author: Mr. Presiding Justice Taylor

text:
    J. Gray Lucas, Plaintiff in Error, v. Lee Gansler et al., Defendants in Error.
    Gen. No. 31,611.
    Opinion filed March 29, 1928.
    Rehearing denied April 12, 1928.
    Edward H. Morris and J. Gray Lucas, for plaintiff in error.
    Walter A. Rooney and J. J. Cooke, for defendants in error.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This is an action of replevin brought in the superior court, on October 3, 1922, by the plaintiff, J. Gray Lucas, against the defendants, Gansler, Jacobs and Shapiro, for the recovery of an automobile, valued at $1,200.

Oil October 3,1922, the plaintiff filed an 'affidavit for replevin, and, on the same day, a writ was issued, directed to the sheriff, for the recovery of the automobile, and on March 26, 1923, the sheriff replevied the automobile, and delivered it to the plaintiff, J. Gray Lucas, having taken a bond from him in the sum of $2,400.

On March 25, 1923, the plaintiff filed a declaration which alleged that the defendants wrongfully took the automobile, and wrongfully detained it; and, further, that being lawfully possessed of the automobile, he lost it, and on the same day it came to the possession of the defendants, by finding, yet the defendants, knowing that it was the property of the plaintiff, have not delivered it to him, though often requested, but have refused to do so, and have converted and disposed of it to their own use.

To the declaration, the defendants filed pleas of non cepit, non detinet, and that the automobile was not the property of the plaintiff, but of the defendant, William Jacobs.

On November 30, 1923, the case being called for trial, and neither party appearing, it was ordered that it be dismissed, with costs, for want of prosecution, and that a writ of retorno hdbendo issue for the return of the property replevied. On December 26,1923, the order of November 30, 1923, dismissing the cause, was vacated and set aside, and the'cause reinstated and set for trial January 30, 1924, and the writ of retorno hdbendo recalled and quashed.

On January 7, 1924, the plaintiff filed a replication to the pleas of the defendants, and alleged that the automobile, at the time when it was taken, was “the property of him, the plaintiff, together with Olive G. Lucas, his wife, the owner thereof, and not of the defendant,”

There was a trial, before the court, with a jury, and on January 30, 1924, an instructed verdict of the jury, finding “the defendants not guilty, and the right to the possession of the property in question in the defendants.” Judgment was entered upon the verdict that the defendants have and recover from the plaintiff possession of the automobile and their costs and charges.

On February 2, 1924, on motion of the attorneys for the defendants, the verdict of January 30, 1924, and the order for the issuance of a writ of retorno habendo were vacated and set aside.

On June 11, 1925, there was a second trial, and on June 12,1925, an instructed verdict. The record shows the following:

“This day again come the parties to this suit by their attorneys respectively and the jury impanelled herein also come and thereupon at the close of all of the evidence on motion of defendants’ attorney the court instructs the jury to find the defendants not guilty and the jury say, ‘We the jury find the defendants not guilty. ’ ”

It also shows, after the overruling of the plaintiff’s motion for a new trial, and in arrest of judgment, the following:

“Therefore it is considered by the court that the plaintiff take nothing by his said suit and the defendants go hence without day * * *. It is ordered that a writ of retorno habendo do issue herein in favor of the defendant, Wm. Jacobs, for the return of the property replevied herein by virtue of the writ of replevin issued in said' cause.”

This appeal is from that judgment.

On June 19, 1925, counsel for the plaintiff entered a motion to vacate the order “that a writ of retorno habendo do issue,” and on July 8, 1925, an order was entered that the motion of the solicitors for the plaintiff to vacate and set aside the order for a writ of retorno habendo, entered on July 12, 1925, be denied.

It is contended for the plaintiff that the order of the trial judge, that a writ of retorno habendo issue, was unlawful, and beyond the power of the court, in the absence of a specific finding by the jury of the right of property in the defendants, as well as a finding of “the defendants not guilty.” On the other hand, it is the contention of counsel for the defendants that as the jury were directed by the court to find the defendants not guilty, and they did so, and the court then ordered a writ of retorno habendo, it is only reasonable to infer that the evidence, upon which he directed the verdict in favor of the defendants, was sufficient to justify the award of the writ of retorno habendo. There is no doubt that in the instant case, if the court had tried the cause without a jury and had made a finding that the defendants were not guilty, and had thereupon entered a judgment on the finding, and also had awarded the writ of retorno habendo, this court, upon a common-law record, in the absence of any evidence to the contrary, would be entitled to conclude that the evidence before the trial judge was sufficient to show the right to possession of the property in the defendants, and sufficient to warrant the order for the writ of retorno habendo.

It is true that in the record before us there is no bill of exceptions, but counsel for the plaintiff, in their brief, state: “The jury, after hearing the evidence adduced by both parties thereto, and arguments of counsel, being instructed by the court to ‘find the defendants not • guilty, ’ the jury returned into court the following verdict: ‘We the jury find the defendants not guilty, ’ ” and that is sufficient to justify this court in assuming that the verdict was the result of the direct instruction of the trial judge himself.

There is no doubt that, generally speaking, it is. the law that where the defendants in replevin file pleas of non cepit, non detinet, and deny ownership, or the right of possession to be in the plaintiff, and the jury, upon its own determination, returns a verdict of not guilty, only, it would be error for the trial judge, as a result of that verdict, to order the issuing of a writ of retorno habendo. Rohe v. Pease, 189 Ill. 207. In the instant case, however, inasmuch as. the trial judge ordered the verdict, and, upon its rendition, ordered the issuance of the writ, we think it must be assumed, from the record before us, that there was evidence that the plaintiff was not the owner, nor entitled to possession, and that the defendants were entitled to a return of the property, and the writ was properly issued. Harris v. McCasland, 29 Ill. App. 430. In that case, the court said:

“As announced by the jury it was a finding of property in the defendant; as entered by the court it was as not guilty. But the proceeding was ore tenus, and the verdict was equivalent to finding property in defendant, and such finding would authorize a judgment and writ retorno habendo.”

Further we think it is a reasonable inference, considering what the record contains — the direction of the verdict by the trial judge, and the particular ■ verdict tendered by the jury, and the action of the trial judge in ordering the issuance of the writ of retorno habendo — not only that the evidence justified the conclusion that the right to possession of the property was in the defendants, but that it was the judgment of the court in directing the verdict and entering the judgment to hold and to adjudge and order that the right to possession was in the defendants and that the writ for the return of the property should issue. There being, as we have said above, no bill of exceptions, we are not informed as to what the evidence was, and, therefore, we are entitled to assume that it was sufficient to justify the judgment of the court and order the issuance of the writ. Adair v. Adair, 51 Ill. App. 301; Culver v. Schroth, 153 Ill. 437; Kiesewetter v. Supreme Tent Knights of Maccabees of the World, 227 Ill. 48.

The ease has been tried twice, and each of the trial judges ordered a writ of retorno habendo to issue. We think it would be highly unreasonable now to hold that the learned trial judge who directed and received the verdict, and ordered the writ, did not decide and did not intend to decide that the right of possession had been proven by the evidence to be in the defendants.

For the reasons stated the judgment will be affirmed.

Affirmed.

Holdom and Wilson, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Helen Gudinas, Appellee, v. Globe Mutual Life Insurance Company of Chicago, Appellant.
    Gen. No. 32,225.
    Opinion filed March 29, 1928.
    A. W. Fulton and S. J. Fulton, for appellant.

      John B. Borden and Pines, Morse & Stein, for appellee ; Clarence T. Morse, of counsel.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This is a suit in the circuit court brought by the plaintiff Helen Gudinas, the beneficiary in a life insurance policy issued by the defendant, Globe Mutual Life Insurance Company of Chicago, on the life of John Gudinas. There was a trial before the court with a jury, and a verdict and judgment for the plaintiff in the sum of $1,000 and certain interest. This appeal is by the defendant, the Insurance Company, from that judgment.

The declaration sets out the policy in full. On its face it is for $1,000. The defendant filed a plea of the general issue and five special pleas. In the first it was alleged that the signature to the application was not that of John Gudinas, the insured; that the application was not made by him, or with his knowledge; that the signature was forged, and that some person was substituted for him when the application was made and when the medical examination took place; that after the death of said John Gudinas, the defendant tendered to the plaintiff the sum of $74.70 as the full amount of premium paid on the policy, which tender was refused; that the liability of the defendant under the policy, if anything, was only $344.02.

In the second it was alleged that it was provided in the policy that if the death of John Gudinas resulted from the use of alcohol or other stimulants, the company should be released from all liability; and that the death of the said John Gudinas did result from the use of alcohol or other stimulants to excess, and that therefore the defendant was not liable.

In the third it is alleged that it was provided in the policy that it would not take effect if the insured at the time was not in sound health; that the policy was issued on March 31, 1924; that at that time John Gudinas was not in sound health, and therefore the policy would not take effect.

In the fourth it is alleged that it was provided in the policy that it would not take effect if before its date the insured had been attended by a physician for any serious disease or complaint unless stated in the application; that before the date of the policy the said John Gudinas had been attended by a physician for a serious disease, which was not stated in the application, and that by reason thereof said policy never took effect.

In the fifth it is alleged that the policy was issued upon a written application bearing what purports to be the signature, “Jen Gudinas”; that if the application is the genuine application of John Gudinas, also known as “Jen Gudinas,” that he was asked the question, “Do you now use or have you ever used wine, spirits or malt liquors or tobacco ? ’ ’ and that said question was answered, “No”; that the answer was not true; that John Gudinas at and previous to mailing the application had been addicted to the excessive use of alcoholic liquors, and in the application the answer was warranted to be true, and by reason thereof the policy was void and of no effect.

Further, in special plea No. 2, as amended, it was alleged that the signature to the application, on March 25,1924, was not the genuine signature of John Gudinas, or authorized by him, but was forged by some one who was substituting and impersonating John Gudinas without his knowledge; and that the person impersonating John Gudinas was examined for the policy in question instead of John Gudinas, and, therefore, as a result, the policy issued on that application was void and of no effect.

