text:
    The People of the State of Illinois v. Kaspar-American State Bank, appellee, on appeal of Harry Kanta et al., appellants.
    Gen. No. 37,955.
    Opinion filed November 20, 1935.
    Charles J. Michal, for appellants; Clyde C. Fisher, of counsel. Ring, Uhlir & Cuehna, for appellee; Sabath, Perlman, Goodman & Rein, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice Hall

license: Public Domain

text:
    Margaret E. Beatty, appellee, v. City of Chicago, appellant.
    Gen. No. 37,995.
    Opinion filed November 20, 1935.
    Rehearing denied December 4, 1935.

      William. H. Sexton, Corporation Counsel, and Alexander M. Smietanka, City Attorney, for appellant; Robert E. Dowling, Jr., Assistant City Attorney, of counsel. Royal W. Irwin, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Christina Kunzet, administratrix, and Peter Kunze, co-administrator of the estate of Peter Kunzet, deceased, appellees, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 38,183.
    Opinion filed November 20, 1935.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and William S. Allen, of counsel. Edward L. S. Arkema, for appellees.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


author: Mr. Justice Hebei

text:
    The People of the State of Illinois ex rel. John S. Rusch, defendant in error, v. Betty Fabish et al., plaintiffs in error.
    Gen. No. 37,505.
    Opinion filed November 20, 1935.
    Stephen A. Malato, for plaintiffs in error. Thomas J. Courtney, State’s Attorney, for defendant in error; John F. Cashen, Jr., of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Byrne Brothers Construction Company, Inc., appellee, v. The Sanitary District of Chicago, appellant.
    Gen. No. 37,612.
    Opinion filed November 20, 1935.
    William Rothmann, Elmer J. Whitty, Lawrence J. Fenlon, Thomas F. Donovan and William 0. Oehlsen, for appellant. John L. Mc-Inerney, for appellee; Edward H. Murnane, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Peter L. Evans et al., appellants, v. Tony Mattio et al., appellees. Sam Sier, appellee, v. Tony Mattio et al., appellees.
    Gen. No. 37,634.
    Opinion filed November 12, 1935.
    Harry A. Carlson, for appellants. William Sproger, for appellee Sam Sier.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Garfield William Andrews, plaintiff in error, v. The Sanitary District of Chicago and T. J. Forschner Contracting Company, defendants in error.
    Gen. No. 37,835.
    Opinion filed November 20, 1935.
    Rehearing denied December 4, 1935.
    McKenna, Harris & Schneider, for plaintiff in error; Abraham W. Brusseff, of counsel. Elmer J. Whitty, Edward A. McCarthy" and Thomas F. Donovan, for defendant in error Sanitary Dist. of Chicago. Burke, Jackson & Burke and Pomeroy & Martin, for defendant in error T. J. Forschner Contracting Co.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    John J. Ward, appellee, v. Bunker Hill Country Club, appellant.
    Gen. No. 37,961.
    Opinion filed November 20, 1935.
    John 0. Wagner, for appellant. Ward, Rabold & Mabroy, for appellee; Edward MeTiernan, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    James Tozzi, trading as James Tozzi and Company, appellant, v. August Stoerk, Inc., appellee.
    Gen. No. 38,012.
    Opinion filed November 20, 1935.
    Ela, Grover & March, for appellant; Lyle H. Rossiter, of counsel. No appearance for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


author: Mr, Justice Hebei

text:
    Albert Kagan, appellee, v. London Guarantee and Accident Company, Ltd., appellant.
    Gen. No. 38,086.
    Opinion filed November 20, 1935.
    John E. Wilson, for appellant. Cohen & Berke, for appellee; Mayer Goldberg and Harold R. Gordon, of counsel.
   Mr, Justice Hebei

delivered the opinion of the court,


text:
    Laura C. Rucker, appellee, v. City of Chicago, appellant.
    Gen. No. 38,103.
    Opinion filed November 20, 1935.
    William H. Sexton, Corporation Counsel, and A. M. Smietanka, City Attorney, for appellant; Quin O’Brien, Adam E. Patterson, and Michael W. Eaveney, Assistant Corporation Counsel, of counsel. Raymond C. Sehnell, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Barbara Patchen, appellant, v. Gordon F. Patchen, appellee.
    Gen. No. 38,126.
    Opinion filed November 20, 1935.
    Frank T. Sharp, for appellant. Lloyd A. Faxon, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Harold A. Freevol and Sam Smedberg, trading as Freevol and Smedberg, defendants in error, v. Minnie R. Garner, plaintiff in error.
    Gen. No. 38,137.
    Opinion filed November 20, 1935.
    Rehearing denied December 4, 1935.
    Otto G. Ryden, for plaintiff in error. Harry A. Biossat, for defendants in error.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Le Roy Lewis, appellee, v. Lieberson Novelty Company, appellant.
    Gen. No. 38,173.
    Opinion filed November 20, 1935.
    Turner & Turner, for appellant. John B. Fruehtl, for appellee.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    Felix De La Rosa, appellant, v. Swift and Company Employes’ Benefit Association, Jesus De La Rosa, appellees.
    Gen. No. 38,270.

      Opinion filed November 20, 1935.
    Hubbard, Baker & Rice, for appellant. Jackson & Spencer, for certain appellee; Stephen G. Proksa, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


text:
    William Eberling and Edmund A. Eberling, appellants, v. Anton Knittelfelder, appellee.
    Gen. No. 38,371.
    Opinion filed November 20, 1935.
    Rehearing denied December 4, 1935.
    Kenneth F. Simpson, for appellants. Francis W. Marshall, for appellee; Mathias F. Perz, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


author: Mr. Justice Denis E. Sullivan

text:
    Sinclair Refining Company, defendant in error, v. G. Grieco, sometimes known as Joseph Grieco, plaintiff in error.
    Gen. No. 37,885.
    Opinion filed November 20, 1935.
    William C. Smith, for plaintiff in error. No appearance for defendant in error.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Daniel L. Litewski, appellee, v. G. Becker Company Roofers, appellant.
    Gen. No. 38,009.
    Opinion filed November 20, 1935.
    Rehearing denied December 4, 1935.
    Albert A. Gomberg, for appellant. Henry N. Miller, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


author: Mr. Justice John J. Sullivan

text:
    Eli I. Kleinman and Samuel H. Kleinman, complainants, v. Metropolitan Credit and Discount Corporation et al., defendants. Magdalena Amborn et al., appellees, v. Metropolitan Credit and Discount Corporation, appellant.
    Gen. No. 38,161.
    Opinion filed December 11, 1935.
    Myer H. Gladstone, Cohen & Berke and Luster & Luster, for appellant; Myer H. Gladstone, of counsel. Welch & Hoffman, for appellees.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


author: Mr. Presiding Justice McSurely

text:
    George H. Bogner, appellant, v. New Amsterdam Casualty Company, appellee.
    Gen. No. 38,320.
    Opinion filed December 16, 1935.
    Rehearing denied December 30, 1935.
    Stearns & Jones and Lloyd M. McBride, for appellant. Robertson, Crowe & Spence, for appellee; Burt A. Crowe, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Paul L. Rittenhouse, appellee, v. Herbert L. Dillon et al., trading as Eastman, Dillon and Company, appellants.
    Gen. No. 38,334.
    Opinion filed December 16, 1935.
    Winston, Strawn & Shaw, for appellants; Thomas I. Hnderwood and Frank B. Gilmer, of counsel. Jaffe & Green, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Chicago Title and Trust Company, appellee, v. Louis Shapiro, appellant.
    Gen. No. 38,343.
    Opinion filed December 16, 1935.
    William Feldman and I. K. Goodman, for appellant. Benjamin S. Adamowski, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Maurice A. Spalding, appellant, v. Dora Spalding, appellee.
    Gen. No. 38,352.
    Opinion filed December 16, 1935.
    Robert E. Cantwell, Jr., for appellant; Martin W. Grosse, of counsel. Oscar S. Seaver and Henry F. Antes, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois for the use of Dora Epstein, appellant, v. Albert J. Horan and Fidelity and Casualty Company of New York, appellees.
    Gen. No. 38,362.

      Opinion filed December 16, 1935.
    Krohn & MacDonald, for appellant; Stuart B. Krohn,- of counsel. Mayer Goldberg, for appellees; Leonard L. Levin, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Esther Jamison, administratrix of the estate of James Watson, deceased, appellee, v. United Dairy Company, appellant.
    Gen. No. 38,385.
    Opinion filed December 16, 1935.
    Robertson, Crowe & Spence; for appellant; Burt A. Crowe, of counsel. Thomas M. Morris, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Annie Hughes, appellee, v. Howard J. Ziegler, appellant.
    Gen. No. 38,414.
    Opinion filed December 16, 1935.
    Robertson, Crowe & Spence; for appellant; Burt A. Crowe, of counsel. Black & Beermann, for appellee; Benjamin H. Black, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion pf the court.


text:
    The People of the State of Illinois, defendant in error, v. Sidney Lewis, plaintiff in error.
    Gen. No. 38,465.
    Opinion filed December 16, 1935.
    Martin O. Weisbrod and Harry J. Busch, for plaintiff in error. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Richard H. Devine and John T. Gallagher, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Presiding Justice MeSurely

text:
    City of Chicago, appellee, v. Material Service Corporation, appellant.
    Gen. No. 38,502.
    Opinion filed December 16, 1935.

