author: Mr. Justice Dady

text:
    Otis E. Blair, Administrator of Estate of Mary Kirchner, Deceased, Appellant, v. Frank Kirchner and Mae Kirchner, Appellees.
    Gen. No. 9,383.
    Opinion filed May 27, 1943.

      C. G. Colburn, of Virginia, Ill., for appellant.
    R. L. Northcutt, of Beardstown, for appellees.
   Mr. Justice Dady

delivered the opinion of the court.

Plaintiff, as administrator of the estate of Mary Kirchner, deceased, filed a petition in the county court of Cass county for a citation against the defendants, Frank Kirchner and Mae Kirchner, to recover from them the possession of certain United States Postal Savings Certificates in the principal amount of $2,200 alleged in said petition to belong to the estate, which certificates defendants claimed to own by a gift causa mortis thereof.

It was stipulated on the trial that the certificates were delivered under such circumstances as to constitute a valid and complete gift causa mortis provided that such certificates could be made the subject of a gift causa mortis. The certificates were manually de- . livered without indorsement.

The county court ordered that the certificates be delivered to the plaintiff. On appeal the circuit court found the defendants to be the owners of the certificates and dismissed the petition. Plaintiff has perfected this appeal.

The only question for us to decide is whether the certificates which were given to the defendants by the decedent could be the subject, of a gift causa mortis.

The certificates, issued in 1937 and 1938, each bore the name of the decedent as depositor and, so far as is material, had on the face thereof the following language :

“Not Transferable
Not Negotiable
This certifies that the sum of-Hundred Dollars has been deposited with the Postal Sav- . ings System and will be payable to the Depositor at the above named Depository Office with: interest at the rate of two per cent per annum payable annually on the presentation of this certificate properly indorsed.”

Plaintiff contends such certificates constituted a contract exclusively between the Government, and the decedent as the depositor named in the certificates, and that defendants could not acquire the depositor’s rights to secure payment from the Government because the certificates themselves provided that they were not transferable and not negotiable.

As a general rule, every species of personal property capable of delivery, either constructive or actual, may be the subject of a gift causa mortis (28 C. J. page 696, par. 114). It is generally recognized that choses in action, including negotiable notes, may be the subject of a valid gift, without indorsement or assignment (Rothwell v. Taylor, 303 Ill. 226; Simpson v. Heberlein, 259 Ill. App. 579). The rule applies equally to non-negotiable choses in action, and to such nonnegotiable choses in action as a savings bank book (In re Estates of Antkowski, 286 Ill. App. 184; Chicago Savings Bank & Trust Co. v. Cohn, 197 Ill. App. 326), unindorsed stock certificates which state on their face they are transferable only on the books of the corporation (Herbert v. Simson, 220 Mass. 480, 108 N. E. 65), and an insurance policy (Shannahan v. Shannahan, 127 Fla. 718, 173 So. 902).

The fact that a promissory note has on its face the words “This note is not negotiable,” does not prevent the note being assigned. In such a case the assignees may recover on the indebtedness, subject to equities between the maker and payee (See Prins v. South Branch Lumber Co., 20 Ill. App. 236).

We do not consider that the fact that the postal certificates in question were non-negotiahle by their terms interfered in any way with their being, made the subject of a valid gift.

The next question is whether the use of the words “not transferable” places the certificates out of the class of personal property which may be the proper subject of a gift causa mortis by delivery.

We have not been referred to any Illinois case in which the court has considered the effect of the words “not transferable” upon the rights of a donee of postal savings certificates. However, in the case of Weber v. Rosenheim, 37 Ill. App. 72, the court had before it a note with the words “This note is not transferable” written on the back of the note. Suit was brought by an assignee for value and the defense was made that the note could not be assigned. The court held that the assignee might sue thereon and that the effect of the words was merely to subject the assignee to any equities existing between the original parties. Although this case involved an assignment for value and not a gift, we see no distinction in the result. From the ruling in such case the legal meaning of the words “not transferable” would appear to be the same as the words “not negotiable,” and, as we have already stated, the owner of a non-negotiable chose in action may transfer his title by way of gift by delivery alone.

We do not think that the situation in the case at bar differs in principle from that presented by a gift of stock certificates which provide on their face that no transfer of the certificates shall be effective unless registered on the books of the company. In this situation it has been held that as between the parties a gift may be made of such certificates by delivery and be effective irrespective of the provision as to transfer contained in the certificate. (Talbot v. Talbot, 32 R. I. 72, 78 Atl. 535; Herbert v. Simson, supra.) An inter vivos gift of corporate stock by delivery without indorsement or assignment of the certificates was upheld in In re Estates of Antkowski, supra, although under the express provisions of the Uniform Stock Transfer Act (Ill. Rev. Stat. 1941, ch. 32, par. 416-439 [Jones Ill. Stats. Ann. 32.195-32.219]) title to certificates and the shares represented thereby can be transferred only in the manner indicated, and the act contains no provision for the transfer of title by delivery only.

There are cases from other jurisdictions in which the courts have considered the precise question before us and have held that postal savings certificates may be the subject of a valid gift by delivery.

In the case of Williams v. Letton, 228 Ky. 371, 15 S. W. (2d) 296, certain postal savings certificates had been delivered as a gift causa mortis and in upholding such a gift the court said “Under the modern rule, any chose in action which creates a liability against a third person, and which is held by the donor and is his property, either legal or equitable, is the subject of a valid gift causa mortis by mere delivery. (28 C. J. 699; Stephenson’s Adm’r. v. King, 81 Ky. Law Rep. 330), and we perceive no reason why the rule does not apply to postal savings certificates.”

A similar gift was upheld in Dietzen v. American Trust & Banking Co., 175 Tenn. 49, 131 S. W. (2d) 69, and it was that court’s conclusion that no federal statute or regulation placed any prohibition upon the transfer by gift causa mortis of postal savings certificates.

The same question was considered by the court in In re Diskin’s Estate, 105 Pa. Sup. 519, 161 Atl. 893, in connection with a gift inter vivos and in upholding the validity of such a gift the court said: “True the certificates were marked ‘non-negotiable — nontransferable,’ but these restrictions imposed by the government did not affect the title, or right of possession, or validity of the transfer. ... If the donee was confronted by any difficulty in receiving the cash value of the certificates, that was a matter to be solved by Mrs. Bundshuh (the donee). She was entitled to whatever value they possessed in her hands. (Basket v. Hassell, 107 U. S. 602)”

The case chiefly relied on by plaintiff to defeat the gift made to defendants is In re Estate of Wallace, 266 Ill. App. 500. In that case the court held that the United States Treasury Certificates there involved could not be the subject of a gift inter vivos. Such treasury certificates contained the wording ‘ This certificate is not transferable,” followed by this language “and is payable only to- the owner except in case of death or disability of such owner and in such case is payable as provided in regulations prescribed by the Secretary of Treasury.” In arriving at the conclusion that such certificates could not be made the subject of a gift, the court considered a number of cases in which it was held that the Government had the right to limit its obligation to pay only the person named in the certificate upon compliance with the provisions stated in such certificate and the regulations adopted by the Secretary of the Treasury. In none of the cases there cited was any question raised as to the validity of a gift of treasury certificates between a donor and donee. We do not think that the question of the right of the Government to enforce such provisions and regulations as to payment is before us in the present case where the controversy is between the immediate parties to the gift, or their representatives, and no attempt is being made to enforce the gift as against the Government. In this connection we believe that the statement made by the court in In re Diskin’s Estate, supra, is applicable that “if the donee was confronted by any difficulty in receiving the cash value of the certificates that was a matter to be solved by the donee.”

By stipulation the judge of the circuit court wrote the Postmaster General asking the following two questions :

“1. Does the Division of Postal Savings System recognize a gift causa mortis oí postal savings certificates 1 "
“2. If a valid gift causa mortis of postal savings certificates is established will the Division of Federal Savings System pay the amount represented by the certificates1 to the donee of the same?”

In reply the Postmaster General wrote such judge that the Department would

“Recognize a decree of judicial determination issued out of a court of competent jurisdiction, adjudicating the funds represented by the postal savings certificates of a deceased depositor to be a gift causa mortis, provided ... no appeal therefrom has been taken and that the time for taking such an appeal has expired. (39 USCA 767.) In the absence of such a decree the funds on deposit in a postal savings account, as a part of the assets of the depositor’s estate, may be disposed of in the same manner as any other assets of an estate.

‘ ‘ On the receipt in this office of a duly authenticated copy of the decree of judicial determination, payment of the postal savings account may be authorized to the donee named therein.”

By stipulation the answer of the Postmaster General was received and considered by the trial court as evidence.

We have examined the federal statute applying to postal savings and the Postal Laws and Regulations and both the statute and the Regulations contain this provision:

“The final judgment, order, or decree of any court of competent jurisdiction adjudicating any right or interest in the credit of any sums deposited by any person with a postal savings depository if the same shall not have been appealed from and the time for appeal has expired shall, ... be accepted and pursued by the Board of Trustees as conclusive of the title, right, interest, or possession so adjudicated, and any payment of said sum in accordance' with such order, judgment, or decree shall operate as a full and complete discharge of the United States from the claim or demand of any person or persons to the same.” ' (39 USCA, ch. 20, sec. 767; Postal Laws and Regulations, 1940, par. 1624.)

