author: Mr. Justice Burke

text:
    People of the State of Illinois, Defendant in Error, v. Peter C. Mangos, Plaintiff in Error.
    Gen. No. 41,221.
    Opinion filed June 19, 1940.
    Rehearing denied September 10, 1940.
    Peter D. Caloger, of Chicago, for plaintiff in error; John P. Klein, of Chicago, of counsel.

      Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Blair L. Varnes, Assistant State’s Attorneys, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On August 9,1939, in the municipal court of Chicago, defendant pleaded not guilty to an information charging him with having unlawfully and wilfully made, uttered and drawn a check for the payment of $200, without having credits in the bank for the payment thereof. The cause was submitted to the court without a jury. On that day the court entered the following order: “The court finds the defendant guilty in manner and form as charged in the information herein. Wherefore it is ordered that the same be entered of record herein. ’ ’ At that time no judgment was entered on the finding. Defendant filed an application to be placed on probation. The court allowed the request and placed defendant on probation for a period of one year. As a condition thereof the court ordered the defendant to make restitution to the victim in the sum of $200. On the same day the defendant moved to vacate the judgment. The court set the hearing on the motion for August 16, 1939. The motion was continued from time to time and was not heard until October 11, 1939. On that day the court entered an order which reads: “Motion to vacate judgment sustained. New trial granted. Defendant discharged.” On October 27, 1939, the record shows: ‘ ‘ Motion state to expunge orders of October 11, 1939, sustained. Order of court postponed and set for trial October 31,1939. ’ ’ On October 31,1939, the following order was entered: “Now come the people by the State’s Attorney and the defendant as well in his own proper person as by counsel also comes, and thereupon this cause comes on for hearing on motion of the defendant heretofore entered herein to vacate the judgment of August 9, 1939, and the court being fully advised in the premises, overrules said motion.” The record shows that on October 31, 1939, defendant again made application to be placed on probation. The court granted the request and allowed the defendant to be released on an individual recognizance. The recognizance which the defendant signed, and which he acknowledged before the presiding judge, recites that ‘ The condition of this recognizance is such that whereas, the above bounden, Peter O. Mangos, has been found guilty in the Municipal Court of Chicago on a charge of cheat to defraud.” On December 18,1939, a probation officer filed an application for a warrant against the defendant based on the statement that he had violated the terms under which he was placed on probation. A warrant was issued and he was apprehended. He was again released on an individual recognizance, pending a hearing on the charge that he had violated probation. On January 31, 1940, the court found that the defendant had violated his probation, and also entered judgment on the original finding that defendant was guilty of the offense charged in the information. Accordingly, the court sentenced him to serve a term of four months in the house of correction. The record comes to us following the issuance of a writ of error. The assignment of errors specifies (1) that the trial court erred in entering the order of October 27, 1939, and also the order of October 31, 1939, after having entered a final order on October 11, 1939, discharging the defendant, thereby divesting itself of jurisdiction over the defendant and of the subject matter; (2) that all orders entered after the order of October 11, 1939, discharging the defendant, are illegal and void and of no effect, because such orders were entered by the trial court after it had lost jurisdiction of the defendant and of the subject matter; and (3) that the defendant was twice placed in jeopardy in violation of section 10 of Article 11 of the Constitution of the State of Hlinois.

In their briefs both the People and the defendant indulge in references to occurrences and statements not supported by the record. The proceedings were quite informal. Under the Probation Act (par. 785, ch. 38, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 37.772]), a person who has entered a plea of guilty, or who has been found guilty by the verdict of a jury or by the -finding of the court, may in certain cases be placed on probation after the entry of judgment and when nothing remains to be done by the court except to pronounce sentence. When the defendant was found guilty, no judgment was entered. At that time, however, on his application, he was placed on probation. The record shows that he then moved to vacate the judgment. The People and the defendant in the trial court, and here, treated the finding of guilty as the judgment of the court, and no point has at any time been made that the court did not enter judgment on the finding. On October 11, 1939, the court allowed defendant’s motion to vacate the judgment, granted a new trial and discharged him. When the judgment was vacated the cause stood in the same position as before the trial. The court granted a new trial. The record does not disclose that there was a new trial. It does show that the defendant was discharged. We assume that this means he was discharged from custody. The record does not show that the defendant was again placed on trial, nor does it show what the finding or the judgment of the court was. The effect of the order of October 11, 1939, so far as the record discloses, was to vacate the finding of guilty (which the parties treated as a judgment) and to grant a new trial. As the record does not show that there was another trial, the effect of the order was to leave the case still pending without the defendant being in custody. On October 27, 1939, on motion of the People, the court expunged the orders of October 11,1939, and on October 31,1939, the court overruled defendant’s motion to vacate the judgment of August 9,1939. Defendant now contends that the court having entered a final order on October 11A1939, discharging the defendant, was without jurisdiction to enter subsequent orders. In our opinion this contention is without merit. As we have indicated, the record shows that the defendant was ' ' granted a new trial, but does not show he was again placed on trial. Insofar as the record shows, the cause was still pending and within the control of the court. Therefore, the court had jurisdiction to enter the order expunging the order of October 11, 1939, leaving the defendant’s motion to vacate the judgment, undisposed of. The court overruled the motion to vacate on October 31,1939. The record is barren of any showing as to the basis on which defendant sought to vacate the judgment. The record is also silent as to the reason why the court expunged the order of October 11, 1939. It is manifest, however, that the defendant recognized the propriety of the action of the court as he again made application to be placed on probation. The court granted his application and he was released on an individual recognizance. The recognizance so executed by the defendant acknowledged that he had been found guilty as charged. When on January 31, 1940, the court found the defendant guilty of violating the terms of his probation, the court then, for the first time, entered an appropriate judgment order, based on the finding of guilty, and sentenced him to serve a term of four months in the house of correction. The defendant does not allege any point as to the action of the court in sentencing him, except that of jurisdiction, and that he was twice placed in jeopardy, and insists that all the orders entered after the order of October 11, 1939, are illegal and void. Our view is that the record does not show that the order of October 11,1939, disposed of the case, and that, therefore, the case was still pending at the time the court entered the subsequent orders.

Finally, the defendant maintains that after he was discharged by the order of October 11, 1939, the effect of vacating that order, overruling his motion to vacate, and later sentencing him for violation of probation, was to again place him in jeopardy for the same offense. The defendant made the motion to vacate and as he was not again placed on trial, he was not in jeopardy a second time. The action of defendant in petitioning the court to place him on probation after the order of October 11, 1939, had been expunged, was a recognition by the defendant, while the matter was before the court, of the regularity of the proceedings. The record shows that at all relevant times defendant was present in his own proper person and by counsel. To permit him now to take a position entirely at variance with the position he took before the trial court would be to allow him to play fast and loose with the court. He was given every consideration, was represented by counsel, and all his rights were protected and respected.

For the reasons stated, the finding and judgment of the municipal court of Chicago should be and it is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Mr. Justice Hebel Mr. Justice Burke,

license: Public Domain

text:
    Phyllis Beckett, Appellee, v. F. W. Woolworth Co., Appellant.
    Gen. No. 41,009.

      Burke, J., dissenting.
    Opinion filed June 19, 1940.
    Rehearing denied September 10, 1940.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellant; William H. Symmes, David Jacker and Charles M. Bush, all of Chicago, of counsel.
    Murphy O. Tate and Oscar Jordan, both of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an action for damages for an eye injury which the plaintiff claims was caused by poisonous and harmful substances contained in a tube of “Pinaud’s Six-Twelve Creamy Mascara, ’ ’ purchased by her from the retailer, F. W. Woolworth Company, the defendant. The manufacturer of the article is not a party to this action. The cause was submitted to a jury who rendered a verdict in favor of plaintiff and assessed the damages at $11,250.

At the close of the plaintiff’s case and at the close of all the evidence, the defendant filed motions for directed verdicts; both motions were denied. After the verdict, defendant filed a motion for judgment notwithstanding the verdict, and a motion for a new trial. The motion for judgment notwithstanding the verdict was denied and the court ordered that the plaintiff file a remittitur of $5,250 within 20 days or the defendant’s motion for a new trial would be granted. The plaintiff then remitted $5,250 from the verdict. The defendant renewed its motion for a new trial and moved in arrest of judgment on the verdict as remitted, both of which motions were denied, and the court thereupon entered judgment against the defendant for $6,000.

The complaint bases the liability of the defendant on the theory of' a breach of warranty. The defendant filed an amendment to its answer setting forth that the sale of “Pinaud’s Six-Twelve Creamy Mascara” was a sale under a trade name, presenting the defense that there is no implied warranty by a retailer in the sale of an article under a trade name.

The cause was submitted to the jury upon instructions and upon consideration the verdict as suggested was rendered.

The facts as they appear from the statements of the parties in this action are that the plaintiff is a single woman, 35 years of age, and has been in the millinery business for 16 years. The defendant is a corporation which maintains a chain of “five and ten cent stores.” “Pinaud’s Six-Twelve Creamy Mascara” is a preparation to be used by women for the purpose of beautifying the eyelashes. It is made up of the following ingredients ; oil, fat, water, lamp black and soap. This mascara is sold in tubes which are attached to small cards along with little brushes for applying it. The card, tube and brush are made by Pinaud, Inc., of New York City. The tube of mascara is prepared by a machine which automatically mixes, fills and seals the tube. These are shipped to retailers in boxes containing one dozen. In 1937,1,500,000 tubes were sold in various chain stores. The chief chemist of Pinaud testified that they had one other claim that “Pinaud’s Six-Twelve Creamy Mascara” caused injury to the eye, and there also was one witness for plaintiff who testified that by reason of a certain odor given off in a test, he believed that the mascara contained an aniline dye.

