author: Mr. Presiding Justice O’Connor

text:
    Anna Doran, Appellee, v. Boston Store of Chicago, Appellant.
    Gen. No. 41,249.

      Opinion filed December 23, 1940.
    Rehearing denied January 6, 1941.
    Abraham B. Litow, of Chicago, for appellant.
    Richard B. Truitt and Seago, Bradley & Vetter, both of Chicago, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal defendant seeks to reverse a judgment entered on the verdict of a jury for $2,500 in a personal injury case.

The record discloses that defendant conducts a large department store located at State, Madison and Dearborn streets, Chicago; that about 2 o’clock on the afternoon of February 23, 1938, plaintiff, who had been shopping in the store, started to walk up a stairs of four steps located between the balcony and the second floor of the store and as she was doing so slipped, fell and sustained a fracture of the right wrist. The stairway was six feet three-fourths inches wide; each step five and one-half inches high; each tread twelve and one-half inches wide.

Plaintiff testified, “I was going up those stairs and I slipped and fell. When I was falling I grasped for the railing and I found the railing wasn’t there and just went down. . . . There was no handrail there. I went to reach for one and discovered there wasn’t any. It was afterwards that I went to grasp for it and it was not there. I did not notice that fact before I started up the stairs. I was walking about a foot from the right hand side of the wall, going up.” On cross-examination, “I did not measure how close to the wall I was, except that I was close. I was not brushing it, but I was very close, as I am in the custom of walking close.”

Helen Carye and Eve Stewart were the only other occurrence witnesses. Helen Carye, called by defendant, testified that on the day of the accident she was employed by defendant in the washroom, located near the head of the stairway in question, “And when I saw this lady [plaintiff] walking up, I saw her fall all at once. She fell on both her hands. She fell on the top step, . . . almost in the middle of the step. ... I helped pick her up” Eve Stewart, a witness called by defendant, testified that on the day of the accident she was a “cosmetic demonstrator” in the salon for Elmo, at the Boston Store. “I was not working for the Boston Store. ... I was exhibiting Elmo products. I saw a lady fall on the stairway near my counter. I was facing the steps, ... I noticed her particularly because she was rather attractive, and I thought, ‘My, what a nice looking woman,’ and as I was watching her come up she reached the steps and seemed to take the first step, and then fall. She was walking up-the steps and fell up. She fell just slightly off the center. I reached out to pick her up.” Photographs of the stairs in question were introduced in evidence and are in the record before us.

The basis of plaintiff’s claim is the failure of defendant to construct and maintain a handrail as required by an ordinance of the city of Chicago. The section of the ordinance is found in the Revised Chicago Code, 1931, § 1641 (j) and is as follows: “Stairways which are less than three feet three inches wide shall have not less than one handrail, and stairways which are more than three feet three inches wide shall have not less than two handrails. Stairways which are over eight feet wide shall have double intermediate handrails with end newel posts at least five and one-half feet high at all stair landings.”

Plaintiff’s theory of the case, as we understand it, is that whether plaintiff was in the exercise of due care and whether defendant was negligent in not having a handrail on the stairs in question was the proximate cause of plaintiff’s injuries, were questions of fact for the jury.

Defendant contends the court erred in refusing to permit it to file an additional answer on the day the case went to trial, in which it sought to set up that the ordinance in question did not apply to defendant’s building because the building was constructed prior to the passage of the ordinance; that the building was constructed in 1906-7, and the ordinance is found in the Chicago Code of 1931. When the ordinance was passed does not appear from the code. The authors of the code certify that it contains the general ordinances of the city in force May 27, 1931, but it is not stated when the several ordinances were passed. If this ordinance was a re-enactment of a prior ordinance it is to be regarded as a continuation of the existing ordinance and not as the enactment of a new ordinance. (City of Altamont v. Baltimore & O. R. R. Co., 348 Ill. 339.)

Plaintiff sought to offer an ordinance on the question of stairways which, it was contended, went into effect before defendant’s store was constructed but the court was of opinion such evidence was unnecessary. But even if we assume that the ordinance became effective in 1931 and defendant’s building was constructed in 1906-7, it would avail defendant nothing for the reason that the ordinance found in the code of 1931 in reference to stairways, of which this court takes judicial notice (par. 48a, ch. 51, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.122]) provides: (Art. II, § 1200, par. (p).) “In class VII shall be included every building used for the sale at retail of dry goods and other articles of general merchandise and commonly known and described as a department store.” And par. (b), § 1639, ch. 27, which has to do with stairways provides: “Except as otherwise expressly provided in this article, it shall be unlawful to construct or maintáin any building or structure of classes I, II and VJI unless its stairway or stairways comply with the following provisions:” And par. (j), § 1641, above quoted, which requires a handrail at each side of the stairway in question.

In DeWolf v. Marshall Field & Co., 201 Ill. App. 542, which was a suit to recover for personal injuries, we held that although Field’s store was constructed in 1902 and the ordinance in reference to stairways requiring handrails' was found in the code of 1911, and plaintiff in that case was injured July 1, 1912, Field’s was required to see that there were handrails on the stairways and that the ordinance applied to “all such stairways built or to be built.”

In the instant case we hold the ordinance in question required defendant to maintain a • handrail at each side of the stairway in question and therefore the defense sought to be interposed by the offered amended answer was unavailing and the court did not err in denying defendant’s motion.

We have above stated the substance of the evidence as to how the accident happened and we think whether plaintiff was in the exercise of due care and defendant negligent in failing to have handrails on the stairway, and whether such failure was the proximate cause of plaintiff’s injury, were questions for the jury.

The question of contributory negligence, as a general proposition, is one of fact for the jury and only becomes one of law when the evidence clearly establishes that the accident resulted from the negligence of the injured party. If there be any difference of opinion on the question so that reasonable minds may not arrive at the same conclusion, then it is a question of fact for the jury. Louthan v. Chicago City Ry. Co., 198 Ill. App. 329; Kelly v. Chicago City Ry. Co., 283 Ill. 640. The same rule is applicable in determining whether the claimed negligence is the proximate cause of the injury complained of. Maskaliunas v. Chicago & W. I. R. R. Co., 318 Ill. 142.

Defendant contends the court erred in giving instructions 1 and 4 at plaintiff’s request and in refusing-defendant’s tendered instructions 1, 2 and 3.

By instruction 1, submitted by plaintiff, the jury were told “The defendant, Boston Store, owed the plaintiff as a customer in its store a duty to keep and maintain its stairways and premises in a reasonably safe condition, and to provide handrails as were' required by the ordinances of the City of Chicago.” In support of this objection it is said that the instruction was peremptory — “an abstract proposition of law,” and told the jury to find for plaintiff “merely on the violation of an ordinance.” The instruction was not peremptory; it did not direct a verdict. The instruction must be considered as one of a series.

The court at defendant’s request gave an instruction: “The Court instructs the jury that the fact that there was not a handrail on the stairs in question does not mean that you must find for the plaintiff. You must find that the lack of a handrail was the proximate cause of the accident, and if you find from the evidence that the failure of the defendant to provide a handrail was not the proximate cause of the injury to the plaintiff, then your verdict must be for the defendant.” Whatever error, if any, there was in giving plaintiff’s instruction 1, it was cured by the instruction just quoted. The facts in the case were simple and easily understood. The basis of the suit was the violation of the ordinance by defendant in failing to erect a handrail and the jury were clearly told that although there was a violation of the ordinance by defendant, plaintiff could not recover unless the jury found that the failure to have a handrail was the proximate cause of plaintiff’s injury. We think the jury were in no way misled.

Instruction 4, given at plaintiff’s request, advised the jury how they would arrive at the amount of damages in case they found for plaintiff. It is a stock instruction given in many cases. The complaint to the instruction is that if plaintiff suffered any damages, as shown by the evidence to be a direct result of the accident, “such damages should be awarded, without setting forth the duty of plaintiff to exercise care.” We think there is no merit in this contention. The jury were told in other instructions a number of times that before plaintiff could recover they must find she was in the exercise of due care for her own safety.

By defendant’s refused instruction 1, of which complaint is made, it was sought to have the jury instructed on the question of damages. It is said the tendered instruction was proper and “that there could be no recovery unless the alleged negligence was the proximate cause of the accident.” We think there was no error in the refusal of the court to give the instruction because the jury were told specifically that plaintiff could not recover unless the failure to have the handrail on the stairway was the proximate cause of the injury, and the term “proximate cause” was defined to the jury by another instruction given, at defendant’s request.

By instruction 2, defendant sought to have the jury told that while the law permitted plaintiff to testify in her own behalf, they had the right, in weighing her evidence, to take into consideration the fact that she was the plaintiff and interested in the result of the suit; and that the burden of proof was not upon defendant to show that it was not guilty of either of the specific acts charged in the complaint, but the burden was on plaintiff to prove by the preponderance or the greater weight of the evidence that defendant was guilty as charged. The second paragraph of that instruction was covered a number of times by other instructions and therefore it was not error to refuse it. While the court might well have given the first paragraph of the instruction, we think the failure to do so was not reversibly erroneous in view of the fact that the issue involved was simple and easily understood.

Defendant’s refused instruction 3 was to the effect that it was not sufficient to entitle plaintiff to recover to show a negligent breach of duty by defendant but that it devolves upon plaintiff to show further that such breach of duty was the proximate cause of the injury. This instruction was covered by others.

The judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

Hatchett and HcSurely, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois ex rel. Oscar Nelson, Appellee, v. Phillip State Bank and Trust Company et al. United States Fidelity and Guaranty Company, Appellant.
    Gen. No. 41,268.
    Opinion filed December 23, 1940.
    Eugene P. Kealy, of Chicago, for appellant.
    Markman, Donovan & Sullivan, of Chicago, for appellees; Henry O. Nickel, of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

December 9, 1931, the County Treasurer of Cook County deposited $100,000 with the Phillip State Bank & Trust Company and the bank, as security for the deposit, delivered to the County Treasurer securities of a par value of $108,000, which were afterward turned over by the County Treasurer to the First National Bank of Chicago. March 20,1932, the County Treasurer deposited another $100,000 in the Phillip State Bank and to secure this deposit, the bank gave to the County Treasurer additional collateral of the par value of $190,000, which was afterward turned over by the County Treasurer to the Central Republic Bank and Trust Company. June 21, 1932, the bank was taken over by the Auditor of Public Accounts and is being liquidated. A receiver was appointed by the Auditor and the appointment confirmed by the court. During the process of liquidation the First National Bank collected some of the securities deposited with it by the County Treasurer and paid the proceeds thereof, $22,525, to the County Treasurer. November 25, 1930, the United States Fidelity and Guaranty Company, as surety, executed the bond of the County Treasurer, as required by law. About November 3, 1939, the surety company paid to the County Treasurer, $177,475, being the balance of the $200,000 deposited in the Phillip State Bank. Thereafter, the County Treasurer assigned his interest to his claim against the bank to the surety company and in this proceeding it claims a preferential claim for $177,475.

The master to whom the cause was referred found the evidence failed to show the deposits of $200,000 were undistributed tax moneys, recommended that the right to the preferential payment be denied and the claim allowed as a general claim. Afterward, the surety company filed its intervening petition claiming it was entitled to a preferred claim on the ground that by its payment to the County Treasurer of the balance of the $200,000 deposits ($177,475) and by the assignment of the County Treasurer’s claim to it, it was subrogated to the rights of the County Treasurer. The chancellor found against the contention and followed the recommendation of the master, allowing the surety company a general claim against the assets of the bank. The surety company appeals and the receiver of the bank prosecutes a cross-appeal contending that the court should have directed- the receiver to withhold any dividends from the County Treasurer until such dividends amounted to $22,525.

Considerable evidence was introduced before the master as to the method in which the County Treasurer received the moneys and the two deposits made by him in the Phillip State Bank, all the evidence being directed to the point that the $200,000 on deposit in the Phillip State Bank was or was not undistributed tax moneys. Under the law, if the moneys were undistributed tax moneys the County Treasurer’s claim, if he were asserting it here, should be paid in preference to the general creditors of the bank. The rule of law and the reasons upon which it is based were stated by this court in People ex rel. Nelson v. Chicago Lawn State Bank, 306 Ill. App. 107, and will not be repeated here. But in the view we take of the case, the question whether the $200,000 on deposit in the Phillip State Bank was or was not undistributed tax moneys is not controlling because we hold that the right of preference of the sovereign over other depositors did not pass to the surety except to the extent that the surety is subrogated to the rights of the County Treasurer as a depositor of the bank and its claim was allowed as such. In South Philadelphia State Bank's Insolvency, 295 Pa. 433 (145 Atl. Rep. 520), it was held that priority is the exclusive right of the sovereign state, for the reason that the affairs of government must be continued. This reason does not exist in the case of an individual. In that case in a very able opinion and an exhaustive review of the authorities, Mr. Chief Justice Moschzisker in delivering the unanimous opinion of the court held, in the absence of a statute, that the right to preference over other depositors did not pass to a surety desiring subrogation to the preferential right of the state upon making good the deposit in accordance with its bond. The court said: “the sureties, who met the obligations of the king’s debtors, had only the rights of common creditors,” and “Though the State of Pennsylvania has a sovereign right of priority over all other creditors, it by no means follows that, on the facts in this case, such right would pass to one in the position of appellant. It must be remembered that appellant, a surety obtained and paid by the insolvent bank, not by the Commonwealth, claims the right to enjoy the sovereign privileges of the latter, and this under the equitable doctrine of subrogation; the right claimed is to a preference over all other depositors of the bank. Since the right of priority of the sovereign state exists pro bono populo, it follows that where a situation arises in which the State, having been paid in full, is not immediately concerned, and where the transfer of its right of priority would result in prejudice to one class of its citizens for the benefit of another, it cannot be held that the good of all the people would thus be served.” In 60 C. J., pp. 696-699, it is said: “Subrogation does not owe its origin to a statute or custom nor is it a doctrine of the common law. It originated in equity and is a creature of equity, a doctrine of equity jurisprudence which was adapted by equity from the Roman or the civil law. . ..

“The object of subrogation is the prevention of injustice. It is designed to promote and to accomplish justice, . . . and rests upon the principle that substantial justice should be attained regardless of form.”

Bouvier says: “In this country, under the initial guidance of Chancellor Kent, its principles have been more, widely developed than in England. ... It is treated as the creature of equity, and is so administered as to secure real and essential justice without regard to form.... It is broad enough to include every instance in which one party pays a debt for which another is primarily answerable, and which in equity and good conscience should have been discharged by the latter.”

In the instant case the surety’s contracts required it to make good any loss sustained by the County Treasurer on account of the two deposits in the Phillip State Bank. The surety has met this obligation by making payments, and having carried out its written contracts for which it was paid, it would be highly inequitable to permit the surety’s claim to be paid in full out of the assets of the bank and the other depositors receive little or nothing.

As to the receiver’s cross-appeal.

Counsel for the receiver say the County Treasurer, having filed an intervening petition in the liquidation proceeding “for a determination of whether or not moneys deposited with the Phillip State Bank and Trust Company were undistributed tax moneys, is required to do equity, and it having been established that $22,525 of the general assets of the Phillip State Bank and Trust Company were illegally paid to the County Treasurer in fraud of the rights of the other creditors, a court of equity has the power to direct the Receiver ... to withhold dividends from the County Treasurer, . . . until the . . . $22,525 has been restored, and that, thereafter, all dividends accruing may then be paid to the County Treasurer or his assignee.” The basis of this contention is that the evidence shows that a few days after the Phillip State Bank closed, the First National Bank of Chicago paid to the County Treasurer $22,525, being the proceeds of collateral which had been deposited by the Phillip State Bank with the First National Bank to secure the deposit of the County Treasurer, as above stated, and it is argued the pledging of these assets was ultra vires, null and void and People v. Wiersema State Bank, 361 Ill. 75, is cited. On the other side, counsel for the surety company says this claim of the receiver “seems to have originated, for the first time in the objections filed ... to the Master’s Report on July 14, 1939;” that in the original answer filed by the receiver in 1937 to the intervening petition of the County Treasurer, who was seeking to have his deposits held to be a preferred claim on the ground that they were undistributed tax moneys, no mention was made of this claim of $22,525 and no such claim was made before the master. Counsel further says the matter was adjudicated in a suit brought by the receiver against the First National Bank, the Central Republic Trust Company, and the County Treasurer in the Superior Court of Cook County in 1932, in which suit the receiver sought to recover the collateral pledged to secure the deposits made in the Phillip State Bank, and that before the institution of the suit by the receiver, and before any demand was made by the County Treasurer on the First National Bank for return of the collateral, the First National Bank had paid to the County Treasurer the $22,525 which it had collected from the securities deposited. It is further said that in the Superior Court the receiver asked for and obtained an order to dismiss that suit in consideration of the delivery of all cash and securities to him by the First National and the other bank, and that order which is in the record before us specifically mentions the payment of the $22,525. The order provided further that upon the return of the securities to the receiver, no further claim would be made against the First National Bank of Chicago, all claims having been released by the receiver.

It further appears that afterward the requirements of that order were met by the First National Bank and the securities returned.

In view of the state of the record, we think the decree of the Superior Court of Cook County ought to be, and it is affirmed.

Decree affirmed.

Matchett and McSurely, JJ., concur.


text:
    Charles H. Albers, Receiver, Appellee, v. Andrew H. Dressel et al. Andrew H. Dressel and Julia Schanze, Appellants.
    Gen. No. 41,304.
    Opinion filed December 23, 1940.
    Julian C. Ryer and Clarice B. Richie, both of Chicago, for appellants.

      John E. Johnson and John R. Wall, both of Chicago, for appellees.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal certain defendants seek to reverse two decrees entered in foreclosure suits which have been consolidated for hearing upon one set of abstracts and briefs.

One of the suits was to foreclose a trust deed given by Andrew H. Dressel on one-half of his farm to secure an indebtedness of $45,000, and the other to secure an indebtedness of $35,000 on the other'half of the farm.

Counsel for defendants in this court say, “There is no question made by this record in this cause upon the evidence. The matter was tried before Master in Chancery, a report by such Master culminating in a decree of sale.

“The question here involved is one of pleading. . . . There is no allegation of possession or ownership or right, title or interest in and to the note and indebtedness in question alleged to be set forth in either of the complaints. ’ ’

In support of defendants’ contention counsel say, “The one question involved in this proceeding is the failure of the pleadings to show any ownership or title to the chose in action. A careful scrutiny of the pleadings, to wit: the original bill of complaint in the Superior Court case and the amended bill of complaint in the Circuit Court case fail utterly to show any right, title or claim in the plaintiff against the defendant or any title or ownership of the note in question to be in the plaintiff.” The argument seems to be that because of the failure to allege ownership of the notes and trust deed the decree cannot stand although the evidence may show the ownership of the notes.

