author: Mr. Presiding Justice Stone

text:
    Shapleigh Hardware Company, Appellee, v. Enterprise Foundry Company, Appellant.

      Heard in this court at the October term, 1939.
    Opinion filed April 23, 1940.
    P. K. Johnson, of Belleville, for appellant.
    Nagel, Kirby, Orrick: & Shepley, of St. Louis, Mo., and Warnock, Williamson & Burroughs, of Edwardsville, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an action at law by Shapleigh Hardware Company, a corporation engaged in the wholesale hardware business in St. Louis, Missouri, against Enterprise Foundry Company, a corporation, operating a foundry and stove plant in Belleville, Illinois. The pleadings under which the case was tried consisted of amended complaint, answer and reply, bill of particulars of plaintiff and a counterclaim of defendant and answer of the plaintiff thereto. A trial before the court without a jury resulted in a finding of the issues for the plaintiff and judgment against the defendant for $11,632.32, and appeal therefrom was taken to this court.

Defendant for many years was engaged in the manufacture of stoves and stove parts in Belleville, Illinois, the stock being owned by A. O. Spoeneman and his brother and sister, A. 0. Spoeneman owning 300 shares out of a total of 700 shares. Prior to 1926, the said Spoeneman had no interest in, or connection with the Belleville Stove and Range Company. During that year banking interests in Belleville, who were creditors of the Belleville Stove and Range Company, requested the said Spoeneman to make a survey of the condition of that company. He did so and found its losses heavy. In 1928 or 1929 he began to buy stock in the Belleville Stove and Range Company, and by the end of 1929 or 1930 had acquired the controlling interest in that company, having 504 shares out of a total of 1000.

In 1926, the Belleville Stove and Range Company closed its foundry and entered into a contract for a term of eight years with defendant, in which contract defendant agreed to make castings for the Belleville Stove and Range Company. In July, 1932, the Belle-ville Stove and Range Company was insolvent, and among others, was indebted to the defendant, to A. O. Spoeneman and William Lugge, all of which indebtedness was unsecured.

The company then made a written assignment to William Lugge, one of its stockholders, as trustee, of all of its personal property, not pledged in a deed of trust heretofore given, covering the real estate; which personal property consisted of bills receivable, manufactured merchandise, and merchandise in process of manufacture, raw materials, and other personal effects. By the terms of this assignment Lugge, as trustee, was given full authority to convert all of said property so assigned to him into money and apply the proceeds therefrom, to two banks who were creditors, and the defendant company, and the surplus if any, was to be applied to the indebtedness of A. O. Spoeneman, H. E. Kaufman and William Lugge. The trustee thereupon took charge of all of this property so assigned to him and proceeded to sell same. After the execution of the assignment, he continued his office at the office of the Belleville Stove and Bange Company, for only two or three months and then moved his office to the plant of the defendant, where he remained until the liquidation was completed.

In July, 1932, defendant acquired the trade name and good will of the Belleville Stove and Bange Company. The trustee, Lugge, while liquidating and disposing of the trust property assigned to him did not operate the foundry or any plant of the Belleville Stove and Bange Company, did not employ any labor, other than a stenographer, paid no wages, paid no bills or expenses of any kind and had no checking account. His salary and that of his stenographer were paid by the defendant, as were his office expenses. The evidence indicates that the property assigned to Lugge was disposed of and converted into cash in the following manner: when orders for stoves or stove parts were received by him for the Belleville Stove and Bange Company such orders were turned over to and filled by the defendant, the defendant in so doing using such material as Lugge had on hand as trustee. Prior to August, 1933, invoices for these orders were sent to customers on invoice blanks of the Belleville Stove and Bange Company, on each of which was written at the bottom in red ink: “Make all checks payable to Enterprise Foundry Company; also send remittances to them at Belleville, Illinois.” Invoices sent to plaintiff from September 1933, to the end of that year were on the same forms, except that the name “Belleville Stove and Bange Company” had been scratched out and there had been printed over that name “Stove Division, Enterprise Foundry Company.”

These preliminary facts outlining the relationship of the Belleville Stove and Bange Company, and the Enterprise Foundry Company, defendant, and those individuals interested in both companies, are given in detail, because of the theory of the plaintiff and the ultimate finding by the trial court that the defendant was the undisclosed principal of the Belleville Stove and Bange Company in the contract made by the latter with the plaintiff, with which finding we are inclined to concur.

For many years prior to and including the year 1933, plaintiff had done business with the Belleville Stove and Bange Company and from time to time placed with it orders for merchandise. It had been the custom of the Belleville Stove and Bange Company to send to plaintiff and other of its customers, immediately after the first of the year, a price list containing a complete list of the articles it desired to sell and the prices for same, which were to remain in force during that year, unless notified to the contrary. This list, was mailed by Mr. Lugge, as trustee, to the plaintiff on February 25, 1933, in a letter to which he signed the name of the Belleville Stove and Bange Compnay. Among those items listed was the stove involved in this case, priced at $5.65 plus $.25 for crating.

From time to time circulars received from the United States government about business, would be sent by Lugge to various firms and on August 25,1933, he sent to plaintiff an invitation from the war department for bidding on furnishing 3,500 box-type stoves required, for use by the Civilian Conservation Corps. With the blanks Lugge inclosed a letter in the name of the Belle-ville Stove and Bange Company requesting plaintiff to put in its bid and stating that the order would be taken care of promptly, if obtained, by plaintiff. This letter was received by George McNutt, assistant buyer of plaintiff, who immediately called Lugge on the telephone and was advised by him that they would be able to. make delivery of the stoves in 30 days and at the price, stating at that time that Mr. Spoeneman was sitting at his desk.

Following this conversation plaintiff, on August 28, 1933, submitted its bid to the United States government to furnish 3,500 stoves of the kind desired for the sum of $21,315 to be delivered F. O. B. Belleville, Illinois, within 30 days after receipt of notice of the award. On September 7, 1933, plaintiff received from the government a telegram advising that its offer to furnish the stoves had been accepted. Thereupon plaintiff entered into a written contract with the United States government, date of September 8,1933, to furnish said stoves within 30 days from that date which contract-provided for a penalty of $1 per stove for each day’s delay in delivery after said 30-day period. This word was telephoned by plaintiff either to Mr. Lugge or Mr. Spoeneman and on September 8th, both of these men went to the office of plaintiff at St. Louis. There Mr. C. E. Grill who was the buyer for the plaintiff showed the telegram of award to Mr. Spoeneman and Mr. Spoeneman stated that he could not make delivery in 30 days on account of labor trouble, scarcity of material and other difficulties.

Mr. Spoeneman denied having been advised of the bid over the telephone and claimed that he did not know of the government’s award to the plaintiff until he was shown the telegram in the plaintiff’s office. Then followed some negotiations over the telephone and in person with Colonel Van Dyne of the quartermaster’s department, attempting unsuccessfully to obtain an extension of time, in which to deliver the stoves in question.

During the course of these negotiations Mr. Spoeneman wrote a letter to Colonel Van Dyne, copy of which he sent to Grill, representing the plaintiff which letters were signed “Enterprise Foundry Company, A. E. Spoeneman” and “Belleville Stove and Range Company, Stove Division of the Enterprise Foundry Company, A. E. Spoeneman.” During this period of attempting to secure an extension of time, there seems to have been no question raised that there was no contract.

Defendant only performed its contract in part and only delivered to plaintiff 389 stoves. When it became apparent that defendant could not perform its contract, plaintiff went into the open market and bought the balance of the stoves contracted for 3,111 in number, from various manufacturers, at a price in excess of the contract price.

It is assigned as error, that the findings and judgment are erroneous for the reason that plaintiff entirely failed to prove an essential and material part of its amended complaint, namely, that a contract as alleged existed between plaintiff and defendant or between plaintiff and Belleville Stove and Range Company, and for the further reason that the defendant was not the undisclosed principal of Belleville Stove and Range Company and that the findings and judgment are therefore contrary to the evidence.

We believe that the evidence clearly shows a contract existing between the plaintiff and the defendant as an undisclosed principal acting by and through the Belleville Stove and Range Company, as its agent. This is shown by the conversation, letters and memoranda of the parties and from their acts and conduct as well. The trial court so found, and findings of the court in trials without a jury are entitled to the same weight as a jury’s verdict and will not be set aside unless manifestly against the weight of the evidence. Keefer Coal Co. v. United Electric Coal Cos., 291 Ill. App. 477, 486; Broderick v. O’Leary, 112 Ill. App. 658, 661; Wood v. Price, 46 Ill. 435.

Complaint is made that the court admitted improper testimony on behalf of plaintiff. It is sufficient to say the evidence claimed to have been erroneously admitted was not controlling in character, nor calculated to influence the finding of the court. When this is the case the judgment will not be reversed because of the admission of improper testimony, and especially so when there is sufficient competent testimony to sustain the judgment. Schroeder v. Harvey, 75 Ill. 638; Palmer v. Meriden Britannia Co., 188 Ill. 508; Broderick y. O’Leary, 112 Ill. App. 658, 661.

The calling of the witness, William Lugge for cross-examination under section 60 of the Civil Practice Act [Ill. Rev. Stat. 1939, ch. 110, §184; Jones Ill. Stats. Ann. 104.060], and the overruling of the defendant’s objection to his testimony is urged as error on the part of the trial court. The statute provides that the officers, directors and managing agents of any corporation may be examined as if under cross-examination at the instance of the adverse party. The witness was the secretary of the defendant company, and we hardly feel constrained to hold that it was improper cross-examination to interrogate him about the previous history of the Belleville Stove and Range Company, under the theory of the plaintiff that the defendant was the undisclosed principal of the Belleville Stove and Range Company, even if the witness was not an officer of the defendant company at that time. In no event could any harm have resulted from this preliminary examination, as the defendant afterwards called the same witness and substantially the same facts were developed then, as upon his previous examination.

