text:
    Irma Horwitz, appellee, v. Herbert Wolfson, appellant.
    Gen. No. 35,370.
    Opinion filed January 25, 1932.
    Greenfield & Reiff, for appellant; L. A. Sherwin, of counsel. Louis A. Heile, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    John Rosky, appellee, v. City of Chicago, appellant.
    Gen. No. 35,455.
    Opinion filed January 25, 1932.
    William H. Sexton, Corporation Counsel, and Alexander M. Smietanka, City Attorney, for appellant; Roy S. Gaskill, Assistant Corporation Counsel, of counsel. Finn & Miller, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Ethel Felick, appellee, v. Harvey L. Kay and Mary A. Kay, appellants.
    Gen. No. 35,503.
    Opinion filed January 25, 1932.
    Hovey & Ely, for appellants. Siegel & Levitón, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    Rudolph Lederer, appellee, v. Railway Terminal & Warehouse Company, appellant.
    Gen. No. 33,556.
    Opinion filed January 25, 1932.
    Tenney, Harding, Sherman & Rogers and Winston, Strawn & Shaw, for appellant; Roger Sherman, Henry. F. Tenney, John C. Slade, Richard H. Hollen and Thomas A. Reynolds, of counsel. Defrees, Buckingham, Jones & Hoffman, for appellee; Wilfred M. Doherty, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Richard G. Schmid and William Ryan, trading as Schmid and Ryan, appellees, v. Joseph D. O’Donnell, appellant.
    Gen. No. 35,461.
    Opinion filed January 25, 1932.
    .Robert F. Kolb and Joseph A. O’Donnell, for appellant. Arthur. A. Basse, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    In re Peter Voislowsky, deceased. Telfer MacArthur, appellant, v. Louis Engel, appellee.
    Gen. No. 35,540.
    Opinion filed January 25, 1932.
    Rehearing denied February 8, 1932.
    Wisner, Davis & Walsh, for appellant. Julius H. Miner, for appellee; Henry Perlman, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Young, Lorish & Richardson, appellee, v. Newell Mecartney, appellant.
    Gen. No. 35,564.
    Opinion filed January 25, 1932.
    Eugene M. Dareh, for appellant. No appearance for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    O. A. Christensen, appellee, v. Amelia Severin, appellant.
    Gen. No. 35,704.
    Opinion filed January 25, 1932.
    Theodore Johnson, for appellant. Litsinger, Healy & Reid, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Metropolitan Paving Company, appellee, v. Alex Schmidt, appellant.
    Gen. No. 35,340.
    Opinion filed January 25, 1932.
    L. A. Sherwin, for appellant. Norman C. Barry, for appellee. Mr. Justice M'atehett delivered the opinion of the court.


author: Mr. Justice Matehett

text:
    In re Estate of Harry V. Finkelstein, deceased. Sol H. Goldberg, appellant, v. Lenore Finkelstein, as executrix of the estate of Harry V. Finkelstein, deceased, appellee.
    Gen. No. 35,393.
    Opinion filed January 25, 1932.
    Rehearing denied February 8, 1932.
    Harry S. Cowen, for appellant; Edward H. Morris, of counsel. John J. Healy, for appellee.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Mandel Brothers, Inc., appellee, v. Walter Dreis, appellant.
    Gen. No. 35,439.
    Opinion filed January 25, 1932.
    Cline C. Brosius, for appellant; Charles W. Lamborn, of counsel. Altheimer & Mayer, for appellee.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Ernest A. Furkert, appellant, v. Industrial Gas Engineering Company, Inc., appellee.
    Gen. No. 35,449.
    Opinion filed January 25, 1932.
    Guy M. Blake, for appellant. Dyrenforth, Lee, Ohritton & Wiles, for appellee; George A. Ohritton, Bernard A. Schroeder and Charles J. Merriam, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Sidney Korshak, appellee, v. S. J. Rosenblatt and James Rosenblatt, appellants.
    Gen. No. 35,476.
    Opinion filed January 25, 1932.
    Rehearing denied February 8, 1932.
    Harold A. Fein, for appellants; Leo L. Stone, of counsel. Samuel A. Maremont, for appellee; Carl J. Appell, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    Roy R. Baker, appellee, v. John B. Ludwig, appellant.
    Gen. No. 35,506.

      Opinion filed January 25, 1932.
    Rehearing denied and additional opinion filed February 8, 1932.
    Otto 0. Rentner, for appellant; Richard J. Flannigan, of counsel. Tage Joranson, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Harold Epstein, appellee, v. John R. Geary, appellant.
    Gen. No. 35,583.
    Opinion filed January 25, 1932.
    Rehearing denied February 8, 1932.
    Hart, Frank & Shomberg, for appellant; Milton Hart, of counsel. Sissman & Sissman, for appellee; Peter Sissman, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Justice Eldredge

text:
    Third District.
    Frank T. O’Hair, plaintiff in error, v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Company, defendant in error.
    Gen. No. 8,543.
    Opinion filed February 1, 1932.
    Burnie McClain, for plaintiff in error. T. A. McCormack and S. W. Baxter, for defendant in error; H. H. Quigley, of counsel.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Clayton C. Clements et al., appellees, v. Rebecca Lind, appellant.
    Gen. No. 8,547.
    Opinion filed February 1, 1932.
    Leslie J. Taylor, for appellant; C. E. Flesher, of counsel. Hogan & Coale, for appellees.
   Mr. Justice Eldredge

delivered' the opinion of the court.


text:
    The People of the State of Illinois on the relation of Oscar Nelson, Auditor of Public Accounts of the State of Illinois, v. The Urbana Banking Company, Urbana, Illinois, on appeal of Anna O’Connor, intervening petitioner, appellant.
    Gen. No. 8,571.

      Opinion filed February 1, 1932.
    Schaefer & Dolan, for appellant. Green & Palmer, for appellee; Homer Shepherd, Jule Ftitz and Oris Barth, of counsel.
   Mr. Justice Eldredge

delivered the opinion of the court.


author: Mr. Justice Shurtleff

text:
    O. N. Piper, defendant in error, v. Amanda McDaniels and Lillie House, plaintiffs in error.
    Gen. No. 8,548.
    Opinion filed February 1, 1932.
    Lester Holman, for plaintiffs in error. No appearance for defendant in error.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Anna Marie Paul, by Charlie Paul, her father and next friend, defendant in error, v. Leslie Martin, plaintiff in error.
    Gen. No. 8,552.
    Opinion filed February 1, 1932.
    Barnabas F. Sears, for plaintiff in error; Earl S. Hodges, of counsel. Oscar J. Putting and H. C. Moore, for defendant in error.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    James Robert Cotton, by Alva Cotton, his next friend, appellee, v. Esther Balsley, appellant.
    Gen. No. 8,555.
    Opinion filed February 1, 1932.
    Rearick & Meeks, for appellant; L. A. Lowenstein, of counsel. J. R. Dean, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


author: Mr. Presiding Justice

text:
    Fourth District.
    T. G. Stafford, defendant in error, v. H. E. Kimmel, plaintiff in error.
    Opinion filed February 1, 1932.
    H. E. Kimmel, for plaintiff in error. D. F. Moore, for defendant in error.
   Mr. Presiding Justice

Barry delivered the opinion of the court.


author: Mr. Presiding Justice Barry

text:
    A. J. Binkley, administrator of the estate of Robert J. Carbray, deceased, appellee, v. The Prudential Insurance Company of America, appellant.
    Opinion filed February 1, 1932.
    Kramer, Campbell, Costello & Wieehert and Ed M. Spiller, for appellant. D. L. Duty, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


author: Mr. Justice Edwards

text:
    Cornelius Biebel, plaintiff in error, v. Dan Thompson, defendant in error.
    Opinion filed February 1, 1932.
    James 0. Miller, for plaintiff in error. P. K. Johnson, for defendant in error.
   Mr. Justice Edwards

delivered the opinion of the court.


text:
    Commercial State Bank of Waterloo, appellee, v. C. A. Hughes, appellant.
    Opinion filed February 1, 1932.
    A. H. Fridrichs, for appellant. Joseph W. Riekert, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.


text:
    Anna Reimann, defendant in error, v. Edward J. Schmitt, plaintiff in error.
    Opinion filed February 1, 1932.
    Curt Dindauer, John T. Thomas .and R. E. Costello, for plaintiff in error. P. K. Johnson and C. E. Chamberlin, for defendant in error.
   Mr. Justice Edwards

delivered the opinion of the court.


text:
    Edith W. Johnson, administratrix of the estate of Wayne Johnson, deceased, appellee, v. Illinois Central Railroad Company, appellant.
    Opinion filed February 1, 1932.
    Charles E. Feirieh, C. S. Miller and Miles S. Gilbert, for appellant; R. V. Fletcher and E. C. Craig, of counsel. Asa J. Wilbourn and Reed Green, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.


text:
    James J. Fogerty, defendant in error, v. Edward C. Mauer, plaintiff in error.
    Opinion filed February 1, 1932.
    Wheeler & Oehmke and Ralph Cook, for plaintiff in error; William E. Wheeler, William C. Dunham and Wilmer L. Vogt, of counsel. Kramer, Campbell, Costello & Wieehert, for defendant in error.
   Mr. Justice Edwards

delivered the opinion of the court.


author: Mr. Justice Fulton

text:
    The People of the State of Illinois, defendant in error, v. Frank Schell, plaintiff in error.
    Opinion filed February 1, 1932.
    Rehearing denied February 22, 1932.
    Geo. L. Meyer and F. M. Guinn, for plaintiff in error. J. H. Allio, State’s Attorney, for defendant in error.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    Arthur Henry Fix, appellant, v. Karr Range Company, appellee.
    Opinion filed February 1, 1932.
    Beasley & Zulley, for appellant. Farmer & Klingel, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    Edna Appleton, appellee, v. Montgomery Ward & Company, Inc., appellant.
    Opinion filed February 1, 1932.
    Wheeler & Oehmke and Winston, Strawn & Shaw, for appellant; Silas H. Strawn, Harold A. Smith, Charles B. Fullerton and William E. Wheeler, of counsel. Louis Beasley and Edward C. Zulley, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.


text:
    Martha Mitchell Bates, Appellee, v. The People of the State of Illinois ex rel. Oscar Nelson and A. W. Frankenfeld, Receiver, Appellant.
    Gen. No. 8,563.

