text:
    Magdalen Friend, Appellant, v. Northern Trust Company, Executor of Estate of Emanuel Friend, Deceased, et al., Appellees.
    Gen. No. 42,011.

      Heard in the third division of this court for the first district at the October term, 1941.
    Opinion filed May 27, 1942.
    Floyd Lanham and Arthur it. Hall, both of Chicago, for appellant.
    D’Ancona, Pflaum, Wyatt, Marwick & Risicind and Winston, Strawn & Shaw, all of Chicago, for appellees; A. J. Pflaum and John D. Black, both of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On May 18, 1917 an antenuptial agreement was executed at Chicago between Emanuel Friend, a physician and surgeon of that city, and Magdalen Jane Alexander, whereby the latter purported to waive any and all rights in the estate of her intended husband for the sum of $5,000 in the event the parties should separate prior to the husband’s death, and the sum of $25,000 in the event they continued to live together until his death. The parties were married at Chicago on May 26, 1917. At that time she was 24 years and he was 49 years of age. She received her education in a convent in the State of Iowa. After completing her education and prior to her marriage to Dr. Friend, she gave lessons in speaking and taught art and elocution in Chicago. On December 8,1933, Dr. Friend filed a hill for divorce in the superior court of Cook county. The bill alleged that on October 27, 1932, Magdalen Friend wilfully deserted and abandoned him for the space of one year and upwards. Magdalen Friend, answering, admitted the marriage, hut denied she1 had deserted him. On December 13, 1933, the superior court of Cook county entered a decree finding that on October 27, 1932, Magdalen Friend wilfully deserted and abandoned Emanuel Friend without any reasonable cause therefor, and that she persisted in such desertion for the space of one year and upwards prior to the filing of the bill of complaint. The decree dissolved the marriage between the parties, and found that pursuant to an agreement the antenuptial contract of May 18, 1917, was terminated. Emanuel Friend was ordered to pay Magdálen Friend the sum of $25,000 in full and complete settlement and adjustment of all her rights in the property of the complainant, and of all claims and demands for alimony and support. Emanuel Friend was also ordered to pay Magdalen Friend for her solicitors ’ fees and costs the sum of $5,100, and to deliver to her one LaSalle automobile. The court further decreed that all the right, title, claim or interest of Magdalen Friend in any property then owned by him, or thereafter acquired by him by way of jointure, homestead, dower or otherwise be forever terminated and barred. The payment of the amounts awarded was made in open court when the decree was entered. No appeal was prosecuted from the decree of divorce entered on December 13, 1933. No children were born to or adopted by Emanuel and .Magdalen Friend. On November 8, 1935, Magdalen Friend married George H. J. Langskov at Laguna Beach, California. Dr. Friend died at Chicago on July 19, 1938. On September 7, 1938, his last will and testament was admitted to probate by the probate court of Cook county, and the Northern Trust Company qualified as executor. On September 5, 1939, a complaint under the name of Magdalen Friend was filed in the circuit court of Cook county, naming the Northern Trust Company executor, and others, as defendants. Defendants answered and the case was heard before the chancellor in a trial lasting more than seven weeks. In the taking of depositions and in open court, plaintiff called 24 witnesses and defendants called 40 witnesses. The chancellor gave an opinion which carefully reviewed the testimony of the witnesses on every feature of the case, and analyzed the law relating to the facts as found by him. He entered a decree finding against the contentions of plaintiff and dismissed her complaint for want of equity. This appeal followed.

Plaintiff’s theory is that the divorce decree entered on December 13, 1933, is void because (1) a separate maintenance proceeding was pending between the parties thereto for 63 days of the time relied upon by defendant’s testate, as the 12 months statutory period of wilful desertion; (2) the defendant therein at the time the divorce decree was entered and for some years prior and subsequent thereto, was an insane person, wholly incapable of transacting business in her own interest; and (3) the defendant therein was an insane person, wholly incapable of transacting business in her own interest during the entire time relied upon as the 12 months period of desertion, wherefore she was incapable of committing wilful desertion. Plaintiff’s further theory is that the antenuptial contract is void because at the time it was made an engagement to marry existed, requiring the defendant’s testate to fully disclose the extent, nature and character of his wealth; 'that the sum provided to be paid to the wife was grossly disproportionate to what she was entitled to receive, and its procurement constituted a fraud; that since the divorce decree is void for either of the reasons asserted, it may be attacked at any time, either in a direct or a collateral proceeding, and that the court should have declared such decree to be a nullity and void. The theory of the defendants is that (1) plaintiff’s case is without foundation either in fact, in equity, in conscience or in morals; that plaintiff has come into equity without clean hands and cannot recover; (2) that plaintiff is and always has been sane and bound by all her acts and doings, and that the evidence abundantly proves this; (3) that the divorce to Emanuel Friend was granted by a court of competent jurisdiction after a full trial at which both parties were present in person and by their respective solicitors, is valid, never appealed from, and is not subject to collateral attack; (4) that the antenuptial agreement made between Emanuel Friend and Magdalen Friend was a valid agreement, entered into knowingly by plaintiff; that the plaintiff waived and relinquished all rights under it at the time of her divorce by the acceptance of the decree of divorce and the amount awarded her thereby, and of the benefits of the divorce, and that said agreement and the plaintiff’s rights thereunder have been terminated; (5) that plaintiff, according to the allegations of her complaint, having regained her sanity on or about January 15, 1939, learned at some time between January 15, 1939 and July 10,1939 of the death of Emanuel Friend, and notwithstanding this knowledge continued to live and cohabit with G-eorge H. J. Langskov for some time after July 10, 1939, and until before the filing of the complaint, and is estopped to maintain this action and is guilty of laches in not earlier bringing this action; (6) that plaintiff is estopped by the acceptance of the benefits of the divorce decree, and all her subsequent conduct to maintain the action; (7) that plaintiff comprehended and understood all her acts and doings and understood that the decree of divorce had been entered and that all property matters between her and Emanuel Friend had been adjusted, determined, comprehended; that she understood that she was married to George H. J. Langskov; (8) that this case is from its inception a fraud on the court and without merit in equity, conscience or fact; and (9) that the overwhelming weight of the evidence sustains the decree of the trial court which found that the plaintiff was and is sane; that the decree obtained by Emanuel Friend from her was valid, that her subsequent marriage to Langskov was valid, and that there is no equity in her case.

The first criticism leveled at the instant decree is that the chancellor should have found that the decree of divorce entered December 13, 1933, finding Magdalen guilty of wilful desertion, was and is a void decree ; that such decree being void for lack of jurisdiction of the court to enter it, may be attacked at any time in any manner and by any person affected thereby; and that the lack of jurisdiction of the court to enter the decree can be shown from the record itself or by facts outside the record. Defendants answer the criticism by asserting that the decree of divorce entered by the superior court is a valid and subsisting decree; that the superior court has jurisdiction in divorce cases; that the decree was not appealed from and is not subject to- collateral attack; and that the decree is not subject to attack in this proceeding, which is in the nature of a bill to review a decree entered by a court of competent jurisdiction. On August 25,1933, Magdalen Friend filed a bill for separate maintenance in the superior court of Cook county against Emanuel Friend. On September 12, 1933, Emanuel answered, and on September 30, 1933, Magdalen filed a replication. Two hearings were had on

the separate maintenance complaint during the months of October and November 1933. On December 8, 1933, Emanuel Friend filed a bill for divorce in the superior court in which he charged his wife with desertion from October 27, 1932, to and including October 27, 1933. On the day the bill for divorce was filed, Magdalen filed an answer denying that she had deserted him. The divorce complaint came on for hearing on December 13, 1933, and a decree of divorce was entered. The ground for allowing the divorce was that on October 27, 1932, Magdalen wilfully deserted and abandoned Emanuel without any reasonable cause, and persisted in such desertion for a space of one year and upwards prior to the filing of the bill of complaint. On the day the decree for divorce was entered, namely, December 13, 1933, there was filed in the separate maintenance proceeding a stipulation that such case might be dismissed, and upon the stipulation an order was entered by the samé chancellor who heard the divorce case dismissing the separate maintenance case. The certificate of evidence in the divorce case shows that at the time the chancellor was about to sign the divorce decree, he was confronted with the fact that the separate maintenance case was pending before him. The period of desertion as alleged in the bill of divorce and upon which the decree was. entered, was from October 27, 1932 to October 27, 1933, but included in this period of time is that period from August 25, 1933 to October 27, 1933, when the separate maintenance complaint of Magdalen was pending. Plaintiff cites Floberg v. Floberg, 358 Ill. 626, as authority for the proposition that there can be no wilful desertion during the period when the wife is prosecuting a suit for separate maintenance. In the Floberg case, the Supreme Court said:

“Such living separate and apart does not constitute willful desertion without reasonable cause within the meaning of the Divorce act. It would be incompatible with a pending suit for the dissolution or modification of the marriage contract for the parties to live together. If the suit is carried on bona fide, it is not incumbent, during its pendency, upon either party to resume the marital status. The time so consumed by the litigation cannot be reckoned in the calculation of the statutory period of desertion. The rule applies alike to pending proceedings for separate maintenance under the statute and for divorce. It is ‘time out.’ ”

The question of what shall constitute grounds for granting a divorce, or whether the marriage contract shall be dissolved under any circumstances or for any cause, is one of public policy and belongs to the legislative and not the judicial department of our government. (Embree v. Embree, 53 Ill. 394.) Section 5, ch. 40, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 109.172], provides that “.the Superior Court of Cook County shall have jurisdiction in cases of divorce and alimony allowed by this act.” Section 1, ch. 40, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 109.169], empowers the court to grant a divorce where a spouse has “wilfully deserted or absented himself or herself from the husband or wife without any reasonable cause for the space of one year.” The bill for divorce properly alleged that Magdalen had wilfully deserted and absented herself from Emanuel for the space of, one year and upwards. Hence, on the face of the bill the court had jurisdiction of the subject matter. It has been well said that there is perhaps, no word or legal terminology so frequently used as the word “jurisdiction, ’ ’ so capable of use in a general and vague sense, and which is used so often by men learned in the law without a due regard to precision in its application. (Watson v. Jones, 13 Wall. (U. S.) 679, 732.) In O’Brien v. People ex rel. Kellogg Switchboard & Supply Co., 216 Ill. 354, our Supreme Court said at page 363:

“Jurisdiction is the power to hear and determine the subject matter in controversy between the parties to a suit. If the law confers the power to render a judgment or decree, then the court has jurisdiction. . . . Jurisdiction of the particular matter does not mean simple jurisdiction of the particular case then occupying the attention of the court, but jurisdiction of the class of cases to which the particular case belongs. .- . . Jurisdiction does not depend upon the rightfulness of the decision. It is not lost because of an erroneous decision, however erroneous that decision may he. ’ ’ In our opinion the rule laid down in Ullrich v. Ullrich, 299 Ill. App. 460, is applicable to the instant case. On March 6, 1935, Mrs. Ullrich filed her bill for separate maintenance, and one year and three days later on March 9, 1936, her husband filed a cross hill for divorce. Answers were filed to the bill and cross bill. On October 9, 1936, Mrs. Ullrich filed an amended complaint, amending her bill for separate maintenance to a bill for divorce, charging cruelty. On October 20, 1936, her husband answered this amended bill, and on December 2, 1936, by leave of court, Mrs. Ullrich again amended her complaint and charged desertion. The answer of the defendant to the first amended bill (charging cruelty) was ordered to stand as the answer to the complaint of December 2, 1936. On December 16, 1936, the case was heard, both, parties being represented by counsel, and a decree for divorce on the ground of desertion was awarded to Mrs. Ullrich. Neither party appealed. On December 14, 1937, a year after the decree was entered, Mr. Ullrich filed a complaint in the nature of a bill of review and sought to have the divorce decree annulled for error of law apparent on the face of the decree, namely that his desertion as the legal ground for the decree had been suspended during the period while the separate maintenance complaint was pending. The chancellor sustained Mrs. Ullrich’s motion to strike and dismissed the complaint. Mr. Ullrich appealed and we affirmed the order dismissing the decree. We said at page 463:

“The error urged by plaintiff is that the decree was granted for wilful desertion and that it is apparent the court erroneously included in the period of one year of wilful desertion, as required by statute, the time in which a bill of complaint by Mrs. Ullrich against her husband for separate maintenance was pending. Such computation was held erroneous by the Supreme Court in Floberg v. Floberg, 358 Ill. 626, followed by this court in In re Estate of Schriver, 289 Ill. App. 581. In each of these cases, however, the decree was challenged by direct appeal where the court in its consideration of the decree was untrammelled by rules applicable to petitions for review for error apparent on the face of the decree by which we are bound. Courts are reluctant to subject decrees in equity to review by bills of this nature, and the cases are comparatively few in which such relief has been allowed. In particular, this reluctance exists in regard to decrees for divorce and for obvious reasons.” We are of the opinion that the case of People v. Prystalski, 358 Ill. 198, while not a divorce case, serves to illustrate the principle involved. The Supreme Court said at page. 206:

“Jurisdiction of a court to hear and determine a cause does not depend upon actual facts alleged but upon authority to determine the existence or nonexistence of such facts and render judgment according to such finding.” The transcript of the proceedings at the divorce trial shows that the parties were present in open court in person and by their counsel; that Emanuel and two witnesses testified that Magdalen left him on October 17,1932, which was more than one year before the filing of the bill for divorce and that after plaintiff’s evidence was heard, Magdalen’s counsel stated that she offered no evidence. The court, however, examined Magdalen and in response to questions she answered that she understood she was to receive a lump sum of $25,000 in full settlement of her dower and any other interest she might have in Emanuel’s property; that she was also to receive $5,100 in. full of her solicitor’s fees and all other expenses, and a LaSalle automobile; that in accepting these amounts a certain antenuptial contract between her and Emanuel was waived and released, and that in accepting all these conditions she was forever barred from and waived and relinquished all right to homestead and dower or any other rights she might have in her husband’s property, and that she could not ask for any further payments. The court also asked Magdalen’s counsel whether he wished to ask her any questions and he stated he did not, whereupon the court stated that he desired to have the parties sign the decree. The decree was signed by the parties and entered. On the day the decree was entered, Magdalen also signed a release of errors. We are convinced that the superior court had jurisdiction to hear the divorce case and to grant the decree on the ground of wilful desertion for a period of one year. The bill charged wilful desertion and the witnesses testified in support of the charge. The fact that the court erroneously counted time did not deprive it of jurisdiction to hear and determine the case. As the Supreme Court said in the O’Brien case, jurisdiction does not depend upon the rightfulness of the decision and is not lost because of an erroneous decision, however erroneous that decision may he.

