author: Mr. Presiding Justice Riess

text:
    First Trust Joint Stock Land Bank of Chicago, Appel-lee, v. Luella Cutler et al., Appellants.
    Gen. No. 9,199.
    Heard in this court at the October term, 1939.
    Opinion filed March 7, 1940.
    Springstun & Springstun, of Pana, and Brown, Springstun, Sloan & Donovan, of Detroit, Michigan, for appellants.
    Dove & Dove, of Shelbyville, for appellee.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

The above cause comes before this court for the third time upon an appeal by the defendants from certain orders and decrees of the circuit court of Shelby county, in a real estate mortgage foreclosure proceeding wherein the First Trust Joint Stock Land Bank of Chicago is the plaintiff appellee and Elmer Cutler and others are defendants appellants.

In the first instance, all of the defendants named in the original complaint except Elmer Cutler sought to appeal from an order denying their motion in the nature of a demurrer to dismiss the complaint and ruling the defendants to answer thereto within 10 days, and a cross appeal was sought by the plaintiff from that portion of said order granting the motion as to the defendant Elmer Cutler. Both the appeal and cross appeal were dismissed by this court for reasons set forth in that opinion, which was reported as First Trust Joint Stock Land Bank of Chicago v. Cutler, 286 Ill. App. 6, 2 N. E. (2d) 758.

An amended complaint and amendments thereto were then filed in the trial court, to which defendants filed motions to dismiss, which were overruled and answers and amendments thereto were then filed by the defendants. The cause was duly heard and a decree of foreclosure and for sale of all interest of the defendants in the premises except that of Elmer Cutler was entered by the chancellor, subject to statutory right of redemption, from which decree an appeal and cross appeal was taken to this court wherein that decree was reversed and the cause remanded for reasons fully set forth in the latter opinion. (First Trust Joint Stock Land Bank of Chicago v. Cutler, 293 Ill. App. 354, 12 N. E. (2d) 705.)

A second amended complaint was then filed, motion of defendants to strike the same was denied and issues were joined by answers filed by certain of the defendants and default entered as to the remainder. The cause was duly heard; a decree of foreclosure and for equitable relief was entered against all defendants; the mortgaged premises were sold subject to rights of redemption; certain rentals in the hands of the receiver theretofore duly appointed by the court, together with the amount of the purchaser’s bid, was credited upon the mortgage indebtedness, and a deficiency decree for $1,300 was entered against said defendants. Motion to set aside all of said orders and decrees was denied. This appeal by the defendants then followed.

The opinion of this court upon the second appeal, supra, fully and substantially states the facts again set forth in the pleadings and sustained by the proofs herein, and the opinion of this court therein fully disposed of the principal contentions and reassignments of error argued by the defendant appellants upon this appeal. We adhere to that opinion and the holdings therein as applicable to and controlling under the same or similar assignments of error by the defendants upon this appeal.

In that opinion this court held that the notes and mortgage sued upon were jointly and severally valid and binding as against the defendants owning a life estate and an undivided three-fourths interest in fee simple in and to the premises described in the mortgage and that as to defendant Elmer Cutler who owned the remaining one-fourth interest in fee simple and was a minor when the note and mortgage were executed by Alvin R. Cutler as his guardian pursuant to an order of the county court of Shelby county, the same was not void but was voidable; that since the first amended complaint did not predicate the cause of action upon ratification of the transaction after said defendant had become of age, no different relief could be granted than that prayed for in the complaint.

The second amended complaint, however, specifically sets forth sufficient facts alleging such ratification and praying suitable relief against the defendant Elmer Cutler. Specific findings of fact concerning such ratification were made by the trial court in its decree, which findings we deem to be in accord with the greater weight of the evidence, and we find and hold that the voidable note and real estate mortgage of the undivided one-fourth interest of said defendant was not voided but was fully and understandingly ratified and reaffirmed by the defendant Elmer Cutler after he attained the age of 21 years, and that the plaintiff ap-pellee was entitled to the relief granted by the chancellor against all defendants in the court below.

While we have not discussed, we have fully considered all of the assignments of error set forth by the defendants and we find no reversible error in the record. The orders and decree of the circuit court of ■ Shelby county from which this appeal was taken are therefore affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Plaintiff in Error, v. Russell Purcell and Carl Siegle, Defendants in Error.
    Gen. No. 9,209.

      Heard in this court at the October term, 1939.
    Opinion filed March 7, 1940.
    Merrill H. Johnston, of Pittsfield, for plaintiff in error.
    Graham & Graham, of Pittsfield, for defendant in error Carl Siegle.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

This case comes up from the circuit court of Pike county, upon writ of error on behalf of the plaintiff to review a final order of said court quashing an indictment returned by a grand jury of that county against the defendants in error, Russell Purcell and Carl Siegle. The first count charges in substance that the defendants conspired and agreed together to do certain illegal acts injurious to the public morals by playing for money at a game of cards; the second count with so conspiring to play with cards and use of poker chips of value; the third count with so conspiring to bet upon such game of chance, and the fourth count with so conspiring and betting upon a game of cards upon which money was hazarded, all contrary to the form of the statute and against the peace and dignity of the people of the State of Illinois.

Defendant Carl Siegle filed a motion to quash each of the counts on the ground that no crime under the laws of the State of Illinois was therein set forth, since a concert or plurality of agents are necessary elements of the. substantive offense of gaming therein charged, for the commission of which the conspiracy is alleged to have been formed by and between the two defendants, and for other reasons not argued upon appeal and which need not be considered herein. The motion to quash the indictment was granted by the trial court, the defendants were discharged and this writ of error is prosecuted under the provisions of par. 747, ch. 38, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 37.732].

It is conceded that the principal grounds upon which the court based its decision as to each count was that the substantive offense of gaming’ requires the concerted action of two or more persons or a plurality of agents in its commission; that the substantive offense of gaming as therein charged could not be individually committed by each of the two defendants, but required their concerted action and that, therefore, under the well-recognized doctrine and rule of law set forth in certain texts cited as “Wharton’s Rule” and followed in numerous decisions by American Federal and State Courts, a charge of conspiracy would not lie. In support of this contention, many cases are cited by the defendant in error and none holding directly to the contrary under similar circumstances have been called to the attention of the court by the plaintiff in error. No decision thereon by a court of review of this State has been cited by either party, and so far as we have been able to ascertain, no similar attempt has been heretofore made to prosecute an ordinary gaming charge under the conspiracy statute (par. 139, ch. 38, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 37.102]).

Here, it appears from the allegations of the indictment that two men agreed to play cards with chips, for money; acts expressly prohibited by our statute and made punishable by a fine (par. 324, ch. 38, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 37.248]). It is pointed out by the defendant that gaming at cards engaged in by two persons is a substantive offense which could not be committed by either defendant singly and could only be committed by the concerted- action of both parties.

The general rule that where a concert of action is necessary to the commission of the substantive offense a charge of conspiracy does not lie, is well defined in the text of 11 Am. Jur. 556, par. 20; 5 R. C. L. 1072, par. 11; 15 C. J. S. 1073, par. 47b, 12 C. J. 554; par. 19, and in comments concerning cases cited in notes thereunder. The rule is also stated in Wharton, 2 Crim. Law, sec. 1339, and 12th Ed. (1932) sec. 1604, p. 1862. Cases involving the recognition and application of the above doctrine to such offenses as bigamy, bribery, adultery, fornication, dueling, incest, rebating and similar offenses in which an indictment will not lie for conspiracy against two persons only, which charges them with an agreement to commit offenses wherein concert of action and plurality of agents are indispensable to the commission of the substantive offense, are collated and analyzed in annotations to 11 A. L. R. 196 et seq.; 104 A. L. R. 1423, 1430, and 84 A. L. R. 370, 376.

To that effect are holdings in State v. Law, 189 Iowa 910,179 N. W. 145,11 A. L. R. 194; State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N. W. 1046, 62 L. R. A. 700, 15 A. C. R. 332; People v. Wettengel, 98 Colo. 193, 58 P. (2d) 279, 104 A. L. R. 1423; Commonwealth v. Bricker, 74 Pa. Super. Ct. 234; Shannon v. Commonwealth, 14 Pa. 226; United States v. Dietrich, 126 Fed. 664; Miles v. State, 58 Ala. 390; United States v. New York Cent, & H. R. Co., 146 Fed. 298, aff’d 212 U. S. 481, 500, 53 L. Ed. 613, 624, 29 Sup. Ct. 304, 309; United States v. Burke, 221 Fed. 1014, rev’d 234 Fed. 842; Gebardi v. United States, 287 U. S. 112, 77 L. Ed. 206, 53 Sup. Ct. 35, 84 A. L. R. 370; Umted States v. Sager, 49 F. (2d) 725; Norris v. United States, 34 F. (2d) 839; People v. Keyes, 103 Cal. App. 624, 284 Pac. 1096, 1105; and United States v. Hagan, 27 F. Supp. 814.

The rule does not apply, however, where the substantive offense can be committed by a single individual. United States v. Shevlin, 212 Fed. 343; Chadwick v. United States, 141 Fed. 225; Laughter v. United States, 259 Fed. 94, cert. den. 249 U. S. 613, 63 L. Ed. 802, 39 Sup. Ct. 388; Lisansky v. United States, 31 F. (2d) 846, 67 A. L. R. 67 (writ of cert. den. 279 U. S. 873, 73 L. Ed. 1008, 49 S. Ct. 514).

