author: Mr. Presiding Justice Dady

text:
    Charles H. Kerr, Appellant, v. Genevieve L. Schrempp et al., Heirs at Law of John Schrempp, Deceased, Appellees.
    Gen. No. 9,445.

      Heard in this court at the February term, 1945.
    Opinion filed February 28, 1945.
    Rehearing denied May 1, 1945. Released for publication May 3, 1945.
    Ed. C. Kaburick, M. J. Brown and Herbert W. Dey, all of Hillsboro, for appellant.
    Omer Poos, of Hillsboro, for appellees.
   Mr. Presiding Justice Dady

delivered the opinion of the court.

This is a suit at law by the assignee of a promissory note against the devisees of one of the makers thereof. A jury trial was waived, and the trial court entered judgment for defendants. Plaintiff appeals.

On July 9, 1931, John Schrempp and Louis Engelmann, as comakers, for value, executed and delivered to Nokomis State Bank a promissory note for $900 due July 9,1932.

Thereafter the bank was duly adjudicated insolvent in a proceeding in the circuit court of Montgomery county, and-in such proceeding a receiver was duly appointed and qualified. On February 13, 1940, the receiver, pursuant to order of court, duly sold and assigned such note to the plaintiff Charles H. Kerr.

On November 1, 1931, Schrempp died testate, seized of certain real estate in said county, but owning no personal property whatever at the time of his death. By his will he devised such real estate in certain proportions to his wife and children, who, as such devisees, ever since the death of Schrempp have been and are the owners of such real estate.

On January 2, 1942, the plaintiff brought this action to recover on said note against the defendant devisees of such real estate, asking that judgment be entered against the defendants for the amount due on the note, to be satisfied out of such real estate, apportioned in accordance with the respective interests of the defendants. Louis Engelmann was also made a codefendant, but thereafter on motion of plaintiff the suit was dismissed as to him.

Sec. 12, ch. 59, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 55.12], covering the subject of “Frauds and Perjuries,” provides that: “When any lands . . . shall . . . be devised to any devisee, and the personal estate of the . . . devisor of such devisee shall be insufficient to discharge the just demands against such . . . devisor’s estate, such . . . devisee shall be liable to the creditor of their . . . devisor to the full amount of the lands ... as may . . . be devised to the said . . .. devisee; . . . and executions may be taken out upon any judgment so obtained against such . . . devisee, to the value of the said lands, . . . as if the same were his own proper debts. . . .”

There is no dispute about any of the facts.

As the case is presented the defendants make only two contentions why plaintiff should not recover.

The first contention of the defendants is that Louis Engelmann, who was a comaker of and a joint debtor on the note, was released from the payment of- such note by the release hereinafter referred to.

A plain, absolute, unconditional and unambiguous release of a joint debtor operates in law to release his co-obligor. (See Clark v. Mallory, 185 Ill. 227). The burden of establishing a release is upon the party relying upon it. (See Wallner v. Chicago, Consol. Traction Co., 150 Ill. App. 242, 53 C. J. p. 1277.)

Although the burden of proving such release was, in the first instance, on the defendants, the plaintiff, as a part of his evidence in chief, proved that on April 21, 1934, the bank receiver filed in the circuit court a petition in which it was alleged that on December 6, 1933, among the assets of the bank was a note for $1,050 dated and executed December 25,1931, by Edward Engelmann, Gertrude Engelmann and Louis Engelmann, and that on December 6, 1933, the bank receiver obtained a judgment by confession in the circuit court of Montgomery county for $1,267.82 on such note and against the signers thereof, including Louis Engelmann, that Louis Engelmann had agreed to turn over to the receiver all of his personal property, except $100 exemption, in consideration that the receiver release such judgment, and that all of Louis Engelmann’s property, consisted of certain personal property therein described. Such petition asked that the court authorize the receiver to accept such -personal property in satisfaction of such judgment. Plaintiff further proved that on April 21,1934, the circuit court entered an order authorizing the receiver to “accept said (personal) property in full settlement of said judgment.”

The defendants then introduced in evidence a release signed by the bank receiver, dated “this-day of January, 1934.” Such release recited that whereas Louis Engelmann was “heretofore” indebted to Nokomis State Bank, and whereas the receiver “has obtained judgment against said Louis Engelmann in the circuit court of Montgomery County, Illinois; and said Louis Engelmann and the undersigned having agreed to settle all of said Louis Engelmann’s indebtedness by his turning over certain property to the receiver . . . as payment in full of his indebtedness to same; and said property having been turned over to this receiver in strict accordance with the terms of his agreement; therefore know all men by these presents that I . . . receiver ... do hereby . . . release . . . Louis Engelmann ... of and fr'om all manner of actions, cause of actions, suits, debts, dues, accounts, bonds, covenants, contracts, agreéments, judgments, claims and demands whatsoever in law or equity which Nokomis State Bank or the undersigned, as receiver . . . ever had, now have or . . . hereafter can, shall or may have, for or by reason of any cause, matter or thing whatsoever, from the beginning of the world to the date of this instrument. ’ ’

This is the only release relied on by defendants.

The plaintiff contends that such release was executed under the aforesaid order of April 21, 1934, which authorized the receiver to compromise the judgment entered December 6, 1933. The defendants contend that inasmuch as the petition to compromise a judgment was filed April 21, 1934, approximately three months after the apparent execution of the release, the release being dated “January-, 1934,” therefore “most certainly the order relied upon by the appellant had to do with another judgment which involved additional parties, viz, Edward and Gertrude Engelmann.”

There is nothing in the record to show when the release was actually executed other than the fact that it was dated “the-day of January, 1934.”