It also appears that plaintiff had been using “Pinaud’s Six-Twelve Creamy Mascara” for some time and had been purchasing it from defendant for 8 years and that she never had any trouble in applying it before.

The plaintiff testified that on Friday, September 3, 1937, she entered one of defendant’s stores and had a cup of coffee and then stopped at the cosmetic counter and picked up a tube of “Pinaud’s Six-Twelve Creamy Mascara” by its trade name. She testified that she had some conversation with the clerk regarding the mascara; that she picked the card up and told the clerk that she would take it with her. At that time she said to the clerk “this mascara is safe isn’t it?” and that the clerk replied, “It is on the tube — it says harmless, ’’ and that plaintiff said, “I’ll take it,” and then she bought it.

Plaintiff testified that she had bought this mascara before but that she had never had any trouble with it, but that she never got any of it in her eye. She took the mascara home in a bag. She used it next evening, which was Saturday, putting it on her eyelashes at about 11:00 P.M. as she was preparing to go out. She testified that as she was applying it to the lashes of her right eye some of the mascara fell into the eye. The eye itched and smarted and she tried to remove it by rolling the eye around, but did not use any object like a handkerchief to get the mascara out.

The next day the right eye became swollen and she called in Dr. Wise who gave her an eye wash. About Wednesday she went to the Illinois Eye and Ear Infirmary where she remained about four days. She then went to her sister’s home, where her sister’s husband, Mr. Oscar Jordan, one of the attorneys representing her in this case, called in Dr. Maurice Snitman. Dr. Snitman ordered the plaintiff to the North Shore Hospital where Dr. Snitman called Dr. Coles. Dr. Coles operated on plaintiff’s right eye on or about September 22,1937. Dr. Coles diagnosed plaintiff’s infection as a serpiginous ulcer, which is a type of perforating ulcer. A serpiginous ulcer derives its name from its serpentine shape, and it is the name usually reserved for infection by the pneumococcus germ. A few days after the operation the plaintiff had some trouble with the left eye, resulting in little blisters on the cornea of her left eye.

On September 20, Dr. Snitman made a smear from the plaintiff’s eye and examined it under a microscope, finding some staphylococci. About a week later he got the tube from Miss Beckett and took it to the hospital technician. At this time the tube was broken. A smear was made on September 29, which revealed bacteria, which the technician testified, over objections, were “about staphylococcus, germs of negligible-bacilli.”

Miss Beckett testified that after using the mascara on the night of September 4,1937, she screwed the cap back on the tube and placed it in her drawer. There is some conflict in the evidence as to the way the tube reached the hospital and Dr. Snitman. Plaintiff stated that she carried it to the hospital in her purse. However, she-admitted that she testified in her discovery deposition that the last time she 'saw the tube was in the hospital and that she did not remember who brought it there.

It appears from the testimony of the plaintiff that before the accident in 1937 her general condition and health was perfect and her eyes were perfect, that she had been engaged for 16 years in the millinery business and at the time of the accident she was 35 years of age, and that she wore glasses only for close sewing. She is an unmarried woman who lived at home with her parents.

As to the damages to her eye her testimony was that she does not have any sight in the right eye. She says that she can see light from dark but cannot see an object and cannot read a letter; that the only thing she can distinguish is dark from light.

On her cross-examination she testified that she applied the mascara with brush near the eyelashes and in the proper manner, and that she did not at any time during the operation apply her hand or finger to her eye. As we have already indicated, after the application to one eye the itching sensation commenced and after 2 hours the sensation was sufficiently great that she felt it necessary to call a physician.

There is some evidence that the boric acid which she adapted as a harmless first aid remedy was a fresh solution which she purchased in crystal form from a local drug store and made up the solution in boiling water.

It would appear that a Dr. McNally, a chemist and toxicologist connected with Eush Medical College, as well as with the Cook County Health Department, received the vial, and as the result of his analysis found an amine and phenolytic aniline base present. He described the test fully and the manner in which-he made it and stated his conclusion that ‘ Toxicologically speaking, it is a poisonous substance.”

The defendant contends and again calls the court’s attention to the fact that the manufacturer of the product complained of was not a party to this suit and that the only defendant is the retailer. From the evidence it appears that “Pinaud’s Six-Twelve Creamy Mascara” was prepared entirely by the manufacturer in New York. The card with the brush and tube attached were shipped and sold in the original package just as received from the manufacturer.

The plaintiff calls attention to the defendant’s brief that cases are cited in support of defendant’s contention that under the statute law of this State (sec. 15, par. (4), ch. 121½, Ill. Rev. Stat., 1939 [Jones Ill. Stats. Ann. 121.19]) the plaintiff cannot recover for damages sustained by the use of an article sold under a trade name in the original package, because there is no implied warranty as to fitness for any particular purpose; and directs attention to this section of the statute and in reply states that the plaintiff’s theory is that recovery should be had entirely under an express warranty and not under an implied warranty, and that the express warranty was proven to have been breached to the satisfaction of the court and jury.

The defendant replies in its brief and states that the theory of the plaintiff, in plaintiff’s brief, for recovery in the trial court was ‘ ‘ entirely on an express warranty ’ ’ and that this was undoubtedly the theory upon which the case went to the jury and that the defendant feels that the case should be considered solely on this theory on appeal.

It appears that both parties are agreeable that the case be decided only on the theory of an express warranty, and, in the discussion of the question involved, we will consider the case as being based — as suggested by the parties — on an express warranty, which was breached to the damage of the plaintiff.

The plaintiff contends that there are two types of evidence in this case tending to show that the tube of mascara claimed to have caused the injury was purchased from the defendant by the plaintiff upon an express warranty from the defendant that the mascara in question was runproof and harmless, and points to the evidence that from the printed card it tends to show an express warranty of ‘‘Runproof-Harmless”; and that further it appears from the testimony of the plaintiff that there was a verbal express warranty, that is to say, the saleslady who sold the plaintiff the mascara told her, in effect, that the tube of mascara would be safe and harmless and fit for use for the purpose for which plaintiff purchased it; and further contends that the preponderance of the medical evidence and chemical analysis sustains the plaintiff’s contention that the mascara was not runproof or harmless, as expressly warranted by the defendant, but was in fact infested with germs dangerous to the human eye; and further contends that the evidence shows that plaintiff lost the sight of her right eye by reason of using the mascara.

The evidence of the defendant seems to controvert the evidence offered by the plaintiff. This being a question of fact, it was for the jury tq consider from all the evidence and under the proper instructions of the court the theory of the parties as presented by their instructions to the court.

When we come to consider the law applicable to the facts, in the cases that are called to our attention we find in the case of MacAndrews & Forbes Co. v. Mechanical Mfg. Co., 367 Ill. 288, that the court in its opinion has expressed the views that would apply to this particular case on certain of the questions of law that seem to be controverted. The court in this case, which was a suit by the plaintiff to recover damages because of a breach of an express warranty in the contract that a machine known as the Stutzke Patent Spray Dryer which was to be furnished by the defendant would be fit for the purpose for which it' was intended, the plaintiff in its allegations alleging that the machine failed to do the work for which it was intended, in passing upon the facts as appeared in the record, said:

“No particular words or forms of expression are necessary to create an express warranty. A positive assertion of a matter of fact made by the seller at the time of a sale, for the purpose of assuring the buyer of the fact and inducing him to make the purchase, which assertion is relied on by the purchaser, constitutes a warranty. (VanHorn v. Stautz, 297 Ill. 530; Robinson v. Harvey, 82 id. 58; Thorne v. McVeagh, 75 id. 81; Wheeler v. Reed, 36 id. 81.) Whether there was an express warranty is to be determined from the intent of the parties as shown by expressions or words used in the contract and the meaning to be given to them. If the intent was to create a definite contract of warranty as to a certain quality of the article sold, such is an express warranty though the contract may not have used the words ‘express warranty’ or either of them. The intention of the parties is to be determined from the language employed, when read in the light of the context of the instrument and such surrounding circumstances as will aid the court, in arriving at the true meaning of the parties. (Geithman v. Eichler, 265 Ill. 579; Goodwillie Co. v. Commonwealth Electric Co. 241 id. 42; Druecker v. McLaughlin, 235 id. 367.) ”

And when we consider the authorities submitted to this court, we find that in the case of VanHorn v. Stautz, 297 Ill. 530, where the court has announced the rule that was adopted by our Supreme Court in the case which we have just quoted, which was an action by the plaintiff to recover from the defendant in an action of assumpsit damage: that occurred by reason of the breach of an express warranty in the sale of hogs by defendant to the plaintiff that the hogs were sound, that the court in the case said:

“Counsel for the defendant in error contend that the question whether what was said by Hollis to the defendant in error prior to and at the time of the sale amounted to a warranty was one of law for the court to decide and not a question of fact to be passed upon by the jury; but the cases cited decide that where the affirmations relied upon to constitute a warranty are oral, it is the province of the jury to determine from all the circumstances whether they amount to an express warranty. It was so decided in the case of Shippen v. Bowen, 122 U. S. 576, the court quoting from the opinion of the court of appeals of Maryland in Osgood v. Lewis, 2 Harr. & C. 495: ‘An affirmation of the quality or condition of the thing sold, not uttered as matter of opinion or belief, made by the seller at the time of sale for the purpose of assuring the buyer of the truth of the facts affirmed and inducing him to make the purchase, if so received and relied on by the purchaser, is an express warranty; and in case of oral contracts, on the existence of these necessary ingredients to such a warranty it is the province of the jury to decide, upon considering all the circumstances attending the transaction.’ Other authorities were cited to the same effect, including Hawkins v. Berry, supra. In Hobart v. Young, 63 Vt. 363, it is said: ‘In cases of oral contracts it is the province of the jury to decide, in view of all the circumstances attending the transaction, whether such a warranty exists or not. . . . ’ ”

So that, when we consider the facts in this case,- as has been stated in this opinion, it would seem that under all the circumstances the facts were questions for the jury to pass upon and determine from these facts whether there was an express warranty as contended for by plaintiff. It appears from the evidence in this record that by the purchase of the mascara from the defendant and its use, the plaintiff was injured so that she has lost the sight of the right eye by its use, and there is evidence that the mascara which was purchased was analyzed by Dr. McNally, who testified that as a result of his analysis he found “an amine and phenolytic aniline base present.” He described the test he made and the manner in which he made it and then stated as his conclusion that “toxicologically speaking, it is a poisonous substance. ’ ’ It was necessary for a jury to pass upon all of these questions which were presented, both as to questions relating to the express warranty as well as to the conditions relating to the conditions which were found from an examination of the injured eye after the use of the mascara, and also as to the evidence of the doctors as to what was found in the mascara by analysis.

The subject matter in the instant case is as to whether there is an express warranty which carries with it the rule that, if the mascara was in a sealed container, the defendant will be considered as a warrantor tif the article that was sold to the plaintiff under the express warranty. That means, of course, that the mascara would be sound, wholesome and free from all defects that might injure the plaintiff. It is to be noted that the evidence indicates that there was a card, as well as the container in which the mascara was contained, which indicated that it was runproof as well as harmless; and harmless means, of course, that it would not subject the user to injury.

If we apply the rule that seems to have been approved of by the courts that, where there is an express warranty, this warranty means that the mascara contained in the tube is sound, and fit for use. However, there may be and there is in this case a suggestion that the adoption of such a rule is a harsh one, but, when we come to consider the facts as they appear, it is much safer to hold that the vendor is liable than it would be to compel the purchaser to assume the risk, which would mean, as in this instant case, that the plaintiff is without remedy for the loss of the sight in the right eye.

There are a number of cases in this State where the rule that we have suggested has been adopted. In the case of Sloan v. F. W. Woolworth Co., 193 Ill. App. 620, which was an action for damages for an unwholesome can of herring labeled “Nord Star Brand, fresh fat Herrings in Tomatoes, Strohmery and Art Company, N. Y., net contents five oz. Packed at Stavanger Norway,” wherein it was alleged in the first connt that defendant sold to plaintiff in violation of its statutory duty a tin of herring, which was corrupt and unwholesome and the flesh thereof diseased, of which fact the plaintiff was ignorant; the second count avers that section 6 of the Pure Food Act of 1907 was violated, and the fifth and sixth counts allege that defendant falsely warranted the herring to be good, sound, healthy and fit for food, and the seventh count charges negligence. The court in that opinion said:

“While that is the rule in some jurisdictions, the courts of Illinois appear to have held the contrary to be the rule in this State. In Wiedeman v. Keller, 171 Ill. 93, the opinion states: ‘Whether a retail dealer in meats and provisions for consumption is to be regarded as a warrantor that the goods he sells for immediate consumption are sound, wholesome, and free from all defeets that may injure the health of the purchaser, or whether the vendor is relieved of responsibility where he has no knowledge of the defective character of the articles sold, and has used reasonable and ordinary care to guard against the selection or purchase of defective or unwholesome articles for sale to his customers . . .’ is a question ‘not free from difficulty, and one upon which text-writers and courts are not harmonious . . ’ and concludes: ‘In an ordinary sale of goods the rule of caveat emptor applies, unless the purchaser exacts of the vendor a warranty. Where, however, articles of food are purchased from a retail dealer for immediate consumption, the consequences resulting from the purchase of an unsound article may be so serious and may prove so disastrous to the health and life of the consumer that public safety demands that there should be an implied warranty on the part of the vendor that the article sold is sound and fit for the use for which it was purchased. It may be said that the rule is a harsh one; but, as a general rule, in the sale of provisions the vendor has so many more facilities for ascertaining the soundness or unsoundness of the article offered for sale than are possessed by the purchaser, that it is much safer to hold the vendor liable than it would be to compel the purchaser to assume the risk. . .

So, in the instant case, the vendor, by permitting the sale of the article in question with the warranty on the container in which the mascara was enclosed as well as the card that is in evidence containing the same warranty, assumed a responsibility when the mascara was sold to the plaintiff that it was harmless for the use that it was intended. While it is true that in the case which we have cited, the court held that the liability was on an implied warranty, still, as in this case where the facts are predicated on an express warranty the same rule, in effect, would apply, and we are of the opinion that this assumption of risk was established by the proof in this record, which justified the court in instructing the jury and submitting the case to it for its verdict.

There are several cases that have been called to our attention by the parties upon the question as to whether a vendor or shop keeper is liable for any damages which may result from the sale of an article contained in a can or sealed container, but, in view of the authorities which we have in our State, we believe that they are sufficient for the purpose, and applicable as we have stated them in this opinion.

The defendant complains of an instruction which was given by the court as follows: “The court instructs the jury that the warranty claimed by the plaintiff in this case is the alleged warranty that the mascara in question was runproof ’ and ‘ harmless ’. ’ ’ and further says that the instruction is objectionable in that it might well tend to make the jury believe that the warranty of “runproof” and “harmless” was the warranty of the defendant, and that the main question in the case is whether or not “runproof” and “harmless” is a warranty by the defendant, and this element is ignored by the instruction.

Plaintiff’s answer to this contention is that the plaintiff is unable to conceive of any other way in which the court could have instructed the jury on the plaintiff’s theory of an express warranty that the mascara was “runproof” and “harmless,” and that when the language of the instruction — ‘ ‘ claimed by the plaintiff ’ ’ — and—“alleged”—is noted, it is obvious that the instruction was given in the only proper form in which it could have been given; and further points to the fact that the defendant complains because the court did not give its instruction which read as follows: “You are instructed that there was no express warranty made by the defendant to the plaintiff in the sale of the tube of Pinaud’s Six-Twelve Creamy Mascara in question. ’ ’ It is said by plaintiff that the court might as well have directed a verdict for the defendant as to give this instruction; that by the giving of this instruction the court would have instructed the jury to find that there was no express warranty from the defendant, and the giving of that instruction by the court would have made it impossible for the jury to bring in a verdict of guilty and fix damages for the plaintiff unless it ignored the court’s instruction.

However, from the suggestions as we have them, we are of the opinion that the court did not err in giving the instruction for the plaintiff and that the court speaks of the claimed warranty and also as an alleged warranty.

There are several questions which have been' called to our attention, and especially that the verdict in favor of the plaintiff is against the manifest weight of the evidence. We have discussed the facts as they appear in the record and from the conclusion which we have reached on these several questions, we believe that they were established and that the verdict which was returned by the jury is not a verdict which is against the manifest weight of the evidence, and we are of the opinion that the judgment entered after the remittitur was agreed upon is not excessive for the injury sustained by the plaintiff.

For the reasons that we have stated in the opinion, the judgment of the trial court should be affirmed.

Judgment affirmed.

Denis E¡. Sullivan, P. J., concurs.

