author: Mr. Justice Dove

text:
    Excelsior Stove and Manufacturing Company, Appellee, v. Peter Venturelli, Appellant.
    Gen. No. 9,198.

      Opinion filed May 18, 1937.
    T. E. White and C. B. Chapman, both of Ottawa, for appellant.
    Butters & Butters and John A. Berry, all of Ottawa, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

On August 11, 1932, the defendant below, appellant in this court, being then engaged in the retail hardware business at Oglesby, Illinois, was indebted to the plaintiff below, appellee here, in the sum of $423.90 for stoves theretofore purchased by him from the plaintiff. The plaintiff is a manufacturer of stoves, having its place of business in Quincy, Illinois. Evidencing such indebtedness the defendant executed and delivered to the plaintiff his promissory note for that amount due February 11, 1933. Said note was a judgment note and bore interest at the rate of six per cent after maturity. On September 15,1932, the defendant, without the knowledge, consent or request of the plaintiff, shipped by freight eight stoves which he had theretofore, in 1930 and 1931, purchased from the plaintiff to the plaintiff at Quincy. On the same day the stoves were shipped to the plaintiff, the defendant wrote the president of the plaintiff company, stating that he hoped he would pardon him for taking the liberty of returning the eight stoves, that the amount which the defendant paid the plaintiff for these eight stoves was more than the amount of the defendant’s note, which the plaintiff then held, and requesting the plaintiff to return the note to him as soon as the stoves were received. The defendant gave as his reason for returning the stoves the fact that one of the cement mills located at Oglesby had closed down, that the men were out of work and he didn’t wish the plaintiff to be compelled to wait for its money any longer and expressed the hope that his action in returning* the stoves would meet with the approval and satisfaction of the plaintiff. The bill of lading issued by the railroad company on September 15, 1932, disclosed that the total value of the stoves returned amounted to $426, as fixed by the defendant. The stoves arrived in Quincy on September 23, 1932, and the company paid the freight thereon, uncrated them and placed them in their stock. On March 4, 1933, an itemized credit memorandum in the sum of $301.16 was mailed by the plaintiff to the defendant and the note credited with $290.27, the difference being credited to the defendant upon his open account.

On April 29, 1935, judgment by confession, upon the note of August 11, 1932, was rendered by the circuit court of LaSalle county in favor of the plaintiff for $143. This "judgment was subsequently opened up upon motion of the defendant and an answer was filed in which the defendant admitted the original indebtedness by him to the plaintiff and the execution of the note sued on and alleged that at the time he executed the same it was with the express understanding that he would have the right to return to the plaintiff any unsold merchandise which he had purchased of the plaintiff and that the plaintiff would accept the same and credit the defendant’s note with the full amount charged the plaintiff for such merchandise at the time of its purchase. After the issues were made up, a trial was had before the court, a jury being waived, resulting in a finding for the plaintiff and an order was entered vacating the previous order opening up the judgment and ordering that the original judgment rendered on April 29, 1935, be restored and stand as the judgment of the court. From this order defendant appeals.

Counsel for appellant insists that as the evidence discloses that at the time appellant returned the stoves to appellee in September, 1932, he wrote appellee requesting the return of his note and that as appellee received the stoves and placed them in its stock, but did not communicate with appellant until the following March it must be held that by so doing appellee accepted the returned merchandise in full payment of appellant’s obligation. We are unable to agree with this contention. The letter of appellant, written appellee at that time, did not indicate that appellant then understood that he had any agreement with appellee to return the stoves and be credited with their purchase price. He began his letter by stating that he hoped appellee would pardon him for taking the liberty of returning the gas ranges, but that due to business conditions it was the only means he had of paying appellee. This letter indicated appellant was desirous of thus discharging his obligation, but there is no evidence in this record that discloses that at the time the stoves were purchased any such arrangement had been entered into by the parties. And under all the circumstances, we are of the opinion appellee was clearly within its rights when it uncrated the stoves, took proper care of them and subsequently credited appellant’s note with the reasonable value thereof. The evidence is that the stoves had been in appellant’s place of business since they were purchased two or three years before they were returned, that during that time the g*as circulator had been used, appellant testifying it had been hooked up for a week. The evidence is further that the legs on four of the stoves were scratched and all the stoves were shop worn and the receiving clerk of appellee testified that the shelf, oven door and manifold bracket on three of the stoves were chipped and that something was wrong with all of them. It is true that as a general rule an unpaid seller of goods loses his lien when he parts with possession of the goods to the vendee; however, in this case, appellant after receiving the stoves and keeping them fbr years wrongfully returned them to appellee. His letter indicated he did not want them and appellant so testified. Under these circumstances we do not believe that appellee was obliged to accept these goods in full satisfaction of appellant’s note or else decline to receive them, but it, appellee, had the right to receive the goods and thus prevent further loss or damage to the merchandise.

In support of appellant’s contention, counsel call our attention to the cases of Smith v. Ainsworth, 64 Ill. App. 157, and Whitney, Inc. v. Mandel, 218 Ill. App. 316. We have examined these cases. In the Whitney case the plaintiff brought suit to recover the purchase price of a dress which defendant had purchased of the plaintiff and which the plaintiff sold and delivered to the defendant. The defense interposed was that the dress was not properly manufactured. It appeared that the defendant kept the garment for a full month and the court held that the retention of the garment for that length of time without attempting to return it or notify plaintiff that it was unsatisfactory constituted acceptance thereof. In the Smith case, supra, it was held that after a buyer of fish had done an act which he would have no right to do except as the owner of the fish, then he had no right to subsequently reject the fish. The facts in these cases are clearly distinguishable from the facts in the instant case. In both the Whitney and Smith cases there was a valid and binding contract of sale entered into between the parties. Here appellee made no contract to repurchase the stoves theretofore sold by it to appellant or to accept the same when returned in satisfaction of appellant’s note. Certainly it does not follow that because appellee received the merchandise at its plant and paid the freight thereon and did not promptly communicate to appellant its intention not to accept the same in full discharge of appellant’s obligation, that appellant’s obligation on his note is satisfied. Appellant voluntarily and without any request from appellee or any contract that permitted him to do so returned the stoves to appellee. By so doing he could not place any obligation upon appellee. “The mere fact that a person to whom an offer to buy or sell goods is made fails to reply thereto and reject the offer, ordinarily, cannot he taken as an acceptance of the offer, even though the offer states that silence will be taken as consent. . . . So, also, where goods are delivered, as under a sale, hut without an authorized order therefor, the goods may he either accepted or rejected by the buyer; and until accepted, they remain the property of the seller and the mere fact that the person to whom the goods have been delivered fails to notify the sender that he will not buy does not constitute such an. acceptance as will convert the transaction into a contract of sale, unless, by reason of the circumstances, such as the course of dealing between the parties, it is the dnty of the bnyer to notify the seller if he intends to refuse to accept the goods.” 55 C. J. 95, 96. In the instant case there is no evidence that there had been a course of dealing between the parties from which appellant could be said to have relied upon the silence of appellee as constituting* an acceptance of his offer. There is no evidence that appellant prior to September 15, 1932, ever returned to appellee any merchandise.

Counsel for appellant finally insist that the final order entered by the court on September 11, 1936, was erroneous. We do not think so. This order vacated the order of July 1, 1935, opening up the judgment theretofore rendered by confession on April 29, 1935, and ordered that that judgment stand as the judgment of the court. “Where a judgment by confession has been opened up and a trial had, and the issues are found for the plaintiff, the proper practice is to restore the judgment by confession and not to enter an independent judgment. Shinner v. Raschke, 213 Ill. App. 324; Morris v. Taylor, 199 Ill. App. 588; Cervenka v. Hunter, 185 Ill. App. 547.” Bowers v. Heflebower, 243 Ill. App. 129, at page 137. See also Northeastern Coal Co. v. Tyrrell, 133 Ill. App. 472.

The judgment of the circuit court of LaSalle county is affirmed.

Judgment affirmed.

Mr. Justice Wolfe took no part in the consideration or determination of this case.


source: Caselaw Access Project

license: Public Domain

text:
    Elwyn W. Chandler, Appellant, v. Illinois National Bank and Trust Company of Rockford, Executor of the Last Will and Testament of Maria E. Chandler, Deceased, and Melvin J. Chandler, Appellees.
    Gen. No. 9,201.
    Opinion filed May 18, 1937.
    Ryan & Hood, of Rockford, for appellant.
    C. H. Linscott and Lawrence A. Smith, both of Rockford, for certain appellee.
   Mr. Justice Dove

delivered the opinion of the court.