Nor does the rule ordinarily apply when the substantive offense involves the co-operation of a greater number of persons than were necessary to its commission. Thomas v. United States, 156 Fed. 897, 17 L. R. A. (N. S.) 720; McKnight v. United States, 252 Fed. 687, cert. den. 249 U. S. 614, 63 L. Ed. 802, 39 Sup. Ct. 88; Vannata v. United States, 289 Fed. 424; Ex parte O’Leary, 53 F. (2d) 956. Certain restrictions in the application of the rule which do not apply to the instant case are also pointed out in State ex rel. Durner v. Huegin, supra.

The rule was applied in charges of conspiracy between a man and a woman to commit adultery or fornication in the cases of Vannata v. United States; State v. Law; Shannon v. Commonwealth, and Miles v. State, all cited supra.

In State v. Law, supra, a demurrer was filed and sustained to an indictment charging two defendants, a man and a woman, with conspiring and agreeing to meet together in a hotel room in Des Moines for the purpose of committing adultery. Upon appeal, the application of the above doctrine was discussed and the Supreme Court of Iowa there said: “The precise question presented has not been passed upon by this court, but has been before the courts of other jurisdictions. So far as we are advised, they have uniformly held that an agreement to commit an offense, which can only be committed by the concerted action of the two persons to the agreement, does not amount to conspiracy.” (Then follow citations in support thereof.) The court concludes that “The agreement charged in the indictment is limited to the defendant and the woman with whom the unlawful act was committed. There was no participation therein by a third person. In harmony with the uniform course of judicial decisions, we hold that the indictment does not charge crime. ’ ’

A leading federal case making application of the above rule which is frequently cited is that of United States v. Dietrich, supra, wherein it was charged that a member of Congress had conspired and agreed with a Nebraska constituent that said member should receive and the constituent should pay him a sum of money for the “use of the influence incident to his official position” in the procurement of a federal appointment, in violation of sec. 1781, R. S. U. S. (18 U. S. C. A., sec. 199), in which opinion it is said: “A person cannot agree with himself, receive from himself or give to himself. The concurrent and several acts of two persons are necessary to the act of agreeing, receiving or giving. In this respect, agree-' ing to receive a bribe from another and agreeing to give one are unlike soliciting or offering a bribe, because the solicitation or offer may be the act of a single person and may occur without any concurrent act of another. The rule stated by Wharton (2 Cr. L., sec. 1339) is applicable here: ‘When to the idea of an offense plurality of agents is logically necessary, conspiracy, which assumes the voluntary accession of a person to a crime of such a character that it is aggravated by a plurality of agents, cannot be maintained. ’ As crimes to which concert is necessary (i. e., which cannot take place without concert), we may mention dueling, bigamy, incest and adultery, to the last of which the limitation here expressed has been specifically applied by authoritative American courts.”

It is said in United States v. Shevlin, 212 Fed. 343, that, “when an offense necessarily involves an unlawful agreement between two or more persons, the parties thereto cannot be charged with conspiracy for having made such an agreement, but must be prosecuted for the principal offense. ’ ’ But this rule, it was held, did not apply in the case before the court, because neither smuggling nor defrauding the customs, the offenses which the indictment charged a conspiracy to commit, necessarily involves an agreement between two or more persons, but may be committed by a single individual. 11 A. L. R 200.

The case of Gebardi v. United States, supra, illustrates the extreme care with which the courts in recognizing the above doctrine, have applied or restricted its effect under varying facts and circumstances. In that case, the petitioners, a man and a woman, had been convicted of conspiracy to violate the “Mann Act” (36 Stat. at L. 825, ch. 395, 18 U. S. C. A., par. 397) wherein she had been transported across the State line between Illinois and Wisconsin to engage in isolated acts of immoral conduct with the codefendant. Upon certiorari to review the judgment of conviction, the court, speaking through Mr. Justice Stone, said: 1 ‘ Congress set out in the Mann Act to deal with cases which frequently, if not normally, involve consent and agreement on the part of the woman to the forbidden transportation. In every case in which she is not intimidated or forced into the transportation, the statute necessarily contemplates her acquiescence. Yet this acquiescence, though an incident of a type of transportation specifically dealt with by the statute, was not made a crime under the Mann Act itself. Of this class of cases we say that the substantive offense contemplated by the statute itself involves the same combination or community of purpose of two persons only which is prosecuted here as conspiracy. If this were the only case covered by the Act, it would be within those decisions which hold, consistently with the theory upon which conspiracies are punished, that where it is impossible under any circumstances to commit the substantive offense without co-operative action, the preliminary agreement between the same parties to commit the offense is not an indictable conspiracy either at common law,” (here follow numerous citations, given supra) “or under the federal statute.” (Citing United States v. Dietrich, and other cases, supra.) The court concludes that “On the evidence before us the woman petitioner has not violated the Mann Act, and, we hold, is not guilty of a conspiracy to do so. As there is no proof that the man conspired with anyone else to bring about the transportation, the convictions of both petitioners must be reversed.”

The agreement charged in the indictment herein is limited to the two defendants charged with the substantive offense. There was no participation therein by a third person and neither of the parties could have committed the substantive offense alone and without the concerted action of the other. Consonant with the well-established trend and authority of judicial decisions, we hold that the indictment herein does not charge a crime and that the circuit court of Pike county did not err in quashing the same and in discharging the defendants from prosecution on the charge of conspiracy set forth in the indictment.

The final order and judgment of said court will therefore be affirmed.

Affirmed.


author: Mr. Presiding Justice Ribss

text:
    Harry D. Brelsford, Appellant, v. George F. Stoll, Appellee.
    Gen. No. 9,228.

      Heard in this court at the January term, 1940.
    Opinion filed March 7, 1940.

      Edwin C. Mills, of Lincoln, for appellant.
    Trapp & Trapp, of Lincoln, for appellee.
   Mr. Presiding Justice Ribss

delivered the opinion of the court.

The plaintiff, Harry D. Brelsford, has appealed to this court from a decree entered in the circuit court of Logan county, Illinois, awarding him damages in the sum of one hundred and fifty dollars and costs of suit against the defendant appellee, George F. Stoll, but denying him the equitable relief sought in an action for dissolution and accounting of an alleged partnership relation between said parties in the ownership and operation of certain pinball machines and for the appointment of a receiver to take charge of the assets pending such litigation.

The defendant Stoll, in his answer, had denied the existence of such partnership relation and claimed that the purchase and operation of the machines in question was a joint venture, wherein he haj subsequently purchased from the plaintiff all of his interest, profits and good will for a consideration of $1,500, upon which $1,350 of such purchase price had been paid. The court so held and entered judgment for said alleged balance.

It appears from the evidence that in the spring of 1936, said parties had entered into an arrangement whereby the plaintiff, who was employed in the city of Lincoln and conducted a tavern known as Maple Hall at the outskirts of said city, had advanced $765 in money, and that the defendant, who conducted a radio and phonograph sales and repair shop in said city, had furnished his labor and services and certain moneys in connection with the purchase, instalation, repair and operation of said pinball machines and enterprise with the oral understanding that said parties were to share equally in the profits thereof,

It further appears that during the month of June, 1936, such machines, designated as “Palooka,” “Western Pacers” and by other trade names, into which money was played by the general public, were so purchased and installed in taverns and places of business designated as “spots” or locations, and so operated by them until December, 1937. Payments from moneys so played into the machines, called the “take,” were paid by the defendant to the plaintiff in the aggregate amount of $700 during said period. During the latter month, it appears that an accounting was had by said parties whereunder the plaintiff contended that it was agreed that his share of such profits arising from the operation of said machines prior to that time was $1,500 and that a partnership relation continued thereafter under which he was entitled to an accounting in equity, while defendant contended that at said time the parties agreed that all interest of the plaintiff in said machines, locations, accrued profits and good will of said enterprise was sold by the plaintiff to him for a purchase price of $1,500, payable in instalments, all of which payments were subsequently made except the amount of one hundred and fifty dollars for which the judgment was entered herein.

Plaintiff assigns as error (1) the failure of the court to find that a partnership relation existed prior to and after December 15, 1937, which entitled him under the evidence to an equitable accounting of profits accruing after the latter date; (2) in admitting testimony on behalf of the defendant describing the manner in which the games were operated, tending to show that the same were gambling devices, to the prejudice of the plaintiff, and (3) in refusing to permit plaintiff to testify that it was his intention to enter into a partnership when the conversations and transactions took place between the parties.

In the defendant appellee’s brief, he has stressed the contention that the entire venture was in the nature of a gambling enterprise upon which no recovery could be had in a court of equity or otherwise.

While the nature of the alleged contract was not set up in the pleadings, it clearly and conclusively appears from the evidence and record herein that the entire enterprise and venture entered into by the parties consisted of an illegal arrangement for the purchase, location and operation of machines to be used as gambling devices in places of public resort into which five cent coins were played by the general public on the chance of having larger sums of money in varying amounts automatically released and returned into receptacles attached to the machines, which in some instances were designated as “jackpots” and in excess of thirty dollars, while in others the pinball operated by a spring and plunger would make no return whatever on the money played into the slots. It was the so-called ‘ ‘ take ’ of moneys played by the public into these devices so used and intended to be used by both parties as games of chance which were to constitute the so-called profits of such enterprise upon which their purported contract was based.