      Edwin A. Halligan and Joseph Chavkin, for appellant; Samuel M. Lanoff, of counsel. Barnet Hodes, Corporation Counsel, for appellee; David Lefkovitz and Mark J. McNamara, Assistant Corporation Counsel, of counsel.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


author: Mr. Justice Matehett

text:
    Pauline De Waal Orsi, plaintiff in error, v. Victor Orsi, defendant in error.
    Gen. No. 38,297.
    Opinion filed December 16, 1935.
    William R. Peacock, for plaintiff in error. No appearance for defendant in error.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Chicago Title and Trust Company, appellee, v. Dave Feigenberg et al., defendants, on appeal of Bernard Rodin and Rose Rodin, appellants.
    Gen. No. 38,307.
    Opinion filed December 16, 1935.
    .Kessler, Tobin & Miller, for appellants; Harry Tobin, of counsel. Winston, Strawn & Shaw and A. Edmund Peterson, for appellee; Richard H. Hollen, Anthony L. Michel and George W. Ott, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Roy E. Bishop and Frances Bishop, appellees, v. Arthur T. McIntosh, appellant.
    Gen. No. 38,389.
    Opinion filed December 16, 1935.
    Rehearing denied December 30, 1935.
    Case, Elsdon, Shults & Lundeberg, for appellant; Charles Center Case, of counsel. Either & Either, for appellees.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Oscar Nelson v. Kimbell Trust and Savings Bank. Guardian Life Insurance Company of America, appellee, v. William L. O’Connell, appellant.
    Gen. No. 38,447.

      Opinion filed December 16, 1935.
    Melnerney, Epstein & Arvey, for appellant; George L. Siegel, of counsel. Vernon R. Loueks and A. J. Hennings, for appellee.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    T. C. Fredrich, appellant, v. Board of Education of the City of Chicago, appellee.
    Gen. No. 38,468.
    Opinion filed December 16, 1935.
    Rehearing denied December 30,1935.
    Neis H. Olson and Harry A. Biossat, for appellant. Richard S. Folsom, for appellee; Frank S. Riglieimer, Ralph W. Condee and Frank R. Schneberger, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Nick Basuris, plaintiff in error.
    Gen. No. 38,565.
    Opinion filed December 16, 1935.
    Rehearing denied December 30, 1935.
    W. G. Anderson, for plaintiff in error. Otto Kerner, Attorney General, for defendant in error; J. J. Neiger, Assistant Attorney General, Thomas J. Courtney, State’s Attorney, Edward E. Wilson, Henry E. Seyfarth and John T. Gallagher, Assistant State’s Attorneys, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    M. Finkelstein, appellee, v. The Lawrence Avenue National Bank of Chicago and Frank J. Cimral, appellants.
    Gen. No. 38,160.
    Opinion filed December 16, 1935.
    Thomas E. Keane and Lowenhaupt & Wolff, for appellants; Thomas E. Keane, James R. O’Leary and Oscar M. Wolff, of counsel. Joseph D. Bryan, for appellee; Joseph D. Bryan and James J. Cusack, Jr., of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Samuel Rothblum, appellant, v. Arthur Alvin Gelatt and Mrs. Arthur Alvin Gelatt, appellees.
    Gen. No. 38,290.

      Opinion filed December 16, 1935.
    R. E. Rothblum, for appellant. Ross, Berehem- & Hanson, for appellees; Donald N. Berehem, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Alvina Kietzmann, administratrix of the estate of Louis R. Totz, deceased, complainant, v. Edythe Schmidt et al., appellees, on appeal of Victor Burgess, administrator of the estate of Bertha O. Totz, deceased, appellant.
    Gen. No. 38,300.
    Opinion filed December 16, 1935.
    Fred Rohde, for appellant; Abraham Miller, of counsel. Henry Pollenz, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    H. Fanelli, appellee, v. William Burke Harmon et al., appellants.
    Gen. No. 38,331.
    Opinion filed December 16, 1935.
    Barre Blumenthal, for appellants; Max A. Kopstein, of counsel. Charles T. Kramer, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Mary A. Russell, appellee, v. Globe Mutual Life Insurance Association of Chicago, now known as Globe Life Insurance Company, appellant.
    Gen. No. 38,340.
    Opinion filed December 16, 1935.
    Rehearing denied December 30, 1935.
    Pulton, Pulton & Sheen, for appellant. Frederick H. Chetlain and Philip W. Yager, for appellee-.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Margaret Browne, appellee, v. William Rodgers, administrator of the estate of Bernice Rodgers, deceased, appellant.
    Gen. No. 38,378.
    Opinion filed December 16, 1935.
    W. A. Leopold, for appellant. Fred Rohde, for appellee; Abraham Miller, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Joseph Moody, appellee, v. La Mantia Bros. Arrigo Company and Joseph Pagliugli, appellants.
    Gen. No. 38,394.
    Opinion filed December 16, 1935.
    Rehearing denied December 30, 1935.
    Cassels, Potter & Bentley, for appellants; Ralph F. Potter, Leslie H. Vogel and B. Douglas Schwantes, of counsel. Thomas B. Kluezynski, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Jesse A. Rothschild et al., appellants, v. Albert Sabath, appellee.
    Gen. No. 38,406.
    Opinion filed December 16, 1935.
    Edgar J. Selioen and Aaron Taymor, for appellants. Charles Hudson and Emanuel Goldstrieh, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice Huffman

text:
    Second District.
    Mary McKeown, appellee, v. James D. Castelli, appellant.
    Gen. No. 8,912.
    Opinion filed December 5, 1935.
    Ray F. Faulkner, for appellant. Charles J. McKeown and Elmer H. Bielfeldt, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


text:
    Catherine S. Morningstar, appellee, v. Everett C. Hardin et al., appellants.
    Gen. No. 8,991.
    Opinion filed December 5, 1935.
    John J. Ryan and Scofield & Bell, for appellants. Roswell B. O’Hara, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion’ of the court.


text:
    Edna Nordman, administratrix of the estate of Oscar Thoren, deceased, appellant, v. Walter A. Carlson, appellee.
    Gen. No. 9,002.

      Opinion filed December 5, 1935.
    Rehearing denied January 9, 1936.
    Frank E. Maynard, for appellant. North, Gibboney & North, for appellee; Frank P. North, of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


text:
    Sarah Edna Page, appellee, v. Agnes M. Burns and Richard O. Burns, appellants.
    Gen. No. 9,003.
    Opinion filed December 5, 1935.
    Francis A. Harper, for appellants. John K. Newhall and David B. Givler, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


text:
    Robert B. Ayres, administrator of the estate of Frank Ayres, deceased, appellee, v. Village of Hinsdale, appellant.
    Gen. No. 9,014.
    Opinion filed December 5, 1935.
    Malcolm McCartney, for appellant. Beach, Fathehild & Scofield, for appellee; C. J. Scofield and L. A. Smoler, of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.


author: Mr. Presiding Justice Davis

text:
    Third District.
    George Carrico Drake, appellee, v. The Bankers Reserve Life Company and The Ohio National Life Insurance Company, appellants.
    Gen. No. 8,910.
    Opinion filed October 10, 1935.
    Hill & Buffington, for appellants; Bettinger, Schmitt & Kreis, of counsel. Lester K. Vandever and Dryer & Brown, for appellee.
   Mr. Presiding Justice Davis

delivered the opinion of the court.


text:
    In re Estate of Orville J. Penwell, deceased. Warren Penwell et al., appellants, v. The First National Bank of Danville, appellee.
    Gen. No. 8,913.
    Opinion filed October 10, 1935.
    W. H. Craig, J. J. Baker and Geo. B. Rhoads, for appellants. Lew-man & Carter, for appellee.
   Mr. Presiding Justice Davis

delivered the opinion of the court.


author: Mr. Justice Allaben

text:
    S. B. Hofsas, appellee, v. Ira Monroe, appellant.
    Gen. No. 8,894.
    Opinion filed October 10, 1935.
    Doss, Glasgow & Morgan, for appellant. N. E. Hutson, for appellee.
   Mr. Justice Allaben

delivered the opinion of the court.


text:
    Barton County Rock Asphalt Company, appellee, v. City of Jacksonville, appellant.
    Gen. No. 8,896.
    Opinion filed October 10, 1935.
    Orville N. Foreman and Edward W. Oleary, for appellant. William N. Hairgrove, for appellee.
   Mr. Justice Allaben

delivered the opinion of the court.


author: Mr. Justice Fulton

text:
    Mary H. Scott, administratrix of the estate of S. Walter Scott, deceased, appellee, v. Janet Tick, appellant.
    Gen. No. 8,897.
    Opinion filed October 10, 1935.
    Leonard W. Ingham, Lawrence C. Wheat and Frank K. Lemon, for appellant. Wirt Herrick and Monroe & Allen, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    In re Estate of William H. Goodwin, a minor. In re Petition of S. E. Brittingham, appellee, v. Vermilion County Building Association et al., appellants.
    Gen. No. 8,898.
    Opinion filed October 10, 1935.
    Charles Troup, for appellants. Gunn, Penwell & Lindley, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    The Vermilion County Building Association, appellant, v. Fred W. Coffing and Jane R. Coffing, appellees.
    Gen. No. 8,904.
    Opinion filed October 10, 1935.
    Charles Troup, for appellant. Gunn, Penwell & Lindley, for appellees.
   Mr. Justice Fulton

delivered the opinion of the court.


author: Mr. Presiding Justice Huffman Mr. Justice Dove

text:
    The People of the State of Illinois ex rel. Oscar Nelson, Auditor of Public Accounts, v. Waukegan State Bank. Intervening Petition of Harry J. McKean, Alias H. J. McKean, Appellee, v. William L. O’Connell, Appellant.
    Gen. No. 8,973.