Replications were filed by the plaintiff to the special pleas. They allege, in substance, that the signature to the application was the genuine signature of John Gudinas; that he was the plaintiff’s husband and was the one examined for life insurance; that his death did not result from the use of alcohol or other stimulants to excess; that on the date the policy was issued he was in good health within the meaning of the policy; that the statements in the application were fairly and honestly made by John Gudinas according to his best knowledge and belief and were true in substance and in fact, and were not relied upon by the defendant.

At the trial the plaintiff offered in evidence the policy sued upon, and it was stipulated by counsel for both parties that the premiums were paid according to contract prior to the death of the insured; that within the required time after the death of Gudinas the defendant was notified, and that death occurred on November 8, 1925, and proof thereof was made on .November 25, 1925. The plaintiff then rested. The defendant then introduced evidence in an effort chiefly to show that some one impersonated Gudinas and was examined and signed the application. Considerable evidence was offered on that subject. When, however, á comparison is made of the photostatic copies in the record of certain admittedly genuine signatures of the insured on certain documents offered in evidence, with the signature on the application for insurance, it is found that they are so obviously alike, and in all probability written by the same person, that it would be quite unreasonable for this court to override the verdict of the jury on that subject.

Evidence was introduced by the defendant tending to show that the deceased, Gudinas, made certain false answers in the application; that he made false answers as to whether he was in sound health, whether he had ever had a serious illness, and when he was last attended by a physician. We have examined all the evidence as it appears here in the record, and, in our judgment, it does not sufficiently show that the answers were made by the insured with the intention to defraud, and, further, it is in no way sufficient to justify us in disturbing the verdict of the jury.

As we view it, the chief question in the case is, what was the insurance contract, and what amount did it provide that the beneficiary was entitled to upon the death of the insured?

On the outside of the policy, when it was folded, after giving the number of the policy and the name of the defendant, there was the following:

“POLICY OF INSURANCE
Date Mar 31 1924
On The Life Of Premium, $37.21
John Gudinas Payable every 12 months
Address 1445 50th Ave. Age 47 City Cicero State 111. Register 5 Amount, $1,000. Name of Agent Binz.”
On the first page of the policy appears, as the first words, the following:

The policy then proceeds:

“THE GLOBE MUTUAL LIFE INSURANCE CO., OF CHICAGO, hereby insures the life of John Gudinas * * * and agrees to pay * * * the sum of One Thousand Dollars to Helen Gudinas, wife of the insured, within sixty days after the receipt and approval of due proof of the death of the insured, except if changed by endorsement on the fourth page hereof, provided that this policy be in full force by payment of premiums and this policy be surrendered at the time of said payment. * * *

“THIS CONTRACT is made in consideration of the application therefor, a copy of which is attached hereto and made a part hereof, and in further consideration of the payment of Twelve months premium of Thirty-Seven and 21/100 on date of this policy and of the payment of a like sum on or before every Twelve months thereafter during the continuance of this policy to the end of While Life on Whole Life Plan or until the prior death or the total and permanent disability of the insured. * * *

“THIS POLICY is issued and accepted subject to all the endorsements, conditions, benefits and privileges written, stamped or printed by the Company on this and on the following pages, which are part of this contract as fully as if they were recited at length over the signatures hereto affixed.”

At the bottom of the first page, there is the signature of the president of the defendant company, and that of the secretary. On the second and third pages, there are certain paragraphs pertaining to various subjects, such as total and permanent disability, and cash return on lapsed policies. One paragraph on page three is entitled, “Schedule of Life Expectancy and Single Premium Bates.” Underneath that, in very fine print, in five horizontal columns, there is a table containing certain words and figures, which, it is claimed by the defendant, measures the amount of single premium or lump sum as the secretary to the president of the defendant testified, “that will purchase a given amount of insurance so when it is paid in one lump sum they will not have to pay any further premium the rest of their life.”

On the fourth, or back page, that is, on the outside of the policy, there was printed or stamped on by a rubber stamp, which was put on by the secretary to the president of the defendant before the policy was mailed to the insured, the following:

“In consideration of the statements in the application, if the insured should die before the single premium as per table in the within policy is paid, the unpaid portion and five years" premiums will be deducted.”

Below the stamped matter there is the president’s signature, “T. F. Barry.” The Medical Examiner’s Report, signed by the insured, shows that he was 47 years of age, and, by occupation, a policeman. The Medical Examiner’s Certificate, signed by the company’s doctor, recites that the heart of the insured was affected with myocarditis, but that it had not affected his constitution; that his personal appearance as to health was good; that in his opinion the applicant was a fair average risk. On the face of the Medical Examiner’s Report there is stamped, “March 28, 1924, 3rd Class, F. T. Andrews, Med. Dir. ’ ’

It is contended for the defendant that even if the plaintiff is entitled to recover, the amount of recovery is not $1,000, but, as the insured died, “before the single premium as per tablé in the within policy” was paid, it was $1,000 less the “unpaid portion and five years premiums,” i. e., $1,000 less $656.26, or a total of $343.74. In support of that claim, the defendant at the trial offered to prove that a computation as to amount due on the policy, if anything, would show only $343.74 as due; that the so-called single premium due bill, according to the table for the age of 47 years, which was that of the insured, is $544.63; that the unpaid portion of that was found by deducting therefrom two annual premiums that were paid, amounting to $74.42; that then, adding to the unpaid portion five annual premiums of $37.21 each, that is, $186.05, the total sum to be deducted from the $1,000 would be $656.26, leaving a balance due of $343.74.

Upon objection being made by counsel for the plaintiff that the provision in question was misleading, ambiguous and unintelligible, and was contrary to the statute covering life insurance, under the stipulated premium or on the assessment plan, the trial judge rejected the evidence.

We think the ruling of the trial judge in excluding the proferred evidence and instructing the jury that if they found the issues for the plaintiff they should assess the plaintiff’s damages at $1,000, was justified and without error.

In our opinion, the stamped provision, on the last page, for a reduction of the amount of insurance recoverable to an amount less than $1,000, the amount conspicuously and expressly specified in the policy, is not, when it is sought to apply it to the schedule of life expectancy, reasonably intelligible; that is, even with the date of death, the age of the insured, and the amount paid for premiums, the stamped provision, taken with the schedule, is not, without more, capable of being reasonably easily understood by the average person, so as to realize sufficiently exactly what is meant, and is not “clear and free from ambiguity and expressed in ordinary words, having precise, definite and well understood meaning” (Grand Pacific Hotel Co. v. Michigan Commercial Ins. Co., 243 Ill. 110,112), and, further, is, when taken in conjunction with the formula “Schedule of Life Expectancy and Single Premium Bates, ’ ’ in conflict with paragraph 419, chapter 73, Cahill’s Bev. St. 1923, which provides:

“Every policy * * * issued # * * and promising payment to be made upon a contingency of death * * * shall specify the sum of money which it promises to pay under such contingency, and the number of days after satisfactory proof of the happening thereof on which such payment shall be made. Upon the occurrence of such contingency, * * * the corporation shall be obligated to the beneficiary for such payment at the time and to the amount specified in the policy or certificate.”

On the first page and the last page, the policy appears specifically to be one for $1,000. That figure is mentioned twice on the first page and once on the last page, and nowhere else in the policy does the defendant purport to “specify the sum of money which it promises to pay.” It may be urged that the words in the stamped proviso on the last page, “if the insured should die before the single premium as per table in the within policy is paid, the unpaid portion and five years premiums will be deducted, ’ ’ taken together with the horizontal table of figures on page 3 under the title, “Schedule of Life Expectancy -and Single Premium Bates” do, when the age- of the insured, the amount paid for premiums, and the date of death are known, “specify the sum of money which it promises to pay. ” We, do not think, however, that such a situation constitutes a compliance with the requirements of the statute that the policy “shall specify the sum of money which it promises to pay.”

In Page v. Ordway, 40 N. H. 253, 256, the court, interpreting a statute which required that the debt named in a mortgage would be specified, said that what was meant was that the debt should be specifically named so that one consulting the record might be able “to ascertain the date, nature, and amount of the demands designed to be secured.” According to the lexicographers, the word “specify” means to mention specifically or explicitly, to point out, tú particularize, to state in full, name expressly and distinctly, to designate by words one thing from another. Dillow & Co. v. City of Monticello, 145 Iowa 424, 431; Stewart v. Jaques, 77 Ga. 365.

No case has been cited, and we know of none in this State, in which the language of section 15, Cahill’s St. ch. 73, K 419, “that the policy shall specify the sum of money which it promises to pay, ’ ’ has been interpreted, but a number of decisions from Missouri have been called to our attention which pass upon words similar to those in our statute.

The words of the Missouri statute were construed in McPike v. Supreme Ruling of Fraternal Mystic Circle, 187 Mo. App. 679. In that case, no other specific amount of insurance than $2,000 was mentioned, but there was a reference in the policy to the constitution and by-laws of the society for further provisions in qualification of the insurance contract. Apparently, from the constitution and by-laws it was clearly shown that the beneficiary upon the death of the insured was only entitled to $731.70, but the court held that as the statute required the policy “to reveal the amount of the sum insured in the policy,” the provision making the sum specified to be paid subject to the deduction pursuant to the by-laws and constitution, which were referred to and made a part of the policy, contravened the statute and was, therefore, void. The court said: “It appears the only amount mentioned and vouchsafed in the policy here is that of $2,000.00 and the judgment should therefore be affirmed.” There are other Missouri decisions on the same general subject, as follows: Kribs v. United Order of Forresters, 191 Mo. App. 524; Parher v. Sovereign Camp of Woodmen of the World (Mo. App.), 196 S. W. 424; Courtney v. Fidelity Mut. Aid Ass’n, 120 Mo. App. 110,115; Wilson v. Brotherhood of American Yeoman (Mo. App.), 237 S. W. 212; Bondurant v. Brotherhood of American Yeoman (Mo. App.), 199 S. W. 424; State ex rel. Business Men’s Assur. Co. v. Allen, 302 Mo. 525, 259 S. W. 77; McFarland v. United States Mut. Acc. Ass’n, 124 Mo. 204, 27 S. W. 436; Goodson v. National Masonic Acc. Ass’n, 91 Mo. App. 339.

