text:
    In re Estate of Frank A. Stahl, Deceased. Marie Burk, Appellant, v. Estate of Frank A. Stahl, Deceased, Appellee.
    Gen. No. 40,463.

      Heard in the second division of this court for the first district at the October term, 1938.
    Opinion filed May 28, 1940.

      Paul R. Wick, of Chicago, for appellant; William T. Pridmore, of Chicago, of counsel.
    John F. Haas, Frank S. Righeimer, Jr. and Albert N. Charles, all of Chicago, for appellee.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.

Marie Burk filed a petition in the probate court on -October 14, 1937, claiming that she was the owner of an undivided one-half interest in certain securities by-reason of a gift causa mortis of same to her by Dr. Frank A. Stahl, deceased. Her petition was contested and an order was entered which found that the securities claimed were assets of the estate of Frank A. Stahl. On her appeal from said order to the circuit court that court, after a hearing, directed the jury to find the issues in favor of the estate of Frank A. Stahl, deceased. Pursuant to the verdict of the jury judgment was entered ordering and decreeing that the securities in question “were the property of and belonged to the said Frank A. Stahl at the time of his decease and that said securities now belong to and are assets of the estate of Frank A. Stahl, deceased”; and that “Marie Burk has no right in or title to the securities claimed by her.” Petitioner, Marie Burk, prosecutes her appeal from this judgment order.

Dr. Frank A. Stahl died testate on June 10,1936. His will, in which Gustave A. Stahl, William D. Petzel and Marie Burk, the petitioner herein, were named executors, was admitted to probate and letters testamentary issued June 26,1936. March 10,1937, William D. Petzel, one of the executors, filed a petition in the probate court of Cook county, wherein he alleged that Marie Burk was in possession of certain securities which belonged to the estate of Frank A. Stahl; that she claimed said securities as her property; and asked the court to determine the ownership of such securities.

On April 14,1937, the following order was entered in the probate court:

‘ ‘ This matter coming on to be heard, April 14, 1937, on the Petition of William D. Petzel, one of the co-executors of the Last Will and Testament of Frank A. Stahl, deceased, and testimony having been adduced, it is hereby
“Ordered, Adjudged and Decreed that the co-executor, Marie Burk, respondent herein, deliver over instanter to the co-executors, William D. Petzel and Gustav A. Stahl, the following securities now in her possession, to-wit: (Securities listed.)
“And that the same be inventoried as assets of the Estate of Frank A. Stahl, deceased.”

The securities listed in the order were all the securities claimed by Marie Burk in the petition thereafter filed by her on October 14, 1937. June 24, 1937, an order was entered by the probate court which found that Marie Burk had refused to turn over the securities pursuant to its order of April 14, 1937, and directed her to show cause why she should not be held in contempt of court for failure to comply with said order of April 14,1937. On July 1,1937, an order was entered by the probate court which, after finding that Marie Burk appeared in court to show cause pursuant to the order of June 24, 1937, and that in open court she turned over to her coexecutors the securities designated in the order of April 14, 1937, directed that the rule to show cause be discharged.

On October 14,1937, Marie Burk filed the petition in the probate court heretofore referred to, in which she alleged substantially that Frank A. Stahl, deceased, had in his lifetime given to her an undivided one-half interest in certain securities and that he gave the other undivided one-half interest in said securities to Gustave A. Stahl; that she had appeared before an assistant judge of the probate court on April 14, 1937, pursuant to notice, for a hearing on a petition and motion of William D. Petzel, one of the executors of the estate of Frank A. Stahl, for an order on her to turn over the aforesaid securities to the other executors of said estate; that on that occasion she was advised by said assistant judge of the nature of the proceeding; that when such assistant judge learned that she was without an attorney, he stated in open court that he would not hear the matter until she was represented by counsel and would enter no order in connection therewith; that thereafter petitioner left the courtroom and did not know of the entry of any order, but that the records in the cause disclose that on the aforementioned date said assistant judge did enter an order directing that petitioner turn over to her coexecutors, William D. Petzel and Gustave A. Stahl, the aforesaid securities; that said order recites that testimony had been heard, whereas, as a matter of fact, no testimony was given, no hearing was had while petitioner was in court and she left the courtroom with the assurance of the presiding judge that no order would be entered; that there had been no subsequent or prior adjudication of her ownership of or interest in said securities; that no hearing or trial has ever been held to determine petitioner’s ownership of or interest in said securities; that same were delivered to William D. Petzel and Gustave A. Stahl, as coexecutors, to prevent her from being held in contempt of court for violation of the order of April 14,1937; that by virtue of the gift hereinabove set forth she is the owner of an undivided one-half interest and Gustave A. Stahl is the owner of the other one-half undivided interest in all the securities mentioned herein and the estate has no title to or interest in said securities; and that any question of petitioner’s right to or interest in said securities should be adjudicated only after a full and complete hearing before the court. She concluded her petition with the prayer that the order of April 14, 1937, be vacated and that a final adjudication of her ownership of said securities be made by the court after a full and complete hearing.

The various legatees and devisees under the will of Frank A. Stahl and the executors William D. Petzel and Gustave A. Stahl, who was a brother of the deceased and one of his legatees, filed motions to dismiss the petition of Marie Burk on the grounds (1) that the order of April 14,1937, was res adjudicata of the ownership of said securities and (2) that the claim of Marie Burk was barred by the statute of limitations. These motions to dismiss were overruled.

Then certain of the legatees under the will of Frank A. Stahl filed an answer to the petition, which, after denying that the decedent made a gift to petitioner of any interest in said securities or that he gave. Gustave A. Stahl any interest in same, admitted that Marie Burk appeared before an assistant judge of the probate court on April 14,1937, for a hearing on the petition and motion of William D. Petzel, one of the executors, for an order on her to turn over said securities to the other executors of the estate of Frank A. Stahl, deceased, and that she was advised by the assistant judge of the nature of the pending proceeding’. Then the answer, after denying that the assistant judge stated in open court that he would not hear the matter when he learned petitioner was without counsel and that said assistant judge stated he would enter no order in connection therewith, alleged that the order of April 14,1937, was duly entered. The answer admitted that petitioner turned over said securities to her coexecutors to avoid being held in contempt of court for violation of the order of April 14,1937. The answer then, after denying that petitioner was 'entitled to a hearing on her petition, alleged that the order of the probate court of April 14, 1937, was entered after a hearing; that said order was final and appealable; that the probate court had lost jurisdiction to inquire further into the ownership of said securities and that any further assertion of claim by petitioner was barred by the statute of limitations. The answer concluded with a denial that the petitioner was entitled to any of the relief prayed for.

On the issue raised by the foregoing petition and answer as to the ownership of the securities involved, evidence was presented and after a full hearing the probate court entered an order on April 8,1938, finding that all of the securities claimed by Marie Burk were assets of the estate of Frank A. Stahl, deceased. It was this order, as heretofore shown, from which petitioner appealed to the circuit court.

In the circuit court various legatees, devisees and the executors Petzel and Stahl moved to dismiss the appeal and the cause of action on the same grounds urged in the probate court. The motion to dismiss the appeal was overruled.

In support of her claim that she was the owner of the securities in question by virtue of a gift made to her of same on June 10, 1936, by Frank A. Stahl a few hours before he died, Marie Burk presented several witnesses in the circuit court who testified to the effect that the decedent had stated on several occasions that it was his intention and desire to give petitioner and his brother, Gustave A. Stahl, certain securities; that he had placed such securities in a valise or satchel and had called for such valise before he died and took therefrom a bundle or package containing securities consisting of stocks and bonds; and that he placed same in petitioner’s hands. Petitioner claims that the securities Avhich she had theretofore been compelled to turn over to her coexecutors by order of the probate court were the same stocks and bonds that were in the package which the decedent had placed in her hands shortly before he died. No witness even attempted to identify specifically a single security which it was claimed the deceased had expressed an intention of giving to petitioner or which was contained in the package which, according to some of her witnesses, had been placed in petitioner’s hands by the deceased. In order to prove the identity of the securities in said package Marie B.urk became a witness in her own behalf and testified that after the death of Frank A. Stahl she saw a brown valise in the clothes closet of his room and that it remained there without being touched by anybody for two days after Stahl’s death. Her counsel then made the following offer of proof: ‘‘ That was on Friday, two days after his death, that she went into the closet in Ms room, the closet in the room of Dr. Stahl and took from that closet a brown valise, and took that valise into her living room and opened the valise, and took from it a package of securities approximately eight inches long, three or three and a half inches wide, and about two and a half to four inches thick. This package was bound with a rubber band, and that she opened the package and examined the various securities therein found, and made a list of those securities, and that she will further testify and identify and describe each one of those securities, and that the identity and description of those securities will be the same as the securities listed in the petition as being had.” An objection to this offer of proof was sustained.

