author: Mr. Justice Friend

text:
    The People of the State of Illinois ex rel. Oscar Nelson, Complainant, v. Peoples State Bank of Maywood et al., Defendants. Appeal of Petitioner, Village of Maywood, Appellant. Anthony J. Busscher, Receiver of Peoples State Bank of Maywood, Appellee.
    Gen. No. 35,413.

      Opinion filed May 4, 1932.
    Jacob E. Ditttts, for appellant; Edmund D. Adcock, of counsel.
    Roy Massena, for appellee; Donald N. Schaffer, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

In a dissolution proceeding instituted by the Auditor of Public Accounts, a receiver was appointed to administer the affairs of the Peoples State Bank of May-wood. The Village of Maywood then had on deposit in its general banking account the sum of $52,026.93 and the further sum of $11,659.64, in the so-called Polan Collector and Water Department Accounts. The village sought by petition to obtain a preference as to both accounts in excess of $30,000, which was covered by depositary bonds, as fixed by authority of the village trustees. The court allowed the preference as to the Polan Collector and Water Department Accounts on the ground that these were, special deposits, but denied the petition as to the excess in the general banicing account. By this appeal the village seeks to reverse the court’s decree as to the general account and the receiver has filed cross errors as to that portion of the decree giving preference to the village on the Polan Collector and Water Department Accounts.

By concession, the determination of the litigated issues depends largely on the language and construction of the village ordinances. Section 13, chapter 7, of these ordinances designates various depositaries, including the Peoples State Bank of Maywood, for the deposit of funds received by the village treasurer and provides that he is “hereby directed and required to deposit all such moneys and funds belonging to said Village ... in said banks, and to maintain such deposits . . . substantially equal, or as nearly equal as practicable.” Section 14 (a) provides that each of said banks, before receiving deposits of said money or funds is ‘ ‘ required to execute and file with the Village Clerk, a bond, with such sureties as the Board of Trustees of said Village shall direct and approve, sufficient and conditioned to save the said Village from any loss.” By section 14 (e) the village treasurer is further “required not to deposit, or have deposited, with either of said banks, at any time, moneys or funds belonging to said Village in excess of the penal sum of such bond” then on file. Other provisions of the ordinance authorize the president and board of trustees to increase the penal sum in any depositary bond and to require new bonds whenever required.

With reference to the preference claimed as to funds on deposit in the general banking account, the controlling question is whether the deposit of these funds in excess of $30,000 was illegal, as having been made in violation of subsection 14 (e) of the village ordinances, thus constituting the bank who received them a trustee ex maleficio. Our attention is directed to the seeming conflict between section 13, which required the treasurer to deposit all funds in the designated banks, and section 14 (e) which required him not to deposit in any bank funds in excess of the depositary bonds then on file. Counsel are in accord, however, that the several provisions of the ordinance must be construed as a whole. Diving effect to this rule of construction, it is apparent that the two-fold purpose of this ordinance is to require the treasurer to deposit funds belonging to the village in designated banks and to safeguard such funds, by requiring ample security. With this intendment clearly discernible from the language of the ordinance, it seems reasonably clear that subsection (e) and other portions of section 14 are merely limitations upon the provisions of section 13 of the ordinance. This requires the construction, as we view it, that while the treasurer is directed to deposit village funds in the banks designated, yet she is limited in such direction by section 14 and subsections thereof to amounts not in excess of bonds then on file. From the language employed in the ordinance, and in light of the fact that it relates to public officers and was obviously intended to afford protection to citizens in safeguarding public funds, we regard the provisions of section 14 (e) as mandatory and not directory. French v. Edwards, 80 U. S. 506; People v. Marshall, 262 Ill. App. 128, 25 Ruling Case Law 766-67. Being mandatory, the provisions of the ordinance must be followed or the acts done will be invalid.

It is suggested by the receiver, however, that the stipulated facts fail to disclose actual knowledge on the part of the bank of the limitation provided by subsection 14 (e) when it received funds from the treasurer in excess of the depositary bonds. Actual knowledge is not necessary to render the excess deposits illegal. This ordinance, adopted pursuant to legislative authority (Cahill’s St. ch. 24, f 100; section 109, Cities and Villages Act, Smith-Hurd’s Revised Statutes 1929) has the same force and effect within the corporate limits of the municipality as a law passed by the legislature (Hope v. City of Alton, 214 Ill. 102), and is binding upon persons within the jurisdiction of the municipality in which the ordinance is in force. Under this rule, the receiver cannot rely upon the ignorance of the bank as to provisions of subsection 14 (e) of the ordinance, and being chargeable with knowledge of the contents of that section, the bank must be held to have received the excess deposits wrongfully. The receiver relies on State v. Benton State Bank, 81 Mont. 322, 263 Pac. 689, as holding that actual knowledge is required. The Montana statute then in force required the county treasurer to deposit public moneys in solvent banks of the county designated by the board of commissioners, and required him to take from such banks bonds or security prescribed and approved by the commissioners, sufficient to insure the safety and payment of all deposits. It provided further that when more than one bank was available in any county, such deposits should be distributed ratably among all banks qualifying therefor, substantially in proportion to the paid in capital of each such bank willing to receive deposits under the terms of the statute, and it was the duty of the county treasurer, under the provisions of the act, to prorate all deposits among banks in his county qualified to receive same, to the end that an equitable distribution of such deposits should be maintained. According to mathematical computation, the amount on deposit in the Benton State Bank was approximately $130,000 in excess of the amount which would have been deposited therein if the treasurer had made a correct apportionment. It was there argued that this excess deposit was illegal, and being illegal, the county never consented thereto and hence did not become a general creditor of the bank for the amount thereof, but that the bank held this excess deposit as a trustee ex maleficio for the use and benefit of the county. Counsel in that case relied on Yellowstone County v. First Trust & Savings Bank, 46 Mont. 439, to sustain their position, but the court refused to accede to the contention made, stating that the basis of the holding in the Yellowstone County case was that the bank, being cognizant of the facts and chargeable with knowledge of the law, was an active participant in the wrong committed, and held that the Benton State Bank had no knowledge or notice of the fact that the county treasurer was not complying strictly with the requirements of the statute in making a ratable distribution of the public money among the banks of the county which were qualified to receive the same. It is obvious, of course, that this is quite different from saying that in the instant case the bank was not chargeable with knowledge of the law.

The village by its brief asserts that there are no cases in this State upon the status of unlawful deposits of public moneys and we have been unable to find any. There are cases dealing with the prerogative right of the State to a preference in case of a lawful deposit, limiting that prerogative right to certain public bodies and to certain types of public moneys and cases denying a preference where the deposits were admittedly lawful. However, none of these involve the proposition before us. But we find in other jurisdictions authority to sustain petitioner’s view. In Compton Co. v. Farmers’ Trust Co., 220 Mo. App. 1081, a drainage district directed its treasurer to deposit funds aggregating some $6,600 in three designated banks. Contrary to the order of the board of supervisors, the treasurer of the district deposited the entire amount in the Farmers Trust Company. When the latter bank became insolvent proceedings were had to secure a preference as to $4,000 deposited in excess of the amount authorized by the district. A Missouri statute contained a provision similar to section 109 of the Cities and Villages Act, Cahill’s St. ch. 24, If 100, with reference to the deposit of public funds received by the treasurer of the drainage district. The court held that where public funds are deposited in violation of law and the depository has knowledge of the facts, title does not pass, and a trust ex maleficio results. In the course of its opinion the court pointed out that the defendant trust company could not lawfully receive the money; that it had knowledge of the fact as to the funds and was charged with knowledge of the terms of the statute; that in such case the relationship of debtor is not created between the depositor and the bank and for that reason the deposit remains the property of the depositor or the beneficial owner, and may be recovered from the bank or its receiver as against general creditors of the bank. The Yellowstone County case, supra, enunciates the same doctrine as the Missouri case. As we view it, there is no difference in principle between cases where facts of the illegality on- the part of the treasurer rendered the deposit unlawful and the instant case where the violation of an ordinance of which the bank is presumed to have knowledge invalidated the deposit of funds in excess of the amount covered by depository bonds. In both instances the bank becomes an active participant in the wrong, and the result follows, as of course, that as to any excess the bank should be held as a trustee ex malefic,io for the use and benefit of the county or municipality.

