author: Mr. Presiding Justice Matchett O’Connor and McSurely. JJ.,

text:
    Michael R. Kazunas, Appellant, v. Sidney B. Wright and June M. Wright, Appellees.
    Gen. No. 38,870.

      Opinion filed October 13, 1936.
    Rehearing denied October 26, 1936.

      John S. Hummer, of Chicago, for appellant; Hummer & Hummer, of counsel.
    Winston, Strawn & Shaw, of Chicago, for appellees ; Walter A. Wade and Raymond O. Mitchell, both of Chicago, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

In an action at law based upon two promissory notes for the aggregate principal amount of $1,000, with interest from January 1, 1932, and upon trial by the court, there was a finding for the defendants with judgment, from which plaintiff appeals. The notes were executed by Sidney B. Wright and June M. Wright, his wife, July 19, 1926, and payment thereof was secured by a trust deed executed by the Wrights conveying certain real estate in Chicago.

Defendants, by their amended affidavit of merits, admitted that they made and delivered the notes, but interposed as defense a denial that plaintiff was the owner thereof at the time suit was begun. Further, that by reason of certain extension agreements entered into from time to time, beginning July 21, 1927, between the holders of the notes and subsequent grantees of the premises without defendants’ knowledge or consent, defendants were released from their obligations to pay the notes to the extent of the value of the property as of July 21, 1927. It was averred that upon that date the value of the premises was sufficient to satisfy the indebtedness in full, and therefore nothing whatever was due. By a second amended affidavit of merits the defendants also interposed the defense of payment.

There is no substantial conflict as to the facts. July 19, 1926, defendants Wrights purchased the real estate in question from Myrtle Rooms and delivered these two notes as part of the purchase price. One of the notes was for $700, the other for $300. Bach was drawn to the order of “Ourselves” and indorsed by the makers. The notes provided that the indebtedness should draw interest at the rate of six per cent, payable semiannually. The note for $700 by its terms fell due one year from date, and the $300 note in two years from date.

To secure these notes defendants executed and delivered to Myrtle Rooms a trust deed conveying the premises purchased. On February 1,1927, the Wrights by warranty deed conveyed the premises to Arthur Anderson, "subject to the indebtedness. On March 1, 1927, Anderson, a bachelor, conveyed the premises by warranty deed to Catherine Sullivan, a widow, subject to the indebtedness. July 19,1927, an extension agreement in writing was entered into between Albert IT. Johnson, then the owner of the notes, and Catherine Sullivan, by which the time of payment of the $700 note was extended for a year from its maturity, and on July 19, 1928, by a similar agreement, the time of payment of the $300 note was extended for one year. December 27, 1929, Catherine Sullivan, by warranty deed, conveyed the premises to A. Lambert Hennessy. July 1, 1930, Hennessy, by written agreement with Hugh W. Fluck, Jr., extended payment of the indebtedness due on both notes from July 1, 1930, for a period of one and one-half years. July 15, 1931, Hennessy and his wife, by quitclaim deed, conveyed the premises to Charles Farrell, and on April 19, 1932, Fluck, by letter to Hennessy, extended the time of payment of the indebtedness for one year. Neither by the conveyance in question nor by other proof did defendants attempt to show that any of the respective grantees assumed or agreed to pay the indebtedness, and there was uncontradicted testimony tending to show that neither one of the defendants had knowledge of or at any time consented to the execution of these extension agreements.

When the first note came due, July 18, 1928, Myrtle Booms served notice in writing on the makers, the Wrights, that she had elected to declare the whole indebtedness due and payable. Defendants conferred with a broker, Mr. Cramer. Catherine Sullivan was then the owner of the premises. About July 19, 1927, Cramer prepared the written agreement between Albert H. Johnson, who in the transaction became the holder of the notes, and Catherine Sullivan, the owner of the premises, whereby it was agreed that the time of payment of the $700 note should be extended to July 19,1928. In behalf of Catherine Sullivan, Cramer negotiated a loan of $1,034.65 at the Cottage Grove State Bank, the proceeds of which were used to purchase the notes from Myrtle Booms. Johnson was cashier of the Cottage Grove State Bank, and the notes and trust deed were delivered to the bank uncanceled. Hugh W. Fluck, Jr., acquired the notes from the bank and thereafter delivered the same to Charles Farrell, Avho was the owner on November 23, 1934. On that date Farrell took the notes and handed them to Michael Kazunas, the plaintiff, who was a clerk in the office of the attorneys. He filed his action at law on the notes on January 1, 1935.

Evidence Avas offered by the defendants tending to show that on July 19, 1927, the value of the real estate conveyed by the trust deed was about $4,000, and that on November 28, 1934, when demand was made on defendants to pay the notes, the value was not more than $600, while there were liens for taxes and special assessments against the property aggregating $1,047.99. Catherine Sullivan paid the interest and $50 in consideration of the extension agreement of July 19,1927. Charles F. Farrell is the owner of the equity in the premises and also the beneficial owner of the'notes sued on.

Two of the alleged defenses set up by the defendants may, we think, be disposed of without much consideration. We hold that under the law plaintiff can maintain this suit although the beneficial ownership of the notes is in another person. This is settled by the provisions of the Negotiable Instruments Act; see Illinois State Bar Stats. 1935, eh. 98, ¶ 71; and by repeated decisions of the Appellate and Supreme Courts. Caldwell v. Lawrence, 84 Ill. 161; Bourke v. Hefter, 202 Ill. 321; Dillon v. Elmore, 361 Ill. 356; Ewen v. Templeton, 148 Ill. App. 46.

We hold also that the defense of payment is not sustained by the evidence. The transaction in which Myrtle Rooms, Catherine Sullivan, Cramer, and the Cottage Grove State Bank and its cashier, Johnson, participated did not amount to payment of the notes for the reason that such manifestly was not the intention of the parties to the transaction. This is indicated by the written evidence, by the fact that the notes were delivered uncanceled, and by all the circumstances which distinguish that arrangement.

The controlling question in the case, therefore, is whether the various agreements between the grantee owners of the equity and the holders of the notes whereby the time of payment of the same was extended without the knowledge or consent of the makers, who were mortgagors, operated to release these mortgagor makers from their liability on the notes. The plaintiff says that the release of the mortgagors is entirely dependent upon the fact'of the assumption of the mortgage debt by the grantee, and because the grantee did not assume and agree to pay the debt the mortgagors are not released. He cites Illinois cases, of which Prudential Ins. Co. v. Bass, 357 Ill. 72, is illustrative, and Pomeroy’s Equity Jurisprudence (4th ed., vol. 3, sec. 1206), where the author in substance states the law to be that where the grantee assumes and agrees to pay the mortgage debt as a part of the purchase price, he becomes personally liable for the debt, and the land becomes the primary fund for the payment of the debt, and that “as between the mortgagor and the grantee, the grantee becomes the principal debtor, primarily liable for the debt, and the mortgagor becomes the surety, with all the consequences flowing from the relation of suretyship. ’ ’ The theory of the author seems to be that these far reaching results arise solely out of the fact of the assumption of the mortgage debt by the grantee. That this theory prevails in the law of this State plaintiff cites cases such as Scholten v. Barber, 217 Ill. 148; Albee v. Gross, 250 Ill. App. 98; Douglass v. Ullsperger, 251 Ill. App. 145; Binga v. Bell, 259 Ill. App. 361, and other cases.

We will allow the plaintiff to state his contention in his own words; he says:

“The principal-snrety relation arises only because of the assumption of the indebtedness by the grantee, and it is a corollary of the above proposition that if there is no assumption of the indebtedness of his grantee the mortgagor does not become a surety, and an extension of time of payment without his consent does not release him. Such indeed is the rule of Illinois.”

Plaintiff says Scholten v. Barber, 217 Ill. 148, is identical with the instant case. In that case Mary Scholten executed her promissory note to George N. Cooper and secured the same by a trust deed. She afterward conveyed the property to one Dexter who assumed and agreed to pay the indebtedness. The note was transferred by Cooper to the plaintiff, Barber. There were several conveyances of the property by quitclaim deed, but in none of these did the grantee assume the debt, and one Millam became the owner of the premises. By agreement between Millam and the owner of the note, the time of payment was extended for three years. Subsequently the trust deed was foreclosed, the proceeds of the sale indorsed on the principal note, and Barber, as holder of the note, sued Mary A. Scliolten for the balance claimed to be due. The defendant pleaded a release because of the extension: In the trial court plaintiff had judgment, which was affirmed by the Appellate Court, and Mrs. Scliolten appealed to the Supreme Court. The opinion of that court, after stating* the general rule where a grantee assumed and agreed to pay, said in substance that the mortgagee was in nowise affected by the agreement to which he was not a party; might disregard it and bring his action against the original debtor only, or accept the promise made for his benefit, and bring his action against the grantee. The court further said:

“There was no agreement by Millam to pay the amount of the encumbrance when the endorsement was made on the note or at any other time. . . . Plaintiff could not have maintained an action against Millam for the amount of such note, and as he never assumed or agreed to pay it, the defendant never became and could not become his surety.”

The plaintiff argues that the court’s holding* that the mortgagor was not released was based upon the proposition here contended for — “that the release does not operate unless the mortgagor becomes a surety by reason of the assumption of the indebtedness by the grantee.”

Similar cases from other jurisdictions, such as Shepherd v. May, 115 U. S. 505; Chilton v. Brooks et al., 72 Md. 554, are cited.

In Douglass v. Ullsperger, 251 Ill. App. 145, this court pointed out the conflicting opinions which exist as to the law on this subject, as illustrated by the cases of Morganroth v. Pink, 227 Ill. App. 244, and Albee v. Gross, 250 Ill. App. 98. The latter case reviews the decisions at length, and the subject is discussed with particular reference to the Illinois cases in Reeves on the Illinois Law of Mortgages and Foreclosures, vol. 1, ch. 15, page 366, in an extended footnote. The same subject is considered in the annotation to Insley v. Webb, 41 A. L. R. 274, 294, and a similar annotation to Peters v. Lindley in the same volume, at page 315.