This is all the argument in the brief and no reference

is made to any particular allegations of the bills, but we are left to search the record to see whether counsel’s argument is supported after we examine the complaints. It is not the duty of the court to search through the record to see if it can find errors in the allegation. This is the work of counsel and the decrees appealed from might be affirmed without saying more. However, we have looked into the allegations of the complaints and find that each was brought by the receiver of a bank which was being liquidated, and in each copies of the notes and trust deed were attached to and made a part of the complaint and the receiver alleged they would be produced in open court. In one complaint it was alleged the receiver was the owner and. holder of the principal note on which there was a balance of $40,000 due and unpaid, and in the other complaint it was alleged there was now due the complainant $35,000 on the other mortgage indebtedness. There is no merit in the contention. The production of the notes by plaintiff in the two suits was prima facie evidence of ownership in plaintiff. Henderson v. Davisson, 157 Ill. 379; Dillon v. Elmore, 361 Ill. 356; Kazunas v. Wright, 286 Ill. App. 554. No objection having been raised in the trial court to the sufficiency of the pleadings, it cannot be urged for the first time in a court of review. Brandtjen & Kluge, Inc. v. Forgue, 299 Ill. App. 585; Replogle v. Scott, 299 Ill. App. 270.

In the Brandtjen & Kluge, Inc., case we said: “The sufficiency of the statement of claim may not be raised for the first time in the Appellate Court. Sec. 42 of the Civil Practice Act, ch. 110, par. 166, Ill. Rev. Stats. 1937, provides: ‘ (3) All defects in pleadings, either in form or substance, not objected to in the trial court, shall be deemed to be waived.’ ” To the same effect is Addante v. Pompilio, 303 Ill. App. 172; Toman v. Park Castles Apt. Bldg. Corp., 303 Ill. App. 205; Grau v. Travelers Ins. Co., 303 Ill. App. 212.

The ground alleged for reversal is frivolous and wholly without merit and it is clearly apparent the appeals were prosecuted merely for delay

The decrees appealed from are affirmed.

Decrees affirmed.

Hatchett and HcSurely, JJ., concur.


author: Mr. Justice McSurely

text:
    Joseph P. Lewis et al., Appellants, v. West Side Trust and Savings Bank of Chicago et al. Jack Cohen (Also Known as John M. Cohen), Appellee.
    Gen. No. 41,235.

      Opinion filed December 23, 1940.
    Rehearing denied January 6, 1941.
    Gold & Liebman and Philip H. Mitchel, both of Chicago, for appellants; Charles Liebman, Philip H. Mitchel and Maurice E. Kraines, of Chicago, of counsel.
    Soll J. Schnitz, of Chicago, for appellee; Soll J. Schnitz, Isador Becker and Morris K. Levinson, both of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is a bank stockholders’ liability suit in which the trial court vacated a judgment against John M. Cohen. Plaintiffs appealed to the Supreme Court, which transferred the case to this court holding that no constitutional question was involved. (373 Ill. 245.) The question presented is whether the trial court was justified in vacating the judgment.

We follow the statement of facts given in the Supreme Court opinion. December, 1934, plaintiffs as creditors of the West Side Trust & Savings Bank, then in the hands of a receiver, brought a suit in the superior court of Cook county to enforce the liability of the stockholders of the bank; among these appeared the name of “B. Cohen & Sons” as the owners of 22 shares of the bank stock; they were sued and summoned under such name “by leaving a copy with John M. Cohen a co-partner in B. Cohen & Sons, a co-partnership.” No appearance was filed and in May, 1935, judgment was rendered against “John M. Cohen, co-partner of B. Cohen & Sons, defendant herein” for $2,200. Execution was issued and returned unsatisfied. In October, 1937, the receiver filed a creditors’ bill against John M. Cohen and others seeking to satisfy the judgment; Cohen appeared in that proceeding and filed a motion to quash the summons; the receiver filed a cross-motion to strike, which was allowed in February, 1938, and the motion of Cohen to quash the summons was denied.

February 6, 1939, “Jack M. Cohen” filed a petition in this case alleging that his name is “Jack M. Cohen” and that he had never gone under the name of John M. Cohen and, moreover, that any judgment against him, individually, would be void when the bank stock was owned by and the suit was brought against B. Cohen & Sons, a co-partnership consisting of several individuals, and the petition prayed that the judgment entered May, 1935, be vacated. The petition was denied February 27, 1939, but on March 27, 1939, this order was vacated and leave was given to file a further petition to vacate. This petition presented by Cohen’s attorney asserted it was contrary to law to sue a partnership as an entity without naming all the individuals constituting such partnership and that a judgment entered against one partner would be void ab initio because the court lacked jurisdiction of the parties. Plaintiffs moved to strike this petition but the court overruled the motion and entered an order that the judgment against John M. Cohen, copartner of B. Cohen & Sons, entered May 14, 1935, be vacated as absolutely void. Plaintiffs appeal from this order.

Defendant Cohen first argues that the judgment against “John M. Cohen” is void because his name is “Jack M. Cohen.” There is no merit in this point. In Pond v. Ennis, 69 Ill. 341, a minor defendant was summoned as “Eoline Juliather” instead of by her correct name, “Collin Moffitt”; the court held that the only question of importance was whether she had legal notice of the proceedings, saying: “It is entirely immaterial by what names they were sued and summoned, the essential question being, were the persons interested served with process? Names are nothing. The gist of the matter is, were the parties in interest actually served. If the real party is served, even under a wrong name, he must take advantage of that on the trial. ’ ’ In Pennsylvania Co. v. Sloan, 125 Ill. 72, where the defendant was sued by a wrong name, it was held that where the real party in interest is served with process, “even though under a wrong name, he must take advantage of the misnomer by plea in abatement in such suit; and, if he does not, he will be concluded by the judgment or decree rendered the same as if he were described by his true name.” This court will take judicial notice that the names “John” and “Jack” are the same; that “Jack” is the usual nickname for “John.”

Moreover, as stated above, it appears from the answer of the receiver to the petition of defendant filed February 6, 1939, that the receiver on October 27, 1937, filed a creditors’ bill against John M. Cohen and others, seeking to satisfy the judgment theretofore entered; that the summons in that' case was served upon “John M. Cohen and the said John M. Cohen filed his appearance in the said proceeding”; that thereafter John M. Cohen filed a motion to quash the summons in the creditors’ proceeding, which motion was denied. Apparently, in that proceeding defendant appeared under the name of John M. Cohen.

The record in the instant case shows the summons was personally delivered to Jack M. Cohen; that he was a partner in B. Cohen & Sons and was the person intended to be served. If he objected to the sufficiency of the service he should have appeared in court and moved for appropriate relief. It is too late after almost four years have passed to raise the point for the first time.

A more difficult question is presented where the name of the partnership, only, is mentioned in the bill and the summons, and service is had upon one of the partners not named in either the bill or the summons. Defendant in his brief concedes that if all the members constituting the partnership of B. Cohen & Sons had been individually named in the bill and the summons, service on one of them would have conferred on the court jurisdiction of his person,, but argues that because only the firm name is used the court does not obtain jurisdiction of a partner who is actually served with summons. We find no cases dealing with precisely similar facts. Defendant cites Sinsheimer v. William Skinner Mfg. Co., 165 Ill. 116, where it was held that where the declaration shows on its face that a partner then living and not made defendant who is jointly liable on a contract with the party sued, the defendant may take advantage of the nonjoinder by demurrer, motion in arrest or by writ of error. In Werner v. W. H. Shons Co., 341 Ill. 478, a judgment was entered against W. H. Shons Co.; the service of summons as shown by the return was on an alleged agent of the company. It was held that the record did not show whether the defendant was a partnership, a corporation or an individual doing business in that name, and the return of the sheriff that he had read the summons to ‘ Ernest Basey, an agent,” of the Shons company, was insufficient to give jurisdiction of the company.

All of the cases cited by defendant deal with the question of whether there was error or irregularity in the proceedings. Plaintiffs admit there might have been error in the proceeding that could have been taken advantage of within the required time and by the proper method, but argue that the judgment is not therefore necessarily void.

The case more nearly approaching in principle the one here involved is Franklin Union No. 4 v. People, 220 Ill. 355. There the plaintiff, called the Chicago Typothetae, was an unincorporated association composed of certain individual members; these were not parties to the proceeding either by their individual names or by representation; plaintiff obtained an injunction, which was violated, and certain officers and members of Franklin Union No. 4, defendants to the bill, were held by the chancellor to be in contempt of court; upon appeal from that order it was urged there was no proper party plaintiff in the lower court and therefore the court had no jurisdiction to enter the injunctional order. In the opinion the Supreme Court said since it appeared that the Chicago Typothetae was not an actual or artificial person, “had the question of its capacity to sue been raised by a demurrer to the bill or by a motion to dissolve the injunction upon the face of the bill, there would have been some force in the position that the bill was defective for want of proper parties”; that even though there was a defect of parties, that fact did not deprive the court of jurisdiction and its orders would not have been void. The opinion also quoted with approval from other decisions to the effect that the absence of proper dr necessary parties is not a defect involving the jurisdiction or power of the court over the parties who are present and said if a bill could be amended it was not void and “the court did not fail by reason of the want of parties or otherwise, to obtain . . . jurisdiction of the parties . . . for the purpose of making the order.” See also Ives v. Muhlenburg, 135 Ill. App. 517.

No convincing argument or cited cases have been presented in support of the proposition that, although the individual Jack M. Cohen, one of the partners in B. Cohen & Sons, was served with summons and might have raised the question of any defect in the proceedings by proper and timely action, the court had no jurisdiction of him, and any judgment rendered in such proceeding is absolutely void. Such position is not in accord with justice. When he failed to take advantage of any irregularity in the original proceedings, either by .demurrer or plea, he waived any errors.

