author: Mr. Justice Friend

text:
    William E. Foulkes, Claimant as Heir to the Estate of Edward W. Morrison, Deceased, Plaintiff in Error, v. Chicago Title and Trust Company, Executor of the Estate of Edward W. Morrison, Deceased, Defendant in Error.
    Gen. No. 37,909.

      Opinion filed December 30, 1935.
    Frank H. Repetto, of Chicago, for plaintiff in error; Robert D. Melick, of Chicago, of counsel.
    Matthias Concannon and Jacobson, Merrick, Nierman & Silbert, all of Chicago, for defendant in error.
   Mr. Justice Friend

delivered the opinion of the court.

Edward W. Morrison died testate December 14,1929, and by the provisions of his last will and testament, admitted to probate June 13, 1931, disposed of his entire estate. In a proceeding originated in the probate court under the Ascertainment of Heirship Act of 1909 (secs. 1 to 3, pars. 146 to 148, chap. 3, Cahill’s Ill. Rev. Stats. 1933, p. 67) William E. Foulkes (hereinafter referred to as claimant), claimed to he a son of Edward W. Morrison, the decedent, and his only heir at law and next of kin; Margaret Anna Burnstein Beers Brown (hereinafter called Margaret Brown.), and Alice Schenker claimed to be the adopted daughters of decedent; and 16 collateral heirs by Mood of decedent claimed to be the nearest of kin and his heirs at law. The probate court, by its order of June 16, 1931, found the 16 collateral heirs to be the nearest of kin and heirs at law of decedent; that claimant was not a son; and that the adoption decrees under which Margaret Brown and Alice Schenker claimed were void. From this order of the probate court two appeals were perfected, one by claimant and the other by Margaret Brown and Alice Schenker. These appeals were consolidated for hearing in the circuit court, the cause heard by the court and a final decree entered October 14, 1932, sustaining in all particulars the findings and order of the probate court. October 19, 1934, a writ of error was sued out to reverse the decree of the circuit court. Since neither Margaret Brown nor Alice Schenker were named as parties to the writ of error, we are not called upon to pass upon the validity of the adoption proceedings, and therefore the sole question for determination is whether claimant was the son of Edward W. Morrison.

In support of his claim Foulkes filed an affidavit stating that he was born in Chicago, April 17, 1859; that his mother, named Mary Morrison, was married to Edward W. Morrison; that her maiden name was Mary Frange; that she resided in the household of James M. Morrison, father of decedent, up to the date of claimant’s birth; that prior thereto there had been a marriage ceremony, common to that time, between his parents. The affidavit further states that after claimant’s birth James M. Morrison, decedent’s father, objected to the marriage of his son, and thereafter claimant’s mother was compelled to leave the household of James M. Morrison and a separation followed between claimant’s mother and father; that when claimant was about seven years of age his mother died and he was reared in the family of one Edward Foulkes, and was thereafter called William Foulkes and has since borne that name; that Edward Foulkes was engaged in the occupation of canal boat captain, and as a boy claimant came in contact with one Mr. Dunnivan, also a captain on a canal boat, who well knew the matters recited in claimant’s affidavit; and that upon the information thus received from Dunnivan, claimant makes said affidavit and believes it to be true. It is further stated that since deriving the foregoing information from Capt. Dunnivan, claimant has learned of corroborating facts and circumstances in relation thereto, consisting of statements made by Edward W. Morrison, decedent, during his lifetime in conversation with relatives and acquaintances, to the effect that he had been married and as the result of said marriage a son was born unto him and Mary Frange, and that Edward W. Morrison, decedent, often sought the whereabouts of claimant, his son; that when claimant was about 20 years of age he met Capt. Dunnivan, whom he had known for some time, and in the course of conversation Dunnivan said to claimant, “Do you know that your father is Edward W. Morrison,” and “On my return trip I am going to take you to him”,- that Capt. Dunnivan left on a voyage and died en route. The claimant concludes his affidavit by stating that “from matters of recollection and corroborative information, he is the son of Edward W. Morrison deceased, and makes this affidavit in support thereof. ’ ’

The essential facts, so far as they are necessary for a consideration of the issues involved, disclose that Edward W. Morrison was born in 1836 and died Decernber 14, 1929, at the age of 93 years. He was the son of James M. Morrison by his first wife. James M. Morrison died in 1868, leaving surviving* his second wife, who afterward became Mary A. King, Edward W. Morrison, and another son, Volney Adams Morrison, who died June 14,1869, after the death of his father. James M. Morrison left a large and valuable estate, and substantially all the property owned by Edward W. Morrison in his lifetime came to him through the will of his father. This will was admitted to probate in Cook county prior to the great Chicago fire, wherein the will and the records thereof were destroyed. The will was re-established and restored in a burnt record proceeding filed in 1873. In a suit instituted by the conservator of Edward W. Morrison in 1921 it was decreed that by reason of the prior death of Volney Adams Morrison without ever having had a child or children, Edward W. Morrison had obtained a fee simple title to the parcels of property in question, subject to the dower of Mary A. King* in a portion thereof, and that the city of Chicago, in trust for the use of the schools, had no interest therein.

There is no record of a marriage or divorce between Edward W. Morrison and Mary Frange. The only evidence on that subject consists of declarations made by members of the Frange family and declarations alleged to have been made by Morrison to several other witnesses. George A. Kramer, who had a saloon and restaurant at 35th street and Cottage Grove avenue in Chicago for many years, testified that he knew Capt. Morrison, as Edward "W. Morrison was called, for more than 25 years prior to his death, and that he had several conversations with him in the saloon wherein Morrison stated that he had a son whom he had not seen but longed to see and did not know where he was, and that his wife was dead; that he was shown a picture by claimant’s daughters, and when he looked at it saidy “That is Capt. Morrison,” whereupon one of the daughters replied, “No that is my father,” and that he, Kramer, then said, “He looks just like Capt. Morrison.” When claimant was asked to arise in the court room, the witness identified him as being the man of whom he had been shown a picture by claimant’s daughters which he had identified as that of Capt. Morrison, and testified that the picture, which was admittedly one of William E. Foulkes, was the one he recognized as Capt. Morrison.

Frank D. Spalding was another witness called on behalf of plaintiff. He testified that he knew Kramer, and had been in his place of business; that not long after the Spanish American war he met Edward W. Morrison and talked to him many times, and particularly in 1901, when the witness bemoaned the fact that he had lost his son in the Spanish American war, whereupon Morrison remarked, “You’ll get over that, losing your son. I lost a son myself, and I had to get over it.”

David J. Haynes testified in behalf of claimant that he was a police officer and had met Edward W. Morrison in Kramer’s saloon about 1907 or 1908; that the last conversation he had with him took place in Douglas square on 35th street at the lake, near Kramer’s saloon, in which Morrison told him that his wife was dead, and that when he went to the place where she had died they told him the boy was dead also; that Morrison further said, ‘ ‘ The wife’s name was Mary and that her maiden name was Pronga, Mary Pronga,” and that the boy’s name was Willie. The witness recalled that Morrison stated that he had missed the boy, and that “Mary was the prettiest woman he ever saw, and the only woman he ever loved,” and related how they were married and lived on the west side a while and that his folks had separated them, and ‘ ‘ after they left Chicago they went down somewhere on the canal, . . . and it seems that they went down there when I was away”; that when he returned he tried to find them, but was informed that his wife and son were dead.

Mrs. Clara Bahr, another witness produced on behalf of claimant, testified that she was 65 years old and was born in Chicago, where she lived until she was 15 years of age. She then went to Akron, Ohio, where she has lived ever since; that her father, William Frange, and William Foulkes’ mother, Mary Frange, were brother and sister. She stated that when she was between 9 and 15 years of age she heard her father say to her mother, “Sister Mary has been deserted by her husband and left a little boy”; that she remembered hearing her mother say that Mr. Morrison came to their grocery store in Chicago and that he' said to her mother, “Willie’s father came to look for him”,; that after she moved to Alerón, Ohio, when she was between 15 and 16 years of age her mother told her that Willie Foulkes was Mary’s boy, and that his father’s name was Morrison; that Mary, the sister, lived with them in Chicago, and that her mother had told her, “Mary came to their house and told them her husband sent her there to stay until he came after her”; that she remembered Willie when he was nine or ten years old, that no one ever called him Morrison in her presence but always referred to him as Willie Foulkes.

