text:
    May E. Bruesch, Defendant in Error, v. Prudential Insurance Company of America, Plaintiff in Error.
    Gen. No. 36,631.

      Matchett, J., dissenting.
    Opinion filed June 12, 1933.
    Hoyne, O’Connor & Rubinkam, for plaintiff in error.
    Joseph H. Hinshaw, for defendant in error; Os-well Gr. Treadway, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

May E. Brueseh, the beneficiary named in a life insurance policy issued to her husband July 13, 1925, by the defendant insurance company, brought suit to recover $5,000, the face of the policy. There was a verdict and judgment in her favor for $4;873.59, which was the face of the policy less $126.41, which sum her deceased husband in his lifetime had borrowed on the policy. The defendant appeals and contends that the policy had lapsed by reason of the failure to pay the quarterly premium of $33.85, which fell due July 13, 1930.

The record discloses that William Brueseh, plaintiff’s husband, died March 21,1931; that the last quarterly premium of $33.85 was paid May 14,1930, which paid the premium up to July 13, 1930, and that nothing has been paid since that time. It further appears that William Brueseh borrowed $126.41 from the defendant insurance company on the policy.

Plaintiff, Mrs. Brueseh, gave testimony to the effect that a few weeks before her husband died she went to the agency of defendant and stated she had learned that her husband, who was then very ill, had borrowed. $126.41 on the policy and she desired to pay that indebtedness and tendered the money, but was advised by defendant’s representative that the policy was “dead” because of the failure to pay the premium which became due July 13, 1930. On the other hand, John T. Birch testified that he had been employed by the Prudential Insurance Company for more than 24 years, that he knew Mr. and Mrs. Bruesch; that a few weeks before Bruesch’s death Mrs. Bruesch called on him at the defendant’s place of business, produced the policy and said she wanted it “revided”; that he told her the company would be glad to revive it but it was necessary for her to pay the unpaid premium; that shortly after Bruesch’s death Mrs. Bruesch called on him and told him that Bruesch had died and wanted to know if the policy was of any value; that he replied he did not know but would endeavor to find out, but did not think the policy was of. any value. William J. Krebs, another employee of the defendant company who was present when Mrs. Bruesch called to take the matter up with Birch, testified that he was cashier in the office of the Prudential Insurance Company and had been for more than eight years; that he saw Mrs. Bruesch about three weeks before her husband died; that Birch was present; that at that time Birch asked him if they could accept on behalf of the defendant partial or full payment of the amount of the loan on the policy, which had lapsed; that they told Mrs. Bruesch they did not think the policy was of any value at that time but would find out from the home office, and .that Mrs. Bruesch did not at any time tender any money in payment of the premium or of the loan.

The question for decision is whether the policy had lapsed prior to Bruesch’s death for failure to pay the premium which fell due July 13, 1930. The material provisions of the policy are as follows:

“If any premium be not paid when due, as specified on the first page hereof, this Policy shall be void and all premiums forfeited to the Company, except as herein provided. The payment of any premium shall not maintain the Policy in force beyond the date when the next payment becomes due, except as to the benefits provided for herein after default in premium payment.

1 Grace in Payment of Premiums. — In the payment of any premium under this Policy, except the first, a grace of thirty-one days without interest will be allowed, during which time the Policy will remain in force. . . .

“Reinstatement. — If this Policy be lapsed for non-payment of premium it will be reinstated at any time after the date of lapse upon written application and payment of arrears of premiums with interest at the rate of five per cent per annum, together with the reinstatement of all indebtedness, provided such indebtedness be not greater than the loan value of this Policy at the time of application for such reinstatement, and provided evidence of the insurability of the Insured satisfactory to the Company be furnished. . . .

“Loan Provisions. — If this Policy be continued in force, the Insured may borrow from the Company, without the consent of the Beneficiary, if any, named herein, with interest at the rate of six per cent per annum, payable at the end of each policy year, on the sole security of this Policy, an amount up to the limit of the Cash Surrender Value hereinafter, specified after deducting therefrom all other indebtedness, on account of this Policy. . . . Failure to repay any such indebtedness or to pay interest shall not avoid the Policy unless the total indebtedness thereon to the Company shall equal or exceed the loan value at the time of such failure, nor until one month after notice to that effect shall have been mailed by the Company to the last known address of the Insured, of the person to whom the loan was made. . . .

“Paid-up Life Policy. — If this Policy, after being in force three full years from its date, shall lapse or became forfeited for the non-payment of any premium on the date when due, ” . . . (Then follow other provisions not material here.)

“Automatic Extended Insurance. — If. this Policy, having lapsed or become forfeited as specified in the clause, ‘Paid-up Life Policy’ above, be not surrendered for its Cash Value or for a Paid-up Life Policy, the Company will put in force in lieu of this Policy, without any action on the part of the Insured, a non-participating Paid-up Term Policy for the Face Amount of Insurance under this Policy with no provision for Disability or Accidental Death Benefits, the date of such Paid-up Term Policy to be the due date as specified on the first page hereof to which premiums on this Policy have been paid, and to continue in force for the term indicated in the following table; provided, however that the Insured shall not have the right to borrow on such Policy and that if there be any indebtedness to the Company on account of this Policy the amount of such Paid-up Term Policy shall be the Face Amount of Insurance under this Policy less the amount of such indebtedness, with no provision for Disability or Accidental Death Benefits, and the term for which such Paid-up Term Policy shall run shall be changed to that term for which the Cash Surrender Value of this Policy herein specified, after deducting such indebtedness, will carry the modified amount at Single Premium Term rates.” Then follows the table referred to in the policy, which shows that a policy for $1,000 that has been in force five years, such as the one in question, has a cash surrender value of $31, and that if there is “Automatic Extended Insurance” as provided in the paragraph last quoted, it will continue that kind of a policy in force for one year and 337 days.

From this it follows that the policy in question, being for $5,000 and being in force five years, would have a cash surrender value of $155, and if no premiums were paid after five years and there was no indebtedness of Brueseh, the insured, to the company the insurance would be automatically extended for the face of the policy, $5,000, for one year and 337 days from and after July 13, 1930, or until June 14, 1933. But in the instant case the evidence shows that there was an indebtedness of $126.41 against the policy. It appears from the evidence that no one but an actuary could tell the length of time the insurance would be automatically extended, and the testimony of the actuaries is to the effect that deducting the $126.41 from the cash surrender value of $155 leaves $28.59; that there was a dividend of $22.25 to be added to this, making $50.84, which is the amount available for premium to be applied for extended insurance. Witnesses testified that this sum would pay the premium on the policy in question for 241 days. Computing this period of 241 days from July 13,1930, we find that the policy would be extended to March 11, 1931, so that the automatic extended insurance lapsed 10 days before Brueseh’s death. • •

But plaintiff contends that even if it be conceded “that if the period of extended insurance was cut down by a loan on the policy, this period was governed by the loan provisions of the policy and could not expire until one month after notice to such effect had been given in accordance with these provisions, and, no notice having been given, the policy was still in force at the time of his death.” In support of this counsel then quotes part of the “Loan Provisions,” of the policy as follows: “Failure to repay any such indebtedness or to pay interest shall not avoid the policy unless the total indebtedness thereon to the company shall equal or exceed the loan value at the time of such failure, nor until one month after notice to that effect shall have been mailed by the company to the last known address of the insured.” We think this argument is unsound. In the.instant case it is not claimed that the policy lapsed for the failure to pay the loan of $126.41, .but for failure to pay the premium which became due July 13, 1930; and there is no provision in the policy that we have been able to find that requires any notice to the insured that the policy would lapse or be forfeited unless the premium is paid. The provisions of the policy in this respect are, we think, self-executing — that unless the premium is paid within 31 days after it becomes due, the policy automatically lapses.

Plaintiff further contends that since it was a question of fact for the jury to decide whether plaintiff had tendered the amount of the loan, as testified to by her, and the jury having found in her favor, “the insured was entitled to extended insurance for a period long beyond the date of his death. ’ ’ The loan provision of the policy we have above quoted provides that in case money is borrowed by the insured on the policy, the loan is payable at the end of each policy year. No provision of the policy is pointed out — and we have been unable to find any — that would extend the life of the policy if the loan were tendered or even paid. The policy lapsed-for the non-payment of the premium due July 13, 1930, and this not having been paid or an offer made to pay within the period of grace provided by the policy, the policy lapsed and could not be reinstated after it had lapsed unless there was evidence furnished to the company of the insurability of the insured; that is the express provision of the policy with reference to reinstatement which we have above quoted. It was not sought to reinstate the policy. Furthermore, the evidence is that at the time plaintiff took the matter up with defendant’s representative with a view of paying the loan, the insured was very ill and died a few weeks thereafter.

We think we ought to say here it is astounding that the representatives of the defendant company, to whom plaintiff went for information as to the policy, could give her no information; that no one could tell her what her rights were without applying to the home office. One of the men to whom she went had been employed by the defendant company for more than 24 years. Just why a policy of this character is so worded that no person but one in the home office could tell what it means, we are unable to understand. But we must pass on the evidence' as it appears in the record before us.

