text:
    David K. Tone, Appellee, v. Halsey, Stuart and Company, Inc., Appellant.
    Gen. No. 38,817.

      Opinion filed June 29, 1936.
    Ditchburne & Lounsbury, of Chicago, for appellant ; Charles E. Lounsbury and Philip H. Kelley, of Chicago, of counsel.
    Vincent G. Gallagher, of Chicago, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

David K. Tone, a lawyer and investor, sues defendant, an investment banker, to recover damages alleged to have been sustained by him through relying on false and fraudulent representations by which he was induced to purchase from defendant certain securities of the Middle West Utilities Co. and Corporation Securities Co. Plaintiff filed a declaration in two counts and thereafter by leave additional counts. Defendant filed a plea of the general issue. There was a trial by jury. Plaintiff offered evidence, a part of which was excluded on objection of defendant. At the close of plaintiff’s case, the court on motion of defendant instructed the jury to return a verdict in defendant’s favor. Plaintiff made a motion for a new trial, which the court granted, and defendant by leave of this court appeals.

The motion for a new trial was oral. The record does not disclose the reasons of the trial judge for granting it. Plaintiff contends that under such circumstances a reviewing court will not reverse unless there has been a clear and manifest abuse of discretion.

Prior to the enactment of the Civil Practice Act, an order granting a new trial was not appealable, for the reason that it was held not to be a final order within the meaning of the statute. Section 77 of the Civil Practice Act (Ill. State Bar Stats. 1935, ch. 110, ¶ 205) provides that an order granting a new trial shall be deemed to be a final order but that no appeal shall be allowed “except on leave granted by the reviewing court, or by a judge thereof in vacation within thirty days after the entry of the order, on motion and notice to adverse parties.” No Illinois case construing this provision of the Civil Practice Act is cited, but many decisions of courts where similar statutes have been enacted are cited to the effect that only where the trial court has abused its discretion or proceeded upon some clear or manifest misapprehension of a supposed controlling rule of law, will an order for a new trial be reversed. Even in such cases, decisions indicate courts are reluctant to reverse, and their power to do so is seldom exercised. City of Sedan v. Church, 29 Kan. 190; Roberts v. Southern Pac. Co., 54 Cal. App. 315; Benefiel v. Semper, 185 Iowa 410; Nale v. Herstein, 94 Okla. 263; Cheney v. Roberts, 77 Fla. 324; Hess v. Gusdorff, 274 Pa. St. 123; Buckley v. County of Marin, 25 Cal. App. 577; Hartley v. Ferguson, 46 Wash. 33.

Defendant does not question the soundness of the above rule as applied to the ordinary jury trial where the judge could be of the opinion matters occurred during the trial which might have improperly influenced the jury, but it says that when, as here, the court, at the close of plaintiff’s case, directed a verdict for defendant and granted a new trial without assigning any reason therefor, the only explanation consistent with good faith is either that there was some evidence from which, in the absence of rebutting evidence, the jury might have reasonably found for plaintiff, or that the court erred in refusing to admit offered evidence tending to sustain the allegations of plaintiff’s declaration. Defendant contends that,' assuming all offered evidence had been admitted, plaintiff failed to establish the material allegations of his declaration. The clear-cut question of law, whether the evidence received and offered was sufficient to make out a prima facie case, is therefore presented; in other words, whether the evidence received and excluded under the declaration presented a question of fact for the jury. That question is controlling and should be decided.

The declaration alleged fraud and deceit in two' separate transactions: one in the sale by defendant to plaintiff of certain notes of the Middle West Utilities Co., the other a like sale of certain securities of the Corporation Securities Co. If as to either transaction there was the necessary quantum of evidence, it was error to instruct in favor of defendant, and the court properly granted the motion for a new trial.

The evidence shows without contradiction that in September, 1931, plaintiff purchased from defendant six $1,000 notes of the Middle West Utilities Co., for which he paid the sum of $5,689.69; that in the same month he purchased from defendant two $1,000 notes of the Corporation Securities Co., for which he paid $1,767.50. Plaintiff testified that prior to making these purchases he visited the offices of defendant in the Eookery building in Chicago; that he there had a conversation with Mr. Moore, who testified in this case and who, the evidence shows, at that time held the position of information clerk. Plaintiff says he told Mr. Moore he was about to make an investment in absolutely sound short term securities bearing a low rate of interest, which he expected to hold until maturity, and inquired as to what defendant had of that character to offer; that Mr. Moore replied they had two issues which they had bought themselves' that would answer that description. These were, he said, the Middle West Utilities Co. issue of $50,000,000 in gold notes, maturing $10,000,00 each year, and an issue of $30,000,000 in gold notes of Corporation Securities Co. of Chicago, maturing September 1,1931, each year for five years. Mr. Moore then handed to Mr. Tone a prospectus of the Middle West Utilities Co., a photostatic copy of which is in evidence. Lead pencil figures, which appear on this prospectus, were not there at the time it was handed to Mr. Tone but were later put on by Mr. Moore to indicate the price of the several series of notes. Mr. Tone says he read the prospectus, and Mr. Moore told him the earnings for 1928 and 1929 would show there. Mr. Tone inquired: “How did the earnings of 1930 appear? Does this'depression which we now have adversely affect the Public Utilities the same as everything else?” to which Mr. Moore replied, “No, it does not affect the Public Utilities, not the Middle West anyway.” Mr. Moore also said that the earnings for 1930 were running ahead of the earnings for 1929. Mr. Tone asked him if he had a prospectus showing the 1930 earnings. He replied, “No, we haven’t a prospectus, but we have records.” Mr. Moore also said that defendant had in its possession not only annual reports of the Middle West Co., but frequent reports in addition; that the Middle West Utilities gold notes were underwritten by defendant, which at that time made an examination of its books and records, assets and liabilities, and “we verified all the information I am giving you and which is contained in this prospectus and found it to be correct and true.”

After Mr. Tone inquired about the earnings for 1930, Mr. Moore called a man to get the records on that and asked the man to bring down the 1930 figures on the prospectus to correspond with the earnings for the previous year. When the man returned to Mr. Moore’s desk, the figures for 1930 were on the prospectus, and at that time Mr. Moore said to Mr. Tone, “You see I was right. The earnings for 1930 are way ahead of the earnings for 1929. The earnings of the Middle West Company for 1930 are net $27,682,902 as against earnings of the Middle West Company for 1929 of $22,217,896.” Mr. Moore read these figures from the exhibit. Mr. Tone asked, “How about the gold notes that fell due on June 1, 1930?” to which Mr. Moore replied: “They were paid out of money taken in 1930 from these net earnings of twenty-seven million and some six hundred thousand. The money they took in in 1930 had been applied to the payment of the ten million dollars gold notes due June 1, 1930. The money taken in after that time they have been setting aside for reserve in getting ready to pay the gold notes of ten million dollars to fall due on June 1, 1932.” Mr. Moore added: “The cash position of the Middle West Company is getting stronger all the time.” Mr. Tone then asked Mr. Moore if he had a prospectus of Corporation Securities Co., to which Mr. More replied, “We do not, but have the figures.” Again, Mr. Moore asked the employee to get the earnings records of the Corporation Securities Co. for the year 1930, and told Mr. Tone that the earnings for 1930 amounted to nine million and some hundreds of thousands of dollars; that the expense of Corporation Securities Co. was very small, only six hundred and some odd thousand dollars, and he said, as Mr. Tone recalls, “There is a net remaining of eight million, four hundred thousand and some odd, applicable to retiring gold notes.” Mr. Tone made a memorandum of the figures in Mr. Moore’s presence, and the memorandum is in evidence. Mr. Tone further testifies that Mr. Moore said, “We got these figures from the books and records of the company. We have annual statements from the company, not only annual statements but frequent statements during the year. We verify them with the records.”

Mr. Tone also testified that Mr. Moore told him Mr. Stuart was a director and at one time was president of the Corporation Securities Co., and a member of its executive committee, and that defendant kept in close touch with all of the business of that company and knew its books and records. Mr. Moore said, “We have been setting aside these earnings to'take care of the gold notes of eight million dollars that fall due on September 1, 1931, ever since those gold notes were issued. We have got substantially enough money taken in from earnings now to pay off that installment on September 1,1931. The cash position is strong and getting stronger. As soon as we pay off the gold notes that mature on September 1, 1931, we are going to set aside the balance of the income to retire the notes that fall due on September 1, 1932.” Mr. Moore also said, as Mr. Tone testifies, that the principal investments of Corporation Securities Co. of Chicago were in stock of the Peoples Gras Light & Coke Co., the Commonwealth Edison and Public Service Co. of Northern Illinois ; that the company owned and had in its portfolio in its possession over $22,000,000 of the stock of these companies. Mr. Moore further said that when the prospectus of the Middle West was got out, the preferred and common stock of the company was listed on the Chicago Stock Exchange at a market value of $500,000,000; that there had been a shrinkage of value; that there was still such a large equity that there was no danger of the company not being able to meet its obligations. Mr. Moore, or someone in his presence, then wrote down on this prospectus the prices of different kinds of stock, ran a circle around the figure “50” of “$50,000,000” and put in the figure “40” indicating that the $50,000,000 gold notes outstanding had been reduced to $40,000,000. Mr.. Moore stated that $10,000,000 of the notes were paid out of the earnings for 1931. Mr. Tone was told that the notes of 1932, 1933, 1934 and 1935 were listed on the New York curb; that he might get the quotations from the Tribune or the Chronicle any day and send an order based thereon. After these conversations plaintiff purchased the securities of both corporations from defendant.