Petitioner first contends that “The judgment order of the Circuit Court of Cook County in the case at bar, was entered on a jury verdict rendered at the direction of the Court, in favor of the ‘Estate of Frank A. Stahl, Deceased,’ which is not a natural or artificial person; was never a.party to the cause of action, and, as it lacks legal entity to sue or be sued, a verdict or judgment in favor of it is a nullity. ’ ’

In our opinion this contention is purely an afterthought and entirely lacking in merit. Petitioner did not object to the form of the verdict in her written motion for a new trial. By filing such motion in writing she thereby waived all grounds not specified therein. (Ulbricht v. Western Coach Lines, 289 Ill. App. 164; Erikson v. Ward, 266 Ill. 259.) An alleged error not urged in the trial court cannot be urged for the first time in a court of review. Moreover the petition of Marie Burk recognized that the only issue involved herein was whether she or the estate of Frank A. Stahl, deceased, was entitled to the securities in question and the verdict of the jury clearly decided that issue. The appeal bond filed by petitioner in the circuit court recites that the sureties thereon “are held and firmly bound unto the estate of Frank A. Stahl, deceased. ’ ’ All proceedings in this cause in which petitioner has participated in both the probate and circuit courts have been entitled “in the Matter of the Estate of Frank A. Stahl, deceased. ’ ’ Her own petition is so entitled. The petitioner is therefore estopped by her conduct throughout this litigation from objecting to the form of the verdict and judgment order.

But petitioner insists that, under the familiar rule that a judgment rendered by a court having no jurisdiction to hear and determine the case is an absolute nullity and may be attacked at any time and in any proceeding, the verdict rendered herein finding the issues in favor of the “Estate of Frank A. Stahl, deceased,” and the judgment entered thereon are void because said estate, not being a legal entity could not properly be a party to the proceeding and therefore the court had no jurisdiction to enter the judgment appealed from upon a verdict in favor of a legally nonexistent party. The position of Marie Burk in this regard is untenable. This is not an original action at law but a matter which has to do with the probate of an estate and all the proceedings herein were had in accordance with the provisions of the act for the administration of estates (Ill. Rev. Stat. 1937, ch. 3 [Jones Ill. Stats. Ann. 110,001 et seq.]). All the parties in interest submitted themselves to the jurisdiction of the circuit court and that court certainly had jurisdiction of the subject matter by reason of petitioner’s appeal to it from the order of the probate court. In her petition Marie Burk claimed that “the estate has no title or interest in said securities. ’ ’ By this averment she defined the issue in the cause and the verdict of the jury simply held against her on that issue. It has been uniformly and repeatedly held that a proceeding such as this is not governed by any of the technical rules applicable to formal suits at law. In Grier v. Cable, 159 Ill. 29, the court said at pp. 35, 36 :

“We are of the opinion that the proceedings provided by law in this State for the presentation and allowance of claims against the estates of decedents are in no proper sense suits or proceedings at law or in chancery, but purely statutory proceedings, provided for the prompt and summary presentation, allowance and classification of all just claims against such estates....
“In all of its essential features this proceeding is distinctively statutory. The mere fact that when a claim is contested, so as to necessitate a trial, the trial is to be conducted in the same way in which suits at law are tried, can not, of itself, have the effect of converting a purely statutory proceeding into a suit or proceeding at law. In all other respects the proceeding is sui generis, and bears no analogy to proceedings conducted according to the forms of the common law. No written pleadings are required. (Thorp v. Goewey, 85 Ill. 611; Wolf v. Beaird, 123 id. 585.) The proceeding is not governed by the technical rules which apply to suits at law. (Scheel v. Eidman, 68 Ill. 193.)”

Petitioner next contends that “under the first exception to section 2 of the Evidence act she was competent to testify to facts occurring after the death of Frank A. Stahl.” Section 2 of the Evidence Act (Ill. Rev. Stat. 1937, ch. 51, par. 2 [Jones Ill. Stats. Ann. 107.068]) in so far as it is pertinent here provides that “No party to any civil action ... shall be allowed to testify therein of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends ... as the executor, administrator, heir, legatee or devisee of any deceased person . . . except in the following cases. ...” The first exception to the foregoing provision is that “In any such action ... a party . . . may testify to facts occurring after the death of such deceased person. ...”

As heretofore stated the witnesses produced by Marie Burk completely failed to identify any documents in the possession of Stahl prior to his death which might have been the subject matter of a gift from him to her. No witness testified that the securities claimed by Marie Burk were among the contents of the decedent’s valise prior to his death. Consequently there is no way of determining from the testimony presented whether or not Stahl had any securities in his valise on the day he died or at any other time. Moreover, if it could be inferred from the evidence in the record that there were securities in Stahl’s valise on the day he died, it still could not be determined from the evidence what specific securities were in that valise. The final link in the chain of evidence which was necessary to connect the securities claimed by Marie Burk in her petition filed more than a year after Stahl’s death to the unknown contents of his valise was missing. Only by Marie Burk’s own testimony could this link be supplied. She could not testify directly that the securities claimed by her were in Stahl’s valise on the day he died and prior to the time of his death. However, by offering to testify that the valise in question was continuously in her possession from the time of his death, she proposed to accomplish the same result. The admission of her evidence in this regard would by indirection bring into the record testimony as to what had occurred before Stahl’s death — the very thing that sec. 2 of the Evidence Act [Ill. Rev. Stat. 1937, ch. 51, § 2; Jones Ill. Stats. Ann. 107.068] seeks to prevent. The purpose of her proffered testimony was unquestionably to identify the contents of Stahl’s valise prior to his death as the very securities which she claimed in her petition filed over one year later and the court properly excluded such testimony as coming within the statutory prohibition against testimony by an adverse party concerning events which happened prior to Stahl’s death. In Halladay v. Estate of Blair, 223 Ill. App. 609, the court had occasion to pass upon the competency of testimony similar to that proffered by Marie Burk under a practically identical factual situation. There the claimant sought to recover from the estate of her mother $2,685 on 19 promissory notes which she alleged had been executed by her mother and delivered to her prior to her mother’s death. The claim was allowed in the probate court and in a trial by jury in the circuit court a verdict was rendered in favor of the claimant, upon which judgment was rendered. In the trial of the cause in order to prove the delivery of the notes the claimant was permitted to testify over the objection of the executor of her mother’s estate that she had possession of the notes at all times from her mother’s death until she delivered them to her attorney for the purpose of filing a claim against said estate. Admission of this testimony was assigned as error in the Appellate Court. In holding that claimant’s testimony should have been excluded, the court said at pp. 611, 612:

“It is contended that she was a competent witness to give such testimony under the first exception of section 2, ch. 51, of Hurd’s Revised Statutes (Cahill’s Ill. St. ch. 51, 2) because such testimony had reference to a transaction occurring after the death of her mother. It is further contended by the claimant that if such testimony was competent and admissible, then it furnished proof of her possession of the notes immediately upon the death of her mother, and that this possession raises the presumption or at-least leads to the necessary inference that the notes were delivered to her by her mother. The provision of the law which renders a claimant incompetent to testify concerning transactions which occurred during the lifetime of the decedent is founded upon sound considerations of public policy. The statute in this regard was intended to protect estates of deceased persons from assaults which would tend to reduce or imperil the estate. If it were not so, the greatest injustice would be the result. 'A willing living witness would have the whole case in his own power; and a door to perjury would be opened so wide and so inviting as to require great moral firmness to decline an entrance into it. It would be a temptation very many would not be able to resist. Boynton v, Phelps, 52 Ill. 210.
‘‘ The obvious purpose of eliciting the testimony from the claimant that she had been in possession of the notes in question from the time of the death of the mother until she had delivered them to her attorneys was to furnish proof that the claimant had possession of the notes prior to the death of her mother. If claimant’s counsel had asked her upon the trial whether or not she had possession of the notes prior to the death of her mother, such question would have been objectionable because of the incompetency of the witness. If she could not have been permitted to answer the question, upon what ground may she be permitted to answer a question fr'amed in different language but which is tantamount to it! What cannot be allowed by direct question cannot be allowed through a skillfully framed indirect interrogatory. Telford v. Sowell, 220 Ill. 52. Without this testimony of claimant there is nothing in the record tending to prove a delivery of the notes. Therefore the appellant’s motion for a directed verdict should have been allowed.”

As heretofore stated the testimony of Marie Burk in the instant case was properly excluded and in the absence of any testimony as to the identity of the securities, which it is claimed were given to her by decedent, the trial court was bound to direct a verdict against the petitioner.

The petitioner’s final contention that “the trial court erred in not submitting the case to the jury” is without merit as has already been shown. No attempt has been made by petitioner in her brief to either discuss or analyze the evidence bearing upon the purported gift of the securities to her by the decedent. It may well be that her counsel purposely refrained from discussing same because of its apparent absurdity. Dr. Stahl was not related to Marie Burk but he had lived at her home for several years prior to his death. A few months theretofore he had made a will in which he left all of his property to the members of his family and made no provision therein for Marie Burk. He was past 70 years old, but in possession of all of his faculties until he had a cerebral hemorrhage on the day of his death, which caused the complete paralysis of his right side and of his throat. Thereafter he was unable to speak. It was while he was in that condition that a child’s alphabet book was produced in his bedroom, although there was no showing that he had in any manner indicated that he wanted same. He was then held in a sitting position with a pencil in his hand by Marie Burk’s brother. The alphabet book had only one letter of the alphabet on each page and it was found that it was too difficult for Stahl to point out the letters of the alphabet in order to spell out the words that the witnesses testified he wanted to indicate and turn the pages of the book at the same time. Marie Burk then had her brother print the letters of the alphabet two inches high on a piece of wrapping paper. Stahl, according to petitioner’s witnesses, then proceeded to point out the letters that spelled v-a-l-i-s-e and c-l-o-s-e-t. Marie Burk, interpreting the words purportedly indicated by Stahl to mean that he wanted her to bring to him his valise from the closet, then opened the locked closet door with a key and brought forth a valise, which she opened and placed across Stahl’s knees. Then, according to the same witnesses, he reached into the valise with his left hand and took out the package said to contain the securities and placed them in petitioner’s hands. Strange to say, instead of keeping the package, Marie Burk put the package back in the valise and put the valise back in the closet. It is on this character of evidence that petitioner sought to prove the delivery of the gift causa mortis. The law requires that such a gift shall be established by clear proof and that no uncertainty shall exist as to the subject or object of the gift. (Barnum v. Reed, 136 Ill. 388; Rothwell v. Taylor, 303 Ill. 226; Kramer v. Habel, 240 Ill. App. 40.) “Gifts causa mortis being donations not made in conformity to the Statute of Wills but made without the safeguards cast around the execution of wills, are not favored in law. ’ ’ Gilmore v. Lee, 237 Ill. 402.

