author: Mr. Justice Gridley

text:
    Margaret A. Retzinger, Executrix of the Estate of Elias Retzinger, Deceased, Appellee, v. Michael Retzinger and Joseph Retzinger, Appellants.
    Gen. No. 30,116.
    1. Estates of decedents — jurisdiction of appeal from order directing sale of real estate to pay debts. An order of the probate court directing the sale of a decedent’s real estate to pay debts does not involve a freehold, and an appeal therefrom is properly taken to the Appellate Court.
    2. Appeal and error — effect of omission from record of order extending time for filing appeal bond. Where an appeal bond on appeal from an order of the probate court is filed and approved within the time set by the order of that court allowing an extension of the time, the fact that, through inadvertence or mistake of the clerk of the probate court, the order extending the time for filing the bond is not included in the record is not ground for dismissal of the appeal for failure to file the bond within twenty days after the entry of the order where, on appellant’s motion suggesting a diminution of the record, a duly certified transcript of the extending order is filed in the Appellate Court.
    3. Appeal and error — propriety of dismissal of appeal where record, although prima facie incomplete, affords basis for review. Though the short record and the record supplemental thereto, on appeal from an order of the probate court, do not disclose that they form a complete record, the appeal will not be dismissed for want of properly authenticated records, where the record as filed is sufficient for a determination of some of the errors assigned and to present fully and fairly the questions involved.
    4. Wills — construction of will devising “rest and residue” of estate. In the absence of language showing a contrary intention, the words “rest and residue” are to be construed as meaning what remains of the estate after the debts, charges and particular legacies, including the widow’s allowance, have been paid.
    5. Wills — order of application of devised lands to payment of debts of testator. Where a testator who dies seized of three parcels of real estate and no personalty directs his executrix to pay all of his debts, then specifically devises one of such parcels to his wife, another parcel to certain heirs, and then, without specifically mentioning the remaining parcel, provides that all the “rest and residue” of his real and personal property is devised to his wife, it is error to direct that the parcel devised to heirs shall he first sold to pay the testator’s debts and the widow’s award, . with provision for apportionment of the indebtedness, including the award, between the widow’s real estate and that of such heirs on distribution, but the parcel not specifically devised should be sold first and the apportionment made on distribution, and in the event that the proceeds thereof prove insufficient the balance should be a charge upon the parcel devised the heirs, which should be sold and apportionment made, on distribution, between the widow and heirs according to the values of their respective parcels.
    6. Estates of decedents — application of order for sale of testar tor’s land for payment of debts, to purchase money paid by testator’s vendee on land contract. Where a parcel of real estate not specifically devised is occupied by one under a contract of purchase with the testator, in the event that such performs his contract and pays in the purchase money, an order directing the sale of such parcel to pay the testator’s debts will attach to the purchase money paid in under such contract.
    Appeal by defendants from the Probate Court of Cook county; the Hon. Henbt Horne®, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.
    Reversed and remanded with directions.
    Opinion filed December 8, 1925.
    Rehearing denied December 17, 1925.
    Morton T. Culver, for appellants.
    Stebbins, Garey, L’Amoreaux & Hurtubise, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

This is an appeal from an order of the probate court of Cook county, entered October 24,1924, directing the sale of a certain parcel of real estate owned by deceased during his lifetime to pay debts, etc.

Elias Betzinger died testate on February 28, 1920, leaving him surviving as his heirs-at-law Margaret Betzinger, his widow; Francis, Irene and Sidney Bet-zinger, minor children and heirs-at-law of Frank Bet-zinger, who was a son of the deceased and who died before him; and Michael, Joseph, John, Leo P. and George Betzinger (aminor), five sons. The will, dated March 4, 1907, was admitted to prohate and letters issued to the widow, as executrix, on June 7,1920. The inventory disclosed that the deceased did not leave any personal property but that he died seized of three parcels of real estate in Cook county, which for convenience may be described as follows: Parcel No. 1. About 12 acres of unimproved land, situated in the Town of Northfield and adjoining about 2% acres of improved land lying within the Village of Shermerville. Parcel No. 2. Two lots in block one (1) of Ira Brown’s Addition to Glencoe, improved by a two-story frame building. Parcel No. 3. Said 2% acres of land, improved by a building, which at the time of his death the deceased and his family occupied as a homestead. On September 13,1921, the probate court approved an award to the widow of $2,000, of which $1,800 was given for her support, and $200 for the support of the minor child (George) for the period of one year after the death of deceased. Claims of other creditors were allowed to the extent of $143, and on October 20,1921, the court approved the account of the executrix, showing no cash on hand, or receipts, or personal property, but total liabilities of $2,143, made up of said award and claims.

In the petition of the executrix (filed November 17, 1921) for a sale of real estate to pay said widow’s award, debts, etc., after stating the facts substantially as above set forth, it is alleged that Parcel No. 1 is subject to an unpaid trust deed given to secure a note of $550, executed by deceased and petitioner on August 25,1917, and bearing interest at 5 per cent per annum ; that Parcel No. 2 is subject to an unpaid trust deed given to secure a note of $1,000, executed by deceased and petitioner on November 16, 1916, and bearing in-, terest at 6 per cent per annum, and also to the rights of Alfred Lorenz, as a tenant in possession and “on § contract for the purchase thereof”; and that since the death of the deceased Parcel No. 3 has been occupied by petitioner and said minor child and is subject to petitioner’s homestead rights. She prayed that the heirs-at-law of deceased, the trustees of the trust deeds, the unknown holders or owners of the notes, Alfred Lorenz, and others be made parties, that a guardian ad litem be appointed for the minor heirs, and that she be ordered “to sell all of said real estate of the deceased, or such portion thereof as shall be necessary, to pay the debts of said deceased, * * * and the expenses of administration, according to the statute,” etc. Subsequently, Michael, Joseph and John Betzinger filed their joint and several answer to which certain amendments were made, and in which they took the position that Parcel No. 2, devised to petitioner in the residuary clause of the will, should be first sold to satisfy said debts, etc., which parcel, they alleged, was of a value, outside of the mortgage thereon, greatly in excess of the amount necessary to pay said debts, etc. Certain defendants, including Alfred Lorenz, were defaulted, and other defendants filed answers and the petition was put at issue and there was a hearing.

On October 24, 1924, the order appealed from was entered. After making findings substantially in accordance with the facts as above stated in the second paragraph of this opinion, the court further found in substance that, since the death of the deceased, Parcel No. 3 has been occupied by said Margaret Betzinger, widow, and her children, Leo P. and George, and is subject to her right of homestead and dower; that Parcel No. 2 “is occupied by Alfred Lorenz, as a tenant from month to month under an agreement to purchase same”; that Parcels No. 1 and No. 2 have unpaid mortgages thereon as stated in the petition; that it will not be necessary to sell all of the real estate, but that Parcel No. 1 is of sufficient value to pay said debts, etc.; and that Margaret Betzinger, widow, has failed, within the time allowed by law, to file a renunciation of the will and thereby has elected to take under it. It is then ordered and decreed that petitioner proceed to first sell Parcel No. 1, or so much thereof as may be necessary; that “upon distribution herein, the court will ascertain the comparative value of the real estate devised to the widow and that devised to the heirs-at-law and apportion the indebtedness of said estate, including the widow’s award allowed, according to the respective values of the property devised,” but that the homestead, devised to Margaret Betzinger (Parcel No. 3) “is not to be considered in said valuation or to be made subject to sale”; and that upon the sale being made petitioner make and execute to the purchaser a good and sufficient deed, etc., and “report her action in the premises to the court for confirmation before delivery of any deed or deeds of the premises.”

To the entry of this order, and on the day of its entry, the said Michael, John and Joseph Betzinger jointly and severally prayed an appeal to this Appellate Court, which was allowed “upon the said defendants, or any or either of them, or any number of them,” filing an appeal bond in the sum of $200, with surety to be approved by the court, within 20> days, and each was given time within which to file a bill of exceptions. It was proper for the appeal to be taken to this Appellate Court, as a freehold is not involved. (Richie v. Cox, 188 Ill. 276, 278; Wachsmuth v. Penn Mut. Life Ins. Co., 231 Ill. 29, 31.)

