author: Mr. Justice Johnston

text:
    Leslie Senelick, for use of Home Bank and Trust Company, Appellant, v. Dr. Phillip Mann et al., Garnishees. Great Northern Produce Company et al., Appellees.
    Gen. No. 30,054.
    1. Garnishment — proceedings ancillary to main action. It is the intendment o£ section 1 of the Garnishment Act, Cahill’s St. ch. 62, Ifl, that a garnishment proceeding shall be ancillary to the principal action and a continuation thereof.
    2. Garnishment — filing of garnishment affidavit as conferring jurisdiction upon garnishee. The filing of a garnishment affidavit pursuant to section 1 of the Garnishment Act, Cahill’s St. ch. 62, H1, as a part of the record' in the principal action confers upon the court in which such principal action is being prosecuted jurisdiction over the subject matter and the persons of the garnishee defendants,
    3. Garnishment — waiver of objection to jurisdiction by answering interrogatories and moving to withdraw answers. Where garnishee defendants, after appearing specially to contest the jurisdiction of the court in which the principal action was being prosecuted, filed' an answer .under such special appearance replying to the interrogatories of the plaintiff touching their indebtedness to the principal defendant, they thereby entered a general appearance in the. proceeding and waived their right to question the jurisdiction of the court, nor were they relieved from the effect thereof by the action of the court in thereafter granting their motion to withdraw their answers to such interrogatories, such motion amounting to an express recognition of the jurisdiction of the court and constituting an additional waiver of their right to object to the jurisdiction.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. Timothy D. Hurley, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1925.
    Reversed and remanded with directions.
    Opinion filed March 2, 1926.
    Cheney & Peterson, for appellant.
    No appearance for appellees.
   Mr. Justice Johnston

delivered the opinion of the court.

This is an appeal by Leslie Seneliek for the use of the Home Bank and Trust Company, a corporation, the plaintiff, from an order of the superior court of Cook county, overruling the general demurrer of the plaintiff to the plea of the Great Northern Produce Company, a corporation, Arthur C. Schneider and Victor H. Hodupp, garnishees, in a garnishment proceeding brought by the, Home Bank and Trust Company, after it had obtained a judgment against Seneliek.

The plea of the garnishees, which was to the jurisdiction of the court, was, as follows:

“And now come Great Northern Produce Co., a corporation, Arthur C. Schneider and Victor H. Hodupp, heretofore served as garnishees, under a special and limited appearance for the purpose of objecting to the jurisdiction of the court, and they thereupon say that there is no authority in the statutes of Illinois for the filing of a garnishee affidavit as a part of the record of the above entitled cause and that the summons issued herein and the interrogatories filed herein do not confer jurisdiction of the subject matter upon the court and over the persons of these garnishee defendants, wherefore they aver such want of jurisdiction and that the summons issued herein should be quashed and these defendants discharged and dismissed, and this they pray may be inquired into by the court, with their costs to be taxed herein, etc.”

In addition to the above plea the garnishees filed the following answer in the garnishment proceeding:

“Under a special and limited appearance, as above stated, these garnishee defendants, above named,' say for answer to the interrogatories filed, that they have no property of the said Leslie Seneliek, and do not owe him any moneys, and say ‘No’ to each of such interrogatories.”

The court overruled the plaintiff’s demurrer to the garnishees’ plea, struck the plaintiff’s affidavit in support of garnishment from the files, and quashed the summons issued against the garnishees.

The plaintiff elected to stand by its demurrer.

The Act providing for garnishment after judgment does not prescribe that the affidavit in support of garnishment shall not be filed as part of the record of the principal action on which the garnishment proceeding is based; nor does the Act direct that the garnishment proceeding shall be begun as a separate new action. On the contrary, section 1 of the Act [Cahill’s St. ch. 62, fí 1], by implication, intends that the garnishment proceeding shall be ancillary to the principal action, and a continuation of that action. Section 1 provides as follows:

“Whenever a judgment shall be rendered by any court of record, or any justice of the peace in this State, and an execution against the defendant or defendants in such judgment shall be returned by the proper officer ‘No property found,’ on the affidavit of the plaintiff, or other credible person, being filed with the clerk of such court or justice of the peace, that said defendant or defendants has or have no property within the knowledge of such affiant, in his or their possession, liable to execution, and that such affiant hath just reason to believe that any other person is indebted to such defendant, or defendants, or to either or any of such defendants, or hath any effects or estate of such defendant, or defendants, or of either or any of such defendants, in his possession, custody or charge, it shall be lawful for such clerk or justice of the peace to issue a summons against the person supposed to be indebted to, or supposed to have any of the effects or estate of the said defendant, or defendants, or of either or any of such defendants, commanding him to appear before said court or justice, as a garnishee; and said court or justice of the peace shall examine and proceed against such garnishee or garnishees, in the same manner as. is required by law against garnishees in original attachments. If the garnishee is indebted to or has any effects or estate of a part only of such defendants, judgment shall be against the garnishee in favor of such part of the defendants for the use of the plaintiff.”

It will be observed that section 1 directs that after the return of an execution on the judgment of no property found, the affidavit is to be filed with the clerk of “such” court; that “such” clerk shall issue the summons commanding the garnishee to appear before “said” court; and that the judgment shall be against the garnishee for the use of “the plaintiff.” In using the term1 ‘plaintiff, ’ ’ section 1 does not mean the plaintiff in a new action, but evidently refers to the plaintiff in the principal action, who occupies the position of plaintiff in relation to the principal action, and also to the garnishment proceeding itself. 28 Corpus Juris, p. 16.

In some jurisdictions the garnishment proceeding is considered a separate, distinct action. 28 Corpus Juris, pp. 22, 23. But generally the principal action and garnishment proceeding are regarded as constituting a single action. 28 Corpus. Juris, p. 22.

In the Encyclopedia of Law and Procedure (vol. 20, p. 979) it is stated that: “Garnishment is in no sense a new suit, but is a special auxiliary remedy for more effectually reaching defendant’s credits, and is always ancillary to the main action under which it is brought.”

The Supreme Court of Illinois has not decided in precise terms the question whether the garnishment proceeding is a new suit, but on referring to the garnishment proceeding the expressions of the Supreme Court indicate clearly that the court regards the garnishment proceeding as ancillary to the principal action, and, in effect, a continuation of the principal action.

In the case of Chanute v. Martin, 25 Ill. 63, the court ,said (p. 65): “This whole proceeding is in the nature of process to obtain satisfaction of a judgment.”

In the case of Bear v. Hays, 36 Ill. 280, the court said (p. 281): “We are of opinion that process against a garnishee, in aid of a suit at law, wherein an execution has been returned ‘milla bona,’ is not original process.”

In the case of Dennison v. Taylor, 142 Ill. 45, in discussing the question whether the judgment in an attachment proceeding could be attacked in a garnishment proceeding, the court said (p. 56): “Now, the suit against the garnishee by the defendant in attachment, for the use of the plaintiff in attachment, is ancillary to the controversy between such plaintiff and defendant, but both controversies are parts of one and the same statutory proceeding by attachment, and the suit against the garnishee grows out of and is based upon, and dependent upon, the suit against the principal debtor. Much that is in the record of the attachment proceeding is alike a part and parcel of the record in each of these suits, and of this kind are the judgment rendered against the defendant in attachment and all portions of the record that have a bearing on the matter of the jurisdiction of the court in rendering such judgment. ’ ’

In the case of LaSalle Opera House Co. v. LaSalle Amusement Co., 289 Ill. 194, the court said (p. 198): “Garnishment is a statutory proceeding, in which no presumption,1 of jurisdiction is indulged but a compliance with the statutory requirements must appear. The proceeding being a means of procuring satisfaction of the original judgment, the garnishee may inquire into the validity of the proceedings, by which the court acquired jurisdiction of the judgment debtor: (Kirk v. Dearth Agency, 171 Ill. 207.) All portions of the record in the original proceeding having a bear-, ing on the question of the jurisdiction of the court in rendering a judgment are part of the record in the garnishment proceedings. (Dennison v. Taylor, 142 Ill. 45.) The execution issued and its, return are not part of the common-law record in the original proceeding, but they, together with the affidavit for the summons against the garnishee, are the means of acquiring jurisdiction in the garnishee proceedings, and are therefore a part of the record which must be shown to sustain a judgment against the garnishee. The absence of them from the record is fatal to the judgment.”