Plaintiff insists that the decree is manifestly and palpably against the weight of the evidence; that she was an insane person on December 13, 1933 and had been so for a long period prior thereto, and no valid decree of divorce could be entered against her on a charge of wilful desertion; that the actions of Emanuel Friend in connection with the entry of the divorce decree constituted a fraud upon the court, rendering the decree invalid; that the decree being invalid may be attacked at any time and in any manner and by any person affected thereby; and that plaintiff’s actions subsequent to the entry of the divorce decree do not estop her from now attacking such decree as being void. Defendants meet these contentions by asserting that the instant decree is-supported by the overwhelming weight of the evidence; that any other decree would have been contrary to the overwhelming weight of the evidence, to equity and to good conscience; that plaintiff was and is a sane person of sufficient mental capacity to understand and comprehend all her acts and doings; that there is no basis for the contention that Emanuel Friend imposed a fraud upon the court; that the actions of plaintiff subsequent to the entry of the decree of divorce estop her from attacking such decree; that her actions also show that she is barred by laches, and that the decree of divorce is valid and not subject to .collateral attack. Plaintiff alleged that she became and was insane on or about February 15, 1930, and so remained until on or about January 15, 1939. The evidence offered in support of this proposition consisted of the testimony of all of the persons closely associated with her and taken from every station in life, her nurses, her doctors, her companions and her associates, and covered the period of her early ailments from 1930 to shortly before the filing of the instant complaint. The three physicians testifying for plaintiff as experts upon a hypothetical question, expressed the opinion that at the time of the entry of the divorce decree, and prior and subsequent thereto, plaintiff was insane. Three physicians testifying for defendants as experts, upon the same hypothetical question, expressed the opinion that at the time of the entry of the divorce decree and prior and subsequent thereto plaintiff was a sane person. The evidence was conflicting in many respects. Plaintiff maintains that her witnesses had much closer and more intimate knowledge of her condition than those testifying for defendant. In the opinion filed by the chancellor in the instant case he called attention to the fact that plaintiff did not testify. He remarked that while she had the right to refrain from taking the stand, there was ‘1 a great deal of evidence that could have been refuted by her, if she so desired. She was within one block of this court during the trial of this case, which lasted seven weeks, and at no time did she appear in court.” A discussion of the evidence of the respective witnesses would expand this opinion into a volume. We have carefully read the abstracts and briefs and concur in the finding of the chancellor that the evidence does not sustain her allegations of insanity. We also agree that the evidence does not establish that the actions of Emanuel Friend in connection with the entry of the divorce decree constituted a' fraud upon the court. The contention of plaintiff that the decree is manifestly and palpably against the, weight of the evidence is without merit.

Plaintiff urges that the antenuptial contract made May 18, 1917, was void. We are of the opinion that our discussion of the other points disposes of this point. The evidence clearly shows that at the time the divorce decree was entered plaintiff knowingly waived and relinquished all her rights under the antenuptial agreement. The divorce decree found that the parties had agreed that the antenuptial agreement should be canceled and rescinded and thereafter be of no further force or effect, and the court decreed that the agreement was terminated and no longer binding upon either of the parties, and that all right, title, claim or interest of Magdalen in any and all property of Emanuel was forever terminated and barred. We have held that the evidence shows that Magdalen Friend was sane and that the divorce chancellor had jurisdiction to enter the decree of divorce. We have also held that the evidence shows, that no fraud was committed on the court. It is unnecessary for us to discuss the proposition as to whether the antenuptial contract was void. We find that the decree in the divorce case is binding on Magdalen Friend and that the provision in such decree terminating the antenuptial contract and waiving and relinquishing all her rights therein, is binding.

Plaintiff states that her actions subsequent to the entry of the decree of divorce do not estop her from now attacking the decree as being void. The checks in payment of the $25,000 award to plaintiff and the $5,100 award for her solicitors’ fees and other expenses, were delivered to her in open court. She indorsed the checks and they were paid. No tender of repayment of the checks to Emanuel Friend or to his estate has ever been made, nor has the failure to do so been adequately explained. She married George H. J. Langskov on November 8,1935. There is competent evidence in the record to show that Langskov and plaintiff cohabited together as husband and wife from the time of their marriage up to the time of the trial. We have held that the evidence shows that during all this time she was sane, and responsible for her acts. We are satisfied that her actions subsequent to the entry of the divorce decree estop her from challenging that decree. Finally, plaintiff contends that the court erred in striking from the record the testimony of H. Clay Calhoun, the notary who acknowledged the antenuptial contract, and in admitting the testimony of Edward C. Higgins, an attorney who appeared for her in the divorce case. In view of our holding that at the time the divorce decree was entered the ante-nuptial contract was abrogated, it is unnecessary for us to pass on the admissibility of the proffered testimony of Mr. Calhoun. Plaintiff states that Edward C. Higgins, a lawyer and associate of Mrs. Friend’s attorney in the separate maintenance and divorce cases, was permitted over objection to testify in detail as to his conversations with her regarding her cause of action against Dr. Friend, her financial condition and physical condition, and from these conversations and others he said that in his opinion she was sane. Mr. Higgins was called as a witness for the defendant and testified that he appeared for plaintiff in court before the divorce chancellor on two different occasions, stated his recollection of the testimony given by his client in open court, and that from what he saw of her actions and conversations it was his opinion that she was sane. We agree with defendants that there is no ground for any proper objection to the testimony of Mr. Higgins which so far as it related to the conduct of Magdalen had, to do only with her conduct in open court during the hearing of a case.

For the reasons stated, the decree of the superior' court of Cook county is affirmed.

Decree affirmed.

Hebel and Kiley, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Burke

license: Public Domain

text:
    City of Des Plaines, Appellant, v. B — W Construction Company and American Surety Company of New York, Appellees.
    Gen. No. 42,067.

      Heard in the third division of this court for the first district at the February term, 1942.
    Opinion filed May 27, 1942.
    Rosen, Francis & Cleveland, of Chicago, for appellant ; Ralph Rosen and James B. O’Shaughnessy, both of Chicago, of counsel.

      SONNENSCHEIN, Berkson, Lautmann, Levinson & Morse, for certain appellee; Herbert M. Lautmann and Jack I. Levy, both of Chicago, of counsel.
    Levinson, Becker, Peebles & Swiren, of Chicago, for certain other appellee; Don M. Peebles and Herbert Portes, both of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

In a complaint filed in the circuit court of Cook county on October 18, 1935, the City of Des Plaines, a municipal corporation, sought a judgment in the sum of $17,326.79 for damages sustained because of the alleged failure of the B — W Construction Company, a corporation (hereinafter called the “A” contractor) to carry out its agreement for the construction of a portion of a softening plant, reservoir and pumping station, the performance of which was guaranteed by the American Surety Company of New York (hereinafter called the “Surety”). Issue was joined. At the close of plaintiff’s case, the court directed a verdict for the defendants and entered judgment accordingly, to reverse which this appeal is prosecuted.

The parties are in agreement that the question of law presented upon a motion to direct a verdict is whether when all of the evidence is considered, together with all reasonable inferences drawn from it in its most favorable aspects to the party against whom the motion is directed, there is a total failure to prove one or more necessary elements of the case. (Foreman-State Trust & Savings Bank v. Demeter, 347 Ill. 72.) Plaintiff insists that it proved all of the elements to make out a prima facie case, and that the court was not warranted in directing a verdict. Defendants, on the other hand, maintain that plaintiff failed to prove an essential element of its cause of action. To determine this point, we have carefully read' the transcript of the testimony and the exhibits. In 1935, the municipality, a suburb located northwest of Chicago, undertook with the aid of federal funds, the construction of a water softening plant, reservoirs and other structures necessary for the operation and maintenance of a public water works system. The construction work and installation of the necessary machinery was to be done by six different contractors and agreements were entered into between the city and each of the contractors. In this case only two contractors need be considered. The “A” contractor was the successful bidder for section “A” of the project, which, included the principal construction of the plant' and reservoirs, including necessary excavation.The “B” contract was awarded.to the Economy Heating and Plumbing Company, which agreed to install the plumbing and to construct a toilet sewer. Each contract was executed separately. The contracts included, in addition to the agreement, plans and specifications, construction regulations issued by the Federal Government and general conditions of the contract in a form prepared and approved by the American Institute of Architects. Each set of specifications included details of the work to be done by all of the contractors. The agreement with the “A” contractor was entered into on October 18, 1935. At that time the “B” contract had not been executed. On November 6,1935, the “A” contractor commenced excavating on the site of the project. At that time the “B” contract had not been approved and it was not officially approved until the latter part of November 1935. The specifications for the work alloted to the “A” contractor provided that “the toilet sewer shall be installed by contractor “B” as the first construction and used to drain the excavation.” Defendants maintain that this language required the installation of a sewer which would actually drain the excavation as a condition precedent to the obligation of “A” contractor under its agreement with plaintiff. We are of the opinion that the contract contemplated that before the “A” contractor could be required to perform its part of the work, plaintiff would cause the “B” contractor to install a toilet sewer which could be used by the “A” contractor to drain the excavation. The specifications required the “A” contractor to excavate an area approximately 18,000 square feet to a depth varying between 4 and 4% feet. During the month of November the “A” contractor continued to work and excavate on the site. It completed the excavation about December 5, 1935, and removed its excavating equipment. It then caused reinforcing steel and lumber to be delivered to the site. Thereafter, it had a superintendent on the job, who supervised the building of an office and staked out the job. On February 26, 1936, the “A” contractor notified plaintiff that it was electing to terminate the contract. Plaintiff thereafter called upon this contractor to resume work and notified the Surety that it would hold it to its bond in case any loss resulted from the failure of the contractor to proceed with the work.. On May 14, 1936, neither the Surety nor the contractor having recommenced work, another contractor, R. 0. Wieboldt Company, started the completion of the project originally undertaken by contractor “A.” The work to be done by Wieboldt was identical with that contracted by contractor “A.”