On April 18, 1935, Maria E. Chandler died testate, having executed her will on July 15, 1932. This will was duly proven and admitted to probate and so far as material to this litigation contained the following clause, viz.: “I hereby further direct said trustee after the death of my beloved husband, Elwyn W. Chandler, to convey by good and sufficient deed of conveyance to Melvin' J. Chandler and Iva M. Chandler in equal parts, my entire tract of real estate and the improvements thereon located at 927 Kishwaukee Street, in Rockford, Illinois; such conveyance to be made subject to any unpaid indebtedness which at that time shall be a lien on such real estate.” On August 30, 1934, Mrs. Chandler wrote the following letter tó her attorney: “August 30, 1934 To: Morris J. Hinchcliff, Attorney, I send you herewith my promissory note payable to Melvin J. Chandler for the sum of $1,600.00, which note I irrevocably deliver. I have by my will devised to Melvin J. Chandler a tract of real estate in Rockford, and I desire that he receive the same free from any claim; there is now a mortgage on that property for $1,600.00, and I deliver the note in order that the principal sum mentioned may be used to pay off or counter balance such mortgage debt. If anything is paid on such mortgage debt, a credit in a like amount must be noted on the note which I send you. Maria E. Chandler.” Accompanying this letter was the following- note, viz.: “$1,600.00 Aug-ust 20, 1934 On demand after date, for value received, I promise to pay to the order of Melvin J. Chandler, Sixteen Hundred Dollars at .... with interest thereon at the rate of no per cent, per annum, payable....... annually, until paid. Maria E. Chandler.”

The note was presented as a claim against the estate of Mrs. Chandler and was disallowed by the probate court. Upon appeal to the circuit court, the claim was allowed and from that judgment an appeal has been perfected to this court.

Upon the hearing in the circuit court, Mr. Hinchcliff testified that the note and the letter were both delivered to him at the same time by Mrs. Chandler, with directions for him to deliver the note to Melvin J. Chandler, and a few days after Mrs. Chandler died, he delivered the note to Melvin J. Chandler and retained the letter in his own possession. He also testified that at the time these papers were delivered to him, Mrs. Chandler stated to him that Melvin had sustained some losses which she wanted to help make up and that she wanted him to have $1,600 in order that he might pay the mortgage on some property she had, if it was not otherwise paid. It further appears from the record that the property described in the foregoing clause of Maria E. Chandler’s will was incumbered at the time of her death to secure the payment of $1,600 and that the notes evidencing that amount had been filed as a claim against her estate and allowed by the probate court.

It is .insisted by counsel for appellant that the promissory note which forms the basis of appellees’ claim was intended as a gift by the deceased, was executed without consideration and is therefore void. Counsel for appellee contend that the delivery of the note to Hinchcliff must be deemed to have been a delivery to the claimant and if intended as a gift it was a completed and executed one by the deceased during her lifetime and is therefore valid.

It is apparent from the evidence that no consideration passed from the payee of the note which forms the basis of this claim to the maker thereof. The note was delivered to the payee after the death of the maker. At the time of its execution and delivery to Mr. Hinchcliff, the maker stated that the payee had sustained some losses which she wanted to help make up. From the contents of her letter and her statements, it is apparent that she wished the payee to have the principal amount of the note in order that he might be in a position to pay off a mortgage upon the incumbered property she had devised to him if the mortgage thereon had not been extinguished.

In Blanchard v. Williamson, 70 Ill. 647, the court in speaking of a note executed by testatrix for the sum of $1,000 due one year after date, said: “If a party delivers his own promissory note as a gift, it. is but a promise to pay a sum certain at a future day and we are not aware such a promise can be enforced, either at law or in equity. It could not be enforced against the maker in his lifetime, and his representatives could defend against it on the ground there was no consideration. 2 Parsons on Notes and Bills, 54 and notes; 2 Kent Com. 438.”

In Williams v. Forbes, 114 Ill. 167, the court said: “A note executed without any other consideration than that of natural affection, or one without any valuable consideration, intended as a mere gift, can not form the ground of recovery in an action at law. A gift is always revocable until it is executed, and a promissory note, intended purely as a gift, is but a promise to make a gift in the future. The gift is not executed'until the note is paid.” In Stump v. Dudley, 207 Ill. App. 587, the court said: “It is well settled law in Illinois that a promissory note intended as a gift, or made in pursuance of a void unenforcible contract, is without consideration.” In Kelly v. Dyer, 359 Ill. 46, and in Hershe v. Estate of Rinkenberger, 286 Ill. App. 494, it was said that a gift inter vivos must be complete to be valid, that a valid gift does not result when it is attempted to be made by the execution and delivery of a promissory note and the payee cannot establish a claim against the estate of the maker based upon such promissory note, for which there was no consideration.

Counsel for appellee seek to distinguish some of the foregoing cases because payment of the note in the instant ease was not conditioned upon the death of Maria E. Chandler but was payable “on demand after death” while in some of the cases, supra, the notes were payable upon the death of the maker. No authorities have been cited or found which sustain appellee’s contention and in Blanchard v. Williamson, supra, the note there involved matured by its terms one year after its date. The note here involved was payable on demand but being without consideration it could not have been enforced against the maker in her lifetime and the representatives of her estate can make the same defense which she could have made. By the letter which accompanied this note, the deceased stated it was her wish that Melvin would take the property in her will devised to him free of any incumbrance and that she was giving him the note so that the proceeds thereof might be used to discharge the incumbrance thereon. This was in effect an effort upon her part to alter the terms and provisions of her will, but she failed to observe the requirements of our statute relative to the execution of testamentary instruments.

The judgment of the circuit court is reversed with a finding of fact to be incorporated in the record of this court, that the note upon which the claim of appellee is based was a mere promise to make a gift and was without consideration.

Reversed with finding of fact.


text:
    The People of the State of Illinois ex rel. Carter Euziere, Appellee, v. William Rice, Appellant.
    Gen. No. 9,185.
    Opinion filed May 18, 1937.
    Eva L. Minor, of Kankakee, for appellant.
    A. L. & C. M. Granger, of Kankakee, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

On March 29, 1930, the relator herein recovered a judgment in the circuit court of Kankakee county against the commissioner of highways of the town of Rockville for $1,290.18 and costs of suit. This judgment was affirmed by this court, Euziere v. Highway Com’r, 260 Ill. App. 29, and by the Supreme Court of this State, Euziere v. Highway Com’r, 346 Ill. 131. Thereafter, on September 7, 1932, relator filed a petition for a writ of mandamus to compel the commissioner to levy a tax to pay his judgment, resulting in an order awarding a peremptory writ of mandamus. This judgment was also affirmed by this court in People ex rel. Euziere v. Rice, 271 Ill. App. 606, and later the judgment of this court was affirmed by the Supreme Court, People ex rel. Euziere v. Rice, 356 Ill. 373. The final order of the affirmance of the judgment by the Supreme Court was filed in the office of the circuit clerk of Kankakee county on February 5, 1935, and at that time a writ of mandamus issued, commanding the commissioner of highways of the town of Rock-ville to levy a tax sufficient in amount to pay the aforesaid judgment. This writ directed the commissioner to include in the taxes levied for road and bridge purposes as made and certified on September 4, 1934, an amount sufficient to pay the judgment, interest and costs. To this writ of mandamus, appellant filed a return on February 13, 1935, showing an attempted compliance with said writ by inserting by way of interlineation in the certificate of levy for road and bridge purposes for the year 1934, the following: “For payment of Euziere judgment, interest and costs, $1,700.00.” The return also set up the invalidity of making* this amendment or change in the levy for the year 1934 and it appears that this amendment was of no benefit to relator because nothing was realized from so amending said certificate of levy.

Thereafter and on July 26, 1935, relator filed a petition in the circuit court for a rule against the commissioner to show cause why he should not be adjudged in contempt of court for failure to comply with the judgment of that court rendered on September 14, 1932, awarding* the writ of mandamus, A hearing was had on this petition and a writ of mandamus was issued directing the commissioner to make a levy sufficient to pay relator’s judgment and the commissioner was directed to amend his certificate of levy for 1935 and levy $300 to apply on appellee’s judgment, or be committed to the county jail for 30 days for contempt of court. The court expressly retained jurisdiction of the Cause with leave to relator to apply for such further orders directing* levies to be made in order that his judgment might be satisfied. The commissioner made the levy as directed and filed the return to the writ of mandamus so showing.

Thereafter and on September 1, 1936, relator filed another petition for a rule against the commissioner to show cause why he should not be required to make further levy for the year of 1935 and to amend his certificate of levy accordingly, or be adjudged in contempt of court. To this petition the commissioner filed a reply alleging by way of excuse four different grounds: First, that the compliance with the writ of mandamus issued February 5, 1935, excused any further levy because the jurisdiction of the court was exhausted at that time; second, that the court was without jurisdiction to order another writ of mandamus on September 1, 1936; third, that the levy made on the first Tuesday in September, 1936, for road and bridge purposes had been extended for the full statutory rate for purposes other than the payment of this judgment; and fourth, that the levy of any amount to apply on relator’s judgment would interfere with essential governmental functions. Upon a hearing*, an order was entered requiring* the commissioner to amend his levy for 1936 by including in his certificate of levy an item of $285 to apply on relator’s judgment, and in default of making* such amendment, the commissioner was ordered committed to the county jail for 30 days for contempt of court. From this order, the commissioner has perfected this appeal.

