text:
    O. B. Avery Company for the use of Allis-Chalmers Manufacturing Company, Appellant, v. Highway Commissioner of Road District No. 8-1, Williamson County, Appellee.

      Opinion filed June 8, 1935.
    Rehearing denied September 5, 1935.
    Denison & Spiller, of Marion, for appellant.
    J. Roy Browning, of Chicago, and Charles C. Murrah, of Herrin, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

On the 4th day of March, 193Ó, the O. B. Avery Company, a corporation, one of the appellants herein, sold a tractor to the highway commissioner of the town of Blairsville, Williamson county. After the allowance of credit for certain machinery traded in by the township, the purchase price was $3,500. The township did not have available cash to meet the payment and the proper township officers issued two tax anticipation warrants of $1,750 each, to draw interest at six per cent. Both warrants were issued on March 8, 1930, one due on May 1, 1930, and the other on October 10th following. The tractor had been purchased by the Avery Company from the Allis-Chalmers Manufacturing Company and Avery Company gave its note for the purchase price and a conditional sales contract was executed. Soon after the issuance and delivery of the warrants to the Avery Company, it assigned the warrants to Allis-Chalmers for a valuable consideration. This suit is in the name of the Avery Company for the use of Allis-Chalmers Company but the latter company is the real party interested.

Subsequent to the issuance of the warrants and before this suit was started, Williamson county abandoned township organization and adopted county organization. Boad District No. 8-1 was formed, identical in territorial area with the town of Blairsville.

O. B. Avery Company for the use of Allis-Chalmers Manufacturing Company instituted suit on the tax warrant due May 1, 1930, and made highway commissioner of Boad District No. 8-1 in Williamson county defendant. The two companies will be referred to as plaintiffs and the highway commissioner of the road district as defendant.

This case was before this court at a previous term and a judgment in favor of the plaintiff was reversed and cause remanded. 266 Ill. App. 627 (Abst.). The reversal was based.upon the insufficiency of plaintiff’s declaration to state a cause of action. The declaration was amended and upon a trial before the court without, a jury, a judgment was entered in favor of defendant.

The declaration upon which the instant case was tried contained a special count and the common counts. The special count alleged facts showing a compliance with the various statutory steps leading to the issuance of a tax warrant, the levy and collection of the taxes and the payment of the same to the treasurer of the road and bridge fund. It also alleged the assignment of the tax warrants to the Allis-Chalmers Manufacturing Company. It contained the allegation that the treasurer of the road and bridge fund deposited the taxes collected in the Cambria State Bank and wrongfully allowed it to remain in the bank when the bank was in a failing condition, all of which was known to the treasurer of the fund, or by the exercise of ordinary care should have been known to him; that the said money was permitted to remain on deposit in said bank until the bank became insolvent and closed by order of- the State auditor; that on April 9, 1930, the highway commissioner and treasurer undertook to pay the anticipation warrants and issued a check drawn on the Cambria Bank, payable to the Avery Company. The Cambria Bank closed on April 14th without payment of the said check and that by reason thereof, the township became liable to Allis-Chalmers Company for money had and received. The defendant’s pleading consists of a general issue plea and a plea of payment. The greater part of the facts are stipulated.

Defendant contends that the tax warrant sued upon is not a promise to pay but is an order to pay the amount specified from taxes already levied, the payment to be made when the taxes were collected; that it was in effect' an assignment of a certain amount from a specified fund to be paid when collected and that the only obligation of the road district was to see that the taxes were set apart for the payment of the warrants and properly applied. This principle has been recognized in numerous decisions of the courts of this State. City of Springfield v. Edwards, 84 Ill. 626; Fuller v. Heath, 89 Ill. 296; Booth v. Opel, 244 Ill. 317; Randolph v. Town of Bernadotte, 243 Ill. App. 581. Plaintiff recognizes the rule above stated as being the law but seeks to avoid it by application of the rule announced in Conway v. City of Chicago, 237 Ill. 128, and Harrold v. City of East St. Louis, 197 Ill. App. 121. In each of these cases, the tax money against which the tax warrant was issued had been expended by the municipality in its general corporate affairs. The court there held that an action in assumpsit would be the remedy.

The evidence shows that the highway commissioner made a levy for road and bridge purposes for the year 1929. This tax was to be collected in 1930 and when collected, constituted the fund out of which the two warrants were to be paid. It is stipulated that the aggregate of the two warrants, and all other warrants drawn against the same tax, did not exceed 75 per cent of the total levy. The amount of the other warrants, if any were issued, is not shown by the evidence. The treasurer of the road and bridge fund received $7,686.20 from said levy. The warrant that was due October 10, 1930, was paid on or about October 1, 1930, from said fund, the total amount due being $1,791.99. That sum deducted from the total received by the treasurer leaves a balance in the fund of $5,894.21. Nothing is shown as to what became of the balance of that fund. As far as this record shows, the whole of that balance was available for the payment of the warrant sued upon. On April 8, 1930, the treasurer had a part of said balance on deposit to his account as treasurer in the Cambria State Bank. On that date, he issued two checks against said fund, both payable to the Avery Company, one for $1,734, the amount then due on the warrant sued upon, the other for $83.30 to pay an account Avery Company had against defendant. It is stipulated that on the date of the issuance of these checks, there was sufficient money in the treasurer’s account in the Cambria Bank to pay both checks in full. It does not appear what balance would be left in the road and bridge fund after deducting the amount of the two checks. Deducting the amount of the two checks issued on April 8th and the amount paid on the warrant due in October from the total tax received by the treasurer, it appears that a balance of $4,076.91 remained. The record is silent as to what was done with that balance. The amount on deposit to the treasurer’s account in the Cambria Bank became involved in a bank failure as hereinafter referred to but the balance of $4,076.91 does not appear to have been on deposit in the bank at the time of its failure. If that balance still remains in the hands of the treasurer of the road district or if the same has been expended by the road authorities for other road purposes, then, in either event, the road district would be liable in this action for money had and received. Conway v. City of Chicago, supra; Harrold v. City of East St. Louis, supra.

In the absence of evidence to the contrary, we must assume that the road district officials did their duty and that the balance of the tax fund was set apart and retained for the purpose of paying the warrant in question if its defense of payment is not sustained.

The defense of payment presents two questions: First, Do the admitted facts as a matter of law constitute payment to Avery Company? And second, Did the defendant have notice of the assignment of the warrant by Avery Company to Allis-Chalmers Company so that payment to Avery Company would not be binding on Allis-Chalmers Company?

The evidence shows that soon after the issuance and delivery of the anticipation warrants to Avery Company, it assigned and delivered the same to the Allis-Chalmers Company for a valuable consideration. On April 5,1930, the road commissioner wired Avery Company at its office in St. Louis that the road district wished to pay on the warrants and to send a representative. Thereafter on April 8, H. L. Lippert, an agent of Avery Company, called on the road district officials. The treasurer of the road and bridge fund drew a check payable to Avery Company for $1,734, which was the amount unpaid on the anticipation warrant due May 1 and delivered that check to Lippert together with another check for $83.30 to cover an item which is not material here. The same day Lippert mailed the checks to Avery Company and they were received by it in St. Louis on April 10. The Avery Company indorsed the two checks and delivered them to the Mercantile-Commerce Bank and Trust Company in St. Louis and the account of the Avery Company was credited with the amount of the two checks. On or about the 11th day of April, the Mercantile Bank sent the checks by mail direct to the Cambria Bank. Accompanying the checks were instructions from the Mercantile Bank tb the Cambria Bank, the material part of which is as follows: “Please remit us in payment in St. Louis, Chicago, or New York exchange (St. Louis preferred) or in accordance with special instructions in this letter.

“We enclose for collection and remittance cash items as listed.

“If not paid upon presentation advise us at once by mail stating the reason for refusal.

“Items listed are cash (not collections), and must be handled strictly in accordance with instructions.

“If not paid on presentation, wire reason. Do not remit or advise credit for this item unless actually paid. ’ ’

The checks with the instructions were received by the Cambria Bank April 12th. The Cambria Bank stamped the checks “paid,” charged them to the account of the treasurer of the road and bridge fund and afterwards returned the checks to the treasurer. On the same day, the Cambria Bank issued and mailed to the Mercantile Bank, its draft for the amount of the two checks. The draft waá drawn on the First National Bank of St.. Louis. Upon receipt of the draft, the Mercantile Bank indorsed and presented the draft to the First National Bank for payment. There was not sufficient cash credit in the account of the Cambria Bank with the First National Bank to pay the draft but credit papers had been received which had not cleared at the time of the presentation of the draft. The First National Bank marked the draft “Uncollectible Funds.” On the 15th day of April, the draft was again presented but was not paid because the Cambria Bank had been closed on April 14th.

