author: Mr. Presiding Justice Davis

text:
    In re Estate of James Albert. Shanks, a Minor. In re Petition of Reba Shanks Harris, Appellee, v. The Vermilion County Building Association et al., Appellants.
    Gen. No. 8,899.

      Opinion filed October 10, 1935.
    Charles Troup, of Danville, for appellants.
    Wilbur R Wicks, of Danville, for appellee.
   Mr. Presiding Justice Davis

delivered the opinion of the court.

On August 22, 1933, Eeba Shanks Harris, guardian of James Albert Shanks, a minor, filed her verified petition in the probate court of Vermilion county in which she alleged that on March 15, 1932, she invested $5,000 in the Vermilion County Building Association, which was represented by a certificate of stock issued March 15, 1932, being certificate No. 378, Series 154, Class E, for 50 shares at $100 a share; that the interest on said investment was past due and had not been paid and it represented the entire estate of said minor; that said association had advised petitioner that it was unable to pay the interest upon said investment, or any part thereof, and she is advised that said investment so made by her as aforesaid is an unlawful investment and that she had no right as guardian of said estate to invest said funds as aforesaid, and that said investment was contrary to the provisions of the statute of the State of Illinois.

That petitioner had said funds invested in said association since the year 1924, and that she had used the interest on the same for the support and maintenance of her ward, and is unable to pay the expenses of her ward and to maintain and support and educate him unless the interest is paid; that she did not secure an order of court authorizing said investment, and that it would be for the best interest of her ward that such certificate be canceled and the Vermilion County Building Association be ordered to reimburse petitioner and pay her the amount of the said certificate in full and that she be allowed to reinvest said funds under the proper directions of the court in accordance with the statute in such case made and provided. Petitioner prayed that the court enter an order authorizing and directing her to cancel the shares of stock, as aforesaid, and deliver the certificate to the Vermilion County Building Association upon payment to her of the sum of $5,000, together with lawful interest thereon, and that said Vermilion County Building Association be directed and ordered to reimburse and pay petitioner said sum of $5,000 with interest, which represents trust funds so held by it as aforesaid and belonging to said estate.

The probate court of Vermilion county made and entered an order on said petition, which, after reciting the presentation of the petition and the allegations contained in the same, found that all of the material facts set forth in the petition were true; and further specifically found from an inspection of the record and files in said estate that no order of court was entered at any time authorizing the petitioner, as guardian of said estate, to invest said funds in said association; that the guardian had no lawful right to invest said funds in the building association stock as was done in this case, and that the investment is unlawful and contrary to the provisions of the statute of the State of Illinois; that it would be for the best interest of said estate and of said ward that said certificate of stock be canceled, and that the Vermilion County Building Association be ordered and directed to reimburse the petitioner, as guardian of said estate, in said sum of $5,000.

The court further found that the funds so received by the Vermilion County Building Association from said guardian represent trust funds belonging to said minor, and that said association was holding the same as trustee and that the petitioner was entitled to the relief prayed for in the petition.

The court ordered that said guardian be authorized and directed to cancel said shares of stock, as aforesaid, issued by the Vermilion County Building Association, upon payment to her by said association of the sum of $5,000 with lawful interest and the Vermilion County Building Association and its officers and directors were ordered and directed to cancel said certificate of stock and to pay to Reba Shanks Harris, guardian, said sum of $5,000 immediately, together with lawful interest thereon, which amount represents trust funds belonging to said estate and which are now held by said association and its officers and directors as trustee for said estate.

On September 5, 1933, said Reba Shanks Harris, guardian, filed her verified petition in the probate court of Vermilion county, alleging that on August 22, 1933, she secured an order authorizing and directing her as guardian to cancel certain shares of stock, being paid up stock issued by the Vermilion County Building Association, upon payment to her by said association of $5,000 together with lawful interest; that said Vermilion County Building Association and its officers and directors were ordered and directed in and by said order to cancel said certificate of stock and to pay to petitioner, as guardian, the sum of $5,000 with lawful interest thereon.

She further alleged that said sum of $5,000 so invested in said Vermilion County Building Association represented trust funds placed in said association by the petitioner as guardian, and that said funds were so invested upon the solicitation of certain of the officers of the association, and no order of court was entered at any time authorizing her as such guardian to invest said funds in said association; that said investment so made in said association was made contrary to law, and said association and its officers and directors knew that the funds represented guardian’s funds and that the investment was contrary to the provisions of the statute; and further alleged that said association and its officers and directors neglected and refused to cancel said certificate of stock, and refused to pay petitioner, as guardian, said sum of $5,000 together with lawful interest thereon, or any part thereof, although requested by petitioner so to do; that petitioner is unable to obtain any money whatever from said association although willing and ready and has offered to deliver said certificate to said association for cancellation upon payment to her of the amount represented thereby; that the refusal of the association to cancel such certificate of stock and to pay your petitioner the amount represented thereby is contrary to the provisions of said order and constitutes a contempt of this court, and that, unless said order is obeyed, petitioner has no funds whereby to clothe, educate and support her said ward; that said Vermilion County Building Association and its officers and directors should be cited into court to show cause, if any, why they are not in contempt of court and why said order should not be obeyed.

Petitioner prayed that a citation be issued against the said Vermilion County Building Association and Thomas J. Cossey, its president, E. W. Cass, its vice president, Gr. Haven Stephens, its treasurer, Charles Troup, its attorney, M. L. Coutant, its secretary; and A. E. Dale, John K. Holmes, J. M. Schull, Ben Gf. English, C. F. Barton, Joseph H. Barnhart and H. E. Parker, directors of said corporation, to appear before this court and show cause, if any, why they are not in contempt of the court for their'failure to obey said order as aforesaid, and that the court fix a day for the hearing upon said citation.

The clerk issued a citation directed to the sheriff of said county to serve and directing him to summon the Vermilion County Building Association and the persons named in the prayer of the said petition to be and appear before said probate court at the courthouse in Danville on the 25th day of September, 1933, at 9 o ’clock a. m., to show cause, if any, why they are not in contempt of court for their failure to obey the order of the court entered on the 22nd day of August, 1933, wherein the. Vermilion County Building Association and its officers and directors were ordered and directed to cancel said certificate of stock and to pay Beba Shanks Harris, guardian, the said sum of $5,000 immediately, together with lawful interest thereon, which said writ was duly served by the sheriff of said county upon the persons named therein.

The Vermilion County Building Association entered its special appearance and moved the court to dismiss the petition for citation and the citation proceedings for the following reasons:

1. That this court has no jurisdiction of the person of this respondent.

2. That this court has no jurisdiction of the subject matter of the petition for citation.

3. That the petitioner’s right of action, if any she has, is not in the probate court in such a proceeding as this but is by a plenary action in an ordinary suit • of law.

4. That under the circumstances and facts shown in the petition the probate court is without jurisdiction to try the questions raised by said petition.

A special appearance and motion was filed by the other respondents setting forth the same grounds as were contained in the motion of the Vermilion County Building Association.

On January 9,1934, the court overruled the motions of said respondents. The Vermilion County Building Association and Thomas J. Cossey and others, respondents, answered said petition. The answers of respondents admitted that the persons named in the petition were the president, vice president, treasurer, secretary and attorney of said association, and averred, among other things, that they were not notified of the hearing had by the probate court on the petition of said guardian for an order of the probate court authorizing the guardian to cancel said certificate and withdraw the money value of the same and were not present at said hearing, and were not served with any summons notifying them to be present at said hearing, and had no opportunity to be present and be heard at the hearing on said petition when said order was made by the court.

That the probate court has no jurisdiction in a summary proceeding to require said building association to pay said guardian the amount so originally invested by her in said shares of stock or to enter a judgment against said association for the same; and further averred that the probate court had no jurisdiction of the subject matter of such proceeding.