If, as contended by defendants, the release relied on was not executed pursuant to or in connection with the order of April 21,1934, then there is nothing in the record to show that the court at any time authorized the receiver to execute such release. It is our opinion that there -is no presumption that the release relied on was duly executed pursuant to any order of court, and that unless the receiver was duly authorized by the court to compromise or release the indebtedness represented by the note sued on in the present case, the receiver was powerless to do so, and it is our opinion that the burden of proving that the receiver was duly authorized to execute such release was on the defendants and not on plaintiff. The receiver of a bank has only such authority as is conferred on him by statute or court decree. (Powell v. Voight, 348 Ill. 605; 9 C. J. S. p. 967, sec. 500.) A bank receiver has no authority to compromise or settle claims of the bank without'the approval of the court. (9 C. J. S. p. 971, sec. 501.)

If, as contended by the plaintiff, the release was based on the order of April 21, 1934, then in our opinion such order did not authorize the receiver to compromise or release any indebtedness of Louis Engelmann, other than the indebtedness represented by the judgment entered on December 6, 1933, which judgment, as will be noted, was based on an indebtedness having no connection with the note sued on in the present case.

Defendants argue that plaintiff as assignee is in no better position than would be the receiver to contest the validity of the release. Assuming this to be true, this did not relieve defendants from the necessity of proving a valid release.

It is our opinion that defendants have not maintained their defense of a release.

Moreover “the law is that ‘General words of release will be restrained in effect by the recitals contained in the instrument as applied to the subject matter ; and this is true in law as well as in equity. ’ ” (See Bassett v. Lawrence, 193 Ill. 494; Todd v. Mitchell, 168 Ill. 199, and Chicago Union Traction Co. v. O’Connell, 224 Ill. 428.) As to the release in question it will be noted that the general blanket terms of the release are preceded by the recital that whereas the receiver had obtained such judgment against Engelmann, and whereas Engelmann and the receiver had “agreed to settle all of said . . . Engelmann’s indebtedness. . . .” Applying to the facts in the present case the rules of construction laid down in the foregoing cited cases, it is also our opinion that, so far as the record before us shows, the release in question was not intended to release Engelmann from his liability on the notes sued on in the present case.

The only other defense contended for by defendants is that the cause of action is barred by the statute of limitations.

Sec. 15 of our Limitations Act (par. 16, ch. 83, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 107.275]) provides that ‘1 Actions on unwritten contracts . . . and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued.”

Sec. 16 (par. 17 of the same act [Jones Ill. Stats. Ann. 107.276]) provides that “Actions on . . . promissory notes ... or other evidences of indebtedness in writing, shall be commenced within ten years next after the cause of action accrued; . . . .”

The note sued on became due July 9,1932. This suit was brought on January 2, 1942, which was within the ten-year period provided for in said Section 16, but not within the five-year period provided for in said Section 15.

The defendants contend that the present suit is one of the “civil actions not otherwise provided for” within the meaning of sec. 15 of the Limitations Act, and therefore is barred by such sec. 15 because the cause of action against the defendants accrued on the death of the decedent and more than five years before the commencement of this suit. Such contention that this suit is one of the “civil actions not otherwise provided for” is based on the argument that inasmuch as the defendants could only be held liable because of the provisions of sec. 12 of the Statute of Frauds and Perjuries, it follows that the right of action of the plaintiff accrues from such statute and not from the promissory note, and that this action is in fact not on the note but on the statute, and the defendants cite cases such as Blaheslee’s Storage Warehouses, Inc. v. City of Chicago, 369 Ill. 480, holding that the five-year statute of limitations generally applies to actions based on statutes.

Defendants concede that the courts of this State have uniformly held that the general statutes of limitations (which includes secs. 15 and 16, supra) applies to actions such as the present case, brought under sec. 12 of the Statute of Frauds and Perjuries. (See Ryan v. Jones, 15 Ill. 1; Durflinger v. Arnold, 329 Ill. 93, and Trustees of Danvers Literary & Library Ass’n v. Skaggs, 280 Ill. App. 125.)

So far as we know, the case of Trustees of Danvers Literary & Library Ass’n v. Skaggs, supra, is the only reported Illinois decision which purports to pass on the question of what particular section of the general Limitations Act is applicable. In the Skaggs case the action was brought against the devisees of the deceased Skaggs to recover on a promissory note, as in the present case, and this court there said at page 135 of the opinion, “By their third plea appellees interposed the five-year statute of limitations. There is ho merit in this contention of appellees. This action was brought under Sections 10, 11 and 12 of the Statute of Frauds and Perjuries, . . . and the general statute of limitations alone applies to such actions.” The defendants say that such holding in the Skaggs case was dictum because (although the facts do not appear in the reported opinion) the printed abstract in said case on file in this court shows as a matter of fact (which on an examination of such abstract we find to be true) that the action was brought within five years after the death of Skaggs, and therefore this court there had no occasion to differentiate between the five and ten year statutes. This would seem to take away the value of the Skaggs case as a precedent.

The cases of Hauselt v. Patterson, 12.4 N. Y. 349, 26 N. E. 937, and Pyatt v. Waldo, 85 Fed. 399, are the only outside cases called to our attention which we have had access to that we consider in point. In the Hauselt case the action arose under a statute of frauds and perjuries similar to our statute. The court there said, “The contention that a recovery was barred by the statute of limitations is not sustained. Although the remedy, is given by the statute, the cause of action is founded upon an obligation of the ancestor of the defendants to pay the sum secured by the mortgage represented by his bond; and the statute of limitations is no more available to the heirs than it would have been to MeCunn if he had been living.” In the Pyatt case the court said: ‘ ‘ The question of the statute of limitations seems to be settled by Colgan v. Dunne, 50 Hun. 443, 3 N. Y. Supp. 309, and Hauselt v. Patterson, 124 N. Y. 349, 26 N. E. 937, both of which cases hold that, although the remedy is given by statute, the cause of action is founded upon, the obligation of the ancestor to pay the bond, and that the statute of limitations is no more available to the heirs than it would have been to the ancestor. The bond being under seal, by the statutes of New York the action may be brought within 20 years from its maturity as has been done.”