The argument of plaintiff assumes as a premise that the relationship of principle and surety as between grantee and mortgagor arises out of the contract, by which the grantee assumes and agrees to pay. As a matter of fact, there is no such contract where the vendee only accepts the conveyance subject to the mortgage. Therefore, plaintiff argues, the relationship of principal and surety does not arise in the absence of the contract to assume and pay. The vice in the argument is that plaintiff’s major premise assumes that the relationship of principal and surety cannot arise in any other way than by the voluntary contract of the parties, by which the vendee assumes and agrees to pay. This assumes the whole issue. In the first place the relationship said to arise between the vendee and the mortgagor in their relation to the creditor is not, strictly speaking, that of principal and surety at all. The relationship does not come into existence as the intended result of an agreement. It is presumed to exist and it exists only by implication of law and for the furtherance of justice. It is not the result of a true contract. The relationship implied is not that of a true surety. It arises out of quasi contract, and quasi contract (see Restatement, vol. 1, sec. 5) is “an obligation created by law for reasons of justice.” At common law such obligations (as the Restatement points out) were only enforced by the common law form of action known as assumpsit. Hence, much confusion resulted.

The real question then here comes to this, namely, whether in case of conveyance by the mortgagor without any agreement on the paid of the grantee to assume and pay the mortgage obligation, and the execution thereafter by the creditor and the grantee of a valid agreement extending the time of payment of the indebtedness without the knowledge of the mortgagor and without his consent constitutes such a wrong to the mortgagor as in law and justice would require his release from the original obligation. The answer must, we think, be in the affirmative. In Murray v. Marshall, 94 N. Y. 611, the court said that while no strict and technical relation of principal and surety arose, an equity did arise, bearing a very close resemblance to the equitable right of a surety whose contract had been modified; that it was not inaccurate to say that the grantee, with respect to the land and to the extent of its value, stood in the relation of a principal debtor, and to the same extent the grantor had the equities of a surety; that this “follows inevitably from the right of subrogation which inheres in the original contract of sale and conveyance. . . . Through the right of subrogation the vendor could secure his safety and that right could not be invaded with impunity. It was invaded. When the creditor extended the time of payment by a valid agreement with the grantee, he at once, for the time being, took away the vendor’s original right of subrogation. He suspended its operation beyond the terms of the mortgage. He put upon the mortgagor a new risk not contemplated, and never consented to. The value of the land, and so the amount to go in exoneration of the bond, might prove to be very much less at the end of the extended period than at the original maturity of the debt, and the latter might be increased by an accumulation of interest. The creditor had no right thus to modify or destroy the original right of sub-rogation. What he did was a conscious violation of this right, for the fact that he dealt with the grantee for an extension of the mortgage shows that he knew of the conveyance, and that it left the land bound in the hands of the grantee. Knowing this he is chargeable with knowledge of the mortgagor’s equitable rights, and meddled with them at his peril. . . . The extension of time, therefore, operated to discharge him only to the extent of that value. At the moment of the extension his right of subrogation was taken away, and at that moment he was discharged to the extent of the value of the land, since the extension barred his recourse to it, and once discharged he could not again be made liable. From that moment the risk of future depreciation fell upon the creditor who by the extension practically took the land as his sole security to the extent of its then value, and assumed the risk of getting that value out of it in the future. ’ ’

Mutual Benefit Life Ins. Co. v. Lindley, 97 Ind. App. 578, 183 N. E. 127; Citizens State Bank v. Peters, 179 Minn. 330, 229 N. W. 129; and Zastrow v. Knight, 56 S. D. 554, 229 N. W. 925, are only a few of the many well considered cases where this rule has been applied.

In the annotation to 41 A. L. K., page 294, the author states the rule supported by the weight of authority to be “that where the grantee of the mortgaged property does not assume the mortgage, but merely takes subject thereto, the grantor occupies, to the extent of the value of the land, the position of, and is entitled to the same rights as, a surety; and so where the holder of the mortgage has, by a valid contract with the owner of the equity of redemption, without the consent of the grantor, postponed the time for its payment beyond the time therein provided, the effect of such agreement is not altogether to discharge the grantor from liability, as in the case where the grantee has assumed a personal liability, but to the extent of the value of the mortgaged property at the time of the extension.”

So far as the briefs disclose, the precise question arising here has never been decided by the Supreme or Appellate Courts of this State. The rule and the reasons for it, however, are well stated in In re Roth, 272 Fed. 516, which has been quoted with approval by the Appellate Court of the Third District in Albee v. Gross, 250 Ill. App. 98, and by this court in Metz v. Dionne, 250 Ill. App. 369. It may be conceded this theory is inconsistent with language used in Scholten v. Barber, 217 Ill. 148. But this particular defense was not presented by the pleadings in that case, nor until now, so far as we are informed by the briefs, has it ever been presented in any case reviewed by the Appellate or Supreme Court. Clearly, the courts cannot be held to have decided a question not presented on the pleadings or in the briefs. We have not attempted to harmonize the language in opinions of the courts. Indeed, it may be impossible to do so. However, it is believed the conclusion at which we have arrived is not inconsistent with the law as heretofore stated. We hold that by these extensions the mortgagors were injured and are released to the extent of such injury; that the finding and judgment for the defendant was proper. The judgment is therefore affirmed.

Affirmed.

O’Connor and McSurely. JJ.,

specially concurring:

We agree with the law as stated in the foregoing opinion. And although, as stated'in the opinion, the point was not made that the grantees of the premises did not assume the mortgage debt, yet it appears from the extension agreements entered into between Albert H. Johnson and Catherine Sullivan, one dated July 19, 1927, and the other dated July 19, 1928, and an extension agreement entered into between Hugh W. Fluck, Jr. and A. Lambert ITennessy, dated July 1,1930, that Catherine Sullivan, one of the grantees of the mortgaged premises, and later A. Lambert Hennessy, another grantee of the mortgaged premises, each agreed to pay the mortgage indebtedness and interest thereon in consideration of the extension of the time of payment of the indebtedness. By the extension agreements the grantees became personally liable to pay the mortgage debt, just as much so as though they had assumed it in the warranty deeds conveying the premises to them respectively.


source: Caselaw Access Project

author: Mr. Presiding Justice Matchett

license: Public Domain

text:
    Frank S. Smith, Appellee, v. National Life and Accident Insurance Company, Appellant.
    Gen. No. 38,893.

      Opinion filed October 13, 1936.
    Donahue & Hubka, of Chicago, for appellant; Frank E. Donahue and Vernon E. Hubka, of counsel.
    Stebbins, McKinley & Price, of Chicago, for ap-pellee ; William McKinley and Paul E. Price, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

In an action based upon an accident insurance policy a statement of claim was filed by plaintiff claiming damages on account of injury said to have been sustained by him on February 18, 1934. An affidavit of merits by defendant denied all liability. There was a trial by jury, and a verdict for plaintiff for $875, on which the court, overruling the motion of defendant for a new trial, entered judgment.

The principal defense interposed by the affidavit of merits was that plaintiff could not recover because of false and fraudulent representations made by him as to material matters, to the effect that no former application for insurance had been rejected, renewal declined, or policy canceled; that he had never made a claim under an accident or health policy; that no such claim by him was ever rejected, and that for five years last past he had not had any sickness or sustained any bodily injury. These alleged representations were contained in his application for the policy. The plaintiff replied in avoidance by three different and in some respects contradictory affidavits as to the circumstances under which the application was executed.

' Upon the trial plaintiff identified and offered in evidence the accident insurance policy and testified as to the facts and circumstances connected with the accident. He also produced the attending physician, who gave medical testimony as to the character of plaintiff’s injuries, and then rested his case.

Defendant called plaintiff as a witness under Rule 33 of the municipal court. The application was produced and was identified by plaintiff, who" testified that the name attached thereto and the signature thereon were his own. Whereupon defendant offered the instrument in evidence, but an objection by plaintiff was sustained by the court. Upon further examination plaintiff stated that the instrument was not in the same condition as when he first signed it, in that at the time he affixed his signature it was a printed form, was unfilled and in blank, and also that there now appeared three different handwritings on it and also erasures. Plaintiff also said that Mr. Jacobson, the agent of defendant, was there when he signed it; he said Jacobson just took plaintiff’s business card and said that he, Jacobson, would take care of the rest, and that if additional information ivas needed he would call plaintiff over the phone; that afterward the agent called plaintiff by phone.

The witness was asked as to the conversation on the phone, but an objection by plaintiff was sustained. The objection being afterward withdrawn, the witness stated that the agent asked him for his full name, when he was born, and who was the beneficiary, and did not ask anything more; that he did not ask for plaintiff’s weight or height nor what his earnings were, so far as plaintiff could remember; that he did not ask whether he had ever made an application for insurance that was rejected, nor whether he ever had a policy of insurance canceled or any renewal policy refused, nor whether he ever had a claim under a health or accident policy paid. Defendant then re-offered the application (defendant’s Exhibit No. 1) in evidence, but an objection on the part of plaintiff was again sustained.

The document which appears in the record as defendant’s Exhibit No. 2, one of the affidavits of plaintiff, was shown to the witness and he admitted that it bore his name and signature. Defendant’s counsel then offered the document in evidence, but an objection by plaintiff was sustained, although this pleading-averred that plaintiff gave true and correct answers to the agent to all the questions contained in the application, while on the contrary plaintiff when testifying as a witness stated that certain of the questions appearing in the application were not asked and that he gave no answer thereto. Plaintiff was then asked whether he had been paid compensation for previous claims made against other insurance companies; whether previous to December, 1931, he had two health and accident insurance policies in the Illinois Commercial Men’s Association, whether he had two such policies in the Illinois Commercial Men’s Association which were canceled by that company, but objections by plaintiff to each and all these questions were sustained. The jury having been excluded, defendant made the following offer:

“We offer to prove from the testimony of the witness, now on stand, that prior to December 31, 1931, he had two health and accident insurance policies in the Illinois Commercial Men’s Association, and that the association is an insurance company; that there was paid to him during the period when he had those two policies the following claims for compensation: on June 23, 1930, $220 for an injury sustained; that he was paid by the same company and on the same two policies on December 6, 1930, six months later, $250 for another accident. That on December 31,1931, one year later, he was paid $200 by the same insurance company on the same policies for a third accident; and that on December 31, 1931, the two policies which the plaintiff held in the Illinois Commercial Men’s Association were cancelled. We further offer to prove from testimony of this witness, that after the cancellation of these two insurance policies he made application to the Metropolitan Life Insurance Company in December, 1932, for health and accident insurance policy, and that the application to that company was rejected by it; that from the testimony of the same witness, we offer to prove that on August 8, 1932, he made application for a health and accident insurance policy to the Mutual Benefit and Health Association; that the application was rejected by that company. That on April 25, 1933, he made a second application to the same company for a health and accident policy, and that that application was rejected; that he made an application for health and accident policy to the Boyal Indemnity Company on August 1, 1933, and that an insurance policy was issued on that application on August 1, 1933, and was cancelled by that company twenty-seven days later, on August 28, 1933.