As to the stamped provision and the schedule of expectancy, after careful reading of the stamped provision on the back of the policy, and a determination of the age of the insured, and close examination of the rather condensed and elliptical schedule as to age and amounts, and making certain rather complicated and extended computations, a fairly acute mind would arrive at the conclusion contended for by the defendant. But in view of the emphasis the policy puts upon the fact that it is a policy for $1,000, and the obscurity of the stamped proviso, the difficulty of applying it to the schedule of expectancy, and considering the psychology and mentality of the average man, we are un- . able to conclude that it would be reasonable to hold that the insured should be bound by such a provision and schedule.

In our judgment, the proviso in the instant case, undertaking, as it does, in conjunction with the schedule, to reduce the specific sum expressly mentioned in the policy, is void, both by reason of the statute and by reason of the difficulty of so understanding it as to be reasonably sure of properly applying it. Equitable Life Assur. Soc. of United States v. Pettus, 140 U. S. 226. In that case the court said: “The Statute is not directory only, or subject to be set aside by the company with the consent of the assured; but it is mandatory, and controls the nature and terms of the contract into which the company may induce the assured to enter.”

For the reasons stated, the judgment will be affirmed.

Affirmed.

Holdom and Wilson, JJ., concur.


text:
    George H. Robinson et al., Appellees, v. Riverside Plaza Corporation, Appellant.
    Gen. No. 32,240.

      Opinion filed March 29, 1928.
    Cloyes & Klingler, for appellant.
    Burry, Johnstone & Peters, for appellees.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This is an appeal by the defendant, the Riverside Plaza Corporation, from a judgment in the superior court, upon a trial by the court, with a jury, in favor of the plaintiffs, George H. Robinson, J. Stanley Brown, Howard E. Mitchell and James H. McGean, copartners, doing business as Robinson & Company, in the sum of $8,000.

(1) The declaration consists of the common counts .and an amended bill of particulars. It was allegecj that the plaintiff, in the year 1924, was engaged in the investment banking business; that in July of that year, the defendant borrowed the sum of $800,000 from the Mutual Life Insurance Company of New York (hereinafter called the ‘‘Mutual Life”), and executed and delivered a trust deed upon certain real estate in Chicago to secure the payment of that sum; that it was provided in the trust deed that all special assessments assessed against the real estate should be paid when due by the defendant, and upon failure to make any such payment, the Mutual Life had the right to declare the debt due and payable at once and to foreclose the trust deed;

That on or about April 23,1925, payments of special assessments against the real estate exceeding the sum of $200,000 became due and payable, and were not paid by the defendant when they became due; that thereupon the Mutual Life put the trust deed in the hands of its attorneys, with directions to commence foreclosure proceedings against the defendant;

That on or about April 24, 1925, the defendant, at that time being in the midst of negotiations for the complete financing of a large building which it intended to erect on the real estate in question, caused a telegram to be sent by C. W. Euth of Chicago, who was acting as agent for the defendant, to Howard E. Mitchell, one of the partners of the plaintiff’s firm in New York, requesting the plaintiff to obtain from the Mutual Life forbearance and withholding of foreclosure proceedings against the defendant until the payments could be met; that thereupon the plaintiff, acting upon that request, obtained from the Mutual Life an extension of time until May 12, 1925, in which to make payment;

That on or about May 11,1925, the defendant, being still unable to make payment, caused a telegram to be sent to the plaintiff, by C. W. Euth, defendant’s agent, requesting the plaintiff to obtain a further forbearance from the Mutual Life; that the plaintiff did secure further forbearance from the Mutual Life, as requested by the defendant, and from time to time obtained from the Mutual Life further forbearance and delay in instituting foreclosure proceedings; that in the course of the time that the plaintiff was obtaining forbearance and extensions of time, the plaintiff received other requests by letter and orally from Ruth, as agent for the defendant, to obtain extensions and forbearance;

That on or about May 25,1925, Howard E. Mitchell, acting upon the request contained in the telegram received from Ruth as agent for the defendant, came to Chicago from New York, for the purpose of discussing matters with the agents and officers of the defendant, and remained in Chicago for two days, during which time he was engaged in such discussion and in obtaining information concerning the entire matter;

That the plaintiff obtained from the Mutual Life forbearance until about June 10, 1925; that on or about that date G-. V. Dicldnson, president of the defendant corporation, in the course of a long distance telephone conversation with Mitchell, requested the plaintiff to obtain a further forbearance and extension of time for making said payments until June 15, 1925, which extension the plaintiff secured;

That on or about June 16,1925, Dickinson, by a telegram to Mitchell, requested the plaintiff to secure further forbearance and a further extension of time to July 10,1925, and the plaintiff procured such extension from the Mutual Life;

That the defendant was unable to make the payments on the last-mentioned date, and the plaintiff, at the defendant’s request, procured further forbearance and further extension of time from the Mutual Life from time to time thereafter until the payments were made on or about August 10, 1925;

That many other communications passed between the plaintiff and the defendant during the period between April 23, 1925, and August 10, 1925, and repeated conferences were held between the plaintiff and the officers of the Mutual Life, and much time and labor were expended by the plaintiff in and about the procuring of the forbearance and the numerous extensions above set forth.

Plaintiff’s claim is for the fair and reasonable value of the services rendered by it to the defendant in obtaining from the Mutual Life forbearances and extensions of time, as above set forth, by reason of which services the defendant was enabled successfully to complete the refunding of the loan and the financing of its building project.

The bill of particulars puts the ad damnum at $50,250, and alleges that the plaintiff claims interest at five per cent per annum on that amount, from August 14,1925, when the bill was rendered by the plaintiff to the defendant, and a demand for payment made.

On May 5, 1926, the defendant filed a plea of the general issue and an affidavit of merits. The affidavit of merits sets up that the plaintiff did not, at the defendant’s request, or at the request of any authorized agent of the defendant, on the 14th day of August, or at any other time, perform any labor or services for the defendant; that the defendant did not, itself, or by any of its officers or agents, at the time alleged in the declaration, or at any other time, “request or employ the plaintiffs to perform any services whatsoever, except as brokers to secure the $800,000.00 loan mentioned in the plaintiffs’ amended bill of particulars, for which services and all things done in connection therewith by the plaintiffs, the plaintiffs were paid in full the sum of $25,000.00 by the defendant.”

(2) The record is voluminous. At the trial, testimony and exhibits were offered in evidence, covering in the record over 900 pages. Eight witnesses were called on behalf of the plaintiff; ten witnesses on behalf of the defendant, and, in addition, two depositions were offered in evidence. The plaintiff introduced in evidence 69 exhibits, and the defendant, 28 exhibits.

The ultimate question in the case is whether services were rendered by the plaintiff for which the defendant is liable.

(3) Some time early in 1924, the C. W. ¡Ruth Engineering Company, a corporation (hereinafter called tjie Buth Company), which owned patents pertaining to a certain type of garage and equipment for handling automobiles for storage, had preliminary plans drawn looking towards the erection of a combination office and garage building on certain lots located at the southwest corner of South Water street and Wabash avenue, Chicago. At that time, one Clemons was vice president, and one Stannard, treasurer, of the Buth Company. The Interstate Garage Corporation, with others, owned the land in question. Early in 1924, Clemons began negotiations with J. Milton Trainer and Callistus S. Ennis, real estate brokers. In the course of the negotiations, Trainer and Ennis suggested changing the plans for those of a somewhat different kind of building. Arrangements having been made on that score, a contract was entered into about March 1, 1924, between Ennis and Trainer on the one hand, and Clemons, as trustee for the stockholders of the Interstate Garage Corporation and some others, on the other. Following that, in June, 1924, the defendant, the Biverside Plaza Corporation, was organized, and to it, Clemons, as trustee, and others, conveyed the real estate in question. When the defendant company was organized, Clemons became president, Stannard, treasurer, and Trainer, Ennis and Dickinson, directors. Until the defendant established an office with Ennis in the Sector Building, in the fall of 1924, the mail for the defendant, according to the testimony of Buth, came to the offices of the Buth Company. Cloyes & Klingler were attorneys for the Ruth Company, and also for the defendant. About the time the defendant was incorporated, or shortly thereafter; a contract was made with the Ruth Company to purchase its equipment, and for it to do the engineering work in connection with the garage part of the building. The exact amount of . money that was put in originally is not shown, although there is evidence that on March 9, 1925, the Ruth Company put in $5,536.42, and on February 19,1925, $10,250.00; that Stannard advanced $10,000, and that Ennis, Trainer and others put up a few thousand dollars in July, 1925. The record does not show in any way what the capital set-up of the defendant at that time was.

The plans for the construction of the building that was to be built were prepared by Graver & Dinkelberg, and by the Ruth Company for garage equipment and design.

Shortly after the organization of the defendant, in the summer of 1924, the plaintiff, Robinson' & Company, in behalf of the defendant, applied to the Mutual Life for a temporary loan of $1,000,000, on the property in question. Mitchell, one of the partners of the plaintiff, knew Peabody of the Mutual Life very well, and, also, was acquainted with Timpson, its vice president, and Shields, who was manager of its real estate department. Prior to that time, Mitchell had done considerable business with the Mutual Life. The Mutual Life offered to loan $800,000 for one year at six per cent, and the offer was accepted.

The loan was payable. September 1, 1925, and was secured by a trust deed dated August 27, 1924, which was filed for record on September 10, 1924, on the above-mentioned property of the defendant, which property was at that time vacant and unimproved.