      Heard in this court at the October term, 1931.
    Opinion filed February 1, 1932.
    E. E. Dowell, for appellant.
    Hill & Burlington, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

On February 6, 1930, the auditor of public accounts closed for examination and audit H. N. Schuyler State Bank located at Pana, Christian county, Illinois and on April 21,1930, A. W. Frankenfeld, appellant herein, was appointed receiver of the banlc by the auditor which appointment was confirmed by the circuit court of Christian county upon a bill filed by the auditor for that purpose.

This appeal is from a decree entered by the circuit court on the intervening* petition of Martha Mitchell Bates, appellee, praying* that a certain claim held by her against said insolvent bank be adjudged to be preferred and ordered paid in full over the general creditors of the bank. Upon a hearing before the court on the intervening petition the chancellor entered a decree adjudging among* other things said claim to be preferred. To review this decree this appeal is prosecuted by the receiver.

It appears that appellee resided at Oconee, Montgomery county, Illinois, and in 1914, received as her distributive share through some estate located at Medma, New York, a promissory note for the principal sum of $4,500 and a mortgage securing the same on some property in that State. For many years she had transacted all her banking business with the H. N. Schuyler State Bank of Pana of which Mr. H. N. Schuyler was president, but the evidence does not show that she had any general account with said bank at the time the tra~nsactions involved in this case took place. When she received this note and mortgage she placed it for safe-keeping in the Schuyler Bank and apparently collected the interest thereon each year. The note became due in the spring of 1929 and she requested the bank through Mr. Schuyler to collect it for her. The Schuyler Bank collected the note and interest amounting in all to $4,725 by way of a draft on some other bank payable to the Schuyler Bank. As soon as the Sehuyler Bank received this draft it sent it to the Chemical National Bank of New York to be deposited to the credit of the Schuyler Bank, said Chemical National Bank being the New York correspondent of the Schuyler Bank. After the collection was made by the Schuyler Bank, a certificate of deposit (Exhibit B) was executed by said bank as follows:

"CERTIFICATE OF DEPOSIT.
Established January 1, 1876.
Incorporated January 1, 1906 70-348
No. 145737.
H. N. SOHUYLER
STATE BANK.
Capital $200,000
$4725.00
Pana, Ill., Apr. 3, 1929.
Martha Mitchell Bates has deposited in this Bank
Forty Seven Hundred Twenty-Five and no-100 Dollars, payable to the order of self on return of this Certificate, properly indorsed.
H. 1ST. Schuyler,
President.
This deposit is not subject to check.”

This certificate of deposit was not delivered to appellee until after the receiver was appointed. Immediately after the collection of the note was made by the Schuyler Bank it notified appellee by letter of that fact and she was requested to call at the bank, and several days after appellee received the letter she went to the Schuyler Bank at Pana and had a conversation with Mr. Schuyler in regard to her money. Part of her testimony is as follows:

“Q. The question is what did you say to Mr. Schuyler and what did Mr. Schuyler'say to you with reference to this money that you got from the east? . . .
A. He told me he would put it out on a farm mortgage, and I left the money at the bank. . . .
Q. Go ahead and tell what he said.
A. Well he told me that he would notify me as soon as he got the papers ready; he was busy that morning, he would mail them to me, but he did not.
Q. Then did you go back?
A. I sure did.
Q. What did he say and what did you say?
A. He said he had been busy and had not got the papers ready, but he would get them ready right away.
Q. What did you say to him?
A. I went home like I always did and left the money there. . . .
Q. What did you say if anything to him on the day this paper was issued to you? Tell what you said to him and what he said to you.
A. I said I never got anything to show that the money is here, I would like to have something to show that I have got the money here. He told Miss Seiler to write me out a receipt.
Q. Where did that take place?
A. Eight in the bank where Miss Seiler sat at her desk. . . .
Q. Did you go in there (Schuyler Bank) at the same time that that draft came?
A. No sir, he notified me that the money was there, for me to come in; I told him I wanted him to loan it out, told him 1 would give him the privilege to put it out . . .
Q. Do you remember the date on which you had your first conversation with Mr. Schuyler?
A. I do not ■ — ■ ... I don’t remember them, no I don’t.
Q. When was the first time that you ever talked to Mr. Schuyler about this matter?
A. Well he had advised me to transfer it here, on account I could look after it better. It was a mortgage back there, and it come due then I transferred it here, or had him to transfer it. . . .
Q. Question read.
A. You mean about loaning it out?
Q. No, about the money, you said you had in the Schuyler Bank? . . .
A. It come from the bank in New York to Mr. Schuyler’s bank, I never had the money myself.
Q. When was the first time after that, that you talked to Mr. Schuyler?
A. I cannot tell you, it was in 1929, when it come due. It come to the bank and he notified me the money had come, I called up, I cannot tell you the date.
Q. Can you tell about the time?
A. Sometime in April. The first of April was when it was to be paid.
Q. And at that time did you have any conversation -with Mr. Schuyler?
A. After the money come I told him he could put it out. He said he would put it out for me, I told him he could; you want me to tell you the next thing? '
Q. You have answered my question.
A. I did.
Q. You told him, he could loan this on a mortgagef
A. Yes, on a farm mortgage.
Q. He told you he would?
A. Yes.
Q. He told you he would do that when he could find . a suitable loan for you, didn’t he?
A. No sir, he was to put it out right away.
Q. He said he would put it out right away?
A. Yes sir, he did.
Q. Was that all that occurred at that time?
A. Yes sir, I left the money there and I went home.
Q. Then when was the next time you saw Mr. Schuyler ?
A. Next time I went to town, I could not tell you how long it was.
Q. Do you remember what month it was in?
A. No, I don’t it was likely in April.
Q. Did you go into the bank again?
A. I did, and I didn’t get that receipt.
Q. Who did you talk to when you was in the bank that time?.
A. Mr. Schuyler and Miss Seiler both of them.
Q. When was the next time you were in there after this last time?
A. I think that is when I get the "receipt, I am not sure. I think the second time I went and I asked for the receipt and I told them I had nothing to show that I had anything there.
Q. Then it was that time you obtained this paper, which has been marked for identification as Exhibit ‘A,’ that is the receipt?
A. Yes sir.
Q. Who was present at the time you got this receipt ?
A. Mr. Schuyler and Miss Seiler. He told her to write that out.
Q. What did he say, to give you a receipt for the money?
A. Yes, he told her to give me a receipt or whatever he called it, she wrote it out. . . .
Q. When was the next time you went in to see Mr. Schuyler about'this matter?
A. I could not tell you, I went in different times, he was always busy, but the last time he said he had it partly fixed out, he had been working on it. ’ ’•

The so-called receipt referred to in the above testimony is as follows:

■ “H. N. Schuyler State Bank.
$4725.00 Pana, Illinois, April 27, 29,19....
Received from Mrs. Martha Mitchell Bates, Forty Seven Hundred Twenty-five and no-100 Dollars.
To be invested in Mortgage Loan.
H. N. Schuyler State Bank.
N. S.”

The above receipt (Exhibit A) is the basis for the contention of appellee that the Schuyler Bank held the money collected for her as trustee for the purpose of loaning the same for her.

Miss Seiler, stenographer and bookkeeper of the Schuyler Bank and a witness for appellee testified in substance: “After Exhibit B (the certificate of deposit) was issued and until the bank was closed, for a good part of the time it was in my letter basket on my desk. When the bank closed Exhibit B was in a basket marked unfinished business, in a till that was kept for that purpose. It was issued because that was the way we carried any collection that was temporary in the bank and not yet disposed of. With reference to this particular deposit Mr. Schuyler asked me to go through the mortgage file and see if we had anything that would fit the amount of money either in one mortgage or two or more if necessary. He told me he had promised Mrs. Bates to have a mortgage covering that if we had anything to fit it, and if we did not we would give her the first that came in that would fit it. We had on other occasions done similar transactions for people.”

While the original note and mortgage remained in the Schuyler Bank for safe-keeping, appellee owned the same and the relations between her and the Schuyler Bank were that of bailor and bailee. When the bank collected the note and mortgage for appellee at her request and received the money therefor the relations between the parties became that of debtor and creditor. In the case of People v. Iuka State Bank, 229 Ill. App. 4, it was held: “It seems to be the recognized doctrine of the courts of this State, and also other courts, that where paper has been sent to a bank with instructions simply to collect, the collection of the fund establishes the relation of debtor and creditor between the parties, and in that case there would be no trust. The greater weight of the authorities seems to be, however, that when the paper so sent is accepted for collection under expressed terms to collect and remit, then the money when collected is in the hands of the bank, a trust fund. (Macy v. Roedenbeck, supra; National Life Ins. Co. v. Mather, 118 Ill. App. 491; People v. Auburn State Bank, 215 Ill. App. 133.) ”

There was no request by appellee in the case at bar to have the money remitted to her. The question then arises whether the future transactions between the parties changed the status between them of debtor and creditor to that .of trustee and cestui que trust. After appellee received the receipt above mentioned no further conferences or dealings were had between her and the bank until after the receiver was appointed April 21, 1930, except that she inquired several times if the loan had been made. When the receiver took possession of the bank he.discovered the certificate of deposit and mailed it to appellee. Miss Seiler testified that the certificate of deposit had not been delivered to appellee before for the reason that it was kept on her desk as unfinished business on account of the bank attempting to procure a loan for the money for appellee. After the money had been collected by the bank and before the subject of loaning it was taketi. up between appellee and the bank, it had been deposited to the credit of the Schuyler Bank in the Chemical National Bank of New York. The evidence shows that the daily balances of the Schuyler Bank in the Chemical National Bank during the period from the time appellee’s money was collected by the Schuyler Bank until it was closed by the auditor, varied from $1,500 to $10,000. The evidence does not disclose what the balance was, if any, the day the Schuyler Bank was closed. When Exhibit A was executed the money had already become mingled with the other moneys of the Schuyler Bank and used by it in the business transactions of the bank and this was before it is claimed that the trust was established, and before Exhibit A was executed.