It is our opinion that the right of action of the plaintiff is not one of the “civil actions not otherwise provided for” within the meaning of the Limitations Act, and it is our opinion that, although the remedy is given the plaintiff by sec. 12 of the Statute of Frauds and Perjuries, yet the cause of action is founded on the obligation of the defendants’ devisor to pay the note sued on. Said sec. 12 does not make the defendants personally liable. A personal judgment cannot be rendered against them and no judgment can be rendered against them other than one to be satisfied only out of the real estate devised to them. (Branger v. Lucy, 82 Ill. 91, 93.)

For the reasons indicated the judgment of the circuit court is reversed and the cause is remanded to such court for further proceedings in due course consistent with this opinion.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Presiding Justice Dove.

license: Public Domain

text:
    Ruth Marshall, Formerly Ruth Weaver, etc., et al., Appellants, v. B. F. Goodrich Company, Appellee. Max C. Hepler and Roy C. Voelz, Copartners, Trading as Liberty Drive Garage, Defendants.
    Gen. No. 9,991.
    Heard in this court at the October term, 1944;
    opinion filed February 8, 1945;
    opinion modified and rehearing denied April 30, 1945; released for publication May 1, 1945.
    Charles W. Hadley and Edwin R. Farrar, for appellants;
    Perry & Elliott, for appellee.
   Opinion by

Presiding Justice Dove.

Not to be published in full.


author: Justice Huffman.

text:
    Margaret Harris, Appellee, v. Illinois Power Company, Appellant.
    Gen. No. 9,999.
    Heard in this court at the October term, 1944;
    opinion filed February 8, 1945;
    rehearing denied April 30, 1945; released for publication May 1, 1945.
    Miller, Westervelt, Johnson & Thomason, for appellant; Eugene E. Johnson and David A. Nieoll, of counsel;
    Louis F. Knobloek, for appellee.
   Opinion by

Justice Huffman.

Not to be published in full.


author: Justice Wolfe.

text:
    Howard Parker, Appellant, v. Evin Woodard et al., as the Board of Education of Fairdale Community High School District No. 416, Appellees.
    Gen. No. 10,001.
    Heard in this court at the October term, 1944;
    opinion filed February 8, 1945;
    released for publication May 2, 1945.
    George Spitz, for appellant.
    Lowell B. Smith, for appellees.
   Opinion by

Justice Wolfe.

Not to be published in full.


author: Mr. Presiding Justice Sullivan

text:
    Commercial Credit Corporation, Appellee, v. Albert J. Horan, Bailiff of Municipal Court of Chicago et al. On Appeal of Emma Hammond and Minerva Edmett, Appellants.
    Gen. No. 43,291.

      Heard in the second division of this court for the first district at the December term, 1944.
    Opinion filed April 19, 1945.
    Released for publication May 2, 1945.
    Paul G. Sullins, of Chicago, for certain appellants.
    Hassenauer, McKeown & Trussell, of Chicago, for appellee; Edward P. McKeown and J. Edward Jones, both of Chicago, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

This is a trial of right of property proceeding. Emma Hammond and Minerva Edmett procured a judgment for $423.47 against Samuel Leibold. They caused an execution to issue based on said judgment on May 10, 1944 and delivered it to the bailiff of the municipal court of Chicago who through one of his deputies made a levy on the Packard automobile involved herein. Plaintiff, Commercial Credit Corporation, instituted this action against Emma Hammond, Minerva Edmett and the bailiff of the municipal court of Chicago, as defendants, claiming ownership and possession of said automobile by reason of a Trust Receipt Financing transaction between it and Pearson Motor Sales, on April 8, 1944, as a result of which it became vested with a security interest in the Packard automobile (hereinafter for convenience referred to as Packard or automobile or car), which constituted a prior lien on same. The case was tried by the court without a jury and finding and judgment were entered in favor of plaintiff. Defendants Emma Hammond and Minerva Edmett appeal.

The Uniform Trust Receipts Act (pars. 166-187, ch. 121½, Ill. Rev. Stat. 1943 [ Jones Ill. Stats. Ann. 135.17 (1)-135.17(22)]) went into effect in this state in July 1935. Section 2, par. 167 of said Act, in so far as it is applicable to the situation presented here, provides as follows:

“What constitutes trust receipt transaction and trust receipt. (1) A trust receipt transaction within the meaning of this Act is any transaction to which an entruster and a trustee are parties for one of the purposes set forth in subsection three of this section, whereby . . . (c) the entruster gives new value in reliance upon the transfer by the trustee to such entruster of a security interest in goods ... in possession of the trustee and the possession of which is retained by the trustee; provided that . . . the giving of new value . . .
“(I) Be against the signing and delivery by the trustee of a writing designating the goods , . . concerned, and reciting that a security interest therein . . . has passed to or will pass to, the entruster
“ (II) (2) A writing such as is described in subsection one, paragraph (I), of this section signed by the trustee, and given in or pursuant to such a transaction, is designated in this Act as a ‘trust receipt’. No further formality of execution or authentication shall be necessary to the validity of a trust receipt.
“(3) A transaction shall not be deemed a trust receipt transaction unless the possession of the trustee thereunder is for a purpose substantially equivalent to any one of the- following:
“(a) In the case of goods . . . for the purpose of selling or exchanging them, or of procuring their sale or exchange. . . . ”

Under the terms of the Act where the trustee (borrower) has in his possession goods which are the subject matter of the trust receipt transaction and retains same in his possession, the security interest or lien of the entruster (lender) attaches to such goods when the trust receipt is executed and the loan is received by the trustee and is valid for 30 days thereafter without notice or filing of any kind. If within said 30 days a Statement of Trust Receipt Financing is filed with the secretary of state by the entruster “such filing shall be effective to preserve his security interest in . . . [the] goods against all persons,” with certain exceptions, none of which is applicable here. (Pars. 172 and 173, ch. 121½, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 135.17(7), 135.17(8)].)

