author: Mr. Presiding Justice Matchett Mr. Justice O’Connor

text:
    Samuel I. Brown, Appellee, v. Fire Insurance Company of Chicago, Appellant.
    Gen. No. 36,796.

      Opinion filed April 2, 1934.
    Heard in the first division of this court for the first district at the June term, 1933.
    Fisher, Boyden, Bell, Boyd & Marshall, for appellant; David A. Watts, of counsel.
    Gilbert, Rommel, Burger & Baker, for appellee; Hart E. Baker, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This is an appeal by defendant corporation from a judgment in the sum of $5,000 entered upon the finding of the court after defendant’s motions for a new trial and in arrest were overruled. The cause was before this court on a former appeal. Brown v. Fire Ins. Co. of Chicago, 265 Ill. App. 393. It there appeared that the trial court sustained a demurrer to plaintiff’s declaration, and plaintiff, electing to stand by Ms pleading, suffered an involuntary nonsmt and appealed from a judgment for costs entered against him. The question there was whether a corporation organized under the Insurance Act (as defendant) could lawfully contract to purchase its own shares of stock; in other words, whether such contract was ultra vires the corporation. Defendant urged that a contract of that kind was ultra vires under the general rules of corporation law, and further that such contract of purchase was prohibited by section 8 of the Fire Insurance statute (Cahill’s Ill. Rev. St. ch. 73, U36, §8). We held against both contentions, reversed the judgment and remanded the cause with directions that a rule should be entered upon defendant to plead to the declaration.

The mandate of this court was filed in the circuit court March 19, 1932, and the rule was entered.

An affidavit of claim was attached to plaintiff’s declaration and on April 2] defendant filed pleas which were supported by its affidavit of merits. Thereafter, by leave of court these pleas were withdrawn and leave given to file additional pleas, the affidavit of merits to stand to the additional pleas. Defendant thereupon filed a plea of the general issue and a special plea that by virtue of the statute under which it was incorporated defendant was without power to make the contract alleged in plaintiff’s declaration unless authorized by its board of directors, and that such authority was never given. The affidavit of merits averred that defendant was incorporated August 8,1929, under an act approved March 11, 1869', as subsequently amended; that Darby A. Day, whose name was signed to the writing set forth in plaintiff’s declaration, was not defendant’s duly authorized agent to make and deliver the writing, and that such writing was not made and delivered by defendant. Plaintiff filed a general demurrer to the second plea, which was sustained, and the ruling of the court on that point has been preserved by the bill of exceptions. The cause was thereupon submitted to the court without a jury, the evidence taken, and a finding entered for plaintiff with judgment thereon, as already stated.

Upon the former appeal defendant contended that section 8 of the Fire Insurance statute (Cahill’s Ill. Rev. St. 1929, ch. 73, jf 136, § 8) should be construed as prohibiting the purchase by defendant corporation of its own stock. We held against this contention for the reasons stated in that opinion. It is now contended that by reason of the same section of the statute, defendant was not bound because the contract was not authorized by the board of directors.

The declaration was not amended after the cause was redocketed in the trial court and is therefore the same declaration we considered upon the prior appeal. Upon that appeal defendant caused only a part of the writing to be abstracted. The abstract now sets up verbatim the offer of defendant to buy the stock which is in the form of a letter to plaintiff signed “Darby A. Day, President.” As now abstracted the declaration alleges that “defendant, by Darby A. Day, its president and duly authorized agent in that respect, made its offer” which was accepted October 10, 1930. The affidavit attached to the statement of claim (which also was not abstracted upon the former appeal) states the nature of plaintiff’s claim to be “that on, to-wit, February 4,1930, the defendant by Darby A. Day, its president and duly authorized agent, made an offer in writing to plaintiff, in words and figures as set forth above, to purchase plaintiff’s shares of stock at fifty ($50) dollars per share for a period of one year, that thereafter on to-wit, the 10th day of October, 1930, while said offer was still in full force and unrevoked, plaintiff accepted said offer and so notified defendant, and bargained and sold and tendered to said defendant the said shares of stock of the plaintiff, but defendant refused to pay for same, ’ ’ etc.

As against defendant’s present contentions, plaintiff invokes the rule of law that a law suit cannot be tried piecemeal and argues that as to the point of authority and power to purchase defendant is now precluded by the former appeal and judgment. Plaintiff cites Tisdale v. Davis, 198 Ill. App. 116; Keuner v. Consumers Co., 255 Ill. App. 216. There are, however, cases almost innumerable to the effect that a judgment in this court upon appeal is conclusive not only as to the issues decided but as to all issues that might have been raised upon the appeal, and we think that so far as defendant undertakes to question the authority and power of the corporation with respect to making this contract, it is now precluded by the former judgment of this court.

It is urged by defendant that the question as to the authority and power of defendant to make the contract without approval of the board of directors could not have been raised upon the former appeal for the reason that the declaration upon its face alleged that Darby A. Day, the president, was “duly authorized.” It is elementary, of course, that pleadings are upon demurrer taken most strongly against the pleader, and so construed that phrase is perhaps nothing more than a mere conclusion. It was, however, unnecessary to allege in the declaration that the agent who made the contract was duly authorized. An averment that the corporation made it would have been sufficient, and from that standpoint the further averment of the conclusion that the agent named was duly authorized was mere surplusage. Moreover, the question of whether the president of the corporation was in fact authorized to execute the writing here relied upon, presents an issue of fact, irrespective of any interpretation of section 8 of the statute for which defendant contends. This is true assuming that (of which we have no doubt) section 8 is not applicable to this situation, for the reason that in our opinion the purchase of its own stock by an insurance corporation incorporated, as is defendant, is not an investment or a loan within the meaning of the statute. Savings Bank of San Diego County v. Barrett, 126 Cal. 413. The application of this section of the statute is by its express terms limited to loans and investments.

The controlling issue here is therefore one of fact, namely, whether Darby A. Day (who, the evidence shows without contradiction, was the president of the defendant corporation and chairman of the executive committee) was or was not without authority to make the contract. Without question, in this State the president of a corporation is by virtue of his office the recognized business head of it, and as a general rule any contract pertaining to corporate affairs within the general powers- of such corporation, executed by the president in its behalf, will (as was said in Bloom v. Vehon Co., 341 Ill. 200, following Quigley v. MacQueen & Co., 321 Ill. 124, upon which plaintiff relies) “in the absence of proof to the contrary, be presumed to have been by authority of the corporation, as one of the powers incident to his office.” This power, however, is not without its limitations. In the Bloom case it was held that the president of a corporation could not bind the corporation to pay another officer a salary or other compensation unless there was express authority to make such promise. Other limitations upon the power of a president, depend, of course, on the nature of the business conducted by the particular corporation, its charter, by-laws, etc. It is apparent such limitations are necessary. Plaintiff cites Anderson Transfer Co. v. Fuller, 174 Ill. 221, where it was held that the president had power to execute a power of attorney to confess judgment on the note in the name of the corporation. The opinion, however, expressly states that the power existed only prima facie and that the facts might be shown to be otherwise. Domestic Bldg. Ass’n v. Guadiano, 195 Ill. 222, is cited, where it was held that a corporation was bound by a contract for the purchase of property executed by the president, although the board of directors afterward disaffirmed the sale. However, the facts there were that the directors had knowledge of the execution of the contract at the time it was made and failed to protest against it. Traders Mut. Life Ins. Co. v. Johnson, 200 Ill. 359, is cited, where it was held that the president had power to waive a breach of warranty in an application for a policy of life insurance, but here again the basis of the rule applied was that of estoppel by knowledge. Jones & Dommersnas Co. v. Crary, 234 Ill. 26, is also cited. There, again, the question was simply one of waiver and not of the power to execute a contract in the first-instance.

There is no question of waiver or estoppel in this case. While in the former case we held and are still of the opinion that under the law of Illinois a corporation, has power to purchase its own stock, the exercise of such power in the very nature of things is unusual. Indeed, if the entire capital stock were purchased and retired, it would have the effect of winding up the corporation, and there seems to be abundant authority to the effect that a president of a corporation is without power in the absence of an authorization of the board of directors to make such a contract. The precise question has not been passed upon by the .courts of this State, but as indicating the trend of the decisions, Wagg-Anderson Woolen Co. v. Lesher & Co., 78 Ill. App. 678; Superior Mining Co. v. White Coal Co., 214 Ill. App. 381; and Friedman v. Lesher, 198 Ill. 21, are interesting and useful. The precise question, however, has been passed upon by well co'nsidered decisions in other States. The general rule is stated in 6 Fletcher Cyc. of Corporations (1931), sec. 2848: “Furthermore, as a general rule, the officer who acts for the company in making the purchase must have been previously authorized so to do by the board of directors or the purchase must be subsequently ratified by that body. ’ ’ In 5 Thompson on Corporations (3rd ed.), sec. 4081, p. 955, that authority states: “The purchase (of a corporation’s own stock) must be authorized by the directors. The officer undertaking the purchase must be given authority by the directors.” In McCullough v. Satterthwait, 11 F. (2d) 111, C. C. A. 8 (1926) the Circuit Court of Appeals said: “An officer of a corporation has no power to make a contract for a purchase by the corporation of its own stock without special authorization by the board of directors.” This statement of the rule is borne out by Calteaux v. Muel ler, 102 Wis. 525; West Texas Supply Co. v. Dunivan (Tex. Civ. App.), 198 S. W. 163; Farmers’ Union Mercantile Co. v. Ricketts, 129 Ark. 177; Beach v. Palisade Realty & Amusement Co., 86 N. J. L. 238.

