text:
    L. B. Piper & Company, Appellee, v. Yellow Cab Company, Appellant.
    Gen. No. 31,744.
    1. Directing verdict and demurrers- to evidence — construction, of evidence at close of plaintiff’s case regarded on, defendant’s motion to direct. Under defendant’s motion at the close of plaintiffs case that the court instruct the jury to find the defendant not guilty, the court is bound to consider the evidence most favorable to the plaintiff which the jury might believe in arriving at its conclusion.
    2. Appeal and error — presumption favoring credibility of testimony. Upon the claim of appellant that the evidence does not support the verdict the court will indulge every intendment favoring the credibility of the testimony.
    3. Highways and streets — motorist’s right to rely on right of way statute. An automobile driver has the right to rely upon a law that at a road intersection he shall have the right of way over all approaching on his left and shall yield the right of way to all approaching on his right although in exceptional instances he may be guilty of contributory negligence by insisting on his right.
    4. Highways and streets- — speed' of taxicab across intersecting streets as negligence. A rate of 30 miles per hour by a taxicab traveling across intersecting streets in the city of Chicago amounts to negligence on the part of the driver.
    5. Highways and streets — contributory negligence in collision of automobiles at street intersection as question for jury. In an action for damages to a motor truck with right of way, being driven 10 miles an hour at a street intersection, and colliding with a taxicab driven at 30 miles an hour onto the intersection contrary to the right-of-way rule, the question of the contributory negligence of the truck driver in continuing over the street intersection was for the jury even though he might have seen the taxicab at a sufficient distance away to have enabled him to cross in safety.
    6. Highways and streets — contributory negligence of automobile driver relying on law observance as question for jury. In an action for damages to a motor truck being driven 10 miles an hour at a street intersection and having right of way, caused by a collision with a taxicab driven 30 miles an hour onto the intersection and in violation of the right-of-way rule, the question of the contributory negligence of the truck driver was for the jury in view of his having the right to rely on the cab driver’s stopping and permitting him to cross as having the right of way.

      7. Highways and streets — applying rules for crossing railroad tracks to automobiles at street intersection. The rule that one approaching the track crossing of a street ear or railway which has its own right of way, is warned by the presence of the crossing, cannot be applied in a collision of automobile at a street intersection.
    8. Highways and streets — duty of automobile driver approaching street intersection. The law creates for the driver of a motor vehicle approaching a street intersection a right of way as to all who approach from his left and places on him the duty of looking and listening for those approaching from his right.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. John H. Lyle, Judge, presiding.
    Heard in the third division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed November 23, 1927.
    Rehearing denied December 9, 1927
    Samuels, Costello & Greenberg, for appellant; Benjamin Samuels and Edward Wolfe, of counsel.
    Nicholas J. Mascha, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

This is an appeal from a judgment of the municipal court of Chicago, in the sum of $221.00, in favor of the plaintiff below, for damages to an automobile truck, by reason of a collision with a Yellow Cab, the property of the Yellow Cab Company, a corporation, at the corner of Larrabee street and Division street, two intersecting streets of the city of Chicago.

The testimony shows that one Grover H. Piper, secretary and an employee of L. B. Piper & Company, plaintiff below, on September 19, 1924, was driving a certain Buick three-quarters ton truck, belonging to the Piper Company, over and along Larrabee street —a north and south street — in a southerly direction; that, according to- his testimony, as he approached Division street he slowed down to about 8 or 10 miles an hour and looked in both directions before crossing, but could not see the cab approaching; and that he could see a distance of 200 feet. He testified further that he then proceeded to cross Division street, and had reached the westbound street car track on that street when his truck was struck by the cab coming from the east. A collision being evident, the cab apparently attempted to turn in the direction in which the truck was proceeding. The two cars landed against a steel post at the intersection of the two streets. The accident happened about 10 o’clock in the morning on a clear day.

Sam Angelo, a witness called on behalf of the plaintiff testified that he was in a barber shop about four doors east of Larrabee street; that he heard a horn blow and saw the cab going by at a speed of about 30 miles an hour. He further testified that after the collision he saw skid marks, showing that the cab had skidded for a distance of approximately 25 feet. Louis Schultz, a witness for the plaintiff, testified that he was in the barber shop talking to the witness Angelo and he saw a Yellow Cab going west in Division street at between 30 and 35 miles an hour; that he heard a crash and ran out; that the barber shop in question was from 75 to 100 feet east of the corner of the two streets. He testified further that he saw skid marks extending about 35 feet behind the cab.

No testimony was introduced on behalf of the defendant below, so that the record stands only on the testimony of Piper and the other witnesses testifying on behalf of the plaintiff.

Counsel for defendant presents but one proposition to this court, namely, that the verdict is against the law and the evidence, and that the trial court erred in not instructing the jury to find the defendant not guilty at the end of the plaintiff’s case. Such a motion, when made and relied on, amounts to a demurrer to the evidence, and in considering the case, upon such a motion, neither the trial court nor the Appellate tribunal on review may weigh the evidence and determine in whose favor it preponderates, but must consider the evidence most favorable to the plaintiff, which the jury may have believed in arriving at its conclusion. Hansell-Elcock Foundry Co. v. Clark, 214 Ill. 399. The court in its opinion in that case, at page 405, says: “In determining this question we are bound to consider the evidence most favorable to the plaintiff which the jury might believe in arriving at a conclusion favorable to the plaintiff, and if that evidence fairly tends to support or establish the cause of action stated in any count of the declaration, and does no violence to the law proper to be applied to the circumstances out of which this suit arose, then the action of the trial court in refusing these instructions must be sustained.” While the defendant below presented instructions and the cause was submitted to the jury, its brief is devoted entirely to the legal proposition that the evidence is not sufficient to support the verdict and under such circumstances every intendment must be indulged in by the reviewing court in favor of the credibility of the testimony.

Collisions of this kind and character are of frequent occurrence and have been passed upon in almost every jurisdiction, and each case is governed by the particular facts involved.

Plaintiff below, in the trial and here, invokes the statute of the state of Illinois to the effect that a person driving over and upon and along a public highway has the right of way, at the intersection, of a street or highway over vehicles approaching on his left, and that a person approaching an intersection should give the right of way to a person approaching said highway on his right. It is true and the courts have so decided, that there are instances where, in spite of the statute, a person approaching an intersecting highway, even though under the statute he would be given the right of way, would, nevertheless, by his conduct, be guilty of contributory negligence if lie continues on his way under such circumstances as to constitute contributory negligence. But to say as a matter of law that a person so approaching a highway, in spite of the right granted him by the statute, would be required to stop and give the right of way to another, approaching on his left, under all circumstances, would, in effect, be to nullify the statute and deprive him of the right he might have by reason of its enactment. Moreover, if we should say that he would have no right to rely upon the statute and the rules of the road, then the enacting of such a statute is a useless thing, because no motorist could rely upon it nor could he rely upon the approaching motorist on his left obeying the statute and the rules of the road. In other words, it would put a premium on the action of a person utterly disregarding the relative rights of motorists.

The testimony, which appears to be undisputed, is that Piper was proceeding at from 8 to 10 miles an hour and that the cab was going at the rate of approximately 30 miles an hour. There is no testimony as to the character of the district in question, but it is evident that such a rate of speed, as the testimony shows the cab was traveling, across intersecting streets in the city of Chicago, would amount to negligence on the part of the driver of the cab. The only question involved is whether or not the driver of the Buick truck was guilty of negligence which contributed to the accident, and that the circumstances of this particular case are such that this court would be called upon, as a matter of law, to say that such was the fact. The rule is that where there is a contrariety of evidence and the testimony by fair and reasonable intendment will authorize the verdict, a reviewing court will not set it aside. In the case at bar, under a motion to direct a verdict, we have only the evidence on behalf of the plaintiff, and necessarily must give it its full credit, and resolve every intendment in favor of its truth.

Great stress is laid upon the fact, by counsel for defendant, that plaintiff below was not worthy of belief because if his statement was correct, that he could see a distance of 200 feet from Division street before crossing, that then he would have seen the on-coming cab, and by proceeding along his course he was guilty of contributory negligence; that by reason of this testimony and its improbability, he should not be given due credence, but under the manner in which this question is raised in this court, namely, that the trial court should have directed a verdict, we can only assume that the jury believed the plaintiff. It is not inconceivable that the fact, as stated by him, may be true as the rate of speed at which the cab was going would cause it to cover that distance in a remarkably short period of time; and there may have been obstacles in the street or buildings on the comer of the two intersecting streets, which might have made it impossible, under all the circumstances, to have seen the approaching cab. It may be true, moreover, that even if he had seen it at that distance, it would not have been negligence to continue on his way. We believe that under the circumstances in this case it was a question for the jury to decide, under all the facts and circumstances, whether the driver of the Buick truck, with the right of way granted him by law, was guilty of contributory negligence, in continuing over and across the street intersection, even though he may have seen the Yellow Cab at a sufficient distance away to have enabled him to cross in safety, and in this regard we believe further that he had a right to rely upon the statute and that the driver of the cab would obey the legal requirement which the law imposed upon him, and would stop and allow the Buick truck to cross; and that not doing so, it became and was purely a question of fact for the jury. Heidler Hard wood Lumber Co. v. Wilson & Bennett Mfg. Co., 243 Ill. App. 89; Roth v. Fleck, 242 Ill. App. 396.

