inadvertence.”

It is argued that Mrs. Soreng’s discharge is inconsistent with the guilt of the other judges. Whether so or not we are not called on to reconcile the court’s findings as to her. But under the proven circumstances the conspiracy could hardly have been accomplished without the connivance of the other two judges.

Because Menet was not present when some or all of the duplications aforesaid took place, error is charged in admitting the poll books and. the registers as to him. What they showed as occurring prior to the time he was discharged is not questioned. They were relevant for that purpose, and his conviction stands on what occurred before his discharge.

The point that one of the witnesses was improperly permitted to state what he found by way of duplication of names in the poll books is purely technical as the books themselves were in evidence and showed the duplications.

It is urged that respondents were purged of contempt on their sworn answer, and should have been discharged, and. counsel cite in that connection People v. Seymour, 272 Ill. 295; People v. Severinghaus, 313 Ill. 468; Sherman v. People, 210 Ill. 552, and other cases. But what was said on that subject in these cases related to constructive criminal contempts and the rule of procedure at common law whereby in such cases' onq may be purged of contempt by his sworn answer denying the charges. This case, however, does not involve a contempt existing at common law but one created by statute. Said rule is not questioned, nor is the power of the legislature to change it. Said statute provides that judges and clerks of election are officers of the county 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 pleadings.” (Section 13, Art. II, City Election Act of 1885; Caldll’s St. ch. 46, ft 267.) This provision has been held constitutional. (Sherman v. People, 210 Ill. 552; People ex rel. Broomell v. Hoffman, 322 Ill. 174.) Discussing the same in the Sherman case the court said:

“It is next insisted by plaintiffs in error that the statute authorizing the court to proceed to hear the case without an affidavit or formal statement in writing as to the nature of the charge or accusation — in fact, without formal pleadings and upon oral testimony, in a summary manner — is unconstitutional, as it deprives the defendants of their liberty without due process of law. We do not see how this contention can be sustained.”

The court held that it was the intention of the act that proceedings under it should be “summary, vigorous and effective”; that the said provisions were enacted evidently for the purpose of preventing the delays formal proceedings required; that there is nothing in the act to prevent parties to such proceedings from having all of their rights under the law; that under them they could have a full and impartial hearing and the fullest opportunity of offering evidence in their own defense, and would still have the right of appeal to correct any errors committed, and that the act did not deprive them of liberty without due process of law.

That the legislature intended to abolish the common-law rule in this class of contempts can hardly be doubted from the language of the statute which expressly provides- for a trial “in open court on oral testimony in a summary manner without formal pleadings.” It is obviously inconsistent and would defeat the purpose of the statute to hold that the hearing thus contemplated may nevertheless be frustrated and prevented by respondents filing a pleading or sworn answer.

In Drady v. District Court of Polk County, 126 Iowa 345, 102 N. W. 115, the court held that a statute prescribing the course of procedure to be followed in contempt cases was a constructive repeal of the common law on the subject and within the power of the legislature to enact, saying that while it provided for a written explanation to be filed by the accused, it did not say that if the same were in effect a denial it would operate to preclude any further inquiry on the part of the court. In State ex rel. Lanning v. Lonsdale, 48 Wis. 348, 4 N. W. 390, the court held that whenever a statute prescribes the procedure in a prosecution for contempt, or limits the penalty, the statute controls. Like rulings in other jurisdictions have been made in construing similar statutes. (Herald-Republican Pub. Co. v. Lewis, 42 Utah 188, 129 Pac. 624; In re Buckley, 69 Cal. 1, 10 Pac. 69.) In State v. Froelich, 316 Ill. 77, discussing the provision in section 25 [Cahill’s St. ch. 43, [¶] 26] of the Prohibition Act (Laws of 1921, p. 692) for a trial on affidavits or oral examination in contempts for the violation of any injunction granted pursuant to said act, the court held that the plaintiff in error could not merely by his sworn answer purge himself of the contempt and be discharged, and that the practice authorized by that statute conforms to the practice in chancery to punish for civil contempts. We think the same may be said with respect to the provisions of the statute in question, and that plaintiffs in error could not properly be discharged on their answer.

It is further urged that if one is not purged by a sworn answer in such a proceeding he is nevertheless entitled to a trial by jury. This same contention was made before the Supreme Court in People ex rel. Broomell v. Hoffman, 322 Ill. 174. That was an original petition for mandamus for a writ to compel the sheriff of Cook county to execute an order of the county court committing to jail certain judges and clerks of election for contempt in a like proceeding to the one at bar. The respondents had been discharged from custody by a writ of habeas corpus. In their petition therefor they set up among other grounds for their release that they had purged themselves by their sworn answers in the contempt case and were denied a trial by jury therein. These contentions were treated as an answer to the petition for mandamus, thus presenting before the Supreme Court the same points urged here. Nevertheless the writ was awarded. It is improbable that it would have been had the claim of either purger or denial of right to trial by jury been well founded. While the court did not specifically discuss these points, others having been stressed before the court, we deem that case binding on us on all controverted questions raised therein bearing on the validity of the summary proceeding, thus rendering further discussion of the point unnecessary. We might add, however, that it was said in People v. Panchire, 311 Ill. 622: “A contempt proceeding is sui generis and may be considered as of the nature of a misdemeanor, but differs .from it in that it is not indictable but punishable summarily. No court has ever held that a party is entitled to a trial by jury in a proceeding for contempt in the absence of a statute so providing.” The court there drew a distinction between contempts and criminal offenses, and said that while the courts ■ would be compelled to try the latter by jury they had always held in this State that the right to a trial by jury is not violated in a contempt proceeding (pp. 628-629).

It is next urged that, the contempt being criminal in its nature, the action should have been brought by the State’s attorney. The distinction made between a contempt and a criminal offense in the Panchire case sufficiently answers this contention.

It is finally urged that the court was without power to punish by imprisonment. As the court in the Hoffman case practically upheld an imprisonment for the same period of time in a like case the contention is untenable.

Finding no error in the proceeding as to Sylvester and Menet we think the order as to them should be affirmed. But for the reasons stated it will be reversed as to C'arpino.

Affirmed as to two and reversed as to one of plaintiffs in error.

Gridley, P. J., and Fitch, J., concur.


source: Caselaw Access Project

author: Mr. Justice Barnes

license: Public Domain

text:
    First Trust and Savings Bank, Executor of the Last Will and Testament of James A. Murphy, Deceased, Defendant in Error, v. City of Park Ridge et al., Plaintiffs in Error.
    Gen. No. 30,851.
    1. Appeal and ereob — status of Appellate Court decision after reversal on one point without consideration of others. Reversal of the decision of the Appellate Court by the Supreme Court on one point in a case does not reverse on other points not considered by the Supreme Court.

      2. Municipal corporations — institution of suit upon assessment bond as equivalent to demand for collection of unpaid instalments. Institution of suit by owner of city assessment bonds to get judgment on the city’s indebtedness does not constitute a required demand of the city for collection of unpaid instalments by making appropriation bills and tax levy ordinances.
    3. Evidence — conditions upon admissibility! of carbon copy of letter. Carbon copy of a letter is not competent evidence without proof that the original was duly stamped and mailed or actually received.
    4. Mandamus — demand for performance of duty as prerequisite to right to writ. Demand that city collect unpaid instalments on assessment bonds must be made before action to compel such collection by mandamus is commenced.
    5. Mandamus — application of 5^/ear limitation to proceeding to enforce private right against city. Mandamus to enforce the private right to a collection by the city of instalments on assessment bonds for their private owner is subject to the 5-Year Statute of Limitations, Cahill’s St. ch. 83, % 16.
    Error by defendants to the Circuit Court of Cook county; the, Hon. Philip L. Sullivan, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1926.
    Reversed and remanded.
    Opinion filed December 21, 1926.
    Rehearing denied January 4, 1927.
    F. Wm. Kraft, for plaintiffs in error.
    George A. Mason, for defendant in error; Henry B. Mason and Henry E. Mason, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

This is an appeal from a judgment awarding a writ of mandamus against the City of Park Bidge, and certain persons who were officers thereof at the time the petition was filed, and also their successors, commanding them to proceed to cause to be collected certain unpaid instalments of a special assessment and to provide for the same in appropriation bills and tax levy ordinances.