Lancelot F. Wysockey, called as a witness by plaintiff, testified that he was a construction engineer; that he represented the Public Works Administration in connection with the construction of the waterworks project for the City of Des Plaines; that he was assigned to the project about November 1, 1935, and was there until February 18, 1936; that it was his duty to report to the State Engineer Inspector the progress and activities of construction and to see that the project was constructed according to the plans and specifications; that he had an office on the project; that the “B” contractor came to the site about December 21, 1935, and started excavating a drain line from the main excavation, that is where the site of the plant was, to a connected sewer along the east side of the property, and worked on that until January 18, 1936, when it had completed that portion of the contract. On cross-examination, this witness testified that the “B” contractor came to the site the latter part of November 1935, and actually commenced work about December 21; that this contractor started excavating the north side of the plant and continued until the holidays and then put in several days between Christmas and New Year’s, started again the first part of January 1936, and continued until about the middle of January 1936, “When he completed that portion of it.” When asked what he meant by “portion,” the witness stated that the “B” contractor had a contract to install pipe inside as well as outside of the building, that he started the outside work first and came on to the site where the building was going to be erected, and that the balance of the work on the inside could not be completed until the other contractor had completed part of his work. Counsel called the witness’s attention to the provision that “the toilet sewers shall be installed by contractor ‘B’ as the first construction and used to drain the excavation” and asked, “Now when you say they completed their work on January 18, 1936, had they completed the toilet sewers to drain the excavation that this specification called for ? ’ ’ Witness answered, “Yes, that is a waste line; I made the statement that they had installed a waste line and drain line, and that is a toilet sewer.” In answer to the question as to where it was, he answered, “It was on the east side, on the north side of the plant, and it came in from the north, in along the east side and made a connection across into the plant and also another connection over to the old present pumping station. In other words, it came over in sort of an H-shape. To explain it more in detail to you, one line went along the north side of the plant; the other section from the old plant or the pumphouse into the new, and in the center between the two went another lateral into the waste line, on the outside of the building.” Witness further testified that the specifications directed contractor “B” to first install the waste line so that contractor “A” could use it to drain any water out of the ex-cavataion made by contractor “A.” Asked as to whether there would be a point of contact between the two excavations, the witness answered, “Yes.” Asked, “Where was that point of that pipe after the fill-in, with respect to the ‘A’ excavation?”, he answered, “Well, that pipe would go right up to the wall line where the new building was going in, or within a couple of feet of it.” In answer to the question, “Well, now did you see that pipe in that position, did you ever see it in that position?”, he answered, “Yes, that pipe was completed.” Asked, “You are testifying now from independent recollection that there was such a pipe at or near the point where the excavation, the ‘A’ excavation, ended?”, he answered, “That’s right.” Asked as to which side of the main excavation the pipe was on, witness answered. “Well, the pipe came in along, as I explained before, it came in on the north side of the building, and then there was a lateral line that led across on the east side of the building.” Witness then explained that there- was a lateral line that led across on the east side of the building, entered the new building and also the old pumphouse. On cross-examination, he was asked, “Are you positive now that that ditch was up to and in contact with ‘A’?”, and he answered, “To the best of my knowledge, yes.” Defendants call attention to the testimony of Mr. Meyer, attorney for plaintiff, from which they argue that the condition precedent was not performed. Through cross-examining Mr. Meyer, defendants placed in the record a letter written by the “A” contractor to plaintiff in which that contractor set out its contentions. However, in passing on the proposition as to whether the court was right in directing a verdict for the defendants, we should view the evidence in the light most favorable to the plaintiff. While we agree with the contention of defendants that the installation of the toilet sewer was a condition precedent, we do not agree that the burden was on plaintiff to show that the sewer actually drained the excavation. All that the contract required was that the sewer could be used to drain the excavation. There was no obligation on the “A” contractor to use the sewer for the purpose of draining the excavation. This sewer was to operate in connection with the toilet. Mr. Wysockey, the engineer, testified that the “B” contract was completed on January 18, 1936. He emphasized that “when I say they had completed their work on January 18, 1936,1 mean they had completed the toilet sewer to drain the excavation that this specification called for.” The contract required that plaintiff cause the “B” contractor to install the toilet sewer in accordance with the plans and specifications as the first construction “and used to drain the excavation.” We construe" this language to mean that the sewer should be installed by the “B” contractor as the first construction so that it could be used by the “A” contractor to drain the excavation. The testimony of Mr. Wysockey shows that the sewer was constructed by the “B” contractor in accordance with the contract and the plans and specifications. The purpose of this sewer was to permit its use by the “A” contractor to drain the excavation and also as an outlet for the toilet. Wysockey, an engineer, represented the United States on the project, and it was his duty to see that the project was constructed in accordance with the plans and specifications. He testified that the “B” contract was completed on January 18, 1936. We are satisfied that the testimony introduced by plaintiff on the issue as to whether the sewer was constructed in accordance with the contract and the plans and specifications presented a question of fact for the jury, and that the trial judge was in error in finding as a proposition of law that the condition precedent had not been met.

Defendants point out that plaintiff alleged full performance of the contract and put in its proof upon the theory that there was no obligation upon it to prove the performance of the condition precedent, or any waiver by the defendants. Plaintiff did allege full performance and in our opinion made out a prima facie case of full performance. Plaintiff did not plead a waiver of the condition precedent, nor did defendants object to the testimony showing such waiver. Viewing the testimony so far introduced in the light most favorable to the plaintiff, the jury would have the right to say that in entering upon the performance of its contract before the sewer was installed, contractor “A” waived that provision of the contract. Plaintiff, however, did not file any pleading claiming a waiver, but did establish the alternative contention that sufficient evidence was introduced to make out a prima facie case that the sewer was constructed prior to February 26, 1936, when the “A” contractor terminated its contract for the alleged failure of plaintiff to cause the construction of a toilet sewer which would drain the excavation.