We are of the opinion that in the case at bar the garnishment proceeding was not a new, distinct proceeding from the principal action on which the garnishment proceeding was based, but that the garnishment proceeding was. a proceeding ancillary to the principal action, and, in effect, a continuation of the principal action. In this view, the affidavit for garnishment properly was filed by the plaintiff in the principal action, who- was also the plaintiff in the garnishment proceeding, as part of the record in the principal action. The trial court therefore erred in overruling the plaintiff’s demurrer to the plea of the garnishees to the jurisdiction of the court.

We further are of the opinion, as an independent ground of our decision, that in filing an answer to the interrogatories in the garnishment proceeding, the garnishees thereby entered a general appearance in the proceeding, and waived their right to question the jurisdiction of the court. It is true that the court granted the garnishees’ motion for leave to withdraw their answers to the interrogatories. But that did not relieve the garnishees from the effect of their waiver of objection to the jurisdiction. The motion was an express recognition by the garnishees of the jurisdiction of the court, and constituted another waiver of objection to the jurisdiction.

In the case of Nicholes v. People, 165 Ill. 502, the court said (pp. 503, 504): “Appellant had a right to appear especially and question the sufficiency of the notice to confer jurisdiction, and if he went no further the court would have no right to render a judgment. * * * A special appearance must be for the purpose of urging jurisdictional objections only, and it must be confined to a denial of jurisdiction. An appearance for any other purpose than to question the jurisdiction of the court is general. * * * In entering his appearance in this case appellant did not confine himself to the question of jurisdiction, but stated seven objections against the proceeding. The seventh was: ‘That the improvement for which said assessment was made has been built and paid for by these objectors at their own private expense, and the same has been approved and accepted by the City of Chicago.’ By this objection appellant called upon the court to hear and decide the question whether the improvement had been built, paid for and accepted as alleged. This the court could only do upon the hypothesis that it had jurisdiction, and the objection.clearly went to the merits. He could, not invoke the judgment of the court on all his objections without a general appearance, and could not in the same paper ask for an exercise of such jurisdiction and disclaim an intention to submit to it.”

In the case of Ladies of Maccabees v. Harrington, 227 Ill. 511, the court said (p. 525): “If the defendant appears and makes a motion or files a plea or takes any other step which the court would have no power to dispose of without jurisdiction of the defendant’s person, such action on the part of the defendant will be a submission of his person to the jurisdiction of the court and will be a waiver of any objections to the jurisdiction. He cannot, by his voluntary action, invite the court to- exercise its jurisdiction and at the same time deny that jurisdiction exists.”

In the ease of Mix v. People, 106 Ill. 425, the court said (p. 429): “In personal actions, if the defendant appears and pleads to- the merits, it is wholly immaterial whether the service was defective, or whether any summons was ever issued and served upon him.” For the* reasons, which we have stated, the order of the trial..court is reversed and the cause remanded with directions to the court to sustain the demurrer of the plaintiff to the plea of the garnishees; to vacate the order quashing the garnishee summons and striking the affidavit of the plaintiff from the files; and also to vacate the order granting leave to the garnishees to withdraw their answers to the interrogatories.

Order reversed and cause remanded with directions.

Hatchett, P. J., and HcSurely, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    James H. Hooper, Appellant, v. Charles Buvidas et al., Appellees.
    Gen. No. 30,198.
    1. Forcible entry and detainer — presumptive rigMfulness of possession. Parties in actual, peaceable possession of real property are deemed in law to be in possession rightfully.
    2. Forcible entry and detainer — burden of proof as to wrongfulness of possession of defendant. The burden rests upon the plaintiff in forcible entry and detainer proceedings to show that parties who are in actual, peaceable possession of the property are not rightfully in possession.
    3. Forcible entry and detainer — presumption as to source of defendant’s right to possession. No presumption arises, in forcible entry and detainer proceedings by a purchaser of real property at a sheriff’s sale in execution against parties in actual peaceable possession thereof, that such parties hold possession by virtue of a deed issued to them as the result of proceedings in probate court to sell the same for the payment of the debts of the decedent, in the absence of proof that.they were not in possession of the property prior to the issuance of such deed.
    4. Forcible entry and detainer — presumption as to validity of deed held by defendant. No presumption arises, in forcible entry and detainer proceedings by the holder of a sheriff’s deed to property against the holders of a deed issued as the result of proceedings in probate court for the sale of such property to pay the debts of the decedent, that their deed is void because the judgment creditor for whose benefit the sheriff’s sale was conducted was not made a party to the proceedings in probate court.
    5. Forcible entry and detainer — right to inquire into title to property. In forcible entry and detainer proceedings the title to the property cannot be inquired into in any circumstances for any purpose.
    6. Forcible entry and detainer — right to question validity of deed held by parties in possession. The plaintiff in forcible entry and detainer proceedings cannot attack the validity of the deed, held by parties in peaceable possession of the property, secured by them as the result of proceedings in probate court for the sale of such property to pay debts of the deceased former owner thereof.
    7. Forcible entry and detainer — deed to property as evidence. Since the question in forcible entry and detainer proceedings is not in whom is the title to the premises, but is one of possession and the right thereto, a deed is admissible in evidence only for the purpose of showing the nature and extent of a party’s possession.
    Appeal by plaintiff from the Municipal Court of Chicago; the Hon. Howard Hayes, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed March 2, 1926.
    James H. Hooper, pro se.
    No appearance for appellees.
   Mr. Justice Johnston

delivered the opinion, of the court.

This is an action of forcible detainer, brought in the municipal court of the city of Chicago' by James H. Hooper, plaintiff, against Charles Envidas, Elizabeth Kukuraitis and Dominick Paulaskis, defendants, to recover possession of certain property which the plaintiff alleges the defendants are unlawfully withholding from him.

The case was tried before the court without a jury. The judgment of the court was in favor of the defendants. From the judgment of the court the plaintiff has prosecuted this appeal.

Claiming the right to the possession of the property as a purchaser at a sale of the property under a judgment, the plaintiff has brought the action under paragraph 6, section 2 of the Forcible Entry and Detainer Act [Cahill’s St. ch. 57, 2, subd. 6].

Section 2 [Cahill’s St. ch. 57, ft 2], after stating that: “The person entitled to the possession of lands or tenements may be restored thereto in the manner hereafter provided,” provides in paragraph 6 as follows:

“When lands or tenements have been conveyed by any grantor in possession, or' sold under the judgment or decree of any court in this State, or by virtue of any sale in any mortgage or deed of trust contained, and the grantor in possession or party to such judgment1 or decree or to such mortgage or deed of trust, after the expiration of the time of redemption, when redemption is allowed by law, refuses or neglects to surrender possession thereof after demand in writing by the person entitled thereto, or his agent.”

The defendants appeared but offered no evidence. The only evidence in the case was introduced by the plaintiff.