Counsel for the defendant below cite a number of railroad cases, in support of the proposition that it was the duty of the plaintiff when approaching Division street to stop, look and listen. In our opinion, these cases are not applicable. The rule as to one approaching a railroad crossing is different from that of an automobile driver approaching a street intersection. In the case of a railroad crossing the train is operating over and along its own right of way and is commonly known as an unusually dangerous agency and not as capable of being managed as an automobile approaching a street intersection. The same rule applies to street cars. Tracks of railway and street car companies, in themselves, offer a warning to an approaching vehicle. While it may be argued that a street intersection also offers a warning, nevertheless, the statute in our opinion, has provided a right of way to the driver of a motor vehicle approaching such an intersection over one approaching on his left. It also becomes the duty of the one approaching a street intersection to beware of vehicles approaching on his right. The latter is, therefore, placed in the position of looking and listening for vehicles approaching the street intersection under such circumstances and not the one approaching the intersection in full reliance upon the statute giving him the right of way.

For the reasons stated, the judgment of the municipal court is affirmed.

Judgment affirmed.

Taylor, P. J., and Holdom, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Matchett

license: Public Domain

text:
    Alonzo Gunn, Plaintiff in Error, v. Eric Williams et al., Defendants in Error.
    Gen. No. 31,261.
    1. Replevin — right of action where automobile originally obtained in illegal transaction. After delivery of an automobile to the winner at a raffle is completed, his right subsequently to maintain an action of replevin is not affected by the fact that his ownership' of the automobile and right to possession were obtained in an illegal transaction.
    2. Replevin — sufficiency of evidence of identity of automobile. Evidence of the identity of an automobile replevied as the one belonging to plaintiff, held prima facie sufficient, the question of identity not being raised by the pleadings.
    Error by plaintiff to the Superior Court of Cook county; the Hon. Jesse Holdom, Judge, presiding.
    Heard in the first division of this court for the first district at the March term, 1927.
    Reversed and remanded.
    Opinion filed December 12, 1927.
    A. L. Williams, for plaintiff in error.
    Bayley, Merrick, Webster & Gregory, for defendants in error.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Plaintiff sued in replevin for the recovery of an automobile. The sheriff took the property by virtue of the writ and delivered it to the plaintiff. The Standard Motor Securities Corporation entered its appearance and filed its plea, denying that it took and detained the property, alleging that the right of property was in Eric Williams and not in the plaintiff, and further alleging that the plaintiff ought not to have its action for the reason that the property was obtained as a result of a raffle in violation of section 180 of the Criminal Code of the. State of Illinois, Cahill’s St. ch. 38, ¶ 401. A jury was waived and the cause tried by the court. At the close of plaintiff’s evidence, on motion of defendant, the issues were found for the defendant, the court finding the property in the defendant John Doe, alias Standard Motor Securities Corporation, and a writ of retorno habendo was ordered.

The evidence of the plaintiff tends to show that on September 7, 1925, he attended a raffle of an automobile, which was conducted in the interest of some church society; that he purchased $50 worth of tickets and was informed by one Eric Williams, who was apparently in charge of the raffle, that he, plaintiff, had the winning number; that he was thereupon announced the winner, the automobile was delivered to him and he rode around in it for awhile and then asked for a bill of sale. Eric Williams told him that he, Williams, would have to go to Highland Park to get a bill of sale, and Williams thereupon drove the car away ostensibly for the purpose of getting such bill of sale, but never returned it. Plaintiff says that he next saw the car in Evanston in the possession of the Standard Motors people. The evidence indicates, practically without contradiction, that the delivery of the automobile to plaintiff was completed, and that being true it was immaterial that the ownership and right to possession were secured in an illegal transaction. (See Cook v. Meyers, 166 Ill. 282; Brady v. Horvath, 167 Ill. 610; Dee v. Sears-Nattinger Automobile Co., 141 Iowa 610.)

The defendant contends that there is no evidence tending to identify the particular automobile replevied as the car which plaintiff won at the raffle, and says (citing Anderson v. Talcott, 1 Gil. (Ill.) 365; Constantine v. Foster, 57 Ill. 36; Pease v. Ditto, 189 Ill. 456) that since the burden of proof was upon the plaintiff and he could recover only on the strength of his own title rather than on the weakness of that of his adversary, this failure of proof was sufficient to preclude the plaintiff from recovering. The identity of the automobile, however, was not raised by any averment of the pleadings, and we think the proof was prima facie sufficient on this point. There is no proof in the record tending to show any right of possession in the Standard Motors Securities Corporation, and it was error for the court to order the automobile returned to it.

For the error indicated the judgment is reversed and the cause remanded.

Reversed and remanded.

O’Connor and McSurely, JJ., concur.


text:
    Caro Lina Hanson, Appellant, v. Burton Clark et al., Appellees.
    Gen. No. 31,651.
    1. Former adjudication — decision on application of statute to widow’s share in husband’s estate not concluding right to withdraw renunciation of legacy. A decision of the Supreme Court to the effect that section 12 of the Dower Act, Cahill’s St. ch. 41, ¶ 12, was not applicable to determine the distributive rights of a widow in her husband’s estate upon her renunciation of her legacy under his will and election to take her legal share does not conclude her in her subsequent request to the probate court to set aside her renunciation and election.
    2. Appeal and error — widow’s renunciation of rights under husband’s will not voided by decision on her distributive right in his estate. A decision of the Supreme Court to the effect that section 12 of the Dower Act, Cahill’s St. ch. 41, ¶ 12, not applicable to determine the distributive rights of a widow in her husband’s estate upon her renunciation of her legacy under his will and election to take her legal share, does not ipso facto have the effect of rendering void the renunciation and election.
    3. Wills — right of widow to withdraw renunciation to take under husband’s will. A widow who, after advice of counsel, has duly filed her renunciation to take under a legacy in her husband’s will and elects to take her legal rights is entitled to have the same set aside because of the fact that she was mistaken and misapprehended the legal rights and effects which would result from such renunciation, no rights of innocent third parties having intervened.
    4. Evidence — presumption of knowledge of law. Everyone is presumed to know the law, although, like all general rules, there are exceptions.
    Appeal by plaintiff from order of distribution entered in the Circuit Court of Cook county on appeal from Probate Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding.
    Heard in the first division of this court for the first district at the March term, 1927.
    Reversed and remanded.
    Opinion filed December 12, 1927.
    Rehearing denied December 27, 1927.
    Musgrave, Oppenheim, Price & McKeever, for appellant.
    Morse Ives and Charles C. Bodenstab, for appellees; Rose & Symmes, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

•The facts in this case are not in dispute. In 1922 Burton Hanson, a resident of Cook county, died testate. His will by its terms provided for the payment of certain specific legacies and for the payment of a legacy to his widow. The residue of the estate was bequeathed to Burton Clark and the residuary legatees. This will was admitted to probate in the probate court of Cook county on October 31, 1922. Burton Hanson left neither child nor any descendant of a child surviving him. At the time of his death he owned no interest in any real estate except an interest in residence property held in joint tenancy with the widow.

On October 31, 1923, his widow, Caro Lina Hanson, filed in the probate court her renunciation of the legacy provided for her by his will and, as the petition for the residuary legatees avers: “And thereupon she elected to take in lieu thereof her legal share of the estate of said Burton Hanson, deceased, and then claimed that share to be one-half of all the real and personal estate that shall remain after the payment of all just debts and claims against the estate of said Burton Hanson, deceased.”

A partial distribution had theretofore been made by agreement, the parties to the controversy reserving their rights in the matter. The petition averred that upon her renunciation Mrs. Hanson became entitled to only one-third of the property of the decedent and asked that a further partial distribution be made upon that basis. The widow answered admitting the filing of her renunciation and election to take one-half of all the real and personal estate that should remain after the payment of the debts and claims, and denying that upon her renunciation she became entitled to only one-third of the property of the estate. The executor having also answered, the matter was heard by the probate court and an order entered finding that the widow was entitled to take one-half, and later, upon appeal by the residuary legatees to the circuit court, a similar order was entered. The probate and circuit courts held that section 12 of the Dower Act (Cahill’s St. ch. 41, ¶ 12; Smith-Hurd’s Ill. Rev. St. 1919, p. 1122, ch. 41) was applicable, and that under its provisions the widow was entitled to one-half of the estate. The residuary legatees appealed to the Supreme Court (Clark v. Hanson, 320 Ill. 480), and that court held that said section 12 was not applicable, reversed the judgment and remanded the cause “for such other and further proceedings as to law and justice shall appertain.” The cause was reinstated in the circuit court on July 7, 1926, and again came on for hearing, at which time counsel for the widow contended that since section 12 of the Dower A.ct had been held to have no application to the estate of the decedent, the renunciation made thereunder became a nullity, and that the widow was entitled to take the provision made for her in the will of the decedent.