It is urged on behalf of the receiver that the acquiescence of the village board in the excess deposits for a considerable period of time, estops the village from now claiming that the excess deposits were illegal. This position seems to be untenable for two reasons: First, the doctrine of estoppel is founded on the presumed ratification of the treasurer?s wrongful act; therefore, unless the village in the first instance could authorize the treasurer to make a general deposit of its funds without security, it could not thereafter ratify his act in making such deposit; and, second, one who seeks to invoke the doctrine of estoppel must establish reliance upon the acts complained of and resultant prejudice. There is no showing here that the bank, its creditors or the receiver in any way relied upon the excess deposits or acquiescence of petitioner’s board of trustees, both essential elements being thus lacking. It was so held in Yellowstone County v. First Trust & Savings Bank, supra, where the identical point was urged and overruled on the grounds hereinabove stated.

There remains for consideration the cross errors assigned by the receiver as to the allowance of the preferred claim in the Folan Collector and Water Department Accounts. The Folan Collector account represented moneys paid by persons against whose property special assessments had been levied. The water accounts represented payments by users of water in the village. These accounts aggregated $11,659.64. The moneys of both accounts were payable at any bank in the Village of Maywood and were to be turned over and delivered by the bank to the village, or to be transferred to the village account. When the bank suspended business these moneys had not been transferred to the general account of the village or turned over to it. None of the moneys contained in these accounts was subject to check or withdrawal. It is conceded that there are but two kinds of bank' accounts, general and special. It has recently been held in this State that where money or other thing is deposited in a bank with the understanding that the particular money or thing is to be returned to the depositor, the funds constitute special deposits. People v. Farmers State, & Savings Bank, 338 Ill. 134. From the facts in evidence and a description of these accounts, it clearly appears that the bank was merely the agent of the village to receive the sums collected and to turn the money over or transfer the funds to the village account in the bank. Neither was done. Consequently, we must regard these funds as special deposits, to which the village was properly entitled to preference.'

For the reasons stated, the decree of the circuit court will be reversed and remanded with directions to amend the decree allowing the Village of Maywood a preference as to the deposits in excess of $30,000, and in all other respects the decree will be affirmed.

Reversed in part and remanded with directions.

Hebel, P. J., and Wilson, J., concur.


source: Caselaw Access Project

author: Mr. Justice Wilson

license: Public Domain

text:
    Nathan Sloan, Trading as Sloan & Schwartz, Appellee, v. Continental Casualty Company, Appellant.
    Gen. No. 35,256.
    Opinion filed May 4, 1932.
    Abraham Lepihe, for appellant; ft. C. d’Autremout, of counsel.
    No appearance for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

Plaintiff secured a judgment before a justice of the peace of Cook county against Marion R. Griffith, from which judgment an appeal was taken to the superior court where it was recorded as No. 476702. June 26, 1929, the cause was called for trial in the superior court and the following order entered:

‘ ‘ This cause being called for trial and neither party appearing to prosecute this suit in their behalf on motion of Court it is ordered that this cause be and the same is hereby dismissed without costs for want of prosecution. ’ ’

December 11, 1930, plaintiff Nathan Sloan, doing business as Sloan & Schwartz, brought' his action in the municipal court of Chicago against the defendant, Continental Casualty Company, on the bond filed in the superior court of Cook county on appeal from the judgment obtained against Marion R. Griffith. Defendants contend that the cause on the appeal from the justice of the peace having been dismissed for want of prosecution, the plaintiff is precluded from suing on the bond. It is also insisted that the record discloses that the action before the justice of the peace was in the name of Sloan & Schwartz, whereas the action on the bond in the municipal court is brought in the name of Nathan Sloan, doing business as Sloan & Schwartz.

We are of the opinion that the first point is well taken. Upon the perfecting of the appeal from the judgment of the justice of the peace in the superior court, it became necessary to try the cause de novo. As was said by this court in Gregory v. Hough, 171 Ill. App. 334: “ , . . We do not think that when a case is appealed from a justice of the peace to the Circuit Court it can be said that the judgment of the justice of the peace is vacated upon the perfecting of the appeal, because if the appeal for any reason is dismissed and a procedendo awarded, the efficacy of the judgment in the justice court is immediately re-established. ’ ’

If the order in the cause of the superior court had been “appeal dismissed,” the judgment of the justice of the peace would have been revitalized and the bond liable for failure to prosecute the appeal with effect. The judgment of the superior court, however, having been a dismissal for want of prosecution, there was no judgment against the defendant Marion R. Griffith and, necessarily, the obligation on the bond ceased. Shaffer v. Currier, 13 Ill. 667.

In view of our holding on this proposition, it is not necessary to consider the other contention raised by the defendant. The question being one of law and not of fact, for the reasons stated in this opinion, the judgment of the municipal court is reversed and judgment is entered here for the defendant.

Judgment reversed and judgment here for defendant.

Hebel, P. J., and Friehd, J., concur.


text:
    Michael J. Walsh, Appellee, v. James P. Fallis, Appellant.
    Gen. No. 35,493.
    Opinion filed May 4, 1932.
    Rehearing denied May 20, 1932.

      Rosen, Francis & Rosen, for appellant.
    William A. Rogan, for appellee; William C. Burns, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.

The plaintiff Walsh recovered a judgment for rent against the defendant in the municipal court of Chicago. The cause was tried before a jury, resulting in a verdict in favor of the plaintiff and judgment was entered on the verdict and an appeal prayed and allowed.

Plaintiff’s statement of claim alleged that plaintiff was the owner of a building at 1429 Farwell avenue, Chicago; that on September 3, 1929, he entered into a written lease with the defendant Fallís for an apartment in said building, which ran from October 1, 1929 to and including September 30, 1930, at a rental of $85 per month in advance; that about 40 days prior to September 30, 1930, defendant requested that he be given an extension of his lease for a period of seven months at a rental of $80 per month, provided certain repairs and decorations were made in said apartment; that thereupon plaintiff agreed to make the repairs and do the decorating if defendant would take a seven months’ extension to the said lease; that he made the repairs and did the decorating, but that defendant moved out September 30, 1930, and is now indebted to the defendant for the month of October and the month of November.

Plaintiff testified that he called upon the defendant about 40 days prior to October 1, 1930, and asked him if he wanted to enter into a new lease and the defendant said yes, if he would get a reduction, and it was agreed that $80 would be satisfactory and that the léase was to be for seven months. He testified further that they agreed upon what the decorating was to con-

sist of and that he did wash the walls and woodwork and cleaned the bedroom paper; that $80 a month was agreed upon as the rent to be paid; that he prepared a lease and delivered it to the defendant on or about September 15; that the lease was not signed or returned by the defendant and that the defendant moved out September 30.

Defendant testified that he had a talk with the plaintiff and requested a year’s lease at $80 per month with a month’s concession, which the plaintiff refused, and that the defendant then stated that he would consider a six months’ lease with certain decorations and that the plaintiff refused to give him a six months’ lease; that the defendant made no other proposition to the plaintiff and that plaintiff then left.

The action was one of the fourth class in the municipal court in which no particular form of pleading1 is required. Nevertheless, plaintiff filed a statement of claim based upon the lease given to the defendant and which the defendant failed to sign. In actions of the fourth class in the municipal court of Chicago the pleadings are not controlling and the rights of the parties are dependent upon the evidence adduced at the trial. Edgerton v. Chicago, R. I. & P. Ry. Co., 240 Ill. 311; Bruner v. Grand Trunk Western Ry. Co., 319 Ill. 421.

If the question were only one of pleading, we would not be disposed to disturb the judgment. The proof, however, bears out the statement of claim. Plaintiff’s evidence clearly discloses the fact that there was a discussion concerning the preparation of a lease at a price different from that under which the defendant was in possession; that this new lease was prepared by plaintiff and presented to the defendant for his acceptance and signature; that the defendant failed to sign the lease and moved out and delivered up possession before the expiration of his original lease.

The term being for less than a year, a written lease was not necessary and plaintiff could have recovered if there had been a parol agreement between the parties for renting for a specified period at a set price. There is no evidence of any parol letting, but, on the other hand, the evidence clearly indicates that there was to be a lease prepared and under such circumstances the rule is well settled that there must be an acceptance before it becomes binding.