The minutes of the meetings of the board of directors and executive committee of this defendant corporation were put in evidence and confirm the oral testimony of Darby A. Day to the effect that no such authorization had been given to him. Of course, every corporation is bound by the apparent authority conferred upon its agents and officers, and the defense is one which may easily be waived, or in which an estoppel where justice required would arise. There are no circumstances in this case on which an estoppel may be based, and for the reasons indicated the judgment of the trial court is reversed.

Reversed.

Mr. Justice O’Connor

specially concurring: I agree with the opinion of the court that the judgment cannot stand, and in my opinion, no judgment for the plaintiff could stand because the evidence shows that plaintiff in October, 1928, bought 100 shares of stock for $6,250 from the Illinois Investment Co., which apparently was organized to sell stock of the defendant company, and that concern agreed to buy it back at any time within six months for $50 a share. About 16 months after plaintiff purchased the stock, February 4, 1930, he saw Day, who was president of the defendant Insurance Company, at his place of business and told him that he was indebted to a Chicago bank which held his note, with his 100 shares of stock as collateral, that he wanted to pay his note, and he asked Day if defendant would not make good the offer made by the Illinois Investment Co. when plaintiff purchased the stock, and give plaintiff $50 a share for it; that Day said defendant could not do this at that time, but that defendant would have paid that amount for the stock a year before. After further talk about the matter, it was agreed that Day, as president of defendant Insurance Company, would write a letter to plaintiff which would show that defendant thought the stock was valuable, and which plaintiff could take to Ms bank so as to maintain his credit there.

Thereupon the letter of February 4, 1930, was written by Day, as president of the defendant company, addressed to Brown in care of the Commonwealth Trust & Savings Bank, which held plaintiff’s note and Ms shares of stock, as collateral. While the letter states, “we make you a standing offer for a period of one year at $50.00 per share for your stock in the Fire Insurance Company of CMcago,” it further goes on to say that the prospects of the Insurance Company are bright and that the stock is valuable. It is a “puffing” letter and we think it clear that it was understood by both Brown and Day that defendant had no intention of buying the stock and Brown had no intention of selling it for $50 a share to the defendant, but was merely to use the letter for the purpose of maintaimng Ms credit at his bank. TMs further appears from the fact that the letter was delivered to plaintiff’s bank, as was intended by the parties, and on the trial plaintiff testified that after the letter was given to him by Day, plaintiff’s bank held it until it was produced by plaintiff on the trial.

McSurely, J.: I agree with the specially concurring opimon.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    Joseph J. Johaaski, Plaintiff in Error, v. City of Chicago et al., Defendants in Error.
    Gen. No. 37,237.
    Opinion filed April 2, 1934.
    Heard in the first division of this court for the first district at the February term, 1934.
    A. D. Gash and Edwin Hamilton, for plaintiff in error.

      William H. Sexton, Corporation Counsel, Quin O’Brien and Carl Hjalmar Lundquist, Assistant Corporation Counsel, for defendants in error.
   Mr. Justice McSurely

delivered the opinion of the court.

This writ of error brings in review the action of the superior court in quashing the writ of certiorari which issued from that court, directed to the civil service commissioners of Chicago.

The petition for the writ requested the superior court to order the civil service commissioners and the secretary to bring up for inspection before the superior court the proceedings in and about the trial and dismissal of the petitioner from the position of fire engineer in the fire department of the City of Chicago, claiming said commission exceeded its jurisdiction and acted unlawfully.

An order was entered directing that the writ issue, and respondents answered by presenting the record of the proceedings; respondents also answered that charges were preferred against the petitioner by the commissioner of fire of the City of Chicago charging him with intoxication and neglect or refusal to obey the orders of a superior officer; that thereupon a written notice was directed to petitioner commanding him to appear at a certain time and place to answer and defend the charges, and that a copy of the charges accompanied the notice; that these were served upon him and petitioner acknowledged receipt thereof; that the sworn testimony of witnesses was heard and, the findings sustaining the charges, the removal of petitioner from his position in the fire department was ordered. The respondents moved the superior court to quash the writ of certiorari, which was done.

It has been repeatedly decided that in proceedings of this kind the reviewing court will not examine the evidence but will inquire only as to whether the commissioners had jurisdiction and followed the form, of proceedings legally applicable to such cases, and will not determine whether it correctly decided questions during the progress of the trial. People v. Lindblom, 182 Ill. 241; People v. City of Chicago, 234 Ill. 416; Joyce v. City of Chicago, 216 Ill. 466; City of Chicago v. People, 210 Ill. 84.

In the present case the return shows that specific charges were filed against petitioner; that he was served with notice; that he appeared in person and by counsel; that evidence was heard on the charges and that he was found guilty; the record shows that the civil service commission had jurisdiction of the parties and of the subject matter; that it acted upon evidence and that it did not exceed its jurisdiction. The superior court therefore had no jurisdiction to review the findings of the civil service commission and determine whether its findings were erroneous. Hopkins v. Ames, 344 Ill. 527. In that case the court said: “To allow a review of the evidence by the courts on investigations conducted by the civil service commission or under its direction would be the exercise of executive powers, which the separation of departments of the government precludes the courts from exercising.” To the same effect are Carroll v. Houston, 341 Ill. 531; Funkhouser v. Coffin, 301 Ill. 257, and many other cases.

The particular point which the petitioner makes in this court is that, as he claims, the commission appointed someone from the corporation counsel’s office to represent the petitioner at the hearing. This does not appear from the record, which recites merely that petitioner “appeared in person at this hearing and was represented by counsel; that he and his counsel were present throughout and participated in the examination of witnesses.” We must look to the record alone and not to matters dehors the record, for if we could do so the writ of certiorari would manifestly be of no avail. Commissioners of Drainage District v. Griffin, 134 Ill. 330.

Petitioner filed before the commission a petition for rehearing, which has been incorporated in the record before us, in which he states that he did not know he was entitled to be represented by counsel of his own selection. We know of no practice which authorizes a petition for rehearing to be incorporated in the record as part of the return to the writ of certiorari. As the reviewing court has no power to review the judgment of the commission except as to its jurisdiction and whether it proceeded legally, a petition for rehearing cannot be interpolated into the record nor this court be called upon to consider the matters set forth in the petition for rehearing, especially where, as here, the petition apparently contradicts the record. Judgments of courts of review must always be formed from the record and from that alone. Wisconsin Cent. R. Co. v. Wieczorek, 151 Ill. 579; People ex rel. Holland v. Finn, 247 Ill. App. 53; Hine v. Roberts, 309 Ill. 439; Kammann v. City of Chicago, 222 Ill. 63.

Moreover, if the petitioner objected to the counsel which represented him at the trial, he could have made such objection, and had the petitioner been refused counsel of Ms own selection there might be some ground for arguing that the commission had not proceeded legally. But the record fails to show that the petitioner made any objection to this counsel. If such an objection is not made at the time of the trial, the court of review will not inquire into the matter. Sullivan v. Lower, 234 Ill. 21.

Petitioner cites certain cases, like City of Chicago v. People, 210 Ill. 84, but in these cases the record clearly showed that the trial board was constituted contrary to the requirements of the statute, hence it was held that it had not the power to try the petitioner.' In the' present ease all the elements necessary to a judicial determination of the charges were present and the proceedings were in the form legally applicable to such cases.

The order of the superior court quashing the writ issued was proper and it is affirmed.

Affirmed.

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


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

text:
    F. Foster Ladd, Appellant, v. Cochran & McCluer Company, Appellee.
    Gen. No. 37,300.
    O’Connor, J., specially concurring.

      Opinion filed April 2, 1934.
    Heard in the first division of this court for the first district at the February term, 1934.
    Gardner, Foote, Morrow & Merrick, for appellant; Robert L. Elliott, Jr., of counsel.
    Kirkland, Fleming, Green & Martin, for appellee; Vernon M. Welsh, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff appeals from an adverse judgment entered by the court upon the trial of an action brought by him to recover the par value of two $1,000 bonds which he bought from defendant under its agreement to repurchase them.

Plaintiff asserts that defendant refuses to carry out this agreement. Upon the trial, at the close of plaintiff’s case, on motion of defendant, the court found the issues for the defendant and entered judgment accordingly. The question is presented whether plaintiff complied with the conditions of the agreement so as to impose upon the defendant the obligation to repurchase the bonds.

In March, 1930, plaintiff, who lives in Massachusetts, received from the defendant, in the business of selling real estate bonds in Chicago, a printed circular advertising for sale an issue of Edgewater Manor First Mortgage bonds; plaintiff offered to take two bonds of $1,000 in the series first maturing; defendant replied that all the short maturities were sold, but offered to sell plaintiff longer term bonds, to be accompanied by an agreement of defendant to repurchase them; plaintiff accepted this offer and paid defendant for the bonds, maturing August 15,1937, which were delivered to him together with the repurchase agreement signed by the defendant. The pertinent part of this agreement reads, 11. . .we hereby agree that at anytime in or after the month of August, 1932, up to the final maturity of said Edgewater Manor bonds we will redeem them, upon five days’ written notice, at par and accrued interest to date of transaction.”

Complying with this provision for written notice, plaintiff, on August 1, 1932, mailed to defendant a letter saying that, acting in accordance with the terms of the repurchase agreement, he had drawn a draft on it for $2,065, payable August 15th, which he was forwarding with the two bonds which he had purchased; plaintiff mailed the letter by registered mail in an envelope properly addressed to the defendant, postage prepaid, with a request for a registry return receipt ; August 5th he received by mail a registry return receipt signed by defendant acknowledging receipt, on August 3rd, of the registered letter.

