text:
    Agar Packing and Provision Company, Appellant, v. Frank Becker, Appellee.
    Gen. No. 9,450.
    Opinion filed August 18, 1939.

      J. J. Ludens, of Sterling, for appellant.
    Ward, Ward & Scheineman, of Sterling, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

The Agar Packing and Provision Company is a corporation doing business in Chicago, Illinois. A. D. Peckenbaugh was an employee of the company, selling its meats and other food provisions. On December 23, 1936, while in the employment of the said Packing* Company, he was traveling by automobile on a hard surfaced road from Morrison, Illinois, in a northerly direction toward Mt. Carroll. At that time his automobile collided with that of Frank Becker and through this collision, the said A. D. Peckenbaugh was killed.

A. D. Peckenbaugh left surviving him as his only dependent, his widow, Ellen Lawrence Peckenbaugh. Under and by virtue of the Workmen’s Compensation Act of Illinois, the Agar Packing* and Provision Company became liable to pay Ellen Lawrence Peckenbaugh, the widow, the sum of $15 per week until $4,000 was paid. The Packing* Company made voluntary payments, and is still making them to the widow, and settled with her without a claim being filed under the Workmen’s Compensation Act.

The Packing Company started a suit against Frank Becker for the wrongful death of A. D. Peckenbaugh. In their complaint they alleged the facts as above stated, and also charge that at the time Peckenbaugh was injured, Frank Becker was a farmer and was not bound by the Workmen’s Compensation Act of the State of Illinois. The suit is brought by the Agar Packing and Provision Company, the plaintiff, as the employer of the deceased, A. D. Peckenbaugh, under section 29 of the Workmen’s Compensation Act [Ill. Rev. Stat. 1937, ch. 48, §166; Jones Ill. Stats. Ann. 143.44]. They allege that under the law, they are entitled to maintain their suit against Becker, because they have been compelled to pay the widow of Peckenbaugh a large sum of money on account of said Workmen’s Compensation Act.

The defendant filed a motion to dismiss the suit and alleged the following reasons for doing so: “ 1. The only action for the injury complained of which might be maintainable against the defendant is an action on behalf of a personal representative of the deceased under the ‘Injuries Act’ because this defendant is not under the provisions of the Compensation Act.

e “2. The only statutory method by which an action for death survives, other than under the ‘Injuries Act’ is under the Compensation Act in a case in which the third party was under the Compensation Act or elected not to be bound by the Act, and this defendant does not fall within either one of those provisions.

“3. If the action is based upon subrogation, it woidd only be by reason of payment to the personal representative and not to the widow as is alleged in this case.

“4. That there is no legal liability to pay until the Industrial Commission has made an award and there has been some action taken against the plaintiff.” The court sustained the motion to dismiss the suit and entered judgment against the plaintiff for costs and it is from this judgment that the Packing Company is prosecuting an appeal in this court.

The question presented to the lower court and for this court to decide, is whether under section 29 of the Workmen’s Compensation Act, the Packing Company is subrogated to the rights of the personal representatives of the deceased, Peckenbaugh, against the defendant, Becker, for his wrongful death. An examination of this section of the act discloses that the first paragraph provides that where the employer, the employee and the third party who causes the injury, or wrongful death, are all under the act, there is no question but that the employer could maintain his suit. The second section of the act provides that where the employer and the employee are under the act and the third party who caused the injury might otherwise be under the act, but has elected not to be bound by it, there seems to be no question but that the employer can maintain his suit.

The difficulty arises where the employer and the employee are under the act, but the third party is not of a group in any way included in the act, such as in this case where the defendant is a farmer. If the act itself is not broad enough to give the plaintiff the right to sue, the suit cannot be maintained, as such an action was not known at common law, Crane v. Chicago & W. I. R. Co., 233 Ill. 259; Faber v. Industrial Commission, 352 Ill. 115. Under the “Injuries Act” the right of action is exclusively in the personal representative of the deceased person for the benefit of the widow and next of kin, and cannot be maintained by an individual. Van Meter v. Goldfarb, 317 Ill. 620.

Section 5 of sec. 29 of the Workmen’s Compensation Act [Ill. Rev. Stat. 1937, ch. 48, § 166; Jones Ill. Stats. Ann. 143.44] provides: “In the event the said employee or his personal representative shall fail to institute a proceeding against such third person at any time prior to three months before said action would be barred at law said employer may in his own name, or in the name of the employee, or his personal representative, commence a proceeding against such other person for the recovery of damages on account of such injury or death to the employee, and out of any amount recovered the employer shall pay over to the injured employee or his personal representative all sums collected from such other person by judgment or otherwise in excess of the amount of such compensation paid or to be paid under this Act, and costs, attorney’s fees and reasonable expenses as may be incurred by such employer in making such collection or in enforcing such liability.”

This statute gives the employer the right to maintain his suit against “such other third party” who has caused the injury, or death of the employee. The question is, who is meant by such other person, or third party"? If the suit can be maintained only against such third parties as are mentioned in the act, then it must be against such third party who is under the act, or one who might otherwise be under the act, but has elected not to be bound by it. It is conceded that the third party in this suit is a farmer and by section 3 of the act [Ill. Rev. Stat. 1937, ch. 48, § 139; Jones Ill. Stats. Ann. 143.18] expressly exempts farmers from the operation of the act.

We have carefully read all the cases that have been cited by both the appellant and appellee in this case, but the question presented here, so far as we are able to ascertain, has never been presented to the Supreme or Appellate Court. In all the cases presented, the third party was either under the act, or had elected not to be bound by it.

It is our conclusion that the person committing the injury to the employee, as designated in the 5th paragraph of section 29 of the act “as such other person” means such other persons as designated in paragraphs 1 and 2 of section 29 of the act.

We think the trial court properly held that the action could not be maintained and dismissed the suit and that the judgment is hereby affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Wolfe

license: Public Domain

text:
    William T. Middleton, Appellee, v. Commercial Investment Corporation, Appellant.
    Gen. No. 9,353.

      Opinion filed April 20, 1939.
    Rehearing denied October 3, 1939.
    Robert W. Besse, of Sterling, for appellant.
    Sheldon & Brown, of Sterling, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

William T. Middleton started suit to recover damages against the Commercial Investment Corporation for the value of three automobiles, which he claimed had been converted to its own use by the Commercial Investment Corporation. The plaintiff alleges that the defendant took three automobiles belonging to the plaintiff from the Wendel Motor Sales, and converted them to its own use. The plaintiff filed a bill of particulars in which he claims that Grlenn Wendel, doing-business as Wendel Motor Sales, was the third party who had possession of the cars; that on November 21, 1936, Wendel delivered to the plaintiff, a bill of sale and certificates of title for the three cars in question. The plaintiff alleged that he suffered loss in the sum of $835, but later amended his complaint and charged his loss to be $1,470'. The defendant filed its answer, in which it denied that the plaintiff owned the cars in question and denied any conversion of the same. The answer admits that it took the three cars in question from the Wendel garage. The defendant denied that the plaintiff was entitled to the relief prayed for. The defendant affirmatively stated that it was the owner of the three automobiles in question by virtue of a motor vehicle bill of sale, and trust receipt dated October 16, 1936, and another on October 16, 1936, and the other November 18, 1936, respectively. The defendant admitted that the plaintiff made a demand on it to deliver to him the three automobiles and that said demand was refused.

The case was tried before the court without a jury, which found the issues for the plaintiff and assessed the damages at $848.31. Judgment was entered upon this finding and the cost was assessed against the defendant and from this judgment the appellant has prosecuted this appeal.

The evidence shows that Glenn Wendel was doing business as the Wendel Motor Sales and had been in business buying and selling new and secondhand automobiles in the city of Sterling for about four years, and maintained a place of business in Sterling, Illinois; that in the fall of 1936, he took in trade three automobiles namely: a Studebaker President Sedan, a Studebaker Commander Sedan, and an Oldsmobile six-cylinder coupé; that in the fall of 1936, Wendel received certificates of title issued by the secretary of State to the three cars in question; that the cars were kept in Wendel’s salesroom at his place of business in Sterling, Illinois.

The record further shows that on October 28, 1936, Wendel executed the bill of sale and trust receipt for one of the cars and on October 16, a bill of sale and trust receipt for a second car. On November 18,1936, he executed a like bill of sale and trust receipt for the third car, and that these bills of sale and trust receipts were issued to the Commercial Investment Corporation, and at the same time the Motor Sales by Wendel, issued its negotiable promissory note to the Commercial Investment Corporation. The cars continued to remain in Wendel’s storeroom in Sterling*. The certificates of title were not delivered to the Commercial Corporation.

On November 21, 1936, while the cars were in the Wendel’s Motor Sales possession, Wendel executed three bills of sale to the cars, conveying them to the plaintiff, Middleton, and at the same time delivered the three certificates of title to Middleton assigned in blank. Just prior to this, Middleton had signed a note at the Central National Bank of Sterling, as security for Wendel’s note for $835. The cars still remained in the possession of Wendel. On February 8, 1937, the Commercial Investment Corporation took possession of the three cars and removed them from Wendel’s garage. This suit was started in September 3,1937.

There is very little dispute in regard to the facts in the case, with the exception of the value of the cars in question. That the Commercial Investment Corporation loaned money on each of these cars, and took a bill of sale and trust receipt for the same, is uncontradicted. It is not disputed that Middleton signed the note for $835 with Wendel at the bank, and took a bill of sale for the same three cars, or that at the time Middleton took the bill of sale, he had no knowledge that Wendel had given a bill of sale and trust receipt to the defendant investment corporation. The defendant set forth in its answer, and now claims that they are entitled to the possession of these cars, because they had a trust receipt properly signed by the Wendel Motor Sales, and that they had filed with the secretary of State the trust receipt and notice, and paid a proper fee for the same, therefore under the law, they were entitled to the possession of the cars at the time they took them from Wendel.