Mrs. Lily Bowen testified on behalf of claimant that she lived in Oak Park and was 57 years of age; that her mother’s maiden name was Wilhelmina Frange and that Mrsi Bahr was her first cousin; that Mrs. Bahr’s father and the witness’ mother were brother and sister, and she, the witness, lived with her parents until her marriage on January 30, 1900; that prior thereto she heard conversations between her mother and father concerning matters of descent and relationship; that in August, 1893, in their home in Alliance, Ohio, her mother said she never recognized any marriage to Capt. Foulkes because' she knew of no divorce from Morrison, that it was her duty to bring the son and the father together; that her mother knew Willie -Foulkes very well and she heard her mother say that she wanted to bring Edward W. Morrison and Willie Foulkes together a great many times and wanted to come to Chicago and find them. At the time of these conversations witness was about 12 to 14 years of age. Mrs. Bowen testified that she never told Mr. Foulkes that her mother wanted him to come back to his father, Edward Morrison, but left that to her mother; that she, the witness, usually visited Willie Foulkes with her husband; that she never saw her aunt, Mary Frange, who was supposed to have a husband by the name of Edward Foulkes, but that the witness’ mother never recognized him as her husband. She testified further that her mother said that Mary Frange was never divorced from Edward Morrison, to her knowledge, and that she could not be legally married to Edward Foulkes. Witness further testified that when her Aunt Mary came to this country she was just a girl and went to work as a maid in the Morrison home on Harrison street in Chicago, and that her mother had often told her that Willie was born on Harrison' street in the Morrison home, but that she had never talked to Mr. Foulkes nor to anybody else about the Morrison home; that all the circumstances about which the witness testified happened before she was born, and substantially all her testimony relates to statements made to her by her mother.

There is evidence in the record tending to show that claimant was born April 17,1859. He was employed as a mail carrier at Chicago in the general post office. The records of that office, photo static copies of which were offered in evidence, show that on November 20, 1900, claimant stated that he was born on April 17,1859, and resided at 3440 Emerald avenue in Chicago at the time of his appointment; that on August 14,1907, in reply to certain questions contained in a questionnaire for the post office department he stated that he had been in' the service in Chicago for 20 years, was born here April 17, 1859, and was 48 years of age; that on July 1,1916, he filled out a questionnaire as an employee of the post office at Chicago, stated that he was born in April, 1859, and that the total length of his service in the post office department was 28 years and four months; that the records of the Veterans Administration Bureau of Pensions at Washington, D. C., show an application for an annuity pension which was signed and sworn to by claimant March 22, 1924, recited, among other things, that claimant was born April 17, 1859, age 65 years, and was a city letter carrier in the classified service.

In addition to this documentary evidence there was the testimony of Clara Bahr, claimant’s cousin, who stated that she left Chicago when she was 15 years of age, about the year 1881, and that claimant was then about 22; also that claimant was about six or seven years older than she was, which would fix his birth approximately in the year 1859. There is also the baptismal record of the German Evangelical Lutheran Church of Chicago, and the testimony of Edwin Hoelter, pastor of that church, that a baptismal ceremony was performed by the then pastor of that church June 30, 1859, with respect to one Ernest, born April 17, 1859, whose parents were Jacob Meek and Mary, née Prange, the sponsor being William Prange, who was represented by the mother of the child.

The date of claimant’s birth becomes of considerable importance in the light of testimony offered by the executor after claimant had thus established the date of his birth as April, 1859, showing that Edward W. Morrison was absent from the United States from November 2,1857, to December 24,1859. This evidence consisted of photostatic transcripts of the record in the office of the Deputy Collector of Customs at the Port of New Bedford in the District of Massachusetts, containing a list of sailors and the members of the crew of the ship Levi Starbuck, which left the port of New Bedford on November 2, 1857; photo static copies of the crew list, showing as a member of the crew the name “E. W. Morrison,” reciting place of birth as Chicago, a'ge 22, height 5 feet, 10k inches, complexion light, hair light, with a certificate of the master that the entire crew list is correct and certified; also in the same certificate the return of the ship and the surrendering of the crew list on September 17,1861. The list is certified to by the collector of the port, and given under his hand and seal as of November 2, 1857. The document is entitled, “List of Persons That Accompanied the Crew of the Ship Levi Starbuck of New Bedford, bound for Pacific Ocean.” There was also offered in evidence a certificate by Arthur E. Duffy, deputy collector of customs, certifying that the name of E. W. Morrison, birthplace Chicago, age 22, height 5 feet, 10 inches, complexion light, hair light, appears in the crew list of the ship Levi Starbuck that cleared at this point (New Bedford) November 2, 1857, for a whaling voyage in the Pacific ocean, and that the vessel returned September 17, 1861. The evidence contains a certificate attached to the crew list of the ship Levi Starbuck, showing that Edward W. Morrison was discharged at Honolulu, Hawaiian Islands, December 24, 1859, before Abner Pratt, American consul at that place. To it was attached a copy of the record of the consul of the United States of America for Honolulu, Hawaiian Islands. An attached consul’s report recites, among other things, that Edward W. Morrison was discharged at his request from the Levi Starbuck in accordance with the law of the United States at Honolulu, December 24, 1859. There was further offered in evidence an envelope, with the superscription, “Mr. Edward W. Morrison, Honolulu, Sandwich Islands, in care of the Levi Starbuck, ’ ’ and with a post mark thereon of “Chicago, July, 1859,” and a letter which was contained therein. Both envelope and letter were found among Edward W. Morrison’s papers after his death, and were from his father, James M. Morrison. The letter begins as follows: “My dear son: We received your letters dated April 28th, . . . ” It is a rather lengthy and affectionate document, and contains the following: “I have prayed for you every day since you have gone, that the Lord would protect you on the mig'hty deep and in your business on the great waters . . . My son, E. W. Morrison, I have written to Cleveland as you wanted me to and I shall write to Captain Jarnegan to let you come home if he will, you may tell him that I will pay him for your time if he will discharge you, if not, don’t leave the ship unless you can get away for good.”

In addition to the foregoing testimony pertaining* to the date of claimant’s birth, there is abundant evidence offered by the executor, and received by the court, tending to rebut the statements and declarations of claimant’s witnesses relative to the alleged marriage of Edward W. Morrison and Mary Frange. One of these was Lydia A. Morrison, 76 years of age, whose husband, Ephraim, was a first cousin of Edward W. Morrison. She testified at length concerning the relationship of the 16 collateral relatives who were found by the court to he the heirs at law and nearest of kin of decedent, Edward W. Morrison. She stated that she knew James M. Morrison and his wife, and had seen them often. The witness resided in Chicago for more than 50 years. She testified that Edward W. Morrison’s first wife’s name was Emily Van Dusen, from whom he was divorced, and that she died more than 50 years ago. He was then married to Balbina Morrison. Witness was 18 years of age at the time, which would • fix the second marriage at about 1874. She stated that Edward W. Morrison did not have a child or children that she had ever heard of.

George W. Bice, another witness, testified that he was 76 years of age, lived in the neighborhood of the Morrison home in 1868, and knew Edward W. Morrison in his lifetime. His mother frequently took him to the home to see Edward and his wife, Balbina. Mrs. Morrison and his mother were very intimate friends, and the witness continued to visit Morrison up to the time of his death. He stated that he had never heard Morrison speak of a child or mention anything about a son or that he ever heard of a son in that family or the mention of the name Frange. He testified to a conversation with Morrison before his death, wherein Morrison asked, ‘ ‘ ‘ George, how many children have you got Í ’ I said, ‘I have got three big ones, Ed- — two boys and a girl’; that Morrison said, ‘Well one girl is worth forty boys.’ Jokingly, I said, ‘Yes, that is right, that is true.’ I said, ‘I believe you never had any.’ I knew he had not. ’ ’ Morrison said he never had a boy or a girl.

Another witness, Sarah Bice Smith, testified that she was a daughter of Mrs. William Morrison, the widow of Ephraim Morrison, a first cousin of Edward W. Morrison, and lived in Chicago 52 years; that she had known Edward W. Morrison all his lifetime; that her father was always proud that he had five children, and “joshed” Edward W. Morrison because he had none, and that she never heard any talk in the family that Edward ever had a child or children. She stated further that she had heard conversations among members of the Morrison family on many occasions to the effect that Edward had been married twice, but she never heard that his wife was named Mary or Marie, or that her maiden name was Frange or Pronga.

Florence M. Spofford, another witness, stated that she was born in 1875; that her mother’s name was Hannah Morrison Spofford. Witness is one of the 16 found to be heirs, and knew Edward W. Morrison, lived next door to him and used to spend a great deal of time in Ms home. She lived on Harrison street, just east of Halsted street, and her home was just west of his. Her mother was a first cousin of Edward W. Morrison. She said that, although she was frequently in touch with Edward W. Morrison, she never heard of a Mary Frange; that Edward W. Morrison was married to a relative of some other member of the family, but she could not remember her maiden name; that his wife left very suddenly and was later remarried, and that Edward W. Morrison then married Bina Morrison. The witness said that she never heard of Edward W. Morrison having a son or of Mary Frange being associated with Edward W. Morrison or in the Morrison family.