The first contention of appellant is that when he filed a return to the peremptory writ of mandamus issued on February 5, 1935, by which return appellant disclosed an attempt to comply with its mandate, the jurisdiction of the circuit court was exhausted and the court was without jurisdiction to enter the order appealed from in this cause. The writ of mandamus issued by the circuit court on February 5,1935, required appellant, among other things, to “levy according to law, and certify to the Board of Supervisors of Kankakee County a tax sufficient in amount to pay and for the purpose of paying the judgment of the said Carter Euziere, together with legal interest thereon to date of payment and all costs incident to such judgment” and continued with a direction to appellant to recertify the amount to be levied for road and bridge purposes for the year 1934, and to amend the certificate of levy so as to include an amount therein for the payment of appellee’s judgment, interest and costs. There is nothing erroneous in the quoted portion of this writ of mandamus, but wherein it required appellant to amend his certificate of levy it required him to perform an act which the law would not permit and if he attempted to do so, his action was without legal force and effect. A tax must be levied before the time the law requires the tax books to be completed and in the hands of the county collector, which, under the statute in force at that time, was December 1, 1934. People v. Payne, 296 Ill. 483; People v. Chicago M., St. P. & P. Ry Co., 354 Ill. 630, 639; and the recent case of People v. Chicago & E. I. Ry. Co., 365 Ill. 202, 6 N. E. (2d) 119. The amendment by way of interlineation of the levy for the year 1934 made by the appellant in February, 1935, was of no legal force or effect and was a mere nullity.

Appellee insists that when he amended his certificate of levy for 1934 in February, 1935, for payment of appellee’s judgment, he compiled with the mandate of that writ and hence the jurisdiction of the court in that case was exhausted and the petition filed on September 1, 1936, cannot be maintained for lack of jurisdiction. We are unable to follow this line of reasoning. “The only proper return to a peremptory writ of mandamus is a certificate of compliance with its requisitions without further excuse or delay.” People v. Barnett, 91 Ill. 422, 434. Appellee’s return to the writ of mandamus issued on February 5, 1935, only certified a compliance with that portion of the writ which was unwarranted and which should not have been included in the writ. There was no certificate of compliance, nor has there ever been any compliance, with that portion of the mandate of that writ which was legal and proper. Under the judgment of the circuit court rendered on September 14, 1932, and the writ of mandamus issued on February 5, 1935, it was, in our opinion, proper for appellee to apply to the circuit court which issued the writ for an alias writ. The jurisdiction of the circuit court had not, in our opinion, been exhausted by the writ issued on February 5, 1935 inasmuch as a full compliance therewith had not been made by appellee. People ex rel. Illinois Midland Ry. Co. v. Supervisor, 100 Ill. 332.

The petition filed on July 26, 1935, by appellee against the appellant, and the alias writ of mandamus issued pursuant thereto were regular and proper because appellant had not complied with that judgment or with that portion of the writ of mandamus requiring appellant to “levy according to law, and certify to the Board of Supervisors of Kankakee County, a tax sufficient in amount to pay and for the purpose of paying the judgment of the said Carter Euziere, together with legal interest thereon to date of payment and all costs incident to such judgment. ’ ’ The order of court entered on September 6, 1935, after a hearing on that petition, directed appellant to make a levy of $300 to apply on appellee’s judgment and ordered “that the Court retain jurisdiction herein and that relator have the right to apply to the Court if necessary to obtain a further levy or levies to apply on or satisfy his judgment.” It thus appears that by the order of September 6, 1935, the court retained jurisdiction of this cause and continued the case for the purpose of ordering a further levy or levies.

In 38 Corpus Juris, page 936, it is said: “Where complete relief cannot be given otherwise, on account of the condition of the proceedings, the court may grant a continuance of the proceedings to permit perforruance; as, where the command is to levy a tax to pay a judgment, and it is necessary to distribute the tax through successive years, the cause may be continued and such orders made as the case may require. ’ ’ 19 American and English Encyclopaedia of Law, 2nd ed., page 900. The court having* retained jurisdiction of this case by continuing the same in its order of September 6, 1935, and that order having* been in nowise set aside or reversed, the petition of September 1, 1936 was properly made and filed by the appellant and the order entered on that day is still in full force and effect, a compliance with which may be compelled by appropriate proceedings. The jurisdiction of the court having been retained in this cause, the court still had the power and authority to entertain the petition filed on September 1, 1936 and to enter the order appealed from in this case.

Appellant’s other contention that a compliance with the judgment of the court will prevent the appellant from carrying on essential governmental functions is equally without merit. What the Supreme Court held in People v. Rice, 356 Ill. 373, was that the question of whether the payment of appellee’s judgment would prevent appellant from carrying on essential governmental functions was not presented to that court by any answer or supported by any proof.

The evidence introduced by appellant upon the hearing of the petition on September 1, 1936 in support of his reply showed that appellant had levied for road and bridge purpose's the rate of 25 cents and the eight cents additional rate authorized by the statute; that there was a balance of $31.17 in the road and bridge fund; that anticipation warrants in the amount of $1,340 were outstanding against the levy of 1935; that there were about 50 or 60' miles of roads in the town of Rockville and 40 plank bridges and several corrugated culverts to maintain. Appellant further testified that the levy for the road and bridge fund calls for an amount of $2,752.12 for the year of 1936, and that in his opinion all of this amount would be necessary for the purposes for which they were levied. He further testified that in his opinion he would “not be able to levy anything to pay on the Euziere judgment without seriously injuring the town business.” This proof was not sufficient to show that the levy and payment of $285 on the Euziere judgment would prevent the carrying on of essential governmental functions by the appellant. There is nothing in the evidence that discloses that any essential governmental functions would be prevented or interfered with because of the levy and payment of this item of $285 excepting the conclusion not based upon any facts appearing in the record, expressed by the appellant that it would seriously injure the town business. He does not in any manner say in what way or means the essential governmental functions would be prevented, interfered with or injured. There appears to be no basis from anything in his testimony to warrant appellant’s opinion in this regard except, perhaps, his own unwillingness to make any levy to pay appellee’s judgment. This appeal, it occurs to us, seems to have been prosecuted more with a view of delay than in determining any serious question of law. The obligation of the commissioner of highways of the town of Rockville having been fixed and determined by a judgment affirmed by the Supreme Court, appellant should more properly exercise his talent toward the paying of that judgment rather than the prosecuting of unwarranted appeals in order to delay appellee in the collection of his judgment. The judgment of the circuit court is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Stone

text:
    The People of the State of Illinois ex rel. Oscar Nelson, Auditor of Public Accounts of the State of Illinois, v. Illinois Bank and Trust Company. Hattie E. Hudelson, Appellant, v. Charles B. Albers, Appellee.
    Opinion filed June 3, 1937.

      Herbert Hays, of Carbondale, and Wham & Wham, of Centraila, for appellant.
    William H. Hart, of Benton, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

On the 21st day of March, A. D. 1930, Hattie E. Hudelson delivered to the Illinois Bank & Trust Company of Benton, Illinois, Thirty-Three Thousand Dollars in pursuance of a written instrument, which is substantially as follows:

“Receipt and Declaration op Trust.
“This Indenture made and entered into this the 21st day of March, A. D. 1930, by Illinois Bank and Trust Company of Benton, Illinois, a Bank and Trust Company duly organized and existing under the laws of the State of Illinois, and authorized and empowered to do a trust business, witnesseth :
“That whereas, Hattie E. Hudelson of Carbondale, Jackson County, Illinois, has this day delivered to the undersigned Bank and Trust Company at Benton, Hlinois, the sum of thirty-three thousand ($33,000.00) dollars in cash, the receipt of which is hereby acknowledged and confessed, which sum is now a trust fund and shall remain a trust fund in the possession of the undersigned to be invested in such securities as the undersigned as trustee shall see fit, at its own risk, and hold the same as such trustee and convert the same from time to time into cash, so as to perform the requirements hereinafter stated; said bank to have no right, title or interest in or to said trust fund, but to hold the same in trust for the use of said Hattie E. Hudelson, her heirs, executors, administrators and assigns.
“In consideration of the premises, said Illinois Bank and Trust Company of Benton, Illinois, hereby covenants and agrees that out of said funds so held, to pay said Hattie Hudelson the cestui que trust, the sum of three thousand ($3,000.00) dollars in cash one month from the date hereof, and out of said trust fund pay to her the sum of three thousand ($3,000.00) dollars in cash two months from the date hereof, and out of said trust fund pay to her the sum of three thousand ($3,-000.00) dollars in cash each month thereafter until said trust fund is wholly depleted and said thirty-three thousand ($33,000.00) dollars has been returned to said Hattie E. Hudelson; that in addition to said payments, said trustee will further pay to said Hattie E. Hudelson interest at the rate of 5 per cent per annum, payable quarter annually, on the trust property remaining from time to time in its care and supervision, no deduction to be taken from said payments for said services, same to be for the benefit of said Hattie E. Hudelson; that the relationship herein created shall be and remain in the nature of a trust, and that the relation of debtor and creditor between said parties is not created by this transaction.
‘ ‘ This declaration of trust to be for the benefit of said Hattie E. Hudelson, her heirs, executors, administrators and assigns.
“In testimony whereof the Illinois Bank & Trust Company, a corporation, hath hereunto caused its corporate seal to be affixed and these presents to be signed by its president and attested by its Gasifier, this the 21st day of March, A. D. 1930, pursuant to the resolution of its board of directors.”

