text:
    Kate Cohen, Appellee, v. Central Republic Trust Company et al., Appellees. Appeal of C. S. Tuttle et al., Appellants.
    Gen. No. 38,432.

      Opinion filed December 16, 1935.
    Rehearing denied December 30, 1935.
    Castle, Williams & McCarthy, of Chicago, for appellants ; Howard R. Brintlinger and Robert R. Hanley, both of Chicago, of counsel.
    Andreen, Winstin & Mead, of Chicago, for appellee Kate Cohen; Mural J. Winstin and Gustav Andreen, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff filed her complaint asking for the appointment of a successor-trustee in a deed of trust conveying premises in Chicago to secure an issue of bonds; she also asked for the appointment of a recéiver of the premises described in the trust deed; some of the defendants, constituting a bondholders’ committee, filed an answer; no evidence was heard, but upon the pleadings the chancellor appointed Howard K. Hurwith a receiver of the premises and al.so appointed him successor-trustee in the deed of trust, and subsequently-entered an order allowing to the attorneys of the plaintiff a sum of $2,500 as their attorneys’ fees for instituting and prosecuting the above entitled cause. The members of the bondholders’ committee, hereafter called defendants, appeal.

The deed in trust ran to Chicago Trust Company as Trustee, which subsequently was consolidated with the Central Trust Company of Illinois, forming the Central Republic Trust Company, which succeeded to the duties of the Chicago Trust Company as trustee under the trust deed. Plaintiff’s complaint does not seek to foreclose the deed in trust, and no foreclosure proceedings have been commenced.

Before answering defendants moved for the dismissal of the complaint. This was denied and defendants argue that this ruling was error.

The complaint alleges that on November 20, 1934, the auditor of public accounts of the State of Illinois took possession and control of the Central Republic Trust Company and thereafter appointed William L. O’Connell receiver, who accepted this appointment and is the duly authorized and qualified receiver of the Trust Company; that because of this receivership the Central Republic Trust Company is incapable' of acting as trustee, and that although default of the mortgagor in the obligations of the trust deed has existed since 1932 the trustee has neglected his duties and has not filed a bill to take the security conveyed by the trust deed. It is pointed out that this allegation is inconsistent with the further allegations that the trustee has been in possession of the premises since the early part of 1932. Moreover, the trust deed makes it mandatory upon the trustee to institute suit only when properly requested in writing by the holders of not less than 25 per cent in amount of the bonds then outstanding.

The complaint alleges “that more than a reasonable time has elapsed within which said parties should have resigned as Trustee under said Trust Deed.” Section 11 of the Banking Act, Ill. State Bar Stats. 1935, ch. 16a, ¶ 11, provides that a receiver of a bank shall “as soon as can reasonably be done,” resign on behalf of said banks all trusteeships. This provision is mandatory. People ex rel. Barrett v. West Side Trust & Sav. Bank, 280 Ill. App. 308. The complaint does not state how long the receiver held the trust without resigning.

There was also a charge that the continued operation and management of the premises by Central Bepublic Trust Company as trustee is harmful and dangerous, and that the Chicago Title and Trust Company, named in the trust deed as successor in trust, had been derelict in failing to take possession of the premises. It is properly pointed out that these are conclusions only and that the latter allegation is inconsistent with the previous allegation that neither the Central Bepublic Trust Company nor the receiver, O’Connell, had resigned as trustee. Manifestly the successor in trust could not act prior to the resignation of its predecessor.

The complaint further alleges, on information and belief, that the ‘ ‘ Central Bepublic Trust Company, by its officers and agents, and City National Bank and Trust Company of Chicago, and the Chicago Title and Trust Company have entered into an agreement whereby the said Central Bepublic Trust Company is to resign as Trustee and the Chicago Title and Trust Company named as Successor in Trust ... is also to resign on condition that City National Bank and Trust Company of Chicago be appointed Successor Trustee. ’ ’ In view of the fact that there was a receiver for Central Republic Trust Company, who must resign the trust on behalf of that institution, he must be a party to any agreement for the succession of the trust. But the complaint does not charge that he was a party to this agreement.

There is no charge that the trustee abused its discretion in the exercise of its duties, nor that there was a vacancy in the office, of the trustee or that the named successor in trust is incompetent, nor that there will be any failure of trust if a successor-trustee is not appointed, and there are no charges that the trustee has been guilty of fraud or gross mismanagement. The allegations are very much like those involved in the recent case of Bauer v. Lindgren, 279 Ill. App. 397, where it was held that the allegations of the bill were not sufficient to support the findings of the court. The general rule applied to the removal of trustees is that such removal should not be made unless there are acts or circumstances endangering the trust fund, such as mismanagement, incompetency or dishonesty. Wylie v. Bushnell, 277 Ill. 484.

The theory of the complaint seems to be that upon the appointment of a receiver for the Central Republic Trust Company, ipso facto the trust company became disqualified from performing its duties as trustee and that there was a vacancy. This is not the law. It has been held to the contrary in Belofsky v. Johnson, 266 Ill. App. 351, and in the recent case of Dillon v. Elmore, 361 Ill. 356, where it was held that the appointment of a liquidating receiver does not cause the actual dissolution of a banking corporation the instant such receiver is appointed, but the corporation continues as a legal entity and the receivership does not automatically create any vacancy in its trusteeships, but the bank’s status as trustee is maintained and con-tinned until the trusteeship has been resigned in its behalf by the receiver, as provided in section 11 of the Banking Act.

The court might properly have sustained the motion to dismiss the complaint as failing to state facts indicating a necessity for the intervention of a court of equity, or could have permitted plaintiff to amend the complaint and make more particular the allegation as to the length of time between the appointment of O’Connell as receiver of the trustee bank and the date of filing the bill so that the court might determine whether the receiver had failed to resign within a reasonable time. This is upon the assumption that the chancellor in this cause had the power to order the resignation of the receiver. People ex rel. Barrett v. West Side Trust & Sav. Bank, supra.

We fail to understand upon what theory the court appointed a receiver. Plaintiff says that the receiver was not appointed by virtue of any provisions of the trust deed but appointed as a receiver for the trust pendente lite. But O’Connell was already the receiver for the trust company, and to warrant the appointment of another receiver for the particular trust required a showing either that there was a vacancy in the trust or that the existing trustee was committing waste or misappropriating the trust property. There was no showing in these respects. The appointment of a receiver ousted the existing trustee and determined in advance the issue raised by the pleadings. It was error for the. court to appoint a receiver.

The defendants in their answer alleged that they were the owners and holders of bonds and interest coupons secured by the trust deed'in question in the amount of $97,300, out of an outstanding principal indebtedness of $104,500. They deny that plaintiff is a bona fide owner of three bonds of $100 each, as she alleged, and defendants assert that she purchased the certificate of deposit representing these three bonds from a broker subsequent to the default of the bonds for the'price of 10 cents on the dollar, and that such purchase was made within approximately 30 days prior to the-institution of these proceedings, and that this purchase was made for the purpose of instituting these proceedings and gaining control of the property involved.

These allegations raised a vital question as to the bona fide ownership by plaintiff of the bonds and her right to maintain this suit, which should have been considered by the court. In Bauer v. Lindgren, supra, which was a suit to remove the trustee and appoint a receiver, the court refused to disturb the possession of a trustee upon a bill by an alleged holder of one bond. In American Trust & Safe Deposit Co. v. 180 East Delaware Bldg. Corp., 262 Ill. App. 67, this court denied the right of a petitioning bondholder to intervene, saying that courts should be slow to interfere with trustees at the instance of a comparatively small number of minority bondholders. In Guaranty Trust Co. v. Chicago, M. & St. P. Ry. Co., 15 F. (2d) 434, it was said: “They (the courts) will be equally vigilant to see that dissenting bondholders be not permitted to create a maneuvering value in their bonds.” See also Myers v. American Nat. Bank & Trust Co., 277 Ill. App. 378. Counsel for the defendants aptly suggest that this is a case where “the client does not beget the litigation but that the litigation begets the client.” We hold that the chancellor should have investigated the right of plaintiff to file her complaint, and if the defendants’ allegations in this respect are true, should have dismissed the complaint.

As above noted, the trust deed provides that the right to proceed under the trust deed is vested primarily exclusively in the trustee — “and under no circumstances shall the holder of any Bond or Interest Coupon have the right alone or with other holders, to institute any action at law or any suit or proceeding in equity for the purpose of enforcing any payment, covenant or remedy herein or in said Bonds contained or to foreclose this Mortgage, unless Trustee shall, after thirty (30) days ’ request in writing by holders of not less than twenty-five per cent (25%) in amount of the outstanding Bonds and upon having been tendered satisfactory indemnity, have refused to take the action requested or other appropriate action.” Inasmuch as plaintiff, the holder of bonds amounting to $300, even if a bona fide holder, could not possibly exert any valid pressure upon the trustee to take any action, her right to bring this proceeding to have a receiver and successor-trustee appointed in face of the opposition of 93 per cent of the bondholders is not apparent.

Pending these proceedings the Chicago Title and Trust Company, which was named as successor in trust, filed on April 15, 1935, its refusal to accept its appointment as successor-trustee, and on May 23, 1935, receiver O’Connell filed his resignation of the trust on behalf of the trustee bank. This resignation was pursuant to an order entered by the chancellor in this court. Whether the chancellor had power so to order is not important at present. The resignation of the receiver was effective as of the date it was made. There thus occurred a vacancy in the trusteeship and the court could properly appoint a successor-trustee.

Plaintiff asked for the appointment of Howard K. Hurwith as successor in trust; defendants, together with the owner of the equity, asked that the City National Bank and Trust Company of Chicago be appointed successor-trustee; the chancellor appointed Hurwith and defendants argue it was an abuse of discretion for the court to appoint an individual trustee contrary to the desire of a majority of the bondholders and the owner of the equity. It is clear from a reading of the trust deed that the right of an individual bondholder to act is denied. Primarily the right of action is in the trustee. If the trustee fails to act the trust deed in many provisions gives an alternative right to act to not less than 25 per cent of the bondholders. In no instance is the right to enforce any covenant given to an individual bondholder whose holdings do not represent at least 25 per cent of all outstanding bonds. From these provisions it is clear that it was the intention of the mortgagor and the bondholders that control should be vested, not in an individual bondholder, but in a representative body. Such agreements have been approved by the courts. Pearlman & Co. v. Lincoln-Belmont Bldg. Corp., 251 Ill. App. 135; Kobs v. Kraemer Bldg. Corp., 266 Ill. App. 597 (Abst.). While these provisions are not binding upon the chancellor, yet they should be given great weight. The discretion of a chancellor in such a case is not an arbitrary discretion but is subject to well known and clearly defined rules. In Steger v. Northen, 229 Ill. App. 529, it was said that courts should always give due weight to the wishes of those chiefly interested and that the courts will have regard to the wishes of the person by whom the trust has been created if expressed in the instrument or clearly to be collected from it.