There is the testimony of Glendora Morrison Connoran, who stated that she was 56 years of age, and a daughter of Mrs. William Morrison, widow of Ephraim Morrison, a first cousin of Edward W. Morrison. She was born on Monroe street, east of Halsted street, and lived in Chicago for 21 years until she was married. She remembered Edward W. Morrison, stated that he was married twice, first to Emily Van Dusen and second to Balbina. She never heard any talk among the members of the Morrison family regarding any child of Edward W. Morrison, and stated that it was common talk in the Morrison family that Edward could have no children. The witness never heard of any person claiming to be the son of Edward W. Morrison, or of any wife of his by the name, of Mary Frange, and stated that the matter was never mentioned in her presence in the household of James M. Morrison.

The record contains voluminous testimony by neighbors of the Morrison family, men and women, who lived in the immediate neighborhood and knew Edward W. Morrison and his parents, visited them frequently, who testified as to his two marriages, one to Emily Van Dusen, from whom he was divorced, and his later marriage to Balbina. Mrs. Elizabeth Breitung, who was 72 years old and knew Edward W. Morrison from the time that she was 13 years of age; Arthur J. Kendall, who was in the real estate business and managed part of the Morrison property, and knew Edward W. Morrison quite intimately; John Lussen, 85 years of age, who had a cigar store for about 40 years a block and a half from the Morrison home; Alfred G-. Lanio, 74 years of age, who lived on the Morrison property about 20 years and visited the Morrison home hundreds of times; Mr. James Rosenthal, who examined Edward W. Morrison in his suit brought by the Central Trust Company of Illinois to set aside deeds to James R. Ward from Edward W. Morrison; Arista B. Williams, a lawyer, who was connected with certain Morrison litigation; Alfred W. Bays, an attorney at law, who drew a will for Edward W. Morrison; Lydia A. Morrison, wife of Ephraim Morrison; Mrs. Edith May Mitchell, who lived next door to James R. Ward, Morrison’s attorney, when Morrison lived there and had many talks with him — all testified that Morrison had stated on many occasions, and sometimes under oath, that he was never the father of a child and that they had never heard of his being the father of a child or that he was married to Mary Frange.

The testimony of three witnesses, Mrs. Clara Bahr, Mrs. Lily Bowen and Mrs. Mary Dickinson, was received in evidence over the objections of the executor, who assigns cross errors to challenge the rulings of the court in admitting the evidence. The declarants whose statements were testified to by these witnesses were deceased members of the Frange family, admittedly related to claimant but not to Edward W. Morrison or any member of the Morrison family, either by blood or marriage, unless the alleged marriage between Edward W. Morrison and Mary Frange actually took place, and it is urged by the executor that, while claimant may establish his pedigree by these declarations, he cannot by the same declarations establish the relationship of marriage of the declarants to Edward W. Morrison, which alone makes the declarant’s statements admissible in evidence, since there is no record of any marriage between Edward W. Morrison and Mary Prange. We regard the' point as well taken. It was held in Jarchow v. Grosse, 257 Ill. 36, Blackburn v. Crawford’s Lessee, 3 Wall. 175, and Champion v. McCarthy, 228 Ill. 87, that before the declarations can be admitted in evidence, the relationship of declarant to the “family or individual to which he or she claimed to be related” must be established by other facts, and claimant cites no cases to the contrary. Nevertheless, the court admitted and considered the evidence of these witnesses, as specifically appears from a written opinion read by the court before the decree was entered, wherein the court said:

“As to the testimony of Mrs. Bahr, Mrs. Bowen and Mrs. Dickinson to conversations which they heard or had with their respective parents on the subject of the alleged marriage of Mary Pranga to Edward W. Morrison, the court has considered it as competent being of the opinion that even then the evidence fails to prove that Foulkes was a son of Edward W. Morrison.”

Upon consideration of the whole record the trial court stated:

“That a fair consideration and appraisal of all the evidence leads quite conclusively to the conclusion that William E. Foulkes has not sufficiently shown he is a son of decedent, Edward W. Morrison.”

We have carefully examined the record, which is quite voluminous and consists of almost 3,000 pages, and think the court was fully justified in arriving at that conclusion. Aside from the countervailing evidence offered by the executor to rebut the testimony introduced in support of the heirship of William E. Foulkes, there is the documentary evidence hereinbefore set forth showing that Edward W. Morrison was absent from the United States from April 17, 1857, until long after the date of claimant’s birth in 1859. If claimant was born in 1859, Edward W. Morrison could not have been his father, and all through the proceedings, beginning with the affidavit filed by claimant in the probate court and followed by strong supporting evidence, both oral and documentary, claimant’s birth date was shown to have been April 17, 1859. Under the circumstances the court could not fairly have reached any other conclusion.

Counsel take the position, however, that claimant always used April 17, 1859, as the date of his birth because he had been told by his foster father that he was born on that date and never learned otherwise, but that he was in fact born in 1857. This contention was made after the executor had introduced the evidence relating to the absence of Edward W. Morrison from the United States between 1857 and December, 1859. To sustain . the contention claimant sought in rebuttal to prove by Itha Foulkes, claimant’s daughter, that in December, 1929, after the death of Edward W. Morrison, she had a conversation with Martha Foulkes, claimant’s stepmother, then a very old lady confined to the Home for Incurables in Chicago who died in 1930 before the hearing of this cause, wherein Martha Foulkes had confided in her that the baptismal record introduced by the executor was false and told her to go to the Immanuel Church in search of a baptismal record made by Anna Frange, wife of William Frange, a brother of Mary Frange Morrison, claimant’s mother, and stated that “Anna Frange took the baby, Willie, over there and * had him baptized at the instance of James Morrison and she was paid for it. ’ ’ In other words, it was claimant’s contention that a three-month old baby was baptized in 1859, through connivance between James Morrison and Anna Frange in lieu of claimant, at a time when he was two years of age, so as to make it appear that Edward W. Morrison, who was admittedly absent from the country from 1857 to December, 1859, could not have been claimant’s father if claimant was born and baptized in 1859. The executor objected to the evidence because Martha Foulkes was not related to Edward W. Morrison and- therefore her declarations were inadmissible under the pedigree exceptions to the hearsay rule, which require, among other things, that the declarant be related by blood or marriage to the family with respect to which the declarations are made. (Jarchow v. Grosse, 257 Ill. 36, Blackburn v. Crawford’s Lessee, 3 Wall. 175, and Champion v. McCarthy, 228 Ill. 87.) Claimant’s counsel then stated that the testimony was not offered for the purpose of proving pedigree but to show the falsity of the baptismal record. We think the court properly excluded the evidence, because if it was not offered or admissible as tending to prove pedigree it was purely hearsay.

October 11, 1932, the trial court read his written opinion adverse to claimant. Three days thereafter plaintiff’s counsel, having evidently changed their position respecting the reasons why the proffered testimony of Itha Foulkes was admissible, stated that it was offered as pedigree evidence and asked the court to reconsider its ruling, and in support of the motion presented the affidavit of Itha Foulkes containing substantially the following subject matter:

That she is the daughter of claimant; that she had appeared as a witness before Judge Taylor on the 28th day of June, 1932, and had testified concerning a visit she had made to Martha Foulkes (second wife of Edward D. Foulkes, deceased, in whose home claimant had been raised); that she was asked to state conversation had with said Martha Foulkes, that said testimony was objected to by Mr. Jacobson and by the court sustained; that the following were matters of which she then was about to testify;

That in the afternoon of December 18th, or thereabouts, 1929, in company with one Laura Brown, she visited said Martha Foulkes at the Home for Incurables, located in Chicago, and that when Laura said to Martha Foulkes that Edward W. Morrison had just died, Martha appeared affected and said to affiant, “I want to see you alone”; that in a day or two affiant went back to the Home and saw Martha alone, about December 30, 1929, that Martha was then in bed and affiant was asked by Martha to come close to her, and that when she did so Martha said, “I have a confession to make, that I want you to tell your father, ever since I married Ed Foulkes I have known that your papa’s father was Ed Morrison, he was called Capt. Morrison, I was never allowed to tell your father for fear of sending both of us to the penitentiary, Ed, and myself, unless Ed Morrison was dead. Ed Morrison married your father’s mother when she was about 19 years old and your papa was born soon afterwards in the Morrison home on Harrison Street west of the river, right here in Chicago; Edward’s father, old Jim Morrison, separated them, he drove her out of the home with her baby, your papa; then Edward Morrison took your father’s mother over to her brother’s house, William Frange, and told her to wait for him to arrange to take her somewhere else, she was there a week or so when a letter came to her, she never told any one what was in the letter but she tore it up and put it in the stove, saying ‘never speak to me of my husband again. ’ Old Jim Morrison sent his son, Edward, to sea and he went away without saying goodbye to his wife and baby, I can’t remember the name of the vessel — while he, Edward, was away Old Jim Morrison went to your grandmother’s brother, William Frange, and gave him money to keep Edward’s son’s identity a secret. Jim Morrison wanted to get rid of both Mary and her baby, go he gave William Frange enough money to start himself up in business and later built a store building. William Prange agreed never to allow Edward Morrison to know where his son was. Old Jim Morrison told William Prange to take your father over and have him christened under any name but Morrison. This was never done by William Prange as he kept putting it off. In June, 1859, a young woman that Aunt Anna (William Prange’s wife) had befriended came to stop for a few days. She had a young baby. Anna took the baby over to the Lutheran Church and had it christened as Mary’s baby. After your papa’s mother died Ed Foulkes married me and told me to guard Willie as I would my life and to tell him Ed Foulkes was his father and that his birthday was April 17, 1859. You can find that baptism in the old Taylor Street Church. Both William Prange and Ed Foulkes received money from old Jim Morrison until the time of Jim Morrison’s death. ’ ’