Mitchell testified that the $800,000 was not exactly a closed transaction in October, 1924; that he “had to assure the Mutual Life that the special assessments would be paid, otherwise the loan would not have been made”; that he “was put under an obligation by the Mutual Life. They would not make the loan unless they had the assurances. They asked me whether I would give them those assurances. I said no, ‘I do not know the Eiverside Plaza people.’ Then they said, ‘We won’t make the loan.’ Well, I said, ‘Would you be satisfied with the assurances of Mr. Eversz?’ They said, ‘We don’t know Mr. Eversz.’ Then I told them I had known Mr. Eversz over thirty years; that I had confidence in his statements. Knowing the Mutual Life as I did, and they having confidence in me, they said they would accept Mr. Eversz’ statement”; that when they accepted Eversz’ statement on his recom-" mendation, the matter was closed, as far as the payment of the money was concerned, but “so far as those assurances on special assessments, it was not closed”; that the Mutual Life required “reasonable assurances.”

An opinion of title of the Chicago Title & Trust Company, which was obtained, showed certain special assessments, in excess of $200,000, were pending against the property. Considerable correspondence then took place between the defendant and Mitchell, the Chicago Title & Trust Company and the defendant, and Mitchell and the Mutual Life, in regard to the special assessments. On September 19,1924, a supplemental opinion of the Chicago Title & Trust Company was furnished to the defendant that “neither of these assessments are collectible or payable at this time; that the first will be placed in collection in 1925, and the second will probably be placed in collection at the same time, but may be deferred for another year.”

On September 26, 1924, Clemons telegraphed the plaintiff, suggesting that the contemplated improvements would increase the value of the land, and thus be sufficient security for the loan, in any event. The loan was then made, as stated above,

The trust deed provided, in a typewritten rider, substantially, that if all assessments levied against the property were not paid within 90 days' after they became due and payable, the Mutual Life had the option of declaring the entire principal due.

Later, the defendant placed a second loan upon its property to secure an issue of notes aggregating $250,000, $25,000 of which notes were taken and accepted by the plaintiff and Eversz & Company as commissions for negotiating the $800,000 loan.

There is some testimony by Mitchell that Eversz & Company and the plaintiff, Robinson &- Company were entitled to a participation in the profits that the Federal Securities Company would make out of the major financing. Mitchell testified that Eversz (some time before his death on May 24, 1925) told him that he had made some arrangements with Wilder, the secretary of the Federal Securities Company, to be compensated by that company; that Eversz told him, Mitchell, that he did not believe it would be possible for him to get a contract out of the defendant, but as Wilder was an old and intimate friend of his, he could get it from him. In a letter to the Federal Securities Company, dated June 3, 1925, Mitchell wrote that Eversz told him that he had taken up negotiations with the Federal Securities Company in. regard to the division of prospective profits, and that he expected a 50-50 divide.

(4) Early in 1925, the Mutual Life took up the matter of the'payment of the special assessments with its Chicago counsel, Winston, Strawn & Shaw. That involved the rights of the Mutual Life under the trust deed given by the defendant, in case the special assessments against the real estate- were not paid, in compliance with the provisions of the trust deed. It was advised by counsel that the special assessments had become due January 22, 1925, and that the 90-day limitation expired on April 22, 1925. It was also advised that if the payments were not made by April 23, the Mutual Life, in accordance with the trust deed, could declare the loan to be due and payable.

The special assessments were not paid on April 23, 1925, but at that time the defendant was conducting its negotiations with the Federal Securities Company in order to finance not only the payment of the temporary loans and the special assessments, but also the erection of the building that was planned.

There is considerable testimony and correspondence pertaining to negotiations which covered about three months, concerning the payment of the special assessments and the putting off of foreclosure proceedings by the Mutual Life. It shows anxiety on the part 'of the Mutual Life and threats on the part of the Mutual Life to foreclose, and anxiety on the part of the defendant to postpone foreclosure, and for time to close up its major financing, so as to be able by doing so to pay off what was due the Mutual Life and go on with its general building project.

(5) It is for the reasonable value of the services alleged to have been rendered by the plaintiff through Mitchell in causing the Mutual Life to forego foreclosure, to forbear and delay its threatened action, that this suit was brought.

On April 24, 1925, a telegram was sent by the Ruth Company to Mitchell, in care of Robinson & Company, stating that the Mutual Life was .undertaking to “force action on delay of paying special assessment”; that the defendant was in the process of closing complete financing of the building with the Federal Securities Company, and that there was nothing to be alarmed about as to the assessment, and asking Mitchell to inform the Mutual Life that any undue pressure at that time might cause the defendant embarrassment,

Ruth testified that on the date of that telegram, Mitchell called him on the telephone, having tried to get Clemons, the president, and asked something about the special assessments, and that he, Ruth, answered with that telegram; that before sending the telegram, he asked and got the advice of Klingler, one of the attorneys for the defendant, who was, also, at that time counsel for the Ruth Company. Mitchell "testified that upon-receipt of that telegram he immediately took it' to the Mutual Life and showed it to Shields, its real estate manager, and told him that he would consider it a personal favor if he would defer foreclosure proceedings for a sufficient length of time to permit the financing to go through; that Shields told him that if he had reasonable assurance that he would be paid within a reasonable time that he would grant a short extension; that he then called up Ruth on the telephone and told him that action would be deferred provided the Mutual Life had reasonable assurance that it would be paid on the day set for payment; that the day following, he wrote Ruth telling him what he had done, and of his negotiations with Shields. In a letter he stated that Shields said that the matter was automatically in the hands of the legal department; that foreclosure proceedings should be instituted immediately, if their invariable rule was adhered to; that he read Ruth’s telegram to- Shields and told him about the negotiations with the Federal Securities Company, and that foreclosure proceedings might at that time seriously embarrass the negotiations; that he would consider it a personal favor if he would instruct the legal department to hold off for a sufficient time to permit the negotiations with the Federal Securities Corporation to crystallize into actual contract.

It is claimed for the defendant that nothing that Ruth did was binding on it; that although he may have written many letters and taken part in certain negotiations with Mitchell and others, in an effort to get the Mutual Life to put off foreclosure proceedings, from time to time, he did so entirely independent of the defendant, and that what Mitchell did, through Euth or by himself, was never sanctioned, or ratified by it in any way. There are many circumstances shown by the evidence, however, which have to be taken into consideration in ultimately determining whether or not what was done in the matter was authorized, sanctioned or ratified by the defendant.

There is no doubt but that, after the various delays of foreclosure had been obtained, running from April 24 to June 16, Mitchell’s authority to act for the defendant in regard to delay was completely and unqualifiedly sanctioned by the defendant, for on that date Dickinson, president of the defendant, wired Mitchell, “Authorize you on behalf of the Eiverside to arrange extensions to July tenth,” and, further, pursuant to Dickinson’s communication, Mitchell took the matter up with Shields, manager of the real estate department of the Mutual Life, and obtained the extension to July 10, and wired the result to Dickinson. That correspondence between Mitchell and Dickinson, together with a letter of June 10, 1925, which Mitchell sent to Dickinson, and a telephone conversation which Mitchell testified he had with Dickinson on June 10, demonstrate conclusively that the defendant directly authorized some of the services of the plaintiff in delaying foreclosure.

And, further, considering not only that evidence, but all the evidence as to what was done, both by Euth and Mitchell, from April 24, which is too voluminous to be recited here, we do not feel justified in overriding the verdict of the jury and holding that the defendant did. not, by its conduct, ultimately recognize and sanction all the work of Mitchell as having been done for its benefit. From that, it follows that all that was done by Mitchell, on the subject of forbearance, constituted services for which the defendant impliedly owed the plaintiff reasonable compensation. Linn v. Linderoth, 40 Ill. App. 320. In that case the court said:

“Where there is no relationship between the parties and one performs' any service for another, the presumption is that it is to be paid for and the burden will be on the one receiving the service to show that it was agreed to be performed without remuneration. Bishop on Contracts, See. 217.”

(6) It is urged that Mitchell expected to be compensated indirectly for his services in obtaining forbearance from the Mutual Life by participating with the Federal Securities Company in profits arising from the major financing; that Mitchell’s services were rendered because of some ulterior personal interest, but all the evidence was submitted to the jury, and they were instructed, at the request of the defendant that if they found “from all the evidence that the plaintiffs had a personal interest in procuring forbearance by the Mutual Life Insurance Company from foreclosing its mortgage or deed of trust for failure of the defendant to pay certain special assessments, and procured said forbearance, then in the absence of an agreement either express or implied by the defendant to pay the plaintiffs for their services in procuring such forbearance the plaintiffs cannot recover of the. defendant even though said services were beneficial to the defendant,” and they brought in a verdict for the plaintiff. What evidence there was on that subject was not enough, we think, to justify us in overriding their verdict.

(7) It is argued, also, that Mitchell was under some obligation to aid the defendant in obtaining delay by reason of having given assurances to the Mutual Life that the defendant would meet its obligations, but there is no evidence that there was any binding obligation whatever upon him to help the defendant to get its contractual obligations stayed. As to the second mortgage notes in the sum of $15,000, which were accepted by the plaintiff, in payment of the original commission, we do not think that affected in any way, or bore any relation to, the plaintiff’s services in obtaining forbearances by the Mutual Life. Taken, all in all, the evidence tends strongly to show that the services of Mitchell were rendered with the view solely to accomplish the forbearance which the defendant, quite obviously, desired, and that those services were all ultimately sanctioned, ratified and adopted by the action of the defendant.

(8) Objection is made on the part of counsel for the defendant to instruction numbered 5. The part of the instruction which is involved is as follows: “Although you believe from the evidence that Ruth was not authorized by the defendant to engage plaintiffs’ services for the defendant in securing forbearance from the Mutual Life Insurance Company and delaying foreclosure, if you believe from the evidence that the defendant through Dickinson, its president, knowing that the plaintiffs had been rendering such services for and on behalf of defendant afterwards requested the plaintiffs to obtain further extensions, the result and effect are the same as if Ruth had in the first instance been authorized by the defendant to request plaintiffs to render those services.”