The Surety presents two additional points. The trial judge, in the opinion rendered at the time he ruled on the motions to direct a verdict, rested his decision on the failure of plaintiff to prove that the condition precedent, namely, the construction of the sewer by the “B” contractor had been proved. He did not discuss the two points urged by the Surety, which we will now consider. We agree with the Surety that if the judgment of the trial court was correct, the reasons given in support of its findings are immaterial. The first additional point advanced by the Surety is that plaintiff is precluded from maintaining the instant action against it because such action was instituted more than six months after the work was finally accepted by plaintiff. This defense is based upon the following language of the bond: “Provided, however, that no suit, action or proceeding by reason of any default whatever shall be brought on this bond after six months from the date on which the work is finally accepted by the owner; provided further, that suit may be brought by reason of any default based upon failure of the principal to fulfill his obligation to furnish maintenance or repairs for any period of time after the work is completed, if provided for in the contract, at any time up to six months after the expiration of the time specified in the maintenance clause of the contract.” Plaintiff contends that this limitation is not applicable to the factual situation because contractor “A” did not complete the work and, therefore, the work of contractor “A” was never finally accepted by the City. It was necessary for the City to secure a new contractor to complete the portion of the work called for by contract “A.” Plaintiff points out that the work of the new contractor, E. C. Wieboldt Company, was finally accepted by the City, but that the work of the “A” contractor was never accepted. The Surety also points out that the bond was not prepared by it. The bond was a form prepared by the P.W.A. in accordance with its regulations. The Surety suggests that the bond, having been drawn by the P.W.A. and adopted by the plaintiff, it would be appropriate to construe the language most strongly against the plaintiff. The Surety also supports its argument by quoting from the various documents attached to the contract, and cites the case of Fitger Brewing Co. v. American Bonding Co., 127 Minn. 330, 149 N. W. 539. Plaintiff leans heavily on the opinion by Judge Cardozo, speaking for the Court of Appeals of New York, in Comey v. United Surety Co., 217 N. Y. 268. In that case the bond contained a provision that suit could not be brought more than six months after the work was completed. . The court said at page 277:

“A cause of action to recover damage for refusal to complete the work cannot be subject to a limitation which assumes completion of the work. That limitation applies when the work has been done under the contract.” We agree with plaintiff that the six months limitation in the bond is not applicable. The work of the “A” contractor was never accepted because it was never completed. In our opinion the limitation as applied to the date when the work is finally accepted by the owner, refers to the work contracted to be done by the “A” contractor. As the work of the “A” contractor was never finally accepted, the only limitation which would be applicable is the general statute of limitations, and it is conceded that plaintiff has brought its action within the time permitted by that statute.

Finally, the Surety contends that the action and conduct of plaintiff in failing and refusing to accord it the 30-day period to take over the construction work, as provided in section 17 of the Construction Regulations, constituted both a substantial breach of the agreement and a repudiation of its provisions, which excused the Surety from its obligations under the bond. Section 17 of the Construction Regulations, being a part of the contract, provides that in the event the contractor violates the contract, the owner (plaintiff) may terminate the contract. It continues as follows:

“In the event of any such termination, the owner shall immediately serve notice thereof upon the surety and the contractor, and the surety shall have the right to take over and perform the contract . . . within thirty days from the date of the mailing to such surety of notice of termination.” On February 26, 1936, the “A” contractor notified plaintiff that it would proceed no further with the work, and that it was electing to terminate its contract. Five days later, March 2, 1936, plaintiff wrote the Surety advising it of the letter received from the contractor, and stated that since the contractor had not given any reason for breaking the contract the action amounted to a refusal to proceed. This letter further informed the Surety that plaintiff was compelled to look to the Surety for protection under the bond, and that if the Surety did not intend to take over the construction work and protect the plaintiff, the latter would be forced to proceed at once to receive new bids. The letter stated that it constituted a formal demand on the Surety to take the necessary action to protect the plaintiff. On March 6, 1936, the Surety wrote a letter to plaintiff stating that it did not intend to take over the completion of the work. It is clear to us that the Surety did not intend to take over the construction work which its principal abandoned. The Surety maintains that the demand made on March 2,1936, was premature and illegal and could have no effect on the rights of the Surety. On April 1, 1936, a resolution was adopted by the city council authorizing the city attorney to send notice of termination to the Surety and to readvertise for bids on section A. The city attorney prepared the notice of intent to terminate dated April 1, 1936. This notice informed the “A” contractor that “unless construction is started within 10 days of the receipt of this notice the said contract shall cease and terminate and the City will take over the work and prosecute same to completion for the account and at the expense of the contractor, B-W Construction Company.” Without waiting for an answer or any action by the “A” contractor, plaintiff proceeded on April 3, 1936 to publish its readvertisement for bids on section A. On April 13, 1936, plaintiff sent the Surety a notice that plaintiff had terminated the contract with the “A” contractor; The notice to the.Surety concluded: “In view of your previous written refusal to take over the construction work, contracted for by the B-W Construction Company, this city has readvertised for bids for the uncompleted portion of the contract of B-W Construction Company, and the City will look to you as Surety on the construction bond of B-W Construction Company for any damages and losses sustained by the City.” The Surety points out that despite the fact that the 30-day period within which it had the right to take over the work, did not start to run until April 13,1936, the date on which notice of termination was mailed, the plaintiff opened the bids which it had received on that date and on April 14, 1936, the plaintiff’s city council passed a resolution accepting the bid of R. C. Wieboldt Company; that on April 16,1936, plaintiff executed a contract with Wieboldt which specifically provided that the work ‘1 shall be commenced on or before April 28, 1936.” The record shows that Wieboldt did not actually enter upon the site to commence construction work until May 14, 1936, 30 days from the time notice of termination had been sent. Plaintiff maintains that although the contract with Wieboldt was entered into prior to the 30-day period within which the Surety had a right to take over the performance of the contract, the existence of plaintiff’s contract with Wieboldt did not prevent the Surety from completing the work if it had chosen to do so. We agree with the position of plaintiff. Section 17 of the Construction Regulations gave the Surety the right to take over and perform the contract within 30 days from the date of the mailing to such Surety of the notice of termination. The notice of the termination of the contract by the City was sent to the contractor and a copy to the Surety on April 13, 1936. Wieboldt did not commence construetion under the new contract until May 14, 1936. The Surety did not exercise the right given to it to take over and perforin the contract within 30 days from the mailing of the notice on April 13, 1936. It is true that the contract with Wieboldt was made on April 16, 1936, and had the Surety exercised its right “to take over and perform the contract” within 30 days from April 13, 1936, plaintiff might have had to defend a law suit brought by the Wieboldt Company. Such a dispute, however, would be a matter between the Wieboldt Company and plaintiff and would be of no concern to the Surety. Furthermore, we are of the opinion that the Surety’s letter of March 6, 1936 constituted a waiver of its right to complete the work. However, as plaintiff did not raise the question of waiver in its pleading, we have not considered that point.

Because of the views expressed, the judgment of the circuit court of Cook county is reversed and the cause remanded with directions to grant plaintiff a new trial and for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

Hebel and Kiley, JJ., concur.


text:
    Mary Merrick, Appellant, v. John Merrick, Also Known as John Brown. John A. Nordstrand, Appellee.
    Gen. No. 42,080.

      Heard in the third division of this court for the first district at the December term, 1941.
    Opinion filed May 27, 1942.
    Charles D. Callahan, of Chicago, for appellant.
    James L. Burden, of Chicago, for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On June 14, 1940, at Chicago, Illinois, Mary Caines, also known as Mary Cain, who was 53 years of age, married John Merrick, also known as John Brown, who was 80 years of age. On November 7,1940, Mary Merrick filed her verified complaint for separate maintenance in the superior court of Cook county, alleging that on July 15, 1940, defendant, without any reasonable cause, deserted her and that she was living separate and apart from him without any fault on her part. She also alleged that defendant owned certain real estate and possessed a bank account. On December 5, 1940, defendant filed a verified answer in which he admitted the residence of the parties and the allegation of their lawful marriage on June 14, 1940. He denied; that he wilfully and without reasonable cause, deserted her. He admitted ownership of the real estate. On, May 8, 1941, John A. Nordstrand filed a petition alleging that on March 24, 1941, he filed an application in the probate court for appointment as conservator of the estate and person of John Merrick, and that on April 9, 1941, an order was entered appointing him (John A. Nordstrand) conservator of the estate and person of John Merrick, an incompetent person. John A. Nordstrand also tiled a counterclaim, alleging that on June 14, 1940, John Merrick, an incompetent, married plaintiff; that they lived together approximately two weeks; that he was suffering from cancer of the tongue, for which he was being treated at a hospital; that plaintiff connived and conspired by artful inducements of attention, aid and comfort to induce him to marry her; that he was 80 years of age and in his dotage; that he was suffering from arteriosclerosis; that on June 14, 1940 (the wedding day) he did not possess sufficient insight, comprehension and judgment to appreciate the obligations of marriage; that on March 7, 1941, he was examined by a psychiatrist, who reported that the defendant might or could have been suffering from an acute exhaustive and toxic psychosis at the time of his marriage, which would have rendered him confused and mentally incompetent. He (John Nordstrand) prayed that the court enter a decree annulling the marriage between the parties. Plaintiff filed an answer to the counterclaim, reaffirming the allegations previously made by her and denying that defendant was incompetent to contract the marriage. On the day the case came on for hearing, plaintiff presented a petition suggesting the death of the defendant on May 29, 1941. The petition also alleged that on July 10, 1940, defendant executed a will in which he gave all of his property to plaintiff; that the will was filed in the probate court, and was set for hearing on July 29, 1941. John Nordstrand filed a petition alleging that on June 24, 1941, he was appointed special administrator for the estate of John Merrick, deceased, and prayed for leave to continue with the defense and prosecution of the case. The chancellor granted leave to John Nordstrand, as special administrator, to become a party to the instant case and to prosecute the counterclaim for annulment. Plaintiff refused to produce evidence on the issue of annulment, and the court, after hearing the evidence presented on behalf of John Nordstrand, entered a decree abating the cause as to the original complaint and entered a decree of annulment on the counterclaim. This appeal followed.