From the foregoing it appears that the federal statute and the postal regulations affecting postal certificates, do not present any bar to the eventual recovery by the defendants on the certificates given to them by the decedent.

It is our opinion the certificates were the proper subject of a gift causa mortis. The judgment of the circuit court in upholding such gift is accordingly affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Hayes

license: Public Domain

text:
    Manzie Shorthose, Appellee, v. Park Shorthose, Appellant.
    Gen. No. 9,377.
    Opinion filed May 27, 1943.
    William R. Bach and William J. Bach, of Bloomington, for appellant.
    Homer English, of Bloomington, for appellee.
   Mr. Justice Hayes

delivered the opinion of the court.

The plaintiff, Manzie Shorthose, obtained a divorce from the defendant Park Shorthose, in the circuit court of McLean county, on the ground of habitual drunkenness for a period of two years prior to the filing of this suit. They were first married on January 3,1923, and lived in California until 1936.

The plaintiff filed a suit for annulment of their marriage in a California court in 1935, and for a short, period thereafter they occupied different rooms but lived in the same house. They then became reconciled and the suit was dismissed. In January 1936 defendant’s father died and defendant inherited two' farms located near Danvers, Illinois, and some other property. Shortly after 1936 they moved back to Illinois and lived on one of the farms.

It appears that defendant had been married before and obtained an interlocutory decree of divorce from his first wife in Los Angeles on May 12, 1921, and a final decree of divorce on this first marriage on October 30,1931. Defendant states that he relied upon his lawyer obtaining the final decree, but the lawyer did not attend to it. Upon learning this he secured it himself from the court in 1931. Defendant reported to plaintiff that he was divorced. Both parties acted in good faith at the time of their marriage, but under the law of California an interlocutory divorce does not effect a dissolution of the marriage relationship until the final decree of divorce is entered. A year must elapse after the interlocutory decree is entered before final decree can be entered. , Borg v. Borg, 25 Cal. App. (2d) 25, 76 P. (2d) 218. The marriage is not dissolved by the mere lapse of one year after the entry of an interlocutory. decree but is only dissolved when the final decree is entered. Estate of Dargie, 162 Cal. 51, 121 Pac. 320. The courts of Illinois take judicial notice of the laws of a sister State. In a similar situation with a similar statute in the State of Wisconsin our Supreme Court in Mosholder v. Industrial Commission, 329 Ill. 497 held the marriage void where it was performed prior to the divorce becoming final. Clearly the marriage of the plaintiff and defendant in 1923 which was performed prior to the final decree was void. About the first of January 1940 plaintiff conferred with a lawyer as to the legal status of her marriage and was advised they should be remarried as the first marriage was void. She then requested the defendant that they be remarried, which he consented to, and they were remarried on January 5, 1940. Without question this marriage was legal.

Shorthose and his wife had two children, a son Park Shorthose, Jr., aged 19 and a daughter Lorraine Short-hose, 17 years old. The plaintiff testified to the excessive drinking of the defendant over a long period of time, and she was corroborated by her two children, her two sisters and the husband of one of her sisters. On this question there is a sharp conflict between the plaintiff’s witnesses and those of the defendant. Defendant called about 20 witnesses from the vicinity in which he lived, including the men with whom he had business dealings, his neighbors, members of the American Legion whom he associated with, his farm neighbors and help that worked for him on the farm. Their testimony was to the general effect that they had never seen him drunk — and that his drinking was quite moderate. He operated a farm close to Danvers which is a small town in a rural community, where a man’s habits and conduct would be generally known. It appears that defendant never committed .an act of violence towards his wife or his children. It is a matter of common knowledge that the use of alcoholic liquors to excess is usually accompanied with violence and cruelty. It further appears that he had a strong affection for his wife and made every effort to retain her. He provided the family with reasonable support. He was always at home nights and kept up his farm work. He desired the children to attend the Danvers High School and they each wanted to go to the High School at Normal University which was further away from home. The mother sided with them, the father was overruled and the children went to Normal High.

It further appears that Mrs. Shorthose had a violent feeling against the use of alcoholic liquor. Her sisters and brother-in-law who testified in her behalf held the same feeling against the use of liquor no matter how slight.

It appears that the defendant was a truck driver in California and drove a truck many thousands of miles without an accident. He had never been arrested for being drunk or disorderly. During the time the family lived in California they had a hard time financially. When defendant’s father died, defendant had very little. Defendant, since his inheritance, had paid between two and three thousand dollars on a mortgage that was on the farm at the time he inherited it, built a new garage, sunk a well, repaired the crib and bought a power outfit of tools to work the farpa with. The Banker at Danvers testified his credit was good at the bank and that he kept his bills paid. A man who is enslaved by liquor usually drinks up his assets rather than acquire additional ones. The farmers in that vicinity had a cooperative grain elevator and elected Shorthose a director of their company.

Most of the specific instances on the question of drunkenness of the defendant referred to by plaintiff’s witnesses were prior to the valid marriage which was on January 5, 1940. Lorraine, the daughter, testified that her father had not been drinking as much as formerly. The defendant testified that he did no drinking from February 1941 to September 1941, “and that our relations did not improve” during that time.

In examining the record, if we exclude the evidence of drunkenness prior to January 5, 1940, we find there is very little evidence left to establish the charge upon which the decree was entered herein. The canse for the divorce must be based on what transpired subsequent to the marriage rather than prior to it.

Habitual drunkenness for a space of two years as a ground for divorce under our statute means an irresistible habit of getting drunk, a fixed habit of drinking to excess, such frequent indulgence to excess as to show a formed habit and inability to control the appetite. Occasional acts of drunkenness, however, do not make one an habitual drunkard, nor is it necessary that a person should be continually in an intoxicated state in order to come within the definition. Garrett v. Garrett, 252 Ill. 318; Richards v. Richards, 19 Ill. App. 465; Youngs v. Youngs, 130 Ill. 230.

Defendant testified that shortly after their remarriage he went to Hot Springs on his doctor’s advice for rheumatism. Upon returning home in February he went to embrace his wife and she said, “just leave that suit case packed as it is and get out.” He then inquired what he had done and she replied, “nothing, only that is what I want.” He further testified that since seeing her brother-in-law she asked if the farms were in her name as well as his and that he replied they were not, although perhaps they should be. When Mrs. Shorthose was asked about this occurrence on cross-examination she admitted that she asked him for a divorce on his return from Hot Springs. On the inquiry as to whether she had asked for transfer of title on the farms, she first said “she did not,” and later upon being pressed, stated, “I don’t know.”

A fair analysis of the evidence indicates that the defendant did considerable drinking; that the plaintiff had knowledge of this at the time of the remarriage in 1940; that plaintiff was actuated by her desire to legalize the marriage and have her children recognized as legitimate heirs of Shorthose, which was a proper and natural impulse for a mother. Defendant promptly granted her wish in this regard. It also appears that plaintiff is a sensitive, cultured woman, and that the use of liquor is very repulsive to her; There is not much evidence in the record to show that after the remarriage she made any effort to make it successful, while it appears that defendant went for months without touching liquor with no different results in their relationship as far as the wife was concerned. Shortly after their remarriage, and without any provocation,, she told him not to unpack his suit case but to get out, and she admits that she asked for a divorce at that time, as well as asked for title to the farms, to which she had contributed nothing towards obtaining, but which he had inherited. When he did not agree to the divorce she waited until the two years were up and then filed her case. It is apparent there is fault on both sides.

We are compelled to limit the evidence as to defendant’s habits on the use of liquor to the time subsequent to the marriage. On this we find that the manifest weight of the evidence fails to establish habitual' drunkenness for a period of two years.

For the reasons herein stated the decree of the circuit court of McLean county is reversed.

Decree reversed.


text:
    In re Estate of Fred Huston, Deceased. Jo Ann Huston, Minor, by Edith Huston, Mother and Next Friend, as Heir at Law of Fred Huston, Deceased, Appellant, v. Robert Huston, Administrator of Estate of Fred Huston, Deceased, Appellee.
    Gen. No. 9,382.
    Opinion filed May 27, 1943.
    MacDohald, Meter & Meter, of East St. Louis, for appellant.

      C. G. Colburn, of Virginia, Ill., for appellee.
   Mr. Justice Hayes

delivered the opinion of the court.

Jo Ann Huston, a minor, by Edith Huston, mother and next friend, as an heir at law of Fred Huston, deceased, who met his death in an automobile accident on August 26, 1941, filed a petition in the county court of Cass county asking for a citation against Robert Huston, administrator of the estate of Fred Huston, deceas id. Fred Huston was the father of Jo Ann. Jo Ann was about four years of age when her father died. Robert Huston, the respondent in this petition, was a nephew of Fred Huston. The facts in this record are exceedingly itíeager. Robert Huston was the only witness who testified. He was acting as administrator of the estate of Fred Huston, deceased, and defending against the petition of -the infant daughter of' the decedent who was the sole heir. It was alleged in said petition that the respondent failed to file an inventory therein, or to account for certain funds in his hands belonging to said estate. The county court ordered a citation, to issue. A hearing was had on said petition and the court entered an order dismissing the petition from which judgment an appeal was taken to the circuit court of Cass county. On a hearing de novo, the circuit court rendered an opinion "holding that the respondent proved a prima facie case of a gift inter vivos of the money in question from Fred Huston to respondent and entered judgment dismissing the appeal from the county court and assessing costs against petitioner.