Henderson v. Virden Goal Co., 78 Ill. App. 437; Baragiano v. Villani, 117 Ill. App. 372; Dupuis v. Kipnis, 217 Ill. App. 254, and other cases cited are not in point. In these cases it appears that something was done by the party named in the lease which constituted an acceptance of the agreement. In the case at bar nothing was done by the defendant, but, on the other hand, there was an express repudiation of the terms of the lease by the giving up of possession. If it was the intention of the parties to draft a written lease covering their future status then the oral agreement was not binding unless reduced to writing and signed. Nolan v. O’Sullivan, 148 Ill. App. 316. As was said in the case of National Union Bldg. Ass’n v. Knob, 177 Ill. App. 649:

“It is too plain for discussion that there was no meeting of minds between the parties, and hence no contract. The acceptance of defendant’s proposition was not unconditional. The contemporaneous talk about a written lease and the subsequent submission of one render it clearly a case where the parties negótiating a contract contemplated that a formal agreement should be drawn up and signed as a condition precedent to its completion, and it would not be a contract until that was done. Amer. & Eng. Ency. of Law, vol. 7 (2nd Ed.) p. 140.” To the same effect are the holdings in the cases of W. T. Grant Co. v. Jaeger, 224 Ill. App. 538; Scott v. Fowler, 130 Ill. App. 172.

The record discloses that this point was saved by the defendant by a motion in writing for a new trial.

Counsel for plaintiff contends that after verdict every intendment should be indulged in in favor of the statement of claim. With this we agree, but, as already stated, the evidence disclosed that the plaintiff was relying upon the written lease and not any oral agreement between the parties. Additional authorities cited by counsel for plaintiff do not help the situation. The facts clearly show that there was a discussion between the parties as to the terms of the new lease, which was to be reduced to writing and which was reduced to writing, and that this instrument was presented to the defendant for signature. Until this instrument was signed and executed, it was without any force and effect. There was nothing done by the defendant which would indicate an acceptance of its terms but on the other hand, as already stated, there was a direct repudiation by delivering up possession.

For the reasons stated in this opinion the judgment of the municipal court is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Hebel, P. J., and Friend, J., concur.


text:
    Union Bank of Chicago, Administrator of the Estate of Dora Wein, Deceased, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 35,520.

      Opinion filed May 4, 1932.
    Hoyne, O’Connor & Rubinkam, for appellant.
    Livingston & Kaufman, for appellee; William McKinley and Paul E. Price, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.

Plaintiff brought its action as administrator of the estate of Dora Wein to recover on a life insurance policy issued on the life of deceased. The policy was for $450 and contained a clause that in the event of the death through external violence and accidental means, the company would pay double the amount, namely $900. The statement of claim charged that the policy in question was issued and executed on the 17th day of June, A. D. 1929, and unconditionally delivered on June 24,1929'; charges further that the initial premium of 90(6 was paid and accepted by the defendant; that Dora Wein, the insured, died on June 22,1929, and that proof of loss was made and the policy delivered to the defendant upon demand; that the said Dora Wein died ’ as a result of bodily injuries caused solely through external, violent and accidental means, and that her death occurred within 90 days from the date of receiving such bodily injuries.

The affidavit of merits filed on behalf of the defendant sets forth that the defendant has a good defense upon the merits to the whole of plaintiff’s demand; denies that it is indebted in any sum whatsoever; that the policy provided that it was not to take effect if the insured was not alive on the date of issuance and delivery of the said policy and charges that the deceased was not in fact alive at the time the policy was issued and delivered.

Upon the cause being called for trial the defendant tendered 90^ which was deposited with the clerk of the court and which was the amount of the paid up premium.

Testimony was introduced on both sides and at the end of all the evidence the court directed a verdict in favor of the plaintiff for the sum of $900, together with costs, and judgment was entered upon this verdict.

The action was one of the fourth class and the facts relied upon entitling the plaintiff to recover or the defendant to defend need not he alleged with the certainty required under the common law practice. Enberg v. City of Chicago, 271 Ill. 404. In cases of this class in the municipal court the facts are controlling.

The policy of insurance upon which this case is predicated contains two provisions bearing on the particular issues involved. The first provision reads as follows:

“The Company assumes no obligation prior to the date hereof. . . .

“If, (1) the Insured is not alive or is not in sound health on the date hereof; . . . ”

The second provision provides substantially that :

“If the death of the insured shall be the result of bodily injuries, solely through external, violent and accidental means, resulting directly and independently of all other causes, in the death of the Insured, the company will pay double the amount named in the policy.”

Dora Wein died June 22, 1929. The policy introduced in evidence by the plaintiff bears the date of June 24, 1929.

Ida Miller, a daughter of the deceased, testified that she received the policy June 17, 1929; Meyer Katznelson, an agent of the defendant company, testified that it came into his hands from the New York office by mail June 21,1929. From this it is argued that the policy could not possibly have been delivered before June 22. On June 19 of the same year, according to the testimony of her daughter Ida Miller, Dora Wein, deceased, was in the Mount Sinai Hospital in an unconscious condition, as a result of shock, from which she subsequently died on June 22, 1929.

The condition set out in the policy, to the effect that the insured must be alive and in sound health on the date appearing in the policy, was a valid and subsisting,, condition and constituted a good defense to an action predicated thereon if the facts warranted. Souza v. Metropolitan Life Ins. Co., 270 Mass. 189; Fraser v. Metropolitan Life Ins. Co. (Wash.), 5 Pac. (2d) 978. This question should have been submitted to a jury and in view of the fact that the testimony is conflicting as to when the policy was delivered, it was error for the trial court to have directed a verdict so long as this question was in the case. The date of the policy was not in itself conclusive but was susceptible of extraneous proof for the purpose of showing the actual date of delivery. The policy also contains the provision, already referred to, viz.: that if death resulted from bodily injuries, the company would pay double the amount stated in the policy.

Evidence was introduced on behalf of the plaintiff for the purpose of showing that the deceased came to her death through external, violent and accidental means. From this evidence it appears that on the 19th of June, 1929, she was in the living quarters of her family, which were at the back of a store, run and operated by her husband, and located at 3103 West Polk street, Chicago. Ida Miller was with her at the time. It appears that the husband of the deceased was in the store and they heard him shout, 1‘ Thief, Thief. ’ ’ As a matter of fact there was a theft at the time in question, although the deceased was not in the store proper during the occurrence. The witness, Ida Miller, testified that the deceased started to tremble and went into convulsions; that she was taken to the hospital where she remained until her death.

The proof of death furnished to the defendant stated that the cause of the death of the deceased was cerebral hemorrhage. We are not required at this time to pass upon the question as a matter of law as to whether or not the provision of the policy necessitated actual physical violence, or whether it was sufficient to cover a case of shock similar to that testified to in this proceeding. The burden of proof, however, was upon the plaintiff to establish facts which would be sufficient to entitle it to recover double the amount stated in the policy. This question should have been submitted to the jury.

If there is evidence tending to support the contention of the defendant with reference to controverted questions of fact, or if the burden is upon the plaintiff to prove certain material issues, the trial court should not direct a verdict even though it may be of the opinion that it should be set aside if returned. Bechtel v. Marshall, 283 Ill. 486; Bailey v. Robison, 233 Ill. 614; Libby, McNeill & Libby v. Cook, 222 Ill. 206; Garrity v. Catholic Order of Foresters, 243 Ill. 411.

In our opinion the case should have been submitted to the jury upon both of the issues discussed in this opinion. It was error for the trial court to have directed a verdict in favor of the plaintiff.

For the reasons stated in this opinion the judgment of the municipal court is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded.

Hebel, P. J., and Friend, J., concur.


author: Mr. Presiding Justice O’Connor

text:
    Louis Belofsky, Appellee, v. Carl J. Johnson et al., Defendants. Madison & Kedzie State Bank, Trustee, and Chicago Title and Trust Company, First Successor in Trust, Appellants.
    Gen. No. 35,989.
    Opinion filed May 10, 1932.

      Winston, Strawn & Shaw and Walter V. Fackler, for appellants; Harold Beacom, Richard H. Hollen and Anthony L. Michel, of counsel.
    Aaron Soble and William Feldman, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal the defendants seek to reverse an order entered by the superior court of Cook county, appointing a receiver of an apartment building. The appointment was made on the verified bill of the complainant.