The court did not err in permitting the actual purpose for which the alleged oral contract was entered into by the parties to be shown by the evidence, although the same might appear legal on its face. (Craft v. McConoughy, 79 Ill. 346.) That the plaintiff might testify to his intention to enter into a partnership relation would be immaterial in view of the actual nature of the enterprise and transactions, which were expressly forbidden by the provisions of the Criminal Code.

The alleged contract was illegal and void from its inception as contravening the provisions of the gaming statutes of Illinois and against public policy and was therefore unenforceable in whole or in part in a court of equity. All contracts and agreements entered into or executed by any person whatsoever, where the whole or any part of the consideration thereof shall he any money, property or valuable thing won by gaming is expressly declared by sec. 329, ch. 38, Ill. Eev. Stat. 1939 [Jones Ill. Stats. Ann. 37.259], to be void and of no effect.

Where persons engage in the unlawful business of gaming, courts will not assist either one but will leave them where they placed themselves. (Samuels v. Oliver, 130 Ill. 73, 22 N. E. 499.) As is said in Shaffner v. Pinchback, 133 Ill. 410, 24 N. E. 867, at p. 413: “Plaintiff in error having embarked his money in an enterprise prohibited alike by the statute, by good conscience and by public policy, placed himself and his money outside of the pale of the law, and if he has been despoiled by the failure of his associate to account for the funds placed in his hands for the purpose of carrying on the unlawful business, then both good morals and public policy require that the law should not aid him.” To the same effect is Israel v. Selman, 263 Ill. App. 351.

This principle was early announced and has been uniformly adhered to by the courts of review of this State. In the case of Miller v. Davidson, 8 Ill. (3 Gil.) 518, decided in 1846, Justice Catoh used this language: “No principle is better settled, than that where two or more persons embark in an unlawful transaction, and one gets the advantage of the others and appropriates more than his proportion of the spoils to himself, the court will not interfere to make him divide with the others. As they commenced with a violation of the law, they can not invoke its aid in any way. The law will not meddle with gains obtained by its own outrage, as between those who have been engaged in trampling it under foot. ’ ’

The above principle was again cited with approval in Mitchell v. Clem, 295 Ill. 150, 128 N. E. 815, at p. 156, and in the recent case of Klein v. Chicago Title & Trust Co., 295 Ill. App. 208, 14 N. E. (2d) 852, at p. 221. In the case of Mitchell v. Clem, supra, it was further held that while ordinarily, as between the parties, a defense must be set up in the answer, a bill in chancery could be dismissed if the chancellor found that the public interest and the rules of equity demanded such a decree. It was there said (p. 156):

“Another application of the rule of equity is, that where a contract is illegal or against public policy a court of equity will not, at the suit of one of the parties who participates in the illegal or immoral intent, either compel the execution of the agreement or set it aside after it has been executed, because to give relief in such a case would injure and counteract public morals. (St. Louis, Jacksonville and Chicago Railroad Co. v. Mathers, 71 Ill. 592; Craft v. McConoughy, 79 id. 346.) This application of the rule is not in the interest of any party to the illegal or immoral transaction but in the public interest, and so far as dismissing the bill is concerned, the chancellor might do that and leave the parties where he found them without the defense being set up in an answer.”.

To the same effect is the case of Vock v. Vock, 365 Ill. 432, 6 N. E. (2d) 843, at p. 435, wherein the above-quoted language and citations are restated with approval by the court and it is further there said that “The law is that where the parties are in pari delicto no affirmative relief of any kind will be given to one against the other.” And concerning the pleadings, it is there said (p. 436)-that “The defendant, appellee here, claims that no defense was interposed to the counterclaim and that it should therefore be taken as confessed.” “This court will not afford a party relief under an agreement confessedly void as against public policy, even though the question is not raised by an adversary.”

The transaction in which the parties were engaged, being against public policy, their purported contract, so far as it remains executory, cannot be enforced by either party; nor can either party maintain an action against the other for any right growing out of such contract, or of the illegal transaction in which they were engaged. The law simply refuses its assistance to either party. Samuels v. Oliver, supra (p. 86).

A contract expressly prohibited by a valid statute is void. This proposition has no exception, for the law cannot at the same time prohibit a contract and enforce it. The prohibition of the legislature cannot be disregarded by the courts. De Kam v. City of Streator, 316 Ill. 123, 129, 146 N. E. 550. And a judgment so taken upon a gambling contract prohibited by statute is void. Vennum v. Carr, 130 Ill. App. 309; West v. Carter, 129 Ill. 249, 21 N. E. 782.

Here, the parties were jointly engaged in an enterprise that was illegal and contrary to public policy wherein they stood in pari delicto. Whenever the illegality of their alleged contract and enterprise appears, whether the evidence comes from one side or the other, the disclosure is fatal to the case and no valid judgment can properly be entered recognizing and enforcing the purported terms of such void contract in whole or in part, when the public interest so appears, whether or not the same is set up in the answer. Newman v. Ross, 202 Ill. App. 499; Vock v. Vock, supra.

While the court below properly admitted evidence which clearly and conclusively established the illegal nature of the gambling contract, no finding was made in relation thereto. A court of equity will not take jurisdiction and grant affirmative relief in enforcing or executing contracts which are illegal or against public policy and should dismiss complaints in such causes for want of equity and for lack of jurisdiction of the court to grant any relief therein. Flack v. Warner, 278 Ill. 368, 376, 116 N. E. 202.

We find, upon reviewing the record, that it clearly and conclusively appears from the evidence that the contracts and transactions in evidence herein were knowingly entered into by both parties for the purpose of conducting and operating an illegal gambling enterprise and business contrary to law and against public policy and that the relief sought and money sued for by the plaintiff and the amount found and adjudged to be due by the trial court was based upon and a part of said illegal transactions; that such contract and transactions between said parties were illegal and void ab initio; that the chancellor below did not err in denying equitable relief to the plaintiff, but erred in adjudging any am.ount to be due the plaintiff from the defendant upon such illegal and void contract and transactions.

The decree of the circuit court of Logan county is therefore reversed and the cause remanded with directions to set aside the judgment in favor of the plaintiff for one hundred and fifty dollars and costs and dismiss the complaint for want of equity at the costs of the plaintiff.

Reversed and remanded with directions.


author: Mr. Justice Hayes

text:
    Amos Hooker, Appellant, v. Farmers Mutual Reinsurance Company, Appellee.
    Gen. No. 9,207.

      Heard in this court at the October term, 1939.
    Opinion filed March 7, 1940.
    Rehearing denied April 3, 1940.
    Steely, Steely, Graham & Dysert, of Danville, for appellant; H. M. Steely, Jr. and Walter V. Dysert, of counsel.
    Acton, Acton & Baldwin, of Danville, for appellee; W. M. Acton, and John M. Bookwalter, of Danville, of counsel.
   Mr. Justice Hayes

delivered the opinion of the court.

This is an appeal from the circuit court of Vermilion county in an action by the plaintiff against the defendant insurance company, to recover twelve hundred ($1200.00) dollars for the loss of hay destroyed by fire on August 20, 1938. At the close of plaintiff’s case, the court directed a verdict for the defendant. Judgment was entered against the plaintiff in bar of the action and for costs, from which judgment plaintiff appeals.

The complaint declares on a policy of fire insurance issued by the defendant, bearing policy number 30700, which became effective August 13, 1935, and was to be in force for one year, with a provision that it could be automatically renewed for such like successive terms of one year each, not to exceed four years. Complaint alleges that said policy was renewed for two such yearly terms, and about 30 days prior to the expiration of the third year, — August 13,1938 — plaintiff made an oral agreement with defendant, through its local agent, to renew said policy for another year. Complaint further alleges that on August 20, 1938, the hay, covered by said policy, was destroyed by fire. Plaintiff charges that it was the custom and practice of said defendant, through its local agent, to renew and extend plaintiff’s insurance, carried with the defendant, from time to time before it lapsed so that it would not lapse.

Defendant, in its answer, denies liability; denies the renewal of the policy or the authority of the agent to make an oral agreement for a new policy; admits that Fred Watson is a special agent of the defendant, but avers his authority is limited to the solicitation of applications for insurance.

The proofs tended to show that the policy in question was executed by the defendant, with the signature of the president and secretary of the company thereto attached, and that it was effective August 13, 1935, at noon, to be in force for one year, with a provision that it “may be automatically renewed for like successive terms for one year each not exceeding four, if an amount equal to the initial payment is paid on or before the expiration of the then current term.”

The policy, and the documents attached to it, are very long and involved, covering 24 pages in the record. The proofs show that this policy was renewed for two terms following the initial term, which brought the expiration date of the policy up to the 13th day of August, 1938.

The plaintiff testified that in April, preceding the expiration of this policy, he held another policy with the same company. At that time Fred Watson, the agent, with another man called on him at his office, and plaintiff signed an application for the renewal of this policy. Watson then went to plaintiff’s wife and received a check for the premium, and the company mailed him the policy. Plaintiff further testified to getting renewals with another agent of the same company, as he had five or six live policies in force with the defendant. Plaintiff stated that one day, in the latter part of June, 1938, he was in the Fitzsimmon’s restaurant and had a conversation with Watson the agent, in regard to the renewal of the policy in question. There were several others present, and the agent told him then that his hay policy was coming due shortly, and asked him what he wanted to do about it. Plaintiff told him he wanted it renewed, and that he would depend on Watson to take care of it. The agent replied "that he would. Plaintiff told him to call at his farm to see his wife and get a check for it.