The part of the statutory provision relative to trust receipts is found under the title sales in Smith-Hurd’s Annotated Statute, ch. 121½ [Ill. Rev. Stat. 1937, ch. 121½, § 167; Jones Ill. Stats. Ann. 135.17 (2)] and provides: “(e) the entruster gives new value in reliance upon the transfer by the trustee to such entruster of a security interest in goods or documents in possession of the trustee and the possession of which is retained by the trustee; provided that the delivery under paragraph (a) or the giving of new value under paragraphs (b) or (c) either (I) Be against the signing and delivery by the trustee of a writing designating the goods, documents or instruments concerned, and reciting that a security interest therein remains or will remain, or has passed to or will pass to, the entruster, or (II) . . . The security interest of the entruster may be derived from the trustee or from any other person, and by pledge or by transfer of title or otherwise. . . . (2) A writing- such as is described in subsection one, paragraph (I), of this section signed by the trustee, and given in or pursuant to such a transaction, is designated in this Act as a ‘trust receipt.’ No further formality of execution or authentication shall be necessary to the validity of a trust receipt. (3) A transaction shall not be deemed a trust receipt transaction unless the possession of the trustee thereunder is for a purpose substantially equivalent to any one of the following: (a) In the case of goods, documents or instruments, for the purpose of selling or exchanging them, or of procuring* their sale or exchange. . . . ”

The appellees contend that the Sales Act, that part of which provides for this trust agreement, is, “Void and Unconstitutional because it is conflicting in its provisions, unintelligible and the title does not express the full scope of the act.” This court cannot pass on the constitutionality of a legislative act. If that question were properly broug’ht before this court, the case would have to be transferred to the Supreme Court. It is a well settled rule of law that any assignment of error which is not argued, is waived by the party who raised it. A mere statement that an act is unconstitutional because it is conflicting in its provisions, it is unintelligible, and the title does not state the full scope of the act, is not an argument of the question.

The appellee contends that even though the statute is a valid one, the defendants have not shown that they have complied with the statute so as to receive the benefit of it. Defendant’s Exhibit H is as follows: “Statement of Trust Receipt Financing. The entruster, Commercial Investment Corporation, whose chief place of business within this State is at Jacksonville and Quincy, Illinois, (or who has no place of business within this State and whose chief place of business outside this State is at Davenport, Iowa), is or expects to be engaged in financing under trust receipt transactions the acquisition by the trustee, Wendel Motor Sales, whose chief place of business within this State is at Sterling, Illinois, of goods of the following description: any motor vehicle, trailer, semi-trailer, truck, tractor, semi-trailer unit, bus and house-trailer.

Commercial Investment Corporation.

(Signed) By Entruster

(Signed) Glenn Wendel Trustee.”

Exhibit I is a letter from the Commercial Investment Corporation to the secretary of State listing the people with which the company transacted business. The Wendel Motor Sales of Sterling, Illinois, is named as one. Included was a check for $10 as filing fee, that is $1 each for the companies listed in the letter.

Mr. Schonlau, the credit manager for the Commercial Investment Corporation, without objection, testified that the trust receipt and notice was sent to the secretary of State of Illinois, prior to October, 1936. Complaint is made that the statement of the trust does not bear a file mark. Subsection 4 of section 178 of the Sales Acts [Ill. Rev. Stat. 1937, ch. 121½; Jones Ill. Stats. Ann. 135.17 (13)] provides as follows: “Presentation for filing of the statement described in subsection one, and payment of the filing fee, shall constitute filing under this Act in favor of the entruster, as to any documents or goods falling within the description in the statement which are within one year from the date of such filing, or have been within thirty days previous to such filing, the subject-matter of the trust receipt transaction between the entruster and the trustee.” It seems to us it is immaterial whether this statement of the trust, bears the file mark of the secretary of State. It was on file in the secretary of State’s office, which was notice to the public generally that the Commercial Investment Corporation was doing*" business with the Wendel Motor Sales. The record in this case discloses that the Commercial Investment Corporation subsequently complied in all respects with the statutory provisions in regard to such transaction, long prior to the time that the plaintiff started his suit.

.It is our opinion that the defendant is entitled to the possession of the cars, and is not guilty of converting them to its own use. The judgment of the circuit court of "Whiteside county is hereby reversed and cause remanded.

Reversed and cause remanded.


author: Mr. Presiding Justice Riess

text:
    State Bank of Jerseyville, Appellee, v. G. G. Reardon. N. D. Reardon, Executor of Estate of G. G. Reardon, Deceased, Appellant.
    Gen. No. 9,130.

      Opinion filed April 24, 1939.
    Rehearing denied October 3, 1939.
    Neal D. Reardon, of Jerseyville, for appellant.
    F. A. DuHadway and John W. Suddes, both of Jerseyville, for appellee.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

This is an appeal by defendant N. D. Reardon, executor of the will of Gr. Gr. Reardon, deceased, from a final order of the circuit court of Jersey county, Illinois, granting a countermotion by plaintiff appellee, State Bank of Jerseyville, a corporation, to strike defendant’s motion to set aside a sheriff’s sale of real estate made under an alias execution issued on a confessed judgment entered in vacation in said court against G-. Gr. Reardon, since deceased, and to set aside the certificate of purchase issued to the plaintiff therein.

It appears that on February 7, 1933, judgment by confession was so taken on a promissory note with customary provision for a confessed judgment, executed by Gr. Gi. Reardon, payable to the order of the plaintiff under the name and style of State Bank of Jerseyville, which judgment was for $3,529 and costs of suit and bore five per cent interest thereafter, on which execution was issued and returned by the sheriff “Not Satisfied.” The judgment was entered in the name of State Bank of Jerseyville, a corporation, and execution was issued thereon in favor of said State Bank of Jerseyville, a corporation. Subsequent thereto, the defendant maker of said note, Gr. Gr. Reardon, died testate and defendant N. D. Reardon qualified as executor of his last will and testament.

On June 20, 1933, defendant filed his first motion to set aside the above judgment and later filed an amended motion on October 14, .1933, which latter motion was withdrawn by the defendant on January 11, 1934. On June 25, 1936, an alias execution was issued on behalf of said judgment creditor, State Bank of Jerseyville, a corporation, which was served on defendant executor on June 27,1936, and certain alleged real estate of the defendant was levied upon on that day, and sale was advertised for August 8, 1936. The executor gave notice to plaintiff of an application to set aside the judgment and stay the sale, which stay order was granted on August 5th, and on September 11th following, the motion was heard and denied and the order staying the sale-under the execution was vacated and set aside.

Defendant thereupon attempted to appeal from said order to the Appellate Court of the Third District, which appeal was dismissed and leave to appeal therefrom was denied by the Supreme Court, and the mandate of the Appellate Court was duly filed with the clerk of said trial court. No supersedeas had issued on the appeal and the real estate was readvertised for sale by the sheriff of said county under a second alias execution on October 10, 1936, at which sale the property was first offered in separate tracts and then en masse and so sold to the plaintiff for $4,100, from which purchase price $Ill.95 costs were paid and the remainder of $3,988.05 was applied toward payment of the judgment, leaving a deficiency of $189.37, and a certificate of purchase subject to statutory right of redemption was issued to the State Bank of Jerseyville and recorded on October 14, 1936.

On October 8, 1937, the defendant executor was granted leave to file a motion and supporting’ affidavits to set aside the above execution sale and certificate of purchase, seeking to raise certain questions which had been decided in passing upon the prior motion to set aside the judgment and certain additional grounds were therein stated. The cross motion of the plaintiff to strike same was filed with supporting affidavits on December 4,1937, and allowed by the court, from which latter order this appeal is now pending. Both the motion and countermotion were supported by affidavits.

The first motion to set aside the judgment for alleged lack of jurisdiction, which was denied and from which the first appeal was sought to be taken, sought to set aside the judgment on the. grounds that the alleged variance between the name of the bank as the same appeared in the note and the specific judgment and execution rendered the original judgment void. The dismissal of the appeal from this judgment, followed by mandate of the Appellate Court, had disposed of the questions denying the court’s jurisdiction, which were settled in that case and are res judicata of the same issues sought to be raised upon this appeal. Where the question of the jurisdiction of the court has been raised and decided, the adjudication of the issue precludes the raising of the question again. Chamblin v. Chamblin, 362 Ill. 588, 1 N. E. (2d) 73.

It is set forth in defendant’s motion and supporting-affidavits and controverted in plaintiff’s counter-affidavits that the amount of the bid at the execution sale of real estate was raised in amount from $3,700 or $3,800 to $4,100 by plaintiff, as a bidder at a later hour of the day of the sale and that the sale should therefore be set aside as prejudicial to the interest of the defendant. From the clear weight of the evidence set forth in the supporting- affidavits supplementing the sheriff’s return, it appears that the actual bid at the sale was $4,100, which amount was paid to the sheriff by the plaintiff bidder and applied in payment of the judgment and costs, leaving a deficiency of $189.37 unpaid.

Defendant further contends that although the return shows that the tracts of real estate sold were first offered in separate and individual parcels and then in various combinations of parcels and received no bids and “then offered the real estate all together and received a bid from the State Bank of Jerseyville for $4,100, which was the highest and best bid offered and the property was declared sold,” the.return showing offer of sale first separately and then en masse should have given more specific information concerning said offer. The return of the sheriff supplemented by supporting affidavits was amply sufficient to support the contention of the plaintiff that the same was sold to the hig-hest bidder in compliance with statutory requirements, and no prejudicial irregularity appears in either the advertisement or sale of the premises or in the return of the sheriff therein.