In the case of People v. Farmers State & Savings Bank, 338 Ill. 134, one Hamman, a township school treasurer, deposited school moneys in the Farmers State Bank in the savings department thereof and the bank issued a pass book to him as “Treasurer.” The bank failed and a receiver was appointed. Hamman filed an intervening petition to have said school moneys declared a trust fund and for a preference or priority in payment over other creditors of the bank. The court held: “As to whether or not the account was a trust fund under the facts of this case depends primarily upon the kind of deposits made by plaintiff in error. There are but two kinds of deposits: special and general. The former include those where the bank becomes a trustee for a depositor by special agreement or under circumstances sufficient to create a trust, and general deposits are those where the bank merely becomes the debtor of the depositor. As a rule, when money is deposited in a bank, title to such money. passes to the bank. The bank becomes the debtor of the depositor to the extent of the deposit, and to that extent the depositor becomes the creditor of the bank. Such deposit then constitutes a part of the assets of the bank, and in case of insolvency of the bank that deposit belongs to the creditors of the bank in proportion to the amount of their respective claims. Well recognized exceptions to this rule are, first, where money or other thing is deposited with the understanding that that particular money or thing is to be returned to the depositor; second, where the money or thing deposited is to be used for a specifically designated purpose; and third, where the deposit itself was wrongful or unlawful. In the instant case the deposits made by plaintiff in error were known to be composed of school funds, but there was no request or direction on the part of the township treasurer to the bank that it should keep the funds separate from other money in the bank. The funds were placed in a savings account, and the fact that the bank agreed to, and -did, pay interest upon the account tends to show the bank’s privilege of using the money without restriction. The record discloses no agreement whatever between the bank and plaintiff in error as to keeping the funds intact or their use and application for any particular purpose. The mere fact that a depositor makes a deposit in a fiduciary rather than an individual capacity does not make the deposit a special one.”

In the case at bar there was no request by appellee that her money should be kept separate from the other money in the bank. When appellee requested the bank to collect the note and mortgage held by her said request was not coupled with any other directions of any kind whatever. When the bank made the collection and received the draft for the money collected, it credited appellee with the amount of the draft and issued a certificate of deposit therefor in her name and immediately sent the draft to the Chemical National Bank of New York where it was deposited to the credit of the Schuyler Bank and became immediately mingled and mixed with the other moneys and deposits of the latter bank and used by it in and about its business as such bank. The identity of the fund as a fund thereby became lost before appellee made any request of the bank to invest her money in a mortgage loan. Her deposit in the bank at the time her request was made of the bank to procure for her a mortgage loan was a general deposit and she occupied no other position than that of a general creditor of the bank. When the bank through its president told appellee that he would invest her money for her as soon as he could find a loan to fit the amount of her deposit, the general deposit of appellee was not thereby changed from a general to a special one for the purpose of making a mortgage loan nor was the bank thereby created a trustee for the specific purpose of making the loan, especially insofar as the other general creditors of the bank were concerned. Nor, in our opinion, did the receipt given by the bank have such an effect. The receipt itself under the circumstances was but a promise on the part of the bank to procure a mortgage loan for appellee for the amount of her deposit when one could be found, and appellee’s acceptance of the receipt was an authorization of the bank to use her funds for the purchase of such loan. A number of cases have been cited by counsel for appellee in support of their contention that a trust was established but the decision in each case rests upon the facts that the original deposit was a special one for a specific purpose and that the fund had not lost its identity as such but could be traced and determined. Woodhouse v. Crandall, 197 Ill, 104; People v. Iuka State Bank, 229 Ill. App. 4; People v. Auburn State Bank, 215 Ill. App. 133; Kirby v. Wilson, 98 Ill. 240.

In the case of Wetherell v. O'Brien, 140 Ill. 146, one Roberts conducted a bank in Chicago known as the Thirty-first Street Bank." Michael Gerrity, as executor of the estate of John O’Brien, deceased, and Ellen 0 ’Brien, the widow of the deceased, went to said bank and deposited $1,900. Gerrity told Roberts that Mrs. 0 ’Brien wanted him to loan the money out as soon as he could upon a good real estate mortgage; that she wanted to leave it with him until it could be so loaned; that he should take care of it until he could find a place to lend it. Roberts took the money and delivered to Mrs. O’Brien a certificate of deposit for the amount, which was entered and posted in the savings department of the bank. The court held:

“Under the facts as thus stated the appellee is not entitled to be paid in full in preference to the other creditors, but must share with them in the assigned estate. There was, here, no case of bailment or special deposit. When the identical thing delivered is to be restored, though in- an altered form, the contract is one of bailment, but when the obligation is to return other things of the like kind and equal in value, it becomes a debt. (Lonergan v. Stewart, 55 Ill. 44.) The parties did not contemplate, that the same identical money received by Roberts, or his bank, was to be kept for the appellee, and returned to her. Nor was the -money delivered to Roberts, or the bank, as a special deposit. The deposit was a general one. . . .
“When money, which is delivered to a bank, even though it be for some specified purpose, as, for instance, investment in a mortgage security, has been mingled with the funds of the bank, as was done here, there is no reason why the depositor should be preferred above any other creditor.”

In the case of Mutual Accident Ass’n v. Jacobs, 141 Ill. 261, the association deposited with Samuel A. Kean, doing a banking business under the name of S. A. Kean & Co., the sum of $6,000 to be held by Kean to indemnify himself and one Cummings from any liability that might be incurred by them, or either of them, by reason of their having signed an appeal bond, as sureties for said association. The character of the deposit was acknowledged by S. A. Kean & Co. by a written instrument as follows:

“This is to certify that the Mutual Accident Association of the Northwest has deposited with Samuel A. Kean, of the county of Cook, State of Illinois, the sum of $6000, to be held by the said Kean upon the following conditions: “Whereas, one Emma A. Tuggle, of the county of McDonough, recovered a judgment against the said Accident Company for the sum of $5000 and costs, from which the said Accident Company have taken an appeal to the Appellate Court; and whereas, the said Samuel A. Kean and Jesse H. Cummings have signed the appeal bond in the said case: now, therefore, this $6000 deposited with Samuel A. Kean is to be held by the said Kean to indemnify himself and the said Jesse H. Cummings from any loss or liability incurred by them, or either of them, by reason of having signed said appeal bond, and after the said Jesse H. Cummings and Samuel A. Kean are fully discharged from all liability under said bond, then the said $6000 is to be returned to the said Mutual Accident Association, but not otherwise.
S. A. Kean & Co. (Branch),
Wesley L. Knox, Manager.”

The evidence showed that the association gave S. A. Kean & Co. a check on another bank, which went through the clearing house and was paid, and S. A. Kean & Co. with the knowledge of the petitioner mingled the money with the general funds of the Bank in the same manner as money deposited by other depositors. S. A. Kean & Co. made an assignment for the benefit of their creditors and the association filed an intervening petition seeking to have the deposit declared a special deposit in trust. The court held: “Here the money passed into the bank as a general deposit. It was mingled with other funds deposited in the bank, so that there is no means of separating it from other moneys received by the bank in its usual course of business, and the petitioner occupies the position of a general creditor.”

In the case of Bayor v. American Trust & Savings Bank, 157 Ill. 62, it was held: “It has frequently been announced as the law of this State, that even in a case where a definite and actual trust fund, which possesses all the attributes of a separate and distinct identity, has been so mixed and mingled with other funds as to render identification impossible, the cestui que trust, in the event of the insolvency of the trustee, is remitted to the position and the rights of a general creditor; and where the relation between the parties is primarily that of debtor and creditor, and there is a mere unperformed agreement on the part of the debtor to create a specific fund which shall possess a separate identity, and to hold the same in trust, it would be illogical and inconsistent with these adjudications to hold that such creditor occupies a stronger position than one who is primarily the beneficiary of a distinct and identified trust fund. We regard the cases of Trustees of Schools v. Kirwin, 25 Ill. 73, Otis v. Gross, 96 id. 612, Union Nat. Bank of Chicago v. Goetz, 138 id. 127, Wetherell v. O’Brien, 140 id. 146, and Mutual Accident Ass’n v. Jacobs, 141 id. 261, as conclusive against the contentions urged herein by appellant.”

Appellee had at all times before the bank closed complete power and control over her money. She could have at any time before that date withdrawn the fund in toto, or rescinded her request of the bank to purchase for her a mortgage loan, or could have requested the purchase of some other security. The purchase of the mortgage loan was never consummated and appellee allowed her money to remain in the bank for a period of 10 months and during that period of time the relation of debtor and creditor was never changed.

The decree is erroneous in other respects in that it orders the receiver to pay to appellee the sum of $4,725 out of the moneys now on hand or to be collected from the assets of said bank within 90 days. Even if it be considered that the receiver held said fund as a trust fund and that appellee had a preference or priority in the payment thereof over the general creditors of the bank, yet she could only share pro rata with the other preferred creditors, if any. There is no evidence as to whether at the time the decree was entered there were any other preferred creditors or whether the liquidation of the bank had proceeded far enough to determine whether there might be other preferred creditors. It was error also to order the receiver to pay her claim within 90 days as there was no evidence that the administration of the affairs of the bank had reached such a point that an order of distribution to the creditors would be expedient or even possible within that time and there was no evidence that after the costs of the administration had been paid there would remain in the hands of the receiver sufficient funds to pay the claim. Upon the finding that the claim of appellee was a preferred one, the decree should have provided that upon the distribution of preferred claims, appellee should share pro rata with the other preferred creditors.