The, property in question was owned by Joseph Adomaitis. February 4, 1920, Kazimir Adomaitis obtained a judgment against Joseph Adomaitis. On February 7,1920, Joseph Adomaitis died. On August 24, 1920, Kazimir Adomaitis filed his claim upon the judgment in the probate court in the estate of Joseph Adomaitis, and the court allowed the claim.

On April 1, 1922, Anna Adomaitis, the administratrix of the estate of Joseph Adomaitis, filed a petition in the probate court to sell the property in question to pay the debts of the estate. Kazimir Adomaitis was not made a party to the proceeding. Under the petition the property was sold to the defendants, and a deed to- the property was given to them by Anna Adomaitis, the administratrix. On October 22, 1922, Kazimir Adomaitis filed objections to the final account in the estate of Joseph Adomaitis, alleging that he was a creditor of Joseph Adomaitis and a claimant against the estate of Joseph Adomaitis, had obtained the judgment of February 4, 1920, and was- entitled to have it paid out of real estate owned by Joseph Adomaitis; that ever since February 4, 1920, the said judgment had been a lien in his favor against the said real estate ; that he was not made a party to the petition for leave to sell the said real estate to pay the debts of the said estate; that the administratrix now claims the proceeds of the sale exclusively for herself.

On November 10,1924, the property was sold by the sheriff to the plaintiff under the judgment of Kazimir Adomaitis, and a deed to the property was given to the plaintiff by the sheriff.

The plaintiff claims- the right to the possession of the property by virtue of the sheriff’s deed. The plaintiff contends that “the sheriff’s deed divested the debtor of his title and right to the possession and from that moment parties claiming under the debtor subsequent to the lien of the judgment became trespassers. ’ ’ In support of his contention the plaintiff cites the case of Cook v. Norton, 48 Ill. 20, which holds that: “When the sheriff sells under the judgment and execution * * * he sells the debtor’s title, whatever it may be, and the debtor has no more right to claim that his possession, after the sheriff’s sale and deed, is adverse to the sheriff’s grantee than he would have to set up an, adverse possession against his own grantee.”

In the case at bar the defendants were not parties to the judgment obtained by Kazimir Adomaitis under which the sheriff sold the property of Joseph Adomaitis. to the plaintiff, and the evidence does not show that any privity of estate existed between the defendants and the judgment debtor, Joseph Adomaitis. It does not appear from the evidence that the defendants acquired possession of the property through Joseph Adomaitis.

The. fact is that the evidence does1, not show how or when the defendants obtained possession of the property. As far as the evidence shows, the defendants were in actual peaceable possession of the property. Being in actual peaceable possession they are deemed in law to have been in possession rightfully, and the burden of proof is on the plaintiff to overcome that presumption. Hammond v. Doty, 184 Ill. 246, 249; Fitzgerald v. Quinn, 165 Ill. 354, 365, 366. In other words, in order to maintain his cause of action, it is essential that the plaintiff should prove by a preponderance of the evidence that the defendants are in possession of the property unlawfully. Preston v. Zahl, 4 Ill. App. 423, 425.

The only manner in which the plaintiff attempts to make the proof isi by* indulging the presumption that the defendants obtained possession of the property by virtue of the deed of the administratrix, Anna Adomaitis, at the sale in the proceeding in the probate court to sell the property to pay the debts, of Joseph Adomaitis ; and by further presuming that the deed was void for the reason that Kazimir Adomaitis, the judgment creditor of Joseph Adomaitis, was not a party to' the proceeding.

In our opinion neither presumption properly can he indulged.

The plaintiff has not shown that the defendants were not in possession of the property before they obtained the deed of the administratrix, nor has the plaintiff shown that the defendants took possession after the deed. From the mere fact that the defendants acquired a deed to the property under the petition to sell the property to- pay the debts of Joseph Adomaitis, it does not follow logically as a direct inference that the defendants took possession of the property under that deed. The defendants may have acquired otherwise the right to possession of the property. However that may be, it is indisputable, that there is no evidence to show how the defendants actually obtained possession of the property. The plaintiff has failed to prove that the- defendants- took possession of the property under their deed from the administratrix in the proceeding in the probate court, and we do not think that such proof can be supplied by a presumption.

The views we have, expressed are supported by decisions of Illinois Appellate Courts. In the case of Kingsbury v. Perkins, 15 Ill. App. 240, the court said (pp, 240, 241):

“This action was brought by appellant against appellees under the sixth clause of the second section of the Forcible Entry and Detainer Act, which gives such action where land has been sold under the judgment or decree of any court in this State, and the party to such judgment or decree, after the expiration of the time of redemption, refuses or neglects to surrender possession after demand in writing by the person entitled thereto.
“Appellees were not parties to the judgment under which the premises were sold, and there is nothing in the record to show they went into possession under Foster A. Baird, who was one of the defendants in, the judgment, and as to whose property the land had been sold on execution. An action of forcible detainer, under this specification of said sixth clause, lies only against a ‘party to such judgment or decree.’ The parties to the judgment would include only those against whom it was recovered, and those who. are bound by it. No privity of estate is shown to exist between the appellees and the judgment debtor; and even if that were or could be assumed it does not appear their possession is in subordination to the title or right of possession of appellant.”

In the case of Lehman v. Whittington, 8 Ill. App. 374, the court said (pp. 376, 377):

“Two grounds are urged by appellant for the reversal of the judgment: First, that there was no proof of service of the notice and demand for the possession of the premises'in question; second, that appellee failed to show that appellant was in possession of, or claimed any right to. the premises through Cook, the grantor in the trust deed. Both grounds we think are well taken. The theory of appellee’s case was that appellant, Lehman, was by his tenant, Pagle, in possession of the premises, under Cook, and that appellee, having purchased the same at a sale made by Grant as trustee, and obtained from him a trustee’s deed therefor, was: entitled to- her action of forcible detainer against Lehman to recover the possession. * * * Appellant was not a party to the Cook trust deed, nor was there any sufficient evidence that he was. in possession of the premises under Cook. It appears that he had had some negotiations with a view of purchasing Cook’s interest in the property, but upon being furnished with an abstract of the title, and becoming satisfied that Cook did not have a good title, he declined to purchase. How he happened to be in possession of the property, whether he entered under some one having a superior title to Cook’s, or otherwise, does not appear.”

We are of the opinion that even if the plaintiff had made the necessary proof that the defendants were in possession of the property by virtue of the deed from the administratrix, the, plaintiff has not proved that his right to, the possession of the property is superior to the right of possession of the defendants. In this connection it must be borne in mind that the plaintiff contends that this proof has been made by reason of the fact that the administratrix’ deed was “absolutely void” because Kazimir Adomaitis, the judgment creditor of Joseph Adomaitis, was not made a party to the proceedings in the probate court under which the defendants acquired the deed from the administratrix.

We do not think that it is permissible to go into, the question whether the deed which the defendants, acquired from the administratrix was void. Without deciding the question, we wiE state that our impressions are that the deed was not void; that as far as the present record shows, the deed was valid, and the defendants took the property in question under the, deed subject to the lien of the judgment creditor, Kazimir Adomaitis.

Obviously, the only purpose for making an inquiry into the question whether the deed which the defendants obtained from the administratrix was, void, would be to decide whether the, deed of the plaintiff was superior to, the deed of the defendants. This would be, in effect, determining the question whether the plaintiff’s title to the property was superior to the title of the defendants. The rule is firmly settled in Illinois that in an action of forcible detainer the title to the property cannot be inquired into in any circumstances for any purpose. Stoddard v. Illinois Improvement & Ballast Co., 271 Ill. 98, 99; Thomas v. Olenick, 237 Ill. 167, 168.

