text:
    Merchants State Bank of Centralia, Appellee, v. Chicago, Burlington & Quincy Railroad Company, Appellant.

    1. Bills of lading — what title transferee of hill of lading talees to goods. An acceptor of a draft with a shipper’s order bill of lading attached, indorsed in blank, becomes the holder in due course of the draft and bill of lading and takes title thereto and to the goods described in the bill.
    2. Bills of lading — what is good consideration for transfer. A bill of sale of goods from the owner to his creditor, and permission by said creditor to another to issue a bill of lading therefor and dispose thereof, is a valuable consideration for the later transfer of the bill and draft to which attached, to said creditor.
    3. Damages — measure for wrongful delivery of freight. The measure of damage for wrongful delivery of freight is the reasonable market value of the goods at the place of destination with interest from the time they should have been delivered less any unpaid transport charges.

      4. Sales — pre-existing debt as consideration. A pre-existing debt is a valid consideration for the execution of a bill of sale.
    5. Appeal and error — what record showing of sale consideration unnecessary. Whether or not a definite extension of debt payment time is necessary to make a good consideration for a bill of sale, the absence from the-record of any showing that the extension was not definite will not lead the court to say that there was not a good consideration for the sale.
    6. Bills op lading — nonliability of bill of lading holder for acts of his transferor. Any acts or admissions of the transferor of a bill of lading occurring after the transfer and without the knowledge of participation of the transferee holder, are not binding on the latter.
    7. Damages — condition of goods when shipped, as bearing on measure of damages. Evidence of the condition of goods at the time shipped, especially in case they do not deteriorate readily, is admissible as tending to show their condition at the point of destination.
    8. Carriers — when shipment’s condition at destination immaterial. Payment by the buyer at the shipping point by draft for goods makes immaterial the condition of the goods at destination in an action by the holder of the bill of lading against the carrier for conversion of said goods.
    9. Carriers — shipment delivery without production of bill of lading as cause of damages. Surrender by a carrier of a shipment to a party who did not produce the bill of lading makes - the carrier liable in damages to the legal holder of the bill of lading.
    •10. Carriers — effect of another’s title on bill of lading holder’s right to sue for conversion. The holder of a duly indorsed negotiable bill of lading to sue for conversion of a shipment by the carrier’s wrongful delivery without production of the bill of lading cannot be questioned on the ground that the title to the goods was in someone not a party to the suit.
    11. Carriers — who is proper party to sue for wrongful delivery. Negotiation of a bill of lading, though only as collateral, transfers the entire property and the transferee becomes the proper party to sue for the entire loss from conversion by the carrier of the goods shipped.
    Appeal by defendant from the Circuit Court of Marion county; the Hon. E. R. Dove, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    Pope & Dreimeyer, for appellant.
    C, H. Holt and Wham & Wham, for appellee.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Justice Boggs

delivered the opinion of the court.

An action was instituted by appellee in the circuit court of Marion county against appellant to recover for the alleged wrongful delivery of a carload of hides, shipped under a uniform shipper’s bill of lading.

The declaration consists of two counts, and in substance sets forth that on December 7, 1921, the Block Coal Company, of Centraba, debvered to appellant a carload of hides to be shipped to South Wood River, Illinois, there to be debvered to said Block Coal Company under the terms of said bill of lading issued by appellant, with directions to notify the International Shoe Company of South Wood River; that for value received said Block Coal Company indorsed and debvered said bill of lading to appellee. Said declaration recites the duty of appellant to safely carry and deliver said goods, and charges a failure so to do. One count charges that said goods were thereby wholly lost to appellee, and the other charges that appellant wrongfully converted said goods to its own use.

To said declaration the general issue and two special pleas were filed.

A demurrer was sustained to the first of said special pleas, and the other was withdrawn by the defendant. A jury being waived, said cause came on for hearing before the court, resulting in a finding in favor of appellee and judgment against appellant for the sum of $7,048.22. To reverse said judgment, this appeal is prosecuted.

The record discloses that one Ben Gudder, a junk dealer in Centraba, became indebted to appellee on his promissory notes in the sum of $15,000, and in order to secure the same, on or about October 10, 1921, he executed and debvered to appellee a bill of sale of all beef and calf hides owned, controlled and possessed by him at his place of business in said city. Said bill of sale was duly acknowledged and was filed and recorded in the recorder’s office of said county.

Thereafter, on or about December 7, 1921, the carload of hides in question was shipped to South Wood River, consigned to the Block Coal Company, and a bill of lading therefor was issued to said coal company by appellant railroad, said bill of lading was, on the same date, indorsed and delivered to appellee. As a part of the same transaction, one Louis Wiseman of Alton, Illinois, drew a draft on the Wiseman Fur Company of Alton for $6,336.96, payable to the order of appellee. This draft, together with a like draft drawn by Wiseman on November 29, 1921, for the sum of $1,000, was delivered to appellee with the bill of lading, as above stated. Appellee forwarded said drafts, attached to said bill of lading, to the Alton National Bank of Alton for collection. A few days thereafter they were returned by said bank to appellee, as unpaid. Thereupon appellee brought suit against appellant, as hereinabove stated.

It is first contended by counsel for appellant that the court erred in its rulings on the propositions of law. Three propositions of law were tendered by appellee, and were all marked “Held” by the court. Nine propositions of law were submitted by appellant, the second and third were marked “Held” and the others were marked “Refused.”

Appellee’s first proposition of law is as follows: “The Court holds, as a matter of law, under the evidence in this case, that the plaintiff, by the acceptance of the draft with shipper’s order bill of lading attached,' and endorsed in blank, became the holder in due course of the said draft and bill of lading, and took title thereto, and title to the goods described in the bill of lading, attached to said drafts. ’ ’

As a general proposition, this unquestionably states a correct principal of law. Walsh, Boyle & Co. v. First Nat. Bank of Hiawatha, Kan., 228 Ill. 446; Anderson v. Keystone Chemical Supply Co., 293 Ill. 468-472; Means v. Bank of Randall, 146 U. S. 620. Counsel for appellant practically concede this to be true, but contend in their argument that “under the evidence we think the court erred in so holding. In order for the bank to acquire title to the- hides, some consideration must have passed from the bank to the seller, the Block Coal Co.” In other words, counsel contend that, because the record fails to show that any credit was given Gudder on his indebtedness to appellee, or that the Block Coal Company was in any way indebted to appellee bank, or that it was credited with the amount of said drafts, there was no consideration therefor, and that appellee was merely a collecting agent for Gudder or the Block Coal Company.

In answer thereto, appellee insists that while Gudder was indebted to appellee as above stated, he executed a bill of sale to it of the hides then owned by him, and while said transaction may not have amounted to a chattel mortgage as to third parties, it was valid as between Gudder and appellee. Appellee further insists that while said bill of lading was executed by the Block Coal Company, which was not directly indebted to appellee, yet the fact that appellee permitted said coal company to execute said bill of lading and dispose of said property was a sufficient consideration for the drafts in question and for the indorsement to appellee of the bill of lading. McCagg v. Heacock, 42 Ill. 153-156; Beasley v. Henry, 6 Ill. App. 485-487; Allmendinger v. Malcolm McDonald Lumber Co., 82 Ill. App. 166-167.

We are of the opinion that appellee’s point is well taken, and hold that the transaction in question evidences a valuable consideration for the drafts and the assignment of said bill of lading. We therefore hold that the court did not err in its ruling on said proposition.

Appellee’s second proposition, was a general holding that the evidencie, in the case warranted a finding in its favor. Whether the second proposition was correct or not depends on whether or not appellee was entitled to recover.

Appellee’s third proposition states as a matter of law that the measure of damages, in case of a recovery, is the reasonable market value of the goods at the place of destination, with interest from the time they should have been delivered, less the unpaid transportation charges, if any. This proposition states a correct principal of law, and the court did not err in so holding.

By the appellant’s first refused proposition of law, it asked the court to hold that appellee did not in good faith purchase the bill of lading in question, and did not acquire title to the property in the same. We have already sufficiently disposed of the ruling of the court thereon.

The fourth proposition of law tendered by appellant asked the court to hold that there was no consideration for said bill of sale. In our judgment the court did not err in its ruling on this proposition, for the reason that a pre-existing debt is valid consideration for the execution of a bill of sale or a chattel mortgage. Butters v. Haughwout, 42 Ill. 18; McIntire v. Yates, 104 Ill. 491-500; McLeish v. Hanson, 157 Ill. App. 605-608; First Nat. Bank of Crown Point, Indiana v. Davis, 146 Ill. App. 462-469.

