text:
    Mildred L. Rocca, Appellant, v. Metropolitan Life Insurance Company, Appellee.
    Gen. No. 40,513.
    Opinion filed June 21, 1939.

      Stebbins, McKinley & Price and Guy C. Guerine, all of Chicago, for appellant; L. A. Stebbins and Paul E. Price, of counsel.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellee ; James C. Rich and Nathaniel Rubinkam, both of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

Plaintiff Mildred L. Rocca brings this appeal from the action taken by the trial judge when the case was tried a second time before a jury, when at the close of plaintiff’s testimony the court sustained defendant’s motion to exclude from the jury all the evidence offered and received on the part of plaintiff, and to instruct the jury to find the issues for the defendant.

The suit is based upon a claimed renewal for ten years of a term policy of life insurance on the life of Enrico F. Rocca, the plaintiff Mildred L. Rocca being the beneficiary under said policy. When this case was in the Appellate Court on a former appeal the judgment of the superior court was reversed and the cause was remanded for a new trial, as the verdict and judgment were against the manifest weight of the evidence.

No change in the pleadings have been made and they are the same as they were at the former trial, and no question is raised thereon.

Plaintiff’s theory of the case is that under the decision heretofore rendered in this case and other cases by this court, wherein the cause was reversed and remanded for a new trial, it was the duty of the court to submit the case to the jury under instructions as to the law, as outlined in the court’s former opinion in this case and other cases.

Defendant’s theory of the case is that under the evidence submitted and the law as announced in the court’s former opinion, it was entitled, as a matter of law, to a directed verdict.

The error relied upon for reversal is that the court erred in sustaining defendant’s motion, at the close of the plaintiff’s evidence, to direct the jury to return a verdict for the defendant.

The former opinion filed in this cause was Rocca v. Metropolitan Life Ins. Co.. 293 Ill. App. 634 (Abst.), 13 N. E. (2d) 109.

A somewhat different question is presented at this time than was presented at the former hearing. At that time there being a verdict and judgment, it was our duty to consider all the evidence in order to determine whether or not the verdict and judgment were against the manifest weight of the evidence. On this appeal we shall consider only the action of the trial court in excluding the evidence of the plaintiff at the close of plaintiff’s case and in instructing the jury to find a verdict of not guilty.

It is well understood that the court, in sustaining the defendant’s motion for a directed verdict has no power to weigh the evidence, or to sustain the motion, if there was any evidence favoring plaintiff which standing alone and considered as true, together with the inference which may legitimately be drawn therefrom, the jury might reasonably have found for plaintiff.

As was said in Ziraldo v. Lynch Co., 365 Ill. 197: “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.”

In their argument counsel for plaintiff says there was no evidence offered other than that which was offered at the former hearing. That being true, we shall consider in passing on the motion in question, only the evidence offered by plaintiff.

The policy which was offered in evidence by plaintiff, provides that it may be renewed for a further term of 10 years:

“ (1) By written notice to the Company at its Home Office;

“(2) accompanied by the policy for suitable endorsement on or before the expiration of the insurance hereunder, and

“ (3) by paying the premiums to be fixed by the age on the birthday nearest to the date of such renewal.”

It is further provided in the policy, plaintiff’s exhibit 1, that:

“No agent is authorized to waive forfeiture or to make, modify or discharge contracts, or to extend the timé for paying a premium. ...”

The policy further provides that the privilege of renewal is as follows:

“If the insured be not over the age of sixty-five years the owner of this policy may renew this policy without medical examination for further terms of ten years each by written notice to the company at its Home Office, accompanied by the policy for suitable endorsement on or before the expiration of the insurance hereunder and by paying the premiums to be fixed by the age on the birthday nearest to the date of such renewal in accordance with the following table for each $1,000.00 of insurance. ...”

Plaintiff’s exhibits 2 and 3 are a form for the application for renewal of Renewable Term Policy. These documents were found unsigned among the effects of the assured after his death. After providing how the renewal should be made for a further term of 10 years from December 11, 1932, at the annual premium of $58.50, it provides as follows:

“This form must be sent to the Home Office of the Company accompanied by the Policy for suitable endorsements, on or before the date of the expiration of the insurance, and the first annual renewal premium due on the date stated above must be paid on or before said date of expiration.”

The premium was not actually paid nor was the renewal application forwarded, nor was it produced as having been signed at the time of the trial. At the time of the trial the only testimony in this regard was that of the beneficiary who testified that the agent Ben Seaman, whom she saw at her husband’s drug store, told her that there was a certain amount of money coming to the assured who was her husband, and that he, Seaman, would apply it on the policy as a payment on the new policy and that the balance could be paid within 30 days thereafter. The only testimony produced at the hearing which was intended to prove the authority of the agent Seaman, was that of Seaman himself. There is no doubt that Seaman was the agent of the insurance company. That brings us to a consideration of the question as to whether or not, admitting to be true what Seaman said, can it be shown that the power and authority of an agent can be proven by the testimony of that agent himself?

In the case of Doclson v. Loaleen Mut. Ben. Ass’n, 247 Ill. App. 283, suit was brought on a life insurance policy. The defense was that false answers were made to questions contained in the application; that the insured had knowingly, falsely and fraudulently represented that he was in sound physical health and had never had tuberculosis, and relying upon the answers given by the assured the policy was issued. The plaintiff attempted to show that the agent of the insurance company was informed as to the condition of health of the insured, and that the insurance company had full knowledge of all the facts as to the health of the insured.

The evidence was objected to by counsel for the association and this objection was overruled. The Appellate Court held this was error and cited the case of Merchants’ Nat. Bank v. Nichols & Shepard Co., 223 Ill. 41, wherein the Supreme Court said:

“The fact of agency or the authority of the agent cannot be established by showing what the agent said or did, and the power of the agent can only be proved by tracing it to the source of authority — -the principal— by some word or act of such principal.

“There is no claim that the power was expressly given, but the argument is that the power arose out of the nature of the agency and that plaintiff had a right to assume that the power existed. It is to be remembered that persons dealing with an assumed agent are bound, at their peril, to ascertain not only the fact of the agency, but the extent of the agent’s authority. They are put upon their guard by the very fact that they are dealing with an agent, and must, at their peril, see to it that the act done by him is within his power. It is their right and duty to ascertain the extent of his power, and to determine whether his act comes within the power and is such as to bind his principal. (Mechem on Agency, sec. 276; Reynolds v. Farree, 86 Ill. 570; 1 Am. & Eng. Ency. of Law,— 2d ed. — 987.) An agent cannot confer power upon himself, and therefore his agency or authority cannot be established by showing either what he said or did. (Proctor v. Tows, 115 Ill. 138; Mullanphy Savings Bank v. Schott, 135 id. 655.) The source of authority is the principal, and the power of the agent can only be. proved by tracing it to that source in some word or act of the alleged principal. In this case there was no evidence tending to prove that the power to borrow money was an incident of the agency. For such an act as that an agent must have express authority, or some power must be expressly conferred upon him which cannot be otherwise executed. The fact that the defendant carried on the sale of its products through the medium of agencies distributed over the country would be no ground for a conclusion that the various agents for making sales of machinery and collecting the proceeds were clothed with authority to borrow money. ’ ’

So, in the instant case, the policy of insurance offered by plaintiff expressly shows that the agent had no power to change the terms of the policy, so far as payment and reinstatement were concerned, nor have we been able to find any testimony tending to prove that the agent had any power, excepting that which plaintiff said Seaman told her when .he talked with her about the,extension of her husband’s policy. We are mindful of the rule, and if there were any evidence or any testimony from which any legal inference might be drawn, showing the agent had any authority to bind his principal in changing the terms of the policy, we would promptly reverse the trial court in its decision and direct that the case be- heard before a jury, but we have been unable, after a most diligent search, to find any evidence which would justify our doing this. The claimed conversation between Seaman, the agent, and the beneficiary could not be considered as evidence affecting the contract between the insured and the defendant company.

We think the trial court did right in sustaining the motion to exclude the evidence of the plaintiff from the jury and in instructing the jury to find the defendant not guilty.

For the reasons herein given the judgment of the superior court is hereby affirmed.

Judgment affirmed.

Hebel and Burke, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Denis E. Sullivan

license: Public Domain

text:
    Flora Sullivan, Appellant, v. Alice Heyer, Appellee.
    Gen. No. 40,518.
    Opinion filed June 21, 1939.
    Rehearing denied July 3, 1939.
    Thomas C. Hollywood and Lloyd T. Bailey, both of Chicago, for appellant.

      Rider & Thuma, of Chicago, for appellee; Chester D. Kern, of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

A verdict was rendered in the superior court finding the defendant not guilty for injuries which plaintiff received while riding as a passenger in defendant’s automobile. Plaintiff: brings this appeal.