It has been expHcitly held in the case of Peters v. Balke, 170 Ill. 304, 311, that: “The title can no more be inquired into for any purpose in this action now than it could before the passage of clause 6” of the Forcible Detainer Act; that “while this is so, plaintiff cannot recover under the statute unless he offers in evidence a deed for the purpose of showing that he is a grantee entitled to possession.”

The question in an action of forcible detainer “is not in whom is the title to the premises, but is one of possession and the right to possession.” Universal Vending Service Co. v. DeMeo, 231 Ill. App. 30, 37. The rule is established by a long line of decisions that the deed is admissible in evidence for the purpose of showing only the nature and extent of the possession of the plaintiff. Huftalin v. Misner, 70 Ill. 205, 207; Pearson v. Herr, 53 Ill. 144, 149; Rockhold v. Doering, 122 Ill. App, 194, 197; Ragor v. McKay, 44 Ill. App. 79, 80, 81.

For the reasons stated the judgment of the trial court is affirmed.

Affirmed.

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


author: Mr. Justice McSurely

text:
    The People of the State of Illinois, Appellee, v. Waskow Butter Company, Appellant.
    Gen. No. 30,324.

      Pood — nut oil product as prohibited butter substitute. Sale of a product consisting wholly of nut oils, salt and a vegetable coloring matter, which although yellowish in color is distinguishable from butter at a distance of 10 feet, which has a distinctive taste and odor different from butter and is not usable as a substitute therefor except for certain cooking purposes, which is packed in distinctive triangular cartons and labeled “Higgins Nut Product — prepared for cooking and baking,” etc., and which is not sold or intended to be sold as a substitute for butter, is not prohibited by Cahill’s St. ch. 56b, 90 et seq.

      Appeal by defendant from the Municipal Court of Chicago; the Hon. James J. O’Toole, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1925.
    Reversed.
    Opinion filed March 2, 1926.
    W. F. McLaughlin, for appellant.
    Robert E. Crowe, State’s Attorney, for appellee; Edward H. Taylor, Assistant State’s Attorney, and Arthur L. Israel, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from a judgment against defendant entered upon a trial by the court of an action of debt for the recovery of a penalty charging violation of the act ““to regulate the manufacture and sale of substitutes for butter.” [Cahill’s St. ch. 56b, ft 90.] The damages were assessed at $50. It is stated that the Waskow Butter Company is only the nominal defendant, the real party in interest being the Higgins Manufacturing Company of Providence, Rhode Island, and the question involved is- whether the sale in Illinois of a cooking compound called “Higgins Nut Product” is in violation of the act referred to. This act is in part as follows:

“Section 1. That for the purpose of this act, every article, substitute or compound, other than [that] which is produced from pure milk or cream therefrom, made in the semblance of butter and designed to be used as a substitute for butter made from pure milk or its cream, is hereby declared to be imitation butter. * * *
“Section 2. No person shall coat, powder or color with annato, or any coloring matter whatever, any substance designed as- a substitute for butter, whereby such substitute or product so colored or compounded shall be made to resemble butter, the product of the dairy.
“No person shall combine any * * * vegetable oil * * * or combination of the two, or with either one, any other substance or substances, for the purpose or with the effect of imparting’ thereto a yellow color or any shade of yellow so that such substitute shall resemble, yellow or any shade of genuine yellow butter. * * #”

This statute was held constitutional in People v. Freeman, 242 Ill. 373.

There is not much conflict in the evidence. The Hig-gins Nut Product is made from pure cocoanut and peanut oils in the proportions of 80 pounds of cocoanut oil, 20 pounds of peanut oil, 3 pounds- of salt, and one-tenth of one per cent of harmless yellow coloring matter to each 100 pounds of the product. As an article of food it is pure, nutritious, and in no wise injurious to health. It is issued by the manufacturer and sold only in one pound, triangular paper packages, on which in large letters, are the words: “HIGGINS NUT PEODUCT — prepared for cooking and baking— Higgins Manufacturing Company — Providence, Ehode Island — T-10 of 1% Vegetable Color.” The product without coloring is a dirty, unappetizing gray, and it cannot be made white.

It is urged that it comes within the language of the statute- [Cahill’s St. eh. 56b, |[ 91] which prohibits coloring “any substance designed as a substitute for butter, whereby such substitute * * * shall be made to resemble butter. ’ ’ Nut Product is shown to be suitable only for cooking and not for table use. It will not spread on bread. When put on bread it flakes and is waxy like paraffine. It has- a different odor from butter, having what one witness described as a “ nutty ’ ’ smell. It also has a distinctly different taste from butter, giving a slight taste of peanuts to articles of food in which it is used. It will not brown in cooking and becomes white. It has more oily globules, than butter has in cooking. Witnesses testified that when used with other materials it . acts, very differently than butter, and that no one would mistake it for butter. While there is some resemblance to butter in color, witnesses were able to distinguish between samples of butter and Nut Product held at a distance of about 10 feet. It is also in evidence that the product may be used in cooking certain foods in which' butter is usually used.

A reasonable construction of the words of the Illinois act, “any substance designed as a substitute for butter,” means a substance designed as a substitute for butter in all the usual and customary uses of butter. The act could not reasonably apply to a substance which cannot be used for the largest and most usual use of butter, namely, as a spread on bread. A reasonable construction must take into account butter’s major use and not alone its use for cooking. We construe the language of the statute as nonapplicable to the Nut Product in question.

Is it within the general terms and intent of the act f In the Freeman case, supra, the court said:

“Aside from any effect upon the public health the object of the act is, not to prohibit or discriminate against the manufacture or sale of substitutes for butter, but to regulate such manufacture and sale so as to protect the public against the sale, as butter, of a different article. With the sale, for what it is, of any substitute for butter the law does not interfere. It is only the sale under pretense that the article sold is that which it is not that the law affects. * * * The purpose of the act was to protect the public against fraud of this kind by preventing the vendor of any substitute for butter from using coloring matter therein to impose upon his customers and deceive them into believing they were purchasing butter when they were purchasing a different thing.”

The court held the act valid as a proper exercise of the police power of the state to prevent fraud, deceit, cheating and imposition.

This product was under consideration in Higgins Mfg. Co. v. Page, 297 Fed. 645, which was an action for the recovery of a certain tax on oleomargarine which the statute defined as such mixtures and compounds as are “made in imitation or semblance of butter, or when so made, calculated or intended to be sold as butter or for butter.” The court, in considering whether the Higgins Nut Product came within this language, held that the trade dress was not only not an aid to deception but was designed to tell the truth and avoid deception; that the triangular form of the package and the words thereon negative any deception of the customer; that when such package was offered to a customer and opened, the yellow color of the product would probably1 not make him believe that he had obtained butter; that if there might be a momentary deception it would be corrected at once on tasting it, and it would not be eaten on bread as butter. The court further considered the use of the product in cooking and baking, noting that the yellow color is used not to deceive but to avoid prejudice against greasy food products which are white’ or gray. The court found that it does not have the characteristic butter taste, but has a nutty flavor, and held that this product is not made in imitation of butter and is not calculated or intended to be sold as butter or for butter, and therefore it was not within the statute.

The evidence before us shows that the Nut Product contains no dairy products and there is no> pretense in any of the advertising that it does. It is represented only as a cooking compound, and it is not advertised as butter or as a substitute for butter, and the word “butter” is not used in the advertising. It is conceded by the plaintiff that the product was not designed to deceive or to be sold as butter or for butter. As no element of deception is alleged, proven or claimed, we hold that the prohibition of this article is not witMn the intent of the act.

As the sale of this product is not prohibited specifically by the language of the act and is not within its general intent, the judgment is reversed.