The record discloses that on January 25,1932, plaintiff claiming to be the owner of two $500 first mortgage real estate bonds of an issue of $52,500, filed his bill alleging that there was a vacancy in the trusteeship of the trust deed conveying the apartment building as security for the bond issue; that the vacancy occurred by reason of the fact that the defendant, Madison & Kedzie State Bank, trustee, which conducted a banking and trust business in Chicago, was closed by the auditor of public accounts, and a receiver appointed by him; that the appointment had been confirmed by the superior court of Cook county; and praying that the-court appoint a trustee, and pending the appointment a receiver be appointed of the premises to collect the rents, issues and profits.

It was further alleged that the interest on the bonds fell due on May 2 and November 2 of each year, and that they were payable at the office of the defendant bank; that the maker of the bonds and trust deed had subsequently transferred the property to the defendant, Johnson; that the trust deed pledged the rents as security for the payment of the bonds; that all payments on account of the indebtedness had been made up to May 2,1931, on which date there was a default in payment of interest and part of the principal; that the defendant trustee bank was insolvent and had ceased doing business and was now being administered by the auditor of public accounts, who filed a bill against it under the statute on October 31,1931, in the superior court of Cook county; that on November 2, 1931, an order was entered in that case confirming the appointment of Will H. Wade as receiver of the bank and directing the receiver “within a reasonable time to have executed and delivered the resignation of said bank from the various trusts occupied and administered by said bank including the trust created” under the trust deed. It further alleged that the trust deed provided that in case of the resignation or refusal of the bank to act as trustee under the trust deed, the Chicago Title & Trust Co. was appointed first successor in trust and the Chicago Trust Company second successor in trust; that since the defaults in payment of interest and part principal due May 2, 1931, it was necessary for the trustee to take action to protect the interest of the bondholders; that the complainant, upon learning of the incapacity of the bank to act, requested the Chicago Title & Trust Company, and later the Central Republic Bank & Trust Co., which succeeded the Chicago Trust Co., to act as trustee under the trust deed, but that they refused to do so; that by reason of this fact the office of trustee under the trust deed became and was vacant; that there was no one to whom payment could be made of principal or interest under the trust deed on account of the vacancy in the office of the trustee, and no one to enforce the pledge of rents under the provision contained in the trust deed; that the premises were improved with a three-story brick building containing 15 apartments worth not to exceed $25,000; that the amount of the indebtedness remaining unpaid exceeded $30,000.

It was further alleged upon information and belief, that the owners of the equity had deposited with the bank both prior to and since its insolvency, considerable sums of money which had been “used by said bank for the purpose of repaying itself for advancements on account of the purchase or payment of bonds . . . that the lien of said trust deed as security for said advancements is subordinate” and inferior to the lien of the trust deed; and that complainant fears that if other sums were paid to the bank or to Wade, the receiver, the moneys would also be used in the repayment of subordinate securities. The bill further sets up that the costs and expenses of the complainant are necessary and proper for the protection of the trust estate and that under the terms of the trust deed he is entitled to be reimbursed for costs and expenses including “reasonable solicitor’s fees and master’s and stenographer’s fees and charges”; that the owners of the other bonds exceeded 20 in number and are unknown to the complainant, but that if and when he obtains the names of the parties he will make them parties defendant.

Section 11 of the act in relation to banks (eh. 16a, Till, p.- 171, Cahill’s 1931 Statutes) provides that where a receiver is appointed by the auditor of public accounts of a bank, ‘‘ Such receiver, under the direction of the Auditor,, shall take possession of, and for the purpose of the receivership, the title to, the books, records and assets of every description of such bank, and shall proceed to collect all debts, dues and claims belonging to it, . . .

“Such receiver shall have authority to sue and defend in his own name with respect to the affairs, assets, claims, debts and choses in action of such bank. . . . As soon as can reasonably be done, he shall resign on behalf of said bank, all trusteeships, guardianships,conservatorships, and all appointments as executor and administrator, making in each case a proper accounting on behalf of said bank. ’ ’

The court, in its order appointing the receiver in the instant case found, as alleged in the bill, that the appointment of receiver Wade of the bank had been confirmed by an order entered in the suit brought by the auditor against the bank in the superior court of Cook county, and that in that case receiver Wade was ordered and directed to execute and deliver, within a reasonable time, the resignation of the bank as trustee of the trust deed involved herein, and the court further found in the order from which this appeal is taken, “that the office of Trustee under the Trust Deed above described has become and is vacant.” There is no allegation in the bill, nor is there anything in the record, to show or indicate that Wade, the receiver of the bank, had refused to resign on behalf of the bank the trusteeship mentioned in the trust deed. The statute requires that he do this “As soon as can reasonably be done, . . . making in each case a proper accounting on behalf of said bank.” Nor is there any showing that he was not proceeding with due diligence in making an accounting on behalf of the bank as trustee. In these circumstances, it must be assumed that Wade, whose appointment had been confirmed by the chancellor, was performing his duties as required by the statute. We think it obvious that there was no vacancy in the trusteeship and therefore the court should not have appointed a receiver of the premises. Parties ought not be burdened with the expense of receiver’s and solicitor’s fees unless it is necessary under the law to do so. Moreover, the receiver Wade, who was in effect ousted from his duty of resigning as required by the order appointing him in accordance with the statute, was not made a party to the suit. We think it obvious that this was erroneous. That we are right in what we have said further appears from the affidavit filed by solicitor for the complainant, in support of his motion made to dismiss the appeal in this case, wherein he swears that on April 8, 1932, he communicated with the receiver Wade, and inquired whether Wade had resigned on behalf of the bank the trusteeship and Wade informed him that he had resigned on February 5, 1932. This affidavit may properly be considered here. Wick v. Chicago Telephone Co., 277 Ill. 338; Eastman v. Dole, 213 Ill. App. 364; Laskey v. Laskey, 226 Ill. App. 566.

For the reasons stated the order appealed from is reversed.

Order reversed.

McSurely and Hatchett, JJ., concur.


text:
    W. C. Handley, Appellant, v. Oscar W. Moburg, Appellee.
    Gen. No. 35,076.

      Opinion filed May 11, 1932.
    Nuttall & Flood, for appellant.
    John E. Erickson and Frederick J. Bertram, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

This cause is now before us on rehearing granted. After due consideration, we adhere to the original opinion.

Judgment was entered by confession in the municipal court of Chicago in favor of plaintiff and against defendant on a warrant of attorney, authorizing confession of judgment at any time thereafter in a written guarantee on the back of a chattel mortgage note executed by defendant as maker. The note was dated September 24, 1927, in the amount of $1,368, and showed a credit on its face of $170. The judgment was entered on September 28, 1927, for the balance remaining due on said note, together with attorney’s fees allowed by the court, aggregating $1,298 and costs.

On December 27, 1929, defendant filed a motion to vacate and set aside the judgment thus entered and in support of his motion filed an affidavit which was allowed to stand as his affidavit of merits, setting up in substance that the note was a chattel mortgage note and subject to all defenses in the hands of plaintiff as assignee; that thereafter and notwithstanding the entry of judgment, plaintiff as assignee took possession of the automobile pledged as security for the payment of the note and appropriated the same to his own use, and then conducted a chattel mortgage sale of the car by himself to himself; that by reason of said sale plaintiff had satisfaction from the defendant, and the consideration for said note had failed and plaintiff was not entitled to recover any part of said judgment.

The court ordered that the judgment by confession be opened, that leave be given to defendant to appear and make defense and that trial of said cause be had notwithstanding said judgment; that the judgment stand as security and execution be stayed until further order of the court; also that the affidavit filed by defendant stand as his affidavit of merits.

Subsequently, the defendant filed an additional affidavit interposing usury as a partial defense. On trial, however, this question was taken from the jury.

Upon issues thus joined, the cause was heard before the court and a jury resulting in a verdict finding the issues against the plaintiff. Plaintiff moved for judgment non obstante veredicto and then for a new trial, which were overruled and judgment entered on the verdict.

