text:
    Rice-Stix Dry Goods Company, Appellant, v. C. A. Murphy and J. H. Burnett, trading as C. A. Murphy & Company, Appellees.

      Opinion filed June 1, 1928.
    Frank E. Trobaugh, for appellant.
    Ed M. Spiller, for appellees.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellant sued appellees to recover for goods sold and delivered in the sum of $864.78 and interest $29.32. Appellees filed the general issue and a notice of set-off in the sum of $2,066.45, which notice was amended by reducing the claim of set-off to $1,000. A jury was waived and the court found the issues in favor of appellees and rendered a judgment in their favor and against appellant for the sum of $174.95. In their brief and argument appellees say that $866.30 of the claim sued upon by appellant was for articles within the scope of the partnership and that no defense was sought to be made thereto. The whole controversy is as to the claim made by appellees as a set-off.

For several years, appellees, C. A. Murphy and J. H. Burnett, were partners and conducted a shoe store at Marion, Illinois. The business was conducted under the name of C. A. Murphy & Company. Mr. Burnett was president of a bank in the same city and Mr. Murphy was placed in charge of the shoe store as its active manager. The shoe store and the bank were located in the same block. While there is a conflict in the evidence as to the number of hours Mr. Burnett was in the shoe store each day, yet there is no question but that he went there two or three times a day and spent some time on each occasion. According to his testimony he paid no attention whatever to the business of the partnership and apparently knew nothing about it other than that he was a partner and that the firm had a deposit account with the bank of which he was president. He says he never examined the books of the firm and never saw the bills for goods purchased by the firm.

C. A. Murphy & Company was a customer of appellant for several years. Appellant is a wholesaler of shoes, ladies wearing apparel, etc. Appellees never sold anything in their shoe store other than shoes, hosiery and such things as are usually found in a store of that character. In 1919, Murphy & Company, through Mr. Murphy and some of the clerks in the store, gave appellant twelve orders for goods not usually carried in a shoe store to the amount of about $200. In 1920, eighteen orders were given for goods amounting to about $360. In 1921, twenty-six orders were given for goods amounting to about $500. In 1922, twenty-nine orders were.given for goods amounting to about $600, and in 1923, twenty orders were given for goods amounting to about $365. All of these goods were of a character not usually found in a retail shoe store. They were all paid for by C. A. Murphy & Co., in the regular course of business. During the same period a large quantity of goods usually found in a retail shoe store were also purchased by appellees from appellant and were paid for by the firm.

In the latter part of 1923, Mr. Burnett says he learned for the first time that Mr. Murphy had been buying goods in the name of the firm that were not kept for sale in the shoe store and that thereupon he demanded that Mr. Murphy turn the keys over to him and that he should not order any more goods. At that time appellees were owing appellant the bill sought to be recovered in this case. Under their notice of set-off appellees sought to recover the various sums of money which were paid to appellant by Murphy & Company for the goods purchased in the name of the firm but which were not within the apparent scope of the business.

Appellees insist that $2,066.45 of the firm’s money was paid for goods purchased by Mr. Murphy outside of the scope of the partnership business; that the' goods so purchased and paid for by the firm were really purchased for Mr. Murphy and his family and were used by them. They argue that such purchases and the use of the firm’s money to pay for the same were a fraud upon the partnership. The payments were made by Mr. Murphy, one of the partners. By claiming a set-off in this case appellees are in the same position as if they had sued appellant, in an action •at law, to recover partnership funds which had been fraudulently paid to appellant by one of the partners. That being true, they have misconceived their remedy, if any they have. Church v. First Nat. Bank of Chicago, 87 Ill. 68; Horner v. Bennett, 241 Ill. App. 134; Homer v. Wood, 11 Cush. (Mass.) 62; Jones v. Yates, 9 Barn. & Cres. 532.

In the case at bar, it does not appear that there has ever been an accounting between Mr. Burnett and Mr. Murphy. So far as the record shows, Mr. Murphy may be entitled on an accounting of the partnership matters to a much larger sum than is alleged to have been wrongfully paid by him to appellant. In the absence of an accounting it cannot be known whether Mr. Burnett has been injured by the payments in question. This was held to be a good defense to a bill brought by a partner against those who were paid partnership funds under somewhat similar circumstances. Davies v. Atkinson, 25 Ill. App. 260, aff’d 124 Ill. 474. Where the action was assumpsit, as in the case at bar, the same- defense was suggested by the court. Horner v. Bennett, 241 Ill. App. 134-144.

It seems to us that the negligence of Mr. Burnett in looking after his interests in the firm of C. A. Murphy & Company is inexcusable. By his negligence there was a course of dealings between his firm and appellant which would naturally lead appellant to believe that it was approved by him. A partner so careless of his own interests is not entitled to relief. Mr. Burnett placed Mr. Murphy in charge of the funds and property of the partnership as active manager. By so doing he made Mr. Murphy his agent with authority to bind him in all matters within the apparent scope of the partnership. By his negligence he permitted Mr. Murphy, for a period of four years, to exceed his authority as such agent. From such a course of dealing appellant would naturally believe that the purchases and payments made by Mr. Murphy were authorized by Mr. Burnett.

It has been held that where one of two innocent persons must suffer loss by reason of the wrongful act of a third party, the one who has made it possible, by his own negligence, for the third party to commit the wrongful act must stand the loss. Bartlett v. First Nat. Bank of Chicago, 247 Ill. 490; American Hominy Co. v. Millikin Nat. Bank, 273 Fed. 550. That rule was applied where a partner sought to escape liability for a debt contracted by another partner. Hayner v. Crow, 79 Mo. 293.

For the reasons aforesaid, the judgment is reversed and the cause remanded with directions to the county court to render judgment in favor of appellant and against appellees for the sum of $864.78.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice Barry

license: Public Domain

text:
    Albert Paul, Jr., Defendant in Error, v. National Accident Society, Plaintiff in Error.

      Opinion filed June 1, 1928.
    E. M. Lewis, for plaintiff in error.
    D. Gr. Hyle, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

No assignment of errors has been written upon or attached to the record as required by the rule of this court. We have frequently called attention to the fact that this is not a mere matter of form to be considered waived if not objected tó, but one of substance. The assignment of errors performs the same office in this court that a declaration does in a court of original jurisdiction, and is equally essential in the forming of an issue upon which the court can properly give judgment. It is not sufficient that the abstract of the record shows an assignment of errors, which is not written upon or attached to the record. No errors having been assigned on the record, there is and can be no joinder in error, and therefore no issue for this court to try. The cause having been submitted for final determination, it is too late now for plaintiff in error to obtain leave to assign errors upon the record or for the court fo require it to do so. The failure to assign errors on the record necessitates the dismissal of the writ of error, even though alleged errors are argued in the briefs. McAllister & Schroeder v. Weber Motor Car Co., 243 Ill. App. 530.

The errors set out in the abstract are to the effect that the court erred in not giving instructions offered by plaintiff in error and in refusing to grant a new trial. The abstract does not contain any of the instructions given or refused at the request of either party. Error cannot be predicated upon the rulings of the court in the giving or refusing of instructions unless all instructions are set out in the abstract. Thompson v. People, 192 Ill. 79; Reavely v. Harris, 239 Ill. 526.

The judgment in this case is small, and for that reason we have concluded to express our views, even though no issue is properly presented for our consideration. Plaintiff in error issued a policy of insurance, which, inter alia, contained the following provision: “If the insured shall be continuously confined to the house, not leaving it at any time or for any purpose whatsoever, and regularly visited therein by a licensed physician and be wholly prevented from transacting any and every kind of business solely by pneumonia (lobar) * * * the society will pay for such confinement, after the first seven (7) days, and not exceeding ten (10) weeks, a weekly indemnity of twenty-five dollars ($25.00).”

