text:
    Mabel A. Little, Executrix of the Estate of Robert M. Little, Deceased, Appellee, v. Blue Goose Motor Coach Company, Appellant.

      Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    Joseph McGlynn, A. M. Fitzgerald and H. C. Moore, for appellant.
    Louis Beasley and Edward C. Zulley, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

On November 1, 1925, Dr. Robert M. Little, while driving his Overland sedan at the intersection of Ridge Avenue and Twenty-seventh Street in East St. Louis, collided with a bus owned and operated by appellant. On November 23, 1925, appellant sued Dr. Little before a justice of the peace, and recovered a judgment for the damages occasioned to its bus by the said collision. Dr. Little appealed the case to the county court and the appeal was afterwards dismissed for want of prosecution. On December 1, 1925, Dr. Little sued appellant in the city court to recover damages for personal injuries alleged to have been suffered by reason of the collision aforesaid. He died on May 25, 1926, after the jury had retired to consider its verdict and before the verdict was returned. His death was suggested and the jury discharged.

Mabel A. Little, his widow, was then appointed executrix of his last will and testament, and by leave of court filed a new declaration based upon section one of the Injuries Act, Cahill’s St. ch. 70, H1. Appellant filed a special plea to the effect that it had sued Dr. Littlé before a justice of the peace and recovered a judgment against him for the sum of $139.35 on account of the damages caused to its bus by reason of the collision aforesaid; that an appeal was taken from said judgment to the county court which, on April 2, 1926, was dismissed for want of prosecution, etc. A demurrer to that plea was sustained and on appeal to this court the judgment was reversed and the cause remanded with directions to overrule the demurrer. Little v. Blue Goose Motor Coach Co., 244 Ill. App. 427.

The cause was redocketed in the trial court and the demurrer overruled. Thereupon appellee joined issue on the plea aforesaid. Appellee recovered a verdict and judgment'for $5,000.

Upon the trial of the cause appellant offered in evidence the docket of the justice of the peace together with the transcript of the judgment and the files in the case which were filed in the county court at the time the appeal was perfected. Appellant then called the justice of the peace as a witness and inquired as to what the issues were and as to what the case was about. Counsel for appellee objected on the ground that the docket and the transcript of the evidence taken before the justice of the peace were the best evidence. The objections were sustained. Appellant then called the reporter who took the testimony and he testified that he had transcribed his notes and had turned the transcript over to counsel for appellee. One of said counsel was then called as a witness and testified that his firm had the transcript of the evidence and that it was their private property and he would not produce it.

The justice of the peace was permitted to testify that he presided at the trial of the case and heard the witnesses; that it was a suit by the Blue Goose Motor Coach Company v. Robert M. Little for damages on account of an automobile collision happening in the City of Bast St. Louis; that Mr. Zulley, one of the attorneys for appellee in this case represented Robert M. Little in the case before him; that the case was called for trial and both sides announced that they were ready and that four or five witnesses testified in the case.

Mr. Baldus testified that he was formerly connected with appellant and remembers the collision in question ; that suit was brought by the bus company against Mr. Little before the justice of the peace; that the suit before the justice was in regard to the same collision about which this suit is now pending.

The docket of the justice of the peace contains the following entry: “November 23,1925, Summons issued against Robert M. Little on complaint of Blue Goose Motor Coach Co. for failure to pay it a certain demand for damages in automobile collision, returnable December 1, 1925, at 3 o’clock P. M.” It also shows that on November 25, 1925, the summons was returned by the constable as personally served by reading the same to the defendant and leaving him a copy thereof; that on November 28, 1925, the cause was continued by agreement of both sides to December 3,1925, at 9 a. m.; that on December 1, 1925, defendant’s attorney requested a bill of particulars and that the same was filed; that on December 3, 1925, at 9 o’clock a. m. the case was called and both sides announced that they were ready for trial; that the issues were submitted to the court; that the witnesses were sworn and the testimony heard and the -case was then taken under advisement until December 5,1925; that on December 5,1925, the court found the issues in favor of the plaintiff and that defendant is indebted to the plaintiff in the sum of $139.35 for damages; that it is therefore considered, ordered and adjudged by the court'that the Blue Goose Motor Coach Company have and recover from Robert M. Little the sum of $139.35.

The summons issued by the justice of the peace notified Dr. Little to appear before the justice at his office in Belleville, Illinois, on the first day of December, 1925, at 3 p. m. to answer the complaint of Blue Goose Motor Coach Company for failure to pay a certain demand — damages in an automobile collision, etc.

After the county court had dismissed the appeal for want of prosecution, one of the attorneys now representing appellee, and who then represented Dr. Little, filed his own affidavit in support of a motion to set aside the order of dismissal. That affidavit was offered in evidence in this case and contains this statement: “Affiant further states that said defendant has a good defense to this suit, for the reason that plaintiff’s claim is for damages to fhe bus occasioned by and through the negligence of plaintiff’s servants.”

The bill of particulars which was called for by counsel for Dr. .Little before the justice of the peace and which was filed, as stated by the justice in his record, is probably the bill of W. L. Proffitt & Company against appellant for repairs upon its bus, as it was returned by the justice of the peace as a part of the files in the case before him.

In view of the foregoing evidence and the attitude of counsel for appellee upon the trial of the cause there can be no reasonable doubt but that the action brought by appellant against Dr. Little before the justice of the peace was for damages to appellant’s bus occasioned by the negligence of Dr. Little. .Appellee offered no evidence upon that issue and the evidence offered by appellant is uncontradicted.

Appellee insists that because of the fact that it appears near the top of the page of the justice’s docket that the form of the action was assumpsit, it cannot be held that the action was based upon the negligence of' Dr. Little. In suits commenced before justices of the peace, technical precision and accuracy in form of the entries are not indispensable. Brennan v. Shinkle, 89 Ill. 604. Counsel also argue that the judgment rendered by the justice was in favor of the Blue Goose Motor Company instead of the Blue Goose Motor Coach Company, and for that reason, the judgment has no force or effect in this proceeding. Upon the oral argument the attention of counsel was called to the fact that the record shows that the judgment was rendered in favor of appellant and that the discrepancy in names was due to a mistake in abstracting. Thereupon counsel conceded that there was nothing in that point.

Counsel argue that there is nothing in the justice’s docket to show that any fact material to the issues in the case at bar was determined by the justice of the peace. They succeeded in getting the trial court to hold that the docket of the justice fully showed what the issues were. If the record does not show the full and true state of the controversy and matters investigated, parol evidence is admissible to supply what is not shown. Gray v. Gillilan, 15 Ill. 453; People v. Burt, 267 Ill. 640.

We are of the opinion that the evidence above referred to clearly shows that appellant recovered a judgment against Dr. Little on the ground that his negligence was the proximate cause of the damages to appellant’s bus. The justice of the peace necessarily found that such was the fact, because, without such a finding, appellant was not entitled to recover.

It appears, therefore, that in the lifetime of Dr. Little it was judicially determined that his negligence caused the collision in question, from which his death resulted. Appellee’s right to sue for damages, under the statute, depends upon the deceased having a right of recovery for his injuries immediately before his death. Mooney v. City of Chicago, 239 Ill. 414; Michigan Cent. R. Co. v. Vreeland, 227 U. S. 59.

The statutory action is a right dependent upon the existence of a right in the decedent; immediately before his death, to have maintained an action for Ms wrongful injury, and it is upon tMs principle that it is generally held that a release or accord and satisfaction, or a prior recovery by deceased in his lifetime, constitutes a defense to the statutory action for the death. 17 C. J. 1201. It is almost everywhere held that a recovery by a decedent for personal injuries to him is an absolute bar to a subsequent maintenance of an action under the statute for his death, 17 C. J. 1250 ; 39 A. L. R. 579, and a final judgment on the merits denying a recovery has a like effect. 17 C. J. 1250.

Appellant having recovered a judgment against Dr. Little for damages to its bus alleged to have been caused by the wrongful act, neglect or default of Dr. Little, growing out of the same collision which is involved in this case, it necessarily follows that appellee has no cause of action under the statute. It would- be strange indeed if appellant could recover in one suit for the damages to its bus on the ground that the collision was due to the negligence of Dr. Little, and that appellee, in another suit, could recover for the death of Dr. Little on the ground that he was not guilty of any contributory negligence but that the negligence of appellant was the proximate cause of his death.

The judgment is reversed with a finding of fact.

Reversed with finding of fact.

Finding of fact: The clerk will incorporate in the judgment the following: “The Court finds that appellant sued Dr. Robert M. Little, appellee’s testate, before a Justice of the Peace for damages to its bus in the collision which occurred on November 1, 1925, and recovered a judgment therefor in the sum of $139.35; that in the rendition of said judgment it was necessarily determined that the collision and damages occasioned to the bus were due to the negligence of Dr. Little and that immediately prior to his death he could not have maintained an action for personal injuries growing out of the same collision.”


source: Caselaw Access Project

author: Mr. Presiding Justice Barry

license: Public Domain

text:
    Rowland Gannon, Appellant, v. Mildred Kiel, Appellee.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    T. S. Morgan, for appellant.
    Pope & Driemeyer, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee recovered a judgment in the city court of East St. Louis against appellant in an action of tort and procured an execution against his body. Appellant then filed a petition in the county court, under section 2 of the Insolvent Debtors’ Act, Cahill’s St. ch. 72, If 2, asking to be discharged from imprisonment. Appellee answered and upon a hearing the court dismissed the petition and remanded appellant to the custody of the sheriff.