The case comes here for a second time. On the first appeal we affirmed the judgment of the lower court awarding the. writ (see 219 Ill. App. 651, not published in full). On appeal to the Supreme Court the judgment was reversed and the cause remanded in 298 Ill. 66, to which reference is made for a full statement of the questions considered and decided. The ground of reversal was the failure of petitioner to allege a demand on defendants for the performance of the alleged duties sought to be enforced in the proceeding, which the court held was necessary to be averred and proven. After the cause was redocketed petitioner filed an amendment to the petition setting up the making of such a demand, and adding, as defendants, the officials of said City who had in the interim succeeded to those named in the original petition. Each set of officials filed their joint and several answers to the amended petition. The answers are alike as to the first thirteen paragraphs, a fourteenth paragraph, which presents no issue of fact but is mere argument, being added to the answer of the new officials. Demurrers were filed and sustained to most of the paragraphs of the answer, including one pleading the 5-Tear Statute of Limitations [Cahill’s St. ch. 83], and issues were taken and tried as to the others, including the averments of demand, the findings on which were for petitioner.

The only new issues brought into the case on remandment were the alleged fact of demand and refusal, and whether the 5-Tear Statute of Limitations pleaded did not bar the cause of action. Except as to them, the assignments of error present practically the same questions as were before us on the former appeal and before the Supreme Court. The Supreme Court expressly decided only three of the points argued, holding as to them respectively that the petition should aver a demand upon defendants to perform their alleged duty with respect to the matters sought to be enforced and a refusal to perform, and, as held by this court, that demurrers to the paragraphs pleading laches and the 10-Year Statute of Limitations were properly sustained by the trial court.

It is claimed, however, by defendant in error that all other questions raised on said demurrers, though not discussed or expressly decided by the Supreme Court, are not open for consideration upon similar or like assignments of error presenting them again, claiming that the former judgment of the Supreme Court is res adjudicata upon all such questions. It will be noted that the Supreme Court expressly stated that it did not consider, other points argued than those expressly passed on, and except as to them we do- not think the doctrine invoked is applicable. While we passed on such other points the Supreme Court did not, directly or impliedly, and we do not think it can properly be said that the reversal of our judgment, on the single question of the necessity of a demand, can be construed as a reversal also on unrelated subjects not considered by the Supreme Court. On remandment and new pleadings, we think the case was open to a renewal of claims made here and- in the Supreme Court that were not considered by the latter or covered in its order. So far as we passed on those points, we are disposed to adhere to our rulings on them, and therefore will not reconsider them, but shall consider only the new points raised, namely, as- to the sufficiency of the proof of alleged demand and as to the plea of the 5-Year Statute of Limitations.

The amended petition alleges demands were made June 11,1912, January 16,1917, and May 3,1922. The first of these alleged demands consisted of the institution of a suit by James A. Murphy against the City of Park Ridge in 1912 for money due on special assessment bonds, of which he claimed to be the owner, issued under the ordinance for the special assessment in question, in which the City appeared and filed a plea claiming that it was not indebted thereon. We cannot regard proof of the institution, of such suit for a judgment on the city’s indebtedness as tantamount to a required demand for the collection of the unpaid instalments on the assessment, and that it make the necessary appropriation bills and tax levy ordinances to meet it.

Proof of the second alleged demand consisted of a carbon copy of a letter addressed by Murphy’s attorney to the mayor and city council of the City of Park Bidge, January 16, 1917. But there was no adequate proof that the original was ever sent to the parties addressed either by mail or otherwise. The only testimony on the subject" was given by the attorney who wrote the letter, to the effect that he did not recall whether he mailed it or whether his stenographer put it in the mail “in the regular course of business,” and that his best recollection was that the letter was not mailed by him. No proof was adduced, however, that it was mailed by anybody else. The proof submitted amounted to mere conjecture. Without proof that the letter was duly stamped and actually mailed, or that the original letter was actually received, the carbon copy was not competent evidence, and had no tendency to prove a demand.

The third demand referred to was made after the case was remanded, too late to be efficacious. As indicated by the Supreme Court decision, a demand and refusal to perform constitute essential elements of the cause of action. Unless they were present when the action was brought it was prematurely begun. There was, therefore, no sufficient proof of a demand.

And we think the demurrer to the plea of the 5-Year Statute of Limitations was improperly sustained. While in its decision the Supreme Court said that “the only Statute of Limitations, if any was applicable, was the five-year limitation,” it did not undertake to decide the question, holding that it was not properly preserved for review. It did decide, however, that the proceeding is one to enforce a private right, and in People v. Town of Oran, 121 Ill. 650, where a petition for mandamus was filed to enforce a private right and the 5-Tear Statute of Limitations was pleaded, the court held “no public interest being involved, the Statute of Limitations might properly be pleaded.” We deem this ruling conclusive of the question and therefore the demurrer to said plea was improperly sustained. The case of Shepard v. People, 200 Ill. 508, cited by defendant in error, holding that the application for judgment of sale for a delinquent special assessment is not a “civil action not otherwise provided for” within the meaning of section 15 of the Limitation Act [Cahill’s St. ch. 83, [[16], requiring such actions to be begun within five years, has no application to an action of mandamus.

Whether on the facts presented any other remedy is open to petitioner in case he is barred by the statute is not within our province to discuss. For the reasons stated the judgment is reversed and the cause remanded.

Reversed and remanded.

Gridley, P. J., and Fitch, J., concur.


author: Mr. Justice Fitch

text:
    The People of the State of Illinois ex rel. Andrew Russel v. Michigan Avenue Trust Company. Studebaker Corporation of America et al., Intervening Petitioners, Appellants, v. John W. O’Leary, Receiver of Michigan Avenue Trust Company, Appellee.
    Gen. No. 30,496.
    1. Banking — recovery of identifiable deposits accepted by bank after knowledge of insolvency. Acceptance of deposits by bank when its managing directors know it is hopelessly insolvent, is such fraud on depositors as entitles them to reclaim their deposits.

      2. Banking — acceptance of deposits during insolvency known only to officer responsible therefor, as fraud of bank. Insolvency, solely known to and caused by one officer of a bank, does not make it fraud on the part of the bank to accept deposits after such insolvency.
    3. Banking — assent of directors to exclusive control of bank by president as affecting liability for deposits accepted after insolvency. Where bank directors gave president exclusive control of bank’s management, liability of bank for deposits accepted after insolvency was not affected by fact such condition was solely known to and caused by acts of such president.
    4. Banking — sufficiency of evidence to show fraud of bank in accepting deposits while insolvent. Evidence in suit to recover deposits made in an insolvent bank held to show such knowledge of the bank’s condition during three. days preceding its closing on the part of the president, vice president and cashier thereof as to render fraudulent the acceptance of deposits during such period.
    5. Banking — title of bank as to paper accepted for immediate credit subject to right to charge back if unpaid. Where a depositor is given immediate credit for paper deposited, subject to the right of the bank to charge back if not paid, the title to such paper passes to the bank, in the absence of any agreement to the contrary.
    6. Banking — title of bank as to paper accepted under special agreement for collection. Where a bank accepts paper from a depositor under a special agreement recited in pass-book establishing relation of agency for collection only, such agreement is binding as between the parties, and leaves the title to such paper, as between them, in the depositor.
    7. Banking — printed notice on pass-book or deposit slip as evidence of special agreement respecting title to deposited paper. Printed notice on bank pass-book or deposit slips furnished to depositor held competent and material evidence as to contract between parties respecting title to paper accepted for deposit.
    8. Negotiable instruments — rights of holder in due course as affected by ••agreement respecting title as between bank and depositor. Rights of third parties, holders in due course without notice, are not affected by agreement between bank and its depositor whereby bank assumes responsibility as agent for collection only.
    9. Banking — when special agreement affecting bank’s title to deposited paper not waived. Evidence in an action to recover paper deposited in insolvent bank held not to show waiver, by bank of rights under special contract whereby it assumed" responsibility of agent for collection only.
    10. Banking — when evidence insufficient ■ to show identification of individual deposits in insolvent bank. Balance in one bank on collections for another, made up of advances by first bank as well as collection items, held subject to too. many claims to permit identification of individual deposits made in second bank after its insolvency.
    Appeal by intervening petitioners from the Circuit Court of Cook county; the Hon. Oscab M. Tobbison, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed and remanded with directions.
    Opinion filed December 21, 1926.
    McCormick, Kirkland, Patterson & Fleming, Harris F. Williams & H. M. Pierce and Winston, Strawn & Shaw, for appellants; Harold Beacom and Louis G. Caldwell, of counsel.
    Defress, Buckingham & Eaton, for appellee; Matthew Mills and Tract Wilson Buckingham, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

This appeal is from a decree in a receivership proceeding, dismissing for want of equity the intervening petitions of 157 depositors, who sought to recover in full deposits made by them in the Michigan Avenue Trust Company, a State bank, on the last day it was open for business, and, in some cases, deposits made before the last day. The petitions and answers of the receiver were referred to a master in chancery, who heard the evidence and reported his conclusions, which, for the most part, were favorable to the petitioners. Exceptions to the master’s report were sustained by the court and thereupon the decree appealed from was entered.