Defendants by their answer assert that the Central Republic Trust Company as trustee had been in possession of the premises up to the time of the appointment of a receiver by the court, had managed the premises in a careful and proper manner, conserving the income therefrom, and had made large payments on delinquent taxes on the premises; that because of the prompt and proper action taken by the trustee no receiver was ever appointed for the premises; they furtker assert that they were formerly officers or employees of the Central Republic Trust Company and are acquainted with the property and with the problems relating to the reorganization thereof; that they hold 93 per cent of the outstanding unpaid bonds; that they are now officers or employees of the City National Bank and Trust Company of Chicago, a duly authorized trust company authorized to execute trusts in the State of Illinois, and well qualified and best fitted to carry on the duties of trustee, originally imposed upon the Chicago Trust Company as trustee under the trust deed; they deny that there was any agreement or conspiracy, as charged by plaintiff, to exclude any persons or corporations to act as successor-trustee ; they asserted that if an independent trustee were appointed, because of his or its inexperience and lack of acquaintance with the situation greater expense would result to the bondholders than if the City National Bank- should be appointed as successor-trustee.

The owner of the equity, Alpha L. Eberhart, filed his answer, representing that the management of the property by the Central Republic Trust Company as trustee has been efficient and economical and for the benefit of the bondholders and himself, and that the income of the premises has been wholly applied to the operation of the building, the payment of delinquent taxes and the installation of certain necessary equipment; that he has been in negotiation with the bondholders’ committee through City National Bank and Trust Company of Chicago for a reorganization and that a plan to this end has been formulated and is about to be submitted, under the terms of which the security and rights of the bondholders and himself will be equitably preserved, and that in view of the progress of this plan of reorganization through the instrumentality of City National Bank and Trust Company he represents that it would be to the best interests of himself, as the owner of the equity, and of the owners of the outstanding bonds, that the City National Bank and Trust Company of Chicago be appointed successor-trustee under said trust deed.

The duties of a trustee of a land trust after default in the payment of the mortgage indebtedness consist largely in acquiring the property, operating and conserving it during the period of acquisition, and aiding in the disposal of it to the best advantage of all parties concerned. Such duties necessarily call for personal negotiations with a large number of persons who have various interests in the property. For this reason the perpetuation of the trusteeship is highly desirable. Unless there are some serious objections by a substantial number of the interested parties there is no reason for appointing a trustee unfamiliar with the problems and circumstances confronting him. In In re Estate of Beckwith v. Cooper, 258 Ill. App. 411, the court said that where the appointment of a particular person will engender ill-feeling and prevent beneficial co-operation in the administration of the trust, the appointment should not be made, citing Lorenz v. Weller, 267 Ill. 230.

Plaintiff says that the court was justified in selecting a trustee of its own because the parties could not agree upon a suitable person. It is doubtful whether the selection made can be called the selection of the court alone. The person appointed was proposed by plaintiff. From an exhibit attached to a petition subsequently filed by plaintiff it appears that the individual bondholders were polled and asked to state their preference as to a successor-trustee. No one resisted the selection of City National Bank and Trust Company by the bondholders’ committee and the owner of the equity, or suggested the appointment of another trustee. The court seemed to have acted upon the objections made in argument by plaintiff’s attorneys. In view of her doubtful standing in court and her meager interest, these objections should not have influenced the court. We hold that it was an abuse of discretion to appoint Howard K. Hurwith successor-trustee in opposition to the expressed recommendation and desires of the owner of the fee and the holders of 93 per cent of the outstanding bonds, and that the chancellor should, in accordance with this request, have appointed the City National Bank and Trust Company of Chicago as successor-trustee. Strauss v. Rogers Park Bldg. Corp., 281 Ill. App. 612 (Abst.).

Attorneys for the plaintiff asked for and were allowed, out of the estate, $2,500 as their fees in the matter. The claim of $2,500 attorneys’ fees to protect an investment by the client of $30 rather suggests that the fees were the main objective motivating the litigation. Highley v. Deane, 168 Ill. 266, involved the question whether the costs of a receivership improperly ordered should be taken from the receivership funds. The court held that this should not be, saying: “Such a rule would imply that an innocent party, after vindicating his right to his property, might have it taken to pay an expense resulting from the wrongful act of the defeated party. Where the receivership is procured under the assertion of an unjust and wrongful claim, as finally found by the court, and the receiver is authorized to take possession of the property of another on such wrongful assertion, the court can protect the injured party by returning the property of which he was divested without its being diminished to pay receiver’s charges.”

In McAnrow v. Martin, 183 Ill. 467, a receiver improperly appointed was denied compensation for himself and for his attorney, the court holding that the attorney must look to the person who employed him for compensation. Feldman v. Illinois State Pawners Ass’n, 279 Ill. App. 476, held that the receiver improperly .appointed should look to the plaintiff for his compensation and fees.

Applying the principle of these cases, we hold that the court should not have allowed the claim of plaintiff’s attorneys for fees. The record tends to support the charge that the proceedings were not instituted in good faith to secure any rights of the plaintiff, but rather to obtain attorneys’ fees. There is ground for the suggestion that the proceedings are champertous in nature.

For the above reasons the orders appointing Howard K. Hurwith receiver and successor-trustee, and the order for the payment of attorneys’ fees for the attorneys for plaintiff are reversed; the request to appoint the City National Bank and Trust Company of Chicago successor-trustee should have been allowed; the cause is remanded for further proceedings consistent with what we have said in this opinion.

Reversed and remanded.

Hatchett and O’Connor, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Matchett

license: Public Domain

text:
    Charles Liebman, Plaintiff in Error, v. The People of the State of Illinois, Defendant in Error.
    Gen. No. 38,313.

      Opinion filed December 16, 1935.
    Charles Liebmah, pro se.

    No appearance for defendant in error.
   Mr. Justice Matchett

delivered the opinion of the court.

By this writ of error Charles Liebman seeks to reverse an order of the superior court of Cook county, which found him to be guilty of criminal contempt of court and imposed a fine of $50. The diminutive record shows that Liebman appeared before Judge Joseph B. David on May 28,1935, as attorney for the plaintiffs in a case then pending in that court; that an order, dismissing the suit at plaintiffs’ costs for the failure of plaintiffs to comply with a prior order requiring them to testify before a notary public was entered.

The record contains this cryptic statement: “On motion of court, it is ordered that Charles Liebman, Esq., attorney for plaintiffs, is found guilty for having made contemptuous .remarks to the court and is fined $50 for the contempt of this court.” There has been no appearance in support of the order. Manifestly, it must be reversed. The contempt of which Liebman was found guilty was criminal in its nature. The proceeding should have been in the name, or by the authority, of The People. Tunnell v. People, 253 Ill. App. 422. This proceeding was not. The order should have set forth the facts on which the finding of contempt was based. People v. Rongetti, 344 Ill. 107; People v. Feinberg, 266 Ill. App. 306; People v. Bain, 268 Ill. App. 192. This record does not state any such facts. The cases cited also hold that a finding of this kind should show that the person found guilty was present in court at the time the punishment for the offense was imposed. There is no such showing here. The order leaves this court without knowledge of the supposed contemptuous words. It should have recited them. For aught this record discloses, the actual words used may have been complimentary in their nature, rather than otherwise. If so, punishment should not have been inflicted.

The order is reversed.

Order reversed.

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


text:
    Paraskeitz Holowaty for use of Paul Cherka, Appellee, v. The Prudential Insurance Company of America, Appellant.
    Gen. No. 38,328.

      Opinion filed December 16, 1935.
    Rehearing denied December 30, 1935.
    Hoyne, O’Connor & Rtjbinkam, of Chicago, for appellant ; Nathaniel Rtjbinkam and William S. Allen, of Chicago, of counsel.
    John J. Rooney and William H. Kailes, both of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

In an action of garnishment brought by Paraskeitz Holowaty, judgment debtor, for the use of Paul Cherka, judgment creditor, against the Prudential Insurance Company of America, and upon trial by the court there was on February 19, 1935, a finding that the insurance company was indebted to Mrs. Holowaty in an amount in excess of the original judgment in favor of her creditor; that $100 of this indebtedness was due and payable on December 9, 1934, and $100 on the 9th day of each month thereafter until the approximate sum of $5,400 should have been paid. Judgment was therefore entered against the insurance company for $4,405 with costs, and it was ordered that execution issue for the amount of $300 (being the sum then actually due from the insurance company) forthwith, and that execution issue for $100 on March 30, 1935, and for a like amount on the 30th day of each month thereafter until the judgment of Cherka should be paid in full.

The obligation of the insurance company to Mrs. Holowaty is based upon a policy issued by the company to Stefan Holowaty, her husband, on January 4, 1927, in which she was named as beneficiary. This policy became a claim upon the death of the insured November 9, 1934. By the terms of the policy the proceeds were payable to Mrs. Holowaty in 60 monthly instalments of $100 each, each instalment with interest amounting to $100.33; the first instalment became payable December 1, 1934, and the remaining instalments on the first day of each month thereafter. The policy provided that the company should not commute any of the instalments payable thereunder after the death of the insured without the previous written consent of the insured. ' The insured did not give this consent.

The garnishment summons was served November 13, 1934, and the garnishee insurance company filed an amended answer February 15, 1935. A copy of the policy stipulated to be correct is in evidence, and the parties also stipulated that the only question before this court is an interpretation of the provisions of the policy. By the terms of the policy the insured retained the right to change the beneficiary. Other material provisions were:

“. . . Any instalment or instalments payable hereunder shall be unassignable after this Policy shall become a claim by death.