As a general proposition of law, it may be stated that where a bank receives a check drawn on a checking account of the drawer in that bank, stamps it paid, charges it to the account of the drawer and credits the payee with the amount that the same is regarded as a payment. American Exchange Nat. Bank v. Gregg, 138 Ill. 596. Plaintiffs recognize this rule but contend that they have proved the existence of a custom which takes this case out of the general rule. Plaintiffs introduced evidence to prove that in St. Louis and in the southern part of this State, the usual banking practice required a bank receiving a check drawn on a distant bank to send that check direct to the bank it was drawn on for payment and such drawee bank would then issue its draft on its correspondent bank and deliver the same in payment of the check. It is plaintiff’s contention that the treasurer of the road and bridge fund issued and delivered the check to Lippert for the Avery Company charged with the knowledge of such a custom and that under such a custom, the check would not be considered paid until the draft was presented to the bank upon which it was drawn, and cites cases of other jurisdictions in support thereof.

The instructions directed the Cambria Bank to handle the checks a¡s cash and not as items for collection. If-.they were not paid on presentation, the Cambria Bank was to wire the Mercantile Bank the reason for nonpayment. The instructions further directed that the Cambria Bank should not remit unless the checks were actually paid. The directions were that if payment was made to the Cambria Bank, it should remit to the Mercantile Bank by St. Louis, Chicago or New York exchange (St. Louis preferred). The directions by the Mercantile Bank to the Cambria Bank that there should be no remittance unless the checks were “actually paid” could mean but one thing, that is that the Cambria Bank should take no action in remitting until the debt evidenced by the check was paid, which would mean that the liability of the treasurer as maker had been discharged and the relationship of debtor and creditor between the maker of the check and the holder had been terminated. What the Cambria Bank did was in accordance, for it stamped the checks paid, charged it to the account of the maker and returned the checks to him. The draft that was issued by the Cambria Bank was, upon nonpayment, returned to Avery Company and it has since retained it. Even if such a custom was established, it would not prevent the parties from presenting and paying the check in a way contrary to the custom, Deshler v. Beers, 32 Ill. 368, and in view of the explicit instructions sent by the Mercantile Bank with the checks to the Cambria Bank, we are of the opinion that the rights of the parties in this transaction are controlled by the instructions and not by the custom. By the steps that were taken, the money which the treasurer of the road district had on deposit in the Cambria Bank was withdrawn from his account and control and passed into the hands of the Cambria Bank to be remitted by it to the Mercantile Bank pursuant to the instructions. The act of the Cambria Bank in making the remittance was under the directions of the Mercantile Bank and the failure of the Cambria Bank to remit by draft that would be paid on presentment was not the act of the treasurer of the road district and the road district is not liable therefore.

The remaining question is, Did the road district have notice of the assignment of the tax warrant to Allis-Chalmers Í The only evidence tending to prove notice is in the testimony of Lippert. He testified that he told the road commissioner that the warrants had been assigned. The road commissioner did not testify but the treasurer of the road and bridge fund stated that he did not have notice and he is the officer charged with issuing the check and the one in control of the fund. It does not appear that the commissioner communicated any knowledge he had of the assignment to the treasurer. It is not claimed that Allis-Chalmers Company gave notice of its rights to any official of the road district. When the warrant that was due in October was paid, which was subsequent to the transaction in question, the check of the district was made payable to Avery Company and no question was raised. The question of notice was a question of fact and the evidence is in conflict. We do not feel that we would be warranted in disturbing the finding of the trial court.

Finding no reversible error, the judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Stone

license: Public Domain

text:
    City of Greenville, Appellant, v. John H. Nowlan, Appellee.

      Opinion filed June 8, 1935.
    Rehearing denied September 5, 1935.
    Stanford S. Meyer, of Greenville, for appellant.
    Chas. E. Davidson, of Greenville, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This is an appeal from a judgment of the county court of Bond county quashing a complaint and warrant against appellee for violation of section 330 of Article 2 of Chapter 13 of the Revised Ordinances of the City of Greenville — said section having to do with unmuzzled dogs running at large. Sections 329 and 330 of said ordinances read as follows:

“Dogs Running at Large To Be Destroyed — Danger of Hydrophobia — Whenever the Mayor shall determine that danger from hydrophobia exists with said City, he shall by proclamation or notice published in one or more newspapers of the City, notify and require all persons owning or keeping dogs to confine the same or securely muzzle them, with good and sufficient muzzles, for such time as may be designated in the proclamation, or until otherwise ordered by the City Council.”

“Dogs Running at Large To Be Destroyed — Penalty to Keeper or Owner — All unmuzzled dogs found running at large in said City during the time designated in such proclamation or notice, whether owned or kept within or without the City, shall be destroyed by the City Marshal, or any person employed by him for such purpose, or by any policeman; and the owner or keeper of any dog who shall permit the same to run at large unmuzzled, during the time designated in such proclamation or notice shall be subject to a penalty of not less than Five Dollars nor more than Twenty-five Dollars.”

In pursuance of those sections the Mayor of the City of Greenville, on July 10, 1934, caused to be published in the Greenville Advocate, a newspaper of general circulation in the City of Greenville, a notice which is in words and figures as follows:

“Notice to Dog Owners
• “Owing to the danger of rabies during the hot weather, all dogs running at large will be caught and destroyed. All dog owners are ordered to keep their pets muzzled or confined. This order is effective at once.
“Lee Loyd, Mayor.”

On July 17,1934, a complaint and warrant was issued out of a justice court for the arrest of appellee, John H. Nowlan for the violation of the foregoing ordinance in allowing his dog to run at large unmuzzled. After numerous preliminaries, a trial was had resulting in a verdict of guilty and a fine of $5 and costs assessed against appellee. A form of judgment with which neither party seemed to be satisfied was entered upon this verdict. Appellee appealed therefrom to the county court of Bond county. In the justice court appellee made a motion to quash said complaint and warrant after he had entered his plea of not guilty. This motion was overruled and renewed in the county court. It attacks the validity of the ordinance and the notice of the mayor in pursuance thereof. Appellant moved to dismiss the appeal in the county court on the ground that there was no judgment in the justice court from which appellee could appeal.

We are somewhat at loss to understand how appellant expected to collect its judgment if the judgment is such an one as may not be appealed from. Before appellant could collect the fine it would have to have a final judgment therefor and such final judgment would be appealable.

Complaint is made that appellee entered his motion to quash in the county court without first withdrawing his plea of not guilty. The trial in the county court was de novo and the appellee had a right to enter any motion there or even plead guilty if he desired without regard to what happened in the justice court. The motion he did make went to the jurisdiction of the court and that question may be raised at any time.

It is claimed by appellant that the court had no authority to declare the ordinance in question void because said ordinance had not been introduced in evidence. Apparently the parties have overlooked the Act of 1929, which declares that courts shall take judicial notice of all such ordinances as are here involved. Cahill’s St. ch. 51, If 57 (ch. 51, sec. 48a, p. 2, SmithHurd’s Revised Statutes). At any rate courts always have authority to determine whether a valid complaint and warrant exist.

This brings us to the question of the validity of that part of section 330 upon which the case is based. Appellee was fined for violation of the following:

“And the owner or keeper of any dog who shall permit the same to run at large unmuzzled during the time designated in such proclamation or notice shall be subject to a penalty of not less than Five Dollars nor more than Twenty-five Dollars.”

This part of the section in question is perfectly valid and is easily separable from that part of the section with reference to shooting dogs running at large unmuzzled. Because a part of a law is invalid it does not follow that all parts thereof are invalid unless the provisions are so connected as to depend upon each other. “The valid and invalid provisions may even be contained in the same sentence and yet be perfectly distinct and separable so that the former may stand though the latter fall. If, when the unconstitutional portion is stricken out, that which remains is complete in itself and capable of being executed wholly independently of that which is rejected, it must be sustained.” Weksler v. Collins, 317 Ill. 132, 146; People v. Long, 297 Ill. 194; Shellabarger Elevator Co. v. Illinois Cent. R. Co., 298 Ill. 333; People v. O’Brien, 273 Ill. 485; People v. Knopf, 183 Ill. 410.