It was on the other hand contended, and the contention is urged here, that the widow is entitled to receive only one-third of the personal estate after the payment of all debts as provided in section 10, Cahill’s St. ch. 41, 10, of said act with reference to dower. No additional evidence was presented upon this second hearing, and the transcript of the proceedings shows only certain excerpts from the argument of counsel and remarks by the court. In the course of the hearing-counsel for the widow moved that the hearing should be suspended until they could appear before the probate court and obtain leave to withdraw her renunciation. This motion was denied. The court was requested by the widow to hold as a proposition of law “that the renunciation of Caro Lina Hanson, widow, filed in the Probate Court became inoperative, null and void upon the finding by the Supreme Court that Section 12 of Chapter 41 of the Revised Statutes of Illinois was not applicable to an estate of a decedent leaving no real estate.” The court refused to so hold. Appellant also requested the court to hold as a proposition of law “that the widow, Caro Lina Hanson, is entitled to have and receive the property, legacies and benefits provided for her in the terms of the will of the decedent Burton Hanson.” This proposition was also refused. The court thereupon entered an order of distribution which, in part, was as follows:

“The Court further finds that on October 31, 1923, said Caro Lina Hanson, widow of said decedent, filed in the office of the Clerk of the Probate Court her proper written renunciation and election, in and by which she renounced and quit-claimed any devise or other provision made to her by the last will and testament of said decedent, and elected to take in lieu thereof her legal share of the estate of said decedent ; that said renunciation and election were entered by the Clerk of the Probate Court at large upon the records of the Probate Court and that said renunciation and. election are good and sufficient in law; that said decedent died testate, leaving no child or descendants of a child him surviving, and at his death owned no real estate or any interest therein, and that upon the filing of said renunciation and election the said Caro Lina Hanson became and now is entitled to receive absolutely and in her own right one-third of all the estate of said decedent in the hands of said Executor which shall remain after the payment of all just debts and the expenses of administration of said estate.”

The order further provided for distribution in conformity with these views. The widow thereby receives $18,000 less than she would take under the will, and she appeals.

It is urged by the residuary legatees that the decision in Clark v. Hanson, supra, is controlling, and that the necessary effect of that decision is that the widow here was entitled to take only one-third of the estate. On the other hand, the widow contends that neither in its opinion nor in its order of remandment did the Supreme Court make any finding to that effect nor pass upon the question of whether the widow was finally concluded by her renunciation. It is further contended in her behalf that the renunciation was filed by her under mistake of her legal rights, from which the court, exercising its equitable power, will grant relief; and that, at any rate, the trial court erred in refusing to grant her application for leave to withdraw her renunciation or allow her motion for a continuance to permit application to be made to the probate court to that end.

We are not convinced that the questions arising upon this record may be regarded as settled by the opinion of the Supreme Court upon the former appeal. The question there decided was whether the widow, having renounced, could take distribution according to the provisions of section 12 of the Dower Act, Cahill’s St. ch. 41, ¶ 12, and that question is answered in the negative by the court. The residuary legatees there urged that section 12 was unconstitutional. The court held that it was not applicable, but it in no way decided, nor was it necessary to a decision in that case, nor perhaps under the pleadings was it possible for the court to determine, whether the effect of such decision would be to render her renunciation void or entitle her to the opportunity of having it set aside as being made on account of a mistake and misapprehension of her legal rights. We think the questions arising upon this record have not been decided by the Supreme Court.

In the next place, we think it is clear that the decision of the Supreme Court to the effect that section 12 of the Dower Act was not applicable would not ipso facto have the effect of rendering the renunciation and election theretofore filed void. The renunciation was filed within the time provided by the statute and was the voluntary act of the widow, taken after due advice by counsel, and we think that renunciation and election would stand until such time, if ever, as she might ask, upon some proper ground, that it should be set aside.

The controlling question in this case therefore is whether a widow who, after advice of counsel, has duly filed her renunciation to take under her husband’s will is entitled to have the same set aside because of the fact that she was mistaken and misapprehended the legal rights and effects which would result from such renunciation, no rights of innocent third parties having in the meantime intervened. The precise question, so far as we are aware and so far as the briefs disclose, has never been decided in this State. There is a wealth of authority of this and other jurisdictions upon the closely related questions of what is or what is not a mistake of fact, what is and what is not a mistake of law, and for what mistakes courts of equity or of law will grant either affirmative or negative relief.

The ancient and fundamental principle is that everyone is presumed to know the law. Ignorantia juris non excusat is the language in which the principle is stated in the Roman law, although that law recognized some exceptions to the rule. Even slight reflection discloses that this fundamental principle must lie at the basis of any science of jurisprudence. Like all general rules however, it. has its exceptions.

Thus in Lansdowne v. Lansdowne, 2 Jacob & Walker’s Rep. 205, Mosley 364, it appeared that one Mary Lansdowne having four sons, Richard, John, Thomas and William, by settlement gave to each of them a part of her real estate after her death. John and Thomas having died without issue and intestate, the question arose between the son of Richard and his Uncle William as to the right of succession to Thomas. They consulted one Hughes, not a lawyer, who advised that the Uncle William was the heir at law of the deceased Thomas. Plaintiff having filed his bill against Hughes and William, Hughes admitted his mistake, saying that he had been misled through consulting a book called the “Clerk’s Remembrancer,” and this appearing to be the fact, the court granted the relief asked for in the bill and ordered that certain indentures made under this misapprehension of the law should be delivered up and canceled.

In Cooper v. Phibbs, L. R., 2 H. L. 149, the court held that a complainant taking a lease of a certain fishery, of which legally, through an act of Parliament, he was the actual owner, was entitled to be relieved from, that mistake, Lord Westbury stating:

“It is said, ‘Ignorantia juris haud excusatbut in that maxim the word ‘jus’ is used in the sense of denoting general law, the ordinary law of the country. But when the word jus’ is used in the sense of denoting a private right, that maxim has no application. Private right of ownership is a matter of fact; it may be also the result of matter of law; but if parties contract under a mutual mistake and misapprehension as to their relative and respective rights, the result is that that agreement is liable to be set aside, as having proceeded upon a common mistake.”

The author of Pomeroy’s Equity Jurisprudence (see 4th Ed. vol. 2, § 849, p. 1734), after reviewing the cases in the different jurisdictions, lays down this general rule:

“Wherever a person is ignorant or mistaken with respect to his own antecedent and existing private legal rights, interests, estates, duties, liabilities, or other relation, either of property, or contract, or personal status, and enters into some transaction the legal scope and operation of which he correctly apprehends and understands, for the purpose of affecting such assumed rights, interests, or relations, or of carrying out such assumed duties or liabilities, equity will grant its relief, defensive or affirmative, treating the mistake as analogous to, if not identical with, a mistake of fact.”

Coming somewhat. closer to the precise question, Story’s Equity Jurisprudence, vol. 1, §172, p. 160, says:

“Election under will may be withdrawn when entered into through mistake of legal rights. — A widow who acted under the erroneous impression that she was entitled to half of the real estate left by her husband, whereas in fact she was entitled to dower in only one-third, and she was induced to give up other rights while acting under this belief, will be allowed to withdraw her election upon the real facts being made known to her as to what property she would legally take. There are two principles involved in this case, one as to mistakes of law, and the other as to the requisite of a valid election. Here the widow not only acted respecting her rights in and to the property of her deceased husband under a mistake of law, but she also exercised her right to elect certain rights therein in preference to other rights therein while under the same misapprehension of her rights. It also appears that not only was she mistaken as to the character of her rights independent of her husband’s will, but she was also mistaken as to the amount of property she would receive under the several rights between which she made her choice when she made her election. It is a general rule that a mistake of law pure and simple is not adequate ground for relief. But there are well defined exceptions to this rule. A mistake by a party as to his antecedent existing legal right, as distinguished from a mistake as to the legal import of the act done, is one which should be and is recognized as a ground for equitable relief from the consequences of such mistake, where the mistake can be rectified without injury to others.” Lansdowne v. Lansdowne, supra; Cooper v. Phibbs, and In re McFarlin, 9 Del. Ch. 430, 75 Atl. 281, are cited as authorities for this statement of the law.

In re McFarlin, supra, was a case which arose in the State of Delaware. Pursuant to the provisions of the statute of that State, a widow appeared in the orphans’ court and elected to take her dower in lieu of the provision made for her in the will, which barred such dower. Her election was duly recorded. It was made to appear that at the time of her election she believed, upon advice of counsel, that upon renouncing (her husband having left no children him surviving) she would be entitled to hold one-half of the real estate for life and entitled absolutely to one-half of the residue of the personal estate. These essential facts were not denied, but the executor and trustee under the will claimed that her mistake was one of law and not of fact. The opinion of the court in substance states that two principles were involved in the case — one as to a mistake of law, and the other as to the requisites of a valid election; that the widow had acted respecting her rights, not only under a mistake of law but also exercised her right to choose certain rights in preference to others, while under a misapprehension; that she was mistaken as to the character of her rights independent of her husband’s will, and was also mistaken as to the amount of property she would receive under the several rights between which she made her choice. The court said:

“It seems that a mistake by a party as to his antecedent existing legal right, as distinguished from a mistake as to the legal import of the act done, is one which should be and is recognized as a ground for equitable relief from the consequences of such mistake, where the mistake can be rectified without injury to the rights of others.”

In addition to the authorities which we have already cited the court there cites Reynell v. Sprye, 8 Hare 222; Blakeman v. Blakeman, 39 Conn. 320; and the court laid down the general rule:

“Where an election is made under a misapprehension of the law as to her right of dower, even although the mistake resulted from the erroneous advice of her counsel, a widow so electing to take the provision made by law in lieu of that made for her under her deceased husband’s will may be allowed to retract her election, where no rights of third persons who would be injured by a revocation have intervened.”

