text:
    Central Illinois Company, Appellee, v. Charles F. W. Nichols, Appellant.
    Gen. No. 38,446.
    Opinion filed June 22, 1936.
    Rehearing denied July 6, 1936.
    Harris F. Williams and Burrell J. Cramer, both of Chicago, for appellant.
    Fisher, Boyden, Bell, Boyd & Marshall, of Chicago, for appellee; Earl K. Schiek, of Chicago, of counsel.
   Mr. Presiding Justice

Hall delivered the opinion of the court.

On September 1, 1923, the defendant, Charles F. W. Nichols, executed the following instrument: “ $39,195.03 Chicago, Illinois September 1st, 1923 30604

“After date, and subject to the terms of a certain creditors’ ag'reement of September 1st, 1923,1 promise to pay to the order of Central Trust Co. Thirty Nine Thousand One Hundred Ninety Five and 03/100 Dollars at the office of James Rosenthal, Chicago, Illinois. Value received.

No. 84 C. F. W. Nichols’’

Thereafter, the following indorsements were placed on this instrument:

“Pay to order of -Central-Illinois Company without recourse.

Central Trust Co.
Central Trust Company of Illinois.
By E. B. Tilton,
Vice President
5/3/24 Pd. on a/c within note 979.88
8/9/25 Pd. on a/c within note 979.88
9/1/26 Pd. on a/c within note 783.90
(4 money stamps and seal) ”

On September 1, 1923, the following document was executed:

“Creditor’s Agreement Dated September 1, 1923
“To Whom It May Concern:

“Some little time ago the writer was called into conference by Mr. Charles F. W. Nichols on account of financial difficulties that had arisen in the Charles F. W. Nichols Company.

“The writer, having been personally acquainted with Mr. Charles F. W. Nichols for twenty years, knowing of his integrity and great ability, was very glad to be able to be of assistance in any way that might be constructive and be of benefit to the advertising business in general.

“At the outset, the writer was anxious to know three things: The volume, the class of business, the profits.

“The volume exceeded a million and a quarter, the accounts were all high-grade and taken at card rates. The business suffered from lack of actual working capital.

‘ ‘ This, as the writer understands, was brought about not from losses that were made within the business, but because Mr. Charles F. W. Nichols, a little over two years ago, joined with three or four other men (all business men of high standing") in endeavoring to help a friend who had got into difficulties, but it seems that Mr. Charles F. W. Nichols and his friends who had joined with him had been deceived as to the affairs of the friend that they had lent their aid to, the result being very heavy losses to all concerned.

“Some of Mr. Charles F. W. Nichols’ friends advised that he take advantage of the bankruptcy act, but it is only to the credit of his willingness to do the right thing that he refused to do this and refused to surrender his business which showed such wonderful progress and endeavored to pay off all of his debts, not only the legal debts but those that he considered moral, thereby burdening himself with bank indebtedness, and other matters that he was only indirectly associated with.

“Thus, in reducing his finances to nil, the profits of his business began to suffer, as he was unable to take all of his cash discounts and also unable to take on other new business that would necessitate additional working capital. He is now at a point where, unless he has sufficient capital, it would be useless for him to struggle with the situation any longer.

“After the writer’s analysis, he has found that the business is fundamentally sound, so far as functioning as an advertising agency is concerned, with the exception that it lacks the necessary capital.

“Therefore, the writer is willing to enter into an agreement (without assuming any financial obligations) to supply $100,000 as a loan to the corporation and also supervise in such a way that the corporation will from that time forth pay all of its obligations on the cash discount day, providing that the following program is entered into.

“(1) That all of those having unsecured claims against the corporation accept Mr. Charles F. W. Nichols’ personal note or notes,-having the obligation lie with Mr. Charles F. W. Nichols only, and releasing the corporation of its present indebtedness.

“ (2) Then there will be a trustee appointed who will have supervision over a trust fund for the purpose of liquidating the notes of Mr. Charles F. W. Nichols. This will consist of the following:

“(3) Mr. Charles F. W. Nichols will receive 5% of the billing, which on a million and a quarter a year would mean $62,500. Out of this Mr. Charles F. W. Nichols will receive his living expenses only, the balance to go to the trust fund, to be paid out pro rata each six months, all unsecured creditors being treated in the same and exact manner.

“(4) That the said Charles F. W. Nichols should be insured in the sum of $100,000.00 for the benefit of said trust fund, the premiums upon such insurance to be paid by the Charles F. W. Nichols Company, and not out of said trust fund.

“It is only fair to suppose after a careful analysis, that Mr. Charles F. W. Nichols, being relieved of his present worries and financial difficulties, will quickly increase this billing, as he has proved himself a very capable and very constructive advertising man, thoroughly understanding his business.

“The writer, having been in the advertising business for approximately thirty years, and having been successful, believes himself competent in analyzing a situation of this kind, and as he regards all of the publishers as his sincere friends, knowing that he would not under any circumstances recommend to a publisher that which he did not honestly believe would be fulfilled, he wishes to make this statement in this manner and in this manner alone can the publishers ever hope to get their money out of this business.

“It is a successful business and can be promoted along the lines outlined above so that no one will lose any money and in the opinion of the writer will be beneficial to the advertising world.

“Tours very truly,
“Signed, E. H. Kastor

“We, whose names are undersigned, have unsecured claims against Charles F. W. Nichols Company, a corporation. Considering what is said in the foregoing letter by Mr. Kastor, and also considering the fact that we now have no claims against Charles F. W. -Nichols personally, and believing the suggestions made by Mr. Kastor are for our best interest and for the best interests of all, we agree to accept and do accept the proposition as outlined by Mr. Kastor; in token of which we have signed our names hereto, giving the amounts of our respective claims opposite our signatures. We accept the notes of Mr. Nichols and shall look to him only for payment thereof.”

Thereafter, and on the 1st of November, 1923, the following agreement was entered into, for the purpose of carrying out the above:

“Trust Agreement.

“ (a) Whereas, Charles F. W. Nichols Company, a corporation organized and existing under the laws of the state of Illinois, has been and is in financial difficulties, and

“(b) Whereas, H. W. Kastor & Sons Advertising Company, a Missouri corporation licensed to do business in Illinois, E. H. Kastor of Chicago, Illinois, Charles F. W. Nichols Company, a corporation, of Chicago, Illinois, and Charles F. W. Nichols of Chicago, Illinois, did, on the first day of September, 1923, enter into a certain agreement in accordance with a certain proposition submitted to the creditors of the Nichols Company by E. H. Kastor, the terms of which agreement have been accepted by a very substantial part of the creditors of the Nichols Company, and

“(c) Whereas, it was stipulated in, the said agreement of September 1, 1923, that all of the unsecured claims against the said Nichols Company should be assumed and taken over by the said Charles F. W. Nichols, personally, and that the said Nichols Company should be released of all unsecured debts and claims of creditors existing prior to September 1,1923, all such unsecured creditors to accept the personal notes of the said Charles F. W. Nichols, in accordance with and under the terms of the said agreement of September 1, 1923, and

“(d) Whereas, it was provided in said agreement of September 1, 1923, that 5% of the gross amount of all the billing done by the Charles F. W. Nichols Company from and after the first day of September, 1923, shall be set aside and that twenty-five thousand dollars ($25,000) per year shall be paid in monthly installments to the said Charles F. W. Nichols for his services, and the remainder of such 5% should be turned over to a trust fund for the purpose of liquidating and paying off the said notes given by the said Charles F. W. Nichols in the assumption of the unsecured debts of the said Charles F. W. Nichols Company, as such debts existed prior to the first day of September, 1923, and

“ (e) Whereas, it was agreed by and between all of the parties to the said agreement of September 1,1923, and the unsecured creditors of the said Charles F. W. Nichols Company, existing prior to September 1,1923, that the life of the said Charles F. W. Nichols should be insured in the sum of one hundred thousand dollars ($100,000) for the benefit of the said trust fund, the premiums upon such insurance to be paid by the Nichols Company and not out of the said trust fund, and

“(f) Whereas, it has been agreed by the said Kastor Company, the said Nichols Company, the said Kastor, the said Nichols and a very large number of the said creditors, that Walter A. Strong, D. M. Dein-inger and James Rosenthal, all of Chicago, Illinois, may act as trustees of the said trust fund for the benefit of all of the creditors of the said Nichols Company, and

“(g) Whereas, the said Walter A. Strong, D. M. Deininger and James Rosenthal have signified and do hereby signify their willingness to accept the said trust and act as such trustees in behalf of all of the said creditors:

“ (h) Now, Therefore, it is agreed as follows:

“ (I) After the deduction of the payment of the salary of twenty-five thousand dollars ($25,000) per annum to the said Nichols, which salary is to be paid in equal monthly installments, the Nichols Company shall turn over to the trustees the balance of the said five (5%) per cent, computed upon the advertising billings, as provided for in said agreement of September 1, 1923. The said trust fund, as the same is received, shall be deposited by the trustees in such bank or banks as the trustees shall from time to time determine.