Plaintiffs properly say the court had no jurisdiction to entertain any petition to vacate the judgment, even though it may have been erroneous, after the time for filing a plea or appeal had expired. After the expiration of 30 days after the entry of the decree of May 14, 1935, the court lost jurisdiction to vacate the judgment. Ill. Rev. Stat. 1939, ch. 77, pars. 82, 83 and 84 [Jones Ill. Stats. Ann. 104.099-104.101]. The time for filing an appeal expired after one year. Ch. 110, § 76.

The contrary argument of defendant assumes that the judgment rendered against him was void ab initio. We have held otherwise. Paragraph 150, ch. 110, provides that no action shall be defeated by nonjoinder or misjoinder of parties and that proper parties may be added at any stage of the cause. It would have been a simple matter for defendant, by proper proceedings, to call attention to any failure to name in the bill and summons all the copartners of B. Cohen & Sons when the plaintiffs could have supplied this omission and obtained judgment against all of them. Defendant cannot at this late date, almost four years after judgment, raise for the first time the question of the jurisdiction of the court as to him when he concedes his partnership and that service on him would have been valid provided his copartners were named as partners.

For the reasons indicated the order of the trial court vacating the judgment of May 14,1935, is reversed and the judgment should be left to stand as originally entered.

Reversed.

O’Cohnor, P. J., and Matchett, J., concur.


text:
    Harry Berryman, by Lillian A. Seidel, His Mother and Next Friend, Appellant, v. Highway Trailer Company, Appellee.
    Gen. No. 41,264.
    Opinion filed December 23, 1940.
    Irving J. Siegal, of Chicago, for appellant.
    Goldman, Allshouse & Healy, of Chicago, for appellee; Egbert G. Dreeeein and Maurice M. Loman, both of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff, by his mother and next friend, brought suit for the rescission of a sales contract made with defendant for the purchase of a highway trailer and for the recovery of $450.71 paid on account; defendant filed a plea of recoupment asserting damages to the trailer while it was in possession of plaintiff. Upon trial by the court plaintiff’s damages were assessed at $450.71; the court also found for defendant on its plea of recoupment and assessed its damages for the same sum claimed by plaintiff, namely, $450.71. Plaintiff appeals from the judgment on the findings.

April 29, 1938, plaintiff entered into a contract to purchase from defendant a trailer for $2,112.87; $300 was paid on account on that date and subsequently $150.71 in instalments was paid. The instalment of the purchase price falling due in September was in default and defendant repossessed the trailer as provided for in the contract.

Although there was some slight question as to plaintiff’s age at the time the contract was made, it was established that he was, according to the testimony of his mother, 20 years old at the time. He represented* to defendant that he was 23 years of age and testified he made this misrepresentation because he knew if he told defendant his correct age it would not sell the trailer to him. There was evidence that in appearance he was 23 years of age; that he had been supporting himself for three years prior to this time and was purchasing the trailer to engage in an independent trucking business on his own account. There was also in evidence a certified copy of plaintiff’s application for a chauffeur’s license filed with the Secretary of State March 30, 1939, in which he stated under oath that he was born October 25, 1915, which would make him 23 years of age at the time of the purchase of the trailer. Usually a minor may rescind a contract entered into by him and recover moneys paid by him on the contract. Burnet v. Chapin, 274 Ill. App. 186, and cases there cited.

There is no evidence of any defect in the truck, and no such claim is made. The controverted question is whether defendant under these circumstances may be allowed to recoup its damages. There was undisputed evidence that plaintiff used the trailer in his business and by reason of such use it deteriorated in value from $2,112.87 to $1,000, and that it was subsequently sold for $1,378.27. The trial court found that defendant had been damaged in an amount greater than the sum sought to be recovered by plaintiff and held that plaintiff should make good that loss to the extent of the amount plaintiff might recover.

While this is ostensibly a suit at law, in many cases it has been held that equitable principles should be applied in determining the rights of the parties in such cases. In the old case of Davidson v. Young, 38 Ill. 145, 150, it was held that an infant is responsible in damages for his frauds and where he falsely alleges himself to be of age for the purpose of inducing another person to purchase and take a deed of •his lands, he would be liable to respond in damages for any injury which might result to the purchaser in consequence of the deceit. Other cases to the same effect are Petit v. Liston, 97 Ore. 464; Gaither v. Wallingford, 101 Ore. 389; Murdock v. Fisher Finance Corp., 79 Cal. App. 787, 251 Pac. 319; Sparandera v. Staten Island Garage, 193 N. Y. S. 392; Creer v. Active Auto Exch., 99 Conn. 266. In Rice v. Butler, 160 N. Y. 578, it was said, ‘ ‘ The privilege of infancy is to be used as a shield and not as a sword. He cannot have the benefit of the contract on one side without returning the equivalent on the other.”

The facts in the case of Myers v. Hurley Motor Co., 273 U. S. 18, are like those now before us. The opinion goes extensively into the question as to whether an infant entering into a sales contract for the price of an automobile is estopped from bringing an action to recover the amount paid. It was held that the action could be maintained. But the court, with the examination of many cases, went into the question whether defendant may set off against plaintiff’s claim the amount it had paid for the repair of the damaged automobile, or so much thereof as will equal plaintiff’s claim. The opinion asserted that in such a case equitable principles should be applied and held, supported by numerous authorities, that it is well settled the relief of the defendant is by way of recoupment; “that the amount of defendant’s damage can be allowed only in abatement or diminution of plaintiff’s claim — and that defendant cannot, at least in that action, recover any excess.” See also Story’s Equity Jurisprudence, 14th Ed. Vol. 1, § 99, and Pomeroy’s Equity Jurisprudence, 3rd Ed. Vol. 1, § 398.

Cases cited in opposition can be distinguished. The decision in Burnet v. Chapin, 274 Ill. App. 186, turned upon the fact that defendant did not rely on the minor’s representation of his age, which could have been easily ascertained by a superficial investigation. Moreover, the opinion states there was not a scintilla of evidence that defendant had suffered any damage by the disaffirmance of the contract. In Hunter v. Egolf Motor Co., 268 Ill. App. 1, cited by plaintiff, the opinion states it was clearly established that the automobile sold was not obtained by fraud, and the minor sought to rescind the contract because of a defect in the automobile.

We are of the opinion that the weight of authority and the better reasoned cases support the right of defendant in this case to recoup its damages. The judgment of the trial court was proper and is affirmed.

Judgment affirmed.

O’Cohnor, P. J., and Matchett, J., concur.


text:
    David Silbert et al., Appellees, v. Dan L. Laser et al., Trading as Marks, Laser and Company, and General Carpet Corporation. William G. Diamond, Trustee in Bankruptcy of Estate of General Carpet Corporation, Intervenor, Appellant.
    Gen. No. 41,289.
    Opinion filed December 23, 1940.
    Chapman & Cutler, of Chicago, for appellant; Boscoe C. Nash and Dayton Ogden, both of Chicago, of counsel.
    Myer H. Gladstone, of Chicago, for appellees.
   Mr. Justice McSurely

delivered the opinion of the

court.

Plaintiffs brought suit to recover damages alleged to have been sustained by them on purchases of shares of stock of the General Carpet Corporation sold in violation of the Illinois Securities Law, Ill. Rev. Stat. 1939, ch. 121½, par. 132 [Jones Ill. Stats. Ann. 13.48]. The three plaintiffs alleged several and distinct claims, but the several dealings occurred at substantially the same time. Plaintiff David Silbert purchased 1,000 shares, plaintiff Belle Silbert, 400 shares, and Helen Postelnek, secretary to David Silbert, 100 shares, all at $3.75 per share.

Prior to the trial defendant General Carpet Corporation was adjudged a bankrupt and "William G. Diamond, trustee in bankruptcy, intervened and defended. All the other defendants, on motion of plaintiffs, were dismissed.

Plaintiffs alleged that they bought shares of the General Carpet Corporation through Marks, Laser & Company, a brokerage firm; that in making these sales the brokerage house was the agent for the General Carpet Corporation; that the shares in question were not qualified as required by the Illinois Securities Law and hence plaintiffs were entitled to disaffirm the sale and recover from the carpet corporation the amount paid for the shares and their attorney’s fees. Upon trial by the court there was a finding in favor of plaintiffs, judgment was entered against the General Carpet Corporation and in favor of David Silbert for $4,417.67, Belle Silbert, $1,766.67, and Helen Postelnek $441.67 — aggregating $6,626.01.

Defendant asserts that Marks, Laser & Company were the owners of the stock and not the agents of the General Carpet Corporation in making these sales. This presents a question of fact.

The carpet corporation was organized under the laws of Pennsylvania and was a consolidation of several eastern carpet manufacturers. In the early part of 1937, it was sought to finance the company through the sale of shares of common stock. Defendant says an agreement was made between B. E. Buckman & Co. of Madison, Wisconsin, and the carpet corporation looking to the purchase by the former of 100,000 shares of carpet corporation, stock with an option on 200,000 more. The agreement permitted Buckman & Co. to transfer or assign all or part of its shares to other security dealers, and defendant says substantial blocks were delivered by Buckman & Co. to Marks, Laser & Company, which included the shares purchased by plaintiffs. Defendant argues that Marks, Laser & Company, in taking over stock from Buckman & Co., were underwriting a portion of the issue of stock which Buckman & Co. had agreed to take and which it was permitted to assign to brokers.