It appears from the record that about the middle of June 1941 Fred Huston came to Philadelphia, Illinois and lived there with respondent until his death on August 26, 1941; that he had previously obtained a sum of money in settlement of a claim for personal injuries arising from an automobile accident in which he lost his leg and that around the first of'August 1941 there was a divorce suit filed against him in St. Louis. In July 1941, according to the testimony of respondent, decedent turned over twenty two hundred dollars to respondent by a check. About a week later respondent returned two hundred dollars of this money to Fred Huston. During the following three weeks respondent returned different sums aggregating three hundred dollars, in addition to the two hundred dollars, to decedent. Bespondent bought a house in Philadelphia, Illinois for $835 and expended the balance of $865 between the hearing in the county court and the hearing in the circuit court.

Bobert Huston testified that his uncle had given him the money by check, but he failed to produce the canceled check either in the hearing before the county court or the hearing in the circuit court. He first stated that the check was “in the neighborhood of twenty two hundred dollars,” and later in his testimony said “it was an even twenty two hundred dollars, ’ ’ and that he thought it was given to him in July but he was not positive. He fails to testify as to how he repaid this five hundred dollars to his uncle other than he gave him two hundred dollars within a week following the gift, and the balance or three hundred dollars in the interim of the gift and the death of the uncle. No receipts or canceled checks were produced by him to show these payments, neither did he make any explanation or excuse for not producing these checks. If they ever were in existence they, of course, would be in his possession or be at the bank where he could get them. At both the hearing in the county court and in the circuit court he was asked about them. When he was asked in what amounts the five hundred dollars were given he replied, “in different amounts.” When he was asked about the exact date of the several amounts after the two hundred dollars he replied, “I don’t know.” He also fails to state whether he bought the home before or after the death of his uncle. He said he used some of the balance to repair the house and when asked how much, he replied, “I don’t know.” At the hearing in the county court he still had a balance on hand, but at the hearing in the circuit court he said he had spent the balance and testified, “The judge told melt was mine so I spent it.”

He had a conversation with Edith Huston, his uncle’s wife, at his uncle’s funeral and she inquired of him how much money Fred Huston had, and the witness replied that there was some money but didn’t say how much. He failed to claim the money as his at that time on account of a gift inter vivos, but volunteered that he would help the baby when she got to High School. Immediately after the funeral Robert Huston paid the Holland Clinic $156.50 and the Smith Memorial Hospital $98.35, both being debts of Fred Huston. On the same day set for the hearing in the county court on this citation, he filed a claim covering these two payments. At this time it is reasonable to infer that respondent was treating the funds as belonging to the dead man’s estate and applied it to the payment of his debts.

It is well settled that when the claim of a gift is not asserted until after the death of the alleged donor, it is regarded with suspicion by the courts and must be sustained by clear and satisfactory evidence of every element which is requisite to constitute a gift. Estate of Williams v. Tuch, 313 Ill. App. 230; Eichin v. Eichin, 244 Ill. App. 89, 24 Am. Jur., sec. 133, page 799.

The circumstances surrounding Fred Huston at the time of the purported gift were these; he was then separated from his wife and infant child; a divorce suit was about to be filed against him; he was unable to work as he had recently lost a leg, and the twenty two hundred dollars was all the money he had. Shortly before, he had gone to his nephew’s to make his home. Under this record respondent fails to show any reason, motive or purpose to cause decedent to make the purported gift.

The record is silent on the man’s age, mental condition, habits or the fact that decedent acted on his own free will or his intention to transfer the money as a gift rather than a loan or a deposit. The circumstances would indicate decedent wras facing a divorce suit and that he transferred his funds to his nephew in whom he had confidence and under whose roof he was living, with an arrangement that he could get back his money as he desired after the divorce litigation. This is verified by the fact that he kept drawing on his nephew as he needed money until his untimely death.

It is unthinkable that a man w-ith one leg, unable to earn his living, would strip himself of every penny he had on earth and hand out twenty two hundred dollars to a nephew without any contract or agreement for care and keep the rest of his life, and no provision for sickness, last illness, funeral expenses, care and support of a four year old daughter, and give it all to a nephew. Still this is the conclusion that must be reached under the testimony of Robert Huston to support a gift inter vivos. Respondent’s testimony would carry more weight if the check had been produced and the two bankers who were present at the purported transaction had been called. The fact that they were not called, justifies a court in concluding that their testimony would be adverse to that of the respondent.

The burden of proof of a gift is on the donee to prove all facts essential to a valid gift. It is not only essential that delivery be shown but it must be accompanied with intent to pass the title and this must be established by clear and convincing evidence. Mere possession, by one claiming property as a gift after the death of the donor, is insufficient to prove a valid gift. The mere fact that Robert Huston had possession of the money in question at the time of the death of his uncle is not enough to establish a gift inter vivos. It is necessary that he show that the donor gave him the money permanently with the intention to make an absolute gift without restrictions. This has not been shown. To the contrary it appears that the donor continued to withdraw money from the fund from the time of the transfer to his death, and it further appears that the donee did not claim the fund as his own until after the death of his uncle, and then not until he was cited in court to account for the same. These circumstances bar a gift inter vivos. Rothwell v. Taylor, 303 Ill. 226; Richardson v. Richardson, 148 Ill. 563; People v. Polhemus, 367 Ill. 185; Millard v. Millard, 221 Ill. 86.

The respondent claimed the property by gift inter vivos and he has the burden of proving by evidence which is clear and not equivocal or uncertain that there was such a gift. It is essential to prove that there was intention oil the part of the deceased to transfer the title and that the donor parted with all control over it. This proof is. lacking and by reason thereof the gift fails. Millard v. Millard, supra; Barnum v. Reed, 136 Ill. 388.

The trial court permitted respondent to testify that he got a check from decedent and deposited it in his own personal account. Objection was made to this testimony on the ground that it was not the best evidence, which objection the court overruled. Clearly this was self-serving. The best evidence was the canceled check and the bank’s records. Hardware Mut. Casualty Company v. Baldus, 316 Ill. App. 283.

The facts and circumstances in evidence show that' the donee occupied a confidential relationship with the donor. Where the relations between the parties appear to be of such a character as to render it certain that they do not deal on terms of equality, but that on the one side, from dependent confidential relation, unfair advantage in a transaction is rendered probable, the transaction is presumed void, and it is incumbent on the stronger party to show affirmatively that no deception was practiced, no undue influence was used, and that all was fair, open, voluntary and well understood. This presumption applies in every instance where the relation between the donor and donee is one in which the latter has acquired a dominant position. The burden is on the one receiving the benefit to show an absence of undue influence by establishing the fact that the donor acted upon competent and independent advice of another, or such other facts as will satisfy the court that the dealing was at arm’s length, or he must show that the transaction was had in the most perfect good faith on his part and was equitable and just between the parties. Kittle v. Brown, 161 Ill. App. 98, 28 C. J., sec. 72, page 670; Gilmore v. Lee, 237 Ill. 402, and Thomas v. Whitney, 186 Ill. 225.

The burden was on the respondent to establish by clear and convincing evidence, all the essentials of a gift inter vivos and this he failed to do. Until this burden was met the infant was not called upon to make any proofs. We find as a matter of fact a gift inter vivos was not established. We therefore reverse the judgment of the circuit court of Cass county and remand the case to said court with direction to enter an order compelling respondent to inventory the funds in question as prayed for in the petition for citation and for further proceedings consistent with opinion.

Reversed and remanded with directions.


author: Presiding Justice Huffman.

text:
    Rolland D. Sprague, Appellee, v. Grant Thomas and Elizabeth Thomas, Appellants.
    Gen. No. 9,862.
    opinion filed April 28, 1943;
    rehearing denied June 23, 1943.
    Raphael E. Yalden, for appellants; B. Jay Knight, of counsel; James Berry, for appellee.
   Opinion by

Presiding Justice Huffman.

“Not to be published in full.”


author: Justice Wolfe.

text:
    A. Y. McDonald Manufacturing Company, Appellee, v. 303 Henderson Corporation, Appellant.
    Gen. No. 9,860.
    opinion filed April 28, 1943;
    rehearing denied June 23, 1943.
    Mayer, Altheimer & ICabaker and Hunter & Hunter, for appellant; Aseher & Ellis, for appellee.
   Opinion by

Justice Wolfe.

“Not to be published in full.”


author: Presiding Justice Riess.

text:
    J. R. Watkins Company, Appellee, v. Roland Salyers, Appellant.
    Gen. No. 9,384.
    opinion filed May 27, 1943.
    Dwight H. Doss, for appellant; N. E. Hutson, for appellee.
   Opinion by

Presiding Justice Riess.