Several points are raised, but the controlling question is whether the trial court had authority to .set aside the judgment entered by confession on a defense arising subsequent to the entry of judgment. This question, was squarely presented in the case of Arnold v. McCoy, 214 Ill. App. 557, which is precisely in point. In that case, as here, judgment was taken by confession, execution issued, and a considerable time thereafter defendants filed a motion to set aside the judgment and for leave to plead and defend, supporting their motion by affidavit that the note was given in part payment of an automobile; that immediately thereafter plaintiff repossessed the said car and has retained possession thereof, refusing to return it to defendant, and that by reason thereof the indebtedness was canceled. Upon the hearing of the motion, the court refused to set aside the judgment, and held that defense to a debt arising after the entry of the judgment is not available on motion to open the judgment.

Defendant seeks to distinguish the foregoing decision from the case at bar by insisting that the judgment was here vacated and defendant’s petition allowed to stand as his affidavit of merits; and that under the authority of Borschsenius v. Canutson, 100 Ill. 82, and cases cited therein, was thereafter at liberty to interpose any defense, which he might do in an ordinary action upon the note by summons, including the defense of satisfaction. The Borschsenius case does lay down the rule that where a judgment entered by confession is opened and the defendant granted leave to plead without any restriction, he may plead any matter in bar which he might do had the suit been brought by summons in the ordinary way, and that the warrant of attorney to confess cannot be relied upon in avoidance of the plea. However, in the Borschsenius case, the affidavit upon which the judgment was opened set out a meritorious defense to the debt, which is one of the fundamental requisites of such a pleading. The additional defense thereafter interposed was a plea of set-off, and the court simply held that the latter plea which was in bar of the action might be availed of as well as the other defense set up on the petition supporting the motion to vacate the judgment. Before this rule can be invoked, however, there must be some showing to authorize the court to open the judgment; there must be some valid legal defense averred to authorize the court in acting. In the instant case, the only matter alleged in defendant’s petition relates to matters arising subsequent to the entry of the judgment, namely, satisfaction, and therefore the immediate question presented for review is whether the court had authority under defendant’s petition to vacate the judgment theretofore entered by confession. Upon this question we find the recent case of Handel v. Curry, 254 Ill. App. 36, directly applicable. Similar circumstances existed in that case and the court held adversely to the contentions of the defendant herein. It there appears that a judgment by confession was obtained on a promissory note. Later the defendants moved the court to vacate the judgment, and in support of their motion filed certain affidavits alleging payments made to the plaintiff after the entry of the judgment. Over the objection of plaintiff, an order was entered by the court staying execution and granting leave to defendants to appear and defend, the judgment to stand as security. Thereafter the cause was heard by the court, as here, upon evidence submitted, and the court found the issues against the plaintiff. In discussing the question pertinent to the instant case, the court said:

“Even according to the theory of fact of the defendants, the alleged payments were made after the judgment in the instant case had been entered, and the contention of the plaintiff that the trial court had no right, as a matter of law, under such a state of facts, to vacate the judgment, is clearly a meritorious one. ‘In this State, where a judgment is in fact paid, the court, on motion, may stay further proceedings and compel the entry of satisfaction of record. Russell v. Hogan, 1 Scam. 552; Hoag v. Starr, 69 Ill. 365; Neal v. Hanley, 116 id. 423; Black on Judgments, 1014. ... In cases arising upon motion, it would seem that the same mode of trial ought to prevail as prevailed at common law in proceedings by the writ of audita querela, and such we find to be the practice. An issue is made, and sent to the jury to be tried, as any other issue of fact. The parties are thereby given their right of trial by jury.’ Harding v. Hawkins, 141 Ill. 572, 584. If the defendants have in fact made payments to the plaintiff sufficient to satisfy the judgment in the instant case, let them proceed 'in the proper manner to obtain satisfaction of the judgment.”

Under the common law, the writ of audita querela was a form of action by which a defendant might recall or prevent an execution on account of some matter occurring after judgment, amounting to a discharge. The writ was of a remedial nature and was devised principally to relieve a party who had a good defense, but was too late to make it in the ordinary form of proceeding. It was characteristic of the writ that its venue was of the court issuing the execution. Longworth v. Screven, 2 Hill (S. C.) 298, 27 Am. Dec. 381; Hopkins v. Hayward, 34 Vt. 474; Coffin v. Ewer, 46 Mass. (5 Metc.) 228. We believe the trial court in the instant case would have been justified under the prayer of defendant’s petition to invoke the practice prevailing at common law. The petition prayed that the court vacate and set aside the judgment, “or that judgment be satisfied of record.” Under this alternative prayer for relief, the trial court should have impaneled a jury for the sole purpose of trying the issue raised by the petition, namely, whether the judgment had been satisfied by the sale of the automobile. The judgment should not have been opened because the petition failed to show that any legal defense existed at the time the judgment was entered.

Defendant also urges that the judgment by confession was prematurely entered because the debt was not due and insists that this was sufficient ground for setting the judgment aside. The rule is otherwise, however, as laid down by a long line of decisions. Adam v. Arnold, 86 Ill. 185; Bradshaw v. Hansen, 232 Ill. App. 44, 50; St. Clair v. Goldie, 244 Ill. App. 357.

In conformance with the views herein expressed, the order of the municipal court setting aside the original judgment by confession entered September 28, 1927, for $1,298 and costs is reversed with directions to expunge from the record said order and allow the judgment by confession theretofore entered herein to stand in full force and effect, and that the court proceed further with the prayer of the defendant’s petition asking for satisfaction of the judgment of record.

Reversed and remanded with directions.

Hebel, P. J., and Wilson, J., concur.


text:
    Edgar S. Kiefer Tanning Company, Appellee, v. The Alliance Insurance Company of Philadelphia et al., Appellants.
    Gen. No. 35,767.

      Opinion filed May 16, 1932.
    Rehearing denied May 31, 1932.
    Hicks & Folonie, for appellants.
    Barry & Crowley, for appellee; Rupert Barry, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Complainant filed its bill against seven fire insurance companies to reform policies issued by them covering complainant’s property and to enforce the policies as reformed. Afterward it filed its amended bill setting up the same matters as in its original bill but more in detail. The defendants answered. Later the complainant, by leave of court, filed an amendment to its amended bill, to which the defendants’ demurrers were overruled, and they then answered. The case was heard by the chancellor and a decree entered in which it was found, inter alia, that complainant had failed to prove that the policies should be reformed but that it had proven the material allegations, and it was decreed that the defendants pay the complainant sums aggregating $6,258.80, the amount to be paid by each defendant being specified. To reverse this decree defendants prosecute this appeal.

There is no dispute as to the facts in this case. The only controversy is as to the construction to be placed on the policies in view of all the accompanying* circumstances.

The record discloses that complainant was engaged in the manufacture and sale of leather on the third floor of a building known as numbers 223-225 West Lake street, Chicago, and later enlarged its quarters by taking space on the third floor of a building immediately adjoining, known as numbers 219-221 West Lake street. The floors were on the same level and the two spaces were connected by a door. Its merchandise in process of manufacture or finished was shifted over the entire space which was operated as a single business. To insure its property complainant obtained $109,000 of fire insurance. There were 36 policies written by' 33 companies and complainant paid the same rate of premium for each of the policies. While the policies were in effect a fire damaged the property located in the space known as 219-221 West Lake street. There was no damage to_the property on the other part of the floor known as 223-225 West Lake street. After the fire, by agreement of all parties including the defendants, the loss was adjusted by the Cook County Loss Adjustment Bureau. The adjustment showed the following: Cash value of complainant’s property, $120,649.78; cash value of that portion of the property located on that part of the floor known as 219-221 West Lake street where the fire occurred, $37,755.79; damage caused by the fire, $35,655.53. After the adjustment the insurance companies representing 29 policies aggregating $89,000 insurance, paid their pro rata share of the loss, viz., $29,113.24. The seven defendants, who had policies on the property aggregating $20,000 insurance, refused to pay the balance of the loss, $6,542.29, claiming they were not liable for that amount because complainant’s property was located in two buildings and under the terms of the policies the aggregate amount of insurance on the property covered by the seven policies on the building where the loss occurred was $6,258.80, and that by another provision of the policies they were required to pay only a proportionate part of that amount, namely, $2,342.70, which they offered and agreed to pay. The offer being refused, this suit was brought.

There are three paragraphs in the policies upon which the defendants rely to sustain their contention:

(1) “In case this policy covers in more than one building, this policy to attach in each building in proportion as the value in each bears to the value in all. . . .