We are also impelled to hold that, since the order of the probate court of April 14,1937, was a final determination of the ownership of the securities involved and no appeal was taken therefrom, such order was res adjudicata of the claim made by Marie Burk in her petition of October 14,1937, and the cause should have been dismissed by the circuit court on that ground.

Since the claim set forth in Marie Burk’s petition of October 14,1937, was filed more than one year after letters testamentary had issued June 26,1936, it was barred by the statute of limitations applicable to claims filed in the probate court (Ill. Rev. Stat. 1937, ch. 3, par. 71, sec. 70 [Jones Ill. Stats. Ann. 110.071]).

For the reasons stated herein the judgment of the circuit court is affirmed.

Judgment affirmed.

Friend and Scanlan, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice John J. Sullivan

license: Public Domain

text:
    J. E. McKenerick, Appellant, v. Walter Levin et al., Appellees.
    Gen. No. 40,539.
    Heard in the second division of this court for the first district at the December term, 1938.
    Opinion filed May 28, 1940.
    Rehearing denied June 12,1940.
    John M. Lee, of Chicago, for appellant; Daniel D. Tuohy, of Chicago, of counsel.
    Nash, Ahern, McDermott, McNally & Kilby and Maxwell L. Rubin, all of Chicago, for certain appellee; Maxwell L. Rubin, of counsel.
    Meyer W. Rosin, of Chicago, for certain other appellees.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.

Shortly after plaintiff, J. E. McKeneriek, filed the complaint to foreclose her first mortgage, one of the defendants, the owner of the equity of redemption, in order to avoid the expense of receivership executed an assignment of rents to plaintiff, which authorized her to pay ‘‘ all expenses for the care and management of such premises, including taxes and assessments and the interest on incumbrances.” A decree of sale was entered in the foreclosure proceeding and at the master’s sale held pursuant to the provisions thereof plaintiff’s bid of $86,000 for the property involved was accepted and a certificate of sale issued to her. The court decreed a deficiency of $8,175.36 in her favor. The order approving the master’s report of sale and distribution continued plaintiff in control and possession of the premises under the assignment of rents in lieu of the appointment of a receiver and directed her to “account for all receipts and disbursements in connection with the operation and management of such premises” at the expiration of the period of redemption and to ‘‘ apply the net income from said premises on account of the deficiency as aforesaid and retain the overplus, if any, subject to the further order of this court.” During the period of redemption plaintiff paid $3,848.65 in taxes out of rents accruing during the redemption period. Plaintiff’s final account and report disclosed her payment of this tax item and also revealed that she credited herself with $510.96, representing interest at 5 per cent on the full amount of the deficiency for the entire period of redemption. Pursuant to a counterclaim filed by the holder of the second mortgage and to objections filed to the aforesaid account and report by the owner of the equity and the holder of the second mortgage, the items covering the payment of taxes and interest were disallowed by the trial court. Upon the aforesaid counterclaim and objections to the final account and report of plaintiff an order was entered on August 4,1938, directing that the overplus of $2,339.06 remaining in plaintiff’s hands after the payment of the delinquency be paid by her to Charles H. Albers, receiver of the West Side Trust and Savings Bank, in reduction of the indebtedness described in and secured by the trust deed in the nature of a second mortgage held by him. It is from this order that plaintiff prosecutes this appeal.

The only real question presented is whether under the order of court which confirmed the sale of the mortgaged premises to plaintiff mortgagee and continued her in control and possession of said premises after the sale under her assignment of the rents from the owner of the equity in lieu of the appointment of a receiver, said mortgagee may apply rents collected during the period of redemption in payment of taxes levied against the property during said period and whether she is entitled to credit in her final account and report for the taxes so paid over the objections of the owner of the equity and the holder of the junior incumbrance. The assignment of rents, as heretofore stated, contained a provision that the assignee might pay taxes, as well as the necessary expenses incurred in the operation and management of the property.

It is the established law of this State that rents accruing from the operation of mortgaged property after the master’s sale thereof and during the period of redemption cannot be used for the purpose of paying taxes. (Stevens v. Hadfield, 178 Ill. 532; Bothman v. Lindstrom, 221 Ill. 262; Davis v. Dale, 150 Ill. 239; Nixon v. Unity Co., 176 Ill. 12; Haigh v. Carroll, 209 Ill. 576; Elgin City Banking Co. v. Hancock, 183 Ill. App. 23; Talcott v. Peterson, 63 Ill. App. 421.) Plaintiff concedes that during the period of redemption a receiver may not lawfully use rents collected by him from mortgaged property to pay taxes but advances the rather specious argument that, because she was the assignee under an assignment of rents which contained a provision that she was authorized to pay all expenses necessary to the operation and management of the premises, “including taxes and assessments,” she therefore occupied a position superior to that of a receiver after sale and had authority by virtue of said assignment not only to pay taxes out of rents accruing before the sale but to pay taxes out of rents accruing during the redemption period. A simple and complete answer to plaintiff’s position in this regard is the order itself, which in lieu of the appointment of a receiver continued her in possession of the property during the period of redemption. That order, as heretofore shown, directed her to “account for all receipts and disbursements in connection with the operation and management of said premises and apply the net income from said premises on account of the deficiency as aforesaid” and to retain the overplus, if any, subject to further order of the court. Regardless of the authority plaintiff claims was given to her under the assignment of rents to pay taxes out of the rents collected during the redemption period, the italicized language in the foregoing order is in our opinion both specific and controlling. Plaintiff’s only authority under this order was to apply the net income to the payment of her deficiency and report to the court any balance remaining after said deficiency was paid. In any event plaintiff’s control of the premises after the sale and during the period of redemption carried with it no greater authority than a receiver would have had during said redemption period.

Moreover, it is difficult to understand how plaintiff can consistently claim that she is entitled to receive any more in this proceeding than the satisfaction in full of her first mortgage indebtedness. She purchased the property at the master’s sale for $86,000, leaving a deficiency of $8,175.36, for which a decree was entered in her favor. Her final account and report showed a net operating balance of $10,751.97 during the period of redemption. Disallowing plaintiff, as the trial court did, the amount of $3,848.65, which she paid on general taxes and $510.96, which she credited herself with as interest on the full amount of the deficiency for the entire period of redemption, the funds in her hands were more than ample to pay the deficiency in full. The court allowed her $237.55 as interest upon the balance of the deficiency remaining due from time to time. Over and above the amount of the deficiency and interest allowed on same, there is a balance of net income of $2,339.06, which, with the consent of the owner of the equity, was ordered to be paid by plaintiff to Charles H. Albers, receiver of the West Side Trust and Savings Bank of Chicago “in partial payment of the junior mortgage indebtedness and deficiency decree in the principal sum of $25,500, found due to the said Charles H. Albers, receiver of the West Side Trust and Savings Bank of Chicago, in the decree of sale heretofore entered herein, and in this order.” In our opinion the order of the court, including all of the findings therein, was proper.

Several other points are urged by plaintiff but in the view we take of this cause we deem it unnecessary to discuss them. They all pertain to the right of Albers, the receiver of the West Side Trust and Savings Bank, to file objections to plaintiff’s account and report or to his right to be paid the balance of the net income remaining after the deficiency had been fully paid. Plaintiff’s first mortgage indebtedness having been fully satisfied, it is no longer any concern of hers what disposition the court made of the balance of the net rents.

For the reasons stated herein the order of the circuit court of August 4,1938, is affirmed.

Order affirmed.

Friend and Scanlan, JJ., concur.


text:
    Mabel M. Ferguson, Individually and as Administratrix of Estate of Peter Ferguson, Deceased, Appellant, v. Penn Mutual Life Insurance Company of Philadelphia, Appellee.
    Gen. No. 40,548.
    Heard in the second division of this court for the first district at the December term, 1938.
    Opinion filed May 28, 1940.
    Richard W. Proctor, of Chicago, for appellant.
    Poppenhusen, Johnston, Thompson & Raymond, of Chicago, for appellee; Robert Z. Hickman, of Chicago, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.

This appeal seeks to reverse the order of the trial court which sustained defendant’s motion to dismiss plaintiff’s statement of claim.

Plaintiff, Mabel M. Ferguson, individually and as administratrix of the estate of Peter Ferguson, deceased, brought this action against defendant, the Penn Mutual Life Insurance Company of Philadelphia, to recover disability benefits and premiums claimed to be due and owing under the terms of two policies of insurance issued by defendant to the decedent.