“Not to be published, in full.”


author: Justice Hayes.

text:
    William B. Carr, Appellee, v. Ralph Blackstock, Appellant. Ralph Blackstock et al., Appellants, v. William B. Carr, Appellee.
    Gen. No. 9,371.
    opinion filed May 27, 1943.
    Carson & Appleman, for appellants; A. J. B. Showalter, for appellee.
   Opinion by

Justice Hayes.

“Not to be published in full.”


author: Mr. Presiding Justice Riess

text:
    People of the State of Illinois ex rel. Rollin Chamberlin et al., Appellees, v. Trustees of Schools of Township No. 1 et al., Appellants.
    Gen. No. 9,376.

      Opinion filed May 27, 1943.
    Rehearing denied July 8, 1943.
    John T. Inghram, of Quincy, for appellants.
    Mark A. Penick, State’s Attorney, and Williams & Williams, of Pittsfield, for appellees.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

Defendants have appealed from a judgment of the circuit court of Adams county granting to plaintiffs a writ of mandamus requiring the defendants, Township Trustees of Schools, to give due notice of meetings and hearings and to grant or deny plaintiffs ’ verified petition for detaching certain territory from one community high school district and attaching the same to another district and assessing the costs of such mandamus proceedings against the defendants.

Brown county lies adjacent to and adjoins Adams county on the easterly boundary line thereof. The Clayton Community High School District No. 60 embraces a number of adjacent townships and parts of townships in Adams county, including parts of three townships lying within and along the westerly boundary line of Brown county and three adjacent townships lying within and along the easterly boundary line of Adams county. The Brown County Community High School District No. 67 lies entirely within Brown county, immediately east of and adjoining the said Clayton Community High School District No. 60.

Decuple original petitions signed by 268 persons and duly verified, purporting to comprise more than two thirds of a total number of less than 350 legal voters residing within the territory sought to be detached from Clayton Community High School District No. 60 and attached to and made a part of said District No. 67 in Brown county, were filed with the clerks of the Boards of Trustees of Schools of ten townships, including the six townships above mentioned and affected, which petitions prayed that the territory comprised within said mentioned six townships be detached from said Clayton District No. 60 and be added and annexed to said Brown County District No. 67. Trustees of two of the three townships lying within Brown county gave notice of meetings and duly heard, acted upon and granted said petition. The third township in Brown county called and held a meeting, acted upon and denied the petition, and a statutory appeal from that decision was taken to the county superintendent of schools of Brown counfiy where the same is pending. The trustees of the three townships in Adams county failed to act upon or to either grant or refuse the petitions filed with the clerk of the Board of Trustees of Schools of said respective townships.

A complaint praying issuance of a writ of mandamus to require the defendants to call and hold concurrent meetings and act upon the‘petition by either granting or refusing the same pursuant to the provisions and requirements of the statute was duly filed in the circuit court of Adams county.' The defendants who were joined as Trustees of Schools of the three respective townships lying in Adams county and as individuals, being members of each Board of Trustees, were severally summoned and appeared and filed motions to strike the complaint, without limiting their respective appearances, which motions were overruled by the court. Defendants were ruled to answer and all of the defendants except one Trustee named Padgett, who made default, then filed their answers to the petition, which answers were also stricken on plaintiffs’ motion as not presenting any affirmative legal defense and as not admitting or denying material allegations of fact or showing factual lack of knowledge, duly verified, excusing such failure or by otherwise pleading facts tending to disprove or excuse their alleged failure to duly meet,, act upon and grant or refuse the petition. Upon leave, amended answers were jointly filed by the defendants of each of the three townships, as Trustees and as individuals, pleading in substance the same matters that had been set up in their stricken answers. A further motion by plaintiffs to strike the verified amended answers setting forth numerous grounds therefor was heard and granted by the court for want of sufficient answers, on similar grounds to those upon which their prior answers had been stricken. No further pleadings were filed by the defendants. The court found that the above verified complaint stated a cause of action, which, with the attached petition, notices, returns and exhibits, made a part thereof, clearly entitled the plaintiffs to the relief prayed. The writ of mandamus was thereupon ordered to issue, requiring the respective defendants and Boards of Trustees to give notice of meetings as set forth in the order and to pass upon or conduct hearings on said petition and either grant or deny the petition and further ordered that the defendants pay the costs of suit. The defendants have perfected their appeal to this court and have assigned errors in entering said orders and final judgment.

The Trustees of township Two (2) South Five (5) West in Adams county had called a special meeting for November 17, 1941 and caused due notice thereof to be given. On that date, the Trustees met with their counsel present and adjourned to December 8, 1941, when they again met with counsel present, and adjourned to January 5, 1942, at which time 'only one Trustee was present and no action of any kind was then or thereafter taken by said Trustees on that petition. The Trustees in township One (1) South Five (5) West in Adams county, met and called a similar meeting for November 18, 1941 and gave due notice thereof. On that date, they met and adjourned the meeting to December 16, 1941 when they again met, having counsel present, and adjourned to February 10, 1942, on which latter date one Trustee appeared and no action granting, denying or otherwise disposing of said petition was then or thereafter taken. The Trustees in township One (1) North Five (5) West in Adams county failed and refused to call any meeting and no action whatsoever was taken in the way of giving notice or calling a meeting or by granting or denying or otherwise passing upon said petitions. The Trustees of said respective townships were repeatedly urged to take action by holding due hearings and either granting or denying the petitions, but wholly failed to do so. The plaintiffs appellees set forth in their verified complaint the various steps and procedure allegedly taken by them as indicated by statute, with copy of the signed and verified petition of resident legal voters, and contend that they had in all respects strictly complied with the requirements of the statute for detaching territory from one community high school district and adding and annexing it to another district in compliance with all such statutory provisions.

An answer in a mandamus suit must set up a sufficient defense and should deny facts alleged in the petition or confess and avoid them, by specifically averring facts, which are sufficient in law to defeat the claim or to lawfully excuse the conduct of the respondents. People v. Lueders, 287 Ill. 107, 109, 122 N. E. 374; People v. Board of Com’rs of Cook County, 180 Ill. 160, 54 N. E. 164. A failure to deny material facts well pleaded is' an admission of their truth. People v. Board of Com’rs of Cook County, supra; Chicago & A. R. Co. v. Suffern, 129 Ill. 274, 21 N. E. 824. An answer must be sufficient as a whole or it should be stricken upon motion therefor, since the suit is an action at law and not in chancery wherein parts of an answer may be stricken and the remainder permitted to stand. People v. Powell, 274 Ill. 222, 113 N. E. 614; People v. Board of Review, 329 Ill. 388, 394, 160 N. E. 755. The answer must state positive and definite facts upon which the defendants rely as a defense. Conclusions of the pleader are not sufficient, and if the answer consists merely of general statements and conclusions, the relief prayed for will be granted upon the petition. People v. City of Chicago, 377 Ill. 573, 576, 37 N. E. (2d) 151; City of Chicago v. People ex rel. Union Trust Co., 215 Ill. 235, 237, 239, 74 N. E. 137; Chicago & A. R. Co. v. Suffern, supra; People v. Lueders, supra; Halliday v. Board of Pulaski County Comm’rs; 203 Ill. App. 178, 182.

Defendants, in their numerous amended answers which were stricken by the court, persistently avoided direct admissions or denials of numerous allegations of the complaint by alleging lack of knowledge of many matters which were patently within their knowledge or- of record in the offices of the respective defendants, and in each instance could have been independently answered by various defendants; who saw fit, however, to file answers jointly on behalf of all defendants of each township, pleading conclusions of lack of knowledge concerning such matters or concerning matters which could not be collaterally raised or attacked in a mandamus proceeding. Such evasive pleadings' were properly stricken by the court as not meeting the requirements of the Civil Practice Act.

By their answers, defendants also sought to question the corporate legality of the high school districts. The legality or existence of a community high school district cannot be questioned by an answer in a mandamus proceeding, but must be directly presented by a proceeding in the nature of a quo warranto or scire facias. People v. Trustees of Schools, 111 Ill. 171, 173, 175; People v. Powell, supra; Union School Dist. Directors v. New Union School Dist. Directors, 135 Ill. 464, 28 N. E. 49; Renwick v. Hall, 84 Ill. 162. We hold that the defendants’ motions to dismiss the complaint were properly denied and that the answers upon which defendants rely were insufficient and were properly stricken.

A petition by resident legal voters in compliance with the requirements of the statute is a prerequisite to the jurisdiction of the Board of Trustees to act, and likewise to the jurisdiction of any tribunal hearing the case on certiorari or appeal from the Board (Bourland v. Snyder, 224 Ill. 478, 480, 79 N. E. 568,) or, as here, in a collateral mandamus proceeding.

Section 46 of chapter 122, entitled Schools, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 123.049], confers on Boards of School Trustees authority, among other provisions, to detach territory from one district and add it to another district adjacent thereto, . . . ” when petitioned by two-thirds of the legal voters residing within the territory described in the petition, asking that such territory be detached from one district and added to an adjacent district.”

