author: Mr. Justice Higbee

text:
    J. C. Tustin, Appellant, v. John Taylor and C. P. Brant, Appellees.
    1. Attachment — sufficiency of record to show freedom from fraud in taking judgment for excessive amount. No fraud affecting the rights of a subsequent judgment creditor is shown by the record of attachment proceedings resulting in a judgment for the attachment plaintiff in a sum exceeding the amount stated in his attachment affidavit, where it appears that such excess was for indebtedness accruing after the filing of the affidavit for attachment, and that the debtor consented to a remittitur of such excess by the attachment plaintiff.
    2. Attachment — excessive judgment as void or voidable. A judgment in attachment proceedings for a sum in excess of the amount stated in the affidavit for attachment, while erroneous and voidable, is not void ab initio, no fraud being shown by the record.
    3. Attachment — remittitur of excess as saving priority of lien of judgment voidable because greater than warranted by affidavit. Where a judgment is erroneously entered in attachment proceedings for a sum in excess of the amount claimed in the affidavit of the attachment plaintiff, a remittitur of such excess entered with the consent of the debtor operates as a reduction thereof, preserving a priority of lien as against an execution issued upon a judgment recovered after the institution of the attachment proceedings.
    Appeal by plaintiff from the Circuit Court of Hamilton county; the Hon. Jranrs C. Kern, Judge, presiding. Heard in this court at the October term, 1925.
    .Affirmed.
    Opinion filed February 17, 1926.
    Shaw & Huffman, for appellant.
    George W. Hogan, Jr. and Harry Anderson, for appellees.
   Mr. Justice Higbee

delivered the opinion of the court.

In the drilling of oil wells in Hamilton county, C. W. Gould became indebted to the Peoples National Bank of McLeansboro, Illinois, and also to J. C. Tustin, appellant, and C. P. Brant, appellee. On June 12, 1924, the Peoples National Bank brought suit in assumpsit against Gould in the circuit court of said county and had a writ of attachment in aid issued. On June 30, appellee also brought his suit in assumpsit with attachment in aid. Both these writs of attachment were levied upon certain oil well casing used by Gould in his drilling. On August 18, 1924, appellant obtained judgment by confession against Gould for $2,332. An execution was issued and levied upon the same property attached by appellee and the Peoples National Bank. On the first day of the September term, 1924, the Peoples National Bank took judgment against Gould in the sum of $882.28 and special execution was ordered to issue against the properties attached. On the same day appellee Brant took judgment against Gould for the sum of $2,619 which according to the judgment of the court was subsequent to the judgment of the Peoples National Bank. Appellee also had special execution issued on his judgment against the property attached. After the entry of appellee’s judgment the record states the ease “stands continued.” Appellee’s declaration and his affidavit for attachment in aid thereof were for the sum of $1,476 each or $1,143 less than the amount for which he took judgment. Under the execution issued on the judgment of the Peoples National Bank the sheriff sold the casing levied upon for the sum of $2,100 and paid that judgment in full. In both the attachment suits service was had upon Gould by publication only. After the adjournment of the September term of court, Gould filed his bill for injunction asking that the sheriff be restrained from paying any of the funds derived from the sale of the casing to appellee, alleging in the bill that appellee’s judgment was erroneous and void because it was in excess of the amount stated in his affidavit for attachment and his declaration. After the adjournment of that term of court, appellant also filed his bill seeking to enjoin the sheriff from distributing any of the funds derived from the sale of the casing, alleging that appellee’s judgment was void because given for a sum in excess of that stated in his declaration and affidavit, and also that it was obtained by fraud against the vested rights of the appellant. Both bills for injunction were addressed to the December term, 1924, of the circuit court of Hamilton county, and preliminary injunctions were issued thereon. On the first day of that term of court, appellee filed a motion for leave to enter a remittitur of his judgment in the sum of $1,143. This motion was granted by the court and appellee’s judgment reduced to $1,476 the amount stated in his declaration and affidavit for attachment. Thereupon Gould dismissed his suit for injunction. After a hearing the court dismissed appellant’s bill for injunction.

Appellant contends that this judgment of appellee against C. W. Gould is void for two reasons: (1) because it was obtained by fraud as against appellant, and (2) because it was entered for an amount in excess of the amount stated in appellee’s declaration and affidavit.

Appellee was the only witness who testified on the hearing. He stated that $1,476, the amount stated in the declaration and affidavit, was the correct amount due him from Gould at the time the affidavit and declaration were filed; that the additional amount of $1,143 which was included in the judgment was performed by him, at the request of Gould, after the filing of his affidavit and declaration and before the taking of the judgment. He testified that he had been operating his drilling machines for Gould, and that he continued to do so after the attachment writs were served at the request of Gould. The remittitur would appear to have been entered with Gould’s consent since immediately upon it being allowed he dismissed his bill for injunction and it is not denied that the sum of $1,476 was justly due appellant. We therefore cannot discover from the record that there was any fraud, upon the part of appellee, which affected the rights of appellant in the obtaining of this judgment against Gould. The question whether the judgment in question was void, because entered for an amount in excess of that stated in the declaration and affidavit of appellee, would seem to depend on the right of appellee to enter the remittitur. We have been referred to no authority holding that under such circumstances as exist here the court has not the right to allow a remittitur, where the question is raised by one not a party to the original judgment. The question is not here raised by Gould, the other party to the judgment, but as above stated he appears, to have consented to the remittitur. It is true the writer of the opinion in Steamboat Clarion v. Moran, 18 Ill. 501, said, in an attachment case where there was no service by summons or publication and the whole proceeding was erroneous in speaking of an attempt to cure the error by a remittitur, “This I presume will not cure it.” It should also be noted that that case was one between the original parties to the suit. The Appellate Court of the First District in Cohen v. Smith, 33 Ill. App. 344, said in speaking of Steamboat Clarion v. Moran, supra, “the practice is now more liberal, but it would seem, as amendments are allowed only in furtherance of justice, that to make a remittitur effectual it should affirmatively appear by the record that the real merits as to the residue, after the remittitur, are with the party who has the judgment.” In this case it does affirmatively appear by the record that the real merits as to the residue of his judgment are with appellee. In all of the other cases cited by appellant on this question the Supreme Court has only held that between parties to the judgment a judgment in attachment entered for a sum in excess of that stated in the affidavit and declaration is erroneous, and in none of the cases is it held that such a judgment is absolutely void.

In Palmer v. Riddle, 180 Ill. 461, where the court was considering the legality of an interest in real estate purchased at a sale under an execution issued on a judgment in attachment for an amount in excess of that stated in the affidavit, it was held that such “judgment although erroneous was not void. ’’ Under this authority we are of the opinion that this judgment while erroneous and voidable was not void ab initio. This view is supported by the doctrine laid down in Buckmaster v. Carlin, 4 Ill. 104, in the following language, “if the jurisdiction attaches, and notice is given, no errors, or irregularities which may have been committed during the progress of the cause can render the judgment void.” This holding is also supported by Miller v. Rowan, 251 Ill. 344, in which the court held, “if the court has jurisdiction it is altogether immaterial when the judgment is collaterally called in question, how grossly irregular or manifestly erroneous its proceedings may have been. The judgment cannot be regarded as a nullity, and cannot, therefore, be collaterally impeached.”

The court manifestly had jurisdiction to enter appellee’s judgment. It was not void and the remittitur entered by consent operated as a reduction thereof. The record does not show any fraud in obtaining the judgment. The decree herein should therefore be affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Mary Lengvin, Appellee, v. John Lengvin, Appellant.
    1. Defaults — discretion of court on motion to reopen default. A motion to reopen a default and for leave to plead is addressed to the sole discretion of the court, and its determination will not he reviewed except in case of an abuse of such discretion.
    2. Defaults — showing essential to reopening of default. A party who seeks to have a default reopened must show both that he acted with due diligence to protect his rights, and that he has a meritorious defense.
    3. Defaults — refusal to reopen where no diligence shown as within discretion of court. Where a party against whom a decree of divorce was entered by default makes no showing of diligence in looking after his case, although he had knowledge of its pendency, the Appellate Court will not hold that the refusal of the court below to reopen the default and permit appellant to plead was an abuse of discretion.
    Appeal by defendant from the Circuit Court of St. Clair county; the Hon. Louis Bebfteeuter, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed February 17, 1926.
    Clyde D. Miller and James O. Miller, for appellant.
    Daniel R. Webb and T. S. Morgan, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Mary Lengvin, appellee, filed her bill for divorce against John Lengvin, appellant, to the April, 1925, term of the circuit court of St. Glair county, charging him with extreme and repeated cruelty. The bill alleged that the appellant was seized of real and personal property to a large amount; that his annual income was sufficient for him to maintain appellee and their two children, and that he was a strong, healthy and able-bodied man. The bill prayed for an injunction restraining appellant from disposing of, selling or incumbering his property, and also for divorce, alimony and custody of the children.