Complaint is made by defendant that plaintiff was not a competent witness, and in support of this counsel say that when plaintiff testified she was the wife of the insured and that he died March 11,1931, ‘1 They objected to any further testimony because it would be incompetent under sections 1 and 5 of the Evidence Act.” We think this is a misapprehension of the law. If plaintiff was incompetent because she was the wife of the insured, it was not by virtue of any statute but by the common law. The statute only removed some of the common law disabilities of witnesses. Schreffler v. Chase, 245 Ill. 395. Under ,the common law plaintiff, being a party to the suit, could not testify. This disability was removed by section 1 of chapter 51, Ca-hill’s 1931 Statutes. Section 5 of that chapter narrows the provisions of section 1, which. permits a party to an action to testify by limiting the cases in which a husband and wife may testify for or against each other as' to any transaction or conversation occurring during the marriage, whether called as a witness during the existence of a marriage or after its dissolution, except of certain cases. But that section is not applicable here. Plaintiff was not testifying for or against her husband nor to any transaction or conversation which occurred during or after the marriage. She was testifying for herself alone. The policy was made payable to her and obviously she had a right to testify.

Since we hold the uncontradicted evidence shows that the policy lapsed for the- non-payment of premium before the assured died, no recovery can be had on the policy, and the court should have directed a verdict at the close of all the evidence, as requested by defendant. In view of this holding, the objections made to certain instructions are unimportant. The judgment of the superior court of Cook county, is reversed with a finding of fact.

Judgment reversed with a finding of fact.

McSurely, P. J., concurs.

Hatchett, J., dissents.

Finding of fact: We find as a fact that the policy sued on lapsed for the non-payment of dues prior to the date of the death of the insured.


source: Caselaw Access Project

author: Mr. Presiding Justice Edwards

license: Public Domain

text:
    Henry Baumeister, Appellant, v. Margaret Bowers, Appellee.

      Opinion filed June 28, 1933.
    John W. Freels, for appellant; Bopiequet & Freels, of counsel.
    Kramer, Campbell, Costello & Wiechert, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

Appellee brought suit in the circuit court of St. Clair county against appellant to recover for damages to person and property sustained while riding as a guest in the latter’s automobile. There was a verdict and judgment in the sum of $1,500, from which appellant has appealed.

The parties to. the action were the only eyewitnesses to the accident, and their versions of the affair sharply conflict. The appellee, in her case in chief, testified that she, at the invitation of appellant, was riding in his automobile at about one o ’clock a. m., east on Cass avenue, in St. Louis; that he had been partaking of liquor, and that she asked him to desist from further drinking; that he was driving, and she had no part in the management of the car; that she requested him to stop the car and let her alight; that he dropped a cigarette he was smoking, and, in attempting to brush it off his clothes, he lost control of the steering wheel, pulled the machine over the curb and struck a telephone pole; that as a consequence she was injured, and certain articles of wearing apparel were ruined.

Appellant stated that he was driving easterly along such avenue, a few feet from the right-hand curb; that a west-bound automobile, rapidly driven in about the center of the street, approached him; that when about 50 feet distant, this car swung toward and headed for appellant; that to prevent a collision, he turned to the right; that the other car struck and bent his rear fender, then went on without stopping, and that he had no time to see the telephone pole before striking it.

There was testimony that directly after the accident, appellee, in the office of Dr. Thompson, stated in the hearing of the doctor that appellant was not to blame; that he had swerved his car to miss another one, and could not avoid the injury. Mr. Travers stated that she made a statement to him, which he reduced to writing (this, however, she did not sign), that appellant had swerved sharply to the right to avoid an approaching automobile, and in doing so collided with the telephone pole, and that the accident was the fault of the other machine. Mr. Hanson testified that he called at appellee’s home in company with appellant; that the accident was talked over and that she said it was not at all the fault of appellant.

Appellee,' in her case in chief, denied such statements ; however, in rebuttal, she stated that she made the declarations, but she did so at the request of appellant. She, on cross-examination, admitted that no such suggestion was made to her until after leaving Dr. Thompson’s office, which was after the time the doctor testified he heard her make the statements. Appellant denied having made any such suggestions, or that he was intoxicated. As to the latter, he was corroborated by Dr. Thompson’s testimony that he was in close contact with appellant for some time directly after the accident, and that he did not detect any evidences of intoxication.

One of the grounds urged to reverse the judgment is that the declaration charges ordinary negligence, and to recover under what is known as the “Guest Law,” it was incumbent upon appellee to show wilful and wanton misconduct on the part of appellant.

The accident occurred on June 27, 1928; suit was started on April 4,1930, while the statutory enactment, providing that no person riding as a nonfare-paying guest, shall have a cause of action against the operator of the machine, except for wilful and wanton misconduct of the latter, was approved July 2,1931. Cahill’s St. ch. 95a, IT43(b) (sec. 243-b, ch. 121, Smith-Hurd Statutes, 1931).

A statute will be given a retrospective effect only when it is manifest that the legislature intended it should so operate. Fisher v. Green, 142 Ill. 80.

We find nothing in the act to indicate that it was intended it should be retroactive, and in our opinion it does not cover causes of action that accrued prior to its enactment.

It is further urged that the verdict is contrary to the weight of the evidence, and that the court erred in not setting it aside.

The appellee’s case, as to the occurrence which occasioned the injury, rests almost entirely upon her testimony, contradicted by that of appellant. In addition, she is impeached by proof of inconsistent statements which she at first denied making, then later acknowledged, and sought to justify by saying that she made them at the instigation of appellant, however admitting that no suggestion was made to her by the latter, until after leaving the office of Dr. Thompson, and which was subsequent to the making of her statements, as testified to by the doctor.

While the settled rulé is that where the testimony conflicts, the verdict of the jury is favored and will not be lightly set aside, still if the verdict is manifestly against the weight of the evidence, the trial judge should not hesitate to set it aside and award a new trial. Belden v. Innis, 84 Ill. 78.

We think the verdict is contrary to the decided weight of the evidence, and that the court erred in overruling appellant’s motion for a new trial.

The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice O’Connor

text:
    John P. Moroney, Appellee, v. James P. Allman, Commissioner of Police, et al., Appellants.
    Gen. No. 36,915.

      MIatchett, P. J., dissenting.
    Opinion filed June 21, 1933.
    Rehearing denied July 6, 1933.
    William H. Sexton, Corporation Counsel, for appellants ; Otto F. Weiner and William V. Daly, Assistant Corporation Counsel, of counsel.
    Johntry & FitzGerald, for appellee; John H. Johntry, John O’C. FitzGerald and George F. Ort, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

May 2, 1933, complainant filed his verified hill against James P. Allman, commissioner of police of Chicago, and other city officials, to restrain them from molesting, annoying or interfering with complainant in the operation of his business in the City of Chicago. The defendants filed their appearance, and it seems to be conceded that they were represented when complainant’s motion came on for hearing before the chancellor ; an order was entered as prayed for in the bill, defendants being restrained “until the further order of this court. ’ ’ And it is to reverse this interlocutory order that defendants under the statute prosecute this appeal.

The substance of the allegations of the bill, so far as it is necessary to state here, is that complainant is the lessee of premises in Chicago for which he is obligated to pay more than $3,000 as rent; that he conducted a restaurant and public place of amusement in the premises under a license issued by the City of Chicago from August 2, 1932; that the license was issued on March 15,1932, “to keep a Public Place of Amusement and Dry Cabaret from the date thereof until the twelfth (12th) day of January, A. D. 1933”; that on August 2, 1932, the license was surrendered and exchanged for another license; that this second license authorized complainant to conduct his business in the premises until December 31, 1932; that there are 1,200 square feet on the first floor of the premises, with a seating capacity for about 250 persons, which is suitable for restaurant and cafe purposes, and about 400 square feet available for dancing; that food and soft drinks are served at tables; that at all times complainant conducted his business in an orderly manner and at no time was there any complaint made that the business was conducted improperly; that complainant laid out and incurred expenses of approximately $50,000 to improve the premises and render them proper for the conduct of such business; that he had a right to renew his lease for another year at a rental of $350 a month; that on or about January 12, 1933, he applied to the proper city officials for a renewal license for the ensuing year and paid therefor to the city collector $250, which sum is still retained by the collector; that he has complied with all the ordinances and laws in the conduct of his business and in the application for renewal of license; that his application was turned over to the commissioner of police for investigation, who retained it without objection until February 20, 1933, when the application was refused and the renewal of the license denied; that the commissioner of police and other officials advised the city collector “not to issue a license of the character (requested) to John Moroney for the premises 8301 South Chicago Avenue, nor to any other person, for said premises ’ ’; that the building on the premises conforms in all respects to the ordinances of the city and is suitable for such business as is conducted by complainant.

It is further alleged in the bill that in March, 1933, complainant filed a petition against the city officials praying that a writ of mandamus issue commanding them to issue to him a license so that he might continue to conduct his business in the premises; that he alleged in his petition substantially the same facts as those alleged in his bill; that defendants joined issue in the mandamus case and the matter was heard before the court without a jury, a jury having been waived, and a finding and judgment were entered in that case awarding a writ of mandamus, from which they prosecuted an appeal to this court; that afterward, on or about April 15, 1933, certain city police officers came to complainant’s place of business and demanded that he produce his license authorizing him to conduct the business; that he advised them of the facts in the matter but that the police thereupon threatened to close the place of business since complainant was operating without a license; that afterward complainant “was served with an arrest notification” and charged with operating a public place of amusement without a license, and he was required to appear in such matter before the municipal court of Chicago; that he was advised he must close his place of business since he had no license, and that police officials were stationed at the three entrances to his place of business, who denied entrance to complainant’s patrons and stated that if such patrons did enter the premises they would be subject to arrest.

The temporary restraining order having been issued on the face of the bill, raises the question whether the bill was vulnerable to a general demurrer.