The record does not disclose that any bill of exceptions or certificate of evidence was filed. A short record, consisting of said order together with the allowance of the appeal, the bond of Michael and Joseph Betzinger, in the sum of $200, with surety (filed in the probate court on November 28, 1924), the order approving the bond, and various assignments of errors, were filed in this Appellate Court on the 2nd day of the March, 1925, term, and appellants were given additional time within which to file a supplemental record, and the same thereafter was filed. Evidently through inadvertence or mistake of the clerk of the probate court, a certain order entered by that court on November 13, 1924 (the 20th day after the entry of the order in question) was not included in either record. By that order the probate court extended the time within which appellants might file their appeal bond for an additional 20 days, and the bond was filed and approved within the time as extended. On appellant’s motion, suggesting a diminution of the record, a transcript of the order of November 13, duly certified, was here filed on October 28, 1925, and is now a part of the record. Previous to its filing appellee moved to dismiss the appeal on two grounds, viz.: (1) failure to file appeal bond in the probate court by November 13, and (2) want of properly authenticated records. The motion was denied. As to the first ground, the filing of said transcript of the order of November 13 shows it to be without merit. As to the second ground, while the clerk’s certificates to the short record and to the .supplemental record do not disclose that they form a complete record, we think that the record as filed is sufficient for a determination of some of the errors assigned and “to fully and fairly present the questions involved.” (Thomas v. O’Brien Lumber Co., 185 Ill. 374, 376.)

On the merits of the case, three of the errors assigned are:

“The findings and decree of the trial court are contrary to law.
“The court erred in directing that the premises described in the decree as Parcel No. 1 (the 12 acres) be first sold to pay the debts, etc.
“The court should have decreed that the premises described in the decree as Parcel No-. 2 (the Glencoe lots) be first sold to pay said debts, etc.”

It appears that the testator, Elias Betzinger, died seized of the three parcels of real estate and that he left no personal estate. By the first clause of his will he directed the executrix to pay all his debts, and by the second clause he bequeathed to his wife (the executrix) all his personal property. By the third clause he specifically devised to his wife Parcel No. 3 (the 2y2 acres improved with a building, which had been occupied by him and his family as a homestead). By the fourth clause he specifically devised to appellants and the other heirs Parcel No. 1 (the 12 acres adjoining the homestead), and in said fourth clause there are provisions that his wife “shall take no share or interest therein,” and that appellants and said other heirs shall take said parcel “free and clear of all rights of homestead and dower of my said wife.” Parcel No. 2 (the Glencoe lots) is not specifically mentioned in the will, but by the fifth clause thereof “all the rest and residue of my real and personal property” is devised and bequeathed to his wife, “her heirs and assigns forever.” It further appears that the widow did not renounce the will.

In 40 Cyc., p. 1570, it is said: “The words ‘rest and residue,’ in the absence of language showing a contrary intention, mean the estate remaining after the payment of charges, debts, and particular legacies, including the payment of any statutory allowance fixed by the court for the temporary maintenance of the widow and received by her for that purpose.” (See also 4 Words and Phrases, 2nd series, p. 352; Gould v. Winthrop, 5 R. I. 319, 324; McMullin v. Brown, 2 Hill. Eq. (So. Car.) 457, 462; Smullin v. Wharton, 86 Neb. 553, 561; Phelps v. Robbins, 40 Conn. 250, 264; Shaw v. M’Cameron, 11 Serg. & R. (Pa.) 252, 254; Bennett’s Estate, 148 Pa. St. 139, 141; Pyott’s Estate, 160 Pa. St. 441, 447.) In 40 Cyc., p. 2067, it is said: “Property constituting the residuum of a testator’s estate and disposed of by the residuary clause in his will is to be first applied in payment of his debts.” (See also Hattersley v. Bissett, 52 N. J. Eq. 693, 695-6; Bergman v. Bogda, 46 Ill. App. 351, 358-9; Pace v. Pace, 271 Ill. 114, 120.) In the Bergman case, this Appellate Court said: “Turning now to the title of Wilhelmina Griese; put in evidence by appellant, we find that the first, the primary direction of the will of Johann Griese, is, that all his just debts, etc., be paid by his executrix, Wilhelmina Griese, and that it is only the ‘rest, residue and remainder’ of his estate which is given to her. Whenever a testator directs, first, that his debts shall be paid, such direction amounts to a charge of the debts upon the real estate in all cases where the real estate' is afterwards disposed of by the will. * * * So, too, when an executor is directed to pay debts, and real estate is devised to him, either personally or as executor, the land so devised is charged. * * * it is difficult to see how a devise of the ‘rest, residue and remainder’ of an estate can be thought to be otherwise than subject to all that has gone before; in other words, to be a mere residuum. The premises in controversy were clearly charged with the payment of the testator’s debts; the charge thus imposed was one which it was the duty of the executrix to remove; equitably she took only what would remain after the payment of debts, etc.” In the Pace case (271 Ill. p. 120) it is said: “As a general rule, residuary legatees and devisees take what is left, and their legacies and devises abate before specific devises.”

In section 76 of our Administration Act (Cahill’s Stat. 1923, p. 85) it is provided that “the right of a widow to her award shall in no case be affected by her renouncing or failing to renounce the benefit of the provisions made for her in the will of her husband, or otherwise.” In the present case petitioner, as widow, is to be regarded “as a creditor to the extent of her separate allowance,” viz., the award made to her of $2,000, for her support and that of the minor child, and, there being no personal property, is entitled “to have real estate sold for its payment.” (Deltzer v. Scheuster, 37 Ill. 301, 304.) And the question is, which parcel (Parcel No. 1, devised to appellants and the other heirs, or Parcel No. 2, devised to petitioner, as wife, in the residuary clause) is to be sold first, for the purpose of getting the funds with which to pay said award and the proven claims of $143? Counsel for appellee contend that the probate court was right in ordering that said Parcel No. 1 be sold first and at the same time ordering that, upon distribution, the court, after ascertaining the comparative value of the real estate devised to petitioner and that devised to appellants and the other heirs, will “apportion the indebtedness of said estate, including the widow’s award allowed, according to the respective values of the property devised,” and that in said apportionment Parcel No. 3 (the homestead devised to petitioner) “is not to be considered”; and counsel, in support of their contention, particularly rely upon the decision in Deltzer v. Scheuster, supra. In that case it appears that the testator left a widow and two minor children, devising a certain lot of land to the widow and certain other lots to the children; that the personal property had been valued at $151.50 and that the county court had allowed $740.50 to the widow as her separate estate; that the widow qualified as executrix and did not renounce the will; that, as executrix, she procured an order for the sale of the lots devised to the children, in order to raise a fund for the payment of her allowance and a small indebtedness found against the estate; that thereupon the children filed a bill in the circuit court to enjoin the executrix from making the sale; and that on the hearing the circuit court entered a decree, making the injunction perpetual. Our Supreme Court reversed the decree holding in substance that, while complainants (the children) were entitled to relief, the decree went too far, and that, while the county court erred in directing that the fund should be raised exclusively from the real estate devised to the children, still, equality being equity, the burden should be equally borne. And the Supreme Court (p. 305) directed that “the court below will ascertain the comparative value of the real estate within its jurisdiction devised to the widow, and that devised to the children, and apportion the indebtedness of the estate, including the widow’s allowance, according to the respective values of the property devised.”

We do not think that the holding in the Deliser case is decisive of the correctness of the decree in the present case, where the provisions of the will are so materially different. In the Deltser case a certain parcel of land was specifically devised to the widow and certain other parcels of land were specifically devised to the children. It does not appear that any parcel was devised to the widow by a residuary clause of the will. In the present case, by the testator’s will, Parcel No. 3 (the homestead) first is specifically devised to the widow, then follows the specific devise to appellants and the other heirs of Parcel No. 1 (the 12 acres adjoining). Provision thereby is made for the widow and for the heirs; and then by the residuary clause “all the rest and residue” of the testator’s real and personal estate is devised and bequeathed to the widow. In view of the above-mentioned statements of the textbook writers in 40 Oye., and of the decisions in the cases, above cited under said statements, we think it must be held that it was the evident intention of the testator under the present will that, in the event it became necessary to sell any of the real estate that he died seized of, Parcel No. 2 (not specifically devised but included in said residuary clause) should be sold first to satisfy claims against the estate, including said widow’s award, and that the probate court erred in its decree in ordering that said Parcel No, 1 (devised to the heirs) should be sold first, and upon distribution that the apportionment mentioned should be made. It seems to us that to first sell Parcel No, 1 (the only parcel devised to appellants and the other heirs) when another parcel was devised to the widow and there was also devised to her by the residuary clause still another parcel, would be inequitable, against the current of authority, and would defeat the evident intention of the testator as expressed in the will.

The record discloses that one of the defendants to the petition was Alfred Lorenz, that he entered his appearance but was defaulted "for want of an answer. One of the findings of the decree is that Parcel No. 2 “is occupied by Alfred Lorenz, as a tenant from month to month under an agreement to purchase same,” but the record is silent as to the particulars of that agreement, viz., the date when made, with whom made, the price, terms, etc., and as to when the testator acquired said parcel, whether before or after the execution of his will (March 4, 1907). In 40 Cyc., p. 1878, it is said: “A devise of land owned by the testator at the time of executing the will is regarded as specific, whether the land is given by specific description or passes under the residuary clause. But land acquired by the testator after the execution of the will goes to the devisee as a general devise, unless the property is so described in the will as to admit of identification.” (See Kelly v. Richardson, 100 Ala. 584; Hays v. Jackson, 6 Mass. 149.) In 40 Cyc., p. 1541, it is said: “A general devise of lands carries the legal estate in lands which the testator has contracted to sell, together with the title to purchase money notes given therefor.” (See Heirs of Wright v. Minshall, 72 Ill. 584; Covey v. Dinsmoor, 226 Ill. 438.) In Beemer v. Beemer, 252 Ill. 452, 464, it is decided that, where a testator devised to a daughter a tract of land that he had contracted to sell to a third person, said testator, by that devise, “made it certain that in the event the purchaser failed to perform, the land would go to his daughter, and in the event the contract was fulfilled and the purchase price paid she would then receive the proceeds.”

