text:
    The People of the State of Illinois ex rel. John Moroney, Appellee, v. James P. Allman, Appellant.
    Gen. No. 37,106.
    Opinion filed January 15, 1934.
    William H. Sexton, Corporation Counsel, for appellant; Otto F. Weiner and William V. Daly, Assistant Corporation Counsel, of counsel.
    Johntry & Fitzgerald, for appellee; John H. Johntry, John O’C. Fitzgerald and George F. Ort, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

On May 3, 1933, Moroney filed a petition in the superior court of Cook county, praying a rule on defendant commissioner of police of the City of Chicago, to show cause why he should not he punished for contempt for disregard of an order of court previously entered in an action in mandamus. The action in mandamus was brought by Moroney to compel the officials of the city to issue a renewal license for a place of amusement conducted by him. The judgment was in his favor and defendants appealed from the judgment entered. The record was filed in this court May 1, 1933. The appeal is now pending in the Third Division of this court — People ex rel. Moroney v. Allman [275 Ill. App. — (Abst.)]. The judgment of the superior court in that proceeding directed not only that a renewal license should issue forthwith but also by way of injunction directed “that the respondents refrain from molesting the petitioner in and about his management and conduct of said business of public place of amusement.”

For alleged disregard of this order a rule to show cause was entered against respondent upon petition of Moroney filed May 3rd. The court heard the evidence without formal answer (the interested parties agreeing and the court consenting that respondent should have the full advantage and benefit of any and all defenses without the formality of pleading). The court found that respondent had disregarded and disobeyed the order by causing the arrest of Moroney for conducting his place without a license, and by causing his subordinate officers to surround the premises and refuse admittance to patrons and other persons.

The court found respondent guilty and imposed a fine of $50, and from that judgment this appeal has been perfected by respondent.

Respondent contends that the order. must be reversed on the authority of Clingen v. Harrison, 195 Ill. App. 301. In that case the circuit court awarded a writ of mandamus against the general superintendent of police to issue a permit for the exhibition of a motion picture. An injunctional order was included in the judgment as follows:

“And to give full effect and force to the process and mandamus of this court, you and your agents, servants and employees and agents, servants and employees of the City of Chicago and the successor in office to you, are hereby restrained and commanded to refrain from interference in the exhibition of the films aforesaid until the further order of this court.” The respondent appealed. This court in its opinion pointed out the fundamental distinction between the writ of mandamus and the writ of injunction, stating that the remedy by injunction was solely equitable, while an action for mandamus was distinctively an action at law, and citing Fletcher v. Tuttle, 151 Ill. 41; People v. Crabb, 156 Ill. 155, and 13 Ency. of Pl. & Pr. 491, reversed the judgment, holding that the law court was without jurisdiction to enter the injunction order.

Relator contends that this case has been overruled by the later case of People v. David, 328 Ill. 230. In that case one Bohm sued in mandamus to compel the city officials to recognize his position as first assistant superintendent of streets. The city had passed an ordinance abolishing that position and creating the supposed office of deputy superintendent of streets with the same duties as those performed by the assistant superintendent. Bohm was a civil service employee. The cause was heard upon' the petition and answer. The court found that the two offices were in fact and in law the same; that Bohm, petitioner, was the lawful incumbent and entitled to the writ of mandamus. It was ordered that the writ issue. The city and its officials prayed an appeal, which was allowed with the following condition: “Provided, however, the petitioner, pending the determination of such appeal, is to hold the position of first assistant superintendent of streets of the City of Chicago until the further order of the said Appellate Court.” After the appeal had been perfected the city filed a petition in the Appellate Court praying that the trial judge might be compelled to expunge the proviso from the order of appeal. A demurrer to this petition was filed, and the city made a motion that the demurrer be overruled and a rule of respondeat ouster issue. The motion was denied, the demurrer overruled and a mandamus issued from the Appellate Court for the reason that the trial judge was without authority to insert in the order awarding the writ the provision above quoted. The trial judge sued out a writ of error in the Supreme Court. The Supreme Court reached the same conclusion as the Appellate Court, and held that the trial judge was without authority to impose any conditions or limitations on an order permitting an appeal except such as were prescribed by law and the statute; that the appeal operated as a supersedeas; that the appeal did not undo what was already done; that “the trial court retains jurisdiction to preserve the existing status.” The order of the Appellate Court was declared unnecessary and reversed for that reason.

In this case Moroney testified positively that when his original petition for mandamus was filed and continuously to the time judgment was entered, the tavern conducted by him was closed. The preservation of the status therefore required that it should remain closed, and the trial court was without right or power to punish respondent for acts tending to preserve the status pending the appeal. Moroney v. Allman, 271 Ill. App. 336.

The purpose of the petition for mandamus was to establish the rig-ht of petitioner to reopen his place of business. He obtained such an order, but the appeal suspended the enforcement of it. Thus, the status quo was maintained. No injunction was necessary or proper for that purpose. As respondent suggests, from that standpoint the injunctional order was wholly superfluous, while so far as the order assumed to authorize petitioner to reopen and operate without a license, its effect would he to destroy rather than to preserve the status. The bill in the injunction case was based on the theory that the place was continuously kept open and the allegations were on the hearing admitted to be true.

The law court was without jurisdiction to enter such an order, and the judgment for contempt based thereon therefore cannot stand. For the reasons indicated it is reversed.

Reversed.

O’Connor and McSurely, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice MoSurely

license: Public Domain

text:
    Royal Drug Company, Inc., Appellant, v. Jacob Levin, Appellee.
    Gen. No. 37,020.

      Opinion filed January 15, 1934.
    Herman S. Waldstein, for appellant; A. N. Lustig, of counsel.
    Benjamin S. Leiser, for appellee.
   Mr. Justice MoSurely

delivered the opinion of the court.

This is an appeal by plaintiff from an adverse judgment in a suit upon a promissory note tried by the court; the note was made by defendant to the order of the plaintiff with power of attorney to confess judgment, which was entered June 27, 1932, by confession, in the sum of $1,757.50; thereafter, on motion of defendant, leave was given to defend; the affidavit supporting his motion was ordered to stand as the affidavit of merits.

Defendant alleges that he was not indebted to plaintiff at the time he executed and delivered the note in question, and that it was executed and delivered purely for accommodation. When the case was called for trial defendant moved to file an amended affidavit of merits, which was allowed; this alleged the same defense, but added “that the entire transaction by the plaintiff was unauthorized by its corporate charter and null and void.” The trial court held with this defense of ultra vires, vacated the judgment and entered a finding and judgment against the plaintiff.

In this court the defendant in his brief rests his case solely upon the plaintiff’s charter and the decisions in Calumet & Chicago Canal & Dock Co. v. Conkling, 273 Ill. 318, and Mercantile Trust Co. v. Kastor, 273 Ill. 332, which cases held that in general the powers of a corporation are limited by its charter, and where it enters into a contract ultra vires, such contract is void.

Plaintiff’s charter authorized it “To manufacture, buy, sell and deal in drugs, chemicals, medicines and druggists’ supplies, of every kind and description, drug sundries, sanitary appliances, fancy goods and other articles and things used in and pertaining to the druggists’ supply business, and to do all acts and things reasonable and necessary for the conduct of such business or in connection therewith.”

May 14, 1931, Mr. Samuel Halper asked his brother-in-law, one of the officers of the plaintiff corporation, for a loan of $1,500, offering to give to plaintiff his note for this amount; he was told that plaintiff could not use his note; Halper was associated with the defendant in the theatrical business and told plaintiff that he could get the defendant to sign the note and was told that plaintiff would let him have the money on defendant’s note; this was communicated to the defendant who thereupon signed the note in question, wherein he agreed to pay to the order of the Boyal Drug Company, 90 days after May 14, 1931, $1,500 with interest; defendant gave the note to Halper who delivered it to plaintiff and received from it $1,500. The note has not been paid.

The two cases cited by defendant have been the subject of much discussion. The opinions were delivered by a divided court. In the Calumet case the opinion recognizes that a loan made by a corporation may be valid although not expressly permitted by its charter, and that where the contract is within the implied scope of its charter a party who has had the benefit of it cannot set up as a defense that the power was improperly exercised. In the Mercantile Trust Co. case the main issue involved was the right of the plaintiff corporation to engage in the business of making loans. The transaction now under consideration, was an isolated one and does not involve the question of loaning money as a business.

The defense of ultra vires is looked upon by many courts with disfavor, and in recent cases especially the rule has been frequently announced that the plea of ultra vires should not be allowed to prevail, whether interposed for or against a corporation, when it will not advance justice, but, on the contrary, will accomplish a legal wrong. R. C. L., vol. 7, page 676. See also Fletcher Cyc. Corp. (Perm. Ed.), vol. 3, sec. 1549. The decisions in this State have held, generally, to the same effect. Darst v. Gale, 83 Ill. 136; Brown v. Scottish-American Mortgage Co., 110 Ill. 235; Kadish v. Garden City Equitable Loan & Bldg. Ass’n, 151 Ill. 531; Eckman v. Chicago, B. & Q. R. Co., 169 Ill. 312; American Credit Indemnity Co. v. Yamer, 170 Ill. App. 350. In Independent Order of Svithiod v. Ring Lodge No. 8, 261 Ill. App. 289, this court in an extended opinion cited most of the cases in this State dealing with the subject of a contract ultra vires the power of a corporation. We there held that the loan of money by the corporation was an appropriate exercise of power for the attainment of the object for which the corporation was incorporated. In the recent case of Benson Lumber Co. v. Thornton, 185 Minn. 230, this subject was under discussion. In that case it was said:

“Neither plaintiff’s charter nor the law under which it is incorporated contains any provision prohibiting plaintiff from loaning its money. There is not much difference between loaning money and selling goods on credit, a power undoubtedly possessed by plaintiff. In either case, credit is extended. If plaintiff had money on hand, might it not deposit such money in a bank on time certificates so as to receive interest thereon, a loan of money to the bank? We are not prepared to say that a loan of money by plaintiff to an individual or a bank is clearly ultra vires.