In their fifth proposition, the court was asked to hold that in order for an extension of time on the indebtedness held by appellee to be a sufficient consideration for said bill of sale, said extension must have been for a definite period. There is nothing in the record to show that the extension of time was not for a definite period. We are not holding that it was necessary that the extension of time be for a definite period, but even if it were, there is nothing to show that said extension was not for a definite period. The court did not err in its ruling on this proposition.

In the sixth proposition, the court was asked to hold that the indorsement and delivery of the bill of lading did not pass title in the property in question to appellee, for the reason that the drafts .attached were only taken for collection. What we have already said with reference thereto sufficiently disposes of this proposition.

The seventh and ninth propositions were general in character, and the court did not err in refusing the same.

The eighth proposition asked the court to hold that Gudder, in his negotiations concerning the sale of said hides, was the agent of appellee and the Block Coal Company, and that his acts in that behalf were the acts of appellee and said coal company. It is the contention of appellant that Gudder was the owner of the goods in question, and that whatever was done in connection therewith was done under his direction.

In this connection, counsel insist that all of the conversations and transactions had between Gudder and Wiseman subsequent to the delivery of said drafts and bill of lading to appellee bank were competent, and that they tended to show that Gudder was in fact acting as the agent for appellee. We have examined the evidence in the record in this connection, and are of the opinion that it fails to support appellant’s contention. Counsel intimate, but do not directly charge, that the transaction smacks of fraud, but they wholly fail to point out wherein appellee was in anywise connected therewith. This being true, we hold that the court did not err in refusing to hold said proposition.

It is next contended by counsel for appellant that the judgment in the case is excessive, it being their contention that the hides in question were all of inferior grade and that some of said hides were practically worthless. Several witnessés on the part of appellant who were present when the car was unloaded at South Wood River testified to the effect that said car contained horse hides, pony hides and goat hides, as well as beef and calf- hides, and that they were all of inferior grade and only worth from lc to 3c per pound.

On the other hand, the testimony on the part of appellee is to the effect that said ear contained no horse, pony or goat hides, and that only fresh beef and calf hides were loaded in the- car, and that Wiseman, who purchased the same, was present during all the time said car was loaded, and inspected each side before it was loaded. Among the witnesses- who testified on behalf of appellee was Joseph F. Clow, agent for appellant, and whose duty it was to -check the freight that went into the car. He testified: “In checking this carload of hides, I put down each bundle -of- hides as they brought it into the car. Louis Wiseman was loading them and he was examining the hides. He inspected all of them. The rejected hides were thrown back in another pile. The others were tied in bundles and put in the car. No rejected hides'were put in the car to my knowledge. They-' could not have been put there when I was not there, because the car was sealed.”

In this connection, it should be observed that the record shows that the car stood on the siding at South Wood River for several days, and while there it remained unlocked. If the character of the' hides’ is important in the case, the record' discloses that at the time the hides were loaded they were in good condition, and that all damaged hides were rejected by Wise-man and were not loaded in the "car. While the law is that the value of the' goods at the destination is the measure of damages in. an action of trover, stiff evir dence as to the condition of the goods at the time shipped would be admissible as tending to show their condition at the place of destination, and especially would this be true in consideration of the character of hides, as there is nothing in the evidence tq show that they would deteriorate to any appreciable extent in the short period of time required for their shipment.

We are of the opinion, however, and hold that the condition of the goods at the place of destination was not material, for the reason that the record in this case, so far as appellee is concerned, shows that' the drafts in question were issued by Wiseman in payment for said goods, all of which were inspected by him as they were being loaded.

It is insisted by appellant, that its evidence which tended to show that Wiseman said to Gudder before the hides were loaded into the car that he did not believe the International Shoe Company would accept them, and that Gudder said to go ahead and send them in and he was taking the responsibility, and the testimony of Wiseman that the International Shoe Company refused to accept the same and that he so notified Gudder and was directed by Gudder to sell the hides for whatever he could get, and that the sale to said International Shoe Company for $2,000 was made on the direction of Gudder, was competent as against appellee, and that in connection therewith they had the right to show the condition of the hides at the place of destination.

The record wholly fails to show that appellee had any notice of said conversations and transactions, occurring after it had come into possession of said drafts and bill of lading, which, under the authorities, passed to it the legal title to the goods in question. We therefore hold that the court correctly ruled that this evidence was not admissible as against appellee.

If we are correct in this conclusion, then the finding of the court that appellant was liable for damages resulting from the surrender of the' goods in question without the production of the bill of lading, follows. Great Western R. Co. v. McComas, 33 Ill. 185; Charles D. Stone & Co. v. New York Cent. R. Co., 214 Ill. App. 483; Edgerton v. Chicago, R. I. & P. R. Co., 240 Ill. 311; Garden City Fan Co. v. Pittsburgh, C., C. & St. L. Ry. Co., 220 Ill. App. 126. The bill of lading in question contains the following provision in reference thereto: “The surrender of this original bill of lading, properly-indorsed, shall be required before the delivery of the property. Inspection of the property covered by this bill of lading will not be permitted unless provided by law or unless permission is endorsed on the original bill of lading or given in writing by the shipper.”

The law further is that appellee, being the holder of said duly indorsed negotiable bill of lading, its right to maintain an action thereon for a conversion of said goods cannot be questioned on the ground that the title was in someone else, not a party to the suit. Illinois Uniform Bill of Lading Act, secs. 23, 11, Cahill’s St. ch. 27, IHi 24, 12; Great Western R. Co. v. McComas, 33 Ill. 185; Edgerton v. Chicago, R. I. & P. R. Co., 240 Ill. 311; Stone v. New York Cent. R. Co., 214 Ill. App. 483; Pere Marquette Ry. Co. v. J. F. French & Co., 254 U. S. 537.

One to whom a bill of lading is negotiated, although as collateral security, is the proper party to sue for the entire loss from conversion by the carrier of the goods shipped, the bill of lading being indicia of title and operating to transfer the entire property. 10 C. J. 275.

It is assigned as error that the court erred in its rulings on the evidence. What we have heretofore said with reference to the conversations between Gudder and Wiseman sufficiently disposes of this assignment of error. We hold that the court did not err in its rulings on the evidence.

Finding no reversible error in the record, the judgment of the trial court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Boggs

license: Public Domain

text:
    Laura M. Rexroad, Appellee, v. Grand Lodge Brotherhood of Railroad Trainmen, Appellant.

    1. Fraternal beneficiary associations — conflicting evidence of time of prémium payment. A conflict in the evidence for the trial court to decide on the question of whether premiums were timely paid on a fraternal certificate exists on evidence by the beneficiary that she mailed the amount of the premium to the society in time to reach it before the due date and letter from the local treasurer acknowledging receipt, though he claimed to have received the amount after the date due.
    2. Fraternal beneficiary associations — how rules construed. The rules and by-laws of a fraternal benefit society will be liberally construed in favor of the certificate holder and any attempted forfeiture by the society will be most strictly construed against it.
    3. Fraternal beneficiary associations — how attempted forfeitures regarded. The law regards forfeitures with such disfavor that any attempted forfeiture by a fraternal society of a member’s certificate must be established as an affirmative defense by the clearest proof in the beneficiary’s action upon the certificate.
    4. Fraternal beneficiary associations — excuse for failure to prove death. The beneficiary of a fraternal certificate is not barred from recovery thereon because of failure to make proof of death within the time provided by the society constitution, where officers had due notice of the death, the beneficiary was not furnished with the form specified in the constitution for making proof, and the local treasurer failed to make a report to the general office as required by the constitution.
    5. Fraternal beneficiary associations — when action on certificate brought in time. Under a requirement of the fraternal society’s constitution that a beneficiary must bring action within six months after final rejection of her claim, her action on the certificate within six months after receipt of a letter from the general secretary rejecting the claim was timely, although action was begun more than six months after the claim had been refused by the local secretary, who did not have final authority.
    6. Appeal and error — when assignment of error waived. An assignment of error not referred to in appellant’s argument is taken as waived.
    Appeal by defendant from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.

      William P. Launtz, for appellant.
    E. L. Maher and R. W. Griffith, for appellee.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Justice Boggs

delivered the opinion of the court.

An action in assumpsit was instituted by appellee in the circuit court of Madison county to recover on a certificate of insurance issued by appellant to one Oscar, H. Rexroad, husband of appellee, who was killed in an accident on May 25, 1920.

To the declaration, which is in the usual form followed in cases brought for recovery on insurance certificates, appellant filed a plea of the general issue and two special pleas.

The first special plea avers that on account of nonpayment of dues the insured was dropped, and was at no time thereafter reinstated.