      Dove, J., dissenting.
    Opinion filed December 5, 1935.
    Rehearing denied January 9, 1936.
    William C. Connor, of Chicago, for appellant.
    Herman C. Litchfield, of Waukegan, for appellee ; Hartley E. LaChapblle, of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

Appellee McKean was indebted to the Waukegan State Bank in the sum of $8,000, the bank holding his note for this amount. On June 17,1931, appellee went to the bank for the purpose of paying his note. There he talked with various officers and employees of the bank including the president and cashier. He was advised by such persons that the bank was not at that time in possession of his note and could not make delivery of the same to him upon payment, whereupon appellee declined to pay same. He then undertook to withdraw his entire deposit from the bank. The bank officer refused to give him the money. He then had a conversation with the president of the bank in which he advised the president that he proposed procuring an assignment of the deposit of the Security Industrial Finance Company’s account in said bank. Appellee was president of said finance company. Following the above conversation, appellee did procure an assignment of said finance company’s deposit. He later returned to the bank with this assignment and presented the same to the president, who stated that it would be all right for him to keep it. The bank continued its regular banking business, accepting such deposits as its customers made, until the usual closing hour of that day. It never thereafter reopened for business, and subsequently was placed in receivership by the auditor of public accounts. Appellee claimed the right of set-off against his indebtedness to the bank, of his deposit and of the deposit of the Security Industrial Finance Company, for which he held the assignment. Appellant contested the right of appellee to set-off, with respect to the deposit of the Security Finance Company, claiming fraud and bad faith on the part of appellee, in that he knew the bank was insolvent and was going to close. The trial court granted to appellee the right of set-off upon said deposit.

Appellant prosecutes this appeal from the decree of the court in that respect.

It has been definitely settled that a receiver of a bank takes the assets subject to all valid rights, liens and equities subsisting between the bank and its creditors. The relationship between a bank and a depositor being that of debtor and creditor, the bank may make payment out of the depositor’s account upon his direction, which may be oral as well as written. Michie, Banks and Banking, Yol. 5, pp. 93,180. It has further been recognized that a bank receiver must set off the maker’s deposit against his debt without any express agreement, and the deposit of another, upon express agreement. Michie, Banks and Banking, Yol. 5, pp. 225, 226. The rule that the right to set-off against an insolvent bank is to be governed by the state of facts existing at the time of insolvency should be given a reasonable interpretation and construction. The facts in this case show that the bank in question continued in the usual course of business until the regular closing hour on June 17,1931. It did not thereafter reopen for business. A receiver was later appointed for said bank. The bill by which the assets of the bank were impounded for the benefit of creditors was filed by the auditor of public accounts on August 15, 1931.

Those who are charged with the management and operation of a bank should have knowledge of its financial condition, but its customers who deposit their money therein are not chargeable with such knowledge except upon clear and convincing proof. It may be stated as a general proposition that the suspension of business on the part of a bank constitutes the first positive knowledge and information of its insolvency, so far as the general public doing business with such bank is concerned. It is not to be presumed that those in charge of a bank’s affairs advise people who come to the bank to transact their business, that the institution is insolvent and about to close. The acts of its customers in transacting such business, and making deposits, refute any presumption of knowledge of insolvency upon their part. Nor is there anything irregular in the fact that a customer of a bank attempts to pay his note, or attempts to withdraw money on deposit. The relation of debtor and creditor exists with respect to such deposits.

The court found by its decree that appellee was indebted to the bank in the sum of $8,000, together with the accumulated interest thereon; that at the time of the suspension of business by said bank, appellee had on deposit therein the total sum of $6,315.37, represented by bis individual account and by the deposit of the Security Industrial Finance Company. We know of no rule of law to prevent an assignment by a depositor of his deposit in a bank. In the absence of independent knowledge of insolvency on the part of an assignee of such depositor, the subsequent suspension of business by the bank in no wise affects such assignee’s rights as the owner of such deposit, either in a claim thereon or in the right of set-off. An assignee of a depositor who takes a bona fide assignment of such deposit for value, before suspension of business by the bank, and without knowledge of insolvency, should be protected in his rights; and, in case of subsequent suspension by the bank, is entitled to prosecute his claim upon such deposit, or to set off the same against his indebtedness to such bank.

The bank was open in the usual and customary manner at the time appellee presented his assignment of this deposit to the president. There is no proof that he was advised by any of the officers in charge of the bank that it was insolvent and was going to suspend ' business. It is not probable that the condition of insolvency arose upon that particular day, or upon any other particular day, as such conditions necessarily develop over a period of time. Financial impairment of a bank’s assets, even though extreme, does not always result in the suspension of business.

We find nothing in this record to establish fraud upon the part of appellee as claimed by appellant. The decree of the trial court is therefore affirmed.

Decree affirmed.

Mr. Justice Dove

dissenting: The evidence in this record convinces me that appellee knew on June 17, 1931, that the- Waukegan State Bank was insolvent. His note was not due and he had no valid assignment of the deposit of the Security Finance Company.


text:
    The People of the State of Illinois ex rel. Alfred G. Tolley, Appellee, v. Illinois Bankers Life Assurance Company of Monmouth, Appellant.
    Gen. No. 8,986.
    Opinion filed December 5, 1935.
    Rehearing denied January 9, 1936.
    H. T. Martin and Bardens & Melburg, of Monmouth, and Hardy, Hardy, Hardy & Witherell, of Galesburg, for appellant.

      Hal M. Stone and Branson Wright, both of Bloomington, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

This was an action in mandamus brought by appellee against appellant to compel his reinstatement as a member of appellant assurance company, together with a reinstatement of the insurance contract between them. Appellant filed a general demurrer to the petition, which was overruled. Appellant elected to stand by its demurrer, whereupon judgment was rendered against it pursuant to the petition.

On July 27, 1908, appellee filed his application for a certificate of.membership in the Illinois Banker’s Life Association of Monmouth, Illinois. Pursuant to such application, certificate of membership was issued to appellant in the sum of $2,000. The contract provided that the member should pay all premiums levied thereunder and that in default of such payment, his rights should cease upon expiration of the time fixed for such payment. On November 19, 1929, the above association entered into a reinsurance contract with the Illinois Banker’s Life Assurance Company, which contract was approved by the director of trade and commerce of Illinois, under the above date of November 19, 1929. By this contract appellant agreed to accept the transfer to it and to reinsure all certificates and policies held by members of the association who were in good standing, including members therein whose policies had lapsed but who might be reinstated in accordance with the terms of such certificates or policies.

It appears from the petition of appellee that it had been the established custom and course of dealing between him and the appellant and its predecessor company, for him to mail the premiums assessed upon his policy, from the post office at Rapatee, Illinois, which was his mailing address, to the company at its mailing address in the city of Monmouth, Illinois; that shortly prior to October 1, 1933, he received notice of a premium assessment for the sum of $12.37, which became payable within 30 days from Oct. 1, '1933; that he purchased a money order at the post office in Rapatee, for the payment of said premium, made payable to appellant company, which money order he placed in a sealed envelope addressed to appellant company with postage thereon, in sufficient time to reach the office of appellant at Monmouth, Illinois, prior to the expiration of the due date for such premium; that no subsequent premium became due until in the month of January, 1934; that upon failure to receive notice of this premium assessment, he made inquiry of appellant as to the amount of such assessment, whereupon he was for the first time informed by the company of its failure to receive his premium of October, 1933, and that his policy of insurance and certificate of membership had therefore lapsed. Appellee alleges attempt to pay to appellant the premium assessment which became due, but that appellant refused to accept same; that he does not know the amounts of subsequent assessments levied by appellant upon a membership such as held by him, and that appellant has refused to advise him of such amounts, although he has made repeated demands. The petition prays for writ of mandamus to issue directing appellant to take and receive from petitioner such sum as may be due and that the contract between them be reinstated as it existed October 1, 1933. Appellee also alleged and prayed for $250 as his damages sustained by way of attorney fees, together with costs.

The first and main contention made by appellant in its brief and in the oral argument presented is that mandamus is not the proper remedy and that such action will not lie in a case of this kind. The right of mandamus has long been recognized to compel reinstatement by a member of a benefit society who has been wrongfully expelled. Society for Visitation of the Sick v. Commonwealth, 52 Pa. 125, 91 Am. Dec. 139. If the contract does not make reinstatement optional with the company, a compliance with the conditions imposed by the terms of the contract and of the rules and by-laws of the company gives the insured the absolute right to reinstatement. Bacon, Life and Accident Insurance, 4th ed., Vol. 2, par. 495. The officers of the company are not justified in rejecting an application for reinstatement where the insured has complied with the requirements of his contract. Under such circumstances, it is said that the proper remedy to be pursued by the insured is mandamus, and that such member can properly be restored to membership by such action. Joyce, Law of Insurance, 2nd ed., Vol. 5, p. 5866; 8 Couch on Insurance, p. 6335; People v. Western Life Indemnity Co., 181 Ill. App. 116. It has further been said that unless the contract of insurance restricts or abridges the right of a member to resort to the courts, the mere fact that he has a right of appeal within the order does not prevent a legal action. 8 Couch on Insurance, p. 6571. The above general reference books afford many citations of authorities upon the principles above announced.

Appellant also urges that before mandamus will lie for reinstatement by the member, such member must have exhausted Ms remedies within the association. Mutual benefit societies vary widely in their purposes, organization, and activities. A great variety of such societies have existed from time to time. The diversity of these orders, each being organized for its own special purpose, with rules and by-laws peculiar to its particular designs, makes it almost impossible for the courts to announce any one principle of law that will suffice under all conditions. In many cases it has been said that one seeking restoration to membership must first exhaust his remedies within the order or society before resorting to the courts. But here there is nothing to show that appellee had any remedies with the company other than to pay such premium assessments as might be levied by the appellant company from time to time. The appellee avers that he made all of the payments from 1908 to that of October, 1933; that they were made to the home office of the company by mail; that this had been the established practice and custom of appellee in making payment of assessments to appellant company; that the premium of October, 1933, was mailed to appellant as usual and customary; and that appellee had no notice that appellant claimed it had not received the remittance until he made inquiry as to the amount of the next premium which came due in January, 1934, whereupon he was for the first time notified by appellant of its failure to receive his remittance of October, 1933.