“Contracts should not be held ultra vires unless clearly shown so to be.

“The present tendency is to restrict the defense of ultra vires in actions between private parties as far as possible, if not to deny it altogether, except in the case of contracts wholly executory. The general rule is that such contracts are unenforceable when wholly executory, but when executed on one side they are enforceable because the public policy of justice overbalances the public policy of keeping the corporation within the limits of its charter.

“An ultra vires contract fully performed on one side is enforceable either in favor of or against a corporation unless expressly prohibited by statute. In other words, if a corporation receives from an individual a substantial benefit under such a contract, it cannot repudiate the contract without restoring the benefit received. On the other hand, if an individual receives money or property from a corporation under such a contract, he or those claiming under him cannot repudiate the contract without restoring what was received. While this rule is generally said to be based on estoppel, it is equally sustained by the equity rule that one person or party shall not be permitted unjustly' to enrich himself at the expense of another. 2 Morawetz, Private Corp. (2nd Ed.), see. 689.”

We have quoted rather fully as expressing our thought as to the case before us. As indicating the modern trend with reference to this question, it should be noted that at the last session of the General Assembly of this State an act was passed, effective July 1, 1933, which in effect wipes out the defense of ultra vires in such a case as is now before us. Ch. 32, ¶ 8, Cahill’s Illinois Statutes (1933).

Plaintiff’s charter authorized it to do “all acts and things reasonable and necessary for the conduct of such business or in connection therewith.” The burden of proving that the loan for which defendant’s note was given was wholly outside of these authorized acts was upon the defendant. Chicago Pneumatic Tool Co. v. Johns Mfg. Co., 101 Ill. App. 349; Talmadge v. Clewiston Iron Co., 252 Ill. App. 508; Fletcher’s Cyc. Corp., vol. 2, sec. 811. Halper and defendant may have had business relations with plaintiff which would warrant the loan. When a question arises as to whether a particular act or.contract is in excess of the powers of a corporation, and there might be circumstances under which it would be authorized, it will be presumed .to have been authorized unless the contrary appears, the burden of showing the contrary being upon the one who sets up the want of power. Defendant rested his case, upon the language of plaintiff’s charter. We must therefore conclude that the defense of ultra vires has failed of proof. '

The judgment of the trial court will be reversed and the order vacating the judgment will be set aside, and the judgment entered against defendant on June 27, 1932, for $1,757.50 is confirmed.

Judgment confirmed.

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


author: Mr. Justice McSurely

text:
    Etta Wolf et al., Executors of the Last Will and Testament of Henry Wolf, Deceased, Appellants, v. Rudolph Fischman et al., Appellees.
    Gen. No. 37,097.
    Opinion filed January 15, 1934.
    Sidney J. Wolf, for appellants.
    No appearance for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.

Complainants appeal from an order requiring the receiver in a foreclosure proceeding to pay taxes after sale and the entry of a deficiency decree in favor of complainants. No one appears in this court to defend the order.

Complainants filed a bill to foreclose a junior mortgage executed by Rudolph Fischman, one of the defendants; a receiver was appointed; subsequently an order was entered extending the receivership for the benefit of the first mortgage; May 23, 1933, a decree of sale was entered and on June 20th the master’s decree of sale was confirmed and a- deficiency decree of $12,563.13 was entered in favor of complainants.

June 22nd complainants filed a verified petition representing that the receiver had on hand the sum of $4,292.51, and asking that he be ordered to pay the complainants this amount to apply on account of the deficiency. The owners of the equity answered the petition, asked that its prayer be denied and that the receiver be required to pay the funds in his hands on account of taxes. After argument the court ordered the receiver to pay $1,000 on account of the 1929 taxes and $1,000 on account of the 1930 taxes, and that the balance in Ms hands be paid to complainants in reduction of the deficiency decree. This appeal is from the order requiring the receiver to pay $2,000 on account of taxes.

It has been repeatedly decided that a receiver cannot pay taxes after sale and during the period of redemption. It was specifically so held in Bothman v. Lindstrom, 221 Ill. App. 262. In the recent case of Verst v. ForemamState Trust & Savings Bank, 270 Ill. App. 484, we said that it was the rule in this State that taxes on property foreclosed cannot be paid by the receiver after sale and that the reason for this is that the owner of the equity of redemption is not chargeable with payments of taxes for the purchaser, except in case of redemption as provided by statute. See also Powell v. Voight, 348 Ill. 605; Davis v. Dale, 150 Ill. 239; Wright v. Matters, 220 Ill. App. 131; Nixon v. Unity Co., 176 Ill. App. 12; Stevens v. Hadfield, 90 Ill. App. 405; Reeve Illinois Law of Mortgages and Foreclosures, vol. 2, page 647, sec. 564.

The order requiring the receiver to pay taxes was improvidently entered and it is reversed, and the cause is remanded with directions to pay the amount in the receiver’s hands to the complainants in reduction of the deficiency decree.

Reversed, and remanded.

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


text:
    Abraham Oswianza, Appellee, v. Wengler & Mandell, Inc., Appellant.
    Gen. No. 37,163.
    Opinion filed January 15, 1934.
    Rehearing denied and supplemental opinion filed January 30, 1934.
    Winston, Strawn & Shaw, for appellant; Thomas I. Underwood and Douglas C. Moir, of counsel.
    William Feldman, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit on four bonds secured by a trust deed, and upon trial by court had judgment for $2,090, from which defendant appeals.

The bonds contained language referring to the trust deed and the question presented is whether this language, in connection with certain limitations expressed in the trust deed, bars plaintiff from pursuing an action at law on the bonds. This language in the bonds is as follows:

“Said trust deed and this bond, as well as all the other bonds aforesaid, are to be taken and considered together as parts of one and the same contract.

“Both principal and interest bear interest after maturity thereof at the rate of seven per cent (7%) per annum, and are payable in the manner described in the Trust Deed. ....

“For a description of the mortgaged property and the nature and extent of the security, reference is made to said trust deed, to all of the provisions of which this bond and each coupon hereto attached are subject, with the same effect as if said trust deed were herein fully.set forth.”

The language of the trust deed said to bar an action at law by the holder of the bonds is as follows:

“Every holder of any of the bonds hereby secured (including pledgees) accepts the same subject to the express understanding and agreement that every right of action, whether at law or in equity, upon or under this Indenture, is vested exclusively in the Trustee, and under no circumstances shall the holder of any bond or coupon, or any number of combination of such holders, have any right to institute any action at law upon any bond or bonds or any coupon or coupons, or otherwise, or any suit or proceeding in equity or otherwise, except in case of refusal on the part of the Trustee to perform any duty imposed upon it by this Indenture after request in writing by the holder or holders of at least twenty-five per cent (25%) in amount of said bonds as aforesaid, and such refusal of the Trustee shall continue for sixty (60) days after such demand as aforesaid. No action at law or in equity shall be brought by, or on behalf of, the holder or holders of any bonds or coupons, whether or not the same be past due, except by the Trustee or by the requisite number of bondholders acting in concert under the provisions of this Section for the benefit of all bondholders. In the event that pursuant to the terms hereof holders of at least twenty-five per cent (25%) or more in amount of said bonds shall have joined in exercising the right to act in lieu of the Trustee, then none of the remaining bondholders shall have any right to -institute any legal proceedings of the same or a similar character for the same default of the Mortgagor.”

While some earlier cases hold that under similar circumstances the holder of the bond has deprived himself of any right of action at law thereon (Boley v. Lake Street Elevated R. Co., 64 Ill. App. 305; Belleville Sav. Bank v. Southern Coal & Mining Co., 173 Ill. App. 250), the later cases hold otherwise. In the recent case of Sturgis Nat. Bank v. Harris Trust & Savings Bank, 351 Ill. 465, the court quoted with approval from Thorp v. Mindeman, 123 Wis. 149: “While the two instruments will be construed together where-ever the question as to the nature of the actual transaction becomes material, this does not mean that the mortgage becomes incorporated into the note. . . . The holder of the note may discard the mortgage entirely and sue and recover on his note, and the fact that a mortgage had been given with the note, containing all manner of agreements relating simply to the preservation of the security, would cut no figure.” In this case the Supreme Court affirmed the Appellate Court, 266 Ill. App. 199, where we said: “Such bonds should be construed most favorably to the purchasing public. Words and statements contained therein should not be twisted or distorted from their obvious meaning, especially when to do so would result in loss to many innocent purchasers and in serious confusion in the commercial world.” Other cases to the same effect are Pflueger v. Broadway Trust & Savings Bank, 351 Ill. 170; Romberg v. Interstate Independent Telephone & Telegraph Co., 200 Ill. App. 509; Schatzkis v. Rosenwald & Weil, 267 Ill. App. 169; Balch v. English, 261 Ill. App. 29; Gauss v. Simon, 268 Ill. App. 196.

We do not concede that a limitation on the right to sue is not inconsistent with the negotiability of a promissory note. But if this were true, such words of limitation are absent from the instant note. The words claimed to be a limitation on the right to sue are those referring to the trust deed, and, as was said in Enoch v. Brandon, 249 N. Y. 263, such words mean that only by turning to the mortgage would the holder discover the precise nature of the lien. “He would see that the bonds to be issued were not only upon the credit of the corporation, but upon the faith of some collateral mortgage. To it he must go if further knowledge as to this security is desired.”

Our conclusion is controlled by the decisions in the above cited cases, and the judgment is therefore affirmed.

Affirmed.

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

Supplemental Opinion Upon Petition for Rehearing.