That the conversations with Martha were had at different times from December, 1929, up to the latter part of January, 1930. That on January 24, 1930, affiant was directed to go to see Mr. Jacobson, sent by Mr. Velde of the Chicago Title & Trust Company, then executor’s attorney, and Mr. Jacobson informed affiant that he knew who the heir was and all that Mr. Starr need do was to present his client. At said time affiant communicated to Mr. Jacobson the whereabouts of Martha Foulkes who was at the Home for Incurables and thereafter said Jacobson sent his secret female agent as disclosed in the record with this Jacobson’s letter to the Superintendent, Mr. Mitchell, to extend courtesies to bearer, Mrs. Sharon Lawson, who represented herself to affiant as a patient in the home.

The court refused to consider the proffered evidence as tending to prove pedigree, and claimant now relies upon that ruling as one of the grounds for reversal. It has been generally held that in order to render pedigree evidence admissible as an exception to the rule excluding hearsay testimony, the declarations of the deceased person on questions of pedigree must be made before any controversy has arisen. In Sugrue v. Grilley, 329 Ill. 458, the court, regarding a declaration concerning parentage made after death of the person whose heirship was in question, said (pp. 465, 466):

“Declarations made after a controversy concerning the parentage of a child arises lack the guaranty of trustworthiness which is present when the declarant is free from inducement to misrepresent the facts. Under such circumstances they are subject to a strong suspicion that the declarant is making evidence to serve his own ends. While the controversy must be such as to justify the conclusion that the mind of the declarant is not free from bias, it is not necessary that litigation should have actually begun. ’ ’

In Rollins v. Wicker, 154 N. C. 559, it was held that declarations to be admissible under the pedigree rule must be made prior to the beginning of the controversy ; otherwise they must be rejected as evidence. The court there said that it is “the commencement of the controversy and not the commencement of the suit which determines whether the declarations should be rejected or not.” The reason underlying the rule is well stated by the court, as follows (p. 562):

“The value of this kind of evidence depends upon its being drawn from an unbiased source, and it should emanate from those in a situation favorable to a knowledge of the truth, and, what is a very important consideration, it should refer to a period ‘when this fountain of evidence was not rendered turbid by agitation. ’ ”

It clearly appears that the alleged declarations of Martha Foulkes were made after the death of Edward W. Morrison. She knew of his death and it is not unlikely that she also knew what was common newspaper gossip, namely, that Edward W. Morrison was interested in an estate worth several millions of dollars. She undoubtedly wished to help her foster son, the claimant, and was talking with his daughter who lived with him. It is fair to assume that she made these alleged statements to support any claim then in contemplation by claimant. Immediately upon Morrison’s death the question of his heirship became a matter of controversy, and it then seemed quite certain that litigation would arise over the same. The record discloses that within a month after the declarations were made an attorney was retained to represent claimant. We think the foregoing authorities are particularly applicable to the circumstances of this case, and Welch v. Worsley, 330 Ill. 172, and Jarchow v. Grosse, 257 Ill. 36, are to the same effect.

The testimony of Itha Foulkes concerning the declarations of Martha Foulkes was properly rejected for the further reason that the declarant was not related by blood or marriage either to claimant or to Edward W. Morrison. She was the widow of Edward Foulkes, the husband of Mary Prange, claimant’s mother. Since Edward Foulkes was not the father of claimant, Martha was not related by blood or marriago to claimant, and it is of course admitted that she was not related by blood or marriage to Edward W. Morrison. In re Wendel’s Estate, 262 N. Y. S. 41, decided in 1933, one of the questions involved was the admissibility of declarations of a foster mother of claimant regarding his paternity. Thomas Patrick Morris claimed he was the son of John Gf. Wendel, a brother of the decedent, and that by reason of such relationship he was the decedent’s nephew and her sole next of kin. The court excluded evidence consisting of pedigree declarations made by persons not related to the Wendel family as to the marriage of James Gr. Wendel and the paternity of the claimant, under the rule laid down in Aalholm v. People, 211 N. Y. 406, and other cases cited in the opinion, including Blackburn v. Crawford’s Lessee, 3 Wall. 175, wherein it was said that the rule as to the' admissibility of such declarations is subject to three conditions: (1) The declarant must be dead; (2) they must have been made ante litem motam, i. e., at the time when there was no motive to distort the truth; and (3) the declarant must be related either by blood . or affinity to family concerning which he speaks. Under the third limitation the alleged declarations of one Michael Lynch, a former servant in the Wendel family, made to his daughter, were excluded by the surrogate and similar declarations made by other persons not related to the Wendel family were likewise excluded. The legal principle involved is heretofore discussed in connection with the admissibility of the evidence of Mrs. Bahr, Mrs. Bowen and Mrs. Dickens, and the cases there cited are likewise applicable to the question under discussion.

It is also urged that the court erred in admitting the baptismal record of claimant in evidence. Edward Hoelter, pastor of the Immanuel Evangelical Lutheran Church, who testified on behalf of the executor, produced the church record of that congregation, containing baptisms from 1854 to 1868 and all marriages from 1854 to 1869. These records were in the German language, copies of material portions thereof were introduced by the executor and the witness translated so much of the record as was material. It appears from his testimony that baptism No. 834, which appeared on p. 77 of the record, was a ceremony performed with respect to one Ernest, born April 17, 1859, baptized June 30, 1859, whose parents were Jacob' Meek and Marie, née Frange, and that the sponsor was William Frange, who was represented by the mother of the child, and that the baptism was performed by J. A. F. W. Muller. It is conceded 'that ordinarily the church record of a baptism is admissible in evidence only for the purpose of proving the fact of baptism, its date, the place of baptism and that the person baptized was born prior thereto. Claimant’s counsel admitted that the baptismal record was that of claimant, and one of his witnesses, Clara Bahr, testified that her parents told her claimant was baptized in a Lutheran church on Taylor street. Prior to 1888 Rev. Hoelter’s church was located at Taylor and Brown (now Sangamon) streets. As heretofore stated, it was not until three days after the court had read its opinion that the affidavit of Itha Foulkes, which for the first time attacked the identity of the person baptized, was submitted to the court. The baptismal record was clearly admissible for the purpose of proving the fact of baptism, its date, the place of baptism and the fact that the party baptized was born before the ceremony took place (Blackburn v. Crawford’s Lessee, 3 Wall. 175; Winkelmann v. Winkelmann, 345 Ill. 566), and there appears to be no contention to the contrary. In the course of a discussion on this subject the trial court stated that he did not attach great importance to the record, evidently because the clear preponderance of the evidence showed that the claimant was born April 17, 1859, and the record would sustain this fact even though the baptismal record was entirely rejected.

Claimant’s counsel lays much stress upon photographs introduced in evidence for the purpose of disclosing a resemblance between claimant and Edward W. Morrison. It was held in In re Wendel’s Estate, 262 N. Y. S. 41, that in paternity cases the rule of evidence in New York prohibits the exhibition of the child to the jury to prove resemblance to the alleged father. Bilkovic v. Loeb, 156 App. Div. 719, is cited. In that case evidence of similarity between the child and the supposed father was stated to be “neither accurate nor reliable.” The court said that “if the evidence is to be excluded where both persons are alive and are before the jury or trial justice, an even more rigid rule should be applied to prevent such testimony in cases where one of the parties is dead and the claimant to the inheritance alone is before the court.” In Sheehan Estate, 139 Pa. 168, the court said (p. 182):

“We all know that striking likenesses often occur between persons who are not of the same blood; so strong that in many instances the one is mistaken for the other.”

