author: Mr. Justice Scaulax

text:
    In re Estate of Katherine E. Swift, Deceased, D. L. Harmon, Executor, Appellant, v. Ray Swift, Appellee.
    Gen. No. 35,685.

      Opinion filed June 28, 1932.
    Rehearing denied July 11, 1932.
    M. D. Dolan, for appellant; B. A. Cummins, of counsel.

      Dauaher & Garriott, for appellee; James J. Dahaher, of counsel.
   Mr. Justice Scaulax

delivered the opinion of the court.

This is an appeal by the executor of the estate of Katherine E. Swift, deceased, from a judgment allowing appellee’s claim for $5,250 against the estate. The case was heard by the court, without a jury.

The claim of the appellee was originally filed in the probate court and upon a hearing in that court was alloAved. The executor appealed and the case was tried de novo in the circuit court, by the court, without a jury. The claim was again allowed and the appellant appealed to this court. (In re Estate of Swift v. Swift [Abst.], 259 Ill. App. 657.) We reversed the judgment and remanded the cause for a new trial upon the ground that the evidence for the appellee failed to make out a prima facie case. The appellant, in that hearing, as in the present one, offered no evidence.

After the cause was remanded to the circuit court the claimant filed an amended statement of claim, alleging, in substance, “that while indebted to him in the sum of $5,850, his brother, Joseph Swift, during his lifetime transferred all his property directly to his wife, Katherine Swift, deceased, herein; that said transfer was a. fraud upon his rights as a creditor; that he notified said Katherine Swift that he would take the necessary action to have this transfer set aside as a fraud upon his rights as such creditor; that the said Katherine Swift agreed to pay him the amount of his claim if he would permit the transfer to go through; that he accepted the offer, took no action to disturb her possession or enjoyment of said property, and that subsequently she made three payments to him, in accordance with this agreement, of $200 each, and that at the time of her death there was a balance due to him of $5,250, for Avhich he filed his claim, ’ ’

The appellant thus states his contentions: “ (1) That the evidence on the second trial with respect to Mrs. Swift’s alleged promise is substantially the same as on the first trial, and that the prior ruling of this Court that a prima facie case was not made out is res judicata; (2) that the evidence is insufficient to establish a legal liability; and (3) that the evidence, if it shows anything, shows that Mrs. Swift’s promise was to pay Joseph Swift’s debt and was made ‘at the time Joe transferred his property,’ which was more than five years before her death, and that therefore the Statutes of Frauds and Limitations are good defenses; and (4) that the Court’s rulings on evidence were erroneous and prejudicial to appellant. ’ ’

As to point (1), it appears that after we reversed and remanded the cause the appellee filed an amended statement of claim substantially different from the original one, and upon the last trial new and material proof was submitted in behalf of the appellee. In our former opinion we stated that ‘ ‘ a careful examination of the evidence discloses that the claimant offered no proof that on or about March 6, 1923, he was an heir of Joseph A. Swift, or that Joseph A. Swift had any real estate in which claimant had any rights, or that claimant waived any interest in the property conveyed by, Joseph A. Swift to Katherine E. Swift, or that he had any interest in said property.” An examination of the evidence in the present record discloses that the appellee, upon the last trial, offered proof that made out a clear prima facie case.

As to point (2), the appellant argues that “an examination of the evidence will show that there is no competent or sufficient evidence to• show that Joseph A. Swift owed Bay Swift $5,850, or any other sum; or that Bay Swift loaned or was ever able to loan $5,850 to Joseph A. Swift; or that Joseph A. Swift had any real estate in which appellee had any rights, or that appellee waived any interest in any property conveyed by Joseph A. Swift to Katherine E. Swift, or that he had any interest in any such property; or that he had or waived any ‘rights as heir’ of Joseph A. Swift; or waived any rights of the reasonable value of $5,250, or that Mrs. Swift ever agreed to pay him any specified amount; or that he had waived or forbore any right or thing of value, or that she made any payment on account.” The evidence of William Begley and John J. Phelan makes out a clear prima facie case that Joseph A. Swift owed the appellee the amount of the claim. The appellant argues that there is not sufficient competent evidence to show that Joseph Swift had any real estate in which appellee had any rights or that the appellee waived any interest in any property conveyed by Joseph Swift to Katherine Swift, or that he had any interest in any such property. The appellee introduced evidence which shows that the real estate described in the inventory of the estate of Katherine E. Swift was conveyed to her by quitclaim deed from Joseph Swift; that Joseph Swift, prior to the time of making the quitclaim deed, had signed certain bonds as surety and that he had been sued, in the municipal court, upon one of the bonds and judgment had been entered against him, and that the bailiff of that court made a return that he could find no property upon which the execution could be levied or judgment satisfied. The evidence further proves that the appellee was a creditor, to the amount of the claim in this cause, of Joseph Swift, his brother, at the time the transfer of the property was made and that Swift made the conveyance to his wife, Katherine, to hinder and delay creditors. This evidence was introduced for the first time on the last trial and was, therefore, not before us when we considered the former appeal. In our former opinion we stated, as one of the reasons for reversing and remanding the judgment, that “Mrs. Swift was apparently a woman of property.” In the last trial there was introduced the inventory filed in her estate, which shows that she died leaving a personal estate of less than $290 and that the only real estate she possessed was the property conveyed to her by Joseph Swift to hinder and delay his creditors, which appellee claims he permitted her to retain because of the agreement stated in the amended statement of claim. When Joseph Swift became a surety upon the appeal bond in the case of Barber v. Vander Ploeg he made oath that the fair, market value of the property in question was $30,000, subject to a $6,000 mortgage. From the testimony of William Begley and John J. Phelan it clearly appears that Joseph Swift acknowledged that he was indebted to the appellee in the amount of his claim and that he made the quitclaim deed to his wife of the property in question because he was having trouble about the bond he had signed, and that to avoid trouble about the bond and “to protect himself and his wife” he made the transfer. It further appears from their testimony that Swift stated that the appellant “was the only real pal he had” and had “saved him (Joseph Swift) when he was sinking,” and that he did not know how the appellee would take the matter of the transferring of the property to his wife, as he still owed the appellee $5,850. It also appears in evidence that the deceased, Mrs. Swift, stated that she had a talk with the appellee about a week or ten days after her husband’s death and that she then told him that she would pay him the money her husband owed him, because the property was transferred to her in spite of the objection of appellee to the transfer, and that she had agreed with appellee to pay the claim in question if he would agree to allow the transfer to stand. There is further testimony that she admitted that her husband owed the appellee the amount of the claim and that she promised to pay it if he did not make any trouble; that she said to the appellee: “I suppose you could make trouble if you want to about this bond, I know you could make trouble, Ray, about this bond,” or about this deed; “Ray, if you don’t make trouble for me I shall certainly pay the debt.” The appellant insists that the evidence, at most, merely shows an agreement to forbear from making trouble, and contends that such an agreement is without consideration. In support of this contention appellant cites Vehon v. Vehon, 70 Ill. App. 40, 41; Funk v. Hossack, 129 Ill. App. 421, and Good v. Krause, 215 Ill. App. 333. In the first of these cases the court held that fear of trouble, where there is no evidence to show that the plaintiff had any right to make trouble, cannot be molded into a consideration for a note. In the second case the court stated (p. 423): “Appellees contend that sufficient consideration is shown by the promise to refrain from putting appellant’s tenants into bankruptcy, and by the promise to be easy on the tenants on their bill for binding twine that fall. As to the promise not to put appellant’s tenants into bankruptcy, we do not regard this a sufficient consideration, for the reason that they were farmers and could not be forced into involuntary bankruptcy. As the consideration must have some value and reality, the assumption of a supposed danger or liability which has no foundation in law or in fact is not a valuable or sufficient consideration. 1 Parsons on Contracts, 437. Appellees surrendered nothing of value, for they had no ground to put appellant’s tenants in bankruptcy, as they were farmers and could not be forced into involuntary bankruptcy, and so in their promise not to do so, they did not forego any privilege or abandon any right. Bates v. Sandy, 27 Ill. App. 552. Fear of trouble with the payee of a note, where there is no evidence to show that such payee had any right to make trouble, cannot be moulded into a consideration. Heaps v. Dunham, 95 Ill. 583; Vehon v. Vehon, 70 Ill. App. 40.” We are satisfied, after a careful examination of the proof, that it sufficiently appears that the appellee had an agreement with the deceased by which he waived his right to have the conveyance to her set aside and she promised, in consideration of her agreement, to pay him the amount due him from Joseph Swift. The argument of the appellant that the evidence does not show that the appellee waived any interest in the property conveyed by Joseph Swift to Katherine Swift is without merit. Under the undisputed evidence Joseph Swift was indebted to the appellee in the amount of his claim, and being so indebted, and over the objection of the appellee, he conveyed the property in question to his wife for the purpose of hindering and delaying creditors. Under the statute, ch. 59, par. 4, Cahill’s Ill. Rev. St., the conveyance was void against creditors. Mrs. Swift had legal title to a piece of real estate, valued at $30,000, which had been conveyed to her by her husband, in fraud of the appellee’s rights as a creditor of Joseph Swift, and the appellee had an. undoubted right to have the transfer set aside. To avoid a setting aside of the conveyance and the expense and trouble of litigation connected with such a proceeding, Mrs. Swift agreed to pay the amount due the appellee from Joseph Swift, and it will be noted that she thereafter made payments in connection with the same. His agreement with the deceased to waive this right was a sufficient consideration for her to agree to pay the appellee the amount of his claim. The appellant contends that if the appellee agreed to allow a fraudulent transfer to be made he would be a party to the fraud and would not have the right to set the transfer aside. It is a sufficient answer to this contention to say that the trial court" was warranted in finding that the appellee objected to the transfer.