The decree of the circuit court is reversed and the cause is remanded with directions to enter a decree finding that appellee is a general creditor of the bank and that her claim should pro rate with the claims of all the other general creditors thereof.

Reversed and remanded with directions.


text:
    William Sullivan, Appellant, v. The Board of Trustees of the University of Illinois, Appellee.
    Gen. No. 8,568.
    Heard in this court at the October term, 1931.
    Opinion filed February 1, 1932.
    Busch & Harrington, for appellant; C. E. Tate, of counsel.
    Sveinbjorn Johnson, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

This case originated before a justice of the peace. On the trial in the circuit court on appeal, the court directed the jury to find the defendant not guilty.

William Sullivan, appellant, owned a farm in Champaign county on which one Matt Ohl was a tenant, under a lease providing for a cash rental of $1,000 per year payable in the sums of $500 on the first days of September and January of each year. The lease expired on the first day of March, 1930. During the season from March 1, 1929, and ending March 1, 1930, Ohl raised certain corn upon the premises part of which, consisting of 340 89-1,000 bushels,- he sold to the University of Ulinois. This corn was delivered to the University on March 4, 1930, and the University by check paid to said Ohl the price thereof April 30, 1930. It appears that the University had purchased corn raised on the Sullivan farm a number of times previously and had paid for the same by check payable to both Sullivan and Ohl. The corn involved in this case was purchased through the Department of Animal Husbandry in the College of Agriculture. It appears from the evidence that certain procedure must be followed in the purchase of merchandise for the University before a contract therefor is completed. This was substantially as follows as provided by the rules of the University, which rules are printed upon the different documents used in the transaction. The Department of Animal Husbandry in the College of Agriculture, when it finds it necessary to purchase corn, directs some member of that department to ascertain where the corn can be purchased and the price thereofupon finding the corn and a person willing to sell, a requisition is made out by the head of the department; this requisition confirms or approves the order tentatively given by the representative of the department and if approved is signed by the head of the department; it is then sent to the business office and checked over by the comptroller to determine that money has been appropriated which is available for the purpose; it is then checked over by the auditor to make sure that the board of trustees of the University have appropriated money which is properly available for the proposed purchase; having received the approval of all these different officers, the purchase'is approved by the purchasing agent.

In the present case Mr. C. W. Crawford, who held the rank of Associate in Animal Husbandry, was requested by that department to find some corn for the department. He made a tentative purchase of the corn from Ohl which was finally properly approved in the manner above mentioned, and while the corn was being delivered Sullivan testified he went to Crawford and notified him that Ohl was leaving appellant’s farm that year and that he wanted the check for the corn made out to himself and Ohl jointly as Ohl’s rent had not been paid and that Crawford agreed that the check would be made out payable to Ohl and Crawford jointly as requested. The evidence shows that the check was made payable to Ohl alone.

Counsel for appellant claim this is an action in assumpsit for the breach of contract. They state their position as follows:

“So as to again make our position clear before this Court, we wish to state at the outset that it is not our contention that the action of the University of Illinois in purchasing the corn in question was an impairment of the landlord’s lien of the appellant in this case. Indeed, it is our contention that the agreement which Mr. Sullivan entered into with the agent of the Board of Trustees of the University of Illinois required that the appellant waive his landlord’s lien as to the corn in question. Certainly, therefore, where he agreed to waive his lien by permitting the corn to be sold, he could not claim an impairment of that lien. We state • this at the outset, as there was considerable argument in the trial directed to that phase of the case.
“It is our position and contention that a contract was entered into by the appellant with the agent of the Board of Trustees (Mr. Crawford) to the effect that Mr. Sullivan, in consideration of the check for the corn being made payable jointly to himself and Mr. Ohl, would permit the tenant to sell the corn to the University and thereby waive all of his rights to a lien for rent which was owing to him for the current year by Mr. Ohl as a tenant on the farm of appellant; and it is our belief that the evidence sustains such a contract and a breach thereof by the University. If such is the case, there can be no question, we believe, but that the appellant was entitled to recover a judgment against the University. ’ ’

The corn in question was the absolute property of Ohl. Of course, it was subject to a landlord’s lien for rent when such a lien should be enforced. It has long been held in this State that the remedy by a landlord for the impairment of his landlord’s lien resulting from the purchase by a third party of the property covered by the lien is an action on the case, that is, in tort. Finney v. Harding, 136 Ill. 573. It is apparent also that Crawford had no authority to bind the trustees of the University by any contract of the nature claimed. His authority was limited to ascertaining where the required commodity could be bought, the price to be paid therefor and the name of the owner. This information was submitted to higher authorities who approved or disapproved the purchase as they saw fit. Crawford had no authority to contract with Sullivan as to whom the price of the corn should be paid. The corn was the property of Ohl. It was purchased from him and he was properly paid therefor. If his landlord’s lien was impaired by this transaction then Sullivan had his remedy in tort. There is a stipulation of facts filed in this case wherein it is shown that on March 16, 1930, Sullivan took possession of 1,800 bushels of corn in the crib on the farm and that the market price of said corn at that time was 64^ per bushel. The value of this corn therefore was $1,152. He testified that when Ohl left the farm there was a balance of $600 due for rent. The evidence clearly shows that Sullivan was not damaged in any way by the payment to Ohl for the corn purchased by the University because by his own testimony he dis-trained corn of the value of $552 more than was sufficient to pay the balance of the rent due him by Ohl. From no point of view has appellant any cause of action against appellee.

The judgment of the circuit court is affirmed.

Affirmed.


text:
    Charles H. Woods, Appellee, v. Great American Insurance Company, Appellant.
    Gen. No. 8,575.

      Heard in this court at the October term, 1931.
    Opinion filed February 1, 1932.
    Miller & Miller and Hicks & Folonie, for appellant.
    W. A. Covey, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

Appellee recovered a judgment against appellant for $170 in an action on an insurance policy to recover damages to his radio receiving set caused by lightning striking the antenna or aerial and the electrical current therefrom entering the receiving set and damaging the electrical parts thereof to the amount of $160 and the cabinet to the amount of $10. There was no damage by fire.

The policy of insurance covered all direct loss or damage by fire and lightning to the extent of $1,200 on certain personal property located in the residence of appellee described as follows:

‘‘ $1,200 on household and kitchen furniture and utensils, useful and ornamental (the property of assured and all members of assured’s family), including carpets, rugs, draperies, curtains, beds, bedding, linen, family wearing apparel and materials for same; plate and plated ware; printed books and music; piano stool and cover; piano and other musical instruments; mirrors, portraits, pictures, paintings, engravings, including their frames, statuary and sculpture, all at not exceeding cost; watches and jewelry and bicycles in use, baby carriages, amateur photographic outfit and supplies; fishing tackle, firearms, athletic and sporting implements; mechanics’, carpenter and garden tools and implements; typewriters, sewing machines, trunks, traveling equipments, canes and umbrellas; lamps, china, glass and crockery ware; fuel, family stores and supplies; electrical apparatus, appliances and, devices; scientific apparatus, appliances, devices and implements ; and all other furniture and fixtures not belonging to and constituting a permanent part of the building; all only while, contained in, or attached to, the above described building; also, if not otherwise insured, porch and lawn furniture, bicycles in use, trunks (excluding contents of same), tools, fuel and supplies, while stored in outbuildings on the above described premises. ...”

The policy also contained the following clauses:

“Lightning and Electrical Exemption or Dynamo Clauses.
“Lightning Clause: Except as provided in the Electrical Exemption or Dynamo Clause below this policy shall cover any direct loss or damage caused by lightning (meaning thereby the commonly accepted use of the term lightning, and in no case to include loss ór damage by cyclone, tornado or windstorm), not exceeding the sum insured, nor the interest of the insured in the property, and subject in all other respects to the terms and conditions of this policy. Provided, however, if there shall be any other insurance on said property, this company shall be liable pro rata with such other insurance for any direct loss by lightning, whether such other insurance be against direct loss by lightning or not.
“Electrical Exemption or Dynamo Clause: If dynamos, exciters, lamps, motors, switches or other electrical appliances or devices are covered under this policy, this company shall not be liable for any electrical injury or disturbance, whether from artificial or-natural causes, unless fire ensues, and then only for such loss or damage to them as may be caused by such ensuing fire; this limitation to be operative notwithstanding any provision to the contrary in the lightning clause attached.”

It will thus be seen that the policy covers, in the first clause above quoted, all direct loss or damage by fire and lightning, of electrical apparatus, appliances and devices except as thereinafter provided, and the question is, whether the “Electrical Exemption or Dynamo Clause” includes under the doctrine ejusdem generis radio receiving sets which are operated by an electrical current procured from the electric light wires in the house by attachment thereto. All radio receiving sets are operated by electricity either produced by self-contained batteries or by direct attachment to a current supplied by other sources. Under the familiar rules of construction of the doctrine of ejusdem generis the words “or other electrical appliances or devices” being general words which follow the particular words “dynamos, exciters, lamps, motors, switches ’ ’ can mean only things of the same kind or class as those which are particularly mentioned. Gage v. Cameron, 212 Ill. 146. General and specific words, which are capable of an analogous meaning, being associated together, take color from each other, so that the general words are restricted to a sense analogous to the- less general. Misch v. Russell, 136 Ill. 22; First Nat. Bank of Joliet v. Adam, 138 Ill. 483. It is a matter of common knowledge that a radió receiving set operated by electricity has no characteristics of dynamos, exciters, lamps, motors or switches as those terms are used in this clause.

In our opinion the radio receiving set of appellee was not excluded by the Dynamo Exemption Clause above noted. The judgment of the county court is affirmed.

Affirmed.


text:
    Lenora Kellum, Appellee, v. Village of Greenup, Appellant.
    Gen. No. 8,579.
    Heard in this court at the October term, 1931.
    Opinion filed February 1, 1932.
    Albert E. Isley, for appellant.