The second special plea set out section 64 of appellant’s constitution, being as follows: “All right of action upon beneficiary certificate shall be absolutely barred unless proofs of death or total and permanent disability shall be forwarded to the general secretary and treasurer, as hereinafter required within six months after the death or disability occurs; and it shall be likewise barred unless such action shall be commenced in some court of competent jurisdiction within six months after the final rejection of the claim by the Board of Insurance.” And averred that proofs of death were not furnished the general secretary and treasurer within six months after the death of the insured, and that appellee did not within six months commence a suit on said certificate after the final rejection of said claim.

A jury being waived, the cause was heard by the court, resulting in a finding and judgment in favor of appellee for the sum of $1,600, the amount of said certificate. To reverse said judgment this appeal is prosecuted.

It is first contended by counsel for appellant for a reversal of said judgment, that appellee’s intestate failed to pay the assessment for the month of May, 1920, until May 6, 1920, and that under appellant’s constitution he thereby automatically ceased to be a member of appellant order.

Sections 129 and 141 of appellant’s constitution provide as follows: Sec. 129. “The dues of members of this lodge shall be paid monthly in advance, before the first day of each month, to the treasurer or collector (when such office exists) and shall be conditional upon the class of certificate held in beneficiary department, and shall not be less than the amount of the monthly assessment levied by the general secretary and treasurer on each certificate.” And sec. 141. “Any member of this lodge failing or refusing to pay his dues and assessments, as required by section 129, becomes expelled without any notice or further action whatsoever, and at that instant his beneficiary certificate shall be void, and all rights and benefits of beneficiary membership shall cease and be determined.”

Appellee testified without objection that on April 24, 1920, she sent by mail to L. B. Hasldns, secretary and treasurer of the local lodge, to which appellee’s intestate belonged, $3 for the assessment and dues owing by the insured for the month of May. Said secretary and treasurer admits receiving the same, but insists said assessment did not reach him until May 6.

The only question then on this issue is as to whether or not the assessment was paid before May 1. Appellee not only testified that she sent the assessment on April 24, but testified without objection that she paid the May assessment and dues on that day. A letter from Hasldns was offered in evidence admitting the receipt of the $3 and also admitting the receipt of $2.75 sent by the insured a few days before his death, for the June assessment. There was therefore a conflict in the evidence, and it was for the trial court to say what the evidence proved. And in view of the evidence in the record we are not disposed to disturb his finding.

It is next contended by counsel for appellant that appellee did not furnish proofs of death within six months of the death of the insured, and that under the provisions of section 64 of appellant’s constitution, appellee is barred of a right of recovery. Said section provides: “All right of action upon beneficiary certificate shall be absolutely barred unless proofs of death or total and permanent disability shall be forwarded to the general secretary and treasurer as hereinafter required within six months after such death or disability occurs. And it shall be likewise barred unless such action shall be commenced in some court of competent jurisdiction within six months after the final rejection of the claim by the board of insurance. ’ ’

Section 64 should be read in connection with section 67 of said constitution, which provides: “Proofs of such death shall be made as follows: The secretary of the lodge of which deceased was a member shall promptly make a statement of such death on the form prescribed, and under the seal of the lodge, which statement shall be signed by the president and treasurer. * * * The secretary shall forward this certificate together with the beneficiary’s certificate and receipts for all dues and assessments of the deceased brother for the month in which the death occurred, to the General Secretary and Treasurer.” The- secretary of the local lodge failed to comply with the provisions of section 67, not making the report herein provided for, neither did he furnish appellee with the forms specified for her to fill out.

These questions were asked said local secretary and treasurer, on cross-examination:

“Question: Did you ever forward to the General Sect, and Treasurer any receipts for dues and assessments of Oscar H. Rexroad for the month of May, 1920?

' ‘ Answer: I did not.

“Question: Did you ever furnish to Mrs. Laura M. Rexroad, any forms for making proof of death, or any forms or blanks for making demand or claim under the beneficiary certificate?

‘ ‘Answer: I did not. She had no right to any. Mr. Rexroad was not a member, having been suspended at the time of his death.” .

The law is that: ‘ ‘ The rules and by-laws of a benefit society should be liberally construed, and in case of an attempt by the society to declare a forfeiture will be most strictly construed against it.” Coverdale v. Royal Arcanum, 193 Ill. 91; Union Mut. Acc’t Ass’n v. Frohard, 134 Ill. 228; Kohler v. Amalgamated Ass’n of St. & Elec. Ry. Employees of America, 168 Ill. App. 344-346.

Forfeitures are regarded with disfavor in law, and the party claiming the forfeiture must establish it as an affirmative defense and by the clearest proo£. Railway, etc., Mut. Aid & Benefit Ass’n v. Tucker, 157 Ill. 194-200.

The record discloses that appellee, within five days after the death of the insured, notified appellant’s officers of his death, and it being conceded that appellee was not furnished with the form specified in said constitution for the making of proofs of death, and the said secretary and treasurer of the local lodge having failed to make a report to the general secretary and treasurer, as specified in appellant’s constitution, we hold that appellee is not barred of a right of recovery for failure to make proofs of death.

It is next contended by appellant that the suit in question was not begun within six months from the date of the final rejection of her claim, and that under said section 64 of appellant’s constitution, said suit is barred.

While the record discloses that the secretary and treasurer of the local lodge had written appellee that-her husband had been dropped from appellant order for nonpayment of dues, still it was not for him to finally pass on said claim. The first notice that appellee received of the rejection of her claim, from the general officers of appellant order, was a letter which she received from the general secretary and treasurer. This letter was written on November 18, 1920, which was within less than six months of the commencement of said suit. We hold, therefore, that appellee’s claim is not barred for failure to bring suit within the time specified.

It was also assigned as error that the trial court failed to pass on the proposition of law submitted by appellant.

This assignment of error was not referred to in appellant’s argument, and is therefore, under the rules of this court, taken as waived.

Finding no reversible error in the record, the judgment of the trial court will be affirmed.

Judgment affirmed.


author: Me. Justice Boggs

text:
    In the Matter of the Estate of Harry Crawford, Deceased. Helen Crawford, Appellant, v. Helen Bufe Crawford, Appellee.

    1. Gifts — requirements of inter vivos. To establish a gift inter vivos clear and convincing proof must be offered of delivery of the property by the donor to the donee with intent to pass title.
    2. Gifts — requirements for causa mortis. To constitute a gift causa mortis it must be made in view of the donor’s death, to take effect only in event of the donor’s death of his existing disorder, and the subject thereof must be actually delivered.
    3. Tenants in common and joint tenants — deposit in lanTs not creating joint tenancy. A deposit in a bank by a husband and wife in their names as “Mr. and Mrs.,” but without complying with Cahill’s St. eh. 76, K 2, requiring a written agreement by the parties or bank to create a joint tenancy, even though there were oral statements that the wife should take all in case of the death of her husband and that was his intention, will not create a joint tenancy in such deposit and the wife will be compelled after her husband’s death to turn half the remaining deposit to his estate.
    Appeal by plaintiff from the Circuit Court of Madison county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1923.
    ^Reversed and remanded.
    Opinion filed March 10, 1924.
    B. J. O’Neill, for appellant.
    Feed Tunnell, for appellee.

       ^Received from clerk of Appellate Court, August 8, 1927.

   Me. Justice Boggs

delivered the opinion of the court.

One Harry Crawford died intestate February 28, 1923, at his home in East Alton. Said decedent had been twice married; by his first wife, Agnes Crawford, lie had one child, a daughter, Helen Crawford, appellant herein. Agnes Crawford obtained a divorce from said Harry Crawford on December 19, 1917, and the custody of the daughter, appellant herein, was awarded to her in said divorce proceedings. Thereafter, the said Harry Crawford was • married to Helen Bufe Crawford, appellee herein, who, with appellant, the daughter, survived him as his widow and only heir at law. -■ -

Appellee was granted letters of administration on the estate of said deceased on March' 20, 1923. On May 18, 1923, appellant -filed a petition in the probate court, praying for an order on appellee as such administratrix to file a true and perfect inventory of the assets of said estate. The court, on the hearing, found that appellee was in possession of $1,020, which was on deposit in the bank at East Alton at the time of the death of her said husband; and, as such administratrix, she was ordered to file a supplementary inventory showing said sum of money as assets of said estate. To reverse said order, appellee prayed an appeal to the circuit court of said county. The case came on for hearing in the circuit court, and an order was entered dismissing said petition and vacating said order of the probate court. To reverse, the order of the circuit court, appellant prosecutes this appeal.