The declaration in the action in which appellee recovered judgment consisted of two counts. The first charged appellant with general negligence in the operation of his car which caused appellee’s injury and that she was then and there in the exercise of ordinary care for her own safety. The second charged that appellant, in reckless disregard of the rights of pedestrians, wilfully and wantonly drove his automobile against appellee, and wantonly and wilfully injured her.

In the law of negligence, if a person intentionally inflicts an injury he may be found guilty of wilful and .wanton negligence. If he does not intentionally inflict the injury but his conduct is such as to charge him with constructive or legal wilfulness he may be found guilty of wilful and wanton negligence even though he had no intent to injure anyone. Bernier v. Illinois Cent. R. Co., 296 Ill. 464; Bremer v. Bake Erie & W. R. Co., 318 Ill. 11; Brown v. Illinois Terminal Co., 319 Ill. 326,

In an action of tort a defendant may be guilty of wilful and wanton negligence without malice being the gist of the action within the meaning of the Insolvent Debtors’ Act, Cahill’s St. ch. 72, 5. That is by reason of the fact that his conduct may be such as to charge him with constructive or legal wilfulness even though he had no intent to injure anyone.

If issues are made upon all the counts in suit against an insolvent debtor, including one of which malice is the gist, a judgment upon a general verdict is responsive to such issues and prima facie establishes that malice was the gist of the action, and the burden is upon the petitioning debtor to show the contrary. Jernberg v. Mix, 199 Ill. 254.

The term “malice,” as used in the Insolvent Debtors’ Act, Cahill’s St. ch. 72, H 5, implies a wrong inflicted on another with an evil intent or purpose. It requires an intentional perpetration of an injury or a wrong on another. Such intention to commit the wrong is necessary to deprive the party of the right to a discharge from arrest or imprisonment under the act. First Nat. Bank of Flora v. Burkett, 101 Ill. 391; Seney v. Knight, 292 Ill. 206.

In the case at bar appellee admitted in her answer to the petition that the evidence in her case against appellant showed that appellant did not see appellee prior to the time of the collision. That being true, we are of the opinion that it cannot be rightfully said that malice was the gist of the action within the meaning of the Insolvent Debtors’ Act, Cahill’s St. ch. 72, U 5. Appellant might be guilty of constructive or legal wilfulness so far as the law of negligence is concerned. Constructive or legal wilfulness, however, is not sufficient to show that malice was the gist of the action. How can it be said that appellant intentionally perpetrated the injury of appellee if he did not see her or know that she was present? As we understand the law, there must be an actual intention to perpetrate the injury and that it is not sufficient that appellant may have been guilty of constructive or legal wilfulness. Under appellee’s admission we are of the opinion that the court erred in dismissing appellant’s petition and remanding him to the custody of the sheriff. The judgment is reversed and the cause remanded with directions to discharge appellant.

Reversed and remanded with directions.


author: Mr. Justice Newhall

text:
    Goldie Susman and Simon Susman, Appellants, v. Minnie Susman, Appellee.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    Logan B. Skipper and White & Quindry, for appellants.
    D. L. Duty and E. M. Spiller, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

Appellants filed in the circuit court of Williamson county a creditor’s bill against appellee, widow of Sam Susman, to set aside a deed, made to appellee by her husband during his lifetime, conveying a certain mercantile building property in Herrin, Illinois, in which bill appellants charged that the conveyance was made to defraud creditor, including appellants. Appellee filed an answer denying the indebtedness of Sam Susman to appellants and averring that the conveyance was made for valuable consideration. Cause was heard before the chancellor and after hearing, a decree was entered dismissing appellants’ bill for want of equity.

The amended bill of complaint charged that Sam Susman was on January 5, 1925, indebted to appellant Goldie Susman in the sum of $3,664.50, evidenced by promissory note of that date due six months after date, which note was signed by Sam Susman in the name of B. & S. Susman, Inc., by Sam Susman, which note was alleged to be a personal obligation of Sam Susman for money loaned him by appellant Goldie Susman and that there did not exist any corporation by that name at the time the note was signed.

Bill further alleged that on January 8, 1925, said Sam Susman was indebted to appellant Simon Susman in the sum of $2,000 for which he gave his personal note; that on April 23,1926, Sam Susman also executed a note for $325 payable to a bank in Centralia which had been indorsed by appellant Simon Susman; that appellant Simon Susman was afterwards compelled to pay a judgment rendered on the note given to the bank.

Bill further alleged that Sam Susman died May 25, 1926, and that his estate is insolvent; that by reason thereof appellants were unable to collect the money due them; that previous to the execution of said notes Sam Susman was the owner of a mercantile brick building valued at $35,000 in Herrin, Illinois, subject to a mortgage of $10,000; that on January 24, 1925, said Sam Susman transferred the Herrin property to his wife (appellee); that at the time of the transfer the said Sam Susman was indebted to appellants" and he made the conveyance to his wife with intent to defeat, hinder and delay his creditors.

From the evidence appearing in the record it ap-z pears that prior to January 24,1925, the deceased Susman was in the mercantile business at Herrin, Illinois, and that he owned an equity in his home valued at about $6,000, together with a $10,000 stock of merchandise located in the building on the premises in question ; that shortly thereafter the deceased Susman sold his home and stock of merchandise and removed to St. Louis where he and his wife were living at the time the deed in question was made.

Proof offered on behalf of appellee tends to show that appellee had been a stenographer in St. Louis and had accumulated about $2,000 before she married the deceased; that prior to her marriage her father had given her a wedding gift of $5,000, and on other occasions, after her marriage, other sums of money which she claims to have loaned her husband for use in his business; that on the 24th of January, 1925, the husband of appellee in order to reimburse her for the loans which she had made her husband, executed and delivered the deed in question; that appellee’s husband removed, to St. Louis and he thereafter engaged in the mercantile business operating a chain of stores in St. Louis, Missouri, and in Bast St. Louis, Illinois, two of which stores were known by the name of “Nancy Shoppes” and the other was known as the “B. & S. Susman, Inc.” The husband of appellee continued in this business until about four months prior to his death when he moved to Marion, Illinois, and engaged in business under the trade name of “Shirley Shoppe.”

After the death of Sam Susman on May 25,1926, his estate was probated in the county court of Williamson county and claims aggregating about $17,000, including those of appellants, were filed and allowed against the estate, with inventoried assets of about $3,800.

The credible proof in the record tends to show that the value of the property in question is about $17,000, subject to a $10,000 mortgage. Appellants contend that the decree of the court below is contrary to the evidence. It is further urged on behalf of appellants that at the time Sam Susman made the deed in question, he owned no property of any value except the property that he conveyed to his wife, and when he conveyed away this real estate he was heavily indebted and rendered himself insolvent and unable to pay his debts. It is further contended by appellants that the debts owed to appellants were sufficient in amount to afford reasonable evidence of a fraudulent intent, and that appellants were not obliged to show the absolute insolvency of Sam Susman at the time of the making of the deed in question.

Appellee contends that the decree should be affirmed because the bill does not aver the insolvency of the deceased Susman at the time of the execution of the deed in question; that the preponderance of the proof does not show that the grantor Susman was insolvent, and, further, that the proof shows there was adequate consideration for the conveyance, and that there was no fraud or bad faith on the part of appellee.

Even though it be said, as urged by appellants, that we should disregard the testimony of appellee as to the alleged loans to her husband, and that such were not made with the understanding of creating a valid and subsisting debt, yet the record does not disclose any fraud, in fact, in reference to the conveyance of the property in question to appellee. If there be any fraud, it is only such fraud as is presumed by reason of the making of the deed under such circumstances as in law should be held to be a voluntary gift. The elements of what constitute presumptive fraud were considered by the Supreme Court in the case of State Bank of Clinton v. Barnett, 250 Ill. 312, 317, where it was said:

“In order to constitute presumptive fraud, or fraud in law, in such a case, three elements must be proven: First, there must be a voluntary gift; second, there must be a then existing or contemplated indebtedness against the donor; and third, it must appear that the donor did not retain sufficient property to pay her indebtedness.”

The Supreme Court in the foregoing case quoted from the case of Bittinger v. Kasten, 111 Ill. 260, and it was said:

“The owner of property may at any time give the same to anyone he chooses, so long as he thereby injures no then existing creditor, . . . and the mere fact that he may be indebted is not alone sufficient to make a gift or voluntary conveyance by him inoperative.” -

And it was held that if the creditor failed to aver and prove insolvency of the debtor, at the time conveyance was made, he was entitled to no relief. In passing upon the same question in Dimond v. Rogers, 203 Ill. 464, it was said:

“In order to obtain relief it was necessary to prove a transfer which in fact or in law was fraudulent as to creditors, or in a case of a voluntary gift or conveyance to the husband, that the judgment debtor did not retain enough money or property to pay her debts.”

The Supreme Court further held in the Barnett case that it was necessary to both aver and prove the insolvency of the grantor at the time of the making of an alleged gift and that the proof of insolvency three years after the making of a gift was insufficient to prove insolvency at the time of the making of the transfer.

The bill in the instant case does not charge that Sam Susman was insolvent when he made the conveyance to appellee on January 24, 1925, and that he did not then retain sufficient property to pay his creditors. The proof tends to show that Sam Susman had more than sufficient property at the time of the making of the conveyance to pay his then existing creditors. We cannot conclude from the mere fact that his estate was insolvent that the deceased was also insolvent at a period more than 16 months prior thereto, in the absence of some definite showing as to when the debts filed against the estate were incurred. Particularly so, where the nature, extent and value of the grantor’s various property interests, at or about the time of the making of the conveyance in question, was not shown by competent proof in the record. The alleged insolvency of the grantor Sam Susman was a necessary averment in‘the bill which would require affirmative proof in support thereof in order to warrant the relief prayed for in the bill, in the absence of proof of actual fraud in the making of the deed in question.