And it is urged against the instruction that there is no evidence in the record that Dickinson, or any other officer of the defendant, ever requested the plaintiff to obtain any extensions or forbearances whatsoever, but the answer to that is, that the record does show that after several extensions had been obtained and the payments not made, Mitchell, in contemplation of an endeavor to get a third extension, telegraphed, telephoned, and also wrote to Dickinson that to get another extension he, Mitchell, must have, to show Shields, a statement over the signature of an officer of the company, giving a definite date when the specials would be paid and that Dickinson thereupon wired Mitchell the exact date on which the defendant would be able to pay the specials, signing the telegram with his full title as president, and confirming it by letter. There is, also, other evidence, such as the telegrams of June 16 from Dickinson to Mitchell.

Further, it is contended, in objecting to the instruction, that when Dickinson knew that the plaintiff had been rendering services on behalf of the defendant in the matter of forbearance, and requested Mitchell to obtain a further extension, that that did not, necessarily, ratify the original employment or the earlier services of the plaintiff. We cannot agree with that criticism. When Dickinson learned, through Euth and Mitchell, or either of them, that Mitchell had been rendering services at Euth’s request (and there was evidence to that effect), and he went on in the way of continuing Mitchell’s services, and accepting the benefit of the,m, the law would not permit the defendant to repudiate liability for any part of Mitchell’s services. If Dickinson, being familiar with all' the facts embraced within the instruction, asked Mitchell to continue his efforts (and there was evidence that he did) to obtain forbearance to a later date, that must be looked upon as an acquiescence in the employment of Mitchell whether by Euth or the defendant and a ratification of that employment. The services of Mitchell were continuous, and liability on the part of the defendant for part of those services cannot reasonably be segregated from liability for the rest of the services.

Objections are made to another instruction, but, in our judgment, they are not tenable.

(9) It is contended for the defendant that the trial judge erred in ruling upon a certain hypothetical question as to the value of services. The question appeared in a deposition of one Huntley. Although counsel for the defendant objected to the hypothetical question when the deposition was taken, no motion was made prior to the trial to suppress the deposition, so that the particular error referred to is not, in our judgment, now open for consideration. Catlin v. Traders Ins. Co., 83 Ill. App. 40; Benedict v. Dakin, 243 Ill. 384; Illinois Cent. R. Co. v. Foulks, 191 Ill. 57.

(10) Some criticism is made of the proof as to the nature and value of the services rendered on behalf of the plaintiff. Considering the .nature of the services rendered, we think there is ample evidence in the record justifying the amount of the verdict.

For the reasons stated, the judgment will be affirmed..

Affirmed.

Holdom and Wilson, JJ., concur.


author: Mr. Justice Holdom

text:
    Otto G. Weber, Appellee, v. Keith Railway Equipment Company, Appellant.
    Gen. No. 32,162.
    Opinion filed March 29, 1928.
    Chapman & Cutler, for appellant.
    Jay Stough and Henry L, Chatroop, for appellee,
   Mr. Justice Holdom

delivered the opinion of the court'.

The bonds are in the following form:

“STATE OF ILLINOIS

Number - Dollars

M236 1000

ONE THOUSAND DOLLARS

($1,000) in gold coin of the United States of America, of or equal to the present standard of weight and fineness, on the First day of October, 1925, at the office of Union Trust Company, in the City of Chicago, State of Illinois, or at office of Bankers Trust Company, in the City of New York, State of New York, at the option of the holder hereof, and to pay interest thereon from October 1, 1920, at the rate of seven per cent (7%) per annum, payable semiannually, on the First days of April and October of each year, bnt only upon presentation and surrender as they severally mature of the interest coupons hereto annexed.

“Both principal and interest of this obligation are payable, without deduction for normal Federal income taxes up to but not in excess of two per cent, which the Company or the Lessor may be required to pay thereon or to retain or deduct therefrom under any present or future law.

“THIS CERTIFICATE is one of a series of coupon certificates of the Company known as its ‘7% Equipment Trust Gold Certificates,’ of like date an tenor, except as to principal and date of maturity, in a total principal amount of One Million Five Hundred Thousand Dollars ($1,500,000), * # *.

Then there is a clause for anticipatory redemption before maturity, stating the terms thereof. Thereafter appears the following:

“In case of default on the part of the Company as provided in the aforesaid Contract of Lease, the principal amount hereof may be declared due and payable prior to maturity hereof in the manner, upon the terms and with the effect in said Contract of Lease provided.”

Then follows the attestation clause and the signatures of the Keith Railway Equipment Company, by O. L. Keith, president, attested by W. C. Webers, secretary, and sealed with the corporate seal, and statement that revenue stamps required by law have been affixed to the .trust indenture and canceled.

The following is a copy of the coupon interest note:

“No. 10 ON THE FIRST DAT OF $35.00 OCTOBER, 1925,

“KEITH RAILWAY EQUIPMENT COMPANY will pay to bearer without deduction for Federal income taxes to the extent of but not exceeding two pe’r cent (unless the note herein mentioned shall be sooner redeemed) at the office of Union Trust Company, in the City of Chicago, State of Illinois, or at the office of Bankers Trust Company, in the City of New York, State of New York, at the option of holder hereof, Thirty-Five and 00/100 Dollars ($35.00), in United States gold coin, being six months’ interest then due on its Equipment Trust Gold Certificate No. M236.

W. C. WEBERS,

Secretary.”

Then follows a certificate in words as follows:

“This is to Certify that this note is one of the notes described in the within mentioned contract of lease, dated October 1, 1920, from Union Trust Company, as Trustee, Lessor, to Keith Railway Equipment Company, Lessee.
Secretary.”

There was a trial before the court and jury. At the conclusion of the proofs by both parties each moved for an instructed verdict. That of defendant was denied and that of plaintiff given in pursuance of which the jury returned a verdict finding the issues for the plaintiff and assessing the plaintiff’s damages in the sum of $2,274, upon which verdict judgment was entered, and defendant brings the record to this court by appeal.

The declaration declared upon the bonds in the usual form by a special count, to which were added consolidated common counts. There was an affidavit of claim filed with the declaration in which plaintiff claimed there was due from defendant, after allowing all just credits, deductions and set-offs, $2,128, to which declaration defendant interposed the following plea in abatement:

“Defendant says that the two certificates or bonds sued upon were issued under the terms of a certain contract of lease dated October 1,1920, between Union Trust Company, as Trustee, Lessor, and defendant, Keith Railway Equipment Company, Lessee, as referred to in each of said bonds, and that each of said bonds is subject to all the terms and conditions set forth in said lease, among which conditions was one in Article Eight thereof, reading as follows:

“ ‘No holder of any of the certificates herein provided for shall have the right to institute any suit, action, or proceeding, at law or in equity, upon said certificates, or for the enforcement of any of the provisions of this lease, or for the appointment of a receiver, or for any other remedy under or upon this. instrument or the certificates or coupons referred to herein, unless such holder shall previously have given to the Lessor written notice of any existing default and of the continuance thereof, as aforesaid, and unless, also the holders of fifteen per cent in amount of the certificates hereby secured shall have made a written request upon the Lessor so to do; nor unless also, such holder or holders shall have offered to the Lessor adequate security and indemnity against costs, expenses and liabilities to be incurred by reason of such action, suit or proceeding, and unless such Lessor shall thereupon refuse to act or shall fail so to do for a period of thirty days thereafter — it being understood and intended that no one or more of the holder^ of the said certificates shall have any right in any manner whatsoever to enforce the. lien of this lease by his or their action, or to enforce any right hereunder, except upon the conditions herein provided for. All proceedings hereunder shall be instituted, had, and maintained by the said Lessor, for the equal benefit of all the holders of such certificates. The owners of all the certificates provided for herein shall participate with-, out preference, priority, or distinction, except as herein provided, in all payments made by the Lessee to the Lessor hereunder and in all collections made by the Lessor from the Lessee hereunder, whether such payments or collections are voluntarily made or made through the enforcement of the covenants of this lease or in, through or under any judicial proceeding. ’

Plaintiff replied to said plea as follows:

“Plaintiff alleges, that the two equipment trust certificates or bonds mentioned in defendant’s plea are the two promissory notes or bonds sued upon, together with certain interest coupons. Plaintiff then sets out a copy of said bonds sued upon and interest coupons which have heretofore been abstracted.

“Plaintiff further says in said replication, that each of said bonds and each of-.said coupon notes were sold and delivered to plaintiff by the Union Trust Company for a valuable consideration prior to October 1, 1925, and without the plaintiff having any notice or knowledge of any of the terms or conditions of the contract of lease referred to in the defendant’s plea. Plaintiff further alleges he bought and paid for each of said bonds and interest coupons after their date and before maturity, paying therefor the sum of Two Thousand Dollars ($2,000), without notice of any of the terms or conditions of said lease. Plaintiff alleges further that he became the owner of said bonds and coupons, on, to wit, August 1, 1922, and has been the legal owner and holder in due course thereof since that time. Plaintiff further alleges that neither of said bonds or coupons ‘was or is, so far as this plaintiff is concerned, subject to any of the terms or conditions in the alleged contract of lease referred to in defendant’s said plea.’ ” •

Defendant’s counsel contend that the provision in the bond, to wit, “to which Contract of Lease reference is hereby made for a statement of the nature and extent of the security afforded thereby, the rights of the holders of said certificates in respect of such security, and the terms and conditions under which said certificates are issued,” was sufficient to incorporate into the certificate itself all the applicable provisions of the contract of lease to which it refers, and further contended that the wording of such lease was to clearly prohibit a suit at law upon the certificate unless such conditions had been complied with, the reason being that when one purchased a bond containing a reference that it was isued under the terms of a mortgage or contract, to which reference is made, he thereby enters into contractual relations with the other holders and under the provisions referred to must act subject to the conditions recited in order to protect the interests of the majority and preserve the value of the security. This contention is met by plaintiff’s insisting that the instruments sued upon were negotiable instruments; that plaintiff is a holder in due course, and that under the provisions of section 3 of the Negotiable Instruments Act, Cahill’s St. ch. 98, 1f 23, “An unqualified order or promise to pay is unconditional within the meaning of this Act, though coupled with: * * * a statement of the transaction which gives rise to the instrument,”

At the conclusion of the arguments thé learned court stated:

“The only question is whether or not the purchaser of one of these certificates under that language was bound to take notice and examine that contract to find out if he didn’t have a right to sue unless he gave notice to the trustees or got 15 per cent of the holders to join with him in a suit. The only question is whether that was sufficient under the decisions to require him, if he was required, to go and examine and take notice of it. Then he would not be a bona fide holder without notice, and this defense would be good. Then he would not have any standing. He is a bona fide holder in every respect except the question of notice. In my humble judgment, it is a quiet way of slipping something over. If it was made subject to it, then one would have to go and examine that instrument.”