For the reasons given above, the judgment of the lower court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Wolfe

license: Public Domain

text:
    Henry Doll, Jr., Appellee, v. Mary Walter, Executrix of the Estate of Fred Walter, Deceased, and Mary Walter, Individually, Appellants.
    Gen. No. 9,533.
    Heard in this court at the February term, 1940.
    Opinion filed April 26, 1940.
    John J. Massieon, of Peru, and John H. Armstrong, of Ottawa, for appellants.

      Trimble & Trimble and Robert A. Oakes, all of Princeton, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

The defendant has appealed from a decree of the circuit court of Bureau county declaring that a judgment obtained by the defendant, in said court against one, Charles Walter, is not a lien on an undivided one-half interest in a farm, which interest Walter sold to the plaintiff, his cotenant, and that a sheriff’s sale purporting to sell the interest of Walter in the. farm under execution, issued by virtue of the judgment is void. The decree follows the prayer of the complaint that the judgment and the sheriff’s certificate of sale be declared by the court to be clouds on the plaintiff’s title and that they be removed by order of the court.

The farm is located in Bureau county. On March 7, 1922, the plaintiff and Charles Walter bought the farm and continued to own it as tenants in common, until a short time before August 12, 1937, when Walter verbally agreed with the plaintiff to sell his undivided one-half interest to the plaintiff. As part of the purchase price, the plaintiff agreed to pay the balance due on several notes, on March 1, 1938. The notes were originally for the sum of $46,000 and were secured by a trust deed on the farm and other real estate. The amount due on the notes on March 1, 1938, was, it is estimated, $6,018.19. The purchase price of Walter’s interest was $7,275. There was due Walter from the plaintiff on March 1, 1938, in cash, one-half of the difference between the purchase price and the amount due on the notes on March 1, 1938. By the agreement of sale, the cash difference due Walter was by the plaintiff to be credited on a note of Walter held by the plaintiff.

On August 12, 1937, Walter and his wife executed a quitclaim deed conveying the farm to the plaintiff and they delivered the deed to Cairo A. Trimble in escrow with oral instructions to record the deed when the plaintiff paid the balance due on the notes. On March 1, 1938, the plaintiff paid the balance due on the notes, and credited Walter’s note with the cash amount due him on the purchase price of the farm. The deed was filed for record on October 24, 1938.

On June 18, 1938, the defendant secured a judgment against Charles Walter and his wife in the circuit court of Bureau county. The sheriff levied on Walter’s alleged interest in the farm, and on February 16, 1939, sold all right, title and interest of Charles Walter and his wife in the farm to the defendant, and he issued to him a certificate of sale.

The defendant pleaded the statute of frauds alleging that the contract for the sale of the farm between the plaintiff and Charles Walter and the escrow agreement between the plaintiff and Charles Walter, were not in writing, nor was any written memorandum or note made of the same. It is contended by the defendant that the contract of sale is void, under the provisions of the statute of frauds. There ,are several reasons why such a defense to plaintiff’s claim of ownership of the farm against the defendant’s claim of judgment lien on one-half interest in the farm cannot be sustained. There is nothing in the record showing that the defendant had any interest in the farm, nor was in privity with the parties when they made their agreement of sale; defendant, therefore, is in no position to interpose the statute of frauds. (Pasquay v. Pasquay, 235 Ill. 48; People v. Tombaugh, 303 Ill. 591.) It is also the rule that where an oral agreement of the sale of real estate is fully performed, and a valuable consideration paid and possession taken under the contract, the purchaser or grantee may, in equity rely upon his equitable title for a defense, although a deed has not been, delivered before a judgment is taken by a third person against the grantor. (Pasquay v. Pas- quay, supra.) The plaintiff fully performed his part of the agreement to purchase the farm, and the delivery of the deed by the escrowee to the plaintiff was obligatory. To hold under such facts that the contract was within the statute of frauds, would make the statute an engine of fraud. (Ropacki v. Ropacki, 354 Ill. 502.)

The purchase price of the farm was at the rate of $100 per acre and there is no evidence that this was an inadequate consideration. The full purchase price was paid before the defendant secured his judgment. There is no proof that the transaction between the plaintiff and Walter, involving the sale of the farm and the placing of the deed in escrow, was “a contrivance to interfere with the rights of creditors.” Price v. Pittsburgh, Ft. W. & C. R. Co., 34 Ill. 13.

It is argued by the defendant that the plaintiff took no legal or equitable title to the farm until a second delivery of the deed by the escrowee, which was after the defendant secured his judgment. A consideration of the question whether an escrow passes title to the grantee according to the intention of the parties to the escrow agreement, on delivery to the depositary, or on second delivery, we deem unnecessary. Possession of property is equivalent to the recording of a deed. (Chicago Title & Trust Co. v. Darley, 363 Ill. 197.) It is stated in the case of Nelson v. Joshel, 305 Ill. 420, as follows: “Possession of land is notice to all persons dealing with it of whatever rights the one in possession claims, and a purchaser takes subject to such claims provided they are well founded. Possession, however, is notice of such facts, only, as inquiry of the occupant would disclose and that would be the nature of his claims. A purchaser is bound to inquire of one in possession by what right he holds possession and what interest he claims in the premises, and the law declares that the purchaser has constructive notice of all those things which he would have learned respecting the title or claim of the party in possession by inquiry of him. ’ ’ In the case of Bullard v. Turner, 357 Ill. 279, it is stated that, “Under the system of recording the evidences of title to real estate in force in this State, the actual occupancy of land is equivalent to the record of the instrument under which the occupant claims so far as notice to subsequent purchasers and incumbrancers is concerned.” Subsequently in that case it is also stated:

“A purchaser or incumbrancer is bound to inquire of a person in possession of real estate by what right he holds possession and what interest he claims; and in case the purchaser or incumbrancer fails to make such inquiry, the law charges him with constructive notice of all those facts which he would have ascertained respecting the claim or title of the person in possession had inquiry been made of him.” The same law applies to judgment creditors who claim interest in land of which another has possession when the judgment was secured; judgment creditors, in such a case, are on the same footing as purchasers. (German-American Nat. Bank v. Martin, 277 Ill. 629; Carnes v. Whitfield, 352 Ill. 384.)

On and before August 12, 1937, the house on the farm was occupied by William Doll, a brother of the plaintiff. He also rented the pasture land of about 12 acres, as a tenant of a part of the farm of the then-owners, Charles Walter and the plaintiff. In 1937, the plaintiff cultivated the remainder of the farm and resided on another farm. Charles Walter resided in Princeton during all the time now in question. Before March 1, 1938, William Doll removed from the farm and the plaintiff, on about March 1, 1938, went into the exclusive possession of the entire farm, residing in the dwelling house thereon with his family, and continuously retained such possession until the filing of his complaint. That the plaintiff took and maintained his possession of the farm under his contract, there is no doubt from the evidence. (Farmers’ Nat. Bank of Bushnell v. Sperling, 113 Ill. 273; VanGundy v. Tandy, 272 Ill. 319.)

Inquiry by the defendant of the plaintiff by what right or title the plaintiff held possession of the farm, would have resulted in information being given the defendant that the plaintiff held possession under his verbal agreement of sale, and that he had paid the full purchase price of the farm, which was the only condition of the escrow agreement, and that he was entitled to a delivery by Mr. Trimble of the deed to the farm. The deed was the evidence of the plaintiff’s title to the farm and confirmed plaintiff’s equitable title to the farm passing to him under his oral contract of purchase. (Pasquay v. Pasquay, supra.)

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

Affirmed.


author: Mr. Presiding Justice Matchett

text:
    In re Estate of Carrie W. Hills, Deceased, on Appeal from the Probate Court of Cook County. Wilbur Glenn Voliva, Individually and as General Overseer of the Christian Catholic Church in Zion, Appellant, v. Corinne T. Tennon, Executrix, Appellee.
    Gen. No. 40,887.

      Heard in the first division of this court for the first district at the October term, 1939.
    Opinion filed May 20, 1940.
    Rehearing denied June 3, 1940.
    Wham & O’Brien, of Chicago, for appellant; Frank T. O ’Brien and Edwin W. Burch, both of Chicago, of counsel.
    J. Ernest Wilkins and William H. Haynes, both of Chicago, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Wilbur Glenn Voliva, overseer, etc., appeals from an order of the circuit court of Cook county, entered June 6, 1939, which dismissed an appeal taken by him from an order of the probate court entered April 28, 1938, admitting to. probate a will of Carrie W. Hills.' The will in question was executed April 27, 1937. May 16, 1938, Mr. O’Brien, attorney for Mr. Voliva, filed an affidavit in the probate court in which it was asserted that Voliva was named executor in a will of Carrie W. Hills dated November 7, 1931, a copy of which alleged will had been filed with the clerk of the probate court May 13,1937. Mr. Voliva at that time by filing a bond perfected an appeal to the circuit court from the order of April 28, admitting to probate the will of Mrs. Hills executed April 27, 1937. This will named Corinne T. Tennon executrix and residuary legatee. The prior will of November 7, 1931, named Voliva executor and residuary legatee. We shall hereafter refer to these two wills as the “Tennon will” and the “Voliva will.”

Carrie W. Hills, it appears, died March 8,1938, at the age of 96 years. On August 26,1937, Mrs. Hills was adjudged incompetent by the probate court and her estate (consisting of $25,000 in cash) was placed in the hands of the public guardian, who is now acting as administrator to collect of the Hills estate.