For the reasons aforesaid the decree of the court below is affirmed.

Affirmed.


text:
    S. J. Doumas and Emma Doumas, Appellees, v. J. Mormella et al., Defendants. Yellow Manufacturing Sales Corporation, Intervening Petitioner, Appellant.

      Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.

      E. M. Lewis and Harry C. Grossman, for appellant ; Louis N. Grossman and Bernard A. Stol, of counsel.
    Roscoe Forth, for appellees.
   Mr. Justice Newhall

delivered the opinion of the court.

This is an appeal from a judgment of the city court of Granite City, sustaining a demurrer filed by appellees to an intervening petition filed by appellant in an attachment case.

A suit in trespass was brought by appellees against certain defendants in the court below, who, according to appellees’ declaration, drove a motor bus againstappellees’ building, damaging the same. Some of the defendants, not being found, an attachment in aid was sued out, the grounds alleged in the attachment being the nonresidence of the defendants, who owned the motor bus.

By virtue of the attachment writ, the motor bus in question was seized by the sheriff. Thereafter, appellant filed its intervening petition in the pending trespass suit, claiming title and the right to the possession of the motor bus. Upon demurrer being filed by appellees to the amended intervening petition of appellant, the same was sustained, the petition dismissed, and this appeal is prosecuted to reverse the judgment of the trial court.

The amended intervening petition avers that appellant is a corporation, with its principal place of business in Chicago, Illinois; that the motor bus in question was seized by virtue of a writ of attachment issued out of said city court, and that, at the time of seizure, was the property of appellant arid not the property of the defendants in the attachment suit; that on the 26th day of May, 1926, appellant sold and,delivered said motor bus at Chicago, Ilinois, to S. M. Blumberg and J. Norniella, residents of the City of Detroit, Michigan; that to secure the unpaid purchase price then due to appellant, Blumberg and Norniella, the purchasers, executed and delivered at Chicago, Illinois, unto appellant a chattel mortgage on said motor bus, bearing date May 26, 1926, in the sum of $8,615, and which motor bus, in accordance with the terms of the mortgage, was to be kept at 215 West Congress Street, Detroit, Michigan; that a copy of said mortgage was attached to the petition and made a part thereof; that Blumberg and Norniella, the mortgagors, acknowledged the same before a notary public of Cook county, Illinois, and the mortgage, with accompanying affidavits, was filed for record with the city clerk of the City of Detroit, Michigan, on May 28, 1926, in accordance with the statutes of Michigan relating to chattel mortgages, which are set forth in the petition.

The petition further avers that the said mortgagors were, at the time they executed said mortgage, residents of the said City of Detroit, Michigan, and still are such residents; that on May 3, 1927, appellant executed and filed in Detroit, Michigan, an affidavit for the renewal of said mortgage pursuant to the provisions of the Michigan Statutes, which are also set forth in the petition; that the mortgagors failed to pay the monthly instalments provided therein, and that, by reason thereof, appellant, the mortgagee, declared a default, and claims it is entitled to the possession of said motor bus to satisfy a balance due on the mortgage of about $4,065.

The chattel mortgage contains a covenant that the mortgagors will keep said motor bus, when not in use, at No. 215 West Congress Street, in the City of Detroit, State of Michigan, unless the mortgagor shall secure the consent in writing of the mortgagee to a change in place of storing or housing said bus.

Appellant contends that, although the mortgaged property and the mortgagors may have been temporarily in Illinois at the time the mortgage was physically executed, still, the anee with the terms of the mo Michigan, at the residence of the mortgagors, was sufficient to give it validity, and that our courts shoulc. enforce it on the ground of comity. and transferred immediately

Counsel are in error in assuming that the record shows that the motor bus was ever shipped or transferred to Michigan at any time after its purchase in Illinois on May 26, 1926.

By the averments of the amended petition, the motor bus was purchased from and delivered by appellant at Chicago, Illinois, on the same day the mortgage was executed and delivered by the mortgagors, at Chicago, Illinois, it being then acknowledged before a notary public of Cook county, Illinois.

While the mortgage recites that the mortgagors would keep said motor bus, when not in use, at No. 215 West Congress Street, in the City of Detroit, Michigan, yet there is no averment that, at and prior to, the recording of the mortgage, or, in fact, at any time prior to the filing of the amended petition, the property mortgaged was ever in the State of Michigan. So far as the averments of the amended petition are concerned, the mortgaged property may have been in the State of Illinois during the entire period from the date of its purchase until the levy by the sheriff under the attachment writ.

It is conceded by appellant that the mortgage was not made and recorded in the manner required by the Illinois Statute in reference to chattel mortgages, and that appellant’s right must depend, in the first instance, upon the validity of the mortgage under the Michigan Statutes.

Appellant further contends that, although the mortgage was actually executed in Illinois on property then situated in Illinois, it was, in legal contemplation, and by intention of parties and the wording of the mortgage, made in Michigan, and is to he governed by the laws of Michigan.

Appellees contend that the situs of the property in question was in Illinois at the time of the sale, and at the time of the execution and delivery of the chattel mortgage. Therefore, the validity of the mortgage is controlled by our statute in reférence to chattel mortgages, and that, appellant having failed to record the same in Illinois, appellees have a prior and valid lien on the property by virtue of their attachment writ.

In 11 C. J. 423, it is said:

“While it is often stated that personal property has no situs but follows the domicile of its owner, this fiction of law is ordinarily disregarded in the case .of chattel mortgages, and the property is considered as having an actual situs at the place where it is located; hence, where a mortgage is executed in one state by parties resident or present therein, and the property mortgaged is located in another state, it is held, as a general rule, that the law of the state where the property is located will control as to validity and effect of the mortgage, the necessity of recording and the effect on creditors of a failure to record, and as to the question of its priority as between different lienholders.”

In Bridges v. Barrett, 126 Ill. App. 122, it was held that a chattel mortgage, to constitute a valid lien on personal property, must conform to the laws of the State of the situs of the property, and not to the laws of the State of the dqmicile of the owner.

To the same effect are the following cases: Ames Iron Works v. Warren, 76 Ind. 512; Aultman & Taylor Machinery Co. v. Kennedy, 114 Iowa 444; Green v. Van Buskirk, 74 U. S. 139, 19 L. Ed. 109.

In Hervey v. Rhode Island Locomotive Works, 93 U. S. 664, 24 L. Ed. 1003, it was held that every State has the right to regulate the transfer of property within its limits, and that both residents and nonresidents desiring to create a lien on personal property situated in Illinois must comply with the Illinois law on chattel mortgages with reference to recording, and, if this is not done, the instrument has no validity so far as third persons are concerned.

The Michigan Statutes, set forth in appellant’s petition, require that a chattel mortgage, in order to be valid as against the rights of third persons, shall be recorded “where the goods or chattels are located, and also where the mortgagor resides,” except when the mortgagor is a nonresident, then “where the property is.”

In First Nat. Bank v. Weed, 89 Mich. 357, 50 N. W. 864, the Michigan Supreme Court held that it is the intent of this statute that the filing for record should be in the place where the property is at the time of the execution and delivery of the mortgage, and not in some other place to which the property may be removed after the execution and delivery of the mortgage ; that it was the further intent of the Michigan Legislature to fix a rule by which all mortgages should be filed and by which all should be governed, and that the time of the execution and delivery of the mortgage fixes and determines the place where such mortgage' must be filed.

Before the mortgage in question could be said to be valid under the Michigan laws as to third persons, who have acquired a lien without notice, it would be necessary to show that the property mortgaged was actually located in the State of Michigan at the time of the execution, delivery and recording of the mortgage.

Under the facts shown by this record, the mortgaged property was situated in the State of Illinois at the time of the execution and delivery of the mortgage, and it does not appear from this record that the mortgaged property was ever removed from the State of Illinois.

In St. Paul Cattle Loan Co. v. Hansman, 215 Ill. App. 190, it was held that a chattel mortgage executed in Minnesota on property then situated there, but afterwards recorded in Wisconsin on the theory that the mortgaged property was to be removed to the latter State, was invalid as to third persons without notice under the Wisconsin Statute for the reason that there was no proof "that the property was ever in the State of Wisconsin, andj further, that such mortgage had no validity under the Minnesota Statute as to third persons without notice, for the reason that there was no attempt to comply with the Minnesota chattel mortgage laws.

If appellant had made such a showing in the record that it had a valid chattel mortgage under the Michigan laws as against the rights of third persons who acquired a lien without notice, then our courts, under the doctrine of the law of comity, would, in a proper case, enforce the lien of such valid mortgage. (See Mumford v. Canty, 50 Ill. 370; Armitage-Herschell Co. v. Potter, 93 Ill. App. 602.)

For the reason that appellant failed to show that it had a valid chattel mortgage lien on the property in question that was superior and prior to appellees’ lien under their attachment proceedings, we are of the opinion that the judgment of the city court should be affirmed, and the same is hereby affirmed.

Affirmed.


text:
    The People of the State of Illinois ex rel. Road District No. 12, Appellant, v. Cache River Drainage District, Appellee.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    C. S. Miller, for appellant.
    H. A. Evans, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

This is a mandamus suit brought in the name of the People of the State of Illinois on relation of Road District No. 12 to compel the Cache River Drainage District to repair a bridge across one of the ditches of the drainage district located within said road district known as the “Hackberry Ditch,” which crosses a north and south public road at a point south of and along the right of way of the Chicago and Eastern Illinois Railroad Company.