(2) “Contribution Clause: In consideration of the rate at which this policy is written, it is expressly stipulated and made a condition of this contract that this company shall be liable for no greater proportion of any loss than the amount hereby insured bears to ninety (90) per cent of the actual cash value of the property described herein at the time when such loss shall happen, nor for more than the proportion which this policy bears to the total contributing insurance thereon. . . .

(3) “This company shall not be liable under this policy for a greater proportion of any loss on the described property, or for loss by and expense of removal from the premises endangered by fire, than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property, and the extent of the application of the insurance under this policy or of the contribution to be made by this company in case of loss may be provided for by agreement or condition written hereon or attached or appended hereto. ’ ’

The first paragraph above quoted from the policy is referred to in the record and briefs as the “Average Clause. ’ ’

The defendants contend that the decree is wrong and should be reversed because the only ground alleged in the amended bill as amended that would give a court of equity jurisdiction was that the policies be reformed on account of the mutual mistake of both parties in reference to the so-called “Average Clause,” and that since the decree expressly found that the complainant had not proven its allegation in reference to the reformation of the policies, this eliminated the only ground which would give equity jurisdiction, and the bill should have been dismissed. In support of this contention the defendants cite a number of authorities, the leading one being Brauer v. Laughlin, 235 Ill. 265. In that case it was held that the allegations of the bill which would authorize a court of equity to take jurisdiction to establish a trust and for an accounting were not sustained by the proof, although it showed that complainant had a legal demand against defendants for money loaned, yet this fact would not justify a court of equity in retaining jurisdiction and entering a money decree, no reason appearing why the remedy at law was not complete and adequate. The basis for this holding was that plaintiff had but a legal demand which he could enforce adequately in an action of law, where either party would be entitled to a trial by jury. The court there said (pp. 273,274): “The recovery here allowed is upon a purely legal demand, and if an action had been brought at law, either of the parties would have been entitled to a jury on the trial. Courts will not permit parties to sue in chancery, and upon failure to establish any basis for equitable relief have the bill retained for the purpose of a recovery upon a purely legal demand. To allow this to be done would be to deprive the defendant of his constitutional right of trial by jury. We said in County of Cook v. Davis, 143 Ill. 151 (p. 154): ‘Where a court of law is competent to afford an adequate and ample remedy, courts of equity will remit the parties to the courts of law, where the right of trial by jury is secured to them.’ ” In that case it will be noted that it was held that a court of equity was without jurisdiction where the proof failed to sustain the allegations of the bill which gave such court jurisdiction on-the ground that there was an adequate remedy at law and therefore the parties were entitled to a jury trial. In the instant case it is conceded by counsel for the defendants that even if the complainant had brought separate actions at law on the seven policies, there would be no question for a jury to pass upon because the only question involved would be the construction of the policies, which is a question of law for the court. This being true, it follows that as a matter of substance the defendants were not deprived of a jury trial, which was the basis for the decision in the Brauer case. The same judge who heard the chancery case is authorized, under the law, to hear actions at law should they have been brought on the several policies. It is fundamental that courts never require the doing of a useless act, and it would be entirely useless to reverse the decree in this case so that the same judge might pass on the same legal questions in actions at law brought on the policies.

But we are further of the opinion that a court of equity had jurisdiction although complainant’s evidence did not sustain the allegations of his bill in regard to the mutual mistake for the reason that it would prevent a multiplicity of suits — -the bringing of seven suits — on the seven policies. Abbott v. Loving, 303 Ill. 154; North American Ins. Co. v. Yates, 214 Ill., 272; Pomeroy’s Eq. Jur., sec. 245 (4th Ed.) vol. 1; Clark v. City of Belvidere, 254 Ill. App. 86; German Alliance Ins. Co. v. Van Cleave, 191 Ill. 410.

In the Abbott case, supra, a bill was filed and it was demurred to on the ground that it was multifarious. The court said (p. 162): “It is impossible tó lay down any rule universally applicable and controlling on this question or to say with certainty what constitutes multifariousness as an abstract proposition, under the authorities; that there is no settled and inflexible rule; that the modern tendency of the courts is to relax the rigid rules of pleading and to hold that a bill is not multifarious where causes set forth in the bill may more conveniently be tried in a single suit, where it will avoid a multiplicity of suits, and where the relief sought in each cause is of the same general character and no unreasonable hardship will be caused the parties against whom the relief is asked. ... ‘A bill is not necessarily rendered multifarious by reason of the fact that there may be united in it several causes of action. If all the different causes of action united in the bill grow out of the same transaction, and if all the defendants are interested in the same rights and the relief against each is of the same general character, the bill may be maintained. No bill is multifarious that presents a common point of litigation, the decision of which will affect the whole subject matter and will settle the rights of all the parties to the suit.’ ”

In the Yates case, supra (214 Ill. 272), a bill was filed by the insurance superintendent against 20 foreign fire insurance companies and it was held that the bill was not multifarious but might be maintained on the ground of avoiding a multiplicity of suits; that there was no inflexible rule laid down but that each case rested largely in the discretion of the court; (p. 284): “and that considerations of convenience to the court, the avoidance of a multiplicity of suits and of unreasonable hardship to the several parties joined are to be taken into account. ’ ’

Pomeroy in his work on Equity Jurisprudence (4th ed.) vol. I, p. 396, sec. 245, says: “4. Where the same party, A, has or claims to have some common right against a number of persons, the establishment of which would regularly require a separate action brought by him against each of these persons, or brought by each of them against him, and instead thereof he might procure the whole to be determined in one suit brought by himself against all the adverse claimants as co-defendants, ’ ’ and that in such a situation equity would take jurisdiction.

In the Clark case, supra (254 Ill. App. 86), it was held that a bill brought by 10 property owners to compel the City of Belvidere to refund to each complainant a certain sum due as a rebate under a special assessment was maintainable on the ground that it would avoid a multiplicity of suits, although each complainant had an adequate remedy at law. Citing the Van Cleave and Abbott cases, supra.

In the Van Cleave case, supra (191 Ill. 410), 42 foreign fire insurance companies doing business in this State filed their bill against the insurance superintendent and State treasurer to compel the superintendent to refund a tax of two per cent paid by them under protest. A demurrer was sustained to the bill and it was dismissed, but on appeal to the Supreme Court the decree was reversed and the cause remanded. The bill there showed, inter alia, that each complainant paid a certain tax, the aggregate amount paid by the 42 companies being more than $15,000. The court there said (pp. 413, 414): “It is next insisted that the decree is right because each of the complainants has an adequate remedy at law, by a suit against the insurance superintendent to recover the amount wrongfully collected from it. At least 42 suits would be necessary to accomplish the purpose and to give to each complainant its legal remedy, and the question involved in each case would be exactly the same. While the demand is separate in each case, the rights of the parties depend upon the same facts. Complete relief may be furnished by.a decree determining the single question applicable to all and in which all are interested. The case is a proper one for an application of equitable powers.”

We think the rule announced in that case is applicable to the facts in the case before us. In that case, each of the 42 insurance companies might maintain a suit at law against the insurance superintendent. The facts would be the same in each of the 42 cases. The evidence would have to be introduced 42 different times, while all of this could be accomplished by one suit in chancery where the evidence would be produced but once. In the instant case the complainant, to enforce its rights, would be required to bring separate actions at law and the evidence and the questions involved would be identical in each case. It would have to produce the evidence in seven actions, while in a court of equity one suit would determine the entire matter. As said in the Van Cleave case, we think the facts in the case before us make it “a proper one for an application of equitable powers.”

The defendants further contend that complainant’s suit was barred by a limitation contained in the policies which provided that no suit or action on the policies could be brought unless commenced within 12 months next after the fire; that the fire occurred on July 8, 1927, and the bill was filed March 19, 1928, within the year; that the relief prayed in the bill and the amended bill which was later filed was that the policies be reformed; that the amendment to the amended bill was filed May 17, 1930, more than 12 months after the fire, in which the relief sought was that the policies be enforced as written, without reformation, and that the amendment stated a different cause of action from that set up in the bill and the amended bill. We think there is no merit in this contention. The complainant in his original bill, in his amended bill, and in the amendment, was seeking to enforce payment by the seven defendant insurance companies for the loss sustained by him on account of the fire damaging his property. The prayer in the bill and in the amended bill was not changed by the amendment. . Complainant’s one object was to secure the money he claimed to be due him, and it was not changed in any way by the amendment — the prayer still remained the same.