That part of the motion to quash which is addressed to the unconstitutionality of sec. 330, therefore, is not well taken. There is, however, a serious defect in this proceeding. The notice given by the mayor is vague and indefinite. The ordinance which provides for such notice provides that the mayor shall by proclamation notify and require all persons keeping dogs to confine or muzzle them for such time as may be designated in the proclamation or until otherwise ordered by the city council. The notice in question places neither limitation. It merely states that “all dog owners are ordered to keep their pets muzzled or confined.” We are unable to tell from this notice whether appellee’s dog ran at large during the duration of the time covered by the notice. The notice fixes no time. It may be for a day or it may be perpetual. On its face it appears as a permanent policy. Such notice would be beyond the power of the mayor lawfully to make. A notice prescribed by section 329 was a condition precedent to enforcing section 330. As the notice was insufficient for the reasons indicated, appellant had no authority to- proceed against appellee as it did.

The complaint and warrant were properly quashed by the trial court and its judgment in that regard is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Fulton

text:
    E. V. Foltz et al., Appellees, v. F. M. Hutson et al., Defendants. George F. Scott, Appellant.
    Gen. No. 8,875.

      Opinion filed July 17, 1935.
    Van Sellar & McClain, of Paris, and Acton, Acton & Baldwin, of Danville, for appellant; W. M. Acton, of counsel.
    Craig & Craig, of Danville, Wilber H. Hickman, of Paris, Robert M. Werden, and Fred L. Wham, Jr., of Centralia, for appellees.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.

This was an action of debt brought by appellees as trustees of schools against the appellant George F. Scott et al., upon the bond of a school township treasurer for an alleged shortage. The defendants in the suit were F. M. Hutson, the school treasurer, Rossie Helt and the appellant George F. Scott, his bondsmen. Helt was dismissed from the case under a plea of discharge in bankruptcy and judgment was entered against F. M. Hutson and the appellant for $2,201.08 and costs of suit, and the appellant has perfected his appeal to this court to review said judgment.

The case was tried upon an amended declaration of one count, which averred the execution of the school treasurer’s bond, under date of February 4, 1932; that the bond was in the form prescribed by statute and conditioned that the township treasurer of schools should deliver to his successor all moneys, etc., which should come into his hands or control as such township treasurer, from the date of his bond up to the time that his successor shall have qualified. The breach assigned was that he had not delivered all moneys and securities which came into his hands or control as such treasurer after the 4th day of February, 1932; that at the time his successor in office had duly qualified the said treasurer had in his possession the sum of $2,016.84, which sum he wholly refused and failed to turn over to his successor and the ad damnum named in his declaration was $2,016.84.

The appellant filed a plea of general issue and seven special pleas as follows: (a) Plea of statute of limitations. (b) That the default, if any, sued for accrued before the execution of the bond by the appellant and that appellant did not incur any liability for any act of the treasurer which occurred before the execution of the bond, (c) That at the time of the execution of the bond sued on there was a shortage in the accounts of the treasurer and the appellant and the other signers of said bond did not obligate themselves to pay any portion of said shortage that occurred before the execution of said bond, (d) Plea of performance, (e) Plea of non damnificatus. (f) That the treasurer had not failed to pay over any moneys or securities to his successor that he had received as such treasurer since February 4, 1932, and that he did not, on July 1, 1932, have in his possession the said sum of money which had come into his hands and control as such treasurer after February 4, 1932. (g) Plea of non est factum.

The court sustained a demurrer to the five special pleas above numbered a, b, c, d, and e, and it was agreed at the trial that issue was joined on the sixth and seventh special pleas, just the same as though formal replication had been filed thereto. By agreement of parties, a jury was waived and the cause tried before the court.

F. M. Hutson was duly elected township treasurer on July 1,1930, and gave bond as provided by law. On February 4, 1932, he gave a new bond (being the bond involved in this case) with the appellant George F. Scott as one of the sureties. On July 1, 1932, a new treasurer was elected to succeed F. M. Hutson. After the new treasurer had qualified, by giving bond as required by law, F. M. Hutson failed to turn over to him, as his successor, the funds and moneys which had come into his hands as such township treasurer. The fact that the treasurer was short is not seriously disputed, the contention between the parties being as to whether appellant was bound for any shortage occurring prior to February 4,1932. This suit was brought because of the inability of Hutson to pay up in full. The treasurer’s account books for the years June 30, 1931 and June 30,1932, and the trustee’s annual report, prepared by the treasurer, for the year ending June 30, 1932, were introduced in evidence on the trial. These were the only records kept and reports made by the treasurer F. M. Hutson and they show the funds and money in his hands on the respective dates. These books show that on June 30, 1931, the treasurer reported he had a cash balance on hand of $3,116.90. These books and records also show that for the year ending June 30, 1932, the treasurer had in his hands a cash balance of school funds totaling $2,098.33. This same amount is shown to be the cash balance by the trustees ’ annual report. After June 30, 1932, Hutson paid over to his successor $81.40.

The appellant contends that the books show no shortage in the amount received by the treasurer after February 4,1932, and that the treasurer had accounted for all money which had actually come into his hands since the date of the giving of the bond, and that the defalcation, if any, had been committed by the said F. M. Hutson prior to the giving of the bond sued upon.

The first error assigned, by appellant, for reversal is that since the ad damnum in the declaration is only $2,016.84 and the judgment is $2,210.08; that therefore the judgment is erroneous, relying upon the principal of law stated in Burns v. Kaylor, 264 Ill. App. 469, as follows: “It is reversible error to enter a judgment for a greater sum than the Plaintiff claims in his declaration.” But the appellees point out that no such question was raised in the trial court and therefore cannot be taken advantage of on appeal and a search of the record does not disclose that this objection was raised at any time before the trial court. We, therefore, believe that such error, if any, should have been urged at the time of entering judgment, thus giving the appellees an opportunity to amend. Grand Lodge v. Bagley, 164 Ill. 340. However, appellees have filed a motion in this court for leave to amend said declaration as to said ad damnum in accordance with the provisions in section 92 (la) of the Civil Practice Act of 1934, Cahill’s St. ch. 110, if 220, which amendment has been permitted by this court.

Secondly, the appellant urges that the court erred in refusing the motion of the appellant to require the appellees to bring in the former bondsmen of the same school treasurer because the major part of the loss occurred during the existence of the former bond, and the appellees should have been required to bring them in as parties defendant to this suit. This suit was an action in debt on an official bond, and all of the persons who were parties to the contract, involved herein, that is, the principal and all of his sureties, were made parties hereto. Cahill’s St. ch. 103, H 13 (section 13, ch. 103, Smith-Hurd Ill. Devised Statutes, 1933) provides that whenever the condition of the bond of any public officer shall be violated, suit may be instituted and prosecuted against such officer and any or all of the sureties, or against one or more of them, jointly and severally, without first establishing the liability of the principal, by obtaining judgment against him alone. In the case of People v. Jamison, 157 Ill. App. 546, the court said: “A suit on an official bond may be maintained against any one or more of the parties executing the same.” We are of the opinion that the court correctly denied such motion.

The third contention of the appellant is that the court erred in sustaining the demurrer to the second and third special pleas which set up in substance that the loss had occurred during the existence of a previous bond. Our courts have held that where a township treasurer is elected his own successor and gives a new bond, the sureties on such bond are liable thereon for any amount which appears to have been in the hands of such officer belonging to the school district at the end of the preceding term. People v. Birket, 342 Ill. 333; Morley v. Town of Metamora, 78 Ill. 394; Trustees of Schools v. Cowden, 240 Ill. 39. In addition to the cases cited there are many decisions in this State which hold that sureties on a bond of township treasurer are liable, not only for the funds, that actually come into his hands after the date of the bond but also for funds which he held in his possession from a previous term and although this bond was given in the middle of the term of the township treasurer we believe the same law applies, and therefore demurrers to such pleas were properly sustained.

The fourth contention of the appellant was that the court erred in sustaining the objection of appellees to a question asked of a witness as to the funds on hand on June 30, 1931. This was an attempt to vary the books and official records of the treasurer by parol testimony which was clearly incompetent.

We are of the opinion that the errors assigned and argued by the appellant are without substantial merit and that the judgment entered by the trial court in this cause should be affirmed.

Affirmed.


text:
    The People of the State of Illinois ex rel. Edward J. Barrett v. Ridgely-Farmers State Bank of Springfield. In re Kate L. Herndon, Appellee, v. William L. O’Connell, Appellant.
    Gen. No. 8,901.