On July 16,1934, the probate court entered an order in said citation proceeding in which was recited the entry of the order of August 22, 1933, authorizing and directing said guardian to cancel certain shares of stock in the Vermilion County Building Association and directing said association and its officers and directors to cancel said certificate of stock and pay said guardian the sum of $5,000, with lawful interest thereon ; that said association and its officers and directors have not paid said amount as provided by said order; that the facts alleged in said petition are true and that the equities of this cause are with the petitioner, and that the court has full and complete jurisdiction of the parties and the subject matter of this cause, and having heard the testimony of witnesses and being fully advised, finds that- said guardian invested $5,000 in said Vermilion County Building Association, which was represented by a certificate of stock, and that said sum so invested represents trust funds invested in said association by the guardian herein and that no order of court was entered authorizing said guardian to invest said sum in said association; that said investment so made is an illegal investment and is contrary to the provisions of the statute of the State of Illinois; that said association and its officers and directors are holding said funds as trust funds belonging to said estate, and it is necessary for the proper administration of said estate that said funds be returned to the guardian.

The court ordered said association to pay Beba Shanks Harris, guardian, within 20 days the sum of $5,258.07, which amount represents the balance due, including principal of $5,000 with interest thereon after deducting the credits on said investment heretofore paid by said association; that said other respondents, officers, directors and attorney of said association (naming them) take any and all of the necessary steps in order to cause, aid or assist the said association to pay said judgment; that respondents pay the costs in this citation proceeding.

An appeal was taken from the order and judgment of the probate court to the circuit court of Vermilion county. A motion was made by respondents in the circuit court to dismiss the petition for citation on the ground that the probate court had no jurisdiction of the subject matter of the petition for citation and the circuit court on appeal was without jurisdiction. The court overruled this motion and proceeded to hear said cause upon the petition for citation and the answers of respondents thereto, which among other things challenged the jurisdiction of the probate court both as to jurisdiction of the persons and subject matter of the petition for citation.

After reciting the proceedings had in the probate court and finding that it had jurisdiction of the parties and of the subject matter of said cause, and making findings of facts similar to those contained in the order of the probate court, it ordered that Beba Shanks Harris, guardian, do have and recover from the Vermilion County Building Association judgment in the sum of $5,355.92, and ordered said association to pay the same within 20 days from the filing of the order, and also ordered the other respondents to take all necessary steps in order to cause said association to pay the same, and ordered the respondents to pay the costs of said citation proceeding and retained jurisdiction of said cause for the purpose of enforcing said judgment.

It is insisted by appellee that sections 52 and 53 of the Guardian and Ward Act, Cahill’s St. 1933, ch. 64, ¶¶ 54 and 55, give ample authority for the procedure taken in this case. These sections are identical with sections 81 and 82 of the Administration Act and should receive a similar construction.

The remedy given by said sections 81 and 82 is not applicable to the collection of a debt. Hansen v. Swartz, 345 Ill. 609; Johnson v. Nelson, 341 Ill. 119; Sullivan v. Arcola State Bank, 314 Ill. 40. Since the amendment of said section 81 in 1925, the purpose of the section as amended, apart from the recovery of books of account, papers or instruments of title, and the obtaining of information, is to recover possession of specific property, or if converted, its proceeds or value. Johmon v. Nelson, supra. The purpose of sections 52 and 53 of the Guardian and Ward Act is the same.

The Vermilion County Building Association has no specific property in its possession, nor the proceeds or value derived from the conversion of any specific property. Beba Shanks Harris, guardian, purchased the original stock in 1924, and received the certificate therefor dated September 27, 1924, and upon receiving the payment of interest each year a new certificate was issued, the last being issued on March 15, 1932.

It is also claimed by appellee that' Beba Shanks Harris, guardian, was a trustee and that the property of the ward is trust property, and that it was acquired with full knowledge by appellants of the nature of the funds and that the probate court has power to require delivery of property by citation where property involved is trust property.

It also appears from the findings of the circuit court that it rendered judgment against respondents on the theory that trust funds were involved and that respondents had obtained possession thereof knowing that the same were trust funds and that the guardian of said minor had no legal authority to invest in the stock of said association; that it and its officers could be compelled to account for the same and that the probate court of Vermilion county had jurisdiction to compel such accounting.

Although this is an appeal from the circuit court of Vermilion county, entered in an appeal case from the probate court of said county, it might not be out of place to consider the proceedings had in the probate court for the reason that the circuit court on appeal could only exercise such jurisdiction as the probate court had in the subject matter of the litigation. Chapman v. American Surety Co., 261 Ill. 594; Miller v. Miller, 82 Ill. 463; Mostoller v. Gove, 188 Ill. App. 215. On appeal from the probate court the general jurisdictional power of the circuit court is limited and circumscribed to the same jurisdictional subjects as that of the probate court. Howard v. Swift, 356 Ill. 80.

The jurisdiction of probate courts is fixed by section 20, article 6, of the Constitution, and by the act to establish probate courts, approved April 27, 1877, passed in pursuance thereof. The act of April 27, 1877, in providing for the establishment of probate courts conferred jurisdiction on said courts in the exact language of the constitution. People v. Seelye, 146 Ill. 189.

Such courts are given original jurisdiction of all probate matters, settlement of estates of deceased persons, appointment of guardians and conservators and settlements of their accounts; all matters relating to apprentices, and in cases of the sales of real estate of deceased persons for the payment of debts. The jurisdiction is limited by the Constitution to the particular subjects named, and there is no general clause, as there is in respect to county courts, which authorizes the legislature to extend the jurisdiction of probate courts to subjects other than those specifically enumerated. Frackelton v. Masters, 249 Ill. 30; First State Bank of Steger v. Chicago Title S Trust Co., 302 Ill. 77.

Such courts have no general equitable jurisdiction but can only exercise equitable power within the zone conferred by the constitution. Howard v. Swift, supra; In re Estate of Mortenson, 248 Ill. 520; Frackelton v. Masters, 249 Ill. 30; Chapman v. American Surety Co., 261 Ill. 594; Dingman v. Beall, 213 Ill. 238; Hannah v. Meinshausen, 299 Ill. 525.

If sections 52 and 53 of the Guardian and Ward Act give to the probate court power to hear and determine the matter presented by the petition of the guardian filed in this cause on August 22,1933, to find and determine from a consideration of the evidence that the money in question was trust funds held by Beba Shanks Harris, guardian, in trust, that the Vermilion County Building Association was holding the same as trustee, to render judgment therefor, to require the payment of the same to said guardian in 20 days, to declare said association in contempt if it refuse to comply with such order and to punish it for such contempt and compel the payment of said money to said guardian, then said sections confer upon the probate court power that has never been held to exist in a court that does not have general chancery jurisdiction, and would render the act unconstitutional so far as such power is conferred. Any legislative acts which attempt to extend the jurisdiction of probate courts beyond that conferred by the constitution are violative of the constitution. Howard v. Swift, supra. No intention of giving to probate courts general equity jurisdiction can be attributed to the legislature by the enactment of said sections. It is one of the oldest heads of chancery practice to execute and control trusts and trust funds. Hopkins v. Granger, 52 Ill. 504; Maguire v. City of Macomb, 293 Ill. 441.

When the probate court entered the ex parte order on the petition of the guardian, on August 22, 1933, authorizing the guardian to cancel the shares of stock held in the building association and ordering the Vermilion County Building Association and its officers and directors to cancel the certificate of stock and to pay to said guardian $5,000 and interest immediately, it is not even claimed that said association or its officers and directors had any notice of the filing of said petition or of the time fixed for the hearing thereon.

It is a fundamental principle applicable to all proceedings, whether common law, chancery or statutory, that a person must have an opportunity of being heard before a court can render judgment against him. Hansen v. Swartz, 345 Ill, 609, 616; Leininger v. Reichle, 317 Ill. 625.

When the Vermilion County Building Association and other named respondents in said citation writ appeared in the probate court in response thereto and entered their special appearance and moved the court to dismiss the petition for citation and the citation proceedings for the reason that the court had no jurisdiction of the persons of the respondents, nor of the subject matter of the petition, the court should have granted said motion. A judgment or decree entered by a court, in the absence of jurisdiction of the person to be affected thereby or of the subject matter of the litigation, is a nullity.

The probate court not having authority to require respondents to show cause, if any they might have, why they should not be punished for a contempt of that court for a failure to comply with the ex parte order entered on August 22, 1933, for the reason that it neither had jurisdiction of the persons or of the subject matter of said proceeding, it follows that the circuit court is likewise without jurisdiction to compel respondents to show cause, and the judgment entered against them was erroneous.