The record disclosed that on December 1, 1922, Harry Crawford and appellee, his wife, went to the Illinois State Bank of East Alton and deposited $1,200, in the name of “Mr. and Mrs. Harry Crawford.” On January 27, 1923, a further deposit was made of $20. On February 12, 1923, a check was drawn for $100, payable to the order of the drawer, and signed “Mrs. Harry Crawford, by cashier.” This check was indorsed by Harry Crawford, and was paid through the bank. On February 22 a check was drawn for $100, payable to the order of “Cash,” and signed by appellee. On March 2, being two days after the death of said deceased, appellee checked out $100, and thereafter, on March 5, she checked out the balance of $920.

At the time of the death of said deceased, there was on deposit in said bank the sum of $1,020, and it is the contention of counsel for appellant that this balance belonged to the estate of said deceased and should be inventoried as such. On the other hand, counsel for appellee insists that said balance belongs solely to appellee; that the evidence is sufficient to show a gift inter vivos and also a gift causa mortis; and further, that under section 2, chapter 76, Cahill’s Revised Statutes, said deposit was a joint deposit, and as such passed to appellee as survivor.

To establish a gift inter vivos, it is necessary to prove the delivery of the property by the donor to the donee with an intent to pass the title, and the great weight of authority is to the effect that the proof to sustain the same must be clear and convincing. Rothwell v. Taylor, 202 Ill. 226-230, and cases there cited. The evidence in this record fails to show a gift inter vivos as to the entire deposit, for the reason that said deceased, as well as appellee, evidently had full authority to check on said account.

There are three requisites to constitute-a gift causa mortis: First, the gift must be made with a view of the donor’s death; second, it must be made to take effect only in the event of the donor’s death of his existing disorder; third, there must be an actual delivery of the subject of the donation. Telford v. Patton, 144 Ill. 611-619; Story’s Eq. Juris. 607a; Barnes v. People, 25 Ill. App. 136; Roberts v. Draper, 18 Ill. App. 167; Ridden v. Thrall, 125 N. Y. 572. There is some oral testimony in the record which in a way tends to show* that deceased, in making said deposit, had in mind" fixing it so that appellee could draw the money should anything happen to him. This, however, under the authorities above cited, would not establish a gift causa mortis.

It has been frequently held that the deposit of money by one person, in the name of himself and another, with that other’s knowledge, payable to either, or to the survivor, creates a joint interest in said fund in said parties. Kelly v. Beers, 194 N. Y. 49; Kennedy v. McMurray, 169 Cal. 287; Blick v. Cockins, 252 Pa. 56; Negaunee Nat. Bank v. Le Beau, 195 Mich. 502; Marston v. Industrial Trust Co. (R. I.), 107 Atl. 88; McLeod v. Hennepin County Sav. Bank, 145 Minn. 299; Illinois Trust & Savings Bank v. VanVlack, 310 Ill. 185-192. We are of the opinion that the deposit in question to the credit of “Mr. and Mrs. Harry Crawford” would, without any further proof, create a joint interest in said funds in said parties, with the right of survivorship, but for the provisions of the statute relating to joint rights and obligations. Section 2' of said statute is as follows:

“Except as to executors and trustees, and except also where by will or other instrument in writing expressing an intention to create a joint tenancy in personal property with the right of survivorship, the right or incident of survivorship as between joint tenants or owners of personal property is hereby abolished, and all such joint tenancies or ownerships shall, to all intents and purposes, be deemed tenancies in common; provided, that when a deposit in any bank or trust company transacting business in this State has been made or shall hereafter be made in the names of two or more persons payable to them when the account is opened or thereafter, such deposit or any part thereof or any interest or dividend thereon may be paid to any one of said persons whether the other or others be living or not, and when an agreement permitting such payment is signed by all said persons at the time the account is opened or thereafter the receipt or acquittance of the person so paid shall be valid and sufficient discharge from all parties to the bank for any payments so made.” Cahill’s St. ch. 76, if 2.

This section expressly abolishes joint tenancies in personal property, except where the same are evideuced by writing. The entry of the deposit in question on the books of the bank does not by its terms provide that the survivor of said depositors should have the right to withdraw said funds. "While, except for the provisions of the statute above referred to, a deposit of the character we have here would pass to the survivor upon the death of one of said parties, it is for the reason that at common law a joint tenancy in personal property carried with it the right of survivor-ship.

Counsel for appellee strongly relies on the case of Erwin v. Felter, 283 Ill. 36, as sustaining appellee’s claim to the ownership of the fund in question. In that case the court, at page 39, stated that “joint tenancy is not confined to real estate, but may exist in personal property,” citing Attorney General v. Clark, 222 Mass. 291.

In the later case of Illinois Trust & Savings Bank v. VanVlack, supra, the court, in discussing a question of this character, held the language above quoted had been inadvertently used, and says at page 189: “The appellant contends that joint tenancies in personal property as well as real estate were abolished by the statute of 1821 concerning partitions and joint rights and obligations, and he refers to the case of Hay v. Bennett, 153 Ill. 271, .in which it was held that the common-law rule of survivorship in respect to personal property jointly owned does not prevail in this State. In the recent case of Erwin v. Felter, 283 Ill. 36, it was said that ‘a joint tenancy is not confined to real estate but may exist in personal property,’ without mention of this decision or the statute, which were not relied upon or referred to by counsel in argument or mentioned even in the petition for rehearing. It was not intended to overrule the decision or disregard the statute, but the statute was regarded as not applicable to the contracts involved in that case. It was intended .to hold that the right of survivorship stipulated in the certificates of deposit as an essential part of them was not unlawful, and the statement that a joint tenancy may exist in personal property should not have been made without qualification or limitation.” .. ..

■The effect .of the decision in Erwin v. Felter, supra, was to hold that the written.instrument evidencing the deposit in the bank gave to Mrs. Rusk and her daughter or either of them the right to withdraw the whole or any part of said funds during their joint lives, and the right to the survivor to withdraw any balance that might remain of said deposit, and .the certificates of deposit issued, by the bank obligated the bank to pay to. either of said, parties, during the life of both, the whole or any part of said fund, and on the death of Mrs. Rusk, to pay to her daughter, Mrs. Edwards, the funds represented by said certificates of deposit. In other words, it was held to be a contractual relation between .the bank and said parties, and the court enforced it. In the later case of Illinois Trust & Savings Bank v. VanVlack, supra, the court, while holding that some of the language used in Erwin v. Felter was inadvertently used, held that the decision on the contractual relation above referred to was right.

. In the case of Illinois Trust & Savings Bank v. VanVlack, supra, the written evidence abundantly sustained the finding of the. court, that a right of survivorship was created, in the deposit there in question, the written evidence in the case coming directly within the provisions of the statute above quoted: . ,

.. The deposit here in question is an ordinary deposit to the credit of appellee and her husband. There, is no written evidence, executed either, by .the parties making the deposit or by the bank or its officers, or other: wise, indicating an intention on the part pf said parties that the survivor should have the right and authority to withdraw any balance that might remain of said fund in said bank at the time of the death of the other.

This being the state of the record, we hold that, under the statute above referred to, said balance of $1,0’20 in the bank at the time of the death of said deceased would pass, one-half to his estate, and one-half to appellee, and that appellee, as such administratrix, should charge herself with one-half of said fund, as a part of the assets of the estate of said deceased. This holding is in keeping with the policy of our law, as joint tenancies have always been looked upon with disfavor in this country. Mustain v. Gardner, 203 Ill. 284; 7 R. C. L. 813; 23 Cyc. 485.

For the reasons above set forth, the judgment of the trial court will be reversed and the cause will be remanded for further proceedings in harmony with this opinion.

Judgment reversed and cause remanded.


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    City of Mascoutah, Appellant, v. George Donner, Appellee.

    1. Appeal and error — necessity of filing brief. Under rules of the Appellate Court a cause may be reversed pro forma for failure of the appellee to file a brief.
    2. Highways and streets — extent of legislative control. Subject to constitutional limitations the control of the legislature over public highways is absolute and it may give jurisdiction over them to such authorities as it sees fit.
    3. Municipal corporations — validity of ordinance to protect street surface. Under Cahill’s St. ch. 24, V 65, a city has authority to protect the surface of its streets from damage by passing an ordinance forbidding the use thereof by vehicles with certain described objectionable tires, providing said ordinance is not unreasonable or oppressive.

      4. Municipal corporations — burden of proving ordinance unreasonable. One who attacks the validity of an ordinance has the burden of overcoming presumptions in favor of its validity by clear proof of its unreasonableness.
    5. Municipal corporations — presumptions in favor of ordinance for street use. Without record showing to the contrary, it will be presumed that the city council in passing an ordinance limiting the use of its streets to vehicles without certain objectionable tires determined that such tires would damage the street surface in going over it.
    6. Municipal corporations — validity of ordinance limiting tires used on streets. A regularly passed ordinance of a city council forbidding the use of its streets to tractors, motor trucks and similar vehicles if they have projections radially beyond the traffic surface of the tires, and providing fine for infringement, is a valid exercise of the city's power over its streets.
    Appeal by plaintiff from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.’ Heard in this court at the October term, 1923.
    Reversed and remanded.
    Opinion filed March 10, 1924.
    Lill & Lill, for appellant.
    A. B. Davis, for appellee.