Those cases having to do with the member exhausting his remedies within the society, are quite similar to that of People v. Women’s Catholic Order of Foresters, 162 Ill. 78, where certain disciplinary powers of the society are brought to bear against -a certain member, resulting in his expulsion. However, a member of an insurance organization who has been suspended for nonpayment of dues must bring himself within the provisions of the contract with the company before he is entitled to reinstatement, or establish some waiver thereof.

Appellant objects to the manner employed by appellee in making remittance of the October, 1933, premium, and of the averments with respect thereto. In view of the long established custom and practice by the appellant and appellee with reference to the manner of remitting premiums, we consider the method used sufficient. Protection Life Ins. Co. v. Foote, 79 Ill. 361. And upon general demurrer, we consider the averments relative thereto sufficient.

As the record stands in this case, the petition of appellee must be accepted upon its face, and we are of the opinion that the .same was sufficient as against a general demurrer. The judgment of the trial court is therefore affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Huppman

text:
    Roy E. Parson, Appellee, v. Minnie H. Case and Howard D. Henry, Appellants.
    Gen. No. 8,983.
    Modified opinion filed January 17, 1936.
    Rehearing denied January 17, 1936.
    Walter Hamilton, of Chicago, for appellants.

      March & Eossiter, for appellee; Lyle H. Eossiter, of Chicago, of counsel.
   Mr. Presiding Justice Huppman

delivered the opinion of the court.

On October 3, 1929, Minnie H. Case executed two separate and distinct mortgage loans. One of such loans was for the sum of $1,550, evidenced by her promissory note for that amount, payable at the Glen Ellyn State Bank of Glen Ellyn, Illinois. This note was secured by a trust deed upon a certain vacant lot which she owned in the city of Glen Ellyn and upon which she desired to erect a dwelling. The Chicago Title and Trust Company was named as trustee. On the same day, she executed another mortgage indebtedness in the sum of $9,000, comprised of five promissory notes, all payable at the Glen Ellyn State Bank, and secured by trust deed upon the same lot, and naming the Chicago Title and Trust Company as trustee therein. The trust deeds and notes secured thereby were delivered by the said Minnie H. Case to the Glen Ellyn State Bank. The $9,000 trust deed was recorded prior to the smaller one. The trust deed for the $1,550 loan disclosed that such loan was subject to the $9,000 loan.

Appellee became the owner for value of the $1,550 note, the said mortgagor receiving the proceeds from this note, which she used in payment for the lot. The Glen Ellyn State Bank failed to advance to the mortgagor any money upon the $9,000 loan, and the said Minnie H. Case received nothing on such loan, which went into the construction of the residence or in payment for the'lot. She paid for the house with her own funds. She made demand upon the bank for the return of the notes and trust deed executed with reference to the $9,000 indebtedness. The bank claimed that the same had been lost or misplaced and it was unable to return them to her. Following the bank’s failure to deliver the trust deed and notes for the $9,000 loan to the mortgagor, she did on or about May 15, 1930, execute an assignment to her brother, Howard D. Henry, appellant herein, for such mortgage indebtedness.

In May, 1932, appellee filed his bill to foreclose against the property in question, setting up the facts regarding the failure of appellant Minnie H. Case to receive anything upon the $9,000 mortgage from the Glen Ellyn bank, and further, that if she ever received anything thereon, it was not until May 15, 1930, or soon thereafter, which was long subsequent to the vesting of the legal rights of appellee under his mortgage loan; that the Glen Ellyn State Bank never negotiated the notes comprising the $9,000 loan and never paid any consideration therefor to appellant Case. Appellee set up that his mortgage was therefore a first lien and prayed that the court would so decree. Appellant Henry filed his cross-bill for foreclosure, urging that the $9,000 mortgage indebtedness was prior to that of appellee.

The court decreed the mortgage indebtedness of appellee to be a first lien and prior to that of appellant Henry; that said cross complainant’s mortgage did not secure any indebtedness until May 15, 1930; that prior to such time the trust deed and notes were in the hands of the Glen Ellyn State Bank; that nothing was ever advanced thereon; and that no indebtedness existed thereon until May 15, 1930, when said cross complainant took an assignment from appellant Case for the notes executed on October 3, 1929, and secured by the $9,000 trust deed. The court further found that any consideration paid by Howard D. Henry to Minnie H. Case because of such assignment was not used in the construction of the improvement placed upon the premises described in the trust deed; that the trust deed and notes sought to be foreclosed by said cross complainant were never delivered to him by either appellant Case or the Glen Ellyn State Bank; that no order was ever given by appellant Case to the bank to deliver such notes to the cross complainant; and that the said bank never received any notice and never had any knowledge of the alleged ownership of such notes by the cross complainant or of the sale thereof by Minnie H. Case to him. Minnie H. Case and her brother, the cross complainant, prosecute this appeal from the decree of the court.

While there were minor questions involved in this ease, yet the main question as between the parties was, whose lien should have priority. This was the question before the trial court and the deciding factor in the disposition of this case. It remains the controlling question upon this appeal.

In the case of a note and mortgage or note and trust deed, the note is the principal obligation and the mortgage or trust deed merely an incident thereto. Union Mut. Life Ins. Co. v. White, 106 Ill. 67; Smith v. Niemann, 216 Ill. App. 179. The note is the evidence of the debt. The mortgage is given only as security therefor. It has been said that where no debt exists, there can be no mortgage. Freer v. Lake, 115 Ill. 662; Schaeppi v. Glade, 195 Ill. 62; Freutel v. Schmitz, 299 Ill. 320.

In the case of Schaeppi v. Glade, supra, at page 66 of the opinion, it is stated: “A mortgage without any debt has no effect as a lien, and it can only take effect from the time when some debt or liability secured by it is created. A debt or mortgage obligation is essential to create a lien.” There was no lien created by the $9,000 trust deed in this case until some money was advanced thereon. The bank was unable to make the loan after the notes and trust deed were delivered to it, and suspended business without ever having advanced any money on the transaction, without having ever returned the papers to the maker, and without having negotiated any of the notes. It is stated in Freutel v. Schmitz, supra, at page 323, “A mortgage is security for a debt and without a debt, it has no effect as a lien.” It is further stated at this page, “A mortgage may be taken to secure future advances, but it can only take effect as a lien from the time some debt or liability secured by it is created.” To the same effect are Schultze v. Houfes, 96 Ill. 335; Fischer v. Tuohy, 186 Ill. 143, 148.

It is apparent that at the time appellant Case executed the trust deed and notes for $9,000 and delivered them to the bank, no lien attached to the property in question because of such transaction, for the reason that there was no indebtedness owing the bank to be secured by the trust deed. Furthermore, appellant Henry knew the facts regarding the $9,000 transaction. He was chargeable with knowledge of the recording of appellee’s trust deed, which was nearly a year prior to his taking the assignment from his sister, for the indebtedness represented by the first trust deed of $9,000. This is an added reason why his lien is subject to that of appellee’s. Lanphier v. Desmond, 187 Ill. 370, 380, 381.

As the record stands in this case, we are of the opinion that the question of priority as between the appellee and appellants must be determined by the question of when their respective mortgage indebtedness became a lien. No lien attached to the $9,000 mortgage indebtedness as between the mortgagor, Minnie H. Case, and the Glen Ellyn State Bank. Appellant Henry bought his interest therein directly from the mortgagor. She could not then be owing herself the $9,000. The bank was no party to the transaction. No lien arose prior to the assignment. Under the facts and circumstances existing herein, we are of the opinion that the decree of the trial court was correct, and the same is hereby affirmed.

Decree affirmed.


text:
    In re Estate of Herman Bloom, Deceased. John B. Pallasch, Appellant, v. Estate of Herman Bloom, Deceased. George Bloom, Appellee.
    Gen. No. 37,755.
    Opinion filed December 27, 1935.
    Rehearing denied January 7, 1936.
    Paul V. Pallasch and Ewart Harris, both of Chicago, for appellant.
    Abrams, Sherman & Lewis, of Chicago, for appellee; Irving S. Abrams, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

John B. Pallasch filed a claim in the probate court of Cook county against the estate of one Herman Bloom, deceased. The claim is predicated upon the following facts: On June 12, 1918, Valeria Szybinski and Jan Szybinski executed a promissory note for the sum of $1,500, secured by a trust deed on certain described real estate, the note to bear interest at the rate of 6 per cent per annum, payable semiannually. Thereafter, the real estate in question was conveyed by the Szybinslds to Herman Bloom and his wife Katherine, both of whom are now deceased. On June 11, 1923, Katherine and Herman Bloom entered into an extension agreement with the payee of the note so secured, which extension agreement is as follows:

“Now, therefore, it is mutually agreed that the payment of the said principal note is hereby extended to the 12th day of June, A. D. 1928, with interest at the rate of 6 per cent per annum, payable semi-annually, until paid, the interest for said extended period being-further evidenced by ten interest coupons of even date herewith, for the sum of Forty-five ($45.00) Dollars each, executed by said second party, and that all the provisions, stipulations, powers and covenants in the said principal note and in the said Trust Deed contained shall stand and remain unchanged and in full force and effect for and during said extended period, except as changed by this agreement; and that the agreements herein contained shall bind and inure to the respective heirs, executors, administrators and assigns of the parties hereto.”