Neither the probate nor circuit courts had authority to enter an additional judgment against said respondent, the Vermilion County Building Association, in said citation proceeding.

A petitioner, to recover at all, must do so on the case made by the petition, and will not be permitted to state one case in the petition and make a different one by the proofs. Even though the evidence may make a meritorious case, if it is variant from the case made by the petition the petition should be dismissed.

Neither the probate nor circuit court made any finding in relation to the charge of contempt or any order in relation to the enforcement of the order of the probate court, mentioned in the petition of the guardian for citation in the contempt proceedings, and the proof offered does not correspond with the allegations of the petition.

The decree of the circuit court of Vermilion county is reversed and the cause remanded with directions to dismiss said petition for citation.

Reversed and remanded %oith directions.


source: Caselaw Access Project

license: Public Domain

text:
    Illinois Tuberculosis Association, Appellee, v. Springfield Marine Bank, Appellant.
    Gen. No. 8,905.

      Opinion filed October 10, 1935.
    Cassels, Potter & Beetley, of Chicago, and Carl A. Sorlihg, of Spring-field, for appellant; Ralph F. Potter, Leslie H. Vogel and E. Douglas Schwahtes, all of Chicago, of counsel.

      Brown, Hay & Stephens, of Springfield, for appellee; R. Allan Stephens and Robert A. Stephens, Jr., of counsel.
   Mr. Presiding Justice Davis

delivered the opinion of the court.

The Illinois Tuberculosis Association, plaintiff appellee, recovered a judgment in. an action at law against the Springfield Marine Bank, defendant appellant, in the circuit court of Sangamon county, to reverse which defendant prosecutes this appeal.

Plaintiff alleges in its complaint that from January 4, 1933, until February 16, 1934, it deposited with defendant bank more than $26,721.80, and that on the latter date defendant was indebted to it in excess of $3,077.04 and that on demand the defendant refused to pay said sum to plaintiff.

The defendant, the Springfield Marine Bank, answered stating that the amount deposited was $26,121.80 and averred that the said sum of $3,077.04 together with other amounts had been withdrawn prior to November 6, 1933, by checks of plaintiff and that on the dates of plaintiff’s demand the balance was $142.18. By amendment to its answer it is alleged that during the period stated in the complaint the defendant had on or about the first day of each month issued a statement of the account between the parties showing correctly the amount of monies deposited by the plaintiff with the defendant and the amounts of money withdrawn by the plaintiff from its account and that tlie defendant delivered such statements, together with all the checks charged against the plaintiff’s account to the plaintiff on or about the date of the issuance of the statements and that at no time prior to November 6, 1933, did the plaintiff make any complaint or objection to the said statements of account.

The Illinois Tuberculosis Association is a charitable corporation in the State of Illinois, an affiliation of 101 county associations who elect a board of directors of 83, which in turn elects an executive committee or board of 13. The officers consist of a president, treasurer and an executive secretary who is the only salaried officer of the association. The executive office of the association is in Springfield. Dr. Edward S. Murphy was president, George E. Keys was treasurer until September, 1933, when he was succeeded by Dr. J. P. Denby, and W. P. Shahan was executive secretary.

During 1933 the association did their banking business Avith the Springfield Marine Bank and maintained a checking account. All checks that were issued required the signatures of the president, treasurer and executive secretary. The checks were drawn on the Springfield Bank and were first signed by the executive secretary at Springfield and were then mailed to the president who resided in Dixon, Illinois, Avith bills and voucher statements attached, and after being signed by him they were sent by him either to the treasurer Avho resided in Springfield or else back to the Springfield office, and after being signed by the treasurer were mailed or delivered to the payee.

The executive secretary was in charge of the office of the plaintiff and was responsible to the executive board or board of directors. He. employed the help to assist him, which consisted of a personal secretary and office secretary and Joseph. Roscetti Avho was the bookkeeper during 1933. The accounts of the association Avere audited every year covering the fiscal year which was from January 1 to December 31. . The board held executive meetings quarterly.

The checks drawn by plaintiff on its checking account were presented for payment in one of three Avays: By presentation to the paying tellers of whom there were two in the bank at that time, J. P. Rothermel and Oscar Pritchett, by mail and through the clearing house. The checks that, came by mail or through the clearing house went to the central desk and were examined as to signatures by the chief clerk, who up to May, 1933, was George W. Bettinghaus and from then on C. G. Lambert.

Check No. 1966 dated October 31, 1933, for $92.05, payable to W. P. Shahan and signed by him as executive secretary, was mailed to Dr. Murphy and from his office to Dr. Denby and then back to the Springfield office. W. P. Shahan was away at the time on a business trip and when the check was returned to the office it was supposed to have been put in the safe awaiting his return. When the check was not found in the safe and when Roscetti did not appear at work on that day, November 6, Shahan went over to the bank and found the check upon which the name of W. P. Shahan was forged with the name of Joseph Roscetti below that of the name W. P. Shahan. This check had not been charged to the account of the association and payment was stopped on the check.

An audit was made of the books of the association, which was begun on November 6, 1933. This audit covered the period from January 31, 1933, to November 6, 1933. The audit disclosed that there had been about $3,077.04 worth of checks paid by the bank which were not authorized by the association. The audits made of the books for the years 1930, 1931 and 1932, which had been kept by Mr. Roscetti showed that the accounts were in good condition and no irregularities were found by those audits prior to 1933.

The defendant bank during the period that this account was running issued statements to its customers on or about the first of each month, and the statements of the account of plaintiff with the bank were delivered to Mr. Roscetti. The defendant refused to pay the $3,077.04 demanded by plaintiff for the reason that it claimed the balance of plaintiff was only $142.18.

A jury trial was demanded by plaintiff and upon a trial of the cause the jury returned a verdict finding the issues for the plaintiff and assessing its damages at the sum of $4,194.13. A judgment was entered upon the verdict and thereafter and within 10 days an order was entered giving the defendant time within which to file its motion for a new trial and its motion for a judgment notwithstanding the verdict. The court denied the motion of the defendant for a new trial. The motion of defendant for judgment non obstante veredicto, which assigned as reasons the want of evidence to sustain the verdict was overruled by the court.

It is insisted by defendant that its own freedom from negligence and its affirmative defense of estoppel having been established by uncontradicted and undisputed evidence, the trial court erred in refusing to grant its motion for a directed verdict in its favor and in refusing to enter judgment for the defendant notwithstanding the verdict.

The evidence discloses that the chief clerks at the central desk, during the time this account of plaintiff was running, Bettinghaus until May, 1933, and Lambert during the balance of the time, had the general supervision of the bookkeeping of the bank and also had charge of the central desk where all the checks that came by mail or through the clearing house were examined as to being regular on their face and as to signatures. A great number of checks each day were passed upon. Bettinghaus while in charge of the central desk examined from fifteen hundred checks on some days to several thousand on other days, and Lambert while chief clerk examined from five to six thousand checks a day. From the very nature of their duties and the great number of checks passing through their hands every day it appears that not sufficient attention could be given each item. From the number of forged checks that passed them in this account of plaintiff it will be seen that they could not have made the careful examination that defendant insists was made of all checks which come to the bank through the mail or clearing house. The evidence also discloses that'plaintiff’s Exhibit F 117, a genuine check issued by plaintiff, but without the signature of the president, containing only two signatures, was passed by Lambert, a defect that could be instantly detected by an examination of the check.

The evidence also discloses that Joseph Eoscetti had been in the employ of the association for some time. He had charge of the books and assisted generally in making up the bills and vouchers that accompanied the checks, and also typed the checks and after they were signed by the executive secretary he would mail them to the president. The books of the association were audited each year and were found correct at the times the audits were made for the years 1930, 1931 and 1932, years in which Eoscetti was the bookkeeper. The statements of account and canceled checks each month were delivered to Mr. Eoscetti. The board of directors, held quarterly meetings during each year. So far as it appears from the evidence no person other than Eoscetti checked over the bank statements and canceled checks except on the occasions when the books were audited. A corporation can act only through, its officers, agents and employees. All of the forgeries occurred after the audit of the books for the year 1932 was made in January, 1933. The duties of the executive secretary required his absence from his office about 50 per cent of his time.

The defendant in its reply brief admits that it was required to show that it was not negligent in paying forged checks, and states: that is admitted now, was admitted on the trial of the case and in our original brief.