The Supreme Court of Illinois in People v. Kingcannon, 276 Ill. 251, included in its opinion the following quotation from Beck’s Medical Jurisprudence, upon the same subject:

“ . . . ‘It has been suggested that the resemblance of a child to the supposed father might aid in deciding doubtful cases. This, however, is a very uncertain source of reliance. We daily observe the most striking differences in physical traits between parent and child, while individuals born in different parts of the globe have been mistaken for each other. ’ ”

During the later years of Morrison’s life he was involved in prolonged litigation. In January, 1917, he was adjudged to be a spendthrift in a proceeding tried in the probate and circuit courts of Cook county. An appeal was prosecuted to the Appellate Court (People v. Morrison, 214 Ill. App. 645 [Abst.]) which determined the matter and certiorari was denied by the Supreme Court. Morrison became involved in lengthy litigation with one Rieman. That case passed through various courts of review of this State. (Rieman v. Morrison, 184 Ill. App. 20; 207 Ill. App. 394; 264 Ill. 279.) As the result of the Rieman controversy bankruptcy proceedings were instituted against Morrison which were contested and went to the United States Circuit Court of Appeals. Morrison’s trustee in the bankruptcy case filed a bill against James B. Ward in the federal court in Chicago to set aside the deed from Morrison to Ward and a decree setting aside the deed was affirmed by the United States Circuit Court of Appeals. After Ward’s death Morrison filed a petition in the probate court praying for restoration of his property, and was found by the verdict of a jury to be no longer a' spendthrift, and his property was restored to him. Thereupon he conveyed substantially all his property to the Chicago Title & Trust Company by an irrevocable trust agreement, dated October 21, 1921, wherein he made provision for the payment of his debts, the liabilities arising out of various legal proceedings in which he had been engaged, and for the payment to himself of an income during life. Many of these cases and Morrison’s difficulties in connection with the litigation were reported in the newspapers. During all this time claimant remained silent and never asserted the claim that he was a son of Edward W. Morrison. Neither did Martha Foulkes come forward to divulge the information which she is claimed to have .possessed through all the years. The affidavit presented to the court stating that she was not at liberty to divulge the information during the lifetime of Edward W. Morrison, for fear that both of them would be sent to the penitentiary, contains no plausible reason for withholding this information. Moreover, throughout his entire life, claimant had given April 17, 1859, as the date of his birth, and so stated in his verified affidavit filed in the probate court in December, 1930, which initiated these proceedings. That was more than 10 months after the declarations of Martha Foulkes were alleged to have been made to his daughter, Itha, who lived with him and assisted him in gathering evidence to support his claim. All these circumstances were undoubtedly taken into consideration by the trial court in reaching the conclusion that claimant was not the son of Edward W. Morrison. The decree of the court and the findings thereof are abundantly supported by the record. ■

During the pendency of these proceedings in the Appellate Court the executor made two motions, one to dismiss and the other to abate the writ of error. Both of these motions will be denied.

Claimant’s counsel suggested the death of William E. Foulkes, plaintiff in error, and moved the court that Harriet A. H. Foulkes, as executrix of the last will and testament of her father, be substituted as plaintiff in error in his stead. This motion is allowed.

For the reasons stated herein the decree of the circuit court is affirmed.

Affirmed.

Scanlan, P. J., and Sullivan, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Kilgore Linotyping Company, Appellee, v. J. Koven Company, Inc., Appellant.
    Gen. No. 38,090.
    Opinion filed December 30, 1935.

      Louis I. Cordon, of Chicago, for appellant; Abraham Miller, of Chicago, of counsel.
    Teller, Levit, Silvertrust & Levi, of Chicago, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

September 15, 1934, plaintiff brought suit in the municipal court and filed a statement of claim alleging that its suit was based on a trade acceptance dated April 7, 1932, and due July 5, 1932, drawn by defendant on Motive Equipment Co., accepted by it, indorsed by defendant and delivered to plaintiff before maturity for a consideration of $220.75; that the trade acceptance was drawn, accepted and payable in Chicago; that due demand for payment was made on the Motive Equipment Co. and refused; that subsequent thereto the Motive Equipment Co. made a voluntary assignment for the benefit of creditors and the amount of the trade acceptance was listed with the liabilities of the Motive Equipment Co.; that by virtue of the indorsement of the trade acceptance by defendant and delivery thereof to plaintiff for a valuable consideration before maturity, defendant became liable to plaintiff in the sum of $220.75, which it has refused to pay; and that there was also due plaintiff for interest on the aforementioned sum, $30.94, making a total of $251.69, for which it prayed judgment.

Defendant filed its appearance on September 26, 1934, and demanded trial by jury. Thereafter on October 10,1934, it moved the court to strike the statement of claim on the ground that it failed to allege the giving of notice of dishonor to defendant, in accordance with section 88 of the Negotiable Instruments Law. The motion was overruled.

November 14, 1934, defendant filed its amended affidavit of merits, wherein

(1) It denied that due demand was made for payment on said Motive Equipment Co. as set forth in plaintiff’s statement of claim;

(2) Denied that the amount of said trade acceptance was listed with the liabilities of the Motive Equipment Co. in its voluntary assignment for the benefit of creditors to H. W. Cline, Assignee, and that a dividend of 12 per cent was paid by said Cline to defendant, as alleged in plaintiff’s statement of claim;

(3) Denied that by virtue of the indorsement of the trade acceptance by defendant and delivery to plaintiff for a valuable consideration before maturity it became liable to plaintiff in the sum of $220.75, as alleged;

(4) It averred that plaintiff deposited said trade acceptance with the Chicago Bank of Commerce for collection, that said bank closed its doors June 24, 1932, prior to the maturity of said trade acceptance, and that the same was not presented to the Motive Equipment Co. for payment on the date of its maturity, July 5, 1932, at which time the Motive Equipment Co. had sufficient funds to pay the trade acceptance;

(5) It further averred “that defendant received no notice of dishonor of said trade acceptance by said Motive Equipment Co., and that consequently plaintiff failed to comply with section 88 of the Negotiable Instruments Law of this State, (Cahill’s Illinois Revised Statutes, 1933, Chap. 98,) which provides: ‘Except as herein otherwise provided, when a negotiable instrument has been dishonored by non-acceptance or nonpayment, notice of dishonor must be given to the drawer and to each indorser, and any drawer or indorser to whom such notice is not given is discharged’ ”; that defendant is not indebted to plaintiff in the sum of $251.69, or any sum whatsoever.

November 21, 1934, plaintiff moved the court to strike the amended affidavit of merits on the ground that paragraphs 1 and 3, as hereinabove set forth, were general denials and that paragraph 5 did not set up any defense to the action. The court sustained the motion, entered an order striking defendant’s entire amended affidavit of merits, defaulted defendant for want of an affidavit of merits, it having elected to stand by its amended affidavit, assessed plaintiff’s damages in the sum of $251.69, and entered a default judgment for that sum and costs against defendant.

November 30, 1934, defendant filed a petition pursuant to rule 277 of the Civil Practice Rules of the municipal court of Chicago, setting forth the trade acceptance sued upon and all the aforementioned proceedings, and requested the court to reconsider the order of November 21, 1934. The petition contained . citations from the Negotiable Instruments Law, rules of the municipal court and various decisions of the Appellate and Supreme Court in support of its petition. The court, however, overruled the motion to reconsider the order of November 21, 1934, whereupon defendant prosecuted its appeal from the orders and judgment theretofore entered.

The sole question presented for consideration is whether the amended affidavit of merits sets forth a valid, legal defense to plaintiff’s statement of claim. The action herein is brought against an indorser of a trade acceptance, which has been defined as a draft or bill of exchange drawn by the seller on the purchaser of goods and accepted by such purchaser. (Atterbury v. Bank of Washington Heights, 241 N. Y. 231.) Both parties treat the trade acceptance as a negotiable instrument and discuss its applicability to the Negotiable Instruments Law, and we, therefore, assume it to be governed by that statute. Section 88 of the Negotiable Instruments Law of Illinois provides that:

“Except as herein otherwise provided, when a negotiable instrument has been dishonored by non-acceptance or nonpayment, notice of dishonor must be given to the drawer and to each indorser, and any drawer or indorser to whom such notice is not given is discharged.” Ill. State Bar Stats. 1935, ch. 98, fí 110. The word “drawer” as used in the act is not ordinarily employed in connection with parties to a note (8 Corpus Juris 62), and since a trade acceptance is a species of bill of exchange the foregoing section of the act would seem to be applicable to trade acceptances.

Buie 82 of the Civil Practice Buies of the municipal court expressly recognizes want of notice of dishonor as a defense by an indorser of a negotiable instrument, and note 7 to said rule states that such defense should be pleaded as follows:

‘ ‘ 7. The defendant had not due notice of dishonor. ’ This is substantially the language employed in paragraph 5 of the amended affidavit of merits, which states that defendant received no notice of dishonor of said trade acceptance by the Motive Equipment Co. and that plaintiff failed to comply with section 88 of the Negotiable Instruments Law.