Reversed.

Matchett, P. J., and Johhstoh, J., concur.


author: Mb. Justice McSueely

text:
    Kimbell Trust & Savings Bank, Complainant Below, Appellee, v. William O. Olsen, Defendant Below, Appellee, on appeal of George Max Adams and Arlington Heights State Bank, Appellants.
    Gen. No. 30,370.
    1. Interpleader — right of bank certifying check to maintain bill against drawer, payee and transferee. Where a bank certified a check given by the vendee to the vendor of certain real estate, it could not thereafter maintain a bill of interpleader against such parties on the ground that the drawer had served notice on the bank to stop payment of the check for the reason that the vendor had procured the same by fraud, regardless of whether the certification was at the request of the drawer or of the holder of the check.
    2. Fraud and deceit — necessity of proof of falsity of representations and intent to deceive. In an action for fraud and deceit in procuring a sale, the purchaser refusing to rescind, it must be proven that the party making the representations knew they were false when made, and made them with the intention to deceive.
    3. Interpleader — sufficiency of evidence to show fraud in procuring issuance of check on complainant bank. Evidence in a suit upon a bill of interpleader by a bank against the drawer, the payee and the transferee of a check drawn against funds of the drawer on deposit in such bank, held not to show that the drawing of the check was procured by the fraud of the payee upon the drawer, and to show that the transferee was a bona fide holder for a valuable consideration.
    Appeal by defendants from the Circuit Court of Cook county; the Hon. Ira Ryner, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1925.
    Reversed and remanded with directions.
    Opinion filed March 2, 1926.
    H. J. Thal, for appellants.
    Rathje, Weseman, Hinckley & Barnard, for certain appellees; and Bulkley, More & Tallmadge, for W. O. Olsen, appellee.
   Mb. Justice McSueely

delivered the opinion of the court.

This is an appeal by defendants, Arlington Heights State Bank and George Max Adam, from a decree entered upon a bill of interpleader. The Kimbell Trust So Savings Bank by its bill alleged that it was in possession of funds amounting to $10,421.26, which had theretofore been deposited with it by W. 0. Olsen to the credit of his checking account; that on February 28, 1923, Olsen drew his check upon the complainant for this sum, which check complainant certified; that George Max Adam had the check in his possession and claimed to be the lawful holder and owner thereof; that Olsen had served complainant with written notice stopping payment and stating that the check had been obtained by Adam by fraud. Complainant averred that it was willing to pay the money to such person as would be lawfully entitled to the same. Defendant Olsen answered, admitting the allegations of the bill and alleging that Adam had obtained the check through misrepresentations. Adam answered that Olsen drew the check; that it was certified by complainant bank and delivered by the bank’s vice president to him, Adam, for a good and valuable consideration, namely, as part of the sale price of certain real estate sold by Adam to W. O. Olsen; that on the day he received the cheek, February 28, 1923, he indorsed and delivered the same for a good and valuable consideration to the Arlington Heights State Bank of Arlington Heights, Illinois,, wMeh ever since was and still is the bona fide holder of the check. By amendment the Arlington Heights. State Bank was made a defendant and answered, claiming that it received the check on February 28, 1923, from Adam for a valuable consideration without knowledge on its part of any infirmity in the check or defect in the title of Adam, and that it thereby became the holder in due course and was and still is entitled to the payment of the check.

The cause was referred to a master in chancery, who heard evidence and reported (1) that the bill of complaint was properly filed as a bill of interpleader; and (2) that the Arlington Heights State Bank was entitled to the proceeds of the check. The Arlington Heights State Bank filed exceptions to the report in so far as it related to the right of complainant to maintain its bill of interpleader; and the defendant Olsen filed exceptions to the report in so far as it related to the recommendation as to who was entitled to the fund. Upon hearing the chancellor overruled all exceptions to the report and found that complainant was entitled to maintain its bill of interpleader, ordered the payment of the amount of the check into the hands of the clerk, with dismissal of complainant out of the suit, and ordered the clerk to/ pay $5,000 to the defendant Olsen and the balance to the Arlington Heights State Bank.

Was complainant entitled to maintain its bill of interpleader?

February 9, 1923, defendant Adam made a written contract with defendant W. 0. Olsen, agreeing to convey to the latter certain improved premises in Chicago, and the parties thereafter met to close the sale. After adjusting incumbrances, rents, insurance premiums, etc., there was due Adam $10,421.26. As Adam did not then have with him a canceled interest coupon which Olsen wished to have delivered to' him, the delivery of the deed and the balance of the purchase money was postponed until the next day, February 28. On this day Adam went to the complainant bank and delivered to E. H. Olsen, vice president of the bank, the canceled interest coupon note and the deed to the premises, and E. H. Olsen gave Adam the check in question for $10,421.26, drawn by W. 0. Olsen upon the complainant bank, payable to E. H. Olsen, whn indorsed it to the order of Adam. The complainant bank . certified the check. W. 0. Olsen testified that he had this, done on February 28, 1923. E. H. Olsen testified that W. 0. Olsen gave the check to him on February 27, when it was uncertified; that the check was. returned to W. 0. Olsen, but that the second time he gave it to E. H. Olsen it was certified. Adam testified that he received the check on February 28, and that he and E. H. Olsen went to the cashier of complainant bank and had the check certified. It is! a reasonable inference that it was the wish and suggestion of both Olsen, the drawer, and Adam, the payee, that it be certified.

On the evening of the same day Adam indorsed the check and delivered it to the cashier of the Arlington Heights State Bank in pursuance of arrangements he had made with this bank, whereby it agreed to guarantee a letter of credit for $5,000, to apply part of the proceeds of the check on the payment of a note held by it against Adam, to' use part to cover an overdraft in Adam’s checking account, and also to take up another note. When the Arlington Heights State Bank received the check it made a deposit slip for same, and both check and slip were placed on a spindle, as it was customary the next morning to make entries on the books of all deposits coming in the evening before. The following day, March 1, the Arlington Heights State Bank received a telephone message from the attorney for W. O. Olsen stating that payment of the check had been stopped on the ground that it had been procured by Adam through misrepresentation and fraud, and a similar message was shortly thereafter received from the Kimbell Trust & Savings Bank.

The equitable remedy of interpleader depends upon and requires the existence of the four following elements :

“First, the same thing, debt or duty must be claimed by both or all the parties against whom the relief is demanded; second, all the adverse titles or claims must be dependent on or be derived from a common source; third, the person asking the relief — the plaintiff — must not have nor claim any interest in the subject matter; fourth, he must have incurred no independent liability to either of the claimants, — that is, he must stand perfectly indifferent between them, in the position, merely, .of stakeholder.” Morrill v. Manhattan Life Ins. Co., 183 Ill. 260, 267; Platte Valley State Bamk v. National Live Stock Bank, 155 Ill. 250; Rauch v. Fort Dearborn Nat. Bank of Chicago, 223 Ill. 507.

It is contended that the complainant cannot maintain its bill for the reason that by certifying the check it incurred an independent liability to pay it. The complainant replies that, where a bank certifies a check at the request of the drawer, before delivery to the payee, the bank thereby does not agree to pay the check but only that the amount thereof will be forthcoming when the check is presented by one lawfully entitled thereto, citing Bathgate v. Exchange Bank of Chula, 199 Mo. App. 583; City of Brunswick v. People’s Sav. Bamk, 194 Mo. App. 360, 190 S. W. 60. In both these cases the right to maintain a bill of inter-pleader under the circumstances is based upon a special provision of the Missouri statute. Illinois has no such statute, and these cases are not applicable.