A motion to instruct the jury to find for the defendant is in the nature of a demurrer to the evidence, and thé rule is that the testimony demurred to, together with all reasonable inferences arising therefrom, must be taken most strongly in favor of the plaintiff. McCune v. Reynolds, 288 Ill. 188. It is not the province of the trial judge, on such motion, to weigh the evidence and determine where the preponderance is. Neither the trial court in the first instance, nor the court of review, has anything to do with the question of the preponderance of the evidence or the credibility of the witnesses when considering this question. Geiger v. Geiger, 247 Ill. 629.

In the case of Shannon v. Nightingale, 321 Ill. 168, the court said: “It is a question of law whether there is any evidence tending to prove the allegations of the plaintiff’s declaration, and it is a question of fact, where there is such evidence, whether it is sufficient to sustain such allegations. The former is a question for the court; the latter a question for the jury, subject to revision by the court on motion for a new trial. Therefore the court may not properly take the case from the jury and direct a finding for the defendant when there is some evidence tending to prove every essential allegation of the plaintiff’s declaration, merely because, in the judgment of the court, the weight of the evidence in support of some material allegation is not sufficient to sustain a verdict for the plaintiff. If the evidence in support of the plaintiff’s allegations is sufficient to make a prima facie case, the court is not authorized to direct a verdict for the defendant because of evidence of contrary facts tending to an opposite conclusion. On the motion to direct a verdict only that evidence can be considered which is in favor of the party against whom the motion is directed, and that evidence must be considered in the light most favorable to that party, together with all legitimate inferences which may be drawn from it in his favor.”

In the case of Nelson v. Stutz Chicago Factory Branch, 341 Ill. 387, it is said by our Supreme Court that: “The question of law presented to the court upon a motion at the close of all the evidence is whether, when all the evidence is considered, together with all reasonable inferences from it in its most favorable aspect to the party against whom the motion is directed, there is a total failure to prove a necessary element of his case. ’ ’ The Supreme Court in its opinion in the Nelson case further says: “The contention of the defendant in error is that it is the province of the jury to weigh the testimony of the witnesses, to determine the credibility and weight of the' evidence and give it their belief according to their judgment. In support of this contention she relies upon the case of Shannon v. Nightingale, 321 Ill. 168, in which it is said: ‘If the condition of the evidence at the close of the plaintiff’s case does not justify an instruction for a verdict in favor of the defendant, no evidence which the defendant may introduce will justify such instruction except uncontradicted evidence of an affirmative defense. Evidence contradictory of the plaintiff’s will not do it.’ This language is too unguarded and should be qualified, as should also the statement that ‘the question arising on this motion (to direct the verdict) is whether there is any evidence to sustain the plaintiff’s side of the issue.’ The question is whether there is evidence to sustain every element of the plaintiff’s case necessary to be proved to sustain the cause of action. The other language quoted should be modified by the substitution for the words ‘an affirmative defense’ of the words ‘facts consistent with every fact which thé evidence of the plaintiff tends to prove but showing affirmatively a complete defense.’ ”

The rule as stated in the Nelson case is this: If there is evidence at the close of the plaintiff’s case to sustain every element of his case necessary to be proved to sustain the cause of action, no evidence which the defendant may introduce will justify án instruction for a verdict in his favor except the uncontradicted evidence of facts consistent with every fact which the evidence of the plaintiff tends to prove hut showing affirmatively a complete defense.

At the close of the plaintiff’s case there was evidence to sustain every element of its case necessary to sustain the cause of action. By the evidence introduced the defendant sought to establish its own freedom from negligence and an affirmative defense of estoppel, the evidence to establish which was inconsistent with the facts that the evidence of the plaintiff tends to prove.. The court did not err in refusing to direct a verdict for the defendant.

We are of opinion that the contention that the court erred in not entering a judgment for the defendant, notwithstanding the verdict, is without merit.

At common law, a judgment non obstante veredicto could only he entered when the plea confessed the cause of action and set up matters in avoidance of the cause of action which were, even if true, immaterial and did not constitute a defense to the action. It is a judgment for the plaintiff on the pleadings because the pleas of the defendant do not present a defense. It was only rendered on the application of the plaintiff, and was never allowed on motion of the defendant. Puterbaugh’s Common Law Pleading, sec. 1103.

It is provided however by sec. 68, If (3)a, of the Civil Practice Act, Cahill’s Rev. St. 1933, eh. 110, ff 196, that at the close of the testimony either party may request the court for a directed verdict and that the court can reserve its decision thereon, and submit the case to the jury and after verdict may hear arguments for and against such request and if the court shall decide as a matter of law that the party requesting the directed verdict was entitled thereto, the court shall enter its decision on the record and order judgment in accordance with such decision notwithstanding the verdict. This provision of the Civil Practice Act changes the common law rule and permits either party to move the court for judgment notwithstanding the verdict.

The court in passing upon the motion must decide, as a matter of law, that the party requesting the directed verdict is entitled thereto. This provision of the Civil Practice Act taken in connection with Rule 22 of the Rules of Practice of the Supreme Court which provides: 11 The power of the court to enter judgment notwithstanding the verdict may be exercised in all cases where, under the evidence in the case, it would have been the duty of the court to direct a verdict Avithout submitting the case to the jury,” requires the court to be governed by the same rules in passing upon a motion for a judgment notwithstanding the verdict as govern it in passing upon a motion for a directed verdict. The trial court in passing upon this motion has no more authority to Aveigh and determine controverted questions of fact under the Civil Practice Act than under the Practice Act of 1907. Capelle v. Chicago & N. W. Ry. Co., 280 Ill. App. 471.

The defendant further contends that it was clearly within the scope and course of Roscetti’s employment with the plaintiff to examine the bank statements and canceled checks, and that all knowledge which Roscetti obtained from an examination, or might have obtained by a reasonably adequate examination, Avas the knowledge of the plaintiff; that even if Roscetti had been the forger, the knowledge which he obtained from a reasonable and adequate examination of the statements was Avithin the scope of his employment, although admittedly the commission of the forgery was not, citing Myers v. Southwestern National Bank, 193 Pa. 1, 44 Atl. 280, and other authorities in support of its contention. While there is some conflict in the holdings of the courts, the question has been settled adversely to the contention of the defendant by the Supreme Court of our State. It is held: To the general rule that notice to the agent is notice to the principal there is a well defined exception, that notice will not be imputed to the principal where the facts authorize the inference that the agent will conceal the information. That is the presumption where it would be detrimental to the agent’s interests to disclose the facts. Merchants’ Nat. Bank v. Nichols & Shepard Co., 223 Ill. 41. The facts in this case come within the exception to the rule. Eoscetti had reason to conceal the information that the monthly statements issued by the bank did not show the true balances, as this information would lead to the immediate detection of his forgeries.

Plaintiff insists that the defendant was guilty of negligence in handling the account of the plaintiff and that the law is that where the bank itself is guilty of negligence, particularly in regard to the examination of the depositors’ checks, any negligence of the depositor in examining any statements of account or canceled checks returned to it is immaterial.

While it is true that a depositor of a bank who receives from the bank a statement of his account with the canceled checks for which credit is taken should examine the statement of his account together with the canceled checks and report to- the bank within a reasonable time any errors that may be discovered and if he fails to do so would be.guilty of negligence, yet if the officers of the bank before paying the forged checks failed to exercise due and reasonable care in detecting the forgeries the subsequent negligence of the depositor in failing to perform such duty would constitute no defense.

It was held in the case of National Dredging Co. v. President of Farmers Bank, 6 Pennew. (Del.) 580, 69 Atl. 607, that: “In every ease where suit is brought by a depositor to recover from, a bank money deposited by him, which the bank has paid out otherwise than in conformity with his orders, and the bank sets up the defense that it is nevertheless entitled to charge the depositor with such payments, because of conduct of the depositor subsequent to such payment, the preliminary question to be determined is whether the bank was or was not guilty of negligence in making the payments. If it were negligent, if its officers be found to have failed to exercise due and reasonable care in detecting the forgery or fraud, then the subsequent negligence of the depositor, his failure to perform his duty in examining his pass book and vouchers with reasonable care and report to the bank in a reasonable time any errors or mistakes, would constitute no defense. It is needless to cite cases in which this doctrine is explicitly stated, because they are all in accord upon this point, and the doctrine is assumed in every case where it is not stated.”