The appellant contends that “the alleged promise was a collateral promise to answer for the debt of another,” and therefore “the Statute of Frauds was a good defense to the claim.” It is a sufficient answer to this contention to say that the promise of Mrs. Swift was in the nature of an original undertaking whereby she agreed to pay the debt of her husband upon the agreement of the appellee that he would not commence legal proceedings to set aside the conveyance to her. Such a promise need not necessarily be in writing. (See Wilson v. Bevans, 58 Ill. 232; Reid, Murdoch & Co. v. The Northern Lumber Co., 146 Ill. App. 371.)

The appellant contends that “the claim was barred by the Statute of Limitations. The promise, if any, was made more than five years before Mrs. Swift died. No payment was shown to toll the running of the statute.” We find no merit in this contention. The evidence shows that Mrs. Swift, ten days after the death of her husband, March 6, 1923, acknowledged the obligation and promised the appellee to pay it, and that she made a payment of $200 on account of the same in February, 1924, which was less than three years before she died. Mrs. Swift told McFadden, a witness, when she borrowed $200 from him, that she was borrowing it for the purpose of making a part payment on her indebtedness to the appellee of $5,800. McFadden further testified that he gave Mrs. Swift a check for the $200 and that the indorsements upon the same showed that the appellee had received it. In his reply brief the appellant attempts to raise a new question as to the statute of limitations, not raised in the lower court and not raised in this court in the original brief, and under the rules we need pay no attention to it. The appellant contends that “the court erred in denying Proposition of Law III.” Thirteen propositions of law were tendered to the court by appellant, eleven of which were given; two, numbers one and three, were refused. The appellant makes no complaint that the court erred in refusing proposition of law number one, which held that “the Court holds, as a matter of law, that under the law and evidence the judgment in this case should be for the defendant and against the claimant. ” We do not think the trial court erred in marking proposition of law number three refused, as it was not applicable to the facts of the case. The proposition assumed a party “making no effort to collect it (the debt) until the Statute of Limitations can be pleaded in bar of the action.” In the instant case the appellee made a number of efforts to collect the .debt before the statute had run. Moreover, Mrs. Swift had made a payment on account of the debt before the statute had run. The proposition further assumes a case where the identity, character and amount of the debt sued upon could only be ascertained by implication or presumption. In the instant case the identity, character and amount of the debt sued upon were clearly established by the proof.

Appellant next contends that “the Court erred in his rulings on evidence.” We have carefully considered the various points urged in support of this contention and find them without substantial merit. The appellant contends that the court erred in admitting appellee’s notebook and argues that it was error to admit the same because the suit was not based on a book account and the appellee’s notebook was not a book of accounts but a mere private memorandum. Upon the trial the sole ground urged in support of the objection to the admission of the book was that it was a self-serving statement. It is unnecessary to cite authorities in support of the well known rule that the statement of one or more specific grounds of objection to the introduction of evidence is a waiver of all other grounds of objection. The appellant contends that “the Court erred in permitting Mr. Begley and Mr. Phelan to testify to their conversations with Joseph Swift,” on the ground that Mrs. Swift was not present at the time of the alleged conversations and that declarations of a grantor made after he has parted with his title are not admissible against the grantee or other persons claiming under his grant. Upon the trial the objection raised when the witness Begley was called upon to testify as to the statements was that “it is incompetent and immaterial.” When the witness Phelan was asked to give the conversation he had with Joseph Swift regarding any indebtedness between himself and Bay Swift, the abstract shows, in print, the following: “Mr. Dolan: I object to leading.” Following this, in handwriting, appears the following: “It is hearsay, inadmissible.” Upon referring to the record we find that the objection originally read as follows: “Mr. Dolan: Just a minute, I will object to leading the witness, your Honor.” On the same line, but out of alignment and in smaller type, appears the following: “It is hearsay, inadmissible.” After an examination of the record we feel constrained to say that it would appear as though the words, “It is hearsay, inadmissible,” were added to the bill of exceptions after the abstract had been printed. But assuming that they were not, it is evident that the contention now raised by the appellant, that the alleged statements of Swift amount to declarations of a grantor after conveyance and are therefore inadmissible to impeach his title, was not made or raised in the trial court, and that the appellant, under the record made in the trial court, is not in a position to now raise this contention. The appellant finally contends that “the Court erred in admitting in evidence the schedule, bond, and copies of the Municipal Court proceeding, ’ ’ and argues, in support of this contention, that Mrs. Swift “was not shown to have anything to do with these matters, and they were res inter alios acta and inadmissible against her and her estate.” No such objection was made or suggested at the time of the introduction of the evidence and the appellant will not be heard to make it for the first time in this court. In conclusion, as to the instant contention, we may say that the case was tried by the court, and there is sufficient evidence in the case, to which the appellant raised no question as to competency, to make out a prima facie case for the appellee.

The appellee was a brother of Joseph Swift. In the will of Mrs. Swift, after providing for the payment of a certain debt to Dr. William J. Seigler, she gives the balance of her property to her cousin, John Dunlap. The appellant, while unable to offer any evidence against the claim of appellee, has strenuously and bitterly contested it for a number of years. Whatever may be the feeling of the beneficiary under the will of Mrs. Swift against the appellee, it is undisputed in this record that Mr. Swift regarded him highly and gave expression to his feeling, of appreciation of the aid that the appellee had given him at a time when it appeared that Swift “was.about to sink” under his troubles. Mrs. Swift seems to have entertained like feelings towards the appellee. Three judges have passed upon this claim and all allowed it, and it would seem as though there should be an end of this controversy. See Norkevich v. Atchison, T. & S. Fe Ry. Co., 263 Ill. App. 1, wherein the effect of three verdicts in favor of the same party is discussed at length. The findings by the three judges should certainly be given as much weight as three verdicts.

The judgment of the circuit court is affirmed.

Affirmed.

Keener, P. J., and G-ridley, J., concur.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    Anna Hazelle Joachim, Appellant, v. Clarence A. Joachim, Appellee.
    Gen. No. 35,783.
    Opinion filed June 28, 1932.
    Rehearing denied July 11, 1932.
    Vito B. Cuttone, for appellant.
    Pomeroy & Martin, for appellee.-
   Mr. Justice Scanlan

delivered the opinion of the court.

The complainant (respondent), Anna Hazelle Joachim, has appealed from an order reducing the monthly payments of alimony from $300 per month, the amount provided to be paid by the defendant (petitioner), Clarence A. Joachim, to the complainant, in the original decree entered May 7, 1928, to $150 per month until the further order of the court.

The original decree, granting a divorce to the complainant, also recited, inter alia, that “the Court further finds that pursuant to an agreement heretofore entered between the parties hereto, settling and forever disposing of their financial rights and obligations, due to the marital relations between them, that the defendant shall pay to the complainant the sum of $325 per month from the entry of this decree up to and including the month of September, 1928, and that the defendant shall thereafter pay to the complainant the sum of $300 per month, beginning with the month of October, 1928, and every month thereafter until and up to the time of the complainant’s death or remarriage; . . . that the defendant shall pay to the complainant the further sum of $1,000 in the following-manner : The sum of $500 within forty-five days from the date of the entry of this decree, and the further sum of $500 within ninety days hereof; . . . that the defendant shall within ten days from the entry of this decree turn over and deliver to the complainant, five bonds of the aggregate par value of $5,000, which bonds are described as follows: One Chicago Daily News Par Value $1,000, One Aurora & Elgin Electric Ry. Par Value $1,000, One Northwestern Elevated Co. Par Value $1,000, One Memphis Commercial Appeal Par Value $1,000, One Chicago Rapid Transit Co. Par Value $1,000; . . . that the complainant shall retain forever as her personal property all the household furniture, including rugs, pictures, silver, linen, etc., which are now contained in premises known as 4754 Virginia Avenue, Chicago,' Illinois; . . . that upon the defendant faithfully complying with the herein mentioned payments, then, and in that event, the complainant shall have no further or other rights of dower, or any other claim whatsoever against the defendant, or his estate or income, and the complainant hereby accepts the above provisions in her behalf as a full and .final settlement of her right of dower and alimony against the defendant. . . . It is further Ordered, Adjudged and Decreed that the defendant pay to the complainant the sum of $325 beginning with the signing of this decree, and up to and including the month of September, 1928, and the further sum of $300 per month, beginning with the month of October, 1928, and up to the complainant’s death or remarriage; . . . that the defendant shall pay to the complainant the sum of $1,000 as follows: The sum of $500 within forty-five days from the entry of this decree and the sum of $500 within ninety days hereof; . . . that the defendant shall turn over and deliver to the complainant within ten days hereof, five bonds of the aggregate par value of about $5,000.”

On November 23,1931, the defendant filed a verified petition, under section 18, chapter 40, otherwise known as the Divorce Act, Cahill’s St. ch. 40, 19, which alleges, inter alia, “that no child was born of the marriage of your petitioner with said complainant, and that until August 15, 1931, your petitioner fully complied with said decree and made all payments in conformity therewith; . . . that since the entry of said decree he remarried on May 25, 1929 and is now residing with his wife and minor child . . . and whom your petitioner is obliged to support; . . . that at the time of the entry of said decree ... he was regularly employed and able at said time to comply with the payments required under the terms of said decree, but since which time he has met with financial reverses and has been out of employment since June 3, 1931, and has no prospects of employment at the present time; . . . that he has no income except the interest derived from a few bonds, which he had accumulated during his term of employment, and that he has been obliged to sell at sacrifice prices, from time to time, some of said bonds for the purpose of securing funds with which to maintain himself and family, and pay said alimony; . . . that owing to his unemployment and his depleted financial condition the terms of said decree requiring the payment of $300 per month is not only burdensome, but impossible of performance by your petitioner and which amount is, in the judgment of your petitioner, not necessary or required for the support an.d maintenance of said complainant. . . . Petitioner prays that said decree . . . may be modified whereby your petitioner shall only be required to pay the sum of $50 per month to said complainant . . . .” No answer was filed to the petition, and when the cause came on to be heard on the petition the complainant contended that the chancellor was without jurisdiction to entertain the petition and to modify the decree. At the conclusion of the evidence offered by the defendant the complainant offered no evidence, and again raised the question of jurisdiction and also moved to strike out the evidence offered on behalf of the defendant. The motion to strike was denied and the chancellor then entered- the ordér from which the appeal has been taken.