The theory of plaintiff is (1) that in suits for divorce, separate maintenance and annulment of marriage, where the marriage is the subject matter of the suit, the death of one of the parties before entry of the final decree abates the suit and deprives the court of jurisdiction over the subject matter; (2) that the right of action belonging to John Merrick in his lifetime, to bring an action for annulment of the marriage, was personal to him and did not survive his death; (3) that the superior court had no jurisdiction to determine the sole issue tried, namely, whether plaintiff was or was not the widow of the decedent; (4) that the probate court had no jurisdiction to appoint John A. Nordstrand as special administrator to prosecute the suit for annulment of the marriage; (5) that the superior court had no right or authority to authorize John A. Nordstrand to prosecute the counterclaim for annulment of the marriage; (6) that no property rights were involved, and could not be involved unless the heirs were made parties; (7) that the decree is contrary to the law and the evidence; and (8) that the court erred in admitting evidence on behalf of John A. Nordstrand. The theory of John A. Nordstrand is that he was properly appointed as special administrator by the probate court to prosecute the counterclaim for annulment of the marriage; that the superior court could hear evidence and enter a decree for annulment of the marriage after the death of the parties, where no property rights were involved, and that the evidence shows that John Merrick was incompetent to contract the marriage.

The proof of heirship established in the probate court shows that the deceased left him surviving his widow (plaintiff herein) and four children by a previous marriage. In the hearing before the chancellor the attorney for plaintiff argued that in the absence of a proceeding to settle property rights, or for relief other than the annulment of the marriage, the cause of action presented by the counterclaim abated. The following is an excerpt from a colloquy between the attorney for plaintiff and the court:

“Mr. Buresh: I understand this Court is hearing-only the question of the marriage, that is, no property rights are being- considered by this Court at all.
“The Court: None at all.
“Mr. Buresh: I am not putting on any defense. Tour Honor has said he was not hearing anything-with regard to the property rights, just the marriage relation.
‘ ‘ The Court: I am not going- to decide any property rights here.” During the oral argument of the case in this court, the attorneys stated that subsequent to the filing* of the notice of appeal, the will of John Merrick, deceased, which left all of his property to his widow (plaintiff herein), was received and admitted in the probate court as the last will of decedent.

Plaintiff urges that the right of action belonging to John Merrick in his lifetime to bring suit for the annulment of his marriage to her, did not survive his death. In Buslnell v. Cooper, 289 Ill. 260, our Supreme Court pointed out that marriage is a personal relation or status created under the sanction of law, and an action for divorce is of a personal nature; that in the absence of a statute to the contrary the death of one of the parties to such an action abates the action, and that an action for separate maintenance, being-founded on the marriage relation, also abates on the death of one of the parties. The parties have not cited any case decided by a court of review of this State as to whether the rule announced in the Buslmell case extends to a proceeding for the annulmént of a marriage. However, a case involving the question presented for our determination was decided by the Supreme Court of Rhode Island. (Lynch v. Lynch, 34. R. I. 261, 83 Atl. 83.) It appears that Mrs. Lynch filed a petition for divorce. Thereafter, on ascertaining that she had a former husband living from whom she had not been divorced, she amended her petition, alleging that the marriage was void, and praying for an annulment. Her petition was dismissed on the ground that she was in pari delicto with her husband. The Supreme Court found that the chancellor erred and under the practice of that State entered a rule on Mr. Lynch to show cause why the case should not be remanded to the. -chancellor with directions to forthwith enter a “decision” in favor of Mrs. Lynch, granting her petition and annulling the marriage. Between the date of the opinion and the date on which the rule to show cause was returnable, Mrs. Lynch died. Upon the suggestion of her death, the Supreme Court said (83 Atl. 403):

“At the hearing given for the respondent to show cause why said case should not be remitted to the superior court, with direction to forthwith enter a decision in favor of the petitioner, granting her petition and annulling the marriage between her and the respondent, the death of the petitioner was suggested by the respondent. The death of the petitioner renders an order for the entry of a decision in accordance with the opinion impossible. The papers in the cause are transmitted to the superior court.” We are of the opinion that the rule announced in the Bushnell case, that in the absence of a statute to the contrary, the death of one of the parties to a divorce case or a separate maintenance case abates the action, should be applied in a case like the one at bar, where it is sought to annul a marriage.

We call attention to the fact that the sole relief sought by the counterclaim is the annulment of the marriage. The sole issue presented for the determination of the chancellor was whether the plaintiff was the widow of John Merrick. As will he noted, in the colloquy between the chancellor and counsel, the former announced that he was not determining anything as to the property rights. The children of the deceased, who would be necessary parties in settling property rights, were not made parties to the annulment case. We have no doubt that in a proper case a court of chancery would have the right, at the instance of the heirs, or other interested persons, to determine the validity of the marriage even though one of the contracting parties were dead. Here, however, the chancellor expressly stated that he was not attempting to decide any property rights. The decree in this case, in effect, leaves the parties where they were before it was entered. The superior court in the exercise of its equitable jurisdiction would have the right to enter a finding of heirship, providing such finding were incidental to other relief sought. In the instant case the only relief sought was the annulment of the marriage.

Other points have been raised and considered. However, as the points discussed dispose of the case, we will not expand the opinion*

For the reasons stated, the decree of the superior court of Cook county is reversed without prejudice to the right of any interested party in á proper proceeding and in due time to attack the validity of the marriage, and the cause is remanded with directions to enter an order abating both the complaint for separate maintenance and the counterclaim for the annulment of the marriage.

Reversed and remanded with directions.

Hebel and Kilby, JJ., concur.


author: Mr. Justice Hebel

text:
    Harry Joseph, Receiver, Appellant, v. Edward Carter, Appellee.
    Gen. No. 41,872.
    Heard in the third division of this court for the first district at the October term, 1941.
    Opinion filed May 27, 1942.
    Sabath, Perlman, Goodman & Rein, of Chicago, for appellant; Morton C. Chesler, of Chicago, of counsel.
    Prank P. Mies, of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

.This is an action upon a promissory note executed by the defendant, Edward Carter and Eva Ruby Raulston Carter, his wife. The note was in the original amount of $1,250, dated December 14, 1928 and due January 14,1929. An endorsement of payment of $85 on account of principal and $153.10 on account of interest appears on the reverse side of the note under date of January 26, 1931. The note contains the usual confession of judgment clause authorizing any attorney to appear on behalf of the makers, waive service of process and confess judgment in favor of the holder of the note. A statement of claim and cognovit requesting judgment was filed in the municipal court of Chicago on November 28, 1940 and judgment by confession entered on that date against the defendants for the sum of $2,191.82, consisting of the balance of principal, in the sum of $1,165, together with interest thereon in the sum of $846.82, $180 for attorneys’ fees and costs of suit. On December 18, 1940, the defendant, Edward Carter, was served with execution and on December 24, 1940, he filed his petition to vacate the judgment as to him, which petition was allowed.