In the case of Manufacturers’ Nat. Bank v. Barnes, 65 Ill. 69, in a case where a clerk of the firm had been authorized by power of attorney lodged with the bank to draw checks in the name of the firm for 15 days and who after that period drew checks without the knowledge of the firm and appropriated the money to his own use during which time the bank book of the firm had been written up several times and as the clerk acted as bookkeeper and cashier the fact that he had been drawing checks was not made known for some time, the Supreme Court in deciding the case said:

“The bank was guilty of great negligence in paying checks of the clerk drawn after that period, and cannot be excused merely because the plaintiff failed to examine the returned checks, which he had a right to presume had been drawn by himself alone.”

In the case of Merchants’ Nat. Bank v. Nichols & Co., supra, the bank had sued a corporation depositor to recover on certain overdrafts drawn by an agent of the corporation. The defense was that the agent had no authority to sign the checks, and for that reason the bank had no right to pay the checks. The bank said the depositor was estopped to deny its liability because of its failure to examine the passbook which had been balanced and returned to the agent with the canceled checks. After citing the case of Manufacturers’ Nat. Bank v. Barnes, supra, and other cases, it was said: “By these authorities the claim of a bank on account of the depositor’s negligence is defeated by its own contributory negligence. In the case of Leather Manufacturers’ Bank v. Morgan, 117 U. S. 96, upon which great reliance is placed, it was held that a depositor’s duty is discharged when he exercises such diligence as is required by the circumstances of the particular case; that if a bank has been guilty of negligence in paying forged checks the doctrine of ratification and estoppel does not apply, and that if the bank, before paying such checks, could by proper care and skill have detected the forgery it could not receive a credit for the amount of the checks even if the depositor omitted all examination of his account. ’ ’

It was also said by the court that: “The conclusive answer, however, to the claim of the plaintiff was, that it was itself negligent-in not ascertaining the authority of Harte (the agent) and in paying the checks.”

It is claimed by defendant that the trial court erred in refusing to admit in evidence the ledger sheets of its account with plaintiff, and in this connection it is said that the plaintiff contended it had on deposit the sum of $3,077.04 and that defendant contended the amount was only $142.18. No question is raised as to the amount of the judgment in the errors relied upon by the defendant for a reversal of the judgment. Even if the court erred in refusing to admit the sheets in evidence the defendant was not unduly prejudiced thereby as the defense relied upon at the trial was that of estoppel and no question was raised as to the amount of the balance due plaintiff.

There is no merit to the contention of the defendant that the court erred in admitting in evidence copies of the plaintiff’s voucher statements without preliminary proof to account for the absence of the original. The evidence shows that there were three copies made, one original and two carbons, and they were all treated as originals. It is not error to admit carbon copies in evidence, as all being made simultaneously are, in fact and in law, originals. Wurlitzer Co. v. Dickinson, 153 Ill. App. 36.

It is also insisted that the court erred in refusing to strike out the testimony of the plaintiff’s executive secretary in which he testified to a conversation had with Mr. Holbrook, vice president of the bank, in which he told Mr. Holbrook that an audit had been made and that a shortage of over $3,000 was discovered due to erroneous entries, probably due to forgeries, and to which Mr. Holbrook replied that any charges made due to forgeries were the liability of the bank. He further testified that he had talked with Mr. Holbrook 15 or 20 times between November 6 and Christmas and asked him to please replenish our account; each time he replied, he wanted to advise further with our attorney regarding the right of the bank to pay the money to the plaintiff. Defendant takes the position that the admission was not an admission of fact, but one of law and for this reason not admissible.

This same statement was made by Mr. Holbrook to Mr. Estes who made the audit and was not objected to by the defendant. Mr. Estes testified that he told Mr. Holbrook that he had just completed an audit and that the result showed about $3,077.04 worth of checks, paid by the bank, which were not authorized by the association, and that they had the affidavit of the bookkeeper that they were forgeries, to which Mr. Holbrook replied that he could see no reason why the bank was not liable but that Mr. Sorling was away for a few days and upon his return the matter would be taken up in its regular manner.

The language used could be interpreted as an expression of an opinion and for that reason not admissible. On each occasion the subject was brought up .Mr. Holbrook qualified his statement by saying that he wanted to advise further with their attorney regarding the right of the bank to pay the plaintiff the money. We are of opinion that the defendant was not prejudiced by the refusal of the court to strike out the testimony objected to.

Defendant also complains of the action of the court in limiting the effect of defendant’s Exhibits 13, 14 and 15, which were stenographer’s note books kept by Mamie Donovan Maher who was a clerk in the passbook cage in the bank and in which she wrote the name of the account of the persons to whom statements and canceled checks were delivered. She testified she delivered the monthly statements and canceled checks of the plaintiff’s account to Mr. Eoscetti. All that appears in the note books concerning plaintiff are the words, “Ill. Tuberculosis,” “Ill. T. B.,” and similar notations. The court overruled the objection of the plaintiff and admitted the exhibits and limited their effect to showing a delivery of the statements of account to Eoscetti. We do not think the court erred in so ruling. The purpose of the offer was to verify the testimony of Mrs. Maher by a record made by herself at the time she testified she delivered the statements to Mr. Eoscetti, and the effect of the ruling was to limit the effect of the exhibits to showing a delivery to Eoscetti instead of to the association, as shown by the exhibits which were in the nature of self-serving statements. The pages of the exhibits were made up of different dates with names written under such dates and there are no explanatory headings to the exhibits, and without the testimony of Mrs. Maher would be meaningless.

Defendant says: “To show delivery of the bank’s statements and canceled checks to the plaintiff, the defendant offered in evidence three record books introduced in evidence as exhibits, respectively, 13 to 15 inclusive. The records on their face indicate delivery to the plaintiff. The young lady who made the records testified that she recalled giving the statements to Eoscetti on the dates indicated by the records. It was one of Eoscetti’s duties as plaintiff’s bookkeeper to obtain and reconcile the bank’s statements each month. The statements themselves were found in the office of the plaintiff in November of 1933. Delivery of these statements to Eoscetti was under the law delivery to the plaintiff.”

Whether the delivery of the statements and canceled checks to Eoscetti was a delivery to the plaintiff would depend upon the scope of the agency of Eoscetti, a question of fact to be determined from the evidence, and the making of Exhibits 13 to 15 by defendant, showing delivery to the plaintiff, would in no way tend to prove that it was one of the duties of Eoscetti to obtain and reconcile the bank’s statements each month.

In and of themselves the exhibits did not have any reference to bank statements and canceled checks or of the delivery of the same and as used to corroborate the testimony of the witness, Mrs. Maher, were incompetent. Statements, declarations or acts of a party, in his own interest, or tending to establish his theory of the case, or any act favorable to him, whether oral or in writing, are, as a general rule, inadmissible as evidence in his own behalf. 1 Ency. of Evidence, 383; People v. Foster, 288 Ill. 371.

It is further contended by defendant that it was reversible error for the court to instruct the jury that if Roscetti had an interest in concealing facts which he knew concerning the plaintiff’s bank account that the plaintiff was not bound by his knowledge. It is said this instruction was improper because it assumed that there was some evidence in the record that Roscetti had an interest in concealing facts. The record fails to show that defendant specifically pointed out to the court, before the jury was instructed, that this part of the court’s instruction was erroneous because it assumed that there was evidence in the record showing Roscetti had an interest in concealing facts. Only such objections as are overruled by the court may be made a ground for review. For this reason we are not authorized to consider this objection.

It is also insisted that the court erred in directing the jury to find a verdict in favor of the plaintiff if the jury found from the evidence that the defendant paid out funds of the plaintiff on unauthorized checks, because it completely ignored the defense of estoppel.

Section 67 of the Civil Practice Act before its amendment provided that instructions to a jury should be in the form of a continuous and connected narrative and not a series of separate instructions, in order that the jury would be in a position more easily to harmonize the seeming inconsistencies in the charge contained therein.