Plaintiff alleges that on January 18, 1934, at about 10:30 o’clock in the evening she was invited by the defendant to ride with her in her automobile as defendant’s guest; that defendant drove her automobile north on Michigan avenue and just before she reached Washington street there were a number of automobiles ahead of her which had stopped for the traffic signal; that defendant was operating her automobile at the rate of 30 to 35 miles an hour and she was driving on the inside lane of traffic near the center of the street; that as she approached Washington street she put on the brakes, but her automobile struck the rear end of another automobile in front of her which was standing at the intersection waiting for the traffic signal to change; that defendant’s automobile struck the other automobile with such violence as to propel it across the intersection of Washington street; that the front part of defendant’s automobile was wrecked, breaking the steering wheel, steering knuckle, axle, headlight and displacing the engine; that plaintiff sustained serious and permanent personal injuries as a result of the accident.

Suit was commenced under ch. 95½, par. 58a, sec. 42-1, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 85.064(1)], known as the “Guest Statute,” under the provisions of which statute there can be no recovery unless the injuries result from the wilful and wanton conduct of the driver of the automobile.

The evidence shows, and there does not seem to be any dispute as to the facts, that plaintiff, who was at the time of the trial 28 years of age, was invited by the defendant to ride in defendant’s Oldsmobile coupe; that a Mr. Kelley also rode with them; that defendant drove the automobile and that plaintiff sat between defendant and Mr." Kelley, the automobile having only one seat; that defendant drove the automobile north on Michigan avenue and as she approached its intersection with Washington street, they noticed an automobile standing in the inner lane of the street waiting for the traffic light to change; that defendant’s automobile struck the automobile that was standing at the intersection with such force that the standing automobile was pushed across the street intersection a distance of approximately 80 or 100 feet; that as a result of the accident plaintiff was rendered unconscious and was severely injured; that she was removed to a hospital.

Complaint is made as to the rulings of the court on the admission of evidence and also in the giving of instructions, and we think some of the points are well made.

The court erred in withdrawing from the consideration of the jury the statement of plaintiff, who, just prior to the accident, noticing the automobiles ahead of them and the speed at which they were traveling, exclaimed: “My God, Alice, that car: we are going to hit that car.’’ The court sustained the objection. This evidence was competent, not only as part of the res gestae, but it was a remonstrance and caution to the driver.

As to who paid plaintiff’s bill while she was in the hospital and the further fact that defendant paid it, was excluded from the consideration of the jury. This could well be construed as an admission of defendant’s liability. The court erred in sustaining objections to this evidence.

The trial court further erred in striking out the testimony as contained in Kelley’s deposition, he being the other occupant in defendant’s car at the time of the accident, where, in answer to an interrogatory, he stated: “Instead of slackening up, I thought one time she speeded up the car.” This was proper evidence and should have been submitted to the jury.

Complaint is also made to the giving of Instruction No. 16, at the request of the defendant, which reads as follows:

“16. The court instructs the jury that if you believe from the evidence in this case and the instructions of the court that the defendant, immediately prior to the accident in question, was placed in a sudden emergency, with peril imminent, then you are instructed that under such state of proof the defendant would not be required to use the same degree of self-possession, coolness and judgment as when there is no imminent peril.”

The giving of such an instruction was prejudicial error, as it would mislead the jury as to the rule of law applicable to the conduct of defendant and if followed by a jury, as doubtless it was, it would make a finding of guilty practically impossible.

In the case of McLaren v. Byrd, Inc., 296 Ill. App. 34.5, 15 N. E. (2d) 993, 995, an instruction somewhat similar was given as in this case. In the McLaren case the defendant was a truck driver who had been driving along the road when the lights on his truck suddenly went out. The truck was the semi-trailer type and he stopped to replace the fuse which had burned out. While replacing the fuse the truck was hit from the rear by a Chevrolet automobile in which William W. McLaren who was killed as a result of the accident was riding. The evidence showed that when the fuse burned out the lights on the truck were extinguished and that the defendant did not place flares on the roadway in the rear of the truck, in accordance with the State law in order to protect other motorists; that the accident occurred at 59th street and Harlem avenue. In finding that the giving of such an instruction was erroneous, the writer in that opinion, who happens to be the writer of this opinion also, stated:

The difficulty with this instruction is that it selects out the name of a particular witness and speaks of him as being suddenly confronted with an emergency. There is no evidence in the record that Howe, the witness, was confronted with any emergency, but on the contrary he stated that he did not know anything about the accident until after it had happened. He claimed . . . that he knew nothing of the approaching automobile until after the collision. In addition to that the so-called emergency which would relax the rule, and thereby relieve a person from the use of the same degree of self-possession, coolness and judgment, must be such imminent peril and perilous position which would be caused by an agency beyond his control. Chicago & E. I. R. Co. v. Storment, 190 Ill. 42; Bunch v. McAllister, 266 Ill. App. 248. One cannot create an untoward situation or emergency by his own action and then by reason of such situation so created be relieved from such responsibility as the law requires of a person acting under normal conditions. The giving of such instruction was erroneous.”

It has been held that where an overtaking vehicle crashed into the rear of the car in front that had gradually come to a stop, the rule that a driver confronted by a sudden emergency is not required to make the wisest choice, applied only where the emergency arose through negligence of another, and not where it arises by his own negligence in driving at a reckless rate of speed and at an unsafe distance from the car ahead. Stromer v. Dupont, — La. App. —•, 150 So. 32.

In Pennsylvania the courts have laid down the rule as set forth in Byrne v. Schultz, 306 Pa. 427, p. 433, wherein the court said:

‘ ‘ The law only makes obligatory the rule of common sense regarding the duty of a driver at the intersection of streets, where traffic is very dangerous because conflicting. lie must be diligent, must exercise the highest degree of care, must have his car under complete control, and must look and see what is visible before attempting to cross the intersecting street. ’ ’

It is very necessary in this type of case in determining whether wilful and wanton acts were proven, that the jury be instructed properly as to the law governing human conduct at the time of the accident. It is manifest that had the jury followed this instruction as given, they could arrive at no verdict other than they did and a verdict based on an improper statement of the law should be set aside.

For the reasons herein given the verdict and judgment of the superior court is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded.

Hebel and Burke, JJ., concur.


text:
    First District.
    Lawrence A. Barrett, appellee, v. Morris Heichman, appellant.
    Gen. No. 40,371.
    Opinion filed April 20, 1939.
    Rehearing denied May 8, 1939.
    Gustav E. Beerly, for appellant; John F. Diffenderffer, Jr. and Richard T. Savage, of counsel. Concannon, Dillon, Bostelman & Snook, for appellee; R. F. Bostelman and Austin G. Rigney, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Lawrence A. Barrett, appellee, v. Reinhardt Volkman, appellant.
    Gen. No. 40,372.
    Opinion filed April 26, 1939.
    Rehearing denied May 8, 1939.
    Gustav E. Beerly, for appellant; John F. Diffenderffer, Jr. and Richard T. Savage, of counsel. Concannon, Dillon, Bostelman & Snook, for appellee; R. F. Bostelman and Austin G. Rigney, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the, court.


text:
    Lawrence A. Barrett, appellee, v. R. A. Gardner, appellant.
    Gen. No. 40,373.

      Opinion filed April 26, 1939.
    Rehearing denied May 8, 1939.
    Gustav E. Beerly, for appellant; John F. Diffenderffer, Jr. and Richard T. Savage, of counsel. Concannon, Dillon, Bostelman & Snook, for appellee; R. F. Bostelman and Austin G. Rigney, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.


text:
    Lawrence A. Barrett, appellee, v. J. D. Wallace, appellant.
    Gen. No. 40,374.
    Opinion filed April 26, 1939.
    Rehearing denied May 8, 1939.
    Gustav E. Beerly, for appellant; John F. Diffenderffer, Jr. and Richard T. Savage, of counsel. Concannon, Dillon, Bostelman & Snook, for appellee; R. F. Bostelman and Austin G. Rigney, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.


author: Mr. Justice Hebel

text:
    Phillip Brenner, appellant, v. Lincoln Dairy Company et al., appellees.
    Gen. No. 40,320.
    Opinion filed April 26, 1939.
    Isadore Wolf and McKinley, Price & Quindry, for appellant; S. E. Quindry, of counsel. William A. Romanek, for appellees.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Collateral Finance Company, appellant, v. Sam Berman and Sadie Berman, appellees.
    Gen. No. 40,397.
    Opinion filed April 26, 1939.
    Rehearing denied May 8, 1939.
    Harold J. Green and Freed & Chapman, for appellant; Irving Goodman, of counsel. Louis Steinberg, for appellees; Reuben Freedman, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Sarah F. Peterson and Charles A. Peterson, appellees, v. Andrew Clark, trading as A. Clark Transport Company, appellant.
    Gen. No. 40,488.