It has been generally held that want of notice of dishonor constitutes a good defense to an action against an indorser of a negotiable instrument. In Tucker v. Mueller, 287 Ill. 551, the court, in discussing the liability of an indorser of a bill or note, and after citing 8 Corpus Juris 75, 79, said (p. 557):

“Under the law merchant an indorsement of a bill or note amounts to a contract on the part of the indorser that if, when duly presented, the note is not paid by the acceptor or maker the indorser will, upon due and reasonable notice given him of the dishonor, pay it to the indorsee or other holder. The Negotiable Instruments Law, which merely declares the rules of the common law, provides that ‘he engages that on due presentment it shall be accepted or paid, or both, as the case may be, according to its tenor, and that if it be dishonored and the necessary proceedings on dishonor be duly taken he will pay the amount thereof to the holder or to any subsequent indorser who may be compelled to pay it.’ The indorser’s liability as such becomes fixed when demand of payment of the note is made of the principal on the day that it falls due, is refused and he is notified thereof.” (Citing authorities.)

In Industrial Bank of Chicago v. Bowes, 165 Ill. 70, the court, in discussing the distinction between bills of exchange and notes, said (p. 73):

‘The law is well settled that a bill of exchange must be presented to the drawee within a reasonable time, and where payment is refused notice must be given promptly to the drawer, otherwise he cannot be held liable.” (Citing authorities.)

Like expressions were employed by the court in Montelius v. Charles, 76 Ill. 303; Morehouse & Wells Co. v. Schwaber, 118 Ill. App. 44; Vaughan v. Potter, 131 Ill. App. 334, and in other cases cited by defendant. Plaintiff cites no authorities to the contrary. It would appear, therefore, that the amended affidavit of merits presented a valid defense to plaintiff’s action under the rules of the municipal court, under the Negotiable Instruments Law aiid under the decisions of this State.

The amended affidavit of merits denies that demand was made for payment on the Motive Equipment Co., that the amount of the trade acceptance was listed with the liabilities of the Motive Equipment Co. in its voluntary assignment for the benefit of creditors, and affirmatively avers that the trade acceptance was deposited with the Bank of Commerce for collection and not presented to the Motive Equipment Co. for payment at maturity, because the bank had closed its doors on June 24, 1932, prior to the maturity of the trade acceptance. It is also affirmatively averred that no notice of dishonor of the trade acceptance by Motive Equipment Co. was received by defendant. These are positive averments, and if established by competent evidence would constitute a defense to plaintiff’s action.

It is urged by plaintiff, however, that the averments contained in the amended affidavit of merits are not sufficiently positive. This was evidently the theory that the court adopted in striking the affidavit. Plaintiff evidently relies on rule 81 of the Civil Practice Rules of the municipal court, which provides that in actions for a liquidated demand for money a mere denial of the debt shall not be permitted. There is a distinction, however, between a general denial of a debt or liability and a specific denial of facts alleged as creating the debt or liability. Rule 81 is identical with the former municipal court rule 15, upon which this court had occasion to pass in Wolfort v. David Lipsey Co., 189 Ill. App. 34, where an affidavit of merits denying the facts alleged in a statement of claim was stricken. In reversing the judgment the court said:

“A rule of the Municipal Court that a mere denial will not be regarded as a sufficient affidavit of merits can have no reasonable application to a case in which the nature of the defense shown by the affidavit of merits is a complete and specific denial of all the facts alleged in plaintiff’s affidavit of claim.”

If the instrument sued on be considered as a negotiable instrument, then rule 82 of the municipal court, section 88 of the Negotiable Instruments Law, and the decisions construing it, are precisely in point, and the averment that “no notice of dishonor of the trade acceptance was received by defendant” would in itself be sufficient to constitute a defense upon which defendant would be entitled to proceed to trial.

It was said in Buchsbaum v. Halper, 265 Ill. App. 226, that the interests of justice are not served by determining the rights of parties by technical rules of pleading, especially where the affidavit of merits discloses prima facie a good defense to plaintiff’s action, and that there should be a trial upon the merits. We think the defendant in this proceeding was entitled to have its case tried upon the merits, and that it was error for the court to strike the amended affidavit of merits and render judgment in favor of plaintiff on its statement of claim. Accordingly, the judgment of the municipal court will be reversed and the cause remanded with directions to vacate the order striking the affidavit of merits and to proceed further in accordance with the views herein expressed.

Reversed and, remanded with directions.

Soanlan, P. J., and Sullivan, J., concur.


author: Mr. Justice Friehd

text:
    James H. Hooper, Appellant, v. General Electric X-Ray Corporation, Appellee.
    Gen. No. 38,125.
    Opinion filed December 30, 1935.
    James H. Hooper, pro se.

      Essihgton & McKibbih and Walter E. Beebe, of Chicago, for appellee.
   Mr. Justice Friehd

delivered the opinion of the court.

May 19, 1929, plaintiff, James H. Hooper, filed his amended bill of complaint in the circuit court, alleging that June 16, 1916, he was the owner of 71.8 shares of stock in the Scheidel-Western X-Ray Co., an Illinois corporation; that the certificates representing this stock had been issued by mistake on old blanks printed for the Scheidel-Western X-Ray Coil Co., the former name of the Scheidel-Western X-Ray Co., its name having been changed; that Scheidel-Western X-Ray Co. gave due notice, called a meeting of its stockholders, who agreed upon a plan for the sale of the assets of the corporation to Victor Electric Corporation of the State of New York; that the special meeting of the stockholders of the Illinois corporation which authorized this sale was held in Chicago June 16,1916, and the resolution authorizing its officers and directors to sell all the assets according to an agreement with the Herbert S. Blake Co., bearing date September 25, 1915, was unanimously carried.

The amended bill further alleged that June 25, 1917, the Scheidel-Western X-Ray Co., by its president, notified plaintiff that the registrar of the Victor Electric Corporation was about.ready to issue stock in the new corporation to take the place of that which complainant held in the Scheidel-Western X-Ray Co. The notice stated that the records showed plaintiff to be the holder of 71.8 shares of said stock, and that he would receive in the new corporation 19% shares of first preferred stock, 15 shares of second preferred stock and 60 shares of common stock, and that arrangements had been made with the Central Trust Company of Illinois to accept the old Scheidel-Western certificates of stock, and upon receipt thereof to turn over to complainant the above mentioned number of shares of stock in the Victor Electric Corporation.

It further appears that September 29, 1920, the Victor Electric Corporation of New York merged with another New York corporation, forming the Victor X-Ray Corporation, which was named defendant in the amended complaint, and under the terms of the consolidation agreement stockholders of the Victor Electric Corporation, upon surrender of their stock, were to receive certain shares of stock in the Victor X-Ray Corporation.

The amended bill further avers that at all times since June 16, 1916, until May 19, 1928, Hooper had in his possession one certificate for 50 shares and one certificate for 21.8 shares of the capital stock of ScheidelWestern X-Ray Co., and that these were the same certificates which had been theretofore issued to plaintiff by the corporation. In another amendment, filed January 11, 1930, it is averred that Scheidel-Westera X-Ray Co. delivered the stock certificates received from Victor Electric Corporation to the Central Trust Company as its agent, and directed Central Trust Company to deliver these stock certificates to the respective persons and for the respective amounts to which the stockholders of the Scheidel-Western X-Ray Co. were entitled, as heretofore set forth.

The amended bill further alleged that about one week prior to August 1,1916, plaintiff secured from the deféndant Cash a loan of $300, and pledged to him as security therefor his said certificate for 21.8 shares, which was to be held by Cash as collateral for the loan; that Cash, in violation of his agreement, surrendered it and caused the Scheidel-Western X-Ray Co. to reissue to him in his own name a new certificate; that on the day of its issue Hooper paid Cash the $300 loan in full and demanded the return of the collateral, whereupon Gash indorsed this last reissued certificate, which was signed by the president of the corporation and by Gash, as its secretary, and handed it to plaintiff in lieu of said collateral.

It is further alleged that there were issued in the name of Gash stock certificates representing 54 shares of the first preferred stock, 41 shares of the second preferred stock, and 164 shares of the common stock of Victor Electric Corporation; that Gash appeared on the stock books of Scheidel-Western X-Ray Co. as the holder of 136.8 shares of the capital stock of said company, in which were included 21.8 shares of said stock owned by plaintiff and pledged to Gash and which were issued to him on August 1,1916; that Scheidel-Western X-Ray Co. delivered this certificate to Central Trust Company, as its agent, and directed its said agent to deliver the stock certificates to the respective persons in whose names said stock certificates were issued, but only upon the surrender by said persons to Central Trust Company of their equivalent stock certificates of the Scheidel-Western X-Ray Co.; that Scheidel-Western X-Ray Co. directed its agent, the Central Trust Company, to deliver 54 shares of first preferred stock, 41 shares of second preferred stock and 164 shares of common stock of Victor Electric Corporation to Gash only upon the surrender by him to the Central Trust Company of stock certificates representing 136.8 shares of stock of Scheidel-Western X-Ray Co., but that Central Trust Company violated its instructions and delivered to Gash the stock of Victor Electric Corporation upon the surrender of certificates representing only 115 shares of stock of Scheidel-Western X-Ray Co.; that Central Trust Company violated its directions, under which it acted as agent and as escrowe for hire, by delivering to Gash 9% shares of the first preferred, 6% shares of the second preferred, and 26 shares of common of the Victor X-Ray Corporation, without compelling him to return to it for the Scheidel-Western X-Ray Co. and the Victor X-Ray Corporation the outstanding certificate owned by complainant of 21.8 shares of the stock of the ScheidelWestern X-Ray Co.; whereas said escrowe should have delivered the said 9%, 6% and 26 shares, respectively, to plaintiff.