The sentence of the instruction objected to when considered alone would seem to be open to the objection that it ignored the defense of estoppel. The charge of the court to the jury when considered as an entirety is not open to such objection. After having carefully considered the instruction given by the court we are of opinion that it fairly and fully presented the law of the case to the jury.

It is also contended that the court erred in overruling the defendant’s objection to the statement, made by plaintiff’s counsel in the closing argument, that no official of the defendant was present in the court room during the trial because they were ashamed of it. None of the arguments of counsel was preserved in the record.

It is claimed by counsel for plaintiff that in his closing argument counsel for defendant placed much emphasis on the testimony he had elicited concerning the excellent methods used at defendant’s bank and that the argument of plaintiff’s counsel was material on the issue in which the business methods of the bank were on trial whether or not any official of the bank had been in the court room during the trial.

Not having the arguments of counsel before us we are not in a position to determine the question raised. The trial court heard the arguments on both sides and was in a position to judge whether the argument of counsel for plaintiff in error was proper and considered that it was.

In his closing argument counsel for plaintiff stated: “Estes identified the audit he made and they refused to admit the audit in evidence.” Objection "was made to the statement of counsel that defendant refused to admit the audit in evidence, saying: “That was the ruling of the court.” The court sustained the objection, saying: ‘ ‘ That was excluded. ’ ’

Plaintiff’s counsel claims that he believed the argument was justified by a tirade which counsel for defendant had made in his closing argument to the effect that plaintiff had not produced all the evidence at its disposal. From the record before us we are unable to determine whether the counsel for defendant in his closing argument may have gone outside of the record and thus induced the improper remarks of counsel for plaintiff to which the court sustained the objection. If counsel for defendant did deliberately make a statement, not warranted by the record, while it would not relieve the plaintiff of the charge of deliberately making a misstatement of the record for the purpose of prejudicing the jury, a court in passing upon the objection of the defendant would take into consideration the unwarranted conduct of the defendant in his argument to the jury.

It is further contended that „ the apparent finding of the jury that the plaintiff was not guilty of negligence in the examination of the statements of account furnished it or that the defendant was negligent in passing plaintiff’s checks presented to it for payment is manifestly against the weight of the evidence and the trial court erred in denying the defendant’s motion for a new trial.

The case was submitted to the jury under proper instructions and it was the province of the jury to pass upon the facts, and we are of opinion that the jury was fully warranted in finding a verdict for the plaintiff and for that reason the trial court did not err in overruling the defendant’s motion for a new trial.

Finding no reversible errors in the record the judgment of the circuit court of Sangamon county is affirmed.

Affirmed.


author: Mb. Justice Allaben

text:
    Pearl Gregory Blair, Appellee, v. Modern Woodmen of America, Appellant.
    Gen. No. 8,874.

      Opinion filed October 10, 1935.
    George G. Perrin and George H. McDonald, both of Boole Island, and Funk & McKeene, of Winchester, for appellant.
    S. H. Cummins, of Springfield, and C. C. Carter, of Winchester, for appellee.
   Mb. Justice Allaben

delivered the opinion of the court.

This suit was an action in assumpsit to recover $2,000 upon a fraternal benefit certificate issued by the appellant society to Ernest H. Gregory, and payable, in the event of his death, to Pearl Gregory, now Pearl Gregory Blair, the appellee. Upon the first trial, a verdict was rendered for the appellee, Blair, in the sum of $2,133.33, and on a motion for a new trial, the verdict was set aside. Upon the second trial, the jury found for the appellant society and a motion for new trial was made by appellee, Blair, and withdrawn, and a motion filed for judgment non obstante veredicto. This motion was granted by the court and judgment rendered for the appellee and a writ of error was prosecuted to the Appellate Court by appellant and the judgment was reversed and the cause remanded. (Modern Woodmen of America v. Blair, 263 Ill. App. 387.) The cause was then redocketed in the Scott county circuit court. The motion of appellant society for judgment on verdict of the jury was allowed and the motion of appellee, Blair, to renew her motion for new trial was denied. From this judgment a second appeal was taken by the appellee here, and the Appellate Court reversed and remanded the cause on the theory that the appellee was éntitled to be heard on her motion for a new trial. (Blair v. Modern Woodmen of America, 271 Ill. App. 121.) The cause was again redocketed and on a motion made by the appellee, a new trial was granted which resulted in a judgment for the appellee in the amount of $2,600, from which judgment this appeal is taken.

In her declaration Pearl Gregory Blair, plaintiff, averred the execution on the 17th day of November, A. D., 1927, by the defendant of a benefit certificate for a good and sufficient consideration to Ernest A. Gregory, and delivery of same to him, whereby it was agreed to pay the plaintiff, then the lawful wife of said Ernest A. Gregory, upon the death of the said Ernest A. Gregory the sum of $2,000 subject to the terms and conditions of said benefit certificate, which said certificate is set out in the declaration m haec verba. The declaration further avers that after the death of Ernest A. Gregory she gave notice on June 10, 1928, of said death, furnishing and delivering satisfactory proof thereof; that the said deceased during his lifetime fully complied with all the terms and conditions of said benefit certificate, and that the plaintiff had also complied with all the terms and provisions of said benefit certificate on her part, and claims damages in the sum of $2,000, plus five per cent interest from the time notice and proof of death was furnished to defendant; declaration finally avers refusal of the defendant to pay. To this declaration defendant pleaded first the general issue; second, a first special plea answering the allegations set forth in the declaration; third, a second special plea which admits its existence as a fraternal beneficiary society organized under the State of Illinois, the execution of the contract which is alleged consists of the articles of association and bylaws, application of the decedent, and benefit certificate ; further sets up that the decedent was suspended as a member on January 1, 1928, whereby the benefit certificate became null and void and was never legally reinstated so that the contract declared on was not in effect at the time that the death occurred. The third special plea sets up the averments in second special plea and in addition thereto says that after the said Ernest H. Gregory was suspended on January 1,1928, for failure to pay dues, an attempted reinstatement was made which was null and void because said Ernest H. Gregory was not in sound health at the time said attempted reinstatement was made. To this plaintiff filed a replication. In her replications to the appellant’s pleas appellee alleges that the camp clerk, by accepting and receiving delinquent benefit fund assessments and camp dues from Ernest H. Gregory, waived any forfeiture of the said benefit certificate for and on account of the said Ernest H. Gregory not being in sound health at the time said assessments were paid or caused to be paid, and that the conduct of the appellant in requesting proofs of death treated the claim of appellee as a valid and binding demand long after the default. On these issues a trial was had. The only proof that was submitted on behalf of the appellee were five exhibits: the benefit certificate, death proofs on forms of the society, official notice of death directed to the head clerk, evidence from local camp to the board of directors, Modern Woodmen of America of member’s death, and camp clerk’s receipt to member for the payments made on February 29,1928.