In Macknet v. Macknet, 29 N. J. Eq. 54, it appeared that Macknet died leaving a will containing certain provisions for his wife, which the will expressly stated were to be in lieu and satisfaction of her right of dower, and all other interests which she might have in his estate, her acceptance of the provisions to be determined by a relinquishment by her in writing of such dower and interest within three months after his decease. The widow, within the time limited, filed her dissent and refused to accept the provisions made for her by the will in lieu of dower, and dower was subsequently assigned to her. Afterwards the executors filed a bill for a judicial construction of the will, and the final decree in that case adjudged that the widow was entitled to receive all the income from the share of her daughter who was then 10 years of age. The daughter then filed her petition setting up that the annual income from her share amounted to not less than $10,000 and prayed that a reasonable allowance out of the same for her fair support, maintenance and education should be made. She also asked that the court might determine whether the surplus or residue of the income, after deducting such allowance, belonged to her or to her mother, and whether, if the surplus was the property of the mother, the executors were bound to pay it over to her. Upon this petition a decree was entered directing that the entire income of the minor should be paid over to the widow and mother during the child’s minority. An appeal was taken and this decree was reversed, the court holding that Mrs. Macknet, under the operation of a certain provision of the will, was not entitled to the surplus of the income of her daughter’s share over the amount necessary for the support, maintenance and education of the minor. Thereupon the widow filed her bill, praying that she be permitted to withdraw her dissent filed in the surrogate’s office and that she might be allowed to accept the provisions of the will in lieu of her dower, nunc pro tunc; and that her election might be set aside and annulled on the ground that she was mistaken as to the probable amount of the minor’s share, and, also, as to the effect of her election on her right to receive that income. She set up facts showing that this would not in the least interfere with the rights of any person having any interest therein. The defendant’s answer to the bill, not denying any of the facts, asserted that the complainant, when she filed her dissent, was under no mistake, except a mere mistake of law, and claimed the benefit of her election. It appeared that the complainant was advised by her counsel that the right of the full benefit of the provision which directed the payment to her of the income of the minor’s share would not be taken away by her refusal to accept the provision made for her in the will in lieu of dower, and that her counsel also informed her that the executors and their counsel concurred with him in his opinion on that subject. She testified that had she known her rights or had she the least suspicion that the minor’s share might be regarded as part of the provision in lieu of dower, she would not have dissented but would have accepted the provision made for her by the will. The proof also showed that when she made her election she supposed that the income of the minor’s share would not exceed from $3,000' to $5,000 a year, and that she therefore considered it prudent not to relinquish her dower, which would, as she supposed, be productive of more income than the provision made by the will; that if she had known that the income of the minor’s share would have amounted to about $10,000 she would have accepted the provision of the will without hesitation. The answer denied that the executors or their counsel expressed the opinion at any -time that the provision as alleged was not one of those intended in lieu of dower, but one of the executors testified that on the hearing of the suit for construction of the will, their counsel “held that Mrs. Macknet took Hattie’s share, without being liable to account for it.” The court said that it appeared that the complainant had been informed that the counsel of the executors had concurred; that it further appeared that neither the executors nor their counsel, at any time before she filed her dissent, stated to her that she would forfeit, by dissent, her right to the surplus of her daughter’s income, or even suggested the existence of a doubt on the subject; that she had a right to know the probable consequences of her dissent, and if she discovered her error while as yet there was time to retract the dissent, and made speedy application for leave to do so, she ought to be placed in statu quo, unless the situation had so changed since her election that it could not be done without prejudice to the subsequently acquired rights of others. Rumbold v. Rumbold, 3 Ves. 65, Wake v. Wake, 1 Ves. 335, were cited. The defendants insisted that the complainant sought to be relieved from a mere mistake of law on her part, but the court said: “Though mistake in matter of law cannot, in general, be admitted as a ground of relief in equity, the rule has its exceptions.” The court cites with approval Kerr on Fraud and Mistake, 398; Hunt v. Rhodes, 1 Pet. (U. S.) 1.

In Evans’ Appeal from probate, 51 Conn. 435, it appeared that one Evans died' testate on or about September 1, 1882, without issue, leaving his wife him surviving. His will directed that after the payment of his debts the residue of his estate should go to his wife, Ann Evans, “for her sole use and.benefit as long as she lives.” She was also named as executrix. On September 25, 1882, she gave a written notice to the probate court that she declined to accept the provisions of the will and claimed in lieu thereof dower and all other rights to which by law she was entitled. On March 19, 1883, she gave written notice to the court that she claimed under the will and under the statute of distribution the use of the entire estate, real and personal, for life, and one-half of the personal estate absolutely. She requested the court to so decree. Her petition was denied. Upon appeal the decree was reversed, the court stating:

“We think that the petition for leave to withdraw was properly addressed to that court, and should have been heard and granted by it. For the declination was the act of a woman who, having reason for believing that she had been fully and correctly advised by a competent person as to her rights, yet remained to a certain extent in ignorance. Without negligence she fell into an error, and before any order of distribution had been made she asked leave to withdraw her declination. This may well be regarded as a case of misapprehension as to rights without fault; as a mistake from the effects of which a court of equity has power to grant relief.”

In In re Osborn’s Estate, 99 Kan. 227, 161 Pac. 601, it appeared that Osborn died testate January 21, 1914. Six days later his widow made an election of record to take under his will. On March 9, 1914, she filed an application to have the election set aside because made under a misapprehension of her rights under the will, brought about through her not having been sufficiently advised. Her application was denied and she appealed. The statute of Kansas required that the election (save in exceptional cases) should be made personally in court and after an explanation of the legal effect of what was to be done. The court found on the facts that the widow was not informed as to her rights under the will and under the law, and that the probate court did not explain to her the effect of the will. The evidence is recited in detail in the opinion. The trial court was reversed and it was held that no election had been made.

In the appeal of McMannis, In re Woodburn’s Estate, 138 Pa. 606, 21 Atl. 16, the Supreme Court of Pennsylvania had occasion to consider a case in which Woodburn, the decedent, by the terms of his will gave to his widow the use of one-third of his estate and to his children the use of the other two-thirds during her life. The widow declared her election to take under the will by writing, signed, sealed and filed in the registrar’s office, and she received money on this basis. During the audit she notified the auditor of her refusal so to take as she had changed her mind. The auditor found that the widow signed the paper electing to take under the will in ignorance of her rights; that in doing so she was ignorantly assenting to what she did not comprehend; that the executors, shortly before the testator’s death called upon the widow, showing her acceptance of the terms of the will but made no explanation of her rights under the will or under the law. The executors at that time believed that she took the same one-third under the will that she was entitled to under the intestate law. There was no claim that the widow had been intentionally deceived or misled, yet the fact was that she signed the paper in ignorance of her rights. The court said:

“The authorities are clear that nothing less than unequivocal acts will prove an election, and they must be done with a knowledge of the party’s rights, as well as of the circumstances of the case. Nothing less than an act intelligently done will be sufficient. She should know, and, if she does not, she should be informed, of the relative values of the properties between which she was empowered to choose. In other words, her election must be made with a full knowledge of the facts. The rule applies with especial force where the widow is called upon, as in this case, to make her election shortly after the husband’s death. Anderson’s Appeal, 36 Pa. St. 476, 492; Cox v. Rogers, 77 Pa. St. 160, 167; Bierer’s Appeal, 92 Pa. St. 265, 266.”

These cases have been cited in the brief of the appellant. The brief of appellees does not attempt to distinguish them, and several of the cases we think cannot be distinguished from the present case upon any material fact. The precise question, as we have already said, has never been passed upon by the Supreme Court of this State, but in Dinwiddie v. Self, 145 Ill. 290 and Moore v. Shook,, 276 Ill. 47, the Supreme Court of this State has approved of the rule that there are mistakes of law which are analogous to, mistakes of fact, and held that in such cases relief will be given.

The record before us discloses that no rights of third persons have here intervened; that the widow was well advised as to her rights; that no fraud or misrepresentation of any kind entered into her election; that she was not in any respect negligent; that she made a choice or an election which clearly must have been the result of misapprehension on her part, not alone of law but of the result which would in fact be brought about by the choice. The rights of widows and orphans are favorites of the law. The ruling of the trial court means the widow will be deprived of $18,000 which her husband desired she should have and that it will be distributed to others whom he did not intend should have it.

We think the court erred in entering the order and in denying the motion to continue the hearing on distribution until such time as the widow might present her request to the probate court to have her renunciation and election set aside. For this error the judgment is reversed, and the cause remanded.

Reversed and remanded.

O’Connor and McSurely, JJ., concur.


text:
    Traders Investment Company, Appellee, v. George J. Kalas and Emma L. Kalas, Appellants.
    Gen. No. 31,855.
    1. Negotiable instruments — when burden cast upon purchaser to show he is a holder in due course. In an action against the makers of a promissory note, their evidence to the effect that the note was executed to a builder upon an agreement that it should not be negotiated until a garage had been completed according to contract, and that it had not been so completed, casts upon the plaintiff, who purchased the note, the burden to prove, under the Negotiable Instruments Act, § 55, Cahill’s St. ch. 98, ¶ 75, that he was a holder in due course.

      2. Negotiable instruments — evidence of good faith by purchaser not justifying direction of verdict in his favor. Where, in an action against the makers of a promissory note, there is evidence to the effect that the note was executed to a builder upon an agreement that it should not be negotiated until a garage had been completed according to contract, and that it had not been so completed, evidence to show good faith by plaintiff, that he had purchased the note on the date of its execution for cash, but not showing how much cash, does not exclude the possibility of bad faith under the Negotiable Instruments Act, and it is therefore error to direct a verdict for plaintiff.
    Appeal by defendants from the Municipal Court of Chicago; the Hon. Alfar M. Eberhardt, Judge, presiding.
    Heard in the first division of this court for the first district at the March term, 1927.
    Reversed and remanded.
    Opinion filed December 12, 1927.
    Rehearing denied December 27, 1927.
    George H. Mollan and William T. Pridmore, for appellants; Ferne Mollan and Mark H. Mollan, of counsel.
    Joseph F. Grossman, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

On March 2, 1926, the plaintiff confessed judgment against defendants for the sum of $461.86 and costs, upon power of attorney attached to a promissory note dated November 27, 1925, payable in 24 consecutive monthly instalments. This note was by its terms payable to the order of the Perfect Construction Company and the statement of claim alleged that it had been duly indorsed before maturity for value and delivered to the plaintiff, who was the legal owner thereof.