Our conclusion is that the decree of the probate court of October 24, 1924, wherein the court ordered the sale of Parcel No. 1, for the purposes and upon the conditions mentioned, should be reversed and the cause remanded for further proceedings. Owing to the condition of the record no specific directions can be given as to a sale of Parcel No. 2, devised to the widow by the residuary clause of the will, which parcel we hold should be first sold, subject to the existing mortgage thereon, for the payment of said claims and charges against said estate, unless it be shown that said Alfred Lorenz has a binding and unexpired contract for its purchase, which he is desirous of consummating. It may be, for aught this record shows to the contrary, that said Lorenz failed to comply with his contract within the prescribed time and has forfeited all rights therein, in which event the court can order the parcel sold for the purposes mentioned. Or it may be that he has performed the contract on his part and paid the purchase money, in which event the proceeds should be charged with the payment of said claims, etc., as far as they will go. In the event that said claims, etc., cannot be fully discharged by said proceeds, the balance should become a charge upon Parcel No. 1, devised to appellants and the other heirs, and (in the event appellants, etc., do not pay said balance) proper proceedings should be taken for its sale to pay said balance, and, upon distribution, said balance be properly apportioned, taking into consideration the respective values of Parcel No. 1 and Parcel No. 3.

The order or decree appealed from is reversed and the cause is remanded for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded with directions.

Barnes, P. J., and Fitch, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Thomson

license: Public Domain

text:
    Pere Marquette Railroad Company, Plaintiff in Error, v. American Coal & Supply Company, Defendant in Error.
    Gen. No. 30,023.
    1. Carriers — liability of consignee ordering reconsignment en route, for freight charges, to original destination. The consignee of a shipment who, while the same is en route, orders its reconsignment to a point other than the original destination, does not, by such act, exercise such constructive ownership over the shipment as to render him liable to the carrier for the freight charges on such shipment to the original destination thereof.
    2. Carriers — liability of consignee ordering reconsignment to third person, and thence' to himself at another destination, for freight charges from, original destination to second and thence to third destination. Where the consignee of a shipment, after having directed reconsignment thereof to a new destination and consignee, upon receiving notice that such new consignee will not accept the shipment gives a new order of consignment to himself at a third destination, he thereby renders himself liable to the carrier for the freight charges from the original destination of the shipment to the second designated destination, and thence to the final destination, and for intervening demurrage charges.
    Error by plaintiff to the Municipal Court of Chicago; the Hon. Laurence B. Jacobs, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Reversed and cause remanded.
    Opinion filed December 23, 1925.
    Rehearing denied January 4, 1926.
    Glennon, Cary, Walker and Murray, for plaintiff in error; L. Beers-Jones, of counsel.
    Edward D. Pomeroy and Henry T. Martin, for defendant in error.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.

By this writ of error the plaintiff seeks to reverse a judgment of the municipal court of Chicago, finding the issues against the plaintiff and dismissing its suit. For the most part, the facts involved were stipulated. From such stipulation it appears that the Green County Fourth Vein Coal Company shipped certain cars of coal from Midland, Indiana, consigned to the defendant at Chicago, over the Chicago, Indiana & Louisville Railway Company; that while the coal was in transit the defendant, consignee, reconsigned it to the Republic Motor Company at Alma., Michigan. Pursuant to the reconsignment orders, the coal was forwarded over the plaintiff railroad to the Republic Motor Company at Alma, Michigan, but before it arrived at that destination, the, motor company advised the defendant that it could not receive the coal and the defendant consignee reconsigned the coal to itself at Saginaw, Michigan. It further appears from the stipulation that upon the arrival of the coal at Saginaw the defendant’s agent was duly notified and he inspected the cars and rejected them. After certain demurrage charges had accrued against these cars, at Saginaw, and such charges as well as the freight charges remained unpaid, the coal was sold by the plaintiff railroad company. The plaintiff railroad sued the defendant consignee for the freight charges from the point of shipment, in Indiana, to Saginaw, and the demur-rage charges, less $200 realized from the sale of the coal. The amount of the plaintiff’s claim was $784.24.

In support of its writ of error the plaintiff presents an argument separated into two parts. The first part deals with the liability of the defendant, for freight charges on the coal in question from Midland, Indiana, to Alma, Michigan; and the second part deals with the liability of the defendant for freight charges from Alma, Michigan to Saginaw, Michigan. In. our opinion, this is not a logical separation of the liability, if it may be separated into two parts in this manner. We shall first consider the liability of the defendant for the freight charges on this coal from Midland, Indiana to Chicago, the original point of destination, or to the point of original diversion on the order of the defendant, after which we shall consider the liability of the defendant for the freight charges beyond that point.

The plaintiff railroad company contends that a consignee who is the owner or the presumptive owner of goods shipped, and who accepts the goods, is liable upon an implied promise to pay the freight charges, citing in support of that contention: Jackson v. Piowaty & Sons, 205 Ill. App. 329; Elgin, J. & E. R. Co. v. Rockwell Lime Co., 213 Ill. App. 25; Pittsburg, C., C. & St. L. Ry. Co. v. Fink, 250 U. S. 577; New York Cent. & H. River R. Co. v. York & Whitney Co., 256 U. S. 407. In each one of these cases the defendant consignee accepted delivery of the goods from the carrier, together with a bill for the freight charges due the carrier, and either at the time, or shortly thereafter, paid those charges, and the lawsuits involved were by the carriers for additional freight charges which had been omitted from the first freight bills through error; and it was held in each of the cases that the defendant was liable. These decisions no doubt apply the law correctly to the situations there presented. In the case at bar, however, the consignee to whom the coal was consigned at Chicago did not accept the delivery of the coal there and pay part of the freight charges then earned by the carrier, but while the coal was en route to Chicago and before it reached that point, it gave the carrier reconsignment orders directing that the coal be delivered to the Republic Motor Truck Company at Alma, Michigan.

It is the plaintiff’s further contention that an original consignee who reconsigns the goods shipped thereby constructively accepts the shipment and is liable for the freight charges thereon, under an implied promise to pay them, within the scope of the rule above mentioned, which would be applicable if the original consignee had actually received the goods. In support of that contention the plaintiff relies on Chicago, I. L. R. Co. v. Monarch Lumber Co., 202 Ill. App. 20; New York Cent. R. Co. v. Platt & Brahm Coal Co., 236 Ill. App. 150, and New York Cent. R. Co. v. Warren-Ross Lumber Co., 234 N. Y. 261. In the Monarch Lumber Co. case, another division of this court held that an instruction in which the court told the jury that where a consignee accepts a shipment consigned to him, he then becomes liable to pay the carrier the legal transportation charges which have accrued, and further, that it is not necessary that the shipment be physically delivered to the consignee to bind the latter for the charges but that an acceptance may be shown by the action or conduct of the consignee, in giving orders to have the shipment delivered to some other person, was a correct statement of the law. That case involved a shipment of lumber to the defendant at Michigan City, Indiana. The defendant reconsigned the lumber to the Haskell & Barker Car Company at Michigan City. The latter company refused to accept the shipment and the defendant then reconsigned it to itself at Chicago. It does not appear whether the defendant received the lumber at Chicago or not. We presume, however, that it did for the court relies, in its opinion, on St. Louis Southwestern Ry. Co. v. Gramling, 97 Ark. 353, 133 S. W. 1129; Pennsylvania Ry. Co. v. Titus, 216 N. Y. 17, and Union Pac. R. Co. v. American Smelting & Refining Co., 202 Fed. 720, and in all three of those cases the consignments of goods in question were delivered to the various defendants and accepted by them.