The next definite information Mr. Tone had on the subject was after receivers had been appointed for Corporation Securities Co. in April, 1932, and for Middle West Utilities in the fall of the same year. Mr. Tone then employed an accountant to make an analysis of the Middle West statement.

The evidence discloses that the notes of the Securities Co: are worthless and those of the Middle West have very little value.

Plaintiff called Mr. Stuart, president of the defendant corporation, as a witness, who said he was president of the Corporation Securities Co. from the fall of 1929 until January, 1931. The corporation did not operate utilities, and its assets consisted almost entirely of stocks, bonds, debentures, cash, etc. He attended the meetings of its board of directors and was on its executive committee. Samuel Insull was chairman of both, its executive committee and board of directors. His son Samuel, Jr., was also a member of the board and of the executive committee. The witness, Mr. Stuart, who was also a director of the Middle West Utilities for several years but not since 1921 or 1922, said that the defendant company purchased an issue of $50,000,000 notes of the Middle West Utilities, some of which were sold to Tone, and caused a prospectus to be printed in connection with this purchase. Defendant did not have audits made of the books of account of the Middle West Utilities Co. Such audits were made by Arthur Young & Co. and were always accompanied with annual reports certified by Arthur Young. Defendant never made independent audits of that corporation. It had arranged for the purchase of the entire issue of these notes. Mr. Stuart also said that in the summer of 1931 he knew the net income of the Middle West Corporation for the year 1930 was $27,682,902, as compared with $22,917,865.58 for 1929, if it was listed in a public report, otherwise not, and he would not say that he knew it to be a fact. He did not know that the $10,000,000 gold notes due June 1, 1931, were paid out of cash income earned by the Middle West Utilities Co. in 1929 and 1930, nor that the cash position of that company was growing stronger from time to time, or that it was then setting aside a reserve out of cash earnings of 1930 and 1931 to take care of the $10,000,000 in gold notes that would fall due June 1, 1932. He knew that the net earnings of the Corporation Securities for 1930 were $9,865,399.94, if it was in the reports, but did not know that that was cash, earned income during the year, or that the cash position of the company was getting stronger all the time, except as these things were published.

Mr. Moore called by plaintiff also testified that he was likewise without knowledge as to these facts and said he did not know that the total income of Corporation Securities Co. for 1930, was $9,685,399.94, its operating expenses $621,835.79, and net income $9,063,564.15, or that after deducting interest on the funded debt amounting to $663,370.46 there remained on hand $8,400,193.69; nor did he know that the market value of the Peoples Gas Light & Coke Co., Commonwealth Edison Co., and Public Service Co. of Northern Illinois exceeded $22,000,000, or that the cash position of the Middle West Utilities Co. was such as to meet both principal and interest on its $10,000,000 gold notes that would mature about June 1, 1932. He also stated on cross-examination that he did not tell anyone that he did not know any of these things.

Plaintiff secured by subpoena duces tecum the general ledger and other books of both corporations and offered to show by the testimony of expert accountants that the facts stated in the circular handed to Mr. Tone and the statements of Mr. Moore, as testified to by Mr. Tone, with reference to the financial conditions of these corporations were untrue, but the court, upon objection by defendant, held that this evidence was not admissible. Defendant does not now contend that the evidence was not admissible for this purpose, but, as already stated, it contends that even admitting such evidence and conceding the statements were untrue, it was entitled to an instruction in its favor, and that the court did not err in so instructing and did err in granting the motion for a new trial.

Specifically, plaintiff offered to show from the books of the corporations that the earnings of the Middle West Co. for 1930 as written on the margin of the circular, in the amount of $27,682,902, included earnings of subsidiaries not received by the Middle West as dividends or otherwise, not shown on the books of the Middle West, and that the sum also included stock dividends and profits on the sale of securities to subsidiaries; that the funds with which the Middle West paid its notes maturing June 1, 1931, were received from Insult Utilities Investment Co.; that the cash balances of Middle West between January 1,1931, and October 1, 1931, did not increase; that the earnings of Corporation Securities Co. for 1930, as represented to plaintiff, included stock dividends received and did not include as a charge against earnings $250,000 lost on stock purchased, which was improperly charged to capital stock; that the funds with which the Corporation Securities notes maturing September 1,1931, were paid were derived from loans; that between December 31, 1930, and September 1, 1931, the monthly cash balances of Corporation Securities Co. did not increase ; that the stock which Mr. Moore represented to Mr. Tone to be in the portfolio of the Corporation Securities Co., as Mr. Tone said, in its possession, was not in its possession but in fact pledged to various banks as collateral for loans; that prior to June 4, 1930, defendant company had charge of the fiscal operation of Corporation Securities and that the highest quotation on the market for Middle West notes after the appointment of a receiver was 21 cents a hundred and for Corporation Securities Co. notes 1% cents a hundred. This evidence was excluded. Defendant urges that the facts proved were wholly immaterial in absence of evidence tending to show that the representations were in fact known by defendant to be false. In other words, it is contended that in an action of fraud and deceit, mere proof of the falsity of the representations is not sufficient, but that the burden was on plaintiff further to show that defendant knew the representations to be false and made them with an intention to deceive. Several of the counts of plaintiff’s declaration alleged scienter. One alleges that defendant suppressed information which it should have disclosed. Another charges representations were made by defendant without knowledge that the same were true. Plaintiff urges as one of Ms points in the language used by the Supreme Court in Brennan v. Persselli, 353 Ill. 630:

“It is well settled that it is immaterial whether a party misrepresenting a material fact knows it to be false or makes the assertion of the fact without knowing it to be true, for the affirmation of what one does not know to be true is unjustifiable, and if another act upon the faith of it, he who induced the action must suffer, and not the other.” Defendant contends this proposition has no application to the action of fraud and deceit and says that the statement is taken from 'Story’s Equity Jurisprudence, 13th ed., sec. 193, and is applicable only to cases in equity where a complainant seeks relief upon the ground of mutual mistake or where alleged fraudulent representations are interposed as a defense to some action for rescission of a contract or to a suit for specific performance or for general equitable relief. Defendant cites 2 Cooley on Torts, 611, 26 Corp. Jur. 1181: Pittsburg Life & Trust Co. v. Northern Cent. Life Ins. Co., 140 Fed. 888; Frenzel v. Miller, 37 Ind. 1, where the cases from the different jurisdictions are analyzed. The cases recognize the distinction for wMch defendant contends. The rule which plaintiff urges is announced in Wisherd v. Bollinger, 293 Ill. 357; Noll v. Peterson, 338 Ill. 552; Owens v. Union Bank of Chicago, 260 Ill. App. 595; but the questions arising in these cases were equitable rather than legal. The actions were not at law for fraud and deceit. Scienter (intentional wrongdoing) is an essential element of every action at law for .fraud and deceit. (Peek v. Derby, H. L. 14 App. Cases 337.) However, knowledge of wrongdoing is not absent where representations, in fact false, are made in reckless disregard of whether the same are true or false. Where one of the parties asserts that he has knowledge which he does not have, this is a false representation, to which a plea of ignorance is no reply.

In Herman v. Foster & Reynolds Co., 185 Ill. App. 97, Mr. Presiding Justice Baker summed up the result of the Illinois authorities :

“The doctrine that in an action on the case for deceit for false representation it is necessary to prove, in order to recover, not only that the representation was false, but that the party making it knew that it was false, is well settled in this State. In Hiner v. Richter, 51 Ill. 300, and again in Holdom v. Ayer, 110 Ill. 448, it was said that the point has been often ruled on in that court and the question is not open to discussion. In Cantwell v. Harding, 249 Ill. 354, the rule is again announced and a large number of decisions by the Supreme Court cited.

“The facts proved do not bring the case within the rule that where one falsely asserts a material fact to be true of his own knowledge and thereby induces another to act on the fact represented to his prejudice he commits a fraud which will sustain an action for deceit.” Foster v. Oberreich, 230 Ill. 525, and Johnston v. Shockey, 335 Ill. 363, are to the same effect.

The circular handed to Mr. Tone closes with this excerpt: “All statements herein are official or based on information which we regard as reliable, and while we do not guarantee them, we ourselves have relied upon them in the purchase of this security. Chicago, June 6, 1930.” We think this amounts to a representation that defendant knew the representations contained in the circular were true.

The relationship of the parties was such that the duty to disclose fully facts concerning which plaintiff made inquiry was upon defendant. The alleged false representations all concerned matters about which defendant represented itself to have knowledge, and of which it would naturally be supposed to have special knowledge. We hold (proof having been offered tending to show that these representations were untrue) knowledge and intentional wrongdoing, in the absence of proof to the contrary might be inferred. If the false representations were made in good faith the proof was in the possession of defendant, and the burden, we think, was upon it to produce such evidence. We hold the evidence for plaintiff made a prima facie case, which cast upon defendant the burden of introducing evidence.

Defendant also contends that plaintiff failed to produce evidence tending to show that he had been damaged by reason of the false representations. Defendant points out that the statements as to the earnings of these companies were made as of January 1, 1931, more than a year and three months prior to the bankruptcy, and that plaintiff neither received nor requested information as to the condition of these companies during the year, and defendant says there is no proof or offer of proof showing that the facts claimed to have been misrepresented had any bearing upon the companies ’ subsequent insolvency. It invokes the rule of damages in actions for fraud and deceit stated in Johnston v. Shockey, 335 Ill. 363, that a plaintiff in such a case, if entitled to recover, may have only the difference in value between the property received and what he would have received but for the fraud. Defendant says that there is no evidence that plaintiff paid more than the market price for any of the securities he bought, and that there is no proof or offer to show that these securities were in fact, at the time he bought them, worth less on the market than he paid for them. Defendant says that there is no evidence that defendant took any steps to cause plaintiff to hold his securities, and that the evidence in fact showed that plaintiff did not see defendant after he completed his purchases until October, 1932.