The bank afterwards went into liquidation and at the time of this suit the assets were being administered by Charles H. Albers, successor to William L. O ’Connell, receiver of said bank.

Proceeding was had in court to enforce the balance due of said $33,000 as a preferred claim against the assets of said bank. The court denied said claim preference, but allowed it as a general claim. It is from that judgment that this appeal is prosecuted.

No question is made with reference to the proper presentment of the claim. No dispute exists as to the facts involved.

Said bank was not at the time of receiving this amount of money qualified to do a trust business in Illinois. However, it represented itself to Mrs. Hudelson to be so qualified. Appellant relied upon this representation.

Upon the delivery of said amount of money the same was, without the knowledge or consent of appellant, placed in a general account and mingled with the assets of the bank. Each month thereafter until the bank’s closing, appellant received payments as provided in and by said instrument. Thereby said fund was reduced to $15,000 — the sum which appellant .now claims as a preferred claim.

At the time of the acceptance of the fund the bank had cash assets consisting of $98,296.52 cash on hand and $254,433.22 in cash on deposit in other banks. At the time of the closing of said bank the actual cash assets consisted of $17,756.47, made up of cash on hand, cash on deposit in other banks, and overdrafts. The bank’s cash resources were at their lowest ebb on the day immediately prior to the closing, when they aggregated the sum of $15,403.22.

The question to be determined is whether the delivery of the $33,000 as it was delivered was impressed with a trust, thereby entitling appellant to have the balance of her claim allowed as a preferred claim.

In People ex rel. Russell v. Farmers State and Savings Bank of Grant Park, 338 Ill. 134, our Supreme Court said:

“As to whether or not the account ivas a trust fund under the facts of this case depends primarily upon the kind of deposits made by plaintiff in error. There are but two kinds of deposits: special and general. The former include those where the bank becomes a trustee for a depositor by special agreement or under cireumstances sufficient to create a trust, and general deposits are those where the bank merely becomes the debtor of the depositor. As a rule, when money is deposited in a bank, title to such money passes to the bank. The bank becomes the debtor of the depositor to the extent of the deposit, and to that extent the depositor becomes the creditor of the bank. Such deposit then constitutes a part of the assets of the bank, and in case of insolvency of the bank that deposit belongs to the creditors of the bank in proportion to the amount of their respective claims. Well recognized exceptions to this rule are, first, where money or other thing is deposited with the understanding that that particular money or thing is to be returned to the depositor; second, where the money or thing deposited is to be used for a specifically designated purpose; and third, where the deposit itself was wrongful or unlawful.”

The recitals that this fund was to be a trust fund and so continue and that the relation of debtor and creditor was not to exist are as plain as the English language can make them. There is no evidence in the record tending to deny, explain or modify these provisions. We must take them at their face value, as the understanding of the parties, or else conclude without evidence that the parties did not mean what they said. The only escape from this is to find something in the instrument itself or something* in the conduct of the parties after executing the instrument which would make it appear that said instrument was not intended to be what it purports to be. There is nothing* to indicate that appellant regarded the transfer of this money as a loan or a general deposit. She left it with the bank for the purpose of buying securities and no other purpose. True the bank was to be the judge of the securities in which the money was to be invested. This, however, is not unusual. People having* little or no experience in financial transactions often leave to the banks the advisability of investments. This money, in the mind of appellant at least, was to be applied for a specifically designated purpose. This being the case no conduct on the part of the bank could destroy the relationship of trustee and cestui que trust without the consent of the cestui que trust. People v. Bates, 351 Ill. 439. If the bank saw fit to deceive appellant in this transaction it would not change the bank’s responsibility, as trustee. If it unlawfully and against its written agreement commingled this money with its other deposits, it would be a wrongful or unlawful deposit and impressed with a trust on that account. People ex rel. Russell v. Farmer’s State Bank, supra.

The case of People v. Bates, 351 Ill. 439, recites the facts that Mrs. Bates had her bank, the H. N. Schuyler State Bank of Pana, collect a claim for her on a mortgag’e which she held in New York, for the sum of $4,725'. Upon the collection of this money Mr. Schuyler of that bank advised her to make an investment in a mortg’age in Illinois; that thereby she could handle it better. She agreed with him that the money should so be invested for her. Some time thereafter, she came back and complained that she had nothing* to show for her investment. Thereupon Mr. Schuyler gave her the following:

“H. N. Schuyler State Bank,
Pana, Illinois, April 27/29, 19..
$4725.00
“Received from Mrs. Martha Mitchell Bates, forty-seven hundred twenty-five and no/100 dollars.
“To be invested in mortgage loans.
H. N. Schuyler State Bank,
N. S.”

Immediately after receiving the proceeds of this collection the Schuyler Bank made out a certificate of deposit, but left it in a pigeonhole somewhere and did not send it to Mrs. Bates. Afterwards a bank examiner discovered it and sent it to her. Then she filed her claim to have the amount of her supposed investment allowed as a preferred claim. The Supreme Court, in passing on the case, held as follows:

“The material question is whether or not the transaction between plaintiff in error and the Schuyler Bank established a trust in the fund. In People v. Farmers State Bank, 338 Ill. 134, we said: ‘There are but two kinds of deposits: special and general. The former include those where the bank becomes a trustee for a depositor by special agreement or under circumstances sufficient to create a trust, and general deposits are those where the bank merely becomes the debtor of the depositor. ’ In this case the money was not left at the bank to be credited to the general account of Mrs. Bates or as a time deposit. It was not subject to check and the bank had no right to mingle it with other funds. The receipt given to Mrs. Bates specifies the purpose for which the money was left and conclusively impresses it with a trust. No change in the status or form of the trust fund could without her consent divest it of the trust. (Woodhouse v. Crandall, 197 Ill. 104.) She is not compelled to look to the amount on deposit in the Chemical National Bank to the credit of the Schuyler Bank for reimbursement. The fact that the Schuyler Bank deposited the money in a correspondent bank cannot abridge the right of plaintiff in error to recover it out of the mass of money left in the Schuyler Bank and which on the date of its closing was in excess of plaintiff’s claim. It is the identity of the fund, and not the identity of the money or currency, which is to be established. It is not necessary, if the trust be money, that the particular coin or kind of money or the individual pieces shall be identified in order to pursue it, but it is the identity of the fund which must be preserved. It makes no difference, on the question of identity, that the fund was mingled with other moneys of the bank. So long as it can be identified, either as original property of the cestui que trust or as a product of it, equity will follow it, and the right to reclaim it fails only when the means of ascertaining its identity fails. (Woodhouse v. Crandall, supra.) The modern doctrine as now established is, that where the form of trust property is changed by a fiduciary and the proceeds mingled with the mass of the assets comprising his insolvent estate the cestui que trust may resort to the mass if augmented by the trust property. Sorenson v. Farmers State Bank of Polk, 121 Neb. 532, 237 N. W. 857; Macy v. Roedenbeck, 227 Fed. 346; In re City Bank of Dowagiac, 186 id. 250.”

This rule was also followed by this court in the case of People ex rel. Nelson v. Citizens State Bank, 274 Ill. App. 468.

Holding as we do by authority of the aforesaid cases that this money was impressed with a trust, either by the understanding of the parties or by the unlawful act of the bank, we see nothing in point in the argument that the bank pledged its assets to secure this claim. Neither are we influenced to the point of decision, at least, with the fact that this money went back to the claimant, so much every month, with interest thereon,- — ■ that that destroyed the transaction as a trust and created the relation of debtor and creditor. As before said, though no cases have been cited in Illinois and maybe none has been adjudicated, — experience shows that this is not an unusual mode of procedure. It is entirely consistent with the investment of the fund in short loans at five per cent interest, payable in such manner as that appellant could have the amount monthly which she was to have.