The statement of claim alleged substantially that the decedent during his lifetime was insured by defendant under two policies, each in the sum of $5,000, copies of which were attached to and made a part of the statement of claim and that the policies contained the following, among other, provisions:

“Monthly Income. The Company will pay to the insured or, if the insured be insane, then to his or her legal guardian or committee if any such has been appointed, or in the absence of any such appointment then to the wife of the insured if a beneficiary of record under this Policy, a monthly income of Fifty & 00/100 Dollars for each completed month of insured’s total and permanent disability as herein defined; such income to continue only during the period of such disability prior to the termination of this Policy by maturity or otherwise. Interest on any indebtedness under this Policy may be deducted from the monthly income payments hereunder.
“Waiver of Premium. The Company will waive the payment of premiums falling due under this Policy during* the insured’s total and permanent disability, as herein defined. The premiums waived shall be the annual, semi-annual or quarterly premiums, according to the method of premium payment in effect when disability occurred.
“. . . Premiums. The extra quarter annual premium for the Total and Permanent Disability Benefits, which is additional to the quarter annual premium stated on the first page of this Policy, is Six & 40/100 Dollars. ”

It was then alleged that “during the month of July, 1936, Peter Ferguson became so ill that he was incapacitated and could not carry on any work of any description and that from then until the time of his death on February 8, 1937, Peter Ferguson was totally and permanently disabled”; and that ‘ ‘ on February 8,1937, Peter Ferguson departed this life, never having recovered his ability to enter gainful employment and that immediately thereafter this plaintiff furnished proof of the permanent and total disability to the Penn Mutual Life Insurance Company of Philadelphia, and the company failed and refused under these policies to pay total and permanent disability for the period for six months prior to February 8, 1937, and as a sole basis for said refusal stated that there was a provision in said contract that the disability payments were to be made only if the company were notified during the pendency of the illness, and that for that reason the proofs of total and permanent disability could not be accepted. ”

Plaintiff asked for judgment for $700.90, which amount included premiums of $100.90 claimed to have been wrongfully received by defendant during the period of decedent’s disability, and disability benefit payments of $50 a month on each policy for a period of six months, aggregating $600.

The pertinent averments of defendant’s motion to dismiss the statement of claim are as follows: “That one term of the supplemental agreement for payment of total and permanent disability benefits is that: ‘ The company will pay to the insured — a monthly income of Fifty and no/100 ($50.00) — ;’ that the plaintiff herein represents herself to be the Administratrix of the estate of the insured, and that it appears upon the face of said statement of claim that the insured is dead, and that the obligation, if any, of the defendant does not run to the plaintiff and that she is not a proper party to assert the same. ’ ’

It was further averred that “it appears upon the face of said statement of claim that one term and condition of the supplemental agreement referred to in the paragraph above provided: ‘Disability benefits shall become effective as of the date of commencement of total and permanent disability of the insured, as herein defined, if due proof of such disability is received by the company at its home office within six months from said date of commencement, otherwise disability benefits shall become effective as of the date six months prior to the receipt of such proof; provided in either event that on such effective date the first premium on this policy had been paid and no subsequent premium was then in default, and further provided such proof is received by the company during the continuance of said disability” (Italics ours.)

It was then averred “that it appears in the second paragraph of page 3 of said statement of claim that proof o°f the permanent and total disability of the insured was furnished the defendant company after the death of the insured, and that this is not a compliance with the said term in the contract or policy of insurance that such proof shall be received by the company during the continuance of said disability.”

Plaintiff’s theory, as stated in her brief, is “that upon the insured becoming totally and permanently disabled there was a liability from the insurance company to the insured and that where the only act which remained to be done under the policy to establish his right to receive total and permanent disability payments and waiver of premium, was to furnish proof of total and permanent disability, death was a continuance of the disability for the purpose of furnishing such proof.”

Defendant’s position is “that in her individual capacity, plaintiff is owed no balance by defendant, nor would she have been at any time during the lifetime of the insured.. She was the beneficiary of the policy and has been paid the face amount thereof. Disability benefits, when they accrue, are due the insured. Defendant owes no obligation to the plaintiff in her capacity as administratrix, for the reason that by failure to perform a condition precedent, none was owing to her intestate in his lifetime.”

The only real question presented is whether the furnishing of due proof of the disability of the insured to defendant at its home office was a condition precedent to the accrual of the obligation on the part of the insurance company to waive premiums or to make monthly disability payments.

As heretofore shown the policy provides: “Disability benefits shall become effective ... as of a date six months prior to the receipt of such proof;... provided such proof is received by the Company during the continuance of said disability.” This language is not ambiguous. It is plain and understandable American. It clearly expresses a condition precedent. If no proof of the disability is received by the insurance company during the continuance of such disability, the benefits, consisting of monthly disability payments and waiver of premiums, do not accrue. The supplemental agreement in this case, relating as it does to a disability existing and continuing at the time claim is made and proof is given the company, makes the furnishing of such proof a condition precedent to the right to the benefits secured by the policy. (Perlman v. New York Life Ins. Co., 105 Pa. Super. Ct. 413,161 Atl. 752.)

In Holtz v. New York Life Ins. Co., 7 W. W. Harr. 1, 179 Atl. 497, in holding that where an insurance policy provided that ‘‘disability benefits shall be effective upon receipt at the company’s home office, before default in the payment of premium, of due proof that the insured became totally and permanently disabled after he received this policy,” the furnishing of proofs was a condition precedent to the maturity of the obligation to pay, regardless of the date from which such payments, when accrued, should be calculated, the court said, at p. 499:

“We are concerned with a phase of the contract which contemplates a protection to the insured during his lifetime. If the argument of the plaintiff is sound, no proof of disability need be made during the life of the insured, but may be submitted after Ms death, and, thereupon, the company becomes liable for the payment of the aggregate of the monthly installments of income from the occurrence of the disability to the death of the insured.

“The necessary conclusion would be that the policy constitutes a hybrid contract of insurance which, at the pleasure of the insured, may be availed of as a benefit to himself personally, or as a means of enhancement of his estate upon his death, a result quite outside of the purview of the contract.” (To the same effect are Hanon v. Kansas City Life Ins. Co., 269 Ill. App. 135; Steffan v. Bankers Life Co., 267 Ill. App. 248; Wright v. Phoenix Mut. Life Ins. Co., 262 Ky. 543; Clark v. Equitable Life Assur. Soc. of U. S., 100 Col. 490, 68 P. (2d) 541; Smith v. Missouri State Life Ins. Co., 134 Kan. 426, 7 P. (2d) 65; Courson v. New York Life Ins. Co., 295 Pa. 518, 146 Atl. 530; Mullaney v. Equitable Life Assurance Soc. of U. S., 66 N. D. 235, 264 N. W. 663.)

Proof of the disability of the insured not having been furnished until shortly after Ms death, it is urged that his “death should be construed as a continuance of disability under the terms of the policy. ’ ’ This is really the only theory upon which plaintiff could possibly hope to prevail in this action, but it is so opposed to reason and contrary to the manifest intention of the parties to the insurance contract that it hardly merits serious consideration. In our opinion the supplemental agreement clearly contemplated that the benefits thereunder would inure only to the insured during his lifetime and during the continuance of his disability. Disability presupposes life. Death is the antithesis of life. In Hill v. Travelers Ins. Co., 146 Ia. 133, in holding that death was not the Mnd of disability contemplated by a policy providing for indemnity for the insured in ease of his permanent or total disability, the court said, at p. 135:

“The word ‘disability’ does not express the same meaning as the word ‘death’ nor is it ordinarily used as signifying the same thing. ‘Disability’ is defined as a want of competent power, strength, or physical ability; weakness; incapacity; impotence. Century Diet. None of the lexicographers, so far as we are advised, give it any broader meaning, and the appellant has cited no case in which it is held to mean death. It is a rule that the language of contracts shall be given its ordinary and usual meaning, unless it is clear that some other meaning was intended by both parties. Here nothing appears that indicated an exception to the rule. Indeed, the very language used negatives any such thought.”

Since there are no circumstances in this case to indicate any incapacity that rendered it impossible for the insured to perform or comply with the condition precedent in the policies as to proof of disability, we are impelled to hold that the withholding of notice and due proof of disability until after the death of the insured precludes recovery of premiums and monthly disability payments under the policies herein.

The order of the municipal court sustaining defendant’s motion to dismiss plaintiff’s statement of claim is affirmed.

Order affirmed.

Friend and Scanlan, JJ., concur.


author: Mr. Justice Friend

text:
    Lindberg Machine Works, Appellee, v. Bernhard Lindberg, Appellant.
    Gen. No. 40,670.

      Heard in the second division of this court for the first district at the April term, 1939.
    Opinion filed May 28, 1940.
    Lewis Bennett, Nathan Bennett and B. M. Steiner, all of Chicago, for appellant; Nathan Bennett and B. M. Steiner, of counsel.
    Harry A. Biossat, of Chicago, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

Lindberg Machine Works, a corporation, filed a complaint in equity against Bernhard Lindberg and Harry Koplin, defendants, seeking specific performance of an alleged oral agreement between the incorporators of plaintiff company and Lindberg, whereby it is alleged that the latter was to assign two certain patents to the corporation. The complaint sought to have the court determine that plaintiff is the owner of these patents, that Lindberg be compelled to assign them to plaintiff, that an injunction issue restraining him from assigning the patents during the pendency óf the suit, and for other relief. Lindberg’s answer denied that plaintiff was entitled to any of the relief prayed for, and interposed a counterclaim for salary aggregating some $3,-000. Koplin’s motion to strike the complaint was sustained by the court, and he was dismissed from the suit without prejudice and without costs. The master to whom the cause was referred found the equities in favor of plaintiff and recommended the entry of a decree granting the relief prayed and dismissing Lindberg’s counterclaim, except as to the sum of $368.85, which plaintiff admitted to be due Lindberg. The court entered a decree in accordance with the master’s recommendations and Lindberg has taken an appeal.