The Platt & Brahm Coal Co. case, decided by the Second Division of. this court, involved a shipment of coal from Prairie, Hlinois, consigned to the defendant at Chicago, via the East St. Louis & Suburban Railroad and the Chicago & Alton Railroad. This coal had been purchased by the defendant from the consignor at a price which was f.o.b. the mines, at Prairie, Illinois. While the car was en route to Chicago the defendant gave the Chicago & Alton Railroad a reconsignment order, directing that the coal be forwarded to the Dean Fuel &> Supply Company at Jackson, Michigan, via the plaintiff railroad. This written order of reconsignment contained the words “charges follow” and “protect through rate.” This reconsignment order was given by the defendant pursuant to an order they had received from the Dean Fuel & Supply Company, for coal to be shipped to it at Jackson, at a stipulated price, f.o.b. the mines. The coal was delivered to the ultimate consignee at Jackson, and in collecting the freight charges from that consignee the plaintiff railroad neglected to include the charges of the East St. Louis & Suburban Railroad, because these charges were not included in the waybill. These charges were afterward paid by the plaintiff railroad company to the East St. Louis & Suburban Railroad, and the plaintiff company then sued the defendant therefor, as the original consignee, and it was held that the defendant was liable to the railroad for those charges, adopting the decision of the New York Court of Appeals, in the case of New York Cent. R. Co. v. Warren-Ross Lumber Co., 234 N. Y. 261, as against the decision of this court in the case of Chicago, I. & S. R. Co. v. D. E. McMillan & Brother Coal Co., 207 Ill. App. 58.

In the Ross Lumber Co. case, 234 N. Y. 261, there was a shipment of lumber consigned to the defendant at Boston, Massachusetts. Before the lumber arrived at Boston, the defendant reconsigned it to the SehieckJohnson Company. It does not appear from the opinion where the company was located. The reconsignment order was addressed to the railroad company and directed delivery of the lumber to the SchieckJohnson Company, “of your city” but there is nothing which indicates what city that was, whether Boston or some other city. The reconsignment order directed the railroad to collect the freight charges from the Schieck-Johns on Company. The railroad delivered the lumber to that company but did not collect the charges and the company later became bankrupt, after which the railroad sued the defendant as the original consignee, to recover the charges in question. In the course of its opinion the court observed that the consignor is ordinarily liable for freight charges, and also that the standard bill of lading provides that the owner or consignee shall pay the freight. The court then stated that this provision in the bill of lading imposes no obligation on the carrier to insist upon the payment of freight before delivery to the consignee, for it was not part of the contract between the consignor and the carrier that the latter should collect its bill from the consignee, but that the carrier may forego collection from the consignee and collect from the consignor. The court then went on to say that while no contractual relation exists between the carrier and the consignee, merely by reason of the designation of the latter as consignee, nevertheless, the consignee may become liable for the freight charges when an obligation arises on his part from presumptive ownership, by reason of the acceptance of the goods and the services of the carrier for such charges. In that case there was a bill of lading which designated the defendant as consignee and the court said that that, in itself, was some evidence that it was the owner of the goods shipped, and as that was so, it followed that if the defendant accepted them, as owner, the law implied a promise on ° its part to pay the charges, citing Pittsburg, C., C. & St. L. R. Co. v. Fink, 250 U. S. 577. The court then said that when the defendant consignee addressed the reconsignment order to the plaintiff railroad, directing delivery of the lumber to the Schieck-Johnson Company, without notifying the railroad that it was not the owner, it must be presumed that it was acting as the consignee of the lumber. The court then said: “It follows that it accepted the goods by an act of ownership when it exercised dominion over them by giving directions for their delivery and the plaintiff was justified in treating it as the owner of the goods.” In support of that proposition the New York court cites the earlier case of Pennsylvania Ry. Co. v. Titus, 216 N. Y. 17. In the Titus case the court was not called upon to construe the effect of a reconsignment order. That case involved a shipment of peaches to the defendant as an original consignee. The peaches were delivered and accepted by that consignee and the day following the delivery and acceptance, the freight bill which had been presented by the railroad company was paid by the defendant. An error had been made in computing the bill and later the railroad company demanded an additional payment on the freight. The defendant refused to make that payment. The peaches had been consigned to the defendant by one Franklin, under an agreement to the effect that the defendant should sell them for Franklin’s account and remit the proceeds of the sale to him, less commissions and expenses which included freight. The facts were not known to the railroad prior to the demand it made for the additional freight. In refusing the demand, the defendant represented that it had previously remitted the proceeds of the sale to its principal, deducting commissions and expenses, including the freight charges which it had paid the railroad. The court held that the defendant was liable for the additional freight, saying that the defendant stood in the relation of owner of the peaches, as far as the railroad was concerned, the bills, of lading designating the defendant as the consignee and not disclosing the consignee’s agency or the ownership of Franklin. The court further held that at the time of the delivery, without any notice of the status of the defendant or the interest of Franklin, the railroad had the right, as a matter of law, to consider the consignee as the owner of the peaches; and the consignee in permitting the railroad to so deal with him, agreed, by implication, that he would pay the railroad’s lawful charges for the transporting and delivery of the peaches to him. The court said: “The consignee was the presumptive owner and when he accepted the peaches and had not informed the plaintiff, and the plaintiff did not have knowledge or notice before the delivery that he was a factor or agent and that his acceptance of them would be in that capacity, he, by the acceptance, obligated himself to pay the unpaid legal charges of transportation.”

We are unable to agree with the reasoning laid down by the blew York Court in the Ross Lumber Co. case, apparently to the effect that if the consignee gives the carrier a reconsignment order directing that the goods be delivered to another, it should be held that the reconsignment order is such an act of ownership and exercise of dominion over the goods as will obligate the consignee to pay the freight charges.

In the Platt & Brahm Coal Co. case, decided by the Second Division of this court, the stipulation of facts showed that the sale there involved was a sale f.o.b. the point of shipment, and we do not disagree with the holding in that case to the effect that in that situation the consignee should be held liable to the carrier for the freight charges. Where a carrier sues a consignee for the freight charges and the facts, either stipulated or proven, show that the goods shipped were purchased by the consignee f.o.b. the point of shipment, as in the latter ease, the consignee will be estopped from contesting its liability for the freight, because it has accepted the benefit of the services of the carrier, in transporting the goods, and during all the time such service was being rendered the title to the goods was in the consignee.

While this question of liability of the consignee for freight charges is one which is applicable as between the consignor and the consignee, we are of the opinion that no presumptions should be indulged when the question arises as between the carrier and the consignee, which should alter the consignee’s liability. In other words, goods shipped to a consignee may have been sold f. o. b. point of shipment, or f. o. b. point of destination, and we know of no reason why one situation should be presumed rather than the other, in the absence of any showing on the question. In the case at bar it is not shown, either by the facts stipulated or proven, whether there was any bill of lading in this case, or whether the sale of coal shipped to the consignee was a sale f. o. b. the mines or f. o. b. the point of destination. In such a situation we are of the opinion that the bare facts that the defendant was the consignee of this coal and gave the railroad a reconsignment order while the coal was en route, which changed its destination, and directed its delivery to one other than the original consignee, were not such as to imply an obligation on its part to pay the freight from the mines.

So far as the freight charges from Midland, Indiana, the point of shipment, to Chicago, the point of original destination, or to the point at which the coal was first diverted, are concerned, we adhere to our former decision in Chicago, I. & S. R. Co. v. D. E. McMillan & Brother Coal Co., 207 Ill. App. 58. In that case we said that no authority had been cited to sustain the proposition “that a consignee by merely reconsigning the ear, becomes liable for the freight charges that may have accrued up to that time. The liability of the consignee to pay the freight charges, in the absence of an express agreement, arises where the goods have been accepted by him, knowing that the freight charges are unpaid, and that the carrier looks to him for payment. Union Pac. R. Co. v. American Smelting & Refining Co., 202 Fed. 720; Central R. Co. of New Jersey v. MacCartney, 68 N. J. L. 165; Central of Georgia R. Co. v. Southern Ferro Concrete Co., 193 Ala. 108.” Such a situation does not arise where an original consignee merely gives the carrier a reconsignment order, under such a situation as is disclosed by the facts stipulated in the case at bar. We agree with the decision of Mr. Justice Pitney in the Central R. Co. of New Jersey v. MacCartney, supra, where it was held that “the liability of the consignee to pay to the carrier the freight upon the goods transported, in a case such as here presented, depends not upon any general legal duty resting upon a con- • signee simply because he is a consignee, but upon some agreement or undertaking made on his part.” The court then held that where a consignee accepts delivery of the goods from the carrier, together with a bill for the amount of the freight charges, with knowledge that the carrier is giving up for his benefit a lien upon the goods transported, for the charges so stated, such conduct of the consignee in accepting the goods, standing alone, was sufficient evidence of an implied promise to pay the freight charges.

In our opinion, the fact that an original consignee reconsigns the goods shipped and that the railroad complies with the order, is no indication either actual or constructive, that the railroad is looking to the consignee for the payment of the freight, or that the railroad is giving up the lien it has upon the goods, for the amount of the freight charges. Of course it may not be said that the railroad is giving up that lien for it is retaining possession of the goods and is still in a position to enforce the lien unless the freight is paid. We are therefore of the opinion that the act of the consignee in reconsigning the coal in question to Alma, Michigan, may not be said to be such a constructive act of ownership as to make the defendant liable for the freight charges to Chicago, the original point of consignment, or to the point where the coal was first diverted.