After this pronouncement by the court, defendant made an offer to prove the following:

“That he intended to offer in evidence the contract of lease dated October 1, 1920, between the defendant, Keith Kailway Equipment Company, and Union Trust Company, as Trustee, to show that by the terms of that contract of lease, plaintiff was not entitled to maintain this action unless he had previously complied with the conditions set out in the contract of lease, and that he also intended to offer proof of the amount of certificates outstanding at the time this suit was commenced, and of the fact that no written notice or request by the holders of the requisite amount of certificates had been made upon the trustee, and that no indemnity had been offered to the trustee. Whereupon the court said: ‘All right, you make your offer and I will sustain an objection to it.’ ”

Upon objection the offer to make proof was denied by the court.

To summarize the foregoing the crucial and decisive question for our decision is whether or not the instruments sued upon are negotiable instruments within the meaning of section 21 of the Negotiable Instruments Act, Cahill’s St. ch. 98, if 21, of this State. This provision reads:

“An instrument payable in money, to be negotiated, must * * * contain an unconditional promise or order to pay a sum certain in money.”

As the court said in Victor v. Warner, 248 Ill. App. 35, so we say here:

“Let us analyse the words of the act as applicable to the note in suit. It contains an unconditional promise to pay a certain sum of money at a certain time without restriction. * * * The note in every essential particular fulfils the requirements of the act supra to make it negotiable.”

And so we hold here that the instruments sued upon and appearing in evidence in the record are negotiable instruments, title thereto passing by delivery and in every essential particular fulfilling the requirements of the act supra, making them negotiable instruments.

Counsel for appellee say in their brief:.

“The Union Trust Company, in this proceeding, appeared not only in two incompatible positions, but in four or five hostile and antagonistic roles. It was the lessor in the so-called contract of lease, which was supposed to secure the bonds sued upon; it was also the trustee named in said lease and the bonds; it was the registrar of said bohds, whenever they might be registered; its office in Chicago was the place where the bonds were payable by their terms; and it was the seller of the bonds in question to the plaintiff here. In addition to all that, its agent appeared upon the trial as a witness for the defendant, who was the bank’s purported lessee and debtor.’-’

There is much truth in this statement. The hank trustee, it is in evidence, sold to plaintiff the bonds in suit. The title by the bank’s act of delivery passed to the purchaser plaintiff, and, at least inferentially, the conduct of the bank was notice to the plaintiff in making the sale that the instruments were negotiable. If they then believed' they were not negotiable instruments, they were guilty of conduct which tended to deceive the purchaser in leading him to believe that he was purchasing negotiable instruments, when as now contended they were not so. Is it to be contemplated for a moment that plaintiff would have purchased the bonds sued upon, if the bank had told plaintiff at the time that the instruments were non-negotiable? We opine not.

The setting forth in the instrument of the collateral security which secured the payment of the bonds in no way tended to affect or destroy their negotiability. The instruments sued upon, in themselves, are negotiable by their express terms to the point where there' is a recital of the fact that they are secured by collateral partially therein described.

In Victor v. Warner, supra, we disposed of a similar question, and decided that a mere recital that it was secured by chattel mortgage did not destroy its negotiability, and said:

“The negotiability of the note, supra, was not impaired because its payment was secured by a chattel mortgage * * *. In support of this proposition defendants contend that because the note is secured by a chattel mortgage it is not payable unconditionally. This contention finds no support in any of the terms of the note. It is payable for a sum certain and without condition. The chattel mortgage is collateral security only. If we were to concede the correctness of this contention, then every note secured by collateral would be non-negotiable, and bankers who hold such notes could not pass title by * * * delivery. This would make a new and novel condition in banking circles and destroy what has heretofore been regarded as the law governing notes secured by collateral.”

If it had been the design and purpose of the drawer of the instruments in suit to stamp them as non-negotiable instruments, it would have been very easy to make a provision to that effect, so that they who bought might have notice of such non-negotiability, as said in International Finance Co. v. Northwestern Drug Co., 282 Fed. 920:

“It is a very easy thing for parties, when they are drawing an instrument, to make it either negotiable or nonnegotiable, as they see fit. It does not require any extensive use of language or any particular knowledge of law. If the instrument here in question had read ‘Accepted for payment conditionally, ’ the use of that single word would have destroyed its negotiability. Or if the instrument had read ‘Accepted for payment subject to the conditions of the Eeolo contract,’ I think .there would have been no question that those words destroyed the negotiability. But this form of words, ‘As per Eeolo contract,’ does not state specifically that the acceptance for payment is subject to conditions of any contract.”

Furthermore, there is no reference in the instruments in suit that they were made subject to the terms and conditions of the instrument securing them. The trust deed securing the bonds to the bank were not by apt words or by reference made a part of the bonds, so that a purchaser was not put upon notice as to whether or not the terms of the trust deed affected the negotiability of the bonds, which upon their face under the law were negotiable.

Doyle v. Considine, 195 Ill. App. 311, is somewhat in point, where Mr. Justice McSurely, in writing the opinion, said:

“As to the second point, the note says: ‘This note is given in accordance with a land contract of even date herewith between E. H. Bauch and J. P. Considine. ’ By the Negotiable Instruments Act, ch. 98, sec. 21 (J. & A. ft 7642), it is provided that a ‘promise to pay is unconditional within the meaning of this act, though coupled with * * * a statement of the transaction which gives rise to the instrument. ’ That is this case, and the instrument is negotiable, and an inquiry into the contract was incompetent.”

We think the dicta of this decision sustains our conclusion that the instruments in suit are negotiable instruments under the Negotiable Instruments Act, supra.

There are several decisions in this State holding that the language used in a note or other commercial instrument will not have a tendency to destroy its negotiable character, unless by such terms payment is dependent or conditional upon some instrument to which it refers. Among these cases are Biegler v. Merchants’ Loan & Trust Co., 164 Ill. 197; Siegel v. Chicago Trust & Savings Bank, 131 Ill. 569; Hunter v. Clarke, 184 Ill. 158; and Zollman v. Jackson Trust & Savings Bank, 238 Ill. 290. In the latter case the court said:

“The appellant contends that since the notes in question showed upon their face that they were secured by a trust deed appellee cannot be regarded as an innocent holder of such notes, and that the purchaser should be held to have notice of all facts that inquiry would have disclosed. This is a misapprehension of the effect of such recital. A recital upon a promissory note, to destroy its negotiability, must be of a kind that in some respects qualifies or makes uncertain or conditional the promise. (Siegel, Cooper & Co. v. Chicago Trust and Savings Bank, 131 Ill. 569; Biegler v. Merchants’ Loan and Trust Co., 164 id. 197.) In the case last above cited .it was held that a note which recited that ‘this note is secured by a lien upon my interest in certain horses described in agreement this day made between G-. W. Leihy and myself/ was nevertheless a negotiable instrument, and that a purchaser for value before maturity held such note free from any latent defenses that the maker might have against the payee.”

We think the foregoing states the doctrine applicable to the condition of the case at bar. Plaintiff undoubtedly has a right to resort to the security to realize payment of the indebtedness held by him and secured by such security, but if he should institute an appropriate suit, he would then be bound to proceed in accordance with the terms of the instrument securing such payments, but we hold that such conditions have no effect in directing the method which plaintiff should follow in his action upon these negotiable instruments. While it is true there are cases cited by defendant in the Federal courts which hold to the contrary doctrine, they are not binding on this court. Our guide is the decisions of our own Supreme Court above quoted.

We find no reversible error in the record before us, and for the reasons herein stated the judgment of the superior court is affirmed.

Affirmed.

Taylor, P. J., and Wilson, J., concur.


text:
    Kathryn Dowling, Appellee, v. MacLean Drug Company, Inc., Appellant.
    Gen. No. 32,204.

      Opinion filed March 29, 1928.
    Kirkland, Patterson & Fleming, for appellant; JaY Fred Reeve and William H. Symmes, of counsel.
    Thomas J. Finnegan, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an action on the case, brought by Kathryn Dowling, as plaintiff, against MacLean Drug Company, Inc., a corporation, as defendant. The declaration is contained in one count, which avers that plaintiff was rightfully upon the premises of defendant; that it was the duty of defendant to exercise all due care and caution for plaintiff’s safety while on its said premises; that defendant in disregard of its duty negligently and carelessly placed or caused to be placed a certain scale or weighing machine on the floor of its premises, which by reason of the negligence of defendant, etc., protruded and extended on and into a certain aisle or lane used by persons lawfully upon the premises, and that on, to wit, February 11,1925, while plaintiff with all due care and diligence was passing over said aisle or lane, she did then and there stumble and fall onto and over a foot platform of the scale or weighing machine aforesaid, and was thrown with great violence upon the floor of defendant’s premises by means whereof hen right shoulder was broken and her right arm dislocated, and she was otherwise injured, etc., claiming that she was damaged in the sum of $10,000.