August 1st, as plaintiff stated in his letter, he drew a draft on defendant in the sum of $2,065, the par value of the bonds, with interest, payable August 15, 1932, and gave it for collection, with the two bonds, to The First National Bank of Boston, which sent them to its correspondent bank in Chicago, the Continental Illinois National Bank and Trust Company.

Balph Ash' testified that he was a clerk in the office of the Continental Bank in the department handling drafts and the collection of drafts with securities and documents attached; the witness remembered receiving the draft and bonds in question and says they were presented to defendant on August 3rd, 15th and 19th, and each time defendant refused to pay the draft and to take the bonds; that about August 25th he called defendant’s cashier on the telephone and was told by him that defendant would not pay the draft or take the bonds, and told the witness to return the draft and bonds to plaintiff; that he then returned them to the Boston bank.

On cross-examination Ash said that the presentations of the draft and bonds were made by a bank messenger, who made a written report each time, which report was handed to him; the witness said that the reports made by the messengers are on little slips which are not kept any length of time; the witness could not recall which messenger made these reports. On motion of defendant the court struck out all the “hearsay evidence” of fhe witness, — evidently meaning the evidence as to the reports made by the bank messengers.

Robert L. Elliott, connected with the plaintiff’s attorneys, testified that on September 13th he wrote to defendant, requesting it to comply with the repurchase agreement and offering to deliver the bonds to defendant, but no answer was received; that September 28th he called at defendant’s offices and made a similar request and offer to the vice president of the defendant company, but these were refused, the vice president saying that defendant was not honoring these repurchase agreements, and referred Elliott to its attorneys; subsequently, on two occasions Elliott communicated with defendant’s attorneys, requesting that defendant repurchase the bonds as it had agreed, but was refused; on the trial plaintiff again tendered the bonds to defendant, which was refused; plaintiff offered to deposit the. bonds with the court so that the court could deliver them to the defendant in the event that judgment was entered for plaintiff.

We are of the opinion that plaintiff made out a prima facie case and that the court erroneously allowed the motion to find for the defendant. The proof sufficiently showed that defendant received the letter sent on August 1st by registered mail, thus the prerequisite written notice was observed. Not only did plaintiff’s testimony as to mailing the letter raise a presumption of its receipt by defendant (Cooke v. Industrial Commission, 340 Ill. 309; Keogh v. Peck, 316 Ill. 318), but the return receipt signed by it is prima facie evidence that it received the letter on the date of the receipt. United States Revised Statutes, sec. 3928, as amended —U. S. Code Annotated, Title 39, sec. 386, 1933 Cumulative Pocket Part. We do not seriously view the argument that the envelope in which the letter was sent may have been empty when it was received. The evidence of plaintiff that he enclosed the letter in the envelope and the presumption that it remained there, rebut any such argument.

Cases cited by defendant are not in point. For the most part they have to do with the question whether notice was given in time, the parties receiving the notice claiming that it was received too late to comply with certain contracts.

There was abundant evidence that defendant refused to -repurchase the bonds. It so stated to Ash and'to Elliott. Also, the tender made upon the trial was refused. When it is shown that a tender would be useless or unavailing it is unnecessary to make it, even if it were a condition precedent. Kincaid v. Over-shiner, 171 Ill. App. 37; Osgood v. Skinner, 211 Ill. 229.

Where the agreement requires the acts of both parties to be done at the same time, one is not obliged to perform his part before the other. Manistee Lumber Co. v. Union Nat. Bank of Chicago, 143 Ill. 490. Under these conditions the word “tender” means only a readiness, willingness and ability on the part of one of the parties to do the acts which the agreement requires him to perform, provided the other will concurrently do the things which he is required to perform. Clark v. Weis, 87 Ill. 438.

The court erred in striking out, as hearsay, the testimony of Ash as to the reports made by the bank messengers. He testified that in the regular course of business bank messengers presented the draft and bonds to defendant and made written reports of the results of these presentations, which reports were given to the witness. In O’Heron v. American Bridge Co., 177 Ill. App. 405, it was held that the books of account of one of the parties were admissible in evidence, where the items entered were taken from various and numerous memoranda of other persons, although those other persons were not produced as witnesses. Many other cases have so held. Chicago & N. W. Ry. Co. v. Ingersoll, 65 Ill. 399; Chisholm v. Beaman Machine Co., 160 Ill. 101. In International & C. N. R. Co. v. Starts, 42 Tex. Civ. App. 85, it was definitely held, after an exhaustive consideration, that a witness not a party to the suit might testify from records kept by him in the regular course of business even though those records were based on reports made to him in the regular course of business by persons not produced at the trial as witnesses. The cases cited by defendant to support the ruling of the court in striking the testimony only state the general rule that hearsay evidence is incompetent. They are not concerned with a situation like that presented in the instant case, where the reports were made by the messenger in the regular course of business and the witness is not a party to the suit.

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

Beversed cmd remanded.

Matchett, P. J., concurs.

Mr. Justice O’Connor

specially concurring: I agree with the conclusion reached in the foregoing opinion and with what is said in it, except that it does not go far enough.

It had been thought that the day of deciding law suits on quibbles had passed. But it seems the thought is often based on the hope and not on the reality. It often happens under our archaic way of trying cases that everyone who has anything to do with a lawsuit —lawyers, witnesses, even spectators — is familiar with the facts, and that the only one who does not know them is the judge, because the evidence, as the late Judge Gary said, “is not visible to the judicial eye.”

In the instant case the evidence not only made out a prima facie case, as the opinion of the court holds, but made out a very strong case for the plaintiff. It is to be hoped that hereafter most, if not all, of the facts will be adduced before the actual trial begins, pursuant to section 58, and other sections of the new Practice Act in connection with Bules 17,18 and 19, adopted by our Supreme Court, so that there will be fewer appeals and reversals for failure to bring out the facts.

Moreover, I think the rule barring what is termed “hearsay evidence” ought to be greatly relaxed if not entirely abolished in civil cases. What would be designated hearsay evidence and excluded in court is acted upon in business transactions constantly. If business could not be carried on by what is said and done in the nature of hearsay evidence, practically all business would stop at once. It ought to be assumed that if such evidence were admitted in court, the judge and jury would take that fact into consideration in determining the truth of the point in controversy.


text:
    In re Estate of W. Henry Boening, Deceased. Francis X. Gilmore et al., Appellants, v. Ida M. Boening, Executrix of the Estate of W. Henry Boening, Deceased, Appellee.
    Gen. No. 37,331.

      Opinion filed April 2, 1934.
    Heard in the first division of this court for the first district at the February term, 1934.
    Rehearing denied April 16, 1934.
    Gilmore, Hendricks & Cullen and Butz, Hutchinson, Nutt, Lane & Murphy, for appellants; Edwin L. Hendricks, of counsel.
    Albert E. Grammer, for appellee; O. W. Coler and Stephen S. Snyder, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Claimants in the probate court were allowed their claim in the estate of W. Henry Boening, deceased, for $1,500 as attorneys’ fees for legal services alleged to have been rendered the estate, to be paid in due course of administration. The executrix, hereafter called defendant, appealed to the circuit court; upon motion of claimants the court struck the first appeal bond filed by the defendant, but denied the motion to strike the second appeal bond and approved the same; claimants, electing to stand by their motion, introduced no evidence to support their claim; the court thereupon held against them and it was adjudged that they take nothing. Claimants appeal to. this court, asserting that the court was in error in denying their motion to strike the second appeal bond and to dismiss the appeal.

The right to appeal from probate proceedings to the circuit court is purely statutory and a strict compliance with the statute granting such right is required. Davison v. Heinrich, 340 Ill. 349; Hall v. First Nat. Bank of Pittsfield, 330 Ill. 234; Drainage Com’rs v. Harms, 238 Ill. 414.

Claimants argued below, and in this court, that the form of the appeal bond is not as prescribed by the statute as a condition of the appeal. Defendant asserts that the appeal bond complies with certain statutes and that if it complies with the requirements of any of these statutes it is sufficient.

The question as to what statute applies to an appeal from an order allowing or rejecting a claim filed in the probate court, was considered in Pence v. Pettett, 211 Ill. App. 588. In that case, after citing the various statutes pertaining to appeals of judgments from the probate court to the circuit court, with their conditions, the court concludes that an appeal from a judgment allowing or rejecting a claim must be taken in conformity with ch. 79 (Justices of the Peace), If 116, Illinois Statutes (Cahill), in pursuance of ch. 3, ft 69 (Administration of Estates) which provides, in terms, that an appeal in such a case must be taken “in the same time and manner appeals are now taken from justices of the peace to circuit courts. . . . ” To the same effect are Freeland v. Estate of Freeland, 245 Ill. App. 286; Haaren v. Miller, 139 Ill. App. 405, and Barker v. Estate of Thompson, 98 Ill. App. 78.

It is also the rule that if the bond filed does not comply with the statute, claimants have a right to move that it be stricken and the appeal dismissed. Pence v. Pettett, supra; Smith v. Davis, 89 Ill. 203; Wood v. Tucker, 66 Ill. 276. In the latter case the court said that the appellee ‘ ‘ should not be driven to litigate and settle doubtful legal questions before he can recover on an appeal bond; and on the failure of the appellant to execute such a bond, it becomes the duty of the court, when asked, to dismiss the appeal.”