We now come to consider the liability of the defendant consignee for the freight charges for that part of the movement of this coal from Chicago, the original destination or from the point of first reconsignment, to the point of ultimate destination. In our opinion, the contention of the plaintiff; railroad to the effect that the defendant consignee must be considered, as to that part of the movement, as occupying the position of consignor, is sound. A consignor is liable for both freight and demurrage charges, where a shipment is refused by a consignee, even though the consignor has designated himself as the consignee. Jelks v. Philadelphia & Reading Ry. Co., 14 Ga. App. 96, 80 S. E. 216; Baltimore & O. R. Co. v. Luella Coal Co., 74 W. Va. 289, 81 S. E. 1044; Atchison, T. & S. F. Ry. Co. v. F. H. Stannard & Co., 99 Kan. 720. While the court does not say so specifically, in Chicago, I. & L. R. Co. v. Monarch Lumber Co., 202 Ill. App. 20, presumably they treated the original consignee in that case as a consignor, so far as the freight charges were concerned, for the movement of the lumber involved in that case from Michigan City to Chicago. That an original consignor is relieved of liability beyond the designated point of destination, in case such point of destination is changed by the consignee, wasi held in New York Cent. R. Co. v. Gardner (In re O’Gara Coal Co.), 294 Fed. 89. In the case at bar the consignor having incurred a liability to the carrier for freight charges involving the movement of the coal from Midland, Indiana, to Chicago, may not be burdened with a further liability merely by the execution of reconsignment orders given the carrier by the consignee, for a movement of the coal beyond that point. Such being the case, if the consignee chooses to direct a movement beyond that point of original destination, we are of the opinion that he must be considered liable for the charges involved in such movement, and if he chooses to divert the shipment while en route to its original destination, and before arrival at that point, then, in our opinion, he should be considered liable for the freight charges involved in all of the movements beyond the point where the shipment leaves its original course, in obedience to the reconsignment order.

From the facts stipulated in the case at bar, it is impossible to determine the proportion of freight charges earned by the carrier up to the point of diversion, for which we hold the consignee would not be liable. If that fact could be ascertained, from the record, we would enter judgment for the plaintiff in this court for the balance. But as we cannot determine that amount, it will be necessary to remand the cause.

. For the reasons stated, the judgment of the municipal court is reversed and the cause is remanded to that court for a new trial.

Judgment reversed and cause remanded.

0 ’Connor and Taylor, 33., concur.


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    American Fruit Growers, Inc., of Illinois, trading as Crutchfield, Woolfolk & Glore (corporation), Appellant, v. San Antonio and Aransas Pass Railway Company, Appellee.
    Gen. No. 30,040.
    1. Carriers — applicability of Carmack Amendment. The liability of a carrier for damages due to delay in the transportation of goods moving in interstate commerce is governed by the provisions of the Carmack Amendment.
    2. Carreers — necessity of introducing bill of lading shown to have been issued. Where the record in an action against a carrier for damages due to delay of a shipment shows that a bill of lading covering the shipment was issued toy the carrier, the plaintiff may not recover if he fails to introduce such bill of lading in evidence.
    3. Carriers — liability where shipment accepted without issuance of bill of lading. Where a carrier undertakes the transportation of goods upon an oral agreement, and no bill of lading is issued covering such shipment, such carrier may be liable for negligence resulting in delay in the transportation and consequent damage to the goods shipped.
    4. Carriers — want of bill of lading as defense where no issue raised as to nature of shipping contract. Where a shipper, suing for damages for delay in transporting a shipment of goods, declares upon an alleged oral agreement covering such shipment, and no issue is made by the carrier, in its affidavit of merits, touching the nature of the agreement, the carrier may not successfully contend that the plaintiff may not recover in the absence of a bill of lading.
    5. Carriers — declaration stating elements of tort action as stating cause of action upon contract. Where the declaration in an action by a shipper against a carrier in substance alleged a promise toy the carrier to transport certain goods from one named point to another, within a reasonable time, and a negligent failure of such carrier to so transport such goods, whereby plaintiff was damaged, such declaration, while containing the elements of both a tort action and one upon contract, plainly stated a cause of action based upon the alleged, promise.
    6. Carriers — burden of proof as to nature of shipping contract in action declaring upon alleged agreement. Where the plaintiff in an action against a carrier for damages from delay in transporting a shipment bases his action upon an alleged promise of the carrier to transport such goods within a reasonable time, and the defendant enters a plea of non assumpsit, the plaintiff has the burden of proving that the defendant did promise as alleged in the declaration.
    7. Carriers — hill of lading, or secondary proof thereof, as evidence of carrier’s contract. Proof that a carrier undertook, as alleged in the declaration of a shipper seeking damages for delay of a shipment, to transport such shipment within a reasonable time, may be properly made only by introducing in evidence the bill of lading or by accounting for its absence, and, in that event, by making proper secondary proof.
    8. Carriers — necessity of proof of lawful ownership of hill of lading. The plaintiff in an action against a carrier for damages for failure to transport a shipment moving in interstate commerce within a reasonable time may not recover unless he proves that he is the lawful owner of the bills of lading under which it was shown the shipment moved.
    9. Carriers — plea of non assumpsit to declaration on contract of shipment as raising issues as to existence and ownership of hill of lading. Where the plaintiff in an action against a carrier for damages due to delay in transporting a shipment moving in interstate commerce alleged in the declaration a promise by defendant to transport the shipment within a reasonable time, to which defendant pleaded non assumpsit, defendant was not precluded from contending, on appeal, that plaintiff had failed, to prove the contract set forth in the bill of lading under which the shipment moved, or that it was the lawful holder of such bill, because such matters had not been set up in special pleas.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. James S. Baldwin, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 23, 1925.
    Blum, Blum & DeLaney, for appellant; J. V. DeLaney, of counsel.
    Townley, Wild, Campbell & Clark, for appellee; Charles V. Clark and Frederick D. Carroll, of counsel.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.

The plaintiff brought this action against the defendant railway company to recover damages alleged to have been suffered by reason of the delay in transporting two cars of onions from points in Texas, one car to Kansas City, Missouri, and the other car to Baltimore, Maryland. It was the plaintiff’s contention that there was a decline in the market price of onions at the respective points of destination, during the periods of delay complained of, which caused the losses sued for. The plaintiff also sought, by this action, to recover the value of three crates of onions which had been lost from the car which went to Baltimore, amounting to $16.50. The plaintiff’s declaration consisted of two sets of counts. In the first set of counts the plaintiff alleged that the defendant was a common carrier and that the plaintiff delivered to it, as such, at Laredo, Texas, 460 packages of onions, and in consideration of a certain reward to be paid to the defendant, it promised the plaintiff that it would safely and securely convey the onions from Laredo, Texas, to Kansas City, Missouri, and deliver them to the plaintiff within a reasonable time. Yet, not regarding its promise, the defendant did not convey the onions from Laredo, Texas, to Kansas City, Missouri, nor deliver them to the plaintiff within a reasonable time, but, on the contrary, so negligently conducted itself with respect to the carriage of the onions and their delivery within a reasonable time, that by and through such carelessness and negligence and default of the defendant, the plaintiff suffered the loss sued for. The second set of counts in the plaintiff’s declaration contained similar allegations with reference to 540 crates of onions, making up the shipment to Baltimore, Maryland. The defendant filed a plea of the general issue. A jury was waived and the cause was submitted to the court. The court found the issues for the plaintiff but assessed its damages only at the sum of $16.50, being the value of the three crates of onions lost en route from the car that went to Baltimore. The plaintiff perfected this appeal from that judgment, its contention being that the court erred in failing to award it damages on the alleged loss which the plaintiff contends it suffered by reason of the delay in the transportation of these two shipments.

A number of contentions are presented by the plaintiff in support of its appeal, and these matters are discussed by counsel for both parties in their briefs. In the view we take of this case, it will not be necessary for us to refer to these matters.

The defendant contends that the plaintiff failed to make such proof as entitled it to any recovery in this case, because it failed to introduce in evidence the bills of lading covering the shipments in question. ' The proof shows that the shipments of the two cars of onions originated at the same point, namely, Corpus Christi, Texas, and it further shows that there were bills of lading issued by the defendant covering both of these cars and that the point of destination specified in each bill of lading was Waco, Texas. The plaintiff did not introduce the bills of lading in evidence, nor did it account for its failure to do so. Counsel for the plaintiff states in the brief filed in its behalf in this court, that the plaintiff’s suit was brought against the defendant under the Carmack Amendment to the Interstate Commerce Act. If the defendant was liable to respond in damages on these shipments, that liability was under the provisions of that Act. Where the record shows that a bill of lading has been issued, the shipper may not recover against the carrier if he fails to introduce it in evidence. Kitza v. Oregon Short Line R. Co., 169 Ill. App. 609; Burtless v. Ore gon Short Line R. Co., 180 Ill. App. 249; Finkelstein v. Illinois Cent. R. Co., 198 Ill. App. 75.