April 28, 1938, Voliva filed in the circuit court his bill to contest the Tennon will. Tennon appeared and filed her motion to dismiss in conformity with section 48 of the Civil Practice Act (Smith-Hurd Ann. Stats:, ch. 110, sec. 48 of the act; § 172 of the statute [Jones Ill. Stats. Ann. 104.048]). The ground for the motion was that Voliva was not an interested party within the meaning of section 7 of the Wills Act (Ill. Rev. Stat. 1939, p. 3188 [Jones Ill. Stats. Ann. 110.219]). Affidavits for and against the motion were submitted, and October 14,1938, the circuit court (Judge Brothers) entered an order sustaining the motion and dismissing the bill. No appeal has been taken from that order. The order found that the alleged will of Carrie W. Hills, dated November 7, 1931, had been destroyed by the testator with the intention to revoke it.

November 15,1938, the circuit court, in the matter of the appeal from the probate court, entered an order granting leave to Corinne T. Tennon to file her motion to dismiss the appeal of Voliva from the probate court. The motion was filed based on the theory that the overseer was not an heir at law or next of kin of the deceased and. was without legal capacity to prosecute the appeal in that he was not a person interested in the will within the meaning of section 14 of the Wills Act (Ill. Rev. Stat. 1939, ch. 148, § 16, p. 3190 [Jones Ill. Stats. Ann. 110.228]). Voliva made a motion to expunge the order of November 15, 1938, giving leave to file the motion to dismiss on the ground that the motion, being under section 48 of the Civil Practice Act (Ill. Rev. Stat. 1939, ch. 110 [Jones Ill. Stats. Ann. 104.048]), was not applicable to appeals to the circuit court from the probate court. Affidavits for and against the motion were submitted. One of these (by Elder Wright) averred that the Voliva will had been found and filed in the office of the clerk of the probate court with a petition for letters testamentary, hearing on which had been continued generally. No testimony in open court was taken on the Tennon motion to dismiss the Voliva appeal. The matter was considered wholly on the records of the court and affidavits. The record of the circuit court was produced showing Voliva’s suit against Tennon et al., to contest the Ten-non will and its dismissal on motion by Judge Brothers on October 14,1938, upon a finding that the Voliva will had been destroyed by the testator with intention to revoke it and that Voliva was not a person interested within the meaning of section 7 of the Wills Act (Ill. Rev. Stat. 1939, ch. 148, p. 3188 [Jones Ill. Stats. Ann. 110.219]).

On June 6,1939, the circuit court denied the motions of Voliva and sustained the Tennon motion to dismiss, and this appeal followed.

The right to probate the will of a deceased person or to contest the same when presented for probate or to appeal from an order admitting such will to probate are all rights which are purely statutory. Selden v. Illinois Trust & Savings Bank, 239 Ill. 67, 87 N. E. 860, 130 Am. St. Rep. 180; Robertson v. Yager, 327 Ill. 346, 158 N. E. 709. Chapter 148, §§ 1-23 inclusive, Smith Hurd Ann. Stats. [Jones Ill. Stats. Ann. 110.213-110.237] are applicable to this proceeding. This act has, however, been superseded as to future eases by the Act of July 24, 1939, effective January 1, 1940. (See Laws of Illinois, 1939, p. 4.) Section 7 of the old act provides in substance that when a will has been admitted to probate “any person interested in the will” may within one year thereafter file a bill in chancery to contest the validity of such will. Section 14 of the act provides that appeals may be taken from an order allowing or disallowing any will for probate to the circuit court by “any person interested in such will” in the same time and in the same manner as appeals may be taken from justices of the peace.

In Selden v. Illinois Trust & Savings Bank, 239 Ill. 67, it was decided that the right granted under section 7 would not survive to the heir or personal representative. Thereafter, section 7 was amended but section 14, which uses language in substance the same, was not amended and this is significant.

Voliva, overseer, says in his brief that the “principal question on the appeal therefore is whether one not an heir at law who was named executor and beneficiary under an earlier will of a decedent, not admitted to probate, may prosecute in the circuit court an appeal from an order of the probate court, admitting a later will to record.” It is said the precise question has never been raised before in courts of review in this jurisdiction, but it is urged that decided cases hold such a party under such circumstances may contest a later will depriving him of his legacy.

It is argued it was the intention of the legislature to provide the contestant of a will with two concurrent remedies. O ’Brien v. Bonfield, 220 Ill. 219, is relied on. An examination of that case discloses the statement is not accurate or complete. In the O ’Brien case the last will and testament of Mary A. Williams was admitted to probate, and one of the heirs at law appealed to the circuit court. The appeal was taken October 22, 1903. March 27,1904, the circuit court entered an order that the will be admitted to probate and so certified to the county court. O’Brien appealed to the Supreme Court where the order of the circuit court was affirmed February 7,1905. This order was filed in the county court on March 6, 1905. April 11, the heirs filed a bill in the circuit court to contest the will of Mrs. Williams on the ground of undue influence. April 17, 1905, Michael Gr. O’Brien, who had appealed from the order of the probate court, filed a cross-bill averring the same facts as the bill and asking the same relief. Demurrers were interposed on the theory that the suit was not brought within one year front the time of the probate of the will in the county court, as was required by statute. The demurrers were sustained, the bill dismissed and the heirs appealed to the Supreme Court, which reversed the decree pointing out that a chancery court independently of the statute was without jurisdiction to entertain a bill to contest a will, and that the probate of this will was not final and complete until the certified copy of the order of the circuit court had been filed in the county court; further, that the bill to contest was, therefore, filed within the statutory time. The opinion goes on to say that if the appeal to the circuit court had resulted in an order refusing to admit the will to probate, and this order upon appeal to the Supreme Court had been affirmed, there would have been no reason to file a bill to contest the will. It is true this case shows that a contestant has two remedies, but also that the remedies are neither necessarily concurrent nor equally effectual.

The precise question for decision here under the facts is, whether the executor and beneficiary under a prior will (the later will having been admitted to probate while the first has not) in a case where the beneficiary and executor of the first will have filed a bill in chancery to contest the last will (which bill, after a hearing, has been dismissed for the reason that the first will in order of time had been destroyed by the testator with intention to revoke it) has an interest which will permit him to maintain an appeal to the circuit court from an order admitting the last will in order of time to probate.

The cases are all to the effect that the interest which will confer the right of appeal must be a direct as distinguished from an indirect interest. Glos v. Glos, 341 Ill. 447. Voliva, overseer, clearly has no direct interest in the Tennon will. He is not named in it, and he is neither heir nor next of kin.

He relies on Adams v. First M. E. Church of Irving Park, 251 Ill. 268; Connelly v. Sullivan, 50 Ill. App. 627 and Quirk v. Pierson, 287 Ill. 176. In the Adams ease the probate court had admitted one will to probate and denied probate to the other. There was, therefore, a clear issue as to which was the true will of the deceased. There was no such issue here at the time Voliva perfected his appeal from the order of the probate court nor since. He never pressed to a decision in the probate court the question as to which of the two was the true will of the deceased. He has failed to show (in the probate court, which had jurisdiction) that he has any interest at all. In the chancery suit in the circuit court he has tried out the question of whether he has an interest, and a decree has been entered finding that he has no such interest.

In the Connelly case the probate court admitted a later will and the executor in the first will which had been admitted to probate was permitted to appeal. In the Quirk case one named as executor in a will which was denied probate was permitted to appeal. These cases are distinguishable.

Manifestly, Voliva was not interested in the Tennon will within the meaning of the statute at the time he took his appeal. The brief attempts to raise the question as to whether the Civil Practice Act is applicable to appeals in the circuit court from the probate court. In so far as the suit in chancery in the circuit court to contest the Tennon will is concerned and the decree entered there, that question cannot now be raised since no appeal was taken from the order entered and it cannot now be attacked collaterally in this proceeding. Stoll v. Gottlieb, 305 U. S. 165. The pleading on the appeal from the probate court was immaterial. Conzet v. Hibben, 272 Ill. 508, 511. We agree that a statute of this kind should be liberally construed to the end that controversies might be settled. Executors undoubtedly have an interest in a will which names them executors, giving them a right to appeal. Conzet v. Hibben, 272 Ill. 508. The Tennon will did not name Yoliva executor or beneficiary. Manifestly, he could easily have secured an order either admitting to probate or denying probate to the Yoliva will which named him as executor, and from such an order he could have appealed to the circuit court and tried out the issue of which was the will of Mrs. Hills. He did not do this. The circuit court was, therefore, without jurisdiction of his appeal, and it was properly dismissed.

Affirmed.

O’Connor and McSurely, JJ., concur.


text:
    Willard L. Lauer, Administrator of Estate of Ella L. Lauer, Deceased, Appellee, v. Elgin, Joliet and Eastern Railway Company, Appellant.
    Gen. No. 40,919.

      Heard in the first division of this court for the first district at the October term, 1939.
    Opinion filed May 20, 1940.
    Knapp, Allen & Cushing, of Chicago, for appellant; Joseph L. Earlywine, Harlan L. Hackbert and R. Newton Rooks, all of Chicago, of counsel.
    Krohn & MacDonald and Charles J. Mueller, all of Chicago, for appellee; Stuart B. Krohn and Ian P. MacDonald, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

In an action under the statute by the administrator for alleged negligence resulting in the death of Ella L. Lauer, on trial by jury, there was a verdict of guilty with damages assessed at $4,000, upon which the court overruling motions for a new trial and for judgment non obstante veredicto entered final judgment for plaintiff, from which defendant appeals.

It is urged for reversal that defendant was not guilty of wilful and wanton misconduct as charged in the complaint, and was not negligent; that deceased was guilty of contributory negligence barring recovery, and that the verdict is excessive.