      Opinion filed July 17, 1935.
    A. M. Fitzgerald, H. C. Moore and W. P. Egberts, all of Springfield, for appellant.
    Gillespie, Burke & Gillespie, of Springfield, for appellee.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.

In the suit of Edward J. Barrett, Auditor of Public Accounts, v. Ridgely-Farmers State Bank of Springfield, in the circuit court of Sangamon county for the liquidation of said bank, the appellee filed an intervening petition asking to be adjudged a preferred claimant in the sum of $5,162.52. The receiver in charge of the bank answered the petition denying that she was entitled to any judgment, whatever, against him.

The evidence showed that prior to 1928 William A. Foster in behalf of his parents Jacob F. Foster and Mary Louisa Foster, his wife, and in response to a newspaper advertisement stating that the RidgelyFarmers State Bank had money to loan, went to the bank for the purpose of inquiring about same. He saw Edward Keys, the president of the institution, and made known his business and was referred by the president to Mr. Lowe, the assistant cashier. Mr. Keys told Foster that Lowe took care of such matters for the bank. A loan of $5,000 secured by a mortgage upon real estate was negotiated and the note and mortgage papers signed by Foster and his parents, payable to Frank H. Lowe, at the Ridgely-Farmers State Bank, Springfield, Illinois. Foster’s testimony further shows that the money was loaned directly to him and his parents by the bank. All the negotiations took place in the business quarters of the bank where Lowe, as assistant cashier, had a desk.

The appellee had long been a customer of the bank and maintained an account therein and at various times had consulted its president, vice president and Frank H. Lowe, assistant cashier, in making investments. She testified that from time to time, prior to January, 1928, she had dealt with Lowe as a representative and officer of the bank and always in the banking rooms during banking hours; that in January, 1928, she went to the bank to make a deposit and was approached by Lowe asking her if she wanted to make an investment in the Foster loan. She purchased this loan, upon his recommendation, and gave her check, payable to F. H. Lowe, for the amount of the loan, plus accrued interest. The check was indorsed “F. H. Lowe, Agent,” and deposited in an account designated “Frank H. Lowe, Agent.” The appellee further testified that this was all done in obedience to instructions from Lowe but that it was a bank transaction, and a loan which the institution disposed of to customers, when they were seeking to purchase investments. The appellee had purchased loans prior to this time from the bank which were carried on with Mr. Lowe in a similar manner. On February 1, 1929, the Fosters desired to pay off the loan and delivered to Lowe their check in full for the amount due, payable to him personally. This check was deposited in the Frank H. Lowe Agency account. The ledger sheet of “Frank H. Lowe, Ag*ent” shows that he collected the principal amount of said note and mortgage, amounting to the sum of $5,000, together with interest due June 5, 1929, in the sum of $162.50; that a check drawn on June 6, 1929, was issued to appellee covering interest coupon No. 4 in the sum of $162.50; that on October 24, 1929, a further check for $162.50 was drawn on said account covering coupon No. 5 and a further check on November 10, 1930, in the sum of $162.50; that a ledger sheet of July 2, 1931, of the personal account of Frank H. Lowe shows a check credited to the account of appellee in the sum of $164.35.

The Frank H. Lowe, Agent account was an account of the bank through which loans and other transactions of the bank were handled at and prior to the time that the Foster loan was made and at the time of the payment thereof. This was done for the convenience of the bank and during all the time the account ran in the bank under the designation of “Frank H. Lowe, Agent,” funds belonging to the bank were deposited therein and upon which deposit Lowe checked for purposes of the bank. Lowe testified that one of the reasons for maintaining this account in his name as agent was so that exchanges could be made without an order of the board of directors, but upon the request of the president and vice president; also that he was a widower and in making mortgages and loans, deeds would be simple of execution. When the bank closed Lowe was found to be a defaulter and indebted to the bank in a sum exceeding $60,000.

The cause was referred to the master in chancery, who took the proofs and reported to the court that the Fosters had paid the mortgage indebtedness to the bank and that such fund was held by the bank, in trust, for the appellee and the court entered a decree giving judgment for the appellee for a preferred claim in the sum of $5,000.

The appellant contends that the court erred in finding that the appellee was entitled to a preference: First, because there is no testimony showing that the funds, in payment of the Foster loan, were ever traced into the hands of the bank and even if it be admitted that such funds were traced into the bank that they were traced out again before the receiver took possession of the assets of said bank; second, that the money was paid to Frank H. Lowe, personally, and the bank never received the money. Appellant insists that there is no showing, whatsoever, that any money was placed for appellee in the bank and no testimony anywhere in the record that the bank ever received any part of the check in payment of the mortgage which did in any manner augment its assets. It relies upon the principle stated in the case of People ex rel. Nelson v. Peoples State Bank of Maywood, 354 Ill. 519, as follows:

“The insufficiency of the assets to satisfy all the demands made upon the insolvent gives rise to claims for preferences and the necessity for their adjudication. The real controversy in a case of this character is therefore between the claimants who seek priority in the order of payment on the one hand and the great body of creditors, usually represented by the receiver, on the other. All debts, in the absence of priorities prescribed by statute, are of the same rank or level, and a person who seeks a preference over his fellow claimants in the distribution of an insolvent’s assets must show that he occupies some relation to the insolvent’s estate which differs from and raises him above the plane of a mere creditor. The law recognizes a claim for a preference actually based on a right of property in specific assets in the possession of an insolvent bank at the time it ceased to do business. In case of the misappropriation of such assets, a court of equity, when its jurisdiction is invoked by an appropriate action, will declare the wrongdoer a constructive trustee of the proceeds of his wrongful act. The constructive trust will attach to successive substitutions so long as they can be identified as the product, either as a whole or in part of the original assets, and the superior rights of a bona fide purchaser have not intervened. A trust, however, necessarily involves a relationship between the persons with respect to a certain property, and unless the claimant shows, in the case, for example, of an insolvent bank, that the receiver has possession of the whole or a part of the property or its proceeds, the claimant does not place himself in a relation to the insolvent’s estate which differs from that of an ordinary creditor and, as a consequence, no trust can be declared or enforced. ’ ’

Appellant insists that it is not sufficient to merely trace funds into a bank but that they must be traced also into the hands of the receiver; that the proof of a check being traced to a bank does not create any presumption that the assets going into the hands of its receiver are augmented; that the burden of proof is upon a claimant to make such proof by competent testimony and that they must not only trace a check into the bank but the proceeds must also be traced. It insists that appellee has wholly failed to make such proof in this case. On this question we think the proof clearly shows that at and prior to the time the Foster loan was made, at the time of its purchase by appellee, and at the time of the payment thereof and the issuing of the interest checks above mentioned, the said Frank H. Lowe was at all times an employee of said bank in the capacity of assistant cashier; that for the convenience of the bank an account designated “Frank H. Lowe, Agent” was created and used by the bank in buying land, taking over mortgages, buying up tax sales certificates, all in behalf of the bank and in making many other investments which would not go through the general books. The chief reason for the account was for avoiding action on the part of the board of directors in the handling of such matters and making the conduct of that particular business, on the part of the bank, more simple and direct. It is apparent from the testimony that this account had been carried on for many years in this particular manner and with the knowledge and approval of the bank and its officers. The money borrowed by the Fosters was the money of the Ridgely-Farmers State Bank; that the appellee in purchasing said loan paid the purchase price thereof to the bank; that the payment of the indebtedness by the Fosters on February 1, 1929, was a payment to the bank and that said Lowe, as an assistant cashier of said bank, was authorized to make such collections; that he had' previously, under the direction and with the knowledge of the officers of said bank, carried on similar transactions through this same account; that the payment received from the Fosters was deposited in this agent account and that being an established and recognized account of the bank its assets were thereby augmented in the sum of $5,000 and were held by the bank at the time of the appointment of the receiver; and that the payment to the bank of said sum was received by it as agent for appellee.

We, therefore, believe that the payment, by the Fosters, of the sum of $5,162.50 was for the specific purpose of paying the same to the appellee and thereby a trust relation was created between the bank and the appellee. In the case of In re Receivership of National Bank of Ottawa, 273 Ill. App. 545, the court said :

“It is immaterial how this fund came into the bank and it does not matter how the bank saw fit to carry it on its books. The bank obtained the fund.”

If the Ridgely-Farmers State Bank deemed it wise and convenient to handle its various loan transactions through an account designated “Frank H. Lowe, Agent” it cannot deny that money paid into the bank and deposited in that account did not augment the assets of the bank. In the case of People v. Bates, 351 Ill. 439, 443, the court said:

“The modern doctrine as now established is, that where the form of trust property is changed by a fiduciary and the proceeds mingled with the mass of the assets comprising his insolvent estate the cestui que trust may resort to the mass if augmented by the trust property.”