Moreover, in many other jurisdictions it has been held that the collection of interest does not destroy the instrument as a trust instrument. Andrews v. Hood, 207 N. C. 499, 177 S. E. 636; Conley v. Johnson, 101 Mont. 376, 54 Pac. (2d) 585; State ex rel. Sorenson v. American State Bank, 126 Neb. 34, 252 N. W. 460.

We are of the opinion that the trial court erred in refusing to allow this claim as a preferred claim. We are likewise of the opinion that her claim is a lien upon the moneys now in possession of the trustee subject to the right of other claimants similarly situated as appellant to participate therein and that her claim is a preferred claim against other assets of the bank hereafter to be collected.

The judgment of the trial court is reversed and remanded with directions to that court to take further proceeding's in harmony with the views herein expressed.

Reversed and remanded with directions.


author: Mr. Justice Edwards

text:
    John Darwin Ellison, Appellant, v. Terzie K. Ward et al., Appellees.
    Opinion filed June 3, 1937.

      D. F. Moore, of Benton, and Henry T. Martin, of Chicago, for appellant.
    Roy C. Martin, Layman & Johnson, Williams & Harrison, William H. Hart and Hickman & Hickman, all of Benton, for appellees; Moses Pulverman, of counsel.
   Mr. Justice Edwards

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Franklin county dismissing a suit brought by John Darwin Ellison, a minor, by his mother and next friend, against Terzie K. Ward, trustee of the estate of Bobert B. Ward, deceased, et al. The reason for the dismissal was the failure of plaintiff to file a cost bond within the time limited by rule of the trial court. Complaint is also made that the chancellor erred in denying plaintiff’s motion for leave to file an amended and supplemental bill. Defendants have moved to dismiss the appeal, and have filed suggestions in support of same, to which plaintiff has answered by counter-suggestions. The basis of the motion to dismiss is that the record on appeal was not filed in this court in apt time.

Notice of appeal was filed in the trial court on August 11, 1936, and the record was filed in this court on October 23, 1936. Number 36 of the Buies adopted by the Supreme Court, to supplement the Civil Practice Act, among* other things provides that when the praecipe filed in the lower court, following* the filing of notice of appeal, does not specify any proceedings at the trial, the record on appeal shall be transmitted to the reviewing* court not more than 30 days after notice of appeal has been filed, and that when the praecipe does specify any such proceedings at the trial, the record shall be transmitted to the reviewing* court not more than 30 days after the report of proceedings has been filed in the trial court; such report to be filed in the trial court within 60 days after filing the notice of appeal. The praecipe herein specified a report of proceedings had before the trial court.

Defendants’ contention is that the nature of the matters heard in the trial court was such that the action of the court could be fully ascertained and understood by the records and files of the court, and that a report of proceeding’s was neither necessary nor proper, and that by filing a praecipe so specifying a report of proceedings, where one was not requisite, the party appealing could not extend the time for filing transcript in the Appellate Court beyond the 30 days after the notice of appeal was filed.

Whether or not, in this particular case, a report of proceedings was requiste or proper, we do not find it necessary to decide, for the reason that upon the record as made, relative to the motion to dismiss the appeal, we do not think defendants are in a position to raise the question.

It appears that there was considerable controversy between counsel as to the need for reports of the proceedings and hearing’s had before Judge Pearce relative thereto. On July 24, 1936, counsel for defendants wrote to the attorney for plaintiff as follows: “It is difficult to understand or follow your theory in presenting ‘a proposed report of proceedings’ which leaves out the essential matters on which this ease turned in the trial court and will necessarily turn in the higher courts. Of course we cannot approve or O. K. a report which does not show or purport to show the proceedings.”

On September 22, 1936, plaintiff’s attorney left at the office of one of defendants’ counsel the proposed transcript of the record, and the reports of proceedings had before the trial court on July 3,1936, March 7, 1936, May 18,1936, and June 19,1936.

On September 25, 1936, defendants’ counsel wrote to the attorney for plaintiff a six-page typewritten letter, setting forth many objections thereto; in the course of which letter defendants’ counsel stated: “Accordingly we have heretofore insisted, and shall continue to insist, before both Judge Hill and Judge Pearce, that no report of proceedings on May 18, 1936, or June 19, 1936, be signed by the judge or judges which does not fairly and truthfully set out what actually happened before each of those judges and the rulings which each of those judges actually made.” Also, in the same epistle, defendants’ counsel further stated: “In conclusion we repeat once more our frequent statement to you that we are now and have at all times been ready and willing to O. K. a proper, fair and true record of this case, and a proper, true and correct report of proceedings, but we can only reject and refuse to approve the improper and untrue report which you have submitted to date, as to the May 18th and June 19th proceedings.”

On October 6, 1936, reports of proceedings had before each, were respectively signed and certified to as correct by Judge Hill and Judge Pearce, and filed in the office of the clerk of this court on October 23, 1936.

It thus appears that defendants, until the filing of this motion to dismiss, were insisting that the transcript include all of the proceedings had before both judges, and that same be shown fully and completely. If the inclusion of the report of proceedings in the transcript was an error, it was one which was consented to by defendants, if not induced by their demands. We understand the rule to be that a party who by demands or conduct procures another to commit an irregularity in judicial procedure, is estopped to take advantage of the result which flows from his own actions. Lederbrand v. Pickrell, 167 Ill. 624. We think the conduct of defendants precludes them from insisting upon grounds raised in their motion to dismiss, and that the prayer of such motion should be denied.

The motion of defendants to dismiss the appeal is overruled. Defendants are ruled to file statement, brief and argument within 15 days of the filing of this opinion.

Motion overruled.


text:
    Enola Ledbetter et al., Appellants, v. C. A. Evans, Appellee.
    Opinion filed June 3, 1937.
    F. M. Guinn, of Vandalia, for appellants.
    J. G. Burnside, of Vandalia, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

Appellants brought an action to secure a mandatory injunction requiring appellee to remove a dam which he had erected across a small creek on his lands, and which it is claimed resulted in causing the surface waters to accumulate and overflow the premises of appellants, and also for an award of damages alleged to have resulted therefrom. After a hearing the court denied the relief which appellants sought, and the latter have perfected this appeal to reverse such order.

Appellee asserts that appellants have not set forth in their brief and argument the errors relied upon for reversal. Number 39 of the Buies adopted by the Supreme Court requires that in the brief of appellant the concluding subdivision of the statement of the case shall be a brief statement of the errors relied upon for a reversal. Buie 9 of this court provides that the brief of appellant shall contain, among other items, “the errors relied upon for a reversal.” It has been held by each of the other Appellate Courts of this State that failure to set out the claimed errors in the brief of appellant, as required by such rule, does not present anything for review. Farmers State Bank v. Meyers, 282 Ill. App. 549; Bender v. Alton R. Co., 284 Ill. App. 419; Travelers Ins. Co. v. Wagner, 279 Ill. App. 13.

We do not find that appellants have set forth in their statement what they contend were errors of the trial court. Had appellee, therefore, entered his motion to dismiss the appeal for that reason, the motion would have been allowed and the appeal dismissed. The question has not been so presented, however, and appellee has argued the cause upon its merits. We shall accordingly so consider it.

The evidence in the case represented the testimony of numerous witnesses upon both sides, who testified fully as to the effect of the dam in causing the surface water to accumulate; whether same resulted in overflow of appellants7 lands, and whether, when it did, it was of an extent to result in their damage. The testimony bearing upon these propositions was sharply conflicting, and the court might have found either way upon the questions of fact, depending upon which witnesses he believed.

The trial judge before whom the witnesses appeared, had the opportunity of determining their credibility, and the weight to be attached to the testimony of each, by the application of the usual tests of hearing and observance of the demeanor and conduct of such witnesses. The court was thus in a position superior to ours to decide such matters. The evidence raised a fair question as to the matters of fact involved, hence its determination as to such issues is conclusive unless a reviewing court can see that its conclusion was manifestly against the weight of the evidence. Tarjan v. Regelin, 202 Ill. App. 320; Joice v. Norman, 192 Ill. App. 285. Upon the record as presented we cannot say that such is true. Believing the finding was warranted, it will be affirmed.

Affirmed.


text:
    Manuel Wiseman, Appellee, v. Esther Wiseman, Appellant.

      Opinion filed June 3, 1937.
    Chapman & Motz, of Alton, and H. H. Cohn, of Springfield, for appellant; Leigh M. Kagy, of Edwardsville, of counsel.
    Manuel M. Wiseman, pro se; Gillespie, Burke & Gillespie, and Edmund Burke, of Springfield, and Green, Verlie & Hoagland, of Alton, of counsel.
   Mr. Justice Edwards

delivered the opinion of the court.