Defendant further states the conclusion that the purchase price received was grossly inadequate, but no further offer was made or shown to be made by any other bidder nor do any facts appear in support of this conclusion of the pleader that would justify the set: ting aside of the sale on the ground alleged.

It is further contended by the defendant that at the time of the sale, the title to the real estate had changed hands and that therefore the sale was prejudicial to the rights of defendant. The lien of the judgment had remained in effect from the time of its entry through issuance and service of successive executions, and the sale of the premises in no way prejudiced the rights of the heirs or devisees of the deceased or of persons claiming under them. Only the defendant representative of the deceased seeks to attack either the validity of the original judgment, which is now res judicata in this proceeding, or the sale and certificate of purchase issued thereunder, which defendant sought to set aside in the present proceeding. The defendant was given credit for the amount of the purchase price and was not prejudiced as a judgment debtor nor was he in a position to complain. Stow v. Russell, 36 Ill. 18, 38.

It is further contended by the defendant that the sale was not made subject to any homestead rights of the deceased, but sets forth no facts showing the existence of any homestead interests. While plaintiff sets forth that the deceased judgment creditor was unmarried, had no family and did not reside on the premises, this question was not raised in the lower court in the motion to set aside the execution sale and certificate of purchase and cannot be raised for the first time in this court upon appeal. Without discussing the merits of the defendant’s contention, we are constrained to hold that by failure to raise this issue in the lower court, the defendant has waived and cannot now raise that question for the first time in this court. Morey v. Brown, 305 Ill. 284, 137 N. E. 210.

We have carefully examined the original and supplemental abstracts and referred to the original record herein, and. while we have not discussed in detail all the alleged errors assigned, we find that no substantial or reversible error appears in the record; that the lower court properly denied defendant’s motion to set aside the sheriff’s sale and certificate of purchase issued thereunder and that the countermotion of the plaintiff to strike the same was properly allowed by the trial court.

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

Judgment affirmed.


author: Mr. Justice Huffman

text:
    A. W. Francke et al., Appellants, v. William W. Eadie et al., Appellees.
    Gen. No. 9,415.
    Opinion filed August 7, 1939.
    Rehearing denied October 3, 1939.

      Walter E. Healy, of Elgin, and Harry L. Heer, of Galena, for appellants.
    Hack & Hack, of Galena, and Burrell & Burrell, of Freeport, for appellee; David M. Burrell, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.

This case was previously before this court at the October term, 1937. It is here on a second appeal. In order to properly understand the situation in the present appeal, it is necessary to understand the facts involved in the first appeal. This result can be had by a reference to the former opinion as easily as attempting to restate same here. Since the former case [294 Ill. App. 617 (Abst.)] was not a published opinion, we now incorporate same herein.

“This was a suit in chancery filed by appellants on December 28, 1925. General and special demurrers were filed to the bill. These demurrers were argued before the sitting judge, and taken under advisement by him on August 30, 1929. Subsequently, due to the retirement of that judge, there has been a succession to the jurisdiction. Nothing further transpired in the case until November 7, 1934, when the judge then presiding over the Circuit Court of Jo Daviess county entered a notation on his docket cause stricken under Rule 7. Nothing further transpired in the case until November 9, 1936, when appellants filed their motion to vacate the order striking the cause from the docket, and to reinstate same. The court denied the motion and this appeal follows:

“Rule 7 of the Circuit Court of said county is as follows:

“ ‘Hereafter, on the call of the docket, both law and chancery, all old cases remaining thereon, in which positive action has not been taken, and no attempt made for trial or final disposition of the same during three years next preceding such call, may be dismissed or stricken from the docket at the costs of the plaintiff or complainant, as the case may be. The fact that any case has been placed on the trial docket at any term will not alone be sufficient to defeat the operation of this rule. ’

“It is urged by appellants that the order made striking the case from the docket was not equivalent to a dismissal thereof for want of prosecution. In this respect they cite Frederick v. Connecticut River Sav. Bank, 106 Ill. 147. It is there held that an appeal will lie only from a final judgment or decree, that an order striking the suit from the docket is not of itself a final order or decree, and an appeal will not lie therefrom. It will be observed that Rule 7 contemplates the entry of a judgment at the time a cause is dismissed or stricken from the docket, by providing that such dismissal shall be, 'at the costs of the plaintiff or complainant, as the case may be. ’

'' Courts have inherent power, in the interest of justice, to dismiss suits for want of prosecution, but an order of dismissal to be final for purposes of appeal, must ordinarily be embodied in a judgment. Freeman on Judgments (5th ed. vol. 1, sec. 23).

“An appeal will not lie from an order of such a character, as there is no final judgment entered. Harvey v. Cochran, 103 Ill. App. 576; First-Trust Joint Stock Land Bank of Chicago v. Cutler, 286 Ill. App. 6. It has been said that under such circumstances, a court of review will of its own motion dismiss the appeal. Barber v. Wood, 318 Ill. 415.

“Various reasons are advanced by appellants in support of their contention that the court should have granted the motion to reinstate the case. Many reasons are also advanced by appellees as to why the court should not have granted such motion, among which is that of laches. The record discloses that a demurrer to the bill of complaint had been filed and argued, taken under advisement by the chancellor, and that no disposition thereof had ever been made prior to the order complained of herein. Delay due to the necessity for judicial deliberation cannot be charged against a litigant as laches and should not be permitted to work an injustice. The majority of this court is of the opinion that the motion to redocket the cause should have been granted.

1 ‘ This case is therefore reversed and remanded with directions for the trial court to grant the motion of appellants to redocket the cause.”

Benjamin Eadie had died. When the cause was redoclceted pursuant to mandate of this court, William W. Eadie, as executor of the estate of Benjamin Eadie, filed a plea in abatement, whereby he set up the death of the defendant to the original bill, with suggestion that by the death of such defendant the cause could proceed only against the surviving defendant, and should abate as to Benjamin Eadie, deceased. Appellants filed motion and amended motion to strike the plea in abatement. These motions were overruled by the court, the plea in abatement sustained, and the cause dismissed as to defendant William W. Eadie, as executor of the last will and testament of Benjamin Eadie, deceased. Appellants have appealed from the above order of the trial court sustaining the plea in abatement. The question presented by the parties in this appeal is, whether the proceedings’ below are to be governed by the Practice Act of 1907 or by the present Practice Act. It is conceded that unless par. 54 of the act (ch. 110, sec. 178, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.054]) applies, the plea was properly sustained. In this connection, rule 1 of the rules of practice and procedure of the Supreme Court, is pertinent.

On November 7,1934, when the trial court struck the cause from the docket, under rule 7, demurrers were then pending against the bill of complaint which had never been disposed of, but which had been argued before the court and taken under advisement. On November 9, 1936, these appellants filed their motion to vacate the order striking the cause from the docket, which had been entered two years previous. (In the meantime, Benjamin Eadie had died.) Following this and on November 16, 1936, they suggested of record the death of Benjamin Eadie and asked for the substitution of William W. Eadie as executor of the last will and testament of said deceased defendant and that summons might be issued against him as such executor. The court then entered its order that such summons might issue, without prejudice. This occurred and service was had on appellee executor on' November 18, 1936. He resisted the motion of appellants to vacate the order striking the cause from the docket. The trial court denied appellants’ motion to vacate the order striking the cause from the docket and the first appeal resulted.

It is contended by appellants that appellee executor by resisting the motion to vacate the order striking the cause from the docket, thereby entered his general appearance and that his plea in abatement filed upon reinstatement of the cause following the opinion of this court in the first appeal, came too late. Appellee executor answers this proposition by stating that after the cause had been stricken from the docket, there was nothing in the circiut court that remained of the case and that the only plea he has filed in this case is the plea in abatement. He further urges that a plea in abatement would have been improperly filed at a time when the case was stricken from the docket and that the first opportunity he had to file such a plea was upon its reinstatement.

The transcript of record was filed in this court on November 23, 1938. Neither the transcript nor the abstract contained a notice of appeal as required by the Civil Practice Act and by rules 33 and 34 of the mies of the Supreme Court. The filing of a notice of appeal is jurisdictional. Wishard v. School Directors of Dist. No. 11, 279 Ill. App. 333; Veach v. Hendricks, 278 Ill. App. 376. It appears that on January 23, 1939, appellants filed their motion in this court for leave to file additional transcript of record and abstracts. It appears by the additional record and abstracts that notice of appeal was filed on November 7, 1938. It does not appear that the judge of the trial court made any order extending the time allowed for filing the report of the proceedings, as provided by rule 36 (2a) of the Supreme Court, nor does any such order appear to have been entered by this court. Under the rule, the record on appeal shall be transmitted to the reviewing court not more than 60 days after notice of appeal has been filed. It is provided by section (2b) of the above rule, that additional time within which to file the record on appeal may be had upon proper motion, affidavit, etc., but that such motion shall be made before the expiration of the time fixed for filing the record on appeal. The motion in this instance was not filed within such time. It is further provided by this section of the rule that where the record shall have been filed in the reviewing court after the expiration of the time fixed by the rule but before application to dismiss is made by appellee, the reviewing court shall dismiss the appeal. The filing of the additional transcript of record and abstracts was permitted, and were filed on February 7,1939, but this can not serve to abrogate jurisdictional rules of practice and procedure on appeal.

The transcript of record as originally filed by appellants in this court within the 60-day period, conferred no jurisdiction on the court. It was not until a considerable time after the 60-dav period had elapsed, that appellants filed their motion for leave to file an additional transcript of record, which contained a copy of notice of appeal with proof of service, and copy of praecipe for record with proof of service. Appellee urges that his rights under the rule, after the expiration of the 60-day period, are equal to those of appellants thereunder, during the 60-day period. In other words, that he is as much entitled to the application of the rule after the expiration of 60 days as appellants are entitled to its application prior to the expiration of such period. In this, the court must agree. It is a matter of fixed jurisdictional limitation, and as binding on the court as on the litigants. Where no jurisdiction exists, the court cannot take jurisdiction. It therefore becomes the duty of the court to order the cause stricken, as there is no appeal pending in this court in this case.