       Received ■ from clerk of Appellate Court, August -8, 1927.

   Mr. Justice Boggs

delivered the opinion of the court.

Appellee was arrested and tried before a justice of the peace of St. Clair county on a complaint charging him with the violation of the following ordinance of the City of Maseoutah: “Section 1. That on and hereafter no metal tired vehicle, including tractors, motor trucks, traction engines and other similar vehicles, shall operate upon any paved or oiled street in the City of Maseoutah, Illinois, if such vehicle has on the periphery of any of the road wheels any block, stud, flange, cleat, ridge, bolt, lug or any projection of metal or wood which projects radially beyond the tread or traffic surface of the tire, except that this prohibition shall not apply to tractors or traction engines equipped with what is known as caterpillar tractors, when such caterpillar does not contain any projection of any kind to injure the surface of the road.” Section 2 of said ordinance provides for a fine of not less than $10 nor more than $50 upon conviction of a violation thereof. Appellee was found guilty by said justice, and an appeal was taken by him to the circuit court of said county.

The cause was tried in the circuit court on a stipulation of facts, in and by which it was stipulated that said ordinance was duly passed and published in conformity with the law; that appellee was the owner of a certain tractor “having on its periphery of its road wheels cleats of metal, projecting radially beyond the tread or traffic surface of the tire”; that on July 31, 1922, appellee drove said tractor over one of the oiled streets of said city, the same having been oiled about six weeks prior thereto; that appellee lives in said city and owns a farm some distance from its corporate limits, and that there “was no way by which the said Gfeorge Bonner (appellee) could drive his said tractor from his home in the city to his said farm without driving same over said oiled streets in said city.” It was further stipulated “that the principal question involved in this case is whether or not the said ordinance of said city is a valid ordinance, and whether or not said city had a legal right, under the statutes and laws of the State of Illinois, to enact said ordinance. ’ ’

Appellee filed no brief in this court, and under our rules we would be warranted in reversing the case pro forma, but in view of the fact that it is of importance to appellant and its citizens that the validity of said' ordinance be determined, we have deemed it best to consider the case on its merits.

Subdivision 7 of section 1, art. V, ch. 24, If 65, Ca-hill’s Revised Statutes, provides that city councils in cities and the president and board of trustees in villages shall have the power: “To lay out, to establish, open, alter, widen, extend, grade, pave or otherwise improve streets, alleys, avenues, sidewalks, wharves, parks and public grounds, and vacate the same.” Subdivision 15 of said section provides that said cities and villages shall have the power “to regulate and prevent the throwing or depositing of ashes, offal, dirt, garbage, or any offensive matter in, and to prevent injury to, any street, avenue, alley or public ground.” Subject to constitutional limitation, the control of the legislature over the public highways is absolute, and it may give jurisdiction over them to such authorities as it sees fit. Illinois Malleable Iron Co. v. Lincoln Park Com’rs, 263 Ill. 446-450, citing McCormick v. South Park Com’rs, 150 Ill. 516; Cicero Lumber Co. v. Town of Cicero, 176 Ill. 9; Mitchell v. Lowden, 288 Ill. 327-340.

It would follow, therefore, from a consideration of the cases cited, that the ordinance in question would be valid, unless its provisions are unreasonable or oppressive. City of Chicago v. Shaw Livery Co., 258 Ill. 409; City of Chicago v. Mayer, 290 Ill. 142. The presumption of law is in favor of the validity of an ordinance passed in pursuance of statutory authority, and the burden is on the one questioning it to show clearly that it is unreasonable. City of Chicago v. Shaw Livery Co., supra; City of Chicago v. Mayer, supra; City of Chicago v. Hebard Express & Van Co., 301 Ill. 570.

In applying this principal of law it was held by the Appellate Court of the Second District, in Harrison v. City of Elgin, 53 Ill. App. 452 that an ordinance providing that “no person shall, by himself, his servant or his agent, drive, propel or cause to be driven or propelled, upon or along any street in the city of Elgin, any loaded vehicle which Avith its load weighs 3,500 pounds or upAvard, unless the felloes and tires upon the wheels of such Apellide shall be three inches or more in Avidth” Avas valid. The court, in discussing the question at page 453, says: ‘ Section 63 of the act relating to cities and villages, gives the power to such municipal corporations to regulate the use of streets. The exercise of that power may in a measure restrain the business of hauling. Teamsters engaged in heavy hauling may suffer some inconvenience in being prevented from driving on certain streets, a regulation in force in all of the large cities. Before an ordinance which regulates the manner in which streets shall be used, shall be held void, it must appear that it is unreasonable and oppressive.

“As we look at the ordinance, it is held but a wise and lawful regulation. To require persons hauling greater loads than 3,500 pounds, to use wagons with wheel tires three inches wide, will restrain teamsters using wagons with wheel tires of a less width to loads of less weight than 3,500 pounds, but in our view, the city has the power to so restrain for the purpose of protecting its streets.” This case is cited in 28 Cyc. page 911.

This court, in the case of City of Carmi v. Miller, 173 Ill. App. 283, held an ordinance valid which provided “that it shall be unlawful for any person or persons to run any traction engine on or across any brick or other improved street within the city of Carmi without placing two inch boards under the wheels of the same.”

And in the case of City of Macomb v. Jones, 158 Ill. App. 271, the Appellate Court of the Third District held valid an ordinance making it unlawful “for any person or persons either by himself, agent, employee, or employees, to run across, along or upon any of the paved streets in the city of Macomb, any traction engine, without using sound, strong planks, two of said planks to be kept continuously under the wheels of said engine while upon the pavement in such manner as to keep the wheels from touching said pavement.” The court, in discussing the ordinance at page 274, says: “It is next insisted that the ordinance must be held invalid because it does not come within the class of ordinances which a municipality is empowered to enact under its general police powers to preserve the health, morals or safety of the community, as such police powers are sometimes defined. Without determining whether the ordinance in question may be upheld as having been enacted by the municipality in pursuance to its general police powers as thus defined, it is sufficient to say that the enactment of such an ordinance may be justified as being among the express powers conferred by the legislature upon municipalities in this state.”

There is nothing in the stipulation showing the ordinance to be unreasonable or oppressive. So far as the facts stipulated are concerned, there was no occasion for the citizens of Mascoutah keeping engines of this character in said city, or of operating them over or along its streets. There being nothing in the record to the contrary, it will be presumed that the city council, in passing said ordinance, determined that engines having wheels of the character specified would damage the streets if operated over or along the same.

We therefore hold that the ordinance is valid, and that the court erred in finding defendant not guilty, on the facts as stipulated.

For the reasons above set forth, the judgment of the trial court will be reversed and the cause will be remanded.

Reversed and remanded.


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    Henry Carstens, Jr., Appellant, v. Kienstra & Kesl, Garnishees, and Curtis James, Claimant, Appellees.

    1. Justices op the peace — jurisdictional amount in garnishment. Cahill’s St. eh. 79, plainly provides the statutory method for determining the amount beyond which the justice has no jurisdiction in garnishment proceedings, so that if the amount of the garnishor’s demand is above $300, the justice has no jurisdiction.
    2. Justices op the peace — acts beyond jurisdiction as void. The acts of a justice in cases not provided for by statute are null and void.
    3. Justices op the peace — effect of consent to jurisdiction. Consent of the parties will not give a justice jurisdiction in cases in which the statute gives him none.
    Appeal by plaintiff from the .Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    R. F. Tuhnell, Jr., for appellant.
    Terry, Gueltig & Powell, for appellees.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Justice Boggs

delivered the opinion of the court.

On November 28, 1919, appellant recovered a judgment against one Willis Weeks before a justice of the peace in Madison county for the sum of $300 and costs of suit. On October 28, 1922, garnishment proceedings were instituted by appellant before said justice of the peace, and appellees Kienstra & Kesl were served as garnishees. The demand was for the amount of said original judgment rendered by said justice, with the added interest thereon and costs of suit, amounting, as indorsed on the summons, to the sum of $358.30. A trial was had before the justice, and a judgment rendered in favor of appellant and against said garnishees for said amount.

The cause was appealed by appellees Kienstra & Kesl, to the circuit court of said county. In the circuit court, appellee Curtis James entered his appearance and claimed the funds in the hands of said garnishees, under an alleged assignment. He was made a party to the suit, and on the trial a verdict was rendered in favor of appellant. On motion of appellee Curtis James, the court set aside the verdict and dismissed said garnishment proceeding for want of jurisdiction. To reverse said judgment this appeal is prosecuted.