“The commuted value of the Monthly Instalments of Insurance payable hereunder is Fifty-five Hundred and Seventy Dollars ($5570). The commuted value of the Monthly Instalments of Accidental Death Benefit that may become payable, as provided, is equal to the commuted value stated above. If there be no Beneficiary, original or substituted, when the Policy becomes a claim by death, the Company will pay the commuted value of the instalments payable to the executors, administrators or assigns of the Insured, in one sum, in lieu of the instalments. If the Beneficiary, original or substituted, shall survive the Insured but die before receiving all the instalments pay-. able under this Policy and if there be no contingent beneficiary at that time, the unpaid instalments will be commuted at the rate of three and one half per cent, per annum compound interest and paid in one sum to the executors or administrators of such Beneficiary.”

The precise question for determination seems to be Avhether the obligation of an insurance company, such as exists under this policy, can be reached by the process of garnishment under the garnishment statute. Ill. State Bar Stats. 1935, ch. 62, secs. 1-29. Section 5 of that act provides in substance that it shall be the duty of every garnishee to answer with respect to “choses in action, credits and effects of such defendant, and the value thereof, . . . from him due and owing to the said defendant at the time of the service of said ivrit, or at any time after, or which shall or may thereafter become due.” Section 7 provides that if the garnishor alleges that the garnishee has not truly discovered “choses in action” or “credits” from him due and oAving to the defendant at the time of the service of the writ, or at any time after, or which shall or may thereafter become due,” the court shall proceed to try the cause, etc.; section 13, that the garnishee shall he allowed to retain or deduct out of effects or credits in his hands all demands of which he could have availed himself if he had not been summoned as garnishee, “whether the same are at the time due or not,” and shall be liable only for the balance after all adjustments, not including unliquidated damages for wrongs and injuries, have been- made; section 16, that the judgment against the garnishee shall acquit him from all demands by the defendant “for all goods, effects and credits paid, delivered or accounted for by the garnishee by force of such judgment”; section 19, that when a judgment is rendered against any garnishee and it shall appear that “the debt from him to the defendant is not yet due, execution shall not issue against him until twenty days after the same shall become due, unless the party asking the same, or his agent, shall make oath that he believes the debt will be lost unless execution issue forthwith.”

■ Sections 24 and 25 give to the court equitable power to compel delivery of the property discovered and the sale thereof, including the power, to attach and punish as for a contempt.

A consideration of the garnishment statute, as a whole, indicates that its purpose is to compel by suit at law a judgment debtor to assign to his judgment creditor such of his property as is not exempt from execution to the extent provided by the statute, and only to that extent. It is in essence an action at law in the name of the debtor for the use of the creditor. It does not reach merely equitable interests.

It is contended by the insurance company that upon the death of the insured the company became the trustee of a spendthrift trust in favor of the beneficiary, the proceeds of which could not be' reached by garnishee process. The judgment creditor contends that no such trust was created, because the insurance policy, so construed, would amount to a testamentary disposition of the insured’s property, which would be invalid for nonconformity with the statute of wills. He says that in order to establish a valid trust the grantor must divest himself of any control of the subject matter and cites Oswald v. Caldwell, 225 Ill. 224, where, our Supreme Court, considering the question of whether a deed to certain land, together with writings concerning the same, constituted a trust, held that the same was testamentary in its nature and therefore void. He says the policy cannot be construed as creating a trust, because the insured retained control over it until his death; that he retained the right to change the beneficiary in the policy and the right to assign the policy; that he could defeat the purpose of the policy by refusing to pay any premiums and could borrow money on the policy without the consent of the beneficiary.

The Supreme Court has held directly contrary to these contentions in Gurnett v. Mutual Life Ins. Co., 356 Ill. 612, where as against a creditor it was held that a trustee named by the insured was entitled thereto, although the insured retained the right to change the beneficiary, reserved the power to revoke the entire trust and also retained the power to defeat the trust by pledging the policy for an indebtedness by assignment thereof. The Supreme Court of Connecticut, in a well considered case decided thereafter, reached the same conclusion. Sigal v. Hartford Nat. Bank & Trust Co., 119 Conn. 570.

■ The creditor contends that it is essential to the creation of a spendthrift trust that the beneficiary shall be entitled only to the income derived therefrom and that it cannot exist when any part of, the principal may be disposed of for the benefit of the beneficiary. There are authorities which so hold (25 R. C. L. 356, sec. 7; 65 C. J. 233), but this is not the rule in Illinois (Wagner v. Wagner, 244 Ill. 101), and it is difficult upon principle to sustain this contention.

The creditor also urges the point that although the insurance contract provides that no assignment shall be made, this does not prevent an involuntary assignment, which he says is not prohibited by the insurance contract. He cites In re Bush, 126 Fed. 878, a case which involved the question of whether the trustee of a bankrupt took title to a lease held by the bankrupt, which was by its terms unassignable, except by the written consent of the lessor. That case involved a question, arising under the bankruptcy statute and is not applicable where, as here, the statute to be construed is the Garnishment Act.

The creditor also contends that the quality of assignability is not the test of whether a debt or chose in action may be reached under the Illinois Garnishment Act. He argues that the power of garnishment is derived from the act itself and that since this limitation is not prescribed by any particular provision of the act, it should not be held to exist. We hold that in the absence of a specific provision in the act authorizing it, the process of garnishment is not applicable to claims which are not assignable. Indeed, the general rule seems to be that claims which are not assignable are not subject to garnishment. St. Joseph Mfg. Co. v. Miller, 69 Wis. 389. In Crossman Co. v. Rauch, 263 N. Y. 264, construing an insurance policy which contained provisions similar to those in this policy, it was held, reversing the Appellate Division in Crossman Co. v. Rauch, 238 App. Div. 299, that the proceeds were not subject to garnishment.

The creditor says that the decision of the Hew York court was based upon section 15 of the Personal Property Law of that State (Consol. Laws, N. Y., ch. 41) which provided that such claims against insurance companies should not be liable to legal process except for necessaries. It is true that the New York court held that the provisions of the New York Personal Property Law were applicable but also held that the fund was not subject to garnishment process regardless of the statute. The court said:

“. . . such payments are exempt for the further reason that the agreement expressly provides that ‘the beneficiary cannot assign or commute the payments herein provided.’ ‘The payments herein provided’ are the monthly payments sought to be reached under the execution. As they cannot be voluntarily assigned, they cannot be subject to levy by execution.” The Illinois courts have held likewise irrespective of any statute. The leading case is Steib v. Whitehead, 111 Ill. 247, where a will which provided that the trustee should pay over the remaining rents and income in cash to the daughter of the testator “and not upon any written or verbal order, nor upon any assignment or transfer” was held to make the fund not subject to garnishment process. To the same effect are Congress Hotel Co. v. Martin, 312 Ill. 318; Wallace v. Foxwell, 250 Ill. 616; Jouvenat v. Continental Nat. Bank & Trust Co., 253 Ill. App. 400; Von Kesler v. Scully, 267 Ill. App. 495; Hopkinson v. Swaim, 284 Ill. 11.

In the Jouvenat case the testator made a bequest to his son of a fund of $8,000, which he directed should be kept by the executor invested and accumulating for three years after his death, then to be paid at the rate of $300 quarterly to Jules W. Jouvenat, or his legal heirs. The bequest provided: “Said fund shall not be assignable by said Jules W. Jouvenat or his said heirs.” It was conceded that the clause created a spendthrift trust, but it was argued that the terms of the trust were,not sufficient to put the trust property beyond the reach of creditors of the beneficiaries, upon the theory that the provision against assignment referred to. a voluntary transfer and not to a transfer by operation of law. The opinion by Mr. Justice Barnes points out that the only question at issue was whether trust property could be reached under operation of the law of garnishment as it exists in this State. The court said:

‘ ‘ One of the primary principles in this class of cases is to ascertain and carry out the intention of the testator. (Steib v. Whitehead, 111 Ill. 247; Congress Hotel Co. v. Martin, 312 Ill. 318.) Looking then to the provision in question it is manifest that the testator intended that a fund of $8,000 should be set aside' and held in trust for investment and accumulation therefrom for three years after his death before the beneficiary should receive any payment or benefit therefrom, and that the person or persons to whom payments thereafter should be made would depend upon whether his son Jules would then be alive. It is apparent, therefore, that no legal claim to the fund or proceeds therefrom could be asserted by Jules prior to the lapse of said three years, which have not yet expired. The character of the fund, therefore, was not such as could be reached by garnishment. Not only was Jules Jouvenat’s interest therein equitable in character and therefore not subject to garnishment (May v. Baker, 15 Ill. 89; Webster v. Steele, 75 Ill. 544), and not such an indebtedness as could have been recovered by the judgment debtor in his own right and for that reason not subject to garnishment (Hibernian Banking Ass’n v. Morrison, 188 Ill. 279) but to constitute an indebtedness or ‘legal debt due or to become due’ that is subject to garnishment under our statute it must ‘be owing absolutely and subject to no contingency.’’ (Hanover Fire Ins. Co. v. Connor, 20 Ill. App. 297; Pressed Steel Equipment Co. v. Thornburgh Pressteel Co., 228 Ill. App. 1.) ”

These cases, while in some respects distinguishable, are in principle, we think, controlling here, and therefore upon reason and authority we hold that the proceeds of the policy constituted a fund in the nature of a trust fund for the benefit of the judgment debtor, which is not subject to garnishment under the statutes of this State. This seems to have been the intention of the company and the insured.

For these reasons the judgment of the trial court is reversed.

Reversed.

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


text:
    Joseph Malewski and Helen Malewski, Appellants, v. Justin Mackiewich, Appellee.
    Gen. No. 38,355.

      Opinion filed December 16, 1935.
    Wachowski & Wachowski, of Chicago, for appellants ; J. J. Buckley, of Chicago, of counsel.
    Johs T. Zuris and Earl J. Walker, both of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

In an action brought by plaintiffs for alleged fraud and deceit in the sale of a note for the sum of $6,000, secured by a trust deed, and upon trial by jury, at the close of all the evidence, defendant made a motion for an instructed verdict in his favor. In conformity with paragraph 3 of section 68 of the Civil Practice Act (Ill. State Bar Stats. 1935, ch. 110, p. 2447), the court reserved its decision on the motion and submitted the cause to the jury, which returned a verdict for plaintiffs in the sum of $3,781.62. Defendant then made a motion for a judgment in his favor, notwithstanding the verdict, and the court being of the opinion that plaintiffs had not produced sufficient evidence to sustain its allegations of fraudulent representations, granted the motion and entered judgment in favor of deféndánt. The court certified in the record that-the amount of damages proved was $3,781.62 as found by the verdict of the jury, and that judgment should be entered for that sum in favor of plaintiffs and against defendant if it should be determined upon appeal that plaintiffs produced sufficient evidence to sustain the allegations of the complaint as to fraudulent representations in the sale of thé note. From that judgment plaintiffs appeal, and defendant, assigning crosS errors, argues not only that the judgment of the trial court should be affirmed but further, that if this court is of a contrary opinion on that issue, judgment should not be entered here in favor of plaintiffs but the cause reversed and remanded on account of errors in the course of the trial, which defendant asserts, in case of reversal, would require the cause to be submitted to another jury.