Cause ordered stricken.


text:
    E. H. LeMenager, Appellee, v. Northwestern Steel and Wire Company, Appellant.
    Gen. No. 9,434.

      Opinion filed August 7, 1939.
    Rehearing denied October 3, 1939.
    Sheldon & Brown, of Sterling, for appellant.
    John W. Blodgett, of Morrison, and Bussian & De Bolt, of Chicago, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

This case was previously before this court and is reported in 296 Ill. App. 568, as LeMenager v. Northwestern Barb Wire Co., the company having changed its corporate name since the first appeal. The facts with reference to the nature of the action are there set out. Appellant’s appeal in that case was dismissed because no judgment had been entered by the trial court from which an appeal might be prosecuted. The case had been tried by jury, which had returned a verdict in favor of the plaintiff, LeMenager. Appellant, following the return of the verdict, had filed its motion for judgment non obstante veredicto, which motion the court denied, and appellant prosecuted the above appeal from the ruling of the court denying its motion for judgment notwithstanding the verdict.

By the supplemental record now before us, it appears that the mandate of this court dismissing the former appeal, was filed in the lower court on November 29, 1938. Upon filing of the mandate as above, the appellant on the following day, November 30, 1938, after service of notice on opposite party for hearing and entry of judgment on the verdict, did secure on said date the entry of a judgment upon the verdict as returned by the jury. Upon entry of this judgment, appellant prosecutes this second appeal. The case now comes to this court upon a judgment rendered upon the verdict of the jury and appellant’s motion for judgment notwithstanding the verdict, which the court denied.

A trial court in passing upon a motion for judgment notwithstanding the verdict is governed by the same rules as in passing upon a motion for a directed verdict, and has no power to weigh and determine contradicted questions of fact and the credibility of witnesses. Illinois Tuberculosis Ass’n v. Springfield Marine Bank, 282 Ill. App. 14, 22-26; McNeill v. Harrison & Sons, Inc., 286 Ill. App. 120, 128. “A motion to direct a verdict for the defendant preserves for review only a question of law whether from the evidence in favor of the plaintiff, standing alone and when considered to be true, together with the inferences which may legitimately be drawn therefrom, the jury might reasonably have found for the plaintiff.” Ziraldo v. Lynch Co., 365 Ill. 197, 199. Where there is any evidence in the record, which with reasonable inferences and intendments, fairly tends to prove the plaintiff’s case, when standing alone, motion for a directed verdict should be denied. Libby, McNeill & Libby v. Cook, 222 Ill. 206; Capelle v. Chicago & N. W. Ry. Co., 280 Ill. App. 471, 479. The record in this case consists of over 900 pages and to attempt a review of the controverted questions of fact, would extend this opinion beyond reasonable lengths. However, it was fully reviewed upon the former appeal and has again been reviewed upon this appeal, together with the supplemental proceedings. Under the rule as above indicated, upon a motion for judgment non obstante veredicto, the evidence of plaintiff, with all reasonable inferences arising therefrom, is to be taken most strongly in his favor. Under the above circumstances, neither the trial court nor this court can weigh the evidence of the respective parties in order to determine where, in its opinion, the preponderance lies.

Appellee’s evidence is to the effect that pursuant to contract with appellant to negotiate a loan, he rendered services which were the procuring cause for the money upon which he bases his claim for commission. Appellant admits the contract, but claims same was terminated prior to the securing of the loan; that it secured the loan, and not appellee. These were matters of dispute between the parties and the evidence thereon cannot be weighed in considering a motion for judgment notwithstanding the verdict.

Appellant filed no motion for a new trial. Therefore, the question of the sufficiency of the evidence to support the verdict is not open to review. Huber v. Van Schaack-Mutual, Inc., 368 Ill. 142, 144; Quillman v. Cockram, 253 Ill. App. 413. In the absence of a motion for a new trial, the court has no power to weigh the evidence. And upon a motion for judgment notwithstanding the verdict, plaintiff’s evidence must be considered with respect to the rule that unless same, when given all the legitimate inferences to be drawn therefrom, is wholly insufficient to sustain the verdict, such motion should not be granted.

The judgment of the trial court is therefore affirmed.

Judgment affirmed.


text:
    Herbert M. W. Quist, Appellant, v. Carl W. Dorn and Harvey R. Jewett, Appellees.
    Gen. No. 9,431.

      Opinion filed August 18, 1939.
    Rehearing denied October 3, 1939.
    William D. Knight, of Rockford, for appellant.
    Morris J. Hinchcliff, of Rockford, for appellee Carl W. Dorn.

      Karl C. Williams, of Rockford, for appellee Harvey R. Jewett; J. Phillip Dunn, of Rockford, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

Herbert M. W. Quist, plaintiff, in the suit below and now appellant, filed a suit against Carl W. Dorn, the defendant, now appellee, in the circuit court of Winnebago county. The complaint alleged that Carl W. Dorn was a real estate agent in the city of Rockford, Illinois, and that C. E. Adams was a salesman employed by the defendant; that Lawrence Quist, the brother of plaintiff, through the efforts of Carl W. Dorn and C. E. Adams, entered into a contract with Paul Dondulis, in which Quist was to convey a certain house and lot in the city of Rockford, Illinois, subject to a $2,700 mortgage, and payment of $100 to Paul Dondulis, for a certain farm owned by him, said farm to be conveyed subject to a mortgage of $2,800; that it was orally agreed between Dorn, Adams and Lawrence Quist that if the trade could not be made without doing so, that Quist would cause to be conveyed a lot owned individually by Herbert M. W. Quist, but the lot was not to be conveyed unless it was necessary to complete the deal. The plaintiff further alleges that C. E. Adams approached the plaintiff and told him that the deal was ready to be closed, but that the owner of the farm, Paul Dondulis, was in jail and would soon have to be taken to the penitentiary at Leavenworth, so that the deal would have to be closed at once and to consummate the deal, his own lot would have to be put in the deal and deeded to Dondulis; that the plaintiff executed a deed in blank without the description of the property, or a grantee inserted in the deed and the same was not acknowledged by him.

The bill further avers that after the deeds were executed, that he learned that his lot was never conveyed to Paul Dondulis, but that the defendant, unbeknown to the plaintiff, had inserted his sister’s name, Dorothy Dorn, as grantee, in the deed and later Dorothy Dorn had conveyed the lot to the defendant, Carl W. Dorn; that the same was done without his knowledge or authority ; that said deed is void and is a fraud upon the plaintiff; that he has repeatedly demanded that the defendant reconvey to him the said lot, or that the defendant pay to the plaintiff the reasonable value of the property at the time of the filling in the name of the grantee, in the deed as aforesaid. The value of the property is alleged to be $2,500. In the prayer for relief, the plaintiff asks that the defendant be directed to reconvey to the plaintiff, the title to the premises within a certain day fixed by the court, and if said defendant does not so reconvey as directed, that the court enter a judgment in favor of the plaintiff and against the defendant for the value of said premises at the time the said deed was executed, namely April 26,1933, with interest thereon at 5 per cent.

The defendant filed his answer in which he admits making the contract and the conveyance of the property from Quist to Dondulis and from Dondulis to Quist. He also admits taking the deed in blank and the filling in of the description of the lot and the name of the grantee. He claims this was done with the full knowledge and consent of the plaintiff. He admits the deed was never delivered to Dondulis, but claims it was taken in the name of his sister, in payment of the commission which was due him from Dondulis. The defendant also interposed and plead the defense of laches and says that the plaintiff, by his negligence and inaction for a period of five years (lacking one day), without taking any action or asserting his rights, should be barred from maintaining his suit.

The property has been conveyed several times and finally Mr. Harvey E. Jewett became the owner and improved the same with a dwelling house, at an approximate cost of eight to nine thousand dollars. He was allowed to intervene in the suit and set forth his rights to the property. He claimed to be an innocent purchaser for value; that the record shows a clear title in his grantor and that the plaintiff knew that he was improving the lot and is therefore guilty of laches and the suit of the plaintiff should be dismissed.

The case was tried before the court without a jury who found the issues for the defendants and dismissed the bill for want of equity, assessed the costs of the suit against the plaintiff and entered a decree accordingly. It is from this decree that the appeal is prosecuted.

There is no dispute that Harvey B. Jewett, the intervenor in the court below, purchased the property in good faith and Quist, the plaintiff, knew that Jewett was improving the property by building a new home on the same. As between Herbert M. W. Quist and Harvey Jewett, we think the court properly found that Quist was guilty of laches and it would be inequitable for him to sit by and see Jewett make valuable improvements and say nothing* about him being* the owner of the lot, especially so when the record shows a clear title in Jewett’s grantor. The judgment of the trial court in favor of the intervenor, Jewett, is affirmed.

The appellee, Dorn, also insists that the appellant is guilty of laches and therefore the suit should be barred, as to him. A different rule relative to laches prevails between Mr. Quist and Mr. Dorn. The evidence shows that Mr. Quist and also his attorney, Mr. Knight, approached Mr. Dorn several times in regard to a settlement in this matter. Laches has been described as such neglect or omission to assert a right as, taken into conjunction with lapse of time more or less great, and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity. In an equitable proceeding, it is only when by the delay or neglect to assert a right that the adverse party is lulled into doing that which he would not have done, or into omitting to do that which he would have done in refereuce to the property, had the right been properly asserted, that the defense of laches can he considered. Simons v. Morris, 333 Ill. 183. Soon after this deed was executed, Dorn sold the property, so that he has not been prejudiced in any way by the failure of the plaintiff to prosecute his suit at an earlier date. Under the circumstances in this case, Quist was not guilty of laches.