We think the rule invoked is not applicable here. The theory of plaintiff’s case is that he purchased these securities for investment, relying upon untrue representations as to the financial condition of the corporations. He held them until the corporations failed. There is no evidence tending to show that he discovered the falsity of the representations until after such failure. In such case, as we understand the law, plaintiff is entitled to recover the difference between the amount he paid for the securities and the value of the securities after the failure of the corporations. Goodwin v. Wilbur, 104 Ill. App. 45; Smith v. Duffy, 57 N. J. L. 679; Hotaling v. Leach & Co., 247 N. Y. 84; Kaufmann v. Delafield, 229 N. Y. S. 545.

One of the counts in plaintiff’s declaration was based on the theory of rescission. Plaintiff offered no evidence tending to support such rescission, and his case was not tr,ied upon that theory. As a matter of fact, the securities were not tendered back to defendant but made the basis of a claim by plaintiff in the bankruptcy proceedings. Under such circumstances he could not recover upon that theory. However, under the counts of the declaration charging fraud and deceit, we think the evidence submitted by plaintiff made a prima facie case that the court erred in excluding the evidence offered and in instructing the jury to return a verdict for defendant, and therefore did not err in granting plaintiff’s motion for a new trial.

The order is therefore affirmed.

Affirmed.

O’Connor and McSurely, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Matchett

license: Public Domain

text:
    In re Estates of Helen Antkowski, Deceased, and Vaclov Antkowski, Deceased. Eloise Kempski et al., Appellants, v. Maria B. Hisgen, Administratrix, and Frederick J. Hisgen, Jr., Ap-pellees.
    Gen. No. 38,833.

      Opinion filed June 29, 1936.
    Jacob Levy, of Chicago, for appellants; Edward McTiernan, of Chicago, of counsel.
    Payton J. Tuohy, of Chicago, for certain appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

On March 15, 1926, Vaclov H. Antkowski, a resident of Cook county, Illinois, died intestate in Chicago, leaving his wife Helen his only heir at law and next of kin. She was appointed administratrix of his estate, and thereafter on June 11, 1926, she suddenly passed away intestate, leaving as her only heirs at law and next of kin, Maria B. Hisgen, her sister, Joseph P. Kwiat-kowski and Leon Kwiatkowski, her brothers, Eloise Kempski, her niece, and Henry Schryer, her nephew.. Maria B. Hisgen was thereupon appointed administra-trix de bonis non of the estate of Vaclov H. Antkowski and was also duly appointed administratrix of the estate of Helen Antkowski.

Vaclov Antkowski owned at the time of his death 26 shares of stock in the Westinghouse Electric Co., 25.02 shares of the common stock of the Sinclair Oil Co. and had a savings account in the First Trust & Savings Bank of Chicago, evidenced by a bank book No. 341819 of that bank, which showed a credit on January 8, 1926, of $1,000.14. The shares of stock were evidenced by certificates issued in the name of Vaclov Antkowski, and these certificates, together with the savings bank book, passed into the possession of Helen Antkowski, administratrix, who took legal title thereto, and being the only heir at law and next of kin and no debts having been proved against the estate, she became the owner thereof. Helen Antkowski was also the owner of 25 shares of common stock of Libby, McNeill & Libby, evidenced by a certificate issued to her in her name. These items of property are the subject matter of this litigation. The certificates of stock are not indorsed, and neither these nor the bank account have been transferred by any purported written assignment. This propérty is in possession of the respondent, Frederick J. Hisgen, Jr., who claims that he became the owner thereof on or about April 15, 1926, at which time, he avers, Helen Antkowski, his aunt, delivered each and all of these items of property to him, stating that she was making a gift of them to him. This proceeding was begun in the probate court when petitioners, heirs at law and next of kin caused a citation to be issued against him and the administratrix, his mother, pursuant to the provisions of sections 81 and 82 of the Administration Act (see Ill. State Bar Stats. 1935, p. 57). After hearing the evidence the probate court entered an order finding that respondent was the owner of each and all these items of property by gift from Helen Antkowski. Petitioners appealed to the circuit court of Cook county where the issue of ownership was submitted to a jury which returned a verdict in favor of respondent, and the court, overruling the motion of petitioners for a new trial, entered judgment in accordance with the verdict, which petitioners seek by this appeal to reverse.

It is contended in the first place, that respondent, Frederick J. Hisgen, Jr., failed to establish his claim by that clear and convincing proof required to establish a gift. The law is well settled that such evidence is necessary in order to establish a gift of property inter vivos. First Trust & Savings Bank v. Austin, 243 Ill. App. 386; Rothwell v. Taylor, 303 Ill. 226; Bolton v. Bolton, 306 Ill. 473. As already stated, the evidence here shows that respondent was the nephew of deceased; that he showed kindness to Mrs. Antkowski in many ways after the death of her husband; that prior to May 1, 1926, Mrs. Antkowski lived on Argyle street, on the north side of Chicago; that about that time she moved to 6009 Rhodes avenue, the south side of Chicago, which was very near to the home of respondent, who lived with his mother, Maria Hisgen, at 5747 Michigan avenue; that respondent visited his aunt very often, and that she relied upon him in many of her matters. The evidence shows that Mrs. Ant-kowski kept a safety deposit box in the Ashland State Bank, but the undisputed evidence shows that this property was not in that box at the time of her death. The evidence tends to show that about May 15th, at the home of respondent’s mother and in the presence of several witnesses, Mrs. Antkowski handed to respondent a package wrapped in brown paper which contained the certificates for these stocks and this bank book, and, as Maria Hisgen testifies, she at that time said, “Fred, I give you this.”

Mrs. Cowan, neighbor and friend of these people, says she remembers the occasion when Mrs. Antkowski rang the Hisgen’s door bell and, as they were not then at home, she then rang the door bell of witness’s home, and witness invited her to come in and wait, which she did. Mrs. Cowan says that Mrs. Antkowski had a package with her and told witness that she had been very blue since she lost her husband, and that she wanted Fred Hisgen to have everything she owned; that in a short time Hisgen and his mother returned and Mrs. Antkowski went to their apartment, the witness following her; that when she came in, Mrs. His-gen, Fred Hisgen and Maria Hisgen were there, sitting at the kitchen table, drinking coffee; that Mrs. Ant-kowski handed Fred a package and said, “I want you to have this,” and she said, “Yes, I give this to you.” The witness says there were some papers in the bundle which looked like mortgages, or something. She says that she talked with Mrs. Antkowski two weeks before this time and she then told witness she wanted her nephew Fred to have everything she had, so that he would look after his mother and his sister. She says Mrs. Antkowski talked often with her; that she heard Mrs. Antkowski repeatedly say she wanted Fred to have everything she had. The witness admits that she is very friendly with the Hisgens. She thinks that on the occasion in question she stayed in Hisgen’s apartment about a half hour. Asked to give the exact words Mrs. Antkowski used, the witness replied, “She said, ‘Fred, I want you to have this’ ”; that Fred then opened the package, which was about eight inches long and four, five or six inches wide, wrapped in brown paper, and a bank book fell out; that he looked at it, and Mrs. Antkowski said, “Fred, these are yours.”

Marie Hisgen testified that she was present when her Aunt Helen handed her brother a package and said, “Fred, I give you this, and I want you to take care of your little sister and your mother.” She says that Fred opened the package; that she watched him and remembers there were certificates of stocks and a bank book in it; she describes in detail the particular shares of stock; she says the parties present stayed in the kitchen quite awhile and then had dinner; that her brother took the package and went out of the room; she also says that her aunt said to her brother prior to this time, “I want you to have everything.”

James Poling, who had been a specialist in the purchase of oil station sites for the Standard Oil Co. and at the time of testifying was an assistant to the Director of Finance at Springfield, says that in May, 1926, he was checking real estate at 47th street and Whipple avenue and found the property was owned by Vaclov Antkowski, who lived on Argyle street; that he wrote a letter to him and found that he had died and the wife lived at 60th and Rhodes avenue; that he called there and talked with Mrs. Antkowski about the middle or third week of May, 1926; that he asked her if the 47th street property was for sale and she told him that she no longer owned that piece of property and that she had given all her property to Fred Hisgen, her nephew, who lived on Michigan boulevard near 58th street; that the witness did not know Fred Hisgen at that time and had no transactions either with him or with Mrs. Helen Antkowski.

Petitioners undertake to discredit all this evidence by pointing out circumstances which it is claimed render it improbable, and proved facts inconsistent therewith. As to Poling’s testimony, it is pointed out that the uncontradicted evidence is that Helen Ant-kowski had not given her real estate to respondent but, on the contrary, held the title thereto until she died, after which it was partitioned by the heirs. They point out that Poling’s evidence, as well as other evidence, is in the nature of oral admissions, which are to be received with caution, and, moreover, that the statements related by Poling are not inconsistent with the theory that decedent gave the property to respondent, not as owner but as'her agent. They also make much of the fact that for years respondent made no effort to secure a conveyance of the stock certificates upon the books of the respective corporations, or to have the account represented by the bank book transferred into his own name. When asked upon examination why he had not presented the account book to the bank, respondent said, “I did not because I have no authority”; that he intended to do this when he should have “lawful possession.” Petitioners also point out inconsistencies and contradictions in the testimony of the witnesses as to the order of events and circumstances at the time of the alleged gift of the property to respondent. Petitioners say that the testimony of Mrs. Cowan does not sufficiently identify the particular items of property. This last observation is correct, but respondent did not attempt to prove his case by only one witness. The identification of the items is made quite sufficient by the testimony of other witnesses. Respondent is criticized for not calling the administratrix as a witness, but he was not under obligation to do so, and in her report to the probate court she expressed her belief that a valid gift of this property was made to respondent.