The Michigan Avenue Trust Company was organized under the Laws of Illinois in October, 1910, with a capital stock of $200,000. It was closed by the State auditor on the morning of July 21, 1921, and about a month later, a receiver was appointed on a' bill filed by the auditor. At the time it was closed, the bank had deposits aggregating approximately $3,500,000, and its books showed a surplus of $50,000 and undivided profits of about $39,000. In his bill, the auditor states (and the statement is borne out by undisputed evidence) that among the assets shown on the books of the bank at that time there were “doubtful, worthless and missing assets” aggregating over $1,500,000, and it is clear from the evidence that because of that fact, the bank was then, and for a long time prior thereto had been, hopelessly and irretrievably insolvent, and that this condition was not only fully known to its president, but was brought about mainly by his defalcations- and forgeries. Whether such condition of insolvency was known to any other officer or director of the bank is the main question of fact involved on this appeal. Upon this question, the master found that the cashier, Clarence A. Beutel, who was also a director, “knew of the aforesaid state of insolvency from at least as early as the hour of 9 o’clock a. m., July 18,1921” (three days before the failure), and that the vice president, John A. Conrad, who was also a director, had “knowledge of facts indicating the aforesaid state of insolvency continuously since July 15, 1921.” The decree sustains the exceptions of the receiver to these findings and specifically finds that no officer or director of the bank, except the defaulting president, “had knowledge of the insolvency of said bank until after said bank closed for business,” and that the president’s knowledge of the bank’s insolvency is not imputable to the bank because notice to an agent is not notice to his principal where the agent is acting “in breach of his trust’ ’ and it is to his personal interest to conceal the information from his principal.

Petitioners claim, first, that the bank’s condition of hopeless insolvency was actually known to the president, vice president and cashier (who were also directors of the bank), for a period of at least six days before the bank was closed by the auditor; that, because of such knowledge on the part of its officers, the bank was guilty of fraud in accepting deposits from the petitioners during that period, and that on account of such fraud the petitioners are entitled to rescind the transactions and recover their deposits in so far as the same can be traced or identified; second, that as to all checks deposited in the bank the relation between the depositor and the bank was that of principal and agent, and not creditor and debtor, until the proceeds of such checks were received by the bank; that until then, the title to the checks and the proceeds thereof remained in the depositor; that in all cases where such checks were not collected, or where, if collected, the proceeds had not been received by the Michigan Avenue Trust Company when it was closed, the depositors are entitled to a return of the checks or the proceeds thereof. The receiver contends, as to the first claim, that as a matter of law the defaulting president’s knowledge of the bank’s insolvency cannot be imputed to the bank, and that as a matter of fact, no other officer or director had any knowledge of such insolvency prior to the closing of the bank; and contends, as to the checks of petitioners, that the relation between the bank and petitioners was the usual relation of debtor and creditor, and also that in any event, except for the last-day deposits, such checks or their proceeds cannot be traced into the receiver’s hands.

First, as to the claim of fraud in accepting the last day’s deposits. The rule is well settled that the acceptance of deposits by a bank at a time when, to the knowledge of its managing officers, it is hopelessly insolvent, is a fraud upon the depositors such as will entitle them to- rescind the transactions and reclaim their deposits, so far as they can be identified. (St. Louis & S. F. Ry. Co. v. Johnston, 133 U. S. 566, 576; Cragie v. Hadley, 99 N. Y. 131; Orme v. Baker, 74 Ohio St. 337; Knaffl v. Knoxville Banking & Trust Co., 130 Tenn. 336; American Trust & Savings Bank v. Gueder & Paeschke Mfg. Co., 150 Ill. 336; Board of Sup’rs of Lunenburg Co. v. Prince Edward-Lunenburg County Bank, 138 Va. 333, and notes in 20 A. L. R. 1206, and 37 A. L. R. 604.)

To this rule, an apparent exception is recognized in cases where the condition of insolvency was caused by and known only to a defaulting officer of the bank. (Perth Amboy Gaslight Co. v. Middlesex County Bank, 60 N. J. Eq. 84, 45 Atl. 704; First Nat. Bank of Hancock, Md. v. Aler, 92 W. Va. 313, 114 S. E. 745; Fidelity & Deposit Co. of Maryland v. Kelso State Bank, 287 Fed. 828.) This exception, and the reason for it, are stated as follows in Merchants’ Nat. Bank of Peoria v. Nichols & Shepard Co., 223 Ill. 41, 53: “To the general rule that notice to the agent is notice to the principal there is a well defined exception, that notice will not be imputed to the principal where the facts authorize the inference that the agent will conceal the information. That is the presumption where it would be detrimental to the agent’s interests to disclose the facts.”

It is generally held, however, that where the directors have authorized or permitted a defaulting officer to have the entire management and control of the bank, the exception thus stated does not apply, for in such cases, he is the bank, in effect, and therefore his knowledge is that of the bank. (Orme v. Baker, supra; Eastin v. Bank of Harrisonville, 213 Mo. App. 130; Mays v. First State Bank of Keller (Tex.), 247 S. W. 845; First Nat. Bank of Morristown, Tenn. v. C. W. Leeton & Bro., 131 Miss. 324, 95 So. 445; Cragie v. Hadley, supra; St. Louis & S. F. Ry. Co. v. Johnston, supra; Wasson v. Hawkins, 59 Fed. 233; Pennington v. Third Nat. Bank of Columbus, Ga., 114 Va. 674, and 29 L. R. A. (N. S.) 558 note, where the cases on this subject are collected.)

It is clear from the evidence that for at least a year before the failure the directors of the Michigan Avenue Trust Company had permitted the president to run it as he saw fit. He was in full control and was the active manager. The books show that there were directors’ meetings, but during the last year, at least, such meetings appear to have been called by the president for the sole purpose of ratifying his acts, which was done without question.

Under these circumstances, if the evidence failed to show that any other officer or director had knowledge of the bank’s condition of insolvency, we should be inclined to hold that the situation here was similar to that in St. Louis & S. F. Ry. Co. v. Johnston, supra, where the court said: “This bank was hopelessly insolvent when the deposit was made, made so apparently by the operations of a firm of which the president of the bank was a member. The knowledge of the president was the knowledge of the bank.”

However, in the view we take of the facts of this case, it is unnecessary for us to determine whether the knowledge of the president alone was, of itself, sufficient to make the bank’s acceptance of petitioners’ deposits a fraud upon them. We think the clear preponderance of the evidence shows that in addition to the president, the vice president and the cashier also had actual knowledge of the insolvency of the bank for months before the failure, and that the vice president, as early as July 15, 1921, and the cashier, as early as July 18, 1921, knew that the insolvent condition of the bank had then become hopeless and irretrievable. The following is a statement of the pertinent facts and circumstances in evidence on this subject.

The president, Warren C. Spurgin, was born on a farm near Panora, a small village located in Guthrie county, Iowa, and grew up in that vicinity. He had some banking experience as cashier of the bank at Panora, of which his uncle, George M. Reynolds, who later became president of the Continental and Commercial National Bank of Chicago, was at one time cashier and manager. In 1914, through the influence of his uncle, Spurgin obtained employment with the Michigan Avenue Trust Company as assistant cashier. He bought some stock in the company, and thereafter became, in succession, its cashier, vice president, and, in 1919, its president. In March, 1917, while he was cashier, he committed the first of a series of forgeries. He forged the name of David Hopkins, a retired farmer living at Panora, to a 5-year mortgage for $25,000, and caused entries to be made on the Trust Company’s books showing that this mortgage had been purchased by it at that time. To pay for it, he drew a cashier’s check, payable to the Guthrie County National Bank at Panora, Iowa, and deposited the same to his personal account in that bank. A month later, he caused the Trust Company to discount a note for $15,000 forged by him, purporting to be signed by one Hart, who had formerly lived in Panora, and to credit the proceeds to a checking account which he opened in Hart’s name, all of which he drew out later on forged checks. In like manner, from time to time during the following four years, Spurgin caused the Trust Company to purchase many similar forged mortgages and to discount many similar forged notes for large sums, usually $20,000 or $25,000, purporting to be signed by persons who lived, or had lived, in or near Panora. The proceeds of some of these forged mortgages went to Spurgin’s credit at the Guthrie County Bank at Panora, and the interest on the mortgages as it fell due was paid by his check on that bank. The proceeds of the rest of such forged mortgages and of the forged notes were credited to accounts opened by Spurgin in the Michigan Avenue Trust Company, in the names of the fictitious signers of the notes, and paid out on their purported checks forged by him. On July 15, 1921, more than 50 of these forged notes and mortgages, aggregating $1,054,988.33, had accumulated in the bank. Among them was a note for $37,500 purporting to be signed by Spurgin’s daughter, and another for $15,000 to which he had forged his brother’s name. Usually, when a fictitious account was opened by him in the manner above indicated, the forged note was accompanied by a “financial statement” and “signature card” of the fictitious maker, both written by Spurgin. In some instances, the financial statement thus filed contained nothing more than the signature of the fictitious maker. None of the mortgages was ever recorded.