The attorneys for the defendant have filed a petition earnestly requesting a rehearing, which prompts some further observations.

What is the effect on negotiability of a provision in the instrument limiting the right of the holder to sue in his own name? In Pflueger v. Broadway Trust & Savings Bank, 265 Ill. App. 569-581, is presented the view that such a provision is so contrary and repugnant to the essence of the instrument that it is void, citing a large number of supporting cases.

There are also a considerable number of cases which tend to hold that any provision which limits the right of the holder to sue in his own name destroys negotiability. We recognize that Paepcke v. Paine, 253 Mich. 636, and Pflueger v. Broadway Trust & Savings Bank, 351 Ill. 170, apparently hold that such a provision cannot affect the negotiability of the instrument since, as stated in the latter case, such a provision relates only to the remedy after default and when the instruments have ceased in the full commercial sense to be negotiable. We suggest that, as it is obvious no suit could be brought by a holder before maturity, and, if the so-called “No-Action Clause” is operative only after default, the holder can never bring a suit at law, although the Negotiable Instruments Act provides, as an incident of negotiability, that “The holder of a negotiable instrument may sue thereon in his own name.” Ch. 98, par. 71, sec. 51, Illinois Statutes (Cahill) 1933.

There is a very impressive body of authority indicating that the right of a holder to sue is an essential of negotiability. In Shaw v. Railroad Co., 101 U. S. 557, the court, answering" the question as to what is negotiability, says: “It is a mercantile business transaction, and the capability of being thus transferred, so as to give to the indorsee a right to sue on the contract in his own name, is what constitutes negotiability.” To the same effect are Moody v. Morris-Roberts Co., 38 Idaho 414; Cella v. Brown, 144 Fed. 742, and cases cited in 8 C. J. 51, sec. 51, and in 3 R. C. L., 837, sec. 11. This precise question was considered in St. Louis-Carterville Coal Co. v. Southern Coal & Mining Co., 194 Mo. App. 598, where the court, holding the coupon notes non-negotiable, said:

“The provisions of the bond calling into it those of the mortgage in connection therewith limits the right to collect the amount stipulated on the face of the coupon at the time therein stated in accordance with the conditions prescribed in the mortgage. This being true, it is clear all of the elements pertaining to negotiable instruments purchased in good faith before maturity, are not present. Obviously such a coupon is not to be treated in the law of negotiable instruments as a ‘courier without luggage.’ ”

In 29 Columbia Law Review, 365, it is said:

“. . . A more prevalent view is to consider that the reference makes the mortgage provisions a part of the bond, but if the mortgage . . . requires that no bondholder can sue on the bond until the trustee has had a reasonable time to sue on behalf of all‘the bondholders, or requires that a majority of bondholders must join in a suit for default in payment of the bond, the courts declare the bond to be non-negotiable. ...” It has been the rule from ancient times that a holder of a negotiable instrument could sue thereon in his own name. See Nutford v. Wolcot, 1 Lord Raymond, 574, decided in 1699.

If we assume the instant bonds are negotiable, and both parties to this suit say that they are, we must, if possible, construe the words in the bonds so they will be consistent with the provision of the statute above quoted. It has been the custom for many years for negotiable instruments of this kind to refer to the security. One who loaned money or purchased such paper did so depending upon the reliability of the obligor and also upon the security. A purchaser would not surmise that words referring to the trust deed in any way limited his statutory right to sue -in his own name. Latterly there have been strenuous efforts to have such words as “subject to the provisions” of the trust deed construed to mean that the provisions of the trust deed controlled and limited the right of the holder to sue. Sturgis Nat. Bank v. Harris Trust & Savings Bank, 351 Ill. 465, held against this. The words in the bonds in the instant case are, that principal and interest “are payable in the manner described in the trust deed.” But these words are no more definite than the questioned words in the Sturgis case.

Considered technically, the provision in the present trust deed does not relate to the “manner” in which the bonds “are payable,” but does attempt to control the. procedure upon default in payment.

It should not be forgotten that a secured negotiable instrument gives a negotiable instrument, plus security ; reference to the security is reference to the added rights. We held that the promise to pay was unconditional and that the provision in question refers to the security and the manner of proceeding against this security.

We see no reason to change our former opinion, and the petition for rehearing is therefore denied.

Petition for rehearing denied.

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


author: Mr. Justice O’Connor

text:
    Helena Paluszewski, Defendant in Error, v. Ignacy Tomczak and Katarzyna Tomczak, Plaintiffs in Error.
    Gen. No. 36,941.

      Opinion filed January 15, 1934.
    Rubenstein & Rubenstein, for plaintiffs in error; Walter Monarch, of counsel.
    Thomas P. Octigan, for defendant in err'or; Peter D. Caloger, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal the defendants seek to reverse an order entered by the municipal court of Chicago, denying their motion to vacate a judgment entered by confession.

Counsel for both parties have violated Rule 19 of this court by referring to the parties as “plaintiff in error” and “defendant in error,” which only tends to confuse. Rule 19'.provides that “the parties shall be designated plaintiff . . . and defendant as in the trial court.” This should be done without any explanation or apology.

February 21,1933, plaintiff caused judgment by confession to be entered against the defendants on a promissory note made by the defendant and payable to the order of “Stanislaw or Helena Paluszewski.” Afterward, ón March 17, defendants filed their petition praying that the judgment be vacated and set aside, and on June 2nd following filed their supplemental petition-. The motion on defendants’ petition and supplemental petition was continued from time to time; on June 20th the matter came on for hearing and on motion an order was entered allowing plaintiff to file her petition, where among other things plaintiff averred that the judgment entered ■ in her favor was too large and she offered to remit the excess. The court then heard the matter, denied defendants’ motion to vacate the judgment entered, reduced the judgment $179.60, and the judgment was confirmed for the balance.

In their petition defendants set up the entry of the judgment, that it was confessed on an “alleged promissory note,” describing the note in question, and averred that the “alleged promissory note is not in fact and in law a promissory note, ’ ’ and that the judgment was void. The contention was, as disclosed by the petition, that the payees of the note were Stanislaw or Helena Paluszewski. In their supplemental petition the defendants set up that defendant Ignacy Tomczak was an employee of the Peoples Q-as Light & Coke Company, and by reason of this fact was entitled to purchase common stock of the Insull Utility Investment Company at a discount; that plaintiff, his cousin, requested defendants to purchase $7,000 of the Insull stock, plaintiff to have l/7th interest and Ignacy Tomczak 6/7ths, the “profits and losses to be shared and borne proportionately to their respective interests”; that defendants purchased the $7,000 worth of stock accordingly; that the stock was purchased in the name of defendant Ignacy Tomczak, because as an employee of the gas company he could buy it at a discount; that he holds the stock for plaintiff and the defendants, whose interests in it are, as above stated, 1/7th and 6/7ths respectively. The supplemental petition further set up that defendants executed and gave to plaintiff the “instrument in writing purporting to be a note for One Thousand ($1,000.00) Dollars only as evidence of the interest which the plaintiff had in said stock certificates,” being the note on which the judgment was confessed; that it was specifically and orally agreed between the parties “that said alleged note was to be retained by plaintiff and was not to be negotiated or used ... as a note or negotiable instrument, but was to be held by the plaintiff solely to evidence the faithful performance of Ignacy Tomczak, one of the defendants ... as holder of said Common Stock for the mutual interest of the plaintiff and defendant, Ignacy Tomczak, in accordance with their respective interests”; that thereafter plaintiff from time to time “requested certain advancements from defendants,” which advancements defendant Ignacy Tomczak made in the sum of $475; that such advance is more than the value of the l/7th interest of plaintiff in the stock which defendants hold for plaintiff; that plaintiff and defendant Ignacy Tomczak “are copartners -of said stock so held' by the defendant Ignacy Tomczak, in the ratio of one-seventh (1/7) and six-sevenths (6/7) . . . ; that said note held by plaintiff is now of no force and effect for the reasons aforementioned, and that these defendants stand ready and willing to assign to the plaintiff her one-seventh (1/7) interest in said stock conditioned upon the return to the defendants of their note upon which judgment was wrongfully confessed.”

The defendants contend that under the law where a promissory note is made payable to the order of two or more persons in the alternative one of the payees cannot maintain an action on the note in his own name, and since the note in question is made payable to Stanislaw or Helena Paluszewski, plaintiff, Helena Paluszewski, cannot maintain an action on the note. In support of this the cases of Mussel-man v. Oakes, 19 Ill. 81, and Carr v. Bauer, 61 Ill. App. 504, are cited. The Musselman case sustains this contention and the holding in that case was followed by the Appellate Court in the Carr case. Both of these cases, however,' were decided "long before the passage of our Negotiable Instruments Law, in 1907. That Act provides for the form of negotiable instruments, and as a part of the definition in section 8 provides that a negotiable instrument “may be drawn payable to, or to the order of: . . . One or more of several payees. ’ ’

And it is the law that “A.bill (or note) may be made payable to two or more payees jointly, or it may be made payable in the alternative to one of two, or one or some of the séveral payees.” And “Where a note is made payable ‘to the order of A or B,’ the endorsement of either is sufficient to pass the title.” And “If the endorsement of either payee is sufficient to pass the title, there seems to be no reason why either payee may not bring suit on the note.” Brannan’s Negotiable Instrument Law (4th ed.), pp. 75, 76 and 77.

In the instant case, under the law above quoted and which is sustained by the authorities, we hold that plaintiff, being one of the payees of the note, may maintain an action on it.

The defendants further contend that the warrant of attorney attached to the note did not authorize the entry of a judgment in favor of one of two alternative payees; that the power to confess judgment must be strictly pursued, and. that the warrant of attorney attached to the note in question authorizes confession of judgment “ ‘In favor of the legal holder of this note.’ But the note being payable to Stanislaw or Helena Paluszewski, it is uncertain and indefinite who is the legal owner of said note.” What we have above said in disposing of the first point, we think is sufficient. There is no merit in this contention.