It is urged that the application for letters of administration is inconsistent with the fact of a gift because it stated that the personal property in the estate amounted to “not more” than $5,000. We do not think this suggestion is entitled to much weight. Clearly, it would become necessary for the administratrix to show in her inventory and final account these items of property, as respondent’s title would be derived from the administratrix. While some of the observations of petitioners are not without merit, they cannot prevail in face of the fact that two judges and a jury have passed upon the weight of the evidence and held it to be sufficiently clear and convincing. Two of the witnesses were without any financial interest. It is true that respondent’s apparent lack of interest in the gift and the want of expression of appreciation of it seem quite unusual, but this and some other matters argued by petitioners tend to show an absence of fabrication. It is true that the absence of an assignment of the account and lack of indorsements of the certificates indicate carelessness, but the books are full of cases in which persons under similar circumstances have transferred securities in the same way.

Summarizing the uncontradicted evidence, it is to the effect that Helen Antkowski desired respondent to have her property; that he was naturally the one to whom by reason of interest and affection she would desire to give it; that several weeks prior to her death, evidently not anticipating immediate death, this property was delivered by her to respondent; that unim-peached witnesses heard her say when delivering it to him that she was making a gift of it to respondent. In view of this uncontradicted evidence and in view of the verdict of the jury who saw and heard the witnesses, we cannot, in the absence of some positive rule of law compelling a contrary conclusion, hold that the gift was not valid and complete.

Petitioners, however, further contend that the claim to the deposit money in the savings bank was a chose in action, which was not, as a matter of law, transferred to the donee. The bank book, say petitioners, was not the subject matter of the gift; it was only a symbol of the thing it represented. They quote 28 Corp. Jur. 665. They argue that to make possible a symbolical delivery of the gift, the savings bank book should show the name of the donor and show the deposits in her name; that this bank book did not show this; that decedent’s name did not appear on the pass book nor on the books of the bank because her claim to the deposit originated by reason of the fact that her husband had made the deposit, and her interest arose out of the fact that she was his widow and sole surviving heir. They say:

“In other words, her claim was an intangible right. It was a chose in action of such a character that a manual delivery of same could not be made. Accordingly, in order to effectuate a gift under the law, it was necessary to execute a written assignment of that parol chose of action. This was not done.”

The cases are to the effect that delivery of the subject matter of a gift is essential to passing title, and where the nature of the thing given is such that it is not capable of actual delivery, there must be some equivalent by way of a symbolical delivery. Delivery is essential to every gift. It follows that where the nature of the thing is such that there can be neither actual nor symbolical delivery, it is impossible to make a gift of that thing without a written assignment. It was for this reason in Wachsmuth v. Penn Mut. Life Ins. Co., 147 Ill. App. 510, where a father said to his sons, who were indebted to him, that he had canceled the debt and that he would give it to them, the words were held ineffectual to create a gift inter vivos. For the same reason in Berry v. Berry, 238 Ill. App. 507, where a son borrowed from his father, orally agreeing to repay, it was held that this indebtedness could not form the subject matter of a merely verbal gift, but that some writing was indispensable. So also in Wilson v. Keller, 9 Ill. App. 347, where there was an alleged verbal gift of a claim due from the donee to the alleged donor for medical services, it was held that the indebtedness could not be made the subject of a verbal gift, and that the promise of the alleged donor was nudum, pactum.

The attempted gift of a savings account by transferring to the donee the book of account containing the contract between the bank and the depositor concerning the account with the bank is distinguishable from these cases, for the reason that the subject matter of the gift in the case of the gift of a savings account is symbolically represented by a written contract, which is not an intangible but a tangible thing, capable of actual, manual delivery. While there is no case in Illinois, so far as we are informed, so holding precisely, the weight of authority is to the effect that a gift of such deposit may be made by delivering the deposit book, together with the proof of verbal expression by the donor of his intention to make a gift of the account.

Petitioners cite 28 Corp. Jur. 665, sec. 65-C, but quote only a part of the paragraph. The portion omitted states, in substance, that the law is that no written assignment of the deposit book is necessary. Petitioners cite Pierce v. Boston Five Cents Sav. Bank, 129 Mass. 425, 37 Am. Rep. 371, 40 A. L. R. 1251, but the portion of the opinion quoted does not accurately state the substance of the decision, which is to the effect that a valid gift is made by delivery of the deposit book with an oral expression of intention to make a gift, which is accepted by the donee. The weight of authority is to the same effect. See Annotation to Snidow v. Brotherton, 140 Va. 187, 124 S. E. 182, 40 A. L. R. 1249-63. Almost innumerable cases from different States so hold. Dellepiane v. Hynes, 83 Cal. App. 604, 257 Pac. 180; In re Lunt’s Estate, 262 N. Y. S. 86; In re White’s Estate, 266 N. Y. S. 765; In re Knight v. Mears, 156 Va. 676,159 S. E. 119; State Savings Bank v. Baker, 257 Mich. 666. In analogous cases the courts of Illinois have so held, as in Rinard v. Lasley, 143 Ill. App. 450; Merrill v. Merrill, 187 Ill. App. 589, where certificates of deposit were the subject matter of the gift; Poirot v. Gundlach, 284 Ill. App. 349, where the alleged gift was a memorandum of indebtedness; Martin v. Martin, 174 Ill. 371; Rothwell v. Taylor, 303 Ill. 226, where the subject matter of the gifts were negotiable instruments.

We hold that the subject matter of the gift as to this savings bank account was not intangible, and that there was an actual delivery of the book with verbal expression of intention to make a gift sufficient to pass the title.

Petitioners next contend that the title to the shares of stock did not pass because the certificates were not transferred on the books of the several corporations in conformity with the provisions of the Uniform Stock Transfer Act (Ill. State Bar Stats. 1935, p. 901). This point is presented by petitioners for the first time in this court. The cause was not tried by petitioners upon this theory, and respondent argues that petitioners cannot now be permitted to urge thát theory here for the first time. Respondent cites Wollenberger v. Hoover, 346 Ill. 511; Roof v. Rule, 348 Ill. 370, and Morrison v. Laverty, 205 Ill. App. 549. The cases are not in point. In the trial court petitioners at all times took the position that the title to the property had never been in fact transferred to respondent. They are not now precluded from urging any theory consistent with that position. The point presents a question of law whether under the statute the right of property in the certificates of stock passed to respondent. Respondent relies on sections 1 and 9 of the act (assuming the statute to be applicable, which he does not concede). Section 1 provides that title to certificates and the shares represented thereby can be transferred only in the manner indicated in the several sections of the act. Section 9 provides, in substance, that the delivery of a certificate by a person appearing by the certificate to be the owner thereof, without the indorsement requisite for the transfer of the certificate and shares but with intent to transfer, shall in the absence of an agreement to the contrary, impose upon the person so delivering an obligation to complete the transfer by making the necessary indorsement, and that the transfer should take effect as of the time when the endorsement is actually made. Professor Mechem, discussing the Uniform Act in Illinois Law Review, vol. 20, pp. 9 to 30, expresses the opinion that sections 1 and 9 construed together would appear to provide that “the delivery of a certificate, unendorsed, would be effectual to pass an equitable title, enforcible by the donee,” and says, “That such a conclusion is correct has been held or intimated in at least two cases.” He cites Herbert v. Simson, 220 Mass. 480, 108 N. E. 65, and Reinhard v. Roby Co., 110 Misc. Rep. 152, 179 N. Y. S. 781, both of which involved the validity of a gift of stock certificates.

In Fletcher Cyclopedia Corporations, vol. 12, sec. 5684, the author states:

“According to the weight of authority, a transfer of the stock to the donee on the corporate books is not essential to a valid gift as between the parties, and hence, as between them, the fact that it remains in the name of the donor on the books does not defeat the gift nor affect the title of the donee, nor has the Uniform Stock Transfer Act made any change in this rule. But there is some authority to the effect that a transfer on the books is essential to a delivery.” In support of the statement is cited In re Connell’s Estate, 282 Pa. 555, 128 Atl. 503, 38 A. L. R. 1362. After stating the general rule in that State is well settled, that a valid gift of nonnegotiable securities might be made by delivery to the donee without assignment or indorsement in writing, the opinion goes on to state that the rights of the parties as between themselves have not been affected by the provisions of the Uniform Stock Transfer Act, which had been adopted in that State. It held that the object of the statute was merely to regulate the mode of transfer upon the books of the corporation and to furnish a rule for deciding between claimants contesting over the ownership of the stock, and that the provision was inserted for the protection of the corporation in the payment of dividends or otherwise, but was not intended to control the rights of the parties in matters as between themselves.

There is obiter to the contrary in Parker v. Colonial Bldg. Loan Ass’n, Ill N. J. Eq. 49, 161 Atl. 353. That decision is by the chancery court of New Jersey, and the courts of that State, contrary to the weight of authority, have held that the mere delivery of certificates of stock without a writing is ineffectual to pass title. The courts of Louisiana, Oklahoma and Colorado hold likewise and irrespective of the Uniform Stock Transfer Act. See 20 Ill. Law Review, p. 17. We think the Pennsylvania court in In re Connell’s Estate correctly held that the rights of parties as between themselves are not affected by the provisions of the Uniform Stock Transfer Act, and that it was not the intention of the legislature to change the rule of law applicable as between the immediate parties to the transaction. This construction of the act is in harmony with Patterson v. Fitzpatrick McElroy Co., 247 Ill. App. 81.