On October 2, 1934, respondent, Esther Wiseman, was awarded a divorce from her then husband, Manuel M. Wiseman, petitioner herein. The provisions of the decree gave her the right to resume her maiden name of Esther Cohen; rendered judgment in her favor against petitioner in the sum of $1,575 because of an indebtedness; awarded her, as alimony, the sum of $900 for the year beginning October 15, 1934; the sum of $1,200 for the year commencing October 15, 1935; the sum of $1,500 for the year beginning October 15, 1936, and the sum of $1,200 annually thereafter; each of said annual sums to be payable in semimonthly instalments.

On February 6, 1936, petitioner moved the court to modify the decree in respect to the matter of alimony, alleging that respondent was an able bodied person and able to provide for herself; that he had paid the $1,575 judgment and the $900 alimony for the year commencing October 15,1934, and that respondent had sufficient money for her support and maintenance. The court, after a hearing upon such petition, modified the original decree by providing that petitioner should be relieved of any payments of alimony after October 15, 1935, until the further order of the court. Respondent excepted to such modification and has appealed therefrom.

At the time of filing the motion to modify, petitioner was in arrears of alimony payments in the amount of $350. Respondent contends that because of such arrearage he stood in contempt of the terms of the original decree, hence did not come into court with clean hands, and as a consequence was barred, as a matter of law, from any standing on his motion to modify the alimony payments.

While a court of equity does not look with favor upon the petition of a litigant asking a modification of its decree when he is in default as to compliance with its terms, still it is not a rule of law that the petition shall be denied for that reason alone, as there may be existent conditions and circumstances beyond the control of petitioner which would render impossible, on his part, a compliance with the terms of the decree; hence the court will consider the whole situation in its effort to do even handed justice between the parties. Craig v. Craig, 163 Ill. 176. We do not think the chancellor erred in proceeding to hear the petition on its merits.

The only authority for modifying a decree of divorce, which obligates a party to make periodic payments of alimony, is Ill. State Bar Stats. 1935, ch. 40, H 19; Jones Ill. Stats. Ann. 109.186 (sec. 19 of ch. 40, Smith-Hurd R. S. 1935), providing inter alia that the court may on application, from time to time, make such alterations in its terms as to alimony payments as shall be reasonable and proper. This section has been construed to mean that it only empowers the chancellor to alter the decree for alimony when the situation or condition of the parties, or at least one of them, has changed since the rendition of the decree, and that this is the sole and only cause which authorizes a readjustment of alimony by supplemental decree. Smith v. Smith, 334 Ill. 370 ; Herrick v. Herrick, 319 Ill. 146; Maginnis v. Maginnis, 323 Ill. 113. It is also held that it must appear either that the wife no longer needs support or that the husband is unable to furnish same. Craig v. Craig, supra; Maginnis v. Maginnis, supra.

The petitioner did not aver any change in his station or status in life, hence such question is not an issue in the case and Will not be regarded. The allegations therein had to do with the former wife’s condition of health and financial ability.

The decree of divorce, based upon the court’s findings as to the status of the parties at the time of its rendition, "was res adjudicata as to previous conditions authorizing the alimony therein provided, and cannot be collaterally questioned in this proceeding; Smith v. Smith, supra; hence the inquiry now is whether the needs of the respondent have changed since the entry of the decree.

The testimony at the hearing was rather meager; petitioner merely deposing that in July, 1934, he owed his wife $2,570; that prior to the decree of divorce he had paid her all but $1,575 (the amount for which the decree awarded judgment); that he paid such latter item on February 6, 1936; that he had paid temporary alimony to the amount of $400, solicitor’s fees in the sum of $200, and alimony as ordered by the decree, from October 15, 1934, to October 15, 1935; and that he was in arrears from the latter date at the rate of $100 per month, which amounted to $350.

Respondent testified that she was, previous to her marriage, a school teacher, and at the time of the hearing, unemployed; that she had made efforts to secure a position as teacher and had been unable to do so; that of the money so paid to her by petitioner, she owed her brother $1,000, and had paid him, or for his use, $700, and Was still owing him $300; that she also was indebted to her mother in the amount of $1,000 which she expected to pay; that her brother was at the time supporting her, and that she had no property of her own and no income except her alimony.

It is thus seen that her condition had not been bettered since the divorce was granted. True, her husband paid her alimony for a year; this, however, was the amount which the chancellor found was reasonably necessary for her support. It is also a fact that he paid her $1,575, the amount of the judgment. This sum was rendered by the decree and was one of the items considered by the court in determining the amount of the periodic alimony payments. She was unemployed at the time of the divorce, just as when the petition to modify was heard, and so far as we can determirie from the proof, her condition as to health and finances was not materially different than it was on October 2, 1934, when the divorce was decreed and the alimony fixed by the court. The presumption is that the chancellor rightly determined same upon the conditions as they existed at the time, and petitioner is not entitled to a modification of same until he shows, under the averments of his petition, that her situation has changed and her necessity has been lessened or ceased since the rendition of the decree. Smith v. Smith, supra. This we do not think has been established by the evidence. Accordingly, the supplemental decree is reversed and the cause is remanded, with directions to the chancellor to deny the prayer of the petition.

Reversed and remanded with directions.


author: Mr. Justice Murphy

text:
    Bettie Davis, Appellee, v. East St. Louis and Suburban Railway Company, Appellant.

      Opinion filed June 3, 1937.
    Farmer, Klingel & Baltz, of Belleville, for appellant.
    P. K. Johnson, of Belleville, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

By this action plaintiff seeks to recover damages for personal injuries alleged to have been caused by the negligence of defendant in the operation of one of its street cars, operating between Belleville and Bast St. Louis. The case was before this court at the May term, 1934, when a judgment for plaintiff for $2,500 was reversed and the cause remanded. 276 Ill. App. 609. In the second trial plaintiff obtained a judgment for $5,750 and by this appeal defendant seeks a reversal of that judgment.

Defendant’s motions for a directed verdict and for a new trial were overruled and judgment was entered on the verdict May 25, 1936. June 26 following, defendant filed a motion to vacate the judgment and for leave to amend his motion for a new trial and for a further hearing on such motion. The motion was denied.

The basis of the motion was newly discovered evidence in the nature of impeaching testimony of the plaintiff’s witness, Laurence Cox. During the trial he testified that at the time of the accident he was hauling coal in a truck and was near the scene of the accident, when plaintiff fell from the steps of the street car; that he assisted her from the pavement, placed her in his truck and drove to her home. The affidavits filed to support the motion show that on the date preceding the accident, Cox attended his sister’s wedding at Benton, Missouri, and that on the date of the accident and for some time before and after that date, Cox was engaged in his work in Missouri. In view of the fact that plaintiff and Cox were the only eyewitnesses to the accident, defendant’s witnesses denying that there was such an accident, the materiality of the newly discovered evidence may be conceded.

The accident occurred February 12, 1931, and suit was filed February 10,1933. Plaintiff’s original declaration was filed March 31, 1933, and defendant’s general issue plea April 4, 1933.

The question is raised as to whether defendant’s motion to vacate the judgment is controlled by the provisions of the Civil Practice Act and should have been filed within 30 days after entry of the judgment or whether it is subject to the provisions of the statute as it existed prior to the adoption of 'the Civil Practice Act which permitted the filing of a motion to vacate a judgment at any time before the close of the term.

Par. 7, sec. 50, Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, Tí 178; Jones Ill. Stats. Ann. 104.050 (Smith Hurd, chapter 110, section 174), provides that the court may within 30 days after entry of a judgment or decree set the same aside for good cause shown upon terms and conditions that shall be reasonable.

At the time of the adoption of the Civil Practice Act and the effective date thereof, January 1,1934, certain amended sections of the Judgment Act became effective. Section 82, ch. 77, Smith Hurd (Ill. State Bar Stats. 1935, ch. 110 [Civil Practice Act], [[268; Jones Ill. Stats. Ann. 104.099), provides that every judgment, decree, or order final in its nature should become effective as a conclusive adjudication at the expiration of 30 days from the date of its rendition and section 84 provides that judgments, decrees or orders after the expiration of 30 days are to have the same force and binding effect as judgments or decrees, entered prior to January 1, 1934, had after the expiration of the term of court at which they were rendered.

Under the statute as it existed prior to January 1, 1934, a court was vested with power and authority to modify, set aside or vacate judgments or decrees for good cause shown at any time during the term of court at which they were entered but by the amendments, that authority is limited to a 30-day period next following the entry of the judgment. If no action is taken within the 30-day period, the judgment or decree has the same force and effect as judgments or decrees did under the prior act after the expiration of the term at which they were entered.