Defendant in error was taken ill with lobar pneumonia on January 11, 1926, and his illness continued for a period of 83 days, during which time he was under the care of a physician. When first taken ill he was at his home and was later removed to a hospital. It does not appear how long he remained there. Along about March 1, 1926, the doctor ordered that he b.e taken out for air because he was getting worse and it would do him good to get out. On nice days his wife and mother took him for a drive for about an hour and while on those trips he called upon the doctor at his office. The calls so made were under the direction and supervision of the doctor. The evidence aforesaid is undisputed.

Plaintiff in error concedes that defendant was entitled to 39 days benefit amounting to $139.28, but insists that the verdict should not be for a greater amount, because of the fact that he left the house upon the occasions aforesaid.

There is quite a conflict in the authorities bearing upon this question, much of which is, no doubt, due to the fact that the provisions under consideration in the various cases were not identical. Plaintiff in error cites three cases which strongly tend to support its contention. We think the weight of authority is to the contrary. Baker v. State’s Accident Ins. Co., 200 Ill. App. 473; Hines v. New England Casualty Co., 172 N. C. 225, 90 S. E. 131, L. R. A. 1917B 744; Stewart v. Continental Casualty Co., 141 Wash. 213, 250 Pac. 1084, 49 A. L. R. 960, and the cases cited therein and in the note following.

We are of the opinion that the cases last cited are more consonant with justice and fair dealing than those which take the contrary view. For the reasons first stated, however, the writ of error must be dismissed at plaintiff in error’s costs.

Writ of error dismissed.


author: Mr. Justice Newhall

text:
    School Directors of District No. 3, County of Clay, Illinois, Appellant, v. Leo P. Babcock et al., Appellees.

      Opinion filed June 1, 1928.
    James H. Smith, for appellant.
    John A. MacNeil, for appellees.
   Mr. Justice Newhall

delivered the opinion of the court.

This is a bill in chancery filed by appellant in the court below seeking to restrain the Board of Education of the nonhigh school district of Clay county from paying to Harter-Stanford Township High School District No. 99, of said Clay county, tuition for six pupils for the school year of 1927-1928 on account of said pupils’ attendance at said Harter-Stanford Township High School.

Demurrers were filed by all of the defendants to the bill, as amended, which were sustained by the trial court, and, the complainant electing to stand by its bill, the same was dismissed for want of equity, to which ruling the complainant excepted and this appeal is prosecuted.

The bill alleges that “District No. 3” embraces the territory within the limits of the village of Xenia; that the defendant, “District No. 99,” includes the city of Flora and land adjacent thereto, and is organized as a community high school, and is the only high school district in Clay county; that the remainder of Clay county is nonhigh school territory; that “District No. 3” maintains a three-year high school, being duly credited by the State Superintendent of Public Instruction; that it is about nine miles from the schoolhouse of “District No. 2” in the village of Xenia to. the school building of “District No. 99” in the city of Flora.

The bill further alleges that, under the provisions of section 96 of the School Law, as amended, Cahill’s St. ch. 122, ¶ 104, and in force July 7, 1927 (Session Laws 1927, page 806), if a recognized two or three-year high school is conducted in a township located in a nonhigh school district, any eighth grade graduate residing in such township, upon the approval of the county superintendent of schools, may attend a recognized high school “more convenient” in some district other than the township in which he resides, and his tuition shall be paid by the board of education of the nonhigh school district in which he resides.

The bill further alleges that six pupils, named in the bill, reside in complainant’s “District No. 3,” within four blocks of the schoolhouse; that, in going from their homes to the Flora school in “District No. 99,” they pass by complainant’s school, cross two railroads, and then, by way of concrete road, travel for about nine miles before reaching the Flora school; that the Flora school is not more convenient, or better adapted or more appropriate to the ease or comfort of the said pupils; that, prior to the beginning of the school year of 1927-1928, the said pupils represented to Leo P. Babcock, county superintendent of schools, that they desired to pursue studies not taught in “School District No. 3,” and the said county superintendent granted to said pupils a certificate of convenience and his approval for them to leave the complainant’s school and attend the defendant’s school at Flora; that the county superintendent’s action in approving and granting such transfer of pupils was illegal, and constituted a fraud and was an abuse of his official discretion; that it was not based upon any condition of convenience of any one of said pupils; that, if the nonhigh school district is permitted to pay to the defendant “District No. 99” the tuition of said pupils, the complainant “District No. 3” will suffer irreparable damages and injury.

The bill prayed that said pretended consent and approval of the county superintendent be declared null and void.

This case involves the construction of section 96, Cahill’s St. ch. 122, \\ 104, of “An Act to establish and maintain a system of Free Schools,” as amended by Act approved July 7, 1927 (Session Laws 1927, page 806), which reads as follows:

“§96. Upon the approval- of the county superintendent of schools any high school pupil may attend a recognized high school more convenient in some district other than the high school district in which he resides, and the board of education of the high school district in which said pupil resides shall pay the tuition of such pupil, provided, said tuition shall not exceed the per capita cost of maintaining the high school attended. If a recognized two or three year high school is conducted in a township located in a non-high school district, any eighth grade graduate residing in such township, upon the approval of the county superintendent of schools, may attend a recognized high school more convenient in some district other than the township in which he resides and his tuition shall be paid by the board of education of the non-high school district in which he resides. If no recognized two or three year high school is conducted in a township located in a non-high school district, then any eighth grade graduate residing in such township may attend any recognized two, three or four year high school, and his tuition shall be paid by the board of education of the non-high school district in which he resides.

“An eighth grade graduate in the meaning of this Act is any person of school age who gives satisfactory evidence of having completed the first eight grades of school work by presenting a certificate of promotion issued by the home school board, or by passing an examination given by the county superintendent of schools or by passing an examination given by the school attended.

“A recognized high school in the meaning of this Act is any public high school providing a course of two or more years of work approved by the Superintendent of Public Instruction.

“The tuition paid shall in no case exceed the per capita cost of maintaining the high school attended, excluding therefrom interest paid on bonded indebtedness, which shall be computed by dividing the total cost of conducting and maintaining said high school by the average number of pupils enrolled, including tuition pupils.

“Approved July 7, 1927.” (Session Laws 1927, p. 806; Smith-Hurd, p. 2319.)

Counsel for appellant contends that the proper construction to be given the said section 96 is that pupils residing in a township, having completed their eighth grade work, shall be compelled to attend such high school as is located in their home township, unless, by reason of physical location of their respective homes, it is nearer for them to attend a high school in an adjacent township, in which event the county superintendent of schools may grant a certificate of convenience to such pupil for attendance out of his home township.

Prior to the passage of the Amendment of 1927, under the law as it formerly existed, a pupil residing in a high school district, and desiring to attend another was required to have the approval of the county superintendent of schools. But a pupil residing in a non-high school district was not required to have such approval, with the result that any such pupil residing in a nonhigh school district could attend anywhere in the State a recognized high school, and the nonhigh school district, where the pupil resided, became chargeable with his tuition. Apparently to remedy this situation the present amendment was enacted, which providés that a pupil residing in a nonhigh school district is under the same restriction and subject to obtaining the approval of the county superintendent, as is required of a pupil in a high school district seeking to be transferred to another district.