The claim involved here is based upon the extension agreement and the note in question, together with the coupon notes mentioned in this agreement executed by Katherine and Herman Bloom, which were introduced in evidence to establish claimant’s claim in the probate court.

The record discloses that about July 15,1926, Bloom visited the office of John B. Pallasch, claimant, and paid the interest due for the year 1925; that at that time Bloom had begun remodeling the building on the property in question, and that the mortgagee, because of defaults in payments then due, had threatened foreclosure proceeding’s on the note and mortgage; that after some conversation regarding the partial destruction of the building in question, made by Herman Bloom, that Bloom said to the claimant: “Don’t look at the building, I can pay you up.” Subsequently, a bill was filed to foreclose the mortgage, and after Herman Bloom had been served with summons in the cause, the record indicates that he requested that the foreclosure proceedings be postponed; that Bloom was informed by claimant’s representative that he, Bloom, had depreciated the value of the security by destroying the front of the building on the premises, and in allowing it to become dilapidated, and in this same conversation in which Bloom requested that the foreclosure proceeding be postponed, he, Bloom, made the following statement: “I am personally liable for it. I want to keep that building, it is a good site. I will pay your father for the mortgage entirely, and for the interest. ’ ’ This conversation was had with the son of the claimant, an attorney-at-law, who represented claimant in the foreclosure proceeding. Subsequently, and apparently in consideration of Bloom’s promise, the bill to foreclose was dismissed.

After a hearing in the probate court, the claim against the estate of Bloom was allowed, but only in the amount of $333.75 of interest then due. From this order of the probate court, the claimant took an appeal to the circuit court, and on June 22,1934, after a hearing, that court entered an order by which it found against the claimant and for the estate. It is from this order that the appeal herein is being prosecuted.

We are of the opinion that upon the showing made, claimant was entitled to have his claim, with interest, allowed. The judgment of the circuit court is, therefore, reversed and the cause remanded with the direction that judgment be entered for the claimant in the sum of $1,500, with interest to be computed.

Reversed and remanded with directions.

Hebel, J., and Denis E. Sullivan, J., concur.


text:
    In re Estate of Herbert Muth, Deceased. W. H. Vanderploeg et al., Appellees, v. Estate of Herbert Muth, Deceased. Halbert O. Crews, Appellant.
    Gen. No. 37,767.
    Opinion filed December 27, 1935.
    Levinson, Becker, Gilbert, Peebles & Swiren, of Chicago, for appellant; Cecil Emery, of Chicago, of counsel.
    Frisch & Frisch, of Chicago, for appellees; Samuel J. Nordore, of Chicago, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

This in an appeal from an order of the circuit court of Cook county, allowing' the claim of W. H. Vanderploeg', John Utt, John J. Anton, Monroe F. Cockrell and Fred A. Cuscaden, constituting the loan committee duly empowered to act as agent for and on behalf of the members of an unincorporated association transacting business as the National Credit Association Number One of the Seventh Federal Reserve District, against the estate of Herbert Muth, deceased, for the sum of $7,110.

On February 19,1934, there was filed in the probate court of Cook county a claim against the estate of Herbert Muth, deceased, as follows:

“Samuel J. Nordorf, the duly authorized agent in this behalf of the National Credit Association Number One, a corporation, being duly sworn, deposes and says that the annexed claim against the estate of Herbert Muth, deceased, is just and unpaid and that there is due claimant upon four bonds, 2 for $2,000.00 each and 2 for $1,000.00 each, executed by the decedent for the sum of six thousand dollars ($6,000.00), with interest thereon from December 22, 1930, at 6% per annum, making a total of $6,950.00 and that there are no other claims against said estate.”

“Samuel J. Nordorf,

“Subscribed and sworn to before me this 22nd day of September, A. D. 1933,

“Margaret V. Warren,

Notary Public.”

In support of the claim, four bonds executed by Helena B. Muth and Herbert Muth were received in evidence, by the terms of which the makers are shown to be jointly and severally liable for their payment. By order of the probate court, the claim was allowed in favor of the claimant named, for the sum of $7,110, class six, and it was ordered that the claim be paid in the dne course of the administration of the estate. There is no question raised as to the amount of the claim, as allowed. Thereafter, Halbert O. Crews, administrator of the estate of Herbert Muth, perfected this appeal from the order to the circuit court of Cook county. A transcript of the record of the probate court in the cause was filed in the circuit court. On May 3, 1934, on motion of attorneys for claimant, it was ordered by the circuit court “that W. H. Vanderploeg, John Utt, John J. Anton, Monroe F. Cockrell and Fred A. Cuscaden, constituting the loan committee duly empowered to act as agent for and in behalf of the members of an unincorporated association transacting business as National Credit Association Number One of the Seventh Federal Reserve District, be substituted as claimant in place of the National Credit Association Number One, a corporation, and that the pleadings herein be and they are amended accordingly. ’ ’ After a hearing, the court entered the further order that the aforementioned persons constituting the loan committee duly empowered to act as agent for and in behalf of the members of an unincorporated association, transacting business as National Credit Association Number One of the Seventh Federal Reserve District, have and recover from the estate of Herbert Muth, deceased, the sum of $7,110, together with costs of the proceeding. It is from this order that the appeal herein is being prosecuted.

It is insisted by the administrator that inasmuch as the claimant named in the claim filed in the probate court, had no corporate existence, that the claim was a nullity and was void from the beginning and that the defendant having raised the defense of mil tiel corporation in the circuit court at the time the court allowed the claim to be amended, that therefore the court was in error in allowing the amendment; that the persons ■ associated as hereinbefore set forth had no power to sne, and that in view of the fact that there was no showing that there was any ownership of the bonds by any of these claimants, the court was in error in allowing such claim. It is also insisted by defendant that the court was in error in allowing an amendment to the claim to be made in the circuit court, substituting the name of a new and different claimant from the one named in the probate court.

We will first consider the question as to the right to amend, in the circuit court, a claim filed and allowed in the probate court, and pending on appeal to the circuit court, by substituting a new and different claimant. In McCall v. Lee, 120 Ill. 261, a claim based on certain promissory notes was filed on April 11, 1881, in the county court of Fulton county by one McKee, as administrator of the estate of Kate H. Lee, deceased, against the estate of Catherine Dwire, deceased. Over two years later, when the case was called for a hearing, and , after the statutory period in which claims could be filed had expired, the court permitted an amendment of the claim to be made, by which another person was substituted as claimant. It was urged that this procedure was improper. Upon the question, the Supreme Court said:

“It is charged that this amendment was improper; that its allowance amounted to the filing of a new claim by a new party, after the two years, limited for the filing of claims, had expired, and that, therefore, the circuit court erred in directing the judgment in appellee’s favor to be paid out of the assets of the estate in due course of administration. ... In this case, the amendment did not make a new cause of action. The claim, as originally filed, was for the amounts of certain notes and other property, turned over by appellee to Mrs. Dwire in her lifetime. After the substitution of appellee’s name, the claim was still for the same notes and property.”

In paragraph 69 of chapter 3, Cahill’s Revised Statutes 1933, it is provided that:

“In all cases of the allowance or rejection of claims by the county court, as provided in this Act, either party may take an appeal from the decision rendered to the circuit court of the same county, in the same time and manner appeals are now taken from justices of the peace to the circuit courts, by appellant giving good and sufficient bond, with security, to be approved by the county judge; and such appeals shall be tried de novo in the circuit court. ’ ’

It is the policy of the law of this State that the courts be liberal in allowing amendments to pleadings made in the furtherance of justice.

Chapter 110, paragraph 174 of Illinois State Bar Stats. 1935, provides that:

“At any time before final judgment in a civil action, amendments may be allowed on such terms as are just and reasonable, introducing any party who ought to have been joined as plaintiff or defendant, discontinuing as to any plaintiff or defendant, changing the cause of action or defense or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross demand. ’ ’

In Grier v. Cable, 159 Ill. 29, the Supreme Court passed upon the provisions of the Administration Act, with reference to the filing and adjudication of claims against the estates of deceased persons and the character and scope of the proceedings provided by statute therefor, and among other things, said:

“We are of the opinion that the proceedings provided by law in this State for the presentation and allowance of claims against the estates of decedents are in no proper sense suits or proceedings at law or in chancery, but purely statutory proceedings, provided for the prompt and summary presentation, allowance and classification of all just claims against snch estates. In some States claims are only required to be presented to the executor or administrator, and his settlement of them in due season obviates all further proceedings on the claimant’s part, while his refusal or neglect to settle throws the claimant back upon his usual remedies at law, and the probate tribunal passes, not upon individual claims, but only upon the administration account, with its various items, and not in advance of payment, but after payment has been made. (Schouler on Executors and Administrators, sec. 420.) And this is believed to have been substantially the mode pursued in the administration of estates in England. But in this State each separate item must be presented to and allowed by the court exercising probate jurisdiction, and assigned to its proper class, before payment can properly be made. . . .

“In all of its essential features this proceeding is distinctively statutory. The mere fact that when a claim is contested, so as to necessitate a trial, the trial is to be conducted in the same way in which suits at law are tried, can not, of itself, have the effect of converting a purely statutory proceeding into a suit or proceeding at law. In all other respects the proceeding is sui generis, and bears no analogy to proceeding's conducted according to the forms of the common law. No written pleading's are required. (Thorp v. Goewey, 85 Ill. 611; Wolf v. Beaird, 123 id. 585.) The proceeding is not governed by the technical rules which apply to suits at law. (Scheel v. Eidman, 68 Ill. 193.) ”

In Oberman v. Camden Fire Ins. Ass’n, 314 Ill. 264, in construing the statute of amendments, the Supreme Court made the following observations:

“By section 39 of the Practice Act amendments may be allowed in a civil suit at any time before final judgment, on such terms as are just and reasonable, including the change of parties plaintiff, and by that section the adjudication of the court allowing' such amendment ■ shall be considered conclusive evidence of the identity of the action. It cannot be doubted that under that section the court had a right to amend by substituting other parties plaintiff.”