Defendants contend that the bill failed to state a cause of action because, if the complainant were entitled to a license, his remedy was by an action for a writ of mandamus and not in equity for a restraining order. In support of this the cases of Ruban v. City of Chicago, 330 Ill. 97; Klever Karpet Kleaners v. City of Chicago, 323 Ill. 368; Grace Church v. City of Zion, 300 Ill. 513; Rockford Amusement Co. v. Baldwin, 252 Ill. App. 1; Vitagraph Co. of America v. City of Chicago, 209 Ill. App. 591, and other cases are cited.

If the action for a writ of mandamus, being an action at law in which the parties are entitled to a jury trial (Wilke v. City of Chicago, 212 Ill. App. 414; People of Illinois v. Czaszewicz, 295 Ill. 11) furnished Moroney with a plain, adequate, complete and prompt remedy, it would deprive a court of equity of jurisdiction and the bill would not lie; but if the mandamus-case did not afford a complete and adequate remedy, equity would take jurisdiction.

In the Ruban case (330 Ill. 97), a bill .was filed to restrain the city from enforcing an ordinance regulating laundries. A demurrer was sustained and the bill dismissed. On appeal to the Supreme Court the decree was affirmed. In that case an ordinance required a person who desired to conduct a laundry to obtain a license. The complainant laundries apparently made no attempt to obtain licenses but contended that the ordinance was invalid. The court held their remedy was by mandamus. It is obvious that this case is not in point. In the instant case there is no contention that the ordinance requiring a license was invalid. A license had been obtained by complainant, as the ordinance provided, and he was seeking its renewal. Upon refusal of defendants to renew his license he filed a petition for a writ of mandamus, which was heard on its merits and the writ awarded, but the city appealed.

So in the Klever Karpet Kleaners case (323 Ill. 368), where complainants filed a bill for an injunction to enjoin the city from enforcing an ordinance which required a license as a prerequisite to the conducting of a dry cleaning business on the ground that the ordinance was void. The court held the ordinance was valid. Obviously that case is in no way analogous to the case before us.

In the Grace Church case (300 Ill. 513), a bill was filed to enjoin the city from enforcing a building ordinance which required that a permit be issued authorizing the erection of a church building. In that case complainant began to construct a building without such permit. Afterward the plans of the church were submitted to the city officials, who refused the permit. The bill was dismissed and the Supreme Court affirmed the decree. It was contended that the ordinance was invalid and that there was an adequate remedy by mandamus to compel the issuance of a permit. The court said that complainant (p. 518) “would not be justified in proceeding with the erection of a building without the permit, which the city had power to require and which the mayor had no discretion to refuse if the ordinance was complied with. Equity would not interfere, because of the existence of a complete and adequate remedy at law.” In that case the ordinance required that a permit be obtained before beginning to construct a building. This was not done. But it was contended that the ordinance was invalid. It is clear that the facts in that case are in no way similar to the facts in the case before us.

In the Rockford Amusement Co. case (252 Ill. App. 1), it appeared that the amusement company had obtained a judgment awarding a writ of mandamus commanding the officials of the county to issue a license to the amusement, company to operate a dance hall and road house. The defendants in that case appealed from the judgment which the court in its opinion said was then pending before them on appeal. After the appeal was perfected the amusement company filed its bill for an injunction to restrain the county officials from interfering with the complainant in conducting its dance hall and road house “until the determination of the appeal in that case.” An order was entered by the trial court granting a temporary injunction which was reversed on appeal by the Appellate Court. The court said that the remedy by mandamus was complete and adequate, that the complainant could not operate a dance hall and road house without a license, which the law required, and since the remedy by mandamus was complete and adequate, equity was without jurisdiction. This opinion was handed down February 21, 1929. Six days prior to that time the same court handed down an opinion in the mandamus case where the judgment of the trial court awarding the writ was affirmed. (251 Ill. App. 599.) In the latter case -it appeared that the amusement company was organized as a corporation in February, 1928; that Thomas W. Milner was the president and general manager of that company, and before the incorporation' Milner was the owner of and operated a dance hall and cafe in Gilford township, Winnebago county'; that May 11, 1927, Milner applied for a license to operate a dance hall at that place and that a license was granted to him by the county officials; that June 18, 1927, the building was destroyed by fire and immediately afterward Milner began to rebuild the dance hall and later completed it, after which he conducted the dance hall until February 21, 1928, when the corporation was formed; that the license issued to Milner would expire May 11, 1928, and in anticipation of such expiration the corporation applied for a renewal of the license. The petition alleged that the license was denied- because the defendants “had made a rule, and had adopted a policy of refusing all dance hall permits in Winnebago county, and were following said rule and policy.” As stated, the trial court awarded the writ of mandamus 'and its judgment was' affirmed by the Appellate Court. In that case the corporation was applying for its license for the first time although theretofore the president of it, acting in his individual capacity, had had a license to conduct his business at the same place. In that case there was no showing that the defendants in the mandamus case were violating the judgment of the trial court in awarding the writ, while in the instant case complainant was applying for a renewal of the license which had theretofore been issued to him. And after he had obtained a judgment of the trial court awarding him a writ of mandamus, the defendants appealed and shortly thereafter were proceeding to stop complainant from continuing his business in which he had a large investment. So that the facts in that case are not entirely analogous to those in the case before us. In the opinion rendered by the court in the injunction case (252 Ill. App. 1), the case of Grace Church v. City of Zion, supra, is cited. From what we have said, we think it clear that the Grace Church case is not in point. The court there also cites the case of Vitagraph Co. v. City of Chicago, 209 Ill. App. 591. In that case an interlocutory order was entered restraining the city officials from interfering with the exhibition of a moving picture film “until the final adjudication of an appeal from a judgment in a mandamus proceeding awarding the writ to compel the issuance of a permit for such exhibition. ’ ’ The court there stated that the substance of the complainant’s right to relief in equity was that it had the right to exhibit the picture following the advertising of it and to prevent complainant from doing so would result in great financial loss. The court there quoted from Rees v. City of Watertown, 19 Wall. (U. S.) 107, as follows: 6 ‘ The remedy is in law and in theory adequate and perfect. The difficulty is in its execution only. The want of a remedy and the inability to obtain the fruits of a remedy are quite distinct. ’ ’ The court then cites the cases of Klinesmith v. Harrison, 18 Ill. App. 467; City of Chicago v. O’Hare, 124 Ill. App. 290. Continuing the court said (p. 593): “Complainant here resorted to such remedy and obtained the writ. The city or its proper officer, exercising an unquestioned right, appealed. It is conceded such appeal operated as a supersedeas. Manifestly, to avoid its consequence, this proceeding was instituted for the injunctive relief given which operates to nullify the effect of the supersedeas and to prevent an enforcement of the city’s ordinances against appellees.” The court also said that no property right wTas involved, because plaintiff had been deprived only of the privilege which the municipal authorities might grant or withhold, citing People v. Cregier, 138 Ill. 401.

In the Cregier case it was sought to compel Mayor Cregier of Chicago to issue a license to keep a dram-shop in Hyde Park. In that case it appeared that before Hyde Park was annexed to Chicago it had enacted an ordinance to prohibit the operation of dram-shops in certain districts as the village officials might determine-. It was contended that the ordinance was unreasonable and invalid, but the Supreme Court sustained the ordinance. As stated by the court in the Vitagraph Co. case, the ordinance involved in the Cregier cáse authorized the officials in their discretion to grant or withhold dram-shop licenses. It is obvious that in such case the refusal to grant one a license to conduct a dram-shop in Hyde Park did not deprive him of any right, for he had no such right; while in the instant case, if complainant complies with all the laws and ordinances he is entitled, as a matter of right, to a license. Under such an ordinance the city officials cannot arbitrarily withhold the license as they see fit. Zanone v. Mound City, 103 Ill. 552; People v. Busse, Mayor, 231 Ill. 251. In the Vitagraph ease complainant was applying for a license, not for the renewal of one, such as is the fact in the case before us.

We are of the opinion that in the instant case the complainant had a large personal property right involved. He had a large investment, $50,000, and a valuable lease which he had the right to renew. He was conducting his business in a proper manner. He had conducted the same business in the same premises under a prior license issued by defendants, which he sought to renew. No complaint is made in the record before us that the business was not conducted in a lawful manner. On the contrary, the allegations of the bill are that the business was conducted in accordance with all laws and ordinances, and that no complaint had been made by anyone that the business was not properly conducted. We are clearly of the opinion that complainant’s remedy by mandamus was wholly inadequate. This is demonstrated by the fact that complainant, when the license was refused him, filed his petition for a writ of mandamus, and although there was a hearing on that matter on the merits and the writ was awarded, the city appealed, as it had a right to do, yet the officials are insisting that complainant cease conducting his business because he had no license; and it is obvious that such business if .closed even for a short period would be practically ruined. The remedy at law was clearly inadequate. If defendants’ contention that complainant had an adequate remedy at law by mandamus were sustained, the maxim ubi jus ibi remedium would be wholly meaningless and farcical. It having been adjudicated in the mandamus proceeding that complainant was entitled to a license, equity is not so feeble as to fail to give him relief and prevent the ruination of his business pending the determination by this court of the appeal of the city from the judgment in the mandamus case. And there is abundant authority to sustain this contention. The balance of convenience or the relative inconvenience to be caused the parties gives equity jurisdiction. It is the law that where the complainant’s “right is doubtful or his title is in dispute a perpetual injunction cannot be obtained until the doubt is removed by a proper proceeding and the right made certain; the only proper relief which may be granted in such cases being a temporary injunction maintaining the states quo until the right or title in question is established.