Extending from the bridge north across the railroad there is a slight elevation of land for a distance of about 300 feet. When the railroad was built in 1900, it constructed a solid embankment through the low ground to the east of the point in question, and left no place for the water which collected south of the railroad to drain. In constructing-the embankment the railroad company left borrow pits along the south side of the right of way. Later on, in 1908, these borrow pits were cleaned out in order that the water might drain off, and a bridge was constructed across the ditch on the public road at the point in question.

In June, 1911, at the request of the adjacent property owners, the railroad company again cleaned out and deepened these borrow pits so as to better drain the adjoining landowners’ property. In 1915, appellee, having been organized as a drainage district under the Levee Act, Cahill’s St. ch. 42, 1 et seq., entered into a contract with the railroad company, whereby the drainage district secured the right to construct a drainage ditch on the south part of the railroad company’s right of way and along the line of the borrow pits.

In this contract the drainage district, agreed to pay the railroad company for the excavation which had already been made, and the district took over the ditch, and, together with the railroad, replaced the bridge which was removed at the time the drainage district enlarged the ditch.

The railroad company’s right of way extended in an easterly and westerly direction from Boaz to Cypress, and, prior to the building of the railroad, the public highway in question extended north and south across a low marshy slough known as Hackberry Slough. This slough took its rise in a large irregular pond known as Hackberry Pond, near the Village of Boaz, which is about 2 miles east of the highway in question. Into this pond drained all the waters from the land to the north, east and south of Boaz, and into Hackberry Slough drained all the waters that fell on this watershed, the latter being about 3 miles long and 2 miles wide.

The water from the pond and Hackberry Slough drained westward, and, prior to the building of the railroad, its course ran northward about 300 feet east of the bridge in question, then drained northwest around a tongue of high land in a southward direction, crossing the railroad, which was afterwards built, at a point about a thousand feet west of the bridge in question, and then the slough drained into what is known as Post Creek Cutoff.

In the original construction of the railroad eastward in 1900, it first encountered this slough at a point known as “J-3535” and there the railroad constructed a trestle in its line of railway to take care of the water of the slough as it came from the north side of the railroad. As the railroad was built eastward, it next encountered this Hackberry Slough at a point about 300 feet east of the bridge in question, where it crossed the bed of the slough, and there it constructed a solid embankment across the bed of the slough, some 5 or 6 feet high, making no provision for the water to follow the old slough bed in its northwestward course at this point.

The line of the railroad was constructed straight to Boaz from this point, a distance of about 2 miles, keep-, ing its embankment along the north side of the slough, but on very low ground requiring considerable fill, which was taken from large continuous borrow pits forming a ditch or drain for water in Hackberry Slough, as it flowed toward the west in times of high water.

The horseshoe bend in the old bed of the slough, as it lay north of the railroad after the construction thereof, crossed the public highway in question at a point about 300 feet north of the bridge in question, and, prior to the building of the railroad, the public road authorities had built and maintained a bridge over the old bed of the slough.

After the building of the railroad and the cutting of the railroad ditch on the south side of the track, the public highway authorities gradually reduced the size of their old bridge, and, after the construction of the drainage ditch and the bridge in question, the public road authorities removed the old culvert at the point 300 feet north of the bridge in question, and con-' structed their highway solidly across the old bed of the slough.

The trial court, after hearing the evidence, entered an order denying the prayer of appellant’s petition, and this appeal is prosecuted by appellant.

It is contended by appellant that the evidence shows that where the drainage ditch intersects the public highway at the bridge in question there was no natural watercourse, and that, under the law, the drainage district was obligated, when it built the original bridge in question, to not only restore the highway to its former state of usefulness, but also must forever thereafter maintain the bridge at such point at the expense of the drainage district.

Appellant further contends that the only question at issue in the case is whether or not the drainage ditch at the point in question was a natural watercourse, or whether it is purely an artificial ditch of said drainage district.

Appellee concedes that it was its duty, when the drainage commissioners constructed the Hackberry Ditch along the right of way of the railroad by enlarging the ditch which it found there, to either restore the highway for public travel by replacing the bridge which had been removed or by building a new bridge. Appellee further contends, however, that when this was done, it had discharged its full duty under the law, and is not bound to keep the bridge in repair.

Appellee further contends that the evidence shows that this so-called railroad ditch, which the railroad had constructed on its own lands for the purpose of draining water from the bed of the Hackberry Slough east and west of the bridge in question, was a natural watercourse when the drainage commissioners commenced to use it; that the railroad had substituted that part of their ditch immediately east and west of the bridge in question in place of the old slough bed, which formerly lay on the north side of the railroad, and that, when the railroad company made this substitution of drainage ditches in 1900, in order to save the building of another trestle, it thereby dedicated that part of their right of way for the public use of drainage, and that all the dominant lands above that point in that watershed had the absolute and perpetual right of drainage through the railroad ditch along the south side of their right of way.

It is clear from this record that, prior to the construction of the railroad embankment, there was a slough or natural depression, which crossed the railroad east of the bridge in question, then angled northward about 300 feet, and then westward in a semi-circle course, where it joined the natural outlet known as Post Creek. In times of high water or freshets, there was considerable current in this slough bed from Hack-berry Pond along the above course.

In Town of Bois D’Arc v. Convery, 255 Ill. 511, 514, it was said, in reference to what constitutes a natural watercourse, as follows:

“While there may not have been a stream at that point across appellant’s land with well-defined banks and bed, or the water may not have flowed across appellant’s land at that point at all seasons of the year, that was not necessary. In Ribordy v. Murray, 177 Ill. 134, on page 140, it was said: ‘It is true, there was no well-defined water-course in the sense in which that term is often used, having well-defined banks and bed. But that was not necessary. If the conformation of the land was such as to give the surface water flowing from one tract to another a fixed and determinate course, so as to uniformly discharge it upon the servient tract at a fixed and definite point, the course thus uniformly followed by the water in its flow is a watercourse, within the meaning of the rule applicable to this class of cases.’ ”

Identical principles of law are adhered to and reiterated in the following cases: Minnie Creek Drain. Dist. v. Nation, 315 Ill. 332, 338; Winhold v. Finch, 286 Ill. 614, 616; St. Louis Merchants’ Bridge Terminal R. Ass’n v. Schultz, 226 Ill. 409.

In view of the principles of the foregoing cases, we are of the opinion that the course of Haekberry Slough, as it existed prior to the construction of the railroad embankment, constituted a natural watercourse.

Appellant contends that, because the drainage commissioners located their ditch along the line of the railroad ditch, and the further fact that the railroad ditch and drainage ditch were not cut to follow around the old course of the Haekberry Slough north of the railroad so as to intersect the public highway at the identical point where it formerly crossed the bed of the slough, the drainage ditch along the south _side of the railroad is to be deemed “wholly and entirely an artificial ditch or drain.” Appellant further contends that, by reason of such manner of .construction, it is relieved of the burden of keeping the bridge in question in repair.

The provisions of section 55, chapter 42, of the Revised Statutes, Cahill’s St. ch. 42, If 53, exempts a drainage district from the duty of keeping in repair bridges where the drainage ditch is constructed “on the line of any natural depression, channel or watercourse.”

When the railroad company, in 1900, constructed a ditch along the south side of its right of way for the purpose of carrying the waters and furnishing a new and shorter outlet for Hackberry Slough, with the express or implied consent of all parties, who might be adversely affected by such change, then such new ditch became subject to all the burdens of a natural watercourse, and, for all parties concerned, it became a natural outlet of Hackberry Slough. The adjacent landowners, who drained their land into the slough, acquiesced, and the public road authorities abandoned their old bridge at the former point of crossing, 300 feet north of the railroad, and filled in the slough where it crossed the road. For more than 20 years prior to the filing of appellant’s suit, the ditch along the south side of the railroad has been used as a natural outlet for Hackberry Pond and Slough.

In Broadwell Special Drain. Bist. v. Lawrence, 231 Ill. 86, it was held that, where water has been diverted from its natural watercourse and has been established in an artificial channel through which the water has flowed for more than 20 years, mutual and reciprocal rights were acquired by prescription in the new channel, and that owners of land thereby acquired the right to use the artificial channel as if it were a natural stream.

When the drainage district, in 1915, located its line of ditches for draining Hackberry Slough, it was its duty, under the law, to construct its ditch through and along the line of Hackberry Slough as it coursed along the railroad right of way, provided that was the most efficient and best way of obtaining adequate drainage of the lands of the district. (See Dettmer v. Illinois Terminal R. Co., 287 Ill. 513.)

At the time- the drainage district located its ditch along the line of the railroad ditch, it was a natural watercourse, and it became the duty of the drainage district, in case it was necessary to remove the bridge at the place in question, to rebuild the bridge and restore the highway to its former state of usefulness. (See People v. Block, 276 Ill. 286.)

When the bridge is restored in kind and the highway restored to its former state of usefulness, the duty of the drainage district is discharged, and the future upkeep and care of the bridge devolves upon the public road authorities. (See People v. Peeler, 290 Ill. 451.)