The proper construction of the words “more convenient” and the extent of the county superintendent’s authority were passed upon by the Supreme Court in construing section 96, as it existed prior to the present amendment, and in the case of Board of Education of Drummer Tp. High School Dist. No. 118 v. Board of Education of Sibley Community High School Dist. No. 115, 323 Ill. 152, on pages 157 and 158, it was said:

“The circuit court heard evidence on the question of whether or not appellee’s school was more convenient to the pupils than appellant’s school, and construed the words ‘more convenient’ to mean ‘nearer to,’ and-then held that appellee could only recover the tuition of such of said pupils as were actually nearer to appellee’s school than to appellant’s school, and gave judgment accordingly. The statute aforesaid designates the county superintendent of schools as the party whose duty it is to determine the question of convenience and as the one to say what high school is more convenient to such high school pupils. The statute made him a ministerial officer for that very purpose, and his decision as such ministerial officer is valid and binding and cannot legally be disturbed in a collateral proceeding by any court in the absence of any showing of fraud. The circuit court should therefore not have concerned itself with the question of whether or not appellee’s school was more convenient for such pupils than that of appellant’s, as there was absolutely no claim of fraud in the obtaining or in the making of the ministerial officer’s decision.

“We think it is also error to construe the words of the statute 'more convenient’ to mean 'nearer to.’ The ministerial officer aforesaid may find many reasons for correctly deciding that a high school is more convenient to a pupil than his own school although his own high school may be very much nearer to his residence.

“It is the intention of the legislature that all pupils in this State shall have the opportunity of a high school education, and when for any reason a pupil is inconvenienced by including him in a non-high school district or in a high school district, it is his privilege to attend the high school that is more convenient to him when he has obtained the proper authority therefor, and there is no provision in our constitution that gainsays the right of the legislature to give the pupils of this State that privilege.”

To the same effect are the decisions in Board of Education of Princeton High School Dist. No. 500 v. Board of Education of Wyamet Community High School Dist. No. 510, 314 Ill. 83, and Proviso Tp. High School No. 209 v. Oak Park and River Forest Tp. High School Dist. No. 200, 322 Ill. 217.

In view of these decisions, we are of the opinion that, under the allegations of the bill in the case at bar, it is not within the province of the' courts to' determine what high school is the more convenient for the pupils of “District No. 3” to attend, but this discretion has been placed by the legislature in the county superintendent. If, as alleged in the bill, the county superintendent gave his approval to the transfer of the pupils, because of their desire to pursue certain studies not taught by their home school, this would, in effect, be exercising the discretion invested in him by the legislature to determine those things that might facilitate their convenience to obtain promptly and expeditiously a thorough and efficient schooling.

The statute provides that the tuition of an eighth grade pupil, who resides in a nonhigh school district, and who attends any recognized high school, must be paid by the board of education of the nonhigh school district in which he resides; and the directors of the common school district, where the pupil resides, are not liable for the tuition. (Weatherford v. School Directors of Dist. No. 7, 317 Ill. 495.)

While it is true that appellant may maintain a three-year high school, yet the expense thereof is borne and paid for by the nonhigh school, and, whether there are ten or twenty pupils, it would not change appellant’s financial obligations so far as its taxes as a common-school district are concerned.

The bill charges that the county superintendent fraudulently granted his certificate of convenience for the transfer of pupils from “District No. 3” to “District No. 99.” It is evident that this charge is made upon the apparent theory that the county superintendent had no legal right to exercise his discretion, except in compliance with a strained and narrow construction of what is meant by the words “more convenient” as used in the statute. There are no facts pleaded from which the logical conclusion can be drawn that he acted otherwise than in the exercise of an honest and conscientious opinion. We are of the opinion that the bill fails to state any facts which shoiy fraud, collusion or oppression, and, under such circumstances, where public officials are invested with discretionary powers, a court of equity will not interfere to control or review the exercise of the power. (School Trustees v. School Directors of Dist No. 2, 190 Ill. 390, 393.)

The decree of the court is accordingly affirmed for the reasons above set forth.

Decree affirmed.


text:
    John Beverly Moore, Appellee, v. Black Star Coal Company, Appellant.
    Opinion filed June 1, 1928.
    Moses Pulverman, for appellant.

      T. G-. Lewis, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

Appellee brought suit in an action of assumpsit against appellant to recover for medical services furnished certain employees of appellant. Appellee pleaded nonassumpsit, and the case was heard before the court under a stipulation of agreed facts. Propositions of law were submitted by appellant and all marked “refused” by the court. Judgment was rendered for $999.40 by the court in favor of appellee.

The stipulation of agreed facts is, substantially, as follows: Between January 1, 1923, and July 1, 1925, the coal company (appellant) owned and operated a mine at Logan, Illinois, and carried employer’s liability insurance under the Workmen’s Compensation Law of Illinois, the insurance carrier being a duly authorized and licensed organization; that proof of the carrying of such insurance as required by the act had been filed with and approved by the Industrial Commission ; that under the contract between the insurance carrier and the coal company, the coal company paid certain premiums for such insurance and the insurance carrier agreed to pay all-compensation due employees of the said coal company for accidental injuries under the Compensation Act, and to do all other things with reference to the payment of such compensation which it would have been incumbent upon the coal company to do as such employer in the absence of such insurance contract; that all compensation matters and all claims for compensation were in the charge of and handled exclusively by the insurance carrier, without any direction or control of same by the coal company; that during such period Dr. Moore (appellee) at the request of the insurance carrier, through its officers and agents, rendered medical, hospital and professional services to a large number of employees of the said coal company, who were injured while in its employ; and as to each of said cases made his reports and rendered his bills covering same direct to the insurance carrier; that the insurance carrier during such period had paid compensation to a large number of the mine employees, including medical bills; that the bills rendered by Dr. Moore to the insurance carrier were paid in due course, except the bills shown by Exhibit A attached to the stipulation and aggregating $999.40; that all of such services were rendered in connection with the necessary treatment of injuries sustained by such parties while in the employ of the coal company; that on or about July 1, 1925, the insurance carrier became insolvent and failed to pay the bills listed on said exhibit; that such sum of $999.40 is still due and owing; that no proceeding has been filed before the Industrial Commission by Dr. Moore to recover payment of the said bills, or any part thereof; that in each of the said cases claim for compensation was filed by the injured employee before the Industrial Commission against the coal company, and that an award of compensation was rendered therein in accordance with the Compensation Law and was fully disposed of at the time of the filing of this suit, such award, however, not including the medical bills of appellee; that at the time these medical services were rendered appellee knew that the injured employees had been so injured while in the employ of the coal company, and that the coal company was carrying insurance with said Associated Employers Reciprocal.

The stipulation recited that the agreed facts should be taken as being all the evidence in the case, and that the ultimate point to be determined was the legal liability of the coal company to appellee for the medical services rendered, either under the terms of the Workmen’s Compensation Act or under the laws of Illinois.

Appellant contends that under these agreed facts the employment of appellee was simply a contract between appellee and the insurance company, and that there is no provision in the Workmen’s Compensation Act which could be construed to hold the coal company liable for medical services furnished its employees by appellee.

On the other hand, appellee contends that section 8, paragraph “A” of the Workmen’s Compensation Act, Cahill’s St. ch. 48, H208(a), which provides that an employer shall provide the necessary first aid and medical and surgical services for an injured employee, enjoins a statutory duty upon the employer; and that the liability, thus imposed, can only be discharged by providing such services or by paying for such services to the physician, who may have furnished the same.

It is further contended by appellee that the insurance carrier, who undertook for a stipulated premium to pay all compensation accruing to the coal company’s employee, acted as the agent of the coal company in the discharge of the employer’s obligations to its employees under the Compensation Act.