During the four years in which Spurgin, in this fashion, abstracted over a million dollars from the bank’s funds, Conrad and Beutel occupied positions in the bank, the duties of which required them to see, and often to handle, these forged notes and mortgages. In September, 1920, Conrad became vice president, and Beutel cashier, and both were elected directors. The evidence shows that the forged notes were kept in a note-pouch to which both had access at all times. Conrad testified that “generally, the cashier got the pouch out of the vault every morning and put it on his desk to check the maturity dates of paper approaching maturity,” and that “we would all do that, the president, vice-president and cashier.” The chief clerk testified that, ordinarily, the financial statements would go to Beutel, and when a note was to be renewed, Conrad would O. K. the renewal note and then it would be filed in the note-pouch. Some of the notes were inclosed in envelopes, upon the outside of which Conrad wrote the name of the maker and the maturity and interest dates. Beutel testified that every note that came into the bank found its way into the note-pouch, whether the note was taken by Spurgin, Conrad or himself; that he carried the pouch out of the vault every morning and kept it on his desk; that the mortgages were ordinarily kept in the vault and he saw and handled them when interest coupons were cut off, and at other times. The coupons were cut off by Beutel, who put them on Spurgin’s desk, and the latter paid for them with his personal check; Both Conrad and Beutel were well acquainted with the handwriting of Spurgin. On the witness stand Beutel identified many notes, checks and other documents written or signed by Spurgin. Beutel told Mr. Reynolds, before noon on July 18, 1921, that “he was sure” many of the notes and mortgages on which Spurgin paid the interest were “phony” — meaning forged. James I. Ennis, a handwriting expert with a long experience as a paying teller in a Chicago bank, testified that the forgeries were so obvious that, in his opinion, anyone familiar with Spurgin’s handwriting would at once recognize the signatures as having been written by Spurgin.

It further appears that among the bank’s assets at the time it was closed were notes aggregating $455,500, representing loans to the Graff Manufacturing Company, a concern which, manufactured automobile bodies, and which (according to the testimony of a public accountant) had been hopelessly insolvent for months prior to July, 1921. On July 14, 1921, Beutel was sent to New York by Spurgin, ostensibly to see what could be done towards collecting a recent overdraft of $56,000 by that company, and while there he ascertained that the overdraft could not be paid. It is a fair inference, from this and other evidence as to' that loan, that Beutel then knew that it was a desperate, if not uncollectible, asset. That loan was for more than twice the capital stock of the bank.

The evidence further shows that Spurgin was the owner of, or interested in, five or six oil and mining companies of little worth, which were heavy borrowers from the bank. Conrad was an officer of at least two of these companies, and Beutel testified that he knew that fact. Beutel also testified that about the middle of June, 1921, he discovered that the bank was carrying as assets two notes, aggregating $38,000, which had been given to Spurgin “for an interest in an oil deal,” but which had been settled or paid and should have been destroyed or returned to the signers, and on July 1,1921, he spoke to Spurgin about these notes, and took occasion at the same time to object to Spur-gin’s taking notes from his own oil and mining companies, to which Spurgin replied that he did not feel that Beutel was in a position to say what loans Spur-gin should or should not make; that thereupon Beutel tendered his written resignation, to take effect July 15, and at once told A. B. Sherwood and Henry Paul-man, two of the directors, the facts regarding the Graff Manufacturing Company loan, and the two notes last above-mentioned, and the loans made by Spurgin to his own companies. Beutel testified that when he told them about the Graff loan, he used the term ‘‘ crooked. ’ ’ Sherwood suggested that an audit of the books be made. Spurgin at first refused to pay the expense of such an audit, but finally after a talk with Mr. Reynolds, whose aid was enlisted by Paulman, he agreed to have an audit made on July 15. On that day, he disappeared carrying with him, as we understand the record, at least $125,000 in large bills of the bank’s money, taken from the paying and receiving teller’s cages on that day.

Meantime, he had apparently endeavored to destroy the evidence of his forgeries. On July 6, 1921, he took from the vault the forged notes of his brother and daughter, and put in their place an equal amount of bonds of one of his doubtful enterprises. On July 11, he took from the vault five forged notes aggregating $94,500, and put in their place several thousand shares of “Hawkeye Oil” preferred stock and 1,000 shares of “Consumers’ Service Station” preferred stock. The envelope in which the latter stock was filed contained a description of the stock in Conrad’s handwriting. On July 14, Spurgin took from the bank other forged notes, aggregating $67,800, and replaced them with worthless bonds of mining and oil companies in which he was interested. One of the debit slips from which this transaction was entered on the hooks bore the “O. K.” of Conrad. On July 15, while Beutel was in New York, Spurgin took from the bank the rest of the forged notes above-mentioned, and forged farm mortgages totaling about $75,000, and put in their place worthless bonds having a par value of $664,000 issued by three of his oil and mining companies. All but $100,000 par value of these bonds were dated July 1, 1921. They had just been printed. Conrad was named as trustee in some of them and Spurgin in others. At the same time, 29 fictitious bank accounts, which had been opened by Spurgin, in the manner above stated, were closed out and the balances, together with the bonds above-mentioned, were ostensibly used (as.shown by the books) to pay for the notes and mortgages which they replaced, aggregating over $800,000 in face value. The rest of the forged farm mortgages were also then taken out, and “trust receipts,” signed by Spurgin, were substituted.

Conrad discovered these bonds in the vault the evening of July 15. He examined them but said nothing to anyone at that time. The next day he received a letter from Spurgin, written on the stationery of a Chicago hotel, stating that he “was going out of town,” but would be back the following Wednesday (July 20), and asking Conrad to send the books of one of his mining companies. to the superintendent in Ouray, Colorado, which Conrad did immediately.

On Monday morning, July 18, 1921, Beutel returned from New York, having been absent since the 14th. He went to the bank, and as he was looking through his mail, Conrad told him that Spurgin had put into the bank about $600,000 worth of mining and oil company bonds, in which he, Conrad, was named as trustee, but of which he knew nothing. Beutel looked at the bonds in the vault. He testified that “because of the exceptional amount of the issues and knowing Spurgin’s interest in these companies, but without knowledge of the financial ability of the companies, I felt they were not the kind of stuff for investment by a bank, from a liquid standpoint, and I told Conrad to take care of the ship while I conveyed this information to my directors.” He immediately carried his information to Sherwood and Paulman. One of them suggested talking the matter over with Reynolds, and that was done at once.

According to Reynolds’ testimony, he was then informed by Beutel that Spurgin had gone away, leaving a letter saying he would return on the 20th, and had taken out of the bank a large amount of notes, which he “was sure were phony,” and $175,000 in mortgages on farms in Guthrie county, Iowa, which he “was afraid were not all right,” and had substituted $650,000 in bonds of Spurgin’s own companies; that he thought Spurgin had sent him away to get rid of him while he made this transfer; and that the bonds had been printed while he was away. He gave Reynolds a list of the notes which had been taken away and showed Reynolds some of the forged checks which (Beutel said) “he thought were all signed by Spur-gin.” Reynolds told Beutel to ascertain at once what value there was, if any, back of the bonds, “because upon that hinged the whole question of the solvency of his bank.” Reynolds said that he could and would ascertain whether the farm mortgages were good, as the names on them were those of men he had known when he lived in Panora. During that day and the next, Reynolds made inquiries which satisfied him the mortgages were forged, and about noon on July 20, he told Beutel and Paulman so. He asked them what they had found out regarding the bonds. Beutel replied that “he did not know any more than he did before, tut he was of the opinion that they were not of much value.” Reynolds then said that apart from the value of the bonds, it was evident that the bank was insolvent because of the loss on the mortgages and the Graff loan. It was arranged to have a bank examiner call at the bank the next morning, and, meantime, Reynolds advised Beutel to segregate that day ’s deposits “so that if the court saw fit, they could be handed back to the people who made them.” Pursuant to Reynolds’ advice, the deposits of that day were segregated that night by attaching to each of the deposit slips the identical checks deposited and an amount of cash, taken from the receiving teller’s cage, equal to the amount of cash shown by the deposit slip. It was the custom of the bank' (which was followed on that day) to have the receiving teller start out each morning with no money on hand and to keep in his cage all moneys received during the day, so that at the close of the day, all the currency received that day from depositors, and no other, was in his cage. Five checks, aggregating $1,256.30, which were received by early mail and which were at once deposited in a clearing house bank, were the only checks received that day that were not thus segregated.