No answer by appellant to this bill appears in the record, but the decree thereafter entered recites that the appellant by his solicitors asked leave to withdraw the answer theretofore filed in his behalf which was allowed and appellant was defaulted. The decree also granted appellee her divorce, the custody of her children and awarded appellee for the support of herself and children, alimony in the sum of $30 per month and $100 for solicitor’s fee. The decree further found that appellee and appellant were jointly seized of their homestead property in Bast St. Louis; that the same was purchased principally from funds derived from the labor of appellee, and awarded said real estate in fee simple to appellee. This decree was entered on the 18th day of May, 1925, being one of the days of the April Term of said court. On June 18,1925, appellant, by his solicitors Miller & Miller, filed his motion to vacate the decree and judgment and set aside the default against him and permit him to file his answer to the bill of complaint. In support of this motion appellant made an affidavit to the effect that he had employed Farthing & Farthing as his solicitors to represent him in the divorce case, and agreed to pay them $50 for their services, and secured the payment of same by executing Ms note and mortgage for $100; that about the first day of May he went to Oklahoma, looMng for employment, and did not return until Sunday, May 17, which was the day before the trial of the divorce case was set for hearing; that he had no knowledge the case was set for trial until May 17, the day of his return, when he was handed a letter dated May 7, from his solicitors, notifying him thereof. Appellant further stated in this affidavit that he had six witnesses by whom he could prove the untruth of the bill of complaint, but on account of limited time after he learned the case was set for hearing he could not secure their attendance; that he did not authorize anyone to withdraw his answer but that it was done by his solicitors upon their own motion because they had not been paid their fee; that they never notified him of such withdrawal until May 19, and that appellant had a complete defense to all of the charges in the bill. To this affidavit was attached a letter under date of May 19,1925, of Farthing & Farthing addressed to appellant, stating in substance that appellant had failed to call at their office and pay the fee as agreed upon, but that in order to protect his rights an answer had been filed and appellant was. requested to come to the office of said attorneys and arrange for the trial. This letter further stated that the attorneys had written appellant on Monday, May 7, notifying him the case was set for the 18th and requesting him to come to their office and arrange for the trial, but that they had heard nothing from him until the mormng the case was set for trial, when a friend of appellant phoned them that he had a letter from appellant in Oklahoma asMng for a continuance ; that they did attempt to get a continuance which was refused, and that they thereupon withdrew the answer which had been theretofore filed.

The motion was also supported by affidavit of one Louis Ogant, stating that appellant boarded with the' affiant during March, April and part of May, 1925; that appellant left Ms home about the first day of May, 1925, and did not return until Sunday the 17th of May on which day he handed to appellant a letter from Farthing & Farthing, attorneys, wMch had been received and kept unopened during appellant’s absence. Appellant also filed an additional affidavit in which he stated that the evidence upon wMch the divorce was granted was false and alleged that he had discovered appellee and one Mike Parkus in a compromising situation and had shot at Parkus; and that appellee and Parkus had been guilty of adultery on numerous, occasions.

The first ground presented in appellant’s argument for a reversal of this decree is that it was erroneous for the court to award appellee monthly alimony and also to decree her the homestead in fee simple. There is no doubt but that the testimony heard on the hearing for divorce justifies the granting of a divorce. Beyond doubt it is legal under proper circumstances in a divorce case to decree a portion of the husband’s real estate to the wifé. “In case of divorce the court granting the divorce may dispose of the homestead estate according to-the equities of the case. ” (Doyle v. Doyle, 268 Ill. 96; Bobowski v. Bobowski, 242 Ill. 524; Cole v. Cole, 142 Ill. 19; Dinet v. Eigenmann, 80 Ill. 274.), The other ground urged for a reversal of tMs decree is that the court erred in not granting appellant’s motion to set aside the default, vacate the decree and permit him to answer. It is true that appellant stated in his affidavits in support of this motion that he had a meritorious defense to the bill. However, motions to set aside a default and for leave' to plead are addressed to the sole discretion of the court, and will not be reviewed except in case of the abuse of such discretion. A showing of such a meritorious defense alone is not sufficient, but the party seeking to have a default set aside must show both that he acted with due diligence to protect his rights, and that he has a meritorious defense. (Nitsche v. City of Chicago, 280 Ill. 268; Barrett v. Queen City Cycle Co., 179 Ill. 68.) It is our opinion that appellant’s affidavit fails to show due diligence upon his part to protect his interests in the divorce case. He left his home and state during the term to which the suit was filed, without notifying his attorneys or leaving them his address as is showm by their letter to bim attached to his affidavit. He also returned home the day before the case was set for hearing and on that day learned that it was set for the following day, but his affidavit does not show any attempt upon his part to get in touch with his attorneys, or to appeal to the court itself, or to get ready for the case or to secure witnesses. In the absence of any showing of diligence upon appellant’s part in looking after his case we cannot hold that the refusal of the court below to set aside the default and permit appellant to plead was an abuse of discretion. The property rights seem to us to have been equitably adjusted. The decree is therefore affirmed.

Affirmed.


text:
    Harry Week and Ethel Fluegel, Appellees, v. Federal Automobile Insurance Association, Appellant.
    1. Insurance — proof of authority of agent to execute oral contract as prerequisite to its validity. An oral contract of insurance entered into between the insured and an agent of the insurer is not binding upon the insurer in the absence of proof that the agent was authorized to enter into such contract.
    2. Insurance — validity of oral contract procured by concealment of prior- loss of subject of insurance. Where, after a policy insuring an automobile against collision damage had been returned to the insurer’s head office undelivered because of nonpayment of premium, the car was damaged in a collision, and on the second day following the insured paid to the insurer’s agent the amount of the premium fixed for such policy, and secured the agent’s receipt therefor, hut without disclosing the fact of the collision, held that even if the transaction amounted to an oral contract of insurance the same was void.
    3. Insurance — sufficiency of evidence to establish valid oral contract in renewal of former policy. Where, after the expiration of an automobile insurance policy containing no provision for renewal, and also after the return to the head office of the insurance company of a subsequently issued policy, undelivered because of nonpayment of the premium, the car was damaged in a collision, and thereafter the owner, concealing the fact of such collision, paid to the insurer’s agent the amount of the premium fixed for the second policy, receiving his receipt therefor as a payment thereon, and thereafter brought suit for such loss, declaring upon the first policy and a claimed oral contract of insurance in renewal thereof, held that the evidence was insufficient to prove a valid oral contract in renewal of the former policy, and hence not sufficient to support a judgment in favor of such owner.
    Appeal by defendant from the City Court of East St. Louis; the Hon. Wtt.t.tatvt F. Borders, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded.
    Opinion filed February 17, 1926.
    Geers & Geers, for appellant.
    Louis Beasley and Edward C. Zulley, for appellees.
   Mr. Justice Higbee

delivered the opinion of the court.

Under date of June 18,1924, the Federal Automobile Insurance Association, appellant, issued its.policy number 59570 to Harry Week and Ethel Fluegel, appellees, insuring one Jewett automobile against damages resulting from collision. The premium was $35.50 which together with the $3.00 membership fee was paid appellant on July 5, 1924, within the period of 30 days’ grace allowed by the policy. The policy by its terms expired December 18, 1924, and contained no provisions for a renewal. In August, 1924, appellees had a rider attached to the policy transferring the coverage from the Jewett to a Buick automobile for a fee of one dollar, which-was not then paid. It appears that after the expiration of the policy, application for a new policy was made and the policy issued by appellant’s head office and sent to its agent in Bast St. Louis- for delivery. It also appears that appellant’s solicitor called upon appellee Ethel Fluegel to deliver the new policy and collect the premium therefor, but that she did not pay the premium and the policy was returned to appellant’s head office.