The stipulation of agreed facts recites that all claims for compensation for injuries incurred or sustained during the insurance period were in charge of and handled exclusively by the insurance carrier, without any direction or control of same by the coal company; that appellee, by and at the request of the insurance carrier, furnished the services in question, made his reports, and rendered his bills for such services direct to such insurance carrier; that, in accordance with said insurance contract, the insurance carrier paid compensation to a large number of employees of the coal company, including the payment of medical services in connection therewith, .and that the bills rendered by appellee to the insurance company for such medical services were paid in due course by the insurance carrier, except the bills in question.

These facts, considered in connection with the entire stipulation, clearly show that the insurance carrier was acting as an independent contractor, as between the coal company and appellee, and that there was no such relation of principal and agent, which, would legally obligate appellant to pay or carry out the insurance carrier’s contract with appellee.

The employment of appellee was by the insurance carrier, without direction from and not subject to the control of the coal company. The coal company was not a contracting party as to such employment, and appellee must look to the insurance company for such damages as he might sustain for or on account of the insurance carrier’s breach of contract.

Counsel claims that a fair construction of the Compensation Act will enable appellee to recover from the coal company the unpaid bills for medical services which he rendered to the employees of the coal company at the request of the insurance carrier.

Section 8, Paragraph “A,” of the Compensation Act, provides that an employer shall provide the necessary first aid and medical and surgical services, which are reasonably required to cure or relieve the employee from the effects of the injury which he has sustained in the course of his employment.

It is clear that an injured employee is entitled, under the law, to medical services, and, if the employer fails to furnish the same, then the injured employee may procure such services himself, and may recover the reasonable value of the same in his compensation proceedings, in addition to the amount the statute provides for the injuries suffered. The Compensation Act provides for compensation and payment to the employee injured and to no one else. (Edwards v. Centralia Coal Co., 227 Ill. App. 453.)

The liability of the employer does not extend beyond the provisions of the Compensation Act, where an action is based on the duties of the employer under the act. (Hill v. Kerens-Donnewald Coal Co., 210 Ill. App. 560.)

The provisions of the Compensation Act are binding upon the employees electing to be bound by them, and upon none others. All, except employers and employees, are strangers to the act, and their usual lawful rights and remedies are unaffected by it. (Augustus v. Lewin, 224 Ill. App. 376.)

The Compensation Act of Minnesota contains similar provisions relating to medical services as is contained in the Illinois Act, and, in the case of Beach v. Gendler, 148 Minn. 421, 182 N. W. 607, a like construction of the Minnesota Act was given, which follows the reasoning of the foregoing Illinois cases.

In Goodman Mfg. Co. v. Industrial Commission, 316 Ill. 394 (396), it was said by the court: “It has been repeatedly held by this court that the furnishing of medical, surgical and hospital services must be regarded as the payment of compensation under the Workmen’s Compensation Act.”

In the instant case, the insurance carrier furnished medical services to the coal company’s employees by its own independent contract with appellee. So far as the employees were concerned, their right to compensation by way of medical services was furnished and their claim in that respect has been fulfilled and satisfied.

The only implied obligation arising out of the terms of the statute is for the sole benefit of the employee, who alone is entitled to complain if his employer does not furnish medical services when requested by such injured employee.

We are of the opinion that the trial court erred in refusing appellant’s propositions of law numbered two, three and four. ,

Accordingly, the judgment of the circuit court is reversed with finding of facts.

Judgment reversed with finding of facts.

The clerk will insert the following finding of facts in the judgment, viz: The court finds that appellee had no valid contract with appellant, and that appellee failed to prove the material allegations of his declaration.


text:
    Lazo N. Peyovich, Appellee, v. Workmen’s Sick and Death Benefit Fund of the United States of America, Appellant.

      Opinion filed June 1, 1928.
    E. M. Spiller, for appellant.
    Ray D. Henson and D. L. Duty, for appellee.
   Mr. Justice Newhall

delivered the opinion of- the court.

This is an action of assumpsit by appellee against appellant on a benefit certificate issued to him on March 25, 1926. The certificate recites that it, together with the charter, by-laws and application for membership signed by appellee, should constitute the agreement which, by its terms, became effective April 1, 1926. After trial before a jury, a verdict for $900 in favor of appellee was rendered. Motion for a new trial was overruled, and judgment entered on the verdict.

The declaration consisted of a special count alleging that appellant issued the benefit certificate whereby it insured the life and health of appellee, and promised to pay, in the event of sickness of appellee, at the rate of $15 per week for the first period of 40 weeks and $7.50 per week for the balance of the time of appellee’s illness, until the aggregate sum of $900 should be paid. The declaration further avers that appellee became sick March 26, 1926, and continued thereafter to remain sick, and that the full amount of $900 was due; that appellant had due notice thereof, and that appellee had pursued all the remedies offered a member in the courts of appellant. The common counts were filed with the special count.

Appellant filed a plea of nonassumpsit, and a stipulation was entered into between the parties, whereby it was agreed that the case,should be tried on the pleadings filed, and that appellant on the trial might rely upon any and all defenses that could be legally interposed in the case by any and all special pleas, or other pleadings which might be specially pleaded, and that both parties might introduce any and all evidence under any and all pleadings, and that appellant might rely upon any and all defenses that might or could be legally interposed in said cause by any and all special pleas or other pleadings, which might or could be specially pleaded.

Appellee testified that in February, 1926, he made application to appellant, at West Frankfort, for the benefit certificate in question; that he was examined by Dr. Alberts; that he was a Servian by birth; that he had resided in the United States 14 years; that he could converse in and understand but could not read or write the English language; that the chairman of the local lodge of appellant filled out his application when the questions were first read to the witness by him; that he answered “Yes” in response to the question as to whether he had ever been rejected by any other similar organization, and claims that he was told by the chairman to say “No” in response to the question, and he admitted that he did finally answer “No”; that he paid the necessary fees for joining the lodge; that on April 18, 1926, in response to a letter received on April 13, 1926, he attended a lodge meeting, because there was a charge made against him that he had been rejected by a Slavish lodge in Chicago; that at this meeting he told the committee of the lodge, who were hearing the complaint of the secretary about his falsifying his answers to certain questions in the application, that he had told the chairman that he had been rejected by the Slavish lodge; that he stayed until the meeting of the committee was adjourned; that he left West Frankfort on the afternoon of April 19,1926, to go to New Mexico on the advice of Dr. Alberts; that he became ill March 19, 1926, was confined to his home for a few days, went to New Mexico on April 19, 1926, for the purpose of regaining his health, and remained there about a year, unable during all the time to work at his trade on account of the illness of his lungs; that, while in New Mexico, he received a written notice, dated April 29, 1926, advising him that he had been expelled from the lodge by the action of the local Branch Executive Board, and that, if he desired to appeal this decision to the branch meeting, to be held May 16, 1926, the appeal should be in the hands of the secretary at least three days before the meeting to be held May 16, 1926.

Dr. Alberts testified in behalf of appellee that he was the local examining physician for appellant; that he examined, medically, appellee for admission to the appellant’s local lodge; that later he was called by appellee, when he became ill in March, 1926; that appellee then had a hemorrhage, which came from the nose or throat; that he kept blanks upon which to make reports of sickness.

Appellee and Dr. Alberts were the only witnesses who testified for appellee, and there was admitted in evidence, on behalf of appellee, the benefit certificate, charter, by-laws, and constitution of the lodge, as pleaded in the declaration.

The witnesses for appellant consisted of the chairman, secretary and treasurer of the local lodge of appellant, who constituted what was known as the Branch Executive Board, who, in the first instance, under the rules of the lodge, had jurisdiction to expel a member, when at the time of his admission he made false statements or did not truthfully answer the questions contained in the application blank.