Mr. Justice Burke,

dissenting:

Plaintiff grounds her action on an express warranty by defendant that the mascara was runproof and harmless. She had been using “ Pinaud’s Six-Twelve Creamy Mascara” for 10 or 12 years, and had purchased it from defendant for 8 years. She had never had any difficulty in applying it before. The card and the tube show clearly that the mascara is manufactured and put into the tubes by Pinaud. She knew that the defendant was acting only as a retailer. She went to the cosmetic section of the store. There were four different kinds of mascara on the counter, namely, Maybelline, Pinaud’s, Chaubin’s and Tattoo. The Pinaud mascara is known as ‘Six-Twelve Creamy Mascara,” which is the trade name. Plaintiff picked up a card of Pinaud’s Mascara, handed it to the sales girl, said she would take it, and handed the sales girl a dime. The sales girl put it in a paper bag. She laughed and joked with the sales girl. She testified that she said to the sales girl, “This Mascara is safe, isn’t it,” and she (the sales girl) said, “It is on the tube, it says harmless, ’ ’ and plaintiff said, ‘ ‘ I will take it, ’ ’ and she bought it. Defendant points out that the purchase was made before the conversation took place. Assuming, however, that the conversation and the purchase took place concurrently, the inquiry “This Mascara is safe, isn’t it,” and the answer of the sales girl, “It is on the tube, it says harmless, ” does not establish that there was any express warranty by defendant. In considering that testimony, it should be borne in mind that plaintiff knew the sales girl and had purchased this brand of Mascara regularly for 10 or 12 years. The statement of the sales girl could only mean a reiteration by her of what was on the tube, and from such statement no inference may be drawn that she intended to warrant, in behalf of defendant, that the contents of the tube were harmless. Section 12, ch. 121½, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 121.16] (Uniform Sales Act) provides that “any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller’s opinion only shall be construed as a warranty. ’ ’ This section requires (1) An affirmation of fact or promise relating to the goods; (2) Made by the seller; (3) With a tendency to induce the buyer to purchase the goods, and (4) If the buyer purchases the goods relying thereon. This mascara is a widely known and advertised brand. The cards are shipped to the retailers in boxes containing one dozen cards. The tubes are prepared by a machine which automatically mixes the mascara, fills and seals the tubes. At no point in this process is the mascara touched by human hands. In 1937, 1,500,000 tubes were sold in various chain stores. It is difficult to understand how the plaintiff can claim that the presence of the words “Runproof” and “Harmless” on a small card, purporting to be that of the manufacturers, can be considered a warranty by the seller. No customer of a retailer could reasonably believe that the retailer had any connection with those words whatsoever. Undoubtedly, a retailer may make a warranty as to commodities manufactured and put up by others. Such warranty requires some act or acts on the part of the retailer to show an intention to offer his own individual warranty in addition to that of the manufacturer. It is a matter of common knowledge that a large percentage of the merchandise sold in retail stores consists of advertised brands, such as the mascara here in question, which commodities are manufactured and put up in places usually distant from the retail stores where they are sold, and which commodities are undoubtedly purchased from the retail stores on the bases of the advertising campaigns conducted by the manufacturers. As the foundation of this case is an alleged express warranty by defendants, and the uncontradicted evidence does not, as a matter of law, show an express warranty, it was the duty of the court to enter a judgment for the defendant and against the plaintiffs non obstante veredicto.


author: Mr. Justice Hebel Mr. Justice Burke

text:
    Drusilla N. Pierce, Appellant, v. Jay Fred Reeve, Appellee.
    Gen. No. 41,104.
    Burke, J., dissenting.
    Opinion filed June 19, 1940.
    Rehearing denied September 10, 1940.

      Donald A. Bissell and Bissell & Bissell, all of Chicago, for appellant; Clyde C. Fisher, of Chicago, of counsel.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellee; Howard Ellis, J. B. Martineau and John M. O’Connor, Jr., all of Chicago, of counsel:
   Mr. Justice Hebel

delivered the opinion of the court.

On August 27,1936, the plaintiff secured a judgment by confession against the defendant in the sum of $12,-645. The note was signed by the defendant, Jay Fred Reeve, payable to the order of the plaintiff, Drusilla 1ST. Pierce, dated November 25, 1929, and due 6 months after date, in the sum of $9,000, with interest after date at the rate of 6 per cent per annum.

From the record in this court, it appears that on September 23, 1936, the defendant filed a verified petition to set aside the judgment by confession, alleging inter alia that there was no consideration received by defendant from the plaintiff on account of the note. From the petition filed by the defendant to set aside and vacate the judgment entered by confession against him on August 27,1937, the defendant, as a part of the petition, states that there was purchased through the Foreman Trust and Savings Bank at defendant’s suggestion and authorization certain shares of stock on the New York Curb and Chicago Stock Exchange, said stocks being-delivered to and paid for by the plaintiff’s bank; that defendant did not receive delivery of said stocks or have possession of any of the funds with which the same was purchased; that the defendant received nothing whatever in connection therewith, and had no agreement of any kind to receive anything in connection therewith from anyone; that said stocks later declined in their market value and said note was given by defendant to plaintiff to cover the aforesaid loss, with the oral understanding that said note would be paid at the financial convenience of the defendant and that no suit would ever be brought thereon; that the same would be secured by certain life insurance on defendant’s life; that said note would be payable only in the event the payment of same was convenient to the defendant during his lifetime, and if not convenient, then upon his death, the same would be paid out of the proceeds of said life insurance, which policies defendant simultaneously delivered to plaintiff with the delivery of said note.

The plaintiff filed her answer to the said petition wherein she vigorously denied that there was no consideration given for said note. On October 1,1939, at the conclusion of the hearing on said pleadings, the court ordered said judgment by confession to be opened and stand as security; that defendant’s petition stand as defendant’s answer to the complaint herein and plaintiff’s answer to said petition stand as plaintiff’s reply thereto.

Upon the trial before the court without a jury, the judgment note was received in evidence" as plaintiff’s exhibit No. 1, and the assignment of certain life insurance policies made by the defendant to the plaintiff was received in evidence as plaintiff’s exhibit No. 2. The note in question is in words and figures as follows:

“November 25, 1929

“Sixmonths after date, for value received, I promise to pay to the order of Drusilla N. Pierce Nine Thousand and no/100 Dollars, at Chicago, Ill., with interest at 6 per cent, per annum after date until paid.

“And to secure the payment of said amount . . . hereby authorize, irrevocably, any attorney of any Court of Record to appear for ... in such Court, in term time or vacation, at any time hereafter, and confess a judgment, without process, in favor of the holder of this Note, for such amount as may appear to be unpaid thereon, together with costs and . . . dollars attorney’s fees, and to waive and release all errors which may intervene in any such proceedings, and consent to immediate execution upon such judgment, hereby ratifying and confirming all that . . . said attorney may do by virtue hereof.

“Jay Fred Reeve.”

At the time of the execution and delivery of the note by the defendant to the plaintiff, defendant delivered to the plaintiff an assignment of certain life insurance policies made by the defendant to the plaintiff, which assignment is as follows:

“Nov. 25/1929

“For Value Received I hereby assign transfer and set over to Drusilla N. Pierce all my right title and interest in & to policies No. 4803871-4803876, 4803873-4803874, which policies I have this day assigned to Drusilla N. Pierce and delivered to her, and I hereby authorize her to have herself substituted as beneficiary in said policies. This assignment is intended as security for a certain promissory note in the sum of nine thousand dollars, which I have this day executed & delivered to Drusilla N. Pierce. In witness whereof I have hereunto set my hand and seal this Twenty fifth day of November 1929.

“Jay Fred Reeve (Seal) ”

After the court heard the evidence that was introduced by the plaintiff the defendant presented a written motion to find the issues in favor of the defendant and against the plaintiff, which motion the court allowed and entered judgment accordingly, and it is from this judgment that the plaintiff appeals to this court.

From the statement of facts as outlined in the plaintiff’s brief, as we have already indicated, this case was tried before the court without a jury on June 6, 1939, and it is stated as a fact that outside of the documentary evidence, it consists entirely of the testimony of the plaintiff, and it is suggested that the record discloses that Mrs. Pierce is greatly lacking in business experience; that her memory is exceedingly poor as to the details of transactions that most people would remember.

The deposition of the plaintiff was taken by defendant’s counsel on December 19,1938, and this deposition was received in evidence by stipulation. Plaintiff is the divorced wife of Dr. Norval Pierce, and the defendant, Jay Fred Reeve, as her attorney, appeared for her and was her attorney at the time the court entered a decree of divorce for her from Dr. Pierce in 1928. After that time, defendant prepared her will. The note of the defendant, payable to the order of plaintiff, on which the judgment by confession was obtained, was received in evidence and also the assignment of certain life insurance policies from the defendant to the plaintiff.

From the further statements it appears that Mrs. Pierce was in defendant’s office about her divorce case and Mr. Reeve asked her if she wanted to make some money. This was over a year before November 25,1929, the day the note and assignment in question were executed and delivered. She gave Mr. Reeve authority to purchase 500 shares of Great Lakes Aircraft Corporation stock. She paid for this with a check for $1,000, and later with a check for $10,200. In order to do this, Mrs. Pierce borrowed $11,500 from the Foreman National Bank and gave the bank her note therefor.

It also appears that she had an agency account with this bank and the bank handled numerous stocks, bonds and mortgages for her, and sent her a statement every month. The stock was purchased about November 28, 1928,. for the account of the plaintiff, through the broker, A. B. Leach & Co.

On December 17, 1928, Mrs. Pierce instructed the Foreman Trust and Savings Bank to sell 500 shares of Great Lakes Aircraft stock, when so directed by her attorney, Fred Reeve. On July 1, 1929, she again instructed the bank to hold this stock upon the order of J. Fred Reeve.

When her deposition for discovery was taken, Mrs. Pierce testified: “I told Fred very definitely that I wanted him to sell the stock if he could and pay my note at the bank; that was my definite instruction. . . . He agreed to sell the stock for me, that was the agreement.”

The defendant sold 300 shares of Great Lakes Aircraft Corporation stock in July, 1929, for the plaintiff, in conformity with his instructions from her, but contrary to her instructions, instead of paying plaintiff’s note at the Foreman Bank, the defendant purchased 500 shares of Canadian Marconi stock, listed on the New York Curb. After the purchase of this Marconi stock, the defendant confirmed the transaction by letter to the Foreman Bank. Mrs. Pierce testified that she first discovered that this Marconi stock had been purchased when she got her statement from the bank and saw among other items a transfer of this stock against her account, and that she went down to the bank to find out about it. She first called to see Mr. Bissell, who was then an officer of the Foreman Bank, and he directed her to a Mr. Izard, who had charge of the stocks and bonds.