The defendants further contend that the note in suit was delivered conditionally; that there was a contemporaneous and oral agreement as set up in defendants’ supplemental petition, and therefore the note did not take effect “in praesenti as a promissory note.” Defendants’ counsel then cite section 16 of the Negotiable Instruments Law, Cahill’s St. ch. 98, ¶ 36, which provides that a negotiable instrument is incomplete until the delivery of the instrument; that as between the immediate parties the fact that the instrument was conditionally delivered may be shown by parol, and that the court erred “in denying leave to (defendants) to make proof of the allegations” in their supplemental petition “that the note in question was delivered upon the condition that Ignacy Tomezak would faithfully perform his verbal agreement to purchase and hold” the stock mentioned.

An examination of the abstract and of the record fails to show that defendants offered any such evidence. In fact no evidence was offered, but it appears that the case was disposed of on the defendants’petition and supplemental petition. Moreover, it is the law that, as between the immediate parties to a promissory note parol evidence may be offered to show that the note was delivered conditionally, that is, that it was not to take effect as a promissory note except upon certain conditions subsequent. But it seems that the defendants, by their supplemental petition, did not seek to show that the note was delivered conditionally but that it was not to be considered as a note at all. If this is defendants’ position, it cannot be sustained. Weinstein v. Sprintz, 234 Ill. App. 492. One may not make and deliver a promissory note, regular in form, and afterwards contend that it'was not to be considered as a promissory note,- — -which seems to be what the defendants sought to do in the instant case, although we are uncertain on this point because the defendants’ supplemental petition, from which we have above quoted at considerable length, is unintelligible. We are unable to say with any degree of certainty what,facts were sought to be alleged in the supplemental petition. On a motion to open up or vacate a judgment, the affidavits in support of the motion are construed against the defendant; and from what we have said, we think we would not be warranted under the law in overruling the order and judgment entered by the trial court denying defendants’ motion. However, the judgment entered in this case was for $1,280.80. Afterward plaintiff filed a petition setting up that certain payments had been made by the defendants on the note and that the judgment entered was for $179.60 more than was due. And it further appears from the verified petition filed by plaintiff that four days after the judgment was entered defendants paid $300 on account of the note. It therefore appears that the judgment is excessive to the extent of $479.60,- and for this reason the judgment of the municipal court of Chicago is reversed and judgment Entered in this court in favor of plaintiff and against the defendants for $801.20. Both parties will be required to pay their own costs incurred in this court.

Judgment reversed and judgment entered in this court.

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


text:
    Bertha Andres, Defendant in Error, v. Louis Chillow, Plaintiff in Error.
    Gen. No. 36,975.
    Opinion filed January 15, 1934.

      Roy S. Gaskill, for plaintiff in error.
    Rust, Creighton & Quan, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against the defendant to recover damages for personal injuries claimed to have been sustained by her as a result of being struck by an automobile, alleged to have been owned and driven by the defendant. At the time plaintiff instituted her suit she filed a demand for a jury trial and paid the $8 fee for the services of a jury, as provided by statute, sec. 33, ch. 53, Cahill’s Statutes, par. 47. When the case was called for trial an order was entered on motion of plaintiff and over defendant’s objection, that a trial of the cause by jury be waived. Defendant demanded that the case be submitted to a jury, which demand the court denied. The case was then heard and there was a finding and judgment in plaintiff’s favor for $1,400, and defendant appeals.

Defendant contends that the court was without authority to hear the case without a jury, and that is the sole question for decision. Sec. 33, ch. 53 of the statutes provides that “In counties of the third class the clerk of the court shall be entitled to receive, in addition to other fees allowed by law, the sum of eight dollars as a fee for the services of a jury. . . . Such fee shall be paid by the plaintiff, complainant or petitioner at the time of the commencement of such action or suit, ... or, if not so paid by the plaintiff, complainant, petitioner or appellant, shall be paid by the defendant, respondent or appellee at the time of entering his appearance. If such fee shall not be-paid by either party, no jury shall be called in the action, suit or proceeding, and the same shall he tried by the court without a jury.”

Section 5 of article 2 of the constitution of this State provides: “The right of trial by jury as’heretofore enjoyed, shall remain inviolate; but the trial of civil cases before justices of the peace by a jury of less than twelve men may be authorized by law.” And it has been held that this provision of the constitution for a jury trial shall be liberally construed in favor of the right. Morrison Hotel & Restaurant Co. v. Kirsner, 245 Ill. 431. And the same view has been taken in the trial of criminal cases. People v. Fisher, 340 Ill. 250; People v. Bruner, 343 Ill. 146; People v. Kelly, 347 Ill. 221; People v. Ryan, 259 Ill. App. 536. Under our constitution it has also been held that a litigant’s right- to trial by jury, as provided in the constitution, is not infringed by the requirement that a jury fee, fixed at a reasonable amount, be paid by one of the parties prior to calling the jury. Williams v. Gottschalk, 231 Ill. 175.

The question then arises as to the meaning of the provision of the statute above quoted requiring the payment of a jury fee as a prerequisite to the right of a jury trial. The statute plainly says that in counties of the third class the clerk of the court shall be entitled to receive $8 as a fee for the services of a jury; that such fee shall be paid by the plaintiff at the time he commences his action or suit; but that if such fee is not paid by the plaintiff it shall be paid by the defendant at the time of entering his appearance ; that if such fee is not paid no jury will be called, but the action shall be tried by the court without a jury. Cook county is a county of the third class. We think the statute is plain and unambiguous. In the instant case, plaintiff paid the jury fee when she commenced her action. No further fee was required to insure a jury trial, and the court erred in denying the defendant’s motion for a jury trial.

The judgment of the circuit court of Cook county is reversed and the cause remanded.

Reversed and, remanded.

Hatchett, P. J., and McSurely, J., concur.


text:
    The People of the State of Illinois ex rel. Harry Janosky, Appellee, v. Charles Novotny et al., Appellants.
    Gen. No. 37,032.
    Opinion filed January 15, 1934.
    Markham, Donovan & Sullivan and Leo Klein, for appellants; Charles E. Loy, of counsel.
    Thomas J. Courtney, State’s Attorney, and Willis Melville, for appellee; Paul W. Pretzel, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

A judgment of ouster was entered against the defendants in a quo warranto proceeding ousting them from certain positions they had been holding in the Village of Stickney under a claimed appointment by the village president, and they appeal.

It is conceded that there is but one question for decision, which is whether the positions involved should be filled by appointment by the president of the village board and approved by the trustees, or whether the appointments should be made by the board of trustees. It is also conceded that there are a number of Appellate Court decisions, all of which in principle hold that appointments, such as those involved, are legally made by the board of trustees and not by the village president. These cases are: Rowley v. People, 53 Ill. App. 298 (2nd District); McKean v. Gauthier, 132 Ill. App. 376 (2nd District); People v. Hitchcock, 148 Ill. App. 456 (1st District); People v. Paynter, 197 Ill. App. 78 (4th District); Lightfoot v. Village of Evergreen Park, 207 Ill. App. 411 (1st District); and Trout v. City of Herrin, 245 Ill. App. 346 (4th District).

But the defendants contend that these decisions are wrong and say that by a propér construction of the statute involved the power of appointment is in the president of the village and not in the board of trustees; and in support of this cite the case of McCormick v. People, 139 Ill. 499.

In 1872 the legislature passed the Cities and Villages Act, which provides for the incorporation of cities and villages; a detailed method is specified for the election and qualification of officers, defining the powers and duties of such officers, etc. The act consists of a number of articles. Article 11 pertains to the organization of villages, and in section 8 it is provided that “In each village organized under this act there shall be elected by the qualified electors therein six trustees, who shall hold their office until their successors are elected and qualified. . . . The trustees shall choose one of their own number president,” and that such village shall “possess all other powers as a corporation in this Act conferred upon cities not exceeding five thousand inhabitants, except as herein otherwise expressly provided. And wherever the words ‘city council’ or ‘mayor’ occur in this Act, the same shall be held to apply to the. trustees and president of such village, so far as the same may be applicable. ’ ’

Section 9 provides: “The president of the board of trustees shall perform the duties and exercise the powers conferred upon the mayor of a city and shall receive as compensation therefor a salary to be fixed by the board of trustees. . . . And the trustees shall perform the duties and exercise all the powers conferred upon aldermen in cities; and the president and board of trustees may exercise the same powers conferred upon the mayor and city council of cities, and pass ordinances in like manner. The president of the board of trustees may exercise the same veto powers, and with like effect, as the mayor of a city; and the board of trustees may pass ordinances over such veto in like manner as a city council. ”

By section 11 it is provided: “The president and board of trustees may appoint a clerk pro tempore, and whenever necessary to fill vacancies; and may also appoint a treasurer, one or more street commissioners, a village marshal, and such other officers as may be necessary to carry into effect the powers conferred upon villages, to prescribe their duties and fees, and require such officers to execute bonds as may be prescribed by ordinance.” This section was amended in 1905 by adding a provision that in villages of more than 35,000 population the president and board of trustees should have no power to appoint a treasurer of the village.

If the foregoing provisions of article 11 of the act were the only provisions, it is obvious that the power of appointment to offices in a village is clearly vested in the president and board of trustees and not in the president alone; and this seems to' be conceded by counsel for defendants; but they say that this was changed by the legislature in 1887 and the power of appointment to offices in villages was given to the president of the village; that in that year the legislature passed an act in two sections which provides, sec. 1: “That in addition to the trustees and officers required by law, a president of each and every village and incorporated town shall hereafter be elected one every two years by the voters of such village or town . . . and said president of any village or incorporated town shall hold his office for the term of two years and until his successor is elected and qualified.”