The principal purpose of the Act wag to facilitate the financing of sales and other transactions and to afford the “lender every conceivable protection in handling trust receipt and pledge transactions, so that the use of these security devices may be increased.” (Professor Bogart, December 1935 issue of the University of Chicago Law Review, Vol. 3 (1), p. 38.) "While the Act was intended to afford' protection to the entruster principally against other creditors of the trustee, the security interest of .the entruster is also protected thereunder as against any person, other than a creditor of the trustee, who claims title to or an interest in the goods which are the subject matter of the trust receipt transaction. Here no other creditor of the trustee is claiming any right in or to the Packard but the defendants herein, judgment creditors of Samuel Leibold, claiming that the car ivas in the possession of the latter when the levy was made upon it, challenge the validity of plaintiff’s trust receipt transaction with Pearson Motor Sales (hereinafter referred to as Pearson).

To sustain the validity of its trust receipt transaction with Pearson and of its security interest in the automobile at the time it was levied upon by the bailiff to satisfy defendants’ judgment against Leibold, plaintiff presented in evidence six documentary exhibits. The first exhibit consisted of two bills of sale executed by Pearson on April 7, 1944 which cover eleven automobiles, including the Packard, and show the total sale price of said cars as $6,920, the Packard being listed at $700. The bills of sale warranted that Pearson was the absolute oAvner of the eleven cars and purported to transfer the title of them to plaintiff free and clear of encumbrances. The second exhibit consisted of two trust receipts from Pearson to plaintiff covering the same eleven' ears described in the bills of sale. Pearson executed the trust receipts on April 8, 1944 and agreed therein among other things that as trustee he would hold the automobiles in trust for the entruster; that he would deliver them to the entruster on demand; that his possession as trustee was for the purpose of selling the automobiles at retail in the usual course of business; that he would not encumber them; that he would not sell them at less than the minimum sale price at which each car was listed in the trust receipt, which as to the Packard was $700; and that he would immediately after the sale of each car deliver to the entrustar from the proceeds of such sale the said minimum price. The third exhibit is a Statement of Trust Receipt Financing executed by plaintiff and Pearson on April 8,1944 and filed in the office of the secretary of state on April 18, 1944. The fourth exhibit is a draft drawn by Pearson on April 8, 1944 on plaintiff for $6,920 payable to Pearson Motor Sales, 2252 No. Cicero avenue. The amount of this draft was paid to Pearson. The fifth exhibit was plaintiff’s notes receivable record showing that Pearson had not paid his indebtedness on the Packard car.

From the evidence thus far related there can be no question but that as to the Packard plaintiff and Pearson entered into a valid trust receipt financing transaction within the requirements of the Trust Receipts Act, if Pearson owned and had title to said car at the time of such transaction. In order to establish Pearson’s title to and ownership of the car at the time he executed and delivered 'his trust receipt covering same, plaintiff introduced in evidence as its exhibit 6 the original certificate of title issued on this car by the secretary of state on February 5, 1940 to one Carl O. Rinder. On the form of Assignment of Title on the reverse side of Rinder’s certificate of title, his signature appears as assignor or “seller” and said form was filled out to show that Rinder sold the car and assigned the title thereto to Pearson on March 11, 1944 and that Rinder’s assignment was acknowledged by one LeRoy Hodes as notary public. It conclusively appears from evidence thereafter presented that Rinder did not sell the car or assign the title thereto to Pearson on March 11, 1944 or at any other time. It also conclusively appears that plaintiff had no knowledge when it introduced exhibit 6 as to when or by whom said document was filled out to show that Binder sold the car and assigned the title thereto to Pearson on March 11, 1944. Exhibit 6 being of no avail as evidence to establish Pearson’s ownership of and title to the automobile at the time of the trust receipt transaction, plaintiff was compelled to resort to other evidence to prove the chain of title under which Pearson became the owner of and received title to the car.

Binder admittedly had valid title to the car. He testified that he purchased it new from the Packard Motor Company on January 26, 1940; that he sold it to Hodes Motors, Inc., on July 8, 1941, being allowed $817.75 on same as trade-in-value on another car which he purchased from the Hodes company; and that when he consummated this transaction with the Hodes company he merely turned over his certificate of title to it after placing his signature as assignor on the Assignment of Title form on the reverse side thereof and that his signature was not acknowledged nor was any notary public’s signature or seal placed on said Assignment of Title form at that time or at any other time in his presence.

B. I. Severans, who had been engaged in the automobile business for 22 years up to July 1, 1944 as the Beliable Motor Sales, testified that he purchased the Packard from the Hodes company for $600 cash on July 11,1941 and received a bill of sale therefor. This bill of sale was received in evidence. He- further testified that he received a written order, dated March 10, 1944, signed by Pearson for the purchase of the Packard and two other cars, which order was received in evidence; that he sold the three automobiles to Pearson for $2,500 cash and delivered them to him on said date and that at that time he also delivered to Pearson the original certificate of title to the Packard issued to Binder, which then contained on the Assignment of Title form on the reverse side thereof the signature of Binder and that of LeBoy Hodes as notary public, and that there was neither a date nor the name of an assignee thereon at that time.

Pearson testified in substance that he bought the Packard with two other cars from Severans on March 10, 1944 and paid him $2,500 for them; that he received from Severans when he purchased the Packard the original certificate of title to same issued to Binder, which contained on the reverse side thereof everything that appeared thereon at the time of the trial except the name of the purchaser and assignee and that he placed thereon with a stamp “Pearson Motor Sales, 2252 North Cicero Avenue” in the blank space indicated on the form for the name of the purchaser and assignee, which he thought he had a right to do; that he had no used car license of his own when he purchased the Packard from Severans on March 10, 1944, when he entered into the trust receipt financing transaction with plaintiff on April 8, 1944 or when the car was levied upon by the bailiff on May 11, 1944; and that during March, April and May 1944 he was engaged in the used car business without á license, operating under Leibold’s license at 2252 North Cicero avenue.

The only evidence presented by defendants that could possibly have any bearing on the ownership of the car was the testimony of Evelyn Sullins and Michael Cosentino.