In view of the fact that the bonds upon which the claim herein is based had been presented to the probate court in support of the claim, and the fact that the amendment in the circuit court merely designated what was claimed to be the party having the right to recover on these bonds, we are of the opinion that the court was not in error in allowing the amendment to be made.

As stated it is also claimed that there is no showing of the right of this loan committee of this unincorporated association to recover upon these bonds.

D. Gr. Bellows, a witness produced by the claimant in the circuit court, testified in substance that he was connected with the National Credit Association of the Seventh Federal Reserve District in the capacity of clerk; that he was familiar with the formation of the National Credit Association of the Seventh Federal Reserve District, and that it was an unincorporated association of subscribing banks; that it was formed under articles of agreement evidenced in writing; that the original agreement is with the National Credit Corporation of New York, which is the parent institution of all associations, and that there is such an association for each Federal Reserve District.

Counsel for the executor do not dispute the fact that the loan committee of this association, as found by the court in its order of May 3, 1934, was the legally constituted loan committee of this association, that they were in the legal possession of these bonds at the time of the hearing in the circuit court, that the bonds were payable to bearer, and that they were due and unpaid.

Article 8 of the by-laws of the plaintiff association, entitled “Authority of Loan Committee,” contains the following:

“The members of the Association hereby irrevocably constitute and appoint the Loan Committee, as at any time constituted, acting by a majority of its members then in office, as the agent of the members and each of them, with power to act in the name of the Association for the purpose of carrying out the objects and purposes of the Association.”

In Schatzkis v. Rosenwald & Weil, 267 Ill. App. 169, certain bonds had been deposited with the Chicago Title & Trust Company under an agreement, and the question arose as to the right of the Chicago Title & Trust Company to bring suit on such bonds, and the court said:

“It is undisputed that the bonds described in the demand had been deposited with and were in the possession of the Chicago Title & Trust Company as depositary for the Bondholders’ Protective Committee. Possession of the bonds was prima facie evidence of ownership. (Hoff v. Dougherty, 243 Ill. App. 159, and cases cited.) On this state of the record the question is whether the offered proofs tended to support the cause of action. We believe they did and that the court erred in sustaining the objection.”

It is not disputed that the purpose of the association, as shown by its articles of agreement introduced in evidence, was to loan money. If the association had the power to loan money, it certainly possessed the power to enforce the repayment of these loans, in case they were not paid when due.

In Guilfoil v. Arthur, 158 Ill. 600, certain real estate had been conveyed by Mary J. Mitten to John H. Guilfoil in trust for the widows and orphans of the deceased members of the Brotherhood of Locomotive Engineers. G-uilfoil entered into the possession of the property, collected the rents and profits therefrom, and appropriated them to his own use, and refused to account for same to the officers of the brotherhood. A bill was filed by Arthur, and other officers of the Brotherhood of Locomotive Engineers, asking for the removal of the trustee and for an accounting. The Brotherhood of Locomotive Engineers was a voluntary association, not incorporated. It was insisted that the parties complainant could not sue, or be sued, nor could they authorize anyone to sue for them, and the court said:

“The bill might have been brought in the names of all the members of the Brotherhood of Locomotive Engineers, as persons jointly interested in the property; but where the members of an unincorporated association are numerous, as is the case here, the action may be brought in the names of a portion of the members, who sue for themselves and in behalf of all the other members, or, as was done in Beatty v. Kuntz, 2 Pet. 584, the action may be maintained in the name of a committee of persons regularly appointed by the organization. ’ ’

The record as filed indicates that judgment had been obtained on these bonds in the municipal court prior to the filing of the claim in the probate court, and in his brief it is insisted by the executor that therefore the bonds were merged in the judgment, and that no right of action can be predicated upon them.

Since the filing of the record in this court, and in accordance with paragraph 220, section d, chapter 110, Illinois State Bar Stats. 1935 (the Civil Practice Act), there has been received in this court, as evidence, under the stipulation of the parties to the record, a transcript of the judgment of the municipal court of Chicago, in the matter referred to, which shows that on the 18th day of August, 1933, the National Credit Association, a corporation, obtained a judgment for $7,327.50 against Helena B. Muth. It is our opinion that this judgment needs no further consideration here, inasmuch as the decedent,'Herbert Muth, was not included in the judgment. It is also apparent that the person obtaining the judgment was nonexistent.

We are of the opinion that the circuit court was not in error in allowing the amendment to the claim to be made. Also, that the court was not in error in allowing the claim in favor of the claimant against the estate of Herbert Muth, deceased. Therefore, the judgment is affirmed.

Affirmed.

Hebel, J., and Denis E. Sullivan, J., concur.


text:
    Coen-Berkson and Company, Inc., Appellee, v. M. Martin Gordon and Joseph R. Gordon, Appellants.
    Gen. No. 37,777.
    Opinion filed December 27, 1935.
    Caplow, Kallen & Caplow, of Chicago, for appellants ; C. A. Caplow, of counsel.
    Welch & Hoffman, of Chicago, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

On December 9, 1932, plaintiffs brought suit in the circuit court of Cook county against the defendants in an action of assumpsit. Thereafter on December 19, 1932, defendants filed a plea of the general issue, together with an affidavit of merits. On April 4, 1934, judgment was entered in favor of plaintiff corporation for the sum of $4,724, the court reciting in its judgment order that “the cause was called for trial, and defendants failing to appear to prosecute the suit in this behalf, ex parte comes the plaintiff ... by its attorney, and on motion of attorney for the plaintiff this cause is submitted to the court for trial,, and the court . . . after hearing all the evidence, . . . and being fully advised in the premises, finds the issues for plaintiff, and assesses the plaintiff’s damages at the sum of $4,724.00.” Thereafter, on April 21, 1934, defendants filed a verified petition, in which it is recited inter alia that on the 28th day of March, 1934, the cause, after being called for trial, was continued to April 18, 1934, and such fact was so noted upon the clerk’s call sheet. Defendants prayed that the judgment against them be vacated. To this petition, the plaintiff filed an unverified answer, in which it does not deny the allegation in defendants’ petition as to the continuance of the cause, but avers that defendants had not been diligent in seeking to vacate the judgment, and that they had no meritorious defense; also, that the cause, when heard, was reached on a regular call. On June 9, 1934, a hearing was had on the petition and answer, and the court denied defendants ’ motion to vacate the judgment. On July 2, 1934, defendants filed an amended petition in the cause, in which they recite inter alia the fact of the continuance of the case, as above recited, and that the court had passed upon their first petition on June 9, 1934. They attach to this petition a photostatic copy of the daily call sheet of March 27,1934, of Judge Roman E. Posanski, who entered the judgment against defendants, and who heard the petitions for the vacation of the judgment, which copy was certified by the clerk of the circuit court as being true and correct. This call sheet confirms the statement of defendants that at the time the case was called for trial on March 27th, it had been continued, as alleged in the former petitions, to April 18,1934. This last motion was denied by an order entered on July 2, 1934. On July 16, 1934, a notice of appeal from this order of July 2, 1934, was served on plaintiffs, and filed in the office of the clerk of the circuit court, and on July 20, 1934, an order was entered approving defendants’ appeal bond in the sum of $5,000.

In McKee v. Ludwig, 30 Ill. 28, the plaintiff in the suit, upon an affidavit filed, obtained a continuance of the cause to a subsequent term of the court. Thereafter, and at the term at which the continuance was granted, the defendant in the cause appeared and moved that the continuance be set aside for the reason that the affidavit filed-was not sufficient. The plaintiff had no notice of the motion, and did not appear at the hearing. The court entered an order vacating the order continuing the case, and entered judgment against the plaintiff for costs. In reversing the judgment, the Supreme Court said:

“After the order for the continuance had once been granted, and the claimant allowed to depart, supposing that the cause was disposed of for the term, he was entitled to reasonable notice before setting aside that order, and proceeding to take a default for his nonappearance. The court therefore erred in setting aside the continuance, and allowing the claimant to be called without such notice. ’ ’

In Mattoon v. Hinkley, 33 Ill. 208, the court held that “If a continuance has been granted in a cause, and afterwards set aside, it is irregular to take a default without notice to the other party.”

From the reading of the record here, we are convinced that the attorneys for the plaintiff were fully cognizant of the fact that the cause had been continued when it was called for a hearing, as alleged by defendants in their petition, and we are of the opinion that the court was in error in hearing the cause ex parte at the time it was heard, and in entering judgment against defendants on such ex parte hearing after the cause had been so continued to a certain subsequent date, as it is shown conclusively that it was. A motion has been made to dismiss the appeal, which has been reserved to the hearing. This motion is denied, and the judgment is reversed and the cause remanded for a hearing on the issues as made by the pleadings.

Reversed and remanded.

Hebel, J., and Denis E. Sullivan, J., concur.


text:
    Peoples National Bank of Kansas City, Appellee, v. J. S. Cosden, Appellant.
    Gen. No. 37,853.

      Opinion filed December 27, 1935.
    B. W. Bosenstone, of Chicago, for appellant; Weightstill Woods, of Chicago, of counsel.
    Click & Goldstein, of Chicago, Henning & Baker and Bobertson, Boddington & Emerson, all of Kansas City, Kan., for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Cook county, for the sum of $14,742.61, against the defendant and in favor of the Peoples National Bank of Kansas City, Kansas.