Appellant further urges that even if the money were traced into the bank by the evidence in this case, it was traced out again before the receiver took charge. It states that Lowe was finally shown to have been discharged from the bank upon being discovered to be some $64,000 short in his accounts. It further shows that upon the witness stand Lowe testified that neither the appellee nor the bank got the proceeds from the Foster check, and that therefore the clear inference is that the bank never secured the proceeds of said check. However, the testimony of Lowe clearly shows that this money was deposited in his agent account and while he may have been a defaulter and short in his accounts there is no proof to show that the Foster money was directly misappropriated by him. The testimony of the witness Eidgely Watts, a former cashier of the bank, who checked over the accounts of Lowe, testified that he could find no evidence of the misappropriation of this particular fund. Appellant urges that the facts in this case are similar to those in the case of Gaupp v. Colegrove & Co. State Bank, 357 Ill. 499, but in that case the president, Colegrove, prior to the organization of the State Bank, while doing business as a private bank in Taylorville, accepted a sum of money in trust and upon receipt of the same promptly converted it to his own use without ever depositing it in the State Bank, which was subsequently formed to take over the private bank. The court held in that case the State Bank never at any time had the trust fund or any part of it in its possession or custody, nor was it ever in control of such fund, nor did it ever exercise or attempt to exercise any domination over the fund. In this case the money was paid directly to the bank and deposited in the F. H. Lowe, Agent account and at that time was under the domination and control of the bank. The testimony of Lowe that the Foster payment went through the same process, the agent account, as many other similar transactions and designated as bill receivable to the bank, more than offsets Ms concMsion on the cross-examination that the bank did not get it.

We believe, from an examination of the entire record of this case, there was sufficient testimony to sustain the findings of the master in chancery and that the decree of the lower court ordering that the claim of appellee for a preference be allowed in the sum of $5,000 was proper and that said decree should be affirmed.

Affirmed.


text:
    C. H. Warner et al., Appellants, v. John J. Hallihan and C. O. Wedeberg, Appellees.
    Gen. No. 8,912.

      Opinion filed July 17, 1935.
    Oscar J. Putting, of Springfield, for appellants.
    Otto Keener, Attorney General, for appellees; J. J. Neiger, Assistant Attorney General, W. St. John Wines and G. G. Ginnevan, both of Springfield, of counsel.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.

Appellants filed a petition in the circuit court of Sangamon county for a writ of mandamus to compel John J. Hallihan, individually and as director of the department of registration and education, to set aside an order dismissing proceedings to revoke the license of C. 0. Wedeberg to practice dentistry in the State of Illinois; and to expunge from the records of the department such order of dismissal. Demurrers to the petition were filed by appellees and sustained. Appellants elected to stand by their petition, and the court dismissed the petition and entered judgment against petitioners for costs of suit. The appeal is brought to this court to review such judgment.

The petition alleges that the appellee C. 0. Wedeberg received his license to practice dentistry in Illinois on December 14, A. D. 1920; that on November 14, 1932, complaint was filed with the director of the department of registration and education charging said C. O. Wedeberg with violation of the dental act by being misleading in advertising; that the said C. 0. Wedeberg was duly notified, according to law, and a hearing had on said charges before the dental committee of the department; that after the evidence was taken in behalf of all the parties the said dental examining committee of the department on the 20th day of February, A. D. 1933, rendered its decision finding the charges in said complaint to be true and recommending the revocation of the license of the said C. O. Wedeberg to practice dentistry in the State of Illinois; that after such decision a petition for rehearing was filed by the said C. O. Wedeberg with M. F. Walsh, the then director of the department of registration and education of the State of Illinois; that the said director M. F. Walsh, without lawful right, power or authority of any kind whatever, did on July 27, 1933, enter an order dismissing said proceedings; that since said date the term of office of said M. F. Walsh has expired and the appellee John J. Hallihan became and still is acting as the director of said department; that demand was made on the said John J. Hallihan as such director, to set aside, vacate and expunge the official record of dismissal of said proceedings but that he has refused so to do; that it is the duty of said director to expunge said record of dismissal and to consider the petition for rehearing; that because of such refusal the board of dental examiners has been deprived of its right to pas's upon the rehearing filed in said cause; and that the correct exercise of the powers and duties of the said director in regard to the charges against C. O. Wedeberg are of great public interest and a matter of concern to the People of the State of Illinois generally.

The prayer of the petition asks that the department be required to expunge the record of director Walsh, and that director Hallihan be directed to consider the evidence and sustain the finding of the dental committee, or remand the matter, to said dental committee for further consideration on a rehearing or to refer the matter to some other committee to be selected by-director Hallihan, and that such further orders may be entered as justice shall require.

The principal argument of appellants revolves around the question of whether the director of registration and education had power to dismiss a proceeding to revoke or suspend a dentist’s certificate or license during the pendency of petition for rehearing filed with such director. It is contended that the statute contains no power or authority to enter an order of dismissal. The appellants further urged that the director had the lawful power to refuse or to grant a rehearing but that the dismissal of the petition for rehearing was entirely unwarranted.

The only provision of the statute concerning a rehearing was that contained in the last paragraph of section 60a of the Civil Administrative Code, Cahill’s St. ch. 24a, If 61(1), which provided as follows: “Whenever the Director is satisfied that substantial justice has not been done either in an examination or in the revocation of or refusal to renew a license, certificate or authority, he may order re-examinations or re-hearings by the same or other examiners.” There is no other provision covering such a proceeding by the director and therefore the petition in this cause must be predicated upon the section above quoted. Sections 60a and 60-1 inclusive, Cahill’s St. ch. 24a, ffif 61(1)-61-1, were added to the Civil Administrative Code in 1927 and have been twice held by the Supreme Court to be unconstitutional. Schireson v. Walsh, 354 Ill. 40; Kalman v. Walsh, 355 Ill. 341. The appellants contend that the validity of an act cannot be involved in an appeal where it is not raised in the trial court but first appears in briefs on appeal but we do not consider that any constitutional question is involved on this appeal. No right can be predicated upon an unconstitutional law, People v. Butter Street Foundry & Iron Co., 201 Ill. 236. “An unconstitutional act is not law.' It confers no rights; it imposes no duties; it affords no protection; it creates no office. It is, in legal contemplation, as inoperative as though it had never been passed.” Chicago, W. & V. Coal Co. v. People, 214 Ill. 421; Board of Highway Com’rs v. City of Bloomington, 253 Ill. 164. The right upon which this petition is predicated, being based upon a law declared unconstitutional by our Supreme Court, does not raise a constitutional question in this case and affords no basis for writ of mandamus. The petition does not set forth any other reason for granting the relief demanded and it was proper for the appellees to challenge the sufficiency of the petition by demurrer as was done in the Kalman case, supra.

A party petitioning for a writ of mandamus must show a clear and undoubted right to the relief demanded and the writ will not be awarded except in a clear case. People ex rel. Molchan v. City of Streator, 258 Ill. 273. Even though the statute does not expressly authorize the director of the department of registration and education to enter an order dismissing a petition for rehearing the petition filed in this case does not disclose on its face such a clear right to the relief asked for as to warrant a court to award a writ of mandamus. We feel that the action of the circuit court of Sangamon county in sustaining the demurrers to the petition of appellants was correct and the judgment of that court will therefore be affirmed.

Affirmed.


author: Mr. Justice Allaben

text:
    M. D. Pollock, Appellant, v. The Connecticut Fire Insurance Company of Hartford, Appellee.
    Gen. No. 8,886.

      Opinion filed July 17, 1935.
    Redmon, Redmon & Bodman, of Decatur, for appellant.
    Myers & Snerly, of Chicago, and Charles F, Evans, of Decatur, for appellee.
   Mr. Justice Allaben

delivered the opinion of the court.