The evidence tends to show that November 20, 1937, Willard L. Lauer with his wife Ella L. Lauer, who lived in Chicago Heights in Cook county, while riding south in an Oldsmobile automobile on Euclid avenue, a public highway running in a north and south direction, and at a place where the avenue is intersected by defendant’s railway, running east and west, were struck by a train of defendant’s cars and received injuries from which both were immediately rendered unconscious and shortly afterward died. This suit was brought by the administrator of Mrs. Lauer. The administrator of Mr. Lauer brought a similar suit and recovered a judgment for $7,500, from which an appeal Lauer v. Elgin, J. & E. Ry. Co., 305 Ill. App. 487 (Abst.) is now pending in this court, in which we today filed an opinion.

Mrs. Lauer at the time of her death was 44 years of age. She and her husband had one son, Willard, who survives and is the administrator. The accident in which these two lost their lives occurred November 20, 1937, at about 8:00 p.m. They were riding in an Oldsmobile automobile, which Mr. Lauer was driving. Euclid avenue was paved. It was crossed at right angles by defendant’s right of way on which there are six tracks 71 feet wide from the northernmost to the southernmost rail. Pictures are in evidence showing the situation at the crossing at the time of the accident. On the west side of the street, 6 feet north of the northernmost track and 23 feet to the west of the west line of the avenue, was a small shanty used by a flagman. Fifty feet to the west of this was a small latrine building. Thirteen feet north of the northerly track and 5 feet west of the street was a crossarm bearing the words “Railway Crossing.” About 150 feet north of the track was a round sign bearing the letters “R. R.” Thirteen feet north of the crossing and 5 feet east of the highway was a street light. This was the only light within 200 feet of the crossing. Euclid avenue was designated as a through street by the proper authorities. Stop signs were posted at every intersecting street. There was no light of any kind on the crossing or on the west side of the street. The pavement of Euclid avenue was 24 feet wide at this place. The trains of defendant ran over the two inner tracks. The outside tracks were used for storage purposes. West of the flagman’s shanty was a stone and wire fence. There was evidence from which the jury might believe that on the night of the accident a train of railroad cars was standing on the north track to the west of the crossing. If this was true, these would tend to obscure the vision of travelers approaching from the north. The flagman was not on duty at this time. There was no wigwag or moving signal of any kind maintained by defendant at the crossing. There was no light in the cross-arms and no light on the crossing at all so far as the railroad was concerned. The only artificial light was the one already described on the east side of the avenue. There had been snow in the morning and the pavement was slippery.

Herndon, the rear brakeman, who was the only occurrence witness and who was called to testify by both plaintiff and defendant, said the moon was shining, but other evidence indicated it was dark at the time. Herndon had been employed by defendant for about 22 years. The crew in charge of defendant’s train consisted of Herndon, another brakeman, a conductor, an engineer and a fireman. The train consisted of about eight cars which had been picked up at Joliet. The car farthest to the east in the train was a gondola oar, and the engine was pushing this and the seven other cars east across the intersection. Herndon says he was sitting on the southeast corner of the gondola car, which he thinks was empty. He had an electric lantern such as he used in giving signals to the engineer and others of the crew. There was no other light on the gondola. He was on the top, about 10 or 12 feet from the ground. The engine which was pushing the train of cars had electric headlights in front and also an electric headlight on (the rear. It was a road type of engine. The crew had run around other cars right west of the crossing so as to get these particular cars ahead of them and deliver the same to the C. & E. I., which was about three-quarters of a mile east of where the accident happened. There was a box car in the train which was higher than the gondola. The other brakeman on the train rode on the car just behind the gondola. These cars were from 40 to 50 feet in length, so the front end of the engine which was pushing from the rear was about 400 feet from'where Herndon was riding. The train was moving on the fourth track from the north. Herndon says that it was moving about 8 or 10 miles an hour. He first saw the automobile coming south at a speed of about 25 miles an hour when the front end of his train was about 150 feet west from the crossing. The automobile, he says, was then 300 to 400 feet to the north. The headlights of the automobile were lighted. He says the whistle of the train was blowing. He heard the whistle and saw the automobile practically at the same time. When about 50 to 75 feet from the crossing he swung his lantern out across it as far as he could reach out from the car, leaning forward. He swung it east and west in the same direction the train was going. He did not get down from the car onto the ground, and no one was on the ground signaling. The lantern was an electric with two bulbs. It was produced in this court on oral argument. Each bulb is about one-quarter of an inch in diameter. Only one of these was lighted. When the train was about 12 feet from the crossing he gave the first signal to the engineer. The automobile did not stop. He felt the engineer apply the air brakes and the train stopped about 120 to 130 feet from the point at which he gave the signal. ' The drawbar or coupling of the gondola car' hit the automobile right in the center and carried it over the crossing. The occupants were rendered unconscious and died shortly thereafter.

Defendant argues in the first place that there was no evidence to sustain the charge of wilful and wanton misconduct as stated in the complaint. There was no motion, however, by defendant for a ruling in its favor on this particular charge. Two instructions for plaintiff (Nos. 3 and 9) and one (No. 8) were given at the request of defendant that no recovery could be had unless deceased was in the exercise of due care for her own safety. These instructions eliminated the wilful and wanton charge, and no instruction was given on the wilful and wanton theory.

Defendant again contends that there was no evidence tending to prove the negligence of defendant with reference to the maintenance of the crossing. It points out that there was no statutory duty to keep a flagman at the crossing or to adopt and use mechanical devices often used to warn travelers of such dangers, citing Opp v. Pryor, 294 Ill. 538; Willett v. Baltimore & Ohio Southwestern R. Go., 284 Ill. App. 307, 310; Goodman v. Chicago & Eastern Illinois Ry. Co., 248 Ill. App. 128. It is argued that there were no unusual duties in this respect in the absence of a statute or order of the public utility commission. The law as applied in the cases is well stated in Opp. v. Pryor, 294 Ill. 538: “There was therefore no statutory duty to maintain a watchman or gates at the crossing, and neither by custom nor judicial decision has it ever been held that it is the general duty of railroad companies to maintain watchmen or gates at public crossings. There is a common law duty to exercise such care and use such precautions as will enable the traveler on the highway, if he exercises ordinary care, to ascertain in the night time the approach of an engine backing cars over a street crossing. There may be special conditions creating special dangers that might require a watchman or gates at a street crossing, as in the case of such crossing in a populous city in constant use by the public, but there was neither allegation nor proof of any such condition at this crossing in a residence neighborhood, so that no cause of action was proved under the third count. ’ ’

The complaint here did allege an unusual situation and duties growing out of these. We have described the situation that existed at the crossing. Apparently it was such that the railroad recognized the duty of keeping a flagman there in the daytime for the purpose of warning travelers. Whether a flagman should not have been kept there at least during a part of the night was under all the circumstances a question for the jury. We think the jury could reasonably find that there were special dangers here and special conditions. The fact that this was a through street and that the tracks were six in number (some of them used for storage purposes) tended very much to increase the danger to travelers. These unusual facts distinguish this case from all the others cited and made it a question for the jury to decide as to the precautions necessary in the exercise of due care. The precautions should, of course, be commensurate with the dangers and the risks.

We think, too, it was a question for the jury whether the particular operations of the train were negligent under all the circumstances.

The controlling question in the case, as it seems to us, is whether the jury could reasonably find that Mrs. Lauer before and at the time of the accident was in the exercise of due care. The evidence shows Mr. Lauer was driving the automobile and that Mrs. Lauer was riding on the right-hand side as they approached the crossing. This was the side from which the train approached. The Lauer family had lived in the vicinity of the crossing for 14 or 15 years. Defendant says there is no evidence that she looked or listened or said anything for her own protection, and that finally when the automobile reached the north rail of the north track, if she were using her powers of observation, she must have known she was upon a railroad crossing, when the train of cars was about 40 feet ahead of the automobile and only 10 or 12 feet to the right of the highway (the side on which Mrs. Lauer was riding), and when Herndon was signaling first to the automobile and then to the engineer, there is an entire absence of evidence that she endeavored by word or deed to avoid the accident. Defendant calls attention to the duty of a passenger under such circumstances, as stated in Opp v. Pryor, 294 Ill. 538; Morgan v. Rockford, B. & J. Ry. Co., 251 Ill. App. 127; Goodman v. Chicago & Eastern Illinois Ry. Co., 248 Ill. App. 128. Defendant also calls attention to two recent decisions of the Illinois Supreme Court, Greenwald v. Baltimore & Ohio R. Co., 332 Ill. 627; Provenzano v. Illinois Cent. R. Co., 357 Ill. 192, which are said to point to the same conclusion as these other cases. Defendant points out that since there was an eyewitness to the accident (Herndon) there can be no presumption that Mrs. Lauer was exercising due care. On this point it again cites Goodman v. Chicago & Eastern Illinois Ry. Co., 248 Ill. App. 128, 134. The rule that the inference of due care may be drawn from the natural instinct of self-preservation is not to be applied where there is an eyewitness to the accident, like all other rules of law is subject to reasonable limitations. Herndon saw the accident, but considering all the circumstances he was not in a position to know whether Mrs. Lauer saw the danger or gave warning to her husband of it. The husband’s negligence, if any, could not be imputed to Mrs. Lauer. Thompson v. Atchison, T. & S. F. Ry. Co., 258 Ill. App. 123; Nonn v. Chicago City Ry. Co., 232 Ill. 378.

The jury under all the circumstances had a right to assume that the Lauers were not bent on self-destruction or that they wished to be struck and killed by the approaching train. While the language of the cases may not always be consistent, the general rule seems to be that the question of contributory negligence is for the jury except when the evidence of the existence of that negligence is so clear that reasonable minds could not come to a contrary conclusion. Lannon v. City of Chicago, 159 Ill. App. 595. In Lundquist v. Chicago Rys. Co., 305 Ill. 106, our Supreme Court said (p. 112): “It is only where all reasonable minds agree that a certain state of facts is established that the question can be raised as to whether or not those facts constitute negligence as a matter of law. If reasonable minds differ on what the facts are, the question of negligence is a question of fact for the jury under the instruction of the court as to the law.”