The defendants thereafter, on April 14, 1926, made a motion to vacate this judgment and in support of the motion presented affidavits of defendants George J. and Emma L. Kalas. The affidavits in substance stated that the note was given as a part consideration for the construction of a garage by the Perfect Construction Company; that the note was not signed upon the day of its date but prior thereto, namely, on November 10, 1925, and before the construction of the garage was begun; that the contract for the construction of the garage provided that it should be built according to certain plans and specifications; that after the note was given the company proceeded to build a garage on the property but, contrary to the contract, failed to construct same according to the special plans and specifications, the several respects in which the Construction Company had failed to comply with the specifications being particularly set up.

The affidavit of defendant Emma L. Kalas averred “that the pretended note sued upon in this cause was on the 10th of November, 1925, prepared and placed in the hands of John Reiss, to insure his principal that upon the completion of a garage in accordance with certain specifications that such a note would then be available and that the pretended note sued upon is in fact the said proposed note; that said pretended note has never been delivered by the makers, or by anyone authorized to make a delivery for them, and in support of said contention said affiant shows that a proposed garage in said specifications mentioned has never been completed in accordance with said specifications which said completion was the condition precedent required to be fulfilled before the principal of said John Reiss was authorized by defendants to accept said pretended note as valid and binding obligation of the makers.” This affidavit also averred that there was no such person, either natural or corporate, as Perfect Construction Company; that, therefore, no valid indorsement of said pretended note could be made, and that plaintiff was therefore not the legal owner or holder of the note.

An order was entered granting leave to the defendants to defend and a trial by jury was demanded, there being a further order that the affidavit should stand as the affidavit of merits for the defendants.

Upon the trial the plaintiff offered the note sued upon in evidence, to which defendants objected on the ground that the note had not been delivered, but this objection was overruled. In addition to the power to confess judgment, the note states that it was given to evidence an indebtedness for the balance due upon a contract for labor and material furnished by the payee for the improvement of certain premises described, “and the undersigned hereby acknowledges that said contract was satisfactorily completed by the payee (contractor) on the date of this note in accordance with the terms of said contract and in a good, substantial and workmanlike manner.” Upon the back the note is indorsed — “Without Recourse

Perfect Construction Co.

by Chas. Greenhauff.”

The plaintiff rested its case and the motion of defendants for an instructed verdict was denied. Defendant George J. Kalas testified that at the time he affixed his name to the note one Reiss, an agent of the Perfect Construction Company, and Mrs. Kalas were present; that he was called to the telephone and Reiss handed Mrs. Kalas a piece of paper which looked very much like the note, and that when he got through answering the telephone he asked her what she had signed; that he said, “You can’t tell what a piece of paper like that amounts to”; that Reiss said that they had to have some way of making sure they collected their money; that he would hold that piece of paper until such time as they accepted the garage, ‘ ‘ and that it was necessary for them to receive a completion slip signed by me first”; that Reiss said he would hold the paper until such time as the defendant signed the completion slips. The witness further said that the men who were building the garage were notified while it was going up that it was not going up right, and that he refused to sign the completion slips; that these were presented to him for signature two or three days before Thanksgiving day; that the contract was in fact signed on November 9th.

The witness further said that John Reiss was the man he was doing business with and that nobody else called on him in connection with the contract or the note; that he never knew Charles Greenhauff in connection with the matter and never had any dealings with him, and that he was never in the office of the Perfect Construction Company. This witness also testified as to the different respects in which the construction of the garage was imperfect and contrary to the specifications of the contract.

The defendant Emma L. Kalas further testified: “Mr. Reiss was there at the time I signed that, and I asked him what it was for, and he said, ‘It doesn’t mean anything; just go ahead and sign it. ’ I did not read it. That was about all that was said from the time my husband left the room to go to the telephone until he came back.” She further testified that she refused to sign the completion slip when it was presented.

The plaintiff then offered evidence tending to show that the Perfect Construction Company was a co-partnership consisting of Morris Krupnick and Charles Greenhauff and that either of the partners had the right to execute and indorse promissory notes in the name of the partnership. Evidence was also introduced tending to show that the Traders Investment Company purchased the note in question on November 27, 1925, and paid cash for it, and that for the same and other items plaintiff gave its check for $829.40.

The defendant renewed its motion for a directed verdict which was denied, and the court then instructed the jury to return a verdict for the plaintiff in the sum of $461.86, upon which verdict when returned the court entered the judgment from which this appeal is taken.

The controlling question in the case is whether the court erred in directing a verdict for the plaintiff. That question must be decided by a construction of certain sections of the Negotiable Instruments Law (see Cahill’s St. ch. 98; Smith-Hurd’s Ill. Rev. St. 1927, ch. 98, p. 1860). Section 55 of the act provides in substance that the title of the person who negotiates an instrument is defective within the meaning of the act when he obtains the instrument or any signature thereto by fraud,, duress, force or fear, or other unlawful means, or for an illegal consideration, “or when he negotiates it in breach of faith, or under such circumstances as amount to a fraud.” Section 58, Cahill’s St. ch. 88, ¶ 78, provides in substance that, in the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were non-negotiable, and section 59, Cahill’s St. ch. 98, ¶ 79, provides that every holder is deemed prima facie to be a holder in due course, but when it is shown that the title of any person who has negotiated the instrument is defective, the burden is on the holder to prove that he, or some person under whom he claims, acquired the title as a holder in due course. The last-mentioned rule does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title. Section 52, Cahill’s St. ch. 98, ¶ 72, defines the holder in due course as—

“A holder in due course is a holder who has taken the instrument under the following conditions:
“1. That the instrument is complete and regular ¡upon its face.
“2. That he became the holder of it before it was overdue, and without notice that it has been previously dishonored, if such was the fact.
“3. That he took it in good faith and for value.
“4. That at the time it was negotiated to him he had. no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”

If the testimony of these defendants was true (and they had a right to have a jury pass upon the question of whether it was or not) a jury could have reasonably found that the note was given to Reiss upon the agreement that it should not be negotiated until the garage had been completed according to the contract, and this being true, the burden of proof was cast upon the plaintiff (under section 59 of the Negotiable Instruments Act, Cahill’s St. ch. 98, ¶ 79) to prove that he was a holder in due course.

The plaintiff upon rebuttal introduced some evidence tending to show that it was a holder in due course, and it showed that it purchased the note in question on the date of its execution and paid cash for it, but how much cash is not disclosed by the evidence. It offered no evidence other than this tending to show good faith on its part. This proof did not exclude the possibility of bad faith, and one purchasing in bad faith would not be a holder in due course. In view of the plain provisions of the statute it is unnecessary to cite authorities. Bell v. McDonald, 308 Ill. 329, however, seems to be conclusive.

For the error of the court in directing a verdict, the judgment is reversed and the cause remanded for another trial.

Reversed and remanded.

O’Cohnor and McSurely, JJ., concur.


text:
    In re Estate of Frank M. Jogminas, Deceased. Frank H. Novak, Administrator, Appellant, v. Amelia Jogminas, Appellee.
    Gen. No. 31,895.
    1. "Equity — when theory of equitable conversion not applied on sale of land by joint tenants under contract to deliver deed. Upon the death of a husband, who held title to land with his wife as joint tenants and not as tenants by entirety, and which persons had sold the land under their joint contract to deliver deeds when the consideration is paid, a probate court, which is a court of law and not a court of equity, will not require that one-half of the unpaid consideration shall be paid to the administrator of the husband’s estate upon the theory of equitable conversion, and therefore the widow, taking legal title to the contracts and land, is entitled to receive the unpaid consideration.
    2. Probate courts — application of legal rules as a court of law. The probate court of Cook county is not a court of equity but is a court of law and will, therefore, apply legal rather than equitable rules.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding.
    Heard in the first division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed December 12, 1927.
    Rehearing denied December 27, 1927.
    Novak & Novak, for appellant.
    E. Marshall Amberg and Charles V. Chesnul, for appellee; Balys F. Mastauskas, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This controversy is between Frank H. Novak, appointed administrator upon the petition of creditors of the deceased, and Amelia Jogminas, the widow. There is no controversy as to the facts, which are stipulated.

The administrator filed his petition in the probate court setting up that the deceased in his lifetime purchased several tracts of real estate, taking the title to the same in the name of himself and his wife Amelia as joint tenants and not as tenants in common, and that at the time of his decease, September 18,1924, deceased and his wife owned these several pieces of real estate as joint tenants; that the money used for the purchase of this real estate belonged to the deceased, but that these several tracts were sold by deceased and his wife under contracts for deeds. The several tracts of land and the joint agreement of the deceased and his wife to convey the same were severally set up, as well as facts tending to show that as to all these tracts the purchase price was paid only in part, the agreements providing that other payments should be made monthly; that these contracts were in the possession of the widow Amelia Jogminas at the time of her husband’s death, and that she has refused to turn the same over to the administrator or to account for collections made thereon, claiming that all the moneys due belong to her and that the estate has no interest therein. The petition averred that one-half of the moneys due or to become due was the property of the estate of the deceased and the petition prayed an order might be entered so finding.

The widow answered, admitting that she acquired the several pieces of real estate jointly, denying that the purchase price was supplied solely by her deceased husband, and averring that after his death the real estate became her sole property and that the administrator had no interest either in the real estate or in the money due under the contracts.