The complainant contends “the parties to a divorce have the right to enter into an agreement to dispose of and settle all their financial relations, and the parties to this case have so done, and the Court, pursuant to the agreement of the parties, embodied in its decree the terms of the financial settlement between them. Therefore, the parties to the decree are now prevented from changing the terms of the contract which was freely and voluntarily entered into at the time the contract was executed”; that “the Court had no jurisdiction to hear the petition of the defendant, hear evidence thereon and determine the issues, and modify the alimony terms entered by agreement of the parties and embodied in the original divorce decree,” and that section 18 of the Divorce Act, Cahill’s St. ch. 40, ¶ 19, does not give a chancellor jurisdiction to entertain a petition like the instant one. This contention has been settled, and adversely to complainant, in Herrick v. Herrick, 319 Ill. 146, where, in passing upon a like contention, the court said that the fact that a decree for divorce incorporates a prior agreement of the parties as to alimony does not preclude the court from modifying it under section 18 of the Divorce Act, -upon application of either party, when a change of circumstances justifies the modification, as the agreement, when made a part of the decree, loses its contractual nature and becomes an order for alimony, even though the agreement is termed in the decree “a provision in lieu of alimony.” (See also Maginnis v. Maginnis, 323 Ill. 113, 118; Plotke v. Plotke, 177 Ill. App. 344.) In support of her contention complainant cites Smith v. Smith, 334 Ill. 370. In that case the court said (p. 382): “It is the settled construction of section 18 that it authorizes the change of a decree for alimony based only upon a changed condition or betterment of property qualifications after the decree to meet additional needs of one entitled to alimony arising after the decree. This is the only ground justifying or authorizing a re-adjustment of alimony by supplemental decree. (Cole v. Cole, 142 Ill. 19; Herrick v. Herrick, 319 id. 146.) The criterion is not whether the decree was right when entered, because all presumptions are in its favor, but the question is, Has the necessity of the petitioner changed since the rendition of the decree, and has the ability of the husband to contribute to it also changed? (Craig v. Craig, 163 Ill. 176.) The first decree is res judicata as to previous conditions authorizing alimony in the decree. (Cole v. Cole, supra.)From the foregoing quotation it is clear that the court expressly approves the ruling in Herrick v. Herrick, but because the petition in the Smith case made charges of fraud in respect to the procurement of the agreement in regard to alimony, embodied in the decree, and sought to have the same reviewed by petition under section 18, the court held that such charges were not subject to review under that section, and that if the petitioner thought that she was entitled to relief from the agreement as to alimony, embodied in the decree, she should seek relief under the general equity powers of the court.

The complainant contends that “the evidence submitted does not justify and sustain the findings of the Court.” She did not file an answer to the petition and did not see fit to offer any evidence in rebuttal of the defendant’s testimony, and it is evident from the record that she relied upon her contention that the chancellor was without jurisdiction to entertain the petition. Assuming, however, that she has a right to raise the instant contention, we may say, in reference thereto, that we are not prepared to hold that the chancellor was not warranted, under the evidence, in making the modifications in question.

The order of the superior court of Cook county is affirmed.

Affirmed.

Keener, P. J., and Gridley, J:, concur.


author: Mr. Presiding Justice McSurely

text:
    C. & E. Marshall Company, Plaintiff in Error, v. Irving M. Leon, Defendant in Error.
    Gen. No. 35,991.

      Opinion filed July 13, 1932.
    Goldman, Allshouse & Healy, for plaintiff in error; Robert G. Dreffein and M. M. Loman, of counsel.
    Irving S. Berman, for defendant in error.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit to recover an indebtedness of $70 for goods and merchandise sold by it to the defendant. It also filed an affidavit for an attachment in aid, in which J. M. Braude and Emanuel Maltz Company were made garnishees. After a hearing the court quashed the writ in attachment and discharged the garnishees but entered judgment against the defendant on plaintiff’s claim for $70. Plaintiff, by this writ of error, questions the holding of the court in the'attachment suit.

The grounds for the attachment as stated in plaintiff’s affidavit were, that the defendant had within two years last past fraudulently conveyed his effects, or part thereof, and fraudulently concealed or disposed of his property so as to hinder or delay his creditors'. Defendant filed a traverse to these allegations.

In February, 1931, defendant was engaged in the retail jewelry business in Chicago and was insolvent, and desired to make a composition with his creditors by paying them 25 per cent of their respective claims. To secure funds for this purpose he entered into an agreement with the Emanuel Maltz Company to sell to it his stock of merchandise, for which the Maltz Company agreed to advance a sum equal to 25 per cent of the claims of the creditors; not, however, in excess of $1,500. It was agreed that between the date of this agreement and the final consummation of the sale, defendant should have the right to sell the merchandise and apply the net proceeds on account of the amount due from the Maltz Company to the creditors. In the event “fill-in” merchandise was necessary, defendant agreed to purchase the same from the Maltz Company. It was agreed that upon receipt of a bill of sale the Maltz Company should conduct an auction sale of the merchandise on the premises and the proceeds from the sale were to be applied, first, to the payment of “fill-in” merchandise; second, to reimburse the Maltz Company for money advanced by it to pay 25 per cent of the creditors’ claims; third, to defray the expenses of the sale; and fourth^ pay defendant 25 per cent of the net profits from said sale.

Upon the execution of this agreement the Maltz Company delivered to J. M. Braude, as escrowee, its check for $1,500, which was paid. Braude gave notice to the plaintiff that the Maltz Company was about to purchase the merchandise and business conducted by defendant and that the sale would be consummated after the expiration of five days from date; that the notice was given in compliance with the Bulk Sales Act, Cahill’s St. ch. 121a, ¶ 1 et seq., and the consideration of the sale was the advancing by the Maltz Company of 25 per cent of each of the claims against defendant. A similar notice was sent to all the creditors, except to some who had previously agreed in writing and who had accepted a composition of 25 per cent of their respective claims in full. The 25 per cent was to be paid to creditors regardless of whether or not a complete satisfaction of their respective claims was given. Certain creditors did accept this composition but all creditors were not required to join in the composition in order to receive 25 per cent. Plaintiff was one of the creditors who did not agree to the composition.

It is well established that the only authority for the issuance of an attachment writ is the existence of some of the statutory grounds stated in Cahill’s St. ch. 11, ¶ 1. The record fails to show the existence of any grounds for attachment mentioned in the statute.

The Bulk Sales Law, Cahill’s St. ch. 121a, ¶ 1, provides that the vendee shall, in good faith, at least five days before the consummation of such sale, receive from the vendor a written statement under oath of the vendor, containing a full and complete list of the creditors of the vendor, their addresses and the amounts owing, and that the vendee, at least five days before taking possession, cause to be delivered to each creditor a notice in writing of the proposed purchase of the goods and chattels, the price, terms and conditions.

But plaintiff contends that during the five-day period referred to in the statute .it had the right to attach. We cannot agree with this. Had the legislature intended an attachment to lie during the five-day period in which the sale in bulk is in suspense, it could have been so stated in the act. To hold with plaintiff on this point would mean that any creditor who desired to collect his claim could prevent a sale under the Bulk Sales Act, although it had been fully followed, by merely filing an attachment during the five-day period. Such a result should not be entertained for a creditor has no right to control an individual in the sale of his merchandise in the absence of fraud. The cases cited by plaintiff to sustain its contention are not in point.

Plaintiff contends in this court that the Bulk Sales Act was not complied with in that notice had not been sent to all the creditors of defendant. We might say that even if this were so, “granting writs of attachment in cases where only legal or constructive fraud is shown is outside of the general scheme and purpose of the Attachment Law.” Weare Commission Co. v. Druley, 156 Ill. 25. To the same effect is Wadsworth v. Laurie, 164 Ill. 42. See also Nelson & Co. v. Leiter, 190 Ill. 414; United Paper & Trading Co. v. Allen, 222 Ill. App. 261, holding that a fraud in law, or constructive fraud, is not ground for attachment. A failure to comply with the terms of the Bulk Sales Act does not render a sale void, but voidable only as to creditors. Wende v. Zimmer, 189 Ill. App. 490.

But even if this were not the law, the record shows that notice was sent to all the creditors of defendant, including plaintiff, with the exception of those actually participating in the sale and who had in writing previously agreed to the composition and waived notice of the sale.

This was a compliance with the statute. The purpose of the act is to protect creditors by giving them notice of the proposed sale so that they may take such action as they desire. The rights of a creditor who has been given the required notice are not prejudiced by the fact, if it should be the fact, that another creditor has not received the notice. McConnell v. Brace-Beluche & Co., 264 Ill. App. 72; Ritter v. Wray, 45 Pa. Super. Ct. 440.

Braude represented all the creditors who participated in or had knowledge of the sale and accepted the composition. He testified that he received their consents to this sale. Under such circumstances they cannot say that the sale was fraudulent and void simply because the notice did not comply with the statute. Palo Sav. Bank v. Cameron, 184 Iowa 183.