In Peters v. Chicago Rys. Co., 307 Ill. 202, the Supreme Court said (p. 205): “This court can only pass upon the question whether or not there is any evidence in the record which, with all its reasonable inferences, tends to support the cause of action. We cannot weigh the testimony in this class of cases. (Chicago and Eastern Illinois Railroad Co. v. Snedaker, 223 Ill. 395; Chicago City Railway Co. v. Martensen, 198 id. 511.) ” There is a wealth of authority to the effect that this rule is applicable to contributory negligence. Taylor v. Alton & Eastern R. Co., 258 Ill. App. 293; Henry v. Cleveland, C., C. & St. L. Ry. Co., 236 Ill. 219; Elgin, J. & E. R. Co. v Lawlor, 229 Ill. 621; Chicago & Eastern Illinois Ry. Co. v. Beaver, 199 Ill. 34; Coulter v. Illinois Cent. R. Co., 264 Ill. 414; Oswald v. Grand Trunk Western Ry. Co., 283 Ill. App. 86. We hold that the jury could reasonably find Mrs. Lauer, at the time of and before the accident, was in the exercise of due care.

It is urged the damages are excessive. The record does not sustain this contention. There was some evidence of definite pecuniary loss, and Mrs. Lauer was survived by her son, who is the administrator. The law presumes pecuniary loss to a son whose mother has lost her life under circumstances such as are shown here. Dukeman v. Cleveland, C., C. & St. L. R. Co., 237 Ill. 104; Wilcox v. Bierd, 330 Ill. 571. We find no reversible error in the record and the judgment will be affirmed.

Judgment affirmed.

O’Conhor and McSurely, JJ., concur.


text:
    The Employers’ Liability Assurance Corporation, Ltd., Appellee, v. A. A. Electric Company, Appellant.
    Gen. No. 40,943.
    Heard in the first division of this court for the first district at the October term, 1939.
    Opinion filed May 20, 1940.
    Kriebel & Hubbard and Johh J. Sherlock, all of Chicago, for appellant.

      Teller, Levtt, Silvertrust & Levi, of Chicago, for appellee; Leon Silvertrust and H. J. Goldberger, both of Chicago, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

In an action for balance claimed to be due for premium on a workmen’s compensation insurance policy, plaintiff made a motion for summary judgment under section 57 of the Civil Practice Act (Smith-Hurd Ann. Stats., ch. 110, § 181, sec. 57 [Jones Ill. Stats. Ann. 104.057] and §§ 259.15, 259.16, Rules of the Supreme Court). The motion was allowed and judgment entered for $2,281.58, from which defendant appeals. The question for decision is whether the court erred in entering summary judgment.

The facts are as follows: Plaintiff is an insurance company, defendant an electrical construction company, each having an oEce in Chicago. Defendant was under contract to construct some 470 miles of electrical lines underground in two Wisconsin counties. Arthur M. Moysey & Company, insurance brokers in Chicago, through Mr. Leslie Moysey took up with Mr. Moore, an underwriter and special agent in the service of plaintiff company, the matter of procuring for defendant compensation insurance in connection with this work to be done in Wisconsin. Everyone recognized that the Wisconsin law was applicable (Wisconsin Stats. 1937, ch. 205.01-20). The statute provides that the insurance compensation law shall be administered and enforced by the insurance commissioner, who (205.07) shall approve a minimum adequate pure premium for each classification under which workmen’s compensation is written. Chapter 205.09 provides that no classification for such insurance shall be effective until approved by the commissioner, and no rules or regulations as to compensation risks filed by any company or by the Bating and Inspection Bureau (created under 205.12-24) shall be effective until approved by the commissioner. Chapter 205.11 provides for court review upon complaint of any person having a direct interest.

Mr. Leslie Moysey, of Arthur M. Moysey & Company, took up with Mr. Moore of plaintiff company the matter of the proper classification of the risk in connection with this work to be done in Wisconsin. At his suggestion, on June 15, 1936, Moore wrote to the Wis-' cousin Compensation Eating and Inspection Bureau inquiring as to the code classification which would be applicable. The bureau replied it could not at that time act upon his correspondence because plaintiff was not then '‘the carrier of record” of the risk. December 17, 1936, Moore advised Mr. Moysey that he was preparing a policy for this kind of insurance with the understanding that the classification used was subject to the approval of the Wisconsin bureau, and that he was forwarding the same to the bureau expecting it to be disapproved both as to date and classification. An extended correspondence between plaintiff and the bureau was conducted by Mr. Moore, and this correspondence is attached to his affidavit submitted in support of the motion for summary judgment. The correspondence shows that with the knowledge of Mr. Moysey and using facts as to the nature of defendant’s operations in Wisconsin, which were obtained from Mr. Moysey, Moore endeavored to persuade the Wisconsin bureau to accept code No. 7601 instead of code No. 7538 as the proper classification of defendant’s operations. The bureau refused to do this.

December 22, 1936, plaintiff issued to defendant its standard workmen’s compensation and employers’ liability policy covering defendant’s operations in Wisconsin. The policy stated that it was to be in full force and effect from December 22,1936 to December 22,1937. The policy was No. WC-704227. By its terms, as required by the Wisconsin law, the amount of premium to be paid was based on the two factors of (1) the classification of the risk, and (2) the total amount of the payroll. The policy provided the classification should be under code No. 7601, on which the rate was $5.37 per $100 of the payroll. The actual payroll expenditure of defendant as established by an audit amounted to $59,-261.93, making the premium (computed under code No. 7601) $3,182.37. This amount was determined and this sum was paid to plaintiff by defendant’s check after the expiration of the policy, and the check was received and indorsed as payment in full.

When the policy was issued December 22,1936, it contained an indorsement No. 1, which expressly provided that it was ‘ ‘understood and agreed that the rates shown on the Schedule of Policy to which this endorsement is attached, as respects the State of Wisconsin, are subject to change. In the event revisions in rates are promulgated, said rates shall be effective the date specified by the Wisconsin Authorities.”

Clause “C” of the policy made provision for inspection of the assured’s plant, works, machinery and books during the policy period and for one year after its final expiration. The policy expressly provided it was issued with the agreement that premium rates were subject to changes “to the extent that such changes are approved or required by the Commissioner of Insurance in accordance with law by reason of (1) any change in the benefit provision of the above cited Compensation Law which becomes effective during the Policy Period, or (2) any revision of manual rates which becomes effective and applicable during the Policy Period, or (3) the promulgation of adjusted rates by the Wisconsin Compensation Rating and Inspection Bureau in accordance with rating plans so approved. Such changes shall become applicable from and after the date specified by the rate making authority. The provisions of this paragraph shall apply to rates expressed in this Policy or any endorsement attached thereto. Such changes, if any, are to be expressed by further endorsement naming the effective date thereof.”

April 26,1937, the Wisconsin authorities gave a “notice of error” effective as of December 22, 1936, the date upon which the policy was issued. By this notice of error plaintiff was ordered to eliminate code No. 7601 and substitute code No. 7538. Under code No. 7538 the rate was $9.22 per $100 of the payroll and computed at this rate there was an unpaid balance of $2,281.58 due for premium. For this balance with interest from November 28, 1938, the date upon which defendant admitted it had notice, the court rendered judgment, making a total sum of $2,300.60.

Although admitting the classification at the time the policy was issued was merely tentative, it is now contended in behalf of defendant that the classification of the risk could not be changed after the policy had expired and after a final settlement of the premium due had been made. It is urged in this connection that notice to Moysey & Company (the brokers who sold the insurance policy to defendant) of a change in classification was not notice to defendant, the broker not being the agent of the assured for the purpose of accepting notice. The correspondence shows, as a matter of fact, that the letters of Moore to the Wisconsin bureau urging a different classification were made from information as to the nature of the work to be done by defendant, which was furnished by the broker, so that, as a matter of fact, it appears the broker did act as defendant’s agent in this respect. Moreover, in construing the law and the contract made thereunder, the main purpose of the law must be kept in view. It is to provide a fund by which injured workmen may receive compensation, and this fund cannot be provided without the collection of an adequate premium on policies issued. We hold, therefore, that neither the expiration of the policy nor the fact that a final settlement had been made for the premium provided for by the policy is determinative or controlling, and that plaintiff was not estopped to change the classification of the risk. Employers’ Liability Assur. Corp., Ltd., of London v. Success-Uncle Sam Cone Co., 208 N. Y. S. 510; Manufacturers Cas. Ins. Co. v. Daison Mfg. Co., Inc., 16 Pa. D. & C. 803; State Workmen’s Ins. Fund v. Pitt Lumber Co., Inc., 9 Pa. D. & C. 784. The reasons are well stated in 208 N. Y. S. 510, above cited:

‘‘ Any other conclusion would nullify the whole theory under which the Workmen’s Compensation insurance rates are regulated by the state. It would result in a practice of private rate fixing in conflict with the provision of the State Insurance Law. It would render ineffective the language of the Statute that classifications of risk and premiums relating thereto shall not take effect until they have been approved by the superintendent of insurance. It would encourage a system of rebates and discriminations that would tend to undermine the entire structure of rate-making.”

It is urged and one of the affidavits alleges as a conclusion that the classification as made was unreasonable, arbitrary and discriminatory and, therefore, could not legally be made. It is said that in this respect there was an issue of fact which should have been tried. This Wisconsin statute already cited (205.11) provided defendant’s remedy if this was true. Defendant did not avail itself of the opportunity to have this wrong-righted if it existed. This being- the case, it cannot now raise that question in a suit brought upon the policy in an Illinois court. To permit this would obstruct and defeat the purpose for which the statute was enacted.

It is also urged that the change of classification was inoperative because the indorsements did not properly designate the date of it. We do not think the indorsement is ambiguous.