The probate court found and entered an order as the petition prayed and respondent appealed to the circuit court where, by agreement of the parties, a jury was waived and the cause submitted to the court upon a stipulation of facts, from which it appears that these real estate contracts were executed and delivered by the deceased and his wife before the death of the husband; that the purchasers of the several pieces of real estate, upon execution of the contract, went into possession of the same and made all the payments provided for in the contract to the deceased up to the time of his demise and thereafter to Warren W. Smith, a real estate agent acting for the widow Amelia Jogminas; further that “prior to the date of the execution of said real estate contract, the title to said real estate-was held by Frank M. Jogminas and Amelia Jogminas, his wife, as joint tenants and not as tenants in common.”

The court found that the purchase money evidenced by said real estate contracts due and payable after the death of said Frank M. Jogminas passed to and belong to said Amelia Jogminas, and decreed that Smith, who had been made a party defendant, should pay to the widow the money collected by him on account of said contracts of purchase since the death of Frank M. Jogminas. This appeal followed.

The administrator contends that under the undisputed facts he is entitled to one-half of the unpaid purchase price of these lands upon the theory of equitable conversion, that is, equity will regard as done that which should be done, and applying that fiction convert the real estate into personalty free from the incident of survivorship. A number of cases stating that unquestioned equitable doctrine are cited in the briefs: Rhodes v. Meredith, 260 Ill. 138; Ward v. Williams, 282 Ill. 632, and other cases. The theory is untenable. The doctrine of equitable conversion does not apply to joint tenancies. At any rate the probate court of Cook county is not a court of equity but a court of law and therefore legal rather than equitable rules must be applied. The court of law disregards the fiction which the court of equity applies and, in conformity with legal rules, holds that the contract to convey has no effect on the estate or the title. It follows that as the surviving tenant, the widow, took the legal title to the contracts and land in question, she is entitled to receive the unpaid consideration. Covey v. Dinsmoor, 228 Ill. 438; Chappell v. McKnight, 108 Ill. 570; Gall v. Stoll, 259 Ill. 174; Budelman v. American Ins. Co., 297 Ill. 222.

For the reasons indicated the judgment of the circuit court of Cook county is affirmed.

Affirmed.

O’Connor and McSurely, JJ., concur.


author: Mr. Justice McSurely

text:
    A. H. Woods Theatre, Appellant, v. North American Union, Appellee.
    Gen. No. 31,716.
    1. Landlord and tenant — rules on lease as not covenants liable to be breached by lessor. Rules in a lease, which are expressly made applicable only to the premises demised by the lease and to the lessee thereof, that no person shall disturb the occupants of the building or any adjoining premises by the use of musical instruments and that the lessor reserves the right to make other rules and regulations which shall be binding on all parties, are merely restrictions for the regulation of tenants and are not covenants by the lessor for the benefit of all tenants which are subject to breach by the lessor leasing other rooms in the building to persons using musical instruments to the distraction of the employees of the particular tenant, particularly where the lease reserves to the lessor the right to grant to anyone the privilege to conduct any particular business in the building.
    2. Landlord and tenant — liability of landlord for conduct of tenant. As a general rule a landlord is not responsible for the conduct of tenants acting within their rights in their own premises.
    3. Landlord and tenant — constructive eviction defined. There is a constructive eviction where the premises leased are rendered useless to the tenant or the tenant is deprived, in whole or in part, of the possession and enjoyment as a result of the wilful or wrongful act of the landlord.
    4. Landlord and Tenant — permitting acts by one tenant as constructive eviction of another. There is a constructive eviction where a landlord authorizes one tenant to do upon his premises acts whose natural consequence is to injure another tenant.

      5. Landlord and tenant — permissive playing of musical instruments by one tenant as constructive eviction of another. A landlord by leasing rooms in an office building to music publishers did not constructively evict, by an alleged violation of an implied covenant of quiet enjoyment, another tenant whose employees are distracted in their work by the singing and piano playing on the premises of the music publishers, whose lease barred the use of musical instruments in reception rooms and confined it to rooms facing the streets.
    6. Landlord and tenant — implied covenant to lease only to tenants conducting a quiet business. The plan of management of an office building to make leases to tenants conducting quiet and businesslike offices held not an implied covenant that the plan would be continued so that a lease would not be made to a music publisher, who had singing and piano playing to the distraction of the work of employees of another tenant, it appearing that a large part of the building was occupied by a theater and that the theatrical name of the lessor might suggest that leases of space would likely be made to persons in allied businesses.
    Appeal by plaintiff from the Municipal Court of Chicago; the Hon. Robert E. Gentzel, Judge, presiding.
    Heard in the first division of this court for the first district at the March term, 1927.
    Reversed with a finding of fact.
    Opinion filed December 12, 1927.
    Rehearing denied December 27, 1927.
    Ryan, Condon & Livingston, for appellant; David J. Greenberg and John M. Tuohy, of counsel.
    Brannan, Markman & Maloney, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

A. H. Woods Theatre, a corporation, plaintiff herein, by virtue of a power of attorney in a lease to the North American Union, a corporation, defendant herein, took judgment for rent for May, June and July, 1926, and attorneys’ fees for $1,482.49. On motion supported by affidavits the judgment was vacated and the cause was tried on its merits by the court, resulting in a judgment for the defendant, from which plaintiff appeals.

The lease was for certain rooms on the tenth floor of the building known as the Woods Building, in the city of Chicago, for a term of five years, beginning May 1, 1923, and ending April 30, 1928. Defendant vacated the premises on April 30, 1926, claiming a constructive eviction by reason of an alleged breach of the lease by the lessor in renting rooms in the building to persons who used musical instruments, thus depriving defendant of the quiet enjoyment of the premises leased to it.

The portions of the lease relative to the point in issue are as follows:

Clause 8. “It is mutually agreed that all the rules and regulations printed upon the back of this instrument shall be and are hereby made a part of this lease, and the lessee covenants and agrees that he and his servants and agents will at all times observe, perform and abide by said rules and regulations.”
Clause 19 provides that the lessee shall not use the premises for certain purposes “without the written consent of the lessor, the right being hereby reserved to the lessor to grant to any person, firm or corporation, the exclusive right and privilege to conduct any particular business in said building, and such exclusive right and privilege so granted shall be binding upon the lessee hereunder the same as though specifically incorporated in this lease.”

Upon the back of the instrument are printed 20 rules under the following heading: “Rules and Regulations (Applicable only to the premises demised by the within lease and to the lessee thereof.) ” Thereunder is rule 18 as follows:

“No person shall disturb the occupants of this or any adjoining building or premises by the use of any musical instrument, unseemly noises, whistling, singing or in any other way.”

And rule 20:

“The lessor reserves the right to make such other and further reasonable rules and regulations as in his judgment may from time to time be needful for the safety, care and cleanliness of the premises, and for the preservation of good order therein, and any such other or further rules and regulations shall be binding upon the parties hereto with the same force and effect as if they had been inserted herein at the time of the execution hereof.”

All the leases of space in the building contained similar provisions except the leases to certain musical publishers made subsequent to the lease to defendant. In these leases were provisions permitting the use of pianos and other musical instruments with reservations as to the rooms in which they might be played.

The trial court was of the opinion that rules 18 and 20 aforesaid were covenants on the part of the lessor, made for the benefit of all the tenants, and that the lessor by leasing to persons using musical instruments in their business breached these covenants and defendant was warranted in vacating the premises. We do not concur in this view. Rules 18 and 20 are expressly made applicable only to the premises demised by the lease and to the lessee thereof, while under clause 19 of the lease the right was reserved to the lessor to grant to anyone “the right and privilege to conduct any particular business in said building.”

These rules are simply restrictions for the regulation of the tenants. They are not covenants by the lessor. A landlord would hardly covenant that no tenant should disturb any other tenant by whistling, singing, or in any other way. As a general rule a landlord is not responsible for the conduct of tenants acting within their rights in their own premises. If the lessee desired an express stipulation or covenant on the part of the landlord touching the conduct of other tenants, it should have been incorporated in the lease.

It is argued that, aside from the point on which the trial court decided the case, the evidence shows a constructive eviction by the landlord in permitting singing and playing of pianos in portions of the building which interfered with defendant’s business, thus violating an implied covenant of quiet enjoyment. There is evidence that the tenants in the musical business had pianos and employed demonstrators who taught persons coming to their premises how to sing songs and that such pianos were operated from eleven o’clock in the morning until five-thirty in the evening; that this was heard by employees of the defendant company so that at times they would close the windows in order not to be disturbed; that the sounds of the music reduced the efficiency of the office force, as the minds of the employees were more on the music than on the work of the defendant; that defendant had about 3,000 men, women and children coming to its office each month for the purpose of paying premiums, and that some of them complained that the hallways were crowded and that at times certain of these tenants instructed performers how to dance in the hallway between the elevators and the doors of defendant’s premises.

There was evidence by other tenants contradicting that of the defendant with reference to the noise and disturbance.

There is a constructive eviction where the premises leased are rendered useless to the tenant or the tenant is deprived, in whole or in part, of the possession and enjoyment as a result of the wilful or wrongful act of the landlord. It has also been said that the act of the landlord must be wrongful, evidencing an intention on his part to deprive the tenant of the use of the demised premises. Such intention, however, may be inferred from acts of the landlord justifying or warranting the tenant in leaving the premises. Barrett v. Boddie, 158 Ill. 479; Hartenbauer v. Brumbaugh, 220 Ill. App. 326; Gibbons v. Hoefeld, 299 Ill. 455. Where the landlord authorizes one tenant to do upon the premises acts whose natural consequence is to injure another tenant, there is a constructive eviction. Wade v. Halligan, 16 Ill. 507, 21 Ill. 470; Case v. Minot, 158 Mass. 577, 33 N. E. 700; Kesner v. Consumers Co., 239 Ill. App. 92; Duff v. Hart, 40 N. Y. St. Rep. 676; Curran v. Cushing, 197 Ill. App. 371.