The brief of petitioners presents as a separate point that delay by respondent in asserting his claim to the gift operates against it and cites Eichin v. Eichin, 244 Ill. App. 89, and First Trust & Savings Bank v. Austin, 243 Ill. App. 386. The fact of delay has been already considered with respect to the point concerning the weight of the evidence. It is entitled to weight but is not controlling.

Petitioners also argue that the decedent could not make a gift because it was impossible for her to vest the title in the donee, since the subject matter of the gift was property of her husband’s estate, of which she was the administratrix. While in one sense, technically, the title was in her as administratrix, there was, so far' as the evidence discloses, no debts against the estate, and she held the title for herself. It was to all intents and purposes her own, and she had possession and had the power to make a gift if she chose to do so. She was the administratrix. She was the sole heir. She was the owner in possession and could make a gift of her property if she willed to do so.

The judgment of the trial court is affirmed.

Affirmed.

O’Connor and McSurely, JJ., concur.


author: Mr. Justice McSurely

text:
    Anne Henson, Appellee, v. Anna Neumann, Appellant.
    Gen. No. 38,774.
    Opinion filed June 29, 1936.
    Rehearing denied July 10, 1936.
    Hubbard, Baker & Rice, of Chicago, for certain appellant.
    G. A. Buresh, of Chicago, for certain other appellant.

      Ward H. Harris and Channing L. Sentz, both of Chicago, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff’s amended complaint asked for an accounting from the defendant, her mother, and also sought to recover an amount claimed to be due because of an anticipatory breach of a contract; answer was filed and the case was referred to a master in chancery who heard evidence and reported his conclusions, recommending a decree in favor of plaintiff; objections and exceptions were filed but the decree was entered, and defendant appeals.

The property involved consists of an estate left by the husband of defendant who died intestate, leaving his widow and three minor children, Alma, Anna (subsequently married, now Anne Henson, plaintiff) and Johanna (now Louise Eegel) his only heirs at law. Plaintiff asserts that when her father’s estate was closed it was agreed between her mother and the children that the use of the entire property should be left with the defendant upon her promise that at her death it would be distributed equally among. the three children. Defendant asserts that when the estate was closed the children made an absolute and unconditional gift of the property to her. At the hearing before the master she testified there was $26,000 left in the estate.

The master found that on March 8,1900, the defend: ant, Anna Neumann, was duly appointed guardian of. the estate of Alma, Anna and Johanna Neumann in the probate court of Cook county; that this estate consisted of items of real and personal property which the minors had inherited from their father, John Neu-mann; that the first report of the defendant, as guardian, was filed in 1904, and no other report was filed until the estate was closed February 23, 1921, although the youngest of the heirs (Johanna, now Mrs. Louise Regel) had attained her majority on September 24, 1915.

There is some conflict in the evidence as to what took place upon the closing of the estate. Plaintiff testified that she was 18 years old on March 6, 1914; that her mother and her two sisters had a conversation with reference to the distribution of the estate; that the girls had signed receipts for their share, and thereupon the mother said, “If each one of you girls take your share as the court has divided it, it won’t leave me enough money to live on and to pay all the expenses”; that plaintiff then said that inasmuch as all the girls had good jobs they would let defendant have the use of the property for the time being, and her mother said that if that were done, then, in the event of her death the children would share and share alike in her estate. Some question arose between the girls as to certain differences in the final account, to which the mother replied again that at the time of her death she would see to it that the property would be divided equally among the children. Plaintiff testified that whenever her mother mentioned anything about the estate she always said the children were to share equally in the event of her death.

Alma Neumann, one of the daughters, testified that when the attorney who represented them in the closing of the estate asked the children what they wanted to do about the property, she told him they wanted to give it to their mother; she also testified she never received any money at this time and that no money or securities were exhibited or offered to them; she also testified that her mother said a number of times that upon her death her estate was to be divided equally among the three children. Louise Regel, another daughter, testified that when the estate was closed the children were asked what they wanted done with their property and that they replied they wished to give it to their mother. Defendant testified as to what took place in the probate court. Plaintiff denied that in the probate court she had said she wanted to give her share of the father’s estate to defendant.

The master found that when the estate was closed in 1921 the defendant did not present or bring into court any securities or other papers evidencing rights in and to the property comprising the minors ’ estate; that no moneys were produced in court and that none of said wards received any funds or properties from the guardian as her distributive share and none of the wards received any of the sums of money described in the final account. The master found that each of the children allowed the defendant to continue in possession of the moneys representing their distributive shares, to have and enjoy the use thereof as her individual property; that the transaction in which plaintiff and her sisters allowed said property to remain with defendant was consummated in an informal manner and without any writing evidencing the same; that plaintiff was induced to allow the use of her distributive share by her mother by reason and in consideration of defendant’s promise to cause her estate to be divided equally among her daughters at her death, and that from 1921 until July, 1933, the defendant from time to time stated and assured her daughters that she would cause her estate to be divided equally among her daughters at her death.

We hold that the evidence sustains the report of the master that plaintiff did not give her share of the estate to defendant, and that plaintiff was induced to. allow the use of her distributive share by the defendant in consideration of her mother’s promise to cause the estate to be divided equally at her death. It is competent for a person to make a valid agreement binding himself to make á particular disposition of his property by last will and testament. Austin v. Kuehn, 211 Ill. 113. We therefore affirm that part of the decree which approves and confirms the finding of the master that there was a valid agreement between the plaintiff and the defendant whereby plaintiff permitted the defendant the use of plaintiff’s distributive share upon the promise of the defendant to cause her estate to be divided equally among her daughters at her death.

Plaintiff also alleges and sought to prove that there was an anticipatory breach of this contract which gives her the right to an immediate action for damages. The master found that plaintiff was married to Ernest D. Henson on October 22, 1930; that plaintiff, with her husband, resided in the same apartment with defendant, and that from March, 1932, until July, 1933, friction and misunderstanding arose between plaintiff and defendant. The master found that in July, 1933, in the course of a heated discussion between them, plaintiff asserted that her distributive share of the estate still belonged to her, and that her mother replied that it was her own money “and I (plaintiff) had nothing coming from her.”

Defendant in her answer asserted that the entire property belonged to her and that she owed plaintiff nothing and was under no duty to account to the plaintiff. Defendant gave testimony indicating that in 1933 the relations between herself and plaintiff were quite hostile. There was evidence indicating that the husband of plaintiff was an active cause in creating ill feeling between plaintiff and her mother.

The evidence, however, fails to show that the defendant has breached her agreement to leave the property to the girls in equal shares upon her death. There was an abundance of evidence that she was disposed to treat her children fairly and impartially. Louise Eegel testified that her mother never showed any partiality among the girls but that all were treated alike and all treated “fair and square.” Plaintiff herself testified that as late as December, 1933, her mother told her that when she made a will she would treat all of the children alike. Defendant, testifying on December 4, 1934, before the master, stated that she had no reason “at this time to favor one and disfavor the other. ’ ’

The master found that the statements made by defendant that plaintiff could not expect to receive anything at defendant’s death were made under “considerable provocation and passion of argument”; that the defendant conceded that such declarations were made in the heat of discussion; defendant introduced evidence that she had not made any will disposing of her estate or had shown any partiality toward one daughter over another, and in the event of her death the same would be divided equally among her daughters in accordance with her previous promises from time to time. We hold that the evidence did not justify the finding of the master that the attitude of defendant amounts to an anticipatory breach of the contract, and in this respect the chancellor should have sustained exceptions to the master’s report.

A question of law is presented by respective counsel as to whether plaintiff can now maintain her action on the ground of an alleged anticipatory breach of such a contract as we find here. In 13 Corpus Juris, sec. 728, p. 655, it is stated that the doctrine of anticipatory breach of contract applies only to contracts containing intérdependent obligations and does not apply where the contract is executory only in behalf of the other party. In the Restatement of the Law on Contracts, par. 318e, p. 477, the author says: “The doctrine of anticipatory breach is not extended to unilateral contracts unless the promisor’s duty is conditional on some future performance by the promisee. It is immaterial whether the contract was originally thus unconditionally unilateral or has become so by the performance of one party. In neither case can a breach arise before the time fixed in the contract for some performance. There must be some dependency of' performances in order to make anticipatory breach possible.” In Pittman v. Pittman, 110 Ky. 306, 61 S. W. 461, plaintiff sued upon a contract whereby the defendant had agreed to make the plaintiff one of his heirs at law, giving him a child’s share of his estate in consideration that plaintiff would work a specified number of years; plaintiff alleged he had fully performed when defendant repudiated the contract. The court held that while plaintiff might recover for the value of his services, yet he could not enforce specific performance of the alleged contract as the time had not yet arrived for this, saying, 1 ‘ The time to demand its enforcement is upon the death of the” promisor. In Warden v. Hinds, 163 Fed. 201, plaintiff sued upon a written contract alleging that he had performed certain services for defendant upon the promise that defendant would leave her a legacy upon his death; plaintiff alleged performance and her discharge without cause; she brought suit for the amount of the promised legacy and recovered. The court reversed the judgment of the lower court upon the ground that such contracts are susceptible of enforcement only after the death of the testator by bill in equity for specific performance. The opinion discusses the case of Johnson v. Hubbell, 10 N. J. Eq. 332, which involved a bill for specific performance of a father’s agreement to leave plaintiff certain property by will; the father died leaving a will by which he excluded plaintiff from all participation in his estate. The court sustained the plaintiff, but said:

“It is obvious that an agreement to make a certain disposition of property by devise is one which, strictly speaking, will not support an action in the party’s lifetime, because any testamentary instrument is by its nature revocable. No one can tell what it will be until the maker dies, and he has his whole life in which to perform the covenants.”