In Gemberling v. Grand Trunk Western Ry. Co., 192 Ill. App. 53, this court said that in an action against a carrier to recover damages for the negligent delay of a shipment of goods, the introduction of the bill of lading was not essential to a recovery, citing Gamble-Robinson Commission Co. v. Union Pac. R. Co., 262 Ill. 400. In the Gemberling case, the face of the bill of lading, showing the contract between the parties, was introduced in evidence. In the Gamble-Robinson case the question was whether the railroad was liable for a delay in the transportation of the goods there involved, beyond the point of original destination, and the proof showed that the railroad had not issued a bill of lading covering that part of the transportation. Of course the rule requiring the introduction of the bill of lading in evidence does not apply where the proof shows one was not issued by the carrier. A carrier may be liable for negligence resulting in delay in the transportation and consequent damage to the goods shipped, where the transportation was undertaken on an oral agreement and no bill of lading was issued, and where the shipper sues for damages in such a case, declaring on an oral agreement and no issue is made, on the nature of the agreement by the carrier, in its affidavit of merits, the latter may not successfully contend that the plaintiff may not recover in the absence of a bill of lading. Cochrane v. Chicago Great Western R. Co., 199 Ill. App. 469. These cases, however, do not apply, where the proof shows a bill of lading was issued or where the proof fails to show one was not issued, for, in the absence of inconsistent averments in the pleadings, the presumption is that one was issued as the statute requires. Burtless v. Oregon Short Line R. Co., 180 Ill. App. 249.

But, in response to that contention the plaintiff replies that it did not bring its action for a breach of contract but in tort, based on the negligence of the carrier. An examination of the plaintiff’s declaration shows that its counts all contained both the elements of a tort action and the elements of a contract action. The plaintiff’s action is, from the allegations contained in his declaration, plainly based upon the alleged promise or undertaking of the defendant, to carry the goods in question from a point of shipment in one State to a point of destination in another State. The plea of the defendant, which joined the issues on which this case was tried, was a plea of non assumpsit and not such a plea as would have been suitable in replying to a declaration in tort. The plaintiff, having declared on the alleged promise of the defendant, as set forth in the declaration, and the defendant having pleaded “that it did not assume or promise in manner or form as the plaintiff has above thereof complained against it,” the plaintiff has the burden of proving by proper evidence that the defendant did enter into the promise, as alleged in the declaration. If there was a bill of lading, that necessarily constituted the defendant’s promise, and proper proof as to whether the.defendant did enter into the promise, as alleged, may only be properly made by introducing that bill of lading or by accounting for its absence, and, in that event, make proper secondary proof.

Furthermore, the liability of the defendant in this case being governed by the Interstate Commerce Act, the plaintiff could not recover unless it proved that it was the lawful owner of the bills of lading, which the record shows were issued by the defendant on these cars, for the Act provides that suits for any loss, damage or injury, to property transported from a point in one State to a point in another, must be brought by the holder of the bill of lading. Gamble-Robinson Commission Co. v. Union Pac. R. Co., 180 Ill. App. 256, 262 Ill. 400.

The plaintiff in the case at bar attempted to show ■ a number of reconsignments of these cars following the original shipment and it is the contention that these various reconsignment orders were duly delivered, but that they were so negligently executed that the goods arrived at the respective points of ultimate destination, after unreasonable delays. The court made appropriate findings of fact that the plaintiff had failed to establish those contentions. "Whether the proof was such as to warrant those findings is, in our opinion, not material, for the reasons above stated.

It is the plaintiff’s contention that the defendant is not in a position to make the point in this court that the plaintiff failed to prove the contract set forth in the bill of lading or that the plaintiff was the lawful holder of the bill of lading, because the defendant failed to set up those matters in special pleas. In our opinion, that argument is not sound. The declaration specifically alleged that the defendant accepted these shipments from the plaintiff and promised to transport them, as set out in the declaration. The plea of the defendant said, in effect, that it did not so promise to the plaintiff. That was sufficient.

For the reasons stated the judgment of the circuit court is affirmed.

Judgment affirmed.

Taylor and O’Cobbor, JJ., concur.


text:
    Woodlawn Trust & Savings Bank, Appellee, v. John Donaho, Appellant.
    Gen. No. 30,059.
    1. Municipal courts — discretion of court to refuse leave to file interrogatories and rule for answer. Where the defendant in an action to recover the amount of a check issued, by defendant, on which defendant had stopped payment after plaintiff had cashed it, presented a motion after pleadings were filed asking leave to file forty interrogatories and a rule upon plaintiff to answer them, it was not error for the court to deny such motion, although the interrogatories touched many matters which would have been proper subject of inquiries through witnesses in the course of the trial, , since it was not an abuse of the discretion of the court to hold that interrogatories to such an extent went beyond the intendment of the governing provision of the Municipal Court Act, Cahill’s St. ch. 37, If 420..
    2. Negotiable instruments — "burden of proof as to forgery of indorsement of check on which payment stopped, as between holder andi maker. Where the defendant in an action by a bank to recover the amount of a check issued by defendant, on which defendant had stopped payment after plaintiff had cashed it, alleged in a sworn affidavit that the indorsement placed upon the check before it was presented to plaintiff was a forgery, the burden of proof as to the issue of forgery so raised was upon defendant.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. William E. Hblander, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 23, 1925.
    Peden, Graydon, Kahn & Murphy, for appellant; Gerald Ryan, of counsel.
    Langworthy, Stevens & McKeag and Hill & Pedderson, for appellee; Frank C. Hill, of counsel.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.

By this appeal the defendant seeks to reverse a judgment for $300, recovered against him by the plaintiff bank in the municipal court of Chicago.

It appears* from the record that one Mitchell, purporting to represent a concern described as “J. W. Griffith & Co.,” called upon the defendant, Donaho, soliciting his purchase of bonds, and the defendant agreed to purchase, through Mitchell, a certain $500 bond, which Mitchell promised to deliver to the defendant at his office within the following day or two. In part payment for the bond the defendant executed his check for $300, drawn to the order of J. W. Griffith & Company on the Union State Bank of South Chicago, and delivered that check to Mitchell. On the following day this check was presented to the plaintiff bank and at that time it bore the following indorsements:

“J. W. Griffith & Company, per P. A. Maroney.
Samuel A. Porter, P. A. Matchette.”

Following these indorsements were those of the plaintiff bank and the Federal Reserve Bank of Chicago, in which the plaintiff bank deposited the check after cashing it upon presentation to it for that purpose by P. A. Matchette. The defendant, failing to receive the bond he had purchased through Mitchell, stopped payment on his check before it was presented to the bank on which it was drawn. The plaintiff bank, having cashed the check and being unable to collect it from the defendant’s bank, brought this action against the defendant to recover the amount of the check. The defendant filed an affidavit of merits, alleging, among other things, that he had never received the bond, in part payment for which the check had been given, and also that the indorsement of J. W. Griffith & Company on the check was a forgery.

The issues were submitted to the court without a jury and the court made a finding for the plaintiff and entered judgment in its favor, from which the defendant has perfected this appeal.

After the pleadings were filed the defendant presented a motion to the trial court, asking leave to file certain interrogatories and requesting that a rule be entered on the plaintiff to answer them. The interrogatories thus presented were forty-four in number and went into many phases of the situation which would have been proper subject of inquiry through witnesses in the course of the trial. In our opinion, however, the trial court did not err, as the defendant now contends, in denying his motion. It was not an abuse of the discretion resting with the court, on such a motion, to hold that this long list of questions went quite beyond anything contemplated in the section of the Municipal Court Act providing for the filing of interrogatories. (Cahill’s St. ch. 37, ¶ 420.)

The only evidence submitted by the plaintiff on the trial was the testimony of its teller, whn identified the check and testified that when it was presented by Matchette, with the request that it be cashed, the bank cashed it; and of the assistant cashier who testified that no part of it had been paid to the plaintiff bank either by the defendant or the bank on which the check was drawn. The only evidence submitted in behalf of the defendant consisted of his own testimony, to the effect that he drew the check in part payment for the bond, and delivered the check to Mitchell for that purpose, but never received the bond and for that reason he stopped payment on the check three days after its date.

The sole question involved on this appeal, other than the one already referred to, is: Which party had the burden of proof on the issue involving the alleged forgery? The defendant contends that by reason of his affidavit under oath, alleging forgery, the burden was upon the bank to prove good title to the check in it; while the bank contends, on the other hand, that at least prima facie, it was presumed to be a holder in due course, and that notwithstanding the defendant’s pleading under oath, the burden was upon him to overcome that prima facie case, by proving the forgery alleged.