“(2) The said trust fund shall be distributed pro rata to the creditors of the Nichols Company, according to their respective claims, semi-annually, after deducting all necessary expense in connection with the administration of the trust, or such distribution shall be oftener if the trustees shall so elect.

“(3) A list of all the creditors who are to partic-ip ate in such trust fund, showing their names and addresses and the respective amounts due to each of them, shall be prepared and certified as correct by the said Nichols Company and the said Nichols, and shall be delivered to the trustees as soon as possible after the execution of this trust agreement, and such list must correspond with the evidence of indebtedness given by the said Nichols in pursuance of the agreement hereinbefore referred to, and such list shall control in the distribution of said trust fund unless the trustees shall find said list to be incorrect, in which event the trustees may correct the same.

“(4) Said trustees shall have the right and power to use so much of the said trust fund for such expenses as they may determine necessary in the administration of said trust, and they shall be the sole judges of the necessity of incurring such expenses and the amount thereof.

“ (5) The said trustees shall have the right and power to pay the claim of any creditor or creditors which is less than two hundred dollars ($200) out of the said trust fund in full if they think it advisable and best for the interests of all parties concerned, and they shall also have the right and power to compromise or settle any claim for less than the amount thereof if in their opinion they consider it for the benefit of and to the interest of all the parties concerned, and such payments, compromises or settlements said trustees may make at their discretion at such times as they think advisable, and they shall be the sole judges as to whether such payments, compromises or settlements are for the benefit or advantage of all concerned.

“(6) All payments out of said trust fund shall be made by check upon the depository or depositories of said fund in such manner and upon such signatures as the said trustees may from time to time determine.

“ (7) The trustees shall not be required to verify the correctness of the accounting by the said Nichols Company as to the amount or amounts turned into the trust fund by the said Nichols Company, but shall have the right to verify the same from the books and records of the said Nichols Company, and for such purpose shall have the right to employ such public accountant or accountants, or expert accountant or accountants as the said trustees may select at the expense of the said trust fund, and shall have the right to accept the report of such accountant or accountants which may be furnished to said trustees by the said Nichols Company relating to such accounting, and the said Nichols Company agrees to furnish to said trustees semi-annually, or oftener if requested, an accountant’s report as to the amount due or to become due the said trust fund, and the said trustees shall be held accountable only for the money turned over to the said trust fund by the said Nichols Company, or from any other source.

“(8) The trustees, shall not be liable for errors of judgment in acquiring, managing, holding or transferring any of the property of this trust, nor for any act or omission to act performed or omitted by them in the execution of this trust in good faith, nor shall they nor any or either of them be liable for the acts or omissions of each other, or of any agent or servant appointed by or acting for them, and they shall not be obligated to give any bond to secure the due performance of this trust by them, and said trustees shall not be liable individually or collectively in any event, except for their own willful and intentional breaches of the said trust.

“(9) In the event of the resignation of any of said trustees, or the inability of any trustee to act, or in the event of the death of any of the trustees, the survivor, or the surviving trustees shall have the right to fill such vacancy.

“(10) In case of the" death of the said Charles F. W. Nichols the said trustees shall collect the amount due them as such trustees under any insurance policy or policies then in force for such purpose on the life of the said Nichols, and after deducting the expense of collecting such insurance money and procuring the same for the trust fund, such amount as may be so obtained and brought into the said trust fund shall be distributed in the same manner as herein provided for the distribution of the said trust fund, and the said Nichols Company does hereby agree to turn over to the said trustees, during the life of said Nichols, such insurance policies as may be taken out in favor of the said trustees as beneficiaries, and will from time to time turn over to the said trustees the premium receipts showing the payments of premiums upon such policies, but the said trustees shall not be liable or responsible for the failure of the payment of premiums upon such policies, nor for the cancellation of any such policies, but may, in case of neglect or failure to pay the premiums on any such policies, pay the same out of the said trust fund, and recover the amount so paid from such party or parties that have undertaken the obligation to pay the same, and the said trustees may, if in their discretion they deem it advisable and for the ■best interests of the creditors, obtain and accept the cash surrender value of the said policies for the benefit of the said trust fund.

“ (11) In the event of the death of the said Charles F. W. Nichols before the said notes given by the said Nichols, in the assumption of the unsecured debts of the Nichols Company, have been fully paid, the five per cent (5%) of the gross amount of the Nichols Company’s billings over and above twenty-five thousand dollars ($25,000) per year shall continue to be turned over to the said trust fund until all of said notes of the said Nichols shall have been paid.

“(12) The said trustees shall act until the said creditors of said Nichols Company shall be paid in full, unless by reason of some unforeseen contingency no money can be further obtained or collected under this agreement, in which event the balance of the trust fund on hand, after the deduction of all necessary expenses, shall be distributed among those entitled thereto, and upon such distribution of such balance of the trust fund this trust shall be terminated and the trustees discharged.

“(13) The trustees shall have the power to determine all questions and doubts arising in relation to any of the provisions hereto, and after such determination, whether made on a question actually raised or implied in the actions and proceedings of the trustees, shall be conclusive and shall bind all persons interested herein.

“ (14) The act or acts of the majority of the trustees shall be binding upon all the trustees in the performance and carrying- out of this trust agreement.

“(15) This agreement shall be binding upon all of the parties hereto and their respective heirs, legal representatives, successors and assigns.

“In Witness Whereof, the said parties hereto have executed this agreement this first day of November, 1923.

“H. W. Kastor & Sons Advertising Company, “By E. H. Kastor, Secretary & Treas.
“Attest:
“E. H. Kastor,
Secretary.
‘1 Charles F. W. Nichols Company,
By Charles F. W. Nichols, President.
“Attest: E. H. Kastor
Charles F. W. Nichols
Wallace Meyer, Walter A. Strong
Secretary. D. M. Deininger
James Rosenthal.”

The action here is predicated upon the first of the documents herein referred to, designated as the note of Charles F. W. Nichols. The action is by the Central-Illinois Company, the indorsee of the note. Judgment was given for plaintiff and defendant appeals. There is no question as to the amount of the judgment.

As stated by the defendant in his brief, his defense is that, under the terms of the various agreements referred to, “the creditors of the Nichols Company were to release their claims against the company and accept the so-called notes of Mr. Nichols, payable subject to the terms of the creditors’ agreement, in lieu thereof; all of which was done accordingly. The trust agreement was executed on November 1, 1923, for the purpose of carrying out the terms of the creditors’ agreement. The business of the company went along for a while and payments were made on account of the so-called notes, given by Mr. Nichols, by the trustees named in the trust agreement. Although Mr. E. H. Kastor loaned money to the Nichols Company in excess of $100,000, the company did not continue to prosper, and, under date of April 29,1932, in an equity suit brought by the North Avenue State Bank, one of the creditors against the trustees named in the trust agreement, and others, the trust agreement was terminated and the trustees and the other defendants, including Nichols, were discharged, it having been found to be impossible for any more money to be realized by the trustees out of the Nichols Company in accordance with the terms of the creditors’ agreement and the trust agreement. Mr. Kastor lost $7,000 of the money he advanced to the Nichols Company. There being no possibility of the collection of any more money through the creditors’ agreement and the trust agreement, it is the theory of the plaintiff that the plaintiff has the right to recover the balance of the so-called note from the defendant, personally. It is the theory of Charles F. W. Nichols, the defendant, that the so-called notes, executed by him to creditors of the Nichols Company, including the instant note, were and are a part of the creditors’ agreement and the trust agreement, ancl were and are payable in accordance with the terms of the creditors’ agreement and of the trust agreement, executed in pursuance of the creditors’ agreement, and that such ‘notes’ do not represent any personal obligation on his part independent of the said agreements, the said notes containing no provisions as to time or place for payment by Nichols personally, but providing only for payment ‘subject to the terms of a certain creditors’ agreement of September 1st, 1923,’ and not otherwise, said creditors’ agreement having provided for the execution of the trust agreement.” •

The manner in which the “trust agreement was terminated,” as stated by defendant in his brief, was by a decree of the circuit court entered on the 29th day of April, 1932, in an action brought by the North Avenue State Bank against Rosenthal, Deininger, Strong, Nichols, Kastor, Charles F. W. Nichols Company and the E. H. Kastor & Sons Advertising Company. In that case, it appears from the recital in the decree that the North Avenue State Bank, the complainant therein, and one of the creditors of the Charles F. W. Nichols Company, had accepted a note exactly similar to the one sued on here, subject to the terms and conditions of the documents hereinbefore recited. In its decree, the court finds, among other things, that “pursuant to and in accordance with the terms of said proposal, there was executed and delivered by Charles F. W. Nichols to the complainant on September 1st, 1923, a certain instrument in writing, commonly called a promissory note, evidencing the amount of the indebtedness to the complainant.” Also, the following:

‘ ‘ The court further finds that none of the creditors of the said Charles F. W. Nichols Company has ever received any payment or payments from said Charles F. W. Nichols other than such payments as have been made through the trustees under said trust agreement.” Prior to the termination of the trust agreement as reported in North Avenue State Bank v. Nichols, 252 Ill. App. 366, a suit at law was brought in the circuit court of Cook county by the North Avenue State Bank against defendant on the note owned by the bank, and in that case, the defendant filed a plea in which is recited the agreements between the parties and the trust agreement hereinbefore referred to, and therein says:

“That it was the purpose and intent of the said Creditors’ Agreement and the said Trust Agreement so entered into and accepted by and agreed to by the said unsecured creditors of the said Charles F. W. Nichols Company, a corporation, that the unsecured creditors, of which the plaintiff was one, by accepting and agreeing to said Creditors’ Agreement and said Trust Agreement, will look solely to the said Trust Fund for the payment of the said instruments so delivered to and accepted by the unsecured creditors, and by said plaintiff herein who was one of them, and that said notes executed by the said Charles F. W. Nichols to the said unsecured creditors of which the plaintiff herein was one, were executed simply and solely for the purpose of evidencing the respective indebtedness due to the respective unsecured creditors of the said Charles F. W. Nichols Company, all of which was known to and agreed to by said plaintiff and the other unsecured creditors, and accordingly, the said plaintiff must look to the Trust Fund created under the Trust Agreement which was drawn pursuant to the Creditors’ Agreement and in accordance with same, for its payment of said instrument sued upon, and that the said Charles F. W. Nichols, the defendant herein, is not personally liable to the said North Avenue State Bank, a corporation, plaintiff herein, upon the said instrument sued upon herein.” ■ To the plea filed, the plaintiff filed a demurrer, which, of course, admitted the averments in thé plea. The demurrer was overruled, and in its opinion affirming the circuit court, this court said:

“It therefore follows that during the time the trust agreement remained in force plaintiff must look to the funds realized under the trust agreement for payment, and in the meantime cannot maintain an action thereon. Plaintiff having acquiesced in the trust agreement and having received payments thereunder covering a period of over five years, is not permitted to repudiate an agreement which he has for so long a time accepted and ratified. National Time Recorder Co. v. Feypel, 93 Ill. App. 170; Globe Wernicke Co. v. Siegel Meyers School of Music, 209 Ill. App. 529.”

In the agreement of September 1, 1923, we find the following:

“(1) That all of those having unsecured claims against the corporation accept Mr. Charles F. W. Nichols’ personal note or notes, having the obligation lie with Mr. Charles F. W. Nichols only, and releasing the corporation of its present indebtedness.” Also, in the trust agreement, we find the following:

“That all of the unsecured claims against the said Nichols Company shall be assumed and taken over by the said Charles F. W. Nichols personally, and that said Nichols’ Company should be released of all unsecured debts and claims of creditors existing prior to September 1, 1923, all such unsecured creditors to accept the personal notes of Charles F. W. Nichols.” Further, it provides for the “paying off the said notes given by the said Charles F. W. Nichols in the assumption of the unsecured debts of the Charles F. W. Nichols Company.” In the trust agreement, we also find the following:

“(11) In the event of the death of the said Charles F. W. Nichols before the said notes given by the said Nichols, in the, assumption of the unsecured debts of the Nichols Company, have been fully paid, the five per cent (5%) of the gross amount of the Nichols Company’s billings over and above twenty-five thousand dollars ($25,000) per year shall continue to be turned over to the said trust fund until all of said notes of the said Nichols shall have been paid. ’ ’

The decree dissolving this trust agreement was approved and accepted by the defendant here, and he is bound by it the same as any of the other parties to that suit, and he cannot consistently urge the defense that his promise to pay is made subject to the terms of an agreement to the annulment of which he became and was a party. It is our opinion that the termination of the trust agreement removed all conditions concerning his promise to pay, and that he is liable on the instrument sued upon. The judgment is, therefore, affirmed.

Affirmed.

Hebel, J., and Denis E. Sullivan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Hebel

license: Public Domain

text:
    In re Estate of Carl August Carlson, Deceased. Alice H. Moreen, Appellant, v. Estate of Carl August Carlson, Deceased, Appellee.
    Gen. No. 38,388.

      Opinion filed June 22, 1936.
    Rehearing denied July 6, 1936.
    Jenkins & Kirkpatrick, of Chicago, for appellant; Donald Kirkpatrick, Paul E. Mathias and Lee J. Quasey, all of Chicago, of counsel.
    Levinson, Becker, Peebles & Swiren, of Chicago, for appellee; Anderson & Anderson, of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

. Alice H. Moreen, as (appellant) claimant, filed a claim in the probate court of Cook county in the estate of Carl August Carlson, deceased, seeking the allowance of the sum of $30,000 for damages resulting from the breach of an agreement between Carl August Carlson, now deceased, and the claimant, whereby, in consideration of services rendered and to he rendered to Carlson by the claimant, he agreed to bequeath and leave his entire estate to claimant upon his death, which agreement was alleged to have been fully performed by the claimant up to the time of. Carlson’s death. After a hearing in the probate court an order was entered allowing the sum of $30,000 as a claim of the sixth class. The administrator of the estate of Carl August Carlson, deceased, prayed for and was allowed an appeal to the circuit court of Cook county, where this matter again came up for hearing" and was submitted to the court without a jury. The court ordered that the claim heretofore allowed by the probale court for $30,000 be set aside and the claim allowed in the sum of $728 as a claim of the sixth class, payable in due course of administration. From the order of the .circuit court the claimant perfected her appeal to this court.

The claimant’s case is based upon an alleged oral contract whereby Carl August Carlson, now deceased, agreed in his lifetime to leave his entire estate to claimant upon his death in consideration of claimant’s promise to care for, nurse, serve and attend Carlson during the remainder of his life.

Carlson and his wife came to the United States from Sweden and settled in Minnesota where they lived on a farm. As the result of their marriage a boy was born to them. During their residence in Minnesota they acquired a farm, which was subsequently sold, and Carlson and his wife moved to Chicago. Shortly after moving to Chicago their son, who was then 21 years of age, died. Claimant is a daughter of a sister of Carlson’s wife. She visited Carlson and his wife regularly and was present at the time of the death of his wife in January, 1932. Claimant took charge of the arrangements for the funeral of Carlson’s wife, and at the same time delivered the ashes of their recently deceased son to the undertaking establishment and requested that they be placed in the casket Avith Mrs. Carlson’s body. At this time Carlson was ill and the funeral was delayed several days because of his illness and in order that he might recover sufficiently to attend the funeral. Carlson was suffering from a gangrenous infection of his foot, which infection ultimately resulted in his death. Carlson was without relatives in this country, and after his wife died he lived alone. Claimant alleges that Carlson entered into a contract "with her whereby he agreed to leave all of his property to her in consideration of her promise to care for and attend him during the remainder of his life.

From the evidence introduced in this case it appears that Carlson Avas not a talkative man; he did not confide even in the doctor who treated him during the last year of his life, but he did discuss claimant and his regard for her with the landlord, Avho often visited him, and also with the janitor and his wife, who lived in basement rooms next to those occupied by Carlson.

Flora Hansen, the landlady, testified that Carlson and his wife rented two rooms in the basement in the front of the building* in October, 1931; that Carlson’s wife died three months later in January, 1932; that the Avitness suay Carlson and his Avife frequently before the death of the wife, and after her death she saw Carlson almost every day; that Carlson often mentioned claimant to her and talked about how faithful she had been to him, and would state that she would be well paid for what she had done for him. -It appears from the evidence of this witness that she was present on the night before Carlson died; that he then told her he had not fixed it so Alice Avould get his property, but that he would do so. She further testified that the claimant cooked, washed, scrubbed, ironed and did the general housework, and dressed Carlson’s sore foot, and that she saw the claimant in Carlson’s home every day after his wife’s death.

Shelby Hunter, the janitor of the building where Carlson lived during the last year of his life, and who occupied rooms in the basement, testified that he saw Carlson practically every day during 1932, and that he visited him in his rooms at least once a week; that Carlson had talked to the witness about claimant and said she had been good to him and he was going to see that she was taken care of if anything happened to him. Hunter’s wife also testified that she had seen the claimant there regularly, and that she took care of Carlson’s foot, straightened up the house for him and prepared food for him to eat.

Osmond Inscho, a witness, testified he was engaged to marry claimant, and, with her, frequently called on Carlson and his wife; that after Carlson’s wife died the witness continued to visit Carlson; that on at least three different occasions Carlson told the witness of his understanding and contract with claimant; that the first of these conversations occurred in 1932 — the first time the witness visited Carlson after his wife’s death; that in this conversation Carlson spoke about the death of his wife and his own condition, and stated that he had talked with claimant and had asked her to care for him the remainder of his time on earth, and promised to leave her everything he possessed; that again, four or five weeks before Carlson’s death, he spoke to this witness of his promise to claimant and said he was going to put his possessions in a trust fund for her to keep her people from getting his property; that at this time the claimant was present and heard this conversation.

The claimant introduced evidence of several witnesses to show performance.