      August Caylor and Craig & Craig, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

Lenora Kellum, appellee, is the owner in fee of a certain tract of land consisting of a number of acres (the exact number nowhere appears in the record) which lies within the corporate limits of the Village of Greenup, Cumberland county. She purchased the lands in 1909. The premises consist of arable and pasture lands on which is located the dwelling house of appellee together with outbuildings appurtenant thereto and are used by appellee for the purpose of pasturing cattle and domestic animals. She is engaged in supplying milk and milk products to the people residing in the village. A natural open stream or watercourse flows across the premises from west to east. The village owns a tile drain which accommodates a large number of homes, a shoe factory, a large school and about 65 business houses. This tile sewer so owned and controlled by the village empties into the natural watercourse on appellee’s premises on the west side thereof and is carried across the same emerging on the east side thereof. Appellee filed her bill to enjoin the village from discharging any more sewage into the open watercourse on her premises. The proofs were heard before the chancellor who entered a decree in conformity with the prayer of the bill. The proofs showed that the stream on appellee’s premises became so polluted with filth that the cattle pasturing thereon became so dirty in wading across the same that they had to be cleaned before they could be milked. Deposits of sewage and sludge beds were formed on the premises and emitted at times a very offensive odor. Numerous complaints were made to the village from time to time by appellee in regard to the matter. She made -complaints to the State Board of Health who sent one of their engineers to investigate the condition- of the stream and his testimony is to thé effect that said stream is polluted by the sewage deposited therein by the village. The village at one time erected fences along the banks of the stream to prevent the cattle from getting into it and these fences inclosed about twelve acres of appellee’s land. The answer of the village sets up two defenses. The first is that prior to the time that appellee acquired the premises the village had purchased from the former owners easements granting it the privilege of carrying the sewage across the premises in the open stream. The evidence shows that the deeds conveying said easements were not recorded at the time appellee purchased the premises and that she had no knowledge thereof. Moreover, these easements granted only the privilege of laying a tile or tiles from the outlet of the sewerage system of the village over and across said land and did not grant the privilege of running the sewage into the open stream. The second defense is that the village made an oral agreement with appellee to the effect that it would furnish her water free of charge in return for the privilege of emptying its sewage into the stream in question and carrying it across her premises. There is some evidence tending to support this agreement but appellee denied that she ever entered into any such understanding with the village. In any event, it would be but an oral agreement or license which did not run with the land and could be revoked at any time. Boland v. Walters, 346 Ill. 184. The evidence fully supports the findings of the chancellor and the decree of the circuit court -is affirmed.

Affirmed.


text:
    William N. Hairgrove, Appellant, v. Wabash Railway Company, Appellee.
    Gen. No. 8,582.
    Heard in this court at the October term, 1931.
    Opinion filed February 1, 1932.
    W. H. Absher and A. M. Fitzgerald, for appellant.
    Bellatti, Samuel & Moriarty, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

William N. Hairgrove, appellant, recovered a judgment against the Wabash Railway Company in an action on the case for the sum of $250 and prosecutes this appeal for a reversal thereof on the ground that the damages assessed by the jury are inadequate.

Appellant is an attorney at law and at. about 9 o’clock on the evening of November 6,1930, he boarded the train in the City of Jacksonville intending to go to Chicago. He had purchased his railroad ticket and also a reservation for a lower berth in the Pullman sleeping car. At about 10:30 o’clock he retired to his berth and at 5:20 the following morning he got up for the purpose of going to the toilet and while walking down the aisle of the car toward the same stubbed his little toe against something which he claims was some kind of an obstruction in the aisle. When he arrived at Chicago after transacting his business he had an x-ray taken of the toe which showed a simple oblique fracture thereof. He returned to his home in Jacksonville and consulted Dr. Hairgrove and showed him the x-ray picture that he had taken in Chicago. On the advice of Dr. Hairgrove he went to the hospital in Jacksonville where he claimed he remained five weeks. Then he went to Hot Springs where he took baths and had hot packs put on his foot to reduce the swelling. The evidence does not show how long he stayed there but he testified that'his expense at Hot Springs was more than $100. He also testified that he paid the doctor at Jacksonville for his treatment while in the hospital the sum of $40 and that he paid the hospital in Jacksonville something over $200. He also testified that during the last five years in the practice of his profession his earnings were between $7,000 and $14,500 per year and that the average of his annual earnings would be $9,000 gross and $5,000 net. He further testified: “I was not able during that time to carry on my professional duties. I was carried out of there once during that time but was not able to get to the court room to make arrangements about setting of cases.” With the exception of his testimony that he suffered pain from the injury the above was all the evidence in regard to the question of damages. There was no evidence of any actual loss of income on account of his injury. There was no tangible evidence of any kind on which the jury could base damages as to what he lost in his income and there is no, evidence that it was necessary for him to go to Hot Springs to be treated. The injury had been completely healed when he left the hospital at Jacksonville and he did not go to Hot Springs on the advice of his doctor. Under these circumstances, we do not feel justified in reversing the judgment.

The judgment is affirmed.

Affirmed.


text:
    In re People of the State of Illinois on Relation of Oscar Nelson, Complainant, v. Illiana State Bank, Defendant. Harvey B. Clem, Appellant, v. Wilbur P. Craig, Appellee.
    Gen. No. 8,586.

      Heard in this court at the October term, 1931.
    Opinion filed February 1, 1932.
    Hutton & Clark and Louis J. Bremer, for appellant; H. Ernest Hutton, of counsel.
    Alfred A. Johnson, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

The Illiana State Bank for about 15 years prior to June 13, 1930, had carried on a banldng business in the Village of Illiana, Vermilion county. The president of the Bank was Asbury M. Loring, a farmer. The only employee of the Bank was one Fred R. Bell, who was a director and also performed the duties of cashier, teller, clerk and bookkeeper and was in sole charge thereof. On June 9, 1930, a State bank examiner discovered a shortage in the accounts of the Bank. Bell resigned June 11 and on June 13 the directors resolved to close the Bank and turn it over to the State auditor of public accounts which was done. The auditor appointed Wilbur P. Craig as temporary receiver and, on a bill filed by the auditor, said Craig was appointed by the court as such receiver on October 11, 1930. On October 27, the receiver, by leave of court, filed his petition making said Asbury M. Loring defendant, to determine the ownership of a certain promissory note dated December 10,1929, for the principal sum of $5,000 executed by a copartnership called State Line Grain Company and by its partners, Y. Current and Faye Current and also by M. A. Current, a relative of the other Currents but not a partner in the Grain Co. In the petition of the receiver it is alleged that said note was delivered by the makers thereof to Bell as cashier of the Bank for a valuable consideration and was kept by said Bell in the vault of the Bank and included among the assets thereof; that on June 11, 1930, Bell delivered the note to A. M. Loring, the defendant in the petition, who still has the note and refuses to deliver it to the receiver; that in the original note the name of Illiana State Bank was the payee but that said name had been interlined and blotted out and the name of said Bell had been substituted and written in as payee and that said Bell had indorsed his name on the back thereof and delivered the same to said Loring who it is charged has no title or interest therein. The prayer of the petition is that said Loring be required to deliver the note to the receiver.

While Frances M. Loring was not made a party defendant to the receiver’s petition she joined with A. M. Loring in an answer thereto. In this joint answer of A. M. Loring and Frances M. Loring it is alleged that the money which was a consideration for the note mentioned in the receiver’s petition was the proceeds of United States Liberty Bonds which belonged to A. M. and Frances M. Loring and which had been left with said Bell for safe-keeping; that said Bell fraudulently and without any authority whatever from said Lorings and without their knowledge or consent sold said bonds and with' the money arising from the sale thereof loaned $5,000 to the Grain Co., the makers of the note; that afterwards when it became known that said Bell had sold said bonds and when said Lorings had made a demand upon Bell for the return of them or the proceeds thereof, he, the said Bell, delivered to A. M. Loring the note in question and he said that the money arising from the sale of said bonds was the consideration of said note and that the latter really belonged to said Lorings; the answer denied that said note was the property of the Bank and alleged that the only consideration thereof was the proceeds of the sale of said bonds belonging to said Lorings.

Subsequently Harvey B. Clem, appellant, by leave of court, filed his intervening petition in which it is alleged that on August 30,1929, Clem went to said Bell as the cashier of the Illiana State Bank and asked Bell to purchase United States Government Bonds for him and issued and delivered to Bell two certain checks payable to “Bank” one for the sum of $2,002.75 and the other for the sum of $3,006.50; that at the time of the delivery of said checks to Bell appellant had more than $5,100 on deposit in said Bank to the credit of his checking* account; that by means of said checks so delivered, said moneys were withdrawn from Clem’s account and said Bank and Bell then held the same in trust to purchase such government bonds for appellant, but in violation of said trust said Bank and Bell loaned said money to the State Line Grain Co.; that said money so loaned to the Grain Co. either by credit on overdraft of the Grain Co., by renewal note or as an original note evidencing* said loan to them, is evidenced by the note dated December 10, 1929 for the principal sum. of $5,000 signed by said Grain Co. and said Currents ,* that said moneys of appellant so given to the Bank for the purchase of such bonds were not deposited in any general account in the Bank to the credit of appellant but that the same were delivered as a special deposit to the Bank and to Bell as its cashier for the express purpose and none other, of purchasing such bonds on the market as the agent and. representative of appellant and that said funds thereby in law are deemed not to have been mingled with the general moneys and assets of said Bank but are deemed to be a special fund, etc.

Answers and replications were filed by all the parties and the cause was referred to a special master in chancery to take the proofs and report his findings and conclusions on the law and the facts. During the hearing the Grain Co. and the Currents, the makers of the note in question, filed a petition stating in substance that they did not desire to be involved in the litigation between the different claimants of the note and asked leave to deposit the money represented by the note and interest thereon with the circuit clerk with the stipulation that the deposit should stand in lieu of the note until the ownership thereof had been finally determined. The court granted this request and the Grain Co. deposited $5,314.98 with the clerk of the court where said sum now remains awaiting the final determination of its ownership.