“We further offer to show from the testimony of the plaintiff that he made application for a health and accident insurance policy to Great Northern Life Insurance Company on December 22, 1933; that he made application for a health and accident insurance policy to the Washington National Insurance Company; the offer of testimony is made to substantiate in every item the allegations made in the affidavit of merits that the plaintiff had been rejected by the insurance companies mentioned; that his policies had been cancelled by insurance companies mentioned; that he did receive the compensation mentioned all before the date of our application.”

Continuing, counsel offered depositions of four witnesses theretofore taken, with exhibits attached, being photo static copies of applications theretofore made by plaintiff, all tending to prove the facts as stated in the offer. Counsel further offered (limiting his offer to the purpose of showing knowledge and bad faith on the part of plaintiff) that in all these applications which were prior to the date of the application for the policy issued to plaintiff, plaintiff denied receiving from any insurance company any compensation on an accident policy, and that such statement in each and all of said applications was untrue. Likewise, that in these applications plaintiff stated that no application by him for a health and accident policy was ever rejected, when he in fact knew that such applications had been rejected prior to that time; that like misstatements were made in applications for insurance made subsequent to the one in question, one of them being the application to the Washington National Insurance Company, bearing date October 31, 1933; that the same false representations were made by plaintiff in an application to the Great Northern Life Insurance Company for a health and accident policy. Objections to all these offers were sustained by the court. The defendant then produced the superintendent of the defendant company, who gave evidence tending to show that Jacobson had quit his employment with the company on December 25, 1933; and that he was not available as a witness.

Defendant contends that the court erred in excluding the application. Plaintiff argues that since the application appeared upon its face to have been altered, it was incumbent upon the defendant to produce satisfactory proof in explanation of the alteration, and he cites Wolf v. Peoples Bank, 255 Ill. App. 127, Avith other cases Avhich it is claimed support this contention. The application is filled out upon printed blanks, evidently prepared by the insurance company for that purpose. The only alteration appearing upon it is in ansAver to the fourth question as to Avhat the occupation and duties of the applicant Avere. Apparently the scribe first Avrote in ansAver to this question, “Supervisory only — Office duties, buying and selling, does not work in mill.” After writing these words it appears a line was drawn through them which does not obliterate them, and above this answer appeared to have been written Avith a different quality of ink, “Furniture factory proprietor, office and supervising duties only.” There is no claim of fraud as to the fourth question. There Avas no material or important alteration in the document. It was, therefore, unnecessary to offer extrinsic evidence as to the manner in which the erasure or alteration was made and the purpose therefor.

The rule applicable in such cases is stated in Anderson v. Augustana College, 300 Ill. 72, quoted in Wolv. Peoples Bank, 255 Ill. App. 127, upon which plaintiff relies:

1 ‘ When an alteration is suspicious in appearance and not satisfactorily explained, the conclusion of fact follows against the instrument, but the appearance of the instrument may furnish a satisfactory explanation without extrinsic evidence.”

We hold that in this case no explanation of the alteration was necessary and that the court erred in excluding this instrument. Plaintiff contends, however, that since the identical answer contained in the original application also appeared in a copy which Avas indorsed upon the policy and introduced in evidence, the exclusion of the original Avas at the most merely a technical error, which was harmless. The blanks in the original application are written in longhand and in ink. The signature of the plaintiff thereto is in his own handwriting. Defendant was entitled to have this original evidence submitted to the jury.

Plaintiff contends further that where an applicant signs an application in blank and relies upon the agent of the company to complete it, and false answers are inserted in the application by the agent of the company, the company is then estopped from avoiding the policy on the ground of fraud in the answers, and this irrespective of whether a copy of the application is attached to the policy. Plaintiff cites a number of authorities: 4 Couch on Insurance, sec. 842b, page 2736; Cooley’s Briefs on Insurance, second edition, vol. 5, p. 4111; German Ins. Co. v. Miller, 39 Ill. App. 633; Royal Neighbors of America v. Boman, 177 Ill. 27; Johnson v. Royal Neighbors of America, 253 Ill. 570; Niemann v. Security Benefit Ass’n, 350 Ill. 308. Plaintiff says his testimony to the effect that ho signed the application in blank, and that the material answers to the questions were written in by defendant ’s agent, Mr. Jacobson, is undisputed in the record, and that the rule stated in these cases is therefore applicable. The cases cited are distinguishable in that it appeared in each of them that there was a complete and truthful disclosure of the facts by the applicant which the agent deliberately mistranscribed. Moreover, while plaintiff’s evidence on this point is uncontradicted in the record, this is only true because the court erroneously, as we hold, excluded evidence offered by defendant to the contrary, as stated in one of plaintiff’s variant affidavits of merits. As defendant points out, these variant affidavits show a rather continuous evolution. First plaintiff said that he signed a completed application in typewritten form without reading it; second, that he answered all the questions, but signed the application in blank. Upon the trial he stated that he signed in blank and answered none of the questions in the application. The court erred in excluding the verified pleading which tended to contradict plaintiff’s testimony and erred in excluding the offer to show that the material answers in the application as to former insurance transactions were false and made for a fraudulent purpose. Fpr these errors the judgment must be reversed, and the cause remanded for another trial.

As the issues must be tried before another jury, we think it only fair to state that in the opinion of this court for the purpose of showing a fraudulent intention, evidence of similar false representations made by the plaintiff in other and later insurance applications to other companies is admissible. Gray v. St. John, 35 Ill. 222; Lockwood v. Doane, 107 Ill. 235; Taylor Coal Co. v. Dawes, 220 Ill. 145; Penn Mut. Life Ins. Co. v. Mechanics’ Savings Bank & Trust Co., 72 Fed. 413.

For the reasons stated the judgment is reversed and the cause remanded.

Reversed and remanded.

O’Connor and McSurely, JJ,, concur.


author: Mr. Justice McSurely

text:
    Paul Schneider, Appellant, v. Trae Schneider, Appellee.
    Gen. No. 38,858.
    Opinion filed October 13, 1936.
    George C. Geier and William A. L. Pellicore, both of Chicago, for appellant.
    Henry G. Hulbert, of Chicago, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff filed a bill for divorce, alleging desertion by defendant; defendant filed a cross complaint, alleging that plaintiff had deserted her; after hearing, decree was entered granting plaintiff the divorce on the ground that defendant had wilfully deserted plaintiff without any reasonable cause and finding against defendant’s cross complaint; the sum of $7.50 a week for a period of two years was ordered to be paid by plaintiff to .defendant as alimony. Plaintiff appeals, asking that the decree be modified so as to exempt him from the payment of alimony. Defendant files cross error, claiming that the court should have found that plaintiff had deserted defendant as alleged in her cross complaint, and also asking that the amount of alimony be increased to $10 a week.

The parties were married January 30, 1931, and went to live in rooms in the house of the wife’s parents, paying no rent; they lived there until July, 1934; plaintiff was a teacher of music in the.public schools, earning approximately $1,950 a year; the wife worked for her father as bookkeeper, earning $24 a month, sometimes, and also playing at concerts once in a while; no children were born of the marriage; both parties were under 30 years of age.

There was evidently a good deal of quarreling between them as to financial matters, defendant complaining that plaintiff did not pay his bills and was buying unnecessary things. July 6, 1934, defendant sought the advice of her brother, an attorney, who advised her to stay that night in his home and he would talk to plaintiff the following morning. Plaintiff testified that when he came home that night his wife was not there. Neither was she there the following day. July 7th, pursuant to a call from defendant’s brother, he went to his office and was then told by the brother that inasmuch as the couple ivas not getting along his sister wanted a divorce unless plaintiff was willing to turn over to her half of his wages and let her have the use of the automobile half of the time, and that until he should decide to do this he should take his clothes from his home and stay with his mother. Plaintiff testified that he then went to his home and got some clothes and went to his mother’s home; that when he went back to the home a few days later he found all of his clothes out on the floor of the porch with a note stating that he should leave the key to the door. Defendant testified that during this time plaintiff did not know where she was; that she did not want him to take any of her things out of their home and so she placed his clothing and things out on the porch.

The evidence justified the conclusion of the chancellor that defendant was guilty of desertion. Her own testimony supports this. She was the active party in the desertion. She in effect delivered an ultimatum to plaintiff that she would not return to him unless he acceded to her demands. The fact that defendant returned to the home of her parents where- she and plaintiff had lived, after her brother, the lawyer, had ordered plaintiff to leave their home, does not affect the situation.

We know of no case that holds the wife is entitled to alimony as a matter of right, regardless of whether the divorce has been granted because of her fault. The general rule is stated in Spitler v. Spitler, 108 Ill 120, that the right to alimony is founded upon the duty of the husband to support the wife, and when this duty ceases the right to alimony also ceases. It is generally held, in the absence of statutory provisions, that when the husband obtains a divorce on account of the misconduct of the wife, the latter will not be entitled to alimony. Where there are minor children or special circumstances alimony may be allowed although her fault has caused the divorce. But none of these circumstances is present in the instant case. There are no children and the wife continued to be employed after marriage, and no reason appears why she cannot continue to be self-supporting. We are of the opinion that the facts in the case do not justify the allowance of alimony to the wife.

We approve of the decree except as to the allowance of alimony. The decree is therefore reversed and the cause is remanded with directions to modify the decree so as to omit any requirements for the payment of alimony.

Reversed and remanded with directions.