Dr. M. D. Pollock, the plaintiff appellant, owned certain premises in joint tenancy with his wife, they having received title thereto as such joint tenants on December 27,1922. A renewal fire insurance policy was issued to plaintiff appellant after the expiration of a prior policy. No application was made by plaintiff appellant for policies, no representations were made by him, and no questions were asked about the status of his title. The policy was made out to plaintiff appellant alone, was sent to him and he paid for it. Plaintiff appellant and his wife occupied the premises insured, as a home. Subsequently plaintiff appellant filed suit to recover for a loss allegedly caused by lightning, the amount sued for being $2,500. A demurrer was filed to the plaintiff appellant’s declaration, the demurrer sustained and the declaration amended. Defendant appellee then filed a motion for a bill of particulars which was allowed, and bill of particulars was filed. Plaintiff appellant obtained leave to file a second count to the declaration, which was demurred to by defendant appellee and later withdrawn by plaintiff appellant. Plaintiff appellant then obtained leave to file a third count to the declaration. Defendant appellee then filed amended pleas to the whole declaration, and plaintiff appellant filed his replication to the pleas. In brief the declaration as amended alleged that the defendant appellee insured the house of plaintiff appellant against damage by fire, lightning, and so forth. It averred that the house was struck by lightning and damaged, that plaintiff appellant gave notice to the defendant appellee of the loss, that the defendant appellee made an investigation and denied liability; that plaintiff appellant requested the appointment of appraisers as provided for by the policy which the defendant appellee neglected and refused to select; that the plaintiff appellant and his wife were the owners and joint tenants of the premises; that the defendant appellee issued the policy of insurance without requesting the plaintiff appellant to make any application; that the plaintiff appellant never made any misrepresentation as to his title, and no inquiries concerning it were made by the defendant appellee, or its agents; that the deed showing title to be in plaintiff appellant and his wife was on record prior to the issuance of the policy, and that the premises were occupied by the plaintiff appellant and his wife as their home, which occupancy was known by defendant appellee’s agent, that the plaintiff appellant paid the defendant appellee $95 as premium for the policy. To this declaration the defendant appellee pleaded the general issue, and the special pleas referred to, alleged that the requirements of the policy as to notice of loss were not complied with; that the policy was void from its inception because the interest of the insured was not sole and unconditional ownership tendered $105 premium paid; and that since there was other insurance upon the premises defendant appellee was liable only for its proportionate share which was two-thirds.

Upon trial jury returned a verdict for plaintiff appellant in the sum of $1,140.77. Defendant appellee made a motion for judgment notwithstanding the verdict on the grounds that giving the evidence all its probative force and effect plaintiff appellant had failed to prove a cause of action; that under the law and the evidence the verdict should have been for defendant appellee; that because premises were owned in joint tenancy, and policy contained the following provision:

“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if . . . or if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple” and because it appeared undisputed in the evidence that plaintiff appellant did not furnish defendant appellee with a signed sworn statement and inventory, and other information as required by the policy. The court sustained this motion, and judgment for costs was entered against the plaintiff appellant. From this ruling plaintiff appellant appeals, relying upon the alleged errors that the court should not have sustained defendant appellee’s motion for judgment notwithstanding the verdict, and that it is apparent upon the face of the pleadings and from the admissions of the defendant appellee that assuming the defendant appellee’s theory that policy was void, plaintiff appellant should have had judgment for $105 for premiums paid in good faith.

The first question which is raised is- whether the “sole and unconditional” ownership clause was rightly invoked by the defendant appellee as a defense. It appears to us to be well settled that if the party to an insurance contract has specifically agreed that the insured cannot benefit by the contract of insurance unless he be the sole and unconditional owner of the property insured a failure to possess the ownership contemplated by this clause will successfully bar a recovery upon the policy in the absence of a definite waiver of this condition by the insurer, or an estoppel which would preclude it from setting up such a defense. In Capps v. National Union Fire Ins. Co., 318 Ill. 350, which was a suit on an insurance policy containing a sole and unconditional ownership clause the court said: “It is also settled that conditions in a policy of fire insurance rendering the policy void if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple, are reasonable and valid, and that a breach of such conditions, or either of them, is a bar to a recovery under the policy, in the absence of a waiver of the condition or an estoppel which precludes the company from making its defense.” In the same opinion the court further said: “He” (plaintiff) “cannot recover on the theory that the insurer has waived the breach of the condition, which would otherwise bar a recovery, unless he produces evidence establishing the fact of waiver. . . . The evidence in this record not only shows that neither the company nor its agent had any knowledge of the condition of the title of the defendant in error, but it shows affirmatively that the company has done nothing showing that it has waived or intended to waive any of the conditions of the policy, and that it has done nothing which estops it from making the defense that the defendant in error was not the sole and unconditional owner of the property insured, or the owner in fee of the land on which the building insured was located. ’ ’

In the case at bar it was argued by plaintiff appellant that the record of the deed to plaintiff appellant and his wife was notice to. the defendant appellee, and its agent, through whom the policy was written of the condition of the title; that no application was taken for the policy, and no inquiry was made as to the state of the title; and that for these reasons the requirement of absolute and sole ownership was waived. The cases cited by plaintiff appellant to sustain this view do not appear to us to lay down the rule which plaintiff appellant argues. One of the cases cited turned on the point that the agent for the insurance company had made out an application for the insured and signed the insured’s name; another was a case where the application was by the terms of the policy incorporated in the policy, and made a part of it, and it did not appear from the record that the application was ever in fact executed; and a third case merely lays down the rule that where the owner of property has contracted to sell the same, and the contract is executory it does not render his ownership other than sole and unconditional. These cases do not parallel the case at bar, for so far as the facts are shown in this case there "was no application required, and the terms of the policy incorporated no application, and no application was ever in fact executed by either the insured or the agent for the company, and the policy issued was a renewal of an existing policy.

It appears to us that when the plaintiff appellant received the policy from the defendant appellee containing the sole and unconditional ownership clause, and when he accepted this policy he thereby became charged with the knowledge of the terms and conditions contained therein; and we fail to see how it can be successfully contended that any duty rested upon the defendant appellee to notify the plaintiff appellant of the contents of the policy, for, as said in the case of Capps v. National Union Fire Ins. Co., 318 Ill. 350, “Unless he has been misled by some act of the insurer, it is generally held that a person who accepts and retains the possession of an insurance policy is bound to know its contents.” (Citing Crikelair v. Citizens’ Ins. Co., 168 Ill. 309.) This being the rule, if there was anything wrong with the policy which would give rise to a defense because the terms of the contract had not been complied with such as not correctly setting out the interest of the plaintiff appellant in the premises insured, it became the plaintiff appellant’s duty to return the policy for correction. There is no evidence in this case that the insurer by any act of its agents or otherwise made any representations or promises or used any artifices or deceit to induce the plaintiff appellant to enter into the insurance contract, and we cannot see how, it can be .successfully argued that the insured was misled by any act of the insurer, nor can we conceive that the fact that the deed to plaintiff appellant and his wife as joint tenants although a matter of public record was constructive notice to the defendant appellee of the status of the title to the premises insured. We do not believe that it requires the citation of authority to support the rule that the recording of such instrument is constructive notice only to creditors and subsequent purchasers without notice. Obviously this rule cannot be invoked in aid of plaintiff appellant’s case, and we further do not believe that the possession of premises, contrary to the contention of plaintiff appellant, is notice to the world of anything more than that the possessor has or claims to have some interest in the premises. It cannot be successfully contended that mere "possession is any notice of the extent or quality of the title or ownership of persons in possession, and especially is this true of husband and wife.

Holding as we do that the misstatement as to the ownership of the property voided the policy in question from its inception, it is not necessary and we will not discuss defendant appellee’s further contention that a proper verified written claim was not furnished defendant appellee within 60 days as provided by statute. Plaintiff appellant contends that where a husband and wife own property in joint tenancy, each is the sole and unconditional owner, for the purposes of insurance. Whatever may have been the rule prior to the passage of the Married Woman’s Act, 1861, and as later amended, it is clear that our Supreme Court' has held that a husband and wife can own property in joint tenancy, but such joint tenancy is governed by the rule applicable to all other joint tenants; and that either one of them is not the sole owner. Lawler v. Byrne, 252 Ill. 194; Anderson v. Anderson, 339 Ill. 400.

This leaves but one other question for attention. Plaintiff appellant contends that because no tender of the premium plus interest was ever made or kept good defendant appellee could not raise the question that the policy was void ab initio and that in any event plaintiff appellant was entitled to judgment in the amount of the premium and interest from date of payment. We cannot agree with either contention. The policy being void from its inception, it was not necessary that any tender be made or kept good to entitle the defendant appellee to make its defense that the policy was void ab initio. Seaback v. Metropolitan Life Ins. Co., 274 Ill. 516; Link v. Mutual Life Ins. of New York, 234 Ill. App. 250; Hermann v. Court of Honor, 193 Ill. App. 366. In order for the plaintiff appellant to maintain an action for return of premium paid plus interest on an invalid policy it is necessary that the plaintiff appellant tender back the policy and sue for the premium paid. This was not done, for this suit does not tender back the policy but is a suit to recover upon it.