The petition must recite and show that it is signed by the requisite two thirds of the total number of legal voters residing in the territory sought to be detached as essential to the jurisdiction of the Trustees to make the change. The necessary statutory requirements were met by the petition as shown by the verifications attached thereto and as set forth in the verified complaint. . The question of the number of legal vo'ters signing the petition for detachment, regular on its face, or whether they were severally legal voters cannot be collaterally raised and litigated here by answer in a mandamus proceeding averring lack of knowledge in relation thereto. (Cleary v. Hoobler, 207 Ill. 97, 99, 69 N. E. 967.)

Section 47 of the above chapter provides that

“Changes in the boundaries of districts which lie in separate townships, and of districts formed of parts of two or more townships, may be made at any semiannual meeting of trustees in April or October, or at any special meeting held for such purpose, by the concurrent action of the several boards of trustees in which the district or districts lie, each board being petitioned as provided in the preceding section of this act. ’ ’

The foregoing concurrent action has been construed to mean the separate action of each board and not the joint action taken by all of the boards. While changes in the boundaries of districts which lie in separate townships can only be made by the concurrent action of the several Boards of Trustees in which the district or districts lie, the words “concurrent action” do not mean or imply joint action, but the independent action of each board, acting separately, each agreeing to such change and each board having jurisdiction to act in the premises, subject to the right of appeal therefrom as provided by statute. Heppe v. Mooberry, 350 Ill. 641, 647, 183 N. E. 636.

Section 52 of the above chapter requires that such petition be filed with the clerk of the respective Boards at least 20 days before the meetings at which the same is acted upon and that "copies of the petition with written notices signed by one or more of the petitioners be delivered at least 10 days before the same is to be considered, to the president or clerk of the school directors of each district whose boundaries will be changed if the petition is granted. Allegations of the service of such 10 days’ notice on all interested parties were set forth in the verified complaint. The actual time that the same remained upon file was not so set forth but a compliance with the statute was alleged and it is provided by section 53 of said chapter that,

“When a petition shall come before the trustees of schools asking for a change in the boundaries of districts, it shall be the duty of the trustees to ascertain whether the foregoing provisions have been strictly complied with. If it shall appear that they, or either of them, have not been complied with, the board shall adjourn for not longer than four weeks, in order that the foregoing provisions may be complied with. There shall be but one adjournment for such purpose.”

Section 54 of said chapter further provides that,

“If it shall appear on the day of the regular meeting, or special meeting in case same is provided for herein, or in case of adjournment at the adjourned meeting, that such provisions have been complied with, thfe trustees shall consider the petition, hear any legal voters of the district or districts affected by the proposed change who may appear to oppose the petition, and shall grant or refuse the prayer of the petitioners without unreasonable delay. After the trustees of schools have considered the petition, no objection shall be raised as to its form, and their action shall be prima facie evidence that all requirements have been complied with.”

Then follows provisions in section 55 of said chapter for appeal from the decisions of the Board of Trustees.

Under the statutory provisions, supra, it became the express duty of the respective Boards of Trustees to pass upon the petition for change of boundaries and if the same'did not comply with the requirements of the statute, it was their duty to adjourn for a period not exceeding four weeks in order that such provision may be complied with. The purpose of the adjournment of a meeting by the Board of Trustees provided for by the statute, is to ascertain whether or not the requirements of the statute concerning the petition have been strictly complied with in some particular and only one adjournment for not more than four weeks for that purpose is provided for in the statute. People v. Nelson, 252 Ill. 514, 96 N. E. 1071; sec. 53, ch. 122, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 123.056]; sec. 54, ch. 122, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 123.057]. If it appears at such meeting or adjourned session thereof, that all statutory requirements have been complied with, it becomes the express duty of the Board of Trustees to conduct hearings and consider the petition and to “grant or refuse the prayer of the petitioners without unreasonable delay.” Although proponents of the petition were present in person and by counsel at such adjourned meetings, the two Boards of Trustees whose counsel were also present, took no action and held no hearing thereon but again con-, tinned the meetings to a subsequent date more than four weeks later than the first meeting, when no quorum appeared and no hearing was had and said Boards thereby wholly ignored and failed to comply with the express mandatory requirements of the above cited statutes. The third Adams County Board, as stated, neither called nor held any meetings, nor did they take any action whatsoever in compliance with such statutory requirements. The duty imposed upon such Trustees by section 54, supra, was an exercise of ministerial powers and not one of discretionary judicial powers. People v. Board of Education, 380 Ill. 311, 315, 43 N. E. (2d) 1012 and citations. Where the duty of an officer is fixéd-and certain, the performance of such duty is ministerial. People v. May, 251 Ill. 54, 57, 95 N. E. 999.

It is also contended by the defendants that since' the four weeks ’ time for which the statute permitted them to hold adjourned meetings has expired and since the last meeting of two of the Boards failed to adjourn to any fixed date, the Boards have lost jurisdiction and that the court has no jurisdiction to order any meeting or action by the Board. We deem this contention to be without merit. (People v. Lueders, supra; People v. Nelson, supra.) Persons seeking a change in a school district who have done all that the law requires of them will not be defeated in their purpose by the neglect or refusal of the Trustees of Schools to take the steps required of them by statute and such failure will not invalidate any prior acts in that regard. Union School Dist. Directors v. New Union School Dist. Directors, supra. Trustees of municipal corporations cannot, by adjourning their meetings, place themselves beyond the coercive power of the court to compel by mandamus the performance of a duty or duties enjoined upon them by law. People ex rel. Bunge v. Downers Grove Sanitary Dist., 281 Ill. App. 426. They may be compelled to reassemble and perform that duty even though, through neglect or failure, they could no longer have done so of their own volition. Any evasion of a positive duty amounting to virtual refusal to perform that duty, or conduct from which a refusal can be conclusively implied is equivalent to a positive refusal. Loewenthal v. People, 192 Ill. 222, 231, 232, 61 N. E. 462; People ex rel. Bunge v. Downers Grove Sanitary Dist., supra; Board of Sup’rs v. People, 226 Ill. 576, 580, 80 N. E. 1066.

Mandamus is the proper remedy in a case wherein an officer is charged with failure to perform a mandatory public duty and no demand and refusal to perform such duty is a necessary precedent to the institution of mandamus proceedings. Trustees of Schools v. People, 76 Ill. 621; Trustees of Schools v. People ex rel. Duffy, 121 Ill. 552, 555; Trustees of Schools v. People, 25 Ill. App. 25. Appellants’ counsel are in error in the contention that it is now too late to seek a remedy by mandamus and that the same would be unavailing at this time. The cited cases are not in point. See People v. Lueders, supra. It is there aptly said that, “It would be a reproach to the law if there is a right and no means to vindicate and maintain it, and that would be the "case if the respondents, by refusing to perform their duty, have' absolved themselves from all obligations of the law.”

We have carefully examined the question of service had upon the corporations and upon the individuals who are defendants and have appeared in this proceeding and we find therefrom that the court has jurisdiction of both the parties and the subject matter of the cause of action'; that the corporation is a necessary party and that the Trustees as individuals are proper parties to this proceeding, and we find no merit in the contentions of the defendants to the contrary. The removal of an individual Trustee from a township, who is a party defendant to the pending mandamus proceedings, will not affect the jurisdiction of the court to proceed against the Board and its member Trustees. Hotchkiss v. City of Calumet City, 377 Ill. 615, 620, 37 N. E. (2d) 332. We hold further that where the duty of a public official is fixed and a mandamus writ necessarily issues to compel him to perform that official duty, costs may properly be assessed against him as an individual. People v. Edmands, 252 Ill. 108, 119, 96 N. E. 914; People v. Board of Sup’rs, 294 Ill. 579, 585, 128 N. E. 645; Hendricks v. Gamble, 217 Ill. App. 422; see ch. 87, sec. 5, Mandamus, Ill. Rev. Stat. Although the corporation is the only necessary party to the proceeding, the Trustees as individuals are proper parties and should be served with the peremptory writ. Village of Glencoe v. People, 78 Ill. 382; People v. Getzendaner, 137 Ill. 234, 263, 34 N. E. 297; People v. Raymond, 186 Ill. 407, 423, 57 N. E. 1066; People v. City of Casey, 241 Ill. App. 91; City of Charleston v. Moore, 94 Ill. App. 51, 52.

We have carefully considered numerous other contentions of the defendants, which we have not discussed herein and in which we cannot concur. Finding no reversible error in the record, the judgment of the circuit court of Adams county will be affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Culbertson

text:
    Joseph Eldridge, Appellee, v. Christine Boismenue, Executrix of Estate of Jesse Boismenue, Deceased, Appellant.
    Opinion filed June 1, 1943.
    Kramer, Campbell, Costello & Wiechert, of East St. Louis, for appellant.
    Felsen & McMurdo and Beasley & Zulley, all of East St. Louis, for appellee.
   Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This is an appeal from a judgment for $4,000, rendered in the circuit court of St. Clair county, in favor of plaintiff appellee, Joseph Eldridge (hereinafter called plaintiff), - and against defendant appellant, Christine Boismenue, executrix of the estate of Jesse Boismenue, deceased (hereinafter called defendant).