On February 24, 1925, the car while driven by the husband of Ethel Fluegel met with a collision in St. Louis, Missouri. On February 25, this appellee called appellant’s agent to come to her home and requested of him the delivery of her policy. The agent advised her that the policy had been returned. The following day she again called appellant’s agent to her home and there paid him $35.50 premium for a new policy and the dollar which she owed for the rider changing the insurance. Appellant’s agent gave her the following receipt omitting the formal parts, “Received of Ethel Fluegel thirty-six and 50/100 dollars premium for original policy issued December 18,1924.” Appellant’s agent afterwards sent her his check covering this amount. The declaration however declared upon the policy issued June 18,1924. Appellant’s agent testified that up to the time of receiving this payment and the giving to appellee of the receipt he did not know of the accident which had happened- two' days before, but that after the transaction was completed appellee told him, her husband was sick, and he went into the next room to see him. He1 found the husband in bed with his face injured and there for the first time learned of the accident which had happened two days before. Appellee Ethel Fluegel admitted that she did not tell the agent of the accident on February 25, but stated she did tell him on the following day before she paid him the money. The case was tried before the court without a jury. It is contended by appellees in their argument that even though the original policy of June 18, 1924, which was the one declared upon, was not in force that an oral contract of insurance existed and appellees were protected thereby. Even though this transaction be considered as an oral contract of insurance the law is that before such a contract is legal and binding it must be shown that the agent who enters into the contract has the authority to make the same. In this case the witnesses for appellant testified that the agent had no authority to execute a contract of insurance either written or oral. There is no evidence to contradict this, nor is there any evidence showing any facts which would tend to lead appellees to believe that appellant’s agent had the authority to execute a contract of insurance. The injury to the car had taken place before the oral contract existed, if it be conceded there was an oral contract, and we are of the opinion the evidence shows that appellees did not advise appellant’s agent of the injury to the car, and that he was deceived in that respect. Appellees ’ loss had occurred before the risk attached, if any did attach, and, as we view the evidence, was known only to appellees and they obtained what they term the oral policy without disclosing the fact of the loss to appellant. Under the condition of the proof even though such transaction amounted to an oral contract of insurance the same would be void. (Palmer v. Bull Dog Auto Ins. Ass’n, 294 Ill. 287.)

The receipt given by appellant’s agent shows that the premium was not accepted upon the policy, which was declared upon.- Appellee Ethel Fluegel’s statement that the claimed oral contract was a renewal of the policy sued upon is but a conclusion not supported by the evidence. The policy sued upon contained no provisions for a renewal in this manner.

Appellee Ethel Fluegel testified that in a conversation with appellant’s agent about the 6th or 7th of February, 1925, he told her that she need not worry as she was fully covered by the policy. Appellant’s agent however testified that this conversation referred to a collision which appellee’s son had had sometime in November, 1924, and concerning which she was threatened with litigation. In our opinion there was no valid oral contract between the parties and the evidence does not disclose a renewal of the policy sued upon. There is therefore no evidence to support the judgment, which must be reversed.

Judgment reversed and cause remcmded.


author: Mr. Justice Partlow

text:
    Edna E. Grosch and Viola A. Grosch, Appellees, v. Mendota National Bank, Appellant.
    Gen. No. 7,516.
    1. Fraud and deceit — presumption as to honesty of transactions. Fraud is never presumed when transactions may be fairly reconciled with honesty, and if the weight of the evidence is in favor of the honest motive that conclusion should always be adopted.
    2. Fraudulent conveyances — right of debtor in failing circumstances to prefer one creditor over another. A debtor in failing circumstances has the legal right to prefer one creditor over another, provided the debt preferred is actual and the transaction is not a mere device to secure an advantage to the debtor, or not to hinder, delay or defraud other creditors.
    3. Fraudulent conveyances — requisites to validity of preference given by debtor to creditor member of immediate family. Where an immediate member of the debtor’s family is. preferred as a creditor there must be clear and satisfactory proof of a valid and subsisting debt which could be enforced.
    4. Appeal and error — disposition of judgment where evidence of successful party sufficient to sustain verdict. Even where there is a conflict in the testimony, if the evidence of the successful party when considered by itself is sufficient to sustain the verdict, an appellate tribunal will not set aside the judgment unless it is satisfied that it is manifestly against the weight of the evidence.

      5. Witnesses — right of party ■calling adversary to question credibility. A party who calls his adversary as a witness cannot question the latter’s credibility.
    6. Evidence — competency and weight of testimony by party called by adversary. Where a party calls his adversary as a witness, that part of his testimony in favor of the witness must be considered as Well as that against him, and if there is no> countervailing testimony it must be taken as true.
    7. Chattel- mortgages — validity as affected by relationship between parties. Where a chattel mortgage is given in good faith to secure a valid and subsisting debt, it is valid even though the parties are related and the effect of giving the mortgage is. to prefer such relatives as creditors.
    8. Executions — sufficiency of evidence to- show validity of claim under chattel mortgage on trial of right of property. Evidence on trial of rights of property in chattels of a judgment debtor levied upon pursuant to a judgment and claimed by his daughters as holders of a chattel mortgage, held sufficient to sustain a verdict for the mortgagees as against the contention that the mortgage was fraudulently given and for the purpose of hindering and delaying other creditors1.
    Appeal by defendant from the County Court of La Salle County; the Hon. R. D. Mills, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed November 25, 1925.
    Rehearing denied January 12, 1926.
    John W. Dubbs and Woodward, Hibbs & Pool, for appellant.
    H. A. Brooks, Arthur G. Harris and Butters & Butters, for appellees.
   Mr. Justice Partlow

delivered the opinion of the court.

On September 26,1924, appellant, Mendota National Bank, obtained a judgment in the circuit court of La Salle county against Herman G-rosch, for $5,288.55. An execution was issued, and the sheriff levied on certain personal property alleged to belong to Grosch, consisting of household goods,' farm implements, stock and grain. On December 5, 1924, appellees, Edna E. Grosch and Viola A. Grosch, who are daughters of Herman Grosch, filed notice in the county court of La Salle county that they were the owners of the property levied upon, by virtue of a chattel mortgage executed to them by Herman Grosch on August 8,1924. There was a trial of the rights of property by a jury and a verdict was returned finding that the household goods belonged to Herman Grosch, and that all of the other property levied upon belonged to appellees. Judgment was entered on the verdict and an appeal has been prosecuted to this court.

On the trial the only evidence offered by appellees was the chattel mortgage and the two notes. An objection was sustained to the notes and overruled as to the chattel mortgage. Appellant called Herman Grosch and the two appellees as witnesses and then rested its ease. At the close of the evidence on behalf of appellees, and again at the close of all the evidence, appellant made a motion to direct a verdict in its favor, both of which motions were overruled. As grounds for reversal, appellant contends that appellees did not make a prima facie case; that the chattel mortgage, as a matter of law, was fraudulent, and was given with a fraudulent intent in which appellees participated; that Herman Grosch was insolvent, and appellees knew it; that the chattel mortgage was given for the purpose of hindering and delaying creditors; that the consideration therefor was fictitious; that appellees did not intend to enforce the security; that the verdict was against the weight of the evidence.

The evidence shows that Herman Grosch was the owner of 145 acres of land, located two and one-half miles northwest of Mendota, of the value of $29,000, and that there was a mortgage of $18,000 thereon. This was all the real estate he owned, and, in fact, all the property he owned, except the personal property in this case, and he was indebted to various parties in a sum aggregating about $16,000 over and above the mortgage. He lived on the farm with his family consisting of his wife and three children. Edna E. Grosch was 24 years of age on May 25,1924, and Viola was 21 years of age on June 8,1924. Both were graduates of the Mendota high school, and had lived all their lives with their parents on the farm in question. During the summer of 1924, the indebtedness of the father had been discussed by the family, and appellees were familiar with his financial condition. On August 8,1924, Herman Grosch, his wife and the two appellees, went to Dixon to an attorney’s, office. A mortgage was drawn for $20,000 on the farm in favor of the wife. This mortgage is not in controversy in this case, and no evidence, was- offered concerning it, except that the evidence shows it was executed on that date. A chattel mortgage for $3,400 was at the same time executed to appellees, covering substantially all the personal property of Herman Grosch. It was to run for two years, and was given to secure an alleged indebtedness of $2,-500 to Edna, and $1,100 to Viola, being for money said to have been advanced by them to their father, and for money due them for work and labor under an express contract.