      Opinion filed April 26, 1939.
    Robertson, Crowe & Spence, for appellant; Burt A. Crowe, of counsel. Finn & Miller, for appellees.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Pauline McBride, appellant, v. Leonard W. Boltz, appellee.
    Gen No. 40,522.
    Opinion filed April 26, 1939.
    Chester D. Kern and John P. Derning, for appellant. George F. Callaghan, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.


author: Mr. Presiding Justice Scanlan

text:
    Thome Barnowsky, appellant, v. Mayfair Laundry Company et al., appellees.
    Gen. No. 40,306.
    Opinion filed May 2, 1939.
    Rehearing denied May 20, 1939.
    B. Pelechowicz and Martin M. Gross, for appellant. John Owen, for appellees; Francis J. Mc Greal and Raymond J. Boland, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Economy Plumbing and Heating Company, Inc., appellee, v. Frank Burman et al., appellants.
    Gen. No. 40,587.
    Opinion filed May 2, 1939.
    William Feldman, for appellants. Joseph B. Bergman, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


author: Mr. Justice Friend

text:
    Goldie Buehler, appellant, v. Albert C. Buehler, appellee.
    Gen. No. 39,956.
    Opinion filed May 2, 1939.
    Jacob G. Grossberg and Harry May, for appellant. Vernon R. Loucks and A. J. Hennings, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Claude Wayland, appellant, v. City of Chicago, appellee.
    Gen. No. 40,345.
    Opinion filed May 2, 1939.
    Rehearing denied May 20, 1939.
    Irving G. Zazove and Charney & Servos, for appellant. Barnet Hodes, Corporation Counsel, for appellee; Alexander J. Resa, Assistant Corporation Counsel, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    John E. Erickson, appellant, v. Arthur J. Olson et al., individually and as Bondholders’ Protective Committee of Paulina Apartments, appellees.
    Gen. No. 40,410.
    Opinion filed May 2, 1939.
    Paul J. Huxmann and David J. Swanson, for appellant. Murphy, Lilliander & Gemmill, for appellees; William B. Gemmill, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Anna LaRocco, appellee, v. Joseph Antonello, appellant.
    Gen. No. 40,419.
    Opinion filed May 2, 1939.
    Rehearing denied May 20, 1939.
    Beverly & Klaskin, Harry I. Parsons and Levy, Sonnenschein & Mitchell, for appellant. Guy C. Guerine, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Alex Polatsek, appellee, v. Dr. Mandel Cohen, appellant.
    Gen. No. 40,428.
    Opinion filed May 2, 1939.
    George B. Cohen, Abraham H. Cohen and Jose Ward Hoover, for appellant. Morris A. Haft and Ira L. Shapiro, for appellee; Thomas Marshall, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


text:
    Alonzo A. Pope, administrator de bonis non of estate of Aaron-Eaten, deceased, appellee, v. United Funeral System Association, appellant.
    Gen. No. 40,551.

      Opinion filed May 2, 1939.
    B. G. Clanton, for appellant. Brown, Brown, Cyrus & Greene, for appellee; Sydney P. Brown and Marcus A. Mahone, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.


author: Mr. Presiding Justice McSurely

text:
    Sidney Belmont, trading as Sidney Belmont Amusement Service, appellee, v. Hal Silver, appellant.
    Gen. No. 40,486.
    Opinion filed May 22, 1939.
    Marston, Friedlund & Friedlund, for appellant; Emil N. Levin and John Wilkinson, of counsel. Pruitt & Grealis, for appellee; John J. Grealis and George K. Ray, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Adeline Grimm, executrix of estate of Gust H. Grimm, deceased, appellee, v. William Dunn, appellant.
    Gen. No. 40,496.
    Opinion filed May 22, 1939.
    Robert D. Melick, for appellant. Richard P. Lambert, Jr., for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Ralph C. Sullivan, executor of estate of Mary O’Neil, deceased, appellant, v. Arthur Culp et al., appellees.
    Gen. No. 40,504.
    Opinion filed May 22, 1939.
    Samuel G. Rautbord, for apxrellant; Arthur J. Goldberg, of counsel. Jess S. Raban, for appellees; Harold J. Finder, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    People of the State of Illinois, defendant in error, v. Patrick J. Billings, plaintiff in error.
    Gen. No. 40,520.
    Opinion filed May 22, 1939.
    Rehearing denied June 6, 1939.
    Charles A. Bellows, for plaintiff in error. Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, Blair L. Varnes and Julius L. Sherwin, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    United States Gypsum Company, v. Thomas D. Randall et al. Economy Plumbing and Heating Company, Inc. et al., appellants, v. Johanna Habenicht, appellee.
    Gen. No. 40,500.
    Opinion filed May 22, 1939.
    Arthur J. Goldberg and Joseph B. Bergman, for appellants; Arthur J. Goldberg and Leonard G. Nierman, of counsel. Harry A. Biossat, for appellee Johanna Habenicht.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Wilma E. Kinney, appellant, v. Philip C. Lindgren et al., appellees.
    Gen. No. 40,480.
    Opinion filed May 23, 1939.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Lester D. Summerfield, appellee, v. Harold A. Clark, appellant. The First National Bank of Chicago and Chicago Rawhide Manufacturing Company, Garnishees.
    Gen. No. 40,529.
    Opinion filed June 19, 1939.
    Dwight H. Green and Thomas Dodd Healy, for appellant. Cirese & Cirese, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    People of the State of Illinois ex rel. Oscar Nelson v. Home Bank and Trust Company. Beatrice Nowakowski et al., appellees, v. E. E. Mueller, appellant.
    Gen. No. 40,523.
    Opinion filed June 19, 1939.
    Rehearing denied June 30, 1939.
    Roy D. Keehn and W. M. Keeley, for appellant. Charles M. Haft, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice O ’Connor

text:
    Clarence Baumann, appellee, v. Amanda B. Gore, appellant.
    Gen. No. 40,752.
    Opinion filed June 19, 1939.
    Wellington G. Brown, for appellant. Errett O. Graham, for appellee.
   Mr. Justice O ’Connor

delivered the opinion of the court.


text:
    Nora M. Froehler, appellant, v. North American Life Insurance Company of Chicago, appellee.
    Gen. No. 40,473.
    Opinion filed June 21, 1939.
    McKinley, Price & Quindry, for appellant; William McKinley and Paul E. Price, of counsel. Thomas E. Rooney and Arthur C. Rooney, for appellee; Ferdinand Goss, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.


author: Mr. Justice Burke

text:
    People of the State of Illinois ex rel. Oscar Nelson v. Home Bank and Trust Company. Elsie Mammel, appellant, v. Casimir E. Midowicz, appellee.
    Gen. No. 40,365.
    Opinion filed June 21, 1939.
    Chapman & Cutler, for appellant; Roscoe C. Nash, of counsel. Roy D. Keehn and W. M. Keeley, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.


text:
    Marie Mizwinski, individually and as administratrix of estate of John Biernat, deceased, et al., appellees, v. Frank Biernat et al. Appeal of Mary Biernat, appellant.
    Gen. No. 40,432.
    Opinion filed June 21, 1939.
    Wachowski & Wachowski, for appellant; Casimer R. Wachowski and Michael Siemanski, of counsel. Earl J. Walker, for appellees.
   Mr. Justice Burke

delivered the opinion of the court.


text:
    Rachel Mayer et al., appellees, v. Metropolis Theatre Company et al. Appeal of 32 West Randolph Corporation et al., appellants.
    Gen. No. 40,630.

      Opinion filed June 21, 1939.
    Chapman & Cutler, Gottlieb & Schwartz and Dunbar & Rich, for appellants; Dayton Ogden, David O. Dunbar and Harry E. Smoot, of counsel. Mayer, Meyer, Austrian & Platt, for appellees; Herbert. Becker, Frank D. Mayer and Edwin A. Rothschild, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.


text:
    Bismarck Hotel Company, appellant, v. John G. Wittbold, appellee.
    Gen. No. 40,580.
    Opinion filed June 21, 1939.
    Castle, Williams & McCarthy, Emmett J. McCarthy and Robert R. Hanley, for appellant. Robert D. Melick, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.


text:
    Loraine Marcott, appellee, v. L’Union Saint-Jean Baptiste D’Amerique, appellant.
    Gen. No. 40,615.
    Opinion filed June 21, 1939.
    Cummings & Wyman, for appellant; Edmund S. Cummings, Cecil R. Smith and Elmer C. Grage, of counsel. Jacob G. Grossberg and Frank C. Levitón, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.


author: Mr. Justice Hebei

text:
    3333 Washington Boulevard Building Corporation et al., appellants, v. R. C. Fitchie and Clara B. Rudolph, appellees.
    Gen. No. 40,702.
    Opinion filed June 21, 1939.
    Henry H. Koven, for appellants; Henry H. ICoven and David Boglub, of counsel. Ward, Curtis & Polin and Leon N. Miller, for appellees; Al Martin Curtis and Leon N. Miller, of counsel.
   Mr. Justice Hebei

delivered the opinion of the court.


author: Mr. Justice Huffman

text:
    Second- District.
    LaSalle Extension University, appellant, v. Thomas E. Tucker, appellee.
    Gen. No. 9,382.