The sale complied with all the requirements of the Bulk Sales Act and the proceeds derived therefrom went to the creditors in equal pro rata amounts. Such a sale must be considered ás being made in good faith and free from any fraudulent character.

We hold that the record fails to show any grounds for the issuance of the attachment writ and the decision quashing the same was proper, and the judgment of the municipal court is affirmed.

Affirmed.

Hatchett, J., concurs.

Hr. Justice O’Cohhor took no part in the consideration of this case.


text:
    Arthur B. Steffan, Appellee, v. Bankers Life Company of Iowa, Appellant.
    Gen. No. 36,045.

      Opinion filed July 13, 1932.
    Bull, Lytton & Olson, for appellant.
    John Gr. Riordan, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Defendant appeals from a judgment of $150 entered upon trial by the court of an action by plaintiff to recover benefits under a total and permanent disability clause of a life insurance policy. The defense is that plaintiff was not totally and permanently disabled; that defendant would be obligated only if such condition existed when it received proof of such disability, and that when proof was made such disability did not exist; that in any event plaintiff would not be entitled to payment from the date of the accident.

The policy issued by defendant was a life insurance policy with a provision for benefits in the event the assured was permanently disabled; it is not the ordinary accident policy. It provides that,

“If the insured becomes totally and permanently disabled as herein provided . . . from any cause originating after the date hereof the company, upon receipt of due proof of such disability, and that it has existed continuously for ninety days, will grant the following benefits to the insured: Will waive payment of any premium falling due thereafter and while such disability continues. Will pay 1 per cent of the amount of the policy (not including dividend additions or accumulations) and a like sum on the same day of each month thereafter, during the continuance of such disability, but in no event beyond the maturity of the policy by death or endowment.”

Total and permanent disability are defined in the policy:

“Disability shall be deemed total when the insured is disabled to such an extent that he is thereby wholly prevented from performing any work or engaging in any occupation whatsoever fdr remuneration or profit.

“Disability shall be and is only to be considered permanent when the insured has been so totally disabled, continuously, for a period of ninety days. ’ ’

Plaintiff was employed as a railroad switchman, sometimes as conductor and brakeman. January 6, 1931, while engaged in his work, he sustained injuries consisting of a cut and fracture of the little finger and a fracture of the next finger of the right hand; he received immediate medical attention. March 21, 1931, a doctor found that the cut and fracture had healed. Plaintiff returned to his work April 7, which was the 91st day after he was injured. April 9, a doctor examined his hand and testified that at that time there was about a 25 per cent limitation in the hand, which was about the same condition present at the prior examination on March 21. Plaintiff testified that his hand looked and felt about the same a week before he went to work as it did the day he returned to work. April 6, plaintiff notified defendant he had been injured, requesting* a blank form of claim; he wrote again April 13th and received the form which he filled out and signed under date of April 13, and returned it to defendant.

There is in evidence not only the proof of claim in plaintiff’s handwriting, but also two letters written by him in longhand. Defendant very pertinently argues that the very excellent penmanship of these writings indicates that the injury to plaintiff’s hand had passed away.

Plaintiff makes no claim for benefits on account of disability after 90 days immediately following the accident. The judgment was at the rate of $50 a month for these first 90 days.

The record clearly shows that plaintiff was not totally and permanently disabled. We may concede, with plaintiff’s counsel, that the policy does not mean that plaintiff should be completely helpless, but it does mean, as stated in a case cited by him, “total inability to perform manual labor to an extent necessary to entitle him to receive earnings is what is meant.” Grand Lodge Brotherhood of Locomotive Firemen v. Orrell, 206 Ill. 208. The policy defines total disability to be when the insured is disabled to such an extent that he is prevented from performing any work or engaging in any occupation whatsoever for remuneration or profit. Two facts negative the idea of plaintiff’s total and permanent disability: (1) His return to his usual labor on the day following the expiration of the 90 days; (2) the excellence of his handwriting. In Supreme Tent of Knights of Maccabees v. King, 79 Ill. App. 145, it was held that total disability means total disability for all kinds of business. To the same effect is Buckner v. Jefferson Standard Life Ins. Co., 172 N. C. 762. It would call for some exercise of the imagination to say that the comparatively slight injury to the fingers of plaintiff’s hand caused total and permanent disability.

Defendant would incur no liability until it had received due proof of such disability and that it had existed continuously for 90 days. When plaintiff presented his proof on April 13 he was already engaged in his usual employment. How, then, could it be said that there was proof of total and permanent disability at this time? As was said in Mackenzie v. Equitable Life Assur. Soc., 248 N. T. S. 413, where a similar clause was under consideration, “The mere fact that the plaintiff was totally disabled for a period of three months will not entitle him to compensation if the total disability was not present at the time of the notification.” In this case the court considered the 90-day provision as creating a presumption for the benefit of the assured, and, that “In a case where an assured presented a claim at the expiration of three months and the total disability was present, but it could not be determined whether it would be permanent or not,” the presumption of permanency would continue until rebutted by the company; and the opinion continues: “However, the distinction arising in the case at bar is that the total disability was not present at the time the plaintiff presented his claim to the defendant, and therefore there could not be any presumption of permanency.” This opinion was rendered in a case where it was not disputed that plaintiff was totally disabled for a period of over six months.

In Mid-Continent Life Ins. Co. v. Walker, 128 Okla. 75, 260 Pac. 1109, the distinction was pointed out between the provisions of- an accident policy and a life insurance policy, and it was there held that liability did not attach from the date of the accident but six months after the receipt of proof of injury as provided in-the policy.

In the recent case of Bergholm v. Peoria Life Ins. Co., 284 U. S. 489, the court had under consideration the language of a policy very similar to the one before us, and it was held: “Here the obligation of the company does not rest upon the existence of the disability; but it is the receipt by the Company of proof of the disability which is definitely made a condition precedent to an assumption by it of payment of the premiums becoming due after the receipt of such proof.” The court also said, with reference to the rule that in case of an ambiguity an insurance policy and its provisions must be construed most favorably to the assured, that this rule “furnishes no warrant for avoiding hard consequences by importing into a contract an ambiguity which otherwise would not exist, or, under the guise of construction, by forcing from plain words unusual and unnatural meanings. ’ ’ It was held to the same effect in Brams v. New York Life Ins. Co., 299 Pa. 11; Wick v. Western Union Life Ins. Co., 104 Wash. 129.

The company agreed, upon receipt of due proof of total disability, to waive the subsequent payment of premiums, or to pay one per cent of the amount of the policy, which would be $50. It apparently was the theory of the trial court that defendant’s liability became retroactive and that defendant was liable from the date of the injury and hence gave plaintiff three months’ benefits, or judgment for $150. Even if plaintiff had been proven totally and permanently disabled, which was not proven, he would not be entitled to a first payment of more than $50, as there was no liability imposed on defendant prior to the receipt of proof of total and permanent disability. Perlman v. New York Life Ins. Co., 254 N. Y. S. 646.

For the reasons indicated, and especially on the ground that at the time proof was made plaintiff was not suffering from total and permanent disability because of the injury, we hold that there was no liability upon the defendant and that the judgment was erroneously entered. It will therefore be reversed, with a finding of fact.

jReversed with a finding of fact.

Hatchett, J., concurs.

Mr. Justice O’Cohstor took no part in the consideration of this case.

Finding of fact: We find that defendant was not liable under its policy of insurance to plaintiff because of the injury described in his statement of claim.


text:
    Joseph Rosenfeld, Trading as Rosenfeld Machinery Company, Appellee, v. Inland Iron Works, Inc., Appellant.
    Gen. No. 36,121.
    Opinion filed July 13, 1932.
    Rehearing denied July 25, 1932.
    John Taylor Booz, for appellant.

      Rubenstein & Rubenstein, for appellee; Walter Monarch, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit to recover on two promissory notes signed by the defendant by W. W. Huggins, treasurer, and upon hearing by the court had judgment for $438.60, from which defendant appeals. The only defense presented is that the treasurer alone had no authority to execute the notes.

Two complete answers can be made to this" contention. By the defendant’s second amended affidavit of defense, a by-law of the defendant corporation was pleaded. This provides that the treasurer “either alone or jointly with the President or such other officer as may be designated by the Board of Directors shall sign all checks and other instruments drawn on or payable out of the funds of the corporation, and all bills, notes and other evidences of indebtedness of the corporation, not requiring the seal of the corporation. ’ ’ Defendant presents a resolution adopted by it, to the effect that notes should be executed in the name of the corporation by its treasurer and countersigned by its president or vice president. Where a by-law is inconsistent with a resolution of a board of directors the by-law must prevail. The by-laws of a corporation are, in effect, its constitution. A resolution is in the nature of a statute, designed to provide for a particular contingency, and cannot prevail against a bylaw. 1 Fletcher Cyc. Law of Private Corporations, sec. 481, page 977. Haller Sign Works v. Physical Culture Training School, 249 Ill. 436.

The execution of the notes was ratified by the defendant corporation. Plaintiff testified that the notes were received from the defendant as part payment for merchandise sold it. A letter was written by R. H. Thomas, president of the defendant company, to plaintiff, the burden of which is a request for time in which defendant might pay the notes. The letter contains such sentences as these: “The pressing of the suit can only result in bankruptcy for the Inland Iron Works.” It importuned the plaintiff to give six months or so, in which time “it seems certain that your claim would be paid in full”; that if times were good, “the officers of the Inland Iron Works might personally assist the Company by drawing some of their funds” from another source.