In support of his position the defendant relies upon the cases of Jackson Paper Mfg. Co. v. Commercial Nat. Bank, 199 Ill. 151; Independent Oil Men’s Ass’n v. Ft. Dearborn Nat. Bank, 226 Ill. App. 570, 311 Ill. 278; Pierik v. Mueller, 201 Ill. App. 108; and Bippus v. Vail, 230 Ill. App. 633. The Jackson Paper Mfg. Co. case was a suit by the payee of a check against the drawee bank. The check was drawn to the order of the plaintiff, Jackson Paper Mfg. Co., and was indorsed, “Jackson Paper Mfg. Co., C. A. Jackson, Supt.” The plaintiff contended that Jackson was without any authority to indorse the check. The Supreme Court held that in order to avoid liability in the suit brought by the plaintiff payee, the burden was on the defendant bank to show that Jackson was authorized to indorse the plaintiff’s name on the check.

The case of Independent Oil Men’s Ass’n v. Ft. Dearborn Nat. Bank was a suit by the payee of certain checks against the bank which had credited the amounts of the checks to the account of one of its depositors, who appeared as an indorsee of the checks, which bank in turn had collected the amounts of the various checks from the banks on which they were drawn. It was contended by the plaintiff in that case that the indorsements appearing on each of the checks reading: “Independent Oil Men’s Assn., J. A. Specht, Secy.,” were forgeries, Specht being without authority to indorse the plaintiff’s name on the checks or to cash them. In that case this court, following the Jackson Paper Mfg. Co. case, held that the burden of showing Specht’s authority to indorse the checks was upon the defendant bank. That decision was affirmed by the Supreme Court, that court saying in the course of its opinion, among other things, that the burden was upon the bank to show that Specht had authority to indorse the checks there in question.

In our opinion neither of those cases is in point here. In both of them the suit was by the payee of negotiable paper, in one case against the bank on which the paper was drawn, and in the other1 case against the bank which honored the paper and cashed it. In both cases the rule as to burden of proof was applied in favor of the payee of the paper involved. The case at bar is a suit by the bank which honored the paper and cashed it, against the maker, and the latter seeks to have the rule as to burden of proof applied in his favor, and against the bank which cashed the paper. That being the situation here the plaintiff relies on section 59 of the Negotiable Instrument Law (Cahill’s St. ch. 98, ft 79) which provides that: “Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course. But the last mentioned ride does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title.” This provision of the Negotiable Instrument Law would have no application to the situations presented in either of the two cases above referred to, for in both of those cases the rule as to the burden of proof was applied in favor of the payee of the checks and he was not a party who became bound on those instruments prior to the acquisition; of the defective titles which were alleged to have come into existence. In the case at bar, on the other hand, the rule as to burden of proof is sought to be applied in favor of the maker of a check who did become bound on it prior to the acquisition of the defect in the title which he alleges came into existence by the forged indorsement of J. W. Griffith & Company.

The last sentence of the section of the statute referred to above is in the nature of an exception to an exception to the general rule announced in the first sentence of the section. 'The first sentence of the section states that every holder of commercial paper will be presumed prima facie to be a holder in due course. The section then states, an exception to that general rule to the effect that a holder may not be considered prima facie to be a holder in due course, but will have the burden of proving, in effect, that he is such, when it is “shown” — not when it is “alleged” — that the title of any person who has negotiated the instrument prior to his acquiring it was defective. After setting forth that exception to the general rule the last sentence then proceeds to state an exception to that exception, by saying that the rule announced in the exception, placing the burden upon the holder under the circumstance there recited, may not be applied .in favor of any party who has become bound on the instrument prior to the acquisition of the alleged defective title. In our opinion, the situation presented in the case at bar comes within the exception to the exception to the general rule, which is laid down in the last sentence of the section of the statute referred to. The defendant, Donaho, admits that he signed the check and delivered it, drawn to the order of J. W. Griffith & Company, but that after having done so the indorsement of the payee, of the check was forged. Clearly,"he became bound on the instrument prior to the acquisition of defective title through that forged indorsement. Under the provisions of this section of the act, the rule placing the burden of proof on the holder, to establish that he is in fact the holder in due course, may not be applied in favor of the defendant.

Bippus v. Vail was a suit by the indorsee of a promissory note against the maker. The note had been drawn to the order of one Jones and purported to be indorsed by him. In that case the defendant filed a verified special plea, setting up that the note was not executed by him. The sole question presented to this court in that case was whether or not the plaintiff was required to submit some proof on the proposition of delivery of the note, in order to make out a prima facie case, and this court held that he did. The plaintiff in that case relied upon section 16 of the Negotiable Instrument Law (Cahill’s St. ch. 98, ft 36), providing that where the instrument is in the hands of a holder in due course, a valid delivery thereof by all parties prior to him so as to make them liable to bim will be conclusively presumed, and where it is no longer in the possession of a party whose signature appears thereon, delivery by him will be presumed, until the contrary is proved. The defendant, on the other hand, relied on section 52 of the Practice Act (Cahill’s St. ch. 110, 52), providing that no person shall be permitted to deny the execution or the assignment of any instrument in writing on the trial of a case involving such an instrument, unless the party so denying such execution or, assignment shall verify his plea by affidavit. In the course of our opinion in that case this court pointed out that the proposition involved in section 52 of the Practice Act had been the law of this State since 1827, it first appearing as a part of section 12, of an “Act concerning practice in courts of law,” approved in January of that year. We also pointed out that the proposition involved in section 16 of the Negotiable Instruments Law was but a restatement of the general rule to that effect, as it existed long prior to the enactment of that law, and that when the rule laid down in section 16 was the law, as a part of the Law Merchant, the presumptions therein provided for were considered as destroyed if such matters were expressly denied by the defendant by his verified plea, citing cases.

Further, in our opinion, the case of Bippus v. Vail is not in point in the case at bar. That case involved two general rules, both of them having long been the law of this State. One of the rules provides that where a negotiable instrument is in the hands of a holder in due course, a valid delivery thereof by all parties prior to him shall be conclusively presumed, and when the instrument" is no longer in the possession of the one whose signature appears upon it, a valid and intentional delivery by him will be presumed until the contrary is proved. We held in that case that the effect of the latter part of the general rule was destroyed by the second general rule, having the effect of placing the burden of showing execution on the plaintiff, where the defendant denied such execution by verified plea. But, in section 59 of the Negotiable Instrument Law (Cahill’s St. ch. 98, 79), the legislature introduced a provision into our law, for the first time, so far as we are able to find — this law having been adopted in 1907 — to the effect that although the prima facie status of a holder in due course may be destroyed, when it is shown that the title of any person who has negotiated the instrument was defective, and the burden will then be upon him to establish that he is a holder in due course, nevertheless, this rule may not be applied in favor of a party who became bound on the instrument prior to the acquisition of such defective title. In including this provision in the Negotiable Instrument Law, our legislature must be considered as having created a specific exception to what had been general rules in our law on this subject in various forms prior to that time, and that specific provision enacted by the legislature as a part of the Negotiable Instrument Law must prevail over those general rules.

The case of Pierik v. Mueller, supra, was a suit involving several pieces of negotiable paper. One was a note for $500, in which the defendant was the maker and the Western States Life Insurance Company was the payee. This note bore a stamp indorsement reading, “Without recourse pay to the order of bearer, Western States Life Insurance Company.” It appears that this note was given by the defendant in payment of a subscription he made to the capital stock of the payee, insurance company, which was being organized, but the organization of this company was never completed and it was merged with another insurance company. The plaintiffs claimed that the note had been indorsed by one Kingsbury, who was one of the promoters and incorporators of the insurance company, and was by him turned over to them in repayment of a cash subscription they had made to the capital stock of the proposed company. Among other pleas the defendant filed a verified plea denying the indorsement of this note. In the course of its opinion the court said: “The plea denying the indorsement of the $500 note placed the burden on appellants (plaintiffs) of proving that the indorsement was made by the corporation.” No reference is made by the court in its opinion to any provisions of the Negotiable Instrument Law and no cases are cited or referred to. It will be seen that in the Pierik case, the court applied the rule, as to burden of proof, on an issue as to the validity of an indorsement raised by verified plea, in favor of the maker of the instrument which was involved in that case, which was applying the rule in favor of a party who became bound on the instrument prior to the acquisition of the alleged defective title. We are of the opinion therefore that the decision was contrary to the provisions of section 59 of the Negotiable Instrument Law.

Another case involving the question of the burden of proof in such a situation as is presented in the case at bar is Nokomis Nat. Bank v. Hendricks, 205 Ill. App. 54, in which it was held that where the title of anyone who negotiates a negotiable instrument is shown to be defective, the rule that the burden is upon the holder to prove that he, or some person under whom he claims, acquired title in due course does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title.