It was held in the case of People v. Peeler, supra, page 457, as follows:

“The drainage district is itself a municipal corporation, and there is no authority under the law to compel it to assume any duties or liabilities of the road district with regard to building bridges on public highways over natural water-courses, as required by the statute on roads and bridges. While a road district may not be required to build bridges over artificial channels cut through its roadway by a drainage district, there can be no question that its duty to build bridges on the highways across water-courses is continuous, even though such water-courses are used by the drainage district as part of its ditches. ... It is the duty of a railroad company or of the officers of a road district to construct bridges across natural water-courses of sufficient length and height above.the bed of the stream to subserve the demands of the public with respect to their rights of drainage, not only as they exist at the time of crossing such watercourses but for all future time. (Chicago, Burlington and Quincy Railway Co. v. People, 212 Ill. 103.) When a natural water-course is just deepened and widened by a drainage district sufficiently for necessary and proper drainage, it will not require longer bridges, as a rule, than were necessary or proper to be built by the road district prior to such widening and deepening. This is particularly true where the drainage district secures a proper outlet and increases the natural fall of the water-course.”

Prior to the time the railroad constructed its embankment, appellant had the continuing burden of bridging the natural waterway of the Hackberry Slough where it crossed the public highway north of the railroad, not only for waters that then flowed but for any increase thereof occasioned by constructive drainage works, so long as the natural watershed was not changed. (See Chicago, B. & Q. R. Co. v. People, 212 Ill. 103.)

It is not claimed that the natural water run-off of any other watershed has been diverted into Hackberry Slough. Appellant has been relieved of the obligation to bridge Hackberry Slough at the point where it formerly crossed the highway, 300 feet north of the bridge in question, and to require it to repair and maintain the bridge in question does not deprive it of any legal rights, or cause it to assume any burdens not imposed upon it by law.

For the reasons aforesaid, we are of the opinion that the judgment of the circuit court denying appellant’s petition for mandamus should be affirmed.

Affirmed.


text:
    Manufacturers Finance Trust, Appellant, v. Thomas F. Stone, Appellee.

      Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    Stern & Burnett and Monroe Oppenheimer, for appellant.
    Louis Beasley and Edward c. Zulley, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

This is a suit in replevin, instituted in the city court of the City of East St. Louis, Illinois, to recover possession of a Flint touring car. •

The declaration charged that appellee took the goods and chattels of appellant and unjustly detained the same. Replevin bond was filed, and the automobile taken from appellee’s possession after the filing of the suit. Appellee filed pleas of non cepit and non detinet, together with two special pleas. The first special plea alleged that appellee purchased the automobile in question from the Griesedieck Automotive Service Company (herein referred to as the auto company) for $1,529, making a down payment of $929 and agreeing to pay the $600 balance in 12 equal monthly instalments ; that appellant was then engaged in the money lending business, charging usurious rates of interest, and that the appellant distributed instructions to automobile dealers stating how to add the usurious rate of interest to the deferred payments on sales of automobiles ; that the auto company was a customer of appellant, and, pursuant to its said instructions, charged appellee with the usurious rate of interest of $83 on the unpaid balance of $600, and included the total of these two amounts in one note for $683, payable to the auto company, which note appellee signed, and which was secured by a chattel mortgage on the automobile; that the said note provided for the payment of the principal in 12 monthly instalments of $50 each, and the interest in 12 monthly instalments of $7.90 each; that the auto company thereafter indorsed said note, and assigned said mortgage to appellant; that appellee paid all of said instalments except a balance of $41.10, which constituted usurious interest on the $600 balance; that under the statute on usury appellee does not owe said usurious interest and that thereafter appellant was not entitled to possession of the automobile when the suit was started.

The second special plea alleged that appellant lost its right to replevy the automobile for nonpayment of the last instalment for the following reasons: First, because, by accepting some of the prior instalments at times other than the due dates, appellant led appellee to believe that the contract provision for the prompt payment of the last instalment would not be insisted upon; second, because appellant, having accepted $1 more than was due on each of the 10 instalments, and appellee having demanded a statement of the balance due, appellant replevied the car before appellee received such statement or before he could ascertain the exact amount due.

The demurrer to the special pleas was filed and overruled, and then appellant filed a general replication to the pleas, and the cause was heard before a jury.

On the trial, appellant offered in evidence a promissory note in the principal sum of $683 executed by appellee, payable to the order- of the auto company, which note was secured by a chattel mortgage (offered in evidence) on the automobile in question. The mortgage provided that the mortgagor might retain possession of the car until default was made, and that, in case of default, the holder of the note would thereupon have the right to take immediate possession of the mortgaged property. The promissory note was payable in equal monthly instalments of $56.90 each, the instalments bearing no interest until maturity.

The evidence offered by appellant further showed that the note and mortgage were indorsed and assigned before maturity to appellant by the auto company ; that appellee paid 11 instalments of $57.90 each, which was $1 in excess of what was actually due at the time of the payment of these 11 instalments. The 11 payments made by appellee aggregated $636.90, leaving an unpaid balance on the twelfth instalment of $46.10, which was due on June 12, 1925, and that thereafter payment was demanded and refused, whereupon appellant made a written demand upon appellee to turn over the mortgaged property. The car was not delivered pursuant to the demand, and this replevin suit was instituted.

The evidence further showed that the auto company sold the car in question to appellee, and that the actual cash selling price thereof was $1,495, and the time price was $1,578; that the time price was obtained by adding to the cash price the sum of $83, which figure was obtained by reference to a chart which had been furnished by appellant to the auto company some time prior to the transaction in question. It was termed “a carrying’’ or “finance” charge, and included not only the privilege of buying the machine on credit, but also fire and theft insurance. The note given by appellee represented the balance due on the basis of its time price.

Before the maturity of the note, the appellant purchased the note and mortgage from the auto company for the face value of the note, to wit, $683, less a discount of $83, paying the auto company $600. Appellee did not consult appellant before giving the said note to the auto company, and appellant knew nothing of this particular transaction until after the note was given, and then negotiations were made by the auto company to sell the same to appellant; that appellee had never applied to appellant for a loan, and had never had any negotiations with appellant at the time he gave his note to the auto company.

Witnesses for appellee testified that in buying said note appellant was making a loan through the auto company to appellee; that appellee had overpaid appellant $1 on each of the 10 instalments preceding the last that was due.

Appellee showed by the testimony that, where $600 is lent to be repaid in one year, in 12 monthly instalments, and $83 is realized as profit on a loan, twenty-six and three-fourths per cent interest would be realized.

At the close of the case, appellant filed a motion for a directed verdict, which was denied. Appellant further offered a special instruction withdrawing from the jury’s consideration the evidence under the special pleas on the ground that the evidence did not sustain either of the pleas, which were denied by the trial court.

On appellee’s motion, the jury was instructed that under the statute of the State of Illinois, a contract for interest for an amount over 7 per cent was usurious, and that any party so contractnig could recover only the principal sum due; that, if the jury found, when suit was instituted, that appellant claimed $46.10, and that this sum constituted a balance on usurious interest charged by appellant to appellee, then appellee was not required to pay such balance.

A verdict was returned finding the issues for appellee, and that he was entitled to possession of the property described in the writ. Appellant then filed a motion for judgment non obstante veredicto for possession of the property, and that judgment be entered for appellee only for the costs of the suit. This motion was overruled by the court, and appellant then filed a motion for a new trial, which was denied, and judgment was entered by the trial court that the right to possession of the automobile was in appellee at the time of the institution of the suit.

It is contended by appellant that there was no evidence of usury in the transaction between the parties, and hence it was error to submit that issue to the jury. The principal question for decision in this case is whether the note, which appellee gave in part payment of his purchase of an automobile, is subject to the claimed defense of usury, in view of the fact that the note was discounted by the payee to appellant at a greater sum than a lawful rate of interest.

In Clemens v. Crane, 234 Ill. 215, page 229, it was held by the Supreme Court as follows:

“Usury is defined to be an illegal profit required and received by a lender of a sum of money from the borrower. (Blackstone, 156; Bouvier’s Law Diet.) To constitute usury, in contemplation of law, the following essential elements must be present: (1) There must be a loan or forbearance; (2) the loan must be of money or something circulating as money; (3) it must be repayable absolutely and at all events; (4) something must be exacted for the use of the money in excess of and in addition to the interest allowed by law. Some decisions appear to imply that a fifth element should be added, consisting of the intent of the parties or at least of the lender, but it seems to us quite as accurate to say that the intention of the parties as the same appears from the facts and circumstances of the case may be considered, in connection with the other evidence, in determining whether the essential elements of usury-are present in the particular case under investigation. The form of the contract is not conclusive of the question. The desire of lenders to exact more than the law permits and the willingness of borrowers to concede whatever may be demanded to obtain temporary relief from financial embarrassment have resulted in a variety of shifts and cunning devices designed to evade the law. The character of a transaction is not to be judged by the mere verbal raiment in which the parties have clothed it, but by its true character as disclosed by the whole evidence. If, when so judged, it appears to be a loan or forbearance of money for a greater rate of interest than that allowed by law, the statute is violated and its penalties incurred, no matter what device the parties may have employed to conceal the real character of their dealings.”

The proof shows that the actual transaction between the parties was in no sense a loaning of money, which is a necessary ingredient to constitute usury. The contract between appellee and the auto company was a sale on the part of the auto company to appellee as purchaser, in which appellee, being unwilling to pay all cash for his purchase, chose to pay a higher price by way of deferred monthly payments extending over a period of 12 months. These deferred payments were evidenced in the form of a note, secured by chattel mortgage on the car so purchased, and which, as a matter of fact, represented the balance of the purchase price, fixed by the auto company on a basis which would enable it, as payee of the note, to discount it with appellant and realize for the auto company its fixed cash selling price of the car in question.