These witnesses testified, in substance, that at a regular meeting of the lodge held on February 21, 1926, appellee was present, and the chairman read to him the entire application and all the questions thereon; that question No. 12, reading, as follows: “Have you ever been rejected as an applicant for membership by any other benefit society or life insurance company,” was asked of appellee and he replied, “No.”

Appellee declared, by the questions contained in the application, that his application was true and correct, and pledged himself not to claim any benefit or to commence any lawsuit against the society, if it should be proven his answers were untrue, or if he should be expelled from the society for violation of its laws; that after the benefit certificate had been issued, information was received by the secretary that appellee’s answers to the questions were false; that, pursuant to the laws of appellant, the secretary preferred charges against appellee for making these untruthful answers ; that due notice was given to appellee of such charges, and, after a hearing before the Branch Executive Board, on April 18, 1926, at which appellee was present, the board adjourned to April 19, 1926, and then rendered its decision expelling appellee from membership in the society, of which decision appellee was duly notified by letter within ten days, and was then advised that he had a right to appeal from the action of the Branch Executive Board to the branch meeting of the lodge to be held on May 16, 1926, provided the appeal was made by appellee within three days before the meeting to be held on May 16, 1926.

Appellee did not attempt to file any appeal with the local branch at any time prior to commencing the present suit; that he never filed with the local branch a physician’s certificate with reference to his illness and inability to work, which was required of him by the provisions of the by-laws; that the by-laws required members, who were ill and unable to work, to furnish a certificate of a physician recognized by the local or national board, and that no member should be entitled to sick benefits prior to the time of furnishing the physician’s certificate.

Appellant contends that the evidence shows that appellee was legally expelled from the local branch; that he did not prosecute any appeal, as provided for in the society’s by-laws; that his expulsion became final and his certificate was void at the time of the commencement of his suit.

In Benes v. Supreme Lodge Knights and Ladies of Honor, 231 Ill. 134 (139), it is said:

“Persons belonging to a mutual benefit association, or a fraternal beneficiary society, as it is denominated by our statute, are conclusively presumed to know what the provisions of the laws adopted by the association are, where such laws are a part of the contract of insurance. Such an association is founded upon the mutual rights and obligations of all its members, and if a beneficiary could be permitted to recover in a manner other than according to the written terms of the contract which those insured enter into, mutuality among the members would soon cease.”

To the same effect is the case of Noel v. Modern Woodmen of America, 61 Ill. App. 597 (599), where the court, in an opinion by Justice Cartwright, said:

“One of the conditions of the contract sued on was that if the member holding the certificate should be expelled from his local camp, which was the local branch of the order, the certificate should be null and void and all moneys paid and all rights and benefits accrued should be absolutely forfeited. The defense made at the trial was that plaintiff’s husband had been so expelled for being a * * * saloon bartender, and for drunkenness. * * * The proceeding which resulted in the expulsion was quasi judicial in its character, and if the local camp, which under the by-laws of the order constituted the court, had acquired jurisdiction, its judgment pronounced in good faith was binding. * * * Unless set aside by a direct proceeding for that purpose, such a judgment is of undoubted validity.”

Applying the principles of the above authorities and cases cited therein, it is clear that appellee is not entitled to maintain his suit, because, by reason of his misrepresentations and acts and the subsequent action of the local branch board, he was not a member of the society at the time of the commencement of his suit, and had forfeited all his rights therein.

From the record there can be no serious doubt the constitution and by-laws plainly provided for a trial where charges were preferred against a member; that a lawful board was constituted to try such member, and that its decisions should be final if not appealed from in the manner provided by the society’s laws.

Sufficient legal charges were made against appellee, which, if true, would warrant his expulsion. Expulsion did follow after a hearing at which appellee was present and participated. Appellee did not appeal to the higher authorities named in the by-laws, although given ample opportunity to do so, and the decision of the branch board thereby became final. Becoming final by reason of appellee’s failure to prosecute the remedies, which he assumed when he became a member, he cannot now complain that his negligent failure to pursue his right of appeal nullified his certificate, and precludes him from recovering thereon in the courts.

Counsel for appellee contend that appellant is not entitled to claim this defense in this suit, because of failure of appellant to file a plea in abatement, but we are of the opinion that the stipulation was broad enough to permit this defense; and this question is now raised for the first time in this court, and was not urged in the trial court.

If appellee, at the time of the commencement of his suit, had forfeited his rights under the certificate issued to him, then such was an absolute defense, which could be raised by special plea or by evidence offered pursuant to a stipulation which waived any special pleadings on the part of the defendant.

It is also urged by appellee that appellant, by its acts, waived the right to forfeit appellee’s certificate, and that it misled appellee, and prevented him from ascertaining his rights. The claim is also made that Dr. Alberts, the lodge’s local physician, and the officers told appellee to go to New Mexico, and that appellee would be taken care of. We have given careful consideration to this claim, and are of the opinion that the evidence does not sustain appellee in these claims, but, on the contrary, the preponderance of the evidence shows that appellant acted in good faith toward appellee in all of its transactions and proceedings.

The further contention is made by appellant that appellee was not entitled to recover sick benefits until appellee furnished a physician’s certificate as to his illness, as required by the by-laws of the lodge. The by-laws made it obligatory upon appellee to furnish a physician’s certificate of sickness as a condition precedent before he would be entitled to sick benefits from the lodge, and, in the absence of any evidence, which would warrant a waiver of this requirement, we are of the opinion that this provision was not complied with. The burden of proof was upon appellee to show facts and circumstances, which excuse his performance of this duty required of him, and the . record does not disclose that appellant by its conduct waived this requirement.

We are of the opinion that appellee failed to comply with the terms of the contract set out in his declaracion, and accordingly, for the reasons herein set forth, the judgment of the county court is reversed.

Reversed with finding of facts.

The clerk will incorporate in the judgment the following finding of facts: The court finds that appellee failed to comply with the terms of the contract set out in his declaration; that he had no valid contract with appellant at the time of the commencement of his suit.


author: Mr. Justice Wolfe

text:
    Yoland Pardon, Individually and as Executrix of the Last Will and Testament of Anna Wasvary, Deceased, Plaintiff in Error, v. Joseph Wasvary and The American Insurance Company of the City of Newark, New Jersey, Defendants in Error.

      Opinion filed June 1, 1928.

      H. F. Knox, for plaintiff in error.
    Layman & Johnson, for Joseph Wasvary, defendant in error.
    Charles Wham and Moses Pulverman, for The American Insurance Company, defendant in error.
   Mr. Justice Wolfe

delivered the opinion of the court.

This suit was brought in the circuit court of Franklin county by Anna Wasvary, who filed her bill against her former husband, Joseph Wasvary, and The American Insurance Company of the City of Newark, New Jersey. After the bill was filed Anna Wasvary died, and her daughter, Yoland Pardon, as the administratrix of the last will and testament of Anna Wasvary, deceased, and also individually (she being the sole legatee and devisee under the said will), was substituted as complainant in the lower court, and appears in this court as the plaintiff in error.

During her lifetime, Anna Wasvary and her husband, Joseph Wasvary, were the owners as tenants in common of a 9-acre tract of land located in or near Sesser, Illinois, and on which was situated their dwelling house and a barn, or shed.

• Before the filing of the bill Anna Wasvary had applied for a divorce from her husband. A hearing was had on the bill August 6,1923 and the court announced that a divorce would be granted, but a decree was not signed until December 1, 1923.