“It is not sufficient ground for refusing a preliminary injunction that it is not absolutely certain that complainant has the right that he claims or that the injury feared will occur; and even though complainant’s right to permanent relief is doubtful, it may be proper to maintain the status quo pending the determination of his right, the issuance of a temporary injunction in such cases depending chiefly upon the relative inconvenience to be caused the parties. Thus where there is a prospect of irremediable injury, even though the title is disputed, a temporary injunction may issue at once, without waiting until a trial at law is had. The injunction may be granted, although an action at law has not been commenced, and the complainant or defendant may be ordered to institute a suit at law immediately.” 22 Cyc. 750-752; see, also, 16 Am. & Eng. Ency. of Law, 2nd ed., p. 363; Erhardt v. Boaro, 113 U. S. 537; 32 Corpus Juris, par. 17, pp. 38-39; Ashurst v. McKenzie, 92 Ala. 484; Ches. & Ohio Canal Co. v. Young, 3 Maryland, 480; Wood v. City of Brooklyn, 14 Barb. 425; Bishop v. Baisley, 28 Oregon, 120; Kane v. Vanderburgh, 1 Johnson Chancery Rep. 10; Lodor v. McGovern, 48 N. J. Eq. 275; Freer v. Davis, 52 W. Virginia, 1; Griffith v. Hilliard, 64 Vermont, 643; 18 Eng. Ch. Rep. (4 M. Y. L. N. E. & C.) p. 298.

In 16 Am. & Eng. Ency. of Law, p. 363, it is said:

‘ ‘ On an application for an interlocutory injunction the court will always consider the balance of convenience; in other words, it will consider whether a greater injury would be done by granting an injunction than would result from a refusal.”

In Erhardt v. Boaro (113 U. S. 537), it was held that “where irremediable mischief is being done or threatened, going to the destruction of the substance of the estate”, by the person in possession, and the property is in litigation in an action at law, an injunction will issue to prevent the mischief. In that case a suit in equity ancillary to an action for the possession of a mining claim was brought to restrain the commission of waste by the defendants pending the determination of the action at law. The bill prayed that the defendants be restrained “from mining on the claim, or extracting ore therefrom, or removing any ore already extracted, until the final determination of the action at law.” A preliminary injunction was ordered but after trial of the action the judgment being in favor of the defendants, the injunction was dissolved and the bill dismissed. The court there said (p. 538): “It was formerly the doctrine of equity, in cases of alleged trespass on land, not to restrain the use and employment of the premises by the defendant when the title was in dispute, but to leave the complaining party to his remedy at law. A controversy as to the title was deemed sufficient to exclude the jurisdiction of the court. In Pillsworth v. Hopton, 6 Vesey, 51, which was before Lord Eldon in 1801, he is reported to have said that he remembered being told in early life from the bench, ‘that if the plaintiff filed a bill for an account and an injunction to restrain waste, stating that the defendant claimed by a title adverse to his, he stated himself out of court as to the injunction. ’ This doctrine has been greatly modified in modern times, and it is now a common practice in cases where irremediable mischief is being done or threatened, going to the destruction of the substance of the estate, such as the extracting of ores from a mine, or the cutting down of timber, or the removal of coal, to issue an injunction, though the title to the premises be in litigation. The authority of the court is exercised in such cases, through its preventive writ, to preserve -the property from destruction pending legal proceedings for the determination of the title.” The court held that as a judgment in the action at law in favor of the defendant had been reversed, the injunction should be restored.

In Ashurst v. McKenzie, supra (92 Ala. 484), it was held that where each party asserts a legal title to land, and the defendant asserts prior possession in himself long enough to confer a title under the statute of limitations, he will be allowed a reasonable time to assert and maintain his title by an action at law before an injunction will be issued.

In Chesapeake & Ohio Canal Co. v. Young, 3 Md. 80, it was held that where title to property is in dispute, a temporary injunction is sometimes granted until the title is tried at law.

In Wood v. City of Brooklyn, 14 Barb. 425, the court said (p. 433): “The question is, whether the considerations I have mentioned entitle the plaintiff to an injunction until his case can be decided after a full investigation. So far as it relates to any matters other than an infringement of his rights under his license, I cannot interfere. . . . But the plaintiff presents a different case, when he complains of the interruption to his lawful pursuits. He alleges that the business by which he earns a livelihood for himself and his family, is seriously and constantly injured; that he apprehends from the course pursued by the officers of the city, that he may be illegally arrested on a Sunday, while engaged in his lawful pursuits, and confined, without the privilege of procuring bail, until the next day, and then be subjected to a hasty trial, without the benefit of a constitutional privilege, and all under an illegal ordinance. For some of these wrongs the law would afford him adequate redress, but no sufficient compensation could be made for family destitution or disreputable imprisonment. The defendants must be enjoined from enforcing so much of their ordinance, ’ ’ etc.

In the instant case plaintiff was threatened with arrest and his patrons were ordered not to go into his establishment. He has an adjudication in the mandamus case which was tried on its merits, that he is entitled to his license but on account of the delay in getting his case before the Appellate Court and having it disposed of, he has no adequate relief unless the officials are enjoined until the mandamus case is disposed of.

In Bishop v. Baisley, 28 Ore. 120, it was held that equity will interfere by injunction to restrain a continuing trespass on a mining claim by the removal of valuable ores, at the suit of one claiming to be the owner of the realty, though out of possession, where an action at law is pending to determine the title, and that in the same cases the trespass would be enjoined even though no action at law had been commenced. That the injunction would be only temporary pending the trial of the action at law to determine the title.

In Kane v. Vanderburgh, 1 Johnson Ch. Rep. 10, it was held that an injunction to stay waste would be granted although no suit' at law was then pending to determine the title to the land on which the waste was being committed. Chancellor Kent was a member of that court.

In Lodor v. McGovern, 48 N. J. Eq. 275, it was held that the owner of land abutting on a street which was being paved in an imperfect manner had a standing in equity to restrain the common council of the city from paying for the work in which the landowner would be assessed for part of the costs; that the injunction would be only temporary until the contractor’s claim against the city could be determined by a jury in an action at law. The court there said (p. 280): “We are further of opinion that the city should be enjoined from making such payment . . . until such injunction shall have been dissolved or the appellant shall have established his right thereto by a suit at law. ’ ’

And the Supreme Court of West Virginia in Freer v. Davis, 52 W. Va. 1, held that a court of equity had no jurisdiction to settle the title and boundaries of lands between adverse claimants but when it appeared that irreparable mischief was being done to the real estate, such as the extraction of gas and oil, and the title of the land being in dispute a court of equity would enjoin the trespass pending the determination of the title to the land in a court of law. The court there discusses the case of Erhardt v. Boaro, 113 U. S. 537, supra, and quotes from the opinion in that case.-

To the same effect is Griffith v. Hilliard, 64 Vermont 643, where it was held that a court of chancery would enjoin the cutting of timber upon premises at the instance of one who claimed title to the land before the title had been established in a court of law, and in support of this holding the court refers to Erhardt v. Boaro, 113 U. S., supra.

In Harman v. Jones, 18 Eng. Chanc. Rep. (4 Mylne & Craig) 298, it was held that the intervention of a court of equity by interlocutory injunction between two parties who are at issue upon a legal right, is solely to protect the property in dispute and until the legal right shall have been determined. In that case the defendant was enjoined “until the further order of the court.” The Lord Chancellor in delivering the opinion of the court said (p. 300): “The proper office of the court, upon an application of this kind, is not to ascertain the existence of a legal right, but solely to protect the property, until the right can be determined by the jurisdiction to which it properly belongs. It is the duty of this court to confine itself within the limits of its own jurisdiction; and, therefore, it is a fundamental error in an order of this kind, to assume finally to dispose of legal rights, and not to confine itself to protecting the property pending the adjudication of those rights by a court of law. ’ ’ This opinion was filed in 1841.

From the foregoing authorities we are of opinion that where parties are at litigation in an action at law, a court of equity may, in a proper case, issue an injunction to restrain one of the parties from practically destroying the substance of the action until the action is disposed of.

So, in the instant case, it appearing from the allegations of the bill which, on this record are admitted to be true, that complainant is seeking a renewal of his license; that he has complied with all the law and ordinances; that he is conducting his business properly; that upon refusal of the license by the city officials he filed a petition for a writ of mandamus, and upon a hearing of the merits of that case judgment was entered awarding him the writ from which the city prosecutes an appeal, and pending the disposition of the appeal threatened to forcibly close up complainant’s business, it is obvious that he has no adequate remedy at law because if his business is closed up it will be substantially destroyed; in such case equity will intervene to enjoin the officials until the determination of the mandamus proceeding.

The order of the superior court of Cook county appealed from is affirmed.

Order affirmed.

McSurely, J., concurs.

Hatchett, P. J., dissents.


author: Mr. Presiding Justice Sullivan

text:
    Bertha Kreger and Alice Orloff, Appellees, v. Helena Hart, Appellant.
    Gen. No. 36,356.
    Opinion filed June 30, 1933.
    Rehearing denied July 11, 1933.
    Otto C. Rentner and Henry F. Antes, for appellant.
    Louis P. Miller, for appellees.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

This appeal seeks the reversal of a decree of the circuit court finding that a trust had been created by the transfer of certain shares of stock of which he was sole owner by Adam Schaetzlein, the father of plaintiffs and defendant, to Helena Hart, defendant, and himself, in joint tenancy, and ordering defendant to execute the trust by dividing equally between herself and her sisters Bertha Kreger and Alice Orloff, plaintiffs, the securities so transferred, and also ordering an accounting of the trust property.'