Defendant also stresses a number of items of evidence which it claims show that Marks, Laser & Company were the owners of the shares sold to plaintiffs. The stock certificates issued to plaintiffs read that “Marks, Laser & Company is the owner of one hundred shares,” etc.; that these certificates bore the usual assignment form on the reverse side transferring all of the interest of Marks, Laser & Company in the shares of stock to the respective plaintiffs; that these assignments purport to pass the title of Marks, Laser & Company, not as agent but as the principal. Also, in the memorandum confirming the sales to plaintiffs the printed words referring to the sale as made by “your broker” were deleted so that the document reads, “We have this day sold to you as principal upon your order ...” Defendant introduced conversations and statements to show that the sale of the stock was by Marks, Laser & Company as owner and not as agent of the carpet company.

Plaintiffs on the other hand call attention to the Federal Securities Law of 1933, as amended (15 U. S. C. A. 77a to 77aa), requiring in the prospectus offering stock to the public, issued and published as demanded by the act, a disclosure of the names and addresses of the underwriters. The prospectus issued by the carpet corporation names B. E. Buckman & Co. as principal underwriter and Eugene J. Hynes & Co., Inc., associate underwriter. No disclosure was made to the public or to anyone that Buckman & Co. had assigned a portion of its commitment to Marks, Laser & Company. Plaintiffs’ counsel argues that if this had been done that fact should have been disclosed to the Securities and Exchange Commission, and in the prospectus, and because such disclosures were not made, Marks, Laser & Company were not associate underwriters under the Buck-man contract.

Plaintiffs say Marks, Laser & Company merely took subscriptions for stock as agents. On the next day after the purchase by plaintiffs, Marks, Laser & Company issued and mailed a statement to David Silbert which recites that his stock account has been debited with the amount of the purchase, “a/c subscription 1000 General Carpet,” and the New York office of Marks, Laser & Company mailed a memorandum to Silbert reciting that his stock account had been credited with $3,750 as “payment of General Carpet subs.”

Silbert testified he “subscribed” for himself and his wife for the shares of stock, and he received through the mail from Marks, Laser & Company an acknowledgment of his “subscription” for 1,000 shares of General Carpet and that his “subscription” was transferred to the New York office. He further testified that when he was first solicited to subscribe to the capital stock of the carpet corporation he asked Morton Weil, a partner of Marks, Laser & Company, about the carpet company which “your firm is taking subscriptions for.”

Weil testified that Marks, Laser & Company were taking subscriptions to the stock of the carpet corporation, and Isaac Bice, who was a director of the carpet corporation and chairman of its finance committee, and also its secretary, testified that Marks, Laser & Company would call him in New York “every day or so and give me the total of the subscriptions. ’ ’

In a conversation between Weil and Bice in Chicago in April, 1937, Bice expressed some anxiety over a statement of a member of the firm of Buckman & Co. that they would not take down any stock until conditions showed material improvement. At the same time Bice asked Weil if Marks, Laser & Company would act as agents for the carpet corporation. Weil said he would talk it over with some of his partners, and he discussed the proposition with them. The following day he told Bice that Marks, Laser & Company would agree to act for the carpet corporation in accepting subscriptions for their stock and forward these to Bice, chairman of the finance committee in New York. Eventually Buckman & Co. failed to take the shares described in the underwriting agreement.

Weil testified that his company “never purchased any securities for its own account. It only acted as agent in all circumstances.”

There is no evidence that the carpet corporation ever considered the taking of subscriptions by Marks, Laser & Company as underwriting or as any assignment of any part of Buckman’s contract.

When we examine the alleged contract by which defendant claims an underwriting agreement with Buck-man & Co. we find substantial reasons for concluding that it does not bind Buckman & Co. to purchase stock of the carpet corporation unconditionally. The original contract was between B. E. Buckman & Company, as one party, and the Alva Carpet and Bug Company and Parker-Wylie Carpet Manufacturing Company as the other parties. These carpet companies were subsequently merged into the General Carpet Corporation. Counsel for defendant assert the General Carpet Corporation assumed this contract by a writing which has been introduced in evidence. The alleged signature of the General Carpet Corporation appears on the contract as follows:

“Dated.......................... 1937.
General Carpet Corporation,
By .............................
........... President.
“Attest:
Secretary. ’ ’

Apparently neither the president nor secretary nor any other officer of the carpet company signed this paper. Its binding force may well be questioned.

Moreover, the contract contains provisions which negative the claim that Buckman & Co. agreed to purchase the stock unconditionally. In a letter from Marks, Laser & Company, Rice of the carpet company was informed that this contract might be construed as giving Buckman & Co. “unusual facility in withdrawing from the picture.” It was provided by this contract that Buckman & Co. would “receive reasonable compensation for their services.” Compensation for services is incompatible with the idea of purchasing the stock unconditionally. There was also a provision which permitted the underwriter, without any liability, to terminate the agreement when in its ‘1 sole judgment” it was inadvisable to offer the stock at public sale. There were also other items of evidence tending 'to support the position of the plaintiffs that Marks, Laser & Company in making the sales of stock were acting as agents for the carpet corporation.

Defendant seems to rely largely upon the language of the certificates of stock issued to plaintiffs wherein Marks, Laser & Company is described as “the owner” of the shares. Weil testified that the funds received from the sale of stock were sent to the New York office of the General Carpet Corporation and, “on account of the tax situation in New York, certificates were issued in the name of Marks, Laser & Company,” who would transfer them to the name of the actual subscriber. Rice of the carpet corporation wanted the certificates issued in the name of the individual subscribers so that the carpet corporation could show a reasonable number of stockholders, which would entitle the company to be listed on the board of trade. There were some conferences on the question in whose name the certificates should appear, and it was finally agreed they should be issued in .the name of Marks, Laser & Company and then transferred to the name of the subscriber.

From the entire record before us, we are of the opinion it is conclusively shown that Marks, Laser & Company never invested any money of theirs in the stock of the General Carpet Corporation nor purchased any of the stock on their own account, and that in the transactions in question they were acting as agents.

Defendants argue it is not sufficiently proved that plaintiffs paid for the shares of stock. The stock certificates issued to plaintiffs recite that they are fully paid.

David Silbert testified he and his wife, Belle Silbert, had a joint account with Marks, Laser & Company and at his request this account was charged with the amount of his and his wife’s purchases of stock. There was also a memorandum in evidence from Marks, Laser & Company to David Silbert stating they had credited his stock account with payment for the General Carpet subscription. About this time Silbert’s credit balance with this firm was between $10,000 and $20,000. Helen Postelnek also had an account with Marks, Laser & Company and her 100 shares were paid for out of this account. This is much like the method of payment that was considered by this court and held sufficient in Mee v. Marks, 304 Ill. App. 370.

Defendant argues that error was committed by the trial court in its rulings on evidence. We find nothing in this respect of sufficient importance to justify a reversal. Some rulings by the court might be criticized but they were for the most part made in sustaining objections by the attorney for defendant. For instance, when Weil was asked if his company, Marks, Laser & Company, had received payment for the stock sold to plaintiffs, and answered in the affirmative, objection was sustained on the ground this was a conclusion of the witness. It might be said in passing that most of the testimony given by witnesses is the result of “conclusions.”

No question is raised on this appeal as to the violation of the Illinois Securities Law in these sales to plaintiffs, nor is there any question raised as to the amount of attorney’s fees allowed.

The facts appearing justified the conclusion of the trial court and, as there were no reversible errors upon the trial, the judgment is affirmed.

Judgment affirmed.

O’ComsroR, P. J., and Matchett, J., concur.


author: Mr. Justice MgSurely

text:
    Hartha De Lia et al., Appellants, v. Clarence A. Toolen et al. John Joseph Marshall, Appellee.
    Gen. No. 41,320.

      Opinion filed December 23, 1940.
    Rehearing denied January 6, 1941.
    Joseph M. Schachner and Henry Shabsin, both of Chicago, for appellants.
    Clarence A. Toolen, of Chicago, for appellee.
   Mr. Justice MgSurely

delivered the opinion of the court.

Plaintiffs filed a complaint alleging they were the owners of certain bonds of an issue secured by a trust deed conveying real estate; that defendants John Joseph Marshall and others planned to cheat and defraud them, and they asked for certain relief.

Defendant Marshall filed a counterclaim asking that plaintiffs be permanently enjoined from commencing any suits against him to enforce the collection of any of the aforesaid bonds and from interfering with his peaceable possession of the premises described in the trust deed. The trial court entered a decree in accordance with the prayer of the counterclaim, and plaintiffs appeal from this.

Plaintiffs filed a number of complaints, the first on April 19,1938. Plaintiffs asked for a change of venue from Judge Klarkowski, which was granted; the cause was reassigned to Judge Dunne; on motion of defendants the first complaint was stricken; an amended complaint was filed July 18, 1938, and again on motion this was stricken, and a third amended complaint was filed July 3, 1939. Defendant Marshall filed his answer denying any wrongdoing. When the cause came on for hearing plaintiffs asked for a change of venue from Judge Dunne, which was denied, and they were ordered to proceed to trial, which they refused to do.

Marshall was thereupon ordered to proceed with proof of his counterclaim, and evidence was heard which showed he was the. owner of the premises described in the complaint; that in March, 1917, he had executed a lease of them to Frank A. Carelin and George A. Manos for 99 years, which lease was recorded in the recorder’s office of Cook county; that subsequently by mesne conveyances, Gustav Tatter and Suzanna Tatter, his wife, acquired the interest of the lessees in the lease; that April 15,1923, the Tatters executed a trust deed conveying their interest in the leasehold to the Chicago Title & Trust Co., as trustee, to secure first mortgage bonds for $65,000.