The amended bill further averred that Victor X-Ray Corporation has since Gash received the 9%, 6% and 26 shares, respectively, paid him $3,050 in dividends thereon and has redeemed them by paying to Gash therefor $6,872.50, all of which are alleged to be the property of plaintiff and were received by Gash as trustee for plaintiff; that Gash, having been on August 1, 1916, and for several years prior thereto and thereafter, the secretary and at times president of the Scheidel-Western X-Ray Co., and during all of said time a trustee of Scheidel-Western X-Ray Co., his knowledge that plaintiff owned these 21.8 shares was in law the knowledge of Scheidel-Western X-Ray Co., and because of the consolidations heretofore mentioned, was also the knowledge of the Victor X-Ray Corporation.

The amended bill further averred that the redemption moneys and dividends so received by Gash from the 21.8 shares, or from the stock into which the 21.8 shares were exchanged, were invested'by him to improve or to pay off incumbrances upon certain real estate in Wilmette, Illinois, and in the purchase of $3,000 par value of stock of the Twentieth Century Life Co.

The amended bill prays that defendants may be decreed to render an accounting to plaintiff of all dividends in stock and proceeds thereof which have accrued and come into their possession, and that the real estate and the stock in the Twentieth Century Life Co. be impressed with a lien in favor of plaintiff; that Victor X-Ray Corporation may also be decreed to render ail accounting to plaintiff for all dividends earned and declared by its predecessor in interest, the Victor Electric Corporation, on 28% shares of its first preferred stock, 21% shares of its second preferred stock, and 86 shares of its common stock, for the period between June 16, 1916, and September 29, 1920; that said defendant be decreed to account to plaintiff for all dividends earned and declared by it on 1405 shares of its class “A” preferred stock and 91.2 shares of its class “B” preferred stock, from September 29, 1920, until the time of the filing of the original complaint; that the court may decree that the certificate of stock for 21.8 shares then held by plaintiff be reformed and decreed to be 21.8 shares of the capital stock of the Scheidel-Western X-Ray Co., and that said defendant be decreed and required to issue to plaintiff certificates for 41.5 shares of class “A” and 28.125 shares of class “B” stock in said defendant corporation.

Demurrers interposed to the foregoing amended bill of complaint were sustained, and the bill dismissed. Thereafter Hooper prosecuted an appeal to the Appellate Court. The cause was docketed under No. 34,606, and January 26, 1931, the Appellate Court affirmed the decree of the circuit court (unpublished opinion by Mr. justice Matchett, 259 Ill. App. 668 [Abst.]). Hooper thereupon filed his petition for a writ of certiorari to the Supreme Court of Illinois, which was on April 22, 1931, denied.

Thereafter, August 17, 1931, Hooper filed a second bill of complaint in the circuit court which made substantially the same averments as the original and amended complaint hereinbefore outlined, differing in this respect only, — that General X-Ray Corporation, successor to the Victor X-Ray Corporation, was made sole defendant. A. D. Gash and Central Trust Company were not joined as parties defendant therein. To this second complaint defendant filed a general and special demurrer averring that the complaint on its face showed a prior adjudication and setting forth in detail the decisions, adverse to Hooper, in the Appellate and Supreme Courts.

In reviewing the sufficiency of the first bill of complaint the Appellate Court held the same to be defective on grounds of multifariousness and also because it appeared from the face of the bill that Hooper was guilty of gross laches. That portion of the opinion which discusses the question of laches reads as follows:

“So far as the Victor X-Ray Corp. is concerned, we think also that the bill shows upon its face that complainant is guilty of gross laches, which is a complete bar to the relief demanded. The transaction upon which this suit is based took place on June 16, 1916, and this bill of complaint was filed on May 19, 1929. The bills show that during all this time Hooper had full knowledge of the facts, or that if he did not have full knowledge he could have learned all the facts upon slight inquiry. He was obligated to make such inquiry. He knew all this time that the record of the corporations in question showed Gash to be the owner of 21.8 shares of stock which he now claims. He kept the certificate issued in the name of Gash in his possession for 13 years. He permitted Gash during that time to receive all the benefits incident to such record ownership. By his bill he now seeks to avoid the consequences' of his own negligence and to impose upon the Victor X-Ray Corp. (which so far as the record shows never had any knowledge even of his existence) a liability for the money he permitted to be paid to defendant Gash. Upon the clearest principles, he is guilty of laches which bars his recovery. That equity does not permit a complainant in such a situation to recover has been decided in cases so numerous that it is unnecessary to cite them. ’ ’

In filing the second proceeding notwithstanding the adverse decisions of two reviewing courts Hooper was, of course, fully aware that the subject matter of his two complaints was identical, for the second complaint recites “that on January 21,1929, he filed his bill practically to the same effect and for the same prayer as contained herein, except that he joined Central Trust Company and A. D. Gash as additional defendants and the separate allegations as to facts and relief against them, ’ ’ and he avers that the several special demurrers “alleging that said bill was multifarious” were sustained “for that reason” and that the Appellate Court affirmed the-decree of the circuit court “for the same reason.” He does not, however, allude to that part of the Appellate Court opinion hereinbefore set forth which unequivocally holds that he was “guilty of gross laches” as an additional reason for sustaining the decree of the circuit court dismissing the first complaint. The decree from which this appeal is prosecuted recites the former Appellate Court opinion and the denial of certiorari by the Supreme Court, and specifically finds that the former proceeding was dismissed on ground of laches. Yet Hooper did not set forth in his abstract the decree from which he appeals, but left it for defendant to supply the omission in its supplemental abstract. Hooper evidently filed the second complaint upon the theory that the omission of Gash and Central Trust Company as defendants would obviate the question of multifariousness, in respect to which he concedes the first bill to have been defective, but he disregards the fact that the reviewing court also held it subject to demurrer on ground of laches, which appear in the second complaint as well as in the first.

It is obvious that there was an identity of parties and subject matter in the two proceedings, and that the dismissal of the first complaint was a complete adjudication of Hooper’s rights. (Pratt v. Griffin, 223 Ill. 349; Knobloch v. Mueller, 123 Ill. 554.) The question of res adjudícala was properly raised by demurrer. (Tinker v. Babcock, 204 Ill. 571; Ferriman v. Gillespie, 250 Ill. 369.)

For the reasons stated the decree of the circuit court sustaining the general and special demurrers of defendant to the second complaint and dismissing same is affirmed.

Affirmed.

Scanlan, P. J., and Sullivan, J., concur.


text:
    Michele Trento, Appellant, v. Achille DeBenedetti, Appellee.
    Gen. No. 38,136.
    Opinion filed December 30, 1935,

      Earl J. Walker, of Chicago, for appellant.
    Maurice R. Marchello, of Chicago, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

Plaintiff brought an action in contract in the municipal court and filed his statement of claim alleging in substance that he had in 1925 opened a savings account in the Roseland State Savings Bank, and on August 25, 1930, had on deposit therein the sum of $2,007.27; that defendant, engaged in operating a grocery and market in Roseland also maintained an account in the bank, as did many of his customers in the neighborhood, and that he had frequent and numerous financial transactions with the bank, all of which made it especially desirable for defendant to have the bank remain open and solvent; that on or about August 25,1930, the bank was reputed to be in doubtful financial circumstances and numerous depositors were withdrawing their accounts; that plaintiff, knowing these facts, had also gone to the bank and was standing at the paying teller’s window with his pass book and other necessary credentials ready to withdraw all his money then on deposit, when defendant approached him and requested plaintiff not to withdraw his deposit, assuring him that the bank was sound and solvent and stating that if it were to close he, defendant, would suffer great financial loss and damage to his business, and “did then orally promise plaintiff that if he would in the future leave his funds remain on deposit in said bank, except casual withdrawals that he, said defendant, would individually pay the plaintiff any and all sums standing to his credit in case and when said bank failed or was closed”; that in consideration of the aforesaid promise of defendant plaintiff retained a large deposit in the bank until it failed July 6, 1931? when there remained a balance of $1,249.83; that he has sustained damages to the extent of $800, for which suit was instituted.