The evidence shows that Edna Grosch had taught school for eight months in 1920 and 1921, and for a like period in 1923 and 1924. She received $100 per month which she deposited in the bank. She testified that of that amount she gave her father money as he needed it, amounting to about $1,600. She drew checks to her own order and delivered the cash to her father. She took no note, but claims she kept a book account. Neither her checks nor the book account was introduced in evidence and no request was made for their production. From the time she became of age until June, 1920, she went to high school. She testified that after she became of age her father agreed to pay her $6 per week for her services at home as long as she was willing to stay; that she performed services at home, both about the house and in the fields; that there was due her close to $1,150 for wages. Her father testified to the same facts, and that there was due her about $900, which $900, together with the $1,600 paid to him during the two years she taught school, made the total of $2,500 for which the note was given.

The evidence shows that Viola A. Grosch taught school .for eight months in 1923 and 1924 and received $80 per month. She testified that of this amount she gave her father, at various times, $480, and her father entered into a contract with her for her services at $6 per week, and that she worked under the contract for about two years and four months, and there was due her $620 for those services. The testimony of Herman Grosch is in substantial accord with the testimony of the two appellees.

The evidence also shows that after the chattel mortgage was executed Herman Grosch and appellees went to the recorder’s office where it was filed for record. After it was executed Herman Grosch continued in possession of the property. He used part of the com to feed the stock. He disposed of four or five loads of oats, trading some of it for other articles used on the farm and sold the remainder for cash which he retained. He sold a shorthorn bull and used the money to buy gasoline, and other things needed on the farm. He sold six or seven spring lambs and applied some of the money on his indebtedness. These sales were made with the consent of appellees.

Appellant contends that Edna Grosch testified that the chattel mortgage and notes were given to hinder and delay the creditors of Herman Grosch. The record shows that Edna Grosch testified that “we made the period two years for the reason that our father might pull out financially in that time, and we knew, also, in the meantime, that my father’s other creditors could not bother him. That was not the purpose, however, of giving the mortgage.” Appellees contend that when they learned the financial condition of their father in the summer of 1924, they asked for security for the amounts which he owed them, and that the chattel mortgage and notes were given to secure those amounts.

The question is whether the evidence sustains the contentions of appellant. In McKennan v. Mickelberry, 242 Ill. 117, on page 134, the court said: “It has been repeatedly laid down by this and other courts that fraud will not be presumed, but must be proved, like any other fact, by clear and convincing evidence. (Union Nat. Bank v. State Nat. Bank, 168 Ill. 256, and authorities cited.) Something more than mere suspicion is required to prove allegations of fraud. The evidence must be clear and cogent, and must leave the mind well satisfied that the allegations are true. (Shinn v. Shinn, 91 Ill. 477.) If the motives and designs of the parties charged with fraud or collusion may be traced to an honest and legitimate source equally as to a corrupt one, the former explanation ought to be preferred. (McConnell v. Wilcox, 1 Scam. 344.) Fraud is never presumed when transactions may be fairly reconciled with honesty, and if the weight of the evidence is. in favor of am honest motive that conclusion should always be adopted.” To the same effect are Carter v. Carter, 283 Ill. 324; Mosbarger v. Brown, 313 Ill. 238; Edwards v. Story, 105 Ill. App. 433.

A debtor in failing circumstances has the legal right to prefer one creditor over another, provided the debt preferred is actual and the transaction is not a mere device to- secure an advantage to the debtor, or not to hinder, delay or defraud other creditors. Farwell v. Nilsson, 133 Ill. 45; Morriss v. Blackman, 179 Ill. 103; Merchants’ Nat. Bank v. Lyon, 185 Ill. 343; Murry Nelson & Co. v. Leiter, 190 Ill. 414; Rice-Stix Dry Goods Co. v. Albrecht & Co., 273 Ill. 450; Bartel v. Zimmerman, 293 Ill. 154.

Where an immediate member of the family is preferred as a creditor there must be clear and satisfactory proof of a valid and subsisting debt which could be enforced. Schuberth v. Schillo, 177 Ill. 346. In Luthy & Co. v. Paradis, 299 Ill. 380, on page 385, the court said: “Where a husband makes a voluntary conveyance to his wife and afterwards becomes insolvent, the burden of proof is on him to disprove the implication of fraud as to creditors at the time of the making of the conveyance. (Dillman v. Nadelhoffer, 162 Ill. 625.) A husband may, however, deal with his wife or relatives in business matters and protect them by conveyances in satisfaction of existing indebtedness if done in good faith. Relationship is merely a circumstance that may excite suspicion, but will not, of itself, amount to the proof of fraud or show the absence of a bona fide debt. * * * There was no presumption of fraud which required the defendants to introduce proof to overcome it.”

Even where there is a conflict in the testimony and the evidence of the successful party when considered by itself is sufficient to sustain the verdict, an appellate tribunal will not set aside the judgment unless it is satisfied that it is manifestly against the weight of the evidence. Shevalier v. Seager, 121 Ill. 564; Chicago & J. Elec. Ry. Co. v. Barrows, 128 Ill. App. 11.

There is no conflict in the evidence in this case. It consists of the evidence of Herman Grosch and the two appellees. Appellant called no- witnesses except the parties in interest. A party who calls his adversary as a witness cannot question the latter’s credibility. That part of his testimony in favor of the witness must be considered as well as that against him and if there is no contravailing testimony it must be taken as true. Sawyer v. Moyer, 109 Ill. 461; Bowman v. Ash, 143 Ill. 649; American Hoist & Derrick Co. v. Hall, 208 Ill. 597; Luthy & Co. v. Paradis, 299 Ill. 380.

If the chattel mortgage was given in good faith to secure a valid and subsisting debt, then it was valid even though- the parties were related and the effect of the giving of the mortgage was to prefer appellees as creditors. If the jury believed the uncontradicted evidence of G-rosch and appellees, they were justified in returning the verdict which they did return. The uncoutradicted evidence is sufficient to- sustain the verdict, and even though there may be some suspicious circumstances which might cast a doubt as to the purpose of the transaction, yet under the evidence we do not think this court is justified in setting aside the verdict. The jury was in a better position than we are to determine the weight of the evidence of these witnesses.

Complaint is made of various instructions given on behalf of the appellees. No errors have been assigned, however, on any of these instructions* and they are not open to review in this court.

We find no reversible error and the judgment will be affirmed.

Judgment affirmed.


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    Graver Bartlett Nash Company, Appellant, v. Peter Krans and George Nelson, Appellees.
    Gen. No. 7,565.
    1. Sales — validity of conditional sales contract as against purchaser from conditional vendee without notice. In view of section 20 of the Uniform Sales Act, Cahill’s St. eh. 121a, 1f 23, no title can be conveyed by the buyer of goods under a conditional sales contract, even though the buyer has possession of the goods and the purchaser from the buyer has no notice of the reservation of title by the conditional vendor.
    2. Conflict of laws — enforceaWlity of conditional sales contract valid under laws of State where executed as well as under laws of this State. A conditional sale contract which was valid and enforceable as against a judgment creditor of the vendee under the laws of the State where it was executed, as well as under the laws of this State, will be enforced in the courts of this State.
    3. Replevin — right of conditional vendor to possession as against constable and custodian under levy on execution under judgment for creditor of conditional vendee. In view of section 20 of the Uniform Sales Act, Cahill’s St. ch. 121a, 123, the conditional vendor of an automobile in Indiana was entitled to a judgment awarding him possession of the vehicle in his action of replevin against the Illinois constable and custodian thereof holding the same by virtue of an execution levied pursuant to an Illinois judgment against the conditional vendee, although at the time of making such levy neither the constable nor the custodian had knowledge of the interest of the conditional vendor therein, the vendee being in default on his contract.
    Appeal by plaintiff from the Circuit Court of Will County; the Hon. Frederick A. Hill, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded.
    Opinion filed December 28, 1925.
    Donovan, Bray & Gray, for appellant.
    John C. Cowing and Glen L. Cowing, for appellees.
   Mr. Justice Partlow

delivered the opinion of the court.