The only question raised by the assignment of errors is as to whether the justice before whom said garnishment proceeding was instituted had jurisdiction to entertain the same.

It is conceded by counsel for appellant that the demand in said garnishment proceeding exceeded $300. In other words, the demand was for the judgment of $300 with interest thereon from the date of its rendition to the commencement of the garnishment proceeding, together with the costs incident thereto, amounting in all to the sum of $358,30, as indorsed on the summons in the garnishment proceeding.

It is the contention of counsel for appellant that this question is to be determined by ascertaining whether the original claim for which judgment was entered before the justice exceeded his jurisdiction; that, if it did not, the justice would have jurisdiction,, even though the added interest and cost increase the demand to a sum in excess of $300. It is the theory of counsel for appellant that the added interest and costs are merely incident to the amount of the original claim on which this judgment was entered, and that the garnishment proceeding is only a statutory mode of collecting the judgment. In support of this- contention, counsel cites Home Ins. Co. of New York v. Kirk, 23 Ill. App. 19; Nesbitt v. Dickover, 22 Ill. App. 140.

The opinions in these cases were both filed prior to the enactment of the Justices and Constables Act of 1905. In the Justices and Constables Act in force prior to 1905 no reference was made to the amount of the demand in a garnishment proceeding. In Nesbitt v. Dickover, supra, the court in discussing this question at page 144 says: “The statute is silent on the subject of the amount of the justice’s jurisdiction in cases of garnishee on judgment recovered before him unless the case is covered by the general statute on jurisdiction, which we do not think it is.” In paragraph 16 of section 1 of article II, chapter 79, Cahill’s Revised Statutes, being the chapter on Justices and Constables, it is stated: “In garnishment by attachment or summons the amount of the claim of garnishor, and not the amount of the answer of the garnishee, shall determine the jurisdiction.”

This provision of the statute is so plain that it needs no construction. It provides that the amount of the garnishor’s demand determines the jurisdiction of the justice. The demand in this case being in excess of $300, it necessarily follows that it was in excess of the jurisdiction of the justice.

The law further is that: “A Justice of the Peace can exercise no powers except those conferred by the Statute, and whenever he assumes jurisdiction in a case not provided for by statute his acts are null and void.” “Where a Justice of the Peace has not jurisdiction of the subject matter of the proceeding, such jurisdiction cannot be conferred by consent of the parties.” Williams v. Blankenship, 12 Ill. 122. See also Hull v. Webb, 78 Ill. App. 617; Young v. Mueller Bros. Art & Mfg. Co., 124 Ill. App. 94.

The court in the latter case says, page 96: “The demand of the plaintiff as stated in the summons issued by the justice of the peace was ‘for a demand not exceeding $200.’ The jurisdiction of the justice depends upon the amount claimed by the plaintiff in the summons. Raymond v. Strobel, 24 Ill. 113; Hull v. Webb, supra.

The circuit court did not err in granting a new trial and in allowing appellee’s motion to dismiss the garnishment proceeding. Douglas v. Dee, 194 Ill. App. 612.

For the reasons above set forth, the judgment of the trial court will be affirmed.

Judgment affirmed.


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    R. S. Barnsback, Defendant in Error, v. T. H. Mastin & Company and Charles H. Hanger. T. H. Mastin & Company, Plaintiff in Error.

    1. Process — invalidity of serving partnership as corporation. Process served upon a partnership in the manner prescribed for service upon a corporation is invalid unless the defendants entitled to raise the question are estopped from doing so by their conduct.
    2. Estoppel — acts necessary to create corporation by estoppel. Unless a partnership has in some way pleaded upon the record as a corporation or is shown to have conducted its business as a corporation, it will not be estopped from denying jurisdiction over it on service had upon it in the manner prescribed for corporations.
    3. Estoppel — how question raised. There must be pleading and proof thereunder in order to raise the question that defendant partnership is estopped to deny service upon it as a corporation.
    Error by defendant to the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1923.
    Reversed and remanded.
    Opinion filed March 10, 1924.
    Burroughs & Ryder, for plaintiff in error.
    Terry, G-ueltig & Powell, for defendant in error.

       Received from clerk óf Appellate Court, August 8, 1927.

   Mr. Justice Boggs

delivered the opinion of the court.

Defendant in error brought an action in assumpsit in the circuit court of Madison county against plaintiff in error and one Charles H. Hanger. The declaration contains the common counts only. Process was issued and was served on Charles H. Hanger personally and the sheriff’s return as to service on plaintiff in error is as follows:

“I have duly served the within writ upon T. H. Mastín & Co. and by delivering a true copy hereof to Robert S. Davis, agent for said company, the president, secretary or treasurer of said T. H. Mastín & Co. not found in my county, as I am therein commanded, this the 6th day of March, A. D. 1923.”

A special plea on limited appearance was filed by Hanger and the suit was afterwards dismissed as to him.

The following plea of jurisdiction was filed by the persons therein named:

“And now, each in his own proper person, comes Thomas Mastín, Henry Burr, William Drennon, Thomas Lonergan, Fred Schafer, and Harry Minty, and appear specially for the purpose of this plea only, and defend, etc., and say that T. H. Mastín & Co., the above named defendant, is a co-partnership name under which they are doing business; that Thomas Mastín, Henry Burr, William Drennon, Thomas Lonergan, Fred Schafer and Harry Minty are copartners, doing business under the firm name and style of T. H. Mastín & Co.; that at the time of the commencement of said action of said Roy S. Barnsbaek, the said Thomas Mastín, Henry Burr, William Drennon, Thomas Lonergan, Fred Schafer and Harry Minty were, and from thence hitherto have been, and still are, residing in the City of Kansas City, in the State of Missouri, and that neither of them was at the time of the commencement of said action, and from thence hitherto has not been, and is not now, a resident of Illinois; that said copartnership has not, nor does any member thereof have a place or places of business in the County of Madison in the State of Illinois; that neither of said members nor the said copartnership has ever had a place or places of business in said Madison County in the State of Illinois; that neither - of said copartners was personally found or personally served with process in said action in the County of Madison in the State of Illinois, or in any county of said State of Illinois, but that the only alleged service of process herein upon them, or either of them, or the said copartnership is an alleged and purported service of process of summons upon an alleged and purported agent of T. H. Mastín & Co., in the said County of Madison and State of Illinois; and this they are ready to verify; wherefore they pray judgment if the Court here will take cognizance of the action aforesaid.”

A general demurrer filed to said plea by defendant in error was sustained by the court, and said parties having elected to stand by their said plea, a hearing was had before the court without a jury, a finding was made in favor of the defendant in error, and judgment was rendered against plaintiff in error for the sum of $1,200 and costs. To reverse said judgment this writ of error is prosecuted.

The sole question raised by the assignment of errors is, whether under the pleadings as disclosed by the record, plaintiff in error was legally served with process so as to authorize the court to enter judgment against it.

The service and return in question follow section 8 of the Practice Act, which provides the method for obtaining service on private corporations. Section 8, ch. 110, Cahill’s St. 1921. It .is the contention of counsel representing plaintiff in error that it is a co-partnership and that section 13 of the Practice Act, Cahill’s St. ch. 110, If 13, must be followed in order to obtain jurisdiction of a nonresident copartnership, and that the service in question does not comply with its provisions.

A second contention of plaintiff in error is that under the averments of said plea, which is taken as true for the purpose of this hearing, it had no place of business in Madison county at the time of said purported service, and had none at any time prior thereto, and that under the provisions of section 13, no service could have been had on it so as to have warranted the rendition of a personal judgment against it.

Counsel for defendant in error concede that the service had on plaintiff in error was not under section 13, and practically concede that unless plaintiff in error is a corporation or is estopped to deny that it is a corporation the service is not good.

In this connection defendant in error’s counsel call attention to the fact that the parties filing the plea in question do not specifically aver that plaintiff in error is not a corporation. However, we are of the opinion and hold that it is sufficiently set forth that plaintiff in error is a partnership, and that the service and return were not sufficient to confer jurisdiction on the trial court to enter judgment, unless it be that the parties filing said plea were estopped to raise the question.

Counsel for defendant in error contend that the record shows: First. That plaintiff in error contracted with him by the name T. H. Mastín & Co., in connection with the claim sued on in this case. Second. That it appeared and filed its plea by that name. Third. That it has assumed a corporate name and has been exercising the functions of a corporation and" that by reason of these things it is now estopped to deny that it is a corporation so far as this suit is concerned.