Appellee was a voluntary purchaser of property which was' offered to him under two conditions, one, a cash price and the second, a higher price, if he elected to pay under a deferred monthly payment plan. He elected to take the latter plan, and knew, before he signed the note and mortgage, that the auto company, as seller, would add an additional sum to the note, which would enable it to discount the paper with a third person, and thereby realize the established price of the car. Thus, appellee was a bona fide purchaser of property, not a borrower of money, and, hence, not within the purview and protection of the usury laws.

In 27 R. C. L. 214, it is said:

‘ ‘ On principle and authority, the owner of property, whether real or personal, has a perfect right to name the price on which he is willing to sell, and to refuse to accede to any other. He may offer to sell at a designated price for cash or at a much higher price on credit, and a credit sale will not constitute usury however great the difference between the two prices, unless the buying and selling was a mere pretense; and it has been held that it is not material that the agreement for the purchase price in the future, instead of specifying the whole sum then to be paid, names a particular sum as principal, and declares that it shall draw interest at a rate which, were the transaction a borrowing and lending, would clearly be usurious; though from this proppsition there is a vigorous dissent by some courts. In other jurisdictions contrary decisions are necessitated by statutes placing all agreements for the payment of interest on the same footing, no discrimination being made in favor of those not founded on a borrowing or lending of money. And it is everywhere conceded that when the sale is in fact at an agreed cash price, and the form of a sale on credit is resorted to for the purpose of evading the statute against usury, the transaction will be declared usurious.”

In Primley v. Shirk, 60 Ill. App. 312, it was said:

“On a sale of property the parties may make such a bargain as they can agree upon, and there can be no usury charged simply because the price is fixed at one sum if paid at one time, and at another sum if paid at another.
“Discounts, at a rate greater than legal interest, for payment before the credit expires, are constantly allowed in commercial transactions with no thought of usury.”

Appellee contends that the discount of the note in question by appellant, whereby it realized more than a lawful rate of interest, is prohibited by the statute on usury.

In Colehour v. State Savings Institution, 90 Ill. 152, it was held that it is not usury to buy a note in the course of business at a discount higher than the rate of interest allowed by law. The term “discount,’’ as used in the Usury Statute, Cahill’s St. ch. 74, applies to a discount of a borrower’s note, and not to the so-called discount when the note is purchased by a third person from the payee of the note.

In 27 R. C. L. 215, § 16, it is held:

“Unless the discounting of promissory notes is by statute declared to be usurious if at a greater rate of interest than permitted by law there is little or no doubt that they, like other property, may be bought and sold on such terms as may be agreed on, and, however small the price paid, the transfer is not usurious if in good faith, and not a mere attempt to disguise a borrowing and lending of money.”

Appellee further contends that the transaction is illegal and usurious because appellant furnished the auto company with certain charts indicating at what rate of discount it might purchase notes taken by the auto company in due course of trade, if satisfactory to appellant’s subsequent approval as a credit risk.

The proof does not show that there was any privity of contract between appellant and appellee. The facts do not show any relation of principal and agent between appellant and the payee of the note. Appellant knew nothing about the particular sale between appellee and the auto company prior to the making of the note and mortgage in question. What did occur was that the auto company added the so-called “carrying or finance charge” to appellee’s note, and then, without further negotiations with appellee, proceeded, as sole owner of the note, to discount it for cash with appellant, and, in making such discount, the auto company indorsed the note, assigned the mortgage, and delivered the same to appellant, who thereafter proceeded to collect the monthly instalments from appellee. The auto company was no longer interested in the particular transaction, except a possible liability as indorser or guarantor in case appellant was unable to collect from appellee.

A similar state of facts, as to the methods used by dealers in auto cars to finance their transactions by way of discount of notes taken in trade, was considered at length in the case of General Motors Acceptance Corp. v. Weinrich; 218 Mo. App. 68, 262 S. W. 425, and held not to violate the Usury Statute of Missouri, which is similar to our statute.

To the same effect are the following cases: Davidson v. Davis, 59 Fla. 476, 52 So. 139, 28 L. R. A. (N. S.) 102; Atlas Securities Co. v. Copeland, 124 Kan. 393, 260 Pac. 659; Commercial Credit Co. v. Tarwater, 215 Ala. 123, 110 So. 39; Murphy v. Agen, — Cal. —, 268 Pac. 480; Cheairs v. McDermott Motor Co., 175 Ark. 1126, 2 S. W. (2d) 1111.

The cases of Mercantile Trust Co. of Illinois v. Kastor, 273 Ill. 332, and Dorothy v. Commonwealth Commercial Co., 278 Ill. 629, and other similar cases cited by appellee, are not applicable to the facts in the present case, since the sales iii those cases were mere shifts and devices between the immediate parties, and, in fact, were really nothing but loans of money between the parties at usurious rates.

We are of the opinion that appellee’s first and second special pleas did not state a legal defense, and that the evidence did not support such pleas.

In Rohe v. Pease, 189 Ill. 207, it was held that in replevin the plea of non cepit puts in issue only the taking of the property, and does not authorize a judgment for retorno habendo. That plea and the plea of non detinet filed in this case both admitted the property to be in the plaintiff.

It is not sufficient to allege generally that a contract is usurious without setting out the facts that make it so. (39 Cyc. 1042; Durham v. Tucker, 40 Ill.. 519.)

Appellant, by accepting payments of instalments of its mortgage after they were.due, did not thereby waive the right to declare a forfeiture for failure to pay subsequent instalments. (27 Cyc. 1533.)

Appellant contends that, the special pleas of appellant being legally insufficient to constitute a defense, the court erred in not granting appellant’s motion for a judgment non obstante veredicto.

Where a plea confesses the action and does not sufficiently avoid, judgment shall be given on the confession, without regard to a verdict for the defendant, which is called a judgment non obstante veredicto. (Gauch v. Harrison, 12 Ill. App. 457; Strong v. Gunning, 153 Ill. App. 182.)

The legal sufficiency of appellee’s special pleas were raised by appellant’s motion for judgment non obstante veredicto. (Ambler v. Whipple, 139 Ill. 311.)

Where a reversal is for error, occurring after the entry of the verdict, the reviewing court may direct the entry of a proper judgment on remanding the cause. (People v. Lord, 315 Ill. 603.)

For the reasons aforesaid, we are of the opinion that the judgment of the city court of East St. Louis should be reversed, and the cause remanded with directions to enter judgment for the possession of the property in question for the appellant non obstante veredicto.

Judgment reversed and cause remanded with directions.


author: Mr. Justice Wolfe

text:
    The People of the State of Illinois, Defendant in Error, v. Sam Campbell, Plaintiff in Error.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    Gr. W. Hill, for plaintiff in error.
    Whitson W. Daily, State’s Attorney, for defendant in error.
   Mr. Justice Wolfe

delivered the opinion of the court.

On January 30, 1928, an information duly sworn to was filed in the county court of Hamilton county, Illinois, against the plaintiff in error, Sam Campbell, consisting of two counts, the first count being for selling intoxicating liquor, and the second, for possessing intoxicating liquor.

David J. Underwood, county judge, entered the usual order requiring bail in the sum of $1,000. At the April term of the county court of said county, the defendant was brought to trial. After the jury was impaneled and sworn, it was discovered by the State’s attorney that the allegation in the second count of such information was the loth day of October, 1928, when, in fact, it was intended to be the 15th day of October, 1927, as the time the defendant possessed intoxicating liquor. On motion of the State’s attorney, leave was granted to amend this count of the information, by striking out the word “eight” and changing it to “seven” thereby changing the second count of the information charging that the defendant possessed intoxicating liquor on the 15th day of October, 1927.

The plaintiff in error objected to the second count of the information being amended, which objection was overruled by the trial court. The plaintiff in error immediately renewed his motion to quash the amended information, which was overruled.

The record in this case is in a very unsatisfactory condition and it is next to impossible to tell just what was taking place in the trial of the case, or what orders were made. However, there is one point in the casé that has been raised by the plaintiff in error of which the record is sufficiently clear. This court will take cognizance of this point and decide this case upon this one question, viz., Was there a sufficient affidavit to support the second count of the amended information ?

The first count of the information charges an illegal sale of intoxicating liquor, the second count, the illegal possession of intoxicating liquor. The jury, by their verdict, has found the defendant not guilty as to the first count of the information, but guilty of the second count, or the illegal possession of intoxicating liquor. Therefore, the only question to consider in this case is the sufficiency of the second count of the information.

The information as originally filed was properly verified, but on its face showed that it was absolutely void because of an error in charging the crime at a later date than on which the information was filed, viz., on October 15, 1928, when it should have been on the 15th day of October, 1927.

“The same certainty of allegation is required in an information as in an indictment, and if an information is sworn to before the date on which the offense is alleged to have taken place the discrepancy is fatal, even in arrest of judgment.” People v. Weinstein, 225 Ill. 530.

In the case of People v. Zlotnicki, 246 Ill. 185, Illinois Supreme Court, it is held: “If the original information charging a libel is insufficient because the libelous matter, or any part of it, is not set out, the filing of an amended information setting out such matter is an abandonment of the original information, and if the amended information is not sworn to by the complaining witness it is insufficient to sustain a conviction, notwithstanding the original information was so verified.”

From the record in this case it cannot be ascertained whether the attempt to reverify this information was made before or after the trial in the case, but, assuming that the judge’s minutes are correct, it was made before the conclusion of the trial. However, in our view of the case it is immaterial what time this notation was made. The words, “Resworn to April 12th, 1928, Roy Phipp, County Clerk,” are not such a verification, or affidavit to an information that satisfies the requirements of the law. Where an information is amended in court it must be reverified by the prosecuting witness, and a new affidavit and jurat in due form should be appended, subscribed by the subscribing witness and the officer in the manner as the original. People v. Lee, 185 Ill. App. 452.