Subsequently the Forest Park Transfer Block Building Corporation acquired the interest of the Tatters in the leasehold estate; that there were various defaults in the terms of the lease, which was terminated by Marshall; suit for possession was instituted by him in the superior court of Cook county and he had judgment; that he obtained possession of the premises October 20,1937; that shortly thereafter Marshall took possession of the premises and has been in possession ever since. The court found that the premises had been forfeited to the State of Illinois for the nonpayment of special assessments and Marshall had redeemed the premises by paying all special assessments, aggregating over $2,000, together with the general taxes for five years, aggregating over $5,000. The decree also found that none of the plaintiffs had offered to repay any of these sums or any part thereof to Marshall.

Plaintiffs’ third amended complaint alleged in general terms that the interest of Carelin and Manos in the leasehold was acquired by Basil Maxant and desiring to avoid any personal liability, Maxant had the lease assigned to the Tatters, who subsequently executed the trust deed securing the mortgage loan of $65,000. Plaintiffs ¿sserted they owned $4,500 of these bonds; that in furtherance of Maxant’s plan to cheat and defraud plaintiffs, he entered into an agreement with Marshall and Clarence A. Toolen, his agent, whereby the lease was to be terminated by reason of default in the payment of the taxes, and that in pursuance of this scheme Marshall instituted a forcible entry and detainer suit in the superior court and obtained judgment for possession.

The record justified the conclusion of the trial court that plaintiffs were engaged in useless and vexatious litigation. When called upon to prove their charges they refused to proceed to a hearing. Under these circumstances the only thing the court could do was to take evidence upon the counterclaim, which justified the injunctional order against plaintiffs. Plaintiffs did not produce any evidence in opposition.

Plaintiffs argue that the counterclaim stated no cause of action. They made no motion to strike this or to question its sufficiency. This point, therefore, cannot be raised in this court for the first time. Addante v. Pompilio, 303 Ill. App. 172; Toman v. Park Castles Apt. Bldg. Corp., 303 Ill. App. 205; Grau v. Travelers Ins. Co. of Hartford, Conn., 303 Ill. App. 212; Wells v. Wise, 298 Ill. App. 252, and Professor Millar, 28 Ill. Law Review, 460, 463. Chapter 110, § 42, par. 166, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.042], provides that defects in pleadings in form or substance not objected to in the trial court shall be deemed to be waived.

The counterclaim informed plaintiffs that Marshall had established his right to possession of the premises by the judgment in the forcible detainer suit, and the evidence supported the averment that the proceedings by plaintiffs were calculated to cause him loss and injury. Under such circumstances the court had jurisdiction to enjoin this useless and vexatious litigation. Pratt v. Kendig, 128 Ill. 293, 298.

Other technical points are made by plaintiffs but they are without merit. The injunctional order was proper and is affirmed.

Order affirmed.

O’Connor, P. J., and Hatchett, J., concur.


author: Mr. Justice MoSurelt

text:
    Mary Flanagan et al., Appellants, v. First National Bank of Chicago, Appellee.
    Gen. No. 41,328.

      Opinion filed December 23, 1940.
    Aaron Soble and John C. DeWolfe, both of Chicago, for appellants; Jerome S. Klein, of Chicago, of counsel.
    Amberg, Livingston, Kearns & Dahlin, of Chicago, for appellee; John W. Kearns and Frank L. Paul, of Chicago, of counsel.
   Mr. Justice MoSurelt

delivered the opinion of the court.

Plaintiffs are representative creditors of the Madison Square State Bank, which was closed by the auditor of public accounts on June 15; 1932; they brought a suit to enforce a stockholders’ liability and February 11, 1937, had a decree against the First Trust and Savings Bank, trustee, for $10,000; June 22, 1939, the present suit was filed by the same plaintiffs tó enforce the collection of this decree from defendant, the First National Bank of Chicago; answer was filed by the defendant bank and upon hearing of the complaint and answer and a stipulation as to certain facts, the trial court ordered plaintiffs’ suit dismissed for want of equity and they appeal.

The facts as shown by the pleadings and the stipulation are that January, 1927, the First Trust and Savings Bank entered into a trust agreement with Morris Metcoff whereby it agreed to hold 100 shares of his stock of the Madison Square State Bank in trust; February, 1929, the First Trust and Savings Bank consolidated with the Union Trust Company; the consolidated institution was named First Union Trust and Savings Bank, and this institution succeeded the First Trust and Savings Bank as trustee of the Metcoff trust; in July, 1933, this First Union Trust and Savings Bank consolidated with the First National Bank of Chicago. In September, 1932, prior to the consolidation with the defendant bank, Metcoff terminated the trust agreement by an instrument in writing and withdrew from the trust all properties then held in trust by the First Union Trust and Savings Bank.

Plaintiffs contend that the decree entered in the stockholders’ suit February 11, 1937, for $10,000 against the First Trust and Savings Bank, trustee, means that bank is personally liable and when the defendant First National Bank received all of the assets of the First Union Trust and Savings Bank it became personally responsible for the stockholders’ liability of the First Union Trust and Savings Bank.

To this defendant replies that no individual or personal liability was imposed upon the First Trust and Savings Bank by the decree of February 11, 1937; that this decree found, “that the total liability herein of each defendant stockholder is placed immediately under the name of said defendant stockholder in brackets, all as is hereinafter in this paragraph set forth:

“Name

“First Trust and Savings Bank, Trustee under agreement with Morris Metcoff, dated January 22, 1927. (Certificate No. 648 issued to First Union Trust and Savings Bank, Trustee.)

“($10,000.00).”

and the decree ordered that this be paid to the receiver of the Madison Square Bank.

“(2) By the said First Trust and Savings Bank, Trustee under Agreement with Morris Metcoff, etc., as the holder of One Hundred (100) shares of said stock, the sum of Ten Thousand Dollars ($10,000.-00)____”

When we examine the trust agreement of Metcoff with the First Trust and Savings Bank, trustee, we find that none of the stock was purchased by the trustee in the exercise of its trust powers; that Metcoff controlled the acts of the trustee with reference to voting the stock; that it was never registered on the books of the Madison Square State Bank except in the name of “First Trust and Savings Bank, Trustee, under Agreement with Morris Metcoff.” Likewise, the agreement expressly provided that the trustee should incur no liability through its holding of any securities thereunder.

Approximately five years after the formation of the trust Metcoff terminated it and withdrew all the assets held thereunder, as he had power to do under the trust agreement. Since that time neither the First Trust nor any of its successors has held any of the assets in the trust.

The summons in the stockholders’ suit was served upon the “First Trust and Savings Bank, Trustee under Agreement with Morris Metcoff,” and the trustee bank filed its appearance so describing itself, and as we have noted, the decree was against that defendant as “Trustee under Agreement with Morris Metcoff.”

Whether a judgment against a trust company as trustee can be considered as a liability of the trustee, personally, was considered in the case of Bankers Trust Co. of Muskegon v. Forsyth, 266 Mich. 517, 520. There a complaint was filed to secure an accounting and a termination of a trust which the plaintiff was serving as trustee; certain defendants had unsatisfied judgments rendered against the Bankers Trust Co., as trustee. The opinion said the court was not concerned with whether the controversy which resulted in these respective adjudications was such that the trust company might have been held personally or individually liable. “Such a claim was not asserted and of course such a liability was not adjudicated.” The opinion noted the citation of cases where the trustee executed a contract in its representative character. The court said “Such authorities are not in point in the instant case which does not involve the construction of a contract or the question of possible liability thereon in one capacity or another. Instead, we here have two claims each of which has been prosecuted to final judgment as being a liability of the plaintiff herein in its trust capacity only. Having been so adjudicated, the judgments entered in the respective suits cannot be changed in this equitable proceeding so as to render the trust company directly or individually liable thereon. ’ ’ The court held that the trustee could not be-charged with these judgments in its individual capacity.

A case involving the same question is Bates v. Atlantic Nat. Bank of Jacksonville, 101 F. (2d) 278, where a decree had been entered against the defendant bank as trustee; the superintendent of banking instituted suit seeking to impose individual liability based upon this decree. The opinion noted that although judgments at law against one as trustee have been held to be personal judgments, it was otherwise in a court of equity.

Plaintiffs cite Wahl v. Schmidt, 307 Ill. 331, and quote at some length from this opinion as holding to the contrary. We do not so read this. There the fundamental question was as to the liability for the death of Elizabeth Frankowicz, an employee in a building in possession of Schmidt where the water tank collapsed, inflicting injuries from which she died; the litigation involved numerous questions, one of which was whether Schmidt, individually or as trustee, was liable for damages caused by this accident. The court found that the accident occurred after Schmidt had ceased to be trustee and held that, looking at the record of Klonowski, administrator of the estate of Frankowicz (the deceased woman) v. Schmidt, it was apparent that the only cause of action stated was against Schmidt, personally. O'Connor v. Rathje, 298 Ill. App. 489, cited by plaintiffs, holds contrary to their contention. There a suit was brought against Rathje, individually and as successor trustee, for damages; subsequently Rathje individually was dismissed; he answered in the name of Rathje, “successor trustee” and judgment in that style was entered against him; on appeal plaintiff contended the words “successor trustee” were merely surplusage and that the judgment was against Rathje individually. The court examined the record and held that since Rathje individually was not a party to the suit, and since the complaint stated no cause of action against Rathje as successor trustee, the judgment was reversed. The Supreme Court denied plaintiff leave to appeal.