This is a suit to recover for personal injuries and property damage in an automobile accident, resulting from a head-on collision between an automobile driv.en by plaintiff and an automobile driven by defendant’s intestate, which occurred on September 21, 1941, on State Route No. 3, just north of the Village of Dupo, at about 4:05 p. m., on a clear day.

The issues in this case were made by a complaint, with one count, and an answer denying the material allegations of said complaint. The complaint alleged, in substance, that the plaintiff on September 21,1941, was driving his automobile in a northerly direction on a hard-surfaced road, identified as Illinois State Highway Route No. 3, through the northerly part of Dupo; that the highway ivas divided,into two lanes of traffic by a black line in the center; that the easterly lane was used for north-bound traffic, and the westerly lane was used for south-bound traffic; and that the defendant’s intestate was driving south. -Plaintiff alleges that he was in the exercise of due care and caution for his own safety and the safety of his automobile, and charged the defendant’s intestate with numerous acts of negligence, as follows: (a) That he improperly, carelessly and negligently undertook to pass a vehicle driving in a southerly direction and did not- return to the right side of the road in time to avoid a collision with plaintiff. (b) That he negligently and improperly failed to keep a proper lookout, (c) That he did not give plaintiff at least one half of the main traveled portion of the road, in violation of sec. 152 of ch. 95% of Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 85.184]. '(d) That he operated his automobile to his left of the center line- of the highway in violation of sec. 151 of ch. 95%, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 85.183}. (e) That he drove his automobile at a high and dangerous rate of speed of 45 to 50- miles an hour, in violation of sec. 146 [Jones Ill. Stats. Ann. 85.178] of the aforesaid statute, (f) That he attempted to pass another automobile and drove to the wrong side of the road and struck the plaintiff’s automobile head-on. The complaint then alleges property damage in the sum of $966.33, and claims personal injuries to plaintiff, expenses for medical treatment, and hospitalization and nursing, in the amount of $25,000.

The defendant’s answer denies all the allegations of negligence, and also the allegation that plaintiff was in the exercise of due care; and denies that the plaintiff was entitled to recover.

Almost all of the evidence in this case is undisputed.

The evidence discloses that the plaintiff, on the day of the accident in question, was employed as a car inspector for the Missouri Pacific Railroad, at Dupo, Illinois, and that on the day of the accident in question, he worked from 8 a. m. to 4 p. m., and that after leaving his employment he drove north on highway No. 3 in his 1941 Ford V-8. The evidence discloses that highway No. 3 runs north and south at the place of the accident in question, and is a highway 18 or 20 feet wide, and that the conditions of the weather were clear and warm, and the pavement dry. It appears that the accident occurred about a mile north of the place where plaintiff was employed.

Robert Emmett O’Keefe, a witness produced on behalf of the plaintiff, testified that he appeared at the scene of the accident shortly after it had occurred, and that he saw plaintiff lying “half down on the floor and half under the dashboard” of his automobile. This witness testified that plaintiff’s automobile was partly on and partly off of the north-bound lane of highway No. 3. This witness was in an Inn about 300 feet south of the point of the accident when he heard the impact, and immediately ran to the scene of the accident, and when he arrived there he found the plaintiff’s car facing north, with two wheels off of the pavement on the east shoulder of the road, and the defendant intestate’s automobile all the way across the black line, facing cater-cornered south, and that the cars had come together head-on.' This witness testified there were skid marks 12 to 15 feet long, directly behind plaintiff’s car and leading to the plaintiff’s car. This witness further testified there were no skid marks in back of the defendant intestate’s automobile.

George Koch, another witness called on behalf of the plaintiff, testified that the accident happened in front of the door of his residence, about 5 or 6 minutes after 4 o ’clock, and that his attention was attracted to it by the crash. This witness testified that the Model A Ford, driven by defendant’s intestate, was headed south, while the plaintiff’s automobile was headed north, and that after the collision, plaintiff’s automobile was about a foot off of the east side of the slab, and the car that was headed south was on the east side, with the back wheel 6 or" 8 inches over the black line. Several other witnesses testified to the position of the cars after the accident, and there is complete uniformity in their testimony that plaintiff’s car was on his own proper side of the road, and partly on the shoulder, and that defendant intestate’s car was completely on plaintiff’s side of the road.

Plaintiff received serious injuries as a result of this accident, and it is not necessary to discuss same for the reason that the amount of the verdict is not in any wise challenged on this appeal.

From the evidence in this case it appears that after the accident, defendant’s intestate was apparently sitting up straight in his car, with one hand on the wheel, and witnesses observed him breathing for some minutes after the accident. It appears that he passed away a short timé after the occurrence of the accident. An autopsy performed on the body of defendant’s intestate revealed that he had sustained serious injuries as a result of the accident, and that such injuries were sufficient to have produced his death. However, this autopsy also disclosed defendant’s intestate had the heart of an old man, and that the vessels were sclerosed, and evidenced arteriosclerosis, or hardening of the arteries, to a marked degree, in both the aorta and the coronary vessels. There is evidence in the record of a witness who had been acquainted with defendant’s intestate for 35 years, and had on many occasions seen him drive his automobile; that at all times defendant’s intestate was a careful driver. This witness testified on cross-examination that he had never ridden in an automobile with defendant’s intestate. It is urged on this appeal that defendant’s intestate had suffered a heart attack, which caused the accident in question.

The following errors are relied upon in this court for a reversal of the judgment in this case: (1) The court erred in denying defendant’s motion for directed verdict at the close of all the evidence; (2) Plaintiff was guilty of negligence, as a matter of law; (3) The defendant’s intestate was not guilty of negligence and (4) The judgment is against the manifest weight of the evidence and the circumstantial evidence, and the greater weight of the evidence preponderates in favor of the defendant.

It seems quite clear to us that the court did not err in denying defendant’s motion for a directed verdict at the close of all the evidence in this case. On a motion for a directed verdict the court cannot weigh evidence and must reject all contradictory evidence or explanatory circumstances (Shutan v. Bloomenthal, 371 Ill. 244, 254; Blumb v. Getz, 366 Ill. 273, 277).

We fail to perceive any evidence in this record that would permit us to say that plaintiff was guilty of negligence, as a matter of law. An examination of the evidence persuades us that the question of defendant intestate’s negligence was very properly submitted to the jury for their determination, and we are not disposed to disturb their finding of guilty in this case,' and we do not believe, and so hold, that the judgment in this case is not against the manifest weight of the evidence, but that, on the contrary, it has abundant support in the evidence.

The judgment of the circuit court of St. Clair county being correct and proper, and there being no reversible error in this record, said judgment is hereby affirmed.

Judgment affirmed.


text:
    John C. Woodham, Appellant, v. Blaine L. Miller et al., Appellees.

      Opinion filed June 1, 1943.
    Ben H. Townsend, of Mt. Carmel, and P. C. Walters, of Albion, for appellant.
    P. J. Kolb and Walter F. Kolb, both of Mt. Carmel, for appellees.
   Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This is an appeal from the circuit court of Wabash county, by appellant, John C. Woodham (hereinafter called plaintiff), such court having dismissed the complaint of plaintiff for want of equity in this action. Plaintiff had filed a complaint as against appellees, Blaine L. Miller, Beulah Miller, Edna J; Miller and Albert J. Miller (hereinafter called defendants) in aid of execution, to set aside two deeds given by defendants, Blaine L. Miller and Beulah Miller, to their daughter, the defendant Edna J. Miller, on the ground that the same were fraudulent. One deed conveyed a forty-acre tract, and another a twenty-acre tract in Wabash county.

The facts as disclosed by the record in this cause indicate that plaintiff had filed a foreclosure suit as against the defendants, Blaine L. Miller and Beulah Miller, his wife, and procured a decree in the sum of $3,870.58 and costs of suit, which amounted to a sum in excess of $4,000. The property foreclosed upon was sold at the master’s sale for $1,750. Just a few days before the sale of the mortgaged property the defendants, Blaine L. Miller and Beulah Miller, conveyed the two tracts of land which were made the subject of this action (not the same land as was involved in the foreclosure suit) to their daughter, the defendant Edna J. Miller. (There was also a conveyance of two lots in the Village of Browns, Illinois, which were improved with a filling station and residence, to another daughter, Ida Reid, who was not a party to this action.) The real estate conveyed to Edna J. Miller, together with the property in the Village of Browns, was all of .the real estate owned by the said Blaine L. Miller and Beulah Miller.

A deficiency judgment was entered in the foreclosure action as against the said Blaine L. Miller and Beulah Miller and execution was issued against them and returned “no property found” after which the instant action was filed.