When Carlson died he left an estate of about $34,000. On January 20, 1933, the public administrator was appointed administrator of the estate. Carlson left, according to the Table of Heirship, three sisters and one brother, and the children of another brother, who had predeceased him. In July, 1933, about six months after Carlson’s death, the claimant in this ease filed a petition in the probate court asking to have the appointment of the public administrator set aside and to have herself appointed administratrix of the estate, on the ground that she had “rendered valuable services to the said Carl_ August Carlson, deceased, and his wife who predeceased him, and that such services were rendered over a period of about three years preceding January 20, 1933, all at the instance and request of the said Carl August Carlson, deceased”; that in the performance of said services she had ‘1 expended various sums of money and devoted much time toward the care and comfort of the said Carl August Carlson and his wife, at great inconvenience and sacrifice on her part”; that the deceased was greatly indebted to the claimant for services rendered and for which she is entitled to a large sum of money. She claimed therefore- to be a creditor of the estate, and that, by the appointment of the public administrator, she was deprived of her right of preference. This was denied by the court.

Claimant must establish by the evidence that an agreement was entered into whereby she was to perform services and to receive as compensation for such services all property belonging to Carlson at the time of his death. Proof of the contract is largely dependent upon the evidence of Osmond Inscho.

Claimant does not contend that the conversations and statements made by Carl August Carlson to the landlady, the janitor and the janitor’s wife constituted clear proof of the existence of the contract alleged by the claimant, but that they do show the existing relationship between the parties and their attitude, feeling and disposition toward each other. Then, too, the claimant suggests that the conversations and statements, together with the earlier statements made by the decedent in the discussions during the lifetime of the decedent’s wife, do show the probability and likelihood of the making of the contract as alleged by the claimant.

In discussing the questions before the court we must have in mind that in order to entitle claimant to recover it is necessary for her to establish by proper evidence that there existed between her and the deceased in his lifetime a contract by which the deceased in consideration of some act or thing to be performed by the claimant agreed to make the particular bequest claimed, and that the claimant has performed.

In the discussion of the question as to whether or not a contract was entered into between the deceased in his lifetime and the claimant, we are controlled by the rule applicable to evidence in cases of this character. This court in the case of Delee v. Leahy, 278 Ill. App. 178, said:

“It has long been well settled that courts lend a very unwilling ear to statements of witnesses as to what dead people have said. We had occasion to consider this question in Jamison v. Boxderfer, 268 Ill. App. 614, not reported, where defendant was claiming a $7,500 mortgage as a gift from the deceased, and in passing on the question of the testimony of a witness as to what the deceased had said, we said: ‘It is also the law that courts lend a very unwilling ear to statements of what dead men have said. Lea v. Polk County Copper Co., 62 U. S. 493. In that case the court said (p. 504): “In 1856, when these depositions were taken, John Davis was dead, and courts of justice lend a very unwilling ear to statements of what dead men have said.” And in 22 C. J. p. 291, in discussing the testimony of witnesses as to statements made by a deceased person, it is said that “it is impossible, in most cases, to convict the witness of perjury if his testimony is wilfully false, testimony as to the oral statements of deceased persons, which is therefore regarded as the weakest kind of evidence and .subjected to the closest scrutiny.” And our own Supreme Court in the case of Laurence v. Laurence, 164 Ill. 367, in discussing this question said (p. 377): “Evidence of admissions made by a person since dead should be carefully scrutinized, and the circumstances under which they were alleged to have been made carefully considered with all the evidence in the case. Such evidence is liable to abuse.” ’ ”

The testimony that has any particular bearing upon this claim 4s that of the witness Osmond Inscho, from which it appears that Carlson, the deceased, told the witness in their first conversation that he had talked with claimant • and asked her to care for him the remainder of his time on earth, and promised to leave her everything he possessed, and again, shortly thereafter he talked to this same witness in the presence of the claimant, and from the evidence it appears that Carlson had in mind putting his possessions in a trust fund for her, to keep her people from getting his property.

The claimant offered evidence of several witnesses to the effect that she had taken care of Carlson in performance of what is alleged to be a contract with the deceased, but in order to have a perfect picture of the situation, this court must take into consideration the claimant filed a petition in the probate court of Cook county, the purpose of which was to remove the public administrator appointed by the probate court, on the ground that she was a creditor. The petition was offered in evidence., In this petition the claimant stated that she had ‘ ‘ rendered valuable services to the said Carl August Carlson, deceased, and his wife who predeceased him” at his request, and that in the performance of the services she had “expended various sums of money and devoted much time toward the care and comfort of the said Carl August Carlson and his wife, at great inconvenience and sacrifice on her part, and that the deceased was greatly indebted to the claimant for the services rendered.”

This is in contradiction of the position claimant now takes in the proceeding here on appeal. It is not altogether clear as to the terms of this alleged contract upon which she claims she is entitled to all the property of the deceased — amounting to approximately $34,000 — although there is some evidence, as outlined in this opinion, that she was to receive all he had; and, then again, that he was to provide a trust fund for her.

In a case of this character, as the courts have indicated, the evidence is subject to close scrutiny, and for the very good reason that Carlson, now dead, is not present and the terms of this alleged contract are entirely dependent upon the evidence of persons who may be interested in the outcome of the litigation— and this especially with reference to the witness Osmond Inscho, who stated that he was engaged to marry claimant, and who would naturally be interested in the outcome of the proceeding. If claimant had relied upon the position taken as a creditor when she filed the petition to remove the public administrator, it may be that the court would have allowed her to recover for the services she rendered to the deceased. There seems to be no question that she rendered services for which she should have been paid, but in this case upon appeal she takes the position that she had a contract with the deceased which entitled her to all of his property. However, we are not satisfied that the evidence justifies her claim, and we are constrained to agree with what was stated in the case of Delee v. Leahy, supra, — quoting from Laurence v. Laurence, 164 Ill. 367: “Evidence of admissions made by a person since dead should be carefully scrutinized, and the circumstances under which they were alleged to have been made carefully considered with all the evidence in the case. Such evidence is liable to abuse.”

Since the evidence is not clear nor sufficient to establish the contract in question, this court would not be justified either by the facts or the law governing such litigation in entering an order allowing claimant the sum of $30,000 as damages resulting from the alleged breach of a contract with the deceased. On the other hand, the allowance by the court of $728 for alleged services rendered by the claimant in caring for the deceased in his lifetime is not supported by any evidence nor prayed for in the claim filed by claimant; therefore this judgment order is reversed, and the cause is remanded with directions to the trial court that the claim of the claimant be disallowed.

Judgment reversed cmd cause remanded with directions.

Hall, P. J., and Denis E. Sullivan, J., concur.


text:
    In re Estate of James McCormick, Deceased. Joseph A. McCormick, Administrator, Appellee, v. Thomas J. Gaynor, Appellant.
    Gen. No. 38,403.

      Opinion filed June 22, 1936.
    Rehearing denied and opinion modified July 6, 1936.
    Foreman, Bluford, Krinsley & Schultz, of Chicago, for appellant; Lazarus Krinsley, Raymond Harkrider and Giles H. Penstone, all of Chicago, of counsel.
    Thomas A. Walpole and Edgar B. Elder, both of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the respondent from an order entered in the circuit court of Cook county in a citation proceeding wherein it appears that the petitioner as administrator of the estate of James McCormick, deceased, filed a petition in the probate court of Cook con nty praying that a citation he issued directed to the respondent, commanding him to appear and answer interrogatories with reference to two notes for $20,800 and $20,690 respectively, in which notes petitioner claimed on behalf of the estate a one-half interest, and further praying that the respondent he directed to deliver to petitioner said notes or any part thereof found to belong- to said estate.

Respondent admitted that he held said note for $20,800, hut claimed to he the owner thereof. On February 27, 1934, the probate court entered an order in said proceeding finding the note was the property of the estate and directing the respondent to deliver it to petitioner. From this order there was an appeal to the circuit court of Cook county. The proceeding was again heard and tried de novo in the circuit court of Cook county, and the court entered an order finding that said note for $20,800 was the property of the estate of James McCormick, that petitioner was entitled to the possession thereof, and ordered respondent to deliver said note to petitioner.

The facts in this case are that the respondent as surviving partner filed an answer to a claim in the probate court of Cook county by the administrator of the estate of James McCormick, deceased, and there is evidence that the decedent was in his lifetime a partner of the respondent. This partnership existing between Thomas J. Gaynor and James McCormick was on July 1, 1927, merged into a successor corporation known as Gaynor and McCormick, Inc. Assets, a part of this copartnership, were retained by the partners and were not transferred to the corporation. Part of such assets retained consisted of two promissory notes signed by Benjamin E. Cohen, dated March 25, 1926, one for $20,800 and the other for $20,690. These notes were secured by trust deeds conveying certain described real estate to a trustee. The promissory notes were placed by the respondent Thomas J. Gaynor in a deposit box in the Madison and Kedzie State Bank. On July 11, 1928, sometime after the organization of the corporation, James McCormick, who was then living, was given joint access with Gaynor, the respondent, to this deposit box. After Mr. McCormick’s death the administrator of his estate was given access to the same safety deposit box for examination thereof.