The record in this case shows that the Quists were to exchange the house and lot for the farm in question, and if it were necessary, the lot of the plaintiff was to be included. They were also to pay Dondulis $100 and pay $100 commission to Dorn and if Dondulis couldn’t pay his share of the commission, then Quist was to pay $150. In order to close the transaction before Dondulis went to the penitentiary, the appellant, Quist, signed a deed without any description of the property, or grantee named therein. The appellant argues at length that this deed is void. We think it is not necessary to decide this point for we have held that Quist is barred from maintaining a suit against Jewett for the possession of the lot, and the title for same cannot he questioned. The only action which Quist can maintain is against Dorn.

Quist did not intend to deed the lot to anyone except Dondulis. The evidence shows that the Dondulises did not know anything about the lot being a part of the transaction, until after the ’ deal was consummated. Dorn was acting as a real estate broker for and on behalf of Quist, and a fiduciary relation existed between them. A fiduciary relationship of principal and agent is well expressed in the case of Lerk v. McCabe, 349 Ill. 348. “The relation of principal and agent is one of trust and confidence, and where such confidence is reposed and such relation exists it must be faithfully acted upon and preserved from any intermixture of imposition. . . . (Perry v. Engel, 296 Ill. 549.) An agent acting for the purchaser of land, whether bv appointment or as a volunteer, must see that he meets fairly and squarely the responsibility of his position and does not take any advantage, either for his own gain or to the injury of the person whom he represents. (Salsbury v. Ware, 183 Ill. 505.) The rule is well established in equity that the relation existing between principal and agent for the purchase or sale of property is a fiduciary one, and the agent in the exercise of good faith is bound to keep his principal informed on all matters that may come to his knowledge pertaining to the subject matter of the agency. (Reiger v. Brandt, 329 Ill. 21.) An agent must not put himself, during the continuance of his agency, in a position adverse to that of his principal. To the latter belongs the exercise of all the skill, ability and industry of the agent. If a party employs an agent to make a purchase of land he is entitled to all the skill, ability and industry of such agent to make the purchase on the best terms that can be had. (Cottom v. Holliday, 59 Ill. 176.) An agent cannot deal for his own advantage with the things purchased for his principal, or become a seller or buyer of them, because of his confidential relation and his duty to disclose to his principal every fact, circumstance or advantage in relation to the purchase which may come to his knowledge. (McDonald v. Fithian, I Gilm. 269; Strong v. Lord, 107 Ill. 25.) . . . It is a settled rule in this State that transactions of parties between whom a fiduciary relation exists are prima fade voidable on grounds of public policy. They will be closely scrutinized by a court of equity, and relief will be granted unless the party claiming* the benefit of the contract shows by clear and convincing* proof that he has acted in perfect good faith and has not betrayed the confidence reposed in him. (Thomas v. Whitney, 186 Ill. 225; Casey v. Casey, 14 id. 112.) It is the confidential fiduciary relation existing between the parties which gives rise to such suspicion. If a reasonable suspicion exists that the confidence has been abused the contract will be set aside. (Dowie v. Driscoll, 203 Ill. 480; Beach v. Wilton, 244 id. 413.) And this though the contract is such that had no fiduciary relation existed the contract would not be disturbed. ’ ’

Where a fiduciary relationship exists between a grantor and grantee in a deed, the burden is on the grantee to prove that the transaction was entirely fair in every particular. Courts of equity will scrutinize with jealous vigilance, the transactions between parties occupying fiduciary relations toward each other, and the burden of proof is on the beneficiary in such case, to establish not only that the transaction was fair, but that it did not proceed from undue influence, for the abuse of confidence, or influence arising out of a fiduciary relationship will not be permitted to prevail, even though the transaction could not be impeached, if no confidential relation existed. (McCord v. Roberts, 334 Ill. 233; Mors v. Peterson, 261 Ill. 532.)

We think the evidence in this case fully sustains the contention of the appellant that the contract never contemplated the deed to the lot in question, being used for any purpose, but to convey the lot to Dondulis, according to the verbal contract between his brother and Adams, the employee, of the appellee, Dorn, and that the court erred in not finding the value of the lot at the time of the conveyance, and rendering judgment in favor of the plaintiff for that amount.

The judgment of the trial court is hereby reversed and the cause remanded to the circuit court of Winnebago county, with directions to proceed in accordance with this opinion.

Reversed and remanded with directions.


author: Mr. Presiding Justice Dove

text:
    Arline Perry McDougal and Edith Perry Woodworth, Appellees, v. A. J. Perry, Appellant.
    Gen. No. 9,339.
    Opinion filed September 19, 1939.
    Gale & West and George W. Huht, all of Peoria, for appellant.
    Lewis L. Yah Dyke, of Peoria, for appellee.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

On September 13, 1937 Alice A. Nash instituted this proceeding in forcible detainer in the county court of Peoria county to recover possession of four lots in the city of Chillicothe. An answer, which was subsequently amended, and a counterclaim were filed. On December 30, 1937 the plaintiff filed a motion to strike the amended answer from the files and on January 11, 1938 she filed a motion for judgment. On January 29, 1938 Arline Perry McDougal and Edith Perry Wood-worth filed their petition, supported by affidavits, for an order substituting them as plaintiffs. This petition averred that on November 27, 1937 Alice Nash conveyed the premises involved herein to petitioners and thereafter, on January 18, 1938 died. A hearing upon this application was had, resulting in an order substituting Arline Perry McDougal and Edith Perry Wood-worth as plaintiffs and thereafter the court sustained their motion for judgment and rendered, judgment in favor of the substituted plaintiffs for possession of the premises and against the defendant and in favor of the substituted plaintiffs for costs.

The sole contention made by counsel for appellant is that the death of the sole plaintiff on January 18, 1938 abated this suit and that appellees, even though they were heirs at law of Alice A. Nash, deceased, had no such interest in the premises which would give them the right to suggest the death of Alice A. Nash and that they, as grantees of the former plaintiff, could not be substituted as parties plaintiff because of the time of substitution, Alice A. Nash had died, the suit had abated and there was therefore no party plaintiff. In support of this contention counsel call our attention to section 10 of the Abatement Act [Ill. Rev. Stat. 1937, ch. 1, §10; Jones Ill. Stats. Ann. 107.010], section 54 of the Practice Act [Ill. Rev. Stat. 1937, ch. 110, § 178; Jones Ill. Stats. Ann. 104.054] and cite Zukowski v. Armour, 107 Ill. App. 663. What this case holds is that under the Practice Act as it then existed, a suit could not be discontinued as to a plaintiff or a defendant unless there was another plaintiff or defendant from whom the party discontinued may be severed, that unless that was true, the common law rule prevailed, which was that.the court was without power to add or strike out parties to a suit.

Section 10 of the Abatement Act [Ill. Rev. Stat. 1937, ch. 1, § 10; Jones Ill. Stats. Ann. 107.010] provides: “When there is but one plaintiff, petitioner or complainant in an action, proceeding or complaint, in law or equity, and he shall die before final judgment or decree, such action, proceeding or complaint shall not, on that account abate, if the cause of action survive to the heir, devisee, executor or administrator of such decedent, but any of such to whom the cause of action shall survive, may, by suggesting such death upon the record, be substituted as plaintiff, petitioner or complainant and prosecute the same as in other cases.”

Section 54 of the Civil Practice Act [Ill. Rev. Stat. 1937, ch. 110, §178; Jones Ill. Stats. Ann. 104.054] is as follows: “ (Abatement — Change of interest or. liability.) Where by reason of marriage, death, bankruptcy, assignment or any other event occurring after the commencement of a cause or proceeding, either before or after judgment and in the trial or reviewing court, causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after such commencement, it becomes necessary or desirable that any person not already a party should be before the court, or that any person already a party should be made party in another capacity, the action shall not abate, but an order may be made that the husband or wife, heir, personal representative, trustee, assignee, or other successor in interest, if any, be made a party in substitution for or in addition to any other party, and that the cause or proceeding be carried on with the continuing parties and such new parties, with .or without a change in the title of the cause, on motion of anyone interested, supported by affidavits, and such reasonable notice of the order to any new parties to be brought in as the court or tribunal may designate by such order.”