      Opinion filed January 26, 1939.
    Rehearing denied May 2, 1939.
    Gower, Gray & Gower, for appellant. Chas. D. Henry, Jr., for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.


author: Mr. Justice Wolfe

text:
    Andrew B. Henderson, appellant, v. Willard Johnson et al., appellees.
    Gen. No. 9,373.
    Opinion filed January 26, 1939.
    Rehearing denied May 2, 1939.
    B. Jay Knight, J. E. Goembel and Frederick H. Hayo, for appellant. Large & Reno and Ralph S. Zahm, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Ella O’Brien et al., appellees, v. Henry W. Voss et al., defendants. Nelle A. Leary Dillon, as administratrix of estate of James Shields, deceased, appellant.
    Gen. No. 9,369.
    Opinion filed March 7, 1939.
    Rehearing denied May 2, 1939.
    Edward Corlett, for appellant. William P. Lowrey, Jr., for certain appellees. Oscar R. Laraway, for certain other appellee. Frank J. Jones, for certain other appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Warren Horgan and Mae Horgan, appellees, v. City Trust and Savings Bank of Kankakee, defendant. Charles V. Maloney, appellant.
    Gen. No. 9,337.
    Opinion filed April 20, 1939.
    Sonnenschein, Berkson, Lautmann, Levinson & Morse, for appellant; Henry S. Moser and Jesse H. Brown, of counsel. Joseph J. Tolson, for appellees; Walter O. Schneider, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.


text:
    Frank Zimmer, administrator of estate of Joseph Zimmer, deceased, appellee, v. Chance S. Hill, appellant. Chance S. Hill, appellant, v. John Dallner and Frank Zimmer, administrator of estate of Joseph Zimmer, deceased, appellees.
    Gen. No. 9,359.
    Gen. No. 9,360.

      Opinion filed April 20, 1939.
    Hadley & Weaver, for appellant; Charles W. Hadley and John S. Woodward, of counsel. Ryan, Sinnot & Miller, for certain appellee. Herbert A. Grotefeld and Alschuler, Putnam & Johnson, for certain other appellee; Herbert A. Grotefeld and Edward F. Streit, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Virginia Warren, appellee, v. City of Waukegan, appellant.
    Gen. No. 9,397.
    Opinion filed April 20, 1939.
    George S. MeGaughey, for appellant. Lloyd T. Bailey and Harold Tallett, for appellee; Joseph W. Bailey, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Delbert O. Waud et al., appellees, v. Maurice Van Landuyt, appellant.
    Gen. No. 9,422.
    Opinion filed April 20, 1939.
    J. A. Miller, for appellant; Henry D. Fisher, of counsel. Wesley G. Carey and Gerald C. Snyder, for appellees; Lewis D. Clarke, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Tampico Farmers Elevator Company, appellant, v. Walnut Grain Company et al., appellees.
    Gen. No. 9,416.
    Opinion filed May 12, 1939.
    Rehearing denied June 22, 1939.
    Sheldon & Brown, for appellant. Jacob Cantlin, Samuel Rubin and E. E. Wingert, for certain appellee. Jacob Cantlin and Samuel Rubin, for certain other appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.


author: Mr. Justice Hayes

text:
    Third District.
    Charles E. LeHew, appellee, v. Jack Toombs, appellant.
    Gen. No. 9,151.

      Opinion filed April 24, 1939.
    Emanual Rosenberg and Ralph J. Monroe, for appellant. James T. Whitley, for appellee.
   Mr. Justice Hayes

delivered the opinion of the court.


author: Per Curiam.

text:
    Emma J. McMahan, appellant, v. Robert C. Daugherty, trading as Yellow Cab Company, appellee.
    Gen. No. 9,078.
    Opinion filed April 24, 1939.
    Rearick & Rearick, for appellant. Steely, Steely, Graham & Dysert and H. J. Hasch, for appellee; Walter V. Dysert, of counsel.
   Per Curiam.


author: Mr. Justice Stone

text:
    Fourth District.
    Archie W. Holemon, appellee, v. Royal Neighbors of America, appellant.
    Opinion filed March 13, 1939.
    Rehearing denied July 1, 1939.
    Thos. Williamson, for appellant; Warnock, Williamson & Burroughs, Kramer, Campbell, Costello & Weichert and N. J. Gundlach, of counsel. Frank C. Smith, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.


author: Mr. Presiding Justice Denis E. Sullivan Burke, J.,

text:
    Sam Ingalls, Appellee, v. John Raklios, Appellant.
    Gen. No. 40,531.
    Burke, J., dissenting.
    Opinion filed June 21, 1939.
    Rehearing denied July 3, 1939.
    Hermann P. Haase, of Chicago, for appellant.

      Sidney J. Wolf and Arthur Wolf, both of Chicago, for appellee; Sidney J. Wolf, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

Sam Ingalls filed a suit in the municipal court against John Raklios, the same being an action in tort, first class, the complaint alleging that on August 8, 1937, Ingalls delivered to the defendant Raklios the sum of $2,500, being part of the purchase price, with which to purchase certain restaurant properties at a bankruptcy sale, and if defendant did not purchase all of the Raklios Restaurants at said bankruptcy, sale, then the $2,500 was to be returned by Raklios to the plaintiff Ingalls.

The complaint further alleges that on August 9,1937, the restaurants were sold at the bankruptcy sale, but that Raklios did not purchase all of said restaurants at said bankruptcy sale, and after said sale was consummated to someone other than the defendant, the plaintiff demanded that the defendant return to bim the said $2,500, but that the defendant returned only $500 and refused to return the said balance of $2,000 to plaintiff, and thereby wilfully, maliciously and unlawfully converted the said $2,000 to his own use.

It appears from the record that on June 5, 1938, the defendant Raklios was duly served with a summons, but failed to appear and that thereafter a default judgment was duly entered against him. The cause was heard before the court without a jury and thereafter on June 22, 1938, the court entered the following judgment order:

‘ ‘ Court makes special finding of malice.

“Now comes the plaintiff in this cause, the defendant being absent and not represented, and thereupon this cause comes on in regular course for trial before the Court without a jury, and the Court having heard the evidence and the arguments of counsel and being fully advised in the premises, enters the following finding, to-wit:

“ ‘The court finds the defendant, John Raklios, GUILTY AS CHARGED IN PLAINTIFF’S STATEMENT OF CLAIM AND ASSESSES THE PLAINTIFF’S DAMAGES AT THE SUM OF TWO THOUSAND AND 00/100 DOLLARS ($2,000.00) IN TORT. ’

“This cause coming on for further proceedings herein it is considered by the Court that the plaintiff have judgment on the finding herein, and that the plaintiff have and recover of and from the defendant, John Raklios, the damages of the plaintiff amounting to the sum of Two Thousand and 00/100 Dollars ($2000.00) in form as aforesaid, assessed, together with the costs by the plaintiff herein expended, and that execution issue therefor.

‘ ‘ Malice body execution to issue. ’ ’

The execution was duly issued and the defendant taken into custody on said body execution on July 25, 1938.

More than 30 days after the entry of the judgment the defendant made an oral motion to quash the body execution which motion was overruled on August 11, 1938. This cause comes before this court on an appeal from the order which was entered overruling the motion to quash the body execution.

Apparently, no motion was made to vacate the original default finding of malice and the judgment entered by the court as heretofore recited. Ño motion of any kind was made until July 25, 1938, over 30 days after the entry of the judgment.

It is first contended that the judgment of the trial court was not necessarily conclusive of the question as to whether malice was the gist of the action.

The court found the defendant guilty as charged in the complaint and the complaint alleged that the defendant was retaining the money of the plaintiff which had been given him for a specific purpose and after demand duly made “willfully, maliciously and unlawfully converted the said Two Thousand Dollars ($2,000.00) to his own use.”

Rule 72 of the municipal court provides as follows:

“Whenever it is material to allege malice, fraudulent intention, knowledge or other condition of mind, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred. ’ ’

Under this rule of the municipal court we think the allegation of malice as set forth in the instant case was sufficient and the finding of the trial court was that malice was the gist of the action.