To this declaration defendant interposed a plea of the general issue. On the issues thus joined there was a trial before court and jury resulting in a verdict in favor of plaintiff for $2,500 damages, upon which, after overruling motions for a new trial and in arrest of judgment, judgment was entered, and defendant brings the record here by appeal. No questions arise on the pleadings, neither is it argued or claimed that the amount of the verdict, if plaintiff is entitled to recover at all, is excessive. However, defendant urges as reasons for reversal that a verdict should have been directed on the ground that the defendant was not guilty of negligence and plaintiff failed to exercise ordinary care, and also that the verdict is against the manifest weight of the evidence.

■ Defendant in its brief sets out the premises with the environment of the place where the accident occurred, which we adopt in this opinion as a reasonable statement of the situation:

“Defendant’s store was located at the northeast corner of Broadway and Wilson avenue. There was an entrance at the corner of Broadway and Wilson avenue and there was another entrance about thirty feet east of Broadway on Wilson avenue. The door to this entrance extended back about six feet from the sidewalk line, each side of the aisle to this door from the sidewalk line being of glass. Even with this door there was woodwork running to the east wall against which were telephone booths. West of the door for a distance of about three and a half feet there was light brown woodwork, then there was a turn to the south and then a turn to the west, this wall forming the back of the front windows on Wilson avenue. Extending from Broadway towards the telephone booths was an aisle bounded on the south side by the cigar counter (about thirty feet long), the aforesaid three and a half foot wall to the door, the door, and then the wall extending between the door and the telephone booths. On the north side of this aisle was the soda fountain, candy counter and kodak counter. Up against this three and á half foot wall between the cigar counter and the Wilson avenue door was the scale. This wall to the south was about eighteen feet high, formed of a brown mahogany for ten feet up and above that, glass for eight feet, through which natural light came in. The Wilson avenue door was also of glass.

“The back end of the scale extended up over six feet and at the top having a dial with a glass front through which you could see ‘the works in it and the brass figures on it,’ and the dial was about three feet in diameter * * *. The base of the scale extended about two feet beyond the south wall into the aisle. * * * Above this aisleway there was a 200-watt bulb which, if it had been let down to the floor would have been about two feet from the scale and which was about ten feet above "the scale. There were two 75-watt lamps above the candy case which, if they had been let down would have been eight to ten feet from the scale and which were about three feet above the scale. These lights were bright. The floor was of white tile with brown spots in it, the brown spots being about the size of a penny * * *. The foregoing facts are undisputed.”

The court did not err in denying defendant’s motion for a directed verdict at the conclusion of plaintiff’s case, or at the conclusion of all the evidence, because, from a careful examination of the testimony, we find that the questions arising upon such motions were not of law but of fact, and therefore under our practice and the decisions of our Supreme Court should have been submitted to' the jury for determination, for whether or not defendant was guilty of negligence, or plaintiff did not exercise ordinary care for her own safety, were facts for the jury to determine.

It appears by the evidence without contradiction that plaintiff was an invitee upon the premises of defendant in its drug store, and had gone there for the purpose of telephoning from one of the telephone booths which defendant maintained in its store, and it is also undisputed that plaintiff tripped and fell over the base of the scale or weighing machine, and that she sustained a fracture of the surgical neck of the humerus of her right arm as a result of the trip and the fall. The negligence does not rest in the maintaining of the scale or weighing machine in the premises of defendant at the place where it was, but in maintaining the scale with a base extending about two feet beyond the south wall into the aisle through which plaintiff was walking when she tripped and fell and was injured as above stated. At the time she fell she was on her way to the telephone booth walking in an aisleway, which, but for the protrusion of the base of the scale, was unobstructed, and the lack of ordinary care for plaintiff’s own safety is predicated by defendant upon the fact that she did not see the protrusion of the scale over which she tripped, and this it argues in its reply brief. While the presence of the scale was obvious to plaintiff, the protrusion out into the aisle over which she tripped was not obvious, and not anticipating the obstruction and, therefore, not looking for it, it was the cause of her fall. While she saw the scale, it was not a failure to exercise due care on her part to assume that there was no obstruction in her path, neither was it a failure to exercise due care in not looking upon the floor for the obstruction, which she unexpectedly encountered. She was walking along a passageway upon which patrons in the store were invited to walk on their way to the telephone booths. It cannot be said, as a matter of law, that she failed to exercise due care in stumbling over the projection. That was a question of fact for the jury, which they have settled by their verdict.

It is true that there is some conflict in the evidence as to how the accident happened. If the proof of plaintiff standing alone is sufficient to sustain the verdict of the jury, then we are not permitted under the law to disturb that verdict, unless we can say that, all the evidence considered, the verdict is manifestly contrary to its probative force. It is the province of the jury to pass upon the credibility of the witnesses, their manner of testifying from their observation of them upon the witness stand, and therefrom to judge as to which of the witnesses were more entitled to credit and to give credit accordingly. In the circumstances environing this court we cannot see the witnesses, nor observe their manner or disposition, nor from their actions judge of their credibility or lack of credibility. These privileges the jury had, and under such circumstances we are not permitted to disturb the conclusion to which they arrived.

It is apparent that plaintiff was rather shifty in giving her testimony and in some points it is incongruous and contradictory. However, there is a sufficiently coherent story given by her, which if believed by the jury would sustain her right of recovery. The jury probably concluded that these little contradictions were the result of the skilful examination of the witness by defendant’s counsel, which may have created some little confusion in plaintiff’s mind. This likewise the jury observed, and not unreasonably they gave credence to the substantial facts detailed by her in her testimony, which sustained her right to recover. This testimony received support from other witnesses, who testified in her behalf, which, the jury believing, would justify the verdict they found for the plaintiff.

Defendant cites Offutt v. World’s Columbian Exposition, 175 Ill. 472, to sustain its contention that the verdict should have been directed' upon its motion. A careful perusal of this case rather leads us to a contrary view. In the Offutt case the verdict was directed against the plaintiff on motion of defendant, and for so doing the judgment was, by the Supreme Court, reversed and the cause remanded for a new trial. The court in discussing the question said, inter alia, quoting from the opinion of Mr. Justice Scholfield in Bartelott v. International Bank, 119 Ill. 259:

“ ‘It is apparent that “evidence tending to prove” means more than a mere scintilla of evidence, but evidence upon which the jury could, without acting unreasonably in the eye of the law, decide in favor of the plaintiff or the party producing it. It is not intended by this practice that the function of the jury to pass upon questions of fact is to be invaded, any more than it is intended that such function is to be invaded by a motion to set aside a verdict and for a new trial upon the ground of the want of evidence to sustain the verdict. In neither case is the court authorized to weigh the evidence and decide where the preponderance is.’ See, also, Siddall v. Jansen, 168 Ill. 43, and Rack v. Chicago City Railway Co., 173 id. 289.

And in further discussing motions to direct a verdict, said:

“It is true that such motions are not to be regarded with favor. The province of the jury must not be invaded, (Frazer v. Howe, 106 Ill. 563), and where reasonable minds, acting within the limitations prescribed by the rules of law, might reach different conclusions the evidence must be submitted to the jury. For a comprehensive review of this question see 6 Ency. of PI. & Pr. 667, and 2 Thompson on Trials, 1595.”

We think that the duty that defendant owed to plaintiff in the instant case is well stated in Petty v. Stebbins, 164 Ill. App. 439, where it is said:

“We are of opinion that appellants owed appellee the duty to exercise reasonable care to make the way reasonably safe where a passageway had been provided by them to go to the apple bin. Appellants introduced evidence tending to show that it was sufficiently light in that part of the store so that one could read a newspaper. The questions whether appellee exercised due care and whether appellants were negligent as charged were for the jury and were decided in appellee’s favor.”

This case is very similar on the facts to the case at bar, if you substitute “telephone booth” for “apple bin.”

McNeil v. William G. Brown & Co., 22 Fed. (2d) 675, was a case of a directed verdict for defendant, which the court of appeals reversed and sent back to the trial court for a new trial.

In View v. Metropolitan West Side El. Ry. Co., 166 Ill. App. 154, the court said:

“The law does not charge one with anticipating dangerous and negligent conditions, but he may assume that others have done their duty to give proper warnings of hidden dangers. C. C. Ry. Co. v. Fennimore, 199 Ill. 9.”

And on this subject the court further said:

“The same precautionary means requisite to relieve a party from the charge of negligence when he approaches known places of danger, or places where danger may be apprehended, may not be required of him when he has no occasion to suppose that .danger may be encountered. McRickard v. Flint, 114 N. Y. 222.”

We think this particularly applicable to the instant case. Plaintiff had no "reason to apprehend the danger which encountered her, and therefore did not cast her eyes to the foot of the scale which protruded into the aisle where she was walking, over which she tripped and fell. In her testimony she said that “she did not think there was anything there. You are not looking at the floor for things all the time in a public place like that. I just simply fell over it.”

A case on fact and principal to the one at bar will be found in Nye v. Louis K. Liggett Co., 224 Mass. 401, which was an action for personal injuries sustained by the plaintiff by falling over the low base of an upright weighing machine in the drug store of defendant. Error was assigned on the refusal of the trial judge to give an instruction reciting the "facts which virtually instructed a verdict for the defendant if followed by the jury. In affirming this action of the trial court, the court said inter alia:

and removed the machine. While the case is close we cannot say as matter of law that there was no evidence for the jury of the defendant’s negligence. * * * It is further contended that the plaintiff was negligent. * * * This question was for the jury, who were to determine whether the presumption of her due care had been overcome by all the evidence, with the burden of proof on the defendant.”

Bloomer v. Snellenburg, 221 Pa. 25, is to like effect, and there are many others.

In Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544, cited by both parties, the court said:

“But all the puzzling refinements as to degrees of care have been done away with in this court, and the accepted rule is, that if one exercises the degree of care required of him under the circumstances he is guilty of no negligence, but if he fails to do so he is guilty and cannot recover.”

We think the plaintiff was, under the foregoing definition, in the exercise of such degree of care as entitled her to succeed in this action.

We find no error warranting a reversal of the judgment of the circuit court, and it is therefore affirmed.

Affirmed.

Taylor, P. J., and Wilson, J., concur.


text:
    The Dayton Scale Company, Appellee, v. General Market House Company, Inc., Appellant.
    Gen. No. 32,228.

      Opinion filed March 29, 1928.
    Ralph Rosen, for appellant.
    Goldman & Seeder, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an action brought by plaintiff against defendant for the value of certain scales and meat slicers sold under a conditional sales contract to Peter Golas, and which' at the time of the institution of this suit were in the possession of the defendant.

The case was submitted by agreement to the trial judge without a jury, and on the proofs heard there was a finding in favor of the plaintiff for $510, and judgment thereon, after the overruling of motions for a new trial and in arrest of judgment. Defendant brings the record here by appeal for our review.

The articles in suit, it is claimed by plaintiff, were sold part on September 25, 1924, and the remaining part on January 8, 1925. The contract between the parties, plaintiff and Golas, is what is known as a “conditional sales contract.” In said contract a clause in substance is found: That the equipment shall remain the property (naming the property) of plaintiff until the price or a judgment for same is paid in full.

When suit was commenced plaintiff claimed $950 of the purchase price remained due and unpaid. The two contracts were in the same general form: That of September 25, 1924, was for articles of an agreed price of $950, to be paid $50 in cash and the balance in 17 monthly payments of $30 each and one payment of $50, and that of January 8, 1925, was for articles totaling by agreement $1,290. Of this $1,290, $100 was paid in cash and the balance of $950 was to be paid in 15 monthly payments of $60 each and one payment of $50. All of the foregoing payments in both contracts were evidenced by Golas ’ instalment notes for the amounts above set forth. There were certain allowances made on both sales, which reduced the prices to be paid to the total amount hereinabove recited.

It is in evidence that Golas made six payments under the two contracts, but made default in his payments in April, 1925. In September, 1925, he began other payments, and the last payment which he made was in December, 1925; and Golas was importuned by plaintiff to make the balance of his payments, but that his excuse of being hard pressed for money was received and he was permitted to retain possession of the articles covered by the contracts.

Upon the trial defendant’s counsel offered to prove that all of Golas’ goods, equipment and fixtures, including the scales and meat slicers sold by plaintiff to Golas under the conditional sales contracts, were conveyed by Golas to one Morris Milstin on April 29,1926, by chattel mortgage; that the chattel mortgage was recorded in the recorder’s office of Cook county on the same day; that subsequently Milstin foreclosed the same and that all the goods, including those for which plaintiff sought to recover the value from defendant in this suit, were sold by the bailiff of the municipal court to one Shimelfarb; that Shimelfarb on November 8, 1926, sold them to one Levee, and that Levee on November 15, 1926, by bill of sale, conveyed the same property for a consideration of $7,500 to the defendant, General Market House Company. This offer of evidence upon objection made by plaintiff the court refused to receive. This action of the court was erroneous. The evidence should have been received, and as it was excluded upon the motion of plaintiff, and thereby the evidence on its procurement was not received, we are entitled to assume that defendant’s counsel would have, but for the interference of plaintiff, made the proof which he offered to do. Plaintiff cannot be held in this court to object to our so doing, as the error is chargeable to its improper objection. The effect of the objection in law goes to. the probative force of the evidence offered, and is tantamount to a contention that such evidence constituted no defense to the action. We will assume counsel for defendant, in making the offer, did so in good faith with the knowledge that he had witnesses at hand by whom to make such proof.

Defendant argues for reversal that it was a bona fide purchaser of the property in suit, and that the conduct of the plaintiff estops it from asserting title to such property, and that the court committed error in excluding evidence proffered by defendant, and that the court erred in not finding the issues for the defendant.

Plaintiff argues for affirmance that the analogy between the conditional sales contract and a chattel mortgage is far fetched, and that the cases cited by defendailt are therefore not in point. To this contention we are not prepared to accord our assent. We think there is a forceful analogy between them, as will appear from the authorities hereinafter cited.

It is patent that the Uniform Sales Act is in contravention of the common law, and that under well-settled rules must be strictly construed against those seeking relief under it. No presumptions are to be indulged de hors the proofs. Section 20 of the Uniform Sales Act, E. S. 1927, Cahill’s St. ch. 121a, If 23, provides:

“Where there is a contract to sell specific goods * * * the seller may, by the terms of the contract, * * * reserve the right of possession or property in the goods until certain conditions have been fulfilled.”

And by section 23, Cahill’s St. ch. 121a, ff 26, supra, it is provided :

“Where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell. ’ ’

And this is where the analogy between the Uniform Sales Act contract and that of a chattel mortgage security is apparent.

It was held in Bower v. Popp, 241 Ill. App. 568:

“The law of Illinois has always been that, if the mortgagee in a chattel mortgage neglects to reduce the property to possession upon the default of the mortgagor, or within a reasonable time thereafter to be determined by the circumstances of the parties, he loses his lien as against the rights of third persons, and that, as affecting the interests and liens of the latter, the mortgage becomes a void instrument.”

In Drain v. La Grange State Bank, 303 Ill. 330, it was held:

“If a vendor of a chattel delivers it to a vendee or allows him to have possession of the chattel before payment of the purchase price and to have all the indicia of ownership, retaining, however, a secret lien for payment, he cannot assert his right against a judgment creditor of the vendee without notice before a levy is made. An innocent purchaser will be protected, without regard to the terms of the contract of sale, where the appearance of ownership is in one while the title is really in another or there is a secret lien.”

Lyon & Healy v. Walldren, 201 Ill. App. 609, involved the title to a piano, in which plaintiff proved that the piano taken in the replevin writ had been sold by it to a Mrs. Butterfield, who paid on account of the purchase price five dollars and for the balance gave a conditional sale note payable in instalments, which provided that when all the payments were made the piano should be the property of Mrs. Butterfield, and until then the title of the piano should remain in plaintiff. As between the parties the contract was binding. However, the evidence showed that defendant bought the piano from a third party named Kerber, but failed to charge the defendant with knowledge, either actual or constructive, of the contract existing between plaintiff and Mrs. Butterfield, or that Mrs. Butterfield ever claimed to have owned the piano, and there were no facts or circumstances from which either in fact or law he could be deemed to be charged with knowledge that plaintiff had sold the piano conditionally to Mrs. Butterfield or anyone else, and that the possession of the piano in Kerber was prima facie evidence of his ownership, and that defendant having bought the same from Kerber without any knowledge of the rights or claims of plaintiff, took it free from any such claims, and the court said:

“A transaction similar to the instant case both on fact and legal principles was held in Harkness v. Russell, 118 U. S. 663, to bind a third party who had knowledge of the terms of the conditional sale and of the rights of the seller thereunder. Many cases from the English and other courts are cited in the opinion in the Russell case, supra, which hold to the effect that the vendee in a conditional sale takes no title until the conditions of the sale are performed, and can consequently convey no title to a third party even though such third party have no knowledge of the condition attached to such vendee’s possession. These cases are not only clear obiter dicta, as the question of the rights of an innocent purchaser was not involved in or necessary to the decision of the Russell case, supra, but such decisions are contrary to the trend of the rulings of our own courts and of the public policy which such rulings establish in this State.

“The doctrine controlling conditional sales is clearly stated in Gilbert v. National Cash Register Co., 176 Ill. 288, where the court say: ‘In Illinois “if a person agrees to sell to another a chattel on condition that the price should be paid within a certain time, retaining the title in himself in the meantime, and delivers the chattel to the vendee so as to clothe him with an apparent ownership, a bona fide purchaser or execution creditor of the latter is entitled to protection as against the claim of the original vendor,” ’ citing cases, and continuing say: ‘Whatever may be the rule in other jurisdictions, it is well settled in this State that the owner of personal property will not be permitted to sell it, either absolutely or conditionally, and still continue in possession of it. The party in possession of personal property is presumed to be the owner of it, possession being one of the strongest evidences of title to personal property. “To suffer, without notice to the world, the real ownership to be in one person and the ostensible ownership in another, gives a false credit to the latter and in this way works an injury to third persons.” ’ ”

The plaintiff in this suit, instead of adhering to the terms of the so-called conditional sales contract, permitted Golas to retain possession long after default in the payment of instalments according to the terms of the sale, and gave him an opportunity, of which he availed, to mortgage the property, and allowed the mortgage to be foreclosed and the title under the sale under such foreclosure to vest in a third party, and the title thus obtained by such third party to be conveyed to the defendant in this action. Under these circumstances possession of the defendant is prima facie evidence of ownership, and could not, so far as plaintiff is concerned, be rebutted. It was the plaintiff’s own conduct which allowed Golas to deal with the property as his own and the title thereto ultimately to be vested in the defendant without notice, express or implied, of plaintiff’s rights under the so-called conditional sales contracts.

In Albert Pick & Co. v. Spoor, 212 Ill. App. 612, 613, the court said, inter alia:

As the plaintiff by its own conduct lost title to the property involved in this suit and the defendant being an innocent purchaser of the same without either notice or knowledge in any manner of the alleged claim of title by the plaintiff, it is not entitled to recover in this suit. This is in no way in conflict with Sherer-Gillett Co. v. Long, 318 Ill. 432 — because this case comes within the exception stated that “unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell.” The plaintiff in this case was so precluded from the facts above recited.

As the jury was waived and a trial had before the court by agreement of the parties, we will do here what the trial judge should have done, and reverse the judgment of the municipal court and enter a finding and judgment here for defendant.

Judgment reversed and judgment here for defendant.

Taylor, P. J., and Wilsoh, J., concur.