As Mrs. Pierce was leaving the bank, she met the defendant and said: “What do you mean by selling my stock and speculating with the money you got from it?” He said, “We can’t talk here, come over to my office. ’ ’

It further appears that she was very much annoyed and told him that he knew her instructions were to sell the stock and pay the note at the bank, and that finally, Mr. Reeve said, “Well, all right, if that is the way you feel about it, I will give you a Note for your loss,” and that then he gave Mrs. Pierce a note; that she did not know what the loss was, but Mr. Reeve figured it out himself.

It is suggested by the plaintiff that she testified at the trial, 6 months later, exactly as she did on her deposition, with a few minor changes; that on November 25,1929, Mr. Reeve gave her the judgment note that bears his signature and the assignment also signed by him; and that nothing has been paid on the note.

The defendant contends that the plaintiff herself proved the defense of lack of consideration, and agrees with the plaintiff that, under section 24 of the Negotiable Instruments Act, every negotiable instrument is deemed prima facie to have been issued for a valuable consideration. This section (ch. 98, par. 44, Ill. Rev. Stat. 1939 [ Jones Ill. Stats. Ann. 89.044]) provides as follows:

“44. Presumption of consideration of parties. § 24. Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party thereto for value.” Defendant further agrees with the authorities that the burden is on the defendant to establish the absence of consideration; and urges that the defendant has successfully met this burden by reason of the fact that the plaintiff herself proved the affirmative defense of lack of consideration relied on by the defendant, and that the court so found.

The defendant further contends that the plaintiff testified that she did not give defendant anything for the note, that she was not asserting any claim or threatening anything, and it is upon that theory that the defendant argues that the court did not err in granting defendant’s motion to find the issues in favor of defendant.

When we come to consider the questions that are involved in this appeal we find that the motion to find the issues for the defendant was made at the close of plaintiff’s case, and it does not appear from anything that is before us that the motion was made at the close of all of the evidence so that the trial court could consider the motion of the defendant from that angle. The rule that has been adopted by our Supreme Court in Helm v. Illinois Commercial Men’s Ass’n, 279 Ill. 570, that has a bearing upon the question that is before us, said: “In a trial before the court without a jury a legal question, only, is raised by demurring to the evidence. The same question may be raised by submitting a proposition to the court or by a motion to find for the party. A motion to find for the defendant and to dismiss the suit at the plaintiff’s cost raises the same legal questions as a demurrer to the evidence by the defendant in a trial before the court. (Conway v. Garden City Paving Co., 190 Ill. 89; Smith v. Billings, 169 id. 294; McMicken v. Safford, 197 id. 540.) If the court sustains the motion, judgment necessarily follows in favor of the party making the motion. The motion raises only a question of law as to the legal sufficiency of the evidence to sustain a verdict against the party making the motion. (Wolf v. Chicago Sign Printing Co., 233 Ill. 501.) If there is no evidence, or but a scintilla of evidence, tending to prove the material ultimate facts necessary to sustain the plaintiff’s cause of action, such a motion by the defendant should be sustained; but if there is in the record any evidence, although contradicted, which the court can reasonably say fairly tends to prove all the ultimate facts necessary to entitle the plaintiff to judgment, then the court should overrule the motion, unless there is also uncontradicted evidence in the record that establishes an affirmative defense for the defendant. (Libby, McNeill & Libby v. Cook, 222 Ill. 206.) Where evidence of an affirmative defense is offered by the plaintiff it is proper to sustain such a motion by the defendant, even though all the material facts necessary to sustain plaintiff’s cause of action have been proven, if the evidence of the affirmative defense is not contradicted or explained. (Wallner v. Chicago Consolidated Traction Co., 245 Ill. 148.) Should such a motion be denied, the court, in effect, by that decision announces that the plaintiff is entitled to have a finding on the questions of fact, and should at once proceed to determine the question of the preponderance of the evidence unless further evidence is introduced, and render judgment accordingly. It is not requisite, under our practice, that either party should ask the court to decide the question of fact after overruling such a motion where there is no jury, or to submit the case to a jury where a motion for a directed verdict has been overruled. (Wolf v. Chicago Sign Printing Co., supra.) In a case before a court without a jury, if at the close of the plaintiff’s evidence the defendant does not desire to introduce any evidence and desires the court to take the case on the evidence of plaintiff and weigh it and make a finding of the facts and render judgment accordingly, he should plainly so inform the court. The court may then weigh the evidence, determine the question of a preponderance thereof and enter judgment accordingly. If only a motion to find for defendant is made it must be understood that it only raises a question of law, as heretofore explained, and on such a motion the court cannot weigh the evidence and finally settle the issues of fact until the question of law is settled in favor of the plaintiff. If that question of law is not in some way raised and preserved for review by this court this court cannot consider that question of law, however insufficient the evidence might appear to support the judgment of the court. (Cothran v. Ellis, 125 Ill. 496.) This was evidently the purpose of appellee in making the motion in question, that it might preserve the same for review in this court had the court ruled against it. It is also appellants’ right to have that question of law reviewed in this court after first having submitted it to the Appellate Court.”

Upon consideration of this question it is necessary to have the court consider the motion which was offered by the defendant and approved by the trial court. This motion is in this language: “Mow comes the defendant, at the close of the Plaintiff’s case, and moves the Court to find the issues in favor of the defendant and against the plaintiff for costs.” This motion was allowed by the court.

So when we come to consider the questions that have been presented, it is a question of law that should have been decided by the trial court, and, as was held by the Supreme Court in the case first above cited, if at the close of plaintiff’s evidence the defendant does not desire to introduce any evidence and desires the court to take the evidence, weigh it, and make a finding of facts and render the judgment accordingly, defendant should have plainly so informed the court. This was not done in the instant case.

So, when we come to the questions of fact, we find that a judgment note was prepared and executed by the defendant in the sum of $9,000, payable 6 months after date. In considering the questions, we are to consider the pleadings of the parties. We find from the verified petition that was filed by the defendant to set aside and vacate the judgment, that he states the reason for the execution of the judgment note, together with the assignment of certain life insurance policies to be paid to the plaintiff in case the note was not paid in the lifetime of the defendant, is that the judgment note was given to cover the aforesaid loss, and, from the evidence in this case, it is apparent that plaintiff sustained a loss and that defendant violated her instructions to him in not taking the money which he received from the sale of the Great Lakes Aircraft Corporation stock and applying it in payment of the note that was held by the Foreman Trust and Savings Bank. There is also the evidence of how the execution of the note in question was brought about, as hereinbefore indicated, that the plaintiff met the defendant when she was in the bank to inquire as to the reason for the charge in her account for the transfer of the Canadian Marconi stock, at which time she said, “What do you mean by selling my stock and speculating with the money you got from it?” to which defendant replied, “We can’t talk here, come over to my office.” She went over to the office of the defendant where he prepared the judgment note, computed the amount that was due because of the loss suffered by the plaintiff, fixing the amount at $9,000, and made the note payable 6 months after date, which was based upon a sufficient consideration; then, in addition to .that, he prepared an assignment of certain life insurance policies payable to the plaintiff.

Defendant’s defense, as outlined, is that defendant was to pay the amount of the note at his convenience, and although he fixed the maturity of the note 6 months after date, still he presented to the court his verified petition on this theory of his defense.

When we consider the state of the pleadings, it is the rule that has been adopted by our courts of appeal that where allegations are contained in the pleading of one of the parties, it is not necessary to offer evidence of the facts alleged if they are admitted by the pleading of the other party. One case which we cite, which is one of many, in support of this rule is Macaulay v. Jones, 295 Ill. 614. As we have indicated, the defendant did not state to the trial court that he did not wish to offer any evidence or had closed his case and was desirous of the court’s passing upon the questions of fact in the record and that the court weigh the evidence and render judgment for either of the parties as to the court seemed entitled from the evidence introduced.

We are of the opinion that there was sufficient evidence in this record that, as a question of law, it being a question of law, for the court to consider, that would justify the court in denying the motion of defendant and sufficient to sustain plaintiff’s case, and that upon the state of the record the defendant would be obliged to offer evidence of his defense and,- at the close of all of the evidence, the court would finally determine the question as to whether upon the facts appearing in the record, the defendant’s affirmative defense had been proven.

For the reasons stated the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

Denis E. Sullivan, P. J., concurs.