It is the contention of plaintiff that the transactions clearly show a fraudulent intention on part of defendants Blaine L. Miller, and Beulah Miller. The testimony of the daughter, Edna J. Miller, and Blaine L. Miller, who were called as witnesses by plaintiff, indicated that the actual consideration for the transfer of the property to Edna J. Miller was satisfaction of a debt in the sum of $1,136.66, which was loaned them by the said Edna J. Miller over a period of years, commencing in 1932 and continuing until 1938. A further consideration of $1,200 in cash was paid to Blaine L. Miller by the daughter at the time of the transfer, making a total consideration of $2,336.66, without computing interest on the money loaned.' The forty-acre tract of land was subject to a homestead estate and a life estate therein by defendant Albert J. Miller, the father, of Blaine L. Miller, who was 79 years old at the time of the transfers referred to, and the tracts were likewise burdened with an oil and gas lease. There was some evidence that the value of the land foreclosed by plaintiff was about $3,685, and that the forty-acre tract conveyed to the daughter was worth from $3,000 to $4,000, less the value of the life estate of Albert J. Miller; and that the twenty-acre tract conveyed to the daughter was valued at $1,200 to $1,500, both tracts so conveyed being subject to an oil and gas lease. At the time of the conveyance to Edna J. Miller, the said Blaine L. Miller had real estate in the Village of Browns, the value of which was not shown by the record, and also an equity of redemption which, presumably, was worth $1,935. The only indebtedness was the mortgage debt referred to. There was.testimony that Blaine L. Miller’s gasoline and tire business was worth about $1,000, and that he had a truck worth about $700, and household goods worth about $400, which after adding the $1,200 in cash which he received from his daughter and deducting his personal exemption of $400, and eliminating the equity in the mortgaged premises, theoretically left Blaine L. Miller worth about $2,900, an amount in excess of the amount of the deficiency judgment, without considering the value of the real estate in the Village of Browns.

Basically, the only fact established by plaintiff to prove fraud was that both Blaine L. Miller and Edna J. Miller knew that a decree of foreclosure had been rendered. There was no showing of any intentional fraud by either party, or that the conveyance was in trust for the said Blaine L. Miller.

There is some confusion demonstrated in the briefs and in the record as to the effect of calling the defendants, Blaine L. Miller and Edna J. Miller, to testify, without indicating that such witnesses were being called under section 60 of the Civil Practice Act [Jones Ill. Stats. Ann. 104.060], as if under cross-examination. The matters referred to by the witnesses, however, were not contradicted in any manner, and thus constitute the only evidence in the record on the points referred to, and in the absence of contradictory evidence or circumstances making such evidence either incredible or inapplicable, such testimony is binding, irrespective -of whether the testimony was produced pursuant to section 60 of the Civil Practice Act, or not. By the terms of such section of the act the party calling an adverse witness has the right to contradict or impeach such witness. In absence of any contradictory evidence, or impeachment, the testimony of the witness is entitled to the same tests as applied to any other witnesses (Crowder v. Nuttall, 285 Ill. App. 254).

The defendants have raised a contention that the deficiency judgment as against the defendant Albert J. Miller is void, and have likewise raised an issue of variance, based on a description of the land alleged to have been fraudulently conveyed. We have already allowed a motion by plaintiff to amend such description so that we give no further consideration to such point. It is not necessary that we inquire further into the contended invalidity of the deficiency decree, in view of what we have to say with reference to the action of the court. Even assuming the validity of the deficiency decree, the action of the court in dismissing the complaint of plaintiff for want of equity ■ was clearly proper. No evidence was offered by plaintiff in any manner contradicting or impeaching the testimony of Blaine L. Miller and Edna J. Miller, who were ' called as witnesses in this case. The testimony stands unchallenged, and upon such basis shows the payment of $1,200 in cash and the forgiveness of a debt of $1,136.66. On the basis of the record the value of the tracts conveyed was about $5,000, not taking into consideration the burdens on them. There was no proof as to the value of the land subject to such burdens, but some, contention is made that on the basis of a mortality table computation, which plaintiff asks this court to undertake, the life estate of Albert J. Miller is stated to be worth about $820. Even accepting such conclusion, this left the value of the land conveyed at about $3,500, subject to the oil and gas lease which may have depreciated such value still further. It cannot be stated that a consideration of $2,336.66 for land of such value is so inadequate as to raise a presumption of constructive fraud.

It is pointed out by the defendants herein that the value of the land foreclosed upon, which was shown to be $3,685, was purchased by plaintiff at the foreclosure sale for $1,750, which was a considerably lower proportion of the value than presumably paid by the defendant, Edna J. Miller, for the tracts conveyed to her. It is conceded by plaintiff that while transfers made with fraudulent intent to defeat creditors may be set aside, though there was actual consideration and even though it was full and adequate, in such case it is necessary for plaintiff to show fraud in fact on part of the debtor, and participation therein on part of the grantee (Second Nat. Bank of Robinson v. Jones, 309 Ill. App. 358, 366), and that where an immediate member of the family is preferred as a creditor there must be clear and convincing proof of a valid existing debt which could be enforced, and the fact of family relationship is proper to be considered with other evidence to impeach the transaction. It is pointed out by plaintiff that a portion of the moneys advanced by the daughter Edna J. Miller to her father, totaling $264.80 could have been barred by the statute of limitations, but the portions so barred would not be substantial enough to change the general situation with reference to the indebtedness of the said Blaine L. Miller to Edna J. Miller.

This case apparently is framed as an action under section 4 of the Frauds and Perjuries Act [Jones Ill. Stats. Ann. 55.04] in aid of execution (James H. Rice Co. v. McJohn, 244 Ill. 264). An action to set aside a fraudulent conveyance such as' is involved in the instant case falls into two classes: (1) Where the conveyance is entered into with actual fraudulent intent on part of both parties to hinder and delay creditors— sometimes referred to as fraud in fact; and (2) Where, from the terms of the agreement or the nature of the transaction itself, the conveyance is rendered fraudulent as a conclusive presumption of law — sometimes referred to as fraud in law (Second Nat. Bank of Robinson v. Jones, supra).

In the first category, a conveyance may be void as against a creditor, even though a full and fair consideration was paid, and the grantor was solvent when making the conveyance, if in fact such conveyance was made for the fraudulent purpose of hindering and delaying the creditor in the collection of his debt. Under the second class of cases, however, it is essential that insolvency at the time of the making of the conveyance be alleged and proved, and the return of execution “nulla bona” does not supply such proof (Iles v. Heidenreich, 201 Ill. App. 619, 626, 627). In the instant case there is no proof either direct or circumstantial, of actual fraud, so that this case does not fall under the first class of cases. Nor does it fall under the second class of cases because there was an adequate consideration for the conveyance, and the evidence shows that Blaine L. Miller was not insolvent when the deeds were given. Fraud is never presumed, and the burden of proof is on one charging fraud to establish the same by clear, convincing and satisfactory evidence (Regner v. Hoover, 318 Ill. 169, 173), and the fact that a deed is made to a near relative does not render the deed presumptively fraudulent, but the relationship is a mere circumstance which may excite suspicion, but will not of itself amount to proof of fraud (Garrett v. Garrett, 343 Ill. 577, 580; Ayers Nat. Bank of Jacksonville v. Barber, 287 Ill. 182, 189).

It had likewise been held that a debtor may prefer one creditor over others when he acts without fraud, even though he transfers all his property to the preferred creditor, and a mere suspicion arising out of the fact that the parties to the transaction are close relatives is not enough to set aside the conveyance in the absence of proof of fraud (Hurt v. Ohlman, 349 Ill. 163, 170; Albers v. Zimmerman, 376 Ill. 306).

In the instant case there was no proof of actual fraud, and the only circumstance relied upon by plaintiff (that the grantee was the daughter of the grantor, and that a decree of foreclosure had been entered as against the grantor, to the knowledge of the parties), was insufficient in light of the evidence in the case to require that the decision of the trial court dismissing the complaint for want of equity be reversed. The courts of this State have even indicated, under facts similar to those which we find in the instant case, that even in absence of a good and valuable consideration passing between close relatives where there had been a valuable conveyance by a parent to a child, a chancellor was warranted in finding that complainants had failed to establish by proof the material allegations of the complaint (fraud), and that the equities were with the defendant (Connors v. Yocum, 272 Ill. App. 269). In the instant case, however, the existence of a valuable consideration for the conveyance, together with the absence of any proof of fraud, and an absence of any showing of fraudulent understanding between Blaine L. Miller and his daughter, or any facts from which a presumption of such fraud would arise, does not justify a reversal of this cause. Plaintiff: failed in the state of the record before this court, to make out a case of actual or constructive fraud. Under the state of the record we cannot conclude that the chancellor, who heard the witnesses, did not determine the issues properly. The judgment of the circuit court of Wabash county will, therefore, be affirmed.

Judgment affirmed.


text:
    Edward Haynes and Clemma Haynes, Appellants, v. Bob Holman, Trading as Holman Motor Sales, and George Coleman, Appellees. John W. Clark, Jr. et al., Appellants, v. Bob Holman, Trading as Bob Holman Motor Sales, and George L. Coleman, Appellees.
    Opinion filed June 1, 1943.

      L. P. Harriss, of Du Quoin, Isaac K. Levy, of Murphysboro, and Clyde A. Whiteside and H. N. Finney, both of Harrisburg, for appellants.
    W. C. Kane and John K. Kane, both of Harrisburg, for appellees.
   Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This is an appeal from that part of a judgment of the circuit court of Saline county, in which the trial court sustained a motion made on behalf of appellee, Bob Holman (hereinafter called defendant Holman), for judgment notwithstanding the verdict. The only error assigned on appeal is, substantially, that the court below erred in allowing such motion as to defendant Holman.