It is alleged in the complaint filed in the cause that the plaintiff is a corporation, organized under the laws of the State of Kansas; that on July 7, 1931, at Fort Worth, Texas, the Bichardson Befining Company, a corporation, by C. F. Dyckman, its secretary and treasurer, executed a promissory note, bearing date of the day of its execution, whereby the Bichardson Befining Company promised to pay to the Kaw Steel Construction Company, a corporation, in 90 days after its date, the sum of $12,518, with interest from date at 6 per cent, the note being made payable at the Fort Worth National Bank, Fort Worth, Texas; that the note was given to the Kaw Steel Construction Company in payment of certain merchandise theretofore sold by the Kaw Steel Construction to the Bichardson Befining Company; that on June 12,1930, the defendant Cosden requested the Kaw Steel Construction Company to sell to the Bichardson Befining Company certain merchandise to the extent of $25,000, and that Cosden, at the same time, executed and delivered to the Kaw Steel Construction Company the following document:

‘ Guaranty

“In consideration of merchandise hereafter to he shipped on past or future orders on credit by the Kaw Steel Construction Company to Richardson Refining-Company of Fort Worth, State of Texas, and in order to induce such credits and shipments by said firm, the undersigned does hereby guarantee the prompt payment at maturity of all indebtedness so incurred by said Richardson Refining Company to said Kaw Steel Construction Company for all merchandise so shipped, not exceeding, however, at any one time the sum of Twenty-Five Thousand Dollars ($25,000.00).

“This Guaranty is accepted by the Kaw Steel Construction Company and credit extended and merchandise shipped upon the following conditions:

“The account or accounts or any part thereof for the merchandise that may be shipped by the said Kaw Steel Construction Company in reliance on his Guaranty may at any time be settled and adjusted between them and the principal debtor by note or notes of the debtor, either endorsed or unendorsed, and with or without further security, and the time of payment of said accounts or notes or other security given therefor may be extended from time to time by said Kaw Steel Construction Company to the principal debtor without notice to the undersigned, all of which may be done without, in any way, affecting- obligations hereby created. The undersigned hereby expressly waives notice of the acceptance of this guaranty by said Kaw Steel Construction Company of all credits extended and shipments of merchandise made hereunder and of the taking of notes or other security for such indebtedness as may be incurred by the principal debtor to the said Kaw Steel Construction Company.

‘ ‘ This instrument is intended to be and shall be constructed to be a continuing Guaranty to the extent of the sum of Twenty-Five Thousand Dollars ($25,000:00) without further notice to the undersigned and shall not be revoked by the death of the Guarantor but shall remain in full force and effect until the undersigned or the executor or the administrator of the undersigned shall have given notice in writing to make no further advances on the security of this Guaranty and until such written notice shall be received by you from the undersigned or his executor or administrator. A registry return receipt for said letter shall be conclusive evidence of receipt of notice of revocation. Such revocation when made shall apply only to sales made by the principal debtor subsequent to the receipt of such notice of revocation, and any payments thereafter made by the principal debtor shall be applied as said Kaw Steel Construction Company may elect. In the event of default by the principal debtor in payment of the debt or any part thereof, recovery therefor may be had directly against the undersigned without previous notice or without requiring the prosecution of the claim against the principal debtor and upon such proof as is competent and admissible against the principal debtor.

“In Witness Hereof, I have hereunto set my hand and seal at Ft. Worth, State of Texas, this 12th day of June, 1930.

“J. S. Cosden

“Witness J. J. Purcell.”

■ It is alleged that subsequent to July 7,1931, the Kaw Steel Construction Company, for a valuable consideration, assigned and transferred to the plaintiff bank the note signed by the Richardson Refining Company, and the guaranty signed by the defendant, and that the note was indorsed as follows: “The Kaw Steel Construction Co. By R. S. Wilkins, Treas. ’ ’ The guaranty bears the following indorsement:

“For value received The Kaw Steel Construction Co. hereby assigns, sets over and transfers to The Peoples National Bank of Kansas City the written guarantee of J. S. Cosden upon which this assignment is endorsed, together with all right existing thereunder as security and guarantee of a note for $12,518.00, dated July 7, 1931, maturing 90 days after date, given by Bichardson Defining Company to The Kaw Steel Construction Company and endorsed to the Peoples National Bank of Kansas City, herewith.

“The Kaw Steel Construction Company By B. S. Wilkins,

Secretary and Treasurer. ’ ’

It is further alleged that no payment has been made on the note or on the guaranty, although demand for payment had been made, and that there is due plaintiff the sum of $12,518, together with interest from July 7, 1931.

A motion was made by defendant to strike the complainant’s complaint. The motion was denied, and the defendant elected to stand on its motion to strike, and filed no answer to the bill of complaint. The court ordered that default be entered against the defendant for want of an answer, and on June 21, 1934, entered the judgment from which this appeal is being prosecuted.

One Wilkins, a witness produced by plaintiff, testified that he was secretary and treasurer of the Kaw Steel Construction Company of Kansas City; that the Kaw Steel Construction Company had furnished to the Bichardson Defining’ Company certain refining equipment, and that this equipment was paid for by a note, and that the note was never paid; that he, the witness, requested that defendant furnish a personal guaranty of the Bichardson Defining Company account prior to the delivery of the merchandise and that the guaranty referred to in the complaint was given to the witness; that after the merchandise was furnished to the Richardson Refining Company by the Kaw Steel Construction Company, a demand was made on Cosden to pay the account, but that it was never paid; that the witness, as secretary of the Kaw Steel Construction Company, received the following letter from Cosden, dated New York, September 26th, 1932:

“Dear Mr. Wilkins:

“Am enclosing copy of letter received from my attorney, which explains the ínatter. I certainly will have to be guided by his advice, due to the circumstances as stated in his letter.

“I agree with him, and personally can see no reason for signing a new guarantee, as there is one still in force, and action can be taken on it if necessary.

“It is not my desire to evade the issue or to complicate the matter, but at the same time due to the condition of my affairs, it is imperative that I protect myself in every possible way.

“Undoubtedly the Richardson matter will be settled at an early date, and after that, a new guarantee can be drawn which will be satisfactory to you.

“With kindest regards, I am

“Very truly yours,

J. S. Cosden.”

JSO MEG

This witness testified that the note in question not having been paid, the note and guaranty were discounted at the Peoples National Bank of Kansas City, and the note and guaranty were assigned to the bank; that the merchandise in question was delivered to the Richardson Refining Company prior to the assignment of the note and guaranty in question, to the plaintiff bank, and that no part of the sum claimed to be due on the note and guaranty had ever been paid.

The cashier of the plaintiff bank testified that the note in question was discounted at the Peoples National Bank of Kansas City by the Kaw Steel Construction Company, and that the guaranty in question was assigned to the Peoples National Bank by the Kaw Steel Construction Company, and that the bank paid for the same and gave credit on its books to the Kaw Steel Construction Company to the amount of such consideration.

The defendant offered no proof. It is the contention of the defendant that the alleged guaranty is not assignable; that there is no allegation in the complaint that any merchandise was sold or credit advanced on the faith of the guaranty, and that the plaintiff has failed to file security for costs.

On the question of the failure of plaintiff, a nonresident corporation, to furnish security for costs, the record shows the following: Defendant was served with summons in the cause on April 3,1934, and his appearance was filed therein on May 3,1934. On May 7,1934, at the request of the defendant, the following stipulation was entered into between the parties: “It is hereby stipulated and agreed by the attorneys for the plaintiff and attorneys for defendant, that defendant shall have up to and including the 21st of May, A. D. 1934, to file an answer in the above entitled cause.” On May 28,1934, defendant filed a written motion to dismiss the cause, and then for the first time raised the question as to the plaintiff’s failure to file security for costs.

In Trustees of Schools v. Walters, 12 Ill. 154, with reference to a motion made that the plaintiff give security for costs, the Supreme Court said:

“The defendants were too late with the motion to dismiss, after answering to the merits of the action. It is a dilatory motion, in the nature of a plea in abatement, and if not made in due time, must be considered as waived by the party. The want of a bond for costs does not affect the jurisdiction of the court. It is required to be given for the benefit of the defendant, and he may insist upon or waive his right. If he objects to the prosecution of the action because no security for costs was given when it was commenced, he must interpose the objection before he attempts any defense on the merits. He cannot raise the objection after the time has passed for pleading in abatement.” See also Randolph v. Emerick, 13 Ill. 344; Dunning v. Dunning, 37 Ill. 306, and People v. Cloud, 50 Ill. 439.

Under the Civil Practice Act, the motion to dismiss is in the nature of a demurrer, and the motion that plaintiff be ruled to give security for costs is a part of and included in this motion to dismiss. Prior to the filing of this motion, a stipulation had been entered into at the request of the defendant to continue the time for filing the motion to dismiss. We are of the opinion that the motion, being dilatory in its nature, was not made in apt time, and that the failure of the court to require security cannot be assigned as error. Further, in view of the fact that the judgment is for plaintiff, even though the court erred in refusing to require plaintiff to furnish a bond for costs, such error is held to be harmless. People v. Morgan, 188 Ill. App. 250; Beal v. Pratt, 67 Ill. App. 483.

From the language of the guaranty executed by defendant, we gather that it was given as security for the payment of merchandise to be sold by the Kaw Steel Construction Company to the Richardson Refining Company up to the amount of $25,000, and that the taking of the note by the Kaw Steel Construction Company for the amount due this company from the Richardson Refining Company merely, had the effect of liquidating or making certain the amount due at the time of the taking of the note by the Kaw Steel Construction Company. After the goods were shipped, and at the time the note and guaranty were assigned to plaintiff, the right of action of the Kaw Steel Construction Company against the defendant had accrued. The assignment of the note to the plaintiff corporation, togetker with the contract of guaranty, merely assigned to plaintiff the right to recover for monies then due, and agreed to be paid by the defendant to the Kaw ' Steel Construction Company.