The opinion in the Warden case concludes: “It is true there is authority for the position that in some instances under an agreement to bequeath property the person to whom the bequest is to be made may in the lifetime of the proposed testator, in order to prevent the loss of the property through extravagance or other misconduct of the latter, file a bill quia timet on the equity side of the docket to have such testator declared a trustee to the extent of the claim; but the elementary writers and the judicial decisions all seem to be in harmony in support of the proposition that upon an agreement to make á will an action at law does not lie during the lifetime of the proposed testator. It would seem that the fact that bills quia timet based upon contracts for the disposition of property by will are entertained, as stated above, in the lifetime of the proposed testator, gives additional strength to the position that an action to enforce the contract itself cannot be maintained until after his death.”

Van Duyne v. Vreeland, 12 N. J. Eq. 142, involved an agreement whereby defendant would give plaintiff all his property at his death, and all the conditions had been performed by plaintiff. The court upheld a bill to prevent the defeat of plaintiff’s rights, and commenting upon the question of specific performance held that he was not entitled to this during the lifetime of defendant. There' are cases sustaining bills to prevent waste, under similar circumstances, where it is shown that the waste was purposely contemplated to defeat the undertaking of the promisor. We find no case enforcing specific performance, during the life of the promisor, of a promise to leave a devise by will.

Carter v. Witherspoon, 156 Miss. 597, cited by plaintiff, held that plaintiff might recover the value of services. rendered to defendant, although defendant had served notice that she did not intend to comply with her promise to bequeath her property to plaintiff. In Tipple v. Tipple, 177 N. Y. S. 813, it was likewise held, under similar circumstances, that plaintiff might recover the value of the services rendered. In Wold v. Wold, 138 Minn. 409, where the defendant had repudiated his agreement to leave plaintiff his property upon his death, the court entered a decree.awarding to plaintiff the rights of an heir but did not decree that plaintiff should have the property before the death of the promisor. In none of these cases do we find a decree awarding property to the plaintiff before the death of the promisor.

We find cases fixing the rights of the plaintiffs under such circumstances, and that is what we have done in this opinion by holding that there was a valid agreement on the part of the defendant that plaintiff is entitled to one-third of the estate upon her death. But Ave also hold that plaintiff is not entitled to pursue an action for specific performance at the present time for the reason that the eAddence fails to prove an anticipatory breach, and furthermore, that in law plaintiff is not entitled at present to the remedy she seeks.

Defendant makes the point that the claim is barred by the statute of limitations, saying that the plaintiff is relying upon the agreement made in 1915. The statute of limitatiqns cannot run until the agreement to devise the property is broken. Manifestly plaintiff could have no right to commence these proceedings until the contract Avas broken by the defendant which, plaintiff asserts, was in July, 1933. However, this is a moot question as we have held that there was no breach of the contract.

For the reasons above indicated the decree is affirmed in part and reversed in part, and the cause is remanded; costs to be divided equally between the parties.

Affirmed in part, reversed in part and remanded.

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


text:
    Kathryn H. Larson, Appellant, v. James W. McCor-mack et al., Appellees. Massachusetts Mutual Life Insurance Company, Appellee.
    Gen. No. 38,836.
    Opinion filed June 29, 1936.
    Rehearing denied July 10, 1936.
    Charles M. Haft, of Chicago, for appellant.
    Eckert & Peterson, of Chicago, for certain appel-lee ; Tom Leeming, of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff, having obtained a judgment against James W. McCormack, garnished the Massachusetts Mutual Life Insurance Company, which answered disclaiming that it had any property or effects in its possession belonging to the defendant McCormack; upon trial the garnishee was discharged, and plaintiff appeals from this order. ,

In 1927 the insurance company issued its policy on the life of the defendant McCormack in the amount of $50,000; August 25, 1933,, McCormack applied to the company for a loan on the policy; at about the same time the company received a letter written by the Chicago Title and Trust Company, the named beneficiary in the policy, purporting to release its rights in the policy. The application for the loan was duly acted upon, and on September 15,1933, the home office of the company in Springfield, Mass., forwarded to the office of its agents in Chicago a check payable to the order of the defendant McCormack for $3,938.15, which represented the amount of the loan on the policy. This check was enclosed in a letter to its local agents, in which the company said that because the Chicago Title and Trust Company had disclaimed any further interest in the policy “it will be necessary for the insured to immediately nominate a new beneficiary. Enclosed you will find an ainendment for the insured’s signature calling for change to his estate to cover this point. . . . With the understanding that you do not allow any of our enclosures to be used or delivered until you have the enclosed amendment in your possession signed by the insured as instructed, we enclose check. ’ ’

September 22nd the company was served with garnishment summons and filed its answers to interrogatories, saying there was no sum of - money due Me-Cormack at this time and stated that there were no cash loan values due McCormack because he had not ‘ ‘ complied with the terms and prerequisites necessary to be complied with before any of such cash surrender values should become due to the said defendant.” It is conceded that McCormack never executed the amendment nominating a new beneficiary.

Plaintiff argues that the company was: obligated, both under the statute and provisions in the policy, to make the loan to McCormack. Ill. State Bar Stats. 1935, ch. 73, ¶ 375 (par. 261, subpar. 6, ch. 73, SmithHurd Statutes) makes it obligatory upon a life insurance company to lend a sum equal to the reserve at the end of the current policy year, with certain reservations. The policy also provides to the same effect.

It has ueen held, that garnishment cannot lie unless the garnishee is indebted to the judgment debtor without uncertainty or contingency at the date of the answer of the garnishee. Wheeler v. Chicago Title & Trust Co., 217 Ill. 128. It is also the well settled rule that a fund is not subject to garnishment if the judgment debtor could not maintain an action therefor. Supreme Order Iron Hall v. Grigsby, 178 Ill. 57; Swope v. McClure, 239 Ill. App. 578.

There is no dispute as to the general principles of law involved. The decision rests upon whether the company had the right to .impose, as a prerequisite to a delivery of its check to McCormack that he should nominate a beneficiary. The- Chicago Title and Trust Company had disclaimed. any interest in' the policy. The policy specifically provides that any change- of beneficiary shall become operative only when indorsed upon the policy at the company’s home office, “pursuánt to such form of request as the company may require.” In Sun Life Assur. Co. v. Williams, 284 Ill. App. 222 (leave to appeal to Supreme Court denied), we held that such a provision is for the protection of the insurance company, to avoid a multiplicity of claimants. When the Chicago Title and Trust Company disclaimed any interest in the policy there arose a question as to whom the proceeds of the policy should be paid in the event of the death of the insured. The company properly requested the insured to designate a new beneficiary. This was a justifiable precaution taken by the company to protect itself from the possibility of adverse claims to the $50,000 payable upon the death of the insured.

Moreover, there was a provision in the policy giving the company the right to defer making a loan to the insured for a period not exceeding 90 days from the date of the application, so that the company had the right and sought to ascertain, within this 90-dav period, whether others had acquired any rights in the policy, and to have an amendment indorsed upon the policy showing the new beneficiary and his rights. In its letter enclosing the check the company clearly indicated that the loan was not to be consummated until this amendment was secured. It also should be noted that the garnishee summons was served upon the company long prior to the expiration of the 90 days, which is an additional reason why the judgment debtor could not within this period maintain an action against the company.

Plaintiff says that the statute above referred to requiring a life insurance company to make a loan, contains the provision that “no condition other than as herein provided shall be exacted as. a prerequisite to any such loan, ’ ’ and that the statute provides no condition that the insured shall nominate a beneficiary as a prerequisite to a loan. It is well recognized that a garnishee has a right to protect himself from a liability which in fairness and justice he ought not to incur. The company had the right to protect itself from possible adverse claims of parties claiming as beneficiaries. It will be protected in its refusal to deliver the amount of the loan until this possible, liability is removed. Gorham v. Massillon Iron & Steel Co., 284 Ill. 594: Moreover, the statute referred to also contains a provision that such loan may be deferred for not exceeding six months after the application therefor is made. ' Therefore the company had the right to ivithhold payment of the loan for a period of six months. The company Avas garnished Avithin íavo Aveeks after it received McCormack’s application.

Plaintiff presents the well known rule that if there is any ambiguity in the language of a policy the interpretation most favorable to the insured will be adopted. It is sufficient to say that there is no ambiguity in the language of the policy in question, and in any event plaintiff is not a party to the policy, so the rule does not apply.

We see no good reason to disagree with the holding of the trial court and the judgment is therefore affirmed.

Affirmed.

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


author: Mr. Justice O’Connor

text:
    Julius A. Goldberg, v. Minerva Sales Company et al. Fred E. Hummel, Appellee, v. Ambassador Garage Company, Appellant.
    Gen. No. 38,787.