The bank examiner arrived before banking hours on July 21, and ordered the bank closed. Beutel turned over to him the segregated last day’s deposits and he deposited the same in a special account in the Continental and Commercial National Bank.

Both Beutel and Conrad denied on the witness stand that they knew the bank was- insolvent at any time prior to the time it was closed. We think this denial is overcome by the evidence of the facts and circumstances. Beutel testified that the first information he had “that it was possible the bank was insolvent” was the time when Mr. Reynolds told him that “unless he could get better information on those bonds, the bank was insolvent. ’ ’ He testified that conversation occurred on the afternoon of July 20. Mr. Reynolds testified that it occurred during the forenoon of July 18. We have examined the testimony of Mr. Reynolds in the record, and are convinced that his story is the more reasonable and probable. If his testimony is to be believed, and we think it is, Beutel’s statements to him on the morning of July 18 show beyond question that he had full knowledge of the insolvent condition of the bank at that time. Possibly Beutel and Conrad may have hoped Reynolds would come to the rescue. There is evidence tending that way. But if so, the hope had no reasonable basis, and was dissipated,, in any event, by what occurred on July 18.

We are therefore of the opinion that in the acceptance of the petitioners’ deposits on July 18, July 19 and July 20, the bank was guilty of such fraud as entitled the petitioners to rescind the transactions and recover their deposits, in so far as the samé can be traced or identified. We think it is clear that all the last day’s deposits, except the five checks above-mentioned that came into the bank in the early mail on the morning of July 20, were sufficiently traced and identified. Those five checks, according to the evidence, were sent at once through the clearing house and thereby their identity was lost and the rights of third parties to the same intervened. It follows that all the deposits made on the last day, which were segregated and turned over in that form to the receiver, never became the property of the bank, nor of its receiver, but were and are the property of the petitioners, and they are entitled to have the same, or the proceeds thereof now in the possession of the receiver, returned to them.

Second. As to the claim of the petitioners concern- ' ing checks that were deposited by them prior to the last day, and which were not collected at the time the bank closed, the only real controversy between the parties is as to the effect to be given to the fact that upon the inside of the cover of every pass-book issued to the petitioners was printed the following notice:

‘ ‘ Checks on this bank will be credited conditionally. If not found good at close of business, they will be charged back to depositors, and the latter notified of the fact. Checks on other city banks will be carried ■ over for presentation through, the Clearing House on the following day.
“This bank in receiving checks or drafts on deposit or for collection, acts only as your agent, and beyond carefulness in selecting agents at other points, and in forwarding to them, assumes no responsibility. ’ ’

The part of this quotation that is material to the present question is the second paragraph. Petitioners claim that under that paragraph the bank acquired no title to checks deposited by the petitioners until they were collected, for the reason that the bank thereby expressly stipulated that it received such checks merely as the agent of the depositor for collection and not as a purchaser thereof.

Upon the general question whether the title to checks deposited by a customer of a bank to his account passes to the bank by an unrestricted indorsement of the paper deposited, the authorities are not harmonious. The cases on that subject are collected in exhaustive notes to be found in 11 A. L. R. 1043, 42 A. L. R. 492, and 47 L. R. A. (N. S.) 552. Petitioners’ counsel concede that the majority view is that where a deposit of that kind is made and immediate credit is given to the depositor, subject to the right on the part of the bank to charge back any check or draft that is not paid, the title to the paper passes to the bank, and the relation thereby created between the bank and the depositor is that of debtor and creditor, in the absence of any agreement to the contrary. This rule is recognized in Illinois in the following eases: American Trust & Savings Bank v. Gueder & Paeschke Mfg. Co., supra; Doppelt v. National Bank of the Republic, 175 Ill. 432; American Exch. Nat. Bank v. Loretta Gold & Silver Min. Co., 165 Ill. 103, and Anderson v. Keystone Chemical Supply Co., 293 Ill. 472. But it is contended by petitioners, and we think correctly, that where there is an agreement between the depositor and the bank, such as is indicated by the printed provision in petitioners’ pass-books, the agreement is binding on the parties to it, and as between themselves, the bank becomes merely the depositor’s agent, the title to the paper remaining in the depositor. This was the view taken by the Appellate Court of this district in Chicago Title and Trust Co. v. Household Guest Co., 88 Ill. App. 126, and in Home Bank & Trust Co. v. Bogorad, 242 Ill. App. 16.

So far as we are advised, this precise question has not been before the Supreme Court of this State. In other States, there is no dissent from the general proposition that the question is fundamentally one of intention (11 A. L. R. 1045), to be determined by the facts and circumstances surrounding the deposit, and among such facts and circumstances, the authorities generally regard a printed notice in the depositor’s pass-book, or on the deposit slips, as very material, if not conclusive evidence of such intention. (In re State Bank, 56 Minn. 119; South Park Foundry & Machine Co. v. Chicago Great Western Ry. Co., 75 Minn. 186; King v. Bowling Green Trust Co., 145 App. Div. 398, 129 N. Y. Supp. 977; Spooner v. Bank of Donaldsonville, 144 Ga. 745; First Nat. Bank of Blanchester v. Stengel, 169 N. Y. Supp. 217, affirmed without opinion in 185 App. Div. 906, 171 N. Y. Supp. 1085, which is also affirmed in 227 N. Y. 659; People’s State Bank v. Miller, 185 Mich. 565; In re Jarmulowsky, 249 Fed. 319; Old Nat. Bank of Spokane v. Gibson, 105 Wash. 578, 179 Pac. 117.)

In a number of cases cited by counsel, where the rights of third parties, who had become holders in due course without notice, were involved, such an agreement between the bank and its depositors was either disregarded or held not to prevent the title to the paper from passing to’ the bank. As this suit is between the original parties, however, such cases have no bearing upon the question here involved. This distinction is recognized in terms, in National Bank of Commerce v. Bossemeyer, 101 Neb. 96.

Four cases only are cited by counsel for the receiver as holding a different view from that of the authorities above cited. Two of such cases, viz.: Amalgamated Sugar Co. v. United States Nat. Bank of Portland, Oregon, 187 Fed. 746, and Plumas County Bank v. Bank of Rideout, Smith & Co., 165 Cal. 126, 131 Pac. 360, are in the category last above-mentioned of cases in which the rights of third parties without notice had intervened and are, therefore, not in point. The third is Los Angeles Inv. Co. v. Home Sav. Bank of Los Angeles, 180 Cal. 601, 182 Pac. 293. In that case, a depositor sued his own bank to recover money ■ obtained from the bank by his employee by means of forged drafts. There was a printed provision in the pass-book requiring the depositor to examine his canceled checks within ten days after they were returned to him, and the bank defended on the ground that plaintiff had not done so. The court said that this provision came “within the category of traps for the unwary,” and that in the absence of any evidence showing that it was particularly called to the attention of the depositor, it could not be “given effect as a contract binding upon the depositor and changing in a substantial particular the relation which presumably he thought he was entering into.” This conclusion, which gives more effect to’ a supposed presumption than to what appears to have been the contract between the parties, is opposed to the general current of authority. But even if it were not, the case is not in point here. A depositor might complain, perhaps, that such a notice printed in his pass-book was “a trap for the unwary,” but certainly the bank who prepared it and caused it to be printed in the pass-book could not be heard to say it was trapped. The other case cited is Summers v. Hibbard, Spencer, Bartlett & Co., 153 Ill. 102, where it was held that the words “All sales subject to strikes and accidents,” printed in small type at the top of a letterhead, formed no part of a letter, written upon such letterhead, accepting without qualification an unconditional offer. There the court found, as a fact, that the contract between the parties was evidenced by the written offer and written acceptance, with which the printed letterhead was inconsistent. Here the best evidence of the contract is the printed stipulation in the pass-books, and nothing inconsistent-therewith is shown by the evidence. It was, of course, not incumbent on the petitioners to prove that the printed notice in their pass-books was particularly called to the attention of the bank which wrote it and put it there.