Counsel for appellant argue that section 54 of the Practice Act did not amend section 10 of the Abatement Act; that the word “death” used in section 54 of the Practice Act does not refer to the sole plaintiff mentioned in section 10 of the Abatement Act and that the use of the word “assignment” in section 54 of the Practice Act was not intended to include assignees of a deceased sole plaintiff; that therefore the words “assignee or other successor in interest” as used in section 54 of the Practice Act, only grants to the court the right to bring in the assignee of the plaintiff as a party, prior to the death of the sole plaintiff. “This conclusion,” say counsel, “is made necessary because the assignee, in Section 54 of the Practice Act, of the sole plaintiff is not a person to whom the action survives under Section 10 of the Abatement Act.” We are unable to follow counsel’s reasoning. At common law the death of a sole plaintiff abated the action. 1 C. J. 153, sec. 248; Mitchell v. King, 187 Ill. 452. The transfer pendente lite of the interest of the plaintiff in the subject matter of the action, also, at common law abated the action. 1 C. J. 142, sec. 220; 1 Am. Jur. 48, sec. 45; 1 C. J. S. 148, sec. 106(a). Section 10 of the Abatement Act does apply to cases where there is a sole plaintiff and he or she dies, but section 10 of the Abatement Act and section 54 of the Practice Act must be construed together. In the instant case the motion to substitute discloses that Arline Perry McDougal and Edith Perry Woodworth are the owners of the property involved in this proceeding and that they had acquired title by virtue of a deed executed by the former plaintiff on November 27, 1937. Section 11 of the Forcible Entry and Detainer Act (ch. 57, Ill. Rev. Stat. 1937, p. 1701 [Jones Ill. Stats. Ann. 109.271]) provides that the provisions of the Civil Practice Act should apply to all proceedings under that act in courts of record except as otherwise provided in that act and section 54 of the Civil Practice Act specifically authorized anyone interested to make the motion for substitution and provides that an action, such as this, under the circumstances here shown to exist, shall not abate but that the trial court, under its provisions, shall substitute as parties plaintiff, those to whom the sole plaintiff had transferred her interest. The allegation in the motion that the original plaintiff, Alice A. Nash, died on January 18, 1938 is not material, inasmuch as appellees did not seek to be substituted as plaintiffs because they were heirs at law of Alice A. Nash, but because they succeeded to her interest in the premises prior to her death by grant from her. “Where the plaintiff assigns his interest in the subject matter of an action during its pendency and then dies, the action, if the cause thereof survives, may be revived in the name of the assignee.” 1 C. J. 222, sec. 446. “Where plaintiff assigned his interest in the subject matter of an action during its pendency and then died, the general rule is that the action may and should be revived in the name of the assignee.” 1 C. J. S. 217, sec. 162(b).

The judgment of the trial court will therefore be affirmed.

Judgment affirmed.


text:
    Amanda C. Anglemire, Appellee, v. Policemen’s Benevolent Association of Chicago, Appellee. Policemen’s Benevolent Association of Chicago, Appellee, v. Amanda C. Anglemire et al. Mrs. Bernice Schmelzle et al., Appellants.
    Gen. No. 9,445.
    Opinion filed September 22, 1939.

      England, O’Toole & Kays, of Chicago, and Savage & Holbrook, of Joliet, for appellants.
    Irving Shutts, of Joliet, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

Clinton H. Anglemire had for many years been a certificate holder in the Policemen’s Benevolent Association of Chicago, a fraternal benefit society. On November 2, 1935, he married Amanda C. Anglemire. Following this marriage and on December 13, 1935, pursuant to the by-laws of the association with regard to change of beneficiary, he had a new certificate issued making her beneficiary therein. On November 20,1936, pursuant to application to the association by the insured in accordance with the constitution and by-laws' thereof, he caused cancellation of the certificate of December 13,1935, and procured a new certificate making appellants herein the beneficiaries. He died on July 2, 1938. Following his death, Amanda C. Anglemire, beneficiary in the former certificate, and appellants as beneficiaries in the latter certificate, each made claim for the benefits.

Suit was first instituted by Amanda O. Anglemire in which she claimed that the certificate issued on December 13, 1935, wherein she was made beneficiary, was in full force and effect at the time of the insured’s death. She based her claim upon a parol promise of the insured made to her prior to the marriage, that if she would marry him, he would surrender the certificate which he then held and procure a new one naming her as beneficiary, and that she relying on such promise, married the insured. She set up the issuance of the certificate of December 13,1935, wherein she was made beneficiary, alleged such certificate to be in her possession, and that she was ready and willing to surrender it upon payment of the benefits therein provided. She alleged that she fulfilled her marriage obligations to the insured, and that he was estopped from changing the beneficiary from her to any other person.

The association answered this complaint alleging that the insured prior to his death and on November 20, 1936, secured a new certificate pursuant to the by-laws of the association, upon his affidavit that the certificate then existing was in the possession of his wife and could not be produced by him; and that pursuant to the constitution and by-laws of the association, the certificate of November 20, 1936, was issued in place of that previously issued under date of December 13, 1935. The certificate of November 20,1936, named as beneficiaries the children and a sister of the insured.

In view of the fact that the association had two sets of claimants for the benefits provided in the certificate, it filed its complaint in the nature of a bill of inter-pleader making all the claimants defendants. The cause was then transferred to the chancery docket. The defendants made answer and' hearing was had upon their respective rights to the benefits. Appellee based her right thereto upon the parol promise of the insured that if she would marry him he would make her beneficiary, and claimed that in consideration of such promise, she married him; that following the marriage he surrendered the old certificate and caused to issue a new one under date of December 13, 1935, naming her as beneficiary; and that he was estopped from changing the beneficiary as was done by the certificate issued on November 20, 1936. Appellants set up that her claim was barred by the statute of frauds, and that her alleged agreement made with the insured was void.

The trial court held in favor of appellee wife, and decreed that she was entitled to the benefits accruing under the certificate. The court found by the decree that prior to the marriage of the insured with appellee, he held a benefit certificate in the association; that prior to such marriage he promised and agreed with her that if she would marry him he would surrender that certificate and procure a new one in which he would name her as beneficiary; that she, relying on such promise, married the insured; that after the marriage he did procure a new certificate naming her as beneficiary, and of which certificate she is in possession; that the above agreement between appellee and the insured upon the subsequent marriage and change of beneficiary became an executed contract; that he was estopped from later changing same; that his action in procuring the certificate of November 20, 1936, was void, and the beneficiaries named therein not entitled to any of the benefits accruing under the certificate of the insured in said association. From the above decree, the beneficiaries named in the certificate of No-, vember 20,1936, have prosecuted this appeal.

It appears under article IV of the constitution and by-laws of the association that, “In case a member is unable for any reason to surrender his certificate for change of beneficiary, he may file with the Recording Secretary of the Association, his affidavit, setting forth the reasons why he is unable to surrender his certificate, for cancellation and for the issuing of a new certificate, and in and by such affidavit, he may designate a new beneficiary of his choice and such change of beneficiary by affidavit shall be binding upon the member, his beneficiary and the Association.” It appears by the testimony of Mr. Christensen, a member of the Chicago police force and a trustee of the association, that it was his duty to collect dues from the members and to take care of the matter of change of beneficiaries. He states that he knew the insured and that he took care of the change of beneficiary when the same was changed to appellee in December, 1935, and also took care of the last change in beneficiary from her to appellants. The insured came in person to see this witness regarding the last change in beneficiary. He stated that he was unable to produce the certificate then, outstanding because Ms wife had it, whereupon he was permitted to fill out an affidavit for the issuance of a new certificate pursuant to the above provision of the constitution and by-laws. The affidavit made by the insured was upon the regular form furnished and used by the association. Pursuant to the execution of the affidavit, and in accordance with the constitution and by-laws of the association, the policy of November 20, 1936, making appellants beneficiaries, was issued and delivered to the insured, and the certificate issued on December 13, 1935, canceled.

It appears that the marriage was not a happy one. The insured was of advanced years and considerably older than appellee. Their difficulties at times assumed a violent nature. In the early part of November, 1936, appellee took possession of certain securities of the insured, including the policy in which she was beneficiary. This precipitated a personal encounter between them, wherein the insured was not the winner. Appellee retained the policy. Soon thereafter the insured made the change of beneficiary by the cancellation of the certificate of December 13,1935, and procuring issuance of that of November 20,1936.

The English statute of frauds provides that no action should be brought to charge any person on any agreement made in consideration of marriage, unless the agreement or some memorandum or note thereof should be in writing and signed by the party to be charged therewith or some person thereunto by him lawfully authorized. In this country, this provision has been generally adopted by the various jurisdictions. And contrary to the rule which prevails in cases of other contracts, the subsequent marriage of the parties is not considered to constitute such a part performance as to take the contract out of the operation of that provision of the statute of frauds directed against contracts in consideration of marriage. The rule in such case is based upon the express language of the statute. Promise of marriage, followed by the marriage, is the exact situation contemplated by the statute. The marriage adds nothing to the circumstances set out by the statutory provision which makes a writing essential. The promise in itself being a nullity, produces no obligation, and any subsequent act of the husband following the marriage must be considered as purely voluntary. Thus the agreement being void under the statute of frauds, the act of the husband after marriage even though in view of such agreement, must be deemed to be without legal consideration to support it, and as above said, stands therefore upon the same basis as if such act were purely voluntary. Hence the insured had the right to change the beneficiary in the policy as provided by the constitution and by-laws of the association.

Under the English statute of frauds, and similar enactments in the various jurisdictions in this country, promises in consideration of marriage, other than the mutual promise to marry, are required to be in writing; and an oral promise to settle property upon an intended spouse is void. It is well-settled in this State that a verbal executory promise or agreement, made in consideration of marriage, is embraced within the provision of the statute of frauds, requiring that actions, “to charge any person upon any agreement made upon consideration of marriage, . . . shall be in writing, and signed by the party to be charged therewith.” McAnnulty v. McAnnulty, 120 Ill. 26; Richardson v. Richardson, 148 Ill. 563; Keady v. White, 168 Ill. 76; Austin v. Kuehn, 211 Ill. 113; Garlock v. Campbell, 263 Ill. App. 287.

Appellee bases her right to the benefits of the certificate upon an oral promise of the insured, made in consideration of marriage. Under sec. 1 of ch. 59 of the statutes (commonly called the statute of frauds) such an agreement was void, and the subsequent marriage did not take the same out of the operation of the statute.

The decree is reversed and the cause remanded to the trial court with directions to enter judgment in favor of appellants.

Reversed and remanded with directions.


author: Mr. Presiding Justice Matchett

text:
    Interstate Folding Box Company, Appellant, v. LaMode Garment Manufacturing Company, Appellee.
    Gen. No. 40,492.