Subsequent to the entry of the decree plaintiff had leave to file an amended and supplemental complaint, which recited the salient findings in the decree, that the court had reserved jurisdiction with reference to an accounting relating to the letters patent, and alleged that Koplin had full knowledge of the pendency of the suit and had dealt with Lindberg after acquiring full knowledge of plaintiff’s rights to the patents; that any consideration for a conveyance paid to Lindberg by Koplin was made with full knowledge on Koplin’s part of plaintiff’s rights; and plaintiff prayed that as between it and Lindberg or any other defendants the former should be adjudged to be the owner of the patents in question; that Koplin be required to assign or convey the said patents and all his interest therein upon such conditions as the court might determine; that if Koplin had made any subsequent conveyances or assignments of the patents that the court should hold them to have been made in fraud of plaintiff’s rights; and that Lindberg and Koplin be held accountable to plaintiff for any money or other property that they or either of them may have received with reference to the patent, and for a general accounting and such other relief as the court might deem fit to decree.

From a voluminous record which contains much conflicting testimony it appears that Lindberg had been in the laundry machine business for about 36 years and during that time had secured approximately 8 or 9 patents on various devices. Shortly prior to 1931 he had been associated with the Whelco Company, for which he had created and to which he had assigned certain inventions which were patented. Subsequently this concern went through bankruptcy and by reason thereof Lindberg had lost the benefits of his inventions.

The master found that early in February, 1931, Lind-berg and Herbert T. Seger, who had also been associated with the Whelco Company, had a conversation wherein he “told the said Herbert T. Seger he had an idea for making a new cylinder door for wash machine, but that he needed assistance,” and they decided to re-engage in the laundry machine business and to organize the plaintiff corporation. The incorporation of this concern was effected March 4, 1931. All the capital stock was paid in cash and no patents were included in the application for incorporation. There is a conflict in the evidence as to the amount of capital invested by Seger. He claims to have contributed $2,000, but Lind-berg testified that Seger subscribed for only $1,500. However, the undisputed evidence discloses that Lind-berg subscribed for $3,000 worth of stock in the new corporation, and thereafter paid in an additional $3,000, which he borrowed. After the company was organized, Lindberg acted as president until he severed his connection with the company April 4, 1936. In addition to his formal duties as president, he had general charge of the business, serviced accounts, made sales, collected money, and, as he testified, “did anything necessary to keep the company alive.”

As said heretofore, Lindberg was an inventor and had had numerous inventions patented over a period of years. On the other hand, Seger admitted that he at no time created or invented any article or device, and his sole connection with the patents involved in the ease at bar was to make drawings in accordance with Lindberg’s instructions. The application for the original patent, being 1,913,764, was filed February 24,1931, before the corporation was organized. The application for patent No. 1,987,513, which is an improvement on the original patent, was filed July 11, 1933, and the patent issued July 8, 1935. Both applications were filed by Lindberg and both patents were issued to him.

Plaintiff contends that at the time Lindberg and Seger decided to organize the Lindberg Machine Works in 1931, Lindberg promised orally to assign both patents to plaintiff when issued, and the gist of these proceedings is for specific performance of the alleged verbal agreement. Manifestly, the agreement to assign the second patent could not have been made in 1931, as claimed, because the second patent was an improvement upon the original and was created and developed only after the original device was manufactured, used and found wanting or deficient in some particular. The application for the second patent was not made until July, 1933, which was more than two years after the alleged oral agreement was supposed to have been made, and it is extremely improbable that Lindberg could have contemplated an improvement on his original idea as early as 1931, especially since his application for the original patent was not filed until February 24, 1931. Plaintiff’s bill was filed in September, 1936, more than five months after Lindberg severed his connections with plaintiff, and more than 5% years after the alleged oral agreement was supposed to have been made.

As a basis for his conclusions and recommendations the master found “that it had been contemplated between the parties, that the said Bernhard Lindberg would assign the aforementioned patents to the plaintiff company.” He did not find or specify any date upon which the alleged oral agreement was made, nor when the patents were to be assigned to the plaintiff corporation. The evidence upon which this conclusion is predicated is conflicting. Herbert T. Seger, Mildred Seger-Nyberg, Andrew Johnson and Mrs. A. T. Seger, testified to various conversations purporting to- show that Lindberg had agreed to assign these patents to the corporation, but their testimony is rather vague, and all the witnesses were of course interested in the successful outcome of the suit. Lindberg, on the other hand, positively denied that any such agreement had been made. Evert Wengstrom and his brother, Ellis, who testified on Lindberg’s behalf, said that early in 1931 they were present during a conversation between Lindberg and Seger wherein Lindberg told Seger that he would not again make the same mistake that he made before in assigning his patents to the corporation, and that Seger replied that he thought Lindberg was right and did not want him to make the same mistake again.

In this connection, the testimony of Mr. William F. Freudenreich, a disinterested witness, becomes of considerable importance. Freudenreich was a patent attorney who had rendered services for Lindberg. His experience as a patent lawyer had extended over 36 years. He knew both Lindberg and Seger, and testified that during 10 or 12 years prior to the trial he had filed about a dozen patent applications for Lindberg or the old Whelco Company. He was consulted by Lindberg with reference to the first patent in question about February 14,1931, and charged Lindberg personally for all legal services in connection with the securing of these patents and had billed him for services and disbursements. At no time had he sent a bill to Lindberg Machine Works for services or expenses in connection with either of these patents. He testified that he received the first money for services or expenses in connection with the patents involved, on February 26,1931. Lindberg made him a payment of $50. Plaintiff in its complaint alleged certain payments to Freudenreich totaling $596.30, and attempted to prove that all this money was paid for fees and expenses in connection with the two patents. Freudenreich testified in detail as to each payment made, and the proof is uncontradicted that out of the sum of $596.30 only $290.80 was paid on account of the two patents involved in this case, and the remainder of $305.50 was paid on other indebtedness of Lindberg to Freudenreich for other patent work. Lind-berg was quite positive in his testimony that the expenses of securing the patents in question were to be charged to his account with the company, and since there was an agreement on the part of the corporation to pay Lindberg a salary of $60 a week, it is reasonable to suppose that these service charges and other personal obligations were paid by the company from time to time and charged to Lindberg’s account.

Freudenreich testified further that while he was working on the first of the two patent applications in February, 1931, Lindberg and Seger visited his office together; that Freudenreich then told Seger and Lind-berg that he was glad that the latter did not commit the mistake of assigning his patents to the new company that was to be formed or which had just been formed, and that Seger replied that that was a very wise thing on Lindberg’s part; that a year or two later when Seger was in Freudenreich’s office Seger told him that a question had arisen as to granting a license under one or both of the patents in controversy to some eastern concern, and Seger inquired whether or not the company could grant such license, whereupon Freudenreich told him that the corporation could not do so without Lind-berg’s consent, because it simply had a shop right which did not allow the company to grant a license, but only to manufacture. These conversations were not denied by Seger.

Considering the fact that Lindberg had had an unfortunate experience only a short time prior to the incorporation of the Lindberg Machine Works, in assigning patents to the Whelco Company, which went into bankruptcy, with a consequent loss of his interest in all these patents to Lindberg, and the fact that Lind-berg had subscribed from three to four times as much from his own funds for stock of the Lindberg Machine Works as had Seger, it is highly improbable that Lind-berg would have also agreed to assign his interest in the one patent for which application had been made before the incorporation and the second patent which was an improvement on the first and was not applied for until more than two years later and could not well have been in contemplation at the time Lindberg Machine Works was incorporated. Freudenreich’s testimony corroborates Lindberg’s testimony and the specific denials that Lindberg made all through his testimony that any such alleged agreement as plaintiff has contended for was ever made; the least that can be said with reference to this conflict on the important factual question in the case is that it is subject to grave doubt. Even the master who heard the evidence did not find that a specific agreement had been made, but merely stated that “it had been contemplated between the parties, that the said Bernhard Lindberg would assign the aforementioned patents to the plaintiff company,” and that “Lindberg had promised, from time to time, to assign said patents to the said company.” No date is fixed by the master as to when these promises were made, and none of the details of the agreement is set forth. Under the state of facts in the record it is difficult to conceive of any valuable consideration that passed from the incorporators to Lindberg which would have induced him to make.such an oral contract, and none is suggested by plaintiff. In this connection it is also significant to note that although the oral agreement for which plaintiff contends is alleged to have been made before the company was organized, no mention is made of these patents in the application for a charter, and in fact all the capital stock was paid in cash, most of which was furnished by Lindberg, himself. It should also be noted that the bill in which plaintiff sought a decree finding that title to these patents belonged to it was not filed until more than 5 years after the date of the alleged oral agreement, and many months after Lind-berg had severed his connection with plaintiff.