Finding no error in the action of the trial court, it is the opinion of this court that the judgment of the trial court should be and it is hereby affirmed.

Judgment affirmed.


author: Mr. Justice Davis

text:
    The People of the State of Illinois, Defendant in Error, v. Fred E. Chapman, Plaintiff in Error.
    Gen. No. 8,882.

      Opinion filed July 17, 1935.
    John A. McKeene, of Winchester, for plaintiff in error.
    C. C. Carter, State’s Attorney, for defendant in error; S. H. Cummins, of Springfield, of counsel.
   Mr. Justice Davis

delivered the opinion of the court.

An indictment was returned by a grand jury in the circuit court of Scott county, charging the plaintiff in error with having made an assault with a deadly weapon upon one Hubert Gregory. The circuit clerk certified said indictment to the county court of said county for trial, and upon a trial the plaintiff in error was convicted and a judgment was rendered upon the verdict of a jury and the cause is in this court upon a writ of error to said county court of Scott county.

The indictment in its two counts charged the plaintiff in error with having made an assault upon the person of one Hubert Gregory with a deadly weapon with intent to unlawfully inflict upon his person a bodily injury, no considerable provocation appearing and the circumstances of the assault showing an abandoned and malignant heart.

A motion for a new trial, in writing, was made and overruled and also a motion in arrest of judgment, specifying several grounds, was made and overruled by the court.

The clerk of the circuit court in certifying said indictment to the county court of Scott county made a certificate, as required by section 121 of the County Court Act (Cahill’s Ill. Rev. St. 1933, ch. 37, ¶ 320), but did not indorse said certificate upon the back of said indictment. Plaintiff in error by his attorney moved the court to strike the case from the docket for want of a certificate of the circuit clerk of Scott county indorsed on the indictment, as required by the statute, and the People, by the State’s attorney, made a cross motion for a rule on the clerk of the circuit court of Scott county to furnish a complete record in said cause, duly and properly certified.

The court denied the motion of plaintiff in error to strike said cause and granted the cross motion of the People and ruled the clerk of the circuit court to file a full and complete record of the cause with the county clerk. In compliance with said rule the clerk of the circuit court indorsed said certificate upon the back of said indictment, but failed to certify to said county court a complete record in said cause. Plaintiff in error, by his attorney, renewed his motion to strike said cause from the docket for the reason that the rule of thé county court, requiring the clerk of the circuit court to certify a complete record in said cause in the circuit court, was not complied with, which motion was overruled by the court and said defendant was required to proceed to the trial of said cause upon said indictment so certified by the clerk of the circuit court but without a complete record of said cause in the circuit court.

Plaintiff in error insists that the county court erred in requiring him to proceed to trial and in assuming jurisdiction of the case in the absence of a proper certificate from the clerk of the circuit court and without a complete record of the case in the circuit court certified to the trial court.

While it is true that said section 121 of the County Court Act provides that where the certificate therein prescribed is indorsed on the back of any indictment it shall be sufficient to warrant a trial and conviction of any party charged in any indictment so certified, and shall be deemed a sufficient record to authorize the county court to try the party so indicted, but it is further provided that either party may ask for and obtain a rule on the clerk of the circuit court for a complete record, duly and properly certified, of any cause pending in the county court having been certified as provided for in said section, and when a complete record shall be so certified to the county court, said court shall be governed thereby in all respects in all of its proceedings. A complete record, if certified, would contain proof of the organization of the circuit court, the impaneling of the grand jury, the returning of the indictment into open court by the grand jury, the indictment, and the order directing the same to be certified to the county court, and when, as in this case, a rule is entered at the instance of one of the parties for a complete record of said cause in the circuit court, duly and properly certified, it is error for the court to proceed to trial over the objections of the defendant before such complete record is filed in said court. When said record is so filed the court must be governed thereby in all respects in all of its proceedings, and a defendant is in a position to take advantage of any lack of jurisdiction of the circuit court or error in the returning of such indictment. Until such complete record is filed, the county court is without jurisdiction to try said cause. The only way the county court can obtain jurisdiction to try a person accused by indictment is under the provisions of sections 120 and 121 of the County Court Act. People v. Jabine, 324 Ill. 55. The trial court was in error when it proceeded to a trial of said cause before a complete record of said cause was filed in said court.

It is further insisted that the record fails to show that the trial jury was impaneled and sworn. It is essential to the validity of the record of all criminal cases to show, among other things, that the trial jury was impaneled and sworn. The record in this case is silent as to such requirement, and for that reason defective. People v. Gray, 261 Ill. 140; People v. Green, 329 Ill. 576.

Plaintiff in error also complains of the giving of certain instructions for the People. Under the provisions of section 67 of the Civil Practice Act, Cahill’s St. ch. 110,1Í195, which under Buie 27 of the Supreme Court governs the giving of instructions in criminal cases, specific objections must be made to all instructions which are deemed to be incorrect or misleading, and plaintiff in error not having complied with the provisions of this section, the question of the sufficiency of the instructions complained of is not before us for consideration.

It is next contended that the court erred in rendering judgment upon the verdict of the jury. It will be seen that the indictment charges plaintiff in error with making an assault upon one Hubert Gregory, with intent to inflict upon his person bodily harm, where no considerable provocation appears and the circumstances showing an abandoned and malignant heart.

The jury returned the following verdict: “We, the jury, find the defendant guilty of an assault with a deadly weapon, in manner and form as charged in the indictment in this case. ’ ’

The offense charged in the indictment is a statutory one, and it is provided, in substance, that an assault with a deadly weapon with intent to inflict upon the person of another a bodily injury, where no considerable provocation appears, or where the circumstances of the assault show an abandoned or malignant heart, shall subject the defendant to a fine, etc.

The verdict is not one of guilty as charged in the indictment, but is a verdict of guilty of one element of the offense as that element was charged in the indictment. Where a crime consists of an assault with a specific intent, the one charged with the crime can only be convicted upon proof both of an assault and the intent specified, both being material elements of the crime. Turley v. People, 188 Ill. 628.

In order to convict the defendant of the offense charged in the indictment it is not only necessary that the jury find him guilty of an assault with a deadly weapon, but it must also find that such assault was made with an intent to inflict upon the person assaulted a bodily injury, where no considerable provocation appears, or where the circumstances of the assault show an abandoned or malignant heart.

To authorize a judgment against a defendant the verdict in a criminal case must be responsive to the issues, and must contain, either in itself or by reference to the indictment, every material fact constituting the crime. Donovan v. People, 215 Ill. 520.

While the verdict returned by the jury referred to the indictment and while the two counts of the indictment so far as the material allegations necessary to constitute the offense charged are the same, the reference to the indictment did not aid the verdict since the reference was limited to the assault with a deadly weapon and did not, by any reasonable intendment, include the intent to inflict upon the person assaulted a bodily injury, nor that the assault was one where no considerable provocation appeared or where the circumstances of the assault showed an abandoned or malignant heart. Donovan v. People, supra.

Had the jury found the defendant guilty, as charged in the indictment, the two counts being identical, the verdict would have included all of the necessary elements of the offense charged. The verdict was insufficient to authorize the judgment. People v. Lemen, 231 Ill. 193.

The plaintiff in error complains of the action of the court in excluding evidence offered in his behalf, but he failed to point ont in his brief any ruling of the trial court on the admissibility of the evidence, and for that reason has waived any such alleged errors.

For the errors indicated the judgment of the county court is reversed and the cause remanded to said court for a retrial.

Reversed and remanded.


text:
    The People of the State of Illinois ex rel. Edward J. Barrett v. First State Bank and Trust Company of Canton. Robert W. Albright, Receiver of the First National Bank of Canton, Appellant, v. William L. O’Connell, Receiver of the First State Bank and Trust Company of Canton, Appellee.
    Gen. No. 8,895.
    Opinion filed July 17, 1935.
    Lyle Thomas, of Lewistown, for appellant.
    Glenn Ratcliff, of Lewistown, and Sgott W.1 Lugas, of Havana, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.