" The president of any village or incorporated town shall be president of the board of trustees thereof and shall preside at all meetings of said board, and shall have the same power and perform the same duties as are or may be given by law to the mayor in cities or that have heretofore been given to the president of the board of trustees in villages, but he shall not vote, except in case of a tie, when he shall give the casting vote.” (Cahill’s St. ch. 24, ¶ 1196, p. 649, 1933.)

Section 2: “All Acts and parts of Acts in conflict with the provisions of this Act are hereby repealed.” And it is argued as we understand it, that by the act of 1887 the powers and duties of the president of a village board are the same as those of the mayor of a city; that the mayor of a city fills by appointment the offices in the city subject to the approval of the city council.

We think this contention cannot be sustained. We think it camiot be said that the legislature, by the Act of 1887, intended to change the functions of the president of a village from those theretofore exercised by him and the board of trustees, to give to him alone the power of appointment and in reality to make him the mayor of the village in fact, if not in name. The Act of 1887 provides for the election of a president of the village board. Theretofore he was elected as a trustee of the village and selected as its president by the trustees elected. Section 8, article 11, of the Act of 1872, from which we have above quoted, provided inter alia, that when the words “city council” or “mayor” occurred in the Cities and Villages Act of 1872, such terms should be held to apply to the trustees and president of a village so far as they might be applicable. And section 9' of the same article, from which we have also quoted, provides that the president shall perform the duties and exercise the powers conferred upon the mayor of a city, and that the trustees shall perform the duties and exercise the powers conferred upon aldermen in cities. By section 11 of the same act, the president and board of trustees are given the power to fill vacancies and to appoint such officers as may be necessary to carry into effect the powers conferred upon villages. It must be kept in mind that article 11 is part of an act which consists of a number of articles, some of which relate to cities and to the powers of the mayor and city council; and when the legislature came to the question of villages in article 11, it did not go into every detail of the powers conferred upon the president and board of trustees, but referred to prior articles concerning the mayors of cities and city councils. And it is clear that the legislature did not intend to give the same powers and duties to the president of a village as those they gave by the same act to mayors and city councils.

The only specific power of appointment to office in a village is in section 11. The Act of 1887 does not refer to the power to fill offices at all, and we think it clear that if the legislature in 1887 intended to give such power to the president of a village it would have said so. By that act the legislature provided for the election of a president of -the village and that he be given the powers and duties of a mayor of a city, “or that have heretofore been given to the president of the board of trustees in villages.” But we think it was not the intention of the legislature to wipe out section 11 of the Act of 1872. This is the holding of all the cases decided by the Appellate Courts which we have above cited.

McCormick v. People, 139 Ill. 499, relied upon by defendants, was a proceeding in the nature of quo warranto charging McCormick with usurping the office of president of the board of trustees of the town of Normal, without warrant of law. McCormick claimed title through an election by the board of trustees. The court found that McCormick was usurping the office and entered judgment ousting him, and on appeal the judgment was affirmed. The town of Normal was incorporated by special act of legislature which provided that the legislative power of the town should be vested in a town council composed of five trustees to be elected annually, and that the trustees at their first meeting should elect one of their number president. The court then pointed out that prior to 1887 five trustees were elected and proceeded to organize; that in 1887 the general assembly passed the act from which we have above quoted, which provided that in addition to the five trustees the president of each village should be elected; that in 1890 there were regularly elected in the town five trustees and a president who duly qualified and performed the duties of his office during the period for which he was elected; that afterward the board of trustees voted that in giving notice of the next annual election, the notice of the election of a president should be omitted; that the election was held pursuant to notice and five trustees elected, but no president. Thereafter the board proceeded to organize and elected a president from one of its members. It was held that by the Act of 1887 the president of the village must be elected; that that act was in conflict with section 8 of the Act of 1872 which provided for the election as president by the five" trustees one of their number, and repealed that section by implication. We think there is nothing in the rule of construction there laid down by the Supreme Court that would warrant the holding that after 1887 the president of a village elected by the people of the village should thereafter become in reality a mayor of the village, except in name.

For the reasons stated in the several opinions of the Appellate Courts above cited, we think the judgment in the instant case is right, and it is affirmed.

Affirmed.

Hatchett, P. J., and HcSurelt, J., concur.


author: Mr. Presiding Justice Wolfe

text:
    The Town of Sublette, Appellee, v. The Town of Reynolds, Appellant.
    Gen. No. 8,693.

      Opinion filed January 19, 1934.
    Henry C. Warner, for appellant.
    Edward A. Jones, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

This is an appeal by the Town of Reynolds from a judgment in favor of the Town of Sublette in the amount of $398.25, together with costs of suit, for expenses incurred by the plaintiff in connection with the care of Walter McNinch, a pauper.

During the year of 1930 and until June, 1931, Walter McNinch and his three children lived with his mother-in-law on what is commonly called the Schinzer farm in Reynolds township in Lee county. He became afflicted with tuberculosis, and after due medical examination in June, 1931, was taken to the tuberculosis sanatorium at Ottawa, Illinois. He was taken there by his parents on the suggestion of the supervisor of Reynolds township. Walter McNinch’s parents at that time were residents of Sublette township.

In April, 1932, Walter McNinch was reported cured and was discharged from the Ottawa hospital at which time William Sandrock, the supervisor of Reynolds township, met him in Ottawa and took him to the home of McNinch’s parents in Sublette township. Subsequently Charles J. ICeubel, supervisor of Sublette township sent Walter McNinch to the Amboy hospital. In April, 1932, notice was served on the clerk of Reynolds township that the said Walter McNinch had become chargeable as a pauper in Sublette township and demanded his removal by Reynolds township; that Sublette township would look to Reynolds township for a reimbursement of all expenditures by the former in connection with the care of said Walter McNinch.

Upon denial of any liability of the Town of Reynolds, suit was started before a justice of the peace by the Town of Sublette against the Town of Reynolds and a judgment was entered in favor of the Town of Sublette in the amount of $120 and costs, for the care and support of said Walter McNinch, a pauper. The case was appealed to the circuit court of Lee county and a trial de novo was had without a jury. Judgment was rendered for the Town of Sublette in the amount of $398.25, together with costs, from which judgment this appeal is taken.

This suit was brought under section 16 of the Paupers Act, Cahill’s Rev. St. ch. 107, ¶ 16, which provides as follows: “If any person shall become chargeable as a pauper in any county or town, who did not reside therein at the commencement of twelve months immediately preceding his becoming so chargeable, but did, at that time, reside in some other county or town in this State, it shall be the duty of the county or town clerk, as the case may be, to send written notice, by mail or otherwise, to the county clerk of the county in which the pauper so resided, or if he then resided in a town supporting its own poor, to the town clerk of such town, requesting the proper authorities of such county or town to remove said pauper forthwith, and to pay the expenses accrued and to accrue in taking care of the same; and such county or town, as the case may be, where such pauper resided at the commencement of the twelve months immediately preceding such person becoming chargeable as a pauper, shall pay to the county or town so taking care of such pauper, all reasonable charges for the same, and such amount may be recovered by suit in any court of competent jurisdiction.”

Edward McNinch, father of Walter McNinch, testified that Walter lived in Reynolds township for two or three years; that with his consent Walter was removed from Reynolds township to the sanatorium at Ottawa, from which he was taken by Mr. Sandrock, the supervisor of the Town of Reynolds, and brought to the father’s home in Sublette township; that at the time Mr. Sandrock brought Walter home from Ottawa, he said to the father that he thought he would make Mr. Keubel sore. Mr. Keubel was then the supervisor of Sublette township.

Mrs. Elsie McNinch, the mother of Walter McNinch, testified that Walter had lived in Reynolds township from 1929 until 1931, when he was taken to the Ottawa sanatorium; that Walter remained in the hospital for quite a length of time, and was brought to her home in Sublette township by Mr. Sandrock; that Walter remained at their home for two weeks, and was then taken to the Amboy hospital.

Charles J. Keubel testified that he was the supervisor of Sublette township; that he knew Walter McNinch, and that McNinch lived in Reynolds township ; that at one time McNinch had lived in Sublette township; that after he moved away from Sublette township to Reynolds township he did not see him again until he came back from the sanatorium; that a few days after McNinch came back from the sanatorium he made arrangements for his removal and he was taken to the Amboy hospital; that as supervisor he paid the bills for medical care and attention to Walter McNinch ($320 hospital bill, $73.95 doctor bill, and $5 dental bill), all paid by Sublette township; that the town clerk of Sublette township and he served notice upon the town clerk of Reynolds township that they would hold said township liable for the support of Walter McNinch, a pauper,

Ernest Theiss testified that he was the town clerk of Sublette township and served notice upon the town clerk of Reynolds township that Walter McNinch was a pauper and that Sublette township would hold Reynolds township liable for the support of the same. A copy of the notice was introduced in evidence and the plaintiff rested.

The defendant offered its evidence and called George Ackland as a witness. He testified that he was the town clerk of Reynolds township and had been for several years last past; that he had searched the records of said township and found no record of Walter J. McNinch having voted in said township for the past five years.

William Sandrock testified that he was supervisor of Reynolds township and had been for the past six years; that he had known Walter McNinch from the time he moved to said township; that he never had any conversation with him relative to his health; that he left Reynolds township in April, 1931, when he went to Ottawa to the hospital; that Walter McNinch had not lived in Reynolds township since April 6, 1931; that when Walter McNinch left the Ottawa hospital he said he wanted to go to Sublette township where his parents lived. On cross-examination Sandrock testified that he provided for the removal of Walter McNinch from Reynolds township to the sanatorium at Ottawa; that he, as supervisor, rendered Walter McNinch support before he left Ottawa and arranged for his children to be sent to an orphanage; that he gave him county aid as supervisor of Reynolds township; that McNinch came to him for county aid, and at that time the county was taking care of the poor.