There was no rebuttal offered by appellee and the question whether or not there was in fact a waiver depends upon the exhibits offered. For brevity we deem it necessary to set forth only those portions of the exhibits referred to that are pertinent to the question of waiver. It appears from the pleadings and the evidence offered thereunder that Ernest H. Gregory became a member of the Modern Woodmen of America in October, 1927, and was issued a $2,000 benefit certificate, with Pearl Gregory Blair, his wife, as beneficiary; that on January 1, 1928, he automatically became suspended on account of failure to pay December, 1927, dues; that he became sick in February, and on February 29', 1928, his brother paid to the camp nlerk the delinquent dues; that at that time insured was extremely sick, and died on the same day; that the payments were returned by the clerk on March 1, 1928, and that afterwards proofs of death, and other documents wherein the certificates of the officers of the local camp attached stating that the deceased was “reinstated” were sent to the national camp. The only dispute as shown by the pleadings and the proof is whether the defendant by its acts, the acceptance of the dues, and the certification that the deceased was “reinstated” at the time of his death had waived the provision that he could not be reinstated unless he was in sound health. The only proof submitted on behalf of plaintiff was three documents, made up as five exhibits, which showed the issuance of the certificate, the death of the insured, and receipt for the dues. These documents, however, also show the suspension on January 1, 1928; that the illness was not reported to the camp until after death; that the clerk returned the dues on March 1st, and that all of the various forms were delivered to the plaintiff at her request. At the close of the plaintiff’s evidence defendant asked for a directed verdict in its favor, on which the court reserved its ruling. Defendant then offered in evidence the original application of the deceased, pass report, showing the suspension of Ernest Gregory on January 1, 1928, and the by-laws, which by reference are incorporated in the certificate; also the testimony of Leo Adams, the clerk who took office in J anuary, 1928, who testified that he was personally not acquainted with Ernest H. Gregory, did not know him from his brother, and that at the time he accepted the dues to reinstate Mr. Gregory he did not know he was not in sound health; that he learned this two or three hours later, and at that time Mr. Gregory was dead; that he returned the amount paid in the attempt to reinstate Mr. Gregory on March 1, 1928, and wrote across the stub of the receipt book, “Cancelled, March 1, 1928”; that nothing was said to him about the health of Mr. Gregory when the dues were tendered him, nor did he ask anything about it. Dr. C. A. Evans testified that he was called to attend Ernest H. Gregory on February 25, 1928; at that time that he had a fever and cough; that on the 27th he saw him again and his condition was worse, “pretty sick”; saw him twice on February 28th and there was no improvement; that he saw him again on the 29th, about noon, at which time he was very sick, in a very critical condition, and Dr. Evans stayed until Gregory died on the 29th. With this testimony the defendant rested, and the plaintiff offered nothing in rebuttal. Whereupon the defendant renewed its motion to instruct the jury to find a verdict for the defendant. On this motion the court reserved its ruling, to which ruling the defendant excepted. Plaintiff made a motion for a peremptory instruction in her favor which was denied, and the plaintiff excepted. After these motions were denied the court instructed the jury, and the jury returned a verdict, on June 21, 1934, in the sum of $2,600. On July 6, 1934, the court denied the motions presented by the defendant for' a directed verdict, on which it had previously reserved its ruling.

The errors assigned by appellant in this case are: First, that the evidence submitted by appellee was insufficient to establish a waiver of the forfeiture of the certificate of beneficial interest; second, that the court erred in refusing to give to the jury a peremptory instruction offered by appellant at the close of appellee’s evidence; and third, that the court erred in refusing to give the jury instructions offered by appellant relative to the elements constituting a waiver, and fatally modified certain other instructions.

The first question to be decided is whether or not the acts of the camp clerk, Leo Adams, in accepting and receipting for the delinquent dues, and in filling out the various forms which were sent to the head camp constituted a waiver of the forfeiture by suspension for nonpayment of dues. We think it is a well settled rule that the camp clerk, as an officer of the subordinate camp, in doing these acts, was acting within the apparent scope of his authority and if he waived the forfeiture, it would be binding upon his principal. (Independent Order of Foresters v. Schweitzer, 171 Ill. 325.) It is a general rule that in order to effect a waiver of a forfeiture, there must be a prior knowledge of the forfeiture to be waived because a “waiver” is the intentional relinquishment of a known right and there must be both knowledge of the existence of the right and the intention to relinquish it. This rule is recognized in the case of Ferrero v. National Council of Knights & Ladies of Security, 309 Ill. 476, which case arose where assessments were paid to a mutual benefit society after the death of the insured by suicide. The insured committed suicide on April 8th and the dues were paid to the camp council on April 23rd, and this payment was relied upon as a waiver of the forfeiture clause. In this case the court said: “When the payment was made to Emma C. Rauft” (the financier of the local council), “on April 23, 1921, the act of Ferrero which resulted in his death had been committed, but there was no evidence tending to prove that she had any knowledge of the fact, ór that, knowing of the cause of forfeiture, she gave the receipt and received payment in recognition of the continued validity of the certificate. Under the evidence and every legitimate inference to be drawn therefrom, the plaintiff was entitled to only the amount paid in as dues.”

In Dromgold v. Royal Neighbors, 261 Ill. 60, which involved a similar situation, the court said: “If a subordinate lodge, with full knowledge of a fact which would render a certificate void, continues to receive dues from a member, the right to forfeit the certificate on account of that fact is waived”; but in citing this verbiage of the court in the Ferrero case, the court said: “In all cases, however, the knowledge of the fact constituting a forfeiture is essential and there is .no waiver withpiit such knowledge,” citing Perin v. Parker, 126 Ill. 201. Likewise, in Nyman v. Manufacturers & Merchants Life Ass’n, 262 Ill. 300, a waiver was set up, and the court held that “knowledge is always a necessary element to constitute a waiver, and . . . the burden of proof is upon the party claiming a waiver to prove that the one charged to have waived the right knew of the fact that entitled him to the right and the facts upon which he relies for such waiver.” The case of Trafton v. National Council of Knights S Ladies of Security, 198 Ill. App. 347, was very similar to the case at bar in that a member had become suspended on August 1, 1913, for the nonpayment of July assessment and dues and subsequently attempted to reinstate though at the time she attempted such reinstatement, she was in poor health. The by-laws of the association provided that reinstatement could not be made unless she was in good health at the time. In the abstract decision of the court in that case, it held: “Where there is evidence that the ‘financier’ of a fraternal insurance society accepted an assessment which would operate to reinstate decedent in membership in such society providing she was in good health, but there is no evidence that such ‘financier’ knew that she was not in good health, such acceptance did not operate to reinstate decedent, and there is no liability upon her benefit certificate in such society.”

Again, in the case of Neenan v. National Council of Knights & Ladies of Security, 188 Ill. App. 490, a member of a fraternal order held a certificate where the by-laws provided for suspension for failure to pay the monthly assessments on or before the last day of the month and provided further for reinstatement within 60 days from the date of said suspension by the payment of the current assessment and local council dues and arrearages of any kind provided he be in good health. The assured was suspended for nonpayment of dues and while in suspension and not in good héalth, Ms back dues were paid to the local council and the payments were taken by the financier without knowledge on his part or that of any officer or agent of the order of the state of health of the assured. Immediately upon learning that the assured was not in good health, the financier of the local lodge returned the amount of the payments. In that case the court in its abstract decision said: “Under a by-law of a benefit society which provides that any member suspended for nonpayment of dues and assessments may be reinstated by payment of all arrearages within sixty days from date of suspension, if he is in good health at the time of reinstatement, a suspended member is not reinstated by the beneficiary causing the arrearages to be paid to the financier of the local lodge wMle the member was in the last stages of a mortal illness, where the financier accepted such payment without any knowledge of the member’s illness, there being also a further provision in the by-law that the receipt and retention of assessments and dues, in case the suspended member is not in good health, shall not have the effect of reinstating him.”

In Busta v. Court of Honor, 172 Ill. App. 71, the assured, holding a benefit certificate in a fraternal benefit association, was suspended under the by-laws for nonpayment of dues and assessments. Subsequently the delinquent dues were paid; the assured died and suit was brought upon the certificate. The defense was the same as in the instant case; that the payment of the dues of the suspended member was made to the recorder of the subordinate lodge while the member was not in good health and that this, under the by-laws of the society, did not effect a reinstatement to membership. In that case the court said: “If the suspension .of the insured became effective on January 31, it is uncontroverted that she was then, and thereafter until her death, in the last stages of a mortal illness, and she was, therefore, ineligible to reinstatement, and there is no evidence tending to show that the recorder of the District Court or other officers of plaintiff in error had any knowledge that the insured was not in good health when payment of the assessments was made on February 19', 1909.” In the case at bar, the uncontroverted testimony of Leo Adams, the camp clerk, shows that he had no knowledge of the precarious physical condition of Ernest H. Gregory, the assured, at the time he accepted and issued a receipt for the delinquent assessments.

It is clearly shown by the testimony of Dr. Evans that at the time the assessments were paid, the assured was critically ill and at the point of death. Even certain of the exhibits introduced by appellee are authority for the contention of appellant that the camp clerk did not have knowledge of the condition of health of the insured at the time the assessments were receipted for by him. The official notice of death which was filled out by William Snow, consul of the camp, and the camp clerk, Adams, showing the date on which Ernest Gregory died; the cause of death; the daté he joined the local camp; the first assessment paid by him, also contained the following language:

“The last two assessments paid before death, by or for said Neighbor, to the Clerk of said Camp were Assessment No. 1 paid on the 29 day of February, 1928 and Assessment No. 2 paid on the 29 day of February, 1928.