Appellant, Graver Bartlett Nash Company, began an action of replevin in the circuit court of Will county against appellees, Peter Krans, a constable, and George Nelson, who was custodian, to recover possession of an automobile. A jury was waived and the cause was heard by the court upon a written stipulation of the facts. There was a finding and judgment that appellees were entitled to the possession of the automobile, and appellant was ordered to pay $303.55, within twenty days, or make return of the property.

The substantial facts of the stipulation are that on June 28, 1924, appellant delivered to James A. Orr, of Hammond, Indiana, a Nash coupé automobile. Orr executed to appellant at Hammond, Indiana, on that date, a conditional sales agreement, by the terms of which Orr promised to pay appellant $1,444.45 for the automobile, of which there was paid $500, and the. remainder was to be in instalments beginning on July 28, 1924, and on the corresponding day of each succeeding month until the total amount should be fully paid. The agreement further provided that the seller might take possession of the automobile whenever found, and with or without process of law, if the buyer removed or attempted to remove it from Indiana, or upon the failure of the buyer to perform the covenants of the contract, or make prompt payment of all money as it became due, and upon such retaking all rights of the buyer were to cease. On September 20, 1924, Orr, without the consent or knowledge of appellant, drove the automobile from Indiana into Illinois, and while driving along a public highway in Will county, Illinois, Orr’s car collided with a car owned by James McCarty, and as a result, on September 29,1924, McCarty obtained a judgment by default before a justice of the peace in Will county against Orr for $300 and costs. The justice had jurisdiction and the judgment was in full force and effect. On the same day an execution was issued, placed in the hands of Krans, a constable, and levied on the automobile, and the automobile was placed in the hands of Nelson as custodian. At the time the levy was made neither Nelson nor Krans had any knowledge that the automobile was claimed by appellant or by any person other than Orr. Orr had made no payment to appellant under the contract since August 30,1924, he was in default, and there was due appellant $812.99 on the contract. On October 16,1924, a replevin suit was filed in the circuit court of Will county by appellant, and under the writ of replevin the automobile was delivered by Krans and Nelson to a representative of appellant, and was by him returned to appellant at Hammond, Indiana. It was agreed that the conditional sales agreement, though not recorded, was properly executed, was in all respects in conformity to the laws of Indiana, and that such an agreement under the laws of Indiana took precedence over and constitutes a right prior to all persons claiming under the conditional vendee, including innocent purchasers and judgment creditors. Upon the trial of the replevin suit the judgment was as above recited.

The sole question argued is whether the property rights shall be determined by the laws of Illinois, or by the laws of Indiana. It is the contention of appellant that the contract was valid under the laws of Indiana; that under the well-established custom of comity between the States, the validity of a contract which violates, no positive or criminal law, and is not contrary to the public policy of the State of the forum, is governed by the laws of the lex loci contractus; that this rule has been repeatedly recognized by the courts of Illinois in giving effect to. contracts which if valid where made would be invalid if executed in Illinois; that the courts of Illinois have uniformly applied this rule to rights acquired under properly executed foreign chattel mortgages, and have held them to. be prior to the rights acquired against the vendor after the mortgaged chattel had been brought into, this State; that the courts' of Illinois have enforced rates of interest under contracts made in foreign States which rates were usurious in Illinois; that there is, in substance, no difference between the legal effect of a chattel mortgage and the legal effect of a conditional sale.

In a long line of cases it has been held in Illinois that if a person sells to another a chattel on condition that the price shall be paid within a certain time, and the seller retains the title in the meantime, and the seller delivers the possession of the chattel to the buyer so as to clothe him with an apparent ownership, a bona fide purchaser, or execution creditor of the buyer, is entitled to protection and to a prior right to the property against the claim of the original owner. Heilbrunn v. Ellsworth, 190 Ill. App. 388; Gilbert v. National Cash Register Co., 176 Ill. 288; Van Duzor v. Allen, 90 Ill. 499; Michigan Cent. R. Co. v. Phillips, 60 Ill. 190; Murch v. Wright, 46 Ill. 487; Ketchum v. Watson, 24 Ill. 591; Brundage v. Camp, 21 Ill. 330.

It has also heen held that secret liens of this kind are fraudulent and contrary to the policy of the laws of Hlinois and should not be enforced. Rhodes v. Missouri Savings & Loan Co., 173 Ill. 621.

In Judy v. Evans, 109 Ill. App. 154, the facts were quite similar to the facts in the case at bar. A team of horses was sold by Judy in Indians; under a conditional sales contract. The title was to remain in Judy but the possession was delivered to the purchaser. The purchaser took the team to Rossville, Illinois, and it was levied upon under a writ of attachment issued in Vermilion county, Hlinois. Judy began an action of replevin to get possession of the property, and it was held in the trial court that the property was held under the laws of Hlinois, and that the Indiana contract would not be enforced in Hlinois. On page 156, the Appellate Court said: “When the owner of personal property puts another in possession, and clothes such person with the. indicia of ownership, he loses his right thereto as against subsequent purchasers and creditors of that person. Where one or two innocent persons must suffer for the fraud of a third, the loss must fall on him by whose act the fraud became possible,” citing cases. “ * * * In this state, a foreign contract, valid where made, will ordinarily be enforced as a matter of comity, yet where the contract is, fraudulently made or contrary to our laws, as are the ones here in question, it should not be enforced to the prejudice of our citizens who may have demands against the vendee.”

In Merz v. Stewart, 211 Ill. App. 508, it was held that the doctrine of comity has no application where an Illinois manufacturer sells a motorcycle to a resident of Indiana, and the latter sells the property under a conditional sales contract to another person, who removes the property from Indiana and sells it to a resident of Illinois who does not know of the conditional sales contract, even though the conditional sales contract which was unrecorded was good in Indiana between the seller and the purchaser and third persons.

.All of the cases above cited were decided before the Uniform Sales Act was passed. Prior to that time conditional sales were illegal in Illinois and the courts refused to enforce such contracts even when made in a State where they were valid and binding.

On July 1, 1915, the Uniform Sales Act went into effect. Its provisions were in conflict with some of the decisions in this State. One of the respects in which this statute changed the law was with reference to conditional sales contracts. Section 20 provides that: “Where there is a contract to sell specific goods, or where goods are subsequently appropriated to the contract, the seller may, by terms of the contract or appropriation, reserve the right of possession or property in goods until certain conditions have been fulfilled. The right of possession or property may be thus reserved notwithstanding the delivery of the goods to the buyer or to a carrier or other bailee for the purpose of transmission to the buyer.” [Cahill’s Ill. St. ch. 121a, [[ 23.] In Sherer-Gillett Co. v. Long, 318 Ill. 432, the opinion was rendered after this case at bar was decided by the trial court, and it was there held that this section changed the rule in Illinois as to conditional sales- contracts; that the statute recognized the validity of conditional sales with reservations of title in the seller; that when there is no- basis for an estoppel against the seller, that no title can be conveyed by the buyer of goods under a conditional sales contract, even though the buyer has possession of the goods and the purchaser from the buyer had no notice of the reservation.

Before the passage of this statute the refusal of the courts of this State to, enforce foreign conditional sales contracts even under the doctrine of comity was based upon the grounds that such contracts were fraudulent under the laws of this State, or contrary to our laws and should not be enforced to the prejudice of our citizens who might have demands against the vendee. The Uniform Sales Act entirely removes this reason. The contract in question not only was valid under the laws of Indiana where it was made but it was also valid under the laws of Illinois where appellant sought to enforce it. If it was valid in both States there was no reason why it should not be enforced by the courts of this State. The title to the property replevied was in appellant and it was entitled to the possession thereof, even as against the rights of a judgment creditor of the vendee under a valid execution.

The court was in error in rendering judgment in favor of appellees and the, judgment will be reversed and the cause remanded.

Reversed and remanded.