The evidence is conflicting as to the alleged fact that in August, 1929, after the death of Mr. McCormick, the administrator of the estate, Thomas J. Gaynor, respondent, together with Thomas Walpole, attorney for the estate, and Edward P. Kearns, went to the vault and checked through the various papers in the deposit box, and Mr. Gaynor indicated the ownership of each one. The two above described promissory notes were found in the box, and Mr. Gaynor said: “We owned them jointly; each one had a half interest.” There is also evidence in the record that statements were made by Mr. Gaynor to the same effect, but this is in dispute.

The facts further disclose that in June, 1933, the respondent transferred the promissory note for $20,690 to the maker, Benjamin E. Cohen, upon the payment of $3,500. However, the other note signed by Cohen is still in the possession of the respondent.

From the facts it is apparent that James McCormick in his lifetime was interested in the Cohen notes to the extent of a one-half interest with the respondent; that upon the death of Mr. McCormick, the administrator succeeded to his interest in the notes. It is to be noted that the respondent now claims ownership of the note now in his possession.

It is important to examine the various provisions of the Uniform Partnership Act, ch. 106a, Ill. State Bar Stats. 1935, in force since July 1, 1917, that are applicable to a controversy between a surviving partner and the administrator of the estate of a deceased partner.

Section 30 of the act provides that on dissolution the partnership is not terminated until the winding up of the partnership affairs is completed, and it is not dissolved unless by the express will of the partners, or by the death of one of the partners.

Section 25 provides that a partner is co-owner with his partners of specific partnership property holding as a tenant in partnership.

Section 21 provides that:

“Every partner must account to the partnership for any benefit, and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct, or liquidation of the partnership or from any use by him of its property.”

Upon the right to possession of a surviving partner, section 25, subdivision (d) provides:

“On the death of a partner his right in specific partnership property vests in the surviving partner or partners, except where the deceased was the last surviving partner, when his right in such property vests in his legal representative. Such surviving partner or partners, or the legal representative of the last surviving partner, has no right to possess the partnership property for any but a partnership purpose.”

It is clear that under the Uniform Partnership Act the respondent in this case was a co-tenant with James McCormick, his partner in partnership property. Upon the death of Mr. McCormick, the interest of the deceased passed to the administrator of his estate, as successor, and the respondent must account for any profits he may have derived or benefits received by virtue of the disposition of the partnership assets. Applying section 25, subdivision (d) of the act to the instant case, it is clear that upon the death of James McCormick title to the partnership property vested in the respondent, and as the surviving partner the respondent is possessed of the partnership property for partnership purposes.

The fact that the respondent claims to be the owner of the note in question is not satisfactorily explained. While he is entitled to possession of the assets as a surviving partner, still he cannot by any act of his convert this property so as to become the owner.

It is to be noted from the claim filed by the administrator that he as the representative of the estate claims only a one-half interest in the notes described in the claim. This is not an accounting proceeding wherein the court is to determine the interests of the partners at the time of the death of the partner James McCormick, but is for the purpose of divesting the respondent of his interest in the partnership note.

The conclusion reached by this court is based largely on a question of fact, and there is but little dispute regarding the evidence. From the state of the record we are of the opinion that the court erred in entering an order finding that the note for $20,800 is the property of the estate of James McCormick, deceased. The respondent, under the statute as the surviving partner, is entitled to possession of this asset, and the court was, therefore, not empowered to direct that the note be delivered to the petitioner.

For the reasons stated in this opinion, the judgment is reversed.

Judgment reversed.

Hall, P. J., and Denis E. Sullivan, J., concur.

Opinion Denying Appellee’s Motion to Dismiss Appeal.

The motion of the administrator of the estate of James McCormick, deceased, the petitioner, to dismiss the appeal of the respondent was urged upon the ground that the final judgment was entered on March 13, 1935, and the appeal by the respondent was not taken within the time fixed by the statute.

It would seem that on March 13, 1935, at the conclusion of the hearing, the cause was continued to March 16, 1935, in order that a proper judgment order might be presented to the court to be entered at that time. Subsequently, on March 16,1935, the matter was again continued, and on March 23rd, an order was presented to the court and entered, and from the order entered on this date respondent appealed.

From the record it would seem that there were two judgments, one of March 13, 1935, and the other of March 23, 1935, and from the whole record as submitted to this court it is apparent that further hearing was had, at which evidence was presented by both sides, and the respondent presented propositions of law, some of which the court marked “Held” and others of which the court marked “Refused” and the draft order was presented by the attorney for the administrator of the estate of James McCormick, deceased.

As to the question of where there are two judgments appearing of record, it is contended by the respondent that the subsequent judgment signed by the court on March 23, 1935, superseded the prior judgment of March 13, 1935, and became the final and appealable judgment of the court, and he submits in support of this proposition the case of Cummins v. Mullins, 183 Ky. 666; also Hulbert v. All Night and Day Bank, 29 Cal. App. 765,157 Pac. 546.

Our attention has also been called to the case of Jemo v. Tourist Hotel Co., 55 Wash. 595, 104 Pac. 820, in which the facts are somewhat similar to those in the case now being considered. There the court held that the respondent in that case caused a later judgment to be entered, and by so doing estopped himself from asserting that it was not the final appealable one. This applies to the acts of the attorney for the estate, who prepared and presented the order for the entry of the judgment of March 23, 1935. Therefore, by such conduct petitioner is estopped to contend that it is not a final judgment.

Other points have been called to our attention upon this question, but we are satisfied that the appeal taken by this respondent was within the time allowed by the statute; therefore the motion to dismiss the'appeal is denied.

Motion to dismiss denied.

Hall, P. J., and Denis E. Sullivan, J., concur.


text:
    Chicago Title and Trust Company, Appellee, v. William J. Cleary, Appellant.
    Gen. No. 38,440.
    Opinion filed June 22, 1936.
    Both rehearings denied and opinion modified July 6, 1936.
    Stebbins, McKinley & Price and John A. Brown, all of Chicago, for appellant; Lewis A. Stebbins, of counsel.
    Kirkland, Fleming, Green & Martin, George Gillette, Elmer M. Leesman, Charles F. Grimes and Carl F. Faust, all of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This action was instituted by the Chicago Title and Trust Company against William J. Cleary" in the municipal court of Chicago to recover $481.80, alleged to be due on an open account. On motion of the Chicago Title and Trust Company its cause of action was non-suited on April 16, 1934. The proceeding was heard before the court and a jury on the second amended counterclaim of Cleary filed November 15,1933, in that litigation, in which he makes claim upon a contract in the nature of an escrow executed by the company, and at the conclusion of the hearing the jury returned a verdict in favor of Cleary and against the company for $150,844.50 on June 29, 1934. On August 27, 1934, the court entered an order as follows:

“This cause coming on for hearing upon motion of plaintiff and counter-defendant, Chicago Title & Trust Company, a corporation, heretofore entered herein June 29', 1934, for a directed verdict, and the court being fully advised in the premises sustains said motion.

“This cause coming on for further proceedings herein, it is considered by the Court that final judgment be entered for the plaintiff and counter-defendant Chicago Title and Trust Company, a corporation, notwithstanding the verdict, and against the defendant and counter-plaintiff, William Cleary, without costs, it appearing to the Court that no costs have accrued to either party to this cause.”

The pleadings upon which this proceeding was had consist of the second amended counterclaim of Cleary which sets forth a certain escrow agreement between the company and certain other persons therein named, including Cleary, under which Cleary was, upon certain conditions set forth in said escrow agreement, entitled to receive from the company $100,000 of the bonds of the Chicago Harbor Lumber Company and $10,000 in cash.

The company filed a reply in which it denies that it is indebted, individually and as trustee, or in either capacity, to Cleary in the sum of $150,000, or in any amount, as damages arising and growing out of a certain transaction for which Cleary has filed his suit in this cause against the company.

The company further denies that Cleary entered into a certain escrow agreement with the Chicago Title & Trust Company, a corporation, and Fred T. Becks, president of Chicago Harbor Lumber Company, G-. Frank Croissant and Robert Owens in the words and figures set forth in paragraph 2 of the counterclaim; denies that said escrow agreement was ever delivered to or accepted by the company and designated by the company as its escrow No. 70521; denies that in pursuance of said escrow agreement there was deposited with the company the several deeds and other instruments in writing therein described, together with certain amounts in cash; and denies that it thereupon became and was the duty of the company to receive and distribute said deposits in accordance with the terms of said escrow agreement.

In the discussion of the various questions called to our attention, when referring to the parties we have adopted the method used in the several briefs filed in this ease, and refer to William J. Cleary, sometimes designated as defendant and sometimes designated as counter-plaintiff, as Cleary, and the Chicago Title and Trust Company, sometimes designated as plaintiff and sometimes designated as counter-defendant, as the company.

Cleary’s theory of the case is that the escrow agreement dated November 26, 1927, was duly executed by all the parties thereto, and under the terms thereof Cleary became entitled to $10,000 in cash and $100,000 in bonds of the Chicago Harbor Lumber Company, or the value thereof.