The affidavits fail to disclose any defense to the suit and fail to raise any issue of fact. The court did not err in entering- summary judgment. Diversey Liquidat ing Corp. v. Neunkirchen, 370 Ill. 523. The judgment will be affirmed.

Judgment affirmed.

O’Connor and McSurely, JJ., concur.


text:
    Walter Behrens, Appellant, v. The First National Bank of Chicago et al., Appellees.
    Gen. No. 40,980.
    Opinion filed May 20, 1940.
    Rehearing denied June 5, 1940.
    Arthur F. McCormick, of Chicago, for appellant; Ode L. Rankin, of Chicago, of counsel.

      Winston, Strawn & Shaw, of Chicago, for certain appellee; Walter H. Jacobs, of Chicago, of counsel.
    Campbell, Clark & Miller, of Chicago, for certain other appellees; Charles V. Clark, Frederick D. Carroll and Frank B. Gilmer, all of Chicago, of counsel.
    Slottow & Leviton, of Chicago, for certain other appellee; Joseph G. Slottow and Harold P. Shane, both of Chicago, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Behrens, on March 7,1938, filed his bill of complaint against the First National Bank, the National Security Bank, Arnold E. Christiansen et al., and also against Mary Dammann, as executrix of the estate of Gustav Dammann. Motions of defendants to strike were twice sustained and amendments filed. To the complaint as amended defendants again filed a motion to strike, which on March 31, 1939, was sustained and the complaint dismissed. Mary Dammann, as executrix, made a motion to dismiss supported by an affidavit (to which no counter-affidavit was filed) in which she set up that the action as to her was barred in that it was not begun within one year from the date of the issuance of letters of administration to her. It is not argued that the court erred in dismissing the complaint as against her. The question for decision is whether the court erred in dismissing the complaint as amended against other defendants.

In the complaint plaintiff describes himself as a stockholder in one of two banks doing business in Chicago: namely, the Security Bank of Chicago and the Second Security Bank of Chicago, both of which were carrying on a general banking business on March 13, 1933. At that time, the Second Security Bank had outstanding capital stock of 3,500 shares, $100 per share par value, each and all of which were owned and held by the Security Bank of Chicago. The Security Bank of Chicago had outstanding 7,000 shares of capital stock of like par value, and of this stock plaintiff (the bill avers) was and is the owner of 3 shares. The Security Bank had about 3,500 depositors owning deposits of about $2,000,000. The Second Security Bank had 2,500 depositors, having deposits of about $1,000,000. Both banks had other assets. The place of business of the Security Bank was 767 Milwaukee avenue in Chicago, and the Second Security Bank’s place of business was 1965 1ST. Milwaukee avenue.

March 13, 1933, the officers of these banks, upon authority given by their boards of directors, entered into a contract with defendant, First National Bank. The Security Bank by its contract acknowledged an indebtedness to the First National of $1,141,704.08, which it promised and agreed to pay with interest. The Second Security Bank by its contract admitted an indebtedness to the First National of $825,000 which it also promised to pay. By each contract the respective banks conveyed to the First National all its property of every kind and nature as collateral from the proceeds of which it was agreed that this indebtedness to the First National Bank should be paid. In each case the First National also agreed to advance sufficient money to pay off the depositors in full, and any surplus which might remain was to be turned over to the respective banks.

The original complaint by way of conclusion made many averments as to the contents of these contracts which also conveyed certain real estate of each of the banks to Charles V. Clark, in trust for the benefit of the First National Bank. No copies of the contracts were attached to the bill of complaint. The complaint said plaintiff did not have the contracts, but that defendants knew all about them. There was no allegation that any request had been made to see the contracts nor fact alleged showing diligence to obtain them. The bill said plaintiff did not know of the facts alleged until informed by a letter from Norman B. Collins, dated February 17,1938.

The bill avers by way of conclusion that these contracts are invalid, illegal and void; that the same are fraudulent as to the stockholders, in behalf of all of whom plaintiff files his complaint. The bill prays that the contracts be decreed to be void; that there should be an accounting, a reassignment and reconveyance of the property conveyed, etc., and also for alternative relief.

May 16, solicitors for the First National Bank tendered to plaintiff in open court copies of the contracts, and plaintiff was given 30 days to amend his complaint. June 15, he filed an amendment attaching to the complaint these copies of the contracts, but stating he had not had an opportunity to compare the same with the originals, and that he did not know whether the copies were true. The contracts are identical in form and substance. The only difference between them is that the name Security Bank of Chicago is in one, and Second Security Bank of Chicago in the other. Each of the contracts consists of 17 paragraphs; recites the debt of the bank to the First National, the sale, assignment and conveyance to the First National Bank of all the assets of the other bank (excluding leasehold estates and not including assets held in a fiduciary capacity), as collateral to be used in payment of the indebtedness to the First National; that the other bank shall not thereafter, without consent in writing of the First National Bank, dissolve or go into liquidation and that it will not thereafter accept or receive deposits nor voluntarily incur any liabilities.

The preamble recites that the Security Bank has deposit liabilities for which it will be necessary to borrow additional money, and that it has requested the First National Bank to loan the additional money to the extent necessary to pay its deposit liabilities in full, and that these assets shall also stand as collateral security for this additional money.

We take judicial notice of the fact that at the time these contracts were entered into, by proclamation of the President of the United States and of the Governor of Illinois, every bank in this State was closed. It is the gist of the contention of plaintiff that since banks are .quasi-public institutions which are subject to the provisions of the statute, these contracts were invalid and illegal in that they provided for the liquidation and dissolution of the banks in a manner not provided for by the statute (Ill. Rev. Stat. 1939, ch. 16%, § 15 [Jones Ill. Stats. Ann. 10.16] as amended). The plaintiff relies upon two cases, which, he argues, are controlling. Continental Ill. Nat. Bank & Trust Co. of Chicago v. Peoples Trust & Savings Bank of Chicago, 366 Ill. 366; People ex rel. Nelson v. Wiersema State Bank, 361 Ill. 75.

Section 15 of the Banking Act in substance provides two méthods by which a banking corporation may be dissolved. The bank may deposit with the auditor of public accounts an amount of money equal to the whole amount of debts and demands against it, including expenses of the proceeding, and make distribution under the direction of the auditor of public accounts, or it may make a contract which must be approved by the auditor by which another bank or banking corporation of this State or the United States shall assume the whole amounts of such debts and demands against it. In such case a copy of the contract must be deposited with the auditor and upon so doing it may determine its affairs and distribute its assets, resign its charter and close up its business by resolution of its stockholders. The statute provides for publication to be made to those interested, etc. The contract challenged in the Continental case in substance provided for dissolution without complying with these provisions of the statute, and at the suit of the Continental Bank the contract was held illegal ultra vires and unenforceable for that reason. Plaintiff says the contracts here challenged are in substance similar contracts which provided for the dissolution of these banks; that the same were not approved by the auditor or filed with him in conformity with the statute; and that for this reason they also should be held to be illegal and void.

The contracts here challenged, however, are not, as we read them, contracts for the liquidation and dissolution of the corporations, similar to .the contract in the Continental case, and plaintiff cannot maintain this suit on this theory for several reasons. The contracts here questioned are essentially different from the contract there held void, in that while that contract was in essence one for liquidation and dissolution of the corporation these are in essence for the borrowing of money to pay to the depositors that which is due to them. Many banks whose affairs have been brought before us for consideration would have been most fortunate if they could have obtained similar help upon the same terms. The contract in the Continental case expressly assumed the obligations of the other bank. On the contrary, these contracts expressly provided: ‘ ‘ The First National does not assume, and shall not be deemed by anything in this agreement contained, or otherwise, to have assumed, any liability or obligation of the Security Bank, of any kind, nature or description whatsoever.” The contract in the Continental case resulted in closing the bank whose assets were sold and assigned. These two banks were already closed at the time of the execution of the contracts by proclamation of the President of the United States and the Governor of Illinois. We believe it has never been held by any court of this State that a contract of a bank by which it is enabled to borrow money through the pledge of collateral in order to pay its depositors is illegal and contrary to public policy. The contracts ’here expressly indicate that it was the intention of the parties that the conveying banks should not be dissolved or liquidated. One paragraph of the contract is: “The Security Bank will not, without the consent in writing of the First National, voluntarily dissolve or go into liquidation. The Security Bank will not, from and after the date hereof, accept or receive any deposits and will not voluntarily incur any liabilities whatsoever, except with the consent of the First National.” It is quite true that this provision requires the cessation by the borrowing banks of a banking business, but the complaint, which must be construed most strongly against plaintiff, does not allege that the borrowing banks, or any one of them, was solvent, and if they were insolvent, it would not only be illegal but criminal for their officers with knowledge to receive deposits.

Not only is this suit distinguishable from the Continental case with respect to the nature of the contract entered into but also with respect to the plaintiff who brings the suit. In the Continental case the suit to set aside the contract was brought by the Continental Bank, itself, the loaning corporation. It was a party to the contract and it was a creditor of the other bank. This suit is by a mere stockholder who is without any right whatever to represent other stockholders and who has made no demands on either the bank in which he holds stock, its officers or directors, or other stockholders, to bring suit in behalf of himself and others. The Continental suit, unlike this, was to enforce the stockholders’ statutory and constitutional liability. Moreover, the complaint does not offer to do equity. The complaint shows that the transfer of assets were made as collateral security for liabilities of nearly $2,000,000. Plaintiff does not offer to pay these, and the facts as stated by the complaint show he knew, or ought to have known, that the bank in which he held stock was closed, and that the slightest diligence on his part would have given full knowledge at the time of the execution of the contracts of their provisions. The bill shows that he waited only a few days less than five years without inquiry and without protest. During all that time he held these three shares of stock, representing a negligible interest in the corporation. He watched and waited while others put their shoulders to the wheel. Now, after all this time, he seeks on a bare legal technicality to overturn everything that has been done. His laches prevents.