Eight months had elapsed from the signing of the notes before the suit was commenced, yet at no time was there any act of disaffirmance or repudiation by the corporation of defendant’s liability. If defendant did not recognize the authority of the treasurer to sign these notes it was its duty to notify plaintiff of this fact and to return to him the merchandise for which they were given in payment. 3 Fletcher Cyc. Law of Private Corporations, sec. 2087, page 3261. Domestic Building Ass’n v. Guadiano, 195 Ill. 222; Darst v. Gale, 83 Ill. 136. Under the circumstances presented by the record, the defendant must be held to have ratified the act of the treasurer in signing the corporation’s name to the notes.

Defendant asserts that the judgment is too large by 26 cents. Lex non curat de minimis.

The judgment is affirmed.

Affirmed.

Hatchett, J., concurs.

Mr. Justice 0 ’Connob took no part in the consideration of this case.


author: Mr. Presiding Justice Barry

text:
    Logan E. Hungate, Appellant, v. New York Life Insurance Company, Appellee.

      Opinion filed February 1, 1932.
    Rehearing denied February 22, 1932.
    Moses Pulverman and Tilman B. Cantrell, for appellant.
    Layman & Johnson and Scott, MacLeish & Falk, for appellee; Homer H. Cooper and Wendell J. Brown, of counsel.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

An agent of appellee, on July 31, 1930, procured the application of appellant’s wife for an insurance policy of $2,000 on her life, in which policy appellant was to be the beneficiary. At that time she paid $10 to the agent to apply on the premium and was examined by appellee’s medical examiner. Appellee approved the application and the examiner’s report, issued the policy on August 5, 1930, and sent it to its agent for delivery upon payment of $44.98, the balance of the first premium. The agent delivered the policy on August 13, 1930, and collected the balance of the premium. One month later the annual premium, due September 30, - 1930, was paid. The insured died October 2, 1930 and appellee denied liability. Appellant sued and at the close of the evidence each party asked for a directed verdict. Appellant’s motion was denied and there was a directed verdict in favor of appellee, upon which judgment was rendered.

The insured consulted a physician on August 12, 1930, the day before the policy was delivered. Appellee insists that the judgment should be affirmed because the policy never became effective. That contention is based on the provision of the application which reads: “It is mutually agreed as follows: (1) that the insurance hereby applied for shall not take effect unless and until the policy is delivered to and received by the applicant and the first premium thereon paid in full during his lifetime, and then only if the applicant has not consulted or been treated by any physician since his medical examination.” The application further provides that if all of the first premium is paid to the agent at the time the application is made and a certain receipt is given by the agent the insurance shall take effect and be in force from the date of the application whether the policy be delivered or not.

The provision above quoted is a part of the printed form of the application. The application contained written provisions which were in direct conflict with the one quoted. In construing a contract drawn upon a printed form by filling in blank spaces with writing, the written part will, in case of conflict, control. City of Chicago v. Weir, 165 Ill. 582; 14 R. C. L. 933. In answer to the question as to how the premiums should be payable, the agent who procured and filled out the application, wrote therein the following: ‘ Consideration to October 1, then annual.” In answer to the question as to what should be the date of the policy, he wrote “October 1st- — 1930.” The application contained a blank space for additions or amendments to be made by the Home Office. It also contained a clause to the effect that if the applicant accepted the policy she would thereby ratify any additions or amendments inserted in the blank space by appellee. Appellee inserted in the blank space the following: “Written with proportionate premium from the 30 day of March, 1930 to the 30 day of September, 1930.”

That insertion clearly shows that appellee understood the application to mean that the insured was to have insurance in full force and effect from March 30, 1930 and the premium charged and paid was for insurance from that date to September 30, 1930. Appellee' then issued the policy which expressly provides, without qualification, that “this policy takes effect as of the thirtieth day of March Nineteen Hundred and Thirty. ’ ’ Then, according to that provision the policy was in effect from March 30, 1930, while the provision in the application is that the insurance would never take effect if the insured had consulted a physician since her medical examination. There is a direct conflict between the application and the express language of the policy. Where there are conflicting clauses in the contract, the one which affords the most protection to the insured will control. Monahan v. Fidelity Mut. Life Ins. Co., 242 Ill. 488; Nalty v. Federal Casualty Co., 245 Ill. App. 180; Mutual Life Ins. Co. v. Hurni Packing Co., 263 U. S. 167.

When appellee delivered the policy containing the provision that it was to take effect as of March 30, 1930, and collected premium from that date, it should not be heard to say that the policy was never in effect. How could it be in effect as of that date under its terms and the insurance applied for not in effect under the provisions in the application? It has been held that if any length of time elapses between the making of the application and the issuing of the policy, it is the duty of the insurer to make inquiry when the policy is delivered as to the condition of the health of the insured, and if it fails to do so the delivery is conclusive against the insurer as to the completion of the contract. American Trust Co. v. Life Ins. Co. of Virginia, 173 N. C. 558, 92 S. E. 706; Grier v. Mutual Life Ins. Co., 132 N. C. 542, 546, 44 S. E. 28; National Life Ins. Co. v. Grady, 185 N. C. 348, 117 S. E. 289. The contracts in those cases contained provisions that they should not take effect until the first premium was paid, nor unless on the date of payment thereof the insured was alive and in sound health.

In the case at bar appellee construed the provision in the application to mean that before the actual delivery of the policy it should make inquiry as to whether the applicant had consulted a physician since her medical examination and if it was found that she had done so, the delivery of the policy would be withheld. This is apparent from the fact that when appellee sent the policy to the agent for delivery he was instructed that he should not deliver it if the applicant had consulted a physician since her medical examination, and if she had he should return the policy to appellee. The ag*ent had been in the employ of appellee for six years and he says he knew the terms of the application and the policy. Before he delivered the policy he saw the applicant and her husband but did not ask either of them about her health or whether she had consulted a physician. Under the cases above cited it was the duty of appellee to make inquiry, and having failed to do so the delivery should be held conclusive against appellee as to the completion of the contract. The agent further said that as far as he knew at that time, the delivery of the policy closed the transaction. If that was his conclusion after six years ’ experience as agent for appellee why should the applicant, a woman without experience in such matters, be expected to know that it was her duty to inform the agent, without being interrogated, that she had consulted a physician? There is no language in the application or the policy that says she should do so.

Appellee contends that the provision in the application created a condition precedent and that appellant cannot recover because the applicant consulted a physician. Weber v. Prudential Ins. Co., 284 Ill. 326; Ellis v. State Mut. Life Assur. Co., 206 Ill. App. 226; Hartsock v. Kaskaskia Livestock Ins. Co., 223 Ill. App. 433, were cited in support of that contention. In all of those cases the applicants died before the policies were actually delivered and for that reason are not applicable to the situation here presented. There are other Appellate Court cases which take the same view even though the policies were delivered but they are based upon the cases last above cited. To so construe the provision in question would render it very unreasonable. The mere fact that an applicant consulted a physician about the most trivial ailment would be-sufficient to prevent the policy from going into effect unless the insurer was advised of the fact. The applicant might pay the premium for several years thinking she had insurance but when she died the beneficiary would find that the contract never became effective. Even an incontestable clause would not apply if a policy never became a valid and binding contract. Such a construction would be abhorrent to reason and justice.

Insurance contracts frequently provide that the policy shall not be in effect unless when delivered the insured is in sound health. Such a provision has been held to merely mean that the applicant has not contracted a disease between the date of the application and the issuance of the policy; Johnson v. Royal Neighbors of America, 253 Ill. 570; Western & Southern Life Ins. Co. v. Davis, 141 Ky. 358, 132 S. W. 410; Modern Woodmen of America v. Atkinson, 153 Ky. 527, 155 S. W. 1135; Chinery v. Metropolitan Life Ins. Co., 182 N. Y. S. 555. Under that rule of law the provision in question in the case at bar can very well be construed to merely mean that the applicant has not consulted a physician in regard to a disease contracted since the making of her application and before the delivery of the policy. The application was made July 31, 1930, the physician was consulted August 12 and the policy was delivered on the following day. When the physician was consulted on August 12, he found the applicant had a well developed tumor which later turned out to be an ovarian cancer and her death resulted therefrom. There is no evidence that her ailment was contracted after the making of the application and before the delivery of the policy. It is a fair and reasonable inference from the evidence that the disease for which she consulted the physician existed prior to the making of the application for insurance. That being true, the provision in the application was not violated under the cases last above cited and it presents no defense to the action. Appellee makes no claim that the same facts constitute a defense under any other provision of the contract nor does it intimate that the applicant was guilty of any fraud or false representations.

When both parties moved the court for a directed verdict it was equivalent to the submission of the case to the court for trial without a jury. The judgment is reversed and the cause remanded with directions to render judgment for appellant for the amount of the policy with interest thereon.

Reversed and remanded with directions.

The clerk will insert in the judgment the following: “The Court finds that the policy in question was a valid and binding contract and was in full force and effect at the time of the death of the insured and that appellant is entitled to recover the amount of the policy with interest thereon.”


text:
    Carl Siegel, Appellee, v. City of Belleville et al., Appellants.
    Opinion filed June 4, 1931.
    Arthur W. Peth and Preston K. Johnson, for appellants.
    Farmer & Klingel, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee filed a bill to enjoin appellants from completing the purchase of a fire engine. It avers that the city had fourteen aldermen, seven of whom voted for and seven against the proposal to make the purchase, and that the mayor illegally voted in favor of the proposition and declared it had carried. It also avers that the city council had made no appropriation for the purchase of a fire apparatus although it did make appropriations as follows: “Fire department, $34,000; Fire department, 2 mill tax, $36,000; Fire department, foreign fire insurance, $13,500.” It then avers that said appropriations were too general and uncertain to include the purchase in question and were void, etc. A demurrer to the bill was overruled, appellants abided by their demurrer and, a perpetual injunction was decreed in accordance with the prayer of the bill.