In what respects did the second bond filed fall short of the requirements of the statute? In the first bond the penalty was named at $1,500, the amount for which the claim was allowed. The court evidently recognized that this did not comply with the statute, ch. 79, U 116, which provides that the penalty shall be double the amount of. the judgment and costs — hence the court properly struck the bond. The statute also gives the form of the bond, with the conditions, to be filed in such a case. The conditions are:

“. . . if the (appellant) shall prosecute his appeal with effect, and pay whatever judgment shall be rendered against him by said court upon the trial of said appeal, or by consent, or in case the appeal is dismissed, or in case the matter in controversy is settled between the parties to the action without a trial by the court appealed to, will pay the judgment rendered against him by the said justice . . . and all costs occasioned by said appeal . . . then the above obligation to be void; otherwise to remain in full force and effect.”

The second bond filed contained only the condition that the appellant should pay the amount of the judgment, with costs, in case a judgment was entered in the circuit court against the executrix of the estate, omitting the provisions touching “a judgment rendered by consent, or in case the. appeal is dismissed, or in case the matter in controversy is settled between the parties to the action without a trial by the court appealed to.” The omission of these conditions was involved in the case of Smith v. Davis, 89 Ill. 203. The court, after noting these omissions, said:

“Whilst it may be true that the precise language of the statute need not be employed, it is certainly true that the substance must be the same; and whilst it may be true that a bond not in substance the same would bind appellant and his sureties as a common law obligation, still, the appellee has the right to insist upon a bond in the form prescribed by the statute. On a motion to dismiss, the appellant may be ruled to give a statutory bond, and failing to do so, the appeal may be rightfully dismissed.”

In the earlier case of Brown v. Keirns, 13 Ill. 296, the court held that the circuit court should have allowed the motion to dismiss the appeal because the bond did not comply with the statute. That was an extreme case, where the penalty in the bond was very slightly less than double the amount of the judgment. The court, however, said that although the deficit “may seem trifling,” nevertheless the bond did not comply with the statute, which required the penalty to be double the amount of the judgment. We doubt if so strict a ruling would now control. In Davison v. Heinrich, supra, an appeal was taken to the circuit court from an order of the probate court denying the probate of a will; motion was made to dismiss the appeal on the ground that the appeal fee had not been paid; the appellants argued that the statute under which they had appealed did not provide for an appeal fee. The Supreme Court held to the contrary, saying that it is clear that the appeal is governed by the statute pertaining to appeals from justices of the peace, which required an appeal .fee to be paid. As it was conceded this had not been paid, the court said, “... it follows that the circuit court erred in denying the motion to dismiss the appeal for want of jurisdiction (citing cases) and its decree must be reversed unless appellant has waived the question of the jurisdiction of the circuit court. ...” In accord with this are Hall v. First Nat. Bank of Pittsfield, supra, and Hill v. City of Chicago, 218 Ill. 178. Upon the authority of these decisions, we hold that the second bond filed did not comply with the statute and that the motion of claimants to strike the same should have been allowed.

Defendant, however, says that claimants waived the question of jurisdiction by submitting themselves to the court. The record does not support this claim. Claimants filed a special and limited appearance, “for the sole purpose of questioning the jurisdiction of the court” in the cause. When claimants moved to strike the first bond they again repeated that they appeared specially, and when the final order was entered it shows that claimants were still appearing specially to object to the jurisdiction of the court and for the purpose of objecting to the second appeal bond, on the ground that it did not comply with the statute. The order further reads that claimants, “to avoid a waiver of their objections to the jurisdiction of the court andto the said new appeal bond, elect to stand on their said objections and refuse to proceed with the hearing of this cause, or to in anywise participate in a trial of the said cause.” Undoubtedly it is true that one may by his conduct, such as appearing generally and participating in a hearing on the merits, waive the question of jurisdiction. Davison v. Heinrich, supra; People v. Southern Gem Co., 332 Ill. 370. But the record in this case shows clearly that claimants had done none of these things and had not waived the question of jurisdiction.

Claimants in this court ask that the judgment be reversed, which will be done, and that the cause be remanded to the circuit court with directions to dismiss the appeal. We are not disposed to accede to this latter request. The defendant could readily prepare and file a bond in the proper form, complying in every respect with the statute. She ought not be deprived of the benefit of appeal because of her failure to do this and of the erroneous view of the trial court in holding that the bond was in statutory form. We are inclined to think that justice would be better served if the cause were remanded to the circuit court with directions to grant the motion of claimants to strike the second appeal bond and to permit the defendant to file a new appeal bond within a short day, to be fixed by the court. In Zuckerman v. Hawes, 146 Ill. 59, the Appellate Court struck an appeal bond and dismissed the appeal. The Supreme Court said, in substance, that the appellant had attempted to comply with the order of the court in filing the bond, and that while the court properly struck it, it should have allowed the appellant further time within which to file a good bond, and that to refuse to grant this time and to instantly dismiss the appeal would result in wrongfully depriving the appellant of the benefit of his appeal. Thé judgment of the Appellate Court was reversed and the cause was remanded with directions to permit the appellant to file a new bond. This will be the order in the present case.

The judgment is reversed and the cause is remanded to the circuit court with directions to sustain the motion of the claimants to vacate the order approving the second appeal bond, and to allow the defendant to file another appeal bond within such time as the court may in its discretion fix. t

Reversed and remanded with directions.

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


text:
    Marguerite Mary Higgins, a Minor, by William F. Higgins, her Father and Next Friend, Appellee, v. Peggy Byrnes, Trading as Delmar Beauty Salon, Appellant.
    Gen. No. 37,348.

      Opinion filed April 2, 1934.
    Heard in the first division of this court for the first district at the February term, 1934.
    Samuel L. Cohen, for appellant; Julius L. Kabaker, of counsel.
    Cavanagh & Crowley, for appellee; Joseph P. Brodie, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Marguerite Mary Higgins, hereafter called plaintiff, 16 years of age in May, 1932, at that time, accompanied by her mother, went to the Delmar Beauty Salon, hereafter called defendant, for the purpose of obtaining a permanent wave of her hair; she was burned by the apparatus used and, bringing suit for compensation for injuries sustained, had a judgment for $300, from which defendant appeals.

Defendant was paid $2.50 for a permanent wave and plaintiff was placed in charge of an operator, Minerva McBrayne, who applied the apparatus customarily used; this involves eoilers which are wound into the hair, and then, as a witness testified, “a machine is placed upon the head” and the electricity and heat are turned on.

Plaintiff complained to the operator at least four times of the excessive heat on her head and the operator each time put cotton on the spot where plaintiff said it was hurting. When plaintiff returned home her head was still hurting and she applied some ointment to a red spot on the left side of her head right above her .ear; home remedies were applied and then she was taken to a Dr. Hamilton who treated her about 20 times. The doctor testified as to the character of the injury and his treatment, and gave as his opinion that plaintiff would have more or less óf a scar at this place the rest of her life, and that hair would not grow on the scarred surface. Plaintiff testified that hair did not grow on this spot.

It is established beyond controversy that plaintiff was burned, either because of a defect in the apparatus or some lack of skill in applying it. There was opinion testimony that the apparatus was not defective; if this were the fact there must have been unskilful operation of the apparatus which caused the injury to plaintiff.

In Gavin v. Kluge, 275 Mass. 372, the plaintiff while receiving a permanent wave was burned on the scalp. The opinion describes in detail the machine which was used. The court said that while there was no evidence that the apparatus was defective, the inference was justified “that the apparatus and the process were such — and known to the defendants to be such — that if precautions were not taken to protect the plaintiff’s scalp from the heated spindles her scalp would be burned,” and that the trial court could find that had defendant taken proper precautions, such as the careful insertion of cotton above the scalp or some act equally effective, before the heating process began, in order to keep the bases of the spindles or coffers from coming into direct contact with the scalp, plaintiff would not have been burned; that the court could properly infer that such failure caused the plaintiff’s injury and that this was a failure.to exercise the ordinary skill and. ability-of persons engaged in this business. The opinion also said that when the plaintiff submitted herself to have her hair treated by the defendants she did not assume the risk of their being negligent. The facts in that case are precisely like those in the instant case and we are in accord with the views expressed in that opinion.

In Fields, Inc. v. Evans, 36 Ohio App. 153, 172 N. E. 702, the plaintiff was burned in receiving a permanent wave in a beauty shop of the defendant. The judgment for the plaintiff was affirmed. In Augusta Friedman’s Shop, Inc. v. Yeates, 216 Ala. 434, the plaintiff was burned while receiving a permanent wave in the shop of the defendant. The court held that the evidence tended to establish the fact that plaintiff’s scalp was injured through the negligence of one of the employees of defendant, and the judgment for plaintiff was affirmed. In Cornwell v. Leiter Bldg. Stores, Inc., 259 Ill. App. 460, a judgment for plaintiff, whose scalp was burned while receiving a permanent wave, was affirmed.

There being no evidence that the apparatus used was defective, it follows that the injury to plaintiff was caused by the failure of defendant’s operator to use the necessary precautions to protect plaintiff’s scalp by the use of cotton or some other effective means, and this failure was negligence.

Defendant cites Kraus v. Becker, Ryan & Co., 265 Ill. App. 525, where the facts are very similar to those in the instant case. Some distinguishing facts might be suggested but we do not indicate them, for we are of the opinion that the view expressed in the majority opinion is not in accord with other reported decisions in like cases. We cannot assent to what is held in that opinion.