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    Lanah Barker, Appellee, v. City of Rockford, Appellant.
    Gen. No. 7,514.
    1. Municipal corporations — liability for injury due to slipperiness of sidewalk because of ice or snow. Mere slipperiness of a sidewalk occasioned by ice and snow is not such a defect as, will render a muncipality liable for damages occasioned thereby.
    2. Municipal corporations — existence of icy ridges and hillocks as prerequisite to liability for injury by icy sidewalk. In order that a city shall become liable for injuries due to the icy condition of its sidewalks it is necessary that the ice be in the form of hillocks and ridges forming an obstruction thereon.

      3. Municipal corporations — source of icy condition of sidewalk as affecting liability for injury thereby. It is immaterial, for the purpose of determining the liability of a city for damages due to the icy condition of its sidewalks, whether such condition is due to natural or artificial means.
    4. Municipal corporations^ — knowledge of conditions earning icy sidewalk as affecting liability for injury thereby. No liability can be predicated against a city for injuries due to a fall upon an icy sidewalk where the ice was perfectly smooth and not in ridges or hummocks, and had formed there but a few hours prior to the injury, although the source of the ice was water running from the downspouts of a building, and although the city had notice of the existence of such downspouts and that they had previously caused ice to form at this place.
    Appeal by defendant from the Circuit Court of Winnebago County; the Hon. Earl D. Reynolds, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed.
    Opinion filed January 6, 1926.
    George T. Liddell, City Attorney, and David D. Madden, Corporation Counsel, for appellant.
    A. Philip Smith and Roy F. Hall, for appellee.
   Mr. Justice Partlow

delivered the opinion of the court.

Appellee, Lanah Barker, began suit in the circuit court of Winnebago county against the City of Bock-ford, J. Frank Deuel and Qeorge W. O’Shay for personal injuries. There was a trial by jury, a verdict in favor of Deuel and O’Shay, and a verdict and judgment against appellant, the 'City of Bockford, for $1,200. An appeal has been prosecuted by appellant, the City of Bockford, and a writ of error was sued out of this court by appellee, Lanah Barker, against Deuel and O’Shay. The appeal and writ of error were consolidated but subsequently the writ of error was dismissed upon motion of Deuel and O’Shay so the case is to be heard only upon the appeal, and no errors urged under the writ of error will be considered.

The evidence shows that Deuel and 0 ’Shay for many years were the owners of a store building at the northeast comer of West State and North Winnebago streets, in the City of Rockford. The building was 60 feet long and 20 feet wide. Attached to the building were two downspouts, one 5 inches in diameter and the other 2 inches in diameter, which discharged all of the water from the roof to the sidewalk west of the building and across the sidewalk to' the gutter. From March 15 to 18, 1923, 14 inches of snow fell. The temperature during the most of this time was above freezing, but on the night of March 18, the temperature was below freezing. The snow upon the roof melted and the water came through the downspouts, flowed across the sidewalk and froze forming a thin smooth surface from the bottom of the downspouts to the gutter. On the morning of March 18, a light snow fell upon this ice. Between nine and ten o’clock in the morning, appellee and her husband walked down North Winnebago street to the place in question. Appellee stepped upon the snow not knowing there was ice under it, slipped, fell, and broke the small bones in her wrist and some of the other bones were injured. She was seriously and, it is claimed, permanently injured. Prior to the accident she was the proprietor of a beauty parlor, and was actively employed in its management. After the accident it was impossible for her to pursue that work with the injured arm. Evidence by various witnesses was that these downspouts had been in this condition for several years and that ice had formed upon the sidewalk in prior years and several witnesses testified to having slipped on the ice. One witness, who- occupied a building next door, testified that she had complained to Deuel with reference to the condition and asked him to fix it. Under the sidewalk at the rear of the building was a boiler room 13 feet north and south, and 19 feet east and west, in which there was a large boiler. It was contended that on account of the heat from the boiler the snow usually melted as fast as it fell. It is contended by appellee that the fires in the boiler were banked in the evening and were not started in the morning in time to melt the snow and ice until late in the morning.

The sole question, which is one of law, is whether, under the facts, there was a right of action against the city. Cases are cited by appellee from other jurisdictions holding that under similar facts there is a cause of action against a municipality. It is, not necessary, however, to go to other jurisdictions to, ascertain the law, for the reason that the question has been before the courts of this State on many occasions and the decisions are not in conflict.

It has been held that mere slipperiness of a sidewalk occasioned by ice and snow is not. such a defect as will make the municipality liable for damages occasioned thereby. City of Chicago v. McGiven, 78 Ill. 348; King v. Swanson, 216 Ill. App. 294; City of East Dubuque v. Brugger, 118 Ill. App. 421; City of Chicago v. McDonald, 111 Ill. App. 436; City of Aurora v. Parks, 21 Ill. App. 459; Village of Gibson v. Johnson, 4 Ill. App. 288. In order for a city to' be liable for the icy condition of its sidewalk it is necessary that the ice must be in the form of an obstruction to the sidewalk and must be in hillocks or ridges, and the city is not liable if the ice is perfectly smooth. City of Quincy v. Barker, 81 Ill. 300; Eppley v. City of Chicago, 221 Ill. App. 111; Dracass v. City of Chicago, 193 Ill. App. 75; Powers v. City of Chicago, 20 Ill. App. 178; City of Macomb v. Smithers, 6 Ill. App. 470. Appellee contends that this rule of law only applies where the snow and ice has been cast upon the sidewalk by the elements in their natural course and does not apply where the ice gets onto the sidewalk as the result of human agency. This contention is not sustained by the authorities, and it has, been held that it is immaterial whether the slipperiness is caused by natural or artificial means. Miklaszewski v. City of Chicago, 194 Ill. App. 614; Metzger v. City of Chicago, 103 Ill. App. 605; Mareck v. City of Chicago, 89 Ill. App. 358; 28 Cyc. 1374.

The evidence shows that the ice on this sidewalk was perfectly smooth. This fact is testified to by both appellee and her husband. The husband testified that it was only about an inch thick and some; places not that thick. It is not contended that it was an obstruction or that it was in hillocks or ridges. In fact, the declaration is not drawn upon that theory, but is drawn upon the theory that Deuel and O’Shay wrongfully caused the water to be cast upon the sidewalk, that it froze and formed a slippery place, and that the city was liable because it had notice of these downspouts because of their long’ existence. This ice had formed during the night before the accident and had been in existence only a few hours prior to the injury. There could be no notice to the appellant that this particular ice was in existence, but if there was notice to appellant at all it was by reason of the fact that similar conditions had existed at prior times; Under the authorities cited there was no cause of action against appellant.

The court was in error in rendering judgment against the city and it will be reversed.

Judgment reversed.


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    John W. Maltby, Appellee, v. The Empire Auto Insurance Association, Appellant.
    Gen. No. 7,584.
    1. Pleading — effect of failure to prove imrmaterial allegation of declaration. Judgment for the plaintiff in an action upon an automobile insurance policy will not be reversed on the ground that the proof failed to establish the allegation of the declaration that after the loss the insurer agreed to pay, such allegation not being material to plaintiff’s cause of action.
    2. Insurance — authority of agent to waive giving of notice of loss. Notice of loss required to be given to an insurer may be waived by an agent of the company, if he has authority to solicit insurance, receive and forward applications, receive and deliver policies, and collect the premiums.
    3. Insurance — waiver of notice of loss to agent specified in policy. If an automobile insurance policy requires notice of loss to be given to its attorney in fact, and the insured, after loss, gives notice to another agent of the insurer, and no objection is raised, there is a sufficient compliance with the policy where, in an action thereon, only the general issue is filed to a declaration alleging due notice.
    4. Insurance — special plea as prerequisite to- attach upon sufficiency of notice of loss. Where in an action upon a policy of insurance which requires notice of loss to be given to the insurer’s attorney in fact the declaration alleges due notice, the objection that notice was given to an agent other than the one so designated can be raised only if specially pleaded, the general issue being insufficient.
    5. Insurance — necessity for special plea ta raise issue as to noncompliance with provision of policy for. arbitration. In an action upon a policy of automobile insurance the objection that there was no compliance with the policy provisions for arbitration cannot be raised unless specially pleaded, the general issue being insufficient.
    6. Appeal and error — failure to assert noncompliance with policy provision for arbitration on trial as precluding contention on appeal. On appeal from a judgment for plaintiff in an action upon an automobile insurance policy a contention that there was no proof of compliance with a requirement of the policy for arbitration is without merit where it is apparent that the point was not raised at the trial.
    7. Insurance — unconditional delivery of policy as prima facie evidence of prepayment of premium. Unconditional delivery of a policy of insurance is not only a waiver of the prepayment of the premium thereon, but is prima facie proof that the premium was in fact paid.
    8. Insurance — payment of premium to agent as payment to insurer. Where the agent of the insurer to whom the insured paid the premium on his policy had the right to solicit insurance and had an open account with the insurer upon which he made remittances from time to time, the payment to the agent was payment to the insurer.