In Stern v. Gelder, 224 Ill. App. 89, it appears from the opinion that the American Tractor Corporation was indebted to one Eosenthal to a considerable sum for salary and expenses, and that the defendant Gelder, wishing to become president of the corporation, asked Eosenthal to resign such office which he then held. This, Eosenthal refused to do, unless Gelder personally guaranteed the payment of the claim of Eosenthal against the American Tractor Corporation. Thereupon, Gelder executed the following agreement:

“A. E. Eosenthal,

Chicago, Ill.

“Dear Sir: For One Dollar and other considerations, payment of which is hereby acknowledged, we guarantee the payment to you of your claims against the American Tractor Corp. for salary and expenses as shown on their books, amount approximating $1,700.00 and agree if the American Tractor Corporation does not pay this account in sixty days from date, to pay it ourselves.

E. E. Gelder.”

The amount due Eosenthal from the American Tractor Company was not paid, and thereafter Eosenthal assigned to Stern, the plaintiff in the case, his claim against the American Tractor Company and against Gelder. Stern sued Gelder on the guaranty and recovered a judgment, from which the appeal was taken, and the point raised in the case was that the guaranty was special and not assignable, and in affirming the judgment, the court said :

“We deemit unnecessary for us to discuss the question of whether the instrument of guaranty above set forth is a special guaranty or whether it is assignable, for the reason that the instrument in question assigns only Eosenthal’s claim against Gelder arising out of the guaranty. Eosenthal’s claim against the American Tractor Corporation remained unpaid after the end of 60 days from the execution by Gelder of the guaranty. The money was due from G-elder and the guaranty had ripened into a cause of action. Therefore, under section 18 of the Practice Act (Cahill’s Ill. St. ch. 110, 1Í18) Stern could maintain an action in his own name.

“Although a contract may be such that it is not assignable, nevertheless, money which has become due under it may be assigned. (Barrett v. Regan, 177 Ill. App. 311; Sloan v. Williams, 138 Ill. 43; In re Wright, 85 C. C. A. 206,157 Fed. 544; Browne & Co. v. John P. Sharkey Co., 58 Ore. 480.) The first contention of appellant therefore does not reach the merits of the case.”

We are of the opinion that on the case made, the court was not in error in entering the judgment, and it is, therefore, affirmed.

Affirmed.

Hebel, J., and Denis E. Sullivan, J., concur.


author: Mr. Justice Hebel

text:
    Jack Cope, Appellee, v. Air Associates, Inc., Appellant.
    Gen. No. 37,863.

      Opinion filed December 27, 1935.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellant ; Nathaniel Rubinkam and William S. Allen, of Chicago, of counsel.
    Lloyd T. Bailey, of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an action by the plaintiff against the defendant to recover damages for injuries sustained by him on the 25th day of July, A. D. 1931, due to the negligent and improper preparing and folding of a parachute by the defendant, which was used by the plaintiff in making a parachute jump from an airplane more than 2,500 feet in the air.

Upon a trial of the cause before the court and a jury, judgment was entered against the defendant for $5,000 and costs, and upon petition for leave to appeal, this court granted such appeal.

It is alleged in plaintiff’s declaration that plaintiff was injured by reason of the failure of a parachute . to open and retard the fall of the plaintiff when he jumped from an airplane; that the plaintiff at the time of the accident had five years ’ experience in this work, and at th'e time was in the exercise of ordinary care and caution for his personal safety; that the defendant knew that the parachute was loaned and delivered to the plaintiff to be used for the purposes intended, and it became the duty of the defendant by its agent to use the highest degree of care in preparing, packing and folding said parachute; that the defendant failed to properly prepare, pack and fold said parachute so that the parachute failed to operate when the plaintiff jumped from the airplane, and by reason of the failure of the parachute to open, the plaintiff was caused to fall to the earth and thereby injured.

To this declaration the plaintiff filed a plea of not guilty.

The defendant contends that the plaintiff failed to prove any negligence on the part of the defendant or its agents or servants in preparing, packing, arranging and folding said parachute.

The facts as they appear from the record are, in substance, that the plaintiff carried two parachutes, which were attached to his body and which were contained in two enclosed separate packs; that when the plaintiff pulled what is known as a rip cord the packs were released and the parachutes dropped from the packs. The parachute is known as a Bussell Lobe type. The conventional parachute has a top which forms a round effect, but the “Lobe” chute, so-called, has the top pulled down flat, and in order to give this full effect, there are four cords that extend from the top of the parachute, which are shorter than the cords which run to the edge of the parachute, and as the parachute opens, the four cords, being shorter, cause the top to be flat. The parachute when released unfolds and the cover top, by the descent, fills with air; that the plaintiff after he had reached a height of about 2,500 feet in the airplane, jumped out and descended a number of feet, pulled the rope attached to the pack in which the parachute was placed, and in doing so it opened and the parachute was released only in part; that when the plaintiff observed that the parachute did not fully open he pulled the rip cord attached to the pack containing an emergency parachute, and this parachute did not open. It was tangled in the ropes attached to the parachute when the plaintiff landed and was injured.

The facts indicate that the parachute did not open and fill with air so as to retard the speed and prevent the force of the fall.

It also appears that when these packs were delivered by the defendant to the plaintiff, they were not open for inspection by the plaintiff, although there is evidence that they were packed by a licensed rigger and that the defendant knew or should have known the use to which the parachutes were put, and that the parachute should be properly packed for use by the plaintiff ; that in the use of the parachutes, not alone of the larger one, but also of the emergency one, they did not operate for the purposes intended. The Supreme Court laid down the rule of conduct applicable where the question of negligence is involved, in the case of O’Rourke v. Marshall Field & Co., 307 Ill. 197, as follows:

.“The doctrine of res ipsa loquitur does not, as is supposed, apply to this case. It does not apply where there is evidence of specific negligence. That doctrine is that while negligence is not, as a general rule, to be presumed, yet where the injury occurs ás the proximate result of an act which under ordinary circumstances would not, if done with due care, have injured anyone, the case is taken out of the general rule and becomes one in which there is' a presumption of negligence; also where the instrument effecting the injury is shown to be under the management of the one charged with negligence or his servants and the accident is such as in the ordinary course of things does not happen if those who have the management of such instrument use proper care, such fact affords reasonable evidence, in the absence of explanation by the defendant, to raise the presumption that the accident arose from negligence on the part of the one having the management of such instrument. ’ ’ And as we have already indicated in this opinion, it was for the jury to determine from all of the evidence and circumstances in the case whether the defendant was guilty as charged in plaintiff’s declaration.

There is evidence that a witness called by the defendant testified that he was a parachute rigg*er, licensed by the United States Department of Commerce, and that the witness prepared the parachute used by the plaintiff; that the method used by the witness was the usual method used in packing parachutes, and was the same method he used in packing 500 other parachutes. From his evidence it also appears that the defendant delivered the second parachute on the same day, and that this parachute was packed sometime within 30 or 40 days prior to the time the witness packed the parachute that failed to operate, and was a parachute the same size as the first one; that based upon his experience as a parachute rigger, it was impossible to tell from the outside of a parachute casement whether or not that particular parachute was properly or improperly packed, and that if a parachute is properly packed, it opens in the air and the parachute is all the man has to depend upon when he jumps out of the plane. Therefore, the question here to be determined is whether the evidence is sufficient to sustain plaintiff’s declaration, wherein it is alleged that the defendant failed to properly prepare, pack and fold the parachutes, and by reason thereof the parachutes failed to operate when the plaintiff jumped from the plane.

It is true that the plaintiff is required to prove the allegations of his declaration. The evidence establishes that the plaintiff in descending from the airplane at the height testified to properly used the means afforded to open the parachutes in order to retard the speed of his fall. It is well to bear in mind that when the parachute opens in the air it is all the parachute jumper has to depend upon to retard the speed of his descent after he jumps out of the plane, and whether or not the parachutes failed to open when operated was a question for the jury. The facts were before the jury, and from the evidence it appears that the two parachutes operated by the plaintiff and furnished to him by the defendant did not open so as to retard the speed of his fall. The defendant knew the purposes for which these parachutes were furnished, and the care required of the defendant was such as an ordinarily prudent person would use in packing these parachutes, and such degree of care as was commensurate with the circumstances surrounding the use of the parachutes, and we are of the opinion that there is sufficient evidence from the facts and circumstances for the jury to determine whether the parachutes used by the plaintiff were properly packed, and this evidence supports the allegations of plaintiff’s declaration.

The contention is made that the court admitted evidence that an emergency parachute was furnished by the defendant, and that this evidence was not permissible under the allegations of the declaration, for the reason that the declaration alleged that the parachute was not properly packed. The answer suggested by the plaintiff is this: If the plaintiff had failed to operate the emergency parachute furnished him by the defendant, it could well be maintained that he was guilty of contributory negligence in not using this emergency parachute when he, according to his evideuce, observed that the parachute released by him did not fully fill with air and appeared to be tangled with the ropes attached to this parachute.

We believe that it was the duty of the plaintiff to use this emergency parachute when the other parachute released by him failed to fill with air, and had he failed to do so he would have been charged with contributory negligence, as suggested by the plaintiff. We are of the opinion that the admission of this evidence was not error such as would justify a reversal.

The judgment is affirmed.

Judgment affirmed.

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