In this case it does not show by whom the affidavit, or any affidavit in fact, was ever made, and it would be wholly insufficient as a verification of the amended information. An affidavit to an information must be sworn to positively so that charge of perjury will lie if the affidavit is false, and objection to the sufficiency of the affidavit may be made by motion to quash, or arrest. People v. Arey, 318 Ill. 305. Certainly perjury could not be predicated on the affidavit to this amended information.

In the case of the People v. Boss, 243 Ill. App. 427, this same question was before this court, and Presiding Justice Barry in that case says: “An affidavit on information and belief is not sufficient to support an information charging violation of the Prohibition Act, and an amendment striking from the affidavit the words As he is informed and verily believes’ is not sufficient, unless the affiant is resworn to the affidavit. People v. Shockley, 311 Ill. 255.

“The objection to the sufficiency of an affidavit to the information may be raised by a motion to quash or in arrest. People v. Arey, 318 Ill. 305. Where an information filed by the State’s attorney was not supported by an affidavit it was held that the court erred in denying motions to quash and in arrest. People v. Clark, 280 Ill. 160.”

In the case at bar the information as originally drawn was wholly insufficient to charge the plaintiff with the commission of a crime. The amendment was a matter of substance and not mere form. Under the authorities above cited the information when amended should have been resworn to. Plaintiff promptly raised the point by a motion to quash, and after conviction and before judgment again presented the question by a motion in arrest. He did not waive his rights in that regard but has properly preserved the question and insists upon it in this court.

The case stands in the same position as if the plaintiff had been tried upon an original information, not verified, after his motion to quash had been overruled. People v. Billerbeck, 323 Ill. 48.

There are many other questions raised by the complainant in error in this case, but owing to the unsatisfactory state of the record this court will not attempt to pass on any of the controverted questions, except the sufficiency of the information.

We are of the opinion that the information was not properly verified and the conviction of the defendant upon the second count of this information cannot stand.

The judgment of the county court of Hamilton county is hereby reversed and the cause remanded.

Reversed and the cause remanded.


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    Citizens Building & Loan Association, Defendant in Error, v. H. E. Haithcoat et al., Plaintiffs in Error.
    Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.

      D. F. Moore, for plaintiffs in error.
    Walter W. Williams and Thurlow G. Lewis, for defendant in error.
   Mr. Justice Wolfe

delivered the opinion of the court.

The defendant in error is a duly organized building and loan association under the laws of the State of Illinois, and as such filed its bill of complaint against the defendants, H. E. Haithcoat, Margaret Haithcoat and the Mercantile Bank & Trust Company to foreclose two mortgages that had been given by the Haithcoats to said building and loan association. The bill is in the usual form, setting up the execution of the notes and mortgages and obligation to pay, according to the tenor and effect of the same in monthly payments, dues, premiums, and interest, and alleges that the defendants failed to pay the same and were in arrears and indebted to the complainant association.

After alleging that the defendants Haithcoat were in default, the bill alleges “That because of the failure and defaults by the said H. E. Haithcoat to perform and keep the conditions of said writings obligatory and mortgage deeds your orator, by resolution of its board of directors duly adopted, has elected under the terms and provisions ... of said charter and by-laws to declare said obligation to be due and payable and to declare the stock so held by orator as security forfeited and to bring this suit to foreclose said mortgages. ’ ’

The defendants filed an answer to the bill denying practically every allegation that was in the bill. A hearing was had upon the bill and answer, and the court found the Haithcoats in default, ordered an accounting and found the amount due from the defendants to the complainant, and decreed foreclosure. The defendants, H. E. Haithcoat and Margaret Haithcoat,, have brought the case to this court upon a writ of error, and on motion of the said Haithcoats, an order of severance was entered against the Mercantile Bank & Trust Company, as provided under rule 9 of this court.

The plaintiff’s assignments of error are numerous, but this court will only discuss one of them, as we are of the opinion that this one is decisive in this case, to wit: Was it necessary for the defendant in error to make proof of the fact that the building and loan association had, by resolution of its board of directors, duly adopted, declared the obligation to be due and payable and to have declared the stock so held by it as security, forfeited and to bring suit to foreclose the mortgages Í

The contention of the defendant in error is that it was not necessary that any proof should be offered to sustain this allegation, but that the filing of the bill itself is enough to show that such a resolution had been passed; also contends that there is no particular form of allegation, or notice, required to declare such a forfeiture or default. They then cite the case of Owen v. Occidental Building & Loan Ass’n, 55 Ill. App. 347, as sustaining their contention. We do not think that this case supports the claim of the defendant in error.

In the case of Palmer v. DeWitt County Building Ass’n, 79 Ill. App. 362, at page 367, the only question involved was the same that is raised in this case. The court in passing upon the case used this language: “The appellants prosecute this appeal and urge us to reverse that decree on the single ground that, under those averments of appellee’s bill of complaint, which were denied by the answer, and by virtue of the provisions of the said mortgage and note, and said sections of the charter and by-laws of the appellee, and also the latter clause of Sec. 9, Chap. 32, sub-title Homestead Loan Associations, Hurd’s Illinois Statutes of 1898, p. 441, which is as follows: ‘In case of non-payment of installments of interest and fines by borrowing'stockholders for the space of six months, payment of principal and interest and fines, without deducting the premium paid or the interest thereon, may be enforced by proceedings against their securities according to law, upon the order of the board of directors; ’ and in the absence of any proof whatever that the board of directors of the appellee had, before this proceeding was commenced, authorized it to be instituted and prosecuted to enforce the payment of the principal, interest and fines, without deducting the premium paid or the interest thereon, as the appellant, F. M. Palmer, had then failed to pay the installments of'interest and fines for the space of six months. The record shows that no such proof was made at the hearing, and we are of the opinion that in the absence of such proof the Circuit Court ought not to have decreed a cancellation of the stock and the payment of the amount it did, for the reason that the mortgage only authorized such a decree upon the default in the payment of the monthly installments of . . . premiums, dues or fines on same, agreeable to the charter- and by-laws of said association, for more than six months. . . .

“The averment in the bill to the effect that the appellee ‘authorizes this proceeding to be instituted and prosecuted’ was doubtless put in the bill because counsel for the appellee then considered it material, and it was likewise considered material by the counsel for the appellants, because they saw fit in framing the answer of the appellants to expressly deny that this proceeding was authorized as alleged. So it became necessary that this material averment in the bill should have been sustained by proof to warrant the decree prayed fór.” (Vierling v. Mechanics’ & Traders’ Savings, Loan & Building Ass’n, 179 Ill. 524.)

The same rule is recognized in Armstrong v. Douglas Bark Bldg. Ass’n, 176 Ill. 298, 301, which is as follows : “As stated heretofore, the contract in the mortgage was, that for six months’ default the association could forfeit the stock and mature the debt, and then foreclose. The right to foreclose was dependent on the forfeiture and maturity of the debt. That was the agreement, and that was the effect of the action of the board of directors as the matter was treated in the arguments. If it did not have that effect to forfeit the stock and mature the debt then there was no right to foreclose. The effect, therefore, of such action was to sever the relation of the appellant with the association as a member, and necessarily released her from the obligation to pay any fines thereafter.” Endlich on Building Associations, § 102; Juergens v. Cole, 99 Ill. App. 156; Gillespie v. Greene County Savings & Loan Ass’n, 95 Ill. App. 543, 548.

In Cantwell v. Stockmen’s Building Loan & Savings Union, 88 Ill. App. 247, at page 248 the same question was in issue and the court says: “Upon the issue thus presented by the bill and the answer, appellee offered in evidence a copy of the record of the proceedings of said board, directing attorneys to institute this proceeding to foreclose said mortgage. We are of opinion that the pleadings are sufficient to authorize the admission of testimony showing the action of the board of directors. (Owen v. Occidental B. & L. Ass’n, 55 Ill. App. 348.) The case of Palmer v. DeWitt Co. Bldg. Ass’n, 79 Ill. App. 362, is to the same effect. That case was reversed because there was no proof of the necessary averment, not because the averment was not sufficient.

“The case of Wheeler v. Foster, 82 Ill. App. 153, cited by appellants, does not deal with the question of whether the allegation in the bill of complaint was sufficient. In that case the bill contained no allegation whatever of the exercise of the option conferred by the trust deed to declare the amount due.”

By the pleadings in this case the question whether the mortgage foreclosure and the forfeiting of the defondants’ stock was ever authorized by the board of directors of the building and loan association was put in issue. There was no proof whatsoever that the board of directors, by a resolution, had ever ordered such foreclosure and forfeiture. We are of the opinion that this was a material allegation and should have been proven.

It does not appear that there is anything unusual in this case in the taking and paying for stock in a building and loan association and the borrowing of money therefrom if given on notes and mortgages by defendants. The papers seem to be in the form usually adopted by such associations, but there should have been proof of the allegation of the forfeiture of the stock and declaring the defendants in default before the court would be authorized in declaring the defendants in default and their stock in the association forfeited.

The judgment of the circuit court of Franklin county is hereby reversed and the cause remanded.

‘Reversed and cause remanded.


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    Sarah Roehrig, Appellant, v. Missouri State Life Insurance Company, Appellee.