We hold that complainant is not entitled to maintain its bill of interpleader. If, as we have said, the evidence justified the conclusion that the certification was procured by Adam, the payee, it is immaterial, legally, whether the drawer also requested that it be certified. The act of the payee or holder in requesting certification amounts to an election on his part to relieve the drawer from liability and to accept the bank instead. “Where the holder of a check procures it to be accepted or certified, the drawer and all indorsers are discharged from liability thereon.” Cahill’s St. ch. 98, ¶ 209. In Metropolitan Nat. Bank of Chicago v. Jones, 137 Ill. 634, which was decided before our present Negotiable Instruments Act was enacted, it was held that by obtaining certification of a check the holders discharged the drawers from liability. To the same effect, see Wright v. MacCarty, 92 Ill. App. 120; Sarantopoulus v. Mid-City Trust & Savings Bank, 222 Ill. App. 24. When complainant certified the check, at the request of Adam, it became liable, and therefore under the rule above stated was disqualified from maintaining a bill of interpleader.

Even if the certification was procured by the drawer only, under the present Negotiable Instruments Act of Illinois the bank would have incurred such a liability as would bar its bill of interpleader. Cahill’s' St. ch. 98, ¶ 82, provides that by accepting the instrument the acceptor engages to pay it, according to the tenor of his acceptance. “In legal contemplation and effect, the certified check is a certificate of deposit, and the bank owes the amount called for by such a check to the legal holder thereof, payable on demand.” Wright v. MacCarty, 92 Ill. App. 120. This was the effect of the bank’s, certificate1, and under the statute it thereby agreed to pay the check on demand.

While this precise question has not been decided by the courts of this State, other States having a similar Negotiable Instruments Act have held that where the certification is procured by the drawer, neither the drawer nor indorser of the certified cheek can stop payment. Blake v. Hamilton Dime Sav. Bank Co., 79 Ohio St. 189; Nolan v. Bank of New York Nat. Banking Ass’n, 67 Barb. (N. Y.) 24; Poess v. Twelfth Ward Bank of City of New York, 43 Misc. 45, 86 N. Y. Supp. 857. In Herrmann Furniture & Plumbers’ Cabinet Works v. German Exch. Bank, 87 N. Y. Supp. 462, the drawer of the check had it certified by the bank and delivered to the plaintiff. It was held that, in legal effect, this amounted to payment by the depositor to the payee of so much money and that by this certification the bank lost all power to withhold payment, and for this reason the court denied the bank’s motion for leave to file a bill of interpleader. In Merchants & Planters Bank of Camden v. New First Nat. Bank of Columbus, Ohio, 116 Ark. 1, 170 S. W. 852, where the check was certified at the request of the drawer, it was held that thereby the drawer lost power to stop payment on it and that the certifying bank was liable thereon. This opinion quotes at length from Mr. Justice Swayne in Merchants Nat. Bank of Boston v. State Nat. Bank of Boston, 10 Wall. (U. S.) 604, which is a convincing statement of the importance in business of treating a certified check to' all intents and purposes as if it was money, regardless of who procured the certification. These decisions seem to rest upon sound and necessary principles with which we are in agreement. We hold that in the instant case the certifying bank was liable to pay the check on demand, regardless of who procured the certification.

Prior to the enactment of the Negotiable Instruments Act in 1907, the giving of a check constituted pro temto an assignment of the drawer’s fund and payment could not be stopped on the check in the hands of a bona fide holder. First Nat. Bank of Du Quoin v. Keith, 183 Ill. 475. The Negotiable Instruments Act changed this by providing that a check does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, “and the bank is not liable to the holder unless and until it accepts or certifies the check.” Section 210, Negotiable Instruments Act [Cahill’s St. eh. 98, [[ 210]. This fixes the liability of the instant bank.

From the foregoing considerations it follows that the complainant was not entitled to file a bill of inter-pleader, and the chancellor should have sustained the exceptions to the master’s report of the defendants, Adam and Arlington Heights State Bank, and dismissed the bill.

This conclusion is sufficient to dispose of the cause, but we have further examined the record to ascertain the merits and are of the opinion that the decree was erroneous in awarding any amount of the fund to defendant, William 0. Olsen. When the sale of the premises by Adam to Olsen was consummated Adam made an affidavit to the effect that there were no persons in possession who had or claimed any right, title or interest in the premises except as tenants as shown by an attached list. The tenancies of a Mr. Levy and of a Mr. Williams were listed as month to month tenancies. After the exchange of the deed and the check Olsen discovered that these tenants claimed leases for a longer fixed term. This was reported to Adam, who, after interviewing Levy and Williams to ascertain the character of their claims, reported to Olsen the result and, while not admitting the validity of these claims and asserting his belief that they were baseless, in view of their evident intention to make trouble about delivering possession, offered to cancel the entire sale and take back the property and return to Olsen all of the consideration he had paid and reimburse him for his expenses and attorneys’ fees. Olsen declined this, unless Adam would in addition pay bfm $5,000, which Adam refused to do. Subsequently the alleged right of Levy was adjudicated against him. in the municipal court and the Appellate Court. The rights of Williams after trial, the regularity of which is doubtful, were determined in favor of Williams, who shortly thereafter became insolvent and abandoned the premises, Olsen taking possession.

It is elementary that in an action to recover for fraud and deceit in a sale, the purchaser refusing to rescind the sale, it must be proven that the party making the representations knew they were false when made and made them with the intention to deceive. Cantwell v. Harding, 249 Ill. 354. Adam’s representations as to Levy were not false. Williams ’ claim was very doubtful, and there is no evidence that Adam knowingly made any false statements about it.

We agree with the conclusion of the master that Adam did not perpetrate a fraud upon Olsen.

We also, upon the facts relating to the deposit of the check with the Arlington Heights State Bank, agree with the master in finding that it was a holder of the check in good faith and for a valuable consideration.

There is no basis in the record to warrant an award to Olsen of $5,000, or any other sum, as damages. The master properly found against his daim, and the chancellor was in error in sustaining his exceptions thereto.

We are of the opinion that the merits are with the Arlington Heights State Bank and the decree should have found it entitled to the entire amount of the fund, but for the reasons first above stated we hold that the bill was improperly filed and it should be dismissed. We therefore reverse the decree and remand the cause with directions to dismiss the bill.

Reversed and remmded with directions.

Matchett, P. J., and Johhstoit, J., concur.


text:
    Gregory T. Van Meter, Administrator of the Estate of Carrie Mitchell, Deceased, Appellee, v. Illinois Merchants Trust Company, Appellant.
    Gen. No. 30,488.
    1. Estates of decedents — necessity of administration where funeral and burial costs exceed assets. Where the only estate of a decedent was a hank deposit of $355, and the fair and reasonable cost of the funeral and burial of the deceased was $367, the appointment of an administrator for her estate was wholly unnecessary.
    2. Estates of decedents — sufficiency of affidavits of merits and of set-off in administrator’s action to recover assets of decedent. Where in an action by a public administrator to recover the amount of a deposit of the deceased with the defendant bank, the defendant, by affidavits of merits and of set-off, showed that the reasonable cost of the funeral and burial of the deceased exceeded the amount of such deposit, that the indebtedness to the undertaker for such cost was incurred at the request of the decedent’s sister, her sole resident heir at law, and that at the request of such sister and undertaker defendant had paid over to such undertaker the amount of such deposit, it was error to strike the affidavits aforesaid and to enter judgment for plaintiff.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. F. B. Aleegretti, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1925.
    Reversed and judgment of nil capiat entered.
    Opinion filed March 2, 1926.
    McCulloch & McCulloch, for appellant; Grover C. McLaren and William D. Doggett, of counsel.
    No appearance for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff, as public administrator, sued to recover $355 which Carrie Mitchell, at the time of her death, had on deposit with the defendant bank. The trial court struck the affidavits of merits and of set-off from the files, and defendant electing to stand by them, the court found against it and entered judgment in favor of plaintiff for $355, from which defendant appeals.