The first and controlling question in the case, as it appears to us, is whether the court erred in entering judgment for defendant notwithstanding the verdict,— a question which, as already stated, arises under the procedure provided by the Civil Practice Act and is to be distinguished from a judgment non obstante veredicto, as the same was in appropriate cases granted under the practice at common law. At common law, such motion arose upon the pleadings and was determined by an examination thereof. Under the Civil Practice Act, as here, the question arises upon an examination of the evidence and the determination from such examination of whether upon all the evidence, plaintiffs, as a matter of law, had a right to recover.

As already stated, the action of plaintiffs is for fraud and deceit on account of alleged false representations of defendant in the sale and delivery to plaintiffs of a note for $6,000, which was dated July 21, 1924, due five years after date (extended 10 years after date), made by Zigmont Dobrowolsld and Annie Dobrowolski, his wife, drawing interest at the rate of six per cent per annum. The note, with others, was secured by a trust deed, conveying as security for this and other indebtedness the real estate known as 2324 South Leavitt street, Chicago. Defendant was president of the Standard Federal Savings & Loan Association engaged in the mortgage and insurance business, with offices at 2342 South Leavitt street, Chicago. The transaction took place at his office January 17, 1931. Plaintiffs and defendant were Lithuanians, and the evidence tends to show that plaintiff Malewski spoke English only with considerable difficulty. Two or three prior transactions had taken place between the parties who were mutually interested in a building and loan association. Plaintiff Malewski and defendant had been acquainted for about 20 years.

The evidence shows that Malewski inquired of Mackiewich as to whether he had a mortgage for sale on premises nearby; that he wished to transfer his share in the building and loan association for such a mortgage that would pay more interest. Defendant suggested to him, among others, the purchase of a mortgage on the Dohrowolski property situated at 2324 South Leavitt street, only a short distance from the home of plaintiffs, and with this property they were entirely familiar. There is some divergence in the testimony as to what was said at the first interview, but the evidence shows without contradiction that defendant Mackiewich gave to Malewski the opinion of title of the Dohrowolski property prepared by Judge John C. Lewe, and that plaintiff took the opinion with him. Thereafter Malewski returned with his wife and brought with them the proceeds of the shares in the building and loan association and additional money, making a total sum of $6,000. This sum was paid to defendant and plaintiffs were given the note and coupons, the trust deed, extension agreement, the opinion of title already referred to, and an insurance policy covering the building located upon the mortgaged premises. These papers were placed in a safety deposit box, and thereafter as the coupons matured, the same were presented by plaintiffs at the office of Mackiewich, where the note and coupons were payable.

In July, 1932, default was made in the payment of the interest which had accrued. As a matter of fact the note purchased by plaintiffs from defendant was one of a series of six notes, No. 2 being for $3,000 and Nos. 3, 4, 5 and 6 for $1,000 each, the total indebtedness (including No. 1 purchased by plaintiffs for $6,000) secured by the trust deed amounting to $13,000. All of the notes drew interest at the same rate per annum and by their terms matured upon the same date.

The complaint alleges, in substance, that defendant for the purpose of inducing plaintiffs to pay $6,000 for the note “then and there wilfully, maliciously, fraudulently and falsely represented that said note and extension interest coupons represented the total amount of the mortgage indebtedness secured by said trust deed above described, or represented that these plaintiffs were purchasing a first mortgage against said property in the sum of Six Thousand Dollars ($6,000.00).”

The evidence, which it is urged tends, to prove these allegations consists entirely of the testimony of Mr. and 'Mrs., Malewski as to oral conversations with defendant at the time of the transaction." Mr. Malewski testified:

“He (Mackiewich) said, ‘Malewski, I got mortgage $6000 by Mr. Dobrowolski.’ I said, ‘How much you got mortgage?’ He said, ‘$6,000;’ I said, ‘I haven’t got any more $6,000.’ ‘Well,’ he said, ‘You got a Building loan, $3,000..’ I said, ‘I finished that, finished loan, Building loan.’ He asked me, he said, ‘I will take that out, that Building loan and put it together, put it with that $3,000, you have $3,000?’ I said, ‘Well, I was saving my money, $2,600.’ I take that out the money and put all together.

“I said, ‘How much will that cost?’ He said, ‘That building cost $23,000. ’ I said, ‘ That building cost high, look like $1-0,000.’ He said, ‘You got $6000 mortgage, what do you want?’ I say, ‘Well, invest my own money, $6,000 mortgage.’ ‘Well, all right, maybe some day-have nice mortgage property and take your money, if you got money, ’ you know.

“I say to Mr. Mackiewick, house go down, I say that house not worth today only about $9,000 or $10,000 to buy that mortgage, I say how much you got that mortgage? He says $6,000. I say give me a slip that you got that $6,000 mortgage. You got that slip what he gave me says $6,000.”

Mr. Malewski also said that he received the exhibits, namely, a receipt for the money, the note, the trust deed, the agreement for extension of loan and extension coupon notes but that at the time he received them he did not read them and that he did not know what was written in them. He testified:

“When he (Mackiewick) told me there was only a $6,000 mortgage on this property I believed him and I paid him $6,000 for that mortgage. . . . When he gave me these Exhibits 1 to 9 I keep them in a little -box, I take papers to keep in the bank box. I collected interest twice.” He further said that in July, 1932, he asked defendant for the interest and that defendant replied, “Dobrowolski don’t pay me and' I don’t pay you.” Thereafter there was a foreclosure of the trust deed', a sale, of the property and a deficiency judgment to the amount for which the jury returned a verdict.

Mrs. Malewski says that at the time of the purchase of the note she went to the office of defendant with her husband, and. further says:

‘ ‘ He said he would sell us mortgage for $6,000. That there was no mortgage on that then, $6,000. . . . We did not know there was a $13,000 mortgage. . He said there was only $6,000 there. There was a first mortgage, $6,000. The interest coupon of July, 1932, was not paid. ” '

On cross-examination-of Mrs. Malewski the' following occurred:

“Q. When was the first time he told you the mortgage was for only $6,000.
“ A. I forgot now, I don’t what—
“The interpreter: Take a look at that card, whatever it is.
“Mr. Wachowski (attorney for plaintiffs): I don’t think she understands about this question to her.
“Mr. Walker (attorney for defendant): In January of 1931?
“The Witness: Yes.
“Q. You say Mr. Mackiewieh told you that the only mortgage on the property was this $6,000, is that right?
“A. Only $6,000.
‘ ‘ Q. And did he say anything else about the investment at that time, except that the amount of it was $6,000? A. He said nothing else, except he said first mortgage there was for $6,000.”

The testimony as to these oral conversations is contradicted by the testimony of Mackiewieh, who explains that he told Malewski about the several notes of the series and that the total mortgage was for $13,000, and absolutely denies that at any time he said to plaintiff Malewski or his wife that the total amount of the mortgage on the property was only $6,000. He testifies positively (and his testimony on this point is not contradicted) that the first complaint, made in this regard was by Mrs. Malewski after the foreclosure sale.

Helen Kuchinskas, who was employed by defendant at the time in question, also testified in detail as to the transaction, her testimony fully corroborating defendant in this respect. The trust deed and the opinion of title of the attorney fully stated the facts as to the series of notes secured by the trust deed and conveyed clearly the information that the total amount thereof was $13,000. If the question before us for consideration was whether the verdict of the jury was clearly and manifestly against the weight of the evidence, we would be compelled to give an affirmative answer. The testimony of plaintiffs as to the actual transaction when the note was purchased is vague, uncertain and highly improbable under all the circumstances which appear in evidence. They were not wholly deficient in their knowledge of the English language, and the information given by the trust deed and the opinion of the attorney was clearly to the effect that the total incumbrance was. $13,000. We are clearly of the opinion that under the circumstances here a judgment entered on the verdict in favor of plaintiffs might not be allowed to stand. However, that is not the precise question to be determined. As plaintiffs point out, it is the law that upon a motion for a directed verdict for defendant at the close of all the evidence, the true question is whether there is any evidence in the case upon which, if true, with all the inferences and intendments reasonably to be drawn therefrom, the jury might reasonably return a verdict in favor of plaintiffs, and if so, an instruction for defendant should not be given. Ware v. Illinois Cent. R. Co., 119 Ill. App. 456; Fleming v. Ludington, 121 Ill. App. 54; Woodbury v. Ocean Accident & Guarantee Corp., Ltd., 205 Ill. App. 387, are cited and, like many other cases, sustain this proposition. In determining the question of whether there is any evidence from which a jury might reasonably find in favor of plaintiffs, the essential nature of the action brought may not be entirely disregarded. This is an action for deceit and fraud, and in order to recover in an action of that character there must be proof reasonably tending to show the several elements necessary to constitute such fraud, namely, that the representations were made by defendant; the falsity thereof; their materiality; defendant’s knowledge of such falsity, or his ignorance of the truth thereof; defendant’s intention that the representations be acted upon by plaintiffs; plaintiffs ’ ignorance of the falsity of the representations made;. their reliance on the truth of the false statements; their right to-rely thereon, and their consequent and proximate injury. This summary of the essentials necessary-to'sustain an action for fraud and deceit is elementajry and hardly needs the citation of authorities. 26 Corpus Juris 1062; Bouxsein v. First Nat. Bank of Granville, 292 Ill. 500.

It is also the law that in an action for fraud and deceit the evidence by which these essential elements are established must constitute proof so clear and convincing in its nature as to leave the mind well satisfied that each and all of these elements of fraud have been established. Union Nat. Bank v. State Nat’. Bank, 168 Ill. 256; Preston v. Lloyd, 269 Ill. 152; Wolf v. Lawrence, 276 Ill. 11; Garrett v. Garrett, 343 Ill. 577; Gould v. Lewis, 267 Ill. App. 569; Standard Mfg. Co. v. Slot, 121 Wis. 14; s. c., 105 Am. St. Rep. 1016.