Evelyn Sullins testified that she was defendants’ attorney’s wife; that “four or five or more times” during April and May 1944, she visited a used car lot at 2252 North Cicero and on each of such occasions she saw Samuel Leibold in a small shack on said lot; and that each time she went there she saw a Packard car with “license 2536” on it, same being a 1944 Illinois license.

Michael Cosentino testified that he was a municipal court levy bailiff; that he made a levy on a Packard car on May 11, 1944 while it was in a used car lot at 2252 North Cicero avenue with about fifteen other cars; that the car had on it a 1944 Illinois license plate containing the number 2536 and that he saw on the wall in the small office on the lot.a license issued to Samuel Leibold as a used car dealer. It is conceded that dealer’s license plate No. 2536 was issued to Leibold.

Defendants contend that “the plaintiff has failed to maintain the burden of proving that its alleged trustee, Pearson Motor Sales, acquired title to the automobile, as the alleged documents on which it relies for such purpose are contradictory, perjured, and forged.”

Defendants’ argument in support of this contention is predicated primarily on the impeachment of the purported assignment of title to Pearson by Binder, the original owner of the Packard, as evidenced by plaintiff’s Exhibit 6.' We have already stated that the value of that document as evidence of a transfer of ownership or title to Pearson was completely destroyed by other evidence in the case. But entirely disregarding said purported assignment and eliminating.it from consideration, there is other undisputed evidence in the record that shows beyond question that Pearson purchased the Parkard from Sever-ans on March 10, 1944 and that he had a valid title to it when he executed his trust receipt on April 8, 1944 covering this car and on the same day received his loan’ from plaintiff, thereby consummating the trust receipt financing transaction. Plaintiff proved the entire chain of title to the car from Binder, the original owner thereof, to Pearson. Binder sold the car to the Hodes company for a valuable consideration. The Hodes company sold the car to Severans for a valuable consideration. Severans sold the car to Pearson for a valuable consideration. Even though the title to the car was not transferred or assigned in the course of the successive sales in conformity with the provisions of section 7(d) of the Uniform Motor Vehicle Anti-Theft Act (par. 80, ch. 95, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 85.081]), nevertheless a valid contract of sale was consummated and the title to the car passed in each instance under section 3 of the Uniform Sales Act (par. 3, ch. 121½, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 121.07]), which provides:

“Subject to the provisions of this act and of any statute in that behalf, a contract to sell or a sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of mouth, or may be inferred from the conduct of the parties.”

In L. B. Motors, Inc. v. Pritchard, 303 Ill. App. 318, where title to an automobile was acquired under a conditional sale contract but a certificate of title to it was not obtained from the secretary of state, it was urged that the owner of such automobile could not give good title. There the court said at p. 323:

“. . . The Motor Vehicle Law and the Uniform Motor Vehicle Anti-Theft Act both provide penalties for those persons who do not comply with the provisions thereof. These acts, in our opinion, were not intended as recording statutes and do not in any way alter, modify or change the effect of the provisions of the Uniform Sales Act as construed by our courts and have no application to the facts disclosed by this record. Mason v. Shelton, 292 Ill. App. 640, 11 N. E. (2d) 224; People v. Billardello, 319 Ill. 124.”

(Commercial Credit Co. v. Schreyer, 120 Ohio St. 568, and Smith v. Rust, 310 Ill. App. 47, are also to the same effect.)

In our opinion, the evidence shows conclusively that Pearson had title to the Packard at the time lie entered into the trust receipt transaction with plaintiff. As a result of that transaction, which complied with the applicable requirements of the Trust Receipts Act, plaintiff obtained a security interest in the car, which was valid at the time said car was levied upon. It will be noted that defendants made no effort to prove that Leibold, their judgment debtor, owned or had title to or any interest in the car. The only evidence introduced by them was that Leibold had a used car dealer’s license and that the car was on the premises where he conducted his business with his dealer’s license plate on it when the bailiff made the levy and for some time prior thereto. The mere fact that the automobile was in Leibold’s possession, if it was, at the time the levy was made and for some time prior thereto did not and could not destroy plaintiff’s security interest in it. In so far as defendants are concerned, plaintiff’s security interest could only have been defeated, if Pearson, having “liberty of sale,” had sold the Packard to Leibold in the ordinary course of trade without knowledge on the part of Leibold of the trust receipt transaction (par. 174, sep. 9(c) of the Act [Jones Ill. Stats. Ann. 135.17(9), subd. (c)]). However, there is no evidence in the record that Leibold purchased the car from Pearson or that he had or claimed to have any interest therein. Even though Leibold apparently had possession of the car at the time of the levy, such possession alone did not affect the validity of plaintiff’s security interest. But as has been seen, even Leibold’s possession of the Packard when the levy was made was controverted upon the trial. Pearson testified, and his testimony was undisputed, that the car was in his possession at the time the levy was made; that while he had no used car dealer’s license himself at the time in question, he operated as such under Leibold’s license at the latter’s place of business. While Pearson’s engagement in business as a used car dealer without a license in violation of section 12 of the Uniform Motor Vehicle Anti-Theft Act (par. 85, ch. 95½, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 85.086]) at the time of the levy and prior thereto might subject him to prosecution and punishment, it could not militate against the validity of plaintiff’s security interest in the Packard.

Defendants also contend that “plaintiff’s alleged transaction with Pearson Motor Sales is not a trust receipt transaction under the Uniform Trust Receipts Act, for the reason that the alleged trustee is not shown to have had possession of the -automobile for the purpose of selling or exchanging it, or of procuring its sale or exchange.” This contention does not merit serious consideration. In view of the evidence in this ease it is idle to urge that Pearson did not have possession of the Packard for the purpose of selling or procuring its sale at the time- the trust receipt transaction was consummated. We deem it unnecessary to recite in detail the evidence in the record showing that Pearson’s possession of not only the Packard but of the other ten used cars involved in the trust receipt transaction was for the sole purpose of selling them or of procuring their sale. Undisputed evidence, most of which has been heretofore set forth, clearly established Pearson’s possession of the Packard for such purpose. Pearson at the time of the trust receipt transaction and prior thereto was engaged in the business of buying and selling used cars and he was continuously engaged in that business up to the time of the trial. That he had eleven used cars, including the Packard, in his possession at the time of the trust receipt transaction is undisputed by any evidence in the record and it is preposterous to guess or theorize that his possession of them may have been for some purpose other than to sell them or to procure their sale.