The basis of the claim of the Lorings to the note in controversy.developed from the following facts: A number of years prior to the execution of the note, the Lorings, who were brother and sister, owned some Liberty Bonds which they gave to Bell for the purpose of delivering them to the county treasurer of Vermilion county as security to the treasurer in making deposits of public funds in the Illiana State Bank. Bell, instead of depositing the bonds with the county treasurer, appropriated the same and converted the proceeds thereof to his own use. When the bank examiner discovered on his examination of the bank in June, 1929, the defalcations of Bell, he drove out to Mr. Loring’s residence and notified him of that fact. Loring and the bank examiner then drove to the office of the county treasurer of Vermilion county to see if these bonds had been deposited there by Bell and discovered that they were not there. On the way back home they met Bell on the public highway while he was driving in an automobile in the opposite direction. They stopped Bell and asked him, in substance, what he had done with the bonds and Bell told them that he had sold them and that he had loaned the proceeds thereof to the Grain Co. and took the note in question out of his pocket, indorsed his name on the back thereof and delivered it to Mr. Loring with the remark that the note really belonged to Mr. Loring. The note at this time was in the following form:

“State Line, Ind., Dec. 10, 1929.
“Ninety days after date, for value received, we, or either of us, promise to pay to the order Fred B. Bell of The Illiana ■ -Stato-Baek- of Illiana, Illinois, Five Thousand Dollars at said bank with interest at seven per cent, per annum after maturity.
“And to secure the payment of said amount, each of the undersigned does hereby irrevocably authorize any attorney of any court of record to appear for him in such court at any time hereafter, either in term time or vacation, without process, and to confess judgment in favor of the holder hereof against him alone or against him and one or more of the other makers of this note for such amount as may appear to be unpaid thereon, together with costs and ten per cent of the principal amount as attorney’s fees, and to waive and release all errors which may intervene in any such proceedings, and to consent to immediate execution on such judgment.
State Line Grain Company.
V. Current,
Faye B. Current, M. A. Current.
(Indorsed)
Fred B. Bell.”

The above note was a renewal of an original note executed by the same makers dated October 11, 1929. The bank examiner and Mr. Loring each testified to this conversation with Bell. Mr. Loring’ and his sister also testified that at another time he told them that the proceeds from the sale of these bonds v;as the consideration of the note in question. Bell denies that he made such statements. On the hearing, however, it developed that part of these Liberty Bonds were sold by Bell about a year prior to the execution of the note in question and that the balance of the bonds was not sold by Bell until after said original note was executed and the master found that the proceeds from the sale of the Loring bonds were not used in the loan to the Grain Co. The Lorings filed no objections to the master’s report in this respect nor made any further attempt to prosecute their claim of ownership of the note and have no further interest in the result of this suit. . .

The claim of Harvey B. Ciena, appellant, as presented by his intervening petition, is the only issue to be considered. On August 30, 1929, Clem went to the Illiana State Bank and requested Bell to buy for him United States Government Bonds of the par value of $5,000 which Bell agreed to do and filled out two checks on the Illiana State Bank which appellant signed and delivered to Bell. These checks are as follows:

“State Line, Ind., Aug. 30, 1929 Illiana State Bank 70-1368 Of Illiana, Illinois
Pay to... .Bank..... or order, $3006.50 Three Thousand Six.........50 Dollars For Bond $3000.00 Aug. 15
Harvey B. Clem.”
“State Line, Ind., Aug. 30,1929. Illiana State Bank 70-1368
Of Illiana, Illinois
Pay to....Bank... .or order, $2002.75 Two Thousand Two.......75 Dollars For Bond $2000.00 Aug. 1st
Harvey B. Clem.”

Bell never purchased the bonds. The loan to the Grain Co. was not made until October 11, 1929, nearly two months after Clem delivered these checks to Bell, and the former’s claim that his money represented by these checks constituted the loan of the Bank to the Grain Co. is based solely upon the testimony of Bell. At the time of the hearing before the special master, Bell had been indicted, convicted and was under sentence for his embezzlements. The proofs show that the books of the Bank as kept by him are but a mass of fictitious figures and false entries. Depositors’ accounts are credited with deposits that were never made and are debited with withdrawals which were never made. It is conceded that on August 30, 1929, Clem had, or should have had, sufficient money to his credit in the Bank to more than cover the amount of the checks but the books show that on August 28, 1929, he only had $325.97 on deposit and that between that time and September 9 which is the next date noted in the account he had withdrawn $20.48 and his balance on that date was $305.49. According to Bell’s own testimony he would take the money from the account of one depositor and credit it in the account of another depositor and credit his own account with fictitious deposits so that the books of the Bank represented but a jumbled mass of falsifications. There is no item in the books which can in any way substantiate his testimony that the amount of Clem’s checks were used in the loan to the Grain Co. There is nothing in Clem’s account with the Bank which can in any way be connected with the withdrawal of these funds from his account and the loan to the Grain Co. The books do not even show that any such amount as represented by Clem’s checks was ever withdrawn from Clem’s deposit in the Bank. Clem’s pass book, however, does show correct balances of his account with the Bank including the withdrawal therefrom of the amounts represented by the checks given by Clem to the Bank for the purchase of the government bonds for Clem.

The oral testimony of Bell on which appellant bases its claim that the particular funds represented by the two checks made by Clem were used by Bell as the consideration for the note made by the State Line Grain Co. developed in the following manner: The State Line Grain Co. had been a depositor in the Bank for several years and it appears from the evidence that it had been running an overdraft for a long period of time. This overdraft on the 23rd of September, 1929, amounted to more than $6,500. On September 27, 28 days after the date of appellant’s checks, there appears on the ledger account of the Grain Co. a deposit of $5,000 which reduced the overdraft of the Grain Co., as shown by this ledger account to $1,077.67. Bell was placed upon the witness stand by the receiver and a number of questions had been asked of him what the $5,000 on the ledger account of the Grain Co. purported to be, whether it was a deposit for cash or for some note or other credit. Bell had answered to a previous question that it was a cash deposit by the State Line Grain Co. on that date. Thereafter the following questions and answers then appear in his testimony as follows:

“Q. Did you receive any cash deposit on that date of the State Line Grain Company?
A. "Well, only—
Q. State whether you did or not.
A. Well, whatever the records show.
Q. Well, did you or did you not?
A. ■ Well, I don’t remember as to that.
Q. The receipt here of $5,000, Mr. Bell,,is either a receipt for cash or for some note or other credit?
A. I think it was for a couple of checks, Mr. Clem’s checks. ’ ’

The last answer of Bell was a voluntary statement of the witness and not responsive to the question. On cross-examination of Bell, the master admitted the following testimony subject to the objection of counsel for the receiver:

“Q. This $5,000 that is reported to be received on this Exhibit' 8 was $5,000 of Harvey Clem’s money?
A. Yes, sir.
Q. And Harvey Clem, he is one of the petitioners in this case?
A. Yes, sir.
Q. And $5,000 Harvey Clem gave two certain checks to this bank to buy — and to you as representative of the bank — some government liberty bonds for him?
A. Yes, sir.”

It is claimed by counsel for appellant that this testimony of Bell is .binding upon the receiver because Bell was a witness produced by the receiver and that it conclusively proves that the particular money to the amount of $5,000 withdrawn from appellant’s account was used by the Bank as a credit upon the account of the State Line Grain Co. and represented by the note given by the Grain Co. The original note given by the State Line Grain Co. was dated October 11, 1929. The note in evidence is a renewal note dated December 10, 1929. The credit of $5,000 in the Grain Company’s ledger account under the column headed “Deposits” is datpd September 27, 1929. In the bank’s journal under the date of October 12,1929, a loan of $5,000 is shown to have been made to the Grain Co. The pass book of the Grain Co. does not show any deposit to its account of $5,000 on September 27, 1929, but does show a deposit on October 11, 1929, of $5,000 preceded by the word “Note.” The renewal note of the Grain Co. in evidence dated December 10, 1929, shows that the words “Illiana State Bank” were crossed out by a line being drawn through them and above them the words “Fred R. Bell” were written in. Faye R. Current and V. Current who signed the renewal note testified positively that when they signed the original and the renewal notes the name of Fred R. Bell was not written in either one of them. A. M. Loring, Frances Loring and the bank examiner, Glen C. Hodges, each testified that Bell told them that the money represented by the note of the State Line Grain Co. was the proceeds received by him from the embezzlement and sale of the government bonds owned by the Lorings. Bell was impeached in his testimony by the books of the Bank kept by him and by the testimony of the above witnesses and by his own action in indorsing his name on the back of the note and delivering it to Mr. Loring as Mr. Loring’s property. The fact that the proofs showed that what he told the bank examiner and the Lorings was false does not lessen the effect of their testimony on the question of the impeachment of his veracity. The burden was upon appellant to prove by a preponderance of the evidence that his funds represented by his checks were used by the Bank, to the extent of $5,000 for the purpose of crediting the account of the State Line Grain Co. with that amount. There is no evidence in the record in support of appellant’s contention except the uncorroborated oral testimony, of Bell which we hold is unworthy of belief.

The receiver was not bound by this testimony of Bell’s nor was the special master in chancery, to whom the case was referred, nor the chancellor, who entered the decree, bound to stultify themselves by giving credence to his testimony under the facts and circumstances appearing in the evidence.