Largely, for the reasons we have already summarized, it must be held that the evidence produced by plaintiffs in this case does not establish these essential elements by any such quantum of proof, in that it does not establish as a fact that plaintiffs relied upon these alleged oral representations. On the contrary, it appears that they demanded and took with them the trust deed itself and the opinion of the attorney upon the title showing clearly that the trust deed was given to secure, a series of notes amounting to .$13,000 and not a single note for $6,000. - It cannot be said that plaintiffs had any right to rely on oral representations .when the written evidence as to the facts was in their possession, and the fact that their knowledge of the English language was somewhat defective would not excuse them in this respect. As was well said in,Chicago, St. P., M. & O. Ry. Co. v. Belliwith, 83 Fed. 437:

“If one can read his contract, his failure to do 'so is such gross negligence that it will estop him from denying it unless he has been dissuaded from reading it by some trick or artificial practice by the opposite party. If he cannot read it, it is as much his duty to procure some reliable person to read and explain it to him before he signs it as it would be to read it before he signed it if he were able to do so; and his failure to obtain a reading and an explanation of it is such gross negligence as will estop him from avoiding it on the ground that he is ignorant of its contents.

. . . The fact that, as we have seen, the plaintiff was charged under the law with full knowledge of the contents of this agreement is itself fatal to his claim for there could be no deceit where there was no ignorance and no concealment. . . . The solemn written agreements of men cannot be whistled down the wind by the testimony of one of the parties to them, to such a story as this . . . the evidence in this case comes far short of that clear, convincing and unequivocal proof which would warrant either a jury or a court in finding either mistake, fraud or deceit in the execution of this contract, and the court below was in error when it refused to instruct the jury to return a verdict for the Company.” The rule in Illinois is similar. Guerra v. Rocco, 181 Ill. App. 528; Shulman v. Moser, 284 Ill. 134.

It is quite unnecessary to review in detail the many cases cited in the brief. We think,no reviewing court could ever allow a judgment entered upon a verdict returned on such evidence to stand. While there is slight evidence of an alleged false representation, there is no evidence that plaintiffs relied thereon, but, on the contrary, uncontradicted affirmative evidence that they did not rely upon it. There is no evidence, therefore, tending to sustain an essential element of the cause stated in the complaint, and for that reason, as well as because the quality of the evidence considered as a whole was insufficient to justify a reasonable verdict for plaintiffs, the trial court rightly entered judgment in favor of defendant, notwithstanding the verdict of the jury. The judgment is therefore affirmed.

Affirmed.

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


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    City of Chicago, Appellee, v. Jack Kay, Appellant.
    Gen. No. 38,417.
    Opinion filed December 16, 1935.
    Apthur F. Gruenwald, of Chicago, for appellant.
    Barnet Hodes, Corporation Counsel, for appellee; Michael L. Bosinia and Mark J. McNamara, Assistant Corporation Counsel, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Kay, who was a driver for the 6500 Cab Company, with offices in Evanston, Cook county, Illinois, was arrested in Chicago February 27, 1935, and charged with the violation of section 2078 of the Chicago Municipal Ordinance, which provides:

“No motor vehicle other than a licensed public passenger vehicle shall be operated along or upon the streets and public ways of the city for the carriage of passengers for hire indiscriminately accepting and discharging such persons as may offer themselves for transportation.

“Applications for public passenger vehicle licenses shall be made by the owner upon blanks furnished by the commissioner and such application shall contain the full name and address of the owner, the class of vehicle for which a license is desired, the length of time the vehicle has been in use, the number of persons it is capable of carrying and the horsepower thereof. No public passenger vehicle shall be licensed until it has been thoroughly and carefully inspected under the direction of the commissioner and examined and found to be in safe condition for the transportation of passengers, clean, of good appearance and well painted and varnished, and no taxicab shall be licensed until a certificate of inspection of its taximeter shall have been issued. . . . ”

Defendant when arraigned waived trial by jury. There was a trial by the court with a finding of guilty and judgment that defendant pay a fine of $5. To reverse that judgment this appeal has been prosecuted.

The evidence tends to prove that Kay lived at 3110 Milwaukee avenue, Chicago, but was employed to drive a cab for Mr. Ball, owner of the 6500 Cab Company in Evanston; that February 27, 1935, defendant’s cab was parked in Howard street on the Evanston side of it, where the Evanston company had a cabstand. A prospective customer, Mrs. Epper, who lived at 1608 Sherwin avenue in Chicago, called the Evanston office of the company by telephone; she talked with Mr. Ball and gave him an order, which he accepted, to send a cab to bring her to Evanston. Defendant was instructed to fill the order. He drove his cab from Evanston to 1608 Sherwin avenue, where he took tin Mrs. Epper with some baggage. She told him to drive to 142 Clyde street, Evanston. Defendant did not collect the fare, which it was his custom to collect at the end of the journey. On this occasion he was prevented from completing the journey and collecting the fare on account of. his arrest by an officer of the City of Chicago.

It was stipulated that defendant driver did not have a City of Chicago chauffeur’s license and that the cab carried no vehicle tag. The latter indicates that the Chicago vehicle tax was not paid. The inference, therefore, is that the owner did not take out a license from the City.of Chicago. The proof shows that defendant was not the owner of the cab. There is no proof that he solicited passengers in Chicago or that he was (to use the language of the ordinance) operating “for the carriage of passengers for hire indiscriminately accepting and discharging such persons as may offer themselves for transportation.”

The evidence shows that the prospective passenger called the Evanston office and requested that a cab be sent for her, and that Mr. .Ball, acting for the Evanston company, told her that he- would send a cab for her. So far as the contract between the passenger and the cab company is concerned, it was made in Evanston, not in Chicago. Restatement of Contracts, sec. 64; Dunlop v. Higgins, 1 H. L. Cas. 381; Trevor v, Wood, 36 N. Y. 307. The briefs discuss a number of questions not necessary to a decision of this case. What we have already said is sufficient to show that the guilt of defendant was not proved.

The judgment is reversed.

Reversed.

McSurely, P,. J., and O’Corroe, J., concur. ■


text:
    In re Estate of Louis Spengler, Insane. Henry Krumroy, Conservator of the, Estate of Louis Spengler, Insane, Appellant, v. Trenholme Dickson, Appellee.
    Gen. No. 38,459.
    Opinion filed December 16, 1935.
    Rehearing denied December 30, 1935.
    Dariel L. Madder, of Chicago, for appellant; Johr E. Toomey and James C. O’Brier, Jr., of counsel.
    Pattisor & Vise, of Chicago, for appellee; Isidore Vise, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

A preliminary statement of undisputed facts may clarify the issues on this appeal. In 1909 Louis Spengler, then 24 years of age, was a citizen of the United States, whose residence and domicile was in Chicago. Sometime in that year (the precise date is not determined) he went to the City of Calgary, Province of Alherta, in the Dominion of Canada. In December, 1912, he was arrested there on a warrant charging that he was insane. An inquiry was held before a magistrate. An order was entered in conformity with the laws of Alberta, committing him to the custody of the attorney general, by whom he was placed in the Provincial Mental Hospital at Ponoka, Alberta, where he has since continuously remained and where he now is. He was and is unmarried. His father, his mother and a brother, who resided in Chicago, have since that time passed away intestate, and Louis Spengler is now entitled to receive considerable sums of money and property from their estates. Krumroy, husband of a deceased sister of Louis Spengler, on December 14, 1932, filed a petition in the probate court of Cook county alleging that said Louis was a nonresident and caused a summons against him to be issued returnable to the January term 1933 of the probate court of Cook county. February 6, 1933, he procured an order by which he was appointed conservator of the estate of Louis Spengler. Trenholme Dickson, acting under the laws of Alberta, Canada, is the administrator of the estates of the mentally incompetent for that province and particularly administrator of the estate of Louis Spengler, insane. Dickson filed his petition in the probate court of Cook county setting up the above facts and praying that Krumroy, as conservator in Cook county of Louis Spengler’s estate, be required to turn over to him as administrator at least $5,000 of the funds in Ms possession, to be used for and in behalf of said Louis Spengler.

Krumroy answered the petition admitting his own appointment, the possession of the money and property, but denying that petitioner Dickson was entitled to receive any sum whatever. The probate court, after hearing, entered an order in favor of Dickson as prayed. Krumroy perfected an appeal to the circuit court of Cook county, where after a trial de novo that court on May 2,1935, entered an order directing Krumroy as conservator to immediately deliver to Trenholme Dickson, admimstrator, etc., funds in Ms possession in the sum of $5,000. The order also directs that Krumroy as conservator “deliver to Trenholme Dickson, administrator as aforesaid, all further funds and assets which may hereafter be collected or come into his possession allowing Mm to retain only a sufficient amount for reasonable administration and other costs.” From that order Krumroy prosecutes this appeal.

The petition of Dickson is based upon section 41 of chapter 86 of Cahill’s 1933 statutes, If 42 (Smith-Hurd’s Ill. Rev. Stats. 1933, p. 1825), which in substance provides that the conservator, guardian, curator or committee of any non-resident, idiot, lunatic, insane or distracted person, spendthrift or drunkard, appointed in any of the United States or territories, or any foreign country, in pursuance of the laws of any such state, territory or country, may commence and prosecute in his name as such conservator, etc., smts for the recovery of any real or personal property, or any interest therein in tMs State, belonging to any such incompetent person in any of the courts of record in tMs State having jurisdiction in similar cases and may collect, receive and remove to his place of residence any personal estate of his ward.