Section 6 of article II of the Cities and Villages Act, Cabill’s St. ch. 24, If 20, expressly provides that the mayor shall preside at all meetings of the city council, but shall not vote except in case of a tie, when he shall give the casting vote. Appellee contends that an implied limitation of the mayor’s right to vote in case of a tie is found in section 13, of article III of the same Act, Cahill’s St. ch. 24, if 44. That section requires the concurrence of a majority of all members elected in the city council for tbe passage of every ordihance of every kind and for the passage of every proposition creating a liability against the city or appropriating its money. If appellee’s contention is sound, no ordinance of any kind can be passed by the city council if the whole number of aldermen elected is equally - divided on the question. That must be true because the section was not intended to limit the requirement of a majority vote to ordinances or propositions creating a liability ór appropriating money. McLean v. City of East St. Louis, 222 Ill. 510, 514.

By section 6 of article II, the legislature gave the mayor of the city the absolute right to vote in case of a tie and there is no limitation in the statute of this casting vote to any particular kind or class of business. We are of the opinion that said section 13 cannot be construed, properly, as a limitation upon the right of the mayor to vote in case of a tie. We would not be warranted in imposing a limitation which the legislature did not see fit to insert in the statute. City of Carrollton v. Clark, 21 Ill. App. 74, and many cases cited in the note in 40 A. L. R. 814, 815.

The City of Belleville was authorized to levy a two-mill tax for fire protection. Cahill’s St. ch. 24, ¶ 1023 (1). It was also authorized to collect 2 per cent on fire insurance policies issued by foreign insurance companies and the money so collected was for the maintenance, use and benefit of the fire department. Cahill’s Ill. St. ch. 24, ¶ 1036. It seems to us that when the city made the appropriations: “Fire department, two mill tax, $36,000; Fire department, foreign fire insurance, $13,500,” it was the same as if the appropriations had read: “Fire department, for fire protection, $36,000; Fire department, maintenance, use and benefit of fire department, $13,500.” It is not necessary for the city appropriation or tax levy ordinance to specify every item which the city may pay out upon a particular appropriation, and a single appropriate general purpose is sufficient to include every expenditure required for that purpose although there may be many items. People v. Eastern I. & M. R. Co., 335 Ill. 245; People v. Chicago & Eastern I. R. Co., 336 Ill. 506. It seems to us that appropriations for fire protection and for maintenance, use and benefit of the fire department would necessarily include the purchase of a fire engine. The appropriations were sufficiently specific to meet the requirements of Cahill’s Ill. St. ch. 24, ¶ 92.

Ordinarily we would simply reverse the decree with directions to overrule the demurrer. In this case the only relief prayed in the bill is for a perpetual injunction. If the trial court had sustained the demurrer it would have dismissed the bill for want of equity. Goddard v. Chicago & N. W. R. Co., 202 Ill. 362; Spies v. Byers, 287 Ill. 627. The bill is not a defective statement of a good cause of action and for that reason the decree is reversed and the cause remanded with directions to sustain the demurrer to the bill and to dismiss the bill for want of equity at appellee’s costs. This will enable appellee to present the matter to the Supreme Court without the necessity of first going back to the trial court.

Reversed and remanded with directions.


text:
    J. S. Young, Jr., Appellee, v. L. E. McKittrick, Appellant.

      Opinion filed June 9, 1932.
    Rehearing denied July 27, 1932.
    M. J. White, for appellant.
    Sumner & Lewis, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

The parties and others are cotenants of a certain leasehold. Appellee drilled an oil well upon the premises, without procuring the consent of appellant. The well did not produce oil in paying quantities. Appellee sued to recover from appellant a proportionate share of the expenses incurred in the drilling of the well, and recovered a judgment.

Appellee contends that because the bill of exceptions does not show that exceptions were taken to the finding and judgment of the court the question as to the sufficiency of the evidence to support the judgment has not been properly preserved and cannot be considered. Under section 81 of the Practice Act, Cahill’s St. ch. 110, ¶ 81, it is our duty to determine the sufficiency of the evidence to support the findings and judgment of the court even if no exceptions were taken thereto. Pittsburgh, C., C. & St. L. Ry. Co. v. Chicago City Ry. Co., 300 Ill. 162; People v. Upson, 338 Ill. 145.

Appellee does not claim that he had any agreement with appellant in regard to the drilling of the well. The work was done without any authority from appellant. An action of assumpsit cannot be maintained against a cotenant to recover any part of the cost of improvements, in the absence of an express assent on his part or of such circumstances or dealings between the parties as will convince the court that an understanding existed to the effect that the expenses were to be repaid. 7 R. C. L. 891. For improvements made by a cotenant he cannot maintain any action which will result in a personal judgment against any of his fellow tenants, unless he can prove an express promise to pay him,, or such a state of circumstances that a promise should be implied; but it is a rule that such a promise will not be implied merely from the making; of the improvements or from their utility or necessity. 7 R. C. L. 840. A man cannot compel his cotenants to co-operate with him in the improvement of the common property, nor can he, by a voluntary expenditure without authority from them, constitute himself their creditor. 7 R. C. L. 874.

A cotenant, who develops a mine without the consent of his cotenants, cannot demand from such cotenants contribution or remuneration for expenses incurred in prospecting or developing the common property. He must get contribution, if at all, from the profits realized from the property. 18 R. C. L. 1197; Stickley v. Mulrooney, 36 Colo. 242, 87 Pac. 547; Wolfe v. Childs, 42 Colo. 121, 94 Pac. 292. While a cotenant of a mining claim, who without the consent of his cotenants, incurs expense in prospecting, cannot demand contribution from them, yet he may, when called upon to account for profits, set off the cost of the improvements which were necessary and enhanced the value of the common property. 6 R. C. L. 1050.

A tenant in common cannot make improvements on the common property and charge his cotenants even ratably with their value. Chambers v. Jones, 72 Ill. 275. But he may in a proper case recover a proportionate amount of the increased value of the premises caused by the improvements but not the cost thereof. Leininger v. Reichle, 317 Ill. 625-639; Cooler v. Dearborn, 115 Ill. 509.

Appellee insists that he proved that a custom or usage existed to the effect that if one cotenant drilled a well on the common property without the consent of his cotenants, he could recover a proportionate share of the expenses from each of his cotenants. The alleged custom is contrary to established law and is in conflict with the general or public policy of the law as will be seen from the authorities above cited. That being true the alleged custom or usage has no binding force. 27 R. C. L. 164.

For a time after the well was drilled it produced 10 or 15 barrels of oil per day. Before the oil could be sold all of the cotenants were required to sign a power of attorney and appellee contends that appellant is liable because he signed that power of attorney. The power of attorney was not offered in evidence. Appellee testified that it authorized him to sell the oil and apply the proceeds on the expenses he had incurred in drilling the well and that the proceeds were so applied. He never realized enough from the sale of the oil to pay such expenses. Under the authorities above cited the power of attorney gave appellee no greater rights than he had under the law without such a power. He was only entitled to be reimbursed from the proceeds of the oil produced by the well. Appellee was not entitled to recover, and the judgment is reversed.

Reversed.

The clerk will insert in the judgment the following: “The court finds that appellant was not indebted to appellee; that the well was drilled by appellee without any authority from appellant, his cotenant.”


author: Mr. Justice Jett

text:
    The Ohio Power Shovel Company, Appellee, v. Frank G. Bond et al., Appellants.
    Gen. No. 8,440.

      Opinion filed July 22, 1932.
    M. D. Morahn and Hunt & Hunt, for appellants.
    Frankel & Bloom, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

Appellee, the Ohio Power Shovel Company, filed its suit in replevin against Frank Gr. Bond, Stewart State Bank, a corporation, and others, appellants, in the circuit court of Putnam county to recover a certain power shovel and equipment therefor.

The declaration consisted of three counts. The first count charged that the defendants unjustly took the goods and chattels of the plaintiff and unjustly detained them. The second count contained the same allegations, but in addition thereto contained a description of the goods and chattels, namely, one Standard Lima 1% yard gasoline shovel, 21 foot boom, 17 foot dipper handle, 1^4 cubic yard dipper, power boom hoist, etc. The third count charged that the defendants unjustly detained the goods and chattels of the plaintiff.

The defendant, Stewart State Bank, filed four pleas. The first, non cepit; the second, non detinet; the third, title in defendant, Stewart State Bank; and the fourth, a plea of not guilty.

The defendant, Frank Gr. Bond, filed four separate pleas in identical form as that of the defendant, Stewart State Bank. Suit was afterward dismissed as to the other defendants.

Plaintiff filed replications to the said pleas and thereafter a trial was had by jury in the said court and at the close of the trial the jury returned a verdict in favor of appellee. Motions for a new trial and in arrest of judgment being overruled, judgment was rendered on the verdict of the jury. Appellants prosecute this appeal.

The evidence discloses that on or about May 24, 1929, appellee sold to appellant, Frank Gf. Bond of St. Charles, Illinois, a contractor engaged in general excavation work, the shovel in question for the contract price of $14,060, payable $1,250 in cash, with the order and the remainder in 15 equal monthly payments. This contract was such as is commonly termed a conditional sales contract and by the terms thereof it was expressly provided that the title to, and right of possession of, the said property and all additional parts or equipment furnished by the company for use in connection therewith “is and shall remain in the company (appellee) until all payments thereon had been paid.” The said contract also provided that if the seller so elected the purchaser should make a chattel mortgage to the seller to secure the unpaid remainder of said purchase price and notes evidencing the same.