Defendant moved to strike plaintiff’s statement of claim, and the motion having been sustained by the court, plaintiff elected to stand by the statement of claim. Thereupon the court sustained the further motion of defendant to dismiss the suit for want of a sufficient statement of claim and entered judgment for defendant, from which plaintiff appeals.

The question presented for consideration is whether plaintiff’s statement of claim sets forth'a good and -sufficient cause of action. The promise being oral, plaintiff seeks to avoid the operation of the statute of frauds (Ill. State Bar Stats. 1935, eh. 59), on which defendant relies, by urging that the averments of his statement of claim show that defendant had a financial interest in keeping the bank open, not only by reason of his own deposits therein but also because of losses that would have resulted from the calling of his customers’ loans and their consequent inability to pay their, accounts with defendant in the event of the bank’s insolvency, and it is urged that because of these specific beneficial considerations the alleged oral promise became an original undertaking whereby plaintiff relied solely on defendant’s promise and not on the bank’s obligation.

To sustain this theory of recovery plaintiff cites and relies on several cases wherein defendant, who was in some way personally benefited by the undertaking, orally promised to pay the debts of a third person in consideration of the forbearance of some right possessed by plaintiff. Garren v. Youngblood, 207 N. c. 86, 176 S. E. 252, is one of these. In that case one of the banil’s depositors was dissuaded from withdrawing her money by the assurances of defendant, also a depositor and one of the stockholders of the bank, that the bank was solvent and his assertion that if she would allow her funds to remain on deposit defendant would see that she suffered no loss. Upon the failure of the bank a month later plaintiff sued defendant, who relied on the statute of frauds. The court held the promise to be an “original one, and upon sufficient consideration.” Defendant, being a stockholder of the bank, was confronted by possible liability in the event of the bank’s insolvency, and this fact evidently led the court to the conclusion that the “real character of a promise does not depend altogether upon the form of expression," but largely upon the situation of the parties and whether they understood it to be a collateral or a direct promise.”

In Lusk v. Throop, 189 Ill. 127, D. D. Streeter & Co. were constructing a railroad in McHenry county. A portion of the work was sublet by them to Carlson and Olson. Throop and Pinnow were at that time merchants in the village of Nunda, conducting a general store. The subcontractors, Carlson and Olson, applied to Throop for supplies for themselves and their employees while carrying on the construction project. After Carlson and Olson had asked Throop for credit Throop had a conversation with Frank S. Lusk, junior member of D. D. Streeter & Co., the principal contractors, about extending credit to Carlson and Olson. After the conversation Throop proceeded to furnish and deliver the supplies requested. It was charged in the suit instituted by Throop against Lusk that Lusk’s promise to pay for any supplies that might thereafter be delivered to Carlson and Olson was an original undertaking and not collateral, and that Lusk was liable thereon. The statute of frauds was interposed as a defense. It was held that where goods are furnished to a third person at the request and upon the credit of the promisor the undertaking is an original one and the statute of frauds does not apply. In that case, however, credit was given to the third person at the request of the promisor, and therefore the court had no alternative but to hold that the promise was an original one. Moreover, there was no debt existing at the time of the oral promise, which evidently affords a distinction from the instant case, as indicated by the court’s opinion, in which it is stated that “if, for example, appellees had already delivered the supplies to Carlson and Olson, and after such delivery, appellants had promised to pay for the same, then the promise would be to pay an existing debt due from a third person, and, hence would come within the meaning of the statute.”

Beltine Chemical & Mfg. Co. v. Zulfer, 152 Ill. App. 308, is cited also. In that case plaintiff, who sold laundry machinery, had an overdue account of $741.10 against the Mattman Laundry Co., which it was endeavoring to collect. Defendant, Zulfer, was then president of the laundry company and held a chattel mortgage upon its personal property securing the payment of an indebtedness of some $7,000 owed by the company to him. One Esden, manager of the plaintiff company, called on Zulfer and told him that if the account were not paid suit would be brought against the laundry company. Zulfer replied, “If you do that I shall have to foreclose my mortgage and you will be wiped out and you will get nothing. Now, I will take that account up and pay it myself, at the rate of $100 per month. ” After the lapse of some two weeks Esden again saw Zulfer and told him that plaintiff would accept the proposition, whereupon Zulfer wrote a check for $100 on account, making it payable to the Mattman Laundry Co. Three subsequent payments of $100 each were made by Zulfer’s personal checks, payable directly to plaintiff, and thereafter no further payments were made. After a rather exhaustive review of the cases in this State, the court concluded that the verbal promise to pay the existing debt of another is not within the statute of frauds if there is a new consideration to support the promise, such as the forebearance to bring suit when the right to sue existed.

Defendant cites Home Nat. Bank of Chicago v. Waterman, 134 Ill. 461, wherein the subject of an original and collateral undertaking is discussed upon the following facts: Sycamore Marsh Harvester Mfg. Co. was indebted to the Home National Bank of Chicago for $20,000, evidenced by two promissory notes of $10,000 each. As collateral to the debt the bank held various farmers’ notes originally taken by the manufacturing company for goods sold to farmers. Various individuals as stockholders of the manufacturing company, owning a large majority of its stock, executed and delivered to the bank their written agreement guaranteeing the bank that if it delivered to the president of the manufacturing company the notes held as collateral for the purpose of collection that the securities would be replaced by others equally acceptable to the bank, similar in character and in amount, or in the alternative that they would pay the company’s debt or any extension thereof which the notes were held to secure. The bank delivered the notes to the president of the manufacturing company. The farmers’ notes were not replaced by others, as contemplated by the agreement, nor was the bank paid the indebtedness referred to in the contract. The bank subsequently recovered judgment against the manufacturing company for the unpaid balance due on the notes, which was never satisfied, and thereafter filed a claim against the estate of James S. Waterman, who in his lifetime was one of the stockholders signing the agreement. Judgment was entered in favor of the executors of the estate, which was affirmed in the Appellate Court for the Second District and then taken to the Supreme Court, which held that the agreement was not intended or understood to work a cancellation or discontinuance of the indebtedness of the manufacturing company to the bank, and, in fact, had no such effect. The court pointed out that the notes executed by the manufacturing company, which the bank held as collateral for its debt, were not surrendered or canceled nor was any credit placed thereon at the time the agreement was made, but were retained by the bank and were from time to time for a period of nearly two years replaced by renewal notes executed by the manufacturing company, thus indicating that the company was, notwithstanding the agreement of the stockholders, regarded and treated as a debtor of the bank for the full amount of its original indebtedness remaining unpaid.

In Brown v. Reinberger, 177 Ill. App. 297, also cited by defendant, plaintiff recovered a judgment against defendant for $444.65, the balance due for goods shipped to Illinois Garter Co. Prior to contracting for the goods, defendant, who was one of the officers and principal stockholders of the company, had a conversation with plaintiff in New York relative to extending the company further credit. There was evidence to the effect that Reinberger told Brown, the plaintiff, that if he would ship the goods “I will see that you are paid in any event for any goods that you may send, and I am worth $5,000.” There was also other evidence bearing upon the subject, which for the purposes of this opinion it is unnecessary to relate. The Appellate Court reversed judgment entered by the trial court with a finding of fact, and held that:

“If the promise referred to an existing account it was unquestionably one to pay the debt of another— that of a stockholder to pay the debt of his corporation, and, therefore, a collateral one. Home Nat. Bank of Chicago v. Waterman’s Estate, 134 Ill. 461.

The claim that the promise was original is not only inconsistent with the facts aforesaid, but with the fact that the credit was given to the corporation and not to defendant, which strongly tends to show that the promise was collateral. Lush v. Throop, 189 Ill. 127. In determining whether a promise is original or collateral, the test is whether credit is given to the persons sought to be charged or to someone else. Lusk v. Throop, supra; Geary v. O’Neil, 73 Ill. 593. We think there can be no doubt that the promise was collateral and was a guaranty of the debt subsisting January 20th, which was paid and that defendant was not personally liable for subsequent accounts.”

While it is true that defendant evidently desired to serve his own interest in persuading plaintiff to allow his money to remain on deposit, nevertheless we believe that the promise was collateral and was a guarantee of the subsisting debt which was never canceled and which plaintiff continued to treat as a primary obligation by withdrawing large sums from the account for approximately 11 months after the promise is alleged to have been made. It was held in the early case of Hite v. Wells, 17 Ill. 88, that the statute of frauds cannot be avoided by the mere show or form of an independent agreement. “It is the substance and force of the contract to which the courts will look in determining whether the contract is an original one, or incidental and collateral to the debt or liability of another.” Under all the circumstances of this case we think that plaintiff allowed his money to remain in the bank by reason of defendant’s assurance that the bank was solvent and his guarantee to make good any loss sustained in the event of the bank’s insolvency. Such an agreement comes within the statute. Accordingly, the judgment of the municipal court is affirmed.

Affirmed.

Scanlan, P. J., and Sullivan, J., concur.