The company admits that the theory of defense given by Cleary is substantially correct, but denies that it is a complete statement of its defense. It is the company’s theory, also, that the alleged escrow agreement upon which Cleary’s claim is founded is spurious and that it was manufactured out of a carbon copy of the escrow agreement of November 21, 1927; that the receipt of Cleary produced as evidence of deposits of money and stock under that spurious agreement is a forgery, and that a copy of the spurious agreement produced by one of Cleary’s witnesses, who testified that he obtained that copy from the company, is likewise spurious.

The question of fact involved in this litigation is whether the escrow agreement was duly executed. The company denies that it was, and much of the testimony in the record bears upon this question.

It is well to have in mind the escrow agreement in the instant case, dated November 26, 1927, and setting forth substantially that certain deposits of quitclaim deeds were made to convey the property described therein, also the deposit of quitclaim deed from William Cleary and Mary B. Cleary, his wife, to the Chicago Harbor Lumber Company, purporting to convey the same property. This provision follows:

“The Chicago Harbor Lumber Company will deposit with you (meaning the Chicago Title & Trust Company) the sum of $14,616.67. Chicago Harbor Lumber Company will deposit with the Company Trust Indenture in duplicate, made by themselves to the Chicago Title and Trust Company, Trustee, dated October 15, 1927, securing bonds in' the principal sum of $200,000, and purporting to convey . . .” the premises described in the trust deed.

“William Cleary deposits with the Company four contracts dated August 15, 1927, between the Union Bank of Chicago, Trustee, as sellers, and Isabele M. Cleary, as purchaser purporting to convey . . .” the premises therein described.

Then it is provided in the agreement that the property therein described with- respect to the several sites is subject to certain provisions of the escrow contract. Then follows this provision:

“Chicago Title and Trust Company to deliver One Hundred Thousand Dollars in bonds to William J. Cleary, when certified, also $10,000 cash and stock; deliver mortgage policy to Chicago Title and Trust Company, Trustee.

“Gr. Frank Croissant directs you (meaning the Company) herewith, out of the $14,616.67 directed to be paid to him hereunder, to pay an amount sufficient to clear all prior liens and the" encumbrances on premises first and second herein described, so that the policy herein can issue subject to the objections enumerated as affects Nos. 1 and 2.”

From the facts as they appear in the record, the company denies that the Chicago Harbor Lumber Company deposited with it the sum of $14,616.67, provided in the escrow agreement to be deposited, but proof is offered by Cleary that this sum was deposited, together with $10,000 that was to go to Cleary, making a total of $24,616.67, and there is evidence to the effect that the bonds of the Chicago Harbor Lumber Company were delivered io the company and by it certified and delivered to the Trust Department of the company; tliaf on November 28, 1927, Cleary notified the company not to deliver the bonds to the Chicago Harbor Lumber Company, until he had been paid the amount of money, bonds and stock due him under the contract, but that on November 30, 1927, the company delivered $125,000 bonds of the Chicago Harbor Lumber Company to Kirkeby, Watts & Company.

In passing upon the questions raised in the briefs of the parties to this litigation, we are of the opinion that two points are to be considered. First, whether the verdict returned by the jury for Cleary in this action was against the manifest weight of the evidence; and second, whether from the facts and the law applicable to the questions, the court was justified in entering judgment for the company, notwithstanding the verdict of the jury.

In the discussion of the first point as to whether the evidence established the authenticity of the escrow agreement bearing the alleged date of November 26, 1927, the company contends that the verdict of the jury is manifestly against the weight of the evidence and that Cleary’s claim is a frame-up in which he and three of his witnesses have conspired to defraud the company, and in seeking to establish this fact the company offers evidence that there never was an escrow agreement between the parties bearing the date above set forth and in the form claimed to have been executed ; that it never was in the possession of the company, nor at the time when claimed to have been executed was it examined by any of the officials of the company, to which fact they so testified.

There is a sharp conflict in the evidence regarding the escrow agreement now under consideration. Cleary’s evidence is to the effect that one of his witnesses testified he took up the matter with Mr. Marriott of the company, who, it is claimed, after a discussion stated he would have the whole thing rewritten, and a few days later Cleary had in his possession the original copy of the escrow agreement, which was signed by the parties at Cleary’s request, together with a carbon copy of the original, and that the original of this escrow agreement was delivered to Miss B. B. Kohn, the young lady employed in the Escrow Department, and at the time he delivered the original to this woman it bore the signatures of the parties to it. There is other evidence that the escrow agreement was seen in the possession of the company, and it is upon an issue of fact that the jury was required to consider the evidence and determine the question directed to it by the court. We might go into the facts more fully, but believe they are sufficiently set forth for the purpose of calling attention of counsel to the fact that the issue was one for a jury, and if we reach the conclusion that the judgment must be reversed and the cause remanded for further trial it will not be necessary at this time to pass upon the merits of the controversy.

Another question here in conflict is the purported receipt for the money claimed to have been deposited with Mr. Marriott, who has since died. It is claimed by the company that this receipt for the funds was a forgery; that the money was never received and was never in the possession of the company. Therefore, it was important that the jury be properly instructed. The following instruction is complained of by the company;

“The court instructs the jury that it is incumbent upon Cleary to show by a preponderance of the evidence that the document, Cleary’s Exhibit 4, dated November 26, 1927, was executed by the parties and delivered to the Title and Trust Company; and that it is necessary for Cleary, by a preponderance of the evidence, to show that there was deposited with the Title and Trust Company the sum of $24,667.67 in cash and 667 shares of the capital stock of the Chicago Harbor Lumber Company as part of the property to be delivered under an escrow agreement.

“If you find that Cleary has proven these facts by a preponderance of the evidence, then you will find in favor of Cleary in the sum of $10,000 plus interest at the rate of five per cent per annum from January 1, 1928, to date, and an additional sum of $100,000 (the face value of the bonds in question) with interest at six and one-half per cent from January 1, 1928 to October 15, 1933.

“If you find that it has not been proven by a preponderance of the evidence that the document known as Cleary’s Exhibit 4 was executed and delivered to the Title and Trust Company, and that the aforesaid deposits were not made, you will find the issues in favor of the company.”

Numerous objections have been made to this instruction, two of which have a material bearing upon the form in which it is given. The first is that the jury was not instructed that it was necessary for Cleary to establish not only "that the escrow agreement was executed as contended, but also to establish by the evidence that there was a delivery of the agreement to the Chicago Title and Trust Company and acceptance by it, but the record is silent regarding the fact that the company by its proper officer accepted the agreement. It is to be noted that one of the specific objections made by the company to the instruction in question before the jury retired is that the instruction takes away from the jury the consideration of the question of fact whether all the conditions of the escrow agreement were fulfilled, or complied with and performed. The escrow agreement in question is not signed by the company, so that the company in the acceptance, either express or implied, of Cleary’s performance, as required by the escrow agreement, would be liable. We believe it was necessary for Cleary to establish this fact, and that it was error for the court to fail to instruct the jury that delivery in effect was sufficient; also that the court should not have given the instruction in this form. It would seem that the question of acceptance is an elementary one and hardly needs the support of authorities.

As to the second objection to the instruction, the company complains of the form of the third paragraph, wherein the jury is instructed if it finds failure of proof both as to the validity of the escrow agreement and the money deposited, it may return a verdict for the company.

If from the instruction in the form given it appears there was a failure to show by a preponderance of the evidence that the document known as Cleary’s Exhibit 4, was executed and delivered to the company and that the aforesaid deposits were not made, the jury must necessarily find the issues for the company.

The direction is rather confusing in that it couples the execution and delivery of the escrow agreement with the performance of the provisions provided for in the contract. It may be that the jury reached the conclusion that the escrow agreement was executed, delivered and accepted, but the proof did not sustain delivery of the money contended for by Cleary, and therefore this instruction was not clear in directing the jury in this respect.

It may be added in this connection that where there is a conflict in the evidence, counsel in the discussion of the facts should hesitate to make any statement that might be considered prejudicial. The company complains of the conduct and many of the remarks of counsel for Cleary as tending to prejudice the jury and inflame their minds against the company. We have examined the record and find a number of complaints, but are of the opinion that it was not necessary to make the remarks that are challenged, as the facts were close and charges of fraud were part of the procedure. Taking into consideration the closeness of the facts and the improper instruction, together with counsel’s remarks, we are of the opinion that the court should have granted a new trial in this case.

We are further of the opinion that the court in ordering that judgment be entered for the company, notwithstanding the verdict, was compelled to pass upon the weight of the evidence, and this was error. Counsel for both Cleary and the company agreed in open court that in reaching a conclusion of this kind the court could not weigh the evidence and enter judgment.

Another question of importance here is whether the escrow agreement was executed, delivered and accepted by the company. As we have stated above, there is a sharp conflict in the evidence as to whether the documents offered in evidence were forged, and for that, reason the question was one for the jury. In passing upon the facts, and the credibility of the witnesses, and in weighing the evidence after the jury had returned a verdict for Cleary, the court erred; also in entering judgment in favor of the company, notwithstanding the verdict of the jury.