Bollenbach v. Bloomenthal, 341 Ill. 539, involved the breaking of a tooth by a dentist who was extracting it, a small piece going down into plaintiff’s trachea and into her lung; the evidence showed the tooth was brittle and broke into many minute pieces; that the dentist, an experienced man, did not have complete control of the tooth, as its brittle condition could not always be reckoned with, and hence the dentist could not be liable for a mishap he could not control. This, obviously, is not applicable to the instant case, where the appliances used were under the control of the defendant.

We find nothing in the record upon which to base the argument that an assignment of the right of action arising out of personal injuries is void. There was no assignment of this sort. The declaration alleged that the parents of the minor child assigned to plaintiff their right to recover for moneys expended for medical treatment of plaintiff. The record further shows that this question was not raised upon the trial.

The amount of the judgment was very modest, and as defendant is clearly liable, it is affirmed.

Affirmed,.

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


text:
    The People of the State of Illinois ex rel. Oscar Nelson, Auditor of Public Accounts of the State of Illinois, Complainant, v. Citizens State Bank of Melrose Park et al., Defendants. Appeal of Louis E. Nelson, Receiver, Appellant, v. Rose Fippinger et al., Intervening Petitioner, Appellees.
    Gen. No. 37,366.

      Opinion filed April 2, 1934.
    Heard in the first division of this court for the first district at the February term, 1934.
    Crowe, Gorman & Savage, for appellant; G. W. Wesselink, of counsel.
    Guy C. Guerine and Paul W. Brust, for appellees; Guy C. Guerine, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal by the receiver from an order allowing Rose Fippinger and certain other intervening petitioners a preference as against all the assets of an insolvent bank now in the hands of a receiver.

The Citizens State Bank of Melrose Park, Illinois, was closed by the auditor of public accounts on October 24, 1930, and Louis E. Nelson was appointed receiver for the bank, which appointment was subsequently approved and confirmed by the circuit court.

July 31, 1933, the petitioner filed her intervening petition, in which various other persons joined, asking that they be allowed a preferred claim against all the assets of the bank because of a fraud practiced on them by the bank in the sale of certain real estate bonds to them; reference was had to a master who took evidence and reported in favor of the position of the petitioners.

The chancellor entered an order in accordance with the master’s recommendations, finding that a trust had arisen in their favor by reason of the fraud and deceit of the bank; that they had paid $11,400 to the bank, which.funds were impressed with a trust which they were entitled to follow into the hands of the receiver, and. the petitioners were given a preferred claim for this amount against all the assets of the bank.

The fraud upon petitioners is conceded by the appellant, the receiver. The bank had sold petitioners certain real estate bonds to the amount of $11,400, representing that they were first mortgage bonds, whereas in fact there was a prior mortgage of $6,500 on the property securing the bond issue.

In the brief for the receiver counsel states that he is not objecting to the order entered by the court in so far as it finds that -a constructive trust arose in favor of the petitioners as a result of the acts of the bank. The receiver asserts, however, that the fund or res of the constructive trust has not been traced into the assets of the bank either in its original or substituted form, and therefore the trust can be imposed only on the cash assets of the bank on the date of its closing, in which petitioners may share equally with all other creditors of a -like class and rating.

The bonds sold to petitioners were dated March 23, 1929, and' the money received from their sale was placed in the assets of the bank. The assistant cashier testified that inT929, and .until October, 1930, the bank bought stocks and bonds and made some mortgages; that to the best of the witness’ recollection the amount of money invested by the bank in mortgages, stocks and bonds in 1930 was at least $250,000, and that some of the mortgages were still in the assets of the bank at the time it closed; the witness did not know what stocks and bonds were purchased nor what mortgages were made; witness also testified that at the time of the closing of the bank the book value of its assets was a little over $1,000,000, and the actual cash on hand and money due from other banks on this date was approximately $9,800.

The earlier cases seem to hold that petitioners, under such circumstances, would have been required to identify the property sought to be impressed as the very property they had confided to the bank. The more modern doctrine holds that a constructive trust will attach to successive substitutions so long as they can be identified as the product, either as a whole or in part, of the original trust fund, the superior rights of others not intervening.

In the very recent case of People v. Peoples State Bank of Maywood, 354 Ill. 519, the court said: “Since the right to reclaim a trust fund is founded on the right of property, and not on the ground of compensation for its loss, the beneficiary must be able to point out the particular property into which the fund has been converted. When he is unable to do so, the trust fails and his claim becomes one for compensation only and stands on the same basis as the claims of general creditors. It is as necessary to trace the proceeds of a check or draft constituting part of a trust fund, as it is to trace the proceeds of any other species of personal property; and a trust fund traced into a bank account, if its identity can be established, and no superior rights of innocent parties have intervened, will be held for the benefit of the cestui que -trust. The question in every case where it is sought to trace trust property is whether it can be identified in its original or altered form. ’ ’

It follows, therefore, that the receiver in the instant case in whose bank is a fund impressed with a trust, cannot be required to repay it in preference to the claims of general creditors unless the trust fund can be identified or traced into some other specific fund or property. In the very recent case of People ex rel. Nelson v. First State Bank of Barrington, 274 Ill. App. 46, consideration was given to the question of the duty of one seeking a preferential claim to identify the fund upon which he seeks to impress a trust. We there quoted with approval from Slater v. Oriental Mills, 18 R. I. 352, where the court said in substance that while one who has been wronged may follow and take his own property, or its visible product, it is quite a different thing to say that he may take the property of somebody else.

The evidence in the instant case shows that the money received from petitioners was mingled with the general funds of the bank; the particular money paid oby them was not traced into any specific property; investments approximating $250,000 were made by the bank in the year 1930, and some of these were still in the assets of the bank when it closed. There is no showing that all or any part of petitioners ’ money was used to purchase any of these investments. Formerly when the trust money was mixed with the money of the trustee, the beneficiary wás compelled to stand as a mere unsecured creditor. This was because of the fact that money was not earmarked, and for that reason could not be recovered in species. The later cases have ruled that in case of blended moneys in a bank account, reduced by withdrawals from time to time, it will be presumed that the sums withdrawn were from moneys which the trustee had the' right to withdraw, .and that the balance left includes the trust fund he has no right to use. People v. Dahlgren State Bank, 264 Ill. App. 513; People v. Iuka State Bank, 229 Ill. App. 4.

In Woodhouse v. Crandall, 197 Ill. 104, it was held that where money impressed with a trust has been placed in the vaults of a bank the law presumes that the trustees drew out their own money first and what remained belonged to the trust; and in People v. Peoples State Bank of Maywood, supra, this rule was enforced, the court saying that if there is a balance less than the trust money the fund must be regarded as dissipated except as to this balance.

In the present case there is no showing that the general cash fund of the bank was not dissipated at some time after the deposit of petitioners’ money. The cash assets of the bank on the date it closed, which was approximately 15 months after the receipt of petitioners’ money by the bank, were about $9,800, which is less than the amount of the claims, $11,400, allowed to petitioners. Petitioners’ right to recover is therefore limited to the cash assets of the bank on the date it closed, and in this fund they can have no more than a pro rata share along with other preferred creditors.

The order of the chancellor entered October 30,1933, adjudging that the petitioners should have a preferred claim against all the assets of the bank and as against its general creditors, is reversed and the cause is remanded with instructions that an order be entered that petitioners be allowed a preferred claim as to the cash assets of the bank on the date of its closing, along 'with all other creditors of a like class.

Reversed and remanded with directions.

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


author: Mr. Justice O’Connor

text:
    Samuel Witting, Defendant in Error, v. Carl Claras et al. Peter Gribulis and Frances Gribulis, Plaintiffs in Error.
    Gen. No. 37,184.

      Opinion filed April 2, 1934.
    Heard in the first division of this court for the first district at the December term, 1933.
    John T. Zuris, for plaintiffs in error.
    Berger & Newmark, for defendant in error; Lawrence S. Newmark and Gerald G. Bolotin, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal the defendants seek to reverse a decree entered in a foreclosure suit. Complainant produced the notes and trust deed and they were received in evidence. Complainant was then called as a witness for defendants and testified that he was second vice president of the Continental Illinois Bank and employed in the trust department; that he obtained the notes in question (which were then in default) from Mr. Tosch, an officer of the bank, for the purpose of foreclosure; that the equitable owners of the notes were certain trusts in the Continental Illinois Bank; that he did not know the people who were interested in the trusts.

■ A. C. Tosch testified that he was assistant secretary of the bank; that he turned the notes over to complainant, pursuant to authority from the note owners and of the officers of the bank in charge of the trust account.

The sole contention of the defendants is that the complainant was not the legal holder or owner of the notes; that he had no beneficial interest in them and therefore could not maintain the bill to foreclose the trust deed. We think there is no merit in this contention. Bourke. v. Hefter, 202 Ill. 321; Hirsh v. Arnold, 318 Ill. 28; Morrison v. Steinberg, 151 N. Y. S. 607; National Bank of Rochester v. Erion-Haines Realty Co., 206 N. Y. S. 452.

In the Bourke case a bill was filed to foreclose a mortgage. The complainant testified that -the notes “were transferred to him for the purpose of commencing foreclosure proceedings, and that he paid nothing for them. . . .