In support of this contention, counsel cite the following cases: United States Exp. Co. v. Bedbury, 34 Ill. 459, 467; Chicago City Ry. Employees’ Mut. Aid Ass’n v. Hogan, 124 Ill. App. 447; Fitzpatrick v. Butter, 160 Ill. 282; Lawrence v. Nyberg Automobile Works, 162 Ill. App. 348; Crystal White Soap Co. v. Roseboom, 91 Ill. App. 551; Chadwick v. Dicke Tool Co., 186 Ill. App. 376; Fields v. United Brotherhood of Carpenters & Joiners, 60 Ill. App. 259; Auburn Cycle Co. v. Foote, 69 Ill. App. 644; 1 Fletcher Cyclopedia Corporations 660; Goddard v. Chicago & N. W. Ry. Co., 202 Ill. 362; People v. Carp, 180 Ill. App. 673.

We have examined these cases and are of the opinion that the record in this case does not warrant the conclusion that the parties filing said plea are estopped to deny that plaintiff in error is a corporation. As before stated, the declaration consists of the common counts only, and there is no averment therein to the effect that the plaintiff in error contracted with the defendant in error, using the name of T. H. Mastín & Co.

It will further be observed, on an examination of said plea, that T. H. Mastín & Co. does not appear as the defendant, but the same purports to be filed by the individuals therein named. There is no bill of exceptions, and there is nothing in the record from which it can be said that plaintiff in error has assumed the functions of a corporation. In nearly all, if not all, the cases above cited, there was evidence to the effect that in one way or another the purported corporation had in fact been assuming and exercising the functions of a corporation, or had contracted with the party bringing the suit by a corporate name.

In Chicago City Ry. Employees’ Mut. Aid Ass’n v. Hogan, supra, the court, in discussing a question of this character at page 450, says:

“We think appellant is estopped to deny that it was a corporation at the time it issued this certificate. Its name, as set forth in the certificate, imports that it is a corporation. It signed that, contract by its president and by its secretary, and attested to the same with its seal. ■ In the body of the contract the constitution and by-laws of appellant are referred to as fixing the conditions and the amount of a recovery.

“In U. S. Express Co. v. Bedbury, 34 Ill. 459, it was held that where an association of persons who assumes a name which imports a corporate existence, and by it exercises corporate powers, they will not lie heard to deny their corporate existence. In Fitzpatrick v. Rutter, 160 Ill. 282, the Switchmen’s Mutual Aid Association of North America was sued as a corporation, upon a certificate similar to the one here in evidence, and judgment, by default was taken against it. A creditor’s bill was filed upon the judgment. The association interposed the defense that .while it was a voluntary association, it had been sued at law as a corporation, and therefore the trial court had no jurisdiction over the person of the defendant association when it entered the judgment. The court answers this argument by saying: ‘But we think from an examination of the record, the Appellate Court and the trial court were justified in finding, from the evidence, that the association was a de facto corporation, and properly served with process. The Switchmen’s Mutual Aid Association of North America had an organization consisting of directors, a president, secretary and other officers. Its name implied a corporate body.’ * * * See, also, Bacon Ben. Soc., secs. 40 and 41; Morawetz Corp., sec. 752; Williams v. Stevens Point L. Co., 72 Wis. 487; Bon Aqua I. Co. v. Standard F. I. Co., 34 W. Va. 764; Hamilton v. C., M. & P. Ry. Co., 144 Pa. St. 34; Independent Order, etc. v. Paine, 122 Ill. 625.”

In Fitzpatrick v. Rutter, supra, it was held by the Supreme Court that an association whose name implies a corporate body, and which has authenticated its acts by a common seal and exercised corporate powers, is estopped to deny its corporate existence.

In Auburn Cycle Co. v. Foote, supra, the court says, page 648: “It is urged that there was no evidence showing that the defendant is a corporation. The defendant as a corporation filed an appeal bond upon its appeal to the Superior Court, the defendant also appeared in the Superior Court and moved to strike the cause from the short cause calendar. The testimony at the trial shows a holding out by the defendant that it is a corporation, by dealing, and purchasing goods as such.”

It will therefore be observed that in the cases referred to, the" record in some way discloses corporate acts on the part of the organization charged with being a corporation.

We are therefore of the opinion and hold that the court erred in sustaining a demurrer to said plea. If the defendant in error desires to show that plaintiff in error is estopped to deny that it is a corporation by reason of its having assumed corporate functions, that question must in some way be brought into the record. In other words, it must be determined from the evidence to be offered by said parties on an issue presenting that question.

For the reasons above set forth, the judgment will be reversed and the cause will be remanded.

Reversed and remanded.


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    David H. Zbinden, Appellee, v. DeMoulin Brothers & Company and E. R DeMoulin, Appellants.

    1. Evidence — physician’s testimony usurping jury function. In action for damages for negligently 'causing plaintiff’s injuries, it was error to permit his doctor to testify that the negligent act had caused the injury as that was a matter in dispute which it was the jury’s function to decide.

      2. Appeal and error — raising misjoinder of parties on appeal. An objection for misjoinder of parties, not raised by demurrer, plea in abatement, or motion in arrest of judgment, will not be heard for the first time on appeal.
    3. Instructions — weight of evidence as jury function. An instruction that positive testimony is entitled to greater weight than negative testimony erroneously invades the right of the jury to decide on the weight of evidence.
    4. Instructions — corroboration of untruthful witness. An instruction that if the jury believed any witness was wilfully testifying falsely or exaggerating to deceive them, they could disregard the evidence unless corroborated by evidence ‘ ‘ which you believe, ’ ’ is erroneous in requiring the corroborating evidence to be that which they believe.
    5. Instructions — materiality of false statement. An instruction that if the jury believed any witness was wilfully testifying falsely or exaggerating to deceive them on a material element of the case they might disregard the testimony, unless corroborated, is erroneous in omitting the statutory requirement that the false testimony be material to the issue.
    6. Negligence — instruction assuming injury was inflicted. An instruction is erroneous which in effect assumes that an injury sued on was inflicted although that fact was in dispute.
    7. Negligence — instruction on negligence to conform to declaration. An instruction in an action for negligence should require that the negligence considered by the jury be that charged in the declaration.
    8. Appeal and error — waiver of assignment of error. Unless error assigned for a refusal of instructions offered by appellants is argued, it is deemed waived.
    9. Master and servant — playing trick as outside employment scope. A corporation is not liable to a third person for injuries from a trick wilfully played upon him by an employee, since playing a trick is outside the scope of the servant’s employment.
    10. Master and servant — how far master liable for servant’s negligence. A master is liable for acts of his servant done within the general scope of his employment while engaged in his master’s business with a view to furthering it, whether he acts negligently or wantonly.
    Appeal by defendants from the Circuit Court of Bond county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1923.
    Reversed and remanded.
    Opinion filed March 10, 1924.
    Noleman, Smith & Dallstream, for appellants.
    Hiles, Newell & Brauer, for appellee.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Justice Boggs

delivered the opinion of the court.

This appeal is prosecuted by appellants from a judgment of the circuit court of Bond county against them.in favor of appellee for the sum of $5,000.00.

DeMoulin .Brothers & Company operate-a factory in G-reenville, Illinois, in which they manufacture uniforms, regalia and lodge paraphernalia. One of the articles manufactured by them was a chair with a battery attachment on the under side of the seat. The points of contact were fastened to the seat of the chair in such a manner that upon anyone sitting in the chair, a connection was made, giving to such person an electric shock.

Appellee had been employed for a number of years by the American Bailway Express Company as a driver, and had collected express from appellants. Some time during the month of July, 1922, as a matter of convenience, an arrangement was made between appellant company and the express company, whereby the driver for the express company called at the De-Moulin factory, collected the outgoing packages,- and made out shipping bills therefor. On July 25, appellee went to the shipping room of said factory to collect the packages for shipment. After attending to the necessary details of the work, appellee went to a small table and seated himself in a chair, which he testified was at the table in the same position he had left it the day before, and that he had gone there for the purpose of making out the shipping bills.

Appellee further testified in effect that when he sat down he “felt something about a foot long. It felt like a knife blade with a saw blade to it; it just twisted my spine and bones, and that is the last thing I knew until I felt a thud.” No one saw appellee sit in the chair, and no one saw him fall, but the testimony shows that persons in the building were attracted by the. noise, and on investigation found appellee lying on the floor, unconscious. After a few minutes he was helped to his feet and a doctor called, who made a more or less hurried examination of him. In something like three-quarters of an hour, appellee apparently recovered sufficiently to finish loading his parcels and delivered the same to the railroad station. Appellee was on duty for three or four days consecutively after the accident, when he quit his employment.

Appellee’s family physician testified in effect that he made an examination of appellee and found that his latissimus dorsi muscles were swollen and sore, causing pain in his back, and that there was also inflammation and swelling in the muscles of the arm.