In the case of Chicago City Ry. Co. v. Gregory, 221 Ill. 591, the court held: “The law is well settled that a party to a suit cannot impeach a witness voluntarily called by him, except as that result may be incidentally accomplished by proving a state of facts differing from that sworn to by the witness in question. G-reenleaf on Evidence, sec. 442; Rockwood v. Poundstone, 38 Ill. 199; Griffin v. City of Chicago, 57 id. 317; American Hoist and Herrick Co. v. Hall, 208 id. 597; 10 Ency. of Pl. & Pr. 316.” In the case of People v. O’Gara, 271 Ill. 138, the court held: “Defendant insists that counsel for the People were improperly allowed to cross-examine and impeach their own witness, Thomas G. Begeska. The State’s attorney claimed he was surprised at the witness’ answers. The rule is that when a witness unexpectedly gives testimony against the party calling him, such party has the right to examine him and by such examination show that the witness is giving unexpected testimony against the party examining him, and to specifically call the attention of the witness to his former statements for the purpose of refreshing his memory or awakening his conscience and cause him to relent and speak the truth if he was lying. If, however, the witness denies the alleged statements the party calling him must be concluded by his answers, and cannot show, either by the written statement of the witness or by other witnesses, that the witness did, in fact, make those statements, either for the purpose of impeachment or as original evidence of the facts sought to be proved. He may, hoivever, prove by other witnesses the facts sought to be proved by the witness giving such unexpected testimony. (People v. Lukoszus, 242 Ill. 101; Chicago City Railway Co. v. Gregory, 221 id. 591; American Hoist and Derrick Co. v. Hall, 208 id. 597.) The court ruled in accordance with the foregoing rules and committed no error in that regard. ’ ’

There.is-no evidence that Bell upon the receipt of appellant’s checks withdrew the moneys represented thereby from the latter’s account and in any way segrégated it from, any other moneys in the Bank to use exclusively as a credit on the overdrawn account of the Grain Co. in the form of a loan evidenced by the original note of the Grain Co. According to his own testimony'Bell shifted debits and credits around in the accounts of the depositors of the" Bank in any way that suited his purpose. His testimony as to the use of Clem’s money as a consideration for the original note of the Grain Co. was incidentally and completely impeached by substantially every fact and circumstance developed by the evidence. The voluntary, unresponsive statement of Bell in answer to the question asked him on direct examination, hereinabove set out, did not open the doors to appellant to cross-examine him in regard thereto. In any event the receiver was not bound by the testimony given on such cross-examination and when counsel for appellant sought to cross-examine Bell on that subject, appellant made him his own witness and was governed by the rules of evidence in regard to direct examinations. Every question propounded by counsel for appellant on this alleged cross-examination was leading and suggestive and put the answer into the witness’ mouth and the answers to each of the questions propounded, being simply the words, “Yes, sir,” were incompetent and were admitted by the master subject to objection and should not be considered.

If the testimony of Bell as to the use of the money represented by appellant’s checks be disregarded then all that is proven by the evidence in this record is that appellant made the checks payable to “Bank” and delivered them to Bell, the cashier of the Illiana State Bank, with the request that he purchase with the funds represented by said checks United States "Government Bonds. The purchase was never made and it will be presumed that the money was mingled with the other moneys in the Bank and used in the course of the Bank’s business or was embezzled by Bell. The burden was upon appellant to trace the fund so that it could be identified either as the original property of appellant, as the cestui que trust or as a product thereof. Woodhouse v. Crandall, 197 Ill. 104. It is not necessary, if the trust be. moneys, that the particular coin or kind of money or the individual pieces shall be identified in order to pursue it, but its identity as a fund must be preserved so that it can be distinguished from all Other money. So long as it can be followed as a separate and independent fund, distinguishable from any other fund, it can be pursued. School Trustees v. Kirwin, 25 Ill. 73. But on the other hand, the mere fact that, a trustee has received a trust fund which he has disposed of or dissipated, or mingled it with his other funds and property, so that it is impossible to trace the fund and show where it is, will not enable the cestui que trust to establish a lien against the assets of the insolvent estate. Wood-house v. Crandall, supra; Union Nat. Bank v. Goetz, 138 Ill. 127; Mutual Accident Ass’n v. Jacobs, 141 Ill. 261; Estate of Seiter v. Mowe, 182 Ill. 351. Aside from the evidence of Bell there is no possible way of tracing the fund represented by the checks made by appellant. Moreover, it was held in the case of Wetherell v. O’Brien, 140 Ill. 146: “When money, which is delivered to a bank, even though, it be for some specified purpose, as, for instance, investment in a mortgage security, has been mingled with the funds of the bank, as was done here, there is no reason why the depositor should be preferred above any other creditor.” To the.same effect.is the case of Mutual Accident Ass’n v. Jacobs, 141 Ill. 261. In the case of Bayor v. American Trust & Savings Bank, 157 Ill. 62, it was held: “It has frequently been announced as the law of this State, that even in a case where a definite and actual trust fund, which possesses all the attributes of a separate and distinct identity, has been so mixed and mingled with other funds as to render identification impossible, the cestui que trust, in the event of the insolvency of the trustee, is remitted to the position and the rights of a general creditor; and where the relation between the parties is primarily that of debtor and creditor, and there is a mere unperformed agreement on the part of the debtor to create a specific fund which shall possess a separate identity, and to hold the same in trust, it would be illogical and inconsistent with these adjudications to hold that such creditor occupies a stronger position than one who is primarily the beneficiary, of a distinct and identified trust, fund., We regard the cases of Trustees of Schools v. Kirwin, 25 Ill. 73, Otis v. Gross, 96 id. 612, Union Nat. Bank of Chicago v. Goetz, 138 id. 127, Wetherell v. O’Brien, 140 id. 146, and Mutual Accident Ass’n v. Jacobs, 141 id. 261, as conclusive against the contentions urged herein by appellant.”

The report of the special master in chancery shows that he made a very thorough and careful examination of the evidence introduced and we fully concur in his findings on the facts. All the exceptions of appellant to this report were overruled. One exception to the report was filed by appellee and that was to a recommendation in the report in regard to the apportionment of the costs. This recommendation was as follows :

“Mr. Clem and Mr. and Miss Loring appear to the Special Master to be innocent parties in this matter, and each of them has been greatly wronged, and inasmuch as Mr. and Miss Loring had possession of the note in controversy, and Mr. Clem had a reasonable ground to believe that he .could recover on his claim, the Special Master feels that each of them were justified in prosecuting their respective claims to the note, and under the rule which prevails in equity, that the costs do not necessarily follow the event of suit, and that costs may be awarded in the discretion of the Chancellor, the Special Master recommends that the Receiver, out of funds in his hands as such Receiver, pay all the costs incurred beforé the Special Master, that is, that he repay to Harvey B. Clem, his 1-3, and to Mr. and Miss Loring their 1-3 of the total costs in this matter, which amounts have heretofore by these parties been paid to the Special Master.” The court refused to follow this recommendation but ordered that A. M. Loring and Frances M. Loring jointly pay one-half of the costs of the proceedings and that appellant pay one-half thereof. In this the court was clearly right as it would not be equitable to charge the other creditors of the Bank with the costs and expenses caused by this litigation. The court entered a decree directing that the clerk pay $5,314.98, being the amount of the note of the State Line Grain Co., paid into court by it, to the receiver as the assets of said Bank. The decree might have gone further and have declared appellant to be a general creditor of the Bank in the amount of his claim and entitled to share in the assets of the Bank pro rata with the other general creditors. However, this matter can be adjusted by a future order of the court.

The decree of the circuit court is affirmed.

Affirmed.


text:
    Gabriel Pallante, Administrator of the Estate of Rafael Pallante, Deceased, Appellant, v. Illinois Power Company, Appellee.
    Gen. No. 8,591.
    Heard in this court at the October term, 1931.
    Opinion filed February 1, 1932.
    John G. Friedmeyer and A. Morris Williams, for appellant.
    Henry A. Converse, Walter M. Allen and William L. Patton, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

This is an action in case brought by appellant as administrator of the estate of his wife, Rafael Pallante, deceased, against the Illinois Power Company, to recover damages for her death. There are four counts in the declaration, in the first three of which it is charged that the death of Rafael Pallante was caused by wilful and wanton acts of the servants of appellee. In the fourth count it is charged that the servant of appellee negligently and carelessly handled and drove said street car toward and into the intersection of Fourteenth and Monroe streets in the City of Springfield without sounding any warning of his approach to said intersection, at a dangerous rate of speed of to wit: 40 miles per hour and that said servant did not have said street car under such control when he approached said intersection so as not to injure said plaintiff’s decedent, who was then and there in the act of crossing over said tracks of the' defendant while in the exercise of reasonable care for her own safety, etc. The defendant filed the general issue as to all the counts and two special pleas to the first three counts charging wilfulness. In the first' special plea it is averred that said Rafael Pallante had an equal opportunity to observe the approach of said street car from the west, with the opportunity which the-1 operator of said street car had' to observe the approach of said Rafael Pallante to a point where she would be endangered by the operation of said street car and that nevertheless in wilful and intentional and conscious disregard of her duty in that behalf and-with utter disregard of' consequences, the said Rafael Pallante recklessly, wilfully, consciously and with an intentional disregard of her • duty in that behalf, and with a willingness to accept the chance of injury to herself, and to persons who might be-upon the street car of the defendant, intentionally, recklessly, wilfully and consciously either failed to observe the coming of said street car, or having observed the coming of the street car and knowing of its approach- and with a conscious willingness to incur injury to herself ahd to others, in crossing said Monroe street failed to remain in a place of safety where she' would not come into collision with said street car, and at a time when the street car was so near at hand that the operator thereof, with the appliances and means under his control was wholly unable to check the speed of or stop said street car in time to avoid injury to said Rafael Pallante, she, the said Rafael Pallante, wilfully, wantonly, consciously and recklessly left a place of safety upon said street and went in front of and came into collision with said street car. "Wherefore, the said wilful and wanton conduct of said Rafael Pallante as above set forth was a proximate cause of her injury and death. And this the defendant is ready to verify. The second special plea, although worded somewhat differently, is substantially the same in its averments. To these special pleas the plaintiff filed replications in which he denies each and every allegation made in the special pleas and concluded to the contrary. The case went to trial upon these pleadings and at the conclusion of the evidence introduced on behalf of plaintiff, on motion of defendant, the trial court excluded the evidence and directed the jury to render a verdict finding it not guilty. Judgment was rendered on this verdict, to reverse which plaintiff prosecutes this appeal..