Matchett, P. J., and O’Connor; J., concur.


text:
    Festus C. Cole, Appellee, v. H. C. Speer and Sons Company, Appellant.
    Gen. No. 38,873.
    Opinion filed October 13, 1936.

      Cummings & Wyman, of Chicago, for appellant; Austin L. Wyman and Daniel P. Nagle, of Chicago, of counsel.
    Walter S. Holden, of Chicago, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

In an action upon an alleged agreement of defendant to repurchase certain bonds at maturity, plaintiff had judgment for $2,370.31 on the finding of the court that defendant’s answer failed to set up a legal defense, and defendant appeals.

The amended complaint alleged that on or about December 24, 1926, a salesman for defendant called on plaintiff at Iron Mountain, Michigan, the home town of plaintiff, and offered to sell to him four Village of Mundelein six per cent improvement bonds at $500 each; that plaintiff orally stated he would purchase said bonds; that no writing of any kind was entered into, and plaintiff alleged that under the statute of frauds this undertaking was not binding on either party.

“That thereafter before there was any sale of said bonds and before there was any legally enforcible contract for such sale,” defendant on December 27, 1926, wrote a letter to plaintiff in Iron Mountain, Michigan, “confirming sale to you.” Also—

“Enclosed you will find statement of transaction computed as of January 3, 1927. If this is not the date on which you wish delivery made the only adjustment necessary will be in the amount of accrued interest. We will have the bonds in the hands of the Commercial Bank on that date unless instructed otherwise. Descriptive circular of this issue is enclosed.

“These are desirable bonds and in addition prompt payment of principal and interest has been guaranteed to us through repurchase agreement by Libertyville Bond and Mortgage Company, and in consideration of your purchase of these bonds from us, we hereby agree to repurchase these bonds or any of the coupons at maturity, thus making this an unusually desirable investment. ’ ’

The complaint further alleges that on or about January 3, 1927, plaintiff, relying upon the agreement of defendant to repurchase the bonds, closed the sale, paying the required amount and receiving the bonds; that shortly after October 1, 1934, plaintiff tendered the aforesaid Mundelein bonds to defendant, with coupons attached, and demanded that defendant repurchase them, which defendant refused to do; that plaintiff still has the bonds in his possession and continues to tender them to be repurchased as agreed; and plaintiff asked judgment in the amount of $2,355.72.

Defendant filed its answer to the amended complaint, admitting the oral agreement in Michigan of its salesman with plaintiff on December 24, 1926, but denies that said agreement was not binding under the statute of frauds, and alleges that it constituted a binding contract.

The answer further alleged that in said conversation nothing was said as to any undertaking of defendant to repurchase the bonds; that the agreement in its letter of December 27th to repurchase was “a pure gratuity” and without consideration, the contract having been consummated prior to the writing of the letter, and that the letter is vague and insufficient to charge the defendant, no price being referred to in the letter at which such repurchase might be made. The answer made a general denial of any obligation to plaintiff.

The cause came on for hearing upon the motion of plaintiff, after notice to defendant, challenging the legal sufficiency of defendant’s answer, and at the hearing the parties stipulated that under the statutes of the State of Michigan in effect on December 24, 1926, a contract to sell or a sale of any goods of the value of $100 or upwards shall not be enforceable by action unless there is some memorandum in writing of the contract. The court found the answer was insufficient, and defendant not asking leave to file a further answer, but electing to stand on its answer filed, the court found the issues for plaintiff and entered judgment accordingly.

Defendant argues that by plaintiff’s motion to dispose of the case on the pleadings he admitted all well pleaded facts in the answer, citing People v. Holten, 259 Ill. 219, and that where the answer states one or more good defenses defendant is entitled to be heard on proofs. Knapp, Stout Co. v. Ross, 181 Ill. 392. These are correct statements of the general rule but they are not applicable in the present case. Defendant’s allegation that an oral agreement made in Michigan on December 24th constituted a binding contract is not an allegation of a fact but a conclusion of law. Whether any contract is binding or enforceable is always a question of law. In the light of the Michigan statute of frauds it is at once apparent that this oral agreement was without any binding effect. It was no more than an offer to sell, which had no binding force until plaintiff accepted it either by some writing or by paying the purchase price.

The letter of December 27th stated the terms of the proposed sale and before this could be enforced by any action against plaintiff it must be shown that he indicated his acceptance of this in writing or by paying for the bonds. The letter stated that the sale should be consummated on January 3rd, and when on that date plaintiff paid for and received the bonds, it must be held as a matter of law that the sale was consummated subject to the terms and agreement in defendant’s letter to repurchase them upon demand. The allegation of the tender by plaintiff of the bonds and the refusal of defendant to repurchase is admitted by the pleadings.

Defendant says that under its general allegation of non-liability it was entitled to produce evidence, but under the civil practice act the plea of general issue does not avail. The answer must specifically admit or deny each allegation of the complaint. Ill. State Bar Stats. 1935, ch. 110, ¶ 168.

It is said the agreement to repurchase does not contain any price at which the repurchase should be made, therefore evidence as to the damages was necessary. The agreement is to repurchase or buy back the bonds. This clearly means to take the bonds from plaintiff at the same price he had paid for them, otherwise the agreement to repurchase would be meaningless.

It has been held that a contract to repurchase a security sold is in legal effect a guaranty. Knass v. Madison & Kedzie State Bank, 354 Ill. 554. Where the guaranty is made before sale one consideration is sufficient for the contract of sale and also the agreement to repurchase. 28 C. J. 917; Anderson v. Bills, 335 Ill. 524.

Other points are made which are not of sufficient importance to compel a reversal. There were some irregularities in the proceedings but upon the record as a whole the conclusion of the trial court was proper and the judgment is affirmed.

Affirmed.

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


author: Mr. Justice O’Connor

text:
    William L. O’Connell, Appellant, v. Gilbert Fitzpatrick, Appellee.
    Gen. No. 38,777.
    Opinion filed October 13, 1936.
    Schuyler, Weinfeld & Hennessy, of Chicago, for appellant; Howard D. Moses and Jay Stough, both of Chicago, of counsel.

      Alden, Latham & Young, of Chicago, for appellee; William T. Alden and Sidney F. Moody, both of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

The Chicago Bank of Commerce, the indorsee of a collateral judgment note for $1,000 dated October 2, 1930, due “On Demand” made by defendant, payable to the Old Dearborn State Bank, caused judgment by confession to be entered on the note against defendant. Afterward the judgment was opened up and defendant given leave to plead. The case was put at issue and on the trial the receiver of plaintiff was substituted as plaintiff. The court found in defendant’s favor and plaintiff appeals.

The record discloses that defendant has been practicing his profession as a physician and surgeon in Chicago for many years. He was a stockholder in and had business dealings with the Old Dearborn State Bank and with its predecessor, covering a period of about 10 years. On October 2, 1930, he executed the collateral note in suit, in which it is stated that he deposited as collateral security a bond for $1,000 issued by the Lake-State Bank Building, bearing interest at seven per cent and due in 1939.

March 28, 1931, the Chicago Bank of Commerce assumed the deposit liabilities of the Old Dearborn State Bank, the latter having been in failing condition for a number of years, and at that time the note in question was indorsed by the Old Dearborn State Bank and with other notes and securities was delivered to the Chicago Bank of Commerce as collateral security for its assumption of the deposit liabilities. Upon refusal of defendant to pay the note to the Chicago Bank of Commerce the bank caused judgment by confession to be entered.

Defendant’s contention in the trial court and in this court, as testified to by himself, is that for a number of years he had dealt with the Old Dearborn State Bank and its predecessor, and was well acquainted with a number of the officials of the bank; that prior to and on October 2, 1930, he was solicited by a representative of the Old Dearborn State Bank, to buy a 7 per cent $1,000 bond, secured by a first mortgage on the Lake-State Bank Building; that he told the bank representative he was not in funds at that time and thereupon the representative said he could “sign a note,” and on October 2nd he executed the note in question in payment of the bond; that he did not see the bond since it was in possession of the Old Dear-born State Bank and kept by it as collateral security for tiie $1,000 note; that later, February 17, 1931, he was advised by the issuer of the $1,000 bond that it was a second mortgage bond and at that time had little or no value; that afterward, on or about March 1,1931, a representative of the Old Dearborn State Bank demanded payment of the note; that he refused to pay the note, claiming he had been defrauded by the Old Dearborn State Bank in selling him a junior mortgage represented to be a first mortgage.

Defendant’s counsel contend that defendant, under the facts as testified to by him, had a good defense to the note as against the Old Dearborn State Bank, and that this defense is available to him against plaintiff, the Chicago Bank of Commerce, because the note was negotiated by the Old Dearborn State Bank an unreasonable time after its date, and therefore the Chicago Bank of Commerce was not a holder in due course.

On the other side, plaintiff’s position is (1) that under the particular facts in the case, the note was negotiated a reasonable time within the meaning of the Negotiable Instruments Act, (2) that the court erred in refusing to permit plaintiff to prove the custom of Chicago banks in negotiating notes payable on demand, and (3) that the court erred in refusing plaintiff a new trial on the ground of newly discovered evidence.

On the trial when plaintiff called witnesses in rebuttal, a witness who in October, 1930, was connected with the Old Dearborn State Bank testified that although his memory was not clear — more than five years having elapsed since the execution of the note in suit — he thought defendant had purchased the $1,000 real estate bond a long time prior to the execution of the note in suit. At the conclusion of the hearing the court entered judgment for defendant, and a few days thereafter plaintiff moved for a new trial, supporting his motion by an affidavit which clearly tended to show, from the records of the Old Dearborn State Bank, that defendant had purchased the $1,000 real estate bond July 17, 1928, which was more than two years before he executed the note in question, that the $1,000 note was given by defendant to the bank to evidence a loan of $1,000 made by the bank on the date of the note, and at that time defendant delivered the real estate bond to the bank as collateral security for the note.

We think it clear the court should have granted plaintiff a new trial, because if defendant had executed his note about two years after he had purchased the real estate bond (and this seems to be borne out by the records of the bank) defendant’s claimed defense would have been entirely wiped out.

Considering all the facts in this case, we think that whatever negligence plaintiff’s counsel may have been guilty of in not presenting the records of the bank on the hearing, it onght not to be controlling.