      Heard in this court at the October term, 1928.
    Opinion filed February 1, 1929.
    W. J. MacDonald, T. S. Morgan and John W. Freels, for appellant.
    Kramer, Kramer & Campbell and Roland H. Wiechert, for appellee; Jourdan & English, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

This is an appeal from the city court of East St. Louis, from a judgment of the court for the defendant upon the life insurance policy of Martin J. Boehrig, in which the plaintiff, his widow, is beneficiary. A trial was had in May term, 1926, of the said court and a verdict of the jury rendered for the plaintiff in the sum of $1,900. The court, upon a motion for a new trial by the defendant, set the verdict aside. It was stipulated that a new trial should be by the court, the record previously made before the jury being agreed upon as the record before the court. The court found for the defendant and refused plaintiff’s propositions of law numbered one to seven, and held defendant’s propositions of law numbered one to six as being the law applicable to this case.

The insurance policy sued upon is subject to the terms and conditions of a group policy of insurance issued to the Commonwealth Steel Company. Both of these policies provide that the insurance provided therein terminates with the termination of membership in the Commonwealth Employes’ Benefit Association, unless the employee shall elect to continue the insurance in accordance with the conversion privileges contained in said policy. The Commonwealth Employes’ Benefit Association was an organization consisting of the- employees of said company, which had adopted a constitution and by-laws for its government. Monthly dues were provided for, which covered the premium of the life insurance policies of the members. The dues could be paid direct to the secretary of the organization by the member, or, as was usually done, by a general order signed by a member to the Commonwealth Steel Company to deduct the amount of his dues from his semi-monthly pay.

The group insurance policy provided that ‘ ‘the insurance on any employee insured hereunder shall cease on the termination of his membership in the Commonwealth Employes ’ Benefit Association. The insurance on any employee hereunder who, subsequent to his coverage hereunder, shall be temporarily laid off, given leave of absence, or temporarily disabled,- may be continued during such period, subject to the provisions for military or naval service hereinafter mentioned, provided the insurance is continued on all whose absence from employment began at the same time.” The termination of employment by the Commonwealth Steel Company, according to the by-laws of the Commonwealth Employes’ Benefit Association, terminated the membership.

Boehrig, the decedent, was a member of the said society and paid his dues by a general order to the Commonwealth Steel Company, authorizing it to deduct the dues from his pay, which was every two weeks. His dues were $1.80 per month, which covered the premium on his insurance policy. Dues were deducted from his pay on June 23, A. D., 1923. On June 27, A. D., 1923, Eoehrig, who was a member of the Molders Union, Local Union No. 412 of the International Molders Union, with the other molders of his local was called out on a strike by the business agent of the International Molders Union owing to a dispute over conditions of labor and recognition of committees.

The strike continued until Eoehrig’s death, July 26, 1923. On January 1, A. D., 1924, the company made a ruling that all of those who returned at that time were reinstated with their old service records. Eoehrig’s premium upon his policy to the Missouri State Life Insurance Company had been paid by the Commonwealth Employes’ Benefit Association to the 1st day of January, 1924. On August 5, A. D., 1923, the secretary of the Commonwealth Employes’ Benefit Association reported to the Missouri State Life Insurance Company a list of names purporting to have terminated their membership. Included in this list was the name of Martin J. Eoehrig. The Missouri State Life Insurance Company gave the Commonwealth Steel Company credit of $11.40 as refund premium on Eoehrig’s life insurance policy. The amount of these insurance policies was determined by ye'ars of employment. Eoehrig’s policy was based on over 12 years ’ employment. It is not disputed that the amount payable under the policy at the time of Eoehrig’s death was $1,900.

It is contended by the plaintiff:

1. That the cessation of work on the part of the molders owing to the strike was only temporary cessation of employment and not a termination of Eoehrig’s employment.

2. As continuance of decedent’s insurance depended upon continued membership in the Commonwealth Employes ’ Benefit Association such membership could not be terminated on the ground of termination of employment without affirmative action on the part of the association determining whether such cessation of work due to the strike was in fact a termination of the employment within the meaning of the insurance contract.

It is contended by the defendant:

1. That the cessation of work due to the calling out of the molders in the plant on strike included decedent and terminated the employment of decedent with the Commonwealth Steel Company.

2. That the membership of decedent in the Commonwealth Employes’ Benefit Association was thereby automatically terminated without notice or affirmative action on the part of the association and the insurance policy of the decedent was canceled automatically.

The rules and regulations of the Commonwealth Employes ’ Benefit Association were placed in evidence. Section 1, Article III, provides as follows: “Any person in the employ of the Commonwealth Steel Company and at work at the time of applying for membership shall be eligible to membership in the Association.” Section 5 of the same article provides as follows: “In case of the termination of the employment of a member for any reason, his membership in the Association shall immediately cease, except as provided in Article Y, Section 5.”

It is not contended by either side to this controversy that section 5 above referred to applies in any manner to this suit. It is the contention of the appellant that when Boehrig went out on a strike with the other employees of the Commonwealth Steel Company that he did not cease to be an employee as provided in the rules and regulations of the Commonwealth Employes ’ Benefit Association, but continued as an employee of the Steel Company, and, therefore, his membership in the Benefit Association was not terminated. An examination of the cases cited by appellant as supporting this contention, discloses that this question is not involved in any manner in any of the cases cited.

In the case of Knudsen v. Benn, 123 Fed. 636, the court in its opinion stated the following: “When a servant leaves, or an employer discharges a servant, the connection of the servant with the service ceases, and this is especially so when the employé leaves of his own accord. He has the right to do so if he demands higher wages, and the demands are not complied with by the employer. He may leave, but if he does he has no right to insist upon re-employment, or to take means to compel the employer to take him back at higher wages; he has no further interest in the service.” (Union Pac. R. Co. v. Ruef, 120 Fed. 102; Gulf, C. & S. F. R. Co. v. Levi, 76 Texas 337.)

In the case of The No. G-i, 300 Fed. 757, a damage suit arising out of a strike, the court says: “In this case the marine strike began a week before this, so that the connection of the strikers with the company had been terminated for about a week; that strikers ipso facto cease to be employees or agents of their former employer is the rule adopted by this circuit in Richland Queen, 254 Fed. 668, at page 670,166 C. C. A. 166, and by the New York Court of Appeals in Geismer v. Lake Shore, etc., Railway Company, 102 N. Y. 563, 570, 571, 7 N. E. 828, 55 Am. Rep. 837.”

The Supreme Court of our own State in the case of Pittsburgh, Ft. W. & C. R. Co. v. Hazen, 84 Ill. 36, held that strikers were no longer the employees of the company. Also in the case of Mathews v. People, 202 Ill. 389, that when workmen have left and gone upon a strike that the laborers are at liberty to seek other employment and the employer is at liberty to seek other workmen to fill their places of their former workmen who are then upon a strike.

None of the cases that have been heretofore cited deal squarely with the point involved. We think that the case of Chrosniak v. Metropolitan Life Ins. Co., 121 Misc. 453, 201 N. Y. S. 211, is a case involving exactly the same points as this case and the court in passing upon the case uses the following language:

“However, from the testimony presented I am convinced that the deceased was a member of the union which called the strike of International employees; that he attended a meeting of the union after July 2, 1922; that the deceased quit work at the time the strike was called, that he never reported for work thereafter and that he never reported himself sick; that no application for benefits or for an individual certificate or policy was made by the deceased; that the deceased paid no premiums after July 1st nor the company in his behalf, and that the company did not pay deceased for working after July 1st. . . .
“The deceased was legally obligated to know his rights in the matter of demanding an individual policy, so no cancellation by the company wa§ necessary to advise him as to that. It is idle to contend that ‘active employment’ under this group policy cannot be terminated as well by the voluntary quitting of the employee as by his being discharged. I am well satisfied that this deceased quit work July 1st and remained continuously away from work because this strike was called and for no other reason; that all his conduct after July 1st indicates that; that he thus terminated his active employment; and that the correspondence among the railway company, the benefit association, the defendant, and the plaintiff — as indicated by the exhibits — manifests merely a disposition on the part of the defendant to deal fairly in general in handling an unusual and difficult situation, and does not establish any waiver of rights by the defendant nor any admission that deceased remained in the employment of the International Railway Company after July 1st.” It is also contended by the appellant that the defendant could not terminate the membership of Roehrig in their association without some kind of notice having been given Roehrig of their intentions to do so. The question of assessments, or the payment of the same, is not involved in this case, the only question being whether Roehrig in his lifetime by his own act had terminated his membership in the Commonwealth Employes’ Benefit Association, and whether by such termination his policy had become null and void.

We are of the opinion that no notice was required to be given Roehrig by anyone; that by the terms of the by-laws and rules of the association his ceasing to be an employee would ipso facto terminate his policy, because he was charged by law to know this fact. There are several facts in evidence which tend strongly to prove that the Commonwealth Steel Company did not consider any of the men who went out on the strike as being in their employ. The fact that the Steel Company did not deduct his assessment from the last payment that Roehrig received from the Steel Company is a circumstance tending to' show the attitude of the Steel Company towards Roehrig. The president of the company told Roehrig and others that if they left their-employment and went on a strike they would no longer be employees of the company; that their names would be dropped from the books of the Steel Company as employees. All of these circumstances tend to show that the company did not consider Roehrig as one of their employees after the date he went out on the strike. We are of the opinion that when Roehrig left the employment of the Steel Company and went on a strike that he ceased to be a member of the Commonwealth Employes’ Benefit Association, and the learned trial judge properly held the propositions as presented by the defendant company to be the law, and that there is no error in the findings of the court and the judgment of the same.

The judgment of the city court of East St. Louis is hereby affirmed.

Affirmed.