M. D. Lawler, appellant, was duly appointed receiver of the First National Bank of Canton by the comptroller of currency, and as such receiver filed his intervening petition in the circuit court of Fulton county in a pending case, entitled The People of the State of lilinois, ex rel. Edward J. Barrett, Auditor, etc., v. The First State Bank and Trust Company of Canton, praying that an order be entered decreeing that appellant, as such receiver of the First National Bank of Canton, is entitled to a preference and priority in payment of the sum of $2,385, evidenced by a cashier’s check issued by said First State Bank and Trust Company, payable to the order of Gr. W. Smith, vice president of said First National Bank, and ordering said Wm. L. O’Connell as such receiver to pay appellant said sum of $2,385.

Both of these banks had conducted a banking business for many years in the city of Canton, and on March 4, 1933, all banking institutions in the State of Illinois were closed under authority of the State of Illinois, and afterwards, on March 6, 1933, under proclamation of the President of the United States, and neither was given authority to reopen for business, and both banks were placed in receivership.

The death of M. D. Lawler, receiver for said First National Bank of Canton, having been suggested, an order was entered by this court substituting Robert W. Albright receiver for said First National Bank of Canton as appellant.

The record in the case discloses that on March 3, 1933, the First National Bank received in the regular course of business a check in the sum of $2,385, signed by one Charles Stein,. and drawn on the First State Bank, which was duly indorsed by the payee and the same was cashed by said First National Bank and paid in full.

During the business hours on said day the First National Bank, through Harvey L. Barth, its teller and bookkeeper, presented said check to the First State Bank, which was duly honored, and the same was charged to the account of Charles Stein, who had on deposit an amount sufficient to pay the cheek in full, and thereupon said First State Bank issued the cashier’s check in question and delivered the same to said Harvey L. Barth.

It also appears that, at that time and until the closing of the bank on said date, said bank had on hand cash in excess of the amount of said check. Neither bank opened for the transaction of business on the following day, and both banks were later placed in the hands of receivers.

A stipulation was entered into by the parties as to some of the facts, and Harvey L. Barth, who was teller and bookkeeper of the First National Bank, testified as a witness.

He testified that on March 3,1933, Gr. W. Smith, vice president of the First National Bank, called him to his desk and handed him the Charles Stein check in the sum of $2,385, drawn on the First State Bank. It was past the legal hour of clearance, and it being a large item he wanted to be sure that the check was good. This was about 2:30 p. m. He asked me to take it over to the First State Bank and present it to them, which I did. The custom was to clear all checks, in the three banks in Canton, at the hour of 12:45 p. m. each day. Each bank gathered their items together, drawn on the other two banks, and the Canton National Bank acted as the clearing house for the three banks in the city. Settlement was made in cash or draft on correspondent banks in Chicago or New York.

He further testified he took the check over and presented it and it was accepted, and the cashier’s check was handed to him and he took it back and gave it to Mr. Smith, and that was the extent of his connection with the check. Neither bank had any account with the other bank.

Barth testified, the cashier’s check was received by me in lieu of cash on March 3, 1933, and in payment of the Stein check. It was received as remittance on that check.

Appellant maintains that the trial court erred in its order disallowing the claim of the receiver of the First National Bank of Canton as a preferred claim and allowing the same as a general claim against said First State Bank and Trust Company of Canton.

Appellant relies upon paragraph 2, section 13, of the Bank Collection Act (section 2, ch. 16a, H 37, Cahill’s Rev. St. 1933) as conclusive of the issues presented for determination by the court. He says that a representative of the First National Bank of Canton presented the Stein check to the First State Bank and Trust Company of Canton, and said drawee bank charged the same to the account of its customer and issued and delivered to said representative its cashier’s check for $2,385, which check was thereafter presented to the receiver of said First State Bank and Trust Company for payment' and payment was refused, which clearly established the right to a preferred claim under the provisions of said act.

Appellee agrees that the interpretation of this section is the principal issue in the case, but charges that appellant has omitted all mention of that portion of paragraph 2, section 13, of the act, which in effect provides if settlement has been made by the payor bank by giving an unconditional credit on its books to the party presenting the check for payment under circumstances creating the relation of debtor and creditor, no preference shall be allowed.

The cashier’s check in question reads as follows:

Cashier’s Check No. 3825

Pay to the order of

G-. W. Smith V Pres 1st Nat Bk Canton Ill $2385.00

1st State Bank

& Trust *Co 2385 Dols 00 cts. Dollars

To

First State Bank & Trust Co. Gfeo. W. Lane

70-222 Canton, Illinois 70-222 A Cashier

. The provisions of the act referred to, necessary to be considered in detérmining the question presented; are contained in paragraph 2, section 13, of said act, and are as follows:

When a drawee or payor bank has presented to it for payment an item or items drawn upon or payable by or at such bank and at the time has on deposit to the credit of the maker or drawer an amount equal to such item or items and such drawee or payor shall fail or close for business as above, after having charged such item or items to the account of the maker or drawer thereof or otherwise discharged his liability thereon but without such item or items having been paid or settled for by the drawee or payor either in money or by an unconditional credit given on its books or on the books of any other bank, which has been requested or accepted so as to constitute such drawee or payor or other bank debtor therefor, the assets of such drawee or payor shall be impressed with a trust in favor of the owner or owners of such item or items for the amount thereof, . >. . and such owner or owners shall be entitled to a preferred claim upon such assets. . . .

In other words, if a person presents for payment at a bank an item drawn upon or payable by or at such bank by one who has on deposit in the bank an amount sufficient to pay such item, and the same is charged to the account of the maker or drawer thereof, or his liability thereon is otherwise discharged, and such item has been paid or settled for by such drawee or payor either in money or by an unconditional credit given on its books or on the books of any other bank, which has been requested or accepted so as to constitute such drawee or payor or other bank debtor therefor, and the payor bank fails, the owner of such item shall not be entitled to a preferred claim upon the assets of the drawee or payor bank.

It clearly appears from the evidence that the First National Bank of Canton presented to the First State Bank and Trust Company of Canton the check drawn upon said bank by Charles Stein who had on deposit an amount sufficient to pay said check, and which check was charged to his account and settled for by the First State Bank and Trust Company giving to the First National Bank its cashier’s check, which was accepted by said bank in lieu of cash.

In construing a provision of an Act of the General Assembly of the State of South Carolina which was in the language of paragraph 2 of section 13 of the Bank Collection Act of this State the Supreme Court of said State held that under the facts the cashier’s check in question in that case was simply evidence of a debt due by the bank, and established the relation of debtor and creditor. (South Carolina State Bank v. Citizens’ Bank, 173 S. C. 496, 176 S. E. 346.)

L. B. Rogers had sold some cotton seed to Swift & Co., and the representative of Swift paid for the same by means of a “seed ticket” for $1,379.24; this seed’ ticket was to all intents and purposes a draft on Swift & Co. of Columbia, and drawn through the Farmers’ & Merchants’ Bank of Lotta. Rogers went to the Lotta bank to cash the seed ticket and was told by the cashier that the bank did not have sufficient funds on hand for that purpose. Rogers walked out of the bank and was followed by an assistant cashier who offered him $100 in cash and a cashier’s check for the balance. This arrangement was agreed to, and the $100 in cash was paid and Rogers stated, “So I swapped him the ticket for a cashier’s check.” Rogers deposited the cashier’s check in a bank at Dillon for collection. The Farmers’ & Merchants’ Bank at Lotta closed its doors before its cashier’s check was paid and the Citizens Bank was appointed receiver. The South Carolina State Bank filed a claim against the receiver on behalf of Rogers as a preferred claim.

The court held: The cashier’s check given to Rogers was simply the evidence of a debt due Rogers by the bank. As the bank was unable to cash the seed ticket, Rogers being fully informed of this fact, the transaction was closed by the giving of the cashier’s check, which amounted to no more than a promise to pay at a future day, and thereby established the relation of debtor and creditor without security.

In the case under consideration the First National Bank of Canton had the option of taking cash in payment of the Stein check, but elected to take a cashier’s check in lieu thereof, which amounted to an unconditional credit upon the books of the First State Bank, and the issuing of the cashier’s check by the First State Bank and Trust Company and the acceptance of the same by the First National Bank under the facts and circumstances constituted said First State Bank and Trust Company a debtor therefor and closed the transaction.

The cashier’s check was an unconditional promise on the part of the First State Bank and Trust Company to pay to the order of the First National Bank the amount therein specified at some future time and created the relationship of debtor and creditor.

We are of the opinion that the facts bring appellant clearly within the exceptions contained in said paragraph 2 of section 13 of the Bank Collection Act, and that he is not entitled to the preference claimed.

The decree of the circuit court of Fulton county is affirmed.

Affirmed.