Greener v. Brown, 323 Ill. 221, was a case in which the plaintiff in error filed a petition in the county court of Cook county, in which he alleged that he had been arrested under a capias ad satisfaciendum issued out of the circuit court of Cook county on a judgment secured by Marvin C. Greener and Charles H. Glader for the sum of $2,669.28; that he is in custody of the sheriff by virtue of said writ and is desirous of being released from such arrest and imprisonment by delivering up his property. Greener and Glader filed a plea to the petition, in which they alleged that the petitioner was not entitled to his discharge because he was arrested under a capias ad satisfaciendum which was based upon a judgment in which malice was the gist of the action. On hearing before the court without a jury the court found that malice was the gist of the action in which the judgment had been rendered and ordered the petitioner remanded to the custody of the sheriff until released by due process of law. The Appellate Court affirmed the judgment of the county court and the cause went to the Supreme Court on a writ of certiorari. The Supreme Court in its opinion said:

“The question involved in the case is whether or not malice was the gist of the action in which the judgment against plaintiff in error was procured. That question is to be determined by an examination of the declaration.

“Malice, as that term is used in cases of this character, does not necessarily mean hatred or ill-will, but pertains to wrongs which are inflicted with an evil intent, design or purpose. Such malice may be shown by showing that the guilty party was actuated by dishonest motives with intent to perpetrate an injury. (Seney v. Knight, 292 Ill. 206; Kitson v. Farwell, 132 id. 327; First Nat. Bank of Flora v. Burkett, 101 id. 391.) That is the ‘gist of the action’ which constitutes the basis of the suit and without which the suit could not be maintainable. It is the essential ground or object of the suit, without which there is not a cause of action. (Jernberg v. Mix, 199 Ill. 254.) The case alleged in the declaration was one charging malice and not merely an action for the recovery of money. Malice was therefore the gist of the action and the capias ad satisfaciendum was properly issued.

“The judgments of the Appellate and county courts will be affirmed. ’ ’

As heretofore stated, a court of competent jurisdiction found the defendant guilty in an action in tort and made a special finding of malice and entered judgment against the defendant in the sum of $2,000 and ordered that a “malice body execution issue.” All of this was tantamount to a finding by the court that malice was the gist of the action even though the exact words of the statute are not employed.

We are of the opinion the procedure in this case was in compliance with the law and for that reason the judgment of the municipal court is affirmed.

Judgment affirmed.

Hebel, J., concurs.

Burke, J.,

dissenting: Prior to 1935, sec. 5, ch. 77, Ill. Rev. Stat., read:

“Execution against body, when.] § 5. No execution shall issue against the body of the defendant, except when the judgment shall have been obtained for a tort committed by such defendant, or unless the defendant shall have been held to bail upon a writ of capias ad satisfaciendum [respondendum] as provided by law, or he shall refuse to deliver up his estate for the benefit of his creditors.” In 1935 the section was amended to read: (sec. 5, ch. 77, Ill. Rev. Stats. 1937 [Jones Ill. Stats. Ann. 107.155]).

“Execution against body.] § 5. No execution shall issue against the body of the defendant except when the judgment shall have been obtained for a tort committed by such defendant, and it shall appear from a special finding of the jury, or from a special finding by the court, if the case is tried by the court without a jury, that malice is the gist of the action, and except when the defendant shall refuse to deliver up his estate for the benefit of his creditors. [As amended by act approved July 11, 1935.]” In a case where judgment was obtained for a tort that had been committed, the correct practice prior to the amendment was to require the clerk to" issue a capias ad satisfaciendum, under warrant of which the sheriff imprisoned the defendant. If the defendant wished to be released, he made application to the county court under the Insolvent Debtors ’ Act (ch. 72, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 109.378 et seq.]). Under that act it was the duty of the county court to discharge the prisoner if the court found that malice was not the gist of the action. Under the provisions of sec. 5, ch. 77, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 107.155], as amended, the clerk should not issue an execution against the body of the defendant, except when the judgment shall have been obtained for a tort committed by such defendant and it shall appear from a special finding of the jury, or from a special finding of the court if the case is tried by the court without a jury, that malice is the gist of the action. Before the section was amended, in almost every case a controversy arose in the county court as to whether malice was the gist of the action. The rule laid down by our Supreme Court was that the question was to be determined from the pleadings, where that could be done. If the question could not be resolved by reference to the pleadings, then it was necessary to examine the bill of exceptions. Thus, controversies arose in nearly all cases. The chief object of the amendment was to obviate the necessity for these controversies and to permit the .matter to be decided in the trial court by requiring the court or the jury to enter a special finding that malice is or is not the gist of the action. Where any defendant complains that he is unlawfully restrained of his liberty by the issuance of a capias ad satisfaciendum, application should be made to the trial court to quash the writ. The court may then determine whether the clerk properly issued the writ. To sustain the order of the trial court in the instant case, wherein that court declined to quash the writ and release the defendant, it has been necessary for the court to discuss the pleadings. Thus, the majority opinions returns to the practice that prevailed prior to 1935, and which section 5, as amended, endeavors to correct. The notation in the record, which is separate and apart from the finding and judgment order, “Court makes a special finding of malice,” is not a compliance with section 5. There is nothing therein which shows that the court considered that malice was the gist of the action. In order to arrive at a decision that malice is the gist of the action, it has been necessary to go back to the pleadings. In my opinion, the clerk of the municipal court was not authorized to issue a capias ad satisfaciendum, and that court should have granted the motion of defendant to quash the capias ad satisfaciendum.


text:
    Otto Kretschmar and Bruno Kretschmar, Plaintiffs, Appellees, v. Goven, Eddins and Company and Julius I. Mandel, Defendants, Appellants. Louis Rix et al., Defendants, Appellees. Goven, Eddins and Company, Counter Claimants, Appellants, v. Julius I. Mandel et al., Defendants, Appellees. Otto Kretschmar and Bruno Kretschmar, Plaintiffs, Appellees. Julius I. Mandel, Counter Claimant, Appellant, v. Goven, Eddins and Company, Defendants, Appellees. Otto Kretschmar and Bruno Kretschmar, Plaintiffs, Appellees.
    Gen. No. 40,335.

      Original opinion filed April 26, 1939.
    Rehearing opinion filed June 21, 1939.
    Ben Copple, of Chicago, for certain appellant.
    Swanson & Dodge, of Chicago, for certain other appellant; Ben Copple and Eugene Dornbaugh, of Chicago, of counsel.
    Harry A. Biossat, of Chicago, for appellees.
   Mr. Justice Burke

delivered the oninion of the court.

On February 8, 1937, plaintiffs filed their amended complaint in chancery to recover possession of certificates of deposit and mortgage bond certificates of beneficial interest in real estate, which they asserted were delivered to defendants as agents for plaintiffs for the purpose of transfer and not for sale. Defendant corporation filed an answer and counterclaim. It admitted possession of certain of the securities, declaring that it purchased them from the defendant Julius I. Mandel for a valuable consideration without notice of claims of plaintiffs. It prayed that it be decreed to be the owners of the securities. Defendant Mandel filed an answer and counterclaim in which he said he purchased certain of the securities for a valuable consideration from one Louis Six, and that he did not have notice of the rights of the plaintiffs. The case was referred to a master, who reported in favor of plaintiffs’ contentions. Objections before the master were allowed to stand as exceptions. The exceptions were overruled and a decree entered finding that the plaintiffs were the owners of the securities and that the defendants were not bona fide purchasers thereof. From the decree, the corporation and the individual, Julius I. Mandel, prosecute this appeal.

Plaintiffs are residents of North Dakota. They owned certain certificates of deposit and certificates of beneficial interest. Since the depression, it has been the custom in Chicago that when bonds secured by trust deeds on real estate went into default, bondholders protective committees were organized and they requested the holders of the bonds to deposit their bonds with the depositaries. Receipts were thereupon issued to the bondholders, indicating that the bonds had been deposited. When the property has been reorganized through foreclosure proceedings, title is generally taken in the name of an individual who is the trustee for the depositing bondholders, or in the name of a corporation. When the title is taken in the name of a corporation, stock certificates are issued to the depositing bondholders. When the title is taken in the name of a trustee, certificates of beneficial interest are issued to the depositing bondholders. Sometimes, a voting trust for corporate stock is also set up. The certificates owned by plaintiffs are printed in the usual form and are similar to stock certificates. Both parties cite section 7 of the Uniform Stock Transfer Act (sec. 422, ch. 32, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 32.201]), which reads as follows :

“If the indorsement or delivery of a certificate

“ (a) was procured by fraud or duress, or

“(b) was made under such mistake as to make the indorsement or delivery inequitable; or

“If the delivery of a certificate was made

“(c) without authority from the owner, or

“ (d) after the owner’s death or legal incapacity, the possession of the certificate may be reclaimed and the transfer thereof rescinded, unless:

“ (1) The certificate has been transferred to a purchaser for value in good faith without notice of any facts making the transfer wrongful, or

“(2) The injured person has elected to waive the injury, or has been guilty of laches in endeavoring to enforce his rights.

“Any court of appropriate jurisdiction may enforce specifically such right to reclaim the possession of the certificate or to rescind the transfer thereof and, pending litigation, may enjoin the further transfer of the certificate or impound it.” Defendants cite section 11 of the same act (sec. 426, ch. 32, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 32.205]), which reads as follows:

“A person who for value transfers a certificate, including one who assigns for value a claim secured by a certificate, unless a contrary intention appears, warrants—

“ (a) That the certificate is genuine.