Frank Schinzer testified that he lived in Bradford township, but owned a farm in Reynolds township; that he knew Walter McNinch and McNinch had lived (m said farm; that McNinch at present is not living on the Reynolds township farm; that he left said township in April, 1931.

From a review of this evidence it is plainly shown that when Walter McNinch was taken to the hospital at Ottawa he was a resident of Reynolds township, and at that time Reynolds township was liable for his support and maintenance as a pauper. This was clearly recognized by the supervisor of said township by giving McNinch aid when he made application to him for help. The question then arises: Can the Town of Reynolds shift its responsibility for the support of this pauper by a supervisor taking McNinch to the hospital at Ottawa, and then on his discharge from the hospital taking him over into another township and throw the burden of supporting a pauper on it?

In the case of Town of Freeport v. The Board of Supervisors of Stephenson County, 41 Ill. 495, 501, the question of the responsibility for the support of a pauper was involved and the court in that case held that because paupers were removed from their home to the county poor house, these persons did not lose their residence in the town they lived at the time they were removed to the poor house, nor do they gain a residence in the town in which the poor house was located; but remained a charge upon the town from which they were sent.

It is our opinion that the evidence shows that the said Walter McNinch is a pauper and that he is a resident of the Town of Reynolds; he being a pauper and a resident of that place, the Town of Reynolds cannot shift the responsibility of caring for him by taking and leaving him at the home of the parents in another township. We find no reversible error in the case and the judgment of the circuit court of Lee county is hereby affirmed.

Judgment affirmed.


text:
    B. R. Westphal et al., Appellees, v. Albert G. Berthold et al., Appellants.
    Gen. No. 8,721.
    Opinion filed January 19, 1934.
    Fred B. Shearer, for appellants; Walter B.’ O’Malley, of counsel.

      Emigh & Cockfield, for appellees; John S. Petersen, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

The appellees filed a suit in the circuit court of Kane county asking for a mechanic’s lien against the property of the defendants in said county. The bill of complaint is in the usual form as in such cases and alleges that the appellees, the complainants in the bill, had furnished material for the construction of a building upon the property of the defendants. The bill alleges that a contract was made with J. A. Foster, a tenant in possession of the premises, for the erection of a building to be used as a restaurant and lunch room; that Albert C. Berthold was the owner of the premises, and had knowledge of the making of the improvements by Foster, and that by reason of such knowledge, A. C. Berthold knowingly permitted the improvements to be made; that the building erected on said premises was a permanent and valuable improvement to the property.

The answer of the appellant, Albert C. Berthold, admits that the appellees were engaged in the business of selling building material as represented in the bill of complainant; that he is the owner in fee simple of the lot upon which the building is erected.

The answer further admits that on or about the 3rd day of July, 1929, the defendant, J. A. Foster, entered into possession of the premises described, under and by virtue of a certain lease, from the defendant Berthold, for a term of one year; that said lease was of the same date; that said Foster was in possession of the premises under the terms of said lease until about the 1st of October, 1929.

The defendants further in their answer aver that they are not advised whether the building material as alleged in the bill of complaint was furnished to Foster to be used in the erection of the building, but calls for strict proof in regard thereto. The answer denies that the building erected upon the premises was a permanent improvement, or that it enhanced the value thereof, and claims that the building constructed was a temporary one, of frame construction with brick veneer on the exterior. The answer charges that the defendant, A. C. Berthold, gave each of the complainants notice that the property was under lease and that he would not be responsible for any labor or material used in the construction of any structure that might be built upon said premises, and that the premises would not be subject to a lien for any labor or material, if such is furnished therefor. This notice was dated July 24, 1929. The defendant, Berthold, further answering denied that any improvement was made upon the premises described in the bill with his consent, authority, or knowledge.

Replications were filed to the answer. The court heard the evidence and found the issues in favor of the complainants and entered a decree in conformity with his findings. From this decree the appellant, Berthold, brings this case to this court for review.

It is first insisted by the appellant that the Mechanics’ Liens Law, Cahill’s St. ch. 82, ¶ 1 et seq., is a statute passed in derogation of the common law, and as such it has been uniformly held in this jurisdiction that the law must be strictly construed against lien-claimants. This rule has been long established and needs no quotation of authorities to support it. The appellees admit this to be the law. The question then arises: Have the appellees, the original complainants, shown such a case as would entitle them to a lien as prayed for in their bill of complaint?

By the stipulation entered into between the parties there is no question but that the appellees furnished the material which was used by Foster in the erection of the building on the appellant’s premises; that the appellant had knowledge of the intention of Foster to erect a building upon the premises; that the building as completed was approximately 26 feet wide and 40 feet long, with solid brick walls. The walls were 8 inches thick and 12 feet high. The building is surmounted with a tile coping and has numerous windows, approximately four feet high on the three sides of the building. The building is set upon and rests upon a poured concrete foundation approximately three feet in the ground. It has steel lintels over the windows, with wooden floors, and roof covered with gravel. The completed building cost approximately $5,000; and was occupied by Foster from the 16th of August, 1929, to the 1st day of October, 1929. That the claims for the liens were filed in the time and manner prescribed by the statute of the State of Illinois is agreed. It is seriously contended by the appellant that the erection of this building was a temporary affair, and that his lease of July 31, 1929, provided that Foster was permitted to remove any improvements that he might make upon the lot at the termination of the lease. The appellant insists that the provision in this lease is a strong circumstance to show that it was the intention of the parties that this was a temporary, and not a permanent, improvement-to be erected on the lot. The appellees reply that the nature of the building itself shows that it was meant to be a permanent structure on the lot. They further reply that the lease was made July 31, 1929, and that Foster went into possession of the premises under his prior lease of July 3, 1929, and that the contract for the building material was made, and a large portion of building material was delivered on the premises before the second lease was executed.

It is true that our modern engineers, with up-to-date equipment, might remove this building from the lot upon which it is built without tearing it down, but it would probably cost more than the building is worth. The usual method, of moving a brick building is to tear it down, and then, of course, the improvement would be destroyed. After considering the leases, the use for which this building was constructed, its size, design, the material used and the manner of construction, we are of the opinion that this was a permanent improvement erected on the lot.

The notice appellant served on the materialmen does not affect the rights of the parties, because the notice was not served until after the contract for the building had been entered into between the appellees and Foster, and the greater part, if not all, of the material had been delivered on the premises to be used in the construction of the building.

The appellants insist that the court erred in not requiring the complainants to prove that the improvement made on the premises enhanced the value of the same. Section 1 of the Mechanics’ Liens Statute, Cahill’s St. ch. 82, ¶ 1, provides: “That any person who shall by any contract or contracts, express or implied, or partly expressed or implied, with the owner of a.lot or tract of land, or with one whom such owner has authorized or knowingly permitted to contract for the improvement of, -or to improve the same, furnish material, fixtures, apparatus or machinery, . . . shall be known under this Act as a contractor, and shall have a lien upon the whole of such lot or tract of land . . . and improvements thereon for the amount due to him for such material, fixtures, apparatus, machinery, service or labor, and interest from the date the same is due.”

Section 16 of the Liens Act, Cahill’s St. ch. 82, ¶ 16, relates to improvements made on property that is incumbered by mortgage or other property lien, and is the only section in the statutes that refers to the enhancement of the value of the land by means of the improvement thereon.

The appellant has cited numerous cases in which our Supreme and Appellate Courts have said that it is incumbent upon the party claiming the lien to show that the improvement enhances the value of the premises. An examination of the cases discloses that the court either held that the improvement was of a temporary nature, or else the right of a prior incumbrance was involved, or section 16 of the Mechanics’ Liens Statute applied. The facts in Williams v. Vanderbilt, 145 Ill. 238, disclose that this was not a case between a lien-holder and a prior incumbrancer. However, in the body of the opinion the court quotes a section of the Mechanics’ Liens Law that was then in force. An examination of the same discloses that since the decision of that case the Mechanics’ Liens Law has been amended and changed, so what the court said in the Williams case is not applicable to the case we are now considering.

We are of the opinion that in a case of this kind when a contractor is asking for a lien on property under section 1 of our Mechanics’ Liens Law, where the owner of the property knowingly permitted the contract for the improvements to be made, the materials furnished and a building permanent in character erected on the owner’s premises, it is not necessary for the contractor to allege, or prove, that the improvement enhanced the value of the property. However, the appellant is not in a position to raise this question for the Supreme Court in the case of Fehr Construction Co. v. Postl System of Health Building, 288 Ill. 634, at 643, in passing upon this question uses the following language: “The evidence in the record is abundant to show that plaintiff in error authorized and knowingly permitted its lessee to contract for said improvements and that it directed the workmen and Boche where to place some of these fixtures. Besides, one who agrees with another that he shall place buildings or other improvements upon his property thereby authorizes or knowingly permits such other to improve his property within the meaning of the Mechanic’s Lien Law, and cannot be heard to say that the cost is excessive or the improvement undesirable or unprofitable when there are no restrictions as to the extent of such improvement.”

We are of the opinion that the court properly found that the building erected on the appellant’s property was permanent in its character, and that the appellees were entitled to liens for the amount due them for the materials they furnished, and which were used in the construction of the building.

Decree affirmed.


text:
    J. Weston Essington, Receiver of the Utica State Bank of Utica, Appellee, v. Estate of William Wylie, Deceased, Appellant.
    Gen. No. 8,731.

      Opinion filed January 19, 1934.
    A. E. Butters, C. B. Chapman, B. A. Green and Hibbs & Pool, for appellant.
    W. C. Jones, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

J. Weston Essington, receiver of the Utica State Bank of Utica, Illinois, filed a claim in the sum of $3,000 against the estate of William Wylie, deceased, in the probate court of La Salle county. The claim was disallowed by the coprt. On appeal to the circuit court a jury was waived and the case tried before the court. The order of the probate court disallowing the claim was reversed and judgment entered against the estate for the sum of $3,000 and costs, payable in due course of administration. From this judgment the administrator has taken an appeal to this court.