Most of these cases, involve facts showing that the landlord knowingly leased the premises or permitted the same to be used for purposes in themselves unlawful or a nuisance or dangerous to other occupants of the building. Typical of such cases is Wade v. Halligan, 16 Ill. 507, 21 Ill. 470, where tenants were occupying part of the premises as a hotel. Other parts were leased to a saloon, a tin and sheet iron factory and a bake shop, respectively. The court described these new tenants as causing “disorderly, indecent, vulgar and obscene conduct and noises of the drunken, and the noise of manufacturing tin and sheet iron or heat, smoke and danger of fire from a bake oven.” In another case the new tenancy was a laundry; in another, the premises were leased for the storage of moving picture films, creating a dangerous fire hazard.

There is a marked difference between the character of such tenantry and that in the present case. Here, the most serious objection is the tendency of the music to distract defendant’s employees. There is no evidence of any loss of business. Leases to music publishers are customary and usual in office buildings. The disturbance caused thereby is not so far different from the disturbance caused by the usual noises in Chicago buildings. While we might admit the annoyance to defendant caused by them, yet we are not prepared to hold that the sounds made by them, under the permission of the landlord, amount to a constructive eviction. The evidence shows that the restrictions in the leases to the music publishers barred the use of musical instruments in reception rooms and confined it to rooms facing the streets, all with the purpose of lessening the sounds reaching other tenants. There was an absence of any actual intention to dispossess the defendant, and we cannot say that the circumstances were such as to justify any inference that such was his intention. Cases tending to support our conclusion are Stewart v. Lawson, 199 Mich. 497, 165 N. W. 716; 18 Eng. & Am. Encyc. of Law, p. 220; Jones on Landlord and Tenant, p. 360; Tucker v. Du-Puy, 210 Pa. 461; Toy v. Olinger, 173 Wis. 277; Briscoe v. Tabor, 204 Ill. App. 440.

There is no evidence that the landlord was a party to the alleged overcrowding of the halls. It is said that the plan of management of the building prior to the leasing was an implied covenant that the plan would be continued; that prior to the instant leasing the building was leased to tenants conducting quiet and businesslike offices, but that this character of tenantry was changed by renting to people in the musical or theatrical business. Two supporting English cases are cited. In one of them — Gedge v. Bartlett, 17 T. L. R. 43 — a property devoted exclusively to residential purposes was changed in part to leases to the government for public offices. In the other case —Alexander v. Mansions Proprietary, Law Times Reports, Vol. XVI, 431 — a property used exclusively for private residences was leased in part for hotel purposes. Even if we concede the rule, although no supporting cases in the United States are presented, yet the facts in the English cases are different from those before us in that (1) there was a distinct departure from the character of the prior occupancy of the premises, and (2) in neither of them was the question .of constructive eviction involved. It is pertinent in this connection to note that the building in question was not occupied exclusively by offices, but a large part of the same was occupied by a theatre. This fact and the name of the lessor, A.'H. Woods Theatre, a corporation, might well suggest to the defendant that leases of space would likely be made to persons engaged in businesses allied with the theatre business.

There is something said concerning inadequate elevator service, but it is not seriously contended that the facts in this respect amounted to a constructive' eviction. There was considerable evidence showing that the elevator service, while crowded at times, was on the whole adequate.

For the reasons above indicated the judgment of the trial court is reversed and the judgment originally entered is confirmed.

Reversed with a finding of fact.

Matchett, P. J., and O’Connor, J., concur.

Finding of fact: We find as a fact that the lessor, the plaintiff herein, committed no acts with reference to the occupancy of the premises leased to the defendant which amounted to a constructive eviction and justified the defendant in vacating the same.


text:
    Biscoe Hindman v. Charles D. Off et al. Thomas C. Hindman, Intervening Petitioner, Appellant.
    Gen. No. 31,837.
    1. Foreclosure of mortgages — right to rents during period of redemption. As a general rule the owner of the equity of redemption is entitled to the rents and profits of mortgaged premises until the expiration of the time of redemption.
    2. Foreclosure of mortgages — payment of deficiency by receiver out of rents. If a mortgagor pledges the rents as security and the premises fail to bring enough at the foreclosure sale to pay the judgment, the mortgagee may take steps to subject the rents to pay the deficiency, and, if there is a receiver, he will be ordered to pay such deficiency out of the rents.

      3. Foreclosure op mortgages — nature of possession by receiver in collecting rents. The possession of a receiver of mortgaged premises in foreclosure who collects the rents is virtually the possession of the owner of the equity of redemption who is entitled to all the rents, if there is no deficiency from the foreclosure sale.
    4. Foreclosure op mortgages — right to rents in conveyance of premises. during period of redemption. A conveyance of mortgaged premises by the owner of the equity of the redemption, without an assignment of the rents, carries with it the right to the rents accruing during the period of redemption, if there is no deficiency from the foreclosure sale; and the fact that a receiver collects the rents gives the subsequent assignee of rents from the owner of the equity no right to the rents in the period of redemption as against the first grantee of the premises.
    5. Appeal and error — right to assign cross error on appeal from severable order. Where an order distributing between two claimants funds in the hands of a receiver is appealed from by both and both arc required to file appeal bonds, but only one perfects his appeal by filing bond, the other claimant cannot properly assign cross error on the separate appeal of the one filing the bond, the order being a severable one.
    Appeal by defendant from the Circuit Court of Cook county; the Hon. Francis S. Wilson, Judge, presiding.
    Heard in the first division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed December 12, 1927.
    Charles S. Cutting and Arthur L. Dallas, for appellant.
    Frank H. Lennards, for Briscoe Hindman.
    David K. Tone, for E. J. Lennartz.
    E. C. Howard, for Ferdinand J. Niehing, receiver.
   Mr. Justice McSurely

delivered the opinion of the court.

This appeal brings in review the order distributing a fund in the hands of the receiver appointed in a foreclosure proceeding in the above entitled cause. The prior facts of that case were stated in Lennartz v. Boddie, 228 Ill, App. 635. Upon filing of the receiver’s final report the court ordered the receiver to pay Thomas C. Hindman $2,343.46 and to E. J. Lennartz $3,056.60. Hindman appeals from this, claiming that the entire fund of $5,399.06 should be paid to him.

The decree of foreclosure was entered under the Statute of 1917, under which a certificate of indebtedness was issued by the master, and if there was no redemption a sale was had after the expiration of 15 months from the date of the decree. December 12, 1918, this decree was entered; September 16, 1918, a receiver was appointed, who was in possession of the premises and in receipt of the rents until March 25, 1920. April 18, 1919, the defendant Off conveyed the premises to Charles T. Knapp but did not execute any assignment of the rents. October 21, 1919, Knapp conveyed the premises to E. J. Lennartz and at the same time executed to him an assignment of whatever claim or interest Knapp might have in the rents. There was a redemption by John T. Boddie, who on April 29, 1920, received a master’s deed to the premises. December 2, 1921, Off assigned to Thomas C. Hindman all the rents of the premises with power to collect the same.

Thomas C. Hindman claimed all of the funds in the hands of the receiver by virtue of the aforesaid assignment to him. Lennartz claimed that he was entitled to a part of the same by virtue of the deed of Off to Knapp and the deed and assignment from Knapp to Lennartz. The chancellor held with the claim of Lennartz and ordered paid to Hindman the rents accruing to the date of the conveyance of Off to Knapp and the rents accruing after that date to be paid to Lennartz. Hindman has appealed.

We are of the opinion that the chancellor properly divided the fund.

As a general proposition the owner of the equity of redemption is entitled to the rents and profits of the premises until the expiration of the time of redemption. If the mortgagor pledges the rents as security and the premises fail to bring enough at the sale to pay the judgment, the mortgagee may take steps to subject the rents to pay the deficiency and, if there is a receiver, he will be ordered to pay such deficiency out of the rents. In the opinion in Straus v. Bracken, 242 Ill. App. 122, are numerous citations of the decisions in this State on this subject. In Davis v. Dale, 150 Ill. 239, it was said:

“The only purpose of appointing a receiver at the instance of the mortgagee or cestui que trust under or trustee in the trust deed, is to preserve the security of the mortgage or trust deed, and apply the rents, issues and profits, when necessary, in discharge of the indebtedness. And it follows, necessarily, that where the property is bid off at the foreclosure sale for the full amount of the decree, interest and cost, as was here- done, the necessity for continuing the receiver ceases, and he should be discharged and the possession restored to the owner of the equity of redemption. In any event, the possession of the receiver, and his receipt of the rents and profits arising from the property, would be for the benefit of the person entitled to the same, so that the parties acquired no additional right because the fund is in the hands of the receiver. ’ ’
“Rents and profits are the incidents of possession of the equity of redemption and may be collected by the owner thereof until the period of redemption expires.” Williams v. Marmor, 321 Ill. 283.