      9. Insurance — sufficiency of evidence to show cancellation of policy before occurrence of loss. Where a policy of insurance provided that it might be canceled on five days’ notice by mailing a letter of cancellation to the insured and a return of one-third of the premium, cancellation of a policy prior to a loss thereunder was not shown by proof of the mailing of a letter of cancellation, in the absence of proof that the letter was accompanied by a return premium.
    Appeal by defendant from the Circuit Court of Kane County; the Hon. W. J. Pulton, Judge, presiding. Heard in' this court at the October term, 1925.
    Affirmed.
    Opinion filed January 19, 1926.
    George R. Warner, for appellant; D. J. Peffers, of counsel.
    Sears & Solfisburg, for appellee.
   Mr. Justice Partlow

delivered the opinion of the court.

Appellee, John W. Maltby, began suit in the circuit court of Kane county against appellant, The Empire Auto Insurance Association, on a policy of insurance on an automobile which was. stolen. The general issue was filed, a jury was waived, there was a trial by the court, no propositions of law were submitted, there was a finding and judgment against appellant for $340 and an appeal has been prosecuted to this court.

The evidence shows that appellant was. a reciprocal association doing business at Aurora, Illinois, and W. 0. Guyton was its attorney in fact. F. L. Wright was an automobile dealer at Yorkville, Illinois. He was the president of the Yorkville Motor Company, and had an agency at Minooka, Illinois, known as the Minooka Auto Company. On October 13, 1923, appellee purchased a Ford touring car from* the Minooka Auto Company. The purchase price was. $428, and appellee turned in an old car at $177. The balance of the purchase price was secured by a chattel mortgage to the Minooka Auto Company which was later assigned to the Yorkville Motor Company. Appellee paid the Minooka Auto Company $25 for insurance premium covering the policy in question. He also paid two instalments on the purchase price of $50 each. On Sunday afternoon, March 29, 1924, the Ford touring car was stolen from the streets of Joliet, Illinois. Appellee notified the police of Joliet, and Clarence W. Clark, who. was in charge of the Minooka Auto Company as the agent of Wright. Clark went to Joliet, had a talk with appellee, and with the police, but they were unable to get any trace of the car. Clark testified he sent appellant a telegram notifying it of the loss and later sent a letter to the same effect. Wright testified he got notice from Clark that the car was stolen; that he sent Clark to Joliet to get the details and he sent these details to the head office of appellant in Aurora.

The evidence shows that during the summer of 1923, W. 0. Guyton, the attorney in fact of appellant, had a talk with Wright with reference to writing insurance upon cars which Wright was selling and financing. It was agreed that Wright should handle the insurance upon these cars and that he should receive compensation therefor. Guyton left thirty-five or forty applications with Wright and afterwards gave him fifty-five or sixty more applications. Wright filled out applications when cars were purchased, forwarded them to appellant who issued the policies and sent them to Wright. In each policy there was a mortgage clause making the loss, if any, payable to the Yorkville Motor Company as mortgagee. The first payment included the insurance and carrying charge, and on the policy in question $25 was paid by appellee to Wright to cover the insurance and carrying charges. Wright had an account with appellant of the policies; which he had issued, and from time to time made remittances on the same. On December 5, 1923, appellant wrote Wright asking if he could forward the money on the policy in question and some other policy, and stated that as the end of the year approached it was desirable to have all business settled to January 1. Appellant claims that it did not receive any reply from Wright on this notice and that on December 20, it canceled the policy in question, and the same was not in force at the time the automobile was stolen.

Appellee testified he signed an application in blank for the insurance, and the blanks were later filled by the salesman; that he did not know whether appellant ever received the premium, but that he paid $25 for the insurance; that he never notified appellant of this loss, but notified Clark, and Clark said he would notify appellant; that he never had the policy in his possession, but it was held by the Yorkville, Motor Company because they had a mortgage on the car.

The declaration set out the policy in hcec verba, alleged that it was in force when the automobile was' stolen; that the automobile was- stolen, and at the time it was stolen it was worth $340; that immediately after the loss appellee notified appellant of the loss and appellant agreed to pay. It is insisted by appellant that there is no evidence which supports the allegation that, after the loss, appellant agreed, to- pay, and for this reason appellee did not prove all of the allegations of the declaration, and the finding should have been for appellant. In support of this contention Bradley v. Illinois Automobile Ins. Co., 227 Ill. App. 572, is cited. The case cited do.es not sustain this contention. In that case the policyholder was sued for an accident, and a judgment was rendered against him. The insurance company refused to pay the judgment and suit was brought on the policy to compel such payment. There was no evidence that the company had any notice of the accident, and the insured attempted to bind the company by the verdict in the original case. In order to avoid the lack of notice, the insured alleged in his declaration that the company had taken charge of the original suit and defended the same. The company filed the general issue and a special plea, alleging that the insured when sued in the original suit had refused to co-operate in the defense. The insured did not prove that the company had taken charge of the original suit and defended it. It was held that this was a material allegation of the declaration; that it was incumbent upon the insured to prove this allegation, and as he did not prove it there could be no recovery. In the case at bar it was not necessary for appellee, before he could recover, to prove that, after the loss, appellant had agreed to pay. This allegation was not material and there could be a recovery without such proof. All appellee was required to prove was the issuance of the policy, the loss of the automobile, the notification of appellant, and the amount of the loss. With these facts in evidence appellee was entitled to a judgment unless the evidence of appellant showed the contrary.

The policy provided that appellee should give the attorney in fact immediate written notice of any loss sustained. It is insisted that there can be no recovery for the reason that appellee did not notify Guyton, the attorney in fact, and that this was a condition precedent to his right to recover.

As before stated, as soon as the car was stolen, appellee notified Clark, who was the agent of Wright. Wright had taken the application, had sent it to appellant, he had received the policy, and had been paid a commission by appellant for securing the insurance. Clark immediately went to Joliet, made an investigation of the loss, sent a telegram to appellant notifying it of the loss, and subsequently sent a letter to the same effect. He reported his find to Wright and Wright notified appellant. It is true that there was no notice directly to Guyton, who was the person named in the policy to whom the notice of loss was to. be made. Notice required by an insurance policy may be waived by an agent of the company, if he has authority to solicit insurance, receive and forward applications, receive and deliver policies, and collect the premiums. Davis v. Home Ins. Co., 233 Ill. App. 566. Wright had authority to do all of these things., therefore he had the right to waive the notice which was to be given to the attorney in fact and the evidence shows that he did waive it. Where a policy requires notice to be given to an attorney in fact, and the insured, after loss, gives notice to another agent' of the company, it is a sufficient compliance with the policy where no objection is raised, and only the general issue is filed. Boston Store v. Hartford Accident & Indemnity Co., 227 Ill. App. 192; Ford v. Union Automobile Indemnity Ass’n, 229 Ill. App. 264. If the defendant relies upon lack of notice it must be specially pleaded. Briggs v. Bankers Accident Ins. Co., 214 Ill. App. 181. The declaration alleged notice to appellant and only the general issue was filed. Under the pleadings and the evidence it cannot be successfully insisted that failure to notify the attorney in fact defeated the cause of action.

It is also contended that the policy provided for arbitration, and there was no proof of a compliance with this provision. It is apparent that this point was not raised in the trial court, and that it could only" have been raised by a special plea.