Defendants’ argument in support of their instant contention is replete with misstatements as to the facts and the law, of which the following is an illustration: “The plaintiff has failed to offer one shred of evidence as to any fact which would have put defendants, or the world, or any third party, on notice that Pearson or Pearson Motor Sales had or claimed some interest in the car, and that they might be holding as trustee for plaintiff. Under such circumstances, the filing with the secretary of state of an alleged statement of trust receipt financing executed by Pearson Motor Sales was meaningless, and conferred on plaintiff no rights whatever as against these defendants.” We have heretofore discussed the provisions of the Act under which an entruster’s security interest attaches to the goods which are the subject matter of a trust receipt transaction and the manner in which the validity of such security interest may be preserved. The impropriety of the foregoing statement can only be attributed to counsel’s unfamiliarity with the provisions of the Uniform Trust Receipts Act, the validity of which was upheld in the recent case of Donn v. Auto Beaters Inv. Co., 385 Ill. 211.

Other points have been urged and considered but in the view we take of this case we deem it unnecessary to discuss them.

We are impelled to hold that defendants wrongfully caused the levy to be made on the Packard, that plaintiff had a valid security interest in said automobile at the time the levy was made on it and that the trial court did not err in finding the right of property in the Packard automobile in question in plaintiff.

For the reasons stated herein the judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

Friend and Scahlan, JJ., concur.


author: Mr. Justice Friend

text:
    Margaret M. Prendergast, Appellant, v. Retirement Board of Firemen’s Annuity and Benefit Fund of Chicago, Appellee.
    Gen. No. 43,073.
    Heard in the second division of this court for the first district at the June term, 1944.

      Opinion filed April 19, 1945.
    Released for publication May 2, 1945.
    Emmett M. McDonald and Earl Wilcox, both of Chicago, for appellant.
    Barnet Hodes, Corporation Counsel, and George F. Mulligan, Assistant Corporation Counsel, for appellee ; George F. Mulligan, Jr., of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

The petitioner, Margaret M. Prendergast, appeals from an order of the circuit court quashing a writ of certiorari issued upon her petition to review a record of the Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago which had denied her application to have her name placed upon the compensation annuity roll of the board as a widow annuitant on the ground that she is the widow of a deceased fireman who died as the result of injuries sustained by him in the line of duty.

The facts disclose that her husband, Joseph M. Prendergast, was appointed a fireman in the Fire Department of the City of Chicago during the summer of 1935 and served in that capacity until the date of his death, February 8, 1942. January 23, 1942 he had been ordered to clean the windows of the bunk room of his company’s quarters at 209 North Dear-born street, and while standing on top of a high steam radiator and attempting to open the upper portion of a window, he slipped and violently fell astride the radiator, sustaining injury to his testicles and laceration of the scrotum. Two firemen in his squad immediately helped him to bed and examined his injuries. He was then sent to the Henrotin Hospital, received first aid treatment and against the advice of the attending physician who wanted him to remain in the hospital, he proceeded to his home, under instructions to rest, continue application of hot moist compresses and place himself in the care -of his family physician. On the succeeding day and several times thereafter, until February 6, he returned to the hospital for further treatment. Early in the morning of February 8 he collapsed' in the bathroom of his home and died shortly thereafter. .

The act creating the Firemen’s Annuity and Benefit Fund of Chicago (Ill. Rev. Stat. 1943, ch. 24, pars. 944.1 et seq. [Jones Ill. Stats. Ann. 100.286 et seq.']) provides for two classes of annuities for widows: (1) ordinary annuity, which is payable to the widow of a fireman who has died as the result of any cause other than an injury received in the performance of his duty and varies in amount according to the length of service of the fireman and the amount of his contribution to the fund; and (2) compensation annuity, as provided in section 33 of the Act (par. 944.33 [Jones Ill. Stats. Ann. 100.318]), which consists of an amount equal .to the difference between the widow’s ordinary annuity and the sum of $125 a month. In the instant case petitioner was granted ordinary annuity of $45 a month for herself and $10 a month for each of her three minor children, but her claim for compensation annuity, involving the question whether or not her husband’s death resulted from injuries received in the performance of duty, was denied pursuant to five hearings before the board, where both lay and medical witnesses, testified with respect to petitioner’s claim that a causal connection existed between the injuries sustained by Prendergast in the line of duty and the physical conditions from which he died. Finally, on November 17, 1942, the board of trustees, by a division of four to three, voted that petitioner’s compensation annuity be denied, and thereafter, April 27, 1943, she filed her petition for a writ of certiorari to review the proceedings.

The material evidence submitted to the board included the coroner’s photostatic copy of a death certificate stating that an inquest had been held after Prendergast’s death February 8, 1942 and certifying that the cause of death was the “result of hemorrhagic pancreatitis and hemorrhage into left adrenal gland due to external violence”; also a copy of the medical report of Henrotin Plospital submitted by Dr. A. J. Graham, giving a history of the case which stated that Prendergast was injured while washing windows through an accidental fall from a radiator, “straddling radiator as he fell,” causing him to sustain injury to his testicles and laceration of the scrotum. The physician noted that the patient was “suffering intense pain, as indicated by ‘drawn’ facial expression — and lower right side of abdomen — .” A notation on the record indicates that Prendergast returned to the hospital on the succeeding day, January 24, “suffering pain apparently as intense as previous day.” A notation dated January 27, 1942 indicated that the patient had returned on that day and that his “symptoms [were] not perceptibly changed.” February 2 and again February 6 he returned to the hospital, and on the latter date one fourth grain of phenobarbital was prescribed.