The shovel and equipment therefor were duly delivered to the said Bond and afterward on July 3, 1929, the appellee sent to the said Stewart State Bank a certain chattel mortgage' and 13 notes to be executed by the said Bond covering the unpaid remainder of the purchase price, which at that time amounted to $11,102. The notes were for the sum of $854 each. These notes did not state upon their face that they were secured by a chattel mortgage. The chattel mortgage although executed on July 3, 1929, and witnessed on that date by J. W. Chaffee, an officer of the defendant, Stewart State Bank, was not acknowledged by the defendant Bond until September 30, 1929, and after acknowledgment the said mortgage was recorded on October 7,1929, in the office of the recorder of Kane county, Illinois.

On April 4, 1930, the said Frank G-. Bond executed a chattel mortgage upon the same property (and other property) to appellant, Stewart State Bank, to secure an indebtedness of $6,500 therein described. This mortgage was acknowledged on April 5, 1930, and recorded in the office of the recorder of deeds of Kane county, Illinois.

Bond defaulted in his payments to appellant, Stewart State Bank, and on September 16, 1930, the said bank attempted to foreclose its mortgage and it is alleged that appellant posted certain foreclosure notices on the property where the shovel in question was located and that possession of the property was taken and that a custodian therefor was appointed.

On September 17, 1930, the representative of the appellee herein went to the gravel pit where the shovel was located, near Hennepin, Illinois, and demanded of said defendant, Frank G-. Bond, the money due the company (appellee) and asserted that if the same was not paid the mortgage would be foreclosed. Bond said he had no money and for the plaintiff to go ahead and foreclose.

A sale under the alleged foreclosure of the mortgage to the appellant, Stewart State Bank, had been advertised to take place on September 20, and on such occasion the attorneys for the appellee and the appellants were present and considerable argument took place concerning the right to the property and the rights of the parties. Such sale was not then held but was continued to another date to be held in G-eneva, Illinois. On September 23, 1930, the appellee herein filed this suit and took possession of the property.

It is urged on behalf of the appellants that the mortgage of the appellee was not properly acknowledged and that therefore it is not a legal and valid mortgage. That the mortgage was executed by the appellant Frank G-. Bond there can be no doubt. The certificate of the justice of the peace certifies that the mortgage was acknowledged before him by the said Frank Gr. Bond and that he entered the same. In writing up the acknowledgment of the mortgage by the justice of the peace the said justice filled in the printed certificate used where such acknowledgment is made by an attorney in fact. There is nothing, however, to show that any attorney in fact was made or appointed by the mortgagor, the said Frank Gr. Bond. The justice of the peace was put on the witness stand and interrogated relative to the question as to whether or not Bond, the mortgagor, appeared before him in person. He was unable to state whether he did or not. He would not say that he did appear before him nor would he say that he did not. His answer was that he did not remember. His certificate, however, is to the effect that he did appear before him. The justice of the peace does not impeach his acknowledgment.

It is urged by the appellants that the instant case, in so far as it relates to the acknowledgment of the chattel mortgage, is controlled by the rule announced in Fisher v. Bollman, 258 Ill. App. 461. In the Fisher-Bollman case the record clearly discloses that the mortgagor never appeared before the justice of the peace who took the acknowledgment. It was not insisted in that case that the mortgagor ever appeared before the justice of the peace who took the acknowledgment but the evidence is clear and conclusive that he did not. In the instant case there is no evidence to show that Frank Gr. Bond, the mortgagor, did not appear before the justice of the peace who took the acknowledgment.

It has frequently been decided that neither the mortgagor nor the mortgagee is to suffer for the mistakes or misprisions of officers charged by law with the performance of duties connected with the acknowledgment, docketing and recording of chattel mortgages, when such mortgagor or mortgagee has done all that the law required of him. In Pease v. L. Fish Furniture Co., 176 Ill. 220, at page 223, among other things it was said: “The object of the statute requiring the justice before whom a chattel mortgage may be acknowledged to enter upon his docket the names of the mortgagor and mortgagee and a description of the property, was to. afford notice to such persons as might prefer to examine the record of the justice of the peace within their township in preference to going to the county records. . . . The main inquiry was whether Abby Pinkston had mortgaged her property, and if so, the amount. These facts were fully disclosed by the entry on the docket of the justice. Moreover, the mortgagee in this case did all that could properly be required to make the mortgages valid instruments. The mortgages were drawn in proper form, duly acknowledged as required by statute and placed on record, and the mere fact that the justice failed to make a proper entry on his docket could not invalidate the mortgages. The mortgagee had no control over the justice in regard to the entry to be made on his docket and should not be made to suffer on account of his incompetency or mistakes.” The above rule was followed by this court in Greenwald v. Lee, 252 Ill. App. 184. In view of the state of the record we are of the opinion that the acknowledgment in this cause is sufficient.

The evidence also discloses that the notes payable to appellee and secured by the chattel mortgage so executed to it do not recite upon their face that they are secured by such chattel mortgage and it is urged by the appellant that the mortgage is void because such recitation is not shown on such notes.

In Schillo v. White, 207 Ill. App. 390, page 391, the court in passing upon this question said: “The first point presented for determination is, whether or not the chattel mortgage hereinabove referred to was a valid, subsisting lien on said automobile as against third persons. Defendant contends that because the notes evidencing the indebtedness do not recite the fact of such security on their face, the said chattel mortgage is void under Section one of ‘An act to regulate the assignment of notes secured by chattel mortgages,’ etc., ch. 95, Hurd’s Rev. St. of Illinois. We think defendant has misconceived the effect of this statute. As indicated by its title, it is intended to ‘regulate the assignment of notes secured by chattel mortgages,’ and applies only to instances where an assignment of the notes has taken place. (Hogan v. Akin, 181 Ill. 448; Sellers v. Thomas, 185 Ill. 384.) Since the notes in the instant case have not been assigned and are still in the possession of the payee, obviously defendant’s contention that the mortgage is void because of the aforesaid omission is without merit. ’ ’

In this case the evidence discloses that the notes payable to appellee, signed by Bond and secured by the said mortgage, are yet owned by appellee and have not been assigned and the omission to recite upon the face of such notes the fact that they are secured by chattel mortgage does not render them invalid.

The evidence also discloses that the Stewart State Bank, acting by its officer, J. W. Chaffee, acted as the agent of appellee in the procuring of the said mortgage and notes to be signed and acknowledged by the said Bond and had notice of all of the facts and conditions as they existed at the time the notes and the mortgage were given and, being in possession of such notice, it is not now in a position to question such act. Polo State Bank v. Typer, 249 Ill. App. 604, page 608.

It is also urged on behalf of the appellants that the judgment should be reversed because it is said no demand was made for the return of the property. There was, on one or more occasions, considerable discussion concerning the ownership of the property and a few days before this replevin suit was filed a rather heated argument occurred concerning the right of possession of the shovel and its equipment and under such circumstances no further demand was necessary to be made for the return of the shovel.

The courts of this State have frequently held that the object or purpose of a demand is to afford the defendant an opportunity to restore to the one entitled to the possession the property claimed without being put to the expense and annoyance of litigation. National Bond and Investment Co. v. Zakos, 230 Ill. App. 608, page 612. And where it appears that a demand would be of no avail,, then none is required, for the law does not require the doing of a useless thing. National Bond & Investment Co. v. Zakos, supra; Cranz v. Kroger, 22 Ill. 74; Sinamaker v. Rose, 62 Ill. App. 118; Freehill v. Hueni, 103 Ill. App. 118.

Finding no error in this record the judgment of the circuit court is affirmed.

Judgment affirmed.


author: Me. Justice Jett

text:
    Hugh McEachran, Ex Officio Treasurer and Township Treasurer, Appellee, v. Frank E. Maynard et al., Appellants.
    Gen. No. 8,466.

      Opinion filed July 22, 1932.
    Frank E. Maynard, for appellants.
    Hall & Dusher, for appellee.
   Me. Justice Jett

delivered the opinion of the court.

This is an appeal from a judgment for $6,030 obtained in the circuit court of Winnebago county by Hugh McEachran, ex officio treasurer and township treasurer, appellee, against Frank E. Maynard, Truman Johnson, Evans A. Anderson, Arthur E. Anderson, Gust E. Blomquist, E. W. Carlson, E. O. Bergren, A. F. Erikson, E. S. Hamm, Oscar C. Hultberg and W. O. Peterson, appellants.

For the purposes of this opinion the appellee hereinafter will be referred to as plaintiff and appellants as defendants.

The declaration consists of one count. It is averred that on to wit: July 10, 1928, the plaintiff was ex officio, treasurer and township treasurer, which included ex officio treasurer of the road and bridge fund, and now is supervisor of B-ockford township, Illinois, and that on to wit said last date the plaintiff had a deposit of money in the Security National Bank of Boekford, Illinois, which said deposit belonged to the public and was public money, and was so known to the defendants and each of them; that the defendants desired the plaintiff to continue said deposit in said bank and desired that the plaintiff make other deposits in the said bank and allow the same to remain there from time to time, or parts thereof to remain in said bank from time to time, and in consideration thereof the said defendants executed and delivered to the plaintiff a bond in and by which it was agreed that if the bank “Shall well and faithfully perform and discharge its duties as such depositary and pay out such sums of money on deposit with it and hereafter to be deposited with it, and each and every part thereof, in accordance with a check or checks, or direction of the duly authorized officials of the township of Boekford, Illinois, and shall account for and pay over all moneys now on deposit with it, and hereafter to be deposited with it, and each and every part thereof, in accordance with a check or checks, or direction of the duly authorized officials of the township of Rockford, Illinois, and shall account for and pay over all moneys now on deposit with it and any money hereafter received by it and interest due from it as such depositary, then the obligation to be void.”