It is the contention of Krumroy that Louis Spengler is not a nonresident within the meaning of the Illinois statute, and that the order of the circuit court is erroneous for that reason. He says that there is nothing to be found in the statute which would justify a construction of the term “nonresident” different from that which has been given to it in other statutes. He cites cases, such as Pells v. Snell, 130 Ill. 379, where the word “resident” as used in the statute of limitations was- construed; People v. Estate of Moir, 207 Ill. 180, where the word “resident” as used in the inheritance -tax; statute was construed, and like authorities construing the words “resident” and “nonresident” in mother statutes : in this and other States. Hayes v. Hayes; 74 Ill. 312.; Wallace v. Lodge, 5 Ill. App. 507, 9 R C. L. 540, sec. 4; 14 Cyc. p. 835; Merrill’s Heirs v. Morrisett, 76 Ala. 433; Estate of Henning, 128 Cal. 214; Allgood v. Williams, 92 Ala. 551; and Dimock, In re, 11 N. Y. Misc. 610. He says that residence is synonymous with “domicile” and should receive the same interpretation in construing section 40 of the statute. He says these cases hold that “residence” is a fixed or .permanent abode, which if once established is pre.sumed to continue, and the burden is entirely on the person seeking to show a change; that theretofore to acquire a new residence there must be an intention to change coupled with the actual change without the intention of returning. Starting, therefore, with the fact that Chicago, Illinois, was at one time the fixed and permanent abode of Louis Spengler, and that when he departed from Chicago his father and mother still remained here, he says, the burden of proof is entirely on petitioner to show a change of residence; that this could be done by showing the alleged lunatic’s intention through declarations made by him at the time he left, or shortly after leaving; that there is no evidence of any such declarations; that the proof is therefore wholly insufficient to prove the abandonment of the residence in Cook county and the establishment of a new residence in Canada; that the number of years a person has been absent from his residence standing by itself is not sufficient to show an abandonment of one residence and the adoption of another. Kreitz v. Behrensmeyer, 125 Ill. 141, 195; Town of Freeport v. Board of Supervisors of Stephenson County, 41 Ill. 495; Payne v. Town of Dunham, 29 Ill. 125, are also cited to the point that having been declared mentally incapacitated the insane person could not thereafter voluntarily change his residence. In other words, Krumroy contends that Louis Spengler is a resident of Chicago, Cook county, Illinois, and not a resident of Alberta, and that the Canadian administrator is therefore not entitled to the benefit of the Illinois statute, upon which his petition is based.

The section of the statute upon which petitioner relies has been construed by the courts of this State in Langmuir v. Landes, 113 Ill. App. 134, and Parcher v. Reese, 202 Ill. App. 509. In the Langmuir case it appeared that one Gerber, an alien who resided in Tazewell county in this State, was adjudged insane and committed to ah asylum. Thereafter one Landes was appointed conservator and came into control of the real estate and personal property of his ward, the personal property amounting to more than $3,000. The father and other relatives of Gerber lived in the province of Ontario. Gerber escaped from the asylum and went there, his Illinois conservator consenting, and thereafter continued to reside in Ontario. He at times returned to his old home in Tazewell county unattended and after a short visit returned to Ontario, the Illinois conservator giving him such funds from time to time as his necessities required. Thereafter Gerber was adjudged insane in Ontario and committed to a public asylum and Langmuir was appointed committee of his person and estate and duly qualified. The Canadian conservator filed a petition to have the property removed to the place of residence, and on appeal to the circuit court the prayer of the petition was denied. In the Appellate Court it was urged that the order" should be affirmed because Gerber was then a nonresident alien and that upon his death the real estate would escheat to the State of Illinois, and, therefore, to grant the prayer of the petition would be contrary to the public policy of the State and prejudicial to its interests, and that, second, because the evidence fails to disclose that the best interests of Gerber required a removal of the property, or its proceeds to the place of his domicile. The Supreme Court described such policy as “a lawless selfishness” and refused to concede that the State would be influenced by such policy. As to the second point, the court stated that Gerber had become a bona fide resident of Ontario; that the court there had jurisdiction of his person and estate and was manifestly in a better position to understand and determine his best interests than the county court of Tazewell county, and reversed the order and remanded the cause.

In Parcher v. Reese, 202 Ill. App. 509, it appeared that Ella Tunison was adjudged insane in Christian county, Illinois, and committed to the State hospital for the Insane at Jacksonville, where she remained an inmate for more than five years. Reese was appointed her conservator in Christian county. Neither her relatives in Illinois nor her conservator ever visited her at Jacksonville. Her condition did not improve in the asylum, and in June, 1907, Mrs. Parcher, a sister, requested that she might be allowed to take her to her own'home in Missouri and care for her there. The superintendent of the asylum advised and the county court of Christian county consented that her request be granted. Thereafter she remained with her sister in Missouri and was well cared for but remained insane and incapable of taking care of herself. In 1915 Ella Tunison was adjudged insane in Missouri and Mrs. Parcher appointed guardian of her person and estate. Thereafter she filed in the county court of Christian county, Illinois, a petition praying for an order directing the Illinois conservator to turn over to her the estate of the ward, which consisted of more than $9,000 in notes and cash. The prayer of the petition was granted. The Illinois conservator appealed to the circuit court, and that court entered a similar order in favor of the nonresident guardian. In the Appellate Court it was argued that Ella Tunison was not and had not been a nonresident of the State and that therefore the provisions of the statute upon which the petition was based could confer no rights upon the petitioning conservator. The court said:

“While an insane person is conclusively presumed to be incapable of determining for himself where he will abide or hold his domicile, yet it has been held that if he has a conservator or guardian, his domicile or residence may be changed by the direction or assent of such officer, either expressly or impliedly given. Holyoke v. Haskins, 5 Pick. (Mass.) 20; Anderson v. Anderson’s Estate, 42 Vt. 350; Inhabitants of Pittsfield v. Inhabitants of Detroit, 53 Me. 442; Hill v. Horton, 4 Dem. Surr. (N. Y.) 88; Culver’s Appeal, 48 Conn. 165; In re Jackson, 15 Mich. 417. There are authorities holding a contrary view, but we aré satisfied that the weight of authority is in accord with those cited.” The court also stated that while the courts of last resort in this State had not passed on the question, the Appellate Court in Langmuir v. Landes, 113 Ill. App. 134, had recognized as valid a change of residence from Illinois to Canada, and pointed out that the words “resident” and “nonresident” had different meanings according to the subject under consideration; that lunacy laws were enacted for the benefit of the unfortunate as well as for the public; that they were in their nature emergency laws and should be construed liberally to the end that their purpose might be effectuated, and continued:

“ ‘Nonresident’ as used in paragraph 41 of the lunacy laws of this State (J. & A. par. 7325) should be construed to mean an insane person who is beyond the jurisdiction of the courts of this State and who has been taken before the courts of such other State and adjudged to be insane, and a guardian or conservator of his person and estate has been appointed by such court. In such cases the courts of this State should recognize the acts of such foreign courts as valid, and the guardian or conservator appointed by them as the guardian or conservator of a nonresident lunatic.” The judgment was affirmed. These cases seem to be in harmony with the weight of authority. Restatement of the Law, Conflict of Laws, chapter 2, sec. 9.

While there are many facts in the present case which distinguish it from these we have analyzed, we are constrained upon the whole record to the view that Louis Spengler is a nonresident within the meaning of this statute. It is true, as Krumroy points out, that the record lacks any proof of any expression on the part of Spengler before or after leaving Chicago which would disclose his intention to make his home elsewhere, but this is not the only kind of evidence by which such an intention may be determined. The fact that he remained away continuously for three years without, so far as the evidence shows, communicating with his father and mother and that upon the entry of an order finding him insane he was not returned to the United States, as he would have been if his residence was in Chicago (see Statutes of Canada 1910, Immigration act, chap. 27, section 2D) but, on the contrary, was placed in a Canadian institution for care and treatment, would seem to be sufficient to shift the burden of proof and require affirmative evidence tending to show an intention on his part to return. There is no such evidence in this record. Louis Spengler has been cared for in the Canadian hospital for more than 22 years. The record fails to show that he has communicated or attempted to communicate at any time with any of his relatives in Chicago. It fails to disclose that any of the relatives in Chicago have communicated or attempted to communicate with him, other than by causing a notice of the proceeding to have him declared insane by the probate court to be sent to Alberta. Most significant, there has not been up to this time any attempt on the part of any relative to secure his release or effect his return. It is a fair inference from all the evidence that if he had not acquired a residence in the Dominion of Canada he would upon the adjudication of his insanity have been returned to his native country. It is also fair to infer that his treatment there has been kind; at least, he seems to have survived all of his immediate family. The Canadian administrator, who has assumed his care, is upon every consideration of justice entitled to receive his estate; humanity, fair dealing and a reasonable construction of our statute seem to demand that he have it.

Since the opinion in the above cause was prepared, the death of Henry Krumroy, conservator of the estate of Louis Spengler, insane, and the appointment of John J. Madden, as successor, have been suggested, and an order entered continuing the cause in the name of John J. Madden, as conservator.

For these reasons the judgment of the circuit court is affirmed.

Affirmed.

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


author: Mr. Justice Op ’Connor

text:
    Anna Meek, Appellee, v. Electrical Engineering Equipment Company, Appellant.
    Gen. No. 38,367.
    Opinion filed December 16, 1935.
    Royal J. Schmidt, of Chicago, for appellant.
    John A. Ricker, of Chicago, for appellee.
   Mr. Justice Op ’Connor

delivered the opinion of the court.

Plaintiff, the owner of a $500 bond, being one of an issue aggregating $350,000, payment of which was secured by a trust deed on certain property, brought an action against defendant (the maker of the bonds) to recover their face value with interest in default from February 1,1933; the bond was dated February 1,1926, and was due by its terms February 1, 1938. Plaintiff alleged in her complaint that by reason of defendant’s default in the payment of interest falling due February 1, 1933, she elected to declare the principal sum immediately due and payable. Defendant in its answer denied that plaintiff had the right to accelerate the time of payment of the bond and set up certain provisions of the bond and the trust deed. Counsel for both parties in their briefs say that the court struck the answer and entered judgment in plaintiff’s favor for $584.65, being the amount of her claim; defendant appeals.

For the purpose of this decision we shall assume that the defendant’s answer was stricken and judgment entered, as counsel for both sides contend, although the record does not show the answer was stricken, but that on the contrary the court heard the case without a jury, found in favor of plaintiff for the amount of her claim, and entered judgment accordingly.

Defendant admits plaintiff had the right to sue for the interest due on the bond. The sole question for decision is, Had plaintiff the right to accelerate the time of payment of the principal of the bond? The answer to this question depends upon the provisions of the bond and trust deed.

The material paragraph of the bond is as follows: “On default in payment of the interest on or principal of any of the bonds secured by the mortgage, or in the performance of any of the covenants of the Company [mortgagor] contained in the mortgage, the principal of this bond may, before the date of the maturity hereof herein specified, become due and payable, together with the accrued interest hereon, in accordance with the provisions of said mortgage. ’ ’

One of the defaults mentioned in the mortgage was default in the payment of any instalment of interest continuing for a period of 30 days. Section 2 of the mortgage provides: “If any one or more of the events of default shall occur and shall he continuing, then and in every such case the Trustee may, and upon written request of the holders of not less than one-fourth in amount of all said bonds then outstanding the Trustee shall, by notice in writing delivered to the Company, declare the principal of all of said bonds then outstanding to be immediately due and payable, and upon such declaration the said bonds and interest shall, subject to the further provisions of this Article, immediately become and be due and payable, anything herein or in said bonds to the contrary notwithstanding.”