Plaintiffs’ amended bill of complaint alleged that Adam Schaetzlein died testate November 8, 1929, leaving him surviving plaintiffs and defendant; that for many years prior to his death he was the owner of the following shares of capital stock: 60 shares prior lien of the Middle West‘Utilities Company, 56 shares six per cent preferred of the Southwestern Grhs and Electric Company, 15 shares seven per cent preferred of the Central States Power and Light Corporation and 40 shares prior lien of the Midland Utilities Company; that on or about July 4, 1926, and until on or about December 29, 1928, defendant made a continuing offer to accept from her father the aforementioned shares of stock, to hold them as trustee and to distribute them after his death in such proportions as his last will and testament might provide, or in the absence of any such provision, to divide them equally between his heirs; that in consideration of defendant’s undertaking and agreement to administer the stock according to such arrangement for distribution, her father caused the shares of stock to be transferred to himself and defendant in joint tenancy in trust for his sole benefit during his lifetime and after his death for the benefit of the persons designated in his will, and upon his failure to so designate they were to be divided equally between plaintiffs and defendant; that the sole consideration for his transfer of the stock was her agreement to execute the trust; that defendant received the title to the securities and held same as trustee for herself and plaintiffs; that Schaetzlein, by his will, designated plaintiffs and defendant beneficiaries of his estate, share and share alike; that, although plaintiffs have demanded that defendant execute the trust by distributing the shares of stock and their proceeds according to the terms of the trust, she refused to do so and claims the same to be her individual property.

Defendant’s answer denies that she holds any property in trust for herself and plaintiffs; avers that the shares of stock held by her in joint tenancy with her father became her sole property upon his death by reason of her right of survivorship; contends that plaintiffs failed to show by clear, convincing, unmistakable evidence the intention of Adam Schaetzlein to create the trust as alleged for the equal benefit of plaintiffs and defendant; and that the evidence shows conclusively that the transfer of the securities to defendant by her father was a gift to her.

Plaintiffs contend that defendant procured the transfer of the securities to herself and her father in joint tenancy through false representations, assurances and promises, intending to prevent a testamentary bequest to them; and that, inasmuch as she refused after the death of her father to comply with her promises, and claims to hold the property in her own right, equity will enforce the obligation assumed by her by impressing a trust upon the property in favor of plaintiffs, whom she seeks to defraud.

The evidence disclosed that Schaetzlein executed orders transferring the aforementioned stock to himself and defendant in joint tenancy and that certificates of stock were issued in the names of defendant and her father in compliance with the terms of the orders; that these .certificates were continuously in the possession of defendant from the time of their issuance until her father’s death and thereafter until she surrendered them for the purpose of having certificates issued in her own name; that at the time of the joint tenancy transfer she and her father signed a dividend order directing that the dividends on the stock be paid to bim during his lifetime; that defendant transacted much of her father’s business for him, especially during the last few years of his life, and that shortly before his death he made a new will revoking his former will and naming the First National Bank as executor of his estate. His last will and testament which was admitted to'probate contained the following provision:

“I give, devise and bequeath to my three daughters all my estate, real and personal, to be divided between them, share and share alike.”

It appeared that Adam Schaetzlein, the father of the parties to this proceeding, lived with Bertha Kreger, one of the plaintiffs, at the time of the death of his wife in July, 1926, and that he continued to live with her until his death; that he was between 77 and 78 years old when his wife died and nearly 80 years old at the time of his death; that July 4, 1926, a few days after the death of Mrs. Schaetzlein, defendant, Adam Schaetzlein, plaintiffs, and a daughter of Bertha Kreger, met for dinner at the Schaetzlein-Kreger home. Bertha Kreger and Alice Orloff, plaintiffs, and the daughter of Bertha Kreger, testified with slight variation, but all substantially to the same effect that on that occasion, after the subject of the disposition of Schaetzlein’s property had been mentioned, defendant stated that she had consulted with a Mr. Horan, who suggested that the payment of inheritance taxes on her father’s estate might be avoided or minimized by the transfer of his stocks to defendant and himself in joint tenancy, and that if her father made such transfer she would divide the stocks equally with plaintiffs after her father’s death. Plaintiffs further testified that from the time of their mother’s death defendant persisted in urging her father to transfer the stocks to her in joint tenancy with him to avoid the payment of inheritance taxes and to facilitate the disposition and division of the securities after his death; that between Christmas, 1928, and the following New Tear’s day, defendant insisted that her father execute the agreement making her a joint tenant with him of the title to the stocks for the same reasons heretofore stated, and that when defendant originally importuned their father to make the transfer he said “No,” and that in answer to her subsequent demands he said he would look into the matter.

Charles L. Mahoney, a- reputable member of the Chicago bar, who had previously represented defendant’s father and was a disinterested witness, testified that in the spring of 1928, a day or two after her father had visited his office, defendant (apparently having her father under surveillance) visited him and inquired if her father had made a new will, and that he told her that her father had discussed with him the subject of his will and stated that his children,, were quarreling about the executrix named in the then existing will, who was defendant. This witness further testified that defendant stated that she thought it would be a good thing to have her father fix his stock so it would go to her at his death and it could be distributed by her without the payment of inheritance tax; that he, after inquiring and being advised as to the probable value of her father’s estate, told her he did not see the necessity of any transfer of her father’s stock under the circumstances.

Defendant in her testimony denied the testimony of plaintiffs’ witnesses, asserting that she never at any time urged or attempted to persuade her father to execute the joint tenancy agreement with her for the purpose of avoiding the payment of inheritance taxes, and that she never promised him that she would divide the shares of stock equally between plaintiffs and herself after his death. No effort was made by her in her testimony to explain the circumstances attending the joint tenancy transfer of the stocks or to advance any reason why her father desired to bestow on her after his death the title and ownership of the stock to the exclusion of her sisters.

Anna Richter was the only other witness produced in defendant’s behalf, and her testimony was apparently offered for the purpose of showing the reasons and motive ..that actuated Schaetzlein in making the transfer of stock to her in joint tenancy with him. The testimony of this witness, however, was so improbable, extraordinary, and fanciful that the master in chancery, to whom the cause had been referred, and the trial court, were fully justified, in our opinion, in disregarding it in toto.

The evidence in this cause is not only clear and convincing, but it is conclusive, that the defendant embarked on a well charted course of deception and cajolery to induce her father to transfer the securities heretofore described to defendant and himself in joint tenancy, so that she would be the sole beneficiary of same in fraud of the rights of her sisters, who with herself were the only heirs of Adam Schaetzlein. It also clearly shows that beginning immediately after her mother’s death, and for a period of almost two years, she sought to prevail upon her father to make the desired transfer by falsely representing to him that by so doing his estate would avoid the payment of inheritance tax and that such a transfer of his certificates of stock would facilitate their distribution by her, inasmuch as she was the executrix under his then existing will; and that she promised, if he made such transfer, she would, after his death, divide the shares of stock equally with her sisters, the plaintiffs.

No contention is made by defendant that her father received any consideration from her for including her in the joint tenancy title to the stock, and we are convinced that she finally prevailed upon her aged and infirm father to make the • transfer only through artifice and her persistence in falsely representing to him, that under all the circumstances, it was the best thing for him to do to conserve his estate and deceiving him into believing that after his death she would divide the securities equally with her sisters. The record discloses no consideration for the joint tenancy transfer to her except her agreement to share the stock with her sisters after their father’s death. His intention that .the stock sould be divided equally between his daughters is manifested by his will, as well as by the clear preponderance of all the evidence.

Defendant urges that, inasmuch as Adam Schaetzlein did not in appropriate language expressly create a trust in the securities for the benefit of plaintiffs, the transfer to her must be held to be a gift inter vivos. There is no merit in this contention. Plaintiffs’ theory is not that an express trust was created by their father, but that a court of equity will raise a trust, by construction, out of the acts, intentions and relations of the parties, and the facts and circumstances of the case, and will not permit one who has obtained the legal title to property through intentional false representations and fraudulent promises to profit by his deceit to the detriment of the intended beneficiary.

' In Larmon v. Knight, 140 Ill. 232, 236, it was held whenever a person acquires the legal title to property by means of an intentionally false and fraudulent verbal promise to hold the same for a certain specified purpose and, having thus fraudulently obtained the title, he retains, uses and claims the property as absolutely his own, the whole transaction by means of which the ownership is obtained will be treated in equity as a scheme of actual deceit, and under such circumstances a court of equity will treat the person so acquiring the legal title as a trustee and decree him to hold the title for the benefit of the true beneficiaries.

The courts of this and sister states have consistently held that whenever a person obtains a legal title to property, which he ought not to have secured under the rules of equity and good conscience, by means of fraud, a court of equity will impress a trust on such property in favor of those intended by the donor to be beneficiaries of same.