Other questions have been called to our attention, but in view of the conclusions we have reached it will not be necessary to consider them.

The judgment in favor of the company is reversed and the cause is remanded for further trial upon the issues joined by the.pleadings of the parties-.

Judgment reversed and cause remanded,

Hall, P. J., and Denis E, Sullivan, J., concur.


text:
    Dr. Kasmir Zurawski, Appellee, v. Dziennik Zjednoczenia Publishing Corporation, Appellant.
    Gen. No. 38,461.
    Opinion filed June 22, 1936.
    Rehearing denied July 6, 1936.

      Beach & Beach, of Chicago, for appellant.
    Hugh T. Martin, Albert T. Belshe and Brewer, Smith & Farrell, all of Chicago, for appellee; James Walker Milne, of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This action whereby the plaintiff sought to recover damages from the defendant for an alleged libel claimed to have been published in the Polish language in defendant’s newspaper of and concerning the plaintiff, was heard in the circuit court of Cook county. The case was tried before the court without a jury, and at the conclusion of the hearing a finding was entered assessing plaintiff’s damages in the sum of $1,000, and upon the finding the court entered a judgment against the defendant, from which defendant appeals to this court.

Plaintiff claims that the defendant published a newspaper in the Polish language in Chicago, of which it was the owner, and which it called Dziennik Zjedno-czenia, translated, “Polish Union Daily.”

In the November 2, 1933, issue of this Polish newspaper appeared an article in Polish, a translation of which is set up in the complaint. The plaintiff is a naturalized Pole and a physician in Chicago, specializing in skin diseases. He has traveled very extensively, and was active in K. O. N., a Polish organization founded in 1912 to promote the independence of Poland; has also been very active in other Polish organizations, and at the time of the trial was the owner of an apartment building in Warsaw, Poland. In November, 1933, he received a decoration from the Polish Government.

The article complained of in the Polish Union Daily and set up in the complaint filed by the plaintiff, was in regard to the action of the Polish Government in awarding decorations to persons who the editor of the paper felt were not deserving of such decorations, when many others who had rendered great services in the Polish cause remained undecorated.

The material portion of the article upon which plaintiff’s action for libel was founded is in these words:

“In the columns of several Polish papers there is now a discussion of new rain of decorations which is to fall on the chests of those workers who are favored by those circles in Warsaw which are giving out the decorations today. .

“Our duty compels us to announce today that a certain doctor known formerly by his activity in K. O. N., later a world traveler and recently located in Chicago purlience (purlieu) is to receive a high decoration and medal for artistic (it seems) work and not, for example, treatment of diseases of the skin . . . and . . . others. . . .

“For some years former ‘honor vivas’ of this kind emitted a specific stench. Characteristic of it is an epigram of Pushkin one of the greatest Russian poets, written on the occasion of giving of a high decoration to one of the Russian dignitaries serving the government well. This epigram is as follows:

“ ‘0 Lord God Jesus Christ, You have saved a thief on a cross And now you have new trouble To save a cross on a thief. ’ ”

The plaintiff alleges in his statement that the facts stated in the publication were wholly false; that by means of the publication plaintiff was injured in reputation to his damage, and demands judgment against the defendant for $5,000.

It appears from the evidence in this record that plaintiff’s reputation was good, but because of the publication plaintiff claimed lie was subjected to hatred, ridicule and contempt.

The defendant newspaper publishes a paper of general circulation, which is circulated among the Polish reading people in Chicago, and the plaintiff’s position is that the article was libelous per se, and that he is entitled to punitive damages, even though he has not pleaded nor established by evidence that he has suffered actual damages.

The answer of the defendant to this contention is that the article is not libelous per se, and that no general rule has been laid down by the courts defining what words are defamatory and what are not; that each case depends largely upon its own facts, and that no action for libel can be predicated on words used as terms of abuse, ridicule or criticism, where the reader understood them as such. It is further urged that certainly the use of such words cannot be actionable in the absence of an allegation and proof of special damages.

It is necessary in our discussion to determine whether the alleged libelous article charges the plaintiff with crime, and therefore, by the use of the printed words, is libelous per se.

The rule applicable calls for proof that in the article alleged to be libelous words were used charging a crime, and no citation of adjudicated cases is necessary to support this rule. It is contended that the plaintiff was charged with being a thief, and, being so charged, of having committed a crime, and by reason thereof he had been subjected to ridicule, contempt, and scorn among his people. Therefore, the question now to be considered is whether or not the plaintiff was charged with crime.

The article in question criticises the award of the decoration to the plaintiff, by the Polish Government, and in its criticism the defendant used harsh language in commenting upon the decorations given “to those who not only did nothing for Poland but even interfered with others in the work.” In doing so this unfortunate expression was used:

“0 Lord God Jesus Christ, You have saved a thief on a cross And now you have new trouble To save a cross on a thief. ’ ’

The plaintiff rightfully acquired the decoration by the award of the Polish Government, and therefore is the lawful owner of the award and cannot be held to have acquired the decoration illegally. In other words, the plaintiff could not be guilty of larceny in taking what -was his own.

One of the earliest cases upon the question of a libelous statement claimed to charge a crime is that of Tebbetts v. Goding, 75 Mass. 254, wherein the plaintiff alleged a charge of arson, and where the court said:

“The declaration in the present case is insufficient in this particular. The words spoken by the defendant import no charge of crime. Standing* by themselves, they do not even indicate whether the burning was intentional or the result of carelessness. This amounts to nothing more than that the act of the plaintiff caused his own mill to be destroyed, which might have been lawfully and innocently done.” See also Bloss v. Tobey, 2 Pickering’s Rep. 320.

Then again, the Supreme Court of Kansas in Gregory v. Nelson, 103 Kan. 192, said:

“If the slanderous words used are calculated to induce the auditors to think the person charged has committed the crime, the injury has been inflicted, and the author is liable. Of course, if the statement in its entirety shows that no crime was committed, as if it had been said that a person had killed one whom the auditors knew was living, or if there is an imputation of a crime of which a person could not be guilty, and of which one hearing the statement must know that he could not by any possibility be guilty, no action would lie. (Newell on Slander and Libel, 3d ed. p. 129.) ”

While it is true that the charge of crime in a libelous article need not be stated with such precision as would be required in an indictment, still if the words used fairly impute a crime, the charge is sufficient.

We are unable to agree with counsel for the plaintiff that the word “thief” in the article means that the plaintiff has committed the crime of larceny. There is nothing in the facts as we have them before us which would indicate a charge was made such as would reflect upon the integrity of the plaintiff. While the article itself is an unfair criticism and is not justified by anything we have been able to find in the record, yet as to what this court would do if proper allegations had been made, together with an allegation of special damages suffered by the plaintiff, we are not prepared to say.

The allegations of the complaint will control as to the admissibility of evidence, and we do not agree with the theory advanced by the plaintiff that he is entitled to punitive damages, even though he has not pleaded nor established by evidence that he has suffered actual damages.

The use of the word “thief” in the article now under consideration was not directly applied to the plaintiff with the intention of creating in the minds of the readers thereof that plaintiff was guilty of larceny, and unless the words used would convey to the readers the idea that plaintiff was a thief in the sense that he was guilty of the crime of larceny, the words were not libelous, as alleged.

In this court in the case of Merrill v. Marshall, 113 Ill. App. 447, we considered the use of the word “thief” and its application to a past act or transaction, and there said: “The word thief, in its ordinary acceptation, imputes the crime of larceny and is actionable per se; but if the word be spoken of the defendant in relation to a past act or transaction, which was known to the hearers, and which past act or transaction was not larceny, nor indictable as a crime, the use of the word is not actionable. Ayers v. Grider, 15 Ill. 37; Young v. Richardson, 4 Ill. App. 364, 373-4; Foval v. Hallett, 10 Ill. App. 265; Welker v. Butter, 15 Ill. App. 209; McKee v. Ingalls, 4 Scam. 30; Zuckerman v. Sonnenschein, 62 Ill. 115.” This reasoning is pertinent in its application to the charge made in the instant case.

Then again, we said in Van Daalen v. Power, 147 Ill. App. 635, which case has been cited by both sides to this litigation, that—

“The words, ‘You are a thief,’ are not actionable unless the defendant in speaking them intended to impute crime to the defendant (plaintiff). This intention will be presumed from the use of the words if not explained. All of the conversation, the facts and circumstances attending it, are to be weighed and considered in determining whether in speaking those words defendant intended to charge the plaintiff with a crime. ’ ’

Therefore, .taking all the facts and circumstances together, the use of the word “thief” in the quotation from the poet Pushkin does not charge the plaintiff with being guilty of the crime of larceny, and having reached this conclusion we are of the opinion that the court erred in the entry of the judgment for $1,000 here on appeal.

For the reasons stated in this opinion, the judgment is reversed.

Judgment reversed.