Coming now to the merits of the controversy, the defendants’ position is that the court placed a wrong construction on the insurance policies; that each policy contained the three paragraphs hereinabove quoted; that since the property covered by .the policies was located in two buildings, the amount of insurance on the property in the building where the fire occurred, and covered by the seven policies (whose face value aggregated $20,000) was but $6,258.80. In other words, that this last sum was the amount of insurance represented by the policies in question on the property in the building where the fire occurred, and that under the seven policies they were required to pay only the proportionate share of the loss which this $6,258.80 bore to the entire insurance on the property in the building in question, viz., $95,258.80, which sum was $2,342.72.

We think there are two answers to this contention and the first is that complainant’s property cannot be said to be located in two separate buildings within the meaning of the policies or within any other meaning. While the case was tried on that theory, and no complaint is made by the complainant in this regard, yet we are of the opinion that we are warranted in holding that the property must be considered as at one location and in either view the amount recoverable from the defendants would be substantially the same. The undisputed evidence shows that complainant occupied a space on the third floor of a building on West Lake street where it conducted its business; that it needed more space and rented floor space of a building immediately adjoining, the floor being on the same level as that occupied by the complainant, and these two spaces were connected by a door through the wall of the building. The business was conducted as a single business at one place; therefore the first paragraph quoted in the policy, while it might appear on the trial there was no mistake in regard to this paragraph, yet we think it was inapplicable to the facts in the case, because there was but one space where complainant’s property was located. Moreover, we think it was the understanding of both parties, as appears from the policies involved, that the property was considered as located at one place. A reference to one of these policies we think will be sufficient. At the top appears in large letters: “Home Fire and Marine Insurance Company. Amount $2500.00. Bate .442 Premium 11.05. In Consideration of the Stipulations herein named of eleven and .05/100 Dollars premium, Does Insure Edgar S. Kiefer Tanning Co. . . . against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding Twenty-Five Hundred Dollars to the following described property while located and contained as described herein, and not elsewhere.”

All of the foregoing is in large letters. Then is attached a rider, describing the property, which is printed in smaller type, and continues as follows: “all while contained in or attached to the brick” (brick is written by typewriter in a blank space). Then follows printing of small type, which is: “building or buildings, and additions, adjoining and communicating, and on and under sidewalks and areas pertaining to same, . . . known as Nos.” Then there is a blank space in which there is typewritten “219-221-223-225 West Lake Street,” Chicago. Then follows small printed matter on the same rider, including paragraphs one and two above quoted, and on the second page of the policy there are about 120 lines of small printed matter, near the bottom of which page appears paragraph three above quoted.

Why an insurance policy should not all be written on one page we are unable to understand. Certainly a policy of that length could be so drawn as to contain all the essential elements required to make a clear and concise contract.

We think it obvious from a physical examination of the policies, and from the attendant circumstances, that complainant thought it was insuring its property for the face of the policies mentioned. And, while it has been said that where .one has fire insurance policies in his possession he is presumed to know all of the provisions and conditions they contain, yet we know as a matter of fact this is not true. The policy specifically referred to above would lead complainant to believe it was getting $2,500 insurance on its property. It did not know until after the fire that this was to be whittled down until it almost reached the vanishing point, defendants contending that it was only liable on this policy of $2,500 for $292.84. If this is the effect to be given to this and the other policies involved, we think it a misnomer to refer to them as insurance policies. As Mr. Justice Matchett, in delivering the opinion of this court in the case of Hancock v. National Council of Knights and Ladies of Security, 222 Ill. App. 647, in construing the defendant’s liability under a “benefit certificate” issued by it, said, “If it was the intention of the company that each answer should be so considered, then it would seem that ‘Beneficiary Certificate’ was a misnomer for the contract delivered.” Here complainant was buying $20,000 worth of insurance covering his property of more than $120,000. He paid the same rate of premium for this as he paid for the other 29 policies. Twenty-seven of

these policies were blanket policies and two of them contained the “Average Clause” provision, which provision was disregarded by the two companies in ascertaining the amount they were required to and did pay. In view of the circumstances disclosed by the undisputed facts, the policies ought not to be construed so as to relieve the defendants of a great part claimed to be due under the policies, unless there is a compelling reason. The defendants contend that there is such reason; that the court erred in permitting the witness, Lang, to testify as to the meaning of the policies because this was a question of law for the court. Lang was a fire insurance adjuster and acted for the adjustment bureau in apportioning the losses between the several insurance companies on account of the losses caused by the fire, which the complainant sustained. He testified that after agreeing upon the amount of the loss, the adjuster apportioned the claim among the policies as they were written and by this apportionment the complainant would not receive reimbursement up to the amount of the losses as agreed upon, because of “non-concurrencies in the insurance policies”; that in the apportionment of such losses there was no established uniform method of non-concurrent insurance. “I consider that this insurance was non-concurrent insurance, because the policies were not all exactly alike.” He then testified that in arriving at the liabilities of the several companies they took the face of the policies — $89,000—issued by the 29 companies and $20,000 issued by the seven defendants and treating the property as being located in two buildings, the seven defendants’ liability would be $6,258.74, which was the amount fixed by the decree.

A reading of this witness’s testimony discloses the fact that it would be of great assistance to the court in arriving at the proper construction of the policy, and therefore we think it was competent.

The policies in suit being construed as nonconcurrent, which we think the court was justified in holding, the decree was right. In a book entitled “The Fire Insurance Contract” published under the auspices of the Insurance Society of New York, Mr. W. N. Bament, one of its contributors, and a general adjuster, said (p. 539): “An apportionment of losses under non-concurrent policies has commanded the attention of the courts as well as that of the best legal and lay minds in the fire insurance business for nearly a century, and although many rules have been devised for the apportionment of losses where policies are nonconcurrent, no rule of universal or even general application has been found, and the prospect of discovering the philosopher’s stone is as remote as ever. All the courts which have passed upon the question have held that the first requisite of any method of apportionment must be the insured’s protection to the full extent of his rights under his policies; and any method, which in a given case, fails to afford him this just measure of indemnity, must give place to another that will. This is eminently proper, because other insurance is taken out by the insured for his own benefit and not for the benefit of co-insuring companies. He pays the premium and consequently it is his interest which should be the prime consideration. The benefit accruing to co-insuring companies is and should be regarded as a piece of good fortune and merely incidental. ’ ’

And in Richards on Insurance, 3rd ed., page.438, the author, in discussing the interpretation of insurance policies, says: “One principle, however, the courts seem to hold in common, to wit: that unless the express phraseology of the policies prohibits, the contribution clause ought not to be so applied as to diminish the protection of the insured; since usually the insurer fixes the amount of his premium regardless of other insurance, and if after the fire he happens to find other insurance which relieves Mm in part from Ms liability, it is a piece of pure good fortune. His principle engagement is to pay the loss in full up to the face of his policy, and the insured has given no promise to take out or keep up other insurance. ’ ’

From the foregoing and other authorities, it is clear that in construing insurance policies as to the apportionment of losses, the question involved is still in great doubt; but as stated, the first requisite in the construction of such insurance policy must be the protection of the insured. In the instant case the 29 insurance companies, the face of whose policies aggregated $89,000, have paid their proportionate share of the loss, and unless the seven defendants are also required to do so, the complainant will not be paid the full amount of its loss, namely $35,655.53, although its property was worth more than $120,000. Under the authorities such a construction ought not to be given the policies in suit.

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

Affirmed.

McSttrelt and Matchett, JJ., concur.


author: Mr. Justice McSurely

text:
    Michael Nugent, Appellee, v. George D. Waters, Appellant.
    Gen. No. 35,809.

      Opinion filed May 16, 1932.
    Miller, Gorham, Wales & Adams, for appellant; Edward R. Adams and Herbert C. De Young, of conn-
    Finn & Miller, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendant appeals from a judgment for $5,500 entered upon verdict in a case in which plaintiff sought to recover damages for injuries received by the alleged negligent management of defendant’s automobile. The only point presented by the defendant relates to the action of the trial court in declining to consider instructions offered by the defendant and to mark them either “given” or “refused.”