The rule of ultra vires is not intended as a license for commercial piracy. Plaintiff is without standing in a court of equity. The decree will be affirmed.

Decree affirmed.

O’Connor and McSurely, JJ., concur.


author: Mr. Justice McSurely

text:
    Virginia Milner Thorne (Also Known as Virginia Milner), Appellant, v. Continental National Bank and Trust Company of Chicago et al., Appellees.
    Gen. No. 40,808.

      Heard in the first division of this court for the first district at the October term, 1939.
    Opinion filed May 20, 1940.
    Bernard W. Vinissky, of Chicago, for appellant.
    Markheim, Parker & Miller and Barry & Crowley, all of Chicago, for certain appellees; A. R. Miller and Jerome J. Crowley, of counsel.
    Gerald R. Gorman, of Chicago, for certain other appellee.
    William R. Swissler, of Chicago, for certain other appellee.
    John E. Cassidy, Attorney General; Jerome F. Dixon, Assistant Attorney General, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This case involves the validity of a provision in the will of Gordon C. Thorne attempting to establish a charitable trust. The trial court held this provision void as in violation of the rule against perpetuities, ch. 30, par. 153, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 135.02],

The Attorney General of the State appears in this court to support this provision of the will and is a proper party for this purpose. Attorney General v. Newberry Library, 150 Ill. 229,236; People v. Braucher, 258 Ill. 604, 608. The individual beneficiaries Marion Thorne, the widow of Gordon C. Thorne, and his minor son, Montgomery Ward Thorne, seek to sustain the trial court. Virginia Milner Thorne, plaintiff appellant has by stipulation been dismissed from the cause, without prejudice to the right of the Attorney General to appeal.

Leading up to the sole issue in the case it should be noted that in 1921, Katharine C. Camp executed three trust indentures, with the Continental Bank as trustee; in two of these trusts she provided that the income of the trust property should be paid to her son Gordon C. Thorne for his life, and upon his death the remainder should be delivered as he might provide in his last will; in the third trust Mrs. Camp reserved the entire net income to herself for life and upon her death the income, subject to certain annuities, should be paid-to her son Gordon C. Thorne during his natural life and upon his death should be paid as he might provide in his last will.

Katharine C. Camp died January 4, 1930, and thereafter Gordon C. Thorne received the income of all three trusts until his death January 28, 1938; he left a last will and codicil in which he attempted to exercise the powers of appointment vested in him by the abovedes.cribed trust indenture. By this will he provided, among other things, that the trust funds remaining after the payment of certain legacies should go to the Continental National Bank and Trust Company as trustee, with a life estate in one-half the income to his widow Marion Thorne and the other one-half to his minor son, Montgomery Ward Thorne, who was born October 17, 1933, more than 12 years after the execution of the last Katharine C. Camp trust.

The appellees assert that the only paragraph of the will involved in this proceeding is tenth (b), as it is the only paragraph in which the charitable bequests represented by the Attorney General are mentioned.. This provides that if after the date of the death of both the testator’s wife and son the testator should have no lawful descendants surviving him, nor any possibility that such may thereafter be born, the trust should immediately terminate and the trust estate should be paid over absolutely as the survivor of his wife and son, in and by his or her last will and testament, may appoint, provided, however, that the survivor should appoint at least three-fourths of the trust estate for charitable purposes. In the event of the failure of the survivor to exercise such power of appointment the entire corpus of the trust estate shall be paid to the trustee to be used for charitable purposes.

Virginia Milner Thorne filed her complaint in the circuit court seeking to subject the estate funds to the payment of creditors of Gordon C. Thorne; the Continental Bank, as trustee, filed a counterclaim asking for a construction of the will of Gordon C. Thorne and raised the question, among others, as to whether paragraph tenth (b) did not violate the rule against perpetuities, which forbids the disposition of any property for longer than the term of 21 years from the death of such settlor; that under this paragraph the distribution of the trust estate might be postponed until the death of Montgomery Ward Thorne, who was not in being at the time the Katharine C. Camp trusts were executed and who might die more than 21 years after any life in being at the time of such execution. The trial court was in accord with this view and held that this paragraph was void, since the vesting of the remainder of the property is contingent on a life not in being at the time of the execution of the trust which created the power of appointment, thus violating the rule against perpetuities, citing Northern Trust Co. v. Porter, 368 Ill. 256. In that case the Supreme Court discussed the divergent views as to when the period of the rule must be computed. The court said that the great weight of American decisions supports the view that the period of perpetuities begins to run from the date of creation of a general testamentary power. The opinion discussed the question at length and concluded that the period of the rule must be computed from the time of the creation by the donor, which in the instant case would mean the creation of the trusts by Katharine C. Camp, which was more than 12 years before the birth of Montgomery Ward Thorne.

In Easton v. Hall, 323 Ill. 397, is a full discussion of the rule relating to perpetuities. At p. 408 the opinion says:

“The rule against perpetuities is, ‘that no interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.’ (Gray’s Rule Against Perpetuities, sec. 201.) If the provisions of a will are such that under them a violation of the rule against perpetuities may possibly happen, then the devise of interests dependent upon such provisions is void. The time fixed by this will for the distribution of the funds of the trusty and its payment to the ultimate takers of the property of the estate was at the death of the last survivor of the beneficiaries of the trust for whom annuities were provided. If that time may possibly be more than twenty-one years after the death of the testatrix it is too remote for the gift over to be valid. ... The improbability of its occurrence after the prescribed time is immaterial. If it can possibly happen after that time an interest conditioned upon it is too remote. (Gray’s Rule Against Perpetuities, sec. 214; Tiffany on Real Prop. sec. 180.) ”

The Attorney General says that the will must be read as a whole and that paragraph tenth (a) must be read in connection with paragraph tenth (b), which gives alternative contingencies, and where a will limits a future estate upon alternative contingencies, one of which violates the rule against perpetuities and the other does not, the limitation will be upheld if the valid contingency occurs.

The general statement of the law relating to alternative contingencies is found in 48 Corpus Juris 945:

“b. Alternative Contingencies. When a future interest or estate is limited upon alternative contingencies, one of which must occur, if ever, within the period specified by the rule against perpetuities, and the other will or may occur after the expiration of such period, the limitation is not to be held invalid pending the determination of the event, and it will take effect or not according to the happening or non-happening of the former contingency.
“Double Contingency Distinguished. The principle hereinabove stated can be applied, however, only where contingencies are stated in the alternative by the instrument creating the interest or estate; and where a limitation is upon one contingency, although depending upon a twofold event, the court will not split it up into two contingencies, one good and one bad, so as to give effect to the limitation on the ground that the good contingency has taken place,...”

Appellees argue that where the alternative contingencies have not been expressly separated by the language of the will, the court will not make the separation for the testator, and that in the instant case the alternative contingencies have not been expressly separated by the language of the will.

Paragraph tenth (a), which is cited by the Attorney Gfeneral as containing one of the alternative contingencies, provides that—

“The Principal Trust Fund and Individual Trust Fund hereinabove created shall terminate twenty-one (21) years after the date of the death of my beloved wife, Marion Thorne, or my son, Montgomery Ward Thorne, whichever shall occur second, at which time the corpus of said trust estates shall be divided equally among my lawful descendants, per stirpes and not per capita.” It should be noted that the contingency there stated is, after the death of the wife or the testator’s son, “whichever shall occur second.”

We find nothing in this paragraph relating to a devise for charitable purposes. This paragraph contemplates the event of the testator having “lawful descendants,” who shall divide the corpus of the estate upon the death of the survivor, either the widow or the son, 21 years after the date of such death.

Paragraph tenth (b) is predicated upon different conditions, namely, the death of both the wife and the son, and that no lawful descendants of the testator survive him, “nor shall there be a possibility that such lawful descendant or descendants may be thereafter born,” in which event the trust shall terminate immediately, “even though twenty-one (21) years shall not have elapsed since the date of the death of the survivor.” Under such circumstances the trust should be paid over as the survivor of the wife and son shall appoint, provided that three-fourths of the corpus of the trust estate shall be used for charitable purposes.

The opinion in the Easton case, supra (p. 410, 411) discusses the situation where ‘ ‘ an event which may occur beyond the legal period will not be separated by the court into two gifts, one in case the event occurs within the period and the other in case it occurs afterward, and upheld as to the former. The happening of the event within the time required by the rule does not render the limitation over valid unless the donor or testator expressly so"provides. ’ ’ The opinion discusses the cases of Quinlan v. Wickman, 233 Ill. 39, and Moroney v. Haas, 277 Ill. 467, cited by the Attorney General, where it was held that in each of those cases the testatrix expressly separated the gifts over into two gifts. In the Easton case it was held that the testatrix violated the rule against perpetuities because it was conditioned “after the death of all the beneficiaries,” one of whom might be the widow of her son and such widow might be a person who was not in being at the time of the death of the testatrix.

Counsel for both parties have discussed at considerable length the opinion in the Easton case, but we fail to see how either in that or any other case cited there can be found any support for the claim of the Attorney General. If paragraph tenth (a) is a valid alternative, we find nothing there which provides for the establishment of a charitable trust. The only provision relating to this is in tenth (b).

The argument seems to be that this paragraph provides in the alternative for the valid contingency of the predecease of Montgomery Ward Thorne to his mother, Marion Thorne. But as we have said, this valid contingency is not expressly separated from the possibility of Montgomery Ward Thorne surviving his mother, in which event the provisions for the charitable trust are invalid.