We are also of opinion that whether the note was negotiated within a reasonable time as defined by the statute, would depend to some extent upon the “usage of trade or business” between Chicago banks, and the court should have permitted plaintiff to adduce evidence on this question, as he sought to do, although many of the questions put by counsel were improperly framed, the witness being interrogated as to his “opinion” and not as to facts which it was claimed constituted a custom. The offered evidence tended to show whether or not plaintiff was a holder in due course within the meaning of the statute. Some of the pertinent provisions of that act are sections 52, 71 and 192, ch. 98, Ill. State Bar Stats. 1935.

Section 52 defines a holder in due course to be, “That he became the holder of it before it was overdue, and without notice that it has been previously dishonored, if such was the fact. ’ ’ And although the Old Dearborn State Bank had demanded payment of the note from defendant, as he testified, before the note was negotiated, this fact alone would not prevent the Chicago Bank of Commerce from being a holder in due course, for it had no notice of such demand and refusal. LaDue v. First Nat. Bank of Kasson, 31 Minn. 33; Himmelmann v. Hotaling, 40 Cal. Ill; 2 Daniel on Negotiable Instruments, 7th ed., sec. 905.

Section 71 provides: “Where it [the instrument] is payable on demand, presentment must be made within a reasonable time after its issue”; and section 192: “In determining what is a ‘reasonable time’ or an ‘unreasonable time, ’ regard is to be had to the nature of the instrument, the usage of trade or business, (if any) with respect to such instruments, and the facts of the particular case.” We had occasion to consider some of these provisions in Nagel v. J. L. Hanson, 262 Ill App. 160.

Counsel for both parties apparently take the position that the note in suit bore interest at the rate of five per cent per annum (although the note specifies interest after maturity at the rate of seven per cent per annum) and the evidence tends to show that the interest was paid monthly at the rate of five per cent per annum and indorsed on the note, which, together with the other facts, is to be considered in determining whether the note was negotiable within a reasonable time. Yates v. Goodwin, 96 Me. 90; Gershman v. Adelman, 103 N. J. L. 284; McLean v. Bryer, 24 R. I. 599; Murray v. Third Nat. Bank of St. Louis, 234 Fed. 481; National Bank v. Knight, 86 W. Va. 319.

For the reasons stated the judgment of the superior court of Cook county is reversed and the cause remanded for a new trial.

Reversed and remanded.

Matchett, P. J., and McSurely, J., concur.


author: Mr. Justice O’Connor Mr. Justice McSurely

text:
    Frances Dwyer, Appellee, v. Thomas L. Dwyer, Appellant.
    Gen. No. 38,908.

      Opinion filed October 13, 1936.
    Rehearing denied October 26, 1936.
    Socrates, Davis & Cohen, of Chicago, for appellant; Nicholas A. Socrates, of counsel.
    Teed, Kammermann & Johnson, of Chicago, for ap-pellee ; Hugh E. Johnson, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal defendant, Thomas L. Dwyer, seeks to reverse a judgment entered January 15, 1936, by the superior court of Cook county by which he was found to be in default in failing to pay $10 a week to complainant, as theretofore ordered, for the support and maintenance of a minor child of the parties. For such failure he was adjudged to be in contempt of court and it was ordered that he be committed to the common jail of Cook county for a period not to exceed six months.

The record discloses that on April 15, 1927, a decree of divorce was entered in favor of complainant against •defendant in which it was found that the parties'were married September 27, 1923; that September 28, 1924, defendant deserted and abandoned complainant. The decree further found “there was born to the parties . . . one child, Thomas E. Dwyer, now aged about three years,” and that by a decree heretofore entered ... by the County court of Cook county, the “child has been adopted by his maternal grandparents. ’ ’ December 31,1934, more than seven years after the decree of divorce, complainant filed her verified petition in the divorce suit in which she set up the marriage, the divorce, and the birth of the child, Thomas E. Dwyer, who was then alleged to be about 11 years old; that April 14, 1927, which was the day before the decree of divorce was entered, the child was adopted by Peter B. Háuber and Agues M. Hauber, his wife, parents of complainant, by proceedings in the county court of Cook county, the child’s name was changed to Thomas E. Hauber, and both complainant and defendant entered their appearance in the county court and consented to the adoption. It was further alleged in the petition that in the divorce suit complainant waived “alimony and all other claims against defendant”; that after the decree of divorce complainant lived with her parents, who had adopted the minor child, until April 23, 1931, at which time complainant’s father, Peter B. Hauber, died; that from the time of the adoption Peter B. Hauber supported and maintained the child until the day of his death, and that Peter B. Hauber’s estate was insolvent at the time he died; that after the death of Peter B. Hauber complainant and the child continued to live with Agnes M. Hauber, her mother (and the adopted mother of the child) until September, 1933, during which time complainant “was bearing the major portion of support of herself, the minor child and the said Agnes M. Hauber”; that in September, 1933, Agnes M. Hauber remarried and moved from Chicago, wheré she was living, to the State of Texas, and that since that time the minor child has been supported by complainant. It is further averred that on December 17, 1934, complainant filed a petition in the county court of Cook county to readopt the child, Thomas E. Hauber, and on December 21, 1934, a decree was entered in accordance with the prayer of the petition, and the name of Thomas E. Hauber was changed to Thomas E. Dwyer; that since the time defendant deserted complainant he has made no contribution toward its support; that after the remarriage of complainant’s mother in September, 1933, complainant has frequently requested defendant to contribute to the support of the child, but he has refused to do so. It further appears that defendant, the father of the child, was not a party to the readoption proceeding and had no notice or knowledge of it until complainant filed her petition in the instant case.

The prayer was that an order be entered requiring defendant to pay a reasonable sum for the support and maintenance of the minor child and for complainant’s attorney’s fees.

January 4, 1935, defendant filed his answer admitting most of the allegations, but setting up that by virtue of the decree of adoption he was relieved of further responsibility for the support of the child. The issue thus raised was heard by the chancellor and on J anuary 25,1935, an order was entered that defendant pay to complainant $10 a week for the support of the child and $50 to complainant for solicitor’s fees she had incurred. June 19, 1935, the court entered an order which tends to show that complainant was endeavoring, unsuccessfully, to collect the $10 a week and that defendant was likewise endeavoring to have the order requiring him to pay the $10 set aside and vacated. June 27, 1925, an order was entered which recites that the matter came on to be heard “on the return of the rule to show cause,” etc., that the court heard the evidence, “and it appearing that the defendant has paid the amount accrued under the rule to show cause heretofore entered herein,” it was ordered that the rule be dismissed, and it was further ordered that defendant pay to complainant $75 solicitor’s fees within 30 days.

January 3, 1936, complainant filed another petition in which she alleged that defendant was in default in the payment of $10 a week as ordered, and prayed that he be required to show cause why he should not be punished for contempt of court. An order was entered accordingly, and on January 15 defendant answered, admitting that he is a practicing physician, but denying that he is well able to support the minor child, admitting he was in default in making payments to the extent of $40, and contending that the court was without jurisdiction to enter the order requiring the payment of $10 a week for the support of the child. January 15, 1936, the matter was heard on the petition and answer, and defendant found to be in contempt of court, and it was ordered that he be committed to the common jail for a period not to exceed six months.

Defendant contends that the court was without jurisdiction to enter the order requiring him to pay $10 a week for the support of the child, because of its adoption by its maternal grandparents, and therefore the order adjudging him to be in contempt of court was void. If .the order was void, defendant may contest its validity by refusing to obey it, and raise the question in a prosecution for a contempt against him. Carden v. Ensminger, 329 Ill. 612; Flannery v. People 225 Ill. 62.

The question for decision therefore is, did the court, under the facts disclosed by the record, have jurisdiction- to enter the order requiring defendant to pay complainant $10 for the support of the child? We think the question must be answered in the negative. Ryan v. Foreman, 181 Ill. App. 262 (affirmed in 262 Ill. 175); Mitchell v. Brown, 18 Cal. App. 117; Younger v. Younger, 106 Cal. 377; Matter of MacRae, 189 N. Y. 142; 1 Corpus Juris, p. 1397, sec. 124.

Chap. 4 of the 111. State Bar Stats. 1935 authorizes the adoption of children and provides for the procedure in such matters. Sec. 1 provides that any reputable person may petition the circuit court or county court for leave to adopt a child not his own. Sec. 3 provides that the court shall find, if such be the fact, that the parents consent to such adoption, and other requirements approved by the statute are met, 1 ‘ a decree shall be made, setting forth the facts and ordering that from the date of the decree the child shall, to all legal intents and purposes, be the child of the petitioner or petitioners, and may decree that the name of the child be chang-ed according to the prayer of the petition.” Sec. 5 of the act specifies the rights of the adopted child “shall be deemed, for the purpose of inheritance by such child, and his descendants and husband or wife, and other legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoption, the same as if he had been born to them in lawful wedlock, except that he shall not be capable of taking property expressly limited to the body or bodies of the parents by adoption, nor property from the lineal or collateral kindred of such parents by right of representation.” And by sec. 6 it is provided that “The parents by adoption and their heirs shall take by descent, from any child adopted under this or any other law in this State for the adoption of children . . . only such property as he has taken or may hereafter take from or through the adopting parents, . . . but the parents by adoption and their heirs shall not inherit any property which such child may take or have taken by gift, bequest, devise or descent, from his kindred by blood.” Sec. 8 provides, “The natural parents of a child so adopted shall be deprived, by the decree, of all legal rights, as respects the child, and the child shall be freed from all obligations of maintenance and obedience as respects such parents.”