It will be seen that the case at bar involves in no way the question of who should stand the loss, where a bank cashes a check containing an indorsement which is forged. The question of what the decision in this case should have been, had the defendant proved that the indorsement of J. W. Griffith & Company on his check was forged, as he alleged, is not before us. The sole question is: Did the plaintiff have the burden of proof on that issue? For the reasons we have given, we are of the opinion that it did not, and, therefore, that the proof it submitted made out a prima facie case, contrary to the defendant’s contentions.

For the reasons stated the judgment of the municipal court is affirmed.

Judgment affirmed.

Taylor and O’Connor, JJ., concur.


author: Mr. Justice O’Connor

text:
    In re Estate of Charles B. Cleveland, Deceased. On appeal of Edward A. Kuharske, Appellant, v. First Trust & Savings Bank, Surviving Executor, Appellee.
    Gen. No. 30,154.
    1. Estates of decedents — appealability of order dismissing claim for want of prosecution. An order of the prohate court dismissing a claim against an estate for want of prosecution is a final and appealable order.

      2. Estates of decedents — jurisdiction of appeal from- order dismissing claim for want of prosecution. Under Cahill’s St. ch. 3, see. 124, and Probate Court Act, sec. 11, |J 341, Cahill’s St. ch. 37, if 341, the circuit court has jurisdiction of an appeal from an order of the probate court dismissing a claim against an estate for want of prosecution.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. Kickham Scandan, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Reversed and remanded.
    Opinion filed December 23, 1925.
    Rehearing denied January 4, 1926.
    Kelly, Burns & Daly, J. E. Goembel and Walter E. Healy, for appellant.
    Early & Early, for appellee; John Early, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Edward A. Kuharske filed his claim in the probate court of Cook county against the estate of Charles B. Cleveland, deceased, in the sum of $39,260. After-wards the matter came on for hearing and the claim was dismissed for want of prosecution. Thereupon the claimant prayed an appeal to the circuit court of Cook county, which was allowed upon him giving bond, in the sum of $250 within twenty days, to be approved by the court. Two days thereafter the bond was filed and approved by the probate court and afterwards the record filed in the clerk’s office of the circuit court. Sometime afterwards a motion was made, in the circuit court, by counsel for the executor of the estate to dismiss the appeal “for want of jurisdiction of said subject-matter.” On December 6, 1924, that motion came on for'hearing before the circuit court, the motion was allowed and the appeal dismissed “for want of jurisdiction” and this appeal followed.

The sole question for decision in this case is whether an appeal will lie from the probate court to the circuit court from an order of the probate court dismissing a claim filed in that court for want of prosecution. The executor contends that the appeal was sought to be taken pursuant to the provision of section 68, chapter 3 of Cahill’s Revised Statutes, and, therefore, it would not lie, because that section authorizes appeals to the circuit court only where claims are allowed or rejected by the probate court and that in the instant case the claim was neither allowed nor rejected, but was dismissed for want of prosecution. In support of this contention section 68 and the cases of Pence v. Pettett, 211 Ill. App. 588; Grier v. Cable, 159 Ill. 29 and Estes v. Chicago Title & Trust Co., 230 Ill. App. 141, are cited. On the other hand, the claimant’s position is that his appeal was properly taken pursuant to the provision of section 68, but if it be held that his appeal did not come within the provisions of that section, it was properly taken pursuant to the provisions of section 124 of the same chapter (sec. 124, chapter 3).

Section 68 provides 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 the 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.” Section 124 of the same chapter is as follows: “Appeals shall be allowed from all judgments, orders or decrees of the county court, in all matters arising under this Act, to the circuit court, in favor of any person who may consider himself aggrieved by any judgment, order or decree of such court, and from the circuit court to the Supreme Court, as in other cases, and bonds with security to be fixed by the county or circuit court, as the case may .be. ’ ’

There is another section of the statute which has not been referred to by either side that we think specifically applies, viz., paragraph 341, sec. 11 of the Act to establish probate courts (chapter 37, sec. 11, ¶ 341, Cahill’s St.); that section is as follows: “Appeals may be taken from the final orders, judgments and decrees of the probate courts to the circuit courts of their respective counties in all matters except in proceedings on the application of executors, administrators, guardians and conservators for the sale of real estate, upon the appellant giving bond and security in such amount and upon such condition as the court shall approve, and upon such appeal the case shall be tried de novo.”

In the case of Estes v. Chicago Title & Trust Co., chiefly relied upon by counsel for the executor, it was held, in effect, that an appeal would not lie from an order of the probate court dismissing a claim for want of prosecution to the circuit court by virtue of section 68, chapter 3, of Cahill’s Revised Statutes. In that case the claim was filed in the probate court of Cook county in the sum of $5,184. When the matter was reached for adjustment in the probate court the claim was dismissed for want of prosecution and immediately an appeal was prayed and allowed to the circuit court of Cook county. In the circuit court, the executor moved that the appeal be dismissed. The motion was denied, the matter heard and the claim allowed for $543. On appeal to this court the judgment of the circuit court was reversed. The court there said:

“It is apparent that the appeal from the probate court to the circuit court was pursuant to the provision of paragraph 69 of chapter 3 of Cahill’s Revised Statutes, which provides for an appeal ‘in all cases of the allowance or rejection of claims.’ The section further provides that ‘such appeals shall be tried de novo in the circuit court.’ The section has been construed in Grier v. Cable, 159 Ill. 29, and Pence v. Pettett, 211 Ill. App. 588.
“We do not think this section of the statute can he so construed as to authorize an appeal from an order of the probate court dismissing a claim for want of prosecution, and we think such appeals ought not to be allowed where, as here, there is no judgment for costs. The court was, therefore, without jurisdiction to hear the claim and the judgment must be reversed. We will add, however, that we have examined the evidence and are of the opinion that upon its merits the judgment could not be permitted to stand.”

In that case the court’s attention was not called to the provisions of section 124, chapter 3 or paragraph 341, sec. 11, chapter 37, above quoted. And an examination of the brief filed on behalf of the executor in that case (no brief having been filed by the claimant) discloses that neither of these sections was referred to in the brief. Moreover, it appears that the court there examined the evidence and found that on the merits the claim should have been disallowed.

In the Grier case, cited in the opinion just referred to and also cited in the brief filed in the instant case on behalf of the executor, the question decided was whether an appeal disallowing a claim filed against the estate of Sarah Lafferty, in the county court of Warren county, should have been prosecuted to the Appellate Court or circuit court, and it was held that the appeal was properly taken to the circuit court.

In the Pence case it was held that appeals from the allowance or rejection of claims by the probate court to the circuit court is governed by section 68 and not by section 124 and section 11 above quoted. So that it appears that the question before us in the instant case, viz., whether an appeal to the circuit court from an order of the probate court dismissing a claim for want of prosecution, was in no way involved or considered in either the Grier or Pence case.

Section 68 of the Administration Act providing for appeals from the probate court to the circuit court is limited to the “allowance or rejection” of claims, while section 124 of the same chapter and section 11 of the Probate Court Act are not so limited. Section 124 provides for the allowance of appeals from “all judgments, orders or decrees” entered by the county or probate court to the circuit court, and section 11 of the Probate Court Act provides that appeals may be taken “from the final orders, judgments and decrees” of the probate courts to the circuit court, except appeals from the sale of real estate. We do not decide whether the appeal before us would lie by virtue of the provisions of section 68 because it is clear that it would lie pursuant to the provisions of section 124, chapter 3 and section 11 of the Probate Court Act. The order of dismissal of the claim by the probate court was a final and appealable order. Mutual Reserve Fund Life Ass’n v. Smith, 169 Ill. 264. And this, too, although there were no costs ordered by the probate court in its order of dismissal for the reason that no costs were incurred by either party.

In the brief filed on behalf of the claimant, it is said that the right of appeal is remedial and that statutes giving such right should be liberally construed. But we think that the reason for this rule is inapplicable to such an appeal as the one before us, for the reason that the record discloses that when the claim was reached for adjustment by the probate court, although the claimant was in court (since it appears that he immediately prayed an appeal upon the dismissal of the claim), he showed no reason why he would not proceed with the matter. The theory of filing claims in the probate court is that the matter will there be heard and adjudicated on its merits and the party who thinks himself aggrieved by the order or judgment of the probate court given an appeal.

But where a claim is reached for adjustment in the probate court and dismissed for want of prosecution, the claimant showing no reason why the matter was not there heard, the statute ought not to be liberally construed which gives the right of appeal, because his action does not appeal to a court of justice. But we must construe the law as we find it and since section 124 and section 11 above quoted authorize appeals from all judgments, orders and decrees of the probate court, we hold that the appeal was properly taken to the circuit court. It follows, therefore, that the order and judgment of the circuit or county court, dismissing the appeal for want of jurisdiction, must be reversed and the matter remanded to that court for a hearing upon the merits.

Reversed and remanded.

Thomson, P. J., and Taylor, J., concur.