In Stahl v. Stahl, 214 Ill. 131, 140, 141, the Supreme Court in the following language adopted the rule laid down in Pomeroy’s Equity Jurisprudence;

“ ‘Whenever a person procures a devise or bequest to be made directly to himself, — and thereby preventing, perhaps, an intended testamentary gift to another —through false and fraudulent representations, assurances or promises that he will carry out the original and true purpose of the testator, and will apply the devise or bequest to the benefit of a third person who is the real object and who would otherwise have been the actual recipient of the testator’s bounty, and after the testator’s death he refuses to comply with his former assurances or promises but claims to hold the property in his own right and for his own exclusive benefit, in such case equity will enforce the obligation by impressing a trust upon the property in favor of the one who has been defrauded of the testator’s intended gift, and by treating the actual devisee or legatee as a trustee holding the mere legal title, and by compelling him to carry the trust into effect through a conveyance to the one who is beneficially interested. ’ We think it can make no difference whether the title is obtained by will or by deed, and see no difference, in principle, between the case stated by the author and the case at bar.”

And in Ahrens v. Jones, 169 N. Y. 555, 62 N. E. 666, where the wife obtained a deed from her husband by a promise to pay out of the property deeded $1,000 to each of his two grandchildren, and afterward refused to carry out the promise, the court said:

“This is an attempt to perpetrate a fraud not only upon her husband, who was induced to make the gift to her by reason of her promise, but also upon the plaintiff, who presumably would have been otherwise provided for by her grandfather had it not been for the defendant’s promise. It is true there is no express trust created by the deed, or by the promise made by the defendant, but, notwithstanding this, a court of equity is not bereft of power to act, for it may interpose to prevent a wrong, and for that purpose it may declare the grantee a trustee ex maleficio for the protection of the grantor’s intended beneficiaries. Such a trust does not affect the deed, but acts upon the gift, as it reaches the possession of the grantee, and the foundation for the trust is that equity will then interfere and raise a trust in favor of the persons intended to be benefited in order to prevent a fraud.”

In our opinion the cases relied upon by defendant are not in point. Those cases, it will be found upon examination, are cases in which no fraud, actual or constructive, was found to exist.

We think that the trial court was entirely warranted in holding that the stocks in question were transferred to defendant and her father in joint tenancy for the purpose of establishing a trust for the benefit of his daughters equally after their father’s death.

For the reasons stated we are of the opinion that the trial court did not err in entering the decree and it is affirmed.

Affirmed.

G-ridley and Scanlan, JJ., concur.


author: Mr. Justice G-ridley

text:
    People ex rel. Michael Lynch, Appellee, v. City of Chicago et al., Appellants.
    Gen. No. 36,383.

      Opinion filed June 30, 1933.
    Rehearing denied July 11, 1933.
    William H. Sexton, Corporation Counsel, and Francis J. Vurpillat, Assistant Corporation Counsel, for appellants.
    Michael F. Ryan, for appellee.
   Mr. Justice G-ridley

delivered the opinion of the court.

On July 10,1931, Michael Lynch, a police patrolman, filed his petition for a writ of mandamus against the City of Chicago, its mayor, its commissioner of police, certain other of its officials and its three civil service commissioners. Defendants filed a general and special demurrer. Subsequently the petition was amended by the striking out of certain words so that its prayer was for the issuance of the writ commanding defendants “to forthwith place the name of petitioner upon the roster of the department of police, and upon the department of police pay roll, as a sergeant, to the end that petitioner may at once enter upon the duties • of a sergeant in said department of police, subject to the laws, rules and ordinances pertaining to the office of sergeant.” On August 8, 1932, after hearing arguments upon the demurrer, the court overruled it and, defendants electing to stand by the demurrer, entered the judgment order appealed from, wherein the-court adjudged that a peremptory writ of mandamus issue, directed to the three civil service commissioners (naming them), and commanding them “to forthwith certify from, the eligible list posted December 24,1927, by the then civil service commission of the City of Chicago, the name of Michael J. Lynch, to James P. All-man, commissioner of police of the City of Chicago, or his successor in office, for the office or position of sergeant in the classified service of the department of police, . . . and commanding said Allman, as commissioner of police, “to appoint and assign Michael J. Lynch ... to duty as a sergeant of police, ’ ’ in said classified service (Grade 4, Class S, Branch IV) and commanding all the defendants in their official capacities “to recognize the petitioner herein, Michael J. Lynch, as a sergeant of police” in said classified service and “to forthwith place the name of Michael J. Lynch as a sergeant of police upon the roster and pay roll” of said department of police, etc.

The petition, divided into 24 paragraphs, is long and repetitious. The allegations in paragraphs 1 to 10, inclusive, concern petitioner’s position as a patrolman. As to these allegations no point is made by defendants, but the issue is as to the sufficiency of the well-pleaded facts, alleged in the other paragraphs of the petition, to establish petitioner’s right to the relief prayed. The allegations in paragraphs 11 to 23 inclusive, are in substance as follows:

(11) That pursuant to due notice a promotional examination, to create an eligible list of candidates for the position of sergeant of police, was held on January 29, 1927; that petitioner and others took the examination ; that thereafter “the eligible list of the successful candidates . . . was posted on December 24, 1927', by the then civil service commissioners”; that petitioner’s name appeared “as No. 87 on the original list as posted”; that he “passed with an average of 77.19”; that “his present standing, after certifications from the list, is No. 7 on said list”; that “on January 2, 1930, said list was canceled”; that certifications for promotions were made from the list from time to time, and 100 patrolmen were certified; that many of them, claiming “military preference, who were not entitled to same,” were certified because of “military preference”; that their averages “were ivrongfully, illegally and arbitrarily changed” by the then commissioner of police, and certified by the civil service commissioners, in violation of the civil service law; and that “more than 14, illegally, and without warrant of the civil service law,” were certified and appointed sergeants of police, “in violation of the rights of your petitioner.”

(12) That there were more than 14 vacancies in the position of sergeant of police “for many months prior to January 2, 1930, when said list was canceled.”

(13) That although petitioner successfully passed the competitive and promotional examination for sergeant, and although his name appeared on said eligible list on December 24, 1927, the commissioner of police, at the time the list was “taken down” on January 2, 1930, and for a long time prior thereto, “refused to notify the commissioners of the vacancies existing for the promotional office of sergeant,” and said commissioners “refused to certify the petitioner’s name, in the order in which it should have been certified, to the commissioner of police for appointment as sergeant”; that the refusals were made “notwithstanding the facts that 590 sergeants were appropriated for in the annual appropriation bill of the city for the year 1929, and 585 sergeants for the year 1930, and 572 sergeants for the year 1931”; that there were more than 14 vacancies in the rank of sergeant in the classified service; and that it became the duty of the commissioner of police to notify the civil service commissioners of, and the duty of said commissioners to certify from the top of said eligible list, those eligible for appointment as sergeants, including petitioner.

(14) That under the Civil Service Law for cities and the rules of the civil service commission of Chicago, it was the duty of said commissioner of police to notify the commission of the vacancies existing in the position of sergeant, and also the duty of the commission to certify to the commissioner of police, “the name and address of the candidate standing highest upon the register”; that notwithstanding these duties, said officials, “arbitrarily and without due regard to law, and in violation thereof and the rights of your petitioner, refused to comply with the provisions of the Civil Service Law in this respect”; and that because thereof petitioner “was not promoted to the rank of sergeant,” as he was entitled to be.

(15) That more than 1,900 men took said examination, and 300 successfully passed the same; that from said list “the first 78 were certified and promoted to the rank of sergeant”; that after these certifications were made “the standing on said list was as follows:” (Here follows a long list with petitioner’s name and address as number 8-from the top); that “more than 14, exclusive of said 78, were illegally certified and appointed”; that when said list was “taken down” as aforesaid, and when this petition was filed, “more than 14 other vacancies existed and now exist in the rank of sergeant”; that it was the duty of the commissioner of police to notify the commission “of the vacancies existing,” and the duty of the commission “to certify from said list 14 names of those standing highest on said eligible register for promotion to sergeant”; that no change has been made in the status of the situation and said vacancies still exist; that no other certifications or promotions have been made “from the present eligible register and from any other eligible register of sergeants”; that an order of court. ordering the commission to certify and the commissioner of police to appoint petitionei to the rank of sergeant, “will not disarrange the public service, but on the contrary will promote justice, reward merit and conform to the spirit and letter of the Civil Service Law. ’ ’

(16) That immediately prior to January 2, 1930 (when the first eligible list was canceled as alleged in paragraph 11) “the first 14 of the successful candidates on said eligible list for the promotional rank of sergeant” . . . are as follows: (Here are set forth a list of 14, showing their respective “averages,” their relative standings on the list on December 24,1927, and their standings on January 2,1930. Petitioner is No. 7 on this list.)

(17) That the commission “wrongfully, illegally and arbitrarily changed the eligible list of the successful candidates that took said promotional examination for sergeant of police, . . . and caused the averages of more than 14 patrolmen, who had passed said examination with an average lower than petitioner’s and whose places on said list were lower than petitioner’s, to be wrongfully, illegally and arbitrarily changed, and caused more than 14 of said patrolmen to be given an average higher than the average given to them originally and an average higher than that given to petitioner, and did wrongfully, illegally and arbitrarily place their names upon said list before petitioner’s name, . . . and illegally appointed and illegally promoted to the rank of sergeant . . . 14 of said patrolmen, whose names were below that of your petitioner on said eligible list.”

(18) That, after the list had been posted on December 24, 1927,‘ the civil service commissioners “did then and ■there wrongfully, illegally and arbitrarily cause said list to be changed, and did then and there wrongfully, illegally and arbitrarily . . . give to 14 patrolmen, whose general averages in said examination and whose places upon said list were lower than that pf your petitioner, an average higher than that of your petitioner, and they were illegally promoted to the rank of sergeant ... in violation of petitioner’s rights, upon the ruling of said commissioners that said 14 patrolmen were entitled to preference because of ‘Military Preference,’ . . . who were not legally entitled to said ‘Military Preference’ because of the fact that they had none.”