Mr. Justice Burke

dissenting: The issue to be determined is whether there was consideration for the note. Defendant does not challenge the assertion of plaintiff that under section 24 of the Negotiable Instruments Act (par. 44, ch. 98, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 89.044]), the note is deemed prima facie to have been issued for a valuable consideration, and that the burden is upon the defendant to establish the defense of absence of consideration by a preponderance of the evidence. Plaintiff could have rested her case after the introduction of the note. After making out a prima facie case, however, she testified as to the transaction surrounding the giving of the note. By stipulation, a pretrial deposition of plaintiff, taken at the instance of defendant, was introduced as a part of the record in the instant trial. The rule in this State is that the court may, at the close of plaintiff’s case, find for the defendant where the evidence of plaintiff proves the affirmative defense relied upon by the defendant. (Wallner v. Chicago Consol. Traction Co., 245 Ill. 148; Nelson v. Stutz Chicago Factory Branch, 341 Ill. 387, 396; Cox v. Aetna Casualty & Surety Co. of Hartford, Conn., 286 Ill. App. 515. In Adams v. Hall, 168 Ill. App. 569, this court said:

“While it is true that the motion was in the nature of a demurrer to the plaintiff’s evidence, and the general rule is that where there is any evidence tending to support plaintiff’s claim demurrer will not lie, yet where the case is tried by the court and the court is of the opinion that upon the evidence produced on behalf of the plaintiff no recovery can be had, we see no objection to the court so finding and entering judgment on the finding.” The testimony of plaintiff on cross-examination disclosed that there was no actual consideration. Plaintiff argues that the consideration consisted in her relinquishment of a claim she had against defendant because of defendant’s alleged violation of her instructions to apply the proceeds of the sale of the G-reat Lakes stock in payment of her debt to the bank. She testified, however, that she did not give him anything for the note; that the parties were friendly, and that she was not making any threats to sue him, or to make trouble’ for him. She does not claim that she relinquished any cause of action that she may have had against him. She suggests that the giving of the note had the effect of lulling her into a sense of security that she would recoup her losses therefrom, and that thus relying on the note she allowed the statute of limitations to run as to the cause of action, which the note superseded. This argument is invalid, as the note, by its terms, was payable 6 months after date. Therefore, she could have sued him on the note after 6 months had elapsed. If she confessed judgment against him shortly after the note became due and he defended that action on the ground of lack of consideration, she would then have ample time to amend her complaint so as to include a count in the alternative, based on the alleged violation of instructions.

The only testimony offered was that of plaintiff. Her cross-examination very materially weakened her testimony on direct examination. Her testimony is no stronger than it is made by her cross-examination. The presumption of consideration was destroyed when the plaintiff, in attempting to prove an actual consideration, showed that there was no such actual consideration. In Blanshan v. Russell, 52 N. Y. S. 963, the court said, p. 964: “It is true that the recital ‘for value received’ in a note imports a consideration, and the burden is upon the defendant to overcome the presumption arising therefrom. But if the plaintiff upon the trial proves that the note was made and delivered for a consideration that the law does not recognize as sufficient to sustain the promise, the burden which rested upon defendant has been met by the evidence in the case quite as effectively as if it had been introduced by the defendant himself.” The testimony of plaintiff also showed that she knew of the purchase of the Marconi stock shortly after such purchase was made. The purchase was made about two months prior to the stock market collapse of October, 1929. She did not repudiate the transaction until November, 1929. The trial judge was sitting both as a trier of the facts and as a judge of the law. He did not believe her testimony. It would be idle for him to force the defendant to introduce evidence of his defense when such defense was established by the plaintiff’s testimony. Had the plaintiff rested after introducing the note, the defendant could have called plaintiff to the stand under section 60 of the Civil Practice Act [Ill. Rev. Stat. 1939, ch. 110, sec. 184; Jones Ill. Stats. Ann. 104.060] and introduced the same testimony as she introduced in proving her case. It would then be the duty of the trial judge to decide the issues of fact and law. As the case stood, he heard everything on which the plaintiff relied and found against her. After all the evidence had been introduced and the court had indicated his views, a recess was taken, and she was given an opportunity to present further testimony. She could have called the defendant to the stand under the provisions of section 60 of the Civil Practice Act. She did not do so. The defendant was under no obligation to take the stand. Evidently, both the defendant and the court concluded that the plaintiff had affirmatively established the defense of lack of consideration for the note. I am of the opinion that the action of the trial court was in accordance with the law and the evidence, and that the judgment should be affirmed.


author: Mr. Presiding Justice Wolfe

text:
    Edward T. O’Connor, Trustee of Estate of Last Will and Testament of Thomas P. Hayden, Deceased, Appellee, v. The Central National Bank and Trust Company of Peoria, Appellant.
    Gen. No. 9,507.

      Opinion filed August 8, 1940.
    Todd, Arber, Pendarvis & Anderson, John M. Elliott and H. D. Morgan, all of Peoria, for appellant.
    Joseph F. Bartley, Clarence W. Heyl and Herbig Youngs, all of Peoria, for appellee; Bartley & Youngs, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

Edward T. O’Connor as trustee of the estate, under the terms of the last will and testament of Thomas P. Hayden, deceased, started'a suit in the circuit court of Peoria county against the defendant, the Central National Bank & Trust Company of Peoria, to recover the proceeds of the sale of U. S. Treasury Bonds aggregating $22,800 face value, originally owned by the plaintiff, and alleged to have been converted to its own use by the defendant. It is alleged that Edward T. O’Connor took these bonds to Rogers & Company, a brokerage firm in the city of Peoria, and delivered the same to them for the express and only purpose of having the bonds, which were registered, exchanged for coupon bonds; that Rogers & Company wrongfully, and without any notice to the plaintiff, took the bonds to the defendant bank and negotiated them to the defendant ; that Rogers & Company did a regular brokerage business in the city of Peoria, and was in the business of buying and selling, a& brokers, or agents, and owners of securities; that this fact was well known to the defendant bank, its officers and agents; that the defendant bank, through whom Rogers & Company negotiated the bonds, had actual knowledge of the infirmity, or defect in the title of Rogers & Company, or at the time of the delivery of such bonds to the defendant, had knowledge of such facts and circumstances, that its action in taking the bonds and giving credit for the same to the account of Rogers & Company, amounted to bad faith. The defendant denies that they had any knowledge that the bonds did not really belong to Rogers & Company, or that they had any knowledge of any facts and circumstances of the defect in the title to the bonds in question, which amounted to bad faith on their part.

The answer of the defendant admits that O’Connor was acting as trustee of the estate, under the terms of the last will and testament of Thomas P. Hayden, deceased; that Rogers & Company are brokers in the city of Peoria; that they received the bonds from Rogers & Company as alleged in the complaint; that the bonds were negotiated through the bank; that the bank received the proceeds from the sale of the bonds, and credited the same to the account of Rogers & Company. As a further defense to the charge in the complaint, the bank alleges that the plaintiff indorsed all of the bonds in question in blank, and delivered them so indorsed, to Rogers & Company and vested Rogers &' Company with the power and authority to transfer, sell and pledge,, or otherwise dispose of said bonds; that Rogers & Company delivered and negotiated said bonds to the defendant and took them and the proceeds thereof, for value, in good faith, and without any knowledge, or notice that the plaintiff had any title to said bonds, or that there was any defect in the title of Rogers & Company to said bonds; that plaintiff is estopped from recovering said bonds, or the proceeds thereof, from the defendant. The plaintiff filed a replication denying all affirmative allegations in the defendant’s answer. The pleadings are quite voluminous, but there is no question raised in regard to their sufficiency, so it is deemed unnecessary to state in detail what the pleadings are.

The case was tried before a jury who rendered a verdict in favor of the plaintiff and assessed damages in the sum of $28,067.17. In addition thereto, the court found that the plaintiff was entitled to $350, as expense and counsel fees, on the hearing on the suggestion of damages, for defendant’s refusal to admit certain facts. The court then entered judgment for the plaintiff in the sum of $28,417.17. It is from this judgment that the appeal has been perfected to this court.

It is insisted by the appellee that when the plaintiff proved that the title of Rogers & Company to the bonds at the time it negotiated said bonds was defective, the burden was then cast upon the defendant, who claimed to be the holder of the bonds in due course, to prove that it or some person under whom it claimed, acquired title to plaintiff’s bonds as a holder in due course; that this constituted a defect in the title to said bonds as said term is defined by the statute, and in this case it amounted to no title whatsoever. Section 75, ch. 98, of Smith-Hurd’s Annotated Statute [Jones Ill. Stats. Ann. 89.075] provides as follows: “The title of a person who negotiates an instrument is defective within the meaning of this act when he obtained the instrument, or any signature thereto, by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration or when he negotiates it in a breach of faith, or under such circumstances as amount to fraud.”

From a review of the evidence, it is clearly established that Edward T. O ’Connor took the bonds in question to Rogers & Company, for the sole purpose of having the bonds, which were registered, exchanged for coupon bonds so that it would be more convenient for him in distributing the bonds among the legatees under the will of Thomas P. Hayden, deceased; that he did not take them for the purpose of selling them to Rogers & Company and that Rogers & Company did not have good title to any of these bonds. After the plaintiff has established that the title to the bonds in Rogers & Company was defective, the question then arises, must the plaintiff show that the defendant was not a holder of the bonds in due course, or was the burden of proof cast upon the defendant to show it was a holder in due coursed

In the case of Hide & Leather Nat. Bank v. Alexander, 184 Ill. 416, our Supreme Court was discussing who had the burden of proof to show that the bank had good title to a promissory note. On page 419, of the opinion we find the following: “The third proposition assumed as a fact that the defendant was an innobent purchaser of the note, and was bad for that reason. The note was transferred by Schintz fraudulently, and the rule is, that when a note has been put into circulation fraudulently, the presumption in favor of the holder’s title is overcome. Schintz committed a fraud by disposing of the note to which he had no title, and it rested upon the bank to show that it took it in good faith for value before maturity and in the usual course of business. (Wright v. Brosseau, 73 Ill. 381; Charles v. Remick, 156 id. 327; Hodson v. Eugene Glass Co. 156 id. 397; 4 Am. & Eng. Ency. of Law,— ed. — 321.) Whether the defendant succeeded in making such proof was to be determined as a question of fact, and should have been embraced within the hypothesis.”