Plaintiff’s wife testified that Watson came to their home in July, 1938, and stated that Mr. Hooker wanted him to renew the insurance, and also wanted him to cover some other property. She said she didn’t understand it but would call Mr. Hooker, whereupon Watson said it was not necessary to call her husband as there was plenty of time and he would come back again. The hired man corroborated her testimony, and stated that Watson did not ask for the payment, but just said he came to fix the insurance. Plaintiff’s conversation at the restaurant with Watson was confirmed by four other witnesses.

Under the terms of the policy, all that was needed to make the renewal was payment of the premium prior to August 13,1938. This premium was not paid. Plaintiff contends it was waived by the agent Watson. Defendant insists Watson was a special agent with limited authority to receive applications and forward them to the home office. The proofs show, that on at least one other occasion prior to this time, Watson had collected the premium on another policy belonging to plaintiff from plaintiff’s wife, and the company ¡ratified his act by issuing the renewal and forwarding it to the plaintiff. This was in April, 1938, on a policy insuring other property of the plaintiff.

In establishing agency, a previous course of dealing, sanctioned or ratified by the principal, is competent, as having a tendency to prove agency in the given case, although the jury must determine its weight for such purpose. 2 C. J. 947.

In the case of Benatti v. John Hancock Mut. Life Ins. Co., 290 Ill. App. 438, the court said: “From the evidence it is apparent that payments were received by the defendant after the due date but within the grace period, with the exception of when the payment was made on August 29, 1934, which the plaintiff contends was 29 days after the due date. When this payment was made plaintiff’s wife called the collecting agent’s attention to the fact that the payment was late, and the agent assured the wife of the plaintiff that the matter of a day or two tardiness in payment would not make any difference. Of course, the rule is that an agent of an insurance company is not empowered to change the provisions of the contract. This must be conceded, but a company operating through agents can be bound by the acts of its agents in waiving provisions providing for payment of premium. In support of this rule no citation of authorities of courts of last resort is necessary.”

Our Supreme Court in the case of Baxter v. Metropolitan Life Ins. Co., 318 Ill. 369, said:

“Waiver by an insurer results when, by an act, statement or course of conduct toward the assured, it recognizes the policy as existing though the time for payment of the premium has expired; and if the conduct of the insurer is such as to induce the assured to believe that a forfeiture will not be insisted upon, the insurer will be held to be estopped from taking advantage of such forfeiture.
“Forfeiture of life insurance policies is not favored, and unless the circumstances show a clear intention to claim a forfeiture for non-payment of the premium, forfeiture will not be enforced. ’ ’

It appears from the evidence that on August 3,1938, the defendant mailed the plaintiff a postcard from Chicago, stating that the company would be prepared to offer the insured a new policy contract, when he renewed his fire policy number 30700, due August 13, 1938, and suggested a change in rates. It also advised the insured that an agent of the company would call upon him to renew the policy so that “there would be no break in the continuity of his insurance.”

The record discloses that no agent called in the interval from the receipt of this card until the date of the fire. There is nothing* in the record to show that plaintiff was guilty of fraud or deception, and the circumstances of the agent promising to see that the policy was renewed, together with the statement by the company that an agent would be sent in time to take care of his renewal, are significant factors. The plaintiff directed the agent to go to his wife to get the check for the premium. The agent, upon visiting the wife, stated he came to take care of the insurance and make a change in the property that was to be covered, instead of saying* he came for the premium payment, and told her not to call her husband as he would come back later, there being ample time. These circumstances were sufficient to warrant the trial judge in submitting the case to the jury.

“Waiver of, or estoppel to assert noncompliance with, a requirement that the premium be prepaid may arise from acts or omissions of insurer or its agents. If insured is prevented by insurer from performing such a condition insurer cannot assert such a failure.” 26 C. J. 67.

“ ‘In fact, the delivery of the policy without exacting the payment raised the presumption that a credit is intended, and is a waiver of the condition of prepayment. The waiver may also be inferred from any circumstances fairly showing that the insurers did not intend to insist upon the prepayment of the premium as a condition precedent. ’ ” Germania Fire Ins. Co. v. Muller, 110 Ill. App. 190, 194.

Where a life insurance policy provides for a forfeiture for the nonpayment of the annual premium on or before a specified time, such provision is for the benefit of the insurance company, and the company has a right to waive the forfeiture and dispense with a prompt payment of the premium at the time when it is due. Unless the circumstances show a clear intention to declare a forfeiture, it will not be enforced. Where the practice of the company, and its course of dealing with the insured, and others known to the insured, has been such as to induce a belief that so much of the contract as provides for a forfeiture in a certain event will not be insisted upon, the company will not be allowed to set up such forfeiture as against one in whom their conduct has induced such belief. An insurance company has the option to waive a condition or stipulation made in its own favor. Forfeitures are not favored in the law, and courts readily seize hold of any circumstances that indicate an intent to waive a forfeiture.

“ ‘Any agreement, declaration or course of action, on the part of an insurance company, which leads a party insured honestly to believe that, by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will and ought to estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract. The company is thereby estopped from enforcing the forfeiture. ’ Railway Passenger & Freight Conductors’ Mut. Aid & Ben. Ass’n v. Tucker, 157 Ill. 194, 200.

The allowance of a directed verdict for the defendant preserved for review only a question of law, whether from the evidence in favor of the plaintiff, standing alone, and when considered to be true together with the inferences which may legitimately be drawn therefrom, the jury might reasonably have found for the plaintiff. (Ziraldo v. W. J. Lynch Co., 365 Ill. 197; Brophy v. Illinois Steel Co., 242 Ill. 55; City of Chicago v. Jarvis, 226 Ill. 614.)

In the case of the Continental Casualty Co. v. Johnson, 119 Ill. App. 93, 98, the insurer had offered to pay the premium to the agent, but he refused to accept it, and stated he would get it later. Before the premium was paid the policy expired, and the insured was killed. The court said:

“Appellant’s position apparently is that although it gave the agent power to solicit insurance, deliver policies, collect premiums and forward the same to the company, yet the insured is responsible for all mistakes made by the agent and in case the agent refuses the premium on the day it is due and postpones the time of payment for his own convenience, the insured or his beneficiaries must bear the loss if any occurs. The position taken by appellant is not sustained by the law.
“An agent clothed with the power of soliciting insurance, delivering policies and collecting premiums is the agent of the insurance company and not the agent of the insured. Such an agent is a general agent and as such has power to waive forfeitures and conditions in the policy notwithstanding the provision therein that no agent has such power.”

For the reasons herein stated, judgment of the circuit court of Vermilion county is hereby reversed and cause remanded for a new trial.

Reversed and remanded.


author: Mr. Justice Hates

text:
    People ex rel. Edward J. Barrett, v. Liberty State Bank. Charles H. Albers, Successor Receiver, Appellee, v. Tau Kappa Epsilon Fraternity, Appellant.
    Gen. No. 9,215.

      Heard in this court at the October term, 1939.
    Opinion filed March 7, 1940.
    Rehearing denied April 3, 1940.
    Martin, Hoose & DePew, of Bloomington, for appellant.
    Carter Pietsch, of Bloomington, for appellee.
   Mr. Justice Hates

delivered the opinion of the court.

This is an appeal from the circuit court of McLean county, Illinois, by the Tau Kappa Epsilon Fraternity, appellant, seeking to reverse the decree entered in that court, which held that a payment of $3,5.89.34, made on May 24, 1933, by the Liberty State Bank of Blooming-ton, Illinois, after it was closed by the moratorium and before the appointment of a receiver, constituted unlawful preference.

It appears from the evidence in the case that at the time of the closing of the bank in March, 1933, by the State Bank moratorium, the Tau Kappa Epsilon Fraternity was the owner of five certificates of deposit totaling $3,589.34; that said certificates were canceled on May 24, 1933, during the suspension of business by said bank; that the cash at the bank was reduced by that amount, and that the appellant received the said amount.

Appellant contends that the deposits, included in the certificates in question, amounted, to a deposit for a specific purpose; that the bank received said funds with the express understanding that it was to reinvest it in other bonds; that it was not lawfully entitled to use them as part of its general assets; that the title did not pass nor was there a relationship created between the bank and appellant of debtor and creditor, but was one of a constructive trust, and that the cashing of the certificates by appellant while the bank was closed did not amount to a preference and was not unlawful.

Appellee’s position is that the cashing of the certificates of deposit amounted to a preference which was unlawful; that the hank made no agreement for a special deposit; and that the deposits were not impressed with a trust.

E. E. Shearer, who was national treasurer of the Tau Kappa Epsilon Fraternity, was also, at the time of these transactions, cashier of the Liberty State Bank. At different times beginning with October 25, 1930, and up to December 20, 1932, he deposited in the bank certain funds belonging to the fraternity. These funds were derived from interest and sale of securities belonging to the fraternity. The bank issued certificates of deposit representing the various amounts deposited.

The vital question in the case is whether or not there was an agreement between appellant and the bank, covering these deposits, which would earmark them and restrict their use to the specific purpose of reinvesting in other bonds.