It is claimed that the premium on this policy was never paid, and for that reason, before the automobile was stolen, the policy was canceled by appellant. The secretary of appellant, on the trial, produced the copy of a letter which he testified he wrote appellee on December 20,1920, canceling the policy. The policy provided that it might be canceled after five days ’ notice, by mailing a letter of cancellation to the insured, and by the return of one-third of the premium. There is no evidence that the letter canceling the policy was accompanied by any return premium. Under these facts there was no cancellation. If Wright was the agent of appellant and had the right to solicit insurance, and appellee paid him the full amount of the premium, and Wright had an open account with the appellant for policies issued upon which he made remittances from time to time, then the payment of the premium to Wright was a payment to appellant. The unconditional delivery of a policy is not only a waiver of the prepayment of the premium, but it is prima facie proof that such premium was in fact paid. Briggs v. Bankers Accident Ins. Co., 214 Ill. App. 181.

We find no reversible error and the judgment will be affirmed.

Judgment affirmed.


author: Mb., Presiding" Justice Jones

text:
    In the Matter of the Estate of Amarilla M. Dow, Deceased, Appellee, v. Grant McArthur, Appellant.
    Gen. No. 7,468.
    1. Statutes — construction of statutes in pari materia. It is a fundamental rule of statutory construction that not only should the intent of the lawmakers he deduced from a view of the whole statute, and of its every material part, but statutes in pari materia should be construed together.
    2. Statutes — application of omitted provisions where statutes in pari materia construed together. Where two acts in pari materia are construed together and one of them contains provisions omitted from the other, the omitted provision will be applied in a proceeding under the act not containing such provisions, where not inconsistent with the purposes of the act.
    3. Estates of decedents — construction of statutes respecting power of administrator to collect to vote decedent’s stock. Section 45 of the Corporation Act (Cahill’s St. oh. 32, f 45) and section 11 of the Administration Act (Cahill’s St. ch. 3, f11) as amended in 1919, being acts in pari materia, must be construed together in order to determine the power of an administrator to collect to vote stock held by his decedent.
    4. Estates of decedents — powers of administrator to collect. The powers of an administrator to collect are limited strictly to those expressly prescribed by statute; he does not have the general powers of an administrator.
    5. Estates of decedents — prerequisites to power of administrator to collect to vote corporate stock held by decedent. An administrator to collect has no> authority to vote corporate stock of his decedent without first obtaining the direction and order of the court.
    6. Estates of decedents — effect of ex parte order prohibiting administrator to> collect from voting decedent’s stock. Since an ex parte order of the probate court prohibiting an administrator to collect from voting corporate stock held by his decedent in no way precluding such representative from applying for and upon proper showing obtaining an order permitting him to vote such stock, he was not aggrieved by the issuance of the prohibitory order, and it was not error for the circuit court to dismiss the administrator’s appeal therefrom.
    7. Appeal ani> error — restriction of right of appeal to persons aggrieved by judgment appealed from. The right to relief by appeal exists only in favor of a party whose rights have been prejudiced by the judgment appealed from. ”
    Appeal by defendant from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed March 3, 1926.
    Justin K. Orvis and C. C. Bombaugh, for appellant.
    Culver, Andrews & King and Paul MacGuffin, for appellee; Oscar S. Seaver, of counsel.
   Mb., Presiding" Justice Jones

delivered the opinion of the court.

An order was entered in the probate court of Lake county admitting to probate the will of Amarilla M. Dow, and from that order an appeal was prosecuted to the circuit court. A bill was also filed in the circuit court to contest the will. Pending the hearing of those two cases in the circuit court, Grant McArthur,, appellant herein, was appointed administrator to collect. Among the property of the decedent were certain shares of stock in tha W. H. Dow Manufacturing Company, and the annual stockholders ’ meeting of that corporation was to be held on October 6,1924, at 4 o’clock p. m. Ruth Irene Wright, who was named as executrix in the will of Amarilla M. Dow, on the day of the stockholders’ meeting, filed her bill for an injunction to restrain appellant from voting this stock at the annual meeting of the stockholders of the corporation. The presiding judge of that court on a preliminary hearing suggested that counsel take the matter up in the probate court. Thereupon, about 3 o’clock p. m. of that day, she filed her petition in the probate court for* an order directing appellant not to vote such stock at said meeting. An order upon an ex parte hearing was entered, granting the prayer of the petition and ordering a citation to issue forbidding appellant to vote said stock until directed and authorized so to do by the court. The citation was served upon appellant by the sheriff prior to the stockholders’ meeting at 4 o’clock. Appellant perfected his appeal to the circuit court from the order of the probate court, and afterward the petitioner entered her motion in the circuit court to dismiss the appeal. The motion was allowed and the appeal dismissed. From the order dismissing the appeal appellant has prosecuted his further appeal to this court.

The only question involved in this case is as to whether the circuit court properly dismissed the appeal. Appellant claims that as administrator to collect he had an absolute right to vote the stock of decedent under the provisions of section 45 of the Corporation Act [Cahill’s St. ch. 32, [[45], and that the probate court had no power to restrain him from doing so. He also claims that under section 309 of chapter 37 of the Revised Statutes [Cahill’s St. ch. 37, [[341], entitled “Courts,” the circuit court erred in dismissing his appeal and should have heard the canse de novo. Section 45 of the Corporation Act provides: “Each executor, administrator, conservator, guardian, receiver, or trustee may vote the stock in his hands at all meetings of the corporation.” Section 11 of the Administration Act [Cahill’s St. ch. 3, [f 11] after providing for the appointment of an administrator to collect in certain cases there enumerated, also provides: “Such administrator to collect shall haVe such powers and authority as is vested by law in an executor or administrator, provided the same be exercised under and subject to the direction and order of the court, first obtained.” The provision of section 11 above quoted was added by amendment at the 1919 session of the General Assembly, and the Corporation Act, including-section 45, was passed at the same session; both acts were approved the same day. It is a fundamental rule of statutory construction that not only should the intent of the lawmakers be deduced from a view of the whole statute, and of its every material part, but statutes in pari materia should be construed together. The rule applies with peculiar force to statutes that are contemporaneous. (People v. Wallace, 291 Ill. 465, p. 470.) Where two acts in pari materia are construed together and one of them contains provisions omitted from the other, the omitted provisions will be applied in a proceeding under the act not containing such provisions, where not inconsistent with the purposes of the act. (People v. Cowen, 283 Ill. 308, 316.) It is apparent that the provisions of the two acts must be construed together. Previous to the amendment of section 11 of the Administration Act in 1919, the powers of an administrator to collect were limited to collecting and preserving the estate, making an inventory thereof and delivering it to the proper executor or administrator. It has been repeatedly held in this State that the powers of an administrator to collect are limited strictly to those expressly prescribed by statute; he does not have the general powers of an administrator. (Wener & Co. v. Freilich, 268 Ill. 58; Freilich v. Wener, 188 Ill. App. 577; In re Wincox’s Estate, 186 Ill. 445; People v. Salomon, 184 Ill. 490; Slatts v. Bernstein, 209 Ill. App. 545.) The amendment enlarged these powers only in cases where the administrator to collect acts under the direction and order of the court first obtained, and an administrator to collect has no authority to vote corporate stock of his decedent without first obtaining the direction and order of the court. It nowhere appears in the record that appellant as administrator to collect had ever applied to the probate court for its direction and order to vote the stock of decedent. He had no authority to vote it without being directed to do so by the court, and it was useless to file the petition in the probate court for an order forbidding the administrator to collect from doing what the statute prohibited him from doing. It also appears from the record that it was an ex parte proceeding without any notice whatever to appellant. If the proceedings were of any legal significance, the appellant certainly was entitled to notice and an opportunity to be heard. The order appealed from was not a final order. It in no way precluded appellant from applying for and obtaining an order to vote the stock in question upon a proper showing, and he was in no way aggrieved by its entry. It simply left the parties where they were before it was entered. It is the established rule that the right to relief by appeal exists only in favor of a party whose rights have been prejudiced by the judgment appealed from. (McCollister v. Greene County Nat. Bank, 171 Ill. 610, and cases there cited.) Under these circumstances, as well as the things appearing upon the face of the record, there was nothing for the circuit court to hear de novo. The appeal was therefore properly dismissed and the judgment of the circuit court will be affirmed.

Judgment affirmed,