It would seem to be just that if plaintiffs attempted to hold the First Trust in its individual capacity it should have been made a party defendant in this capacity. In many cases our courts have indicated that a party sued as trustee or in any other representative capacity, is a stranger to the record in his individual capacity. This rule was followed in Lawson v. Kolbenson, 61 Ill. 405, where plaintiffs brought suit in a representative capacity and upon the hearing insisted that they had sued as well in their individual right. The court condemned this. A similar situation arose in Beach v. Shaw, 57 Ill. 17, where the court said of the plaintiff that he was claiming to own this property in his own right and the proof shows that he does not. In Cleveland v. Cleveland, 225 Ill. 570, Harry Cleveland individually appealed from a judgment in a proceeding in which he was a party as executor. The court held that in his individual capacity he was a stranger to the record. Similar holdings have been made in other States. In Leonard v. Pierce, 182 N. Y. 431, it was said persons suing or being sued in their representative capacity are in contemplation of law distinct persons “and strangers to any . . . liability as an individual,” and that a former judgment concludes a party only in the character in which he was sued.

Plaintiffs’ brief cites many cases where a trustee or official in a representative capacity has assumed contractual obligations and where it has been held that a-judgment at law rendered against him as trustee is a judgment against him individually. No cases are cited in which a decree in a court of equity rendered against a person specifically named as trustee under no contractual obligations has been held to be an individual judgment.

There is no merit in plaintiffs’ suggestion that because the Metcoff trust had been terminated prior to the filing of the amended and supplemental complaint in the prior proceedings, plaintiffs thought they were suing the First Trust individually. Apparently plaintiffs knew this at the time this complaint was filed, but in any event the point cannot prevail against the record of the judgment.

There is force in the suggestion by defendant that the First Trust and Savings Bank was never a stockholder of the Madison Square State Bank. It bought none of this stock and was simply a depository, the settlor retaining the power to dispose of it as he saw fit. The trustee could only vote as directed by Metcoff and the entire income of the trust was payable to him during his lifetime. The stock book showed the capacity in which the First Trust held this stock and any creditors could by investigation learn the terms of the trust. In Gahagan v. Whitney, 359 Ill. 419, it was held that the court may determine and impose liability upon the real stockholders regardless of the name in which the stock was held.

Defendant says that no bank stockholder’s liability can be imposed upon another bank, and therefore any individual liability upon the First Trust and Savings Bank is ultra vires, contrary to public policy and void. This point is well supported by precedent and reason. Section 1, ch. 16½, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 10.01], prescribes the powers of a banking corporation. The statute gives no authority to a bank to acquire stock of another bank or to incur constitutional or statutory liability thereon. The opinion in Continental Ill. Nat. Bank & Trust Co. of Chicago v. Peoples Trust & Savings Bank of Chicago, 366 Ill. 366, 374, holds that banks are creatures of limited powers and any transaction beyond those powers was ultra vires and void. That case involved a contract by which the Continental bank took over the assets of the Peoples bank and administered its affairs and sought to hold the stockholders of the Peoples bank to a stockholders’ liability. The court, among other things, said: “One dealing with a bank is chargeable with notice of its powers and limitations. We have often held that the banking business is so impressed with a public interest that it is subject to strict regulatory legislation. Private banking is forbidden by law. National and state banks are creatures of the law having no powers but those which the law has conferred upon them. The powers vested in a bank are only such as are expressly granted and as are necessarily implied from the specific grant. Every power not clearly granted is withheld. Enumeration of powers granted implies exclusion of all others, and any ambiguity in the terms of a grant operates against the corporation and in favor of the public. If a power claimed is withheld, the withholding is to be regarded as a prohibition against its exercise.”

Paragraph 64 of chapter 38 of the statutes declares it shall not be lawful for any bank to assume or to become liable for any indebtedness on account of any person or corporation, and “any assumption, liability or guarantee, whereby such deposits or trust funds could be jeopardized or impaired shall be null and void.” It was pointed out in the opinion of Knass v. Madison & Kedzie State Bank, 354 Ill. 554, that such ultra vires contracts create a contingent liability which cannot be measured or determined in prospect and that such contingent liability cannot be accurately reported to the public officials having a right to report upon the condition of the bank. The decisions of our courts are uniformly against the creation of such contingent liabilities. Hoffman v. Sears Community State Bank, 356 Ill. 598; People ex rel. Barrett v. First State Bank & Trust Co. of Canton, 364 Ill. 294, and Retirement Board of Municipal Employees’ Annuity & Benefit Fund of Chicago v. Gysin, 300 Ill. App. 461. These decisions indicate that it would be contrary to the public policy of Illinois to permit the enforcement against the individual assets of a bank of a liability arising from the ownership of bank stock. Decisions in other States involving different statutes from those in force here are not in point, and in Bogert on Trusts and Trustees, vol. 3, ch. 33, where the author discusses the individual liability of trustees, the validity of its acts as being intra vires is assumed.

We find no support in decided cases for the proposition that a bank which has power to execute trusts may assume the liability of an ordinary corporation or person. The duty of the bank to safeguard its assets for depositors is imposed upon the bank whether it has power to execute trusts or not. It cannot endanger its depositors by assuming any personal liability of a trust. Individual liability is prohibited under our laws, except for misfeasance or negligence in executing the trust.

For the reasons above stated the decree dismissing plaintiffs’ suit for want of equity is proper and it is affirmed.

Decree affirmed.

O’Connor, P. J., and Hatchett, J., concur.


author: Mr. Justice Matohett

text:
    Frank W. Bicek, Appellant, v. William L. Royal, Appellee.
    Gen. Nos. 41,226, 41,272.
    Opinion filed December 23, 1940.
    Seyfarth & Atwood, of Chicago, for appellant.
    Hummer, Van Ness & Yowell, of Chicago, for appellee; John J. Yowell, of counsel.
   Mr. Justice Matohett

delivered the opinion of the court.

These appeals by plaintiff bring before this court for review an order and judgment entered February 16, 1940. Plaintiff sued on an alleged promise of defendant to pay for services rendered by plaintiff in connection with the issuance of a life insurance policy issued to John F. Cuneo by the New York Life Insurance Company. Defendant denied the promise and as further defense set up that the promise was illegal and void as against public policy and certain ordinances of the city of Chicago.

There was a trial by jury, a motion at the close of all the evidence for an instruction in defendant’s favor, which was denied, and a verdict for plaintiff in the sum of $2,784.38, on which the court the same day (November 1, 1939) entered judgment.

On that day, also, a motion for a new trial was made by defendant and continued from time to time until February 16, 1940, when the order appealed from was entered. The order recited that the cause was heard “on motion of the defendant for a new trial” and that “defendant’s motion for a new trial herein is sustained, and judgment is now entered in favor of the defendant and against plaintiff notwithstanding the verdict of the jury,” etc.

Plaintiff by leave of this court was permitted to appeal from the order as one granting a new trial (Smith-Hurd Ann. Stats., ch. 110, § 77, par. 201, p. 195 [Jones Ill. Stats. Ann. 104.077]; Supreme Court Rule 259.30, p. 579). That appeal is Gen. No. 41,226. Later, plaintiff filed notice of appeal from the judgment. This appeal is Gen. No. 41,272. Since these are from the same order they will best be considered together.

The trial judge stated the reasons in his opinion justifying the entry of the order, which in brief were that the promise of defendant to share his commissions with plaintiff, an unlicensed broker, was unlawful and unenforcible by reason of §§ 3329, 3330, 3333, 3334 and 3335 of the Municipal Code of Chicago. The trial court recited, as the proof shows without contradiction, that plaintiff negotiated with defendant upon the basis that plaintiff was an insurance broker. In the first complaint filed, plaintiff alleged that he was duly licensed and made the New York Life Insurance Company a party defendant. Plaintiff’s letters in evidence also show he made his claim on that theory. There is no doubt that defendant and another broker received the commission and divided it. Plaintiff was not a licensed broker.

The sections of the ordinances above referred to in § 3329 define an insurance broker; § 3330 provides that the annual license fee for insurance brokers shall be $25; and § 3333 provides a penalty by way of a fine of not less than $5 nor more than $200 for each offense. It also provides that every day a violation of the article shall occur shall constitute a separate and distinct offense. Section 3334 provides, “No person licensed as an insurance broker, and no company, its agent or manager, shall pay any commission or other compensation to any person for negotiating contracts of insurance, other than to brokers licensed under this chapter.” Section 3335 provides that any insurance broker violating the preceding section shall be subject to a fine of not less than $10 nor more than $200, and the revocation of his license for one year, and that any insurance company, its agent or manager, who violates the provisions of the article, where no other penalty is provided, shall be subject to a fine of not less than $10 nor more than $200. The validity of these ordinances is not questioned.

It has been held by the Supreme Court in the leading case of Douthart v. Congdon, 197 Ill. 349, that one performing services as a broker without a license contrary to an ordinance cannot recover for the services rendered. To the same effect is Frankel v. Allied Mills, 369 Ill. 578, the Supreme Court in its opinion reviewing practically all the authorities. In Bairstow v. Northwestern University, 287 Ill. App. 424, 427, it is held on the authority of Douthart v. Congdon, quoting the American and English Encyclopedia of Law, 2nd Ed., vol. 4, p. 355:

“Where by the terms of the statute or city ordinance it is made illegal for a broker to exercise his business without a license, a broker cannot recover commissions for services rendered without such license.”

Plaintiff cites Gibons v. Williams, Monicer & Co., 191 Ill. App. 594; Gross v. Strauss, 208 Ill. App. 263; Simon v. Bollei, 243 Ill. App. 629 (Abst.), and Jarusz v. Namon, 245 Ill. App. 600, claiming these are analogous cases where judgments for the plaintiff were sustained by this court. These cases, it is true, hold that under the circumstances appearing in each of them, a third person unlicensed could recover from a licensed broker on his promise to pay for services rendered an amount equal to a certain part of commissions earned. However, no one of these cases involved the construction of an ordinance similar or equivalent to § 3334. This section expressly forbids any such' payment by way of compensation by a person licensed or by any company, its agent or manager. We hold plaintiff is precluded by the plain language of this ordinance and that the language of the ordinance distinguishes this case from the cases relied on. The jury should have been directed to return a verdict for defendant since there was no material issue of fact.