“The court found that appellee (complainant) was the legal holder of the notes.” It was contended that the decree was wrong because the real owner of the note should have been made a party to the suit. The court said (p. 323): “There was no evidence as to the real owner of the notes. They were in the possession of G-reenebaum Bros., and were delivered to appellee for the purpose of bringing suit and he was clothed with the legal title to them. Appellant was not prevented from making any equitable defense she had to the notes. . . . The real owner having put the notes in the power of the appellee by having them endorsed to him unconditionally, cannot be heard to complain, and, as we have seen, no harm was done appellant thereby.”

In the instant case the defendants were invited to present any defense they might have to the notes, but none was presented. The notes were negotiable and passed by delivery. Sec. 30, ch. 98, Cahill’s 1933 statutes. Complainant was the legal holder of the notes and was entitled to maintain foreclosure, and there is no contention that the defendants were in anywise injured.

The Hirsh case (318 Ill. 28), was a bill to foreclose a mortgage. It appeared that Hirsh, the complainant, was chairman of the board of trustees of the Grand Lodge. Defendants denied that complainant Hirsh was the owner of the notes and trust deed. It appeared from the evidence that he had no beneficial interest in the notes but it was held that he could maintain foreclosure, and while the lodge, the beneficial owner, might have been made a party complainant, it was not necessary that this be done.

In the Morrison case (151 N. Y. S. 607), it was contended that plaintiff in a suit to foreclose was not the real party in interest and therefore could not maintain the action. The court denied this contention and said (p. 609): “But the plaintiff holds the bond and mortgage by a written assignment from Silverstein. He had the legal title at the time the action was commenced, and while it is true the testimony shows they were assigned to him merely for the purpose of bringing the action, that in no way invalidates the assignment.”

The notes and trust deed having been produced by complainant, and the defendants being entitled to interpose any defense they might have, and no defense having been interposed, they were in nowise injured. Plaintiff was the legal holder of the notes and entitled to maintain foreclosure.

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

Decree affirmed.

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


text:
    William C. Brauer, Appellee, v. John T. Hayes, Executor of the Estate of Maria Brauer, Deceased, Appellant.
    Gen. No. 37,228.

      Opinion filed April 2, 1934.
    Heard in the first division of this court for the first district at the December term, 1933.
    David G. Robertson, for appellant.
    Edward Byrnhard Zahn, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal John T. Hayes, executor of the estate of Maria Brauer, deceased, seeks to reverse an order entered by the circuit court of Cook county ordering the distribution of certain personal property in his hands as executor of the estate of Maria Brauer, deceased.

The record discloses that William Brauer of Chicago died testate and his will was probated in the probate court of Cook county. The material parts of his will are: “Second: I give, devise and bequeath unto my beloved wife, Maria Brauer, for and during her natural life, all my estate, real and personal or mixed . . . with full power to sell, convey, partition or otherwise dispose of and to re-invest proceeds thereof as in her mind she may deem best for her maintenance and support and for the preservation of my said estate.

“Third: Upon the death of my said wife and after her burial and funeral expenses are fully paid, I direct that all the rest, residue and remainder of my estate be divided into three equal parts, between my three children, William C. Brauer, my son, Alma Hayes and Emma Lynge, my daughters, share and share alike.” His son-in-law, John T. Hayes, was named as executor. He was appointed executor and apparently carried out his duties faithfully.

William Brauer, the testator, died in 1918. His estate consisted mainly of a six-apartment building and a two-apartment building, and about five years after his death these buildings were sold for $35,386.34.

March 12, 1927, Maria Brauer, surviving widow, executed her will. She died March 27, 1927, and her will was probated in the probate court of Cook county. She also appointed her son-in-law, John T. Hayes, as executor; he duly qualified and is now acting as such. By the terms of Maria Brauer’s will she gave and bequeathed to her daughter, Emma Lynge, “my watch, to my granddaughter, Alice Hayes, my breast pin, and to my daughter Alma Hayes, all my household furniture and personal belongings.” She also gave to her daughter, Emma Lynge, $1,000 and to her son, William C. Brauer, $1,000, and all the rest of the estate she bequeathed to her daughter, Alma Hayes, wife of the executor. The will then provided: “It is understood that the Corpus of the estate of which I have had a life estate given to me by the terms of my late deceased husband’s will, is to be disposed of after my decease according to the terms of his will.”

It seems to be conceded that Maria Brauer had no property except that which was given to her under the terms of her husband’s will. We think it further appears from the evidence that after the death of William Brauer in 1918, Maria Brauer obtained rents from the two apartment buildings above mentioned, and after they were sold for more than $35,000, the money was invested from time to time in stocks and bonds so that at the time of Maria’s death there were certain stocks and bonds and some money in Maria’s possession.

While the estate of Maria Brauer was being probated in the probate court of Cook county, William C. Brauer and Emma Lynge, children of the deceased, filed a petition against the executor claiming that he had not given to them their share of the property; that he had inventoried in the estate of Maria Brauer more property than belonged to that estate and that some of the property thus inventoried should be distributed under the will of their father, William Brauer. On the other hand, the executor contended that the property he had inventoried in the estate of Maria Brauer, deceased, belonged to her separate estate and should be disposed of in accordance with the terms of her will. The probate court sustained this contention, but on appeal the order of the probate court was reversed. The circuit court found, among other things, that Maria Brauer had in her lifetime been given $1,000 as a widow’s award from the estate of her deceased husband, William Brauer; that this $1,000 was Maria’s separate property, and it was ordered that this $1,000 be divided into three equal parts and one of such parts given to each of Maria Brauer’s surviving children, William, Emma and Alma; that the watch, brooch and household furniture mentioned in the will of Maria Brauer be distributed in accordance with the terms of her will,' and that the rest of the property in the hands of the executor, after paying costs of administration, be divided into three equal parts, one of such parts to be turned over to William C. Brauer, one to Emma, and one' to Alma.

As stated, William C. Brauer and his sister Emma prayed an appeal from the order of the probate court of Cook county to the circuit court of Cook county, which was allowed upon filing an appeal bond of $250 within 20 days. The bond was filed by William alone, and counsel for the executor contends that the circuit court had no jurisdiction over Emma Lynge because she did not appeal from the order of the probate court, in that she failed to file a bond or to join in the bond given by her brother. This point was not made in the trial court and cannot be urged for the first time here. The bond given on appeal from the probate to the cir- . cuit court is in the nature of process. On the hearing in the circuit court Emma appeared and testified in her own behalf as well as in behalf of her brother, as appears in the record, contrary, however, to what is shown in the abstract. No objection was made on the hearing and therefore Emma was properly before the circuit court. In re Voislowsky, 264 Ill. App. 398.

Counsel for the executor further contends that the evidence disclosed that part of the money, stocks and bonds in Maria’s possession at the time of her death were her separate estate and therefore should be disposed of under the provisions of her will. On the other side, counsel for William C. Brauer and his sister Emma, seems to concede that if Maria Brauer had in her lifetime kept the stocks, bonds and rents derived from the real estate separate and distinct, the executor’s contention could be maintained; but counsel argues, ‘ ‘ There is no competent evidence in the record that there was any income from the estate of William Brauer, and if there was an income it was so intermingled with the principal of the estate so that it could not be distinguished.” We think neither of these contentions can be sustained because it appears from the record, and is conceded by counsel, that the only property Maria Brauer owned was personal effects and household furniture mentioned in her will. And it is also conceded that all of the property in her possession at the time of her death came from her deceased husband’s estate. She was given only a life interest in this property and after her death it passed under the will of her deceased husband. By his will he gave Maria Brauer, his wife, a life estate in all of his property, and what remained after her death was to be divided equally among his three children. The property in controversy here must be distributed under the will of William Brauer equally among his three surviving children.

There should have been no separate finding in reference to the widow’s award because all of the property in the possession of Maria at the time of her death must be distributed under her deceased husband’s will.

The order of the circuit court appealed from is modified in this respect, and as so modified will be affirmed.

Order affirmed as modified.

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


text:
    Felix Matarrese, Appellee, v. Attillio Monaco and Hartford Accident and Indemnity Company, Appellants.
    Gen. No. 37,251.

      Opinion filed April 2, 1934.
    Heard in the first division of this court for the first district at the December term, 1933.
    Rehearing denied April 16, 1934.
    Abrams, Sherman & Lewis, for appellants; Irving S. Abrams, of counsel.
    Rocco De Stefano, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against the defendants on a bond executed by them in appealing from a judgment for costs entered by the municipal court of Chicago in favor of plaintiff and against defendant Attillio Monaco. There was a trial without a jury and a finding and judgment in plaintiff’s favor for $150, and the defendants appeal.

The record discloses that Attillio Monaco brought suit against Felix Matarrese in the municipal court of Chicago, and after the issues were joined there was a jury trial and a verdict finding the issues against the plaintiff; judgment was entered on the verdict and Monaco appealed to this court. The appeal bond on which the instant case is brought was executed by the defendants, Monaco as principal, and the Hartford Accident & Indemnity Co. as surety. Monaco failed to file his abstracts and briefs as required by the rules of this court, whereupon Matarrese moved this court to dismiss the appeal and for $150 damages, claiming he had become liable to pay his counsel this amount for services rendered in following the appeal, which was the reasonable and customary charge for such services. At the same time Monaco made a counter motion to dismiss his appeal, which was allowed, the appeal dismissed, and afterward this suit was instituted on the appeal bond.