The law is well-settled that a court of equity will not decree specific performance unless the proof is clear and satisfactory, both as to the existence of an agreement and as to its terms, and unless the agreement is founded upon an actual and valuable consideration. Courts have repeatedly and consistently enunciated this doctrine in the strongest terms. In Joliet Mfg. Co. v. Dice, 105 Ill. 649, defendant was employed under an agreement by virtue of which he was to work for the best interests of the company, and that any improvements made by him should belong to the company. While so employed he designed an attachment to a machine for planting corn and subsequently superintended the manufacture thereof. Litigation arose as to Dice’s rights under the improvement, and in commenting on the rule hereinbefore set forth, the court said that where a mechanic, in laboring for an employer in the construction of a machine, invents a valuable improvement the invention is the property of the inventor and not that of his employer. The claim of Seger in the case at bar, that he and others helped Lindberg in making drawings in connection with these patents under Lind-berg’s direct supervision would not alter this rule of law. The ideas for the patents were clearly those of Lindberg. The reason for the rule is emphasized by the court in the Dice case as follows (pp. 651, 652): “But the law inclines so strongly to the rule that the invention shall be the property of its inventor, that nothing short of a clear and specific contract to that effect will vest the property of the invention in the employer, to the exclusion of the inventor.”

It is, of course, conceded by Lindberg that plaintiff has shop rights in these patents, and the law is clearly to the effect that where an employee who finds and improves a method of, or instrument for, doing his woj:k, using the property or labor of his employer to develop his invention into practical form by assenting to the use of such improvement by his employer grants to him an irrevocable license to use the invention. It was so held in the recent case of Chicago Daily News, Inc. v. Kohler, 360 Ill. 351, and cases cited therein. In the Daily News case, however, the court did not say that the employer is entitled to an assignment of the patents in the absence of a special agreement, and such is clearly not the law as shown in the numerous decisions cited in defendant’s brief.

The case of Dalzell v. Dueber Watch Case Mfg. Co., 149 U. S. 315, is one of the leading cases relating to the rights of employer and employee in and to patents developed and invented by the employee, and it contains some pertinent observations relating to the right of specific performance of a contract which are applicable to the case at bar. In that proceeding Dalzell was hired to do experimenting upon inventions regarding machinery and tools to be used in the manufacture of various portions of watch cases. His employer contended that Dalzell had agreed that any invention or improvement made or contributed to by him should be patented at the expense of the employer, and for its benefit exclusively, and that he would execute assignments thereof upon the issuance of any such patents. In commenting on the evidence, the court said, quoting from Colson v. Thompson, 2 Wheat. 336, 341, that, “if the contract be vague or uncertain, or the evidence to establish it be insufficient, a court of equity will not exercise its extraordinary jurisdiction to enforce it, but will leave the party to his legal remedy,” and made the further comment that “it may well be doubted whether, if such a contract were satisfactorily proved to have been made, a court of equity would not consider it too unconscionable a one between employer and employed, to bé specifically enforced in favor of the former against the latter.”

In Pressed Steel Car Co. v. Hansen, 137 Fed. 403, suit was brought by the employer against its employee to compel an assignment of certain applications for patents made by him when in the company’s employ as chief engineer. Plaintiff contended that it was a condition of his employment and in part consideration of the salary paid him, that all designs, inventions and improvements that he might make or develop and all letters patent obtained by him should become the sole and exclusive property of plaintiff. The agreement, as here, was alleged to have been oral and there was also a great deal of conflicting testimony. In passing on the case the court said (p. 406): “The bill being for specific performance of a contract, such contract must be clearly and unequivocally proved, as stated. As proved, its terms as to subject-matter, consideration and all other essentials must be explicit and unambiguous.”

In Fleischman v. Moore, 79 Ill. 539, the court under similar circumstances held that “upon examination, we do not find that any such contract as complainant alleges in his bill is proven to have existed between the parties by that clear preponderance of evidence which the law undoubtedly requires before a court of equity will decree a specific performance. Indeed, the evidence in the case leaves the mind in great doubt as to what was really the contract between the parties. . . . The contract insisted upon is too indefinite, and the proof too unsatisfactory, to support a decree for specific performance, and the court very properly dismissed the bill.”

. Numerous other decisions cited by defendant are to the same effect, and it is not seriously contended that the law is otherwise.

With reference to Lindberg’s counterclaim for salary, the evidence is likewise in conflict. Plaintiff concedes that it had agreed to pay Lindberg $60 a week, but only in the event that it could afford to make such payments, and the fact that Lindberg served as president for some 5 years without asserting his claim lends color to the contention. However, it was conceded by plaintiff that the company owed him $368.85, which the master found to be due, and the decree should be affirmed as to this item.

During the pendency of this bill a motion was made by appellee for dismissal of the bill. That motion is now denied.

We are of opinion that as to the main litigation the evidence and the circumstances disclosed by the record would not warrant a decree in favor of plaintiff. Therefore the decree of the superior court is reversed with directions to dismiss the complaint and amended and 'supplemental complaint for want of equity; that a money decree be entered in favor of Lindberg and against plaintiff for $368.85 on his counterclaim, and that costs be assessed against plaintiff.

Decree reversed and remanded with directions. Judgment for defendant on counterclaim in amount of $368.85.

Sullivan, P. J., and Scanlan, J., concur.


text:
    Martin J. Berry and Mae Allen, Assignee of Martin J. Berry, Appellees, v. Walter Ackerman, Appellant.
    Gen. No. 40,755.

      Heard in the second division of this court for the first district at the Jime term, 1939.
    Opinion filed May 28, 1940.
    Rehearing denied June 12, 1940.
    Miller, Gorham, Wescott & Adams, of Chicago, for appellant; Herbert C. De Young and Robert E. English, both of Chicago, of counsel.
    Bernard Rosencranz, of Chicago, for appellees.
   Mr. Justice Friend

delivered the opinion of the court.

Martin J. Berry filed an affidavit in attachment on February 29, 1936, alleging that defendant, Walter Ackerman, was indebted to him on a certain promissory note dated April 12, 1929, of which he was the holder, for the sum of $3,500, with accrued interest; that Ackerman was not a resident of Illinois, but resided at 1370 Albany street, St. Paul, Minnesota; and that he had within two years last past fraudulently concealed or disposed of his property so as to hinder and delay his creditors. A writ of attachment issued February 29, 1936, made returnable March 18, 1936, was returned March 9, 1936, showing that the sheriff had levied on Ackerman’s right, title and interest in two certain parcels of real estate situated in Cook county.

March 20,1936, plaintiff filed his amended complaint and thereafter a notice of the issuance of the writ of attachment was published for three successive weeks in the Chicago Daily Law Bulletin, the first publication having appeared on March 21, 1936, and the last publication on the 4th day of April of that year. March 27,1936, the clerk of the superior court filed his certificate showing that he had sent a copy of the notice published to Ackerman at his residence, 1370 Albany street, St. Paul, Minn. For some reason unexplained in the record, a second publication of notice was made in the Chicago Daily Law Bulletin, beginning May 2,1936, and ending May 16, 1936, and May 7, 1936, the clerk of the superior court filed another certificate showing that a copy of the notice of publication had been sent to Ackerman to the same address in St. Paul, Minn. In connection with both publications a certificate was issued by the Chicago Daily Law Bulletin showing that notice was published for three successive weeks, giving the first and last days on which the publication appeared and a copy of the notice, which is identical in both instances.

June 10,1936, a judgment in attachment was entered in the superior court reciting the second publication in the Chicago Daily Law Bulletin; that a copy of the notice published had been mailed to Ackerman at 1370 Albany street, St. Paul, Minn.; that Ackerman had failed to file an answer or otherwise make his appearance in the proceeding and his consequent default; the entry of judgment against defendant on the promissory note with interest; and ordering that special execution issue against the lands and property of the estate attached.

A special writ of execution issued June 16,1936, which was returned by the sheriff, showing that he had on June 17, 1936, levied on Ackerman’s interest in two certain parcels of real estate within the county. The return also bears the indorsement of the clerk of the court, showing that the attachment judgment had been assigned to Mae Allen, and that her attorney had received from the sheriff the sum of $4,736.76 in full satisfaction of the execution.

June 22,1936, after the judgment in attachment had been entered, plaintiff brought his suit in chancery in the superior court against Ackerman and others in aid of the special writ of fieri facias issued in the attachment proceedings to set aside certain transfers alleged to have been made by Ackerman of the two parcels of land which had been levied upon by the sheriff in the attachment proceeding. He alleged that the conveyances were a mere sham, that they were made without consideration, and to defraud, delay and hinder plaintiff in the collection of his judgment; and he sought by this second proceeding to set aside the conveyances and make the real estate conveyed by Ackerman available to satisfaction for the judgment entered in favor of plaintiff in the attachment suit. Summons issued and pursuant to the filing of an affidavit of nonresidence and the mailing of a notice of the pendency of the suit to Ackerman at his residence, 1370 Albany street, St. Paul, Minn., a decree was entered in the superior court on January 28, 1938, finding that plaintiff had on June 10,1936, recovered a judgment against Ackerman; that he was still the owner of the judgment which remained in full force and effect, not reversed, satisfied or otherwise vacated; that no portion thereof had been paid; reciting the several conveyances by Ackerman to his relatives and others, without consideration ; setting aside, canceling and vacating the said conveyances as having been null and void as against plaintiff; and decreeing that plaintiff might proceed upon his writ of fieri facias issued upon the judgment rendered in the attachment suit, or upon another writ to be issued for that purpose, if necessary; and ordering the sheriff proceed to complete the levy upon the real estate conveyed by Ackerman and to sell all his interest therein in satisfaction of plaintiff’s judgment, together with interest and costs.