(19) (In this paragraph, reference being again made to the claimed refusal of the commissioner of police to notify the commission of existing vacancies and the claimed refusal of the commission to certify the names of those standing highest on the list for the promotional appointment as sergeants, it is alleged that such refusals were “fraudulent and contrary to law,” but no facts are stated showing in what the fraud consisted.)

(20) That petitioner “has continuously made demands, from December 24, 1927, up to the time of filing this petition, that he be certified and appointed to the office of sergeant in the classified service”; that “upon each and every occasion” of making demand, he “has been promised by the City of Chicago, through its mayor, commissioner of police and civil service commissioners, that he would be appointed to said office”; that he “relied upon the promises”; that shortly prior to the filing of the present petition he “did again demand” of the city, through said officials, that he receive said appointment; that “then, for the first time,” said city, through said officials “did refuse to appoint petitioner to the office of sergeant”; that “a new examination was held and the list posted in March, 1931”; that “no certificates have been made from said eligible list”; that the vacancies that existed in the rank of sergeant “still exist”; that “there are 14 vacancies in the office of sergeant of police ... . which have not been filled and which should have been filled from the list in force and effect from December 24, 1927 to January 2, 1930”; that had the commissioner of police and the commission complied with the statutes, “petitioner would have been certified and appointed to the rank of sergeant . . . prior to January 2, 1930”; that no change has been made in the situation since said list was canceled and “said vacancies still exist and have not been filled”; and that “no certifications or appointments have been made from said eligible list posted in March, 1931, for the rank of sergeant. ’ ’

(21) (In this paragraph is the allegation that petitioner “is now, and was during all the time that said list was in force and effect, a police patrolman on active duty” in the police department of the city.)

(22) That “it was the policy of the administration, to wit, the then mayor, commissioner of. police and civil service commissioners, to refrain from filling the vacancies occurring after February 1, 1930”; that because thereof no change has been made in the existing status, “except the illegal promotion of those on said eligible list, whose places and averages were lower than that of petitioner”; that “no new promotions have been made from the new eligible list”; and that “14 vacancies still exist in the office of sergeant, and did exist prior to December 24, 1929, because of the fact that said office was appropriated for in the annual appropriation bills of the city council, as hereinbefore described. ’ ’

(23) That petitioner “has made demand” on the city and other defendants that his name be placed on the police pay roll as a sergeant, but that the demand has been refused.

The well-pleaded allegations of fact of the petition (as distinguished from conclusions not admitted by the demurrer) are, in substance, that for a long period of time prior to January, 1927, petitioner had been acting as a police patrolman in the classified service of the police department of the city; that on January 29, 1927, he took a promotional examination, which he had a right to take, for the position of sergeant of police; that he successfully passed the examination and his name was placed on the eligible list or register, which “was posted on December 24, 1927”; that his name was “No. 87” on the list; that more than two years after the list had been posted, without his having received the appointment as a sergeant, to wit, “on January 2, 1930, said list was canceled”; that at the time of such cancellation petitioner’s name was “No. 7” of the candidates whose names had not been certified for appointment; that at said time there existed, and still exists, “14 vacancies” in the position of sergeant in the classified service of the city; that petitioner’s demands to be appointed as a sergeant to one of the vacancies had been refused; that in 1931 a “new examination” for the position of sergeant was had (which examination petitioner did not take); that the new list “was posted in March, 1931”; and that prior to the time of the filing of this petition (July 10, 1931) no certifications had been made from the new list and said 14 vacancies still existed. In addition to the above allegations of fact there are statements, many times repéated, to the effect that prior to the cancellation of the old eligible list on January 2,1930, the civil service commission “wrongfully, illegally and arbitrarily” changed that list so as to place the names of others thereon, and whose stated grades were lower than petitioner’s grade, ahead of petitioner’s name; that said commission “wrongfully, illegally and arbitrarily” gave “military preference” to certain of the persons, “who ivere not entitled to same,” and placed them on said list ahead of petitioner and afterward certified them to the positions of sergeants; and that, although there existed and continued to exist the 14 vacancies, the commission “wrongfully, illegally and arbitrarily” refused to certify petitioner to one of said vacancies. The facts as to how said list was changed, or as to how and to whom military preference was given when it should not have been given, are not disclosed. We think that the statements, last above mentioned, should be considered as mere conclusions of petitioner, and not proper allegations showing a clear right to the writ of mandamus as prayed. (12 Ency. Pl. & Pr. 1033; Stott v. City of Chicago, 205 Ill. 281, 291; LaValle v. Soucy, 96 Ill. 467, 469; People v. Town of Mount Morris, 145 Ill. 427,432; People v. Webb, 256 Ill. 364, 373; McDevitt v. Finn, 248 Ill. App. 339, 343.)

And we are of the opinion that the well-pleaded facts, as alleged in the petition, are not sufficient to warrant the court’s judgment, which commands the present civil service commissioners “to forthwith certify ,from the eligible list posted December 24, 1927, . . . the name of Michael J. Lynch . . . for the office or position of sergeant of police,” etc. In the 11th paragraph of the petition it is alleged that the eligible list, as posted on said date, “was canceled on January 2, 1930” (i. e., more than two years after it was posted, and more than a year before petitioner filed the present petition). Because of a provision contained in section 10 of the “Act to regulate the civil service of cities” (Cahill’s St. ch. 24, If 694) it is apparent that said cancellation of the list was lawful and proper. The provision is: “Said commission may strike off names of candidates from the register after they have remained thereon more than two years.” We think that when said old eligible list was canceled it became functus officio, that is, it “had become of no virtue whatsoever” (2 Bouvier’s Diet., Rawle’s 3rd ed., p. 1323), and petitioner’s name, not being on any list, could not legally be certified by the commission for the position of sergeant. Furthermore, inasmuch as the position of sergeant of police is a promotional one, it is governed by section 9 of said act, Cahill’s St. ch. 24, Tf 693, one of the provisions of which is that “it shall be the duty of the commission to submit to the appointing power the names of not more than three applicants for each promotion having the highest rating.” This is authority for the commission to submit the names of three applicants for each promotion, so as to give a discretion to the appointing power as to which of the three shall be appointed. (See McDevitt v. Finn, supra.) And, clearly, under these provisions of the section, the commission should not be compelled to certify the name of but one. Furthermore, we are of the opinion that the petition shows on its face such laches on petitioner’s part as is a bar to the relief as prayed. If he was improperly and unlawfully displaced from his proper position on the eligible list, by the advancement and certification of others lower on the list than he, he should have taken steps by appropriate suit before said list became more than two years old and was canceled on January 2, 1930. He does not show by proper allegations any excuse for the delay. It is decided in this State that in a mandamus proceeding the defense of laches, appearing on the face of the petition, may be raised by demurrer. (Schultheis v. City of Chicago, 240 Ill. 167, 170; Kenneally v. City of Chicago, 220 Ill. 485, 502, 503.)

For the reasons indicated the judgment of the superior court of August 8, 1932, appealed from, is reversed and the cause is remanded with directions to the court to sustain defendants ’ demurrer, and for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded with directions.

Sullivan, P. J., and Soanlan, J., concur.


author: Mr. Justice Gridley

text:
    George C. Johannsen, Defendant in Error, v. David J. Evans, Plaintiff in Error.
    Gen. No. 36,424.
    Opinion filed June 30, 1933.
    William J. McGah, for plaintiff in error.
    Frank 0. Hilburn, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.

By this writ of error defendant seeks to reverse a judgment rendered against him for $266.50, on April 21, 1932, in a 4th class action in contract, commenced on February 25, 1932, and tried without a jury on stipulated facts. The court found the issues against defendant and, assessed plaintiff’s damages at the full.amount of his claim.

Plaintiff, a dealer in poultry and veal in Chicago, claimed a balance of $266.50 due him on June 1, 1931, for.certain merchandise sold and delivered to defendant, also in Chicago. On the copy of the account attached to plaintiff’s statement of claim, it is stated that on June 5, 1931, he received defendant’s check for $266.50, which he deposited, but that thereafter the check was returned to him, unpaid, because “bank closed. ’ ’

In defendant’s affidavit of merits he admitted the sale and delivery of the merchandise, but he alleged as a defense to plaintiff’s claim that on June 3, 1931, he gave plaintiff a check for $266.50, signed by A. M. Evans and drawn on the West Englewood Trust and Savings Bank in Chicago, in full payment of the amount due; that on that day and thereafter A. M. Evans had money on deposit with the bank more than sufficient to pay the check; that plaintiff “negligently” failed to present the check until June 9, 1931, on which day the bank was closed by order of the auditor of public accounts of Illinois; that because of plaintiff’s negligence,, the check was not paid by the bank; that, “therefore, defendant is not indebted to plaintiff in the sum of $266.50, or in any sum. ’ ’

The material parts of the stipulated facts, contained in the bill of exceptions, are as follows:

That the check in question, drawn on the West Englewood bank and dated June 3, “was not received by plaintiff until Friday, June 5, 1931”; that “on said date (June 5) defendant had enough money on deposit in the West Englewood bank to pay the check”; that “on Saturday, June 6, 1931, plaintiff deposited the cheek to the credit of his account in the Bowmansville National Bank, which was not a member of the clearing house”; that “in accordance with the custom of said bank (Bowmansville bank), the check having been deposited on a Saturday, .said check was credited as a deposit of June 8, the next business day, which was Monday, and on that date was sent to the National Bank of the Republic, through which bank the Bowmansville bank cleared checks deposited with it”; that “on June 9, 1931, the West Englewood bank was closed by order of the auditor of public accounts”; and that “on June 9, the check was presented by the National Bank of the Republic for payment and, said West Englewood bank being closed, the check was never paid. ’ ’

It appears from the bill of exceptions that the parties by their respective attorneys, further stipulated as follows:

“The sole question in this cause is a question of law to be determined by the court, viz.: ‘Did plaintiff make presentment of said check for payment within a reasonable time, as provided in Section 185, Article 1, Chapter 98, of the Illinois Negotiable Instruments Act?’ ”

It also appears from the bill of exceptions that ‘ ‘ said question was submitted to the court for decision and the court entered a finding for the plaintiff”; and that after denying defendant’s motions for a new trial and in arrest of judgment, the court entered the judgment as first above mentioned.