This court in the case of Peru State Bank v. Wag gett, 230 Ill. App. 522, use this language: “The trial court found that the note was based upon an illegal consideration. Therefore it was the duty of the appellant to prove that it was a bona fide holder in due course. The rule that a holder of a negotiable instrument is deemed prima facie to be a holder in due course has no application when it is shown that the title of any person who has negotiated the instrument is defective. When a defect in the title of the payee is shown, the burden is then on the holder to prove that he became the holder before maturity in good faith, for value, and that he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it. (Cahill’s Rev. St. 1921, ch. 98, ¶ 79; Justice v. Stonecipher, 267 Ill. 448.) ” (Woodlawn Trust & Savings Bank v. Donaho, 239 Ill. App. 158.)

In the case of Owens v. Nagel, 334 Ill. 96, the question of whether the holder of a promissory note-was a holder in due course was involved and the Supreme Court on page 101 have this to say: “Section 52 of the Negotiable Instrument act defines a holder in due course as one who takes the instrument under the following circumstances: (1) That the instrument is complete and regular on its face; (2) that he became the holder before it was overdue and without notice that it had been previously dishonored, if such was the fact; (3) that he took it in good faith and for value; (4) that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it. The evidence of defendant in error was that the note was transferred for value before it was due and that he had no notice of any set-off in favor of plaintiff in error. Under section 59 of the statute, in the first instance, defendant in error was deemed prima facie to be holder in due course. This presumption continued until evidence was produced by plaintiff in error to show the contrary. If no such evidence was produced the presumption con-tinned that defendant in error was a holder in due course. If evidence was introduced tending to show that the title of Erisman was defective, then the burden was on defendant in error to prove that he, or some person under whom he claimed, acquired title in due course. (Justice v. Stonecipher, 267 Ill. 448.) Section 55 provides that a title is defective where it is negotiated in bad faith or under such circumstances as amount to a fraud. Section 56 provides that to constitute notice of an infirmity or defect in the title of a person negotiating the note the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.”

It is apparent from the language used, both by our Supreme and Appellate Courts, that the law is that after the plaintiff had established the fact that the title in Rogers & Company to the bonds in question was defective, that the burden was then cast upon the defendant in this case to prove that it was a holder of the same in due course.

The plaintiff introduced evidence to show that on March 25, 1938, a $10,000 bond was taken to the defendant bank, by Mr. O’Connor and Ralph Buchele of Rogers & Company, to have the indorsement of O’Connor, the trustee, acknowledged before a national bank officer; that Mr. O’Connor indorsed the bond, Mr. Kleinschmidt took his acknowledgment, and the bond was returned to Mr. Buchele; that Mr. Buchele told Kleinschmidt that O’Connor had not been paid for it, and that he, Buchele, did not know whether the bond was to be exchanged, or whether it was to be paid for by check. This was the day that the Rogers & Company’s checking account at the defendant bank was overdrawn more than $9,600, and on the same day the bank credited the checking account of Rogers & Company for $10,000, although it is admitted that the bond was then worth in excess of $11,500.

Over the objection of the defendant, the plaintiff introduced evidence showing the transactions of Rogers & Company with the defendant bank prior to the time the bonds were delivered to the defendant. This evidence discloses that Albert G. Kleinschmidt, the assistant cashier of the bank, transacted all or a large part of the business between the bank and Rogers & Company under the general supervision of F. M. Blossom, the vice president of the bank; that on the day the $10,000 bond was presented to the bank by Rogers & Company, the Rogers ’ account was overdrawn $9,604; that Rogers & Company was indebted to the defendant bank in a large sum; that the bank had never taken a financial statement from Rogers & Company, but had some collateral security for the indebtedness; that collateral was worth a great deal less than the indebtedness to the bank; that Rogers & Company had signed a number of blank notes and left them at the bank and when they would have an overdraft, Kleinschmidt, the assistant cashier, would get one of these notes, fill in an amount in excess of the overdraft and hold it until Rogers & Company brought in money, or securities to cover the overdraft; that this procedure had been followed for a considerable length of time. Other testimony was given in regard to how the account of Rogers & Company was kept at the bank, especially as to the “Odd Lot Account,” and the unsatisfactory condition of the accounts of Bogers & Company.

The evidence further shows that Kleinschmidt had frequent conversations with members of the firm of Rogers & Company, prior to March 25,1938, in regard to the account of Rogers & Company with the bank. The bank, through Kleinschmidt, was demanding payment on checks which the bank was holding for the payment of securities taken from the “Odd Lot” or collateral account. On one occasion, Kleinschmidt, to keep the account of Rogers & Company from being overdrawn, used the credit of another customer of the bank, namely, George Mason Parker, for the benefit of Rogers & Company. This amounted to $5,447.82. The evidence further shows that on the evening of March 30, 1938, there was a conference between Mr. F. M. Blossom, F. F. Blossom and Mr. Kleinschmidt, relative to the account of Rogers & Company with the defendant bank, and especially in regard to a $15,-000 draft of Rogers & Company which had not been paid, and a $10,000 draft which had been outstanding from the middle of December 1937. They had a discussion as to the indebtedness of Rogers & Company at the bank and the security that they had as collateral for such indebtedness, and a general discussion about the account of Rogers & Company; that Mr. Kleinschmidt informed Mr. F. F. Blossom, the president of the defendant bank, that Rogers had some government bonds coming from the plaintiff, O’Connor. There was another meeting that night in the office of the bank’s attorney, Hiram Todd, in which Mr. F. F. Blossom, John Blossom, Albert Kleinschmidt and N. L. Rogers were present. Kleinschmidt testified that Mr. F. F. Blossom stated to Mr. N. L. Rogers, “Kleinschmidt tells me you are getting some O’Connor bonds, how soon can we have them?” That Kleinschmidt then read off a list of checks totalling a considerable amount and Blossom asked Rogers when he could pay them; that in answer to a statement by Mr. Blossom, “Mr. Kleinschmidt tells me that you are going to get some bonds from O’Connor, some Government Bonds,” Rogers replied, “That is true”; that Blossom then asked Rogers, “How many,” and he answered, “He thought about eighteen or nineteen thousand dollars worth”; that Blossom then asked Rogers in substance, “Did he, Rogers, own those bonds?” To which Rogers made some evasive reply, and with a shrug of his shoulders and movement of his hands, said, “That he would bring the bonds in, the next morning”; that the bonds had a face value of $12,800 and were delivered to Kleinschmidt for the bank the next day; that Kleinschmidt took the bonds to F. F. Blossom who instructed Kleinschmidt to retain possession of them, and make out a pledge covering the bonds.

Mr. N. L. Rogers corroborated the testimony of Mr. Kleinschmidt in regard to what was said and done at the conference between the Blossoms, Kleinschmidt and Rogers. F. F. Blossom, in his testimony, does not say that these conversations did not take place, but says, he has no recollection that the government bonds were mentioned. It would be impracticable to state in this opinion all the evidence of the transaction between Rogers & Company and the bank relative to their account and concerning the transaction in question. We think that this evidence was admissible to show the condition of the account between Rogers & Company, and the defendant bank, as tending to show that Rogers & Company, in negotiating the bonds to the defendant company, was not acting in good faith, and was concealing something in regard to the transaction. The evidence clearly shows that Kleinschmidt, the cashier, and the person through whom the whole transaction, relative to the bonds was consummated, had knowledge that Rogers & Company was not acting in good faith in the disposal of these bonds. It also seems clear that the president of the bank, at the conference, held on the evening of March 30th, at Mr. Todd’s Office, obtained knowledge from Mr. Rogers in regard to these bonds, that would lead the ordinary prudent businessman to believe that there was something wrong with the title to the bonds which Mr. Rogers was going to deliver to the bank the next day.

The defendant offered to prove that prior to March 30th, Kleinschmidt had not informed any officer of the defendant of the irregularity of some of the accounts of Rogers & Company, or that he was having trouble with them concerning its account; that they offered to prove that Kleinschmidt had a brokerage account with Rogers & Company contrary to the rules of the defendant company; that neither F. M. Blossom or F. F. Blossom had any actual knowledge prior to March 30, 1938, that Kleinschmidt had released to Rogers & Company, certain securities which had been held as collateral by the bank in the “Odd Lot Account.” We do not think the court erred in refusing to let the defendant prove these facts, as it is immaterial in this case. Whether the other officers of the bank had actual knowledge of what Kleinschmidt, as another officer of the bank, was doing, is immaterial, as the general rule of law is that the principal is charged with notice of knowledge concerning a matter within the scope of his employee’s agency. It is undisputed that Kleinschmidt, as assistant cashier of the defendant bank, was the agent and had authority to transact the business of the bank with Rogers & Company.