      Opinion filed June 29, 1936.
    Thomas Hart Fisher, of Chicago, for appellants.
    Judah, Reichmann, Trumbull, Cox & Stern, of Chicago, for certain appellee.
    Thomas J. Finnegan, of Chicago, for certain other appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

July 30, 1930, Fred E. Hummel was appointed receiver by the circuit court of Cook county for a Minerva automobile which was involved in litigation. September 21, 1935, Hummel, the receiver, filed his petition setting up his appointment as receiver of the automobile; that continuously from the date of his appointment until the filing of his petition the automobile was in the garage of the Ambassador Garage Company arid that the garage company was claiming compensation for storage; the prayer was that the court enter an order fixing the reasonable amount of the Ambassador Garage Company’s charges from July, 1930, to the date of the sale of the automobile, which had not then been sold; that the court also fix the amount of the receiver’s compensation and approve the cash disbursements theretofore made by the receiver, as set-forth in the petition.

September 28, 1935, the garage company answered the petition, claiming $18 a month, or a total of $1,116, for its charges in storing the automobile, and that, pursuant to the provisions of paragraphs 45 to 52 of eh. 82 of the Illinois Revised Statutes, it had a lien superior to the claims of all others. November 27, 1935, the receiver filed his report, setting up that he had sold the automobile on November 13, 1935, for $355 cash, and that the sale was made subject to the approval of the court. December 19, 1935, the order appealed from was entered, in which it was recited that the matter came on to be heard on the report of the receiver of the sale of the automobile. The court found that the reasonable amount for storage charges which the garage company was entitled to from July 30, 1930, to and including the date the order was entered, exceeded $355. The court further found that the amount to which the receiver was entitled for sums advanced by him in connection with the receivership and expenses incurred in connection with the sale of the automobile, his fees as receiver, and attorney’s fees incurred by him, exceeded $355. And it was ordered that the sale be approved and the $355 be divided equally, $177.50 to the garage company and the remaining $177.50 to the receiver, in full of all claims of the garage company, of the receiver, and his solicitor’s fees.

The garage company appeals, claiming it is entitled to a lien on the $355, which lien is superior to the claim of the receiver and therefore it should have received the $355. On the other side, the petition of the receiver is that he should be paid his fees and those of his solicitor, also “actual necessary out-of-pocket expenses exclusive of the cost of advertising for the sale,’’ which expenses amount to $126, before any payment to the garage company, but in view of all the facts he is willing to abide by the order of the court dividing the $355 equally between the garage company and himself.

The record discloses that Goldberg filed his complaint in the instant case to foreclose a lien for the amount he had paid on the contract to purchase the Minerva automobile from defendants. There was a decree in his favor which was affirmed by this court— Goldberg v. Minerva Automobiles, Inc., 278 Ill. App. 217. In that case Fred E. Hummel was on July 30, 1930, appointed receiver of the automobile, which was then in plaintiff’s garage. Some time prior to the appointment of the receiver Goldberg placed the car in the Ambassador garage and paid it $18 a month until the day the receiver was appointed. Since that time neither the receiver nor anyone else has paid anything to the garage company although the car has been in the garage continuously.

After the affirmance of the decree by this court, as above stated, the Supreme Court on April 17, 1935, denied leave to appeal. While the case was pending on appeal the Ambassador Garage Company brought two suits in the municipal court of Chicago to recover its charges for storage of the car. One of the suits was against Goldberg and the other against Hummel, the receiver, and storage ivas claimed from August 1, 1930. Those two suits were consolidated. There was a hearing before the court without a jury, and a finding and judgment against plaintiff. The court found that Goldberg was not liable for storage charges because he had paid them until the receiver was appointed. The court also held that the receiver was not liable, but on what theory we are not advised. The garage company prosecuted an appeal to this court where the judgment of the municipal court was affirmed by another Division of this court. Ambassador Garage Co. v. Goldberg and Hummel, No. 37, 831 [281 Ill. App. 610 (Abst.)]. In the opinion in that case it was said: “In view of plaintiff’s utter failure to urge to this court any liability on the receiver’s part, it is unnecessary for us to discuss that question.” The court then proceeded to state by way of obiter dictum that expenses incurred in connection with personal property under the control of the receiver were chargeable only against the assets in the possession of the receiver. About three months after the opinion in that case was filed, the receiver, on September 21, 1935, filed his verified petition setting up that he was appointed receiver of the automobile July 30, 1930; that he qualified and took possession of it; that a final decree was not entered in the case until March 21, 1934; that by the decree it was adjudged that unless the defendants within three days pay complainant more than $11,000, together with interest and master’s fees, the Minerva automobile involved be sold for cash. The petition further sets up that the receiver was informed that no payment ivas made under the decree; that since his appointment he had stored the automobile in the Ambassador garage. It then sets up the two suits brought by the garage company in the municipal court and the result of them; that he received statements from the garage company for storage charges from July, 1930, to June, 1935-, the garage company claiming $18 a month for storage; that he had stored the car as “dead storage” and had not taken the automobile from the garage at any time, and that the charge of $18 a month as claimed by the garage company was exorbitant. The petition then set up disbursements made by the receiver totalling $126,- — $25 a year for annual premium on receiver’s bond for five years and $1 for certain certified copies. The prayer was that the court fix the reasonable amount of storage charges to which the garage company was entitled, and also fix the reasonable compensation of the receiver.

September 28, 1935, the garage company filed its verified answer in which it set up inter alia that the automobile was brought to the garage for “regular storage” and the customary charge was $18 to $25 a month; that prior to the appointment of the receiver, Goldberg, who placed the car with the garage company, paid $18 a month; that on August 4, 1930, Hummel, as receiver, notified it that he had been appointed receiver of the automobile, stating, “Please arrange to deliver this car to the bearer hereof, my duly authorized representative”; that the representative orally instructed the garage company to wash the car, saying he would be back for it in a few days; that on the same day the garage company sent a bill to the receiver for $18 for August, and continued to send bills to the receiver at $18 a month for approximately one year, and thereafter sent bills to him at the $18 rate every six months; that the receiver at no time made any objection to the bills but never paid anything ; that on February 13, 1931, which was about 6% months after the appointment of the receiver, it sent a letter to him stating that it had been presented with an order signed by him to deliver the car to his representative ; that the representative did not take the car; that the garage bill was increasing every month and it would like to have the matter “straightened up”; there was a statement enclosed with this letter in which a charge of $18 a month was made; that the receiver made no reply from August 4, 1930, until September 21,1935, when he filed his petition; that the automobile was always kept in regular storage and ready to be delivered at any time to the receiver; that it never received any notice to place the car in dead storage; that the charge for dead storage for the year 1930 was $18 a month; for 1931, $15 a month; for 1932, $15 a month ; for 1933, $12 a month; for 1934, $10 a month; for 1935, $8 a month. The answer claimed a lien for $1,116 for the storage charges on the automobile, pursuant to pars. 45-52, ch. 82, Ill. State Bar Stats. 1935.

After the petition and answer were filed defendant on November 13, 1935, sold the automobile for $355 cash and on November 27th filed his report of the sale. December 19, 1935, the order appealed from was entered. It recites that the matter came on to be heard on the report of the receiver in connection with the sale of the automobile; that due notice had been given to all parties, and that they were present by their counsel in open court, and after argument of counsel the court found that the reasonable amount of storage charges from July 30, 1930, to December 19, 1935, to which the garage company was entitled, was in excess of $355. The court further found that the amount to which the receiver ivas reasonably entitled for money advanced by him for expenses in connection with the receivership, for his fees as receiver, and for his attorney’s fees incurred, exceeded $355; and it was ordered that the $355 be divided equally between the garage company and the receiver.

Apparently no evidence was offered by the receiver to sustain the averments of his petition, nor was there any evidence offered by the garage company to sustain the averments of its answer to the petition, nor any evidence offered on the hearing of the receiver’s report of sale; but from a reading of the briefs it seems to be assumed by both sides that the averments of the verified petition filed by the receiver and the aver-ments of the garage company’s answer were true, and for the purpose of this decision we shall assume this to be the fact.

In this court the only contention made by counsel for the garage company is that the “Ambassador Gfarage Company is entitled to the garageman’s lien on the car for storage charges and the car should not have been sold except subject to such lien or the lien discharged by payment from the proceeds of such sale.” And in support of this, counsel rely upon par. 45, ch. 82, Ill, State Bar Stats, 1935, which provides that, “Every person, . . . who has . . . furnished storage for said chattel, at the request of its owner, ... or authorized agent of the owner, . . . shall have a lien upon such chattel beginning on the date of the commencement of . . . such storage . . . for the reasonable worth of . . . such storage. ’ ’ And the argument is that the $355 received for the automobile should have been decreed to the garage company, and counsel say, “It has never been the law that a receiver can store goods with a garageman and then defeat the right of such garageman to a lien under the statute by asserting a claim upon the chattel in favor of himself as receiver. No such exception or limitation on the lien is created by the statute.” Moreover, counsel says that this court in its opinion filed in case No. 37,831, before mentioned, expressly stated that the garage company “had and still has a superior lien on the car for its storage”; and that “there was at all times available for the presentation of its claim the Circuit court which appointed the receiver.”

We think this contention cannot be sustained. This court when it used the language above quoted in case No. 37.831, was not considering the question whether the receiver’s claim for fees and disbursements should be paid out of the proceeds of the sale before any payment should be made to the garage company. That question was in no way involved or considered. We think that where a receiver for an automobile is appointed, as in the instant case, and he takes possession of it, his costs and a reasonable allowance for his services must first be paid before the garageman’s lien is paid, provided he performs his duties efficiently.