Defendant tendered 14 instructions. The court gave as his reasons for refusing to consider them, that from his experience he knew that many instructions “are duplications, erroneous, and are merely presented for the purpose — and are presented for the purpose of getting instructions in duplication whereby the jury are instructed to find in words the defendant not guilty, and that there is no reason for the Court’s examination, as counsel is well aware of, having been informed all during the trial of the case that in eight instructions he could well place everything to be considered by the jury on a case of negligence.”

The remarks about “eight instructions” refer to a limitation made by the court in a prior case. There was no limitation upon the number of instructions in the instant case. The court further stated that he had taken this attitude of limiting the number of instructions for some three or four years previous, and that it had been his policy to estimate the number of instructions which would cover all points of law upon which the jury should be instructed in a particular case. It was also intimated that he was of the opinion that this matter should be regulated by the courts- and not by the legislature.

Section 74 of the Practice Act, Cahill’s St. eh. 110, li 74, is as follows :

“When instructions are asked which the judge cannot give, he shall, on the margin thereof, write the word ‘refused,’ and such as he approves he shall write on the margin thereof the word ‘given,’ and he shall in no case after instructions are given, qualify, modify, or in any manner explain the same to the jury otherwise than in writing. Exceptions to the giving or refusing any instruction may be entered at any time before the entry of final judgment in the case.” This statute has been declared constitutional. People v. Kelly, 347 Ill. 221.

Is the statute mandatory? In the early case of Cook v. Hunt, 24 Ill. 536, opinion by Mr. Justice Breese, it was held that this statute is “directory to the court and should be obeyed.” In Kepperly v. Ramsden, 83 Ill. 354, it was held to be “obligatory on the court to mark all instructions asked either ‘refused’ or ‘given,’ and it is believed a rule of court that would relieve the judge from that duty in his discretion, would be in contravention of the statute declaring the duty.” In Chicago City Ry. Co. v. Sandusky, 198 Ill. 400, ‘ ‘ a hard and fast rule that instructions shall be limited to a given number” was regarded as unreasonable, and further, “any rule which would authorize the refusal of an instruction otherwise proper to be given, on the ground, alone, that as many instructions as the rule allowed had been given, could not be defended.” In Osgood v. Skinner, 211 Ill. 229, the court said, “Parties have the privilege of tendering such instructions concerning the law as they may deem necessary, and the Practice act requires the court to mark them as given or refused, but only authorizes exceptions to the giving or refusing of an instruction.” We find no cases holding that the trial court may refuse to consider instructions on the ground that they are numerous or contain duplicatés and repetitions. If the instructions are more than are necessary to instruct fully as to the law, the superfluous instructions should be marked “refused.”

This is not a case where through inadvertence the court failed to mark an instruction which was in fact given, or to mark an instruction “refused” which was not given. Calef v. Thomas, 81 Ill. 478; Leman v.. United States Fidelity and Guaranty Co., 137 Ill. App. 258. In the instant case the court, for the reasons stated by him, refused to consider or mark any of the instructions tendered by defendant.

The plaintiff first argues that he was entitled to a directed verdict and hence the action of the trial court with reference to instructions is unimportant. Plaintiff was not entitled to a directed verdict. The evidence of defendant, contrary to that of plaintiff, tended to show that while driving his automobile north on Ashland avenue, another automobile going alongside on his right suddenly made a left turn in front of him, forcing him towards the left and consequently striking the plaintiff, who was on the cross-walk of an intersecting street. The question of negligence involved weighing the evidence and was for the jury to determine.

It is suggested that defendant has not shown that he was injured by the refusal of the court to consider his instructions. The defendant was entitled to have his theory of the case presented to the jury and we cannot say that he was not injured by refusal of the court to submit his instructions. Wacaser v. People, 134 Ill. 438; North Chicago Street Ry. Co. v. Louis, 138 Ill. 9.

The court gave four instructions for the plaintiff, and on his own initiative gave an instruction purporting to be on behalf of the defendant. This latter would not cure the error in declining to consider any of the instructions tendered by defendant, even if the instruction of the court were not open to the objection that it assumes the negligence of the defendant. We do. not think it necessary to examine the tendered instructions in detail. It is sufficient to say that most of them have been approved as correctly stating the law.

While giving of a large number of instructions has been frequently and properly condemned, yet the trial court is not relieved from the duty of acting upon such as are tendered. It may be desirable that the court should have some power to restrict the number of instructions presented, but in view of the decisions above cited, this must be given through legislative enactment.

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

Reversed and remanded.

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


text:
    Helen Bandet, Appellant, v. Edward M. Burns and Martin J. Hecht, Appellees.
    Gen. No. 35,926.
    Opinion filed May 16, 1932.
    Moloney & Postelnek, for appellant; George H. Moloney, of counsel.
    McKenna & Harris, for appellee Edward M. Burns; James J. McKenna and Abraham W, Brussell, of counsel.

      0 ’Brisk & Hahrahah, for appellee Martin.J. Hecht.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff having received injuries through a collision of automobiles belonging respectively to the defendants, upon trial of her action to recover compensation had a verdict of not guilty as to both defendants under a peremptory instruction to this effect by the court. She appeals from the judgment entered.

The accident happened July 4, 1928, in Chicago on Lawrence avenue, which runs east, near the intersection with Campbell avenue, which runs north and south. The plaintiff, about 60 years of age, was riding as a passenger in the automobile of Martin J. Hecht, a defendant, sitting in the rear seat. The evidence of the defendant Burns tended to show that he was proceeding north on Campbell avenue and came to a stop at Lawrence just south of the cross walk; that he looked to the west and seeing no vehicle approaching made a gradual turn to the east on Lawrence and hacl partially made the turn when the car driven by Hecht coming east at a very fast rate of speed ran into the left front of the Burns car, causing the accident from which plaintiff received serious injuries.

On the other hand, the testimony of Martin J. Hecht and Selma Hecht, his daughter, tended to show that as they were driving east on Lawrence avenue and approaching Campbell avenue, the Burns car was parked on the south side of Lawrence avenue facing east and suddenly and without any warning or signal, when the Hecht car was about 15 feet away, the Burns car pulled out from the curb directly into the side of the Hecht car, throwing the plaintiff violently against the right-hand side of the Hecht automobile in which she was .riding.

It has long been the law that if there is any evidence which standing alone tends to prove the material averments of the declaration, the cause must be submitted to the jury. Libby, McNeill & Libby v. Cook, 222 Ill. 206. A mere statement of the evidence shows that the question as to whether there was any negligence of either or both of the defendants should have been submitted to the jury.

The same thing is true of the question whether plaintiff was guilty of any contributory negligence. Considering her years and her position in the rear seat of the Hecht automobile, it is difficult to see what she could have done toward preventing the collision, especially if, as Hecht and his daughter testified, the Burns car turned suddenly without warning or signal into the pathway of the Hecht car when they were only 15 feet apart.

The declaration alleged that the accident happened July 4,1928, on Lawrence avenue in Chicago, “a short distance east of the intersection” with Washtenaw avenue. The evidence tended to show that the collision took place near Campbell avenue, which is a few short blocks east of Washtenaw; and thereupon plaintiff asked leave to amend the declaration so as to place the accident at or about the intersection of Lawrence avenue and Campbell avenue. The court refused to allow the amendment, apparently upon the ground that to do so would state a new cause of action, and as the motion to amend was made in December, 1931, the statutory one-year limitation had expired. In Zister v. Pollack, 262 Ill. App. 170, construing section 39; chapter 110, Illinois Statutes (Cahill, If 39), we held that this applied to a situation where, through inadvertence the declaration had omitted some allegation which in no way affected the facts or merits of the cause. The object of a declaration is to apprise the defendant of the character of the claim against him. Here, the evidence showed that no one was misled; that all of the parties understood that the declaration referred to the accident happening on the date alleged on Lawrence avenue at or near the intersection of Campbell avenue; that there was no other accident in which these parties were involved at that time or place. Regardless of section 39, we are of the opinion that the amendment did not state a new cause of action. We are of the opinion that plaintiff should have been allowed to amend her declaration and that to refuse this was reversible error.

With the declaration amended, the case presented questions of fact for the determination of the jury, and a peremptory instruction in favor of defendants should not have been given.

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

Reversed and remanded.

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