In the Easton case is a quotation from Miles v. Harford, 12 Ch. D. (Eng.) 691, by the Master of the Bolls, Sir George Jessel, which is applicable to the instant case: “ ‘As I understand the rule of law it is a question of expression. If you have an expression giving over an estate on one event and that event will include another event which itself would be within the limits of perpetuities, or, as I say, the rule against perpetuities, you cannot split the expression so as to say if the event occurs which is within the limit the estate shall go over, although if that event does not occur the gift over is void for remoteness. In other words, you are bound to take the expression as you find it, and if, giving the proper interpretation to that expression, the event may transgress the limit, then the gift over is void. ’ ”

For the reasons indicated we hold that the trial court properly found the provisions for the charities contained in paragraph tenth (b) of the will are void, and its order to this effect if affirmed.

Order affirmed.

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


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    People of the State of Illinois for use of Sam Litvinchuk, Appellee, v. A. A. Fassbender and Western Casualty & Surety Company. Appeal of A. A. Fassbender, Appellant.
    Gen. No. 40,851.
    Heard in the first division of this court for the first district at the October term, 1939.
    Opinion filed May 20, 1940.
    Robert D. Melick, of Chicago, for appellant.
    McFarland, Morgan & Stearns, of Chicago, for appellee ; Leonard W. Stearns, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Sam Litvinehuk, hereafter called plaintiff, brought suit against defendant Fassbender alleging that he unlawfully retained $300 belonging to plaintiff, and that Western Casualty & Surety Company was also liable on its bond given to secure the performance by defendant Fassbender, as police magistrate, of the duties of his office. Upon trial by the court the surety company was found not guilty. Defendant Fassbender was found guilty and judgment against him in favor of plaintiff was entered for $300. Defendant appeals.

Defendant Fassbender is a justice of the peace in the village of Wheeling, Cook county; Anthony Folk had commenced suit against George Kowal who was brought before the justice; plaintiff gave a cash bond of $300 to insure the appearance of Kowal upon the trial. Defendant argues that this was a special bond to secure any judgment which might be rendered against Kowal. The records dispute this interpretation of the purpose of the bond. The return of the constable recites that the $300 was to secure the appearance of Kowal before the justice; also, the receipt signed by defendant indicates that he had received from plaintiff $300 to secure the appearance of Kowal on a certain day to answer the complaint. It is not disputed that Kowal did appear on the day set for his trial. Under these circumstances the money deposited by plaintiff to secure this appearance should have been returned to plaintiff.

If defendant was of the opinion that Folk had some claim on this special bail, proceedings should have been under the statute, which provides that where special bail is given and sufficient property is not found to pay the judgment and costs, “it shall be the duty of the justice of the peace, upon the application of the plaintiff or his agent, to issue a summons against the special bail . . . which process shall be served and return made as in other cases. ’ ’ Ch. 79, par. 31, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 71.027]. This provision of the statute was not followed, but a special execution was issued without notice to plaintiff.

The judgment is affirmed.

Judgment affirmed.

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


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    Ruth Allanson, Appellee, v. R. W. Frieder, Appellant.
    Gen. No. 40,872.
    Heard in the first division of this court for the first district at the October term, 1939.
    Opinion filed May 20, 1940.
    Turner & Turner, of Chicago, for appellant; Maurice Turner, of counsel.
    Kamfner & Halligan, of Chicago, for appellee; Edwin A. Halligan and Samuel M. Lanoff, both of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendant appeals from a judgment for $300 entered upon the verdict of a jury in an action brought by plaintiff alleging that defendant promised, upon a sufficient consideration, to pay her the debt of the Pyratone Products Corporation, of which he was a stockholder, director and officer.

Defendant first argues that the verdict of the jury finding with plaintiff on the question of defendant’s promise to pay, is against the weight of the evidence. It is axiomatic that where the jury and trial judge saw and heard the witnesses testify, they are in a much better position to judge the truth of the matter in controversy than are we, sitting in a court of review. Branch v. Woulfe, 300 Ill. App. 472, and many other cases.

Plaintiff says the evidence supports her claim that defendant personally agreed to pay to her a debt in the sum of $1,000 due and owing from the Pyratone company, in consideration of plaintiff refraining from filing a bill for the appointment of a receiver for the Pyratone company, and also from enjoining a chattel mortgage foreclosure by the First United Finance Corporation, of which defendant was also an officer, director and stockholder.

Plaintiff testified that on May 7, 1934, the Pyratone company was indebted to the Midwest Specialties Corporation and executed and delivered to the Midwest company its five notes, totaling $2,250; the Midwest company was indebted to plaintiff, and to pay this, assigned these notes to her; at the time of this assignment there was a balance due on the notes of $1,250 ; the Pyratone company thereafter made payments to plaintiff on these notes, leaving a balance due on July 12, 1935, in the sum of $1,000. On this day default in payment was made and in the early part of July plaintiff had several conversations with defendant about the payment due; July 28, she learned that the First United Finance Corporation had foreclosed its chattel mortgage on the assets of the Pyratone company and sale was advertised to be held August 1,1935; July 29,1935, she called upon defendant at his office, accompanied by Michael T. Daly, who had been, in 1933 and 1934, president of the Midwest Specialties Corporation; she told defendant she had been advised by her attorney that if the foreclosure proceeding continued she would be squeezed out and that to prevent this she was going to have a receiver of the Pyratone company appointed; that defendant told her “not to get excited and that he would take care of that obligation personally and pay me $125 per month, but in August pay $50 and begin in September with $125 and pay until $1,000 was paid. ” Plaintiff refrained from taking action and the foreclosure sale was held. She later inquired of defendant, asking for her payment, and was told by him ‘ The thing was over.” She received no part of the $1,000.

Daly testified that he was present in the office of defendant in July 1929, and in answer to the inquiry by plaintiff as to what the Pyratone company would do about her notes, was told by defendant that “If you don’t throw the Pyratone company into receivership I will pay. ’ ’

Documentary evidence was introduced showing the notice of the chattel mortgage foreclosure, a report of the sale, the notes executed by Pyratone to the Midwest company and an agreement dated January 16, 1935, wherein the Pyratone company agreed to pay plaintiff in monthly instalments the amounts of its notes held by her which she had received from the Midwest company.

Defendant testified in his own behalf admitting the execution of the chattel mortgage by the Pyratone company to the First United Finance Corporation; that he could not remember what was said by plaintiff at these interviews with him except that she asked for money; that she talked with him several times about getting her money and was the most persistent creditor of the Pyratone company. The witness did not recall that plaintiff had said anything about appointing a receiver for Pyratone. From this evidence the jury was justified in concluding that defendant had promised to pay plaintiff as she had testified. Certainly it cannot be said that this conclusion is against the manifest weight of the evidence.

Defendant next says that forebearance by plaintiff was not good consideration unless she had a reasonable belief that a bill for a receiver would be sustained and the foreclosure of the chattel mortgage could be enjoined. The law is that a waiver by a creditor of his right to have a receiver appointed for a corporation is a sufficient consideration for the promise of an officer, director and stockholder of a corporation to pay the debt of the corporation to the creditor. Ch. 32, sec. 86, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 32.088] provides that where a claim is admitted by the corporation and it is unable to pay its debts, courts of equity have full power to liquidate the assets and business, and section 87 provides that to do this the court has all the ordinary powers of a court of equity to appoint a receiver and take such other proceedings as may be requisite to preserve the corporation assets.

That plaintiff had a claim of $1,000 against the Pyratone company is not disputed. The record also shows that the Pyratone company was unable to pay its debts. Defendant himself testified that he resigned as an officer of the Pyratone company “because it would require a great deal more money to put into to satisfy those other creditors ’ ’; that the company was indebted in the sum of $20,000; the landlord was threatening to evict for nonpayment of rent, and in the latter part of August 1935, the Pyratone company did go into bankruptcy.

In re Estate of Swift, 267 Ill. App. 224 (certiorari denied by the Supreme Court) supports the proposition that the agreement of plaintiff to refrain from instituting' suit for the appointment of a receiver and for injunctive relief constitutes sufficient consideration for defendant to assume the payment of the debt. In the Swift case Joseph A. Swift owed his brother a considerable sum of money, and while so indebted conveyed certain real estate to his wife Katherine; shortly thereafter Joseph died; the brother (claimant) notified Katherine that he was about to take action to have the real estate transferred to her set aside as a fraud upon his rights as a creditor; Katherine thereupon agreed to pay him the amount of his claim if he would refrain from disturbing "her position; this offer was accepted and she made payments to him in accordance with the agreement until she died, leaving a balance due; claim for this was filed in the probate court; it was there allowed; on appeal to the circuit court this was affirmed, and in the appeal to the Appellate Court the point was made that the agreement was without consideration; the opinion in that case considered and distinguished all of the cases cited by the instant defendant in support of this contention and sustained the circuit court in allowing the claim. In Meyer v. Pfahler, 362 Ill. 336, 345, the question was presented whether stockholders or persons financially interested in banks may be held liable for notes made to the bank for the purpose of aiding the bank in its financial difficulties. It was claimed that such notes were not based on a valid consideration, but the Supreme Court overruled this contention, holding that all the signers were interested in maintaining the value of their bank stock, and this constituted a valid consideration. See also Dougherty v. Duckels, 303 Ill. 490, 500. In the instant case defendant was interested, as a stockholder, officer and director, in preventing the receivership of the Pyratone company and also was interested in removing any obstacle to the foreclosure proceedings of the First United Finance Corporation, of which he also was stockholder, director and officer.

Defendant complains the court erred in excluding oral testimony that there were a number of mortgages held by the First United Finance Corporation against the Pyratone company. The record shows only one chattel mortgage, and defendant failed to produce on the trial any other mortgages. As was said in New Staunton Coal Co. v. Industrial Commission, 304 Ill. 613, 616, oral testimony as to contents of a document is not admissible, as the original was not shown to have been lost or not available as evidence.

We see no reason for disturbing the judgment of the trial court, and it is affirmed.

Judgment affirmed.

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