The question for determination involves the respective rights of the public administrator and the defendant bank, where the entire estate of deceased is deposited with the bank and is used for the reasonable expenses of the funeral. Plaintiff has filed no brief.

The allegations of the affidavits of merits and of set-off are virtually the same. The affidavit of set-off is as follows:

“Defendant alleges that the body of plaintiff’s intestate, Carrie Mitchell, was, at the instance and request of one Lizzie Mitchell, a sister of said decedent, embalmed and prepared for burial by one Ernest H. Williamson, an undertaker of Chicago, Illinois, who also furnished clothing, casket, grave-box, chapel, hearse, carriages, transportation and other incidentals in and about the funeral and burial of said decedent, and charged therefor the sum of Three Hundred and Sixty-seven Dollars ($367), which was the fair and reasonable price and value of the materials furnished and the services rendered at that time, to wit, on or about May 21, 1924, in said City of Chicago; that the said Ernest H. Williamson and Lizzie Mitchell, upon learning that there was on deposit with defendant, to the account and credit of said Carrie Mitchell in her lifetime, the sum of Three Hundred and Fifty-five Dollars ($355), applied to defendant for payment of the funeral expenses aforesaid, the said Lizzie Mitchell representing1 to defendant that the said decedent was unmarried; that her only heirs at law and next of kin, besides the said Lizzie Mitchell, were three (3) brothers who resided in the State of Arkansas, and were all of age; that decedent left no estate other than said bank deposit; that no cause for administration thereupon existed, and that the bill and claim of the said Ernest H. Williamson for the funeral expenses aforesaid were fair, just and unobjectionable; that, acting upon said representations of said Lizzie Mitchell, sister and heir of said decedent, and it further appearing that said funeral expenses, being fair and reasonable, due and owing, ought to be paid, and that it was the duty and right of defendant under said circumstances to apply the aforesaid sum in its hands belonging to the decedent’s estate to the payment thereof, defendant did pay and expend said sum of Three Hundred and Fifty-five Dollars ($355), on behalf of and for the use and benefit of the estate of said Carrie Mitchell, deceased, and her administrator or personal representative, to the said Ernest H. Williamson, on account of said funeral expenses, which constitute first-class and prior claims and demands against the plaintiff, according to law.
“Wherefore, defendant says that it is not indebted to the plaintiff herein in any sum of money whatsoever, but that said estate, and plaintiff as administrator thereof, is indebted to this defendant in the sum of Three Hundred and Fifty-five Dollars ($355), for moneys paid and expended for the use and benefit of plaintiff, which it offers to set off in full, as against any1 claim of the plaintiff in this case.
“Defendant further claims for the sum of Three Hundred and Sixty-seven ($367) Dollars, due to it from the plaintiff herein, as administrator of the estate of Carrie Mitchell, deceased, by virtue of and arising out of the assignment to this defendant of the certain claim against plaintiff of Ernest H. Williamson, undertaker, which was due and owing from plaintiff herein to said Ernest H. Williamson, for materials furnished and services rendered in the matter of the funeral and burial of said Carrie Mitchell, deceased, at Chicago, Illinois, on or about the 21st day of May, 1924, which said sum was and is the usual, fair and reasonable value and charge, at that time and place, for such materials furnished and services rendered; which said claim was duly assigned hy said Ernest H. Williamson to this defendant, for a valuable consideration, on, to wit, the 25th day of June, 1924.
“Wherefore, defendant says that it is not indebted to plaintiff in any sum of money whatsoever, but that the plaintiff is indebted to it in the sum of Three Hundred and Sixty-seven Dollars ($367), by virtue of the aforesaid assignment, which said sum it offers to set off against any claim made by the plaintiff herein.”

This presents the question, where no rights of heirs and creditors are adversely involved and the sole estate consists of an amount not in excess of the rearsonable funeral expenses, which right is paramount— that of the public administrator or the right of the deceased to have the money used for a fitting burial?

The appointment of an administrator is not necessary in all cases, and if unnecessary he will not be entitled, as a matter of right, to possession of the estate. People v. Abbott, 105 Ill. 588.

“The purpose and object of requiring administration to be had upon the estates of persons dying intestate is to provide for and insure, first, the conservation of all the personal assets of the estate, including the collection of all debts due the decedent; second, the payment of all the debts of the decedent; and third, the proper distribution of the residue among the heirs-at-law, according to the Statute of Descent. Administration is not necessary in every estate, and the statute! applies only to those cases where it is necessary. No administration is necessary if the property of the estate is of less value than the cost of administration. ” Cotterell v. Coen, 246 Ill. 410, 413.

As the affidavit of| merits alleged that the fair and reasonable cost of the funeral and burial of the deceased was $367, while her only estate was the deposit of $355, the appointment of an administrator was wholly unnecessary. It is not indispensable that every estate shall be administered merely for the sake of administration.

The right of decedent to proper and fitting burial was paramount. There are aj great many authorities holding that there is a general right of every one to have a decent burial after death, and whatever estate the deceased may leave can be used for the reasonable and necessary expenses therefor. Burial usually takes place before the issuance of letters of administration, and the services of an undertaker to conduct a' funeral can be legally contracted for before the issuance of letters of administration. Under certain circumstances even a stranger may contract for such funeral services and be allowed such expenses, if reasonable. Colsen v. Colsen, 127 Ill. App. 84. Under our statute, funeral expenses are placed in the first class of demands against the estate, and are mentioned even before costs of administration. Cahill’s St. ch. 3, ¶ 71. In Patterson v. Patterson, 59 N. Y. 574, with an extensive citation of decided cases, it was held that funeral expenses have priority even in the absence of any statutory provision.

Under the circumstances set forth in the affidavits of merits and of set-off, the fund of deceased on deposit was properly used for funeral expenses, as requested by her sister, and the public administrator was not entitled to it.

It is stated in defendant’s brief that it is a long-established and well-known custom among Chicago banks generally voluntarily to pay over, without administration, small balances to either the undertaker or heirs of depositors reported dead upon being furnished with proper affidavit, inheritance tax release, receipted funeral bills, and an undertaker’s assignment. Such a custom, especially where the heirs consent, would seem to be desirable and commendable and should not be disturbed by officious intermeddling for the sake of possible administration fees. It has been held that such fees, where needlessly made, cannot be recovered as a debt due from the estate. People v. Abbott, 105 Ill. 588.

The order of the trial court striking the affidavits of merits and of set-off was improper, and the judgment must be reversed. As plaintiff is not entitled to recover, the cause will not be remanded, a£d judgment of nil capiat will be entered in this court. _ Defendant does not ask us to enter any judgment oh its set-off.

Reversed and judgment of nil capiat entered.

Hatchett, P. J., and Johnston, J., concur.


author: Mr. Justice, McSurely

text:
    Abeles & Taussig Lumber and Tie Company, Appellant, v. Northwest Side Lumber Company, Appellee.
    Gen. No. 30,516.
    1. Contracts — burden of proof of compliance with contract under allegation of performance. A party suing on a contract and alleging performance thereof can recover only on proof of performance in strict accordance with its terms.
    2. Sales — burden of proof as to conformity with contract specifications in action for damages from rejection by buyer. In an action to recover storage, demurrage, switching and unloading charges on a carload of lumber alleged to "have been sold and delivered by plaintiff to defendant, but rejected by the latter because not of the grade ordered, a judgment for defendant was proper in the absence of proof that the lumber was of the kind called for by the contract.
    3. Sales — sufficiency of evidence as to conformity with contract specifications in action for damages from rejection by buyer. No proof that lumber rejected by a purchaser as defective was of the kind called for by the contract was supplied by testimony of a witness who stated that he examined some lumber pointed out by some man not connected with either of the parties, but that he did not know whether this was the lumber tendered by plaintiff to defendant.