In 1 Clarke on Receivers (2nd ed.) page 912, sec. 646, the author says: “Claims and judgments should generally be paid in the order of preference, which may be generally stated as follows:

First. Payment of court costs and payment to the receiver for his services in caring for the fund. The services of the receiver will generally include a proper charge for legal services rendered to the receiver.” Knickerbocker v. McKindley Coal Co., 172 Ill. 535; In re Hoffman v. A. Boynton, 79 Rep. New Series, Chancery Division, Law Journal, 1910, p. 247; see also Bauer v. Wilkes Barre Light Co., 274 Pa. 165, 24 A. L. R. 1171; Sloan & Zook Co. v. Lyons Refining Co., 290 Pa. 442.

No argument is made by counsel for the garage company that an allowance should not be made the receiver for his disbursements, or that the receiver should not be paid for his services because of any neglect on bis part in the performance of his duties, so we do not feel it proper for us to consider this question. But we think we ought to say the record discloses that the receiver was derelict in the performance of his duties. He obtained no authority from the court to pay the annual premium of $25 on his bond for a period of five years. The garage company was repeatedly sending him its bill for storage and yet he failed to bring the matte/ before the court so that he could receive instructions as to what should be done. As said in Atkinson & Co. v. Aldrich-Clisbee Co., 248 Fed. 134, 135, 136, “Receivers are bound to use the utmost care not to contract bills which they will be unable to pay from the property in their hands. The existence of such bills throws on the receivers a heavy burden to exonerate themselves from personal liability therefor, and a still greater burden to establish a right to compensation. The court itself has a duty to see that persons who deal properly with its officers get their money. ’ ’

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

Order affirmed.

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


text:
    Julius J. Janelunas, Appellee, v. Chicago Fraternal Life Association, Appellant.
    Gen. No. 38,805.
    Opinion filed June 29, 1936.
    Rehearing denied July 10, 1936.
    George C. Geier, of Chicago, and William A. L, Pellicore, for appellant.
    Walter F. Dodd and Earl J. Walker, both of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff, the beneficiary of a certificate for $2,000 issued by defendant September 1, 1930, to plaintiff’s mother, brought an action against defendant to recover the face of the certificate. There was a verdict and judgment in plaintiff’s favor for $2,460, being the face of the certificate with interest, and defendant appeals.

The record discloses that on August 27, 1930, Johanna Janelunas, plaintiff’s mother, made a written application for a beneficial membership in defendant association. She was examined by a physician and on September 1, 1930, defendant issued to her its certificate whereby she was acknowledged to be a member of the association and entitled to such rights and privileges as were provided in its constitution and laws, upon condition that the certificate, articles of incorporation, constitution and laws, the statements made in her application for membership and the statements made by her to the medical examiner should constitute the contract between her and defendant association; and on these conditions it promised to bind itself to pay her son, Julius J. Janelunas, $2,000 upon satisfactory evidence of the death of his mother provided she was in good standing at the time of her death. She died January 9, 1931, and the defense interposed was that in her application she had (1) falsely and incorrectly stated her age in that she stated she was born in 1871, while the evidence shows she was born in 1876, and (2) that she had falsely and incorrectly stated in her application for membership that she had never been rejected “by any other insurance company”; that the statements made by her were warranties, and the certificate was therefore void.

The evidence shows that Mrs. Janelunas was born in Lithuania; that she could not read or write the English language and could speak but very little English ; that the application in the record purports to be signed by her by her cross. In the application it is stated, “I do hereby warrant the truthfulness of the statements in this application, and consent and agree that any untrue statements made therein, or to the Medical Examiner, or any concealment of facts by me in this application . . . shall forfeit the rights of myself, my family and dependents to all benefits and privileges therein.” In the document in the record purporting to be the report of the medical examiner, it is stated, “for the purpose of securing beneficial membership in the Chicago Fraternal Association, do hereby expressly warrant the truthfulness of all the statements made by me herein, and of each statement and answer made by me to the questions in my Medical Examination, . . . and I do hereby consent and agree that each and all of said statements and answers shall form the basis of my membership in said Society and that any untrue or fraudulent statement or statements, or concealment or suppression of facts by me, whether they are material or not in my application for membership, my medical examination, or made to the Medical Examiner, . . . shall forfeit all rights, . . . benefit and privileges of myself, ... or beneficiaries named in any benefit certificate which may be issued from this agreement and application. ... I hereby warrant the truthfulness of all the answers given to the above questions. ’ ’

In the benefit certificate it was stated the insured, “is a member of said Society, and is entitled to such rights and privileges in the Society as are provided by its constitution and laws, upon condition that this Benefit Certificate, the articles of incorporation of the Society, the constitution and laws thereof, the statements made in the application for membership and the statements made to the Medical Examiner . . . shall constitute the contract between the member and the Society. ’ ’

Section 250 of the by-laws which was introduced in evidence by defendant on the trial provides: “If it shall appear that a member has made a mistake in giving his age at the time of admission, he shall make a written statement of the facts to the Supreme Secretary, and if satisfied that no fraud was intended, the age and payments of the member shall be corrected.

... If he reported his age older than he was at the time of admission, the difference between what he paid and the amount due for his correct age shall be refunded to him, and he shall thereafter be rated at his correct age. ... If understated, and not corrected, the member, or in case of his death, his beneficiary . . . shall be entitled only to the amount of benefit which the sum paid would have purchased at his correct age if eligible in this Society.”

On the trial the documentary evidence tended to show that Mrs. Janelunas was born in 1867 or 1869, 1871 or 1876,- but it is conceded by counsel for defendant in their brief that, “We will grant for the purpose of argument that the plaintiff has satisfactorily proven the correct date of the applicant’s birth to be June 23, 1876.” The by-laws provided that no one over 59 years of age was eligible for membership, but the purported application which is in the record, wherein the date of the applicant’s birth is stated to be June 23, 1871, would show that at that time she was 59 years, two months and four days of age and therefore ineligible, which facts obviously were known to defendant. But it being admitted that the applicant was born June 23, 1876, she was eligible for membership, and the only effect of giving the wrong age, if such were the fact, would be to vary the amount recoverable in case of her death, as provided by section 250 of the by-laws above quoted.

It is obvious that neither the applicant nor the defendant understood that the applicant was warranting the statements made by her in her application and in her answers to the medical examiner, because if they were technical warranties the certificate would be void, as expressly stated in the application and in the medical report. In the medical examination she was asked whether she ever had any of 67 specific diseases or ailments. It is obvious that defendant knew Mrs. Janelunas could not truthfully answer these questions, and it also- knew that no one, not even the most skilful physician, after a most searching examination, would be able to discover whether she had ever had any of these diseases or ailments. Obviously, it would be unreasonable to say the applicant and the defendant both understood that she was warranting the truthfulness of her answers. Minnesota Life Ins. Co. v. Link, 230 Ill. 273; Moulor v. American Life Ins. Co., 111 U. S. 335; Globe Mut. Life Ins. Ass’n v. Wagner, 188 Ill. 133. This is clearly shown by the fact that section 250 of the by-laws provides, not that the certificate should be void in case the applicant did not state her age correctly, but that in case of death the amount recoverable by the beneficiary would be based upon the correct age of the applicant.

A reading of (1) the benefit certificate, (2) the constitution and laws, (3) statements made by the applicant in her applicatipn, and (4) statements made by her to the medical examiner (which constitute the contract between the parties) taken in connection with the by-laws, clearly shows that the statements made by the applicant, although stated to be warranties, were understood and intended by the parties to be mere representations, and if they were not literally true the question of the good faith of the applicant in making her answers was for the jury. Joseph v. New York Life Ins. Co., 219 Ill. App. 452; Minn. Mut. Life Ins. Co. v. Link, 230 Ill. 273; Moulor v. American Life Ins. Co., 111 U. S. 335; Globe Mut. Life Ins. Ass’n v. Wagner, 188 Ill. 133.

Defendant further contends the evidence shows that the applicant, prior to the time she applied for membership in defendant association, made application to an insurance company and had been rejected, although the applicant stated to the examining physician of defendant association that prior to that time no physician had given an unfavorable opinion as to her health with reference to life insurance; that this answer was material and was false. Dr. Redman, called by defendant, testified he was a physician and surgeon, and in 1928 examined Mrs. Janelunas for the Western and Southern Insurance Co., and rejected her on account of an irregular heartbeat. On cross-examination the doctor testified he did not tell Mrs. Janelunas anything about what he found — “it is not my business to.”

Since we hold that the statements made by Mrs. Janelunas were representations and not warranties, the question of good faith — whether she had misrepresented that she had not been rejected by an insurance company — was for the jury.

The clerk has erroneously inserted in the common law record documents which he designates as instructions “refused” and instructions “given,” but at whose instance they were submitted does not appear. Nor is it anywhere stated that such instructions were all the instructions offered, given, or refused. The proper place for instructions under the Civil Practice Act, is in the report of the proceedings on the trial and not in the common law record. No question based on the instructions is saved. But if we assume the court instructed the jury, as counsel for defendant contends, that if they believed from the evidence that Mrs. Janelunas had, prior to the time she applied for the certificate, made application to some other insurance society and was rejected and that she intentionally failed to disclose such facts in her application to defendant association, the verdict of the jury should be for the defendant, then we would not disturb the verdict.

Defendant contends this instruction was clearly wrong, and in support of this the case of Helman v. Royal Neighbors, 207 Ill. App. 574, is cited and the opinion quoted from to the effect that if the answers to questions in the application for benefit insurance were warranties made a part of the contract, and were false in any particular, such falsities would void the policy whether material to the risk or not, however innocently made, and that it would not be necessary for defendant to prove that such answers were wil-fully and intentionally false, that they were relied upon by defendant, or were material to the issuance of the policy.

Since we have held that the answers made by the applicant were not warranties and were not intended to be such by the parties to the contract, the argument fails.

The judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

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