In Foxell v. Fletcher, 87 N. Y. 476, suit was brought to recover the whole sum due because of default in the payment of monthly instalments. The court there said (p. 480): “in the absence of a stipulation, that, on default in the payment of any of these [installments] the whole should become due, the plaintiffs were entitled only to recover the installments due at the time of the commencement of the action.” To the same effect is Llewellyn Iron Works v. Littlefield, 74 Wash. 86 (90): “There is no clause in the note providing that, in the event the payments are not made at the time specified, the whole sum shall, or may at the election of the creditor, become due and payable, in the absence of which, delinquency as to certain payments does not mature the entire debt.”

But plaintiff contends that the “language of the bond is ambiguous, in that it clearly provides for acceleration of the time of payment of the principal sum upon default in payment of interest due, and in the same paragraph attempts to nullify or limit this provision for acceleration by reference to restrictive provisions in the mortgage ’ ’; and that plaintiff, the holder of the bond, “may ignore the provisions of the mortgage and rely on the clear and concise language of the bond.” We think this contention cannot be sustained because we are of opinion that the language of the bond is not ambiguous. It provides that in case , of default in the payment of interest, “the principal of this bond may, before the date of the maturity hereon . . . become and be due and payable, together with the accrued interest hereon, in accordance with the provisions of said mortgage.” And the mortgage provides that in case of such a default, “the Trustee may, and upon written request of the holders of not less than one-fourth in amount of all said bonds then outstanding the Trustee shall, by notice in writing delivered to the Company, declare the principal of all of said bonds then outstanding to be immediately due and payable. ’ ’ The bond does not provide that in case of default in payment of interest the owner of such bond may declare the principal of the bond due and payable. It clearly says that in case of such default, the principal of the bond may become due and payable in accordance with the provisions of the mortgage; and the mortgage provides that in case of such default the trustee may declare all of the principal of the bonds outstanding immediately due and payable and upon written request of the holders of not less than one-fourth in amount of the bonds outstanding shall declare all the bonds immediately due and payable by giving notice in writing to the mortgagor that he has made such a declaration. There is no provision that a bondholder can declare the principal of the bond immediately due upon default in payment of the interest.

Since plaintiff did not have the right to accelerate the time of payment of the principal of the bond, her suit was prematurely brought except as to the interest due on the bond.

The judgment of the superior court of Cook county is reversed and the cause remanded.

Judgment reversed and cause remanded.

McSureliY, P. J., and Matchett? J., concur,


author: Mr. Presiding Justice Scanlan

text:
    First District.
    Ignatius Chap, appellee, v. Lithuanian National Catholic Church of America et al., defendants, on appeal of Lewis Kent Dalrymple, appellant.
    Gen. No. 37,884.
    Opinion filed November 5, 1935.
    John C. Gekas, for appellant. Igoe & Flaherty and George H. Mason, for appellee; George H. Mason, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Wilfred Westlund and Violette Westlund, appellees, v. Federal Life Insurance Company, appellant.
    Gen. No. 37,957.
    Opinion filed November 5, 1935.
    Eckert & Peterson, for appellant; Tom Deeming, of counsel. Daniel D. Madden, for appellees; Edward J. Kelley, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Edward O. Tudor, appellee, v. Russell Firebaugh, appellant.
    Gen. No. 37,971.
    Opinion filed November 5, 1935.
    William Sherman Stahl, for appellant. Maxwell L. Rubin, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


author: Mr. Presiding Justice .Seanlan

text:
    Fannie Watson, beneficiary of James Watson, deceased, appellee, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 38,000.

      Opinion filed November 5, 1935.
    Hoyne, O ’Oonnor So Rubinkam, for appellant; Nathaniel Rubinkam and William S. Allen, of counsel. David J. Maddox, for appellee.
   Mr. Presiding Justice .Seanlan

delivered the opinion of the court.


author: Mr. Presiding Justice Seanlan

text:
    David H. Lentz and Robert J. Joutras, appellees, v. Miller Rubber Products Company, appellant.
    Gen. No. 38,032.
    Opinion filed November 5, 1935.
    F. C. Leslie and Russell, Murphy, Curran So Pearson, for appellant; Walter ffm. Pearson and William H. Meyer, of counsel. Lederer, Livingston, Kahn & Adler, for appellees; Archie H. Siegel, of counsel.
   Mr. Presiding Justice Seanlan

delivered the opinion of the court.


author: Mr. Justice Friend

text:
    Foreman State Trust and Savings Bank et al., complainants, v. Victor C. Carlson et al., defendants, on appeal of Frank C. Rathje, appellant, v. First National Bank of Chicago, appellee.
    Gen. No. 37,761.
    Opinion filed November 5, 1935.
    Crowe, Gorman So Savage, for appellant; John Mulder and James G. Sheridan, of counsel. Tatge So Tatge, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. David Pondexter et al., plaintiffs in error.
    Gen. No. 37,776.
    Opinion filed November 5, 1935.
    David J. Bentall and Ben Meyers, for plaintiffs in error; Hart E. Baker, of counsel. Thomas J. Courtney, State's Attorney, for defendant in error; Edward E. Wilson, Henry E. Seyfarth and John-.-T. Gallagher, Assistant State's Attorneys, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Jacob Froscher, appellee, v. Wilcox Company et al., appellants.
    Gen. No. 37,968.

      Opinion filed November 5, 1935.
    G. Manasse, for appellants. No appearance for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Alex Lehtman, appellee, v. I. A. Thomas, appellant.
    Gen. No. 37,976.
    Opinion filed November 5, 1935.
    Weightstill Woods, for appellant. No appearance for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Carl W. Himmelberg, appellant, v. Paul Sternburg, appellee.
    Gen. No. 38,011.
    Opinion filed November 5, 1935.
    Jacob Kosbie, for appellant. No appearance for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


author: • Mr. Justice Friend

text:
    Joseph Graziano, appellee, v. American Railway Express Company, appellant.
    Gen. No. 38,015.
    Opinion filed November 5, 1935.
    Cutting, Moore & Sidley, for appellant; F. Himmelhoeh and Howard Neitzert, of counsel. Roeeo DeStefano and Irving.G. Zazove, for appellee.
   • Mr. Justice Friend

delivered the opinion of the court.


author: Mr. Justice Sullivan

text:
    Arthur M. Gelden, appellee, v. Prairie State Bank, appellant.
    Gen. No. 37,498.
    Opinion filed November 5, 1935.
    Campbell, Clithero & Fischer, for appellant. Barney L. Hollowiek and William Levine, for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.


text:
    William F. Jasmund, appellee, v. Haldame Cleminson, appellant.
    Gen. No. 37,652.
    Opinion filed November 5, 1935.
    Altheimer, Mayer, Woods & Smith, for appellant; A. B. Manion, of counsel. Donald P. Vail, for appellee; Louis H. Kohn, Jr., of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.


text:
    Vytauto Building and Loan Association, appellant, v. John J. Zolp et al., defendants. Anton Litwin and Agnes Litwin, appellees.
    Gen. No. 38,008.
    Opinion filed November 5, 1935.
    Clarence T. Morse, for appellant. Cochrane & George, for appellees.
   Mr. Justice Sullivan

delivered the opinion of the court.


text:
    Chicago Title and Trust Company, appellee, v. Burrell J. Cramer and Mamie I. Cramer, appellants.
    Gen. No. 38,029.
    Opinion filed November 5, 1935.
    Burrell J. Cramer, pro se, and as attorney for Mamie I. Cramer. Joseph A. Struett, for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.


text:
    St. Paul Fire and Marine Insurance Company, appellant, v. Patriotic Insurance Company of America, appellee.
    Gen. No. 38,047.
    Opinion filed November 5, 1935.
    J. B. Luse, for appellant. Hicks & Folonie, for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.


text:
    Josephine Guza, appellee, v. The Prudential Insurance Company of America, appellant.
    Gen. No. 38,171.
    Opinion filed November 5, 1935.

      Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and William S. Allen, of counsel. Hummeland, Schiller & Schwartz, for appellee; Arne B. Hummeland, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.


text:
    Mid-City Trust and Savings Bank, appellant, v. Richard A. Dubin et al., defendants. Alex Schatzman, appellee.
    Gen. No. 38,531.
    Opinion filed November 5, 1935.
    Gustav B. Beerly, for appellant; John F. Diffendorffer, Jr., of counsel. David H. Feldman, for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.


author: Mr. Presiding Justice Hall

text:
    George Holsman, appellee, v. Continental Illinois National Bank and Trust Company and Nellye Holsman, as executors or the last will and testament of Hyman Holsman, deceased, appellants.
    Gen. No. 38,532.
    Opinion filed November 8, 1935.
    James Rosenthal and Sidney Levy, for appellants; James J. Lawrence, of counsel. Darrow, Smith, Oronson & Smith, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


author: Mr. Presiding Justice MeSurely

text:
    Willard Bess, a minor, by Ernest R. Bess, his father and next friend, appellee, v. Curtis Publishing Company, appellant. Charles T. Martin, as administrator of the estate of Roy D. Martin, deceased, appellee, v. Curtis Publishing Company, appellant.
    Gen. No. 38,079.
    Opinion filed November 12, 1935.
    Hamer & Campbell, for appellant; Chester D. Kern, of counsel. H. H. Patterson, for appellees; Edmund C. Maurer, of counsel.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    Louise Terwilliger, appellant, v. United American Trust and Savings Bank et al., appellees.
    Gen. No. 38,116.