“(b) That he has a legal right to transfer it, and

“(c) That he has no knowledge of any fact which would impair the validity of the certificate.

“In the case of an assignment of a claim secured by a certificate, the liability of the assignor upon such warranty shall not exceed the amount of the claim. ’ ’

Defendant Julius I. Handel is a physician with offices at 4803 Lincoln avenue, Chicago. That district is known as Lincoln Square. Goven, Eddins & Company is a corporation engaged in the investment securities business with offices at 11 South La Salle street, Chicago. It bought and sold certificates of deposit and certificates of beneficial interest. It was stipulated that on or about September 2, 1936, plaintiffs were the owners of certain certificates of beneficial interest and certificates of deposit; that on the reverse side thereof the certificates bore assignment forms; that plaintiffs signed the assignment blanks without filling in the name of the assignee and delivered the certificates so assigned to “Frank Clayton or to some other person.” It was further stipulated that the delivery to said defendant Frank Clayton or the said other party was only for the purpose of transferring said certificates, and that the said defendant or the said other person was not authorized in any way by either of the plaintiffs to make any sale of same to any other person. The stipulation applied only to the certificates of deposit and of beneficial interest received in evidence.

An assistant secretary of the Chicago Title & Trust Company testified that no Frank Clayton was ever employed by that concern, and that the form of receipt shown to him, the witness, was not used by the Chicago Title & Trust Company. An attorney for the Chicago Title & Trust Company testified that the card and receipt last mentioned were received by mail from the “plaintiff in this case.” The receipt purports to be an official receipt by the Chicago Title & Trust Company, per Frank Clayton, and the printed card reads: “Frank Clayton, Chicago Title & Trust Company, 60 West Washington Street, Chicago.” Plaintiffs did not testify. Except for the statement that the receipt and card were received in a letter, there is nothing to show the materiality of these two exhibits. We presume the inference that the court was expected to draw from the exhibits was that the person who obtained the securities from plaintiffs, used faked documents in order to impose on plaintiffs. There is nothing in the record which would justify that inference. A reasonable inference, however, is that plaintiffs dealt with a swindler who gave his name as Frank Clayton. It may be that the person who gave his name as Frank Clayton was the same person hereafter referred to as Louis Eix. The admission of the fictitious card and receipt, however, was harmless, as the record otherwise clearly shows that plaintiffs delivered the securities because of a fraud perpetrated on them. It is stipulated that the securities were delivered for the purpose of being transferred, and that the person to whom they were delivered was not authorized to sell.

Defendant Julius I. Handel testified that Louis Eix had been a patient of his for about 15 years, and that his last known address was the Sheridan Plaza Hotel in Chicago; that he also treated Sarah Eix, the wife of Louis Eix, on several occasions, and that Sarah Eix lived around 700 York Place in Chicago; that they had one child; that he called on them many times and had a record of the calls. He stated that he received the certificates from Louis Rix around September 1, 1936; that Rix said to him: “I owe you some money, if you will buy these certificates I need $750 cash. I have got to have money right away. I will sell you these certificates and you can sell them and what you get over, above and outside of $750 will be yours.” Witness stated that he had the certificates at that time; that he looked at them and saw what name they were made out to and that they were properly indorsed; that he did not know where he got them, and that he did not ask him how he got them; that he didn’t ask anything about what the certificates were except just what he saw, and that he told him he would let him have $750. Witness further testified as follows:

“I didn’t know anything about the securities when I was talking to him. I called up Coven, Eddins and found out at the same time. I had transactions with Coven, Eddins & Company before that. I do not know how long, several years perhaps off and on. I never saw these certificates before Mr. Rix produced them. I never had any transactions with these certificates. At that time I gave Mr. Rix some cash — the difference between $644 and $750. Something like $106. I took $106 out of my pocket. I did not know he was coming in at that time.” Witness further stated that Rix did not give him a receipt for the money; that he gave Rix a receipt in full for the amount of money Rix owed him for services as a physician; that Mandel did not ask Rix where he got the certificates, and he did not make any investigation to ascertain where they came from. Mandel stated that he tried to locate Rix at the Plaza Hotel, but that he was not there, nor could he locate Mrs. Rix. He stated that he had had other transactions with the security house, that the other transactions were some time previous, “perhaps a year or two or three”; that he did not remember the kind of securities involved in the other transaction. At another time, Mandel testified that he called the security house after he agreed to pay Rix $750; that he sent the securities downtown by messenger, and that Rix waited in his office until the check was brought back. The check in the sum of $644.94 was made out to ‘ ‘ Julius I. Mandell. ” The check was indorsed by him and cashed by the Lincoln Square Realty & Investment Company, who operate a currency exchange in the building where he had his office. Mandel stated that he had not seen Rix since he turned over the cash to him.

In response to a subpoena, Dr. Mandel brought in his book of accounts, which was in loose leaf form. He testified that he wrote part of it and that “the girl wrote the balance.” He stated that the entries were made at the time of the transactions. The book was taken by the attorneys for plaintiffs for the purpose of having photostatic copies made. Recalled for cross-examination, Mandel testified that in May, 1936, he sold to Goven, Eddins & Company the securities on the Irving and Mayflower Hotels. He stated that the securities were given to him by Rix, and that in that transaction he acted as the agent for Rix. Obviously, the securities sold by Mandel in May, 1936, could not have been any of the securities out of which plaintiffs were swindled in September, 1936. Mandel stated that for the securities sold by him as agent, he received a cheek and turned part of the proceeds over to Louis Rix; that he kept $50 on account of his bill and $100 that he had loaned Rix two days before. As to the securities disposed of in May, Mandel stated that Rix came to him one night and said he was leaving town and needed $100, and that he had some securities in his pocket which he wanted Mandel to dispose of while he was away; that when he returned he was to return to Mandel the $100 he had advanced Rix and $50 to apply on his bill, which Rix did, and that Mandel gave Rix $100 and he gave Mandel the bonds. Witness stated that Bix told him to dispose of the securities through Goven, Eddins & Company, and that the witness did not have any prior transactions with that security house.

Karl E. Hultenschmidt testified that he had been a clerk at the Sheridan Plaza Hotel from July 26, 1936 ; that he examined the records of the hotel for August and September, 1936, and that he did not find any registration of Louis Bix; that he did not know Louis Bix and had never heard his name, and that he did not recall that he ever registered at the hotel.

Charles E. Mitchell of the Lincoln Square Bealty & Investment Company testified that he knew Dr. Mandel for five years; that he cashed a check for Dr. Mandel on September 4,1936, and delivered the cash to him.

Alexander E. Bix testified that he was secretary of the Lincoln Square Bealty & Investment Company ; that he knew Dr. Mandel for four years; that he never went by the name of Louis Bix and that he had a brother named Louis Bix who resides in Emporia, Kansas.

Louis A. Bix testified that he had a wife named Catherine; that he never had any transactions with Dr. Mandel, and that he never lived at the Sheridan Plaza Hotel or on York place, and that he was never a patient of Dr. Mandel.

The testimony of the last two witnesses is of a negative character and does not aid in the decision of the case. At most, it will only give rise to speculation that because of hearing the name Bix, the thought came into Dr. Mandel’s mind to use that name. Such inference is not warranted by the record and will be disregarded.