The facts appearing in this record are that Edward Carter and his wife, Eva Ruby Raulston Carter, made a 30-day loan at the Hyde Park-Kenwood National Bank of Chicago for the sum of $1,250 on December 14, 1928, and executed their promissory judgment note to evidence said loan. On January 26, 1931, an officer of the bank called the defendant in with reference to the default in making repayment of the loan. The defendant Carter told the bank’s officer that he was not in a position to pay the note at that time, and that he needed further time within which to meet the obligation. The bank’s officer advised Mr. Carter that there was a credit balance in the account of Mrs. Carter and that same could be applied on account of and in reduction of the note if that was agreeable to Mr. Carter. Mr. Carter agreed to the application and made arrangements to make further payments on the note at the rate of $25 per month, commencing January 1, 1932. Thereafter, the Hyde Park-Kenwood National Bank of Chicago suspended its business, and the original plaintiff herein, George Crowley, was appointed receiver; upon defendant’s failure to discharge the obligation, Crowley instituted this action on November 28, 1940. Upon Crowley’s resignation, Harry Joseph, as receiver, was substituted as plaintiff in his stead.

The defendant Carter filed his petition to vacate the judgment as to him, upon the grounds that plaintiff’s action was barred by the statute of limitations in that the suit was not brought within 10 years from maturity of the note, i.e. December 14, 1928. Carter alleged that he did not consent and had no knowledge of the payment made on January 26, 1931, and that the time within which suit could be instituted was not extended to 10 years from said January 26, 1931. The fact as to whether or not Carter visited the bank in January 1931, and consented to the application of the balance in his wife’s account toward the reduction of the note is in dispute.

Defendant asserts his defense under the provisions of sec. 17, ch. 83 of the Ill. Rev. Stat. [Jones Ill. Stats. Ann. 107.276], which provides:
“Actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing, shall lie commenced within ten years next after the cause of action accrued ; but if any payment or new promise to pay shall have been made, in writing, on any bond, note, bill, lease, contract, or other written evidence of indebtedness, within or after the said period of ten years, then an action may be commenced thereon at any time within ten years after the time of such payment or promise to pay.” From this provision it appears that where a payment is made upon a note either by the maker thereof or by some one duly authorized by him, or if such payment is made with his knowledge and consent, that, in accordance with the language of the statute, the time within which an action may be brought on the note is extended for a period of 10 years beyond the time of such payment. Upon this theory, the case of Metcalf v. Metcalf, 219 Ill. App. 96, is cited, where the court stated:
“A partial payment on the debt, made by the party originally chargeable, and received thereon by the party who owns the notes which evidence the debt, implies a new promise by the debtor to pay the debt and this is equally true whether the payment is before or after the bar of the statute of limitations has become complete. Kallenbach v. Dickinson, 100 Ill. 427. But such new promise is governed by the statute of limitations in force when the new promise is made. Drury v. Henderson, 143 Ill. 315; Walker v. Warner, 179 Ill. 16; Wellman v. Miner, 179 Ill. 326.” It is also well settled that where payments are made from time to time by one joint maker with the consent of the other, the statute of limitations is arrested as to both debtors, this rule being announced in Edwards v. Harper, 234 Ill. App. 296, where it is said:
“But if there is a payment of either principal or interest with the knowledge, assent or subsequent ratification of the surety or joint maker, the running of the statute is arrested as to both principal and interest.” The following cases are to the same effect: Granville v. Young, 85 Ill. App. 167; McDonald v. Weidmer, 103 Ill. App. 390; Adams v. Douglas, 128 Ill. App. 319. It also seems to be the well-settled rule that a payment on a note to toll the statute of limitations need not be in writing but may be established by parol evidence. In Wright v. Stinger, 269 Ill. App. 224, the court said:
“While a new promise must be in writing to toll the running of the 10-year statute, a payment made upon a note is sufficient to toll the statute if established by parol evidence. (Ott v. Flinspach, 143 Ill. App. 61; Hennessey v. Walsh, 142 Ill. App. 237; Willett v. Maxwell, 169 Ill. 540; Lowery v. Gear, 32 Ill. 382.)”

Plaintiff contends that the evidence clearly demonstrates that the defendant authorized and had knowledge of such a payment as would toll the statute of limitations, and that the trial court erred in finding that the defendant did .not authorize the application of the hank balance in reduction of the note.

The defendant — as we have heretofore suggested in this opinion — interposed the defense of the statute of limitations, and calls our attention to plaintiff’s contention that the evidence discloses that the said defendant authorized the bank to apply the proceeds in the bank belonging to his wife as a partial payment upon said note, and that by reason of said authorization, and application by the bank, that the statute of limitations tolled against said defendant. Plaintiff also contends that by reason of the language contained on the face of the note, at the time that the debtors executed same, granting authority to the bank the right to apply proceeds in the bank as a payment, that the action of the bank in applying the proceeds of Eva Ruby Raulston Carter in the bank upon said note, caused the statute of limitations to toll against Edward R. Carter. Defendant in support of his position that this action is barred by the statute of limitations calls attention to the case of Kallenbach v. Dickinson, 100 Ill. 427, in which the court said:

“Dickinson was in fact but a surety on a note, Wenzel being its maker and the principal debtor. Wenzel made several payments upon the note within the sixteen years, but these were neither expressly authorized by Dickinson before being made, nor ratified, nor assented to by him afterwards. The question is, do the payments thus made afford sufficient evidence of a subsequent promise by Dickinson, to remove the bar of the Statute of Limitations as to him?” In holding that the statute of limitations did not toll as to Dickinson, the court in that case further said :

“In order that Dickinson shall be concluded by the payments of Wenzel, it must be determined that Wenzel was Dickinson’s agent, not only for the purpose of liquidating the note by payment, but also for the purpose of doing what in legal estimation is necessary to make a new promise that will remove the bar of the statute.” Upon this question there is the case of Boynton v. Spafford, 162 Ill. 113, which was a suit upon a promissory note signed by Dettmer and Spafford. Spafford interposed the statute of limitations, and there the court said:
“No payments were made by Spafford nor was the time of payment extended by him, as was found by the Appellate Court. Under this finding of fact the note was barred by the statute, so far as Spafford was concerned, unless the payments made by the other joint maker, Dettmer, or the extension of payment procured by him, kept the note alive. We understand the law to be settled that a payment by one. joint debtor or an extension procured by him, without the knowledge or assent or subsequent ratification by the other, will not operate to bind such other joint debtor. This is the doctrine of Kallenbach v. Dickinson, 100 Ill. 427, and we think it is well sustained by authority.” In a like case, Waughop v. Bartlett, 165 Ill. 124, the court said:
“Since the decision in the case of Kallenbach v. Dickinson, 100 Ill. 427, the law has been recognized as being that one joint maker of a note could not, by payment thereon, or any other act, stop the running of the Statute of Limitations against another joint maker unless it appeared that the party making the payment was the agent for that purpose.” And finally, in the case of Edwards v. Harper, 234 Ill. App. 296, the defendant John Harper pleaded the statute of limitations, claiming that he was surety upon the note and that all payments made on the note were made by James Harper, without his knowledge, consent, or acquiescence, and were not ratified by him. There the court said: “A partial payment on a promissory note by one of several makers will not prevent the running of the Statute of Limitations . . . But if there is a payment of either principal or interest with the knowledge, assent or subsequent ratification of the surety or joint maker, the running of the statute is arrested as to both principal and interest.”