On the trial plaintiff offered evidence from which the court might well find, as it apparently did, that the services rendered by counsel for plaintiff in following the appeal prosecuted by Monaco to this court, as above stated, were reasonably worth $150 and that plaintiff had become liable to his counsel for this amount. Most of the trial in the instant case, however, was taken up on defendants’ contention that the dismissal of Monaco’s appeal, above referred to, was res adjudicata of the questions involved in the instant case. The argument in support of this is that since Matarrese, who was a defendant in the other case, and who had judgment in his favor for costs entered against Monaco, had asked for damages of $150 when he made his motion to dismiss the appeal, and since the court had not given him any damages, it was an adjudication that he was not entitled to any. "While there is some plausibility in defendants’ contention because of the fact that Matarrese, in moving to dismiss Monaco’s appeal and for damages, claimed that he was entitled to $150 which he was obligated to pay his counsel in that case, yet there is no warrant in law for such allowance, nor was there any warrant in law for Matarrese’s contention that he was entitled to damages of $150 for attorney’s fees in following the Monaco appeal to this court. Section 101 of the Practice Act of 1907 provides that where a judgment, not for the recovery of money, is appealed to this court or to the Supreme Court, and the appeal is dismissed for want of prosecution, this court or the Supreme Court as the case may be, shall, upon dismissal for such cause, enter judgment for not less than $50 nor for more than $250 damages; that if the suit is for the recovery of money and the appeal is dismissed for want of prosecution, this court or the Supreme Court shall enter judgment for not less than 5 nor more than 10 per cent of the amount of the judgment recovered in the trial court. It is obvious that no warrant is found in this section for awarding damages for attorney’s fees incurred upon a dismissal for failure to prosecute an appeal. If damages were awarded under section 101 it would in no way affect damages that might be legitimately claimed on the appeal bond. In the instant case the trial judge properly held that the questions involved had not been adjudicated by the dismissal of Monaco’s appeal.

The defendants further contend that the finding and judgment are contrary to the manifest weight of the evidence; that the plaintiff failed to prove his damages ; that the evidence shows that Matarrese agreed to pay his counsel $150 for trying the Monaco case in the municipal court and not for following the appeal prosecuted by Monaco to this court. On the othfer hand, counsel for plaintiff contends that the evidence warranted the court in finding that the services performed by counsel in following the appeal in the Monaco case were reasonably worth $150. We think the finding of the trial judge on this question, in favor of the plaintiff, was warranted by the evidence. Certain it is that we would not be warranted in holding that the finding .was against the manifest weight of the evidence. In these circumstances, the amount of the judgment ought not to be disturbed if the law warranted such allowance. Although the point is not made, we hold that the judgment cannot stand because it is obvious that in a suit brought on a bond in appealing from a judgment in the trial court to this court, where the judgment is affirmed or the appeal dismissed, attorney’s fees incurred in following the appeal are not covered by such an appeal bond. First Nat. Bank v. Fidelity & Deposit Co., 106 Ill. App. 367. In that case an action of debt was brought on a bond given in appealing from a judgment in the circuit court to the Appellate Court, and it was contended that under the conditions of the bond the attorney’s fees and the costs of printing briefs and defending the appeal were elements of damages that might properly be included. The bond in that case provided that in case the judgment was affirmed, the obligor agreed to pay the sum of $200 for “printing briefs and abstracts in and about defending the said appeal ...” and the sum of $500 “paid out and expended by the plaintiffs for attorneys and counselors’ fees in defending the said appeal both in the Appellate Court and the Supreme Court.” The court held that although the bond provided for the payment by the obligors for the costs of printing briefs and abstracts and attorney’s fees, they were not proper elements to be allowed in a suit on a bond. The court there said (p. 373): “It is contended that by the express terms of the bond, the appellee covenanted with the appellants that the shoe company should prosecute its appeal and pay the costs rendered against it in case the judgment and order appealed from should be affirmed by this court, and also that the shoe company should pay any and all damages severally sustained ... by reason of the wrongful prosecution of the appeal to the extent of certain moneys paid out by them respectively for counsel fees and printing briefs for defending the appeal in this court. ’ ’ The trial court held that these items could not be recovered in a suit on the bond, and the judgment was affirmed by the Appellate Court. In that case the court, in speaking of actions upon such bonds, said (p. 374):

“In such actions ‘the successful party recovers only such costs as are taxable under the statute. He can not usually have an allowance for his loss of time and expense in prosecuting the demand or making the defense as the case may be, and the expense for service of attorneys stands upon the same ground as the other personal expenses of the party not embraced in the list of taxable costs.’ Jones v. The People, 19 Ill. App. 300.”

As stated, although the point was not raised in the trial court nor in this court, we feel bound to raise it here because if attorney’s fees incurred by one in following an appeal were allowed as an item of damage in a suit on an appeal bond, then there would be a suit on every appeal bond given. Under the law, such damages are not recoverable. Under the evidence plaintiff was entitled to nominal damages only. We are therefore compelled to reverse the judgment of the municipal court of Chicago; but we think ail the costs in the trial court and in this court ought to be borne by the defendants. Accordingly, the judgment of the municipal court of Chicago is reversed and the cause remanded, all costs to be taxed against the defendants.

Reversed and remanded.

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


author: Mr. Presiding Justice Edwards

text:
    E. W. Hilker, Appellant, v. Peter Radcliff, Appellee.

      Opinion filed March 12, 1934.
    Heard in this court at the October term, 1933.
    Harry Faulkner, for appellant; Henry B. Eaton, of counsel.
    M. R. Sullivan, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

This is an action in assumpsit by appellant to recover from appellee the sum of $19,680.68, being an advancement of $2,500 alleged to have been paid out at appellee’s request, and the remainder for work, labor and materials, expended in the erection of a garage by the appellant for the appellee.

The declaration charges that on January 24, 1928, the Union Trust Company of East St. Louis, as trustee, was the owner of a certain parcel of ground in Madison county, near the junction of State Highway Boutes Nos. 3 and 4; that appellee desired to purchase the westerly 100 feet of same, while appellant wished to buy the easterly 100-feet; that appellee requested appellant to advance for him, and pay to the owner, the sum of $2,500, for the westerly half of such lot, and promised, in consideration thereof, to repay such sum to appellant, who did thereupon pay to the owner, for the appellee, said sum of money, and did also pay, for his one-half thereof, the sum of $2,250; that appellee requested the owner to make, to appellant, a deed to all of such premises, which was accordingly done; also, that on February 12, 1928, appellee requested appellant to erect for him a garage on the westerly 100 feet of such lot, appellant to furnish all labor and materials, and to be paid the reasonable worth therefor, and in addition, 10 per cent for his services; that appellant accepted the proposal, and erected the garage; but that appellee, though requested, refused to pay appellant such sum so advanced, or for the cost of the garage.

To this was pleaded the general issue, and three pleas of the statute of frauds, — namely, that the contract was oral, and not to be performed within a year; that it was for the sale of an interest in real estate, not manifested by any note or memorandum in writing; and that the agreement was void for the reason that it was a verbal declaration of trust, whereas, by such statute, all declarations of trust are required to be evidenced by some instrument of writing.

There was a trial before the court and a jury. At the conclusion of the appellant’s case, the court, after motion made by appellee, directed a verdict for him, following which judgment was entered, and from which this appeal has been taken.

Upon motion to direct a verdict, which is, in effect, a demurrer to the evidence, its truth is admitted for the purpose of the motion, and likewise every fact and conclusion in favor of the opposite party, which the evidence conduces to prove; or, differently stated, every fact which the jury might reasonably have inferred from it, in favor of such opposite party. The only question which the trial court is called upon to determine, at the hearing of such motion, is whether the record contains any evidence which, assuming its truth, fairly tends to prove the material averments of the declaration. Libby, McNeill & Libby v. Banks, 209 Ill. 109; Chicago & N. W. Ry. Co. v. Dunleavy, 129 Ill. 132.

Considering first the claimed agreement as to the $2,500, advanced for the purchase of the lot, the evidence fairly tends to prove that appellant paid same to the owner at the request of, and for the benefit of, appellee, and that the deed to the entire tract, at the request of appellee, was made to appellant. There is nothing from which it might be inferred that the latter was taking any beneficial interest in the westerly 100 feet of the lot, or acquiring any title thereto. The most that can be said is that he permitted the conveyance of the portion of the tract, which appellee was purchasing, to be made to him, as a security for the $2,500 which he had advanced for the appellee, and which the evidence tends to prove the latter owed him.

If the funds, so paid, were in truth a loan to appellee, then the appellant held title to the westerly 100 feet of the lot, as a resulting trust for appellee, in the nature of a security, and the latter would have the right to redeem therefrom; and in such event the statute of frauds would have no application. Reeve v. Strawn, 14 Ill. 94, 96; Cramer v. Hoose, 93 Ill. 503; Towle v. Wadsworth, 147 Ill. 80, 96; 65 Corpus Juris, 422, sec. 184. The resulting trust arising by operation of law was not required to be evidenced by any writing. Towle v. Wadsworth, supra. The arrangement, in effect, being a mortgage, and not an agreement for the sale of land, or any interest therein, the appellant might foreclose the lien in equity, or sue in assumpsit for the money so loaned. Palmer v. Harris, 100 Ill. 276; Vansant v. Allmon, 23 Ill. 30; Rogers v. Meyers, 68 Ill. 92.

Whether the transaction, relative to the $2,500 advancement, was a loan, or otherwise, was a question of fact. Appellant introduced some evidence bearing upon the question, which fairly tended to prove that it was a loan. He was entitled to have the jury pass upon and decide the question of fact, and we think the court erred in taking the question from the jury.

It is urged that appellant should have proven a tender of a deed to the westerly 100 feet in question, before bringing suit; the answer to which is that appellee, upon demand by appellant, refused to pay or further perform.