In Ryan v. Foreman, 181 Ill. App. 262, a policeman of Chicago and his wife adopted their granddaughter who was under 16 years of age at the time of the adoption. Afterwards the policeman died, leaving him surviving his widow and the adopted child. The widow applied for a pension under the Police Pension Fund Act and was granted a pension of $600 per annum. The widow continued to support and maintain the adopted child, who resided with her until the widow died. Thereafter the guardian of the adopted child (a minor) applied for a pension. The Police Pension Fund Act provided that after the death of a policeman who had been employed for more than 20 years in the police department, a pension would be paid to his widow or “child or children under sixteen years of age,” and it was held that the adopted child came within the provisions of the act and was entitled to a pension. An appeal was taken to this court where the judgment was affirmed. The court there said (pp. 266, 267): “Nor are the rig’hts of an adopted child limited merely to the right of inheritance from the adopting parent. The section of the adoption act above quoted not only gives to the adopted child the right of inheritance from the adopting parent, but also confers upon the adopted child all ‘other legal consequences and incidents of the natural relation of parents and children,’ with certain specific exceptions which are not here involved. One of the legal consequences and incidents of the natural relation of parents and children is that the parents are legally bound for the support, maintenance and education of the children so long as they are of tender years and unable to provide for themselves. Plaster v. Plaster, 47 Ill. 290, 291. By section 8 of the Adoption act the natural parents of an adopted child are deprived, by the decree of adoption, of all legal rights, as respects the child, and the child is freed from all legal obligations to his natural parents. This leaves the adopted child entirely dependent upon the parents by adoption for means of - support and education. The adopting parents, from the date of the adoption, are legally bound to support and maintain the child so adopted, and the child thenceforth owes to them the duties which would otherwise be due to its natural parents. There is thus a complete severance of the natural relation of parent and child, and a substitution therefor of a legal relation which is declared to be the same as the natural relation in all its legal incidents and consequences, except only the right to take property expressly limited to bodily heirs and to inherit property from the adopting parents’ kindred by right of representation.” The court then discusses cases somewhat analogous from New York, Maine, and Massachusetts, and the case of Sayles v. Christie, 187 Ill. 420, which holds, in substance, that the relation between an adopted child and the adopting parents is the same as the relation between a child and its natural parents except as to the question of inheritance, and the court quoted from page 435 of the Sayles case the following: “Sere the adopted child, Minnie Christie, was, in the eye of the law, as much the child of Frederick S. Mather, as though she had been his natural child.” On appeal of the Ryan case to the Supreme Court (262 Ill. 175) the court after discussing the Police Pension Fund Act, and referring to the adoption law of this State, said (p. 180): “The legislature has also designated by law that an adopted child is to all legal intents and purposes the child of the adopting parents, and ‘shall be deemed, for the purposes of inheritance by such child, and his descendants and husband or wife, and other legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoption, the same as if he had been born to them in lawful wedlock,’ the only exception being that ‘he shall not be capable of taking property expressly limited to the body or bodies of the parents by adoption nor property from the lineal or collateral kindred of such parents by riglit of representation.’ ” The Supreme Court then discusses a number of authorities from this and other States on the question of the adoption of children, and affirmed the judgment of the Appellate Court.

In the instant case, by the decree of adoption the minor child, as said by the Supreme Court in the Ryan case, was “to all legal intents and purposes the child of the adopting parent, ’ ’ and, in addition to the rights of inheritance, to “other legal consequences” and incidents of the natural relation of parents and children, the same as if it had been born to them in lawful wedlock. It follows, therefore, that after the decree of adoption the adopting parents become liable for the support of the adopted child, and the natural father was relieved of such obligations, as said by this court in the Ryan case, above quoted. The court therefore had no jurisdiction to enter the order requiring the natural father to pay $10 a week as above stated, for the support of the child.

The only case tending to hold that the natural father of a minor child was liable for its maintenance after the child had been adopted is McNemar v. McNemar, 137 Ill. App. 504. In that case Noah B. McNemar, the natural father of a minor child, brought suit against his father, Christian J. W. McNemar, who had adopted the child, to recover for board, clothing and medical care of the minor child while in possession of the plaintiff. There was a directed verdict for the defendant, the plaintiff appealed, and the judgment was affirmed. The court there said (p. 506): “It is well settled in our state that the relation that exists between parent and child is of so intimate a character that the law never implies a contract to pay money either for support or service, and in the absence of an express promise to pay for the same no recovery can be had by one against the other. The law indulges the general presumption that what is done for each other by parties thus nearly related is done gratuitously and as the prompting of natural affection. ...”

(p. 507): “The statute governing adoption in our state makes an adopted child the same as if he had been born of the adopting parents in lawful wedlock for the purpose of inheritance, yet such statute also provides that such parents by adoption shall take by descent from the child adopted, only such property as he may take through the adopting parents. The statute leaves the fights of inheritance between such adopted child and his natural parent the same as though no adoption had taken place as to all property not inherited or taken by the child from its adopting parents, and does not in terms or by implication attempt to relieve a natural parent from the duty he owes his child to care for and support him. The aim and purpose of the statute was not to destroy or impair the relation that exists between parent and child, but rather to preserve and continue it.

“The relation of parent and child is not ended by the adoption, but fostered instead, and since the father is primarily liable for the support and care of his own child, we hold that the natural father cannot recover for the care and support of his child while in his own home and custody, against a parent by adoption, in the absence of an express agreement to pay.

“In the case before us there is no claim, made that appellee in any way or at any time promised appellant that he would pay for the board or care of Leon.”

We are unable to agree with what is said in the opinion just quoted. As said by the Appellate and our Supreme Court in the Ryan ease, the statute of adoption related not - only to the matter of inheritance between the adopting parents and the child adopted, but it also expressly states that other legal consequences and incidents are provided for and that the relations between the parents by adoption and the child adopted are the same “ as if he had been bom to them in lawful wedlock.”

For the reasons stated the judgment of the superior court of Cook county is reversed, but since we hold that the trial court was without jurisdiction for the reasons stated, the matter will not be remanded.

Judgment reversed.

Matchett, P. J., concurs.

Mr. Justice McSurely

dissenting: The adoption proceedings by the mother revoked absolutely the prior adoption and restored the minor child to his natural parents, with all their legal obligations to support him. His status then was as if his legal and natural relations to both parents had never been changed and, as the decree of divorce made no provision for the child, the court had jurisdiction to compel the father to contribute to his support.

Moreover, public policy should not allow either parent, able to support a minor child, to avoid this duty when the .alternative is to make the child a charge upon the public.


text:
    Hawthorne Park District, Appellee, v. Seipp, Princell and Company, Appellant.
    Gen. No. 38,932.
    Opinion filed October 13, 1936.
    Poppenhusen, Johnston, Thompson & Raymond, of Chicago, for appellant; Edward J. Fleming, of Chicago, of counsel.
    Julius T. Skrydlewski, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff, a municipal corporation, brought suit against defendant to recover $626.45, claiming that this amount was the compound interest it had paid defendant on overdue interest coupons. There was a trial. before the court without a jury, a finding and judgment in plaintiff’s favor for the amount of its claim, and defendant appeals.

The record discloses that plaintiff, a municipal corporation, issued its bonds to raise money for municipal improvements, in accordance with the statute. The interest on the, bonds was payable semiannually, evidenced by coupons. The coupons were not paid on the date the interest fell due and interest was computed at five per cent on the face amount of the coupons. Plaintiff’s position is that the statute authorized it to issue bonds which should “bear interest at not exceeding five per cent, per annum, payable semi-annually” (sec. 33, ch. 105, ¶ 327, Ill. State Bar Stats. 1935), and that the payment of compound interest being in contravention of the statute, was illegal and void.

It seems to be agreed by the parties that the compound interest involved was freely and voluntarily paid by plaintiff and without fraud, duress or misrepresentation; and defendant’s position is that in these circumstances the law will not permit a recovery of the compound interest so paid. On the other hand, plaintiff’s position is that there is an exception to the general rule of law which permits a recovery on behalf of a municipal corporation under the facts disclosed.

There is no provision in the interest coupons that if not paid at maturity they will draw interest thereafter. Interest is a creature of the statute alone (City of Pekin v. Reynolds, 31 Ill. 529) and does not run against a municipality except by express agreement (South Park Comm. v. Dunlevy, 91 Ill. 49; Central Lime & Cement Co. v. Leyden-Ortseifen Co., 245 Ill. App. 48) and except where money is “wrongfully obtained or where it is lawfully obtained and unlawfully and wrongfully withheld” by a municipality. Conway v. City of Chicago, 237 Ill. 128; Vider v. City of Chicago, 164 Ill. 354; City of Danville v. Danville Water Co., 180 Ill. 235.

In People v. McCord, 143 Ill. App. 28, where an action of debt was brought for the use of the county of Vermilion against a former county treasurer and the sureties on his official bond on the ground that the treasurer had been paid a salary in excess of that provided by law, the court said (p. 34): “In Cumberland County v. Edwards, 76 Ill. 544, it was held that a county was not estopped by the action of the county board in passing upon and approving a collector’s account, containing charges for illegal fees, and that the county board was powerless to allow as fees or commissions more than the sum fixed by law, and such allowance binds no one. . . .

“Upon this question we approve what was said by this court in McLean County v. County of Montgomery, 32 Ill. App. 131, as follows: 'When a county board attempts to make an allowance not authorized by law, it is acting without jurisdiction, entirely beyond its power, and its acts are utterly void and do not bind the county. The board is the agent of the county, and when allowing a claim against it over which it has jurisdiction, and the amount to be paid is discretionary, the conclusion reached would no doubt be binding upon the county; but when the board seeks to appropriate funds in the treasury in direct contravention of the statute it exceeds its powers, and in no sense does it' estop the county from ignoring and repudiating such action. ’ The doctrine that a payment voluntarily made cannot be recovered back has no application here. In Allegheny County v. Grier, 179 Pa. 639, it was held that the maxim volenti non fit injuria had no application to the illegal payment of public funds to public officers.” The court then discusses the case of People v. Foster, 133 Ill. 496, which is relied upon by counsel for defendant in the instant case, and said that the rule there announced did not prevent a municipality from recovering back the money paid where the payment was contrary to law; that the public officials in making such payments acted without jurisdiction and entirely beyond their powers, and these acts were utterly void. So in the instant case, we are of opinion that the payment of compound interest by plaintiff was contrary to the provisions of section 33, above quoted, and that the payment of such interest was utterly void and recovery can be had.

The judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

Matchett, P. J., and McSurely, J., concur.


author: Mr. Presiding Justice Hall

text:
    First District.
    Phillip Weinberg, appellee, v. Frank C. Nicodemus, Jr., and Norman B. Pitcairn, appellants.
    Gen. No. 38,310.
    Opinion filed June 22, 1936.
    John Gibson Hale, for appellants. William Feldman, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    George Placzkiewicz, appellee, v. Wilhelmina K. Borgmeier and Adolph J. Borgmeier, appellants.
    Gen. No. 38,396.
    Opinion filed June 22, 1936.
    Rehearing denied July 6, 1936.
    E. R. Borgmeier, for appellants; A. L. Cronin, of counsel. Jarecki & Brautigam, for appellee; James W. Cotter, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Genevieve Argentina Del Boccio, appellee, v. Leslie Maringer and Virgil Maringer, appellants.
    Gen. No. 38,437.
    Opinion filed June 22, 1936.
    Cassels, Potter & Bentley, for appellants; Ralph F. Potter, Leslie H. Vogel and E. Douglas Schwantes, of counsel. Hirsch E. Soble and Benjamin Weinberg, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court,


text:
    Edward E. Kleinschmidt, appellee, v. Florence Otis, appellant.
    Gen. No. 38,458.
    Opinion filed June 22, 1936.
    Cassels, Potter & Bentley, for appellant; Leslie H. Vogel and John R. Whitman, of counsel. Stearns & Jones, for appellee; Lloyd M. McBride, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    In re Estate of John Farson Hesler, a minor. Carl R. Hesler, guardian, appellant, v. John Farson Hesler, minor, appellee.
    Gen. No. 38,467.
    Opinion filed June 22, 1936.
    Rehearing denied July 6, 1936.
    Lucius, Buehler & Lucius, for appellant; Albert B. Lucius, of counsel. Tolman, Chandler So Dickinson, for appellee; Frederick Dickinson, Howard B. Bryant and Alex Bison, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    H. E. Wackerle, appellee, v. Globe Indemnity Company, appellant.
    Gen. No. 38,477.
    Opinion filed June 22, 1936.
    Charles A. Phelps, George E. Fitzgerald and Robert C. Springsguth, for appellant. Edward D. Feinberg, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Oscar Nelson, complainant, v. Citizens Trust and Savings Bank et al., defendants. Continental Illinois National Bank and Trust Company of Chicago, executor of the last will and testament of Ossian Cameron, appellant, v. William L. O’Connell, appellee.
    Gen. No. 38,492.
    Opinion filed June 22, 1936.
    Edward H. S. Martin, for appellant. Edward J. Hess, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of t.he court.


author: Mr. Justice Hebel

text:
    Maud Hartley, appellee, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 38,369.
    Opinion filed June 22, 1936.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and William S. Allen, of counsel. Bowe & Bowe, for appellee; John D. Casey, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Cornelius Rottier, appellant, v. Doughnut Equipment Corporation et al., appellees.
    Gen. No. 38,471.
    Opinion filed June 22, 1936.
    Rehearing denied July 6, 1936.
    McCarthy & Toomey, for appellant; Frank A. McCarthy, John E. Toomey and James C. O’Brien, Jr., of counsel. Arthur A. Sherrard and Charles D. Fithian, for appellees; Arthur A. Sherrard, Charles D. Fithian and Thomas J. Finnegan, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    The Prudential Insurance Company of America, appellant, v. Carrie Johnson, appellee.
    Gen. No. 38,481.
    Opinion filed June 22, 1936.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and William S. Allen, of counsel. Clyde L. Todd, for appellee; Lee D. Mathias, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    William B. Uihlein, appellant, v. M. Faith McAuley, appellee.
    Gen. No. 38,507.
    Opinion filed June 22, 1936.
    Rehearing denied July 6, 1936.
    Winston, Strawn & Shaw, for appellant; James H. Cartwright and Frank B. Gilmer, of counsel. Ivor Jeffreys, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Lillian M. Martin, appellee, v. Amanda K. Strubel et al., appellants.
    Gen. No. 38,560.
    Opinion filed June 22, 1936.
    Rehearing denied July 6, 1936.
    Charles P. R. Macaulay, for appellants; Gerald Turnbull and E. H. Kubitz, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.


author: Mr. Justice Denis E. Sullivan

text:
    The Live Stock National Bank of Chicago, administrator of the estate of James J. Drymiller, deceased, appellee, v. Albert Hilberg et al., on appeal of Albert Hilberg, appellant.
    Gen. No. 38,485.
    Opinion filed June 22, 1936.
    Rehearing denied July 6, 1936.
    John A. Bloomingston, for appellant. Alfred Roy Hulbert, for ap-pellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Isabelle Barger, appellee, v. National Paint and Wall Paper Company, appellant.
    Gen. No. 38,540.
    Opinion filed June 22, 1936.
    Rehearing denied July 6, 1936.
    Miller, Gorham, Wales & Adams, for appellant; Edward R. Adams, Herbert C. DeYoung and Charles F. White, of counsel. Altheimer, Mayer, Woods & Smith, for appellee; A. B. Manion, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Mary Schaller, appellee, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 38,626.
    Opinion filed June 22, 1936.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and William S. Allen, of counsel. William J. Ryan, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Alex and Pearl Levinson, appellees, v. Harry L. Tirsway, defendant. Harry L. Tirsway for use of Alex and Pearl Levinson, appellees, v. Consoer, Townsend and Quinlan, Inc., appellant.
    Gen. No. 38,729.
    Opinion filed June 22, 1936.
    Theodore A. Kolb, for appellant. No appearance for appellees.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Loretta Drymiller et al., appellants, v. Albert W. Hilberg, appellee.
    Gen. No. 38,737.
    Opinion filed June 22, 1936.
    Rehearing denied July 6, 1936.
    Alfred Roy Hulbert, for appellants. John A. Bloomingston, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Hattie Greenberger, plaintiff in error, v. Barbara O’Neill and Henry Friedman, defendants in error.
    Gen. No. 38,634.
    Opinion filed June 29, 1936.
    Edgar Bernhard, for plaintiff in error. Robert E. Downs, for certain defendant in error; Joseph B. Lofton and William J. Gleason, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Frank C. Kuhn and Annie Bartels, appellees, v. Spiegel’s House Furnishing Company et al., appellants.
    Gen. Nos. 38,679, 38,680.
    Opinion filed June 29, 1936.
    Rehearing denied July 10, 1936.
    Samuel A. Ettelson and Leonard B. Ettelson, for appellants; Samuel A. Ettelson, Edward C. Higgins, Leon R. Gross and Herbert A. Salz-man, of counsel. Miller, Gorham, Wales and Adams, for appellees; Amos C. Miller, Edward R. Adams and Herbert C. DeYoung, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Gordon A. Ramsay, appellant, v. Jacob J. Price, appellee.
    Gen. No. 38,759.
    Opinion filed June 29, 1936.
    Rehearing denied July 10, 1936.
    Frederick A. Brown, for appellant; G. Gale Roberson, of counsel. Philip A. Weinstein, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Sarah Gold, appellant, v. Riverview Park Company, appellee.
    Gen. No. 38,770.
    Opinion filed June 29, 1936.
    Lou Nathanson, for appellant; Joseph J. Ticktin, of counsel. David S. Schechter, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    R. G. Lydy, Inc., appellee, v. Pauline Porter White, appellant.
    Gen. No. 38,780.
    Opinion filed June 29, 1936.
    Vernon R. Loucks and A. J. Hennings, for appellant. Thomas L. Marshall and William G. Blood, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Mabel Winzenburg, appellee, v. Girard Fire and Marine Insurance Company, appellant.
    Gen. No. 38,790.
    Opinion filed June 29, 1936.
    Rehearing denied July 10, 1936.
    Silber, Clausen, Hirsh & Woley, for appellant. Ekern & Meyers, for appellee; Russell H. Mathias and Luther F. Binkley, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Samuel H. Gilbert, appellant, v. James Zajicek and Albie Zajicek, appellees.
    Gen. No. 38,808.
    Opinion filed June 29, 1936.
    Robert L. Floyd, for appellant. Everett G. Ballard and George.E. Billett, for appellees.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Lippel and Feit, Inc., appellee, v. Albert J. Horan, appellant.
    Gen. No. 38,822.
    Opinion filed June 29, 1936.
    Mayer Goldberg, for appellant. Lipman, Gordon & Bloch, for appel-lee; David I. Lipman, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Rose Manaster, appellant, v. Harry’s New York Cabaret, Inc., appellee.
    Gen. No. 38,844.
    Opinion filed June 29, 1936.
    Louis Eisenman and John B. Fruchtl, for appellant. Frank J. Link, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    William E. Maher, appellee, v. The New York, Chicago and St. Louis Railroad Company, appellant.
    Gen. No. 38,852.
    Opinion filed June 29, 1936.
    Rehearing denied July 10, 1936.
    Winston, Strawn & Shaw, for appellant; Silas H. Strawn, Harold A. Smith and Douglas C. Moir, of counsel. Joseph D. Ryan and Louis P. Miller, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Robert Himmel, appellant, v. Edward Sager, appellee.
    Gen. No. 38,763.
    Opinion filed June 29, 1936.
    Landis, Landis & Landis, for appellant; Alvin Landis, of counsel. Edwin Terwilliger, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Anne Henson, appellee, v. Alma Neumann et al., appellants. Louise Regel, appellant.
    Gen. No. 38,778.
    Opinion filed June 29, 1936.
    Hubbard, Baker & Rice, for certain appellant. G. A. Buresh, for certain other appellant. Ward H. Harris and Channing L. Sentz, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Frank Wodecki, appellee, v. Harold M. Pitman Company, appellant.
    Gen. No. 38,752.
    Opinion filed June 29, 1936.
    Rowe & Bailey, for appellant; Joseph A. Bailey and Henry H. Caldwell, of counsel. Samuel L. Cohen, for appellee; Morris K. Levin-son, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Peter Quaracino, administrator of the estate of Tomasina Quaracino, deceased, appellee, v. Societa Agricola Operaia S. Cristoforo E. Maria Vergine Incoronata di Ricigliano, appellant.
    Gen. No. 38,766.
    Opinion filed June 29, 1936.
    Rehearing denied July 10, 1936.
    John S. Flannery, for appellant. Anthony J. Mentone, for appellee; Irving Breakstone, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice John J. Sullivan

text:
    Three Best Cleaners, Inc., appellee, v. William D. Meyering, appellant.
    Gen. No. 38,596.
    Opinion filed July 3, 1936.
    Rehearing denied July 14, 1936.
    Abrams, Sherman & Lewis, for appellant; Irving S. Abrams, of counsel. Andalman, Shamberg & Topper, for appellee; Maxwell N. Andalman, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


text:
    Walter Hackett, appellant, v. Riverview Park Company, appellee.
    Gen. No. 38,728.
    Opinion filed July 3, 1936.
    Rehearing denied July 14, 1936.
    Thomas E. Keane, for appellant; James R. O’Leary and Oscar M. Wolff, of counsel. Robertson, Crowe & Spence, for appellee; Eugene P. Kealy, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.


author: Mr. Justice Friend

text:
    City of Chicago v. Chicago and Northwestern Railroad Company et al. In re Petition of Daniel L. Madden and Edward J. Kelley, appel-lees, v. Sarah L. Johnson et al., respondents, on appeal of Sarah L. Johnson, appellant.
    Gen. No. 38,108.
    Opinion filed July 3, 1936.
    Roy S. Gaskill, for appellant. Edward J. Kelley, for appellees.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    City of Chicago v. Chicago and Northwestern Railroad Company et al. In re Petition of Daniel L. Madden and Edward J. Kelley, petitioners, v. Sarah L. Johnson et al., respondents. Elaine Johnson Burgess and Isabelle C. Johnson, plaintiffs in error, v. Daniel L. Madden et al., defendants in error.
    Gen. No. 38,109.