The appellants, Edward Haynes and Clemma Haynes, and the appellants, John W. Clark, Jr., John H. Clark, Emily Clark and Mary K. Mugge (hereinafter called plaintiffs) were plaintiffs in two separate cases as against the same defendants, the cases having been consolidated for trial and growing out of the same accident. The plaintiffs were occupants of the same automobile.

The complaints in each of the cases charged that the defendant Holman (who resided in Saline county, and was doing business as the Bob Holman Motor Sales), on December 25, 1940 owned a certain Ford automobile which the defendant Holman, by his agent and servant, the defendant George L. Coleman, was driving and operating upon a highway near the Village of Gos-sett, in White county; and that the plaintiff John W. Clark, Jr., was driving a Chevrolet automobile in a northerly direction on such highway (the other plaintiffs being passengers in such automobile). For the purposes of this opinion it is unnecessary to consider the allegations and the proof relating to negligence on part of the defendant Coleman. The defendant Holman filed a separate answer to each of the complaints, denying the ownership of the Ford automobile and denying that the defendant Coleman was his agent and servant at the time referred to. The case was tried before a jury and a verdict was returned in favor of plaintiffs, and as against both defendants, Holman and Coleman. (Plaintiffs were found not guilty by the jury on the counterclaim filed by the defendant Coleman.) The only motion filed by either defendant, after the verdicts of the jury, was that filed by the defendant Holman, asking for a judgment notwithstanding the verdict of the jury in favor of defendant Holman (although motions for directed verdicts were made prior to the submission of the case to the jury). The trial court allowed the motion for judgment notwithstanding the verdict as to the defendant Holman, and the only question presented on this appeal is whether the trial court erred in entering judgment in favor of defendant Holman, notwithstanding the verdict of the jury.

Under the issues presented in this court, the only question for determination on appeal is whether there is any evidence in the record, fairly tending to prove that the defendant George L. Coleman was, at the time and place of the accident, acting as agent for the defendant Holman, and whether the defendant Coleman was, at the time and place in question, acting within the scope of his employment.

It was disclosed by the evidence that the automobile which was being driven by the defendant Coleman, was purchased by him from the defendant Holman on a conditional sales contract, executed December 24, 1940, which contract bore an assignment to a finance company. The automobile, at the time of the collision, carried on it the dealer’s license plates of the defendant Holman’s motor sales business. It was shown that the defendant Coleman had been selling automobiles on a commission basis for the defendant Holman (who was engaged in motor sales and service business), for approximately a year and a half prior to December 25, 1940. It was also shown that defendant Coleman sold automobiles for other unspecified people. The defendant Holman did not direct where Coleman should work each day, nor submit to Coleman the names of prospective purchasers, or require that Coleman report at his place of business at certain regular hours, nor did he give Coleman directions of any kind as to where he was to go each day. Coleman sold nothing for the defendant Holman, except automobiles, and received no pay other than commissions on sales of automobiles.

On Christmas Day of 1940, the day on which the collision occurred, the place of business of the defendant Holman was closed and the defendant Holman was out of the State and did not know where the defendant Coleman was on that day. It was shown by the evidence that a few days prior to December 25, 1940, a certain Kenneth Gossett had asked the defendant Coleman, in Norris City, if Coleman would bring a water pump for Gossett’s 1939 Ford truck the next time he came to Norris City. On the morning of December 25, 1940, Gossett saw the defendant Coleman in Norris City and asked him if he had brought the water pump. Coleman replied that he had forgotten to bring the pump and asked Gossett to go along with him to get the pump. Gossett testified that defendant Coleman had stated that he had come to Norris City on Christmas Day to sell a car to a Kenneth Cole, who was not with him and whom he did not find in Norris City. A Mr. Yates, who was with Gossett, was asked by defendant Coleman, “How about taking a ride? I am driving a new 1941 car. Would you like to see how it runs, Iioav it rides ? ’ ’ There was no shoAving in the rec-cord that Yates was a prospective purchaser, or that any attempt was being made to sell Yates an automobile. Both Gossett and Yates got into Coleman’s car and they started for Eldorado (the place of business of defendant Holman) to get the water pump. (There is some evidence that defendant Coleman stopped' on the way and that a Mr. Henson had given defendant Coleman some names of prospective purchasers of automobiles.) Afterwards, while defendant Coleman was driving to Eldorado for the purpose of getting the water pump for the witness Gossett, accompanied by Gossett and Yates in his automobile, the accident involved in this proceeding occurred.

The evidence disclosed that Coleman was not employed by defendant Holman to sell automobile parts, and was not paid in any way for selling automobile parts, and that, in fact, defendant Coleman did not know anything about the parts store in the garage, ancl that when parts customers came to the garage Coleman did not wait on them and that such customers were taken care of by another employee known as a “parts man.” Defendant Coleman had a key to the garage, but did not have a key to the parts room. The evidence does not disclose where the water pump was located, whether it could have been found in the garage away from the parts room, or whether the water pump was in a bin outside the parts room. The defendant Holman who was the only one to- testify as to this matter, indicated that the water pumps were kept in the parts room, but that he could not be certain about this.

It is the contention of the plaintiffs that the trial court invaded the province of the jury in sustaining the motion of defendant Holman for judgment notwithstanding the verdict, for the reason that the evidence tended to show that Coleman was the agent for Holman, and that he was acting within the scope of his employment at the time in question. The only evidence on the question of agency has been outlined briefly in the. statement of facts heretofore set forth. It appears from such, statement of facts that Coleman was driving his own car. He was employed to sell automobiles on a commission basis for Holman, as well as for others. At the time of the collision it is apparent that Coleman was taking Gossett to get a water pump for the Gossett car, as the result of a request which Gossett had made of Coleman. Coleman was not employed by defendant Holman to sell automobile parts and did not function as to such matters on behalf of defendant Holman, as indicated in the statement of facts set forth herein.

Where there is evidence, direct or circumstantial, which tends -to show that an agent is acting within the scope of his authority, the questions as to the nature and extent of the agent’s authority and whether the particular act in controversy was within the scope of his authority, are usually questions of fact for a jury. On a motion for judgment notwithstanding the verdict, the question before the court in a case such as is here presented on appeal, is whether there is any evidence, in the record which fairly tends to prove that the person, who is asserted to be the agent, was in fact an agent and was acting within the scope of his agency at the time of the accident in question. If there is a failure of such proof, the court should direct a verdict upon motion, or allow a motion notwithstanding the verdict if such motion is made after a verdict of the jury has been returned. In the instant case, we believe it was proper for the court to allow the motion for judgment notwithstanding the verdict as to defendant Holman.

The relationship of principal and agent ordinarily cannot be established by statements of the agent, made outside of the presence of the principal (Kusek v. Allied Packers, Inc., 246 Ill. App. 209), and the burden is on the plaintiff to show the agency (Schmidt v. Shaver, 196 Ill. 108, 115).

We need not determine whether or not defendant Coleman was an independent contractor since, under the facts in the record, there appears to be no evidence which would have justified the court below in denying the motion for judgment notwithstanding the verdict since there was no showing that at the time and place of the accident, defendant Coleman was acting within the scope of any employment which he had with defendant Holman. As stated in the case of Jones v. Standerfer, 296 Ill. App. 145, at page 150, “. . . it is necessary to show that the relation of master and servant, or principal and agent, exists between the person at fault and the one sought to be charged for the result of the wrong, and the relation must exist at the time and with-respect to the particular transaction out of which the injury arose (Mosby v. Kimball, 345 Ill. 420, 427).”

In the case of Burster v. National Refining Co., 274 Ill. App. 104, the direction of a verdict for an employer where a salesman, at the time of the accident, was not driving the automobile under control of his employer, but was then returning from a salesmen’s meeting and was using his own discretion as to how he should travel, was held proper by the Appellate Court.

In the light of these, and other applicable authorities, it cannot be said that the defendant Coleman was acting within the scope of any employment which he may have had with the defendant Holman. Under the evidence in the record before us in the instant case, he was not then engaged in any activity relating to his particular employment of selling automobiles, but was apparently simply taking the witness Gossett and his companion to Eldorado for the purpose of obtaining a water pump as a courtesy to Gossett, and apparently not in any manner in furtherance of his duties or employment in connection with the sales of automobiles for defendant Holman. Defendant Coleman was not employed for that purpose and was not paid for such purpose. When an employee acts outside of the scope of his employment he can become as much a stranger to his master as any third person, and an act of a servant not done within the scope of the employment for which he was engaged, cannot be regarded as an act of the master so as to impose liability on the master for the consequences thereof (Johanson v. William Johnston Printing Co., 263 Ill. 236).

We are, therefore, of the opinion that the trial court did not err in entering judgment notwithstanding the verdict as to the judgment against the defendant Holman. There has been no appeal from the judgment against the defendant Coleman. The judgment of the trial court will, .therefore, he affirmed.

Judgment affirmed.