In determining this question, it is necessary to consider carefully the facts and circumstances surrounding the transactions at the time of their occurrence. The cashier and president of the bank testified at the trial. In their testimony there is an apparent effort to reconstruct these transactions so as to create a trust. It further appears that the hank never reopened,-— as it was hopelessly insolvent; that the cashier was not connected with the hank at the time of the trial, — but in another occupation, and that the real parties in interest were the bank depositors, — not the former officers of the closed bank. The cashier testified: “The sale of the Commonwealth Edison Bonds was made at the suggestion of an investment counsellor in Chicago, who handled the account of the bank. I had listed with him also, the bonds of the fraternity, and a list of the bonds of one or two other customers of the bank. He did not know, however, that they were of separate ownership. During the month of December, as I recall, the market was very erratic, and these particular ones were recommended for sale by this investment counsellor. He recommended the sale of these by telephone, and as I recall, he set up the reasoning that the Insull Securities, even their operating properties, would undoubtedly suffer a serious deflation in the next few months, and I think probably over the telephone in that conversation, I listed these bonds for sale, with the thought then in mind that the bank would hold the funds for the specific purpose of reinvestment, either in that same issue after some deflation had shrunken out of them or in such other bonds as might be recommended by him. It was rather thought and it was the conversation that the deflation might be temporary and that a person could go in and pick the bonds back up at a much lower figure. During the same month, or at least during the same general time, a considerable portion of the bank’s bond portfolio was sold upon this same man’s recommendation.”

The circumstances of Shearer, the national treasurer and chief fiscal officer of appellant, acting in the dual capacity of cashier of the bank and agent of the appellant, makes it difficult to determine just what the legal effect of his acts were and from his own testimony it appears they were loose, indefinite and uncertain so as to prevent the basing of an agreement thereon, which would be injurious to the other depositors.

The president of the bank testified that at the time of one of the transactions, the cashier told him about these funds and suggested they be carried as a trust fund. The testimony of these two officers appeared to be an afterthought and not of that character that carries conviction and establishes an agreement that would create a trust which would entitle appellant to a preference over the other bank depositors.

Upon an examination of the certificates it appears that all five of them are in the usual form generally used by banks, and all are made payable to the order of appellant, in current funds, on the return of the certificates properly indorsed. Nothing appeared on them indicating they were to be reserved for any specific purpose nor were they designated as a trust fund in any way.

Appellant fared well in having* its national treasurer inside the bank in May, 1933, who withdrew the amount of its claim, which resulted in appellant being paid $3,589.34 in cash, ahead of all other creditors and prior to an adjudication fixing the rights of the creditors.

The general rule with respect to deposits is that they will be deemed general unless the contrary satisfactorily appears and that the relation of the depositor and the bank will be one of creditor and debtor and not of agent and principal or trustee and beneficiary. It is essential to the creation of a special deposit that the character of the deposit be established at the time the same is made and that it be given and accepted under an agreement that it is to be treated as a special deposit. There is nothing in this record to establish any understanding and agreement between the fra-, ternity and the bank with respect to the character of these deposits. The money represented by the certificates of deposit went into and was commingled with the general funds of the bank. There was no segregation of the money when it was deposited nor at any other time subsequent thereto. True it was that the general funds of the bank were augmented by the deposits but this in itself does not impress them with the character of a trust.

The decree of the circuit court provided that no payment be made upon the claim of the appellant until the disbursement to the other common creditors shall have reached sufficient proportions so as to make their percentage equal to the preference already made to appellant, and thereafter appellant was to prorate with the other general creditors.

We are of the opinion that the decree of the circuit court is supported by the facts in this record and in keeping with sound public policy and fair dealing in administering the law between the several depositors of a closed bank. The decree of the circuit court is therefore affirmed.

Decree -affirmed.


text:
    An Association of Franciscan Sisters of the Sacred Heart, Trading as St. Elizabeth Hospital, et al., Appellees, v. County of Vermilion, Appellant. .
    Gen. No. 9,225.

      Heard in this court at the January term, 1940.
    Opinion filed March 11, 1940.
    Oliver D. Mann, State’s Attorney, and Thomas C. Stifler, Assistant State’s Attorney, for appellant.
    Acton, Acton & Baldwin, of Danville, for certain appellees; W. M. Acton, of counsel.
    Bookwalter, Carter & Gunn, of Danville, for certain other appellee; Horace E. Gunn, of counsel.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

The plaintiffs appellees, consisting of two nonprofit sharing hospital corporations and six practicing physicians of the city of Danville, Illinois, joined in a suit in the circuit court of Vermilion county against the town of Danville and the county of Vermilion seeking recovery of various amounts alleged to be due and payable to the respective plaintiffs under the provisions of par. 15.1, sec. 15, par. 25, sec. 24, ch. 107, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 98.15, 98.27], for the reasonable expense of hoard, nursing and medical services furnished to certain named persons not having money or property to pay therefor who fell sick within said town and county, but did not come within the definition of a pauper, which care and service was so rendered at the direction of the overseer of the poor of the town of Danville, and for which amounts judgments were prayed in the alternative against said respective defendants.

Motions in the" nature of a demurrer were severally interposed by the defendants disclaiming liability under the provisions of said statutes. The motion was allowed and the suit dismissed as to the town of Dan-ville, but was denied as to the county of Vermilion, which then stood by its motion, and on evidence heard, judgment was entered against the county of Vermilion and in favor of the respective plaintiffs for the amounts of their several claims, aggregating $1,732.40, and 10 in number, from which judgments the said defendant has appealed. Plaintiffs have also perfected an appeal from the court’s action in dismissing the suit as to the defendant Town of Danville, thus bringing the entire record before this court for review. It was stipulated by the parties that the facts recited in the complaint were true.

It is the sole contention of the defendant county that paragraph 25', section 24, supra, as amended, under the provisions of which the judgment.was rendered, doés not apply to said county and that under a proper application of the doctrine of “ejusdem generis,” the language thereof should be so construed as to exclude from liability all cities, villages, counties or towns having a population of less than 500,000 inhabitants.

The plaintiffs and codefendant town of Danville have filed a joint reply brief wherein they contend that under the facts as stipulated and proven and the plain language and provisions of said section, the county of Vermilion is so liable and that said doctrine has no application herein.

In two recent opinions of courts of review of this State, the language of section 24 was under discussion. In Cloyd v. County of Vermilion, 360 Ill. 610,196 N. E. 802, it was contended by the appellant in its motion to dismiss the complaint and upon appeal that (1) the section relied on as a basis for the suit was unconstitutional in that its subject was not within the title of the act, (section 13 of article 4 of the State constitution), and (2) that on both of the claims for medical services rendered, whereon judgment was entered, the township and not the county was liable for the services so rendered by Dr. Cloyd?u who was the plaintiff in that case. Both contentions of the appellant were held to be without force.

At that time, section 24 of the Pauper Act (Smith’s Stat. 1933, ch. 107, ¶ 25, p. 2130; Cahill’s Ill. St. 1933, p. 2122), read as follows:

‘ ‘When any non-resident, or any person not coming within the definition of a pauper, of any county or town, shall fall sick or die, not having money or property to pay his board, nursing and medical aid or burial expenses, the overseer or overseers- of the poor of the town or precinct in which he may be shall give, or cause to be given to him such assistance as they may deem necessary and proper, or cause him to be conveyed to his home, and if he shall die, cause him to be decently buried; and the county shall pay the reasonable expense thereof, which expenses of board, nursing, medical aid and burial expenses, may be recovered from the relatives of the said pauper, or from the county of which he is a resident, in an appropriate action. ’ ’

Concerning* the appellant’s contention therein that section 15 of the above chapter as amended in 1931 (Laws of Illinois, 1931, p. 725, par. 15) created a liability against counties of less than 500,000 population when under township organization, to which class Vermilion county belongs, the above court says at p. 614, supra, that: “Appellant overlooks the fact that since the amendment of 1931, section 14, which deals with counties not under township organization, and section 15, covers only those persons who are technically paupers. On the other hand, section 24 deals explicitly with emergency cases arising among those persons not technically paupers but who are nevertheless unable to pay the necessary expense incident to their illness or death. As has been pointed out, the legislature has by express language designated such a person a pauper, and it has also definitely placed the burden of such cases upon the county. ’

Subsequent thereto, said section 24 was last amended by an act approved March 6, 1936 (Laws of Illinois, 1935-36, Second Special Session, pp. 73, 77, sec. 24), to read as follows:

“When any non-resident, or any person not coming within the definition of a pauper, of any city, village or incorporated town having a population of more than 500,000 inhabitants, county or town, shall fall sick or die, not having money or property to pay his board, nursing and medical aid or burial expenses, the overseer or overseers of the poor of the city, village or incorporated town, town or precinct in which he may be shall give, or cause to be given to him such assistance as they may deem necessary and proper, or cause him to be conveyed to his home, and if he shall die, cause him to be decently buried; and the county shall pay the reasonable expense thereof, which expenses of board, nursing, medical aid and burial expenses, may be recovered from the relatives of the said pauper, or from the county of which he is a resident, in an appropriate action.”

This section, as so amended, together with the above section 15 concerning the liability of towns for the support of poor and indigent persons, was construed in the recent case of Buckmaster v. County of Effingham, 302 Ill. App. 353.

In that case, it was held by the Appellate Court of the Fourth District that under said section 24 of the Pauper Act, as so amended, the county was liable to pay for emergency medical services furnished to persons who were not technically paupers but who were nevertheless unable to pay the necessary expenses of their illness and that the county could not disclaim such liability on the ground that the township was liable for such expenses under the provisions of section 15 of said act. In that case, a group of physicians had filed suit under the provisions of said sections 15 and 24 against the county of Effingham and the town of Mason to recover the value of medical and surgical services rendered to various persons (not defined as paupers), who were residents of the town and county and who were not financially able to pay for such services.