Counsel for the receiver argues that the agreement shown by the pass-books was disregarded by the parties and thereby waived. We do not so understand the evidence. While it appears that immediate credit for the amount of out-of-town checks deposited was given in most cases, and depositors were permitted to draw against such credits before the checks were actually collected, such facts alone are not sufficient to show that the parties intended to abandon their express agreement. (First Nat. Bank of Blanchester v. Stengel, supra; St. Louis & S. F. Ry. Co. v. Johnston, supra.) On the other hand, the evidence shows that the bank availed itself of the pass-book provision whenever it was to its advantage to do so. On one occasion, a few mónths before the bank closed, seven checks deposited by one of the petitioners were lost in a mail robbery, and the bank, through Beutel, its cashier, notified the depositor that it had charged back the seven checks to the depositor’s account, and when asked why this was done, replied that the checks were received for collection only and the bank was acting only as the depositor’s agent, and therefore the depositor must bear the loss. The receiver points out that it appears from Beutel’s testimony that when checks were deposited at the collection window instead of the receiving teller’s window, no credit'was given until the checks were paid. This is true, but as we understand his testimony, the collection teller’s transactions referred to — constituting about one per cent only of the total deposits — were confined to checks that were deposited for some special purpose or account, such as for collection and remittance, or for certification and return.

A more serious question arises, however, when we come to consider whether the proceeds of the checks of petitioners which were collected after July 20,1921, have been traced by the evidence into any fund now in the receiver’s hands. The evidence shows that it was the practice of the Trust Company to clear its Chicago checks through the Continental and Commercial National Bank and to clear its out-of-town checks through either the Cedar Rapids National Bank of Cedar Rapids, Iowa, or the Hanover National Bank of New York City, under agreements with those banks similar to that of the Trust Company with its depositors. When such checks were received by those banks from the Trust Company, they were immediately credited to the account of the Trust Company and the latter drew against the same> often before the checks were collected, its drafts for large, even amounts payable to the Continental and Commercial National Bank, and deposited such drafts in that bank to meet its Chicago clearing house obligations. It appears that the books of the Cedar Rapids bank showed a credit balance at the close of business on July 20, 1921, of $139,125.59. That balance, however, did not represent the proceeds of collected checks, hut represented the amount which would be due thereafter to the Trust Company when all the deposited checks had been collected. Most of the balance so shown on the books represented checks that were then in the course of collection, but not in fact collected at that time. During the last five days the Trust Company did business, it deposited with the Cedar Rapids bank in this manner checks aggregating $367,880.60, and during the same five days, the C'edar Rapids bank paid out on drafts of the Trust Company, to the Continental and Commercial National Bank, $420,000. On July 19, the Cedar Rapids bank received from the Trust Company a deposit of checks aggregating $78,881.86, which was at once credited to the account of the Trust Company, and on July 20, in like manner, the Iowa bank received from the Trust Company a deposit of checks aggregating $53,789.09. Most, if not all, of the checks included in these last two deposits, and doubtless many of the checks included in the deposits of a day or two before July 19, were in process of collection, but not in fact collected, when the insolvent bank closed. The account of the Cedar Rapids bank shows that on July 21, 1921, the day the insolvent bank closed (presumably on the morning of that day before the Cedar Rapids bank received notice of that fact) one of the drafts above-mentioned, amounting to $75,000, was paid by it to the Continental and Commercial National Bank, leaving a balance at that time (on the books of the Cedar Rapids bank) to the credit of the Trust Company of $63,360.61. The account also shows that after the Trust Company failed, many checks that had been deposited by the Trust Company were returned uncollected and were charged back to the Trust Company’s account. On September 7, 1921, when the receiver was appointed, the credit balance in favor of the Trust Company had dwindled to $39,794.25, and that amount was paid over to the receiver. In like manner, the result of similar deposits and credits on the account of the Hanover National Bank resulted in that bank paying over to the receiver, on September 7, 1921, the sum of $38,381.53.

It is into the balances thus received from the correspondents of the insolvent bank that some of the petitioners seek to trace the proceeds of their deposits other than the last day’s deposits.' Three of them introduced checks aggregating $616.67, which they had deposited on July 18 and 19, and which, as shown by the indorsements thereon, were collected by the Hanover National Bank after July 20,1921. Fifteen other petitioners introduced checks deposited by them aggregating $36,913.10, which they had deposited during the four days immediately preceding July 20, and which, as shown by the indorsements thereon, were paid to the Cedar Rapids bank after July 20. The Western Motor Car Company, an intervening petitioner, whose petition was heard and considered with the others, but who has perfected a separate appeal, introduced like checks aggregating $2,153.10, deposited on July 19 and collected by the Cedar Rapids bank on July 21 and 22. Two other petitioners, who, after the master’s report was filed, were allowed to make additional proofs, introduced canceled checks of the same character aggregating $24,357.62, deposited by them during the four business days preceding July 20, and collected thereafter either by the Cedar Rapids National Bank or by the Hanover National Bank. The record does not show how much each bank collected. By agreed orders entered of record, these additional claims were included in the master’s finding and in his recommendation that all such claims be allowed as preferred claims.

The decree does not follow the master’s recommendations but finds that the proceeds of these deposits cannot be traced into any fund that came into the hands of the receiver. In this respect, we think the decree was correct. From, the evidence adduced, we think it is impossible to find that the proceeds of any particular check or deposit, that was collected after the bank closed, can be traced into or identified as forming a part of either of the balances that were paid over to the receiver. It is undoubtedly true that such balances represent part of the proceeds of checks that were deposited before July 20 and collected thereafter, but it is also true that another part of such proceeds, and probably the larger part, was used by the collecting bank to repay it for the amounts it had advanced and paid, on the security of such deposits, to the Continental and 'Commercial National Bank. For aught that appears, the proceeds of petitioners’ checks may have been the first collected and may all have been transferred in the manner above described to the last-mentioned bank in settlement of balances due to the Chicago clearing house. At any rate, the evidence leaves it very uncertain whether that is or is not the fact, and this being true, the principle announced in Bayor v. American Trust & Savings Bank, 157 Ill. 62, is applicable. It was there said: “It has frequently been announced as the law of this State, that even in a case where a definite and actual trust fund, which possesses all the attributes of a separate and distinct identity, has been so mixed and mingled with other funds as to render identification impossible, the cestui que trust, in the event of the insolvency of the trustee, is remitted to the position and the rights of a general creditor.” See also Lanterman v. Travous, 174 Ill. 459, where the principle thus announced was followed and applied.

The petition of Frank D. McFadden and Mary McFadden must also be denied for the same reason, viz: That the proceeds of their deposit cannot be identified. The petition of Margaret Bushnell, who asks only for the return of a check which was never collected, should be allowed. The petition of D. N. Simpson should be disallowed, in our opinion, for the reason that the proceeds of his unsigned check on another bank were mingled and dissipated in the general funds of the bank, and therefore his claim is that of a general creditor only for money had and received.

The decree of the circuit court will be reversed and the cause remanded with directions to enter a decree in comformity with the views hereinabove expressed.

Reversed and remanded with directions.

G-ridlby, P. J., and Barnes, J., concur.


text:
    In re Estate of Kaspar G. Schmidt, Deceased. Talitha H. Kellner and George W. Kellner, Executors of the Last Will and Testament of Barbara E. Kellner, Deceased, Plaintiffs in Error, v. George K. Schmidt, Individually and as Surviving Executor of the Last Will and Testament of Kaspar G. Schmidt, Deceased. Edna P. Wahl and Kate E. Herbert, Defendants in Error.
    Gen. No. 30,882.
    1. Appeal and error — construction of decision reversing decree as to one item of account hut affirming same “in all other respects.” The expression that a decree, reversed as to certain items of an executor’s account, was “in all other respects” affirmed, means, not that all the rest of the account, but that all the rest of the account covered by appeal, was affirmed.
    2. Estoppel — when plea of estoppel to seele modification of allowance of claims against estate of decedent negatived: hy recordt. Plea of estoppel, on ground that plaintiffs in error had adopted the attitude of the lower court granting certain claims of one of defendants in error as to the estate in dispute, is negatived by record showing that such allowance was not made on motion of plaintiffs in error hut of said defendants in error.

      3. Appeal and error — matters reviewable on appeal from, part of severable decree. Where an appeal is perfected from part only of a severable decree, cross-errors as to another part of the decree cannot be considered; and a plea of former adjudication, based on the fact of such ineffectual assignment of cross-errors, is not a good plea to a subsequent writ of error from the other part of the decree.
    4. Appf.at. and error — confession of error by filing plea of former adjudication. Filing of plea of former adjudication to a writ of error is in effect a confession of error.
    Error by plaintiffs to the Circuit Court of Cook county; the Hon. Ira Ryner, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1926.
    Pleas overruled and decree reversed and remanded.
    Opinion filed December 21, 1926.
    Wyman, Hopkins, McKeever & Colbert, for plaintiffs in error; Austin L. Wyman, of counsel.
    Bryant, Meneely, Irrmann & Lews, for Kate E. Herbert, defendant in error. Miller, Gorham, Wales & Noxon, for George K. Schmidt, defendant in error. Cutting, Moore & Sidney, for certain defendants in error.
   Mr. Justice Fitch

delivered the opinion of the court.