“Our Camp records show that said Neighbor was last suspended on the first day "of January, 1928 and that he reinstated on the 29 day of February, 1928.” Following this appears a certification that the deceased was not engaged in any of the society’s prohibited occupations ; that the statements contained in the report are certified to be the truth; that the benefit certificate is payable to Pearl Gregory and if the claim is allowed, Pearl Gregory, wife of the deceased, is allowed the $2,000. The official notice of death referred to by appellee also contains the following statement:

“The facts concerning the death of said Neighbor are as follows: Sickness was of very short duration and was not reported to Camp until after death had occurred. ’ ’

Plaintiff’s Exhibit 5, which is introduced in evidence, and which was evidence from the local camp to the board of directors of M. W. of A., contained the following language, after stating that neighbor Ernest Gregory died on the 29th day of February, 1928, and that the last two instalments were paid by or for him on that date:

“Our Camp records show that Neighbor Ernest H. Gregory was suspended on the 31st day of December, 1927, and that he reinstated on the 29th day of February, 1928. . . . Having examined carefully the financial books of this Camp, and under our Obligations as Woodmen, we hereby report the above facts as being the truth. His Benefit certificate is No. 3472698 and is payable to Pearl Gregory and if claim be allowed, we believe the following named person or persons' legally entitled to the pecuniary benefits in the following proportions, to-wit:

“Amount: $2,000. To Whom Payable: Pearl Gregory. Relationship: Wife.”

This form, dated June 26, 1928, was signed by William Snow, consul, and Leo Adams, clerk, of the local camp, and their signatures are preceded by a certification that the information contained therein is true. Following the certification of this form was a statement by Leo Adams, clerk of the local camp, reading as follows:

“No 12-1-2 Assessments payed for Neighbor Gregory on same date of his death was refunded March 1st, 1928, soon as possible. His sickness was not reported to camp until after death. Leo Adams, Clk.”

According to section 64 of the by-laws of appellant society, which forms a part of the.contract, a. suspended member may reinstate within 90 days after his suspension for nonpayment of assessments, fines or dues, if in sound health, the said provision reading in part as follows:

“Whenever assessments or dues are paid by or for a suspended member, for the purpose of reinstatement, said member shall, by such payment, be held to warrant that he is in sound health, and not engaged in any prohibitive occupation, and to contract that such assessments or dues, when so paid after his suspension for non-payment, shall be received and retained without waiving any of the provisions of this section, until such time as the Head Clerk or the Board of Directors shall have knowledge that the member was not in sound health when he attempted to reinstate. . Provided, however, that the receipt and retention of such payment in case a suspended member is not in sound health . . . shall not reinstate said member, or entitle him, or his beneficiary or beneficiaries to any rights under his Benefit Certificate; and provided, further, that such payment made for the purpose of reinstatement either before or after death, shall not constitute a waiver of any provision of these by-laws.”

The uncontroverted testimony of Leo Adams, camp clerk, was that at the time the last two assessments were paid on behalf of Ernest H. Gregory the camp clerk did not know of the insured’s precarious physical condition and did not learn of his death until after the assessments had been accepted and a receipt issued therefor and that after having received the assessments and issuing the receipt, the camp clerk learned of the death of Ernest H. Gregory, and on the following day returned the assessments to the mother of the deceased who, according to his testimony, he thought had furnished the money. This we believe shows a clear intention on the part of the camp clerk upon receiving knowledge of the condition of health of the insured at the time the assessments were paid and his subsequent death on the same day, to declare a forfeiture, contrary to the contention of appellee.

While it is true that the courts of this State have said that the acts of a benefit society, after the death of a member, may be received in evidence and considered for the purpose of determining whether at the time of the death the society considered the benefit certificate in effect and the membership a continuing one (Routa v. Royal League, 274 Ill. App. 152) and while it is further true that the courts are always reluctant to enforce forfeitures and that forfeitures are not favored and not enforced cheerfully (Knights Templars & Masons Life Indemnity Co. v. Vail, 206 Ill. 404), and that the circumstances must show a clear intention to declare a forfeiture, we believe that in this case the evidence clearly shows that it comes within the rule above stated, that there cannot be a waiver without knowledge of the forfeiture to be waived; that the camp clerk did not know of the condition of the assured at the time he accepted the dues; that his return of the assessments paid clearly shows his intention not to reinstate the suspended member. It has been held that the application for a benefit certificate and the bylaws of the society are to be considered a part of the contract between the society and a member. (Enright v. National Council of Knights S Ladies of Security, 253 Ill. 460.)

The by-laws in the case at bar were made a part "of the benefit certificate which Ernest Gregory held arid they provided that where a member was suspended and tendered dues in order to be reinstated, such a tender constituted a warranty on the part of the member that he was in sound health at the time. We believe, therefore, that when the dues in this case were tendered to the camp clerk, it constituted a warranty upon the part of the assured that he was in sound health and that the acceptance of the dues without knowledge of his actual physical condition could not effect his reinstatement, especially where there were no circumstances surrounding the transaction except the proofs of death and evidence from the local camp submitted to the head clerk of the order, in which the camp clerk stated that the insured reinstated on the 29th day of February, 1928, and if the claim were allowed, it would be payable to the beneficiary.

We fail to see anything in the exhibits introduced by the appellee that will discharge the burden of proof which is upon her to sustain her allegation of waiver. There is absolutely no evidence in the face of the facts recited that shows any act or conduct of the camp clerk that would induce a belief on the part of the beneficiary that the society did not intend to exercise its right of forfeiture on account of his suspension or that it recognized the insured as a member of the society in good standing, except the bare statement in- the formal proofs submitted. There is no intentional relinquishment in this case of a known right to declare a forfeiture. Appellee relies strongly upon the case of Waerness v. Independent Order of Foresters, 244 Ill. App. 211. The facts there are different from those in the case at bar, for in that case the local camp clerk, instead of entering a member’s suspension when it should have been entered, waited for a period of some months and then wrote the member a letter stating that he would suspend him if the dues were not paid up within 30 days.

The second ground for the assignment of error urged by the appellant is that the trial court erred in failing to give the jury a peremptory instruction in appellant’s favor at the close of appellee’s case. As pointed out heretofore the only proof submitted by plaintiff is documentary proof. While the documentary proof shows without question the issuance of the benefit certificate, the forfeiture on January 1, 1928, and the subsequent attempt to reinstate, it does not show that at the time the clerk accepted the money he had knowledge of the lack of sound health of the deceased; in fact, these documents show that the clerk did not have knowledge of the unsoundness of health at that time. These documents further show that the dues received for reinstatement were returned on March 1, 1928, as soon as possible, and that the sickness was not reported to the camp until after death. These documents introduced by plaintiff further provide that wherever there had been a forfeiture and payment for reinstatement, such payment constituted a warranty that the one seeking to be reinstated was in sound health. These documents further show that all of said documents were given to the plaintiff by the defendant at plaintiff’s request. In view of the authorities heretofore cited that there can be no waiver without a knowledge of the condition prior to the alleged actual waiver, and there being no testimony of any kind to contradict what these documents say, we are constrained to believe that the trial court should have directed a verdict at the close of plaintiff’s case. It is urged by plaintiff that defendant waived this error by proceeding to offer testimony after the court refused to rule on the motion. It renewed its motion at the close of all the evidence, and putting in testimony did not constitute a waiver of the error.

The third assignment of error is in regard to certain instructions given by the court. Section 67 of the Practice Act, Cahill’s St. 1933, ch. 110, If 195, provides that all objections to instructions must be made “before the jury retires from the bar, or within such further time as the trial court may by order allow before the jury retires from the bar, or they will be deemed to have been waived,” and that such objections must be specific. A search of the record does not disclose that any objections, either general or specific, were made to the narrative instruction given by the court, or to any part thereof. It is true that it does appear that two suggestions tendered were refused but no complaint is made on that ground. Therefore, we cannot consider the third error relied upon for reversal.

From a consideration of all of the above we are of the opinion that the evidence does not sustain the position of plaintiff that the deceased was a member in good standing of the defendant organization at the time 'of his death, or that the defendant had waived the right to question the attempted reinstatement of the deceased. We consider the manifest weight of the evidence to the contrary. Therefore, the judgment of the trial court is set aside, and this causé is reversed and remanded.

Reversed and remanded.