The trial court held that the town and not the county was liable therefor, and upon appeal, it was held e contra that the county and not the town was liable under the above provisions, and the cause was reversed and remanded -with directions to proceed in -accordance with the views set forth in the court’s opinion.

Counsel therein sought to distinguish the application of said sections 15 and 24 in that case from the rule announced in the Cloyd v. County of Vermilion case, supra, but the court held against the construction of section 24 contended for by counsel and therein used the following language (p. 358): “The function of the courts is to construe and not to enact legislation. Nor can we sanction atrophy or nullification of legislative enactments under the guise of judicial interpretation in violation of express language of legislative enactments. Section 24 clearly establishes an obligation upon the county to pay for the medical and surgical expenses of those persons who are not technically paupers, but who are nevertheless unable to pay the necessary expenses of their illness. In the instant case it was expressly alleged in the complaint that the father was able to provide the necessities of life for his family and children in health. Under the express provision of section 24, as consistently interpreted in the case of Cloyd v. County of Vermilion, supra, the burden of such expenses is imposed on the county.”

In the instant case, the appellant further contends that the inclusion in said amended section 24 of the added clause “city, village or incorporated town having a population of more than 500,000 inhabitants” before the words “county or town,” which thereby changes the opening lines of said section 24 to read as follows: “When any non-resident, or any person not coming within the definition of a pauper, of any city, village or incorporated town having a population of more than 500,000 inhabitants, shall fall sick or die,” etc., restricts all liability under the doctrine of “ejusdem generis” to cities, counties and towns having a population of more than 500,000 inhabitants.

With this contention we cannot agree. It does violence to the intent and provisions of the entire act, when the language thereof is construed together, and to its intent, purpose and meaning as heretofore construed by our courts of review. We do not deem the case of Bullman v. City of Chicago, 367 Ill. 217, 10 N. E. (2d) 961, and other cases cited by the appellant to be applicable to the language of section 24, as amended, nor as an aid in construing the clear and well-settled intent and meaning thereof. The doctrine of ‘1 ejusdem generis” never applies where it would do violence to the manifest intent of the legislative act.

Qualifying words are made applicable to those preceding and not extended to the following words, unless such extension or inclusion is clearly required by the intent and meaning of the context or disclosed by an examination of the entire act. This rule of construction accords with the well-recognized doctrine of the “last antecedent clause” and finds clear application herein rather than a forced construction which would nullify the meaning and intent of the act as heretofore construed by the courts and as set forth in the language thereof. Stevens v. Illinois Cent. R. Co., 306 Ill. 370, 137 N. E. 859; Tribune Co. v. Thompson, 342 Ill. 503, 526, 174 N. E. 561. It is the proper function and duty of courts to construe and not to enact legislation nor to nullify valid legislative enactments.

In dismissing the suit against the town of Danville and in entering judgment against the County of Vermilion, the action of the trial court was in accord with the provisions of the statute. The proofs and stipulations of the parties as to the facts brought the plaintiff’s cause of action against the county within the express terms and provisions of the above act.

Finding no reversible error in the record, the judgment of the circuit court of Vermilion county will be affirmed.

Judgment affirmed.


author: Justice Hubtman.

text:
    Joseph Pollack, Appellant, v. County of DuPage et al., Appellees.
    Gen. No. 9,461.
    Heard in this court at October term, 1939;
    opinion filed January 25, 1940;
    rehearing denied March 19, 1940.
    Leonard C. Mead and Eva R. Pollack, for appellant;
    Russell W. Keeney, State’s Attorney, for appellees;
    Joel Baker, William E. Hooper and Lee E. Daniels, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice Hubtman.

“Not to be published in full.”


author: Justice Huffman.

text:
    Leon E. Sutherland et al., Appellants, v. H. D. Morgan et al., Appellees.
    Gen. No. 9,496.
    Heard in this court at October term, 1939;
    opinion filed January 25, 1940;
    rehearing denied March 19, 1940.
    George W. Hunt, for appellant;
    Leon E. Sutherland, pro se;

    S. E. McGrath and Arthur B. Copeland, for appellees.
   Opinion by

Justice Huffman.

“Not to be published in full.’’


text:
    People of the State of Illinois, Defendant in Error, v. Albert Sullivan, Plaintiff in Error.
    Gen. No. 9,505.
    Heard in this court at October term, 1939;
    opinion filed January 25, 1940
    rehearing denied March 19, 1940.
    Thomas J. Welch and Vera M. Binks, for plaintiff in error;
    Martin E. O’Connor, State’s Attorney, for defendant in error.
   Opinion by

Justice Huffman.

“Not to be published in .full.’’


author: Justtcb John J. Sullivan.

text:
    Master Barbers Association of Chicago, et al., Appellees, v. Joseph Baiata et al. Appeal of Tony Borino et al., Appellants.
    Gen. No. 38,704.
    Heard in second division, first district, at February term, 1936;
    opinion filed February 23, 1940.
    Harvey Young, for appellants;
    Bailey Samelow Stanton, for appellees.
   Opinion by Presiding

Justtcb John J. Sullivan.

“Not to be published in full.”


author: Justice John J. Sullivan.

text:
    George E. Moring, Appellee, v. The Peelle Company, Appellant.
    Gen. No. 39,307.

      Heard in second division, first district, at June term, 1937;
    opinion filed February 23, 1940.
    Sims & Stransky, for appellant;
    James P. Carey, Jr., and David F. Hatchett, Jr., of counsel; Miller, Gorham, Wales & Adams, for appellee;
    Herbert C. DeYoung and Charles F. White, of counsel.
   Opinion by Presiding

Justice John J. Sullivan.

“Not to be published in full.’’


text:
    Avery Brundage, Appellant, v. E. C. Proctor and Harvey Farrington. Harvey Farrington, Appellee.
    Gen. No. 40,817.
    Heard in second division, first district, at October term, 1939;
    opinion filed February 23, 1940.
    McNab, Holmes & Long, for appellant;
    Wallace B. Kemp, of counsel;
    Wm. E. McNamara, for appellee.
   Opinion by Presiding

Justice John J. Sullivan.

“Not

to be published in full.”


text:
    Jeffery Bulk Service Station, Inc., Appellee, v. George P. Goetzinger et al. Appeal of John Goetzinger, Appellant.
    Gen. No. 40,838.
    Heard in second division, first district, at October term, 1939;
    opinion filed February 23, 1940.
    Schnaekenberg, Hansen & Towle, for appellant;
    Elmer J. Schnaekenberg, of counsel;
    Frederick A. Smith, for appellee.
   Opinion by Presiding

Justice John J. Sullivan.

“Not to be published in full.’’


text:
    People of the State of Illinois ex rel. Oscar Nelson, Complainant Below, v. Union Bank of Chicago, Defendant Below. Mae L. Riordan, Appellant, v. Harry R. Spellbrink, Successor Receiver, Appellee.
    Gen. No. 40,891.

      Heard in second division, first district, at October term, 1939;
    opinion filed February 23, 1940.
    Kennedy, Grider & Mober-ley, for appellant;
    Schuyler & Hennessy, for appellee;
    Theodore E. Zahler and C. Ernest Heaton, of counsel.
   Opinion by Presiding

Justice John J. Sullivan.

“Not to be published in full.”


text:
    Elizabeth Johnson, Appellee, v. India Tea Company, Appellant.
    Gen. No. 40,935.
    Heard in second division, first district, at October term, 1939;
    opinion filed February 23, 1940.
    W. Harold Rutherford, for appellant;
    Richard E. Keogh, of counsel;
    Rosen, Francis & Cleveland, for appellee;
    James B. O ’Shaughnessy, of counsel.
   Opinion by Presiding

Justice John J. Sullivan.

“Not to be published in full.”


text:
    People of the State of Illinois, Defendant in Error, v. Marion Wilson, Plaintiff in Error.
    Gen. No. 40,987.

      Heard in second division, first district, at October term, 1939;
    opinion filed February 23, 1940
    rehearing denied April 1, 1940.
    George B. Holmes, for plaintiff in error;
    Thomas J. Courtney, State’s Attorney, for defendant in error;
    Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Blair L. Varnes, Assistant State’s Attorneys, of counsel.
   Opinion by Presiding

Justice John J. Sullivan.

“Not to be published in. full.’’


author: Justice Friend.

text:
    Francis M. Allen, Appellant, v. Sidney H. Kahn et al., Appellees.
    Gen. No. 40,686.
    Heard in second division, first district, at February term, 1939;
    opinion filed February 23, 1940
    rehearing denied April 1, 1940.
    Shulman, Shulman & Abrams, for appellant;
    Meyer Abrams, of counsel;
    Gottlieb & Schwartz, Sonnensehein, Berkson, Laut-mann, Levinson & Morse, for appellees;
    Claude A. Eoth, Harry E. Smoot and J. F. Bishop, of counsel.
   Opinion by

Justice Friend.

“Not to be

published in full.”


text:
    Marie Rodak, Appelant, v. Harry B. Cohen and Edith Cohen, Appellees.
    Gen. No. 40,767.
    Heard in second division, first district, at June term, 1939;
    opinion filed February 23, 1940.
    L. A. Sherwin, for appellant;
    Wm. A. Sherwin, of counsel;
    Harris F. Williams and Robert C. Baumgartner, for appellees.
   Opinion by

Justice Friend.