It seems to be conceded that had Off made no conveyance of his interest in the premises he would be entitled to the rents, issues and profits and, as there was no deficiency, he would be entitled to the entire fund in the hands of the receiver; but it is said that, where the mortgagor conveys the premises without a specific assignment of rents to one not a party to the foreclosure, only the naked right to redeem is thereby conveyed, citing Ellison v. Miller, 137 Ill. App. 208. We cannot accept this case as controlling. There, Ellison owned the equity of redemption by virtue of a deed from the mortgagor made after the bill to foreclose was filed. He was not made a party to that foreclosure, which proceeded to a decree and sale with a master’s deed to Bertha Miller. To correct the omission of Ellison she filed a bill and Ellison answered, claiming the rents and profits accruing after the master’s deed. His claim was against the party in possession under a master’s deed. In the instant case Lennartz is asking for the rents and profits for a period before the master’s deed issued, and as it is conceded that Off would be entitled to these if he had not assigned them, no sound reason appears why Off’s grantee should not be entitled to whatever Off was entitled to receive.

If there had been no receiver and Off had, with his deed to Knapp, given him possession, obviously Knapp and his grantee, Lennartz, would have been entitled to the subsequent accruing rents; but the possession of the receiver with respect to the rents is virtually the possession of the owner of the equity who is entitled to all the rents, if there is no deficiency. Whether the rents are collected by the owner of the equity in possession or by a receiver, a conveyance of the equity carries with it the right to the rents accruing thereafter except as these may be applied on any deficiency judgment.

Appellee Lennartz has assigned cross errors in this court, attacking the report of the receiver, and has argued these at some length. He is not in a.position to be heard upon these. The record shows that Hind-man and Lennartz severally appealed from the order of the chancellor, which appeals were allowed upon the condition that they file their several appeal bonds within 30 days. Hindman perfected his appeal by filing his bond, but Lennartz did not. The order being a severable one, Lennartz cannot properly assign cross errors on the separate appeal of Hindman. Glos v. Woodard, 202 Ill. 480; Alexander Hendry Co. v. Mooar, 242 Ill. App. 516.

The order of distribution was proper and is affirmed.

Affirmed.

Matchett, P. J., and O’Connor, J., concur.


text:
    Dan Ambrosia, Appellee, v. D. Underhill Smith and Clark G. Sauer, trading as Smith-Sauer Motor Company, Appellants.
    Gen. No. 31,858.
    1. Conversion — necessity of showing right to and withholding of possession. In order to maintain an action of trover the plaintiff must prove at least a right to the immediate possession of the property and a wrongful withholding of such possession by the defendant.
    2. Payment — use of forged war saving stamps. . A payment in forged war savings stamps amounts in law to no payment.
    3. Conversion — right of possession by buyer making payment with forged war saving stamps. Where a contract for the sale of an automobile provides that the title and right of possession to the car shall remain in the seller until the purchase price is paid in cash, and the seller repossesses the car upon finding that war savings stamps given in payment are forged, the buyer has no right of possession that is wrongfully withheld by the seller which entitles the buyer to maintain trover for the value of the car, although both parties may have believed the stamps were genuine, and although the buyer accepted a note secured by a chattel mortgage for another part of the purchase price.
    Appeal by defendants from the Superior Court of Cook county; the Hon. John W. Preihs, Judge, presiding.
    Heard in the first division of this court for the first district at the March term, 1927.
    Reversed and judgment here.
    Opinion filed December 12, 1927.
    Rehearing denied December 27, 1927.
    Edward I. Rothbart and Seymour M. Lewis, for appellants; Dwight McKay and Wharton Plummer, of counsel.

      Harry O. and Magnus B. Rosenberg, for appellee; Millard C. Eiseman, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff, in an action in trover to recover the value of a Marmon automobile, upon trial by the court had judgment for $1,500, from which defendants appeal.

The court found the defendants guilty and arrived at the amount of the judgment by finding that the value of the automobile was $3,000, but that defendants were entitled to recoup the sum of $2,000, the amount of certain forged war savings stamps which had been delivered by plaintiff to defendants as part of the purchase price of the automobile. To the balance of $1,000 the court added $500 exemplary damages and entered judgment for $1,500. The plaintiff has assigned cross errors questioning the order allowing defendants to recoup.

We hold that the court should have found the defendants not guilty and entered judgment accordingly.

Defendants are distributors of automobiles in Chicago. In October, 1924, through one of its salesmen, a verbal agreement was made by plaintiff to purchase a Marmon automobile from defendants. Later in the same day the contract of sale, signed by the defendants, was brought to plaintiff’s place of business to secure his signature. He was absent at the time and his father signed the contract. A copy was left with him which was shown to plaintiff the next morning, and plaintiff testified on the trial that his father had signed the order and that he had seen the same. This contract provided, among other things," that the new Marmon car should be taken by plaintiff at $4,190 with some extras at $341, or a total of $4,531, which the purchaser agreed to pay. He was to be allowed for his used car $1,731, leaving $2,800 to be paid in cash. The contract provided that this was to be paid when the seller should notify the purchaser that the car was ready for delivery. Apparently a few days were required for installing the extras. This instrument also contains this provision:

“Title to and right of possession of said property shall remain in you (the seller) until balance of purchase price is fully paid in cash.”

The day after this order was signed plaintiff gave defendants war savings stamps of the apparent value of $1,000 and two days later another $1,000 in such stamps. Plaintiff then signed a note for $800, evidencing the balance of the cash due. This purported to be secured by a chattel mortgage, although there is some argument as to its validity. Upon payment of the second $1,000 in stamps and the signing of the note, plaintiff took possession of the car. The note was payable one week after date and shortly thereafter plaintiff paid defendants $400 and about a week thereafter another $400, and was given the note and chattel mortgage.

Defendants deposited the $2,000 war savings stamps in their bank but shortly afterwards had their suspicions aroused by a newspaper article, in which plaintiff’s name appeared, telling of a number of indictments for putting forged stamps upon the market. Thereupon D. Underhill Smith, one of the defendants, reported his transaction with plaintiff to a Captain Porter, one of the operatives of the United States Secret Service, who on November 13, 1924, went to the bank and took possession of the forged stamps in the amount of $2,000. Defendants never saw these stamps after they were confiscated by the Government and have never received any value for them.

Plaintiff admitted that he was taken to the Federal building and questioned about his connection with these forged stamps. That they were forged is admitted. Plaintiff says that he bought the stamps from one Sam Borino who, plaintiff knew, was a bootlegger. Plaintiff thought Borino had “got them through some transaction,” and he paid at the rate of $3.25 for each $5 stamp. The day following the interview of Smith and Captain Porter, the former had a conference with plaintiff and his father and mother about these forged stamps and requested plaintiff to make good. All the satisfaction Smith received was plaintiff’s statement that he was not in a position to talk. Thereupon defendants repossessed themselves of the Harmon automobile, which they found in a garage. Later plaintiff and his attorney came to defendants’ office and stated that they would arrange to pay the $2,000 and take possession of the car. • This is not denied by plaintiff. Subsequently Smith had other talks with plaintiff, approximately six or eight times, in which he requested plaintiff to make good on the $2,000 payment. The last of these conversations occurred either the latter part of January or the early part of February, 1925. That such conversations took place is not denied. February 21, 1925, defendants notified plaintiff by letter that unless the $2,000 was paid within a few days the car would be sold for the amount due defendants. Plaintiff paid no attention to this and did not pay or offer to pay anything. Sometime in April following defendants sold the car.

It is elementary that to maintain an action in trover the plaintiff must prove at least right to the immediate possession of the property, and the wrongful withholding of such possession by the defendants. In the instant case plaintiff proved neither of these requisites.

Under the United States Law anyone who intentionally passes a forged or counterfeited obligation of the United States is guilty of a crime for which he may be fined or imprisoned. 10 U. S. Statutes, p. 12710. This statute applies to the transfer of forged. war savings stamps. United States v. Sacks, 257 U. S. 37; United States v. Janowitz, 257 U. S. 42. Even though the person paying counterfeit money is ignorant of the fact that it is counterfeit, such payment is a nullity. 30 Cyc. 1215 and cases there cited. Payment by counterfeit money is a nullity and the payee may recover the amount. Hargrave v. Dusenberry, 9 N. C. 326. When property is obtained from a person by purchase with counterfeit money, the right of property does not pass and the owner may recover it back. Phelan v. Dalson, 14 Ark. 79. The payment in forged paper leaves the original debt in full force and effect. First Nat. Bank of Athens v. Buchanan, 87 Tenn. 32. A payment in counterfeit money or forged stamps amounts in law to no payment. Wingate v. Neidlinger, 56 Ind. 520. Plaintiff nowhere in his brief questions that this is the law.

When it developed that the $2,000 paid to defendants was in forged stamps, the transaction stood as if no part of the $2,000 had been paid. The only condition on which defendants delivered the car to plaintiff was upon a genuine payment in real money. This condition failed and the fact that defendants received these stamps under the belief that they were genuine, and that they delivered the car to plaintiff, cannot impart any integrity and validity to the false payment; neither can the subsequent acceptance of a note of $800 with a chattel mortgage add substance to what was in fact a fictitious payment. Plaintiff was given ample time to make good. Even conceding his ignorance of the counterfeit character of the stamps (although his knowledge of their unlawful source casts some doubt as to his innocence), the plaintiff was not relieved of the obligation to make good the cash payment of $2,000; nor did he have the right to possession of the car. The sellers were rightfully entitled to the possession of the car until plaintiff made the cash payment which was a condition to his. right of possession.

For the reasons indicated the judgment is reversed, and as the ease was tried by the court and there can be no recovery on the admitted facts, judgment is entered here that the plaintiff take nothing.

Reversed and judgment here.

Matchett, P. J., and O’Connor, J., concur.