December 1, 1938, approximately two and one-half years after the judgment in attachment was entered, and 10 months after the decree had been entered in the superior court in the proceeding in aid of the attachment judgment, Ackerman filed a petition in the superior court, “expressly limiting his appearance and that of his attorneys solely to the purposes of this petition,” reciting the various steps in the attachment proceeding, including the judgment in attachment entered against defendant June 10, 1936, and the sale of the real estate levied upon by the sheriff, and seeking to expunge from the record the judgment in attachment upon the principal ground that “notice ... of the institution of and pendency of these proceedings and publication thereof were not given or made within a reasonable time from and after the execution and filing of the affidavit as to the nonresidence of your petitioner, and that by reason thereof the purported judgment in attachment ... is null and void and of no force and effect.”

To' this petition plaintiff filed his answer by leave of court, which was afterward amended, averring that since the chancery proceedings brought in aid of the judgment in attachment involved the same subject matter and parties it settled the validity of the judgment in attachment on the principle of res adjudicata. Plaintiff averred further that the publication of notice in the attachment proceedings was in all respects regular and in accordance with the statute, and that the clerk of the superior court had executed and filed a certificate of mailing notice to defendant March 27, 1936, within 10 days after the first publication of said notice March 21.1936, and only one day after the amended complaint was filed by plaintiff in that proceeding March 20,1936. No reply was filed by defendant, Ackerman, to plaintiff’s amended answer. The court denied the petition and defendant appeals.

As ground for reversal defendant advances the sole proposition that because of the lapse of time between the filing of the affidavit in attachment and the second publication the judgment is null and void and that the court erred in denying his petition to expunge the judgment from the record. Briefly stated defendant takes the position that plaintiff abandoned the first publication and that the default against defendant is necessarily predicated upon the second publication as evidenced by the judgment order; that the hiatus of 63 days between the making of the affidavit on February 29.1936, and the second publication on May 2,1936, was such an unreasonable length of time as to render the judgment void in the absence of the personal appearance of defendant or actual service upon him; and that by reason of these circumstances the court should have expunged the judgment on defendant’s petition. Several Illinois cases are cited to support this contention. The first of these is the early case of Foster v. Illinski, 3 Ill. App. 345. That also was an attachment proceeding. The affidavit alleging that defendants were nonresidents of the State was made on August 2,1877, and filed in the office of the clerk of the circuit court on August 13, 1877, on which latter date the writ was issued. The attachment having come into the hands of the sheriff he levied on certain real estate within the county where the suit was instituted August 13, 1877, and made his return accordingly. It was assigned as error that the writ was improperly issued upon this affidavit, since the latter had been sworn to 11 days before it was filed in the clerk’s office, and the court held that this was an unreasonable length of time. In discussing the question, the court pointed out that the affidavit is the foundation and the commencement of the suit; that although the statute does not provide in terms when it should be made, it is nevertheless necessary that the ground of attachment should exist at the time the proceeding is commenced; that the doctrine of presumption, as known in the law of evidence, that a certain fact or condition, having been proven to exist, its continued existence will be presumed until the contrary is shown, does not apply; and that the proceeding, being purely statutory, a substantial compliance with the provision of the statute is essential to the validity of the judgment. It was said, however, that the filing of the affidavit within a reasonable time after its date would be sufficient, and “what was a reasonable time must depend upon the circumstances of each case. ’ ’

Campbell v. McCahan, 41 Ill. 45, was cited and relied upon in the lllinski case. In that proceeding McCahan brought a bill in equity against defendants to cancel a decree and the proceedings under it which had been obtained by Campbell at a previous term of court. An affidavit of nonresidence of defendants was made 20 days before the bill was filed, and the question arose as to whether this hiatus in time operated to divest the court of jurisdiction to enter the decree. The court called attention to the fact that, by reason of the lapse of time, the affidavit failed to prove that defendants were nonresidents when the bill was filed; that although the Chancery Act was silent as to the time when the affidavit must be made, whether simultaneously with the order of publication or prior to the making of the order, a liberal construction of the statute would require that the suit be filed within a reasonable time after the date of the affidavit, and said (p. 48): “If the affidavit were made years or even months before the order of publication, the time would be unreasonable. It may be difficult to determine what is a reasonable time within which the affidavit must be filed after it is sworn to; but that must depend on the circumstances of each case,” and held that since plaintiff resided in an adjoining county, where his signature to the affidavit could have been procured in a day or two and filed promptly, the period of 20 days was unreasonable and failed to give the court jurisdiction of the person of the defendants.

Rabbitt v. Frank C. Weber & Co., 297 Ill. 491, also cited and relied upon by defendant, presents a state of facts not pertinent to the circumstances of this case. It involved an attachment proceeding, however, and in the course of its opinion the court called attention to the fact that the affidavit is the foundation of the suit, and that it must meet the requirements of the statute in order to confer jurisdiction, if there is no personal service or appearance by defendants, citing Eddy v. Brady, 16 Ill. 306 and Pullian v. Nelson, 28 Ill. 112. The affidavit filed in that case lacked an essential element required by the statute, and was held to be not sufficient to support the judgment. The bailiff had certified that he had mailed a notice to defendants at an address in Chicago where they did not reside, and one of the defendants to whom the notice was sent later appeared and alleged that she knew nothing about the suit. Under these circumstances, it was held that the affidavit for attachment was not merely defective, “but it lacked entirely an essential element to confer jurisdiction. ’ ’

In these cases and others cited and relied upon by defendant the question presented was whether an unreasonable length of time had elapsed between the date on which the affidavit was made and the time when it was filed. The theory upon which the courts concluded that the affidavit must be filed within a reasonable time after it was made is pointed out in several of the decisions. The affidavit, being the foundation and commencement of the suit, it is important that it be filed within a reasonable time after its date, in order to confer jurisdiction upon the court; otherwise it is conceivable that a plaintiff might make and file an affidavit and delay further proceedings thereon for several months or years, as was done in Baldwin v. Ferguson, 35 Ill. App. 393, before the writ of attachment issues, and because of the unreasonable lapse of time that may intervene the defendant’s place of residence may no longer be as indicated in the affidavit. In the case at bar the affidavit was made February 29,1936, and filed on the same day, and the writ of attachment also issued concurrently with the making and filing of the affidavit on February 29, 1936. Under these circumstances we think the jurisdictional defects found in the cases relied upon by defendant have no application to this proceeding. If, as indicated by the decisions, the affidavit is the foundation and commencement of the suit, and no time whatever having intervened in these proceedings between the date of the affidavit, its filing, and the issuance of the attachment writ, we perceive no reason why the court did not obtain jurisdiction and hold it until the judgment was entered.

The principal controversy between the parties, as presented in their briefs, is lodged in the fact that two publications were had. Defendant inferentially concedes that the first publication was made in apt time, but it is argued that this publication was abandoned and superseded by subsequent insertion of notice in the Chicago Daily Law Bulletin, and that too much time elapsed between the two dates. We are unable to ascertain why the second publication was made, but in the view we take it is immaterial. It is uncontroverted that before suit was instituted, and during the time when both the attachment proceeding and the chancery suit were pending, Ackerman resided at 1370 Albany street, St. Paul, Minn., and even as late as May 1,1939, while the cause was pending here on appeal, one of the plaintiffs, in support of a motion for a rule on defendant to furnish a cost bond, filed an affidavit alleging that defendant still resided at the foregoing address. Moreover, the clerk of the superior court thrice mailed him copies of notice of publication in the two proceedings and he failed to appear at any time. It has never been contended that he did not receive these notices nor does he disclaim the debt upon which the suit is founded; he merely- seeks to avail himself of the technical objection that the first publication was abandoned and superseded by the second. The reasonable inference is that he had notice. The authorities relied on by defendant do not support his contention that the lapse of time between the making and filing of the affidavit and the second publication renders the judgment null and void; the unreasonable length of time which the decisions discuss relates to the period between the making and filing of the affidavit and not to the hiatus between the making and filing of the affidavit and publication. Nevertheless, if that were the controlling question we should be obliged to hold that under the circumstances of this case, defendant having at all times resided at the address stated in the affidavit, to which the clerk mailed him notices which he undoubtedly received and no contention being made to the contrary, the length of time intervening was not unreasonable, and that the court had full jurisdiction to enter the judgment in attachment. Certainly defendant was not in anywise prejudiced by the dual publication.

Plaintiff raises other points, including one that the finding as to the validity of the judgment in the chancery proceeding was res adjudicatei, but in view of the conclusions reached on the only proposition advanced by defendant we consider it unnecessary to discuss them. We are of opinion that the court properly dismissed defendant’s petition to expunge the judgment in attachment and the order of the superior court is affirmed.

Order affirmed.

Sullivan, P. J., and Scanlan, J., concur.


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    Alvina Boal, Administratrix of Estate of Arthur R. Boal, Deceased, Appellee, v. John Hancock Mutual Life Insurance Company, Appellant.
    Gen. No. 40,814.

      Heard in the second division of this court for the first district at the October term, 1939.
    Opinion filed May 28, 1940.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellant; Nathaniel Rubinkam and Joseph E. Bell, of Chicago, of counsel.
    Robert Edelson and Aronson & Aronson, all of Chicago, for appellee; J. Henry Aronson and Leo E. Aronson, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Alvina Boal, administratrix of the estate of Arthur R. Boal, deceased, brought suit against John Hancock Mutual Life Insurance Company, defendant, for total and permanent disability benefits under a policy of insurance issued on the life of deceased. The death benefit, less an outstanding loan, was paid in the sum of $3,395.38. Trial by the court without a jury for the recovery of the permanent disability benefits resulted in a finding and judgment against defendant in the sum of $1,494.30, from which this appeal is taken.