Plaintiff, however, further contends the court erred in entering judgment notwithstanding the verdict and says the proceeding did not conform to § 68 (1) of the Civil Practice Act (Smith-Hurd Ann. Stats., ch. 110, par. 192, p. 681 [Jones Ill. Stats. Ann. 104.068]). Plaintiff says there was no motion for a judgment notwithstanding the verdict made within the 10 days prescribed by the statute. Plaintiff cites Denny v. Goldblatt Bros., Inc., 298 Ill. App. 325, where it was contended that such a motion must be made before the entry of the judgment. This court there held that the motion could be made after as well as before the entry of the judgment “provided the requirements of the section are complied"with.” Plaintiff says in this case there was no attempt by defendant to comply with the requirements of § 68, and argues that after the motion for a new trial was granted the necessary effect was to give plaintiff the right to a new trial by jury. The argument is over-technical. There were not two orders entered but one. Defendant made a motion for a new trial when the judgment for plaintiff was entered on the verdict. This was continued, and defendant in conformity with the statute filed a statement in writing of his reasons. These were seventeen in number. One was that the court erred in refusing the request of defendant at the close of the evidence for an instruction in defendant’s favor; another that the court erred in denying defendant’s motion for judgment in his favor on the pleadings, and another for denying defendant’s motion for judgment notwithstanding the verdict.

The language of the order taken as a whole with the record leaves no doubt of the issue which was actually argued by counsel and considered and decided by the court. No other result could have been reached under the law, the pleadings and the facts. We will not reverse merely to compel a compliance with purely technical matters which can in no way affect the substantial justice. The judgment in both cases will be affirmed.

Judgment affirmed.

0 ’Connor, P. J., and McSurely, J., concur.


author: Mr. Justice Matchett

text:
    Sue E. Wagner, As Executrix of Estate of Ferdinand F. Nellesen, Deceased, Appellant, v. National Engraving Company, Appellee.
    Gen. No. 41,242.
    Opinion filed December 23, 1940.
    Lewis C. Conner and Clinton A. Stafford, both of Chicago for appellant.

      Oliver B. Opsahl, of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

Plaintiff appeals from a decree dismissing her complaint for want of equity. The cause was heard on exceptions to the report of a master, some of which were sustained, others overruled.

The facts in brief are that the decedent Nellesen on December 29, 1929, was the owner of one third of the stock of the defendant National Engraving Company, a corporation. Rudolph Engel and John Doerfler each owned one third of the total stock of 40 shares. They were the only stockholders, officers and directors of the corporation. No dividends were ever declared. The corporation was run and managed much as if it were a partnership. None of the three was paid any salary. At the end of the fiscal year the amount remaining on hand was divided equally among them. From 1929 onward, Doerfler acted as office manager, Engel as solicitor of business and Nellesen as superintendent of the shop and “Benday” man. Benday was the name for a process used in the business, and Nellesen was an expert in doing this kind of work. For the period from 1929 to 1935, inclusive, each of these three owners of the business annually drew out substantial amounts — the least $6,208.33, the largest $12,433.33.

December 21, 1929, at a meeting of the directors of the National Engraving Company, it was .proposed that an agreement be made between each of these three stockholders and the corporation to the effect that upon the death of any one of them his personal representative would be obligated to sell his stock to the corporation for $15,000. On that date three similar agreements (one with each of the stockholders) for such sale and purpose were put in writing, submitted to the parties and January 3, 1930, executed and delivered by them to the corporation. Each of the agreements, in addition to providing for the sale and purchase of the stock of each holder, also provided that in order to provide the money for the corporation to pay for his stock each stockholder would take out two insurance policies on his life, one for $5,000 and one for $10,000, making the corporation the beneficiary. The contracts also provided that the corporation would pay the premium upon the policies taken out.

On the day the contract of the decedent was executed, he took out two policies, one for $5,000 and one for $10,000. The $10,000 policy provided for the payment of a double liability in case of accidental death. The master finds there was an oral agreement between the corporation and the decedent that this policy should contain this provision but it was not reduced to writing. He also finds the agreements, both oral and written, were made at a directors’ meeting but that no resolution was drawn up.

Plaintiff argues oral evidence was not admissible to prove conversations or agreements which were not in the written contract between decedent and the corporation. She cites Osgood v. Skinner, 211 Ill. 229, 238, and Victor Electric Co. v. Miller, 199 Ill. App. 577. The cases are not applicable. The oral evidence was not in conflict with the written agreement but supplementary to it. Charles Mulvey Mfg. Co. v. McKinney, 184 Ill. App. 476.

The premiums on both insurance policies were paid by the corporation. Plaintiff’s exceptions to a finding that the premiums were in fact paid by the decedent were sustained by the chancellor. Nellesen died July 11, 1936, from accidental drowning. The corporation collected the insurance on both policies, including the double liability, a total amount of $25,000. His executrix brings this action on the theory that the insurable interest of the defendant corporation in the life of Nellesen was not more than $15,000, and she is entitled to recover from defendant the $10,000 paid by the insurance company for the double liability on account of his accidental death.

The insurable interest of a corporation under such circumstances is a question of fact, and the test is whether a pecuniary loss may be reasonably expected to result to the corporation from the death of the insured. This is a correct statement of the law as held in numerous cases. Guardian Mut. Life Ins. Co. v. Hogan, 80 Ill. 35; Bruce v. Illinois Bankers Life Ass'n, 207 Ill. App. 555, 558; United Security Life Insurance & Trust Co. of Pennsylvania v. Brown, 270 Pa. 270, 113 Atl. 446; Warnock v. Davis, 104 U. S. 775; Colgrove v. Lowe, 343 Ill. 360.

It is not denied that the burden of proof was upon plaintiff to show there was no reasonable expectation of any pecuniary loss to the corporation by reason of decedent’s accidental death but plaintiff says the means of proof on this point was in possession of defendant; that the law will presume the fact did not exist unless such evidence to establish it is produced by the opposite party. She cites Great Western R. Co. v. Bacon, 30 Ill. 347, and Curry v. Cotton, 356 Ill. 538, to this point, and Prentice v. Crane, 234 Ill. 302, and Welsh v. Shumway, 232 Ill. 54, to the further point that slight evidence is sufficient under such circumstances to shift the burden of proof. We do not doubt the rules of law as stated in these decisions, and we also assume the correctness of plaintiff’s legal theory, namely, that when insurance is payable to a beneficiary who has no insurable interest and the insurer pays the same without raising this defense, the beneficiary will hold the amount so paid as trustee for the estate of the insured. While the precise question has not been decided in this State, so far as we are aware, the courts of many States of other jurisdictions have so decided. Warnock v. Davis, 104 U. S. 775; Strode v. Meyer Bros. Drug Co., 101 Mo. App. 627, 74 S. W. 379; McRae v. Warmack, 98 Ark. 52, 135 S. W. 807; Exchange Bank of Macon v. Loh, 104 Ga. 446, 31 S. E. 459; Hess v. Segenfelter, 127 Ky. 348, 105 S. W. 476; Lanouette v. Laplante, 67 N. H. 118 (36 Atl. 981) and Quinn v. Catholic Knights, 99 Tenn. 80, 41 S. W. 343.

Notwithstanding, we are of the opinion that the decree in this cause is right and must be affirmed because, as we read the evidence, the finding of the master as approved by the chancellor that defendant in good faith believed at the time the insurance policies were taken out that pecuniary loss to this amount would result to it in case the decedent should die suddenly as the result of accident, is sustained. The question must be determined as of the date upon which the insurance was taken out. If within the meaning of the law, defendant had an insurable interest on that date, then the fact that at a later date the interest ceased would not invalidate the policy. Rumsey v. New York Life Ins. Co., 25 Hawaii 141; Sinclair Refining Co. v. Long, 139 Kan. 632; Home Title Ins. Co. v. United States, 50 F. (2d) 107, 109; Connecticut Mut. Life Ins. Co. v. Schaefer, 94 U. S. 457; Origsby v. Russell, 222 U. S. 149; Wellhouse v. United Paper Co., 29 F. (2d) 886; Keckley v. Coshocton Glass Co., 86 Ohio St. 213, 99 N. E. 299; West End Sav. Bank v. Goodwin, 223 Ala. 185, 135 So. 161; Reilly v. Pennsylvania Mut. Life Ins. Co. of Philadelphia, 201 Iowa 555, 207 N. W. 583; First-Columbus Nat. Bank v. D. S. Pate Lumber Co., 163 Miss. 691.

Evidence was introduced by plaintiff tending to show the mere fact that the death of the deceased was accidental did not result in pecuniary loss to the defendant corporation. This, if true, was not at all controlling. The insurable interest of defendant to the amount of $15,000 is not questioned. Manifestly it could not be, since if the corporation was to buy the stock it was necessary to provide the money with which to buy it. Looking at the matter upon the date the insurance policy was taken out, we think there was much reason to provide the corporation with an additional $10,000 in order to meet exigencies which might reasonably be expected to arise from the sudden death of any one of the three persons who organized, were managing, controlling and developing the business. The purpose of insurance is to provide against contingencies. These cannot always be determined with mathematical accuracy. This provision for double liability in case of accidental death seems to have been well designed to provide the corporation against a pecuniary loss which under all circumstances might be reasonably anticipated to result from the accidental death of decedent.

The decree will be affirmed.

Decree affirmed.

O’Connor, P. J., and McSurely, J., concur.