“Not to be published in full.”


text:
    Howard J. Curtin, Appellee, v. Paul Kinney, Appellant.
    Gen. No. 40,888.
    Heard in second division, first district, at October term, 1939;
    opinion filed February 23, 1940.
    Hubbard, Baker & Rice, for appellant;
    no appearance for appellee.
   Opinion by

Justice Friend.

“Not to be published, in full.”


text:
    Anna Stolberg, Appellant, v. Paul H. Stolberg, Appellee.
    Gen. No. 40,932.
    Heard in second division, first district, at October term, 1939;
    opinion filed February 23, 1940.
    Clarence W. Shaver, for appellant;
    Sonnensehein & Mitchell, for appellee;
    Harry L. Mitchell, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.”


text:
    People of the State of Illinois, Appellee, v. Arthur L. Whitmer, Appellant.
    Gen. No. 41,074.
    Heard in second division, first district, at December term, 1939;
    opinion filed February 23, 1940.
    Harold L. Levy, for appellant;
    Wm. Scott Stewart, of counsel;
    Thomas J. Courtney, State’s Attorney, for appellee;
    Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, Blair L. Varnes and Leslie V. Curtis, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice Friend.

“Not to be published in full.”


author: Justice Scanlan.

text:
    A. Anderson et al., Appellees and Cross Appellants, v. Sanitary District of Chicago, Appellant and Cross Appellee.
    Gen. No. 40,293.
    Heard in second division, first district, at October term, 1938;
    opinion filed February 23, 1940.
    Ernest Buehler, Lawrence J. Fenlon and William C. Oehlsen, for appellant;
    John F. Collins and Edward H. S. Martin, for appellees.
   Opinion by

Justice Scanlan.

“Not to be published in full.”


text:
    Glenn H. Gaddis, Appellant, v. Thomas D. Nash, Appellee.
    Gen. No. 40,416.
    Heard in second division, first district, at October term, 1938;
    opinion filed February 23, 1940.
    J. B. Luse, for appellant;
    Nash, Ahern, McDermott, McNally, & Kiley, for appellee.
   Opinion by

Justice Scanlan.

“Not to be published in full.’’


text:
    Gertrude Webb, Administratrix of Estate of William D. Webb, Deceased, Appellant, v. The Willett Company and John Krett, Defendants. The Wil-lett Company, Appellee.
    Gen. No. 40,972.
    Heard in second division, first district, at October term, 1939;
    opinion filed February 23, 1940.
    Krohn & MacDonald and Sidney Rothblatt, for appellant;
    Stuart B. Krohn and Ian P. MacDonald, of counsel;
    Burt A. Crowe, for appellee.
   Opinion by

Justice Scanlan.

“Not to be

published in full.’’


author: Mr. Justice Hebel

text:
    Katherine Schmidt, Appellant, v. Equitable Life Assurance Society of the United States, Appellee.
    Gen. No. 40,361.
    Heard in the third division of this court for the first district at the October term, 1938.
    Original opinion filed December 13, 1939.
    Rehearing opinion filed April 10, 1940.
    Nelson, Slater & Boodell, of Chicago, for appellant; Drennan J. Slater and Martin Crane, of Chicago, of counsel.

      Mayer, Meyer, Austrian & Platt, of Chicago, for appellee; Miles Gf. Seeley, Donald M. Graham and Frederic Burnham all of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an action in assumpsit wherein the plaintiff, as the beneficiary of two policies of life insurance issued by the defendant upon the life of Edward C. Schmidt, seeks to recover the face amount of such policies. A trial was had before the court without a jury, and after hearing the evidence, the court made a finding for the defendant and entered judgment thereon. It is from this judgment that the plaintiff appeals.

The plaintiff’s action is as stated in her second amended declaration which originally consisted of two counts, identical except that each was based upon a different policy. The policies were identical except as to number. Defendant’s demurrer to the first and second counts of the declaration was originally sustained by the trial court. The plaintiff elected to stand on said counts, and judgment was entered for the defendant. The plaintiff then appealed to this court and judgment for defendant was reversed and the cause remanded. (282 Ill. App. 439.) After the case was redocketed in the trial court, the plaintiff filed third and fourth counts to her second amended declaration identical except that each was based upon a different policy. Defendant filed a plea of the general issue and ah affidavit of merits. Thereafter the plaintiff moved to strike the defendant’s affidavit of merits for insufficiency and to enter a finding and judgment for the plaintiff on her declaration. The motion to strike was sustained, and, the defendant electing to stand by its affidavit of merits, the court entered judgment against the defendant for the sum of $10,242 and costs of suit.

Thereupon the defendant appealed to this court and this court handed down an opinion in Gen. No. 38,905 (290 Ill. App. 378) to the effect that the trial court was in error in striking the affidavit of merits and therefore reversed the judgment and remanded the cause to the trial court with directions that a hearing be had on the issues joined.

As above stated, when this case was in the trial court on the last occasion, the third, judgment was entered for the defendant and this appeal follows.

The plaintiff suggests that her first and second counts are based on the theory that the policy sued upon did not become effective until October 16, 1925, although each annual premium was made to fall on August 13th; that each premium paid by the insured, although due August 13th, carried the policy from the following October 16th to the same date in the next year and that, although insured died September 16, 1932, without having paid the annual premiums due August 13, 1932, the premiums paid on August 13, 1931, kept the policies in force until the following October. Plaintiff further suggests that this court on the first appeal has held adversely to the theory of the plaintiff’s and is, therefore, not burdening the court with further argument and citation of authority on the theory contained in the first two counts of the declaration.

Plaintiff’s theory in counts three and four is that the policies in terms provided that “after three full years’ premiums have been paid hereon upon any subsequent default in the payment of any premium and within three months after such default, this policy may be surrendered by insured who may elect one of” three options. The three options provided by the policies are that the insured might elect within said three-month period after default to (a) receive the cash surrender values of the policies in cash; or (b) receive paid-up policies in such amounts as the cash surrender values would purchase; or (c) receive extended insurance for the full amount of the policies for such period of time as their cash surrender values would purchase.

It is further stated by the plaintiff that the policies further provided that if the insured “does not select one of said options within three months of such default, the insurance shall be continued as provided in option c”; that if there should be any indebtedness against the policy the cash surrender value should be reduced thereby, the paid-up insurance should be reduced proportionately and the extended term insurance should be for the face of the policy less the indebtedness and for such period as the reduced cash value would purchase. It is further contended by the plaintiff that the policies were still in effect at insured’s death by reason of the options contained in the nonforfeiture clause and were “surrendered” by her within the three-month period; that these option rights continued in existence for three months after lapse; that along with the option rights of necessity the policies were in existence for this three-month period.

The defendant’s answer to this theory of the plaintiff is that on the third and fourth counts of the declaration the insured did not in fact have the three-month period to elect one of the options because the equities in the policies were not sufficient to carry them along during the three-month period even as late as the date of death, because there were loans against the policies which, by the terms of the policies, could be deducted from the cash value. Defendant in its affidavit of merits alleges two different dates of lapse; one on August 13, 1932, and the other on August 18, 1932. The defendant admits that the insured was entitled to a 31-day period of grace, but that the period of grace ended September 13, 1932.

The plaintiff’s contention is that the policies expressly gave the insured the right within three months after default to surrender the policies and elect one of three nonforfeiture options. During this three-month period the insured died, but the policies were still fully in effect regardless of outstanding loans.

The principal allegations of count three and four of the plaintiff’s second amended declaration are that on October 20, 1925, the defendant company wrote the insurance policies in question and delivered the same to Edward C. Schmidt and agreed with him that in the event of his death the company would pay the plaintiff, the insured’s widow and beneficiary, $5,271.60 upon the terms and conditions of the policy, and would pay double indemnity in case of accidental death.

The plaintiff further alleges that after the delivery of the policies and after three full years’ payment of premiums had been made on each, on September 16, 1932, while the policies were still in full force and effect Edward G. Schmidt died without having exercised any of the nonforfeiture options. As stated, these options were to the effect that where the insured had paid three premiums, he could elect, within three months after default to (a) receive the cash surrender values of the policies in cash; or (b) receive paid-up policies in such amounts as the cash surrender values would purchase; or (c) receive extended insurance for the full amount of the policies for such period of time as the cash surrender values would purchase and that if the insured failed to elect among such options at the end of the three-month period the company would apply any equity in the policies to extended term insur-anee under option “c.”

Counts three and four further allege that the plaintiff gave due notice of her husband’s death to the company and made demand for payment, but that payment was refused. These counts allege payment of all premiums from 1925 to 1931 inclusive. The plaintiff asks for the face amount of each policy, less loans, to wit, $4,366.36 on each policy, and, in addition thereto, interest from the date of demand for payment.