An "actual tender is not necessary, when, from the acts of the other, or from the situation, it would be useless, or an idle ceremony. If the other party has openly refused to perform on his part, then a tender is not necessary before bringing suit. Scott v. Beach, 172 Ill. 273, 278.

As to the alleged contract for the construction of the garage, it appears from the evidence that no specified time was fixed for its erection; hence it might have been completed within a year of the date of the execution of the contract.

As to the applicability of the statute of frauds in such situation, the rule is stated in 27 Corpus Juris, 178, sec. 96: “In general, an oral agreement to do some particular act, which fixes no definite time for its performance, but which, in view of the understanding of the parties and of its subject matter, is capable of full performance within one year after the making thereof, is not within the statute. Where this is the case, it does not matter that the parties may have held the opinion that work under the contract might be extended beyond the period of one year, or that, as a matter of fact, the performance actually did extend over a greater period than one year.”

In Hulse v. Hulse, 155 Ill. App. 343, this court held that if a contract may by any contingency be performed within one year, it is not within the statute of frauds.

The claimed contract for the erection of the garage was not obnoxious to the provisions of the statute of frauds, requiring all contracts, not to be performed within one year from the malting, to be evidenced by some note or memorandum in writing, signed by the party to be charged, or by his agent duly authorized in writing. Nor does it contravene the section of the statute which prohibits the sale of lands, or an interest therein, unless the contract be evidenced by some writing to be signed by the parties. “A verbal agreement to make or pay for improvements on land is one for labor and materials, or for payment therefor, and is not within the operation of the statute.” 27 Corpus Juris, 196, sec. 135.

Appellant was denied the right to have the jury pass upon the questions of fact involving his right to recover. We think there was sufficient evidence fairly tending to establish appellant’s case, to require its submission to the jury, and that the court erred in directing a verdict for appellee. For which reason the judgment is reversed, and the cause is remanded.

Reversed and remanded.


text:
    The People of the State of Illinois ex rel. Oscar Nelson; Auditor of Public Accounts of the State of Illinois, v. Citizens State Bank of Creal Springs. M. D. Borum, Intervening Petitioner, Appellee, v. F. H. Washburn, Receiver of Citizens State Bank of Creal Springs, Appellant.

      Opinion filed March 12, 1934.
    Heard in this court at the October term, 1933.
    Ferrell & Hay, for appellant.
    D. L. Dutt and Leon A. Colp, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

Appellant is receiver of the Citizens State Bank of Creal Springs, now in course of liquidation. Appellee was a customer of said institution, who, on March 22, 1930, left certain funds at such bank, which he contends were in trust, and that same should be decreed a preferred claim in his favor. The chancellor, after a hearing, so held, and this appeal by the receiver is to test the correctness of such holding.

It appears, from the evidence, that on said March 22, 1930, appellee left with the bank the sum of $2,600 to be invested in U. S. 4th Liberty Loan bonds, when he should so order. The cashier, B. M. Taylor, gave him a receipt therefor, showing that he had left such amount for such purpose. At the same time the moneys so left were mingled with the general funds of the bank by the cashier, who prepared a certificate of deposit, to order of appellant for such, with four per cent interest if the money should be left for four months. This he placed, with a duplicate of such receipt, in the vault, without the knowledge or approval of appellee.

The cashier testified that the funds were left to purchase Liberty bonds, when appellee was ready of should so order; that he informed the latter he would carry them in the certificate of deposit account, and if left for four months, that the bank would pay interest on same, and procure the bonds for him at any time he wanted them; that he did not inform appellee he would issue a certificate of deposit; that the latter did not know same was done, and that it was deposited in the vault; that he placed same in the files of the bank because there was no other place to carry it, except in the deposit account, and that it had to be there to show that the bank had that amount of money; that he understood, all the time the money was there, that it was left with the specific intent of buying Liberty bonds, and for no other purpose.

On March 28, 1931, appellee took his receipt to the bank, was paid interest at four per cent on the amount of the funds he had so left; was also paid $100 on the principal, and given a second receipt showing that the remaining $2,500 had been left to purchase U. S. Liberty Loan bonds. John Taylor, the assistant cashier, who waited upon him, stated that appellee said he wished the matter taken care of in the same manner as the first transaction; whereupon he wrote out a certificate of deposit for $2,500, to order of appellee, reciting that same bore interest at four per cent, if left for four months. The assistant cashier stated that appellee saw him write out such certificate of deposit, which he placed in the vault with the receipt.

Appellee denies any knowledge of such certificate of deposit, or that anything was said concerning it. Neither certificate of deposit was ever delivered to him, and the latter one, together with the receipt, was in the files of the bank at the date it closed.

Appellee testified that on March 28, 1931, he asked Mr. Taylor why he had not been furnished with the bonds; that the latter said the bank had borrowed $10,000 from a bank in St. Louis, and was required to deposit three times the amount in collateral, which took all its bonds, but that when the debt was paid, it would take care of appellee as to the bonds. Taylor admits discussing the matter of the loan with appellee, but denies any promise to deliver bonds when its St. Louis loan should be paid.

W. H. Kimmel stated that he solicited appellee to remove his money from a bank in Marion, and deposit it in the Citizens State Bank of Creal Springs; that the latter expressed a willingness to do so if he could be accorded the same arrangement he had with the Marion bank, and which was that he should be given a receipt showing the moneys were left for the purpose of purchasing Liberty bonds, and which receipt he could exhibit to the assessor, so he would not have to pay taxes on the money. This was denied by appellee.

It is thus seen that if the testimony of appellee is true, the funds were left as deposit for a specific purpose; that is, for the purchase of government bonds; in which case title would remain in appellee, and not pass to the bank, which would become a trustee of the moneys for the benefit of appellee, and which, upon failure of the bank, could be recovered as a trust or special deposit; People v. Bates, 351 Ill. 439; Wood-house v. Crandall, 197 Ill. 104; 7 Corpus Juris, 631, sec. 307; in which event the issuance of the certificate of deposit, without the approval or knowledge of appellee, could not change the character of the deposit, nor divest it of the trust. People v. Bates, supra.

One of appellant’s defenses was that the transaction was one of general deposit, and that appellee procured the issuance of the receipts as a subterfuge to enable him to appear to the assessor as having ordered Liberty Loan bonds with the money, and thus avoid its assessment and taxation. If such were the case, then of course there was no special deposit, and no preferred claim.

In support of such contention, appellant offered the testimony of the witness Kimmel, previously quoted, and while appellee was on the stand in rebuttal, to deny such statements, he further testified that previous to his dealing with the Creal Springs Bank, he had the same money in the State Bank of Marion. Appellant sought to cross-examine him as to the manner in which he had his money in the latter bank. Appellee interposed the objection that it was immaterial, which the court sustained. The ruling is assigned as error.

It will be observed that the only ground of objection stated is that the matter inquired for was immaterial. The objection, being specific, and based upon a single reason, is a waiver of all other points of objection which might have been made. Village of Prairie Du Rocher v. Schoening-Koenigsmark Milling Co., 248 Ill. 57; Terre Haute & Indianapolis R. Co. v. Voelker, 129 Ill. 540.

We think the particular objection, here made, was not tenable, and that same should have been overruled. Whether appellee’s money was deposited in the Marion State Bank, under the same or similar circumstances that it was left with the bank at Creal Springs, was a very material matter. If the same arrangement was there pursued as at the latter bank, it would bear upon the question of whether the deposit was general or special, and whether the receipt, reciting that the funds were left to purchase U. S. Bonds, was a subterfuge, as contended by appellant. If the examination had disclosed that the deposits in the two banks were under the same arrangement, it would have been corroborative of the testimony of the witness Kimmel, and as such, testimony in favor of appellant.

The fact that other exceptions might have been taken to the question cannot avail appellee. Having elected to object specifically that it was immaterial, he waived all other grounds which he might have urged against its admission. The question was valid as against the objection made, and should have been allowed; and inasmuch as the effect of its refusal was to deprive appellant of a material element of. its defense, the order must be reversed, and the cause submitted for a further hearing.

As the cause will be remanded, we deem it proper to comment upon the fact that there is no proof in this record, of any money on hand, belonging to the Creal Springs Bank at the date of its closing, or on any day between such time and the day when appellee left his money with the bank. The proof shows that the moneys were mixed with the general moneys of the bank; hence, if they were left in trust, they could only be paid out of the fund in which they were identified as having been placed; and if such fund, into which they were traced, had been disposed of, no charge could be made against the general assets of the bank. Wood-house v. Crandall, supra, at page 116.

The authorities hold that the priority, in case of a trust fund so held by an insolvent bank, is restricted to the smallest amount of money on hand between the commingling of the trust fund with the general fund, and the closing of the bank. People v. Auburn State Bank, 215 Ill. App. 133, 140, 141; People v. State Bank of Iuka, 229 Ill. App. 4, 13; Macy v. Roedenbeck, 227 Fed. 346, L. R. A. 1916 C 12.

Here, there is no proof as to the amount of the general funds of the bank, with which appellee’s moneys were mixed, between the time of deposit and the bank’s closing; hence, even if the money which he left was a trust fund, it could not be known whether such general fund, existing after the funds were mixed, was sufficient to satisfy appellee’s claim, either wholly or in part.

While this question was not raised, we consider it proper to make mention of the fact, so that proper proof, relative thereto, may be made upon the rehearing of the cause.

The order is reversed, and the cause is remanded for a further- hearing, in accord with the views-herein expressed.'

Reversed and remanded.