The Utica State Bank was examined by the auditor of public accounts of Illinois, on or about June 1, 1931. The examination revealed that securities of the bank, aggregating $31,177.85, had depreciated in value. On June 11, 1931, the cashier and three of the seven directors of the bank met with the auditor at his office in Geneva. The auditor was represented by Mr. Wylder, chief bank examiner of Northern Illinois. The decedent, William Wylie, was not present. At this meeting there was a discussion concerning the removal of these securities from the bank. At the conclusion of the discussion, the auditor recommended that the directors' charge off the depreciation on the questionable securities from the surplus account of the bank, or remove them from the assets of the bank and replace them with cash. At the time of this meeting the bank was solvent and its capital was not impaired, and the surplus account was of sufficient size to have permitted all of the depreciation on the securities in question to have been charged against it and still leave a balance of $2,000.

On the following day six of the directors, one of whom was William Wylie, now deceased, at a special meeting, adopted the following resolution:

“Be it resolved that Surplus Account be charged with $10,000.00 and Undivided Profits Account be charged with $177.85, and the following items be charged from Assets of the Bank:

Hotel Graemere..................$ 1,000.00

120 West Lake St. Garage........ 2,000.00

Brewerton Coal Corp............. 1,250.00

Inland States Service Co.......... 1,000.00

Geo. W. Hartenbower............ 3,800.00

Other Beal Estate — Joe Kinzer... 1,127.85

$10,177.85

“Be it further resolved that the seven directors furnish $2,850.00 each, making a total of $19,950.00 and E. E. Childers furnish $1,050.00, and the following securities be taken from the Assets of the Bank and Trusteed for the benefit of the seven directors and E. E. Childers, each to benefit pro rata in the liquidation of the Trusteed Assets.

Seaboard Air Line R. R...........$ 2,872.00

Cornell at 54th Apts...............1,000.00

Engineering Bldg................. 1,500.00

Park Central Hotel Annex........ 1,649.00

Book Washington Bldg........... 2,917.50

Jeffry Cyrl Apts................. 485.00

Narragansett Apts................ 3,000.00

Missouri Valley Public Service Co. 2,842.50

Joe Kinzer Mortgage............ 3,734.00

Hotel Graemere.................. 1,000.00

$21,000.00”

On the same day the cashier and the same six directors sent the following letter to the auditor of public accounts:

“June 12th, 1931.

“Mr. Oscar Nelson,

Auditor of Public Accounts,

Geneva, Illinois.

“Dear Sir:

“At a Special Meeting of the Directors of this Bank held Friday, June 12,1931, at four o ’clock, a resolution was passed calling for each of the seven directors to furnish $3,000.00, making a total of $21,000.00, and that Surplus Account be reduced $10,000.00 and Undivided Profits Account be reduced $177.85, and the following assets amounting to $31,177.85 be taken from the Assets of the Bank and $21,000.00 of the assets be Trusteed for the benefit of each of the seven directors, each to benefit pro rata in the liquidation of the Trusteed Assets:

Seaboard Air Line...............$ 2,872.00

Cornell at 54th.................. 1,000.00

Engineering Bldg................. 1,500.00

Park Central.................... 1,649.00

Hotel Graemere.................. 2,000.00

120 West Lake................... 2,000.00

Book Washington................ 2,917.50

Jeffry Cyrl Apts................. 485.00

Narragansetts................... 3,000.00

Missouri Valley Public Service.... 2,842.50

Brewerton Coal (Stock).......... 1,250.00

Inland States Service............ 1,000.00

George W. Hartenbower.......... 3,800.00

Joseph Kinzer, Other Real Estate.. 4,861.85

$31,177.85

“We, the Directors, would appreciate having from fifteen to thirty days in which to raise above amount. Mr. Hornung is sick in bed and unable to attend this . meeting.”

J. J. Hornung, one of the directors of the bank, was not present when the resolution was adopted and the letter written, and did not participate in any manner in the plan as set forth in the resolution. E. E. Childers was the cashier of the bank, but not a director.

After the adoption of the resolution and writing the letter, no further action was taken by board of directors, or any of individual directors to carry out the schemes set forth either in the resolution or in the letter. The securities enumerated in the resolution were never removed, and were the property of the bank at the time it suspended the transaction of business, and are now in the possession of the receiver. William Wylie died on June 26, 1931, and- the bank suspended the transaction of business on October 2, 1931. No tender of these assets, or any part thereof, or interest thereon, was ever made to the decedent or to the administrator of his estate.

Before the hearing of the case in the circuit court, the defendant estate presented a written motion to dismiss the claim for the reason that it did not state a cause of action. The motion was overruled. At the conclusion of claimant’s case, and again at the conclusion of all the evidence, the defendant estate also presented written motions to exclude the evidence and find for the defendant. These motions were also overruled.

Appellant contends: That there was no consideration for any promise which the decedent may have made to pay money to the Utica Bank, and therefore, no liability on the part of his estate; that two of the eight persons who were to assume mutual obligations and receive mutual benefits, as provided in the resolution adopted by six members of the board of directors, did not assent to, participate in or ratify the provisions thereof, and therefore no contract was created and the decedent never became bound; that the six directors, in adopting the resolution, were acting only in their official capacity and not as individuals, and did not, as individuals, ever promise to pay any money to the bank; that the claim against decedent’s estate is in the nature of a suit for the specific performance of a contract and should not have been allowed for the reason that no tender was or could be made of the securities in question by the bank or the receiver thereof; that the judgment is in excess of the amount that could have been allowed under the claim; that the claim does not set forth a cause of action.

The record discloses in this case that the resolution on which the receiver of the bank is now seeking to hold the estate of William Wylie, deceased, was passed by six of the members of the board of directors on June 12, 1931; that the resolution by the board of directors suspending business and closing the bank was entered on October 2,1931. The auditor of public accounts had knowledge that the members of the board of directors of the bank and the individual members of the same had not taken out securities and paid the sum of money into the bank which the resolution called for. The auditor permitted them to do a general banking business for a period of four months, in which no action was taken either by the auditor or the board of directors to comply with this resolution. That is, we think, ample proof to show that at the time the resolution in question was adopted, the board of directors of the bank and also the auditor of public accounts believed the bank was in a solvent condition and the value of the capital stock thereof not impaired.

The auditor reported that certain securities of the bank had depreciated in value and something should be done in regard to those securities to assist in strengthening the financial condition of the bank. He suggested two ways in which this could be done, but advised that the better way would be that $31,177.85 worth of securities be taken from the assets of the bank by the individual members of the board of directors and each of the directors pay into the bank the sum of $3,000 and the balance of the money to be charged against the Undivided Profits Account in the bank. The auditor made no threats that if this was not done the bank would be closed or that there would be a capital stock assessment either against the directors or the stockholders. There was no promise or offer of any kind by the auditor to the directors to do anything. The resolution was merely a voluntary offer on the part of six of the board of directors to pay when the securities were placed in trust for them. It is our opinion that there is no consideration to support or create any contract between the auditor or the bank, and the individual directors by the adoption of the resolution.

The resolution by six of the seven directors attempted to bind all seven of the directors, and also the cashier, E. E. Childers, to pay to the bank the sum of $21,000. It provided that certain securities were trusteed for the benefit of these eight parties and that then they would pay a certain amount to the bank to go into the general assets of the same. This was a mutual undertaking and the obligations to pay money were to be concurrently carried out. In return thereof, the parties were to share pro rata in the liquidation of the trusteed securities. It is our opinion that this was a joint undertaking and if all of the parties named in the resolution did not agree to its terms, then none of the parties would be bound by the resolution. All did not agree; therefore, no contract relation was created and William Wylie, deceased, never became bound by the terms thereof.

The only acts in which the deceased, William Wylie, participated xvere in the adoption of the resolution of June 11 and the letter of June 12. Certainly in the adoption of the resolution the six directors were acting in their official capacity and not as individuals. The fact that the resolution, signed only by six members of the board, provided for the payment of money by persons not present, strongly indicates that they were acting only in their official capacity, and that before they should all be bound as individuals, a contract of some kind should be entered into by all of them. No such contract was ever prepared or signed. We aré of the opinion that the resolution did not bind the decedent, William Wylie, to pay to the bank any sum of money as set forth in the resolution.

Had a contract been created by the resolution on June 12, 1931, between William Wylie, deceased, and the bank, then the question arises could the estate of William Wylie be forced to pay $3,000 when it is stated in the resolution that the securities mentioned were to be trusteed for the benefit of the directors and are conceded now to be in the hands of the receiver as part of the assets of the bank. The resolution provides that the directors should pay this money into the bank on a specified condition. That condition was that $21,000 worth of security should be placed in trust for the benefit of the directors and Childers. After the resolution was passed no effort was made by the board of directors to do this. Neither has' the- receiver placed these securities in the hands of trustees for the benefit of the interested parties, nor, as far as the record discloses, has he offered to do so. We think that the failure of the bank or of the receiver to make a tender of these securities for the benefit of the directors and Childers, is a bar to the receiver in attempting to enforce this resolution, and defeats a recovery of the claim against the estate of William Wylie, deceased.

It is insisted by the appellant that the claim filed does not state a cause of action and the court erred in not sustaining the motion to dismiss the same. We are of the opinion that the appellant was fully informed of the nature of the demand and from an examination of the claim itself he could ascertain what he had to meet at the trial. The claim is sufficient for that purpose. The objection that the judgment is in excess of the amount that could be allowed under the claim because the resolution on which the receiver has relied, only attempted to hold the estate of William Wylie, deceased, for the sum of $2,850, we think is well taken, but it is immaterial to our view of the case. It is our opinion that the circuit court of La Salle county erred in entering judgment on the claim in this case. The judgment should be and it is hereby reversed.