This writ of error is prosecuted from part of the same decree which was considered by this court in Wahl v. Schmidt, 237 Ill. App. 372.

In that case, known as No. 29360, George K. Schmidt, the surviving executor of the last will and testament of Kaspar G. Schmidt, deceased, appealed from the decree of the circuit court as to certain specified items of his final account as such executor, and by the final order entered in this court on that appeal, the decree was reversed as to some of such items, including ‘ ‘ all items referring to advancements made to Barbara E. Kellner, to excess payments to her of income thereon, and to overpayment to her of partial distribution and interest thereon”; and as to such items the cause was remanded with directions to the circuit court to restate the account in accordance with the views expressed in the opinion filed in that case.

In this case, the executors of the last will and testament of Barbara Kellner, deceased, seek to have a similar order entered with reference to other items of the same character, purporting to show the amounts of like advancements and overpayments made to Mrs. Herbert, by applying to such other items the same rules that were applied in No. 29360 to the items showing the amounts of advancements and overpayments to Mrs. Kellner. The assignments, of error question the allowance, by the decree of the circuit court, of the item of $61,265.12, as the distributive share of Mrs. Herbert, and of the. items charged for advancements, excess payments of income and overpayments of partial distribution to her which enter into the computation of that amount as her distributive share.

To these assignments of error, defendants in error have filed pleas of former adjudication and of estoppel, all based upon matters appearing upon the records and files of this court in this case and in No. 29360.

In the pleas of former adjudication, it is alleged that the identical questions sought to be raised in this proceeding were raised in No. 29360 by cross-errors which were assigned by the executors of Barbara Kellner, deceased, and afterward waived by not being argued. To each of these pleas, a replication was filed stating, in substance, that in No. 29360 the subject matter of the appeal was expressly limited, by the order allowing such appeal, to the question of payments to be made to the executors of the will of Barbara E. Kellner, deceased, that in none of the 53 assignments of error as amended was the action of the circuit court, in failing to charge Mrs. Herbert with the value of the advancements made to her, or over-payments to her, raised or brought in question, and that this court held, in its opinion filed in that case, that therefore no question as to the amounts properly chargeable to Mrs. Herbert could be raised by the assignment of cross-errors on that appeal. To the replication to the plea filed by George K. Schmidt, he filed a rejoinder stating that, before he appealed from the decree of the circuit court, he made a complete and final settlement with Mrs. Herbert of all his liabilities to her, both individually and as surviving executor and trustee of the estate of Kaspar G. Schmidt, deceased, including as a part of such settlement the payment to her of the amounts, respectively, ordered to be paid to her by the decree of the circuit court, and that because of this settlement he did not file any assignment of error in No. 29360 complaining of the action of the circuit court in failing to charge her with the proper amounts she had received in advancements and overpayments.

From the record in No. 29360 (which, by the oral agreement of counsel, is considered as evidence on the issues made by the pleadings mentioned), it appears that the appeal of the executor in that case was expressly limited to such items of his account as required payment to be made to Mrs. Kellner’s estate. The opinion in that case shows that we held that cross-errors assigned as to other items of the account not included in the appeal could not be considered on that appeal. Decisions in this State were cited in which this rule had been applied in cases of appeal from part only of the items of an executor’s or administrator’s account. Millard v. Harris, 119 Ill. 185, was one of the cases cited. The language of the opinion in that case, contained on pages 191 and 192 is especially applicable here. In addition to the cases there cited, w¡e find that the same rule has been recognized and applied generally to appeals from part only of a chancery decree, where the decree is severable. (Walker v. Montgomery, 236 Ill. 244, 248; Johnson Mfg. Co. v. Alfred Johnson Skate Co., 313 Ill. 106, 125; Hoier v. Kaplan, 313 Ill. 448; Glos v. Woodard, 202 Ill. 480.)

It is true that the final order in No. 29360, after specifying the items of the decree that are reversed, says that “in all other respects” the decree of the circuit court is affirmed. But that language must be read in the light of the fact that the only matters before the court on that appeal, as we held, were the items of the account mentioned in the appeUant’s assignment of errors. Not all the items so mentioned were reversed, and the words quoted mean that the decree was affirmed as to all items included in the appeal that were not specifically reversed.

After our opinion in No. 29360 was filed, counsel for plaintiffs in error applied for a rehearing or a modification of the opinion so as to require the same amounts to be charged to Mrs. Herbert’s share as we held should be charged to the share of the Kellner estate. The application was denied for the reason that the matter of the amount due to Mrs. Herbert was not and could not be determined in that appeal.

The pleas of estoppel are based upon the theory that throughout the entire proceeding in No. 29360, plaintiffs in error took the position with reference to Mrs. Herbert’s share of the estate that was adopted by the circuit court and therefore cannot complain of its. action. The replications to these pleas deny that such was the fact, and one of them alleges, in substance, that Mrs. Herbert was represented by her own counsel and that the part of the decree fixing the amount to be paid to her was entered on the motion of her own solicitors. We find from an examination of the records and files that this allegation is true, and we think it is a sufficient reply to the alleged estoppel. We may add that nothing alleged in the pleas of estoppel purports to show that the position of the surviving executor of the will of Kaspar Gf. Schmidt was altered to his prejudice in any way by .anything said or done by plaintiffs in error with reference to the claim of Mrs. Herbert.

For the reasons stated, the pleas filed by defendants in error are overruled. Under the authority of Great Northern Refining Co. v. D. K. Jeffris Lumber Co., 308 Ill. 342, the filing of the pleas of former adjudication in this case was in effect a confession of error, and, therefore, the decree must be reversed and the cause remanded as to the items of the executor’s account specified in the assignment of errors.

Pleas overruled and decree reversed and remanded.

Uridley, P. J., and Barnes, J., concur.