Plaintiff further averred that he continued said deposits in said Security National Bank, Rockford, Illinois, and thereafter made deposits in said bank and allowed the same or parts thereof, to remain from time to time down to and including June 15, 1931; that on said June 15, 1931, he had on deposit in said bank the sum of $6,000 which had previously been deposited there and which said sum was public money and known to the defendants and each of them to be public money, and said deposit was the deposit covered by and mentioned in said instrument in writing above mentioned, and were deposits which were made subsequent to July 10,1928; that on said June 15,1931, the said Security National Bank failed to open its doors and since said time has remained closed and that it is now a closed and defunct or insolvent bank; that he caused notice to be given to each of said defendants that said bank had closed its doors and that said deposit remained in said bank, and called upon said defendants to pay to him the said sum of $6,000; that the said Security National Bank did not well and faithfully perform and discharge its duties as such depositary, and did not pay out such sums of money on deposit with it, and after July 10, 1928, to be deposited with it, and each and every part thereof, in accordance with a check or checks or direction of the duly authorized official of the township of Rockford, Illinois, and did not account for and pay over all moneys so deposited with it July 10, 1928, and any money thereafter received by it but that said Security National Bank, Rockford, Illinois, failed and neglected to pay said sum of $6,000; that it would have been idle and ineffective for him, the plaintiff, to have made a check for $6,000 on said Security National Bank on June 15, 1931, or at any time thereafter; that said bank was closed and would not honor said check nor would any other person, firm or corporation honor the same for said bank, and for such reason the plaintiff did not make out a check for the sum of $6,000 either on June 15, 1931, or at any time thereafter, but plaintiff is ready, willing and able to execute and deliver such check at this time and at all times since June 15, 1931 if said Security National Bank would honor the same; that it became and was the duty of the defendants and each of them to pay to the plaintiff the sum of $6,000 on demand and that the plaintiff has demanded the same as aforesaid but that the defendants have not nor have any of them made reply to the demand of the plaintiff and each of them has remained silent at all times since the said demand and have failed and refused to either pay said sum of money or make any arrangements to secure the same to the plaintiff, to the damage of the plaintiff, etc.

To the declaration the defendants and each of them demurred. While the demurrer was pending before the court the record discloses that slight amendments were made by the respective parties to the cause. The plaintiff amended his declaration by averring “that the plaintiff was now supervisor of Rockford township”; the defendants amended by adding the names of two additional defendants to the written demurrer which had previously been filed. The amendments having been made, the cause was submitted to the court on the declaration of the plaintiff and the demurrer of the defendants thereto. The court overruled the demurrer and ruled the defendants to plead within 10 days. Within the time in which the defendants were ruled to plead they, without obtaining leave of the court, filed another general and special demurrer. To the second general and special demurrer filed by the defendants the plaintiff interposed a motion to strike it from the files upon the theory that a demurrer having been overruled and leave given to plead, the defendants could not again file a demurrer without they had leave of the court to do so and that to file a second demurrer which raised substantially the same points as were raised in the first one was trifling with the court and indicated that it was filed merely for delay. The motion of the plaintiff to strike the second general and special demurrer from the files was allowed, and thereupon the defendants asked leave of the court to stand by their first demurrer which had been overruled and they were given leave of the court to do so and the record discloses the fact that the defendants distinctly elected to stand by their first demurrer and this is the state of the record from which the appeal was prosecuted by the defendants.

An affidavit of claim was attached to the declaration and after the defendants had elected to stand by their demurrer the court heard evidence as to the .amount of the interest which had accrued on the deposit of $6,000 since the bank had closed its doors and rendered judgment on the affidavit of claim and on the computation of interest for the said amount as hereinbefore stated of $6,030.

The defendants argue a number of reasons for a reversal of the judgment. It is first argued by the defendants that the court erred in allowing the motion of the plaintiff to strike the second general and special demurrer without giving them a hearing on the same and it is suggested that the court abused its discretion in this respect. This objection of the defendants is not well taken for the reason that the defendants in the trial court definitely elected to stand by their first demurrer which was overruled. They cannot be permitted to stand by the first demurrer and allege error on the part of the court in refusing to allow them to plead further. By electing to stand by their first demurrer they waived any alleged error of the court in refusing to allow them to plead further. If they desired to assign error on the refusal of the court to allow them to plead further, they should not have elected to stand by their first demurrer which had been overruled. Furthermore, the record fails to show that the defendants ever asked permission of the court to file the second demurrer and if they did not ask leave they cannot assign error because the court did not grant permission.

It is next argued that the court erred in overruling the first demurrer because the declaration fails to state a cause of action in this that the declaration nowhere shows that the plaintiff as designated in the suit was at the time of the making of the demand on said bank the duly authorized official of the township of Rockford entitled to make such demand and receive the money. In answer to this alleged error it will be remembered that under the law supervisors are elected in the month of April; this suit was brought in July. The averment of the declaration is that on to wit: July 10, 1928, the plaintiff was “ex officio treasurer and township treasurer, which included ex officio treasurer of the Road and Bridge Fund, and now is supervisor of Rockford Township.”

In counties under township organization the supervisor of each town shall be ex officio treasurer of the Road and Bridge Fund. Cahill’s St. ch. 121, ¶ 48 (C).

The treasurer of the Road and Bridge Fund shall receive and have charge of all moneys raised in the town for the support and maintenance of the roads and bridges therein and for road damages. Cahill’s St. ch. 121, ¶ 58.

The supervisor of a town is required to give bond for the faithful discharge of his duties, and that he will safely keep and pay over all moneys intrusted to his keeping as such supervisor. Cahill’s St. ch. 139, ¶ 100.

In answer to the objection that the bank had never refused upon a proper demand within the law to pay the deposit, it will be noted that the bank placed itself beyond its power to pay by becoming insolvent and was taken over for liquidation by the comptroller of the currency. It will be remembered that the bond provided, “That the bank would account for and pay over all moneys now on deposit with it and any moneys thereafter received by it.” This the bank failed to do and placed it beyond its power for any one to make demand of it or for any one to present a check to it. When the bank allowed itself to become insolvent and its doors closed, the making of a check or checks would have been an idle and useless formality.

It is also insisted by the defendants that the declaration fails to aver that the bank did not well and faithfully discharge its duties under the terms of the bond. The answer to this objection is that not only the declaration itself but likewise the demurrer points out facts from which it would conclusively appear as a matter of law that the bank had failed to discharge its duties as a depositary under the terms of the bond for the declaration charges that on June 15, 1931, the bank failed to open its doors and has not opened its doors at any time since then, but it is a closed, defunct and insolvent bank. It would have been idle and ineffective for the plaintiff to have made a check for $6,000 and tendered it to the bank because the bank was closed and would not honor the check. Furthermore, the demurrer of the defendants states that the doors of the bank were closed and business suspended by order of the comptroller of the currency on June 15, 1931, and that a receiver was placed in charge of it and that it would be useless and illegal for the receiver to pay out the funds. We are of the opinion that there are ample averments to be found in the declaration to charge that the bank failed to well and faithfully perform and discharge its duties as such depositary.

It is also argued that the suit was prematurely instituted ; that the only guarantee by the bond was that they will pay any losses that will be sustained by the treasurer in the final accounting between the bank and the treasurer. We cannot subscribe to this construction that is placed by the defendants upon the indemnity bond in question. Public funds are herein involved and this bond was required for the very purpose that has arisen in this proceeding, namely, that if the bank failed the township would not have to wait for the bank to be liquidated but that the treasurer would be entitled to the money on demand.

In support of their contention that the suit was prematurely brought the defendants cite the case of Ætna Casualty & Surety Co. v. Village of Maywood, 262 Ill. App. 206. We have investigated this authority relied upon by the defendants. In that cause a bank had failed. A public oEcial had a deposit in the bank where the surety company was surety on the bond for the paying of the money if the bank did not but for a less amount than the deposit. The surety company brought a bill in equity, the prayer of which was that it might be allowed to pay the full amount of its policy and be subrogated or have assigned to it the claim of the public oEcial. In that way the surety company hoped to reimburse itself -out of the total amount of the claim for at least a part of its loss. The court held that the surety company could not be subrogated to the oficial’s position or rights until the oEcial had been paid in full. The deposit was much larger than the penal sum mentioned in the bond, and the court held that whatever remained after the oEcial had been paid from the dividends of the bank might be collected from the surety company. In other words, the surety company was trying to take out the penal amount of the bond from the first of the deposit rather than from the last part of the deposit. The effect of the court’s holding was that the surety company could not be subrogated to the first part of the deposit and allow the official to lose a part of the last part of it but that the surety company might be subrogated, if there is anything to subrogate, after the public official had been paid in full. The case relied upon by the defendants does not hold that on a bond of the character that is the basis of this suit the plaintiff may not immediately pursue his remedy against the signers of the bond. The very terms of the bond itself declared upon in this cause are that the signers thereof will be liable if the bank shall not account for and pay over all moneys to be deposited with it, and each and every part thereof, when requested by the proper official of the township of Rockford, Illinois. This the bank has failed to do and the defendants became immediately liable for the whole deposit.

There are other objections and some suggestions made with reference thereto but there is nothing in them that we feel called upon to answer further. We are of the opinion the declaration stated a cause of action and that the action of the court in the overruling of the demurrer in question was correct and that the court was within the rule in entering the judgment as was done in this cause.

The judgment of the circuit court of Winnebago county will therefore be affirmed.

Judgment affirmed.