The accident happened at the intersection of Monroe and Fourteenth streets in the City of Springfield between 10:30 and 11 o’clock on the morning of September 6, 1930, and on a clear, bright day. Monroe street runs east and west and Fourteenth street north and south. Defendant maintained a double track street car line on Monroe street, the north track being for westbound cars and the south for eastbound cars. Monroe street was perfectly straight and just prior to and at the time of the accident there was no traffic of any kind in the vicinity of the intersection of these streets except the deceased and the street car. Two men-, W. A. Parker and George Price, were standing on the southeast corner of the intersection of Fourteenth and Monroe streets conversing together. Parker testified that he saw Rafael Pallante, plaintiff’s intestate, with whom he was acquainted as a neighbor, just prior to the accident walking east on the north side of Monroe street toward Fourteenth street and about the same time saw a street car also coming east on Monroe street but which was at that time about at Tenth street, a distance of three blocks; that there was no traffic on the street other than the coming car and nothing to prevent “that I know of from her being able to see the car. Wasn’t a thing to distract her attention that I saw.” He further testified that when the deceased arrived at the west side of Fourteenth street she turned south to cross Monroe street and looked both east and west when she got off the curbing and at that time the street car was about a block away and in plain sight with nothing in the street to distract her attention therefrom and nothing to divert her mind from the speed of the rapidly approaching car or to deceive her as to its speed which he estimated at 35 miles per hour; that the deceased started south across Monroe street walking faster than she had walked before; “She was walking a little rapidly when.she came to Fourteenth street, and was still hurrying when she stepped off the curb and increased her speed as she came to the eastbound tracks.” This witness further stated that when she started across the south or eastbound tracks the street car was half a block or 160 feet away from her. Of course it is apparent that the witness’ estimate of the distance of the car from the place of accident at that time was a physical impossibility as the car would have had to run at a rate of speed of over 100 miles per hour to have hit her while she was traveling the five feet necessary to cross the tracks. If the car had in fact been running at a rate of speed of 35 miles per hour then when she attempted to cross the tracks in front of it, it would have been 50 feet from her.

The witness Price in substance testified: “The woman seemed to be hurrying. I would say that she had passed the westbound track before I saw her, and was practically in front of the street car. I hadn’t noticed the street car before that. Wasn’t paying any attention to it, but saw both before she was struck. I noticed the street car before she was struck. I think it was about 12 feet or something like that. I could see the accident was imminent. Something was bound to happen. I would judge the street car was running 18 to 20 miles per hour. ’ ’ Price had been a street car conductor and had some experience in judging speed of street cars. If his estimate of the speed was correct then the car was only 40 feet from the deceased when she attempted to pass in front of it.

But one conclusion can be deduced from this evidence, viz.: that when the deceased started to cross the street she looked both east and west and as there was no obstruction whatever to her view she must necessarily have seen the approaching car, and that she hurried to cross the tracks in front of it. The motorman had as much right to presume that she would stop and let the car pass as she had a right to presume that the car would stop and let her pass or that by hurrying she could successfully pass in front of the car without being struck thereby. Each had equal facilities of seeing the position of the other. Before the deceased attempted to pass over the tracks in front of the approaching car she was in a zone of safety and the motorman had a right to assume that she would stop and allow his car to pass. Morgan v. Rockford, B. & J. Ry. Co., 251 Ill. App. 127; Chicago, R. I. & P. R. Co. v. Austin, 69 Ill. 426; Chicago, B. & Q. Ry. Co. v. Sack, 129 Ill. App. 58; Casey v. Chicago & E.I.R. Co., 152 Ill. App. 441; Storm v. Cleveland, C., C. & St. L. R. Co., 156 Ill. App. 88. In the case of Newell v. Cleveland, C., C. & St. L. R. Co., 261 Ill. 505, it was held: “Where a railroad train and a person traveling on the highway each approaches a railroad crossing at the same time, it is not the duty of the company to stop its train, but it is the duty of the traveler, in obedience to the known custom of the country, to stop and not attempt to pass in front of the advancing train.”

There is nothing in the evidence in this case tending to show that the motorman could have done anything to have prevented the injury after the deceased had placed herself in a position of peril. It is perfectly clear that the deceased saw the car approaching within a short distance of the crossing and through mistaken judgment thought she could safely pass over the tracks before the car reached the crossing which unfortunately was not the case and under such circumstances there can be no recovery.

The judgment of the circuit court is affirmed.

Affirmed.


text:
    Faye Neer and Pearl Neer, Trading as The Home Oil Company, Appellant, v. Emma Coats et al., Appellees.
    Gen. No. 8,594.
    Heard in this court at the October term, 1931.
    Opinion filed February 1, 1932.

      Harry J. Buxbaum, for appellant.
    John J. Arney, S. M. Scholfield, Harry Partlow and C. M. Purdunn, for appellees.
   Mr. Justice Eldredge

delivered the opinion of the court.

Faye Neer and Pearl Neer, doing business under the' firm name of The Home Oil Company, filed their bill of complaint praying for an injunction against Emma Coats from purchasing gasoline and oil from one Middleton and to restrain said Middleton from selling and delivering to said Emma Coats gasoline and oil in violation of a written contract entered into by Emma Coats and The Home Oil Company executed June 6, 1931. The contract provides that in consideration of the covenants and agreements of The Home Oil Company, party of the second part, thereinafter set forth, Emma Coats, party of the first part, agrees that said party of the second part shall be the sole and only source of supply for gasoline, kerosene, lubricants and petroleum products sold through her place of business on certain premises situated in Clark county for the period of June 6, 1931 to June 6, 1932. The first party covenants that during the term of said lease she will pay certain taxes to be levied or assessed against said premises for property owned by her located thereon and will also pay all license fees and other taxes, impositions and charges levied against or imposed upon the business conducted upon the demised premises or the equipment located thereon and shall also furnish without expense to the second party heat for the demised premises and will pay for all electricity consumed thereon; that first party agrees that at the expiration of the lease said second party shall have and is given the right at any time within 30 days thereafter to enter upon and remove from said premises any equipment by it at any time placed thereon; that second party agrees to sell and deliver by and through its tank wagons or trucks, and the first party agrees to purchase and receive, said products at her place of business and agrees to pay for the same at the prevailing tank wagon market of the seller at Casey, Illinois on the date of delivery. The contract provides for certain discounts on the products purchased and the brand of the products delivered. The contract then provides that second party agrees to furnish the following equipment: two 10-gallon visible pumps, two underground tanks, one kerosene outfit, oil drums and pumps as needed; that second party agrees to pay first party as rent the sum of 1 to 1%^ per gallon for this gasoline sold under the contract and that first party leases to second party all of the premises together with all equipment located on or connected with the property for the period from June 6, 1931 to June 6, 1932, said rent being payable monthly within 10 days after the expiration of each month; that first party expressly covenants and warrants that she has not leased the above described premises to any other person or oil company for any part of the term covered by the lease and that no assignment by the first party shall be valid without the written consent of the second party. The contract then concludes with the following clause: “This contract shall not be in force until approved by an officer of the company at its home office at Robinson, Illinois.” The contract is signed “Home Oil Co. Albert F. Neer, Mrs. C. W. Coats.”

The bill alleges that the defendant Thomas Coats is a stepson of Emma Coats and is employed by her to have charge of said gasoline pumps and building and to sell gasoline therefrom and also kerosene, lubricants and other petroleum products distributed from said premises, and that he was so acting on June 6, 1931 and is still acting in that capacity at said place vending and selling said products for the said Emma Coats; that complainants on.June 6, 1931, and for a long time prior thereto were in possession of certain metal and visible gasoline pumps which were situated just south of said building on Lot No. 5, Block 11, Original Town of Cumberland which premises then were and now are owned by said Emma Coats; that complainants had on the 6th day of June, 1931, and still have a written lease for. the use of said pumps with full right from the Lincoln Oil Refining Co. to'use the same or sublet the use of the same to the same to the said Emma Coats; that on June 6, 1931, or shortly thereafter said Middleton and said Thomas Coats in confederation falsely induced Emma Coats to enter into a lease or other contract the nature, extent or quality of which is unknown, leasing the aforesaid premises, pumps and other equipmént to said Middleton operating as The Middleton Oil Co.; and that said Emma Coats in violation of her said contract and lease with complainants to furnish and supply to the said Emma Coats all of her gasoline, kerosene, lubricants and 'other petroleum products to be sold and distributed from said premises, and said Middleton under the firm name of Middleton Oil Company'has continued to furnish and supply the said Emma Coats at the place aforesaid all the gasoline, kerosene, lubricants and other petroleum products used, sold or delivered in the aforesaid place in violation of complainant’s said contract and lease. The defendants to the bill filed a joint and several answer in which they admit the contract as set out in the bill but deny that it is a.valid and subsisting contract between the parties' on the ground that Emma Coats was led to sign it- only upon the condition that her stepson would join in the contract. They deny that Thomas A. Coats is a clerk óf Emma Coats but aver that he has a lease on the premises which was in existence on or before June 6 and is still a valid and binding lease.

Faye Neer, one of the complainants, testified in regard to the execution of the contract or lease and offered the same in evidence. To the introduction of the contract or lease the defendants objected on the ground that it hadn’t been approved by the home office at Robinson, Illinois. The court,sustained the objection and refused to admit the contract or lease in evidence. Thereupon counsel for the defendants moved that the bill be dismissed for want of equity which motion the court sustained and dismissed the bill.

In this the court was clearly in error. The evidence shows that the contract was made out on a printed form and was evidently one in use by some other concern as the complainants were partners and had no officers and did not have a home office at Robinson, Illinois, and this, clause should have been stricken out before the contract was executed. However that may be, if this clause is to be considered a part of the contract, it is wholly for the benefit of the complainants and could be waived or ratified at their pleasure and could not be taken advantage of by the defendants to the bill. The decree of the court dismissing the bill is reversed and the cause remanded with directions to hear the proofs and enter a decree in conformity therewith.

Reversed and remanded with directions.