Judgment reversed.


author: Mr. Justice Davis Per Curiam :

text:
    John Micezey, Appellant, v. Missouri State Life Insurance Company, Appellee.
    Gen. No. 8,751.
    Opinion filed October 13, 1933.
    Rehearing denied and additional opinion filed February 20, 1934.
    John W. Speakman and J. R. Dean, for appellant.
    Gunn, Penwell & Lindley, Allen May and J. R. Buroham, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.

Appellant brought an action of assumpsit against appellee on an insurance policy. The amended declaration consists of two counts; the first count sets out in full the wording of the policy, from which it appears it was dated January 1, 1928, and was a straight life insurance policy upon the life of appellant and provided for the payment óf $850 to Joe Mieezey, the son of appellant, in case of his death, which amount was subsequently raised to $1,000 by a rider attached to .said policy.

This policy also made provision for total and permanent disability benefits, as follows:

“If a Member shall furnish the Company with due proof that before having attained the age of sixty years, he or she has become totally and permanently disabled by bodily injury or disease, and that he or she is then, and will be at all times thereafter, wholly prevented thereby from engaging in any gainful occupation, and that he or she has been so permanently and totally disabled for a period of six months, the Company will immediately pay to the Member, in full settlement of all obligations hereunder, the amount of insurance in force hereunder or on the Member at the time of the approval by the Company of the proofs as aforesaid. ’ ’

It is charged' in this count of the declaration that plaintiff was unable to read or write the English language ; that the policy of insurance was solicited from him, by an agent of the defendant, in the mine of the United States Fuel Company, near Georgetown, Illinois, sometime in the month of December, 1927; that at said time he told said agent that he was -64 years of age; that said agent then and there represented to him that said policy of insurance was a policy of life insurance and a policy of insurance against permanent and total disability; that said agent did not inform the plaintiff concerning, or read to the plaintiff, the provision of said policy with respect to age and that portion of the policy with reference to the permanent and total disability insurance; that he did not know of the existence of any provision contained therein with respect to age; but that the defendant, knowing that the plaintiff was more than 60 years of age, issued to plaintiff the policy of insurance.

The plaintiff averred that he became totally and permanently disabled by bodily injury and disease, and that he will be at all times hereafter wholly prevented from engaging in any gainful occupation, and that he was also permanently and totally disabled for a period of six months.

The second count of the declaration avers, after setting forth the clause in the policy providing for the payment for total and permanent disability benefits, that at the time said policy of insurance was solicited from him, and also at the time that said policy of insurance was issued, there was then in force in the State of Illinois an act entitled “An act to organize and regulate the business of life insurance” (approved March 26, 1869), Cahill’s Ill. St. 1931, ch. 73, ¶ 346, which provides as follows: “Whoever solicits insurance on behalf of any life company not chartered by and not established within this State, . . . shall be held to be an agent of such company to all intents and purposes, and subject to all the duties, requisitions, liabilities and penalties set forth in the laws of this State relating to life insurance companies not incorporated by the Legislature thereof”; that the defendant is a corporation organized under the laws of the State of Missouri, and not a domestic or an Illinois corporation; that an agent of said defendant interviewed the plaintiff at the mine of the United States Fuel Company, near Georgetown, Illinois, and solicited from him said policy of insurance and took his application therefor; that later said policy was delivered to him by an employee of the United States Fuel Company at their offices in Vermilion county, Illinois; that the premium on said policy was deducted from his wages earned while employed by the United States Fuel Company ; that no conversation, dealing or business connection with respect to said contract of insurance was had by any other employee of the defendant; that he is unable to read or write the English language; that said agent represented to him that said policy of insurance was a policy of life insurance and a policy of insurance against permanent and total disability; and that at that time he informed the agent of the defendant that he was 64 years of age, and that said agent then and there informed him it made no difference what his age was, that the defendant would insure him against total and permanent disability despite his age; that he did not have to die in order to collect said policy; that if he became permanently and totally disabled the defendant would pay him the insurance provided in said policy; that he relied upon the representations of the agent of the defendant and accepted said policy, believing that he was insured by said policy against total and permanent disability notwithstanding his age; and that, thereafter, he paid the premiums on the policy for both life insurance and total and permanent disability insurance, which was accepted and retained by the defendant.

To the amended declaration the defendant filed a general demurrer. The circuit court of Vermilion county sustained the demurrer of the defendant to the amended declaration, and plaintiff elected to abide by the declaration, and the court thereupon entered a final judgment, from which judgment the plaintiff perfected this appeal. The question to be determined is whether the circuit court erred in sustaining the demurrer to said amended declaration.

This policy is what is known as a group policy of insurance, and from the averments of the declaration it appears that an agent of the defendant solicited this insurance, and that an employee of the United States Fuel Company, for whom the plaintiff was working, acted as the agent of the defendant in the collection of the premiums due thereon, which were retained out of the wages of the plaintiff; that the plaintiff informed the agent that his age was 64 years, and was assured by the latter that notwithstanding that fact the policy would cover both life and total and permanent disability; and plaintiff, who could neither read or write the English language, relied upon such representations of the agent and accepted the policy and paid the premium for both life insurance and total and permanent disability insurance.

It is the law of this State that notice to the insurance agent, at the time of the application for insurance, of facts material to the risk is notice to the insurer, and such insurer cannot later repudiate the policy on account thereof. Provident Savings Life Assurance Society v. Cannon, 201 Ill. 260; Guter v. Security Benefit Ass’n, 335 Ill. 174.

The agent of appellee knew that appellant was 64 years of age at the time he solicited the insurance and assured appellant that notwithstanding his age the policy would cover both life and total and permanent disability, and that he did not have to die in order to collect said policy. If such representations were made for the purpose of inducing appellant to take the policy of insurance and pay the premiums thereon, for both life and total and permanent disability, as alleged, and appellee having issued said policy covering both life and total and permanent disability and collected the premiums thereon, it would be estopped from denying liability on said policy insuring against total and permanent disability because of the provisions therein contained as to the age of the insured, especially so because appellant could neither read or write the English language. Appellee relies upon the case of McLain v. American Glanzstoff Corp., decided by the Supreme Court of Tennessee, March 4, 1933, 57 S. W. (2d) 554, in support of the judgment of the circuit court. In that case under a somewhat similar policy, which provided for both life and total disability insurance and by which the liability for total disability ceased at the age of 60 years, and the allegations of the bill were that complainant was 61 years of age when the policy was issued to him, it was held that he could not recover. We think that case is distinguishable for the reason that no fraud or misrepresentations were made in that case. The court there said “no fraud or misrepresentation is alleged, and the language quoted above, written into complainant’s certificate, is about as plain as it could be made. ’ ’ The language referred to as having been written into the certificate was, “However, after the age of sixty, the total and permanent disability benefits do not apply. ’ ’

There was also no allegation that the complainant could not read or write the English language.

In our opinion the trial court erred in sustaining the demurrer to the declaration. The judgment is reversed and the cause remanded.

Reversed and remanded.

Additional Opinion Upon Petition for Rehearing.

Per Curiam :

In' a petition for rehearing, filed by appellee, it is claimed that our decision in this cause is inconsistent and at variance with a former decision of this court rendered in the case of Rozgis v. Missouri State Life Ins. Co., 271 Ill. App. 155. The declaration in the Rozgis case is very materially different from the declaration filed in the case at bar. In the Rozgis case there were no allegations that the agent of defendant told the plaintiff that the policy of insurance was for permanent and total disability as well as for life, or that the plaintiff was unable to read or write the English language, or at the time the insurance was solicited the plaintiff informed the agent that he was past the age of 60 years and that the agent informed him that it made no difference what his age was, that the defendant would insure him against total and permanent disability despite his age, or that the plaintiff paid the premiums on the policy for both life insurance and total and permanent disability insurance, which premiums were accepted by the defendants

Under the declaration in the JRozgis case w;e held, in substance, that no "cause of action could be sustained.

It is true that it was also held in that case: “But the fundamental defect with this cause of action is that appellee is seeking to compel appellant to execute a contract which it did not make and which is against the public policy of the State. All insurance is permeated with a public interest, and policies of this character are supervised and controlled by the State. Illinois has a standard form of policy, supervised by the Director of Trade and Commerce, and it is provided in section 280, chapter 73, Smith-Hurd’s Revised Statutes 1931 (Cahill’s St. ch. 73, ¶ 538):

“ ‘No policy of life insurance shall be issued or delivered in this State by a company organized under the laws of any foreign government doing a business of life insurance under this Act, until the form of the same has been filed with the Director of Trade and Commerce and after the Director of Trade and Commerce shall have notified any company of his disapproval of any form, it shall be unlawful for such company to issue any policy in the form so disapproved, ’ etc.

“No form of policy has ever been issued or sought in the State of Illinois insuring against total and permanent disability by bodily injury or disease, accruing before one becomes 66 years of age or accruing before one becomes 64 years of age, and it is, therefore, a subject as foreign to the insurance laws of this State as any subject of speculation, imagination or chance, and becomes a mere gambling contract and is against the public policy of the State.

“Neither the legislature nor the common law has vested in the courts the administrative power to determine what are the proper subjects to be protected by insurance, which are only to be determined by a vast amount of accumulated data, facts and experience, the results of which are changeable with the times, seasons and cycles. This court is without power, authority or inclination, by estoppel or otherwise, to give effect to an illegal and unlawful contract of the nature as arises in this suit. ’ ’

The above part of the opinion in the Rozgis case as quoted was unnecessary to a determination of the issues in that case and was therefore obiter dictum.

The petition for rehearing is, therefore, denied.

Rehearing denied.