Several years before the divorce was granted the said insurance company had issued, through its farm department, and had delivered to Joseph and Anna. Wasvary, its insurance policy agreeing to indemnify them against loss by fire to the extent of $1,700 on the dwelling house a-nd barn and $500 on their household effects while located in the house. On August 19, 1923, the building and the household goods then in the house were damaged by fire.

The bill is for the partition of the lands and prays that the money due under the said policy by reason of the destruction of the property insured to the value of $2,000 may be decreed to stand in the place and stead of the property destroyed and paid into the court as a fund to be distributed by the court according to the respective rights and interests of the parties therein as the same should be found and determined by the court. A copy of the insurance policy is attached to the bill and made a part thereof. One of the provisions of the policy is, in substance, as follows : In case of loss the insured shall within 15 days give the company, at its office at Eockford, Illinois, written notice thereof; shall within 60 days from date of loss render to its office aforesaid a particular account of said loss, signed and sworn to by the assured, stating the date and circumstances of the same, the exact nature of the title and interest of the assured, and of all others in the property; shall furnish the company with an itemized statement of personal property, and the plans and specifications, and an itemized estimate of the building by some reliable and competent builder, and furnish a certificate of two disinterested neighbors and of the nearest magistrate, certifying their belief that the statements are true, and that the assured has, without fraud, sustained the amount of loss set forth in said proofs, otherwise said company shall not be liable.

The bill alleges as follows: That said insurance company waived written notice of fire to be given it at Eockford, Illinois; waived rendering it at said office a particular account of the loss signed and sworn to by assured, stating the date and circumstances of the fire, the exact title and interest of assured and all others, by whom and for what purpose same was occupied at time of loss and all incumbrances on said property; waived filing itemized statement of personal property destroyed, and plans and specifications and itemized estimate by a reliable and competent builder, of the building destroyed, with the certificate of two disinterested neighbors and the nearest magistrate certifying their belief that such statements were true and the loss without fraud.

The answer of the defendant insurance company denied each of said allegations contained in said bill. The answer of the defendants Joseph Wasvary admitted all the material allegations of the bill. Upon a hearing on the bill in open court before the chancellor, the bill was dismissed for want of equity as to the defendant insurance company. Unless the evidence establishes the above allegations of appellant’s bill she failed to make out a case and therefore other points in controversy between parties and now urged in this court need not be considered by this court.

Bearing on the question -of the waiver of the proofs of loss, the contention of the parties is whether or not the evidence shows that one W. C. Sulcer was clothed with the apparent authority to waive such proofs of loss for and on behalf of the insurance company. It is not contended by appellant that W. C. Sulcer was by any written or express power of appointment empowered to waive the proofs of loss. It will, therefore, be necessary to consider the evidence to determine if the defendant insurance company held out W. C. Sulcer to the public as its agent, possessing apparent power to waive the provisions of the policy requiring the furnishing of such proofs of loss. The question in this kind of a case being not what power did the agent in fact possess, but what power did the company hold him out to the public as possessing. Hancock Mut. Life Ins. Co. v. Schlink, 175 Ill. 284,

To show the' express powers and authority with which Sulcer was invested by the insurance company there was introduced in evidence a certificate of his appointment given by the insurance company. So much of this certificate as needs be referred to in this opinion is as follows: “This is to certify that W. C. Sulcer has been appointed and duly constituted agent of the American Insurance Company of Newark, New Jersey, and authorized to receive and transmit to the company written applications for insurance against loss or damage by fire, etc., together "with the notes or cash for premiums and for no other purpose whatever, subject to the rules and regulations of said company and such instructions as may be given from time to time by its officers.” The extent of Sulcer’s agency being an issue in this case, we think that the certificate was proper and competent evidence. The appellee having shown by her evidence some facts tending to show the agency of Sulcer, it was incumbent on the insurance company to introduce such evidence as was in its exclusive possession proving, or tending to prove, the extent of Sulcer’s agency. McGuire v. Hartford Fire Ins. Co., 7 App. Div. 575, 40 N. Y. Supp. 300; Cupo v. Royal Ins. Co., 101 Conn. 586, 126 Atl. 844.

Appellant contends that the defendant insurance company by its acts and dealings with Sulcer invested him with, and held him out to the public as possessing, more authority as its agent than what is contained in such certificate. This is denied by the insurance company. The existence and contents of the certificate were not shown to the insured, the appellant or those representing them until the time of the trial.

Joseph Wasvary testified that Sulcer came to his home and asked him to insure his house and Wasvary signed an application for the insurance, gave to Sulcer in payment of the premium an old unexpired policy of the defendant insurance company and some money. Within a week thereafter he received a policy by mail from the office of the insurance company at Rockford, Illinois. August Pardon testified that he knew Sulcer who solicited and wrote application blanks, gave the policy and received the money. Pardon said he knew this because he had had property insured by Sulcer who wrote out the application, delivered to him the policy and received the money.

The trial court admitted this evidence subject to objection. We think this evidence is competent and it is considered in this case. (Grindle v. Grindle, 240 Ill. 143; Booker v. Booker, 208 Ill. 529, 535.)

Sulcer testified on direct examination that he in person delivered the policy to Joseph Wasvary, but on cross-examination he testified that his register showed the premium charged to Wasvary and he was ' not sure if he delivered the policy or not. He further testified that his general practice on farm insurance was to forward the application, collect the money and leave the delivery of the policy to the company. However, on insurance upon city property Sulcer would deliver the policy in person. From Sulcer’s testimony it appears that the property insured for August Pardon, and about which the latter testified, was an automobile, and his testimony relative to the making of the application for the insurance on the automobile, the delivery of the policy by Sulcer and the payment of the premium on the policy is corroborated by Sulcer. The automobile insurance policy was introduced in evidence and the appellant points out as facts showing, as he contends, the apparent power of Sulcer, in certain portions of that policy. On the front page of said policy appears: “Important: Agents must sign the policy and make the entry on their register, without fail, in order to comply with the State Law. ’ ’ Also there appears on the policy: ‘ ‘ Countersigned at Residence this 21st day of Sept., 1921, W. C. Sulcer (Agent).” Attached to the Pardon policy are also indorsements, being tornado and theft clauses, which are signed “W. C. Sulcer, Agent.” And these indorsements also have the statement, “Issued at Sesser, Illinois, Agency.”

Sulcer testified that he was merely a soliciting agent, that the Pardon policy, being insurance on an automobile, did not come under the farm department of the defendant insurance company. The examiner for. the insurance company testified "that an application for insurance on farm property came to him for inspection and, if approved, a policy was issued, and that this method was followed in issuing the Wasvary policy, and the policy in question was mailed from the office of the Illinois Western Department of the insurance company to the applicant.

H. R. Dial, a lawyer, testified that shortly after the fire Anna Wasvary retained him as her attorney to look after her claim against the insurance company under the fire insurance policy. Mr. Dial consulted Sulcer about the proofs of loss and Sulcer told him it would not be necessary to make out the proofs of loss as he had the right and had already notified the company. Sulcer also told Dial that he was not a recording agent, just a soliciting agent.

Yoland Pardon testified that she knew Sulcer represented the insurance company because she heard him talking to her parents about taking out the insurance; that she and her brother went to see Sulcer and told him that the house had burned down, inquired what they should do about the insurance, and Sulcer said they would not have to do anything, he would tend to that.

There is no evidence proving that Anna Wasvary, Yoland Pardon, or Mr. Dial, or any of them, ever knew that Sulcer had countersigned and issued an automobile insurance policy.