author: Mr. Presiding Justice Barnes

text:
    First District.
    Ethel M. Cann and William A. Cann, appellee, v. City of Chicago et al., appellants.
    Gen. No. 30,316.
    Bill for injunction. Temporary injunction granted. See 241 Ill. App. 21. Interlocutory appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.
    Eeversed.
    Opinion filed May 25, 1926.
    Francis X. Busch, Corporation Counsel, for appellants; Albert H. Veeder and Barnet Hodes, Assistant Corporation Counsel, of counsel.
    Edwin D. Lawlor, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Margaret P. McLaughlin, appellee, v. Kate Hahn et al., appellants.
    Gen. No. 30,429.
    Partition. Decree finding and taxing costs for complainant. Appeal from the Circuit Court of Cook county; the Hon. Hugo M. Friend, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed May 25, 1926.
    David Ryan Twomey and Reeve & Heywood, for appellants; Harold L. Reeve, of counsel.
    Dawson & Dawson, for appellee; George E. Dawson, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Frank Montalbano, appellee, v. Pere Marquette Railroad Company, appellant.
    Gen. No. 30,483.
    Action for personal injuries under Federal Employers’ Liability Act. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed and remanded.
    Opinion filed May 5, 1926.
    Glennon, Cary, Walker & Murray, for appellant; Sidney O'. Murray and Marvin A. Jersild, of counsel.
    Lynn & Korn, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Barney J. Roggenbuck, appellee, v. A. Julius Breuhaus, appellant.
    Gen. No. 30,502.
    Bill to rescind contract. Decree for complainant. Appeal from the Municipal Court of Chicago; the Hon. Theodore F. Ehler, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed May 25, 1926.
    George W. Thoma and E. Marshall Amberg, for appellant.
    D. W. Parker, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Norris-Ward Coal Company, appellant, v. S. A. Bernbach, trading as S. A. Bernbach, & Company, appellee.
    Gen. No. 30,514.
    Action for goods sold and delivered. Judgment for defendant. Appeal from the Municipal Court of Chicago; the Hon. Robert E. Gentzel, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed with findings of fact and judgment here for $357.34.
    Opinion filed May 25, 1926.
    Cochrane So George, for appellant.
    No appearance for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Stanley Stylinski, appellee, v. Alexander Towy et al., on appeal of Alexander Towy, appellant.
    Gen. No. 30,539.
    Action for personal injuries. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. John J. Sullivan, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed May 25, 1926.
    Henry Knaus, for appellant; Anderson So Roaehe and John H. Lyk, of counsel.
    Frank Greskowialc and Ewart Harris, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    William F. Kelley, appellant, v. Beaver Electric Construction Company, appellee.
    Gen. No. 30,547.
    Action for wrongful death. Judgment for defendant. Appeal from the Superior Court of Cook county; the Hon. Harry B. Miller, .Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed May 25, 1926.
    Alfred Roy Hulbert, for appellant.
    C'assels, Potter & Bentley, for appellee; Ralph F. Potter and Kenneth B. Hawldns, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Palionija Mitchell, appellee, v. Charles Mitchell and Stanley Mitchell, appellants.
    Gen. No. 30,558.
    Bill for divorce. Order committing defendant for contempt on failure to pay complainant’s solicitor’s, fees. See 241 Ill. App. 7. Appeal from the Superior Court of Cook county; the Hon. Worth E. Caylor, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed.
    Opinion filed May 25, 1926.
    Harold O. Mulks, for appellants.
    William S. McNamara, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    W. C. Handley, appellant, v. Herman C. Peters and Anna E. Peters, appellees.
    Gen. No. 30,573.
    Action upon promissory note. Judgment for defendants. Appeal from the Municipal Court of Chicago; the Hon. John F. Haas, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed with findings of fact and judgment here.
    Opinion filed May 25, 1926.
    Huttall & Chism, for appellant.
    Helmer, Moulton, Whitman & Holton, for appellees; Arthur E. Boroughf, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Fisk Tire Company, Inc., appellee, v. James S. McClure et al., on appeal of James S. McClure, appellant.
    Gen. No. 30,582.
    Action for goods sold and delivered. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. William E. Viner, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed with findings of fact and judgment here.
    Opinion filed May 25, 1926.
    Harry A. Fleck, for appellant.
    Harmon, George & Gilbert, for appellee; Roy M. Harmon, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Louis Mitchell, appellee, v. Continental Casualty Company, appellant.
    Gen. No. 30,591.
    Action upon accident insurance policy. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Matthew D. Hartigan, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed May 25, 1927.
    Rehearing denied and additional opinion filed on rehearing June 8, 1926.
    Abraham Lepine, for appellant; George C. Bliss, of counsel.
    Ruben-stein & Rubenstein, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Julian Wieclaw, appellant, v. Bronislawa Wieclaw, appellee.
    Gen. No. 30,603.
    Bill for divorce. Order holding complainant in contempt for failure to make payment for support of child. Appeal from the Circuit Court of .Cook county; the Hon. Thomas J. Lynch, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed.
    Opinion filed May 25, 1926.
    Charles H. Mitchell, for appellant.
    Anderson & Roche and John H. Lyk, for appellee; John H. Lyk, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Inez Carlson, appellee, v. Peoples Gas Light & Coke Company, appellant, impleaded with Harold Cusack.
    Gen. No. 30,619.
    Action for personal injuries. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. W. P. Steffen, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed and remanded.
    Opinion filed May 25, 1926.
    Cooke, Sullivan & Ricks, for appellant; Oliver R. Barrett, of counsel.
    C. Helmer Johnson, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Stanley Peredna, appellee, v. City of Chicago et al., appellants.
    Gen. No. 30,628.
    Mandamus to compel issuance of retail beverage license. Judgment for petitioner. Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed.
    Opinion filed May 25, 1926.
    Francis X. Busch, Corporation Counsel, for appellants; Roy S. Gaskill, W. Arnold Amberg and Bernard A. Conlon, Assistant Corporation Counsel, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Herman Feigenheimer, appellee, v. Herman Huening, appellant.
    Gen. No. 30,650.
    Action for money had and received. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Albert B. George, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed May 25, 1926.
    William J. King, for appellant.
    Thomas J. Mullen, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    H. J. O’Shea, trading as O’Shea Employment System, appellee, v. Innis L. Robottom, defendant, and Woodward & Cochey Manufacturing Company, garnishee, appellant.
    Gen. No. 30,684.
    Garnishment proceedings. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Asa G. Adams, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed.
    Opinion filed May 25, 1926.
    Charles Center Case, for appellant.
    No appearance for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    W. F. Eteridge, appellee, v. Mr. and Mrs. Robert R. Hiller, trading as Sheridan Castle Apartments, appellants.
    Gen. No. 30,698.
    Order refusing to vacate judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. John J. Dupe, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed May 25, 1926.
    Deslie H. Whipp, for appellants.
    A. U. Forman, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


author: Mr, Presiding Justice Barnes

text:
    Atlas Upholstering Company, appellee, v. Morris Forman, trading as Forman’s Furniture Store, appellant.
    Gen. No. 30,708.
    Action for goods sold and delivered. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Albert B. George, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed and remanded.
    Opinion filed May 25, 1926.
    Cline C. Brosius, for appellant.
    Weil, Ward & Adams, for appellee; Leo L. Weil, of counsel.
   Mr, Presiding Justice Barnes

delivered the opinion of the court.


text:
    Edward P. Bunck, appellant, v. Frank B. Downing, appellee.
    Gen. No. 30,717.
    Action upon promissory note. Judgment against plaintiff for costs. Appeal from the Municipal Court of Chicago; the Hon. Theodore F. Ehler, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed with findings of fact and judgment here.
    Opinion filed May 25, 1926.
    Edward L. England, for appellant;
    Homer A. Dodge, of counsel. Robert F. Munsell, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of ihq court.


text:
    C. J. Gronkowski, appellant, v. Library Bureau, appellee.
    Gen. No. 30,728.
    Action for damage to automobile in collision. Judgment for defendant. Appeal from the Municipal Court of Chicago; the Hon. R. C. Freeman, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed and remanded.
    Opinion filed May 25, 1926.
    William L. Hart, for appellant; William L. Hart and Joseph P. Brodie, of counsel.
    Loucks, Eckert & Peterson, for appellee;
    Tom Leeming and John J. Morris, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


author: Mr, Justice Fitch

text:
    Jay H. Emerson, appellee, v. Jerome Trading Company et al., appellants.
    Gen. No. 30,444.
    Action upon promissory note. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. George A. Curran, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed and remanded.
    Opinion filed May 25, 1926.
    George B. Cohen and Abraham H. Cohen, for appellants.
    Gurdon Williams, for appellee.
   Mr, Justice Fitch

delivered the opinion of the court.


text:
    Abraham Solomon, appellant, v. Kearney Dailey Glass Company, Inc., appellee.
    Gen. No. 30,453.
    Action for breach of contract of purchase and sale. Judgment for defendant. Appeal from the Municipal Court of Chicago; the Hon. John F. Haas, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed May 25, 1926.
    Dulsky, Friedman & Schimberg, for appellant.
    Keely & Murphy, for appellee; John F. Bolton, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.


text:
    Simon Ellguth, appellee, v. John Osinski and Franciszka Osinski, appellants.
    Gen. No. 30,468.
    Action for rent. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. George A. Curran, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed May 25, 1926.
    Harry C. Leemon, for appellants.
    William T. Dickerman, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.


text:
    In re estate of Henrietta F. Wurts, deceased. Consolidated Portrait & Frame Company, claimant, appellant, v. Charles P. Wurts, executor, appellee.
    Gen. No. 30,477.
    Action upon claim against estate of decedent. Claim dismissed. Appeal from the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed May 25, 1926.
    Frederic L. Goff, for appellant.
    Litsinger, Healy & Beid, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.


text:
    Mae G. Wilford, appellee, v. Fred Becklenberg, appellant.
    Gen. No. 30,486.
    Action for money had and received. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Samuel H. Trude, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Beversed with a finding of facts.
    Opinion filed May 25, 1926.
    William G. Wise, for appellant.
    No appearance for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.


text:
    Max Goldberg and Abraham Cohen, appellants, v. Hershel California Fruit Products Company, appellee.
    Gen. No. 30,505.
    Action for money had and received. Judgment for defendant. Appeal from the Superior Court of Cook county; the Hon. Walter P. Steffen, Judge, presiding. Heard in the second division of this court for the first district at the. October term, 1925.
    Affirmed.
    Opinion filed May 25, 1926.
    Philip A. Weinstein, for appellants.
    Edwin J. Raber and Lester Bauer, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.


text:
    Joseph Silver, appellee, v. Ethel F. Lipsey et al., appellants.
    Gen. No. 30,526.
    Bill to establish mechanic’s lien. Decree for complainant. Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed May 25, 1926.
    Geo. F. Ort, for appellants.
    A. S. & E. W. Froehlich, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.


text:
    E. N. Hansen and J. N. Hansen, trading as E. N. Hansen & Company, appellees, v. Morris Silbert, appellant.
    Gen. No. 30,542.
    Action for work and labor. Judgment for plaintiffs. Appeal from the Municipal Court of Chicago; the Hon. Matthew D. Hartigan, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed.
    Opinion filed May 25, 1926.
    Gallagher, Shulman, Abrams & Henry, for appellant.
    Harris, Reinhardt & Russell, for appellees.
   Mr. Justice Fitch

delivered the opinion of the court.