Petitioner, appearing as a witness in her own behalf, testified that her husband was in good health at the time of his injury; that after the accident he was not confined to bed because he had to go back and forth to the hospital; that he “did not go anywhere else except a couple of times he took the baby out for a walk and a couple of mornings he went to Mass; went nowhere else; did not complain of receiving any injury during any of these trips; . . . subject to fainting and spells of weakness after accident and he used to sometimes act like lie was crazy with pain; two or three times he fainted and had a lot of pain; was in pain two or three times a day but the rest of the time was all right. When he went to hospital he came right home. Had terrible pain in stomach; would scream with pain; took capsules that Doctor Graham gave him to stop pain; had extreme pain three or four times during day and maybe .once at night. Died when he got up at night and went to bathroom where he fell to floor and never regained consciousness. . . . From the time of injury to death, my husband on numerous occasions fell in a dead faint about the home as well as in the bathroom thereof. . . . Mr. Prendergast had not been drinking for two years. If he was drinking, I certainly did not know it. ” M. J. Corrigan, fire commissioner, stated: “I know that he [Prendergast] hadn’t been drinking for the last two years.”

Roy McCarthy, a member of his fire squad, testified that he saw Prendergast standing on the radiator washing windows in the bunk room, heard him fall, and together with Lt. Edward L. Piper, assisted bim to bed and examined his injuries; that he was in good physical condition up to the time of the accident; that after the accident “he was in pain. He lay down ■there and gasped after his fall.”

Piper stated that after the fall Prendergast was conscious and in pain. “He lay there for awhile till he got his breath. He had a hard time breathing. Then he got up and walked awhile; he said he was in pain. . . . He had pain in the groin. . . . Prendergast was in good physical condition before that time and his health appeared good; he was active and he never complained of any sickness.”

Dr. Coye C. Mason, the coroner’s physician, performed an autopsy on Prendergast and made the. following findings: “He had hemorrhagic pancreatitis, traumatic in origin. There are two causes of pancreatitis, one infectious and the other traumatic. The infectious type is due usually to obstructions of the pancreatic duct, usually a gallstone. In this case, the entire gall bladder tract and the various bile ducts, were dissected out and in no instance could I find such a condition of infection. There were lacerations which are accompanied with trauma and the amount of hemorrhage into the abdomen related with such findings in the abdominal cavity was consistent with traumatic pancreatitis. Some ldnd of injury to the abdomen would produce this ldnd of pancreatitis. The autopsy indicated an injury and ecchymosis in the pelvic region resulting from that injury. I think there was an ecchymosis. That is a discoloration with hemorrhage in the right inguinal area, in the groin, the right groin. ... A sample of blood was also taken for an alcoholic determination and it was found 0.07 per cent grain alcohol was found, which is not sufficient to kill an individual. ... In my opinion his death came from this hemorrhage. To my knowledge the amount of alcohol shown in the toxicological report could not have been an influencing cause for the existence of the hemorrhage and I looked for such things.” (Italics ours.)

On redirect examination by the attorney for the board, Dr. Mason testified that “the injury caused by Prendergast’s striking his stomach or that portion of his body on a radiator sixteen days before death can be associated with the cause of his death. I went over that in my mind when I was summing up this case and from the history that I was able to gain from the family as to the .man’s complaints leading up to his death I can associate the pancreatitis with his complaints, because when we opened the abdomen there were multiple areas throughout the abdomen of necrosis of the tissues . . . and every time you get one of these necrotic areas in the abdomen he would get pain, and as I understand, he went to his doctor and complained of this pain occasionally and it was that acute abdominal pain in the home that caused him so much grief. . . . The pancreas was lacerated and the juices are thrown out into the abdomen and cause pains of every organ they come in contact with .... Considering the relative action of this organ it is possible for a man having the condition described to be able to walk around, go down town and go out on the street. In other words, in my opinion, this hemorrhagic condition was a gradual development following the trauma and not a rapid development. ... A pain in the abdomen on the day of the injury could have escaped the doctor’s notice because pain from an injury to the testicle is extreme at the time. His complaints later were referable to the abdomen. The only way I can explain these dizzy spells is injury to the adrenal gland. When I examined the-body at post he had a black eye on the right side. The color was fairly intense. It was of recent origin. There were three lacerations of the skin of the forehead.”

Dr. H. L. Foltz, another physician called by the board, testified that he treated Prendergast for a small laceration in the scalp on the Saturday preceding his death. It was not bleeding at the time. Dr. Foltz dressed and cleaned, but did not suture, the wound. He was called to Prendergast’s home at 2:00 a. m: Sunday morning and found him dead on the-bathroom floor. The witness testified that Prendergast did not appear to be under the influence of liquor when he saw him. “I did nót smell any.” In response to further examination Dr. Foltz testified that he was familiar with the cause given for Prendergast’s death and stated: that he could have been suffering from hemorrhagic pancreatitis two weeks prior to the date he examined him. “In case the hemorrhagic pancreatitis was a slow hemorrhage it would be possible for - the man to get around for two weeks after the accident. Hemorrhagic pancreatitis could have caused the incoherence which I observed. I would say that the abrasion to the head could very well be caused by a fall due to a dizzy spell and I would say this physical condition as I saw it could very possibly be due to Prendergast’s coming out of this dizzy spell.”