      Opinion filed July 3, 1936.
    Roy S. Gaskill, for plaintiffs in error. Edward J. Kelley, for defendants in error.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    James D. Huestis, appellee, v. Neo-Gravure Company of Chicago, appellant.
    Gen. No. 38,383.
    Opinion filed July 3, 1936.
    Campbell, Clithero & Fischer, for appellant; Carlton L. Fischer and Raymond P. Fischer, of counsel. Teller, Levit, Silvertrust & Levi, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Victor Wieczorek, administrator of the estate of Ida Wieczorek, deceased, appellee, v. The Prudential Insurance Company of America, appellant.
    Gen. No. 38,491.
    Opinion filed July 3, 1936.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and William S. A’llen, of counsel. Frank Greskowiak and Ewart Harris, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


author: Mr, Justice Friend

text:
    Walter C. Erikson, appellee, v. Chicago Park District, appellant. Harry Bairstow, appellee, v. Chicago Park District, appellant.
    Gen. No. 38,499.
    Opinion filed July 3, 1936.
    Rehearing denied July 14, 1936.
    James M. Slattery, for appellant; Philip A. Lozowick, of counsel. Charles V. Falkenberg and Gustav E. Beerly, for appellees; John F. Diffenderffer, Jr., of counsel.
   Mr, Justice Friend

delivered the opinion of the court,


text:
    Tauber Motors, Inc., appellant, v. Henry S. Tauber for use of Maurice E. Zuker et al., appellee.
    Gen. No. 38,519.
    Opinion filed July 3, 1936.
    John J. Griffin, for appellant. Harry S. Stark, for appellee; Ellis Byman, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Willard Westman, appellee, v. Tires Incorporated, appellant.
    Gen. No. 38,602.
    Opinion filed July 3, 1936.
    O’Brien & Hanrahan, for appellant; Matthew J. O’Brien, of counsel. Thomas M. Morris, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    John Stryzewski and Anthony Poppert, appellees, v. American Motorists Insurance Company, appellant.
    Gen. No. 38,615.
    Opinion filed July 3, 1936.
    Eckert & Peterson, for appellant; A. R. Peterson and Walter W. Ross, Jr., of counsel. Greenfield & Reiff, and Jacob G. Grossberg, for appellees.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Mary Daubner, appellee, v. John Stenberg, appellant. Frank Gebhardt, appellee, v. John Stenberg, appellant.
    Gen. No. 38,635.
    Opinion filed July 3, 1936.
    Wilson So MeIlvaine, for appellant; J. F. Dammann, S. K. Jackson and K. F. Montgomery, of counsel. Royal W. Irwin, for appellees.
   Mr. Justice Friend

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    United States Fidelity and Guaranty Company, appellant, v. Albert Sabath, appellee.
    Gen. No. 38,411.

      Opinion filed July 3, 1936.
    Rehearing denied July 14, 1936.
    William J. Flaherty, for appellant; George H. Mason and Donald H. Haider, of counsel. Charles Hudson, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Robert Osborn Blair et al., appellants, v. Better Real Estate Improvement Corporation et al., defendants. Charles P. Schwartz and Lavinia S. Schwartz, appellees.
    Gen. No. 38,442.
    Opinion filed July 3, 1936.
    Rehearing denied July 14, 1936.
    Tatge & Tatge, for appellants; Robert F. Kolb, of counsel. Milton M. Adelman, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Lester Jankowski, appellant, v. John P. Kobrzynski, appellee.
    Gen. No. 38,515.
    Opinion filed July 3, 1936.
    J. Colburn Hamilton, for appellant; Leonard & Leonard and Gordon McLeish Leonard, of counsel. Benjamin H. Vanderveld, for appellee; Aaron M. Homel, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Olga M. Janelunas, executrix of the estate of Kazimir Muliolis, deceased, appellee, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 38,555.
    Opinion filed July 3, 1936.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and William S. Allen, of counsel. Earl J. Walker, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Central States Finance Company, appellee, v. Adolph Schultz et al., defendants. London and Lancashire Indemnity Company of America, appellant.
    Gen. No. 38,580.

      Opinion filed July 3, 1936.
    Charles E. Smith, for appellant; George J. Haddad, of counsel. Arnold Seeder and David Brandwein, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Rogers Park Post, No. 108, Department of Illinois, The American Legion, appellee, v. Chicago Park District, appellant.
    Gen. No. 38,590.
    Opinion filed July 3, 1936.
    James M. Slattery, for appellant; Philip A. Lozowick, of counsel. Theodore W. Miller, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Mabel Issleb, appellee, v. Joseph Wolek, appellant.
    Gen. No. 38,620.
    Opinion filed July 3, 1936.
    John A. Bloomingston, for appellant. Ryan, Sinnott & Miller, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Harry B. Kaung, plaintiff in error.
    Gen. No. 38,643.
    Opinion filed July 3, 1936.
    Irving Block, for plaintiff in error. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Richard H. Devine and John T. Gallagher, Assistant State’s Attorneys, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. John S. Rusch, defendant in error, v. Louis Matthiesen et al., plaintiffs in error.
    Gen. No. 38,551.

      Matchett, P. J., dissents.
    Opinion filed July 7, 1936.
    Robert Irmiger, for plaintiff in error; Robert Irmiger and Thomas J. McCormick, of counsel. Otto Kerner, Attorney General, Thomas J. Courtney, State’s Attorney, and Ditchburne & Lounsbury, for defendant in error; Thomas J. Johnson, Jr., of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Alice Hoffman, appellee, v. John Joseph Courts, appellant.
    Gen. No. 38,818.
    Opinion filed July 7, 1936.
    Pomeroy & Colitz, for appellant; Paul F. Pomeroy, of counsel. Thomas J. Courtney, State’s Attorney, for appellee; Edward E. Wilson, Richard H. Devine, Melvin S. Rembe and John T. Gallagher, Assistant State’s Attorneys, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Richard Newton, administrator of the estate of Josephine Newton, deceased, appellee, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 38,839.
    Matchett, P. J., dissents.
    Opinion filed July 7, 1936.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and William S. Allen, of counsel. Henry C. Ferguson and David H. Bowen, for appellee; Henry C. Ferguson, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    William E. Wilson, administrator of the estate of Alexander Krauchunis, deceased, appellant, v. Chicago and Western Indiana Railroad Company, appellee.
    Gen. No. 38,914.
    Opinion filed July 7, 1936.
    Earl J. Walker, for appellant. John A. Bloomingston and Barse, Kassel & Gillen, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Ella Wilson, appellee, v. The National Life and Accident Insurance Company, appellant.
    Gen. No. 38,921.
    Opinion filed October 13, 1936.
    Murphy O. Tate and Leo M. Tarpey, for appellant. Charles A. Wilson, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Metropolitan Trust Company, appellant, v. E. LeQuatte et al., ap-pellees.
    Gen. No. 38,947.
    Opinion filed October 13, 1936.
    Charles E. Carpenter, for appellant; John C. Melaniphy, of counsel. Robertson, Crowe & Spence, for certain appellee; Burt A. Crowe, of counsel. Leo G. Hana, for certain other appellees.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Michael Bierut, appellant, v. Wladyslaw Setlak and Mary Setlak, appellees.
    Gen. No. 38,825.
    Opinion filed October 13, 1936.
    Levinson & Levinson, for appellant. Kelner & Kelner, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Walker W. Tackett, appellee, v. William C. Tackett et al., appellants.
    Gen. No. 38,848.
    Opinion filed October 13, 1936.
    Litsinger, Healy, Reid & Bye, for appellants; Daniel M. Healy, of counsel. Benjamin H. Ehrlich and Aaron H. Cohn, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Jacob Michalik, administrator of the estate of Stanley Michalik, deceased, appellee, v. City of Chicago, appellant.
    Gen. No. 38,913.

      Opinion filed October 13, 1936.
    Barnet Hodes, Corporation Counsel, and A. M. Smietanka, City Attorney, for appellant; John J. Sullivan and Lionel J. Berc, Assistant Corporation Counsel, of counsel. Samuel M. Kane and Leo Segall, for appellee; Leo Segall, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Nellie Ramsey, appellee, v. Dr. J. Frank Armstrong, appellant.
    Gen. No. 38,924.
    Opinion filed October 13, 1936.
    Macon H. Huggins and James E. White, for appellant. Robert J. Millman and Joseph L. Herr, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Oscar Nelson, complainant, v. Union Bank of Chicago, defendant. Lewis M. Williams, appellee, v. James S. Rodie, appellant.
    Gen. No. 38,943.
    Opinion filed October 13, 1936.
    Schuyler, Weinfeld & Hennessy, for appellant; Theodore E. Zahler and Lawrence Nelson, Jr., of counsel. Kamfner, Halligan & Marks, for appellee; Samuel M. Lanoff, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.