Hall, P. J., and Denis E. Sullivan, J., concur.


text:
    In re Estate of Mathilde Duthil Koester, Deceased. Henry L. Perkins, Appellant, v. Charles Edward. Koes-ter, Appellee.
    Gen. No. 38,608.
    Opinion filed June 22, 1936.
    Rehearing denied July 6, 1936.
    Harmon & George, of Chicago, for appellant; Calvin M. George and Roy M. Harmon, both of Chicago, of counsel.
    Burry, Johnstone, Peters & Dixon, of Chicago, for appellee; John W. Kearns and John C. Trussell, both of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the petitioner, Henry L. Perkins, a brother and residuary legatee under the last will and testament of Mathilde Duthil Koester, deceased, from an order entered on June 24, 1935, in the circuit court of Cook county, wherein the court decrees that the citation to recover securities for the estate from the respondent is dismissed and the respondent is discharged; that by virtue of the instrument in writing pertaining to said safe deposit box and its contents respondent was the sole legal owner of all the securities and assets contained in said box at the time of the death of his wife, Mathilde Duthil Koester; and that the decree of the probate court dated December 20, 1934, is hereby affirmed in all other respects.

The matter was heard in the circuit court of Cook county, upon a trial de novo on the appeal of Henry L. Perkins from the decree of the probate court dated December 20,1934, whereby the court dismissed a citation to discover assets issued against Charles Edward Koester, respondent.

The basis of the action is a joint tenancy agreement entered into between the parties, which is as follows:

“Joint Tenancy Agreement.

“ (Do not execute this agreement unless lessees are joint owners of the contents of safe and desire survivor to become sole owner thereof in case of the death of one of them.)

“It is agreed between the undersigned, lessees of Safe No. 708 located in the premises of Standard Safe Deposit Company that all property at any time heretofore now or hereafter placed or contained in said safe or in any safe for which said safe may be exchanged now does and shall, so long as it is contained therein, belong to the lessees jointly as joint tenants with right of survivorship therein, and may be withdrawn and removed therefrom, in whole or in part, by all, or any one or more of the lessees; and upon the death of any one or more of the lessees, and upon every such death the title to all property then contained in said safe or the safe for which it is exchanged shall be in the survivors jointly, with the right of survivorship therein or in the sole survivor if there be but one, and such survivors or survivor, and any one or more of them subject to the restrictions contained in the laws of the State of Illinois, with reference to inheritance tax, shall have the right to remove from said safe or the safe for which it is exchanged all or any part of the property contained therein.

“The lessees further agree on behalf of themselves, their respective heirs, administrators, executors and assigns, that Standard Safe Deposit Company, under no circumstances whatsoever, shall be liable on account of the removal by any one or more of the lessees of all or any part of the contents of said safe or the safe for which it is exchanged which are now or at any time hereafter may be contained therein, either before or after the death of one or more of the lessees.

“In Witness Whereof, the undersigned have hereunto set their hands and seals the ...... day of ......,19...

“Signature Mrs. Mathilde Duthil Koester (Seal)

Signature C. E. Koester (Seal) ”

The facts have been stipulated to by the parties, from which it appears that on or prior to December 21, 1931, Charles Edward Koester and Mathilde Duthil Koester were husband and wife and residents of Chicago, Illinois, and on or about that date a written contract was entered into (hereinabove set forth in this opinion), which is the subject of this litigation; that on or about November 25, 1933, Mathilde Duthil Koes-ter executed her last will and testament, and that she died in Chicago, on June 21,1934; that on July 5,1934, this will was filed for probate, and on August 7, 1934, the respondent caused the safe deposit box mentioned in the written agreement to be opened, and removed the contents thereof, which are fully described in the respondent’s answer filed to the citation proceedings.

It also appears from the stipulation of facts that from time to time during decedent’s lifetime the securities were purchased and from time to time prior to her death placed in the box; that of these securities items aggregating approximately $93,000 in face value were purchased by decedent with her individual funds and items aggregating approximately $5,000 by Charles Edward Koester with his own funds; that during the lifetime of decedeiit securities which were in the box were removed either by the decedent or Charles Edward Koester, or by the two of them, and other securities placed therein either by said decedent or by Charles Edward Koester or both of them at the same time; that the parties opened a joint bank account in the Main State Bank, and some of the securities purchased were paid for by checks drawn upon the joint account.

The question involved in this litigation is the right of survivorship, which it is claimed by the petitioner is invalid, 031 the ground that the Act of 1919, ch. 76, Ill. State Bar Stats. 1935, ¶ 2, constitutes a complete revision and restatement of the law of joint rights and obligations, and survivorship, and section 2 of the act abolishes the right or incident of survivorship as between joint tenants or owners of personal property except (1) in the ease of executors and trustees, and (2) in cases where by will or other instrument in writing-expressing an intention to create a joint tenancy in personal property with the right of survivorship.

The respondent replies to this contention by stating that the Act of 1919 clearly sustains the agreement in the present case, so it is unimportant whether or not the act constituted a complete revision of the law on joint tenancies, although a careful scrutiny of the act would indicate that it is only a partial revision of prior acts and that the present contract is valid as a contract without reference to any statute.

Section 2 of the act above mentioned is controlling and provides in part as follows:

“Except as to executors and trustees, and except also where by will or other instrument in writing expressing an intention to create a joint tenancy in personal property with the right of survivorship, the right or incident of survivorship as between joint tenants or owners of personal property is hereby abolished, and all such joint tenancies or ownerships shall, to all intents and purposes, be deemed tenancies in common.”

Upon this appeal the problem before this court is: Did the written agreement in question convey title to the respondent and his wife Mathilde in her lifetime to the securities in the box before her death? As a general rule, under the terms of a contract, possession of personal property is evidence of ownership. The property in question was in the joint possession of the respondent and his wife, and remained in their possession until her death, and being in the possession of the survivor, her husband, we are controlled to some extent by the written agreement, which provides:

“. . . that all property at any time heretofore now or hereafter placed or contained in said safe or in any safe for which said safe may be exchanged now does and shall, so long as it is contained therein, belong to the lessees jointly as joint tenants with right of survivorship therein.”

Counsel for petitioner concedes that a bill of sale from an owner of the securities here involved to the decedent and the respondent as joint tenants with right of survivorship would be “an instrument in writing” like a will, and when operative would convey title and be legally capable of creating a joint tenancy. Adopting the suggestion of counsel as stated, it would follow that if the respondent and his wife were the separate owners of the securities, they, of course, would be capable of entering into a joint tenancy agreement, whereby the title owned by the makers of the instrument would be conveyed to themselves jointly with the right of survivorship upon the death of one of the comakers.

In construing this instrument we find that by the acts of the parties themselves they have construed the meaning of the words used, and it is evident from the conduct of each of them that they treated the securities in the safety deposit box as being jointly owned by them, and this is clear from the stipulation of fact that in the lifetime of the decedent both the parties removed securities by joint action, as well as separately, and further deposited their securities in the box in like manner.

We quite agree with counsel that the only case passed upon by courts of appellate jurisdiction in this State concerning the question here involved is that of Bowes v. Ulm, 279 Ill. App. 618 (Abst.), wherein the court, in passing upon an agreement somewhat similar in its terms of joint tenancy to the one before us, said:

“The agreement is a clear, unambiguous statement of the contract between the parties and in the absence of any evidence tending to show duress or fraud it is conclusive as to their relations to the property. The instant contention of the respondent is sustained by Illinois Tr. & Sav. Bank v. Van Vlack, 310 Ill. 185, and Reder v. Reder, 312 Ill. 209. (See also Graham v. Barnes, 259 Mass. 534; In re Peterson’s Estate, 239 Mich. 452.)”

While the precise question involved in this litigation was not considered by this court in the Bowes case, still from the language used in the contract in the instant case we are of the opinion that the contract was a clear statement of the agreement between the parties, and therefore within the terms of the act.

The petitioner contends that the contract here is not clear and that it does not come within the meaning of the words employed in sec. 2 of the act now under consideration.

In the case of Illinois Trust & Savings Bank v. Van Vlack, 310 Ill. 185, cited by this court in support of its finding that the contract in the Bowes case was a clear, unambiguous statement of the contract between the parties and conclusive of their relations in regard to this property, this significant language was used regarding the section of the statute relied upon in this litigation: ‘ ‘ This statute expressly reserves the right of survivorship in personal property jointly owned, where by will or other instrument in writing an intention is expressed to create a joint tenancy in such property with the right of survivorship, and it provides particularly for the right of survivorship when a deposit in a bank shall be made. . .' . ”

It is evident that the parties have treated the securities in the safety deposit box as the joint property of the signer to the contract with the right of survivor-ship on the death of either one of the parties, and from the facts as we have stated them, the parties themselves treated the contents of the safety deposit box as joint ownership, and for the reasons indicated in this opinion, we are satisfied that the contract in question was a joint agreement-with right of survivorship and the respondent was entitled to the securities contained in the box at the time of the death of his wife, Mathilde Duthil Koester. The order of the circuit court is accordingly affirmed.

Order affirmed.

Hall, P. J., and Denis E. Sullivan, J., concur.