      Opinion filed October 3, 1939.
    Mater, Meter, Austrian & Platt, of Chicago, for appellant; Miles Gf. Seelet and Edwin A. Bothsohild, both of Chicago, of counsel.
    Edward Graff, of Chicago, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Plaintiff filed an amended complaint which on motion of defendant was stricken, with judgment for costs, from which plaintiff appeals. The question for decision is whether the complaint states a cause of action. The complaint shows plaintiff is an Ohio corporation manufacturing paper boxes, that defendant manufacturing company is an Illinois corporation doing business in Chicago. The organization of defendant was completed January 13, 1938, when it took over the assets of LaMode Garment Company, another Illinois corporation, to which it is successor.

The LaMode Garment Company on August 14, 1937, made two contracts with plaintiff, copies of which are attached to the original complaint as exhibits “A” and “B,” by which plaintiff agreed to manufacture for and sell to the garment company 25,000 paper boxes at $24.70 per thousand, these boxes to be manufactured at one time and to be shipped as instructed, but all to be taken within six months, on terms of payment stated in the contract, plaintiff reserving the right to overrun or underrun 10 to 20 per cent of the specified quantity, invoices for all unshipped balances to be rendered February 16, 1938. Plaintiff manufactured 29,875 of these boxes. The complaint also avers that September 20, 1937, by contract in writing (copy of which is attached as exhibit “C”) plaintiff agreed to manufacture and sell to the garment company and the garment company to buy from the plaintiff 25,000 folding boxes at $49.20 per thousand, to be manufactured at once, 5,000 to be shipped as soon as possible, balance as instructed, and all to be taken within three months from date of order, with the right of plaintiff to overrun or underrun from 10 to 20 per cent as to the specified quantity. Plaintiff manufactured 26,900 of these boxes. Plaintiff at the request of the garment company made shipments on both orders on dates set out in the complaint, and the garment company failed to pay as agreed. The last shipment was made November 20,1937.

January 3, 1938, plaintiff received notice in writing that the garment company had entered into a contract with one Kurtzon for the sale of all its assets for “a sum equal to 50 per cent of the amount owing to creditors of the vendor for merchandise heretofore delivered to it, ’ ’ and that a corporation would be formed by the vendee to take possession of the assets of the vendor garment company not sooner than 5 days and not later than 20 days after the date of the notice.

January 6, 1938, plaintiff received a notice from a group of creditors of the garment company informing it that the garment company through Gershenow, its president, had advised creditors of its inability to meet current expenses, and that the proposed sale of its assets to a new corporation to be formed by Kurtzon was a “plan of reorganization” to which these creditors had agreed and which they recommended to other creditors.

The amended complaint says this plan of reorganization for the sale of the garment company to Kurtzon, or a new corporation to be organized, was unfair and fraudulent as to plaintiff and would result in hindering and delaying plaintiff for the reason that creditors of the garment company who had delivered all goods sold by them to it would receive one-half of their full claim, whereas the plaintiff (having delivered only a part of the merchandise sold by it to the company) would receive no compensation whatever with respect to the undelivered portion of merchandise; that the garment company was to be stripped of all its assets so that the balance of plaintiff’s claim would be totally uncollectible upon completion of the new organization. Plaintiff protested to the garment company on this ground, whereupon Gershenow advised plaintiff that the new corporation would be substantially the same as the old though under a slightly different name, and that he (Gershenow) was to be one of the principals in the reorganized company, had authority to act for it, and proposed that if plaintiff would agree to accept from the reorganized company in settlement of its claim for the purchase price of the boxes delivered 50 per cent of the purchase price, and release the garment company from liability under the contracts, the new company would take over and assume these contracts and would accept delivery of all boxes remaining undelivered and pay for same at the contract price. Eelying on these representations plaintiff agreed, refrained from taking any action to prevent the reorganization or sale of assets or to enforce the obligations of the garment company under the contracts.

January 13, 1938, the organization of the LaMode Garment Manufacturing Company had been completed and the assets of the old company conveyed to it. January 17, 1938, defendant, with full knowledge of the agreement between plaintiff and Gershenow, instructed plaintiff to ship to it 2,000 boxes manufactured under the contract of August 14, 1937, and 1,000 of the boxes manufactured under the contract of September 20, 1937. These boxes were shipped to defendant by plaintiff, were accepted and paid for by defendant at the price specified in the contract, thereby, as the complaint avers, ratifying and confirming the authority of Gershenow to agree in its behalf, and thereby taking over and assuming the contract, enjoying the benefits, and agreeing to a novation whereby the old garment company was released and its obligations assumed by defendant. The complaint goes on to state that later defendant repudiated the agreement made in its behalf and refused to carry out the contracts as agreed.

The record does not disclose on what theory the trial judge came to the conclusion that the complaint failed to state a cause of action. It is the theory of plaintiff that under the facts as alleged defendant, as a successor corporation, must be held to have assumed, ratified and adopted the contracts of its predecessor for a valuable consideration, and is therefore bound by the terms of these contracts. Defendant says the complaint does not allege that Gershenow was authorized by defendant to make an agreement for the new corporation which as yet had not been organized. Gershenow, of course, did not have authority to act for an entity not yet in existence. The complaint however says Gershenow said he was to be one of the principals in the reorganized corporation, and that he had authority to act for it. The proposed agreement was presumably to go into effect only on completion of the organization of the new company. The metaphysical difficulty disappears when this fact is recognized. Granting that Gershenow did not have authority at the time his offer was made, the new corporation as soon as it came into existence could accept the offer and by so doing ratify and adopt the action of the unauthorized agent. According to the complaint the offer was that if plaintiff would accept from the new company 50 per cent of the purchase price of the boxes delivered under the contracts with the old company, and release the old company from liability, the new company would take over and assume the obligations of the contracts with the old company, accept delivery of the undelivered boxes and pay for them at the contract price. Plaintiff agreed to this, did not oppose the sale of assets to the new company nor oppose the reorganization, which he had a legal right to do. This was sufficient consideration.

After defendant’s organization was completed on January 13, 1938, as LaMode Garment Manufacturing Company (the word “manufacturing” was the only additional word in the name of the new corporation) the assets of the old company were conveyed to it, and four days thereafter, with full knowledge of the agreement as made for it by plaintiff and Gershenow, defendant proceeded to carry out this agreement by ordering 2,000 of the boxes manufactured under the contract of August 14, 1937, and 1,000 boxes manufactured under the contract of September 20,1937. These boxes were shipped to defendant who paid therefor the price named in the contracts between plaintiff and the predecessor garment company. A week later defendant repudiated the agreement with the new company. In other words, after enjoying all the benefits it disclaimed all obligation.

The pleading avers, as a conclusion of law from the facts stated, that these facts constituted a novation, or at least that defendant under the circumstances is now estopped to deny its liability on the contracts with the old company. Defendant says the mere fact defendant ordered and paid for 3,000 boxes manufactured under the contracts would not constitute an adoption of these contracts, ratification thereof, or a novation. This may be true, but this fact with the other facts alleged, such as the offer, the acceptance, receipt of the consideration with knowledge, amounted to adoption, ratification and, we think, created an estoppel to deny a novation. Defendant was a de facto corporation before it was a de pire corporation. It would serve no useful purpose to discuss the many cases cited in the brief of defendant, most of which are not at all applicable. The Restatement, ‘‘Contracts,’’ says: “A novation is a contract that (a) discharges immediately the previous contractual duty or a duty to make compensation, and (b) creates a new contractual duty, and (c) includes as a party one who neither owed the previous duty nor was entitled to its performance.” (Sec Restatement, Contracts, ch. 13, sec. 424, p. 798.) Defendant says the statement of Gershenow could not bind defendant. The defendant could not be immediately bound by a promise of Gershenow made in its behalf when it was not in fact in existence; but when, as the complaint alleges, defendant with full knowledge took possession of all the assets of the garment company, thus depriving plaintiff of the means by which the garment company’s obligation to plaintiff could be enforced, and when, as under circumstances alleged in the complaint, it ratified Gershenow’s agreement made in its behalf by ordering under the contracts and paying the prices named in the contracts it would seem, irrespective of whether there was a technical novation at the time of the Gershenow promise, that defendant is now estopped to deny the novation. Defendant says the complaint fails to state that defendant acted with knowledge. Defendant is mistaken. The complaint does aver knowledge.

It would be an unprofitable task to discuss all the cases cited by the parties. The principles are elementary and fundamental and are sustained by many well considered cases. Wiggins Ferry Co. v. Ohio & M. Ry. Co., 142 U. S. 396, 35 L. Ed. 1055, 12 Sup. Ct. 188; E. E. Taenzer & Co. v. Chicago, R. I. & P. R. Co., 170 Fed. 240; Chicago S Alton R. R. Co. v. Chicago, V. & W. Coal Co., 79 Ill. 121; Zanes v. Lehigh Valley Transit Co., 41 F. (2d) 552, affirmed 46 F. (2d) 848, cert. denied 284 U. S. 619, 76 L. Ed. 528, 52 Sup. Ct. 8; Swords Co. v. Hogland, 278 Ill. App. 611; In re Ideal Steel Wheel Co., 25 F. (2d) 651; 1 Fletcher, Corporations, Perm. Ed. 1931, secs. 207, 208; White v. Stevens, 326 Ill. 528; Brownholtz v. Providers Life Assur. Co., 329 Ill. 42; Norris v. Hess Bright Co., 185 Ill. App. 262; Saltonstall v. Mead, 191 Ill. App. 173; Pitts v. D. M. Steele Mercantile Co., 75 Mo. App. 221.

For the reasons stated the judgment is reversed and the cause remanded with directions to enter a rule on defendant to answer the complaint.

Reversed and remanded with directions.

O’Connor and McSurely, JJ., concur.


text:
    Polish American Building and Loan Association, Appellee, v. Joseph Zintak et al., Defendants. Appeal of Joseph Zintak and Julia Zintak, Appellants.
    Gen. No. 40,510.