In section 185 of the Illinois Negotiable Instruments Act, Cahill’s St. ch. 98, H 207, it is provided:

“A check must be presented for payment within a .reasonable time after its issue, and notice of dishonor given to the drawer as provided for in the case of bills of exchange, or the ■ drawer will be discharged from liability thereon to the extent of the loss caused by the delay. ”

In section 192 of the act, Cahill’s St. ch. 98, If 215, it is provided:

“In determining what is a ‘reasonable time’ or an ‘unreasonable time,’ regard is to be had to the nature of the instrument, the usage of trade or business (if any) with respect to such instruments, and the facts of the particular case.”

Prior to the passage of said act in June, 1907, there were decisions in this State in substantial accord with the provisions of said sections. In Montelius v. Charles, 76 Ill. 303, 306, decided in 1875, it is said: “The law is settled, by an unbroken line of decisions, that all drafts, whether foreign or inland bills, must be presented to the drawee within a reasonable time, and in case of non-payment, notice must be given promptly to the drawer, to charge him. But what is a reasonable time, under all the circumstances, is sometimes a most difficult question. The general doctrine is, each case must depend on its own peculiar facts and be judged accordingly.” In Industrial Bank v. Bowes, 165 Ill. 70, 75, 76, decided in 1897, it is said:

“The general rule is, that the holder, in order to charge the drawer in case of dishonor, is bound to present the check for payment within a reasonable time and give notice to the drawer within a like reasonable time, otherwise the delay will be at his own peril. Story on Promissory Notes (sec. 493) lays down the rule, that if the payee or holder of the check receives it from the drawer in the same town or city where it is payable, he is bound to present it for payment on the next succeeding day after it is received; but where he receives the check from the drawer in a place distant from the place of payment, it will be sufficient for him to forward it by the post to some person at the latter place on the next day after it is received, and the person to whom it is sent will not be required to present it for payment until the next day after it has reached him in the regular course of mail. . . . But Story (sec. 497) says: ‘The drawer is in no case discharged from his responsibility to pay the same unless he has suffered some loss or injury by the omission or neglect to make such presentment, and then only pro tanto. If the bank has failed or become bankrupt, he will be discharged to the extent of the loss he has sus-, tained thereby.’ This court has laid down the same rule. ... In speaking further on this subject Story (sec. 498) says: ‘If the bank or banker still remains in good credit and is able to pay the check, the drawer will still remain liable to pay the same, notwithstanding many months may have elapsed since the date of the check, and before the presentment for payment, and notice of the dishonor. So if the drawer, at the date of the check or at the time of the presentment of it for payment, had no funds in the bank or banker’s hands, or if, after drawing the check and before its presentment for payment and dishonor, he had withdrawn his funds, the drawer would remain liable to pay the check notwithstanding the lapse of time.’ ”

In Travers v. T. M. Sinclair & Co., 122 Ill. App. 203, decided by the Appellate Court for the second district in 1905, it was held that under the particular facts a delay of five days in presenting a check for payment was sufficient to discharge an indorser of liability. The court said (p. 207, italics ours):

“As to what is a reasonable time for presentment of an indorsed check and notice of dishonor in order to hold the indorser depends to some extent upon circumstances and the conditions existing. If a check is received in the same town as the bank on which it is drawn is located, the law is that it must be presented either on the same day or not later than the next. If the check is received in one place, drawn on a bank at some other place, then it must be fonvarded not later than the day after it is received, for the presentment to the bank on which it is drawn, and this appears to mean that it must be forwarded directly. Forwarding by a circuitous route may, as a general rule, be said to constitute negligence. See 5 Am. & Eng. Ency. of Law, (2nd ed.), pages 1042 and 1043, and cases cited.”

Turning to said 5 Am. & Eng. Ency. of Law (published in 1897) we find the following statements (italics ours):

(Page 1041) “When no more time is taken than is fairly required in the usual course of business, special inconvenience and special circumstances considered, the holder, in case of failure of the bank upon which the check is drawn, before presentation, should not be held to suffer the loss.” (Citing Freiberg v. Cody, 55 Mich. 108.)

(Page 1042) “It is well settled that when the person receiving the check and the banker on whom it is drawn are in the same place, in the absence of special circumstances, it must be presented for payment the same day or at least the day after it is received. ’ ’ (Citing many cases, including Bickford v. First National Bank, 42 Ill. 238.)

(Page 1042) “But if in different places the check must be forwarded for presentment on the day after it is received, and the agent to whom it is forwarded must in like manner present it at the bank on the day after he receives it.” (Citing many cases, including Allen v. Kramer, 2 Ill. App. 205, 209.)

(Page 1043) “The check, if drawn on a distant place, however, need not be sent direct to its place of payment by the holder, but the usual and accustomed channel of transmission is all that is required.” (Citing several cases, including Taylor v. Sip, 30 N. J. L. 284.)

In the cited Taylor v. Sip case, it is said (p. 291, italics ours):

“Nor need the cheek be sent direct to its place of payment by the holder. It may be sent by the usual and accustomed channel of transmission. If it belong to a bank, or be left with it for collection, and the bank does not exchange directly with the bank upon which it is drawn, it may be sent to a bank with which it does exchange, and so to its correspondent bank, until it reaches the bank at which it is payable, if the route be not unreasonably circuitous. Such is the well settled usage among banks, and it is sanctioned by law. Such is the rule in regard to the transmission of bills of exchange, and it seems equally applicable to checks. Any other rule would be exceedingly onerous to the holders of checks.”

In 1912, after the Illinois Negotiable Instruments Act became in force, the Appellate Court of the second district, in the case of Sublette Exchange Bank v. Fitzgerald, 168 Ill. App. 240, modified to some extent the rule as stated in its prior opinion in Travers v. T. M. Sinclair & Co., supra, and said (p. 242, italics ours):

“By requiring that the check be forwarded directly to the bank upon which it is drawn, the rule above stated (in the Travers case) does not mean that it should be sent in a direct line as a' bird might fly, but by the usual commercial route, and the proof here shows that this was sent by the customary route. ’ ’

In the present case, defendant’s affidavit of merits discloses that his theory of defense is in substance that plaintiff “negligently” failed to present for payment defendant’s check (given for the admitted indebtedness) to the bank on which it was drawn within a reasonable time; that had it sooner been presented it would have been paid; that when it was presented payment was refused because of the closing of the bank by the state auditor on the same day; and that because of plaintiff’s negligence defendant is discharged from liability on the unpaid check and on the indebtedness. The stipulated facts, on which the case was tried, disclose in substance that defendant’s check, drawn on the West Englewood bank, was not received by plaintiff until June 5,1931; that on that day defendant had enough money on deposit in said bank to pay the check (whether thereafter he had enough money is not stated); that on the following day, “Saturday, June 6, 1931” plaintiff deposited the check “to the credit of his account in the Bowmansville bank”; that the Bowmansville bank “was not a member of the clearing house”; that “in accordance with the custom” of the Bowmansville bank, the check (deposited on Saturday) was not credited to plaintiff as a deposit until the “next business day” which was “Monday, June 8”; that on that day (June 8) the Bowmansville bank (agent for plaintiff for the presentation for payment and collection of the check) forwarded the check to the Republic bank, “through which bank the Bowmansville bank cleared checks deposited with it”; that on the following day (June 9) the West Englewood bank “was closed by order of the auditor of public accounts”; that on said day (June 9) the check was presented for payment by the Republic bank; and that, “said West Englewood bank being closed, the check was never paid.” It will also be noticed that it is not definitely stated that, at the time the bank was closed and at the time the check was presented for payment, defendant had sufficient moneys on deposit in the bank to pay the check.

In view of the stipulated facts, the provisions of sections 185 and 192 of the Illinois Negotiable Instruments Act, and the authorities above mentioned, we are of the opinion that the check in question was presented for payment to the West Englewood bank “within a reasonable time”; that, considering the well-known usages of trade or business with respect to checks in a large city like Chicago, neither the plaintiff nor the Bowmansville bank (plaintiff’s agent) was guilty of negligence, in fact or law, in not causing the check to be presented sooner than it was; and that the court was fully justified in making its finding and in entering the judgment appealed from. One of the contentions of counsel for defendant, here made, is, in substance, that plaintiff was remiss in choosing a bank with which to do his banking business which was not a member of the “clearing house” and which had the “custom” as mentioned in the stipulated facts. We cannot agree with the contention.

The judgment of the municipal court is affirmed.

Affirmed.

Sullivan, P. J., and Scanlan, J., concur.