The written appointment of Snlcer limits his authority to receive and transmit applications for insurance to the insurance company together with cash or notes given for premiums, and he was without power to issue policies or complete contracts of insurance. He was a soliciting agent only. A soliciting agent has no power to waive provisions and conditions of the policy. His authority does not extend beyond the business necessarily connected with the taking of the applications and forwarding them to his principal. (American Ins. Co. v. Walton, 111 Ill. App. 133; Rockford Ins. Co. v. Boirum, 40 Ill. App. 129; American Cent. Ins. Cor v. Birds Building & Loan Ass’n, 81 Ill. App. 258; Winnesheik Ins. Co. v. Holzgrafe, 53 Ill. 516; Rowland v. Springfield Fire & Marine Ins. Co., 18 Ill. App. 601; Covenant Mut. Ben. Ass’n v. Conway, 10 Ill. App. 348; Forest City Ins. Co. v. School Directors of Dist. No. 1, 4 Ill. App. 145; Eikelberger v. Insurance Co. of North America, 105 Kan. 675, 189 Pac. 139; Merchants’ & Planters’ Ins. Co. v. Marsh, 34 Okla. 453, 125 Pac. 1100.) The latter case cites authorities from 15 states in support of this general proposition. The same rule is stated in 26 O. J. 289. In other words it was not within the scope of Sulcer’s express power to waive the provision of the policy requiring proofs of loss. Even if he assumed to have such authority he could not bind the company thereby, unless he had been held out by the insurance company as an agent under such circumstances as would warrant the insured, and, in this case, her attorney and legal representative, in supposing that he had the power so assumed. (Covenant Mut. Ben. Ass’n v. Conway, supra.)

Where one relies upon the acts of an agent on the ground that the principal has clothed the agent with the apparent authority to do such acts, the person dealing with the agent must be aware of the principal’s acts from which the apparent authority is deduced. “A party dealing with an agent must prove that the facts giving color to the agency were known to him when he dealt with the agent. If he has no knowledge of such facts he does not act in reliance upon them and is in no position to claim anything on account of them.” (Merchants Nat Bank v. Nichols & Shepard Co., 223 Ill. 41; Alton Mfg. Co. v. Garrett Biblical Institute, 243 Ill. 298.)

Also a third person must use reasonable care and prudence before he is justified in believing that the principal’s acts and conduct have clothed the agent with the appearance of authority to perform certain acts for his principal. And if such person has actual or constructive notice of the extent of the agent’s authority, he cannot claim to be acting in good faith and hold the principal on the ground of apparent authority. (2 C. J. 575; Schmoldt v. Langston, 106 Ill. App. 285.)

In the case at bar there is no evidence proving that the insured, or those standing in their place or stead, or those acting for them, had knowledge that Sulcer, if it be so, was the general agent of the insurance company in the business of insuring automobiles. In fact they were informed by Sulcer that he was not a recording agent, but a soliciting agent only. Such information should have placed them on their guard and lead to further investigation of Sulcer’s authority.

The provision in the policy requiring the furnishing of proofs of loss was a valid one, and the appellant having failed to prove the waiver of the supplying of such proofs as called for by the policy, failed to establish her right to recover upon the policy. In his argument appellant states that the certificate of Sulcer’s appointment is not the original, but only a copy thereof. Without deciding whether the evidence was sufficient to admit the copy under the rule governing the admission of secondary evidence, it is pointed out that.no objection was made to the introduction of the certificate on that ground and exception taken to the ruling of the court.

Cross-errors are assigned in this court by the defendant in error, Joseph Was vary, but there is nothing urged on his behalf which leads the court to modify the views expressed in this opinion.

Tne decree and judgment of the lower court is affirmed.

Affirmed.


text:
    Illinois Bond & Investment Company, Appellant, v. H. F. Gardner et al., Appellees.
    Opinion filed June 1, 1928.

      Holt & Holt, for appellant.
    W. W. Hart and Layman & Johnson, for appellees; Pulvbrman & Cantrell, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

This is an action in replevin brought in the circuit court of Franklin county, at the June term, A. D. 1927, by the appellant, the Illinois Bond & Investment Company, against the appellees, H. F. Gardner, the Summers Motor Company and James S. Pritchard, sheriff of Franklin county, to recover the possession of a Nash automobile described in the affidavit, writ and declaration.

The declaration is the usual form in such cases. To which declaration, the appellees filed three pleas, viz: Non cepit, non detinet, and a special plea that Pritchard, the sheriff, held the said car under a legal execution. To these pleas the appellant filed separate replications and issue was joined.

The Illinois Bond & Investment Company is a corporation organized under the laws of the State of Illinois, doing business in Salem, Illinois. The Southwest Nash Company is a distributor of Nash automobiles in St. Louis, Missouri.

The Summers Motor Company of Benton, Illinois, in May, 1927, applied to the Southwest Nash Company to purchase the Nash automobile in question. The Summers Motor Company being unable to pay the entire purchase price in cash, the Southwest Nash Company made a bill of sale of said automobile in favor of the appellant, the Illinois Bond & Investment Company, whereby they sold and transferred to the appellant the Nash automobile in question. They also caused a certain trade acceptance to be issued in favor of the Illinois Bond & Investment Company, signed by the Southwest Nash Company, drawer and distributor, and by the Summers Motor Company, as drawee; and also at the same time an application for renewal of the trade acceptance of said automobile was signed by the Summers Company; they also caused a trust receipt to be executed by the appellee, the Summers Motor Company, in and by which it acknowledged the receipt of the 'automobile in question from the Southwest Nash Company of St. Louis, Missouri, acting for the appellant, the Illinois Bond & Investment Company, according to the terms and conditions of said trust receipt, and attached to said bill of sale, trade acceptance and trust receipt, its draft on the National Bank of Commerce, of St. Louis, for the sum of $1,162.93 to the Illinois Bond & Investment Company, and signed by the Southwest Nash Company.

The same was sent through the National Bank of Commerce in St. Louis to the Salem National Bank of Salem, Illinois, where the said bill of sale, trade acceptance and trust receipt were taken up by the appellant, the Illinois Bond & Investment Company, upon payment of said draft.

In and by .the said trust receipt it wTas provided that the Summer¿Motor Company agreed to hold the said automobile in trust as the property of the appellant, the Illinois Bond & Investment Company, and to return the same on demand; that the said Summers Motor Company would not rent, lease, mortgage, pledge, incumber, use or demonstrate the same, but would drive it directly to its ulace of business and hold the same until paid for.

It was also provided in said trust receipt that the Summers Motor Company, upon the written order or release of the appellant, the Illinois Bond & Investment Company, might sell said automobile, but said sale should not be made except on the written order or release by the appellant, and then only for cash, and for no less than the sum mentioned in the written order or release previously obtained from the appellant,

The Summers Motor Company upon receipt of the said Nash automobile drove it directly to its place of business on North Main street in the city of Benton, Illinois, and there stored and displayed the same. While the said automobile was being so stored and displayed by the said Summers Motor Company, and without the knowledge of the appellant and without any written order or release as specified in the' trust receipt from appellant, Eagle Summers, representing the Summers Motor Company, sold and delivered said Nash automobile to appellee H. F. G-ardner, who paid the said Summers Motor Company for the same.

The agent of the appellant soon after this found the ear had been removed without the knowledge of the appellant. Upon inquiry he learned that it was in the possession of the appellee H. F. Gardner, and immediately the agent of the appellant made demand upon the appellee H. F. Gardner to surrender the automobile to the appellant as owner of the same. Gardner refused to surrender the automobile to the appellant, who took steps to replevin the car. In the meantime, appellee James S. Pritchard, sheriff of Franklin county, having a legal execution on a judgment, levied upon said automobile in the possession of H. F. G-ardner and took the same into his possession. Thereupon the appellant instituted a replevin suit against all of the defendants to recover said automobile.