The policy issued to Boal in 1918 contained the following provision for total and permanent disability benefits:

“2. Disability Occurring Before Age 60. — If such disability occurs before the Insured reaches the age of 60 years, the Company will waive the payment of further premiums, after the then current policy year, during the continuance of the disability, and, at the end of six months from the date on which the disability is proved, will pay to the Insured, subject to the conditions and limitations of this provision, with the written consent of the assignee, if any, an amount equal to one-tenth of the face amount of the policy, and a like amount annually thereafter during the continuance of the disability, until the maturity of the policy.”

Annual premiums for the disability benefits were paid each year from 1918 until Boal’s death July 16, 1937, a period of nearly 20 years. In 1929 Boal assigned the policy to one Joe Israel, who retained possession thereof until after Boal’s death.

From the testimony of numerous witnesses, including friends, business associates and physicians, it appears that in the latter part of 1934 Boal became both physically and mentally incapacitated. His physician ascribed his impairment to a multiple sclerosis, resulting in drawling speech, incoherence, difficulty in gait and walking, exaggerated reflexes in his arms and legs, a sidewise jerk of the pupils or eyeballs, and spasticity in both legs. His mental condition was permanently and incurably impaired, and he appeared “as a man who had a brain accident.” He was physically and mentally unable to do anything that required responsibility or physical labor, and prevented from the pursuit of any form of activity for compensation, gain or profit. The testimony of numerous other witnesses corroborated his physician’s testimony, and leaves little room for doubting the conclusion reached by the court that he was permanently and totally disabled within the meaning of the provisions of the policy, subsequent to March 3, 1935, and until his death July 16, 1937. Defendant introduced no countervailing proof, from which the court could have reached any other conclusion.

As ground for reversal it is urged that the receipt by the insurer of due proof of total and permanent disability is a condition precedent to any liability under, the policy sued upon. This requires a consideration of the disability clause hereinbefore set forth. Defendant takes the position that the policy makes the furnishing of proof a condition precedent to liability for disability benefits. It is argued that under the provisions of the policy disability payments “shall not begin until six months after the receipt of due proof”; that no proof of disability was furnished to defendant until July 9, 1937, which was seven days before insured’s death, and therefore under, the terms of the contract no liability for disability benefits could possibly accrue until January 9,1938, the date of the expiration of the six-month period after receipt of proof.

The reason assigned by plaintiff for failure to submit proof of Boat’s disability in 1935, when he first became totally and permanently disabled, is that Boal had never discussed any business matters with his wife, the beneficiary, who, according to the uncontroverted testimony did not know the insurance policy had been kept up after the year 1929; that the policy was not in possession of deceased subsequent to 1929; that because of his mental condition he was incapacitated from making proof of his disability from the date of his illness until his death. Proof of disability was first submitted to defendant’s agent July 2, 1937, by attorneys for deceased, who enclosed statements of attending physicians, letters from two business associates, and other competent proof that Boal had been continuously and permanently prevented from the pursuit of any mental or manual labor since March 3, 1935, and requested payment of disability benefits from that date. July 19, 1937, the company, by its agent, acknowledged receipt of claimant’s statements, and advised his attorneys that the claim had been allowed as of July 9, 1937.

The principal question involved is whether the disability clause is susceptible to the interpretation urged by defendant, namely, that the policy makes the furnishing of proof a condition precedent to liability for disability benefits, or whether the particular provision of this policy, unlike any other that has been called to our attention, entitles insured to recover benefits from the date that disability occurred. The clause in question states that if total and permanent disability should occur, the company will waive payment of further premiums for the then current premium year, “and at the end of six months from the date on which the disability is proved, ’ ’ would pay to insured certain sums therein mentioned. Plaintiff argues that the language employed is ambiguous and subject to two interpretations, and that in case of uncertainty in the language of insurance policy contracts, courts will construe them most strongly against the insurer and liberally in favor of the insured. The law is well settled that if an insurance contract is so drawn as to be equivocal, uncertain or ambiguous, as to require interpretation because fairly susceptible to two or more different, but sensible and reasonable constructions, the one will be adopted which, if consistent with the object of the insurance, is most favorable to the insured. In other words, a contract of insurance couched in language chosen by the insurer is, if open to the construction contended for by the insured, to be construed most strongly or strictly against the insurer and liberally in favor of the contention of the insured. (Couch on Insurance, vol. 1, sec. 188; Midwest Dairy Products Corp. v. Ohio Casualty Ins. Co., 356 Ill. 389; Vollrath v. Central Life Ins. Co., 243 Ill. App. 181.) The argument of counsel for the respective parties leaves little room for doubt that the language contained in the disability provision of this policy is ambiguous and subject to two interpretations.

The immediate question is to determine the fair and reasonable meaning of the provision, “and at the end of six months from the date on which the disability is proved. ” It is just as reasonable to hold that the word, “proved,” means that time when the disability actually occurred or happened, as to interpret it to mean that disability payments should not be made until at the end of six months after the receipt of due proof by the company. Webster’s International Dictionary, second edition, defines the word, “proved,” as “to be, to turn out to be; to experience; to be in fact; suffer. ’ ’ According to the undisputed evidence and the findings of the court, Boal’s total and permanent disability occurred, or, “turned out to be,” and, “was a fact,” on March 3, 1935. Defendant seeks to have us construe the pertinent language of the disability clause in its favor by reading into it by construction and interpretation the words, “after the receipt of due proof of disability by the company” ; however, the policy does not contain the express language contended for by defendant. Nor should the court in view of the ambiguity which we think exists, and which makes the policy subject to two interpretations, create a condition precedent out of language which would have to be inserted in the policy for the benefit of defendant in order to sustain its position.

The several cases cited by defendant to support its interpretation of the disability clause are readily distinguishable. In one of them, Jabara v. Equitable Life Assur. Society, 280 Ill. App. 147, the policy provided the “first payment to be payable upon receipt of due proof of such disability. ’ ’ The court held that the policy was clear and unambiguous and that the language left no room for interpretation. It referred to Equitable Life Assur. Soc. of U. S. v. Felton, 189 Ark. 318, 71 S. W. (2d) 1049, where the policy was identical in terms with the contract in the Jabara case, wherein recovery was allowed the administratrix from the date of the assured’s permanent disability, “because he was mentally incapacitated from making proof of his disability from the date he was disabled. ’ ’ Obviously, the rule in the Jabara case does not apply in cases of ambiguity, and would have been determined favorably to the insured if there had been an- ambiguity.

In Bergholm v. Peoria Life Ins. Co., 284 U. S. 489, 76 L. Ed. 416, 52 Sup. Ct. 230, also cited by defendant, the court had under consideration the construction of a disability clause, and it was there held that the obligation of the company did not rest upon the existence of the disability, but upon the receipt by the company of proof of the disability, which was definitely made a condition precedent to an assumption by it of payment of the premiums becoming due after the receipt of such proof.

The Bergholm decision is cited and commented upon in Steffan v. Bankers Life Co. of Iowa, 267 Ill. App. 248, another decision relied upon by defendant. In that case the policy specifically provided for disability benefits upon receipt of due proof of such disability, and the court discussed the ruling in the Bergholm case in connection with its conclusion that the provision of the disability clause in the Steffan case was not ambiguous and that there was an express condition precedent.

In two other decisions cited by defendant, New York Life Ins. Co. v. Jackson, 188 Ark. 292, 65 S. W. (2d) 904, and Egan v. New York Life Ins. Co., 67 F. (2d) 899, the courts held that the provisions of the policies for disability payments were plain and unambiguous, and that the courts were therefore not called upon to construe or interpret them.

It thus appears that in each of the decisions cited by defendant there was either an express condition precedent, or the terms of the policy were so clear and unambiguous as to require no interpretation. We have already indicated that in our opinion an ambiguity exists in the disability clause of the policy here under consideration, and that the court will not read into the contract a condition precedent which does not appear from the express terms of the contract. We are therefore impelled to hold that the court will refuse its aid to rewrite a policy in favor of the company in order to defeat the claim of the insured and thereby create a forfeiture, and that a condition tending to defeat a policy must be expressed or so clearly implied that it cannot be misconstrued. (Bolton v. Standard Life Ins. Co., 219 Ill. App. 177; Fire Ass’n of Philadelphia v. Short for use of Short, 100 Ill. App. 553; Mulconery v. Federal Automobile Ins. Ass’n, 230 Ill. App. 236.)

The only other point urged by defendant is that the physical or mental incapacity of deceased does not excuse the filing of proofs by the insured or someone in his behalf. Defendant manifestly raises this question only because it contends that the policy in question is clear and unambiguous; that the receipt of notice by the company is expressly made a condition precedent to insurer’s liability by the very terms of the policy; and therefore no liability attaches until after the submission of proofs. However, in view of our conclusion that the policy is reasonably susceptible to the interpretation that the company became liable from the date the disability occurred, and should be construed in favor of plaintiff, there is no occasion for considering the second point, since the provision in question does not constitute a condition precedent and defendant had on July 19, 1937, approved the evidence of disability submitted to it for the period during which disability benefits were claimed, namely, March 3,1935, and until Boal’s death.

In conformance with the views herein expressed the judgment of the municipal court should in all respects be affirmed. It is so ordered.

Judgment affirmed.

Sullivan, P. J., and Scanlan, J., concur.