Dr. John A. Graham, who first attended Prendergast at the Henrotin Hospital shortly after the accident occurred, elicited from him the history of the accident, and indicated on the hospital records that he fell, striking a radiator, while washing a window at the fire house. Dr. Graham testified that he complained of very severe pain in the testicles, especially on the right side. On examination he found bruises in that region and stated that he “could see the patient was suffering intense pain by the drawn expression on his face and he kept putting his hand to his side. I examined him and told him I wanted him to go up to bed which he did not do. Then I prescribed hot compresses and that he remain in bed at home. I saw him on the 24th and the symptoms were not perceptibly changed. He complained of very severe pain and I again advised him to come in, and on the 27th he returned and same advice given as to treatment and hospitalization with no perceptible change. He returned on the 6th of February and was prescribed for by my associate because I was in Mexico. . . . Now this man’s pain was characteristic of pancreatitis, except it was low down. There is no pain worse than pancreatitis. If a man ever has pancreatitis it compares favorably with labor pain. It is excruciating pain and doubles them up. This man was suffering excruciating pain. I could tell it in his face.” Counsel for the board then interrogated the witness as follows: “Q. What are the general causes of pancreatitis, Doctor 1 That is, hemorrhagic pancreatitis. A. Oh, I couldn’t tell you. An injury may produce it. That I couldn’t tell you. The pancreas is one of our eyesores, and it- is pretty much unexplored yet. It is a hard thing to tell that. Q. What is the difference between ordinary pancreatitis and hemorrhagic pancreatitis? A. You mean a chronic pancreatitis probably. - Q. Well, one that could be caused from a blood clot, which you assume could have caused it. A. Well, we would consider that a hemorrhagic pancreatitis, and it hits the patient very quick and is very rapidly fatal. The pain and the symptoms stand out and the pain is very excruciating. Q. Then, Doctor, in answer to that question of associating the cause of death with the injury, remembering that two weeks elapsed between the injury and the cause of death, you say that that is possible? A. It is not possible. It is quite probable. Q. Probable. A. Because we.consider that a disease that kills within two weeks quite an acute affair. Q. Acute? A. Yes. Q. When would the existence.of the hemorrhagic pancreatitis first manifest itself prior to the death of February 8th? A. Well, as I look back on it now, those symptoms he complained of after coming in the second time, or the first time, were, in my opinion, probably the forerunner of hemorrhagic pancreatitis.” Dr. M. V. Grino, called as a witness by the board, stated that he saw Prendergast only once, early in February. He testified that “I put a suture in his head and gave him some paraldehyde to quiet him down. The scalp wound was not very large and was right in the occipital region. ... It was about two or three in the afternoon and the wound was a couple hours old. The wound was about one-half or three-quarters inch in length. I think it was on Saturday, the 7th. He died the next day.. There was a radiator, bath tub, wash basin and usual fixtures in bathroom. AH I can recall is suturing the wound . . . . Prendergast was pretty restless. He was threshing around in bed.”

The law is well settled that on a common-law writ of certiorari the only province of the trial court is to consider the record and ascertain whether the board had jurisdiction, whether it exceeded its jurisdiction, whether it proceeded according to law and acted on evidence, and whether there is anything in the record which fairly tends to sustain the action of the board; and where the inferior tribunal is not arbitrary in its finding and there is evidence in the record of its proceedings which fairly tends to support the finding, a reviewing court is not justified in substituting its judgment for the discretion and judgment of the inferior tribunal. Kilroy v. Retirement Board of Park Policemen’s Annuity and Benefit Fund, 297 Ill. App. 261. The question therefore presented is whether the board in the instant proceeding was justified in finding, as it did, that plaintiff had failed to produce satisfactory evidence as to the causal connection between the accident and death. In other words, was there any evidence in the record which fairly tends to sustain the action of the board? We have heretofore set forth the evidence at considerable length. Aside from the testimony of Mrs. Prendergast and two firemen, the evidence consisted of hospital records, the coroner’s certificate of death and the medical testimony of four physicians. The coroner’s death certificate and the medical testimony clearly show that Prendergast died as a result of complications brought on by hemorrhage of the pancreas following injuries sustained by him on January 23. No medical testimony to the contrary was introduced. As stated in Peters v. Sacramento City Employees’ Retirement System, 27 Cal. App. (2d) 10, 80 P. (2d) 179, “in cases of this character it is imperative to rely upon the testimony of those skilled in the science concerning which they are called upon to express an opinion, and their conclusion is conclusive on the question. Thus in Simpson Construction Co. v. Indusirial Accident Commission, 74 Cal. App. 239, 240 P. 58, it was held that (page 59) ‘whenever the subject under consideration is one within the knowledge of experts only, and is not within the common knowledge of laymen, the expert evidence is conclusive upon the question in issue. ’ ” We think this is a fair expression of the rule to be invoked in cases of this kind. Three witnesses testified that Prendergast was in good condition before the accident, and there is no evidence to the contrary. He was active and complained of no illness. The coroner’s physician found that death was caused by hemorrhagic pancreatitis, traumatic in origin. His testimony, based upon the autopsy performed- on Prendergast, definitely excluded the' infectious type of pancreatitis. He stated that the autopsy indicated an injury and that the hemorrhagic condition was a gradual condition following the trauma rather than a rapid development. Dr. Graham described the excruciating pain as characteristic of pancreatitis, and was of opinion that an injury could produce that condition. When asked whether it was possible to associate the cause of death with the injury the witness replied: “It is not possible. It is quite probable.” Counsel for the respondent profess to be confused over the meaning of the answer, but it seems to us quite clear that it indicates a strong likelihood of the causal connection between the injury and death. Prendergast was approximately 36 years old at the time of the accident.- He was admittedly engaged in the performance of his duty. The record clearly shows that symptoms of the injury from which he subsequently died began to manifest themselves immediately after he was injured. Dr. Mason stated that pain in the abdomen following the injury could have escaped the attending physician’s notice because pain from an injury to the testicle is extreme at the time, and he pointed out that Prendergast’s complaints later were referable to the abdomen. We have carefully examined the entire record in this proceeding. Nothing therein suggests even remotely that Prendergast died from any other cause than a ruptured pancreas, and all the evidence fairly tends to prove that such injury resulted from the accident in the fire house. We find no evidence tending to sustain the action of the board, as expressed by the majority of four who voted in favor of denying the petition for compensation annuity.

For the reasons indicated, the order of the circuit court, quashing the writ, is reversed, and the cause is remanded with directions that the decision of the board be quashed and that an order be entered' granting petitioner her statutory right to a widow’s compensation annuity, as prayed.

Order reversed and cause remanded with directions.

Sullivan, P. J., and Scanlan, J., concur.