In the discussion of the question involved in this appeal, it is important that we consider the provision of the note which was executed by Mr. and Mrs. Carter. This provision is as follows:

“Said Bank or legal holder hereof is hereby authorized and empowered at any time to apply the payment of any liability or liabilities, whether the same be due or not, of the undersigned, to said Bank, or to the legal holder hereof (including any liability or liabilities of any partnership created while the undersigned may have been or be a member thereof), whether the same be due or not, all property real and personal, of every kind and description, including balances, credits, collections, moneys, drafts, checks, notes, bills or accounts (whether on hand or in transit) of the undersigned.” It appears from the facts before us that long prior to the expiration of the statute of limitation, the bank, pursuant to the foregoing authority extended to it by the defendant Carter and Mrs. Carter, applied-a balance standing to the credit of Mrs. Carter. It is contended, therefore, that the time within which an action could be brought on the note was extended for a period of 10 years from the date of such application. The receiver of the bank calls our attention to the case of Willett v. Maxwell, 169 Ill. 540, where the court, in considering this question, used language which seems to carry with it a recognition that if the maker of an instrument authorizes the holder thereof to make application of credits, such application by the holder of the credit will result in the tolling of the statute of limitations. The court there stated:
“Without stopping to consider whether or not it is meant by the statute that the payment as well as the new promise must be made in writing, it is apparent that the evidence of these payments was preserved in writing on the note itself by the endorsement of the one authorized to make it; and inasmuch as there was no dispute as to the payments, it is clear, we think, that the evidence of such payments was in writing. It is not, of course, meant to be said that the payee of a note may endorse payments thereon which were not made by any one authorized to make them, and thus avoid the Statute of Limitations.” It appears from the provision in the note in the instant case that the bank was authorized to apply the payment of any liability, whether the same be due or not, of the makers of the note to said bank. The bank did apply what was due to Mrs. Carter in partial payment of the note. It would seem that this application was authorized at the time the note was executed and the loan received from the bank, and it seems reasonable that the endorsement that was made by the bank was sufficient to arrest the running of the statute of limitations, and followed the rule of other jurisdictions that where a depositor in a bank is indebted to it, the bank has the right to apply credits on the depositor’s notes and the application is sufficient to arrest the running of the statute of limitations. Plaintiff cites a case entitled Park Bank v. Schneidermeyer, 62 Mo. App. 179, on this exact question, where the court, in holding that the action on the note was not barred, said:
“It is a well settled principle that, where a depositor in a bank is indebted to the bank by bill, note, or other indebtedness, the bank has the right to apply so much of the funds of the depositor to the payment of his matured indebtedness as may be necessary to satisfy the same. 2 Morse on Banks and Banking, sec. 559; Bolles on Banks and Dep., sec. 403; Bank v. Newton, 8 Bradwell (Ill.), 563; Bank v. Hughes, 17 Wend. 94; March v. Bank, 34 Barb. 228. In this state, it has been expressly decided that when a discount has been made by a bank and the note has matured, so as to create an indebtedness from the depositor to the bank, all funds of the depositor which the bank has at the date of the maturity of the discounted note, or which it afterward acquires in the course of business with him, may be applied to the discharge of his indebtedness to the bank. Nuench v. Bank, 11 Mo. App. 144; Ehlerman v. Bank, 14 Mo. App. 591; Bank v. Carson, 31 Mo. 191. The case under the law is not different than if the defendant, when he gave his notes to plaintiffs, had said to them: ‘ that any deposits I have with you, when my notes mature, or that I may thereafter have, I authorize you to apply to the payment of my notes, till they are discharged. ’ It may be assumed that if the defendant had expressly given the plaintiffs such direction, and in pursuance thereof they had made the application of the defendant’s deposits to the payment of his note, he would not make the contention that he does. The defendant can no more be heard to claim the payment was an involuntary one, than if it had been made by an agent expressly authorized by him.” When we come to consider the cases and authorities cited, we are of the opinion that the application of the balance on deposit with the bank was fully authorized, and that the bank was justified in making this application. While it is true that they asked Mr. Carter if it would be all right to make this application, and the evidence seems to indicate that he did consent, we believe that the provision in the note fully authorized the bank to make the application, and that Mr. Carter is not in a position to deny the agency of the bank to make the application which he and Mrs. Carter themselves created at the time they executed the note. It is apparent that the language of the note was a conditional promise by the Carters to make the payment made on January 26, 1931 upon the condition that there were credits in the accounts of the defendants, or either of them. On January 26, 1931, there were credits in the account of Mrs. Carter; under the authority given the bank in the note itself, the application was made.

A further authority is called to our attention in the case of Desha Bank & Trust Co. v. Quilling, 118 Ark. 114, 176 S. W. 132, LRA 1915E, 794, where the court recognized the rule that where a bank applies credit standing in the name of its debtor on account of the note of the debtor, the statute of limitations is tolled, and said:

“The bank had the right to credit this deposit on the note, but this right to so credit the deposit did not toll the Statute of Limitations. It took the exercise of that right to accomplish that result. Steeleman v. Atchley, 98 Ark. 294, 135 S. W. 902.” So, in the instant case, while the right to credit the deposit on the note did not toll the statute of limitation, the exercise of that right and actual application of the deposit in partial payment of the note did toll the statute. See also notation at page 795, Lawyer’s Reports Annotated, 1915E, and New York Fire Ins. Co. v. Tooker, 4 N. J. L. J. 334. Under the facts and circumstances of the case before us, we are of the opinion that the statute of limitations was tolled, and that the court was in error in not entering judgment against defendant Edward Carter for the amount that was due on the note in question.

Furthermore, in an action on a note, the maker, asserting the statute of limitations as a defense, has the burden of proving that action was barred by limitation. From the evidence as we find it, the defendant Edward Carter did not establish by a preponderance of the evidence the defense offered by him. It appears from a case which was before this court, entitled Weiland v. Weiland, 297 Ill. App. 239, that the court said:

“Counsel argues that defendant’s testimony as to interest payments is of no avail to plaintiffs, because both the original and amended complaints alleged that nothing was paid on principal or interest, and that no law is better settled than that proofs without allegations are just as unavailing as allegations without proofs. However, the statute of limitations was interposed as one of the defenses, and being an affirmative defense, it was incumbent upon defendant to maintain the same by competent evidence. Since her own testimony disproves the contention that the statute had run, she cannot very well complain thereof. ’ ’

To the same effect is Schell v. Weaver, 225 Ill. 159, where the court said:

“But appellee was not required, in the first instance, to provó that his claim was not barred by the Statute of Limitation. That was an affirmative defense of appellant. By invoking the Statute of Limitations he assumed the burden of proving his defense. His position was in nowise different from what it would have been if the plea had been written and had been traversed by appellee. Some authorities may be 'found laying down a different rule, but the weight of authority and the better and more logical reason are to the effect that the Statute of Limitations is an affirmative defense, and the burden of proving it is on the party pleading it.” It appears from the record that defendant Edward Carter visited the bank on January 26, 1931, and authorized the bank to apply the balance in the account of Mrs. Carter toward the payment of the note and that such application resulted in the making of a payment which tolled the statute. As has already been stated, defendant Edward Carter signed the note, thereby authorizing the bank to make the application. He is not, therefore, in a position to deny that such authority was given the bank. Under the terms of the note the statute of limitations was tolled by the application of the credit in the account of Mrs. Carter.

As indicated, we are of the opinion that the court erred in finding the issues against the plaintiff, in so far as defendant Edward Carter was concerned. The order vacating and setting aside the judgment as to the defendant Edward Carter is, therefore, reversed and the cause remanded, for the reasons stated in this opinion, with directions that the trial court, in accord with the opinion of the Supreme Court in the case entitled Scott v. Freeport Motor Casualty Co., 379 Ill. 155, set aside the order vacating and setting aside the judgment as to the defendant Edward Carter and enter judgment against the defendant Edward Carter for $2,191.82.

Order vacating and setting aside judgment as to defendant Edward Carter is reversed and cause remanded.

Burke, P. J., and Kiley, J., concur.