It is insisted by the defendant that notice could not be imputed to the bank by reason of the knowledge or acts of Kleinschmidt relative to the Rogers’ account, because Kleinschmidt was acting adversely to the interests of the bank. We cannot agree with the appellant that the evidence shows in this case, that Kleinschmidt, in his actions with the transaction in question, was acting adversely to the interests of the defendant, or for his own benefit. The defendant bank received all the money from plaintiff’s bonds and credited the account of Rogers & Company with the proceeds thereof. No cash or new value was given to Rogers & Company by the bank for the bonds. Kleinschmidt was the sole representative of the bank in carrying out this transaction. In the American Law Institute’s Restatement of the Law of Agency, section 274, after stating the general rule that the knowledge of an agent who acquires property for his principal affects the interest of his principal in the subject matter to the same extent, as if the principal had acquired it with the same knowledge, the following is stated: “Where agent acts adversely. The rule stated in this section applies although the agent is acting for an individual purpose of his own. Thus, if the agent for an undisclosed principal, authorized to purchase a negotiable instrument payable to bearer, purchases such instrument for the principal only to accommodate the seller, knowing of the fraud in the inception of the instrument, the principal is affected by the agent’s knowledge. The principal may be required to surrender the instrument, not because of the fraud or wrong of the agent in the scope of his employment, but because the principal must trace his title through the act of the agent. Ordinarily, he cannot keep the proceeds of the Act without at the same time being bound by the means by which the property was acquired.” To the like affect is Sherman State Bank v. Smith, 244 Ill. App. 171; First Nat. Bank of Monmouth v. Dunbar, 118 Ill. 625.

In Queenan v. Mays, 90 F. (2d) 525, it is stated: “It is a well settled general rule that notice to, or knowledge of, an agent while acting within the scope of his authority and in reference to a matter over which his authority extends, is notice to, or knowledge of, his principal. Certain qualifications of the general rule are equally well settled. A principal is not chargeable with or bound by notice to, or knowledge of, an agent as to matters involved in a transaction in which the agent deals with the principal or another agent of the principal as, or on account of, an adverse party. The exception applies when the agent is engaged in prosecuting some fraudulent or illegal enterprise, the success of which would be impaired or defeated by the disclosure to his principal of the notice or knowledge sought to be imputed. A qualification of the exception is recognized where the agent, although engaged in perpetrating an independent fraudulent act on his own account, is the sole representative of the principal and the principal, with knowledge of the facts, retains the fruits of the transaction. In such a case the principal is impaled on the horns of a dilemma. If he disclaims the agent’s act as unauthorized, he has no grounds to retain the fruits thereof; on the other hand, if he retains the fruits of the agent’s act, after knowledge of the facts, he must in fairness be charged with the agent’s knowledge. The reason for the qualification is stated in Mechem on Agency (2d Ed.) p. 1412, as follows: ‘The real ground upon which the situation rests is, . . . that where the agent is the sole representative of the corporation, the corporation can not claim anything except through him and that therefore if it claims through him, after notice of the facts, it must accept his agency with its attendant notice.”

Under the facts in this case, we think that any knowledge that Kleinschmidt, the assistant cashier of the bank, had as to the defective title of Rogers & Company to these bonds, was notice to the bank of the same defects. The bank having accepted and retained the proceeds from the bonds, is charged with their agent, Kleinschmidt’s knowledge of such defects.

Complaint is made by the appellant to plaintiff’s given Instruction No. 11. This instruction is in regard to the notice that is imputable to the bank of any knowledge that Albert G. Kleinschmidt, the assistant cashier, had of the defects or irregularity of the title of Rogers & Company to the bonds in question. We find no merit in appellant’s criticism of this instruction. The defendant’s refused Instructions Nos. 6, 9, 10,11 and 12 were based upon facts, which, at the time of the trial, the defendants alleged they could prove, but the court refused to permit them to do so, and held the offered testimony to be immaterial. We have stated in this opinion that the court properly rejected this testimony, and therefore did not err in refusing to give these instructions. Complaint is made in regard to the court’s refusal to give defendant’s instruction, “Marked No. 7, refused.” The substance of this instruction is the same as defendant’s given Instruction No. 19. Complaint is also made in regard to plaintiff’s given Instruction No. 9. We do not think this instruction is subject to the criticism as stated by appellant, as under the facts as shown by the evidence and the law of the case, it states a correct proposition of law. Defendant’s refused Instruction No. 13 is fully covered by its given Instruction No. 16. On the whole, we think the jury were properly instructed.

It is seriously insisted by appellant that the attorneys for the plaintiff in their closing argument to the jury, made improper and prejudicial remarks. It is also contended that the opening statement by the attorney for the plaintiff was highly prejudicial to the defendant and both the argument and statement were of a nature that was highly prejudicial, and for this reason alone, the judgment of the lower court should be reversed and the cause remanded for a new trial. That part of the opening statement and the argument to the jury of plaintiff’s counsel that is objected to, is contained in the report of proceedings and is abstracted. A consideration of this argument convinces us that it cannot be approved as being proper. However, whether this argument was in answer to statements made by opposing counsel, this court has no way of knowing, as the whole of the arguments are not incorporated in the report of proceedings, nor in the abstract. In the case of Rowoldt for use of Flanagon v. Cook County Farmers Mut. Ins. Co., 305 Ill. App. 93, the Appellate Court of the First District uses this language: “The closing argument of plaintiff’s counsel is severely criticized, but the argument which counsel for defendant made has been entirely omitted from the report of the proceedings of the trial.” In Metropolitan Life Ins. Co. v. Banion, 106 F. (2d) 561, 568, the court said: “Ordinarily a judgment will not be reversed on the ground of improper argument where all arguments are not in the record so that it can be determined whether the parts drawn in question were provoked or made in response.” This is the first time that this question has been called to our attention and we would not say that we are committed to the doctrine that because the whole of the arguments to the jury is not incorporated in the report of proceedings, for this alone we would hold that it is not reversible error. This case was stubbornly contested from start to finish and a casual reading of the record discloses that there were bitter feelings and caustic remarks made by the attorneys on both sides. Each side was trying to place the blame on the other, and in the heat of the arguments things were said that should not have been said. Under the circumstances as disclosed in this case, we cannot say that this argument complained of is reversible error. There is another and stronger reason why the argument complained of is not reversible error. As stated earlier in this opinion, after the plaintiff had established the fact that the bonds in question were delivered to Rogers & Company for a specific purpose and that Rogers & Company then wrongfully negotiated the bonds with the defendant company, the burden then shifted, and that the presumption that the bank was a holder in due course was overcome, and the burden to show that the bank was a holder of the bonds in due course was upon the bank to prove. This, the bank has wholly failed to do. As was said by this court, speaking through Mr. Justice Jones in Peru State Bank v. Waggett, supra, “The appellant made no effort to assume the burden of proving it was a holder in due course and there is no proof in the record, so far as we are able to ascertain, that it was such a holder. While appellant in its printed statement of the case says that it purchased the note before maturity in good faith, it fails to point out where the testimony in support of this statement can be found, either in the abstract or the record. No further reference is made to this subject by appellant.. It has staked all on the proposition that a preponderance of the evidence showed that the note was not given for an illegal consideration.” In the present case the defendant offered no evidence tending to show that it was a holder in due course of the bonds in question, but base their defense entirely upon the proposition that they had no notice of any defect of Rogers & Company’s title to the bonds. This was a failure to establish that they were bona fide holders in due course of the bonds in question. The defendant, having failed in such proof, the only verdict possible for the jury to render would be in favor of the plaintiff. Therefore, the argument complained of could not have affected the verdict that the jury must necessarily render.

After the jury had returned their verdict and after motions for judgment non obstante veredicto, and a motion for a new trial and a motion in arrest of judgment had been presented by the defendant and overruled by the court, the defendant then entered a motion to strike plaintiff’s suggestion of damages for failure to admit certain facts, which the plaintiff had requested the defendant to admit, prior to the day of the trial. The court sustained the motion in part and overruled it in part. Evidence was heard by the court who assessed damages for plaintiff against the defendant for $350 for failure to admit facts as requested by the plaintiff. The appellant claims the court erred in making such an allowance.

Mr. Clarence W. Heyl, Mr. Joseph F. Bartley and Mr. Herbig Younge, the attorneys representing the plaintiff, each testified to the time they had devoted to the preparation and introduction of the proof that was admitted by the court, as material to the issues involved and the value of such services. Mr. Gilbert B. Geiger, a certified public accountant, also testified to the amount of time he and his assistants devoted to investigation and preparation of the proof in the case and also testified as to the reasonable charges of such services. This evidence stands in the record uncontradicted, as defendant offered no proof to the contrary. Part of the Supreme Court Rule 18, provides as follows: “Any party, by notice in writing . . . may call on any other party to admit . . . any specific fact or facts mentioned in such notice, which can be fairly admitted without qualification or explanation as stated therein. In case of refusal or neglect to admit the same . . . the expenses incurred in proving such fact or facts, including a reasonable counsel fee for the time and attention devoted thereto, must be ascertained at the trial and paid by the party so neglecting or refusing, whatever the result of the cause, matter or issue may be, unless at the trial or hearing, the court or a judge certify that the refusal to admit was reasonable, or unless the court or a judge, at any time, shall order or direct otherwise.” In the present case it will be observed that the trial court has not certified that the refusal of the defendant to admit such facts as requested, was reasonable, but on the contrary, has rendered judgment in favor of the plaintiff for the sum of $350. From the evidence as presented in this record, it seems to us that $350 is very reasonable and a proper allowance.

We find no reversible error in the case and the judgment of the trial court is affirmed.

Affirmed.