John B. Eddins testified that he was the vice president and treasurer of Goven, Eddins & Company. He identified the check issued on September 4, 1936. He stated that prior to issuing the check he had a conversation with Dr. Mandel on the telephone and that Dr. Mandel sold him some certificates of deposit for McCarthy Fireproof Warehouse and some certificates of beneficial interest in the Park Shore Properties Liquidation Trust. Attached to each certificate offered in evidence is an authorization in blank for the transfer of securities. The authorization concludes with the words: “In releasing the securities as above described, you may consider this letter your authority for transferring them from my name, and furthermore, that you will in no wise be held responsible for their return to me.” The authorization blanks are signed by plaintiffs according to their interest. The purchase price for the two securities sold on September 4, 1936, was $450 for the McCarthy Fireproof Warehouse and $194.94 for the Park Shore. Witness stated that he directed a young lady in the office to make out the check; that he had a record of a prior transaction with Dr. Mandel on May 28, 1936, when he purchased from Dr. Mandel the Mayflower first mortgage certificates and Irving Hotel certificates. On being recalled, witness testified that the three additional securities involved herein were received on September 5, 1936, and that Dr. Mandel sent them down by messenger; that no payment was made for the last three securities. The last three securities are indorsed by plaintiffs in blank and are accompanied by an authorization similar to the one heretofore mentioned. Here it is interesting to observe that two securities were delivered and the check turned over to Dr. Mandel on September 4, 1936, and three securities were delivered to the security house on September 5,1936. Eddins further testified that in the afternoon of September 4, 1936, he had a call from the Lincoln Square Realty & Investment Company, and that he was asked if he had issued a check to Dr. Mandel, and he stated that he had. Witness stated that the following morning Dr. Mandel called and stated that he had some more securities, naming them, and asked what price would be paid for them; that when the messenger arrived on September 5, 1936, with the securities, he called up the Chicago Title & Trust Company and asked if any ‘ ‘ stop transfers ’ ’ were against them; that he was informed that “stop transfers” had been filed that morning against the five securities; that he gave Dr. Mandel a receipt for the three securities delivered and called the bank and asked them to stop payment on the check issued the day before to Dr. Mandel, and that subsequently the check was paid. It is manifest that Goven, Eddins & Company was required to pay the check, as the Lincoln Square Realty & Investment Company was an innocent holder in due course. Witness stated that he had had dealings with Dr. Mandel in May, 1936, and that they had been satisfactory. He stated that he had never heard of Frank Clayton or Louis Rix, and that he was the only one connected with his corporation that had any dealings with Dr. Mandel ; that he did not know who any of the former owners were except the plaintiffs, and that he did not know that some of the former deliveries or trades were for a limited purpose; that he had been in that business for 23 years; that the corporation had been in business seven years and that their principal business was dealing in certificates of deposit for real estate bonds; that they had transactions every day; that he is familiar with the usage and customs of dealers of securities of that type; that it is the custom of dealers in securities of that type where the securities are indorsed in blank, to have them transferred on the books of the transfer agent only after they are sold and that it is not possible to tell how many times a certificate in blank has been transferred. On cross-examination, witness stated that when the securities arrived, he examined them; that he did not ask Dr. Mandel anything concerning the certificates other than to identify the same, and that he did not ask Dr. Mandel how he acquired them. Witness stated that it is not the custom to have them transferred until they are finally sold to someone who wants to own them. He stated the only previous dealings he had with Dr. Handel were satisfactory; that during their seven years of business, G-oven, Eddins & Company had purchased thousands of certificates and that all certificates purchased during that time were either indorsed in blank or the accompanying power to transfer was indorsed in blank; that on receipt of certificates from people that they did not know, it was customary to require that the signature be guaranteed. He stated he had known Dr. Handel for 14 years, and that “when I purchased those certificates from a man I deal with in business and my past relationship had been satisfactory, I would not require a guarantee of signature. ’ ’

The attorney for plaintiff testified that the account book he took from the court room was turned over to Vernon Faxon. The latter testified that he is an examiner of questioned documents, commonly referred to as a handwriting expert, and that he has been in that business over 20 years and maintains a complete laboratory for such work. His qualifications were admitted. The point is made here that his testimony should be excluded because,the book was not introduced in evidence. Our examination of the record satisfies us that in view of the actions of the parties, the introduction of the book was excused. When the book was offered in evidence by plaintiffs, defendants’ counsel objected because it was not material and that putting the book in evidence would interfere with the doctor’s business. Counsel proposed that a photostatic copy be made. The proposal was accepted by attorney for plaintiffs, who agreed to have photostatic copies made in three days so that the book could be returned. Witness stated that he examined the book and the account of Louis Rix, and that he formed the opinion that three people made most of the entries; that he examined every account in the book and that three different people made entries excluding the Louis Rix account; that “the Louis Rix account was the only account opened in the book by the person who opened the book,” and that there were several other accounts opened on the same day, February 2, 1936. Hence, it appears that the book purported to show that the Louis Bix account was opened on February 2,1936. Witness further testified as follows: ‘ ‘ The Bix account was not made by the same person who made the other entries on that same date. It was the only account in the book that contained the handwriting of the person who opened the Bix account. All other entries made on that date, the 2nd of February, were written in the same handwriting with this one exception. I went clear through the book and that page was the only one on which I found the handwriting of that person. I examined the paper of the book and found that the first entries, along in 1928, 1930 and 19311 think it was, were written on 1 watermarked Hammermill Bond ledger paper. ’ Then, 1930, 1931 and up to 1936, including the fore part of 1936, it was on ‘De Luxe ledger paper,’ which continued to August, 1936. Then, in September, 1936, all the pages were Hammermill but of a different mark. The main difference was ‘made in U. S. A.,’ printed in the upper left hand corner. This did not appear on the old Hammermill. This paper did not appear in the ledger prior to September, 1936, with the exception of the Bix account, which was on that Hammermill paper that did not appear in the ledger prior to September, 1936. I went through every account in that ledger. All entries prior to September, 1936, were on this De Luxe paper with the exception of two or three accounts which were on the Hammermill, which I mentioned. All entries subsequent to September, 1936, were on this Hammermill ‘made in U. S. A.’ There is no similarity in the new and old paper. This ‘made in U. S. A.’ was put out during the NBA in about 1932 or somewhere along there. From this examination I formed a very general opinion as to when the entries in the Louis Bix account were made.” Over objection witness stated that “In my opinion, although the first entry is dated February 2, 1936, it was not physically opened in the ledger until after August, 1936. I cannot say how long afterwards but I am positive it was not made until after August and it was not opened on the date that it purports to have been opened. ’ ’

Defendants argue that the opinion of the witness last quoted was not admissible, as invading the province of the court. Disregarding the quoted opinion, there was sufficient in the testimony to justify the chancellor in concluding that the sheet in the account book showing an account opened by Louis Bix on February 2, 1936, was not in fact written and inserted in the book until August, 1936, or later.

Herman Wollenberger testified that he is an investment broker and president of Wollenberger & Company, which concern is mentioned in some of the certificates ; that on the Friday before Labor Day in 1936, he saw the certificates which were introduced in evidence by plaintiffs, and that they were then in the possession of a man who said his name was “Louis Bix.” On cross-examination he stated that the man did not spell his name and that “it might have been Bix.”

Emmit F. Morrison, on behalf of plaintiffs, testified that he is employed by A. B. Frank & Company, brokers; that he is familiar with the custom in the brokerage business about receiving certificates indorsed in blank. He stated that ‘ Our custom is that if securities are delivered by an individual for his account or in his name, we accept it for his credit or for payment, but if the securities are for another’s account, not in the name of the individual, if they are sold, we make the check payable the way the certificate reads and not for the party who sold it. That is the custom of A. B. Frank & Co. I would say that is the custom among brokers in general although I only worked for one firm. The custom among brokers generally is the custom I have given. If the stock certificate is endorsed in blank and we don’t know that person or his signature, and if there is a witness and we don’t know his signature, and if the certificate is presented by a person other than the witness, or other than the person to whom the certificate is made, we would require the signature be guaranteed. We would not guarantee the signature if we did not know the person. It would not make any difference if it was accompanied by a blank in the form of Plaintiff’s Exhibit 2-A of January 26, 1937.” On cross-examination, he stated that the concern with which he was connected is a New York stock exchange house and that they do not deal in certificates on real estate bonds. He stated, however, that they have had transactions involving certificates of deposit for bonds.

W. M. Herbster testified for plaintiff and stated that he did not know whether there was a custom in Chicago, but that there is a custom in his firm. In answer to a hypothetical question, he stated that if a customer that he had known for 14 years and with whom he had previous satisfactory dealings, brought in securities accompanied by a letter of transmittal, the customer not being named in the securities and the securities being indorsed in blank, that he would not pay the customer but would make the check out to the party named in the certificate.

Frank J. Kelly testified that he is a cashier for a concern doing a brokerage business and also dealing in general and unlisted securities. He stated that “If a certificate of beneficial interest or stock certificate is endorsed in blank and is brought in by a customer and I do not know the person to whom it is made out, and I do not know his signature nor the name of the witness other than that which is appended, I would have to know the party who brought it in. I would then sell it for his account if he had any kind of a letter of identification. If I did not know the person in the certificates or his signature, or the signature of the witness, the cheek would be made out to the party mentioned in the certificate unless we knew the party who brought it in and had a letter of authorization to pay it, with reference to that particular certificate.” On cross-examination, he stated that if they knew the customer that brought in the securities and had had satisfactory dealings with him in the past and he produced certificates in blank with a letter such as accompanies the certificates in evidence, ordinarily the certificates would be accepted.

John W. Bissell, on behalf of defendant corporation, testified that he is president of a concern dealing in unlisted securities, particularly real estate, stating that securities of that type are generally assigned in blank when bought by a dealer or broker; that when the dealer buys such securities, he generally has them transferred to himself or to a nominee, and that when he sells them he delivers them in blank. In answer to a hypothetical question, he stated that there was no custom in Chicago among dealers of real estate securities with reference to the acceptance of certificates indorsed similar to the ones in evidence.