      Opinion filed November 12, 1935.
    Rehearing denied November 26, 1935.
    Oscar S. Seaver and Sanders, Childs, Bobb & Weseott, for appellant; William L. Bourland, of counsel. Mclnerney, Epstein & Arvey, for certain appellee; Louis M. Mantynband and George L. Siegel, of counsel.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    M. M. Sachs and Elie Levy, appellees, v. B. Soumar, appellant.
    Gen. No. 38,144.
    Opinion filed November 12, 1935.
    Felix J. Streyckmans and Gurdon Williams, for appellant. Bernard Allen Fried and Nat S. Ruvell, for appellees; Bernard Allen Fried, of counsel.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    The First National Bank of Chicago, appellant, v. Catherine Balzer et al., defendants. Samuel E. Davidson and Muriel Davidson, appellees.
    Gen. No. 38,154.
    Opinion filed November 12, 1935.
    Rehearing denied November 26, 1935.
    Tatge & Tatge, for appellant; Robert F. Kolb and Francis M. Cooper, of counsel. Samuel E. Davidson, for appellees.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    Joan Left, appellee, v. Maling Brothers Incorporated, appellant.
    Gen. No. 38,169.
    Opinion filed November 12, 1935.
    Robertson, Crowe & Spence, for appellant; Burt A. Crowe, of counsel. H. H. Patterson, for appellee.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    Werner H. Sommers, executor of the estate of James L. Bynum, deceased, and A. B. Chrzanowski, appellants, v. E. Sabath et al., trading as Sabath & Kauffman, appellees.
    Gen. No. 38,180.
    Opinion filed November 12, 1935.

      A. B. Chrzanowski, pro se, and Henry J. Gibbs, for appellants; Henry J. Gibbs, of counsel. Robertson, Crowe & Spence, for appellees; Eugene P. Kealy, of counsel.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


author: Mr. Presiding Justice' MeSurely

text:
    Mary Jane Maloney, a minor, by Thomas J. Maloney, her father and next friend, appellee, v. Bird Theatre Corporation, appellant.
    Gen. No. 38,192.
    Opinion filed November 12, 1935.
    W. K. Kidwell and Andrew J. Farrell, for appellant. No appearance for appellee.
   Mr. Presiding Justice' MeSurely

delivered the opinion of the court.


text:
    Vincent G. Gallagher, appellee, v. Eli Metcoff, appellant.
    Gen. No. 38,202.
    Opinion filed November 12, 1935.
    David K. Tone, for appellant. Bernard MeDevitt, Jr., for appellee.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    Anton O. Satrang, appellant, v. City of Chicago, appellee.
    Gen. No. 38,221.
    Opinion filed November 12, 1935.
    Rehearing denied November 26, 1935.
    Urion, Bishop & Sladkey, for appellant; Howard F. Bishop, of counsel. Barnet Hodes, Corporation Counsel, for appellee; John W. McCarthy, Assistant Corporation Counsel, of counsel.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    Cyrus H. McCormick et al., appellees, v. James C. O’Brien, Jr., appellant.
    Gen. No. 38,245.
    Opinion filed November 12, 1935.
    Rehearing denied and opinion modified November 26, 1935.
    McCarthy & Toomey, for appellant. Clyde 0. Hornbaker, for appellees; George R. Harbaugh, of counsel.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


text:
    Ernst A. Weichbrodt, appellee, v. William Schlatter et al., defendants, on appeal of Eva Zischek, appellant, v. Ernst A. Weichbrodt and William Schlatter, appellees.
    Gen. No. 38,276.
    Opinion filed November 12, 1935.
    Arthur P. Feigen, for appellant; Albert J. Feigen, of counsel. George Gillette, Charles F. Grimes and Harrold, Quilici, dementi & Murphy, for certain appellee.
   Mr. Presiding Justice MeSurely

delivered the opinion of the court.


author: Mr. Justice Matehett

text:
    City of Chicago, defendant in error, v. James Balanoff, plaintiff in error.
    Gen. No. 38,150.
    Opinion filed November 12, 1935.
    H. E. Baker, for plaintiff in error. William H. Sexton, Corporation Counsel, and Michael L. Rosinia, Prosecuting Attorney, for defendant in error; Mark J. McNamara, Chief Assistant City Prosecutor, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    City of Chicago, defendant in error, v. George Nickloff, plaintiff in error.
    Gen. No. 38,151.
    Opinion filed November 12, 1935.
    H. E. Baker, for plaintiff in error. William H. Sexton, Corporation Counsel, and Michael L. Rosinia, Prosecuting Attorney, for defendant in error; Mark J. McNamara, Chief Assistant City Prosecutor, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Timothy O’Connor, appellee, v. Glanz Mortgage Company, appellant.
    Gen. No. 38,165.
    Opinion filed November 12, 1935.
    Rehearing denied November 26, 1935.
    Jacob Levy, for appellant; Edward McTiernan, of counsel. Hayes & Remus, for appellee; Wm. J. Remus and George T. Madden, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


text:
    Samuel Marino, trading as Marino Machine Shop, appellee, v. I. J. Grass Noodle Company, appellant.
    Gen. No. 38,177.
    Opinion filed November 12, 1935.
    Irving L. Block, for appellant. Joseph E. Newton and F. Gerald O’Hara, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Florence C. Bulger, complainant, v. J. Francis Bulger, defendant. J. Francis Bulger, appellant, v. Florence C. Bulger, appellee.
    Gen. No. 38,186.
    Opinion filed November 12, 1935.
    Whitty & McGah, for appellant; Elmer J. Whitty and William J. McGah, of counsel. Immenhausen & Banovitz and Teed, Kammermann & Johnson, for appellee; Hugh E. Johnson, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    U. S. Laundry Machinery Corporation, appellee, v. Herman A. Sommers et al., on appeal of Herman A. Sommers and Mary Sommers, appellants.
    Gen. No. 38,214.
    Opinion filed November 12, 1935.
    Miller, Kamenear & Margolis, for appellants; Leon N. Miller and Henry A. Steinberg, of counsel. Leslie H. Whipp, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Elia Bell, appellee, v. Estate of John B. Bubbins, deceased, appellant.
    Gen. No. 38,257.
    Opinion filed November 12, 1935.
    Rehearing denied November 26, 1935.
    B. G. Clanton, for appellant. Arthur H. Jones, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Charles Hamann, appellant, v. William M. Anderson et al., defendants. Chicago Title and Trust Company and Charles J. Holland, appellees.
    Gen. No. 38,281.

      Opinion filed November 12, 1935.
    Ratlije & Connor, for appellant; Oliver B. Opsahl, of counsel.- Campbell, Clithero & Fischer, for appellees; Raymond P. Fischer, of counsel.
   Mr. Justice Matehett

delivered the opinion of the court.


author: Mr. Justice 0 ’Connor

text:
    Richard Gillum, a minor, by Ann Gillum, his next friend, appellant, v. Stanley K. Gage et al., appellees.
    Gen. No. 38,149.
    Opinion filed November 12, 1935.
    Gaines, McCoy & Kelley, for appellant; Harris B. Gaines and Elijah B. Kelley, of counsel. Ode L. Rankin, for appellees.
   Mr. Justice 0 ’Connor

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    Lydia Kippenhan, appellee, v. The Chicago Memorial Hospital and Duparquet, Huot and Moneuse Company of Illinois, on appeal of The Chicago Memorial Hospital, appellant.
    Gen. No. 38,174.
    Opinion filed November 12, 1935.
    Rehearing denied November 26, 1935.
    Wendell H. Shanner, for appellant; Challes Laughlin, of counsel. Swigart & Hurley, for appellee; Eugene Swigart, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Walter Sheriffs, appellant, v. Mertle E. Newman and Harold E. Newman, appellees.
    Gen. No. 38,205.
    Opinion filed November 12, 1935.
    Ziv, Loomis & Ziv, for appellant. John B. King, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Ida D. Thurston, appellee, v. Dr. John C. Ellis, appellant.
    Gen. No. 38,238.
    Opinion filed November 12, 1935.
    Rehearing denied November 26, 1935.
    ■ E. White, Benjamin G. Clanton and James A. Greene, for appellant. Ellis & Westbrooks, for appellee; Richard E. Westbrooks, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: . Mr. Justice O ’Connor

text:
    Richard. E. Schmidt et al., trading as Schmidt, Garden & Erikson, appellees, v. Eugene H. Huguelet et al., trading as Huguelet Brothers, appellants.
    Gen. No. 38,253.
    Opinion filed November 12, 1935.
    Rehearing denied November 26, 1935.
    Frank T. Jordan, for appellants; Fay Warren Johnson and William S. Jameson, of counsel. Rosenthal, Hamill & Wormser, for appellees; Willard L. King and George W. Gale, of counsel.
   . Mr. Justice O ’Connor

delivered the opinion of the court.


text:
    The Pyle-National Company, defendant in error, v. George Racky et al., plaintiff in error.
    Gen. No. 37,794.
    Opinion filed November 20, 1935.
    Albert O. Olson, for plaintiff in error. Spencer & Bryan, for defendant in error; Howard B. Hauze and Charles F. Pattlock, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    John Cummings Lindop Real Estate, Inc., appellee, v. Berwyn Odd Fellows Temple Association, appellant.
    Gen. No. 37,832.
    Opinion filed November 20, 1935.
    Cheney, Evans & Peterson, for appellant; Albert Peterson, of counsel. Lindsay & Schachner, for appellee; Willard 0. Lindsay, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Michael J. Mulvey et al., appellees, v. City of Chicago et al., appellants.
    Gen. No. 37,864.
    Opinion filed November 20, 1935.
    Rehearing denied December 4, 1935.
    William H. Sexton, Corporation Counsel, for appellants; Quin O’Brien and.Adam E. Patterson, Assistant Corporation Counsel, of counsel. William D. Johnson' and Johan Waage, for appellees.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    William E. Borg et al., appellants. Oscar F. Fischer et al., appellants, v. Harry Finegold, appellee.
    Gen. No. 37,869.

      Opinion filed November 20, 1935.
    Rehearing denied December 4, 1935.
    Nusbaum, Damon & Sturman, for appellants; M. Robert Sturman and Samuel J, Sherman, of counsel. Randolph Bohrer, for appellee; Randolph Bohrer and Norman H. Arons, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    E. Ray Grant, appellee, v. Russell Firebaugh, appellant.
    Gen. No. 37,872.
    Opinion filed November 20, 1935.
    Rehearing denied December 4, 1935.
    William Sherman Stahl, for appellant. ' A. S. & E. W. Froehlich, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.


text:
    Frank L. Webb, appellee, v. John W. Prassas et al., on appeal of Harry Rattner, appellant.
    Gen. No. 37,882.
    Opinion filed November 20, 1935.
    Millard R. Powers and Turner & Turner, ior appellant. Altheimer, Mayer, Woods & Smith, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.