Defendant contends that the Supreme Court, pursuant to power vested in it by the provisions of the Civil Practice Act, adopted Bule 1 by which it designates what cases are controlled by the provisions of the Civil Practice Act and which are controlled by the Practice Act as it existed prior to January 1,1934.

It may be conceded that the date of filing suit, service and time of filing pleadings would bring this case within the class provided for in the last sentence of Bule 1 which is that “Except as provided by this rule or by written stipulation of parties, or by order of the court, upon notice and motion, proceedings instituted prior to January 1, 1934 shall not be governed by the Civil Practice Act” but the rule does not undertake to regulate the adaptation of cases to sections 82, 83 and 84 of the Judgment Act. These sections of the judgment act and paragraph 7 of section 50 of the Civil Practice Act deal with the same subject matter and are not in conflict, the former being a more detailed and clearer expression of legislative intent than paragraph 7 of section 50.

The motion to vacate the judgment in this case is controlled by sections 82, 83 and 84 of the Judgment Act (Ill. State Bar Stats. 1935, ch. 110 [Civil Practice Act], [[][ 268-270; Jones Ill. Stats Ann. 104.099-104.101), and since it was not filed until after the expiration of 30 days from date of entry, it cannot be allowed.

Defendant further contends that the judgment should be reversed on the grounds that the verdict is not supported by a preponderance of the evidence and takes the position that the evidence does not establish the fact that any accident happened as plaintiff claims.

Plaintiff testified that as she was leaving the car, going down the steps, the car suddenly started or jerked and she was thrown to the pavement. Witness Cox corroborates her evidence on this point. John Hall, a passenger on the car, called by the plaintiff, testified that he saw plaintiff on the street car but did not see her fall and had no knowledge that she had fallen. Witness Juengel who was in the vicinity of the scene of the accident when it happened testified he did not see plaintiff fall but saw some persons assisting her from the pavement and placing* her in a truck. Defendant ’s witnesses, including the motorman and conductor, testified that no such accident happened. With this conflict in the testimony the matter was properly submitted to the jury and the court cannot substitute its views for the findings of the jury upon such controverted matters. Two juries passed upon this case, each finding the issues for the plaintiff and while there are some things in the evidence that would cast suspicion upon the testimony of certain witnesses who testified for the plaintiff, we cannot say as a matter of law that the verdict and judgment is not supported by the evidence.

Defendant contends that the court erred in admission of evidence. Dr. Eeuss who had treated plaintiff for her injuries was asked the question if a woman afflicted with hernia as he had described plaintiff to have, had fallen from a street car onto a pavement, who had previously been in good health, without hernia, whether or not in his judgment that fall would have been sufficient to cause and bring about the condition he had described. The court sustained an objection and in its ruling stated that the witness cannot invade the province of the jury but he can state as a medical proposition whether that was sufficient and might have — not that it would have or did have, or in his judgment did — but whether it might have caused the injury. The witness answered, it might have caused the injury. In Kimbrough v. Chicago City Ry. Co., 272 Ill. 71, 77, the court said “A physician may be asked whether the facts stated in a hypothetical question was sufficient, from a medical or surgical point of view, to cause and bring about a certain condition or malady, or he may be asked whether or not a given condition or malady of a person may or could result from and be caused by the facts stated in the hypothetical question, but he should not be asked whether or not such facts did cause and bring about such condition or malady.” The court’s ruling was in accord with this rule.

Defendant’s final contention is that the verdict is excessive and the result of passion and prejudice. In its argument on this point defendant is content with making the general statement that the damages are excessive.

We have examined the record in reference to the injuries proven, pain suffered, loss of time and probably durations of such injuries and we are satisfied that the damages awarded are supported by the evidence. There were witnesses called in this trial who did not testify in the former hearing; there was an amendment to the declaration alleging injuries in addition to those contained in the declarations on the first trial. Throughout this trial the case was defended on the theory that no accident happened and that if plaintiff had physical ailments she had received them prior to the accident in question.

The judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    George W. Conour, Appellee, v. Aaron H. Zimmerly and W. P. Zimmerly, Appellants.

      Opinion filed June 3, 1937.
    Donovan D. McCarty and S. C. Lewis, both of 01-ney, for appellants.
    Roy E. Boley, of Olney, and Kasserman & Kasserman, of Newton, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

January 15, 1934, plaintiff obtained a judgment by confession against defendants. On defendants’ motion the judgment was set aside and defendants were given leave to plead. February 27, they filed an answer alleging new matter and a counterclaim. Plaintiff did not reply within 20 days as required by subsection 3, Rule 8 of the Supreme Court rules. No formal entry of default was entered of record but on April 16 plaintiff filed a motion, supported by affidavit, asking that the default be vacated and that he be given leave to reply to defendants’ answer and counterclaim. The motion was allowed and the court ruled plaintiff to plead to the issues instanter. The court’s ruling* is assigned as error.

Subsection 5, Rule 8 of the Supreme Court Rules provides that the judge, for good cause shown on special motion after notice to the opposite party may extend the time for putting in any pleading* or the doing* of any act which is required by the rules to he done, within a limited time, either before or after the expiration of the time.

Plaintiff’s affidavit filed in support of his motion stated as an excuse for his failure to reply within 20 days that court was not in session after February 27th until April 16th, that he had prior to February 27th employed counsel to represent him in this suit, and that he had a mentorious defense to the matters alleged in defendants ’ answer and counterclaim. Plaintiff’s attorney also filed an affidavit alleging* that he had sickness and death in his family during said period.

Prior to the adoption of the Civil Practice Act the granting of time to plead was in the discretion of the court and was not reviewable on appeal except for an abuse of discretion. Culver v. Hide & Leather Bank of Chicago, 78 Ill. 625; Cozzens v. Chicago Hydraulic-Press Brick Co., 166 Ill. 213. There is nothing* in the Supreme Court rule referred to that would justify a departure from that procedure. Under the showing made there wtas no abuse of discretion in allowing plaintiff to reply to defendants’ answer and counterclaim even after the expiration of the time fixed by said rule.

This action was to recover the balance unpaid on a $7,000 note which had been given by defendants to plaintiff as a part of the consideration for the purchase from plaintiff of 105 shares of stock in the Midland Trail Bus Line Corporation. A written contract provided for the giving of the note, the payments thereon and the transfer of the stock. Defendants’ answer and counterclaim are based upon alleged breaches of certain provisions of the contract. The contract provided that the note was to be paid in instalments of $100 per week and that the stock was to be held in escrow by certain named banks as security to the note. Provision was made for the release of a certain amount of stock as the payments were made.

Paragraph 3 of the contract provided that the plaintiff was not, for a period of five years thereafter, to engage in or be interested directly or indirectly, individually or as an agent in the business of a common carrier of persons or personal baggage for hire for any bus or transportation company operating upon State Highway Route No. 12 between East St. Louis and Law'renceville, except with the consent of defendants ; that the good will of plaintiff was one of the considerations for the execution of the contract.

At the conclusion of all the evidence the court directed a verdict for the plaintiff for $3,395, the balance due on the note.

The allegation in defendants’ answer is that the sole consideration for the note was plaintiff’s agreement to sell the stock and his further agreement not to become interested in another bus line operating* over said highway. The answer further alleges that plaintiff has violated the latter agreement and has acted as agent for another bus line and concludes that by reason of such breach there is a failure of consideration of the note. The failure which defendants plead and rely upon as constituting failure of consideration arises from plaintiff’s failure to fulfill his agreement as expressed in the contract. In Gage v. Lewis, 68 Ill. 604, the court was considering the same question involved here and said:

“Treating the representations alleged in the plea as amounting to a contract between the plaintiff and the defendant, we fail to perceive a want or failure of consideration. The allegation is, that, relying upon these representations and promises, and for no other consideration, the defendant did, etc. These representations and promises, then, were the consideration, and the misfortune with the defendant is, not that he did not have them, or that anything has since transpired whereby he is not permitted to resort to them, but merely that he has not received the benefit from them which he was authorized to expect. In other words, he signed the bond upon the faith of a contract with the plaintiff, which the plaintiff has since failed to keep. The case would, in principle, have been nowise different had plaintiff agreed to have paid him a sum of money by a given day, in consideration of his signing the bond, and when the day arrived failed to make payment. It could scarcely be claimed in such a case, while the defendant would have had his remedy upon his contract, that there was no consideration, or that it had failed.”

This has been followed in Newton v. Clarke, 138 Ill. App. 196; Smith v. Western Trust & Guaranty Co., 150 Ill. App. 587; Schiavone v. Zingarelli, 191 Ill. App. 167; Graf v. Perlman, 209 Ill. App. 172; Crowther v. Bell, 190 Ill. App. 48; Denser v. McAvoy, 224 Ill. App. 359. Under the facts in this case plaintiff’s failure to perform the contract did not constitute a failure of consideration.