      Opinion filed October 3, 1939.
    Rehearing denied October 18, 1939.
    Edward J. Warren, of Chicago, for appellants; Arthur C. Schreiber, of Chicago, of counsel.
    Irene Kuchinskas and John S. Rybioki, both of Chicago, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

The defendants appeal from a decree of foreclosure entered July 14, 1938, whereby $4,852.89 was found to be due and the sale of the premises ordered. The bill, which is in the usual form, was filed July 22, 1936. Plaintiff is a corporation organized under the laws of Illinois as a building and loan association. The cause was heard on exceptions to the report of a master, which were overruled, and a decree entered as recommended by him.

The defense interposed was a claim by way of offset set up by answer and by counterclaim. This claim was to the effect that defendant, Joseph Zintak, on October 10, 1934, prior to the filing of the bill, purchased from Martha Zintak certificate No. 993 for 33% shares of Series No. 96, Class “C” paid up stock of the- plaintiff association; that this stock had matured and represented an indebtedness of the plaintiff association to the holder of the certificate to the amount of $100 a share, upon compliance by the holder with conditions set forth upon the certificate; that on October 10, 1934, prior to the beginning of this suit, defendants offered to set off the value of this certificate against their indebtedness to the association; that on October 18, 1934, they tendered the certificate to the association and demanded that it be transferred to their own names and the set-off allowed them, offering to pay in cash the balance due, if any, on the mortgage. The plaintiff refused to allow the offset, demanded payment of the mortgage and in default thereof began suit.

Defendants contend they are entitled to maintain this claim of offset as a defense to the action under section 38 of the Civil Practice Act (Smith-Hurd’s Anno. Stats., par. 162, p. 205). This section is liberal in its provisions and if, as a matter of fact, defendants have a valid claim for which they can recover in a civil action, we may not doubt that under the provisions of this statute their claim of offset may be properly presented as a defense.

The master found that during September and October, 1934, and at the time of the alleged tender of the certificate, the plaintiff association had adopted a resolution then in effect, providing that as a condition precedent to the withdrawal of any shares of paid up capital stock from the association the owner should list the same for the purpose of receiving payments according to funds provided to be distributed ratably for that purpose; that neither Martha Zintak nor defendant complied with the resolution by listing this stock; that the shares were not in fact tendered to the association, and that there was no binding or valid agreement to apply the proceeds of this certificate on the mortgage indebtedness; that defendants were therefore not entitled to this setoff. The master finds this resolution had been approved by the auditor of public accounts and was in effect during September and October, 1934. This finding is not accurate. As a matter of fact, the resolution was approved by the auditor on October 31, 1934. This is not, however, of controlling importance. At the time of the adoption of the resolution by the board of directors, the law of June 19, 1919 (see Laws of 1919, p. 297, sec. 13), as amended by the act of June 13, 1933, was applicable (Laws of 1933, p. 304, sec. 1; Historical note, Smith-Hurd’s Anno. Stats., ch. 32, p. 521; Ill. State Bar Stats. 1935, ch. 32, sec. 13, par. 387 [Jones Ill. Stats. Ann. 14.13]). The law now applicable to such withdrawals is set forth in section 13 of the Building and Loan Association Act as amended. (Ill. Rev. Stat. 1937, ch. 32, par. 225, pp. 841, 842 [Jones Ill. Stats. Ann. 14.13]; Smith-Hurd’s Anno. Stats., ch. 32, par. 225, p. 518.) The law at the time of this transaction was that if the by-laws so provided members desiring* to withdraw all or any part of their credit on shares might be required to make written application which should be received and filed in numerical order, and payments upon the same made in the order in which same were filed, and that upon withdrawals such members should be entitled to receive the full amount of dues paid in and such interest as was fixed by the by-laws or such proportion of the profits proportioned thereto as the board of directors might from time to time by resolution determine, less such charges enumerated in the act as might be due, provided that the amount of interest or profits paid should not exceed the actual earnings of the shares to be withdrawn ; and further, that at no time should more than one-half of the funds in the treasury of the association be applicable to the demand of the withdrawing members, or payment of matured shares, without consent of the board of directors. The law expressly provided: “No such association shall be permitted to carry for any member, any demand, commercial or checking* account.” This law we assume was a part of the contract of Martha Zintak at the time she became the owner of the stock. It was issued to her as fully paid up, as the certificate under seal of the corporation declares, on the 10th day of October, A. D. 1934. On the back of the certificate appears the printed statement of the conditions upon which it was issued, to which the holder assented by acceptance of the certificate. The third condition was as follows: 11 Certificates of paid up stock as a general rule may be filed for withdrawal at any time without notice, but to protect the interest of investors, members and borrowers, and to avoid the sacrifice of securities, notice provided by law is required. Withdrawal notice of members will be filed in the order in which they are received and paid from the regular receipts of the Association in the order filed. ’ ’ This condition of the certificate does not appear in defendant’s abstract but is presented by an additional abstract filed by plaintiff. Defendants never complied with this condition and positively refused to comply with it. Manifestly, defendants cannot be permitted to set off in a foreclosure proceeding a claim which they have declined to mature by complying with conditions precedent. In Albrecht v. Dillon, 224 Ill. App. 421, the court said in substance that a defendant could not assert by way of set off against a plaintiff a claim for which he could not bring an independent action at law. In Billings v. Mounds Building & Loan Ass’n, 295 Ill. App. 593, it has been held that a holder of paid up shares in a building and loan association is not a general creditor, and that a voucher issued for her stock cannot be held to create the relationship of creditor and debtor, the holder having continued to receive her dividends as other shareholders.

The law which became a part of the contract under which defendants claimed, the conditions stated on the back of the contract with which defendants have not complied, and the nature of the obligation are such as to preclude the allowance of this offset. As plaintiff points out, such a rule if carried out during the past few years would have bankrupted every building and loan association in the State. For these reasons the decree of foreclosure was justified, the alleged setoff was properly disallowed, and the decree is affirmed.

Decree affirmed.

O’Connob and McSueely, JJ., concur.


text:
    Wallie Johnson, Executor of Estate of Christine H. Pearson, Deceased, Appellee, v. Kate Matthews, Appellant.
    Gen. No. 40,547.
    Opinion filed October 3, 1939.
    Truman K. Gibson, Jr., of Chicago, for appellant; H. H. Gibson and J. G. Lemon, Jr., both of Chicago, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

In an action on contract based upon a promissory note for $1,148, dated December 19, 1935, and upon trial by the court, there was a finding against defendant with judgment for $1,308.70, from which defendant appeals. The plaintiff having died pending the suit, her executor was substituted and the judgment is in favor of the executor.

The defense interposed is that the note was taken in contravention of plaintiff’s agreement with the Home Owners Loan Corporation, whereby she had agreed to accept in full of her claim against the defendant, amounting to $5,044.08, the sum of $1,000, and not to accept additional consideration. The affidavit also avers that plaintiff represented no notes were given in any connection with the obligation; further that thé note was in fact given without consideration, contrary to public policy; and that nothing was therefore due.

The proceedings upon the trial appear in the record by stipulation received in lieu of a report of the proceedings. It appears the note was offered in evidence and testimony given in computation of the amount due upon it, whereupon the plaintiff rested. Defendant then produced Bichard O ’Hanlon, who testified that he appeared in response to a subpoena duces tecum, directed to the Home Owners Loan Corporation, and had brought with him File Ho. 48,452, which was the record of a Home Owners Loan Corporation loan made to defendant, Kate Matthews. He testified he did not have personal knowledge of the transaction and said, over objection, that his records showed the loan was made December 19, 1935. He also produced defendant’s exhibits 1 and 2, papers purporting to be signed by plaintiff in connection with that transaction.

John P. Edelen then testified for defendant that he was a real estate broker with offices at 543 East 47th street, Chicago; that he was the agent of defendant in securing a release of plaintiff’s obligation on defendant’s property, and was personally interested in defendant and had knowledge of the details of the release; that he was present at numerous conferences held between, plaintiff and defendant and the Home Owners Loan Corporation. The court thereupon sustained an objection to further testimony on the ground that the witness was disqualified from testifying under section 2 of the Evidence Act because he was the agent of defendant in the transaction and was personally interested in defendant. The only witness having personal knowledge of the transaction having been held to be disqualified, the court found for plaintiff, as heretofore stated. The fact that the witness Edelen acted as agent for defendant and had a personal interest in her success does not disqualify him under section 2 of the Evidence Act. The interest which disqualifies a witness from testifying against an administrator must be an actual financial interest that will result in pecuniary gain or loss for the witness. It has nothing whatever to do with his understanding or feeling. This has been held in many cases in this and other States. Bellman v. Epstein, 279 Ill. 34; Ackman v. Potter, 239 Ill. 578; Allen v. North, 271 Ill. 190; Pyle v. Pyle, 158 Ill. 289; Brownlie v. Brownlie, 351 Ill. 72; Thompson v. Wilson, 56 Ill. App. 159; Wright v. Whitaker, 137 Ill. App. 598; Manegold v. Massachusetts Life Ins. Co., 131 Ala. 180. The same cases are to the effect that the mere fact that the witness acted as agent of the defendant in a Home Owners Loan Corporation transaction is not sufficient to disqualify him as a witness. The Home Owners Loan Corporation is a public agency. 12 U. S. C. A., sec. 1467; Const. U. S., art. 1, sec. 10, amend. 5. A note executed and delivered under the circumstances indicated by the affidavit of merits in this case is void as against public policy. Jessewich v. Abbene, 277 N. Y. Supp. 599; Chicago Title & Trust Co. v. Szymanski, 289 Ill. App. 600; Meek v. Wilson, 283 Mich. 679.

For the error indicated the judgment is reversed and the cause remanded for another trial.

jReversed and remanded.

O’Cohhor and McSurely, JJ., concur.