The evidence on the part of appellants tended to show that the trick chair was so constructed as to give, on sitting in it, a slight shock or burning sensation, causing one to suddenly rise.

. The declaration consisted of six counts. The first five counts, in varying language, charge appellants with negligence in failing to furnish appellee a safe chair in which to sit while billing goods received by said express company from appellants for shipment. The sixth count charges that appellants wilfully, wantonly and recklessly substituted, for the chair appellee had been using, a chair which was equipped with an electric current and storage battery, for the purpose of injuring him.

To said declaration, appellants filed a plea of the general issue. A trial was had, resulting in a verdict in favor of appellee, and judgment was rendered thereon as heretofore stated.

One of the grounds urged for a reversal of said judgment is that the court erred in its rulings on the evidence. Doctor Lusader, appellee’s family physician, who treated him after his injury, testified on behalf of appellee. In the course of her examination, she was asked and was permitted to answer the following question, over appellants’ objection:

“Q. Now, Doctor, from an examination of this man on the 26th of July, in your diagnosis of the case at that time and your knowledge as a physician and surgeon, what in your opinion caused the condition'in his back from which he was suffering at the time he came to you?

“A. Why, the injury of July 25th is all I could lay it to.”

A motion to strike said answer was made, but was overruled by the court. The objection made to the question and answer was that it permitted the witness to go outside of her sphere, and that her answer assumes one of the very questions the jury were to decide.

The nature and extent of the injury and the manner of its infliction is a matter in dispute in this case, Counsel for appellants contend that the injury was not occasioned by appellee’s direct contact with the electric chair, but was caused by his violently throwing the chair in question some twelve feet from where it stood to the rear of the room and against a brick wall. Counsel for appellants further contend that the physical condition of appellee, as shown by the evidence, was due to diabetes. There being a dispute as to the cause of the injury, it was error for the court to overrule the objection to said question, and to deny the motion of appellants to exclude the answer to the same. City of Chicago v. Didier, 227 Ill. 571; Fellows-Kimbrough v. Chicago City Ry. Co., 272 Ill. 71; Illinois Cent. R. Co. v. Smith, 208 Ill. 608; Schlauder v. Chicago & S. Traction Co., 253 Ill. 154.

In the case of Fellows-Kimbrough v. Chicago City Ry. Co., supra, the doctor was permitted to testify over the objection of counsel for the defendant “that the tumor resulted from the bruise — the injury to the breast. The neurasthenia resulted from the shock of the accident and was kept alive by the breast condition.” In disposing of the assignment of error based on the admission of this testimony, the court at page 77 says:

“Whether or not the collision or accident in this case caused traumatic neurasthenia in the defendant in error, or caused the tumor in her breast, are ultimate' facts upon which the jury must make their findings. It is no more proper, legally, for physicians to settle those questions for the jury by their direct answer than it would be for a motorman of another street car company to settle the question of negligence by testifying in broad terms that the plaintiff in error was guilty of negligence because its motorman failed to cut off the power by use of the canopy switch in time to prevent the collision. The rule in such cases is not different where hypothetical questions are put to the expert witnesses.”

And in Schlauder v. Chicago & S. Traction Co., supra, a physician was asked this question: “Have you an opinion whether or not Mrs. Schlauder is or is not permanently injured as a result of that accident?” An objection to the question was overruled and the question was answered. The court, in discussing this ruling at page 161, says:

“The evidence was admitted while the plaintiff was making out her case to establish the cause of action alleged, and the plea was, not guilty. The record shows no admission of an injury to the plaintiff, but while it was not denied that the plaintiff fell, the fact that she was injured was disputed, and the evidence for the defendant tended to prove that she was not injured. ’ ’

It is next contended by counsel for appellants that the court erred in refusing to direct a verdict for appellants, on motion made at the close of appellee’s evidence, and again at the close of all the evidence. It is the contention of counsel for appellants that there can be no joint liability in this case, and that, therefore, the court should have directed a verdict in their favor, and that the motion for a directed verdict raises said question. No demurrer, plea in abatement or motion in arrest of judgment was filed in the case, raising the question of joint liability, and it is sought to be raised in this court for the first time. An objection for a misjoinder of parties, plaintiff or defendant,, cannot be made for the first time on appeal. 2 Cyc. 688; 8 Pl. & Prac. 188; Town of Harlem v. Emmert, 41 Ill. 319-322; Helmuth v. Bell, 49 Ill. App. 626-632. We therefore hold that appellants are not in a position to raise such point at this time.

It is next contended by counsel for appellants that the court erred in giving the second, third, fourth, fifth, sixth, seventh and eighth instructions given on behalf of appellee.

We have examined appellee’s instruction number íavo in connection with the argument made against it, and hold that while it is somewhat loosely drawn, there was no reversible error in the giving of the same.

It is complained that the court, in giving appellee’s instruction number three, touching what the jury should consider in determining the preponderance of the evidence, ignored the number of the Avithesses. An examination of this instruction Avill disclose that this point is not well taken, as the jury were told in the very beginning of the instructions that the number of witnesses was to be taken into consideration in that connection. The court did not err in the giving of this instruction.

Appellee’s fourth given instruction is as follows: “The court instructs the jury that positive testimony is entitled to greater weight by you than negative testimony, provided such testimony is .otherwise equally credible.” This instruction is erroneous, for the reason that it is not the province of the court to tell the-jury which evidence is the strongest. Rockwood v. Poundstone, 38 Ill. 199; Chicago & A. R. Co. v. Robinson, 106 Ill. 142-145; Louisville, N. A. & C. Co. v. Shires, 108 Ill. 617; Himrod Coal Co. v. Clingan, 114 Ill. App. 568.

Appellee’s fifth given instruction is as follows: “The court instructs the jury that it is a principle of law that if you believe, from the evidence, that any witness has wilfully and knowingly sworn falsely to any material element in the case, or that any witness has wilfully and knowingly exaggerated any material fact or circumstance for the purpose of deceiving, misleading or imposing upon the jury, then the jury have the right to reject the entire testimony of such witness unless corroborated by other evidence which you believe, or by facts and circumstances appearing in the case.” This instruction is erroneous for the reason that it requires that the corroborating evidence which the jury may consider must be evidence which they believe. Chicago & A. R. Co. v. Kelly, 210 Ill. 449-451. It is also erroneous in omitting the statutory requirement that the false testimony be in reference to “a matter material to the issue or point in question,” or words of equivalent meaning. A “material element” in the case is not of the same import as the words contained in the statute. Young v. People, 134 Ill. 37-39; Cope v. Brentz, 190 Ill. App. 504.

Instruction number six is erroneous in that it in effect assumes that appellants inflicted some injury on appellee, and submits to the jury only the question whether said injury was wilful and wanton.

Appellee’s instructions seven and eight are erroneous, as they each in effect assume that appellants were guilty of negligence, and neither of said instructions require that the negligence of appellants be the negligence charged in the declaration. This was error. Camp Point Mfg. Co. v. Ballou,, 71 Ill. 417; Chicago & A. R. Co. v. Mock, 72 Ill. 141-144; Chicago, B. & Q. R. Co. v. Levy, 160 Ill. 385.

Error was assigned by appellants for the refusal of certain instructions tendered by them and which-were refused. This assignment of error was not argued, and is therefore deemed waived.

On the sixth count of the declaration, we are of the opinion and hold that if the evidence should show that appellee was injured by reason of some trick being played upon him by an officer or employee of appellant company, the performance of said trick would be outside of the scope of his employment or duties, and in such event of the proof, appellant company would not be liable.

An action on the case cannot be maintained against a corporation for injuries wilfully and intentionally inflicted by servants and employees, where not produced in the course of their employment, in doing the business for which they are employed. It is only for the negligence, unskilfulness or carelessness of the servant, where the injury is attributable to the conduct of the servant or agent, that the master is liable in an action on the case. Illinois Cent. R. Co. v. Downey, 18 Ill. 259-260; Tuller v. Voght, 13 Ill. 277-285.

The master is, in this State, responsible for the acts of the servant done within the general scope of his employment, while engaged in his master’s business, with a view to the furtherance of that business, whether he acts negligently or wilfully and wantonly. A master is not liable, however, for acts of his servant not within the scope of his employment. Belt Ry. Co. v. Banicki, 102 Ill. App. 642-647.

In this connection, we are not expressing any opinion whatever on the evidence in the record or as to what it may prove or tend to prove, but we are simply stating the law on the question of joint liability sought to be raised by appellants, as such question may arise on another trial.

For the reasons above set forth, the judgment of the trial court will be reversed and the cause will lie remanded.

Judgment reversed and cause remanded.