Defendants’ counterclaim was to recover damages for plaintiff’s breach of the same clause in the contract.

Before defendants could recover damages for a breach of the contract it was incumbent upon them to allege and'prove that they had performed the essential requirements of the contract or were ready and willing to do so. Purcell Co. v. Sage, 200 Ill. 342; Chicago Washed Coal Co. v. Whitsett, 278 Ill. 623. Defendants’ counterclaim contains no allegation that they had performed the contract or were ready and willing to do so. The evidence disclosed that they had broken the contract by failing to meet the weekly payments on the note. They did prove that at a time when they were in arrears in said payments that plaintiff came to them and told them that if they would pay him $300 at once he would “go along with them on the balance.” No definite time was fixed when the balance would be paid and after this payment the defendants continued in default. When action was brought on the note they were in arrears 15 weekly payments.

In Neil v. Kennedy, 319 Ill. 75, the court said: “Where there is a continuing cause.of forfeiture, the acceptance of payment after a breach incurring the forfeiture was originally committed will not preclude an insistence upon the forfeiture if the breach continue after the acceptance or a new breach occur.”

Defendants’ counterclaim did not state a cause of action. There was no evidence tending to support it. The court did not err in directing a verdict for the plaintiff.

Judgment of the circuit court affirmed.

Judgment affirmed.


author: Mr. Presiding Justice John J. Sullivan

text:
    In re Estate of Margaret Sheehan. Catherine McManmon, Appellee, v. Margaret Sheehan, Appellant.
    Gen. No. 39,227.

      Opinion filed June 8, 1937.
    Rehearing denied June 23, 1937.
    Francis E. Croarkin, of Chicago, for appellant; Edward McTiernan, of Chicago, of counsel.
    McDonald & Taylor, of Chicago, for appellee; John E. Taylor and Emmett M. McDonald, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.

A claim for $1,907 was filed in the probate court December 3, 1934, by Catherine McManmon, guardian of the estate of Mary Ellen McManmon, a minor, against the estate of Margaret Sheehan, insane. The claim was allowed by the probate court to the extent of $935.50 and upon appeal to the circuit court judgment was entered there allowing the claim in the same amount. This appeal followed.

This cause was heard upon a stipulation of facts. Briefly stated they are that on September 21, 1917, Nellie Carlin, as conservatrix of Margaret Sheehan, insane, and by order of the probate court, executed a promissory note for $1,000, secured by a trust deed on her ward’s real estate; that this note matured September 26, 1920, and June 14, 1921, $500 was paid to Hanna ICoberg, the then owner of the note; that shortly thereafter the note was purchased by Anthony J. Schmidt, as guardian of Mary Ellen McManmon, a minor; that Schmidt was convicted of embezzlement and committed to the state penitentiary; that September 12, 1934, Catherine McManmon, as successor guardian of the minor, reclaimed the note by order of the U. S. District Court, from the trustee of Schmidt’s bankrupt estate; and that December 3,1934, she filed a claim in the probate court for the amount due on the note with the accrued interest thereon against the estate of Margaret Sheehan, the original obligor on said note, which estate was and is still pending in the probate court.

Margaret Sheehan, who personally defended against the claim involved herein after her restoration to reason, contends that the statute of limitations ran against the holders of the note from June 14, 1921, when the $500 payment was made on it; that more than 10 years having elapsed from the time the cause of action accrued until the claim was filed, recovery by the guardian is barred by the limitation of the statute because the guardian was not under a disability; and that when the guardian is barred the minor is also barred. Claimant’s theory is that the claim accrued not to the guardian but to the minor, who is not barred from asserting it by the general limitation contained in the statute of limitations.

Therefore, the real and only question presented for our determination is whether, because the minor had a probate guardian during the statutory period, the statute of limitations bars recovery on a promissory note which she owns, and which was executed by the conservatrix of an insane person. Both estates are still pending in the probate court and no third party’s interests are affected.

Actions on promissory notes or other evidences of indebtedness in writing are barred if not brought “within 10 years next after the cause of action accrued,” or within 10 years after “any payment or new promise to pay shall have been made in writing.” (Ch. 83, par. 17, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 107.276.)

Par. 22, ch. 83, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 107.281, which was enacted for the benefit of those suffering from the disabilities enumerated therein, is as follows:

“If the person entitled to bring an action, mentioned in the nine preceding sections, is, at the time the cause of action accrued, within the age of twenty-one years, or if a female, within the age of eighteen years, or insane, or imprisoned on a criminal charge, he or she may bring the action within two years after the disability is removed. ’ ’

The minor’s situation in this case comes squarely within the class of disabilities thus expressly excepted from the operation of the general limitation. Although, under the statute, the minor had two years after the removal of her disability within which to file her claim on the note, her mother, as successor guardian, did not await the removal of such disability but filed the claim during her ward’s minority and shortly after she succeeded in reclaiming said note from the bankrupt estate of her predecessor guardian. Her action in so doing we deem proper, because under a reasonable interpretation of the statute the minor in the instant case had the entire period of her minority and two years thereafter within which to file her claim. (Carlson v. Jackson, 52 App. D. C. 51, 281 Fed. 411.)

It is the public policy of this State that courts should guard carefully the rights of minors and that a minor should not be precluded from enforcing his or her rights unless clearly debarred from so doing by some statute or constitutional provision. (Walgreen Co. v. Industrial Commission, 323 Ill. 194.) Not only is there no statutory or constitutional prohibition in this State against the minor’s claim in the case at bar, as and when asserted, but it has express statutory sanction, as heretofore shown, and surely the minor should not be deprived of her rights by the laches or neglect of a recreant guardian. In Muller v. Benner, 69 Ill. 108, cited by appellant, it is stated in the language of par. 17, ch. 64, Illinois State Bar Stats. 1935; Jones Ill. Stats. Ann. 57.17, on “Guardian and Ward” that the guardian has authority “to demand and sue in his own name, as guardian for all personal property and demands due the ward. ’ ’ The guardian has such authority and it is his duty to “demand and sue” in behalf of his ward, but it does not follow as a matter of law that if an unfaithful or heedless guardian does not prosecute his ward’s demand within, the general limitation period prescribed in the statute that the minor is thereby deprived of his or her statutory rights.

In view of the saving clause as to minors in our limitation statute, we are of the opinion that the rule in this State is that enunciated in Corpus Juris, vol. 37, p. 1020, wherein it is said:

“In some jurisdictions the rule is laid down that the statute of limitations begins to run against an infant when the cause of action accrues, the only effect of this disability being to give him, if the full limitation has run before he reaches his majority, a designated period thereafter within which he may sue, but not forbidding him to sue during his minority.”

In Illinois a guardian is not vested with the title to a minor’s estate, but is merely charged with its care and management. The title to the note in question was never in the guardian but remained at all times in the minor.

Appellant’s position is untenable because, while the statute authorized and made it the duty of the guardian to prosecute personal actions “as guardian” in behalf of the ward, the cause of action itself “for all personal property and demands due the ward” accrued to the minor. The note involved here unquestionably belonged to the minor and it necessarily follows that the cause of action resulting from its nonpayment accrued to such minor as the owner thereof. The appellant does not claim that the guardians in the instant case were the owners of the note but characterizes them as the holders of same. They were holders only in the sense that it was in their custody. How then can it be seriously urged that the statute of limitations ran against either of the guardians at all, in so far as the note was concerned, since the title to the note was in the ward and no cause of action thereon could possibly have accrued to such guardians 1 The statute of limitations began to run against the infant and not against the guardian when the infant’s cause of action accrued in the instant case and the effect of her disability under the saving clause in our statute was to give her, since the full limitation had run before she reached her majority, the entire period of her minority and two years thereafter within which to assert her claim.

It is unnecessary to further discuss the rule urged as applicable here that a minor is barred by limitations when his legal representative is barred, except to state that we have carefully examined all the authorities cited and find that this rule is applicable only where the legal title to the res is in the legal representative or trustee.

In so far as we have been able to ascertain, the question under consideration has never been presented to nor determined by a court of review of this State. This is true probably because it has been generally recognized that the specific exception in the statute as to minors preserves their rights for a period of two years after the removal of their disability.

This is not a case of a doubtful claim. Here we have two parties, each of them under a disability. Both the guardian of the one and the conservatrix of the other are officers of the same court. The court itself, not the guardian nor the conservatrix, is the protector of the minor and the feeble-minded or insane person. The estate of the latter through its conservatrix and under order of the court borrowed the money and admittedly owes it to the former. The trial court properly held that under the agreed facts and the express provisions of the statute, .the defense of the statute of limitations would not lie to defeat the minor’s honest and unpaid claim. The judgment of the circuit court should be and is affirmed.

Affirmed.

Friend and Soanlan, JJ., concur.