To these counts of the declaration the defendant filed the general issue and affidavit of merits, and so far as the affidavit of merits relates to the allegations of counts three and four, the defendant stated in paragraphs 13 to 16 as follows:

“13. By reason of the terms and conditions of the policies of insurance sued upon and by réason of the matters and things hereinbefore alleged the said policies and each of them lapsed on August 13, 1932 and were of no further force or value except that thereafter a grace period was provided by said policies of thirty-one days within which the said premiums might have been paid and also except that by reason of the failure of said Edward C. Schmidt or anyone else to pay said premiums to defendant on or before the end of said grace period, there became applicable to said policies by reason of their terms a provision that they would continue at their face amount as paid-up extended term insurance for such further period, after August 13, 1932, as was shown in a table set forth in said policy, to-wit, seven years and two months, provided that if there were any indebtedness against said policies the extended term insurance should be for the face amount of the policy less the indebtedness and for such period as the reduced cash value would purchase.
“14. On August 13, 1932, there was an indebtedness against each of the said policies amounting with interest to said date of $905.24, and the cash value of each of said policies reduced by the amount of said indebtedness and interest amounted to $1.48 per policy.
“15. The amount of extended term insurance which $1.48 would purchase under one of the policies sued upon was four and one-quarter days.
“16. The said policies, and each of them, lapsed in all respects and became for all purposes null and void, and of no further force and effect, before the death of said Edward C. Schmidt, as of August 18,1932. ’ ’

This court stated when this case was before it on the first review (Schmidt v. Equitable Life Assur. Society, 282 Ill. App. 439):

“It is not disputed that the insured paid more than three full years’ premiums. It necessarily follows that the policies by the terms thereof, were still in force after nonpayment. Before the expiration of the time to exercise the option, the insured died. Action on the policies survived, and as a result the plaintiff is in a position as beneficiary to recover the amount due from the defendant, as provided for by the policies themselves. The contract provides for this, and the defendant is bound under the very terms of its contract. • Otherwise, if the contract of insurance was at an end, all rights provided for in the contract would also terminate. To permit a forfeiture, however, under the circumstances, would be doing violence to the understanding of the parties in the instant case.” In the consideration of the questions involved in this litigation — the policy provides by its terms that: “Failure to repay such loan or to pay interest thereon shall not avoid this policy unless the total indebtedness hereon shall equal the total loan value, nor until thirty-one days after notice shall have been mailed to the insured, and to the assignee of record, if any, to their addresses last known to the Society.” and from the policy it appears that this language is used:
“After three full years’ premiums have been paid hereon, upon any subsequent default in the payment of any premium or instalment thereof, and within three months after such default, this policy may be surrendered by the insured (or assignee if any) who may elect one of the options.” And bearing upon the question of indebtedness this policy provides:
“If there be any indebtedness against this policy, the cash surrender value shall be reduced thereby, the paid-up insurance shall be reduced proportionately, and the extended term insurance shall be for the face amount of the policy less the indebtedness and for such period as the reduced cash value will purchase.” Then the policy further provides:
“In the event of default in the payment of any premium or instalment thereof after this policy has been in force three full years, if the Insured (or assignee if any) does not select one of said options within three months of such default, the insurance shall be continued as provided under Option (c).” which provides:
“(c) To continue the insurance for its face amount as paid-up extended term insurance for the period shown on the Table incorporated in the policy, or for such further period, as the dividend additions (if any) will purchase.” So, when we come to consider the questions involved, we find that the insured died before he selected any of the options that were provided for in the'policy, and by reason of these provisions the policy was in force at the time of the insured’s death, and that the extended term of insurance, which is contended for by the plaintiff, did not come into effect until three months after the lapse of the policy.

The death of the insured did not deprive the plaintiff, as beneficiary, of the benefit of the options, because the right to elect among such options is not personal to the insured and the beneficiary may exercise the right of election after the death of the insured and within the period specified in the policy contract. This is the contention of the plaintiff, who adopts the citation of authorities of the defendant wherein it is stated by the plaintiff that it has at no time been contended by the defendant that any rights that the insured had under the policies did not go to his widow, and plaintiff adopts the citations that are contained in its, defendant’s, brief on the second appeal in support of this proposition, namely: Wheeler v. Connecticut Mut. Life Ins. Co., 82 N. Y. 543, 37 Am. Rep. 594; State Mut. Life Ins. Co. v. Forrest, 19 Ga. App. 296, 91 S. E. 428; New York Life Ins. Co. v. Noble, 34 Okla. 103, 124 Pac. 612; Neilsen v. Provident Sav. Life Assur. Society of New York, 139 Cal. 332, 73 Pac. 168.

In considering these questions this court in the opinion on the first appeal, 282 Ill. App. 439, said: “ . . . the rule is well established without the necessity of citation of authorities, that courts are inclined to construe a contract of insurance' so that it will not impair the indemnity of the insured, and adopt one which is favorable to the insured in order that the beneficiary, as in the instant case, may recover. These policies were prepared by the company itself, and the language is its langauge, not the insured’s.”

And the plaintiff suggests that even as the policies are written, the company had power to cut short insured’s coverage in less than three months by serving notice as provided in the policy under the provision relating to loans, which provides: “Failure to repay such loan or to pay interest thereon shall not avoid this policy unless the total indebtedness hereon shall equal the total loan value, nor until thirty-one days after notice shall have been mailed to the Insured, and to the assignee of record, if any, to their addresses last known to the Society.” Thus it is further contended by the plaintiff that on August 13, 1932, all defendant needed to do was to send notice to the insured of its intention to cancel the policies for nonpayment of principal and interest and a forfeiture of the policies would have been effective as of September 13, 1932, or four days before insured’s death. However, there is no claim made by the defendant that any such notice was sent out, and the company cannot profit by its own failure to take advantage of the means provided in its policies for forfeiture.

We rather agree with this statement of the plaintiff, but not with the view of the defendant that the existence of the indebtedness took away the insured’s option rights. Such is not provided for by the policy.

The plaintiff has called to our attention the case entitled Equitable Life Assurance Society of the United States v. Golson, 159 Ala. 508, 48 So. 1034, from which it appears that the life insurance policy provided that on default in.the payment of any annual premium after the third, the policy might be surrendered for a nonparticipating paid-up policy, provided the policy was surrendered to the insurer within six months after the date of default, otherwise the policy to cease. The court held the policy did not provide for a forfeiture of the policy inside of six months after default and that after default insured had six months within which to surrender the policy and get paid-up insurance or to pay the premium should he decide not to surrender the policy. It was further held in that case that on insured’s failure to so elect, the policy did not become forfeited for six months after the default, which in a measure supports the theory of the plaintiff in the present action.

Other cases have been cited by both sides, but the conclusion of the court must necessarily depend upon the contract of insurance, and we are of the opinion, after considering its provisions, that the court erred in finding for the defendant and that the plaintiff was not entitled to recover, and we believe the judgment should be reversed and judgment entered for the face amount of each policy, less loans against the same, and plus interest at the rate of 5 per cent from the date of death.

For the reasons stated, the judgment is reversed and the cause remanded with directions.

Judgment reversed and cause remanded with directions.

Denis E. Sullivan, P. J., and Burke, J., concur.

On Rehearing.

The court filed its opinion in the above entitled cause, and subsequently the defendant filed a petition for a

rehearing, which was allowed, and to this petition for a rehearing the plaintiff filed an answer.

The defendant contends that the opinion of this court is contrary to that of the Supreme Court of Illinois in Coons v. Home Life Ins. Co. of N. Y., 368 Ill. 231, and in discussing this suggestion it will be necessary to consider the written provisions of the insurance policies that we regard applicable to the questions involved. In Coons v. Home Life Ins. Co. of N. Y., supra, the policy provides:

“Automatic extended insurance. On default in the payment of any premium hereon the insurance shall be continued, without action on the part of the insured, as paid-up non-participating term insurance as provided in option (b) aforesaid if the insured shall not within three months after such default surrender this policy . . . for its cash value, or paid-up insurance.” The provision which it is necessary to consider in the instant case — -the subject matter of this litigation —is
‘ ‘ In the event of default in the payment of any premium or instalment thereof after this policy has been in force three full years, if the Insured (or assignee if any) does not select one of said options within three months of such default, the insurance shall be continued as provided under Option (c).” which provides: “(C) To continue the insurance for its face amount as paid-up extended term insurance for the period shown on the table incorporated in the policy, or for such further period, as the dividend additions (if any) will purchase.”

It is clear from the provision in the Coons case which we have incorporated that there is no question but that the extended insurance “continued without action on the part of the assured.” In that case the assured could defeat this automatic provision by electing within three months to take the cash surrender value or paid-up p.olicy. However, in the ease at bar affirmative action is required by the assured to elect one of the three options and it is only after the expiration of the three-month period that option “c” automatically applies.

In the Goons case the contention of the plaintiff was that the policy was continued in effect as extended insurance after default in payment of premium. There the plaintiff relied principally on a dividend, which had been tentatively appropriated to the policy but which was not yet due, to carry the extended insurance past the date of death. She also suggested that the extended insurance did not begin to run until the expiration of a 30-day period of grace, within which the premium might be paid. In the instant case the contention of the plaintiff is that the policy continued in effect during the three-month period granted the assured in which to make an election. There could be no change in the status of the policy from the date of default in payment of premium until the assured made an election or the three-month period had expired. No election was made and by the time the three months had expired the policy had matured by reason of the death of the assured.

We believe the application of the thought that this court had regarding the three-month period granted the assured within which to make an election is in accord with the provision of the insurance policy, and having considered the questions that have been called to our attention by the defendants in their petition for a rehearing, we are of the opinion that there is nothing which would justify a reversal of our conclusion that the judgment entered for the defendant should be reversed and judgment entered for the plaintiff for the face amount of each policy, less loans against the same, and plus interest at the rate of 5 per cent from the date of death.

For the reasons stated, we will adhere to the opinion heretofore filed on the questions involved.

Judgment reversed and cause remanded with directions.

The motion of the defendant that this court grant a certificate of importance whereby the defendant may effect an appeal to the Supreme Court, upon due consideration is denied.

Denis E. Sullivan, P. J., and Burke, J., concur.