Walter Leahy testified that he has been in the unlisted brokerage business for eight years and deals primarily in real estate securities; that they deal in about $100,000 worth of real estate securities • per month; that he is familiar with the customs, usages and rules with reference to the purchase and sale of securities of this type in Chicago; that such securities are ordinarily assigned in blank when purchased by a broker or dealer; that they carry them in blank and deliver them in blank when they are resold. In answer to a hypothetical question, he stated that there is a custom to accept such securities indorsed in blank without requiring the signature to be guaranteed. On cross-examination, he stated that “If I had a previous deal with someone and he called me for a price on other securities and after giving the price he sent his messenger with the securities, which were not in the name of the person I talked to, and he did not come in himself and no further conversation was had, I would issue a check payable to the person I talked to without inquiring as to how he obtained them, or about the endorsement, or the witness, or the financial responsibility of the person to whom I talked.” He stated on cross-examination that if the man were a professional man whom he had known for 14 years, he would make the deal.

It is manifest that the certificates were procured through fraud by Clayton or some other person. The question arises as to whether the certificates were transferred for value in good faith without notice of any facts making the transfer wrongful. We shall first consider the evidence as it applies to Dr. Handel. He is not a broker or a dealer in securities. He is a physician. He testified that he had prior transactions with the security house, one, two or three years before, and that he then did not know what kind of securities were involved. It was established that the prior transaction consisted of the sale of two securities on May 28, 1938. He later admitted that in that transaction, he acted as agent for Louis Bix. The period of time elapsing between the two transactions was only three months and one week. The chancellor had a right to conclude that the witness would not forget a transaction which was out of the line of his profession, and to consider that circumstance in determining his credibility. When the witness was required to bring in the account book, which was of the loose leaf type, it was taken to the handwriting expert who carefully examined it. Dr. Handel stated that all the entries in the account book were made approximately at the time of the transaction. The account of Louis Bix purports to have been opened on September 2, 1936. The expert stated that the Bix account was not made by the same person who made any of the other entries on the same day. Several accounts were opened on February 2,1936, and the Bix account was not made by the same person who made the other entries on that date. It was the only account in the book that contained the handwriting of the person who opened the Rix account. All the entries made on February 2, 1936, were written in the same handwriting with the one exception. He determined that the first entries in the book were written on watermarked “Hammermill Bond” ledger paper. Then up to the fore part of 1936, the entries were made on “De Luxe” ledger paper and the use of the latter paper continued to August, 1936. In September, 1936, all the pages were Hammermill Bond with a different watermark. The main difference was that the words “made in U. S. A.” were printed in the upper left hand corner. These words did not appear on the old Hammermill paper. The new Hammermill paper with the words “made in U. S. A.” did not appear in the ledger prior to February 2, 1936, with the exception of the Rix account. The Rix account was on the new Hammermill paper. From the testimony of the handwriting expert, the master and the chancellor had a right to conclude that the entry of February 2,1936, covering the “Louis Rix” account was made and inserted in September, 1936, or thereafter. The court had a right to decide that the entry was not made in due course of business, but that it was made for the purpose of supporting the transactions involving the certificates. We are satisfied that the evidence shows that Dr. Handel was not a purchaser for value in good faith without notice of any facts making the transfer wrongful. Other portions of the testimony of Dr. Handel are unreasonable. The master saw the witnesses and the record fully justifies his finding that Dr. Handel was not an innocent purchaser.

The evidence as to the corporate defendant shows that it is engaged in the business of buying and selling securities of the type in evidence; that it purchased similar securities from Dr. Handel in Hay, 1936, and that the transaction wag satisfactory; that when Dr. Mandel proposed to sell other securities on September 4, 1936, it had no reason to be suspicious of the transaction, and that accordingly it purchased certificates on that date and delivered its check; that other certificates were delivered on the following day by the messenger of Dr. Mandel, and that it had no reason to be suspicious on that date; that on calling up the depositary it was informed that a stop order had been placed that morning, affecting the transfers of September 4 and 5, 1936, whereupon it stopped payment of the check which had been given to Dr. Mandel on September 4, 1936.

In McCarthy v. Crawford, 238 Ill. 38, the court quoted with approval from McNeil v. Tenth Nat. Bank, 46 N. Y. 325, as follows:

“It must be conceded that as a general rule, applicable to property other than negotiable security, the vendor or pledgor can convey no greater right or title than he has. But this is a truism predicable of a simple transfer from one party to another where no other element intervenes. It does not interfere with the well established principle that where the true owner holds out another, or allows him to appear, as the owner of or as having full power of disposition over the property, and innocent third parties are thus led into dealing with such apparent owner, they will be protected. Their rights in such cases do not depend upon the actual title or authority of the party with whom they deal directly, but are derived from the act of the real owner, which precludes him from disputing, as against them, the existence of the title or power which, through negligence or mistaken confidence, he caused or allowed to appear to be vested in the party making the conveyance. ’ ’ The court said further:

‘ ‘ The law has been generally established that as between the parties the transfer of stock by delivery of the certificate, with power of attorney or endorsed in blank, passes title without transfer on the books of the company, even when the by-laws of the company provide to the contrary. (Otis v. Gardner, 105 Ill. 436; Rice v. Gilbert, 173 id. 348.) Such blank transfer on the back of the certificate, to which the holder has affixed his name, is a good assignment and the party to whom it is delivered is authorized to fill it up. It may be filled up with the name of a remote transferee, and the name to be inserted concerns only the purchaser. (McNeil v. Tenth Nat. Bank, 46 N. Y. 325; Johnston v. Laflin, 103 U. S. 800; White v. Vermont and Massachusetts Railroad Co., 21 How. 575.) The form in which the certificate was issued, the usage and practice indicated thereby as to the method of assignment, the appellee’s own act in signing the power of attorney, all correspond with the customary rules with reference to the assignment of similar documents. Though this is not a certificate of stock, it is manifest that it was intended to be assigned in the same manner, and no reason is seen why it may not be so done and with the same effect.

“By signing the transfer and power of attorney in blank, from whatever motive, and delivering the certificate so endorsed to "Whipple & Co., the appellee clothed them with the customary indicia of absolute ownership. He had done all that was necessary for him to do, — all that was possible for him to do to indicate to all persons interested that they owned the certificate. With the transfer on the books of the company he had nothing to do. It did not concern him. Its object was the protection and convenience of the assignee or the receivers. Appellee by this positive act enabled Whipple & Co. to deceive appellant, as they could not otherwise have done, to induce him to believe they were the owners of the stock and to sell the stock to him. The certificate not being negotiable paper was subject in the hands of appellant to all the equities existing against the certificate itself, — to all equities against the original holder or in favor of the maker; but appellee could set up no equities against appellant, because by Ms writing he had estopped himself from claiming that Whipple & Co. were not his assignees for value.”

We are of the opinion that Goven, Eddins & Company received the certificates for value in good faith without notice of any facts making the transfer wrongful. Having so decided, it is not necessary for us to pass on the matter of custom. An examination of the record, however, convinces us that the manifest weight of the evidence is that under the circumstances disclosed, there was no custom requiring defendant corporation to inquire as to previous transactions. The officer of the company had known Dr. Handel for 14 years and the corporation had had a satisfactory transaction of the same kind three months previous.

For the reasons stated, the decree of the superior court of Cook county is reversed and the cause remanded with directions that a decree be entered adjudicating Goven, Eddins & Company, a corporation, to be the owner of all the securities offered in evidence and described in its counterclaim, directing the CMcago Title & Trust Company, as depositary, and the Chicago City Bank & Trust Company, as trustee, to transfer title to said securities to Goven, Eddins & Company, and directing that the purchase price (now in possession of Goven, Eddins & Company) for the three securities delivered on September 5, 1936, be delivered to plaintiffs according to their interest, and that the court enter a judgment in favor of plaintiffs, according to their interest, and against defendant Dr. .Julius I. Handel in the sum of $644.94 and costs.

Reversed and remanded with directions.

Denis E. Sullivan, P. J., and Hebel, J., concur.

On Rehearing.

On rehearing, the last paragraph of the opinion heretofore filed is modified so as to read as follows: For the reasons stated, the decree of the superior court of Cook county is reversed and the cause remanded with directions that a decree be entered adjudicating G-oven, Eddins & Company, a corporation, to be the owner of all the securities offered in evidence and described in its counterclaim, directing the Chicago Title & Trust Company, as depositary, and the Chicago City Bank & Trust Company, as trustee, to transfer title to said securities to Goven, Eddins & Company, and directing that the purchase price (now in possession of Goven, Eddins & Company) for the three securities delivered on September 5, 1936, to be delivered to plaintiffs according to their interests, and that the court find that a tort was committed by defendant Dr. Julius I. Handel, and that malice is the gist of the action against Dr. Julius I. Handel, and that the court enter a judgment in tort in favor of plaintiffs, according to their interests and against defendant Dr. Julius I. Handel for the sum of $644.94 and costs.

Reversed and remanded with directions.

Denis E. Sullivan, P. J., and Hebel, J., concur.