      4. Frauds, statute of — sufficiency of memorandum of sale of carload of lumber negotiated through broker. Where a shipper of several cars of lumber sent to brokers at their destination transit lists covering the same, and such brokers negotiated a sale of one of such cars, delivering to the shipper and to such purchaser identical memoranda covering the transaction, and such purchaser, while subsequently rejecting the lumber because not up to specifications, did not disavow the contract but relied upon nonperformance, the transaction was not invalid under the statute of frauds, although the lumber exceeded $500 in value, the telegrams and letter of the purchaser in rejecting the shipment constituting a sufficient memorandum thereunder.
    Appeal by plaintiff from the Municipal Court of Chicago; the Hon. Albert B. George, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed March 2, 1926.
    Rehearing denied March 15, 1926.
    Herbert A. Schryver, for appellant.
    Bernstein, Zolla & Bernstein, for appellee; Louis M. Kaplan, of counsel.
   Mr. Justice, McSurely

delivered the opinion of the court.

Plaintiff brought suit to recover the contract price of a carload of lumber sold and delivered to defendant but rejected, obliging plaintiff to store the lumber and pay storage, demurrage, switching and unloading charges, in a total damage of $810.95. Upon trial by the court the judgment was against the plaintiff and it appeals.

Among other defenses the defendant pleaded that the lumber tendered by the plaintiff to it was defective and not in accordance with the agreement. The burden was on plaintiff to prove that the lumber tendered was in compliance with the terms of the contract. It is the well-settled rule that a party suing on a contract and alleging performance can recover only by proving performance in strict accordance with the terms. 9 Cyc. 601; Turner v. Osgood Art Colortype Co., 223 Ill. 629.

Only one witness undertook to testify for the plaintiff as to the condition of any lumber, but he examined only some lumber pointed out to him by some man not connected with the parties and did not know whether or not this was the lumber tendered by plaintiff to the defendant. In the absence of any proof that the lumber was of the kind called for by the contract, plaintiff cannot recover, and the finding for the defendant was proper and the judgment thereon must be affirmed.

This seems to be conceded by the plaintiff, which does not controvert the position of the defendant in this regard, but asserts that the trial court was in error in the reasons given for the finding. If the judgment of the trial court is right on- the record, it must be affirmed regardless of the soundness of the reasons given for its conclusion. Mulvikill v. Shaffer, 297 Ill. 549.

In the bill of exceptions it is stated that the finding of the court for the defendant was on the ground “that there was no compliance with section 4 of the Uniform Sales Act of Illinois,” and all of the brief and argument of the plaintiff and a considerable portion of that of defendant are devoted to the question touching this section of the statute. This section provides that “a contract to sell or a sale of any goods * * * of the value of five hundred dollars or upwards shall not be enforceable by action unless * * * some note or memorandum in writing of the contract of sale be signed by the party to be charged or his agent in that behalf.” Cahill’s St. ch. 121a, f 7. This sale was for over $500 and the defendant contended upon the trial that it was within this statute, as no memorandum thereof was signed by it or its agent.

We are asked to give an opinion upon this, as it is important that the law applicable to such circumstances be settled in view of the large number of similar transactions of daily occurrence. We are not obliged to do this for two reasons: (1) what we might say would be obiter dictum in this case; and (2) our conclusion would not establish the law in any other case. However, upon the facts present we are inclined to the opinion that this case is not within the statute in question.

Plaintiff was in the lumber business in St. Louis and sent a transit list of carloads of lumber to the Botts-DeSale Lumber Company of Chicago offering these for sale. This Chicago company is a lumber brokerage firm on commission, getting lumber to sell and finding purchasers. The defendant, doing business in Chicago, ordered one car through these brokers and thereupon the brokers sent a memorandum of sale to the seller, plaintiff, and to the buyer, defendant. The memoranda were identical and contained full particulars and details as to prices, quality, etc., and a request that if for any reason this order could not be entered, to wire the broker immediately. These memoranda were signed by the broker. Plaintiff sent to the defendant an invoice of the car, containing full particulars. Defendant received the lumber and wired plaintiff to the effect that the car was refused because the lumber was not up to grade, and afterwards wrote a letter to plaintiff amplifying this reason and requesting the plaintiff to make disposition of the car, which was subsequently done by the plaintiff. Other correspondence followed, the position of the defendant being, as stated in one of the letters, “you are not going to force on us any lumber that is not up to grade. ’ ’

In two comparatively recent cases in Pennsylvania it was held that middlemen are' not the agents of the buyers in the sense that a memorandum signed by the brokers complies with the provisions of the statute requiring a memorandum in writing of the contract to be signed “by the party to be charged or his agent in that behalf.” Dodd v. Stewart, 276 Pa. 225, 120 Atl. 121; Rasche & Co. v. Campbell, 276 Pa. 268, 120 Atl. 132. There are also decisions to the contrary. In Hobart v. Lubarsky, 215 Mass. 528, it was held that, where a trade has been made by the acceptance of an offer, the broker is authorized by force of his employment as broker to write out and sign the bought and sold notes necessary to make the trade a binding contract under the statute of frauds. See also- cases to the same effect in 4 R. C. L., sec. 10, and 9 C. J., p. 518. In Saladin v. Mitchell, 45 Ill. 79, it is held that under some circumstances the middleman is treated as the agent of both parties, as where he is employed to buy and sell goods and it is the custom to give to the buyer and the seller, respectively, a note of the sale in his own name as agent of each. To the same effect are Murray v. Doud & Co., 167 Ill. 368; Eau Claire Canning Co. v. Western Brokerage Co., 213 Ill. 561.

In the case before us the defendant, which is the party sought to be charged, both by telegram and letter assumed and acknowledged the validity of the contract as written, but asserted] nonperformance by the plaintiff. If defendant had denied that it had ever bought the lumber or claimed that plaintiff’s or the broker’s written memorandum of the sale was incorrect, no contract could have been proven; but in the light of all the circumstances it would seem that defendant’s, written recognition of the terms of a contract was a sufficient memorandum. This is in accordance with the decisions in Lawley & Son Corp. v. Buff, 230 Mass. 21, and Schmoll Fils & Co. v. Wheeler, 242 Mass. 464.

We do not construe Stein v. McKinney, 313 Ill. 84, as in point. There the question involved was the authority of an agent to sign a contract for the sale of real estate, which contract was in its terms incomplete.

In Chicago Metal Refining Co. v. Jerome Trading Co., 218 Ill. App. 333, the decision turned on whether under the law the defendant had accepted the goods, the original contract being wholly verbal. In Western Metals Co. v. Hartman Ingot Metal Co., 303 Ill. 479, the contract was oral and there was no writing stating any of its terms.

Defendant by its wire and letters based its. refusal to accept the lumber upon the terms and conditions of the written memorandum of sale. It would be incongruous to permit it to invoke the conditions of this memorandum as grounds for its refusal and at the same time to assert the invalidity of such conditions.

The determination of the question is not. free from difficulty, but upon the record before us we are strongly inclined to the opinion that the contract in question is without the statute of frauds. However, we rest our conclusion upon the ground first stated, and the judgment is affirmed.

Affirmed.

Hatchett, P. J., and Johnston, J., concur.