On the trial of said cause appellant introduced in evidence, before the jury, appellant’s bill of sale, trade acceptance, etc., claiming the title and right of possession to the said automobile, and also gave evidence of the demand made upon the appellee H. F. Gardner and James S. Pritchard, sheriff of Franklin County, to surrender possession of the car to the appellant; also the facts of the storage of the automobile in the Summers Motor Company’s place of business in the city of Benton and the taking of the same from the salesroom and delivery thereof to the appellee H. F. Gardner, without the knowledge or consent of the appellant.

The appellee H. F. Gardner testified on behalf of the appellees as to the purchasing of the automobile and paying the Summers Motor Company for same, as above stated; that the car was in the Summers Motor Company’s sale and storage room where this car and a number of other cars were stored and displayed. C. B. Dollins testified that Eagle Summers of the Summers Motor Company was engaged in the sale of the Nash automobiles and the location of the place of business of the Summers Motor Company; that it had a storage and salesroom and there were a number of cars in said room. The record of the judgment of H. J. Renner against Eagle Summers and the execution issued upon the same in the hands of the appellee Pritchard, the sheriff, upon which the levy had been made, was also introduced in evidence. This was substantially the evidence offered in the case and there was very little dispute in regard to the facts as disclosed by this evidence.

At the conclusion of all the evidence the court, on motion of the appellee, excluded the evidence from the jury and gave .a peremptory instruction to the jury to find the (appellant not guilty, which the jury did. The court entéred judgment upon the verdict in favor of the appellees and against the appellant, ordering and directing that said automobile be returned to the appellees and also entered judgment against the appellant in favor of the appellees for the costs of the suit. Exception, appeal, etc.

It is the contention of the appellant that by virtue of the bill of sale executed to it by the Southwest Nash Company of St. Louis, Missouri, said company transferred the title of said automobile to the appellant, and through the making of the trade acceptance, and trust receipt, that the title and ownership of said automobile fused in the appellant, and also that the delivery or sale of said automobile by the Summers Motor Company to the appellee Gardner was null and void so far as the appellant was concerned, for the reason that the Summer Motor Company could not sell or convey any better title than it had, and it had neither the title nor the right of possession to said automobile, and hence could not legally sell or dispose of the same; also, that the judgment on which execution was issued in the hands of appellee Pritchard was obtained by H. J. Renner against Eagle Summers, who, at the time the judgment was rendered and execution issued in the hands of the sheriff, did not own the automobile, or have any right, title or interest in same. Also, that the levying of said execution was illegal so far as the rights of the appellant were concerned; that upon failure of the appellees Gardner and Pritchard to deliver said automobile upon demand, the plaintiff, upon notice, etc., showing demand for possession, became entitled to the recovery of said Nash automobile.

The appellees contend that by reason of the fact that the Summers Motor Company was permitted to store and display said car in their storage and salesroom where they stored other cars for sale, and later, by reason of the Summers Motor Company having sold and delivered the said car to H. F. Gardner, that the appellant is estopped from saying that the Summers Motor Company had no authority to sell said car under section 23 of the Uniform Sales Act, Cahill’s St. ch. 121a, J 26.

The' appellees contend that they were not guilty of any act or representation that should work an estoppel in this case in favor of the appellees or any other person. That if the question of estoppel was involved it was a .question of fact whether or not the appellant had, by any act, word or representation, done anything that would amount to an estoppel, which was a question of fact for the jury to determine, and not a legal question for the court, upon a motion to exclude the evidence and give a peremptory instruction to the jury.

Section 23 of the Uniform Sales Act, Cahill’s St. ch. 121a, U26, is as follows: “Subject to the provisions of this Act, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell.”

The automobile in question was delivered to the Summers Motor Company on terms and conditions as set forth in the trust receipt; the said Summers Motor Company had for some years prior to the sale in question operated its garage in the city of Benton, Illinois, and was the distributor of Nash automobiles similar to the one involved in this case, the said automobiles being kept on display in the sales and storage room of the garage of said Summers Motor Company, all of which was so known to the appellant.

“Where the true owner of property allows another to appear as the owner of, or to have full power of disposition over the property, so that an innocent third party is led into dealing with the apparent owner, an estoppel may operate against the true owner which will preclude him from disputing the existence of a title which he has caused or allowed to appear to be vested in another.” * * * Without regard to the terms of contract of sale, an innocent purchaser will be protected where the appearance of ownership is in one while the title is really in another, and if the vend- or delivers the chattel to the vendee before payment of the purchase price and allows the vendee to have all the indicia of ownership, retaining a secret lien for payment, he cannot assert his right against a judgment creditor of the vendee without notice before a levy is made.” (Drain v. LaGrange State Bank, 303 Ill. 330.)

The appellant contends that they are not estopped from claiming ownership of this car as against the appellees, for the reason that the Summers Motor Company did not have title to the automobile and therefore could not give a purchaser any better title than they then had, and relies upon Sherer-Gillett Co. v. Long, 318 Ill. 432, to support its contention.

An examination of that case shows that the facts are not similar to the case at bar. In the Gillett case one Taylor entered into a contract of a conditional sale with Sherer-Gillett Company for a display counter to be used by Taylor in his grocery store, for which Taylor agreed to pay $10 in cash, and monthly payments until the purchase price was fully paid, the title to remain in Sherer-Gillett until full payment of the purchase price had been made. Two days later Taylor sold the counter to Long. Long then had no notice of the reservation of the title under the contract and conditional sale, and no notice of any right of appellee. In the Sherer-Gillett case Taylor was not engaged in the business of selling display counters and show cases, but was in the business of selling groceries.

In the case at bar the Summers Motor Company was engaged in the business of selling the kind of automobiles that the appellant was handling. He took the automobile to his regular place of business and placed it in the display, sales and storage room where other cars were displayed and stored. A purchaser desiring to buy the automobile would be led to believe that the Summers Motor Company, which had possession of the car on display in their salesroom (without any notice of any secret agreement between Summers Motor Company and anyone else) was the owner of and had a right to sell the said automobile.

A customer going into a retail store and seeing goods on display offered to the public generally for sale, buying such goods, in good faith, should be protected against the holder or owner of any secret lien of which the purchaser has no notice. To hold otherwise would seriously interrupt business. Purchasers would hesitate before buying for fear the seller could not give good title to the goods he has for sale, because of some one having a secret lien through some trade acceptance of bill of sale for said goods.

We believe the legislature in passing this statute, Cahill’s St. ch. 121a, 26, meant to protect the owner whose goods were sold without his authority or consent, but for the protection of innocent purchasers, having no reason to suspect secret liens, etc., has very wisely added, “unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell. ’ ’

We are of the opinion that the appellant has precluded itself from denying the seller’s right or authority to sell the automobile in question.

The appellant contends that it was a question of fact that should have been submitted to the jury, whether there had been an estoppel in this case, and that it was error for the court to direct a verdict in favor of the defendants. Ordinarily this is the correct rule, but where the facts are not in dispute, and only one conclusion can be reached from the facts in evidence, then it becomes a question of law for the court to say whether or not, under the facts as presented, the appellant in this case has been estopped from asserting its rights as claimed by their secret lien, under the Uniform Sales Act, Cahill’s St. ch. 121a, 26, as against an innocent third party. “Where there is no dispute about the facts and only one inference can be drawn, it is a question of law whether or not the facts proved constitute an estoppel.” (21 Corpus Juris, page 1253.)

We are of the opinion that there is no reversible error in this case and the decree of the circuit court of Franklin county is hereby affirmed.

Affirmed.